Regulation

Direct government regulation

Regulation is a fundamental technique or tool of legal governance. Although citizens may not always be aware of their presence, among other things regulations govern the price and standards of a wide variety of goods and services they consume, as well as the quality of water they drink and the air they breathe.

There are numerous definitions of regulation, but a good general one is offered by Michael Reagan, who defines it as ‘a process or activity in which government requires or proscribes certain activities or behaviour on the part of individuals and institutions, mostly private but sometimes public, and does so through a continuing administrative process, generally through specially designated regulatory agencies’ (Reagan 1987). Thus, in this view, regulation is a prescription by the government which must be complied with by the intended targets; failure to do so usually involves a penalty, sometimes financial but also often involving incarceration and imprisonment.

This type of instrument is often referred to as ‘command and control’ regulation since it typically involves the government issuing a ‘command’ to some target group in order to ‘control’ their behaviour. ‘Control’ also sometimes refers to the need for governments to monitor and enforce target group activity in order for a ‘command’ to be effective.

This type of regulation is very common in both social and economic spheres in order to encourage ‘virtues’ and discourage ‘vices’, however those are defined at the time. Thus criminal law, for example, is a kind of regulatory activity, as are common laws and civil codes, which all countries have and which states develop and implement, usually relatively non-controversially (May 2002; Cismaru and Lavack 2007). Although much less significant in terms of the day-to-day lives of many citizens, much more attention is paid in the policy tools literature to economic regulation which affects aspects of established markets for goods and service production, and is often resisted by target companies and industries if they feel it undermines their competitive position either domestically or internationally (Baldwin and Cave 1999; Crew and Parker 2006).

It is sometimes difficult for governments to ‘command and control’ their targets if these targets resist regulatory efforts (Scholz 1991) or if governments do not have the capacity or legitimacy required to enforce their orders. As a result of these difficulties other types of regulation exist in which rules are more vague and the threat of penalties may be, at best, remote. These different types of regulation are discussed below.

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