There is a short overview of my PhD research' transitional context, aims, research questions, multidisciplinary theoretical approaches, some empirical findings, conclusions, and study proposals & policy recommendations for the future ...

1. AARE KASEMETS
Institutionalisation of Knowledge-Based Policy
Design and Better Regulation Principles in
Estonian Draft Legislation
18.12.2018
Supervisors:
Associated professor emeritus Henn Käärik
Professor emeritus Peeter Vihalemm

2. I. Kasemets, A. (2018). Institutionalisation of better regulation principles in Estonian draft legislation:
the rules of law-making, procedural democracy and political accountability between norms and facts -
The Theory and Practice of Legislation 6/1, 75-111.
II. Kasemets, A.; Talmar-Pere, A. (2014). Implementation of Better Regulation Mea-sures in the Internal
Security Draft Legislation: the case of Estonia - European Journal of Law Reform 16/1, 80-103.
III. Kasemets, A. (2012). The Long Transition to Good Governance: looking at some changes in the
Estonian governance regime and anti-corruption policy 1992–2012 – Proceedings of the Estonian
Academy of Security Sciences 11, 17-42.
IV. Michael, B.; Kasemets A. (2007). The Role of Initiative Design in Parliamentarian Anti-Corruption
Programmes – The Journal of Legislative Studies 13/2, 280-300.
V. Kasemets, A. (2003). Sociological and public opinion research as reflection for the parliament and
civil society - The 6th Conference of the European Sociological Association. ESA Publications, 536.
Full text of my doctoral research: https://dspace.ut.ee/handle/10062/62643 www.etis.ee
LIST OF ORIGINAL PUBLICATIONS

3. Due to multidisciplinary ‘academic competition’ around the policy- and law-making, there are a
myriad of definitions. My research is related to such terms as sociology of law, the rule of law,
discursive democracy, regulatory governance, better regulation, impact assessment, civic engagement,
control of corruption, etc (Ch. 3). When appropriate, I use the definitions agreed on by inter-
governmental organisations (OECD, EU, etc).
For instance, Better Regulation is an example of complex definitions including 7 sub-terms:
1) political commitmetnt on policy options;
2) regulatory impact assessment;
3) consultations;
4) simplification;
5) access;
6) supporting responsible structures;
7) effective implementation of regulation.*
*European Commission Mandelkern report, 2001.
DEFINITIONS
Regulatory Impact Assessment (RIA) means the
systematic process of identification and quantification of
economic, social and environmental impacts likely to
flow from adoption of a proposed regulation or a non-
regulatory policy option under consideration. May be
based on benefit-cost analysis, cost effectiveness
analysis, risk analysis, etc (OECD Sigma 2004).

4. Estonia returned to the Western world after the restoration of its independence in 1991 and
joined the EU in 2004 and the OECD in 2010. In this context, my research focuses on the
institutionalisation of the modern governance, the rule of law, freedom of information, and
better regulation principles in Estonian legislative policy and law-making (Studies I, II, V),
and in the social control of corruption and anti-corruption policy frameworks
INTRODUCTION: RESEARCH AREA & CONTEXT
(Studies III, IV).
My research provides some new theory-practice
links and empirical data reflecting the Estonian
transition from the post-Soviet governance regime
to liberal democracy regime in the EU.

5. to analyse the gap between the modern rule of law(-making) and the
social facts of rules recognition and better regulation,
to identify problems in the institutional preconditions and policy cycle,
and,
to provide some study proposals and public policy recommendations
for the knowledge-based and responsible legislative policy in Estonia.
THE AIM OF DOCTORAL RESEARCH is:

6. 1. Which theoretical frames offer more useable explanatory knowledge in Estonian context for
the analysis of tensions between the modern norms and social facts in the sociological studies
of law-making, institution-building and social control of corruption?
2. To what extent the ministries follow the rules of law-making in the mandatory categories of
social, economic, environmental, security etc impact assessment, research references, and
civic engagement?
3. What are the main problems in the institutional pre-conditions and design of policy cycles
which may support the deviation of officials from the rules of good law-making?
4. How the Estonian post-Soviet political elite succeeded in the institutionalisation of good
governance norms in such a short time (1992-2012), catching up many Western countries in
the rule of law, free press, control of corruption, etc global rankings?
CENTRAL RESEARCH QUESTIONS

