Skip to main content Accessibility help
×
Home
Hostname: page-component-8bbf57454-khjsh Total loading time: 0.368 Render date: 2022-01-22T01:03:32.522Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

7 - Justice, Mercy, and Efficiency

Published online by Cambridge University Press:  06 July 2009

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

Summary

If one proposes to consider mercy and efficiency under the same heading, the aim surely must be to draw a contrast. For we associate mercy not only with leniency but with a fine sensitivity to circumstances and both the ability and the disposition to sympathize. No matter what the context in which we contemplate it, efficiency carries none of these associations. It requires no well-trained sensitivities or dispositions. These are time-consuming to develop and costly to employ. A mathematical formula, ready-to-hand and relatively simple to apply, much better suits efficiency's focus on savings.

This general division between mercy and efficiency carries over to their more specialized application in legal contexts. Here mercy urges attention to facts and circumstances that we might ignore if we focused solely on what strict justice requires or permits. It is, we might say, a virtuous disposition to leniency marked by a compassionate attention to the circumstances at hand. Efficiency, in its relatively recent incarnation as the guiding principle of the law-and-economics approach to legal interpretation, is perhaps best understood as a means of wealth maximization. Depending on the context, we can use standards including Pareto superiority, the Kaldor–Hicks test, and the Coase theorem to determine what legal standards, or interpretations, will yield the most substantial gains. The chief concern of the economic approach is to achieve Pareto-optimal outcomes, those in which no distributional change could increase utility for one party without decreasing it for another.

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

Murphy, Jeffrie and Hampton, Jean, 1988, Forgiveness and Mercy, New York: Cambridge University Press, p. 66CrossRefGoogle Scholar
Coase, Ronald, 1960, “The Problem of Social Cost,” Journal of Law and Economics, 3, pp. 1–44CrossRefGoogle Scholar
Calabresi, Guido, 1961, “Some Thoughts on Risk Distribution and the Law of Torts,” Yale Law Journal, 70, pp. 499–553CrossRefGoogle Scholar
Posner, Richard, 1973, Economic Analysis of Law, Boston: Little BrownGoogle Scholar
Calabresi, Guido and Malamed, Douglas, 1972, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review, 85, pp. 1089–1128CrossRefGoogle Scholar
Posner, Richard, 1985, “An Economic Analysis of the Criminal Law,” Columbia Law Review, 85, pp. 1193–1231CrossRefGoogle Scholar
Posner, Richard, 1983, The Economics of Justice, Cambridge, MA: Harvard University PressGoogle Scholar
Kant, Immanuel, 1797/1996, The Metaphysics of Morals, Gregor, Mary, ed. and trans., in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy, New York: Cambridge University Press, pp. 355–603Google Scholar
Rawls, John, 1999, A Theory of Justice, rev. ed., Cambridge, MA: Harvard University PressGoogle Scholar
Nozick, Robert, 1974, Anarchy, State, and Utopia, New York: Basic BooksGoogle Scholar
Sen, Amartya, 1999, Development as Freedom, New York: Anchor BooksGoogle Scholar
Nussbaum, Martha, 1990, “Finely Aware and Richly Responsible: Literature and the Moral Imagination,” in Love's Knowledge, New York: Oxford University Press, pp. 148–167Google Scholar
Baron, Marcia, 1995, Kantian Ethics almost without Apology, Ithaca, NY: Cornell University Press, pp. 218–220Google Scholar
Card, Claudia, 1972, “On Mercy,” The Philosophical Review, 81, pp. 182–207CrossRefGoogle Scholar
Nussbaum, Martha, 1995, “Equity and Mercy,” in A. John Simmons et al., eds., Punishment: A Philosophy and Public Affairs Reader, Princeton, NJ: Princeton University Press, pp. 161–167Google Scholar
Holtman, Sarah, 2001, “Justice, Welfare, and the Kantian State,” Proceedings of the Ninth International Kant Congress, Gerhardt, Volker, Horstmann, Rolf-Peter, and Schumacher, Ralph, eds., Berlin: Walter de Gruyter, pp. 152–160Google Scholar
Chira, Susan, 1998, A Mother's Place: Rewriting the Rules of Motherhood, New York: HarperCollinsGoogle Scholar
Coleman, Jules, 1988, “Efficiency, Utility, and Wealth-Maximization,” in Markets, Morals, and the Law, New York: Cambridge University Press, pp. 93–132Google Scholar
Sen, Amartya, 1977, “Rational Fools,” Philosophy and Public Affairs, 6, pp. 317–344Google Scholar
Coleman, Jules, 1988, “Crimes, Kickers, and Transaction Structures,” in Markets, Morals, and the Law, pp. 153–165, especially pp. 161–165Google Scholar
Posner, Richard, 1979, “Utilitarianism, Economics, and Legal Theory,” Journal of Legal Studies, 8, pp. 103–140CrossRefGoogle Scholar

Send book to Kindle

To send this book to your Kindle, first ensure no-reply@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 sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent 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
×

Send book to Dropbox

To send 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 sending content to Dropbox.

Available formats
×

Send book to Google Drive

To send 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 sending content to Google Drive.

Available formats
×