I Introduction
This article argues that fresh attention must be paid to the effectiveness of law where effectiveness refers to a “fact” (the application of rules) as well as to an “effect”, ie the real consequences of rules on social behaviour.Footnote 1
Even though there are conflicting views in the existing literature on the meaning of effective law and on what generates effectiveness, the article will contend that a number of factors demand such an increase in attention: not only does effectiveness express social and economic relevance by influencing the securité juridique Footnote 2 for citizens (when rules are effective their certainty and predictability are reinforced), transaction costsFootnote 3 and the regulatory environment for business,Footnote 4 but it also plays an important role for institutions, in the logic of “better results with fewer resources”, especially for the sustainability of public finances and other public interests (environmental protection, health, competition, etc).
The question of how law can contribute to the realisation of desidered effects without producing unwanted or disfunctional consequences has been studied in many fields of research, such as philosophy and sociology of law, law and economics, public policy and behavioural sciences. This article aims to set the question as a genuine administrative law issue, which is currently having a significant impact on administrative procedures, and consequently on administrative organisation and reform affecting the way in which rules are adopted and implemented.
The discussion below is broken down as follows: section II looks at the need for effective law (in this article, the idea is synonymous with effective rules) as a classic theme in legal theory which has recently started to be considered from an administrative law perspective; in section III effectiveness is analysed as a question of degree in different types of rules, arguing that no legal system can be defined as fully effective, and that effectiveness cannot be considered as a value in itself; section IV reviews traditional determinants of the effectiveness of rules, ie compliance and enforcement, but also the emerging aspect of outcomes, by analysing their interrelations with specific administrative law topics (simplification, communications, inspections, sanctions, “street-level” enforcement, information, evaluation, steering); section V considers effectiveness as an institutional decisional problem but also as a criterion for decision-making, since expected effectiveness can be used in the logic of “whether” and “how” institutions should decide; finally, section VI draws conclusions and argues that the search for effective law requires a “steering administration”, which aims to change the way in which rules and decisions are adopted and implemented, as well as an updating of the administrative law “toolbox”.
II The need for effective law: a problem of administrative law
Even though the idea of “effective law” is far from uncontroversial, over time legal and non-legal scholars have contributed to a highlighting of a variety of completely relevant features of effectiveness, from studies on legal normativity, to theories of compliance and to more recent “impact studies” which consider the outcomes of rules. Administrative law has a part to play in integrating traditional and emerging approaches, even because in recent years several provisions affecting administrative and regulatory procedures have been adopted with the purpose of increasing the effectiveness of rules.
1 Effectiveness of what? Rules at the crossroads between effective legislation and effective regulation
Current academic debate is often focused on the question of effective legislationFootnote 5 rather than on the wider question of effective law. This is understandable because legislation is, in modern times, the iconic way to produce rules. However, as a first step, the more comprehensive expression “effective law” seems to be more appropriate in order to develop an introductory analysis: in fact, law is more than legislationFootnote 6 and may even take the form of customary law as well as that of soft regulation.Footnote 7 Moreover, social norms can combine with legal provisions to influence behaviours. In other words, legislation is a very significant element in the discourse on effective law but not the only one.
As a second step, in this article effective law will be considered as synonymous with the idea of effective rules: rules are frequently part of legislation but they are also regulation,Footnote 8 in the sense that they can express a regulatory content in any other formal “box”Footnote 9 (government regulation, guidelines, manuals of instructions, regulation adopted by independent agencies and so on). A rule is such when it imposes obligations (ie a command) affecting the activities and the organisation of its addressees;Footnote 10 a rule is such because it is linked to its consequencesFootnote 11 (independently from its possible “box”) expressing a regulatory content.
Taking this idea as a starting point, effective law calls into question the way in which it is possible to make rules work well.Footnote 12 In this framework, it can be useful to remember that the effectiveness of a single rule regards the legal system as a whole at a given time: as in language, where the use of a word implies the entire grammatical system, it is impossible to approach the question of effectiveness of one single rule as a separate problem. Moreover, the effectiveness of a rule regards the legal system at a certain time but affects the legal system diachronically, because the force of existing lawFootnote 13 is capable of influencing compliance in the future, operating in a sort of “prediction effect”.Footnote 14 All this is definitely important for administrative law and concretely relevant for administration. Let us consider, for example, deprived urban areas characterised by a certain number of non-effective rules, such as in the field of separate collection of waste, parking, building regulations and so on. Literature and institutional experiences of urban regeneration look to adopt integrated administrative strategies, conceived as “area-based” initiatives with the aim of “finding effective policy solutions to the problem of deprived communities”.Footnote 15
2 Disagreement on effectiveness: legal normativity, compliance or outcomes?
Effectiveness is not an accidental or superfluous character of law. In fact, law is deeply ingrained in society (ubi societas, ibi ius) and society expresses a real need for this instrument which is indispensable to the organisation of social life and to the limitation of social conflicts:Footnote 16 while it is clear that effective law is needed, there does not seem to be complete agreement on the meaning of effective law, nor on the way in which effectiveness can be achieved.
