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Code, control, and choice: why East is East and West is West

  • Roger Brownsword (a1)

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Smart regulators know that traditional command and control interventions, however tempting to politicians, are not always an effective or efficient form of response; they know that the criminal law tends to do better at defining crime into existence rather than defining it out; they know that private law remedies are of limited impact; and they know that public law control exercised by agency licensing or negotiation is open to the twin charges of being too soft or being too tough. Even smarter regulators know that they can sometimes achieve the desired regulatory effect by relying vicariously on non-governmental pressure (whether in the form of self-regulation or co-regulation by or with business or the professions, pressure exerted by consumers, the activities of pressure groups, and so on) or by relying on market mechanisms; in addition, they know that careful consideration needs to be given to selecting the optimal mix of various regulatory instruments.

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1. Generally, see N Gunningham and P Grabosky Smart Regulation (Oxford: Clarendon Press, 1998).

2. See, recently, eg Parker, C Restorative Justice in Business Regulation? the Australian Competition and Consumer Commission's Use of Enforceable Undertakings’ (2004) 67 MLR 209.

3. If recognising the limits of single instrument approaches is the first lesson for smart regulators, then the next lesson is to be aware of the range of regulatory instruments and the importance of putting in place an optimal mix. Hence, writing in relation to environmental protection, Gunningham and Grabosky (above n 1) argue that single instrument ‘approaches are misguided, because all instruments have strengths and weaknesses; and because none are sufficiently flexible and resilient to be able to successfully address all … problems in all contexts' (14). Instead, Gunningham and Grabosky ‘maintain that a better strategy will seek to harness the strengths of individual mechanisms while compensating for their weaknesses by the use of additional and complementary instruments' (14–15). They continue: ‘Moreover, such a mix of instruments will work more effectively if a broader range of participants are capable of implementing them. This means the direct involvement not only of governments (first parties) but also of business and other ‘targets’ of regulation (second parties) and a range of other interested actors (third parties), both commercial and non-commercial’ (15). For a review of the state of the (post-regulatory) art, see C Scott ‘Regulation in the Age of Governance: The Rise of the Post-Regulatory State’ In J Jordana and D Levi Faur (eds) The Politics of Regularion (Cheltenham: Edward Elgar, 2004) p 145.

4. L Lessig Code and Orher Laws of Cyberspace (New York: Basic Books, 1999) at pp 53–54; and ‘The Law of the Horse: What Cyberlaw Might Teach’ (1999) 113 Harv LR 501,533–534. In ‘The New Chicago School’ (1998) 27 J Legal Studies 661 at 672, Lessig says that the aim of this new version of smart regulation (in contrast to the ‘old’ Chicago school) is: ‘not only to understand the ways in which alternatives to law regulate, but to understand how law might be used to make selections among these alternatives. How law, that is, functions as a regulator and meta-regulator; how it might direct itself, or might also co-opt, use, or regulate, these alternative modalities of regulation so that they each regulate to law's own end.’.

5. Compare D Garland The Culture of Control (Oxford: Oxford University Press, 2001) at pp 115–116 (on smart crime control).

6. For a particularly clear account of the three Es - economy as minimal input, effectiveness as maximal output, and efficiency as the optimal gearing of input to output: see F White and K Hollingsworth Audit, Accountability and Government (Oxford: Clarendon Press, 1999).

7. Compare Martin W Bauer and George Gaskell ‘The Biotechnology Movement’ in Martin W Bauer and George Gaskell (eds Biotechnology - the Making ofa Global Controversy (Cambridge: Cambridge University Press, 2002) 379 at 383: ‘In a Durkheimian sense, social norms and technology are functionally equivalent’ social facts' constraining behaviour into recurrent patterns …making some actions more likely while discouraging others. Whereas norms are enforced by social sanctions, the use of things is channelled by affordances, the action adequate for the thing or the opportunity costs from not using the thing.’.

8. Johnson, D R and Post, D Law and Borders - the Rise of Law in Cyberspace’ (1996) 48 Stanford LR 1367.

9. Lessig, L The Zones of Cyberspace’ (1996) 48 Stanford LR 1403 at 1408 (emphasis added).

10. See eg Black, J De-centring Regulation: Understanding the Role of Regulation and Self-Regulation in a “Post-Regulatory” World’ (2001) 54 Current Legal Problems 103.

11. This stipulation is not so narrow as to exclude regional and supra-national governmental bodies or agents. However, it does exclude, at all levels, local, regional, and international, the channelling strategies of non-governmental organisations, corporations, trade associations, consumer groups, the professions, netizens, and the (non-governmental) rest.

