Law-making, Politics & Society
Leiden University
LLM in Law and Society
2021-2022
Semester 1 block 1
, LEIDEN UNIVERSITY LAW-MAKING, POLITICS & SOCIETY
Table of Contents
Lecture 1: Policy-Making Process............................................................................................. 3
Lecture 2: Criminalisation Process .......................................................................................... 16
Lecture 3: Law-Making in a Globalised World ...................................................................... 28
Blog I ....................................................................................................................................... 42
Lecture 4: Inter-legality and Jurisdiction ................................................................................ 48
Seminar 1: Blog I Presentations .............................................................................................. 55
Lecture 5: Risk, Precaution and Legislation............................................................................ 56
Blog II ...................................................................................................................................... 67
Lecture 6: Towards a Culture of (Social) Control ................................................................... 73
Seminar 2: Blog II Presentations ............................................................................................. 86
Lecture 7: Exceptional Times, Exceptional Legislation? ........................................................ 87
Blog III .................................................................................................................................. 100
Lecture 8: Counterterrorism .................................................................................................. 107
Seminar 3: Blog III Presentations.......................................................................................... 118
Lecture 9: Prevented Effects of (Counterterrorism) Legislation ........................................... 119
Lecture 10: Evaluation of Legislation ................................................................................... 124
Group Project......................................................................................................................... 134
Exam ...................................................................................................................................... 139
Syllabus ................................................................................................................................. 147
– 2 –
, LEIDEN UNIVERSITY LAW-MAKING, POLITICS & SOCIETY
LAW-MAKING, POLITICS & SOCIETY
Lecture 1: Policy-Making Process
08/09/2021
Bacchi, C. (2009) ‘Introducing a ‘what’s the problem represented to be?’ approach to
policy analysis’ (Chapter 1) in Analysing Policy: What’s the Problem Represented To
Be?
• The approach to policy analysis introduced in this book challenges the commonplace
view that policy is the government's best attempt to deal with 'problems'
• In this conventional understanding of public policy, governments are seen to be reacting
to fixed and identifiable 'problems' that are exogenous (outside) the policy process
• Hence, the focus of analysis is limited to competing ways of 'solving' policy problems
and the terms in which specific policy problems are understood are left unexamined
• By contrast, a 'what's the problem represented to be’ approach offers a different way to
think about policy
• It suggests that, if you look at a specific policy, you can see that it understands the
'problem 'to be a particular sort of 'problem'. Policies, therefore, constitute (or give
shape to) 'problems'
• Hence, rather than reacting to 'problems', governments are active in the creation (or
production) of policy 'problems'
The approach
1. What's the 'problem' (e.g. of 'problem gamblers', ‘'drug use/abuse', domestic violence,
global warming, health inequalities, terrorism, etc.) represented to be in a specific
policy?
2. What presuppositions or assumptions underlie this representation of the 'problem'?
3. How has this representation of the 'problem' come about?
4. What is left unproblematic in this problem representation? Where are the silences? Can
the 'problem' be thought about differently?
5. What effects are produced by this representation of the 'problem'?
6. How/where has this representation of the 'problem' been produced, disseminated and
defended? How could it be questioned, disrupted and replaced?
