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§ 6. Classification of directions of the economic analysis of the right

The economic analysis of the right represents the whole conglomerate of diverse researches of extremely wide range of the legal phenomena consolidated, frequently, only by the general methodological paradigm and initial preconditions of the analysis.

With a view of presentation it is represented expedient to use reception of scientific classification which will allow to receive accurate and system representation about the studied phenomenon that is especially important for revealing of prospects of application of separate versions of the economic analysis of the right in the conditions of modern Russian legal system.

1. First of all, the economic analysis of the right, as well as the economic theory, breaks up to a positive and standard direction. Similar "dichotomy" is classical. However within the limits of the most economic theory also the alternative points of view sometimes express. So, F.Stefan1 declares an inconsistency of similar division and suggests to allocate not two, but three directions of the economic theory: prognosticheskoe, descriptive and ordering. A.Shmakov adheres to a similar sight at the economic analysis of the right also, considering, that along with positive and standard directions exist also tool (predicting, concentrated on performance of predictive function), descriptive (carries out functions on construction of models and the description of preconditions creating them) and ordering directions (it is intended for development of the rules necessary for achievement of objects in view, but without the assumption that such rules are obligatory).

The positive economic analysis of the right is the objective, empirical science directed on revealing and fixing of laws of interaction of the right and economy. The positive economic analysis carries out prognosticheskuju function, allowing to foresee results of realisation [223 [224] legal regulations, in advance to model reaction of addressees of law-making to the accepted legislation. In this direction of the economic analysis real influence of legal regulation on public relations comes to light.

Proceeding from problems facing to the positive economic analysis, criterion of the validity for constructed prognosticheskih models their ability to give empirically checked forecasts is. Thus, the forecasts are more exact, the the model is above estimated, allowed it to give, without dependence from degree of realness of preconditions used by it, and sometimes and them is actual, eksplitsitno-reduktsionnogo character.

It is remarkable, that as marks T.Veljanovski, conditional character of models created within the limits of the positive economic analysis does not assume, that studied relations are the most important. For example, it continues, the economist can approve, that people will react to increase in costs (as a result of an economic damage from a negligence), more cautious behaviour in risky kinds of activity that proves to be true empirically, but the economist not begins to approve, that the best way to raise safety level lays in a plane of material stimulation [225]. The positive economic analysis aspires to a neutrality and objectivity at fixing of the revealed laws of interaction of the right and economy, it does not put a problem revealing of the most correct (optimum) purpose and does not dictate means of its achievement, only establishing and predicting merits and demerits of each of variants.

The most natural area of the positive economic analysis of the right is the estimation of legal effects, their probabilities and approachibility. The made forecasts are checked by means of gathering of empirical data, their check, the statistical method, mathematical methods and a method of expert estimations is used. For jurisprudence similar data can be extremely useful, especially considering their emotional neutrality, possibility after work with them to accept independent, but the given reason and weighed decision.

Concentration of the positive economic analysis on an estimation of legal effects (effect evaluation) is visually illustrated by the literature devoted to "a restraint hypothesis» (assumptions that decrease in utility of criminal activity will entail crime rate decrease). The positive analysis can give not only the answer to a question, what "prices" (sanction) will have the greatest constraining influence but also which change from parametres during each separate moment of time is the most effective.

The important critical remark to the positive economic analysis are the instructions on that fact, that excessive concentration on one business factors can entail underestimation of many inadvertent consequences of legal intervention that does the political decisions based only on the economic theory, dangerous [226]. Partly it is possible to agree With it, but it is represented irrational to refuse a wide experience of the economic theory in questions of the analysis of empirical data and constructions prognosticheskih models on one this basis. More likely, it is a question besides of an auxiliary role of such methodology in jurisprudence, about inadmissibility of refusal of other methods in favour of one positive economic theory.

Side benefit of the positive economic analysis of the right is possibility with its help better to understand and reveal economic preconditions of a historical heritage of the right (realised before legal reforms) and more deeply to understand mechanisms of action of the prevailing law.

Even R.Pozner considering natural standard implied sense of any research under the economic analysis of the right, has been forced to establish sharp growth of number of works in the tideway of a positive direction. G ovorja about the future of the economic analysis of the right, the founder of the Chicago school has assumed, that the tendency of growth of popularity of the positive analysis сохранится1, and, in our opinion, - was not mistaken [227 [228] [229].

