- University of Aberdeen School of Law
- Tilburg University, Tilburg Law and Economics Center (TILEC), Department Memberadd
- Law, Jurisprudence, Law and Economics, Philosophy Of Law, Legal Theory, Rational Choice, and 16 moreComparative Private Law, Law and Society, Law and philosophy, Legal Philosophy, Legal research, Philosophy, Political Philosophy, Political Theory, H.L.A. Hart, Legal interpretation, Philosophy Of Economics, Normativity, Legal Reasoning, Comparative Law, Legal Methodology, and Judicial Decision-Makingedit
- Péter Cserne is professor of law at the University of Aberdeen, Scotland. His research interests include law&economic... morePéter Cserne is professor of law at the University of Aberdeen, Scotland. His research interests include law&economics, legal reasoning, private law theory, history of legal and political thought. Previously he taught at Pázmány Péter, Tilburg, Hull, and Northumbria Universities. He earned his Ph.D. at the University of Hamburg, Germany.edit
This is an excerpt from my book Freedom of Contract and Paternalism Prospects and Limits of an Economic Approach (New York: Palgrave Macmillan 2012) x + 194 pp. [Perspectives from Social Economics], ISBN 978-0-230-34029-9 Please follow... more
This is an excerpt from my book Freedom of Contract and Paternalism Prospects and Limits of an Economic Approach (New York: Palgrave Macmillan 2012) x + 194 pp. [Perspectives from Social Economics], ISBN 978-0-230-34029-9
Please follow the link to the publisher's website
Please follow the link to the publisher's website
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This research monograph provides an overview of the conceptual, methodological and disciplinary foundations of Law and Economics, discussing its main ideas, methodological foundations, intellectual roots and rivals, role in policymaking... more
This research monograph provides an overview of the conceptual, methodological and disciplinary foundations of Law and Economics, discussing its main ideas, methodological foundations, intellectual roots and rivals, role in policymaking and adjudication, as well as some of its limitations. The first book-length study on the topic in Hungarian, it includes four parts:
1. Rational choice theory as methodological paradigm,
2. Law and Economics: basic concepts, schools, and controversies,
3. Economic analysis in public policy, legislation and adjudication,
4. The limits of law and economics: freedom and coercion.
Please follow the link to the publisher's website where you can order the book (and save some money!)
1. Rational choice theory as methodological paradigm,
2. Law and Economics: basic concepts, schools, and controversies,
3. Economic analysis in public policy, legislation and adjudication,
4. The limits of law and economics: freedom and coercion.
Please follow the link to the publisher's website where you can order the book (and save some money!)
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This Palgrave Pivot is the first book in the field of Law & Economics looking at the relationship between economics and law in legal reasoning. The book constitutes a reference point for the economic analysis of legal institutions, as... more
This Palgrave Pivot is the first book in the field of Law & Economics looking at the relationship between economics and law in legal reasoning. The book constitutes a reference point for the economic analysis of legal institutions, as legal reasoning remains the dimension of legal systems least explored by economists.
Despite their differences, economics and legal reasoning interact in many interesting ways. This book offers a fast track to these interactions. Both supporters and critics of Law & Economics will be exposed to a yet-to-be-developed area of interaction between the disciplines.
This book will be of interest to economists, legal scholars, and Law and Economics specialists, and can be used as teaching material in courses on Law & Economics and legal reasoning as well.
Despite their differences, economics and legal reasoning interact in many interesting ways. This book offers a fast track to these interactions. Both supporters and critics of Law & Economics will be exposed to a yet-to-be-developed area of interaction between the disciplines.
This book will be of interest to economists, legal scholars, and Law and Economics specialists, and can be used as teaching material in courses on Law & Economics and legal reasoning as well.
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Law and Economics is an established field of research and arguably one of the few examples of a successful interdisciplinary project. This book explores whether, or to what extent, that interdisciplinarity has indeed been a success. It... more
Law and Economics is an established field of research and arguably one of the few examples of a successful interdisciplinary project. This book explores whether, or to what extent, that interdisciplinarity has indeed been a success. It provides insights on the foundations and methods, achievements and challenges of Law and Economics, at a time when both the continuing criticism of academic economics and the growth of empirical legal studies raise questions about the identity and possible further developments of the project.
Through a combination of reflections on long-term trends and detailed case studies, contributors to this volume analyse the institutional and epistemic character of Law and Economics, which develops through an exchange of concepts, models and practices between economics and legal scholarship. Inspired by insights from the philosophy of the social sciences, the book shows how concepts travel between legal scholarship and economics and change meanings when applied elsewhere, how economic theories and models inform, and transform, judicial practice, and it addresses whether the transfers of knowledge between economics and law are symmetrical exchanges between the two disciplines.
Through a combination of reflections on long-term trends and detailed case studies, contributors to this volume analyse the institutional and epistemic character of Law and Economics, which develops through an exchange of concepts, models and practices between economics and legal scholarship. Inspired by insights from the philosophy of the social sciences, the book shows how concepts travel between legal scholarship and economics and change meanings when applied elsewhere, how economic theories and models inform, and transform, judicial practice, and it addresses whether the transfers of knowledge between economics and law are symmetrical exchanges between the two disciplines.
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National Legal Systems and Globalization New Role, Continuing Relevance, eds. Pierre LAROUCHE and Peter CSERNE (The Hague: T.M.C. Asser Press & Berlin, New York: Springer 2013) x + 388 pp., ISBN 978-90-6704-884-2 This collective volume... more
National Legal Systems and Globalization New Role, Continuing Relevance, eds. Pierre LAROUCHE and Peter CSERNE (The Hague: T.M.C. Asser Press & Berlin, New York: Springer 2013) x + 388 pp., ISBN 978-90-6704-884-2
This collective volume contains papers written in a project on the role of national legal systems in a globalised word, rounded up by a substantive conclusion from the editors.
Please follow the link to the publisher's website where you can access individual chapters or the entire volume.
This collective volume contains papers written in a project on the role of national legal systems in a globalised word, rounded up by a substantive conclusion from the editors.
Please follow the link to the publisher's website where you can access individual chapters or the entire volume.
