Sources of Law and The Institutional Design of Lawmaking


This paper considers the relative advantages and the respective limits of three main sources of law, namely, (a) legislation; (b) judge-made law; and (c) customary law. The traditional presentation of sources of law is revisited, considering the important issue of institutional design of lawmaking through the lens of public choice theory. This functionalist approach to legal analysis sheds new light on the process of law formation, emphasizing various criteria of evaluation, which include: (i) the minimization of agency problems; (ii) the minimization of direct and external rulemaking costs; and (iii) the stability and transitivity of collective outcomes.