The standard version of the economic analysis is not neutral under the maintenance, it is based on the theory of well-being and the sou - concentrates on questions allokatsionnoj efficiency of legal regulation, search of correcting decisions in situations when efficiency is not reached,

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shchestvuet a market failure (market failure). Allokatsionnaja efficiency represents a condition of absence of possibility of a reorganisation of productive activity or distribution which would increase the well-being of a society measured by the prices in the competitive market (at the set distribution of profit and riches).

The positive direction of the economic analysis establishes certain circumstances while the standard economic analysis actively offers decisions of arising problems by means of modification of legal regulation of public relations.

A number of authors, for example V.L.Tambovtsev [230], improvements otelnyh rules of law and institutes, and also legal system as a whole, especially in the countries with transitive economy in which the legal field is deprived possibility to lean directly on long-term practice of the developed market relations mark efficiency of a standard variant of the economic analysis of the right, its proved utility for carrying out of legal reforms. The logic of similar reasonings is under construction that if the legal system de facto has been adjusted by optimum image - on peak efficiency of separate individuals and in a limit - economy as a whole for the standard economic analysis simply would not remain places. The given substantiation is represented tavtologichnym as for a substantiation of the standard analysis starts with aprioristic character of efficiency as the main and unique purpose of the right, that as we were already convinced, is far not always so.

As the work example, executed within the limits of the standard economic analysis, it is possible to name the monography «Costs of accidents» of 1 G.Kalabrezi in which the author not only criticises modern to it system of norms about responsibility for accidents, naming its inefficient, but also offers the, it is perfect other system of norms and the institutes, allowing effectively to redistribute a damage to the party which tries to avoid it with the minimum costs.

It is necessary to notice, that application in practice of ideas of the standard economic analysis causes serious difficulties. As an example it is possible to result business «Union Ojl kompani against Oppena» (1974) in which judge Sind has made an attempt direct application in judiciary practice of positions of work of G.Kalabrezi «Costs of accidents». The plot has put such is: association of the oil companies, carrying out an oil recovery in the channel Santa-Barbara, on imprudence has admitted oil leak, having put to that a damage to the fishermen who were engaged in a commercial craft in the same channel. Disputable [231 [232] [233] there was a question on indemnification association of the oil companies of the loss of profit of fishermen (in the form of not received incomes expected by them of a craft), taking into account absence at fishermen of the property right to objects of the water environment whom they were going to extract. To motivate necessity of such indemnification judge Snid has tried references to the specified work proferrora Kalabrezi.

Similar attempt, certainly, is worthy. However from application of criterion Kalabrezi - search of the party which could avoid losses with the least costs, - judge Snid has evaded, as from too difficult though in a context of the case in point the answer seems obvious (fishermen are simply deprived possibility to avoid a damage). Though to application of auxiliary criteria Kalabrezi it would be possible not to pass, the judge has made it, but besides is not absolutely true. So, the judge specifies, that «losses should be assigned to the party which can rectify an error allokatsii by absorption of activity of persons to which the damage - that is on the respondent» [234] is caused. From the economic point of view, it is impossible to assume expediency of creation of the uniform "neftedobyvajushche-fishing" firm which creation is dictated by efficiency reasons. Hence, the conclusion made court in the present business, has more likely coincided with economically true decision of a case, than has been found by means of the correct economic analysis spent by the judge. Attempt can be paid compliments only.

Thus, the standard direction of the economic analysis of the right sees the main task of the legislation minimisation of public costs through creation of stimulus which could limit a damage. Excessive zatsiklen - nost the standard approach on efficiency does its limited on action sphere as does not give the answer to a question on initial distribution of the rights, specifying only on necessity to make their exclusive and alienated. Anyhow, but the standard economic analysis is applicable only in case before the legislator there is strictly certain politiko-legal purpose consisting in increase of efficiency, in all other cases, to - gda the right aspires to solve other problems, the given toolkit is not actual. To offer design of the legal institutions which have been not directed on the decision of a question on efficiency, the standard economic analysis of the right not in состоянии1.

2. There are some the basic criteria traditionally used by various directions of the economic analysis of the right at definition of efficiency, that in itself can be is taken for the basis for classification of such directions. The analysis of efficiency of rules of law assumes their comparison and an estimation from the point of view of result which they should maximise at the minimum costs. As such result use of cumulative utility (aggregate utility) or cumulative riches is supposed

(aggregate wealth).

Development of modern criteria of efficiency occurred in a context of rigid criticism L.Robbins of one of postulates utilitarizma I.Benta-ma about an admissibility of interpersonal comparison poleznostej and their quantitative measurement (the thesis is known also as «a principle kardinalizma»).

