EQUALITY, ENTITLEMENT, AND EFFICIENCY:
DWORKIN, NOZICK, POSNER, AND
IMPLICATIONS FOR LEGAL THEORY
Stephen O'Hanlon*
Abstract ......................................................
Introduction ..................................................
I. D workin .............................................
A. Law as Integrity ..................................
B. Equality of Resources .............................
II. Nozick and Libertarianism ............................
III. Law & Econom ics ....................................
A. Morality, Practicality, and Welfare .................
i. M orality .....................................
ii. Practicality ...................................
iii. Welfare ......................................
B. Wealth Maximization and Rational "Theory".. ......
i. Wealth Maximization .........................
ii. Rational "Theory" .. .........................
C. Distribution, Capture, and Marx ..................
D . Efficiency Revisited ...............................
C onclusion ...................................................
31
32
37
37
45
52
65
67
67
75
79
83
84
86
91
96
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ABSTRACT
This Article analyzes the legal theories of Ronald Dworkin, Robert
Nozick, and RichardA. Posner. The Article concludes that integrity, equality, libertarianism,and efficiency are all importantvalues that contribute to
the formulation of a compelling legal theory.
* Lecturer in Philosophy, Temple University. B.A., Trinity College Dublin; M. Phil., The
London School of Economics; J.D., Temple University, Beasley School of Law. The author
wishes to express his gratitude to Michael Libonati who oversaw the research and writing of this
Article over the course of an academic year. In addition, the author thanks Richard Bradley at
the London School of Economics for supervising the author's thesis on Robert Nozick and
providing comments on much of the source material for the section on Nozick. The author also
wishes to thank David Hoffman for reading guidance in the field of law and economics. The
author thanks all those involved in the editing and production processes at the Cardozo Public
Law, Policy and EthicsJournal. Chris Baker is also thanked for his encouragement and input. As
always, the author wishes to express the utmost gratitude to Laura Lee Swan-O'Hanlon and
Julien O'Hanlon.
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PartI assesses Dworkin's theories of law as integrity and of equality of
resources. With regard to Dworkin 's legal theory, this Article argues that it
has difficulties as a prescriptive theory to guide the decision-makingprocesses
of judges. The Article reasons, in addition, that the implementation of
Dworkin 'spolitical, egalitariantheory could lead to excessive interference in
people's lives. Accordingly, Dworkin 's assumption that his theory of equality
of resources can always be assumed to be a morally superior theory to
Nozick's libertarianismis questioned.
Part II assesses Nozick's libertarian theory. This Article argues that
Nozick's theory cannot consistently maintain strong libertarian conclusions
given the foundations on which Nozick's minimal state is built. Nozick has
not done enough to counter the potentialcorruptingeffects offlows of money
into the legalforum of his minimal state.
Part III assesses Posner's theory of law and economics. The goals of
efficiency and wealth maximization within the context of a legal system and
society generally are assessed. While efficiency and wealth maximization are
questionedas unitary, overridingconcepts, this Article accepts that such considerations cannot be ignored by moral, political, or legal theorists. The
Article's conclusion suggests a possible basis for a future theory based on
equality that will partially incorporate libertarian and efficiency
considerations.
INTRODUCTION
Ronald Dworkin's legal theory, simply put, stems from a belief
that his idealized Judge Hercules will decide cases - common law, statute-based, and constitutional - in an interpretive way that both respects
precedent by best incorporating prior judicial history and provides the
best justification for that history in accordance with political morality.
In doing so, legal decision making has what Dworkin calls integrity, and
thereby legitimizes the coercive legal authority of the state. Dworkin
prescribes legal decision making in this form for real-world judges.'
While developing his theory of law as integrity, Dworkin rejects Richard
A. Posner's wealth-maximizing "economic theory of law."2 Dworkin argues that there are two possible egalitarian conceptions compatible with
private ambition and public responsibility that can legitimately under1 See generally RONALD DWORIN, LAw's EMPIRE (1986) [hereinafter
EMPIRE].
2
Id. at ch. 8.
DWORKiN, LAw's
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DWORKIN, NOZICK, & POSNER
pin his legal theory. 3 These two conceptions, which he notes differ in
fundamental ways, are his theory of equality of resources and
libertarianism. 4
Robert Nozick's libertarian position holds that a state evolves from
an anarchical state of nature without violating individuals' rights. This
state is a minimal state limited to protecting individuals' entitlements to
their holdings which they may acquire through just acquisition and just
transfer. Nozick contends that a more extensive state violates individuals' entitlement rights and their negative right to non-interference, including state non-interference. The minimal state is limited to
protective functions and the oversight of Nozick's principle of rectification which remedies unjustly held holdings. However, the minimal
state will not tax and redistribute to provide for either general welfare or
egalitarian positive rights. Nozick asserts that such taxation violates
moral side constraints, which strictly limit means by which individuals
can be coerced into giving up holdings to which they are entitled. Taxation, beyond the limited taxation needed to fund the protective apparatus of the minimal state, violates individual entitlement rights and
amounts to constant interference in individuals' preeminent aims of
planning their individual, meaningful lives.
Dworkin does not refute Nozick's libertarian theory, which is the
only libertarian theory that he considers, as a basis for law as integrity.
Instead he states: "I shall not argue but only assume that equality of
resources is superior to the libertarian conception: it fits our legal and
moral practices no worse and is better in abstract moral theory."6 These
assumptions may be true on certain occasions. Dworkin's resource-egal3 Id.
4 Id. at 445 n.14 (citing only to Robert Nozick's conception of libertarianism).
5 See Robert Nozick, DistributiveJustice, 3 PHIL. & PUB. AFF. 45, 65-66 (Fall 1973); Robert Nozick, Coercion, in Philosophy, Science, and Method: Essays in Honor of Ernest Nagel
440, 441-45 (Sidney Morgenbesser, Patrick Suppes & Morton White eds., 1969); ROBERT
NozIcK, ANARCHY, STATE, AND UTOPIA 50 (1974) [hereinafter NOZICK, ASU] (explaining
that "a person's shaping his life in accordance with some plan is his way of giving meaning to his
life" and taxation to fund redistributive schemes hinders these plans because individual funds are
always susceptible to change depending on the tax and spend policies of the state). But see
ROBERT NOZICK, THE EXAMINED LIFE: PHILOSOPHICAL MEDITATIONS 17 (1989)
(accepting
that his libertarian theory "now seems seriously inadequate to me").
6 DWORKIN, LAW'S EMPIRE, supra note 1, at 301 (emphasis added). It seems that there are
three assumptions here - the stated assumption that Dworkin's equality of resources conception
is superior to Nozick's libertarian conception as well as two additional assumptions - that
Dworkin's theory fits our moral and legal practices no worse than Nozick's and that Dworkin's
theory is superior in abstract moral theory.
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itarian political theory states that unequal talents are morally arbitrary
and, as a result, redistribution is justified to compensate for outcomes
that result from unequal talent. However, he argues that people are
responsible for their life choices. People have different ambitions and
take different risks. Therefore, redistribution is not generally warranted,
according to Dworkin, for unequal outcomes that result from different
7
life choices as well as from risk aversion or risk acceptance.
It is, however, possible to imagine alternative situations where
Dworkin's theory may not be superior, may be worse in legal and moral
practice, and may be inferior in abstract and non-abstract moral theory.
This is a fascinating point at which Dworkin leaves his theory not fully
developed and rests on assumption because it is a point at which there is
a large degree of intersection between many disciplines and conflicting
theories including political philosophy, ethics, legal philosophy, economics, egalitarianism, libertarianism, utilitarianism, and law and economics. This Article may be guilty of criticism that will be leveled at
both Dworkin and Nozick in that a new, fully developed theory will not
be formed and certain crucial matters will be left for future consideration. However, for now, I will briefly state my own position even if it is
a position that requires development. Essentially, I believe that there is
excessive compartmentalization between disciplines and, also, within
those who form certain "isms" or schools of thought within certain disciplines. In this context, it is unhelpful to assume, as Dworkin does,
that his theory of equality of resources is superior both as a conception
of law to the economic interpretation of law and to libertarianism. In
certain circumstances, efficiency considerations associated with law and
economics may be seen as a prerequisite to achieving certain levels of
wealth before egalitarian redistribution, even in the Dworkinian form,
can occur. Competition and the prospect of unequal resources may be
seen as an important motivational factor both for certain individuals
and for society generally. However, the moral relativism, wealth maximization, and laissez-faireism of Posner's theory of law and economics
will also fail in bringing about acceptable legal outcomes and fails to
adequately address important moral considerations. This argument also
affects Nozick's ownership-focused, libertarian, entitlement theory. Libertarianism can initially be interpreted as being political philosophy's
equivalent to laissez-faire economics. However, libertarianism is differ7 Ronald Dworkin, What is Equality? Part2: Equality of Resources, 10
283 (1981) [hereinafter Dworkin, What is Equality?].
PHIL. & PUB. AFF.
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DWORKIN, NOZICK & POSNER
ent in that ownership will trump efficiency even if, in some circumstances, rigid property rights may be inefficient.
This Article will argue that efficiency is not necessarily in conflict
with certain egalitarian rights. It will contend that efficiency cannot be
ignored when espousing egalitarian rights. This Article will question
Dworkin's theory of resource egalitarianism because it may lead to the
intolerable coercion and the kind of interference which Nozick's libertarianism decries. However, the practical application of Nozick's libertarian legal theory will also be criticized and the impact such a theory has
on his minimal state will be assessed. This Article will scrutinize Posner's assertion that wealth maximization should provide the sole basis on
which to make legal decisions in society. However, the Article will conclude by suggesting a basis for a pluralistic and pragmatic legal and political theory that will take rights, coercion, and efficiency seriously.
