An Economic Theory of Law

2000 ◽  
Vol 12 (1) ◽  
pp. 1-16
Author(s):  
Hans-Peter Schwintowski
Keyword(s):  
Economic Theory ◽  
Negative Feedback ◽  
Constitutional Law ◽  
Normative Theory ◽  
Individual Freedom ◽  
Empirical Knowledge ◽  
Normative Feedback ◽  
Evolutionary Dynamic ◽  
Legal Rules ◽  
Theory Of Law

What has to be developed here is a comprehensive general economic theory of law, based on normative individualism, i.e. the notion of individual freedom. Such a theory can only be evolutionary in character. It must recognize empirical knowledge and transfer it into norms, yet remain open to innovation on all levels and have the capacity to translate these experiences normatively through a corrective rule that has only existed in current law as the norm checks implied at the level of constitutional law. An economic theory—guided by consensus and nevertheless efficiency-oriented—would be based on a negative feedback between experience and legal rules and corrective rules and experience. It would no longer be a matter of a purely descriptive, static, empirical economic theory, but rather an evolutionary, dynamic and empirically normative feedback theory. This development would imply not only an economic theory of law but also a normative theory of economics.

scholarly journals Too Good to Be True: The Positive Economic Theory of Law

1987 ◽  
Vol 87 (7) ◽  
pp. 1447 ◽  
Author(s):  
J. M. Balkin ◽  
William M. Landes ◽  
Richard A. Posner
Keyword(s):  
Economic Theory ◽  
Positive Economic ◽  
Theory Of Law

An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law

1991 ◽  
Vol 16 (02) ◽  
pp. 205-248 ◽  
Author(s):  
Stephen M. Feldman
Keyword(s):  
Racial Discrimination ◽  
Constitutional Law ◽  
Western Society ◽  
Economic Action ◽  
Iron Cage ◽  
Weberian Theory ◽  
Substantive Rationality ◽  
Formal Rationality ◽  
Theory Of Law ◽  
Constitutional Jurisprudence

Among legal scholars, Anthony T. Kronman and David M. Trubek have provided the leading interpretations of Weber's theory of law. Kronman and Trubek agree on two important points: Weber's theory is fundamentally contradictory, and Weber's theory relates primarily to private law subjects such as contracts. This article contests both of these points. Building on a foundation of Weber's neo-Kantian metaphysics and his sociological categories of economic action, this article shows that Weber's theory of law is not fundamentally inconsistent; rather it explores the inconsistencies that are inherent within Western society itself, including its legal systems. Furthermore, Weber's insights can be applied to modern constitutional jurisprudence. Weberian theory reveals that modern constitutional law is riddled with irreconcilable tensions between process and substance—between formal and substantive rationality. In the context of racial discrimination cases involving equal protection and the Fifteenth Amendment, the Supreme Court's acceptance of John Hart Ely's theory of representation-reinforcement demonstrates the Court's resolute pursuit of formal rationality, which insures that the substantive values and needs of minorities will remain unsatisfied.

Why Psychoanalysis Matters to Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Lived Experience ◽  
Criminal Law ◽  
Legal Theory ◽  
Practical Knowledge ◽  
Individual Freedom ◽  
Human Beings ◽  
Legal Doctrine ◽  
Legal Rules ◽  
The Law ◽  
Theoretical Foundations

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

scholarly journals FRANTIŠEK WEYR (1879-1951). ZAPOMNIANY NORMATYWISTA

2016 ◽  
Vol 13 (4) ◽  
pp. 91
Author(s):  
Bartosz Lewandowski
Keyword(s):  
Normative Theory ◽  
Law School ◽  
Scholarly Activity ◽  
Communist Regime ◽  
Second Republic ◽  
Legal Norms ◽  
History Of ◽  
Main Representative ◽  
Theory Of Law ◽  
Second World

FRANTIŠEK WEYR (1879-1951): A FORGOTTEN NORMATIVIST Summary František Weyr (1879-1951) was one of the most outstanding adherents of the normative theory of legal science during the inter-war period. His scholarly activity was focused on the basic issues important for normativism, on which he embarked shortly before Hans Kelsen’s, and with no influence from Kelsen (Weyr published his earliest book in 1908). Weyr was one of the founders and the main representative of the Czechoslovak Neo-Kantian Law School, which was composed of his former students, members of the Faculty of Law at the Tomáš Masaryk University in Brno. Members of the Czechoslovak Neo-Kantian Law School engaged in numerous polemics on key normativist issues (e.g. the nature of legal norms). F. Weyr’s work in the philosophy of law made a salient contribution to the turbulent history of Czechoslovakia, exerting an influence from the auspicious years of the independent Second Republic (1918-1938), through the period of the Czech and Moravian Protectorate under Nazi German occupation during the Second World War, to the postwar period under the Communist regime and its miserable demise in 1990. Weyr is appreciated in Czech scholarship for his achievements in the theory of law. Although he was one of the key figures associated with normativism, often compared with his colleague H. Kelsen, his work in scholarship is not well known in the Polish theory of law.

