Chapter 1: EAC’s Health Crisis

Chapter 3: An East African... Chapter 3: An East African Community Health Commission

All content on one page (useful for printing, presentation mode etc.)

Ann Seidman and Robert B. Seidman

INTRODUCTION

The Africa Parliamentary Knowledge Network (APKN) underscores the importance of drafting 'evidence-based legislation.'  Some hold that constitutes an impossible task.³⁴   This chapter not only explains why drafting evidence-based legislation proves possible, it offers a theory and methodology to guide drafters in drafting effectively implemented laws grounded on the relevant available evidence.

This resource book comprises a case study of the possibilities of using law to help improve the health care delivery systems of the East African Community's five member states.   Its chapters illustrate the potential use of theory,³⁵ methodology and techniques to gather evidence for designing legislation, and revising it in light of available evidence.   The book aims to enable the proposed workshop's participants to engage in assessing, and as necessary, in light of their own more in depth East African experience, redrafting the bills and reports.   By assessing these drafts and in the process deepening their understanding of these tools (and their limits) as guides, hopefully the workshop participants will contribute to creating a legislative program likely to help to lessen and ultimately overcome East Africa's health crisis.³⁶
   
As part of its underlying theme, this book centers attention on two interrelated skills a drafter requires to design transformatory legislation:  

1. A legislative theory and methodology to guide the process of conceptualizing whose and what behaviors³⁷comprise a targeted social problem; and those behaviors' causes.³⁸  In order to
2. induce new behaviors likely, in the country-specific circumstances, to help resolve the problem, a bill's detailed provisions must alter or eliminate those causes.³⁹
3. The social science skills necessary to gather relevant evidence.  That evidence purports to demonstrate that the hypothesized nature and causes of the problematic behaviors do in fact prove consistent with the evidence of the country-specific circumstances in which those behaviors arise.   That evidence constitutes the factual basis that a research report must provide to justify the bill's detailed provisions.    

(Note that this Chapter and indeed this entire sourcebook concern the instrumental use of law to transform problematic institutions. They do not concern drafting 'symbolic' law – i.e., law whose proponents desire only to see the law enacted – and never mind its behavioral consequences.) 

This Chapter begins by describing the social problem this Chapter addresses. Part I(A) first describes the surface appearance of the problem confronting a drafter in a developing or transitional country, and which evidence-based legislation aims to address: The loss of the Fatal Race, between populist governors, pledged to transform the received institutions, and those institutions' resistance to change.  Which would change the other? Part I(B) explains why legislative drafters have a central responsibility for the loss of that race, and the consequent failure of Development. Part I(C) describes the drafter's professional obligation to predict the behavioral consequences of proposed legislation – a professional duty towards which drafters seem notably derelict. 

That weak ability to carry out their professional responsibility accurately to predict the consequences of their proposed bills, and the consequent inability to draft bills that work constitutes the narrow social problem this chapter discusses. (In this chapter, legislation works if it both induces its prescribed behaviors, and those behaviors help to reduce the targeted social problem.) 

This chapter's Part II then explains why drafters so frequently fail to adequately fulfill their professional obligation to draft legislation that works.  Part III, the bulk of the Chapter, describes Institutional Legislative Theory and Methodology (ILTAM) which aims to guide drafters in producing evidence-based legislation.  Part IV, the Conclusion, demonstrates how the possibility of discovering post hoc that a newly implanted law will work opens, ex ante, the possibility of using evidence as a basis for estimating the probability that a proposed law probably will work. 

PART I
WHY THE WIDESPREAD FAILURE OF LIBERATION'S GOLDEN PROMISE?

A.The difficulty addressed: The too-frequent loss of the Fatal Race

In developing and transitional countries everywhere, liberation leaders invariably promise to exercise state power on behalf of their citizens. The first president of Ghana, the first newly independent sub-Saharan nation, Kwame Nkrumah, proclaimed what in effect became a mantra for populist parties everywhere: "Seek ye first political independence and all else will follow."⁴⁰ Too often, the world around, people lament, "we have good laws, but they remain unimplemented." 
 
New, populist governors did win state power.  Then began a Fatal Race. Would the new governors transform the received, colonialist, frequently racist institutions?  Or would those institutions co-opt the new, populist governors?

Almost everywhere, the institutions won.  Among the new, populist, anti-colonial rulers, few effectively used law – the primary instrument for the exercise of state power – to resolve their countries' social problems. In some, newly elected populist governors transferred their attention to lining their own pockets.  In others, powerful interests ousted those who persisted in trying to change dysfunctional systems.  Almost everywhere, new governments failed to fulfill promises of peace, a better quality of life, and effective, people-oriented governance.  Four-fifths of the world's populations still suffer poverty, vulnerability and poor governance. 

Why the gap between the new governors' promises, and the reality? To answer that question, we preliminarily explain why this resource book focuses on the role of the drafter.

