Regulation (Un)Done: Introduction

Regulation is facing calamitous times. U.S. President Trump’s recent re-election and the appointment of business tycoon Elon Musk as head of a new Department of Government Efficiency, centrally concerned with slashing “excessive” regulation, threaten to sound the death knell for many of the remaining regulatory safeguards that protect people against avoidable harm in a capitalist world that can seem out of control. Indeed, much regulation originated in disaster. Consider the dramatic change in offshore health and safety regulation that followed the Piper Alpha disaster in the North Sea, which claimed the lives of 167 offshore workers in July 1988 when gas leaked from a faulty condensate pump, leading to several devastating explosions. A subsequent public enquiry and the resultant Cullen report brought a raft of recommendations for improved offshore regulation. Fossil companies operating offshore were now required to become wholly accountable for the integrity of their installations and work environments, and to prioritise safety over profit. Similarly wide-ranging regulatory reform happened in the wake of the 2008 financial crisis—a crisis, many argue, that was itself the product of failed regulation.

Because of regulation’s ability to temper private interest and promote the public good, many anthropologists have been partial to more regulation rather than less. Anthropologists are known for their sustained critique of capitalism, unbridled extractivism, state capture, growing inequality, and market actors’ (futile) attempts to turn vice into virtue (remember, “Greed is good!”) – that is, those features of capitalist development that seem to call for regulatory checks. Regulation, in this view, breaks down popular aspirations into tangible actions. It is implemented by designated government agencies, professional boards, and corporate departments charged with the work of molding and monitoring the conduct of others. But regulation alone does not always bring the desired results, and regulators can choose to be willfully ignorant (McGoey 2007). China, for example, responded to the Paris Climate Accord with aspirational policy pledges to reach peak CO₂ emissions before 2030, and peak coal consumption by 2025 (Climate Action Tracker). However, this has not stopped the government from approving new coal-fired power plants. Or we can look to Scotland, which recently declared its climate targets to be simply “out of reach”, showing how easy it is to undo regulatory aspirations.

Clearly, a focus on headline policies and regulatory rulebooks can readily miss out on the diverse actualities of doing (and undoing) regulation.

Situated within cultures of accountability (Strathern 2000), regulation may simply encourage theatres of virtue that grant harmful industries a continued “licence to operate” (Benson and Kirsch 2010). And while some regulation seeks to limit power and the pursuit of self-interest, it can also be conservative, aimed at maintaining the status quo of growth-based capitalism. The difficult balancing act—where regulatory actors negotiate between private interest and shifting conceptions of the public good—is reflected in criticisms of regulation “gone too far” and “stifling business” (see figure 5). Regulatory overload can put well-resourced multinationals at an advantage and drive small and medium enterprises out of business. Clearly, a focus on headline policies and regulatory rulebooks can readily miss out on the diverse actualities of doing (and undoing) regulation.

Other anthropologists, however, have been more circumspect of regulatory rule not least because of its complicity with state power, and its tendency to collapse categories of difference and push toward uniformity. Without a doubt, regulation can help build trust in contexts characterized by opacity, misinformation, and unpredictable risk (Weichselbraun et al. 2023) as well as bolster public legitimacy, achieve collective goods, and furnish hopeful imaginations of the future (Bear and Mathur, 2015). However, state-led definitions of the public good (Brown et al. 2021) can be experienced as partial, contentious, or even repressive attempts to shape the world. They frequently work against cultural difference, disregard subaltern struggles, and reproduce colonial and broader secular and normative forms of scrutiny, standardization, and control. As a mode of state governance, regulation can seem benign—“guiding”, “steering”, or “nudging” people to do better or act predictably. Yet, it often interlocks with violent, racialized, gendered, and class-based forms of power (Browne 2015).

Regulation is done—and undone—as much within government agencies as within corporations.

Importantly, though constitutive of the spectacle that calls the state into being, regulation is no longer a state prerogative. Rather, as the contributions to this thematic thread show, it now involves a variety of business and international governmental agencies, operating as if unbounded by territorial imaginaries. Regulation is done—and undone—as much within government agencies as within corporations. Its logics and procedures implode the conceptual and practical boundaries between state, market, and technoscientific expertise. Regulation’s frequent appeals to science, rather than suggesting a necessary or singularly suitable course of action, may be used to hide arbitrariness and bias (Bowker and Leigh Star, 1999; Brice et al., 2022). It operationalizes standards and limits that—deliberately or implicitly—tolerate pervasive environmental destruction and exploitation at the expense of those most marginalized (Liboiron 2021). It can perpetuate dominant forms of power in other ways, too, for example by encouraging forms of private ownership in the name of achieving ostensible goods, such as nature conservation, while discounting established local lifeways (Finney 2014), or by suppressing certain urban livelihoods to further the interests of the wealthy (Roy, 2005; Tucker and Anantharaman, 2020).

