Ayres and Braithwaite advocate a regulatory ideal where government seeks to balance interests, where non-organized interests are empowered, where competing ideas about regulation are reconciled, and where participation in public life is encouraged. Regulatees are to consider their obligations and accept their responsibility for regulating themselves in a way that conforms with broad legal principles Ayres and Braithwaite Similarly, Responsive Regulation could be seen as mostly about professional judgment and the inclusion of third parties the PIGs.
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A further contrasting view would see the key advantages in granting flexibility to business under p. In other words, Responsive Regulation is also a classic in that or exactly because it successfully manages to appeal to different audiences for different reasons. The ideas of Responsive Regulation have moved to further fields, such as tax administration and civil wars see Braithwaite Despite the popularity, a number of criticisms have emerged. As a result, one criticism has been that Responsive Regulation is too state-centric and therefore fails to acknowledge the importance of non-state actors, the dispersed nature of contemporary regulation and thus the difficulty of regulators to mobilize when regulatory authority is dispersed , and, especially, the transnational nature of contemporary regulation Baldwin and Black ; Bartley ; Abbott and Snidal In such a fragmented system, any notion of an enforcement pyramid is arguably unrealistic and therefore problematic.
At minimum, it requires a refocusing towards the idea of regulatory capacity being situated outside the state Abbott and Snidal A second criticism has been based on the inherently inconsistent approach across companies that Responsive Regulation advocates. After all, one implication of the enforcement pyramid is that the same infringement by different regulatees earns different types of sanctions, as these depend on the diagnosed degree of cooperation by the regulatee.
Further critical attention has been paid to the need for iterative interactions between regulators and regulated. Such iterative games are less likely to occur where regulators lack the resources to maintain an institutional memory and where the mobility of regulatees turns any enforcement action into a one-shot game Gunningham Furthermore, it is questionable whether all regulatory enforcement should always start at the bottom and then be gradually escalated or whether there are violations that require immediate escalated sanctioning.
A third criticism has focused on administrative prerequisites. First of all, the organizational constraints that are likely to inhibit moving up and down the pyramid are not explored. Little work has been done to connect these demands on regulators to organization-theoretical insights that would point to selective attention or internal resistance to escalation. Similarly, little attention has been paid to the detection or information-gathering side; after all, the conditions under which regulators operate are not just to identify wrongful conduct, but also to understand the underlying motivation and the capacity of regulatees to correct their conduct.
Moreover, the politics of escalation and de-escalation, the organizational processes that facilitate or not information-gathering and behavior-modifcation, as well as the political and moral context to operate the pyramid continue to be underspecified. In particular, responsive strategies require a sustained supportive environment, or otherwise decisions will remain contested and distrusted Parker One pressure potentially challenging the enforcement pyramid is that regulatees demand to be told what should be done. Another pressure encouraging prescriptive regulatory approaches comes from the side of inspectors.
For inspectors, discretion leads to more visibility and thus more scope for potential blame. This fear of blame leads to risk-averse demands for reduced discretionary judgment. Finally, Responsive Regulation cannot explain cross-sectoral or cross-national variation. Admittedly, the original purpose was not to explain such variation, but to develop potentially testable claims about the observable impact of responsive enforcement strategies in terms of enhancing cooperative attitudes, greater regulatee trust in regulators, and, above all, advanced compliance for such a test, see Nielsen and Parker These four criticisms and immediate responses have shaped later developments.
Responsive Regulation - Paperback - Ian Ayres; John Braithwaite - Oxford University Press
Among the various intellectual avenues that directly build on and respond to p. Building on Ayres and Braithwaite, this strain stresses the importance of dynamic and iterative enforcement relationships. Examples of such regimes include the Forest Stewardship Council as an example of a private certification regime , and the self-regulatory Institute of Nuclear Power Operators which hands over reluctant laggards to state regulators Gunningham It emphasizes the importance of decentralized decision-making within the context of broad principles that require consent and verification from state regulators Parker Meta-regulation is therefore not about the abandonment of state-based regulation, but rather about the reduced prescriptiveness of so-called command and control regulation and a reshaping of state power toward a more advisory and arguably strategic role.
At the same time, meta-regulation entrusts regulatees with being capable and motivated to develop credible self-regulatory systems and requires regulators to be able to detect the workings of such decentralized regimes. Both of these requirements arguably are highly demanding and, as yet, have received only limited empirical research Nielsen and Parker ; Gunningham et al. A third strain has explored the rise of risk-based enforcement techniques Black Arguably, this regulatory policy trend has mostly emerged in the world of practice.
Regulators are called upon to calculate the likelihood of a particular harm occurring and the severity of that harm. This approach is supposedly about allocating resources and signaling that not all risks can be followed up.
It admits that failure cannot be avoided. However, while it is fair to suggest that even under responsive regulation a risk-based approach would shape decisions in terms of allocation of resources, more generally, a risk-based approach offers a direct challenge: Furthermore, the financial meltdown of the late s that occurred on the watch of supposedly risk-based enforcement regimes offers little confidence that risk-based approaches offer advantages over responsive regulation-based ones. A fourth strain continues the interest in comparing and explaining enforcement styles Nielsen and Parker This work is partly influenced by implementation-based approaches, as noted Kagan ; Bardach and Kagan ; Gormley ; May and Burby ; May and Wood More recently, comparative studies have moved into industrializing economies, such as China and Brazil McAllister et al.
