Better Regulation, Cost-Benefit Analysis and Evidence Based Legal Design: A Critical Inquiry

Policy makers are increasingly turning to behavioural economics to address complex policy challenges, such as improving education systems, increasing private savings, promoting energy and resource conservation, strengthening (cyber)security, combating climate change, and reducing corruption. This approach aims to implement evidence-based policies grounded in people’s actual behaviours and cognitive processes. Emphasis is placed on the importance of context for responsible and effective decision-making. It is considered essential to empirically study a wide range of individual and collective factors, taking into account the social, psychological, and economic influences on people’s thoughts and actions. This perspective is prevalent globally, as demonstrated by the activities of the World Bank and its Mind, Behaviour and Development Unit, the Organisation for Economic Cooperation and Development (OECD), and the Inter-American Development Bank. In the European context, the concept of Smart/Better Regulation has emerged as a mature product of this dominant trend and is gaining increasing importance. The objective of this chapter is to analyse the state of the art within the European context, with special consideration given to models derived from economic and organisational theory that have been applied to the so-called legislative cycle. The study aims to reflect on the communication methods employed in the context of Smart/Better Regulation and examines the symbolic, persuasive, and self-legitimising dimensions pursued institutionally through the innovative techniques of so-called legal design.