Regulatory Pragmatism, Legal Knowledge and Compliance with Law in Areas of State Weakness

By Ostermann, Susan L. | Law & Society Review, January 1, 2019 | Go to article overview

Regulatory Pragmatism, Legal Knowledge and Compliance with Law in Areas of State Weakness


Ostermann, Susan L., Law & Society Review


1.Introduction

The legal maxim ignorantia legis nonexcusat holds that ignorance does not excuse one from blame for violating legal dictates; it also admits, albeit somewhat inadvertently, that many remain unaware of applicable laws. Despite this, law literature1 has rarely explored the empirical relationship between legal knowledge and compliance (Feest 1968; Kim 1998; Rowell 2018; Winter and May 2001). A full understanding of this relationship is important: law is the primary means by which states create order and shift individuals from social norms to legal norms, or from old legal norms to new. If individuals are unaware of a legal norm, they are unlikely to comply with it and the state may fail to achieve desired outcomes. Knowledge of the law is, therefore, essential to compliance in the many situations in which law goes beyond social norm codification.

In this article, I explore how weak states achieve compliance in places where target populations have limited means to learn about the law themselves and the main channels through which the state communicates legal requirements are beset by principal-agent problems. To do so, I collected data in very similar, adjacent districts in India and Nepal; I then examined compliance in contexts in which legal norms and social norms differ-the only situation in which we can analytically determine whether a state has the independent ability to produce compliance. The India-Nepal border provides a context in which the legal rules and those targeted by them are similar, but state regulatory design and implementation strategies differ. Specifically, with respect to the conservation regulations examined in this article, the Indian state's approach was legally doctrinaire, emphasizing deterrence, whereas the Nepali state behaved pragmatically, implementing a system that worked around principal-agent problems between state and bureaucrats to foster accurate legal knowledge.

The specific compliance behavior I examine involves forest conservation policies in national parks that span the border between Nepal and India, as depicted in Figure 1 above. In both India and Nepal, the collection of wood on park land is prohibited, yet, as shown in Figure 2 below,2 observed compliance rates are significantly higher in Nepal. What can explain this variation if many locals on both sides of the border rely on wood for cooking and heating and both the Nepali and the Indian states lack the capacity, at least in this area, to carry out large-scale enforcement operations?

My data indicate that states that employ regulatory pragmatism- understood as a flexible approach to the design and implementation of a regulatory system that is specifically adapted to regulatory context-can foster legal knowledge, even in the absence of significant state capacity. Accurate legal knowledge is then strongly associated with compliance. The Nepali state's use of regulatory pragmatism led it to delegate its authority to implement policies related to the sustainable management of government-owned forests to unorthodox, nonstate actors whose interests were more aligned with the state's than those of the state's own bureaucrats. This, in turn, allowed the Nepali state to "punch above its weight" and foster widespread legal knowledge-and compliance-in a context in which the presence and power of the state is low. In contrast, the Indian state used a traditional enforcement approach and achieved only limited legal knowledge and compliance.

The article proceeds as follows: first, I examine legal knowledge acquisition and provide a foundation for the concept of "regulatory pragmatism." I then go into detail regarding research design, demonstrate how this design can answer a long-standing question in the literature and lay out my hypotheses. Finally, I explain the methods used to test those hypotheses, present my findings regarding the efficacy of delegated enforcement and information transmission through local leaders, and discuss the implications of both. …

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