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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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Index

Pauline Westerman

abstract duties of care 23, 107
concretisation of 356
principles-based regulation, as 3
Acts
see also the Netherlands
accountability norm in 29
reproducing EU framework directives 2425
Social Services Act (2001) (Sweden) 2
Wildlife and Natural Environment Act (2011) (N Ireland) 2
antecedents
causes, as 132
conditions, as 132, 134
authority
exchange theory, in 84, 867, 8991
indispensable item, as 100
outsourced law, in 7980, 100
power distinction 82
principal/agent relationship, in 7980
proliferation of 101
representative democracy, in 79, 823
transfer of 100
Bentham Panopticon 17980
Braithwaite’s pyramids 149, 150, 155
case law
De Nederlandsche Bank NV v. Stichting Vie D’Or 11213
Elisabeth Schmitt v. TÜV Rheinland 11112
‘Kelderluik’ case 109
Urgenda Foundation v. The State of the Netherlands 108, 109, 114
circles of interaction 14, 48
citizenship 79
Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism 61
compliance 3940
comply or explain 40
norm- 1789
prioritising performance over 40, 41
concretisation 268, 30, 35, 41, 48, 103
see also norms; specification
accountability norm, of 312
aspirational norm, of 31
implementation norm, of 312
never-ending quest for 49
themes 278, 31, 66, 119
conditional programmes 1279, 1812
see also purposive programmes
aspirational norms in 12930
conditions in 13031
conditions/causes relation 1314
intermediate terms in 127, 128, 129, 130
democracy
counter- 75
debate in see democratic debate
deliberative 75
democratic control 100101
indirect 55
participatory 74, 75
representative see representative democracy
democratic debate 945, 99100
disciplinary matrix 16
discipline 174, 181
aiming at normalisation 177
counter/infra law, as 180
outsourced law comparison 1778, 181
radicalised 17680
double norm addressee problem 18
equality 1578
effectuated 159
gender 160
non-discrimination principle 1589
indirect discrimination in 159
paradox of 16061
presumption of 159
state of affairs, as 160
substantive 15960
EU
democratic deficit 94
directives 12
93/42 111
Council Directive on Health and Safety at Work (2007/30/EC) 24
framework see framework directives
harmonisation 7
independent agencies, and 87
Report of the European Economic and Social Committee (2011) 38, 59
Treaty on the Functioning of the European Union (2007), Art. 191.2 108
exchange theory 824
see also principal/agent relationship
asymmetrical relationships
alternative sources of benefits 869
coercion 8990
necessity 9092
unreciprocated benefits 856
vulnerability 924
authority 84, 867, 8991
power 84
rival principals 87, 889
externalisation 99, 17071
framework directives
see also Acts; EU; norms
accountability norm 234, 30
aspirational norm 223, 28, 30
concretisation see concretisation
emphasising positive outcomes 34
implementation norm 23, 30
lifetime of 31
Marine Strategy 21, 23
outsourcing law-making 22
reproduction by member states 246
specification see specification
Water (2000/60/EC) 21
WEEE (2012/19/EU) 34, 21, 23
generality 1426
see also legal theory; rule of outsourced law
categories in 143
classes of actions 143
essential characteristic, as 1423
methodological requirement to generalise, as 1446
norm-addressees 143
goal steering 34
goal thinking 99
governance 6
see also regulation
alternative modes of 13, 20
independent institutions 95
EU and 87
legitimacy of 956
value-creation 96, 98
value-claiming distinction 96
insider
outsider distinction 979
outsiders becoming 98
integral management 49
Interinstitutional Agreement on Better
Law-making (2003) 38
intermediate institutions/agencies 93
beyond scope of judiciary 114
diluting democratic control 100, 119
discretionary powers 110, 115, 119
expert knowledge 11011, 115
makers of norms, as 110
judiciary 102
European Networks of Councils for the Judiciary 117
judicial codes 11618
discretionary space, giving 117
judicial independence 11718
judicial ethics 117
self-regulation 118
