1
Introduction: Governing with Rules

At first glance the world appears to be regulated by a host of different kinds of rule. The park by its by-laws, the city by its codes of practice, and the public corporation by its statute law. A second look, however, dispels the notion that all aspects of life are so tightly governed. Some activities are not covered by rules at all, large areas of action are unregulated, and in many fields the supposedly governing rules are bypassed, or compliance is so lacking that intended results are not achieved. Those engaged in government may proceed by means other than by the application or promulgation of rules. They may act executively or managerially, by means of decisions linked to inquiries, by consultations, mediations or arbitrations, or they may establish a variety of procedures for dealing with issues on a case-by-case basis. In some sectors, constraints on behaviour operate but not in the form of rules -- thus other, perhaps political, cultural, or social systems of controlling, checking, and scrutinizing may take effect. Why different processes or controls are in operation is often not immediately explicable. 'What', one might therefore ask, 'can best be done according to rules?'

This book is concerned with rules as tools of government1 and examines a number of central issues surrounding governmental

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Distinguishing governmental from non-governmental functions is of course, problematic. Here a function will be treated as governmental if it is such as to require justification by reference to democratically established institutions. That opinions may differ as to the proper province of government is no more clearly demonstrated than by the 'contracting state' -- see I. Harden The Contracting State ( 1992); J. Mayne, Public Power Outside Government (1993) 64 Pol.Q. 327; N. Lewis, "The Citizen's Charter and Next Steps: A New Way of Governing" ( 1993) Pol.Q. 316. On the public/private law distinction see e.g. J. Beatson, ' Public and Private in English Administrative Law' [ 1987] PL 34; P. Cane, "Public Law and Private Law: A Study of the Analysis and Use of a Legal Concept", in J. Eekelaar and J. Bell (eds.), Oxford Essays in Jurisprudence 3rd ser. ( 1987); Woolf LJ, Public Law, Private Law: Why the Divide? A Personal View [ 1986] PL 220; I. Harden and N. Lewis, The Noble Lie: The British Constitution and the Rule of Law ( 1986); P. Birkinshaw, I. Harden, and N. Lewis, Government by Moonlight: The Hybrid Parts of the State ( 1990).

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