The term compliance refers to conformity of behaviour with legal rules. Obviously, it refers to understanding of the law with reference to its relations to behaviour, objectives and justice, and it all leads to compliance. That means one has to consider the significance of legal rules. The problem, however, is that significance of legal rules varies among different legal philosophies. For example, analytical jurists refer to law as an element, based on rules. Their purpose is to distinguish the law from non-law rules and it may either be through commands or through structure of legal system which according to them consist of primary and secondary rules.
1. The focus of regulatory theories on the other hand is considering the rules as one element in the wider process, and in this way, it generates a different understanding of the concept of compliance.
2. According to social scientists, the actions of the individuals or society are either motivated by a desire to comply with norms or to maintain a sense of identity, either to do good or to act in a habitual behavioural sequence. The legal system is founded on particular goals and while enacting the laws, lawmakers conform to goals set by society even if they differ as to what these goals are and how to implement them through legal norms, however, in the wider process of lawmaking, sometimes the views of individual actors do matter.
3. It may be noted that contemporary social sciences represent economic-oriented theories counter-posing action having a desire to comply with norms to bring an order or to act in a habitual behaviour. Let us now examine the directive or natural law theories. As per these philosophies, the lawmaking process keeps in view the overall goals of society while making laws. Whereas non-directive theories state that there are no fixed goals of a legal system. Although special interest or individual actors do play important role in lawmaking by bringing in the concept of hegemony.
These arguments question the purpose of law. The fundamental purpose of the law is to maintain stability of the system and to solve co-ordination problems. Again, the purpose is to bring in a discipline to avoid hegemonies, to establish and maintain standards and to usher an environment of equality.
The effect of legal rules on behaviour, like the effect of institutions, is analysed in functional terms. Rules and institutions help stabilise expectations, reduce transaction costs of bargaining, raise the price of defection by information, provide or facilitate monitoring, settle disputes, increase audience costs of commitments, connect performance across different issues, and increase reputational costs and benefits related to conformity of behaviour with rules.
Rules shape opportunities. In economic terms, they function like prices in a market. Compliance is thus likely to be understood as a matter of consistency of behaviour with the rule as interpreted by its authoritative interpreters, and is synonymous (at least in the standard case of "binding" rules) with violation. Non-compliance is likely to be met by reciprocal responses and may attract third-party sanctions.
The challenge, as rationalist instrumentalist theories see it, is posed by the unintended consequences (for future interests and beliefs) of present decisions to adopt a particular rule or, more commonly, to enter into an institution or regime with rule-making or sanctioning powers.
Rationalist theorists of inter-state co-operation have been unwilling to concede a normative effect for law beyond its impact on pursuit of interests (or preferences) and, perhaps, its interest-shaping or preference-shaping and beliefs-shaping. The instrumental roles played by legal rules could also be played (but perhaps not as well) by other types of norms.
To most lawyers, analysis of the law in these highly instrumentalist terms fails to capture much of the true impact of law. One of H.L.A. Hart's most important contributions to positive legal theory had the effect of reinforcing the need for care in treating law as body of objectively determinable rules. He argued that while objective behaviour combined with an appropriate internal attitude among relevant actors involving criticism of oneself and of others for certain violations on the ground that a rule has been violated. This element is essential to the understanding of norms shared by most lawyers:
Neil MacCormick pushes Hart's analysis further in arguing that "any account of rules and norms and standard of conduct must be in terms of this 'internal point of view,'" such that, it must take account of those who operate with these norms.
Thomas Franck has sought to explain the compliance-pull of international norms as a function of their perceived procedural legitimacy. Yet, as Robert Keohane has pointed out, it is difficult to separate compliance-pull from legitimacy so as to posit a clear causal relation between them, and it is virtually impossible in international relations to measure one without the other.
4. Marxist theories pose one familiar challenge to the predominant western accounts, but in response to the perceived spirit of the times, there has been increasing contemporary interest in the articulation of "liberal" theories of international relations. These propose accounts of international politics that begin with individuals as political actors. Preferences if individuals are aggregated and mobilised through political processes.
5. Alexander Wendt, for example, has proposed a constructivist pre-theory which accepts that states are the principal units of analysis but argues (against realists) that key structures in the state system are inter-subjective rather than material, and (against rationalists) that state identities and interests are in some way constructed by these inter-subjective structures, and are thus in some significant respects endogenous rather than exogenous. He distinguishes "corporate" from "social" (or "role") identities of states: corporate identities are composed of "intrinsic, self-organising qualities that constitute actor individuality," while social identities are "sets of meanings that an actor attributes to itself while taking the perspective of others. Social constructs such as norms and authority thus occupy a deeper and more significant place in the international system than rationalist allow.
