EVALUATION OF LEGISLATION
Proceedings of the Council of Europe’s legal co-operation and assistance activities (2000-2001)
Analysis and prognosis of draft legislation as an instrument to improve the acceptance of norms
Mr Staffan MAGNUSSON
Judge of the Supreme Court of Sweden
One of the main functions of legislation is to set up norms for the citizens. Usually, laws also introduce sanctions which will apply if the norms are not observed. When it comes to criminal law, the typical sanction is penalty while, in civil and administrative law, there is a large variety of sanctions, such as invalidity of a transaction, damages, suspension of licences and administrative penalties.
It is obvious that the existing norms and standards in a society are not only due to written law provisions. Social life is founded on many other rules - written or unwritten - some of which may have a long tradition. In the legal field, the principle "pacta sunt servanda" - albeit reflected in modern law provisions - can be seen as a rule which has existed for a long time beside the laws and has been of fundamental importance.
Legislators as well as sociologists sometimes speak of public opinion (common morality). If such a thing exists - which has been much debated - there is reason to assume that it is to a large extent influenced by the existing legislation, including the sanctions stipulated therein. However, legislators themselves seem to acknowledge that public opinion is also due to other factors. Often, when a new law is introduced, a reference to public opinion is made in the law motives.
Ordinary citizens are not the only addressees of law provisions. Other important target groups are courts and administrative authorities. Courts obviously have an important function with regard to the application of sanctions. That goes for criminal, civil and administrative law. The application of administrative law is, however, to a large extent entrusted to administrative entities.
Courts and administrative authorities can also be seen as intermediaries between the legislator and the citizens. Among other things, they may play an important role when it comes to information about laws.
In this report, I will speak mainly about law provisions that are directed towards ordinary citizens. I will discuss to what extent such legislation is effective and accepted by the citizens and how the effectiveness and acceptance can be improved.
In the second chapter I will touch upon the question of how to measure the effectiveness of law provisions. After that, I will deal with questions concerning publicity and the language used in laws. I will also discuss the importance of severe sanctions and strict control as a method to improve the effectiveness of laws. The last chapter, before some final conclusions, will deal with the interrelation between law and public opinion.
2. Attempts to measure the effectiveness of laws
The question of the extent to which law provisions are followed has been much discussed by sociologists and criminologists. There seems to be a general understanding that, on the one hand, it is of great interest to study this question but, on the other hand, it is difficult to come to any definite and reliable results. It has been pointed out that, even if people's behaviour may change when a certain law is introduced, this may be due to a number of factors and not only to the new legislation.
As to the effects of criminal law, official statistics concerning the rate of crime are often used as a source of information. However, experts seem to agree that criminal statistics, in most cases, give an unsatisfactory picture of the existing criminality. The picture is often too optimistic. Especially with respect to certain types of crimes, such as sex crimes and assaults within families, there is reason to assume the existence of a great number of unreported cases. And the risk of detection is, in many cases, rather small.
In Sweden, extensive studies have been made concerning, inter alia, drunken driving and the effects of legislation in this field. One of these studies43, made in 1964, indicated that, in practice, drunken driving occurred ten times as often as was shown in the official criminal statistics.
Also with respect to civil and administrative law, it is difficult to measure the effects of legislation. Studies performed indicate that, even if a law is fairly well known among those concerned, the practical effects may be limited44.
In certain fields, where the application of laws is supervised by active and strong organisations and authorities, there is reason to assume that effectiveness of the laws is greater. The legislation concerning consumer protection and labour law can be mentioned as an example.
Adopted laws are normally published in official publications or journals (in Sweden in the Svensk Författningssamling). Among the subscribers to these publications are courts, administrative authorities and private lawyers. However, it can be assumed that such publications are not much read by ordinary citizens. Thus, other methods must be used in order to spread information on new legislation to this group.
Here the responsibility lies, in the first place, with the legislator, or the representatives of the legislator, such as the relevant ministry. When a new law has been adopted the ministry may, for instance, arrange press conferences and send out press releases. The ministry may also spread information by way of booklets and similar material. In recent years, the modern electronic information technology has opened new possibilities.
