Author of machiavelli.net, proud father of three, interested in shaping network society. Welcome to my blog.Law and Public Policy in the German-Speaking World
To understand law-driven public policy making in German-speaking European countries, one has to reflect the traditions in legal thinking. Kristoffel Grechenig and Martin Gelter (University of St. Gallen and Vienna University) are doing this in The Transatlantic Divergence in Legal Thought: American Law and Economics vs. German Doctrinalism:
Economic analysis plays a major role in the American legal discourse, while its position in the German-speaking legal debate remains comparatively limited. In Germany and Austria, a widespread aversion against law and economics can be observed among legal scholars. This article advances an explanation for this divergence on the basis of two main factors: First, American legal realism enjoyed great success, whereas the German free-law movement failed to leave a lasting impression. While legal realism transformed American legal thought and opened up the discourse to policy arguments, the predominant German legal theory emphasizes the internal coherence of the legal system, and assigns only a limited role to external elements. Second, the different philosophical roots and attitude towards and utilitarianism and consequentionalist thinking in general can explain why law and economics takes a prominent position in the US legal academia. We argue that a convergence of the discourses over the medium term is unlikely.
Think about what this means for public policy in ASG (Austria, Switzerland, Germany).
