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Cambridge.University.Press.An.Introduction.to.Law.and.Regulation.Text.and.Materials.Apr.2007.
This page intentionally left blank An Introduction to Law and Regulation Text and Materials In recent years, regulation has emerged as one of the most distinct and important fields of study in the social sciences, both for policy-makers and for scholars who require a theoretical framework that can be applied to any social sector This timely textbook provides a conceptual map of the field and an accessible and critical introduction to the subject Morgan and Yeung set out a diverse and stimulating selection of materials and give them context with a comprehensive and critical commentary By adopting an interdisciplinary approach and emphasising the role of law in its broader social and political context, it will be an invaluable tool for the student coming to regulation for the first time This clearly structured, academically rigorous title, with a contextualized perspective is essential reading for all students of the subject BRONWEN MORGAN is Professor of Socio-legal Studies at the University of Bristol Her research focuses on the political economy of regulatory reform and global governance She is the author of Social Citizenship in the Shadow of Competition (2003) KAREN YEUNG is Professor of Law at Kings’ College London She was a university lecturer at Oxford University and a Tutorial Fellow in Law at St Anne’s College from 1996 until 2006 Her research lies in the intersection of public law and socio-economic regulation The Law in Context Series Editors: William Twining (University College London) and Christopher McCrudden (Lincoln College, Oxford) Since 1970 the Law in Context series has been in the forefront of the movement to broaden the study of law It has been a vehicle for the publication of innovative scholarly books that treat law and legal phenomena critically in their social, political and economic contexts from a variety of perspectives The series particularly aims to publish scholarly legal writing that brings fresh perspectives to bear on new and existing areas of law taught in universities A contextual approach involves treating legal subjects broadly, using materials from other social sciences, and from any other discipline that helps to explain the operation in practice of the subject under discussion It is hoped that this orientation is at once more stimulating and more realistic than the bare exposition of legal rules The series includes original books that have a different emphasis from traditional legal textbooks, while maintaining the same high standards of scholarship They are written primarily for undergraduate and graduate students of law and of other disciplines, but most also appeal to wider readership In the past, most books in the series have focused on English law, but recent publications include books on Europe law, globalisation, transnational legal processes and comparative law Books in the Series Anderson, Schum & Twining: Analysis of Evidence Ashworth: Sentencing and Criminal Justice Barton & Douglas: Law and Parenthood Beecher-Monas: Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due Process Bell: French Legal Cultures Bercusson: European Labour Law Birkinshaw: European Public law Birkinshaw: Freedom of Information: The Law, the Practice and the Ideal Cane: Atiyah’s Accidents, Compensation and the Law Clarke & Kohler: Property Law: Commentary and Materials Collins: The Law of Contract Davies: Perspectives on Labour Law Dembour: Who Believes in Human Rights?: The European Convention in Question de Sousa Santos: Toward a New Legal Common Sense Diduck: Law’s Families Elworthy & Holder: Environmental Protection: Text and Materials Fortin: Children’s Rights and the Developing Law Glover-Thomas: Reconstructing Mental Health Law and Policy Gobert & Punch: Rethinking Corporate Crime Harlow & Rawlings: Law and Administration Harris: An Introduction to Law Harris, Campbell & Halson: Remedies in Contract and Tort Harvey: Seeking Asylum in the UK: Problems and Prospects Hervey & McHale: Health Law and the European Union Lacey & Wells: Reconstructing Criminal Law Lewis: Choice and the Legal Order: Rising above Politics Likosky: Transnational Legal Processes Likosky: Law, Infrastructure and Human Rights Maughan & Webb: Lawyering Skills and the Legal Process McGlynn: Families and the European Union: Law, Politics and Pluralism Moffat: Trusts Law: Text and Materials Norrie: Crime, Reason and History O’Dair: Legal Ethics Oliver: Common Values and the PublicÀPrivate Divide Oliver & Drewry: The Law and Parliament Picciotto: International Business Taxation Reed: Internet Law: Text and Materials Richardson: Law, Process and Custody Roberts & Palmer: Dispute Processes: ADR and the Primary Forms of Decision-Making Scott & Black: Cranston’s Consumers and the Law