Economic analysis of law

from Wikipedia, the free encyclopedia

The economic analysis of law is the application of economic theories to the legal system . Statements about the effects of certain legal norms are derived from this. In a further step, the results obtained from the positive analysis are normatively assessed with the help of the efficiency concept . In addition to sociological , philosophical and philological approaches, economic analysis represents a further analysis method of law.

Terminologically, the economic analysis of law is not delimited uniformly. The spectrum ranges from definitions such as “examining the law for its economic effects” or “researching the effects of decisions and distribution consequences of legislation” to definitions according to which the economic analysis of law is based on “the understanding and appreciation of a historical, present or planned legal area taking into account economic language and models and the hypotheses based on them ” .

history

Origins

The origins of the economic analysis of law go back to the modern economic classics: Smith already described the incentive effect of laws in “An Inquiry into the Nature and Causes of the Wealth of Nations” . His contemporary Hume saw laws in a world of scarce resources as an ensemble of principles that economic agents obey in order to enable cooperation. Even Bentham studied how actors behave in the face of legislative incentives and evaluated the results according to the criterion of social welfare. However, none of these investigations led to a systematic legal analysis using economic behavioral assumptions.

First wave

Since the 19th century, specific legal considerations, which fall back on the preparatory work of the classics, have been increasing: Marx in particular criticized the prevailing view that property rights could not be influenced by natural law. His approach led to the realization that property rights are assigned to the economic and social circumstances of the individual and can therefore be changed through the (re) design of law.

Second wave

The breakthrough in research, also known as the law and economics approach , came with the “second wave” in the 1960s. The second wave was introduced by Coase's essay "The Problem of Social Cost" , which deals with the efficiency deficits of state interventions. If property rights are freely transferable and clearly assigned and there are no transaction costs, the market forces will bring about an efficient redistribution regardless of the initial allocation of resources.

The subject of economic analysis in German-speaking jurisprudence is primarily questions of civil and criminal law economics (such as the benefit of general terms and conditions or the benefit of illegal behavior compared to lawful behavior), although public law has also been included for some time .

method

Methodologically, the economic analysis of law uses the economic behavior model as an instrument for determining consequences and welfare-economic efficiency criteria as an instrument for evaluating consequences.

Consequences investigation

The economic behavior model describes a rational and selfish acting model person, the so-called homo oeconomicus . This behavioral model is rooted in neoclassics and assumes that economic agents behave rationally, are fully informed, property rights are well defined and there are no transaction costs.

Impact assessment

The main advantage of the economic behavior model is that it makes behavior predictable. Therefore, by predicting individual behavior, the consequences of the change in the law can be determined. In the next step, this change in the law will be assessed. This is done using the criterion of efficiency , whereby efficiency is usually understood to mean Pareto efficiency or efficiency in the sense of Kaldor / Hicks .

Behavioral Law and Economics

A more recent approach to the economic analysis of law looks at law from the perspective of behavioral economics , which is no longer based on an unlimitedly rational view of man. Instead, limitations of rationality ( bounded rationality ), especially due to cognitive distortions, are included in the analysis. Since the beginning of the 21st century, an important field has been the discussion about the justification and design of libertarian paternalism .

Scientific journals

Scientific findings from the topic are often in magazines Journal of Law and Economics , Journal of Law, Economics, and Organization , International Review of Law and Economics , Journal of Consumer Policy , European Journal of Risk Regulation and the European Journal of Law and Economics published .

See also

literature

  • Richard Posner: Economic Analysis of Law . 7th edition. Aspen, 2007, ISBN 978-0-7355-6354-4 .
  • Hans-Bernd Schäfer , Claus Ott : Textbook of the economic analysis of civil law . 5th edition. Springer, Berlin 2012, ISBN 978-3-642-29122-7 .
  • Georg Dietlein, Jan-Gero Alexander Hannemann, Arne Nordmeyer: Justice as a question of costs or costs as a question of justice? An introduction to the economic analysis of law . In: ZJS (Journal for Legal Studies) 2013, 163–169.
  • Markus Englerth: Behavioral Law and Economics. A critical introduction , in: Christoph Engel / Markus Englerth / Jörn Lüdemann / Indra Spiecker called Döhmann (ed.): Law and Behavior , Tübingen 2006, pp. 60 ff.
  • Kristoffel Grechenig, Martin Gelter: Divergent Evolution of Legal Thought - From American Legal Economics and German Dogmatics . In: Rabels Journal for Foreign and International Private Law (RabelsZ) 2008, 513–561.
  • Felix Müller: Economic Theory of Law . In: Buckel / Christenensen / Fischer-Lescano (eds.): New theories of law . 2nd Edition. Lucius & Lucius. 2009. pp. 351-371.
  • Kai Purnhagen: Never the Twain Shall Meet - A Critical Perspective on Cultural Limits between Internal Continental Dogmatism and Consequential Law and Economics Theory , in: Klaus Mathis (Hrsg.): Foundations of Law and Economics in Europe , Springer 2013, available at 'http : //ssrn.com/abstract=2127329 ' .
  • Wolfgang Baumann, Economics and Law - Economic Efficiency Jurisprudence, Rheinische Notarzeitschrift (RNotZ) 2007, p. 297 ff.
  • Roland Kirstein: Law and Economics in Germany . In: Bouckaert, B./de Geest, G. (eds.): Encyclopedia of Law and Economics, Vol. 1, entry No. 0330; E. Elgar, Cheltenham, 2000, 160-227.
  • Roland Kirstein: Economic Analysis of Law . In: E. Minthe (ed.): News in criminal policy. Concepts, models, evaluation; Kriminologie und Praxis , series of publications by the Kriminologische Zentralstelle, Volume 42, Wiesbaden, 2003, 49–73.
  • Roland Kirstein / Dieter Schmidtchen: Economic analysis of the law . Module no. 36 of the teaching unit “Economic Education Online - Economics in School!”, Ed. Bertelsmann Foundation and Institute for Economic Education (IÖB), University of Oldenburg, 2003.
  • John R. Commons: Legal Foundations of Capitalism , 1924.
  • Dieter Krimphove: Legal Theoretical Aspects of the "New Economic Theory of Law" , Legal Theory, 2001, 497.

Individual evidence

  1. ↑ a b Kristoffel Grechenig, Martin Gelter: Divergent evolution of legal thought - From American legal economy and German dogmatics . In: Rabels Journal for Foreign and International Private Law (RabelsZ) 2008, 513–561.
  2. ^ Coase, "The Problem of Social Cost," Journal of Law and Economics, 1960
  3. ↑ Martin Gelter, Kristoffel Grechenig: History of Law and Economics . In: Encyclopedia on Law & Economics. 2014 (forthcoming).
  4. ↑ Kristoffel Grechenig, Martin Gelter, Juristischer Diskurs und Rechtsökonomie, Journal für Rechtssppolitik (JRP) 2007, 30-41 .

Web links