B. The legislative drafters' role

Few academics study, far less seek, to strengthen the legislative drafter's capacity to design legislation to transform the institutions that perpetuate poverty and poor governance.  In most countries, the 'drafter' plays two roles.  Conventionally, the drafter puts pen to paper (or, now-a-days more realistically, struggles with a computer) to write out a bill's words. (Call that the 'scrivener' role.)   Most people see that as the drafter's primary, indeed her sole task.
 
The drafter in practice plays an equally, perhaps even more important second role that receives almost no recognition. (Many flatly deny it.) The instructions the drafter receives from the policy-maker rarely include the details required to make the bill work.  To draft a bill, a drafter must do more than merely write out the bill's wording.  Since the policy-maker's instructions typically omit the bill's substantive details as to who must do what to implement the proposed law, in order to draft its words the drafter has no choice but to design those substantive details. Call that the 'bill-designer' role.) That role circumstances thrust, willy-nilly, on the drafter.

The bill-designer role compels the drafter to go far beyond that of scrivener, assuming a position vis-à-vis the policy-maker resembling that of the architect vis-à-vis the client.  Consider:

A family decides on a new 'policy' to obtain a new house.  At that point, if asked to describe what they mean by the policy, the family members answer only in general terms:  "Well, you know, a house, a place to live."  They consult an architect.  They discuss budget, required rooms, styles of architecture, and much more.  In time, the architect produces detailed plans and specification – i.e., detailed instructions to the builder.   Now, asked what they mean by their family 'policy', the family points to the plans and specifications.  Who 'designed' the family's policy, the family – or the architect?  Or both together?

In the same way, in the bill-designer role, a drafter inevitably must specify the detailed instructions to both sets of law's addressees (i.e., the primary actors and implementing agencies). So to do ineluctably contributes to policy-making.  In drafting legislation that works, the bill-designer role proves important – with respect to development-related legislation, all-important.  This resource book aims to illustrate the use of theory to guide drafters in their role as bill-designers of evidence-based legislation to improve the East African health care delivery system.

Too often, those who drafted development-related legislation designed laws that failed to work. That violated the essence of the drafter's professional responsibility and the corresponding professional ethical obligation.

C. The drafter's professional responsibility: to predict behavior in response to proposed legislation

Throughout society, where one person employs another in circumstances in which the client has no choice but to rely on the good faith and competence of the other, a 'fiduciary' duty arises.  As a patient, I must rely on my physician's advice and discretion.  The physician therefore has a fiduciary obligation to give me competent advice in good faith.   So also with lawyers:  A client relies on the advice and discretion of a lawyer; in turn, the lawyer has a corresponding fiduciary duty to give competent advice to that client.

And so also a client who instructs a drafter to draft legislation addressing a specific social problem (or, alternatively phrased, to achieve a specific 'generalized' end):  The client instructs the drafter:  "Draft legislation to assure that every household has a readily available supply of clean, potable water," or alternatively, by a substantively similar instruction,  "Draft legislation to address the social problem that many homes do not have a readily available supply of clean, potable water."  The drafter fulfils the duty of competence by drafting a bill that works.  Whoever else works on the bill, the drafter has the final cut and, ex necessitate, must assume responsibility for the bill's provisions.  That implies that the drafter honestly believes (a) that those provisions will induce the behaviors prescribed; and (b) that those behaviors will reduce the social problem addressed – that is, that, after enactment and implementation, the new legislation will work.  By submitting the draft bill to the client, the drafter impliedly predicts those two outcomes.

D. Summary 

A draft bill implies that the drafter predicts that people will conform their behaviors to the new legislation's dictates.  The failure to use law to implement development promises, culminating in the widespread loss of the Fatal Race, testifies to the drafters' failure to make good on their predictions: The drafter too often drafts bills that do not work.  That constitutes the social problem ILTAM seeks to help resolve.  Part II explains the drafters' behaviors that contribute to that failure.

PART II
WHY DO DRAFTERS FAIL TO ACCURATELY TO PREDICT THE BEHAVIORS 'CAUSED' BY THEIR LAWS?

As a core task in development conditions, a drafter/bill-designer should use law instrumentally to transform existing, dysfunctional institutions.  Arising from the fiduciary obligation competently to serve the drafter's client/policy-maker, a drafter has a professional, ethical responsibility to draft bills that, when enacted and implemented, work   The loss of the Fatal Race testifies to the drafters' repeated failures to live up to that ethical imperative. This Part's Section A describes some academics' explanations that the instrumental use of law to attain development goals never had any possibility of working.  Sections B and C suggest alternative hypotheses to explain their failures.

