Legal Origins, Comparative Law, and Political Economy

The “legal origins” scholarship of the past decade has created controversy both in its application of quantitative methods to comparative law and in its claims that common law is better than civil law for economic development. These controversies have unleashed a storm of criticism by traditional comparative law scholars. Without denying the validity of much of that criticism, this short contribution to a symposium on the legal origins literature seeks to emphasize some positive points with three main arguments: (1) the quantitative methods used by the legal origins literature are not a substitute for traditional, non-quantitative comparative studies but an extension of traditional scholarship, on which quantitative methods must perforce rely and to which they offer a potentially fruitful partnership; (2) despite the substantial criticisms of the application and interpretation of quantitative methods by the legal origins literature, there is no reason to reject the methods themselves; comparative law needs to explore the utility of quantitative methods for developing and testing generalities about legal systems and we should be wary of a disciplinary bias against using them; and (3) the core idea of the legal origins thesis - that there are aspects of the civil law tradition reflecting a more intrusive or regulatory conception of the state than is found in the common law tradition - is borne out by my own work on the political economy of legal systems though the generalization appears to be more useful for fostering understanding across legal traditions than as a blueprint from legal reform.