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Economic Analysis of Law (Casebook)
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Economic Analysis of Law (Casebook) Customer Reviews
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♥♥♥♥♥ |
Overrated simplistic reasoning
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First of all, the law and economics movement did not originate with Richard Posner. To his credit, he does reference the men who collectively formulated the modern utilitarian theory called "law and economics." Pay attention to the enormous amount of spelling errors and poor syntax in the first edition. The book seems like it was rushed to the presses in order to capitalize on something.
Posner makes several invalid claims, the chief of which states that judge made law followed the logic of the law and economic movement. That is, judges allegedly were concerned with maximizing in utilitarian fashion the distribution of wealth to its most productive use. When he thinks the courts should honor efficient breaches, he contradicts this former thesis since it only proves judges don't act "entirely" in a utilitarian fashion.
I think there is some merit to this law and economic position with regard to contracts, which is why I predicate the above sentence with "entirely." With regard to contracts, the courts definitely have an economic incentive in addressing damages. However, with regard to torts or criminal law or other areas of law, the economic incentive wanes in significance. It waxes in significance only with contracts because contracts is a business as usual enterprise.
Overall, the law as developed by common law judges is deontological, not utilitarian. The word "deon" is Greek and means "duty." In theories of ethics, we refer to a theory as deontological when the theory mandates that we judge decisions according to how they conform with a prescribed duty. In contrast, consequentialism mandates that we judge actions according to their consequences (in other words, the ends justify the means). Situation ethics mandates that moral principles should change in order to accomodate the change in circumstances. Deontological ethics mandates that a change in circumstances does not permit a modification of moral principle. Modern ethicists like John Rawls state in utilitarian fashion that our decisions should maximize the good. Who defines the good? Aretaic theories stress not consequences or duty or the good but rather the individuals appropriation of good "character." "Arete" in Greek means "virtue" or "excellence in character." Aristotle was aretaic. Decisions should be made to cultivate and create good character. If they do this, they are good decisions. Deontology says that decisions can be wrong even if the consequences are good, even if good character results and even if there is a change of circumstances that makes the duty seem incorrect in application.
The logic of the common law has always been deontological. The modern utilitarian theory of law and economics does shed light on how common law judges formed their opinions in contract law, but in all other branches of law it is grossly incorrect and is a gross anachronism to posit that common law judges were Pareto Superior in their other decision making.
Most false theories are based on exchanging "both/and" for "either/or." It would be incorrect to say that contracts was either deontological or utilitarian (law and economics type of utilitarian). Therefore, Posner says a half truth when he says contracts is law and economics type of thinking. It is both deontological and law and economics, since both logics have played a role in judicial decisions. However, it is primarily deontological as shown by the fact that even modern judges refuse to honor efficient breaches of contract. Law and economic type of thinking operated as a lemma in indented proof when judges made their deontological decisions. After evaluating the relationship between the rights and duties of a particular case, they wouldn't go overboard and give the winning party in a contract action a windfall. To prevent windfalls and other ways of going overboard, judges would try to be economically efficient. Jurisprudence is making prudent judgments on legal matters. It is pathetic that a 7th Circuit judge like Posner has such poor judgment with regard to saying what the law is. The public can think that neo-conservative moron George Bush for appointing this moron to the 7th Circuit court. |
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