Abstract
The enlightened ideal of legislation was always to apply reason to the production of laws. Advances in social sciences can help us develop better laws. In order to achieve this goal it can be very useful to apply the techniques of public policy analysis to the legislative process, thus renewing the old ideal of the law as voluntas ratione animata. These instruments will not allow us to reach absolute rationality but are nevertheless necessary to achieve, at least, a bounded or limited rationality. A project of this type demands a legislative methodology based on problem solving that goes far beyond the mere technique of legal drafting. There is a whole series of tasks in the norm planning phase among which the following can be highlighted: the precise definition of the social problem to solve, the establishment of the objectives pursued by the norm, the analysis of the different solutions available to the legislator and their evaluation according to criteria not only of justice, but also of efficacy (compliance by the addressees), effectiveness (attainment of legislative objectives) and efficiency (cost-benefit analysis).
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Notes
- 1.
- 2.
In integrated societies, according to Lindblom (1959), radical changes are impossible or unlikely. Any extreme proposal is doomed to political irrelevance. This proximity of the options allows for a greater possibility of predicting the consequences as the options are compared with the current situation that is already known. The virtue, Lindblom says, of such a hypothetical division of labour is that every important interest or value has its guardian. And these guardians can protect the interests they care about by repairing the damage caused by other agents and better anticipating the damage before it occurs. Thus, he pointed out, even partisanship and narrow-mindedness, to use pejorative terms, can sometimes be positive for the decision-making process since they can ensure that what one agency forgets will be taken into account by another; each agency’s members specialise in a different point of view.
- 3.
Lindblom’s position can only be endorsed in the context of a highly integrated society, in which there is a broad social and political consensus that allows radical changes to be avoided and incremental changes to be advocated. And although this approach is certainly conservative, its insistence on the need to strengthen the “competition of ideas” would require important organisational changes in our systems so that as many ideas as possible can be expressed and contrasted, and hence can influence decision-making. It is necessary, he insists, to change the process of public policy-making so that the potential of democracy can be tested (Lindblom 1991, p. 157).
- 4.
Or, to borrow from Sunstein (1996), on could also speak of “incompletely theorized agreements”.
- 5.
For Seidman (1992) there are four distinct phases: definition, possible explanations, possible legislative solutions and finally implementation and monitoring of the proposed solutions.
- 6.
Brian W. Hogwood suggests this checklist: (a) who says there is a problem here?; (b) is it a real problem, is it manageable by the government?; (c) what probability of agreement exists around the problem?; (d) is it the right time to give a definition?; (e) who defines the problem?; do they have a particular interest?; (f) are there alternative perspectives?; (g) what is the appropriate degree of aggregation?; (h) has the causal structure of the problem been understood?; (i) can the implications of the problem be specified and quantified?; and (j) when and how does the definition need to be revised? See Hogwood and Gunn (1984).
- 7.
- 8.
Ascó and Vandellós are nuclear plants located in the Spanish province of Tarragona.
- 9.
See above the introduction to Chap. 3.
- 10.
It would also be necessary to distinguish between the consequences that are intended for reality and consequences that are intended to be produced on the legal system. See, in this regard, Twining and Miers (1991, p. 202).
- 11.
Hogwood and Gunn (1984, p. 159 ff) offer a checklist with the following questions: (a) Where are you?; (b) Where do you want to go?; (c) What is stopping you?; (d) What do you need other Departments to do?; (e) What do you have to do yourself?; (f) How should you manage multiple objectives?; (g) What do you consider a success?; (h) Should the objective be quantified?; (i) What conditions does success depend on?; and (j) What will you do if the objectives are not achieved?
- 12.
See further Chap. 14 in this volume.
- 13.
See e.g. Hogwood and Gunn (1984, p. 170 ff), discussing various tecniques to identify options.
- 14.
- 15.
