Lakiuudistusten tavoitteet ja niiden toteutuminen lainsäädäntöteoreettisessa tarkastelussa
The principal objective of the study has been to put forward a useful approach capable of providing for an overall picture of the basic factors underpinning the creation and shaping of the effects of a law reform. The purpose for defining such an approach has been twofold: first, to enhance research interests by describing the basic mechanisms and factors for the creation and shaping of the effects of a law reform and, secondly, to benefit law drafting by pointing out what needs to be considered when law reforms are prepared, different types of legal instruments contemplated, their effects predicted and the effects of a law monitored and assessed.
The above objective relies on the idea that conceptual and intellectual tools are required for the assessment of the effects of a law reform. The effects of a law cannot be assessed and discussed successfully without such tools.
In general, the significance of the information of the effects of a law reform may be explained as follows:
1. The "rationality" explanation: since law reforms are as a rule used to pursue certain objectives, it is also important to know whether a given piece of regulation has had the envisaged (or some other) effects;
2. The "accountability" explanation: information on the effects of a law reform makes it possible to hold especially the decision-makers and other law drafters responsible for the consequences of their decisions;
3. The "non-transparency" explanation: in modern, complex and differentiated societies the effects of laws do not appear as clear-cut or simple. They often take place not only in the field envisaged but also in many other sub-sectors of society and legal regulation. Therefore, their tracing and discovery requires particular attention;
4. The explanation of "legislative correction": gathering information on the lacking or distorted effects of a reform enables the legislator to redress them promptly;
5. The explanation of improving law drafting: increased information on the effects of a law reform and the controlling factors behind them help to increase the quality of law drafting. Information on the effects of laws and the mechanisms of their coming into existence offer a learning experience not only to law drafters but also to others;
6. The often rather critical picture of the implementation of law reforms and of the problems concerning their results provided by research has for its part led to a greater emphasis on the significance of effects of a reform and increased the prospects for them being taken into account. On the other hand, the current level of information on the effects of laws may be described as follows: if only we knew what the effects of laws are!
The approach adopted for the present study is based upon four factors in relation to which the effects of a law reform have been examined: 1) the objectives of a law reform; 2) the substance of a law reform (which have mainly been regarded as a means of achieving the objectives); 3) the implementation of a law reform; 4) the reaction of the objects of a law reform, in particular, their compliance or non-compliance with the regulation introduced.
The approach is based on the preliminary conception that the above four factors in particular shape the effects of a law reform. Moreover, the inclusion of the factors concerned may be justified by the fact that the legislator has the possibility of influencing them by his decisions. They are, it has been argued, at least partly within the sphere of influence and control of the legislator. To a considerable extent, the effects of a law depend on how the legislator uses the margin of discretion available to him.
The approach adopted for the study has been carried out as follows:
1. Conceptual tools by means of which each of the four factors and the relationship between them may be analysed have been developed;
2. Each of the four factors have also been divided into sub-factors by means of which one may discover and describe in sufficiently concrete terms the relationship between each of the sub-factors and the effects of a law reform;
3. In relation to each of the four factors, information based on both research and experience as well as theoretical models have been put forward of how each of the factors relate to the effects of a law reform;
4 Finally, the aim has been to locate the grey areas or limitations in the current knowledge of the relationship between the four factors and the effects of a law reform.
The material for the research consists of own experience from law drafting, material deriving from assessment of legislative projects and research on legislative procedure and both domestic and foreign literature on law drafting. In addition to legal scholarship, use has been made of theoretical and empirical knowledge in the fields of politics, implementation and evaluation studies as well as legal sociology.
The purpose of the study has not been to put forward either a single theory or a set of general conclusions on the effects of laws. Instead, the aim has been to make, at a level of generality transcending one individual case, observations on the mechanisms of creation of the effects of a law reform and the factors underpinning them. Hence, the study may be regarded as falling within the theory on legislation.
