Péter Cserne

Objectivity and the Law’s Assumptions About Human Behaviour

Péter Cserne — Fri, 23 Dec 2011 14:28:59 PST

This paper analyses a hitherto neglected aspect of the law’s objectivity: the epistemic and methodological character of the law’s assumptions about human behaviour. Taking H.L.A. Hart's views on legal epistemology as a starting point, I suggest that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, philosophical theories of earlier ages and scientific knowledge. The task of the legal theorist is to provide a rational and critical foundation for these doctrines. Legal philosophy thus does not only contribute to law’s objectivity through conceptual clarification but also involves the legal scholars into substantive empirical and moral argumentation. I also discuss the reasons for and challenges to integrating empirical knowledge on human behaviour into legal policy and legal doctrines and point out the limits set by institutional, systemic and normative features of the law to this integration. In consequence, the law’s assumptions about personhood and human agency may come into conflict with empirical research in psychology and neurosciences and its claims of objectivity. Such a conflict then shows that these assumptions are counterfactual.

Legal and Political Theory in the Post-National Age

Péter Cserne — Sat, 23 Jul 2011 00:52:00 PDT

In the last decades, regional and global integration processes have made the traditional state-centred view of law less and less obvious. Recent discussions revolve around how to conceptually comprehend, critically reflect on and reasonably control these new developments in the global legal arena. The essays in this volume, written by young Central and Eastern European legal theorists and political scientists, contribute to ongoing discussions in our post-national era. The chapters include conceptual analyses, historical and comparative examples, as well as normative discussions in legal theory, ethics, moral philosophy, constitutional theory, EU law and international relations. This is the first volume of the series "Central and Eastern European Forum for Legal, Political, and Social Theory Yearbooks", presenting selected papers of a conference held in Budapest, May 2010.

Consequence-based arguments in legal reasoning: a jurisprudential preface to law and economics

Péter Cserne — Fri, 08 Oct 2010 02:23:06 PDT

One of the persistent problems surrounding the discipline of law and economics is the role of economic arguments in legal reasoning. The problem has been extensively discussed in the legal literature but has not been ultimately solved. This paper is a contribution to this discussion. The argument goes as follows. First, I argue that insights from law and economics, to the extent that they claim to be directly relevant for legal reasoning, should carry a jurisprudential preface that states that this very relevance is limited and conditional. Second, I introduce the concept of consequence-based reasoning and show that the typical normative claims of law and economics based on economic efficiency can be interpreted as consequence-based arguments of a special kind. Third, in the analytical core of the paper, the conceivability, feasibility and desirability of the judicial appreciation of general social consequences of legal decisions is considered. Referring to the philosophical, jurisprudential and institutional dimensions of the issue I argue that in a modern constitutional democracy the scope of consequence-based judicial reasoning is limited mainly by the expertise of courts. A more general implication of this analysis is that the impact of law and economics scholarship on law can only be understood through a close look at legal reasoning in general and consequence-based arguments in particular.

Az Alkotmánybíróság határozata az ingatlanokat terhelő vagyonadóról. A jogbiztonság követelménye az adótörvényekkel szemben [The Hungarian Constitutional Court on Real Estate Tax: Legal Certainty in Tax Law]

Péter Cserne — Fri, 08 Oct 2010 02:06:36 PDT

This is comment on a ruling of the Hungarian Constitutional Court on the rule-of-law requirements for taxing property.

Policy Arguments before Courts: Identifying and Evaluating Consequence-Based Judicial Reasoning

Péter Cserne — Wed, 04 Aug 2010 04:28:10 PDT

This paper is a modest contribution to a long lasting discussion in legal theory and touches on two broad and related questions: what is and what ought to be the role of consequence-based arguments in legal reasoning. My argument will be presented in two parts: is and ought. Starting with the is question, I define what consequence-based arguments are and discuss their role in the canon of acceptable arguments of various legal cultures. Basically, this is an exercise in comparative law or legal mapping, although a radically incomplete one. I shall also briefly discuss whether we can observe convergence in this respect. In the ought part, I enter the normative discourse by addressing some philosophical, jurisprudential and pragmatic arguments for and against consequence-based legal reasoning.

