Law and Autonomy in German-Language Scholarship of Public Law in the Late-19th and 20th Centuries
Autonomy, or self-legislation by non-state groups and actors, does not fit comfortably in the German-language legal doctrine of the late-19th and 20th centuries. Rather, this era is seen as the age of ‘etatism’, referring to the doctrine of states with complete internal sovereignty and monopolising the production of law, or so goes the common account.
According to this conventional wisdom, phenomena indicating autonomy, which are now often labelled by relatively new terms such as ‘legal pluralism’, have appeared only recently or are buried in the lost constellations of a far more distant past. By examining the history of scholarship, this project problematizes this view by assuming 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.
Discussions of this kind are likely to have taken place in several fields, such as labour and the economy, the social-services sector as well as in local and religious communities. Comparing a selection of sectors can answer many questions relating to German-language debates about autonomy in this period. For example, did the topoi of legitimacy and the arguments rejecting autonomy differ across sectors and how? How did they vary over time in light of profound changes in positive (constitutional) law? The point, therefore, is to study the significance, legitimacy and scope that were accorded or denied to autonomy in academic discussions on public law.
To the extent that state-made law is the 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 project Special Orders: Normative Diversity under Conditions of Functional Differentiation in the 19th and 20th Centuries. The project aims to enrich academic understandings of law, the state and society in our recent past and to contribute to a more nuanced view of the attendant debates.