Regulated self-regulation from a legal-historical perspective

Project leader: Prof. em. Dr. Dr. h.c. mult. Michael Stolleis

The Cluster of Excellence project “Regulated self-regulation from a legal-historical perspective” was part of research field 4 of the first funding period as an attempt to analyze the development of normative structures outside of the normative power of the nation state, or rather: autonomous from it, but under its protective umbrella, and at the same time to work out forms in which this autonomy was put to use by the state. The research was guided by the question of how, from a historical perspective, norm creation and norm enforcement took place as processes external to the state and how they simultaneously interacted with the state’s regulatory power. With this approach, this project also broke away from the traditional legal-historical perspective, which focused on the state as legislator and law enforcer. At the same time, it captured the fundamental conflict over normative orders that characterized the 19th and 20th centuries: the struggle to balance the demands of society and the state.
In this context, regulated self-regulation was understood as the self-coordination of social actors which, due to its relevance to public interests – however charged in terms of content – is embedded in state programmes, instrumentalized for state objectives and subjected to regulation geared towards this purpose – regulation that goes beyond the general regulation of market behaviour. Thus, not all forms of social self-coordination, not all phenomena of the creation of legally binding effects among private individuals have been included, but only those that exhibit a relationship to aspects of overarching “common good” concepts – which are, of course, changeable and repeatedly called into question. The boundaries, which are not easy to draw, must be discussed on a case-by-case basis.
The project addressed regulated self-regulation as a phenomenon of the 19th and 20th centuries and thus as a manifestation of social development in a developmental process of modern statehood, in which the emergence of a more reactive state that ensured order was followed by the establishment of a more proactive intervention and welfare state. The project took account of this developmental process – albeit presented here in a coarser form – by initially approaching the problem in a historical two-step approach.

A first conference was dedicated to the “incubation phase” of regulated self-regulation in the 19th century (July 2009), the following conference (June 2010) dealt with its manifestations in the intervention and welfare state of the late 19th and early 20th centuries. The thesis of a stronger statist transformation in the second period was confirmed for numerous social sub-sectors. Traditional forms of organization and action under public law were used and modified (e.g. from corporate and regal law), but in some cases new instruments and concepts were also developed or old ones took on a completely new form; for example, the self-government model was extended to the economic and social sectors. On the other hand, it became apparent that forms of private law, above all the association, were strongly integrated into the performance of public tasks and combined with strong elements of state control.
In themselves, these are not new legal-historical findings; however, these insights have so far tended to be formulated at a meta-level and have mostly been characterized by a one-sided perspective: either the genesis of forms of securing social freedom or the development of instruments of state regulation. The lectures, on the other hand, not only made a contribution to demonstrating forms of regulated self-regulation in numerous sub-areas in which they have so far been little addressed in legal history (the concept of regulated self-regulation had so far only been worked out for one specific sector: collective bargaining law), they also illustrated that the significance of the corresponding instruments can only be understood with sufficient precision as parts of regulatory arrangements in which self-determination and heteronomy are expressed in equal measure. With regard to the modern discussion on regulated self-regulation, it also became clear that, unlike this self-administration, it cannot be excluded from the area of regulated self-regulation (because it is only “indirect state administration”), but must be understood substantially as social self-regulation (albeit with a strong state control component), at least until the 1920s. – The two conference proceedings are available in print. (Collin, Peter/Bender, Gerd/Ruppert, Stefan/Seckelmann, Margrit/Stolleis, Michael (eds.) (2011): Selbstregulierung im 19. Jahrhundert – zwischen Autonomie und staatlichen Steuerungsansprüchen (Studien zur europäischen Rechtsgeschichte 259, Moderne Regulierungsregime 1) Frankfurt/M.: Klostermann; Collin, Peter/ Bender, Gerd/Ruppert, Stefan/Seckelmann, Margrit/Stolleis, Michael (eds.) (2012): Regulierte Selbstregulierung im frühen Interventions- und Sozialstaat (Studien zur europäischen Rechtsgeschichte 270, Moderne Regulierungsregime 2), Frankfurt/M.: Klostermann).