According to criterion Pareto (Pareto efficiency) if the law (judgement) leads to position improvement at least one of members of a society and thus will not worsen nobody's position such law (judgement) is effective. In a case if the further improvement on Pareto is impossible, speak about Pareto - optimum distribution (result) (Pareto optimality). It is obvious, that criterion Pareto tries to leave from a problem of aggregation of utility and preferences, that at the same time assumes unanimous decision-making by all members of a society.

Practically unanimously the economic analysis admits, that in the best way for efficiency achievement on Pareto free private transaction as, entering such relations, each of their parties sees for itself advantage (maximises utility) approach, that in the absence of negative eksternaly allows to speak about improvement on Pareto. Korrespondiruju - [235 [236] shchimi positions of the legislation for this criterion of efficiency are, first of all, a principle of freedom of the contract (item 1, 421 Civil codes of the Russian Federation), and also necessary for its realisation a recognition, the accurate specification and real mechanisms of protection of the right of a private property. At the same time, the right can aspire to achievement Pareto - optimum result not only through creation of conditions for a free market turn, but also by direct legal regulation through distribution of the blessings answering to criterion.

A little idealistic and, as consequence, often practically inapplicable, does criterion Pareto its orientation to full avoiding of negative consequences. In the modern conditions decision-making completely deprived of negative consequences for all groups of subjects, is complicated, it is necessary to sacrifice one interests to another, making thereby the realised politiko-legal choice that is inconvenient at concentration on one only потерях1 is more often.

Criterion Kaldora-Hiksa (Kaldor-Hicks Effeciency) allows, unlike criterion Pareto to focus attention of the legislator not on losses from the politiko-legal decision, and on a prize which it allows it to reach. According to criterion Kaldora-Hiksa, «the condition And is preferable in comparison with a condition In if those who receives benefit from transition to a condition And, can compensate losses of those who has incurred them from this transition, and all the same to remain in a prize» [237 [238]. Subsequently T.Sitovski has added criterion Kaldora - Hiksa with a condition about impossibility of return to a return condition. It is important to understand, that real indemnification of losses suffered from this or that decision does not occur, differently then we would deal with improvement on Pareto as in a prize there would be all members of a society.

One more difference of criterion Kaldora-Hiksa is it orientirovannost on increase not cumulative utility (aggregate utility), but cumulative riches (aggregate wealth) societies, assuming necessity of carrying out of the analysis of economic costs and benefits (cost-benefit analysis). As for this purpose it is necessary to compare a prize of one to losses of others, speech again goes about aggregation of preferences and interpersonal comparison of utility. As a measure here again it is offered to use readiness to pay. On the one hand, this circumstance causes criticism from a number of scientists (for example, the River Dvorkin), specifying in an inaccuracy of use of readiness to pay for definition of degree of necessity of the blessing to the person as initially richer person who is not requiring even not in any blessing (right) so, how much in it requires the poor man, all the same in a condition to pay for it more, and, proceeding from riches maximisation, should receive this blessing.

Whether but there is other way of distribution of the blessings, other criterion which has allowed more precisely to define interest of the person in this or that blessing, than ability to pay? In a reality besides readiness to pay at distribution of the blessings are used only distribution in turn and distribution as a lottery (casual distribution of the blessing). Use of such principles is interfaced with even bolshej probability of an error, than a readiness principle to pay, therefore actually on a current level of development of a science use of money as criterion of comparison competes not to the alternative scientific concept, but only only with a certain ethical indignation of scientists against so obvious utilitarizma. Therefore until development of other criterion of comparison (which, by the way, utilitarizm it is occupied some centuries) at legal regulation it is necessary to combine available principles of distribution of the blessings and there where the readiness principle to pay enters the obvious contradiction with ethics dominating in a society to replace with its principle of sequence or casual distribution, not creating legal рынка1. Certainly, for maintenance at least conditional possibility of using to pay in criterion of readiness the economic analysis of the right is forced to ignore meaningly also one of base economic laws - the law of decreasing limiting utility (diminishing marginal utility), considering, that for the millionaire and the poor man 1 rouble has equal value. Otherwise economic modelling would appear impossible because of limiting complexity of initial preconditions of created model.

