Disembedding the history of the Commons from the history of the Modern Administrative State. Associations syndicales (Water Boards) between « administrative domestication » and « social law »

The fate of the Associations syndicales (Water Boards) invites us to write another history of the tension between social plurality and centralised power at the turn of the 19th and 20th centuries. They directly question the way in which the collective was conceived after the Revolution. I show how Maurice Hauriou, in his famous commentary on Conseil d’État Arrest for the Association syndicale of Gignac Canal, in 1899, cannot conceive of these unions outside of a binary world opposing the collective and the public, the economy and politics. Thirty years later, Georges Gurvitch saw in these Associations syndicales the expression of a spontaneous « Social Right » (Droit social), resulting from the normative creativity of society, but « annexed by the State ». This judgment by Gurvitch was formulated in 1932, at the end of an evolution of these Associations syndicales which would have confirmed their « administrative domestication » – announced by Hauriou in 1899. My research shows that these collective organisations were not so much « hybrid » institutions, on the borderline between the public and the private, as collective organisations that did not allow themselves to be enclosed in this binary partition, either on the side of private contractual logic or on the side of a public right. These institutions have precisely shaken up this division that is being consolidated by the state order between the private and the public. I call for disembedding the history of these Commons from the history of the Modern Administrative State, which has precisely summoned the Associations syndicales to switch either to the side of the civil and the contractual, or to the side of the public and the administrative. In short, I want to restore here the heterogeneity of a collective life that can be reduced neither to private law coordination nor to public law.