Regulation in the Age of Governance: The Rise of the Post-Regulatory State

Abstract

Introduction : This chapter forms part of a larger project examining governance ‘beyond the regulatory state’. Governance has been defined in a variety of ways in both official and secondary literatures. In this chapter the ‘age of governance’ is conceived in terms of recognizing the dispersal of capacities and resources relevant to the exercise of power among a wide range of state, non-state and supranational actors. An analysis in which governance is no longer seen as the exclusive prerogative of the nation state presents a challenge to the literature which argues that the last years of the twentieth century witnessed ‘the rise of the regulatory state.’ (Majone 1994). In this chapter three core assumptions of the regulatory state movement are scrutinized using theoretical and empirical literatures which challenge one or more of these central ideas: regulation is instrumental in character; the state is necessarily central to regulatory governance; state law is a central instrument of regulatory governance. Each of these assumptions has a descriptive and a normative dimension, both of which are assessed in the critique. The objective of the analysis is not wholly to dispense with the assumptions but rather to act as a corrective to an influential literature which, because of its neglect of the non-instrumental dimension of regulation, non-state regulation and regulation which deploys non-state law, is, incomplete in its mapping of regulatory governance arrangements. This chapter focuses on one aspect of the critique concerning the centrality of state law to regulation. It argues for shifting the focus of analysis from state law to the wider range of norms and mechanisms through control is asserted or achieved, however indirectly. The exercise is complementary to policy moves towards ‘alternatives to state regulation’ (Better Regulation Task Force 2000). The approach constitutes something of a mirror image to those who are arguing that the centrality of the state is too little rather than too much assumed (Weiss 1998). The question at the heart of this paper is to what to extent can we or should we think of regulatory governance functioning in a manner not dependent on state law or which state law is not central (cf Black 2001a). The chapter maps current thinking on the nature of the ‘regulatory state’ and then sets out, in critical fashion, a range of theoretical approaches which challenge thinking about regulation which is oriented to the capacities of the state. Underlying this ‘postregulatory’thinking are concerns that the assertion of control by state regulatory bodies is, in many cases, implausible. Set against this many instances of well-ordered economic and social relations are observable in environments where there is little state activity. This chapter invites the reader not to wholly discard conventional conceptions of the state role in regulation. Indeed, other chapters in this volume deploy related arguments about variety in regulatory norms to enrich rather than challenge the idea of the regulatory state. The alternative offered here is to think about governance in a different way so as to admit a wider range of norms, institutions and processes as constituting a way of thinking labelled ‘the post-regulatory state’.