1 Passas, Nikos, Lawful but Awful: ‘legal Corporate Crimes’”, 34 (6) The Journal of Socio–Economics (2005), pp. 771 et sqq .CrossRefGoogle Scholar

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4 Kagan, Robert A, Gunningham, Neil, and Thornton, Dorothy, “Explaining Corporate Environmental Performance: How does Regulation Matter?”, 37 (1) Law & Society Review (2003), pp. 51 et sqq .CrossRefGoogle Scholar

5 Debate on the aforementioned puzzle tends to be limited to these two options, thereby focusing on the type of legislation that might be needed. See e.g. Petetin, Ludivine, “Frankenburgers, Risks and Approval”, Eur.J.Risk Reg. (2014), pp. 168 et sqq , at p. 179.Google Scholar

6 E.g. Blanc, Florentin, “Moving Away from Total Control in Former Communist Countries–the RRR in Inspections, and Lessons Learned from Reforming them”, (3) European Journal of Risk Regulation (2012)Google Scholar; see, for an overview of papers on this topic, Trappenburg, Margo and Schiffelers, Marie–Jeanne, “How to Escape the Vicious Circle: The Challenges of the Risk Regulation Reflex”, (3) European Journal of Risk Regulation (2012).Google Scholar

7 Sparrow, Malcolm K., “Joining the Regulatory Fold”, 11 (2) Criminology & Public Policy (2012), pp. 345 et sqq. , at p. 350.CrossRefGoogle Scholar

8 Black, Julia, “Regulatory Conversations”, 29 (1) Journal of Law and Society (2002), pp. 163 et sqq .CrossRefGoogle Scholar

9 Kaplan, Roberta A. and Nadler, Michael R., “Airbnb: A case study in occupancy regulation and taxation”, (82) U.Chi.L.Rev.Dialogue, (2015), pp. 103 et sqq., at p. 104.Google Scholar

10 Hirsch, Dennis D., “The law and policy of online privacy: Regulation, self–regulation, or co–regulation”, (34) Seattle UL Rev., (2010), p. 439 et sqq.Google Scholar

11 E.g. Ayres, Ian and Braithwaite, John, Responsive Regulation: Transcending the Deregulation Debate, Oxford University Press, 1992; Black, Julia and Baldwin, Robert, “Really Responsive Risk–Based Regulation”, 32 (2) Law & Policy (2010), pp. 181 et sqq;Google Scholar Kagan et al., “Explaining Corporate Environmental Performance:”, supra note 4; Lyon, Thomas P. and Maxwell, John W., “’Voluntary’ Approaches to Environmental Regulation: A Survey”, Social Science Research Network Electronic Library (1999)Google Scholar; May, Peter J., “Compliance Motivations: Perspectives of Farmers, Homebuilders, and Marine Facilities”, 27 (2) Law & Policy (2005), pp. 317 et sqq CrossRefGoogle Scholar; McBarnet, “After Enron Will ‘whiter than White Collar Crime’ Still Wash?”, supra note 2; Passas, “Lawful but Awful”, supra note 1; Sparrow, “Joining the Regulatory Fold”, supra note 7; Tyler, Tom R., “Psychological Perspectives on Legitimacy and Legitimation”, 57 Annu.Rev.Psychol. (2006), pp. 375 et sqq.CrossRefGoogle Scholar

12 For example, the extent to which regulators engage in such interventions can induce risks that impact their legitimacy. Thus, regulators can better mitigate such risks and their stakeholders can better assess regulators’ performance, if all parties possess a typology of regulatory interventions beyond the law.

13 Black and Baldwin, “Really Responsive Risk–Based Regulation”, supra note 11, at p. 199. See similarly Sparrow, “Joining the Regulatory Fold”, supra note 7.

14 Ayres and Braithwaite, Responsive Regulation , supra note 11, at p. 27.

15 Ibid. Ayres and Braithwaite also mention ways in which a regulator can be effective in a situation where it cannot coerce companies through legal measures (enforcement), such as bluffing and generating adverse publicity for the company involved as an alternative “big gun”.

16 As an aside, preserving this “enforceability in principle” may also constitute an underlying aim in addressing risks, which emanate from difficult to pin down corporate behaviour, through principle–based regulation.

