Regulatory Choice for Alternative Modes of Regulation: How Context Matters

DOIhttp://doi.org/10.1111/j.1467-9930.2011.00341.x
Published date01 July 2011
AuthorFLORIAN SAURWEIN
Date01 July 2011
Regulatory Choice for Alternative Modes of
Regulation: How Context Matters
FLORIAN SAURWEIN
The growing role of alternative modes of regulation (self- and co-regulation)
gives rise to major questions about regulatory choice between available gover-
nance mechanisms. Strategic policy instruments such as regulatory impact assess-
ment guidelines (RIA) typically suggest assessing the suitability of alternative
modes of regulation but they hardly specify assessment criteria. This article
identifies contextual factors that should be included in any effort to predict when
alternative regulatory arrangements are likely to emerge and to be effective. To
demonstrate the value of the approach, it is applied to an analysis of self-
regulation in the domain of content-rating in the audiovisual industry.
INTRODUCTION
The combination of globalization, liberalization, and technological change
has triggered intense debates about the options for regulatory reform,
including the growing role of alternative modes of regulation such as self-
and co-regulation. These alternatives to traditional statutory regulation are
marked by the involvement of nongovernmental actors in regulatory pro-
cesses. Both industry and policymakers consider alternative modes of
regulation to have great potential for solving contemporary regulatory
problems, although the general faith in market forces and industry self-
regulation seems to be declining in the wake of the recent crisis in the
financial market. Today, policymakers, industry, civil-society organiza-
tions, and academics are more than ever required to seriously assess the
potential and limitations of alternative modes of regulation to inform or
really improve regulatory systems.lapo_341334..366
This article contributes to the development of analytical concepts for the
assessment of alternative modes of regulation. The first section describes
This article builds on a comparative research project on international co- and self-regulation in
communications markets commissioned by OFCOM. I wish to thank my collaborators Michael
Latzer, Stefaan G. Verhulst, and Monroe E. Price for their valuable contributions.
Address correspondence to Florian Saurwein, IPMZ–Institute of Mass Communication and
Media Research, Andreasstrasse 15, CH-8050 Zurich, Switzerland. Telephone: +41 (0)44 635
20 85; E-mail: f.saurwein@ipmz.uzh.ch.
LAW & POLICY, Vol. 33, No. 3, July 2011 ISSN 0265–8240
© 2011 The Author
Law & Policy © 2011 The University of Denver/Colorado Seminary
self- and co-regulation and links them to the general institutionalist debate
on governance in the regulatory state and to policy initiatives for regulatory
impact assessment. The second section proposes an analytical approach
to the assessment of alternative modes of regulation from a public policy
perspective. It shows how context matters by outlining the conditions that
facilitate or inhibit the formation and the performance of alternative regula-
tory institutions. It compiles assessment criteria for regulatory choice, focus-
ing on enabling contextual conditions for self- and co-regulation (market and
regulatory environments) and derives conclusions for the role of the state in
alternative regulatory arrangements. In the third section the criteria are
applied to a brief evaluation of potentials and limits of self-regulation in the
audiovisual industry. Finally, the article summarizes the conceptual pillars of
the proposed approach and concludes with recommendations on regulatory
choice for the governance of content-rating schemes.
GOVERNANCE IN THE REGULATORY STATE
Beginning in the 1970s, the fading belief in the hierarchical state as an
effective political steering centre of society gave rise to the search for alter-
native modes of guiding socio-economic development, resulting in major
changes in political steering and control, which are generally dealt with as
shifts from government to governance (Rhodes 1996; Rosenau and Czempiel
1992), from hierarchical to a cooperative form of government (Mayntz 2009,
2003), from an interventionist/positive state towards a regulatory state (Moran
2002; Majone 1999, 1996), and even a postregulatory state (Scott 2004).
