As we have discussed above, we are conceptualising TCL as the field of law governing commodity activities in order to gain a better understanding of the applicable framework and to ultimately assess its effectiveness. This approach may raise questions regarding the legitimacy of our undertaking: Is it necessary to conceptualise a newfield of law?
A look in the literature reveals that conceptualisingfields of law is a compara-tively‘free’discipline, meaning that there is little to no dogmatic guidance on why or how it should be performed. In fact, some nineteenth century scholars have argued that the search for the‘true scientific division of the legal field’is tantamount to attempting to find the philosopher’s stone because just like this item steeped in legend—it does not exist.1Based on this observation, Mariner states that it‘appears that the division of legal principles into fields of law remains a function of the purpose for which division is useful.’2Thus, within the literature one can discern roughly four different—strongly interlinked—purposes for conceptualisations of newfields of law, namelyaccessibility,coherence,effectivenessandpolitical cause.
1Mariner (2009), p. 80 quoting Bishop (1868), p. 221:‘Still, as a matter of practical convenience, we may divide off the legalfield in various ways, as may best suit the particular purpose of the division, or our tastes.’
2Mariner (2009), p. 81 goes on to state:‘Or perhaps it’s just a matter of taste’.
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M. E. Oehl,Sustainable Commodity Use, EYIEL Monographs - Studies in European and International Economic Law 21,https://doi.org/10.1007/978-3-030-89496-2_3
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Sherwin sees the purpose of a classification scheme in its function to‘provide a vocabulary and grammar that can make law moreaccessibleand understandable to those who must use and apply it. . .’3 Mariner insofar highlights how frequent treatises were in nineteenth century US scholarship that arranged norms according to the subject matter they were applicable to e.g., the law of highways, of railways, and of telegraphs.4 The fact that repeatedly in the past scholars have sought to conceptualisefields of law in such manner may well be understood as an indication of the usefulness of even these, conceptually speaking, rather simple approaches.
Even in instances where such taxonomy may lack any apparentdoctrinal value, it may still render the rules, which apply to the respective subject matterclearerand more comprehensible. One of the aims of conceptualising TCL is to display the current legal framework of GCG, including its deficits and regulatory gaps.5Thus, it aims to render the inter- and transnational norms regulating the commodity sector moreaccessiblefor academics, practitioners, government officials, and other stake-holders dealing with the regulation of commodity activities.
As Aagaard puts it,‘[t]axonomy inevitably and inherently is a quest for coher-ence’.6In respect to a legalfield, he defines‘coherence as the strength, simplicity, and predominance of thefield’s patterns’.7Ruger speaks of the‘dramatic potential for explanation and illumination’, which coherence entails.8 Given the ‘unified, predictable and rational’ account of the law that it promises,9 it facilitates the study and application of the respective legalfield,10 thus contributing also to the purpose of accessibility discussed above. Yet, Ruger also questions the‘orthodox conception’of coherence, which he defines as consisting of
3Sherwin (2008), p. 119; emphasis added. Cf. Tai (2015), p. 123.
4Mariner (2009), p. 79.
5It shall be mentioned here that this endeavour is not entirely new. In fact, a group of German researchers in the 1970s launched a 10-year research project on‘International Commodity Law’ (Internationales Rohstoffrecht), which was aimed at analysing the legal frameworks applicable to various commodity activity-related challenges, including investment andfiscal law regime. The project was led by the hypothesis ‘daß die systematische und detaillierte Erforschung eines wichtigen Teilbereichs des Internationalen Wirtschaftsrechts gehaltvollere Aussagen über diesen zunehmend wichtigeren Rechtsbereich erlauben könnte als die bis dahin herrschende Diskussion über allgemeine Thesen und Gegenthesen zur“Neuen Weltwirtschafsordnung”[]’, Mertens and Spindler (1989), p. 526; on the results of the research project overall, cf. Jaenicke et al.
(1977–1986); likewise resulting from this research project and a corresponding conference volume, notably taking atransnationalperspective Buxbaum (1988).
6Aagaard (2010), p. 229. Emphasis added.
7Aagaard (2010), p. 231.
