Electicism in Law and Economics

As the popularity of ‘law and economics’ is rapidly increasing, this essay is an invitation to pause and reflect on its methodology. Mainstream law and economics is generally associated with a paradigm that embraces rational choice theory as the theoretical grid that best understands human behaviour and efficiency as the primary goal to be achieved by legal rules. This essay contends that the mainstream paradigm is inadequate because it cannot deal with a series of issues relevant for the understanding of legal-economic questions. The limits of rational choice theory employed as an exclusionary mode of analysis and of efficiency, considered to be the ultimate and only goal for policymakers, are thereby identified. Notably, the critiques formulated do not imply a rejection of rational choice theory altogether; rather, it is suggested that other theories may well enrich the analytical apparatus of L&E. It is further argued that an approach labelled ‘eclecticism’ is most desirable where eclecticism is understood to mean a paradigm open to different methodologies, doctrines, and styles. Before concluding that eclecticism is a better approach, the criticisms that such an approach may attract are considered. Drawing on the meaning of the word ‘eclectic’, it is concluded that this approach is suitable for an economic analysis of law. Finally, it is shown that law and economics scholars to a certain extent already practise eclecticism; hence, the real issue may be more a question of acknowledging its endorsement rather than advocating for it.