17 E.g. McBarnet, Doreen, “Whiter than White Collar Crime: Tax, Fraud Insurance and the Management of Stigma”, British Journal of Sociology (1991), pp. 323 et sqq .CrossRefGoogle Scholar; McBarnet, Doreen and Whelan, Christopher, “The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control”, 54 (6) The Modern Law Review (1991), pp. 848 et sqq .CrossRefGoogle Scholar; McBarnet, “After Enron Will ‘whiter than White Collar Crime’ Still Wash?”, supra note 2; Passas, “Lawful but Awful”, supra note 1; Picciotto, S., “Constructing Compliance: Game Playing, Tax Law, and the Regulatory State”, 29 (1) Law & Policy (2007), pp. 11 et sqq .CrossRefGoogle Scholar

18 McBarnet, “Whiter than White Collar Crime”, supra note 17.

19 McBarnet and Whelan, “The Elusive Spirit of the Law”, supra note 17; McBarnet, “After Enron Will ‘whiter than White Collar Crime’ Still Wash?”, supra note 2.

20 Ibid., at p. 1105.

21 Passas, “Lawful but Awful”, supra note 1, at p. 783.

22 Ibid, at p. 783.

23 Jonathan C. Borck and Cary Coglianese, Beyond Compliance: Explaining Business Participation in Voluntary Environmental Programs , U of Penn, Inst for Law & Econ, 2011, provide an oversight of this line of research, in which they distinguish three types of drivers for such corporate behaviour: a broad category of economic drivers, external “license to operate” considerations that prompt companies to meet demands and expectations of their societal stakeholders (Kagan et al., “Explaining Corporate Environmental Performance”, supra note 4; Gunningham, Neil, Kagan, Robert A., and Thornton, Dorothy, “Social License and Environmental Protection: Why Businesses Go Beyond Compliance”, 29 (2) Law & Social Inquiry (2004), pp. 307 et sqq .CrossRefGoogle Scholar; Lynch–Wood, Gary and Williamson, David, “The Social Licence as a Form of Regulation for Small and Medium Enterprises”, 34 (3) Journal of Law and Society (2007), pp. 321 et sqq CrossRefGoogle Scholar.), and “internal license” considerations ( Howard–Grenville, Jennifer, Nash, Jennifer, and Coglianese, Cary, “Constructing the License to Operate: Internal Factors and their Influence on Corporate Environmental Decisions”, 30 (1) Law & Policy (2008), pp. 73 et sqq .CrossRefGoogle Scholar; Prakash, Aseem, “Why do Firms Adopt ‘Beyond–Compliance’ Environmental Policies?”, 10 (5) Business Strategy and the Environment (2001), pp. 286 et sqq CrossRefGoogle Scholar.).

