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