The Law as a Policy Resource: Some Scattered Thoughts

The aim of the chapter is to clarify the importance of conceptualizing the law as a resource in the policy game, and the consequences of doing so. Even if the concept of resource has been more or less ignored by the more recent scientific debate, it maintains a fundamental role in explaining the patterns of influence within the policy games. Within this conceptual framework, however, the vast majority of scholars tends to consider the law outside the reach of the actors, as something that constrains their behaviour, defines their roles, limits the access to the policy arena, etc. This is due, I contend, to the confusion between the concept of jus and the concept of lex. The distinction exists in all the languages (droit and loi in French, diritto and legge in Italian, recht and gesetz in German, derecho and ley in Spanish) while in English the same word is used to define the lex (a decision taken by a legitimate authority aimed at constrain the behaviours of individual citizens, public and private organisations) and the jus (a corpus containing the principles according to which the lex has to be interpreted). If the jus is correctly considered as an element of the context within which the policy is decided and implemented, the lex (the law from now on) has to be considered as a resource of the actors. But considering the law as a resource has other consequences. First of all that if no one wants to use it (either because the costs of entering the policy game are larger than the expected benefits, or because other actors have more resources, or for any other reason), then it doesn’t play any role. In the second place the law can substitute or can be substituted by other types of resources (money, political consensus, knowledge). Finally because some of the actors, the public authorities, can change the law in order to be able to realise their goals, thus increasing their resources in the policy game. This conceptualisation, deeply rooted in the European tradition of civil law, is of paramount importance in using public policy analysis for solving real world problems, mostly at the micro level, and in the interpretation of empirical evidence as shown by the different examples cited in the paper.