A Constitutional Framework for Private Governance
39 Pages Posted: 14 May 2001
Regulation is almost a synonym for public law. Government, relying on its sovereign powers, intervenes into freedom for the sake of social betterment. Reality less and less coincides with this traditional picture. Regulation is increasingly replaced by private or hybrid governance, i.e., by blends of private and public elements. Constitutional doctrine is not well prepared for the ensuing four-polar conflict. The four actors are government, the private regulator, its addressees, and the protectees. Constitutional doctrine treats private regulation as an exercise of freedom. The interest of protectees in good governance consequently lacks constitutional status. The conflict between private regulators and addressees is treated as if it were a normal conflict between two groups of individuals having opposing interests. An appropriate solution makes a difference between the constitutional protection of freedom and autonomy. The German constitution does indeed also protect autonomy, of municipalities, public broadcasters, universities, and private regulators. But the scope and level of protection against governmental interference reflects the governance task of private regulators. In a second respect, constitutional doctrine also ought to be amended. Private governance is rarely governance by law. It more often relies on social norms, technical code, incentives, or mixtures of legal with non-legal governance tools. The normative value of governance by law can be reflected in objective constitutional law. Finally, from all this a first set of insights can be derived for the constitutional treatment of hybrid governance.
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