After reading the excellent article referred to below by Professors Martin Gelter and Kristoffel Grechenig on the reasons why European legal thought has embraced law and economics much less than American legal thought has, I asked them if they would write a posting about it.
Feel free to comment on this posting by Prof. Grechenig (you can comment, or send a longer posting to me at firstname.lastname@example.org). - Henrik
Some History of Legal Thought and Its Influence on Law & Economics
by Kristoffel Grechenig, Dr., LL.M., University of St. Gallen, Switzerland & Max Planck Institute for Research on Collective Goods, Bonn, Germany
I widely agree with H.-B. Schäfer, when he says that the impact of law and economics on legal scholarship is increasing (blog post, 30/5/09). In order to understand why there are still differences between U.S. legal scholarship and German-tradition legal scholarship with regard to law and economics, it is essential to understand the historical development of German "legal science". I believe that there are two main factors for this transatlantic divergence: First, legal realism enjoyed great success in the U.S., whereas the German free-law movement failed to leave a lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory for a long time emphasized and still emphasizes the internal coherence of the legal system; it assigns only a limited role to external elements. Second, the different philosophical roots and attitude towards utilitarianism and consequentionalist thinking in general had an impact on legal scholarship such that a resistance to consequentialism in Europe implied a resistance to law and economics. To be clear, quite a bit has changed in the past due to the work of the people who have posted on this blog and many others. The point is that a general and widespread acceptance will depend, among other factors, on how well the historical basis of legal doctrine has been understood. For more on the historical development please see the article by Martin Gelter and myself published in the Hastings International and Comparative Law Review, Vol. 31, No. 1, 2008, http://ssrn.com/abstract=1161168).