Legislative Policy and Effectiveness: A (Small) Contribution from Legal Theory

Abstract

The purpose of this paper is to use legal theory to clarify the nature and the components of effectiveness in legislation, in particular when it comes to choosing legislative policy, ie the legislative model used to tackle a certain issue via legislation. Part II is devoted to revealing the true meaning of the idea of effectiveness, ie as a functional link helping legislative drafters to move among three elements (ideals, situation, results) rather than as an absolute value that drafters should pursue in their work. Part III continues by investigating the problems that such confusion has produced within legislative discourse and practice, in particular by focusing upon two types of effectiveness as external and internal to the legislative process. Finally, Part IV proposes how this idea of effectiveness as a functional element of legislative work (and the consequent distinction between an external and an internal version) can (and should) affect the work of legislative drafters. This idea becomes particularly relevant in relation to the optimal location of the non-legal experts in the legislative process as a means of increasing the effectiveness of legislative policy.

The mechanics of effective legislation

“…Second, it is 'neutral' and 'empty' in terms of substantive content (it does not tell us what to do) but highlights the 'link' between ideals, situation and results. 66 Third, it is systemic to the extent that it reflects the mechanics of legislation and its capacity to function as a 'system'. Fourth, it is element inherent in every law and defined to an extent (but not exclusively) by the substantive choices made by the lawmakers.…”