(Baby don’t hurt me, don’t hurt me, no more: Haddaway)
This post was written by Tobias Arnoldussen.
The particular team that I am a member of for UGoveRN is called law and policy. A rather generic and self-evident sounding name, it will not raise any eyebrows. It feels like law and policy are two birds of a feather, they both deal with governing human behaviour and ordering society. Indeed, legislation is an often-used instrument within a certain policy. Treating these topics together seems natural and right.
I do not think it is that self-evident though. In fact, I think there is a distinct tension between law and policy that I will be exploring in the context of this UGovern chapter and this blog. As an opening salvo for the law and policy chapter of UGovern, the relationship between law and policy is tackled in three blog posts, this one on law, the next one on policy and the third one on the relationship between the two fields. In this post on law, I will claim that law’s formality and its rigidity are its defining characteristics. They might not exactly its most endearing characteristics but they are fundamental to understanding the difference between law and policy. The more law is shedding these characteristics, the more law is starting to look like policy. I think that that is not necessarily a favourable development. In fact we need rigidity sometimes, at least that is the claim defended in this trilogy of posts.
When a lawyer explains to a non-lawyer what law is, probably she will invoke a classic example of a legal rule: “No vehicles in the park” the example provided by legal philosopher HLA Hart. A legal rule such as this one contains a behavioural norm, here the prohibition to drive your vehicle in the park, promulgated by the competent authorities, in this case probably the municipality under who’s jurisdiction the park in question resides, which is applicable to all who seek entry into the part. When pressed about the difference between law and other norms such as, say, the rules of chess, the lawyer will explain that the legal quality of the rule depends on the procedures by which the rule is promulgated. Rules belong to the realm of law, by virtue of them being issued by a competent legal institution. This competence in turn depends on higher law. The Dutch constitution for instance grants the power to make laws in the Netherlands to the government and Estates General jointly. That means that both these instances in unison have the power to make law and their laws are binding when they are promulgated according to the procedures laid down in the constitution. The Estates General can delegate the power to make law to lower administrative bodies, such as the government, ministries, provinces or municipalities. Their rules then have the status of law because they can point to having been granted the legislative power by law from the government and the estates general, who have been granted that power by the constitution and so on.
The lawyer will solemnly proclaim that this procedural requirement is called the principle of legality. Through this principle, a myriad of laws and regulations are connected and related to each other in hierarchical order. Of course, this conception is not without its problems. We also recognise customary law and the majority of scholars nowadays reckon legal principles as sources of law. Still, the field of law, from the perspective of the positivistic lawyer, is complex but neatly ordered. In this order the lawyer feels at home. The rules which count as law are not your every other rule. They are binding rules, meaning that when they are transgressed, the violator may have to face legal consequences. Historical pedigree therefore dictates which rules are guaranteed by the strong arm of the law. Breaking non legal rules ‘merely’ results in social consequences, but cannot be enforced by legal means. For a lawyer, all depends on the form a certain rule has.
The corollary of this emphasis on procedure is that if procedures are not followed correctly, the rule, or a legal decision based upon it, is in principle not binding, irrespective of whether the content of it is just. To a non-lawyer this kind of legal formalism might sound quaint and unproductive. Why is it that a guilty man should escape his punishment if the indictment says he committed his crime in Amsterdam, while actually it took place in The Hague? The wrong doing is the same after all. Why would road expansion need to be halted because of a minor transgression of the norms for dust in the air, when no one lives along the road to begin with? Why does it take the Dutch supreme court to rule that it is ok for an optician to sell glasses to a man who just lost them and is utterly blind without them after the mandatory closing time, while everyone agrees the optician acted correctly? Law with its fondness of form and its strict pedigree tests seems to inhibit a search for flexible solutions.
Law’s strict adherence to formality is explained by the historical relationship between law and conflict. In recent times it is almost forgotten, used as we are to living in an well ordered society, but law regulates situations that are potentially dangerous, namely human conflict. According to philosopher of law Bas Schotel, historically law’s main function is to determine who may use force legitimately. In these situations, law does not necessarily decide who is ‘right’, in some moral sense, but who has the right to enforce his claim vis a vis her counter party. Deciding who is morally right is a much more difficult question and at times there will not be a definite answer available. Law seeks workable solutions that stops conflict from escalating by deciding who may use force to vindicate their claims and who should step aside.
