Vol. 8 No. 1 (January 1998) pp. 19-22.

RULES AND GOVERNMENT
by Robert Baldwin. Oxford: Clarendon Press, 1995. 331 pages.
Cloth. ISBN 0-19-825909-3.

Reviewed by John Blakeman , Department of Political Science, Baylor University.
 

The Oxford Socio-Legal Studies series adds yet another volume with the publication of Robert Baldwin's RULES AND GOVERNMENT. According to the general editor's introduction, Baldwin's book marks a new beginning for the series, which now will focus on a wider institutional basis and extend its range of academic interests. Baldwin's book furthers that goal of the series because it addresses "the problem of rules and regulation ...[and] the idea of rules as a governmental tool." Moreover, as the editor notes, "the author's purpose is to weigh up the advantages and disadvantages of rules in an effort to encourage their more discerning use within government." Thus, not only is RULES AND GOVERNMENT a scholarly book focusing on several aspects of administrative rules, it is also intended to be somewhat of a practical guide for those actually devising and implementing rules.

Chapters 1 and 2 are brief overviews of types of rules used by government. Baldwin notes that "this book is concerned with rules as tools of government," (p. 3) and defines rules as "general norm[s] mandating or guiding conduct or action is a given type of situation." Parliamentary legislation creates primary rules; government (as distinct from Parliament) creates secondary and tertiary rules. As Baldwin puts it, "judging when it is appropriate to employ rules within government involves complex questions of design and strategy. Potential rule-users have at their disposal a host of different rule-types." After this, one of Baldwin's stated concerns throughout his work is to "identify such benchmarks and the conditions under which rules, of different types and employed in different ways, may enhance rather than detract from the quality of governmental processes." (p. 15)

Chapter 3 of RULES AND GOVERNMENT is where Baldwin's argument and analysis really begin. It concerns "whether, when, and how rules may best contribute to good government." (p. 17) Baldwin focuses on one central question: should government activity be controlled by rules or discretion? He argues that "assessing governmental processes involves ... far broader issues than are encompassed in the 'rules versus discretion' debate." As he puts it, the legitimacy of governmental processes should not be judged by rules or discretion, but by "whether they further certain identifiable values." Those values, or justifications, are as follows: legislative mandate, accountability, due process, expertise, and efficiency. These five values are defined and discussed in good detail, but brevity prevents that level of detail for this review. To a certain extent they are self-explanatory.

For Baldwin, "these values are recognized and given meaning according to a discourse of justification (or legitimacy) which attributes relevance to certain forms of argument in discussions of legitimacy and which distinguishes these from other forms of argument ... language users are able to separate legitimacy claims from moral, legal, constitutional, or even aesthetic assertions." (p. 47) To justify the choice of his five values, Baldwin also comments:  

Why the five rationales or values described? The answer is that these are the rationales that are employed and have currency: that an analysis of justificatory arguments will reveal a consistent resort to these rationales--at least in Britain and North America (p. 47).
 
Baldwin's argument that his five legitimacy claims are justifiable because they are "employed" and "have currency" raises questions, not least of which is: "employed where and by whom?" Baldwin argues these legitimacy claims apply to Britain and North American (Canada and the United States?), but the sources supporting his arguments are generally derived from British studies and case-law. Thus, the extension of his five legitimacy values to North America (at least to the United States) are somewhat suspect. Indeed, subsequent chapters in which Baldwin employs this framework focus either on British examples or the European Union. He does not apply his framework outside of these contexts, so whether the five legitimacy claims have "currency" elsewhere is not shown, nor it is clear that his framework can apply to other administrative systems.

In Part II of RULES AND GOVERNMENT Baldwin focuses on "how governmental rules can be designed and enforced, particularly in the sphere of regulation." (p. 126) In Chapter 5 he develops a case study of the evolution of the British system of health and safety regulations in order to describe "how mistakes in rule design can occur." From the standpoint of policymaking and administrative law in Britain, Chapter 5 is interesting, as Baldwin offers an extended discussion of the Robens Report of the early 1970s. The Robens Report led to the Health and Safety at Work Act of 1974. Baldwin gives a well-thought out critical analysis of the process of creating government rules in this specific policy area. As he concludes,

