Giving Law and Economics a Place in Legal Doctrine and Methodology

The text presents different strategies for institutionalizing social sciences in judicial methodology. Law has invented a successful method for treating the corpus of law as if it were a rational, coherent entirety. The legal system counterfactually imposes this methodological imperative on policy output that is in reality incomplete and inconsistent. This makes it possible to evaluate a given rule by linking up structures and making well-tested legal differentiations available throughout the entire corpus of law. But this method has no inbuilt technique with which to analyse reality. That calls for the social sciences. Their integration faces complications though, which law has to normatively digest. To give an example, different positive theories will provide for varying results. Approaches compete, and the scientific community has not made up its mind about which one deserves the most credit. If a lawyer cannot claim that the theory he chooses is the only valid one out there, he has to exploit the normative implications of the different theories by relatively comparing the hypothetical outcomes. There is a choice to be made and argued for. This should not imply that any individual lawyer could meet this task alone. To reflect the normative repercussions of the relevant theories is a regulative idea just like conceptualising a coherent body of law. Structurally these are methodological demands, which legal actors can only fulfil as a collective. Establishing separate discourses within the legal system provides one example, of how these collective tasks can be institutionalised. One academic discourse is concerned with exploring the regulatory models underpinning future laws and the hypothetical interpretations of given norms. Here, different theories can be tested; new normative contact points can be found. Finally legal doctrine is conceptually developed to precisely go with the methodology that the practicing lawyer uses. Applying the rule then is the task of the practicing discourse. The attorney or judge can use his hermeneutical, case-comparing method, which has its strength in adapting the rule to the individual cases. He can use doctrine as a decision-making program, which functions from the perspective of the primary discourse like a normative heuristic, with the regulatory theory remaining in the background and working blind. Everyone stands on the shoulders of others