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Pauline Westerman

Chapter 2 analyses the threefold structure of the norms that are developed if regulation is outsourced. The characteristic format is discernible in the framework directive: it consists of an aspirational norm, indicating the goal that should be achieved, an implementation norm requiring the norm-addressee to take measures or to draft rules in order to achieve that goal and an accountability norm, demanding regular reports on the progress made. For a large part this threefold structure is reproduced at each level of the outsourcing chain. At each (lower) level of norm-addressees, goals are formulated, albeit in a more concrete form, accompanied by performance indicators which specify the targets to be reached. At each level, implementation and accountability are also concretised and specified. The result is a great number of rules which mainly prescribe the state of affairs that should be reached, and which leave underdetermined how and by whom this result should be obtained. Furthermore, the typical structure of norms invites to a regime of risk liability and effectively reverses the burden of proof.

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Pauline Westerman

Chapter 8 examines the relation between outsourced law and the Rule of Law. The latter is taken in the most minimal sense of the word, as being guided by rules. It is argued that the idea of a rule as both general in scope and constant in time is no longer cherished as an ideal. Instead, differentiated and flexible forms of regulation are called for which more adequately respond to specific needs and circumstances. However, this does not imply that the ideal of the Rule of Law in the broad sense of the word, as encompassing human rights, is abandoned. Instead we see that such rights are often reformulated as ends to be pursued which then form the starting-point – as aspirational norms – for outsourced legislation and regulation. Finally, attention is paid to the particular way in which the Rule of Law has turned into an export-product, a goal in itself the realisation of which is outsourced to the governments of other – fragile – countries.

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Outsourcing the Law

A Philosophical Perspective on Regulation

Pauline Westerman

Not only can services such as cleaning and catering be outsourced, but also governmental tasks such as making, applying and enforcing the law. Outsourcing the law is usually recommended for its cost-efficiency, flexibility, higher rates of compliance and its promise of deregulation. However, lawmaking is not the same as cleaning and rules are more than just tools to achieve aims. In this timely book, Pauline Westerman analyses this outsourcing from a philosophical perspective.
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Pauline Westerman

Chapter 5 examines the claim that outsourcing legislation would contribute to enhanced democratic control. Two types of Principal-Agent relationships are contrasted: the relation between outsourcer and outsourcee and the relation between electorate and representative. On the basis of criteria borrowed from exchange-theory, it is argued that the distribution of power tends to be more advantageous for the outsourcer than for the electorate. Since in an outsourcing regime Agents tend to take the role of Principal, thus creating an additional intermediate layer, the possibilities for democratic control are further reduced. Furthermore, those who are vulnerable to malperformance by the Agent may not be (fully) represented by the Principal, who does not directly suffer the consequences of such malperformance itself.

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Pauline Westerman

Chapter 6 focuses on the effects of outsourced law on judicial interpretation and decision-making. It is argued that since the rules directly prescribe (abstract or concrete) aims, there is little room for judicial construction of underlying justificatory aims. Moreover, as is illustrated by a couple of cases, the room for manoeuvre for the judiciary tends to be reduced in the face of the many new rule-making bodies that are given discretionary powers on the basis of their specific expertise. Parties who are directly affected by malperformance of Principals or Agents are only involved as ‘third parties’. The chapter concludes with some remarks on the precarious position of the judiciary in relation to the many competing law-making and law-applying bodies that are created.

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Pauline Westerman

Chapter 7 revolves around the implications of outsourced law for legal scholarship. The idea of legal doctrine as a search for coherence in a more or less autonomous and self-replicating legal system is under attack. The many (often non-legal) actors involved in rule-making affect the self-referentiality of law in two ways: by introducing non-legal meanings to the concepts and by adopting a form of purposive meaning that is different from conditional reasoning which is characteristic of legal argumentation. Norms are thus converted into guidelines and advice, the merits of which are dependent on empirical generalisation. The pleas for empirical methodology are, therefore, understandable and recommendable, as long as there remains room for traditional legal scholarship with its focus on the (re)construction of legal material and clear (re)definition of terms.

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Pauline Westerman

Chapter 1 introduces the phenomenon of outsourced law, which is characterised by the imposition of goals, while leaving it to the addressees to devise the means by which these goals can be achieved. It is argued that the kind of regulation that is developed in this way should not be regarded as separate from formal law. Law and regulation are different and interconnected styles of guiding human behaviour. In order to analyse and contrast these styles a philosophical perspective is called for. Law and regulation should be studied as normative orders with a dynamic of their own; they are not just steering instruments. Outsourced law will be studied by analysing the types of rules that are produced as well as the way people actually use these products, by analysing underlying aspirations and by examining the many intended or unintended changes that are brought about by the adoption of that style.

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Pauline Westerman

Chapter 9 concludes with a description of outsourced law as a particular style of regulation which is captured under the headings of instrumentalisation, externalisation, and differentiation, tendencies that are discernible not only in the kinds of rules which are made, but also in the ways actors regard each other as well as their own activities. Special attention is given here to the techniques and routines (audits, protocols, benchmarks) as bearers and transmitters of this style of regulation. Finally, outsourced legislation is compared and contrasted with Foucault’s ‘discipline’.

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Pauline Westerman

Whereas the preceding chapters focused on the structure of the rules, Chapter 4 analyses how they shape the relations between the actors who outsource (the Principal P) and the actors who are commissioned to make rules (the Agent A). In order to sketch the various functions of the rules, a thought-experiment is carried out in which a regime of spontaneous self-regulation is contrasted with the type of commissioned regulation that is prevalent in outsourced law. In spontaneous self-regulation, rules are developed to coordinate actions, to make social life more agreeable, and to solve conflicts over resources. In commissioned self-regulation, rules are mainly drafted in anticipation of the Principal’s future assessment of the Agent’s efforts and serve to justify what has been achieved. It is argued that in order to assess the merits of rules, attention should be paid to the different functions of rules for the different actors. Outsourcing rule-making does not necessarily lead to more active democratic participation of citizens.

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Pauline Westerman

Chapter 3 analyses the implications of the differences between traditional (act-prescribing) rules and the kind of norms that emerge in an outsourcing context. Rules that prescribe actions and means may serve as compromises between different goals. In outsourced law, such compromises are more difficult to reach since every rule only prescribes (an element of) the goal to be achieved. Whereas traditional rules have an integrating effect, outsourced law leads to a proliferation of rules. The latter, since they are mainly seen and valued as instrumental to a given end, cannot serve as (exclusionary) reasons for action. Compliance with the rules is only valued to the extent that it serves to further or realise a particular aim.