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59 Mod. L. Rev. 24 (1996)
Constitutionalising Self-Regulation

handle is hein.journals/modlr59 and id is 38 raw text is: Constitutionalising Self-Regulation Julia Black* Introduction A member of a professional body is disciplined by that body and her licence to practice taken away. A firm is refused membership of an exchange or trading body on a ground not contained in the body's rules. A person complains that the rules of a sporting association are discriminatory. Each seeks to challenge the associations' decisions in the court. In the absence of legislation, how should the court respond? Should it define and uphold the person's rights against the actions of the association? Should it preserve and respect the autonomy of the association to make and interpret its own rules, or to determine its own membership? Should the association be subjected to principles of public responsibility and be required to act fairly or rationally, or to make its decisions in the interests of its members, the association or the public? When faced with the question of whether and how to review the decisions of self-regulatory associations (SRAs), the court's current response is based on where it draws the boundary between public and private law. Where and how it currently draws that line is notoriously uncertain, couched largely in procedural terms and dogged by tensions between the role of the body and the legal nature of its relations with its members. Such pre-occupations obscure the main issue: what should be the response of law when faced with what are in effect mini-systems of collective government? It is a question of how to constitutionalise self-regulation. The aim of this article is to begin to answer this question; to understand the constitutional issues raised by SRAs and the ways in which these are and could be addressed. The aim is not to reach the ultimate stage, a new theory for judicial review of self-regulatory associations, but to explore how we may begin that process and to offer a way forward which draws on some of the insights of reflexive law. It is suggested that before we can fully answer the question of how, and indeed why, to regulate SRAs, three steps have to be taken.' First, there has to be a greater understanding of the nature of the 'public' sphere. This involves, inter alia, a recognition of the changing nature and structure of the state, the ways in which bodies which are not part of the traditional institutions of the state participate in the political process, and an awareness of the wider role these bodies play in society. Second, there is a need to develop an understanding of the role of law in the context of a functionally differentiated society, which is to ensure the integration of the political, economic and social spheres. Third, the courts have to build on this understanding of law's role to identify which aspects of an SRA require judicial supervision and to develop a response which is flexible and multi- faceted. * Lecturer, London School of Economics. This article has benefited greatly from the comments of Tim Cross, Denis Galligan, Carol Harlow, Chris McCrudden and Gunther Teubner, all of whom I thank. Views, errors and omissions remain my own. I The form of regulation focused on throughout is judicial review, and the term regulation is used to refer to the courts' supervisory role. C The Modern Law Review Limited 1996 (MLR 59:1, January). Published by Blackwell Publishers, 24 108 Cowley Road, Oxford OX4 IF and 238 Main Street, Cambridge, MA 02142, USA.

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