ECPRD Seminar on Legal and Regulatory Impact Assessment of Legislation,
21-22 May 2001, Tallinn

----------

<<Contents

Dear conference organisers! I am very grateful that you found the opportunity to host a presentation on such a modern topic: legal and regulatory impact assessment of legislation. In fact, I was even surprised to be invited to give a talk, since I am not quite sure whether a representative of the legal profession would be the best person to hold a competent systemic discussion on today's subject. I am of the opinion (which I hope you will share) that law is the tool - or the means, if you will - by which and through which influence can be exerted. Admittedly, the authority of law, when compared to other means of influencing, is certainly increased by the fact that it constitutes a social regulator originating from the state and established by the authority of the state. Thus, the problem is far from being of a purely legal nature. Having said that, I am pleased to share with you some observations that are understandably centred on legal thought.

Integration into the European Union is mainly achieved by legal means. The Union, as is often noted in festival orations, represents a "law union", "une communaute du droit", "Rechtsgemeinschaft". Legal forms occupy centre stage in all manifestations of the EU's activities. For this reason, membership in the EU - its legal impact - radically differs from common activities undertaken in other international alliances.¹ The situation is made more difficult for Estonia - as well as for some other Eastern and Central European countries - by the fact that legal reforms started in the past years have not been brought to a conclusion yet. For instance, Estonia is still lacking a modern law of obligations, the State Liability Act has only just been passed, etc.

In today's talk, I would like to illuminate mainly the following problems associated with the legislation of Estonia as a candidate for EU membership:

• Law as a means for the development of the society and the state
  
• Formation of law and Estonian legal culture
  
• Needs for adapting to European legislation
  
• Some of the dangers associated with the integration of Estonia into the EU

In societies organised around states, topics concerned with legislation have been, are, and will always be, of current interest. Moreover, as social life becomes more sophisticated, so will the social processes increase in complexity. From the legal point of view this means a need for more complete legal solutions - solutions that would reflect the changed situation and therefore solve social problems. One can argue that one acute current concern in modern legal orders is the issue of the quality of a legal solution, its relation to social conditionality, and the effectiveness of a legal order. In light of the topic of the conference, I would like to point out that there is probably no such thing as a purely legal impact. Law as used by the state is a means by which and through which the state can communicate with all legal subjects, with the purpose of achieving a goal of a certain quality. I will rephrase it: some aspects of real life need to be "translated" into the language of law in order to reach a consequence of a certain quality - a legal consequence. Therefore, legislative activities cannot be pursued solely by lawyers. Professionals in a given sphere are also required whose suggestions must be translated into the language of law (legislation). Neither can law as a means of social regulation be taken out of the context of social, that is, normative regulation. As we know, different mechanisms of different quality exist for organising social life, but what distinguishes law from the others is the fact that the ultimate designer of the legal system is the state.

The state must contemplate on how the society will develop. An all-round development of the society depends directly on the successfulness of the co-operation between the social environment and the members of the society. Such success has its own guarantees, e.g. assisting in the creation of decent living conditions for all social groups, but also legislation, conformity with current laws, etc. Any anti-social behaviour is an indication of a defect in the reciprocal exchange between an individual and the social environment, and points to certain shortcomings and bottlenecks in the society, thus showing which aspects require more attention at a particular moment. Society's proneness to internal conflicts gives a strong clue that something has been missed, that something has not been accounted for.

J.J. Rousseau already made this remark: "In order to find the best social rules for a nation, a higher mind is called for that would see all human passions but try out none of them, that would retain no ties with our nature but have a thorough knowledge of this very nature." In his treatises, Rousseau also notes - and he could have meant it in today's context - that such a higher mind should be working in one century, and enjoy the fruit of its labours in another century.²

Estonia, in her pursuit to create a national legal order, has just stepped from one century to another, along with everybody else. Therefore, it is perhaps a good time to ask what is the situation with that so-called higher mind here in Estonia - a higher mind that, in the context of the conference's topic, can be tentatively taken to be embodied in the legislation, legal order, and legal system?