This theory will require further development but it will seek to consider
matters that are often considered theoretical competitors whereas, in reality, all the considerations that will be addressed cannot be considered
in isolation. This does not mean that the theory that I seek to form the
basis of here will be without theoretical foundations. There will be theoretical foundations, but they may not be unitary.
Part I will assess Dworkin's theories of law as integrity and of
equality of resources. With regard to Dworkin's legal theory, this Article will argue that it has difficulties as a prescriptive theory to guide the
decision-making processes of real judges. This occurs at both an institutional level, since judges must follow precedent, and at a justice/moral
level, since real-world judges have their own moral beliefs and do not
have the superhuman abilities of Dworkin's Judge Hercules. However, I
will agree with Dworkin that there is something important about integrity in a legal system that seeks legitimization. Part I. B will assess the
implications of Dworkin's theory of equality of resources. It will briefly
discuss Peter Westen's rejection of equality as an important concept. I
will argue that the implementation of Dworkin's egalitarian theory
could amount to excessive interference in people's lives. In this context,
I will question Dworkin's assumption that his theory of equality of resources can always be assumed to be a morally superior theory to
Nozick's libertarianism. I will also suggest that, while Dworkin has
given a good account of how equality can exist in the theoretical society
that he develops, he has not adequately justified equality as a normative
concept.
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Part II will assess Nozick's libertarian theory. This section will argue that Nozick's theory cannot consistently maintain strong libertarian
conclusions given the foundations on which Nozick's minimal state is
built. Putative imperfections in Nozick's legal system will be outlined
and may provide the basis for the legitimization of certain welfare rights.
The equal protection for all, which justifies the establishment of
Nozick's minimal state, can also lead to excessive legal claims in his
minimal state, thereby swelling the size of that state. Nozick has, in
addition, not done enough to counter potential corrupting effects of
flows of money into the legal forum of his minimal state. While this
Article questions the limited role of the state in Nozick's libertarianism,
I will also agree with Nozick that there must come a time when excessive
coercive activity by the state becomes intolerable because it interferes to
too large a degree in people's lives. To round out the discussion on
libertarianism, this section will briefly consider the libertarian theories
of the two leading legal academics in this area, Randy E. Barnett and
Richard A. Epstein. However, the section will conclude that they do
not fill the gaps in Nozick's theory and their theories may not even be
consistent with libertarianism.
Part III will assess Posner's theory of law and economics, the context in which Dworkin originally refutes both that theory and Nozick.
It will assess the goal of efficiency and wealth maximization within the
context of a legal system and society generally. Preliminary objections
to the theory of law and economics will be developed by arguing that
the theory places too little weight on moral considerations. In particular, a detailed criticism will be provided of Posner's rejection of moral
theory as a basis for legal decision making. Juries and the public, it will
be argued, expect a legal system to be moral in some important ways in
order to justify its existence. There will be an account of the overlap
between welfare theories that consider rights and rights theories based
on individuals' interests. In the end, however, it will be argued that
only rights can counter unjust legal outcomes which welfarism alone is
unable to deal with. Posner's theory of wealth maximization, contrary
to his assertions, has failed to overcome utilitarian problems. Indeed,
utilitarianism remains in the background throughout Posner's analysis.
This section will also criticize Posner's rejection of behavioral economics. It will be argued that a proper account of empirical data is essential
for formulating economic theory. Such an account is fundamentally
important if an economic theory is (as Posner's is) normative and, there-
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DWORKIN, NOZICK, & POSNER
fore, intended to guide legal decision making. Posner's failure to account for distributional issues and powerful economic agents in market
economies will also be assessed.
While this Article will question efficiency and wealth maximization
as universal, overriding concepts, this Article will also accept that such
considerations cannot be ignored by moral, political, or legal theorists.
The Article will conclude by suggesting a possible basis for a future theory based on equality that will partially incorporate libertarian and efficiency considerations. Areas for future research will be outlined at that
stage.
I.
A.
DWORKIN
Law as Integrity
Dworkin's legal theory holds that real-world judges "belong to different and rival political traditions, and the cutting edge of different
judges' interpretations will be honed by different ideologies." 8 He recognizes the difference between law and justice.9 For Dworkin, law encompasses a framework of legal precedent and institutions which make
up what he calls a "pre-interpretive structure," which judges somehow
generally recognize."1 On the other hand, justice in the real world is
individualized "and anyone's conception of justice is his theory, imposed
by his own personal convictions, of what these [moral and political]
rights actually are." 11 Dworkin then introduces his imaginary Judge
Hercules who possesses "superhuman power and patience."12 Judge
Hercules, being superhuman and having plenty of time to make decisions, is able to make "the best constructive interpretation of past legal
decisions, and law is therefore sensitive to justice ....
This seems to
refer to some higher-level, objective conception of justice that Hercules
can conceptualize but that real-world judges cannot. Hercules decides
cases interpretively, in compliance with Dworkin's conception of law as
integrity, in a way that respects precedent while incorporating political
morality. This provides the best justification for a legal system that is
8 DwoRKIN, LAW'S EMPIRE, supra note
9 Id. at 97.
10 Id. at 92.
11 Id. at 97 (emphasis added).
12 Id. at 239.
13
Id. at 262.
1, at 88.
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"best sensitive to the great complexity of political virtues."14 Dworkin
concludes by prescribing that judges shoul decide cases, as far as possi5
ble, in compliance with this theory, described as law as integrity.1
Before continuing to assess Dworkin's theory of equality of resources as a basis for his legal theory, this subsection will make some
initial preliminary criticisms of the legal theory itself. This subsection
will conclude by accepting that integrity is an important concept in justifying a legal theory. However, it will be left to a future occasion to
determine whether or not integrity is a distinct concept, as Dworkin
states, 6 or whether integrity is subsumed within other concepts such as
justice and fairness.
Brian Leiter posits an "Ought-Implies-Can-Constraint" upon
Dworkin's prescriptions as to what real judges should do. 1 7 Leiter concludes that "one thing judges cannot do is what Dworkin's Judge Hercules does."' 8 There are two important instances of why the "OughtImplies-Can-Constraint" creates problems for Dworkin as a common
law theorist.
Precedent, statutes, and a constitution limit what judges, especially
judges in lower courts, can do. Following a description of what his
idealized Judge Hercules does, Dworkin states that real-world judges
should decide cases in an interpretive way that both respects precedent,
by best explaining prior judicial history, and provides the best justification for that history in accordance with political morality. This gives
real-world judges a degree of discretion because, to a certain degree at
least, there are both nonlegal considerations' 9 and also interpretive legal
considerations. Judges must decide cases in an interpretive way that, in
addition, best respects legal precedent.
14 Id. at 398.
15 Id. at 410-13.
16 Ronald Dworkin, Ronald Dworkin Replies: Reply to Geraldj Postema's Integrity:Justice in
Work Clothes, in DWORKIN AND His CRITICS WITH REPLIES BY DWORKIN 386, 386 (Justine
Burley ed., 2004) [hereinafter Dworkin, Reply to Postema].
17 Brian Leiter, Naturalism in Legal Philosophy, STAN. ENCYCLOPEDIA OF PHIL., (Edward N.
Zalta ed., Fall 2008) (Aug. 29, 2008) availableat http://plato.stanford.edu/entries/lawphil-naturalism/.
IS Id.
19 See Joseph Raz, Speaking with One Voice: On Dworkinian Integrity and Coherence, in
285, 287 (Justine Burley ed., 2004)
[hereinafter Raz, Speaking with One Voice] (arguing that nonlegal considerations in Dworkin's
theory give judges discretion in legal decision making).
DWORKIN AND His CRITICS WITH REPLIES BY DWORKIN
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DWORKIN, NOZICK, & POSNER
Dworkin seems to prescribe his interpretive model for all decision
makers in the judicial process. These decision makers, although not
discussed in detail by Dworkin, include trial court judges, intermediate
appellate court judges, and administrative and executive branch agencies
charged with implementing statutory texts. Precedential and statutory
constraints are less controversial in the U.S. Supreme Court decisions
which Dworkin mainly discusses. However, there are other circumstances in which there is interpretive controversy relating to judicial precedent, such as where there is some dispute as to the exact nature and
extent of precedent, or where, for example, different circuit courts have
followed Supreme Court edicts in divergent ways. In such a situation, a
district court judge must engage in at least some interpretive legal analysis in deciding what really is the best way of explaining and respecting
prior judicial history. It is worth noting that a degree of interpretation
is involved since both the Supreme Court and the circuit court establish
precedent for the district court. As a result, there is a potential conflict
and a degree of discretion for the district court judge when deciding
cases.
This is not necessarily problematic for Dworkin because he can
argue that it is overall precedent that the district court judge must assess.
However, left to the district court judge, it is possible for such a judge to
ignore precedent of the court directly above or of the Supreme Court.
