【作者】波斯纳
【内容提要】
Among the severest critics of the use of economic theory to explain and sometimes to justify the principles of torts, contracts, restitution, and other fields of Anglo-American judge-made law' are those who attack the economic underpinnings of the theory as a version of utilitarianism.2 Their procedure is first to equate economics with utilitarianism and then to attack utilitarianism. Whether they follow this procedure because they are more comfortable with the terminology of philosophy than with that of the social sciences or because they want to exploit the current tide of philosophical hostility to utilitarianism3 is of no moment. The important question is whether utilitarianism and economics are really the same thing. I believe they are not and, further, that the economic norm I shall call "wealth maximization" provides a firmer basis for a normative theory of law than does utilitarianism. This paper develops these propositions. Part I addresses several reliminary issues, including the distinction between positive and normative analysis (and, within the latter category, between types of normative claim) and the criteria for choosing one ethical theory over another. Part II, the heart of the paper, examines the differences between utilitarianism and wealth maximization as normative systems. The Kantian alternative is also examined, but very briefly.4 I stress the difference between capacity for pleasure and production for others as the key to distinguishing utilitarianism and wealth maximization as ethical systems. An appendix takes up some recurrent normative issues in law from the perspective of an economic analysis carefully distinguished from utilitarianism.