Amendment and improvement of created legislation is a complex process that requires constant readiness for providing answers to questions such as: How can one create an adequate law? How can one ensure the effectiveness of legislation? The answers are to be found primarily in the manner of creation (formation) of law. One deals with choices between several options, the outcomes of which will be seen further (sometimes a good deal further) down the time-line from the moment of deciding in favour of a particular manner of creation of law. We see that an option chosen today may be realised significantly later. This is a normal situation in legislation, since law must "produce" reliability and security not only for today but also for tomorrow.

Bridging this distance, i.e. realisation of a legal possibility, depends on a number of circumstances. In professional literature one can find, among others, such notions as the effect of certain regularities; existence of objective and subjective conditions; choice of a legal possibility that corresponds best to the actual needs.³ Essentially, it is about the ability to take into consideration very different influences. But not only that, itt is also about the willingness, and sometimes even courage, to see and consider different influences, which can perhaps be generalised as the ability, willingness and courage to predict the regulatory impact of legislation.

At a scientific conference dedicated to the 80th anniversary of the Estonian Ministry of Justice, it was noted that the aspiration of the Estonian state is to build a state and a modern legal system that would conform to European standards and ensure the functioning of the state as well as the realisation and protection of citizens' rights and freedoms. The design of a legal system need not be aimed at the achievement of the results of the pre-1940 system. The goal is development. This, however, raises the following question: if the goal is development, and we had to start in conditions requiring rapid establishment of a host of new laws for the independent country, what should form the basis for the construction of the legal system? This question was, and remains, of principal significance. Only solid and adequate starting points can provide a basis for the successful functioning of the legal order. Here it is worth reminding (maybe remembering would be better) that in 1991 the Supreme Council made a principal decision to base the legal system on the pre-1940 laws. The essence of that decision is that when choosing a model for the Estonian legal system, the example should be taken from the Central European legal model. Consequently, it has to be kept in mind - and in my opinion this has been done - that what is meant here is a new, modern way of constructing our legal system, which is based on legislative law and whose framework makes it possible and necessary to seek and find worthwhile examples from the legal orders of different European countries that are in turn rooted in the ideas of continental Europe's legal culture. At the previously mentioned conference - held already in 1998 - the former Minister of Justice remarked: "…one of the bases for our success has been the fact that we have always had a clear view of what we would like to achieve in our legislation."⁴ To put it another way, we saw even at the very beginning of our restored independence the goals that we would need to accomplish. But when defining the goals, we also saw possible problems or even dangers. We asked: what is our potential; how good are our analytical abilities for dealing efficiently with the many aspects characteristic of the development and impact of modern law? In countries with a relatively rapidly developing legal system, one of the dangers is that attempts will be made to adopt different examples from different locations where they may work well, but the end result of such behaviour is an internally discordant legal system that may not function properly. Naturally, our goal here in Estonia cannot be the creation of original law, but it must be equally clear that in the case of any adoption, example or model, the corresponding "raw material" that is taken as a basis must be subjected to analysis in order to determine to what extent a given solution suits our needs and what are the predictable impacts of such a solution.

The reality here in Estonia has shown that when designing a legal system, one must distinguish between three large domains within the sphere of law: private law, public law, and penal law. In the case of private law, we can speak of greater unification, possibilities for a more extensive harmonisation. As concerns public law, however, we must be more careful when applying the examples of other countries, since the so-called model for public law is provided by the Constitution of the Republic of Estonia.⁵ While the Constitution does not provide an explicit bases and boundaries for private law, it clearly establishes public law. Penal law is perhaps positioned somewhere between private law and public law. Plain adoption of generally accepted rules in penal law is apparently clearer and perhaps easier than, say, in constitutional or administrative law.

Dear colleagues, I emphasise that the question of which solutions are contained in laws is of paramount significance. Lawyers must know that the first attempt at taking over the colossus of European law - Corpus Juris Civilis, to use the words of R. David - failed because it was carried out in a mechanical way. It was attempted to incorporate a law that had been operative a long time ago, into a new temporal and spatial context. The second effort to receive Roman law was successful, after the once- effective law was properly studied, interpreted in the light of new social reality, and invested with a contemporary meaning.