Courts and, even more, administrative bodies may also play an important role when it comes to information about legislation. Particularly in cases where an administrative authority is entrusted with the task of supervising the application of a law, it is natural that this authority also publishes written material in which the law is presented and commented upon. Private organizations, for instance trade unions and consumer associations, may play a similar role in their fields.
It is obvious that newspapers and other media are also of great importance in this context. Media may serve as valuable intermediaries between the legislator and the citizens both by spreading direct information about new legislation and by covering court cases and administrative matters. A problem is however that, when choosing what material shall be dealt with, the media may have other priorities than the legislator. With respect to new legislation, the media tend to take up such laws that are controversial. And as far as court cases are concerned, the media often focus on severe criminal cases or civil cases where celebrities are involved. Another problem is that the expertise needed in order to give correct information about a new law or an ongoing case is not always at hand.
As a Swedish example of successful publicity of a new law, there is reason to mention the law forbidding corporal punishment (spanking) of children which was introduced in Sweden in the 1970s. Under this law, corporal punishment was banned not only in schools and similar institutions but also within families. As soon as the law had been adopted by the Parliament, the Ministry of Justice sent out extensive information material, including press releases and booklets. The law was also much discussed in the newspapers and other media. It might be assumed that the public attention concerning the new law was to a great extent due to the fact that, at least at the outset, the law was rather controversial. The result was, however, that the law became very well known in a short time. Below, I will take up the question of whether the law was also accepted by public opinion.
It might be regarded as a self-evident principle that, to the extent that a law is directed towards ordinary citizens, the law shall be formulated so that citizens can, without too much difficulty, read and understand it. Everybody knows, however, that this is not always the case.
For a long period of time, in different countries, legislators did not seem to bother much about the need to write readable laws. Law provisions were written by legal experts who saw other legal experts, within courts and elsewhere, as the principal addressees. As a result, ordinary citizens were often unable to understand the laws without legal assistance. The language used in laws also got a bad reputation.
However, on this point the situation has changed. Attention has become more and more focused on the importance of formulating law provisions in a clear and simple way. To achieve this, linguistic experts are often consulted when a draft law is prepared. In Sweden, a system has been introduced which means to ensure that every draft law must be scrutinized by a special department within the Ministry of Justice, consisting of linguistic experts, before the draft is finalized and sent to the Parliament.
It is obvious that, even if the ideal would be that every citizen affected by a certain law should be able to read that law and foresee its consequences, such a goal cannot always be achieved. One problem is that the legislator cannot always avoid using technical terms and legal expressions. Another problem is that it is often difficult for the legislator to foresee all practical situations which might occur and formulate the law so that the situations are covered in detail. For this reason, the legislator often has to make use of general clauses and expressions such as "if there are special reasons …”. Such clauses and expressions make it harder for the citizens to foresee what will be consequences of the law.
However, even if the ideal situation can never be obtained, it is essential that the legislator, when drafting a law, does not forget the importance of making the text as easily accessible as possible. In this context, it should be pointed out that not only single words or expressions are of interest. It may be even more important to see to it that the law is structured in a way that makes it easy to survey. The legislator should, furthermore, not hesitate to insert headings preceding the various provisions.
5. Severe sanctions and strict control as a method to improve the effectiveness of laws
As stated above, laws setting up norms for the citizens normally contain sanctions which will come into play if the norms are not observed. It has even been argued that a norm cannot be introduced in a law if it is not accompanied by a sanction.
It should, however, be kept in mind that in modern legislation there is a large variety of sanctions. That goes not only for civil and administrative law but also for criminal law. It is true that criminal law is distinguished by the fact that the stipulated sanction is a penalty. But the classic forms of penalty – prison and fines – have been complemented by a number of alternative penalties, such as probation, community service and electronic supervision.
In Sweden, as in other countries, there is ongoing reform work aiming at decriminalizing certain acts and replacing penalties by administrative sanctions. And even if an act still constitutes a criminal offence, it may be sanctioned not only by a penalty but also by an administrative sanction such as, in the traffic field, suspension of the driving licence.