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The Rule of Law and the Challenges for Jurisprudence, eds. Peter CSERNE, Miklos KÖNCZÖL and Marta SONIEWICKA (Frankfurt, etc.: Peter Lang 2014) 148 pp. ISBN 978-3-631-64381-5 is the third volume of the Central and Eastern European Forum... more
The Rule of Law and the Challenges for Jurisprudence, eds. Peter CSERNE, Miklos KÖNCZÖL and Marta SONIEWICKA (Frankfurt, etc.: Peter Lang 2014) 148 pp. ISBN 978-3-631-64381-5 is the third volume of the Central and Eastern European Forum for Legal, Political and Social Theory Yearbook series, collecting papers presented at the 2012 annual Forum conference in Celje, Slovenia.
Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond.
Please follow the link to the publisher's website to access the book
Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond.
Please follow the link to the publisher's website to access the book
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Legal and Political Theory in the Post-National Age, eds. Peter CSERNE, Miklos KÖNCZÖL (Frankfurt, etc.: Peter Lang 2011) xii + 196 pp. [Central and Eastern European Forum for Legal, Political and Social Theory Yearbooks 1] ISBN... more
Legal and Political Theory in the Post-National Age, eds. Peter CSERNE, Miklos KÖNCZÖL (Frankfurt, etc.: Peter Lang 2011) xii + 196 pp. [Central and Eastern European Forum for Legal, Political and Social Theory Yearbooks 1] ISBN 978-3-631-61582-9 is the first volume of the Central and Eastern European Forum for Legal, Political and Social Theory Yearbook series, collecting papers presented at the 2010 annual Forum conference held in Budapest, Hungary.
Please follow the link to the publisher's website to access the book
Please follow the link to the publisher's website to access the book
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At the level of legal doctrines, the ‘legal construction of reality’ is a mixture of common sense factual beliefs and scientific knowledge, moral intuitions and metaphysical claims. While largely satisfactory for the everyday operation of... more
At the level of legal doctrines, the ‘legal construction of reality’ is a mixture of common sense factual beliefs and scientific knowledge, moral intuitions and metaphysical claims. While largely satisfactory for the everyday operation of the law, when confronted with the epistemological standards of social and behavioural sciences, this ‘legal worldview’ turns out to be strangely problematic.
Legal scholarship has a tendency to take a certain distance from law as institutional practice. According to HLA Hart, a key task of legal theory is to provide a ‘rational and critical foundation’ for legal doctrines. Legal scholarship comprises ‘conceptual clarification’, moving legal doctrines towards a certain epistemic ideal of objectivity, ‘enlightenment’ about empirical facts and ‘demystification’ in the form of substantive normative, including moral, argumentation. What is the role of socio-legal studies (SLS) in this context?
The aim of this paper is to reflect on the types of knowledge various projects in SLS can produce, with special emphasis on the age-old divide between theoretical and practical knowledge (rationality).
The epistemic credentials of the social sciences have been debated throughout their history; Durkheim’s social facts and Weber’s Verstehen in sociology or the trichotomy of positive science, normative science, and art in economics are classic examples. It seems that the dynamics of these meta-theoretical debates do not fully determine how corresponding debates are carried out within SLS. As an interdisciplinary field of research, SLS has not only inherited some controversies from its parent disciplines but raises new questions associated with its epistemic aspirations, as well as its relation to legal practice. The paper will conclude by reflecting on the impact of these meta-theoretical debates on knowledge claims within SLS.
Legal scholarship has a tendency to take a certain distance from law as institutional practice. According to HLA Hart, a key task of legal theory is to provide a ‘rational and critical foundation’ for legal doctrines. Legal scholarship comprises ‘conceptual clarification’, moving legal doctrines towards a certain epistemic ideal of objectivity, ‘enlightenment’ about empirical facts and ‘demystification’ in the form of substantive normative, including moral, argumentation. What is the role of socio-legal studies (SLS) in this context?
The aim of this paper is to reflect on the types of knowledge various projects in SLS can produce, with special emphasis on the age-old divide between theoretical and practical knowledge (rationality).
The epistemic credentials of the social sciences have been debated throughout their history; Durkheim’s social facts and Weber’s Verstehen in sociology or the trichotomy of positive science, normative science, and art in economics are classic examples. It seems that the dynamics of these meta-theoretical debates do not fully determine how corresponding debates are carried out within SLS. As an interdisciplinary field of research, SLS has not only inherited some controversies from its parent disciplines but raises new questions associated with its epistemic aspirations, as well as its relation to legal practice. The paper will conclude by reflecting on the impact of these meta-theoretical debates on knowledge claims within SLS.
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This is a review of Ernst-Joachim Mestmäcker's short book "A Legal Theory without Law: Ponser v. Hayek on Economic Analysis of Law" (Tübingen: Mohr 2007). I argue that while the author succeeds in suggesting an attractive (ordoliberal)... more
This is a review of Ernst-Joachim Mestmäcker's short book "A Legal Theory without Law: Ponser v. Hayek on Economic Analysis of Law" (Tübingen: Mohr 2007).
I argue that while the author succeeds in suggesting an attractive (ordoliberal) alternative approach to law and economics, his characterisation of both Posner and Hayek's views on law and legal theory is debatable, if not flawed.
I argue that while the author succeeds in suggesting an attractive (ordoliberal) alternative approach to law and economics, his characterisation of both Posner and Hayek's views on law and legal theory is debatable, if not flawed.
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This is the introduction to the special issue vol.1 issue 3 (2013) of Theory and Practice of Legislation on "Empirical Knowledge, Common Sense, and Legal Cognition". It puts the contributions in the special issue in context by drawing... more
This is the introduction to the special issue vol.1 issue 3 (2013) of Theory and Practice of Legislation on "Empirical Knowledge, Common Sense, and Legal Cognition".
It puts the contributions in the special issue in context by drawing attention to some current trends in lawmaking practices as well as academic research. On the one hand, reference to empirical research is increasingly frequent in both policymaking and legal reforms. On the other hand, the use of scientific empirical knowledge in legislation is neither systematic nor uncontroversial.
I suggested that law resists empirical knowledge for three main reasons: epistemic (related to how empirical knowledge is generated), institutional (how this knowledge is channelled and transferred into legislation or other legal procedures) and normative (related to law’s commitment to counterfactual models of human behaviour and non-instrumental goals).
It puts the contributions in the special issue in context by drawing attention to some current trends in lawmaking practices as well as academic research. On the one hand, reference to empirical research is increasingly frequent in both policymaking and legal reforms. On the other hand, the use of scientific empirical knowledge in legislation is neither systematic nor uncontroversial.
