REGULACIÓN DE RIESGOS: Una doble aproximación a partir del Análisis Económico del Derecho

Daniel Monroy, Universidad Externado de Colombia

Abstract

The risks problem has been analyzed from the traditional point of view of the Economic Analysis of Law, as well as from the perspectives of tort law and contract law. While in this last one, contracts are considered to function as a mechanism to risks transfer, in the first one it is accepted that the law works like a mechanism for the individuals to internalize the associated costs of damages that are not considered by contracts; by this same token, where the function of contracts in the risks issue ends, the function of tort law begins. However, whereas the contracts are “invariably incomplete” and thus the risk cannot be perfectly transferred through them, the tort law, and in general terms the risks issues, tend to be as well “invariably incomplete”. All these ideas generate a series of economic consequences that tend to be missed from the lawmaker’s view.

From the Behavioral Law & Economics, the reason of the imperfection of contracts and rules can be better understood as an effect of the bounded rationality that affects the individuals, including lawmakers; the acceptance of this statement, offers a new and promising view to begin the construction of true solutions. At the same time, the negative effects of the bounded rationality on the rule’s addressees are not an unknown circumstance for lawmakers; even though the most common strategy to face this situation is to adopt rules that suppress the individual’s decisions making and in that way, to reach the proposed rule targets. Based on the critiques on the traditional strategy of insulation, a novel alternative that does not isolate the individuals from the decision making process and that allows the society to address legal objectives, called the “debiasing through law”, is taking place.