Expert Knowledge and Legitimacy in the Law-making Process

Abstract

First, I reconstruct the way in which Canale presents the problem of the (il)legitimacy of opaque provisions, i. e., texts to which the legislator grants the rank of law, despite not understanding its meaning, out of deference to a supposed theoretical authority. In this reconstruction, I underwrite several problematic aspects. Then I evaluate his response. I find it insufficient in that it does not offer us any categorical solution to the problem. Under the plausible assumption that these dispositions are illegitimate (and that Canale would share this thesis), I propose a dilemma: since we cannot do without opaque expert knowledge except by paying high epistemic costs, then we must choose between legitimacy and knowledge. Finally, I offer a way out of the dilemma by denying that such provisions are always illegitimate.