Regulatory Spaces and Interactions: An Introduction
| Author | Bettina Lange |
| DOI | 10.1177/0964663903012004001 |
| Date | 01 December 2003 |
| Published date | 01 December 2003 |
| Subject Matter | Introduction |
REGULATORY SPACES
AND INTERACTIONS:
AN INTRODUCTION
BETTINA LANGE
Department of Law, Keele University, UK
ABSTRACT
This special issue draws together four contributions to debates about legal regulation.1
They focus on space and interactions as key constituents of regulatory dynamics. The
articles advance analysis of legal regulation also on the basis of new empirical data.
Two contributions discuss novel forms of regulation, such as meta-regulation and the
reform of health and safety regulation in Thailand. Two further articles examine the
challenges faced by traditional state regulation through new tasks of systemic risk
management, such as facilitating law and science interactions and ensuring animal
disease control. The authors share a commitment to a range of fundamental values
informing regulation, such as respect for animal welfare, the protection of the health
and safety of workers, visions of justice which involve redistributive values and a
concern with context-sensitive, proceduralized law which operates with a reflexive
awareness of its own limitations. The first part of this introduction outlines space and
interactions as key themes in the literature on legal regulation while the second part
highlights the contribution of the articles in this area.
WHAT IS LEGAL REGULATION?
Defining legal regulation involves reference to images of space and
interactions. What are the boundaries of regulating through law and
what are its constituent interrelating elements? Academic research
has constructed legal regulation broadly:
[. . .] we can think of regulation as any process or set of processes by which
norms are established, the behaviour of those subject to the norms monitored
or fed back into the regime, and for which there are mechanisms for holding the
behaviour of regulated actors within the acceptable limits of the regime (whether
by enforcement action or by some other mechanism) (Scott, 2001: 331).
SOCIAL & LEGAL STUDIES 0964 6639 (200312) 12:4 Copyright © 2003
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
www.sagepublications.com
Vol. 12(4), 411–423; 038414
412
SOCIAL & LEGAL STUDIES 12(4)
Legal regulation has been analysed from various theoretical perspectives,
such as welfare economics (Ogus, 1994), Marxism (Jessop, 2001b: 83–92),
Foucauldian ‘governmentality analysis’ (Burchell, Gordon and Miller, 1991;
Dean, 1999), discourse analysis (Black, 2002b: 163–196) and systems theory
(Lange, 1998: 449–471; Paterson, 2000: 7). It has been studied in many arenas,
such as health and safety, environmental and consumer protection as well as
the supply of utility and financial services, competition policy and taxation
regimes. In addition, there are theoretical justifications for a broad concep-
tion of legal regulation. Regulation can be perceived as a response to risk and
risk has been defined as a pervasive feature of reflexively modernized societies
(Beck, 1986). Attempts to control and spread risk, also through legal regu-
lation, produce new systemic risks which in turn call for more regulation
(Lash and Wynne, 1986: 4; Braithwaite, 2000: 228). From this perspective
regulation extends to a wide range of social, including private sphere,
relationships such as families and employer and employee relationships. How
the boundaries around legal regulation are drawn impinges on what are
described as its constituent, interacting elements. From a postmodernist
perspective, law is considered to operate increasingly through norms. It is no
longer inevitably connected to the powers of a central sovereign state. Its
location is shifting. Law is finding a new space in the decentred locations of
detailed regulatory apparatuses, such as administrative and medical regimes
(Rose and Valverde, 1998: 541, 546; Black, 2001).
LEGAL REGULATION AS STATE-ECONOMY INTERACTIONS
A significant segment of the literature, however, defines legal regulation as
the regulation of economic activities and hence privileges state-economy
interactions in its analysis (see for example Picciotto, 2002: 1; Kagan, 2002:
2). State intervention in the economy can be enabled through legal regulation.
Focusing legal regulation on state-economy interactions provides the concept
with a clear focus and hence may enhance its analytical force (Black, 2002a: 7).
The term ‘state’ can be understood to refer to a sovereign body, endowed
with territorial power and means of force. It operates through but is separ-
ate from the institutions of formal political authority (Dean, 1999: 9). In
the literature on legal regulation economic activity is usually understood as
the organized production, distribution, exchange and consumption of scarce
goods and services, not including economic relationships in the private sphere,
such as labour in the family home or barter exchanges in private markets.2
Excluded from this definition of economy are also the social relationships
which underpin economic ones, such as the reproduction of labour. From a
neo-classical economics perspective markets have been perceived as key to
economic organization and hence alternative forms, such as kinship net-
works, hierarchical allocation and self-sufficiency have received less attention
in the literature on legal regulation (Thompson et al., 1991; Carruthers and
Babb, 2000: 2–4; Jessop, 2001a: 214).
