Efficiency, Practices, and the Moral Point of View: Limits of Economic Interpretations of Law

doi:10.1017/CBO9780511575488.007

5 - Efficiency, Practices, and the Moral Point of View: Limits of Economic Interpretations of Law

Published online by Cambridge University Press: 06 July 2009

Mark Tunick

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Mark D. White

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Mark D. White: Affiliation:
City University of New York

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Summary

Law-and-economics theories treat legal issues as economic problems. Because society has limited resources to devote to its legal institutions, it is important to consider their economic costs in deciding how these institutions are best operated. I shall argue, however, that for a theory to be persuasive in either explaining or prescribing legal rules, it needs to recognize moral ideals apart from economic efficiency, such as justice and fairness, that may account for why we have legal institutions in the first place and that may be essential to our finding them acceptable.

LAW AND ECONOMICS AS EXPLANATIVE AND NORMATIVE THEORY

Economic approaches to law generally assume that human behavior can be understood as the result of people's rational choices to maximize their utility or satisfy their preferences. Some law-and-economics proponents use this assumption to explain why practices emerge or predict how people will respond to rewards or punishments. Some use this together with another assumption, that social and legal policy ought to be driven by the goal of promoting or maximizing social utility or welfare, to generate prescriptive or normative theories. For example, on the law-and-economics approach, the purpose of punishment is to deter undesirable conduct that diminishes social utility. A sanction deters by imposing a cost on potential criminals; the harsher the sanction, the higher the price of committing crime. Imposing sanctions has a social cost that must be weighed against the utility of deterring crime.

Type: Chapter
Information: Theoretical Foundations of Law and Economics , pp. 77 - 95

DOI: https://doi.org/10.1017/CBO9780511575488.007 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2008

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References

Ulen, Thomas, 2005, “Human Fallibility and the Forms of Law,” in Parisi, Francesco and Smith, Vernon L., eds., The Law and Economics of Irrational Behavior (Stanford, CA: Stanford University Press), pp. 397–424Google Scholar

Shavell, Steven, 1985, “Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent,” Columbia Law Review, 85, pp. 1232–1262CrossRef Google Scholar

Easterbrook, Frank, 1983, “Criminal Procedure as a Market System,” Journal of Legal Studies, 12, pp. 289–332CrossRef Google Scholar

Dau–Schmidt, Kenneth, 1990, “An Economic Analysis of the Criminal Law as Preference-Shaping Policy,” Duke Law Journal, 1, pp. 1–38CrossRef Google Scholar

Cooter, Robert, 2006, “The Intrinsic Value of Obeying Law,” Fordham Law Review, 75, pp. 1275–1285Google Scholar

Kaplow, Louis and Shavell, Steven, 2002, Fairness versus Welfare, Cambridge, MA: Harvard University PressGoogle Scholar

Becker, Gary, 1968, “Crime and Punishment: An Economic Approach,” Journal of Political Economy, 76, pp. 169–217CrossRef Google Scholar

Coase, Ronald, 1960, “The Problem of Social Cost,” Journal of Law and Economics, 3, pp. 1–44CrossRef Google Scholar

Polinsky, A. Mitchell and Shavell, Steven, 1999, “On the Disutility and Discounting of Imprisonment and the Theory of Deterrence,” Journal of Legal Studies, 28, pp. 1–16CrossRef Google Scholar

Polinsky, A. Mitchell, 1989, An Introduction to Law and Economics, 2nd ed., Boston: Little Brown, pp. 77–78Google Scholar

Jolls, Christine, 2005, “On Law Enforcement with Boundedly Rational Actors,” in Parisi and Smith, The Law and Economics of Irrational Behavior, pp. 268–286Google Scholar

Posner, Richard, 1992, Economic Analysis of Law, 4th ed., Boston: Little Brown, p. 230Google Scholar

Bentham, Jeremy, 1781/1988, The Principles of Morals and Legislation, New York: Prometheus BooksGoogle Scholar

Posner, Richard, 2006, “Common-Law Economic Torts: An Economic and Legal Analysis,” Arizona Law Review, 48, p. 736Google Scholar

