Che materia stai cercando?




the legitimacy of those regimes and the particular regulator in question. But although


legitimacy is central to motivating behaviour in all regulatory regimes, it is particularly

critical for non-state regulators who do not necessarily have the legitimacy of the state

or supranational or international settlement to fall back on. For them, satisfying

multiple legitimacy communities (or rather a certain set of legitimacy communities) is

particularly necessary if their authority is to be recognized and accepted, and thus for

their continued survival as a regulatory body. State-based regulators can borrow on

the authority of the state or the international legal regime to bolster their legitimacy

claims, but non-state regulators need to build legitimacy from the start.

Legitimacy is therefore essential to the regulator’s ability to function effectively,

in other words to be able to regulate others. But there is an added dimension to the

need for legitimacy. It is that more than one NSR can be trying to regulate others who

are operating in the same regulatory domain. Often, as Meidinger notes, a code

sponsored by a non-governmental organisation is countered by one sponsored by

industry. Thus in forest stewardship, for example, there are two main NSRs – the


FSC, the industry-sponsored Program for Endorsement of Forest Certification.


the competition may not fall so neatly into industry versus non-industry. In the realm

of fair trade, for example, both the Fair Trade Labelling Organisation and the World

Fair Trade Organisation have sets of standards and certification processes, which

although they serve similar markets and seek to make the same kinds of appeals to

consumers, are based on different approaches to Fair Trade monitoring and

certification. Regulators, particularly NSRs, thus may find they have to compete with

each other for ‘regulatory share’. In this competition, legitimacy can play a key role.


The idea that non-state regulators have to compete for regulatory share might sound

an odd notion to administrative lawyers, who by their nature focus largely on state

based regulators that form part of the administrative structures of government. These

state regulators may have to ‘compete’ with other regulators in other jurisdictions in

order to attract business, and they may overlap or otherwise have to coordinate with

other regulators in the same jurisdiction, for example the concurrent competition

powers of sectoral regulators and the OFT or overlapping responsibilities for water

quality between the Environment Agency and Ofwat, but they do not have to

compete with each other to try to get firms or others to follow their rules rather than

those of another regulator. They do have to ensure that firms abide by the regulatory

rules and not their own organisational or industry norms, but as organisations, their

regulatory remits are secure, because they are legally defined and sanctioned. Some

See in particular Tyler, n 39 above (1990 and 1997); Braithwaite and M. Reinhart, n 39 above;


Braithwaite, Braithwaite, Gibson, and Makkai, n 39 above. See also A. Chayes and D. Shelton,

‘Commentary: MultiLateral Arms Control’ in D. Shelton (ed), Commitment and Compliance: The Role of Non-

Binding Norms in the International Legal System (Oxford: Oxford University Press, 2000).

Meidinger, n 1 above; see also Abbot and Snider, n 1 above.

53 14

Julia Black Legitimacy and the Competition for Regulatory Share

non-state regulators, such as the GMC, are in a similar position in that they have been

granted a legal monopoly to regulate a certain group of people (doctors).

Moving beyond the boundaries of state-based or state-sanctioned regulators,

however, there is a plethora of non-state organisations which attempt to regulate

firms or others in accordance with a set of norms, and which have no state

endorsement or backing at either national or international level. There are multiple

examples at the transnational level, such as the Fair Trade Labelling Organisation, the

Forest Stewardship Council and the Marine Stewardship Council. At the national

level, within the UK there are both industry and non-industry based codes. In the area

of food, for example, there is the Red Tractor logo of the Assured Food Standards

organisation, as well as the non-industry based RSPCA’s ‘Freedom Food’ certification

and labelling scheme. It is open to industry to seek OFT approval of their Codes, but

this does not give them legal force and is in any case voluntary.

