June 5, 2015
Blog by Chris Anderson, University College London
Questions of expert and executive power are at the forefront of longstanding debates on risk regulation in the European Union, but the intimate connections between them too often go unexplored. By employing the theoretical tool of coproduction, those connections can be laid bare, and we can begin to ask questions about the construction of regulatory desiderata and the role of experts and administrators in furthering them. To raise these questions is to reconnect debates about risk regulation to broader debates about democracy and the role of the EU.
On May 21st and 22nd, scholars from Europe and North America met at a workshop jointly organized by Anniek de Ruijter and Maria Weimer of the University of Amsterdam and Maria Lee of University College London to consider the co-production of expert and executive power in European Union risk regulation. Those acquainted with the field of Science and Technology Studies will be familiar with the idea of co-production, which in Sheila Jasanoff’s formulation is “shorthand for the proposition that the ways in which we know and represent the world (both nature and society) are inseparable from the ways in which we choose to live in it”. The workshop organizers see co-production as a theoretical tool that allows for the exploration of “how science and expertise are incorporated in the executive and administrative polity‐building of the EU and how science and knowledge in turn are constituted in the processes of the exertion of EU executive power”. The specific goal of this workshop was “to re-visit the state-of-the art with regard to these questions and to formulate viable suggestions for addressing them.”
Keynote speaker Sheila Jasanoff began the programme by challenging participants to think beyond specific contexts and to consider the connections between the co-production of expert and executive authority and the “kind of democratic governance we can aspire to”. That challenge is of course particularly salient in the context of the EU. For Professor Jasanoff, co-production may provide a useful tool for analysing EU governance by helping to uncover links between the law and practice of EU risk regulation and larger debates about the nature and legitimacy of the EU as a political order.
Taking up Professor Jasanoff’s challenge, five panels explored the phenomenon of co-production from different angles. Elen Stokes and Jack Stilgoe began by chronicling the co-production of new technologies and regulatory structures in the fields of synthetic biology and nanotechnology. In the second panel, Anniek de Ruijter and Scott Greer described how evolving ideas of public health have shaped the role of the executive in public health surveillance and emergency response. To begin the second day of the workshop, Elizabeth Fisher and Andy Stirling refocused attention on knowledge and expertise as constructed categories. Fisher in particular emphasized the often-overlooked temporal dimension of expertise, while Stirling reminded the participants of the importance of power relationships in the production of knowledge. The focus of discussion then turned toward accountability. Ellen Vos presented an account of the complexities inherent in judicial review in reviewing science-based executive decision-making. Maria Lee examined the practice and possibilities of the European Ombudsman as a forum for accountability in EU risk regulation. And Deirdre Curtin broadened the scope of discussion by considering the connection between expertise and transparency at the European Central Bank. In the final panel, Maria Weimer and Holger Straßheim discussed co-production within European institutions, with case studies on the regulation of GMOs and the introduction of behavioural economics into the Commission’s regulatory toolkit.
The workshop was notable for the richness of perspectives taken by the various panellists. One came away from the discussion with the impression that co-production is truly everywhere and that any analysis of EU regulatory programmes needs to account for it. Identifying co-production may turn out to be the easy task, however. The greater challenge that emerged from the discussion was how to relate the phenomenon of co-production to normative ideas about good regulatory practice.
In this regard, I am reminded of a sage observation made by Charles Reich nearly 50 years ago:
Is not “expertise” merely another term for knowledge of facts outside the record plus built-in predispositions? Is not the administrator who is free of such contamination also free of any claim to be an expert? When Congress decided that it wanted an expert tribunal, it is fair to say that Congress also wanted what might be termed a tilted tribunal—one with a particular approach to the subject—a viewpoint on policy and on the facts which go into the formation of policy.” [C.A. Reich, ‘The Law of the Planned Society’ (1966) 75 Yale Law Journal 1227, 1242.]
Reich clearly understood the co-production of expert and executive power. He also understood that co-production can empower administrators to tackle social problems, by giving them a position from which to take a stand against those problems. Those stands are not neutral, however. In thinking normatively about co-production, the questions seem to be the extent to which we want to empower the executive and to what end? (And, indeed, in whose interest?)
Because of its own inevitability, co-production itself cannot answer any of these questions. What is needed is a theory of democracy, and of the place of executive regulation in it. As Maria Lee put it in her closing remarks, the common thread running through the diverse presentations was concern about “the kind of world and the kind of democracy we want to live in”. That is an inherently (and hotly) contested topic, especially so in the context of the EU. Co-production provides us a powerful theoretical tool for analysing both expert and executive power. What we do with that analysis will depend on broader commitments regarding law and democracy.
Those who missed the workshop should look out for the forthcoming volume of conference papers edited by Maria Weimer and Anniek de Ruijter and to be released by Hart Publishing in the near future.acelg