When discussing how to improve the effectiveness of criminal law, politicians often suggest that the sanctions stipulated should be made more severe. Such proposals are based on the assumption that sanctions have a strong general preventive effect and that, accordingly, an individual will abstain from committing a certain crime if the punishment is more severe.
Among criminologists, the predominant opinion seems to be that sanctions may have a general preventive effect but that it is very difficult, if not impossible, to measure such effects. There is, in any case, reason to assume that the effect of sanctions varies depending on what type of crime is at stake. It, thus, seems likely that a person considering an economic crime is more disposed to take into account what penalty may be imposed than a person committing a crime of violence. When it comes to crimes of violence, it has been said that the individual is often so "drunk, excited, frustrated, neurotic or unbalanced” that he is unable to see the risk of getting punished and the severity of the penalty as relevant factors.
As mentioned above, extensive studies have been performed in Sweden concerning drunken driving and the effects of legislation in this field. Among other things, attempts have been made in order to find out how car drivers rank the different sanctions in terms of severity and social consequences. According to a report published in 1972 (SOU 1972:2 part 3) the prevailing view among car drivers was that fines had no negative social consequences and that imprisonment had comparatively limited negative consequences. Suspension of the driving licence, however, had great negative consequences, many times greater than fines and especially more far-reaching than imprisonment.
The effects of criminal sanctions in terms of individual prevention have been studied extensively by the Swedish sociologist Ulla Bondeson. One of her conclusions is that prisons inevitably create prisonization processes and that the prison sub-cultures produce criminalization. Thus, in order to prevent recidivism, non-custodial sanctions should be used rather than imprisonment. Ulla Bondeson's studies also indicate that, contrary to what is assumed by many politicians, public opinion is not a hindrance to reforms in the criminal justice system45.
As is the case with criminal sanctions, it is hard to measure the general preventive effects of sanctions in the civil and administrative law field. Here, however, it might be assumed that people involved, natural as well as legal persons, often take into account the severity of possible sanctions. It should also be kept in mind that administrative penalties may be determined so that they amount to very considerable sums.
As stated above, studies performed indicate that car drivers often see suspension of the driving licence as a very severe sanction and that, accordingly, the risk of such suspension is a strong preventive factor when it comes to traffic crimes. There is reason to believe that the risk of getting a licence suspended is of a similar importance in other fields. The catering trade may be taken as an example. Committees studying this branch in Sweden have come to the conclusion that, in order to make restaurant owners pay taxes and other charges, the threat to suspend the restaurant's licence to serve alcohol is most effective.
It is often said that, in order to prevent people from committing crimes, the risk of detection is a more important factor than the severity of the punishment. This assumption seems to be confirmed by the Swedish studies concerning drunken driving. Also with respect to other types of crime, for instance tax crimes, studies indicate that the risk of detection plays an important role.
The conclusion of what has now been said is that, when introducing a new law containing norms and sanctions, the legislator must also see to that there is an efficient control system. Sometimes the best solution is to set up a new authority with the task of supervising the application of the law in question. In order to make the supervisory work efficient, the legislator has to make sure that the supervisory body has appropriate means of compulsion at its disposal.
As far as the effectiveness of criminal law is concerned, it is obviously of great importance that the police have adequate resources. However, on this point, as when it comes to the establishment of new supervisory authorities, the legislator might be faced with difficult, if not overwhelming, budgetary problems.
6. Law and public opinion
6.1. General remarks
An issue which has been much discussed is whether there should be a link between public opinion (common morality) and law. Should legislators take public opinion into account when creating or altering laws, or are they justified in ignoring such opinion?
It may be argued that, in a democratic society, legislators are under a duty to listen to "the voice of the people". If they do not, they run the risk of becoming ex-legislators. It has also been said that if a law is contrary to public standards, there is a risk that the law will be inefficient. The law may contain sanctions which will come into play if the law is not followed, but sanctions cannot function in the long run without a certain public acceptance.
The question, then, is what is meant by a "public" or "general” opinion and how can it be measured. Is an opinion "general" if it is supported by a majority of the adult population? Or should it be supported by two thirds or more? Perhaps the legislator should not try to establish what the "general” opinion is, but should be content with what can be regarded as the predominant opinion?
