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Law and Economics in the 21st Century

  • Eli M Salzberger

Abstract

Legal research and the methodology employed to analyze and evaluate the law are conducted within a paradigmatic thinking. The term “paradigm shift” was coined by Thomas Kuhn when he put forward a theory about the development of the natural sciences.1 Kuhn disputed the modernistic description of Frances Bacon who presented scientific inquiry as one of constant and accumulative progress, like a building, which is constructed stone after stone. Kuhn argued that science develops in leaps. Regular scientific research is conducted within a set of boundaries that are based on presuppositions left unquestioned by the contemporary scientific community. These boundaries were dubbed by Kuhn “a paradigm”. Scientists in their research (and in their research agenda) are trying to complete a jigsaw puzzle, where the framework of the puzzle is pre-determined by the paradigm. However, in the course of scientific research it turns out that not all pieces fit their spots, and some pieces tend to cross the set boundaries. Scientists try to force the pieces into the slots they think are meant for them. But at one focal point the framework collapses. Doubts bring about rethinking of the pre-set presuppositions. The paradigm shifts; a new paradigm is constructed, which sets new presuppositions and a new research agenda. Regular scientific research continues within the new paradigm, until that too is ripe for replacement.

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References

  1. 1.
    Thomas S. Kuhn, The Structure of Scientific Revolutions (1962).Google Scholar
  2. 3.
    Oren Gazal-Ayal’s argument according to which an important impetus for Law and Economics was the significant amounts of funds offered to research in the field, for example, by the Olin foundation, can be presented as falling in line with Kuhn’s analysis regarding the development of science. However, its not the funding which brought about the dominance of Law and Economics, but the other way around-research funding reflects the dominant paradigm of the day. See O. Gazal-Ayal, “Remarks on the Past and Future of economic Analysis”, Mechkarei Mishpat (forthcoming in Hebrew).Google Scholar
  3. 4.
    See, for example, W. M. Landes, R. A. Posner, “The Influence of Economics on Law: A Quantitative Study”, 36 J.L. & ECON. 385, (1993). The authors find that the number of citations of Law and Economics papers in law journal grew from 283 in 1976–1980, to 2227 in 1986–1990 (p. 398).CrossRefGoogle Scholar
  4. 5.
    The Return of Grand Theory in Human Sciences (Quentin Skinner ed. 1985).Google Scholar
  5. 6.
    Alfred Marshall, Principles of Economics 2 (1890). A similar definition is ofered by contemporary economist, George Stigler, The Theory of Price (1952) p.1.Google Scholar
  6. 7.
    Linoel C. Robbins, Essay on the Nature and Significance of Economic Science (1932) p. 15.Google Scholar
  7. 8.
    Ibid, p.16.Google Scholar
  8. 9.
    In this direction see also Ronald Coase citing John Maynard Keynes: “Theory of economics... is a method rather than a doctrine, an apparatus of the mind, a technique of thinking which helps its possessor to draw correct conclusions” in Ronald Coase, The New Intuitional Economics, 88 The American economic review (1998) 72 (Papers and proceedings of the hundred and tenth annual meeting of the American economic association), p. 73.Google Scholar
  9. 10.
    See also Robert D. Cooter, “Law and the Imperialism of Economics: An Introduction to the Economic Analysis of Law and a Review of the Major Books”, 29 UCLA L. Rev. (1982) 1260.Google Scholar
  10. 11.
    For a concise overview of concept of rationality and rational behavior see Amartya Sen. “Rational Behaviour” in The New Palgrave Dictionary of Economics (Eatwell, Milgate and Newman eds. 1995).Google Scholar
  11. 12.
    Oren Gazal-Ayal mentions this factor as one of the reasons for the Law and Economics success, connected also to the easier path of Law and Economics scholars to obtain research grants, which, according to Gazal-Ayal is a prime motivation for scholars to specialize in the field. See O. Gazal-Ayal, supra note 4.Google Scholar
  12. 13.
    For the definition of these criteria and the connection between them see Jules L. Coleman, Markets, Morals and the Law (1988), Ch. 4.Google Scholar
  13. 14.
    Richard A. Posner, “Utilitarianism, Economics and Legal Theory”, 8 J. Legal Stud. (1979) 103.CrossRefGoogle Scholar
  14. 15.
    For a slightly different description see: Francesco Parisi, “Positive, Normative and Functional Schools in Law and Economics”, 18 Eur. J.L. & Econ. (2004) 259.Google Scholar
  15. 16.
    One of the pioneering work is Herbert A. Simon, Models of Man (1957), But the great impetus to the field were the works of Daniel Kahenman (Economics Nobel laureate) and Amos Tversky.Google Scholar
  16. 17.
    E. g. Daniel Kahenman and Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 Econometrica (1979) 263.CrossRefGoogle Scholar
  17. 18.
    Daniel Kahenman, Jack Knettsch and Richard Thaler, Anomalies: The Endowment Effect, Loss Aversion and Status Que Bias, 5 Journal of Economics Perspectives (1991) 193.Google Scholar
  18. 19.
    See, for example, Robert Ellickson, Order Without Law: How Neighbors Settle Disputes (1991) Eric Posner, Law and Social Norms (2000).Google Scholar
  19. 20.
    Ronald Coase, “Coase on Posner on Coase”, 149 J. Institutional & Theoretical Econ. (1993) 196; Ronald Coase, “Law and Economics at Chicago”, 36 J.L. & Econ. (1993) 239; Richard A. Posner, “The New Institutional Economics Meets Law and Economics”, 149 J. Institutional & Theoretical Econ. (1993) 73; Oliver E. Williamson, “Transaction Cost Economics Meets Posnerian Law and Economics” 149 J. Institutional & Theoretical Econ. (1993) 99.Google Scholar
  20. 21.
    Ugo Mattei, “The Rise and Fall of Law and Economics: An Essay For Judge Guido Calabresi”, 64 Md. L. Rev. (2005) 220.Google Scholar
  21. 22.
    See, for example, the attitude of Posner and the criticism of Ronald Dworkin and Jules Coleman in the “Symposium: Efficiency as a Legal Concern”, 8 Hofstra L. Rev. (1980) 485.Google Scholar
  22. 23.
    Kenneth G. Dau-Schmidt, “An Economic Analysis of the Criminal Law as a Preference-Shaping Policy”, Duke L. J. (1990) 1.Google Scholar
  23. 24.
    Gregory S. Crespi, “Does the Chicago School Need to Expand Its Curriculum?”, 22 Law & Soc. Inquiry (1997) 149.CrossRefGoogle Scholar
  24. 25.
    See Niva Elkin Koren and Eli M. Salzberger, Law, Economics and cyberspace (2005), Ch. 8.Google Scholar
  25. 26.
    Steven G. Medema, Law and Economics and the Values of Imperial Science http://economix.uparis10.fr/pdf/seminaires/H2S/Medema.pdf (2006).Google Scholar

Copyright information

© Gabler | GWV Fachverlage GmbH, Wiesbaden 2008

Authors and Affiliations

  • Eli M Salzberger
    • 1
  1. 1.Faculty of LawUniversity of HaifaHaifa

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