REGULATORY SPACES

AND INTERACTIONS:
AN INTRODUCTION
BETTINA LANGE
Department of Law, Keele University, UK

ABSTRACT

This special issue draws together four contributions to debates about legal regulation.1
They focus on space and interactions as key constituents of regulatory dynamics. The
articles advance analysis of legal regulation also on the basis of new empirical data.
Two contributions discuss novel forms of regulation, such as meta-regulation and the
reform of health and safety regulation in Thailand. Two further articles examine the
challenges faced by traditional state regulation through new tasks of systemic risk
management, such as facilitating law and science interactions and ensuring animal
disease control. The authors share a commitment to a range of fundamental values
informing regulation, such as respect for animal welfare, the protection of the health
and safety of workers, visions of justice which involve redistributive values and a
concern with context-sensitive, proceduralized law which operates with a reflexive
awareness of its own limitations. The first part of this introduction outlines space and
interactions as key themes in the literature on legal regulation while the second part
highlights the contribution of the articles in this area.

WHAT IS LEGAL REGULATION?

D
efining legal regulation involves reference to images of space and
interactions. What are the boundaries of regulating through law and
what are its constituent interrelating elements? Academic research
has constructed legal regulation broadly:

[. . .] we can think of regulation as any process or set of processes by which

norms are established, the behaviour of those subject to the norms monitored
or fed back into the regime, and for which there are mechanisms for holding the
behaviour of regulated actors within the acceptable limits of the regime (whether
by enforcement action or by some other mechanism) (Scott, 2001: 331).

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412 SOCIAL & LEGAL STUDIES 12(4)

Legal regulation has been analysed from various theoretical perspectives,

such as welfare economics (Ogus, 1994), Marxism (Jessop, 2001b: 83–92),
Foucauldian ‘governmentality analysis’ (Burchell, Gordon and Miller, 1991;
Dean, 1999), discourse analysis (Black, 2002b: 163–196) and systems theory
(Lange, 1998: 449–471; Paterson, 2000: 7). It has been studied in many arenas,
such as health and safety, environmental and consumer protection as well as
the supply of utility and financial services, competition policy and taxation
regimes. In addition, there are theoretical justifications for a broad concep-
tion of legal regulation. Regulation can be perceived as a response to risk and
risk has been defined as a pervasive feature of reflexively modernized societies
(Beck, 1986). Attempts to control and spread risk, also through legal regu-
lation, produce new systemic risks which in turn call for more regulation
(Lash and Wynne, 1986: 4; Braithwaite, 2000: 228). From this perspective
regulation extends to a wide range of social, including private sphere,
relationships such as families and employer and employee relationships. How
the boundaries around legal regulation are drawn impinges on what are
described as its constituent, interacting elements. From a postmodernist
perspective, law is considered to operate increasingly through norms. It is no
longer inevitably connected to the powers of a central sovereign state. Its
location is shifting. Law is finding a new space in the decentred locations of
detailed regulatory apparatuses, such as administrative and medical regimes
(Rose and Valverde, 1998: 541, 546; Black, 2001).

LEGAL REGULATION AS STATE-ECONOMY INTERACTIONS

A significant segment of the literature, however, defines legal regulation as

the regulation of economic activities and hence privileges state-economy
interactions in its analysis (see for example Picciotto, 2002: 1; Kagan, 2002:
2). State intervention in the economy can be enabled through legal regulation.
Focusing legal regulation on state-economy interactions provides the concept
with a clear focus and hence may enhance its analytical force (Black, 2002a: 7).
The term ‘state’ can be understood to refer to a sovereign body, endowed
with territorial power and means of force. It operates through but is separ-
ate from the institutions of formal political authority (Dean, 1999: 9). In
the literature on legal regulation economic activity is usually understood as
the organized production, distribution, exchange and consumption of scarce
goods and services, not including economic relationships in the private sphere,
such as labour in the family home or barter exchanges in private markets.2
Excluded from this definition of economy are also the social relationships
which underpin economic ones, such as the reproduction of labour. From a
neo-classical economics perspective markets have been perceived as key to
economic organization and hence alternative forms, such as kinship net-
works, hierarchical allocation and self-sufficiency have received less attention
in the literature on legal regulation (Thompson et al., 1991; Carruthers and
Babb, 2000: 2–4; Jessop, 2001a: 214).
 LANGE: REGULATORY SPACES AND INTERACTIONS 413

