Why the Influence of Law and Economics Differs between Legal Fields

If one favors a strictly positive concept of Law and Economics prima facie, it seems natural that the standing of the methods should in principle not depend on the area of Law. Obviously there are fields where Law and Economics has more tradition than in others. But a tool for predicting the consequences of actions under a given law should be of high importance in any area of law. In reality, however, the animosity is often strong. For many, this is due to the suspicion that the method is not as neutral as some protagonists claim, but that implicitly one buys in a set of strong values applying it. Leaving this debate aside, this article analyzes that legal consequences are not equally relevant for the norm system of different areas of law. In Antitrust Law today, every argument made more or less intensively relies on economic analyses. The affinity to economics is often explained by the proximity of the field to the economy. Therefore, the economic tools seem naturally adequate. Looking closer the adequacy depends on the fundamental ratio of Antitrust Law, rather than on any natural affinity. In the fifties in Germany, a so-called atomistic theory was discussed. Its central idea was that Antitrust Law has to protect democracy from the economic influence of large companies, which was seen as one driving force of the Third Reich. Since protecting democracy after the experience of dictatorship, outweighed an efficiency ratio, the theory proclaimed strict rules for the size of companies. The efficiency of markets or consumer surplus was irrelevant to the theory. Obviously for an Antitrust law shaped like this, a predictive theory of market behavior would have had no central importance. Thus, the (dominant) ratio of the field decides whether the method is influential. By shifting the values of the system of norms, the protagonist decides how important the evaluation of consequences and with it the economic instruments are. An example stems from German criminal law. 24 StGB establishes a privilege for someone who breaks off a criminal act. The customary justification given for the privilege was the so-called theory of the golden bridge. The way back into legality should be held open for the offender as long as possible. Giving this inventive was meant to protect victims. But then criminology brought evidence that most offenders do not think about legal frameworks while committing the act. They might reflect before they engage in the criminal act, but once start, they repress thoughts of failure and thus legal incentives. This was not the end of 24 StGB, but rather commentaries suggested that it could not be excluded that the incentives would bring at least some offenders to break off. Since protecting victims is the highest objective, 24 StGB should be upheld even if there is little hope. This argument is immune to the economic analyses of consequences; it simply goes beyond the scope of the method that never can exclude that at least someone might be influenced by the incentives. Today a purely normative reason is given for 24 StGB. One who breaks off the criminal act has finally herself affirmed the authority of the law, and thus punishment is not needed to stabilize the authority of the law. The categories used in this argument are obviously not meant to be empirically verified. A simple rule applies: The more deontological a field argues, the less importance economic analyses will have.