Chapter 11: On the Difference of Methodology in Jurisprudence and Economics – Comment on Künzler
11. On the difference of methodology in jurisprudence and economics – comment on Künzler Iwakazu Takahashi* 1 INTRODUCTION Dr Künzler’s chapter1 on the economic content of competition law reaches a conclusion that I share. He concludes that: According to the ‘more economic approach’, the function and purpose of competition law shall no longer be that of ensuring the freedom to compete but rather the promotion of economic and social welfare.2 [. . .] the underlying hypothesis of the utopian economic approach, that economic welfare can only be measured on the scale of ‘economic efficiency’, can hardly be tenable.3 The role of competition policy should therefore rather consist of upholding a ‘regulatory framework’ by formulating certain ‘rules of play’ and thereby ensuring just process or fair play.4 The purpose of competition law and policy (freedom or economic efficiency) has been a matter of dispute for the past 30 years. The debate started in the USA in the 1980s and gradually permeated the thinking on EU competition law in the late 1990s. The discussion of this debate must first make clear the difference in the methodology between jurisprudence Professor of Law, Faculty of Law, Meiji University, Tokyo, Japan. This comment is based on the longer version, the paper ‘Economic Content of Competition Law: In Defense of a Pragmatic Approach to Competition Policy’ by A Künzler, presented at the 5th ASCOLA Conference in Bonn. 2 A Künzler, ‘Economic Content of Competition Law: In Defense of a Pragmatic Approach to Competition Policy’. 3 A...
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