Apply the list of questions in a WPR approach to your own problem representations: the need
for reflexivity
• Self-analysis or reflexivity of this kind is necessary because we are immersed in the
conceptual logics of our era and because who we are, as just considered under Question
5, is at least in part shaped through the very problem representations we are trying to
analyse
• As a result, we have to accept that, as researchers, we have work to do in ensuring that
we do not simply buy into certain problem representations without reflecting on their
origins, purposes and effects
Practical guidelines
• Text selection
o The kind of text selected for examination is fairly open-ended
o Generally, it is wise to find a specific piece of legislation or a government report
as a place to start
– 3 –
, LEIDEN UNIVERSITY LAW-MAKING, POLITICS & SOCIETY
o Given the almost endless variety and numbers of texts that could be selected, it
needs to be recognised that choosing policies to examine is itself an interpretive
exercise
• Complexity
o As with text selection, therefore, it is important to recognise the interpretive
dimension of the analytic process
o Be careful not to distort documents when choosing particular segments to
support an interpretation
o Acknowledge contesting positions within a document when they are apparent
• Context
o It is important to consider the web of policies, both historical and contemporary
surrounding an issue
o One reason this is so important is because context matters what you deduce
about the specific case you study will reflect the circumstances affecting it
• Nesting
o It is important to note that the questions in a WPR approach are not intended as
a one-off exercise
o Rather, they require repeated application due to the ways in which problem
representations 'nest' or are embedded one within the other
José Luis Díez-Ripollés (2019) ‘Chapter 3 Rationality in Criminal Law Making. Rational
Decision Making in a Complex Socio-Legislative Process’ in Conceptions and
Misconceptions of Legislation, ed. A. Daniel Oliver-Lalana
• Law making as a procedure of rational decision-making deserves to become a
preferential research field in criminal justice policy
• The evolution of criminal legislation throughout the last decades shows how strongly
influenced legislative decisions are by opportunistic, populist and short-sighted public
demands or political interests
• Any intention to build patterns of rational decision law making in criminal justice
policy requires a deep knowledge of the sociological and legal process that leads to take
legislative decisions, and of the social actors and institutions that are decisive along the
way
• The differentiation of the legislative process into three stages, pre-legislative,
parliamentarian, and evaluative, each one having various internal divisions, has already
proved its analytical capability
• Now, we are able to build a pattern of rational criminal law making
• The current paper brings forward a revised version of a model first proposed by Atienza
that allows us to identify five standards of rationality: ethical, teleological, pragmatic,
systematic and linguistic, as well as a transversal dimension
• All these components should get access in a differentiated way to the varied phases and
stages of the legislative process by means of political actors and policy makers
• The paper subsequently carries out a more precise analysis of the principles building
ethical rationality in criminal law making, and of the criterion for solving discrepancies
about the content of further rationalities
• A critical analysis of the main topics of procedural and substantive constitutional
review of criminal law making constitutes the final section of the paper
Introduction
• We need to adopt two complementary perspectives
– 4 –
Leiden University
LLM in Law and Society
2021-2022
Semester 1 block 1
, LEIDEN UNIVERSITY LAW-MAKING, POLITICS & SOCIETY
Table of Contents
Lecture 1: Policy-Making Process............................................................................................. 3
Lecture 2: Criminalisation Process .......................................................................................... 16
Lecture 3: Law-Making in a Globalised World ...................................................................... 28
Blog I ....................................................................................................................................... 42
Lecture 4: Inter-legality and Jurisdiction ................................................................................ 48
Seminar 1: Blog I Presentations .............................................................................................. 55
Lecture 5: Risk, Precaution and Legislation............................................................................ 56
Blog II ...................................................................................................................................... 67
Lecture 6: Towards a Culture of (Social) Control ................................................................... 73
Seminar 2: Blog II Presentations ............................................................................................. 86
Lecture 7: Exceptional Times, Exceptional Legislation? ........................................................ 87
Blog III .................................................................................................................................. 100
Lecture 8: Counterterrorism .................................................................................................. 107
Seminar 3: Blog III Presentations.......................................................................................... 118
Lecture 9: Prevented Effects of (Counterterrorism) Legislation ........................................... 119
Lecture 10: Evaluation of Legislation ................................................................................... 124
Group Project......................................................................................................................... 134
Exam ...................................................................................................................................... 139
Syllabus ................................................................................................................................. 147
– 2 –
, LEIDEN UNIVERSITY LAW-MAKING, POLITICS & SOCIETY
LAW-MAKING, POLITICS & SOCIETY
Lecture 1: Policy-Making Process
08/09/2021
Bacchi, C. (2009) ‘Introducing a ‘what’s the problem represented to be?’ approach to
policy analysis’ (Chapter 1) in Analysing Policy: What’s the Problem Represented To
Be?
