Instrumentalism 2.0: Legislative Drafting for Democratic Social Change

Abstract

This article addresses developing and transitional countries' frequent failures to use legislation as government's primary tool to induce desired social change. It refutes the extensive scholarly literature that claims efforts to use legislation instrumentally prove impossible or undesirable. Using Institutional Legislative Theory and Methodology (ILTAM) as a guide, the article first identifies the social problem at issue: the common behaviours of drafters who design a bill either by copying similar legislation from elsewhere; by drafting a compromise reached by competing interest groups; by indiscriminately criminalizing unwanted behaviour; or by drafting in vague generalities. None of these methods requires the drafter to study the specific circumstances in which the targeted social problem arises. ILTAM's Step 2 directs the drafter to identify the causes of the problematic behaviours – here, principally the drafters' belief that they ought to direct their concerns not to a bill's substance, but only to its form, and their usual lack of an adequate methodology. Step 2 thus lays the essential evidential base for Step 3, the design of a solution that addresses the specified social problem. To ensure that drafters produce bills that will likely induce their prescribed behaviours, and that those behaviours will ameliorate the identified social problem, the article urges that drafters follow ILTAM as a guide for designing ‘evidence-based’ legislation. That theory and methodology teaches that law always addresses two actors (the role occupant and the implementing agency), and that individuals and collectives behave in the face of a new rule of law by making choices within the range of constraints and resources of their situation. ILTAM's Step 4 requires the drafter to ensure that a bill includes provisions for the appropriate monitoring and evaluation of the new law's implementation. Properly designed, instrumental legislation can ‘work’. Democratic self-government demands no less.

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