Responses to the Study Guide Questions for

Session A-8, Slides #8 & 9

Question 1

Why should you consider all the possible alternative legislative solutions to the social problem which your bill aims to resolve?

Mavis: The reason is two-fold -- to ensure that no credible alternatives are missed and also to ensure that ultimately the best solution is chosen.

Marlyn: One should consider all the possible alternative legislative solutions to the social problem which the bill aims to resolve in order to provide the most efficient, implementable and cost – effective solution that will give rise to the desired behaviours expected to resolve the social problem.

Christopher: Identification of the most promising strategy for inducing desired behavior requires the drafter to consider all possible legislative solutions to a social problem.  Failure to do so may result in the implementation of a less-than-optimal strategy.  Selection should incorporate an assessment of the probable social costs and benefits of each solution.  In addition, economic costs must also be considered.  An ineffective solution cannot be cost effective.  Therefore, the best possible alternative should be selected.

Rob: In order to determine the best solution to the social problem the drafter should consider all possible alternative legislative solutions.   Providing detail and critical analysis of the most credible alternative solutions in the research report helps justify the preferred solution. In this way the reader will know that no realistic alternative was overlooked by the drafter.

Question 2

What sources can you tap for possible legislative measures, other than the ones that have come to your mind as logical changes in the legal and non-legal factors that currently seem to cause the social problem?

Mavis: The sources for possible solutions include the foreign law and experience, the professional literature, the country’s past experience and also the drafter’s own ideas.

I do not agree that the most valuable part of foreign law and experience is about what solutions not to adopt. In my experience whilst there are differences between countries experiences there are also many similarities and thus there is a lot to be said for learning from other countries in what to adopt. In looking at other countries laws, we should not just approach with an attitude that the laws failed. Some laws have actually worked and those should be looked at with an attitude of what should we adopt from this law.

Lorna: We can learn a lot from both ineffective and effective foreign laws. However, it is important to remain cognizant of why these laws were either ineffective, or successful, in their country-specific circumstances.

A drafter may copy a law that looks good on the books, without regard to whether or not it was effective in its original jurisdiction. Another drafter may copy a law which is effective in its original jurisdiction. However, it is important to remain cognizant of the reasons why a law has either failed, or been effective, in its original jurisdiction. If an effective law is imported into a country that has a completely different set of underlying institutions, it will not be effective in the new jurisdiction. Likewise, an ineffective law could be effective in a new jurisdiction, with additional provisions to cure omissions in the original law, and to ensure that the new law reflects the new jurisdiction's underlying institutions.

Marlyn: Likely sources that one covered tap for possible likely legislative measures are :

1. Foreign laws and experience in the lesson of experience could indicate what is possible but always the drafter must bear in mind the contextual conditions of the law being studied.
2. Professional literature
3. Country experience
4. The drafters own ideas

Christopher: Ideas may be found from a variety of sources.  These may include:

a)  Foreign law and experience.  However, the drafter should not copy the law of another country.  The most valuable aspect of looking at the laws of other countries is identifying what did not work, and why.

b)  Professional literature.  Literature in the discipline affected may be a source of ideas for solutions to problematic behaviors, and strategies for changing such behaviors.

c)  Your country’s past experience.  As with laws in other countries, examining why previous solutions have failed may avoid repeating the same or similar mistakes.

d)  Your own ideas.  The experience and knowledge of the drafter, particularly after writing a research report, may be a source of useful ideas.

Rob: Apart from a drafter’s own ideas, sources for potential legislative measures include foreign law and experience, professional literature, the country’s experience with earlier attempts at resolving the same or similar problems, and the ideas of policy makers and government officials who are familiar with the social problem.

Question 3

Why, before deciding which ones to incorporate in your bill, should you consider the details of the most promising alternative legislative solutions in light of your own country's unique circumstances?

Mavis: This is important because to ignore a country's unique circumstances may lead to an ineffective law. Laws should always be tailored to what pertains in a country.

Marlyn: Before deciding which measures to incorporate into the bill , the drafter must consider the most promising alternative legislative solutions in light of the country’s unique circumstances.  In considering the details of each promising alternative legislative solution, the drafter will be able to decide on the preferred solution from an informed position based on reason informed by experience.  In this way the drafter will become aware of the impact of legal and non-legal constraints on each promising alternative solution and will be in a better position to compare these impacts in deciding the preferred option.

