Construcción del índice del capital humano

When I invited Lawrence Busch to contribute to the European Food Law Association (EFLA) conference on private food law, he remarked something to the effect of ‘finally the lawyers are joining in the discussion’. For over a decade important developments take place in the field of food governance based on private law instruments, with hardly any serious participation of lawyers to the debate. Busch himself is a social scientist responsible for ground breaking empirical research on – in his vocabulary – grades and standards.1

The current book may well be the first book discussing the length and breadth of private food law for a law audience. It certainly is the first to present ‘private food law’ as an area of law in its own right. The expression ‘law audience’ here is to be taken in a broad sense. The world of food law, from the food business perspective also known as regulatory affairs, covers a wider audience than lawyers per se. Many come to the field from a food science background and pick up the legal part on the job.

While this book addresses the world of food law, its content is not strictly limited to legal scholarship but also includes empirical research and social science analyses of interest to the food law audience.2

This book is not a conference book in the customary meaning of the word. Its creation has been inspired by the presentations and discussions on 16 and 17 September 2010 at the 18th _{biannual scientific congress of the European Food Law} Association (EFLA) held in Amsterdam.3 _{The topic of this congress was ‘Private} food law; Non-regulatory dimensions of food law’. Some of the contributions to this

1 _{See for example: Busch, L., 1997. Grades and standards in the social construction of safe food. Invited} paper presented at a conference on The Social Construction of Safe Food and the Norwegian Technical University in Trondheim, Norway, April 1997; Reardon, T., Codron, J.-M., Busch, L., Bingen, J. and Harris, C., 1999. Global change in agrifood grades and standards: agribusiness strategic responses in developing countries. International Food and Agribusiness Management Review 2: 421-435; and most recently, Busch, L., 2010. Standards, law, and governance. Journal of Rural Social Sciences 25(3): 56-78. Generally see http://cs3.msu.edu/people/pubs/busch-lawrence/. See for a special issue of the Journal of Rural Social Sciences focused entirely on the work he and his team have done on standards: http://

www.ag.auburn.edu/auxiliary/srsa/pages/TOCs/JRSS%20vol25-3.htm.

2 _{See in particular Chapter 2 by Busch Lawrence, Chapter 7 by Otto Hospes, Chapter 8 by Margret Will,} Chapter 12 by Tetty Havinga and Chapter 16 by Maria Litjens, Harry Bremmers and Bernd van der Meulen. 3 _{On the congress programme and on EFLA in general see www.efla-aeda.org.}

book are written by speakers at the congress elaborating on their contribution.4 We have however completed the picture by inviting other scholars to update and rework previous publications5 _{or write new ones}6 _{in order to cover as much} as is possible at this moment in time of the emerging field of private food law. Finally we added the two most important policy documents from the European Commission as Appendices.

1.2 Private food law

1.2.1 Private

The label ‘private food law’ is meant to cover all applications to the food sector of rules and instruments generally labelled ‘private’ or ‘civil’. These are rules found in civil codes and related legislation or case law. We have chosen the word ‘private’ to avoid possible confusion due to the double meaning of the word ‘civil’. It can be used as synonymous to private to indicate the area of law that is not public law encompassing topics such as property, liability and contract. In comparative law, however, the word ‘civil law’ is used to indicate the continental European (Romano-Germanic) family of legal systems as opposed the Anglo-Saxon ‘common law’ family, encompassing both public and private law. Private food law, however, surpasses the borders between civil law and common law systems in the world. Private food law may include topics such as (product) liability law where the relevant rules are in the civil code or related legislation. Indeed the contribution of Van der Veer goes into the specific legislative arrangements for distance sales as they apply to online purchases of food products. Also competition law has its place in this book.7 _{It is public law ‘par excellence’ but an area mainly concerned with} the regulation of private agreements and in this sense it may set a boundary to the expansion of private food law. Mainly, however, this book focuses on the elaborate structures of rules known as, self-regulation, private (voluntary) standards, codes of conduct or certification schemes. These structures have been created by private actors using private law instruments to regulate conduct of food businesses. The regulated businesses may be parties to contractual relations but also businesses further upstream the food chain and geographically remote. In this sense private food law is food law privately made.