A first academic approach considers effective law from a theoretical legal normative perspective, as law characterised by validity and binding force.Footnote 17 General theory and the philosophy of law have focused on this question, both in studies on the effectiveness of legal systems (especially international onesFootnote 18 ) and in studies and research into different kinds of effectiveness related to various typologies of rules, by proposing classifications based on their content or their structure.Footnote 19 Effectiveness, in this context, is related to organised force. Footnote 20
A second approach has been developed, mainly in fields of research such as sociology of law,Footnote 21 public policy,Footnote 22 neoclassical and behavioural economics, which focuses on compliance and on behaviour as a response to rules. In this framework, an additional subdivision is necessary between the perspective which considers behaviour as rational and influenced by economic incentives, such as sanctionsFootnote 23 as well as far more complex explanations “beyond compliance”Footnote 24 in which enforcement is ever more oriented towards cooperative solutions,Footnote 25 and is also sensitive to non-economic incentives. Many questions have been developed along these lines: the “enforcement style”,Footnote 26 the choice between “carrots and sticks”Footnote 27 (is it preferable to punish or to persuade?), the problem of limiting costs of enforcement,Footnote 28 and the increasing use of behavioural and cognitive insights as a way to strengthen voluntary compliance.Footnote 29
A third and last approach (strictly related to some of the more recent “compliance studies”) also develops an outcomes-based perspective, being an “amelioration in an underlying problem or other (hopefully positive) changes in conditions in the world”.Footnote 30 This is a new field of research, and is characterised by a huge number of contributions from different academic disciplines (the already mentioned sociology of law, public policy, behavioural and cognitive sciences, law and economics, and even psychology and neurosciences, as well as legislative studies and administrative law). It has recently been referred to as “impact studies”Footnote 31 and stresses the outcomes of rules, because “impact deserves to be looked as a whole”.Footnote 32 The idea is that a rule can be considered effective when desired results are effectively achieved and the public interest which justifies the rule has been safeguarded.Footnote 33 The outcomes of rules should be monitored and evaluated in order to avoid, as far as possible, “perverse effects” (“effets pervers”)Footnote 34 and in order to catalyse effects which are compatible with the objectives of regulation.Footnote 35 Let us consider, for example, anti-corruption regulation: the best response to illicit behaviour and corruption seems to be an increase in sanctions. However, if the risk of incurring fines remains the same, then there could paradoxically be the effect that the increased fine will produce unwanted side-effects, such as an increase in the size of the bribe necessary to corrupt.Footnote 36
Effectiveness has long been considered a task of governmentFootnote 37 or a task of economists.Footnote 38 Even though traditional legal scholarship used to “say what laws require, not to predict their effects”,Footnote 39 effectiveness is currently a real legal issue which works as a “background principle”Footnote 40 but also in operational terms (as we will see later, section V.1 and V.2).
3 From competing approaches towards integration: questioning administrative law
Effective law consists not only of rules which are valid, enforceble and possibly applied (legal normativity); not only of rules characterised by high rates of compliance and few costs of enforcement (theories of compliance); nor only of the results of rules which are consistent with regulatory objectives (outcomes). Effective law is all of these things together and implies complex and integrated administrative management in order to be achieved (the “steering administration”, see section IV.3.b).
In other words, each one of the aforementioned different approaches to effectiveness has played its part in developing a more powerful understanding of the problem. Some authors have recently advocated an integrated theory of steeringFootnote 41 with the purpose of posing, from an administrative law perspective, the question of how rules can contribute to achieve desidered effects without producing side effects – unwanted or disfunctional consequences – because “effects matter”.Footnote 42
In recent decades, at national, European and international level, provisions have multiplied, establishing impact assessment in law-making as well as other forms of evaluation in administrative procedures with the purpose of strengthening the effectiveness of rules and administrative decisions. Effectiveness of law is increasingly playing a pivotal role in the legal debate and questions administrative lawFootnote 43 more and more often. When we talk about quality of regulation,Footnote 44 responsive regulation,Footnote 45 a behavioural approach to regulationFootnote 46 or risk-based regulationFootnote 47 we are talking about several possibilities considered by legal scholars as ways to make rules more effective.
III Effectiveness of law as a question of degree
1 Different rules are effective in different ways
Whatever their denomination in the context of different theories,Footnote 48 there are distinct categories of rules. Starting first from a legal normative point of view, they work (and are effective) in quite different ways.
Some rules consist of commands, prohibitions but also permissions.Footnote 49 Their effectiveness works as obedience (compliance Footnote 50 ), such as in cases of obligations to pay taxes, prohibitions of competition-restricting agreements or when an application for building permission is required.
