"Economic Constitution": On the Roots of a Legal Concept

Abstract

Our world is in abundance of most different kinds of legal systems, but none of them is as thoroughly imbued with constitutional ideas and categories as the American law. Thus, the dedication of an article dealing with a concept of constitutional law to an American judge and scholar seems not inappropriate. The contribution focuses on a legal term of specifically continental European thinking, the concept of “Wirtschaftsverfassung” or, translated literally, of “economic constitution.” I will try to explain on which premises and under which circumstances this legal term has been developed during the first decades of our century. Concepts often share the fate of human thoughts in general: they appear for the first time in certain contexts, they journey through time and space, they flourish in one place and sink in another; for long periods they may be missing yet they come to life again all of a sudden in a new context. The concept of the economic constitution is such a case, too. It can be found already in the Physiocrats, but no fixed place is assigned to it; every now and then it has been used by authors of the 19th century but without any chance of gaining a foothold; in our century, however, it secures the status of a central concept for legal doctrine and theory of constitution, at least among the German jurists. So, unlike many other juridical concepts, this one does not root in a common European heritage like ancient Roman law or the law of the medieval Church; and with regard to the political and juridical ideas of the Natural Law School and the Enlightenment the continuities are so sparse and faint that it is hardly possible to trace the lines back over the centuries.