After the Queen’s speech the government has been accused of legislating on things it can’t legislate on and not legislating on things it should have. This debate all seems to be missing something – the limits of law.

This week everyone has gone at Gordon Brown about his inability to mention anything in the Queen’s speech about MP’s expenses. These exact same people have been chastising him for legislating that the government will cut the budget deficit in half within four years. So Brown is both being attacked for unrealistic legislation and for non-legislation – it seems that he can’t win. The point I am making here, however, is not that Brown is wrong or right but that we have to look very deeply at our attitudes to law.

The philosophy we tend to hold to is to view law making in an instrumental sense – if we can identify and isolate a problem then with the correct legislation we can solve it. Laws can create and shape our behaviour, laws can solve our problems. In effect, law has a power in and of itself. 

This instrumental approach to looking at law and policy making is, I believe, one of the unquestioned foundations of our political system. There is a belief that parliament can successfully legislate for an entire nation and that these laws will have a fair and equal impact on the vastly pluralist society.

Robert Putnam once conducted a longitudinal study on democracy in Italy. Making Democracy Work took as its starting point the introduction of identical local regional governments in 20 Italian regions in 1970. The governments were close to identical in their framework, structure and organisation and so represented pretty close to a controlled variable.

What the study discovered was that over twenty years the governments produced vastly different levels of political engagement, accountability and efficacy. The exact same legal structures replicated across the nation had produced vastly different results. What Putnam concluded, therefore, was that social capital had a larger role in making laws successful than we often attribute to it.

What Putnam says is important. Legal structures and legislation do not possess power in and of themselves. They are in fact often subservient to greater forces of social norms and values that are unquantifiable. Take, for example, fox hunting. While I am sure some will say that it is due to lack of will on the part of the police the fact remains that four years after it was banned fox hunting is still going on, apparently in greater numbers than before. The social norms that are predominant in the countryside still accept it and so it continues irrespective of the law.

This is not to say law is powerless but this has serious implications for the government in all areas from social policy to Afghanistan. The instrumental approach to law has much greater limits than we think and unless we begin to recognise this our political system cannot improve its effectiveness.