and Legal Aspects of Penality

Regulatory and Legal Aspects of Penality

MARKUS D. DUBBER

The distinction between law and regulation has proved elusive. As “regulatory studies” has come into its own as a field of inquiry to parallel that of “legal studies” or just plain “law,” pursued by “regulationists” rather than jurisprudes (or just plain lawyers), the question occasionally arises not just what regulation is, but also how regulation differs from law. Naturally, one approach is to claim one concept as subordinate to the other, so that either all regulation is law or that all law is regulation or, to put it differently, that regulation is simply one form of law or vice versa. Jurisprudes tend to be less anxious about the relationship of their subject to regulation than their regulationist colleagues, perhaps owing to the considerably longer history of inquiries into law. Regulationists not only tend to be more concerned about the distinction of their subject from law but also—and this isn’t any more surprising—are more likely to consider law a subspecies of regulation than the other way around. Not only is regulation distinct from law; it is superior to it. The distinction between regulation and law then quickly turns to an inquiry into the place of law within the larger regulatory framework and the discovery that law is not only part of some broader regulatory scheme but also a considerably smaller part than one might have thought, given the attention lavished on law over the past millennia.

Regulationists spend a good deal of time trying to get a handle on their subject; of course, jurisprudes, too, have been known to ponder the nature of law. There is a refreshing variety of definitions of regulation, ranging from, for instance, “improving the efficiency of the economy by correcting specific forms of market failure such as monopoly, imperfect information, and negative externalities,”¹ at the narrower end of the spectrum, to “the intentional activity of attempting to control, order or influence the behavior of others,”² or, broader still, “influencing the flow of events,”³ or, somewhere in between, “sustained and focused control exercised by a public agency over activities that are socially valued.”⁴

It would be futile, not to mention tedious, to recite the myriad definitions of regulation that have been proposed.⁵ At the same time, it would be presumptuous to join the debate about what regulation is or is not, or ought or ought not to be. As a non-regulationist, I am not concerned with carving out a disciplinary niche or creating a scholarly identity, or with setting a regulationist research agenda. As a lawyer, I am interested in the definition of regulation primarily insofar as it is thought to relate in some way to the definition of law. Not that lawyers are only interested in law, and regulationists in regulation. To the contrary, I suspect that the definition of regulation and the definition of law are intimately related, as two aspects of a single inquiry. That single inquiry is the inquiry into the nature and limits of (state) power.

I regard the distinction between regulation and law as a fairly recent—and unfortunately largely ahistorical—manifestation of a broader distinction between two modes of governance, police and law, the roots of which can be traced back to the origins of the conceptualization of governance in ancient Greece in terms of economic heteronomy within the private sphere of the household and political autonomy within the public sphere of the agora. The modern concept of law is the manifestation of the Enlightenment’s discovery of the autonomous person as the moral subject-object in the political sphere. As such, the modern concept of law was defined in explicit contradistinction to the concept of police, which some two centuries before had emerged as the scientized and bureaucratized and in this sense modernized form of economic household governance of the princely state.⁶

Thinking about what regulation is therefore also means thinking about what law is. At the same time, thinking ahistorically and afunctionally about regulation is no more appropriate than thinking ahistorically and afunctionally about law. It occasionally appears, even in the regulation literature, as though regulation were an artificial and therefore flexible concept, in contrast to law, which has some definite meaning, or essence, that could be discovered with diligence and some luck. Instead, I prefer to think about law as a concept that not only is no less historically contingent than is regulation, but also is contingent in precisely the same way for the simple reason that law without regulation makes no more sense than does regulation without law. This point becomes clear as soon as one recognizes regulation as a recent attempt to capture police as a basic mode of governance. For law was defined against police, with not only far-reaching theoretical implications but with very palpable effects in political history, given that the modern concept of law forms a crucial part of the Enlightenment’s comprehensive critique of traditional alegitimate practices and institutions.

There is an uninteresting sense, then, in which “regulation” is more of a label than is “law,” insofar as regulation can be seen as the label for police, which is the proper counterpart, historically and conceptually, for law, as the central modes of governance that were defined, and have remained, in tension with one another. A recent thoughtful contributor to the regulation definition debate, Julia Black, called on regulationists to focus on the question of which concept “lies underneath” the regulation label.⁷ That concept is police. Police, in turn, can be seen as a historically contingent label for a yet more basic mode of governance with yet more distant (and, presumably, therefore deeper) roots, household governance, or more fundamental still, heteronomy. Likewise, law is but a recent label for political governance in the public forum (literally) or, in Athens, the agora, which was based on self-government, or autonomy, of equal subject-objects.

