Marc Amstutz, Evolutorisches Wirtschaftsrecht. Vorstudien zum Recht und seiner Methoden in den Diskurskollisionen der Marktgesellschaft, Baden-Baden 2001.
The text at hand refers to the first two sections of Prof. Dr. Marc Amstutz’s book, entitled “Evolutorisches Wirtschaftsrecht” (“Evolutionary Economic Law”).
The first section deals with an economic law dialogue; the “state” and the “economy” are two separate analytical spheres, each having its own patterns. In this regard, economic law deals with the conflict between an individual and collective approach in society as well as with the issue of the combination of interventionism and self-creating processes. Amstutz considers the relation of public activity and market economy as an inherent necessity. In his opinion, the reason why there is an effort to create economic law is based on the uncoordinated accumulation of different provisions; the only thing these provisions have in common is that they are all vital for the evolutionary success of the market society. Further, he states that economic law is considered as the key for the lack of a market social “ius supra iura”. Amstutz also refers to Polyani’s theories: “Economic law embodies the search for meta rules, which consist of establishing the reciprocal relationship of those rules that make the market economy a socially sustainable society strategy”.
In the second section, Prof. Amstutz discusses the appropriateness of Schluep’s theory of the market-based principle of proportionality in order to articulate and create the indicated “ius supra iuris”. Schluep’s understanding of the term “economic law” is also the starting point of Prof. Amstutz’s reasoning: “Economic law is the sum of legal provisions that are entrusted with – in an economy based on the division of labor – the organization of the economic activity of the economic citizens in a human way”. Thereby, Amstutz differentiates between economic constitutional law and economic execution law (“Wirtschaftsfolgerecht”). Subsequently, Amstutz describes how the market-based principle of proportionality derives from the constitutional order of market economy. He also states that the values, which define the society, should be sustained as “flexible systems”. Furthermore, Amstutz points out that the market-based principle of proportionality also has aspects of the classic constitutional term of proportionality; namely the characteristics of suitability, necessity and conservation.
In the following two subchapters, Amstutz analyzes additional theories to describe the “ius supra iuris”. Thereby, he considers v. Hayek’s theory on abstract order and Teubner’s construction of a legally separate “ordre public”.
You can find a scan (PDF) of the original text here: Amstutz Marc – Evolutorisches Wirtschaftsrecht