Field Recognition and the State Prerogative: Why Democratic Legitimation Recedes in Private Transnational Sustainability Regulation

Abstract

Like any regulatory effort, private transnational standard-setters need to legitimate themselves to the audiences from which they seek support or obedience. While early scholarship on private transnational governance has emphasized the centrality of democratic legitimation narratives in rendering private governance socially acceptable, evidence from more recent standard-setting schemes suggests a declining relevance of that narrative over time. In my analysis of private sustainability regulation, I identify a combination of two factors that jointly contribute to this diminished role of democratic legitimation. First, private transnational governance has become a pervasive phenomenon. This means that new entrants to the field no longer face the same liability of newness that required first movers to make an extra effort in legitimation. Second, private standard-setting has moved from areas characterized by 'governance gaps' to areas in which meaningful intergovernmental regulation already exists. In these areas, however, the 'state prerogative' in legitimating governance holds. As a result, transnational standard-setters rely not so much on stressing their democratic credentials, but instead emphasize their contribution to achieving internationally agreed goals.