12. See eg Scott, C Regulatory Innovation and the Online Consumer’ (2004) 26 Law and Policy 453.

13. I am mindful that my narrow conception of a regulator will be seen as unhelpful for some theoretical purposes - in particular, by those who seek to map the post-regulatory state. There is also the view, put by Colin Scott (above n 3, at 167 et seq) that, if we are ‘to secure a better understanding of core state governance functions and the relationship between them and other ordering processes', then we must’ have better tools to understand the pervasiveness of non-state law and non-hierarchical control processes'. In a sense, it is precisely such an understanding that I am after in this paper; but, in order to see the wood, I am eliminating some of the trees.

14. Here, I am following standard ‘law-jobs' analysis in assuming that there is a functional distinction between general preventive channelling and dealing with the trouble-case: see Karl N Llewellyn’ the Normative, the Legal, and the Law-Jobs: the Problem of Juristic Method’ (1940) 49 Yale LJ 1355.

15. Code, above n 4 Ch 7; and Lessig, L The Law of the Horse: What Cyberlaw Might Teach’ (1999) 113 Harv LR 501, 507514.

16. Code, above n 4, at 93–94.

17. Murray, Andrew and Scott, Colin Controlling the New Media: Hybrid Responses to New Forms of Power’ (2002) 65 MLR 491.

18. Above n 1.

19. Above n 5, at 124–125.

20. L L Fuller The Morality of law (New Haven: Yale University Press, 1969).

21. Compare J N Shklar Legalism (Cambridge, Mass: Harvard University Press, 1964).

22. Conversely, smart regulatees understand how best to respond to unwelcome regulatory intervention, including making use of code to avoid the impact of such regulation (that is, using code as anti-regulation): see T Wu ‘When Code Isn't Law’ (2003) 89 Virginia LR 679.

23. Compare J Law Organizing Modernity (Oxford: Blackwell, 1994). According to Law, the problem of ‘social order’ should be re-posed as a problem about the processes of ordering (not of an achieved and stable pattern of order) implicating a variety of materials, such as ‘talk, bodies, texts, machines, architectures' and so on (p 2). Drawing on actor- network theory, it is suggested that some materials travel better than others, some are more durable than others, and the like. Law, however, emphasises that such features are themselves relational effects. Thus: ‘Concrete walls are solid while they are maintained and patrolled. Texts order only if they are not destroyed en route, and there is someone at the other end who will read them and order her conduct accordingly. Buildings may be adapted for other uses - for instance as objects of the tourist gaze.’ (102) The significance of these remarks (and of Law's analysis in general) for smart regulators who aspire to put in place regimes of global governance bears some reflection. I should add that I am not sure whether relating Law's’ materials and modes' approach to ordering (diagramatically represented at 140)to Lessig's theory of regulatory modalities would be either possible or productive. I am sure, though, that this is not the place to attempt any such thing. But, nb below n 25.

24. For broader comments about regulatory pitch in relation to the nature of regulation, see Roger Brownsword’ Red Lights and Rogues: Regulating Human Genetics' In paper given at conference on ‘Regulating Biotechnology’, University of Amsterdam, 27–28 May 2004.

25. Unless regulators are wholly misguided in their approach, this suggests that the ‘rules of engagement’ will pan out in a broadly similar way when viewed from the perspective of regulatees.

26. For further discussion of the turn to proceduralism, see Deryck Beyleveld and Roger Brownsword, Consent in the Law (Englewood Cliffs, NJ: Prentice Hall, 2005) ch 10 (forthcoming).

27. Compare Jürgen Habermas, , ‘Introduction’ (1999) 12 Ratio Juris 329, at 330: ‘[T]hough modem law requires from its addressees nothing more than norm-conformative behavior, it must nevertheless meet the expectation of legitimacy, so that it is at least open to people to follow norms, if they like, out of respect for the law.’.

28. It is important to appreciate that the question of choice is pervasive in the traditional legal form of regulation. Background rules set the standard and present the choice; but the way in which (smart) enforcement agenciedagents respond to their regulatees might often depend upon whether they (regulatees) are perceived to be ‘compliers’ by disposition or’ evaders'. in relation to compliers, enforcers might adopt a more flexible, co-operative, and light touch approach; but, in relation to evaders, an altogether stricter approach might be adopted. in other words, regulatees not only have a choice with regard to the background question of compliance but also as to the kind of enforcement (and inspection) regime that they invite. for extended discussion of the dynamics of such enforcement relationships, set in the context of game theory, see John T Scholz ‘Cooperation, Deterrence, and the Ecology of Regulatory Enforcement’ (1984) 18 Law and Society Review 179.

29. See Deryck Beyleveld and Roger Brownsword ‘Law as a Moral Judgment vs Law as the Rules of the Powerful’ (1983) 28 American Journal of Jurisprudence 79 and Law as a Moral Judgment (London: Sweet and Maxwell, 1986; reprinted Sheffield: Sheffield Academic Press, 1994).

