Reviews
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00238 |
| Published date | 01 September 1999 |
| Date | 01 September 1999 |
REVIEWS
Julia Black,Rules and Regulators, Oxford: Clarendon Press, 1997, 298pp, hb
£35.00.
The idea of ‘self-regulation’ has become quite the rage in the United States. It has
become especially popular in the context of ‘cyberspace’. The net, it is said, should
regulate itself. Government should stay out. Only self-regulation would be
effective; only self-imposed rules would work.
The most recent example of this passion for self-control involves the governance
of the Internet’s domain names – those mnemonics that make it possible to refer to
an address on the Internet with letters (eg ‘law.harvard.edu’) rather than numbers
(eg ‘140.247.200.68’). For over a year, the United States government has been
shopping for ways to pass off its role in managing this name-space to a ‘private,
non-profit corporation’ dedicated to the public interest. This pass-off has had broad
popular support in America. ‘The single unifying force’, one commentator said, ‘is
that we don’t want the government running things’ – not surprising, as this
‘commentator’ was the lawyer who negotiated the bylaws of the corporation that
will assume control over the governance of this space.
For those with a perspective beyond the presidency of Ronald Reagan, however,
this admiration for industry codes is frustrating. We’ve seen all this before. But
those with perspective seemed destined to remember and to repeat the history that
they remember. For these cycles of mindless anti-statism appear unavoidable. We
are Sisyphus; the rock is at the foot of the hill.
In the midst of this debate, it is a refreshing book that addresses the question of
‘self-regulation’ in a new way. This is the power of Julia Black’s marvellous and
insightful work, Rules and Regulators. Black’s book is not about the Internet; her
subject matter is drawn far from the problems of regulating code on the World
Wide Web. But her approach, and her conclusions, are exceptionally valuable to
anyone drawn to this siren of ‘self-regulation’.
Black begins her book with a lesson from H.L.A. Hart that sets the terms of the
problem that she addresses. According to Hart:
In any large group general rules, standards and principles must be the main instrument of
social control, and not particular directions given to each individual separately. If it were not
possible to communicate general standards of conduct, which multitudes of individuals
could understand, without further direction, as requiring from them certain conduct when
occasion arose, nothing that we now recognize as law could exist. (The Concept of Law,
p 121).
To state the necessity of ‘rules, standards and principles’, however, is not to say
how rules might ‘work’. This secondary, and far more significant, question – ‘how
to make rules work’ – is the problem that Black sets for herself (p 5).
At one time, this question would have been understood to be a question about
grammar – how best might we state, or utter, rules so that the normative content of
such rules would be transparent. This we might call first-generation rules-talk, and
Black’s discussion of the work of Ehrlich and Posner is representative here. To
ßThe Modern Law Review Limited 1999 (MLR 62:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 803
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