Smart Technologies in Lawmaking: Towards the Concept of Smart Regulation

Abstract

Purpose: The paper distinguishes between closely related yet not identical concepts related to the development of an optimal legal policy in modern developed economies: less regulation, better regulation, and smart regulation. Design/Methodology/Approach: The work is based on comparing smart regulation as an academic construct and as a regulatory practice in combination with other approaches to managing regulatory impact. Modern methods of smart regulation are assessed from the perspective of their consistency with the concept of “smart” which is conventionally used with regard to different instruments/technological devices (such devices consume less resources, while opening up more opportunities). Findings: In consequence of the research, the author concludes that smart regulation: (1) saves regulatory instruments (intervenes only where appropriate and to the extent necessary); (2) does not rely on own resources, exerting influence at different levels, engaging any actors whose involvement may help in achieving the objective, as surrogate regulators; (3) does not rely on the intelligence of the regulator, requiring smooth systematic interaction of all parties to the regulatory process during the improvement of the norm; (4) uses a set of different means, including those that are not traditionally considered to be strictly legal; (5) relies on experiments and the need for continuous testing of various combinations of regulatory instruments in search of the most effective combination of them; (6) includes all the progress made in other legal regulation concepts (less regulation, better regulation), but unlike them, it shifts the emphasis from the regulatory process to its outcome in an attempt to understand what exactly is preventing from obtaining it and to achieve it in the least onerous way. Originality/Value: To exemplify the instruments that are capable of addressing the problem in a pinpoint way, the paper presents the combination of command and control regulation with voluntarism and information strategies, nudging, regulatory sandboxes, digitization and automation of the processes of interaction between the participant of legal relations with the State. The success of these instruments depends largely on providing the opportunity to display initiative, to bring a sense of free will, not to subordinate a person to the will of the State, but to form a cooperative relationship that would be much less resource-consuming, more productive and reasonable.