The codes and practices of NSRs are usually discussed either as manifestations of

the phenomenon of governance or decentring, or in terms of the challenges of

decentred regulation outlined above: functionally -- how effective are they in changing

industry behaviour; normatively -- do they only further the self-interest of their

member firms or do they seek to pursue a broader social goal; constitutionally -- what

challenges do they pose to constitutional norms such as accountability; or systemically

-- how do their ‘soft’ law norms interact with ‘hard’ law and what does this interaction

and fragmentation mean for our understanding of ‘law’ and law’s understanding of


What I am suggesting here is that, in addition to those discussions, we see the

regulatory norms themselves as part of a dynamic process by their sponsoring

organisations to expand the regulator’s ‘regulatory reach’. Where the organisation is

the sole body producing norms in a particular domain or sector, then their challenge is

to get industry or other organisations to recognize and comply with those norms.

Where they are not the sole body producing norms which purport to govern a

particular sector or activity (ie food production, animal welfare, accounting norms),

then the NSR may be implicitly or explicitly in competition with other organisations,

which may in turn be either state-based or state-sanctioned regulators or non-state

regulators. In these circumstances, the challenge for the non-state regulators (NSRs) is

not just to gain compliance as such, but to compete against other rival regulators in a

battle for ‘regulatory share’.


This idea that non-state regulators compete for regulatory share is unfamiliar to

administrative law discourse (as it is to much regulatory discourse as well), and as such

requires some unpacking. The argument runs like this: I have argued above that

organisations need legitimacy to survive, but that there are multiple legitimacy

communities, each with competing legitimacy claims. NSRs need to gain legitimacy

from those they seek to regulate. Frequently, the charge is that they do so by writing

rules which favour industry. However, non-state regulators, particularly those who are

attempting to regulate the conditions of production (Fair Trade, Rugmark, FSC, etc)

also need to have the support of consumers if the NSR is to be effective in

State-based regulators can also compete for regulatory share by attempting to ‘export’ their regulatory


norms; we will return to this issue below. 15


stimulating demand-side pressures for compliance. In other words, they need to be

legitimate to consumers, as well. It is therefore not enough for them simply to write

rules that render them legitimate to firms (eg by being in the firms’ self-interests), they

have to make themselves legitimate to a wider range of legitimacy communities, who

may be making competing legitimacy claims. -




So how can regulators create and manage their legitimacy? Again the idea that

regulators, both state and non-state, ‘create and manage’ their legitimacy may be a

strange notion to constitutional or administrative lawyers, who are used to thinking in

terms of evaluating the legitimacy of regulators in a context in which the regulator is

implicitly assume to be a passive agent, an ‘object’ which can be evaluated. But

regulators, like states, or indeed any organisation, can play a role in constructing,


maintaining and repairing their own legitimacy in three main ways: by conforming,

manipulating, or informing. They can conform to the ‘legitimacy claims’ of


legitimacy communities, for example by pandering to their self-interest, or by trying to

conform to normative claims by making themselves more representative, or more

expert, or more transparent, or by aligning themselves with someone who has those

qualities, and so building legitimacy networks.

Many state-based regulatory agencies, for example, have developed systems of

public consultation, decision-making, and reporting which go well beyond those

required by law to enhance their normative legitimacy. Non-state regulators also can


seek to manage their legitimacy, both out of self-interest and because they perceive it

to be the ‘right thing to do’ -- in March and Olsen’s terms, out of a logic of

consequences and a logic of appropriateness. The International Accounting


Standards Committee has changed its constitutional structures and membership to

enhance its legitimacy. Cashore’s analysis of the FSC’s legitimacy illustrates how the

FSC seeks to manage its pragmatic legitimacy by engaging in ‘brand-destroying’

activities against those who do not conform, thus attempting to make conformance

with its norms be in the self-interest of firms in the supply chain. However,


legitimacy-enhancing strategies can be multi-faceted, and Meidinger’s analysis of FSC

emphasises how it seeks to manage its normative legitimacy by enhancing the

democratic nature of its membership and processes.