8Ruger (2008), p. 96; cf. Aagaard (2010), p. 230.
9Saiman (2007), p. 511; cf. Aagaard (2010), p. 230.
10Aagaard (2010), p. 230 notes additionally that the‘archetypal common law fields’, which constitute the centralfields of study in the respective legal education‘are often characterized by strongly coherent, even essentialist, models’.
(1) a reductionist focus on internal logic; (2) a focus on essential legal form; (3) an emphasis on linear historical development; and (4) a high level of institutional specification and centralization.11
He emphasises that the dominant conception of coherence is itself the result of methodological choices that have been made by legal scholars in the past century.
Therefore, he advocates for relativising the conventional account of coherence in favour of a moreflexible understanding.12Moreover, the‘quest for coherence’may also cause disadvantages in view of thefinal taxonomy of the field. It can namely lead to oversimplification i.e., the creation of an‘appearance of coherence’where no coherence actually exists.13Furthermore, given that incoherence illustrates a lack of consensus among lawmakers, the attempt to create coherence through ‘internal logic’ may only cause the law-making institutions to push the coherence to other areas of law.14Finally, it may also discourage experimentation in law-making.15
The aim of coherence often corresponds to the purpose of effectiveness.
According to Ruhl and Salzmann, the creation of a newfield of law can ‘ensure effectiveness by reorienting laws and policies in a more productive structure.’16 Sherwin states that classifications can‘make[] it easier for lawyers to argue effec-tively about the normative aspects of law, for judges to explain their decisions, and for actors to coordinate their activities in response to law.’17 In the event that specialised technical or deep knowledge arises, creating a newfield of law, instead of‘forc[ing] an existingfield to morph itself to absorb the topic whole’, may further contribute to regulatory efficiency—and thus ultimately effectiveness.18 Our conceptualisation of TCL seeks to inspire subsequent international scholarship as well as regulatory endeavours, which aim to elaborate the existing regulatory framework. It therefore is intended to ultimately foster theeffectivenessof the law regulating the commodity sector. This holds true in regard to all transnational, domestic or any other norms, which together form the overall legal framework of particularlytransnational commodity activities. In this connection, the standards that TCL comprises could later be integrated in e.g. domestic legal orders. Instead of
‘forcing’ establishedfields of international law to ‘absorb the topic whole’, TCL adverts to alternative regulatory options. The organisational framework we provide
11Ruger (2008), p. 629.
12Ruger (2008), p. 648 concludes that‘[h]ealth law unquestionably falls short of many of the attributes offield coherence that comprise the conventional account, and in my view will continue to do so given the basic attributes of thefield. But to say as much ought not to also implicate a normative judgment about thefield’s intelligibility or ultimate status within the legal academy.’
13Aagaard (2010), p. 233.
14Aagaard (2010), p. 235.
15Aagaard (2010), p. 235.
16Ruhl and Salzman (2013), p. 989.
17Sherwin (2008), p. 119; cf. Tai (2015), p. 123.
18Ruhl and Salzman (2013), p. 989.
3.1 The Purpose of TCL 45
may serve as a guide in logically arranging the norms of TCL, thus fostering its coherenceand therefore further contributing to its effectiveness.
The call for redefining the canonically acceptedfields of law in the interest of a greater degree of effectiveness, can also be witnessed in Meessen’s work. In his view, instead of maintaining the traditional arrangement of norms according to,first, the level of sources (international, supranational, transnational, domestic law), and second to their legal tradition (e.g. HR or environmental law), we should more strongly emphasise thefactual social behaviourthat these norms are governing in our classifications of the law.19Meessen, referring to economic law, thus advocates for the conceptualisation offields of law, which correspond to day-to-day issues in human interactions, such as franchise law or the law governing the closing times of businesses.20 On an ‘intermediary level’, he proposes ‘globalized market law’, which ought to comprise trade liberalisation law, transnational capital and labour law, transnational investment and establishment law, as well as domestic competi-tion, privatisation and deregulation laws.21He concludes that forfields of law to be more relevant—and thus effective—they need to be designed with sufficient, for one, reference to the factual problem at hand and,22 for the other, closeness to reality.23
With Meessen, the taxonomer deems the conceptualisation of thisfield of law around the specific factual context, policy trade-offs, interests and legal doctrine of commodity activities as a legal taxonomy, which meets these requirements. The factual governance challenges that arise in the commodity sector occur in connection with a distinguishable social behaviour—commodity activity. Whereas these chal-lenges involve various subject matters that are being addressed by separate branches of international law, such as Human Rights, international environmental law, world trade law and international investment law, none of these branches exhibit sufficient closeness to the factual context, interests and policy trade-offs of the commodity sector. Moreover, they are lacking the necessary coherence and consistency to effectively address policy trade-offs. Whereas the establishedfields of international
19Meessen (2001).
