+
Warwick Law School Public Lecture Series - 18 February 2015
The Regulatory State, The Management of Risk and
Preventive Justice by Design
Karen Yeung
Director, Centre for Technology, Ethics, Law & Society (TELOS), The Dickson Poon School of Law, King’s College London
+
Structure
1.
The function of the ‘regulatory state’ is to manage risk, rather
than to redress market failure
2.
How do regulators employ risk management ideas to manage
expectations about their accountability and legitimacy?
3.
A ‘preventive’ state is emerging, for which ‘design’ is an
attractive strategy of control
4.
Are these strategies consistent with liberal democracy?
+
1.1 The rise of the regulatory state

The regulatory state as an analytical construct with three
identifying features (contrast with the ‘welfare state’):
1.
Institutional structure: highly fragmented
2.
Core functions: regulation and oversight rather than direct
service provision
3.
Strategies of control: formal and rule based rather than
bureaucratic fiat

State intervention in market justified to redress market failure
understood in terms of economic theory

Allegedly no ‘democratic deficit’ because redistributive matters left
to political decision-makers rather than independent regulators
+ 1.2 The regulatory state as risk manager

What is meant by ‘risk’?

Consider a proposal to purify a local water supply using a new technological method, but
fears that this may generate various ‘risks’ including a loss of fish (Allhoff 2009)

Risk as:
1.
The loss of fish
2.
The cause of loss of the fish
3.
The likelihood of the loss of the fish
4.
The expected outcome of the proposal

Standard use of risk in professional analysis: a quantitative conception of risk denoted by a
numerical representation of severity of an unwanted event obtained by multiplying the
anticipated impact of an unwanted event with a measure of its disvalue
+ The regulatory state as risk manager

Mike Power (2004) – argues that the concept of risk and the
practice and discourse of risk management has so extensively
infused organisational life that the management of both private
and public sector organisations is increasingly understood and
operationalised through the language of risk and risk
management

Merely a linguistic turn?

Or a substantive shift, with significant political, social and legal
consequences?
+
A substantive shift?

Rooted in different disciplinary origins: market failure rooted
in neoclassical economics, risk analyses rooted in the statistical
sciences

Evoke distinct debates and understandings about the public
interest in regulation

Market failure justifications much more limited than risk
management justifications, unable to capture the moral
dimension associated with wrongful harm-causing (cf risk
management discourse more ‘universal’)
+ 1.3 The management of risk and the politics
of responsibility

What are the implications of a substantive shift to regulation as risk management?
1.
Regulators make choices affecting collective welfare
2.
Market failure frames choice as state vs market. Risk management frames choices in terms of
our risk appetite and how we respond to various risks
3.
Reminds us of the width of the discretionary power of regulators in making decisions about
social risk, thereby highlighting the need for accountability and legitimacy
4.
Risk discourse and management as a legitimation device through which regulators seek to
manage public and stakeholder expectations about their responsibility for managing risk (Julia
Black 2011)
5.
Defensive use of risk management discourse in commercial sphere, where choice is portrayed
as that of ‘prosperity vs protection’ cf
6.
Pro-active use of risk management discourse for risks of violent attack and/or catastrophic and
irreversible harm to justify more intrusive, aggressive intervention. Choice portrayed is that of
‘safety vs danger’ – much more receptive to heavy-handed intervention.
+ 2. Precautionary risk management, public
protection and the preventive turn

What are the possible implications of the turn towards risk-based
approaches to organisational decision-making in ways alleged to
justify more aggressive and intrusive regulatory intervention?
1.
We are witnessing the emergence of the ‘preventive state’
(Streiker 1998) in which state intervention is justified in
accordance with a particular form of risk management logic
aimed at preventing harm before it materialises
2.
The use of ‘design’ as a regulatory technique is particularly wellsuited to the ambitions of the preventive state
3.
If these trends proceed unchecked, they might entail abuses of
power which should not be tolerated by liberal democratic
societies
+ 2.1 The precautionary principle and the
politics of fear

Risk management logic as a sword

The ‘precautionary principle’

Rio Declaration 1992, Principle 15: ““in order to protect the
environment, the precautionary approach should be widely
applied by States according to their capabilities. Where there are
threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation”

“Lack of full scientific certainty” denotes radical epistemic
uncertainty rather than known probabilities (Knight: risk vs
uncertainty)
+ 2.2 The emergence of the preventive state

Powerful critiques of the precautionary principle, yet underlying
logic of ‘better safe than sorry’ has common sense appeal

Risk discourse + precautionary logic = emergence of preventive
state
1.
Primary purpose is to prevent harm before it materialises
2.
Effective prevention requires more extensive and intrusive
intervention
3.
Early intervention preferable to ‘wait and see’
4.
Justification for preventive ambitions rooted in the state’s duty
to provide collective security
+ 2.3 The techniques of the preventive state

What are the preferred strategies of the preventive state?

Ex ante strategies (licensing system) provide comprehensive regulatory
scrutiny prior to commencement

Ex post strategies provide for publication of standards of unacceptable
conduct, backed by sanctions for violation. Citizens required to self-assess
and self-monitor to avoid infringement. Regulatory monitoring is posthoc and sporadic.

