Henner Kleinewefers, Ökonomische Theorie des Rechts. Über Unterschiede zwischen dem ökonomischen und dem jruistischen Denken, in: Dicke/Fleiner-Gerster (Hrsg.), Staat und Gesellschaft, Festschrift für Leo Schürmann zum 70. Geburtstag, Freiburg 1987, S. 83 ff.
This article was published in 1987 as a contribution to the commemorative publication (“Festschrift”) for Leo Schürmann on the occasion of his seventieth birthday. Henner Kleinewefers was a professor at the University of Freiburg, Switzerland. Leo Schürmann was a lecturer in the legal department of the same University for over 30 years, where he authored important opinions on jurisdiction, politics, economics and media. The focus of his work was in the area of administrative law.
Kleinewefers’ article is essentially concerned with the differences between economic and judicial thinking.
In this essay, Prof. Dr. Henner Kleinewefers compares legal and economic thinking. He refers to the economic theory of law, which has arisen from a joining together of the economic and legal sciences.
The text deals with the background of this development and some key questions regarding the economic theory of law. The answers given by lawyers and economists to these key questions differ; their theories are therefore contrasted and, subsequently, critically evaluated by Prof. Kleinewefers. Therein, he identifies both differences and similarities. The most basic question regarding the economic theory of law is the question of what consequences laws, administrative acts, judgments and party agreements entail.
In addition to the key questions, there are certain basic statements made by the economic theory of law, which Prof. Kleinewefers examines with regard to the different mindset of lawyers and economists. In summary, the economic theory of law makes statements about the structural incentive of the law and deduces from this, the law’s behavioral effects.
For Prof. Kleinewefers, the economic theory of law is an important tool to curb lawyers in their positivistic approach to economic policy:
“However, there is the impression that jurists seldom do not overstrain the analogy of legislation and economic policy. Apparently, from the formal similarity of their form of expression, the conclusion is drawn that the achievement of social goals would be – as a matter of fact – as simple as limiting individual wrongdoing through sanctions.) Among other things, as this is not the case, there is an ‘economic theory of law’.” (p. 112)
You can find a scan (PDF) of the original text here: Kleinewefers Henner – Ökonomische Theorie des Rechts