From Avoidance to Inversion of Morality in Economic Analysis of Law

Bc. Robertas Bakula

Master's thesis

Abstract:

Law and Economics is a school of thought that has enjoyed a wide influence in the legal and economic scholarship through the last half a century. However, in transitioning from the positive analysis to normative prescriptions for legal decision-makers, the theoretical framework of the economic analysis of law has raised many concerns about the impact it may have on institutions of property rights and the shifting role of the government from being the protector of those rights to being the sole authority over them. In an attempt to bypass the difficult moral underpinnings of law by postulating a supposedly superior, value neutral purpose to the legal system – economic efficiency, or wealth maximization – Law and Economics framework has inverted the common understanding of concepts like “rights,” “harm,” and “causation.” This work is an attempt to contribute to raising the awareness of the moral premises and the invitation of the statist ethic implicit in the economic analysis of law, thereby cautioning against the normative conclusions flowing from this theoretical framework.

Abstract:

Law and Economics is a school of thought that has enjoyed a wide influence in the legal and economic scholarship through the last half a century. However, in transitioning from the positive analysis to normative prescriptions for legal decision-makers, the theoretical framework of the economic analysis of law has raised many concerns about the impact it may have on institutions of property rights and the shifting role of the government from being the protector of those rights to being the sole authority over them. In an attempt to bypass the difficult moral underpinnings of law by postulating a supposedly superior, value neutral purpose to the legal system – economic efficiency, or wealth maximization – Law and Economics framework has inverted the common understanding of concepts like “rights,” “harm,” and “causation.” This work is an attempt to contribute to raising the awareness of the moral premises and the invitation of the statist ethic implicit in the economic analysis of law, thereby cautioning against the normative conclusions flowing from this theoretical framework.

Keywords

Law and Economics, Economic Analysis of Law, value neutrality, wealth maximization, efficiency, property rights, harm, externalities

Language used: English

Date on which the thesis was submitted / produced: 3. 6. 2022

Thesis defence

• Date of defence: 7. 6. 2022
• Supervisor: Mgr. Jiří Cieslar
• Reader: Ing. Mgr. Dominik Stroukal, Ph.D.

CEVRO Institute

Master programme / field:
Philosophy, Politics, Economics / Philosophy, Politics, Economics