Intersection of Rights and Regulation: New Directions in Sociolegal Scholarship

Abstract

This paper is the introductory chapter of an edited volume of chapters by the same name, which will be published in 2007. Rights and regulation each provide a way of framing core preoccupations of sociolegal scholarship. The two are yoked more often in opposition than in concert; indeed, regulation has often been framed as a social practice that restricts rights. This resonates with a tendency to conjure up stereotypically different images of research questions and topics that typify each of these areas. Rights scholarship is concerned with mobilization, social change, questions of identity and culture, frequently taking the position of those who are disadvantaged or oppressed through judicial avenues, using claims of individualized entitlement as a point of departure. Regulation scholars are more typically concerned with questions of economic efficiency, the evaluation of results, rational design of institutions and bureaucratic or discretionary modes of pursuing generalized public interests.

But if rights and regulation tend to be associated with contrasting forms, logics, ideals and values, there are ambiguities in this opposition. It may reflect parallel scholarly dialogues, or it may be rooted in inherent formal or normative properties of rights and regulation, or it may be a consequence of particular substantive political contexts that encourage groups to frame their own practices in particular ways - whether as rights-based or regulatory. This paper challenges stable oppositions between rights and regulation on all these fronts. Its main argument is that rights and regulation form overlapping and complementary aspects of processes of disputing and rule-elaboration that can be captured by two well-known triads - naming, blaming and claiming and rule-making, monitoring and enforcement. This approach both challenges the notion of contrasting logics of rights and regulation but also opens up interesting empirically-inspired questions at their intersection. It suggests that there is a powerful, albeit varying, interdependency between rights and regulation: one that can be clarified by encouraging more work in regulatory scholarship on naming, claiming and blaming, and more work in rights scholarship on rule-making, monitoring and implementation.

The paper has four parts. First, it sketches a brief intellectual history of the strands of scholarship that frame this introduction, presenting rights and regulation initially as parallel scholarly dialogues, and then viewing them through a broad lens of disputing as complementary and interdependent. Secondly, it poses a wide range of questions that focus on different aspects of the rights/regulation interface. Third is an overview of the individual chapters in the rest of the volume, which come from a variety of disciplinary approaches within law and society (law, geography, sociology, political science, history and anthropology). Finally the paper proposes three key themes that emerge cumulatively from the chapters and that suggest future research directions.

This paper will in its final form become the introductory chapter of an edited volume of chapters to be published in 2007 by Ashgate Press, with the same title as this opening essay. A brief table of contents and notes on the other contributors is appended at the end of the paper. The volume of essays originated in a four-day Summer Institute for advanced postgraduate students and early career academics in 'law and society' and socio-legal studies, held in Oxford in July 2005. The contributors comprise 9 of the original 24 participants. The Institute was sponsored by the Law and Society Association based in the US and by the UK Socio-legal Studies Association. It was the first of a consortium of three linked Institutes, all organised around the theme of the intersection of rights and regulation. The second Summer Institute took place in Johannesburg, South Africa in July 2006, and the third will take place in Amherst, USA in June 2007.

Keywords: rights, regulation

JEL Classification: K19, K20