Tackling the ‘implementation curse’

Why are certain nations able to implement laws more efficiently than others? In India’s contemporary political economy, where, consistency across different law (and policy) enforcement has remained a particular struggle, tackling what can be referred to as ‘the implementation curse’ remains key.

For constitutional democracies, two elements remain critical for its upholding (and further safeguarding of constitutional values), that is, an efficient administration and, the other, a dignified process in governance. An inability to ensure the first, naturally affects the other. Richard Thaler, renowned for his work in behavioral economics, has called this as the ‘sludge’ problem, where laws and policies often find themselves difficult to be actualised – due to an inefficiently performing bureaucracy, or in an poorly incentivised bureaucratic culture (spelling the ‘implementation curse’).

A sovereign, lacking both the agency and will to enforce laws can better address this‘curse’ either by: a) cultivating an environment of self-enforcing behaviour amongst citizens and various functionaries (constituting the bureaucrat, police officer or other agents of the state), through social norms or educative and other awareness measures, or, b) enabling a sense of fear (or deterrence) amongst the functionaries, that is drawn to act due to fear from non-compliance of prescribed laws or policy measures.

For the sovereign and its agencies to ensure a) role of the state would seem to be rather limited in explicit forms, as citizens would prefer being guided by certain social norms or awareness drives that can collectively (or individually) enforce compliant behavior towards any given law or policy. One may argue that in most of India (where ratio of no. of police personnel per thousand/ ten thousand citizen is pretty low), social norms and beliefs often play a much vital role in regulating social behavior and conduct.

For example, for a government that wants to ban use of single-used plastics across the country to reduce the ecological harm it causes from use and consumption, the citizens—if convinced by a collective social need to value ecological considerations in any consumption or production activity—may prefer being educated about the harmful use of plastics, and therefore, may not require a specific law or an enforcement agency to actually change their consumption behavior.

Some might even argue that while educating a citizenry would require a longer, more consistent social effort on part of the state and non-state actors (civil society members), accrued benefits from this—say observed in the actual change of use of plastics by citizens—shall yield returns from compliance over a longer term (and may be difficult to actualise.

At the same time, if a) (compliance through social awareness or norm-enforcement) doesn’t work, say, due to the existing lower rates of literacy and awareness amongst a given target group of citizenry, or from temporal constraints in a democratic form of state,where, an elected government may often be in a hurry to produce desired results in a short span of time, option b) (compliance ensured by functionaries through ‘fear’), emerges as the other recourse.

In other words, for this course of effective action, the state must design a law (in this case banning single-used plastics), and then make the functionaries (or agencies) to ensure its enforcement, and if they fail to enforce this in due course, there is little chance for the desired outcome to be achieved (with or without citizen support).

‘Zones of compliance’

The real question then becomes: How to make functionaries (or the executive wing of a bureaucratic state) to have sufficient incentive to enforce a given law and do so in a way that is consistent with the state’s (or the legislator’s) expectation?

Kaushik Basu, in one of his recent books, The Republic of Beliefs, offers a novel suggestion. From a closer understanding of applied law and economics, Basu expounds on what he refers to as ‘Zones of Compliance’ in a ‘Game of Sovereign’, to enable an efficient bureaucratic culture within nations while allowing bureaucrats to work in mutually beneficial ways to ensure a consistent, compliant behavior.

The possibility of ensuring this relies closely on analyzing: the content of law itself (and adjudicate how ‘reasonable’ it is for the citizen and the functionary); the defined limits of enforcement (what happens if an officer or bureaucrat fails to do her/his duty), and existing incentive and dis-incentive structures (incentive for bureaucrats to do their job and punishment for citizens on failure to comply).

For simplicity, an illustration of how this can work may help.

For example, based on the above case of banning use of single-used plastics for ecological considerations, let’s say a state government makes every citizen pay a tax ‘t’ for demanding and using plastics from convenience stores. ‘T’ tax may make little sense, from the time it is introduced, unless the bureaucracy or civil servants assist the state in implementing this periodically.

However, any civil servant may only implement this if (s)he feels that the law is reasonable enough to be implemented in the first place, and if only if, by not enforcing the tax (s)he is likely to be punished by her agency (or the state).

Chances of enforcement of law are higher, when the law is reasonable enough to be implemented from the perspective of the tax-enforcing bureaucrat, and there is a punishment (or deterrence) attached from “non-cooperation” or her/his failure to enforce the law (both, for the citizen and the bureaucrat). Unless, the costs attached from non-cooperation aren’t made explicit to the functionary (the civil servant) herself, a given law’s enforcement (or tax ‘t’ in this case) would lie outside the zone of compliance.

Basu, arrives to these conclusions by technically explaining the operational pay-offs for actors to remain in ‘zones of compliance’ as part of a multiple equilibria focal point approach in enforcement scenarios- using a game theory.

In another context, say, if a driver driving over a certain speed limit gets fined ‘P’ as a penalty, to see if the ‘P’ is enforced effectively and has any effect on fast-drivers, it is critical to analyze: under what conditions the traffic officer enforces the penalty (when he catches someone breaking the speed limit), and whether, from the view of the citizen, the penalty from breaking the speed limit is kept reasonably high enough to act as a sufficient deterrent (and subsequently ensure safe driving).

Efficiently addressing the ‘implementation curse’ prevalent in India or in any other developing country remains closely connected with how any test on reasonability of a given law or social policy, in its interpretation, needs to go beyond what’s in the content of law (or policy) itself. As important as the content may be, there remains a need to carefully review principles of reasonableness, in jurisprudence and otherwise both, from the view of identified functionaries and citizenry, in terms of knowing whether costs imposed from non-cooperation are high enough to ensure compliance, as desired. This is critical for ascertaining the costs (from non-cooperation) and enabling a mutually-reinforcing bureaucratic culture of action that lies in the zone of compliance.

At the same time, without ensuring an effective feedback system between the citizenry, the functionaries and the state (or sovereign), there is limited possibility of any law or policy, no matter how good its intent maybe, to function under a zone of compliance, in tackling the implementation curse.

Views are personal. The author is associate professor and director, Centre for New Economics Studies at O.P. Jindal Global University.