Mr Damian Chalmers
Department of Law, London School of Economics
Date: 21 January 2003
Time: 1:00pm - 2:30pm
Venue: CARR Seminar Room, H615
Regulation and the European Community enjoy a mutually constitutive relationship. On the one hand, regulation is what the European Community spends most of its time doing. On the other, the scale of the Community's regulatory activities have made it possibly the central arena in gauging the nature of regulation within the United Kingdom today. Yet, the Commission White Paper on Governance suggests a crisis in EC regulation. It is often poor quality and lacks broader support. The solution suggested both in EC documents and more general regulatory debates is broadening participation. This will enhance the quality of debate, disseminate knowledge of the issues and incorporate dissenting voices.
Unfortunately, experiments in deliberative democracy have unerringly shown them to lead to poor policies. They are inefficient, exacerbate existing asymmetries of power and polarise views. This is, in part, because deliberative models take a lazy of the communicative process. They provide no discussion of central institution of their political model. For talk, per se, is not a good but is rather informed by the performative, institutional and epistemic contexts that surround any communication. That is to say any utterance must be with a view to something, take place in a particular setting and be based on certain shared understandings.
Regulation is a form of government that equates politics with problem-solving. It draws a particular relationship between the policy process and knowledge in which the latter is used to structure and legitimate the policy-process. Politics becomes centred around the generation and application of knowledge. Reforming regulation is therefore an exercise in the politics of knowledge.
If the task of regulation is to contribute the generation of knowledge then, the social psychology literature informs us that the best settings for this are 'communities of practice' - informal discrete groups characterised by mutual trust, shared episteme, joint enterprise. Knowledge-generation is therefore a polarised, pluralized process that is characterised not by consensus, but, insofar as it is imposed by selective and self-selecting groups, by cleavage and conflict.
It is not possible for law to 'democratise' this process by reconstituting it. Instead, it can impose procedures over how choices are made between different types of knowledge and suggest broad norms that all forms of knowledge should address. In this there is the structural difficulty that any site is more receptive to some forms of knowledge than others and that any choice necessarily creates new asymmetries of power and hegemonies.
In this regard the EC enjoys a potential comparative advantage in the institutional and epistemic constraints it can impose over this process. Institutionally, the multilevel nature of EU governance creates a series of different sites at the various stages of the policy process, each of which imposes checks and balances upon the other. Each site is receptive to different forms of knowledge, is responsive to different constituencies and has different tasks. These sites, deliberatised' serve to refract and impose internal checks and balances upon each other.
Epistemically, the EC suggests a favoured mode of discourse, namely that one should deliberate in a 'European' way. The political process should be governed by the ideals of deliberation as understood by the European tradition. It will be argued that the value of deliberative democracy lies in its suggesting four ideals that any decision (and, as a corollary, any debate) should address - those of transformation, validity, solidarity and self-government. These ideals not only have more meaning in a 'regulatory world' than the discourse of liberal freedoms or utilitarianism but come with an established European pedigree.