Responses to the Study Guide Questions for

Session A-4, Slides #15-16

Question 1

What arguments would you give for or against enacting a rule (a Cabinet regulation or law) in your country to require ministries to accompany their proposed bills with a research report strucutred according to the problem-solving methodology?

Rob: Requiring ministries to accompany a proposed bill with a research report structured by the four-step, problem-solving methodology will result in a legislative solution based on “reason informed by experience”.  Only if there has been methodical consideration of the social problem in reference to available evidence is the proposed solution likely to be effective.

The research report provides justification for the bill. By informing cabinet ministers and legislators of the facts and logic on which the bill is grounded parliamentarians will have a sound basis for making a reasoned assessment of the bill including whether or not to enact the bill.

Mavis: I agree that ministries should submit proposed bills with a research report structured by how they think the bill will solve a particular problem. However, of course such a requirement has to be tempered by practical considerations such as the limited human, time and other resources which developing countries frequently face.

Christopher: Legislators are called upon to vote for or against legislation encompassing an unlimited array of  issues.  It is impossible for each senator or representative to have in-depth expertise in such diverse fields as defense, economics, foreign policy, health care, engineering, constitutional law, farming, the environment, nuclear safety, or criminology.  Yet, the job requires that decisions be made on highly complex matters encompassing these and other specialized fields. The impact of these decisions is huge.

A research report accompanying each bill should be required.  Such a report could go a long way toward informing legislators concerning the problems, issues, and potential solutions surrounding the proposed legislation. However, a serious potential problem is bias.  The report could easily cross the line from informative to persuasive, without affording the opposition an opportunity to be heard.  This might pose a formidable challenge in the drafting of a research report.  The basic issue is whether the report should be merely informative, taking a neutral position, or be persuasive.

This goes to the question, “Who is the client?”  If the client is the legislator introducing and promoting the bill, the research report would properly be persusasive.  If the client is the legislative body itself, the report should be merely expository.

Marlyn: Arguments for enacting a rule to require Ministries to accompany their proposed bills by a research report structured by the problem-solving methodology.

The research report will  provide Cabinet members and legislators with:

The information provided will facilitate Cabinet and legislators to have an informed basis to undertake a reasoned assessment of the bill in order to decide whether or not to enact same.  The research report therefore justifies the substance of the bill.

Question 2

Do you think that structuring a research report around legislative theory's problem-solving steps will help to make it more likely that a proposed law will help to solve the social problem it purports to address?

Rob:The four problem-solving steps provide a framework to consider the causes of the problematic behaviors, a way to address those behaviors, and a plan to monitor the law’s effectiveness. This comprehensive approach helps ensure the best legislative solution on the basis of available information. The methodology requires the drafter to propose and consider alternate explanations for the behaviors. This helps ensure that all possible causes for the problematic behaviors are considered for a legislative solution.

Mavis: I agree that such a move may make it more likely that the bill will solve that which it set out to solve. However, again there is always a need for tempering such statements and in this case, there are other factors which decide whether or not a law is ultimately successful. These include the political will of the country’s politicians to ensure that the law is implemented. In Guyana for example where I previously worked, I noticed that the country would enact laws which although on the face of it are developmental, the impetus would be coming from donor countries. Thus laws such as anti-money laundering legislation, anti human trafficking etc are drafted and passed but never implemented or only a half hearted attempt made at implementation because the motivation was never there in the first place.

Christopher: Yes.  The research report should follow a standardized structure.  Specific problem-solving steps would be a logical structure to follow.  Such a structure would focus on the social problem, specific behaviors comprising the problem, their causes, suggested means of modifying the problematic behavior, the pros and cons of these approaches, and how the proposed bill would work to modify the undesired behavior.

Marilyn: I think that structuring a research report around legislative theory’s problem solving steps will make it more likely that the proposed law will help to solve the problem it seeks to address.  This will be so since the research will yield whose behaviour and the causes of the behaviour to be changed; it will identify the difficulty, provides explanation and identifies solutions that will be specific to the social problem being addressed.  It will provide the focus necessary for designing the required law.

Question 3

What factors should drafters consider in deciding the scope of their bills?

Rob: The factors that a drafter should consider in determining the scope of a bill are:

 2. Whether a bill with a broad scope can convey all prescriptions clearly and accessibly.

 3.  Whether a bill will require more than one implementing agency.

 4.  Whether a bill with a broad scope is likely to win consensus so that it passes into law.

Mavis: I find that in practice, the scope of a Bill is influenced by the instructions received by the instructing ministry as well as the existence of other laws on the same subject matter. Sometimes as you draft a Bill, it may become unwieldy which is a sign that you need to limit it or you may see the need to expand its scope as the issues become clearer.

