Evolutionstheorie für das Recht der Marktgesellschaft

Abstract

As Marc Amstutz shows, contemporary commercial and economic law is characterised by a series of demands which are not easily compatible. To put the problem in theoretical terms: commercial law is required on the one hand to adapt itself to economic needs and circumstances and on the other hand to safeguard its inner logic and autopoiesis. Amstutz tries to escape this dilemma by the figure of »conversation-circles«, which allows subsystems to connect within certain boundaries their communications with one another. Thereby the subsystems, such as commercial law, by no means give up their autonomy which is, as Amstutz explains, due to evolutionary mechanisms: the rather firm internal order of systems is exposed to external forces and influences. The system permanently operates at the edge of chaos, a situation by which evolution is made possible. Though Amstutz’s work is a great achievement in the theoretical analysis of modern law, what remains unclear is the position of human actors. Amstutz is not successful in building the bridge between social actors and social systems. The crucial problem how »structural coupling« works is not solved. Therefore his arguments concerning the methods of jurisprudence are not entirely convincing. Recommended citation: Aschke, Manfred, Evolutionstheorie für das Recht der Marktgesellschaft. Zu Marc Amstutz, Evolutorisches Wirtschaftsrecht. Vorstudien zum Recht und seiner Methode in den Diskurskollisionen der Marktgesellschaft, in: Rechtsgeschichte - Legal History Rg 02 (2003) 25-38, online: http://dx.doi.org/10.12946/rg02/025-038