Another problem is that the attitude to a certain question may vary between different groups of citizens. And even if there is a widespread opinion, it may change rapidly from time to time.
In Sweden, as in other countries, the legislative process normally includes comprehensive investigative work. A proposed bill is often based on a report by a governmental committee, which may have been composed not only of legal experts but also of parliamentarians and other people representing the citizens. The committee may have made extensive inquiries, for instance, by sending out questionnaires and arranging oral hearings. When the committee report has been published it will in most cases be referred to a number of authorities and organizations for consideration before the government takes its position and prepares a bill for the Parliament.
When drafting a law, the government will thus often have a vast knowledge of attitudes among different groups of citizens. In most cases the information will, however, be confined to the opinions of experts and other persons having a special interest in the matter at stake. It cannot be taken for granted that these opinions will always reflect the more general attitude to a certain question.
The difficulty of ascertaining what is in fact the general public opinion is not the only problem in this context. Another problem is that, even if there is a manifest public opinion, it may be founded on a limited knowledge of relevant facts. It should also be kept in mind that many matters in today's society are complicated and call for a special competence or survey.
In view of what has been said above, it is obvious that legislation cannot be founded solely on what public opinion may be. It is inevitable that the legislator sometimes takes the lead and, rather than just taking into account what is the predominant attitude among citizens, tries to change it. One of the questions which then arises is, to what extent it is possible to change people's attitude by means of legislation.
6.2. Public opinion and criminal law
The interrelation between public opinion and law has, in the first place, been discussed with respect to criminal law. Here, there is reason to cite what was said in a report which was published in 1986 by a Swedish governmental committee with the task of reforming the Swedish penalty system. The committee stated that, when considering what the penalty for different kinds of crime should be, public opinion is of a fundamental importance. At the same time, the committee underlined that it is difficult to get a clear picture of what is in fact public opinion. For that reason, public opinion could only broadly form the base for legislation in the criminal law field.
In order to find out what might be the public attitude to certain questions in this field, the Swedish National Council for Crime Prevention initiated a study in 1994. The study included a questionnaire which was sent to a representative selection of the Swedish population, as well as to groups of judges, policemen and people from the prisons and probation administration.
The results of this study46 indicated that a common attitude, comprising 90 per cent or more of the population, could be obtained only when it comes to questions of a very fundamental and general nature, such as whether murder should be punishable. More than 80 per cent of the persons representing ordinary citizens expressed the opinion that relapsed criminals should be punished more severely than first time-criminals, while about 70 per cent thought that criminals committing crimes of violence should be kept in prison longer than those committing economic crimes.
As a whole, the opinions expressed by the group of ordinary citizens were rather blunt, without nuances. So, for instance, when stating what penalties were appropriate with respect to different crimes, the group of citizens did not seem to think that the age of the culprit was of much importance.
On several issues, the attitude among ordinary citizens was different from the opinions expressed by the group of judges. In general, the representatives of ordinary citizens were more in favour of long terms of imprisonment than the judges. This was the case with both crimes of violence and economic crimes. The idea of replacing prison by probation also got stronger support from the judges than from the ordinary citizens. On the other hand, ordinary citizens were much more in favour of, for instance, a plea bargaining system, meaning that a person who has been involved in a crime may get a less severe sentence if he co-operates with the police or the prosecutor. The group of citizens also had a less severe attitude than the judges concerning certain crimes, such as civil disobedience and peddling of liquor to young persons.
A conclusion which can be drawn from this study, and which is perhaps not very surprising, is that judges more readily accept new legislation and the ideas expressed therein.
When the interrelation between law and public opinion is discussed, certain types of crimes are often mentioned. Among these is drunken driving. It has been said that, when it comes to this type of crime, the legislator has taken the lead and demonstrated paternalism towards the citizens. By introducing severe penalties, the legislator has stressed the importance of road safety and pointed at the dangers connected with the use of alcohol among drivers. The question, then, is whether the legislator has managed to influence the common attitude concerning drunken driving.