LANGE: REGULATORY SPACES AND INTERACTIONS
413
Understanding legal regulation as interactions between political and eco-
nomic actors has also been reflected in characterizations of enforcement
styles as ‘responsive’, ‘reflexive’ and ‘co-regulatory’ (Nonet and Selznick,
1978; Ayres and Braithwaite, 1992; Osborne and Gaebler, 1992). State-market
relationships, however, are changing and this is further discussed in this
special issue. Firstly, clear demarcation lines between states and markets are
disappearing through the privatization of states and the domination of
markets by powerful corporate actors (Picciotto, 2001: 337). Regulatory
communities are emerging, consisting of both governmental and non-
governmental actors, in which the latter ‘share in the state’s authority to make
decisions’ (Black, 2002a: 6). It has been argued that, especially in developing
countries, globalization promotes the development of such hybrid state-
private sector entities, with the private moving into the public sector (Drache,
2001: 13). Nation states have been described as increasingly weak and frag-
mented but they have not yet disappeared (Jessop, 1999: 37). Interstate
politics may be simply conducted by different and new means, such as inter-
national networks for the formation of policy (Picciotto, 1996–1997; Cioffi,
2000: 572).
Secondly, novel forms of legal regulation are developing in response to
changing state-market relationships. The regulatory state thesis suggests that
the boundaries of the traditional Keynesian welfare state have been rolled
back through various forms of deregulation. The punitive state, however,
still exercises regulatory controls and deregulation of the welfare state has
involved reregulation (Hood and Scott, 1996; Braithwaite, 2000: 227). A new
regulatory state has emerged which exercises increasing power, not through
regulatory structures associated with public expenditure – dominium type
powers in Daintith’s classification – but through independent regulatory
agencies (Daintith, 1994: 213; Majone, 1994; Majone, 1996; Hood et al.,
2001: 3–4). The activities of these new independent regulatory agencies and
the remains of traditional state activity, such as the initiation of primary
and secondary legislation in central government departments are in turn
controlled through novel infrastructures of regulation, also called ‘meta-
regulation’ (Scott, 2000: 38). They regulate the exercise of public powers, for
instance by requiring compliance with market rationality, expressed through
the principles of efficiency, effectiveness and economy, also in order to ‘lift
burdens on...
AND INTERACTIONS:
AN INTRODUCTION
BETTINA LANGE
Department of Law, Keele University, UK
ABSTRACT
This special issue draws together four contributions to debates about legal regulation.1
They focus on space and interactions as key constituents of regulatory dynamics. The
articles advance analysis of legal regulation also on the basis of new empirical data.
Two contributions discuss novel forms of regulation, such as meta-regulation and the
reform of health and safety regulation in Thailand. Two further articles examine the
challenges faced by traditional state regulation through new tasks of systemic risk
management, such as facilitating law and science interactions and ensuring animal
disease control. The authors share a commitment to a range of fundamental values
informing regulation, such as respect for animal welfare, the protection of the health
and safety of workers, visions of justice which involve redistributive values and a
concern with context-sensitive, proceduralized law which operates with a reflexive
awareness of its own limitations. The first part of this introduction outlines space and
interactions as key themes in the literature on legal regulation while the second part
highlights the contribution of the articles in this area.
WHAT IS LEGAL REGULATION?
Defining legal regulation involves reference to images of space and
interactions. What are the boundaries of regulating through law and
what are its constituent interrelating elements? Academic research
has constructed legal regulation broadly:
[. . .] we can think of regulation as any process or set of processes by which
norms are established, the behaviour of those subject to the norms monitored
or fed back into the regime, and for which there are mechanisms for holding the
behaviour of regulated actors within the acceptable limits of the regime (whether
by enforcement action or by some other mechanism) (Scott, 2001: 331).