A. Does instrumentalism prove inherently incapable of producing legislation that works?

As its basic thrust, ILTAM aims to guide drafters in designing laws as government's primary tool for facilitating social change.   Many, perhaps most legal academics, strongly object to that project. Putting to one side instrumentalism in adjudication, here we focus only objections raised to instrumentalism in legislation.⁴¹

1. The naysayers considered 
   Arguments abound denying the possibility or the desirability of instrumentalism in legislating.⁴²  Vermeule defines the instrumentalism of interest here as 'designed law,' that is, "legal rules that are produced by the deliberate or willful engineering of some official or set of officials."⁴³  Tamanaha declares that 'designed law' frankly, openly, and in blatant disregard to much academic opinion, uses legislation "as a means to an end."⁴⁴  
   
   Many scholars deny that government either can or should use law for instrumental purposes.⁴⁵  Some place their reliance on an ideal 'free market' economy.⁴⁶ A number of sociologists use alternate routes to reach the same conclusion.⁴⁷  For different reasons, other academics, too, condemn the very idea of using legislation instrumentally.⁴⁸
   
   Some, citing the Nazi or the Soviet experience, object that the use of law for purely instrumental reasons may foster emergence of an authoritarian state.⁴⁹  Yet, while one polity may use the law to carry out a new Holocaust, another may use it for benign purposes – for example, to establish a minimum wage or social security, or to protect children against exploitation.
   
   Others maintain that the law remains 'unimportant.'   For some, only the 'policy' that a law purports to serve merits our interest. (Who cares if someone drives an automobile while drunk?  Whether an accident ensues constitutes the issue of importance, not whether before driving home a driver had a tot too many.⁵⁰)  Reaching the same result by a different route, many writers view law as always playing 'catch-up' with society:  Society changes, and law changes to express its new social relationships.⁵¹ Law emerges from society's very matrix.  The epiphenomenon of a society cannot shape the very society that generates it.  All these authors end by denigrating law's utility as an instrument of deliberate social change.⁵²
   
   Their reasoning varies.  Everywhere, however much the naysayers crowd the legal commentariat, they err.
2. The nay-sayers refuted
   Against the nay-sayers, a growing cluster of jurisprudential and sociological theorists have marshaled arguments to support the instrumental use of legislation.  The American legal realists patently believed firmly that legislation has its social consequences.  So did the sociologists of law. A sociologist, Roger Cotterell, sums up the case:
   
   "As long as law is seen as an aspect of society – a certain side of social life as a whole – there can be no possibility of it 'standing apart' in some way and 'acting upon' society.
   
   "But when law is seen as no more than an instrument of state power, as it has almost invariably been seen in contemporary Western societies, it is thought of as independent of other aspects of social regulation.  It is no longer considered to derive its effectiveness from its congruence with popular mores but from the concentration of political power which the state represents....To legislators and ordinary citizens alike law appears increasingly as a purely technical regulation, much of it lacking any clear moral content.....
   
   "As technical regulation, however, it appears to be available for any regulatory purpose.  Its freeing from whatever community roots it may have possessed is paralleled by its liberation as a mechanism of purposeful government.  Modern law is thus the instrument of the modern state."⁵³
   
   In so holding, the realists aligned jurisprudential theory with the evidence. Available evidence clearly demonstrates that the naysayers err.  In some cases, the law clearly causes changed behaviors. But for the law, nobody would pay taxes.  But for the law, an election becomes impossible. At least in these cases, law does induce conforming behaviors.  As Karl Popper argued, one instance falsifying a proposition overcomes a thousand in favor.⁵⁴  Law can work instrumentally.
   
   Moreover, the claim that the drafter ought not to use law instrumentally also falls. But for the law, we would still have chattel slavery.  But for the law and the Department of Weights and Measures created by it, motorists would have no assurance that what they pump into their cars – and paid for – truly amounted to 11.6 gallons of 80 octane gasoline.   Without a well-designed Food and Drug Administration law, experience demonstrates the dangers confronting consumers who eat foods or use pharmaceuticals produced under unsupervised circumstances.  The list goes on and on…..
   
   Anti-instrumentalism destroys the very raison d'etre for legislation.  The American legal realist school of jurisprudence taught unapologetically that society ought to use legislation to achieve appropriate social objectives, that is, instrumentally.  As earlier adumbrated, the Realist school taught that law prescribes behaviors.⁵⁵  Why bother to write a law unless one does so to instate desired, new behaviors?  Why instate new behaviors save for dissatisfaction with the existing ones?  In the teachings of American legal realists, as in the sociology of law, ILTAM finds strong support for its central thesis: That legislation constitutes government's tool for inducing desired behaviors. Not only can law-makers use law instrumentally, but they should so use it as government's primary instrument for resolving social problems like the difficulties East Africans confront in trying to access affordable medicines and adequate health care. 
   
   Most of the egregious misuses of instrumental law constitute instances of what Van Aekan dubs 'naïve' instrumentalism, i.e., the use of law to bring about social change that impliedly or explicitly assumes (a) that the law-giver is autonomous and free to act as he (supreme lawgivers rarely follow the female persuasion!) chooses; that the addressee of the new law will receive it as the law-maker intended, without interference; and that the addressee of the law will unfailingly obey its mandate to the letter.⁵⁶  These assumptions all err. Nevertheless, the 'naïve instrumentalists' adhere to them. Why did drafters so frequently so behave?

