Boudewijn Bouckaert and Gerrit De Geest
© Copyright 1999 Boudewijn Bouckaert and Gerrit De Geest
The Encyclopedia of Law and Economics is an ambitious reference work that attempts to survey the whole law and economics literature in nearly 5,000 pages. Most entries contain two elements: a review of the literature, written by an authority in the field, and a quasi complete bibliography (not just a selection).
Economic analysis of law has expanded dramatically in recent years. In many branches, the literature is now at a 'mature' stage, where scholars agree on basic concepts, theories and even on policy recommendations. Yet, this scholarship does not reach many policymakers, lawyers or judges. Outside the USA, it even does not seem to reach law professors. This is not so much due to the fact that policymakers, judges or law professors are not interested in the economic consequences of legal rules, but rather to the fact that the literature is too unaccessible. There is a clear need for reference works that give a reliable overview of the literature in a way that is understandable also for non-specialists. This is the primary purpose of the Encyclopedia of Law and Economics.
Reviews of the Literature
The reviews are relatively lengthy articles (on average nearly 10,000 words) in which the basic questions and items of discussion are explained, the literature is summarized, critical reflections on these publications and on the evolution of the discussion in general are developed, and perhaps suggestions for further research are made.
The authors have been asked not to make their surveys too technical in order to make sure that readers without a mathematical training can still understand it. The result are in-depth and up-to-date syntheses of the literature that are still accessible for non-specialists, like judges, politicians or undergraduate students. All review articles have been anonymously refereed.
The Encyclopedia of Law and Economics is to a great extent also a bibliographical work. In most cases, authors have tried to be quasi-complete. The bibliographical lists at the end of all entries are not a 'list of cited works'. They list many more references than could be discussed in the text. Beside the bibliography of law and economics studies on the topic itself, many entries contain a second list, entitled 'Other References', which are references cited in the text, but either purely legal, philosophical, sociological, or cited law and economics publications that are not directly related to the very topic (for instance, many authors have cited Coase, 1960).
There is no doubt a need for such these specialized bibliographies. The law and economics literature has exploded in recent years (this Encyclopedia lists over 20,000 law and economics publications). However, to date it has not been so easy for readers to find the relevant publications, because they are spread out over law reviews, economics journals, conference volumes and so on. The fact that economic analysis of law is an interdisciplinary approach means that the specialized bibliographies in economics (like Econlit) or the specialized sources on law (like Lexis or Westlaw) give a very incomplete overview. Moreover, titles of articles or books do not always make clear whether the research was purely legal, purely economic, or truly interdisciplinary.
As anyone can experience every day, there is no uniformity concerning the quotation style in law and economics, nor in economics or legal science. To make the bibliographies useful for as many scholars and students as possible, it is the policy of the Encyclopedia of Law and Economics to provide the maximum of information, but within certain limits. More specifically, the references to articles contain in principle the volume number of the journal and the year of publication, as well as the number of the first and the last pages of an article. Journal titles are written out in full. Titles of works in languages other than English are translated into English.
The Encyclopedia of Law and Economics has a pyramidal structure. The question was what structure had to be chosen. The general division of legal rules into branches differs fundamentally among legal systems. Most continental (European) legal classification systems are based, for instance, on the division between public law and private law. They also unify contract law, tort law and the law on restitution into one branch of law, called 'law of obligations'. American lawyers would have a hard time trying to find their way in such a system. The classification system of Econlit (where K is 'law and economics') was in our opinion no perfect alternative either, since it is not detailed enough and not much common-law oriented to satisfy continental lawyers.
Therefore we decided to elaborate a new, detailed classification system, inspired by both legal theory and law and economics insights. After a methodological and historical part (0000-0900), the law is devided into substantial norms (1000-6000) and meta-norms.
Substantial norms are divided into property (private property 1000 ff., common property 2000 ff.) and the transfer of property (involuntary transfer between private parties - tort law and restitution - 3000 ff.), voluntary transfer of property between private parties (general contract law, 4000 ff., and the regulation of contracts, 5000 ff.) and involuntary transfers between citizens and the state (taxation, social security, takings, 6000 ff.).
Meta-norms include litigation and evidence law (7000 ff.), criminal law (putting some additional incentives on legal rules defined in other branches of law) and rules on the production of legal rules (9000 ff.).
A correct classification system can improve analyses by suggesting what kind of models are to be applied. Medical malpractice, for instance, is considered by Anglo-American rules as a branch of tort law. It is more correct from an economic viewpoint to consider it as a regulation of contracts between physicians and patients (therefore it is treated in the volume on the regulation of contracts and not in the general part on tort law). Marriage law is according to many legal systems a part of 'family law'. Again, it is better to see it as the regulation of a specific contract. Modern economic scholarship on marriage law tries to apply the models on optimal contract remedies to the problem of unstable marriages.
A massive undertaking requires the help of an enormous amount of people. We would like to thank, first of all, the members of the editorial board and the the board of referees. Second, we owe a lot to the publisher, Edward Elgar, and his staff - especially to Dymphna Evans for supporting the project in many ways. Third, we would like to acknowledge the financial support of the Economic Institute/CIAV of Utrecht University and of the Department of General Jurisprudence and History of Law of the University of Ghent. Finally, we can give no more than a sample of the people that have substantially contributed to this project: Luc Bosman, Olivier Delbecque, Ben Depoorter, Anja De Wilde, Niky D'Hulster, Wim Dubois, Regine Goemaes, Ghislain Hoffman, Steven Mels, Geert Premereur, An Saerens, Gianni Trovisi, Frieda Van Caneghem and Nancy Van Nuffel.