How to undo things with words? Explication and the counterperformative effects of regulation

Abstract

Policymakers implement regulations with limited capacity to register the unexpected. We argue that unexpected events do occur when regulations are implemented and we develop the concept of explication to account for the performative misfires that generate them. Explication is the organisational process that allows abstract ideas to be transposed into material realities and it allows us to identify how regulatory texts can carry signs and intentions in absence of their authors. We investigate the implementation of Markets in Financial Instruments Directive (MiFID), a regulatory package that generated a market context that was significantly different from what its economic programme sought to achieve. The competitive model underlying MiFID aimed to create a level-playing field among European financial markets but in reality its explication reduced transparency. We make four contributions to organisation studies. First, we show that explication is a source of contingency in implementation. Second, we shed light on the individual and collective hermeneutic performance as the source of counterperformativity. Third, explication brings intention back into the discussion: intention emerges from the unintended consequences borne by regulatory texts from the moment interpretation begins. Fourth, we show how explication can be a widely useful concept in organisation studies because it brings the performativity of language back into material semiotics whilst maintaining a place for contingency.