"[the Robens experience] demonstrates quite vividly how a mistaken analysis of regulatory problems can produce quite unrealistic approaches to rules and expectations of rules. It indicates the importance of understanding the motivations of those affected by rules. It shows how those designing regulatory systems can quite easily make ill-founded assumptions about the potential of certain forms of rule-making processes." In the subsequent chapter, Baldwin examines the relationship between rules and enforcement strategies, and focuses on several questions. Why do rules often fail to produce compliance? How can rules conducive to compliance be designed? What impedes the making of rules conducive to compliance? Part of this chapter is based on Baldwin's investigation of enforcement of health and safety regulations in factories by the Factory Inspectorate of the Health and Safety Executive. Baldwin bases his analysis on "information gained from field observations, interviews, and analysis of records and secondary sources." (p. 142) Baldwin offers no clues as to the numbers of interviews, types of field observations and places where these activities were conducted, among other things. As a result, the empirical analysis he offers to bolster his argument is left wanting because of the lack of rigor in his methodology. Nevertheless, this chapter is one of the better ones in the book. In it Baldwin gives a good overview of the enforcement of complex health and safety regulations. He also details how administrators secure compliance with these regulations through several different strategies, ranging from prosecution to education. As an insight on the regulatory process in the British political system, Baldwin's analysis here is useful.

One of the final chapters in RULES AND GOVERNMENT is titled "Rules and the European Union." For the EU, "there is an array of rule types that can be employed in pursuit of Union objectives. Choosing among different kinds of rules requires that European rule makers and domestic officials make a number of judgments. Such choices, in turn, give rise to legitimacy concerns." (p. 219) The chapter addresses three main themes. First, Baldwin assesses the types of rules used in the EU. As he puts it, "thinking on rule-choices is by no means static in the Community. An examination of approaches to rule-making reveals nothing more clearly than a process of development on the part of policy-makers and legislators." (p. 231)

Second, the chapter includes a section on the enforcement of European Community rules, specifically health and safety regulations in the workplace, in which Baldwin chooses six Member States (Britain, France, Italy, West Germany, Spain, and the Netherlands). Baldwin does not state why these six were chosen, much less why he refers to Germany as "West Germany." (p. 257) Finally, Baldwin assesses EU rules based on his five "benchmarks" outlined previously.

The chapter on rules and the European Union is useful; certainly those investigating policy making at the EU level would find it of interest. Yet, there is simply way too much crammed into one chapter here. Consequently, Baldwin's analysis seems underdeveloped, especially in comparison with previous chapters. For instance, his treatment of the enforcement of health and safety regulations in six member states, while certainly intended as an overview, seems shallow, simply because there is too little information. Moreover, his analysis of the legitimacy of EU rules again is underdeveloped; his application of the five legitimacy values should be expanded significantly. To be sure, Baldwin clearly states that he is only making a "number of general points" concerning the legitimacy of EU rules, but the overly general sketch seems out of place with the rest of the book.

In all, RULES AND GOVERNMENT is a good analysis of government rulemaking, at the least in the context of Great Britain. Baldwin defines a useful framework for assessing the legitimacy of rules. His five measurements (legislative mandate, accountability, due process, expertise, and efficiency) are well developed. His justification for them, that they have "currency" in Britain and North America, is troubling, since he really does not support that assertion. Nevertheless, his framework is still relevant; indeed in its application Baldwin concludes that "it is remarkable how weak many potential claims to legitimacy are." (p. 300)

Baldwin's book fits in with best with graduate level courses on British politics, administrative law, and the European Union. For a graduate course on British politics, Baldwin's case-study on the Robens Committee and the creation and enforcement of health and safety regulations is a good account of the British regulatory process. For courses on administrative law, his chapters on the types of rules and how they are legitimized, in the context of Britain, is useful. Finally, for EU courses his chapter on rules and the European Union is good, and thought-provoking.

Does the book serve its intended audience? According to Baldwin, one intended audience consists of potential "rule-users," presumably those in government who devise and enforce rules. The book may be a little too abstract for bureaucrats, and it is hard to imagine "potential rule-users" outside of the British Civil Service deriving epiphanies concerning the "more discerning use of rules," given the book's grounding in British administrative law and policy. However, the book was not solely intended for "potential rule-uses," and parts of the book should pique the interests of students of British politics, administrative law, and the European Union.


Copyright 1998