Preferred strategy depends on moral and political judgments concerning
the nature and distribution of error:
•
Type I error (false positives): designated action identified as infringing
the relevant standard when in fact it is benign
•
Type II error (false negatives) designated action identified as benign
when in fact it infringes the relevant standard
+
The treatment of error

Ex ante systems: prefer Type I error – better to mistakenly thwart harmless
activity/individuals than overlook harmful activity

Ex post systems: prefer Type II error – better to mistakenly allow harmful activity rather
than thwart innocent activity/individuals

Moral and political choice: Consider
•
Presumption of innocence (better to let 10 guilty men go free than convict one innocent
person)
•
War against terror:
“Within precautionary logic, margins of error are viewed in a distinctive way. False positives
(incorrectly assessing a person as dangerous) are part and parcel of being cautious in the face
of uncertainty – erring on the ‘safe side’. By contrast, false ‘negatives’, incorrectly rating a
person as ‘safe’ cannot be tolerated because the consequences of this type of error for public
safety and security are seen as potentially catastrophic. It is this asymmetry that drives not
only defensive practice by professionals, but also the development of ever more intrusive
policy initiatives (Henbenton and Seddon 2009: 352)
+ Design as a preventive regulatory instrument

Ex ante regimes traditionally rely on legal command and control,
comprised of a prohibition on unlicensed activity backed by
sanction.

Eg fishing for salmon and trout without a license in English waters

But formidable demands, especially in terms of enforcement
resources

Hence ‘design’ based instruments of control offer a potentially
more effective technique of prevention –i.e. techniques which
intentionally utilise design to shape the environment and things
and beings within it with the goal of directing designated activities
towards particular ends
Design as a regulatory instrument
Design-based regulation may take various forms
 encourage
 reduce
behavioural change
harmful impact of harm-generating activity
 prevent
undesired activity
+ Design as a preventive regulatory instrument

Cyberlawyers: design of software code regulates behaviour in
cyberspace

Behavioural law and economics: advocate ‘nudge’ techniques,
aimed at deliberately reconfiguring the social choice context to
encourage desirable behaviours while formally preserving
individual choice

Criminologists: demonstrate how ‘situational crime prevention’
techniques can employ situational stimuli to guide conduct
towards lawful outcomes
+
Action-forcing design
‘Action-forcing design’ seeks to prevent the unwanted conduct from
occurring altogether (eg self-blunting needle)
Self-enforcing character is critical: the standard is embedded within
the design object and the response is automatically administered
without the need for post hoc human monitoring
+
Traditional law vs action-forcing
design
+
But…
Although understandable attractions of action-forcing design,
various critiques:

Effectiveness: circumvention and workarounds

Undermine constitutional and democratic values (esp. public
participation, transparency, appeal, accountability)

Moral and ethical implications
+ 3. Preventive justice and the limits of
design

What are we to make of the preventive turn + design-based
forms of prevention?

Warning: we must not allow the state unlimited scope to
intervene in the lives of citizens in the name of public
protection

A call to arms: to clarify and articulate the proper boundaries of
the preventive endeavour and the use of design-based
techniques of public protection.
•
To map the content and contours of the preventive state
•
On-going critical evaluation of our institutions to ensure that
these limits are observed
+ 3.1 Developing a conceptual framework

Ashworth and Zedner (2014) construct a conceptual map for assessing
preventive measures entailing coercive deprivations of liberty as part of a
larger aim of articulating principles of preventive justice

State’s duty to protect citizens grounded in the Hobbesian social contract.
But what are the limits of this duty?

Must reconcile with duty of justice:
•
duty to treat persons as responsible moral agents, to respect human rights
•
Duty to provide a system of criminal justice to deal with those who
transgress the law

Reconciliation must be guided by core liberal values, rooted in respect for
rights and the rule of law
+ 3.2 Ashworth & Zedner (2014)

Importance of procedural rights and protection for those
adversely affected by preventive measures, especially given the
use of techniques that deliberately sit outside the criminal law

Conform with principles grounded in the rule of law

A highly context sensitive approach to proposed preventive
measures in situations of cute epistemological uncertainty: for
any proposed remedy, what are the associated knowledge and
harm conditions required to justify a remedy of that kind?
+ 3.3 Moral bioenhancement as a
hypothetical case study

Ashworth & Zedner’s framework requires further development
to accommodate other kinds of preventive measures, including
design-based interventions

Consider the proposal of Savalescu and Persson (2012) who
argue that if we could develop a safe and effective psychoactive
drug which makes individuals ‘more moral’, it should be
administered on a universal and compulsory basis to counter
the threat of catastrophic harm posed by a single individual
armed with weapons of mass destruction

Would this be legitimate in a liberal democratic society?
+ Compulsory moral bioenhancement

How does the state propose to administer this drug on a
universal and compulsory basis:
a)
Through legal compulsion?
b)
‘Voluntary’ participation by making certain benefits/services
contingent on participation?
c)
Add it to the community water supply?

Consider the role of fundamental rights

Water fluoridation and Article 8 ECHR (right to private and
family life) – Court deferential to fluoridation schemes
+ A right to cognitive liberty?

Would the ECtHR be similarly deferential to moral
bioenhancements administered in this way?

Problem: if no adverse effects on body (claimed for fluoridation)
then Art 8(1) not readily violated.

Rather: problem of ‘mind assault’

Possibly protected by the right to freedom of thought (Art 9
ECHR) “Everyone has the right to freedom of thought, conscience
and religion” (also Art 18 ICCPR) but jurisprudence not developed

Blanket administration clearly disproportionate

But what about administration to suspected terrorists only?
+
4.

Conclusion
What is lost when we concentrate our energies on preventive
measures to forestall risks of unwanted events that might
never arise, or which we simply cannot prevent, however hard
we try?