Academic

Claeys on Coase & Jefferson

By Lawrence Solum

Eric Claeys (George Mason University School of Law) has posted Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights on SSRN. Here is the abstract:

In tort scholarship, conventional wisdom assumes that economic analysis explains doctrine more determinately than philosophical analysis. This Article challenges that assumption, using land-use torts as a point of contact.

The Article studies cattle trespasses, pollution nuisances, train-sparks cases, and other basic rules of tort liability Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights theory that informed the content of these torts when "tort" was forming into a single field of legal study. The "Jeffersonian" natural-rights theory predicts the contours of doctrine more determinately and accurately than "Coasian" economic analysis. It also anticipates and finesses a significant normative challenge to Coasian economic tort analysis - its tendency to demand that triers of fact process unrealistically volatile and fact-specific information to prescribe legal results.

The comparison teaches that conventional impressions about tort philosophy and economics have been misguided in at least three important respects. First, in a significant swath of doctrine, Jeffersonian natural-rights moral theory shapes the contours of tort quite determinately. Second, if philosophical tort scholarship has a bad reputation for being indeterminate, it does so at least in part because it has chosen to focus on the general corrective-justice architecture of tort - to the exclusion of specific theories of political morality informing particular doctrines. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.

And from the text:

A theory is not necessarily deontological because it is moral; a theory of morality can be consequentialist and remain moral. A theory is ?moral? if it obligates a subject to promote the good of the community in situations in which his individual good, conceived narrowly, points toward a different course of conduct. Some theories of morality define the ?good? of the individual and the community not in deontological terms but in terms of individual and civic happiness. Consider the criticisms that deontological moral philosophy sometimes takes from virtue209 or natural-law ethicists.210 When such ethicists criticize deontological theory, they assume: Political and ethical rules can be justified only by their tendency to increase human happiness; that such happiness cannot be understood without a well-developed account of human psychology that is both explanatory and normative; and that universal deontological claims are not satisfying because they abstract from such psychology. In other words, ethical rules are judged by their tendency to enlarge the happiness of the individual and the community, where ?happiness? is understood as a complete, mature, and excellent state of human satisfaction.

Claeys is surely right about the point in this paragraph.  Much of the criticism of philosophy in both public and private law is actually aimed at a narrow range of normative theories in the deontological tradition.

Highly recommended.

Full post as published by Legal Theory Blog on April 23, 2008 (boomark / email).