Why are private actors able to co-govern prostitution policy and assisted dying in Germany?
Prostitution and assisted dying are highly contentious topics in German politics and many more countries around the world. Policy-makers commonly disagree on the “right way” of solving related policy problems. Some MPs suggest to legalize the supply of sexual services and recognize the activity as regular profession, while others propose to ban the activity and criminalize clients. In assisted dying, we find a similar contentious debate. Central questions are: Is it “morally right” to ask doctors to assist someone in dying? And should we allow private organizations to gain profit from ending someone’s life? On the other hand, is it reasonable to let someone suffering from severe pain for a long time due to an incurable disease without considering his/her desire for an assisted death?
These questions are difficult to answer for policy-makers because the “right solution” depends on individual norms and values varying amongst MPs. The predominance of value-loaded arguments in contrast to economic interests is typical for morality issues (Mooney 2001, Knill 2013). Technological modernization in health care and increasing migration flows pushed both topics – assisted dying and prostitution policy – on many governmental agendas today. Hence, many countries have regulated the topics recently or are still in the process of discussing any regulatory adjustments. Considering the cultural relevance of morality policies, however, it is very puzzling that we find several instances in which private actors are involved in governing these issues. Germany is a prominent example: The German Medical Chamber (BÄK) is a powerful private actor, substantially involved in rule-making of assisted dying. In prostitution policy, different private actors co-govern policy implementation since in the early 2000s.
Why are private actors able to co-govern policies defining the moral order of a state? And what conditions account for diverging patterns across regulatory spaces and time? In a recent contribution in the Journal of Public Policy, my co-author and I argue that the extent of private engagement is determined by the private actors’ capacity to govern, the extent of governmental decision-making barriers, and private actors’ interests. In other words, we demonstrate that a combination of three conditions opens a window of opportunity for private actors and explains their varying influence in the governance of morality policies over time and topics.
In detail, we show that the BÄK co-governs assisted dying in Germany. The BÄK adopted in 1979 explicit guidelines that prohibited all forms of euthanasia. Later on in 1998, the BÄK decided on guidelines for living wills which resulted in the permission of passive euthanasia. In the 2000s, the state followed with law reforms in terms of living wills and the prohibition of organized, commercial assistance for suicide in 2015. We demonstrate that the BÄK’s influence is a product of its large governance capacity (including expertise, large financial and human resources, etc.), its serious interest in the issue and extensive decision-making barriers amongst policy-makers of the German Bundestag. Private actors in German prostitution policy are also strongly interested in co-governing the field. However, they are less organized and decision-making barriers amongst policy-makers are lower facilitating public governance. In 2001, the first government coalition between Social Democrats and the Green party abandoned the legal tradition of stigmatizing prostitution as an “immoral” activity and recognized the offer of sexual services as a “regular” profession. Despite this paradigmatic shift, however, many legal terms remained vague due to serious conflicts amongst political parties (Euchner 2014). In consequence until recently, street-level bureaucrats and private actors, such as organizations by and for sex-workers as well as representatives of the sex industry, negotiated and formulated concrete implementation guidelines in so-called “round tables” (e.g., registration guidelines for prostitutes and sex establishments, health checks etc.). Dortmund, Berlin or Frankfurt are pioneering cities where we find close cooperation and broad agreement on policy solutions between public bureaucrats, police, and private actors. Especially, organizations by and for sex-workers gained visibility and organizational capacity in the last decade, strengthening their standing as a serious expert for policy-formulation in the implementation face.
In sum, non-legitimate private actors are able to co-govern morality policies in Germany under certain conditions. This picture is not limited to the German case only. We find similar patterns of private governance in many other countries (e.g., Italy, France) (Engeli and Rothmayr 2015: 54). In consequence, we have to think about whether we want non-legitimate actors to govern fundamental moral issues. And if not, what kind of institutional procedures require adjustments in order to facilitate clear-cut decisions on morality issues.
In theoretical terms, this study adds to the morality policy literature by showing that policy change is not only a question of scope, timing and direction but also one of the types of governing actors. By focusing on this novel dimension, we point to a new spectrum of factors that drive the regulatory variance across morality policies and time. Future research should continue to analyse morality policy change not only from the classical perspective of state interventionism but also from a governance perspective. This allows us to understand regulation in legal grey zones, which are typical for morally loaded policies. Similarly, the research on private governance would profit from the examination of additional morality policies in two ways: first, a novel set of private actors will find attention; and, second, such studies would advance the theoretical debate on issue complexity and legal vagueness and its impact on private actors’ engagement.
Eva-Maria Euchner and Caroline Preidel’s Journal of Public Policy article ‘When morality policies meet governance: private governance as response to value-driven conflicts’ is available here free of charge until the end of 2017.