« Who's Afraid of Assuming Federal Jurisdiction? | Main | Judging Similarity (Part 2) »

Thursday, August 21, 2014

Thoughts about Perez on Courage and Rationality in Regulation

Oren2Oren Perez (Bar Ilan University) has published Courage, Regulatory Responsibility, and the Challenge of Higher-Order Reflexivity in Regulation and Governance and on SSRN.  Here's the abstract:

Contemporary regulators must respond to ever-increasing societal demands in various domains. Regulators must cope with these demands under conditions of extreme epistemic scarcity and ideological divide. This leaves regulators perplexed about what action they should take. Regulatory praxis offers two primary responses to this moral and epistemic dilemma: technical canonization and reflexive regulation. While these two approaches represent contrary regulatory philosophies, they suffer from two common blind spots: (a) disregard of the critical role of discretionary judgment in regulatory action; and (b) disregard of the dilemma of higher-order reflexivity. The article explores the idea of higher-order reflexivity in the regulatory context. This exploration renders visible the abysses that are faced by regulators as they attempt to resolve regulatory dilemmas through a cognizant and introspective process. The article argues that the Socratic concept of courage and the idea of forward-looking responsibility provide a plausible framework for thinking about the challenge of regulatory judgment. It concludes with a discussion of the legal and institutional mechanisms that could both facilitate and put to scrutiny the realization of this ideal (but noting also several features of the contemporary regulatory system which constitute potential barriers). 

I always take note of Professor Perez's work, because he (among others) confronts, as he refers to it, the higher-order rules that determine how we go about applying rules, and the inherent regress or circularity in trying to come up with an objective foundational concept of judgment, an archimedean place to stand (as Ronald Dworkin characterized it here at page 88).  

This particular essay is in the context of regulatory judgments, but it applies more generally.  What do we mean by "higher order"?  Let's suppose that I need to decide on an appropriate response to my child's misbehavior.  Should I choose the first level rule of justice (in which case he's grounded until he's thirty) or the first level rule of mercy (oh, c'mon, I did the same thing when I was his age)?  What rule do we apply in choosing between justice and mercy rules?  Let's call this "Rule-Prime".  Do I apply "justice" rules when the action involves a physical danger?  Do I apply "justice" rules when the action has consequences for others?  Okay, what's the rule for deciding how to decide how which rule is appropriate in "Rule-Prime" cases?  Well, I guess there must be Rule-Prime-Prime.  You can see when this is going to end.  Never.  (Note the application of this to the problem of the internal point of view in the "what is law?" jurisprudential debates.  We could do an objective study of parents' disciplining habits and that would tell us about the practice, but it wouldn't tell us anything about how the parents came to see that as the governing first order rule.)

The lesson here is that, sooner or later, the power of rational thought runs out, and we have to turn to something else when we make decisions.  Not only do I like his choices - courage (i.e. deciding even if we are uncertain) and responsibility (i.e. accepting the consequences of the decision) - I've written something similar in connection with business (and other) decisions:  "The affective toolkit for getting beyond rational analysis to action includes attributes such as epistemic humility, epistemic courage, self-awareness, and the willingness to accept responsibility for the consequences of one’s decisions."

Posted by Jeff Lipshaw on August 21, 2014 at 07:53 AM | Permalink


The comments to this entry are closed.