Regulators can also seek to develop moral and cognitive legitimacy through

building ‘legitimacy networks’, in other words linking themselves to other

See e.g. S.M. Lipset, ‘Some Social Requisites of Democracy’ (1958) 53 American Political Science Review 69;


R. Merelman, (1966) 60 American Political Science Review 548; Habermas, n 35 above.

See Suchman, n 36 above; P. DiMaggio and W. Powell, ‘Introduction’ in W. Powell and P. DiMaggio


(eds), The New Institutionalism in Organisational Analysis (Chicago: University of Chicago Press, 1991).

See M. Thatcher, ‘Regulation after Delegation: Independent Regulatory Agencies in Europe’ (2002)


9(6) Journal of European Public Policy 954.

March, J. and Olsen P., ‘The New Institutionalism: Organisational Factors in Political Life’ (1984) 78


American Political Science Review 734.

Suchman, n 36 above.

59 Meidinger, n 1 above.

60 16

Julia Black Legitimacy and the Competition for Regulatory Share

organisations which are perceived to be legitimate by those whose legitimacy claims

they want to meet. For example, a number of the social and environmental

accreditation bodies have agreed to ensure that they abide by the Code of Practice

developed by ISEAL (the International Social and Economic Accreditation League)

on the development, publication, and review of standards by member organisations,

largely to enhance their credibility. Modelling can also be adopted as a strategy to


enhance legitimacy by an NSR. Froomkin, for example, argues that ICANN has

developed procedures modelled on the Internet Engineering Taskforce, which is

widely accepted as legitimate by the internet community, in an attempt to gain

legitimacy for itself. 62

Alternatively, regulators can adopt less honourable strategies than actually

conforming to normative claims and can attempt to gain legitimacy through

manipulation, pretending to conform to the perceptions of the legitimacy

communities (eg ‘green-washing’). Or they can attempt to change or manipulate the

reasons why legitimacy is being given, such as attempting to refute democratic claims

by appealing to functional claims, in other words by advancing the argument that it is

more important for them to be dominated by experts than it is for them to be

democratic, as enhancing their democratic nature would reduce their effectiveness.

This argument is one which has traditionally been used by technical NSRs, such as the

BCBS or IASB, just as it has been used in the area of scientific risk assessments and

risk management by state-based regulators.

Regulators can also increase their legitimacy by providing information on aspects

of their existing activities which they think will provide a basis for acceptance from

different legitimacy communities. This strategy can clearly be used alone or in

conjunction with the other two. The form that any of the strategies will take vary with

the type of legitimacy that is at issue: pragmatic legitimacy (based on self-interested

claims of legitimacy communities), moral or normative legitimacy (based on

assessments that this is the ‘right thing to do’), or cognitive legitimacy (based on

assumptions that things could not be any other way), and on whether the organisation

is seeking to build, maintain, or repair legitimacy. 63

Regulators can also switch between legitimacy claims in attempts to enhance

their legitimacy within different communities. Wood’s work on the ISO provides a

good illustration. When the ISO started to lose ground in its functionally-based


legitimacy claims (ie that it is technical, expert), it switched to an alternative claim, but

one which was more cognitively-rooted: that it was the most appropriate body

because of its long-standing existence and role in a related area.

ISEAL Alliance, Code of Good Practice, at


index.cfm?fuseaction=Page.viewPage&pageId=502&parentID=500. See also E. Meidinger, ‘Multi-

Interest Self Governance through Global Product Certification Programs’ (Buffalo Legal Studies

Research Paper 2006-016), at

A. Froomkin, ‘ Toward a Critical Theory of Cyberspace’ (2003) 116(3)


Harvard Law Review 749, 844-845.

Suchman, n 36 above, 585-601. See Cashore for consideration in the context of the FSC: B. Cashore,


‘Legitimacy and the Privatization of Environmental Governance: How Non-State Market Driven

(NSDM) Governance Systems Gain Rule Making Authority’ (2002) 15(4) Governance 503-529.

S.Wood, ‘Will ISO 26000 Corner the Market for International Social Responsibility Standards?’