I suggested that law resists empirical knowledge for three main reasons: epistemic (related to how empirical knowledge is generated), institutional (how this knowledge is channelled and transferred into legislation or other legal procedures) and normative (related to law’s commitment to counterfactual models of human behaviour and non-instrumental goals).
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Through its behavioural assumptions, the law is closely linked to the ‘phenomenal world’, including moral intuitions, common-sense psychology, and deep-rooted factual beliefs. A well-functioning modern political community seems to rely on... more
Through its behavioural assumptions, the law is closely linked to the ‘phenomenal world’, including moral intuitions, common-sense psychology, and deep-rooted factual beliefs. A well-functioning modern political community seems to rely on assumptions about the moral agency and personhood of its members which are counterfactual in the sense that they are incompatible with certain naturalized scientific views of human behaviour. These considerations give support to the idea of law as normative guidance.
The idea of law as normative guidance for reasonable agents may have consequences for the import of empirical (psychological or neuroscientific) insights into the law. But, in the first instance, it suggests that not all governmental actions follow the pattern of normative guidance. Governance may operate in different, non-legal modes as well. The scope of normative guidance and juridical law within the set of instruments of social control is itself a matter of political and possibly also moral disagreement.
Published in Facts and Norms in Law: Interdisciplinary Reflections on Legal Method, ed. Sanne Taekema, Wouter de Been & Bart van Klink (Cheltenham, UK – Northampton, MA: Edward Elgar 2016) 100–124
The idea of law as normative guidance for reasonable agents may have consequences for the import of empirical (psychological or neuroscientific) insights into the law. But, in the first instance, it suggests that not all governmental actions follow the pattern of normative guidance. Governance may operate in different, non-legal modes as well. The scope of normative guidance and juridical law within the set of instruments of social control is itself a matter of political and possibly also moral disagreement.
Published in Facts and Norms in Law: Interdisciplinary Reflections on Legal Method, ed. Sanne Taekema, Wouter de Been & Bart van Klink (Cheltenham, UK – Northampton, MA: Edward Elgar 2016) 100–124
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This is an English-language review of a volume with selected diaries and correspondence of the legal philosopher, Bódog (Felix) Somló (1873-1920), published in German. To download the paper please follow the link to SSRN. Here is the... more
This is an English-language review of a volume with selected diaries and correspondence of the legal philosopher, Bódog (Felix) Somló (1873-1920), published in German. To download the paper please follow the link to SSRN.
Here is the main argument.
In case of figures like Somló who are important but not prominent, and beyond the Central European context virtually unknown, book-length publications are rare occasions. This volume makes a crucial step in directing attention to Somló and making aspects of his work known to an international audience. Given the digital open access to Somló's chef d'oeuvre Juristische Grundlehre and the excellent advanced level accompanying material made available in this volume, chances are good for a positive and substantive response from a smaller set of specialists.
If this publication is less likely to generate a strong Somló revival either in Germany or elsewhere, this is not the book’s fault. The first would probably require more evidence that Somló had a distinct and significant voice within the traditional German research line of general jurisprudence (allgemeine Rechtslehre), the second that at least some of his work be available in English. An English edition, together with the recently renewed interest in John Austin in mainstream English-speaking legal theory (suggesting a revision of HLA Hart's devastating criticism of Austin's command theory of law) may also draw some attention to Somló as an early Continental representative of analytical jurisprudence – but this is nothing more than a remote possibility.
Here is the main argument.
In case of figures like Somló who are important but not prominent, and beyond the Central European context virtually unknown, book-length publications are rare occasions. This volume makes a crucial step in directing attention to Somló and making aspects of his work known to an international audience. Given the digital open access to Somló's chef d'oeuvre Juristische Grundlehre and the excellent advanced level accompanying material made available in this volume, chances are good for a positive and substantive response from a smaller set of specialists.
If this publication is less likely to generate a strong Somló revival either in Germany or elsewhere, this is not the book’s fault. The first would probably require more evidence that Somló had a distinct and significant voice within the traditional German research line of general jurisprudence (allgemeine Rechtslehre), the second that at least some of his work be available in English. An English edition, together with the recently renewed interest in John Austin in mainstream English-speaking legal theory (suggesting a revision of HLA Hart's devastating criticism of Austin's command theory of law) may also draw some attention to Somló as an early Continental representative of analytical jurisprudence – but this is nothing more than a remote possibility.
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A book review of legal philosopher Ralf Dreier's memoir. There are few autobiographies by legal theorists of Dreier’s stature, but what makes this unusual life balance particularly interesting for a conservative profession such as legal... more
A book review of legal philosopher Ralf Dreier's memoir. There are few autobiographies by legal theorists of Dreier’s stature, but what makes this unusual life balance particularly interesting for a conservative profession such as legal academia is that it shows how the personal and the political tend to interact, while the personal and the professional don’t.
Research Interests:
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One of the persistent problems surrounding the discipline of law and economics is the role of economic arguments in legal reasoning. This paper is a contribution to this discussion. First, I argue that insights from law and economics, to... more
One of the persistent problems surrounding the discipline of law and economics is the role of economic arguments in legal reasoning. This paper is a contribution to this discussion. First, I argue that insights from law and economics, to the extent that they claim to be directly relevant for legal reasoning, should carry a jurisprudential preface that states that this very relevance is limited and conditional. Second, I introduce the concept of consequence-based reasoning and show that the typical normative claims of law and economics based on economic efficiency can be interpreted as consequence-based arguments of a special kind. Third, the conceivability, feasibility and desirability of the judicial appreciation of general social consequences of legal decisions is considered. Referring to the philosophical, jurisprudential and institutional dimensions of the issue I argue that in a modern constitutional democracy the scope of consequence-based judicial reasoning is limited mainly by the expertise of courts. A more general implication of this analysis is that the impact of law and economics scholarship on law can only be understood through a close look at legal reasoning in general and consequence-based arguments in particular.
Please follow the link to download the working paper version from SSRN
Please follow the link to download the working paper version from SSRN
Taking H.L.A. Hart’s legal theory as a starting point, this paper suggests that the assumptions about human behaviour behind legal doctrines typically combine common sense factual beliefs,moral intuitions, philosophical theories of... more
Taking H.L.A. Hart’s legal theory as a starting point, this paper suggests that the assumptions about human behaviour behind legal doctrines typically combine common sense factual beliefs,moral intuitions, philosophical theories of earlier ages and scientic knowledge.