judicial decision-making
hybrid 102
intermediate institutions, and 114, 11516
justificatory aims 11415, 119
multi-level 102
substitution of legal for scientific rules in 114
traditional legal doctrines, using 115
judicial interpretation 1037, 11316, 119, 123, 129
see also case law
abstract aspirational norms, of 10710
duty of care in 107
civil law, in 103
general rules 103, 104
common law, in 103
precedents 1034
concrete aspirational norms, of 11013, 114
intermediate institutions, and
discretionary powers 110, 114
expert knowledge 11011, 114
justificatory aims 1057
exclusionary 105
inclusionary 105, 106
reflective equilibrium in 105
third parties 111
juridification 1823
de- 183
law
see also outsourced law; outsourcing; traditional law
activity, as 14
civil/common comparison 103, 104, 145
disciplinary mechanisms colonising 181
outsourcing 1415, 17
regulation distinction 18081
regulation divide 811
soft 10
special technique, as 14
traditional 17, 103
legal research 12022, 13940
autonomy in 1245
comparative 124
creation and maintenance of order in 1224
criticism of 12021, 122, 1367
empirical 1348
identity of object and theoretical framework 123
future of 1379
judicial interpretation similarity 123
ordering/understanding distinction 1234
practice-oriented 123
legal order 14
legal philosophy 9
legal systems
see also conditional programmes
autopoietic, as 1256
conditional programmes, as 1279
input-output systems, as 126
Rule of Law 156, 1645, 167
export-product, as 162
policy aim, as 161
nested concepts of 1634
not an end-state 162
securitisation of 1623, 165, 166
legislation
traditional/alternative structural differences 1314
the Netherlands
Care Institutions Quality Act (1996) 256, 44
accountability norm 256
aspirational norm 25
deregulation, as 26
framework directive differences 26
inspirational norm 25
steering group 267
Constitution, Art. 21 108
Flora and Fauna Act (1998) 2
Good Education Good Governance Act (2011) 1845
Conditions Act (1988) 2
New Public Management movement 6, 30, 37
non-majoritarian institutions see independent institutions
norms
see also framework directives; outsourced law
accountability 234, 30, 41, 146
aspirational norm dependence 44
aspirational 223, 28, 30, 31, 146
performance indicators, and 3940
implementation 23, 30, 41, 146
aspirational norm dependence 44
open 3
ought-to-be 324
concrete 323
inviting further outsourcing 33
not indicating means 4950
performance indicators as 39
positive obligation in 33, 49
relation to norm-addressee 33
traditional 39
ought-to-do 324, 39, 49
reformulation of 34
organisational differentiation 48
outsourced law 1819, 356, 523, 724, 1867
see also framework directives; norms; traditional law
accountability norm 234, 30, 812
specifications of 42
actors in 54
instrumentalisation 170
multiple levels of 545
aiming at optimisation 178
aspirational norm 223, 28, 30, 6970
authorisation in 7980, 100
between conditional and purposive programmes, as 1334
concretisation see concretisation
decentring effects of 1835
countering 1856
discipline differentiation 1778
discretion in 8081
dynamic of 49
European framework directives, and 21, 30
goals in 2021
monitoring realisation of 21, 17980
implementation norm 23, 30
multi-level governance, as 54, 55, 75, 137
negative sanctions in 178
nested concepts in 164
norm-addressee, choice of 22
one-dimensionality of 434
perception of as democratic 55, 74
positive sanctions in 1789
proportionality 18
public interest in 10910
rules differentiation 48
self-replicating, as 31, 53, 70, 101
specification see specification
stylistic characteristics of 1689
differentiation 1723
externalisation 17071
instrumentalisation 16970, 183
subsidiarity 18, 723
traditional law entanglement 18083
outsourcing 58, 48
see also principal/agent relationship; self-regulation
co-regulation 6, 56, 589
self-regulation as 60
decentring, as 54
dispute resolution 116
dynamic 100
enforcement 116
leading to one-dimensional rules 48
principal/agent relationship in 568, 734
proximity in 55, 72
risk minimisation, as 4952
rule-making 116
