Chapter 13: Law and Regulation: The Role, Form and Choice of Legal Rules
Margit Cohn The centrality of law to the field of regulation has never been challenged, but the debate over its proper role remains open. This debate comprises two types of questions. The first concerns law’s content: should law command (authorize and enforce), steer (subtly direct) or facilitate (create mechanisms for the settlement of arrangements through private ordering and other modes of interaction between parties)? The second type of questions is concerned with the role and form of law itself. In which forms do legal rules appear? Does law function as a symbol or threat, while ensuring the legality of regulatory behavior? And how and why do regulators choose one form of law over another? This chapter is concerned with the latter type of questions. I begin with an overview of the trends in the study of this issue, which is followed by two taxonomies. The first presents the formal variants of law and their binding force; in the second I move beyond the formal concepts of legality and illegality, and consider the role of law-in-action. Moving away from the simplistic distinction between legality and illegality, this taxonomy surveys different ways in which regulators and regulatees may operate within the confines of legality, albeit in the absence of law’s central attributes: the provision of clear, detailed frameworks that both empower and limit all participants in the regulatory space. Using the term “fuzzy law,” I consider ways in which law may operate as a symbolic threat (as in the developed literature on...
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