A CRITIQUE OF THE THEORY OF EFFICIENCY IN COMMON LAW

Abstract

This article seeks to analyze the theory of efficiency in common law which proposes that the common law system tends to produce more efficient legal norms than the civil law system. To investigate whether there is a relationship between jurisprudential norms and efficiency, we have developed an evolutionary game theory model to represent the change process of legal norms in a pure common law system. The theoretical model shows that, in equilibrium, the proportion of efficient norms is equal to the proportion of judges who prefer norms that generate efficient results. Thus, the efficiency of legal norms depends on a judicial bias in favor of efficiency and not the behavior of the parties. Since individual preferences are determined by their ideas or beliefs, over the long term progress in law depends on the capacity of public opinion to cultivate beneficial ideas.