À propos du réalisme en économie des institutions et ses implications sur l'analyse des fondements juridiques des transactions économiques : Commons versus Williamson

Abstract

This paper opposes two kinds of institutional analysis : the Transaction Cost Economics (TCE) ofO.E. Williamson, which we consider representative of a formalist approach ; and that we call here “Institutional Realism” (IR), associated with J.R. Commons’ Institutional Economics. The first part of the paper grounds this distinction by examining epistemology in the light of the debate about realism in economics. We show that the research program of these authors refers to two basically opposite modes of knowledge production about institutional phenomena - deductivism and pragmatism -, and we stress the inherent limits of the former. Then, in a second part, the paper focuses on a specific consequence of this epistemological discussion : the status of law in an institutional inquiry about the economic transactions. We argue that TCE leads to the a priori exclusion of legal materials and provisions of contract law in its analysis of private ordering issues, while IR leads to a systematic integration of the role of law in the legal-economic process of transacting. These two types of analysis differ in their conception of contract and especially in their consideration of the legal foundations of contracts. This difference entails important implications in the empirical methodology and outcomes associated with these two types of analysis.