Edited by Fabrizio Cafaggi and Horatia Muir Watt
Chapter 11: Regulating Private Legislation
Colin Scott 1. INTRODUCTION The development and application of binding rules have never been the sole preserve of governments. Indeed, the medieval guilds undertook the bulk of regulation relating to ‘trade, labour and production’ prior to the emergence of modern nation states in Europe.1 Legal realists, writing in the first half of the twentieth century, sought to expose the myth of state sovereignty, pointing to the power of private actors to both enforce2 and make law.3 Within contemporary discussions, recognition of private legislation reflects both a desire to better understand the diffuse nature of capacities underpinning regulatory and wider governance practices and a concern respecting the legitimacy of such non-governmental rule making. In this chapter I offer some analysis of the nature of private legislation. A central consideration is what makes such rules binding – and there is no single answer to this. The issue of bindingness alerts us to the existence of a penumbral area of norms which appear to steer behaviour but without any obvious means of legal enforcement. A further question relates to the nature of private legislators. The second part of the chapter addresses the normative issues concerning the legitimacy of non-governmental rule making. Legitimacy is a product of both effectiveness and the surrounding mechanisms for review and accountability of private law makers. The extent to which we are comfortable with private legislation may be a product, to some extent, of the narratives we tell about their legitimacy. Fernand Braudel, The Wheels of Commerce (London: Harper Collins,...
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