Seneviratne: Ombudsmen: Public Services and Administrative Justice Stapleton: Product Liability Tamanaha: The Struggle for Law as a Means to an End Turpin: British Government and the Constitution: Text, Cases and Materials Twining: Globalisation and Legal Theory Twining: Rethinking Evidence Twining & Miers: How to Do Things with Rules Ward: A Critical Introduction to European Law Ward: Shakespeare and Legal Imagination Zander: Cases and Materials on the English Legal System Zander: The Law-Making Process An Introduction to Law and Regulation Text and Materials Bronwen Morgan and Karen Yeung CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521685658 © Cambridge University Press 2007 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2007 eBook (EBL) ISBN-13 978-0-511-28475-5 ISBN-10 0-511-28475-6 eBook (EBL) paperback ISBN-13 978-0-521-68565-8 paperback ISBN-10 0-521-68565-6 Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate To Jim To Duncan Conclusion all domains of the map While the conceptual structure offered here is largely descriptive and explanatory, the theme of law’s role in regulation is developed as an argument Readers need not accept our claims about the law’s role in order to benefit from the guidance provided by our conceptual structure Because our discussion of the law’s role is a theme that appears periodically throughout the book in fragmented fashion, this concluding chapter draws together the threads of our argument about the role of law This does not mean that the conceptual structure we have offered is less important: merely that its value lies in the cumulative unfolding of the preceding chapters Our argument concerning the role of law fleshes out a series of stylised concepts that we developed to summarise patterns of empirical variation, describing it in abstract, conceptual terms rather than as philosophical claims about the nature of law The resulting account emphasises law’s facilitative role as a potentially powerful instrument that may used to regulate behaviour, while highlighting its expressive role, the latter referring to the way in which the law may institutionalise and give expression to values of non-instrumental kind At the level of national regulation, both the law’s facilitative and expressive dimensions are reflected in its related but distinct contributions to regulation, encapsulated by two images: the law as threat and the law as umpire These various facets were summarised in Chapter in schematic form, reproduced in Figure 7.1, which we then developed incrementally as the book progressed Chapter established what we mean by the law’s facilitative role and introduced the umpiring facet of that role Chapter developed detailed examples of the difference between the image of law as threat and law as umpire and introduced the law’s expressive dimension Chapters and dealt with both images of law as threat and as umpire across the law’s facilitative and expressive dimensions In drawing together the threads of our argument about the law’s role, we return to this schematic representation, rather than following the sequential discussion offered in preceding chapters Figure 7.1 Law’s image 339 340 Conclusion The facilitative dimension of the law’s threat is most evident in regulatory scholarship concerned with understanding the mechanics of regulatory tools and techniques examined in Chapter In particular, much of the literature that is described by its authors as ‘regulatory scholarship’ is concerned with identifying and prescribing the conditions under which various tools and techniques are likely to achieve defined social goals most effectively As such, this literature tends to understand law’s role as entirely facilitative, so that the law’s threat is enlisted primarily for its deterrent capacities The law’s threatening dimension is clearly visible within command-based regimes, but it is rarely absent in its entirety, with its hidden quality perhaps most evident in prescriptive models of enforcement behavior examined in Chapter So for example, in the well-known ‘pyramid of enforcement’ model developed by Ayres & Braithwaite, the law’s role is claimed to operate most effectively when its threat is present but largely hidden, operating as a sword of Damocles, to be invoked by regulatory officials only when softer, persuasive attempts to elicit the desired behavioural response have failed Indeed, it is partly because of the facilitative power embodied in the law’s threat, emanating from its capacity to invoke the coercive power of the state against its citizens, that calls forth the need for its legitimation, reflected in various appeals to democracy referred to in Chapter But the extent to which the facilitative dimension of the law’s threat may be legitimately invoked is shaped and tempered by its expressive capacity By proscribing particular kinds of conduct on pain of sanction, the