“Economist Legislators”: The Use of Economic Analysis of Law in the Lawmaking Process

The article investigates how the economic analysis of law (EAL) can be useful to legislators. It starts from the premise that legislators who choose to legislate make a rational choice. Reason, however, is not the postulate of the rationality of the legislator traditionally used in legal discourse. Legislation is assumed to involve a rational decision in which the expected costs and benefits of using legislation as a social conflict resolution mechanism are weighed. After a brief explanation of the main characteristics of the EAL, this methodology is used to understand the process of drafting legislation. Next, the EAL application exercise is carried out to explain the legislative choices regarding the textual formulations of the norms. In legislative technique, traditionally, it is read that laws must be clear, simple and easy for citizens to comply with. However, the use of EAL suggests other readings, showing in a special way that legislative choices depend on several parameters. The literature produced debating the degree of precision or specificity of the legislation is incorporated for the understanding of the activity of legislating with vague norms (standards), to the detriment of specific norms (rules). The methodology used is a literature review on the economic analysis of law itself. But the research is also descriptive and exploratory. Although it does not exhaust the theme, it seeks both to describe the connections between EAL and the elaboration of laws and to provide bases for further investigations, notably with regard to the use of legislative technique. The result goes in the sense that the improvement of the process of drafting laws generates a higher ex ante cost for legislators, but generates a reduction in ex post costs that more than compensates for the initial cost, as it provides savings in the face of all costs. overall benefits and costs incurred.