The Normativity of Law in Law and Economics

Péter Cserne, Universität Hamburg

Abstract

This paper is about some theoretical and methodological problems of law and economics. I will use game theoretical insights to answer the question, relevant both for law and economics and legal philosophy, how should a social scientific analysis of law account for the normativity of law (the non-instrumental reasons for rule-following) while retaining the observer’s (explanatory or descriptive) perspective. The goal is to offer a constructive critique of both traditional law and economics scholarship and mainstream analytical legal philosophy in this respect. I will try to find out what EAL has to do with the “internal aspect of law”, i.e. the fact or the claim that law provides specific reasons for action, in order to successfully challenge mainstream legal theory.