Understanding legal regulation as interactions between political and eco-

nomic actors has also been reflected in characterizations of enforcement
styles as ‘responsive’, ‘reflexive’ and ‘co-regulatory’ (Nonet and Selznick,
1978; Ayres and Braithwaite, 1992; Osborne and Gaebler, 1992). State-market
relationships, however, are changing and this is further discussed in this
special issue. Firstly, clear demarcation lines between states and markets are
disappearing through the privatization of states and the domination of
markets by powerful corporate actors (Picciotto, 2001: 337). Regulatory
communities are emerging, consisting of both governmental and non-
governmental actors, in which the latter ‘share in the state’s authority to make
decisions’ (Black, 2002a: 6). It has been argued that, especially in developing
countries, globalization promotes the development of such hybrid state-
private sector entities, with the private moving into the public sector (Drache,
2001: 13). Nation states have been described as increasingly weak and frag-
mented but they have not yet disappeared (Jessop, 1999: 37). Interstate
politics may be simply conducted by different and new means, such as inter-
national networks for the formation of policy (Picciotto, 1996–1997; Cioffi,
2000: 572).
Secondly, novel forms of legal regulation are developing in response to
changing state-market relationships. The regulatory state thesis suggests that
the boundaries of the traditional Keynesian welfare state have been rolled
back through various forms of deregulation. The punitive state, however,
still exercises regulatory controls and deregulation of the welfare state has
involved reregulation (Hood and Scott, 1996; Braithwaite, 2000: 227). A new
regulatory state has emerged which exercises increasing power, not through
regulatory structures associated with public expenditure – dominium type
powers in Daintith’s classification – but through independent regulatory
agencies (Daintith, 1994: 213; Majone, 1994; Majone, 1996; Hood et al.,
2001: 3–4). The activities of these new independent regulatory agencies and
the remains of traditional state activity, such as the initiation of primary
and secondary legislation in central government departments are in turn
controlled through novel infrastructures of regulation, also called ‘meta-
regulation’ (Scott, 2000: 38). They regulate the exercise of public powers, for
instance by requiring compliance with market rationality, expressed through
the principles of efficiency, effectiveness and economy, also in order to ‘lift
burdens on business’ and to promote economic growth through a competi-
tive market model (Pavlich, 2001: 141). Thus some of the literature considers
the nation state as increasingly irrelevant to legal regulation while other
accounts perceive it still as a central element in their analysis. Further dis-
cussion of the role of the nation state in legal regulation matters because
declaring it as unimportant may involve marginalizing political theories of
law (Snyder, 1999: 341). It is also relevant in the light of neo-liberal political
challenges to the legitimacy of the nation state as regulator. Interactions
between states and markets, however, do not occur in a vacuum. They map
out the space of legal regulation.
414 SOCIAL & LEGAL STUDIES 12(4)

SPACE AND LEGAL REGULATION

Space is becoming an increasingly important concept in the analysis of legal

regulation despite the fact that spatial analysis – through the invocation of
scale, projection and symbolization – has also been criticized for distorting
social relations (De Sousa Santos, 1987: 297; Twining, 2000: 234). Different
types of law have been characterized with reference to their spatial location,
such as international, regional or local law. Furthermore, legal pluralism,
which is perceived as a key legal form in globalization, refes to geographical
or metaphorical notions of space in its conception of law. It has been defined
as various ‘legal systems, networks or orders co-existing in the same geo-
graphical space’ or ‘social field’ (Merry, 1988: 870; Twining, 2000: 83). In
addition, law itself becomes involved in the construction of spaces through
which norms and a range of disciplinary practices can act:
. . . by spatialization, we refer to the ways in which legal practices are involved
in the constitution of what we can term ‘governable spaces’ (Rose and Valverde,
1998: 549).

