L'analyse économique du droit comme outil du raisonnement juridique

Content Provider	Semantic Scholar
Author	Mackaay, Ejan Parent, Alain
Copyright Year	2013
Abstract	The economic analysis of law, or law and economics for short, borrows from economics tools that allow one to get a sense of the social effects of legal rules. Besides the coherence of legal rules, one can thus pursue the other component of legal reasoning which asks how a legal rule affects society. This supports the social function of law, which is to allow citizens to coordinate their actions in non-violent ways. Law and economics proposes a consequentialist approach to law.Experience shows that the law and economics perspective sheds interesting light on many legal questions. Most rules contained in the Civil Code make sense in this light and appear to form a coherent whole. This approach is helpful to doctoral students in that it often allows them to develop a coherent structure, an intelligent reading of the as yet unstructured field of law which is the object of their doctoral work. We have sought to illustrate this by way of a doctoral project bearing on blood donations.The economic analysis of law also has interesting things to say to legal practitioners. Business lawyers called upon to draft the contract that sets the parameters of a business relationship, and possibly to take part in the negotiations leading to it, better understand the negotiating space and the cost attached to clauses seeking to protect their client. Litigators who need to convince the court of an interpretation of a law text may draw inspiration from what law and economics scholarship has identified as the overall policy objectives pursued in different fields of law. Pleadings can then insist on the conformity of the proposed interpretation to such overall objectives. At times, a micro-analysis of a particular provision, by contrasting it with the opposite rule, allows one to identify the interpretation that would be socially most beneficial.We submit that law and economics has useful contributions to make to all aspects of lawyering. It does not replace traditional legal reasoning but offers a method that is at once complementary and essential. This justifies that it be given a place of choice in legal education.
File Format	PDF HTM / HTML
DOI	10.2139/ssrn.2205723
Alternate Webpage(s)	https://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/18309/Mackaay-Parent-AED-outil-raisonnement-juridique-2013.pdf?isAllowed=y&sequence=1
Alternate Webpage(s)	https://doi.org/10.2139/ssrn.2205723
Language	English
Access Restriction	Open
Content Type	Text
Resource Type	Article