Prof. Walter A. Stoffel, Wirtschaftsrecht als Rechtszweig?, in:Theoretische Fragen des Wirtschaftsrechts, Beiträge der Ost-Westkonferenz über theoretische Fragen des Wirtschaftsrechtes in Siófok von 1985, Budapest 1986, p. 155-180.
In this article, Prof. Dr. Walter A. Prof. Stoffel deals with the legal doctrine of economic law. He points out that economic law is better understood as a method than as a legal area.
In a first step, Prof. Stoffel addresses the object of regulation of economic law and maintains that economic law is not limited to specific legal areas; rather, it frames relevant provisions from all legal areas. From a dogmatic point of view, economic law has to be understood in the framework of a division of the Swisslegal system into private law and public law. The starting point of the distinction between these two legal areas is provided by the theory of subordination. In the opinion of the author, economic law is located in an area of tension between this division.
The article then goes on to address the historical description of the dichotomy of private and public law and states that the separation of these two legal fields originates in Roman law. He further notes that, meanwhile, the separation is still visible by means of the division of the court system. Prof. Stoffel maintains that private law contained only areas of life which were successfully excluded from the reach of power of the absolutistic state. Thus, this objective restriction of private law is somewhat historical and random. Prof. Stoffel indicates, in this respect, the difficulties of a classification of economic law since the matter of regulation of economic law has, on the one hand, not been clearly determined and, on the other hand, is (in some respect) new.
Prof. Stoffel further maintains that private law has been scientifically processed whereby the technical aspects of law seceded from the aim of law. This occurred via a technical transition, which was accomplished by the following means: formalization of the legal positions, moralization of the legal system and decentralization of law. As a result of these three means and its systematic use, private law has become a method-oriented ruling technique. Prof. Stoffel is of the opinion that the means of formalization and moralization has rationalized the application of law and led to more predictability.
Prof. Stoffel subsequently defines “economic law”; in the process of doing so, he draws upon the proposals of Schluep and Baudenbacher. Thus, economic law means the law which standardizes the coordination of economics. He points out that economic law is about an “economic coordination system”;the former has the function of legally facilitating and protecting the latter. Economic law must also serve a specific purpose. In this respect, the author points to the (particularly in the USA) pronounced economic theory of law and emphasizes that economic law is an excellent instrument for the comprehension of private law and therefore also for its criticism and further education.
Prof. Stoffel is of the opinion that private law must be interpreted with regard to the economic coordination system. Economic law postulates such a functionalistic application of private law. In his opinion, economic law is a method and not a legal field. Hence, the application technique is no longer the conceptual deduction but rather the economic coordination system. The author thereby indicates that economic law necessitates an intense engagement with the factual background. It is further maintained that the characteristics of economic law and its analysis with the factual backgroundcontrasts with the judicial practice: he reveals this by reference to some practical examples.
The author calls for the inclusion of the aims of economic law into commercial law, contract law and competition law - in a methodological sense. He takes the position that it should “awaken a new understanding of the factualness by lawyers”. He fears that failing to do so will result in “a renewed merging of the areas of law, as in the feudalism, but with a reversed technocratic sign: a new absolutism”.
You can find a scan (PDF) of the original text here: Walter Stoffel – Theoretische Fragen des Wirtschaftsrechts