COST-BENEFITS ANALYSIS IN PUBLIC LAW

被引:0
|
作者
Dolzhikov, Aleksei, V [1 ]
机构
[1] St Petersburg Univ, Dept Constitut Law, 7-9 Univ Skaya Nab, St Petersburg 199034, Russia
来源
基金
俄罗斯科学基金会;
关键词
Constitutional adjudication; administrative litigation; proportionality principle; economic analysis of law; cost-benefits analysis; NECESSITY;
D O I
10.52468/2542-1514.2023.7(2).34-42
中图分类号
D9 [法律]; DF [法律];
学科分类号
0301 ;
摘要
The subject-matter of the research is economic analysis in public law. This method evalu-ates both costs and benefits of the regulatory measures. When assessing the alternatives, the judges in public litigation take into account their side effects. If an economically effec-tive alternative is found, it should be ensured that it imposes a minimal burden on the right -holder or the costs to third parties.The purpose of the research is to argue that the cost-benefits analysis should be limited primarily to the economic field. Otherwise, personal, political, and social rights can be con-ferred with the properties of goods (commodification).The methodology of research is based on approaches of school "law and economics". Eco-nomic analysis of law makes it possible to construct a scale of constitutional values, albeit not uncontroversial, but universal. This scale offers the important advantage of introducing proportionality for seemingly disparate individual freedoms and public interests. The intro-duction of material and financial scales, including compensation even for irreparable intan-gible goods, represents a better solution than the available alternatives.The main results of the research and the scope of their application. The above-mentioned method consists of assessing the costs and benefits both for the right-holders and for achieving the common good. It is necessary to analyse the costs and benefits of the chal-lenged legal provision to individuals. Then, the governmental costs incurred in using alter-native means should be reviewed. The public authorities should not incur excessive organisational or financial costs from a legal alternative that is humane to the individual. Due to the objective constraint on public resources, judges take into account future budg-etary expenditures.In constitutional adjudication and administrative litigation, cost-benefit analysis is most effec-tive in the economic sphere. It is easier to ensure the measurability of judicial review, usually in monetary or other material terms. The preparatory works, including the financial and eco-nomic justification of draft laws or regulations, may serve as an informational source in re-viewing the legislative provisions and administrative acts which entail material costs. The cost-benefit analysis is applicable to non-material sphere. Although such costs gener-ated by regulators are often difficult to assess in public law. A cost-benefit analysis is possi-ble even in the political sphere. At the same time the judges usually restrain itself from assessing the political expediency of legislative decisions and administrative actions. Conclusions. There is a danger of economic analysis being abused in public law. The disad-vantages of using this methodology include the possible devaluation of values which are essential for democracy. The abstract common good and reducing public expenditure will prevail over individual freedoms.
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页码:34 / 42
页数:9
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