Walter R. Schluep, Über Funktionalität im Wirtschaftsrecht, in: Wal-der/Jaag/Zobl (Hrsg.), Aspekte des Wirtschaftsrechts. Festgabe zum Schweizerischen Juristentag 1994, S. 139 ff.
The essay “Über Funktionalität im Wirtschaftsrecht” by Walter Schluep is found in a commemorative publication (“Festschrift”), which was created to celebrate the 1994 Swiss Jurists’ Day. The commemorative publication was issued by the faculty of law of the University of Zurich and was devoted to different aspects of economic law. The Swiss Jurists Association (SJV) has had the honor of performing an in-depth analysis of current legal topics of fundamental importance by holding an annual Jurists’ Day for over 150 years. When the Jurists’ Day is conducted in a university town, it is part of the tradition that the respective law faculty presents a commemorative publication as a special welcome gift.
Prof. Dr. Walter Schluep’s contribution to the commemorative publication (“Festschrift”) of the Schweizerischer Juristentag 1994 (the annual meeting of the Swiss Lawyers Association) deals with the individual terms of functionality / function and attempts to contextualize these concepts in the area of business law.
Functionality or function, as Prof. Schluep demonstrates, can be understood in different ways. Thus, the first paragraphs illustrate possible perspectives of function in different sciences. In business law, functionality aims at investigating what legal norms can contribute to the organization of the economy. The systematics and characteristics of business law are also discussed as well as the fact that functionality is one of its core principles.
The next part of the paper shows the effect that functionality in economic law has when the jurisprudence is dealing with economic law. The text deals more specifically with functional legislation and the concepts of functional interpretation and functional gap filling. The functional legislation encompasses, on one hand, economic constitutional law, which maintains fundamental decisions for the economic order; on the other hand, it also encompasses the follow-up economic law, which the economic constitution, being the basic legal order of economic activity, has to institutionalize and organize.
In a brief look backwards and forwards, Prof. Schluep summarizes that the functional relationship of economic matters not only segregates the discipline of business law, but aids the legislator, as well as the legal practitioner, in resolving difficult issues.
You can find a scan (PDF) of the original text here: Schluep Walter R. – Über Funktionalität im Wirtschaftsrecht