تجزیه و تحلیل اقتصادی و عملگرایی حقوقی

This paper attempts to underline a recent evolution in the law-and-economics movement concerning its underlying methodological and epistemological foundations. The question of concern is whether the contemporary economic analysis of law has operated a sort of paradigm switch from the neo-classical, rather mechanical conception of legal decision-making (social wealth maximization) to a new form of pragmatism considering legal decision-making as a branch of practical reasoning, hence as largely subjective, fallible and unpredictable. The descriptive component of the efficiency theory is indeed more and more explicitly associated with a critical component. This shift to critical analysis, as well as the growing emphasis on the importance of experience over formal logic in law making, has recently increased the affinity of a part of law-and-economics with a vision of legal realism as it lives on, in our times, in movements like critical legal studies, which traditionally have stood as a major counter-argument to traditional law-and-economics. Richard Posner’s recent work [in particular, R.A. Posner, The Problems of Jurisprudence, Harvard University Press, Cambridge, MA, 1993; R.A. Posner, Overcoming Law, Harvard University Press, Cambridge, MA, 1995; R.A. Posner, The Problematics of Moral and Legal Theory, Harvard University Press, Cambridge, MA, 1999; R.A. Posner, Law, Pragmatism, and Democracy, Harvard University Press, Cambridge, MA, 2003] displays a particularly strong and original pragmatist component, which at times comes close to the radical conception of postmodern thinkers like Rorty, whose jurisprudence is generally associated with culturally relativistic pragmatism. Is the economic analysis of law actually taking a decisive turn? Does Posner’s new way of defining pragmatism reflect a change of perspective within the movement of which he has been one of the most influential originators three decades ago? Or can we find a continuity in his new understanding of law? These questions subsequently will lead us to explore the implications of pragmatic conceptions of legal decision-making for legal evolution. Is legal evolution inherently indeterminate, contingent and hence, unpredictable, as argued by most postmodern thinkers? Is it then possible to envisage a positive jurisprudence? In other words, what does legal pragmatism imply regarding the theorization of law, and, more particularly, regarding the economic analysis of law?

