Responses to the Study Guide Questions for

Session A-5, Slide #8

Question 1

Many courses on decision-making require the student first to state the ends or objectives of the program, and then to determine the most cost-effective means to get there. In your view, what constitutes the advantages and disadvantages of problem-solving over ends-means?

Marlyn: Advantages and Disadvantages of “problem solving” over ends andmeans methodology.

The problem solving method allows the drafter to have information on the relevant legal and non-legal factors that impact the behaviours of implementing agencies and role occupants and in so doing the drafter is able to establish exactly who and what behaviours are causing the identified social problem for which the drafter has to draft the legal solution.  The ‘end and means’ method assumes that the drafter already has a clear idea and understanding of the issues and impacts of a social problem and so can immediately state the “end” ,”objectives’ or  solution to derive the desired behaviour.  From such presumption, the drafter can propose the most cost effective means of getting the desired behaviours. Unfortunately thistype of methodology gives too much credence to the drafter, i.e. assures he has a vast knowledge/information base on which to design legislative solutions without the benefit of research, which given the real word context he cannot have unless he undertakes the appropriate research and analysis before hand. Such comprehensive knowledge realistically does not reside in any one individual especially given the variety and specificity of knowledge bases specifically relating to the various disciplines that engage human existence.  The problem solving methodology allows the drafter to determine all the legal and non legal factors in respect of resources that will impact desired behaviours and that have impact negatively on the attainment of desired behaviours.  In so doing the drafter can be selective, economical, precise and unambiguous. in his proposal of the legislative solution he will design, so that it will be of relevance and  specific in its measures as regard the addresses i.e., implementing agencies and role occupants whose behaviours it aims to change.

On the other hand, the problem solving approach could be time consuming, requiring the use of limited resources especially of concern, in a context of scarcity of financial and technical capacities required to inform the appropriate research and analysis. In such a context, the legislative exercise requires the drafter to be rigorous, realistic and to prepare  an appropriate legislative programme, that would establish a priority in the legislative drafting programme even in respect of a specific social problem.

Christopher: Stating the ends or objectives of a program before defining the behaviors comprising the difficulty has several shortcomings.   It “puts the cart before the horse” by attempting to define a desired outcome without knowing what behaviors comprise the problem, and which primary role occupants are engaging is such behaviors.  If the “end” does not alter the problematic behaviors of the primary role occupants, the law will fail in effecting the desired social change. Thus, the law might be perceived as successful because the defined end was achieved, but operationally be a failure because the problematic behaviors did not change.  Similarly, the most cost-effective means to achieving the defined “end” may not necessarily result in the desired behavioral changes.

Defining the problem in terms of behaviors, and identifying the individuals engaging in such behaviors, allows the drafter to craft legislative language that directly addresses the social problem.  This eliminates the uncertainty and guesswork inherent in the “end-means” approach.

Question 2

In the research report, why should a drafter specify not only the social problem as it appears on the surface, but also whose and what behaviors constitute it?

Marlyn: A drafter should specify in a research report not only the social problem but whose and what behaviour constitutes that problem.  The reason is that the social problem as manifested is the outcome of action or non-actions on the part of persons operating in a specific context.  Consequently in order to address the problem through the appropriate solution, the drafter must identify who is causing the problem and what behaviours those actors are engage in that are giving rise to the problem.  From the knowledge of the who and what the drafter will be in a better position to determine the appropriate legislative measure to change the behaviours of the actors in order to solve the social problem or ameliorate that problem.

Christopher: Determining which specific behaviors comprise the social problem permits the drafter to create language which seeks to change such behavior.  However, if the actors, or primary role occupants are not defined, it becomes impossible for the drafter to craft language which addresses the “who” as well as the “what.”  Merely articulating which behaviors must change is inadequate.  The law must address, as specifically as possible, whose behaviors must change.

Rob: Specifying whose and what behaviors constitute the social problem in the research report is critical to a deeper appreciation of the problem. If the drafter does not specify whose behavior and what behaviors comprise the social problem the drafter will be unable to move logically to the next step of the problem solving analysis which requires the drafter to explain why the problematic behaviors are occurring.  Describing the "who" and the "what" sets up this analysis. It ensures proper consideration of the causes of the difficulty and, in turn, solutions to the causes. As stated earlier in this course, a bill can only be effective in so far as it can change behaviors. Understanding whose behaviors and what behaviors comprise the social problem is a necessary first step in this process.