7. The review of theories (Ch 3) includes the implications of
sociological theories of law, democracy, science, risk society and
social control, as well as the implications of realistic legisprudence,
institutional theory and political economy.
My theoretical research roadmap (Fig. 2) has 6 sub-chapters:
1. Sociology of law(-making), and the rules of law and recognition.
2. Sociology of discursive democracy and civic engagement.
3. Institutional theories and legislative institution-building.*
4. Regulatory governance, better regulation and impact assessment.
5. Risk society, internal security and social control of corruption.
6. The shift towards knowledge-based policy- and law-making.
Today, I will point out some aspects of institutional theories from
the sociology of law-making perspective.
THEORETICAL FRAMEWORK: MULTIDISCIPLINARITY

8. The sociology of law is ‘a science that investigates the human behaviour which is defined and
coordinated by law’ (Timasheff 1939). Many of my studies investigate the behaviour of law-makers.
My research is about institutionalisation of the rule of law, freedom of information, and discursive
democracy related equal treatment principles in the policy- and law-making, starting from fair RIA
information. In more general terms, my research is about the modernisation, rationalization and
democratisation of law-making in Estonian context.
THEORETICAL FRAMEWORK: SOCIOLOGY OF LAW & MODERNITY
..modernism:age & rise of
individualism, freedom and formal
equality based on the rule of law;
faith in inevitablesocial, scientific
and technologicalprogress,
rationalizationand
professionalization, a movement
toward capitalism and the market
economy, industrialization,
urbanizationand secularization,the
development of the nation-state,
representative democracy, public
education, etc. (Wiki & Foucault
1977).
Based on Parsons, Mungiu-
Pippidi defined
particularismas “a
deviation from the ethical
universalism norm of social
allocations (as defined by law,
rules and modern principles of
administrative impersonality,
impartiality and equality, as well
as by market relations) resulting
in private benefit not warranted
by merit” (2017: 5).

9. The question is why officials, who are obliged to know the rules of law-making (better
regulation), may be unaware or unwilling to follow them in the practice?
The analysis of institutional symbols, systems, structures and processes is linked.
THEORETICAL FRAMEWORK: INSTITUTIONALISATION

10. Institution building - the process of developing
knowledge-based, responsive, effective, inclusive and
accountable inter-ministerial legislative institutions
(e.g. symbolic & authority systems) and regulatory
management capacities (Studies I-V). The modern
legislative institutions are based on respect for human
rights, effective rule of law, and governance, incl.
individual & inter-organisational development (Ch. 3.3).
I argue that the better regulation measures (e.g. RIA)
are complementary preconditions for the modern
legislative institution building.
Analysing the OECD reports… why regulatory reforms
tend to fail, I compiled for civil servants' eLearning tool
a list of institutional preconditions for the knowledge-
based policy- and law-making (Figure 6).
THEORETICAL FRAMEWORK: INSTITUTION BUILDING

11. I designed four original methodologies for the measurement and interpretation of
changes in Estonian legislative institutions (Chs. 1 and 4):
a) a normative content analysis of explanatory memoranda of draft acts is in accordance with
parliamentary functions, the rules of law-making (e.g. impact assessment and civic engagement
guidelines), and the roles of parliamentary research services (Studies I-II);
b) a “better regulation barometer” questionnaire for the survey of officials is based on OECD reports
1995-2000, and tests the fulfilment of 12 institutional pre-conditions for knowledge-based and
purposeful regulatory reforms (Study I);
c) a multiple methods based approach to analyse the better regulation’ link between the strategies
of legislative policy, and the internal security policy (Study II).
d) a concept of parliamentary sociological surveys connecting the theories of democracy, parlia-
mentary functions (e.g. representation), and the representative sociological surveys (Study V);
While the scientific impact of Studies I, II and V is related to the design of methodologies, the added
value of Study III is the testing of a control of corruption equilibrium model in Estonian context.
METHODOLOGIES AND DATA

12. METHODOLOGIES AND DATA
My Studies I and II involve a ‘multiple method’ methodology based on 4 stages:
a) a problem definition based on the literature and my previous studies,
b) a content analysis of documents (draft acts, policy strategies),
c) an e-survey of civil servants in the ministries, and
d) the use of other relevant studies in the discussion of the findings.
Study I (2018) was planned as an
integrating study of my doctoral
research. It is an elaboration of former
articles (e.g. Studies II-V) providing the
context, complementary theoretical concepts
and two empirical studies focusing on the
institutionalisation of better regulation
measures in the Estonian legislative policy in
2007-2017 (see Table 3: A, B, C, D, & E).

