The European Commission and the construction of information society : regulatory law from a processual perspective
The focus of this thesis is on information society regulation in Europe and on the European Commission when forming legislative proposals and implementing laws by means of decentred and flexible regulation, respectful of difference, seeking to promote the engagement of diverse interested parties in the formation of laws affecting them. I seek to explain the above processes in a dynamic way, breaking away with a conceptualisation of regulation as (only) efficiently pursuing the public good and neutrally mediating among autonomous communities, and public administration as being (only) about reasoned choices and rational action. Bourdieu's theoretical tools are employed to argue that although it would be within agents' intention to design neutral rules and within regulatory law's original function to promote participation and deliberation, law encapsulates a vision that outruns its function and agents perceive the social world in a way that outruns perception. To illustrate this, I look at the following case studies: Architectural solutions introduced by the industry in DVDs to prevent copying, domain name dispute resolution by ICANN, Internet filters used to block harmful material on the net, and the proposal to introduce patent protection in computer-implemented inventions in the EU. In a nutshell, in the above instances the European Commission strives to reproduce or preserve its juridical, technocratic, social and symbolic capital, while one of the main strategies supported by its juridical capital is to sustain the belief in the neutrality and objectivity of regulatory law. However, the ways in which the administration perceives the potentialities inscribed in capital are subject to unspoken general cognitive schemas shaped by nationality and professional background, and by the subjective construction of notions such as recognition, reputation and communality, as formed in everyday interaction in the Commission. Yet, cognitive schemas and capital are not conceived as static, but as open to experience. In this way, although regulation is viewed as manifesting the freezing of power relations, dynamism is injected as all definitions in the field are potentially subject to re-definition, by virtue of struggles amongst the administration and interest groups, which, although they occupy different fields, strive to influence regulation. Redefinitions then result in re-orderings in the field, as for example, new forms of capital may enter it or cognitive schemas may be altered.