Various meanings of space have been invoked in the literature on legal regu-
lation. First, in a more abstract sense the concepts of ‘regulatory space’ and
culture have highlighted the bounded nature of legal regulation. Regulatory
space is mapped out through exchange and interdependence relationships
between a range of non-state and state organizations, which are linked
through networks and often compete for power. Clear distinctions between
public and private actors are blurred (Hancher and Moran, 1989: 272, 277,
287). In this field ‘informal and formal resources’ and ‘regulatory capacities’
are ‘dispersed’ and ‘fragmented’ (Scott, 2001: 330).
An analysis of space can be underpinned by reference to culture which pro-
duces a degree of cohesion in social processes and thus allows legal regulation
to exist in a space (see, for example, Hawkins, 1984; 2002; Bell, 1985; Mei-
dinger, 1985). Linking an analysis of space and culture also highlights the
social construction of space and hence guards against its reification. Culture
can be understood as a ‘set of shared understandings which makes it possible
for a group of people to act in concert with each other’ (Meidinger, 1987: 359;
referring to Becker and Van Maanen and Barley). It can lay down ‘the rules of
the regulatory game’ (Hancher and Moran, 1989: 3). The boundaries of culture
can coincide with political-geographical boundaries, such as in national or
transnational styles of regulation (Kelman, 1981; Vogel, 1986; 1998; Lange,
1999). Culture can also delimit smaller units of social interaction, such as the
culture of a business or the culture of regulatory communities which tran-
scend the formal boundaries of bureaucratic organizations (Meidinger, 1987:
364). Culture may be criticized as an elusive concept, lacking analytical pre-
cision. What can it really contribute to the analysis of legal regulation? The
contributors to this special issue vary in their answers to this question.
Second, space has been invoked in the literature on legal regulation in
a more geographical sense, especially in discussions of globalization.
 LANGE: REGULATORY SPACES AND INTERACTIONS 415

Globalization, however, cannot be associated with one specific spatial scale,

such as ‘the global’. Instead, it draws on social processes which occur at
various spatial scales and some of these are sub-global (Jessop, 1999: 23).
Hence globalization is characterized by a relativization of scale (Jessop, 1999:
25). Moreover, globalization is transforming a concept of space. Space
extends in globalization through the
intensification of worldwide social relations which link distant localities in such
a way that local happenings are shaped by events occurring many miles away
and vice versa (Giddens, 1990: 64).

Bounded social phenomena such as the nation state or society become less
important and instead interdependencies between less bounded social
phenomena are emphasized (Twining, 2000: 8). Social relations become
‘deterritorialized’ as multi-level governance develops. They increasingly
cross nation state boundaries, as well as language, cultural and ideological
borders (Snyder, 1999: 336; Twining, 2000: 221).
Time-space distantiation as well as time-space compression have been per-
ceived as key characteristics of globalization (Jessop, 1999: 21). In time-space
distantiation social relations are stretched over time and space. They are thus
abstracted from and disembedded from local definitions of time and place
(Tsoukas, 1999: 501). This can increase opportunities for the control of social
relations over longer time spans and across a broader range of localities
(Jessop, 1999: 21). Time-space compression is the intensification of specific
events in real time. It also involves a quicker flow of events over distances
(Jessop, 1999: 22). For instance, information technology and electronic com-
munication have speeded up international financial transactions. Moreover,
production and consumption have been accelerated (Scheuerman, 2001: 91).
In globalization space also becomes a less discrete concept. Time-space com-
pression involves ‘the conquest of space by time’ (Jessop, 1999: 22).
Paying attention to space raises questions for the analysis of legal regu-
lation. What are the relationships between abstract, metaphorical and geo-
graphical understandings of space? When and how does abstract space change
into real geographical locations and what are the detailed practices through
which geographical locations become socially constructed? (Snyder, 1999:
374). How does law govern this process and how is law shaped by different
conceptions of space? Furthermore what legal forms are associated with the
various manifestations of globalization? Globalization has been described
as a complex, ‘multiscalar, multitemporal and multicentric’ phenomenon
which also reflects features of disorganized capitalism (Jessop, 1999: 19).
Moreover, globalization differs in various areas in the world and in different
areas of human activity. In ‘globalized localism’ a local phenomenon is
successfully globalized and this type of globalization is imposed by ‘core
countries’ upon ‘peripheral countries’. ‘Localized globalism’ involves the
adaptation of local social practices to transnational influences (De Sousa
Santos, 1995: 263). In addition, globalization of the natural environment
differs from the globalization of financial markets or political governance.
416 SOCIAL & LEGAL STUDIES 12(4)

There may be no ‘global law’ but only legal regulation specific to these fields
(Held et al., 1999: 25).

