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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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Chapter 4: Commissioned self-regulation

Pauline Westerman

Extract

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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