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The Ensuring State and Modes of Regulation

Professor Gunnar Folke Schuppert
Social Science Research Centre, Berlin

: 10 February 2004
: 1:00pm - 2:30pm
: CARR Seminar Room, H615


I. The Ensuring State
The Concept of the "Ensuring State" develops on, but is significantly different from, the idea of the 'enabling state' that has been central to much of the thinking that has guided state reform during the last two decades. The 'ensuring state' emphasises the responsibility of the state in areas where non-state agents play a dominant role in the provision of public services. It argues that there exists a public responsibility 'after enabling' and that there are certain guarantees that the state has a moral and political responsibility to provide. Even if public goods or services are provided by private of third sector organisation and bodies, the state still has a major role in ensuring these public goods, whether it is by audit, regulation or funding.

The concept of the ensuring state:

  • does not call for the 'retreat' of the state
  • takes for granted a continuing state responsibility for the common good
  • rejects the idea that changes in statehood reduce state responsibility

An ensuring state must recognise that changes in statehood actually imply changes in the modes, style and instruments of governance, not a rejection of responsibility.

II. The Ensuring State as a Regulatory State
At its heart, modern governance means the business of regulation - simply because without installing an appropriate regulatory framework, the ensuring state will not function.

If the changing role of the state is to be described in terms of categories of responsibility, ranging from performance to ensuring responsibility, this move must be accompanied by a regulatory framework. We need a mechanism that allows a switch between the state's performance responsibility and its ensuring responsibility. This new form of responsibility changes the style and instruments of public policy, but does not abandon the obligation public authorities have to guarantee the effectiveness of privatised or partly privatised public services.

III. A Theory of Regulatory Choice
It is quite common when discussing the appropriateness of different forms of regulation to judge these in terms effectiveness or organisation fit. However, when we discuss how we should regulation, only very rarely do we attempt to distinguish between different 'producers of law'. We must, therefore, add to our theories of instrumental and organisational choice a discussion of the evolution of a theory of regulatory choice. It is only by supplementing existing approaches with a sensitivity to the evolution of regulation that we will be able to evaluate the appropriate regulatory regime for any particular problem. Here, we can work with a very simple range of types:

Types of Regulation

  • Classical hierarchical regulation
  • Regulated self-regulation
  • Self-regulation

Here, the most interesting type of regulation identified above is 'regulated self-regulation', as it represents the most appropriate form of regulating the complex relationship between the public, private and third sector in today's societies. The reform of public services should, for example, be accompanied by modernised law making. According to the concept of 'legal pluralism', an approach that has evolved since the internationalisation and globalisation of the nation-state, a theory of regulation has to give guidance in situations of 'regulatory choice'. New forms of regulatory regimes - like 'Co-Regulation' at the European level - might facilitate this form of 'governance with society' to evolve.