Regulating Capability, Not Conduct: Why Europe’s next regulatory frontier lies inside system architecture

Source: Dev.to

For much of modern regulatory history, law has concerned itself with conduct—what actors do, how they behave, and whether their actions violate established norms. This approach assumes that behavior is the primary source of risk and that capability is neutral. When behavior deviates, law intervenes; when conduct complies, legitimacy follows. Digital systems have exposed the limits of this assumption.

Capability as the new locus of risk

Digital technologies shift risk from individual actions to the capabilities embedded in systems. The potential harms arise not only from what users choose to do, but from what the technology makes possible.

Europe’s strategic position

Europe is uniquely positioned to lead this transition. Its regulatory institutions possess legitimacy, its legal culture values restraint, and its citizens prioritize dignity over pure optimisation. By shifting focus from conduct to capability, Europe can align governance with technological reality while preserving rights‑based principles, thereby strengthening regulatory authority.

Beyond compliance culture

A compliance‑driven approach encourages minimal adherence to rules. In contrast, capability governance promotes structural responsibility: when systems internalise limits, compliance becomes implicit, oversight can be lighter, and trust becomes plausible. This shift marks the maturation of digital governance.

A redefinition of responsibility

Responsibility in digital systems cannot rest solely on behavior. It must extend to what systems are designed to enable. Regulating capability acknowledges that some risks are too great to manage reactively and that addressing the source of those risks—rather than merely their symptoms—is essential for democratic digital infrastructure.