Reviews
| Date | 01 September 2001 |
| Published date | 01 September 2001 |
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00353 |
REVIEWS
Peer Zumbansen,Ordnungsmuster im modernen Wohlfahrtsstaat. Lerner-
fahrungen zwischen Staat, Gesellschaft und Vertrag.Internationale Studien zur
Privatrechtstheorie Vol. 1, edited by Gunther Teubner, Christian Joerges, Hugh
Collins, James Whitman and Antoine Lyon Caen, Baden Baden: Nomos
Verlagsgesellschaft 2000, 363 pp, pb, DM98.00.
While the main title of the book (Models of Governance in the modern Welfare-
State) does not reveal the Herculean task the author has taken upon himself, the
sub-title (Learning experiences between State, Society and Contract) gives a
clearer indication of what lies ahead for the reader: a book about the state, about
society and about contract. One feels inclined to say, a book about everything. It is
not, of course. But it is a tour d’horizon by an able tour-guide through three
discourses which evolve out of and revolve around the concepts of state, society
and contract. The underlying question of this tour is, how and by which means,
processes, agencies, instruments, etc is ‘good governance’ possible?
The tour starts with the state, travels through society and ends with contract. On
the way the reader learns that the interesting question is not how to best distinguish
between these three concepts. The crucial issue, Zumbansen convincingly argues,
is how to connect the knowledge that is stored within these three concepts.
Consider, for example, Zumbansen’s discussion discussion the relevance of the
state in today’s world. While the role of the state and the state itself are changing
and may be diminishing, the state is not considered dead by Zumbansen. In his
analysis the state stubbornly remains the focal point of political self-organisation.
His key to the analysis of the state is the rule of law. Instead of burying the state or
– even worse – forgetting about it because it is unable to cope with the problems it
has to face, Zumbansen suggests persuasively that the normative substance of the
rule of law must remain a vital point of reference (p 92). Using the example of
German welfare law and the changes that have taken place in this area, he shows
that models of self-regulation within society still depend on the presence of the
state guaranteeing the rule of law and carrying at least a part of the responsibility
(pp 149–184). The concept of the state Zumbansen wants to preserve is a concept
that acknowledges and reflects the changes which have taken place. He reminds
the reader of the reasons why the state intervened in the first place and why this
was necessary and then takes a look at the situation today, arguing convincingly
that despite the changes, some of the reasons for state or government intervention
are still applicable.
The section dealing with contract and private autonomy (pp 275–285) provides
another illustration of what is gained by connecting the knowledge stored in the
different concepts addressed by Zumbansen. He argues that in the discourse on
contract the principle of private autonomy is usually not connected with the idea of
public or political autonomy. For him, the autonomy of the individual to enter into
a contract is only one aspect of the individual’s larger public or political autonomy.
By establishing a link between the two, Zumbansen proposes a fundamental
change to the concept of the contract. In contrast with the classical idea of a
contract, the incorporation of the individual’s public or political autonomy into the
ßThe Modern Law Review Limited 2001 (MLR 64:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 809
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