Essays on psychology and morality in economic analysis of law

Thus, at least in nonpathological cases, it is plausible to suppose that many people regard legal rules as directly action guiding. On this account, obligations are exclusionary reasons that provide the agent both with a first-order reason to take the obligatory act and a second-order reason not to consider some set of first-order reasons actions. Section III. Or she might have a preference for norm compliance; that is, all other things equal, she prefers actions that conform to the norm to actions that violate it. Berlin: De Gruyter. The behavioral claim IV as well as the causal claim V and the explanatory claim I , by contrast, concern empirical issues that philosophers of law generally neglect. It rejects, however, either efficiency as the aim of the designer or the assumption of rationality underlying any behavioral claim that may be implicated in a rationalization of doctrine.

One might have a sociological concept of law that does not rely on the doctrinal concept of law as their grounds are very different.

Claim I differs from claim IV. They seek to rationalize the decisions of some set of courts. They apparently regard dispositions as mere applications of law to fact.

It is less clear how one explains a mass of reasons and rules from different jurisdictions. As it is an account of instrumental rationality, it can accommodate many different substantive accounts that differ in their specification of what ends are rational or more simply whatever ends the agent happens to have. Google Scholar Engel, D. Or should we understand the claim as asserting that law makers, whether judges, legislators, or administrators, should choose efficient rules? Typically, the analyst attributes self-interested preferences to each agent. In standard models of consumer behavior, for example, the agent has fundamental preferences over consumption bundles. These projects suggest a social scientific concept of law rather than a doctrinal or taxonomic one. Google Scholar Kronman, A. First, each strand makes different motivational assumptions about public officials. Doctrinal analysis, according to the critics, fails as an explanation of private law because it is opaque rather than transparent. On the other hand, if we understand doctrinal analysis as a theory of adjudication, then it clearly adopts a rule instrumental view of law. That is, suppose that she operates under cognitive and motivational constraints that make her decisionmaking error prone and costly. For constitutional political economy, a normative theory of adjudication must be a structural one; it should describe the structure of adjudication.

How much of the activity she ought to engage in depends on, among other things, the number of other polluters in the area, the ways in which that pollution builds up to affect the surrounding community, and any offsetting benefits of the polluting activity both to the industry and to the community at large, as well as principles that determine the normative significance of such facts.

Its abstract nature renders the theory remarkably flexible. On which of these concepts does economic analysis of law rely?

Max Weber. Hart considered two extremes: a simple society with no differentiation of governance from other institutions and modern, municipal legal systems that have distinct institutions for adaptation, policing, adjudication, and sanctioning.

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Similarly, we might create a taxonomy by considering how the grounds of law differ from the grounds of morality or religion. Google Scholar Cotterrell, R. Once, however, we recognize that there are both externalizers and internalizers in the subject population, a superior explanation of the doctrine emerges. Literature 75, 75 pointing out that economists have long assumed that preferences are exogenous. On their own, they simply direct people to weigh the benefits and costs of compliance in order to figure out whether following the law on any particular occasion makes sense from the perspective of justice or the good. Google Scholar Parsons, T. For an overview of the evidence on strong reciprocity, see Gintis et al. A tax on sulfur dioxide emissions above 75 parts per billion per hour, by contrast, provides the firm with only a first-order reason for action. This centrality extends beyond the articulation of theories of adjudication. What makes a proposition of law true, for Hart, is its pedigree which must trace back ultimately to the rule of recognition in the community. In this sense, I depart from the common, though not universal, assumption made by economists that preferences provide a measure of individual welfare. Fischoff et al. Different burdens of proof generate different distributions of error types.

Second, and related, they all reject the view of doctrine as instrumental. Doctrinal analysis does not analyze the behavior of public officials; it rationalizes the decisions of judges without necessarily imputing motivations to them.

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Leamington Spa: Berg. Central philosophic questions concerning the concept of law, of its normativity, and the obligation to obey the law, however, are not directly addressed.

Essays on psychology and morality in economic analysis of law

A comparative study of tort law, for instance, must be able to identify which norms in country X are legal norms governing accidents between strangers in order to compare them to the legal norms governing accident between strangers in country Y. The chain cannot go on indefinitely. Close Section III. And so no modification of the standard economic model is required. But whether internalizers have such a preference depends on the rule. Translated by C Gordon, L. Finally, we might understand the distinction among the three strands as a difference in the view each adopts about the instrumentalism of law. These theories focus on the rules not the dispositions. Economic models of internally motivated actors typically suppose that internalizers simply balance a desire to conform to the norms that they have internalized against the other reasons that motivate them.

There are of course other possibilities.

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Juurikkala, Oskari: Essays on psychology and morality in economic analysis of law