This is not necessarily a problem for Judge Hercules, who has a superhuman ability to interpret, but it is a problem for a real-world judge and it
is a problem that Dworkin does not fully consider. Dworkin could
likely bypass this consideration by stating that the district court judge
should simply best follow precedent. Usually, in the real world, this
would probably amount to the district court judge accepting her circuit's interpretation of a U.S. Supreme Court edict. However, in Dworkin's theory it seems that the district court judge has greater discretion
because she must best explain precedent and that best explanation does
not necessarily have to follow the circuit court's interpretation of the
Supreme Court's edicts. It is at least worth noting that legal discretion
in this form of assessment is not uncontroversial and standards may be
needed to direct trial court judges in these sorts of circumstances to
ensure at least a degree of consistency in interpreting precedent. In addition, this situation illustrates the means by which the "Ought-ImpliesCan-Constraint" affects Dworkin's thesis. If ought implies can, then in
a system in which there is a hierarchy of courts and the common law
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doctrine of precedent, the court on the bottom rung cannot do what it
believes it ought to do without undermining fundamental principles of
the common law system - stare decisis and hierarchy.2 °
Dworkin's view that judges should decide cases not only in a way
that respects precedent but also in a way that provides the best justification for that precedent in accordance with political morality is more
controversial. This view is controversial on at least two fronts. Although Dworkin mainly considers appellate cases, his methods of judicial decision making are not restricted to appellate court judges. This
would allow lower court judges to, in effect, overrule higher court judgments if those judgments could not be best justified in accordance with
political morality. Even assuming that lower court judges are able to
best determine political morality, it seems that this goes beyond the role
of most judges in everyday trials. Lower court judges cannot routinely
ignore precedent set by higher courts on the ground that such precedent
is noncompliant with political morality. Such behavior, on the part of a
lower court judge, would likely lead to extreme censure by higher courts
and other branches of government. It would also be problematic for
practical justifications of the common law system, such as consistency
and efficiency. Again, if ought implies can and political morality conflicts with stare decisis and a hierarchical court structure, bottom rung
and intermediate level courts cannot always do what Dworkin believes
they ought to do if the common law system is to maintain the level of
precedential stability and hierarchy on which the system is based. Additionally, statutory and judicial precedents are not necessarily founded on
political morality. Certain rules of procedure, such as statutes of limitation, are not primarily in place because they support the highest form of
political morality. They are in place to ensure efficiency in the judicial
system. The ability of judges to reject such rules on the grounds that
they do not conform to political morality would, therefore, seem odd.
So, the role Dworkin prescribes for judges is not uncontroversial
when the judges are best interpreting precedent and is highly controversial when applying political morality to prior judicial decisions, statutes,
and the Constitution. In many cases judges simply cannot do this, and
even if they could, it would seem to undermine foundations on which
the common law system is built. Furthermore, there does not seem to
be any room within Dworkin's system of judicial decision making,
which incorporates political morality, for deference to the decisions
20
The author is grateful to Michael Libonati for clarifying this point.
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DWORIJN, NOZICK, & POSNER
made by other branches of government, and this seems to present numerous institutional and democratic issues which Dworkin fails to recognize and account for.2 '
The "Ought-Implies-Can-Constraint" can be assessed further at a
more theoretical level. Dworkin's argument can be laid out as follows:
(1) Real-world judges "belong to different and rival political traditions, and the cutting edge of different judges' interpretations will be honed by different ideologies." They thus have
an individualized conception of justice.2 2
(2) Judge Hercules, being superhuman and having plenty of time
to make decisions, is able to make "the best constructive interpretation of past legal decisions, and law is therefore sensitive to justice ... 23
(3) Judges should decide cases, as far as possible, in the same way
24
that Hercules does, in compliance with law as integrity.
Some judges may disagree with Dworkin as to (1) and argue that
their judgments and interpretations are not honed by their association
with different political traditions, but by some notion of neutrality
when considering justice in the judicial context, which, in the common
law world, includes following precedent to a certain degree. So, (1)
presumes, at a preinterpretive level, the manner in which judges approach the law. It also assumes that judges will bring that presumptive
political bias to crucial cutting-edge decisions.25 While this may often
be true, it is problematic because it suggests political predispositions
among judges who are the overseers of Dworkin's law as integrity. This
is a significant practical consideration. However, it is also useful to concentrate on the logical possibility of a system functioning in the way
Dworkin describes and prescribes. (1) through (3) can also be stated as
follows:
21 See ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 187-88 (Julian Rivers
trans., 2002) (avoiding, to some degree, the institutional and democratic difficulties faced by
Dworkin by allowing for certain forms of judicial deference to the legislative branch of
government).
22 See supra note II and accompanying text.
23 See supra note 13 and accompanying text.
24 See supra note 15 and accompanying text.
25 Cf Richard Posner, The Anti-Hero, in THE NEW REPUBLIC (2003) (arguing, in a way that
would support Dworkin's conception of the politicization of the judiciary, that "the [U.S.]
[S]upreme [C]ourt is a political court . . .[even if the justices] have to be seen to be doing law
rather than doing politics").
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(1)
(2)
(3)
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Non-H can do j but not J.
H can do J.
Non-H should do J.
This creates numerous problems. It is here that the "Ought-Implies-Can-Constraint" has the greatest impact upon Dworkin's project.
Given that judges do not have the superhuman capacities that Hercules
has to decide cases in a way that is consistent with best moral and political practice and that their own political leanings influence their decision-making processes, it may not be reasonable to expect them to
follow Hercules' methodology for deciding cases. Real-world judges
cannot be assumed to have any higher ability at (3) than they have at
(1). Even assuming that they accept that they ought to follow Judge
Hercules, there is little reason to suppose that they have any greater
ability to follow a path that embraces an idealized form of law as integrity. As Learned Hand points out, judges are not trained in moral philosophy and, therefore, it cannot be expected that they will act in
accordance with objective "principles of morality" when they are deciding cases. 26 Dworkin could adopt a Kantian methodology to try to get
around the "Ought-Implies-Can-Constraint. "2 7 However, he would
first have to recognize the problem that his theory of law as integrity
presents. Acceptance of the pragmatic shortcomings of his theory may
make the whole Herculean task largely pointless so that many judges
could say that they do their best to decide cases in a way which best
conforms with institutional constraints, such as statute and precedent, as
28
well as some conception of fairness or integrity.
26 LEARNED HAND, THE BILL OF RIGHTS
24 (1979).
27 Cf IMMANUEL KANT, RELIGION AND RATIONAL THEOLOGY 110 (Allen W. Wood &
George di Giovanni trans., 2001) (1786). Kant argues, controversially, that although God and
mortality of the soul caniot be proven, metaphysically, they are conditions needed in order to
prescribe and legitimize moral obligations. Kant argues that virtue is not always correlative with
happiness and so we must endorse God and immortality as a way of rewarding virtue in the
hope of realizing the highest good, which is an imperfect justification for virtue, unlike the
categorical imperatives that do not need such antecedent, pragmatic justifications in order to
legitimize endorsement and prescription.
28 See Stanley Fish, Still Wrong after All These Years, 6 L. & PHIL. 401, 414 (1987)
As an account of what legal actors do, 'law as integrity' is powerful and persuasive;
lawyers and judges do in fact see the law as 'structured by a set of coherent principles'
which they feel obliged to take account of and extend. But, precisely because that is
what they do by virtue of being judges and lawyers, it is pointless to enjoin them to do
it.
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Additionally, the contention Dworkin endorses - that even hard
cases can be correctly decided - embodies, at least implicitly, that there
are not only right answers to legal problems but also that there are,
almost by necessity, right answers to moral questions. This is because
moral questions must be decided in some monistic manner in order to
underpin the endorsed theory that there are right answers to legal
problems. Joseph Raz argues that Dworkin's theory of law as integrity is
committed to strong monism from the start.2 9 Raz argues that this creates a coherence problem because individual courts have discretion in
applying nonlegal considerations. 30 Dworkin responds by stating that
he is not a monist?3 However, Dworkin is a monist in the singular
sense of believing that there are right answers to hard cases. This is
problematic for the reasons set out above. Even if Hercules can somehow find the right answers to close legal calls, it is not clear how realworld judges can do the same. Dworkin also has a problem in determining when respect for precedent trumps moral authority, even if perfectly ascertainable, for judges. Furthermore, Dworkin largely ignores
the significant role that law, common and statutory, plays in influencing
private decision making and the impact this likely has on judges' rulings
when they are seen as creators of precedent.
It does not seem that Dworkin's theory, as it stands, can properly
explain why there is a correct answer to Mills v. Wyman.32 In that case,
a father sent a letter promising to pay the medical expenses for his sick,
estranged son and subsequently reneged on that promise. The Supreme
Judicial Court of Massachusetts held, in favor of the father, that a mere
promise to pay cannot be enforced without consideration. 3 However,
it is evident throughout the holding that Chief Justice Parker thought
that the father had a moral obligation to pay the medical expenses. This
case illustrates that there may not be right answers to hard cases, as
Dworkin contends.3 4 It also illustrates the institutional restraints that
29
Raz, Speaking with One Voice, supra note 19, at 285.
30 Id. at 287.
31 Ronald Dworkin, Ronald Dworkin Replies: Reply to Joseph Raz 's Speaking with One Voice:
On Dworkinian Integrity and Coherence, in DWORKIN AND HIS CITICS WITH REPLIES BY
DwoRKIN 381 (Justine Burley ed., 2004).
32 Mills v. Wyman, 20 Mass. (1 Pick.) 207 (1825).
33 Consideration, n. "Something of value (such as an act, a forbearance, or a return promise)
received by a promisor from a promisee." BLACK'S LAW DICTIONARY 131 (2nd ed. 2001).
3,4 Dworkin has recently backed away from his "rights answers" claims. See Ronald Dworkin, Pragmatismand Law, in RONALD DwoRKIN, JUSTICE IN ROBES 1, 41 (2006) (claiming that
his "right answers" thesis is "very weak and commonsensical"). The thesis still exists, however,
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judges have on them. And, finally, it illustrates something else that
Dworkin seems to overlook: Judges not only interpret precedent, they
make precedent. 35 So, even if Judge Hercules may feel compelled to
find against the father, he has to account, at least to a certain degree, for
the effects that his ruling will have in setting precedent for all future
decisions of courts at the same level, courts at a lower level, and private
persons in society. The effect of finding against the father in Mills
would have been to undermine the consideration doctrine generally.
