Roles of Law in the Regulatory States of the South

Roles of Law in the Regulatory States of the South

Description

The rise of the ‘regulatory state’ in the North Atlantic world is often associated with ‘a process by which economic management becomes “proceduralised” . . . characterised by an increasingly rule-based, technocratic and juridical approach to economic governance’. Legalization overlaps with proceduralization, but legalization can have significant substantive and systemic as well as process dimensions (and conversely, much proceduralization takes place outside law). International bodies, such as the World Bank, which promote the creation of independent regulatory agencies (IRAs) and other elements of a regulatory state model in developing countries associate regulatory state reforms with the rule of law, purvey them through a language of governance (transparency, accountability, even participation) that derives force from its association with public law, and deploy ‘good governance’ indicators to measure the quality of national legal institutions. The chapters in this book invite consideration of the questions of how far legalization has in fact been a concomitant of the rise of regulatory states in distinct forms in developing countries, and what exactly such legalization has consisted of. Law has long figured in some way in the arrangements for provision of utilities services in most countries. Even state-owned utilities with service provision managed by departments of government (often, in the cases of electricity or piped water, based on decades-old arrangements with colonial-era governance models) were frequently subject to laws and administrative regulations defining entitlements of households or businesses to access services, or at least specifying lawful means of enforcing payment or compliance with conditions of access. Privatization or corporatization of state providers, the entry of private operators to compete with former monopolies, and regulatory cultures associated with newer technologies such as mobile telephones and internet services, have typically been accompanied by legal innovation and greater roles for law (at least formally). Law is integral to the construction of much of the apparatus of the regulatory state (establishing contractual arrangements, constituting regulatory authorities, and prescribing their modes of functioning); to defining and adjusting the relations between corporations, consumers, and regulatory authorities, and between regulatory authorities and the executive; and to courts or other legal institutions resolving disputes arising out of the regulatory process. Although legalization is often seen as a unitary phenomenon in relation to regulation, and associated with a certain set of ideals (including ‘rule of law’ and property rights), the case studies complicate this picture by illuminating several diverging ways in which the shift to a regulatory state may interact with particular aspects of law or legal institutions. Our reading of the case studies suggests it may be helpful to distinguish between at least four different phenomena involved in ‘legalization’: I. The use of structures or vocabularies of law (as opposed to, say, economics, morality, tradition) as a technique of governance. II. The practice, role and relations of ‘legal’ institutions such as courts, arbitral tribunals, and administrative agencies, together with the private bar, government counsel, and attorneys-general. III. The use of particular forms of law (whether norms are contained in treaties or contracts, executive decrees or statutes; whether they take the form of detailed prescription or general principle and so forth). IV. Implications for the content of law at various different levels of abstraction (such as shifts in the importance of certain bodies of law vis-à-vis others, and the development of new norms within particular bodies of law). This commentary elaborates briefly on each of these four phenomena, drawing out some examples from the case studies, and identifying questions for further research. We suggest that it will be useful in future research not only to assess the significance (vel non) of legalization as an overall phenomenon in regulatory states in the South, but to ask more focused questions about what legal vocabularies are in play, how they relate to alternative vocabularies (such as economics, and econo-legal hybrids), what kinds of legal institutions and instruments are most central to particular regulatory systems, and what changes are observed to the substantive content of law. Breaking ‘legalization’ into a cluster of distinct phenomena, and trying to assess the range of changes within each that may be associated with the shift to the regulatory state, is likely in turn to help address whether, or how, law is distinctive among the panoply of available vocabularies, institutions, and governance techniques, and to give more critical purchase on notions such as ‘legalization’ and the ‘rule of law’ in regulatory systems.

Source Publication

The Rise of the Regulatory State of the South: Infrastructure and Development in Emerging Economies

Source Editors/Authors

Navroz K. Dubash, Bronwen Morgan

Publication Date

2013

Roles of Law in the Regulatory States of the South

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