Whistleblowers as regulatory intermediaries: Instrumental and reflexive considerations in decentralizing regulation

Abstract

This article frames whistleblowers as regulatory intermediaries who provide a response to the problem posed by the fragmentation of knowledge in a complex society and market economy. I identify two ways in which whistleblowers become regulatory intermediaries: The first is by remedying informational asymmetries between the regulator and the target (instrumental approach). Both in the United States and in the European Union, whistleblowers are protected on the basis of the value of the disclosed information for the advancement of regulatory objectives. The second way in which whistleblowers become regulatory intermediaries is by contributing to the development of “communities of compliance” and by enhancing the internal self-regulatory capacities of regulatory targets (reflexive approach). Creating internal channels of reporting and monitoring is perceived as a way to change the organizational culture of targets. Through the instrumentalism – reflexivity dipole, competing rationales and normative visions of regulatory intermediation become apparent: It could, on the one hand, facilitate state intervention and legal sanctions or, on the other hand, signal the aspiration to embed public and social values in private actors.