Responsive Regulation and the Limits of Regulatory Intervention

By Oren Perez, Faculty of Law, Bar Ilan University, Israel

Responsive regulation, reflexive law and self-regulation emerged as a response to three central challenges facing the modern regulatory project: (1) designing regulatory policy in a social environment of multiple causes ; (2) the radical uncertainty involved in planned intervention in a differential and complex society, which is not susceptible to linear calculations; and (3) recognition that any regulatory intervention must also respect the inner dynamic of the regulated systems, given the potential adverse effects of external intrusion on systems’ internal structure. These three regulatory forms are based on a common recognition of the limits of state regulation, and on a mutual exploration of circumlocutory forms of regulatory intervention. The basic pre-commitments underlying these alternative regulatory approaches generate, however, a paradox, which may undermine their pragmatic vision. Despite their apparent teleological modesty these models are subject to the same epistemological barriers that underlie more conventional forms of regulation (command & control, economic regulation). Indeed, close inspection reveals that none of these models provide a clear solution to the unique epistemological challenges, which are facing its actual application. The paper will explicate this argument and will examine whether, if at all, this problem has rational solution.