What Are Law and Policy
At their most basic, the terms policy and law can be defined as follows:
Policy: a course or principle of action adopted and proposed by an organization or individual.
Law: a rule or code of conduct formally recognized by a community or other authoritative group, such as a government.
Laws and policies share some similarities, but there are key differences between them —differences that are particularly pertinent in the context of government agencies and relating to those agencies’ interactions with the public . For starters, laws are established by governing bodies or organizations rather than usually being expressed as a specific course of action. They provide a formal relevant standard and ideally carry out the will of the people or other such entity. Policies, on the other hand, are typically created by organizations and government agencies right in response to certain issues or needs. Thus, policy has to do the process of planning, establishing standards and guidelines and addressing issues and problems.
Some Differences Between Law and Policy
The core differences between law and policy rest on a few main points:
Enforceability: A law is considered to be enforceable, whereas a policy is not.
Specificity: Policies are more specific in nature than laws.
Formal requirement processes: The process for a law to become a law takes longer than the process for a policy to be implemented.
A law can be enforced in a court of law. If it is broken, charges can be filed against the lawbreaker. In contrast, policies do not have legal power. Instead, they are guidelines that govern an organization toward the outcome of a specific goal.
Policies exist to help organizations manage their resources in a way that benefits them in the long term — financially, legally or otherwise. Laws create consistency in the legal system and the way that it is carried out. Rulings are made on a national and state level regarding crimes and punishments.
Similarities and Interaction
While law and policy are fundamentally different, they are not mutually exclusive. In fact, policy-making has become an important fixture on both domestic and international stages. It is difficult for nations, states, or even municipalities to regulate or govern a subject matter without first implementing some form of policy-making. Thus, these two concepts do not only exist side-by-side, but are frequently adopted in conjunction with one another. A prime example of this can be seen in the creation of domestic law. More often than not, the law will be rooted in or at least informed by some kind of policy consideration. Indeed, the concept of law is often used as an abstraction for both law and policy. Therefore, policy is a substantial means to enforce law. Conversely, not only does policy influence the enactment of law, but the reverse is also true. Similar to how policy is used to inform the law, the law is also a principal contributor to policy-making. Simply put, policy cannot be enforced in any meaningful way without the law. There are countless examples of this phenomenon. One specific example is how the law of contract influences policy advocacy for consumer safety. Strict liability often finds its source in law, but may influence so many other areas. Thus, it is clear that these concepts are intertwined to a significant degree.
Laws Versus Policies
One reason this area can be so confusing is because law and policy tend to be used interchangeably in the rest of the world. With that in mind, I’ve tried to come up with examples from other jurisdictions around the globe to demonstrate this distinction.
Law: Municipal law (South Africa) In South Africa, it is an offence for any person to engage in a business as a debt collector unless that person is registered as a debt collector in accordance with the provisions of the Debt Collectors Act 184 of 1998.
Policy: National policy (Japan) The major banks in Japan have adopted a commercial policy under which, in principle, there are no limitations, with respect to each major bank’s own standard, on the value of securities that each major bank will accept for each investment trust that it sells .
Law: Executive compensation laws (Germany) Under the German Corporate Governance Code established under the Aktiengesetz, publicly traded corporations must adopt specific rules considering "the necessary discretion for the supervisory board in ordering compensation that is adequate for our circumstances and taking account of what is suitable for this type of business" when evaluating executive compensation in contrast to a competitors.
Policy: Department policy (Australia) Under Australian Health Protection Committee rules for handling infectious crowds by Police departments as part of their Workplace Health and Safety Policy, Police must have an officer who has received appropriate training in the handling of infectious crowds, including the use of personal protective equipment, working in close proximity to that crowd at all times.