Competition for Transnational Regulatory Authority (paper presented at the SLSA conference, Montreal, May

2008) (copy on file with author). 17


Regulators may thus seek to build legitimacy for themselves in a number of ways:

by conforming to the pragmatic, normative, and cognitive legitimacy claims of all or a

selective group of legitimacy communities, or by attempting to create new legitimacy

beliefs and new legitimacy communities. 65

Does this mean that NSR always serve industry interests? Obviously, it is always

possible than an NSR will seek to enhance its legitimacy simply by providing rules that

serve the interests of those it seeks to regulate. However, as noted above, if the NSR

is setting standards and relying on market actors to play a role in enforcing those

standards, such as the labelling-based regulatory regimes in the area of fair trade, then

self-serving codes may not be enough. Rather, because they are reliant on others,

those regulators may need to enhance their legitimacy with respect to those others, as

well as with the industry they are seeking to regulate.

The important point to note with respect to polycentric regimes is that an

organisation’s legitimacy communities include other participants in the regulatory

regime on whom the organisation relies or that it would like to enrol in its regulatory

processes, as well as those outside it. So a regulator lacking legal powers in a particular

jurisdiction, for example Fair Trade, relies on pressure groups or NGOs to generate

awareness amongst consumers and in turn economic pressures on market actors to

conform to those norms. This reliance means that it has to generate legitimacy

amongst those bodies in order to motivate them to act in its support.


Regulators are thus competing for legitimacy in a range of different ways. But is it a

‘good thing’ that non-state regulators compete for legitimacy against each other, and

against state-based regulators?

Regulatory competition is a well-studied phenomenon, both in law and political

science. Regulation is seen as a product, comprised of rules, processes, and

enforcement regimes, which regulators / nation-states / regional or state-level

governments adjust in order to secure some kind of advantage. The advantage usually

sought is economic activity -- investment, corporate listings, scientific research, and so

on. The debate focuses on the ‘level’ the regulation has to ‘settle at’ in order to win

the biggest share of investment, corporate listings, company incorporations, and so

on. Will it end up at the ‘bottom’ – ie very light regulation in favour of particular

economic actors; or at the ‘top’ – very ‘strong’ regulation which also benefits third

parties, for example by dealing effectively with externalities. The nature of the

regulatory regime is assumed to be directly related to the amount of investment. The

assumption is that the amount of this investment / activity will be primarily

dependent on the nature of the prevailing regulatory regime. The ‘winner’ is the one

with the most investment; the competition determines all.

On strategies for building legitimacy, see Suchman, n 36 above, 591-593; B. Ashford and B. Gibbs,


‘The Double Edge of Organisational Legitimation’ (1990) 1 Organisation Science 177. 18

Julia Black Legitimacy and the Competition for Regulatory Share

Regulatory competition, however, it is suggested, can take one of two forms: it

can be ‘import-based’ or ‘export-based’. The usual focus in the literature on regulatory

competition is on what I call here an ‘import-based’ strategy. In an import-based

strategy, regulators can try to ‘import’ businesses to their regulatory jurisdiction;

regulation is an instrument of a political and economic strategy of economic growth.

The main drivers in the state-based context are usually governments, but they need

not be: stock exchanges, for example, compete for listings in a similar manner. In the

regulatory competition literature, it is generally noted that there are two essential

though more accurately these

preconditions for regulatory competition to occur,


should be seen as preconditions for ‘import-based’ strategies of regulatory

competition. First, freedom of movement: those conducting the activity must be free

to move between jurisdictions of the regulators, so there must be flexibility in their

operations, or mobility in labour or capital. Capital is generally more mobile than

highly specialized labour; services are more mobile than power plants or mines.

Regulatory competition is thus frequently associated with economic integration, and is

argued to be more prevalent in trade-related regulatory regimes than those which are

not trade-related. Secondly, information: those conducting the activity must have

information about the different regulatory regimes and how they operate in practice,

including their enforcement activities. To these conditions, it is suggested, should be

added a third, which is that the regulatory regime will be one of the main, if not

primary, determinants of where the person conducting the activity locates, as opposed

to other matters such as the tax regime, availability of skilled labour or transport


Import-based regulatory strategies only make sense, however, for regulators

which are jurisdictionally bounded. They have to get business to come to them, for

they cannot, for reasons of legal jurisdiction, take their regulation to business.

