Chapter 7 - Actors Developing Private Law in the German Legal Order

Summary

Introduction

In the case studies, it has become clear that state actors still play a prominent role in the development of the law on STCs. Is this more generally the case, or do non-state actors also play an important part in the development of private law?. What actors develop private law in the German legal order, and what is the role of those actors in the German constitutional framework and the European framework?

‘This book will defend that a framework to help determine the role of state and nonstate actors can be deduced from German law. So far, no such framework has been defended as such for the development of European private law. Originally, private law discussion did not consider the development of alternative regulation in private law in the light of private autonomy (‘Privatautonomie’).’

‘Literature on alternative regulation and later debate on self-regulation in private law did consider the development of binding rules in this light.’

‘Despite a clearly delineated and defended framework, German law, literature and the various instances of alternative regulation make clear that such a framework could and should be construed.’

On the one hand, in the framework defended in this chapter, the role of especially non-state actors in the development of private law is based on the idea of private autonomy and self-determination (‘Selbstbestimmung’), protected as a manifestation of the general freedom of action (‘allgemeine Handlungsfreiheit’) under article 2 Grundgesetz (GG), and the concept of ‘Fremdbestimmung’, that has also been translated as ‘heterodetermination’, 1464 in Dutch: ‘heteronomie’.

Hetero-determination, or Fremdbestimmung, is the opposite of party autonomy. Fremdbestimmung arises if one is bound by rules one has not been able to influence. Legal persons can influence the rules that they are bound to by choosing to enter into a contract, by becoming a member of an association or by choosing to comply with selfregulation. One may indirectly influence legal rules one is bound by through the democratic process. In contrast, Fremdbestimmung refers to the situation where actors develop rules that bind other actors even though these actors have entered into a transaction with the rule-making actors, and even though they have not democratically elected the rule-making actors. Thus, Fremdbestimmung refers to being bound by nondemocratically legitimised rules over which one has also not contracted.