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.

tagonists of an ”institutional theory of law”2 may feel reassured by this concept in their critical approach to the supposed symbiosis between the state and the law.
    After so much theorizing, you can rightly expect some concrete examples illustrating the subject matter we are talking about. Ardent followers of the concept of ”regulated self-regulation” will make an effort to find traces of it in every branch of public and administrative law. A more realistic appraisal shows that it will flourish better in some areas than in others. At first sight, media law, telecommunication law and environmental law seem to be the most likely and suitable candidates. Most recently, internet and cyberspace have become the favourite if not exclusive branch of reference. Apparently, the virtual world of cyberspace is a good breeding ground for new concepts of regulation and control not to speak of law as such.3 But what, you may ask by now, has that all to do with criminal law? Certainly, criminal lawyers are known for their habit of combining a reductionist perspective as to the incidence of criminal law pure with an expansionist view as to the subject matters they take interest in. But, seriously speaking: a close-up will reveal some resemblance of regulated self-regulation with recent developments in the field of criminal justice. Moreover, criminal law and criminal justice are classical testing-fields for the elementary guarantees of justice. Consequently, criminal lawyers have developed a particular sensitivity when it comes to the role of human rights guarantees and other forms of legal protection which may be at stake if the control pattern is being reorganised. And finally, somewhat related to the two previous aspects, due to the close affinity between the criminal law and the state,4 criminal lawyers should have a voice in a process which seemingly puts into question traditional concepts of the state.

II. Elements of regulated self-regulation in crime control
Criminal law seems to be the classical domain for a ”command and control strategy”. The monopoly of force is vested in the modern state, the implementation of the criminal law being one of its classical manifestations. Correlatively, from the individual’s point of view, such a state-based system of crime control stands for self-restraint and legal safeguards against abuse of power, the essence of the liberal concept of criminal law and criminal justice.5

2 Cf. MacCormick/Weinberger, Grundlagen des Institutionalistischen Rechtspositivismus, Berlin 1985.3 Cf. Lessig, Code and other Laws of Cyberspace, New York 1999.4 Cf. Jung, L’Etat et moi: Some Reflections on the Relationship between the Criminal Law and the State, European Journal of Crime, Criminal Law and Criminal Justice 1998, p. 208.5 Cf. for the different ideological premises of criminal policy projects Victor, Politics and the Penal System — A Drama in Progress, in: Snare (ed.), Beware of Punishment, Oslo 1995, p. 68, 74 etc.

Underneath the surface of what seems to be a clear state orientation of criminal law, some developments have taken place which tend to destabilize the traditional paradigm. These developments stem from different sources and converge in a growing scepticism as to the regulatory potential of the traditional criminal justice system. There are those who claim that the state has disinherited the victim and that the conflict should be given back to the victim. Nils Christie, in particular, has conceived of ”Conflicts as Property”.6 Others question the effectiveness of crime control from a neo-liberal, or managerial point of view. Yet others plead for a more flexible system of sanctions, flexibility lending itself to a more consensus-oriented criminal policy.
    The development is somewhat linked to the privatisation debate which has spilled over from the welfare complex of state activity to the repressive complex. The ”privatisation” debate in criminal justice has raised concern in particular insofar it has been related to commercialisation — take only private police forces and private elements in the field of corrections. This gives already some indication as to the wide scope of the debate in criminal law and criminal justice. Private police, the ”contractualisation” of the level of criminal intervention in environmental law, mediation and, to a certain extent, bargains in procedure as well as the rise of the private element at the custodial level show that private participation is increasingly gaining in importance throughout the whole of the criminal justice system.7 However, it might be premature to categorize such developments under the heading of ”regulated self-regulation”. Neither is privatisation necessarily the same as self-regulation, nor is the introduction of some elements of negociation into an otherwise state-oriented process of control an evident case of self-regulation. In order to assess these developments and to locate them within the spectrum of selfregulatory moves we must therefore take a more principled approach to self-regulation and ask ourselves what it is actually about.

