From the rule of law to the rule of rules: technocracy and the crisis of EU governance

This article focuses on two trends emerging through the eurozone crisis, both of which diminish the quality of democracy in the EU and its member states. Firstly, the crisis has led to an increased reliance on non-majoritarian institutions, such as the ECB, at the expense of democratic accountability. Secondly, the crisis has led to a new emphasis on coercive enforcement at the expense of the voluntary cooperation that previously characterised (and sustained) the EU as a community of law. Thus, the ECB’s (over-)empowerment is a synecdoche of a wider problem: The EU’s tendency to resort to technocratic governance in the face of challenges that require political contestation. In the absence of opportunities for democratic contestation, EU emergency governance – Integration through Crisis – oscillates between moments of heightened politicisation, in which ad hoc decisions are justified as necessary, and the (sometimes coercive) appeal to the depoliticised rule of rules.     

Adaptive governance for the Internet of Things: Coping with emerging security risks

The Internet of Things (IoT) is a disruptive innovation known for its socio-economic potential, but also for generating unprecedented vulnerabilities and threats. As a dynamic sociotechnical system, the IoT comprises well-known cybersecurity risks and endemic uncertainties that arise as IoT adoption increases and the system evolves. We highlight the impact of these challenges by analyzing how insecure IoT devices pose threats to both consumer protection and the Internet's infrastructure. While recent regulatory responses are starting to target IoT security risks, crucial deficiencies – especially related to the feedback necessary to keep pace with emerging risks and uncertainties – must be addressed. We propose a model of adaptive regulatory governance that integrates the benefits of centralized risk regulatory frameworks with the operational knowledge and mitigation mechanisms developed by epistemic communities that manage day-to-day Internet security. Rather than focusing on the choice of regulatory instruments, this model builds on the “planned adaptive regulation” literature to highlight the need to systematically plan for a knowledge-sharing interface in regulatory governance design for disruptive technologies, facilitating the feedback necessary to address evolving IoT security risks.     

Orchestrating sustainability: The case of European Union biofuel governance

This article provides an empirical analysis of orchestration – that is, the initiation, support, and embracement of private governance arrangements through public regulators – in the field of European Union biofuel governance. It examines the emerging sustainability regime and shows that orchestration has been extensively practiced. Regulators in the European Union have used a range of directive and facilitative measures to initiate and support private biofuel certification schemes and to incorporate them in their regulatory frameworks. This has given rise to a hybrid regime in which public and private approaches are closely intertwined. Discussing the benefits and complications of engaging with private biofuel sustainability governance, the article's findings point to a partial failure of orchestration in this policy area.     

The Aboriginal Cultural Heritage Act 2003 (QLD): A form of private governance in action?

The Aboriginal Cultural Heritage Act 2003 (QLD) (ACHA) removes the Queensland Government from any direct role in the regulation of Aboriginal cultural heritage, and operates by encouraging and in certain circumstances, requiring agreements between developers and Aboriginal groups. This paper argues that these agreements constitute a form of private governance. Agreements between developers and Aboriginal groups have traditionally been seen as falling outside private governance literature as they are domestic and contractual in nature. However, private governance theory has recently been used to understand agreements between developers and Indigenous groups in Canada and this paper will demonstrate that the approach of the ACHA constitutes a form of private governance. This paper will analyse the ACHA against key principles for good governance and explore the challenges for the protection of Aboriginal cultural heritage when the state is removed as regulator.     

Dysfunctional state institutions,trust, and governance in areas of limited statehood

Areas of limited statehood where the state is absent or dysfunctional are rarely ungoverned or ungovernable spaces. The provision of rules and regulations, as well as of public goods and services – governance – does not necessarily depend on the existence of functioning state institutions. How can this be explained? To begin with, we identify functional equivalents to state institutions that fail to govern hierarchically. Moreover, we focus on informal institutions based on trust that are endogenous to areas of limited statehood. Personalized trust among community members enables actors to overcome collective action problems and enhances the legitimacy of governance actors. The main challenge in areas of limited statehood, which are often characterized by social heterogeneity and deep social and cultural cleavages (particularly in post‐conflict societies) is to move to generalized trust beyond the local level and to “imagined communities among strangers,” despite dysfunctional state institutions. We propose two mechanisms: First, the more group‐based identities are constructed in inclusive ways and the more group identities are cross‐cutting and overlapping, the more they lead to and maintain generalized trust. Second, experiences with fair and impartial institutions and governance practices – irrespective of whether state or non‐state – also lead to generalized trust beyond the local level and allow for the upscaling of governance.     