SOCIAL & LEGAL STUDIES 0964 6639 (200312) 12:4 Copyright © 2003
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
www.sagepublications.com
Vol. 12(4), 411–423; 038414
412
SOCIAL & LEGAL STUDIES 12(4)
Legal regulation has been analysed from various theoretical perspectives,
such as welfare economics (Ogus, 1994), Marxism (Jessop, 2001b: 83–92),
Foucauldian ‘governmentality analysis’ (Burchell, Gordon and Miller, 1991;
Dean, 1999), discourse analysis (Black, 2002b: 163–196) and systems theory
(Lange, 1998: 449–471; Paterson, 2000: 7). It has been studied in many arenas,
such as health and safety, environmental and consumer protection as well as
the supply of utility and financial services, competition policy and taxation
regimes. In addition, there are theoretical justifications for a broad concep-
tion of legal regulation. Regulation can be perceived as a response to risk and
risk has been defined as a pervasive feature of reflexively modernized societies
(Beck, 1986). Attempts to control and spread risk, also through legal regu-
lation, produce new systemic risks which in turn call for more regulation
(Lash and Wynne, 1986: 4; Braithwaite, 2000: 228). From this perspective
regulation extends to a wide range of social, including private sphere,
relationships such as families and employer and employee relationships. How
the boundaries around legal regulation are drawn impinges on what are
described as its constituent, interacting elements. From a postmodernist
perspective, law is considered to operate increasingly through norms. It is no
longer inevitably connected to the powers of a central sovereign state. Its
location is shifting. Law is finding a new space in the decentred locations of
detailed regulatory apparatuses, such as administrative and medical regimes
(Rose and Valverde, 1998: 541, 546; Black, 2001).
LEGAL REGULATION AS STATE-ECONOMY INTERACTIONS
A significant segment of the literature, however, defines legal regulation as
the regulation of economic activities and hence privileges state-economy
interactions in its analysis (see for example Picciotto, 2002: 1; Kagan, 2002:
2). State intervention in the economy can be enabled through legal regulation.
Focusing legal regulation on state-economy interactions provides the concept
with a clear focus and hence may enhance its analytical force (Black, 2002a: 7).
The term ‘state’ can be understood to refer to a sovereign body, endowed
with territorial power and means of force. It operates through but is separ-
ate from the institutions of formal political authority (Dean, 1999: 9). In
the literature on legal regulation economic activity is usually understood as
the organized production, distribution, exchange and consumption of scarce
goods and services, not including economic relationships in the private sphere,
such as labour in the family home or barter exchanges in private markets.2
Excluded from this definition of economy are also the social relationships
which underpin economic ones, such as the reproduction of labour. From a
neo-classical economics perspective markets have been perceived as key to
economic organization and hence alternative forms, such as kinship net-
works, hierarchical allocation and self-sufficiency have received less attention
in the literature on legal regulation (Thompson et al., 1991; Carruthers and
Babb, 2000: 2–4; Jessop, 2001a: 214).
LANGE: REGULATORY SPACES AND INTERACTIONS
413
Understanding legal regulation as interactions between political and eco-
nomic actors has also been reflected in characterizations of enforcement
styles as ‘responsive’, ‘reflexive’ and ‘co-regulatory’ (Nonet and Selznick,
1978; Ayres and Braithwaite, 1992; Osborne and Gaebler, 1992). State-market
relationships, however, are changing and this is further discussed in this
special issue. Firstly, clear demarcation lines between states and markets are
disappearing through the privatization of states and the domination of
markets by powerful corporate actors (Picciotto, 2001: 337). Regulatory
communities are emerging, consisting of both governmental and non-
governmental actors, in which the latter ‘share in the state’s authority to make
decisions’ (Black, 2002a: 6). It has been argued that, especially in developing
countries, globalization promotes the development of such hybrid state-
private sector entities, with the private moving into the public sector (Drache,
2001: 13). Nation states have been described as increasingly weak and frag-
mented but they have not yet disappeared (Jessop, 1999: 37). Interstate
politics may be simply conducted by different and new means, such as inter-
national networks for the formation of policy (Picciotto, 1996–1997; Cioffi,
2000: 572).
Secondly, novel forms of legal regulation are developing in response to
changing state-market relationships. The regulatory state thesis suggests that
the boundaries of the traditional Keynesian welfare state have been rolled
back through various forms of deregulation. The punitive state, however,
still exercises regulatory controls and deregulation of the welfare state has
involved reregulation (Hood and Scott, 1996; Braithwaite, 2000: 227). A new
regulatory state has emerged which exercises increasing power, not through
regulatory structures associated with public expenditure – dominium type
powers in Daintith’s classification – but through independent regulatory
agencies (Daintith, 1994: 213; Majone, 1994; Majone, 1996; Hood et al.,
2001: 3–4). The activities of these new independent regulatory agencies and
the remains of traditional state activity, such as the initiation of primary
and secondary legislation in central government departments are in turn
controlled through novel infrastructures of regulation, also called ‘meta-
regulation’ (Scott, 2000: 38). They regulate the exercise of public powers, for
instance by requiring compliance with market rationality, expressed through
the principles of efficiency, effectiveness and economy, also in order to ‘lift
burdens on...
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