Says there’s none

All RIGHT! Whoo! Are there any LEGAL THEORISTS in tonight???

OK then. (Hi Rob!)

Here are some thoughts on regulation and the law. This is a slightly abbreviated version of a paper I gave at a seminar earlier this year, which I’m planning to write up at greater length for publication.

I’d like to examine the conditions which make it possible for regulation to be both just and effective, and the conditions which make it problematic. For clarity, I am defining regulation here as the continued monitoring of an actor’s actions, by an agency authorised to do so, on the understanding that deviation from declared expectations will be met with some form of corrective response. Regulatory monitoring is not itself a punishment and does not require the prior establishment of guilt; it may be entirely prospective rather than retrospective, carrying with it no stigma for the actor whose activities are regulated.

Regulation can have very different associations, depending in part on who is being regulated and by whom. We can distinguish between professional regulation, in which organisations which wield power within society submit to regulation by specialist agencies; behavioural regulation, in which state authority is brought to bear on relatively powerless individuals; and regulation from below, in which pressure from individuals regulates the actions of powerful agencies.

Much comment on behavioural regulation, as exemplified by anti-social behaviour (ASB) legislation, has been highly critical – and critical in ways which calls into question whether this type of approach should be dignified with the name of regulation. It has been argued that behavioural regulation, rather than modifying behaviour without penal stigmatisation, does in practice stigmatise and punish – indeed, that it tends to undermine established principles of criminal justice, singling out undesirables for fast-tracked punishment. Anti-social behaviour legislation is not unique in this respect. Parallels have been drawn with control orders (Macdonald 2007); like ASBOs, these single out specified individuals for restrictive treatment. This raises the question of whether the defects of the ASBO system are parallelled in the control order regime – or even whether they are implicit in any attempt to apply the regulatory approach to individual behaviour.

I’ll address these questions by way of some comments on ‘technical regulation’ from the Russian legal theorist Evgeny Pashukanis.

A railroad schedule regulates the movement of trains in a very different sense than, say, the law on the liability of railroads regulates the relationship of the latter with freight shippers. Regulation of the first type is primarily technical; the second primarily legal.

The basic assumption of legal regulation is … the opposition of private interests. … The conduct of people may be regulated by the most complex rules but the legal element in this regulation begins where the individualization and opposition of interests begins. … Unity of purpose is, on the contrary, the premise of technical regulation. Therefore the legal norms concerning the liability of railroads presume private claims, private individualized interests; the technical norms of railroad movement suppose a single purpose, e.g. the achievement of maximum freight capacity.
(Pashukanis 2001 (1924))

For Pashukanis, the law concerns itself above all with conflicts between private interests. A railway timetable may impose obligations on many different people, failure to meet which may reasonably be penalised; Pashukanis cites other examples of ‘technical regulation’ such as a troop mobilisation plan or a course of medical treatment. However, what is at issue in such a case is an individual’s failure to contribute to the realisation of a common interest, as in the case of a train driver who turns up to work five minutes late, and consequently causes a scheduled connection to be missed. While the train driver has impeded the achievement of a common interest in punctuality, there is no conflict of interests here: the train driver is not pursuing a personal interest in disrupting the system. The disruption caused by the driver’s failure to meet an agreed obligation can be dealt with, in Pashukanis’s terms, through technical rather than legal regulation – or in our terms, through regulation rather than the law.

Pashukanis argues that the domain of regulation is defined by the unity of purpose conferred by a recognised common interest. This emphasis chimes with much contemporary comment on professional regulation, which stresses the need for the regulatory standards to be embedded in the culture of the organisation being regulated. However, Pashukanis’s insistence that regulation begins where the law ends is an unsatisfactory starting-point for us. This assumption would also suggests that regulation is unavailable in any case where all parties are not united by ‘technical norms’ which suppose a common interest; this would effectively rule out behavioural regulation and severely limit the scope of professional regulation.