In the list of criteria for improving the quality of government regulation approved by the OECD Council in 1995, it was recommended that, before adopting a norm or decision, the following questions should be answered: (1) Is the problem correctly defined?; (2) Is Government action justified?; (3) Is regulation the best form of Government action?; (4) Is there a legal basis for regulation?; (5) What is the appropriate level (or levels) of Government for this action?; (6) Do the benefits of regulation justify the costs?; (7) Is the distribution of effects across society transparent?; (8) Is the regulation clear, consistent, comprehensible and accesible to users?; (9) Have all interested parties had the opportunity to present their views? See the OECD Reference Checklist for Regulatory Decision-Making (Appendix to OECD 1995).
- 16.
See Australian Government (1992).
- 17.
The concern for the improvement of the planning of policy interventions is encouraging governments to set criteria that allow for a more precise clarification of the objectives pursued with the development of a norm, as well as the options available to the legislator. An example is the UK Government (2003), which in its Better Policy Making: A Guide to Regulatory Impact assessment advises norm drafters to consider, among other questions, the purpose and intended effect of the measure; the options available; the cost-benefit assessment; the equity and fairness of the measure, and its impact on small enterprises and on competition; enforcement issues and sanctions; consultations (within government and public consultation); and monitoring and review.
- 18.
It is not always clear, though: What happens when options involve discrimination on the basis of, for example, sex? Would the six-life option (prostate cancer) be correct instead of the five-life option (breast cancer)?
- 19.
- 20.
Evidently the norms that regulate security are increasingly becoming comercial weapons that are used between regional or national markets. In the face of the absence or the difficulties of risk assessments, states deliberately create security obligations that are not aimed so much at protecting health and sanitation of their nationals, but at establishing obstacles to comercial exchange.
- 21.
For an emphatic critic of the precautionary principle as it is, in his opinion, applied in the member states of the EU, see Sunstein (2005).
- 22.
- 23.
In Spain, a good example was the sanitary alert (25 April 2008) not to consume Ukranian sunflower oil—which caused an unwarranted social alarm.
- 24.
Sunstein (2004, p. 160) suggests a list of eight points: (1) agencies should not only identify the advantages and disadvantages of reducing risks, but also try, as far as possible, to quantify the relevant (non-monetary) effects; (2) the quantitative description should complement and not displace a qualitative description of the relevant effects; (3) to improve the overall assessment, agencies should try to convert non-monetary values (involving, for example, lives saved, improvements in health and aesthetic values) into dollar equivalents; (4) agencies entrusted with life and health assessment should be controlled by laws or decrees establishing minimum and maximum limits; (5) agencies should be allowed to make adjustments in their analysis based on the various qualitative factors; (6) agencies should be required to demonstrate that the benefits justify the costs. If they fail to do so, they should be asked to demonstrate that the action is nonetheless reasonable, on the basis of a publicly given explanation; (7) in ordinary circumstances, the appropriate response to any social fear that is not based on evidence and the wave effects associated with it, is education and appeasement of the social mood, rather than an increase in regulation; and (8) unless otherwise provided by law, a judicial review of risk regulation should require a general demonstration that the regulation has produced more benefit than harm, based on a reasonable assessment of benefits and costs.
- 25.
Cf. also The Analysis and Regulation of Safety Risk. A survey of the practices of National and Commonwealth regulatory Agencies (Australian Office of Regulation Review 1995).
- 26.
See the EC Commission’s Rapport du groupe d’experts independants pour la simplification legislative et administrative, COM (95) 288 final (21 June 1995). In this connection, see also the OECD’s (2010) report Improving the Governance of Risk.
- 27.
- 28.
Art. 88 of the Spanish Constitution states: “Government bills shall be passed by the Council of Ministers, which shall refer them to Congress, accompanied by a statement setting forth the necessary grounds and facts in order for them to reach a decision thereon”.
- 29.
This is not incompatible with the creation of a parliamentary office of legislative policy, even in both chambers (if a double control is desired), which analyses MPs’ legislative initiatives.
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Zapatero Gómez, V. (2019). The Design of Laws. In: The Art of Legislating. Legisprudence Library, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-030-23388-4_4
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