Ex Ante Evaluation of Legislation Torn Among its Rationales

Abstract

Why do we conduct Ex ante Evaluation of Legislation or regulation (EEL)? In the light of economic theories, this paper investigates a series of distinct and sometimes competing rationales or purposes for EEL. They include the mainstream economic rationale, i.e. improving the quality of legislation, as well as a number of purposes which link in with fundamental legal principles, such as accountability, transparency and democracy (representative, participative or counter-majoritarian). They are complemented with more complex rationales based on specific strands of economic theory, including remedying information deficiencies and committing players in the legislative game. The picture would not be complete without the less rosy rationales, namely deregulation and legislative entrepreneurship. Most of these rationales - except for the last ones, which do fit part of the practice unfortunately - are compatible with each other, providing strong explanations for one or the other feature of EEL. In the end, it seems more appropriate to picture the EEL as a multi-purpose instrument, following a number of strong and mutually reinforcing rationales. Through this fundamental inquiry, the paper also highlights a number of open issues, including if and how the EEL contrains the decision-maker, whether the EEL is available as evidence in subsequent judicial proceedings and how the expert, technocratic and political rationalities behind the EEL relate to each other.

Keywords: impact assessment, deregulation, legislative entrepreneurship, accountability