However, NSRs are not geographically bounded by legal jurisdictions. Given that

non-state regulators are not trapped by national jurisdictional boundaries, the

regulator is able to move to find the business. So in the dynamic of competition for

regulatory share between non-state transnational regulators, the preconditions for

regulatory competition change. There is still the need for businesses to be informed

about the regime, but these jurisdictionally unbounded regulators do not need

businesses to be mobile in the same way that geographically fixed and jurisdictionally

bounded state-based regulators do.

In the NSR, context, therefore, the main competition strategy is export-based; it

is a strategy to enhance its ‘regulatory share’ by persuading others to adopt its norms,

but without necessarily requiring them to change their business locations. Each aims

for dominance in the regulatory ‘market’, such that all participants are ‘buying’ its

‘product’, in other words, all the components of its regulatory regime. Thus the

transnational fair trade or sustainable development initiatives compete against one

another to become ‘the’ labeling regime to which consumers recognize and respond

and to which producers and suppliers adhere. In accounting, there has long been a

C. Radaelli, ‘The Puzzle of Regulatory Competition’ (2004) 24(1) Journal of Public Policy 1; R. Baldwin


and M. Cave, Understanding Regulation (Oxford: Oxford University Press, 1999), ch 13; C. Tiebout, 'A Pure

Theory of Local Expenditures' (1956) 64 (5) Journal of Political Economy 416. 19


battle between the US-based GAAP standards and the IASB’s International Financial

Reporting Standards as to which companies will use (here national governments or

regulators can intervene by lending their support to one or the other).

The competition for regulatory share, or export-based regulatory competition, is

not confined to NSRs, however. The EU, for example, is trying to persuade other

countries to adopt key elements of its regulatory regime for chemicals, REACH.

Heyvaert argues that this drive to export the regulatory regime has a number of

motivations. First, there is a pragmatic motivation, pushed by industry, that others


should ‘share the pain’. In other words, exporting the regulatory regime and

promoting transnational convergence on its terms will ensure that any competitive

disadvantage that the regulation imposes on firms is not confined to those in the EU,

thus eliminating the EU’s competitive disadvantage in this respect. Second, the

export strategy is driven in part by the experience of previous challenges of the EU’s

precautionary approach to risk regulation by the US in the World Trade Organisation

Dispute Settlement Body (relating to beef hormones and the commercialization of

GMOs). Heyvaert argues that attempts to promote international convergence on the

EU’s standards ‘is an attempt to find safety in numbers, a rounding up of allies with

Third, this is itself part of a wider strategy of ‘offensive

an eye to the battle ahead’.


management’ of globalization, in which the export of regulation is an instrument of

foreign policy, to create stability in and kinship with other regions, in a relationship in

which the EU, as architect of the rules, hopes to take a central role. Finally, she argues

that lying underneath these different motivations is the attempt to build legitimacy.

The EU’s precautionary approach to risk regulation has been challenged by a number

of other countries, in particular the US. By exporting its chemicals regime, which the

EU regards as a quintessential manifestation of the ‘EU’ approach to risk regulation,

the hope is that its adoption by others will enhance its own legitimacy and authority as

a risk regulator.


Most of the debates on regulatory competition have focused on its ‘import-

based’ form and been conducted in terms of whether the dynamic is one of

competition or one of diffusion and convergence of regulatory norms, and whether

either competition or convergence result in a ‘race to the top’, in other words, an


improvement in the regulatory standards (at least from the point of view of some

broader public policy objective such as environmental protection, or shareholder

protection) or a ‘race to the bottom’, the ‘Delaware’ effect. So, adopting the terms of

that debate for the moment, where there is export-based competition between NSRs,

three questions become relevant. First, is the impact of the competition on the

regulatory regime such that we end up with a ‘race to the top’ or a ‘race to the

bottom’? Second, how do we assess which direction the race is going? Third, what

role does the competition for legitimacy play in this dynamic?

