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Regulatory Imagination and Justice Research
or
Regulatory Theory and Crime Prevention; Criminological Theory and Better Regulation
John BraithwaiteRegNet
Australian National University
1st Annual Lecture: Regulation, Security & Justice Centre,
University of Manchester Law School
Conclusions
Regulatory theory can help solve crime problems
Criminological theory can help solve regulatory problems
Big problems like climate change, war, poverty and the global financial crisis are both regulatory problems and crime problems
In such a world:
We live in an era of Regulatory Capitalism
David Levi-Faur and Jacint Jordana show empirically that we live in an era that they dubbed Regulatory Capitalism
• Jordana, J and Levi-Faur, D (Eds.) The Politics of Regulation: Examining Regulatory Institutions and Instruments in the Governance Age, Edward Elgar, Cheltenham, 2004.
• Levi-Faur, D. The Global Diffusion of Regulatory Capitalism, Annals of the American Academy of Political and Social Science, 598, 2005, 12-32.
• Levi-Faur, D. Regulatory Capitalism & the Reassertion of the Public Interests, Policy and Society, Vol. 27 (3), 2008, 181-191.
Here is a history of the growth of regulatory capitalism in data prepared by David Levi-Faur, Jacint Jordana and Xavier Fernandez
• It is activated by Model Mongers, activists who keep a model on the back burner until a crisis allows them to implement it
• Model Missionaries spread the model to ‘less enlightened’ parts of the world
• Model Mercenaries make money spreading the model
• Model Misers prefer copying to innovating to avoid model debugging costs
• Model Modernisers copy models from the centre of the world system so they look modern, civilized or progressive, even if the model does not work in their context!
A paramilitary police specializing in crime control globalized from 1829 from Sir Robert Peel’s model for London.
Modelling is the most important mechanism of the globalization of regulation
See John Braithwaite and Peter Drahos, Global Business Regulation, Cambridge University Press, 2000.
• Regulation is that large subset of governance that is about steering the flow of events (as opposed to providing and distributing).
• More of governance today is about regulation.
• This is true not only of state governance, but also private governance by corporations, industry associations, professional associations and hybrid private-public governance (eg some Fair Trade certification).
• Corporations, like states, govern more through contract and audit of compliance.
• Descriptively, Regulatory Capitalism is an era with stronger regulation and stronger markets. One of the things regulation has achieved is freeing up markets.
See John Braithwaite, Regulatory Capitalism: How it Works, Ideas for Making it Work Better, Edward Elgar, 2008.
• Whether Regulatory Capitalism makes us more free, or less, depends on the details of its design and the values it embodies.
• Therefore we need a normative theory of regulation.
• For Philip Pettit and John Braithwaite that normative theory is republican.
• Republican theory says:
The ‘Regulatory Craft’ should seek to maximise republican freedom – freedom as non-domination
John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, Oxford, 1990.Philip Pettit, Republicanism, Oxford, 1997.Malcolm Sparrow, The Regulatory Craft, Brookings, 2000.
How a combination of regulatory imagination and criminological imagination can advance some solutions to selected problems:
• The Global Financial Crisis
• Climate Change
• Fiscal Balance by Tackling Tax Cheating
• Health and Aged Care Regulation
• World Peace
Theories on which Lawrence Sherman has been a key contributor:
• Hot spots
• Defiance theory
• Restorative justice
• Responsive regulation
Defiance theory and the context of when deterrence increases violence and crime, and when it reduces it
J. Braithwaite et al, Peacebuilding Compared Papua Working Paper
Incapacitation
Deterrence
Restorative Justice
Capacity development
Incompetent or Irrational Actor
Rational Actor
Virtuous Citizen
Learning Citizen
Assumption
An Australian Nursing Home Enforcement Pyramid
Self-regulation
Networked regulation
Networked
regulation plus
Networked
regulation
plus-plus
Network partner
Network partner
Network partner
Network partner
Network partner
Network partner
Network partner
Network partner
Network partner
Network partner
Network partner
Network partner
J. Braithwaite, Responsive Regulation and Developing Economies, World Development, 34, 2006, 884-898.
Regulatory Pyramid Strengths-based Pyramid
Risk assessment Opportunities assessment
Fear Hope
Prompt response before problem escalates
Wait patiently to support strengths that bubble up
from below
Pushing standards above a floor
Pulling standards through ceiling
Regulatory Pyramid Strengths-based Pyramid
From J. Braithwaite, T. Makkai and V. Braithwaite, Regulating Aged Care, Edward Elgar, 2007.
Volume 1 - Peacebuilding in Oceania: Indonesia, Australia, New Zealand and
Regional Peacekeeping
Solomon Islands
Bougainville
Timor-Leste
North Maluku – TernateCentral Sulawesi – Poso
Central Kalimantan
PapuaWest Kalimantan
Aceh
Maluku – Ambon
GNR
GNR gang fighting control pyramid in
Timor-Leste
Call in military
Firearms
Physical contact
eg push apart gangs
with shields
Rubber bullets and other lesslethal special weapons
Physical presence - arrival with fanfare
Community policing, problem-solving
Laskar Jihad
Ambon Mosque: Arif Pole Erected by Christian Neighbours
The enforcement swamping problem and:
• Disarming militias
• Corruption
• Tax compliance
• Ethnic conflict in poor multi-ethnic societies mostly starts in rural areas, then spreads to the capital.
• So the challenge is rural policing that prevents violence before it spreads.
• That requires reversing the global modelling of Sir Robert Peel’s revolution in policing.
• Also required to end illegal logging of tropical forests.
Last year I worked at the camp. There were seven Malaysian men there, and every one was married to a young girl - 13 or 14. They are not interested in the older girls - once they are 18.
Solomon Islander former logger.
T. Herbert, Commercial Sexual Exploitation of Children in the Solomon Islands, 2007.
The Global Financial Crisis
• Housing loan defaults concentrated at hot-spots of US banking.
• A preventive strategy would have been to threaten negative licensing of particular bankers and particular banks at those hot-spots.
• Then offer them a restorative justice conference to repair the harm and prevent spread of the harm.
• How restorative justice might have prevented the collapse of Arthur Andersen, Enron and Worldcom (HIH and One.tel in Australia) in 2001.
Conclusions
Regulatory theory can help solve crime problems
Criminological theory can help solve regulatory problems
Big problems like climate change, war, poverty and the global financial crisis are both regulatory problems and crime problems
In such a world:
We live in an era of Regulatory Capitalism