As we see, the impact of legal regulations and its assessment in the context of European legal culture has a long and instructive history, and it would be a great mistake not to learn from it. I am pleased to note that although impact studies in Estonian legal circles are just taking the first significant steps, the work conducted is being supported by the state. I am referring to the relevant studies at Tartu University. Since 1996, in which the state has financed the research topic of Tartu University's Institute of Public Law, entitled "Reform of the Estonian national public legal order: conceptual starting positions, legislative acts, standards of interpretation, legal decision-making", and beginning this year state funding has been received for studying the only topic analogous to the previous one, "Realisation of the reform of Estonian public law in the context of the process of integration with the legal order of the European Union". This indicates that analysis of issues raised during the realisation of the reform of public law has become increasingly topical. Herein, a very important part is played by assessment of social background, that is, impact analysis, since this is the only way for delivering more complete future solutions. The modern way of perceiving law - a multi-level approach - tells us it is the reality, being relevant to law, that is the place for "supplying" raw material for theoretical concepts, which can then be implemented via legislation to become an immanent part of the legal reality.⁶

I would like to touch upon one more aspect of the central topic. In fact I have already made a reference to this aspect. I am talking about the process of integration with the legal order of the EU. It may be noted that, for instance, the EU membership of Finland resulted in the addition of about 40,000 printed pages of legislative documents to the country's legal order. Thus, the legislation of the EU always produces a certain intervention in the member state's internal legal order. It is no doubt a predominantly objective process, but along with positive effects, it can still have some negative consequences. Social conflict can manifest itself both at the micro- and macro-level. When it is based on a group from a particular social status, we can speak about a micro-level conflict. However, when observing a conflict between an individual and different societies, we are already dealing with a macro-level conflict.⁷ Therefore we, lawyers, cannot conceive that one can talk about the regulatory impact of law in a modern sense, without having a thorough knowledge of the scientific-practical experience of the EU and its member states. This must be done on the basis of three aspects. It is necessary to understand what is the extent to which the EU law unifies, harmonises, and co-ordinates. I will present some examples from public law. Until recently, subordination of things, objection, official endorsement of administration, time-limits in administrative proceedings, issues of state liability, etc., were not realised in the Estonian legal order by way of law as rules of order. Having considered the European experience and impact studies, we were confident that in order to ensure administrative capacity here in Estonia, the afore mentioned problems need to be solved by way of regulations on the level of laws. All of this attests to the fact that impact analysis is currently crossing - as it has in fact done for a long time - the relatively narrow boundaries of national legal orders and entering other national legal orders, as well as the supranational legal orders. Economists, for example, when speaking of the integration of Estonia into the EU and distinguishing three levels of approaches therein - the nominal, the real, and the institutional -, are even today pointing out that the key aspect of the negotiations with the EU is the ability of Estonia to avoid adopting provisions that would produce a rapid rise in prices and thereby reduce the country's competitiveness. Furthermore, economists predict that EU integration, focussing mainly on three sectors - environmental protection, the social sphere, and agriculture -, puts a heavy burden on Estonia by forcing her to bring legislation into conformity with EU requirements. Nevertheless, the government of Estonia has declared that the agricultural policy will be made to conform to the so-called Common Agricultural Policy (CAP) and associated policies - a decision that will precipitate a significant rise in domestic prices. In any case, economists recommend that the opportunity granted for transition periods should be taken very seriously in order to prevent a sudden shock.⁸

However, the abundance of problems should not make us take "time off", as some Estonian politicians and public figures have been proposing lately in their speeches and writings. We need to work on the problems in order to solve them! Time has never stopped and it will not stop now. In fact it is not possible to stop time, and therefore one must move along with it.

In young democracies, it is also rather important to note that the party who yields public authority (the state) can increase its power over the weaker party up to the point where real access to law is made impossible. Therefore, discussion on whether it is expedient in some circumstances to use the influence of law is certainly one of the possible aspects in dealing with today's problems. The circumstances referred to here are those where the regulatory impact of non-legal means can be more effective. It is no secret that sometimes it is the very availability of legal means which brings about social conflict. At the same time, we should keep in mind that recurrence of problems (conflicts) on the economic, political and national-cultural level have sometimes led to the abandonment of the means of legal regulation, while this "effort" costs more to the society than would have been the case with a legal solution. Thus impact analysis must inevitably include a legal-economic aspect.

