Legal Systems, Rights and the Legal-Political Game

Abstract

This chapter forms the closing part of the exposition and defence of the development of my reductionist approach to the analysis of rights and legal systems. I shall begin by setting out the outlines of the game-theoretic approach to the analysis of rights and the explanation of legal systems. The game-theoretic analysis of rights is a developing area of research. Although it is still a relatively new approach, it has already become difficult to speak of the game-theoretic analysis of rights — several different approaches can be distinguished. The main thrust of this chapter is that the institutional approach to legal positivism is perfectly compatible with the reductionism of the game-theoretic approaches. I shall first discuss the various game-theoretic models that have been proposed to analyse rights. I then return to a discussion of the notion of legal validity. Although it is one of the central concepts of legal theory, it plays virtually no role in the game-theoretic analysis of rights. A study of the formal aspect of legal validity reveals that we have to examine the whole legal system of which a legal norm forms part. Game-theoretically, this means that we have to study complex structures of mutually related game forms, and not just one particular game form. The constitutional aspect of the notion of legal validity pertains to the existence of the legal system itself. It will be argued that this aspect cannot be analysed without reference to the preferences of the individuals. The existence of a legal system depends on the acceptance of the system by the members of society and this acceptance is in turn determined by the preferences individuals have.