On the Necessity of Necessity: An Economic Analysis of Contracts Concluded in a Situation of Need

Péter Cserne et al. — Wed, 04 Aug 2010 04:21:29 PDT

An important characteristic of necessity cases is that ex ante and sometimes even ex post both parties have an interest in upholding the contract. From an economic perspective, the policy objective of regulating necessity is to give optimal incentives for precaution, search and rescue. These incentive effects have been widely discussed in the law and economics literature, the received view being that price control based on the costs of the rescue plus a small reward provides optimal incentives. In this paper we argue that the received view is unwarranted. Our model suggests that in many cases the socially efficient contract price is higher than the rescue costs. To be sure, due to serious information problems the practical implementation of this theoretical optimum is much more difficult than the cost-plus price setting supported by the received view. While the policy implications of our model are rather tentative we suggest that the judicial costs of estimating policy variables should be taken into account. A second objective of this paper is to argue for an economic interpretation of the term ‘necessity’ in contract law. Instead of various substantive criteria suggested in the philosophical literature we suggest defining the term by working backwards from the possible remedies. The excuse of necessity should be available for contracting parties when, all things considered, a judicial control (modification) of the contract price is desirable. Necessity is thus “defined” by what courts can and should do.

Szerződésértelmezés hermeneutika és jogpolitika között. A contra proferentem szabály [Contract Interpretation Between Hermeneutics and Policy: The Contra Proferentem Rule]

Péter Cserne — Fri, 16 Apr 2010 05:52:58 PDT

This paper discusses why contract interpretation is substantially different from the interpretation of literary works and illustrates the argument with the analysis of the contra proferentem rule. It is a substantially revised version of my ‘Policy considerations in contract interpretation: the contra proferentem rule from a comparative law and economics perspective’ (2009)

A közteherviselés (70/I. §) [The duty to contribute to public revenues]

Péter Cserne — Fri, 23 Oct 2009 03:07:33 PDT

This chapter discusses the duty to contribute to public revenues, i.e. the constitutional power to tax, as regulated in the Constitution of the Republic of Hungary and interpreted by the Hungarian Constitutional Court. It was published in the hitherto most extensive doctrinal commentary on the Hungarian constitution (2 vols, 3008 pp.)

Duress

Péter Cserne — Fri, 23 Oct 2009 03:00:30 PDT

This chapter is to appear in Contact Law and Economics, part of the Elgar Encyclopedia of Law and Economics, 2nd ed. Its purpose is to provide an overview of the economic analyses of contractual duress. The focus is on the distinctive features of the economic perspective on the duress doctrine, as developed in the theoretical literature of law and economics. Along with the results of economic analysis, the legal background and some non-economic theories of duress are also briefly presented.

A jogosultságok konceptualizálásának és modellezésének lehetőségei a racionális döntések elméletében [Conceptualising and Modelling Rights in Rational Choice Theory]

Péter Cserne — Thu, 01 Oct 2009 10:48:06 PDT

This paper is an overview of the efforts made in rational choice theory to conceptualise and model rights. Particular emphasis is laid on the work of Amartya Sen, Robert Nozick and Robert Sugden.

Paternalism in Policy: Prospects and Limitations of an Economic Analysis

Péter Cserne — Fri, 11 Sep 2009 02:14:57 PDT

Jogelmélet jog nélkül? [Legal Theory without Law?]

Péter Cserne — Fri, 11 Sep 2009 02:10:08 PDT

Law and Morality in the Regulation of Contracts: Lessons from Ancient Rome

Péter Cserne et al. — Mon, 31 Aug 2009 07:30:51 PDT

The way we nowadays think about “immoral” contracts is based on a number of assumptions. One of these assumptions concerns the relative isolation of law and extra-legal standards. This view, however, is not new or even modern: to a large extent, it can be traced back to Roman law that has been both praised and condemned for this relative separation.

In this paper we venture into the problematic of “immoral” transactions by combining historical, doctrinal and economic analysis. Focusing on cases and doctrines in ancient Roman law, our goal is to show how Roman lawyers found reasonable answers to issues which, in spite of obvious differences in economic and cultural context, can teach some lessons for our modern understanding of contract regulation.