Christopher: A simple answer is that the scope of the bill should be tailored to the scope and extent of the social problem the bill seeks to address.  There are, however, pragmatic considerations.  The scope of a proposed bill should not be so great that it cannot effectively address the range of specific behaviors which comprise the social problem.  Another potential problem is that if the scope of a bill seeks to result in a radical change, it may be difficult to sell to the legislators, and their constituents. 

In general, a focused bill addressing a specific problem is preferred.

Here in the US, it is common for bills to be vast in scope, and intransitive in nature, endowing an administrative agency with broad discretion in implementation.  This often leads to bloated administrative agencies, and regulations that may be at variance with the vision of the legislators who enacted the law. Indeed, my bill seeks to correct a social problem caused by the discretionary actions of the administrating agency. 

Marilyn: The determination of the scope of a bill is strategic choice by the drafter. In deciding the scope of the Bill, the drafter must consider these factors:

The extent of the social problem – The drafter must be aware that a particular social problem may comprise many inter-related issues and since the drafter cannot deal adequately with all in a particular bill, he has to be economical and decide what aspect of the social problem(s) the bill will cover.  Where the bill’s scope is too broad, it gives rise to other unmanageable issues of its provisions in its attempt to be all-inclusive and subsequently to implementation and enforcement issues later.

Long delays and discussions and a lack of consensus are manifestation of a bill with too wide a scope.  The drafter must therefore avoid stuffing his bill by being aware of the extent of the social problem and limits his bill to manageable portion by drafting a bill to address specific aspects of the manifested social problem.

A better approach in such a context would be to design a legelasative-drafting programme around a particular social problem that is manifested by varying interrelated issues.  This would ultimately lead to a series  of legislations aimed at varying aspects of a major social problem.

The drafter must therefore identify the various aspects of the larger social problem and then isolate and deal with the more narrower differently to be addressed by the bill. 

Question 4

What factors should a drafter take into account in deciding where in her research report she will put the history of the problem her bill aims to help resolve?

Rob: The history of the problem should be included where the drafter thinks it will be most helpful to the reader. If the history of the problem provides general background information it will be included in the introductory section. It will be included in the “difficulty” section if it illuminates the difficulty by showing how, through time, people perceived the difficulty differently. If the history of the problem helps explain the causes of the problematic behavior it would be logical to include it under “explanations”. If the history is comprised of different solutions attempted by government, it should be included in the “solutions” section. If the history impacts on more than one section covered by the research report, references to relevant aspects of history could be made in more than one section.

Mavis: I think that the primary consideration should be to put the history of the problem were it will best help the reader to put the problem into context and to understand the logic behind the law.

Christopher: Of immediate interest to legislators is the present effect of the behavior causing the social problem, and how the bill will address this behavior.  Placement of the history will be dependent upon to the relevance of the history to the immediate problem.  If the history is helpful in understanding the nature of the instant problem, it should be included near the beginning, as part of the introduction.  Should the history have little relevance to the immediate problem, but merely be background material, it may logically be placed later in the research report.

Marilyn: Knowledge of the history of the law is relevant in terms of situating it in the research report.  Perhaps the law already exists to solve the problem and is not being implemented, due to the absence of an implementation framework and enforceable measures or the social problem has been identified as a policy and subsequently for legislative action to bring about the desired behaviour or the history may help to identify how the difficulty has been perceived over time or the history may  help to show the causes of the behaviour.  Depending on the nature of the history,  it will determine where in the research it is located e.g. either in the introduction (to –show where it fits into the larger contract);  the difficulty stage (time related perspective of the difficulty) or the explanation (causes) stage.

Question 5

What kinds of information concerning relevant foriegn law and experience might drafters find useful to include in their research reports? What considerations might influence their decisions as to where to include that information in their reports?

Rob: Relevant foreign law and experience may provide general background information; offer insights into the causes of problematic behavior; help explain the behavior; or suggest possible solutions. As with considerations of where to include the history of the problem, the best place to include references to foreign law and experience is determined by the drafter’s reasons for including it in the research report. Although foreign law is not in itself a solution, it will be included in the “solutions” section if it supplies ideas about the various legislative solutions and their consequences.

Mavis: The useful information which may be included may include the history of the problem in the foreign country, the relevant provisions of the law which was enacted to deal with the problem and whether the law has helped to deal with the social problem concerned.

Christopher: Relevant foreign law and experience may be helpful in showing how effective or ineffective other legislative strategies were in addressing problematic behaviors.  However, a drafter must be careful not to over-generalize, and resist the temptation to copy other legislation.  Each country has unique circumstances, including cultural issues.  Put another way, other country’s experiences concerning how a law worked or did not work can help the drafter avoid potentially ineffective approaches.

