On Law

The second lever of state

The first lever of state is the fist. Wrap it in a velvet glove and rest it on the table, it is still there. All other levers have that clenched fist as their fulcrum.

The second lever of state is regulation, the law. The law enshrines the will of the sovereign and conveys it into the material world. From it, all other aspects of government power and action emerge, including and especially the powers of taxation and expenditure.

And just as the fist is too important to be left solely in the care of soldiers and police officers, the law is too important to be left solely to lawyers and regulatory agents (and, indeed, legislators). And for similar reasons, in that these professionals bring an insider’s view of the thing. Their understanding is nuanced, deep and expert, but conditioned by and to ‘how things are done’.

In the end, law is just a tool of policy: a multifaceted and adaptable tool that is, in itself and in the rules that guide its use, meant to be configured and reconfigured as the demands of society require.

The original code

Laws are social software.

Laws establish default patterns of behaviour that motivate actors to undertake certain things in certain ways so that the sovereign is then able to direct its limited attention to other things. Laws are fit for a particular purpose at a particular time. Like software, laws are built of their own components and scaffolded by components located outside of them. Laws embody and solidify assumptions about the world, value-laden choices about objectives and acceptable conduct. The very way laws are written reflect deeply held attitudes about the framing and management of power.

Although each law is unique, tailored to its purpose, the constituent components can be expressed in generic terms, as figure 1 suggests.

Figure 1: the necessary components of a rule that is meant to be obeyed

The policy worker who wants to be credible in their role must strive to understand the complex system that is the body of laws governing their domain of responsibility. It is not enough to read an Act – although a surprising number of people seem to find even that to be too much to ask. It is certainly inadequate to read only the sections that immediately apply to an issue.

For any regulatory issue, an Act must be interrogated according to a schema, like that in figure 1, in order to understand the network of dependencies both within the piece of law and without.

For a policy person looking to have some basis of credibility in any discussion of a law, developing a strong familiarity with a flat, literal interpretation of the black letter law, how the pieces fit and work together, is absolutely essential. Knowing how the regulatory agencies read and apply it is essential, too. To rely on the – expensive and time-constrained – professional lawyers for this is the height of sloth. To rely on the regulator to reveal the truth from their point of view, in their own time, is fraught with risk.  

However, the older a piece of law is, and the more it taps into certain fundamental legal or constitutional requirements, or an accumulated body of case rulings and law, the more likely the letter of the law is conditioned by factors it is less likely the policy worker will be familiar with or have easy access to: convention, case law, and precedent. It is at this stage, having equipped themselves with a sound basic knowledge, that a policy person should reach out to their lawyers and regulatory practitioners for help.

Yet it is essential that this quest for advice not turn into some pilgrimage to an oracle. The policy person brings to these enquiries the knowledge of what impacts and outcomes are wanted and the associated rationales. The point of the discussion, therefore, is to explore and discover why these things are – or are not – happening. If the latter, it becomes a search for where in the law or its interpretation and application lies the source of trouble, and what methods or solution are needed, allowable and achievable.

Power games

The policy worker in any law reform occupies a coveted but vulnerable place in the centre of the process.

The vulnerability stems from the array of particular – some vested – interests and parties that surround the policy person: their own lawyers, their own senior managers, any regulatory or enforcement agencies, any affected and regulated parties, wider interest groups – both expert and otherwise, Ministers, and Members of Parliament. Almost all of these parties come into the discussion with a level of specific and deep knowledge and interest that the policy person – as a generalist and steward of a thinking process – will not necessarily own in matching degree, and may lack the legitimacy to present even if they do.

But the policy person needs to also remember that their position is coveted.

It is in the vulnerable central position that the diverse, often contested and contradictory views of the other parties are brought together, put into stark relief, and mediated.

Even more than Ministers, the policy person is responsible for holding onto the whole intent that the regulatory action or change is required to serve. The politics of pleasing a constituency is just one input. More than the regulator, the policy person is responsible for the effectiveness of the system. The accumulation of regulatory power is merely one possible input. More than the regulatee, the policy person is responsible for ensuring the impost is only that which is necessary and sufficient to deliver the policy intent. Minimising government intrusion is just one constraining principle.

Just as the policy person must do their own homework on the law and its legal framework, they must own the process of securing input to the policy review and design processes. This is not about securing power for its own sake: it is about securing power for the sake of a balanced process that delivers the whole outcome. No other party has this job.

Softly, softly catchee monkey

At a certain point in policy work the decision is made and you just have to get on and implement it. But if the implementation requires a significant amount of bespoke tailoring of the law, then this suggests that the policy is having to push very hard against the social and behavioural currents of the time. The chances of policy failure, of an ineffective and possibly counter-productive impact, are likely very high.

The best law goes virtually unnoticed – it works with the natural values and momentum in society to generate a significant amount of voluntary compliance. The worst law pushes against these tendencies and fails, often dramatically, and at cost to popular respect: if not for the law in general, then certainly for the legislators and enforcers whose names become associated with the problematic law in question. In between there is a spectrum of regulatory methods, ranging from a broad base of persuasive techniques up to application of the naked fist, a model familiar to many as the Ayres and Braithwaite compliance pyramid.

For all that working on law is hard work, this can hide the fact that using it is often a lazy option. The harder you have to work at getting it right, the more likely it is that you didn’t think enough at the front end about alternatives.

Thus, the good policy person does not rush to pick up the law. But when the law looks like a good option, they do not shy away from it either.

Because, in the end, law is just the continuation of policy by other means.