scholarly journals RANCANGAN QANUN HUKUM KELUARGA ACEH DALAM HIRARKI PERUNDANG-UNDANGAN INDONESIA

2019 ◽  
Vol 5 (2) ◽  
Author(s):  
Fadli ◽  
Muammar
Keyword(s):  
Constitutional Law ◽  
Islamic Law ◽  
Family Law ◽  
Daily Lives ◽  
Legal Rules ◽  
Indonesian Population ◽  
Unitary State ◽  
The Family ◽  
Aceh Province ◽  
Points Of View

This study wants to analyze the position of the Aceh qanun in the Indonesian legislative hierarchy. The discussion on the development of qanun cannot be separated from the events of the 1998 Reformation, which demanded the existence of democracy in various sectors of state life. The implementation of Islamic sharia in Aceh which is carried out by forming qanun-qanun is organized based on the Law on special autonomy, namely Law Number. 8 of 2001 concerning Special Autonomy for the Province of Aceh as the Province of Nanggroe Aceh Darussalam and Law Number. 11 of 2006 concerning Aceh Government. The author analyzes the legality of the Family Law Qanun Draft with the construction of constitutional law in terms of two points of view, namely the formality of establishing legislation and the concept of a unitary state. Based on the background that has been elaborated above, the issues to be discussed are: (1) how is the legality of the Family Law Qanun Draft in terms of the concept of a unitary state? (2) how is the legality of the Family Law Qanun Draft in terms of the formality of forming legislation? The position of Qanun in the legal system in Indonesia is different from local regulations in Indonesia which are also based on several reasons. First, legally the position of Qanun in Aceh Province clearly has a stronger legal force compared to other regional regulations in Indonesia. Secondly, sociologically, the majority of Indonesian population, especially in Aceh Province, implies that they have practiced Islam in their daily lives. Although the level of acceptance of Islamic law itself is stratified, nevertheless Islam becomes the dominant value in daily life, both in the spiritual content, language, culture, practice of behavior to the implementation of Islamic Sharia itself. Third, in terms of Islamic law, the content is loaded with the theme of justice. Islam which in its teachings also contains legal rules is a teaching system as well as a methodology for its achievement, because every nation has the same and universal ideals, in the form of justice, order, peace, harmony, holiness, and so forth. This rule is of course in accordance with the needs of humans who live on this earth.Keywords: Qanun, Family Law, Legislation. 

1. Introduction to constitutional law

2021 ◽  
pp. 1-8
Author(s):  
Colin Faragher
Keyword(s):  
Constitutional Law ◽  
Central Government ◽  
Essential Information ◽  
Legal Rules ◽  
Parliamentary Sovereignty ◽  
Head Of State ◽  
Form Of Government ◽  
The Government ◽  
Definition Of ◽  
The Uk

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the definition of constitutional law and the characteristics of the British Constitution. Constitutional law looks at a body of legal rules and political arrangements concerning the government of a country. A constitution may take the form of a document or set of documents which declare that a country and its chosen form of government legitimately exists. The British Constitution is largely unwritten, flexible in nature, and based on absolute parliamentary sovereignty. The UK is also a unitary state. There is a central government, as well as devolved legislative and executive bodies in Scotland, Wales, Northern Ireland, and England. It is also a constitutional monarchy. This means that the head of state is a king or queen and that they exercise their powers in and through a parliamentary system of government in which the members of the executive are accountable to a sovereign parliament.