20Meessen (2001), pp. 44–45.
21Meessen (2001), pp. 43–44 also points to the fact that the need to be aware of the legal traditions and dogmatics underlying the norms, which we are reconceptualising, still persists; corresponding methodology in e.g., the interpretation of international agreements on the one hand and EU law on the other, needs to be respected. Restructuring legalfields therefore not only requires a rigorous research of the relevant legal sources but also needs to be mindful of the dogmatic origins of the respective rules. Meessen (2001), p. 47 in this connection alludes to the necessity of cultivating
‘international and comparative legal theory’—a legal theory that is mindful of and therefore reconciles comparative, international, supranational, and transnational law and which needs to be
‘prefixed’to newly arranged legalfields. Elaborating such legal theory constitutes a challenge for legal scholarship, which Meessen (2001), p. 47 describes as‘enormous’.
22Meessen (2001), p. 44:‘Recht muss daher so ausgelegt und angewandt werden, dass es seine Fähigkeit zur Regelung und Steuerung sozialen Verhaltens durch seinen inhaltlichen Problembezug unter Beweis stellt.’
23Meessen (2001), p. 47.
law may serve to adequately balancesomeof these trade-offs, they fail to do so with regard to others.24TCL is intended tofill this gap by emphasising the importance of introducing commodity-directed rules. Insofar, while the conceptualisation of TCL is primarilydescriptivein nature in that it portrays direct as well as unintentional TCL,25the taxonomy presented here naturally also bears aprescriptiveelement.26 As such, for the purposes of effectiveness, our conceptualisation of TCL will not be limited to a display of the current legal framework, but—again in the tradition of prescriptive legal taxonomies—provide suggestions for creating greater coherence of the law applicable to commodity activities.27
Finally, the conceptualisation of a new field of law can ‘provide a forceful political statement’ regarding the importance of the respective area.28 Ruhl and Salzmann highlight how several social movements were accompanied or eventually resulted in the emergence of new fields of law, such as environmental law or LGBTIQ law, a current example being the one of disaster law.29 Likewise, Tannenbaum emphasises the activist origins of animal law.30 Understood in this way, the creation of a newfield of law is meant to pave the way towards greater academic, practical and political attention to the particular topic at hand. In acade-mia, apart from the intensified scholarly analysis of the issue it is supposed to generate, the conceptualisation is particularly also meant to have an educational effect—through the integration of respective courses in law school curricula, future generations of lawyers shall be trained to think of thefield as an important, legitimate area of practice.31
Again, political reasons for the conceptualisation of afield of law often cross-fertilise other purposes, such as accessibility, effectiveness and coherence. It may be true that to some degree, every definition of a legalfield bears political motives.
Whereas they may typically be less dominant with regard tofields, which exhibit conventional doctrinal coherence, such as torts or contract law, the emergence of otherfields is more clearly lead by political motives.32Yet, this does not imply that one can infer a lack of methodological legitimacy—or coherence—from a strong political motivation or vice versa. To the contrary, where the political will to regulate is particularly strong, it is more likely that lawmakers are going to establish a comprehensive, coherent legal framework.
24On direct and unintentional TCL as well as the regulatory gaps that remain, cf. Chap.4below.
25On this distinction, see Sect.4.2below.
26Cf. Aagaard (2010), p. 240.
27Cf. in detail Chap.5below.
