The Economization of Politics: Meta-Regulation as a Form of Nonjudicial Legality
| Author | Bronwen Morgan |
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1177/0964663903012004004 |
| Subject Matter | Journal Article |
THE ECONOMIZATION OF
POLITICS: META-REGULATION
AS A FORM OF NONJUDICIAL
LEGALITY
BRONWEN MORGAN
Oxford University, UK
ABSTRACT
Recent developments in regulatory reform strategies increasingly focus on control-
ling the process of regulation itself, rather than regulating social and individual action
directly. This article explores the reflexive systematization of regulatory policy by
focusing on institutions and processes that embed regulatory review mechanisms
deploying economic rationality into the every-day routines of governmental policy-
making. It explores both the social logic underlying this phenomenon of ‘meta-
regulation’, and its political implications, primarily in relation to a particular instance
of meta-regulation established in Australia in the 1990s. The social logic of meta-
regulation is characterized as an instance of nonjudicial legality, situated at the inter-
section of two trends – an increasing legalization of politics and a growing reliance on
nonjudicial mechanisms of accountability. The political implications can be summed
up as an ‘economization’ of regulatory politics. Meta-regulation excludes competing
ways of understanding regulatory policy choices, causing bureaucrats to ‘translate’
aspects of social welfare that previously may have been expressed in the language of
need, vulnerability or harm into the language of market failures or market distortion.
This process tends to silence certain critical modes of demanding justice, particularly
those that rely on moral or distributive values.
INTRODUCTION
Regulation is by now so pervasive a technique of governance that it is
to a greater and greater extent approached systemically. Governments
formulate general principles of ‘better regulation’, create Better Regu-
lation Units in executive departments, require regulatory impact analysis as a
matter of everyday policymaking procedure. This article explores a particular
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), 489–523; 038417
490
SOCIAL & LEGAL STUDIES 12(4)
facet of systematizing regulatory policy, which I call meta-regulation. It is in
some ways an ugly word, a dry, impersonal term redolent of bureaucratic
jargon. That is appropriate. For meta-regulation is mostly an affair of tech-
nical bureaucratic minutiae, the thrust and parry of setting agendas, framing
issues, and deciding priorities. But the stakes underlying meta-regulation are
neither technical nor dry. In essence, meta-regulation manages the tensions
between the ‘social’ and ‘economic’ goals of regulatory politics, tensions that
enflame passionate and highly wrought political conflict over the ethical
limits of global capitalism. Such conflict is fomenting broad-brush political
change in many directions, from the emergence of new political parties or
coalitions (One Nation in Australia, the Perot-Nader coalition on certain
issues in the US) to the violent protests in Seattle and their progeny. But it is
in the welter of technical decisions occurring day by day in the backstage
committee rooms of political arenas that the real power to shape the ultimate
ends of governance lies. And meta-regulation is a crucial forum of such
power.
The notion of meta-regulation is simple at heart: it captures a desire to
think reflexively about regulation, such that rather than regulating social and
individual action directly, the process of regulation itself becomes regulated.
The term has been used previously (Gunningham and Grabosky, 1998;
Parker, 2002) to capture developments at the intersection of state regulation
and self-regulation, where government controls the self-monitoring of
corporations. Meta-regulation in this article is equally reflexive, but focused
more on reflexivity within the confines of the state, and defined rather more
narrowly in order to capture the specific political conflict between ‘social’
and ‘economic’ goals in regulatory policy. It encompasses any set of insti-
tutions and processes that embed regulatory review mechanisms on a system-
atic basis into the every-day routines of governmental policymaking, such
that a particular form of economic rationality becomes part of the taken-for-
granted ways of policymaking. For example, under the reforms introduced
by the Australian government explored later in this article, governments
require the application of a public benefit test to justify the maintenance of
any public policy that prima facie restricts competition. Policies for which a
public benefit cannot be demonstrated must be repealed or modified so that
they do not reduce competition. This principle of regulatory reform is insti-
tutionalized as a general mechanism of governance, not confined to one-off
efforts to reform particular policy sectors, but instantiating generally appli-
cable, sector-neutral and continuously applied techniques of regulatory
reform.
This article has three parts. In the first, I argue that sites of nonjudicial
legality are important parts of what Colin Scott, following Hancher and
Moran, calls ‘regulatory space’ (Hancher and Moran, 1998; Scott, 2001), and
elaborate what I mean by this phrase in an expansive manner that captures
not only developments that relate to the economic policymaking functions
usually assumed to be the core of regulatory politics, but also in relation to
the politics of fundamental rights. Fundamental rights are relevant because
MORGAN: ECONOMIZATION OF POLITICS
491
although meta-regulation impacts in the first instance upon economic policy-
making, its effects implicate rights because it functions as a site of conflict
over the ethical limits of capitalism. Moreover, meta-regulation is only one
species of nonjudicial legality. Nonjudicial legality will be fully elaborated in
Part I. I build the concept via two avenues: the growing judicialization of
politics, and a rising interest in nonjudicial mechanisms of accountability. In
Part II of the article, I describe the meta-regulation established in Australia
in some detail, with an eye to supporting my contention that it is an instance
of nonjudicial legality.
