Evidence-based regulation and the translation from empirical data to normative choices: A proportionality test

Studies have shown that the effects of scientific research on
law and policy making are often fairly limited. Different reasons can be given for this: scientists are better at falsifying
hypothesis than at predicting the future, the outcomes of
academic research and empirical evidence can be inconclusive or even contradictory, the timing of the legislative cycle
and the production of research show mismatches, there can
be clashes between the political rationality and the economic or scientific rationality in the law making process et
cetera. There is one ‘wicked’ methodological problem,
though, that affects all regulatory policy making, namely:
the ‘jump’ from empirical facts (e.g. there are too few organ
donors in the Netherlands and the voluntary registration
system is not working) to normative recommendations of
what the law should regulate (e.g. we need to change the
default rule so that everybody in principle becomes an
organ donor unless one opts out). We are interested in how
this translation process takes place and whether it could
make a difference if the empirical research on which legislative drafts are build is more quantitative type of research or
more qualitative. That is why we have selected two cases in
which either type of research played a role during the drafting phase. We use the lens of the proportionality principle in
order to see how empirical data and scientific evidence are
used by legislative drafters to justify normative choices in
the design of new laws.