Performative Regulation: a Case Study in How Powerful People Avoid Criminal Labels

Mackenzie, S. and Green, P. (2008), ‘Performative Regulation: a Case Study in How Powerful People Avoid Criminal Labels’, British Journal of Criminology, 48 (2), 138-53.

This paper explores the role of invested powerful business actors in the criminalization process as applied to the illicit antiquities market. We present a case study of the precise mechanics of the role played by trade interests in the formation of the Dealing in Cultural Objects (Offences) Act 2003. This process involved the trade’s entering appearance in the legislative process and neutralizing the possible constraining effects on its members of the new criminal offence which was to be created. We begin by exploring the political, historical and economic context in which discussion of the terms of the 2003 Act first began. We then follow the Act from its genesis through its various stages of drafting and re-drafting to its enactment. This case study of a single piece of legislation provides further data to add to the line of prior research that illustrates that powerful white-collar criminals, as well as sometimes preventing criminal legislation entering the statute books, can also influence the design of criminal legislation that does enter the statute books in order to protect themselves and their own business interests. We also use this case study of a process of contemporary lawmaking to outline the concept of performative regulation: broadly, that which in appearance serves political ends but in practice effects an inconsequential level of control.