NEW CONTRIBUTIONS TO UNDERSTANDING SPACE AND

INTERACTIONS IN LEGAL REGULATION

Fiona Haines’s article in this special issue highlights the importance of space
for understanding the reform of health and safety laws in response to the
Kader Toy Factory fire in Bangkok, Thailand, in May 1993 which killed 188
people and injured 469. She advances debates about globalization and legal
regulation by moving beyond an abstract analysis to a concrete and detailed
account of how globalization affected the process of health and safety reform
in Thailand. She develops the concept of ‘Thai regulatory character’, defined
as interactions between social norms and formal laws. She also differentiates
a more general notion of space from the concept of place which describes the
specifics of local culture. Fiona Haines argues that globalization, on the one
hand, undermined the importance of the Thai nation state in the reform of
its health and safety laws. On the other hand, it also reinforced key charac-
teristics of Thai regulatory character, such as the emphasis on individuals’
self-reliance within the context of systems of patronage, and thus reaffirmed
national sovereignty. Her focus on Thailand allows analysis of state-market
interactions, which go beyond reference to the western, liberal constitutional
state which is usually invoked in the literature on legal regulation.
Bronwen Morgan’s article focuses on a particular aspect of state-market
interactions. It examines economic rationality as a new form of accountability
limiting the exercise of state powers. The empirical focus of her research is a
specific regime of meta-regulation, the National Competition Policy in Aus-
tralia. Her analysis advances understanding of meta-regulation by theorizing
this concept and locating it in the broader literature on the legalization of
politics and the proliferation of non-judicial forms of accountability.
Bronwen Morgan argues that meta-regulation arises at the intersection of two
trends which initially appear to have trajectories in different directions. On
the one hand, politics are increasingly legalized in contemporary governance.
On the other hand, non-judicial mechanisms of accountability are becoming
more important in the regulatory state. In the context of the Australian
National Competition Policy non-judicial accountability takes the form of a
legal requirement that legal rules and public policies must not restrict com-
petition unless this can be justified on the basis of empirical demonstration
that this is necessary in the public interest. Hence, political choices by
government about the distribution of resources in society are restricted and
geared towards reduced state intervention. Examining legal regulation as
state-market interactions, however, does not just raise analytical questions
about the nature of these interactions, but also normative questions. What
degree of state intervention and market ordering should occur in order to
promote effective regulation?
 LANGE: REGULATORY SPACES AND INTERACTIONS 417

David Campbell’s and Robert Lee’s contribution to this special issue

addresses this question through a critique of the UK government’s response
to the outbreak of the foot and mouth epidemic in 2001. They criticize the
fact that the UK government worked with an automatic assumption that
disease control is a public good and hence should be secured through state
intervention. By linking economic analysis and a critical review of detailed
evidence from a number of official inquiries into the foot and mouth epi-
demic, David Campbell and Robert Lee add a critical voice to the welfare
economics literature on legal regulation. They argue that the case for state
intervention also has to consider the possibility of ‘government failure’ and
compare this to the costs of ‘market failure’. They work with a broad con-
ception of ‘government failure’ which allows them to argue that it was state
regulation, here intervention, specifically by the then UK Ministry of Agri-
culture, Fisheries and Food (MAFF) that was the actual cause of the UK foot
and mouth epidemic in 2001. According to David Campbell and Robert Lee,
Coase’s critique of welfare economics shows that the case for state inter-
vention must take into account the actual costs of intervention, those
incurred in the implementation of policies on the ground, rather than costs
based on abstract calculations derived from a theoretically coherent policy.
They argue that the failure to take into account such costs and to obtain ade-
quate information were important reasons for the UK government’s response
which went beyond a stamping out policy and involved the cruel slaughter
of a vast number of animals.
Communication is a further key aspect of legal regulation, including state-
market interactions. From the perspective of systems theory, autopoiesis and
Habermas’s deliberative democracy – communication between social actors
– has been considered as central to regulating through law. For instance,
implementation deficits in legal regulation have been explained through
reference to limits in communication.
John Paterson’s contribution to this special issue inquires into the possi-
bilities of communication between the discourses of law and science in risk
regulation. On the basis of both social science and legal theory literature he
argues that risk regulation issues are often trans-legal and trans-scientific.
Their solutions frequently lie beyond the boundaries of both science and law.
Frequently neither science nor law can provide the answer to the question of
how to regulate risk. Hence communication between science and law is the
key. But how are shifts in argumentation possible from a ‘fact’-based dis-
course of science to the normative discourse of law? John Paterson discusses
Habermas’s theory of communicative action and Teubner’s autopoiesis
approach and their respective versions of proceduralized law as possible
means of providing justifications for shifting from ‘is’ to ‘ought’ in delibera-
tion. He advances debates by arguing that in relation to risk issues the gap
between the discourses of law and science is entrenched and reopens at the
level of background resources in the lifeworld. In contrast to this, Habermas
perceives these background resources as enabling successful communication
and decision-making across discourse boundaries. Hence Paterson supports
418 SOCIAL & LEGAL STUDIES 12(4)