At the same time, there is variety of sharper contradictions and the lacks peculiar to both named criteria of efficiency. So, preferences of members of a society at efficiency definition are not estimated, therefore the structure of preferences, say, the addict and the professor of philosophy is absolutely equivalent for the economic analysis of the right. Besides, in situations when the direct market for any blessing is absent, the blessing yet did not become a subject of the transaction of concrete participants of the civil circulation or to court it is extremely difficult to legislator to define its value for each of the parties. The state paternalism here faces what participants of a turn, and only they, most precisely and objectively understand true value of the blessing, the unknown person with such degree of reliability to court, the legislator, trying to offer the parties effective distribution.

Besides statement of a question on efficiency assumes comparison of efficiency of the certain changes based on structure already existing to this moment of distribution of the rights and riches in a society so, there is an unlimited quantity of effective decisions (for everyone struk - [239] [240] rounds of distribution of riches). The question on efficiency of the most set as a condition of the analysis of structure is not put (for the answer to it there is no adequate methodology).

Essential value at efficiency definition has time horizon of its definition as effective in the moment legal decisions far not always remain such in long-term prospect. Both criterion Pareto, and criterion Kaldora-Hiksa do not give the answer to a question on time horizon comprehensible to their application. The given fact is necessary for taking into consideration, accurately discriminating consequences for short-term, intermediate term and long-term prospects. It is obviously necessary research to generate by a certain pool of the base rights, with which cannot be neglected for the sake of short-term benefit, as the neglect them always (or in most cases) leads to losses in long-term prospect (for example, first of all, the property rights, or, say, reliability of investments). The the time horizon of an estimation is deeper, the the coherence of processes in the economy, shown that in the presence of a complex of the problems, stirring to growth of the general well-being of the society, the isolated decision only one of them can entail deterioration, instead of situation improvement as a whole that will entail only reduction of cumulative riches of a society is more brightly shown. For example, attempts of legal regulation of failures of the market by increase in the state intervention in market mechanisms in the conditions of corruption and an inefficiency of machinery of state often give opposite effect in intermediate term and long-term prospect [241].

Besides, it is impossible to forget, that hardly there are reasons on which economic efficiency should carry a rank of the main and unique purpose of legal regulation. There is a variety of the purposes of the legal influence competing among themselves, integrated thus in system unity of a legal material that dictates both for court, and for the legislator each time vzveshenno and in a complex to approach to the permission of situations politikopravovogo a choice.

The discontent with logic consequences from principles of maximisation of utility (transition of all resources to the people enjoying a life) and maximisation of riches (transition of all resources in hands rich) forces scientists to search for other criteria for distribution of riches and resources which could be used by the standard economic analysis of the right. One of such attempts has undertaken J. Ролз1, offered, considering injustice of influence of distribution of resources on well-being of a society to estimate well-being of a society to the weakest of its members.

Though J. Rolz at comparison of various variants of a politiko-legal choice of models of legal regulation was not guided by criterion of efficiency, he has offered other applicable way of realisation of such choice., from its point of view, such decision which is chosen by the individual, free from pressure of personal interests is optimum. For this purpose it is offered, by analogy to a principle maksimina in the theory of games, to choose such decision which will lead to creation of a situation (society) in which the subject making the decision would feel itself in the best way, it appear it in the worst position (the least provided member of a society most "suffered" from a politiko-legal choice).

3. Other classification criteria have already been in detail considered by us in the present work, therefore for presentation we only once again is short name them, without detailed analysis of the maintenance given in chapter 1: [242]

3.1. From the point of view of width of research horizon in the economic analysis it is right it is accepted to allocate the "old" economic analysis of the right (studying only directly market phenomena) and the "new" economic analysis of the right (in which orbit of interests, thanks to development of the theory of rationality, the wide range of questions has got, including not market behaviour: a family, the law of master and servant, the legislation on responsibility etc.).

3.2. In a historical retrospective show it is accepted to divide the economic analysis of the right to «the first wave» and «the second wave» 1, begun after loss by the Chicago school of the economic analysis of the right of dominating positions. Besides, we in chapter 1 offer an independent periodization of the economic analysis of the right, including initial, classical and postnonclassical stages of development of a direction.

3.3. As independent schools of the economic analysis of the right vyde -

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ljajut the Chicago school (the Chicago economic analysis of the right), the Austrian school (the Austrian economic analysis of the right), and also old and new institutsionalizm.

