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Maria Mousmouti

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Maria Mousmouti

Lawmaking is a challenging exercise: prospective in nature, highly controversial and only partly rational. Its main challenge is having to anticipate that legislative solutions have the capacity to work. In this context, effectiveness, as the capacity of legislation to do the work it is intended to do, provides a concrete decision making criterion for the choices involved in lawmaking. Effectiveness can play this role because (contrary to efficacy and efficiency that look at other functions of legislation) it reflects the ‘mechanics’ of the legislative text and depicts its capacity to function as a system. Its content reflects the systemic coherence and alignment between four fundamental elements of legislation: objectives, content, context and results. From this perspective effective legislation is the result of complex mechanics in the conceptualisation, design and drafting of the law and cannot materialise unless it is a clear concern in the early phases of lawmaking.

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Maria Mousmouti

Objectives are a mystifying concept in lawmaking. Their importance is obvious, yet they are notoriously ambiguous and volatile in formulation, function, expression and location. What kind of objectives can legislation pursue? How are these expressed? Where are they to be found? And how is purpose distinct from the reasons justifying legislation? These are a few of the dilemmas that lawmakers must address in order to formulate objectives that meaningfully communicate the purpose of the Act, assist interpretation and implementation and ‘bridge’ the gap between policy and law. From the perspective of effective lawmaking, purpose is an operative part of the law and needs to be clear, objectively identifiable, traceable, and sets a meaningful benchmark for what a law aims to achieve.

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Maria Mousmouti

Every law comes with a ‘formula’ that determines how objectives and expected results will be achieved. Designing the content of the law is the ‘heart’ of lawmaking: lawmakers confer rights or establish obligations, make decisions on enforcement and implementation procedures and mechanisms, decide how to incentivise compliance, and communicate the messages of the law. How can they anticipate what is most likely to work best? Legislative design is key to effective lawmaking: it allows sufficient space to compose the broader picture, sketch the overall logic of the law and identify the appropriate mechanics before going into minuscule detail. Effective content requires a clear legislative strategy, mechanics informed by evidence and experience, active anticipation of compliance, enforcement and implementation, clear messages and openness to experimentation.

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Maria Mousmouti

The context of legislation is the ‘external’ environment within which legislation will operate. This entails a myriad of obvious or hidden interactions with other legislative texts. Context determines how legislation will integrate the legal system and how it will interact with it. Lawmakers have a number of choices on how to structure legislative messages: as a unique message included in a single Act, as several messages diffused in the legal system, as a fragmented message broken down into smaller portions or as patchwork of messages. Each choice has a distinct impact on the accessibility of the message, its potential to coexist harmoniously with the other elements of the legal system and its potential to produce traceable and measurable results. Effective lawmaking requires conscious choices on the superstructure of legislative texts and in particular on the accessibility and coherence of legislative messages.

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Maria Mousmouti

Results are real life outcomes of legislation. Legislation is a ‘blind shot’ if there is no knowledge on how it operates in real life. Yet what kind of results does legislation produce? How can these be anticipated and measured? When, how and by whom? And what does the lawmaker need to do? Effective lawmaking requires clearly defined results and where possible measurable targets, a smart mix of monitoring, review and evaluation clauses integrated in legislation, conscious learning from the results of previous monitoring and evaluation, and a validation of the knowledge to be gained by judicial work.

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Maria Mousmouti

The effort to rationalise lawmaking came with a set of tools including Impact Assessment, Consultation, Simplification, Codification. Each of these tools contributes something different to the decision making process leading to the adoption of policies and legislation: Impact Assessment provides a structured thinking process for evidence-based decision making; consultation provides a framework for information collection and participation; simplification removes compliance barriers and codification improves coherence and consistency in the statute book. How useful is this toolkit to actual lawmaking? Taking a closer look at Impact Assessment and consultations, which are the main tools used in proactive decision making, it becomes evident that they lack the detail and focus on the specific questions that lawmakers have to address. Both tools contribute to efficacy and efficiency while effectiveness appears to be a secondary concern. However, when decision making has made a clear selection of option, this is when effectiveness becomes important. The ‘effectiveness test’ a conceptual exercise that adds effectiveness lenses can contribute to lawmaking by looking at the elements of effective legislation and their interactions.

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Maria Mousmouti

Legislative failure is a popular topic, yet one often addressed in a shallow way. Failure raises difficult questions: What counts as legislative failure? How can it be objectively recognised and explained? By whom? When? And what comes after? Ultimately, is it a lawmaking or a political issue? Understanding failure, as the flipside of effectiveness, is the only way to understand pathologies in legislation, correct and prevent them. Failure in legislative design, in drafting or in implementation puts in motion corrective mechanisms like amendments, simplification, improvements in accessibility or broader law reform. But is this enough to prevent future failure? Effective lawmaking goes beyond short term responses to require an open and proactive approach that acknowledges, diagnoses and analyses failure and integrates it in lawmaking through scepticism and reflective practice.

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Maria Mousmouti

So how can effectiveness help lawmakers in their complex tasks? Effectiveness adds a purposive dimension to legislative decision making: it does not tell lawmakers what to do or how to do it but adds a layer of pragmatism and offers a concrete decision making criterion. In this way, it encourages a closer connection between legislation and reality and makes the lawmaking process ‘bottom up’, ‘grounded’ and more open to evidence and knowledge. Lawmakers on the other hand, using effectiveness in decision making, are prompted to be ‘reflective’ rather than rely on intuition or just ‘muddle through’ and engage in active thinking, being aware of the heuristics and cognitive biases that are unique to their trade. Effective law requires lawmakers who are good designers, skilled mechanics but also active learners and thinkers.

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Maria Mousmouti

What is effective legislation? Is it a matter of intuition, luck or the result of evidence based law making? Can it be consciously ‘engineered’? This book advances the novel idea that legislative effectiveness is the result of complex ‘mechanics’ in the conceptualisation, design and drafting of four elements inherent in every law: purpose, content, context and results. It concludes that effectiveness can be achieved with conceptual and methodological insights that guide the specific choices of lawmakers when designing and drafting legislation.