Today, especially the governance approach (Schuppert 2006, 2005) assists
scholars of various disciplines in their efforts to analyze complex patterns of
steering and control in contemporary societies. The governance approach
emphasizes the institutional dimension of social coordination—that is, the
formal and informal rules, including their enforcement arrangements that
steer individual behaviour in a particular direction (Furubotn and Richter
1997). Institutions in this sense include informal values and formal norms/
rules as well as the organizations and organizational mechanisms for rule
making and enforcement (Mayntz 2008). Focusing on institutions, the
governance approach extends the traditional, rather narrow focus on the
state, national government, governmental organization, and hierarchical rule
enforcement. It recognizes varieties in institutional steering and control
arrangements—that is, the varieties in rules, organizations, and actors in
their respective roles as controllers and controlees, and the varieties in
control mechanisms (Scott 2004). The governance approach analytically inte-
grates components of control structures that lie beyond the sovereign nation
state and analyzes the interplay between the various institutions of steering
and control. It describes, for example, the horizontal and vertical extension
of national government and points to the changing division of regulatory
Saurwein HOW CONTEXT MATTERS 335
© 2011 The Author
Law & Policy © 2011 The University of Denver/Colorado Seminary
responsibilities between public and private organizations and to changing
governing styles and instruments.
A growing body of literature analyzes the institutional changes in the
governance arrangement and provides evidence of emerging governance pat-
terns. European integration in particular has stimulated scholars to show the
formations of multilevel governance, the delegation of regulatory powers to
“non-majoritarian institutions” (Thatcher and Stone Sweet 2002, 1), and the
increase of new modes of governance (NMG). In a nutshell, the emergence of
the regulatory state is strongly associated with the rise of independent regu-
latory agencies (IRAs). Analyses of the regulatory state therefore focus on
the politics of delegation, the rise of independent regulatory agencies, the
state of de facto independence, and the trade-off between efficiency and
democratic accountability (Jacint, Levi-Faur, and Fernandez 2009; Gilardi
2008, 2007; Maggetti 2007; Thatcher and Stone Sweet 2002). The analysis of
new modes of governance transcends the narrow focus on IRAs. It contrasts
the old/traditional modes of governance with the new ones, which are char-
acterized by a more indirect approach towards achieving behavioural change
(Knill and Lenschow 2004). New modes of governance are typically not
based on binding legislation and not enforced by means of command-and-
control and legal sanction mechanisms. Instead, the new modes of gover-
nance rely on soft law and an open method of coordination (OMC), target
development and benchmarking, communicative instruments, and frame-
work regulations. At the implementation stage, they use nonhierarchical and
less formal modes of steering based on the creation of incentive structures,
mutual learning, arguing and persuasion, and nonlegal sanctioning methods
such as naming and shaming (see Treib, Bähr, and Falkner 2005; Héritier
2002). Many of the new modes of governance are exercised by state actors or
intergovernmental organizations. However, the new modes of governance
also include self-regulation of private actors and co-regulation of private and
public actors.
Definitions of self- and co-regulation vary widely in the literature, but
there is a common understanding that self- and co-regulation are alternatives
to pure state/governmental regulation. They are marked by the involvement
of nongovernmental actors in regulatory processes. From an institutional
perspective, regulation takes place on a continuum between pure state
regulation, on the one hand, and pure self-regulation, on the other, and can
generally be understood as a combination of state/public and societal/private
contributions, which are closely interlinked (Lehmkuhl 2008; Gunningham
and Rees 1997; Sinclair 1997). The relationships between the state and
private institutions, the hybrid regulatory constellations involving public and
private actors, and the role of law and the involvement of government in
alternative regulatory arrangements are therefore highlighted frequently in
the literature (Engel 2004; Black 2001, 1996; Ogus 2001; Baldwin and Cave
1999; Gunningham and Sinclair 1999; Doyle 1997; Cane 1987; Michael
1995). For instance, many analytical classifications suggest analysis of
336 LAW & POLICY July 2011
© 2011 The Author
Law & Policy © 2011 The University of Denver/Colorado Seminary

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT