The Legitimacy of the Contracting State
Abegg, Andreas, Law and Contemporary Problems
INTRODUCTION: THE ORIENTATION OF PRESENT-DAY DOCTRINE ON THE CONTRACTING STATE
Globalization challenges our understanding of the state as the main source of legitimate law. (1) This article will take this claim one step further. Today, we may also see the decline of the state, in its modern sense, from within. Evidence for this may be found in the rising importance of contracting by the administrative state fulfilling its duties. For example, in various countries in Europe, the administrative agencies make contracts with people regarding the conditions they must meet to obtain asylum, parole, and social welfare assistance. (2) Furthermore, there are many types of contracts between administrative agencies and private companies securing public services or promoting public policies. (3) For example, the federal administration of Switzerland recently hired a private company to run the electronic cadastral register, a task clearly once thought of as a core responsibility of the state. (4)
In the law of continental Europe, the contract between the state and private persons--also generally known as the administrative contract--appears in two manifestations: as a private law contract between the administrative state and private persons on the one hand, and as a public law contract between the administrative state and private persons on the other. With this contract, either in the private law or the public law manifestation, the state is using the tool of legally stabilized cooperation to achieve its political goals. Thus, in the private law administrative agreement, a public element is introduced with the setting of a political goal, and in the administrative-law agreement, a traditional element of the private is introduced with the cooperation form of contract.
From the observational perspective of a system theory based on evolutionary theory, what is initially evident when we consider the subject of the contract between the state and private persons is the juxtaposition of politics and law. In this juxtaposition, on the one hand we have what the political system aims to do--to unite the whole of society with the law and to bring about general prosperity. On the other hand, the aim is for the administrative state to be controlled by the rule of law: firstly, to ensure that planning security is a service provided by the law for modern society (and in particular for the economy), and secondly, to legitimize the administrative state's use of force by presenting it as a service provided by the law for the political system and for society in the wider sense. Furthermore, the contract between the state and private persons demonstrates a juxtaposition of law and those areas of society that, as a result of the contract, become linked with the political system. Normally what we have here would be a co-evolution between the political and the economic systems: instead, the need to flexibly transfer certain state functions to the economic sphere collides with the premise demanded by economics--that it should be possible, within the market environment that has been safeguarded by the state, to create a profit in economic projects, and to use this profit as a new basis for future profit-making. To put it briefly, the flexibility required in the political sphere for the implementation of public policies is set against the economic sphere's demands for planning security. (5)
According to the current literature on contracts between the state and private persons, the main task of legal scholars should be to "use" the legal institution of the contract to make the increasingly divergent interest structures of society useful to the administrative state, for the realization of the administrative state's own program. (6) But, when the administrative state resorts to contracts and the inevitable freedom of action and negotiation associated therewith, such increase of cooperation results in a crisis of legitimacy for the administrative state, which leaves the safe haven of traditional legitimacy mechanisms provided by democracy and the rule of law. …