The engineer's dilemma: A sociological perspective on juridificaton and regulation

Juridification refers to the tendency fororganisations and individuals subject toregulation to be overwhelmed by detailedrules, standards and instructions. Manyresearchers have argued that suchover-prescriptiveness can in fact underminethe likelihood that a business orindividual will comply. Though proceedingfrom different theoretical perspectives,writers such as Braithwaite, Teubner andPatterson all argue that juridification canbe minimised by improving regulatorystrategies and techniques. Instead of beingrule bound and relying on detailedprescriptions, authorities should becomemore flexible and outcome-oriented. Thispaper uses the case-study of a ChiefEngineer in an Australian public hospitalto contest the view that juridification canbe reduced simply by improving regulatorytechniques. Drawing on Habermas, it arguesthat juridification is the product ofdeep-seated crisis tendencies in latemodern capitalist democracies. Fiscal andlegitimacy problems are causing governmentsand regulatory authorities to pressure theengineer to try to satisfy contradictorydemands. Simultaneously he must be acost-conscious entrepreneurial risk-managerwhile not losing sight of his role as arisk-averse maintainer of professionalstandards. The plethora of rules andregulatory standards which surround theengineer reflect government desire todistance itself in the event that economicpressures cause him to incur risks that thepublic and media deem unacceptable.Ultimately, therefore, the engineer'sjuridification problems have a politicaldimension. To the extent that they helpobscure this, theories that suggestjuridification can be solved by improvingregulatory techniques have an ideologicalfunction.