24 Kagan et al., “Explaining Corporate Environmental Performance”, supra note 4.

25 Similarly, relevant research by May and others focuses primarily on the style individual inspectors demonstrate, and its effect on compliance and possibly “beyond compliance” behaviour of individual regulatees such as farmers, not on regulatory interventions beyond the law in general ( May, Peter J. and Winter, Søren C., “Regulatory Enforcement Styles and Compliance.” Explaining Compliance: Business Responses to Regulation, 2011, pp. 222 et sqq .Google Scholar; Bartel, Robyn and Barclay, Elaine, “Motivational Postures and Compliance with Environmental Law in Australian Agriculture”, 27 (2) Journal of Rural Studies (2011), pp. 153 et sqq .CrossRefGoogle Scholar; May, “Compliance Motivations”, supra note 9; May, Peter J., “Regulation and Compliance Motivations: Examining Different Approaches”, 65 (1) Public Administration Review (2005), pp. 31 et sqq .CrossRefGoogle Scholar; May, Peter J., “Compliance Motivations: Affirmative and Negative Bases” , 38 (1) Law & Society Review (2004), pp. 41 et sqq .CrossRefGoogle Scholar; May, Peter J. and Wood, Robert S., “At the Regulatory Front Lines: Inspectors’ Enforcement Styles and Regulatory Compliance” 13 (2) Journal of Public Administration Research and Theory (2003), pp. 117 et sqq .CrossRefGoogle Scholar; Winter, Søren C. and May, Peter J., “Motivation for Compliance with Environmental Regulations”, 20 (4) Journal of Policy Analysis and Management (2001), pp. 675 et sqq .CrossRefGoogle Scholar; May, Peter J. and Winter, Soren, “Reconsidering Styles of Regulatory Enforcement: Patterns in Danish Agro–Environmental Inspection”, 22 (2) Law & Policy (2000), pp. 143 et sqq CrossRefGoogle Scholar.). Other related research is focused more broadly on voluntary programs (e.g. Lyon and Maxwell, “‘Voluntary’ Approaches to Environmental Regulation”, supra note 9; Borck, Jonathan C. and Coglianese, Cary, “Voluntary Environmental Programs: Assessing their Effectiveness”, 34 Annual Review of Environment and Resources (2009), pp. 305 et sqq .CrossRefGoogle Scholar; Borck en Coglianese, “Beyond Compliance ”, supra note 23), or on the influence of regulatory pressure on participation in such programs ( Welch, Eric W., Mazur, Allan, and Bretschneider, Stuart, “Voluntary Behavior by Electric Utilities: Levels of Adoption and Contribution of the Climate Challenge Program to the Reduction of Carbon Dioxide”, 19 (3) Journal of Policy Analysis and Management (2000), pp. 407 et sqq .3.0.CO;2-7>CrossRefGoogle Scholar), but not on regulatory interventions beyond the law.

26 “Regulatory practice” as employed by Sparrow, The Regulatory Craft , supra note 3. OECD, The Goverance of Regulators, OECD Best Practice Principles for Regulatory Policy , OECD Publishing, 2014, at p. 25, refers to this regulatory practice as “operating regulation”, as opposed to creating legislation.

27 Coslovsky, Salo, Pires, Roberto, and Silbey, Susan S., 23 “The Pragmatic Politics of Regulatory Enforcement”, Handbook on the Politics of Regulation (2011), pp. 322 et sqq .Google Scholar

28 E.g. Ayling, Julie, “Criminalizing Organizations: Towards Deliberative Lawmaking”, 33 (2) Law & Policy (2011) pp. 149 et sqq .CrossRefGoogle Scholar

29 Other efforts to typify regulators stress to what extent a regulator or its field inspector displays a formal engagement style (e.g. May and Winter, “Reconsidering Styles of Regulatory Enforcement”, supra note 25; May and Wood, “At the Regulatory Front Lines”, supra note 23), or adopts a reflexive stance as opposed to a technical one while dealing with the multiple dilemmas a regulator faces ( Perez, Oren, “Courage, Regulatory Responsibility, and the Challenge of Higher–Order Reflexivity”, 8 (2) Regulation & Governance (2014), pp. 203 et sqq .CrossRefGoogle Scholar). Yet others discern regulators by the effort they spend on enforcement or inspections and the associated perceived risk of detection of violations (May and Winter, “Regulatory Enforcement Styles and Compliance”, supra note 25), or their capacity to proactively implement their policies ( McAllister, Lesley K., “Dimensions of Enforcement Style: Factoring in Regulatory Autonomy and Capacity”, 32 (1) Law & Policy (2010), pp. 61 et sqq .Google Scholar).

30 See Sharon Oded, Corporate Compliance , Edward Elgar Publishing, 2013, for an extensive literature review based on such an axis; also May and Winter, “Reconsidering Styles of Regulatory Enforcement”, supra note 25; McAllister, “Dimensions of Enforcement Style”, supra note 29.

31 Ayres and Braithwaite, Responsive Regulation, supra note 9; Braithwaite, John, “The Essence of Responsive Regulation”, 44 UBCL Rev (2011), pp. 475 et sqq .Google Scholar

32 Coslovsky et al., “The Pragmatic Politics of Regulatory Enforcement”, supra note 27, at p. 6.

33 To be clear, although the degree of autonomy exercised by the regulator may be a crucial input factor for this axis, the proposed typology should nevertheless be distinguished from typologies that focus on regulatory autonomy as “a measure of a regulatory agency's ability to formulate and pursue goals that are not primarily reflective of the interests of the regulated entities” (McAllister, “Dimensions of Enforcement Style”, supra note 29, at p. 64). That perspective, in fact, relates to the extent in which the regulator maintains focus on its mission and evades “regulatory capture”, regardless of the mandate interpretation associated with this mission.