Exploring the contrast between regulation and law therefore is useful from the perspective of legal studies, and not merely for the regulationist’s purpose of defining her subject matter, because it places inquiries into law within a new (and, I think, the appropriate, or at least a fruitful) context, theoretically and historically. Regulationists are quite right that the study of law ought not to be pursued (exclusively) in isolation from other modes of governance, though they would hardly be the first to make this point. Regulation studies might benefit from an exploration of the deeper distinction between regulation and law not merely, and not even primarily, by helping to define its disciplinary realm but more importantly by illuminating the very context that regulationists find lacking in the study of law. For all its talk of interdisciplinarity, glo-balism, and the general breadth and flexibility of its methods, subjects, and objectives, regulation studies has yet to develop a compelling account either of its place within the theory of state power in particular, never mind of power in general, or of its place within the history, or if you prefer the genealogy, of (state) government. Too much attention has been paid to efforts to distinguish the regulationist enterprise from the “traditional” inquiry into law and legality, at the expense of carving out with any precision the ideas and practices that “lie underneath,” theoretically and historically, of regulation, however defined. A conceptual-historical exploration of the distinction between police and law may help to supply this missing foundation and context.

Having reframed and deepened the distinction between regulation and law as that between police and law as manifestations of the foundational distinction between familial heteronomy and political autonomy, it might be helpful to explore the distinction as it plays out in the context of the state’s penal power. Punishment, or the penal process more generally, recommends itself as a locus for investigating the distinction between regulation/police and law for several reasons. Criminal law is often cited as paradigmatic law in the regulation literature for its supposed emphasis on rules and a hierarchical “command-and-control” structure; in fact, some influential accounts of regulation exclude the penal process from the realm of regulation altogether (at least insofar as crimes do not count as “activities that are socially valued,”⁸ and their disposition cannot be redirected toward goals such as building community and enriching democracy).⁹ At the same time, the power to punish is said to derive from the state’s power to police—that is, to maintain and maximize the public welfare in all of its aspects.¹⁰ Criminal law itself recognizes a host of so-called regulatory (or police) offenses and uneasily accommodates regulatory “measures” aimed at human dangers, while theoretical writings about criminal law traditionally have treated criminal law doctrine as applied moral theory, without sufficient regard to the political nature of punishment as an exercise of state power, to the point that criminal law’s supposed moral system obscured its identity as a system of law.

Regulation and Law

A quick look at some of the distinctions between regulation and law that the regulatory literature has drawn or, more often, implied suggests confusion not only about the concept of regulation but also about the concept of law. Law appears in the regulatory literature not only, and not even primarily, as the explicit other against which regulation defines itself. More commonly, law simply appears in passing, as glimpses of legality in attempts to capture if not the nature of regulation, then the distinction among types of regulation.

One distinction that recurs frequently in discussions of the distinction between regulation and law is that between private and public, or rather between “private law” and “public regulation.” Little time is spent on the vexing question of the distinction between private and public in the abstract, presumably because regulationists are no more eager to appear mired in formalist orthodoxy than their jurisprudential colleagues. The private/public distinction, after all, has been the subject first of criticism and then of sustained ridicule for the better part of a century, beginning with the American Legal Realists, whose ideas, or more precisely whose scathing critiques, have shaped American jurisprudential thought since the early twentieth century, somehow managing to avoid the label of orthodoxy they successfully, and permanently, pinned on their jurisprudential predecessors. The very attempt to draw the distinction has drawn charges of reactionary antidemocratic self-interest.¹¹ Given the progressive, forward-thinking, if not outright communitarian outlook common among regulationists, it is perhaps not surprising that one is hard pressed to find an endorsement of the private/public distinction in the regulatory literature. If anything, regulatory scholarship appears eager to transcend the distinction, and at least some regulationist projects explicitly highlight the public aspects of apparently private law, most notably in the provocative work of Hugh Collins on regulatory aspects of contract law,¹² which itself spawned an intriguing broader project of regarding other bodies of legal doctrine from a regulatory perspective.¹³

But if the distinction between public and private is, if not outright devious, at least not particularly helpful, provided it can be drawn at all, then it can hardly serve as the basis for distinguishing law from regulation. Obviously the difficulties inherent in the public/private distinction in general cannot be evaded simply by contrasting “private law” with “public regulation.” The idea seems to be that there is something “private” about law, rather than that regulation is to be contrasted with “private law” as opposed to with “public law.” But the every existence of a category of “public law” is inconsistent with this attempt at differentiation between law and regulation in general. And yet the image of “law” in the regulatory literature often is one of private law, and the law of contract in particular, which appears to be regarded as a system of rules governing the interaction of individuals exercising their free will independent of a larger social or political context of any kind. Occasionally, one also finds references to ormalist theories of tort law that stress the autonomy and internal logic of tort law doctrine.¹⁴ But surely, these are not the only, and arguably not even the predominant, conceptions of contract or tort law. In fact, even within the confines of contract law or tort law doctrine and theory themselves, it would not be difficult to discover the very private/public distinction that the regulation literature assumes accounts for the distinction between law and regulation.

