یکشنبه ۲۵ شهریور ۰۳ | ۱۶:۴۶ ۱۳ بازديد
did not fit in well with the institutional standards that figured as
“appropriate” formulas during the 1990s and concentrated more
on the idea of political independence.
These standards were transmitted by networks of actors moving
in an ever more globalised world, through various sectoral and
occupational dimensions. The examples taken were the Anglo-
Saxon traditions and the particular adaptations carried out by
European countries from the 1980s. This was the moment of the
confirmation of the regulatory state indicated by G. Majone when
analysing the particular constrictions in the institutional design of
European Union political bodies. The paradox is that, in both
cases, the independence criterion adopted for the regulating
authorities represented a (possibly satisfactory) response to the
highly specific conditions of their respective forms, which led to
the formation of an increasingly fragmented model of the state.
Nevertheless, given the central position of these countries in the
1990s, the formula of exception became the model to be followed
in the context of the regulatory reforms that spread throughout
the world, generally stimulating intense institutional change. It
may be concluded that, in combination with the symbolic weight
of adopting that element of the “appropriate”, the success of the
diffusion lies in the extraordinary flexibility of the processes of
adapting the new regulatory authorities to national situations,
with criteria of political independence being incorporated into
the different institutional designs adopted. Components such as
the selection and appointment systems for those in charge of
regulatory authorities are good indicators of this flexible adapta-
tion and, undoubtedly, there many different formulas. This facili-
tates the adoption of these new institutional forms in conditions
that vary considerably in relation not only to the institutions
present in each country but also international limitations. Accord-
ingly, the multiplicity of institutional constellations has become
even greater, in the light of the variety of adaptations. Moreover,
in the face of a traditional, highly hierarchical model of the state,
we are now encountering a gradual change in state structures,
with distinct degrees of internal tension and fragmentation.
It should not be forgotten that the practices used in state-build-
ing are also strongly affected by different ideological ideas and
methods regarding how public administrations should be organ-
ised. So we see that many reforms based on the creation or strength-
ening of independent regulatory institutions were spurred on by
a common cultural scheme that considered this kind of institu-
tional form the most appropriate for carrying out regulatory tasks.
The various influences exercised by the new public management
planning and the legislative proposals derived from agency and
incentive theory, which emerged from economic theory, have had
an important role in the proposition of conceptual models for the
definition of these new conceptual models6 . For example, the idea
of delegation arises from this context, in the sense of guaranteeing
regulatory authority leaders independence in their decision-mak-
ing and freedom from possible interference by the executive or
legislative branches. That idea may, however, be firmly claimed by
collective professional groups in different sectoral areas, for whom
these arguments would represent a sphere of protection in the
decision-making in their policy field.
The aspiration to institutional independence
We know that regulatory agency independence as a whole is
a myth, since there are many degrees of independence. If all the
countries in the world are considered together, on a scale from
1 to 100, we can detect a high level of variation, in which there
6 Christopher Hood, The Art of the State. Culture, Rhetoric and Public
Management, Oxford University Press, Oxford, 1998
are some countries with highly independent agencies and others
with agencies possessing very little independence. For example,
it is well known that the independence of the regulatory authori-
ties created in northern European countries is greatly limited.
This is because they have a different regulating agency tradition
and have not adopted the US model with the same vigour as
certain countries in southern Europe or Latin America. The issue
here is not only a problem of political independence but also of
the breadth of the responsibilities attributed. There is also great
variation among countries. For example, there are agencies in
Spain with particularly reduced powers, almost to the point of
their being mere consultants. One aspect that can be seen to be
highly present in this whole enormous explosion in regulatory
agencies that we observe in general is the topic of professional-
isation. Regulatory agencies were not created to be filled with civil
servants and the work positions have been occupied by another
kind of professionals — economists — who possess a highly spe-
cialised knowledge of the sector and regulation and closely iden-
tify with the sector, with which they have a very direct relation-
ship. State professionals reflect a more generalist profile. This
professionalisation is a difference that can be observed every-
where and involves far stronger international connections with
sector enterprises, on account of the professional knowledge of
the sector. This characteristic is acutely present in all countries:
it is creating a new type of government that is formulating numer-
ous questions and new dilemmas such as the issue of control
between these professional groups, with their protection and
independence, and traditional state institutions. This is some-
thing new and it will possibly take a few decades to understand
how this new model of the state — an impressive phenomenon
for its extent and comprehensiveness — fits in.
