Universität KonstanzExzellenzcluster: Kulturelle Grundlagen von Integration

Regulated Self-Regulation in Anglo-Saxon and Continental European Literature

Dr. M. Mercè Darnaculleta i Gardella


Both the national as well as the supranational authorities and international organs show increasing interest in the phenomenon of self-regulation, since this is increasingly understood as a successful alternative to the state regulation, especially when understood in the domain of regulating markets and civil society. If the introduction of forms of acceptance, self-control and transparency into models of self-regulation succeeds in increasing efficiency in the regulation of economic and social life, self-regulation already legitimizes itself from its success, becoming attractive as well for traditional legal sectors. From the point of view of public power, the interest in the phenomenon of self-regulation can be explained clearly. Yet questions remain: “How does one specifically organize the participation of national legal authorities with various instruments of self-regulation? Does this participation in all cases justify the legally binding nature of its result? Or does it concern more a form of a new social management with which the range of national participation is subordinated to the interests of increased efficiency?

Although there is a clear tendency for normative homogenization, increasingly (and with increasing intensity) finding expression in European legislation, so far this has not been accompanied by a theoretical harmonization on the part of doctrine. The proposed research aims to fill this vacuum with the help of a comparative legal study and the providing of a theoretical framework. The comparative analysis contains not only the study of the contributions of doctrine, but also the investigation of some paradigms of national and (European-)community legislation, independently of differing nomenclature and terminology. Nonetheless, there should be a sketch of a terminological map which proceeds from equivalent processes starting with the drafting to the actual introduction of a norm. Some terminological differences can be accounted for by the existence of non-transferable institutions, which makes the task of comparison doubtless more complex. Others, however, find the origin of the differences to reside simply in varying linguistic applications, which facilitate the determination of parallels.

The goal of studying the process of normative evolution cannot be the formation of a theory which is complete and closed unto itself. The various manifestations of self-regulation and regulated self-regulation reveal themselves in continuous and gradual development. Rather, the purpose of the investigation thus has to be to clarify parallels and differences in the forms of national participation in concrete cases, in order to develop a practical and operational concept of the regulated self-regulation.