30. If we wished to firm up these conceptual distinctions, we would have ‘law’ (as the moral ideal-type of regulation), ‘regulation’ (as any channelling strategy that engages with practical reason), and ‘code’ (as any channelling strategy that by-passes engagement with practical reason).

31. Above, n 5, at 129.

32. Code, above n 4, at 91–92.

33. Code, above n 4, at 92.

34. Above, n 5, at 129.

35. See Andrew von Hirsch, David Garland and Alison Wakefield (eds) Ethical and Social Perspectives on Situational Crime Prevention (Oxford: Hart Publishing, 2000).

36. There is a sense in which techno-regulation embraces both the mainstream C20 criminological approach that views the ‘proper target of crime prevention [as]…the…processes bearing upon the formation of criminal character’ and that of situational crime prevention which targets’ the situational dynamics that produce particular criminal events', see David Garland ‘Ideas, Institutions and Situation Crime Prevention’ in Andrew von Hirsch et al, above n 35, 1 at 5.

37. Above n 5, at 183.

38. Above n 5, at 183.

39. Fried, C Perfect Freedom, Perfect Control?’ (2000) 114 Harv Law Rev 606, 628.

40. For extended discussion, see Wu, , above n 22. See, too, Amitai Etzioni ‘Implications of Select New Technologies for Individual Rights and Public Safety’ (2002) 15 Harvard Journal of Law and Technology 257, for the dialectic that starts with ‘liberalizing’ technologies (such as cell phones, the Internet, and strong encryption) and then leads to the responsive development of ‘public protective’ technologies (such as Carnivore (to monitor e-mail traffic) and the Key Logger System and Magic Lantern (to retrieve passwords)).

41. See eg R S Summers Instrumentalism and American Legal Theor (Ithaca: Cornell University Press, 1983).

42. See further Brownsword, R Regulating Human Genetics: New Dilemmas for a New Millennium’ (2004) 12 Med LR 14.

43. See, too, Etzioni, above n 40.

44. Code, above n 4, at 96; and Lessig ‘The Law of the Horse: What Cyberlaw Might Teach’ (1999) 113 Harv LR 501, 541–543.

45. In some contexts, it will be clear enough that a regulatory intervention, albeit by design, is taking place - no one supposes, as Lessig points out, that speed bumps (‘sleeping policemen’) are accidental (ibid at 98). Nor is anyone in any doubt about the regulatory objective (although there might be more debate about the background objectives - road safety or revenue raising - associated with speed cameras).

46. 4734 US 1 (1948).

47. Code, above n 4, at 97.

48. While Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 is not generally perceived in these terms, with hindsight, it actually offers an interesting analogue in private law. There, the architectureof the car-park was unusual forthat time in that it, quite literally, channelled motorists up to the entry point where entry was automated (no parking attendant was present). It would have been perfectly clear to motorists of the 1960s that the design of the car-park was no accident. Although the architecture of the car-park might have troubledcontract lawyers (because it channelled motorists towards acceptance), the Court of Appeal was more concerned about the lack of transparency with regard to the car-park operators' exclusions of liability for negligence. Less convincingly, such terms were also regarded as unusual.

49. To this extent, the fully automatic car would overtake such attempted technological fixes as the so-called alco-lock (which is designed to prevent a car being started up if the device detects any trace of alcohol on the breath of the driver): see Guardian, 5 August 2004, p 7.

50. For a vision of a virtual future, see S Greenfield Tomorrow'sPeople (London: Allen Lane, 2001).

51. Compare Lessig, L The New Chicago School’ (1998) 27 J Legal Studies 661 at 685. In the context of information technology, Bauer and Gaskell (above, n 7, at 383) observe: ‘[T]he rise of the personal computer has increased keyboard writing and has probably decreased the intensity and quality of handwriting. Thus technology structures behaviour [and, I want to say, perceptions], both individually and collectively, bringing both opportunities and threats to human pursuits.’.

52. As Boyle, James puts it in ‘Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors’ (1997) 66 v Cincinnati LR 177 at 205: ‘[T]he attraction of technical solutions is that they apparently elide the question of power- both private and public - in the first place. The technology appears to be ‘just the ways things are’; its origins are concealed, whether those origins lie in state-sponsored scheme or market-structured order, and its effects are obscured because it is hard to imagine the alternative. Above all, technical solutions are less contentious; we think of a legal regime as coercing, and a technological regime as merely shaping—or even actively facilitating - our choices.’.

53. For a hint as to how situational crime prevention might threaten moral responsibility, see R A Duff and S E Marshall ‘Benefits, Burdens and Responsibilities: Some Ethical Dimensions of Situational Crime Prevention’, in von Hirsch et al, above n 35, 17 esp at 20–21. And for concerns that (private) exclusion and profiling by-passes agency, see A von Hirsch and C Shearing ‘Exclusion from Public Space’ in von Hirsch et al, above n 35 at 77.