Transnational private governance between the logics of empowerment and control

Transnational private governance initiatives that address problems of social and environmental concern now pervade many sectors. In tackling distinct substantive problems, these programs have, however, prioritized different problem‐oriented logics in their institutionalized rules and procedures. One is a “logic of control” that focuses on ameliorating environmental and social externalities by establishing strict and enforceable rules; another is a “logic of empowerment” that concentrates on remedying the exclusion of marginalized actors in the global economy. Examining certification programs in the areas of fair trade, organic agriculture, fisheries, and forest management, we assess the evolutionary effects of programs prioritizing one logic and then having to accommodate the other. The challenges programs face when balancing between the two logics, we argue, elucidate specific distributional consequences for wealth, power, and regulatory capabilities that private governance programs seek to overcome.     

Temporary legislation,better regulation,and experimentalist governance: An empirical study

This article presents the findings of an extensive multi‐method empirical study that explored the relationship between temporary legislation, better regulation, and experimentalist governance. Temporary (or “sunset”) legislation – statutory provisions enacted for a limited time and set to expire unless their validity is extended – is often hailed as a key tool for promoting experimental and better regulation. Despite the importance of temporary legislation and the burgeoning theoretical scholarship on the subject, there is still a dearth of empirical studies about how temporary legislation is used in practice. The lack of empirical evidence creates a lacuna in at least three areas of theoretical scholarship, concerning temporary legislation, better regulation, and experimentalist governance. This paper is a first step to fill this gap.     

Between governance-driven democratisation and democracy-driven governance: Explaining changes in participatory governance in the case of Barcelona

Scholars of participatory democracy have long noted dynamic interactions and transformations within and between political spaces that can foster (de)democratisation. At the heart of this dynamism lie (a) the processes through which top-down “closed” spaces can create opportunities for rupture and democratic challenges and (b) vice-versa, the mechanisms through which bottom-up, open spaces can be co-opted through institutionalisation. This paper seeks to unpick dynamic interactions between different spaces of participation by looking specifically at two forms of participatory governance, or participatory forms of political decision making used to improve the quality of democracy. First, Mark Warren's concept of ‘governance-driven democratization’ describes top-down and technocratic participatory governance aiming to produce better policies in response to bureaucratic rationales. Second, we introduce a new concept, democracy-driven governance, to refer to efforts by social movements to invent new, and reclaim and transform existing, spaces of participatory governance and shape them to respond to citizens’ demands. The paper defines these concepts and argues that they co-exist and interact in dynamic fashion; it draws on an analysis of case study literature on participatory governance in Barcelona to illuminate this relationship. Finally, the paper relates the theoretical framework to the case study by making propositions as to the structural and agential drivers of shifts in participatory governance.     

Infinitely repeated contests: How strategic interaction affects the efficiency of governance

Contests over the scope and strength of regulation and governance are commonplace – and commonly repeated. The same players vie for the same government prize year after year: for example, environmental standards, government contracts, research grants, and public good provision. The open question is whether more rents are dissipated in repeated regulatory contests than onetime competitions. This question matters for regulation and governance because societies should design policies to waste the fewest scarce resources. According to some, the answer is “no”, but others say “yes”– more resources are wasted when people compete repeatedly for the same government prize. Herein, we use two game theoretic equilibrium concepts to help untangle the answer. Our results suggest non‐myopic contestants are more likely to behave as partners than rivals – provided the context is relatively sterile. Several common complications help break up the tacit partnership, including a disparity in relative ability, a shrinking prize, and additional players.     

Towards ‘reinventing government’: the changing perspectives of democratic governance for development

Good governance has now become a passion as all governments and regimes appropriate and/or misappropriate the term for development or populist reasons. However, democratic good governance is the catalyst for development. The idea of reinventing government is necessary in order to confront the dynamics and challenges of development in the era of globalisation. This is the main thrust of this review article. The article reviews three major books, the focus of which provides analytical insight towards reinventing government for achieving the MDGs and other development agenda. The books argue that to redesign and reinvent governments for development, attributes of democratic good governance must be articulated, localised and contextualised based on individual country's historical–political experiences and socio‐economic capabilities. Copyright © 2008 John Wiley & Sons, Ltd.     

