The Conceptual and Constitutional Challenge of Transnational Private Regulation

19 Pages Posted: 28 Feb 2011

See all articles by Colin Scott

Colin Scott

University College Dublin (UCD)

Fabrizio Cafaggi

Independent

Linda A.J. Senden

Tilburg Law School

Date Written: February 22, 2011

Abstract

Transnational private regulation (TPR) is a key aspect of contemporary governance. At first glance TPR regimes raise significant problems of legitimacy because of a degree of detachment from traditional government mechanisms. A variety of models have emerged engaging businesses, associations of firms, and NGOs, sometimes in hybrid form and often including governmental actors. Whilst the linkage to electoral politics is a central mechanism of legitimating governance activity, we note there are also other mechanisms including proceduralization and potentially also judicial accountability. But these public law forms do not exhaust the set of such mechanisms, and we consider also the contribution of private law forms and social and competitive structures which may support forms of legitimation. The central challenge identified concerns the possibility of reconceptualizing the global public sphere so as better to embrace TPR regimes in their myriad forms, so that they are recognized as having similar potential for legitimacy as national and international governmental bodies and regulation.

Suggested Citation

Scott, Colin David and Cafaggi, Fabrizio and Senden, Linda A.J., The Conceptual and Constitutional Challenge of Transnational Private Regulation (February 22, 2011). Journal of Law and Society, Vol. 38, Issue 1, pp. 1-19, 2011. Available at SSRN: https://ssrn.com/abstract=1772393 or http://dx.doi.org/10.1111/j.1467-6478.2011.00532.x

Colin David Scott (Contact Author)

University College Dublin (UCD) ( email )

Belfield
Dublin 4
Ireland

Fabrizio Cafaggi

Independent ( email )

No Address Available

Linda A.J. Senden

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

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