Designing Effective Regulation: A Positive Theory

Abstract

This paper is the second of two parts of a general theory of regulation. An effective regulatory system, whether created by a public legislative body or by private charter, must be coherent if it is to be successful. Coherence is a ‘property’ of well-designed regulatory systems. We suggest that differing degrees of regulatory success depends on coherent regulation and that the major cause of regulatory failure, ranging from weak to catastrophic, is from incoherence between one or more of a variety of components and layers of a regulatory system. The two main dimensions of a regulatory system are the normative and the positive. A successful, coherent regulatory system is a system that operates effectively within itself, has its own structure of centres and linkages, its own drivers, and checks and balances. Given the complexity of the issue, the theory is divided into two parts: normative and positive.

In the first article, we demonstrate that an effective regulatory system requires coherent normative policy foundations, a coherent positive legal architecture, and that the normative must be correctly translated into the positive legal architecture to create of a successful regulatory system.

In the second article we examine the translation of the normative policy choices contained in the regulatory approach into positive law. The positive legal dimension of a regulatory system is composed of several ‘components’- each serving a specific legal function. These components, in turn, form the structural, substantive and operational aspects of a regulatory system. The design of the legal architecture must reflect the normative choices discussed in article I. These choices, in turn, influence the structural, substantive and operational composition of a regulatory system. Furthermore, in order for a regulatory system to function effectively, there must be a coherent relationship between each of the components.

Keywords: Regulation, Regulatory Theory, Legal Theory, Policy, Normative Policy, Framing, Law and Society

JEL Classification: K2, I18, G18, H4, K23, L5