Comparative Law and Economics: Aspirations and Hard Realities

Abstract

The fields of comparative law and law and economics have not had a happy or productive relationship. There are recent notable exceptions, such as comparative corporate governance, comparative constitutional law, and comparative competition law, but we are surprised by that limited cross-fertilization, given that so many other areas of law have found concepts from law and economics helpful and, in some instances, transformative. To try to understand this phenomenon, we first examine a twenty-five-year attempt by an international group of legal and economic scholars to foster interaction between the two fields. We then examine the recent history of the field of comparative economics and its successor field, transition economics, with mainstream economics to see if there are lessons from that literature that help to explain the relative paucity of a comparative law and economics literature. We next look at one notable recent attempt to use law and economics to examine a comparative law topic—the legal origins hypothesis. We also speculate on the extent to which the status of comparative law within American law schools and the overselling of the revolutionary aspects of law and economics might help to explain the frigid relations between comparative law and law and economics. Finally, we seek to propose a way forward in which each field can learn from the other, while also recognizing that we may be expecting too much too soon. The “silent artillery of time” may be the great spur to this particular scholarly cross-fertilization.