No CrossRef data available.
Article contents
Economic Power: a Productive Concept for the Law?
Published online by Cambridge University Press: 17 February 2009
Extract
Anyone approaching the phenomenon of power sets out by searching for definitions or rather formulae so as to somehow make the phenomenon tangible and graspable. In more recent publications, and by the way not only those of the German speaking community, it is Max Weber who is most frequently quoted as defining power as the chance for imposing one's own will even against opposition. At the same time, he described the term ‘power’ as sociologically amorphous, i.e. without form or structure. This characterisation left many unsatisfied, and so people have been looking for statements that could provide the term with a certain ‘form’ after all.
- Type
- Research Article
- Information
- European Business Organization Law Review (EBOR) , Volume 2 , Issue 3-4 , September 2001 , pp. 723 - 738
- Copyright
- Copyright © T.M.C. Asser Press and the Authors 2001
References
1 Power as Dispositionsbegriff in Carnap's sense see Holm, K., 21 Kölner Zeitschrift für Soziologie und Sozialpsychologie (1969) 269.Google Scholar
2 See also the overviews with further references, as there were, for example, Dahl, R. A., in: 12 International Encylopedia of the Social Sciences (1968) 405Google Scholar; Luhmann, N., “Klassische Theorie der Macht: Kritik ihrer Prämissen”, 16 Zeitschrift fär Politik (1969) 149Google Scholar; Lichtblau, K., in: 5 Historisches Wörterbuch der Philosophie (1980) 604Google Scholar; Karl, Sandner, Prozesse der Macht: zur Entstehung, Stabilisierung und Veränderung der Macht von Akteuren in Unternehmen (Berlin: Springer 1990)Google Scholar; Kersting, W., “Drei Theorien der Macht”, 13 Analyse & Kritik (1991) 134CrossRefGoogle Scholar; Kühn, R., in: Gerhard Göhler u.a., Institution – Macht – Repräsentation: wofür politische Institutionen stehen und wie sie wirken (Baden-Baden: Nomos 1997) 181Google Scholar; Peter, Imbusch (ed.), Macht und Herrschaft: sozialwissenschaftliche Konzeptionen und Theorien (Opladen: Leske & Budrich 1998)Google Scholar. From older writings: Richard, Dolberg, Theorie der Macht: die Macht als soziale Grundtatsache und als Elementarbegriff der Wirtschaftswissenschaften (Wien: Peyer 1934).Google Scholar
3 On the aspect of costs see especially Harsanyi, J.C., 7 Behavioral Science (1962) 67, 81.CrossRefGoogle Scholar
4 M's ‘costs’ might be much higher than N's: The delinquent threatens to bring a charge against his little aid; a reward tends to be disproportionately high.
5 If ‘anyway’ is based on the realisation of power of a third party (M2), the reciprocal reference from M1 to M2 or vice versa cannot of course be to Ns disadvantage.
6 However, as far as I can tell, Russell was not the first. Rather, this analogy can already be found in Dolberg's preface, supra n. 2.
7 Luhmann, N., Macht, 2nd ed. (Stuttgart: Enke 1988).Google Scholar
8 Cf. Francesca, Rigotti, Die Macht und ihre Metaphern (Frankfurt: Campus 1994) p. 183.Google Scholar
9 In the sense of the papers by Bachrach, / Baratz, in the American Political Science Review (1962) and (1963).Google Scholar
10 Depending on the quality of this orientation we might also be in the sphere of setting values and goals.
11 Substitutes – as far as they cause N higher costs (in the sense of perceived disadvantages) – must also be classified as second-rate. The same is true for the alternative of withdrawing (exit).
12 Threats also function in the sense of causality (yet not that of intention) if N out of sheer defiance decides to take the exact opposite action, even though it might not be the alternative he would have normally chosen.
13 Even merely watching a third party being exposed to the realisation of power can cause anticipation in N. If we were to play with quantifications, then we could work out the sum total of M's power from the willingness of people to anticipate and the frequency of anticipation.
14 The prototype of a power relation renouncing its realisation is the dissimulatio in canon law.
15 Unless it was M who caused N's mistake.
16 A short catalogue of intentional power exertion is contained in the so-called ‘Wucherparagraph’ (clause on profiteering) contained in the German Civil Code (§138 para. 2): ‘A legal transaction is particularly void when a person takes advantage of the distressed situation, inexperience, lack of judgmental ability, or grave weakness of will of another to obtain the grant, or promise, of pecuniary advantages for himself or a third party that are obviously disproportionate to the performances given in return.’
17 Admittedly, their visibility is reduced with temporal distance. They become hazy or fray out so to speak.
18 Does it even make sense to talk about causality, when the number of people N has risen into anonymity, but every person N has a disadvantage that is immeasurably small? However, even this situation might have to be considered in a normative manner.
19 We would have to deal with the question of causality separately for each concept of power, the discursive or communicative one, the co-operative or participative one, etc.
20 Yet the terms are not restricted to this; for example, institutions in the sense of systems of rules can form another link. Sometimes, though, a certain idleness in analysis seems to have played a role (not to mention political connotations).
