Convergence and Divergence, in Law and Economics and Comparative Law

Abstract

This chapter takes a broader perspective on issues of convergence and divergence between legal systems, in the light of law and economics and the comparative law literature. It deals with the set of fundamental questions which are typically arising in the academic and policy debate. First of all, it examines why different legal systems would diverge, paying attention to non-deliberate explanations next to the more traditional ones. In so doing, this chapter illustrates the basic proposition that the existing state of affairs is not fortuitous and will usually turn out to be in equilibrium. Secondly, this chapter touches upon methodology, i.e. what is divergence and how it can be detected. It reiterates a more general proposition arising from any multi-disciplinary approach to the law, namely that it is crucial that the law be seen in a broader context, i.e. including both the policy choices underlying it and its practical outcome. Thirdly, this chapter explains under which conditions divergence should be seen as a problem. Finally, it explores possible solutions to the problem. On these last two issues, the chapter rest on another fundamental proposition from economics: almost every change involves a trade-off. In that respect, one should be careful before concluding that divergence needs to be removed or that harmonisation is the appropriate way to remove it. These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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