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A Constitutional Framework for Private Governance

39 Pages Posted: 14 May 2001  

Christoph Engel

Max Planck Institute for Research on Collective Goods; University of Bonn - Faculty of Law & Economics; Universität Osnabrück - Faculty of Law


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.

Suggested Citation

Engel, Christoph, A Constitutional Framework for Private Governance. MPI Collective Goods Preprint, No. 2001/4. Available at SSRN: or

Christoph Engel (Contact Author)

Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
+049 228 914160 (Phone)
+049 228 9141655 (Fax)


University of Bonn - Faculty of Law & Economics

Postfach 2220
D-53012 Bonn

Universität Osnabrück - Faculty of Law

c/o Prof. Dr. Schneider
Osnabruck, D-49069

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