B. Why do drafters fail to design transformatory legislation that works?

Drafters may fail in their bill-designer roles for a variety of reasons.  Most new governors mistakenly assume that lawyers have the necessary skills. (After all, they spent years in law schools.  They must have learned how to draft laws!)   That assumption ignores the reality:  Almost everywhere, law schools teach lawyers how to take their clients by the hand through the forest of existing laws to enable them to emerge safely – and profitably – on the other side. Almost never do law schools train future lawyers to design new laws likely to transform the historically shaped institutions that perpetuate the status quo. Most drafters learn their 'bill-designer' role 'on the job', from other drafters equally without formal training in the art.

If one does travel to the legal academy for advice about drafting, one finds a remarkably dry well.  Idealizing the lawyer's interaction with a judge, most academic lawyers see their task one of making rational arguments to rational decision-makers.⁵⁷  Legislation, most lawyers believe, take their substantive design in the rough and tumble of the legislature.  Many lawyers adopt the common belief that, in legislatures, not rational argument but power reigns.  Academic lawyers tend to leave the study of the problems of making legislation to the discipline of political science, a discipline that they assume studies power and its uses.  If a law school exceptionally offers a course in 'Legislative Drafting,' all but invariably it concerns only the scrivener's techniques.

Other factors conspire to ensure that few drafters design a bill's details competently.  A deep-seated tradition teaches drafters that they should not interfere with a bill's substantive content.  Most remain convinced that their job consists only of translating the clients 'policy' into 'legal' language.⁵⁸
 
Lacking trained capacity to design a bill competently, and in most cases socialized into believing that drafters ought not to concern themselves with a bill's substance, drafters nevertheless all but invariably finds themselves thrust into the bill-designer's role. The Minister instructs a drafter to draft a bill to reach a generalized end:  "Our policy is to ensure that every child attends not less than eight years of primary school," or that "every home will have potable running water available" (usually coupled with the injunction "to have the bill on my desk by Monday.") Willy nilly, circumstances compel the drafter to design the bill's substantive detailed provisions.

What can the drafter do in such case? Innocent of legislative theory, most drafters adopt either of four 'fall-back' strategies:  (1) To copy a law from another country that purports to deal with a similar problem – ignoring the differences in country circumstances that produce the behaviors that contribute to the problem;⁵⁹ (2) to invite conflicting interest groups to bargain out the details of the proposed bill;⁶⁰ (3) to 'criminalize' and impose heavy punishments on those who behave in problematic ways; or (4) to draft in general terms that do little more than repeat the generalities of most policy statements ("Let there be no more corruption"). 

Only serendipitously do these fall-back strategies produce legislation that works. None of them require the drafter to examine in detail the evidence as to the circumstances in which the new law will function.  Yet without the necessary evidence, the drafter has no basis for predicting the behaviors the new law will induce.  Unable to make a prediction grounded on logically organized facts, the drafter has no basis for designing a bill's detailed provisions.

Each of the four fall-back strategies suffers additional weaknesses. Copying law frequently leads to ludicrous results. For example, for export to their colonies (including those in sub-Saharan Africa), colonial drafters in London codified the common law of crimes as it applied in the United Kingdom.  They included provisions from the Black Acts of 1735.  These aimed at reducing poaching in the King's Forests. The poachers frequently put charcoal on their faces to avoid gleaming in the moonlight.  The codes promulgated in Britain's African colonies therefore copied a provision from the Black Act that made it a capital offense to be found wandering about at night with intent to commit a felony – with a black face.

Inviting interest groups to bargain out their differences, without regard to local circumstances, inevitably may reflect, not necessarily a just outcome, but only a convenient one.  Too often, the 'convenient' outcome caters to the interests of power and wealth.

Criminalization constitutes seldom effectively changes the behaviors that contribute to social problems, at least when the outlawed behavior does not fall into one of the traditional categories of 'true' crime.⁶¹   Among those who study the effectiveness of criminal measures, many, perhaps most, have abandoned deterrence, i.e., the use of fear of penal sanction as an effective motivation to avoid criminal penalties.  Drafters, however, continue to criminalize unwanted behaviors.  For too many, criminalization becomes the instrument of choice.   

Finally, drafters frequently draft in broad, vague terms.  Inherently, these seem unlikely to induce transformatory behaviors.  Existing actors tend to have a mind set supportive of the way they do things now – frequently with precisely the behaviors that laws looking to transformation must change.  If a vaguely drafted law grants the relevant actors discretion to decide whether and how to 'behave' – frequently in ways that conform to their own mindsets, and too often in their own interest – leading, not to change, but  yet again to another loss in the Fatal Race.

Ignoring the drafters' bill-designer role, a strong belief remains that drafters ought not to influence a bill's substantive provisions, and entropic drafting methods: All combine persuade drafters to deny that they actually design bills.  More:  Most apparently strongly believe either they ought not or cannot successfully use law instrumentally to change institutions. 