34 Issuing regulation differs from regulatory practice in many ways. For example, it is often performed by different actors: some central government entities may issue regulation but may not engage in regulatory practice themselves, some regulators engage in regulatory practice but may not substantively issue regulation.

35 OECD, The Goverance of Regulators, supra note 26.

36 This is not always the case. See for instance McBarnet, “After Enron Will ‘whiter than White Collar Crime’ Still Wash?”, supra note 2, who propagates formal enforcement as a means of inducing behaviour in the spirit of the law.

37 See e.g. Braithwaite, John, Walker, John, and Grobosky, Peter, “An Enforcement Taxonomy of Regulatory Agencies.” 9 (3) Law & Policy (1987), pp. 323 et sqq .CrossRefGoogle Scholar

38 See Blanc, “Moving Away from Total Control”, supra note 6. In the proposed typology, such a perspective is denoted as autonomous rather than “technocratic” as suggested by Blanc. The notion of “autonomous” emphasizes the typically independent nature of a Public Architects assessment of what risks it aims to mitigate, whereas “technocratic” might be viewed as a normatively charged, negative connotation. It should also be noted that in the context of the study referred to, Blanc asserts that in the former Soviet Union societal concerns tend to be absorbed through political posturing into the political viewpoint; Blanc therefore does not elaborate on a discrete societal viewpoint.

39 Petetin, “Frankenburgers, Risks and Approval”, supra note 5.

40 Black and Baldwin, “Really Responsive Risk–Based Regulation”, supra note 11.

41 Sparrow, “Joining the Regulatory Fold”, supra note 7; Sparrow, The Regulatory Craft , supra note 3; Sparrow, Malcolm K., The Character of Harms. Operational Challenges in Control. Cambridge, United Kingdom: Cambridge University Press, 2008.CrossRefGoogle Scholar

42 E.g. Bartel and Barclay, “Motivational Postures and Compliance”, supra note 25; Krawiec, Kimberly D., “Cosmetic Compliance and the Failure of Negotiated Governance”, 81 Wash. ULQ (2003), pp. 487 et sqq .Google Scholar; McBarnet, “Whiter than White Collar Crime”, supra note 17; McBarnet, “After Enron Will ‘whiter than White Collar Crime’ Still Wash?”, supra note 2.

43 Sparrow, The Regulatory Craft , supra note 3, at p. 244.

44 Schneider, Carl E., “Discretion and Rules: A Lawyer's View”, The Uses of Discretion, 1992, pp. 47 et sqq ., at p. 64.Google Scholar

45 “Beyond compliance” behaviour is researched e.g. by Borck and Coglianese, “Voluntary Environmental Programs”, supra note 25; Borck and Coglianese, Beyond Compliance , supra note 23; Gunningham et al., “Social License and Environmental Protection”, supra note 23; May, “Compliance Motivations”, supra note 11; Howard–Grenville et al., “Constructing the License to Operate”, supra note 23; Kagan et al., “Explaining Corporate Environmental Performance”, supra note 4; Lynch–Wood and Williamson, “The Social Licence as a Form of Regulation”, supra note 23; Lyon and Maxwell, “’Voluntary’ Approaches to Environmental Regulation”, supra note 11; Prakash, “Why do Firms Adopt ‘Beyond–Compliance' Environmental Policies?”, supra note 23; Welch et al., “Voluntary Behavior by Electric Utilities”, supra note 25.

46 These extremities arguably provide insight that adds value to the proposed typology. However, the intention that underlies harmful corporate behaviour is subject to debate. It is debatable primarily because this corporate intention may be neither perceptible to the regulator nor “objectively” ascertainable. After all, as McBarnet and Whelan (“The Elusive Spirit of the Law”, supra note 17) point out, the interpretation and framing of relevant corporate behaviour and the applicable law is itself a crucial focus point in the regulatory struggle to mitigate cosmetic compliance. In fact, there may not always be a specific corporate intention with regard to the spirit of the law. A company may, for example, unintentionally cause environmental harm by way of unforeseen collateral damage.

