Transparency and determinacy in common law adjudication: A philosophical defense of explanatory economic analysis
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of why judges would use deontic moral terms to explain cases they decide using consequentialist economic reasoning, arguing instead that only a deontic moral account of judicial reasoning can be squared with the judicial use of deontic moral language. Second, the common law has a bilateral structure, in which a plaintiff's right to recover and a defendant's duty to compensate are treated as correlative. Philosophers have observed that this structure seems custom tailored to retrospective moral rights adjudication and ill suited to prospective efficient regulation. Recently, two philosophers, Jules L. Coleman and Stephen A. Smith, have developed these ideas into a full-scale assault on the explanatory credentials of the economic analysis. I defend the economic analysis by arguing that the bilateral structure of the common law either constitutes a "second best" approach to providing incentives for efficient behavior, as economic analysts have maintained, or that it is the vestigial remnant of the common law's originally deontic conception. I also claim that the economic analysis satisfies the transparency criterion by arguing that terms with a deontic plain meaning have acquired a consequentialist contextual meaning within the common law. Although this "contextualist convergence" thesis is counterintuitive, I build on Coleman's semantic theory to explain how it is possible. To demonstrate that it is plausible as well, I argue that evolutionary forces would have naturally led to this result over the course of the common law's development. In particular, I claim that the substantial indeterminacy of deontic moral theory, and the superior determinacy of the economic analysis, explains why judges would be intuitively attracted to reasoning that is best reconstructed in economic terms, notwithstanding the superior normative force of deontic moral theory. Thus, the core of my defense of explanatory economic analysis is that its critics overlook the central theoretical and practical role determinacy plays in explanation and justification generally, and in the explanation of judicial reasoning in particular, where determinacy is prized, if not above all else, no less than any other virtue.
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Donald C. Hubin (1993). Book Review:Thoughtful Economic Man: Essays on Rationality, Moral Rules and Benevolence. Gay Meeks. [REVIEW] Ethics 103 (3):572-.
J. Moreh (1992). Economic Analysis, Common-Sense Morality and Utilitarianism. Erkenntnis 37 (1):115 - 143.
Andrew J. I. Jones & Marek Sergot (1992). Deontic Logic in the Representation of Law: Towards a Methodology. [REVIEW] Artificial Intelligence and Law 1 (1):45-64.
Anthony R. Reeves (2010). Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and Judicial-Reasoning. Law and Philosophy 29 (2):159-187.
Anthony Reeves (2011). Judicial Practical Reason: Judges in Morally Imperfect Legal Orders. Law and Philosophy 30 (3):319-352.
Brian Bix (1993). Law, Language, and Legal Determinacy. Oxford University Press.
Kim Lane Scheppele (1988). Legal Secrets: Equality and Efficiency in the Common Law. University of Chicago Press.
Added to index2009-01-28
Total downloads6 ( #478,754 of 1,911,320 )
Recent downloads (6 months)1 ( #457,073 of 1,911,320 )
How can I increase my downloads?