Regulation, Ethics and ?Policy Technology'

• Author: Geoff Brennan and Geoff Sayre-Mccord
• Pages: 741-761

Regulation, Ethics and ‘Policy Technology’

GEOFF BRENNAN AND GEOFF SAYRE-MCCORD*

ABSTRACT

Regulation comes in many forms. Indeed, regulation comes in so many that

one might reasonably worry that all that might usefully be said about the ethics

of regulation would have to focus on specific regulations (as issued by, say, the

FDA) or on specific kinds of regulations (e.g., government regulations as

opposed to other kinds of social regulations). Is there anything worth saying

about the ethics of regulation in general? We think so—we argue that viewing

social regulation, whatever form it takes, should be seen as a matter of policy

technology, and that so doing offers a framework for thinking fruitfully about

the whole range of regulation in ways that anticipate and illuminate serious eth-

ical issues that regulation (of whatever kind) might pose or address.

TABLE OF CONTENTS

I. SETTING THE FOCUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742

II. THE VALUE VS. THE ETHICS OF REGULATION. . . . . . . . . . . . . . . . 745

III. RESTRICTIONS VS. INCENTIVE MANIPULATION . . . . . . . . . . . . . . . 747

IV. STANDARD VS. NON-STANDARD PUBLIC GOODS . . . . . . . . . . . . . . 750

V. OPERATING VIA SOCIAL NORMS AND ESTEEM . . . . . . . . . . . . . . . 752

VI. GOVERNMENT POLICY VS. ESTEEM MODIFICATIONS . . . . . . . . . . . 753

VII. THE QUASI-FEDERAL STRUCTURE OF THE ESTEEM ECONOMY . . . 755

VIII. EXPLICIT POLICY DESIGN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756

* We are grateful to John Hasnas for providing the incentive to think about the ethics of regulation.

Truth be told, without his invitation, we likely would not have spent much time thinking about these

issues. We found it thoroughly enjoyable and rewarding. An early version of this paper was discussed

with a terrific group of people at The Ethics of Regulation Symposium at the Georgetown Institute for

the Study of Markets and Ethics. We are especially grateful to Kendy Hess, John Hasnas, Harrison Frye,

and Andrew Cohen for the questions they raised and the points they made at that workshop. © 2021,

Geoff Brennan & Geoff Sayre-McCord.

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IX. A ‘CONSTITUTIONAL’ ASPECT OF THE REGULATION VS.

BUDGETARY INSTRUMENT ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . 757

SUMMARY AND CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760

I. SETTING THE FOCUS

We start by explaining how regulation will be understood in this paper. This is

worth doing because, so often, what counts as regulation varies and is rarely made

explicit, especially when people are arguing that regulation offers crucial solutions

or constitutes an intolerable interference. Often such discussions focus on a particu-

lar case—regulations issued by the FDA for example—and ask whether the regula-

tions that prevail are the best ones, and indeed whether things would be better if

there were no regime of drug regulation at all. This approach involves restricting the

scope of the topic in two ways: first, it narrows the domain (to some specific area of

policy); and second, it conceives of regulation as a distinctive business of govern-

ments. It is worthwhile calling both these restrictions into question.

Imagine that you are a staunch libertarian (this will be a stretch for many of

us). You are, let us suppose, an exponent of the ‘minimal state.’ You think that

government’s role should be limited to specifying and enforcing basic rights

(both personal and property); setting the rules determining which among those

rights is alienable and which not; and for the alienable ones, specifying what rules

apply to (voluntary) exchanges. It is, we think, obvious that this set of (minimal

state) rules—the specification of property rights and the rules for the exchange of

property—represents in itself a regulatory regime. Moreover, when you recog-

nize the proclivity of governments to intervene in the outcomes of individual

interactions beyond setting up the basic rules of your favored libertarian order,

1

you might think it appropriate and necessary to have additional regulations in

place that explicitly forbid such interventions, in the hopes of discouraging them.

In this spirit, it might be useful to distinguish between ‘constitutional’ and

‘intra-constitutional’ regulations—between those regulations that constitute the

regime and those regulations that operate within the regime so constituted.

2

So,

1. W.S. Gilbert (of Gilbert & Sullivan fame) puts the requirement nicely in Iolanthe, when he

observes that:

while the House of Peers withholds its legislative hand,

and noble statesmen do not itch

to interfere with matters which

they do not understand,

as bright will shine Great Britain’s rays

as in King George’s glorious days.

W.S. GILBERT & ARTHUR SULLIVAN, IOLANTHE 30 (n.p., J.M. Stoddart & Co. 1882).

2. This is a distinction, for example, that James Buchanan emphasizes in the “constitutional political

economy” strand of his public choice project—and corresponds to Rawls’s distinction between matters

relevant to the “basic structure” and other matters. See generally JAMES M. BUCHANAN & GORDON

742 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:741