Skip to main content Accessibility help
×
Home
Hostname: page-component-684899dbb8-ct24h Total loading time: 0.766 Render date: 2022-05-24T09:34:13.793Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true }

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 D. White
Affiliation:
City University of New York
Get access

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
Publisher: Cambridge University Press
Print publication year: 2008

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

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. 1232–1262CrossRefGoogle Scholar
Easterbrook, Frank, 1983, “Criminal Procedure as a Market System,” Journal of Legal Studies, 12, pp. 289–332CrossRefGoogle Scholar
Dau–Schmidt, Kenneth, 1990, “An Economic Analysis of the Criminal Law as Preference-Shaping Policy,” Duke Law Journal, 1, pp. 1–38CrossRefGoogle 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. 169–217CrossRefGoogle Scholar
Coase, Ronald, 1960, “The Problem of Social Cost,” Journal of Law and Economics, 3, pp. 1–44CrossRefGoogle 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. 1–16CrossRefGoogle 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. 363–381CrossRefGoogle 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, 394CrossRefGoogle 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. 537–552CrossRefGoogle Scholar
Pitkin, Hanna, 1972, Wittgenstein and Justice, Berkeley: University of California PressGoogle Scholar
Rawls, John, 1955, “Two Concepts of Rules,” Philosophical Review, 64, pp. 3–32CrossRefGoogle 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. 219CrossRefGoogle 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. 908–911CrossRefGoogle 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. 1193CrossRefGoogle Scholar
Sherman, Lawrence, 1993, “Defiance, Deterrence, and Irrelevance: A Theory of the Criminal Sanction,” Journal of Research in Crime and Delinquency, 30, pp. 445–473CrossRefGoogle Scholar
Anderson, David, 2002, “The Deterrence Hypothesis and Picking Pockets at the Pickpocket's Hanging,” American Law and Economics Review, 4, pp. 295–313CrossRefGoogle Scholar
Pogarsky, Greg, 2002, “Identifying ‘Deterrable’ Offenders,” Justice Quarterly, 19, pp. 431–442CrossRefGoogle 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, 206CrossRefGoogle Scholar
Cooter, Robert, 1984, “Prices and Sanctions,” Columbia Law Review, 84, pp. 1532–1533CrossRefGoogle 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. 137–140CrossRefGoogle ScholarPubMed
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. 246CrossRefGoogle 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. 69–70CrossRefGoogle Scholar
Pitkin, Hanna, 1990, “Slippery Bentham,” Political Theory, 18, p. 104CrossRefGoogle 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. 1540–1541CrossRefGoogle Scholar
Sagoff, Mark, 1986, “Values and Preferences,” Ethics, 96, p. 303CrossRefGoogle 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. 475–493CrossRefGoogle 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. 1–68CrossRefGoogle 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. 104–105CrossRefGoogle Scholar
Wittgenstein, Ludwig, 1950–1951/1969, On Certainty, New York: Harper and RowGoogle Scholar

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×