Chief Justice Parker may have thought consideration should have been
abandoned to enforce the moral obligations of the father in that particular case but he had also to be aware of the effect on the consideration
doctrine in the future and he may not have wanted to undermine that
doctrine generally. Dworkin's theory seems unable to cope with this
case, illustrating doubts as to the practicality of his monistic right answers conception in hard cases.
I do, however, believe that there is something about integrity that
should underlie a legal system. 36 This problem will be left largely for
future research. As will be apparent in the discussion of Posner's economic interpretation of law in Part III, there are problems if law is used
solely as an instrumentalist exercise to maximize future outcomes.
There is likely something more to a legal system that must justify its
coercive power that goes beyond mere instrumentalism. A legal system
should usually address cases that are before it and this is likely a key
aspect of integrity. Integrity may not be a value in itself, as Dworkin
contends.37 However, even if it is subsumed within other values, such as
fairness and due process, it has at least some initial coherence as a value
in a legal system because it involves something more than mere wealthmaximizing instrumentalism. But, it does not seem that integrity must
and even cases which Dworkin believes obviously have right answers are full of difficulties.
Consequently, the analysis here is still relevant.
35 This may initially seem to go against the discussion in Part III of this Article where it is
argued against Posner's theory of law and economics that a legitimate theory should generally
decide cases on their merits and should not be concerned solely with future wealth maximization. However, the suggestion here is merely that the precedent-setting role of judges is something which Dworkin needs to take into account. In any case, judicial precedent is something
that judges are familiar with but future wealth maximization is as unfamiliar as moral philosophy, if not more so.
36 See Gerald J. Postema, Integrity: Justice in Workclothes, in DWORKIN AND HIS CRITICS
WITH REPLIES BY DWORKIN 291, 291-318 (ustine Burley ed., 2004) (arguing that integrity is
an important value in law and in all other aspects of government).
37 Dworkin, Reply to Postema, supra note 16, at 386.
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necessarily mean that there are right answers to hard legal decisions.
"Thus one may acknowledge a person to have integrity even though that
person may hold importantly mistaken moral [or legal] views. '38 This
conception of integrity should preclude excessive partisan political and
economic interests from influencing the decision-making procedures of
a system of law.3 9 While Dworkin's legal theory, as it stands, may not
fully illustrate the means by which real-world judges can decide cases in
a unified manner and in accordance with integrity, integrity in a legal
system is generally expected by citizens in some form, and that integrity
is also likely to be one of the means by which the state and the legal
apparatus of the state will be justified.
B.
Equality of Resources
Dworkin's political theory of equality of resources distinguishes between option luck, "which is a matter of how deliberate and calculated
gambles turn out . . . [and] brute luck [which] is a matter of how risks
fall out that are not in that sense deliberate gambles .
"...40 Option
luck and its associated differential outcomes for different persons is the
result of individual choice and, therefore, redistribution from those who
do better is not warranted. This assumes that people enter the market
or begin Dworkin's auction on equal terms.4 1 Dworkin argues that the
possibility of insurance provides a link between the two kinds of luck.
Dworkin's theory would not provide redistribution from one person to
38 Damien Cox, Marguerite La Caze & Michael Levine, Integrity, STAN. ENCYCLOPEDIA OF
PHIL., (Edward N. Zalta ed., Fall 2008) (Apr. 9, 2001) available at http://plato.stanford.edu/
entries/integrity/.
39 People and judges are likely capable of personal and impersonal reasoning. Cf THOMAS
NACEL, EQuAuTY AND PATIAI Y 64 (1991) ("The impersonal standpoint in each of us produces, I shall claim, a powerful demand for universal impartiality and equality, while the personal standpoint gives rise to individualistic motives and requirements which present obstacles to
the pursuit and realization of such ideals."). Further, judges ought to use this impersonal perspective as much as possible when making legal decisions. This would require some form of
monitoring. Perhaps critical legal studies academics have done some research along these lines or
will do so in the future. But, even if unfavorable results were produced regarding particular
judges, it is not certain what could be done especially for life-tenure judges. These kinds of
considerations go beyond the bounds of this Article but they are important to a legal system that
claims to function with integrity. It would also be useful to be able to say somehow that past
legal decisions were wrongly decided on the basis of integrity. Dworkin, it seems, cannot do this
to any great degree because judges in the past could have used "the best constructive interpretation of past legal decisions, and law [was] therefore sensitive to justice .
DwoRKIN, LAW'S
EMPiRE, supra note 1, at 262.
40 Dworkin, What is Equality?, supra note 7, at 293.
41 Id. at 289.
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another if one decided to purchase insurance against blindness and the
other person did not, and both were blinded in the same accident.4 2
That would be option luck and warrants no corrective redistribution.
However, brute luck, being born blind, for example, is uninsurable and
Dworkin argues that society should implement a scheme of compulsory
taxation to redistribute to the handicapped, on the assumption that the
handicapped would have purchased insurance at an average level had it
been available to them. 3 Dworkin's use of a hypothetical insurance
market also explains why, if individuals were unaware of how valuable
their talents would be, they would be unwise to buy policies to insure
that they were in the category of people who are paid most for their
talents. This is because:
[T]he cost of the premium will be extremely high .... It will approach the value of the projected return if the risk eventuates. So
someone who buys this insurance faces an extremely high chance of
gaining very little. Suppose he loses, however; suppose he is one of
those who does have the maximum earning power. He is now in a
much worse position than if he had never insured, because he must
now work at close to his top earning capacity just to pay the high
premium for his insurance on which he collected nothing - just, that
44
is, to break even. He will be a slave to his maximum earning power.
Dworkin endorses a taxation scheme that compensates for brute
luck or talent deficiencies from those who benefit from brute good luck
or talent.4 5 Assuming people would have purchased insurance at an average level, redistribution in the form of just taxation should take place
to compensate for the inability to earn certain levels of income where
that inability is based on brute luck. Dworkin recognizes that it may be
difficult for an insurer to determine individuals' actual abilities. However, he glosses over this problem by suggesting solutions within the coinsurance market and by placing the burden on the insured to prove
how much ability or lack of ability they really have.4 6 The fair tax system, in the hypothetical insurance market, should shadow the average
42
43
44
45
46
Id at 296.
Id. at 297.
Id. at 319-20.
Id. at 324.
Id. at 325-26.
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premium as far as possible, but even Dworkin recognizes that in the real
world:
We might decide that a tax scheme so closely modeled on that market
is offensive to privacy, or too inefficient in other ways. We might decide, for these or other reasons, that a scheme that tied redistribution
to actual earnings rather than to the ability to earn, for example, was a
the insurbetter second-best approximation to the ideal of mimicking
47
ance market than any other scheme we could develop.
Dworkin's theory of equality of resources can be fairly and uncontroversially summarized as follows:
(1) Equality of resources over overall lives is warranted.
(2) Redistribution should take place to compensate those who
suffer as a result of brute luck but not to compensate those
who do comparatively worse as a result of option luck associated with what they choose to do.
(3) A just taxation scheme will: (a) individually compensate people based on the average level of insurance that people generally would have purchased in a hypothetical insurance market
if they did not know how valuable their talents would be economically in the real-world labor market; (b) individually
compensate [people] based on brute luck being below the average, but not for option luck being below the average, and
the tax scheme should somehow be able to assess if an individual is using his talents in a market inefficient way,48 or if
he is simply not earning an average income due to his lack of
natural talent.4 9
(4) However, where such a scheme of taxation interferes with privacy, efficiency, or some other value, the state can use some
second-best approximation and redistribute based on actual
earnings.5 0
47
Id. at 326 (emphasis added).
This is a form of option luck because the individual may be choosing not to maximize the
market income that his talents can generate. Cf HERMtaN MELVILLE, BARTLEBY THE SCRfV48
ENER:
A STORY OF WALL-STREET (1853) (a short story reciting details of the scrivener Bar-
tieby's lack of motivation to work).
This is brute luck because it involves no individual choice.
Note the considerable impact this has on brute luck, option luck, and other factors which
Dworkin considers such as motivation. This is because, given the acceptance of this second-best
49
50
approximation, an individual who rises above the average through productive option luck factors
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Before turning to the main potential libertarian criticism of Dworkin's theory of equality of resources - that it would constitute excessive
governmental interference in people's lives - it is necessary to consider
two arguments that question Dworkin's assumption of equality in (1).
First, Jan Narveson argues that Dworkin's papers on equality do not do
much in the way of actually arguing for equality.5 1 This is particularly
perplexing for a libertarian like Narveson. Dworkin assumes that his
theory of equality of resources is a morally superior basis for his system
of law as integrity.52 He then refers the reader to his famous paper on
equality of resources where he once again fails to argue for equality but
says that, "the demands of equality (we assume in this essay) are prior to
other desiderata .... , In that paper, he refers the reader to another
paper where he tells the reader that he deals in more detail with Nozick
(whom he usually assumes away). 5" However, in that other paper,
Dworkin does not explicitly deal with Nozick in any detail and Dworkin contradicts himself by suggesting that in the real world, equality
55
competes with other values.