law’s threat may be seen as expressing condemnation of that conduct Condemnation of this kind is most visible in criminal laws that proscribe and sanction conduct regarded as morally wrongful In other words, the law’s threat serves an important symbolic function, one that may not be adequately replicated when alternatives to command-based techniques are adopted in order to discourage undesirable behaviour It is the expressive dimension of the law’s threatening role that is illuminated by the well-developed literature, referred to in Chapter 4, that seeks to understand the responses of regulatory enforcement officials to observed non-compliance with regulatory rules In particular, attempts by law-makers to strengthen the facilitative capacity of the law’s threat by proscribing conduct without reference to notions of moral culpability are likely to be ineffective, for it is the expressive capacity underlying the law’s threat which helps to command respect and obedience by the regulated community and the public more generally But the law’s threat, most evident in rules proscribing specified conduct, is not entirely self-executing Its deterrent effect relies to some extent on its effective and publicly visible enforcement, in which the adverse consequences arising from a breach of the law’s command are brought to bear directly on those found to have violated its commands Accordingly, resort must be had to the law’s umpiring function to establish and maintain a structured framework for free interaction between regulatory participants In its facilitative dimension, the law’s Conclusion umpiring role is perhaps most clearly recognisable in the range of institutions, actors and behavioural dynamics involved in the task of monitoring and enforcing regulatory rules But it is also at work in providing the legal infrastructure which ensures the security of voluntary transactions undertaken by market participants Although there is a strong tendency in policy circles to view the law in opposition to the market, in which legal intervention is often characterised as an ‘interference’ with the market order, the latter cannot exist without a stable legal infrastructure in which the competitive forces of supply and demand may be free to operate As institutionalist theories of regulation become more dominant, law’s umpiring role becomes more central As Teubner puts it, ‘‘the role of reflexive law is to structure and restructure semi-autonomous social systems by shaping both their procedures of internal discourse and their methods of coordination with other social systems’’: a classic umpiring role And in discussing regulatory legitimation in Chapter 5, law’s capacity to coordinate political dialogue encompassing multiple competing values is a crucial, umpiring facet of its facilitative role, which is at the heart of many of the approaches advocated by academic scholars in responding to the challenges of market liberalisation and globalisation But the law’s umpiring function also displays an expressive character That expressive character arises from the capacity of the law to institutionalise values, whether they be moral principles, community preferences chosen through democratic procedures or constitutional values This expressive character is crucial to the legitimation of a regulatory regime Seen in this light, tools and techniques of regulation can no longer appear as neutral, technocratic instruments of social and economic policy Rather, they may be seen as embodying particular values, so that a preference for one policy instrument over another may be understood as allocating priority to the values associated with the former over the latter In a similar vein, the conferral of rights of enforcement on private parties may be regarded as more than merely vehicles through which compliance with regulatory rules may be promoted, but as an important avenue through which individual members of the community may actively participate in the regulatory enterprise And precisely because the expressive force of the law’s umpiring role is crucial to micro-level facets of regulation such as enforcement and techniques, a similar importance pervades theories of regulation and judgements about regulatory legitimation We suggested at the end of Chapter that the various institutionalist theories might be understood as attempts to blend the insights of public and private interest theories into one single approach Similarly, we can see in pluralist models of regulatory legitimation, the law’s role is to provide a means for structuring dialogue between participants thereby enshrining values of openness and participation Once we extend our analytical framework to the supranational context, the law’s contribution to regulation is significantly altered Although the law’s facilitative capacity extends to supranational regulation, its power is considerably weakened While