Social Regulation: Modern Corporatism and Private Power

Completed Research Project

Today, industrial society is facing a major global upheaval. The second machine age, or ‘Industry 4.0’, marks an imminent technological push of digitisation and robotisation that will fundamentally change the production regime in the coming years. And within this current upheaval, with a view to advanced forms of learning systems, something new is already emerging: the future of the future, if you will. In particular, the work perspectives, the regulations related to work and the role that collective labour market actors can and should still play are the subject of an ongoing and intense debate. Recently, the full explosive potential of such a constellation has become perceptible in the great controversy surrounding the institution of collective bargaining autonomy that took place in the Federal Republic of Germany between 1980 and 2010. The debate took place against an extensive historical background, the configuration of which was strongly influenced by the history of labour law, which specialises in examining turbulent institutions. My contribution ‘Herausforderung Tarifautonomie. Normative Ordnung als Problem’ (in: Rechtswissenschaft in der Berliner Republik, pp. 697 – 725, Eds. Duve. T.; Ruppert, S. Berlin 2018) is an attempt to offer a new classification.

The regulation of industrial relations and social security was – and is – one of the major issues of the industrial society era. The historical field (in Germany since the 1870s) is marked by strong doubts about the social compatibility of the new market economy, by equally strong criticism of market failure, by a return of the active state and by rising associations that are discovering sub-systemic self-regulation as the new royal road between market and state. They are increasingly basing their claims to autonomy and participation on this superior regulatory competence and are transforming the corresponding justification narratives into complex legitimation constructs.

There have been strong reactions to this development on the European continent. The self-regulating world of the new corporate actors – their communication structures and networks – comes into the perspective of the state. Self-regulation is transformed by state norms; the unfolding collective labour law, coupled with the novel regulator of collective bargaining autonomy, becomes a prototypical legal innovation. Regulated self-regulation refers to the template configuring the new notion of statehood, the expanded state or the political system with its increasingly rich periphery of associations linked to the state as the system centre. From the mid-19th century to the present day, strategies of fortification and consolidation have appeared in this context of interwoven regulation. Modern associations undergo a kind of correction within the context of these strategies by approaching the public status of the old corporations. The associations should assume the public role they have grown accustomed to and incorporate the reference to the state into their self-description. In return, they can expect state recognition and consideration (neo-corporatist trade off). Of course, legal coercion and state intervention are not ruled out in the case of corporatism failures and remain on the contingent horizon of the structural future – more or less domesticated under constitutional law.

The project attempts to capture this tripartite connection, including its echo in the legal system, in a historical longitudinal view. The focus is on German research material. Other national legal systems, when possible, will be shown – through academic exchange and cooperation – in order to adequately take into account the varieties of capitalism that outlast globalisation and the plural regulatory regimes associated with it. Particular attention will be paid to the scientific reflection of the changes and the relevance of private power forced by the system of corporatist regulation. The question of the above-mentioned presence of private actors in the subsystem of politics has – also and especially – had a lasting influence on the 'political science' debate during the period under study. This debate focused on the inclusion/exclusion of organised interests in 'politics' and the associated opportunities of a complex order. Quite a few authors opted for a clever and cunning Leviathan that sees itself as the centre of a broader political system and can thus meet the challenge of the diverse social conditions. Others stress the risk of a fraying statehood, a ‘quantitatively total’ state or the socially disintegrating abuse of private power. Figures such as the constitutional lawyers Conrad Bornhak and Carl Schmitt, as well as the co-founder of Ordoliberalism Franz Böhm will be at the centre of this study.