Thus, equality in (1) is never fully explained. It is either assumed
to have priority or it is posited amongst other values and equality is not
explained as a primary value amongst other values. This is troublesome
for a libertarian who sees equality in acquisition and transfer as important, but does not see any legitimacy in a theory, such as Dworkin's,
that advocates redistribution to achieve egalitarian outcomes. Dworkin
stands too easily accused of a common philosophical problem - only
being able to convince people who already agree with him, while needlessly sending opponents on a wild goose chase in search of a strong
defense of equality in Dworkin's work.56
such as risk and hard work can still be taxed to redistribute
talented who are below the average and choose not to work.
motivational practices among those below the average to stay
tion that they will receive transfer payments.
51 Jan Narveson, On Dworkinian Equality, 1 Soc. PHIL.
to even the potentially extremely
In turn, this can lead to negative
below the average in the expecta& POL'Y 1, 1-2 (Autumn 1983);
Jan Narveson, Reply to Dworkin, 1 Soc. PHIL. & POL'Y 41, 41 (Autumn 1983).
52 DWORKIN, LAW's EMPIRE, supra note 1, at 301.
53 Dworkin, What is Equality?, supra note 7, at 295 (emphasis added). See id. at 289
("Equality of resources supposes that the resources devoted to each person's life should be equal.")
(emphasis added).
54 Ronald Dworkin, Comment on Narveson: In Defense of Equality, 1 Soc. PHIL. & POL'Y
24, 27-30 (Autumn 1983).
55 Id. at 39.
56 This may also frustrate egalitarians who want a more robust defense of egalitarianism and
may question the acceptability of Dworkin's nonoutcome egalitarian thesis.
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Second, in a related context, Peter Westen argues that the concept
equality
is circular and is fully subsumed in other concepts, such as
of
justice and fundamental rights.5 7 Thus, Westen argues that it is not
equality per se that African Americans sought after the introduction of
the Fourteenth Amendment. 58 They sought racial justice. Equality is
subsumed within that concept. Indeed, it is not unreasonable to suggest
that, given history and what had happened to African Americans, it is
justifiable to afford them more than equality and still be within the
remit of racial justice.5 9 This argument against equality as a meaningful
concept is problematic for Dworkin because he argues that equality is a
fundamental concept. It is all the more troubling because, in reality,
Dworkin accepts that there are other values that compete with equality
such as privacy and efficiency. Again, Dworkin must argue further as to
why equality is important and why it holds a primary position of importance among the competing values that he recognizes.
Contrary to Westen's thesis, there seems to be something important about the notion of equality. It is important both as a comparative
concept 60 and as a rhetorical concept. 6 Additionally, Westen argues
that the prevalence given to arguments for equality distorts and undermines the importance of other values such as fundamental rights and
that this arguably hinders the attainment of such rights.6 2 Calls for
equality need not necessarily entail the consequence that Westen envisages. If someone has less of something, a claim for equality has logical
as well as practical importance even if one wants more than equality, as
in claims for affirmative action. One may be in fact seeking some other
value, such as justice. But, so long as one has less of something and that
deficiency is unfair, unjust, or unjustified, a claim for equality has meaning in both a logical and rhetorical sense and, therefore, cannot be dismissed even if its attainment can be subsumed under other labels.
Furthermore, Westen does not fully justify his assertion that claims of
57 Peter Westen, The Empty Idea of Equality, 95 HARV. L. REv. 537, 547-65 (1982).
58 Id. at 565.
59 This could be a way of interpreting affirmative action. Id. at 553-54. However, affirmative action could also be seen as positive inequality in one sphere, mainly educational, in order to
compensate for inequalities in other spheres such as access to resources, political office, and so
on.
60 Westen rejects this notion. Id. at 552-53.
61 See Martin Luther King, Jr., Letterfrom Birmingham City Jail,in CIvIL DISOBEDIENCE IN
Focus 68, 68-84 (Hugo Adam Bedau ed., 1991) (1963) (King arguing for justice, equality, and
equal justice).
62 Westen, supra note 57, at 585-86.
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equality stand in the way of other claims. Claims of equality are given
the importance which Westen stipulates because if someone has less of
something, and that is unfair or unjustified, then that unequal standing
is important logically and rhetorically even if the attainment of that
something results in the claim of equality being subsumed.
Finally, there is another sense in which equality is important. That
is in the context of which Bernard Williams, deriving from Kant's second interpretation of his categorical imperative, posits the notion of
equal respect for persons.6 3 This is not to say that people are always
deserving of equal respect; it is just to say that, at some basic level,
equality is an important concept as it pertains to how people should be
treated. Even when equality is subsumed within other values, that does
not mean that it can always be deemed to be redundant. One could go
further and question the importance that Westen attributes to equality
in hindering the attainment of other values. If other values subsume
equality, why for thousands of years have people not abandoned the
concept when it is subsumed within other values? Why, as Westen recognizes, does equality continue to play such an important role in debate
64
when its attainment is subsumed within other values?
The remainder of this section will concentrate on Dworkin's
claims summarized in (2) through (4) (above). In Law's Empire, Dworkin assumes that "equality of resources is superior to the libertarian conception: it fits our legal and moral practices no worse and is better in
abstract moral theory. ''65 This assumption may have weight in some
circumstances; however, there are other circumstances where libertarianism may be morally superior to equality of resources, circumstances
which Dworkin himself recognizes under (4).
63
Bernard Williams, The Idea ofEquality, in EQUALITY: SELECTED
READINGS
91, 91-102
(Louis P. Pojman & Robert Westmoreland eds., 1997).
64 Another preliminary response to Westen's theory is that it is likely unfalsifiable and, therefore, irrefutable. See LUDWIG FEUERBACH, LECTURES ON THE ESSENCE OF RELIGION vol. II,
ch. 24(B) (Ralph Manheim trans., 1968) (1841) (arguing that unfalsifiable arguments are irrefutable and, therefore, their validity is questionable). Much theoretical legal argument may be
unfalsifiable in the sense that Feuerbach describes and, therefore, is metaphysical. However,
there seems to me to be something particularly odd about Westen's thesis. One can imagine a
person demanding equality of something. Westen would respond that it is not really equality
that person wants, it is that something or another thing of similar value. Once the person gets
that something, equality is subsumed within that something. Therefore, that something is redundant and is meaningless. But is it? Was it always? There is something strange about Westen's argument. It may well be just too clever and a form of sophistry.
65 DWORKIN, LAW'S EMPIRE, supra note 1, at 301.
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Robert Nozick's conception of the Kantian injunction - that people should be treated as ends and not means - leads to the conclusion
that the state should not interfere in individuals' lives for redistributive
ends. Kant's injunction is used by Nozick as the basis for formulating
side constraints which determine what cannot be done to persons. It is
also the main reason for believing that taxation and redistribution are
unjust because, by taxing and redistributing, a more-than-minimal state
uses individuals as means to provide for state-determined ends. Taxation also infringes upon people's ability to plan meaningful lives, according to Nozick, because if resources are continually up for grabs due
to taxation, people do not have the stability needed to plan meaningful
lives.6 6 In (2) and (3), Dworkin justifies redistribution to compensate
for differences in brute luck such as birth handicaps and so on. Not
only is redistribution justified, but it must be carried out on an individual basis to compensate people based on the average level of insurance
that people generally would have purchased in a hypothetical insurance
market if they did not know how valuable their talents would be economically in the real-world labor market. In addition, individuals must
be assessed individually to determine if they are due compensation based
on below average brute luck, but not for below average option luck. So,
too, the tax scheme should somehow be able to assess if an individual is
using his talents in a market inefficient way or if he is simply not earning an average income due to his lack of natural talent. The coercive
apparatus of the state must presumably undertake this sort of testing
and redistribution. Although Nozick may have interpreted the Kantian
injunction in too narrow a fashion, there could be circumstances where
the statist talent testing and individualized redistribution that Dworkin
prescribes could constitute unbearable state interference in people's
lives. 6 7 This is the reason that, in practice, Dworkin says that privacy
interests - commensurate with normal libertarian considerations - can
trump his own theory of equality of resources ((4) above).
Dworkin needs to do more to justify equality. Given the preeminence that he attaches to the concept, he cannot rely on mere assumption. Equality is not a redundant notion even if, on occasion, it is
66 NOZICK, ASU, supra note 5, at 32.
67 Cf Kurt Vonnegut, Jr., Harrison Bergeron, in EQUALITY: SELECTED READINGS 315, 31518 (Louis P. Pojman & Robert Westmoreland eds., 1997) (a short story in which Vonnegut
depicts a nightmarish United States of the future where the state continuously interferes in
people's lives to assess talent and handicaps and ensure genuine equality).
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subsumed within other values. Without further development and more
grounding, Dworkin cannot assume that his theory of equality of resources is morally superior to libertarianism. There are imaginable circumstances where equality of resources could amount to excessive
interference in people's lives, and where it does, libertarianism may be a
morally superior theory. As a consequence, Dworkin has failed to ade-
quately establish his theory of equality of resources as a foundation for
his theory of law as integrity.
II.
