Posnerian Economic Analysis of Law and Kelsenian Legal Positivism: How Similar are They?
At first sight, everything seems to oppose Posner’s economic approach to law and Kelsen’s positivistic jurisprudence. Yet, in a text confronting Kelsen’s "Pure Theory of Law" to the EAL, Posner evokes an eventual epistemological compatibility, arguing that Kelsen’s perspective «opens a space for economics in law». Discussing the divergences and continuities of the two frameworks in the light of Posner’s original reading of Kelsen, this paper attempts to explore a series of epistemological facets of the EAL that are mostly overlooked in the literature. The point is to show that Posner’s intriguing remark on Kelsen creates scope for unexpected interpretations as to the specific (largely implicit) assumptions in mainstream Law and Economics with respect to fundamental issues such as nature, form, scope or goal of law – making clear that when it comes to the methodology of this theory, nothing really is as it seems.
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