Magnituds i unitats de mesura de les radiacions òptiques

Non-enforcement refers to a variety of practices, strategies and/or conditions that result in minimal or no state intervention, or an inability or unwillingness of the state to intervene. The most notable form of non-enforcement is that of self-regulation by business, although practices such as ‘regulatory capture’ and ‘accommodation and collusion’ may also lead to non-enforcement (see 2.8 below). As Ogus (1994: 108-109) notes, self-regulation regimes cover a wide range of institutional arrangements and can differ according to the following variables: the degree of monopolistic power (e.g. whether all suppliers in a given market are regulated); the degree of formality (e.g. is legitimacy derived from a legislative framework?); their legal status (e.g. are the rules binding?); and, the degree to which outsiders participate in rule formulation and enforcement, or in other ways supervise the system. In other words, self-regulation may refer to non-legally binding standards established for a particular firm or industry, or to rules formulated by a self-regulatory agency but approved by the state, as in enforced self-regulation above. Gill (2002: 536) suggests that in legal markets, it is self- regulation within an industry that will be viewed as the desired outcome of effective education and self-control. He goes on to suggest that due to the limitations of the sovereign state, and the power and knowledge problems that arise, the autonomy of some areas of social life has become so extensive that the notion of effective outside regulation is abandoned. As Clarke (1990: 225) states, ‘the private context of business offences, their complexity and frequently their ambiguity make the formality and precision characteristic of

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law difficult and require the extensive commitment of resources, which, as in all legal enforcement systems, are limited’. Consequently, governors are forced to abandon ideas of effective outside regulation and aim for the mere triggering of self-regulatory processes (Teubner, 1998: 406-409).

Preferences for self-regulation can reflect the difficulties caused by the use of the criminal

law. As Clarke (1990) notes, the polarising impact of legal proceedings on involved parties can lead to increased antagonisms: while this may be acceptable with offences sufficiently serious to warrant the ejection of the offender (if an accountable offender can be located) from privileged business environments and subsequent stigmatisation, such polarisation conflicts with the negotiated character of business crime. Thus, Clarke suggests there are strong grounds for dealing with misconduct by negotiation rather than simple condemnation and sanction as more often than not, there is more to play for than a judgement or conviction – condemnation of an act is not the issue, but rather the negotiation of an agreed practice (Clarke, 1990: 225). In other words, of most significance is an attempt to internalise improved control and compliance within the businesses themselves rather than increase criminal prosecution. This argument, however, appears to transcend the moral and symbolic dimensions of criminalisation and enforcement. Additionally, Clarke suggests a criminal law prosecution is inapplicable even when public interest is involved as the concern is largely reparation and recovery of property and not fines and imprisonment, the involvement of the police is seen as a last resort. This renders public interest marginal and keeps business crime private. The issue of public interest is significant. Should shareholders, consumers, employees and so on be given only marginal consideration when regulating corporate bribery despite their significant, albeit indirect, involvement? The symbolic, moral dimension of prosecution is difficult to ignore when considering these complex cases of corporate bribery.

For Clarke (1990: 234-237) an appropriate regulatory system requires a capacity to identify offenders and to ensure offenders are not permitted to return and offend again. This, he argues, can be done by the implementation of three primary principles, identification, accreditation, and exclusion, and two subsidiary principles, compensation and rehabilitation. He suggests that such a system sounds like a simple licensing system which is

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indeed operative in certain sectors of business but may be too onerous and restrictive to be applied generally. Thus, achieving the objectives of prevention and protection to within acceptable levels varies from sector to sector dependant on the evident risks, opportunities and problems. He suggests:

‘Although state-administered licensing is the fullest version of the control system, it is hence not necessary or appropriate to all sectors. Most, including the financial sector, can be managed with the business sector undertaking the bulk of the administration of the system. Some sectors, despite known and persistent problems of abuses, seem not to generate the political pressure for effective controls’ (Clarke, 1990: 238)

Clarke’s approach advocates the central role of business in regulation and compliance as opposed to state-intervention and criminal prosecution although he acknowledges the requirement of the latter in certain circumstances. In other words, to most effectively deal with business crime, a system based on internalising improved compliance and methods of control within businesses themselves, and encouraging businesses themselves to regulate these issues is most appropriate. This latter point is one that few would dispute as having companies that self-regulate and ensure correct behaviour is clearly a positive. In terms of corporate bribery, this may be occurring with numerous companies such as Siemens (and others that were ‘caught’) now implementing stringent compliance regimes. The extent to which this is evident in business as a whole cannot be said without further research.

Critique of such models of self-regulation has come from those advocating deterrence approaches. Slapper and Tombs (1999: 180-183) have argued that self-regulation can only work if used as part of an approach incorporating multiple credible enforcement techniques. Such critique often reflects the concern that such ‘creative compliance’ may honour the letter rather than the spirit of the rules (Baldwin et al., 1998: 20). Despite the above, Clarke does argue that the law remains important. First, it is an important sanction of last resort with criminal prosecution an essential means of enforcement for extreme cases. Second, it can act as a background, both providing a framework for understanding, debating and identifying misconduct, and as a resource in negotiation. Clarke (1990: 226-27) notes, ‘*t+hreat of recourse to the law is certainly a useful weapon in achieving compliance, though…it is frequently not in practice to be relied upon’ – this, however, appears to

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contradict his advocacy for negotiation ahead of condemnation, for the role of a ‘threat’ in negotiation seems counter-intuitive.