Carl Baudenbacher, 1. Chapter: Entwicklung, Begriff und Wesen des Wirtschaftsrechts, in: Baudenbacher Carl (Hrsg.), Wirtschafts-, schuld- und verfahrensrechtliche Grundprobleme der allgemeinen Geschäftsbedingungen, Habilitationsschrift an der rechts- und staatswissenschaftlichen Fakultät der Universität Zürich, Zürich 1983, 74-87
Carl Baudenbacher, born 1 September 1947 in Basel, Switzerland, is a Swiss attorney at law. From 1987 to 2013, he was engaged as a professor of civil, commercial and business law at the University of St.Gallen and, since 2003, as president of the EFTA Court in Luxembourg. Professor Baudenbacher has written more than 40 books and over 200 articles in the following fields of law: European and international Law, contract law, labor and employment law, competition law, antitrust law, corporate law, intellectual property law, arbitration and international Courts.
The writing that is presented here, “Entwicklung, Begriff und Wesen des Wirtschaftsrechts”, opened the first part, “Wirtschaftsrechtstheoretische Grundlagen”, of his book, “Wirtschafts-, schuld- und verfahrensrechtliche Grundprobleme der allgemeinen Geschäftsbedingungen”, which also was his Habilitation thesis at the Law and Political Sciences Faculty of the University of Zurich in 1983.
In this essay, Prof. Dr. Carl Baudenbacher gives a short overview of the development of economic law as a separate legal field and describes its concept and nature in general terms.
In the opinion of Prof. Baudenbacher, the development of modern economic law as a separate legal field begins with the emerging of the liberal economy in the 19th century.The fundament for this was provided by the “classical economics” of Adam Smith and David Ricardo. Liberal economic law is characterized by the separation of state and society and is based on two cornerstones: the public economic freedom and private autonomy, out of which freedom of contract (which is limited only by public morality) is derived from substantive law.Dispositive law secures the case that parties have not regulated all essential contractual points.In procedural law, this has been reflected in the disposition and negotiation principles.The author comes to the conclusion that liberal economic law – with the market as the dominant supervisor – is equivalent to pure private law. The historical and ideological background therefore builds the theories of laissez-faire liberalism.
The transition from an economic policy of the liberal free trade to a policy of liberal intervention began in Switzerland and in Germany after the depression of the seventies of the 19th century.During the First World War and the postwar years, the developing modern economic law is characterized by the successive conversion of economics from the societal to the State jurisdiction. Thereby, the need arises for a modern economic law that is directly dependent upon real economic development. The post Second World War odoliberal economic law, coming after the Second World War, led to the opinion that private individuals should be protected not only against the state, but also from other private power, which was reflected in the adoption of antitrust laws. In more recent times, the point of view that even the private law itself has a task of social formation has led to the development of societal-related private law.
The author further adds the point of view that a sharp normative distinction between economic law and other legal fields has failed, and concludes that economic law can only be defined typologically with the help of a flexible system.As system elements, he refers to the independent alignment of common good, the controlling character, the overall economic reference and the functional approach. He considers that economic law may be viewed as an independent legal system approach. Its content could be described as the law, which codifies the social subsystem economy and its processes.The main material of economic law includes the civil law, which regulates the exchange of services and the allocation and control over economic goods and procedural law.
Economic law is a political right, which tries to create an effective economic system that aims at the realization of common political goals, in actual fact justice and thereby the settling of the disputes. Next to economic goals, it should also realize, in particular, societal and state policy objectives. The author sees the dual nature of economic law in that, on the one hand, it aims to preserve and promote the overall economic system and, on the other hand, it also aims at the realization of personal justice. Between these goals, conflicts are conceivable, but the personal aspect must take precedence because the ultimate meaning of all the law is to realize the personal justice.
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