this dilution of the law’s facilitative power is partly attributed 341 342 Conclusion to the largely undeveloped nature of supranational institutions for global democratic governance that may legitimately exercise coercive power at the international level, it may also be attributed to the weakness of the law’s expressive capacities at that level Although the European Union and World Trade Organisation may act as global law-making institutions, their law-making power stems from diverse and heterogeneous national communities, each represented by negotiators who define their regulatory goals in a relatively narrow, trade-focused compass Accordingly, it is more difficult for these supranational institutions to represent affected communities than it is for national lawmaking institutions In other words, the expressive capacity of law in reflecting the political and moral consensus of the community affected by that law is not well replicated at the supranational level: it is muddied by the presence of supranational regulatory dynamics While the absence of highly developed institutions of global governance capable of resolving conflicts between competing global policy objectives in a democratically legitimate manner may weaken the law’s facilitative power, attempts at regulation above and beyond the state have nonetheless flourished in narrowly defined policy contexts, through the extensive participation by ‘experts’ in developing supranational regulation in specific policy sectors In other words, the predominance of expert-driven supranational regulatory conversations in discrete policy sectors may ground shared understandings between regulatory participants and thereby help to strengthen the law’s facilitative role Although law may play a loose coordinating role across these sectors, it is yet to draw these sectors together in a unified manner For whereas in a national context, law can facilitate a balancing of outcomes recommended by different expert discourses across different sectors, in a supranational context, the most law can is encourage dialogue between different expert discourses This is because it cannot, at present, make and impose policy trade-offs transparently, authoritatively and in a manner which is responsive to the community in the absence of democratically legitimate coercive supranational institutions Our final observation aims to clarify an ambiguity that may arise from adopting a decentred view of regulation while retaining a state-centric definition of law Our argument about the law’s role in regulation has defined law as authoritative rules backed by the legitimate coercive power of the state In the supranational context, a state-centric understanding of law includes binding commitments voluntarily entered into between sovereign states (that is, typified by public international law) through intergovernmental agreement But as we have seen, the law’s contribution to regulation above and beyond the state is under challenge Just as the forces of globalisation are challenging the primacy of states in both empirical reality and academic scholarship, state-centric conceptions of law are also being questioned This may have implications for the character of law, as opposed to the implications for regulation, which have been our primary focus At the supranational Conclusion level, we have observed that regulation takes place through a broad range of norms which may be thought to exert legitimate influence, although devoid of direct coercive legal force While legal pluralists claim that such norms constitute forms of law, others have made powerful arguments in favour of retaining a narrower, state-centric conception, in order to retain a sense of the law’s distinctive nature and attributes In other words, the weakening of state-centric understandings of law raises a question: can law persist decoupled from the concept of coercively binding norms promulgated by a sovereign (and sometimes democratic) state legislature? This question is not one which we have sought to address in this book Rather, our analytical framework for exploring regulation, and its application to both domestic and supranational contexts, throws into high relief the challenges with which academic debates within law and social scientific inquiry are currently grappling The emergence of regulation as a distinct field of scholarly inquiry occupies a particularly rich and powerful vantage point from which to explore the consequences of the pressures generating a move towards decentred accounts of regulation Just as regulatory scholarship is strengthening its position as a placeholder for arguments about democracy and other political ideals, the familiar structures of traditional representative democracy are under strain Similarly, just as regulatory scholarship is establishing itself as a forum for debates about the nature and role of law in collective