The contributions to this thematic thread stay with these ambivalences to understand regulation’s power to bring significant change, but also its tendency to reproduce the status quo and potentially narrow notions of the public good. They suggest new possibilities for ethnographically-driven inquiry into what some deem a historical moment of “regulatory capitalism” (Brathwaite 2008), framed by the problematic corporate internalization of supposedly (self)regulatory functions (Benson and Kirsch 2010; Baldwin et al. 2011), by the uneven translation and borrowing of regulatory forms across national, linguistic, and cultural borders (Türem and Ballestero 2014), and by an uneasy entanglement of state, corporate, religious, moral and technoscientific modes of epistemic power (Bond 2022)—each presenting different affordances. The papers also explore regulation beyond those prominent corporate and institutional worlds and show how it reaches into the most intimate domains of professional ethos, reproduction, family and health.

In this perspective, there is not just one regulatory modus operandi, and regulation is not simply an execution of rule. The accounts gathered here show how bureaucratic processes can shape individual and collective lives down to the most intimate detail and in unpredictable ways. They also point to the important role of forms of discretion (du Gay and Pedersen 2020), anti-strategy (McGoey 2007), mediation, and differentiation that regulatory practice entails. Those doing the regulating—just like those being regulated—bring their own beliefs, aspirations, utopias and desires to the task (Billaud and Cowan, 2020), and occasionally find them thwarted.

In short, regulation is no longer a boring topic for anthropologists (van Eijk 2018)—if it ever was. The authors here step beyond institutional, discursive and legalistic approaches prevalent in much regulation research. They explore how regulation gathers a variety of actors, including not just state regulators, tasked with its implementation, but also corporate administrators and consultants ensuring adherence to the rules, and a host of mediators operating within an ever-increasing regulatory industry.

One prominent theme in this thematic thread is the antithetical trends toward deregulation and re-regulation, and their diverse effects.

One prominent theme in this thematic thread is the antithetical trends toward deregulation and re-regulation, and their diverse effects. Sandy Smith-Nonini examines how recent, extreme winter weather events in the US have heightened scrutiny of deregulated electric utilities built around futures markets. Despite promises of lower rates and sustainable power, deregulated systems have increased both economic and social risks during high-demand periods due to gas price manipulation and other vulnerabilities in the supply systems.

By contrast, Caura Wood draws on her work as an Environmental, Social and Governance (ESG) and Sustainability practitioner in Alberta’s oil patch to track the expanding inventory of regulatory objects, which resulted from requirements to consider First Nations’ Treaty 8 rights in the planning operations of oil and gas companies. Wood asks whether such newly created ethical spaces and efforts at what Mi’Kmaw Elder, Albert Marshall, describes as ‘two-eyed seeing’ might allow for a joint healing of the land and, with this, greater energy justice and Indigenous reconciliation.

Amanda Kearney’s contribution similarly attends to the shifting epistemic bases of regulatory practice and explores what it would mean to embrace uncertainty in the regulatory process. Drawing on applied research instructing expert regulators in cross-cultural ways of knowing the sea around Australia, Kearney argues that anthropological insight can help regulatory bodies with decision-making powers embrace a plurality of knowledges, especially on matters that affect cultural groups differently.

Regulations can have bodily and affective dimensions, including the promise of control and predictable outcomes, which can apply well beyond corporate self-image. Stephanie Postar‘s account of Tanzania’s Atomic Energy Commission’s social media shows how the regulator uses popular culture to instill trust in institutional operations. Regulatory power and procedures are heralded to the public by laudatory songs about the Commission. The songs render atomic energy as modern, well managed, and aligned with desired, common visions of the future, and eclipse their political contentiousness.

Gustav Kalm explores how hospitable and attractive regulatory environments have become the holy grail of economic strategy in countries such as Guinea-Conakry. Ironically, perhaps, rather than leading to greater differentiation (or a marketing strategy focused on Unique Selling Points), the effect has been one of increasing homogenization, where countries vie for foreign investment with almost identical, empty slogans.

Arthur Mason follows the work routines of oil and gas data analysts who repackage corporate information through proprietary algorithms for investor clients. He shows how the small movement of a chair in the analysts’ office reflects an effort to achieve a sense of aesthetic legibility for the data. This involves disaggregating what analysts consider “client-interest information” from the regulatory framing of assets—that is, a filtering out of regulatory information. The movement of a chair thus tells a bigger story about dependencies of regulation and economics in the context of oil and gas trading.

The contributions by Rams, Perkins and Bolt zoom in on the apparent gaps that open between regulatory aspirations and practice. Dagna Rams explores the implementation of new regulation, specifically an EU Corporate Sustainability Directive (CSRD) aimed at addressing regulatory arbitrage—that is, corporate avoidance strategies that tend to exacerbate global inequalities through the outsourcing of harm. New regulation, however, is met with ambivalence in corporate cultures where fresh demands for demonstrating so-called intangibles such as “reputation” and “transparency” place an increased burden on under-resourced and over-worked sustainability and compliance officers.

