Utilitarianism, Economics, and Legal Theory
Richard A. Posner
The Journal of Legal Studies, Vol. 8, No. 1. (Jan., 1979), pp. 103-140.
[size=+0]AMONG [size=+0]the severest critics of the use of economic theory to explain and[size=+0]
sometimes to justify the principles of torts, contracts, restitution, and other fields of Anglo-American judge-made law1 are those who attack the eco- nomic underpinnings of the theory as a version of utilitarianism.* Their proce- dure is first to equate economics with utilitarianism and then to attack utilitarianism. Whether they follow this procedure because they are more comfortable with the terminology of philosophy than with that of the social sciences or because they want to exploit the current tide of philosophical hostility to utilitarianism3 is of no moment. The important question is whether utilitarianism and economics are really the same thing. [size=+0]I [size=+0]believe[size=+0]they are not and, further, that the economic norm [size=+0]I [size=+0]shall call "wealth[size=+0] maximization" provides a firmer basis for a normative theory of law than does utilitarianism. This paper develops these propositions. Part [size=+0]I [size=+0]addresses several preliminary issues, including the distinction be- tween positive and normative analysis (and, within the latter category, be-[size=+0][size=+0][size=+0]tween types of normative claim) and the criteria for choosing one ethicaltheory over another. Part [size=+0]11,[size=+0]the heart of the paper, examines the differences[size=+0] between utilitarianism and wealth maximization as normative systems. The Kantian alternative is also examined, but very b r i e f l ~ . ~ [size=+0]I [size=+0]stress the difference[size=+0] between capacity for pleasure and production for others as the key to distin- guishing utilitarianism and wealth maximization as ethical systems. An ap- pendix takes up some recurrent normative issues in law from the perspective of an economic analysis carefully distinguished from utilitarianism.
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