The Legitimacy of the Contracting State

Globalization challenges our understanding of the state as the main source of legitimate law. 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. Furthermore, there are many types of contracts between administrative agencies and private companies securing public services or promoting public policies. 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. 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.