"There Ought to Be a Law!" – Instrument Choice: An Overview of the Issues

1. Introduction

Most people confronted with objectionable behaviour will mumble some version of the phrase "there ought to be a law." But if law is seen as a policy instrument – as one way in which government tackles public problems and establishes public norms – is it always the best instrument? The CRTC, for example, recently announced that it would not regulate new media services on the Internet. Though the CRTC offered several rationales for its decision, the most interesting was that "The Commission does not believe that regulation of the new media would further the objectives of the Broadcasting Act." The Commission claimed that it was one of the first such bodies to clarify its position on the Internet. Its position was to do nothing, but more precisely, not to use legal instruments to regulate.

Most people confronted with objectionable behaviour will mumble some version of the phrase "there ought to be a law." But if law is seen as a policy instrument – as one way in which government tackles public problems and establishes public norms – is it always the best instrument?

If we move from this technical field to potential problems that manifest themselves on our streets, such as panhandling, we find that more is at stake than the rational calculation of the utility of legal regulation. Issues include:

  • How would you define "aggressive" and "panhandling"? How is "aggressive panhandling" different from telemarketing by charities?
  • Would you outlaw it entirely, or regulate it?
  • If you regulate, how would you design the regulations and attendant license conditions?
  • How would the law be enforced? How much would it cost?
  • Would there likely be litigation by panhandlers, probably backed by anti-poverty groups and Charter advocates?
  • Would the very act of passing a law either prohibiting or regulating panhandling actually stimulate the claim that there is a right to panhandle grounded in the Charter?
  • Might panhandlers invite being incarcerated in order to get food and shelter, and might a law actually increase the incidence of the activity?

The point is that too often these sorts of questions about instrument choice are not asked.

The point is that too often these sorts of questions about instrument choice are not asked. Justice officials and politicians often reach for a law because it is a primary instrument of government, and because it makes intuitive sense to influence behaviour and situations by making rules. As well, public opinion or groups may press for law as a way to make a moral statement or demonstrate concern. This begs some fundamental questions (as opposed to the practical ones above):

  • If a rule or law is appropriate, what type of rule – primary legislation, regulation, voluntary code, guidelines?
  • If it is not appropriate, are there other ways to influence behaviour – taxes, grants, subsidies, services, information?
  • Is direct behaviour really the key target, or is it something more fundamental like character, or culture, or social context?
  • To what extent should government be getting involved at all, or is it a matter of working with social and private sector groups to build their capacity to deal with problems?

…(P)ublic opinion or groups may press for law as a way to make a moral statement or demonstrate concern.

This paper will put the legal instrument in context, and examine some core issues of instrument choice. Public policy instruments are the means by which policy objectives are pursued. A sensible process of instrument choice would require, at minimum, knowing: i) the inventory of possible instruments and their rationales; and, ii) the criteria by which those instruments can be viewed. Beyond that, instrument choice will always depend on a complex chemistry consisting of the nature of the problem, public opinion, and political priorities.

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