The unstable core of global finance: Contingent valuation and governance of international accounting standards

Accounting standards are the foundations of the financial regulatory edifice, and global financial governance is no more stable than the asset valuations that feed it. Yet for two decades and up to this day, no international accounting rule for financial instruments – the bulk of banks' balance sheets – has emerged that was more than a temporary fix, to be succeeded by further reforms. We show how banking regulators have been central to this dynamic and how their support for applying fair value accounting to financial instruments, the cornerstone of regulatory debate, has oscillated throughout the whole period. The two common international political economy approaches to global financial governance, which analyze it either as interest‐based bargaining or as ideas‐driven expert governance, fail to account for this pattern. In contrast, we show how the contingency of financial valuations itself has made it impossible for regulators to embrace or reject a stable set of accounting rules.     

State-led bricolage and the extension of collective governance: Hybridity in the Swiss skill formation system

This paper explores the extension of collective governance to sectors without collective governance tradition. We introduce the concept of state-led bricolage to analyze the expansion of the Swiss apprenticeship training system – in which employer associations fulfill core collective governance tasks – to economic sectors in which training had previously followed a school-based and state-oriented logic. In deindustrializing societies, these sectors are key for the survival of collectively governed training systems. Through a mixed-methods analysis, we examine the reform process that led to the creation of new intermediary organizations that enable collective governance in these sectors. In addition, we compare the organizational features of these organizations with the respective organizations in the traditional crafts and industry sectors. We find that the new organizations result from state-led bricolage. They are hybrid organizations that reflect some of the bricoleur's core policy goals and critically build on the combination of associational and state-oriented institutional logics.     

Achilles' heels of governance: Critical capacity deficits and their role in governance failures

This article assesses the usefulness of conceptions of policy capacity for understanding policy and governance outcomes. In order to shed light on this issue, it revisits the concept of governance, derives a model of basic governance types and discusses their capacity pre‐requisites. A model of capacity is developed combining competences over three levels of activities with analysis of resource capabilities at each level. This analysis is then applied to the common modes of governance. While each mode requires all types of capacity if it is to match its theoretically optimal potential, most on‐the‐ground modes do not attain their highest potential. Moreover, each mode has a critical type of capacity which serves as its principle vulnerability; its “Achilles' heel.” Without high levels of the requisite capacity, the governance mode is unlikely to perform as expected. While some hybrid modes can serve to supplement or reinforce each other and bridge capacity gaps, other mixed forms may aggravate single mode issues. Switching between modes or adopting hybrid modes is, therefore, a non‐trivial issue in which considerations of capacity issues in general and Achilles' heel capacities in particular should be a central concern.     

Beyond opportunism: Intermediary loyalty in regulation and governance

Regulators and other governors rely on intermediaries to set and implement policies and to regulate targets. Existing literatures focus heavily on intermediaries of a single type – Opportunists, motivated solely by self-interest. But intermediaries can also be motivated by different types of loyalty: to leaders (Vassals), to policies (Zealots), or to institutions (Mandarins). While all three types of loyalists are resistant to the traditional problems of opportunism (slacking and capture), each brings pathologies of its own. We explain the behavioral logic of each type of loyalty and analyze the risks and rewards of different intermediary loyalties – both for governors and for the public interest. We illustrate our claims with examples drawn from many different realms of regulation and governance.     

Risk and the limits of governance: Exploring varied patterns of risk‐based governance across Europe

Risk‐based approaches to governance are widely promoted as universally applicable foundations for improving the quality, efficiency, and rationality of governance across policy domains. Premised on the idea that governance cannot eliminate all adverse outcomes, these approaches provide a method for establishing priorities and allocating scarce resources, and, in so doing, rationalise the limits of what governance interventions can, and should, achieve. Yet cursory observation suggests that risk‐based approaches have spread unevenly across countries. Based on a comparison of the UK, France, and Germany, this article explores the ways in which, and why, such approaches have “colonised” governance regimes in the UK, but have had much more limited application in France and Germany. We argue that the institutionally patterned adoption of risk‐based governance across these three countries is related to how entrenched governance norms and accountability structures within their national polities handle both the identification and acceptance of adverse governance outcomes.     

