Regulatory Conversations
| Date | 01 March 2002 |
| Published date | 01 March 2002 |
| Author | Julia Black |
| DOI | http://doi.org/10.1111/1467-6478.00215 |
JOURNAL OF LAW AND SOCIETY
VOLUME 29, NUMBER 1, MARCH 2002
ISSN: 0263-323X, pp. 163–96
Regulatory Conversations
Julia Black*
The article proposes a new site of analysis for the study of regulation:
regulatory conversations, and a new theoretical approach: discourse
analysis. Regulatory conversations, the communicative interactions that
occur between all involved in the regulatory `space', are an important
part of most regulatory systems. Discourse analysis, the study of the use
of language and communication, suggests that such interactions are
constitutive of the regulatory process, that they serve important
functions, that they can be the basis of co-ordinated action, and that
they are important sites of conflict and contestation. The article explores
five key contentions of discourse analysis, considering how each may
shed light on aspects of regulatory processes. These are, first as to the
meaning of language and co-ordination of social practices; second, as
to the construction of identities; third, the relationship of language,
thought, and knowledge; fourth, the relationship of language and
power, and finally, that meaning, thought, knowledge, and power are
open to contestation and change.
The study of regulation is characterized by a kaleidoscope of lenses, notably
economics,
1
cultural/anthropological theory,
2
institutionalism,
3
and systems
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*Law Department and Centre for the Analysis of Risk and Regulation,
London School of Economics and Political Science, Houghton Street,
London WC2A 2AE, England
This paper was completed whilst I held a British Academy/Leverhulme Trust Senior
Research Fellowship and I gratefully acknowledge the scheme’s support. I thank Rob
Baldwin and Christine Parker for comments on an earlier version; views, errors, and
omissions remain my own.
1 G. Stigler, ‘The Economic Theory of Regulation’ 1971 2 Bell J. of Economics 1; R.
Posner, ‘Theories of Economic Regulation’ (1974) 5 Bell J. of Economics and
Management Science 335; S. Peltzman, ‘Towards a More General Theory of
Regulation’ (1976) 19 J. of Law and Economics 211.
2
Particularly Hood, who has used the hierarchy/community/competition/fate matrix of
world views developed in anthropological cultural theory as the base for describing
types of techniques of governmental control: C. Hood, Art of the State (1998), adapted
theory,
4
through which regulation is viewed, though little work has been
done on how they might be integrated, or whether they are instead
‘incommensurable paradigms’.
5
Nevertheless, this article proposes another
perspective, of discourse analysis. It is argued that examining regulation
through this perspective may draw attention to aspects of the regulatory
process that are as yet relatively unexplored, and provide a theoretical frame
in which to place observations that have already been noted in empirical
research, but which are under-theorized. In other words, it may help us to see
what we have not already seen, and understand better what it is we have.
Why discourse analysis? Because, it is contended, regulation is in large
part a communicative process. Communications between all those involved
in the regulatory process concerning that regulatory system are an important
part of their operation. Understanding such regulatory conversations is thus
central to understanding the ‘inner life’ of that process.
6
Why then not look
to discourse analysis, that loosely defined body of theory that ranges across
the social sciences and humanities which is concerned with the analysis of
language and communication?
Discourse analysis would go one step further in its own justification, for it
contends that social action can be comprehended only by comprehending
discourse, that discourse is the basis of social action in that it is constitutive,
functional, and coordinative.
7
It is constitutive in that it builds objects,
worlds, minds, identities, and social relations, not just reflects them. It is
functional in that it is designed to achieve certain ends, for example, to
persuade (its rhetorical and argumentative aspect). It is coordinating in that
164
in C. Hood, C. Scott, O. James, G. Jones, and T. Travers, Regulation Inside
Government (1999) and C. Hood, H. Rothstein, and R. Baldwin, The Government of
Risk (2001); C. Hall, C. Scott and C. Hood, Telecommunications Regulation: Culture,
Chaos and Interdependence Inside the Regulatory Process (2000).
3 See, for example, M. Thatcher, The Politics of Telecommunications: National
Institutions, Convergence and Change in Britain and France (1999).