In Part III, I illustrate how meta-regulation plays out in particular policy
areas, in order to show how it affects the substantive political stakes that
it aims to manage. Two principal effects can be demonstrated. First, meta-
regulation tends to exclude or dominate competing ways of understanding
regulatory policy choices. It institutionalizes a presumption in favour of
market governance, and this causes bureaucrats to reframe or ‘translate’
aspects of social welfare that previously may have been expressed in the
language of need, vulnerability or harm into the language of market failures
or market distortion. Not only does this translation tend to silence certain
critical modes of demanding justice, particularly those that rely on moral
or distributive values, but the institutional solutions which bureaucrats
advance to secure the ‘translated’ social welfare values render them politically
vulnerable.1
The second effect of meta-regulation is more elusive, but relates to an
attenuation of the sense of collective identity and social cohesion fostered by
the overall pattern of regulatory policy choice in a particular political com-
munity. While in broad political debates about meta-regulation, attempts
were made in the Australian context to ground alternatives to economic
rationality on various conceptions of community morality, such alternatives
had no power to ‘bite’ in the bureaucratic-technical machinations that were
ultimately dispositive. The discourse of regulatory politics therefore was
ultimately dominated by technocratic expertise articulated on behalf of
highly differentiated sub-groups in society, in ways that sidestepped as far as
possible the expression of collective values.
The article concludes by linking these substantive effects of meta-
regulation back to the notion of nonjudicial legality, gesturing towards the
broader implications of the economization of politics, a regulatory politics
increasingly shaped by technocratic bargaining in apolitical terms. It stresses
the significance of such a development given that it is even now unfolding on
a mimetic basis across countries and up to international levels of governance.
PART I: NONJUDICIAL LEGALITY
Recent work in both law and political science suggests the importance
of paying attention to the development and spread of meta-regulation.
These regimes in effect adjudicate the economic policymaking functions of
492
SOCIAL & LEGAL STUDIES 12(4)
government. I want to situate them at the intersection of two trends observed
from different disciplinary standpoints, converging from opposite directions
– particularly in the case of economic policymaking functions – at an intrigu-
ing intersection. That intersection is a site of nonjudicial legality: increasingly
legalized politics without courts or judges. While from some perspectives, the
domain of politics is increasingly populated by a growing number of courts
and judges, at the same time the legal domain – especially from the viewpoint
of those who write on regulation – has become a world of institutions other
than courts or judges, both public and private. Observations of judicializa-
tion run parallel with commentary on the importance of nonjudicial mechan-
isms of accountability. My contention is that these observational trajectories
are not incompatible but rather, intersect at sites of nonjudicial legality.
Furthermore, as elaborated...
POLITICS: META-REGULATION
AS A FORM OF NONJUDICIAL
LEGALITY
BRONWEN MORGAN
Oxford University, UK
ABSTRACT
Recent developments in regulatory reform strategies increasingly focus on control-
ling the process of regulation itself, rather than regulating social and individual action
directly. This article explores the reflexive systematization of regulatory policy by
focusing on institutions and processes that embed regulatory review mechanisms
deploying economic rationality into the every-day routines of governmental policy-
making. It explores both the social logic underlying this phenomenon of ‘meta-
regulation’, and its political implications, primarily in relation to a particular instance
of meta-regulation established in Australia in the 1990s. The social logic of meta-
regulation is characterized as an instance of nonjudicial legality, situated at the inter-
section of two trends – an increasing legalization of politics and a growing reliance on
nonjudicial mechanisms of accountability. The political implications can be summed
up as an ‘economization’ of regulatory politics. Meta-regulation excludes competing
ways of understanding regulatory policy choices, causing bureaucrats to ‘translate’
aspects of social welfare that previously may have been expressed in the language of
need, vulnerability or harm into the language of market failures or market distortion.
This process tends to silence certain critical modes of demanding justice, particularly
those that rely on moral or distributive values.
INTRODUCTION
Regulation is by now so pervasive a technique of governance that it is
to a greater and greater extent approached systemically. Governments
formulate general principles of ‘better regulation’, create Better Regu-
lation Units in executive departments, require regulatory impact analysis as a
matter of everyday policymaking procedure. This article explores a particular
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), 489–523; 038417
490
SOCIAL & LEGAL STUDIES 12(4)
facet of systematizing regulatory policy, which I call meta-regulation. It is in
some ways an ugly word, a dry, impersonal term redolent of bureaucratic
jargon. That is appropriate. For meta-regulation is mostly an affair of tech-
nical bureaucratic minutiae, the thrust and parry of setting agendas, framing
issues, and deciding priorities. But the stakes underlying meta-regulation are
neither technical nor dry. In essence, meta-regulation manages the tensions
between the ‘social’ and ‘economic’ goals of regulatory politics, tensions that
enflame passionate and highly wrought political conflict over the ethical
limits of global capitalism. Such conflict is fomenting broad-brush political
change in many directions, from the emergence of new political parties or
coalitions (One Nation in Australia, the Perot-Nader coalition on certain
issues in the US) to the violent protests in Seattle and their progeny. But it is
in the welter of technical decisions occurring day by day in the backstage
committee rooms of political arenas that the real power to shape the ultimate
ends of governance lies. And meta-regulation is a crucial forum of such
power.
