rather than clarity. Even on occasions where the law itself is clear, legislative history invariably introduces a moment of insecurity, and makes the process of statutory interpretation more difficult than it already is. Legislative history positively invites judges to make interpretations. Another important reason for rejecting legislative history, according to Scalia, is the lack of formal or constitutional legitimacy. Contrary to the law itself legislative history is not subject to mandatory discussion, voting and publication.The legislator is not obliged, according to any rule of public law, to discuss, formally approve or publish legislative history.The form, content and degree of availability of these materials thus depend entirely on choices and methods adopted by the legislator - or, in other words, on the good will of the legislator. Even if legislative history in some instances was proved to have a useful content, the production and publication of legislative history is a result of more or less irregular decision-making on the part of the legislator.This difference between law and legislative history is an oft-recurring argument against claims that legislative history constitutes a legitimate source of law.9 According to certain scholars, textualists or no, legislative history, for all these reasons, should not be used at all.10 The basic mistrust of legislative history is, of course, not limited to the American school of textualism.The textualist contentions may be construed as being nothing more than a particularly strict interpretation of a general principle of legality, or rule of law.The position of the European Commission is yet another expression of this principle of legality. In this case, it could perhaps be labelled the “principle of promulgation”, according to the reasons just mentioned. Since there is no public law regulation that obliges the Swedish government to make legislative history available, implementing EU law through legislative history obviously means that parts of EU law, however insignificant, are r i chard nordqu i st 199 and there is something for everybody [...] The variety and specificity of result that legislative history can achieve is unparalleled.”, p. 36. 9 “There simply are no legal criteria for determining the validity of materials of legislative history. [...] such materials are not valid or invalid in any ordinary legal sense. In this regard, the materials of legislative history and the language of an enacted statute are fundamentally different.”, R. Summers, Interpreting statutes - should courts consider materials of legislative history?, in: Essays in legal theory,NewYork2000, p. 259. 10 “Courts in Britain and the United States [...] ought not to use materials of legislative history to interpret statutes.This [...] conflicts with important considerations of appropriate form and formal legitimacy”, Summers p. 281.
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