Regulatory Imagination and Justice Research

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• Regulatory Imagination and Justice Research
• or
• Regulatory Theory and Crime Prevention
• Criminological Theory and Better Regulation
• John Braithwaite
• RegNet
• Australian National University
• 1st Annual Lecture Regulation, Security
  Justice Centre,
• University of Manchester Law School

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Conclusions
We live in an era of Regulatory Capitalism
In such a world

• Regulatory theory can help solve crime problems
• Criminological theory can help solve regulatory
  problems
• Big problems like climate change, war, poverty
  and the global financial crisis are both
  regulatory problems and crime problems

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David Levi-Faur and Jacint Jordana show
empirically that we live in an era that they
dubbed Regulatory Capitalism

• Jordana, J and Levi-Faur, D (Eds.) The Politics
  of Regulation Examining Regulatory Institutions
  and Instruments in the Governance Age, Edward
  Elgar, Cheltenham, 2004.
• Levi-Faur, D. The Global Diffusion of Regulatory
  Capitalism, Annals of the American Academy of
  Political and Social Science, 598, 2005, 12-32.
• Levi-Faur, D. Regulatory Capitalism the
  Reassertion of the Public Interests, Policy and
  Society, Vol. 27 (3), 2008, 181-191.

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Here is a history of the growth of regulatory
capitalism in data prepared by David Levi-Faur,
Jacint Jordana and Xavier Fernandez
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A paramilitary police specializing in crime
control globalized from 1829 from Sir Robert
Peels model for London.
Modelling is the most important mechanism of the
globalization of regulation

• It is activated by Model Mongers, activists who
  keep a model on the back burner until a crisis
  allows them to implement it
• Model Missionaries spread the model to less
  enlightened parts of the world
• Model Mercenaries make money spreading the model
• Model Misers prefer copying to innovating to
  avoid model debugging costs
• Model Modernisers copy models from the centre of
  the world system so they look modern, civilized
  or progressive, even if the model does not work
  in their context!

See John Braithwaite and Peter Drahos, Global
Business Regulation, Cambridge University Press,
2000.
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• Regulation is that large subset of governance
  that is about steering the flow of events (as
  opposed to providing and distributing).
• More of governance today is about regulation.
• This is true not only of state governance, but
  also private governance by corporations, industry
  associations, professional associations and
  hybrid private-public governance (eg some Fair
  Trade certification).
• Corporations, like states, govern more through
  contract and audit of compliance.
• Descriptively, Regulatory Capitalism is an era
  with stronger regulation and stronger markets.
  One of the things regulation has achieved is
  freeing up markets.

See John Braithwaite, Regulatory Capitalism How
it Works, Ideas for Making it Work Better, Edward
Elgar, 2008.
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• Whether Regulatory Capitalism makes us more free,
  or less, depends on the details of its design and
  the values it embodies.
• Therefore we need a normative theory of
  regulation.
• For Philip Pettit and John Braithwaite that
  normative theory is republican.
• Republican theory says

The Regulatory Craft should seek to maximise
republican freedom freedom as non-domination
John Braithwaite and Philip Pettit, Not Just
Deserts A Republican Theory of Criminal Justice,
Oxford, 1990. Philip Pettit, Republicanism,
Oxford, 1997. Malcolm Sparrow, The Regulatory
Craft, Brookings, 2000.
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How a combination of regulatory imagination and
criminological imagination can advance some
solutions to selected problems

• The Global Financial Crisis
• Climate Change
• Fiscal Balance by Tackling Tax Cheating
• Health and Aged Care Regulation
• World Peace

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Theories on which Lawrence Sherman has been a key
contributor

• Hot spots
• Defiance theory
• Restorative justice
• Responsive regulation

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Defiance theory and the context of when
deterrence increases violence and crime, and when
it reduces it
J. Braithwaite et al, Peacebuilding Compared
Papua Working Paper
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Assumption
Incompetent or Irrational Actor
Rational Actor
Virtuous Citizen
Learning Citizen
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An Australian Nursing Home Enforcement Pyramid
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Network partner
Network partner
Network partner
Network partner
Network partner
Network partner
Networked regulation plus-plus
Network partner
Network partner
Networked regulation plus
Network partner
Network partner
Networked regulation
Network partner
Network partner
Self-regulation
J. Braithwaite, Responsive Regulation and
Developing Economies, World Development, 34,
2006, 884-898.
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Regulatory Pyramid
Strengths-based Pyramid
From J. Braithwaite, T. Makkai and V.
Braithwaite, Regulating Aged Care, Edward Elgar,
2007.
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Volume 1 - Peacebuilding in Oceania Indonesia,
Australia, New Zealand and Regional Peacekeeping
Bougainville
Aceh
Papua
West Kalimantan
Maluku Ambon
Central Kalimantan
North Maluku Ternate
Solomon Islands
Central Sulawesi Poso
Timor-Leste
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GNR
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GNR gang fighting control pyramid in Timor-Leste
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Laskar Jihad
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Ambon Mosque Arif Pole Erected by Christian
Neighbours
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The enforcement swamping problem and

• Disarming militias
• Corruption
• Tax compliance

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• Ethnic conflict in poor multi-ethnic societies
  mostly starts in rural areas, then spreads to the
  capital.
• So the challenge is rural policing that prevents
  violence before it spreads.
• That requires reversing the global modelling of
  Sir Robert Peels revolution in policing.
• Also required to end illegal logging of tropical
  forests.

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Last year I worked at the camp. There were seven
Malaysian men there, and every one was married to
a young girl - 13 or 14. They are not interested
in the older girls - once they are 18.
Solomon Islander former logger.
T. Herbert, Commercial Sexual Exploitation of
Children in the Solomon Islands, 2007.
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The Global Financial Crisis

• Housing loan defaults concentrated at hot-spots
  of US banking.
• A preventive strategy would have been to threaten
  negative licensing of particular bankers and
  particular banks at those hot-spots.
• Then offer them a restorative justice conference
  to repair the harm and prevent spread of the
  harm.
• How restorative justice might have prevented the
  collapse of Arthur Andersen, Enron and Worldcom
  (HIH and One.tel in Australia) in 2001.

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Conclusions
We live in an era of Regulatory Capitalism
In such a world

• Regulatory theory can help solve crime problems
• Criminological theory can help solve regulatory
  problems
• Big problems like climate change, war, poverty
  and the global financial crisis are both
  regulatory problems and crime problems