Bronwen Morgan

The Economization of Politics: Meta-Regulation as a Form of Nonjudicial Legality

Recent developments in regulatory reform strategies increasingly focus on controlling the process of regulation itself, rather than regulating social and individual action directly. This article explores the reflexive systematization of regulatory policy by focusing on institutions and processes that embed regulatory review mechanisms deploying economic rationality into the every-day routines of governmental policy-making. It explores both the social logic underlying this phenomenon of ‘meta-regulation’, and its political implications, primarily in relation to a particular instance of meta-regulation established in Australia in the 1990s. The social logic of meta-regulation is characterized as an instance of nonjudicial legality, situated at the inter-section of two trends - an increasing legalization of politics and a growing reliance on nonjudicial mechanisms of accountability. The political implications can be summed up as an ‘economization’ of regulatory politics. Meta-regulation excludes competing ways of understanding regulatory policy choices, causing bureaucrats to ‘translate’ aspects of social welfare that previously may have been expressed in the language of need, vulnerability or harm into the language of market failures or market distortion. This process tends to silence certain critical modes of demanding justice, particularly those that rely on moral or distributive values.

Social citizenship in the shadow of competition : the bureaucratic politics of regulatory justification

Economic adjudication and the rule of law public law and political economy in the Australian administrative state the contested terrain of regulatory conversation agenda-setting and bureaucratic politics implementation in competitions shadow technocratic citizenship.

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

The 1990s and 2000s have witnessed a spurt of energetic institution-building in the developing world, as regulatory agencies emerge to take over the role of the executive in key sectors. This rise of the regulatory state of the south is barely noticed both by scholars of regulation and of development, let alone adequately documented and theorized. Yet the consequences for the role of the state and modalities of governance in the south are substantial, as politically charged decisions are handed over to formally technocratic agencies, creating new arenas and forms of contestation over the gains and losses from development decisions. Moreover, this shift in the developing world comes at a time when the regulatory state in the north is under considerable stress from the global financial crisis. Understanding the regulatory state of the south, and particularly forms of accommodation to political pressures, could stimulate a broader conversation around the role of the regulatory state in both north and south. This volume seeks to provoke such a discussion by empirically exploring the emergence of regulatory agencies of a range of developing countries across Asia, Africa, and Latin America. The cases focus on telecommunications, electricity, and water: sectors that have often been at the frontlines of this transition. The central question for the volume is: Are there distinctive features of the regulatory state of the South, shaped by the political-economic context of the global south in the last two decades? To assist in exploring this question, the volume includes brief commentaries on the case studies from a range of disciplines: development economics, law and regulation, development sociology, and comparative politics. Collectively, the volume seeks to shape the contours of a productive inter-disciplinary conversation on the emergence of a significant empirical phenomenon - the rise of regulatory agencies in the developing world - with implications both for the study of regulation and the study of development. Contributors to this volume - Ahmed Badran, Research Fellow, Aston Centre for Critical Infrastructure and Services, Aston University Nai Rui Chng, Affiliate Research Fellow in Human Rights, University of Glasgow Megan Donaldson, Institute Fellow, New York University School of Law Michael Dowdle, Visiting Associate Professor with National University of Singapore Faculty of Law Kathryn Hochstetler, CIGI Chair of Governance in the Americas, Balsillie School of International Affairs, and Professor of Political Science, University of Waterloo Kanishka Jayasuriya, Professor of International Politics and Director of the Indo-Pacific Governance Research Centre (IPGRC), University of Adelaide Jacint Jordana, professor of Political Science and Public Administration, Universitat Pompeu Fabra Benedict Kingsbury, Murray and Ida Becker Professor of Law, New York University School of Law Piyush Joshi, Partner, Clarus Law Associates, New Delhi David Levi-Faur, Associate Professor of Political Science, Hebrew University of Jerusalem Roselyn Hsueh, Assistant Professor in the Department of Political Science at Temple University Maria Victoria Murillo, Associate Professor, Department of Political Science and the School of International and Public Affairs, Columbia University Alison Post, Assistant Professor, Department of Political Science, University of California, Berkeley Mariana Moto Prado, Assistant Professor, Faculty of Law, University of Toronto Lant Pritchett, Professor of the Practice of International Development, Kennedy School of Government, Harvard University Arun Thiruvengadam, Assistant Professor, Faculty of Law, National University of Singapore Rene Uruena, Assistant Professor and Director, International Law Program, Universidad de los Andes, Bogota

Regulating the Regulators: Meta-regulation as a strategy for reinventing government In Australia

Regulatory reform is increasingly centred around mechanisms of systematic review processes which ‘regulate the regulators’, These meta-regulatory regimes shift the balance in regulation-making from politicans and parliament to economists in the central agencies of government. The article traces the emergence of a new meta-regulatory regime in Australia introduced under the rubric of competition, and argues that one of its effects is a quasi-constitutional shift away from democratic legitimation of legally binding rules.

