LORENZO RAMPA

Autorità ed efficienza: è possibile un'economia del diritto pubblico?

220

Gennaio-Aprile 2009

Anno LXXIV    n. 1

Abstract  - This article explores the possibility of applying the tools of economic analysis of law, which are  traditionally used in the field of private law, to public law as well. The first part investigates constitutional law issues, addressed by prevailing approaches through the social contract framework, by applying an agreement model to a general public good such as the State. This model is typically based on games with features of the 'prisoner's dilemma'.Through the analysis of constitutional preferences that may transform such dilemma in a game with full cooperation equilibrium, two types of preferences are compared: 'utilitarian based on impartiality principle' and 'rawlsian based on difference principle'; it is shown that this second type better facilitates the constitutional agreement. With the objective of utilizing more easily economic theory tools, the article then attempts to apply the distinction between private and public good to that between private and public rights. In particular, both public goods and public rights can be assimilated as they are non-excludable and non-transferable through exchanges or contracts. Moreover, an attempt is made to define an economic counterpart to the juridical notion of 'general interest' which is the basis for those norms in the fields of public and administrative law envisaging the direct intervention of the State to remedy market failures, both at constitutional and sub-constitutional level.Hence the question of what are the most efficient legal procedures to solve such problems is addressed. Using above all the case of negative externalities related to private goods, the article discusses in particular when it is more efficient to resort to administrative interventions rather than judicial ones; or otherwise allowing such problems to be dealt with through private bargaining between injured and injurers. In this respect the latest literature of economic analysis of law often favours  private bargaining in the spirit of Coase's thinking. However, it is here put forward that in terms of cost-benefit analysis economic theory reaches much less radical conclusions often supporting the higher efficiency of legal rules and administrative types of intervention.In the final part of the article, different legal systems (minimal, neoliberal, welfarist) are compared by way of analysing their rationale and limitations from an efficiency point of view.