Abstract
In the course of its slow development in the eighteenth and early nineteenth centuries the study of economic and social phenomena was guided in the choice of its methods in the main by the nature of the problems it had to face…. Students of political economy could describe it alternatively as a branch of science or of moral or social philosophy without the least qualms whether their subject was scientific or philosophical.
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Notes
F. Hayek, The Counter-Revolution of Science: Studies on the Abuse of Reason 20–21 (1952) [hereinafter Hayek, Abuse of Reason]. (Hayek’s point is not to argue against science but rather to point out the limits of science and to show how the social sciences have in many ways fallen prey to a scientifc abuse of reason).
See Posner, ‘Utilitarianism, Economics, and Legal Theory’, 8 J. Legal Stud. 103, 135–136 (1979).
See A. Smith, Lectures on Jurisprudence 207, 311–330, 401-407, (R. Meek, D. Raphael & L. Stein eds. 1978) [hereinafter Smith, Jurisprudence]. See also Malloy, ‘Invisible Hand or Sleight of Hand? Adam Smith, Richard Posner and the Philosophy of Law and Economies’, 36 Kan. L. Rev. 209, 238-240 (1988) [hereinafter Malloy, ‘Adam Smith’].
See Malloy, ‘The Merits of the Smithian Critique: A Final Word on Smith and Posner’, 36 U. Kan. L. Rev. 267–274 (1988) [hereinafter Malloy, ‘The Merits’].
See, e.g., F. Hayek, The Constitution of Liberty (1960); Hayek, Abuse of Reason, supra note 1; F. Hayek, Law Legislation and Liberty: Rules and Order (1973); F. Hayek, Law, Legislation and Liberty: The Mirage of Social Justice (1976); F. Hayek, Law, Legislation and Liberty: The Political Order of a Free People (1979); F. Hayek, The Road to Serfdom (1944); F. Hayek, The Fatal Conceit: The Errors of Socialism (1989).
See, e.g., M. Friedman, Essays in Positive Economics (1953); M. Friedman, Capitalism and Freedom (1962); M. Friedman, Bright Promises, Dismal Performance (W. Allen, ed. 1983); M. Friedman & R. Friedman, Free to Choose (1980); M. Friedman & R. Friedman, Tyranny of the Status Quo (1984); Friedman, ‘Free Markets and Free Speech’, 10 Harv. J. L. & Pub Pol’y 1 (1987).
See Malloy, ‘The Merits’, supra note 4, at 270–271.
Semiotics, the study of signs, is related to law in that it involves the study of legal discourse. It is a study of the process by which certain forms of legal discourse become accepted as valid and persuasive. As a dynamic process, semiotics investigates the discovery and creation of new forms of legal discourse and of the creation of new forms of legal actions. At the same time, law and semiotics is also concerned with the process by which established forms of legal argument lose their validity and power of persuasion over time. Thus, for example, consider the legal concept of ‘caveat emptor.’ That legal phrase is a’ sign’ — a symbolic representation of an idea and a concept. Law and semiotics is concerned with the nature of such a sign as it is used and understood in legal discourse. Law and economics is also concerned with the dynamic and evolutionary process by which such signs or legal terms go from having a tremendous role in old consumer law cases to a position of relative weakness in a modern day transaction involving similar facts. (Legal ‘facts’” themselves are signs in semiotics and one can study the process by which facts are established and dealt with in legal discourse.). For a path breaking book in the area of law and semiotics see R. Kevelson, The Law as a Sysytem of Signs (1988). See also Malloy, ‘A Sign of the Times-Law and Semiotics: A Review of R. Kevelson’s The Law as a System of Signs’, 64 Tul. L. Rev. 211 (1990).
See Malloy, ‘Equating Human Rights and Property Rights — The Need for Moral Judgment in an Economic Analysis of Law and Social Policy’, 47 Ohio St. L.J. 163–177 (1968) [hereinafter Malloy, ‘Human Rights’] (In this article I raised many of these type questions and argued by example that economics, as a science, is unable to resolve these and many other of our most pressing social problems).
See id. See also Malloy, ‘The Political Economy of Co-Financing America’s Urban Renaissance’, 40 Vand. L. Rev. 67-134 (1987) (This article addressed this issue and applied my theory of law and economics to a particular context — urban development. The article demonstrated the way in which the theory can be used in analyzing specific social and legal issues.); R. Malloy, Planning for Serfdom: Legal Economic Discourse and Downtown Development (1991 University of Pennsylvania Press) (elaborating on similar themes and containing a full discussion of Adam Smith and Classical Liberal Theory).
See Malloy, ‘Adam Smith’, supra note 3, at 242–244. (This part of the article spells out six different major underlying assumptions of neoclassical economics and then details the value judgments at work in each of these assumptions. Furthermore, the article shows how Posner’s theory of wealth maximization is essentially and critically linked to the neoclassical economic model, its assumptions, and values.). See also R. Malloy, Law and Economics: A Comparative Approach to Theory and Practice Chapters 1-3 (1990).
See Malloy, ‘Adam Smith’, supra note 3, at 216–238. (This part of the article gives detailed references to Smith’s work. It details Smith’s analysis of the evolution of society and of legal, economic, and political arrangements within society as they develop relative to a specific historical context. This article also sets out the dualistic nature of the relative and non-relative aspects of individual liberty in the work of Smith and establishes the recognition by Smith of certain welfare obligations that are to be carried out by the government). See also R. Malloy, ‘Of Icons, Metaphors, and Private Property — The Recognition of ‘Welfare’ Claims in the Philosophy of Adam Smith’, III Law and Semiotics (R. Kevelson ed. 1990).
See A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations Vol. II 231–244 (E. Cannon ed. 1976) (first published in 1776 and now in two volumes); A. Smith, The Theory of Moral Sentiments 126-32 (E. West ed. 1976) (first published in 1759); A. Smith, Lectures on Jurisprudence 208 (R. Meek, D. Raphael & L. Stein eds. 1978).
By transferring our inquiry into a factual search for efficiency we make the process of law look scientific. In this manner Posner makes law look more natural, more objective, and more determinate. But as we know, there is much less here than meets the eye. The “facts” themselves are subjective interpretations and they are submitted to an indeterminate mode of economic analysis which is itsels resting upon very certain assumptions and value judgments. While such an approach may provide additional comfort for doctrinal practitioners, seeking to formalistically apply law without thinking about the people involved, it can hardly be viewed as scientific in any form other than rhetorical.
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Malloy, R. (1994). The Limits of Science in Legal Discourse — A Reply to Posner. In: Malloy, R.P., Evensky, J. (eds) Adam Smith and the Philosophy of Law and Economics. Law and Philosophy Library, vol 20. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-0748-8_10
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