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Common law and civil law as pro-market adaptations

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Abstract

We argue that in the development of the Western legal system, cognitive departures are the main determinant of the optimal degree of judicial rule-making. Judicial discretion, seen here as the main distinguishing feature between both legal systems, is introduced in civil law jurisdictions to protect, rather than to limit, freedom of contract against potential judicial backlash. Such protection was unnecessary in common law countries, where free-market relations enjoyed safer judicial ground mainly due to their relatively gradual evolution, their reliance on practitioners as judges, and the earlier development of institutional checks and balances that supported private property rights. In our framework, differences in costs and benefits associated with self-interest and lack of information require a cognitive failure to be active.

Suggested Citation

  • Benito Arruñada & Veneta Andonova, 2008. "Common law and civil law as pro-market adaptations," Economics Working Papers 1098, Department of Economics and Business, Universitat Pompeu Fabra.
  • Handle: RePEc:upf:upfgen:1098
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    Cited by:

    1. Fabien Eloire & Claire Lemercier & Veronica Aoki Santarosa, 2016. "Beyond the personal-anonymous divide: Agency relations in powers of attorney in France, 18th–19th centuries," Working Papers hal-01358365, HAL.
    2. Fabien Eloire & Claire Lemercier & Veronica Aoki Santarosa, 2016. "Beyond the personal-anonymous divide: Agency relations in powers of attorney in France, 18th–19th centuries," Sciences Po publications info:hdl:2441/3v5ra0iula8, Sciences Po.

    More about this item

    Keywords

    Legal systems; judiciary; institutional development; behavior; enforcement;

    JEL classification:

    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General
    • N40 - Economic History - - Government, War, Law, International Relations, and Regulation - - - General, International, or Comparative
    • O10 - Economic Development, Innovation, Technological Change, and Growth - - Economic Development - - - General

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