How much politics goes into the development, implementation, evaluation, and reform of regulation? This question has been at the forefront of regulatory scholarship for over five decades [1-4].
Aim of this series
Over the next few weeks, I will write a short series of blog posts that map how scholars of public administration in general and regulatory scholars in particular have theorized the politics of regulation. I will first discuss the major theories about ‘the’ politics for regulation: public interest perspectives, public choice perspectives, private interest perspectives, and institutional perspectives.
After reflecting on these core perspectives, I will touch on some of the most politically contentious issues of regulation: the use of deterrence as a means to achieve compliance, the mixing of incentives (resulting in models such as Responsive Regulation), the use of insights from behavioural economics (resulting in models such as Nudging), the embracing of non-governmental individuals and organizations as essential parts of regulatory regimes (resulting in theorizing on co-regulation and regulatory intermediaries), and questions about the need for a (politics of) regulation of regulation (resulting in theorizing on agencification, meta-regulation, and regulatory stewardship).
By no means is this series of blog posts meant as an exhaustive overview of all the literature on the politics of regulation. That would ask for a book-length volume [and an excellent one is already available, see 5]. The series will, however, give you a robust understanding of the main debates and discussions about the politics of regulation (and sufficient references to the literature to explore these debates further yourself).
Here I should note, however, that I write this series as a “Western” scholar, and that it is highly biased towards describing the politics of regulation as experienced in the Anglosphere and North-Western Europe.
One step back: What is regulation again?
Before reflecting on theories of the politics of regulation, it makes sense to take a step back and ask the question: what do we mean with regulation? How can we define it?
It is not easy to define the concept ‘regulation’. Here are just a few conceptualisations:
Regulation is “the process of elaborating and correcting the policies required for the realization of a legal purpose” [6,108].
Regulation is “the conjunction of the mechanisms working together for social reproduction”, particularly those that reproduce economic structures and social forms [7, 20].
Regulation is a set of “public interventions which affect the operation of markets through command and control” [8, 4].
Regulation is “an intentional activity that seeks to alter the behaviour of another party” through a set of activities including standard setting, behaviour modification, and information gathering [9, 25].
Regulation is a “sustained and focused control exercised by a public agency over activities that are valued by a community” [10, 18].
Regulation “is a structured process undertaken by or under the auspices of government designed to modify the behaviour of persons or entities according to defined standards” [11, 8].
What binds such definitions together is that regulation is typically conceptualised as an intentional, and often structured and sustained, process implemented by an individual or collective (‘regulator’) to direct the behaviour of other individuals or collectives (‘targets’) to achieve a predefined aim through a variety of interventions (‘instruments’ and ‘strategies’) that typically include standard setting, monitoring, enforcement, and retributions or rewards. The regulator can be a public party (government), a private party (non-profits, firms, NGOs, etc.), or a combination of both, as can be the target or targets of regulation.
Often, as is the case with regulation in public policy, there is a third party involved as well: the beneficiaries of regulation (minority groups, society at large, more-than-human entities, etc.). The interventions used by regulators typically seek to achieve their goals by making the desirable behaviour attractive (positive incentives such as encouragement and benefits), unattractive (negative incentives such as dissuasion and punishments), or impossible (restrictions such as barriers and bans).
What is regulation in the 21st Century?
While the details of such definitions differ, scholars of public administration (and scholars of regulatory governance in particular) agree that over the last decades the conceptual understandings of what is considered regulation have expanded dramatically [12-14].
This changed understanding echoes the broader changes in our understanding of what government (or the state) is or ought to be doing. In other words, just like we have witnessed changes in the role of government from being a ‘nightwatchman’ to a provider of ‘welfare’ , we have witnessed changes in the role of (public) regulators from being reactive ‘enforcers of the law’ to being proactive ‘guardians’ of economic, social, and environmental interests .
Just like we have witnessed NPM -type shifts towards entrepreneurial, efficient, and lean governments , we have witnessed NMP-type shifts towards for evidence-based, performance-oriented, and light-touch regulators .
Just like we have witnessed increasing calls for and application of deliberative democracy, consensus based decision making, and increased public participation in general politics , we have witnessed increasing calls for and application of self-regulation by firms, co-regulation between public regulators and private parties, and citizens as surrogate regulators .
But more is at stake
Towards the end of the 20th century, regulation has stepped out of the shadow of public policy. No longer is regulation merely seen as merely one of the final phases of the policy process—particularly the delivery of policy goals through standard setting, monitoring, and enforcement. Regulation has become a dominant government function.
