The economists' new science of law, 1830-1930

This study is to serve in two capacities: first, as a prehistory to the "new institutional economics" of the late twentieth century; second, as an effort to synthesize, or at least analyze, one central aspect of the highly diverse literature of nineteenth-century "historical" and "institutional" economics. That aspect is the centrality of law.;The "new science" is identified as a research program within political economy. Its aim was to explain, using the methodologically individualist terms characteristic of economic discourse, the working rules of human society, with a special premium attaching to the sort of covering laws that could account for the longitudinal and cross-sectional diversity of social experience. By this definition, the college of the new science included members of the German and English Historical Schools (notably Wilhelm Roscher, Karl Knies, Gustav Schmoller, Adolph Wagner and Karl Bucher), early American Institutionalists (notably John Commons), and many others (notably Emile de Laveleye, Carl Menger, Achille Loria and Max Weber).;The origins of the new science are traced to the growing prestige of determinism and the evolutionary concept in nineteenth-century social thought. The economic approach to law developed first and most fully in the German universities, where the two disciplines had long been associated in the curriculum of Staatswissenschaft, or the "science of state".;The new science's analytical center of gravity strongly resembled that of today's "new institutional economics". It made free use of the conception of an invariant homo oeconomicus, which had the effect of reducing law's diversity to diversity in the economic or transactional environment. On the other hand, practitioners of the new science stood readier than our "new institutionalists" to admit the possibilities of non-pecuniary or even altruistic values, of bounded rationality, and of institutional inertia.;The study includes a digression of sorts, on the normative dimension of this ferment in the positive analysis of law. In particular, it shows that the determinist turn tended to push normative discussion "up", from the level of specific laws to the level of society's political organization. In this sense the new science prepared the ground for an early version of "constitutional economics".