The paper discusses how Hart's special jurisprudence, i.e. his writings on criminal law and responsibility go beyond and complement his better-known non-evaluative stance in general jurisprudence. According to Hart, the main task of legal theory with respect to legal doctrines is to provide a ‘rational and critical foundation’ for them. This task includes conceptual clarification, ‘enlightenment’ about empirical facts and ‘demystication’ in the form of normative, including moral, argumentation. Hart also argued convincingly that embedded in legal doctrines are assumptions about
human agency and personhood that are potentially in conflict with naturalistic theories about human behaviour.
The paper discusses how Hart's special jurisprudence, i.e. his writings on criminal law and responsibility go beyond and complement his better-known non-evaluative stance in general jurisprudence. According to Hart, the main task of legal theory with respect to legal doctrines is to provide a ‘rational and critical foundation’ for them. This task includes conceptual clarification, ‘enlightenment’ about empirical facts and ‘demystication’ in the form of normative, including moral, argumentation. Hart also argued convincingly that embedded in legal doctrines are assumptions about
human agency and personhood that are potentially in conflict with naturalistic theories about human behaviour.
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Editorial to a special issue on law and style
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This is a short introduction to the first volume of the Central and Eastern European Forum for Legal, Political and Social Theory Yearbook series, entitled Legal and Political Theory in the Post-National Age, ed. Péter Cserne and Miklós... more
This is a short introduction to the first volume of the Central and Eastern European Forum for Legal, Political and Social Theory Yearbook series, entitled Legal and Political Theory in the Post-National Age, ed. Péter Cserne and Miklós Könczöl, Frankfurt: Peter Lang, 2011.
To download the paper please follow the link to SSRN.
To download the paper please follow the link to SSRN.
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This short entry has been written for Springer’s Encyclopedia of the Philosophy of Law and Social Philosophy, ed. M. N. S. Sellers and Stephan Kirste. Here is the abstract: Richard Musgrave coined the terminology of merit wants and merit... more
This short entry has been written for Springer’s Encyclopedia of the Philosophy of Law and Social Philosophy, ed. M. N. S. Sellers and Stephan Kirste. Here is the abstract:
Richard Musgrave coined the terminology of merit wants and merit goods in the 1950s in the context of the theory of public finance. He pointed out that certain goods such as free school lunches or subsidies to low-cost housing did not have pure public or private good characteristics. If a government is dissatisfied with the level of consumption of such goods in the free market, it may intervene to increase consumption, even against the wishes of consumers, to promote their private, as well as some social interests. Mainstream economic theory tends to reduce all normative concerns to individual preferences and analyse any domain of the economy, or perhaps of social life, with the same methods. This methodological stance implies some tension between the normative ideas and the standard conceptual tools of economic thinking about public finance. While the concept of merit goods has played a minor role in modern economics, it has the potential to both reveal the continuity with earlier collectivist conceptions of economic and political life and to open the stage for ethical discourses that go beyond rigid versions of libertarianism and welfarism. Hence the continuing relevance of Musgrave’s conceptual innovation for social and political theorizing.
Richard Musgrave coined the terminology of merit wants and merit goods in the 1950s in the context of the theory of public finance. He pointed out that certain goods such as free school lunches or subsidies to low-cost housing did not have pure public or private good characteristics. If a government is dissatisfied with the level of consumption of such goods in the free market, it may intervene to increase consumption, even against the wishes of consumers, to promote their private, as well as some social interests. Mainstream economic theory tends to reduce all normative concerns to individual preferences and analyse any domain of the economy, or perhaps of social life, with the same methods. This methodological stance implies some tension between the normative ideas and the standard conceptual tools of economic thinking about public finance. While the concept of merit goods has played a minor role in modern economics, it has the potential to both reveal the continuity with earlier collectivist conceptions of economic and political life and to open the stage for ethical discourses that go beyond rigid versions of libertarianism and welfarism. Hence the continuing relevance of Musgrave’s conceptual innovation for social and political theorizing.
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Short comment on economic methodology, inspired by “The Two Blades of Occam’s Razor in Economics: Logical and Heuristic” by Giandomenica Becchio’
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Taking Guido Calabresi’s discussion of preferences and value judgements in "The Future of Law and Economics" as a starting point, this paper analyses some conceptual difficulties, epistemic benefits and normative uses of parsimonious... more
Taking Guido Calabresi’s discussion of preferences and value judgements in "The Future of Law and Economics" as a starting point, this paper analyses some conceptual difficulties, epistemic benefits and normative uses of parsimonious economic analyses of “tastes and values.”
First, the paper shows that it is not only possible to analyse and model all the richness of “tastes and values” in terms of rational choice theory with intellectual honesty and epistemic benefit. In fact, economists and economically inspired legal scholars have been doing this for a while.
Second, it discusses three arguments that economists can mount in support of parsimonious models.
Third, it shows that in spite of these benefits the merits of such an exercise in parsimony do not always clearly outweigh its drawbacks.
As a conclusion, the paper distinguishes three types of limits of such parsimonious modelling: conceptual, empirical and normative.
First, the paper shows that it is not only possible to analyse and model all the richness of “tastes and values” in terms of rational choice theory with intellectual honesty and epistemic benefit. In fact, economists and economically inspired legal scholars have been doing this for a while.
Second, it discusses three arguments that economists can mount in support of parsimonious models.
Third, it shows that in spite of these benefits the merits of such an exercise in parsimony do not always clearly outweigh its drawbacks.
As a conclusion, the paper distinguishes three types of limits of such parsimonious modelling: conceptual, empirical and normative.
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This paper discusses a few meta-theoretical questions about Behavioural Law and Economics (BLE) in order to better understand both its popularity and the criticisms it has received. It argues that BLE provides a litmus test to reveal... more
This paper discusses a few meta-theoretical questions about Behavioural Law and Economics (BLE) in order to better understand both its popularity and the criticisms it has received. It argues that BLE provides a litmus test to reveal dividing lines, manifest latent tensions, and polarises debates between various camps or traditions in both positive and normative (law and) economics, thus making epistemic and methodological commitments of economists more visible. These dividing lines include the methodological character of rationality assumptions, naturalistic and mentalist views of human behaviour, and the normative force and relevance of individual preferences, autonomy and objective metrics of welfare.
