Questioning the Neutrality of Procedural Law: Internet Regulation in Europe through the Lenses of Bourdieu's Notion of Symbolic Capital

• DOI: http://doi.org/10.1111/j.1468-0386.2004.00203.x
• Author: Katerina Sideri
• Date: 01 January 2004
• Published date: 01 January 2004

Questioning the Neutrality of Procedural

Law: Internet Regulation in Europe

through the Lenses of Bourdieu’s

Notion of Symbolic Capital

Katerina Sideri*

Abstract: The main question addressed in this article concerns the role of law in regulat-

ing the Internet in Europe, while the focus is on the European Commission in the process.

The thesis advanced is that Bourdieu’s notion of capital may offer a view radically dif-

ferent to understanding regulatory law as objective and neutral, and to conceiving action

as being initiated to achieve certain policy outcomes. Based on the assumption that power

is at the heart of action, the argument is that the European Commission is predominantly

engaged in struggles to remain a crucial locus of governance and maximise its power as a

major think-tank. To follow this intuition, this article questions the extent to which decen-

tralised regulatory techniques have been effective in weakening mechanisms of control, as

power may now be exercised in novel and less visible ways and thus be misrecognised.

Unravelling the processes that disguise the effects of power will be done by virtue of three

case studies: Architectural solutions introduced in software by the industry with the aim

to combat illegal copying, domain names allocation by the Internet Corporation of

Assigned Names and Numbers (ICANN), and content regulation in the context of the

Safer Internet Action Plan.

I Introduction

There is currently a hot debate as to what form Internet regulation should take, in view

of the unique characteristics of the medium. The dominant view is that the role of law

should be confined to putting in place the correct procedures to enable the participa-

tion of communities in the making of rules that affect them. This view inextricably

European Law Journal, Vol.10, No. 1, January 2004, pp. 61–86.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Doctoral candidate, Law Department and Centre for the Analysis of Risk and Regulation, London

School of Economics. I would like to thank Tim Murphy, Colin Scott, and Andreas Panagopoulos for

their valuable comments on earlier drafts,and the participants of the Fifth Workshop on New Scholar-

ship in Public and Private International Law held at the European University Institute (EUI), Florence

(Italy) in 2002 and of the First International Workshop for Young Scholars organised by the Centre

d’Études et de Recherches Internationales et Communautaires d’Aix-Marseille III, Faculté de droit

et de science politique and European Law Journal, for providing the opportunity for discussions of the

ideas in the article. The usual responsibilities remain my own.

links to the general discussion about what the proper role of law is in a highly perplex

social world, but also draws attention to the decentralised character of the Internet,

which is uniquely positioned to accommodate the demand for free speech and infor-

mation flows. In the light of the above, neutral procedures entailing no normative

content and understood in the context of flexible regulatory instruments, are conceived

to be the way to escape the gripping effect of command and control rules,which intrude

and upset the lives of social systems and individuals.1

The aim of this article is to question the neutrality of procedures, my case study

being Internet regulation in the EU.The thesis advanced is that hierarchical power may

be exercised in novel ways, the theoretical tools to follow this intuition are provided by

Bourdieu’s notion of symbolic capital and the focus is on the role of the European

Commission in the process.

The first part of this article will give an overview of the underpinnings of the argu-

ment for proceduralising Internet regulation. The second part will elaborate on the

notion of symbolic capital with a view to arguing that a discussion on the possibility

of neutral and technisised procedures fails to take into account the indirect ways that

power may be exercised. To test this hypothesis, the following section will give exam-

ples drawn from different areas of Internet regulation. I will begin with architectural

solutions as developed by the industry,to then turn to scarce resources in the Internet

with special emphasis on the domain-names allocation system,and conclude with a

reference to the Safer Internet Action Plan.

II Proceduralisation, Decentralisation, and Internet Regulation

Proceduralisation implies shifting into a new paradigm challenging the command-and-

control approach to regulation. The reason for performing such a shift is partly because

rule-formation becomes decentralised under the pressure of globalisation, and partly

because it is becoming dependent on specialised knowledge, Internet regulation being

an example uniquely positioned to endorse both of the above justifications.

Proceduralisation though, is a term that encompasses many different approaches: it

can take the form of relocation of governmental functions, for example, to the market

or the civil society. It may also denote the partnership between the state and private

actors with the aim of achieving public ends. It can indicate the shift from state

regulation to community self-regulation, with state law retaining the role of establish-

ing the general conditions of negotiation. Lastly, it may point to the inclusion by gov-

ernments of interest groups in the decision-making process.2In all these cases,

regulatory law is called to provide the procedures and structures that would enable the

European Law Journal Volume 10

62 © Blackwell Publishing Ltd. 2004

1For a general theoretical and empirical articulation of the position that moves away from the command

and control approach to law and regulation, see for example, G. Teubner, Law as an Autopoietic System

(Oxford, UK; Cambridge, MA: Blackwell Publishers, 1993); U. Beck, The Risk Society: Towards a New

Modernity (London: Sage Publications, 1992); I. Ayres and J. Braithwaite, Responsive Regulation: Tran-

scending the Deregulation Debate (New York: Oxford University Press, 1992); P.Craig, ‘Democracy and

Law making in the EU’ in P. Craig and C. Harlow (eds), Lawmaking in the European Union (London

Boston: Kluwer Law International,1998); C. Scott, ‘The Proceduralisation of Telecommunications Law:

Adapting to Convergence’(1997) 1 Journal of Information Law and Technology.

2J. Black, ‘Proceduralizing Regulation-Part I’(2000) 20 Oxford Journal of Legal Studies 597, 600–601.