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Experimental Legislation

As the word ‘experimental’ indicates, experimental legislation suggests that new laws are tested.[1] Experimental legislation can be defined as laws or, in the majority of cases, regulations or dispositions that are enacted on an experimental basis in derogation of existing law for a fixed period. These ‘experimental rules’ are applicable to a limited group of citizens or a part of the jurisdiction which is selected on the grounds of objective criteria. The experiment is also subject to a periodic or final evaluation.

Like sunset clauses, experimental legislation is also characterized by a number of intrinsic elements. The first element of the definition of experimental legislation is its temporary character: an experimental law or regulation must have an ab initio limited duration. This essential element regarding the explicit duration of experimental dispositions does not appear to be contested in the Netherlands, Germany and in the United States. The duration and subsistence of a law beyond the original experimental period should be dependent on the attainment (or not) of the underlying objective of the experimental law.[2] If only mixed evidence has been gathered, it is reasonable to prolong the experiment for another period.

The second element is the derogation from existing law (rules or standards), which implies the observation of two requirements: first, there must be a statutory ground authorizing this derogation (principle of legality, see Chapter 3); and, secondly, it must be clear why this derogation through an experiment is necessary, meaning that the objective to be attained by the experiment must be clearly indicated.[3] Laws are often denominated ‘experimental’ because they introduce new rules in the legal order but no derogation occurs. In such cases, the essence of the idea of experimenting, which is to compare the results obtained in two groups - one submitted to the experimental regime and the other to the status quo - is to a great extent lost. Such laws can be qualified as ordinary temporary laws but they do not perform a serious experimental function, and the validity of the withdrawn lessons will necessarily be reduced.

The third element is the performance of an evaluation. The primary idea behind experimental legislation is to try out a new legal regime, see if it works, and learn from the positive and negative effects observed. The evaluation constitutes the opportunity to rethink the objective of the experiment. Legislators are then asked to decide whether the rules tried out can be extended to the rest of the population and consequently converted into general lasting rules.

A fourth and essential feature of experimental legislation is its limited scope of application. Experimental rules are only applicable to a part of the territory or to a group of citizens which are used as the ‘sample group’. This group should be representative of the rest of the population and be selected for the implementation of the experimental legal regime on the grounds of objective criteria. Objective criteria for the selection of the sample group are, for example, demographic or wealth factors. The results obtained here will be compared with the ones observed in the ‘control group’, in other words, the rest of the population. The participation in an experiment can, therefore, be compulsory to those living in the area selected by the legislator, but it can also be voluntary. Contrarily to scientific experiments, the ‘sample group’ is not always objectively or randomly chosen but instead participation can be voluntary. As described in example 2.4, this last situation can be found in the Netherlands.

EXAMPLE 2.4 INNOVATIVE KINDERGARTENS IN THE NETHERLANDS

An illustration is the 2012 temporary governmental decree enacting ‘an experiment in the context of innovative kindergartens’ (besluit experiment integraal dagarrangement).[4] This involved an experiment regarding an innovative concept of kindergarten where children were offered a ‘day arrangement’ consisting of a combination between child day care and primary school subjects. The objective of the experiment was to gather information on the added value of this form of childcare and its repercussions on the school performance of these children, satisfaction of parents with this system and the quality of the kindergartens. Arising from the specific regulation under analysis, this experiment was based on cooperation agreements between primary schools and kindergartens authorized by the Ministry of Social Affairs and Employment. This meant that the children benefiting from this experimental programme would be the ones attending the schools or kindergartens which had applied for this ‘day arrangement’ and been granted the required ministerial authorization. Fifteen cooperation agreements were signed and the experiment is ongoing. This was a case of voluntary participation of schools and kindergartens, submitted to a ministerial authorization, but not randomly chosen.

Example 2.4 illustrates that it is not always possible to comply with the ideal requirements of an experimental law stricto sensu. However, when this is possible, it is important to underline that for the sake of the validity of the results of the experiment, these criteria should be respected. As will later be demonstrated, the lack of a framework guiding legislators on the enactment of experimental laws may explain the imperfect design of many experiments. In Chapter 8, a number of guidelines on methodological considerations for a better design of experimental legislation are put forward.

In addition to experimental legislation stricto sensu, there is a wide array of other forms of legislative experimentation: while some simply translate multiple variations of the category ‘experimental legislation’, others do not deserve this qualification. In addition, experimental legislation may also be implemented at different organizational levels for specific purposes and involve policy phenomena such as policy experimentation and policy variation.

  • [1] Freund, Kommunale Standardoffnungs- und Experimentierklauseln imLichte der Verfassung, n. 64 above, 16.
  • [2] Carl Bohret and Werner Hugger, Test und Prufung von GesetzentwUrfen:Anleitungen zur Vorabkontrolle und Verbesserung von Rechtsvorschriften (CarlHeymanns Verlag, 1980) 51.
  • [3] Antonis Chanos, Moglichkeiten und Grenzen der Befristung parlament-arischer Gesetzgebung (Duncker and Humblot, 1999) 33-6.
  • [4] Besluit van 14 september 2012, houdende tijdelijke regels voor eenexperiment in het kader van innovatieve kinderopvang (Besluit experimentintegraal dagarrangement), Stb. 2012, 413.
 
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