Amongst rulemakers

Abstract

Public regulators are increasingly accepting helping hands for carrying out their regulatory activities – such as standard setting, information gathering, and enforcement. These helping hands often belong to private actors that also regulate businesses for their own compliance programs, like industry associations and scheme managers. One can speak of co-regulation if the whole of regulatory activities are carried out by both public and private actors. Intermediaries – such as industry associations and scheme managers - may play a pivotal role in coregulation, because they may inform public regulators about compliance to standards. From the public regulator’s perspective, it is tempting to see intermediaries as cogwheels in the regulatory machine. However, a danger of this view is the implication of some public ownership of this regulatory machine. Although it is often stressed that governments are end responsible for regulation, private actors may perceive ownership and responsibility differently. An alternative approach to co-regulation focuses on interaction among multiple spheres of rules. ‘Public regulation’ is one of these spheres, alongside ‘industry self-regulation’ and ‘standardization’. Each sphere has its own institutional logic, i.e. history, governance, and actors. Each sphere has its own ‘ruletakers’ and ‘rulemakers’. Intermediaries, then, have their own responsibilities in the ‘standardization’ sphere, with for instance standardization organizations managing standards, and certifiers using these standards for their services. In this contribution the two approaches to co-regulation are further conceptualized on a national level. Two casestudies of co-regulation will be used as illustrations. Using the second approach to coregulation some intermediaries are seen as rulemakers, among other rulemakers such as public regulators. It is likely that the multiple institutional logics will collide and that rules will conflict. For regulatory scholars this implies accepting compliance as a multiple principal problem, and accepting the importance of intermediaries for the quality of decision making processes.