Symbolic legislation receives a great deal of attention in political, academic and journalistic circles. We hear activists complaining that this or that law is “merely symbolic”, politicians accusing other politicians of promoting or defending legislation that is only symbolic, journalism on many occasions also refers to this phenomenon, and even Wikipedia in its English version dedicates an entry to it. The appeal to symbolic legislation is made for different purposes, but when speaking of “symbolic legislation” there is an air of family among all the proposed versions that, first, I will try to identify and secondly to translate into legal but understandable terms, to explain why in cases of eminently symbolic legislation there is a problem of legislative reasonableness.

The intuitions about symbolic legislation (the air of family that I mentioned earlier) allow us to connect this phenomenon with the idea of non-compliance with the norm or its lack of application and/or with the failure to achieve the objectives for which it was sanctioned. However, this legislation, in spite of not being complied with or not achieving its objectives, has a different effect, it has a symbolic or expressive value relevant to a group of society or to the whole of it.

A clarification seems to be necessary before proceeding further: to refer to symbolic laws is to refer to a matter of degree. Laws are hardly “symbolic” only or “non-symbolic”. This distinction is generally omitted and I understand that this does not contribute to the clarification of the phenomenon because all laws or norms have a symbolic dimension or effect -which will be more or less important depending on the case-. When the press, politicians or activists refer to symbolic laws and question their quality and transparency, they are referring to what I will call here primordial or eminently symbolic legislation, and this is the problematic legislation.

Proponents of legislative theory approaches usually share an instrumentalist view of law (although there are exceptions) in which law is conceived as a set of norms and rules that parliament sanctions to achieve specific public policy goals (see Van Klink, 2019: 173 and Xanthaki 2019). This, which is shared as a starting point, is important both to identify symbolic legislation and to point out what its shortcomings or difficulties are to be inserted into a scheme of legislative reasonableness.

We can now “translate” into legal-legislative terms the shared intuitions about eminently symbolic legislation: a) that a law is not complied with means that it is not effective, that is to say that, for various reasons, it fails to motivate people’s conduct to be complied with; b) that a law is not applied, also, according to legal theorists, would represent a problem in effectiveness (on a second side: if the law is not complied with but is applied, it somehow recovers that initial non-existent or low efficacy); c) that a law does not fulfill its objectives means, in legal terms, that it is not effective. If we think of the instrumentalist vision mentioned above, if laws are not complied with and are not applied, they will generally not achieve the public policy objective that the parliament sought with their sanction and will only have a “symbolic value”, which in the opinion of those of us who understand the law from this instrumentalist perspective is insufficient.

But… how is primarily symbolic legislation generated? Many authors connect eminently symbolic legislation with a deliberate activity of legislators who issue laws that will be applauded by the population or will generate a feeling that the problem is solved when in reality the mechanisms to reach that solution will not be present. This would be legislation pour la galerie or, as they say, “for the gallery”. It is true that sometimes we find this type of legislation as, for example, when penalties are increased for a certain crime that concerns the population, but nothing is changed with respect to the mechanisms for detection or prevention of these crimes or an underlying corruption problem that allows these crimes to be carried out with less risk of being detected or prosecuted is not solved. However, there is also another group of eminently symbolic legislation, which has not been deliberately created by legislators, but which, over time, has lost efficiency and effectiveness and its current value is only symbolic. For example, the law criminalizing the possession of drugs for personal consumption could have had in its origin, according to a majority interpretation at the time, a reason linked to “effectively contribute to the international fight against drugs,” which later, when the international enemy ceased to be drug trafficking, could have changed to “eradicate drug trafficking at the national level by preventing the last link in the chain,” and could have coexisted at all times with the reason of “promoting the health of people by preventing drug use. Today, most specialized studies come to the conclusion that none of these reasons has been realized with this rule and therefore, they find that this prohibition is not effective and this lack of effectiveness originates in the absence of efficacy. But, despite the evidence of this failure, very large groups still oppose the decriminalization of the possession of narcotics for personal consumption in many parts of the world.  What remains is primarily the symbolic value of these norms, the secondary meaning, which is in these cases more important than their primary value.

Something similar happens with the regulations that criminalize abortion (also inefficient and ineffective in the countries that maintain them, and not only because of the level of non-compliance with the prohibition but also because of the terrible health and mortality problems that are generated in mothers who undergo unsafe abortions). Worldwide statistics show this failure: in countries where abortion is widely permitted the abortion rate is 41% while in countries where abortion is completely prohibited (no exceptions of any kind are accepted) the abortion rate is 39% (Source Guttmacher Institute (2022) with information from Bearak J et al. (2020). As we can see, the abortion rate in countries where it is prohibited is very high, especially when compared to the rate of unwanted pregnancies, which is 79% in those countries. It is possible that the prohibition of abortion was originally conceived as a sincere legislative attempt to protect the life of the fetus (in addition to expressing a symbolic value that it may have had at the time) but not as a mere symbolic issue, today it seems that the only thing that remains in force is its symbolic value for a part of society.

In these cases of eminently symbolic supervening laws there is, however, at least ideally, an obligation of the legislator and/or political exponents to reform the legislation or repeal it: if one intends to legislate rationally, one should reform the legislation in pursuit of greater efficiency and effectiveness, or repeal it if its “reason” is currently understood unjustified (as in the case of recent legislative repeals of the prohibition of abortion in countries like Argentina, Uruguay and in 50 other countries in the last 25 years).

In the video below I explain all this and a few other things in more depth, I invite you to watch it!

Carolina Fernández Blanco