“If trust were a colour, it would be grey”

2021 Crisis of Confidence - Book Review Cover Image

The crisis of confidence in legislation – a brief review

By Maria De Benedetto, Nicola Lupo and Nicoletta Rangone (eds) Nomos Hart 2020

The Rome Conference that gave birth to this excellent book took place before the start of the Pandemic. The topic would turn out to be even more prescient and important than the various expert authors could have predicted at the time. This is an important work that should be widely read by anyone involved and/or interested in law-making and regulation at any level. I would also recommend it to anyone trying to make sense of the rise of populism and pondering the future of democracy. It makes sobering reading indeed.

Trust is the main component of social capital

As De Benedetto points out in her introduction, trust is the main component of social capital and operates at every level of social life affecting human relations. She reminds us that trust always presupposes incomplete information. Hence the title of this blog, which is a direct quote. The “white” condition means complete information and “black” no information at all. Trust is needed to fill the knowledge gap in the “grey” condition. Trust is what is needed to overcome fear and to make taking the risk involved acceptable. Given that our world has become so complex, and despite our increasing knowledge, often unknowable, trust plays a key role in society. So, what are the consequences of the decline in trust in institutions documented by the annual Edelman Trust Barometer and illustrated by the rise of populism?

A more specific question that has been playing on my mind for the past year: how has trust in government or the lack of it influenced compliance with social distancing, mask wearing and other pandemic related regulations? Also, what other factors relating to regulation have influenced how people behave? Although the Pandemic is not the focus of the book (it is mentioned as the editorial process was ongoing when it began) there are plenty of answers to these questions in this volume.

Institutions need public trust in order to function properly. Addressing various aspects of the decline in trust in public institutions, it asks important questions. Can better legislation and regulation help to reverse this decline? What role has legislation and regulation played in that decline? Have the numerous better regulation initiatives undertaken by the EU and some national governments improved the situation? Does transparency increase or decrease trust?

Many of the chapters focus on the European Union and make interesting reading in the wake of Brexit. In addition to analysing various aspects of the problem, some of the chapters pose and debate various solutions. Specifically, Helen Xanthaki discusses how the EU could use its legislation to speak directly to EU citizens and how to go about it. One only wishes that her ideas had been taken up years earlier to avoid the sad saga of Britain leaving the EU.

A roadmap

Xanthaki sets out a roadmap to “loyalty and trust” which begins by identifying the different categories of users of EU legislation (EU citizen lay people, sophisticated non-lawyers who use EU legislation in their work and finally lawyers, judges and senior law librarians. These groups each have different capacities to understand, different questions and different usages or purposes for reading legislation. Step 2 involves restructuring legislation and pitching different sections at these different user groups in a language they can understand. Reading her suggestion (as a former lawyer who believes in plain language) I ask myself why all legislation hasn’t been written this way already. It is worth setting out here as I take it from the book::

Part 1 would speak to lay people, giving the main regulatory messages and conveying the essence of the legislation. For example, what is the reason for legislating on this topic; how does the legislation benefit citizens and enterprises and what are the rights and obligations given under this law. Perhaps if people were better able to understand the benefits of EU legislation before losing them, we wouldn’t be where we are today in the UK.

Part 2 would give further details in balanced language as well as list duties of Member States and

Part 3 would deal with issues of legislative interpretation, procedure, application of particular relevance to legal professionals.

Re-establish lost channels of communication

The benefits of this approach as described by Xanthaki would be to re-establish lost channels of communication and make citizens participants in the process. This would enhance the legitimacy of EU institutions and reinvigorate democracy, for the long-term benefit of the EU and its citizens. Significant improvements have been made in the EU’s regulatory process, as explained in detail in other chapters of the book, however I feel this point about a lack of direct communication between the EU and its’ citizens is particularly important.

The amount and complexity of laws and regulation has increased significantly and this increase has created more distance between citizens and the state as they feel burdened without understanding the benefits. Clearly the number and complexity of regulations must be rationalised at all levels of government. The impulse to add more regulation as the answer to every problem that arises must be resisted. Paradoxically, it is precisely this resort to formalistic rules to fill the trust gap that has contributed to widening the trust gap.

As Florentin Blanc points out in his chapter, we are in a cycle of distrust. His research shows that outcomes are influenced by different regulatory delivery systems. Systems that emphasize support for voluntary compliance, that use diverse and complementary tools and that are based upon risk proportionality perform better in terms of delivering desired outcomes. He cites my co-author Professor Chris Hodges OBE for evidence that deterrence is an insufficient tool to address serious non-compliance due, for example to toxic corporate cultures. And Blanc describes how one of the purported solutions to the problem of corruption in public officials, which is to remove their discretion and require them to report and enforce against all violations is part of the problem, rather than a solution. How can you increase trust between a regulator and a business that is trying to do the right thing and may need help when any non-compliance that is noticed by the regulator MUST result in a fine or other penalty? The assumption that all non-compliances are intentional is incorrect and dangerous. As pointed out earlier given the complexity and amount of regulation, often applying to the same activity, much of the non-compliance that results is the result of lack of understanding, skills and/or resources to comply. Also in the past twenty years behavioural science research has improved our understanding of why good people do bad things.

A sobering point

There is so much more in this book that warrants attention. I would like to end with a very sobering point made in the conclusion by Coglianese. His theme is the law as scapegoat. He points out that it is easy to blame the law for every negative social condition people are experiencing. Most populists do this, paradoxically in order to gain power. Scapegoating is easier than building coalitions to tackle complex problems and take unpopular decisions he rightly says. Coglianese also explains that law shares many features with migrants: it is foreign to most people, they are both relatively powerless to defend themselves and denigrating them gives people a sense of superiority. However, scapegoating the law and its institutions further decreases trust even further, and ultimately clears the way for the rise of authoritarianism. Yes, nothing less than this.

Many people have raised the alarm over the denigration of US institutions that has accelerated over the past four years, and drawn parallels with the rise of National Socialism in the 1930s. If we do not heed the lucid and profound analysis of the causes and manifestations of the crisis of confidence in legislation outlined in this book; and take steps to address them, many of which are outlined here, we may find that our democratic institutions are damaged beyond recognition. At no time in history has humanity needed solutions that rely on cooperation across the entire planet as we do now. Those solutions can only be built on trust in the public institutions that will have a major role in delivering them. So, if this book appears to be only an academic exercise, think again.

About The Crisis of Confidence in Legislation

The Authors
  • Maria De Benedetto is Professor of Administrative Law at Roma Tre University.
  • Nicola Lupo is Professor of Public Law at LUISS Guido Carli University, Rome.
  • Nicoletta Rangone is Professor of Economic Law at LUMSA University Maria SS. Assumption of Rome.
The publisher’s summary

This book contains the discussions that took place at a conference that gathered together experts in the field. The book is made up of 4 sections: Confidence in Legislation as a Regulatory (and Administrative) Problem; Improving Confidence in Legislation Via Better Regulation Tools; Responsibility of Parliaments in Improving Confidence in Legislation; and Confidence in Legislation and Enforcement.