To a large extent, the deficiencies in the application of legal norms were usually attributed to cultural issues related to a low level of regulatory compliance by the population because the first of the concepts – that of normative application – is extremely elusive when it comes to categorize it as a matter of law or politics. As has been pointed out, the law enforcement fulfills a function similar to that of the logical figure described by Ludwig Wittgenstein in his Tractatus Logico-Philosophicus: it does not fully belong to one or the other discipline, but rather marks the contours that they limit each other. The law enforcement depends on a political decision, but such a political decision makes up the defining characteristics of a political regime: Rule of Law or Rule by Law. Systems that have a low regulatory application give governments too wide a margin of excessive discretion to selectively apply the law, without respecting the principle of equality of the law and with the purpose of persecuting dissidents and opponents, which results characteristic of authoritarian and totalitarian regimes.
On the other hand, although it concerns an eminently legal field of action, the dynamics of the incentives generated by a low regulatory application prevent it from being increased by intra-legal mechanisms. This is because, in general, a low level of regulatory application is accompanied by relatively high penalties, so that the activation of judicial mechanisms aimed at achieving a higher level of law enforcements by officials leads to the generalization of sanctions disproportionate to the protected legal assets.
Therefore, the solution to such problems of normative application does not depend on the judicial system, but on its political processing through the legislative branch, since, to get out of the trap in which the political system is involved, in addition to increasing the provision of resources destined to ensure compliance with the law, the penalties provided should be reduced in order to function with a lower degree of application.
A good example of this could be the reduction of taxes in a framework of high tax evasion, which can be proposed by virtue of principles of equity and which can also be aimed at achieving higher tax collection. This last aspect is of particular relevance when considering the political incentives to proceed with the aforementioned reform. This is because, as has been stated, any increase in the law enforcement implies a reduction in the level of discretionary exercise of power, that is, a greater limitation of the power of governments.
In this last aspect, the political action to be deployed in the legislative chambers once again takes on importance, since such reductions in the levels of discretion can only be obtained thanks to the exchange of laws that characterizes all legislative work.
Finally, it should be noted that, if what is sought is a higher level of law enforcement in order to limit the discretion of the executive branch, then the most effective strategy will be to demand a reduction in the levels of taxes, penalties and fines, since this will serve as an incentive so that, in order to maintain the previous level of social control, to proceed, in view of the reduction of penalties, to raise the levels of law enforcement, thus generating a virtuous circle according to which the rates of spontaneous regulatory compliance by the population.
Such a political strategy is entirely consistent with the notion of every constitutionally limited government and every free society, according to which each citizen must enjoy the widest sphere of individual autonomy. Likewise, the results to be obtained in this way contribute to materialize the ideal of individual freedom understood as the absence of arbitrary coercion, since this depends in a singular measure on the characteristics of the legal system and its enforcement by public authorities.
However, as was duly stated, when a political legal regime has deficient levels of law enforcement, it is positively fed back adding a low rate of regulatory compliance by the population, thus worsening in a process of incessant deterioration. Consequently, those objectives of institutional improvement can rarely be achieved without political determination on the part of citizens committed to defending their freedoms.
[Editor’s note: this is Part 12 in a 12-part essay; you can read Part 11 here or read the essay in its entirety here.]