V. Heyvaert, ‘Globalizing Regulation: Reaching Beyond the Borders of the Chemical Safety’ (2009)


36(1) Journal of Law and Society 110.

ibid 116.

68 ibid 114.


D. Vogel, ‘Trading Up and Trading Across: Transnational Governance and Environmental Protection’


(1997) 4(4) Journal of European Public Policy 556; D. Vogel, Trading Up: Consumer and Environmental Regulation

in the Global Economy (Cambridge, Mass.: Harvard University Press, 1995). 20

Julia Black Legitimacy and the Competition for Regulatory Share

Criteria for assessing what is the ‘top’ or the ‘bottom’ is more often assumed

than explicitly articulated in the literature on regulatory competition. Here, we are

interested in whether it leads to more legitimacy or less. However, given the

discussion above on the competing claims of different legitimacy communities

(functional, normative, constitutional and democratic), it should be clear that whether

we have reached a ‘legitimacy top’ or ‘legitimacy bottom’ is likely to be evaluated with

respect to a number of different and often competing criteria based in those different

claims (which are themselves internally contested – there are competing conceptions

of democracy, for example).

So it may be that on some criteria, competition is a positive thing, we end up on

a ‘legitimacy top’. Meidinger argues, for example, that competition ends up enhancing

the democratic element of all the regulators involved in forest stewardship, hence in

Taking a functional criteria of

the regime as a whole, so it is a positive thing.


legitimacy, competition may also be seen to be beneficial. Abbott and Snider provide

examples of where competition leads to higher standards being promulgated by NSRs,

prevents capture, and leads to greater collaboration. However, in the specific instance

of the FSC, they suggest that competition has led to the FSC softening some of its

standards to take into account business interests. In other words, putting the


argument into the terminology being used here, competition has led the FSC to a

legitimacy ‘bottom’ if legitimacy is assessed in functional terms, but to a legitimacy

‘top’ if assessed in democratic terms. And of course, if the assessment is being made

by industry itself, then they might argue that the competition has led to a ‘legitimacy

top’ as it serves their pragmatic, self-interested legitimacy claims.

So the assessments of ‘top’ and ‘bottom’ can never be absolute, just as the

assessments of legitimacy can never be absolute. Assessing the outcome of regulatory

competition for legitimacy needs to be done not by asking the question, ‘have we

reached the top or bottom’, but ‘whose legitimacy claims have been met, and why’?

That is not to say that assessments cannot be made of how democratic a regulatory

regime is, or how functionally effective; or the extent to which it conforms to any one

of the different sets and subsets of legitimacy criteria. It is to say that the assessment is

never an absolute one, but only one which is made with respect to a particular set of

legitimacy criteria. Moreover, given that we are operating here with a sociological

conception of legitimacy, we have to recognize that competition may lead to both a

top and a bottom simultaneously, but with respect to different legitimacy claims.

The outcomes of the competition for legitimacy may therefore be unexpected,

and indeed unwanted, for some. For example, Woods’ paper suggests that ISO is

widely seen as legitimate even though it does not conform with many democratic

criteria. This may be puzzling for some, but using the framework for analyzing


legitimacy suggested above, the ‘puzzle’ of its legitimacy may not be such a puzzle

after all. Rather, it may be widely regarded as legitimate, despite its non-conformance

to democratically-based normative claims, because it conforms to other legitimacy

claims, here to cognitive models of actorhood and to functionally-based normative

Meidinger, n 1 above.

71 Abbot and Snider, n 1 above.

72 Wood, n 64 above.

73 21


claims that it is flexible, non-state, tailored, and responsive: all those ‘new governance’

techniques which are so in vogue. The ISO is widely regarded as legitimate, therefore,

despite its lack of democracy, because it conforms to the legitimacy claims made by its

principal legitimacy communities, for whom, implicitly or explicitly, democratically-

based claims are less important.


