Is Rules as Code easier to implement in Canada than in the US?

This is an idea that has come up in a few conversations over the last few weeks.

Legislative drafting in parliamentary democracies works differently than it does in the United States, for example. In a parliamentary democracy, the government, in the “executive branch” sense, remains the government because they have the “confidence” of the legislature, which is the legislative branch. “Confidence,” simplified, means that when the government puts forward something it wants to enact as a law, the legislature adopts it.

As a result, there are very few legislative drafting decisions that are made by politicians. The opportunity to amend things in the course of legislative proceedings exists, and it happens, but by far the majority of things that are passed were written by professional drafters employed by the government executive for the purpose of achieving some specific policy objectives, on timelines that were chosen by the government of the day.

The impression I have is that in the United States legislation is conceived of by legislators, the wording of it may be directly negotiated over by partisan representatives, the timelines for drafting tend to be shorter and less in the control of the sponsors, and it is drafted by legislators and their staffs.

I don’t know to what extent there is a permanent, professional, and independent public service legislative drafting staff inside the US congress. It’s not something I’ve heard of, but perhaps it exists.

Rules as Code (search #RulesAsCode on Twitter) is a movement that suggests that you can make it easier to implement new laws if they are drafted in a way that anticipates that they will be implemented by computers. It suggests that one way to draft them that way is to involve people who encode legislation in the drafting stage of the process. It also suggests that the effects of doing this are not only laws that are easier to implement, but objectively better-drafted laws. Rules as Code is not merely an implementation technique, it is an advanced drafting technique.

New Zealand, Australia, Canada, Jersey, and other commonwealth countries have public service members who are looking at this technology, now. The OECD’s Observatory of Public Sector Innovation has announced they will be writing a Rules as Code primer in 2020. But there has been less uptake in the US, as far as I know.

I wonder if that’s because there are more professional public legislative drafters in commonwealth parliamentary democracies, and fewer in republics with a more strict division of powers, like the United States.

To put a finer point on it, I wonder if in a country with a strict division of power between the legislative and executive branches, it is harder to motivate legislators to adopt techniques that are designed to facilitate implementation. Because legislators never feel the pain of implementation.

Something I’d be interested in learning.

Written by

Lawyer, Round Table Law; 2018/2019 ABA Innovation Fellow; Sessional Instructor, University of Alberta; Computational Law (Symbolic AI) Researcher, CCLaw @ SMU

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