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RATIONAL LAWMAKING PROCEDURE AS THE BASIS FOR GOOD LAW

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Bierc A.

Studia Prawnicze

2005

issue 4(166)

5-29

The key to good law is rational lawmaking procedure, which would properly combine the requirements of communicative rationality, which assumes the need for a free and equal lawmaking discourse on the value of the law being made, with the requirements of instrumental rationality, favouring the efficiency and effectiveness of law. In connection therewith, this paper attempts to determine whether, and to what extent, the domestic lawmaking procedure conforms to the above-mentioned procedural standards. The author points out that the domestic lawmaking procedure does not fully conform to the requirements of procedural justice, and particularly the requirements to combine democratism and expertise (knowledge) in an effective way. This concerns above all the need to hold a public debate on the value of the law being made, systematically analyse legislation costs, carry out post-legislative research, and in particular - perform quality control of bills by experts. In the law establishment procedure, the mechanism of utilizing qualified knowledge does not function properly. It fails to make full use of analytical tools, which serve to compare social benefits and costs of the proposed prescriptive acts. Another weak point of the domestic law establishment procedure is the lack of a central, expert institution responsible for performing the quality control of bills, the competence of which could be compared to the responsibility of equivalent institutions in European countries.

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RATIONAL LAWMAKING PROCEDURE AS THE BASIS FOR GOOD LAW