The Whys and Woes of Experimental Legislation

Abstract

Experimentation has been regarded as an essential element of the learning process and a source of valuable evidence in natural and social sciences. This perception has not been fully accepted by law, which has been skeptical not only of experiments with legislation but also of most forms of incorporation of evidence in the lawmaking process. However, the growing demand for a better interaction between the rapidly changing society and law appears to favour a broader employment of evidence-based lawmaking instruments. Experimental laws and regulations enable legislators to gather important information regarding the nature of the underlying problem, and test the effectiveness of new legal rules on a small-scale basis for a period of time determined beforehand. In this article, I argue that experimental legislation should be part of legislators’ daily toolbox and I provide an overview of the different advantages of this legislative instrument. Nonetheless, there are not only ‘whys’ but also ‘woes’ in the life of the ‘experimenting legislator’. A number of political and legal objections have been raised against a broader enactment of experimental legislation. In this article, I show both sides of experimental legislation and try to unravel the truth behind these objections.

Keywords: Experimental legislation, empiricism, fact-free legislation, evidence-based lawmaking, politics, better regulation, legal certainty, equal treatment.

JEL Classification: K20, K23, K40