[DOWNLOAD] "Law, Economics, and Philosophy" by Mark Kuperberg # Book PDF Kindle ePub Free
eBook details
- Title: Law, Economics, and Philosophy
- Author : Mark Kuperberg
- Release Date : January 25, 1990
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 6640 KB
Description
The economic approach to law is much more than a methodology for analyzing the consequences of judicial decisions. In addition to its methodological elements, the economic approach includes both positive and normative theses. The positive thesis is that the development of Anglo-American law can be understood as a continuing accommodation to changing social and economic circumstances by judges who interpret legal rules so as to produce economically efficient outcomes. The normative thesis is that this is as it should be.
The positive and normative theses of the economic approach are not necessarily linked. Even if we grant, for the sake of argument, that the development of Anglo-American law is, in fact, a process of promoting efficiency, we need not also agree that judges ought to decide cases on this basis. On the other hand, we may think that the development of the law has been a haphazard process involving many different (and even conflicting) doctrinal and political currents, and yet think that judicial decisions should be justified partly or entirely in terms of their effects on efficiency. The positive and normative theses of the economic approach, despite their outward similarity, are claims of very different kinds: the positive thesis is a thesis about judicial history, while the normative thesis is a thesis in political and legal philosophy. Neither thesis implies the other; each must stand or fall on its own merits.
The positive thesis raises interesting questions that are at the center of an active controversy among legal historians. We shall not, however, pursue these questions in this book; instead, we will focus on the normative thesis, which is more directly related to the future evolution of the law and therefore more important for practicing lawyers and judges. It is worth pausing for a moment to see why.
In our legal system (as in any mature legal system), most of the cases that reach the courts are straightforward from a legal point of view. Well-established legal rules, based either on statute or precedent, point unambiguously to a decision for one or the other party in the case. There may, of course, be complex and controverted issues of fact for the court to resolve, but once the facts are determined, there is no difficulty in deciding how the law applies to them. Not all cases, however, are “easy cases” in this sense, for it may not be obvious, even to the informed and experienced judicial mind, which of several legal rules apply to the case, how conflicting rules should be compromised, or how a particular rule should be interpreted. Such “hard cases” raise the most perplexing question that any judge can be called upon to decide: what is the law?