Policy always needs police

As discussed in the previous post, to the lawyer, law appears as an orderly system. Law grants rights and competencies and dispenses duties and obligations. It does not formulate the goals of these rights and obligations. The task of formulating goals is a political matter and maybe a matter of personal preference in daily life. In its archetypical form, law does not deal with goals, but only with the definition of behaviour as lawful or unlawful. It is a system shaped by its application to social and individual conflicts. This proximity to conflict means that lawyers are keen on the precise definiton of legal rules and on granting competencies in a manner as clear as possible. Legal subjects should not have any doubt in principle what behavior is allowed and what deemed illegal. Its practitioners zealously guard the image of impartiality and equity because law’s legitimacy depends on social acceptance.

This second post in a trilogy on law and policy deals with the question what policy is. Things are not as clear cut it seems. There is little in the way of precise definitions. Dictionaries, a book and an article, provided me with a number of clues, but each of them defines policy slightly differently.[1] Generally, policies seem to be plans or actions in which certain goals are articulated and in which the means to get there are often elaborated as well. The government issues policies, but all sorts of administrations and organisations can.

The common denominator between policy and law is that they are both products of rule making.[2] Both law and policy are sets of rules in the sense that they prescribe or prohibit a certain course of conduct. However when the rules of policy are compared to the rules of law, the types of rules appear to be very different. Contrary to law as it is traditionally conceived, policies contain goals and the behaviour they prescribe is aimed at reaching these explicitly stated goals. Policies contain what Pauline Westerman calls ‘aspirational norms’[3].

Policy is generally not binding on everyone but binds only the people within the organisation making the policy, or the agency to which policy is addressed. It is binding on the people that ascribe to the goals of the organization, who can realise these goals. The set of rules and regulations called healthcare policy for instance is binding on people working in healthcare, but not to patients. The ‘no verhicles in the park’ rule on the contrary is binding on vehicle owners, but also on everyone else, even though there is less chance of them entering the park with a vehicle.

Defining norms in terms of goals to be met invokes a whole new set of problems. First of all, the goals of policy must themselves be made concrete. Dutch environmental policy for instance has a great number of goals for the different sectors of environmental policy, goals for clean air for instance, for CO2 emissions, for biodiversity protection, for soil pollution and NO2 emissions etc. [4] These sub goals must themselves be made concrete as well.

The goal of Dutch biodiversity policy is to bring the loss of biodiversity to a halt.[5] That goal is itself not concrete and is broken down in a number of sub-sub goals which are more concrete and function as indicators on whether the overall goal is reached. However realizing those goals depends on the actions of a great variety of actors. Organisations must be enlisted, the support of private and market parties acquired, even individuals and consumers can promote biodiversity.[6] Contrary to law where a certain behaviour valued as being in compliance with the law or not, in policy behaviour has to be assessed in terms of its contribution to reaching the goals of the policy. The behaviour of many different actors must be constantly assessed to make sure they stay on track in order to reach the goals. Notice the difference with law. A violation of the law is more or less easy to determine. When a certain behaviour contravenes the prohibition against it, the law is violated. Of course, violators may try to commit their behaviour undetected but when it is detected, determining compliance or non-compliance is usually not so hard to establish. Whether a certain behaviour actively contributes to a certain goal is much harder to assess.

The solution for this problem is found in systems of reporting and feedback. Policy does not only articulate goals, but also indicators, the targets which indicate to what extent a goal is being reached. Additionally, policy often contains reporting obligations. Actors subjected to the policy have to report on what they did to contribute to reaching the goals. Westerman calls these types of norms accountability norms.[7] Accountability norms function towards the achievement of the goals in multiple ways. Firstly they push the actors to achieve the goals because they force them to take into account to what extent their actions have furthered the goals of the policy. Secondly, the review of the reports by their superiors enable feedback and steering. The accountability norm also enables loops of feedback. The principal organization judges the report of its subordinate actors, but the report also functions as feedback for the principal organization to what extent its policy is functioning well.

