Laws

Law is an important tool of modern government and the very basis of legal modes of governance (Ziller 2005). Several different types of laws exist, however. These include distinctions often drawn by legal scholars between private and public law; private civil or tort law and common law; public criminal and administrative law; and hybrids such as class action suits which combine features of public and private law. These different types of law vary substantially in terms of what kinds of situations they can be applied to, by whom and to what effect (Keyes 1996; Scheb and Scheb 2005).

All of these laws can be thought of as ‘regulations’ since all involve the creation of rules governing individual behaviour (Williamson 1975; 1996; Ostrom 1986). However, in the form it is usually discussed by policy scholars, ‘regulation’ is typically thought of as a form of public law; although even then it can also involve criminal and individual or civil actions (Kerwin 1994; 1999; West 2005).

Keyes (1996) has usefully described the six types of legal instruments which can be used by governments when they wish to invoke their authority to try to direct societal behaviour (see also Brandsen et al. 2006). These are shown in Table 6.1.

Table 6.1 Six types of legal instruments

1 Statutes

2 Delegated legislation between levels of government

3 Decisions of regulatory bodies and courts

4 Contracts or treaties

5 Quasi-legislation such as tax notices and interpretative bulletins

6 Reference documents such as background papers, other legislation, standing orders, etc.

Source: Keyes, J. M. 1996. ‘Power Tools: The Form and Function of Legal Instruments for Government Action’. Canadian Journal of Administrative Law and Practice 10: 133–74. .

While laws can prohibit or proscribe many kinds of behaviour (and encourage others either by implication or overtly), in order to move beyond the symbolic level, they all require a strong enforcement mechanism, which includes various forms of policing and the courts (Edelman 1964; 1988). And even here a considerable amount of variation and discretion is possible since inspections and policing can be more or less onerous and more or less frequent, can be oriented towards responding to complaints or actively looking for transgressions, and can be focused on punishment of transgressions or prevention, in the latter case often with a strong educational component designed to persuade citizens and others to adopt modes of behavour more congruent with government aims and objectives (McCubbins and Schwartz 1984; Hawkins and Thomas 1989; McCubbins and Lupia 1994; May and Winter 1999). A desire for 100 per cent compliance on the part of governments requires a high level of scrutiny and thus some kind of ongoing, institutionalized, regulatory presence within a government organization or agency: typically a line department such as a police department or administrative bureau with investigatory and policing powers.

All laws are intrusive and many are highly visible. A significant problem with the use of laws in policy designs, however, pertains to cost, automaticity and precision of targeting. With respect to the first two, while passage of a law is usually not all that costly, the need for enforcement is. Laws have a low degree of automaticity as they rely upon citizen’s goodwill and perceptions of legitimacy for them to be obeyed. Inevitably this will not ensure 100 per cent compliance and will thus require the establishment of an enforcement agency, such as the police, customs agencies, immigration patrols, coastguards and the courts. Precision of targeting is also an issue since most laws have general applicability and often cannot single out specific groups or targets for differential treatment. These problems have led to the use of alternate forms of regulation expected to reduce these costs and allow for improved targeting of specific actors.

 

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