battledores.
474
Behavioural sciences do not offer a single universal explanation for why
humans behave as they do. Consequently, there is no ready body of learning
which will give society comprehensive and accurate predictions about the
effect of proposed laws. However, to rectify this as much as can be, there has
been specific
research to determine the factors affecting how successful laws
can be in achieving their stated aims. Research in this area is sometimes called
legislative impact analysis. In current terminology it encompasses
evidence
based policy making. Several eminent jurists have engaged in or promoted it
vigorously. An early and famous scholar in this area was Jeremy Bentham
(1748-1832).
475
Other prominent figures include Ernst Freund (1864-1932),
476
Roscoe Pound (1870-1964),
477
who was an early and major figure in
sociological jurisprudence, and Adam Podgórecki (1925-1998).
478
However, despite major efforts by these and other jurists, there is still not a
comprehensive science of law making. As a result, when using our models
there is often a degree of assumption or even just speculation, rather than
proof that a proposed law Statute X will cause Effect X. It is for this reason,
as we discuss later, that rational law making has to take this uncertainty into
account.
479
Nature
Legislative impact analysis is the science of legislation.
480
It is a specific form
of social engineering or socio-technics. To some extent the need for legislative
impact analysis has been institutionalised by the use of parliamentary
committees and special inquiries to examine proposed legislation, or a problem
that might require a legislative remedy. It has also been institutionalised in some
jurisdictions by establishment of a permanent body to examine and propose
___________________
474
This was Florence Nightingale’s admonition to the English Parliament.
475
Bentham (1967)
476
Freund (1965)
477
Pound (1942)
478
Podgórecki (1972), Podgórecki (1974)
479
Chapter 15 Cause: Responding to Uncertainty. Attempts to formulate
proposals for procedures and methods for examining the effects of legislation are
made by Mader (2001) and Shcaffer (2001).
480
On legislative
impact analysis see, for example, Bentham (1967), Pound
(1942), Easterbrook ((1983), Freund (1965), Podgórecki (1972), Podgórecki (1974)
Robertson (1973); Lempert (1966); Dror (1971), Ziegler (1988), Summers (71),
Summers (74), Summers and Howard (1986), Sunstein (1990), Stone (1961),
O’Malley (1980), Passmore (1981), Parker (1993), Tomasic (1985), Tomasic (1980A),
Tomasic (1980B), Stone (1970), Skolnich (1968), Ryan (1995), Robertson and
Treitelbaum (1973), Rose (1959), Ross and Blumenthal (1975), Rubaon (1989).
 |
 |
 |