Tipos de inventarios

The participation centred approach is developed chiefly for the purposes of informing institutional choice in law and public policy within a single jurisdiction. However, it can provide a valuable analytical grid for the cross-country comparative study of institutions.20 _{First, CIA stresses the}

importance of the question ‘deciding who decides’ and of allocating decision making competences between the market, the political (legislative) process, courts and administrative agencies. Obviously legal and political systems may, and do differ in allocating decision-making competences to these institutional processes in specific areas of law and public policy. The question of institutional choice is thus identified as being of central importance for analysing different national approaches to economic governance.

It may be interesting to note that on a macro level, main distinctions between legal families advanced by comparative law scholars can be connected to differences in institutional choice. The prime example here is the paradigmatic (and often contested) divide between common law and continental legal systems, with greater reliance on courts in the former and preference for the

17 _{Olson (1965), supra note 14, at 47.}

18 _{Coase, Ronald, ‘The Problem of Social Cost’, Journal of Law and Economics, 1960, 1-44.} 19 _{Komesar (1994), supra note 8, at 23.}

20 _{Mattei, Ugo, Comparative Law and Economics, (Ann Arbor MI: University of Michigan Press, 1997); Bakardjieva}

Engelbrekt, Antonina, Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation (Stockholm: US AB, 2003). See also Komesar stressing diversity in institutional choice and design, Komesar (2001), supra note 8.

legislative process in the latter.21 _{Such distinctions have been taken on by economists in the New}

Comparative Economics school of thought, and used ambitiously to design a grand theory on the link between legal institutions and economic efficiency.22 _{Despite the many problematic aspects of the}

theory, it has the merit of highlighting the centrality of institutional choice.23 _{On a micro level,}

analyses of more limited policy issues, for instance aspects of labour law, financial regulation or environmental protection, can also fruitfully be studied through the prism of different point of gravity between market, political process, administrative process and courts in individual national legal systems.

Second, the theory elicits participation as the main factor for evaluation of the efficiency of decision-making processes and of institutional choice. In a cross-country comparison actors, their interests and stakes, as well as their ability to organise and participate in decision making processes typically differ. For instance the existence or absence of powerful cultural industries or of well organised agricultural lobbies will influence the participation dynamics in intellectual property law- making, or in agricultural policy, respectively. Different degree of unionization of workers and businesses will influence welfare law and policy, while a vocal and entrepreneurial legal profession may facilitate (even excessively) participation in court proceedings. These differences in actor constellations in turn depend on a variety of historical, economic, technological and other circumstances.

For instance, in an incisive analysis Bo Rothstein, building largely on Olson’s theory of collective action, identifies a link between union membership and unemployment insurance as a crucial explanation for the success of unionization in certain European countries (like Sweden). The unemployment insurance constitutes an important additional benefit, a ‘selective incentive’ in the terminology of Olson for joining the collective workers’ organization. A similar incentive is absent in a compulsory insurance system provided by the state (typical of France and other West European countries).24 _{Such differences would seem important for understanding and comparing the structural}

modalities of institutional choice.

Third, the institutional design of non-market decision-making processes like the political process, the courts or administrative agencies emerges as an important determinant of participation costs and benefits. Whereas in his analysis, Komesar mainly scrutinizes the characteristics of the political process and the courts from a single country (i.e. US) perspective, clearly in a comparative cross- country study the emphasis will be on identifying differences in the design of political processes, judiciaries and administrative agencies that facilitate, respectively impede participation. Rules on transparency, participation and consultation in the political process, on access to courts and flexibility

21 _{See Zweigert and Kötz (1998) Introduction to Comparative Law, Oxford: Clarendon Press.}

22 _{La Porta, Rafael, Florencio Lopez-de-Silanes and Andrei Shleifer, ‘The Economic Consequences of Legal Origins’, 46(2)}

Journal of Economic Literature, 2008, 285–332.

23 _{For a critical analysis, especially of the grand scale statistical methodology employed and the attempt to organize the}

worlds manifold national legal systems within three to four main “legal origin” see Bakardjieva Engelbrekt, A. (2010), ‘Toward an Institutional Approach in Comparative Economic Law?, in: Bakardjieva Engelbrekt and Nergelius (eds) New Directions in Comparative Law (Cheltenham: Edward Elgar, 2010), 213-251; Siems, Mathias, ‘Numerical Comparative Law. Do we Need Statistical Evidence in Law in Order to Reduce Complexity?, 13 Cardozo Journal of International and Comparative Law, 2005, 521-540; Berkowitz, Daniel, Katarina Pistor and Jean-Francois Richard, ‘The Transplant Effect’, 51 The American Journal of Comparative Law, 2003, 163-203.

24 _{Rothstein offers then a careful ‘process-tracing’ of the history of acceptance of the so called Ghent system for}

unemployment insurance in Sweden and the complex reasons for its success in this country, thus showing the relevance of institutional trajectories (cf. below on historical institutionalism), Rothstein, Bo (1992), ‘Labor Market Institutions and Working Class Strength’, in: Stenmo, Thelen and Longstreth (eds) Structuring Politics: Historical Institutionalism in Comparative Analysis (Cambridge: Cambridge University Press, 1992), 33-54. On the term ‘process-tracing’ see Thatcher (2007), supra note 12.

and openness of the administrative process, rules on litigation costs and procedure will be among the most important components of the comparative investigation.

Summing up, CIA provides a convenient basis for comparison between different legal and regulative approaches on a cross-country basis. Any comparative study, including a legal one has to explicitly or implicitly confront and solve the problem of comparability. This requires a careful selection and delineation of a common denominator (tertium comparationis), i.e. of a controlled variable, that has to be kept constant throughout the analysis. Mainstream comparative lawyers find the common denominator in the common function of legal rules. Zweigert and Kötz are particularly categorical that “in law the only things which are comparable are those that fulfil the same function.” Using participation costs and benefits as a common unit of analysis arguably provides the common denominator needed for comparative legal studies. It also offers a point of orientation for the normative evaluation of alternative institutional approaches (see below on adaptive efficiency).