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An Enlightened Approach to Legislative Scrutiny: Focusing on Effectiveness

Effectiveness is now widely embraced as a measure of legislative quality by international and national lawmakers, and academic and professional drafters. However, it continues to remain abstract as a form of wish or intent, rather than a concrete, applied concept. When it comes to legislative scrutiny, effectiveness remains in the aether but its concrete application to legislative scrutiny (which, after all, is a mechanism set to measure the possible or post facto success of legislation) remains untold. The aim of this paper is to find and express the concrete mechanism of application of the concept of legislative effectiveness to preand post-legislative scrutiny. Legislative scrutiny here is used as a generic term, encompassing Thornton’s internal and external verification as the fifth stage of legislative drafting, evaluation ex ante via impact assessment or cost benefit analysis, and post legislative ad hoc or regular monitoring scrutiny exercises linked to sunset clauses or not. The hypothesis of this paper is that the effective legislative scrutiny requires holistic and individualised analysis of the particular legislative text that cannot be restricted into formalistic, pre-prepared, universally applied criteria expressed in multiple-choice or box-ticking styled model forms. In this sense, the paper departs from the trend of model forms (be they Impact Assessments forms, cost benefit analysis forms, or legislative effectiveness forms). The paper proposes that, not in their stead but perhaps in an overview of the existing scrutiny mechanisms, legislation is evaluated by means of individualised, concrete, measurable criteria that answer narratively a list of holistic questions focusing on preor post-legislative scrutiny. In order to prove this hypothesis, the paper begins with the definition of effectiveness. It continues to place effectiveness within the realm of phronesis and phronetic legislative drafting, thus explaining and proving its inherent fluidity. It identifies the elements of an