Melamud, A. Douglas, 1972, “Property Rules, Liability Rules, and Inalienability,” Harvard Law Review, 85, p. 1128Google Scholar

Stout, Lynn, 1992, “Strict Scrutiny and Social Choice,” Georgetown Law Journal, 80, p. 1834Google Scholar

Shavell, Steven, 2004, Foundations of Economic Analysis of Law, Cambridge, MA: Harvard University Press, pp. 537–539Google Scholar

Kahan, Dan M., 1998, “Social Meaning and the Economic Analysis of Crime,” Journal of Legal Studies, 27, pp. 616–620Google Scholar

Glaeser, Edward and Sacerdote, Bruce, 2003, “Sentencing in Homicide Cases and the Role of Vengeance,” Journal of Legal Studies, 32, pp. 363–381CrossRef Google Scholar

Posner, Richard, 1998, “The Problematics of Moral and Legal Theory,” Harvard Law Review, 111, pp. 1671, 1638Google Scholar

Rowley, Charles, 1981, “Social Sciences and Law: The Relevance of Economic Theories,” Oxford Journal of Legal Studies, 1, pp. 391–392, 394CrossRef Google Scholar

Ulen, Thomas, 2004, “The Unexpected Guest: Law and Economics, Law and Other Cognate Disciplines, and the Future of Legal Scholarship,” Chicago-Kent Law Review, 79, pp. 405, 408Google Scholar

Posner, Richard, 1998, “Social Norms, Social Meaning, and Economic Analysis of Law,” Journal of Legal Studies, 27, p. 565Google Scholar

Ellickson, Robert, 1998, “Law and Economics Discovers Social Norms,” Journal of Legal Studies, 27, pp. 537–552CrossRef Google Scholar

Pitkin, Hanna, 1972, Wittgenstein and Justice, Berkeley: University of California PressGoogle Scholar

Rawls, John, 1955, “Two Concepts of Rules,” Philosophical Review, 64, pp. 3–32CrossRef Google Scholar

Posner, Eric, 2000, Law and Social Norms, Cambridge, MA: Harvard University Press, p. 26Google Scholar

Rawls, John, 1971, A Theory of Justice, Cambridge, MA: Harvard University Press, p. 580Google Scholar

Hill, Claire, 2004, “Law and Economics in the Personal Sphere,”Law and Social Inquiry, 29, p. 219CrossRef Google Scholar

Harris, Marvin, 1989, Cows, Pigs, Wars, and Witches, New York: Vintage, pp. 35–45Google Scholar

Sunstein, Cass, 2005, “On the Psychology of Punishment,” in Parisi and Smith, The Law and Economics of Irrational Behavior, pp. 342, 353Google Scholar

Koenigs, Michael, Young, Liane, et al., 2007, “Damage to the Prefrontal Cortex Increases Utilitarian Moral Judgments,” Nature, 446, pp. 908–911CrossRef Google Scholar

Friedman, Milton, 1953, “The Methodology of Positive Economics,” in Essays in Positive Economics, Chicago: University of Chicago Press, pp. 3–43Google Scholar

Posner, Richard, 1985, “An Economic Theory of the Criminal Law,” Columbia Law Review, 85, p. 1193CrossRef Google Scholar

Sherman, Lawrence, 1993, “Defiance, Deterrence, and Irrelevance: A Theory of the Criminal Sanction,” Journal of Research in Crime and Delinquency, 30, pp. 445–473CrossRef Google Scholar

Anderson, David, 2002, “The Deterrence Hypothesis and Picking Pockets at the Pickpocket's Hanging,” American Law and Economics Review, 4, pp. 295–313CrossRef Google Scholar

Pogarsky, Greg, 2002, “Identifying ‘Deterrable’ Offenders,” Justice Quarterly, 19, pp. 431–442CrossRef Google Scholar

Wright, Bradley et al., 2004, “Does the Perceived Risk of Punishment Deter Criminally Prone Individuals?,” Journal of Research in Crime and Delinquency, 41, pp. 188, 206CrossRef Google Scholar

Cooter, Robert, 1984, “Prices and Sanctions,” Columbia Law Review, 84, pp. 1532–1533CrossRef Google Scholar

