Regulation as Facilitation: Negotiating the Genetic Revolution
| DOI | http://doi.org/10.1111/1468-2230.00171 |
| Published date | 01 September 1998 |
| Date | 01 September 1998 |
Regulation as Facilitation: Negotiating the Genetic
Revolution
Julia Black*
Regulation of genetic technology, some would claim, is an oxymoron. Genetic
technology is simply out of control.1If you turn to ask what structures exist to
regulate genetic technology, however, then you find a mass of legal regulations,
non-legal rules, codes, circulars, practice notes, international conventions, and
ethical codes. There exists an enormously complex set of advisory bodies,
regulatory bodies, committees, professional bodies, and industry associations,
operating at an international, national and sub-national level. In the UK, at the
national level alone, there are over eleven different bodies involved in the
regulation of some aspect of genetic technology. Surely in this morass of
regulation someone, somewhere, must be exerting some form of control?
But the charge is more complex: it is essentially that control is not being
exercised over what it should be. That regulation is not finding the right answers,
or indeed asking the right questions. Moreover, that science is defining the agenda:
in Beck’s phrase, the debate about its course occurs as an obituary for activities
begun long ago.2
Indeed, one of the striking aspects both of the debate about genetic technology
and of its regulation is the number of different conceptualisations of the ‘problem’
which genetic technology poses and thus of the solutions that should be found. It is
seen variously to be an issue of risk (to health, the environment), a question of
choice (of patients, consumers), a matter of property rights (to patents, an
individual’s DNA), of confidentiality (against employers, insurance companies,
other family members), or a question of ethics. Moreover, the definition of the
problem which is adopted by regulation and the solutions proposed are not always
those that others would share.
Given these fundamental divergences of views, it is suggested that regulation has
a role to play which is not, or not simply, about control, but rather about
facilitation. Regulation has an important role to play in connecting the arguments
of participants, in facilitating the integration of the wide range of views as to the
appropriate course that the technology and its regulation should take. The first task
of this article is to explore the extent to which this occurs at present: to examine
just what questions the current regulation of genetic technology asks, and what
questions others consider it should be asking. What do the regulatory systems and
The Modern Law Review Limited 1998 (MLR 61:5, September). Published by Blackwell Publishers,
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* Law Department, London School of Economics and Political Science.
My thanks go to Rob Baldwin, Anne Barron, Damian Chalmers, Tim Cross and Gunther Teubner for
reading and commenting on an earlier draft, and to the participants of the Modern Law Review
conference on Law and Genetics for their responses to the paper given at the conference.
Responsibility for views, errors and omissions remains my own.
1 A view most forcefully put by Beck: U. Beck, Risk Society: Towards a New Modernity (London:
Sage, 1992, trans M. Ritter); further U. Beck, Ecological Politics in an Age of Risk (London: Polity
Press, 1992, trans A. Weisz); id,Ecological Enlightenment: Essays on the Politics of the Risk
Society (New Jersey, Humanities Press, 1995).
2 Beck, Ecological Politics in an Age of Risk, ibid 203.
their participants consider their purpose and rationale to be, and what gaps exist
between that internal perspective and that of those outside the regulatory system as
to the central issues which should be addressed.
The main purpose of the article is then to consider how regulation may facilitate
the integration of those different perspectives. Integration does not mean the
replacement of a multitude of perspectives with the regulatory imposition of just
one. Rather integration is the full recognition of different perspectives in the
regulatory process. The call for integration in this form is one which is often made.
The ways to achieving that integration, it is frequently advocated, are the
development of forms and forums of consensus-building and co-operation, and the
adoption of communicative, procedural models of regulation. The labels vary
across writers and disciplines: ‘proceduralisation’,3‘civic science’,4‘scientific
proceduralism’,5or simply ‘democratisation’,6but they share a common desire.
That is to open up the decision process, to deny any one voice authority in that
process, and through the integration of views and perspectives to arrive at accepted
solutions to intractable problems. The negotiation of regulation.
To the extent that the facilitation of such negotiative, or integrationist, models
requires simply institutional re-design, then finding ways to achieve this is
complicated although solutions can probably be found, at least at the level of policy
formation. However it is suggested that facilitating integration also requires that
attention be paid to other dimensions of regulation which are sometimes overlooked,
notably those of cognition and communication. In particular, attention has to be paid
to the standing of different parties in that negotiation, to the weight or authority which
will be ascribed by participants to each voice, and to the barriers to communication
which it is suggested that different cognitive systems give rise.
