A critical study of the common law, from a law and economics perspectiveFlorida International University College of Law (2010)
AbstractUnited States legal realism survived in the later part of the 20th century in the form of two seemingly disparate jurisprudential perspectives—those of critical legal studies and law and economics. Like the original warring brothers of the Old Testament, Cain and Abel, these warring schools of legal thought in the United States fail to recognize the blood ties that unite them. They remain antagonistic (rather than open to discourse) in the 21st century. Despite the family resemblance, the rift persists because of “family problems” that have continued since their beginnings. Siblings who live in the same house learn to live with each other. Critical legal studies and law and economics failed to do that early on: critical legal studies developed at Harvard law school; law and economics developed at the University of Chicago law school. Critical legal scholars remind us that law fails to be neutral. According to these scholars, the rich and powerful use legal institutions as an instrument of oppression to maintain positions of privilege in society. On the other hand, like the self-righteous depiction of Abel in the Old Testament story, law and economics scholars pretend to be value-neutral. As self-proclaimed social scientists, these scholars conscientiously shy away from making normative, as opposed to positive, claims about the legal system. Critical legal scholars are suspicious of their goody two-shoes siblings. Most of the time, the inter-sibling squabbling between these schools has been subdued. These scholars display, at best, polite contempt for each other. Law and economics scholars are well-used to the misunderstandings that the legal academy periodically heaps upon the economic approach. Only at times does this fratricidal feud ascend into the pantheon of legendary jurisprudential barneys. The creative sap of legal realism is still flowing strong. Yet, to understand the roots of the sibling rivalry, one must go farther back than legal realism, to the organizing principles of law in Greek philosophy. Greek ideals of justice are at the heart of the sometimes violent relationship of these jurisprudential schools. Aristotle understood that different people have different conceptions of distributive justice. Aristotle also fully recognized the paradox at the heart of the concept of commutative justice. In his 11th thesis on Feuerbach, Marx makes the striking claim that “the philosophers have only interpreted the world, in various ways; the point is to change it.” Law and economics scholars must move toward critical, that is, normative, legal studies. With a newfound (perhaps postmodernist?) commitment to the plurality and incommensurability of values, these scholars must restate what, if anything, can be value-neutral about law. New theoretical advances, such as the paradigm shift from the Coase theorem to the Myerson-Satterthwaite theorem in law and economics (the move from transaction costs to information and incentive costs), may make possible a great reunion project: critical law and economics. In this paper, I discuss, critically, from a law and economics perspective, the common law: the set of rules, norms, and procedures that has guided, for about nine centuries, the legal system of England, the former British Empire, and the United States of America.
Publication DateNovember 2, 2010
Citation InformationJuan Javier del Granado. "A critical study of the common law, from a law and economics perspective" Florida International University College of Law (2010)
Available at: http://works.bepress.com/juan_javier_del_granado/60/