13. My work provides some new information regarding theoretical and methodological
literature, and also empirical findings in the field of sociology of law(-making):
➢ Studies I and II show the empirical changes in the institutionalisation of EU/EE modern
better regulation measures in the law-making of Estonian ministries (next).
➢ Studies III and IV are focused on Estonian and international changes in the social control
of corruption dimensions, and the political economy of anti-corruption legislation.
➢ Study V provides an original concept of parliamentary sociological studies and informed
communicative action, showing how representative sociological surveys can decrease the
deficit in democracy between general elections, and support the fulfilment of
parliamentary constitutional functions (e.g. representation, legislation).
DISCUSSION OF FINDINGS

14. Institutionalisation of the rules of law-
making in the impact assessment,
research references, civic engagement.
Study I confirms: the „Development
Plan for Legislative Policy until 2018“,
measures have a positive impact on the
ministerial work routines, which is
„materialized“ in the content of
explanatory memoranda of draft acts.
Positive trends: The Cabinet’ average
level of compliance with the better
regulation related law-making
requirements rised 18%.* The gap
between law-making norms and facts
decreased in the ministries (Ch. 5).
FINDINGS 1: GAP BETWEEN LEGISLATIVE NORMS & FACTS
0
20
40
60
80
100
Compliancewithlaw-makingrequirements,%
Categories of information
The normative content analysis of explanatory memoranda of draft
Acts in the categories of impact assessment (1-6), research references
(7) and the involvement of public (8) & civic / business sectors (9)
2007-2009
2012-2013
2014-2015
A.Kasemets
NORM =100%

15. The eSurvey data (2011 / 2015) show the positive trend in most institutional
preconditions for knowledge-based policy-/law-making (Table 4), but in my opinion,
Estonian better regulation system as a whole is far from stable and sustainable. There
are primarily three reasons for this:
1) the fulfilment of 11 preconditions out of 12 falls under 50% (Only the precondition
“Legal basis..” was assessed at over 65%; the others 11 preconditions are 40% or less);
2) the extent of institutional preconditions dependent on the will of politicians has
increased (5 preconditions from 12, e.g. No. 1, 4, 5, 8 and 12).
3) the most problematic preconditions are: the coordination of policy design between
the ministries (No. 3), strategies for information gathering (No. 6), involvement and use
of scientific expertise (No. 7), oversight system (No. 11), and sanctions to protect the
legitimacy of law-making (No. 12).
FINDINGS 2: PROBLEMS IN INSTITUTIONAL PRECONDITIONS

16. Figure 9 is based on the synthesis of Studies I-V. Some
examples of problems in different stages of policy cycle:
A. Planning: weak knowledge and skills on the
multidisciplinary RIA > weak task-setting by managers and
analysis of problems; non-systematic use of public data
and scientific expertise.
C. Legitimisation: poor social, economic, security,
environmental, organisational etc ex ante RIA; rare
references to EU RIA-reports; too legalistic oversight.
F. Learning: the absence of ex-post RIA reports; rare cost-
benefit analyses; lack of data on stakeholders experience
(policy output) & sociological reflection; > lack of
preconditions for the informed policy learning.
FINDINGS 3: PROBLEMS IN REGULATORY POLICY CYCLE

17. I analysed from theoretical and empirical perspectives the gap between the modern rule of
law and social facts about rules recognition and better regulation. I also identified the
problems of Estonian reg. governance according to the institutional preconditions, policy
cycle stages, and control of corruption dimensions (Chs. 2-5).
To sum up, the integrated analysis of theoretical and empirical findings in Studies I-V
added new analytical knowledge. This doctoral research is an elaboration of earlier
studies in terms of theoretical approaches, relations between theoretical and empirical
findings, and the interpretation of earlier empirical data.
Based on this fresh knowledge, I will offer four conclusions (Ch. 6), which are structured
according to the four central research questions (Ch. 1).
MAIN CONCLUSIONS

18. The theoretical pluralism reflects the complexity of political knowledge in the context of
interactive policy-/law-making, and the institutionalisation of better regulation measures (e.g.
RIA) can be analysed from different perspectives.
• I agree that there is a tension between disciplinary and multidisciplinary socio-
legal research approaches. We need good “disciplinary“ data, however, complex
parliamentary policy/law cases require more solution-oriented inter- and multi-
disciplinary research, because the problems / solutions usually fall between the
disciplinary „boxes’.
The social, economic, environmental, security, etc. impact assessments of the draft
acts form an interesting topic because they often involve problematic but necessary
mixes of different scientific disciplines (Studies I-II, IV, V).
CONCLUSION 1