A way out of this impasse is suggested by Braithwaite’s celebrated formulation of responsive regulation. Most regulatory interventions, Braithwaite argues, should assume a ‘virtuous actor’ open to persuasion. Only if this approach fails should the regulator resort to deterrence, implicitly addressed to a non-compliant but rational actor – and only if this fails should a punitive approach be adopted, implicitly addressing an incompetent or irrational actor. Crucially, compliance at the second or third level should prompt the regulator to de-escalate the next time intervention becomes necessary. The more confrontational the intervention, the less often it should be used; hence the image of a pyramid.

Persuasive regulation – the ground level of the pyramid – is an appeal to the subject of regulation to present him- or herself as a ‘virtuous actor’. The assumption is that the regulator and the subject of regulation have a shared interest in recognising each other – and being recognised – as socially responsible. This interest may not be uppermost in the mind of the subject of regulation – hence the possibility of escalating to deterrence – but it’s worth a try. “The most irresponsible of us has a socially responsible self. Responsive regulation is a strategy for persuading the worst of us to put our best self forward.” (Braithwaite 2002: 21).

If the scope of Pashukanis’s ‘unity of purpose’ is broadened in this way, we can see how the scope of professional regulation can be broadened in turn. Individuals do not need to be united by the mechanical interdependence of their working roles: they may be united by the culture of a particular profession or by more nebulous commitments such as the ‘public service’ ethos. The purpose which unites may even be supplied by statutory obligations (such as those imposed by the Crime and Disorder Act 1998 or the Race Relations Amendment Act 2000), at least once these have had time to become acculturated. All that is needed is a sense of what makes up the virtuous professional self: the list of things that people like us do and don’t do.

I seem to have proved that just and effective professional regulation is at least theoretically possible. Have I also rescued behavioural regulation? Not entirely. If a regulatory approach is genuine, I would argue – if it is more than an alternative label for administrative control – it must be founded on common interest; this in turn will mean that the ground level of Braithwaite’s pyramid is present. If the interest motivating compliance is truly shared, in other words, this can be demonstrated through the use of persuasion rather than deterrence – which will also be the most economical route to compliance. If the regulatory approach begins with deterrence and escalates from there, the suspicion must be that the interests of the subjects of regulation are simply being overridden: in other words, that regulation has illegitimately substituted for the legal processes which should adjudicate the conflict of interests – even between the state’s interests and those of an individual citizen. In the case of ASB legislation, there is some evidence of genuine attempts to appeal to ‘virtuous selves’, notably through the use of acceptable behaviour contracts (ABCs) as a precursor and alternative to ASBOs. However, there is plentiful evidence of a very different approach, deriving from the overtly divisive and exclusive ‘broken windows’ agenda. This approach tends to replace agreement between professionals and young people with agreement among professionals on how to deal with young people, who are seen as a problem rather than as individuals with interests of their own.

In the case of control orders, the situation is even worse. We are dealing here, after all, with people suspected of political offences – offences against the state. In the case of non-political offences, a habitual offender may have a socially responsible ‘best self’ to put forward, and may be motivated by gaining official recognition for this self-image: the literature on desistance tells us that this is a common profile among successful desisters in particular. By contrast, a suspected terrorist (assuming for the moment that he or she has been correctly identified) will be a committed opponent of the British state: someone who not only feels a deep-seated hostility to the state detaining him or her, but considers that hostility as virtuous rather than shameful. The possibility of mutual recognition between such a suspect and the authority regulating his or her behaviour is essentially non existent. This suggests that the regulatory approach in this case is illegitimate – or at least, that it is not regulation so much as the extra-legal use of state power.

In short, I follow Pashukanis in arguing that regulation tends to remove the matters regulated from the sphere of litigation and resolve them through administrative means. For this reason, regulation must be based on the recognition of a common interest, shared between the regulator and those regulated; this recognition can best be asserted and negotiated at the level of persuasive interaction, which is also the least costly and least coercive form of regulatory intervention. In the absence of such a common interest, regulation will be either ineffectual in its persuasion or unjust in its coercion. While these considerations apply to professional regulation, they apply with particular force to behavioural regulation. Although just and effective behavioural regulation is not impossible, the two most prominent current examples – the ASBO and the control order – are badly flawed, the control order in particular.