self-regulation 6, 56
paradigmatic rules 1, 19, 37
performance
prioritising over compliance 40, 41
supervising 40, 11415
performance indicators 2830, 412, 48, 51, 66, 119
benchmarking 29, 51
best practices 29
interpreting 41
not indicating means 5051
ought-to-be norms, as 39
sole function of 170
Standard Evaluation Protocol 42
suggestions, as 40
system-based 30
types of 29
performing state 78
policy-making
goals as starting point for 2021
positive sum game 989
externalising problems 99
redistribution distinction 96
challenging 967
insider/outsider differentiation 979
power
authority differentiation 82
imbalances 82
principal/agent relationship 568, 734, 93
see also exchange theory
accountability relations 77
donors, with 1657
dependencies in 83, 84
exchange of benefits 824, 90
normative realities in 7072
representative/outsourcing differentiation 778, 923
accountability 812
authorisation 7980
discretion 8081
voters as principals 768
vulnerability in 924
principles
providing possibilities for action 14
principles-based regulation 23
European directives see EU, directives
proportionality 18, 38, 16970
public interest
debate 109
outsourced law, in 10910
purposive programmes 132, 1823
reasons
exclusionary, rules as 459, 170
decline of 160
first-order 45, 46, 47
second-order 45, 46, 47
functions of coordinating actions 1534
criticism 152
justification for decisions 1512
limiting discretionary powers 1523
redistribution
positive sum game distinction 96
challenging 967
insider/outsider differentiation in 978
regulation
see also governance
law distinction 18081
law divide 811
normative order, as 11
outcome-based 4, 1734
techniques of 1746
principles-based see principles-based regulation
results-driven 4
self- see self-regulation
smart 135, 151
system-based/performance-based distinction 29
toolkit approach 1112
regulators 934
regulatory capture 94
regulatory impact assessments 135
representative democracy 55, 58, 93
accountability in 81
authorisation in 79, 823
discretion in 80
outsourced law as parasitic on 100
principal/agent relationship, and see principal/agent relationship
rule of outsourced law 141, 1567, 167
see also legal theory, Rule of Law
accounting to donors, and 1657
constancy 1556
differentiation 1469
flexibility 14950
generality 1426
thick/thin metaphor 1412, 151, 16061
rules
see also reasons
changing conception of 160
compromises, as 435 46, 1547
content-independence of 43, 45, 467
intrinsic value of 43
exclusionary reasons, as 459, 170
first-order 45, 46, 47
second-order 45, 46, 47
instrumentalisation of 170
light/heavy perception 423
meta- 456
multiple functions of 67
negative 334
normative force of 47, 155, 170
paradigmatic 1, 4
positive 33
reversal of burden of proof in 34
proliferation of 42
providing possibilities for action 14
rules as distance meters 52, 151
substitution of legal for scientific 114
vehicles, as 378
security 99, 1623
law relationship 164
securitisation of Rule of Law 1623, 165
wider rule of Law, as 163, 166
self-regulation 6, 589, 6870
see also principal/agent relationship
codes of conduct 61
commissioned 546
justificatory function of 667, 689
normative realities in 7072
principal/agent relationship in 568
quality management systems 656, 69
continuum of 59
co-regulation as 60
internal 62
allocative rules 63, 678
behavioural standards 63, 67
meta-rules 645, 678
rules of the craft 63, 67
SMART objectives 69, 175
stage-setting 64
traffic rules 623, 67
substitutive/coercive 59
voluntary 60
specification 2831, 35, 41, 103
see also concretisation; performance
accountability norm, of 312
aspirational norm, of 31
implementation norm, of 312
never-ending quest for 49
performance indicators see performance indicators
stakeholders 102
style 1517
attitude, as 15
disciplinary matrix, as 16
exemplars 18
surveillance 112, 17980
traditional law 1389
see also norms; outsourced law
compliance 445
compromises between justificatory aims 103
concreteness of 44
ought-to-be norms 44
outsourced law entanglement 18083
providing best individual protection 115
UN Climate Change Convention 108