Book contents
- The Cambridge Handbook of Compliance
- The Cambridge Handbook of Compliance
- Copyright page
- Contents
- Figures
- Tables
- Contributors
- 1 Introduction: Compliance as the Interaction between Rules and Behavior
- Part I Compliance Concepts and Approaches
- 2 Compliance as Costs and Benefits
- 3 The Professionalization of Compliance
- 4 From Responsive Regulation to Ecological Compliance: Meta-regulation and the Existential Challenge of Corporate Compliance
- 5 Behavioral Ethics as Compliance
- 6 Constructing the Content and Meaning of Law and Compliance
- 7 Compliance as Operations Management
- 8 Compliance and Contestation
- 9 Compliance as Management
- 10 Compliance as Liability Risk Management
- 11 Criminalized Compliance
- 12 Supply Chain Compliance
- 13 Regulatory Compliance in a Global Perspective: Developing Countries, Emerging Markets and the Role of International Development Institutions
- Part II Deterrence and Incapacitation
- Part III Incentives
- Part IV Legitimacy and Social Norms
- Part V Capacity and Opportunity
- Part VI Compliance and Cognition
- Part VII Management and Organizational Processes
- Part VIII Measuring and Evaluating Compliance
- Part IX Analysis of Particular Fields
- References
8 - Compliance and Contestation
from Part I - Compliance Concepts and Approaches
Published online by Cambridge University Press: 07 May 2021
By
Book contents
- The Cambridge Handbook of Compliance
- The Cambridge Handbook of Compliance
- Copyright page
- Contents
- Figures
- Tables
- Contributors
- 1 Introduction: Compliance as the Interaction between Rules and Behavior
- Part I Compliance Concepts and Approaches
- 2 Compliance as Costs and Benefits
- 3 The Professionalization of Compliance
- 4 From Responsive Regulation to Ecological Compliance: Meta-regulation and the Existential Challenge of Corporate Compliance
- 5 Behavioral Ethics as Compliance
- 6 Constructing the Content and Meaning of Law and Compliance
- 7 Compliance as Operations Management
- 8 Compliance and Contestation
- 9 Compliance as Management
- 10 Compliance as Liability Risk Management
- 11 Criminalized Compliance
- 12 Supply Chain Compliance
- 13 Regulatory Compliance in a Global Perspective: Developing Countries, Emerging Markets and the Role of International Development Institutions
- Part II Deterrence and Incapacitation
- Part III Incentives
- Part IV Legitimacy and Social Norms
- Part V Capacity and Opportunity
- Part VI Compliance and Cognition
- Part VII Management and Organizational Processes
- Part VIII Measuring and Evaluating Compliance
- Part IX Analysis of Particular Fields
- References
Summary
Abstract: The study of compliance is enriched when it is analysed as part of a contested landscape over the rules governing business conduct. This analysis requires going beyond the assumed connection between compliance and specific regulatory obligations, authorised actors or legal rules to interrogate its entanglement with multiple economic, social and political goals. The contours of this entanglement are often shaped by the tension between and within economic and social goals, tension that can be resolved either by supporting or challenging the status quo. Governments, and state authorities more broadly, bear primary responsibility for the management of the tension between economic and social demands. By modulating compliance obligations, these authorities can achieve temporary resolution of this tension, modulation that often, but not always, retains existing power relations. The chapter then focuses on which actors can challenge the status quo governing business behaviour by authoritatively calling attention to that behaviour as either compliant or non-compliant with legal obligations. Finally, the chapter explores the phenomenon of compliance independent from any connection to hard law, state-based regulatory regimes or courts and instances where acceptable behaviour, or a state of compliance, is not determined by regulators, laws or courts. Being able to define compliance independently from governments or law provides an alternative means to challenge the status quo governing business obligations. Here the chapter looks to international efforts to hold multinational businesses accountable for the harm they cause across borders. Efforts by local communities to demand that business meet social and not just legal expectations, namely that they comply with a social licence, provide a second example of compliance expectations beyond the law. Ultimately compliance, unmoored from a specific regulatory regime, actor or type of rule, becomes part of a fluid contested political landscape aimed at determining the rules governing business and commerce rather than a technocratic and restricted policy dilemma.
