Unit 5: RULES AND LAW

What rules serve us best?

“Rules are tools” – a constructivist approach to understanding institutions

This slogan sums up the key statement on which this unit focuses. Rules, laws, constitutions, and the Universal Declaration of Human Rights can all be summed up under the concept of institutions. In this manual, institutions are viewed as products – people created these institutions to serve a certain purpose. In this sense, “rules – or generally speaking, institutions – are tools”.

Institutions are tools to serve purposes such as the following:

• They solve serious problems in society;

• They neutralise potential sources of conflict, as they produce stability and security;

• They define power relations between groups in society with different interests; they may then protect the weak, or exclusively give means of power to a certain group, or even individuals.

Therefore, to understand institutions we must understand the purpose or interest that their creators had in mind. Institutions are complex systems to solve complex problems. They emerge out of processes of negotiation and conflict, revolution or reform. In democracies, institutional development is a process of collective learning that itself takes place in a framework of procedural rules, as constitu­tions must be modified carefully and with responsibility.

The students understand institutions through designing an institution

This key insight – the constructivist dimension in institutional development – is reflected in the key task of this unit. The students face a political problem and have the task of inventing a framework of rules to solve it. They become aware of the problems that creators of institutions have to deal with, and can analyse the constitution and laws of their country, as well as human rights, with a keener eye, focusing on the purpose of the institutions rather than isolated bits of rules and regulations.

This version of unit 5 is designed as an extension of unit 4, but it can also be used as a separate four-lesson unit (see below for further details on this option). Both variants set the same task and focus on the same subject matter. The problem that the students deal with is how a community of fishermen should sustainably manage their common resource, the fish stock in a lake (for a model of sustainability goals, see student handout 4.2). At least these four problems must be solved:

1. How can the fishermen avoid overfishing and destroying their fish stock?
2. How can the fishermen achieve a maximum output?
3. How can the fishermen achieve a fair distribution of their income?
4. How can the fishermen achieve these goals in the long term, today and in the future?

The students know the key to the solution of these problems. Student handout 4.4 gives the figures for the optimum sustainable fish harvest (42 tons). The fishermen need a framework of rules that controls their behaviour to achieve these goals. The students’ task is to design this framework. Broadly speaking, they may choose between the “state” and the “contract” approach. Both have their strengths and their drawbacks (see student handout 5.2).

Both approaches have worked successfully in some cases, and both have also failed.¹⁴ Whether the students’ solution works or not would require putting it to the test, which means playing a few rounds of the fishing game (see unit 4) in an extension to this unit. Units 4 and 5 can therefore be combined to provide a laboratory for institutional design and sustainable resource management – a fascinating project, but time-consuming.

The unit – a model of reality

Like unit 4, this unit is also conceived as a game. The students have come away from unit 4 with an idea of how to solve the problem of overfishing by adopting the goal of sustainability (see student handout 4.2). They have discussed what type of institutional framework would be appropriate (lesson 4), but have not explored this issue in depth. This version of unit 5 is a continuation of the fishing game, but with a different focus: what rules or laws serve the fishing community best?

Unit 5 simulates the process of drafting and agreeing on an institutional framework for the fishing community. The students therefore step back into their roles as members of the fishing community, but their task is a different one. They design a framework of rules. A model reduces complexity to focus on certain aspects that are important for the problem being studied, and this game is no exception. Here, the players do not have to worry about fishing and securing their livelihood. There is no external power to disrupt their discussions. The game model focuses on the creation of a framework of rules. As in reality, the negotiations may fail – the players may not reach an agreement. In this respect, the success criteria for political negotiations and a process of learning in EDC/HRE differ. The students may learn a lot from their failing to reach an agreement.

The teacher’s role – game manager and chair

As game manager, the teacher has (even) less input to give than during the fishing game. He/she acts as time manager, to give structure to the process. Otherwise such a game could not be conducted in EDC/HRE classes. The teacher should not prompt the students to make certain choices. The decision-making process is open-ended – it may fail if the students cannot agree on a draft framework, as different choices are possible. The students’ reasons for their choices are as interesting as the result itself.

How to use unit 5 as a separate four-lesson unit

The basic unit design remains the same. The following alterations allow the unit to be used as a four-lesson unit:

• The students act as advisors to the fishing community rather than as citizens. The advisors form teams that draft frameworks of rules, discuss them, and finally agree on what model they want to suggest to the community.
• The first lesson is devoted to studying the problem. The students are given the case story on the fishing conflict (student handout 4.1, and the solution of the sustainability problem – student handouts 4.2, 4.4). The students therefore need not solve this problem as well, but may focus on the question of by what rules the fishermen can be encouraged, controlled, or even forced, in order to support the goal of sustainable fishing. The students must also deal with the issue of properry.

With these modifications in place, the unit can follow the design suggested for the integrated version of unit 5.

Competence development: links to other units in this volume

What this table shows

The title of this manual, Taking part in democracy, focuses on the competences of the active citizen in democracy. This matrix shows the potential for synergy effects between the units in this manual. The matrix shows what competences are developed in unit 5 (the shaded row in the table). The strongly framed column shows the competences of political decision making and action – strongly framed because of their close links to taking part in democracy. The rows below indicate links to other units in this manual: what competences are developed in these units that support the students in unit 5?

How this matrix can be used

Teachers can use this matrix as a tool for planning their EDC/HRE classes in different ways.

• This matrix helps teachers who have only a few lessons to devote to EDC/HRE: a teacher can select only this unit and omit the others, as he/she knows that some key competences are also developed, to a certain extent, in this unit – for example, analysing a problem, judging the effect of rules, exploring the importance of personal responsibility.
• The matrix helps teachers make use of the synergy effects that help the students to be trained in important competences repeatedly, in different contexts that are linked in many ways. In this case the teacher selects and combines several units.

UNIT 5: Rules and law – What rules serve us best?

A decision-making game

14. See Elinor Ostrom, Governing the Commons. The evolution of institutions for collective action, Cambridge University Press, 1990.