III. Definitional issues and theoretical implications
To begin with, I do not consider ”regulated self-regulation” as a legal term in the strict sense of the word. Rather, it describes phenomena, developments, schemes and models in areas which were previously solely or mainly governed by state activity. This said, we should take note of the fact that the tradition of self-administration is not altogether new. Germany for example, has a tradition of long standing: the involvement of the ”bürgerliche Verein” at the local level, selfgoverning bodies (”Kammer”) for particular professions such as attorneys, medical doctors, architects etc. as well as the ”Bürgerinitia-

6 Christie, Conflicts as Property, The British Journal of Criminology 1977, p. 1.7 Cf., as to the general scope of privatisation in criminal law, Jung, Privatisierung des Strafrechts, in: Jung/Müller-Dietz/Neumann (Hrsg.), Perspektiven der Strafrechtsentwicklung, Baden-Baden 1996, p. 69.

tive”, an element of democratic participation at the ”grassroot level”. It has, in Germany and even more so in the U.K., always been customary, in fulfilling public functions, to rely on private bodies and associations or quasi-governmental agencies. Also, legislative and governmental action have, for reasons of acceptance, always required the feedback of a particular or the general audience.
    If there is anything new, it is the constant rise of participatory elements. Subsystems with a special modus operandi are being taken seriously. Networking is en vogue. This leads, to a ”neue Unübersichtlichkeit” (Habermas), a fragmentation of the social world into different ”Lebenswelten” and subsystems. Subsequently, the state is, in some areas, being reduced to the role of an observer who intervenes only as a moderator or supervisor into what is thought of as an autonomous process. The addressees of legislation and governmental action have a voice in the processes of regulation. It goes without saying that these developments are particularly far-reaching in legal systems which did already rely on ”coordinate models of administration”.8 It is a matter of debate whether we have to do with a ”bottom up” or a ”top down” development. Also, the reasons for this development are far from being clear. The same holds true also for the structural consequences. In particular, we are yet uncertain as to the legal pattern required to implement regulated self-regulation. Take for example the area of information, communication and the media. Though there is a far reaching consensus that regulation should be largely entrusted to the market, it is still an open question as to how, when and to what avail the state should intervene.9 Of course, the answer may vary for the different legal systems. At the same time, national answers may not suffice.
    It may almost seem that we return to an era of legislative restraint in the sense of Montesquieu’s notion that the legislator should not ”choquer la nature des choses”.10 Yet, perhaps we are only heading for a different type of legislation, a certain dynamisation, the adoption of trial and error concepts, a rise of experimentation clauses, a regulatory concept which in all substantial issues holds recourse to the potential of society, communities and subsystems. This all goes to show that ”regulated self-regulation” is a multifacetted issue which touches on first principle questions of law and social structure. It generates the rise of new control arrangements as well as the rise of new power centers. This may raise questions of equality, justice and social cohesiveness.

8 Following the classification developed by Damaska, in: The Faces of Justice and State Authority, New Haven–London 1986.9 Cf. Hoffmann-Riem/Schulz/Held, Konvergenz und Regulierung, Baden-Baden 2000.10 Montesquieu, De l’esprit des lois, XXIX 16.

The general debate about regulated self-regulation resembles very much the phenomenon it describes: It is characterized by variety and diversity, vivid and not yet domesticated by the tradition of categorial distinctions. This state of affairs encourages me to comment on it from a criminal lawyer’s point of view. My legitimation to take criminal justice phenomena on bord when talking about regulated selfregulation flows from the observation that the present-day criminal justice debate echoes the terms which reappear time and again in the self-regulation debate: participation, flexibility, differentiation, proceduralisation — to name only the most important. Thus it could well be that criminal law and criminal justice constitute the ultimate test of how far this concept will stretch. Of course, telecommunication and criminal justice are totally different fields of reference. They do have only one thing in common: the state as a regulatory agency.
    From a classical perspective, regulated self-regulation appears to be a dangerous manoeuvre to deconstruct the state and, in consequence, criminal law. Though the present-day situation does not justify this anxiety, it has given rise to criticism in particular from many academic criminal lawyers who are opposed to any flexibilisation and instrumentalisation of criminal law.
    Before taking sides, we should try to trace the reasons behind these apparent changes. Maybe they hint at structural changes which the criminal law cannot avoid taking into account without, however, giving up the basic principles to which it is committed.

