Special Workshop Abstract

Does economic analysis of law rely on a distinct concept of law? This question does not have a simple answer in part because economic analysis of law is not a unitary enterprise and in part because the distinct concept of law embedded in one of its strands is generally misinterpreted. Some research projects are compatible with any of the concepts of law currently endorsed. Moreover, economic analysis provides a formal framework within which current versions of positivism may be formulated. The political economy school of economic analysis seeks to explain law solely in terms of the incentive structures within legal institutions in particular and society in general. This view of law is often interpreted as a form of Austin’s theory of law that was effectively rebutted by Hart. This essay argues that, on an alternative interpretation, political economy challenges both the conceptual analysis and the political question methodologies currently in use in philosophy of law to resolve questions concerning the concept of law. Instead political economy argues that the only viable concept of law is a technical, social science one.