Table of Contents

Law and the State

Law and the State

A Political Economy Approach

New Horizons in Law and Economics series

Edited by Alain Marciano and Jean-Michel Josselin

Law and the State provides a political economy analysis of the legal functioning of a democratic state, illustrating how it builds on informational and legal constraints. It explains, in an organised and thematic fashion, how competitive information enhances democracy while strategic information endangers it, and discusses how legal constraints stress the dilemma of independence versus discretion for judges as well as the elusive role of administrators and experts.

Chapter 1: Introduction Making sense of the state: a political economy approach

Jean-Michel Josselin and Alain Marciano


Jean-Michel Josselin and Alain Marciano 1 INTRODUCTION Even if mainly devoted to private law, the law and economics literature has certainly not neglected constitutional issues. In particular, the intricate relation between law and the state has been frequently analysed, either from a positive point of view or for normative purposes. Thus, vexed questions were raised as to the necessity to ground the legitimacy of the state on rules of law or, reciprocally, as to the need to justify law in the state. To provide tentative and partial answers to these questions, the different chapters that constitute this book employ the specific tools of a political economy approach. These will of course relate to the standard programme of constrained maximization, but in which ‘institutions matter’. The first step is then the objective function. When organizing the seminars leading to this book, we manifestly did not have to be specific about an attachment to a democratic state as an objective. Strikingly, the contributors dealing with this foundational concern (how to shape a democratic state) all focused on the constraint which delineates the democratic state, namely the informational constraint. Publicity of law and of decisions, transmission, manipulation and creation of information are some of the many facets that contribute to the delicate balance between democracy as freedom and democracy as order (Part I). In this respect, law and lawfulness prove to be media as strong as they are to be handled carefully. Indeed, legal rules play a similar role as...