At the time of the Reformation in the 1560s Scotland and the Netherlands already had long-established commercial links. Scots soldiers fought in the wars that ravaged the Low Countries and much of northern Europe in the two centuries after Calvinism gained a foothold. Goods, people, and ideas were readily exchanged in the North Sea basin. With the foundation in 1575 of the avowedly Protestant University of Leiden, academic and intellectual intercourse were added to trading ties. By the mid-seventeenth century Leiden had an international reputation for legal and medical education. Expatriate Protestant churches were established in the early seventeenth century, notably the Scots kirk, Rotterdam. There were nineteen English and Scottish religious communities in the Dutch Republic by the end of the seventeenth century.

In the wake of the demolition of the Berlin Wall and the erection of the Maastricht Treaty, intense debate rages over all factors contributing to both unity and diversity in Europe. While issues circulating around markets, currency, and national sovereignty receive greater play in the media, the discussion of parallel issues of European legal unity has been more longstanding. The case can be made that Europe (with the exception of England) has long had a great degree of legal unity. The Roman civil law and the canon law of the church, with some texts of feudal law, became a common learned law, the ius commune, developed and disseminated in the universities in the Middle Ages. This written legal heritage spread from Italian schools, beginning with Bologna, and was “received” in Germany, France, Spain, and even Scotland in the course of the sixteenth century. It was displaced finally with nineteenth-century codifications of national law, which strove to enshrine the legislatively enunciated genius and uniqueness of the nation.

Morton Horwitz once posed the question, “Law and Economics: Science or Politics?” highlighting what has been a contentious issue for legal historians and the general legal academic community. A common historical accounting for the emergence of the law and neoclassical economics movement is that it provided theoretical ammunition for right-of-center politics following the collapse of 1960s progressive politics. Simultaneously, it has been viewed as a continuation of the legal realist moment and a response to the need for a scientific foundation for private law. In short, the consensus seems to be that law and neoclassical economics is about either science or politics. Little thought has been given, however, to its political and scientific formation and, in particular, to how the two in fact intersect. This article attempts to remedy the situation.

I have been invited, and consider it a privilege, to comment briefly on James Hackney's article, Law and Neoclassical Economics. Perhaps it is unnecessary to remark that the article is both engaging and original. Not only does its quality speak for itself, but Hackney is not unforthcoming in speaking for himself. His in-depth and nuanced historical examination of law and neoclassical economics, he tells us, is the first to discuss the intellectual and political backdrop that facilitated law and neoclassical economics' rise to prominence and the first detailed exploration of how law and neoclassical economics as a field of study displaced pragmatic instrumentalist strands in legal theory. Hackney, clearly, could hardly be said to be unaware of the notion of product-differentiation.

I will summarize my reactions to Hackney's article, then elaborate on them. First, the paper mistakenly interprets an analytical categorization used by modern economists distinguishing efficiency and distribution issues as a politically biased convention. Second, it fails to appreciate a crucial distinction between prices or incentives as motivating devices and compensation to victims or aggrieved parties as a form of social redistribution. Finally, it misreads the intellectual history of the modern law and economics movement. Far from being a byproduct of an antistatist academic economics establishment, law and economics began as an eccentric subfield of economics, cut off from the discipline's postwar mainstream.

James Hackney's article provocatively points our attention to very important and underexplored issues concerning the interplay of science and politics in the dramatic evolution of law and neoclassical economics since the Second World War. At the heart of his article is his rejection of any reductionist interpretation of the leading developments in this area. Modern law and neoclassical economics, he argues, cannot be accurately viewed either as merely a faithful, nonpoliticized application of modern social science or, alternatively, as simply a convenient vehicle for the promotion of particular contentious political beliefs. Hackney insists that law and neoclassical economics, both in general and in the specific doctrinal area he emphasizes, is about both science and politics. His article seeks to demonstrate this duality and, more broadly, to clarify the general nature and evolution of modern law and economics. Hackney highlights key general characteristics of twentieth-century intellectual thought and examines the influence of those characteristics, as well as the interplay between science and politics, in a series of landmark works on law and economics that have great relevance to recent debates over appropriate products liability standards.