The Incurable Constitutional Itch: Transnational Private Regulatory Governance and the Woes of Legitimacy

Transnational private regulatory governance in a host of areas from food and product safety, aviation security, accounting, corporate and labor standards, as well as forestry and marine stewardship has long attracted the attention of those with concern for the public interest. The chapter recognizes these concerns, which are usually expressed in terms of a wide-ranging legitimacy deficit of private governance regimes. At the same time, I contend that there is no easy fix in response to regulatory developments that have their origin in nation-state transformation and in a functionally differentiated proliferation of global societal activity. I provide a brief account of what is here called the ‘Global Governance condition’ and of the particular challenges emanating therefrom for the development of legal agency. I then engage with law’s potential to resituate itself in a global context against the background of competing accounts of functionalism and normativism. Thereafter follows a discussion of the particular role played by private law in navigating public and private interests and of the (futile?) aspirations for a political critique. The next section contextualizes the public-private law dynamics against the background of a high degree of functional and sectorial specialization which characterizes transnationalization processes and significantly challenges any effort of designing overarching and inclusive models or concepts of post-national justice. The concluding section interrogates the prospects of an interdisciplinary and normative engagement with the pressing political regulatory challenges that arise from law’s transnationalization