Retour sur l'analyse substantielle en droit économique

The authors take a fresh look at Gérard Farjat?s method of construing and applying economic law by way of a ?substantive analysis?, which constitutes the hallmark of the Nice School?s approach to this field of the law. In essence, by this method Farjat sought to overcome the ?formalistic? application of statutory, in particular of codified law, which is typical of traditional French civil law thinking. Substantive analysis of economic law takes a more realistic, contextual view of the entire set of facts the law is intended to govern, stresses that these facts are reshaped by the law, but also that conversely the facts reshape the law. As a result, the law itself becomes subject to a critical appraisal, which is based on an interdisciplinary (economic, sociological, and societal) evaluation. The problem then is to properly deal with the ?dissolution? of established concepts, which the substantive analysis entails, as well as with the blurring of the lines of demarcation. The authors discuss these difficulties against the backdrop of modern legal theory as it has evolved over the last decades.