Private Law Theory

ABSTRACT
Law and Economics scholarship movement continues to be an important methodological approach to the positive and normative analysis of law since its inception in the second half of the 20th century. However, Law and Economics has been criticized on various grounds, from its over-reliance on consequentialist arguments against deontological arguments to its indifference towards the fundamental concepts of law such as the Rule of Law. This latter argument is scrutinized and further illustrated in this article. Here, we demonstrate that despite the common theoretical underpinnings between Law and Economics and the Rule of Law (I), it is argued that Law and Economics conflicts with the Rule of Law principles on three major instances, namely the Coase theorem, the theory of efficient breach of contracts and the influential rule of reason in the field of competition law and policies (II). We therefore conclude that there cannot be a practical convergence between Law and Economics and the Rule of Law at the universal level unless Law and Economics revisits some of its normative conclusions that conflict with the Rule of Law as exemplified in this article.

Portuese, Aurélien, When Law and Economics Violates the Rule of Law: Three Illustrations (September 4, 2018). Rule of Law and Anti-Corruption Center Journal, 2018.

First posted 2020-12-22 08:45:05