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

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  • HARNAY, SOPHIE
  • MARCIANO, ALAIN

Abstract

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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Suggested Citation

  • Harnay, Sophie & Marciano, Alain, 2009. "Posner, Economics And The Law: From “Law And Economics” To An Economic Analysis Of Law," Journal of the History of Economic Thought, Cambridge University Press, vol. 31(2), pages 215-232, June.
    • Handle: RePEc:cup:jhisec:v:31:y:2009:i:02:p:215-232_09
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    Cited by:

    1. Marciano, Alain, 2012. "Guido Calabresi's economic analysis of law, Coase and the Coase theorem," International Review of Law and Economics, Elsevier, vol. 32(1), pages 110-118.
    2. Prévost, Benoît & Rivaud, Audrey, 2018. "The World Bank’s environmental strategies: Assessing the influence of a biased use of New Institutional Economics on legal issues," Ecosystem Services, Elsevier, vol. 29(PB), pages 370-380.
    3. Giovanni B. Ramello, 2016. "The past, present and future of comparative law and economics," Chapters, in: Theodore Eisenberg & Giovanni B. Ramello (ed.), Comparative Law and Economics, chapter 1, pages 3-22, Edward Elgar Publishing.
    4. Daniel Kuehn, 2024. "Dred Scott and Gettysburg in Tullock’s constitutional mythology and Civil War memory," Constitutional Political Economy, Springer, vol. 35(4), pages 566-591, December.
    5. Sophie Harnay, 2023. "Richard A. Posner: From Public Choice Theory to Economic Analysis of Law (1969-1973)," Working Papers AFED 23-02, Association Francaise d'Economie du Droit (AFED).
    6. Peter Leeson, 2012. "An Austrian approach to law and economics, with special reference to superstition," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 25(3), pages 185-198, September.
    7. Jean-Baptiste Fleury & Alain Marciano, 2022. "Methodological Individualism and the Foundations of the "Law and Economics" movement," Post-Print hal-03820441, HAL.
    8. Kathryn Zeiler, 2019. "Mistaken about mistakes," European Journal of Law and Economics, Springer, vol. 48(1), pages 9-27, August.
    9. Alain Marciano, 2018. "Posner, Richard," Post-Print hal-02306799, HAL.
    10. Wendy J. Gordon & Alain Marciano & Giovanni B. Ramello, 2019. "The future of law and economics and the legacy of Guido Calabresi," European Journal of Law and Economics, Springer, vol. 48(1), pages 1-8, August.
    11. Jean Baptiste Fleury, 2015. "Massive influence with scarce contributions: the rationalizing economist Gary S. Becker, 1930–2014," European Journal of Law and Economics, Springer, vol. 39(1), pages 3-9, February.
    12. Alain Marciano, 2019. "Ronald H. Coase (1910–2013)," Palgrave Macmillan Books, in: Robert A. Cord (ed.), The Palgrave Companion to LSE Economics, chapter 0, pages 555-577, Palgrave Macmillan.
    13. Alain Marciano, 2012. "How far an Austrian law and economics should be Posnerian?," The Review of Austrian Economics, Springer;Society for the Development of Austrian Economics, vol. 25(4), pages 351-354, December.
    14. Alain Marciano & Giovanni Battista Ramello, 2017. "The judge, the academic and the public intellectual: the totemic scholarship of Richard A. Posner," European Journal of Law and Economics, Springer, vol. 43(3), pages 389-392, June.
    15. Marciano, Alain & Melcarne, Alessandro & Ramello, Giovanni B., 2020. "Justice Without Romance: The History Of The Economic Analyses Of Judges’ Behavior, 1960–1993," Journal of the History of Economic Thought, Cambridge University Press, vol. 42(2), pages 261-282, June.
    16. Sophie Harnay & Alain Marciano, 2009. "Should I help my neighbor? Self-interest, altruism and economic analyses of rescue laws," European Journal of Law and Economics, Springer, vol. 28(2), pages 103-131, October.
    17. Alain Marciano, 2010. "Calabresi, "law and economics" and the Coase theorem," ICER Working Papers 26-2010, ICER - International Centre for Economic Research.
    18. Alain Marciano & Giovanni Battista Ramello, 2019. "Law, economics and Calabresi on the future of law and economics," European Journal of Law and Economics, Springer, vol. 48(1), pages 65-76, August.
    19. Magdalena Małecka, 2017. "Posner versus Kelsen: the challenges for scientific analysis of law," European Journal of Law and Economics, Springer, vol. 43(3), pages 495-516, June.
    20. Alain Marciano & Steve G. Medema, 2018. "Disciplinary Collisions: Blum, Kalven, and the Economic Analysis of Accident Law at Chicago in the 1960s," Post-Print hal-01836082, HAL.
    21. Peter T. Leeson & Joshua Pierson, 2017. "Economic origins of the no-fault divorce revolution," European Journal of Law and Economics, Springer, vol. 43(3), pages 419-439, June.

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