From Economy to Society? Perspectives on Transnational Risk Regulation: Volume 62

This introduction unpacks the key question that informs the articles in this special issue. How does a social sphere inform regulation and, more specifically, how can the regulatory capacity of a social sphere be harnessed, as an alternative or significant complementary force to state regulation and reliance on the self-regulatory capacity of markets? This question is salient and topical also in light of the search for new regulatory strategies and perspectives in the aftermath of the 2007 financial and subsequent EU sovereign debt crises, which have led to a major realignment of economy and society in a number of countries.

This introduction argues that economic sociology is a crucial reference point for understanding more about the social practices that constitute business behavior. It enables to explore the scope and significance of often interlinked social and legal norms for regulating various transnational risks that economic activity can give rise to. The introduction therefore locates the quest for understanding more about the regulatory capacity of a social sphere in debates that draw on Karl Polanyi’s analysis of the embedding, disembedding, and re-embedding of economic activity into social norms. The introduction highlights one of the key themes developed in this special issue, the idea of society within economy which questions an assumed conceptual distinction between economy and society.

This introduction concludes by specifying how the accounts of risk regulation developed in this special issue chart a path that is different from recent explorations of the role of a social sphere in regulation, which were conducted under the banner of “the sociological citizen,” “regulatory sociability,” and “collaborative governance.”

This article aims to show that studies of transnational risk regulation can benefit from Polanyian and neo-Polanyian research agendas in the field of law, economy, and society. Risk regulation would then be understood as a corrective force within the market society. Drawing on the relevant literature in the field, Karl Polanyi’s work is contextualized both in the past (“scholarship before and beside Polanyi”) and in the present (“scholarship after and beyond Polanyi”). The review considers developments within sociology, its neighboring disciplines economics and jurisprudence, and the interdisciplinary research fields of “economy and society,” “law and society,” and “law and economy.” The article demonstrates that Polanyi is a “late classic” who shares the holistic orientation of classical historical scholarship. At the same time, it is argued that his “early revival” is due to the topicality of his criticism of the market society, and its inherent risks, in an era of neoliberalism and globalization. By going back and forth in time, the article situates Polanyi in a line of holistically minded scholarship that combines insights of general, economic, and legal sociology in what can be called the “economic sociology of law.” This is “old” and “new,” at the same time.

Whereas much of the renewed interest in Polanyi’s Great Transform-ation speculates that the rebalancing of economy and society he foresaw might now be emerging in the context of the financial crisis, the systems theory perspective adopted in this article concludes that there are good reasons to believe that such a shift may be no closer. From an examination of credit default swaps and corporate bonds, the article suggests that finance may best be understood as an internally differentiated subsystem of the economy and thus perhaps peculiarly proof against efforts to exert control over it. Concluding that Polanyi’s analysis lacks the conceptual tools to cope with contemporary conditions when compared to systems theory, the article nevertheless suggests that his approach may usefully be extended by adding a fourth fictitious commodity – risk – to the familiar trio of land, labor, and money.

This article starts from the assumption that economic sociology, including Karl Polanyi’s work, can contribute fresh perspectives to regulation debates because it opens up new understandings of the nature of economic activity, a key target of legal regulation. In particular this article examines Polanyi’s idea that society drives regulation. For Polanyi the “regulatory counter-movement” is society’s response to the disembedding – in particular through the proliferation of markets – of economic out of social relationships. Section One of the article identifies three key challenges that arise from this Polanyian take on regulation for contemporary regulation researchers. First, Polanyi focuses on social norms restraining business behavior, but neglects social norms embedded in law as also shaping regulation. Second, he seems to imply a clear-cut conceptual distinction between “economy” and “society.” Third, his analysis sidelines the role of interest politics in the development of regulation.

Addressing the first of these three key challenges, Section Two of this article therefore argues that a Polanyian vision of “socialized” legal regulation should build on contemporary accounts of responsive law and regulation, which focus attention on social norms informing legal regulation. Section Three of this article tackles the second key challenge raised by Polanyi’s work for contemporary regulation researchers, that is, how to transcend a modernist perspective of “economy” and “society” as clearly demarcated, distinct fields of social action. It argues that discourse theory is an important alternative theoretical resource. Drawing on Laclau and Mouffe, the article suggests that understanding “economy” and “society” as performed by open and relationally constructed discourses helps to capture interconnections between “economy” and “society” that become particularly visible when we analyze how specific regulatory regimes work at a medium- and small-scale level. These points are further brought to life in Section Four through a discussion of the European Union (EU) regulatory regime for trade in risky, transgenic agricultural products, and in particular the current reform debates about the consideration of the “socioeconomic impacts” of such products.

This article combines two sources of data to shed light on the nature of transactional legal work. The first consists of stories about contracts that circulate among elite transactional lawyers. The stories portray lawyers as ineffective market actors who are uninterested in designing superior contracts, who follow rather than lead industry standards, and who depend on governments and other outside actors to spur innovation and correct mistakes. We juxtapose these stories against a dataset of sovereign bond contracts produced by these same lawyers. While the stories suggest that lawyers do not compete or design innovative contracts, their contracts suggest the contrary. The contracts, in fact, are consistent with a market narrative in which lawyers engage in substantial innovation despite constraints inherent in sovereign debt legal work. Why would lawyers favor stories that paint them in a negative light and deny them a potent role as market actors? We conclude with some conjectures as to why this might be so.