It emerges from the study that each of the four factors behind the approach adopted has, in a number of ways, relevance to the effects of a law reform and their creation. The second principal conclusion is that analysis of each of the four factors has brought to light aspects, mechanisms and elements related to the effects of a law reform, which are different from one another. By each of the factors it has, in other words, been possible to contribute to the knowledge of the factors underpinning the effects of a law reform.
On this basis, it is possible to argue that the approach has passed the test of its own usefulness. This would have not been the case had one or more of the four factors proven irrelevant to the effects of a law reform or not contributed to the set of conceptual tools or the information on the effects of a law reform.
When use has been made of the approach adopted for the present study, one has often been left with the fact that the above four factors stand in connection with each other in several respects. They are neither separate nor independent, as one would wish in accordance with the classical method of explanation. In respect of analytical assessment of the effects of law, this may, to certain degree, be regarded as a disadvantage.
The use of the above four factors in the analysis of the effects of a law reform has shown that, taken together, they may provide for a fairly broad overall picture of those general elements which relate to a number of law reforms and to the effects of laws. It is clear that had the factors underpinning the effects of a law reform only been examined in respect of one or a few of the factors, the picture would have been more narrow than as a result of the approach adopted for the present study. This does not mean, however, that the effects of a law reform could not – depending on the instant case and the research interests involved – be examined on the basis of only one or some of the four factors used in this study (by focusing, for example, on the relationship between the substance and the effects of a law reform or between its implementation and effects).
The overall picture of the effects of a law reform as well as their underpinnings, based on the above four factors, makes it possible to identify typical ways of explaining why a particular law reform does not achieve the desired objectives. The conceivable failure of a law reform may be explained with the approach used in the present study as follows, for example:
1. The objectives are vague, contradictory, unclear or unrealistic in the light of the substance of the law reform;
2. A strategy of regulation has been adopted or means of regulation used which are not likely to lead to the result envisaged or which have many side effects;
3. The implementation of the law reform fails as a result of, for example, a lack of expertise or other resources, too rigorous or too soft course of action or external actors using the procedure excessively to promote their own self-interest;
4. The objects of the regulation take an indifferent or negative stance towards the law reform.
As is true with research in general, with analysis of the effects of a law reform one has to ask from whose perspective the effects of laws are examined. In the present study, the perspectives of the decision-makers, on the one hand, and of the objects of the regulation, on the other, have been put forward as the principal options – options which, it is believed, should be used together.
Analysis of the objectives and substance of a law reform emphasises the perspective of the decision-maker and the law drafter when laws are used in an instrumental fashion as a tool of the public authorities. This perspective is central to analysis of the effects of laws, irrespective of the fact that different actors, including the potential objects of the regulation, seek and often manage to influence law drafting.
The strength of the approach adopted for this study, on the other hand, lies in the fact that it includes the implementation and the reaction of the objects of a law reform as distinct elements requiring specific assessment and attention. This is bound to eliminate the one-sided conception of legal regulation simply as a means of steering or control by those in power.
Analysis of the implementation and of the reaction of the objects of regulation brings into the research on the effects of laws the following elements in particular:
1. In important respects, the objective and substance of legal regulation only become more specific at the time when a given act of law is applied in practice and a body of judicial or institutional practice created;
2. Legal rules are applied and used by a number of actors who often act in a variety of different ways without there necessarily having to exist a breach of the law;
3. Regulation applies to activities and phenomena which are not stable but, for a number of reasons, subject to constant change;
4. Legal regulation is not just hierarchical, top-down commanding by those in power, although this is an essential feature of the nature of the law (through coercion, compulsion and sanctions);
5. The operation of legal regulation as well as the functioning of a legal order depend to a great deal on how citizens and other subjects of law comply with the requirements set thereby, show willingness to co-operate, create long term co-operative relationships with the authorities and obey the rules at their own initiative;
6. As regards legal regulation and its effects, there is always the veritable prospect that subjects of law put up resistance, deliberately disobey the law or deny any legitimacy from the rules or the authorities applying them;
7. Legal rules often give rise to effects other than those envisaged, perhaps far away from their proper target sector.
Upon analysis of the link between the four factors and the effects of a law reform, it has widely been shown that there is scarcely any theoretical or empirical knowledge capable of establishing or verifying clear-cut causal links between any of the four factors and the effects of a law. Neither is there any set of firm, widely applicable general propositions on the links between the factors concerned and the effects of laws. This deficiency is not limited to research on the effects only. It applies widely to research on human behaviour and other phenomena in the society.
