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Abstract:
The theory advanced is that precise rules more consistently regulate simple phenomena than principles. However, as the regulated phenomena become more complex, principles deliver more consistency than rules. A central reason is that the iterative pursuit of precision in single rules increases the imprecision of a complex system of rules. By increasing the reliance we can place on a part of the law we reduce the reliability of the law as a whole. Then it is argued that consistency in complex domains can be even better realised by an appropriate mix of rules and principles than by principles alone. A key choice here is between binding rules interpreted by non-binding principles and non-binding rules backed by binding principles. The more complex the domain, the more likely it is the latter that will deliver greater consistency. Robert Baldwin argues that the reason "Why Rules Don't Work" is that they are typically evaluated without reference to the context of their implementation. Hence we cannot understand when law is and is not consistently implemented by the police without confronting the fact that police culture is not a rulebook, but a storybook. In complex domains, when police, regulatory inspectors and judges enforce rules consistently, they do so as a result of shared sensibilities. Regulatory conversations that foreground obligatory principles buttressed by non-binding background rules is hypothesised to be the stuff of legal certainty on such complex terrain.

Abstract:
Jacint Jordana and David Levi-Faur have provided systematic evidence that, since 1980, states have become rather more preoccupied with steering and less with rowing. Yet non-state regulation has grown even more rapidly, so it is not best to conceive of the era in which we live as one of the Regulatory State, but of Regulatory Capitalism. It is argued that Regulatory Capitalism is not about neoliberalism, indeed that those who think we are in an era of neoliberalism are mistaken. The corporatisation of the world is conceived as a product of regulation and the key driver of regulatory growth, indeed of state growth more generally. The reciprocal relationship between corporatisation and regulation creates a world in which there is more governance of all kinds.

regulation, regulatory state, regulatory capitalism, corporatisation, neoliberalism

Abstract:
The sociology of punishment is seen through the work of its most prominent exponent, David Garland, as contributing useful insights, but less than it might because of its focus on societal choices of whether and how to punish instead of on choices of whether to regulate by punishment or by a range of other important strategies. While virtue is found in Garland's genealogical method, the problem is that branches of the genealogy are sawn off - the branches where the chosen instruments of regulation decentre punishment. This blinds us to the hybridity of predominantly punitive regulation of crime in the streets that is reshaped by more risk-preventive and restorative technologies of regulation for crime in the suites, and vice versa. Such hybridity is illustrated by contrasting the regulation of pharmaceuticals with that of "narcotics" and by juxtaposing the approaches to a variety of business regulatory challenges. A four-act drama of Rudoph Guiliani's career as a law enforcer - Wall Street prosecutor (I), "zero-tolerance" mayor (II), Mafia enforcement in New York (III), and Rudi the Rock of America's stand against terrorism (IV) - is used to illustrate the significance of the hybridity we could be more open to seeing. The weakness of a genealogical approach to punishment can be covered by the strengths of a genealogy of regulation that is methodologically committed to synoptically surveying all the important techniques of regulation deployed to confront an alleged social evil.

Punishment, Foucault, Garland, regulation, police

Abstract:
Zero tolerance and public shaming are increasingly advocated for both crimes of the powerless and crimes of the powerful. In this essay we argue against zero tolerance with respect to both kinds of crime. However, we defend naming and shaming with respect to crimes of the powerful. Part I of the paper begins from the assumption that both zero tolerance and naming and shaming are policies that do not merit serious consideration with crimes of the powerless. It then goes on to consider harder questions: first whether zero tolerance and then naming and shaming have a place with crimes of the powerful. Drug abuse is used in Part II as a case study to explore these distinctions. It will be contended that zero tolerance is a prescription for increasing drug abuse, but that naming and shaming is essential to the prevention of drug abuse. This conclusion is reached by viewing the drug problem differently from conventional criminological analyses in a radically reconfigured context as a corporate crime and organizational regulation problem.

zero tolerance, naming, shaming, Politics of Crime, drug abuse, corporate crime, organizational regulation

Abstract:
Both the war and criminal justice models are seen as too crude, particularly in their theory of deterrence, for responding to the problem of global terrorism. An alternative regulatory model is advanced that overlays the public health concepts of primary, secondary and tertiary prevention with the ideas of containment (of injustice) and enlargement (of justice). An interconnected web of controls might enable an overdetermined prevention of terrorism that, in spite of its redundancy, might be more cost-effective than the war or criminal justice models because the principle of responsiveness means parsimony in resort to coercive modalities of control that are expensive. It is possible to have an evidence-based approach to regulating rare events like 9/11 terrorism by applying the principles of evidence-based regulation to micro-elements that are constitutive of macro-disasters. Viewed through this lens, support for the war on terrorism is not evidence-based but grounded in other public philosophies like retribution and arm-chair utilitarianism.

critically, war, model, criminal, justice, combating, terrorism, prevention, justice, injustice, control, prevention, coercive modalities, retribution, utilitarianism, deterrence

Abstract:
Restorative justice jurisprudence, it is argued, requires upper limits on sanctions but not lower limits, and rejects the notion of proportionality. It involves an active rather than a passive conception of responsibility. Finally, restorative justice requires contextual justice more than consistent justice. The principles that ought to inform restorative justice practice are many rather than few. An account of what those principles might be, informed by the author's attraction to a republican theory of restorative justice, is advanced.

