Schanze, Erich --- "Linking Extra-legal Codes to Law: The Role of International Standards and Other Off-the-track Regimes" [2011] ELECD 251; in Zumbansen, Peer; Calliess, Gralf-Peter (eds), "Law, Economics and Evolutionary Theory" (Edward Elgar Publishing, 2011)

Book Title: Law, Economics and Evolutionary Theory

Editor(s): Zumbansen, Peer; Calliess, Gralf-Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448230

Section: Chapter 15

Section Title: Linking Extra-legal Codes to Law: The Role of International Standards and Other Off-the-track Regimes

Author(s): Schanze, Erich

Number of pages: 18

Extract:

15. Linking extra-legal codes to law: the role of
international standards and other off-the-
rack regimes*
Erich Schanze

1. INTRODUCTION

In the famous article on the basic design of legal rules Calabresi and Melamed refer to
Monet's cycle of paintings of the Cathedral of Rouen.1 The circumspection of a monu-
mental object in the turn of the sunlight displays the whole cosmos of forms and colors.
For the equally famous eighteen haystacks Monet is quoted to have intended `to fix a
genuine impression of a certain aspect of nature'. The `nature' of the relation of law and
the associated extra-legal norms such as standards or `codified' `off-the-rack' practices
is rather vague. An exploration by circumspection may be an adequate approach in this
matter.
Let us first inspect a number of views concerning the relevance of extra-legal norms for
law. Then we will explore a variety of `linkage mechanisms' between law and extra-legal
norms, notably national and international standards, which can be found in a number of
technical contexts of law ­ so-called `reference norms'.2 All reference norms are styled
from a legal centrist perspective, that of a judge who has to determine whether and
to what extent a specific extra-legal norm can be `included' in the legal considerations
for reaching an equitable result in a given conflict. This legal centrist perspective starts
from the premise that extra-legal norms are relevant only to the extent that a legal norm
...