The legal methods through which one adopts and implements policy decisions profoundly affect the compatibility of policy implementation with democratic legitimacy and legal certainty of the rule of law. Indeed, the choice of legal methods can be as important as the formulation of the policy itself. While a good choice of methods will not heal a bad policy, it can help assure that a less-than-perfect choice of policy can be more forcefully realized than otherwise, it can also help improve the policy choices made and help protect democratic legitimacy and the rule of law. While deficiencies in legislation or in the political system may require resort sometimes to policy decisions in the course of law application, legislatures should minimize mixing policy decisions with law application. One of the simplest ways of promoting policy while safeguarding the rule of law is to restrict the effect of policy decisions to the future. In any case, policy decisions can ordinarily be expected to be better made when they are recognized as such, are made by institutions created to make policy decisions, and are reached by decision makers who can appeal to political responsibility as a basis for their decisions.
Policy and Methods: Choices for Legislatures, in Politics of Law and Legal Policy: Between Modern and Post-Modern Jurisprudence, Tadeusz Biernat and Marek Zirk-Sadowski, eds., Warsaw: Wolters-Kluwer Polska, 316, 2008