Regulation beyond normativity: not only nudges. Ruling without rules

What is it about?

Often, when a problem arises, someone immediately declares: “There’s a regulatory gap to plug. What we need is a new rule.” As if everything could be solved with a new regulation. And, when we think of a regulation that can fix things, generally what we have in mind is a verbal – preferably written – regulation. There are two aspects we wish to highlight here. Firstly, behaviour can be regulated not only with verbal norms but also with non-verbal norms. Secondly, behaviour may even be regulated without any specific rule: this article is dedicated to this fascinating regulatory phenomenon.

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Photo by Zuzana Kacerová on Unsplash

Photo by Zuzana Kacerová on Unsplash

Why is it important?

From a theoretical perspective, ruling without rules is certainly relevant to the theory of regulation (specifically it urges that we accept that it is possible to rule without rules, i.e. without normativity) and to the theory of social ordering (in this case, it urges us to admit that the mechanism that generates social orders does not consist merely of rules, in particular verbal state-enforced rules). From a practical perspective, it is particularly important for the theory of regulation insofar as it suggests alternative ways to influence behaviour in an effective manner. For example, it suggests a new approach in contrast to the traditional option of ruling exclusively by means of prescriptive rules (which need enforcement, and the violation of which must always be punished with a penalty).