With respect to the issues of standing and of cognitive authority, then, at present,
the scientific voice is that which is granted the status of objectivity, and thus, in the
current rules of debate, authority and legitimacy. Lay views are often seen as
irrational, based in ignorance, as mere emotions or prejudices. As such they have
only such weight as is necessary to afford them in a democratic society. They are
either an irritation or something which should be indulged, depending on your view
of popular politics. But the scientific language is that which is accepted; it is the
official language of debate. For ‘lay’ views to be accepted, then (to an extent) they
have to re-translate themselves into the language of science, and in so doing accept
the scientific definition of the problem. For a negotiation to occur which fully
recognises and gives standing to other voices, there is a need for a reorientation of
the cognitive aspect of regulation. This requires in part a re-conceptualisation of
the view that ‘expert = objective, lay = irrational’. It is on such an exercise that a
number of writers have embarked, and the nature of that exercise will be explored
in part here.
3 R. Mayntz, ‘The Conditions of Effective Public Policy: A New Challenge for Policy Analysis’
(1983) 11 Policy and Politics 123; G. Teubner, ‘Substantive and Reflexive Elements in Modern
Law’ (1983) 17 Law & Soc Rev 239; G. Teubner, ‘After Legal Instrumentalism? Strategic Models of
Post-Regulatory Law’ in G. Teubner (ed), Dilemmas of Law in the Welfare State (Berlin: de Gruyter,
1985); H. Willke, ‘Societal Regulation through Law?’ in G. Teubner and G. Febbrajo (eds), State,
Law, Economy as Autopoietic Systems (Milan: Guiffre, 1992).
4 T. O’Riordan, ‘Exploring the Role of Civic Science in Risk Management’ in C. Hood and D. Jones
(eds), Accident and Design: Contemporary Debates in Risk Management (London: UCL Press,
1996).
5 K.S. Shrader-Frechette, Risk and Rationality: Philosophical Foundations for Populist Reforms
(Berkeley: University of California Press, 1991).
6 Beck, Ecological Politics in an Age of Risk, n 1 above.
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There is a more fundamental problem, however, which it is suggested here faces
an approach to regulation which seeks to facilitate integration. It is one which
occurs on the communicative dimension, and is one which the idea of ‘re-
translation’ emphasises. It is that the languages of science, commerce, ethics,
ecology, law are foreign to each other; neither can hardly understand what the
other is saying, let alone why they are saying it. Until this problem is addressed,
simply focusing on the structural dimension, providing the structures in which
different actors can participate, will not lead to a negotiated agreement. This is
because the different participants speak different languages. The conditions for real
communication do not exist. This ‘dialogue of the deaf’ is particularly striking in
the context of genetics. What is needed, it is suggested, is the means by which this
language barrier can be overcome. This cannot be provided by the development of
a common language, however, for the cognitive differences are too fundamental.
Nor should it be provided by an ‘official’ language, for that would represent the
dominance of one cognitive perspective over all others. Rather, it is suggested,
regulation needs to facilitate communication by taking on the role of interpreter or
translator: putting the views of each set of participants into a language that the
others can understand. It can thereby enable the integration, the negotiation of
regulation, which is required.
Regulation: structural, cognitive and communicative dimensions
In analysing the regulation of genetic technology it is proposed to focus on three
dimensions of regulation: the structural, the cognitive and the communicative.
There are thus other dimensions which are here excluded, notably that of
preferences: the article will not explore the different interests which participants
have nor how they are pursued.7
The structural dimension is essentially the institutional context in which
regulation occurs. The ability of actors to enter a particular regulatory or decision
making forum is structured by institutional rules and norms, both legal and non-
legal.8Some may be able to access that forum relatively easily, others may find
that they are excluded from it, or can only enter in a limited way. So there may be
insiders and outsiders with respect to a particular forum: those who have access to
a particular forum and those who do not.
The cognitive dimension refers to the perceptions of participants, their ‘world
views’, their rationalities, their operating logics.9The communicative dimension
refers to the communicative interaction between participants.10 The dimensions
may interact. Thus the non-legal norms which may define entry to a particular
forum or the standing of a participant in that forum may themselves be defined by
7 There are a number of analyses of the relationship between preferences and perceptions: for a
discussion of the relationship between the cognitive aspect and that of preferences in the context of
institutional analysis see J. Black, ‘New Institutionalism and Naturalism in Socio-Legal Analysis:
Institutionalist Approaches to Regulatory Decision Making’ (1997) 19 Law and Policy 51.
8 I am here drawing on sociological institutionalist analyses of decision making: see in particular R.
Scott, Institutions and Organizations (California: Sage, 1995); W. Powell and P. DiMaggio (eds),
The New Institutionalism in Organisational Analysis (Chicago: Univ Chicago Press, 1992).
9 For a discussion see for example the references cited in n 8 above, and R. Friedland and R. Alford,
‘Bringing Society Back In: Symbols, Practices and Institutional Contradictions’ in Powell and
DiMaggio, n 8 above.
10 It thus clearly has resonance with the communicative models of Habermas; most recently J.
Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy
(Cambridge: Polity Press, 1996).
September 1998] Regulation as Facilitation
The Modern Law Review Limited 1998 623
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