IV. The particulars of self-regulation in criminal justice
Self-regulation in criminal justice matters is a development which is not altogether new. I remember that at the first meeting of our local medico-juridical association one of the lawyers pacified the medical doctors' concern about the increase in malpractice law suits with the argument that they should get more involved ”in the business of lawmaking”. Indeed, the idea of the lex artis, the ”Verkehrsauffassung”, and such allude to cooperative forms of standard-setting.11 Of course, such complementarity in more complex fields of reference puts the criminal law on the spot since criminal justice is governed by the principle of legality and hence based upon the idea of norms which are nicely defined by the legislator. Yet, this concept has never been implemented rigidly; even criminal justice cannot do without a certain openness, without definitional margins. I will not, at this stage, dwell any longer on the fact that the parallelogram of power constituted by state, society, group and individual has undergone certain changes which bear upon any form of state ac-

11 Cf. Heine, Normierung und Selbstnormierung im Strafrecht, Zeitschrift für das gesamte Lebensmittelrecht 1997, p. 269; also Heine, Die Strafrechtswissenschaft vor den Aufgaben der Zukunft, in: Eser/Hassemer/Burkhardt (Hrsg.), Die deutsche Strafrechtswissenschaft vor der Jahrtausendwende, München 2000, p. 397, 400.

tivity including criminal justice. Of course, the wide-spread criticism of the welfare state has not simply spilled over to the repressive sector. Rather to the contrary, in the U.S. at least, many critics of the welfare state demand more investments, i.e. more state, in the security sector. Still, ideologically different strands of thought have converged in the overall assessment that state-based bureaucracies are no longer regarded as the omnipotent institution. Minimalism, participatory models of criminal justice, abolitionism and community involvement are some of the tendencies which have originated on the ”left side” or on communitarian ground. The neo-liberal side has fuelled the debate on private policing.
    Despite such ideological divides there seems to be some agreement which is embodied in formulae such as responsibilisation,12 participation and effectiveness. However, these terms lend themselves to different interpretations: Effectiveness can simply allude to the idea of a less costly delivery of services, but it can also allude to the idea of more socio-constructive solutions. It seems to be quite clear that consensus, acceptance and cooperative action have, though, for different reasons, found their way into the criminal justice system. They stand for more participation and a smoother functioning of the system which can no longer cope with the complexity that at least some types of criminal trials have reached. Of course, it is a matter of debate whether one can, in the context of criminal law, speak of a strategy of consensus since we are operating in the shadow of power.
    One of the keys to the concept of regulated self-regulation seems to be that of information and the control of information. Not surprisingly, the area of criminal justice does not form an exception. The outcome of an environmental law suit for example is strongly dependent on the access to information. Establishing the fault requirement in a malpractice case is virtually impossible without the necessary information about standards and practices in this particular field. Thus in many cases, rendering justice will be difficult if not impossible if there is no cooperation. In some areas, cooperation can only be achieved at a certain price, the raison d’être of plea bargaining practices. In some areas, the lack of information may also have to do with the fact that we are confronted with new developments still difficult to assess in their potential. When it comes to the so-called mega-risks, the options often range from progress to disaster. It may suffice to refer to recent developments in bio-medicine.
    Here, the legislator is in a particular predicament since these new developments, like in the case of bio-medicine, are liable to modify existing notions of societal values and normative aspirations. Should the legislator adopt a laissez-faire strategy or should the legislator re-

12 Cf. Garland, The Limits of the Sovereign State, The British Journal of Criminology 1996, p. 445, 452.

spond to the potentially inherent risks by way of a restrictive criminal statute?13 This would in some instances be on over-reaction, the uncertainties surrounding the matter would rather call for a more flexible strategy of control. The alternative pattern of control will quite often be ”proceduralisation”.14 This is where (ethical) committees,15 peer review,16 parliamentary reports, guidelines of a somewhat unclear status, public hearings and scientific debate come into the picture.
    In most cases, the modern legislator will, however, not opt for legislative restraint as far as criminal law is concerned, rather to the contrary. Whereas Montesquieu would advice the legislator not to ”choquer la nature des choses”, recourse to the Gesetz has become a routine practice in modern times. This is, of course, well in line with Rechtsstaat and democratic principles and hence not to be criticized as such. In particular, the ”Wesentlichkeitstheorie” requires that the essential decisions be taken by the legislator. Still, the point is that we do have too much criminal law. Criminal law has, instead of remaining the ultima ratio, rather turned into the sola ratio, the one and only trouble-shooter.17 It may well be that this abundant use of criminal law calls for counter reactions, i.e. the development of flexible strategies which allow us to circumvent a fully-fledged criminal response. Again we arrive at procedural solutions such as discharges under conditions, mediation and plea bargaining solutions which all have in common that the addressee of the criminal response has a voice in the determination of the outcome. ”Mediation” rings a still different bell.18 It has to do with the fact that mediation comes perhaps closest to the participatory ideals which have been propagated by Christie, McClintock19 and others. To some, the idea stands for a movement which aims for autonomous group or community based solutions which overcome criminal law. To others, it stands for a response which, though still rooted in the criminal justice system, is meant to be more personal and socio-constructive than traditional criminal sanctions. This repersonalisation of criminal law which has also been advocated by the victim movement will entail an

