Democracy Part 34: Experimental Regulatory Governance and the Nature of Representation in democratic Societies

(Pix © Larry Catá Backer 2016)

The mania for governance, and especially for regulatory governance, a mania that one might think has begun to consume those with influence or authority to make their ideas reality, has begun to assume the willful instrumentalism of a science--the science of animal husbandry applied to mass society. (E.g., Jonathan Zeitlin, ed., Extending Experimentalist Governance?: The European Union and Transnational Regulation (Oxford University Press, 2015). That science is marked by three distinct characteristics that  may be problematic for societies grounded in the ideology of Western representative democracies.  The first is the premise that there are objective that fulfill the objectives of governance that are autonomous of the specific desires of the governed; that is, that the ideal of social or political organization is autonomous of the popular knowledge or desire.   The second is the premise that these ideals may be best discerned and imposed, for the good of the people, through the development of regulatory measures meant to manage the targeted population in the behaviors or values that approach this ideal.  The third is that the ideal approach to the attainment of the ideal is through the assertion of public authority, either through representative or administrative organs, in place of decision making by individuals.   

This post considers the consequences of experimental regulatory governance on representation in democratic states, that is on the relationship between popular will, the ideal and the fidelity of governmental organs to one or the other.  

The professionalization of policy requires the professionalization of administration to develop and manage the implementation of what is scientifically determined to be best for a target population. And the science of governance in the service of the ideal may require experimentation that produces the right regulatory structures for the problem it is meant to solve. Western administrative states as well as Marxist Leninist Party-States are increasingly converging on a set of ideals revolving around these premises of ideal states, of the need to husband the masses, of the scientific development of society, and of the use of regulatory governance to that end for the benefit of the masses in accordance with the ideal that serves as the legitimating basis of these activities.  Within this emerging ideological structure, legitimacy and accountability are measured, scientifically, by the movement toward the benefit, that is by progress toward the ideal. 

But there is a price to this regulatory experimentation, a cost to the deployment of regulation instrumentally to develop a regulatory husbandry of the masses. That price, of course, touches on the values and structures of Western notions of democratic organization and authenticity that, ironically enough, provides a cover of legitimacy to those engaged in this new science of regulatory husbandry.  This is particularly the case with respect to issues of representation and responsiveness, which may be overcome by the preference for scientific truth grounded in ideals autonomous of mass preference in policy development.  This is not to suggest that this sort of regulatory governance, or its premises and structures, much less its costs, are not, in the end, wrong or bad or good.  But it does suggest a dissonance between a push toward experimentalism in regulatory governance and traditional notions of representation in Western style liberal democracy that at some point will have to be confronted.   

This dissonance is particularly acute in those organizations at least one step removed from a direct connection with a democratic polity. Increasingly international organizations have sought to apply the techniques and presumptions of regulatory governance--the ideal, the autonomy, and the professionalization in the service of a group--to their own work (e.g., Kenneth W. Abbott, Philipp Genschel, Duncan Snidal and Bernhard Zangl, "Orchestrating global governance: from empirical findings to theoretical implications," in International Organizations as Orchestrators (Kenneth W. Abbott, Philipp Genschel, Duncan Snidal and Bernhard Zangl, eds., Cambridge 2015); Gregory Schaffer, "How the WTO Shapes Regulatory Governance," Regulation & Governance, Vol. 9, No.1, pp.1-15, 2015).   The basis of the idea is that an ideal can best be attained through the intervention of sound regulation in the service of the ideal, which is embodiment of the highest will of the people (whether to not they are aware f its depth or implications).   

But this approach can be brutish, and science is an inexact process of experimentation in search for a truth that itself may change as times and context changes.  It is therefore suggested, from some quarters, that just as states experiment with their regulatory approaches, so international organizations experiment with their regulatory governance to better serve both the science of governance and their ultimate obligation to the regulatory ideal. The idea is an extension of the quite conventional Western notion (with analogues in Marxist Leninist States) to sub-units as laboratories of regulation (in the United States for example states as localities as laboratories of democracy; in Marxist Leninist States the use of special zones for regulatory experimentation in the service of socialist modernization). And so, international organization might be urged to apply the experimentalism of administrative states to its own governance regimes.

There are a number of techniques that have arisen to meet the need for regulatory experimentation--some of them borrowed from the world of private governance and grants based experimentation in private-public partnerships.  The pilot program, the special zone and the like all speak to the best in regulatory governance.  They evidence both the progressive instinct and a cautionary principle that permits the state to experiment with its governance before it applies its governance systems generally.  It advances the science of ruling by investing a governing organ with the discretion to fashion structures and then to assess them, revise them and apply them as they in their discretion believe appropriate. 

