Vogel Book Prize winner Ejan Mackaay on an award that celebrates the link between legal theory and practice

Ejan Mackaay at 2013 Prix Vogel ceremony

Ejan Mackaay at the 2013 Prix Vogel ceremony
Photo courtesy of Hamilton de Oliveira, Agence REA

The introduction to Ejan Mackaay’s latest book Law and Economics for Civil Law Systems begins:

Can the law do everything?

‘[..] it is a fundamental principle with the English Lawyers, that Parliament can do every thing, except making a Woman a Man, or a Man a Woman’ de Lolme wrote in 1771. He meant to express the supremacy of the English Parliament. Two centuries on, medical science has advanced on making a Woman a Man, or a Man a Woman, and the power of Parliament is no longer considered as absolute as it then looked, but is limited by fundamental rights defined in constitutions, charters and international conventions that the courts have the power to apply against acts of Parliament.

But de Lolme’s saying lends itself to a different reading as well: law can do everything. To bring about any desired social effect, on this view, it suffices to legislate it. To judge by the staggering pace at which legislation is being produced these days, modern governments appear to draw their inspiration from this second reading. A positivist approach to law handily complements this line of thinking. Yet the very fact that such massive amounts of legislation appear to be necessary suggests that citizens are not playing the game; that law cannot produce every effect considered desirable. [Click here to read the rest of the Introduction].

On 12 December, the book was awarded the 2013 Vogel Book Prize for Economic Law. In this article, the author Ejan Mackaay discusses potential implications of this award for French civil law scholarship.

PrixVogel-certificatAt first blush, some might be tempted to consider it incongruous that a French prize should be awarded to a book in English written by a Canadian. But look again. The wording of the prize explicitly opens it to submissions in French or English; it is silent about the nationality of the author, merely stating that the submission must make a significant scholarly and practical contribution to French or European economic law or economic analysis of law.

The prize was created in 2012 by a Paris law office, Vogel & Vogel, specialising in economic law. It reflects a refreshing openness, indeed a curiosity, to what happens outside France. This, it seems to me, is a deep-seated trait of French culture, often obscured by surface nationalism. It is comforting to see it surface here.

The prize also insists on the link between theory and practice. Good theory has always something to say to practice and practice always throws up challenges that theory ought to pick up. All of this is in the best scholarly tradition. In France, this openness and the best scholarly tradition are not necessarily found in the universities, laden down with impossibly large numbers of students and bureaucratic supervision by the Ministry of Education. International university rankings also tell that story. But look again at the French institutions that are not subject to the numbers and the bureaucracy, such as the Business schools or the Institut d’études politiques (IEP) de Paris (“Sciences Po”) and you will find the same dynamism as elsewhere. France has six business schools in the top 25 rankings for Europe put together by the Financial Times.

In presenting the award, Joseph Vogel picked up on one well known example of a law with unintended effects, viz, that raising the minimum wage (the SMIC in France), whilst proceeding from the generous intention to help the worst off, will in fact increase unemployment amongst the most vulnerable: the young, the immigrants, women returning to the work force after raising a family. He highlighted how the book contained many other lessons French politicians ignore at their peril.

Law and economics contains lessons about the effect of legal rules across the board, well beyond the boundaries of economic law proper. At the same time, much of the core structure of the civil code appears to reflect an awareness of this logic, opting in most cases for what is economically the “efficient” solution. In this, it agrees with what French lawyers consider “just” solutions. All this has been known for a while in the common law world, where law and economics is now part of most law courses. But it is news to French civil lawyers and one must hope that if a French prize underscores these insights, they will find their way into French civil law scholarship.

Ejan Mackaay photoEjan Mackaay is Emeritus Professor of Law at the Université de Montréal and Fellow of Cirano (Centre interuniversitaire de recherche en analyse des organisations) in Montreal. His research has been at the interface between law and neighbouring sciences; his current interests lie principally in the economic analysis of law and in intellectual property.  He is the author of a number of articles and books, including most recently Law and Economics for Civil Law Systems, which won the Vogel Prize 2013 in December 2013.
Cover of 'Law And Economics For Civil Law Systems'

Also available as an eBook for subscribing libraries on elgaronline


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