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Some of the scholarly literature on nudges seems to assume, without giving it much further thought, that nudges represent an extra-legal form of regulation. Others routinely assume nudges to be legal, i.e. capable of being authorized and... more
Some of the scholarly literature on nudges seems to assume, without giving it much further thought, that nudges represent an extra-legal form of regulation. Others routinely assume nudges to be legal, i.e. capable of being authorized and implemented in accordance with the law. Perhaps the term ‘law’ is used in different senses in these two contexts. But the issue may run deeper. Are nudges legal or extra-legal? In other words: do nudges represent a distinct mode of governance, with a corresponding distinct normativity? In this paper, I take a closer look at what makes a mode or technique of governance legal and query whether and how nudges can meet these criteria.
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This is a short review of Behavioural Public Policy, ed. Adam Oliver (Cambridge: Cambridge University Press 2013).
To download the paper please follow the link to SSRN.
To download the paper please follow the link to SSRN.
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A review of the posthumous volume of collected papers by Hungarian sociologist-economist-political scientist László Csontos (1953-1997) Ismeretelmélet, társadalomelmélet, társadalomkutatás (Epistemology, Social Theory, Social Research),... more
A review of the posthumous volume of collected papers by Hungarian sociologist-economist-political scientist László Csontos (1953-1997) Ismeretelmélet, társadalomelmélet, társadalomkutatás (Epistemology, Social Theory, Social Research),
summarising how rational choice theory can provide a sound methodological basis for all social sciences.
summarising how rational choice theory can provide a sound methodological basis for all social sciences.
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This is an obituary for László Bertalan (1941–2001), Hungarian sociologist, expert on Max Weber and analytical philosophy of social sciences. It also reports on a conference organised to commemorate his work and contains a full... more
This is an obituary for László Bertalan (1941–2001), Hungarian sociologist, expert on Max Weber and analytical philosophy of social sciences. It also reports on a conference organised to commemorate his work and contains a full bibliography.
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This is an editorial introduction to the thematic section "The Concept of Welfare: Politics, Ethics and Economics", International Journal of Social Economics 42 (2015) 5. The section comprises 3 papers presented at the 4th MetaLawEcon... more
This is an editorial introduction to the thematic section "The Concept of Welfare: Politics, Ethics and Economics", International Journal of Social Economics 42 (2015) 5. The section comprises 3 papers presented at the 4th MetaLawEcon workshop in Hull, in 2013. Please follow the link to the full text online
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This paper ventures into the problematic of “immoral” transactions by combining historical, doctrinal and economic analysis. Focusing on cases and doctrines in ancient Roman law, our goal is to show how Roman lawyers found reasonable... more
This paper ventures into the problematic of “immoral” transactions by combining historical, doctrinal and economic analysis. Focusing on cases and doctrines in ancient Roman law, our goal is to show how Roman lawyers found reasonable answers to issues which, in spite of obvious differences in economic and cultural context, can teach some lessons for our modern understanding of contract regulation.
We reconstruct how and why the term immorality (contra bones mores) became a general clause of Roman law in a relatively short time; discuss what kind of cases were solved with reference to this clause; and analyse how this clause shows the practical rationality of Roman lawyers. Finally, we raise some substantive and methodological points where this historical case can provide insights for the economic analysis of the interactions of law and morality.
We reconstruct how and why the term immorality (contra bones mores) became a general clause of Roman law in a relatively short time; discuss what kind of cases were solved with reference to this clause; and analyse how this clause shows the practical rationality of Roman lawyers. Finally, we raise some substantive and methodological points where this historical case can provide insights for the economic analysis of the interactions of law and morality.
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... Search All Sites. RSS Feed. Print this page. Bookmark. Articles in Journals «Previous Next». Reasons for Limiting Freedom of Contract: Questions of Philosophy and Policy. Peter Cserne, University of Hamburg. Suggested Citation. Peter... more
... Search All Sites. RSS Feed. Print this page. Bookmark. Articles in Journals «Previous Next». Reasons for Limiting Freedom of Contract: Questions of Philosophy and Policy. Peter Cserne, University of Hamburg. Suggested Citation. Peter Cserne. ...
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This entry [a revised version of the original from 2014] provides an overview of the economic justifications and limitations of the principle of freedom of contract. Freedom of contract is a principle of law, expressing three related... more
This entry [a revised version of the original from 2014] provides an overview of the economic justifications and limitations of the principle of freedom of contract.
Freedom of contract is a principle of law, expressing three related ideas: Parties should be free to choose their contracting partners (“party freedom”), to agree freely on the terms of their agreement (“term freedom”), and where agreements have been freely made, parties should be held to their bargains (“sanctity of contract”). A key contribution of economics to contract law scholarship has been to systematize and rationalize both the principle and its limits in terms of social welfare.
Freedom of contract is a principle of law, expressing three related ideas: Parties should be free to choose their contracting partners (“party freedom”), to agree freely on the terms of their agreement (“term freedom”), and where agreements have been freely made, parties should be held to their bargains (“sanctity of contract”). A key contribution of economics to contract law scholarship has been to systematize and rationalize both the principle and its limits in terms of social welfare.
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This is a chapter published in The Routledge Handbook of the Philosophy of Paternalism (ed. Kalle Grill and Jason Hanna). I suggest a classification of contract law rules and doctrines that are potentially or prima facie paternalistic, as... more
This is a chapter published in The Routledge Handbook of the Philosophy of Paternalism (ed. Kalle Grill and Jason Hanna). I suggest a classification of contract law rules and doctrines that are potentially or prima facie paternalistic, as constitutive, procedural, informational and substantive limits to freedom of contract. I also discuss non-paternalistic rationalisations of some of these rules in terms of justice or as responses to externalities and collective action problems.
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Freedom of contract is a principle of law, expressing three related ideas: parties should be free to choose their contracting partners (“party freedom”), to agree freely on the terms of their agreement (“term freedom”), and where... more
Freedom of contract is a principle of law, expressing three related ideas: parties should be free to choose their contracting partners (“party freedom”), to agree freely on the terms of their agreement (“term freedom”), and where agreements have been freely made, parties should be held to their bargains (“sanctity of contract”). This entry, published in the online Encyclopedia of Law and Economics (ed. J. Backhaus, Springer 2014) provides an overview of the economic justifications and limitations of this principle.
To download the paper please follow the link to SSRN.
