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The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict
Author(s) -
Haines Fiona,
Gurney David
Publication year - 2003
Publication title -
law and policy
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.534
H-Index - 45
eISSN - 1467-9930
pISSN - 0265-8240
DOI - 10.1111/j.0265-8240.2003.00154.x
Subject(s) - delegation , regulatory competition , incentive , compliance (psychology) , competition (biology) , law and economics , regulatory focus theory , business , political science , law , public relations , economics , corporate governance , psychology , social psychology , ecology , corporate law , finance , creativity , biology , microeconomics
Regulatory analyses often assume that compliance is desirable, with literature focusing on strategies to encourage “excellence” in adherence to regulatory goals. Yet, it is not unusual for disparate regulatory goals to exist that are based on competing values of what constitutes the “good society.” It is this conflict that forms the substance of this paper. In cases of competing regulatory goals, techniques that encourage exemplary compliance in one area can create incentives to breach regulatory provisions of a competing regime. In such cases, generic regulatory techniques are unable to provide a useful means for resolving regulatory conflict but do allow a political delegation of conflict resolution to the “scientific” strategies of the regulator. In turn, the regulator places responsibility on companies for resolving competing regulatory demands. Successive delegation leads to juridification as well as regulators vying to retain primacy for their regime. This problem is examined through analysis of responsibilities for subcontractor safety under Australian health and safety law and sections of the Australian Trade Practices Act 1974 aimed at protecting competition.