Regulatory Spaces and Interactions: an Introduction

This special issue draws together four contributions to debates about legal regulation.1 They focus on space and interactions as key constituents of regulatory dynamics. The articles advance analysis of legal regulation also on the basis of new empirical data. Two contributions discuss novel forms of regulation, such as meta-regulation and the reform of health and safety regulation in Thailand. Two further articles examine the challenges faced by traditional state regulation through new tasks of systemic risk management, such as facilitating law and science interactions and ensuring animal disease control. The authors share a commitment to a range of fundamental values informing regulation, such as respect for animal welfare, the protection of the health and safety of workers, visions of justice which involve redistributive values and a concern with context-sensitive, proceduralized law which operates with a reflexive awareness of its own limitations. The first part of this introduction outlines space and interactions as key themes in the literature on legal regulation while the second part highlights the contribution of the articles in this area. WHAT IS LEGAL REGULATION? Defining legal regulation involves reference to images of space and interactions. What are the boundaries of regulating through law and what are its constituent interrelating elements? Academic research has constructed legal regulation broadly: [. . .] we can think of regulation as any process or set of processes by which norms are established, the behaviour of those subject to the norms monitored or fed back into the regime, and for which there are mechanisms for holding the behaviour of regulated actors within the acceptable limits of the regime (whether by enforcement action or by some other mechanism) (Scott, 2001: 331). SOCIAL & LEGAL STUDIES 0964 6639 (200312) 12:4 Copyright © 2003 SAGE Publications, London, Thousand Oaks, CA and New Delhi, www.sagepublications.com Vol. 12(4), 411–423; 038414 Legal regulation has been analysed from various theoretical perspectives, such as welfare economics (Ogus, 1994), Marxism (Jessop, 2001b: 83–92), Foucauldian ‘governmentality analysis’ (Burchell, Gordon and Miller, 1991; Dean, 1999), discourse analysis (Black, 2002b: 163–196) and systems theory (Lange, 1998: 449–471; Paterson, 2000: 7). It has been studied in many arenas, such as health and safety, environmental and consumer protection as well as the supply of utility and financial services, competition policy and taxation regimes. In addition, there are theoretical justifications for a broad conception of legal regulation. Regulation can be perceived as a response to risk and risk has been defined as a pervasive feature of reflexively modernized societies (Beck, 1986). Attempts to control and spread risk, also through legal regulation, produce new systemic risks which in turn call for more regulation (Lash and Wynne, 1986: 4; Braithwaite, 2000: 228). From this perspective regulation extends to a wide range of social, including private sphere, relationships such as families and employer and employee relationships. How the boundaries around legal regulation are drawn impinges on what are described as its constituent, interacting elements. From a postmodernist perspective, law is considered to operate increasingly through norms. It is no longer inevitably connected to the powers of a central sovereign state. Its location is shifting. Law is finding a new space in the decentred locations of detailed regulatory apparatuses, such as administrative and medical regimes (Rose and Valverde, 1998: 541, 546; Black, 2001). LEGAL REGULATION AS STATE-ECONOMY INTERACTIONS A significant segment of the literature, however, defines legal regulation as the regulation of economic activities and hence privileges state-economy interactions in its analysis (see for example Picciotto, 2002: 1; Kagan, 2002: 2). State intervention in the economy can be enabled through legal regulation. Focusing legal regulation on state-economy interactions provides the concept with a clear focus and hence may enhance its analytical force (Black, 2002a: 7). The term ‘state’ can be understood to refer to a sovereign body, endowed with territorial power and means of force. It operates through but is separate from the institutions of formal political authority (Dean, 1999: 9). In the literature on legal regulation economic activity is usually understood as the organized production, distribution, exchange and consumption of scarce goods and services, not including economic relationships in the private sphere, such as labour in the family home or barter exchanges in private markets.2 Excluded from this definition of economy are also the social relationships which underpin economic ones, such as the reproduction of labour. From a neo-classical economics perspective markets have been perceived as key to economic organization and hence alternative forms, such as kinship networks, hierarchical allocation and self-sufficiency have received less attention in the literature on legal regulation (Thompson et al., 1991; Carruthers and Babb, 2000: 2–4; Jessop, 2001a: 214). 412 SOCIAL & LEGAL STUDIES 12(4)