Question 3

The problem-solving methodology seems to say that explanations for the difficulty appear in Step II. In fact, does not the drafter begin to explain the difficulty in Step I when specifying whose and what behaviors 'constitute' the difficulty?

Marlyn: Indeed the drafter does  begin to explain whose andwhat behaviour are from steps 1 of the problem solving methodology.  This is so because the difficulty is really a specific derivative of the more general social problem.  A manifested social problem could be quite extensive in terms of the variety of factors both legal and non legal which are giving rise to it and as such it might not be a simple issue but comprises various interrelated issue and constraints that need to be disaggregated in determining precisely how these varying issues are interrelated to cause the social problem as manifested.  The causal relationships themselves that can be difficulties of themselves to the extent that a social problem could comprise many “difficulties” to be addressed wherein each one could require its own legislative solution, Thus in such a context the drafter will of necessity need to identify the various “difficulties” that comprise the social problem and recommend a legislative programme to address these “difficulties”.  The social problem could also relate to one area of ‘difficulty’ which if addresses could lead  to the resolution of all interrelated issues that cause the problem.

In any of these context as outlined it is clear to seek that in elucidating the social problem in step 1 , the drafter will, if he has a thorough understanding of the problem, will present through his  presentation of preliminary explanations of the difficulty so that the reader would know exactly at the outset the  area (specific difficulty) of the problem the proposed legislative solution will address.  It allows the drafter also to be focused, in his presentation of the relevant information throughout the body of the research report and in guiding his research and analysis for presentation in that report.  Later in Step II, the drafter will present the more detailed explanation of the difficulty in a more focused and articulated manner, which will be informed by the relevant research and analysis.

Christopher: Step I consists of a brief statement of the problem, and the bill’s proposed solution.  This section may also address the larger context of the social problem, the history of the problem, and a brief statement of the problem-solving methodology. Step II is more specific.  It includes a discussion of the nature and scope of the superficial manifestations of the difficulty.  Recognizing that law can only address behaviors, it states whose and what behaviors constitute the difficulty. 

Rob: Describing whose and what behaviors constitute the social problem helps to explain the problem. For example, if the problem in its surface appearance or “superficial manifestation” is water pollution, describing whose and what behaviors result in water pollution helps explain why the water is polluted. Perhaps it is because the municipality is dumping raw sewage, or because logging companies have engaged in logging practices that result in excessive run off.   Why the actors (in this case the municipality and the logging companies) act as they do is answered by the second stage of the problem solving analysis which considers the underlying causes of the actors’ problematic behaviors.  Specifying the who and the what provides a “first level” explanation.

Question 4

"Problem-solving rests," its propoents claim, "on facts and logic." Opponents argue that assertion merely disguises the reality that decision-makers (here, the drafters) base their choices on subjective values. Discuss.

Marlyn: I disagree with the opponents argument that the assertion that the problem solving rests on  facts and logic merely disguises the reality that the  drafter bases his choices on subjective values. The drafter must have knowledge of whose and what behaviour he must design legislative measures to change, He cannot be clear in this unless he undertakes the necessary research. And despite his own subjective preferences he has a responsibility to the legislators and decision makers and to the parliament to prepare research and analysis and present the findings of facts in a research paper such that the decision makers will have an informed basis to assess the draft bill for enactment. The RCCIPI Agenda provides a check list for determining the relevant information to include. Apart from any directive given to him that will compromise his moral/ethical values  and would facilitate corruption, the drafter has the obligation to respond to his directive and provide the facts as they are determined. He therefore is not expected if he follows the procedure as per ROCCIPI agenda and following the findings of facts, to based on his own subjective values.

Christopher: The approach of defining social problems in terms of behaviors, and identifying the primary role occupants whose behavior requires modification minimizes the risk of basing choices on subjective values. However, the mere act of defining a behavior as desirable or objectionable necessarily involves subjective values arising cultural dynamics and belief systems.  Bills must be based on “reason informed by experience,” using logic and facts relating to a country’s unique circumstances.

Rob: A drafter cannot escape completely from the drafter’s own subjective values. Even if the drafter has no emotional attachment to a particular social problem, (that is, the drafter is apparently value-free) the drafter may still be guided by unconscious considerations. However, subjective values and unconscious bias can be minimized by a rigorous problem solving methodology, which requires, among other things consideration of alternate explanations for the problem in relation to the best available evidence. This process helps ensure that all explanations are given conscious and conscientious consideration.