If good prediction must be preceded by proper inquiry into the problem that
the law is intended to fix and the means proposed to fix the problem,
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how
should this inquiry be made? Roscoe Pound (1870-1964) proposed a
“sociological study in preparation for legislation”.
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Before a law is
formulated and passed legislators should consider “the actual effects of legal
institutions and legal doctrines,” the “means of making legal rules effective”
(because “the life of the law is its enforcement”), and a “sociological legal
history which would consider what effects legal doctrine had in the past”.
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Use
Results of research into the function and impact of legislation can and should
be utilised in an obvious way. Before a legislature makes a law, or a court
interprets a law, it is important to predict, as scientifically as possible, what
effects the law or its interpretation will cause.
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Doing this enables legislatures
and courts to use law to bring about a desired effect. To say the obvious, a
law passed to remedy a problem should fix the problem.
Types
There are two fundamental or extreme types of legislative study or legislative
impact analysis. One can study legislation “out in the field” and look at the
actual operation of law. This has the advantage that any conclusion one can
draw bears directly on the subject under scrutiny, but carries the disadvantage
of uncertainty. Since conditions were not controlled, it is possible that other
factors apart from law caused the observed outcomes. Alternatively, one can
set
up an experiment involving controlled conditions. Controlled conditions
have the advantage of yielding more reliable and less contentious answers than
field studies, but suffer a problem because the result of the experiment may
not properly translate into wider context that pertains in the real world.
Obviously, these approaches represent the extremes. Between the extremes
one can have some mixture of the two approaches.
___________________
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Pound (1912) Podgóecki (1974) Law and Society. This is summarised in
Tomasic (1980A) at p 32.
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Pound (1912) pp 514-516
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Pound (1912) pp 514-516
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For proposals
to make legislative procedure more effective in this regard
and others see Muylle (2004). A specific proposal is to formally confer on the
second legislative chamber (the upper house) responsibility for careful
assessment of legislative impact. In the second chamber such consideration is
likely to be less partisan and more deliberate than in the political hurly burly of
the first chamber (lower house). On the possible roles of the second chamber see
Lord Hope of Craighead (2004).
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