By Sigrid Boysen, Ferry Bühring, Claudio Franzius, Tobias Herbst, Matthias Kötter, Anita Kreutz, Kai von Lewinski, Florian Meinel, Jakob Nolte and Sabrina Schönrock

A.  Barriers to Entry

Why should public law be concerned with networks? What is the point of taking up a concept that does not originate from a legal context? What is the appeal of this topic? Perhaps the concept describes certain “basic structures of post-nation society”, thus questioning traditional central categories of public law; certainly, it has a certain modernistic charm. Public law, however, has thus far not succumbed to that charm. This is understandable. Dealing with networks is frequently based on an affect against hierarchical structures that favours spontaneous coordination solutions and their legitimacy through output. In jurisprudence, this effect is met more often than not with suspicion. This suspicion stems from a number of objections.

I.  Interdisciplinarity

The first objection concerns the interdisciplinary character of the project and points to the risk of overburdening the law through that interdisciplinarity. The reception of the ever-spreading idea of networks cannot succeed en bloc. The transfer of perspectives and interpretative patterns from other disciplines into law is a creative process during which objects and notions transform, and must transform. Thus, what is needed is legal creativity. The methodical origin of the idea of networks can shape and inspire their usage as a legal concept; however, the usage must not be prejudiced. Knowledge of reference problems in related disciplines allows their creative integration into the legal description, but prejudices little or nothing at all, thus generally causing neither an “overburdening” nor an “unburdening” of the law. Even if it was possible to make a dogmatic concept out of networks, dogmatic law concepts do not equal legal concepts. However, by helping to organise and systematise the legal material, they acquire their own normativity and make an important, although not unproblematic, contribution to lawmaking.

II.  Presumptions

The second objection pertains to the normative presumptions...