Legitimation structures of private, intermediary and hybrid regulatory regimes

Project management: Prof. Dr. Thomas Duve

The question of how non-state or semi-state exercise of sovereignty is legitimized has been posed since the beginning of the 19th century, when modern statehood and private law society emerged as autonomous spaces in their own right. The core concern of the project is the elaboration of legitimation patterns that appear in the justification of such non-state or semi-state activities, which de facto or de jure correspond to the exercise of sovereign power. This may involve various forms of law-making, jurisdiction or the exercise of administrative tasks as practiced in the legal system of the 19th and early 20th centuries.

The project sees itself as a contribution to the research field of “plurality of normative orders”. The ensemble of novel regulatory collectives observed in the project makes a significant contribution to the social fact of “normative plurality”, which is associated with diverse and controversial legitimation narratives. Such legitimation narratives are analyzed by examining the respective legitimation needs, legitimation criteria such as legality, common good, effectiveness and efficiency and various sources or topoi of legitimation such as autonomy, sovereignty, democracy or self-government.

The project was based on extensive preliminary work that had been carried out as part of the cluster project “Regulated self-regulation from a legal-historical perspective” (cluster phase 2008-2011) and was primarily aimed at recording fields of practice and regulatory instruments of non-state and semi-state regulation. On this basis, the conceptual background and the constitutional and legal reflections of such modes of regulation and thus also their legitimizing references could be worked through in the funding period from 2015.

The interdisciplinary cooperation with the political science cluster project “The Legitimation of Non-State Regulation in Networked Normative Orders” (K. D. Wolf) has proven to be very fruitful. It was deepened in a joint workshop, the results of which have now been published.

It was possible to work out that the intensity of the (contemporary) academic debate on the legitimization of non-state regulation in Germany in the 19th and 20th centuries was not very pronounced; in this respect, one can speak of a theoretical “underbalance”. Important references can be found under the keywords “cooperative” and “autonomy” in the works of the “Gierke School”, but also in Stein’s administrative theory and in corporatist literature. In the latter school, which is actually classified as anti-democratic, the strong reference to democratic argumentation topoi is striking; this apparent contradiction can also be explained by the fact that a uniform understanding of democracy had not yet emerged by the middle of the 20th century. More important, however, were debates carried out by practitioners and, in particular, by representatives of associations, to which particular attention was paid in the project. In these debates, legitimation topoi with sector-specific contours emerged.

In the interdisciplinary and transnational perspective, the almost continuous reference to epistemic justification elements is striking, but otherwise the finding of an extremely rich variety of input- and output-oriented justification approaches predominates.

The most important publications in this project:

*Collin, Peter: “The Legitimation of Self-Regulation and Co-Regulation in Corporatist Concepts of Legal Scholars in the Weimar Republic”, in: Politics and Governance 5(1), 2017, [online] http://www.cogitatiopress.com/politicsandgovernance/article/view/784 [15.10.2017].

Wolf, Klaus Dieter/Peter Collin/Melanie Coni-Zimmer (eds.): “Legitimization of Private and Public Regulation: Past and Present”, in: Politics and Governance 5(1), 2017, [online] http://www.cogitatiopress.com/politicsandgovernance/issue/view/58 [15.10.2017].

Collin, Peter: Privat-staatliche Regelungsstrukturen im frühen Industrie- und Sozialstaat, Oldenburg: De Gruyter, 2016.

Collin, Peter/Sabine Rudischhauser/Pascale Gonod (eds.): “Autorégulation régulée. Analyses historiques de structures de régulation hybrides / Regulierte Selbstregulierung. Historical analyses of hybrid regulatory structures” (= Trivium. Revue franco-allemande de sciences humaines et sociales 21), 2016, [online] http://trivium.revues.org/5229 [15.10.2017].

Collin, Peter: “Regulierte Selbstregulierung der Wirtschaft”, in: Zeitschrift für Neuere Rechtsgeschichte 37, 2015, pp. 10-31.

people in this project:

Project management / contact person

Duve, Thomas, Prof. Dr.

Project staff

Collin, Peter, PD Dr.