Impact on People and Government
Beyond the direct consequences for individuals, law and policy establish, reinforce and restrict social norms, affect political and business decisions and sometimes manipulate behavioral changes within communities. One of the more powerful incentives sometimes provided by law or policy is generally referred to as the "policy nudge." For example, a government may ensure a greater compliance with a desired health-related behavior by decree that a retailer can charge an increased premium if a customer selects certain less-healthy alternatives, or alternatively, give a monetary discount to someone who selects a more healthy option. This behavior modification is well documented and is just one step removed from societal manipulation.
Law and policy can also affect the political landscape. From the country level on down to the level of a local board of education, elected officials and appointees are generally bound by law to make certain decisions unless they waive their rights as a governing body through some formal procedure. Politics influences how much law restricts or liberates an elected official. Some assertions of authority are politically correct, some are politically expedient, while others are politically unpopular. Because law tends to have a longer shelf-life, the decisions by elected bodies – or the whims of unelected bodies – are constrained and somewhat guided by these statutes, rules, ordinances and regulations.
Policy decisions that are not reflected in law can be even more tenuous. Often, elected officials enjoy the luxury of never quite having to commit to their decisions by including them in an administrative rule or a governing ordinance. The decisions behind such policies, though, are often equally as consequential, as they can determine which programs receive funding, direct the allocation of resources to certain demographics, and proceed where there was once only a choice of inaction.
Law and policy decisions have a trickle-down effect in every facet of modern society. People tend to define the actions, behaviors, words, and decisions of those around them through the lens of law and policy. As such, they become part of the decision-making policies we all make subconsciously. Much like the proverbial tree falling in the forest when there was no one around to hear it, if you make a decision that has no impact without law or policy, then it is as if the decision never existed.
Future of Laws and Policies
As we’ve explored throughout this post, law and policy are inextricably linked, yet they are in no way interchangeable. The law, typically through statutes and case law, provides a prescriptive baseline of conduct for individuals and organizations. This is essential for maintaining order and providing stability in our society. In contrast, policy, which is influenced by political and social factors as well as the needs of the constituencies involved, tends to be more fluid by nature, evolving as the circumstances and demands of the people change.
While law and policy are distinct concepts, their rapid evolution and intersections invariably impact one another. As the needs, interests, and desires of stakeholders evolve over time, both the dictionary definitions and the social perceptions of law and policy have the potential to shift as well, and frequently do. For example, we have learned that the concept of law is not limited to codified statutes and judicial rulings. The law increasingly refers to a set of conventions and norms that inform human behavior, where compliance requires voluntary adherence in many cases. This objective, social understanding of the law stands in contrast to the more commonly-held view, which sees law as a system of rules that is contained within the confines of a nation’s legal codes.
Our analysis has also revealed that policy increasingly reflects a more active role for the public in government decision-making, including but not limited to the ability to participate in policy decisions related to the administration of the law through comment periods and the gathering of public input . Similarly, policy development continues to be driven by changing social norms and forces, such as diversity, inclusion, and sustainability, among others.
Focusing on the future, emerging trends may cause the lines between law and policy to further blur, with the two becoming even more inextricably linked. First, as noted above, technology will continue to play a more significant role in shaping both law and policy at the local, national, and global levels. Moreover, with the ability to freely and directly communicate with their government or other institutions online, citizens will increasingly become involved in the political process, thereby gaining more influence over policy.
Second, by gaining access to the same information from which policy makers draw conclusions, citizens will become better-informed voters and community members. As a result, an all-in-one public facing portal that clarifies the law, the complementary policy considerations, and the reason behind the law and policy, may emerge in the near future. Third, a new age of artificial intelligence, with its increased sophistication and evolving capabilities, will begin to make its mark on both law and policy and will add another layer of complexity to this interrelationship.
As the world continues to grow and evolve, so too must our understanding of our individual and collective roles within the law and policy-making processes. It is our hope that this insight not only assists in understanding the dynamic interplay between these two fundamental concepts, but also aids in effectively participating in their respective processes by becoming familiar with the rights and responsibilities that shape them.