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19 Law & Soc'y Rev. 219 (1985)
Bartering Rationality in Regulation

handle is hein.journals/lwsocrw19 and id is 211 raw text is: BARTERING RATIONALITY IN REGULATION GERD WINTER* Legal powers given to administrative agencies are frequently used as bargaining chips in negotiations between government and business. This paper develops a typology that helps to explain the empirical variety of such bartering. Inquiring into the historical development of bartering, the article shows that what is new is not the practice of but the discourse about bartering. The discourse legitimates bartering with legal powers. This, in turn, will reshape practice, affecting the bargaining positions of the parties, the mode of law-making, the role of third parties and the public, and the potential of the law to induce social change. I. INTRODUCTION There is general agreement that regulatory law as it has come to flourish in the advanced industrial West has discarded the vision of a pure substantive rationality in which laws are vigorously enforced to achieve specific ends, but there is little agreement about the tendencies that now dominate legal regulation. Some treat law as a largely symbolic means of legitimizing decisions reached through informal cooperation between the government and separate, private actors (Arnold, 1935) or as a result of ties that link governmental and private actors (Unger, 1976; Middlemas, 1979). Others purport to see a reflexive or procedural mode of regulation emerging (Teubner, 1983). A third group conceives of law as metapower, which, by providing normative discourses, integrates potentially disruptive ideas (Ladeur, 1984). Finally, some emphasize the bargaining or negotiation element in regulatory law enforcement (Jowell, 1977; Scholz, 1984). * I am grateful to Stephen Diamond, Robert Kagan, Karlheinz Ladeur, Norbert Reich, Christopher Stone, and David Trubek for providing me with helpful suggestions for revisions in earlier drafts of this paper. Richard Lempert put a tremendous amount of time and skill into editorial work. He translated my ponderous English into what sounds to me like most elegant prose and helped to clarify and condense my arguments. Financial support by the Stiftung Volkswagenwerk enabled me to spend three months in the stimulating atmospheres of the University of Wisconsin Law School and the Oxford Centre for Socio-legal Studies. LAW & SOCIETY REVIEW, Volume 19, Number 2 (1985)

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