Adaptive Regulation in the Amoral Bazaar
Twelfth Oliver Schreiner Memorial Lecture,delivered on 20 October 2010 at the School of Law, University of the Witwatersrand, Johannesburg, South Africa.
Many gradual changes in science, law and society are crystallizing to shape a significant transformation in administrative law. The doctrinal framework within which Justice Schreiner himself attempted to modernize how law should regulate government and private economic activity seems from our vantage point to be quite antiquated.
In explaining why, my examples will come from the world of financial services, but they could easily be found anywhere in the area of law and regulation. First I will outline the basic premises of prevailing doctrine and its growing shortcomings. Then I will describe developments in our understanding of the social ecologies through which law and regulation is transfused. I will consider some of the implications for the way in which we need to think about future regulation in order to be more effective in this complex world. We are moving from a framework of directive regulation to one that has to become much more adaptive.
While my talk will focus on understanding markets as evolutionary social ecologies, and the consequences this has for administrative law and regulation, it is also important that these "amoral bazaars" be grounded on a foundation of moral aspiraton and integrity. I will therefore conclude with a reminder that we ignore at our peril the urgent responsibility of redeveloping a moral framework within which markets should operate.