Limits on Violence; Limits on Responsive Regulatory Theory

• DOI: http://doi.org/10.1111/lapo.12026
• Date: 01 October 2014
• Published date: 01 October 2014
• Author: John Braithwaite

Limits on Violence; Limits on Responsive

Regulatory Theory

JOHN BRAITHWAITE

Responsive regulation is a general theory of how to steer the flow of events. This

article seeks to understand when violence is and is not defensible as an enforce-

ment escalation. It specifies limits on the claim of responsive regulatory theory

that a tough enforcement peak to a regulatory pyramid helps drive regulation

down to persuasion at the base of the pyramid. Those limits are about the coun-

terproductive effects of violence at the peak of an enforcement pyramid. Erica

Chenoweth and her colleagues show that nonviolent civilian resistance to regimes

is twice as likely as armed struggle to succeed. Nonviolence complemented by a

violent radical flank is less effective than disciplined nonviolence. This refutes the

“benign big gun” aspect of responsive regulatory theory as a general theory of the

regulation of social action. The theory implies that capacity to escalate to armed

struggle at the peak of a regulatory pyramid should empower resistance. Can

responsive theory be adapted to this empirical challenge? Can that adaptation

show a productive path to an ethics of when to constrain escalation to violence as

an option at the peak of all kinds of regulatory pyramids? Lessons are drawn from

how Nelson Mandela’s struggle against apartheid opened nonviolent paths to

transformation without total renunciation of violence.

Responsive regulation is about the idea that regulation is more likely to be

just and effective when it is contextually responsive to environments, social

and physical, particularly to how regulated actors are responding to attempts

to regulate them. The regulatory pyramid is an aspect of responsive regula-

tion that designs a mix of regulatory options by arraying them hierarchically,

with the least interventionist options intended to be the most common at the

base of the pyramid. This is complemented by a capacity to escalate up

through progressively more interventionist options. It is not the purpose of

this article to reiterate the evidence and arguments for and against responsive

regulation as a general theory to explain pollution prevention, crime preven-

This article was researched while visiting the University of Cape Town. I thank many people

there who gave me wonderful guidance and assistance, and the Australian Research Council for

funding support.

Address correspondence to John Braithwaite, Regulatory Institutions Network, College of

Asia and the Pacific, Australian National University, Coombs Extension Building, Fellows Rd.,

Canberra 0200, Australia.Telephone: + 61 2 61252332; E-mail: john.Braithwaite@anu.edu.au

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LAW & POLICY, Vol. 36, No. 4, October 2014 ISSN 0265–8240

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12026

tion, tax compliance, the bonus culture of banking, the prevention of war,

and more (Braithwaite 2008; Ayres and Braithwaite 1992). Its purpose is only

to explore the critique that certain claims of responsive regulation become

false when escalation to a violent sanction is in play.

Some conceive responsive regulation narrowly as a theory of business

regulation. For good or ill, Braithwaite (2008) always conceived it as a

general theory of regulation where regulation is seen broadly as “steering the

flow of events” (Parker and Braithwaite 2003). Steering the flow of events is

viewed broadly in terms of both the objects and the methods of regulation.

As discussed herein, in 1990, I applied the theory to the invasion of Kuwait

by Iraq. Since then I have consistently argued that it is as relevant to regu-

lation of states by nonstate actors as it is to regulation of nonstate actors by

states. This article explores the limits of violence and, in particular, the limits

of violence as a last resort at the peak of responsive regulatory pyramids,

across disparate domains—prison violence, extrajudicial assassination by

states, war, UN peacekeeping, and especially resistance to states, where

resistance to apartheid is used as a strategic case. Because responsive regu-

latory theorists are minimalists about use of imprisonment, they must con-

front the challenge that perhaps they should be ethically consistent and be

abolitionists. If they can pass this test, surely they cannot pass the moral test

of finding extrajudicial assassination of criminals acceptable as a last resort?

This article argues that responsive regulatory theorists cannot rule out extra-

judicial assassination, just as they cannot be abolitionists or pacifists.

Responsive regulation is conceived here as a theory that reveals practical

ways to be parsimonious about violence without total renunciation of

violence.

Responsive regulation privileges restorative dialogue over deterrence as a

preferred and more effective regulatory strategy. Yet the paradox of the

pyramid is that a tough deterrent peak of the pyramid drives more of the

effective action down to the dialogic base of the pyramid. Responsive regu-

lation sees the passive deterrence of criminological theory and Gary

Becker’s (1992) Nobel Prize winning economics of deterrence as rather inef-

fective but sees the dynamic escalation of deterrence in international rela-

tions theory as a more powerful explanatory idea. Part of the idea of

responsive regulation is that the peak of the pyramid is a tough measure

that creates so much pressure to resolve problems at lower levels of the

pyramid that the peak is rarely used. The tougher the sanctions at the peak,

the greater the capacity to drive regulation down to the cooperative base of

the pyramid.1Nothing is tougher than violence. But what of the ethics of

the pyramid when that tough response at the peak is violent? This article

argues that there are important contexts where a violent peak to the

pyramid renders the empirical claims of responsive regulatory theory false.

It seeks to specify conditions where the general theory of responsive regu-

lation can be true and ethical even when violence lurks as an ineradicable

reality of how actors regulate one another.

Braithwaite LIMITS ON VIOLENCE 433

© 2014 The Author

Law & Policy © 2014 The University of Denver/Colorado Seminary