References

Braithwaite, J. (2002), “Rewards and regulation”, Journal of Law and Society 29: 1
Macdonald, S. (2007), “ASBOs and Control Orders: Two Recurring Themes, Two Apparent Contradictions”, Parliamentary Affairs Advance Access, published July 27
Pashukanis, E. (2001; originally published 1924), The general theory of law and Marxism, New Brunswick: Transaction

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3 Comments

  1. Posted 22 September 2008 at 14:00 | Permalink | Reply

    Was that me Rob? Unfortunately – well at least for the prospect of responses to this – I was on holiday.

    Now I am back though, prompted or unprompted… You seem to be saying that certain forms of regulation, because they are not premised on a shared set of interests, cannot be just. Now, one might query whether a shared set of interests is a necessary condition for justice: my attacker may not share an interest in me preventing them from harming me, but that doesn’t seem to make my resistance unjust. Equally, your evidence for the claim that the forms of regulation are not premised on a shared set of interests is that no attempt to persuade those regulated of the existence of those shared interests. But someone can have interests they are unaware of and cannot easily be made aware of, for all kinds of reasons, not all of which may be to do with the sorts of cognitive biases we might think offensive or otherwise unacceptable to attribute to people. But I’m not sure you need either of those strong claims anyway: it is a strike against a policy that it does not begin from the presumption of communicable shared interests, at least in a democracy, and that is demonstrable from what you say.

  2. Posted 23 September 2008 at 11:49 | Permalink | Reply

    Actually I was thinking of one of the other Robs who comments here – I’ll have to give you numbers (or placenames – Oxford Rob, Cambridge Rob and Edinburgh Rob). But that’s interesting.

    my attacker may not share an interest in me preventing them from harming me
    On the contrary, your attacker (if human) shares a fundamental interest in not being attacked. I don’t think this as trivial as it sounds.

    someone can have interests they are unaware of and cannot easily be made aware of, for all kinds of reasons
    Yes. I guess I’m arguing for a presumption that communication can (in principle, ultimately) be achieved & therefore should (in practice, at least briefly) be attempted. The starting-point of a lot of thinking about behavioural regulation seems to be that certain individuals have already put themselves beyond the reach of communication – and, indeed, that regulation needs to kick in at that point.

    it is a strike against a policy that it does not begin from the presumption of communicable shared interests, at least in a democracy
    Ta – nicely put. Apart from the last clause – I try to avoid invoking democracy. Probably my ignorance, but I’m just not sure if it’s a useful concept in the context of a discourse of legal rights, or quite what work it does. (Apart from anything else, democratic what? Head of state? Workplace? Police? Judiciary?) I guess Dworkin is the next stop…

  3. Posted 23 September 2008 at 15:10 | Permalink | Reply

    The attacker may share an interest in not being attacked, but it seems to be a shared interest in the same sense that two olympic finalists share an interest in winning; that is, when the interest is fully-cashed out, we can see it’s not shared, since for A the interest is in A (not) having X happen to them, and for B the interest is in B (not) having X happen to them; neither cares whether X happens to the other; in fact, they may want X (not) to happen to the other person.

    If you’re talking about communication being a presumption of interactions, you may want to read some Habermas. There’s a piece which I think is called ‘Towards a Universal Pragmatics’ from relatively early one which is almost really a piece of (analytical) philosophy, but maybe ‘Between Fact and Norm’ or whatever it’s called might be the place to start. You might also want to have a look at Bernard Williams’ work on the Basic Legitimation Demand. But that’s a philosopher speaking, and legal theorists probably have some quite different list.

    I think the democracy caveat does matter: part of the point of living in a democracy is that the will of the populace stands in some kind of relation to the laws they live under, and they can hardly do that if the law is a nakedly coercive. A nakedly coercive law prevents you from living out your will; it dominates you, and so the right kind of relation between the will and the law, between the people and the rules they are supposed to be endorsing, cannot exist. But I suppose that’s quite a thick conception of democracy by contemporary standards, so maybe you’d want to be careful about it.

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