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Does Economic Analysis of Law Need Moral Foundations?: Comment on Chein

Published online by Cambridge University Press:  06 March 2019

Giovanni Tuzet

Abstract

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In this short paper commenting on Chein's contribution to the present and special issue of this Journal, I ask whether economic analysis of law, when understood as supporting, in particular, the state intervention in the market, needs moral foundations. This seems to be one of the claims made by Chein, and my answer is certainly “yes.” Economic analysis of law and state intervention in the market certainly need some moral ground (utilitarian, Kantian, or else). What I resist is Chein's claim that they need the complex theoretical construction of Dworkin's idea of integrity plus Taylor's idea of identity and Bankowski's idea of living lawfully.

Type
Part A: Political Theory and Constitutional Reasoning
Information
German Law Journal , Volume 14 , Issue 8: Special Issue - Constitutional Reasoning , 01 August 2013 , pp. 1163 - 1170
Copyright
Copyright © 2013 by German Law Journal GbR 

References

1 Marcos Vinício Chein Feres, Law as Integrity and Law as Identity: Legal Reasoning, State Intervention, and Public Policies, 14 German L.J. 1147 (2013).Google Scholar

2 What guises? These especially include other normative guises supported by moral grounds. Explanatory guises are included when the analysis needs some moral concepts like (though different from one another) expected utility, social welfare, well-being, human flourishing, etc.Google Scholar

3 As I said, I use “morally” in a broad sense encompassing utility and efficiency concerns. See, e.g., Richard Posner, Utilitarianism, Economics, and Legal Theory, 8 J. Legal Stud. 103 (1979); Coleman, Jules, Markets, Morals and the Law (1988); Dworkin, Ronald M., Justice in Robes ch. 2–3 (2006).Google Scholar

4 Chein, , supra note 1, at 1148.Google Scholar

5 Id. at 1149.Google Scholar

6 Id. at 1147.Google Scholar

7 Id. Google Scholar

8 Id. at 1148.Google Scholar

9 Id. Google Scholar

10 Id. at 1147–8.Google Scholar

11 Id. at 1148.Google Scholar

12 Id. Google Scholar

13 Id. at 1149.Google Scholar

14 See Dworkin, Ronald M., Law's Empire (1986).Google Scholar

15 On law and fictions, cf. Giovanni Tuzet, How Fictions are Credible, in Fictions and Models: New Essays 389 (John Woods ed., 2010).Google Scholar

16 See Mackie, John, The Third Theory of Law, 7 Phil. & Pub. Aff. 3 (1977); see also Herbert L. A. Hart, The Concept of Law (1961). By the way, let me say that Hart's analysis leaves room for judicial discretion and is by no means “legalist” as Chein has it. See Chein, supra note 1, at 1159.Google Scholar

17 Id. at 1151.Google Scholar

18 Taylor, Charles, Sources of the Self: The Making of the Modern Identity 25 (1989).Google Scholar

19 Chein, , supra note 1, at 1152.Google Scholar

20 Id. at 1154.Google Scholar

21 Bankowski, Zenon, Living Lawfully: Love in Law and Law in Love 33 (2001).CrossRefGoogle Scholar

22 Chein, , supra note 1, at 1157.Google Scholar

23 Id. Google Scholar

24 Notwithstanding some hardly intelligible phrases like this, referring implicitly to Taylor, I guess: “Identity in law is a means of providing this continuous explosion of love in legal practice.” Id. On Dworkin, instead, it is said that according to Bankowski we should “replace the chain novel metaphor with soap opera narratives,” since the latter give the interpreter more creativity. Id. at 1158. So far so good; but, is it necessary for Chein's purpose?Google Scholar

25 Id. at 1159.Google Scholar

26 Id. Google Scholar

27 Id. Google Scholar

28 Id. at 1160.Google Scholar

29 See Coleman, , supra note 3.Google Scholar

30 As it happens, while I'm writing this paper, with the Italian case of the “Ilva” factory in Taranto.Google Scholar

31 See Calabresi, Guido & Bobbit, Philip, Tragic Choices (1978).Google Scholar

32 Chein, , supra note 1, at 1162.Google Scholar

33 I borrow this distinction from William James’ Pragmatism, where one of the distinguishing marks is that tender-minded philosophers are rationalistic and go by principles, while tough-minded are empiricist and go by facts. See William James, The Meaning of Truth: A Sequel to ‘Pragmatism’ 13 (1975).Google Scholar