Gerard Hertig, Switzerland, in: International Review of Law and Economics, 11 (1991), p. 293-300.
Hertig Gerard -Switzerland, International Review of Law and Economics
Summary
The text was published in the “International Review of Law and Economics”, which is a Journal that provides a forum for interdisciplinary research at the interface of Law and Economics.
Prof. Dr. Gerard Hertig`s short text is aimed at describing the Law and Economics movement in Switzerland. He starts with the statement that there is no Law and Economics movement in Switzerland at all, except for two (traditional) areas where the economic consequences of laws have been debated by scholars (laws dealing with the administrative supervision of certain sectors of the economy as well as antitrust and unfair competition). However, he also predicts that, under the influence of scholars who have studied in the US during the past decade, the Law and Economics movement will begin to develop in Switzerland.
In a following paragraph, Prof. Hertig draws the conclusion that because there is no Swiss Law and Economics movement, one can expect that Swiss law has thus far not been affected by economics. This also holds true for that area of law that is described as common law or case law in the US. However, this statement has to be tempered with regard to the regulation of the economy. While analyzing three examples, Prof. Hertig stresses that economic analysis plays a role whenever a statute is drafted and the parliament takes economic consequences into account. But whenever the state regulates the economy (which at the federal level it often does directly), it is very difficult to separate economic and political aspects of the discussion, and the impact of the former is far from obvious.
The text ends with a discussion of the future prospects for the Law and Economics approach in Switzerland. Prof. Hertig draws a pessimistic assessment due to (1) legal practitioners not being at ease with economics, (2) the legislative purposes focusing on political considerations and (3) Swiss law schools not offering full Law and Economics courses. Nevertheless, Prof. Hertig does not exclude the possibility that a Law and Economics movement will develop earlier than anticipated due to the willingness to conform Swiss law to EU law (to the fullest extent possible).