Andreas Heinemann, Recht, Ökonomie und Realität, in: Waldburger/Sester/Peter/Baer (Hrsg.), Law & Economics – Festschrift für Peter Nobel zum 70. Geburtstag, Bern 2015, S. 21 – 41.
Prof. Dr. Peter Nobel celebrated his seventieth birthday on 17 July 2015. To mark this special occasion, a number of friends and peers came together to congratulate him with a collection of their essays. The result is a “Liber Amicorum”, a commemorative publication (“Festschrift”) with 32 contributions. One of these contributions is the essay of Andreas Heinemann entitled, “Recht, Ökonomie und Realität” (Law, Economy and Reality). The six thematic blocks reflect the main focus and the special understanding of the St. Gallen approach to Law and Economics, which was significantly influenced by Peter Nobel – namely, both as interlocking theories and methods of the two disciplines and as a pragmatic, holistic approach to regulatory issues and structural questions for markets and companies.
This contribution of Prof. Dr. Andreas Heinemann deals with the question of why there is still such a big distance between Law and Economics after decades of efforts in the economic analysis of law. This holds true particularly for areas of life which are distant from economic activities, and for the area of economic law itself.
One reason for this might be the different view of reality in Law and Economics. The behavioral science approach promises help here. Its potential is illustrated using the example of competition law. Based on this example, it is illustrated that behavioral economics perceptions allow a more realistic solution to relevant problems. Critics warn about the risks of an exaggerated interventionism. In contrast, it should be clear that the contextual form of the antitrust standards might be, to some extent, criticized, and some of the antitrust provisions can be rejected as too interventionist. However, as emphasized by Prof. Heinemann, this is not an argument for applying provisions on real behavior and refraining from taking taking heuristic fictions into account.
Prof. Heinemann concludes his analysis with a view to the concept of freedom, which has been held against Law and Economics by some scholars in a fundamental way. However, this reproach does not apply to its fundamental nature. Interdisciplinarity ensures an integral coverage of the reality. In this context, behavioral science-inspired approaches appear to be more profitable than concepts that are based on fictional assumptions. In fact, legal practitioners are bound to legal regulations. Nevertheless, there is some room for play here that can be filled by economic contemplation.
You can find a scan (PDF) of the original text here: Heinemann Andreas – Recht, Oekonomie und Realitaet