NOZICK AND LIBERTARIANISM
Given that Dworkin's theory of equality of resources cannot always
be assumed to be a superior theory in abstract moral theory to libertarianism, it is therefore useful to see if libertarianism can act as a legitimate
theory for a legal system.68 This section will primarily focus on Robert
Nozick's libertarian theory, as Dworkin does. However, Nozick's libertarianism will be rejected as the basis for a legal system because of likely
imperfections and various conflicts which his proposed legal system has
68
Libertarian themes are common in American legal reasoning. See, e.g., W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624 (1943) (holding it unconstitutional on First Amendment
grounds to force Jehovah Witness children to salute the flag); Lochner v. New York, 198 U.S. 45
(1905) (unconstitutional for a state to interfere in freedom to contract on the grounds that that
would be excessive interference with the liberty of persons); Lawrence v. Texas, 539 U.S. 558
(2003) (unconstitutional under the Fourteenth Amendment to ban homosexual sex); Griswold
v. Connecticut, 381 U.S. 479 (1965) (Justice Douglas interpreting the Bill of Rights as restraints
on governmental interference in peoples' lives and interpreting the Ninth Amendment as a natural right restraint on repulsive governmental interference in people's lives). See also, e.g., Samuel
Warren & Louis D. Brandeis, The Right to Privacy, 4 HAv. L. REv. 193 (1890) (arguing for a
constitutional right to privacy); Randy E. Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, in CATO SUPREME COURT REvIEw 21, 2002-2003 (James L. Swanson ed., 2003)
(arguing that the Supreme Court, through Justice Kennedy, endorses libertarian moral reasoning
which manifests itself in a right to private, consensual homosexual sex); Randy E. Barnett, Foreword- Whats So WickedAbout Lochner?, 1 N.Y.U. J. L. & LIBERTY 325 (2006) (arguing that the
Supreme Court decision that allowed bakers to decide their own working hours could be considered to be properly decided). But see, e.g., Marsh v. Alabama, 326 U.S. 501 (1946) (holding
that First Amendment rights trump property rights); Katko v. Briney, 183 N.W.2d 657 (Iowa
1971) (holding that a person's right to protect his property against trespassers does not give him
the right to use an automated spring gun); N.J. Coal. Against War in the Middle E. v. J.M.B.
Realty Corp., 138 N.J. 326 (1994) (holding that protestors' rights to circulate petitions at a
shopping mall trumped the right of the property owners to exclude); Shelley v. Kramer, 334
U.S. 1 (1948) (holding that African Americans cannot, under the Fourteenth Amendment, be
excluded from the house that they occupy because of private agreements among landowners
which excluded African Americans from their neighborhood); Korematsu v. United States, 323
U.S. 214 (1944) (holding it constitutional to intern Japanese Americans on the basis of spurious
military information which stated that they were a threat to national security).
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DWORKJN, NOZICK & POSNER
with libertarianism generally. This section will also provide introductory comments on Randy E. Barnett and Richard A. Epstein, two eminent libertarian legal scholars. However, it will be argued that Barnett
fails to overcome concerns that Nozick recognized if conflicting legal
authorities are accepted in a single society. Epstein's position, while interesting and potentially useful for a nonlibertarian, cannot consistently
be deemed libertarian because he leaves the door open for a large
amount of nonlibertarian redistribution.
Nozick argues that the minimal state comes about through an "invisible hand process" that does not violate anyone's rights. The minimal
state evolves through a multistage process. First, in the state of nature
individuals form "mutual protective associations" in order to protect
their rights. They do this because other people's judgments when disputes occur are biased in their favor and because individuals, by themselves, will lack power and will be unable to enforce their rights when
confronted with strong people who disagree with them. Second, because some people may not wish to take on the costs of protecting
others within their associations and because some are very good at protecting, entrepreneurs interested in, and good at, protecting people form
"commercial protection agencies." Third, there would be mergers, cooperation, and cost-saving agreements in geographic areas that would
result in the establishment of a dominant protection agency. Fourth,
because the dominant protective agency does not have a monopoly over
the use of force and because it does not provide protection for all, it
cannot be regarded as a state. But, being wary of loners using force
recklessly against its clients, the dominant protective agency prohibits
such use of force, becomes an adjudicator in disputes, monopolizes the
use of force, and, by so doing, becomes "an ultra-minimal state." Fifth,
by not allowing loners to enforce their rights, the ultra-minimal state
infringes upon the rights of loners or people unwilling or unable to pay
the protective fees of the ultra-minimal state and such people must be
compensated for this rights infringement. This compensation comes in
the form of protective services for those who do not pay for them and,
as a result, the ultra-minimal state not only monopolizes the use of force
but, in addition, provides protection for everyone and achieves Nozick's
two conditions necessary for statehood - monopoly of force and universal protection - and, in so doing, becomes a minimal state.6 9
69
NOZICK, ASU, supra note 5, at 10-28.
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However, no more extensive state than the minimal state can be
justified. The minimal state provides protection against force, theft, and
so on but is not allowed to tax and redistribute to try to achieve governmental distributive patterns or end states. Such patterned or end-state
seeking projects will be futile anyway because they will be short-lived so
long as people are free to exchange. 7 ' The more-than-minimal state interferes with individuals' abilities to plan what, for them, are meaningful
lives and thereby violates Nozickian side constraints which severely limit
the way in which individuals may be used as means for redistributive
ends. 71 Nozick argues that so long as people are entitled to their holdings in accordance with his principles of acquisition 72 and transfer, the
state cannot violate people's entitlement rights by seizing those holdings.
Nozick endorses a historical system of justice and reasons that individuals are entitled to their holdings so long as they are held in accordance
with the following principles:
(1) A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding.
70 See id. at 160-61 (Nozick's famous Wilt Chamberlain argument which is not discussed in
this Article).
71 Id. at 33. This formulation of side constraints and means-ends analysis is derived from
Nozick's interpretation of Kant's second categorical imperative. See IMMANUEL KANT,
GROUNDWORK OF THE METAPHYSICS OF MORALS 96 (H.J. Patton trans., 1964) (1785) [hereinafter KANT, GROUNDWORK]. This Article will not criticize Nozick's adoption of Kant's categorical imperative in any detail. However, it is likely that Nozick adopts Kant's imperative in
too narrow a manner.
72 NOZICK, ASU, supra note 5, at 174-82. Nozick criticizes John Locke's proviso relating to
initial acquisition, which states that acquisition is justified so long as others are left no worse off
following acquisition. See JOHN LOCKE, Two TREATISES OF GOVERNMENT, THE SECOND
TREATISE chs. II, IV (Student Ed., Peter Laslett ed., 1988) (1690) (developing his proviso which
generally justifies property acquisition albeit with the constraint that enough and as good be left
over for others). Nevertheless, Nozick "assume[s] that any adequate theory of justice in acquisition will contain a proviso similar to the weaker of the ones we have attributed to Locke."
Nozick argues that there should be a baseline set that will fix the standard of living commensurate with the "no worse off" state of nature level of existence but he fails to do this. In the end,
he modifies Locke slightly so as to likely allow more extensive acquisition with less consideration
of the standard of living warranted for those who may find themselves worse off than they would
have been in the state of nature following the acquisition of others. Note, however, that there is
a Lockean shadow which accounts for changing conditions of scarcity in society:
Thus a person may not appropriate the only water hole in a desert and charge what he
will. Nor may he charge what he will if he possesses one, and unfortunately it happens that all the water holes in the desert dry up, except for his. This unfortunate
circumstance, admittedly no fault of his, brings into operation the Lockean proviso
and limits his property rights.
NOZICK, ASU, supra note 5, at 180.
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DWORKJN, NOZICK & POSNER
(2)
A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the
holding, is entitled to the holding.
(3) No one is entitled to a holding except by (repeated) applications of 1 and 2.7
In addition, there is a principle of rectification that can be summarized as:
(4) Individuals are entitled to be compensated if they suffer as a
result of others not acting in accordance with the above
principles.
Nozick's principle of rectification can be explained further. "Idealizing greatly," Nozick supposes that a principle of rectification along the
following lines will be arrived at:
This principle uses historical information about previous situations
and injustices done in them (as defined by the first two principles of
justice and rights against interference), and information about the actual course of events that flowed from these injustices, until the present, and it yields a description (or descriptions) of holdings in the
society. The principle of rectification presumably will make use of its
best estimate of subjunctive information about what would have occurred (or a probability distribution over what might have occurred,
using the expected value) if the injustice had not taken place. If the
actual description of holdings turns out not to be one of the descriptions yielded by the principle, then one of the descriptions yielded
74
must be realized.
This section seeks to show first, that the historical principle of rectification is subject to likely imperfections that, in reality, may lead to
the justification of at least certain minimums in Nozick's state for such
things as sustenance and opportunity, which will most likely be provided by some form of welfare state. Second, this section will argue that
if there is no welfare state and all people are to be provided with the
genuine protection of the minimal state, which is a main justificatory
reason for moving from the ultra-minimal state to the minimal state,
then the minimal state will have to attend to a slew of petty claims.
Third, this section will contend that the legal apparatus of the minimal
state is subject to corruption if there is a market for legal representation
73
74
NOZICK, ASU, supra note 5, at 151.
Id. at 152-53.
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and legal representation impacts upon the outcomes of legal disputes.
Fourth, this section will reason that the benefits that the wealthy have in
the minimal state, including protection and ownership, mean that they
have little legitimate grounds for complaint if the minimal state does
more than provide them with protection. There will not be a detailed
moral criticism of Nozick's libertarianism. The primary aim here is to
show shortcomings in his legal theory. However, on occasion, views on
the shortcomings of the moral basis of Nozick's theory will be evident.
First, the implementation of Nozick's principle of rectification over
history is likely to be extremely complex because in order to determine
whether an acquisition or transfer is just, one must go back in history
and examine that acquisition or transfer. If an acquisition or transfer is
deemed to be unjust, then one must rectify the unjust acquisition or
transfer itself and the subsequent chain of transfers that were affected by
the initial unjust acquisition or transfer. Once this is done, one must
compensate the harmed party by giving him the resources that he would
have accumulated had the injustice not occurred. Such compensation
should be paid by the person that committed the unjust act.
