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Posner, Economics And The Law: From “Law And Economics” To An Economic Analysis Of Law

  • HARNAY, SOPHIE
  • MARCIANO, ALAIN

The purpose of this article is to discuss Posner's economic analysis of law and to analyse the differences between his economic analysis of law and law and economics. We propose and demonstrate a twofold original argument. First, we show that Posner does not only propose an economic analysis of the working of the legal system but also that his approach has changed in the early 1970s, shifting from a law and economics perspective in which the focus is put on the working of the economic system to an economic analysis of law in which the emphasis is put on the functioning of the legal system. He appears then no longer influenced by Aaron Director and Ronald Coase but rather by Gary Becker. Therefore, and this is the second part of our demonstration, we show that the evolution in Posner's works essentially derives from the influence of Becker and the adoption by the former of the methodological views of the latter. More precisely, we claim that Posner no longer retains a -- restrictive -- definition of economics by subject matter but that he aligns himself on Becker and his broader definition of economics placing nonmarket decisions and method at the core of the discipline. In other words, we argue that Posner is the first who transposes Becker’s definition of economics in law and economics and that this is precisely what makes Posner's economic analysis of law possible and specific, and also of particular importance.

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Article provided by Cambridge University Press in its journal Journal of the History of Economic Thought.

Volume (Year): 31 (2009)
Issue (Month): 02 (June)
Pages: 215-232

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Handle: RePEc:cup:jhisec:v:31:y:2009:i:02:p:215-232_09
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  1. Richard A. Posner, 1971. "Taxation by Regulation," Bell Journal of Economics, The RAND Corporation, vol. 2(1), pages 22-50, Spring.
  2. Coase, R H, 1992. "The Institutional Structure of Production," American Economic Review, American Economic Association, vol. 82(4), pages 713-19, September.
  3. William Mitchell, 1989. "Chicago political economy: A public choice perspective," Public Choice, Springer, vol. 63(3), pages 283-292, December.
  4. Gary S. Becker, 1974. "Crime and Punishment: An Economic Approach," NBER Chapters, in: Essays in the Economics of Crime and Punishment, pages 1-54 National Bureau of Economic Research, Inc.
  5. Alain Marciano, 2006. "Value and Exchange in Law and Economics: Buchanan versus Posner," ICER Working Papers 31-2006, ICER - International Centre for Economic Research.
  6. Posner, Richard A, 1987. "The Law and Economics Movement," American Economic Review, American Economic Association, vol. 77(2), pages 1-13, May.
  7. Posner, Richard A, 1993. "Gary Becker's Contributions to Law and Economics," The Journal of Legal Studies, University of Chicago Press, vol. 22(2), pages 211-15, June.
  8. Richard A. Posner, 1974. "Theories of Economic Regulation," Bell Journal of Economics, The RAND Corporation, vol. 5(2), pages 335-358, Autumn.
  9. Becker, Gary S, 1973. "A Theory of Marriage: Part I," Journal of Political Economy, University of Chicago Press, vol. 81(4), pages 813-46, July-Aug..
  10. Isaac Ehrlich & Richard A. Posner, 1974. "An Economic Analysis of Legal Rulemaking," The Journal of Legal Studies, University of Chicago Press, vol. 3(1), pages 257-286, January.
  11. Coase, Ronald H, 1975. "Marshall on Method," Journal of Law and Economics, University of Chicago Press, vol. 18(1), pages 25-31, April.
  12. Landes, William M, 1971. "An Economic Analysis of the Courts," Journal of Law and Economics, University of Chicago Press, vol. 14(1), pages 61-107, April.
  13. Coase, Ronald, 1998. "The New Institutional Economics," American Economic Review, American Economic Association, vol. 88(2), pages 72-74, May.
  14. Gary S. Becker & George J. Stigler, 1974. "Law Enforcement, Malfeasance, and Compensation of Enforcers," The Journal of Legal Studies, University of Chicago Press, vol. 3(1), pages 1-18, January.
  15. Hirshleifer, Jack, 1985. "The Expanding Domain of Economics," American Economic Review, American Economic Association, vol. 75(6), pages 53-68, December.
  16. A. Mitchell Polinsky & Steven Shavell, 2005. "Economic Analysis of Law," Discussion Papers 05-005, Stanford Institute for Economic Policy Research.
  17. Coase, R H, 1993. "Law and Economics at Chicago," Journal of Law and Economics, University of Chicago Press, vol. 36(1), pages 239-54, April.
  18. Coase, R H, 1988. "The Nature of the Firm: Influence," Journal of Law, Economics and Organization, Oxford University Press, vol. 4(1), pages 33-47, Spring.
  19. Robbins, Lionel [Lord], 1981. "Economics and Political Economy," American Economic Review, American Economic Association, vol. 71(2), pages 1-10, May.
  20. Coase, R H, 1996. "Law and Economics and A. W. Brian Simpson," The Journal of Legal Studies, University of Chicago Press, vol. 25(1), pages 103-19, January.
  21. Johnson, Omotunde E G, 1972. "Economic Analysis, The Legal Framework and Land Tenure Systems," Journal of Law and Economics, University of Chicago Press, vol. 15(1), pages 259-76, April.
  22. Landes, William M. & Solmon, Lewis C., 1972. "Compulsory Schooling Legislation: An Economic Analysis of Law and Social Change in the Nineteenth Century," The Journal of Economic History, Cambridge University Press, vol. 32(01), pages 54-91, March.
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