Metaphysical justification for an economic constitution? Franz Böhm and the concept of natural law

Abstract

The paper analyzes references to the concept of natural law in the work of legal scholar Franz Böhm (1895–1977), one of the founders of German ordoliberalism and a pioneer in working at the intersection of law and economics. Böhm was particularly interested in the economic constitution, the framework of legal rules that shape economic transactions. It is shown that Böhm’s work on this subject relates to natural law in two distinct ways. Firstly, from classical political economy, he adopts the argument that there are patterns in human behavior that allow for the establishment of a self-organizing mechanism that governs economic activity, a social order “bestowed by nature” or “ordo”. Secondly, given the distinction in jurisprudence between legal positivists and natural law theorists, the paper argues that Böhm should be viewed as the latter because he maintains that legal norms need to correspond to justice in order to be valid law. Despite his status as a natural law theorist, Böhm contends that legal systems must not be derived from metaphysical sources.