social life, so too are the familiar structures of law under strain Throughout this book, we have adopted a traditional, statecentric notion of law in an effort to address the first field of flux in a manner which will resonate with both lawyers and non-lawyers In so doing, we hope that we have succeeded in making the broad and varied terrain inhabited by academic literature on regulation more accessible to newcomers, as well as demonstrating its enormous potential as a rich and fertile field of scholarly enquiry 343 Index Abel, R 142 accidents 89 and instrument choice 115 accountability autonomy and welfare 224–28 definition 40, 221, 228 interdependence 232 and legitimacy/legitimation 221–3, 237, 239 redundancy model 234–6 regulatory 228–36 administrative deliberation 272–3 administrative justice 244–8 administrative law 137 ADR see alternative dispute resolution agency capture 287 agency enforcement behaviour 181–93 legalistic v discretionary approaches 189 and bargaining 179, 182, 185–7, 207 Britain v US, contrast of styles 189–93 and deterrence 193, 196, 200, 206, 209, 213 and environmental control see environmental control legal environment 182 political environment 159, 162, 188, 208, 213–14 style factors 187 task environment 187 allocative efficiency 22, 26, 88 Alter, K 310 alternative dispute resolution 141, 142 animals, and irreversibility 35 architecture-based techniques see code-based techniques Ashworth, A 200 Auerbach, J 142 autonomy 41 and welfare autopoiesis 129–32 as post-regulatory state 131 and proceduralization 131 regulatory trilemma 130 and subsystems 129 Ayres, I 53, 74, 106, 124, 193, 200, 202 Baldwin, R 238, 253, 330 bargaining and agency enforcement behaviour 179, 182, 185–7, 207 and environmental control 185–7 negotiation and persuasion 151, 177–9, 183–4, 190 and the rule of law 142 Becker, G 209 Bentham, J 261 Bevan, G 166, 176 black boxes 73 Black, J 4, 153, 158, 176, 181, 182 bounded rationality 25 Braithwaite, J 53, 74, 106, 124, 193, 200, 202 Breyer, S 88 Brownsword, R 102 bureaucratic rationality 239, 248 capture see efficient capture; regulatory capture charges and taxes 86 civil and criminal liability 203–8 blurring of distinction 205 overlapping penalties, problems 206–8 345 346 Index civil law 136 see also public and private enforcement and common law systems 138–9 and criminal liability 203 classification 105–12 and hybridisation 106 tool 79, 105 classification shift agency/programme to tool 110 command and control to negotiation and persuasion 112 hierarchy to network 111 management to enablement skills 112 new governance paradigm 109–12 public v private to public and private 111 code-based techniques 102–5 and cyberspace 102, 104 and social order 103 techno-regulation 102–4 codes of conduct 321 Codex Alimentarius 321 coercive approach 132–5 and publicly significant behaviour 133 punitive aspects 134 and benefits 133 and self-regulation 95 Coffee, J.C., Jnr 204 collective action cost-benefit structure 47 problems 27 and public interest theories 48 collective desires/aspirations 28–31 collibration 131 comitology 290, 295 command-based mechanisms 80–5 v competition-based techniques 113–46 financial and compliance costs 82 imperium and dominium see imperium and dominium and mandatory disclosure 97 negotiation and persuasion, shift to 112 policy and implementation 81 supranational regulation 313–15 uncertainty problem 85 common law v civil law systems 138–9 communication 96–102 guidance 100 management techniques 143–6 mandatory disclosure 96–8 public information campaigns 99 public management 99 publicising compliance performance 100 role of the law 102 supranational regulation 318 voluntary disclosure 98 competition 85–92 and behaviour of individuals/organizations 91 economic instruments see economic instruments facilitative role of law 91 liability rules see liability rules, changes as permission 92 supranational regulation 315 compliance see also enforcement and compliance costs 82 creative 164 performance, publicising 100 consensus see self-regulation constitutional law and accountability 224–7, 229, 238–44, 254 and administrative law 295 constitutional values 66 and democracy 254–6, 259, 290 and due process 163, 253 and instrument choice 136 and legal culture 82, 270 regulatory traditions and rule of law 270 consumer choice 24–6 cooperation and corruption 55–6 Cooter, R 117 corporatism 94 corrective interest representation 276 creative compliance 164 criminal law 130, 140, 200, 209 and sanctions 200, 204, 207 and strict liability 183, 204–8 Croley, S 44, 47 ´ Cuellar, M.