4 _{In particular Chapter 3 by myself, Chapter 2 by Lawrence Busch, Chapter 5 by Spencer Henson and} John Humphrey, Chapter 6 by Marinus Huige, Chapter 8 by Margaret Will, Chapter 9 by Ferdinando Albisinni, Chapter 10 by Alessandro Arton, Chapter 13 Hanspeter Schmidt, Chapter 15 by Irene Scholten-Verheijenand Chapter 18 by Nicole Coutrelis.

5 _{Chapter 4 by Theo Appelhof, Chapter 12 by Tetty Havinga, Chapter 16 by Maria Litjens, Harry} Bremmers and myself and Chapter 17 by Fabian Stancke.

6 _{Chapter 7 by Otto Hospes, Chapter 11 by Esther Brons-Stikkelbroeck and Chapter 14 by Lomme Van} der Veer.

7 _{See Chapter 16 by Maria Litjens, Harry Bremmers, Chapter 17 by Fabian Stancke and myself and} Chapter 18 by Nicole Coutrelis as well as Appendix 1.

Private food law

1.2.2 Law

At the EFLA congress’ discussions the existence of such a thing as ‘private food law’ was contested. It was argued that businesses creating private standards never set out to create ‘law’ but merely to ensure compliance with regulatory food safety requirements. Partly this discussion relates to another language issue. In English language the word ‘law’ may refer to a specific piece of legislation. Obviously there does not exist any text deserving the label ‘the private food law’ in a similar way as in public law EU Regulation 178/2002 does deserve the name ‘the general food law’. However, the word ‘law’ may also be used to refer to an entire rules based system or to an area of scholarly attention among lawyers.8

I believe that, indeed, in the food sector rules based systems emerge governing national and international food chains that are made by chain partners on the basis of private law instruments. This book may contribute to proving this point. And yes, I believe this to be an area worthy of scholarly attention. The research attention and the labels used by scholars to describe their findings not necessarily coincide with intentions and wordings chosen by the stakeholders subject to scrutiny.

Probably furthest in the direction of identifying private food law as a system of law, goes the chapter of Lawrence Busch, labelling private schemes in the form of tripartite standfards regimes ‘quasi states’. After all is not a state (even quasi) very much more than ‘just’ a system of law? Not as explicit but also quite strong are Ferdinando Albisinni’s labels: ‘private regulatory law’ and ‘collective food law’. The label ‘private food law’ is ambitious in that it designates private sector regulation of the food chain as an entire area in its own right, not just a detail within some other context.9 _{It is modest in that it does not take a qualifying position. An} expression such as ‘self-regulation’ creates an image of equality, mutuality and an inward direction in the sense that stakeholders organise their own behaviour. This label would be less appropriate for arguments that private food law in fact is used by dominant players in the chain to impose de facto duties upon dependent players. Such argument is indeed made by several authors in this book. For the same reason a label such as ‘private voluntary standards’ – while used by some of the authors in this book – may from the point of view of others be considered misleading in that the voluntariness may – as is argued be some authors in this book – be limited to legal theory but not apply to economic reality. The label ‘private food law’ is neutral in all these respects.

8 _{In other languages the two meanings have distinct words, for example in Latin ‘lex’ and ‘ius’ respectively.} 9 _{In this sense the current book distinguishes itself from books discussing topics such as certification.} While certification without a doubt is a core issue in private food, it is not a label claiming to cover a branch of law.

1.3 Cover

As law is often symbolised by Justitia10 _{holding her paraphernalia: sword, blindfold} and scales (or just the scales), private law is often represented by a hand shake (Figure 1.1).

The hand shake symbolises that private relations are self-made on the basis of equality and mutuality. For the cover of this book we have chosen a picture - gracefully provided by the European Union – that combines the two notions: law represented by Justitia, but self-made by private actors represented by the hand shake.