C. Summary

The instrumental use of law does not state an impossible dream.  For it to function as law-makers dream, however, the drafter in her bill-designer role must follow a methodology that makes possible the prediction of the consequences of the bill.  ILTAM offers such a theory and methodology.

PART III
THE FOUNDATIONS OF INSTITUTIONAL LEGISLATIVE THEORY, METHODOLOGY (AND TECHNIQUES)

Institutionalist legislative theory and methodology (ILTAM) guided the authors represented in this book in gathering evidence on which to ground proposed legislation likely to help overcome the obstacles that hinder the East African member states' health care delivery systems.  Scholarship does not arise, as legend claims did Athene from the brain of Zeus, fully armed for the wars.  No more did ILTLAM spring up in vacuo.
 
The foundations that undergird institutionalist theory and methodology include legal realism's focus on the differences between the 'law-in-the-books' and law-in-action; Sociology of Law's emphasis on behaviors in the face of existing law; Kelson's insights into law-making and implementing institutions; and John Dewey's pragmatic problem-solving methodology.⁶²

A. Legal realism

Long ago, legal realists observed that the law-in-the-books seldom correspond with the law-in-action.  In the real world, social actors rarely behave completely in conformity with existing law's prescriptions. That raised the question: Why? Legal realists and sociologists alike suggest the answer lies in the circumstances in which social actors decide how to behave. That offers a critical starting point for developing a theory to guide legislative drafting:  Why, in the face of existing law, do social actors behave as they do?  Because a drafter must predict what behaviors new legislation will likely induce, institutionalist legislative drafting theory adopts this as the critical question a drafter must ask.  

B. Kelson's observation that to 'work' a law must address two sets of actors

The Austrian jurisprudent, Hans Kelson, introduced the notion that existing law almost always aims at two sets of actors.⁶³  The law targets one set, whose problematic behaviors constitute a specified social problem, whose behaviors the new law's prescriptions aim to change.  The law also targets a second set of actors, whom the law assigns to implement those prescriptions.  

C. Sociology of law

To develop predictions of behavior in response to the prescriptions, the drafter/bill-designer must discover the explanations (or 'causes') of the behaviors in the face of a rule of the law – the core problematic for both drafters and the sociology of law. Karl Barth remarked that the simplest model of society consists of people making choices⁶⁴ within the constraints and resources of their circumstances – their 'arenas of choice.'  Institutional legislative theory builds on that observation.

ILTAM incorporates Barth's insights and Kelson's analysis into a model of the relationship between the two sets of social actors whose behaviors a law prescribes (see Diagram 2.1 below).  The diagram denotes the two sets of actors, 'primary' and 'secondary' role occupants, because each plays a specific 'role'.⁶⁵

Diagram 2.1

Institutionalist legislative theory offers seven categories that, broadly conceived, purport to include all the possible interrelated causes of a role occupant's problematic behaviors.   Remembered by the mnemonic ROCCIPI,⁶⁶ these categories constitute a check list of categories of possible explanations (or 'causes') of relevant behaviors. 

The ROCCIPI categories serve two purposes:  developing explanations for behaviors in the face of existing law, and predicting those behaviors in the face of proposed law.  Attending to each of these categories in turn, for identified problematic behaviors, the drafter seeks plausible explanatory hypotheses arguably subsumed by the ROCCIPI category under consideration.  In so doing, these categories of the ROCCIPI agenda assist the drafter to direct a drafter/bill-designer to consider all the relevant objective and subjective causal factors that may explain the behaviors addressed.  That becomes the basis for formulating explanatory hypotheses for a set of role occupant's problematic behaviors.  Those 'educated guesses' guide drafters in gathering relevant evidence to demonstrate that their explanations prove consistent with the available facts.   Once the evidence seems, in that sense, to warrant their hypotheses, the drafters can design and draft logically possible legislative solutions, and predict the likelihood they will alter or eliminate the causes identified.  

If their explanatory hypotheses do not prove consistent with the available evidence, however, the drafters must revise them so that they do so prove.   Of necessity, the drafters must also revise their proposed legislative solution to ensure that, logically, it will likely 'work' to alter or eliminate the actual causes of existing problematic behaviors and induce new ones likely to help solve the targeted problem.

