Peter Nobel, Wirtschaftsrecht?, in Wirtschaftsrecht in Theorie und Praxis, Festschrift für Roland von Büren, ed. Peter V. Kunz, Dorothea Herren, Thomas Cottier and René Matteotti, Basel, 2009, p. 973-992, excerpt
[Economic Law?]
a) Background
The text at hand appeared in the Festschrift for Professor Roland von Büren of the University of Bern in 2010. The text is a timely review of the role of the originally German concept of Wirtschaftsrecht (economic law) and a close look at the “traveling” of leading American concepts of law, such as the economic analysis of law, to the continent of Europe and Switzerland. The question mark in the title indicates a critical perspective on the feasibility of the creation and use of systematic definitions in law in times of dynamic and complex societal and economic developments. The Leitmotiv of the later justice of the American Supreme Court Oliver W. Holmes in the essay The Path of The Law in 1897 evokes the German theoretical concepts of Wirtschaftsrecht in Switzerland: “For the rational study of law the black–letterman may be the man of the present, but the man of the future is the man of statistics and the master of economics”.
Peter Nobel is an emeritus Professor (2010) in Private, Commercial and Economic Law at the University of St. Gallen and a Professor of Law at the University of Zurich. He is a leading attorney and has experience as a judge at the commercial court of the Canton of Zurich and as an official in the former supervisory Commission of Banks. He is a prolific writer of legal texts, organizer of academic conferences and editor-in-chief of the Schweizerische Zeitschrift für Wirtschaftsrecht (Swiss Journal on Economic Law).
b) Summary
The text of Peter Nobel opens with a reflection on the relationship between government and economics, which time and again has eluded dogmatic definitions. The primary relationship between law and economics is that the economic knowledge always relates to law because the purpose of their factual statements and observations is always to serve as the basis for the adequacy of the legal order in force.
The text describes the historical steps taken by major legal scholars in Switzerland to develop the concept of Wirtschaftsrecht (economic law). With regards to the mutually interdependent fields of law and economics, scientific analysis did not go beyond an interested and friendly coexistence. This changed substantially with the opening of academic culture to developments originating in the United States.
The development of the thinking of the major Swiss academic proponents led to a gradual merger of legal and economic considerations, particularly after the advent of functionalism. An important factor for this merger was that the economists became more and more dissatisfied with the legal developments. This in turn, according to Peter Nobel, led to an attempt for a more realistic approach, where legislation requires economic rationality as a guiding principle (Leitplanke) and that legislation should not lead to closed systems negatively influencing the constant evolutionary selection of better possibilities.
The second part of the text deals with the effects of the American law and economic movements on law. As a leading American school of thought, economic analysis of law became a full-fledged academic discipline, which in turn led to it being fully integrated into the curricula of most leading American law schools Peter Nobel refers to Judge Richard Posner’s saying that “there is no dispute that law and economics has long been and continues to be the dominant theoretical paradigm for understanding and assessing law and policy.” The text describes the method and primary goals for integrating law and economics and then analyzes the remarkable development, which led to a contested acceptance of economic analysis of law in Germany. Peter Nobel criticizes the defensive arguments to limit the effect of economic analysis of law in Europe.
Advocating a less theoretical but more pragmatic and modern approach, Nobel concludes that basic economic knowledge is essential for a lawyer; that legal positions have to be analyzed with respect to their economic feasibilities; that the free markets in a rule-based system are likely the most efficient motors of development; that pragmatism is a useful philosophy in law; and that economic freedom is the best precondition for the safeguards and the corrections of markets.