Divergente Evolution des Rechtsdenkens - Von amerikanischer Rechtsökonomie und deutscher Dogmatik

Law and Economics has become an integral part of U. S. scholarship, while its role remains comparatively limited in the German-speaking legal debate. We propose a two-pronged explanation for this divergence of legal thought which rests on the rise and fall of legal realism and the rejection of utilitarian ethics. Until the late 19th century, the interpretative methodology of the respective legal systems showed remarkable parallels. Both the Langdellian approach as well as German conceptual jurisprudence focused on an internal perspective of the law and excluded external elements from "legal science". This approach was attacked by both the Free law school and its American counterpart, legal realism, during the early decades of the Twentieth Century. Scholars essentially argued that the law was indeterminate to some extent and that the use of traditional legal methods disguised the true reasons for a particular interpretation of the law, e.g. in the form of a judicial decision. Both schools emphasized that decisions were inevitably based on policy considerations at least to some extent. Legal realism transformed American legal thought into a discourse focusing on policy and the consequences of the law in which extra-legal considerations, including economic analysis, take a predominant position. By contrast, German legal theory focused on the development of interpretative methods and emphasized the internal coherence of the legal system. Policy remained largely excluded from scholarly analysis. Differences in the philosophical roots can explain why law and economics prevailed over other theories that intended to fi ll the void torn open by legal realism and why it today takes such a prominent position in U.S. legal academia. The widespread acceptance of utilitarianism in American academic circles provided a fertile groundwork for welfarist, consequentialist approaches such as law and economics.