To download the paper please follow the link to SSRN.
Research Interests: Law, Contracts, Economics, Contract Law, Law and Economics, and 3 moreContract Theory, Contract, and Freedom
An important characteristic of necessity cases is that ex ante and sometimes even ex post both parties have an interest in upholding the contract. From an economic perspective, the policy objective of regulating necessity is to give... more
An important characteristic of necessity cases is that ex ante and sometimes even ex post both parties have an interest in upholding the contract. From an economic perspective, the policy objective of regulating necessity is to give optimal incentives for precaution, search and rescue. These incentive effects have been widely discussed in the law and economics literature, the received view being that price control based on the costs of the rescue plus a small reward provide optimal incentives. In this paper we argue that the received view is unwarranted. Our model suggests that in many cases the socially efficient contract price is higher than the rescue costs. To be sure, due to serious information problems the practical implementation of this theoretical optimum is much more difficult than the cost-plus price setting supported by the received view. While the policy implications of our model are rather tentative we suggest that the judicial costs of estimating policy variables should be taken into account. A second objective of this paper is to argue for an economic interpretation of the term ‘necessity’ in contract law. Instead of various substantive criteria suggested in the philosophical literature we suggest defining the term by working backwards from the possible remedies. The excuse of necessity should be available for contracting parties when, all things considered, a judicial control (modification) of the contract price is desirable. Necessity is thus “defined” by what courts can and should do.
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This is a chapter in Contract Law and Economics, ed. Gerrit de Geest (Cheltenham: Elgar 2011) [Elgar Encyclopedia of Law and Economics 2nd ed.]. The goal of the chapter is to provide an overview of the economic analysis of contractual... more
This is a chapter in Contract Law and Economics, ed. Gerrit de Geest (Cheltenham: Elgar 2011) [Elgar Encyclopedia of Law and Economics 2nd ed.]. The goal of the chapter is to provide an overview of the economic analysis of contractual duress. The focus is on the distinctive features of an economic perspective on the duress doctrine, as developed in the theoretical literature. Some relevant doctrines and non-economic theories of duress are also briefly discussed.
To download the paper please follow the link to SSRN.
To download the paper please follow the link to SSRN.
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Deviations from the common intentions of the parties in contract interpretation is sometimes attributed to “an appetite for benefiting whichever of the parties is perceived to be in a weaker bargaining position”. In this paper I argue... more
Deviations from the common intentions of the parties in contract interpretation is sometimes attributed to “an appetite for benefiting whichever of the parties is perceived to be in a weaker bargaining position”. In this paper I argue that there is more reasonable explanation (justification) for at least some of these deviations. The contra proferentem doctrine is an information-forcing rule that can promote optimal completeness and clarity in contracts. Whether the contract is standardized or not, other things being the same, the risk of ambiguity in contractual language should be borne by the party who could more cheaply avoid it, and that is usually the party who selected or drafted the clause rather than the party to whom it was presented. On the other hand, it is argued that interpretative presumptions are ill-suited for ambitious policy purposes.
To download the paper please follow the link to SSRN.
To download the paper please follow the link to SSRN.
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This paper (in Hungarian) analyses H.L.A. Hart’s views on the epistemic character of the law’s assumptions about human behaviour, as articulated in Causation in the Law and Punishment and Responsibility. Hart suggests that the assumptions... more
This paper (in Hungarian) analyses H.L.A. Hart’s views on the epistemic character of the law’s assumptions about human behaviour, as articulated in Causation in the Law and Punishment and Responsibility. Hart suggests that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, and philosophical theories of earlier ages with sound moral principles, and empirical knowledge. An important task of legal theory is to provide a ‘rational and critical foundation’ for these doctrines. This does not only imply conceptual clarification in light of an epistemic ideal of objectivity but also involves legal theorists in ‘enlightenment’ about empirical facts, ‘demystification’ of metaphysical obscurities, and substantive normative reasoning in terms of practical reasonableness. The confrontation of the implicit assumptions behind legal rules and doctrines with findings of psychology and neuro-sciences raises conceptual and normative questions about law as a regulatory technique and a specific mechanism of social control.
A slightly different English version of the paper is also available among "Papers"
A slightly different English version of the paper is also available among "Papers"
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Commentary on the constitutional duty to pay taxes and other public duties under the pre-2012 Hungarian Constitution. In Hungarian.
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Law and legal science have played a significant, but hitherto underestimated role in Weber's life, academic, professional and personal. Trained as a lawyer, he drew upon an existing vocabulary of 19th century German legal scholarship and... more
Law and legal science have played a significant, but hitherto underestimated role in Weber's life, academic, professional and personal. Trained as a lawyer, he drew upon an existing vocabulary of 19th century German legal scholarship and adapted from it, more or less implicitly a large number of conceptual and methodological tools for his sociological projects. The goal of this paper is to identify and evaluate these complex links between Weberian sociology and contemporary legal scholarship, with special emphasis on Jhering's and Jellinek's theories.
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A synthetic overview of the political theorist István Bibó's (1911--1979) ideas on captalism and socialism (in Hungarian).
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A comparison of Wilhelm Röpke és Istvan Bibó's political and economic views (in Hungarian)
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This paper (in Hungarian) provides an overview of the methods and some results of constitutional economics, contrasting it with doctrinal and moral theories of constitutional law.
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This contribution to a conference on the "heritage" of Marxist legal theory in Hungary (1) briefly summarises the views of Hungarian Marxists on law as the "superstructure" over an economics "base" and (2) the debates on the systemic and... more
This contribution to a conference on the "heritage" of Marxist legal theory in Hungary
(1) briefly summarises the views of Hungarian Marxists on law as the "superstructure" over an economics "base" and
(2) the debates on the systemic and doctrinal role of "economic law" in the legal system
(3) argues that Marxist legal theory and Law and Economics, while both aim at "demystifying" law, fundamentally differ in terms of both method and substance
(4) recounts how in the 1980s Analytical Marxists who shared the commitment of Law and Economics to rational choice theory, (in Jon Elster's words) "engaged in a form of intellectual autophagy", criticising central tenets of Marxism "so intensely that at the end very little was left."
