Abstract
AbstractIn an appropriation of jurisprudence away from moral philosophy in the name of advancing positive science, the economic analysis of law repudiates judicial responsibility in regard to human freedom and rights. I argue that the moral freedom and responsibility presupposed by a system of legal rights should not be eclipsed by narrow causal determinism but instead upheld by proper judicial discernment of wider temporally balanced structures of legal rights within such a system. Indeed, this is part of a wider claim that moral philosophy at large proceeds at its best by means of a temporally holistic reasoning process. I am interested in exposing and challenging theoretical bias and unacknowledged assumptions about time-value – in particular the privileging of future outcomes – lurking behind the economic analysis of law philosophy.
Highlights
In an appropriation of jurisprudence away from moral philosophy in the name of advancing positive science, the economic analysis of law repudiates judicial responsibility in regard to human freedom and rights
Economic analysis of law uses concepts from micro-economic theory to analyse legal rules and institutions. Such an approach adopts the idea of rational action that is at the heart of micro-economic theory
The notion of rational action in economic theory holds that each agent will act to maximize her or his preferences no matter what environment is being considered
Summary
Economic analysis of law uses concepts from micro-economic theory to analyse legal rules and institutions. Such an approach adopts the idea of rational action that is at the heart of micro-economic theory. The notion of rational action in economic theory holds that each agent will act to maximize her or his preferences no matter what environment is being considered. What is termed the “positive” thesis says that, as a factual matter, the legal rules of common law are efficient. Under the guise of the economic analysis of law approach, judges become emboldened to exercise activist inclinations, using legal rhetoric about rights instrumentally to advance various social agendas. For the law and economics movement, such agendas are grounded in a peculiar ideology of rational choice, efficiency, pareto optimality, and wealth maximization. All that exists are competing preferences to be understood and arranged according to causally determined scientific laws
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