The legitimization of non-state regulation in networked normative orders

Project management: Prof. Dr. Klaus Dieter Wolf

Normative orders exist in a plurality in which non-state forms of norm-setting and norm implementation complement state regulations both within the state and in the space beyond the state. Their interaction takes various forms. On the one hand, governmental and intergovernmental regulators can still define the space for non-state forms of regulation, initiating, permitting or suppressing them. On the other hand, the traditional justifications for the legitimacy of state regulation are coming under pressure. Legitimation narratives must redefine both their purpose and their justification.
The overarching research interest was in the question of whether the privatization and transnationalization of political order formation is accompanied by a general loss of significance of democratic legitimation standards. This expectation was based above all on the emergence of the neoliberal (de)regulation paradigm, which is primarily oriented towards output legitimation, as well as on the increasing participation of non-state actors in the formation of order, whose authority is generally based on legitimation principles other than democratic ones.
The search for a possible change in the reference points for the legitimation of normative orders was carried out in close cooperation with the Max Planck Institute for European Legal History, which analyzes similar questions from a legal history perspective. For both sub-projects, a grid of categories and questions was developed in regular project meetings. Are legitimation narratives for state and non-state regulation systematically different or do they refer to the same normative justifications? Do changes in the prevailing forms of regulation also cause changes in the legitimation narratives? Finally, the project also aims to evaluate legitimation patterns for state and non-state forms of regulation from a normative perspective.
In order to expand the basis for comparison within the framework of our joint research to include as many different cases of public, private and hybrid norm-setting as possible, renowned international researchers were involved in the project through a joint workshop held at the MPI in April 2016, which gave them the opportunity to contribute their research on legitimation discourses at the local, regional, national and transnational levels from the early 20th century to the present day.
The results of this joint project were published in March 2017 under the editorship of the project leaders as the special issue “Legitimization of Private and Public Regulation: Past and Present” of the peer-reviewed open access journal “Politics and Governance”. In an overall view of the findings, no salient pattern could be identified that would provide a simple answer to the overarching question. The significance of legitimacy criteria changes over time and is primarily context-dependent. The exercise of regulatory functions by non-state actors meets with particular approval when the political order is perceived to be in crisis. Private regulators tend to be judged less by democratic standards as long as the prerogative of the state persists. It was also possible to reconstruct discourses in which the justification dispute between state and private contributions to the formation of order refers to the same standards of legitimacy.

The most important publications of the research project:

Wolf, Klaus Dieter/Stefanie Herr/ Carmen Wunderlich/Svenja Gertheiss: Resistance and Change in World Politics. International Dissidence Houndmills: Palgrave Macmillan, 2017.

Wolf, Klaus Dieter/Peter Collin/Melanie Coni-Zimmer (eds.): “Legitimization of Private and Public Regulation: Past and Present”, in: Politics and Governance 5(1), 2017, therein: “Editorial” as well as further articles.

Wolf, Klaus Dieter and Melanie Coni-Zimmer: “Empirical Assessment of (Policy) Effectiveness – The Role of Business in Zones of Conflict”, in: A. Schneiker and A. Kruck (eds.),Methodological Approaches for Studying Non-state Actors in International Security – Theory & Practice, London: Routledge, 2017.

Flohr, Anne: Self-Regulation and Legalization: Making Global Rules for Banks and Corporations, Basingstoke/Houndmills: Palgrave Macmillan, 2014.

Flohr, Anne: “A Complaint Mechanism for the Equator Principles – And Why Equator Members Should Urgently Want It”, in: Transnational Legal Theory 5(3), 2014, pp. 442-463.

people in this project:

Project management / contact person

Wolf, Klaus Dieter, Prof. Dr.

Project staff

Coni-Zimmer, Melanie

Flohr, Anne, Dr.