Interim Conclusions

If one reviews the outcome of the reflections presented thus far, the following insights would appear to be noteworthy:

  • 1. Private regulatory systems are particularly likely to emerge, be enforced, and implemented if they are based on an existing institutional infrastructure, in particular in the form of a social or religious network. The more close-knit the network and the more homogenous the social group in question, the more the enforcement and implementation of the rules can be guaranteed through the governance mode of “governance by reputation.”
  • 2. Private regulatory systems are particularly effective when the supporting infrastructure is associative in nature. The more monopolistic and hierarchical this associative structure is, the more likely the self-defined association law is to be enforced among the individual members of local associations. Private association law clearly reaches its limits in cases in which the protection of the basic rights of its members is at stake and against which they can appeal to the state courts, or in cases in which the regulatory problem assumes such a high level of societal relevance that it calls for a solution that goes beyond the association.
  • 3. Private regulatory systems with a high level of de facto binding force raise legitimation problems from the perspective of the individual, as a nonstate selfregulation can also mean heteronomy and, in view of its enforcement claim, requires justification. The examination of standards and other self-regulatory rule systems reveals that certain criteria are required to qualify a regulatory system of de facto binding force as worthy of compliance. The following may be considered as such criteria:
    • • First, a certain level of authority of the rule-setting institution, be this authority based on knowledge or expertise (as in the case of standards) or—in the Weberian sense—on tradition, charisma, or religious authority.

• Second, certain requirements of the composition and procedures of the standard-setting bodies to guarantee maximum possible representativeness and responsiveness of the standard setting.

Which of these criteria assumes the prominent position differs according to the type of regulatory system in question and the nature of the political culture that prevails in a social and political community.

4. Private regulatory systems do not in essence stand in opposition to state rule making, but can substitute it to varying degrees, complement it, or be based on it so as to prove worthwhile regulatory options. Moreover, the relationship between the enforcement of state and nonstate law is always precarious and in need of clarification based on the field of action in question.

This last observation prompts us to reflect on the relation between state and nonstate lawmaking more systematically and in greater detail in the next section.

 
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