Thematic Field II: Law and Economy (2018-2020)

The perspective based on “law as culture” decidedly explores the cultural ideas and forces which are effective in the development of norms and regulatory systems in the world’s regional cultures. According to this perspective, it is not possible to conduct social science research into the normative and (in terms of societal solidarity resources and Durkheim’s consideration of the binding nature of agreements) emotive foundations and limits of economic activity without taking into account legal, political and religious requirements. In this context, “law as culture” enters into a complex process of interaction with the economic sphere, since law cannot be analysed solely from the perspective of constraints on rational economic activity. At the same time, the economy cannot be understood simply as a system of payment streams either. Instead, it has its own symbolic and ritual reality, and specific spheres and times of economic activity (from banking temples to virtual stock exchanges). It would appear far more useful when taking an ideal view of economic cultures to recall religious interpretations of activities and the unintended structural consequences of these interpretations.
The clash between different sub-rationales already indicates a range of questions concerning the differentiation or interdependence between law and the economy. For example, when we consider the legitimate extension of market logic and wish to view law as the demarcation of an unrestrained market legality, then it becomes evident that the market readiness of goods and values is inconceivable outside of a civilising context. The prohibition on charging interest in the Jewish and Islamic discourse on business ethics is a classic example. Should it be possible to use money to jump queues? Should it be possible to buy doctor’s appointments? Should we trade in blood, human germ cells and organs? Should the fall in the value of securities be monetised? Remedies and the standardisation of demarcation are integrated into cultural contexts which need to be deciphered in the light of the coding of a given differentiation programme within a particular society. For instance, there is cultural and historical variation in ideas about the extent to which the law should (or is permitted to) regulate the economic sphere, as is becoming apparent in the current debate on the legitimacy of arbitration, which could emerge alongside genuine state legal institutions. Major differences can already be seen here when comparing the stances of the United States and Germany, with the discussion about the TTIP free trade agreement having raised long-term awareness of this issue.
Last but not least, the asynchronicities in the legal regimentation and containment of economic processes point directly to the significance of human rights. Human rights compliance has taken on a new dimension in international economic law with regard to international corporations, for example, through codes of conduct and state monitoring agencies (corporate social responsibility). (Neo-)classic instruments of international private law are increasingly being used for enforcement purposes, with norms that protect or realise human rights being qualified as internationally binding (mandatory provisions, lois de police) and in need of perpetual observation by a national or transnational court, regardless of the applicable law. The barriers of the ordre public are used to prevent the enforcement of state or arbitrational rulings that undermine these standards. There are also other more subtle management instruments. Party autonomy is strengthened as an embodiment of the freedom of the individual guaranteed by human rights legislation, but also limited in order to protect third parties. Global companies are required not only to comply with their own standards in terms of environmental and species conservation, and the prohibition of child labour and corruption, but also to require their contractors and subcontractors around the world to comply with these standards.
Economic constraints (such as the conditional nature of financial assistance from the International Monetary Fund and the euro states) and developments in international trade law are interpreted as a threat to social standards. Conversely, the permissible appeal to public morals in global trade law serves as a vehicle for the protection of concepts of (legal) cultures and, by extension, a plurality of legal cultures. Minority rights for indigenous communities, for example, introduce a considerable shift in political and economic participation with regard to the extraction of natural resources. For its part, the debate surrounding the protection of intellectual property rights revolves not least around issues with the trade-off between competing scope for individually autonomous action, which have long ceased to be a topic that can be discussed independently of culturally coloured and correspondingly varied concepts such as ownership and authorship (as well as freedom and autonomy).
One of the key functions of governance in market regulations ranges from the definition of the rules of exchange to the creation and guarantee of currencies. The classic liberal figures of individual autonomy and freedom of contract may work from the assumption of the abstract and formal equality of the parties and of a treaty-making institution which initially only needs to generate recognition among the parties involved. But even under conditions of fundamental inequality, forms of treaties arise which force their own recognition because they are based on an asymmetry of the parties. Even if they infringe on fundamental fairness norms and a sense of justice as a result, a failure to sign them can result in exclusion from entire areas of life (we only need consider the general terms and conditions of the major IT service providers, for instance). Accordingly, one of the thematic fields to be developed is the issue of how formal, horizontal contract law can achieve validity at global level, beyond validity cultures based on the classic concept of the nation state. The question of the adherence of transnational corporations (some of which have a monopoly-like position) to national and alternative legislative norms is no less important too. Where legal regulations have been perceived as obstructions to global trade, companies and corporations have increasingly created their own binding norms by concluding agreements under private law. These norms are integrated into an institutional network of non-governmental arbitration courts and quasi-legislative bodies. This creates a paradoxical self-validation of the agreements (Gunther Teubner) on the one hand and competition between public and private legislative and jurisprudential authorities on the other.