Some others rules establish sanctions (or any other consequence with the purpose of producing compliance)Footnote 51 or confer powers on administrations. Their effectiveness can be evaluated as legis-executio Footnote 52 (enforcement).Footnote 53 Normally these rules are strictly linked to the first ones, eg by establishing criminal or administrative penalties for fiscal evasion, competition infringments or building violations.
Moreover, there are rules which recognise freedoms and rights for individuals and whose effectiveness can be measured according to the extent of utilisation (rates of use).Footnote 54 In these cases, freedom means possibility to “act” as well as the possibility “not to act”.Footnote 55 For instance, legal provisions recognise the right to strike, which is effective even when not used, because its effectiveness consists in the fact that it is available for use.
Finally, there are rules which consist in persuasive measures (incentives), whose effectiveness has been considered dependent on the attention by potential beneficiaries,Footnote 56 as in the case of a successful subsidy programme.
However, if we adopt an integrated approach oriented to effectiveness (by also considering the outcomes of rules), rules can be observed, enforced, used (depending on their type) but – at the same time – conformity with rules might not necessarily ensure results which are consistent with regulatory objectives. For instance, rules which establish (apparently successful) subsidy programmes may produce distortions, eg “production for the subsidies”, failing to achieve their objectives; application of penalties does not always ensure the expected increase in compliance; rules on transparency (in financial or banking regulation) can be formally applied but to “give users information they need, when they need it, and in the form they need”Footnote 57 information should be selected (to avoid informative overload) and adequately presented (framing of information).Footnote 58 For these reasons, full effectiveness also depends on the attaining of regulatory objectives and on the concrete protection of the public interest served by the rule.
2 Rules tell us what to do, not what we will do (a structural gap)
The gap between rules and reality is structural because the law tells us “what to do” and does not tell us “what we will do”.Footnote 59 Despite its imperative form and its binding character, a law is “essentially a kind of persuasion”.Footnote 60 There is no legal system which can be defined as always and fully effective: a certain degree of ineffectiveness might be considered unavoidable, a risk which should be ever more internalised in decision-making processes. Failures in governing may occur because “the executive authorities are unable to enforce the norms”, or because “the target groups are not willing to comply” or because “unwanted side-effects appear”.Footnote 61 Partial effectiveness (or ineffectiveness, depending on the point of view) is the prevailing reality.Footnote 62 Effectiveness, in other words, is a question of degree, and degree should be included (as an essential feature) in the definition of effectiveness.Footnote 63
From this perspective, it would be important to consider the fact that there is a maximum rate of ineffectiveness compatible with the existence of a ruleFootnote 64 and also the extent to which a rule is influencing the effectiveness of the legal system because “without a generally respected and effective legal system, a society will tend to its own disintegration”.Footnote 65 This is the reason why not only public policies but also legal theory should take care of the ineffectiveness of rules in various fields of regulation, also resorting to aggregate analysis or reviews which may help in understanding, giving reasons and steering the process towards more effective administrative regulation.
Let us consider the smoking ban in indoor workplaces, public transport and other public places. A report on the implementation of the 2009 Council Recommendation on smoke-free environmentsFootnote 66 highlighted that “there has been good progress in transposing the Recommendation [...] into national law”.Footnote 67 However, even though “all Member States report that they have adopted measures to protect citizens from exposure to tobacco smoke”,Footnote 68 a new DirectiveFootnote 69 established further provisions aiming specifically at making tobacco products less appealing and attractive to young people.
3 Effectiveness is not a value in itself
Even though important, effectiveness does not say anything about the content of law and cannot be considered as a value in itself.Footnote 70 A mere effectiveness perspective may raise the idea that any rule that is effectively enforced would be legitimate independently from its content and any kind of legal system would be legitimate, as a fact, independently from its character.
Let us take, for instance, the case of totalitarian institutions:Footnote 71 their (even though contested) legitimacy,Footnote 72 a possible certain degree of consensus and a huge use of force by their officials could even ensure at least a certain rate of formal effectiveness, in the sense of their rules being effectively applied. Let us also take the case of extra-legal institutions,Footnote 73 for instance criminal associations and various kinds of mafia, whose lack of legitimacyFootnote 74 does not impede their effective functioning, sometimes more effective than formal institutions.
On the other hand, it is important to remember cases in which legitimate institutions and their administrative officers tend not to apply certain rules or not to sanction their violation:Footnote 75 this special kind of ineffectiveness is also known as “administrative tolerance”, which on some occasions is considered by the administration as preferable to the risk of a conflict with citizens or enterprises. In cases such as these, ineffectiveness should be considered as voluntary, a way in which pursuing the public interest, sometimes in the presence of changes in regulation, disproportionate or no longer adequate regulation,Footnote 76 or in sensitive social contexts.
Of course, any lack of correspondence between legitimacy and effectiveness may cause problems in terms of the consistency of the rule of law:Footnote 77 it would be preferable to scrap the rules than to ignore them.
