Drexl, Josef --- "On the (a)political Character of the Economic Approach to Competition Law" [2011] ELECD 354; in Drexl, Josef; Kerber, Wolfgang; Podszun, Rupprecht (eds), "Competition Policy and the Economic Approach" (Edward Elgar Publishing, 2011)

Book Title: Competition Policy and the Economic Approach

Editor(s): Drexl, Josef; Kerber, Wolfgang; Podszun, Rupprecht

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448841

Section: Chapter 17

Section Title: On the (a)political Character of the Economic Approach to Competition Law

Author(s): Drexl, Josef

Number of pages: 25

Extract:

17. On the (a)political character of the
economic approach to competition
law
Josef Drexl

1. INTRODUCTION

It is often claimed that the economic approach to competition law is of an
`apolitical' nature. The argument is that the objectives of promoting eco-
nomic efficiency and consumer welfare are incontestable and, hence, bring
economic rationality to the application of the law. Accordingly, it seems
that these criteria can also be applied for distinguishing between rational
`competition policy' on the one hand and unjustified `industrial policy' on
the other hand.
Yet the characterization of the economic approach as `apolitical' has
its opponents. Already in 1980, Posner, as one of the leading advocates of
the economic analysis of law, was accused by Dworkin (1980: 211­212)
to promote purely `protestant' political values ­ thereby excluding
altruistic ones ­ behind the veil of the goal of wealth maximization. In
the field of competition (antitrust) law such allegations are particularly
addressed to the Chicago School, which, based on the two criteria of effi-
ciency and consumer welfare, claims for itself an apolitical character (cf.
Hovenkamp 1985: 231­232 as an opponent of Chicago) but is accused of
promoting a political and even ideological agenda (Fox 1986). This criti-
cism, of course, may not necessarily apply to more sophisticated schools
of economic thinking in competition policy, like the Post-Chicago
School, which, nevertheless, accepts the goals of efficiency and consumer
welfare.
The following analysis will take a broader approach to the question of
how (a)political the economic ...