Therefore, the tracing of a visible link between, on the one hand, the objectives, the substance, the implementation of a law reform as well as the reaction of its objects and, on the other hand, the effects of the reform may be regarded as a principal contribution of the study. In many cases, the link remains general in nature, a mechanism affected by a number of different factors. Hence, grasping and making the mechanism more concrete is often a useful result from the point of view of examining the effects of a law. Understanding the mechanism adds to the information on the effects of laws and makes it possible to improve the working methods of law drafting on the basis of this information.
Traditionally, one of the difficulties with research on the effects of laws has been to isolate precisely the effects of a law reform from all other, often diverse and contradictory, factors influencing human behaviour. Every individual has many different motives and interests that may point to opposite directions and vary according to time and place. When analysis is extended to a number of individuals or groups, the picture gets even more diverse and problematic. Furthermore, the behaviour of individuals or groups has to be examined in the light of the "external" conditions or structures that exist in a given society. If one then poses the question how exactly a particular law reform affects the behaviour of different subjects of law, one is faced with the difficulty of isolating the effects of the law reform concerned from other conceivable factors influencing human behaviour.
It appears to be widely accepted, on the one hand, that information on the effects of laws is necessary and, on the other, that the present level of information is insufficient. How could one then secure sufficient information on the effects of a law reform that has taken place? In the operation of public bodies in general, and in law drafting in particular, there is no such mechanism of feedback as in the market where the price of a product is supposed to give different actors the necessary amount of information. Neither does the mechanism of elections underpinning politics seem to offer sufficient amount of information on individual law reforms.
The extensive need for information on the effects of laws as well as the preliminary survey of the feedback mechanisms justify the conclusion that the legislative procedure appears to lack a comprehensive and systematic mechanism providing feedback information on the effects of laws. No single arrangement or solution is hardly capable of supplying the desired feedback information. Here, different research orientations, evaluation activities, follow-up projects, the usual means of gathering information by the administration, statistics and discussion by the public as well as experts will all have to play their part. This does not mean, however, that either the present situation or the functioning of feedback mechanisms were satisfactory. In the light of analysis it seems necessary – bearing in mind, in particular, the large number of law reforms as well as their diversity – to stress the need for strengthening the theoretical and empirical basis for understanding the question. Without such theoretical and empirical knowledge, grasping the effects of a number of individual law reforms threatens to become an insurmountable task.
In the recent years, the definition of the effects of a law reform has come to be regarded, to a much greater degree than in the past, as a part of good law drafting. The most obvious sign of this may be found in the fact that in different countries or international organisations calls have been made for more reasoned use of legal regulation, together with proposals for improving the procedure as well as the quality of law drafting. In the 1990s the calls for the assessment of the effects of law reforms have reinforced. It has become an established feature of guidelines and programs aimed at improving law drafting and the quality of laws. In Finland it has been the single most heavily emphasised proposal in the process of improving law drafting within the Government. Behind these observations there appears to be a common understanding that information of the effects of a law reform has all too little significance in the system of law drafting.
It is worth considering what the above demands on more accurate prediction of the effects of laws actually are based on and why is that they are made so forcefully today? Have we discovered something new and significant that was not known before?
It is difficult to point out any one single factor, which would explain the greater emphasis on the effects of laws. The findings of implementation and other studies, for example, on the problems of implementing law reforms and on incomplete results thereof have been known for a long time. Over the years, a number of arguments have been advanced on the declining quality of laws, but there no is clear evidence to suggest that the prediction of the effects of a law reforms is poorer now than it was before. However, in Finland, for instance, little research has been made on the topic so far. The economic analysis of the effects of laws also stems from earlier times, although its volume has increased in different areas of law and research in the last two decades. There is, however, nothing theoretically or methodologically revolutionary the economic analysis of law would have brought with it. The extensive use of legal regulation as a means of public policy as well as the instrumental approach towards legal regulation is also bound to emphasise the results of reforms. As, however, the above features may be associated with the legal development for almost the whole of the 20th century, there appears to emerge nothing significant from this direction either which would explain the emphasis given to the effects of laws in the last decades.
