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Regulatory Governance and the Challenge of Constitutionalism

  • Colin Scott

The late twentieth century witnessed significant shifts in the institutions and processes of governance in most members states of the OECD, as direct provision (sometimes characterised as welfare state governance) was, to some degree, displaced by the rise of the regulatory state. Changes in the nature of state intervention have been accompanied also by fundamental challenges to traditional conceptions of the centrality of the nation state as regards its dominance of key resources (notably taxation and capacities for coercion) and for the maintenance of the rule of law and democracy, as transnational and non-state power have assumed greater significance. In this paper I assess both narrow and broad versions of the challenge presented to the values of constitutionalism by regulatory governance. The narrow constitutionalist critique locates the problem of regulatory governance with the delegation of governmental power to regulatory agencies. A broader constitutionalist critique looks beyond delegation to other organs of the state, and notes that the de-centring of regulatory governance has increasingly implicated both non-state and supranational governmental bodies in regulatory tasks through implicit and explicit delegation and through the assumption of regulatory powers with little or no state involvement. I suggest that one response to the broad critique is to institutionalise broader modes of control and accountability which are best able to match the governance powers which are targeted.

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Paper provided by European University Institute (EUI), Robert Schuman Centre of Advanced Studies (RSCAS) in its series EUI-RSCAS Working Papers with number 7.

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Date of creation: 15 Feb 2010
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Handle: RePEc:erp:euirsc:p0229
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  1. John Braithwaite, 2008. "Regulatory Capitalism," Books, Edward Elgar, number 12541, March.
  2. Kraakman, Reiner H, 1986. "Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy," Journal of Law, Economics and Organization, Oxford University Press, vol. 2(1), pages 53-104, Spring.
  3. Colin Scott, 2005. "Between the Old and the New: Innovation in the Regulation of Internet Gambling," Chapters, in: Regulatory Innovation, chapter 6 Edward Elgar.
  4. Charles M. Tiebout, 1956. "A Pure Theory of Local Expenditures," Journal of Political Economy, University of Chicago Press, vol. 64, pages 416.
  5. Scott, Colin, 1998. "The proceduralization of telecommunications law," Telecommunications Policy, Elsevier, vol. 22(3), pages 243-254, April.
  6. Colin Scott, 2008. "Regulating Everything," Working Papers 200824, Geary Institute, University College Dublin.
  7. Fabrizio Gilardi, 2008. "Delegation in the Regulatory State," Books, Edward Elgar, number 12818, March.
  8. North, Douglass C. & Weingast, Barry R., 1989. "Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England," The Journal of Economic History, Cambridge University Press, vol. 49(04), pages 803-832, December.
  9. Dermot Hodson & Imelda Maher, 2001. "The Open Method as a New Mode of Governance: The Case of Soft Economic Policy Co-ordination," Journal of Common Market Studies, Wiley Blackwell, vol. 39(4), pages 719-746, November.
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