IV Deconstructing effective law
As already mentioned in section III.1, different rules are effective in different ways: some of them must be obeyed, others applied, and yet others used. Scholars and academics have long indicated compliance and enforcement as determinants of effective law, as these are the elements which mostly contribute to defining the degree of effectiveness of the greater part of rules and of the legal system as a whole. Recent developments in literature and empirical evidence suggest integrating the traditional legal normative and the neoclassical economic approaches to compliance and enforcement: on one side, by enriching analyses of compliance and enforcement with behavioural and cognitive insights; on the other side, by also taking into account literature on regulation and impact studies (focused on the outcomes of rules). Of course, compliance, enforcement and outcomes do not work in parallel but are characterised by mutual influence and are very closely connected.
1 Compliance
As already mentioned, rules which consist of commands, prohibitions and permissions must be obeyed: when declaring tax, not smoking in a restaurant, when separately collecting waste or when applying for a building permit, citizens and firms cooperate with government in making law effective. On the other hand, compliance with rules is in the interest of governments which are supposed to be strongly concerned with increasing their effectiveness:Footnote 78 this interest corresponds, in fact, to the strengthening of institutional legitimacy and to the need to limit the costs of enforcement.Footnote 79
a Reasons for compliance
Regulators and public officials should always take into account the different factors which influence compliance. When regulating as well as when enforcing regulation, they should keep in mind reasons “why people obey to law”.Footnote 80 Motivations for compliance have long been studied and were initially divided into two groups.
A first kind of motivation works as an external force and is based on the fear of sanctions (eg monetary fines but also suspension of operations or some kind of disqualification) in order to induce compliance through deterrence and, in this sense, is strictly linked to enforcement, as in the traditional neoclassical economic vision.
A second kind of motivation stems from the internal and is connected to personal values and ethical reasonsFootnote 81 which operate in the absence of external coercion.Footnote 82
Scholars have also studied other motivations at the intersection of “internal” and “external”. For instance, procedural justice and the interaction with authorities are neither purely internal nor do they operate through deterrence; nonetheless, they are relevant to the decision to comply.Footnote 83 Moreover, social imitation factors are not entirely external motivationsFootnote 84 but they cannot be defined as internal force alone and contribute decisively to the choice about compliance, also depending on determinants such as group size.Footnote 85
The traditional rational economic approach has made an important contribution by placing individual decisions about compliance at centre stage.Footnote 86 This decision would be the result of an economic evaluation which connects the cost of compliance, the size of the penalty but also the risk of incurring the penalty:Footnote 87 when citizens or firms take decisions on compliance they are supposed to base them on a rational and informed choice, in matters of urban parking as well as when they decide to pay or evade taxes.
This idea has been criticised more recently, in particular on the basis of behavioural sciences and cognitive argumentsFootnote 88 by highlighting frequent biases in real people, for instance when evaluating risks or in calculating their own benefits or even in choosing on the basis of mere economic reasons.Footnote 89
In reality, far from being opposed, these approaches can mutually cooperate for the purpose of more effective rules: a rational incentive-disincentive approach can, in fact, be strengthened by behavioural and cognitive insights.Footnote 90 Furthermore, factors which influence compliance (external, internal, social norms) concern “the human side of regulation”Footnote 91 and should operate in “harmony”, because when they conflict “it is hard to predict the result”.Footnote 92
b To comply or not to comply, or perhaps to comply creatively?
Let us now summarise people’s choices and possible institutional responses: each of them raises a number of administrative law issues.
Some people may simply comply with rules because they are, for different reasons, motivated to do so. Governments should always be interested in understanding motivations for compliance, even in trends which do not seem to pose problems: this understanding can in fact strengthen administrative knowledge and information, which is indispensable to improving the quality of further institutional actions, both when regulating and when enforcing. Governments could also take into consideration compliance as a possible basis for rewarding cooperative behaviour, eg by establishing a more favourable regime for compliant groups by reducing the number of periodic inspections.Footnote 93
Conversely, others may not comply, because non-compliance allows, in different ways, an extra income, but also because compliance can be difficult and costly, because they do not know the rules or because they see the rule or the regulator as illegitimate. Regulators and public officers should distinguish between different motivations for non-compliance too. As we will see later (section IV.2), when enforcing powers to inspect and to impose sanctions requires a prudent and responsive “enforcement style”,Footnote 94 in some cases it could be better to impose penalties severely, in others to mitigate them, because “regulation would not be enforced in situations where they do not make sense”.Footnote 95
