Conceptual divergence: an inter-disciplinary perspective using economics
The aim of this contribution is to shed a different light on the discussions taking place within the Binding Unity / Diverging Concepts project, with the help of the literature on the economic analysis of the law. First, this contribution examines rational explanations why different legal systems would diverge. These explanations can refer either to deliberate or non-deliberate phenomena. Secondly, it deals with methodology, i.e. what is divergence and how it can be detected. A functional approach to the assessment of divergence is strongly advocated. Thirdly, it explains under which conditions divergence should be seen as a problem, referring to classical ideas of externalities and transaction costs, but also trying to investigate specific failures which could arise from conceptual divergence. Finally, it explores possible solutions to the problem, including harmonization and letting regulatory competition play.