(1) briefly summarises the views of Hungarian Marxists on law as the "superstructure" over an economics "base" and
(2) the debates on the systemic and doctrinal role of "economic law" in the legal system
(3) argues that Marxist legal theory and Law and Economics, while both aim at "demystifying" law, fundamentally differ in terms of both method and substance
(4) recounts how in the 1980s Analytical Marxists who shared the commitment of Law and Economics to rational choice theory, (in Jon Elster's words) "engaged in a form of intellectual autophagy", criticising central tenets of Marxism "so intensely that at the end very little was left."
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Close reading and contextualisation (academic and ideological) of a 1936 paper by Hungarian legal philosopher István Losonczy (1908-1980) on crimes committed by omission, with special emphasis on causation by ommission and the... more
Close reading and contextualisation (academic and ideological) of a 1936 paper by Hungarian legal philosopher István Losonczy (1908-1980) on crimes committed by omission, with special emphasis on causation by ommission and the anti-liberal idea called "universalism".
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A comparative law and economics analysis of the contra proferentem doctine of contract interpretation, in Hungarian.
A slightly different English version is also available among "Papers".
A slightly different English version is also available among "Papers".
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How is the global epistemic community of legal philosophers structured or patterned? How and why is the epistemic community of legal theorists unified/divided? What are the lines of division that generate exclusion/inclusion,... more
How is the global epistemic community of legal philosophers structured or patterned? How and why is the epistemic community of legal theorists unified/divided? What are the lines of division that generate exclusion/inclusion, centre/periphery?
These are some of the questions we will discuss in a special workshop at the IVR2022 world congress of legal philosophy.
Paper proposals can be submitted by 30 April 2022.
These are some of the questions we will discuss in a special workshop at the IVR2022 world congress of legal philosophy.
Paper proposals can be submitted by 30 April 2022.
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Draft Programme for the 11th MetaLawEcon Workshop, entitled "What Do We Value? Perspectives from Law, Economics, and Law & Economics" The workshop will be held online, hosted by YSI on 19th-20th June 2020. Details and registration:... more
Draft Programme for the 11th MetaLawEcon Workshop, entitled "What Do We Value? Perspectives from Law, Economics, and Law & Economics"
The workshop will be held online, hosted by YSI on 19th-20th June 2020.
Details and registration: https://ysi.ineteconomics.org/project/5ea75571c072b17571222fb1
Feel free to forward this to colleagues who might be interested.
The workshop will be held online, hosted by YSI on 19th-20th June 2020.
Details and registration: https://ysi.ineteconomics.org/project/5ea75571c072b17571222fb1
Feel free to forward this to colleagues who might be interested.
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10th MetaLawEcon workshop, 5-6 July 2019, Bucerius Law School, Hamburg, Germany Convenors: Dr. Péter Cserne and Prof. Dr. Hans-Bernd Schäfer Keynote speakers: Prof. Bruce Chapman (University of Toronto): “Interpersonal Accountability... more
10th MetaLawEcon workshop, 5-6 July 2019, Bucerius Law School, Hamburg, Germany
Convenors: Dr. Péter Cserne and Prof. Dr. Hans-Bernd Schäfer
Keynote speakers:
Prof. Bruce Chapman (University of Toronto): “Interpersonal Accountability and Impersonal Maximization: Two Perspectives on the Theory of Private Law”
Prof. Dr. Stefan Grundmann (Humboldt University / EUI): “Pluralist Private Law Theory - Why and How”
If you want to present a paper, please submit an abstract of about 500 words for consideration to metalawecon@gmail.com by Friday, 15 March 2019. Papers on any aspect of the role of economics and philosophy in private law scholarship will be considered.
Convenors: Dr. Péter Cserne and Prof. Dr. Hans-Bernd Schäfer
Keynote speakers:
Prof. Bruce Chapman (University of Toronto): “Interpersonal Accountability and Impersonal Maximization: Two Perspectives on the Theory of Private Law”
Prof. Dr. Stefan Grundmann (Humboldt University / EUI): “Pluralist Private Law Theory - Why and How”
If you want to present a paper, please submit an abstract of about 500 words for consideration to metalawecon@gmail.com by Friday, 15 March 2019. Papers on any aspect of the role of economics and philosophy in private law scholarship will be considered.
Research Interests:
The 9th MetaLawEcon workshop, entitled Economic Law and Economic Theory: Defining the Domain of "Law and Economics" will be held on 12-13 Dec 2018 at the EUI near Florence. The aim of the workshop is to discuss how the relationship... more
The 9th MetaLawEcon workshop, entitled Economic Law and Economic Theory: Defining the Domain of "Law and Economics" will be held on 12-13 Dec 2018 at the EUI near Florence.
The aim of the workshop is to discuss how the relationship between economic law and economics can be accounted for theoretically. It will also provide a forum for reflection on how this interaction plays out in legislative, regulatory, judicial and academic practice. A better understanding of the dynamic between economic law and economic theory not only contributes to a clearer semantics of the term "economic" but yields important insights about the potential and limitations of formulating "Law and Economics" as a distinct approach to law.
See the attached CfP for further details and some indicative questions we are planning to discuss. Please spread the news and submit your paper proposal by 30 June!
The aim of the workshop is to discuss how the relationship between economic law and economics can be accounted for theoretically. It will also provide a forum for reflection on how this interaction plays out in legislative, regulatory, judicial and academic practice. A better understanding of the dynamic between economic law and economic theory not only contributes to a clearer semantics of the term "economic" but yields important insights about the potential and limitations of formulating "Law and Economics" as a distinct approach to law.
See the attached CfP for further details and some indicative questions we are planning to discuss. Please spread the news and submit your paper proposal by 30 June!
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Call for papers, 8th MetaLawEcon conference, Helsinki, 9-10 Nov 2017
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Regulatory Frameworks for Sustainable Consumption Friday 25th May 2018 9.30am – 4.30pm Seminar Rooms 1 and 2, Nidd Building, University of Hull The conference will address two main questions: -What are the effective policy instruments... more
Regulatory Frameworks for Sustainable Consumption
Friday 25th May 2018
9.30am – 4.30pm
Seminar Rooms 1 and 2, Nidd Building, University of Hull
The conference will address two main questions:
-What are the effective policy instruments and measures to support sustainable consumption?
-Which ethical, political and legal conflicts result from these policies, with respect to the idea of autonomous decision making and good governance?
The conference is hosted by the Faculty of Business, Law and Politics at the University of Hull.
Friday 25th May 2018
9.30am – 4.30pm
Seminar Rooms 1 and 2, Nidd Building, University of Hull
The conference will address two main questions:
-What are the effective policy instruments and measures to support sustainable consumption?