Reaching the Internal Tension Model

2021 ◽  
pp. 42-58
Author(s):  
Margit Cohn
Keyword(s):  
Decision Maker ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Executive Branch ◽  
Normative Theory ◽  
The Political ◽  
Modes Of Operation ◽  
Political Sphere ◽  
The Third ◽  
Executive Action

This chapter provides the basis of the model advanced in the book. Based on the internal tension model, governing constitutionalism-at-large, the chapter submits that the executive is best viewed as straddling the line between subjection to law and dominance beyond law. This is no ‘paradox:’ embodying one of the tensions ingrained in constitutional law, the executive draws on an irresolvable tension between its role as executor of law, under the separation of powers ideal, and its function as manager, or dominant decision-maker in the political sphere, in which it acts above and beyond the law. Under the internal tension model, normative theory can be better expounded, and the extent of required constraints over excessive power can be better addressed. The chapter discusses, and rejects, three models of the executive branch, all of which are based on hierarchical and dichotomous thinking. The subservient executive model connotes full supremacy of the constitution and legislation over the executive; the imperial executive model draws on a vision of executive supremacy; and the third, bipolar model offers a vision of alternating modes of operation. All are set aside in favour of a model that recognizes the internal tension which underlies executive action.

The Thought of Samuel J. Levine at the Intersection of the Talmudic and Constitutional Law

2019 ◽  
Vol 8 (2) ◽  
pp. 211-235
Author(s):  
Jeffrey B. Meyers
Keyword(s):  
Constitutional Law ◽  
Professional Ethics ◽  
Jewish Law ◽  
Judicial Interpretation ◽  
Jewish Ethics ◽  
The Us ◽  
American Law ◽  
Us Constitution ◽  
Similarities And Differences ◽  
Theory Of Law

Samuel J. Levine’s research and writing collected in the two-volume anthology, Jewish Law and American Law: A Comparative Study addresses the connection between contemporary American Law and ancient Talmudic Law through the lens of contemporary Constitutional Law and Professional Ethics. Professor Levine mines the legacy of the late Robert Cover and his theory of law and narrative in particular to draw out the similarities and differences between rabbinic interpretation of the Torah and judicial interpretation of the US Constitution. He also considers where Jewish ethics converge and diverge from professional rules of conduct in the legal profession. This article summarizes some of the key turns in Levine’s recently published collected works and reflects critically on their key themes.

The Positive Economic Theory of Tort Law

2019 ◽  
Author(s):  
Mark F. Grady
Keyword(s):  
Economic Theory ◽  
Tort Law ◽  
The United States ◽  
Positive Theory ◽  
Norman Conquest ◽  
Legal Rules ◽  
System P ◽  
Tort System ◽  
The Cost ◽  
Fresh Insight

Tort law is part of the common law that originated in England after the Norman Conquest and spread throughout the world, including to the United States. It is judge-made law that allows people who have been injured by others to sue those who harmed them and collect damages in proper cases. Since its early origins, tort law has evolved considerably and has become a full-fledged “grown order,” like the economy, and can best be understood by positive theory, also like the economy. Economic theories of tort have developed since the early 1970s, and they too have evolved over time. Their objective is to generate fresh insight about the purposes and the workings of the tort system. The basic thesis of the economic theory is that tort law creates incentives for people to minimize social cost, which is comprised of the harm produced by torts and the cost of the precautions necessary to prevent torts. This thesis, intentionally simple, generates many fresh insights about the workings and effects of the tort system and even about the actual legal rules that judges have developed. In an evolved grown order, legal rules are far less concrete than most people would expect though often very clear in application. Beginning also in the 1970s, legal philosophers have objected to the economic theory of tort and have devised philosophical theories that compete. The competition, moreover, has been productive because it has spurred both sides to revise and improve their theories and to seek better to understand the law. Tort law is diverse, applicable to many different activities and situations, so developing a positive theory about it is both challenging and rewarding.

scholarly journals The Economic Theory of Public Enforcement of Law

2000 ◽  
Vol 38 (1) ◽  
pp. 45-76 ◽  
Author(s):  
A. Mitchell Polinsky ◽  
Steven Shavell
Keyword(s):  
Economic Theory ◽  
Principal Agent ◽  
Repeat Offenders ◽  
Public Enforcement ◽  
Legal Rules ◽  
The Public ◽  
Imperfect Knowledge ◽  
Principal Agent Relationship

This article surveys the theory of the public enforcement of law—the use of public agents (inspectors, tax auditors, police, prosecutors) to detect and to sanction violators of legal rules. We first present the basic elements of the theory, focusing on the probability of imposition of sanctions, the magnitude and form of sanctions, and the rule of liability. We then examine a variety of extensions of the central theory, concerning accidental harms, costs of imposing fines, errors, general enforcement, marginal deterrence, the principal-agent relationship, settlements, self-reporting, repeat offenders, imperfect knowledge about the probability and magnitude of fines, and incapacitation.

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