Institutsionalnaja the school differs itself that does not put before itself a problem to create the model, allowing to give authentic forecasts, is simultaneously sceptically estimated here and «Universe Kouza» (that is the market with zero transaktsionnymi costs), as not having correlations with surrounding validity. T.Veljanovski allocates following basic characteristics (neo) institutsionalnogo подхода4:

• taksonomichesky character - working out of special, as much as possible exact lexicon, a set of the economic categories necessary for knowledge of the right, refusal of the simplified neoclassical lexicon (O.Uiljamson); [243 [244] [245] [246]

• microanalytical character - a withdrawal from the tendency to generalisations, on the contrary, each transaction is considered separately, as unique, taking into account a role of the person of its participants, their relations and the power (S.Makalej) [247];

• dynamism - the tendency to an evolutionary sight, consideration of institutes in their development (as a hypothesis of evolution of institutes attempt thus undertakes to minimise transaktsionnye costs). Market balance here is not investigated, as in attempts to reach it (dynamics) adaptive mechanisms of decrease in costs are shown more brightly, than in a statics.

Attempt of an explanation of all phenomena pulls together with a standard direction of the economic analysis institutsionalizm through a prism of the efficiency understood, however, some differently - as ability to adapt to uncertainty of environment. The purpose - to prove meant efficiency of the law which is put before itself by the Chicago school, here is absent. More likely, process of evolution of institutes is considered proceeding from the assumption of aspiration of institutes to realise possibilities available for them for effective achievement of the purposes facing to them which can be in turn as market, and others. Moreover, in frameworks institutsionalnogo the economic analysis conclusions about necessity of protection of separate institutes (and activity kinds) from market influence can be received.

Thus, institutsionalnyj the approach differs from the Chicago and Austrian schools much smaller gravitation to "rynochnosti", and also original informative problems and initial preconditions of researches.

3.4. Division of the economic analysis of the right into such directions, as the analysis of the case (general) right and the analysis kodifitsirovannogo (civil) right is worthy as well based on distinctions of legal systems. For the economic analysis of the right special value distinctions of the legal systems get, law-makings concerning process, argument type pravoprimeniteljami the decisions (eksternalistky in the Anglo-Saxon countries and internalistsky in the countries where there was a Roman Law reception).

The original treatment of this classification is given by A.V.Shmakov, not only the dividing economic analysis on the basis of legal systems, but also offering division of each of directions into subspecies:

1) the economic analysis of a case law includes:

- The efficiency analysis;

- The analysis of the judge;

2) the economic analysis kodifitsirovannogo includes the rights:

- The efficiency analysis;

- The practicability analysis (possibilities of acceptance and realisation of rules of law);

- The analysis of the legislator [248].

Recognising the given point of view worthy and useful in the informative purposes it enough the jurisprudence conditional and simplified from positions, nevertheless, is considered. First, hardly it is correct to bring an attention to the question on the economic analysis of the judge or the legislator, too such statement of a question is subjective. Secondly, the economic analysis of a judicial version pravoprimenitelnoj experts is obviously possible and even necessary not only within the limits of the Anglo-Saxon right, but also and in the conditions of the continental law. In the same degree it is strange to consider impossible the economic analysis of the legislation accepted in the countries of a case law. At all not taking into consideration convergence of modern legal systems, the hand-written legislation always existed in the case law countries, and judiciary practice played and plays a considerable role even in the romano-German legal tradition.

More detailed analysis of features of the economic analysis of the right in the continental law countries will be given in the final paragraph of the present work devoted to possibilities and prospects of its application in the conditions of the Russian legal system.

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A source: TIMOFEEV Evgenie Aleksandrovich. «LAW AND ECONOMICS»: The DOCTRINE About the RIGHT And the STATE In the USA In the XX-th century. The DISSERTATION on competition of a scientific degree of the master of laws. Nizhni Novgorod - 2016. 2016

More on topic § 6. Classification of directions of the economic analysis of the right:

  1. § 7. Advantages and restrictions of the economic analysis of the right as directions of research of problems of the right and the state
  2. § 3. Classification of economic societies with the state Participation
  3. §3 Classification of the international economic organisations.
  4. 1.2 VERSION of FREE ECONOMIC ZONES And THEIR CLASSIFICATION
  5. 1.2 VERSIONS OF FREE ECONOMIC ZONES AND THEIR CLASSIFICATION
  6. classification and osiovnye features of development of free economic zones
  7. 1.2. Classification and the basic features of development of free economic zones
  8. Chapter 3. Directions trudopravovoj integration of the states of the Euroasian economic union
  9. 3.3 Directions of social and economic development of macroregion TsentralnoYochernozemnogo
  10. 2.3. Development of the Mongolian economy and the basic directions of trade and economic cooperation of the USSR and MNR