Regulation & Governance (2008) 2, 137–164
Constructing and contesting legitimacy and accountability in polycentric regulatory regimes Julia Black1
Department of Law, London School of Economics and Political Science, London, UK
The legitimacy and accountability of polycentric regulatory regimes, particularly at the transnational level, has been severely criticized, and the search is on to find ways in which they can be enhanced. This paper argues that before developing even more proposals, we need to pay far greater attention to the dynamics of accountability and legitimacy relationships, and to how those in regulatory regimes respond to them. The article thus first seeks to develop a closer analysis of three key elements of legitimacy and accountability relationships which it suggests are central to these dynamics: The role of the institutional environment in the construction of legitimacy, the dialectical nature of accountability relationships, and the communicative structures through which accountability occurs and legitimacy is constructed. Second, the article explores how organizations in regulatory regimes respond, or are likely to respond, to multiple legitimacy and accountability claims, and how they themselves seek to build legitimacy in complex and dynamic situations. The arguments developed here are not normative: There is no ‘‘grand solution’’ proposed to the normative questions of when regulators should be considered legitimate or how to make them so. Rather, the article seeks to analyse the dynamics of legitimacy and accountability relationships as they occur in an attempt to build a more realistic foundation on which grander ‘‘how to’’ proposals can be built. For until we understand these dynamics, the grander, normative arguments risk being simply pipe dreams – diverting, but in the end making little difference. Keywords: accountability, legitimacy, polycentric regulation, regulation, transnational regulators.
Introduction How to render polycentric regulatory regimes legitimate and accountable is one of the central questions preoccupying many social scientists, including lawyers. Such regulatory regimes are those in which the state is not the sole locus of authority, or indeed in which it plays no role at all. They are marked by fragmentation, complexity and interdependence between actors, in which state and non-state actors are both regulators and regulated, and their boundaries are marked by the issues or problems which they are concerned with, rather than necessarily by a common solution. Such regimes pose a number of challenges which writers across a range of disciplines – law, political science, Correspondence: Julia Black, Department of Law, London School of Economics and Political Science, Houghton Street, London WC2A 2AE, UK. Email: email@example.com Accepted for publication 5 February 2008. ª 2008 The Author Journal compilation ª 2008 Blackwell Publishing Asia Pty Ltd
Constructing and contesting legitimacy
international relations, development studies – are all engaged in delineating and addressing. Indeed the issues to which the ‘‘governance turn’’ is giving rise is drawing commentators like moths round a light. These challenges are principally functional, democratic, normative and systemic, as outlined below. Of these, the first three are often articulated as concerns about legitimacy and accountability. Solutions proposed include developing systems of extended accountability (Scott 2000), network accountability (Harlow & Rawlings 2007), enhanced democratic governance (Clapp 1998; Froomkin 2003; Cohen & Sabel 2005; Dingwerth 2005), or adopting functional equivalents to the structures of accountability which are to be found in constitutional settlements, at least of liberal democratic states, such as judicial review (Stewart 2005) or an enhanced role for parliaments or for executive oversight bodies such as auditors and...
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