The field of “law and economics” applies economic theory to the consequences of law. This branch of economic theory examines the laws that would maximize efficiency and equity. The theory compares, for example, the incentives created by criminal versus tort law to determine the mix of laws that minimize the social cost of wrong-doing. Law and economics studies contract law to determine when a contract is proper, what is the most effective way to enforce contracts, and how best to deal with breach of contract.
The pure market has voluntary exchanges that involve contracts, and so the structure of contract law becomes important. Deficient law and enforcement breeds uncertainty, corruption, and less prosperity. Since contracts are part of the market, contract law is also within the market, and the enforcement and governance that forms the legal infrastructure is part of the market.
Law and economics also deals with external effects, acts that affect others without compensation. The theory examines taxes, regulations, bargaining, and lawsuits as ways to deal with bad effects such as pollution. Another contrast is between property rights and liability rules. A liability rule does not prohibit a trespass, but requires compensation when it happens. And so law and economics contrasts prohibiting an action in advance, versus dealing with the consequences after the act is done.
People think of the market economy as having buying and selling, supply and demand, production and consumption. But there is much more to the market than a customer buying a product. The product may be defective, or the seller might not get paid. There are many legal doctrines that deal with such problems. These are part of the market and part of economics.
A pure free market economy would include the body of law that has evolved over hundreds of years. There are several origins of law: constitutional law, legislated statute law, the common law from decisions by judges, the law merchant of commerce, and natural moral law.
An anarchist society would need much of the law that now applies to marriages and families, lawsuits, crimes, contracts, and uncompensated effects on others. The difference would be that the anarchist society would have voluntary governance, by individual consent, rather than an imposed government. But a network or federation of voluntary communities would need much of the same law that we have today.
One controversial area of law and economics is whether there should be legal monopolies on “intellectual property,” i.e. copyrights on expressions and patents on inventions. Today’s law is mostly utilitarian, providing protection from copying for a limited time in order to provide incentives to creations, although political influence has extended copyright protection for long durations.
The difference between a libertarian society and today’s world is that there would be no laws prohibiting peaceful and honest acts, even if they are offensive. Drugs, prostitution, and gambling would be legal. There would be no restrictions on trade such as with Cuba or on the production, importation, and use of hemp.
Whether in today’s world or a libertarian world, there should be a basic “law of the market” which prescribes that products are presumed to be safe and effective unless stated otherwise. But a pure free market would avoid laws that restrict one’s own use, or consensual use, of property. Lawsuits would mostly adhere to the British system in which the loser of a case would have to pay the legal costs of the winner, which would greatly reduce frivolous law suits, thereby reducing overall litigation costs.
Today’s complex tax laws would be abolished in free-market law and economics, because honest and peaceful transactions would not be hampered by imposed costs. The public finance consistent with a free market would include voluntary user fees, penalties for damage such as pollution, and the land rent that comes from nature or is generated by population and government’s public works. The full employment of a pure free market would provide the job security that comes from employers needing to fill positions, with few idle workers from which to choose.
The complexity of today’s division of labor makes the law that governs relationships necessarily complex, but the clout of lawyers, special interests, and bureaucrats make the law excessively restrictive and needful of attorneys. A truly free society would make the law the servant of the economy and not its master.
What economic theory needs to take into account is that the field of law and economics is not just one of many applications of economics but rather an inherent part of the market economy, and so law has to become more integrated into economic theory. Also, equity is a goal of law and economics, along with efficiency, and an objective application of equity cannot exist without its foundation, natural moral law. “Natural law and economics” needs to become a prominent part of law and economics.