Reckoning with Private Regulation in Contemporary Law and Legal Thought

In Human all too Human, Nietzsche envisaged a world where a generalized “distrust of all government will impel men to do away with the concept of the state [and] the abolition of the distinction between private and public” while “private companies will step by step absorb the business of the state”. The proliferation of a varied and multifaceted fauna of private regulators in every realm of public policy makes Nietzsche’s premonitions seem nowadays prophetic. After mapping how private regulation has been theorized across the private/public divide, this paper advances a new conception of the phenomenon that pertains the ‘boundaries of administrative law’: the ‘idea of a private administrative law’. Instead of demise of the state or the public/private divide, passim Nietzsche, this renewed conception reveals the enduring relevance of the divide in shaping a contemporary governance landscape through continuous rules (and struggles) for recognition that are marked by a spirit of trust.