8 - Regulation and the Law

Summary

Law by its very nature tends towards the constraint of the decision-making of individuals, and so has an inherent – but not inevitable – mythological disposition, especially when in combination with both the sovereign and regulatory power of the State. Thereby it reflects shifting forms of – most recently neoliberal – power and truth. A non-mythological law will need to be framed constitutionally but will also require a rethinking of the rule of law, which is currently mostly comprised of anatomical lists of preferred characteristics. There are alternative approaches in the form of teleological accounts – preferred here – and prominent amongst which is that of Krygier. However, he does not go far enough, settling for a critical exploration of social traditions and seeing the arbitrary use of force as the dominant target. This tends to ignore the spread of sovereign power into regulatory forms, which are as intrusive as arbitrary power, albeit in a different manner. An existential rule of law would be founded on purpose-based, fiduciary principles which committed agencies to promote the non-mythological interests of self-responsible individuals. Trust would play a valuable but secondary role in such arrangements.