28Ruhl and Salzman (2013), p. 988. Emphasis added.
29Ruhl and Salzman (2013), p. 988.
30Tannenbaum (2013), pp. 899–906.
31Ruhl and Salzman (2013), p. 988.
32Cf. however on the origins of e.g. the German Civil Code, which naturally need to be perceived also against the backdrop of conflicting political interests, Riegert (1970), pp. 54–58.
3.1 The Purpose of TCL 47
Beyond the examples already mentioned above, many other legalfields have been established in the past roughly half century for more or less political reasons.33In the 1960s, international investment law was developed out of a set of norms dealing with the so-called ‘diplomatic protection’ of the properties of nationals living and/or exercising business activities abroad.34Initially due to efforts by mainly Western governments, a net of bilateral investment treaties was created, which in turn emerged to a properfield of international law. Other examples on a rather domestic level, yet with relevance globally, include the law of internet technology or cyberlaw,35which seeks to increase scholarly, political and overall attention to the effects of IT on the law and vice versa;36as well as consumer protection law, which, given systemic information and economic asymmetries between consumers and producer companies seeks to implement specific protection mechanisms in favour of the former.37
A further example is the one of International Development Law (IDL).38 The reasons for its creation were expressly‘politically committed’. IDL is supposed to challenge classical international law in order ‘to work towards the reduction of inequalities and the realization of a new order.’39This new order would measure all norms and institutions of international law according to their contribution to the alleviation of poverty and underdevelopment.40 As such, the‘particular merit’of IDL is said to relate to the introduction of ‘the economic factor and level of development into the legal analysis and evaluation of the relations between States.’41 As a consequence, IDL seeks to shift the focus away from a purely‘formalistic’ analysis of the norms in place and towards a perception, which appreciates the power
33On a potential ‘law of globalization’ Koh (2007), p. 572: ‘While sometimes derided as the proverbial“Law of the Horse,”one of the analytic challenges facing the law of globalization is asking whether there is“in fact a distinctive, emerging law of which topics like human rights and international business transaction are a part.”’
34Cf. e.g. Vandevelde (2005), pp. 158–161; comprehensively Hobe (2015).
35Cf. already the famous debate on its nature as a‘law of the horse’spurred by the remarks by Easterbrook (1996).
36Cf. Lessig (1999), explicitly replying to Easterbrook (1996).
37Cf. Rösler (2007), pp. 497501; on the origins of EU consumer protection law, cf. Weatherill (2013), pp. 5–15.
38It is, in fact, debated whether IDL constitutes a separate branch of IL. While some categorise it either as a sub-branch of public international law or international economic law, others speak of its
‘singularity’given its distinct objective, Mahiou (2013), para. 8.
39Mahiou (2013), para. 9; cf. in this respect also the TWAIL movement e.g., the strong stance by Mutua and Anghie (2000). Both schools of thought can be perceived in context with the struggle for a NIEO, cf. Sect.2.2.3above.
40Mahiou (2013), para. 12.
41Mahiou (2013), para. 13. Furthermore, IDL also challenges international legal scholarship, which it deems to be‘only neutral in appearance’since the discussion and analysis of international norms would automatically entail a‘siding with the status quo’given that these rules have generally been elaborated primarily by the dominant centre and therefore imposed onto a dominated periphery, Mahiou (2013), para. 9.
imbalances between states with more and those with less influence on the design of international norms:
The question of whether international law succeeds in creating a balance between the formal legal equality of all States and the de facto inequality of their relative power is fully addressed by international development law, which takes the equity factor into account while endeavouring to give content to an overall strategy of development.42
The taxonomer does not seek to obscure that the overall purpose of our updated conceptualisation of TCL is, in the tradition of i.a. IDL, and in view of the pivotal challenge of GCG to establish a functional commodity sector,43 also ‘politically committed’. TCL shall translate the rapidly intensifying efforts in national, suprana-tional, and global governance to subject commodity activities to a more vigorous regulatory framework into concrete implications for international legal doctrine.44 Moreover, it intends to inspire academics as well as future generations of lawyers to consider TCL as an important area of research and practice.45