To regulate, is it deciding in an uncertain context?
Updated: Nov 28, 2018
Regulating in an uncertain context is to face, first of all, the issues related to the securing of the financial markets. In this context, it is a question of considering the technical innovations related to the temporality of each sector : political, economic and financial, but also of perpetuating the decision-making processes halfway between the logics of actors and the crossing of public and private, political, economic and financial spheres. The security process is thus apprehended through a probabilistic approach where the regulator initiates, downward, a risk legislation. The State then endorses a program (which often results from an agenda setting), and then attempts to coordinate the modalities of action. Legislation, namely, the law, is in fact intrinsically linked to the economic and financial sphere. In this respect, finance is understood through a contractual promise between various stakeholders with the State as the ultimate guarantor. It therefore has the right as an element consubstantial. Securing, as a new branch of regulation of the economic and financial sphere, is to act in anticipation of constant risks. With its government function that had hitherto been to preserve the real economy and growth, “the Welfare State” has given way to a “Strategic State”, with the prospect of a multi-target and multi-scale security policy.
The fact of framing and controlling the financial sphere through security tools, such as central data registers and clearing houses allows internal security. These tools are themselves secured by a robust normative and institutional framework (external approach to security). Introducing more control then amounts to interpenetrating public issues from the normative point of view within the financial sphere. The real economy is ultimately about better resource allocation and common welfare. Thus, transparency issues reveal the resistance of the financial sector to the public sector. Today, thanks to the implementation of pre and post trade reporting, ex post control policies for financial transactions make it possible to follow trends.
In this context, moving from a “Westphalian” sovereignty to a “Fractured” sovereignty gives way to the emergence of a post-modern State. While facing technical innovations and the emergence of new economic operators, the state has had to redefine its functions. “Fragmented and polycentric”, it has also allowed a change in the approach of the law to regulation. The law has become “plural”, “supra-state”, with a delegation from the top of state sovereignty to supranational organizations, “infra-state”, with a delegation from below to administrative authorities, and based on “soft law” (soft law, an approach in term of contractualist). Two approaches to “government functions” then emerge in terms of regulation. The systemic approach based on Giandomenico Majone's work explores the mechanisms of “re-regulation” in the transition from a “positive” interventionist state to a regulatory state. Based on a principle of convergence, the regulatory function for this author would have moved from a national to a European level. This principle of convergence would originate in the principles of “competence” and “effectiveness”. The paradox of “re-regulation” flows from liberalization processes in the industrialized countries. Majone speaks instead of the combination of a “freer market” and “more rules”, where governments continue to exert control over market processes. In addition, the foundations of state intervention, he says, can be explained by what economists call “market failures” where “distribution and social coordination” would not be done effectively. The natural argument for state intervention lies in the “natural monopoly”.
Thus, regulating in an uncertain context is tantamount to simultaneously considering the two approaches, systemic and functionalist, which today prove complementary. Admittedly, law is the keystone of regulatory architecture; however, it is essential to develop more flexibility and malleability to better adapt to ever-changing financial markets, especially as digital and new technologies expand. To regulate is also to decide in an uncertain context of the evolution of the key functions of government by notably involving the civil society in order to sensitize it to the questions, often technical, of the finance. This also means placing regulatory functions within the reach of citizens with a view to involving them in debates and developments in the financial sphere. Efficient regulation in an uncertain context is not stato-centered, it must be open, flexible and accessible on a social scale, hence the importance of institutionalizing the functions of government.