Research Paper Number

22/2007

Colin Scott

Document Type

Article

Publication Date

2007

Keywords

accountability; legislation; legitimacy; non-state actors; Regulation

Abstract

The development and application of binding rules has never been the sole preserve of governments. Within contemporary discussions, recognition of private legislation reflects both a desire to better understand the diffuse nature of capacities underpinning regulatory and wider governance practices and a concern respecting the legitimacy of such non-governmental rule making. This paper offers some analysis of the nature of private legislation. A central consideration is what makes such rules binding - and there is no single answer to this. The issue of bindingness alerts us to the existence of a penumbral area of norms which appear to steer behaviour but without any obvious means of legal enforcement. The very concept 'private legislation' implies some normative problem, the appropriation by non-state actors of an essentially public function. The paper suggests that this problem can best be tackled not be seeking to apply traditional public accountability mechanisms to all private legislation, but rather by re-casting the narrative of legitimacy to better accommodate the diverse mechanisms through which private legislative processed might be legitimated.

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