Elsewhere, ideas about the enforcement pyramid and enforced self-regulation shaped the work by Hood and colleagues on the cross-domain and cross-national analysis of regulation inside government Hood et al. In this work, the key theoretical mileage was derived from the application of cultural theory to the comparative study of regulatory regimes. In short, Responsive Regulation has received considerable critical attention that has triggered responses, extensions, and incorporations into other frameworks.
Some of the criticisms point to the limitations of a state-centric approach, others to the implications regarding prerequisites and outcomes, while others are interested in different research questions. None of these criticisms and responses have, on their own or together, amounted to a killer blow to the key ideas incorporated in Responsive Regulation ; in contrast, they largely constitute part of an ongoing conversation about key themes.
Apart from the ongoing work that responds directly to the agendas that emerged from Responsive Regulation , the literature on enforcement is evolving in a variety of ways see Mascini These lines of enquiry are following particular socio-legal inspired themes, whereas the law and economics inheritance of Responsive Regulation has arguably not been taken much further Ayres Three areas can be identified in particular. These themes relate to the role of the enforcement officer or inspector Pautz and Wamsley Across domains, this role has witnessed considerable change.
A number of causes for this change can be noted: A second, related, theme focuses more narrowly on how relational distance in enforcement has changed and what the effects of this potential change might be. As in many areas of social science, it is not surprising that many themes in the enforcement literature are forgotten and then rediscovered. One key rediscovery in the area of enforcement is the emphasis on reputation.
As noted, the early socio-legal literature highlighted how inspectors were shaped in their work by reputational considerations, and by concerns about their appearance. The concern with reputation has recently been taken up in work on licensing in pharmaceutical and in other areas where the behavior of agencies less of individuals is explored Carpenter ; Maor , ; Gilad A subsequent step considers how reputational concerns influence the co-working within dispersed systems of regulation rather than merely at the level of the individual enforcement officer or agency.
A second rediscovery has been the interest in creative compliance and other gaming activities. This work on the strategic responses to regulatory demands has put different motivations back on the agenda. It does not consider those populations whose behavior could be identified as principled objection or as opportunism. These questions are at the heart of the enforcement pyramid and of enforced self-regulation with its emphasis on ensuring cooperative attitudes and discouraging opportunism.
Finally, what about those areas in which there is a natural linkage between the themes represented in Responsive Regulation and other fields, but no direct interaction? This literature has been largely interested in the way in which p. Despite the considerable attention on third-party actors in private regulatory regimes at the domestic and the international level , questions as to how international regimes are being verified by NGOs and other third parties have not been fully explored. Debates about state compliance with international commitments are largely restricted to studying legal incorporation, transposition, and infringement actions.
Such an approach that uses formal law may, in part, be excused by reason of the complexity of studying compliance in a multi-state setting and by a reluctance to engage with street-level bureaucracies. As such, therefore, international relations and European Union oriented studies rely on formal policy change, institutional arrangements, and formal infringement proceedings rather than actual enforcement practices see Knill et al. Responsive Regulation , as noted, represents a classic whose innovation lay in the bringing together of two disciplines interested in the same phenomena and showed how these different disciplines converged on views about enforcement.
Instead, it developed a perspective that relied on enlightened self-interest of regulatees and smart, non-adversarial regulators who engaged in sophisticated and differentiated regulatory enforcement activities. Its ongoing relevance is evident in the type of questions that encourage research, despite the somewhat limited extent to which responsive regulation has been explored empirically for an exception, see Nielsen and Parker More broadly, the growing interest in different motivations and behaviors reflects core insights from the enforcement literature.
More broadly, Responsive p. The relevance of Responsive Regulation is further enhanced by contemporary discussions about regulatory change in the light of the financial crisis. As pyramid-selling schemes have collapsed, investment banks have bitten the dust, and retail banks have ended up in the rescuing arms of the state, calls for a deterrence-type approach toward enforcement have increased. Responsive Regulation offers a useful check on these calls for more deterrence. However, it questions the usefulness of a regulatory approach that encourages adversarial legalism and creative compliance.
Furthermore, the financial crisis, and the subsequent sovereign debt crisis, led to budget cutbacks and a reduction in the resources available to enforcement agencies. The enforcement pyramid offered a vision in which agencies were avoiding resource-intensive deterrence activities by relying on persuasion in the first instance.
In other words, Responsive Regulation is a classic of continued significance; it has shaped the research agenda in enforcement, and it offers scope for further probing into key aspects of enforcement regimes, namely administrative prerequisites and a greater insight into the way in which firms are capable and motivated to comply.
It also addresses bigger questions that shape the world of public policy more broadly, namely how discretionary state power can be constrained, how often vulnerable individuals can be protected from abusive treatment, and how corporate power can be best contained from posing a risk to the viability of political systems. Transcending the Deregulation Debate. The Evolution of Cooperation.
Understanding Regulation , 2nd edn. Going by the Book: The Problem of Regulatory Unreasonableness. The Behavior of Law. Pathology or Statistical Artefact. To Punish or Persuade: Enforcement of Coal Mine Safety. State University of New York Press. A Theory of Legal Certainty. Restorative Justice and Responsive Regulation. Opposition through the Backdoor. Meta-Regulation and its Siblings. Wegrich eds , Executive Politics in Times of Crisis.
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