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The Regulatory StateConstitutional Implications$
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Dawn Oliver, Tony Prosser, and Richard Rawlings

Print publication date: 2010

Print ISBN-13: 9780199593170

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199593170.001.0001

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Regulatory Governance and the Challenge of Constitutionalism

Regulatory Governance and the Challenge of Constitutionalism

(p.15) 2 Regulatory Governance and the Challenge of Constitutionalism
The Regulatory State

Colin Scott (Contributor Webpage)

Oxford University Press

This chapter assesses both the narrow and broad versions of the challenge presented to the values of constitutionalism by regulatory governance. The narrow constitutionalist critique locates the problem of regulatory governance with the delegation of governmental power to regulatory agencies. Such delegations may be quite extensive and arguably they undermine the effectiveness of the limitations placed on legislative and executive power. A broader constitutionalist critique looks beyond delegation to other organs of the state, and notes that the decentring of regulatory governance has increasingly implicated both non-state and supranational governmental bodies in regulatory tasks through implicit and explicit delegation and through the assumption of regulatory powers with little or no national governmental involvement. One response to the diffusion of regulatory power is to seek the extension of traditional modes of control and accountability beyond state actors to those who were found to wield power. Although this is not always inappropriate, as a comprehensive solution to the adaptation of constitutionalism to regulatory governance it is likely to be incomplete. The suggested alternative is to recognize diffusion not only in actors but also in modes of regulatory governance. Such a move recognizes a broader shift in constitutionalism from its liberal legal underpinnings to a version that emphasizes legal pluralism as a central characteristic of globalization.

Keywords:   constitutionalism, regulatory governance, governmental power, delegation, legal pluralism

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