Special Workshop Abstract

However, in setting new standards for future legislative action, one may not overlook the fact that the overwhelming majority of existing rules can be labelled as instrumentalistic. Legislative ex post evaluation can help to identify flaws in the actual functioning of these rules in society. In a second pass, the shortcomings could then be corrected by critically altering the instrumentalistic law or, more radically, by foreseeing in an alternative to regulate the specific societal sphere. In addition, we argue that ex post evaluations can offer valuable insights in the functioning of the alternative ways of regulation. Since self-regulation, broad law etc. are newcomers in the contemporary regulatory landscape, it is crucial that their impact, efficiency, and other characteristics are subjected to in-depth examination. This can prevent exchanging one evil with another one.

Insofar as new problems in society are be treated by the policy maker, evaluation ex ante enters the picture. A main function of this prospective reasoning is deciding which is the most adequate way to deal with a problem from the legislator’s viewpoint. Expressed in operational terms, ex ante evaluation should provide comparative measures of the probability of successfully solving societal problems by different techniques. This definition does not limit successful problem solving to goal attainment or optimalized efficiency, as implicitly understood in the instrumentalistic tradition, but enforces a reflection on what can be considered as a successful intervention by the legislator. This could protect prospective evaluation from being reduced to a mere comparison of techniques. Instead, the evaluation raises important questions on the relation between the legislator and society.