But such experimentation also represents something of a shift in the relationship between the source of authority and its instrumentalities.  At some point it becomes less than clear whether the pilot project serves as an experiment on rather than an experiment with the sovereign population for whose benefit these exercises in power are undertaken.  There is a sense, sometimes, that within the complex of experimental regulatory governance the individual becomes the laboratory test subject for the principle project--to align regulation to an ideal beyond the desires an any individual and in the service of an idealized "mass" in whose service the ideal is constructed and served. That is, that regulatory experimentation is undertaken on rather than with a subject population, and that in the context of international organizations, without even the protection of direct accountability.

That changes the nature of representation in a polity (or across polities in the context of international organizations) (see eg here). Where experimentation in governance of this sort is undertaken it creates a choice for the regulator.  That choice is between on the one hand a fidelity to the individuals who make up the polity in any point in time, or on the other the ideal that the ideology of the objectives on which the state is founded representing the collective aspirations of the people formalized within a normative framework.

With an obligation to represent  individuals, experimentation might necessarily require a constant engagement with those who would be affected by policy and a sensitivity to their assessment of those efforts.  That engagement and the resulting accountability may change with the whim of the represented--but that is the nature of a representative democracy in which the individuals living at a particular time are privileged.  At its worst, it produces demagoguery and it suggests the absence of progressive ideals toward any particular goals other than the satisfaction of the temporal desires of those on whose behalf one governs. At its best it aligns government with the consensus desires of the people without precondition and avoids the sort of managerialism that is, at its base, adverse to broad notions of human dignity as a political concept. This is a notion of representation and democracy at its most ancient and simple.  And it suggests that there is no purpose to government other than the provision of stability and the satisfaction of the momentary desires of a population; perhaps its represents the founding ideology of the United States, now at times increasingly dimly recalled several centuries on in its existence.  

With an obligation to represent the ideal, experimentation might necessarily require greater detachment between individuals and the state apparatus, and indeed would compel the state to avoid an engagement that distracts from the privileged mission to do all necessary to approach the objectives of the ideal. The whim of the population, of individuals, at any point in time, must be subordinated to the objectives, the ideals, of the people memorialized in the guiding ideology. To that end, administrative and political officials must serve the people by serving the ideal.  And momentary distractions--including those demanded by popular agitation--are understood as error, and as an obligation on the guardians of the ideal--the representatives of the people, to correct.  Representation, then, assumes a distinct character.  It is grounded on managerialism--the obligation to guide individuals to the ideal embraced by the people toward.  To that end regulatory governance must be used instrumentally to socialize, to instruct and to better embed the ideal which governance organs serve.  In this case the official still serves  in a representative capacity--but they represent the people (and their ideal) and not the individual.  It suggests that there is a purpose to government beyond the mere satisfaction of momentary desire; perhaps this represents the founding ideology of China and other Marxist Leninist States.

Modern institutional thinking sometimes tends to seek to merge to the two--or at least conflate them in possible combination. It might suggest, for example, that the development of ideals must occur within the deliberations of states and then applied to the creation of global strictures through experimentation.  "Thus, just as the developmental state finds effective and novel mechanisms and institutional forms to redirect resources effectively towards the goals of poverty alleviation and capability enhancement, global institutions should be able to achieve the same at an international level. The challenge is made greater by the need to appropriately cede sovereignty in some areas in which such secession is often very unpopular, and to imagine new possibilities." (Arjun Jayadev, Global Governance and Human Development:  Promoting Democratic Accountability and Institutional Experimentation (U.N. Development Program Human Development Research Paper 2010/06 (June 2010)) p. 10). Yet, this sort of multi level experimental approach, even one sensitive to issues of democratic accountability at the state level, leaves unanswered the basic question of the object of representation. And that question is the essential baseline question from which quite distinct approaches can be developed. If democracy demands fidelity to the ideological ideal--to the goals, objectives or normative projections of a people--then representatives must be loyal to that ideal even at the expense of temporary  divergences with individual desire.  Political legitimacy is grounded in the people, not in the individual or any aggregation of individuals that may assert political power at any single time. If democracy demands fidelity to the individual--to the collection of people, arranged in their various factions and communities--then representatives must de-center the ideal for a loyalty to the desires of the individual expressed from time to time even at the expense of an ideal that is not embraced as a foundational norm (which may themselves be altered by the collective desires of individuals).  

The move toward an animal husbandry as a regulatory ideal--and the scientism suggested by the turn toward experimentation in regulatory governance, itself suggests a profound change in underlying norms that are worthy of serious discussion.  Those changes, to the character of democracy--to its center--will shift the focus of democratic representation and to the focus of accountability, from the individual to the ideal, from the person to the people.