Regulation and Social Solidarity
| Date | 01 September 2006 |
| Published date | 01 September 2006 |
| Author | Tony Prosser |
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00363.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 3, SEPTEMBER 2006
ISSN: 0263-323X, pp. 364±87
Regulation and Social Solidarity
Tony Prosser*
Justifications for regulation are commonly based on the identification
of market failures. This is however inadequate to account for much
regulation, and sees regulation as inherently second best to market
allocations. This article argues that, although some regulation will be
based on market failure, other justifications can be found in the pro-
tection of rights and in the maintenance of social solidarity.
Theoretical support for this last rationale can be found in the work
of Durkheim and Duguit and the concept of public service. To accept
this rationale for regulation has important implications both for
regulatory policies and regulatory instruments.
INTRODUCTION
Regulation is pervasive in all modern economies, yet it has had an
increasingly bad press in recent years, for example, in much of the debate
around `cutting red tape', `lifting the regulatory burden', and `better
regulation', a debate which achieved a surprising degree of prominence
during the 2005 United Kingdom general election. This combination of
pervasiveness and apparently questionable legitimacy makes it particularly
important to analyse why we regulate: what are our underlying regulatory
rationales? I shall attempt to ask these questions in this article, which will
proceed through a three-stage argument. First, I shall suggest that the most
commonly-cited regulatory rationale, that of market failure, is inadequate
either to explain or to justify normatively the range of regulatory tasks
currently undertaken. Secondly, I shall suggest that one implication of the
364
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, The University of Bristol, Wills Memorial Building, Bristol
BS8 1RJ, England
T.Prosser@bristol.ac.uk
I would like to thank Roger Brownsword, Harry McVea, Bronwen Morgan, Colin Scott,
and the anonymous referees of this journal for their extremely helpful comments on drafts
of this paper.
market failure approach is to see regulation as a second best to market
allocation, but that this also does not adequately explain or justify current
practice. My final step will be to suggest a further rationale for regulation,
that of social solidarity, drawing on the work of Emile Durkheim, hitherto
somewhat neglected in regulatory studies, which provides a more appro-
priate description and justification for much regulatory activity. I shall then
conclude by discussing some implications of my argument for the design of
regulatory institutions and for regulatory practice.
It is important to underline that I am not suggesting that social solidarity
provides the sole justification for regulation. In many cases market failure
will be a reason, or more accurately a prerequisite, for regulation, and
normative justification for regulation can be found in economic principle.
However, I shall argue with Hollis and Nell that this is not enough:
[p]olitical economy is the science of applying sound economic theories to men
in a social setting. It will have to combine a sound economic theory with a
sound social and political theory.
1
It is in fact possible to make a threefold distinction between different rationales
for regulation; those based on economic principles, those based on individual
rights, and those based on social solidarity.
2
The first is well covered in many
existing accounts of regulation.
3
For the second, recent work has stressed the
regulatory role in recognizing human rights and human dignity, especially in
the context of the regulation of biotechnology.
4
The third rationale, that of
social solidarity, is relatively neglected, but has found expression in continental
legal concepts of public service and in some aspects of the Community law
approach to services of general interest.
5
The three rationales set out here are
similar to Roger Brownsword's `bioethical triangle' distinguishing between
utilitarianism, human rights, and dignitarianism in the regulation of bioethics.
6
He points to the `essentially oppositional' implications of these approaches,
largely because of differing views of the role of informed consent. Approaches
365
1M.Hollis and E. Nell, Rational Economic Man: A Philosophical Critique of Neo-
Classical Economics (1975) 265.
2 See, also, T. Prosser, The Limits of Competition Law: Markets and Public Services
(2005) ch. 2.
3 For overviews, see A. Ogus, Regulation: Legal Form and Economic Theory (1994);
R. Baldwin and M. Cave, Understanding Regulation: Theory, Strategy and Practice
(1999).
4 See R. Brownsword, `What the World Needs Now: Techno-Regulation, Human
Rights and Human Dignity' in Global Governance and the Quest for Justice, Vol. 4
Human Rights, ed. R. Brownsword (2004) 203; R. Brownsword, `Code, Control and
Choice: Why East is East and West is West' (2005) 25 Legal Studies 1.
5 See, for example, C. Barnard, `EU Citizenship and the Principle of Solidarity' in
Social Welfare and EU Law, eds. M. Dougan and E. Spaventa (2005) 157 and the
Commission's Green Paper on Services of General Interest COM(2003)270 final.
6R.Brownsword, `Stem Cells and Cloning: Where the Regulatory Consensus Fails'
(2004±5) 39 New England Law Rev. 535.
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School
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