Governance im Gesundheitsrecht – Zur Bedeutung der Referenzgebiete für die verwaltungsrechtswissenschaftliche Methodendiskussion

Abstract

German administrative law scholarship has been characterised by methodology debates in the last few years. These debates concern the question whether administrative law scholarship should be restricted to the interpretation of the letter of the law by means of the so-called Juristische Methode, or whether it should embrace those aspects that influence administrative decisions, but are not contained in the letter of the law. These discussions have come about because of doubts about the ability of the law to control administrative decisions and, in that context, to steer the increasing cooperation of the state with private agents to fulfil public duties. A key concept in these debates is the term “governance” which is drawn from the economic and social sciences. This term comprises regulatory structures which are characterized by a mixture of hierarchical (= governmental) legislation and cooperative, or even informal modes of action such as communication, negotiation and dispute resolution. The laws relating to social security and to the public health system are both areas of reference for the governance debate. They have always been governed less by detailed, hierarchical instruments and more by the goal-oriented cooperation of service providers (like health insurance companies) and service producers. To date this potential has not been recognised in the methodology discussions of public administrative scholarship; in particular, it is not acknowledged that this form of cooperation is not in need of innovation but reform. The example of the German public health law shows that governance may provide the necessary interdisciplinary link between legal and social sciences. However, it cannot serve as a means to loosen the constitutional commitments within the public health system.