13 I have discussed these options with reference to bio-medicine in: Biomedizin und Strafrecht, Zeitschrift für die gesamte Strafrechtswissenschaft 100 (1988), p. 3.14 For further details e.g. Hassemer, Prozedurale Rechtfertigungen, in: Festschrift f. Mahrenholz, Baden-Baden 1994, p. 731.15 Cf. Jung, Entscheidungsprozesse bei medizin-ethischen Grenzfragen. Zur Rolle von Ethikkommissionen, in: Jung/Müller-Dietz/Neumannn (Hrsg.), Recht und Moral, Baden-Baden 1991, p. 401.16 As to the experience with peer review cf. e.g. Strömholm, Peer-Review – Experience at National and European Level. Scientometrics 4 (1999), p. 491.17 Hassemer, Menschenrechte im Strafprozeß, Kritische Vierteljahresschrift für Politik und Gesetzgebung 1988, p. 336.18 For a general account of mediation cf. Lindell, Alternativ tvistlösning, Uppsala 2000.19 McClintock, Some Aspects of Discretion in Criminal Justice, in: Adler/Asquith (eds.), Discretion and Welfare, London 1981, p. 185, 196.

increased margin of manoeuvre, I dare say of self-regulation, for those who have been personally involved in the conflict.

V. The pros and cons from the point of view of criminal law
Of course, the public interest does not seem to be a negotiable matter. And criminal justice is about justice and not about the acceptance of decisions by partisan groups or individuals. With a somewhat solemn touch, the Conclusions and Recommentations of the European Council's Criminological Conference on Privatisation of Crime Control have emphasised that ”The public authorities have an ultimate and inalienable responsibility for the maintenance of public peace and the administration of justice”.20 Otherwise, predictability and equality, the classical insigns of criminal law, would be jeopardised. Moreover, we cannot revive a hundred different ”theatres of suffering” as there used to be in the Middle Ages with a still weak public authority.
    This said, I confess that I am not totally opposed to introducing elements of self-regulation in criminal law and criminal justice. I appreciate their potential to reduce punitiveness, to strengthen participation and to contribute to a more adequate solution of the problem. I favour solutions which do the job with less punitiveness which may be a somewhat anachronistic position in view of present-day demands for stiffer sentences and for the construction of new prisons. Participatory elements represent a particular concept of law and law enforcement. They aim at overcoming the ”frontier of control” between those who administer the law and those who are being administered.21 The credibility and the quality of a decision depend inter alia on the chance of the participants to influence the decision process. Last but not least, we have to take into account the detrimental side-effects of criminal law. Therefore, in many or at least in some cases, it is preferable to look for more subtle remedies, for a more flexible response.
    However, regulated self-regulation in criminal law will at least for some time remain a concept of limited range, the emphasis lying on the regulation of this process. Let me therefore spell out my reservations, thus outing myself as a proponent of the ”radical” middle-way.
    To begin with, self-regulation raises the power question. Public criminal law stands for a fairly well organised system of restraints under which it is being operated: individual human rights and the Rechtsstaatprinciple have emerged as a counter-balance to control the activities of the state in a particularly sensitive domain, sensitive because it entails the most severe infringements of rights. If other agents, whoever they are, take over we have to make sure that the con-

20 Jung, Conclusions and Recommendations of the Conference, in: European Committee on Crime Problems, Privatisation of Crime Control, Strasbourg 1990, p. 127–129.21 Bankowski/Mungham, Laypeople and Lawpeople and the Administration of the Lower Courts, International Journal of the Sociology of Law 1981, p. 85, 99.

