A “New Interplay” Between State and Nonstate Actors in Governance by Rule Making

The more intensively one engages the manifestations and functional conditions of nonstate regulatory systems, the more obvious it becomes that one is not dealing with either the dichotomous opposition of state and nonstate lawmaking—and not with a categorical “either/or”—or with manifold variants of rule making between the state and society (Augsberg 2003). To demonstrate this finding, which is ultimately difficult to question, I shall limit myself to four key headings, explained briefly here.

Rule Making in the Shadow of the Law

What is meant by this key heading can perhaps best be explained using the example of the German Corporate Governance Code (Deutscher Corporate Governance Kodex, CGK). This nonstate and nonlegally binding code of conduct was formulated by a commission established by the federal government, publicized in the German Federal Gazette and referred to in section 161 of the German Stock Corporation Act (Aktiengesetz) to the extent that companies quoted on the stock exchange are subject to a duty to disclose whether they wish comply with the code or not (“comply or explain”). As summarized by Johannes Kondgen (2006, 496), “if one attempts to make sense out of all that, the status of the CGK can best be described using a variation of a formula familiar in the German sociology of law for 30 years: the code is ‘rule-making in the shadow of the law.’ It is state-initiated private law-making, subject, however, to the state’s right of revocation at any time.”

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