Teubner’s notion of procedural law which perceives more limited oppor-

tunities for communication between law and science, and thus keeps the
tension between them in view.
All of the contributions to this special issue address space and interactions
as key dimensions of regulatory dynamics. They stimulate debate by taking
different perspectives on open questions in the literature on legal regulation.
Firstly, what is the role of the state in legal regulation? Does the focus on
competition in both the supply of ‘public’ services and in the private market
through the pursuit of liberalized trade regimes render the state now irrele-
vant to legal regulation? David Campbell’s and Robert Lee’s account of the
biosecurity regulatory regime in the UK graphically illustrates the deploy-
ment of strong national state powers, even involving the army, co-existing
with a regional free trade regime. The free movement of animals in the Euro-
pean Union internal market contributed, according to the authors, to the
development of the Foot and Mouth epidemic. This in turn generated strong
state intervention, consisting in the culling of a large number of animals.
Bronwen Morgan, in contrast, describes the decline of traditional
command and control regulation through the state, in the case of the
regulation of migration advice and government audit under the National
Competition Policy programme in Australia. Compliance with economic
rationality requires policy and law-makers to systematically question tra-
ditional state regulation. From a different theoretical perspective John Pater-
son’s focus on the discourses of law and science decentres the state. The state
no longer stabilizes normative decisions as the basis for legal regulation, nor
is it the arbiter of substantive policy conflicts. Fiona Haines develops a
complex picture of how globalization affects the role of the Thai state in
health and safety regulation. On the one hand, the implementation of health
and safety standards developed by international NGOs bypassed the Thai
state as regulator. On the other hand, characteristics of economic globaliz-
ation, such as the individual pursuit of self-interest in markets, valorized
certain aspects of Thai regulatory character, such as the emphasis on self-
reliance within systems of patronage.
Secondly, paying attention to space and place in legal regulation raises
questions about the relevance of culture in accounts of legal regulation. It
plays a central role in Fiona Haines’s explanation of health and safety reforms
in Thailand. Her article engages critically with Mary Douglas’s cultural
theory which has been invoked in a number of studies of legal regulation
(Douglas, 1975; Hood, 1996; Hood and Scott, 1996). By emphasizing inter-
actions within the grid and group dimensions, in particular, interactions
between social norms and formal laws and interactions between individuals
and formal laws, Fiona Haines intends to render the group and grid dimen-
sions more dynamic and less essentialist. Bronwen Morgan’s account of the
Australian National Competition Policy is first and foremost a theoretical
development of the concept of meta-regulation. It explains, however, a
cultural shift in Australian regulatory politics facilitated also through pro-
fessional groups, such as economists working for the Australian National
 LANGE: REGULATORY SPACES AND INTERACTIONS 419

