There's been a vogue lately, exemplified by John Rawls' influential
A Theory of Justice (1971), for using economic concepts in theories
of law and public policy. Here, Posner (Univ. of Chicago Law
School) specifically attacks Rawls' school of thought, labeling it
utilitarianism. This school argues that the essential measuring
stick, in determining law and policy, should be that if someone
advances, no one else is adversely affected. Posner objects on
grounds of consistency and comprehensiveness, pointing out the
difficulty of measuring the advances and setbacks. Instead he
proposes a more classical economic model, based on wealth
maximization. If we always and everywhere, he contends, seek to
maximize wealth in the aggregate, we will have a sure yardstick,
since such a theory depends upon consent; that is, the parties to
an agreement or exchange enter into it because they both expect to
gain. To make his theory stick, Posner goes back in time and tries
to show that market behavior and wealth maximization as a theory of
justice underlie primitive social relations and pre-date the
emergence of the state. His test case here is the world of Homer -
where, in The Iliad and The Odyssey, he professes to discern a
society that functioned on the basis of exchange and reciprocity.
To do this, however, he has to misconstrue the nature of
gift-exchange in the Homeric world; that is, to see the gift
relation as a market transaction, whereas the actual exchange was
secondary to the social cohesion it propagated - and supply and
demand played no role in determining the value of the objects
exchanged. Posner's wish is to show that people got along without
the state (and only needed it for defense when it did arise); he
can thus view the legal system as a codification of customary
practices that are essentially market practices. The whole theory,
however, is built on a specious interpretation of custom as
unchanging - in Posner's case, a specious, market-oriented
interpretation. He goes on further to argue that privacy law can
best be approached in terms of the cost that people are willing or
unwilling to bear in order to obtain information; and this leads
him into a detailed study of privacy laws to see what difference
they make. (They make more sense in protecting people from
government than in the private realm, he concludes.) The
investigation ends with a discussion of discrimination, where
Posner discovers - not surprisingly - that there is no economic
sense to affirmative-action laws. Posner stands out for trying to
ground the new cost/benefit approach to law in custom, and his
blinkered failure to do so has its importance too. (Kirkus Reviews)
Richard A. Posner is probably the leading scholar in the rapidly
growing field of the economics of law; he is also an extremely
lucid writer. In this book, he applies economic theory to four
areas of interest to students of social and legal institutions: the
theory of justice, primitive and ancient social and legal
institutions, the law and economics of privacy and reputation, and
the law and economics of racial discrimination.
The book is designed to display the power of economics to
organize and illuminate diverse fields in the study of nonmarket
behavior and institutions. A central theme is the importance of
uncertainty to an understanding of social and legal institutions.
Another major theme is that the logic of the law, in many ways but
not all, appears to be an economic one: that judges, for example,
in interpreting the common law, act as if they were trying to
maximize economic welfare.
Part I examines the deficiencies of utilitarianism as both a
positive and a normative basis of understanding law, ethics, and
social institutions, and suggests in its place the economist's
concept of "wealth maximization." Part II, an examination of the
social and legal institutions of archaic societies, notably that of
ancient Greece and primitive societies, argues that economic
analysis holds the key to understanding such diverse features of
these societies as reciprocal gift-giving, blood guilt, marriage
customs, liability rules, and the prestige accorded to generosity.
Many topics relevant to modern social and philosophical debate,
including the origin of the state and the retributive theory of
punishment, are addressed. Parts III and IV deal with more
contemporary social and jurisprudential questions. Part III is an
economic analysis of privacy and the statutory and common law rules
that protect privacy and related interests-rules that include the
tort law of privacy, assault and battery, and defamation. Finally,
Part IV examines, again from an economic standpoint, the
controversial areas of racial and sexual discrimination, with
special reference to affirmative action. Both Part III and Part IV
develop as a subtheme the issue of proper standards of
constitutional adjudication by the Supreme Court.
General
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