Design for Regulation

Abstract

Design has long been employed for regulatory purposes: by ancient civilisations (such as the ancient Egyptian practice of filling in of burial shafts to discourage looting) through to contemporary communities (such as the use by digital media providers of ‘digital rights management’ technology to prevent the unauthorised copying of digital data). But identifying what counts as a ‘regulatory’ purpose, however, is not entirely straightforward, largely due to the notorious lack of clarity concerning the meaning of the term ‘regulation’. Within regulatory studies literature, the use of design for regulatory purposes has not been the subject of extensive and comprehensive analysis, although particular kinds of design technologies have been the focus of considerable scholarly attention. Nevertheless, two important themes can be identified within regulatory scholarship that may be of considerable assistance in interrogating contemporary debates concerning design for regulation: first, analysis of the tools or instruments that may be employed to implement regulatory policy goals, and secondly, debates concerning the legitimacy of regulation in particular contexts, or the legitimacy of particular forms or facets of the regulatory enterprise. Both these themes will be explored in this paper through a discussion of the challenges associated with the effectiveness of design-based approaches to regulation and in the course of examining some of the controversies that have surrounded its use, with a particular focus on the implications of design for various dimensions of responsibility.

In so doing, I will make three arguments. First, I will argue that design can be usefully understood as an instrument for implementing regulatory goals. Secondly, I will suggest that a regulatory perspective provides an illuminating lens for critically examining the intentional use of design to promote specific social outcomes by showing how such a perspective casts considerable light on their implications for political, moral and professional accountability and responsibility. Thirdly, I will suggest that, because design can be employed for regulatory purposes (particularly in the case of harm-mitigation technologies) without any need for external behavioural change on the part of human actors, Julia Black’s definition of regulation as ‘a process involving the sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly defined outcome or outcomes’ should be refined to enable all design-based instruments and techniques to fall within the sphere of regulatory inquiry, rather than being confined only to those design-based approaches that intentionally seek to alter the behaviour of others.

Keywords: regulatory instruments, architecture, code as control, accountability, responsibility, nudge

JEL Classification: K20, I10