User:Kaihsu/DraftD5

Legislation and statutory interpretation.

Module D: Tests for quality of legislation.

Chapter 5: The functionality test: effectiveness.

Hierarchy of virtues in regulation and legislation
The hierarchy:
 * 1) efficacy (= quality of regulation)
 * 2) effectiveness (= quality of legislation)
 * 3) (cost) efficiency
 * 4) clarity, precision, unambiguity
 * 5) plain language
 * 6) gender-neutral language.

An example to distinguish the first three concepts: “[...] Drivers wear safety belts and they do so, partly at least, because a legal obligation exists (effectiveness). There is evidence, that wearing a safety belt contributes to the reduction of injuries (efficacy). The costs of this measure [...] are not disproportionate compared with the extent to which this measure contributes to the reduction of injuries (efficiency). Nevertheless, there seems to be some evidence that the measure also produces negative effects [...]”: Mader.

Efficacy
Efficacy is defined as the ability to produce a desired or intended result – the extent to which legislators achieve their goal (Mader). It is the highest virtue in the policy process, involving not only drafters, but also policy makers, interpreters, applicators and enforcers of legislation.

Effectiveness
Effectiveness is the extent to which the observable attitudes and behaviours of the target population correspond to the attitudes and behaviours prescribed by the legislator: Mader. It is the drafter’s contribution to the efficacy of the drafted legislation.

(Cost) efficiency
This maximizes the benefit while minimizing cost. Ideally it should take into account more than the financial, but is impossible to have the complete information. Efficiency that does not serve effectiveness is false economy.

Clarity, precision, unambiguity
These three virtues are of equal level in the hierarchy and the choice of dominance should serve effectiveness. Clarity is being clear – easily perceived or understood. Ambiguity is uncertain or inexact meaning.

Legislatures sometimes choose to be vague but rarely choose to be ambiguous. Vagueness is simply a tool for clarity and precision, provided that it is used consciously and as a legal rather than a political tool.

Plain language and gender-neutral language
These are tools serving the higher virtues of clarity, precision, unambiguity. A plain language text is a passage that the intended audience can read, understand and act upon.