Frank, Robert, 2005, “Departures from Rational Choice: With and without Regret,” in Parisi and Smith, The Law and Economics of Irrational Behavior, pp. 20–25Google Scholar

Murphy, Richard, 1996, “Property Rights in Personal Information: An Economic Defense of Privacy,” Georgetown Law Journal, 84, pp. 2381–2417Google Scholar

Putterman, Louis, eds., 1998, Economics, Values, and Organization, Cambridge: Cambridge University Press, pp. 337–363

Fehr, Ernst and Gächter, Simon, 2002, “Altruistic Punishment in Humans,” Nature, 415, pp. 137–140CrossRef Google Scholar PubMed

Tunick, Mark, 1992, Punishment: Theory and Practice, Berkeley: University of California PressGoogle Scholar

Coleman, Jules, 1985, “Crime, Kickers, and Transaction Structures,” in Pennock, J. Roland and Chapman, John W., eds., NOMOS 27: Criminal Justice, New York: NYU Press, pp. 323–4Google Scholar

White, Mark D., 2006, “A Kantian Critique of Neoclassical Law and Economics,” Review of Political Economy, 18, p. 246CrossRef Google Scholar

Schulhofer, Stephen, 1985, “Is There an Economic Theory of Crime?,” in Pennock and Chapman, Criminal Justice, p. 336Google Scholar

Satz, Debra, 1995, “Markets in Women's Sexual Labor,” Ethics, 106, pp. 69–70CrossRef Google Scholar

Pitkin, Hanna, 1990, “Slippery Bentham,” Political Theory, 18, p. 104CrossRef Google Scholar

Nussbaum, Martha, 2001, “The Literary Imagination in Public Life,” in Kaplan, Fred and Monod, Sylvere, eds., Hard Times, 3rd ed., New York: W.W. Norton, p. 433Google Scholar

Coleman, Jules, 2003, “The Grounds of Welfare,” Yale Law Journal, 112, pp. 1540–1541CrossRef Google Scholar

Sagoff, Mark, 1986, “Values and Preferences,” Ethics, 96, p. 303CrossRef Google Scholar

Kant, Immanuel, 1785/1964, Groundwork of the Metaphysic of Morals, trans. Paton, H. J., New York: Harper and Row, p. 95Google Scholar

Yahya, Moin, 2006, “Deterring Roper's Juveniles: Using a Law and Economics Approach to Show that the Logic of Roper Implies that Juveniles Require the Death Penalty More than Adults,” Penn State Law Review, 111, pp. 53–106Google Scholar

Cooter, Robert, 1999, Strategic Constitution, Princeton, NJ: Princeton University Press, p. 287Google Scholar

Siprut, Joseph, 2006, “Privacy through Anonymity: An Economic Argument for Expanding the Right of Privacy in Public Places,” Pepperdine Law Review, 33, pp. 324–325Google Scholar

Fried, Charles, 1968, “Privacy,” Yale Law Journal, 77, pp. 475–493CrossRef Google Scholar

Bloustein, Edward, 1964, “Privacy as an Aspect of Human Dignity,” New York University Law Review, 39, pp. 962–1007Google Scholar

Packer, Herbert, 1964, “Two Models of the Criminal Process,” University of Pennsylvania Law Review, 113, pp. 1–68CrossRef Google Scholar

Radin, Margaret Jane, 2001, Contested Commodities, Cambridge, MA: Harvard University PressGoogle Scholar

Lott, John, 2000, More Guns, Less Crime, Chicago: University of Chicago PressGoogle Scholar

Pojman, Louis P. and Reiman, Jeffrey, 1998, The Death Penalty: For and Against, Lanham, MD: Rowman and LittlefieldGoogle Scholar

Berns, Walter, 1979, For Capital Punishment, New York: Basic BooksGoogle Scholar

Tunick, Mark, 1992, Hegel's Political Philosophy, Princeton, NJ: Princeton University Press, pp. 34–35, 135–138Google Scholar

Whitman, James, 2003, “A Plea against Retributivism,” Buffalo Criminal Law Review, 7, pp. 104–105CrossRef Google Scholar

Wittgenstein, Ludwig, 1950–1951/1969, On Certainty, New York: Harper and RowGoogle Scholar