6. Constructivist accounts of law as constitutive of social relations treat norms as fundamental not only to behaviour but to actor identities underlying behaviour. The inter-subjective elaboration of norms, and their complex role as the embodiment and constitution of social relations, excludes the types of linear causal relations between norms and behaviour that rationalist regard as the central topic for investigation. Most accounts of compliance presuppose the value of seeking to investigate such causal relations, while acknowledge the difficulties of such a project. The constructivist approach points, however, to the particular.
Ellickson's work on the interactions of different types of norms proposes an accounts of rules as components of systems. He classifies system if social control according to the type of controller. Each generates a particular type of rule and within each category there are five sub-types of rules: substantive, remedial, procedural, constitutive, and controller-selecting. Each controller is generally associated with a particular type of sanction (one controller may enforce rules developed by another): First-party control (actor): rules are personal ethics, sanction is self-sanction, system is called self-control;
Second-party control (person acted upon): rules are contracts, sanction is personal self-help, system is called promise-enforced contracts;
Third-party control (social acted upon): rules are norms, sanction is vicarious self-help (ie, others come to aid the person acted upon), system is called informal control;
Third-party control ([non-government] organisation): rules are organisation rules, sanction is organisation-enforcement, system is called organisation-control;
Third-party control (government): rules are laws, sanction is state-enforcement, system is called legal system.
Process theories of international law address issues of compliance in numerous ways, many of which are discussed in the literature. There has been surprisingly little work, however, on the possibilities and problems of analysing the regulatory strategies and compliance related operations of international regulatory treaties to theories of regulatory process.
In this regard, some international regulatory relations can be expressed in terms of prisoners gross Dilemma and other standard games only with assumptions that entail gross over-simplifications.
One example is the development of complex relationships between regulator and regulated that is an emerging characteristics of the Montreal protocol system for protection of the stratospheric ozone layer. The non-compliance procedure, contemplated in article 8 of the protocol but developed and adopted by subsequent meetings of the parties and already in operation for five years, centres on the 10-member implementation committee. The formal powers of this committee culminate primarily in the possibility of recommendations to meetings of the parties, but thus far the committee has included members who are also influential at meetings of the parties, and the committee has in fact enjoyed significant authority and competence.
The complex relations of status and operation among different components of the system exemplify the intricate interactions of different types of norms and institutional structures. These interactions are not well captured in standard international legal typologies. Problems of conceptualising "compliance" where norms are constitutive rather than simply regulative. It highlights the difficulties of extracting norms from wider structures of social relations.
Rational-choice models of inter-state co-operation suggest that in the case of formal agreements the dynamic of compliance (conformity of behaviour with rules) vary according to the number and interest-distributions of actors as well as the distributions of power and preference intensities; dynamic favouring compliance tend to be better in small agreements.
Liberal theory also models a differential world, in which co-operation among (disaggregated) liberal states may be higher than co-operation involving non-liberal states may be reasons relating to the nature of liberal democracies, including the allegedly greater participation of stakeholders and the ability of liberal states to overcome time-inconsistency problems and to establish more trust and commitment.
Constructivism adds a quite different dimension, however, in suggesting that the participants are themselves constituted by the norms and interactions, and that very identities of participants are in part endogenous.
International lawyers commonly hold a purposive view of international law; a view that is often aspirational. This view is buttressed by the sources image of state interacting in purposive fashion to agree on the law in particular areas, and by the belief that it is possible to identify objective technical "problems" (eg, environmental degradations) so as to evaluate legal regimes as part of technical "solutions" to these problems. Studies of correspondence of behaviour with rules are frequently pulled toward assessment of the effectiveness of rules in relation to particular explicit or presumed purposes.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
1). Compared to legal jurists, social scientists identify these rules with reference to objective acceptance or denial of the rules through one's behaviour
2). These theories have often emphasised on sources of law, however, social scientists interested in explaining the relation of rules to behaviour often identify rules by the presence or absence of objectively discernible patterns of regular behaviour.
3). Individual lawmaking actors are self-intended and represent the well-organised special interests which mitigate the concept of equity and equality.
4). Sec Robert O. Keohanxce, Comment, International Relations and International Law: Two Optics 38 Harv. Int. L. J 487.
5). State institutions respond to individual and groups in different ways, but do not represent all individuals and groups, even while they enjoy general competence to regulate.
6). Sec Alexander Wendt, Collective Identity formation and the International state, Americal Pal. Sec. Review 384.