Harmonising Hayek and Posner: revisiting Posner, Hayek & the economic analysis of Law

Marianne Ojo

MPRA Paper from University Library of Munich, Germany

Abstract: This paper is aimed at highlighting Posner and Hayek’s consensus on the importance of decentralization, as well as the significance of the incorporation of non-legal actors as tools for facilitating the efficient allocation of resources in common law. In addition to highlighting the consensus on the views of Posner and Hayek, in respect of de centralization of information within the judicial process, this paper aims to address why de centralization serves as a vital tool in facilitating the objective of common law as an efficiency allocation mechanism. Whilst it is argued that lower court judges may not and should not be given such flexibility to make and unmake the law, the principles and decisions of law lords acting in the capacity of legislature, have also illustrated in several leading cases that the flexibility intended by Parliament may be misinterpreted and wrongly applied in future cases. This has also resulted in the criticism of extrinsic aids to statutory interpretation. This paper analyses and expands on these observations.

Keywords: legitimate expectations; certainty; flexibility; judicial precedents; statutory interpretation; allocative efficiency; Pepper v Hart; Daubert; common law; regulatory capture; regulation (search for similar items in EconPapers)
JEL-codes: D8 E3 G3 K2 M4 (search for similar items in EconPapers)
Date: 2015-06
New Economics Papers: this item is included in nep-hpe, nep-law and nep-mac
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https://mpra.ub.uni-muenchen.de/64780/1/MPRA_paper_64780.pdf original version (application/pdf)
https://mpra.ub.uni-muenchen.de/84114/1/MPRA_paper_64780.pdf revised version (application/pdf)

Related works:
Working Paper: Harmonising Hayek and Posner: revisiting Posner, Hayek & the economic analysis of Law (2015)
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Persistent link: https://EconPapers.repec.org/RePEc:pra:mprapa:64780

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