Values and Purpose in Government: Central‐local Relations in Regulatory Perspective
| Published date | 01 March 2002 |
| DOI | http://doi.org/10.1111/1467-6478.00210 |
| Date | 01 March 2002 |
JOURNAL OF LAW AND SOCIETY
VOLUME 29, NUMBER 1, MARCH 2002
ISSN: 0263-323X, pp. 27–55
Values and Purpose in Government: Central-local Relations
in Regulatory Perspective
Peter Vincent-Jones*
This paper explores the relationship between theories of regulation and
governmentality, showing how a synthesis of the two approaches may
be used in the analysis of central-local relations. The basis of the
current trend towards greater partnership and cooperation in the
regulation of local by central government is argued to lie in the linking
of increasingly selective imperium and dominium controls with
`responsibilization'strategies involving techniques of accounting,
audit, and contracting. Following Nonet and Selznick, the substantive
and purposive nature of state action is placed at the centre of the
analysis. In this perspective, the ideal of responsive regulation implies
not just technical effectiveness, but the harnessing of regulatory forces
and `governmental'resources in endeavours to achieve legitimate
regulatory objectives. While New Labour’s regulatory style is more
likely to prove effective than that of the Conservatives, it may be
criticized for a similar failure to implement fundamental values of
openness and participation in the determination of regulatory purposes.
INTRODUCTION
This paper applies theoretical perspectives on regulation and
governmentality to the analysis of central-local relations, focusing in
particular on the relationship between central and local government. The
general failure of these perspectives to engage with the values and
purposes informing the state’s regulatory endeavours is particularly
apparent in this context. While theorists of governmentality appear to be
uninterested in such evaluation, regulationists have tended to sidestep the
27
ßBlackwell Publishers Ltd 2002, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
*Lancashire Law School, University of Central Lancashire Preston PR1
2HE, England
This paper is part of a broader project for which the support of the ESRC is acknowledged
(award no. R000271186).
issue, as have advocates of the abandonment of substantive state direction
in favour of reflexive strategies
1
or proceduralization.
2
In contrast to these
positions, the present paper directly confronts the legitimacy of the state’s
regulatory objectives and the manner of their determination as part of a
broader evaluative task including, but not confined to, the technical
assessment of regulatory effectiveness. In so doing, it argues that insights
drawn from the literature on governmentality can be incorporated within,
and may indeed be regarded logically as part of, a redefined theoretical
perspective on responsive law and regulation drawing on the work of
Nonet and Selznick.
REGULATION, GOVERNANCE, GOVERNMENTALITY
In its most general sense, regulation may be said to include ‘all acts of
controlling, directing or governing according to a rule, principle or system’.
3
This broad notion of regulation as systematic control clearly embraces rules
restricting behaviour, together with targeted rules or specific sets of commands
accompanied by mechanisms for monitoring and promoting compliance.
4
It
also includes forms of state intervention such as subsidies and taxation, and
policy instruments entailing control by standards, licensing, and inspection.
Following Daintith, the state may be viewed as a purposeful actor pursuing
economic and social objectives through regulatory strategies involving the
linking of state law with power resources, or instruments, of force, wealth, and
information and persuasion.
5
As well as extending beyond economic to social
behaviour, this definition includes unconscious and non-deliberate processes
and mechanisms of social control beyond the formal boundaries of the state.
6
28
1 G. Teubner, ‘Substantive and Reflexive Elements in Modern Law’ (1983) 17 Law
and Society Rev. 239.
2 For a critique of proceduralization, see J. Black, ‘Proceduralizing Regulation: Part I’
(2000) 20 Ox. J. of Legal Studies 597, at 604–6 and fn. 32.
3 T. Daintith, ‘Regulation’ in International Encyclopedia of Comparative Law, vol.
XVII, ‘State and Economy’, eds. R. Buxbaum and F. Madl 3. See, also, the
discussion of definitions of regulation in T. Prosser, Law and the Regulators (1997).
4 R. Baldwin, C. Scott, and C. Hood, ‘Introduction’ in A Reader on Regulation, eds.
R. Baldwin, C. Scott, and C. Hood (1998) 3; R. Baldwin and M. Cave,
Understanding Regulation (1999).
5 Daintith, op. cit, n. 3, p. 24. This classification of regulatory resources is a
refinement of Daintith’s earlier analysis based on the distinction between imperium
(characterized by commands backed by force, and by duties or rules whose breach is
accompanied by negative sanctions) and dominium (referring to the employment of
wealth, usually in the form of government grants or contracts, as incentives to
comply with central policy). This analysis allows that compliance with rules may be
rewarded through their relaxation, and that withdrawal of wealth benefits may serve
a sanctioning purpose: T. Daintith, ‘The Techniques of Government’ in The
Changing Constitution, eds. J. Jowell and D. Oliver (1994) 212.
6 Baldwin and Cave, op. cit., n. 4, p. 2.
ßBlackwell Publishers Ltd 2002
To continue reading
Request your trial