47 E.g. McBarnet, “After Enron Will ‘whiter than White Collar Crime’ Still Wash?”, supra note 2.

48 As propagated by Ibid. and Nolette, Paul, “Law Enforcement as Legal Mobilization: Reforming the Pharmaceutical Industry through Government Litigation”, 40 (1) Law & Social Inquiry (2015), pp. 123 et sqq .CrossRefGoogle Scholar

49 To be clear, this “spirit of the law” may be construed to be either a broad interpretation of a legal norm, or an overarching extra–legal norm to the effect that company should adhere to the generic intention of the legislator as well as to the letter of the law.

50 Silbey, Susan S., “Case Processing: Consumer Protection in an Attorney General's Office” Law and Society Review (1980), pp. 849 et sqq ., at p. 850CrossRefGoogle Scholar; see Coslovsky et al., “The Pragmatic Politics of Regulatory Enforcement”, supra note 27.

51 Hawkins, Keith, “The Uses of Legal Discretion: Perspective from Law and Social Science”, in Keith Hawkins (Red), The Uses of Discretion (1992), at p. 36.Google Scholar

52 Almond, Paul, “Regulation Crisis: Evaluating the Potential Legitimizing Effects of ‘Corporate Manslaughter’ Cases”, 29 (3) Law & Policy (2007), pp. 285 et sqq ., at p. 293.CrossRefGoogle Scholar

53 Tyler, Tom R., “The Psychology of Legitimacy: A Relational Perspective on Voluntary Deference to Authorities”, 1 (4) Personality and Social Psychology Review (1997), pp. 323 et sqq ., at p. 323CrossRefGoogle Scholar, referring to preceding research contributions.

54 Tyler, “Psychological Perspectives on Legitimacy and Legitimation”, supra note 11, at p. 376.

55 OECD, The Goverance of Regulators , supra note 26, at p. 30.

56 For example, a regulator issuing an injunction to coerce certain corporate behaviour without a regulatory provision compelling this behaviour can be regarded as acting contra legem. After all, such practice may be contrary to the rule of law and is likely to breach legal principles regarding detournement de pouvoir and fair play. However, this is less clear–cut when it comes to informal regulatory practice as mentioned in subsection III.1 of this paper. In such practice, regulators may wield substantial influence over regulatee behaviour without resorting to formal enforcement measures.

57 Perez, “Courage, Regulatory Responsibility”, supra note 29.

58 Compare Ibid. and Coen, David, “Business–Regulatory Relations: Learning to Play Regulatory Games in European Utility Markets”, 18 (3) Governance (2005), pp. 375 et sqq .CrossRefGoogle Scholar

59 As pointed out by Tyler, “Psychological Perspectives on Legitimacy and Legitimation”, supra note 11, “The Psychology of Legitimacy”, supra note 53, such social stakeholder validation provides “psychological” legitimacy, that is largely derived from procedural justice: the authority exercising its authority through procedures that affected stakeholders experience as fair.

60 Moore, Mark H., Creating Public Value. Strategic Management in Government. Cambridge, Massachusetts, USA; London, England: Harvard University Press, 1995.Google Scholar

61 For instance, Almond (“Regulation Crisis”, supra note 52) derives from Habermas’ conception of legitimation two approaches to legitimation in the regulatory sphere: the regulator can be regarded as part of the political legitimating apparatus of the state, but regulators themselves are also capable of legitimizing their role. Compare also the aforementioned distinction between various views on what counts as risk (see Blanc, “Moving Away from Total Control”, supra note 6). According to Blanc, this results in three different potential bases for legitimacy: besides a legal and political perspective, Blanc also discerns a technocratic perspective, from which risk is conceived as a combination of likelihood and potential magnitude of hazards.

62 Ibid., at p. 333.

63 Sparrow, “Joining the Regulatory Fold”, supra note 7.

64 It should be stressed, however, that even in such a Public Architect type view the regulator cannot determine unilaterally what constitutes this value. After all, the definitions provided above indicate that external validation is a requisite for legitimacy. This implies that regulatory interventions are ultimately granted their legitimacy by the society to which they aim to add such value.