- Type
- Chapter
- Information
- The Cambridge Handbook of Compliance , pp. 93 - 103Publisher: Cambridge University PressPrint publication year: 2021
References
Aubert, Wilhelm. 1952. ‘White Collar Crime and Social Structure’. American Journal of Sociology 58: 263–71.CrossRefGoogle Scholar
Ayres, Ian, and Braithwaite, John. 1992. Responsive Regulation: Transcending the Deregulation Debate. New York: Oxford University Press.Google Scholar
Balaton-Chrimes, Samantha, and Haines, Fiona. 2016. ‘Redress and Corporate Human Rights Harms: An Analysis of New Governance and the POSCO Odisha Project’. Globalizations 1–15. https://doi.org/10.1080/14747731.2016.1223958.Google Scholar
Balaton-Chrimes, Samantha, and Macdonald, Kate. 2015. ‘Wilmar’. Corporate Accountability Research. http://corporateaccountabilityresearch.net/njm-report-viii-wilmar.Google Scholar
Boutilier, Robert G., and Thomson, Ian. 2011. ‘Modelling and Measuring the Social License to Operate: Fruits of a Dialogue between Theory and Practice’. https://socialicense.com/publications/Modelling_and_Measuring_the_SLO.pdf.Google Scholar
Braithwaite, John. 2008. Regulatory Capitalism: How It Works, Ideas for Making It Work Better. Cheltenham, UK: Edward Elgar.Google Scholar
Braithwaite, Valerie. 2009. Defiance in Taxation and Governance: Resisting and Dismissing Authority in a Democracy. Cheltenham, UK: Edward Elgar.CrossRefGoogle Scholar
Braithwaite, John, Makkai, Toni and Braithwaite, Valerie A.. 2007. Regulating Aged Care: Ritualism and the New Pyramid. Cheltenham, UK: Edward Elgar Publishing.Google Scholar
Browne, Jude. 2020. ‘The Regulatory Gift: Politics, Regulation and Governance’. Regulation and Governance 14 (2): 203–218. https://doi.org/10.1111/rego.12194.Google Scholar
Carson, W. G. 1974. ‘Symbolic and Instrumental Dimensions of Early Factory Legislation: A Case Study in the Social Origins of Criminal Law’. In Crime, Criminology and Public Policy: Essays in Honour of Sir Leon Radnowicz, edited by Hood, Roger, 107–38. London: Heinemann.Google Scholar
Chen, Ronald, and Hanson, Jon. 2004. ‘The Illusion of Law: The Legitimating Scripts of Modern Policy and Corporate Law’. Michigan Law Review 103 (1): 1–149. https://repository.law.umich.edu/mlr/vol103/iss1/1/.Google Scholar
Coglianese, Cary. 2003. ‘Management-Based Regulation: Prescribing Private Management to Achieve Public Goals’. Law and Society Review 37 (4): 691–730. https://doi.org/10.1046/j.0023–9216.2003.03703001.x.Google Scholar
Cummings, Scott L. 2007. ‘Law in the Labor Movement’s Challenge to Wal-Mart: A Case Study of the Inglewood Site Fight. California Law Review 95 (5): 1927–98. https://doi.org/10.2307/20439128.Google Scholar
Curran, Giorel. 2017. ‘Social Licence, Corporate Social Responsibility and Coal Seam Gas: Framing the New Political Dynamics of Contestation’. Energy Policy 101 (February): 427–35. https://doi.org/10.1016/j.enpol.2016.10.042.Google Scholar
de Búrca, Gráinne, Keohane, Robert O. and Sabel, Charles F.. 2013. ‘New Modes of Pluralist Global Governance’. New York University Journal of International Law and Politics 45: 723–86. www.cambridge.org/core/journals/british-journal-of-political-science/article/global-experimentalist-governance/58CA5F5F83C954A22B2465FC3BE52A10.Google Scholar
Edelman, Lauren B., and Talesh, Shauhin A.. 2011. ‘To Comply or Not to Comply – That Isn’t the Question: How Organizations Construct the Meaning of Compliance’. In Explaining Compliance: Business Responses to Regulation, edited by Parker, Christine and Nielsen, Vibeke Lehmann, 103–22. Cheltenham, UK: Edward Elgar.Google Scholar
Engstrom, David Freeman. 2012. ‘Harnessing the Private Attorney General: Evidence from Qui Tam Litigation’. Columbia Law Review 112 (6): 1244–1325 https://columbialawreview.org/content/private-enforcements-pathways-lessons-from-qui-tam-litigation/.Google Scholar
Gunningham, Neil, and Grabosky, Peter. 1998. Smart Regulation: Designing Environmental Policy. Oxford: Clarendon Press.Google Scholar
Gunningham, Neil, Kagan, Robert A. and Thornton, Dorothy. 2004. ‘Social License and Environmental Protection: Why Businesses Go beyond Compliance’. Law & Social Inquiry 29 (2): 307–41. https://doi.org/10.1111/j.1747–4469.2004.tb00338.x.Google Scholar
Haines, Fiona. 1997. Corporate Regulation: Beyond ‘Punish or Persuade’. Oxford Socio-Legal Studies Series on Regulation. Oxford: Clarendon Press.Google Scholar
Haines, Fiona. 2011. Paradox of Regulation: What Regulation Can Achieve and What It Cannot. Cheltenham, UK: Edward Elgar.Google Scholar
