As in Gogol’s quote, the arrival of a government inspector still elicits instant fear and worry in a number of countries – including Russia, and most of the former Soviet Union. Most of these inspectors nowadays, by contrast with Gogol’s, come to inspect and control not state institutions, but private ones, particularly businesses. ‘Inspectors’ and ‘inspections’ come under different names – ‘control’, ‘surveillance’, ‘supervision’ – so the notion may require ‘translation’ into the appropriate words for each country. The reality, however, in most parts of the world, is that inspections (under whichever name) are one of the most frequent and important ways in which businesses interact with state authorities. While scholars and governments often look at ‘regulations’ in an abstract way, businesses will typically relate more to their actual experience of regulations, which arises through procedures such as permits and licences, and through inspections – particularly if the latter are frequent, burdensome or otherwise problematic. This is not unique to regulations affecting businesses, and for most citizens ‘laws’ likewise are often distant abstractions, and are experienced primarily through concrete processes: obtaining documents, marrying or inheriting, and of course dealing with the police. Just as inspections can be seen as essential and beneficial, or as burdensome and inadequate, the police are to some an indispensable defensive wall against crime, to others a body that oppresses some citizens regardless of what they have done. Inspections and other enforcement practices are thus inherently ambiguous. Inspections and control are absolutely necessary for some, oppressive and hostile for others.
Origins, Challenges and Evolutions in Regulatory Inspections
This book is an attempt to try and bridge the gap between ‘theory’ and ‘practice’, to bring together perspectives issued from decades of research on enforcement methods, compliance drivers and risk regulation – with knowledge, experience and data coming from practitioners of regulation and regulatory reform. It was designed as an investigation into whether risk-based inspections, and more broadly what one could call ‘smarter’ approaches to inspections and enforcement, appeared to live up to their promises – a ‘win-win’ result of effectiveness, efficiency and economic results. It was also an opportunity to examine inspections as a specific and distinct object, to present some of the main variations in inspections practices, and to define more precisely what risk-based, ‘smarter’ inspections consisted of – and what exactly was to be understood under the word ‘risk’. It also incidentally looked at the issue of trust (between market actors, in the regulatory system), and the extent to which different inspection methods may influence the trust level. Finally, concluding this investigation required outcomes to be considered – how they are defined and measured, how differently formulated goals may influence actions and results, and what measurement challenges exist in order to assess the impact of inspection practices. It appears clear, considering both their history and their effects (as evidenced e.g. by the comparison in OSH outcomes between European countries with similar regulations), that inspections are a distinct object with their own range of effects, distinct from that of the regulations they aim at implementing.
The chapter seeks to unpack two problematic features of the ‘rule of law’, a concept so widely used to, on the one hand, depict a political order based on the legality principle and, on the other, to refer to a historical variation of a legal order, typically succeeding or supplanting authoritarian arbitrary rule. What makes the concept’s use so questionable is that, in the first case, it so often becomes a technical term to describe what is, in fact, an extremely fragile and precarious constellation of norm generation, contestation and adaptation that rests on a set of processes – democratic or otherwise – which themselves are inseparable from any particular practice of the rule of law. In the second case, while a historical depiction of the rule of law in a certain place at a certain time should remind us of the need to assess the rule of law in very concrete, contextual terms, this is typically not the case. Rather than placing each example of the ‘rule of law’ within the context of a particular and unique socio-economic, cultural (including religious), political setting, too often we find that even the historical depiction becomes detached from its (often problematic, even bloody) setting to be represented as a detached and universalized reference. Both the conceptual neutralisation and its universalization has given the rule of law a bad name, especially in places where it serves as summary justification for foreign ‘technical’ and ‘legal’ assistance projects with little regard to local interests, traditions and existing legal pluralist norms.
Thomas E. Kellogg
Armed conflicts are increasingly interpreted as products of, in part, the breakdown of the rule of law, with weak rule of law institutions, in turn, understood as a major challenge to post-conflict reconstruction. Rule of law reform has thus become central to peacebuilding initiatives in the past decade and a half, accompanying a surge in international interventions in the periphery. Yet, results have often been disappointing, with reforms struggling to gain the necessary legitimacy within disrupted communities to function authoritatively. This chapter explores the prioritisation of the rule of law in the context of international peacebuilding, analysing the underlying assumptions and typical legal reforms, as well as their limitations and challenges in light of the purported goal of building a sustainable peace.