Law and autonomy in german-language scholarship of public law in the late-19th and 20th centuries
According to the established scholarly narrative, autonomy, or self-legislation by non-state groups and actors, did not fit into the German-language legal doctrine of the late 19th and 20th centuries. Rather, this period is seen as the age of ‘etatism’, referring to the doctrine of states with complete internal sovereignty having monopolised the ability and competence to legislate.
Phenomena indicating autonomy – now often labelled using relatively new terminology, such as ‘legal pluralism’ – have thus supposedly appeared only in recent decades, or were part of historical constellations that disappeared with the rise of the modern state. By examining the history of scholarship, this project problematises this view, starting from the hypothesis that the question of whether law can originate from different sources and be created by various actors has never been completely absent from German constitutional and administrative jurisprudence.
These issues were likely also raised in debates concerning those areas of society where non-state regulations had traditionally played a role, such as in work and economic life, the area of social services, as well as in municipalities or religious communities. Comparing different social sectors can answer many questions relating to German-language debates about autonomy between ca. 1871 and the mid-20th century. For example, did the topoi of legitimacy and the arguments rejecting autonomy differ across sectors and if so, how? How did they vary over time in light of the profound changes in positive (constitutional) law? The project’s aim, therefore, is to study the significance, the legitimacy and the scope accorded or denied to autonomy in academic discussions on public law.
To the extent that state-made law is the supposedly classical standard case, this project takes into account how scholars have dealt with its converse, which has always provided a latent contrast. It is organised as a sub-project of the broader research field Special Legal Orders. The project aims to contribute to a more nuanced view of academic understandings of law, the state and society in our recent past.