Rule Making That Replaces the State: The World of Standards and Standard Setters

To conclude my overview, I would like to take a brief look at the world of standards, a world that is increasingly gaining significance (Brunsson and Jacobsson 2000). Because standards close a regulatory gap left open by the nation-states, either voluntarily through the “outsourcing” of legislation (Rothel 2007) or involuntarily due to a lack of transnational regulatory competence, standard setting is progressing to become a central type of regulation beyond the nation-state. This aspect will not be examined in greater detail here; what I will focus on instead is the question as to whether requirements of this kind of nonstate standard setting are made and how these requirements are specified. In this way, I can, perhaps, obtain an initial indication as to the character of a meta-law of nonstate lawmaking, which will also assist with exploration of areas of limited statehood.

Standards are not limited to the formulation of technical or scientific insights, and in particular those that define limit values or specify in another way what is authorized or reasonable. But standards also express political compromises and processes of public understanding. The similarity of standardization and lawmaking was pointed out by Harm Schepel (2005, 6). In his opinion, standards are rarely derived “from the customs and practices of social life or deduced from the immutable laws of nature. Standards are products of discussion, negotiation, deliberation and compromise between engineers, manufacturers, academic experts, professionals, trade unionists, representatives of consumer organisations and public officials meeting in boards, committees, task forces and working groups in associations and other organisations.” Standards interlock different social perspectives as they “bring to the table economic, political, moral and technical arguments and ultimately arrive at a solution that will to some extent hurt some groups and in some degree benefit others—consumers or producers, importers or domestic manufacturers.” Summing up, Schepel calls standardization a “microcosm of social practices, political preferences, economic calculation, scientific necessity, and professional judgement” that “looks a lot like lawmaking.”

As rule making through standardization is similar to lawmaking, similar normative requirements—“standardization standards”—apply. This claim is brought forward by Harm Schepel (2005, 6) when he points out that “standardisation procedures have developed into a remarkably consistent set of truly global principles of ‘internal administrative law.’ ” He identifies five aspects that the standardization procedures—“partly influenced by legal instruments, partly by the ethics of the engineering and other professions and structured by an extensive process of global reciprocal normative borrowing between the public and private spheres at various levels”—provide for at a minimum:

1. Elaboration of draft standards in technical committees with a balance of represented interests (manufacturers, consumers, social partners, public authorities); 2. A requirement of consensus on the committee before the draft goes to; 3. A round of public notice and comment, with the obligation on the committee to take received comments into account, 4. A ratification vote, again with the requirement of consensus rather than mere majority, among the constituency of the standards body, and 5. The obligation to review standards periodically.

Thus, what is mainly involved here are requirements relating to the organization and process of standardization, which can be summarized under the heading of “structural requirements” of standardization. How these struc-

Four principles of organization for an international standardization body. Source

figure 3.1. Four principles of organization for an international standardization body. Source: Tamm Hallstrom 2000, 93.

tural requirements can be developed in detail and postulated normatively will be discussed in the next section.

In her article entitled “Organizing the Process of Standardization,” Kristina Tamm Hallstrom (2000) presented four organizational principles, which are represented graphically in figure 3.1. This brief look at the world of standards should suffice, and in my view, the time has come to draw some interim conclusions.

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