The Constitutionalization of Private Regulation: Understanding the Role of Private Law

This NWO Veni project aims to deepen our understanding of the role private law plays in submitting regulatory activities of private actors to fundamental principles of laws. Such regulatory activities may have significant impact on society. While public law scholars have shown a great deal of interest in how to align private regulation with fundamental legal principles, including procedural fairness, good governance and constitutional rights, academics have yet to discern the role private law (contract, tort, law of associations) has in such ‘constitutionalization’ of private regulation.

The project approaches this theme by analyzing case law on the civil liability of private regulators. By examining conditions under which these regulators are liable, including violations of fundamental principles of law, the project reveals how and when private law facilitates the constitutionalization of private regulation and to what extent that role can be improved. To that end, the project engages in a comparative analysis of case law in the legal systems of England, Germany, the Netherlands and European Union, which demonstrate different modalities in addressing liability for regulatory activities. Qualitative content analysis of this case law will enable the identification and explanation of patterns in the application of conditions governing the liability of private regulators.

The project is innovative for it transcends traditional boundaries internal to the law, links literatures in law, political science and sociology on private regulation, and integrates social science research methods in case law analysis. Accordingly, it offers practical insights on how to regulate and constitutionalize private regulation, informs current debates regarding the liability of regulators and quality of legal research, and offers a critical baseline for future research concerning behavioural effects of liability on the performance of (private) regulators.

This project answers the question of how and when private law submits rules set by private, non-state actors to fundamental principles of laws. This ‘constitutionalization’ of private regulation is assessed by examining, in comparative fashion, case law on liability of private regulators in England, Germany, the Netherlands and European Union.