On the issue of the regulatory state it is important to analyse
the dynamics of the growth in the number of agencies and the
quantity of sectors in which they have sprung up, not only in
privatised sectors, since this growth has extended far beyond
these into very different sectors. In all cases, there is regulation
in various state sectors and, if we asked specialist staff if they
would like to have an independent agency, the response would
be positive, including in the health sectors. What is important
here is the distinction made above between social and economic
regulation. Independent regulatory agencies were created
where it was intended to create or stimulate markets. The basic
principle was not to safeguard the functioning of the market
but, rather, to guarantee quality, risk reduction, values etc. The
motivation to create regulatory agencies was intense and, on
many occasions, the regulatory capacity was strongly maintained
within traditional state structures. This element stresses the
relationship between the creation of independent regulatory
agencies and the creation of, or the will to stimulate or super-
vise, specialised markets — a relationship that it is important to
take into account when the topic of democratic control over
independent and autonomous regulators is assessed. We should
remember that the discussion is not so much about how the
regulators are controlled but how the market is controlled
democratically; and it is here that we find the basic problem.
Because there may be regulation by a ministry that is completely
captured by the companies in the sector, in which case demo-
cratic control would be purely formal. In practice, there would
be no democratic control by those who would be controlling the
sector (and it happens in many cases): the enterprises would be
dominant. On many occasions, the problem does not lie in
formal or non-formal independence, but in the capacity for
public intervention in one form or another and the ability to
govern, guide or correct markets, when such action is consid-
ered of public interest. Accordingly, this should be the focus of
this discussion rather than purely formal independence.
There are numerous studies on independence which distin-
guish between formal independence and real independence.
With regard to the former, various dimensions are normally con-
sidered, which have to be aggregated to arrive at an index of
independence: on the one hand, there is the appointment of
those in charge and, on the other, the organisational aspects of
the body or institution. Then there are the aspects of the financ-
ing or the agencies’ capacity to impose sanctions. And the control
aspects: who controls the regulatory entities? All these aspects are
elements of independence. Finally, there are those who devote
themselves to studying this question in quantitative terms, pro-
ducing indices to demonstrate which regulatory agencies are the
most independent, in a comparison of countries and sectors.
These dimensions should not be forgotten because, if only one
of them is considered, e.g. who appoints the regulator or if they
do so for an indefinite period or not, a distorted view of the
degree of independence may be obtained, since aspects such as
financial independence may have interactions with the question
of the independence that is related to the appointment. It is
necessary to view formal independence as a multidimensional
context and, then, real independence, which is much more dif-
ficult to measure because the formal aspects may all seem highly
independent but not be in practice. There are many examples of
this in Latin America and a certain number in Europe. How is real
independence measured? There are studies that carry out this
task, identifying the preferences of the prime minister, the gov-
ernment or parliament, the preferences applied by the regulator
and the companies’ preferences, and they try to understand
which are the most similar. In a historical sequence, this may also
show how the regulator leans more to the independent compo-
nent or that of the companies or government, depending on the
formal aspects. When we speak of independence, we must bear a
series of distinct dimensions in mind, as a multi-dimensional
concept is being dealt with and, accordingly, a certain confusion
is sometimes generated.
In all cases, there is no doubt that this idea decisively inspired
numerous designs for regulatory authorities established in the
1990s and also represents an important aspect of the political
culture of that time. Academic interpretations of the rise of inde-
pendent institutions have tended to be converted into ex-ante
explanations, e.g. the argument that the existence of independ-
ent regulators increased the credibility of regulatory policies,
thus facilitating the attraction of new inversions (on the assump-
tion that the policies would be stable and consistent, on the fringe
of influences derived from the political and electoral struggle).
