Description of the Research Area

The General Problem

The concept of globalized self-regulation means more than the phenomenon of normative organization alone. In transnational society, self regulation is not limited to the formulation of private norms (normative self-regulation) but extends to both certifying norm fulfillment (determinative self-regulation) and resolving arbitration and settlement proceedings (conflict-solving self regulation). But this does not mean that self-regulation in these realms operates fully independently of state authorities and political power structures. In fact, the public authorities allow and support the concrete legal effectiveness of self-regulation, so that we can speak of a process of “regulated self-regulation”: a private activity aimed at the generation and control of norms, but an activity steered and controlled by the public authorities in the public interest.

Within this process, the state maintains its formal legislative monopoly. But at the same time, self-regulating societal structures multiply, increasingly taking on functions that since the nineteenth century were successively incorporated into the public authorities’ realm.

Examples

Such self-regulation has been emerging in highly varied sub-systems and contexts: in the framework of “new technologies,” it is manifest, for instance, in the role played by the Internet Society (ISOC), the World Wide Web Consortium (W3C), and the Internet Corporation for Assigned Names and Numbers (ICANN); in the advertising and communications sector, in prominent organs of self-control such as the European Standards Alliance (EASA), the European Advertising Tripartite (EAT), and the International Advertising Association (IAA); in the real of product quality and safety, especially in organs of standardization and certification such as the European Committee for Standardization (CEN) and the International Organization for Standardization (ISO). There are of course many additional examples.

Some of the self-regulatory structures have a very complex character, since they establish norms that even third-parties not belonging to the organization have to follow. Others are structured in a simpler manner, with both the organisms that devise the norms and control compliance and those subject to the norms being clearly and distinctly identifiable—the case, for example, with multinational corporations. Finally, there is a third kind of self-regulatory structure structures that can be considered diffuse as it does they do not emerge from formal organizations and its their norms are largely unwritten. The norms of cultural groups and movements are located within this domain.

Relevance of the Theme

The maintenance of order and civil peace is one of the essential functions of legitimate state-organized political rule. To this end, the state engages in regulative societal intervention. According to the traditional understanding, relations between state and society are based on a recognition of a state monopoly on legitimate force and a monopoly on defining the public interest through the establishment and application of legal norms. But at present, this borderline theoretically drawn between state and society is being eradicated at various points. In many realms, society’s participation in defining the public interest and transmitting genuinely state functions to private subjects, and, beyond this, in promoting phenomena tied to self-regulation and privatization, has led—despite the state’s enduring monopoly on force and law-making—to a cooperative relationship between the public authorities and private organizations.

When it comes to establishing norms, this transformation has had important consequences. In the established understanding of the state, the basic separation of the state’s legal system from societally-originating normative systems allows the state to retain its monopoly on producing and applying laws. A steady growth in technical, ethical, and cultural regulations with private or pseudo-state origins has increasingly called this monopoly into question; and through the forms of societal production of law emerging within globalization processes, at present the very foundations of our understanding of the state have become problematic.

Regulated self-regulation produces norms that according to general legal theory are no legal norms. In such a context, the question of the basic distinction between what is and is not law needs to be posed anew. The phenomenon of self-regulation forces fresh consideration of central postulates of both legal theory and theory of legal origins—a process of historization making them relevant for ongoing legal developments.