Accountability norms seem to be rapidly gaining ground. One can see it when calling service providers where at the end of your call you may be asked questions to rate the performance of the employee. The student evaluations are a case in point as well. They may be used by the university to assess the teaching competencies of its professors. Platforms like uber and booking.com ask its customers to rate the drivers and the accommodations in order to assess whether their services contribute to customer satisfaction. Such ratings, targets an indicators are largely absent in traditional law. A legal norm is complied with or not and when it is not complied with there may be consequences. However, policy requires the rating of every behavior related to it. Since new goals and targets are always being set, this monitoring is continuous and there is always room for improvement.[8]

When we quickly look at the difference between law and policy we see that law orders, but policy mobilizes. Law creates spaces where certain behaviour is and is not allowed, like the park in the traditional example in which no vehicles are allowed. Policy sets goals and induces the people who are the subject of policy to realize them. In this sense policy is far more invasive than law, because law generally tells you to refrain from something or gives you an opportunity to do something, but policy demands you to do something and it strives to make you do it willingly.

Policy does not have the general binding power of law and it does not have the institution of the police behind it, but policy is actually all about policing. The police seems an institution related to the state par excellence, but Foucault showed that ‘police’ has a different, much more social meaning. It is the epitome of surveillance technology, making the actions of people visible.[9] Policy works by way of policing, the constant observation of whether the behavior of its subjects contributes or detracts from the target. Reporting obligations and feed back loops create a continuous assessment of all against all, especially with the proliferation of policy to all kinds of domains and the tendency to subject more and more people to it.[10]

The policing power of policy is much vaster and more pervasive than the limited powers granted by law to the police as an institution. Compared to policy, law is clear cut and crude. Behavior is either legal or illegal and when it is illegal a penalty needs to be paid. The penalty might range from compensating someone who is wrongfully damaged to spending time in prison. Law grants rights and competencies and when a right is obtained there are procedural safeguards which determine whether it can be taken away, if at all. Policy functions differently. The system of rights and rewards granted by policy is much more diverse. It grants permits, positions, accolades, honors, rewards and relegations. It determines criteria and judges action continuously through reporting obligations and feed back. It tries to make its subjects accept the goals by providing information and by celebrating those that do. Rights are never granted as such, privileges are granted and maybe taken away depending on the status of goal achievement.

Contrary to law, policy is a system that sets goals. Concrete behavioral norms are rare, instead there are assessment procedures to determine whether the behavior of institutions and individuals contributes to reaching the desired outcomes. To that end goals are broken down in sub goals and indicators. Policy mobilizes people to reach the goals in various ways by way of a stick and carrot approach. It awards behavior that contributes and punishes behavior that does not. It sanctions span a broad range and are not formally articulated. Law seems antithetical to policy but the two grow towards each other and I think in an asymmetrical way. As policy becomes more pervasive the realm of law becomes smaller and what was legal becomes ‘political’, i.e. a matter of policy.

What are the consequences of this gradual encroachment of policy on law? In the final post this situation will be evaluated.

[1] The Merriam Webster dictionary online, The Cambridge dictionary online, Howlett M., Cashore B. (2014) Conceptualizing Public Policy. In: Engeli I., Allison C.R. (eds) Comparative Policy Studies. Research Methods Series. Palgrave Macmillan, London; Cornelius M. Kerwin, Scott R. Furlong, Rulemaking: How Government Agencies Write Law and Make Policy, SAGE publications, 2019. [2] Cornelius M. Kerwin, Scott R. Furlong, 2019. [3] Pauline Westerman, Outsourcing the Law, Edward Elgar, 2019. [4] Overzicht van doelen in het milieubeleid 1 15-11-04, kst 28663, 28, b1. [5] http://www.biodiversiteit.nl/nederlandse-overheid-biodiversiteit/biodiversiteitsbeleid-vanaf-2012/ [6] https://www.eoswetenschap.eu/natuur-milieu/hoe-redden-we-de-biodiversiteit [7] Pauline Westerman, Outsourcing the Law, Edward Elgar, 2019. [8] Westerman 219. [9] Andrew Jonhson, Foucault: Critical Theory of the Police in a Neoliberal Age, Theoria, 61(141), 2014, pp. 5-29. [10] The history of environmental policy is instructive in this regard, it is aimed at making care for the environment a subject in which we are all enlisted and which is not only seen as a task of government agencies. As the most well known Dutch National Environmental Policy Plan (NEPP) put it: “we are all environmental managers”. That also means we can all be questioned whether we live up to that responsibility.