Finally, there is the increasing relevance of creative compliance:Footnote 96 in creative compliance people circumvent the scope of a rule and breach its spirit in order to achieve their own desired results, without breaking the formal terms of the rule. In this last regard, it is very difficult to follow the traditional logic to induce compliance operating in a binary mode (compliance/non compliance; reward/sanction). Creative compliance requires new combat techniques and new kinds of enforcement means, such as anti-avoidance rules,Footnote 97 by invalidating abusive avoidance results with the purpose of ensuring effectiveness of law, as in the case of tax regulation.Footnote 98
c Strategies for compliance: simplification and communication
Some administrative strategies can contribute in an integrated way to make compliance more likely and attractive than non-compliance.Footnote 99
A first point considered by regulators is reducing the costs of compliance via simplification policies. Regulators have started to reduce the number of rules, their complexity, costs and time necessary to comply and in this way they expect both to increase compliance and improve effectiveness. Simplification has become progressively more relevant as a tool for better regulation, eg recommended by OECD Regulatory Reform programs.Footnote 100 Many countries are involved in simplification processes, both of rules and of administrative procedures, with the purpose of limiting costs for administrations and with the aim of “reducing administrative burdens”Footnote 101 for businesses and citizensFootnote 102 by “easing and simplifying people’s choices”Footnote 103 and eliminating “unnecessary complexity”.Footnote 104 Of course, when simplifying, regulators should take into account that simplification is difficult to achieve and implies complex and ad hoc evaluations “to eliminate unnecessary discretionary power in government, not to eliminate all discretionary power”.Footnote 105 In other words, it is necessary to avoid the risk that discretionary power “can be either too broad or too narrow”.Footnote 106
Among strategies for compliance a major role is played by communication between institutions (on one side) and citizens and firms (on the other side). Communication supports effective rules and effective administrationFootnote 107 because it “is a vital prerequisite to impact”.Footnote 108 When rules are clear, consistent and characterised by appropriate publicity, their application is facilitated; moreover when rules have been adopted through consultation processes their legitimacy will be stronger and compliance is more likely to occur. However, there is a problem of consistency in communication, because communication consists not only of good quality verbal messages nor is it only a one-way process:Footnote 109 it implies non-verbal elements and feedback. Enforcement works, more or less, as a form of non-verbal communication.Footnote 110 If it is true that “law sends messages”,Footnote 111 it is nonetheless true that there are two messages:Footnote 112 the first comes from the formulation of the ruleFootnote 113 (which establishes consequences for specific non-compliant behaviours); the second comes from enforcement, and can be consistent or not with the first (for instance, because established penalties have/have not been imposed)Footnote 114 influencing the credibility of government.Footnote 115
2 Enforcement
In general terms, “the goal of enforcement [...] is to achieve that degree of compliance with the rule of prescribed (or proscribed) behavior that the society believes it can afford”.Footnote 116 Starting from the traditional neoclassical vision (which considered enforcement influenced by economic incentives), enforcement has become an ever more complex, cooperative and articulated strategy to achieve effectiveness and regulatory success.Footnote 117
a Coercion and beyond
There is no doubt that enforcement presupposes coercive meansFootnote 118 given to public bodies, police, courts, administrative agencies with the purpose of enforcing the observance of rules. Literature on enforcement has traditionally stressed this point, because organised force influences behaviour thanks to the role of fear,Footnote 119 putting the deterrent effect into operation.Footnote 120
Even though coercion remains a significant element of enforcement (and through it, of effectiveness), the integrated approach to effectiveness, based also on the outcomes of rules, has made it evident that it should be used only when necessary and should be well calibrated because fear of sanctions does not produce compliance in all cases. Sometimes, disproportionate coercion could even be counterproductive for long-term compliance.Footnote 121
This expresses a paradox of quantity: in enforcement there is always the risk of too much, just as there is a risk of too little. If the definition of optimal enforcement is dependent “upon the amount of resources devoted to the task”,Footnote 122 nonetheless it is clear that enforcement is also a question of quality, of good rules and good practices “about the use of force”Footnote 123 and implies a really responsive regulation.Footnote 124 At the end of the day, “to be authoritative, legal rules and decisions must affect the actions of those toward whom they are directed”.Footnote 125
b Inspections, sanctions, “street level” enforcement: fine tuning of traditional administrative tools
It is possible to distinguish three different instruments of enforcement, all relevant for effective law. They operate as drivers of effectiveness and should be managed from a single and strategic administrative law perspective.