There are a number of immediate difficulties to consider. The person who committed the unjust act may have squandered resources
needed to pay compensation. If one considers the accumulations of the
guilty party to be adequate compensation for a particular victim who
suffered an injustice, this may be insufficient because the victim perhaps
could have accumulated much more if he had not suffered an injustice
in the first place. The "historical shadow" of the Lockean proviso 75 may
come into effect thereby rendering initial just acquisitions unjust, and so
on. These considerations are extensive and Nozick's failure to consider
them given the importance of rectification in determining justice in acquisition, transfer, and entitlement has serious implications for his theory of justice in holdings. In order to illustrate the difficulties inherent
in Nozick's principle of rectification, it is useful to consider a movie
analogy developed by Lawrence Davis:
Pretend that our lives are taking place in a movie projected on a screen
with many, many projections pointed at it. Project the movie we are
in until a frame containing an injustice is projected. At that frame,
turn off the present projector and turn on the projector containing the
most likely movie of our lives up to this point with the injustice writ75 See supra note 72.
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DWORKIN, NOZICK & POSNER
ten out of the script. Run that projector, starting from the frame at
which the first movie was stopped. Continue projecting until a frame
containing an injustice is projected, or until a frame depicting the
present is projected. If a frame containing an injustice is projected,
stop the projector and turn on the projector containing the most likely
movie of our lives up to that point, with the injustice written out of
the script. Run this projector from the frame at which the other was
stopped. Continue in this way until a frame depicting the present is
projected. Stop the projector at that frame, make a list of who has
what, and realize the distribution of goods in that list. Now a just
distribution has been arrived at and the effects of all previous injustices
have been wiped out.76
Further implications of this analogy are that this process would
have to start all over again if a new injustice occurred or if a frame
depicting an injustice was overlooked. Furthermore, over time, some
actors may not exist and may not come into existence and this adds
complexity to the issues of who warrants compensation. The movie
analogy provides an illustration of the difficulties in determining past
injustices, the effects of past injustices, and the correct compensatory
procedures for rectifying such injustices. No doubt reality, with many
actors, lengthy history, and complicated compensation solutions, will
involve much more complex required judgments than even the movie
analogy can allow us to imagine.
Given the likely imperfections associated with such a system, it
may be morally necessary to provide all individuals with at least sustenance and opportunity, which are not guaranteed in Nozick's minimal
state. This is because there are likely injustices that have occurred, that
have not been recognized, as well as inadequate compensations that may
have had effects not just on individuals, but even on large groups and
potentially all of society. The implication is that, given an undeveloped 77 and likely imperfect system of rectification that is needed to legitimize acquisition, transfer, and holdings, it is unwarranted to allow
(perhaps many) individuals to go unnourished and uneducated just because generally strong conclusions have been made regarding historical
76 Lawrence Davis, Nozick's Entitlement Theory, in READING NoZICK: CRITICAL STUDIES
ON NOZICK's ANARCHY, STATE, AND UTOPIA
77 NOZICK,
ASU, supra note 5, at 152-53.
344, 348-49 (Jeffrey Paul ed., 1982).
58
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entitlement without fully legitimizing the very principles on which entitlement is founded.7 8
Second, added to this difficulty is the likelihood that the legal system in Nozick's minimal state is susceptible to extensive manipulation
because, provided there is a market for legal representation, those with
resources can (and potentially have great motivation to) purchase legal
representation when confronted with accusations concerning the justice
of their holdings. Central to the progression from the ultra-minimal to
the minimal state, for Nozick, is that all (including those unable to afford it) will be provided with the protective apparatus of the minimal
state. This protection must encompass the ability of all, including the
poor, to contest injustices and seek rectification. 79 Such rectification
and resultant compensation may be a life and death matter for a poor
person who does not have the means of sustenance. The ability of the
rich to provide themselves with legal representation while the poor may
be unable to afford any representation means that, when there are rectification cases raised, the poor will be more likely to lose, provided that
legal representation has an effect on the outcomes of legal cases. 80 This
is likely to result in nonrectified unjust acquisitions and transfers with
the consequence that some wealthy people will be able to hold on to
78
Nozick recognizes this problem, to a degree, and sanctions Rawlsian redistribution when
we "are lacking much historical information." NozcK, ASU, supra note 5, at 234. For the
development of Rawls's difference principle of redistribution, see JOHN RAwLs, A THEORY OF
JUSTICE 83, 151, 285 (1971) [hereinafter RAWLS, A THEORY OF JUSTICE]. However, there may
be more than Rawlsian redistribution, which primarily helps the worse-off, warranted, and, even
if there is historical information, effects of past injustices and remedial compensations may be
very difficult to assess. This is telling. Just as Dworkin, in effect, throws his theory of equality
of resources into doubt when he accepts that considerations such as privacy and efficiency may
trump equality in real life, Nozick is recognizing likely imperfections in his legal theory and has
to resort to (conditional) acceptance of his chief rival's egalitarian theory.
79 Cf Williams, supra note 63, at 98 (arguing that in many societies formal legal equality is
of limited importance where legal representation in needed to enforce such formal equality); Kai
Nielsen, Radical Welfare Egalitarianism, in EQUALITY: SELECTED READINGS 204, 205 (Louis P.
Pojman & Robert Westmoreland eds., 1997) (arguing that formal equality is necessary for legal
equality but "not nearly sufficient").
80 Cf Peter Arenella, People v. Simpson: Perspectives on the Implicationsfor the CriminalJustice
System, 69 S. CAL. L. REv. 1233, 1234 (1996)
Lawyers control adversarial trials. They decide what evidence to present and how to
massage it into a story of guilt, innocence, or reasonable doubt. In such a lawyerdominated system, the trial's outcome may hinge on which side has the superior resources to pay for the best investigators, experts, and counsel. Money can have a
greater impact on the verdict than the 'facts' because it dictates how those 'facts' are
transformed into legally admissible and persuasive evidence.
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DWORKIN, NOZICK & POSNER
holdings that they are not entitled to, while some poor people may be
forced to perish, even though they were entitled to holdings, because
they were unable to afford legal representation and the means of
rectification.
Indeed some poor people may, in many cases, be deterred from
seeking rectification because they will be aware that when they confront
a wealthier person, with the ability to purchase legal representation, they
will likely lose irrespective of the merits of their case. The undeveloped
nature of the principle of rectification may allow Nozick to respond to
this criticism by suggesting that the protection of the minimal state
would ensure the provision of legal representation for the poor. This is
a possibility but, given Nozick's insistence that individuals should be
allowed to dispose of their resources as they please, he is unlikely to be
able to limit legal expenditure so the wealthy can always purchase more
representation than the state allocates and, therefore, use their (possibly
unjustly held) resources to tilt legal verdicts in their favor.
Third, the rectification principle may lead to excessive legal claims
in the minimal state. In the absence of any welfare system, the claims of
the poor become potentially life and death matters and the minimal
state cannot just dismiss claims for the sake of expediency if it is to
provide the universal protection on which its very justification is based.
So, legal questions that would be unlikely to come to court in most realworld courts may have to be considered, and considered immediately so
that people do not die, when individuals' entitlements to a loaf of bread,
a pint of water, and so on, are contested. The failure of the minimal
state to address such claims is likely to lead to large amounts of lawlessness because the hungry have not only Hobbesian rights to protect
themselves against death, they have Nozickian state of nature rights to
exact compensation if the minimal state fails them by affording them
inadequate or unfair protection procedures. 81 However, if the minimal
state is to properly address such concerns, which it must do if it is to
retain its legitimacy, it will see a bloating in its size either because it
allows equal access to rectification entailing a ballooning court system or
because it grants certain welfare levels for expediency's sake so as to
81 But see AMARTYA SEN, IDENTITY AND VIOLENCE:
THE ILLUSION OF DESTINY 143
(2006) (arguing that the very poor may not disobey the law and revolt because "a starving
wretch can be too frail and too dejected to fight and battle, and even to protest and holler. It is
thus not surprising that often enough intense and widespread suffering and misery have been
accompanied by unusual peace and silence").
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avoid a ballooning court system. But, alas for Nozick, such redistribution to ensure certain welfare levels will lead to something beyond his
minimal state.
Fourth, the existence of the state gives the wealthy their ownership
in property and protects that ownership. If the wealthy accept the existence of the government for reasons of protection, they are likely, if
consistent, compelled to accept other limited governmental functions.
This is because the existence of the government is what gives the wealthy
their possessions and it will most likely be the case that, even given some
redistributive taxation, "they are bound to the 'commonwealth' by
chains of gold they should be happy to leave in place."18 2 Indeed, the
wealthy will likely demand more than the protection that a minimal
state would offer. This would lead to an expansion of the minimal state
to sustain them in their comfort. And, if they accept the expansion of
the minimal state for that end, it would be inconsistent and morally
questionable8 3 not to allow at least some role to help the very poor in
their misery. A Norberto Bobbio dialectic is illuminating in this
context:
[T]he citizen who through active participation always asks for greater
protection from the state through the request for protection strengthens the state which the citizen wants to control but which ends up
becoming his or her master.84
It is almost a necessary truth that the wealthy in the minimal state
will demand more protection because they have more to protect. Bobbio refers to demanding in the sense of actual participation in the political process through such mechanisms, one would imagine, as running
for office, lobbying, and so on. Demanding more protection sees the
size of the minimal state expand, even if the wealthy do not usually want
to see the state expand for nonprotective purposes such as redistributive
taxation to help the needy. There is both dialectic and an inconsistency
here. Given the possibility of the wealthy to successfully demand more
82 Michael Davis, Nozick's Argument for the Legitimacy ofthe Welfare State, in EQUALITY AND
LIBERTY: ANALYZING RAWLS AND NOZICK 276, 293 (J. Angelo Corlett ed., 1991).