Especially in economic areas where processes of privatisation and
the opening-up of markets are produced in association, this type
of argument was highly influential, though only to show the re-
spective international community, formally, that all the necessary
changes had been made to overcome the infirmities of earlier
historic periods.
Economic regulation and social regulation
On the topic of social regulation and economic regulation, the
literature offers a highly classical distinction that describes social
regulation as regulation in sectors where the principle leading to
public intervention is not an economic principle connected with
making the market function, but one involving the protection of
social and natural interests, e.g. the environment, public health or
pharmaceutical products. This is the idea of social regulation, ap-
plied in these sectors with regulation to protect the public. Thus,
the principles are not economic and may even seriously contradict
those that are — a situation that leads to the other topic: that of
gaining an understanding of what prevails when this contradiction
exists. The idea defended is that social regulation could be ex-
tended to other fields such as the social sectors. But that is another
topic. In the USA in the 1960s and 1970s, when social regulation
was applied to the environment, food sectors and work, a conflict
arose between industries that did not want this kind of regulation
and consumer associations and trade unions, who supported the
introduction of this kind of social and non-economic regulation.
Some authors understand that part of the conservative reaction of
the 1980s, following the advance of social regulation, was from the
business sectors that were protecting themselves in the areas that
this non-economic regulation was entering.
In social regulation, the measures for regulating society are
not focused on the creation and governance of markets. Accord-
ingly, if regulatory agencies are set up with the specific target of
creating and governing the market, what do these institutions
mean for other types of regulation? For these areas of regulation
that are not really economic, it is unclear if the regulatory agen-
cies are capable of performing so well. This is an important area
of debate and analysis as we do not exactly know the best ways of
creating institutions to foster areas of social regulation where
market efficiency is not the most highly valued objective. For
example, what institutions are necessary to prevent life-cycle risks,
to guide coordinated behaviour, or separate certain resources
from market assignation? All these regulatory objectives are not
economic regulation and there is no specific kind of institution
designed to work in this area and implement regulation. So we
find that, in certain places and certain countries, this type of
social regulation is still in the hands of normal, traditional min-
istries and, in other cases and other countries, we find it in new
institutions that are like regulatory agencies for economic ques-
tions but are not, in fact, focused on governing the market.
It is undoubtedly important that we manage to make the
markets efficient, make them function well and eliminate market
failures. Regulation may be the way to attain this objective and, for
this reason, may be favourable to society. But there is another
topic which it is necessary to ponder, that is to what extent we wish
to resolve all social problems through the market and whether
other social problems exist that demand public intervention, but
we consider that is not necessary or is not fitting to create a market
or to maintain a market for them all. Clearly, the alternative is
non-regulatory public policies, the traditional alternative. That is
the way it was, with subsidies, transfers, etc., generating the distri-
bution. This is fine and, certainly, may continue in many fields.
But I insist that, between economic regulation, which seeks effi-
ciency, and the distribution and redistribution of public sector
resources, there is room for social regulation. Examples are blood
and organs in the area of medicine. They are not a market. There
is an assignment system in health, based on non-economic regu-
latory criteria, according to needs. But in some countries, for
example, assignment criteria exist and assignment is sometimes
regulated with educational materials, which are not necessarily
offered by the public sector but by private or semi-private bodies;
but there is regulation to define what the system of assignment is.
These are examples of social regulation where it is considered
that, socially, is not appropriate that a market exists or that eve-
rything is controlled by the market, however efficient it is, be-
cause there are social values that conflict with the logic of the
market. This is an important issue for debate and there is room
for a kind of regulation that is distinct from economic regulation.
Conclusions
Following this explosion in regulatory agencies and regulation
instruments, we observe that the structure of the state is changing
in many countries. We have many little islands of public gover
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