-F 273, 281 cybernetics 3, 73 cyberspace 102, 104, 320 Daintith, T 81, 85 Davies, A 145 Index decentred regulation Dehousse, R 296 deliberation 272 deliberative democracy 29–31 deliberative processes 36 democracy 37–40 and autonomy 41 and constitutional law 259, 290 corrective interest representation 276 deliberative 29–31 disaggregated 293 and expertise 253–9 horizontal 296 majoritarian/non-majoritarian 255–8 participation agency 277–9 and pluralism 259–73 regulatory 60, 273–9 and supranational regulation 331 vertical 294 deregulation 140–6 bargaining and the rule of law 142 and communications management techniques 143–6 and compliance 141 and economic instruments 140 deterrence and agency enforcement behaviour 193, 196, 200, 206, 209, 213 and sanctions 183 disadvantaged groups see social subordination disaggregated democracy 293 disclosure mandatory 97 voluntary 98 discrimination see social subordination dissonance-reducing strategies 35 distributional considerations 115 Diver, C 158 diverse experiences 31 dominium and imperium 81 due process 239 and constitutional law 163, 253 economic analysis of law 123 cost-benefit analysis 47, 53, 278 efficiency 87, 124, 140 externalities see externalities free rider problem 212 game theory 193 information asymmetry 41 market failure 17–21, 26, 41–3, 96, 139, 224, 244, 257 natural monopolies 19, 136 Pareto efficiency 225, 262 public goods see public goods welfare economic approaches 2, 18, 26, 29, 34, 41, 43, 50, 72, 76, 82, 131, 137, 162, 306, 312 economic instruments 86–8 charges and taxes 86 and deregulation 140 subsidies 87 tradeable emission rights 88 Edelman, L.E 151 efficiency and economic analysis of law 87, 124, 140 and legitimacy 240 efficient capture 54–9 EIs see economic instruments endogenous preferences 34 enforced self-regulation 106–9 see also self-regulation contracting around regulatory defaults 108 contractual arrangements with the state 109 model 106 enforcement and compliance 151–3, 215–17 see also agency enforcement behaviour; rules, enforcement benign big gun 199 and constitutional values 201–3 and criminal law 200 deterrence v compliance models 193, 194 and game theory 193 informal techniques 151 and instrument choice 115 normative prescriptions 193–200 value-based critiques 200–3 public and private see public and private enforcement pyramid 196 of regulatory strategies 197 environmental control bargaining 185–7 compliance 183, 186 conciliation and penal strategies 347 348 Index environmental policy 125 see also pollution design 127 and economic instruments 140 Esty, D 308 European Union analogy 289–91 comitology 290, 295 command-based techniques 314 disaggregated democracy 293 Emissions Trading Scheme 316 as regulatory state 312 vertical democracy 294–6 expertise 240 and democracy 253–9 and legitimacy 240, 253–9, 330 expressive function of law 132, 308, 309 externalities 18, 21–3 causation issues 22 corrective measures 23 pecuniary 23 financial and compliance costs 82 Fiss, O 142 Foucauldian approach 14 free rider problem 212 Freeman, J 281 future generations, and irreversibility 35 game theory 193 gaming assumptions/responses 168–70, 172–5 Geradin, D 308 global emissions trading regime 316 global governance 288–98 see also European Union; supranational regulation and comitology 290, 295 horizontal democracy 296 information agencies 291–3 legislative networks 297 vertical democracy 294–6 governance global see global governance new paradigm of 109–12 non-state actors 281–8 governance by targets 166–75 conclusions 175 context/institutional setting 170 gaming assumptions 168–70 gaming responses 172–5 measurement 172 measurement assumptions 168 motivation of providers 169 and National Health Service 170–5 and public service management 166 reported performance data 171 theory 167–70 Grabosky, P 124 group access 263–6 guidance 100 Gunningham, N 124 Habermas, J 37, 295 Hancher, L 59, 69 harmonization 306, 308 Hart, H.L.A 155 Hawkins, K 182, 187 Heiskanen, V 307 hierarchy, shift to network 111 Hood, C 166, 176 horizontal democracy 296 Hutter, B 151, 187 hybridisation of instruments 106 of legal forms 204 ideal speech situation 37, 39 imperium and dominium 81–5 financial and compliance costs 82 legislative costs 82–5 incentives 114 information agencies 291–3 deficits 24–6, 96 information asymmetry 41 informational regulation 286 institutionalist approaches 8, 17, 69, 74, 76, 310–11 institutionalist theories 53 regulatory space see regulatory space role of law 74 supranational regulation 310–11 systems theory see systems theory tripartism see tripartism instrument choice 113–16 and accidents 115 and administrative law 137 Index command-based v competition-based techniques 113–46 and constitutional framework 136 and constitutional law 136 distributional considerations 115 empirical evidence 116 and enforcement 115 expressive function 132 incentives 114 information 114 and legal/constitutional/social culture 135–9 prescriptive approaches 116 prices and sanctions see prices and sanctions regulatory traditions and styles 138–9 smart regulation see smart regulation and tool efficiency 116 instrumentalist concept 26, 37 instruments see regulatory instruments interdependence 232 interest