To conclude this review of the literature on responsive regulation, I will zoom in on ethical and epistemic challenges. In other words, is it proper for governments to base their regulatory responses on the actions of their targets? Is this not violating the assumption that like-cases should be treated alike? To what extent (and how) can regulators and their representatives know which regulatory response will achieve the best outcomes in individual situations? These questions are relevant to answer if we wish to make responsive regulation a meaningful regulatory practice.
If you are tuning in just now, then I strongly recommend reading the earlier posts first: a broad introduction to the series, an exploration of the history of responsive regulation, examples of responsive regulation in regulatory practice, and evidence and findings on how responsive regulation helps to improve regulatory policy and practice.
Ethical challenges
Most of the ethical challenges discussed in the literature can be summarised as: “To be responsive to one stakeholder is to be potentially unresponsive to another”.[1]
Discretionary ethics
A cluster of ethical issues concerns the inconsistencies in the application of responsive regulation that was already discussed in the previous blog post. From a discretionary ethics point of view, such inconsistencies are particularly problematic because how regulators respond to a target’s behaviour is often largely outside the reach of that target. Besides, external parties may seek to play the ambiguities of responsive regulation and influence the relationship between regulators and their targets. This introduces a risk that the response of the regulator is, for example, influenced by external societal or political pressures and not by the behaviour of the target.
Control-centred ethics
From a control-centred ethics point of view, responsive regulation may be problematic because regulators may too quickly embrace it as a rational, utilitarian tool.[2] Particularly the presentation of tit-for-tat strategy and the related regulatory pyramids build on the idea that targets of regulation will respond “rationally” (and predictably) to the escalation or de-escalation of the regulator. Likewise, responsive regulation assumes that regulators will respond “rationally” (and predictably) to their targets. Yet, such assumptions of rationality have long been debated. In a similar vein, while responsive regulation aims to achieve compliance through non-domination, it leaves in place a power imbalance: the regulator is always more potent than its target, and can always fall back on using the benign big gun.
Deliberative ethics
A final ethical issue worth mentioning here is that responsive regulation plays a high-stake game with trust, so argue some scholars. Responsive regulation may crowd-out trust throughout the regulatory system. If targets or regulation lose trust in the regulator early on in the regulatory dialogue when the latter takes a facilitative stance, they are unlikely to be trusting the regulator later in the regulatory dialogue once its escalates to more formal position.[3] Somewhat related to this issue, punishing a target with “soft instruments” may have unintended spill-over effects. For example, the staff at all levels of a “named and shamed” firm may feel stigmatised as violators also, which is unlikely to happen with “traditional” punishments such as fining that firm (which will likely only affect staff at the higher echelons of the firm—if at all). Such staff may be less trusting of the regulator in a future interaction.
Epistemic challenges
Many of the epistemic challenges discussed in the literature address the limits of and differences in knowing what it means to be responsive. Such challenges are identified at both the level of individuals (actor-centred responsiveness) and of regulatory systems as a whole (institution-centred responsiveness).
Actor-centred responsiveness
For example, Vibeke Lehmann Nielsen observes five different types of responsiveness in inspectors.[4] First is short-term responsiveness: when observing a violation, inspectors base their response on the gravity and number of violations discovered at the same time. Second is long-term responsiveness: the average severity and number of previous breaches affect this response also. Third, attitude responsiveness: besides these objective markers, inspectors are also influenced by how willing they think their target is to improve its behaviour. Fourth, dialogic responsiveness: inspectors’ responses are further affected by the yearly average number of engagements they have with their targets. Fifth and final, subjective performance responsiveness: inspectors are also swayed by their overall, but often individual, assessment of their target’s standard of compliance.
These different types of responsiveness only amplify the inconsistencies in the implementation of responsive regulation that was observed in other studies. Insights like these only stress the need for training and institutional guidance when embracing responsive regulation as a heuristic (or philosophy) in regulatory practice.
Institution-centred responsiveness
It is of relevance to recall that responsive regulation as conceptualised by Ian Ayres and John Braithwaite builds on a republican political philosophy—or even, a republican ideal. This ideal centres on citizen participation, a desire of those in power to reduce the domination of those not in power, and to support targets of regulation to be “a responsible citizen, to be law abiding”.[5] This political undertone makes it challenging to give a value-neutral answer to questions as to whether responsive regulation helps to achieve desirable regulatory ends at the institutional level.
Those in favour of the republican ideal can readily find positive results responsive regulation even if there are no measurable results in terms of, for example, increased compliance or reduced efforts in achieving compliance. That is, it is easy to argue that most cases of responsive regulation that we have met in this review have reduced domination of the targets of regulation. Yet, those who are less favourable of (or agnostic to) the republican ideal can easily argue that, after close to 30 years of research on responsive regulation, we lack clear evidence that as a practice responsive regulation outperforms its alternatives.[6]
Conclusion: What have we learnt from this review or responsive regulation
In the first blog post in this series, I explained that this series would be a little different from the other ones that I have published so far. Rather than broadly discussing a general concept of or trend in regulatory practice (such as the use behavioural insights, risk-based governance, or systems thinking), this series of blog posts has zoomed in on the details of the theory of responsive regulation as it was introduced by Professors Ian Ayres and John Braithwaite in their landmark publication Responsive Regulation: Transcending the Deregulation Debate in 1992.
I acknowledge that the level of detail presented in this series may have overwhelmed some readers. Still, I hope that the review has driven home at least the following insights:
- Responsive regulation is about much more than merely visualising enforcement in a set of pyramids. The pyramids are just one of the many ways of operationalising a central heuristic underpinning the theory: to begin a regulatory interaction with the least intrusive interventions possible and only escalate to more intrusive interventions if the lesser intrusive ones do not result in desired outcomes.
- At the same time, not every form of regulation that responds to (or claims to respond to) a target’s behaviour is responsive regulation—not anything goes. Responsive regulation asks regulators what it means to be responsive at different levels of the regulatory system, and how to be responsive.
- Thus, responsive regulation, as conceptualised by Ayres and Braithwaite, can be seen as a sliding scale of regulatory heuristics and strategies bounded by a set of (public) values: flexibility, non-domination, and participation.
As always, these blog posts are the drafts of the chapters for the State of the Art in Regulatory Governance Research Paper that will follow from the full review. I aim to have it available on the blog shortly.
[1] Bryer, T. (2007). Toward a relevant agenda for a responsive public administration. JPART, 17(3), 479-500.
[2] Which comes with an additional ethical issue: the downshifting of responsibilities from the top of regulatory agencies to frontline workers by expanding their discretionary space.
[3] Likewise, if a regulator loses trust in its target early on in the regulatory dialogue when seeking compliance through collaboration, the regulator is unlikely to trust its target later on in the dialogue when it has escalated to a more formal a strict interaction.
[4] Lehmann Nielsen, V. (2006). Are regulators responsive? Law & Policy, 28(3), 395-416.
[5] Ayres, I., & Braithwaite, J. (1992). Responsive regulation. Transcending the deregulation debate. New York: Oxford University Press.
[6] The only area where we have a strong evidence base of the success of responsive regulation is taxation (see the wide variety of research into responsive regulation and taxation on http://regnet.anu.edu.au/research/publications). That being said, taxation is in general considered to be a highly efficient way of regulating the public good where modest efforts taken by governments will likely yield large results.
From the Regulatory Frontlines 