Law and economics and the infinite regress in explaining rationality

Journal of Economic Methodology 1 (2):269-278 (1994)
Abstract
In the Law and Economics literature optimizing techniques are used when a choice must be made between various legal constructions. Often, an aggregate or collective welfare measure is formulated and the legal rule is selected which generates through efficient individual behavior the aggregate welfare maximum. A problem emerges if an efficient and therefore rational decision is assumed both on the individual level and the aggregate level. The legal rules which play a part in forming the decision problem for the individual efficient decision maker are treated in their turn as an efficient choice seen from the aggregate perspective. In what way then is the aggregate decision problem formulated? Again using the efficiency criterion? If we want to escape an infinite regress then we must include determining factors which cannot be proven efficient.
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