법경제학적 방법론의 유용성과 한계에 관한 소고

The economic analysis of law has prevailed in the U.S. legal studies, and currentlymore and more legal scholars in the European and Asian countries also employssuch an economic approach. This paper examines the extent to which the lawand economics approach contributes to the traditional legal scholarship, as well asthe legislation and legal interpretation. Examining conflicting arguments on the relationshipbetween economic analysis and traditional legal thought reveals that the originof such debate lies on their different use of the notion of economics. An economicsas a thought of utilitarianism, for instance, inevitably limits its relevance tothe legal approach. On the other hand, if it is claimed in the name of economicsthat individuals are assumed to be rational whatever they pursue, or that law is asystem of reducing transaction costs, an economic analysis will successfully explainthe traditional legal system such as civil law and criminal law. This paper arguesfrom different direction that the economic analysis might have limitation in applyingto traditional legal system. This paper emphasizes that the economics is a study ofeach individual’s ex ante incentives, which have not been much taken into accountin traditional civil law and criminal law. Therefore, the policy recommendation basedon the economic analysis is unlikely to be in harmony with current legal scholarship. This paper illustrates several examples of such conflicts, but this paper also emphasizesthat, in spite of such limitation, law professors, lawyers, and legislators shouldbe equipped with the economic analysis which will lead them to more scientific orrefutable understanding of law.