In a country such as Guyana, where resources both technical and financial are scarce or limited, cost-effectiveness of solutions is a critical success factor and this combined with any solution aimed at a collaborative, participatory, multi stakeholder implementation framework where implementation activities emphasize costs sharing of monetary and non monetary resources to the extent that can be garnered to induce the desired behaviours, is a critical success factor.

In fact, the very act of stakeholder collaboration within an implementation process and framework suggests that the various stakeholders who may be the primary role occupants/addresses,  would take ownership responsibility for the expected outcome in terms of the desired behaviour in the face of the rule of law designed to solve the social problem being addressed.

Christopher: A law that works in one country may be utterly ineffective in another.  The unique circumstances of a country must be considered in the context of the culture, human and natural resources, and past experience.    These factors, along with a careful ROCCIPI analysis of specific behaviors, should lead the drafter to the best solution for each specific jurisdiction.

Rob: The drafter must consider the most promising legislative solutions in light of the unique circumstances of the drafter’s country. Foreign law and experience may provide a helpful source of ideas for a legislative solution but foreign law is not, in itself, a solution. The most promising legislative solution is the one that addresses all aspects of the country-specific social problem. Country-specific circumstances have implications for every aspect of the problem-solving methodology including formulating the most appropriate solution.

Question 4

Do you agree that, in assessing the alternative possible legislative solutions, you should take into consideration at least four of the six issues that help to structure a bill's form:

a. the primary role occupants' prescribed behaviors;

b. the specification of the agency, and the criteria and procedures it should follow, in implementing the bill's provisions;

c. the conformity-inducing measures the implementing agency should apply; and

d. the financing of the implementing provisions?

Mavis: Yes, I agree because this will help to come up with the details necessary to draft the detailed provisions of the bill.

Marlyn: It is imperative that the drafter considers the following issues in assessing the alternative possible legislative solutions, i.e.:

These four (4) aspects will together determine the level of effectiveness and implement- ability of each alternative possible legislative solution to the extent o allowing the drafter to decide on the best or preferred option.

Each of these four issues must be applied to each alternative possible legislative solution in assessing their potential impact and implementability in order to derive the preferred legislative solution to address the social problem.

Christopher: Yes. 

a)  The primary role occupants prescribed behaviors give rise to institutions.  One cannot change an institution, or problematic behavior, without understanding both the who and the what of the behavior.

b)  An elegant solution will fail without effective implementation.

c)  The conformity-inducing measures will determine how the primary role occupants must change there behaviors.  The bill will be effective only if the conformity inducing measures change the problematic behavior.

d)  Financing of the implementing provisions is essential to the success of a bill.  Sources of funds must also be identified.

Rob: All six of these provisions always exist in relation to any given bill but most bills do not deal directly with all six kinds of provisions. For example, most bills do not provide for a dispute resolution system separate from the system provided by the exiting courts. The first four issues in the above list are the ones most likely to arise in every transformatory law.

Question 5

Why, in deciding among alternative solutions, should you weigh the social, as well as the economic, costs and benefits?

Mavis: The law must bring social improvement into the community because that is the point behind it. Ultimately, even if it comes with both a social and an economic cost, the social and economic benefits should be more than the costs.

Marlyn: It is important that the drafter weighs the social as well as the economic cost and benefits in deciding among alternative solutions.

The social aspects are critical elements since there are various social strata and this diversity in social groupings mean that the law will not affect all equally and their ability to respond in the face of a rule of law will be determined by their ability to use their power and interests to communicate to the decision-making authorities if a legislative change will adversely affect their interests.  This is of significance when one considers the poor and vulnerable who are powerless to influence the decision makers, as they are often under-represented.  It is therefore imperative that the drafters considers their interest together with that of the more powerful groups and present the concerns of all, supplying the evidence to enable the law to be fair as far as possible to the contending groups.

Valued inchoate interest such as human rights is of importance and a drafter needs to identify these rights, which will be infringed and inform lawmakers accordingly.

Christopher: Social costs and benefits must be considered because they will affect the success or failure of the proposed bill.  Social benefits and costs will be affected by the local culture, in addition to natural and human resources.  As previously stated, a law cannot be cost effective unless it results in desired behaviors.  A law that is ineffective is a waste of social and economic resources.

Rob: In deciding among legislative solutions the drafter should weigh social costs and benefits as well as economic costs and benefits. Economic costs and benefits may be easier to quantify but do not provide a complete costs-benefits picture. By taking account of a bill’s impact on human rights including its impact on women, children, the poor, minorities, the environment, as well as its implications for good governance, the drafter provides a broader view of the bill’s worth to society.

