Uncertainty and hyper-regulation
From the early 2000s, we have seen a wave of publications in social theory concerned with temporalities of change. Giddens discussed it in terms of ‘time-space compression' (Giddens 1985) and ‘hyperglobalization' (Giddens 1996).
Rosa (2003) and Rosa and Scheuermann (2009) formulated their views in terms of ‘acceleration.' It certainly was not the first time that the sense ofrapid change was subject to public and scientific debate. Koselleck (2009) gives an interesting historical glimpse of the history of time perspectives and metaphors used to express experiences of acceleration. Koselleck also gives insight into the ups and downs in public debate about acceleration. Rosa and Scheuermann (2009), analysing the social and political dynamics of acceleration, show that at the turn of the twentieth century, scholars discussed the—mainly—problematic side of the accelerated speed at which technology, the economy, and society were changing. They point out that only a few scholars at that time called attention to legal issues. Those scholars saw rapid legal change primarily as a challenge to democracy. Democracy in this view is a political model based on deliberation and building alliances. And this requires time that seemed to be increasingly lacking because life was speeding up. How much acceleration could a democratic order tolerate? One of the authors that addressed legal issues was the conservative scholar Carl Schmitt. He argued there were problematic practices of coping with acceleration. One such technique involved delegating and making legislation without or with little political debate. Emergency Law, which was increasingly used in the Weimar Republic, decreased the time available for political deliberation even further. These considerations were certainly important and they still are. But they capture only a part of the issue. A century later, globalisation has picked up speed. In its wake, additional levels of law-making have emerged, exacerbating the challenge to democracy. Now law-making at levels outside the national legislator is not merely a matter of delegation. Legislation is increasingly made by relatively autonomous circles in which epistemic communities play a crucial role. Transnational organisations and NGOs that are relatively disconnected from any national system are important sources of regulations. Here, democratic rules of political deliberation hardly apply.Not only has the volume of legislation increased to an unprecedented level with globalisation. The turnover of regulations has also accelerated. In many realms of social and economic life, regulations have an ever- shorter existence. This poses problems for democracy in the sense of political deliberation that was so much at the heart of criticism in the early twentieth century. Rapid turnover oflegislation also produces increasingly complex constellations oflegal pluralism. It is often not the case that every regulation has been discussed according to all democratic requirements and that political deliberations have been adequate. However, even in such rare events, the multiple overlapping and rapid successions of regulations constitute an immense challenge for legal certainty. These temporal aspects of legal complexity also have a spatial corollary, as Delaney (2010) showed. He argued that legislators at all levels are increasingly preoccupied with crafting the ultimate right regime for a particular space. But they do so with different purposes and from different perspectives. The result is what he calls “hyperterritoriality,” in analogy with Giddens and Rosa (Delaney 2010, 138). The term refers to the current condition in which, in quick succession, ever more overlapping regulations regulate the same space. Because these regulations are often contradictory, they call for more coordination and adjustment. Thus, the very attempts to create ‘regimes of continuity' create spaces that are everything but enduring.
This insight has much broader implications for the acceleration of law-making in general. As Franz von Benda-Beckmann and I have argued, we live in a time of what we could call “hyper-regulation,” with all the contradictions and coordination problems that Delaney pointed at (Benda-Beckmann and Benda-Beckmann 2014, 31, 44-46). Viewing the developments from a processual perspective reveals that the problems of hyper-regulation are confounded. Old regulations often retain at least some of their influence after they have been officially abolished. Some new regulations (e.g., the introduction of EU regulations in new member states) or promises to subscribe to international human rights treaties and conventions cast their shadow before a state formally signs them (Benda- Beckmann and Benda-Beckmann 2006). As a result, it is often unclear which regulations apply in a certain situation. This means that every new regulation generates a certain amount of uncertainty. Usually, this uncertainty is limited in duration. However, if rule-making accelerates and overlapping regulations are increasingly made for one physical or social space, the overall effect is a permanent situation of considerable uncertainty. To be sure, hyper-regulation is not evenly distributed. It is particularly strong in fields such as social security, environment, urban planning, natural resource management (e.g., fisheries, gas mining), migration and asylum, international trade relations, and transnational production chains. Other fields such as property relations tend to have more enduring regimes. Here again, issues of inequality are at stake. The negative consequences of hyper-regulation seem to be more serious for powerless groups than for the powerful. The powerless have good reasons to be the first to lose trust in the legal system.One might think that this is only a problem for industrialised societies since ill-functioning states typically do not have the capacity to make so many regulations. But even within ill-functioning states, people cannot always escape the effects of global hyper-regulation.
They often find themselves at the lower end of production chains, where they may be forced to comply with the various national laws within the production chain alongside international and transnational regulations of different sorts. Besides, organisations for development cooperation or disaster relief are themselves tied to the rapidly and often capriciously changing regulations made within donor countries or international organisations, or both. These have direct implications for their clients, who have no insight into the multiple processes by which these changes are made. Hyper-regulation is a phenomenon that affects all and creates considerable uncertainty. The uncertainties are unequally distributed. Powerful organisations are better situated to deal with these uncertainties and use them to their advantage than powerless persons and groups that have little influence in law-making processes and do not have the means to be well informed about all the relevant legal changes.