Competition Council. The norms, beliefs and values underlying regulatory

decision-making are changing. The collective social welfare language of need,
vulnerability and harm is being marginalized in a new bureaucratic culture of
regulation where legal rules and public policies have to be justified with refer-
ence to the assumptions of public choice approaches to regulation and hence
the more impersonal and disinterested language of market failure. Techno-
cratic regulatory cultures are also being subjected to critical analysis in David
Campbell’s and Robert Lee’s account of the foot and mouth crisis and John
Paterson’s article on law and science interactions in risk regulation. David
Campbell and Robert Lee criticize the regulatory culture, which they see as
associated with the outbreak of the foot and mouth epidemic, as being too
strong on some dimensions of technocracy while being too weak on others.
On the one hand, civil servants in the then MAFF and the Foot and Mouth
Science Group were too insulated from mechanisms of political account-
ability and legal controls. On the other hand, they did not have sufficient
independent expert status given the problematic application of economic
concepts, a lack of basic information about those subject to regulation and
capture by political interests, such as the National Farmers Union. From a
more theoretical perspective John Paterson points to the limits of techno-
cratic expertise in risk regulation. The fact that not all questions which can
be framed in scientific terms can be answered by science and that risk regu-
lation involves reference to future behaviour which is difficult to predict
limits the possibility of a science-based technocratic regulatory culture.
Finally, while reference to culture in legal regulation has allowed us to
broaden analysis of regulatory processes, debates about the role of law have
helped to centre analysis of regulation and to distinguish legal from other
forms of regulation. The contributors to this special issue work with different
concepts of law. Furthermore, some see it as central, others as more marginal
to regulation. Fiona Haines’s account seems to suggest that the boundaries of
the legal field are clearly demarcated by the specific political and economic
contexts in which it is located. Hence she points to the limits of transplant-
ing legal rules from one cultural context to another. John Paterson’s as well
as David Campbell’s and Robert Lee’s articles provide accounts of regulation
that also perceive law as clearly bounded but not necessarily central to regu-
lation. David Campbell and Robert Lee suggest, however, that the UK
government’s emergency intervention in the Foot and Mouth crisis occurred
beyond formal legal doctrine. From a systems theoretical perspective John
Paterson invokes a normatively closed, but cognitively open, reflexive legal
discourse. Here law is inherently unstable and just one among a range of dis-
courses which inform risk regulation. Bronwen Morgan’s article, in contrast,
traces the extension of the boundaries of the legal field into the realm of
politics and the development of new non-judicial, legal accountability
mechanisms, such as institutionalized economic rationality.
420 SOCIAL & LEGAL STUDIES 12(4)

CONCLUSION

This special issue develops debates about space and interactions in legal regu-
lation, key concepts in contemporary analyses of legal regulation. Images of
space are a valuable means of understanding the reach and thus the boundaries
of legal regulation. Globalization transforms conventional understandings of
space and time-space relationships through time-space distantiation and
compression, and draws attention to the relativization of scale in the analy-
sis of social phenomena. It is a multi-faceted process which varies according
to the particular area of activity which is being globalized, such as economy
or political governance. It is experienced differently by ‘core’ and ‘periphery’
countries. It gives rise to a variety of legal forms which cannot be captured
through the general term ‘global law’. One way to understand the impact of
globalization on legal regulation involves a move from abstract discussions
of space to a detailed analysis of place, for instance through the concept of
‘regulatory character’, which tries to capture local cultural ordering as it is
subject to national and global forces.
Space and place in legal regulation are rendered meaningful through the
interactions they engender. State-market interactions have been a key theme
in the literature on legal regulation, much of which has focused on the control
of economic activities. Increasingly, however, clear demarcation lines
between states and markets are disappearing. An analysis of meta-regulation
enables us to understand how the imposition of the competitive ethos of
market dynamics can restrict the exercise of public powers. The account of
the foot and mouth crisis, however, suggests that the nation state can still be
central to some regulatory regimes. Various theoretical perspectives, such as
a Coasian critique of welfare economics and systems theoretical approaches,
however, point to the limitations of perceiving legal regulation in this way.

NOTES

I would like to thank the internal editorial team and the SLS external referees for com-
ments on a previous draft of the introduction.

1. The contributions to this special issue were first presented in the ‘Regulation
Stream’ of the UK Socio-Legal Studies Association Conference 2002 at
Aberystwyth University, UK.
2. Such as local exchange trading schemes (LETS). These are community barter
systems through which skills or services are exchanged without money.

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