The ( Post - ) Regulatory State

This paper forms part of a larger project examining governance 'beyond the regulatory state'. Three core assumptions of the regulatory state movement are scrutinized using theoretical and empirical literatures which challenge one or more of these central ideas: regulation is instrumental in character; the state is necessarily central to regulatory governance; state law is a central instrument of regulatory governance. Each of these assumptions has a descriptive and a normative dimension, both of which are assessed in the critique. The objective of the analysis is not wholly to dispense with the assumptions but rather to act as a corrective to an influential literature which, because of its neglect of the non-instrumental dimension of regulation, non-state regulation and regulation which deploys non-state law, is, incomplete in its mapping of regulatory governance arrangements. This paper focuses on one aspect of the critique concerning the centrality of state law to regulation. It argues for shifting the focus of analysis from state law to the wider range of norms and mechanisms through control is asserted or achieved, however indirectly. The exercise is complementary to policy moves towards 'alternatives to state regulation' (Better Regulation Task Force 2000). The approach constitutes something of a mirror-image to those who are arguing that the centrality of the state is too little rather than too much assumed (Weiss 1998). The question at the heart of this paper is to what to extent can we or should we think of regulatory governance functioning in a manner not dependent on state law or which state law is not central (cf Black 2001a) 2. Regulation and Control Regulation scholars have not, generally, been agreed on what the target of their research should be. Economic theories of regulation have tended to follow economic thinking generally in positing a sharp distinction between markets and regulation (Daintith 1997: 8-9). On this analysis the state provides basic rules of contract and property rights which are essential to the transactional basis of a capitalist economy and regulation is deployed where the market is judged to fail, for example because of natural monopoly, information problems or externalities (Baldwin and Cave 1999: chapter 2). Hayek (1982: vol 1: 51) 3 characterised markets as a form of 'spontaneous order', amenable to improvement through fine tuning of the general rules of law, but in which specific interventions or commands would destroy the balance of the market ordering. Regulators could never know …