Regulators should adopt trust-enhancing methods to implement regulations and secure compliance—especially during a pandemic.
Trust is an intangible factor that affects human and social relations, the functioning of institutions and markets, and the effectiveness of law and regulation. Greater trust yields stronger cooperation, encourages business activity, and contributes to higher levels of economic equality.
For a long time, mature democracies have been suffering from a lack of trust, which manifests in decreased social capital, market and legal uncertainty, and the weakening of institutions. More recently, the trust problem has increased dramatically due to the COVID-19 pandemic.
The effects of the pervasive lack of trust in government can be observed from different angles. For example, trust across countries has suffered. We are seeing that coordinating the purchase of vaccines and masks effectively, as well as temporarily blocking the free movement of people between countries, requires stronger cooperation at the global level.
Trust between states and their sub-national entities is also lacking. For instance, in Germany, Spain, and Italy, various regions within the countries are evaluated daily based on indicators related to COVID-19, leading the respective national governments to impose specific, restrictive regimes on a regional level—all of which takes place in an atmosphere of high tension.
A trust deficit exists between countries and international organizations. For example, the World Health Organization has been criticized for its delay in declaring COVID-19 a global pandemic and for its ineffective monitoring of countries’ pandemic preparedness.
And relationships between governments and the governed lack trust in at least three ways.
First, trust is lacking between institutions and experts. Experts are called to participate in pandemic-response decision-making but are then discarded when they make statements politicians do not like.
Second, trust is lacking between institutions and citizens, as in the case of vaccination campaigns and physical distancing measures, which both need widespread individual compliance to be effective.
Finally, trust between institutions and businesses has suffered, especially considering the inadequacy and timeliness of economic support, as well as the proportionality and justification of restrictive measures.
Despite the desperate need for trust, trust is not simple to achieve. It cannot be bought in a drugstore nor can it be imposed by decree. Trust is indeed an incoercible and “elusive notion.”
But however elusive, the lack of trust is real, and it affects the efficacy of government regulation and regulatory delivery. That efficacy, in turn, can affect trust.
Today, in many countries, legislation and regulation are under attack. As Cary Coglianese has noted, politicians often use law and regulation as a scapegoat for economic distress and inequalities.
Moreover, distrust affects those institutions in charge of implementing law and regulation—the “delivery” side of regulation. And these institutions can affect trust. Bad administration, such as corruption or aggressive regulatory enforcement, can weaken trust in institutions at every level of government.
It does not take much to weaken public trust. Trust is the fragile result of a consolidated positive relationship between citizens and public authorities. A single bad experience can easily transform trust into distrust. Unfortunately, there is no magic wand to restore trust in government once it is undermined.
What is needed at a national level is strenuous daily work to ensure that government provides a comprehensive and consistent approach to law and regulation. Governments must not only talk the talk; they must walk the walk when it comes to developing a positive approach to regulation and to building trust among constituents.
Ensuring that rules are adequately designed and developed is essential to building trust in law and regulation, as well as in public authorities. Fair and analytically sound procedures are crucial.
Impact assessment, for example, is a tool that allows regulators to collect evidence, improve transparency, and obtain ex ante and ex post evaluation of potential regulations. Consultation is also a means to involve stakeholders, provide decision-makers with trustworthy data, and mitigate the lack of democratic legitimation. Both impact assessment and consultation play an important role in increasing public trust in regulators and lawmakers.
Furthermore, clarity and transparency about the evidence used in decision-making are even more crucial in times of a public health crisis when individuals’ behavioral changes—essential to tackling the spread of a pandemic—depend on people’s trust in public authorities and among citizens.
When it comes to regulatory delivery, trust ought to be considered an alternative to control and coercion. Sanctions and punishment operate as substitutes for trust—but they might also weaken trust, too. Institutions should proceed with caution before using punishment as a tool for behavioral change, because an improper, overly coercive enforcement style can lead to sentiments of distrust.
Instead, enforcement should follow a cooperative and responsive approach—based on education, persuasion, and public support for compliance. For instance, public administrators can provide simplified procedures, checklists, guidelines, and ad hoc answers to enhance trusting relationships.
Administrators and lawmakers can also avoid imposing sanctions on firms. Advise-and-persuade strategies—rather than strategies of aggressive enforcement—offer “new instruments for treating non-compliance, such as limiting opportunities to make errors or reducing unintentional errors by improving services.” Pairing advise-and-persuade strategies with predictive, advanced analytics can help provide a “more accurate description” of behaviors to prevent violations and support compliance.
This supportive approach to enforcement improves administrative effectiveness, increases voluntary compliance, and fosters trust in public authorities.
As never before, trust-restoring policies deserve the full attention of scholars and academics, as well as national governments and international organizations. Although intangible, trust really matters and can make a decisive difference in how well government works—especially in times of crisis.
Portions of this essay are adapted from the authors’ book, “The Crisis of Confidence in Legislation,” which grew out of a 2019 International Association of Legislation conference of the same name.