21 Do we also have a problem of justice when no yield was achieved, even though one might have done so? What rate of overcoming lethargy does justice demand?
22 As an example for a mirror image we might mention the power of the help- and asset-less, where compassion plays a role.
23 For the sake of completeness, or rather repetition, we should point out that every N can turn into M when he is caught in a sequence of causalities. Also, when people speak of practical constraints that require the exertion of power – whereby M is merely an instrument or an execution officer – we have to do with the complexity of problems surrounding causality.
24 An example is that ‘it costs me a great effort’, e.g. due to ethical or moral considerations. ‘Rules of prudence’ (Klugheitsregeln) that M abides by are also costs on his part.
25 The phenomenon of the power of small steps or creeping power needs to be distinguished here; normative questions that are similar to the above mentioned minimal disadvantage of many Ns, could present themselves here.
26 Naturally, the extinction of one power relation can lead to the strengthening of others as is illustrated by the company that has managed to get rid of all of its competitors and now abuses the power of its monopoly towards its customers and suppliers.
27 Creating ‘consensus’ is a similar phenomenon of ‘preserving’ power.
28 We could also classify actions that prepare the decision of whether or not to make use of more ‘forceful’ means, e.g. the inspection or hearing, as being ‘soft’.
29 According to some authors, we can no longer talk about a power relation once N has internalised the norms of the law into his sphere of values and goals, since – no matter what – N will choose that action that M seems to be causing in accordance with the law. We could then say, that abiding to the law allows no alternatives.
30 In our context we can leave aside the simultaneously emerging question about the positivity or transpositivity of the law.
31 Many disciplines try to deal with the question of how, historically, we are to imagine the evolution of law; the most naive approach seems to be the ethnological-comparative one. The philosophers have tried to make a theoretical virtue out of a historical necessity: this is how the theory of social contract evolved.
32 Examples: conviction of the state as a defendant by a court; or disputes of governmental organs before the constitutional court.
33 See supra n. 29.
34 Schneider, Hans K./ Watrin, Ch. (eds.), Macht und ökonomisches Gesetz (Schr. d. Vereins f. Sozialpolitik N.F. 74. Berlin: Duncker & Humblot 1972)Google Scholar. Among older publication see Richard Dolberg, Theorie der Macht, supra n. 2, with further references.
35 Remember the Reichskaligesetz of 1910. The courts had legalised monopolies and cartels by setting only immorality (Sittenwidrigkeit) as a limit to their activity (§§ 138, 826 BGB). For further information cf. Nörr, , Die Leiden des Privatrechts (Tübingen: Mohr 1994) ch. 1.Google Scholar
36 Were the law to be resolved in economic theory's – pulsating – states of equilibrium, then nothing would stop legal terminology, methodology and theory from vanishing away.
37 So, for example, if the smallest job supply was faced with a very large demand, one could literally pay employees a pittance far below the minimal living income, as long as those starved to death are replaceable, i.e. as long as the balance has not been achieved. Thus, strictly speaking in terms of economics, it is only in the long term that paying a pittance cannot be maintained. But law, of course, must concern itself equally with short-term matters.
38 If the focus is set on the jeopardising of the state and its economic order, then ‘economic power’ has frequently been replaced by ‘private power’ (private here being completely pejorative).
39 Where some ordoliberals, as is also the case with other theories by the way, consider law as being a frame condition, thus being expelled to the edges of the ‘data’, the jurist does not feel concerned any longer, and he moves on as he is destined to.
40 We could also do without this term from the viewpoint of competitorial terminologies; cf. Erich, Hoppmann, Marktmacht und Wettbewerb (Tübingen: Mohr 1977).Google Scholar
41 For other suggestions made after 1945 on making the term “economic power” usable, cf. (cursorily) Nörr, , Die Republik der Wirtschaft (Tübingen: Mohr 1999) ch. 8.Google Scholar
42 This would break up and segment the way in which both sides, M and N, are embedded in chains of precedent and subsequent power relations – the cascades of power, so to speak.
43 Actions of social organisations (Verbandsklagen) could be included here.
44 In the latter case, the character of ‘well-understood interest’ of N appears, which in extreme cases leads to his enforced happiness.
45 From this, one has to distinguish the situation in which a diversifying ‘carrier of power’, e.g. an enterprise, takes on the role of M regarding one product, but that of N regarding another (towards suppliers, customers, competitors).
46 An example with remuneration: an employer's right of direction; an example without remuneration: majorising the minority in company law (no remuneration on entering, but possibly when leaving).
47 If we briefly take a look at the instruments of power realisation, a ‘classic’ device is the threat. It is tolerated or legalised by the law unless the threat contravenes it. This means that, in its details, law needs to be examined point by point to check whether a given threat is illegal or not (the law only deals with unlawful threats, § 123 BGB, § 240 StGB).
48 Of course, all factors contributing to the formation of law are included, particularly the courts and not only legislation.
49 As an example cf. Eric, Homburger, Recht und private Wirtschaftsmacht (Zürich: Schulthess 1993).Google Scholar