Janet Perkins reveals how government efforts to regulate private maternal health care in Bangladesh centre on moral claims and on a tenuous state/economy divide. Although regulation aspires to standardize these services across providers, its regional implementation is determined by existing political networks of patronage rather than compliance. As a result, regulation hides the creative work that make maternal health technologies work in practice and fails to generate the desired health outcomes.

Last but not least, Max Bolt examines the fractured promise of legal access and equality in post-apartheid South Africa through the lens of property inheritance and its associated legal-administrative system. In this context, the figure of the executor, acting in a fiduciary role to protect the interests of others, becomes pivotal, embodying the fractures and constraints of an under-resourced administrative system and its (failed) regulatory aspirations.

Featured image: Regulation Undone, created using Chat GPT.

References

Baldwin, R., Cave, M., and Lodge, M. 2011. Understanding regulation: Theory, strategy, and practice. Oxford University Press: Oxford. 

Bear, L. and N. Mathur 2015. “Introduction – Remaking the public good: A new anthropology of bureaucracy”. In: The Cambridge Journal of Anthropology 33(1): 18–34.

Benson, P. and S. Kirsch 2010. “Capitalism and the Politics of Resignation“. In: Current Anthropology 51(4): 459–486.

Billaud, J. and J.K. Cowan. 2020. “The bureaucratisation of utopia: ethics, affects and subjectivities in international governance processes”. In: Social Anthropology 28(1): 6–16.

Biruk, C. 2023. “When partners are suspect(s): Trust, transparency, and racialised suspicion in global health infrastructures”. In: Cambridge Journal of Anthropology 41(2): 51–70.

Bond, D. 2022. Negative Ecologies: Fossil Fuels and the Discovery of the Environment. University of California Press: Oakland, CA.

Bowker, G.C. and S. Leigh Star 1999. Sorting Things Out: Classification and Its Consequences. MIT Press: Cambridge, MA.

Braithwaite, J. 2008. Regulatory Capitalism: How It Works, Ideas for Making it Work Better. Edward Elgar: Cheltenham, UK.

Brice, J., Cusworth, G., Lorimer, J., and T. Garnett 2022. “Immaterial animals and financialized forests: Asset manager capitalism, ESG integration and the politics of livestock”. In: Environment and Planning A: Economy and Space 54(8): 1551–1568.

Brown, P. R., Cherney, L., and S. Warner 2021. “Understanding Public Value–Why Does It Matter?”. In: International Journal of Public Administration 44(10): 803–7.

Browne, S. 2015. Dark Matters: On the Surveillance of Blackness. Duke University Press: Durham, NC.

Cromer, R., and S. Bjork-James. 2023. “Deploying fetal death: “Fetal burial” laws and the necropolitics of reproduction in Indiana”. In: PoLAR: Political and Legal Anthropology Review, 46: 9–23.

du Gay, P. and K.Z. Pedersen 2020. “Discretion and Bureaucracy”. In: Evans, T., Hupe, P. (eds). Discretion and the Quest for Controlled Freedom. Palgrave Macmillan, Cham.

Finney, C. 2014. Black Faces, White Spaces: Reimagining the Relationship of African Americans to the Great Outdoors. University of North Carolina Press.

Liboiron, M. 2021. Pollution Is Colonialism. Duke University Press: Durham, NC.

McGoey, L. 2007. “On the will to ignorance in bureaucracy”. In: Economy and Society 36(2): 212–235.

Roy, A. 2005. “Urban Informality: Toward an Epistemology of Planning”. In: Journal of the American Planning Association 71(2): 147–158.

Strathern, M. 2000. “New Accountabilities; Anthropological Studies in Accountability, Ethics and the Academy”. In: Strathern, M. (ed.) Audit Cultures: Anthropological Studies in Accountability, Ethics and the Academy. Routledge: London and New York: 1–18.

Tucker, J.L., and M. Anantharaman 2020. “Informal Work and Sustainable Cities: From Formalization to Reparation”. In: One Earth (Cambridge, Mass.) 3: 290–299.

Türem, Z.U. and A. Ballestero 2014. “Regulatory Translations: Expertise and Affect in Global Legal Fields”. In: Indiana Journal of Global and Legal Studies 21(1): 1–25.

van Eijk, M. 2018. “The Anthropology of “Boring” Things“. In: Medical Anthropology Quarterly Second Spear Blog Series. Accessed August 7, 2024.

Weichselbraun, A., Galvin, S.S., and R. McKay 2023. “Introduction: Technologies and infrastructures of trust”. In: The Cambridge Journal of Anthropology 41(2): 1–14.

Abstract: This thread builds on a panel at the EASA biannual conference in July 2024, which was entitled ‘Doing and Undoing Regulation’. We invited participants to explore regulation as a contested sociocultural practice, generative of social worlds. The contributions to this thread ask about the epistemologies and ethics forged by regulation, the people doing regulation, and trajectories of (un)doing regulation in a changing world.