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Unpublished Paper
The Implementation Gap: What Causes Laws to Succeed or Fail?
(2013)
Abstract
It is important to go behind the “paper systems” many countries and private sector actors have created to manufacture the appearance of commitments to responsible economic activity, environmental protection and social justice. This produces the need to penetrate the veils that mask governments’ “apparent compliance” with the terms of sustainable development, and to be honest about the inability of voluntary codes of practice to shape the behavior of business and government.
Implementation requires effective systems to carry out the law and policy mandates. Laws and policies are often poorly designed or deliberately sabotaged in their creation, but in many instances the ineffectiveness occurs at the level of the implementing agency or ministry. Inadequacy and sabotage at this level tends to be more invisible than at the point of enactment where politicians seek to take credit for their “positive” actions. Laws and policies are sabotaged both in a law’s creation and in their application. One common form of sabotage is that an intended gap is built into the formulation of legal standards that use law to create the appearance of law without creating “real” law.
A common strategy is that the language is made to appear powerful and eloquent on the surface in the form of a legislative “sound bite” while containing qualifications that dilute and impede the actual effects of implementation. This can be done by imposing exceedingly high (or expensive) standards of proof on parties seeking to enforce the law through private actions. Or it may require complex processes that take long periods of time, delay outcomes and impose significant financial costs. Another strategy incorporates assumptions of validity regarding agency decision-making, or requiring levels of empirical proof in situations most appropriate for political, preventative and legal standards of validity that operate on different levels than that of hard science.
Even if the tests of validity applied to a legal standard or policy are agreed on, it is common practice to sabotage the efficacy of a law at the executive and regulatory levels where laws are implemented and enforced. This is done by underfunding essential functions necessary to implementation. The law may impose significant duties on the entities being regulated but construct a system in which the staffing and other financial resources required for monitoring, processing and implementation are grossly inadequate. Failure to support the core costs of implementation results in inadequate staffing of the components required to make the system work. This occurs on the level of investigation, monitoring, training, inspection and enforcement.
Keywords
- Sustainable Development,
- environment,
- economic development,
- strategy,
- business decision making,
- governmental decision making,
- WTO,
- Global 2000,
- sabotage of law,
- environmental law,
- corporate social responsibility,
- corporations and sustainable development,
- Global Compact,
- United Nations and sustainable development,
- Implementation Gap,
- effective law and policy,
- sabotage in law making and enforcement,
- bureaucratic behavior,
- corruption,
- “small wins”,
- factors for success and failure,
- socially responsible investment,
- Sustainable Development Architecture,
- Nikolai Kondratiev,
- Kondratiev “Long Waves”,
- transnational corporations,
- Global Competitive Hyperspace,
- globalization,
- need for economic growth,
- “Small is Beautiful”,
- business as demand stimulation,
- Precautionary Principle,
- oil dependence to alternative energy,
- turf protection,
- accountability
Disciplines
Publication Date
2013
Citation Information
David Barnhizer. "The Implementation Gap: What Causes Laws to Succeed or Fail?" (2013) Available at: http://works.bepress.com/david_barnhizer/79/