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

4. Instrument Choice and Real Life

It may be that many public debates in fact are proxies for discussions about instrument choice. And it also may be that the terms of public debate tend to pose the issues of instrument choice in more fundamental terms than those usually found in government circles.

Ironically, though no one has conducted a careful analysis of the full stock of laws, regulations, and sundry rules, there is a widespread perception among most analysts and practitioners that, despite the alleged era of "smaller government," the stock has been increasing.

This paper cast some light on the nature of the legal instrument, the range of alternative instruments, and some questions in considering the appropriate criteria of choice. The point is that the knee-jerk reflex that "there ought to be a law" needs to be more carefully thought through. However, as wonderful as it may be to develop lists and categories, how do they connect with current public issues and debate? Hardly anyone at the local Starbucks seems likely to be found earnestly debating the principles of instrument choice over a steaming cappuccino.

Or are they? It may be that many public debates in fact are proxies for discussions about instrument choice. And it also may be that the terms of public debate tend to pose the issues of instrument choice in more fundamental terms than those usually found in government circles.

There Ought to be a Law

This paper suggested that instinct to pass a law as often misguided. But turn the lens around for a moment. The notion that "there ought to be a law" may reflect a sense that the basic, accepted, and often unarticulated norms that govern most social behaviour are gradually eroding. There has been widespread discussion in recent years about "social capital," trust, the impact of TV on community bonds, and the decline of the family.

So, when people despair over youth crime, sexual morality and pornography, rap songs, Ali McBeal, spousal assault, road rage, guns, divorce, street crime, prostitution – the list is endless – they are actually despairing over the gradual erosion of many traditional institutions that provided order and social cohesion, from churches to traditional families. This may or may not be correct, but the instinct that "there ought to be a law" points up the increasingly important role for government in articulating and enforcing social norms. This is neither easy nor comfortable, but it is an important force that cuts directly opposite to the notions of smaller, leaner and meaner government that has been so popular in recent years.

The other dimension of this is simply that as society gets more diverse and complex, it requires more sophisticated steering mechanisms and better ways to referee complex and competing interests. At this stage, government may be the only game in town to do this, though probably not in the traditional format.

The fundamental instrument choice question then is not that there should be "less" law or fewer rules – these coffee shop conversations all point to sustained demand for laws, rules and regulations – but better and smarter ones, ones that leverage the influence of existing social institutions so that they can do their job better.

The Role of Courts

…(T)he balance between courts and legislatures is actually a "meta-debate" about instrument choice.

A separate paper is addressing this theme, but from the point of view of public discussion, the balance between courts and legislatures is actually a "meta-debate" about instrument choice. How should norms be articulated and enforced? The irritation that many people feel with court-imposed norms surely stems from the point made earlier about the form of a rule (its legal bindingness and its scope) and the institutions that make those rules.

In thinking about rules and the legal instrument, officials cannot ignore the arenas in which rules are made and disputes resolved.

Rules about Rule Making

It has become a truism that the public trusts government less today than in the past (though this is an exaggeration). This has become the foundation for the increasing development of "rules about rule making" – something that some observers have even called a new policy instrument. In this instance, the target of the instrument is not the public, but government itself. Quality standards, performance indicators, privacy and access to information, formal consultative procedures, audits, evaluations – there has been an explosion of these types of instruments in recent years. The connection with coffee shop conversation is that people appear to want greater transparency and accountability from their public institutions. This picks up to some degree on the procedural and legal criteria discussed above.

Even if the existing stock of rules and law is too great, it is unlikely that demands for rules about rule making in government will abate.

Smaller Government

…(R)ule making will focus on norms and on processes. In that sense, it will have to draw on a wider repertoire of instruments such as information, expenditures, regulation, and services, and weave them together in ways that cut across traditional ways of doing government business.

People generally seem to accept that government should be smaller in some sense, but clearly are debating the role that government should play when they discuss re-configuration of services and re-balancing of jurisdictions. In terms of the earlier discussion in this paper, there seems to be an appetite for "distributed governance" of some sort that relies on partnerships among different levels of government, agencies, non-governmental organizations, the private sector, and the public at large.

None of this means less government, and it probably means just as many if not more rules. But the rule making will have to be different. Instead of focusing on behaviours, this type of rule making will focus on norms and on processes. In that sense, it will have to draw on a wider repertoire of instruments such as information, expenditures, regulation, and services, and weave them together in ways that cut across traditional ways of doing government business.

Let’s close with the issue of aggressive panhandling. As a policy problem, it is clearly about more than just an objectionable behaviour. Aboriginal kids panhandle because of the erosion of First Nations cultural norms and communities, and all the usual baggage that comes along with that. Squeegee kids are often drop-outs who have left their (sometimes comfortably middle class) families to live on the street. Middle-aged men panhandle because they can’t get jobs. Some homeless men and women are mentally ill.

Complex norms and processes are at work here. So is a diversity of players, from local governments to churches, community groups, local businesses, police, anti-poverty advocates, health and social service agencies, families, and the courts.

Ought there to be a law?

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