The regulatory state and beyond

Abstract

In John Braithwaite's remarkable set of contributions to ideas about and the practice of regulation over four decades, the state is one of the central organising concepts. This is true for much thinking about regulation more generally, but for a variety of reasons. In Braithwaite's case, the focus on the state may lie with his original interests as a criminologist, where there is a strong consensus that the responsibility for regulating criminal behaviour not only lies with the state, but also provides a core rationale for the existence of the state as monopolist over legitimate use of coercive power. Just as that consensus has broken down with the privatisation of some aspects of prisons and policing systems in various countries, so the agreement around the centrality of the state in regulation has been challenged. In this chapter, I argue that while some, including myself, have seen in Braithwaite's early and highly significant research on the role of the state in regulation a tendency to neglect the wider community and market context, in fact, the seeds of a more broadly based analysis of regulatory capitalism may be found throughout Braithwaite's oeuvre. Policy and scholarly communities were less receptive to understanding the key role of community and market actors set out from an early stage in Braithwaite's work and more fully developed in his later work. In this chapter, I attempt to locate Braithwaite's major contributions to the theory and practice of the regulatory state and the broader concept of regulatory capitalism within the wider context of contemporary thinking about regulatory governance.

Regulating white-collar crime in Ireland: an analysis using the lens of governmentality

“…Gray and Sibley [95], however, are critical of responsive regulation because it adopts a regulator focus which overlooks the perspectives of individual actors inside the company whose practices depend on whether they perceive the regulator as a threat, ally or an obstacle. The responsive regulatory enforcement model resonates to varying degrees with Bdecentred regulation [96][97][98][99] which emphasises the interactive nature of regulation between state and nonstate actors; Bnew governance^ [100], in which securing compliance is deliberative, participatory, and dynamic, where parties are empowered to experiment with how best to achieve compliance; and with Bmeta-regulation^in which the State requires and oversees that the regulated have internal checks and systems to ensure regulatory goals and objectives are met [101].…”

‘Walk softly and carry no stick’: Culture, opportunity and irresponsible risk-taking in the Irish banking sector

“…The relationship between regulator and regulated is less directive and more based on trust (Black, 2008). The principles-based approach to regulation, thus understood, resonates to varying degrees with ‘decentred regulation’ (Black, 2001, 2002; Scott, 2002, 2017), which emphasises the interactive nature of regulation between state and non-state actors; ‘new governance’ (Ford, 2008), in which securing compliance is deliberative, participatory and dynamic, where parties are empowered to experiment with how best to achieve compliance; and with ‘meta-regulation’ in which the state requires and oversees that the regulated have internal checks and systems to ensure regulatory goals and objectives are met (Grabosky, 2017).…”

Taking Metaregulation to the United Nations Human Rights Treaty Regime: The Case of the Convention on the Rights of Persons with Disabilities

“…Both approaches to metaregulation, and their diverse applications in business regulation both locally and globally, emphasize the general trend in regulation toward a “symbolic withdrawal” of state “control” over regulatory activities (Braithwaite and Drahos ; Scott , ; Black ; Drahos ; Grabosky ). At the core of the model lies the normative value of direct community participation of the actors actually affected by the regulatory process (Sunstein ; Ayres and Braithwaite ).…”