group pluralism 44–7 interest groups, and public choice theory 49 International Labour Organisation 325, 327 International Monetary Fund, consensual regulation 317 irreversibility 35 Joerges, C 295 judicial policy-making 270–2, 331 judicial review 258, 260, 273 and accountability 228, 235 and instrument choice 138 and legitimacy 246, 253, 281, 284 Kagan, R 187 Kolko, G 61 Landes, W 210 Lasswell, H 145 law administrative law 137 constitutional law see constitutional law criminal law 130, 140, 200, 209, 310–11 economic analysis of 123 EU law see European Union expressive facet expressive function 132, 308, 309 facilitative role 5, 92 reflexive 131 legal pluralism 125, 131 legislative costs 82–5 legislative networks 297 legitimacy/legitimation 300 see also accountability and legitimacy and accountability 221–3, 237, 239 and administrative justice 244–8 bureaucratic rationality 248 claims to 238–44 corrective interest representation 276–7 decentred 280–98 definition 221 and due process 239 and efficiency 240 and expertise 240, 253–9, 330 global governance 288–98 and legislative mandate 239 models 244–53 moral judgment 250 non-state actors 281–8 and pluralism 259–73, 330 professional treatment 249 regulatory democracy 60, 273–9 supranational regulation 330–2 theoretical issues 223–8 legitimate institutions 38–40 in practice 40 Lessing, L 102 lex mercatoria 131 liability rules, changes 88–91 and accidents 89 and court system 90 and pollution 88 product safety 89 social consequences 90 strict liability 90 liberty 225–7 Lijphart, A 256 Lowi, T.J 61 Luhmann, N 129, 242 McBarnet, D 164, 166 Madison, J 29, 295 Majone, G 254, 260, 296, 312, 330 majoritarian/non-majoritarian democracy 255–8 mandatory disclosure 97 349 350 Index Mann, K 205 market behaviour, and regulation 47–51 market failure 17–21, 26, 41–3, 96, 139, 224, 244, 257 Mashaw, J.L 239, 244 Mayntz, R 73 meta-governance/regulation 131 Meunier, S 310 monopolies, natural 19–20 moral judgment 250 Moran, M 59, 69 naming and shaming 100, 143 National Health Service 170–5 natural monopolies 19, 136 nature, and irreversibility 35 negligence 89 negotiation and persuasion 112 bargaining 151, 177–9, 183–4, 190 Neiman, M 132, 204 neo-pluralist theory 44–7 network effects 311 new governance paradigm 109 Neyer, J 295 non-state actors 281–8 off balance sheet financing (OBSF) 165 Ogus, A 18, 86, 93, 95, 113, 135, 140 open method of coordination 314 optimal policy mixes 125 implementation 126 Pareto efficiency 225, 262 participation agency 277–9 and ideal speech situation 40 intrinsic value 26 pecuniary externalities 23 performance indicators see governance by targets permission 92 persuasion see negotiation and persuasion pluralism and democracy 259–73 legal 125, 131 and political theory 262–73 policy and implementation 81 optimal mixes see optimal policy mixes political approaches see private interest theories; procedural political approaches; substantive political approaches polluter-pays principle 21, 87 pollution see also environmental policy abatement and damage costs 114, 122 control, economies of scale 107 and liability rules 88 positive harmonization 306, 308 Posner, R 210 post-regulatory state 131 postconsequentialism 266–9 preferences endogenous 34 formation, and diverse experiences 31 prescriptive approaches and tool efficiency see under instrument choice prices and sanctions 117–23 and criminal law 200, 204, 207 definitions 117 and deterrence 183 distinguishing between 122 and economic analysis of law 123 incentive effects 117–23 in general 118 and normative theory of lawmaking 121 and regulation 123 private actors 281–8 private enforcement see public and private enforcement private interest theories 43 economic approaches 47–51 interest group pluralism 44–7 political approaches 44–7 role of law 51 and supranational regulation 308–10 procedural political approaches 36–41 accountability 40 critical approach 37–40 deliberative processes 36 ideal speech situation 39 legitimate institutions see legitimate institutions participation 40 values, prescription 36 proceduralization 71, 141 and autopoiesis 131 Index product safety 89 professional treatment 249 proportionality principle 201 Prosser, T 26, 37 public choice theory 47–51, 133 and electoral goals 50 empirical evidence 51 and interest groups 49 public communications management 99, 143–6 public goods 20, 86, 212, 263 impure 21 public interest groups enforced self-regulation 107 and tripartism 56–8 public interest theories 17 political approaches 26 political approaches see procedural political approaches; substantive political approaches role of law 45 and supranational regulation 306–8 welfare economic approaches 18–26, 41 public and private enforcement 203, 210–15 combination 214 economic analysis of 209 free rider problem 212 private enforcement and effective regulation 211 and efficient regulation 211 limitations 212 over-enforcement 