The social protests on the streets of indebted sovereigns in crises across the Eurozone have made debt restructuring an imperative. Further delay in achieving this expeditiously and equitably significantly exacerbates the social costs of crises from which current and future generations will struggle to recover. This article examines the feasibility of the drastic and widespread debt restructuring needed to resolve the problem in the face of existing private law sanctions that protect individual creditor rights. It relies on an analysis of US policy in the transition to a securitized market and of key sovereign debt cases to reveal the historical contingency of private law protections. It concludes by showing that the effectiveness of private law protections have always been constrained by the overriding imperative to achieve debt sustainability with negotiated and consensual workouts. This can be achieved in the Eurozone with statutory constraints on enforcement action pending the settlement of debt workouts as suggested in a recent proposal.

The evolution of the Fair Trade movement offers an apposite case through which to examine the idea of regulating risk through a “social sphere.” An analysis of Fair Trade through the lens of “defiance” reveals discrete models and actors of risk regulation that evolve in an iterative fashion. These findings not only add complexity and heterogeneity to the social actors and mechanisms of regulation in the social sphere, but also highlight the challenges this diversity poses for the project of alleviating market risk. In turn, the framework of defiance offers a fertile analytical framework for the study of transnational risk regulation by capturing the dynamic actor and institutional complexities that underpin, and embody challenges for, the regulation of risk through the social sphere. The article begins with an overview of the Fair Trade movement and consideration of Fair Trade’s approach to regulating market risk. It then introduces the notion of defiance, focusing on two of its subtypes: game playing and resistance. Following a short overview of the methodological framework employed to analyze these dynamics, the third section applies these analytical categories of defiance to explore primary data gathered on Fair Trade’s evolution. The article shows that the motivational posture of game playing, through its continued experimentation and entrepreneurship in transnational risk regulation, is pregnant with potential to mitigate the risks generated by economic activity.

This article looks at corporate social responsibility (CSR) as a discursive social practice that attempts to interrogate the global market economy and its neoliberal underpinnings and that reflects as well as frames and shapes domestic and global politics and institutions. Drawing upon Karl Polanyi’s notions of reciprocity and redistribution while also emphasizing the normative content of the concept, the article inquires into the position that the CSR discourse occupies in addressing the corporate transnational risks derived from social tensions and conflicts and more generally, in answering social expectations for justice. The Polanyian perspective highlights the CSR discursive quest for a missing conceptual consistency and implicitly, for a constructive “critical” core. From this perspective, the article shows CSR to reside within controversial conceptual boundaries; a discursive social practice that engages with the social aspiration of embedding market economy in society while it is also in need of reclaiming its critical core and its potential for social change.

The concept of risk is often approached as if it is self-defining. Yet placing an event or activity in the category of “risk” is a categorization with consequences. Framing normatively complex problems like immigration, terrorism, or monetary crisis as risks that require regulating suggests that certain cognitive tools are best suited for analyzing them. It suggests that the problems are measurable or quantifiable, that they lend themselves to utilitarian calculus, and that they have ascertainably correct solutions that require no value judgments. This article employs emotion theory to illustrate the difficulties with approaching normatively complex areas of governmental policy through the framework of risk regulation. It argues that interdisciplinary inquiry into the role of emotion in human behavior sheds light on how risks are assessed, prioritized, and ameliorated, on how the category of risk is constructed, and on how that categorization affects the cognitive tools and approaches we bring to normatively complex problems. The article begins with a brief discussion of behavioral law and economics, which styles itself a corrective to law and economics, but which replicates its fatal flaw: its unrealistic view of human behavior. Next it turns to two more specific problems with the standard notion of risk formulation. First, the standard notion reads out the essential role of emotion in deliberation about risk regulation and overvalues top-down expert knowledge. Second, it reads out the heuristics that erase patterns and maintain the status quo. Finally, the article will focus on two illustrative case studies, the Chicago heat wave of 1995, and Hurricane Katrina.

This article develops Polanyi’s (2001) theme of harnessing the regulatory capacity of a social sphere by focusing on trust as an emotion for framing risk regulatory regimes. Using the global mining sector as its focus, it explores the role of trust in the regulation and corporate management of social and environmental risk.

Sociological perspectives on trust are employed to identify and analyze dynamics of trust in the mining industry. The article draws on data collected between 2004 and 2008 by way of participant observation, document analysis, and in-depth qualitative interviews with around 40 representatives of the mining industry, NGOs, and regulators. Trust-relationships are an example of harnessing the regulatory capacity of a social sphere, but they can also undermine regulatory effort where trust is abused. The effectiveness of trust-based regulation would be enhanced by sanctions for nonperformance that target corporate motivations and financial performance. This research focused on a selection of large, multinational mining corporations with a presence in Australia. Generalizations could not be made from this research about smaller mining entities or single-country or state-owned corporations.

A better understanding of corporate trust-building behaviors and motivations can help inform more effective regulatory strategy for improving corporate, social, and environmental impacts. This article contributes to the body of knowledge about the regulation of the social and environmental performance of the mining industry. This is important as many of the remaining accessible mineral deposits across the globe are in areas of environmental and social significance.

This article argues that the economic, political, and cultural spheres of society are not separate but rather mutually embedded in one another. The market is not just an economic phenomenon, but a political and cultural one as well. Markets, in this reframing, include not just the convenient fiction of atomized buyers and sellers but trade and professional associations and a field of public actors including assorted regulators and courts. It is the interaction of these parties that creates a market culture. These cultures exhibit contradictory tendencies that are generated by exchange relations and resolved by power dynamics. The contradictory tendencies reflect the tension between accumulative and regulative norms in market cultures. These include opportunism versus restraint, innovation versus standard practice, and growth versus stability. The resolution of the cultural contradictions of markets is not a natural tendency toward equilibrium, but rather an ideal of public policy to be attained by countervailing power in effective legal and regulatory institutions.