Tuesday, December 28, 2004
Mark's Reply about Law and Economics
I appreciate Marks' detailed response to my thoughts about "law and economics," and I am happy to say that I agree (I think!) with every thing he says. Mark says, for example: "The difficulty . . . is the radical extension of economic concepts such as utility maximization, rational choice and social welfare as prescriptive, normative devices into the traditional province of political philosophy and jurisprudence." I would add, by way of friendly amendment, only that the word "radical" is important here. That is, it seems to me quite appropriate for "economic concepts such as utility maximization, rational choice, and social welfare" to enter conversations in the "traditional province of political philosophy and jurisprudence"; these concepts should not supplant those conversations, though.
Perhaps Mark disagrees, but it does strike me that concepts like efficiency and cost-effectiveness do have important moral content, in this sense: In a world (like ours) of scarcity, and given our obligations to good stewardship and solidarity, it is not only unwise, but also wrong, to badly misuse or waste resources. (This is true not only when we are talking about environmental policies, but also about legal rules and doctrines). If the tools of "law and economics" -- and that is all they are -- can help us avoid this wrong, then it seems to me that we should welcome and employ them.
Again, Mark and I are on the same page, when he states, that the "determined refusal to meditate upon ends . . . distinguishes th[e] prescriptive, normative aspect of the law and economics enterprise from the tradition of which Catholic legal theory is a part." My suggestion is only that our Catholic enterprise -- which does "meditate on ends" -- nonetheless not only may, but should, employ law-and-economics in the way and for the reasons discussed above. One implication of this claim, I think, is that a Catholic law school should not avoid or belittle "law and economics", but should instead try hard to produce lawyers and scholars who know "law and economics" -- and its limits.