My thesis, to the effect that it makes little sense to consider self-regulation and state lawmaking as dichotomous opposites, finds valuable support in the ideas of Thomas Conzelmann and Dieter Wolf. They (2007, 175) suggest that one should understand the relationship between private self-regulation and state lawmaking as a relationship based on the functional division of labor between public and private actors. In their opinion, the idea of the opposition of public and private sector regulation is misleading. Rather, private- sector self-regulation can only function as a form of governance embedded in a public regulatory structure if it is to contribute to governance compatible with the common good. In return it can underlie, complement, and unburden public regulation and compensate for the inherent deficits and limitations of pure interstate governance.
However, if the relationship involved is one based on the functional division of labor, it is necessary to determine the relevant share—or as one would, perhaps, express it in criminal law, determine the relevant “contribution to the act”—of the state or private actor. Conzelmann and Wolf (2007, 175) distinguish five different dimensions of the role of the state in the concept of “embedded self-regulation” It
(1) provides the constitutional framework for private self-regulation and ensures the functioning of the markets and of a critical public; (2) plays a part in the design of the regulatory environment of private self-regulation and (co-) legitimates the standards represented there; (3) maintains the possibility of a binding public regulation as a fall-back option so as to, first, link the self-regulation initiatives back to common-good criteria and, second, to further develop minimum standards of socially and ecologically responsible action; (4) supports monitoring systems for private selfregulation; and (5) avoids negative external effects through the linking and coordination of different sectoral self-regulation initiatives.