Experts call for higher quality laws as a pillar for legal certainty

The latest session of the cycle “Thursday Law at CUNEF Universidad” was held recently in the Auditorium of the Almansa Campus. Speakers Consuelo Madrigal, Prosecutor of the Criminal Section of the Supreme Court Prosecutor’s Office, Ángel de la Fuente, Executive Director of FEDEA, and Antonio Jiménez-Blanco, Full Professor of Administrative Law, addressed “The disastrous consequences of bad laws” in a discussion chaired by Andrés Betancor, Director of the Department of Law at CUNEF Universidad.

Andrés Betancor opened the debate by highlighting the difference between “legislative populism”, which uses laws as propaganda instruments, and “technically defective laws”. He stressed that “correcting a bad law is extraordinarily costly, and its harmful effects go beyond its specific scope, affecting the foundations of democracy”.

The speakers agreed that technical deficiencies in legislative drafting may entail serious consequences. Consuelo Madrigal illustrated this point by explaining how legislative oversights, such as the omission of a law’s transitional clauses, can lead to legal uncertainty and highly complex situations during enforcement. This type of oversight often gives rise to what Antonio Jiménez-Blanco called the “cobra effect”, describing laws that produce results contrary to those intended.

In addition to substantive errors, they pointed out the existence of more basic problems, such as lack of clarity or excessively complex wording, which make it difficult to understand and apply the rule. Ángel de la Fuente also mentioned “magic laws”, which expect to transform reality merely by being published in the BOE, without providing real compliance mechanisms. This phenomenon, they concluded, is not exclusive to Spain, and seems to be a universal challenge faced by public policy design.

The economic impact of regulation

On the issue of economic impact, the speakers discussed the potential adverse effects of well-intentioned regulation if market reactions are not anticipated. Ángel de la Fuente warned about the risks of contractual interference, explaining that “when a contract is retroactively modified to try to help the weaker party, it may end up harming them: the market adjusts to the new conditions, often excluding the most vulnerable”.

De la Fuente explained how measures like imposing rent limits can discourage investment and reduce the supply of available housing, achieving the opposite result to what the measure intended. This is why it is essential to conduct impact analyses that realistically assess potential consequences before approving a law. As Jiménez-Blanco lamented, there is an educational gap in this area: “In law schools, the laws themselves are studied extensively, but the practical application of those laws is neglected”.

The need to improve the legislative process

The speakers focused on the need to improve the legislative process. Far from proposing new procedures or bodies, Consuelo Madrigal advocated for “complying with existing legislative procedures. They do not need to be reformed, simply complied with.” For the prosecutor, this implies not only adhering to the phases of the ordinary legislative procedure, but also paying special attention to the quality of the drafting, aspiring to clear and precise rules where the language is “perpendicular to the fact”.

Ángel de la Fuente insisted on the importance of a real and effective impact evaluation beforehand, warning that evaluation agencies must be independent and have qualified personnel, and regretting that these conditions are often not met. Well-trained professionals are, therefore, key to any cultural progress. Antonio Jiménez-Blanco highlighted the need for lawyers with new skill sets, as well as “objective metrics and more scientific and arithmetic training”.

The experts agreed on the importance of strengthening regulatory techniques and evaluation mechanisms to guarantee legal certainty, economic stability and citizens’ trust in institutions. The procedures and methods exist, but they are not complied with, or not as rigorously as they should be.

With this seminar series on current legal topics, CUNEF Universidad offers a meeting space for academia and professional practice. The next session, “War and Contracts: The Impact of War on Contracts”, will be held on 23 April.

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