The Use of Impact Assessments and the Quality of Legislation

In the instrumentalist concept of law, the main function of legislation is the realisation of policy aims. This concept of legal instrumentalism seems to be the predominant view as adopted by policy makers and, accordingly, many believe that legislation is indeed just one of the tools for realising public policy aims. In that perspective, ex-post or ex-ante impact assessments are predominantly being used to assess the desired impact of legislation on society. The focus on the function of law as a mechanism through which public policy is to be enforced on society, however, can lead to the notion that this is the most important function of law, and that the quality of legislation is best to be determined in terms of its compliance with these policy aims. In relation to this, the question arises: can the quality and desirability of legislation be primarily determined by its ability to achieve a public policy aim or should other factors be taken into account as well? The answer to this question depends on which types of functions one attributes to legislation.It is the main aim of this article to analyze the different functions of law in relation to social problem solving. It is argued that most impact assessments provide a rather limited view on the quality of legislation in the sense that they often only assess legislation in terms of it being able to realise policy objectives. Although this undoubtedly enhances the effectiveness of legislation in terms of realising these objectives, the effectiveness of legislation in the light of the other functions of law potentially decreases. This can be illustrated by recently enacted legislation based on impact assessments