Document Type

Article

Publication Date

1985

Abstract

Law and policy do not mix well. The legal system is a significant force which contributes to the splintering of substantive policies. While this argument is made with specific reference to energy law and policy, it also has a general application to other classes of complex cases.

The "signs" that law and policy do not interact neatly manifest themselves in the form of conflicts of two different categories. In the first category are conflicts between the ends and purposes of law and policy. These are addressed in Section 11 of this article. In the second category are conflicts within the system that is charged with the responsibility of making decisions regarding law and policy. Conflicts appear in the structure of the system, in the methodologies the system employs, and in the substantive rules the system produces. These conflicts, addressed in Sections I through V, have been institutionalized by law; they are embedded in the recesses of the legal and policy decision-making apparatus.

As a matter of logical deduction, if there are conflicts between the ends of law and policy and within the means of the decision-making system itself, then the fact that a comprehensive policy has failed to emerge is explicable. What all of this does not explain is why the numerous conflicts do not burst the entire system apart and result in chaos. Here is the immodest portion of the proposal: there is a relation among the signs. Energy policy is not wholly indeterminant. Even though the conflicts fragment comprehensive policy proposals, policy does move along identifiable paths. Two sets of interdependent values, one economic, the other political, help us to orient ourselves in the policy-making world. The economic and political values work together, in a centripetal fashion, to help shape the general direction for law and policy decision-making. Their interaction, a normative pas de deux, produces the relation among the signs.

Comments

This article was published in 22 Hous. L. Rev. 661 (1985).

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