Haines, Fiona, and Gurney, David. 2003. ‘The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict’. Law & Policy 25 (4): 353–80. https://doi.org/10.1111/j.0265–8240.2003.00154.x.Google Scholar
Haines, Fiona, and Macdonald, Kate. 2019. ‘Nonjudicial Business Regulation and Community Access to Remedy’. Regulation & Governance online early. https://doi.org/10.1111/rego.12279.Google Scholar
Haines, Fiona, and Parker, Christine. 2018. ‘Moving towards Ecological Regulation: The Role of Criminalisation’. In Criminology and the Anthropocene, edited by Holley, Cameron and Shearing, Clifford, 81–108. Criminology at the Edge. Abingdon, UK: Routledge.Google Scholar
Haines, Fiona, and Sutton, Adam. 2003. ‘The Engineers Dilemma: A Sociological Perspective on the Juridification of Regulation’. Crime, Law & Social Change 39 (1): 1–22. https://doi.org/10.1023/A:1022499020874.CrossRefGoogle Scholar
Heimer, Carol A. 2008. ‘Thinking About How to Avoid Thought: Deep Norms, Shallow Rules, and the Structure of Attention’. Regulation and Governance 2 (1): 30–47. https://doi.org/10.1111/j.1748–5991.2007.00026.x.Google Scholar
Holland, Alisha C. 2015. ‘The Distributive Politics of Enforcement’. American Journal of Political Science 59 (2): 357–71. https://doi.org/10.1111/ajps.12125.Google Scholar
Holland, Alisha C. 2017. Forbearance as Redistribution: The Politics of Informal Welfare in Latin America. Cambridge: Cambridge University Press. https://doi.org/10.1017/9781316795613.Google Scholar
Kagan, Robert A., Gunningham, Neil and Thornton, Dorothy. 2003. ‘Explaining Corporate Environmental Performance: How Does Regulation Matter?’ Law and Society Review 37 (1): 51–90. https://doi.org/10.1111/1540–5893.3701002.Google Scholar
Macdonald, Kate, Marshall, Shelley and Balaton-Chrimes, Samantha. 2017. ‘Demanding Rights in Company-Community Resource Extraction Conflicts: Examining the Cases of Vedanta and POSCO in Odisha, India’. In Demanding Justice in the Global South: Claiming Rights, edited by Grugel, Jean, Singh, Jewellord Nem, Fontana, Lorenza, and Uhlin, Anders, 43–67. Development, Justice and Citizenship. Cham: Springer International. https://doi.org/10.1007/978–3-319–38821-2_3.CrossRefGoogle Scholar
Mayes, Robyn. 2015. ‘A Social Licence to Operate: Corporate Social Responsibility, Local Communities and the Constitution of Global Production Networks’. Global Networks 15 (s1): S109–28. https://doi.org/10.1111/glob.12090.Google Scholar
McCann, Michael, Haltom, William and Fisher, Shauna. 2013. ‘Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for Health Risks in the United States’. Law & Social Inquiry 38 (2): 288–321. https://doi.org/10.1111/j.1747–4469.2011.01270.x.Google Scholar
Moffat, Kieren, and Zhang, Airong. 2014. ‘The Paths to Social Licence to Operate: An Integrative Model Explaining Community Acceptance of Mining’. Resources Policy 39 (March): 61–70. https://doi.org/10.1016/j.resourpol.2013.11.003.Google Scholar
Parsons, Richard, Lacey, Justine and Moffat, Kieren. 2014. ‘Maintaining Legitimacy of a Contested Practice: How the Minerals Industry Understands Its “Social Licence to Operate”’. Resources Policy 41 (September): 83–90. https://doi.org/10.1016/j.resourpol.2014.04.002.Google Scholar
Reichman, Nancy. 1998. ‘Moving Backstage: Uncovering the Role of Compliance Practices in Shaping Regulatory Policies’. In A Reader on Regulation, edited by Baldwin, Robert, Scott, Colin, and Hood, Christopher, 325–46. Oxford: Oxford University Press.Google Scholar
Richman, Daniel C., and Stuntz, William J.. 2005. ‘Al Capone’s Revenge: An Essay on the Political Economy of Pretextual Prosecution Essay’. Columbia Law Review 105 (2): 583–640.Google Scholar
Ruggie, John. 2014. ‘A UN Business and Human Rights Treaty?’ Harvard Kennedy School. www.business-humanrights.org/sites/default/files/media/documents/ruggie-on-un-business-human-rights-treaty-jan-2014.pdf.Google Scholar
Seibert-Fohr, Anja. 2018. ‘Transnational Labour Litigation: The Ups and Downs Under the Alien Tort Statute’. In Labour Standards in International Economic Law, edited by Gött, Henner, 341–54. Cham: Springer International. https://doi.org/10.1007/978–3-319–69447-4_16.Google Scholar
Silbey, Susan S., and Bittner, Egon. 1982. ‘The Availability of Law’. Law & Policy Quarterly 4 (4): 399–434. https://doi.org/10.1111/j.1467–9930.1982.tb00284.x.Google Scholar
Simon, William H. 2004. ‘Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism’. William & Mary Law Review 46: 127–212.Google Scholar
Welty, Jeff. 2007. ‘Foreword: Animal Law: Thinking about the Future’. Law and Contemporary Problems 70 (1): 1–8 https://scholarship.law.duke.edu/lcp/vol70/iss1/1.Google Scholar