54. Compare P Cane Responsibility in Law und Moruliry (Oxford: Hart, 2002), one of the recurring themes of which is that, whereas the criminal law paradigm, because it is concerned with stigmatising and punishing wrongdoers, tends to be agent (offender) - orientated, the civil law paradigm, because it is concerned with remedy and repair, tends to be directed more to the protection of victims.

55. H L A Hart The Concept of Law (Oxford: Clarendon Press, 1961).

56. Compare R Dworkin Sovereign Virtue (Cambridge, Mass: Harvard University Press, 2000) at p 446 for the view that it would be a confusion to suppose that’ even the most dramatic shifts in the chance/choice boundary [via genetic engineering] somehow challenge morality itself. While genetic engineering surely weakens the judgments of responsibility that are central to agent morality, it does not eliminate the meaningfulness of act morality.

57. Notice, too, how commentators on situational crime prevention detect a reconfiguration of trust once there is an expectation that targets will take defensive measures. In ‘Situational Crime Prevention, Urban Governance and Trust Relations’, above n 35, 193 at 193–194, Adam Crawford puts the point in the following way: ‘SCP constructs symbolic representations of “orderly environments”: through notions of temtoriality, exclusivity, surveillance, protection and defensiveness. At the same time, SCP inscribes distrust into the physical environment through the modification, design and manipulation of situational attributes. These interventions result in a reconfiguration of what can be trusted, by producing new abstract systems and symbolic tokens.’ See too J Kleinig, above n 35, 37.

58. D J Smith ‘Changing Situations and Changing People’, above n 35, 147 at 170.

59. Smith, above n 57. Smith is making this important point in the context of automatic ticketing systems that are designed to reduce fare evasion by users of public transport.

60. Compare the reservations of Castle, the sceptical philosopher, in B F Skinner Walden Two (Upper Saddle River, NJ: Prentice Hall, 1948, 1976) esp at pp 161 and 227.

61. M Ridley ‘We've Never Had it so Good—and it's All Thanks to Science’ Guardian Life 3 April 2003, p 8.

62. A Touraine ‘The Crisis of “Progress”’ in M Bauer (ed) Resistance to New Technology (Cambridge: Cambridge University Press, 1995) p 45. See, too, Michael Levi and David S Wall ‘Technologies, Security, and Privacy in the Post-9/11 European Information Society’ (2004) 31 Journal of Law and Society 194.

63. I do touch on such prudentid considerations in ‘What the World Needs Now: Techno-Regulation, Human Rights and Human Dignity’ in Roger Brownsword (ed) Global Governance and Human Rights (Oxford: Hart, 2004) p 203.

64. Touraine, above n 62, at 51.

65. Compare R A Duff and S E Marshall, above n 53.

66. For a glimpse of Lessig's own reservations about the ‘dark character’ of the New Chicago School, see ‘the New Chicago School’ (1998) 27 J Legal Studies 661 at 691.

67. While this article was in press, Colin Scott drew my attention to Lee Tien ‘Architectural Regulation and the Evolution of Social Norms’ (2004) 9 International Journal of Communications Law and Policy 1. Tien's reflections on the significance of architectural regulation (or, more broadly, a West Coast approach) resonate very closely with the views expressed in my paper - particularly when they get to the implications for our conceptualisation of law and the preservation of moral agency. So, for example, Tien says (at 7): ‘Architectural regulations are at the extreme perceived more as conditions than as rules to be followed or disobeyed consciously. Unlike ordinary sanction-backed rules, architecture achieves compliance by default rather than through active enforcement. To the extent that legitimacy and public deliberation are integral to our notion of law, the surreptitious enactment and enforcement of norms via architecture should give us pause.’ There is a good deal more that could be said about the intersection between these two papers, but a final footnote is hardly the right place to try to say it. However, for those who are undecided about the choice that I pose between the East Coast and the West Coast, Tien offers further food for thought; and, for those who doubt that this is not so much a real issue as an expression of local idiosyncrasy, perhaps the fact that these two papers - one generated in the UK with a biotechnology background, the other in the USA with an IT background, but each produced entirely independently of one another - express very similar reservations about the technical fix will prompt second thoughts.

* I am particularly grateful to Colin Scott, who encouraged me to give regulatory theorists (and others) a target by raising the ideas in this paper above the parapet and who read and commented on my first draft; I learnt a good deal from conversations with Tony Bottoms, Neil Gunningham, Chris Harding, Richard Ireland, Ryszard Piotrowicz, Paul Street and Mark Taylor; and, last but not least, I am indebted to the Leverhulme Trust, without whose support it would have been a great deal more difficult to have started, let alone completed, work on this paper. Even more so than usual, the standard disclaimers apply.

Code, control, and choice: why East is East and West is West

  • Roger Brownsword (a1)

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