The arguments above have provided some illustrations of how regulators use

legitimacy in the competition for regulatory share, but this is a relatively new area of

research. It is not therefore clear whether there a direct relationship between

competition for legitimacy and the amount of ‘regulatory share’ that an organisation /

regulatory regime possesses in the same way that in the more conventional regulatory

competition debate there is assumed to be a direct relationship between competition

for business and the amount of business that is received. Clearly more empirical work

needs to be done in this area.

However, in exploring empirically the dynamics the competition for regulatory

share, it might be helpful to further refine our understanding of legitimacy and thus its

role in this dynamic. I suggest that we can conceptualise legitimacy in this dynamic in

one of (at least) three ways. First, we can see legitimacy as an attribute, second, as a

resource and third, as a (reversible) endowment. Each has implications for how we

understand the role of legitimacy in the competition for regulatory share.




In the image of legitimacy as an attribute, legitimacy is something that a person /

organisation / political institution just ‘has’. There are three striking features of the

notion of legitimacy as an attribute. First, it is an attribute that can be assessed or

measured in some ‘objective’ way, by an (academic) observer, though often the

assessment is black and white: an organisation is assessed as being legitimate or not

legitimate, but not something in between. Just as one cannot be semi-pregnant, under

this conception of legitimacy, a regulator is either legitimate or it is not.

Second, in the image of legitimacy as an attribute, the possession of legitimacy is

seen as quite separate and distinct from the regulatory body’s ability to function. The

many debates there are on the legitimacy of regulatory organisations often conclude

that they lack legitimacy – yet their ability to function notwithstanding this lack is

rarely, if ever, questioned. Much as having blue eyes is not relevant to a person’s

ability to run fast, ‘being legitimate’ in the standard accountability and legitimacy

debates is implicitly seen as quite distinct from the organisation’s ability to regulate.

Third, in the notion of legitimacy as an attribute, it is an attribute that it is

assumed that the organisation can do little about. It is frequently assumed in the more

legal and indeed many political science debates on legitimacy that ‘things have to be

done’ to the organisation to make it legitimate – it has to be changed from the outside

in someway – usually by being made ‘more accountable’ to the public / legislature /


Julia Black Legitimacy and the Competition for Regulatory Share

courts / etc. As noted above, there is little attention paid to how the organisation

itself may seek to create, repair, or maintain its own legitimacy.



In the image of legitimacy as a resource, legitimacy is seen as a thing of value for the

regulator. Legitimacy is a resource which the organisation can use, create, extract,

expropriate, and lose, in the same way it may use, create, or extract any other resource

such as finance, goods, commodities, etc. The image of legitimacy as a resource

marks a distinct break with the image of legitimacy as an attribute in two ways. First,

the organisation is positioned as having an active role in the creation of its own

legitimacy. Second, legitimacy is recognized as being essential to its ability to function,

just as the possession of any other form of resources plays a significant role in the

functioning of an organisation.

The image of legitimacy as a resource invokes a predominantly strategic model of

action, in which the analogy is not with gifts but with market exchange: resources can

be competed over, and once gained, can be increased and utilitised in ways that will

improve the functional capacity of the organisation. Bernstein and Cashore’s recent

work provides a good example of how this image of legitimacy can be helpful in

analyzing the dynamics of competition between regulators, particularly transnational,

non-state regulators. But the notion of legitimacy as a resource suggests that it is


something which sits there ready to be exploited at the will of the organisation; this

does not fit with the notion of legitimacy in the regulatory context that was drawn

above -- that legitimacy is socially constructed and lies in the acceptance by others of

the organisation’s right to govern.




The image of legitimacy as an endowment strays even further into unfamiliar territory,

unfamiliar at least to the standard debates on legitimacy (and accountability). In

proposing this more sociological image of legitimacy, I suggest that legitimacy should

be recognized as something that is of value to the organisation, as in the image of

legitimacy as a resource, yet that we recognize it’s socially constructed nature. In other

words, we recognize, as argued above, that legitimacy is bestowed on a person or

organisation by others: legitimacy is in the eye of the beholder. The organisation

cannot conclusively control whether or not it receives the endowment, though it can

try to elicit it. Much as we can be nice to Granny for years and yet still be cut out of

her will, organisations can ‘pander’ to different legitimacy communities but still not

receive the legitimacy from them that they seek.

