Flexibily or Arbitrarily?

How should those charged with applying the law administer it?

From a 2006 article on Latin American approaches to labour inspection, Michael J. Piore and Andrew Schrank hint at a fascinating approach to regulatory decision-making we like to pretend is impossible in Canada:

The flexibility of the Latin model in particular contradicts the image of labor-market regulations as bad for business. A telling example comes from our interviews with inspectors in France, where the Latin model originated but where it is currently under attack for its alleged rigidity. One inspector discussed his approach to the limitations on the use of temporary help and gave as an example the case of a large firm that he knew to rely excessively on temporary employees. He also knew, however, that it had an informal agreement with its unions to periodically move a certain number of temporary workers onto its permanent payroll, and in light of this agreement he simply ignored the temporary-help violations. His reasoning, he explained, was that the goal of the temporary-help restrictions was to expand permanent employment, and he thought he would be unable to obtain more permanent jobs by enforcing the existing regulation than by tolerating the admittedly illegal informal arrangement with the union. The law, he pointed out, is a means, not an end in itself.

My friend Sean is an ardent opponent of laws which are selectively enforced. He uses the example of drug laws which end up being applied so that the aggregate result is obviously racist. So where’s the middle ground? There’s a PhD thesis in there just waiting to be written.