Handbook on the Politics of Regulation
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Handbook on the Politics of Regulation

Edited by David Levi-Faur

This unique Handbook offers the most up-to-date and comprehensive, state-of-the-art reviews of the politics of regulation. It presents and discusses the core theories and concepts of regulation in response to the rise of the regulatory state and regulatory capitalism, and in the context of the ‘golden age of regulation’. Its eleven sections include forty-eight chapters covering issues as diverse and varied as: theories of regulation; historical perspectives on regulation; regulation of old and new media; risk regulation, enforcement and compliance; better regulation; civil regulation; European regulatory governance; and global regulation. As a whole, it provides an essential point of reference for all those working on the political, social, and economic aspects of regulation.
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Chapter 13: Law and Regulation: The Role, Form and Choice of Legal Rules

Margit Cohn


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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