The notion of meta-regulation is simple at heart: it captures a desire to
think reflexively about regulation, such that rather than regulating social and
individual action directly, the process of regulation itself becomes regulated.
The term has been used previously (Gunningham and Grabosky, 1998;
Parker, 2002) to capture developments at the intersection of state regulation
and self-regulation, where government controls the self-monitoring of
corporations. Meta-regulation in this article is equally reflexive, but focused
more on reflexivity within the confines of the state, and defined rather more
narrowly in order to capture the specific political conflict between ‘social’
and ‘economic’ goals in regulatory policy. It encompasses any set of insti-
tutions and processes that embed regulatory review mechanisms on a system-
atic basis into the every-day routines of governmental policymaking, such
that a particular form of economic rationality becomes part of the taken-for-
granted ways of policymaking. For example, under the reforms introduced
by the Australian government explored later in this article, governments
require the application of a public benefit test to justify the maintenance of
any public policy that prima facie restricts competition. Policies for which a
public benefit cannot be demonstrated must be repealed or modified so that
they do not reduce competition. This principle of regulatory reform is insti-
tutionalized as a general mechanism of governance, not confined to one-off
efforts to reform particular policy sectors, but instantiating generally appli-
cable, sector-neutral and continuously applied techniques of regulatory
reform.
This article has three parts. In the first, I argue that sites of nonjudicial
legality are important parts of what Colin Scott, following Hancher and
Moran, calls ‘regulatory space’ (Hancher and Moran, 1998; Scott, 2001), and
elaborate what I mean by this phrase in an expansive manner that captures
not only developments that relate to the economic policymaking functions
usually assumed to be the core of regulatory politics, but also in relation to
the politics of fundamental rights. Fundamental rights are relevant because
MORGAN: ECONOMIZATION OF POLITICS
491
although meta-regulation impacts in the first instance upon economic policy-
making, its effects implicate rights because it functions as a site of conflict
over the ethical limits of capitalism. Moreover, meta-regulation is only one
species of nonjudicial legality. Nonjudicial legality will be fully elaborated in
Part I. I build the concept via two avenues: the growing judicialization of
politics, and a rising interest in nonjudicial mechanisms of accountability. In
Part II of the article, I describe the meta-regulation established in Australia
in some detail, with an eye to supporting my contention that it is an instance
of nonjudicial legality.
In Part III, I illustrate how meta-regulation plays out in particular policy
areas, in order to show how it affects the substantive political stakes that
it aims to manage. Two principal effects can be demonstrated. First, meta-
regulation tends to exclude or dominate competing ways of understanding
regulatory policy choices. It institutionalizes a presumption in favour of
market governance, and this causes bureaucrats to reframe or ‘translate’
aspects of social welfare that previously may have been expressed in the
language of need, vulnerability or harm into the language of market failures
or market distortion. Not only does this translation tend to silence certain
critical modes of demanding justice, particularly those that rely on moral
or distributive values, but the institutional solutions which bureaucrats
advance to secure the ‘translated’ social welfare values render them politically
vulnerable.1
The second effect of meta-regulation is more elusive, but relates to an
attenuation of the sense of collective identity and social cohesion fostered by
the overall pattern of regulatory policy choice in a particular political com-
munity. While in broad political debates about meta-regulation, attempts
were made in the Australian context to ground alternatives to economic
rationality on various conceptions of community morality, such alternatives
had no power to ‘bite’ in the bureaucratic-technical machinations that were
ultimately dispositive. The discourse of regulatory politics therefore was
ultimately dominated by technocratic expertise articulated on behalf of
highly differentiated sub-groups in society, in ways that sidestepped as far as
possible the expression of collective values.
The article concludes by linking these substantive effects of meta-
regulation back to the notion of nonjudicial legality, gesturing towards the
broader implications of the economization of politics, a regulatory politics
increasingly shaped by technocratic bargaining in apolitical terms. It stresses
the significance of such a development given that it is even now unfolding on
a mimetic basis across countries and up to international levels of governance.
PART I: NONJUDICIAL LEGALITY
Recent work in both law and political science suggests the importance
of paying attention to the development and spread of meta-regulation.
These regimes in effect adjudicate the economic policymaking functions of
492
SOCIAL & LEGAL STUDIES 12(4)
government. I want to situate them at the intersection of two trends observed
from different disciplinary standpoints, converging from opposite directions
– particularly in the case of economic policymaking functions – at an intrigu-
ing intersection. That intersection is a site of nonjudicial legality: increasingly
legalized politics without courts or judges. While from some perspectives, the
domain of politics is increasingly populated by a growing number of courts
and judges, at the same time the legal domain – especially from the viewpoint
of those who write on regulation – has become a world of institutions other
than courts or judges, both public and private. Observations of judicializa-
tion run parallel with commentary on the importance of nonjudicial mechan-
isms of accountability. My contention is that these observational trajectories
are not incompatible but rather, intersect at sites of nonjudicial legality.
Furthermore, as elaborated...
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