In conclusion, I would like to remark that the regulatory impact assessment of legislation in Estonia is still in its initial phase. At the same time, its importance and significance is already being appreciated outside legal circles. The social mechanism for thecreation of law is complex and dynamic, including multiple aspects. I note with pleasure that the practice of impact assessment is a topical issue in the EU and in the candidate states. Despite the differences in assessment practices, a unification of the so-called good legislation has been achieved, and even certain standards have been established. I am convinced that RIA will reach the Riigikogu in Estonia in a more complex form, since it is already essentially contained in the rules of the Board of the Riigikogu.⁹

In the title of my presentation you will find the phrase "Estonian experience". It does not appear there by chance. Not because we have extensive positive practical experience to share with you, but first and foremost because a comparative experience is also an experience - the Estonian experience. This could apply to the structure of the impact analysed to date, the methods of RIA, etc.

I wish every success for the conference and a rapid application of the results in practice!

Literature

1. Endicott, T. A. O. Linguistic Indeterminacy. - Oxford Journal of Legal Studies, Vol. 19, No. 1, 1999, pp. 690.
   
2. Fish, S. Response. Interpretation Is Not a Theoretical Issue. - Yale J. L. & Human., Vol. 11, No. 2, Summer, 1999, pp. 514-515.
   
3. Jääskinen, N. Adapting to the European Legislation. General Observations and Finnish Experiences. Helsinki, 1996.
   
4. Kasemets, A. Informativeness of Explanatory Memoranda of Draft Legislation in the Spheres of Socio-Economic Impact, European Integration and Participatory Democracy. - Riigikogu Toimetised, 2000, 1, pp. 159-183.
   
5. Kaugia, S. On Social Conflict and Its Regulation. - Akadeemia, 2000, 7, pp. 1483-1504.
   
6. Narits, R. Comprehension of the Constitution (from the Communitarian Point of View). - Juridica International IV. Law Review University of Tartu. 1999, pp. 3-10.
   
7. Narits, R. Methodology of Law I. Õigusteabe AS Juura, Tallinn, 1997.
   Oviir, S. Thoughts on Parliamentarism, Democracy and Trends in the Riigikogu. - Riigikogu Toimetised, 2000, 2, pp. 13-22.
   
8. Rousseau, J.-J. Treatises. Moscow, 1969.
   
9. Turk, A. Law as a Weapon in Social Conflict. - The Sociology of Law: A Conflict Perspective. Eds. C. E. Reasons, R. M. Rich. Toronto: Butterworth, 1978.
   
10. Varblane, U. European Union Accession through Integration and Convergence. - Riigikogu Toimetised, 2000, 3 (to be published).
    
11. Varul, P. Reconstruction of Estonian Legal System. - Juridica, 1999, 1.

References:

1 J��skinen, N. Adapting to the European Legislation. General Observations and Finnish Experiences. Helsinki, 1996.
2 Rousseau, J.-J. Treatises. Moscow, 1969.
3 Endicott, T. A. O. Linguistic Indeterminacy. - Oxford Journal of Legal Studies. Vol. 19, No 1, 1999, p 690.
Fish, S. Response. Interpretation is not a Theoretical Issue. Yale J. L. & Human. Vol. 11, No 2, Summer 1999, pp 514-515.
4 Varul, P. Reconstruction of Estonian Legal System. - Juridica, 1999, 1.
5 Narits, R. Comprehension of the Constitution (from the Communitarian Point of View). - Juridica International IV. Law Review University of Tartu. 1999, pp. 3-10.
6 Narits, R. Methodology of Law I. Õigusteabe AS Juura, Tallinn, 1997.
7 Kaugia, S. On Social Conflict and Its Regulation. - Akadeemia, 2000, 7, pp 1483-1504.
Turk, A. Law as a Weapon in Social Conflict. - The Sociology of Law: A Conflict Perspective. Eds. C. E. Reasons, R. M. Rich. Toronto: Butterworth, 1978.
8 Varblane, U. European Union Accession through Integration and Convergence. - Riigikogu Toimetised, 2000, 3. Summary and figure in English: http://www.riigikogu.ee/rva/rito3/artiklid/49summary.htm
9 Kasemets, A. Informativeness of Explanatory Memoranda of Draft Legislation in the Spheres of Socio-Economic Impact, European Integration and Participatory Democracy. - Riigikogu Toimetised, 2000, 1, lk 159-183. Summary in English: http://www.riigikogu.ee/rva/rito1/artiklid/summary.htm#7-2