UCL Jurisprudence Review
1999
Freeing Posner from his capitalist chains
Adam Ohringer
Subject: Jurisprudence. Other related subjects: Economics
Keywords: Economics and law; Jurisprudence; Morals and law; Wealth distribution *UCL Juris. Rev. 241 ‘Economic analysis’ is an unfortunate term for a theory that explains how humans should, and on the whole do, make rational choices in a world of limited resources. Economics is concerned with material wealth, transactions of property, and is regarded as amoral. To many, economics and the economic approach to law are just the mechanics of a utilitarian state, concerned with maximising wealth whilst disregarding such moral issues as distributive justice and moral entitlements to property. Posner himself, …show more content…
Rev. 242 are accepted as definitive on the subject, as he expresses the concept in its purist theoretical form.
The economic approach to law is concerned with maximising efficiency, that is, ensuring that resources are in the hands of the individuals who appreciate them the most. When efficiency is maximised, so is wealth. The economic approach does not, of course, produce more goods, but rather distributes them to ensure that they are possessed by those who would attach the greatest value to them. In that sense the theory is concerned with maximising wealth in a subjective sense; a move towards an economically efficient distribution will make people feel wealthier as they will receive the goods which they personally value the most. However, the objective (or market) value of their assets will remain …show more content…
This leads people into difficulties and hypocrisies; we all accept that causing bodily injury is harmful, but then so is deliberately putting an entrepreneur out of business through competitive practice, or dismissing an employee when he is redundant. Moreover, if one were never to harm another, one would be on a quick route to self-annihilation, for the very process of eating necessarily deprives others of food, and so harms. Harm, by itself, therefore, cannot be the litmus test for ethical conduct, and only certain harms should be discouraged. Attempts by supporters of the harm principle to distinguish between acceptable and unacceptable harms have resulted in them assuming an inconsistent moralising attitude. Hart, as part of his legendary debate with Lord Devlin,4 conceded that certain conduct, such as homosexual practice in private, should be permitted as a matter of right, even if it caused harm: “No social order which accords liberty any value could also accord the right to be protected from distress”.5 Mill, the original voice behind the harm principle,6 defined harm as *UCL Juris. Rev. 243 an interference with another 's interest which is considered his moral right. Clearly, both Mill and Hart state that laws should only be prescribed to avoid harms, but which harms the law should prevent is a matter of
1999
Freeing Posner from his capitalist chains
Adam Ohringer
Subject: Jurisprudence. Other related subjects: Economics
Keywords: Economics and law; Jurisprudence; Morals and law; Wealth distribution *UCL Juris. Rev. 241 ‘Economic analysis’ is an unfortunate term for a theory that explains how humans should, and on the whole do, make rational choices in a world of limited resources. Economics is concerned with material wealth, transactions of property, and is regarded as amoral. To many, economics and the economic approach to law are just the mechanics of a utilitarian state, concerned with maximising wealth whilst disregarding such moral issues as distributive justice and moral entitlements to property. Posner himself, …show more content…
Rev. 242 are accepted as definitive on the subject, as he expresses the concept in its purist theoretical form.
The economic approach to law is concerned with maximising efficiency, that is, ensuring that resources are in the hands of the individuals who appreciate them the most. When efficiency is maximised, so is wealth. The economic approach does not, of course, produce more goods, but rather distributes them to ensure that they are possessed by those who would attach the greatest value to them. In that sense the theory is concerned with maximising wealth in a subjective sense; a move towards an economically efficient distribution will make people feel wealthier as they will receive the goods which they personally value the most. However, the objective (or market) value of their assets will remain …show more content…
This leads people into difficulties and hypocrisies; we all accept that causing bodily injury is harmful, but then so is deliberately putting an entrepreneur out of business through competitive practice, or dismissing an employee when he is redundant. Moreover, if one were never to harm another, one would be on a quick route to self-annihilation, for the very process of eating necessarily deprives others of food, and so harms. Harm, by itself, therefore, cannot be the litmus test for ethical conduct, and only certain harms should be discouraged. Attempts by supporters of the harm principle to distinguish between acceptable and unacceptable harms have resulted in them assuming an inconsistent moralising attitude. Hart, as part of his legendary debate with Lord Devlin,4 conceded that certain conduct, such as homosexual practice in private, should be permitted as a matter of right, even if it caused harm: “No social order which accords liberty any value could also accord the right to be protected from distress”.5 Mill, the original voice behind the harm principle,6 defined harm as *UCL Juris. Rev. 243 an interference with another 's interest which is considered his moral right. Clearly, both Mill and Hart state that laws should only be prescribed to avoid harms, but which harms the law should prevent is a matter of