The first instrument is detection of non-compliance and infringments, which requires inspections (or controls, more in general). Checks on compliance are needed because “non-compliance is seen as a risk per se”Footnote 126 and because controls are a powerful tool to influence behaviour: as a first approximation, it has been proved that “human behaviour changes when subject to controls”.Footnote 127 On the other hand, controls and inspections do not automatically produce more compliance and effectiveness and it is not always true that during inspections “people under observation tend to behave in a more cooperative way”.Footnote 128 Literature on the topic has highlighted that administrative officers should avoid excessively intrusive controls because they may produce resistance and evasion and because compliance depends also on the way in which controls are carried outFootnote 129 and on perceived procedural justice.Footnote 130 Moreover, controls are strictly connected to regulatory enforcementFootnote 131 and they may turn out to be too expensive and non effective, incapable of detecting infringments.Footnote 132 It has recently been made evident that in carrying out controls, public officers should be aware that such controls can produce occasions for illicit transactions and corruption.Footnote 133 In order to increase their effectiveness – so that they can contribute to effectiveness of rules – controls should be properly regulated, well plannedFootnote 134 and carefully executed,Footnote 135 thanks also to contributions coming from behavioural insightsFootnote 136 and empirical evidence.Footnote 137
The second and related aspect of enforcement is sanction of detected non-compliance and infringments. Administrative bodies are in charge of powers, such as powers to investigate and inspect, the power of authorisation, the power to grant subsidies and so on. When establishing these powers, the rules frequently include the possibility to impose penalties and fines, because the fear of sanctions plays its role in the game of effective law. Sanctions are economic tools through which law creates an interest in complying with rules. In the light of the integrated approach to effectiveness, based also on the outcomes of rules, the size of sanctions risks having very little impact, whereas the risk with excessive sanctions is that they might backfire. In order to be effective (and to help in making rules effective) sanctions should be well designed by regulation (for example, according to their optimal amountFootnote 138 ), adjusted on elasticity of behavior,Footnote 139 properly calibrated when in the form of monetary sanctions (because they otherwise operate as a “price”Footnote 140 for non-compliance); sometimes non-monetary sanctions can prove more effective;Footnote 141 on the other hand, there are cases in which it would be better to operate via incentives, rewarding enforcementFootnote 142 and compliant groups.Footnote 143
The third and last aspect concerns enforcement in practice. This step involves enforcement officials at “street level”,Footnote 144 when it is necessary (for instance) to implement a demolition order, to carry out a sentence, to collect taxes, and so on. All too often effectiveness fails at the administrative “street level”. Only here is it possible to say that regulation is concrete and real, that results of public policies have been achieved and that rules are effective. Enforcement can, in practice, make the difference for effectiveness and for the success of public policy, and should always be monitored because it expresses a meaningful understanding about the real impact of rules.
3 Outcomes
Compliance and enforcement focus on conformity with rules, not necessarily on results. Defects in rules, their insufficient application, side-effects and the more general problem of regulatory failuresFootnote 145 are so frequent that over recent decades there has been pressure at international as well as European level to increase the quality of regulation orienting rules to ensure not only ease of compliance and application, but also outcomes.
The institutional debate has been characterised by the idea that quality of regulation regards “[...] the whole policy cycle – from the design of a piece of legislation to implementation, enforcement, evaluation and revision”Footnote 146 and the idea that better regulation has to “meet concrete quality standards, avoids unnecessary regulatory burdens and effectively meets clear objectives”.Footnote 147 The academic debate in the field of regulation (and on quality of regulation) too, has long confirmed that there is a “symbiotic relationship between the formulation of regulatory rules and their application”;Footnote 148 that the “good” regulatory regimeFootnote 149 is strictly connected to enforcement of rules (and compliance);Footnote 150 that regulation “seeks to change behaviour in order to produce desired outcomes”.Footnote 151
a Rules (and institutions) fit for purpose
There is broad agreement on the idea that rules should be good, in the sense that they should be not only clear, understandable and consistent or easy to comply with and to apply but also conducive to their desired outcomes. Even in legislative studies “a good law is simply a law that is capable of achieving the regulatory reform that it was released to effectuate or support”.Footnote 152 This idea requires rules that are “fit for purpose”,Footnote 153 which should be “managed in a manner that ensures [they] continue to efficiently achieve [their] public policy objectives”,Footnote 154 in other words, rules which need to be maintained.Footnote 155 National experiences have been provided with ex-ante as well as ex post evaluation of legislation such as in the EU,Footnote 156 in the UK or the United States,Footnote 157 in Australia, Canada, The Netherlands,Footnote 158 in Eastern EuropeFootnote 159 and elsewhere.
A 2008 constitutional reform in France stated that the French Parliament is obliged to carry out public policy evaluation sessions, dedicating one week per month to this kind of activity,Footnote 160 not only law-making but also a sort of law-maintenance. There are also requirements for institutions to be “fit for purpose”: international conventions, European directives and national legislation are ever more interested in establishing that certain kinds of institutions must be characterised by autonomy (or independence, where appropriate), expertise and adequate resources, in order to make them effective, as far as possible. This is the case, for example, with National regulatory authorities,Footnote 161 anti-corruption institutions,Footnote 162 regulatory oversight bodiesFootnote 163 and so on.
b Information, evaluation, steering: the administrative toolbox dealing with uncertainty
Achieving outcomes is not a simple task. If rules are to be legitimate, observed, enforced as well as capable of achieving their objectives, the administrative law toolbox needs to be improved and to address risk and uncertainty.Footnote 164 This implies, on one side, internalising the (general) risk of rules’ ineffectiveness alongside any possible kind of (specific) riskFootnote 165 within decision-making processes; and on the other side, the strengthening of three drivers for results.
The first is information, relevant both when adopting rules and when applying them: administration needs informationFootnote 166 and administrative powers presuppose ever more activities of collecting and managing complex information via databases in order to adopt evidence-based, risk-based and well-reasoned rules and administrative decisions, capable of attaining objectives and of responding adequately to the public interest.Footnote 167 Even though administrative knowledge is a cost, it must be paid both to legitimate administrative decisionsFootnote 168 and to make them effective, as far as possible.