212 public enforcement role 213 rights 209 pyramid of enforcement 196 Raustiala, K 311 Redmond, P 321 redundancy model 234–6 reflexive law 131 regulation civil law v common law systems 138–9 comparative perspectives on droit public economique 138 US and British systems 181, 189–93 Wirtschaftsverwaltungsrecht 138 core facets core functions cybernetics perspective as field of social inquiry informational 286 instrumentalist concept 26, 37 a legal perspective legal perspective 44–7 participation, intrinsic value 26 political/constitutional context responsive 124 role of law 339 scope state/rule-centric 4, regulatory capture 61 regulatory defaults, and contracts 108 regulatory instruments 79, 146 modality classification 80 regulatory space 59–68 and advanced capitalism 62 definition 59, 63 and democracy 60 historical timing 66 national peculiarities 65–6 and organizational structure 67 regulatory trilemma autopoiesis 130 self-referential systems 70 rent-seeking 8, 46, 94, 288, 294, 309 responsible care models 285 responsive regulation 124, 141 rules 153–75 creative compliance 164 inclusiveness 153 indeterminancy 155 interpretation 156–8 limits 153 nature of 153–8 opportunistic response 166 rule-based spheres 53 supranational 323–5 and targets see governance by targets transparency/accessibility/congruence 159 rules, enforcement 176–203 and agency behaviour see agency enforcement behaviour conversations 176 reasons for 179 guidance/waivers 177–9 monitoring and enforcement 179 supervised rule formation 178 351 352 Index rule precision 159–64 balance of factors 163 costs of applying rule 163 costs of rule making 163 efficiency criterion 162–3 measurement 159 optimal degree 161–4 over/under-inclusiveness 163 rate of compliance 162 tradeoffs 160 transparency/accessibility/congruence 159 Salamon, L 109 sanctions see prices and sanctions satisficing 25 Schauer, F 155 Scott, C 129, 228, 237 self-referential systems as closed system 70 regulatory trilemma 70 response to 71 social self-closure 71 and systems theory 69 self-referential systems, and legal regulation 69, 71–4 incongruence 72 over-legalization of society 72 over-socialization of law 72 relational programmes 73 self-regulation 92–6 see also enforced self-regulation benefits 93 coercive approach 95 consensual 95 and facilitative role of law 92 nature of 94 supranational regulation 316–18 shaming and naming 100, 143 Shapiro, M 260, 273, 331 Slaughter, A.-M 288, 299, 331 smart regulation 124 criteria 124 design principles 124–6 environmental policy see environmental policy optimal policy mixes see optimal policy mixes toolkit approach 124 social self-closure 71 social subordination 32–4 Stigler, G 209 strict liability 90 substantive political approaches 26–36 collective desires/aspirations 28–31 diverse experiences and preference formation 31 endogenous preferences 34–5 goals 27 irreversibility 35 public-interested redistribution 27 social subordination 32–4 Sunstein, C 27, 36, 224 supranational regulation 303–34 see also global governance code-based techniques 320 command-based mechanisms 313–15 communication 318 competition 315 consensus see self-regulation below and democracy 331, 333 enforcement 322–30 domestic officials 325 effectiveness 322 and homogenous community 332 hybridisation 320 institutionalist approaches 310–11 and law 303, 305, 332–4 legitimation 330–2 non-legal enforcement mechanisms 328 and private interest theories 308–10 private/civil enforcement non-legal enforcement mechanisms 328 through law 326 and public interest theories 306–8 public/national enforcement 325 rules 323–5 self-regulation 316–18 technical assistance 319 techniques 313 and theories of regulation 306, 312 transposability 304 synecdoche 168 systems theory 69–74, 129 and self-referential systems see self-referential systems as theory of society 69 Index targets see governance by targets taxes 86 technical assistance 319 techno-regulation 102–4 Teubner, G 70, 74, 130, 310 theories of regulation 16–17, 75 categories 16 explanatory/prescriptive elements 17 and supranational regulation 306 third way intervention 141, 143 tit-for-tat 193–6 tools see regulatory instruments classification of 79, 105 efficiency see under instrument choice torts see liability rules, changes transaction costs 19, 23, 25, 162, 211, 286 trilemma see regulatory trilemma tripartism 53–9 cooperation and corruption 55–6 efficient capture 54–9 guardianship 56–9 and public interest groups 56–8 utilitarianism 261, 266 values, prescription 36 vertical democracy 294–6 Viscusi, W 107 Vogel, D 189 voluntary disclosure 98 welfare and autonomy 224, 230, 245, 255–8, 266 economic approaches 2, 18, 26, 29, 34, 41, 43, 50, 72, 76, 82, 131, 137, 162, 306, 312 Whelan, C 164, 166 Wittgenstein, L 156 World Trade Organisation 313, 321 dispute resolution procedures 323, 325, 327 Yeung, K 96, 141, 143, 152, 201, 210 Zeckhauser, R.J 107 353