It is widely argued that the welfare state has morphed into a regulatory state, “a vast array of new independent institutions and new regulatory powers that seek to constrain and guide the behaviour of actors in the economy” [20, 267]. In this regulatory state, the delivery of public and welfare services is increasingly outsourced and contracted out to third-party providers that are controlled and influenced by government regulators through processes of monitoring and enforcement . These processes themselves call for regulation also—in other words, the emergence of the regulatory state increasingly calls for the regulation of regulation. Some scholars even go so far as to consider our age being characterized by regulatory capitalism . This idea acknowledges that over the last decades we have witnessed a growth in state regulation and non-state regulation that mutually reinforces each other, increasingly resulting in hybrid forms of regulation and evolving regulatory techniques and practices.
Looking forward to the other blogs in this series
So, how much politics goes into the development, implementation, evaluation, and reform of regulation? In the blogs that follow, we will find our that, s in many areas of public administration, the responses to that question can crudely be summarized by:
“traditional” Chicago-school economics type answers in the 1970s and 1980s: the politics of regulation characterised by an economic cost-benefit rationale and pursued by rational beneficiaries and opponents of regulation;
New Public Management (NPM) type answers in the 1990s and early 2000s: the politics of regulation characterised by a need to reduce the role government to ‘steering’ rather than ‘rowing’ and limit its (constraining) influence over the (free) market; and,
governance (or new public governance) type answers in the late 2000s and 2010s: the politics of regulation characterised by a renewed interest in (and appreciation of) the role of government in addressing complex societal problems (such as climate change, global inequality, the Fourth Industrial revolution) and a more realistic (i.e., less rational) model of human behaviour.
1. Wilson, J.Q., ed. The Politics of Regulation. 1980, Basic Books: New York.
2. Jordana, J. and D. Levi-Faur, The Politics of Regulation: Institutions and Regulatory Reforms for the Age of Governance. 2004, Cheltenham: Edward Elgar Publishing.
3. Stigler, G.J., The Theory of Economic Regulation. Bell Journal of Economics and Management Science, 1971. 2(Spring): p. 3-21.
4. Peltzman, S., Towards a More General Theory of Regulation. Journal of Law and Economics, 1976. 19(August): p. 211-240.
5. Levi-Faur, D., Handbook on the Politics of Regulation. 2011, Cheltenham: Edward Elgar.
6. Nonet, P. and P. Selznick, Law & Society in Transition: Toward Responsive Law. 2009 , Transaction Publishers: New Brunswick.
7. Boyer, R., The Regulation School: A Critical Introduction. 1990, New York: Columbia University Press.
8. Prosser, T., Law and the Regulators. 1997, Oxford: Clarendon Press.
9. Lodge, M. and K. Wegrich, Managing Regulation: Regulatory Analysis, Politics and Policy. 2012, New York: Palgrave Macmillan.
10. Scott, C., Regulatory governance and the challenge of constitutionalism, in The regulatory state: Constitutional implications, D. Oliver, T. Prosser, and R. Rawlings, Editors. 2012, Oxford University Press: Oxford. p. 15-33.
11. Windholz, E., Governing through regulation: Public policy, regulation and the law. 2018, Abingdon: Routledge.
12. Hutter, B. and S. Lloyd-Bostock, eds. Regulatory Crisis: Negotiating the Consequences of Risk, Disasters and Crises. 2017, Cambridge University Press: Cambridge.
13. Hodge, G.A., A. Maynard, and D. Bowman, Nanotechnology: Rhetoric, risk and regulation. Science and Public Policy, 2014. 41(1): p. 1-14.
14. Snyder, F., Risks and Risk Regulation: Personal Reflections. European Journal of Risk Regulation, 2017. 8(1): p. 18-23.
15. Torfing, J., Politics, Regulation and the Modern Welfare State. 1998, London: Macmillan Press.
16. Osborne, D. and T. Gaebler, Reinventing government: how the entrepreneurial spirit is transforming the public sector. 1992, Reading: Addison-Wesley Publishers.
17. Prosser, T., The regulatory enterprise: Government, regulation and legitimacy. 2010, Oxford: Oxford University Press.
18. Gutmann, A. and D.F. Thompson, Why deliberative democracy? 2004, Princeton: Princeton University Press.
19. Gunningham, N. and P. Grabosky, Smart Regulation. Designing Environmental Policy. Oxford socio-legal studies. 1998, Oxford: Oxford University Press.
20. Humperson, E., Auditing regulatory reform, in The regulatory state: Constitutional implications, D. Oliver, T. Prosser, and R. Rawlings, Editors. 2012, Oxford University Press: Oxford. p. 267-282.
21. Majone, G., The evolution of the regulatory state: From the law and politics of antitrust to the politics of precaution, in Routledge Handbook of Risk Studies, A. Burgess, A. Alemanno, and J.O. Zinn, Editors. 2016, Routledge: London. p. 2016-228.
22. Levi-Faur, D., The Global Diffusion of Regulatory Capitalism. The ANNALS of the American Academy of Political and Social Science, 2005. 598(12): p. 12-32.