trol pattern which has been specifically constructed around the state does not become inoperative. Control of power is therefore a pressing question, no matter by whom this power is exercised. This is why, for example, mediation cannot, for the sake of its proper philosophy of action, sign off the legal guarantees enshrined in the European Convention of Human Rights.22 It seems to me that disassociating the Human Righs concept from the state or a federation of states is one thing, but finding a proper new location for it is another thing and, as far as I am concerned, a problem yet to be solved for regulated selfregulation. In the U.S. constitutional tradition it is apparently a still unresolved question whether constitutional review should be extended to the structures of private regulation.23 Protagonists of the concept of regulated self-regulation will insist on the advantage of a situational approach which allows to take into account the individual merits of the case. However, there is an inherent danger to this approach. The development of criminal law and criminal justice have all along its history been mainly driven by the equality motive.24 Though we are well aware of the productive tension between the concept of individualisation and the principle of equality it is quite clear that arbitrary selectivity is poisonous for the administration of the criminal justice system. Therefore self-regulation in criminal law should not appear as a privilege to some happy few who can afford it or who happen to profit from locally existing programs. The overall aim in criminal justice is the idea of a generally available service which, even if it allows for discretion, follows, at least in essence, a predictable pattern of categories. Also, there is a limit to flexibilisation in criminal law. Only recently, Kunz has criticized the concept of flexible sanctioning, based on plea bargaining and prosecutorial discretion.25 Though I do not follow him all the way, the elasticity gained by proceduralisation has its price. On the one hand, it seems to be the easy solution since it is quite often difficult to reach consensus on necessary reforms of the substantive criminal law. In addition to that such proceduralisation may draw some legitimacy from the concept of consent. Everybody seems to be happy. On the other hand, such flexibilisation could well inhibit real decriminalisation de jure.

VI. The lesson
The concept of regulated self-regulation radiates a certain modernity. Command and control is passé. We are heading for new frontiers

22 Cf. Chapters III and IV of the Council of Europe’s Recommendation N° R (99) on Mediation in Penal Matters, Council of Europe Publishing, Strasbourg 2000.23 Cf. Lessig, op. cit., p. 217 et s., 221.24 As to the role of the equality principle in criminal law cf. van Zyl Smit, Equality in Criminal Law, in: Blanpain (ed.), Law in Motion, The Hague 1997, p. 466.25 Kunz, Flexible Sanktionen?, Kriminologisches Bulletin de Criminologie 1999, Nr. 2, p. 3.

which promise more innovation, more autonomy, better quality. The state is being reduced to the role of an observer who sets the regulatory frame and intervenes only in form of a monitoring system and in last instance, in a guarantor's function (”Gewährleistungsstaat”). It is quite clear that such a concept is not suitable for the criminal justice system. We have further learned from our visit to the criminal justice system that we should not fall prey all too naively to the intoxication of regulated self-regulation. It is easy to criticize the state for bad delivery of its services, but is is not that easy to replace the state’s potential to maintain and promote social cohesiveness. What I have learned myself is that one of the major concerns in self-regulation is the information issue. Indeed, this holds true for criminal justice as well. Self-regulatory approaches are being promoted by imbalances in the access to information. In many areas criminal justice is dependent on the cooperative behaviour of those who are being charged with a criminal offence.
    Evidently, the concept of self-regulation has its drawbacks. First of all, it does not work in each and every domain of law. In criminal law for example it is of use only in a very moderate dosage. Secondly, it has a problem with democratic legitimation. Can we really entrust it to the participants of the conflict and to them only to negotiate the conditions of a settlement? Apparently state, market, society and individuals are competing in a process of re-adjusting their status. Criminal justice has thus far more or less resisted to market influences. Moreover, it has been the litmustest of the equality principle. The experiences of criminal justice underscore that it would be dangerous to opt for fragmentation, since this may entail a re-feudalisation of social control.
    Thirdly, the experience of criminal justice shows that a more or less equal social competence, transparency and accountability are the best foundations of any system of social control.
    Certainly, the idealistic myth of the state is passé. The state of today appears as a fragmented social construct with different interacting power centers. Yet, we should not write off lighthandedly its democratically legitimised responsibilities, unless we conceive of justice as a concept for the rich and the powerful only.