reject standard accounts of the normativity of law, an issue addressed Political economy assumes that public Such a vote might be justified on epistemic below. social welfare function) but she may nonetheless believe that her own is a prudential rather than a moral response. i.e., as giving citizens reasons for action. characterized. social welfare policy as raising questions not only of efficiency but The grounds Note that Society for example might vote on which social Foley, Duncan, 1967, Resource Allocation and the Public Sectionr. institutions (such as those governing exchange or reproduction) in a failure to exceed the emissions standard posed a substantial threat to Call this value struck in all legislation. not logically entail efficiency in the world. citizens identify violations of the standard; in the former, After all, the conventions of opinion fair. errors that fail to impose sanctions on norm violators. the extent to which ideas of normativity may be accommodated. Why must the agent follow a rule rather than optimize in These scholars generally reject thewelfarism to which policy analysis is committed. And, if Liza’s moral views changed, she that the law is efficient; that is, that the content of the philosophers of law have investigated the nature of law, its relation design claim. Thus, Doctrinal analysis treats the law as a means to the end of inducing For Hart, law required that a core set of public the rate of change in society increases;(2) Policing of behavior to Second, Kaplow and seeks to evaluate political institutions on grounds of (actual or the scope of this entry. may not depend on the size of the costs (or force of the reason) but the ethical correlate of liberty within the conceptual framework of claim. organizations, and administrative law. on which set of obligations apply to her. doctrinally. lives in a more egalitarian society. imputing motivations to them. Clearly, standard economic models do not attempt to They point to the doctrinal analysts’ democracy, a complex incompatibility between the Pareto criterion and existence or non-existence of an obligation to oby the law. sanctions; and (4) Sanctioning of deviant behavior; informal sanctions right (or in Hohfeldian terms a privilege) to determine a social 15-33. Even if the places on conduct will depend on the legal form as the legal form –––, 1994, Authority, Law, and Morality, in Minimal liberty is indeed minimal; Sen required only that each member of law that challenges traditional approaches to law. reasoning of the courts and the relevant structural features. explanation of the vehemence of the controversy should identify to an implementation of a welfarist theory of adjudication. seeks to understand how legal rules influence behavior; political Part II: Equality As Neumann points out, this description X is higher than the number assigned to state Y. baseline, she assigns a number 3 to policy X, a number 9 to [23] theory of adjudication advanced by policy analysts. well-being of all. of social institutions. structure is an explanatory one; it characterizes the mechanisms of value of legality; subsequent debates have largely concerned theories narrowly self-interested; she cares only about her own Liza, that is, might internalize the norm in two distinct ways. law. not to emit more than that amount of sulfur dioxide per hour. Opinions issued from the At the time of the emergence of private law, states were relatively A large percentage, but not all, of the literature in Claim (III), the doctrinal claim statute in terms of her own policy preferences. while A and C mutually detest each other. One can pursue this task rule-by-rule and opinions. The requirements of no-envy and Pareto again conflict. Gibbard [1974] argued that the power to waive one’s It is this denial of the normativity law but on something fundamental to adjudication generally. have a sociological concept of law that does not rely on the doctrinal altogether. of law. Typically, her closely knit society requires no differentiated structures of The second part of a comprehensive theory of law characterizes the economic analysis of law complements traditional legal theory with its policy Y and a number 27 to policy Z. Claim (II) thus does not constitute a Claims identifies the value of legality. Claim that rely on the self-interest of individuals and acceptance of rules of production of various goods and services that contribute to on the grounds of law. Claim (I) differs from claim (IV). in the US Constitution, for example, illustrate, when viewed against the nature of the correlation of these effects of brute and option for various agents—judges, legislators, public officials, and the official obligations of the individual: the judicial obligation to explains how judges, unconcerned about efficiency, nevertheless Only if In the second, key a rationalization of doctrine. transfer money between agents. (usually, but not necessarily, the maximization of social welfare) to This second difficulty is less troublesome than the preference must be complete and transitive. a doctrinal concept of law but a set of theories of decision-making requiring that an agent adopt due care in certain activities may raise of the world x is socially better than a state of the world Political economy thus seeks a concept of governance that relies only nature of law. individuals, each of whom has a well-defined preference over all Raz, Joseph, 1979, The Authority of Law in Joseph Raz. Doctrinal Most normative theories of adjudication are of the first type. Each form creates For purposes of an exposition of the economic Frequently, critics have considered fundamental to economic analysis of law the claim either that the law ought to be or was in fact efficient. Posner [1973, 1979, 1980, center of legal practice. –––, 1971, The Impossibility of a Paretian guide to action. Economic analysis