Responsible Researcher

Dipl.-Soz. Gerd Bender
Gerd Bender
Researcher, European Affairs Commissioner of the Max Planck Institute for European Legal History
Phone: +49 (69) 789 78 - 136
Fax: +49 (69) 789 78 - 169

Research Project | Department II

Social Regulation and Modern Corporatism

According to a pervasive and fast spreading view, the industrial society is on a global scale on the move. “The second machine age” or “Industry 4.0” mark the impending arrival of a technological boost in digitalisation and robotisation, which should completely change the production regime in the coming decades. And in these changing times there is news about an imminent change with regards to the advanced forms of “learning systems”: the future of the future - if you will. Above all, perspectives of work, regulations related to work and the role that collective agents on the job market can still play are the subject of an intensifying debate. This debate is carried out in the light of a vast, historical background, and the sub-discipline History of Labour Law, as a specialist for turbulent institutions, contributes significantly to the configuration of this background.

The regulation of work relations and social security was and still is one of the great topics of the age of industrial society. The historical field is shaped (in Germany since the 1870s) by a strong faith in the social compatibility of this new market economy, equally strong criticism of market failure, a return of the active state, which suppresses more or less successfully the problem of political failures, as well as associations that have discover a partial systemic self-regulation as the new ideal way between market and state. They base their demands for autonomy and participation more and more on this superior regulation competence and form corresponding narratives of justification into complex intellectual edifices of legitimisation.

On the European continent, this causes in some cases vigorous reactions. The self-regulative world of corporative agents – of their communication systems and networking – comes under the state’s scrutiny. Self-regulation is reshaped by state norms; the unfolding collective labour law, which is interlinked with the novel regulator of free collective bargaining (Tarifautonomie), rises to the position of a prototypical legal innovation. “Regulated Self-regulation” describes the pattern of the new statehood, the extended state or the “political system” with its growing periphery of associations connected to the state as the system’s centre.

In this context of intertwined regulation, strategies of attachment and condensation have made their appearance since the mid-19th century to the present day. Through these strategies, modern associations experience some kind of correction by being brought more into line with the public status of the old corporations. The associations are supposed to accept the public role assigned to them and integrate the relation to the state into their self-description. In return, they can expect recognition and consideration by the state (neo-corporatist trade off). Legal coercion and state intervention cannot be ruled out in the case that corporatism fails and remains there as an ever-present possibility looming – constitutionally more or less domesticated – in the sphere of options of the structural future.

The project attempts to grasp this tripartite nexus together with its repercussion in jurisdiction via a historical cross-section. For this, the focus is on German data. Other national law systems will be inserted to the best of our abilities – organisationally transmitted via scientific exchange and cooperation – in order to take “varieties of capitalism”, which outlasted globalisation, and the connected “plural” orders of regulation into account.

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