The Economization of Politics: Meta-Regulation as a Form of Nonjudicial Legality

Recent developments in regulatory reform strategies increasingly focus on regulating the process of regulation itself, rather than regulating social and individual action directly. This article explores the reflexive systematisation of regulatory policy by focusing on institutions and processes that embed regulatory review mechanisms deploying economic rationality into the every-day routines of governmental policymaking. It explores both the social logic underlying this phenomenon of meta-regulation and its political implications, primarily in relation to a particular instance of meta-regulation established in Australia in the 1990s. The social logic of meta-regulation is characterised as an instance of nonjudicial legality, situated at the intersection of two trends - an increasing legalisation of politics and a growing reliance on nonjudicial mechanisms of accountability. The political implications can be summed up as an economisation of regulatory politics. Meta-regulation excludes competing ways of understanding regulatory policy choices, causing bureaucrats to translate aspects of social welfare that previously may have been expressed in the language of need, vulnerability or harm into the language of market failures or market distortion. This process tends to silence certain critical modes of demanding justice, particularly those that rely on moral or distributive values.