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Richard A. Posner is probably the leading scholar in the rapidly growing field of the economics of law; he is also an extremely lucid writer. In this book, he applies economic theory to four areas of interest to students of social and legal institutions: the theory of justice, primitive and ancient social and legal institutions, the law and economics of privacy and reputation, and the law and economics of racial discrimination.The book is designed to display the power of economics to organize and illuminate diverse fields in the study of nonmarket behavior and institutions. A central theme is the importance of uncertainty to an understanding of social and legal institutions. Another major theme is that the logic of the law, in many ways but not all, appears to be an economic one: that judges, for example, in interpreting the common law, act as if they were trying to maximize economic welfare.Part I examines the deficiencies of utilitarianism as both a positive and a normative basis of understanding law, ethics, and social institutions, and suggests in its place the economist's concept of "wealth maximization." Part II, an examination of the social and legal institutions of archaic societies, notably that of ancient Greece and primitive societies, argues that economic analysis holds the key to understanding such diverse features of these societies as reciprocal gift-giving, blood guilt, marriage customs, liability rules, and the prestige accorded to generosity. Many topics relevant to modern social and philosophical debate, including the origin of the state and the retributive theory of punishment, are addressed. Parts III and IV deal with more contemporary social and jurisprudential questions. Part III is an economic analysis of privacy and the statutory and common law rules that protect privacy and related interests-rules that include the tort law of privacy, assault and battery, and defamation. Finally, Part IV examines, again from an economic standpoint, the controversial areas of racial and sexual discrimination, with special reference to affirmative action. Both Part III and Part IV develop as a subtheme the issue of proper standards of constitutional adjudication by the Supreme Court.

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Book Details

ISBN: 9780674235267
ISBN-10: 0674235266
Format: Paperback
(235mm x 152mm x 31mm)
Pages: 432
Imprint: Harvard University Press
Publisher: Harvard University Press
Publish Date: 1-Jul-1983
Country of Publication: United States

Other Editions


US Kirkus Review » There's been a vogue lately, exemplified by John Rawls' influential A Theory of Justice (1971), for using economic concepts in theories of law and public policy. Here, Posner (Univ. of Chicago Law School) specifically attacks Rawls' school of thought, labeling it utilitarianism. This school argues that the essential measuring stick, in determining law and policy, should be that if someone advances, no one else is adversely affected. Posner objects on grounds of consistency and comprehensiveness, pointing out the difficulty of measuring the advances and setbacks. Instead he proposes a more classical economic model, based on wealth maximization. If we always and everywhere, he contends, seek to maximize wealth in the aggregate, we will have a sure yardstick, since such a theory depends upon consent; that is, the parties to an agreement or exchange enter into it because they both expect to gain. To make his theory stick, Posner goes back in time and tries to show that market behavior and wealth maximization as a theory of justice underlie primitive social relations and pre-date the emergence of the state. His test case here is the world of Homer - where, in The Iliad and The Odyssey, he professes to discern a society that functioned on the basis of exchange and reciprocity. To do this, however, he has to misconstrue the nature of gift-exchange in the Homeric world; that is, to see the gift relation as a market transaction, whereas the actual exchange was secondary to the social cohesion it propagated - and supply and demand played no role in determining the value of the objects exchanged. Posner's wish is to show that people got along without the state (and only needed it for defense when it did arise); he can thus view the legal system as a codification of customary practices that are essentially market practices. The whole theory, however, is built on a specious interpretation of custom as unchanging - in Posner's case, a specious, market-oriented interpretation. He goes on further to argue that privacy law can best be approached in terms of the cost that people are willing or unwilling to bear in order to obtain information; and this leads him into a detailed study of privacy laws to see what difference they make. (They make more sense in protecting people from government than in the private realm, he concludes.) The investigation ends with a discussion of discrimination, where Posner discovers - not surprisingly - that there is no economic sense to affirmative-action laws. Posner stands out for trying to ground the new cost/benefit approach to law in custom, and his blinkered failure to do so has its importance too. (Kirkus Reviews)

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Author Biography - Richard A. Posner

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

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