Assessing A Bill In Terms Of The Public Interest: The Legislator s Role In The Law-Making Process

Author:Ann Seidman; Robert Seidman
Profession:Professors of Law
Pages:207-256

    Ann Wilcox Seidman has held numerous academic positions in the United States and abroad (including visiting distinguished professor, the School of Law, University of Witwatersrand, South Africa, 1998; Fulbright professor, Economics Department, University of Beijing, Peoples Republic of China, 1988-89; professor of economics and head of department (1980-82), University of Zimbabwe, 1980-83; professor of economics and head of department, University of Zambia, Lusaka, Zambia, 1972-74; senior lecturer, University of Dar es Salaam, Tanzania, 1968-72; and lecturer, University of Ghana, Accra, Ghana, 1962-66). She is the author, co-author, editor or co-editor of 24 books and reports on the development process and economics, and is the author or coauthor of over 80 articles and published papers. She has served as a consultant on numerous assignments, particularly in Africa and East Asia. Dr. Ann Seidman holds a doctorate in development economics from the University of Wisconsin, Madison, Wisconsin (1968), an M.S. degree (economics) from Columbia University, New York, New York (1953), and a B.A. degree from Smith College, Northampton, Massachusetts (1947).Robert B. Seidman is professor of law and political science, emeritus, Boston University School of Law. Other academic appointments include: visiting distinguished professor of law, University of Witwatersrand, South Africa, 1998; Fulbright professor of law, Peking University, 1988-89; professor of law and political science, Boston University, 1972-92; visiting professor of law, University of Zimbabwe, 1980-83; professor of law, University of Zambia, Lusaka, Zambia, 1972-74; visiting professor, University College of Dar es Salaam, Tanzania, 1968-70; professor of law, University of Wisconsin, 1966-72; special visiting research professor of law, University of Ghana, 1965-66; senior lecturer in law, University of Laos, 1964-65; and senior lecturer in law, University of Ghana, 1962-64. He has authored or co-authored 12 books and over 70 articles and published papers. He is a frequent consultant and adviser, particularly in Africa and East Asia. Robert Seidman holds an LL.B degree from Columbia University Law School (1948) and a B.A. degree from Harvard University (1941).

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1. Introduction

Almost half a century ago, when we first went to teach in newly independent Ghana's first university, President Kwame 1Nkrumah proclaimed, "Seek ye first the political kingdom, and all else shall follow." Most of the new constitutions, in Page 208 developing and transitional countries alike, bestowed on the deputies "the legislative power." In the political kingdom, the deputies stood tall.2

Those deputies enacted many new laws. Only rarely did those laws succeed in significantly improving the majority of their constituents' lives. At the millennium, four-fifths of the world's people, living on only a fifth of the world's total product, Page 209 still struggled to survive.3 Despite the new laws, people often lack adequate food and shelter, education and health, deprivations that keep them from leading the kind of life they value.4 Everywhere people complain, "we have good laws, but poor implementation."

This article attempts to shed light on why the new laws did little to improve the situation. To help overcome the causes of new governments' too frequently ineffective law-making processes, it offers a solution to address the legislative problems following institutional legislative theory's problem-solving methodology.

We first locate the problem of law-making and its core skill, assessing a bill, in the larger context of development and transition. To exercise their constitutionally-assigned legislative power, deputies must undertake three main tasks: to debate and enact laws; to oversee government's implementation of the laws it enacts; and to maintain two-way communication channels with their constituents. For all three tasks, deputies must have the capacity to assess whether, in their countries' unique circumstances, the bills on which they vote will likely achieve their stated objectives.

We put forward two hypotheses to explain why deputies in so many countries voted in favor of so many seemingly transformatory bills that defied effective implementation. First, institutionalized legislative procedures fostered their role as agents for party or narrow constituencies, rather than as trustees for the public interest. Second, the deputies had no legislative theory to guide them in assessing a bill's likely social impact. Instead they frequently enacted bills that merely stated broad principles, that copied law from someplace else, that simply criminalized unwanted behavior, or that merely compromised competing interest groups' interests.

When a deputy votes to approve a bill, the "aye" vote signals that the deputy approved the bill's policy, priority, design, and form, and its particular resolution of the power struggle between groups concerned with the bill's subject matter. Of these, we discuss here only problems in connection with assessing the bill's design " i.e., whether the legislative program it prescribes will likely resolve the social problem at which it aims in the public interest. We assign the term "the public Page 210 interest" a populist meaning: When implemented, will the new law likely advantage the majority of the population, and especially its most vulnerable members?

The second part of the article offers an institutionalist legislative theory to assist a deputy in using facts and logic to determine a law's likely social consequences. It emphasizes as the key question a deputy must ask: Why do people behave as they do in the face of a rule of law? Building on the answer to that question, it shows how institutionalist legislative theory empowers a deputy to analyze the causes of problematic behaviors that a law seeks to resolve; and to assess whether, by inducing new behaviors that tend to overcome those causes, logically the proposed law's detailed provisions will likely help resolve social problems in the public interest. On that basis, we conclude by showing how a deputy may use that theory to decide what questions to ask to assess a bill.

2. The Larger Problem

This article addresses the seemingly narrow social problem of most deputies' inability to assess a bill's design. That inability inevitably hinders a legislature from enacting legislation required to meet the challenges of social, political, and economic institutional transformation that lie at the heart of development and transition. This chapter defines the nature and role of the institutions and behaviors that hinder lawmakers from using the legal order to effectuate transformation of existing institutions in the public interest.

2.1. Of law, institutions, and behaviors

The seizure of state power by new populist governments (conservative parties seldom lead anti-colonial revolutions) created a paradox. At the outset, the new leaders had small choice but to rule through inherited authoritarian governmental, social, and economic structures that perpetuated cruel disparities in power and privilege. To achieve their populist goals, they had to transform those institutions to serve the people.5

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