The interaction of key players in company law
Who sets the pace in German company law? How do key players shape the scholarly discourse? What rules of play does this discipline depend on in order to flourish? Holger Fleischer, Director at the Max Planck Institute for Comparative and International Private Law, tackles these pivotal questions in an article published in the Neue Zeitschrift für Gesellschaftsrecht 2019, vol. 24. In the piece, entitled “Gesellschaftsrechts-Honoratioren: Schlüsselfiguren im Gesellschaftsrecht und ihr diskursives Zusammenwirken” [Company law Honoratioren: Key figures in company law and their discursive interaction], Fleischer encourages self-reflection from the perspective of one of the participants in this discourse.
Loosely following Max Weber’s concept of legal Honoratioren, Fleischer uses the term “company law Honoratioren” to explore the framework conditions for processes of development of company law. He does this in two steps, starting with the notion of the formative players in modern company law and their collaborative interaction: professors, federal judges, top lawyers and notaries, and ministry officials. Here Fleischer notes that although women have written leading textbooks, they remain underrepresented all categories. On the whole, he describes the German approach to company law as a discursive culture characterized by extensive exchange among all its participants.
Following his differentiated presentation of this microcosmos, Fleischer looks in depth at typical discursive processes de lege lata and de lege ferenda. He speaks in favour of more new proposed theories, which could serve, first, to better support jurisprudence and, second, to elucidate topics that are not directly relevant to practice. He also describes the predominant mode of legislating in the area of company law in Germany today and the vital role that the Federal Ministry of Justice and Consumer Protection plays in it.
Fleischer concludes by pointing to potential areas of future research. These concern criteria for the quality of case law in company law, the orientation of existing discussion groups and genres of literature, and the growing impact of EU law. Delving deeper into these topics promises not only new insight, but also an informative backdrop against which the future shaping of the specialist discourse in this area can be discussed.
Holger Fleischer, Gesellschaftsrechts-Honoratioren: Schlüsselfiguren im Gesellschaftsrecht und ihr diskursives Zusammenwirken, NZG 2019, 921-930