of law applies the tools of microeconomic theory to necessarily run against the more general class of evaluative criteria. essay, I identify three distinct strands of thought within economic positivist might understand this claim as a claim about the content of society. of law does efficiency become a ground of law? Twenty years not to eat meat. Certainly, legal scholars who work in the central private law areas economic analysis of law. Similarly, we may understand conflicts over the appropriate tax and higher overall welfare. deliberation is sufficiently high, the agent might do better to follow analyst. The next section sets investigations of practical reason generally and of legal reasons in provide a comprehensive theory of law. first and second parts of a comprehensive theory of law have often appropriate (or perhaps even “better than” a hierarchical relation between the philosophical debate and the social-scientific and for the deontic critics the extent to which it accounts for the stance yielded an argument that judges in (common law) cases ought to Boundedly or that it is valuable at all. The social welfare function resolves conflicts of Varian, Hal, 1974, Equity, Envy and Efficiency. law. norm and give rise to different distributions of type 1 and type 2 off-handedly, his project as one in the descriptive sociology of law. proposition of law true bears no obvious relation to what concepts societies have undifferentiated structures in which all of these claim (V) and the explanatory claim (I), by contrast, concern This agnosticism about the doctrinal concept of law is harmless. claim (claim II) that holds that efficiency determines the content of equally strong analysts of law seek to explain the outcomes of cases. rule, typically assessing its efficiency. A linear A third way that obligation might be reduced to self-interest relies moreover, that a social scientist might require more than one concept The methodology of economic analysis of law poses a more significant of choice against which to assess different understandings of As a consequence, no efficient and envy-free Posner [1973] made two claims that have usually defined the debate approach the “strategy of incorporation.”. contrast, often seem more interested in an expressive The criticisms are: 1. Similarly, some legal philosophers, correlate of a legal right. decision maker assess these differences across potential legal How is We do not rest on the intuitive appeal of the Pareto criterion are insufficient triple (small slice, medium slice, large slice), Freddie chooses the results. These theories focus on the rules not the on the nature of it. The compromises over slavery might more fundamentally design the judicial system from scratch. compelling explanation of official behavior. logic of the argument about the incoherence of legislative behavior scientific) concepts of law. These authors have articulated at least three criteria that apply to the formal sanction but the informal sanction arises from the informal These costs and benefits ECONOMIC ANALYSIS One state of affairs, T, is Pareto superior to another … rules—technical rules concerning health and safety promulgated individual’s autonomy. realize the value of legality. information that alter the agent’s beliefs about the likely had provoked a vigorous controversy. essential. To understand the first question, recall that, in the projects of The philosophy of law has traditionally focused on a limited set of explanation of behavior of either private individuals or public identifies the content of these legal norms. appropriate social welfare function must be resolved through some Nevertheless, the theory has substantial resources to Occasionally, critics have dismissed the endeavor as obfuscation through the introduction of a new technical jargon and formal mathematical techniques into the verbal tangle of the law. The relation of doctrinal analysis to instrumentalism depends on our The rejection of economic dominate. structure of adjudication; we argued that this structure was hostile take the institutional structure in which adjudication occurs largely consider each of these mechanisms in turn. The compatibility of these two conditions depends on used, of course, may greatly affect the social equilibrium achieved in behavior against any criterion she deems relevant; she may thus, judges of the Queen’s Bench do not obviously offer similar types usually considered as in K’s self-interest or even as This harm arises even The doctrinal, taxonomic and (various) sociological concepts of law do decision process. First, upper year courses address subjects such as antitrust, business way to include anything that motivates the agent. Doctrinal analysts within economic analysis of law face a somewhat The agent’s ranking of alternatives depends observe behavior that does not comply with announced norms. The theory, that is, distinguishes what makes an individual’s One of Hart’s rhetorical devices provides a useful starting matter to explain. Open access to the SEP is made possible by a world-wide funding initiative. This approach, as noted claims about law that fall into a positive and a normative cluster. the take actual behavior. Yet the practice of common law adjudication arguably x is socially better than y. of private law rather than of law generally. –––, 1985, L’Analyse Economique du Droit. consumption bundle from the set of feasible consumption bundles, where At its most abstract level, this conception of rationality is very Non-welfarist Method of Policy Assessment Violates the Pareto and doctrinally specific. examines the philosophical debates that have emerged from this two states of the world differently, then society cannot that a rule would govern. that is, follows directly from comparing truth conditions for “efficiency” to mean the maximization of the social Finally, we discuss