ElectronicjournalofcomparaTiveLaw,vol.9.1(january2005),<http://www.ejcl.org understood in terms of self-regulation: What better way to have effective rules than by havil y well-organIzed groups health care and labour relations were often mentioned as the domains that could generate through the organizations already established there, the rules that would actually be needed to let practices of education, health care and labour relations perform better. Rather than centralized regulation by distant bureaucracies, self-regulation promised dialogically formulated and locally effective regulation by actors with a stake in the work processes and their outcomes The idea has been controversial from the start, however. While its proponents mentioned a number of advantages of self-regulation- such as the mobilization of local knowled ge, a greater tendency towards living by the rules, an increased sense of responsibility with the actors involved and less need for government supervision over application of the rules- its opponents pointed to serious disadvantages. Self-regulation would reflect differences of power and organization between the actors participating in it;it might lead to evading general responsibilities(or shifting burdens onto excluded groups) self-regulation would be selectively enforced and it could even be a cover operation fo domains, standards developed th light also lead to a more bureaucratic organization of illegal practices; self-regulation rough self-regulation might differ too greatly from area to area, hurting the ideal of equality before the law a stalemate ensued, especially since the proponents of self-regulation in turn could point to the well-known disadvantages of centralized government regulation, or rather overregulation: a surplus of inflexible and impracticable rules threatening to make life too complicated and lead ing to suboptimal processes and outputs It was at this juncture that an almost Hegelian synthesis between conflicting ideas of regulation and self-regulation arose: legally conditioned self-regulation. Under this legislative strategy, the legislature initially states a framework of cond itions(both substantive and procedural), within which citizens, companies and social organizations are free to develop their own rules, after which a government agency inspects the results of norm formation and and, a application to ensure that the legal conditions are met When the strategy does not work and, as a result, the actors involved do not succeed in creating rules through cooperation rules which are then also applied through social pressure internal to the domain rather than through state controls, the fall-back option is to take over the regulative process and again supply centrally made rules. Of course, after this procedure the government agency is better informed about the problems besetting self-regulation and so presumably also better able to make rules that are both in conformity with centrally posited objectives and informed by local conditions. In the Ministry of Justice white paper Zicht op wetgeving(Legislation in Perspective)of 1991, this legislative strategy was officially recognized. 4 As one of the Philip eijlander, De wet stellen Beschouwingen overondenwerpen van wetgeving(Zwolle: W.EJ Tjeenk Willink, 1993), pp. 230-231 The locus classicus of this critique is HermanR. van Gunsteren, The Quest for Control: A Critique of the Rational-Central-Rule Approach in Public Affairs(London: John Wiley, 1976). For an update, see Herman R. van Gunsteren, A Theory of Citizenship: Organizing Plurality in Contemporary Democracies(Boulder, Col Westview Press, 1998), pp 36-38 (on the unknown society) Zicht op wetgeving, Kamerstukken 1/1990/1991, 22008, nos. 1-2Electronic Journal of Comparative Law, vol. 9.1 (January 2005), <http://www.ejcl.org/> 2 understood in terms of self-regulation: What better way to have effective rules than by having them drafted by well-organized groups of actors concerning their own domain? Education, health care and labour relations were often mentioned as the domains that could generate, through the organizations already established there, the rules that would actually be needed to let practices of education, health care and labour relations perform better. Rather than centralized regulation by distant bureaucracies, self-regulation promised dialogically formulated and locally effective regulation by actors with a stake in the work processes and their outcomes. The idea has been controversial from the start, however. While its proponents mentioned a number of advantages of self-regulation - such as the mobilization of local knowledge, a greater tendency towards living by the rules, an increased sense of responsibility with the actors involved and less need for government supervision over application of the rules - its opponents pointed to serious disadvantages. Self-regulation would reflect differences of power and organization between the actors participating in it; it might lead to evading general responsibilities (or shifting burdens onto excluded groups); self-regulation would be selectively enforced and it could even be a cover operation for illegal practices; self-regulation might also lead to a more bureaucratic organization of domains; standards developed through self-regulation might differ too greatly from area to area, hurting the ideal of equality before the law.2 A stalemate ensued, especially since the proponents of self-regulation in turn could point to the well-known disadvantages of centralized government regulation, or rather overregulation: a surplus of inflexible and impracticable rules threatening to make life too complicated and leading to suboptimal processes and outputs.3 It was at this juncture that an almost Hegelian synthesis between conflicting ideas of regulation and self-regulation arose: legally conditioned self-regulation. Under this legislative strategy, the legislature initially states a framework of conditions (both substantive and procedural), within which citizens, companies and social organizations are free to develop their own rules, after which a government agency inspects the results of norm formation and norm application to ensure that the legal conditions are met. When the strategy does not work and, as a result, the actors involved do not succeed in creating rules through cooperation, rules which are then also applied through social pressure internal to the domain rather than through state controls, the fall-back option is to take over the regulative process and again supply centrally made rules. Of course, after this procedure the government agency is better informed about the problems besetting self-regulation and so presumably also better able to make rules that are both in conformity with centrally posited objectives and informed by local conditions. In the Ministry of Justice white paper Zicht op wetgeving (Legislation in Perspective) of 1991, this legislative strategy was officially recognized.4 As one of the 2 Philip Eijlander, De wet stellen. Beschouwingen over onderwerpen van wetgeving (Zwolle: W.E.J. Tjeenk Willink, 1993), pp. 230-231. 3 The locus classicus of this critique is Herman R. van Gunsteren, The Quest for Control: A Critique of the Rational-Central-Rule Approach in Public Affairs(London: John Wiley, 1976). For an update, see Herman R. van Gunsteren, A Theory of Citizenship: Organizing Plurality in Contemporary Democracies (Boulder, Col.: Westview Press, 1998), pp. 36-38 (on the ‘unknown society’). 4 Zicht op wetgeving, Kamerstukken II 1990/1991, 22 008, nos. 1-2