Myth of Efficacy
Forces opposing scientific analysis of proposed legislation sometimes
embrace in its stead a popular view about law, which is really just a
widespread misconception, the myth of efficacy. Law is assumed to be the
universal solution for social ills, reflected in the common response to a
perceived problem: “There ought to be a law about it”. The psychology of this
response is a simple reflex from hope to achievement and from intention to
effect.
This attitude, based on the “widespread belief that legislation invariably solves
the social problem to which it is directed,”
513
creates a general reluctance to make
a
thorough investigation of the likely effect or impact of a law before it is passed.
So much is this the case that this naive belief in legal efficacy may well be one
of “the greatest obstacles to the acceptance of legislative impact analysis as an
integral part of legal policy-making”.
514
Decisions Down the Line
There are some decisions taken down the line once a statute has been enacted
that add significant uncertainty as to any prediction of how the statute will
operate. Two obvious examples concern amendment and administration. First,
the statute may be amended. When a statute is enacted, the text of the statute
is fixed for the time being. However, it is possible that after it has been enacted
the statute will be amended. It is virtually impossible for the legislators who
originally enacted
the statute to predict the time and content of later
amendments, let alone the effects that they will cause. Second, many statutes
have to be administered by the government and there is considerable scope for
choice as to how this is done. Later governments will decide the extent of
resources they will commit to administration and where and how those
resources are committed. Again it is virtually impossible for the original
legislators to predict or control how a statute will be administered.
Data Gathering
Without evidence, policy makers must fall back on intuition, ideology, or
conventional wisdom — or, at best, theory alone. And many policy decisions
have indeed been made in those ways. But the resulting policies can go
seriously astray, given the complexities and interdependencies in our society
and economy, and the unpredictability of people’s reactions to change.
515
Social research such as legislative impact analysis depends on data. Several
types of bodies gather data -
governments (most noticeably in a census),
private industry and researchers in institutions such as universities. Obviously,
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513
Beerworth (1980) p 67
514
Beerworth 1980) p 67
515
Banks (2009) p 6
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