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Name:
Richard Posner
Dates:
Born:?
Died: n/a
Biography:
Richard Posner is an important figure in conservative legal theory today. Indeed, he
has played a significant rol in reshaping conservative legal theory so that it reflects
a bias towards economics - law exists not so much as a moral agreement between
citizens but rather as a context for business decisions and free-market contractual
relationships.
For Posner, the primary goal of law is efficience, defined as wealth maximization. Laws exist to stop inefficiencies, but even then only on a limited basis because the free market already does such a good job at weeding them out. Laws which engage in any form of social engineering, for example to protect consumers, only do more harm than good because they make the markets and society generally more ineffecient in the transfer of wealth from one person to another.
Posner accepts the importance of legal rights, but he assigns those rights a cost and then subjects them to a cost benefit analysis, a proceedure well known in economics as a means for determining if it is worthwhile for a company to pursue some action or strategy. As a result, Posner argues that society should calculate the cost of defending someone's legal rights before agreeing to do so - or even before agreeing that such rights exist at all. If there is no benefit to the bottom line, then society would be better of abandoning the right.
For example, large amounts of money should not be spent on desegregation because there would not be significant economic benefit from it. If the costs of imposing air pollution restrictions are greater than the economic returns, then the restrictions should be abandoned - and air quality itself is not something that should be taken into account. It is, after all, not itself an economic value. Only economic benefits that arise from improved air quality should be taken into consideration. Even jury trials are deemed by him to be an excessive expense because judges have to sit at both jury and nonjury trials - his cost-benefit analysis leads him to conclude that the right to a jury trial is an unnecessary expense to society.
On the other hand, the constitutionality of antiterrorism laws should be evaluted based not upon whether the Constitution prohibits their provisions but, rather, based upon whether there is a greater monetary cost to society from not having the laws than from having them. If the economic cost of obtaining justice is greater than the economic cost of injustice, then injustice is preferable to justce - at least, that is the ' position of Richard Posner, himself a sitting judge.
Also Known As: none
Alternate Spellings: none
Common Misspellings: none
Related Resources:
What are Political and Legal Philosophy
The Philosophy of Politics and the Philosophy of Law are often studied separately, but they are presented here jointly because they both come back to the same thing: the study of force. Politics is the study of political force in the general community, while jurisprudence is the study of how laws can and should be used to achieve political and social goals.What is Philosophy?
What is philosophy? Is there any point in studying philosophy, or is it a useless subject? What are the different branches of philosophy - what's the difference between aestheitcs and ethics? What's the difference between metaphysics and epistemology?