4 G. Teubner, ‘Substantive and Reflexive Elements in Modern Law’ (1983) 17 Law
and Society Rev. 239; ‘Juridification – Concepts, Aspects, Limits, Solutions’ in
Juridification of the Social Spheres, ed. G. Teubner (1987); ‘After Legal
Instrumentalism? Strategic Models of Post-Regulatory Law’ in Dilemmas of Law
in the Welfare State, ed. G. Teubner (1986); R. Veld et al., Autopoiesis and
Configuration Theory: New Approaches to Societal Steering (1991).
5 In contrast to organizational theory, see, for example, G. Weaver and G. Gioia,
‘Paradigms Lost: Incommensurability vs Structurationist Inquiry’ (1994) 15
Organization Studies 565.
6
E. Meidinger, ‘Regulatory Culture: A Theoretical Outline’ (1987) 9 Law and Policy
355; J. March and J. Olsen, Rediscovering Institutions (1989); P. DiMaggio and W.
Powell, ‘Introduction’ in W. Powell and P. DiMaggio, The New Institutionalism in
Organizational Analysis (1991): ‘inner life’ is used here to refer to the interactions of
all engaged in the process, not just bureaucrats engaged in its administration. Contrast
C. Hood, H. Rothstein, and R. Baldwin, The Government of Risk (2001) 141.
7 M. Wetherell, ‘Themes in Discourse Research: The Case of Diana’ in Discourse
Theory and Practice: A Reader, eds. M. Wetherell, S. Taylor, and S. Yates (2001)
16.
ßBlackwell Publishers Ltd 2002
in the activity of producing meaning and shared senses it requires and
produces coordination, and the possibility of coordination is at the basis of
social life.
If we were to transpose those claims to the context of regulation, the
contention would be that discourse forms the basis of regulation. It
constitutes regulation in that it builds understandings and definitions of
problems (for example, ‘market failure’, ‘risk’) and acceptable and
appropriate solutions (criminalization, ‘meta-regulation’, ‘precautionary
principle’), it builds operational categories (for example, ‘compliance’),
and produces the identities of and relations between those involved in the
process. It is functional in that it is designed to achieve certain ends (for
example, the strategic use of rule design; the deployment of skills of
argumentation and rhetoric by all involved at every stage). It is coordinating
in that it produces shared meanings as to regulatory norms and social
practices which then form the basis for action (for example, the formation of
regulatory interpretive communities).
These are very broad claims, and discourse analysis is a very broad
church. How could we take the analysis further both theoretically and
empirically? At the theoretical level, this article will focus on five principal
contentions as to the relationship of discourse and social practices which
stem from the above-mentioned constitutive, functional, and coordinative
claims, and consider how we might think about them in a regulatory context.
In doing so it will draw on writers that are considered to be within the
mainstreams of discourse theory, on some others within related paradigms
that have been relevant in legal and socio-legal theory,
8
as well as on
discourse analysis as employed in organizational theory to illustrate some of
the general claims.
9
The five contentions that will be explored are first, as to meaning and
coordination: that the meaning of language is in its use, that use and
therefore meaning will vary with context and with genre, and that the
development of shared linguistic practices entails coordination and forms the
basis of social action. Secondly, as to the construction of identities: that
communicative interaction is representative and in particular produces
identities, which in turn affect social action. Thirdly, as to the relationship of
language, thought, and knowledge: that language frames thought, and
produces and reproduces knowledge. The fourth, closely related, contention
is that language is intimately related to power: that it is marked by the values
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8 It is not intended, however, to survey the field of law and communication as well: for
an overview see, for example, D. Nelken, ‘Law as Communication: Constituting the
Field’ in Law as Communication, ed. D. Nelken (1996).
9 For introductions to discourse analysis in organizational theory, see L. Putnam, N.
Phillips, and P. Chapman, ‘Metaphors of Communication and Organization’ in
Handbook of Organization Studies , eds. S. Clegg, C. Hardy, and W. Nord (1996);
Clegg, Hardy, and Nord, id.; D. Grant, T. Keenoy, and C. Oswick, Discourse and
Organization (1998).
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