Walter R. SchluepWas ist Wirtschaftsrecht?

Walter R. Schluep, Was ist Wirtschaftsrecht?, in: Festschrift für Walther Hug  zum 70. Geburtstag, 14. April 1968, S. 25 ff.

Background

This article was published in 1968 as a contribution to the commemorative publication (“Festschrift”) for Walther Hug, on the occasion of his seventieth birthday.

Summary

In this essay, Prof. Dr. Walter R. Schluep discusses the concept, purpose and method of business law.

Prof. Schluep begins with the historical aspects of business law. He deliberates on the development of economic life from ancient to modern times. Initially, he leaves one with the impression that business law as a “legal regulation of freedom (and therefore private law) and (or) the fulfillment of administrative tasks by the state (and administrative law) in the field of economy” can be clearly classified and understood. This notion, however, is relativized in a subsequent section of the essay in which he points out that there is a lack of a comprehensive scientific understanding of the terminology. This is demonstrated by using illustrations of the legal-/ normative doctrine and showing that they have different definitions and views of the notion of “business law”. Prof. Schluep not only addresses German language countries but also includes ideas on economic law shared in other countries.

Prof. Schluep contends that business law can be understood as economic law or the law of the economy. The economic law can be described as a set of legal norms that set themselves apart from ordinary (non-economic) standards. The law of the economy is the sum of legal norms that organize a specific sector, known as the economy in our culture. Prof. Schluep comments on both interpretations and remarks that business law is not economic law because a distinction between economic and non-economic law is lacking: By contrast, business law is the law of the economy, whereas in comparison to property law, the “economy” is to be understood as a concrete object. Here it comes to light that even the term “economy” is not uniformly defined. However, it is consistently understood that economy is the place where economic activity takes place. Thus, according to Prof. Schluep, business law can be described as law that regulates the economic activity.

The following sections of the essay deal with the structure and the characteristics of business law: Business law is a type of coordinating law, which dictates a behavior in order to use scarce resources as appropriately and fairly as possible. The characteristics are functionality (business law must be understood as having a completely integrated function), institutionalism (business law builds on the pre-legal context of the meaning of economic activity) and technicality (business law as a right of co-ordination of economic activity). The economic constitution forms the basis for this behavior and is a fundamental political decision of the co-ordination system.

In the last two chapters of the essay, Prof. Schluep elaborates on the different variations of business law and draws a distinction between the planned economy and the private autonomy. Furthermore, the position of business law in the legal system is analyzed. Business law creates a functional connection of standards, which deal, at the same time, with both the coordination and the subordination problem of the economy. For Prof. Schluep, the main problem in the system is the question of how the legal coordination materializes in light of the possibilities for structuring.

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You can find a scan (PDF) of the original text here: Schluep Walter R. – Was ist Wirtschaftsrecht