ABSTRACT
The law in isolation is seldom, if ever, an adequate regulatory device. As Black contends in her exposition of decentred regulation: ‘governments do not … have a monopoly on regulation … regulation is occurring within and between other social actors’ (Black 2001: 103). Indeed, the use of alternative instruments to achieve regulatory goals has proliferated in recent times; Thaler and Sunstein’s influential ‘nudge’ theory (Thaler and Sunstein 2009) is one obvious manifestation of the preference on the part of policy makers for non-regulatory solutions to social problems. But whilst innovation in the design of policy instruments is laudable, there remains a place for more traditional command and control regulation. As Macrory notes, ‘it remains equally important to ensure that the qualities of transparency, accountability, and enforceability inherent in the more formal legal structures are not lost’ (Macrory 2001: 647).