After a brief overview of economic analyses of law and morality and some methodological problems of the economic analysis of legal history, we turn to the historical dynamics of the Roman doctrine of immoral contracts. We reconstruct how and why the term immorality (contra bones mores) became a general clause of Roman law in a relatively short time; discuss what kind of cases were solved with reference to this clause; and analyse how this clause shows the practical rationality of Roman lawyers. Finally, we raise some substantive and methodological points where this historical case can provide insights for the economic analysis of the interactions of law and morality.

Jog, jogászat és jogtudomány hatása Weber módszertani nézeteire [The impact of law, lawyering, and jurisprudence on Weber’s methodological views]

Péter Cserne — Fri, 03 Apr 2009 06:49:19 PDT

Law and legal science have played a significant, but hitherto underestimated role in Weber's life, both professional and non-academic. Trained as a lawyer, he drew upon an existing vocabulary of legal scholarship and adapted from it, more or less implicitly a large number of conceptual and methodological tools for his sociological projects. The goal of this paper is to identify and evaluate these complex links between Weberian sociology and contemporary legal scholarship, with special emphasis on Jhering's and Jellinek's theories. (This paper is a significantly revised Hungarian version of my 2005 English language essay on Weber.)

Import, Export, and Multilateral Translation: Methodological Lessons from an Economic Analysis of Paternalism in Contract Law

Péter Cserne — Mon, 23 Jun 2008 02:14:50 PDT

In this paper I discuss the role of inter- and multidisciplinary research in jurisprudence and legal scholarship. Some general lessons are drawn from my previous research on conceptual and methodological problems of an economic approach to paternalism in contract law.

E-J. Mestmäcker: A Legal Theory without Law (Book review)

Péter Cserne — Mon, 23 Jun 2008 01:43:08 PDT

This is a book review of Ernst-Joachim Mestmäcker's A Legal Theory without Law: Ponser v. Hayek on Economic Analysis of Law (Tübingen: Mohr 2007)

Policy considerations in contract interpretation: the contra proferentem rule from a comparative law and economics perspective

Péter Cserne — Tue, 19 Feb 2008 15:58:25 PST

Deviations from the common intentions of the parties in contract interpretation is sometimes attributed to “an appetite for benefiting whichever of the parties is perceived to be in a weaker bargaining position”. In this paper I argue that there is more reasonable explanation (justification) for at least some of these deviations. The contra proferentem doctrine is an information-forcing rule that can promote optimal completeness and clarity in contracts. Whether the contract is standardized or not, other things being the same, the risk of ambiguity in contractual language should be borne by the party who could more cheaply avoid it, and that is usually the party who selected or drafted the clause rather than the party to whom it was presented. On the other hand, it is argued that interpretative presumptions are ill-suited for ambitious policy purposes.

Freedom of choice and paternalism in contract law: prospects and limits of an economic approach

Péter Cserne — Tue, 19 Feb 2008 15:28:49 PST

This is the Table of Contents of my PhD thesis, defended at Hamburg University Faculty of Law in June 2008.

A kétharmados törvények helye a magyar jogforrási hierarchiában [Qualified Majority and the Hierarchy of Sources of Law in Hungary]

Peter Cserne et al. — Tue, 10 Jul 2007 09:37:26 PDT

Kapitalizmus és szocializmus Bibó István gondolatrendszerében [István Bibó on Capitalism and Socialism]

Peter Cserne — Tue, 10 Jul 2007 09:11:14 PDT

Although István Bibó’s (1911–1979) reputation in Hungary is based on his political and historical essays, he has written much on economic and social issues as well. As an anti-speculative thinker, he formulated his views each time in the context of actual economic and social problems. Starting from the critique of modernity and a sort of elitism in the 30’s, his interest turned toward the serious deformations of Hungarian social structure, especially the situation of the agrarian population. His great private lecture on The Meaning of the Development of European Society (1971–72) treated the history of Europe from a philosophical perspective to reconstruct the tendencies toward and the Christian origins of “the humanisation of power” and to formulate the ideal of a society based on “mutual services” (a form of decentralised socialism, respecting liberal individual rights). The lecture reflects the conflict between Bibó’s long term optimism and the events of 1968 both in East and West which seemed to perpetuate the false dichotomy of American capitalism and Soviet-type socialism, with the increasing power of bureaucracies in both systems. Bibó’s purpose has been to transcend the “allegedly irreconcilable opposition” between freedom and equality on the theoretical and the institutional level as well.