Drawing the distinction between regulation and many, perhaps most, conceptions of private law, rather than the conception of private law held up by regulationists as representative of law as private, may be difficult. More problematic still is drawing the distinction between public law and regulation. While many have challenged the distinction between regulation and public law, few have challenged the existence of public law. Recent work in jurisprudence—that is, work in jurisprudence since the early twentieth century—has tended to point up the public aspects of apparently private law, to the point of suggesting that public law is all-encompassing and private law but an anachronistic cover for the protection of private property interests from public control. The one exception here seems to be a long influential strain in English jurisprudence that denied the existence—or at the very least the desirability—of public law, if only in England, because it was thought incompatible with a peculiarly English commitment to an idea of “common law,” understood as a uniform set of legal principles that applied to private and public actors alike. It seems unlikely that, and ironic if, regulationists should endorse this view, inevitably traced to A. V. Dicey, which is subject to various criticisms, including that its celebration of common law as the embodiment of the rights of Englishmen, jealously guarded by common law judges, obscures the roots of the “common law” in the king’s effort to centralize power against a patchwork of local justice, meted out by inferior lords; that it proceeds from Dicey’s caricature of French administrative law, which functions as the public law straw man in his dismissal of the very project of public law; that it falsely, and narrowly, identifies public law with administrative law and mistakes the desirability of public law with the desirability of (a very specific set of nineteenth-century French) public law institutions and of legal immunity for officials who populate these institutions.

The distinction between private law and public regulation, then, relies on a cramped, outdated, and parochial view of private law and public law (and, in fact, common law, about which more later on), one that has long since been challenged and, at least in the United States, abandoned in favor of a view that either jettisons the distinction between public law and private law as nonsensical, inherently reactionary if not antidemocratic, or at least unhelpful if only because private law is public in that it, for instance, fulfills public functions, is subject to public supervision, control, and manipulation, and is backed by public sanctions.

Perhaps (public) regulation should be compared not with private law, but with public law. The public nature of public law, however, is anything but obvious; in fact, the definition of public law is no more settled than is the definition of private law.¹⁵ If one turns to the common-sense notion that public law is state law, in the sense that the state is a party to a relationship or a dispute governed by it or in the sense that it concerns state actions and actors, then regulation is tethered to the state, which would preclude common attempts to broaden the regulatory inquiry in general (“influencing the flow of events”) and to “decenter” it in particular (to capture what is thought to be the distinctive feature of “the new regulatory state” and its “self-regulation” and “public-private partnerships”).¹⁶

Perhaps public law and regulation are thought to be public in the sense that they both pursue the “public welfare” or “public interests” of some kind or another. While this view of the publicness of public law would not be without merit (depending on how one defines “public interests” in particular, as the interests of the public or as the public’s interest in a given state of affairs, or conflict), it does not in fact underlie the distinction that is ordinarily drawn between public law and private law, which focuses on state officials as the producers or objects of public law, rather than on its objective. At any rate, it would be inconsistent with another common attempt to differentiate between regulation and law on the ground that one is concerned with welfare (and interests), while the other is concerned with justice (and rights). So, once again, the distinction between regulation and law ends up simply tracking that between public law and private law, with no room to differentiate between regulation and public law. As we will see, however, the distinction between justice and welfare plays an important role in the distinction between law and police. Once regulation is understood as a manifestation of, or simply a modern label for, police as a mode of governance (or at least some of its aspects), attempts to differentiate between regulation and law in light of the distinction between welfare and justice appear more promising.

Yet broader than the distinction between justice and welfare is that between the deontological and instrumental approaches that are said to characterize law and regulation, respectively. Again, the claim that a prospective instrumentalist rationale is characteristic of regulation, while law is committed to a retrospective deontological view ignores the reality of a wide array of conceptions of law, not all of which (or even most of which) dismiss an instrumentalist method as disciplinarily inappropriate. Once again, much of American jurisprudence (academic and judicial) over the past century has been explicitly instrumentalist. To take an example from the area of criminal law, to be explored in greater detail below, the American Law Institute’s highly influential Model Penal and Correctional Code explicitly rejected a retributivist approach to criminal law as outdated and barbaric and instead crafted a comprehensive treatmentist system for the diagnosis and peno-correctional treatment through rehabilitation and, where appropriate, incapacitation of abnormally dangerous offenders.¹⁷ Committedly progressive regulatory studies once again operate with an oddly outdated view of law.

