Wagner-Von Papp, FH; (2014) Comparative law & economics and the 'egg-laying wool-milk sow'. Journal of Comparative Law , 14 (2) pp. 137-165.

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Abstract

Proponents of a new discipline of ‘comparative law and economics’ emphasise the complementarity of ‘comparative law’ and ‘law & economics’. I share this view, but highlight some of the problems that comparative law and economics encounters. My word of caution is that a good comparative law and economics analysis would be an ‘egg-laying wool-milk sow’—an imaginary cross-breed creature that has come to signify an impossible combination of desirable attributes. Most of this piece focuses on the considerable costs confronting the researcher who combines comparative and economic approaches. It is an elaboration on William Twining’s warning that ‘it is easy to ignore or to underestimate the difficulties, theoretical and practical, of sustained interdisciplinary work.’ However, Twining continued that ‘[i]t is easy for inflated optimism to be replaced by sour disillusion’, and to avoid this trap, the final section this piece paints a more conciliatory picture, turning to the benefits that the combination of comparative law and law & economics can bring. As long as the researcher understands and openly confronts the feasibility constraints, and acknowledges the normative choices necessarily made even when describing the ‘Is’ (that is, in the ostensibly ‘scientific’ part, not to mention the normative part on what ‘ought’ to be done), both approaches have the potential to advance knowledge considerably, and the whole can be greater than the sum of its parts. However, it is in my view better to have separate in-depth legal comparisons and in-depth economic analyses, instead of sacrificing either the richness of a functional legal comparison or the rigour of the economic analysis in a combined ‘comparative law and economics’ approach.

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