One explanation might be that recourse to legal regulation in more and more specific and rapidly changing sectors of society easily leads to various adverse side effects in other areas. Different sectors stand in close interaction with each other. Complex legal regulation makes up a whole so that a change in one place is likely to lead to unpredictable effects elsewhere. Only the government, as the instance responsible for legal regulation, is, in the final analysis, capable of reconciling the respective branches of law and preventing such side effects from taking place. There is a broad consensus on the special position of government as a kind of director or co-ordinator of legal regulation.
What if the emphasis placed on the effects of laws in law drafting or otherwise simply amounts to high-minded words rather than a serious attempt to change something? If the effects had such an important effect upon the drafting and implementation of laws as a number of commentators have recently let us understand, would the bread and butter work of law drafting not also look somewhat different? Would use not have been made thereby of the analysis of and the interest in the effects of laws, in other words, should the latter not have more influence upon the everyday work of those involved in law drafting?
In many European countries where the definition and consideration of the effects of laws has been regarded as an essential part of the improvement of law drafting, there is still only preliminary and short-term experience (e.g., The Netherlands, the United Kingdom, Germany and Finland). It is, therefore, not possible to draw any firm conclusions on whether, and if so how, the taking into account of the effects of a law reform has improved and what the process of law drafting, the decision-making and the public debate on law reforms will be like in future.
In any case, the use of the information on the effects of laws is affected and limited by factors existing independently of how much emphasis is given to the need for and the use of information of this kind in law drafting. Information on the effects of laws is limited in scope and involves a number of problems. The modesty of the results, theories and general propositions offered by research is made all the more apparent by the sheer volume of legal regulation in particular. It should be observed that, for reasons of time and other resources, research on the effects of laws to support law drafting may only be conducted selectively. From this it follows that in any case legislative projects will often have to rely on information other than research data serving specifically the reform concerned. This inevitably modest room left to research is complemented by the observation that a law reform does not involve any mechanism of a general scope which automatically supplied feed back information on how the reform works and what kind of effects it has. In the absence of such a mechanism, it might even be argued that the breaking of the information on the effects of a law reform into a number of tiny, often untraceable fragments has made it possible for the present way of exercising the legislative power to go on, without there being any possibility for systematic analysis and information to acquire a significant role in law drafting.
One explanation for the limited significance of information on the effects of laws may also be that law drafters have not so far genuinely realised the benefits of such information to law drafting. Those who criticise law drafting for by-passing the effects of laws have apparently not been able to show in concrete and indisputable enough a manner what qualitative and other benefits would accrue to law drafting from more information on and greater attention to questions concerning the effects.
From the perspective of a law drafter and his margin of discretion, the emphasis on information on the effects of a law reform may be regarded as an attempt to bring a specific way of reasoning as well as a body of information shaped in a specific way to direct law drafting. To put it another way, the purpose of the information is not only to direct but also to limit, in a specific way, the margin of discretion and choice of the law drafter. As a minimum, to opt for a particular alternative of regulation will require more work and greater care.
Since attempts to direct law drafters and to limit their discretion are rarely completely neutral, they would have to be closely monitored. When attention is paid to the effects of a law reform, this will be noticed in particular when stress is unfairly laid on the significance of effects of a particular kind – for example, costs accruing to businesses in connection with regulation aimed at enhancing the interest in health or safety – or when a particular method of analysis of the effects is considered to be the only possible. On the other side, information on the effects of a law reform may also broaden the margin of discretion of a law drafter, if he can, as a result of a higher degree of knowledge, prepare and use a more elaborate and appropriate set of regulatory strategies or means.