-Which ethical, political and legal conflicts result from these policies, with respect to the idea of autonomous decision making and good governance?
The conference is hosted by the Faculty of Business, Law and Politics at the University of Hull.
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Programme of a conference organised by the Institute of Applied Ethics, University of Hull, for the Humber Business Week
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Conference, Hamburg, Warburg Haus, 7-8 Sep 2017 What are the adequate legal categories to assess informatory interventions in a complex consumer democracy? Which ethical and legal conflicts result from these policies, in particular with... more
Conference, Hamburg, Warburg Haus, 7-8 Sep 2017
What are the adequate legal categories to assess informatory interventions in a complex consumer democracy? Which ethical and legal conflicts result from these policies, in particular with respect to the idea of autonomous decision making and, regarding digital tools of government, privacy, and data protection?
What are the adequate legal categories to assess informatory interventions in a complex consumer democracy? Which ethical and legal conflicts result from these policies, in particular with respect to the idea of autonomous decision making and, regarding digital tools of government, privacy, and data protection?
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Post-communist Central and Eastern European legal cultures in general, and judicial style in particular, are often characterized as formalistic. This article reconstructs two ideological narratives about the formalist heritage of CEE... more
Post-communist Central and Eastern European legal cultures in general, and judicial style in particular, are often characterized as formalistic. This article reconstructs two ideological narratives about the formalist heritage of CEE judiciary, variants of which have dominated academic and policy debates about rule of law, judicial reforms and European integration in the last three decades. As the debate becomes linked to deeply rooted and long-term, sometimes traumatic issues of national and political identity, patterns of ideological thinking resurface easily. While it is symptomatic of CEE political cultures that the debate on judicial method has become a battleground for fierce controversies about collective (political) identity, arguably this exemplifies a broader phenomenon. Other weak or peripheral national cultures also face and struggle with issues of collective identity and inferiority complexes which may resurface in professional discourses and seemingly unpolitical domains.
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Through a close reading of Konrad Zweigert's 1961 essay and related writings, the paper discusses his use of the term ‘style’ in the classification of legal families, making three arguments. First, Zweigert's use of style is... more
Through a close reading of Konrad Zweigert's 1961 essay and related writings, the paper discusses his use of the term ‘style’ in the classification of legal families, making three arguments.
First, Zweigert's use of style is methodologically naive. He uses style as a cluster concept, grouping an eclectic mix of features characteristic for the history, language, techniques, doctrines and values of national laws. His explicit sources seem to have provided associative and superficial inspiration rather than a theoretical basis for this terminological move.
Second, Zweigert's methodology could have been improved by using more rigorous style concepts – and he seems to have been aware of the necessary theoretical resources.
Third, such a commitment to a humanistic and cultural approach to comparative law is not easily reconciled with the blunt functionalism of Zweigert's programmatic methodological statements. His style doctrine is only compatible with a weak version of functionalism as a ‘methodological metaphor’: the version he actually espoused.
First, Zweigert's use of style is methodologically naive. He uses style as a cluster concept, grouping an eclectic mix of features characteristic for the history, language, techniques, doctrines and values of national laws. His explicit sources seem to have provided associative and superficial inspiration rather than a theoretical basis for this terminological move.
Second, Zweigert's methodology could have been improved by using more rigorous style concepts – and he seems to have been aware of the necessary theoretical resources.
Third, such a commitment to a humanistic and cultural approach to comparative law is not easily reconciled with the blunt functionalism of Zweigert's programmatic methodological statements. His style doctrine is only compatible with a weak version of functionalism as a ‘methodological metaphor’: the version he actually espoused.
Research Interests:
Research Interests:
Research Interests:
The Rule of Law and the Challenges for Jurisprudence, eds. Peter CSERNE, Miklos KÖNCZÖL and Marta SONIEWICKA (Frankfurt, etc.: Peter Lang 2014) 148 pp. ISBN 978-3-631-64381-5 is the third volume of the Central and Eastern European Forum... more
The Rule of Law and the Challenges for Jurisprudence, eds. Peter CSERNE, Miklos KÖNCZÖL and Marta SONIEWICKA (Frankfurt, etc.: Peter Lang 2014) 148 pp. ISBN 978-3-631-64381-5 is the third volume of the Central and Eastern European Forum for Legal, Political and Social Theory Yearbook series, collecting papers presented at the 2012 annual Forum conference in Celje, Slovenia. Over the last two decades scholars and citizens in Central and Eastern Europe had more than enough opportunity to realise that neither democracy nor the rule of law can be taken for granted. Such a realisation also means that if they want to think and speak clearly about or take a stand for their political and legal ideals, they need to reflect on them constantly, and conceptualise them in novel ways, by questioning entrenched lines of argument and problematising established patterns of thought. The contributors of this volume discuss a wide range of subjects from jurisprudential methodology and legal reasoning through democracy and constitutional courts to rights and criminal justice, raising questions and suggesting new ideas on «The Rule of Law and the Challenges to Jurisprudence» in Central and Eastern Europe and beyond. Please follow the link to the publisher's website to access the book
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Research Interests:
One of the persistent problems surrounding the discipline of law and economics is the role of economic arguments in legal reasoning. The problem has been extensively discussed in the literature but has not been ultimately solved. The... more
One of the persistent problems surrounding the discipline of law and economics is the role of economic arguments in legal reasoning. The problem has been extensively discussed in the literature but has not been ultimately solved. The present paper is a contribution to this ongoing discussion. The argument goes as follows. First, I will argue that insights from law and economics, to the extent that they claim to be directly relevant for legal reasoning, should carry a jurisprudential preface that states that this very relevance is limited and conditional. Secondly, I will introduce the concept of consequence-based reasoning and show that the typical normative claims of law and economics based on economic efficiency can be interpreted as consequence-based arguments of a special kind. Finally, in the analytical core of the paper, the conceivability, feasibility and desirability of the judicial appreciation of general social consequences of legal decisions will be considered. Referring to the philosophical, jurisprudential and institutional dimensions of the issue I will argue that in a modern constitutional democracy the scope of consequence-based judicial reasoning is limited mainly by the expertise of courts. A more general implication of this analysis is that the impact of law and economics scholarship on law can only be understood through a close look at legal reasoning in general and consequence-based arguments in particular.