The path dependence of the common law, from a Roman law perspectiveXV Annual Conference of the Latin American and Caribbean Law and Economics Association (2011)
AbstractMost law and economics scholarship commends the United States’ legal system as a model of efficiency despite the existence of a vast body of earlier literature which is highly critical of the Anglo-American system of common law. For example, Jeremy Bentham's scathing Commentaries on Blackstone's Commentaries on the Laws of England were highly influential in the modernizing of the common law during the 19th and 20th centuries. This paper agrees with mainstream law and economics literature in arguing that the common law is efficient, at least in so far as the common law is a system of private law. It surpasses a legal system based on public law. However, in economics, efficiency is a relative concept. The common law’s shortfalls are revealed when it is compared with Roman law. This paper highlights some of the faults of the United States’ legal system by comparing it to Roman Law. It demonstrates that the path dependence of the United States’ legal system (i.e. the dead-weight of its historical roots) continue to impose substantial costs on society, despite extensive modernization in the 19th and 20th centuries. I stop short of arguing, as Bentham did, for codification in common law jurisdictions or for the replacement of common law with Roman law rules. Nonetheless, I revisit the debate about the efficiency of the common law in law and economics in a new light. This paper concludes that Latin American legal scholars, legislators and judges must modernize their legal systems without holding up the Anglo-American common law as a model. In the same vein, I argue that common lawyers must meet the 21st century challenge of continuing to modernize their legal system by using materials from their own legal tradition; they should avoid legal transplants from the civil law.
Publication DateAugust 3, 2011
Citation InformationJuan Javier del Granado. "The path dependence of the common law, from a Roman law perspective" XV Annual Conference of the Latin American and Caribbean Law and Economics Association (2011)
Available at: http://works.bepress.com/juan_javier_del_granado/66/