Even though this emphasis on violence sounds dark this is a conception of law I am willing to defend, despite there being many others. I like this conception because it explains the emergence of law in a historical and sociological fashion. Law emerged out of social action, the adjudication of conflict and the regulation of potentially conflictuous relationships among people. If we look at the earliest laws found, the lex talionis with the famous phrase ‘an eye for an eye and a tooth for a tooth’, this law meticulously lays down the limits of legitimate use of force. If someone takes your eye you may take hers. An example of the cruelty of earlier times? No, an example of the need for precise boundaries on retaliation in order to curb cycles of violence and lay down conditions for legitimate conflict resolution. Still a lot of our laws are about determining the level of violence parties can use. When is it legitimate to evict and unruly tenant and in what way may this be done, when can the police search your house and under what conditions can you lay claim on the possessions of someone who owes you a certain amount of money or goods? All these are in the end violent acts that require legitimation, because they may well be resisted or retaliated against.
This connection to violence explains why lawyers are sticklers to both formality and certainty. Something as grave and upsetting as violence needs to be bounded by very precise rules, or else the conflicting parties interpret them differently and accuse each other of not conforming to a certain condition or other. At that point violence threatens to become unbound again. Form, therefore is essential to a lawyer. We need to know exactly what we can do, how and in what situation, according to what procedures.
Moreover, in order to determine whether violence is justified, law looks to the past. Subjecting someone to violence who could not know her behaviour would be violently rebuked, leads to resentment and possible violence in return. Violence is only legitimate if it was considered justified in an earlier, similar situation, or when it is publicly ordained that certain behaviour will be met with violence. In such a situation, the protagonists could have realised the consequences of their behaviour at least in principle. Hence the power of legal precedent and legislation. In sum: law, in this view, is a system of rules, judgments and procedures that is elaborated over time in order to settle conflicts between people that have the potential to violently disrupt the orderly functioning of society.
This might sound quaint and overly conservative. Hasn’t something changed? Is law really in the end about deciding who legitimately owns the means of violence? The state has long ago gained the monopoly on violence and even though a lot of law is still aimed at conflict resolution, legislators realised they could do more with it. Why would we equate law with the deployment of violence and not with a shared interest in promoting the common good?
Indeed, a lot of law nowadays is geared towards reaching a fairer society. Law became an instrument to influence the behaviour of citizens towards lofty goals such as material equality, combatting marginalisation, realising proper environmental conditions and so on. Such law is called ‘responsive’, after the term ‘responsive law’ coined by the great sociologists of law Phillip Selznick and Philippe Nonet in the 1970s. Selznick and Nonet argued that law would lose its formality and would become more like policy. It would start to determine goals to be reached in order to cure social ills.
They consider that formal neutrality and the rule of law are not the end of legal evolution. When legal professionals realise that a formal conception of law leads to the application of it without eye for the social consequences, law will change. Nonet and Selznick are informed by the ideals of the age, equality, the fight for equal rights, the birth of the feminist, peace and environmental movements. They were after all progressives from Berkeley, the most progressive perhaps of American universities, during an age in which law seemed to hamper social progress all too often.
The children of the 1980s and 1990s are maybe more cynical. Do we not lose something valuable, something essentially legal when the boundary between law and policy will change? Nonet and Selznick appear convinced that law will become responsive to the ‘right’ social demands, but how can we be so sure? What if law becomes responsive to populistic demands for exclusion of immigrants or market driven demands for cheap resources? Perhaps the conservative, historical, formalistic and conflict-conscious nature of law not only inhibits but also protects social progress.
To assess the claims of Selznick and Nonet and evaluate the ever-closer connection between law and policy, we will have to turn to policy and investigate what policy is and where it differs from law. This tentative investigation will be undertaken in the next blog post.
 Herbert Hart, Positivism and the Separation of Law and Morals, 71 Harvard Law Review. 593, 607 (1958).  Bas Schotel, Legislation, Empirical Research and Juridical Law, The Theory and Practice of Legislation, 1(3), 2013, pp. 501-532.  Another connection to a potentially disrupting field is law’s regulation of sexuality through family law and inheritance law. Here we may point to an equally ancient law aimed at securing an orderly society, the prohibition of incest. See in this vein the work ‘Eroticism’ by Lean Luc Bataille.  Philippe Nonet & Phillip Selznick, Law and Society in Transition, (1978), , Routledge.