Marilyn: While the drafters cannot copy foreign law safely, he can learn for such a law as it contains data that might be useful to the drafter.  The drafter can learn lessons of experience from the implementation of similar laws in a foreign country that outlines the difficulties experienced.  The drafter then may wish to caution against the incorporation of similar provision in the introduction stage of his research.

Foreign laws provide sources of ideas about solutions since contextually the solution is country specific and what might work in one context might not work in an entirely different environment as regards to social, cultural, technical and political specificities.

Question 6

Why should drafters formulate hypotheses ('educated guesses') about the nature and causes of the social problems their bills aim to help resolve before gathering data? How do those hypotheses help drafters decide what kinds of detailed provisions to include in their bills?

Rob: Often the “naive” question asked by a lay person is the most penetrating because it is unencumbered by the body of accepted presumptions that arise around individual topics. In the same way, a hypothesis or “educated guess”, formulated before gathering data, may provide the benefit and guidance of a fresh perspective.

The drafter formulates two kinds of hypotheses: descriptive hypotheses that describe the nature and scope of the problem and whose and what behaviors comprise it; and, causal hypotheses to explain the causes of the problematic behaviors. These two kinds of hypotheses guide the researcher when gathering and considering information.

If the drafter is unable to falsify an hypothesis, in the sense that the hypothesis seems consistent with available evidence, the drafter may fairly claim that the hypothesis provides a reasonable basis upon which the drafter may formulate a legislative solution.

Christopher:  The use of descriptive hypotheses or “educated guesses” may help the drafter to identify the causes of behaviors.  This, in turn, may lead to specific research which may falsify the hypothesis.  If the hypothesis cannot be falsified, it may provide a viable path to crafting specific provisions of a bill directed toward changing the problematic behaviors.

Marilyn: The hypotheses will serve as  guide, providing a focus for data collection research information to support the claims being made and to ultimately justify the bills provision. These hypotheses will on the collection of supporting or disproving data and research information, help the drafter to appropriately:

Question 7

What would you identify as the main advantages and disadvantages of using quantitative as compared to qualitative evidence to demonstrate the likelihood that a bill's detailed provisions will help to resolve the social problem it aims to reduce or eliminate?

Rob: One of the advantages of using quantitative information in a research report it that many people (rightly or wrongly) find it more persuasive than qualitative information – it has more weight because it is considered more scientific. As Ann Seidman says on the lecture tape - there is a saying that “if you can’t count it, it doesn’t count”. A bill accompanied by a persuasive report is more likely to be adopted.

Quantitative information is usually derived from counting people or their ideas or opinions. It is information that is measured or expressed in numerical terms. Statistical and numerical information is important for measuring progress and for planning and administering resource use.

The disadvantage of quantitative information is that it often comes without an explanation – the raw data obtained from a census, for example. Quantitative information may tell the researcher that disabled persons are less likely to be employed than able- bodied persons but this statistic does nothing to explain why this is so.

Qualitative information obtained from open-ended interviews, narratives, and focus groups provides an opportunity to view individual subjects of research as whole human beings. This holistic information is more likely to explain the matrix of causes underlying the subjects’ behaviors. Qualitative information has its own persuasive power by, among other things, providing clear illustrations of the social problem through “real life” examples. 

Mavis: The main advantage is that the quantitative methods will help in the gathering of larger quantities of data to help prove or disprove the validity of a hypothesis. When I was working at the Ministry of Justice in Zimbabwe in the early 1990s, we conducted research to see whether polygamy should be outlawed in the country. My own personal hypothesis was that polygamy is wrong, that it is prejudicial to women and that it should be indeed outlawed. However the quantitative method we used of surveying the views of various stakeholders showed that my hypothesis was wrong and that in fact a great majority of the country’s populace including women, as shown by the cross section surveyed supported the retention of polygamy with many viewing it as a part of the culture of the country.

Christopher: If something may be quantified, it is possible to measure the success or failure of a bill to induce the desired behavioral changes.  Tangible, mathematical evidence is generally more persuasive than “soft” qualitative data.

Marilyn: Main advantages and disadvantages of using quantitative as compared to qualitative evidence to demonstrate the like hood that a bills’ provision will help resolve the social problem it aims to reduce.

The main advantage of the quantitative as compared to the qualitative evidence are:

• Unlike qualitative methods, quantitative methods cannot deal with group dynamics and inter-relationships that characterizes the implementation process largely because one is dealing with behaviours and their causes which are subjective.

• Qualitative methods have difficulties also in that they require multi-disciplinary skills and are prove to a high degree of subjectivity

• Quantitative methods prove useful in the context where measures are required to be included in a bill – here quantitative verifiable form of data is relevant for alternative measures.  This is most useful in cost benefit analysis be quantified – drafter must therefore rely on qualitative methods.

• Qualitative techniques allow the drafter to focus on the social actors providing insight into the inter-relationships between and among social actors.