65 Sparrow, The Regulatory Craft , supra note 3.

66 Sparrow, The Character of Harms , supra note 41, at p. 27 et sqq .

67 Moore, Creating Public Value , supra note 60.

68 Ibid., at p. 10.

69 Groenleer, Martijn and Gabbi, Simone, “Regulatory Agencies of the European Union as International Actors. Legal Framework, Development Over Time and Strategic Motives in the Case of the European Food Safety Authority”, (4) European Journal of Risk Regulation (2013).Google Scholar

70 Lyon and Maxwell, “’Voluntary’ Approaches to Environmental Regulation”, supra note 11.

71 Kagan et al., “Explaining Corporate Environmental Performance”, supra note 11.

72 OECD, The Goverance of Regulators , supra note 26, at p. 36.

73 Moore, Creating Public Value , supra note 60; Sparrow, The Regulatory Craft , supra note 3.

74 Indeed, as regulators engaging in RIBLs cannot legally coerce regulatees to comply with their objectives and are therefore likely to depend on the regulatees’ own motivation to do so, research on inducing corporate compliance motivation seems an appropriate theoretical source for this aspect of the proposed typology.

75 May, Peter J., “Regulation and Compliance Motivations: Examining Different Approaches”, 65 (1) Public Administration Review (2005), pp. 31 et sqq CrossRefGoogle Scholar. May and co–authors arguably provide the most prominent contribution to contemporary scholarship on regulatory efforts to induce legal compliance motivation. See also references supra note 23.

76 Norman, Wayne, “Business Ethics as Self–Regulation: Why Principles that Ground Regulations should be used to Ground Beyond–Compliance Norms as Well”, 102 (1) Journal of Business Ethics (2011), pp. 43 et sqq .CrossRefGoogle Scholar, advocates actually employing the conceptual framework of legal compliance in the analysis of “beyond compliance” behaviour.

77 E.g. McBarnet and Whelan, “The Elusive Spirit of the Law”, supra note 17.

78 See e.g. McBarnet, “After Enron Will ‘whiter than White Collar Crime’ Still Wash?”, supra note 2.

79 Ibid., at p. 1099.

80 Winter and May, “Motivation for Compliance”, supra note 25, at p. 676.

81 Gunningham et al., “Social License and Environmental Protection”, supra note 23.

82 Kagan et al., “Explaining Corporate Environmental Performance”, supra note 11, at p. 84).

83 Rob van Tulder, Fabienne Fortanier, and Andrea Da Rosa, “Linking Inclusive Business Models and Inclusive Growth”, Working Paper Series , October 21, 2011, http://hdl.handle.net/1765/77648.

84 Kagan et al., “Explaining Corporate Environmental Performance”, supra note 11.

85 Howard–Grenville et al., “Constructing the License to Operate”, supra note 23; Prakash, “Why do Firms Adopt ‘Beyond–Compliance' Environmental Policies?”, supra note 23.

86 Bartel and Barclay, “Motivational Postures and Compliance”, supra note 25. Especially in a context of recurring contact, relationships between regulator and regulatee tend to be complex ( Hall, Jilly and Pretty, Jules, “Then and Now: Norfolk Farmers' Changing Relationships and Linkages with Government Agencies during Transformations in Land Management”, 13 (6) Journal of Farm Management (2008), pp. 393 et sqq Google Scholar.).

87 Compare the “talk softly but carry a big stick” philosophy of the responsive regulation approach (e.g. Ayres and Braithwaite, Responsive Regulation , supra note 11, at p. 19).

88 Coslovsky et al., “The Pragmatic Politics of Regulatory Enforcement”, supra note 27, at p. 6.

89 This research would be in line with the prevalent insight, provided primarily by “responsive regulation” (Ayres and Braithwaite, Responsive Regulation , supra note 11) and “really responsive regulation” (Black and Baldwin, “Really Responsive Risk-Based Regulation”, supra note 11) contributions, that regulatory issues should be viewed through multiple lenses in order to adequately account for the specific setting.

90 An extended typology might for example elaborate further on the motives of regulators to engage in RIBLs, or on the types of instruments employed.

91 OECD, The Goverance of Regulators , supra note 26.

92 Schneider, “Discretion and Rules”, supra note 44, at p. 88.