Klaus Mathis, Effizienz statt Gerechtigkeit? Auf der Suche nach den philosophischen Grundlagen des Ökonomischen Analyse des Rechts, 3. überarbeitete und erweiterte Ausgabe, Duncker & Humblot, Berlin 2009.
In this essay, the author, Klaus Mathis, applauds the fact that German universities are following the “Law and Economics” movement, which has already made great strides in the USA thanks to the influence of the jurist, Richard Posner. This movement wants nothing more than to have economic theory adopted into national legislation. The reviewer, Peter Nobel, lawyer and professor Emeritus, fully supports the view of the author; in particular, he praises the University of St. Gallen for its implementation of many of the demands of Mathis in its degree course; Peter Nobel organized a conference on the topic of Law and Economics in 2005.
Prof. Dr. Klaus Mathis’ dissertation comprises a search for the philosophical foundations of the economic analysis of law. He addresses both economic and philosophical foundations. In the dissertation’s third and final part, he deals with such topics as wealth, efficiency and justice. Therewith, Prof. Mathis refers to, among others, Richard Posner, an influential Chicago-based pioneer of the economic analysis of law, to whom Prof. Mathis dedicates an entire chapter.
In summary, it can be said that according to Prof. Mathis, the law should not only be based on the principles developed by Gustav Radbruch, i.e., justice, legal certainty and practicality, but also on the principle of efficiency. This is because of the correlation between efficiency and justice. A law’s efficiency should not only be taken into account when it is applied by a court, but already during the legislative process. Prof. Mathis refers to the US, where important laws are made subject to a cost-benefit analysis; the OECD, where recommendations are made to member states; and, the EU, which has adopted a plan to simplify and improve the regulatory framework.
Switzerland orients itself, on a federal level, towards the OECD recommendations; article 170 of the Swiss Federal Constitution serves as a constitutional basis for evaluations of a regulation’s consequences (“Regulierungsfolgenabschätzung”; RFA). It must be borne in mind that within the cost-benefit analysis, it does not matter which part of society is benefiting and who eventually will have to bear the costs. “It is sufficient if the societal balance of benefits and costs is positive.” (p. 214) The difficulty, lies in assessing the benefits monetarily.
Prof. Mathis also draws attention to “yet-to-be” jurists because they should be sensitized to the economic aspects of the law in order to become familiar with traditional methods of legal science.
You can find a scan (PDF) of the original text here: Mathis Klaus – Effizienz statt Gerechtigkeit