Restorative, Jurisprudence, Consensus, Limits, punishment, enforced, proportionality, retributivists, compliance systems

Abstract:
Globalization is seen as as shaping Australian history since Eueopean colonization. In particular, global movements of people are fundamental to understanding Australia as a governmental and convict colony as opposed to a corporate colony. Australia is conceived as an experimentalist state and a regulatory state in the shape of its institutions. The implications of viewing Australian institutions in this way are explored from the perspective of exclusion and egalitarianism in Australian society.

globalisation, Australian Institutions, parables, clever country, stupid sountry, global, population movements, global panel debate, reintegrative, restorative, justice, procedural, exclusion, injustice, stigmatization, crime, labour, dynamics, capital, New Regulatory State

Abstract:
Few institutions globalized more quickly to every nation on earth than the one Sir Robert Peel invented in 1829. The argument of this essay is that the transplantation involved has very often lacked contextual attunement to local conditions. Consequently, a great many nations have police that are promoters of tyranny, privilege and corruption rather than defenders of liberty. The particular argument of our contribution is that there has been excessive transplantation of urban policing models into societies where village life is more the norm. In this regard we suggest there is something to learn from pre-Peelian police in the first world and colonial policing in the third world.

New Guinea, Colonialism, Police, Rural Crime

Abstract:
Rewards are less useful in regulation than they are in markets. Firms respond to market incentives because most markets are contestable. In markets that are not oligopolies it makes more sense to adopt a competitor mentality than a fixer mentality. Regulatory power in contrast is mostly not contestable. Firms are therefore more likely to adopt a fixer or game-playing mentality. Reactance to regulatory control through rewards is likely to be greater than reactance to market discipline. If a responsive regulatory pyramid is a good strategy for optimizing compliance, then punishment is more useful in regulation than reward. Reward at the middle of a regulatory pyramid brings about a moral hazard problem. Under certain limited conditions reward can be useful at the base of a regulatory pyramid. These conditions are transparent, easy measurement of the performance to be rewarded, an imbalance of power such that the regulatee is weak in comparison to the regulator, and an absence of weapons of the weak for subverting a regulatory system to which the weak are subject. Absent these conditions, and we cannot expect the undoubted efficiency advantages of a market where regulatory outcomes can be traded so that they are secured where the cost of doing so is least. While, in general, punishments are more useful to regulators than monetary rewards, informal rewards (praise, letters of recognition) are rather consistently useful in securing compliance.

Abstract:
The most general lesson of the crime prevention literature is taken to be that repeat victimization and repeat offending are concentrated in time and space; early intervention to prevent wider inflammation of such hot spots is more effective than reactive general deterrence (as in economic models of crime). That prescription is applied to how the 2008 financial crisis might have been prevented and how the crimes of Enron and Arthur Andersen might have been tackled to ameliorate the 2001 crisis. Negative licensing based on walking the beat and kicking the tyres at financial hot spots, with reduced reliance on economic models of risk, is one remedy advocated. Then, the threat of negative licensing might be used to motivate restorative justice that transforms the ethical culture, particularly the bonus culture, of banks.

global financial crisis, regulation, financial crime, restorative justice

Abstract:
The most general lesson of the crime prevention literature is taken to be that repeat victimization and repeat offending are concentrated in time and space; early intervention to prevent wider inflammation of such hot spots is more effective than reactive general deterrence (as in economic models of crime). That prescription is applied to how the 2008 financial crisis might have been prevented and how the crimes of Enron and Arthur Andersen might have been tackled to ameliorate the 2001 crisis. Negative licensing based on walking the beat and kicking the tyres at financial hot spots, with reduced reliance on economic models of risk, is one remedy advocated. Then the threat of negative licensing might be used to motivate restorative justice that transforms the ethical culture, particularly the bonus culture, of banks.

Global Financial Crisis, Regulation, Financial Crime, Restorative Justice

Abstract:
Aggressive tax planning is found to be a cyclical phenomenon in Australia and the United States. While people strongly disapprove of it, mass participation in aggressive tax planning occurs during cyclical upswings, probably at a level involving well over 100,000 Australians in illegal schemes during the late 1990s. We analyse these cycles as a market in the vice of tax scheme promotion that is countered by widespread virtuous sentiments in the democracy. Community attitudes to tax cheating are therefore not seen as the problem, but as crucial to its solution. There is a democratic demand for tax system integrity. This demand creates a market for honest tax advice professionalism. Sophisticated regulators can use these community attitudes as the crucial resource for flipping markets in vice to markets in virtue. Cycles occur because markets in virtue and vice dominate at different periods of history.