19. My research provides some evidence as to what extent the modern rules of
law-making and “real production of laws” differ in observed better
regulation measures (Studies I, II, IV).
• The gap between the rules of law-making and the actual behaviour of
politicians and civil servants seems to me the most important problem
that hinders the rationalisation, democratisation and legitimisation of
Estonian law-making, and laws in social interaction.
CONCLUSION 2

20. CONCLUSION 3
• The institutionalisation of the OECD and EU good governance and better regulation
concepts into the relatively small Estonian governance system has been quite
successful.
Estonian strategy “Development Plan for Legislative Policy until 2018” (2011) completed
institution building in terms of symbolic systems (e.g. terms, aims and rules), and also
mostly in terms of authority systems and organisational structures (e.g. coordination,
guidelines, oversight).
• My research confirms that this legislative policy strategy has had a positive impact on
ministerial regulatory management routines, which is “materialised” in the content of
explanatory memoranda of draft acts.

21. • The success or failure of regulatory reforms in the fields of good governance and social
control of corruption / integrity (as a governance regime) depends to a great extent on
political leadership and both external and internal support or pressure by international
organisations and local academic and civic networks (social control).
The case of Estonia confirms that progress on good governance and control of corruption is
achieved by a change in the equilibrium involving all 4 dimensions, incl. both political &
material RESOURCES, and both regulatory & normative/social CONSTRAINTS, e.g. laws, RIA,
free media & civil society (Study III).
CONCLUSION 4
• In brief, despite of Estonian relatively high positions in global
good governance, the rule of law, free media, and control of
corruption rankings, the institution building for the knowledge-
based legislative policy, internal security policy, and anti-
corruption policy must go on.

22. Short forms of information transfer are popular.
The results of my open-ended studies I-V are expressed in my haiku …
SUMMARY: HAIKU
... the word is given
science-based law-making
must come, but not ...
... sõna on antud
teaduslik õigusloome
tulgu, aga ei ...

23. In my research I made 9 proposals for follow-up studies (Ch. 7.1). The first and
final of them are as following:
➢ There is a need for a constitutional analysis to clarify under which circumstances
the public information on Regulatory Impact Assessment (RIA), and its scientific
quality, could be interpreted as a citizens’ rights issue before the parliamentary
proceedings of draft acts.
In other words, what kind of legal guarantees should be in place to ensure citizens'
rights to fair socio-economic, environmental, administrative, etc public information?
➢An independent monitoring of the new strategy “Development of Legislative Policy
until 2030” implementation and evaluation could be initiated by academic
community.* * Academic=social control is in the public interest :)
STUDY PROPOSALS

24. Some policy recommendations for the Riigikogu, the Ministry of Justice, and other ministries:
➢the rise of awareness, responsibility & accountability of policy/law-makers is a key;
➢the involvement of scientists and stakeholders depends too much on political will;
➢ a whole-policy-cycle approach requires good coordination of better regulation measures,
incl. the systematic data collection strategies; I’m repeating the propsal that an inter-
ministerial Regulatory Impact Assessment Scrutiny Board could be established in co-op with
universities (see European Commission; Study I);
➢the oversight practice of draft acts is too legalistic, law-makers' professionalisation agenda
could include the analysis of intended social, economic, etc policy impacts;
➢finally, the professional knowledge and skills of officials dealing with regulatory policy should
be supported by both, higher education curricula and a governmental training system. Due
to complexity / multidisciplinarity problems in the policy analysis, and in public
communication, the training of networking capacities is very important.
POLICY RECOMMENDATIONS:

25. Aare Kasemets
Doctoral student in sociology
Institute of Social Studies
E-mail: aare.kasemets@ut.ee / aarekasemets@gmail.com
Skype: aare1skype
Thank you for your attention!

26. RIA seminars in the Riigikogu with OECD/EU: 1998 and 2001
Estonia joined to the OECD: 2010
Adoption of regulatory impact assessment (RIA) systems across OECD juridistictions 1974-2014
Sources: OECD 2014, http://www.oecd.org/regreform/regulatory-policy/ria.htm & A.Kasemets 1999a, 2001a, 2018
Estonia joined to the EU: 2004
Estonia joined to the ‘third
wave’ of OECD/EU countries
regulatory reforms
CONTEXT – CATCHING UP THE WEST

27. Since 1990-ties the hidden question of Estonian regulatory reforms and
better regulation measures was
„How to cut the developmental curve of Western & Nordic European
countries with limited human and financial resources?“
CONTEXT – CATCHING UP THE WEST 2
How academic & parliamentary research could support the modernization of law-making?
Its limited resources often place the parliamentary research services in the position of mediators of results
obtained by academic social scientists or by ministerial analysts. Many of my studies were designed to function as
a “mirror” for the parliament, reflecting the gap between constitutional legislative norms and the facts of absent
socio-legal analysis, to foster a broader political, academic and media discussion, to support the ‘social control’,
and to ‘put communicative power to work’
between the government, the parliament and the silent majority.

