| It is widely believed that the Law and Economics is an unattached field analyzing and studying legal phenomena in an economic way. Others believe that the study of Law and Economics should also include the influences that economic activities exert on legal results.The contemporary Law and Economics was oriented in the USA. Yet the introjections of law and economic ideas took place much earlier, which can be well discovered from ancient Rome time to neoteric western countries in the aspects of mercantile system, classical plutonomy and Marxism plutonomy.The contemporary Law and Economics germinated in 1920's, while the USA was in the progressive era. Holmes bravely foretold the combination of law and economics in the future. Commons, an outstanding representative of Institutional School, recognized that in the society of merchandize, the exchanges among people were not merely goods, but special rights and obligations. In order to adjust these relations, people need legal system. The exchange relations in enterprises could also be found. As a representative of US legal realistic movement, Llewellyn on one hand studied the field of contract in the perspective of Law and Economics, and rejected the combination of Law and Economics on the other. Knight, Simons, Hayek, Director, the early representatives of the Chicago School, insisted the theory of free economics. They focused their studies on anti-trust and revealed the great significance of the combination of Law and Economics, which offered theoretic and human preparation for the rise of the Law and Economics.The contemporary Law and Economics started in 1960's with the symbolization of the publication of Coase's"The Problem of Social Cost"in 1960. The greatest contribution of Coase is that he brought the study of institution back to the perspective of economists and proposed the theory of Business Cost. His theory was named by following scholars as Coase Theory, which revealed the method of economic analysis to law. Since legal system was an important method to adjust real rights, the function of legal system had its own costs, which included not only the cost of the definition of property right, but also the right deal cost under the framework of law. The purpose of the economic analysis to law was to reveal these costs and compare them in order to seek the minimum systematic arrangement. Coase's inaugurating was great. From then on, the Law and Economic staged the academic field and became an obvious field. Up till now, the study of the Law and Economics has already formed its own research methodology. The Chicago School, the New Haven School and the like stand in great numbers. The speciality of Calabresi in the New Haven School lies in his great achievements with the background of non-Chicago School status. His analysis of Tort Law upheld the form of contemporary Law and Economics. Becker was believed to be the forerunner of the economic analysis of human behaviors. With keen humanity, he started his economic analysis of human behaviors from the discrimination of American Blacks and other minorities. This sort of analysis was most obviously reflected in his understanding of crime and punishment, which popularized in many fields including Family Law and others concerning human behaviors. Thus, the scope of Law and Economics developed from market monopolization and tort to non-market fields. Starting from the analyzing the concept of property right, Alchian and Demsetz, like Commons and Coase, noticed the exchange of rights and benefits covered by the exchange relations and developed Coase's theory. Buchanan proposed the theory of Public Choice by the means of demonstration analysis, and analyzed the principle problems of government bond and government deficit. He deduced a contradictory idea that government might worsen the problem instead of correct it. Stigler is considered to be the master in the field of management with the method of economic analysis. He stated the necessity and effects of control and pointed out the basic proposition of control was that the country was the potential resource or threat of every industry, because the country could selectively help or damage many industries by means of forbidding, force, giving or taking away capital. Thus, the main task to study government control was to explain benefited and loser in the control, the form of the control and the influence control might exert on resource deployment.The overall development of contemporary Law and Economics started in 1970's, with the symbolization of the publication of Posner's"Economic Analysis of Law"in 1973, which showed the adaptation of Law and Economics developed from Private Law to Public Law, from theory to practice. Posner, because of his great achievements, is called the authority of Law and Economics. Posner's great contribution not only lies in his theoretical altitude of the analysis of department laws such as property right, tort, contract and so on, but, more importantly, made the Law and Economics an unattached subject, which gained its own stage in the academic field. Besides popularizing the knowledge of the Law and Economics in class, Prof. Manne in George Mason University launched institutions spreading Law and Economics and cultivated a large number of lawyers and judges learning the knowledge in the field of Law and Economics, who also developed the research scope of Law and Economics from Law and Economics to an integration including Art and Hygiene. The major contribution of Williamson, who named the new Institutional Economics, was that he developed Commons and Coase's understandings of the nature of enterprises and Business Cost Economics and brought the concept of organization to Institutional Economics. He believed that the research of policies should function under the framework of economics-law-organization, which accorded more with the real situation of society and enriched the research contents of the Law and Economics. As an advocate of Chicago Law and Economics tradition, Landes is a long-term academic collaborator of Posner. They two have co-published many works on the Law and Economics concentrating on the analysis of intellectual property rights and tort. They explained the nation's legislative intention as activities carried through according to the need of profit groups. The reason why the legislation does not change together with the change of government is that profit groups evaluate and analyze the cost and benefit in controlling and influencing the government and increase the input in controlling legislation. Malloy, with a critical view, has developed the value of the Law and Economics. He challenged the mainstream Law and Economics with the representative of Posner directly and questioned the deficiency of Law and Economics efficiency view of fortune maximization. He believes that the value of law was not only refrained efficiency, but also fairness. He also advises that the nature of the study of the Law and Economics should be comparative and concentrate on studying the relationship of Economic Philosophy, Political Philosophy and Legal Philosophy concerning the choice of social arrangement. In his opinion, the Law and Economics should be open and consist of more contents concerning ideology in its research field and a new way of understanding Law and Economics should be developed.To sum up the achievements in the development of the Law and Economics within more than half a century, the following four aspects should be mentioned. The Law and Economics has already become an unattached subject; the efficiency view of fortune maximization has been shaken; the adaptation of the Law and Economics has developed from Private Law to Public Law; the Law and Economics has progressed from theory to practice.
|
PDF Full Text Request