Understanding the Rise of the Regulatory State in the Global South

This is a working paper intended as the framing paper for a workshop on the rise of the regulatory state in the Global South. The paper, and the broader workshop, explore whether, and how, the rise of the regulatory state in the Global South, and its implications for processes of governance, are distinct from cases in the North. With the exception of a small but growing body of work on Latin America, most work on the regulatory state deals with the US or Europe, or takes a relatively undifferentiated ‘legal transplant’ approach to the developing world. Our focus is on regulatory agencies as a particular expression of the regulatory state, though we acknowledge that the two are by no means synonymous. We take seriously the historical legacy of the idea of a North/South divide while also integrating the considerable changes occurring topically in this purported divide (caused by increased economic integration between North and South and increased differentiation within the South). Three entry points into exploring the distinctive nature of the regulatory state in the Global South are discussed. First, is there a distinctive genesis of regulatory agencies in developing countries? Second, to what extent and how is the regulatory state of the South shaped by the interface between the domestic and the international? Third, how does the practice of regulation and the political opportunities afforded by state-society interactions in regulatory agencies shape regulatory outcomes on the ground, particularly in relation to the much higher (in comparison to industrialised countries) levels of unserved citizens and informal service providers? The paper draws briefly on a series of comparative case studies of infrastructure regulators (electricity, water, and telecoms) drawn from Africa, Asia and Latin America. These case studies have been written up but are still in draft form and will be further integrated into the next version of the paper, with the aim of drawing out common themes that characterize a “regulatory state of the South,” while remaining sensitive to the variations in level of economic development and political institutional contexts within ‘the South’.

Socio-legal Studies Module: the Bristol Experience

In this chapter we discuss the standalone Socio-Legal Studies module that has been offered to undergraduate students at Bristol University since 2006. The module was offered initially to second and third-year law students; it is now limited to third-year law students, but is open to students from other departments and schools in the Faculty of Social Sciences and Law. The module is optional but has drawn a healthy number of students in the six years that it has run. The module is not intended to provide the detailed training which we offer at postgraduate level, but seeks to provide students with an encounter with law ‘from the outside’ through a social science lens. This has required a compromise between an approach based entirely on theory and one on empirical methods and research.

Sharing Subjects and Legality: Ambiguities in Moving Beyond Neoliberalism

This chapter draws from an extensive study of grass-roots innovation in response to climate change challenges, across a continuum from social activism to social enterprise. We examine the diverse motivations of entrepreneurs for starting community-supported agricultural projects, car-sharing schemes or co-working spaces. First, we show how the various biographical trajectories of the entrepreneurs shape the ways they create initiatives that espouse economic, environmental and social benefits. Second, we argue that such benefits should be understood through the ambiguity of a socio-legal lens. While sharing subjects may occasionally catalyze opportunities to move beyond neoliberalism, the ways in which lawyers and legal techniques shape the infrastructure of collaboration are deeply implicated in the economics of the neoliberal inheritance.

Legal models beyond the corporation in Australia: plugging a gap or weaving a tapestry?

Purpose This paper aims to explore the availability of new legal models for social enterprise development in Australia, asking the question: what does a distinctive focus on legal form add to the scholarly exploration of social enterprise? The paper has a dual purpose: firstly, to present a general empirical review of the fact, possible causes and implications of the absence of new legal models for social enterprise in Australia; and secondly, to make a polemical argument highlighting some of the advantages of developing a distinctive legal structure for social entrepreneurs in Australia. Design/methodology/approach The paper reconciles two contending accounts. One would stress the absence of new legal models (the “gap” analysis). The other would acknowledge the absence of new legal models, while stressing the relevance of existing legal models for pursuing social enterprise goals. Both accounts are descriptively true, but the tension between them relates in part to the level of analysis (legal-political, collective voluntary action or bottom-up individual actors) and, in part, to longstanding tensions in the conceptualisation of social enterprise. Findings The paper provides evidence of the rising salience of existing cooperative legal forms, rising diversity in the legal model choices of individual social enterprises and the emergence of two significant bottom-up developments in voluntary model rules. The legal-political bottleneck that remains is related to the constitutional structure of federal and state power, key macro-political policy trends in the late 1990s and the distinctive nature of the Australian “wage-earners” welfare state settlement. Originality/value The paper highlights that what may appear as a “gap” in the legal landscape of Australian social enterprise is more nuanced. Despite the striking absence of any distinct new legislated legal models, the overall situation is a complex landscape providing multiple threads for weaving together diverse forms of social enterprise. Although legal frameworks may not be as salient as governance design choices, they generate three important second-order effects: signalling, legitimation and professional networks. Taken together, these may support a case for the distinctive value of a specific hybrid legal model for social enterprise.