The second driver is evaluation, considered not only as a tool for administrative efficiency and productivity but also in the logic of public policy, rule-making and decision-making.Footnote 169 Starting from 2014, the European Commission has ruled a principle of “evaluation first” by establishing that “the Commission will not examine proposals in areas of existing legislation until the regulatory mapping and appropriate subsequent evaluation work has been conducted”.Footnote 170 Evaluation is very difficult to carry outFootnote 171 but it should be considered as an indispensable instrument to achieve effectiveness: it implies “the analysis of outcomes, what they are, why they are what they are, and who decides this”.Footnote 172
The third and last driver of effectiveness (from an outcomes perspective) is steering, which is nowadays affirmingFootnote 173 itself as a set of institutional activities oriented to achieving results and delivering effects consistent with policy and regulatory objectives and (possibly) to limit, as far as possible, costs of enforcement. The problem of steering has been viewed in the context of public policiesFootnote 174 and public management.Footnote 175 From a regulatory and administrative law point of view, steering concerns the whole regulatory cycle, from design of a rule to its enforcement, including specific monitoring and evaluation. It is often regulated by legislation and supported by guidances and checklists (ie in matters of impact assessment); it concerns regulators (parliaments, governments and independent bodies) and regulatory oversight bodies (all in charge of the “whole-of Government approach” for regulatory policyFootnote 176 ), enforcement agencies and inspectors (supported by guidelines and manuals of inspectionsFootnote 177 ) as well as coordination units and evaluation bodies (especially concerned with outcomes).
Administrative law scholars start to focus the need for steering by arguing “for increased use of empirical analysis to evaluate how well institutional procedures and design achieve public goals”Footnote 178 and also for an “advanced theory of steering, ie of systematic understanding about the conditions under which what legal instruments or legally imposed structures would cause which effects”.Footnote 179 Furthermore, administrative law itself is ever more frequently considered “as regulation and steering”Footnote 180 ; a feature of the “new, or postmodern, administrative law” is just to be more opened and focused “on ‘steering’ rather than on ordering”.Footnote 181
V Effective law: a decisional problem or a criterion for decision-making?
Whenever administrations adopt decisions these decisions should be considered in the framework of the wider administrative function they express. In fact, rules govern administration mainly by designing schemes for decisions so that it is possibile to distinguish “between decisions made about particular cases and decisions about how to deal with classes of case”.Footnote 182 For instance, in many administrative systems municipalities have the power to demolish illegal, unauthorised buildings: rules establish (in general) requirements, principles, procedures which must be observed when adopting and implementing (particular) demolition orders. Each of these orders can be reviewed on the basis of its conformity with prescribed requirements. This makes it possible to discuss the effectiveness of a specific demolition order and that of the demolition administrative function, in general.
In any case, the problem arises both when general and individual decisions are adopted because effective law is (first of all) a decisional problem which should be considered when drafting rules (schemes for individual decisions, the “regulatory design”Footnote 183 ) as well as when rules are applied (by adopting each individual decision).
Designing optimal rules is an arduous task.Footnote 184 However, effectiveness represents not only the problem but also the possible solution, like a vaccine which is produced from its virus. As already mentioned, the effectiveness of rules can be firstly considered a risk to be internalised in decision-making processes, but also as a criterion for decision-making, affecting the “whether” and the “how” of decisions.
1 The “whether” of decisions
In the “whether” perspective, expected effectiveness can operate as a real selector in the institutional decision-making process, contributing to deciding whether to regulate, as well as whether to implement and enforce.
Regarding rules, this is illustrated by the plethora of prescriptions and guidelines which require ex ante assessment (and, in this context, of the expected effectiveness of rules) before their adoption: regulatory impact analysis must first assess the so-called zero option (or baseline or status quo),Footnote 185 which should be identified, evaluated and definitely preferred if during the process it does not emerge that a different regulatory option would credibly be able to achieve a more desirable distribution of advantages and disadvantages.Footnote 186 In other words, sometimes expectancy of effectiveness could suggest simply doing “nothing”.
Regarding single administrative decisions, we should distiguish between cases in which expected effectiveness affects administrative activities when enforcing rules, from cases in which it affects the regulatory design of the administrative function itself.
In the first kind of case, the previously mentioned administrative tolerance works more or less by suggesting that a given rule not be enforced at the “street level” (eg in case of economic activities without required licences) for reasons related to the opportunity of avoiding some form of conflict: when a regulation has changed and substantive compliance costs are very high, enforcement officers could decide (in the absence of any formal decision) to postpone the application, behaving as real “policy makers”.Footnote 187
In many other cases, however, administrative procedures – from their regulatory design – are structured in order to be able to predictively evaluate elements which might be relevant for the decision whether to act or not to act. Let us consider the planning of inspections, which is ever more frequently adopted through risk based targeting by evaluating elements such as probability of non-compliance, or the potential level of harm, or other more qualitative insights.Footnote 188
2 The “how” of decisions
From the “how” perspective, effectiveness contributes to defining the way in which to better regulate, implement or enforce. In other words, effectiveness changes the path of decisions as well as their content.
Accuracy of administrative procedures has been traditionally linked to the purpose of making public decisions certain and adequate, characterised by clarity and consistency, according to principles such as the right to be heard,Footnote 189 participation and transparency.
However, although administrative procedures have long been considered “another mechanism for inducing compliance”Footnote 190 they could also contribute to achieving policy and regulatory objectives and to limiting undesired side effects.Footnote 191 In this context, transparency and public participation “can help produce better, more informed policy decisions”Footnote 192 and to increase perceived legitimacy and procedural justiceFootnote 193 by supporting good administration. Furthermore, even economic evaluation techniques, such as cost-benefit analysis, have to be considered as “a method for taking into account the interests of all affected citizens and selecting regulatory measures that will enhance societal welfare”.Footnote 194
Effectiveness of decisions must therefore be prepared starting from the same decision-making process: when rules are adopted it is important to gather evidence in order to evaluate their possible impacts;Footnote 195 statistical evidence and data allows decisions to be steered towards effectiveness;Footnote 196 in all kinds of decisions it is necessary to increase “good” consultation processes;Footnote 197 different decision options should be evaluated with a consideration of the effectiveness perspective.Footnote 198
On the other hand, effectiveness is under threat from all sides, because collecting and evaluating interests (via consultation and participation) could not only bring about positive effects on legislative, regulatory and administrative procedures, but also dysfunctions, and even corruption,Footnote 199 as when some interests are underrepresented in the procedureFootnote 200 while other interests – which might be particularly aggressive – could prevail (by licit or illicit means, such as bribery).Footnote 201
VI Concluding remarks
In his article “Administrative Law in the Twenty-First Century”, Richard Stewart wrote:
“today we face an acute problem of growing regulatory fatigue. The public demands higher and higher levels of regulatory protection, yet regulatory administrative government seems less and less capable of providing such protection in an efficient and effective manner […]. Regulatory results often fall short of expectations at the same time that regulatory requirements grow ever more burdensome”.Footnote 202
Effective law is becoming a recurring and pressing issue, ever more relevant for governments as well as for scholars and academics because “the crisis of regulatory law is to be cured by increasing its instrumental effectiveness”.Footnote 203
On the side of governments, reduced resources for public policies and high tax burdens impose a shift in attention from fundingFootnote 204 to effectiveness,Footnote 205 in the already-mentioned logic of “better results with fewer resources”.
On the side of scholars and academics, disfunctionalities of legislation (and regulation) are analysed and discussed; unintentional consequences are monitored;Footnote 206 regulatory failures are frequent, full compliance is difficult to achieve, enforcement is expensive and unpredictable.Footnote 207 Over all, rules are produced “under conditions of high complexity and limited knowledge”Footnote 208 in a context of a serious “crisis of confidence” in regulation.Footnote 209
Administrative law scholars have a special commitment in this context because administrative law is, at the same time, concerned and challenged by effectiveness.
It is concerned because in recent decades several regulations affecting administrative activities have established provisions and have formalised in different ways the search for effective administration and administrative decisions, in rule-making (eg by requiring impact assessment and consultation) as well as in decision-making (eg by providing risk-based planning of inspections, optimal amount of sanctions, environmental impact evaluation and so on). Alongside its executive and more traditional character, administrative law has developed a preventive feature:Footnote 210 managing risks and protecting interests requires effective results and imposes an integrated approach to effectiveness that incorporates not only compliance with rules and enforcement but also the outcomes of rules.
Furthermore, administrative law is challenged by effectiveness because it should focus on legal aspects of an integrated set of institutional activities oriented to achieve results and deliver effects which are consistent with policy and regulatory objectives and (possibly) to limit, as far as possible, costs of enforcement. In other words, administrative law has to deal with steering (section IV.3.b) which points at a sort of comprehensive administrative meta-levelFootnote 211 and affects the regulatory design of administrative procedures and organisation, the administrative law tool-box, the administrative officers’ expertise.Footnote 212
However, when legislators and regulators do not declare their real objectives, do not carry out adequate gathering of evidence, do not want to achieve declared results because they have simply engaged in symbolic politics,Footnote 213 the regulatory and administrative process is distortedFootnote 214 making it definitely more difficult to lead towards effective rules. In these cases, only a steering administration has the capability as well as the interest to show up “symbolic” rules.Footnote 215 In fact, a steering administration is in charge of “concretising”,Footnote 216 is legis-executio related but no longer ancillary to legis-latio, as it was in the past.Footnote 217 It protects the long-term institutional interest for effectiveness because “effective administration” is and definitely remains “[…] the great problem of the future”.Footnote 218
