Responses to the Study Guide Questions forSession B-2, Slides #15-16Question 1 Throughout the world, popular belief views the law as a series of prohibitions: Thou shalt not do such-and-so. What reasons can you give for -- as does this course -- asserting that, in developing and transitional societies, the form of law should focus, not on prohibitions, but on affirmative commands and permissions? Marshall Islands: It seems to make good sense that in order to achieve transformation one must use positive directions and commands rather than only using prohibitions. One reason that several people in our group raised immediately is that if you just use "thou shalt not..."-type of provisions (i.e. prohibitions) people will often find a way to get around the prohibition...they will come up with alternative behaviours to accomplish their goal or continue their life as it always was. This appears to be the experience in the Marshall Islands with prohibitive legislation such as criminal provisions, where there is no corresponding alternative behaviour that is also prescribed by the law....people tend to find alternative ways around the legislation to accomplish their goal. In a developing country, if change and development is desired, then the goal of legislation is or should or could be to transform the society and shift it into a new set of behaviours. Prohibitive provisions alone may not accomplish this because people will just head in other directions -- either:
Neither of the above 2 results will lead to the desired result EXCEPT BY ACCIDENT. Therefore in order to steer a population into a very specific direction, legislators will have to mandate that they go in that particular direction, rather than simply telling them NOT to go in a certain direction. In general, doesn't psychological research indicate that humans respond better to positive direction than they do to negative feedback and/or negative consequences? Mavis: Firstly, I believe that this assertion should apply not just to the developing/ transitional countries but even to the so-called developed countries. I understand that this movement of moving towards “soft laws” as it were has been influenced by the belief that people should not be unnecessarily criminalised but that instead laws should focus on affirmative commands and permission. Whilst I agree that the law should not just be about prohibitions, I would also state that there is still a place for such in order to maintain order in societies. Marilyn: Reasons for asserting that in developing countries, the form of the law should focus not on prohibitions, but affirmative commands and permissions. Prohibitions usually mean having the resources to ensure the effectiveness of enforcement. It means having in place an enforcement agency with adequate level of human and financial resources to endure compliance. In developing countries resources are often inadequate to deal effectively with the issue of compliance. Consequently, bills that are largely prohibitive in their provision do not give rise to desired behaviour due to inadequate resources for enforcement. Affirmative commands generally tend to be more realistic, encourages self- regulations Question 2 Do you find it helpful to start organizing a bill (like the Workman's Compensation bill, or those in the Manual's exercises in Chapter 8) before you have done any research on those bills? Why or why not? Marshall Islands: YES -- the overwhelming answer on the part of everybody in our group was YES, it is very helpful to start organizing a bill (and specifically, writing the outline for that bill) before you even start to do the research that is required (let alone drafting the actual provisions that will be in the bill). Writing the outline for the Workers Compensation bill showed us why this is extremely helpful because:
Mavis: No, I definitely feel that I need to go back and do some more research into the subject matter of my problem so that I can form hypotheses and then start organising my bill. Marlyn: As a drafter, subject matters that are unfamiliar would of necessity require much research to establish familiarity and understanding of the basic principles of the subject matter before attempting to draft a bill provision. This provides the basis for grounding the bill’s details in reason informed by experience. Personally, not knowing anything or very little about the subject matter makes it difficult to draft the related bill before undertaking the necessary research to inform the process. Without such an exercise the effort would be meaningless. Question 3 If you have attended another drafting course, what did you learn about how to outline your bill? Which do you find more useful: the methodology suggested here, or what you learned in the other course? Why? Marshall Islands: YES, at least 2 of our people in our group have taken some form of legislative drafting training before and we thought that this course's problem-solving methodology is definitely more useful than what we received in other training - I have received some training but was not actually taught a proper methodology at all -- just some specific drafting techniques and "rules" - this methodology looks like it will be useful in forcing drafters to really address the root of the problems at hand Question 4 Do you find it helpful to focus on the six kinds of prescriptions that a bill contains [e.g. those addressed to (1) role occupants, (2) implementers, (3) defining sanctions, (4) dispute settlement institutions, (5) funding agencies, and (6) officials who keep the corpus of the law in order] as a way to job your imagination concerning your bill's form as well as its content? Marshall Islands: YES -- we all thought that it is very helpful indeed to learn and review the 3 prescriptions (commands, permissions and prohibitions) and the 6 addressees (primary role occupants, implementing agency officials, sanctions-deciding agency, dispute settlement agencies, funding agencies and officials who keep the corpus of the law in order). Tthis is a very helpful way of organizing our thoughts, organizing the bill and ensuring that key aspects are not forgotten about when we draft bills. Mavis: Yes, it is to work in this way as I see that organizing the Bills form also helps to start thinking of the content. |
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