The studies performed in Sweden indicate that the common opinion with respect to drunk driving has changed over the years. To what extent this is the result of the strict legislation in this field is, however, contested. There is reason to assume that other factors, such as the development of car traffic and the growing number of road accidents, have also played an important role.
In any case, a large majority of Swedish citizens nowadays seems to be in favour of severe legislation against drunken driving. There is even reason to assume that, in some respects, public opinion insists on more severe measures than the legislator. Thus, the study performed by the Swedish National Council for Crime Prevention indicated that many citizens are reluctant to support the idea that, in less severe cases of drunken driving, prison might be replaced by probation and other alternatives. On this point, there seems to be a difference not only between the attitude taken by the legislator and people in general but also between judges and ordinary citizens.
Another type of crime worth mentioning in this context is tax crime. Contrary to what might have been expected, the study just mentioned did not support the idea that strict legislation against tax fraud has a weak support among the general public. It is true that the group of citizens which were interviewed considered tax fraud as a less severe crime than embezzlement and similar economic crimes. But the difference was not very significant.
It is not clear to what extent the common attitude towards tax crimes is due to the fact that such crimes are punished severely – except for light cases, the normal punishment is prison. However, legislation has probably played a decisive role.
6.3. Public opinion and family law
Turning to the interrelation between public opinion and civil law, there is reason to focus on family law. In this field, the legislation concerning custody and treatment of children is of special interest.
As mentioned before, a ban on corporal punishment (spanking) of children was introduced in Sweden in the 1970's. When the idea of establishing such a norm was first presented, it was much criticized. Several groups argued that it was for the families themselves to decide how to bring up their children and that the legislator should not interfere. However, public opinion seems to have changed rather rapidly. In 1994, an inquiry was carried out which showed that more than 90 per cent of the persons interviewed were of the opinion that spanking of children should not be allowed.
The change of public attitude, as far as punishment of children is concerned, may be due not only to the legislation but also to other factors, such as the general debate on family matters and some much discussed cases concerning child abuse. It can, however, hardly be questioned that legislation in this field has had a great importance.
As for custody of children, Swedish law rules have continuously been changed during past years. The reform work has, among other things, concerned the question whether parents shall have a joint custody of their children after a divorce or separation. Legislation in this field is an example of cases where the legislator, in some respects, has tried to take public opinion into account. The present law on the custody of children is, however, to a large extent based on the views expressed by social experts. Thus, starting from such views, the legislator has taken the lead and attempted to influence common attitudes. Whether these attitudes have also been changed remains to be seen.
1. When a law has been adopted, the legislator should consider carefully how to spread information about the new law. It is for the relevant ministry to take the appropriate measures by, for instance, distributing press releases and booklets and arranging press conferences.
2. When drafting a law, the legislator should not forget the importance of making the text as clear and simple as possible. The assistance of linguistic experts will often be useful.
3. It cannot be taken for granted that, by introducing more severe sanctions, the legislator improves the effectiveness and acceptance of a law. However, it seems likely that severe sanctions have a general preventive effect, at least with respect to economic crimes and breaches of civil and administrative law.
4. It is important that, when introducing new norms and sanctions, the legislator also establishes efficient control systems, thus ensuring that the risk of detection cannot be neglected by the individuals in question.
5. When preparing a law, it will often be of value for the legislator to have a survey of the prevailing attitudes concerning the subject of the law, not only among experts but also among ordinary citizens. If a law is not in line with public opinion it may be difficult to get it accepted and followed. A problem is, however, that it may be difficult to get a clear picture of what public opinion is with respect to a certain question. It is also inevitable that the legislator sometimes takes the lead and, rather than just taking into account predominant public opinion, tries to change it. There are many examples indicating that it is not impossible to change people's attitude by means of legislation.
43 See Nordisk Tidsskrift for Kriminalvidenskab 1964, p. 119 f.
44 See Vilhelm Aubert, Inledning till rättssociologin, Stockholm 1980, p. 113 f.
45 See Ulla Bondeson, Global Trends in Corrections, International Annals of Criminology 1998.
46 See Hans-Gunnar Axberger, Det allmänna rättsmedvetandet, BRA-rapport 1996:1, Stockholm 1996.