Moving Beyond Command-and-Control: Reflexivity in the Regulation of Occupational Safety and Health and the Environment

Direct or "command-and-control" regulation has had limited success in dealing with occupational health and safety and with environmental regulation. This lack of success has led policymakers to experiment with self-regulation as an alternative means of achieving the goals of social regulation. The economic subsystem fails to acknowledge its social identity and, therefore, appears to be blind to its negative performance regarding the environment and the workplace. The authors of this paper argue that moving beyond command-and-control can be feasible and desirable, at least to a certain extent, but that pitfalls are omnipresent. "Regulatory dilemmas" need to be solved, sound empirical studies need to be conducted, and a guiding theory needs to be drafted. To achieve these goals, the authors suggest use of the key concept of "reflexivity," which refers to the economic organization's relationship with itself. The practical usefulness of this theoretical concept is explored against the background of regulatory practice in the areas of occupational safety and health and the environment. It is concluded that a mode of reflexive administrative law requires a "negotiating government," which adopts a mixture of strategies and learns to cope with issues like third-party interests, access to information, and enforcement.