داوران و اقتصاد سیاسی منشاء حقوقی

Legal origin has been brought forward as a key influence on modern finance, because common law institutions protect investors better than do civil law institutions, it is claimed. These institutional differences are said, in the legal origin explanation, to have been hard-wired into nations centuries ago. Daniel Klerman and Paul Mahoney challenge the legal origin description of the jury as emerging and achieving prominence in 12th- and 13th-century England while remaining unimportant in France. That contrast has been offered as a key difference between common and civil law, one dependent on the differences in relative power between the English monarch and the French one in the 13th century. But the investigation of the jury here should give pause to those promoting the overall legal origin thesis. The first reason to hesitate is that the jury is not central to protecting outside investors in common law nations. Indeed America's premier corporate court—the Delaware Chancery court—sits without a jury, and the usual view in legal circles is that the jury's absence (and the resulting decision-making by expert judges, not juries) is a strength of the court, not a weakness. The second reason is that Britain did not generally transfer the jury system to its colonies, because to have done so would have conflicted with its colonial goals. That is not a secondary point: political economy issues regularly trump issues like legal origin—colonial policy was just one example of how political goals displace secondary institutions. The third reason is that analysis for the jury differences between civil and common law nations depends on political economy differences centuries ago. But if political economy differences determined institutional differences in the earlier centuries, it is plausible that political economy differences in the intervening centuries would also have affected financial outcomes. Indeed modern political economy differences that lead some nations to support capital markets and others to denigrate them could explain modern financial differences as much as, or more than, 13th century political differences. Journal of Comparative Economics35 (2) (2007) 294–308.

Legal origin—common law versus civil law—is important to the past decade's finance theory. Peculiarly, the theory has not had traction in the academic legal literature, which might be surprising given academic disciplines' understandable tendency to see their own issues as central and determinative. What legal academic commentary that the theory has provoked has either been skeptical that the legal origins channels that the law and finance literature promotes are really so important or skeptical that origin could be as important as modern political economy considerations. That is, while the legal literature hardly denigrates law's importance, it has doubted the importance of legal origin to financial development. Mahoney (2001), although sympathetic in part (particularly to the idea of a detrimental statist nature of civil law), denigrates the idea that civil law codification can be as important as the legal origin theory had hypothesized, since so much of American corporate and commercial law is codified. Coffee (2001) sees the propensity of some countries to disrupt their stock markets, which would have provided the needed investor protections regardless of underlying legal institutions, as central. Roe, 2000 and Roe, 2006 shows that, while property rights and investor protection are important, legal origin differences cannot explain the institutional differences, since common law countries use non-common-law institutions, such as securities regulators, and not just common-law-oriented fiduciary duties. He shows that modern political economy forces are likely to explain modern financial and investor protection differences in wealthy nations better than legal origin.

Legal origin has been brought forward as a key influence on modern finance, with the perspective being advanced that common law institutions are intrinsically better adapted to protect investors than civil law institutions. Glaeser and Shleifer (2002) offer a creative inquiry into the early emergence of the jury in common law nations and its relative unimportance in civil law nations. They offer it as one of the significant continuing differences between common and civil law, one dependent on the differences in relative power between the English monarch and the French one in the 13th century, with the powerful British monarch able to forgo centralization, while the weaker French monarch needed to assert control over localities via a more powerful judiciary. Daniel Klerman and Paul Mahoney provide an excellent analysis of the difficulties of doing this kind of historical work, as it turns out that much evidence indicates that the powerful British monarch in fact centralized judicial authority. If differences emerged, say Klerman and Mahoney, they emerged later on. Moreover, they say that one cannot yet reject the possibility that law is determined simultaneously with social, political, and economic facts, as the 13th century structures did not seem to predetermine the later ones. If by simultaneous, we mean over the course of decades, with multiple feedback effects, their thesis is one I'd sympathize with and indeed put forward in Roe, 2000, Roe, 2003 and Roe, 2006.