Scott, Colin --- "Regulating Private Legislation" [2008] ELECD 198; in Cafaggi, Fabrizio; Muir Watt, Horatia (eds), "Making European Private Law" (Edward Elgar Publishing, 2008)

Book Title: Making European Private Law

Editor(s): Cafaggi, Fabrizio; Muir Watt, Horatia

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201980

Section: Chapter 11

Section Title: Regulating Private Legislation

Author(s): Scott, Colin

Number of pages: 15

Extract:

11. Regulating private legislation
Colin Scott

1. INTRODUCTION
The development and application of binding rules have never been the sole
preserve of governments. Indeed, the medieval guilds undertook the bulk of
regulation relating to `trade, labour and production' prior to the emergence of
modern nation states in Europe.1 Legal realists, writing in the first half of the
twentieth century, sought to expose the myth of state sovereignty, pointing to
the power of private actors to both enforce2 and make law.3 Within contem-
porary 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.
In this chapter I offer 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 penum-
bral area of norms which appear to steer behaviour but without any obvious
means of legal enforcement. A further question relates to the nature of private
legislators. The second part of the chapter addresses the normative issues
concerning the legitimacy of non-governmental rule making. Legitimacy is a
product of both effectiveness and the surrounding mechanisms for review and
accountability of private law makers. The extent to which we are comfortable
with private legislation may be a product, to some extent, of the narratives we
tell about their ...