The Concept of Regulated SelfRegulation
Comments from a Criminal Lawyer's view
By professor HEIKE JUNG∗
Regulated self-regulation is identified as a concept denoting phenomena, developments, schemes and models in areas which were previously solely or mainly governed by state activity. With special reference to criminal law, present trends are identified, as well as considerations bearing on the proper limits of such decision-making.
I. Introductory remarks
”Regulated self-regulation” sounds catchy, yet at the same time the term leaves us somewhat puzzled. Already, regulation is a term which, until recently, maybe due to its sociological connotation, was not common among European lawyers. Despite our uneasiness, we notice that ”regulated self-regulation” is about to make a career in particular within the field of public and administrative law. We can also sense a touch of theory of law. A close-up reveals that, in dealing with regulated self-regulation, we are doing no less than revisiting the role of the state.
The state seems to have a bad press culminating in Bengoetxea’s provocative question ”L’Etat c’est fini?”1 The coalition of critics embraces neo-liberals, abolitionists and minimalists. The approaches and tendencies cut across ideological borderlines which is a characteristic trait of important social changes. Anglo-American criticism of the welfare state has set the tune. Deregulation, decentralisation, privatisation, are some of the key issues in the debate. ”Regulated selfregulation” stands in the tradition of these strands of thought. Its particular fascination may have to do with the fact that this expression lends itself to somewhat contradictory associations. Though the emphasis seems to be clearly on self-determination, the reference to regulation is certainly of more than just ornamental nature. Of course, ”regulated self-regulation” reminds us of the concept of ”Privatautonomie”, the underlying principle of private law. Public lawyers will, however, tend to underscore its specificity which is derived from its strong affiliation with the theory of the state. Pro-
∗ Lecture presented in connection with the conferment of the degree of Juris doctor honoris causa by the Uppsala Faculty of Law, 26 May 2000.1 Bengoetxea, L’Etat c’est fini?, Rechtstheorie, Beiheft 15, Recht, Gerechtigkeit und Staat, Berlin 1993, p. 93.