At a third conference (June 2011), the focus was extended to phenomena of regulated self-regulation in legal systems outside Germany (Central and Western European countries, USA). In doing so, it was necessary to take into account the fact that the term itself was already partly charged with other meanings from a contemporary perspective, and in some cases has hardly been included in the discussion. It has established itself even less as a key legal-historical term. However, the contributions showed that it is a thoroughly fruitful analytical category for legal developments outside Germany as well. It became clear that, from an international perspective, four types of regulated self-regulation can be distinguished: liberal-civil society (especially the USA), liberal-“Jacobin” (especially France), corporate (e.g. Italy, Austria) and cooperative (partly the Netherlands, Sweden) – admittedly taking into account a considerable change in form over time and with numerous mixed forms. – The contributions were published in another conference volume. (Collin, Peter/Bender, Gerd/ Ruppert, Stefan/Seckelmann, Margrit/Stolleis, Michael (eds.) (2014): Regulated self-regulation in the western world of the late 19th and early 20th century (Studien zur europäischen Rechtsgeschichte 290, Moderne Regulierungsregime 4), Frankfurt/M.: Klostermann.)

At a fourth conference (January 2013) – in cooperation with the LOEWE focus area “Judicial and extrajudicial conflict resolution” – a special form of regulated self-regulation was discussed: judicial self-regulation. This was based on the consideration that self-regulation is usually perceived primarily as norm-setting (and partly administrative) self-regulation, but not in its judicial forms. It turned out to be useful to distinguish between self-regulation by (or through) the judiciary and self-regulation of the judiciary. The latter variant can be seen as a form of functional differentiation of the legal system and autonomy required by the rule of law and takes the form of judicial self-administration. The first variant presents itself as a (possible) mode of self-regulation of social sub-sectors; this was illustrated comparatively (Germany, England, France) for judicial non-state and semi-state conflict resolution in the area of labor law. – The resulting conference proceedings were further processed and finalized after the end of the project. (Collin, Peter (ed.) (2016): Justice without the State within the State. Judicial Self-Regulation in the Past and Present (Studien zur europäischen Rechtsgeschichte 295, Moderne Regulierungsregime 5), Frankfurt/M.: Klostermann.)

In addition, work was completed on a source volume that deals with areas of regulated self-regulation that are not covered in the conference proceedings, or only in brief form. This concerns, for example, the maintenance of river infrastructure by water cooperatives, the electricity industry, private welfare, the semi-public financial sector (savings banks and credit cooperatives) and the railroads. For each of these sectors, the relevant framework regulations are reproduced, i.e. the statutory provisions as well as the sub-legislative standards material (e.g. model statutes, administrative guidelines, framework agreements). Each chapter includes a detailed introduction that reviews the existing research and introduces the reader to the problems of the respective subject area. The period covered extends from the middle of the 19th century to the end of the Weimar Republic. – The work on the volume was completed during the project period and was subsequently published. (Collin, Peter (2014): Treffräume juristischer und ökonomischer Regulierungsrationalitäten (Studien zur europäischen Rechtsgeschichte 286, Moderne Regulierungsregime 3) Frankfurt/M.: Klostermann.) Further publications are noted in the list of publications.
The overall result of the project is a comprehensive analysis of the legal manifestations of regulated self-regulation in the 19th and early 20th centuries. The organizational framework conditions and the sets of instruments are made visible. The embedding in contemporary key debates, e.g. on self-administration, (private) autonomy, economic democracy and subsidiarity, becomes recognizable. One striking result is the strong affinity of collective social actors for public-law forms of organization, which promised official dignity, authoritative powers and more reliable funding. Although the resulting stronger state influence was problematized, it was not a fundamental obstacle. A look at legal systems outside Germany has shown that regulated self-regulation is a sign of modern societies, but that its form varies, and not only depending on how “strong” the state is, as can be seen, for example, in a comparison of Germany and France.

Further information on the continuation of the project after the end of the first term of the Cluster of Excellence: https://www.rg.mpg.de/forschung/regulierte-selbstregulierung-in-rechtshistorischer-perspektive