28. The eSurveys of civil servants, who are responsible for the regulatory impact assessment and draft legislation, show in many cases
the dissatisfaction with the political and administrative regulatory management, e.g. the task-setting in relations to the regulatory
impact assessment, the quality of civic engagement, etc. I have interpreted this argumented dissatisfaction and value conflic as a
readiness for the institutional changes (Studies I and II; Kasemets 2016a).
FINDINGS 4: DISSATISFACTION-BASED CHANGE MANAGEMENT

29. If we are hearing politicians speaking on good
governance, policy, law or administration …
… then we could ask every time in public (or in our mind), for
whom, how and to what extent the given policy, law and public
service is good = valuable and profitable?
• Individual persons?
• Families?
• Experts, emplyees?
• Top and middle managers?
• Owners?
• Industry? Shops? Banks?
• Non-profit Organistaions?
• Political Parties?
• Politicians? Civil servants?
• Ministries?
• Local Authorities?
• Child, adult or retired?
• Woman or men?
• Family with children or not?
• Relatively rich or pure?
• Living in city or in village?
• In own or in rent house/flat?
• Ethnic identity, language?
• With PC & internet or not?
• Educational level?IMPACT ANALYSIS HELPS TO BE HONEST

30. Knowledge-based public policy, better regulation and administration
(good governance) links
30
Good = knowledge-
based policy & RIA
Quality of legislation
(better regulation)
The quality of implementation
(good public administration)
Clear description of
strategic objectives
(desired impacts )
The legislative process is
transparent (incl. RIA,
involvement information)
Ensuring customer-centric
approach (focus: expectations,
needs, interests of groups)
S
O
CI
Honest evaluation of
problems and ex ante
analysis of regulatory
impacts (ex-ante)
The offered educational,
legal, administrative,
financial actions are
optimal
Indicators for measurement of a
legal act/service quality;
monitoring and ex post RIA
T
Y
L
Clear measurable impacts
description for those
affected by the policy (to
ensure stakeholder support)
Minimum expenditure (of
the State, LocGovs) for
citizens and businesses
Motivated and well trained staff.
Readiness for implementation of
public policies (incl. laws &
services).
IF
E
H.Brinkmann (EIPA 2008), adopted by A.Kasemets (Better regulation trainings, 2010+). Table 2 in my doctoral research 2018
?
?
?

31. The areas of mandatory regulatory impact assessment
1. Socio-demographic impacts, e.g. health, birth-rate, civil society, etc
2. Economic impacts, e.g. impact on consumers behaviour, small- and medium
size enterprises, IT, agriculture, competition, etc
3. Environmental impacts
4. Regional / territorial impacts
5. Impacts on internal security and cooperation with international organizations
6. Administrative impacts, e.g impact on human resource management and work
organization (state and local level)
7. Budgetary impacts (state & local municipalities level)
Sources: Estonian impact assessment rules & guidelines 1996, 2001, 2011, 2012; Kasemets 2000a, 2009, et al 2011, 2018

32. The outputs of regulatory impact assessment (RIA) information
and the re-use of RIA/policy analysis data in public communication :)
RIA information
(mandatory categories in EST):
+Socio-demograpfic;
+ Economic (e.g. CBA, SCM:
families, firms, NGOs);
+Environmental (e.g GPP);
+Regional / Territorial / Rural;
+ Security, safety, risks;
+Administrative (HRM);
+ Budgetary (public sector:
state/local).
A.Kasemets 2011, 2018
1. Ex ante RIA report on draft policy/act
2. Memo to the top managers of Ministry,
Minister, Parliamentary committee, etc
3. Planning of consultation, PR/media
4. Public intention of a draft policy, act etc
(e.g. additional RIA plan, if needed)
5. Ministry: Report to the Cabinet
6. The explanatory memoranda of draft
strategy / act / programme, etc
7. Communication: website, press, etc
8. Cabinet: Report to the Parliament
9. Parliamentary committee: reports, etc.
10+ Media+ NGOs+ Courts+ expost RIA