G20 institutional transition and global tax governance

The G20 is in transition from a short-term crisis institution to long-term steering institution, adopting a new ‘G20 + established international organization’ governance approach. In this approach, the main role of the G20 is to set the agenda and build political consensus for global economic governance. The established international organization provides the technical support and facilitates proposal implementation, while the precondition for the G20 institutional transition is that the emerging economies need to participate on an equal footing with the advanced economies. The case of global tax governance is among the few success stories of the G20's institutional transition. Within the ‘G20 + OECD’ governance architecture, the G20 builds the political consensus that the profits should be taxed where they are performed, while the OECD proposes the technical Base Erosion and Profit Shifting Action Plan. In this way, the G20's political leadership and the OECD's technical advantage complement each other, making a giant leap in global tax governance.     

Functional stakes and EU regulatory governance: temporal patterns of regulatory integration in energy and telecommunications

Abstract

One of the most fiercely debated questions about EU regulatory governance is the respective role played by functional and political factors in regulatory integration. This article contributes to this debate by focussing on the functional factor. Based on a refined conceptualisation of functional stakes, it finds that they vary across sectors, evolve over time, and that these variations are reflected in the degree of regulatory integration observed. When member states perceive regulatory integration as a solution to one of their most pressing problems of the moment, they value – and sometimes even actively push for – the delegation of regulatory powers to the EU. This argument is subject to a credibility probe based on two within-sector analyses of temporal patterns of regulatory integration in energy and telecommunications. The empirical analysis lends support to the conditioning role of the functional factor in the design of EU regulatory governance.     

Clarifying multilevel governance

Despite its widespread use in European studies and beyond, the concept of multilevel governance (MLG) still suffers from a considerable degree of uncertainty as to its precise meaning, which in turn hinders the cumulative development of this research programme. In an attempt to stimulate a systematic methodological discussion of the idea of MLG, this article presents a critical reconstruction of the concept structured around three ‘axes of ambiguity’– the applicability of MLG beyond the European Union; the role of non‐state actors; the focus on policy‐making structures versus processes – followed by a conceptual assessment and clarification strategy based on John Gerring's criterial framework. Building particularly on Gerring's criterion of causal utility, the article argues that the MLG concept is best clarified along the (not necessarily exclusive) lines of two theoretical directions emerging from the literature: MLG as a theory of state transformation, and MLG as a theory of public policy. For each of the two models, the criterial framework also indicates a number of corresponding conceptual shortcomings which MLG scholars should try to reduce as much as possible in future refinements of this idea.     

Cyber insurance and private governance: The enforcement power of markets

In the last half decade, cyber insurance has emerged as a multi-billion-dollar industry with the authority to set and enforce standards of security behavior. Although cybersecurity has become a concern of national policymakers, insurers appear to have supplanted the state to play an influential role in governing some aspects of client behavior. This paper explores private governance by cyber insurance firms and evaluates two competing explanations for its emergence – either that the private sector advanced to set and enforce cybersecurity standards for financial gain, or that the state retreated from its responsibility to regulate and private sector actors filled the gap only as necessary. To find an answer between these explanations, this article develops a single outcome case study of the American cyber insurance industry. Following a theoretical introduction to private governance and its manifestation through insurance, the article examines the insurance process and its application in cybersecurity, the key role of standards, and the mechanism of enforcing those standards. The article concludes by identifying key elements of this market-based enforcement and discussing implications for crafting effective private governance in other domains and public policy.     

Experimentalist governance in the European Union: A commentary

Sabel and Zeitlin's Experimentalist Governance offers an insight into European governance in those cases where the EU institutions do not have clear competence and where member states are not prepared to accept a unified policy on a problem at hand. Experimentalist Governance identifies four steps of action: agree on common goals, have lower levels propose ways to meet goals, then report on their meeting of goals, and, finally, periodically reevaluate the review procedures. By looking at the developments in EU policymaking through the lens of experimentalist governance (EG), one obtains an appreciation of how goals might be achieved that would otherwise not likely have been achieved through the community method. Sabel and Zeitlin highlight how EG can be effective in obtaining results, integrating peers, and incorporating deliberation, and offer a different way to deal with accountability and legitimacy. This article closes by taking the next step, namely, asking what challenges EG poses to democratic processes.