How to do Constitutional Law and Economics: a Methodological Proposal

The Law and Economics movement has not been as well received and influential in European legal scholarship as in the United States.

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On the contrary, many European Scholars explicitly eschew that approach or declare it incompatible with a Kantian-based deontological approach to law, fearing the neglect of “justice” and stressing doctrinal work as the foremost task of a lawyer.

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The reception of economic analysis of law, including its development as Behavioural Law and Economics, has thus been rather cautious and slow. Whereas in areas such as economic analysis of competition or private law areas, Law and Economics has been more successful in Europe, Hans-Bernd Schäfer being one of the leading figures,

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public law such as constitutional or public international law has been almost entirely neglected.

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The abovementioned reservations seem to apply more forcefully here than in private law areas. Two main characteristics of Law and Economics raise objections by European scholars and prevent a more successful reception of Law and Economics in Europe: one is the normative relevance of the efficiency criterion and the other is the positive rational choice approach.