Never the Twain Shall Meet? A Critical Perspective on Cultural Limits Between Internal Continental Dogmatism and Consequential US-Style Law and Economics Theory

Why could law and economics theory (hereinafter L&E) develop to become the most prominent theory in US legal scholarship, while still playing only a minor role in Europe? As this article is also meant as a gloss, as “a propagandist tracet”,1 I herein make use of my academic freedom to write freely also on controversial issues. If there is a grain of truth in what I am proposing here, it might help to de-mystify L&E theory and classify it to what it to my mind, really is: one very convincing and influential theory, but only one theory out of many that might explain the law. I will argue that it is not only the persuasiveness of the theory that helped to establish the continental divide in legal thought. But that cultural reasons also contributed to a significant extent. Some of them, such as World War II, are external social factors. Other factors, such as the influence of the Olin foundation, resulted from internal factors. As Grechenig and Gelter convincingly explain, at the beginning of the movement in the nineteenth and the early twentieth century the developments were comparable in Europe and the USA. The Nazi regime and World War II then marked a turning point, which resulted in reservations against L&E thinking. Europe responded with a renaissance of classical legal thought (hereinafter CLT), while in the USA, the L&E theory developed further unhindered. This development, however, was not autonomous but influenced by man-made culture on both sides. Only recently, arguments from L&E are able to grasp hold in Europe. Interestingly, this development goes hand in hand with the upcoming of a new generation that has not been influenced by World War II. Furthermore, this generation benefited greatly from incentive mechanisms to grapple with American legal thinking through funding and the legal society likewise. The fall of the Berlin wall, I will argue, marks a second point in history, which brings L&E arguments to Europe and classical legal thought to the USA. I will close with a call for a specific EU-based idea of L&E, which starts from the outset as a method freed from the ideological struggles that accompanied the introduction of L&E in the USA. It shall live towards the aim of establishing both, a free and social market econom