Reframing Democratic Governance
Chapter 8: Inferiority: the status of the regulatory space
The view of regulation as being in some way 'inferior' to other forms of social coordination has a long pedigree and dates back at least as far as to the thinkers of the eighteenth-century enlightenment. As has been mentioned, Montesquieu saw habit and tradition as superior to social regulation because in his view tradition linked standards of behaviour to people's feelings and emotions in ways that laws did not. Adam Smith similarly saw regulation as inferior to the law since the law involved, in his view, basic questions about concepts of justice and about how societies treat 'injury', while regulation belonged simply to the 'police' functions of the state. If the charge of 'inferiority' can be upheld, it would say something important about the status of the regulatory space itself. It would also enormously simplify the inquiry about how to maintain the integrity of systems of authority. The answer would be to reduce the role of the regulatory space to the minimum - to deregulate markets, to minimize exclusions from politics, to mobilize the law wherever possible in preference to mobilizing regulatory agencies and to rely on people behaving in socially responsible ways because that is their inherent preference rather than because they are told to do so by regulators. This chapter looks at the charge that the regulatory space is generally inferior to other systems of social coordination from three different perspectives.
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