Question 6

What would you take into consideration in assessing the kind of dispute-settlement systems proposed for each of the alternative possible legislative solutions?

Mavis: The factors that should be taken into consideration include the efficacy of the system as well as the course of the funds to run it.

Marlyn: Factors to be considered in assessing the kind of dispute – settlement systems proposed for each of the alternative legislative solutions:

1. The capacity in terms of the technical and financial resources capability
2. Whether the system is to be operated by a proactive or a reactive implementing agency
3. How will the dispute resolution agency decide disputes e.g. by applying the new law, mediation and compromise? Will the agency have to make polycentric decisions?
4. The length of time to be accorded to the resolution if dispute.
5. That the system must be designed to suit the case the agency will have to resolve in terms of procedures, level of formality, qualification of specialist required to decide on a particular issue.
6. The types of remedies that will be required
7. How will non-compliance come to the agency’s attention, what rule of evidence will be applied

Who can appear and what should constitute the standard for appeal. 

Christopher: Factors to consider in assessing the kind of the dispute-settlement systems proposed include:

            a)  Selection of the appropriate implementing agenc(ies).
            b)  Creating a new agency, if necessary.
            c)  Prescribing the structure and processes of the implementing agency.
            d)  Prescribing the duties and powers of the agency.
            e)  Defining the decision-making sysem.
            f)  Defining the rule-making system.

Rob: The important considerations for assessing the best kind of dispute settlement system in relation to any given solution include:

            1. the degree of expertise required;
            2. the degree of judicial formality necessary to assess significant issues;
            3. the presence or absence of a legal aid system to help unrepresented litigants in  a more formal system; and      
            4. the cost of additional cost of funding for an existing dispute resolution system relative to the cost of funding for a             new system.

Question 7

Explain the logic behind using the ROCCIPI checklist to assess the likelihood that your bill's detailed provisions will induce the changed behaviors necessary to resolve the social problem addressed.

Mavis: A reverse ROCCIPI analysis could be useful to test whether the proposed law will induce the desired behaviours. The analysis would analyse whether the proposed law will likely contribute to inducing both the primary role occupants and the implementing agency to behave as the bill prescribes.

Marlyn: Will the Bill’s provision induce the desired behaviour? The ROCCIPI analysis can be used to determine whether the bill will induce changes in each role occupant’s behaviour.

ROCCIP Agenda identifies:

The central question is whether the bill if assessed in terms of each of these categories will induce the desired behaviour in  each set of role occupants that it is addressed to. Tthe provisions of the bill should provide the opportunity and capacity for primary role occupants and implementing agency (agents) to behave as the bill prescribes.  Unless the agency has the opportunity to implement, it will not be able to do so and this is determined by ensuring that it has the capacity to make wise polycentric decisions given resources availability for carrying out the prescribed tasks/duties/responsibilities.

In terms of communication, the provisions of the law must he known to implementing agency officials as well as to the other primary role occupants so that they understand what is required of them in terms of actions that will induce the behavioural changes desired.  The communication must be clear, unambiguous and easily understood.

Interest both personal and collective must be understood and clearly represented in terms of an assessment of the potential impact in determining the provisions of the bill.

In term of process, It is important that the processes in respect of criteria for decision, procedures to follow etc are clearly articulated to avoid arbitrary decisions and to ensure accountability  and transparency on the part of implementing agency officials.

The drafter should apply ROCCIP checklist to the preferred option in respect of ensuring an effective, implementable solution to the social problem being addressed.

Christopher: The logic behind using the ROCCIPI checklists is to find out if the bill is likely to actually induce the behaviors desired.  Furthermore, it must be determined if changing the problematic behaviors will actually ameliorate the social problem addressed by the bill.  This “reverse ROCCIPI” process is used as a checklist to predict future behavior.

Rob: The ROCCIPI factors may be used to assess the likelihood that a bill’s provisions will induce the behaviors necessary to resolve the social problem. This methodology is described in the Stream A Study Guide as a “reverse ROCIPPI” analysis. It entails comparing the ROCIPPI categories that were identified in the research as contributing to the problem the bill aims to resolve with the bill’s actual provisions. If the research identifies a problem with the way an agency communicates information to a primary role occupant, for example, the drafter must ensure that the bill contains provisions that are likely to improve communication. By using the ROCCIPI categories as a “checklist” the drafter can ensure that the bill contains measures that address each underlying problem identified by the research.