Reflexive Regulation

Reflexive Regulation

The aim of ‘reflexive’ or ‘responsive’ regulation is, therefore, to ensure that regulation be responsive to industry structure, and that different structures will be conducive to different degrees and forms of regulation. In some accounts, reflexive law can be used to ‘steer’ self-regulation: The use of regulatory intervention to induce certain desired ends through second -order effects is characteristic of “reflexive” or “procedural” regulation which aims to achieve its intended effects by encouraging self-regulation at the level of the practices and processes operated by the parties themselves.
An example of this type of regulation is ‘enforced self-regulation’ and which can be distinguished from ‘co-regulation’. Co regulation is the process whereby associations of firms or professionals at the level of the industry concerned promulgate generalised standards for the conduct of trade. The rules in question are arrived at through a process of negotiation and deliberation within the industry. The government exercises loose supervision or oversight in the sense of intervening through competition law to curb rules which plainly have an anti-competitive effect or purpose.
Enforced self-regulation, by contrast, is a form of self-regulation in which regulatory functions are sub -contracted by the state to private commercial actors who, in this case, may be the firms themselves rather than the industry-level associations. The difference from co-regulation is that the state is ready to intervene with more stringent and less firm-specific or ‘tailored’ standards if private actors do not agree their own rules. The state thereby encourages a negotiated solution which is, in principle, better attuned to local conditions than would be the case with a generalised or imposed set of rules. The use of proscriptive norms and legal (including criminal) sanctions is not ruled out altogether, but, rather, is kept in reserve for situations of extreme noncompliance.

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