The theory of ‘Regulation By Design’

towards a pragmatist reconstruction

Abstract

Two notable trends emerge in the theoretical treatment of regulation by design (RBD). Essentialists treat RBD as the product of policy enactments on the part of public bodies. Functionalists cast regulation as an overarching practice that subsumes design, which they relegate to the status of a mere instrument. The essentialist view neglects the complexity of regulatory environments, while the functionalist one neglects the complexity of regulatory practices. This article reconceptualises the relationship between design and regulation so as to account for the multifaceted nature of the latter without neglecting the autonomy of the former. Diverging from both the essentialist view of regulation as a set of rules and the functionalist view of regulation as a practice, the article advances a pragmatist view of regulation as a rule-making activity, that is, regulativity, which is performed through social practices. Thus, RBD is redefined as the regulative activity of design.