Saturday, January 28, 2017

Notes on 'the State' and the Regulation of Space

The state represents the quintessential meeting of regulation and geography.  The state was founded as a device for unifying large tracts of geography (Herz, Tilly).  And even today, it is one of the very few regulatory spaces that defines itself geographically.  As the same time, particularly since the early part of the 19th century, the state is an entity that is often said to be defined and created by law.

All this makes the state a bit of a paradox.  In seeking to unify space, the law that identifies and defines the state effectively denies the material existence of distance.  It is, in the words of Wesley Pue (1990), and “anti-geographical faith”.  But at the same time, the state is all about distance.  Distance is the state’s biggest resource – e.g., more distance means more territory means more people and tax revenue -- and at the same time its biggest threat – e.g., more distance means more territory means greater difficulty in unifying that space.

Along these lines, it might help to identify and contrast a couple of concepts.  First, we can distinguish between two different kinds of space.  One is a space in which there is internal variegation of some sort.  For convenience, we will call this ‘space’.  The other kind of space, obviously, is one in which there is no internal variegation – a space that is isotropic.  That kind of space we will call a territory. 

I also want to introduce the idea of a ‘regulatory space’.  A regulatory space delineates the entities that are subject to some kinds of regulatory regime.  A regulatory space consists of three elements.  One is the regulatory subject – what aspect of society is the regime intended to regulation; a second is regulatory purpose – what is the regime seeking to do to that particular aspect of society; and the third are regulatory boundaries – where does the regulatory authority end?  How do we determine who is subject to and who is not subject to the regulatory regime.

When the regulatory space is delineated territorially, we can – following Richard Ford – refer to it as a ‘jurisdiction’.  According to this vocabulary, a legal ‘state’ is a particular kind of jurisdiction.  Or, to be more precise, the state is a collection of jurisdictions focusing on a plethora of regulatory subjects

As noted above, the various jurisdictions that constitute a state involve a paradox: the law is innately isotropic whereas the space it regulates is frequently variegated.  Along these lines, we can distinguish between four kinds of jurisdiction, each identified by the intersection of two vectors.  The first vector involves the distinction between isotropic and variegated regulatory spaces.  The second vector involves the malleability of the regulatory space is.  A regulatory space is malleable to the extent that its regulatory subject is susceptible to regulatory manipulation, i.e., to the extent that the regulatory subject is susceptible to juridification.  On the other hand, some kinds of social practices are so deeply embedded in the social fabric that they can be highly resistant to juridification.  We will refer to this as ‘innate’ regulatory subject matter

Along these lines, we can distinguish between four kinds of jurisdictions:

Kinds of jurisdiction:


Some thoughts:
  • Regulatory jurisdictions:  National sectoral industrial activity seems particularly regulatory in nature, particularly in industrial societies.  Examples would include the national banking sector regulation; market competition regulation, national taxation systems.
  •  Synthetic jurisdictions:  Synthetic jurisdictions are most often located in a particular time, as their amenability to juridification means that they will often evolve into regulatory jurisdiction.  The jurisdiction created by interstate transportation regulation in the United States during the late 19th and early 20th century turned out to be synthetic, it started out being variegated, but by the 1920s had become regulatory. 
  • Organic jurisdictions:  A municipality is generally a much more organic jurisdiction than is the state.  This is reflected in the different way in which states regulate municipality, what Michael Mann called infrastructural regulation as contracted again ‘rule-of-law’ regulation (what he called ‘despotic’ regulation).
  • Pluralist jurisdictions:  While national industrial sectors are largely regulatory in character, the national economy itself is invariable pluralist.  Many areas of national social regulation is also pluralist. 

As a form of regulation, law presumes that its jurisdiction is regulatory – i.e., that it is isotropic, since the law is innately isotropic, and that it is malleable, because the whole regulatory purpose of law is to change some aspect of its regulatory subject.    But where the jurisdiction is not isotropic and / or not malleable – what we will call ‘problematic’ jurisdictions, its provokes what Gunther Teubner famously termed a regulatory trilemma – a divergence between the social conditions presumed by the regulation and the social conditions that are actually manifest in the social space being regulated.  To recall, there are three possible responses to such a condition, each with a distinct set of problems.  One is juridification, where the actual social change to fit the presumptions of the law, a response that threatens the vitality of the society; the second is socialization, which is where the regulatory system adjusts to social reality, a response that threatens the integrity of the law; and the third is mutual indifference, a condition where the regulatory system and the social system simply ignore each other.

Each one of these possible responses corresponds with a different one of the problematic jurisdictions.  Thus, when confronting a regulatory trilemma, synthetic jurisdictions are most likely to become juridified and organic jurisdictions are most likely to experience a socialization of the regulatory system.  Pluralist jurisdictions will experience ‘unintended consequences’, as the legal system will produce different results in different spaces.
It should be noted, however, that these jurisdictional attributes can vary from state to state, and even within a state they can change over time.  In particular, the process of industrialization seems to convert many economic-regulatory jurisdictions that are pluralist in pre-industrial societies into regulatory jurisdictions as industrialization progresses.  An example of this is found in the rise of the (centralized) ‘regulatory state’ in late 19th and early 20th century US.  At the same time, Karl Polanyi’s notion of a ‘double movement’ suggests that the opposite is likely to be true as well.  Thus, at the same time as the US was experiencing the raise of the regulatory state, it was also experiencing the rise of a national, but pluralized, civil society (see, e.g., the rise of labor unions), and the emergence of new pluralist forms of governance that Michael Mann has termed ‘infrastructural power’ – two kinds of regulatory spaces that for the most part do not exist in lesser-industrialized states.

 From the perspective of the state, the quintessential regulatory problem lies in how to regulated the state as a whole given the wide diversity of problematic jurisdictions it is likely to encompass.  As a general observation, we can hypothesize that each kind of problematic jurisdiction is likely to provoke a distinct regulatory strategy:  organic jurisdiction are likely to be regulated through the use of intrastructural power; synthetic jurisdictions are likely to be regulated through juridification; and pluralist jurisdictions are likely to be regulated through a combination of decentralization, on the one hand, and what I elsewhere have termed ‘political regulation’ on the other.

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