Classifying social enterprise models in Australia

Purpose This paper aims to document the nature of social enterprise models in Australia, their evolution and institutional drivers. Design/methodology/approach The paper draws on secondary analysis of source materials and the existing literature on social enterprise in Australia. Analysis was verified through consultation with key actors in the social enterprise ecosystem. Findings With its historical roots in an enterprising non-profit sector and the presence of cooperative and mutual businesses, the practice of social enterprise in Australia is relatively mature. Yet, the language of social enterprise and social entrepreneurship remains marginal and contested. The nature of social enterprise activity in Australia reflects the role of an internally diverse civil society within an economically privileged society and in response to an increasingly residualised welfare state. Australia’s geography and demography have also played determining roles in the function and presence of social enterprise, particularly in rural and remote communities. Originality/value The paper contributes to comparative understandings of social enterprise and provides the first detailed account of social enterprise development in Australia.

Limiting Resources: Market-Led Reform and the Transformation of Public GoodsLimiting Resources: Market-Led Reform and the Transformation of Public Goods, by HaglundLaDawn. University Park, PA: Pennsylvania State University Press, 2011. 238pp.

LaDawn Haglund has written a rich and engaging account of the dynamics of market-led reform in electricity and water services in Costa Rica and El Salvador, based on a four-year period of fieldwork in the early 2000s and comparative-historical analysis going back to 1980. The book’s main title, Limiting Resources captures in its use of the present participle the sense of agency and action that a more passive reference to ‘‘limited resources’’ would lose. In so doing, it evokes one of the core points of the narrative: that choice, strategic intent and conscious design have shaped the trajectory of the reforms at every stage, and that— especially at critical junctures—things could have been otherwise. The agency is multiple, attaching not only to powerful elites, both within and beyond national borders, but also to activists who fought the market-led reforms. She paints a picture of warring sets of ‘‘organizing principles,’’ loosely clustered around two competing poles of ‘‘social and economic rights-based’’ approaches to delivering water and electricity on the one hand, versus market-based approaches on the other hand. Her key conclusion (pp. 21 and 196) is that market failure is just as serious a problem as state failure and that markets are often especially inappropriate for managing essential services. Consequently, she urges (p. 196) that values other than cost and market efficiency must be included in conversations about reform. Stated baldly in terms of contests of principles and empirically stripped-back conclusions, the book’s key findings in many ways come as no surprise in the context of broader literature in this field and analogous studies elsewhere. But the summary findings cannot do justice to the richly textured way that her account is woven, importing far more empirical contingency, historical specificity and political ambiguity than the overview can convey. Haglund’s core focus is on the institutions built in Costa Rica and El Salvador to ensure the delivery of basic services, and the dynamics of reform catalysed by limited resources and powerful ideas about shrinking states. The book explores not only whether reforms promote better services, but also how other goals of equity, development and environment can be addressed. She draws on comparative political economy and developmental state literature, with a particular focus on Polanyi’s classic account of the ‘‘double movement’’ and notions of embeddedness, both critical aspects of the struggle to decommodify public goods. One of the strengths of her account is her stress upon the ways in which neoliberal pathways of development are just as embedded in social and political relationships as are the alternatives. Both the first two chapters emphasize the alternatives to market-led reform that can and have characterized the delivery of essential services. Chapter One focuses on the ‘‘contests of principle’’ mentioned above, articulating three sets of ‘‘organizing principles’’—social, political and ecological—that can contest market principles. The social justice principles draw on political theory, the political principles on political economy and developmental state studies, and the ecological principles on sustainable development studies. In the rest of the book, ecological principles in fact take very much a back seat. Haglund acknowledges this explicitly in the empirical setting, but suggests that the final chapters will return to this rather more than they in fact do. Chapter Two begins the work of contextualizing these principles, demonstrating how they clash with inherited institutional contexts and their underlying values, as well as with existing structures of power. Haglund chooses to present the alternative to market-led reform first, a ‘‘social and economic rights-based model’’ focused on principles of solidarity, equity and accountability. She does so not only because this was Reviews 213