Conversely, in designing a bill, the drafter must predict how the new provisions will affect behavior.  For that prediction, a 'reverse ROCCIPI' proves useful. Here, the drafter proposes a tentative prescription, and then searches the ROCCIPI categories to discover plausible explanatory hypotheses to predict behaviors in the face of the new rule

D. John Dewey's pragmatic problem-solving methodology

Philosopher and educator John Dewey's problem-solving methodology constitutes the fourth scholarly source for institutionalist legislative drafting theory and methodology.   Dewey's approach qualitatively differs from what some call 'ends-means' methodologies.⁶⁷   These tend to emphasize that managers and policy-makers should ground the 'end' they seek to achieve – their 'vision' – on their values.  Adopting the positivists' 'fact-value dichotomy', they reject the possibility of using facts to assess whether a proposed solution seems likely to achieve their envisioned ends. ⁶⁸  

Adapted for law-making, these policy-makers simply specify the 'end' or 'goal' of a law they would like to see drafted, and leave it to the drafters to design the 'means' – that is, the law's detailed provisions to prescribe who shall, may, or may not do what to achieve that stated end.  The ends-means approach seems to underpin the commonly adopted drafting practice⁶⁹ of encouraging bargaining among interest groups; copying laws from elsewhere; or criminalizing unwanted behaviors.

In contrast, as an educator, Dewey emphasized the importance of engaging people in a learning-by-doing process of gathering and analyzing the available relevant evidence as to the nature and causes of the problem of concern.  Using explanations warranted by those facts, they should seek to design a solution that logically seems likely to alter or eliminate the targeted problem's causes. 

Institutionalist theory adapts Dewey's learning-by-doing process to the law-drafting process.  It employs a four-step, problem-solving methodology to guide drafters in designing laws likely to alter or eliminate the causes of specified problematic behaviors – by definition,⁷⁰ the institutions – that contribute to social problems like those that comprise East Africa's health crisis:

Step 1: Gather the available evidence as to the nature and scope of the specified social problem, and whose and what behaviors contribute to it.⁷¹  Specifically organize the evidence to describe the problematic behaviors of the relevant social actors' (both the primary role occupants and the relevant implementing agencies – sometimes called the 'secondary role occupants'. Those behaviors comprise the 'institutions' which, to help solve the social problem, the proposed law's detailed provisions must change.)

Step 2: Using the ROCCIPI agenda,⁷² formulate hypotheses as to the causes of each set of role occupants' problematic behaviors.  Using those hypotheses as guides, drafters should capture the relevant evidence needed to prove each one consistent with the available evidence.

Step 3: Design detailed provisions of the bill logically likely to alter or eliminate the causes of both the primary and secondary (implementing) role occupants' problematic behaviors in order to induce them to behave more appropriately.  Be sure to consider all the logically possible alternative legislative provisions, and chose those most likely to prove effectively implemented to help resolve the social problem in the most cost-effective way.  (In this step, the drafters must also provide the facts to demonstrate that detailed legislative solution's social and economic benefits will likely outweigh its social and economic costs.)
   
Step 4: Incorporate in the proposed law a monitoring and feedback mechanism to identify and resolve whatever new problems may emerge. This step proves essential, for two reasons.  First, the drafters may not have successfully gathered the evidence at earlier steps to justify their claim that the law constitutes 'evidence-based legislation' (at best, that task proves difficult)   Second, and perhaps more important, today's increasingly rapidly changing global realities inevitably give rise to new social problems. That reality underscores the necessity of institutionalizing and strengthening national capacities to redraft old laws and design new ones to make it more likely that relevant actors will behave in new ways likely to ameliorate newly emerging social problems.  Step 4 underscores the necessity for governments to institutionalize ongoing processes for training new cadres to work together in gathering and organizing the available facts in new research reports as quality controls to justify new rules.

1. Using legislative drafting techniques
   This resource book seeks to provide theoretical tools and facts to empower participants in a possible future East African legislative drafting workshop to design laws that address East Africa's existing health crisis.  For that, the participants need to learn how to employ legislative drafting techniques likely to ensure that a bill's detailed provisions prescribe the relevant role occupants' appropriate new behaviors clearly, unambiguously and precisely. The guidelines, prepared by Toby Dorsey for the African Parliamentary Knowledge Network (see www.APKN.org), aim to facilitate assessment of existing draft bills and, where appropriate, guide the process of drafting new ones. In addition, the 'B-Stream' manual, prepared for ICLAD's distance learning program (see www.ICLAD-law.org), and the Drafter's Manual offer a series of rules for drafting a bill's provisions.  These rules aim to ensure that the words of a bill inform role occupants, precisely, unambiguously, accessibly and in usable form, how they shall, may, or may not behave.
   
   This section briefly reviews two essential aspects of legislative drafting techniques:  (a) the importance of ensuring that a bill fits into a complete legislative scheme; and (b) using appropriate drafting techniques to make likely the effective implementation of the prescribed behaviors to resolve the targeted social problem.
2. Using RIC-D-FRETT to ensure a bill fits into an adequate legislative scheme
   A drafter must ensure that a proposed new law fits into a complete legislative scheme. Take, for example, the proposed law to establish an EAC Joint Registration Authority to register and license medicines and drugs for all EAC countries (see Chapter 4 below)   To accomplish that law's objectives will require more than the proposed law's detailed prescriptions – commands, permissions, prohibitions – to the role occupants (R) and the implementing agency (IA) the research report specifies.
   
   In two ways, institutionalist legislative theory's RIC-D-FRETT checklist may help design a bill.  First, it offers the drafter a guide in the process of going from a research report's descriptive sentences to a bill's prescriptive sentences – the commands, permissions and prohibitions that usually constitute some 95% of a bill's provisions.⁷³  In that sense, the RIC-D-FRETT checklist offers the drafter a guide for translating a report's descriptions into the bill's prescriptions
   
   Second, the RIC-D-FRETT checklist guides the drafter in making sure that the bill includes the provisions necessary to complete the legislative scheme required for the bill's effective implementation. The Joint Registration Authority bill, for example, prescribes the primary actors' and the Joint Registration Authority's appropriate behaviors.  Other actors – not explicitly mentioned in the new law, but essential to the proposed law's effective implementation – may include officials in institutions to help settle disputes likely to arise under the new law; make funds available for the Joint Registration Authority; formulate and implement detailed subordinate legislation (or regulations); and the like.  The drafter must turn her attention to each of these categories (see Box 2-1) to ensure that the proposed bill fits into a complete legislative scheme.
   
   BOX 2:1
   TRANSLATING A RESEARCH REPORT'S 'SOLUTION' INTO A BILL:
   THE RIC-D-FRETT CHECKLIST AS A GUIDE FOR DESIGNING A LEGISLATIVE SCHEME
   
   Using the RIC-D-FRETT checklist, the drafting team must ensure that a complete legislative scheme, involving additional institutions established under already-existing laws, will provide the essential supports the proposed legislation requires effectively to transform the problematic institutions involved. These may include:⁷⁴
   
   • *R:The primary role occupants whose behaviors the bill ultimately aims to change;
   • *I:The structure and procedures of the implementing agenc(ies) whose officials' behaviors the bill must change to facilitate and ensure that the primary role occupants behave as the bill prescribes;
   • *C:Conformity-inducing measures used by relevant implementing agencies.
   • *D:Dispute settlement mechanisms – a tribunal, an arbitration panel to resolve disagreements between agency officials, firms engaged in importing medicines, and customers; 
   • *F:Funds to finance the registration agency's ongoing work;
   • *R:The registration agency's power, using specified criteria and procedures; to formulate and implement rules in the form of subordinate legislation or administrative regulations;
   • *E:An ongoing evaluation process as required by the fourth step of legislative theory's problem-solving' methodology;
   • *T:Transitional measures to protect interests established under pre-existing laws;
   • *T:Technical provisions, e.g., specifying date when new law goes into effect.
3. Using legislative drafting techniques likely to ensure the bill's effective implementation
   A bill's form – the techniques, the very words, a drafter uses to draft it – inevitably affects the bill's substantive provisions.  The author-drafters, who drafted the bills in this resource book, aimed to use appropriate legislative drafting techniques to ensure that the form of the bill's detailed prescriptions unambiguously specify who shall, may, or may not do what to ensure effective implementation of the bill's provisions.  By the same token, those who read those bills (and accompanying research reports) should critically assess, not only the facts and logic that underpin the reports' substantive claims, but also the techniques the authors used to design and draft the bill.   Only if the bill prescribes clearly and unambiguously the behaviors it commands, permits or prohibits can a workshop participant – or any other reader, for that matter – predict what that role occupant will or will not do in the face of the bill.

PART IV
WHAT MEANS 'EVIDENCE-BASED LEGISLATION?

In the real world, none of the assumptions of naïve instrumentalism hold. No wonder that a law drafted using it as a drafting guide only serendipitously works.

To work, instrumentalism has to take the world as it actually exists.  A social problem consists of actors behaving in problematic, repetitive patterns – that is, their behaviors constitute problematic institutions.  ILTAM holds that people behave as they do because the constraints and resources of their surroundings – including what goes on in their heads – induced or compelled them so to act. 

Those constraints and resources of in an actor's surround in large part result from the behaviors of other actors within that surround.  Barth's model of behavior, sketched above, implies that to explain problematic behaviors, the instrumentalist law-maker must investigate and understand all these multifarious, interacting behaviors that constitute the throbbing, dynamic, interesting world.  Those patterns of behavior do not function in vacuo.  The drafter must discover in detail the constraints and resources in the surround that presently influence the actors of concern to produce the social problem addressed. 

Only then can the drafter consider available governmental resources that the new law can add to the mix.  Those resources considered in the light of existing constraints and resources in the arena within which the new law will function constitute what Roscoe Pound long ago famously labeled "the limits of law."⁷⁵  The sophisticated instrumentalist drafter discovers that the more one learns about how and why people behave as they do, the more the drafter learns about the competence of government measures, the smaller becomes the scope for meaningful governmental intervention.  In the bill-designer mode, the drafter needs not the heady, seemingly unbounded ambitions of the naive instrumentalist, but the cool calculation of the knowledgeable social engineer. Cool-headed social engineers may not attempt the sweeping law-induced changes so often attempted but failed by naïve instrumentalists.  Guided by ILTAM, that cool-headed social engineer/bill-designer may not aim so far but she does aim far more accurately.  She gets more done.

