Homo economicus versus homo iuridicus

Mariusz J. Golecki

pp. 69-91

in: Klaus Mathis (ed), Law and economics in Europe, Berlin, Springer, 2014

Abstract

This essay concentrates on the critical analysis and evaluation of some characteristics of the one of the most influential discourses in modern jurisprudence , namely law and economics . In this essay I will claim that the interpretation of the Coase theorem adopted by the law and economics scholars in American jurisprudence , specifically the implementation of the price theory and welfare economics within the lines of the M. Friedman 's predictive social theory (Homo Economicus model) leads to the conditions of the legal discourse that are essentially different from traditional ones, especially those based on philosophical assumptions. It seems that the interpretation adopted by some European scholars is more analytical and reflects an explanatory rather than predictive approach to modelling and the application of economics to law (Homo Iuridicus model). Thus this essay intends to explore the distinction between the two approaches and to link it with the analytical description of direct and indirect modelling , as it has been recently been proposed by A. Halpin. The aim of the essay is thus to explain the distinctive features on the law and economics discourse in the US and in Europe as potentially superseding the traditional, narrative legal discourse and to address the question about the relationship between those two types of discourses.