The concept of common law already has made an appearance in our discussion of the distinction between regulation and law in light of that between public and private (law). Here some regulationist scholarship appears to operate under the Diceyan assumption that all common law is, by definition, private law. At any rate, the idea appears to be that law is common law, presumably understood in the sense of “case law” or judge-made law or the law of judicial precedent reaching back for centuries if not millennia through the history of English law, whereas regulation is statute law, or law (or perhaps simply norms) promulgated by the legislature (or perhaps the executive). This distinction, between common law and statute law, is as outdated and parochially English as other distinctions the regulation literature has invoked and has long been abandoned in the United States and, I suspect, today can no longer claim dominance even in English jurisprudence.

The idea that only judge-made law is “real” law, whereas all other law is interstitial, even novel, maybe appealing to English judges and may help account not only for the long-standing English resistance to codification but also for the limitation of that resistance to English law, as codification by English lawyers in the colonies was thought preferable, by the English, to the development of common law in dominions without a sufficient supply of English common law-making judges.¹⁸

Limiting the production of law to the judiciary also implies a similarly narrow minded and long-since debunked view that judges do not contribute to the regulatory enterprise. Here, too, regarding regulation as police illuminates the distinction between regulation and law by placing it into a broader context; while the police power in the United States traditionally has been associated with the legislature, and by delegation the executive, the judiciary has wielded considerable police power of its own, illustrated most obviously by the power to recognize so-called common law (!) misdemeanors rooted in the power to police defined by Blackstone as the power to ensure that “the individuals of the state, like members of a well-governed family,. . . conform their general behaviour to the rules of propriety, good neighbourhood, and good manners: and to be decent, industrious, and inoffensive in their respective stations.”¹⁹

Finally, there are several distinctions between regulation and law that, oddly, also have been used to differentiate among various types of regulation in the event that the distinction between regulation and law is abandoned in favor of the view that law is but one type of regulation. Law is frequently associated, if not identified, with “hierarchical” “command-and-controF²⁰ regulatory regimes which are contrasted with more “responsive (or reflexive)”²¹ regimes, a contrast that tends to be associated with the transition from the “welfare state” (and its old-style regulation) to the “new regulatory state,” which spends more time “steering” than it does “rowing.” Law (or “legalistic” regulation) is also said to be formal, and regulation (or at least “new” regulation) informal. Similarly, law is said to operate through rules, backed up by enforcement schemes and threats of sanction for noncompliance. Nonlegalistic regulation, by contrast, works through “incentives,” and “by moral suasion, by shaming, and even by architecture.”²²

In this context, law tends to be treated as synonymous no longer with private law (and contracts in particular), but with criminal law, a field of law that is generally cited as a, if not the, paradigmatic instance of public law. Apart from this notable shift of definitional contrast from contract law to criminal law, the regulation literature once again operates with a quite undifferentiated and outdated view of criminal law. Rather than vaguely Diceyan as in the case of the image of the common law, and vaguely Langdellian in the case of contract law, the common-sense regulationist view of criminal law appears to be vaguely Austinian, defined by sovereign commands directed at subjects under a general duty of obedience. Needless to say, this deeply hierarchical view of criminal law, though influential and descriptively illuminating, is not without significant alternatives, both in doctrine and particularly in the scholarly literature. The essential informality of the penal process, which relies heavily on official discretion at all levels, illustrated, for instance, by the widespread practice of plea bargaining, has been documented in great detail. Similarly, it has long been argued that criminal norms include rules as well as standards, specific and narrowly defined commands as well as intentionally broad, even vague, proscriptions, specifically designed to render “law enforcement” more effective.²³ An entire literature has sprung up describing, and critiquing, the privatization of important aspects of the penal process, from the prevention and investigation of offensive behavior (by the private security industry) to the infliction of punishment (in private prisons). The image of criminal law in the regulationist literature, then, is no less one dimensional than its view of contract law, tort law, common law, and law in general.

Regulation as Police

The difficulties faced by attempts in the regulationist literature to distinguish regulation from law and therefore regulatory studies from legal studies may hamper regulationist efforts at disciplinary self-definition. In this paper, I’m more interested in understanding the source of these difficulties and in extracting illuminating aspects of the proposed distinctions. The problem is, I believe, that comparing regulation with law so far has been comparing apples with oranges. The problem is not that defining regulation against law is inappropriate, theoretically or historically, once regulation is properly understood. The proper understanding of regulation, I suggest, is as a modern label for a long-familiar mode of governance, police.

This dual system of private heteronomy and public autonomy persisted in Roman politics, with the pater famili as replacing the oikonomos, the familia the oikos, and the forum the agora. As the republican ideal in Roman government faded, the familial mode of governance was extended or transplanted from the micro family to the macro family of the Roman imperial state, though at least in theory the autonomy-based legitimation derived from the imperium’s foundation in the Roman people persisted even as the emperor assumed the title of pater patriae.²⁴ On a smaller scale, military commanders and magistrates had gained quasi-patriarchal power.