Conceptual Divergence, Functionalism, and the Economics of Convergence
Conceptual Divergence, Functionalism, and the Economics of Convergence
This chapter takes a broader perspective on the issues of convergence and divergence between legal systems. It examines why different legal systems diverge. It illustrates that the basic proposition that the existing state of affairs is not fortuitous and will usually turn out to be in equilibrium: in other words, that it is the outcome of various forces. The chapter then touches upon methodology: what divergence is and how it can be detected. This section is not so much concerned with economic analysis of the law, but rather with the methodology of comparative law. It illustrates a more general proposition arising from any multidisciplinary approach to the law, namely that it is crucial that the law be seen in a broader context, i.e., one that includes both the policy choices underlying it and its practical outcome. The chapter explains under what conditions divergence should be seen as a problem, and explores possible solutions.
Keywords: legal systems, EU law, divergence problem, convergence, methodology
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