However, they may also ‘ignore’ a legitimacy community and yet still receive

legitimacy from it, much as we may receive a surprise bequest. Further, the

endowment that is received may be reversible (just as bequests given through trusts

may be removed if the beneficiary breaches the terms on which they are given).

Organisations can lose legitimacy. Conversely, the legitimacy that they have received

Bernstein and Cashore, n 1 above.

74 23


from particular groups, or legitimacy communities, may simply be unwanted: just as

we might not want Uncle Harry’s clock (or war crime record revealed in his

bequeathed diaries), regulators may prefer that radical political groups, for example,

do not offer them their full support.

The image of legitimacy as a reversible endowment is thus distinct from the

image of legitimacy as a resource. As noted above, the image of legitimacy as resource

is arguably partial, for it assumes that ‘legitimacy’ is ‘out there’ to be won (like a

market share), or extracted (like a mineral). The ‘endowment’ image of legitimacy

corrects this by emphasizing that legitimacy is a function of the perceptions of others

outside the organisation; it is a function of whether or not they accept the

organisation as having a right to regulate and accept its norms as reasons for acting in

a certain way. The endowment image recognizes the giver as well as the receiver and

utiliser of legitimacy; while the resource image emphasises only the latter.

So in talking of ‘competing for’ legitimacy, we are invoking a different image of

legitimacy from that used in the more usual debates, in which legitimacy is seen as an

attribute. Rather, the image is one of legitimacy as a resource or as an endowment.

Both images are consonant with a dynamic context or ‘legitimacy environment’ in

which the demands of legitimacy communities change - both endowments and

resources can be taken away. However the suggestion here is that the image of

legitimacy as an endowment is a more powerful one as it recognizes the sociological

basis of legitimacy, and in particular the essential role of legitimacy communities in

bestowing legitimacy.

The distinction is important, for it affects how we predict whether the

competition will work out. In the image of legitimacy as an attribute, the notion of

‘competition’ is almost an anathema, as it is not conceived of as something over

which the organisation has any control, or something that it can manage in any way. It

simply does not make sense for there to be a ‘competition for legitimacy’.

In the image of legitimacy as a resource, competition will determine the allocation of

resources. That allocation may or may not be optimal for all legitimacy communities

(the race could end up at the ‘top’ or ‘bottom’) but for the moment that is not the

point. The point is that the success of the organisation in strategically managing its

legitimacy and ‘extracting’ it from the relevant legitimacy communities will determine


But it is the image of legitimacy as an endowment which serves as an important

reminder that legitimacy cannot be as effectively managed as the ‘resource’ image of

legitimacy assumes. Organisations can compete for legitimacy, but whether they get it,

and who they get it from, still depends on the assessments of their various legitimacy

communities. Legitimacy may come from an unexpected (and perhaps unwanted?)

source: so Great Uncle Albert, who we have not seen for years, could think of us as

his favourite relation and leave a significant bequest. On the other hand, there are

barriers to legitimacy, which are pragmatic, normative, and importantly, cognitive. So

despite the organisation’s best efforts, legitimacy may not be forthcoming at all from

those legitimacy communities from whom it is sought. We can take Granny to tea as

often as we like, but she may still be ungrateful. 24




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Materiale didattico per il corso di Theories of Regulation della prof.ssa Laura Ammannati. Trattasi dell'articolo di Julia Black dal titolo "Legitimacy and the Competition for Regulatory Share" all'interno del quale è affrontato l'argomento dell'importanza della legittimazione nell'attività di regolazione del mercato.

Corso di laurea: Corso di laurea magistrale in economics and political science
Università: Milano - Unimi
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Theories of Regulation e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Milano - Unimi o del prof Ammannati Laura.

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