After instituting a new law and implementing it – that is, ex post – the drafter/designer can test whether the drafter in fact produced a 'good' law.  If that law induces its prescribed behaviors and if those behaviors ameliorate the perceived social problem – that is, if the new law works – the drafter/designer can justly assert that the law did prove itself.  (It rarely proves itself so simply. Even if overall the bill's designer believes that she would re-enact much the same law, invariably on second chance the drafter/designer discovers ways to improve the earlier version.)  At least in the sense of the suitability of the bill to achieve its instrumental objectives, evidence can demonstrate that the bill did or did not work. (The fact/value dichotomy true believers err.)

Before the enactment of the new law, and therefore before its implementation – that is, ex ante – the drafter can develop evidence on which to ground a prediction of the behaviors that the new law will likely induce, and their consequences for the social problem at issue.  Following ILTAM, the drafter has a measurable probability of actually predicting the behavioral consequences of proposed legislation.

Predictions, however, always have a probabilistic element.⁷⁶ The more the drafter bases her predictions on evidence, however, the more probable those predictions will approximate reality. 

ILTAM teaches that in all but trivial instances, a drafter should accompany a bill with a justification for the bill's substantive provisions.⁷⁷   Whether people obey legislation depends in some part on its legitimacy, that is, whether its addressees perceive it as a measure that the addressee ought to obey. 

To achieve legitimacy, the bill must meet the requirements of rationality.  That requires above all else that its proponents demonstrate that they ground its provisions on evidence.   Because the proponents must justify the proposed bill ex ante, they must, on the basis of evidence, predict the behaviors it will probably induce. The research report should describe the evidence upon which the drafter bases the prediction that the new legislation, once enacted, will work. That evidence the drafter discovers by using the ROCCIPI categories as a guide to formulating specific hypotheses explaining problematic behaviors, and then using the hypotheses thus generated as guides to finding relevant evidence. The drafter/bill-designer can then devise measures to address those causes of problematic behaviors. 

The more accurate, the more detailed the evidence on which the bill rests and that the research report recites, the higher the probability that the bill's measures will lead to changed behavior – that is, than the new law will work.  Thus does the quality of the research report define the quality of the bill it purports to justify.    

The more evidence about the causes of the problematic behaviors at issue, and the better the quality of that evidence, the higher the probability that the new law's measures will address those causes, and therefore the higher the probability that the bill will work. That is what we mean when we speak of evidence-based legislation.  ILTAM aims at facilitating the production of legislation thus grounded.

CONCLUSION

This chapter offered a brief explanation of the theory, methodology, and techniques required to produce evidence-based legislation, and a definition of 'evidence-based legislation.'  It first pointed out the important dual role of drafters in designing a bill's detailed provisions.  Too often, they design a bill that specifies the policy-makers' envisaged goal, but which, after enactment into law, remains unimplemented – at most a symbol of the policy makers' 'values.'  Very few lawyers ever have opportunity to draft transformatory laws of the kind required to alter or eliminate institutional obstacles like those that perpetuate East Africa's crisis in its health care delivery system.  To ensure that proposed, purportedly transformatory laws will work requires that they merit the title 'evidence-based.'

To draft evidence-based bills, a drafter requires two quite different capacities:  one, to conceptualize the detailed provisions of a bill likely to help resolve the social problem specified; the other to gather and organize the available evidence to demonstrate that the bill's provisions will likely induce their prescribed behaviors, and that those behaviors will likely ameliorate the targeted social problem.  For that, the drafter needs adequate training in legislative theory, methodology and techniques.

Each chapter of this draft resource book raises questions about how a drafter might design the detailed provisions of particular bills as part of a legislative program to improve East Africans' access to essential, affordable  medical care.  In doing so, it aims to offer insights into the potential of using theoretical and practical legislative drafting tools for designing and implementing evidence-based legislation to improve the quality of life for all East Africans.

This chapter has only briefly described the roots and some of the debates about the institutionalist legislative theory and methodology employed by the authors of the remaining chapters of this book.  Hopefully, in reading and discussing the book's remaining chapters, however, the workshop participants will explore and assess the available legislative theory and methodology, as well as techniques, as possible aids for designing appropriate regional health legislation.   

As a resource, this book aims to illustrate the problems and possibilities of using available evidence to design new laws' detailed provisions as possible elements of a legislative program for improving regional health care as called for by the East African Community Summit of June, 2007.  It is a preliminary step towards an evidence-based East African law of health care delivery.

[Note:  If the EAC workshop takes place, the workshop organizers will make every effort to revise the details of each chapter in this resource book to include the evidence and arguments introduced by the workshop participants.]

Chapter 1: EAC’s Health Crisis

Chapter 3: An East African... Chapter 3: An East African Community Health Commission