Regulation and the Global Interplay

The Predictability of Systems

Politics is supposed to lay paths out and also to follow them. It can be—and usually is—a painstaking exercise. Producing big waves with no resonance elsewhere may not lead to much. Angela Merkel was much criticised for what was perceived as a hesitant mode of politics. But we also could say that she - the physicist inside her - observed patterns of movements and actors' behaviour, until she—or public sentiment—found convincing evidence for decisions that usually framed—and sold—the inevitable. That felt to many as the opposite of a vision. But on the opposing end of political opportunities erratic, unilateral action also reveals complications even if it is done by the 'superpower'-type, or the 'big ones'. Will Xi Jinping's 'Belt and Road' proceed like a flying dragon, triggering enthusiastic developments along win-win corridors with Chinese characteristics? The question here is whether a unilateral multitude can be successful in the long run at all. That has become all the more doubtful since a new narrative entered the discourse.

Tipping points, as scientists explain, are putting life on earth at risk. They are an option, a potential, of every system in an environment. Tipping points in a certain field—climate, water conditions, species extinction—can be reached by developments that influence—and thereby change—a variable in the environment of that field. It is therefore not sufficient to observe a certain field. A multi-focal awareness is necessary and increasingly called for. Not only because this narrative fits quite well into anxieties related to a possible recurrence of the global financial crisis of 2008, but also because it may shape our understanding for non-linearities as an important factor to be considered for the framing of action in our scenarios.

The stability of systems is something international politics is certainly interested in. The narrative of 'tipping points' resonates here. And a lot of scenario-planning is done to reach an understanding of what could prevent societies from reaching their worst case scenario. But tipping points are also rather difficult to predict. Tipping points do not always coincide with the worst case scenario. A sub-system can reach its tipping point at almost any time, much before the worst case condition: even if an embargo is installed or lifted, or if tariffs, for example in food prices or interest rates- are increased. 

Imagine a mega city. The administration does not pretend to govern the entire system in any strict sense. It lays out a frame and has a certain monopoly over dealing with disasters and collective threats like earthquakes, for example. But cities can plan their development from scratch only to a very limited extent. A city administration needs an ability to anticipate, and as is said in German, 'to hear the grass growing'. An administration needs this responsive quality on all levels, to be a functional element in the system that we call global governance.

 

Methodologies

Science and policy need to develop instruments and concepts to grasp interdependencies on a new level of complexity and granulation. We observe not just pathways of societal and cultural developments but also patterns, in many fields, which are characterized more by their dynamics and less by structure.

Observation and analysis of fluid, complex structures over time have led to re-conceptualizations of methods and instruments. An example of this is the practice turn in International Relations (Gadinger) and International Law (Werner). Tanja Aalberts has developed the concept of transnational legal encounters as a vantage point from which to investigate the workings of international law as an embodied practice.


Re-flexibillization of regulation?

Thus, while in the political-legal sphere there is scope for interpretation, above all, at the interfaces of regulated—geographical and social—areas of application, regulation in interaction with digital technology provides an increasingly complete coverage of the actors, whereby flexibilization can be in the interest of the regulators themselves. Thus, promising innovations are accompanied by a possible temporary relaxation of regulatory requirements.

It seems as if new realms for manoeuvre and navigation are being established in the field of regulation. But only those who know the rules can make use of this, which explains the growing importance of experts and scientists. Knowledge here determines strategic operational power.

The South Korean government recently has begun introducing a regulatory sandbox model to boost innovation in certain fields. As Yonhap News Agency explained
 

a "regulatory sandbox"… will allow companies in new, innovative industries to operate free from excessive regulations for a certain period of time. (Yonhap 16-8-2018)


Does soft law reward soft power?

Regulatory creativity has an effect on compliance and is likely to stretch the ambits of soft law.
 

Soft law has a flexibility that distinguishes it from codified law. In general, there is more of an appeal to comply than an enforceable obligation to do so, which blurs the line between regulators and regulatees. (Quack)


In a international practise theory understanding, this brings the field of regulation closer to the analysis of bargaining, diplomacy and negotiation leadership. It may be worth looking at cases where combinations of epistemic and performative power play out.  

A recent proactive stance of regulators in developing regulatory sandboxes and the room for manoeuvre in legal encounters point in the direction of the increasing politicization of transnational governance, which generates pressure on expert-driven and technocratic fields, where
 

... actors not only struggle to impose their rule-setting authority but also need to obtain and sustain their epistemic legitimacy. (Quack)

The move away from unified global rules co-generates, as it seems, spaces for compliance and legitimation in a constant adjustment over time. Brexit, among many other things, may provide an example of that blurred line, although historians observe something familiar, since 'the EU has always been inventive in the application of rules' (Kaiser).


Sources

Tanja Aalberts, Thomas Gammeltoft-Hansen (eds.) (2018 ): The changing practices of international law. Cambridge, United Kingdom: Cambridge University Press.

Bueger, Christian/Gadinger, Frank (2018): International Practice Theory, Second Edition, Basingstoke: Palgrave MacMillan.

Djelic, Marie-Laure and Quack, Sigrid (2018): Globalization and Business Regulation, Annual Review of Sociology 44: 123-143.

Werner, W.G. (2017): Recall it Again, Sam: Practices of Repetition in the Security Council, Nordic Journal of International Law 86 (2), 151-16.

Parliament set to kick off extraordinary session, Yonhap News Agency, 16-8-2018.

Hyundai Motor given green light to set up hydrogen charging station in parliament, Yonhap News Agency,11-2-2019.