Brief book review – Risk Regulation and Administrative Constitutionalism

Elizabeth Fisher, 2010, Hart Publishing, 290 pages.

Professor Elizabeth Fisher (University of Oxford) presents a fresh reading of and engagement with the risk governance and risk regulation literature in Risk Regulation and Administrative Constitutionalism. Her starting point is that too often this literature is concerned with either the democratic decision-making process or the scientific decision-making process that underpin risk regulation. Instead, she argues, it is better to understand arguments over how to govern risk as a dispute over the legal validity of public administration and what orientation it should have. Put simply, debates of risk-based regulation are debates over what is good public administration (p.165).

This analytical viewpoint is illustrated through five case studies from different legal cultures: (1) the BSE crisis in the UK in the 1990s; (2) juridical review of risk regulation in the USA in the 1970s; (3) the interpretation of the precautionary principle by courts in Australia; (4) the interpretation of the World Trade Organisation’s Sanitary and Phytosanitary Agreement; and, (5) the interpretation of the precautionary principle in the EU context.

Building on the extant regulatory literature and these five cases, Fisher distils two ideal type orientations of administrative constitutionalism. First is the rational-instrumental paradigm. It “construes public administration to be an ‘instrument’ of the legislature – a ‘robot’ or ‘transmission belt’ whose task is strictly to obey the pre-ordained democratic will as it is expressed in legislation. In doing so, it should act effectively and efficiently. Public administration may not be democratic, but it can be structured to ensure the efficient pursuit of goals generated by the democratic process” (p.28). Under this paradigm, there is a limited role for general administrative discretion: it “promises accountability and control but at the cost of effective problem solving” (p.251-2).

Second is the deliberative-constitutive paradigm. It “promotes a model of public administration that is designed to address the factual and normative complexities of technological risk evaluation by granting to public administration substantial and ongoing problem-solving discretion in relation to particular issues. This power is needed so that the processes of technological risk evaluation can adapt to the uncertainties and issues involved in relation to specific technological risks. Public administration to do its task effectively must be a semi-independent and permanent institution” (p.30). In a nutshell, it “promises effective problem solving at the costs of forgoing a simple means of holding decision-makers to account” (p.251).

Fisher finds that the rational-instrumental paradigm is dominant in the five cases studied. This, she concludes, indicates that how risk regulation is organised is very much a reflection of the normative expectations a community has about the role and nature of its public administration. There is little mixing of the two paradigms in practice, which results in her to warn of the dangers of utopianism. Both paradigms have their weaknesses, the book illustrates, and rather than sticking with one and not the other it may be better to follow more nuanced or mixed forms of these paradigms for different areas of risk regulation.

Disclaimer In these brief book reviews, I discuss classic and contemporary books that make up the canon of regulatory scholarship. I focus on their central guiding idea or core notions and aim to keep the reviews to around 500 words. Unfortunately, this implies I must sacrifice a considerable amount of detail from the books reviewed.

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