Who is Regulating the Self? Self-Regulation as Outsourced Rule-Making

Abstract

Self-regulation has become the buzzword of any modern and enlightened legislator. It is generally assumed that it has become impossible to steer society from one central point. Instead, it is said that governments should rely on self-regulating bodies, fields or networks. Multilevel governance is the banner, delegation of powers is the practice.Sympathetic as all this may sound, we should not be misled by terms. Self-governance or self-regulation are terms that in this context acquire a specific meaning. In multilevel governance, the pleasantly pluralist sounding prefix 'multi' tends to obscure the question how these different layers and levels precisely relate and who decides on what. The aim of this article is to elucidate the relations between the different levels. By investigating these relations, it will be possible to characterize - from a legal theoretical point of view - the types of rules that are made by all these self-regulating bodies, and the functions they acquire in these new contexts. In this article this specific meaning of self-regulation is linked to a style of regulation, currently in vogue and practiced by both the European legislator as well as the legislators of the member-states, that can be called 'goal-regulation'. In forms of goal-regulation, rules do not prescribe specific manners by means of which goals can be obtained, but prescribe the goals themselves in a straightforward manner. It is argued that the kind of self-regulation which figures in this form of goal-regulation differs in a number of respects from the classical more 'spontaneous' forms of self-regulation as they were identified and studied mainly in the sixties and seventies of the previous century. These differences can be clarified by making use of the Principal-Agent literature.The main difference is that in a goal-regulative regime, the self (the agent) is required by a principal to draft rules in order to achieve the aims of that principal. This difference accounts for the fact that the rules that are devised by these 'self-regulating' bodies not necessarily contribute to the aims of the Agent, and lose some important functions that are usually performed by rules.