Laura Ammannati

Diritto e mercato. Una rilettura delle loro attuali relazioni alla luce della nozione di "transaction" di Commons

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The study presents an analysis of the relationships between law and the market, namely the ways in which law as a system of rules interacts with the mechanisms of market creation and organization. The analysis is carried out in three parts. The first suggests that the reason why juridical theory has traditionally ignored the market is a question of more or less conscious affirmation of neoclassical economic theory according to which the natural division between the realm of law and the market spontaneously achieves an optimal equilibrium. From this perspective, intervention in the economic realm originates exclusively from outside and pursues autonomous aims, as may be observed in the very structure of the Constitution when compared with certain aspects of Civil code. The second part suggests that the role of the market as a structural link between the economic and institutional realms has existed since the first drafts of European Community Treaties were formulated. In terms of its dimension organized in accordance with the competition principle, the market is created and may operate through a system of legal rules. In the third part the author demonstrates that the market is actually not autonomous and that legal mechanism are "co-essential" to its existence. This assumption is demonstrated through the notion of "transaction" treated by J. R. Commons in "Legal Foundations of Capitalism" (1924). This notion defines the market both as a system of legal rules shaping individual behaviours (the market as an institution, like economic or political organisations) and as a dimension characterized by plurality (namely the competition principle).

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