• The approach to policy analysis introduced in this book challenges the commonplace
view that policy is the government's best attempt to deal with 'problems'
• In this conventional understanding of public policy, governments are seen to be reacting
to fixed and identifiable 'problems' that are exogenous (outside) the policy process
• Hence, the focus of analysis is limited to competing ways of 'solving' policy problems
and the terms in which specific policy problems are understood are left unexamined
• By contrast, a 'what's the problem represented to be’ approach offers a different way to
think about policy
• It suggests that, if you look at a specific policy, you can see that it understands the
'problem 'to be a particular sort of 'problem'. Policies, therefore, constitute (or give
shape to) 'problems'
• Hence, rather than reacting to 'problems', governments are active in the creation (or
production) of policy 'problems'
The approach
1. What's the 'problem' (e.g. of 'problem gamblers', ‘'drug use/abuse', domestic violence,
global warming, health inequalities, terrorism, etc.) represented to be in a specific
policy?
2. What presuppositions or assumptions underlie this representation of the 'problem'?
3. How has this representation of the 'problem' come about?
4. What is left unproblematic in this problem representation? Where are the silences? Can
the 'problem' be thought about differently?
5. What effects are produced by this representation of the 'problem'?
6. How/where has this representation of the 'problem' been produced, disseminated and
defended? How could it be questioned, disrupted and replaced?
Apply the list of questions in a WPR approach to your own problem representations: the need
for reflexivity
• Self-analysis or reflexivity of this kind is necessary because we are immersed in the
conceptual logics of our era and because who we are, as just considered under Question
5, is at least in part shaped through the very problem representations we are trying to
analyse
• As a result, we have to accept that, as researchers, we have work to do in ensuring that
we do not simply buy into certain problem representations without reflecting on their
origins, purposes and effects
Practical guidelines
• Text selection
o The kind of text selected for examination is fairly open-ended
o Generally, it is wise to find a specific piece of legislation or a government report
as a place to start
– 3 –
, LEIDEN UNIVERSITY LAW-MAKING, POLITICS & SOCIETY
o Given the almost endless variety and numbers of texts that could be selected, it
needs to be recognised that choosing policies to examine is itself an interpretive
exercise
• Complexity
o As with text selection, therefore, it is important to recognise the interpretive
dimension of the analytic process
o Be careful not to distort documents when choosing particular segments to
support an interpretation
o Acknowledge contesting positions within a document when they are apparent
• Context
o It is important to consider the web of policies, both historical and contemporary
surrounding an issue
o One reason this is so important is because context matters what you deduce
about the specific case you study will reflect the circumstances affecting it
• Nesting
o It is important to note that the questions in a WPR approach are not intended as
a one-off exercise
o Rather, they require repeated application due to the ways in which problem
representations 'nest' or are embedded one within the other
José Luis Díez-Ripollés (2019) ‘Chapter 3 Rationality in Criminal Law Making. Rational
Decision Making in a Complex Socio-Legislative Process’ in Conceptions and
Misconceptions of Legislation, ed. A. Daniel Oliver-Lalana
• Law making as a procedure of rational decision-making deserves to become a
preferential research field in criminal justice policy
• The evolution of criminal legislation throughout the last decades shows how strongly
influenced legislative decisions are by opportunistic, populist and short-sighted public
demands or political interests
• Any intention to build patterns of rational decision law making in criminal justice
policy requires a deep knowledge of the sociological and legal process that leads to take
legislative decisions, and of the social actors and institutions that are decisive along the
way
• The differentiation of the legislative process into three stages, pre-legislative,
parliamentarian, and evaluative, each one having various internal divisions, has already
proved its analytical capability
• Now, we are able to build a pattern of rational criminal law making
• The current paper brings forward a revised version of a model first proposed by Atienza
that allows us to identify five standards of rationality: ethical, teleological, pragmatic,
systematic and linguistic, as well as a transversal dimension
• All these components should get access in a differentiated way to the varied phases and
stages of the legislative process by means of political actors and policy makers
• The paper subsequently carries out a more precise analysis of the principles building
ethical rationality in criminal law making, and of the criterion for solving discrepancies
about the content of further rationalities
• A critical analysis of the main topics of procedural and substantive constitutional
review of criminal law making constitutes the final section of the paper
Introduction
• We need to adopt two complementary perspectives
– 4 –
