22nd December 2021
This is just a brief post today about the difference between law and policy, and the relationship between the two.
First: the two are different.
Law is (ultimately) about what one can enforce or have recognised by a court.
Policy is about achieving certain outcomes that will not be (or may not be) achieved but for such policy.
Laws are often part of a policy – along with resources, prioritisation, organisation, communication and leadership.
And policy is also sometimes part of law: a court may, as a matter of ‘public policy’ avoid certain outcomes, such as preventing open justice or access to the courts.
You will see the law/policy balance in many areas, if you look carefully.
The difference between guidance and prohibitions in public health (and the blurring of the line).
Or the extent to which post-Brexit policy (or lack of policy) depends on changes to what was agreed in the withdrawal treaty and the Northern Irish protocol.
Or the current small-c approach of the Supreme Court to (supposed) judicial activism.
Or how supporters and opponents of abortion in the United States are going about legislating and litigating in ever-more ingenious ways.
For me this relationship between law and shaping policy, and between policy and shaping law, is fascinating.
Black letter law is dull – it is akin to reading sheet music and attempting to create the tune in your head.
Law, like music, comes alive in its performance.
And other than very technical areas of the law, law is about changing (or not changing) the world about us, so that certain outcomes happen instead of others.
So this is why I commentate about law and policy – it is a way of practically understanding what is (and what is not) going on.
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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
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Merry Christmas David. I’ve very much enjoyed your analyses over 2021.
I find your insights fascinating, David, and certainly most illuminating for the lay person (like myself). I also greatly enjoy the way in which they are expressed: if they were dry and (dare I say it) ‘legalistic’, they’d not draw one in to the degree they do.
I’ve learned so much from this Blog. Thank you, David.
With best wishes for the festive season and looking forward to many more insights in 2022.
‘law makers should not be law breakers’
policy makers should do their best to walk the talk…..
thank you for all the food for thought you provide
have a healthy and productive 2022!
How can democracy work when the majority of people are ignorant of the way in which we are governed? How can we match our social and economic preferences to the political offers when we do not know if those offers can be delivered? And then there is the lying. Your commentary explains law and policy in such a way that their impact on individuals and society becomes clear. I am certainly less ignorant than I was before I found your twitter account! I hope I am becoming a better citizen. Thank you for the generous way in which you give your time to the calling you clearly have.
Judges should neither be law makers, nor policy makers.
Perhaps a deep discussion of the historical role of the courts might be interesting. They certainly were not conceived as a way of circumventing will of the Sovereign or Parliament.
Law and policy seem to me to be now merged in our fast emerging fascist state.
Could Common Law principles not now (crossed fingers and hoping) be relied upon to prevent this?
The principles behind the brilliant British Common Law tradition grew out of the desire to find the most just, principled and practical way to resolve disputes between individuals. These primarily revolved around property and commerce.
They do not translate easily into an environment where the disputes are between ideologically driven groups and the government. The courts are being used to make obviously political decisions as in the cases of defining and adjudicating so-called human rights. For example, a very recent case in Canada has a court in Ontario striking down as unconstitutional on human rights grounds, a Provincial Government requirement for all teachers to pass a mathematics test before qualification on the grounds that it was unfair and discriminatory to minorities. Presumably minorities are ignorant of basic mathematics, an idea which is inherently racist if you think about it for just a moment. The interests of the students in having competent and capable teachers appears not to have been an important consideration. Is this the direction we want to go as a society?
“Law, like music, comes alive in its performance.”
It is because you appreciate this that your commentaries are such a pleasure to read.
“Law, like music, comes alive in its performance”
Yup. I’ve been lucky enough to see some fantastic advocacy play out right before my eyes, words weaved like a tapestry, shaping the fabric of reality itself (I will always remember one spectacular piece of advocacy I saw in my Ushering days, where a skilled defence counsel at a sentencing hearing managed not only to keep her client out of Youth Detention, but secure him an Absolute Discharge. I’m sure our tabloid press would scream blue murder about the outcome, but the way she argued her case was phenomenal, and her reasoning flawless.)
I note the comments.
For me the law, and indeed policy, should be conjoined: both should be about doing what ought to be done, based on honesty, decency, morality and the truth.
From my experience – essentially a ‘farm-boy’ who tried to do what is right in terms of the law (family matters – estates etc) – I discover that all the above are characteristics are nothing more than sound-bites, in the reality of execution.
Dirty tactics, sharp practice, perjury, masonic connections with judges and opposition litigants and their legal representatives is the reality.
No matter what the law or policy directs, corruption will always win the day.
So, it matters not that one may concentrate on the wording of the law or policy, or think it can be improved, it matters not a jot in a corrupt system or at least corrupt individuals.
My observance of all the qualities of decency has made me an easy victim in this scenario. It has destroyed my life, every dimension and aspect of my life.
If anyone is genuinely concerned about law and policy, they should not be focusing on the structure, but on the reality of the exercise.
If not, no changes to the law or policy in structure will result in justice.
Thank you for another superb year of insightful commentary. I have learnt a great deal. It is always delivered succinctly and with a delicious dash of humour. I don’t get this wonderful combination anywhere else. Three cheers!