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The Evolution of the Contracting State and Its Courts

The Evolution of the Contracting State and Its Courts AbstractSince the birth of the modern state, scholars have repeatedly argued that, as a matter of principle in civil law countries, the sovereign state does not contract with private persons. It is a fundamental paradox of the modern state, however, that it commands the power to provide order and general welfare for society but that it is, at the same time, increasingly dependent upon collaboration with private persons.This Article traces the paradox back to the rise of the modern sovereign state in France and in the German Lander (states), which virtually banned contracts between the state and private persons at the end of the eighteenth and the beginning of the nineteenth centuries. It was at this point that the state possessed all the power necessary to unite society; we can see the emergence of the modern state when the sovereign power consciously decides not to utilize contracts during the process of unification.But we can also observe the re-entry of the contracting state between 1850 and 1914 in France under the preconditions of liberal thought, independent administrative courts and the development of a new doctrine to hold the ever more flexible administration accountable frecours pour detournement de pouvoir, appeal for abuse of power). At the same time in Germany and Switzerland, contracts between the state and private persons were still largely inexistent and partially substituted by fiscal theory. Scholars there were primarily concerned with making the state as such more accountable, but no independent courts possessed the competence to review acts by the new interventionist administration.Observing the interdependence of the contracting state and its courts, this Article shows the importance of an independent judiciary and the rule of law for a state increasingly dependent on collaboration with private persons. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

The Evolution of the Contracting State and Its Courts

Abegg, Andreas
American Journal of Comparative Law , Volume 59 (3) – Jul 1, 2011
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References (4)

Publisher
Oxford University Press
Copyright
© 2011 by The American Society of Comparative Law, Inc.
ISSN
0002-919X
eISSN
2326-9197
DOI
10.5131/AJCL.2011.0004
Publisher site
See Article on Publisher Site

Abstract

AbstractSince the birth of the modern state, scholars have repeatedly argued that, as a matter of principle in civil law countries, the sovereign state does not contract with private persons. It is a fundamental paradox of the modern state, however, that it commands the power to provide order and general welfare for society but that it is, at the same time, increasingly dependent upon collaboration with private persons.This Article traces the paradox back to the rise of the modern sovereign state in France and in the German Lander (states), which virtually banned contracts between the state and private persons at the end of the eighteenth and the beginning of the nineteenth centuries. It was at this point that the state possessed all the power necessary to unite society; we can see the emergence of the modern state when the sovereign power consciously decides not to utilize contracts during the process of unification.But we can also observe the re-entry of the contracting state between 1850 and 1914 in France under the preconditions of liberal thought, independent administrative courts and the development of a new doctrine to hold the ever more flexible administration accountable frecours pour detournement de pouvoir, appeal for abuse of power). At the same time in Germany and Switzerland, contracts between the state and private persons were still largely inexistent and partially substituted by fiscal theory. Scholars there were primarily concerned with making the state as such more accountable, but no independent courts possessed the competence to review acts by the new interventionist administration.Observing the interdependence of the contracting state and its courts, this Article shows the importance of an independent judiciary and the rule of law for a state increasingly dependent on collaboration with private persons.

Journal

American Journal of Comparative Law – Oxford University Press

Published: Jul 1, 2011

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