Traditionally, legal pragmatism has been associated essentially with legal realism. It has been rooted in pragmatist philosophy,1 itself resulting from heterogeneous, mostly interdisciplinary, scientific traditions. After a short period of success, legal realism as well as philosophical pragmatism almost entirely disappeared by the end of the second world war, the first being largely replaced by analytic philosophy, and the second absorbed into mainstream legal thought (Posner, 1993, p. 462). In recent years, legal pragmatism finally experienced an interesting revival with postmodern philosophies, like neo-pragmatism, critical legal studies, and a growing part of recent law-and-economics. 1.1. The pragmatism of early law-and-economics Legal pragmatism has become a widely used term with different and sometimes contradictory meanings. It can be argued that economic analysis of law has always adopted a pragmatic approach, but its pragmatism has undergone important changes over time. Law-and-economics is an intrinsically pragmatic approach, be it only in the sense that its goal-understanding how courts work and what are their effects on individual behavior is in itself a realist maxim. Furthermore, the underlying logical positivism requires a validation of theory through a confirmation by reality. The traditional method of law-and-economics consists indeed of building a coherent and refutable theory of legal rules, processes and institutions, which, in a next step, is supposed to be confronted to the empirical world. In this perspective, only empirical investigations can refute or confirm the hypotheses derived from the theory. Thus, the arguments for wealth maximization, advanced by the first generation of law-andeconomics, have essentially been pragmatic. They are built on the empirical observation that, over centuries, most common law judges have developed an intuitive sense of economics and that legal decisions and doctrines are most adequately described as an explicit, or at least an implicit, application of the principles of social wealth maximization or social cost minimization.2 Law-making, in this approach, is a matter of calculation, management, resource allocation and optimization. Strongly influenced by the spirit of utilitarianism, the early law-and-economics literature has undeniably started out as an instrumental and practical view of law, contrasting with the formalism and conceptualism of a large part of mainstream legal scholarshipThe hostility toward the principles of justice, fairness or equity displays another strong pragmatist feature of the initial law-and-economics movement. The purpose is to develop a scientific and anti-dogmatic approach to law. This is why the first generation of writers, faithful to the logic of neutrality and objectivity characterizing mainstream microeconomics generally, refused to introduce normative and ideological considerations into their inquiries of the legal decision-making process. The initial literature, of which Posner can be considered as one of the emblematic figures, is thus in the beginning limited essentially to descriptive analysis. It is interested in the way the law is and how it evolves, rather than how it ought to be. According to this perspective, ethics is considered as a subjective, rhetorical and arbitrary matter and there is no scope for it in economics. Law-and-economics pushed the quest for objectivation even further than traditional economists, by denying any link not only between economics and ethics, but also between law and ethics. The reasons of this skepticism are themselves fundamentally pragmatic. First, taking into account complex moral or ethical aspects would risk to unnecessarily encumber the theoretical investigation into the legal process. Abstraction and reductionism are considered as essential features for a theory to work.3 Second and related argument, any concept that cannot be quantified, formalized or objectively defined is considered as a suspect, futile and unusable value. Justice is such a concept. Considered as an emotive, intuitive and irrational principle, justice is, in much of the economic literature, discarded for being a useless device for legal practice, as well as for the scientific inquiry into the law. In contemporary law-and-economics, scholars increasingly admit the pragmatic value of ideas of justice in human action, but they generally continue to assert that considerations of justice or fairness are worthless in policy making.4 At the same time, as previously mentioned, the usually advanced justification of the wealth maximization principle is that it is an operational criterion, and therefore particularly useful for understanding the functioning and evaluating the soundness of legal decision-making (Posner, 1980). That this criterion is derived from economics and not at all from the law is not a preoccupation in this pragmatic and descriptive perspective, and hence does not call for any deeper argumentation. What is of interest is simply to see whether and how legal decision-makers use this criterion. It is precisely on this point that the pragmatism of the early economic analysis of law poses a problem. Indeed, the lack of empirical verification (mainly due to informational problems and lack of relevant data) made it difficult to support the initial theory according to which in real life, legal decision-making is systematically based on the narrowly defined efficiency criterion (Rizzo, 1979). Furthermore, in many cases, legal practice happened to refute this assumption (Rizzo, 1979, 1980). Over the past years, the literature has evolved considerably under the influence of extensive work, among others, by Posner,5 and many of the empirical inadequacies of the economic analysis as a positive theory of law could be overcome. The difficulties to empirically verify the descriptive thesis may explain, however,why part of the literature has progressively shifted from an explanatory to a prescriptive theory. If it is not possible to prove by observation that the common law is efficient, the often preferred alternative is to state that it ought to be efficient.Wealth maximization then becomes a normative principle for guiding legal policy. 1.2. From pragmatism to a form of legal formalism Like descriptive theory, the normative conception—brought forward, among others, again by Posner6—started out as a rather pragmatic approach to law. The purpose is to provide an instrument that is supposed to improve the legal system, and what counts is whether the instrument works, not where it is grounded. The problem with this approach is, however, that the instrument rather soon turned out to be much less workable than it seemed at first sight. Severe technical and philosophical deficiencies of the Kaldor-Hicks wealth maximization criterion indeed made it appear as a largely unworkable response to legal problems (Kronman, 1980). The literature came to admit practical as well as theoretical deficiencies of the efficiency assumption of the common law. Among the widely underlined shortcomings, in particular informational problems largely seem to undermine the methodological foundations of the efficiency theory of law.7 The normative economic analysis of law may still be labeled pragmatist in the sense that it endeavors to refashion the law into an efficient instrument, but it is a pragmatism that reveals itself as largely impracticable. While part of the literature came to absorb many objections and to recognize that the attempts to make wealth maximization an instrument for creating good law have not necessarily been altogether successful, another part operated an important, yet largely unnoticed shift from a logic of means to a logic of ends, by progressively transforming efficiency into a supreme value that ought to be defended for its own sake.8 Wealth maximization then ceases to be instrumental and becomes foundational. In the modest version of the theory, it becomes a moralism in competition with justice or ethics (Calabresi, 1980), and in the radical version, justice is simply considered as a label for wealth maximization (Posner, 1977). The standard of efficiency (social wealth maximization) no longer is viewed as a means in the service of law, but law is seen as a means in the service of the ultimate social goal, efficiency. This evolution is an important shift away from the pragmatist spirit that has prevailed in the initial economic theory of law. It is a shift away from the question of whether the advanced criterion is workable or not (which is a pragmatic concern), and a step toward the systematic defense of social efficiency as a meta-value. While in initial economic analysis of law, every form of moralism had been categorically rejected as a foundation of law, wealth maximization has now become itself such a moralism. At this stage, the theory has been constrained to explain why an extralegal, and more precisely an economic criterion, could be supposed to be more valuable than criteria directly derived from the law, such as justice or fairness. This is definitely not an easy task and attempts to justify the imposition of an economic value upon the law remain exceptions.9This evolution is at the same time an important shift away from the anti-formalism characterizing the beginning of law-and-economics and a step toward a new kind of legal formalism. As regretted by Posner (1995, p. 2), the economic analysis of law has ended up replacing legal conceptualism (against which it initially has been a revolt) with what he calls a form of economic conceptualism. Legal outcomes are evaluated by their conformity not with some overarching legal concepts (as it is the case in legal formalism), but with not less highly valued principles of economics. It has become an approach that keeps away from the world of facts just as much as does legal formalism, which may explain why law-and-economics is sometimes titled the “new Langdellism.”10 What could be the antidote to this new, disguised form of conceptualism?

The starting point of the present reflection has been the following question. Can we speak of a revolution in law-and-economics (in the sense of a radical change of the basic foundations), or does Posner’s recent evolution toward a new form of pragmatism merelyreflect a slight shift, a simple derivation of the original economic analysis of law, keeping the basic foundations of the theory unaltered? I have argued that while Posner’s recent emphasis on pragmatism can be interpreted in part as a continuity with the initial economic approach to law(and in this sense as an effort to renewthe enterprise of law-and-economics, by amending its underlying methodological foundations), there are also symptoms announcing a genuine rupture with the initial theory, entailing an alteration (or, to use postmodern terminology, a deconstruction) of its basic foundations. This presumption has led me to consider the question whether an economic approach to law is still possible, once the deconstruction of law is envisaged. The mere possibility of a positive jurisprudence indeed seems to be seriously compromised in postmodern thinking. Therefore, Posner’s sympathy for approaches that initially stood as antitheses to law-and-economics, such as legal realism, critical legal studies or neo-pragmatism, will have important implications for what still is (or what can be) the scope and the specificity of law-and-economics. My opinion is that the pragmatist shift operated by Posner is a much more appropriate and realisticway of understanding the evolution of lawthanwas the mechanical social efficiency model elaborated by the economic analysis of law. It can be understood as an important effort to bring to the fore the empirical deficiencies of mainstream law-and-economics. In my view, the actual pragmatist trend initiated by Posner is not necessarily rejecting the use of economic tools to study legal phenomena. It simply shows that the faith in what economics can do is no longer the same.