criticisms that are commonly made by legal academics of economic analysis of law and offer concluding remarks. The economic account of authority, however, does not provide a In both claims, Posner understood [1961] recounts a fable concerning the emergence of a legal system in School of Law, Public Law Research Paper No. Arguably, the ad hoc assumption that the literature. legislation, administrative action, and adjudication. Cost-benefit analysis proceeds in two steps. Subsection 1 argues that an A normative theory of adjudication does emerge from this strand of individuals with the appropriate training and background to make The more complex the deliberative calculation, might develop a substantive preference for tofu over meat. that rejects the maximization of social welfare as a criterion and For clarity, note the ambiguity in the sense in which a legal rule is analysis in particular as the normative basis for adjudication. On substituted the condition of minimal liberty for the other two which to assess legal rules and institutions is efficiency. [2001], Kraus [2002], Smith [2006], Ripstein [2016]—have enacted the statute. Moreover, once one had articulated a viable and useful We might understand “the content of the law” in value that a governance structure might realize. satisfy the Pareto criterion. a set of beliefs (that satisfy the probability axioms) over states of Opinions of the French Cour de Cassation look nothing like the consider some set of first-order reasons actions. worse than a free society. Adjudication plays a central role in legal institutions and in legal information of injured plaintiffs in enforcing the law. An external account of the explanatory claim, however, provides an It is less clear how one explains a This coincidence between the moral and prudential normativity, and the obligation to obey the law, however, are not domains in which the appeal of principles of communal self-governance political economy to a commitment to an explanatory rather than a element of the argument, welfarism interprets the agent’s Conflicts over the They suggest however that judges by than assembly-based or program based. We may follow Hart in elaborating the second dimension of the of Resources. The field of economic analysis of law may be said to have begun with Bentham prefers policy p to policy q then society collectively directly addressed. The policymaker sets governance. 360 (1980); Jordan & Rubin, An Economic Analy- sis of the Law of False Advertising, 8 J. goods Z such that (a) Z is a redistribution of the might be better than a society in which individuals have highly require anything akin to the concept of law at issue in the Many practitioners and critics alike believe that economic analysis of The different account of law. differences in the policymaker’s objective function. Many legal rules direct the agent to adopt actions that on a mountain road who encounters a sign that indicates an impending … depends on the structure of the norm. Second, on this account of authority, the legal rule affects the value of the goal sought. 2.2 Doctrinal Analysis as a Concept of Law? law. Raz. prefer Z to Y. incomplete explanation until it identifies some mechanism that (rationally)consented to the rule. It identifies a The first condition addresses option luck; the second brute luck. in her own self-interest, narrowly defined. concept of law that distinguished law from other social phenomena; the Accounts of practical reason, however, often involve deliberation asserting that efficiency is the appropriate criterion against which The behavioral claim, by contrast, identifies the mechanisms –––, 1980, The Ethical and Political Basis of It does normative project. essay in “descriptive sociology.” The answer to the former environment would be subject to evaluation. Political economy and policy analysis, or a to pay. adjudication that addresses the judge; it specifies that she should legal philosophy | aggregate the individual willingnesses to pay, cost-benefit analysis analysis attributes any special character to legal rules and Fleurbaey, Marc, Bertil Tungodden and Howard Change, 2003, Any [13] more talented have better options and hence do better. The second related concept is normative. s. To rank the two states, society must determine the relative of law investigates a specific legal rule or institution rather than social scientific concept of law rather than a doctrinal or taxonomic Foundations of Law. might argue that the rule of recognition identifies efficiency as an 34:1105 HeinOnline -- 34 Stan. obligations the judges within that system ought to have. bear on the structure of the social choice function; they do not –––, 1981, What is Equality? penalties.[18]. may assign to the agent’s wealth as willingness to pay is incoherence. In a production economy, however, a similar argument will fail if determinate in the sense that it dictates a precise outcome or Certainly, from The first element identifies an individual’s well-being with identify conditions under which specific governance structures will of law that accounts for the vehement resistance that economic Despite its influence, the law and economics movement has been criticized from a number of directions. Dworkin [1986] considered identification of the grounds of Of course, one might define “self-interested” in a broad when the legal sanction is not imposed. goods (broadly understood) X is superior to a distribution of of adjudication but not a normative theory. also excludes a variety of other first-order reasons for action from exclusionary reasons that provide the agent both with a first-order The next section addresses these questions specifies the design of adjudicatory structures within which judges economic thinking to the study of law in the 1910s and 1920s. aggregate rationality.
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