83 See KANT, GROUNDWORK, supra note 71, at 88 ("Act only on that maxim through which
you can at the same time will that it should become a universal law." This is the first formulation of his categorical imperative).
84 NORBERTO BOBBIO, DEMOCRACY AND DICTATORSHIP:
STATE POWER 42-43 (Peter Kennealy trans., 1989).
THE NATURE AND LIMITS OF
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DWORKIN, NOZICK & POSNER
protection, it may be possible for the poor to expand the scope of protection available to them and argue that state provision of certain lifesustaining goods for those unable to provide for themselves should constitute a form of protection in the expanded sense of the notion.8 5
Furthermore, a continuing acceptance of Nozick's interpretation of
the Lockean Proviso has serious implications for libertarianism.8 6 Gillian Brock argues this point forcefully:
[B]ecause restraints on initial acquisition permanently track property
rights, no account of property rights, more generally, that had any
pretensions to defensibility could allow some to have unconditional
rights to property in cases where others' survival is not only endangered, but rendered impossible ....
Clearly then, the libertarian the-
sis that any redistribution to meet needs is unjust, is false.
Redistribution to help those in need is not necessarily unjust. Quite
the contrary: it is frequently a necessary condition for our retaining
any defensible property rights at all. 87
As it stands, Nozick's legal theory cannot be accepted because it is
undeveloped and prone to imperfections that undermine his libertarian
theory. Those imperfections, accompanied by a likely burgeoning legal
system in his minimal state, may provide necessary backdoor legitimization of certain welfare levels, resulting in a minimal state that no longer
remains minimal in the sense that Nozick envisioned. Additionally, requests for greater protection, the state's protection of the wealthy, moral
consideration of how the very poor as humans can be treated, and a
proper interpretation of Nozick's proviso on acquisition may lead to an
85
Cf David Wood, Nozick' Justification of the Minimal State, 88 ETHICs 260, 262 (April
1978). Wood argues that the compensation associated with the transition from the ultra-minimal state can be seen as buying off those people who cannot afford or do not want the protection of the minimal state. The poor and go-it-alone anarchists could argue that they are owed
further compensation for laying down arms and not enforcing rights in a biased manner against
members of the dominant protective agency. They may get more than just protection by enforcing rights in such a way and may not be compelled to accept only the protection of the minimal
state; they may demand more with the consequence that the minimal state could become a
more-than-minimal state. One can legitimately suggest that if loners and poor nonmembers
"have such nuisance power, why should they not bargain for more than protection?"
86 1 argued this point myself in some detail in my M. Phil. thesis, Sustenance, Opportunity,
and the Minimal State: Learningfrom Nozick's Libertarianism(2006) (unpublished, The London
School of Economics). However, because this Article does not deal with this matter in detail,
Gillian Brock's eloquent explanation is preferable.
87 Gillian Brock, Is Redistribution to Help the Needy Unjust?, 55 ANALYsIS 50, 57-58 (January
1995).
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expansion of the minimal state. Nozick could provide arguments to
cope with these assessments because his principle of rectification remained undeveloped. However, to do so he would have to abandon
much of the rhetoric, at least, of his minimal state libertarianism.
Before finishing this section, two further libertarian theorists will
be considered and some initial criticisms will be outlined. Randy E.
Barnett argues that Nozick has not justified the establishment of the
state. 88 Like Nozick, Barnett asserts that liberty, in the sense of nonin' 89
terference by the state, is essential to promote "human flourishing.
However, unlike Nozick, who argues that the state has a monopoly over
the use of force and, therefore, has a monopoly over the legal system in
the state, Barnett argues that "a polycentric legal order can contain multiple legal systems without a hierarchical government to oversee the interaction of these legal systems." 9 ' Barnett is correct that Nozick has
difficulty justifying the existence of his state once that state evolves
through the multistage invisible hand process from anarchy to the minimal state, especially because the real state only protects "procedural"
rights. Accordingly, Nozick must argue further that something that
evolves through the invisible hand process and does not violate rights is
itself just. 91 The state requires further assessment based on the way in
which it implements Nozickian rights once the minimal state has come
into being. 92 However, because of lingering Hobbesian sentiments, the
practicality of a truly polycentric legal order is doubtful, especially when
there are conflicts between legal orders. 93 Libertarianism generally is a
88 Randy E. Barnett, Whither Anarchy? Has Robert Nozick Justified the State?, I J.
OF
LIBER-
STUD. 15, 21 (1977).
89 Randy E. Barnett & Douglas B. Rasmussen, The Right to Liberty in a Good Society, 69
TARIAN
FoRDHAM L. REv. 1603, 1606-11 (2001). Rasmussen is noted as coauthor but the main body
of the text will attribute the arguments to Barnett only.
90 Id. at 1611.
91 See Charles Sayward & Wayne Wasserman, Has Nozick Justified the State?, in EQUALITY
AND LIBERTY: ANALYZING RAWLS AND NOZICK 261, 267 (J. Angelo Corlett ed., 1991) (arguing
that just because a state evolves from a state of nature without violating rights does not mean
that the state itself does not violate rights).
92 Ellen Frankel Paul, The Time-Frame Theory of Government Legitimacy, in READING
NoziCK: CRITICAL STUDIES ON NoziCK's ANARCHY, STATE, AND UTOPIA 270, 348-49 (Jeffrey
Paul ed., 1982).
93 See generally THOMAS HOBBE, LEVIATHAN pt. 2 (J. C. A. Gaskin, ed., 1996) (1651)
(arguing that a single strong sovereign is required for stability and to ensure that there is not a
continual struggle for power among different self-interested individuals and alliances of individuals). There is a degree of dual-sovereignty in the U.S. and the European Court of Human
Rights sits alongside sovereign legal systems in the E.U. but in those cases there is a largely
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DWORKIN, NOZICK, & POSNER
statist theory, albeit minimal statist. Barnett describes himself as a libertarian, but his stance seems inconsistent with libertarianism. If he is a
libertarian, he must ask himself why a polycentric legal order could
work but individual enforcement of rights could not work in Nozick's
state of nature. However, this only results in Barnett having to answer
his own question before he asks it of others. Thus, whither anarchy?
Richard A. Epstein, another libertarian legal academic, attempts to
resolve the problem of the failure of Nozick's theory to provide for public goods. 94 Epstein contends that Nozick is wrong to look only at the
burdens and never at the benefits of enforced taxation. In order to solve
the public goods problem, Epstein endorses
some Rousseauian notion that individuals may be forced to be free...
to allow them to move to higher levels of utility (albeit with lower
levels of political freedom) than they could achieve through voluntary
transactions in light of the well-known coordination problems that
arise in the provision of public goods . . . . Clearly the domain of
forced exchanges should not be infinite ....9'
Epstein seeks to soften the blow by endorsing a "flat or proportionate tax, whose form eliminates partisan battles over the steepness of any
progressive tax." 96 The main basis for Epstein's so-called forced exchanges is that they provide a Pareto optimal improvement. 97 Like Barnett, Epstein considers himself a libertarian. And like Barnett, his
viewpoints, while attractive to nonlibertarians, are seemingly inconsistent with libertarianism. The domain of forced exchanges, for Epstein,
accepted hierarchical structure which, I believe, is different to what Barnett is suggesting. He
seems to endorse a step back from the minimal state to mutual protection associations. Market
compensatory systems and other devices could be developed that may be able to make such
schemes at least theoretically possible but one always has to beware of Hobbes' views in this
context.
94 Richard A. Epstein, One Step Beyond Nozick "Minimal State: The Role ofForcedExchanges
in Political Theory, in NATURAL RiGHTS LIBERALISM FROM LOCKE TO NOZICK: ESSAYS IN
HONOR OF ROBERT NOZICK 286, 293 (Ellen Frankel Paul, Fred D. Miller, Jr. & Jeffery Paul
eds., 2005).
95 Epstein, supra note 94, at 293.
96 Id. at 295.
97 Id. at 312. See also THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 59 (Peter Newman ed., 1998) (giving a detailed account of Pareto Optimality, which is simply a
situation which exists when economic resources and output in an economy have been allocated
in such a way that no one can be made better off without sacrificing the well-being of at least
one person).
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cannot be infinite and should provide a Pareto optimal improvement.
This leaves an enormous door open for redistributionist programs, such
as a universal education provision,9 8 universal healthcare provision,9 9 efficiency wage effect arguments for minimum wage legislation and increases, 100 and so on. Prospective Pareto advancement arguments can
always be made to promote redistribution; they would go along the lines
of arguing that the scrooge capitalist would always do better if he would
pay more taxes or wages so that his workers could be efficient because of
education, healthcare, and decent wages. However, the key argument
that underlies libertarianism is that people cannot be used as means to
promote ends that they are unwilling, absent forced transactions, to
contribute to. So, like Barnett, Epstein cannot endorse the arguments
that he endorses without being inconsistent. His assertion that tax
should be flat or proportionate also has little appeal. For the poor, a flat
tax may not be possible and even a proportionate tax for the very poor is
unappealing when they have more pressing concerns than public goods,
such as finding food. It is also likely that the wealthy will be unimpressed, since they will still feel the sting of taxation and its effects on
their life plans. They will have to contribute significant amounts to public goods fundraising if it is to be effective, because the poor will have
few, if any, funds to contribute.
As it stands, Nozick's theory cannot provide a basis for a legal system. It is prone to imperfection, exploitation, and inefficiency. Barnett
and Epstein have done little to make libertarianism more appealing and,
by accepting Pareto advancement as a justification for forced taxation,
Epstein may have, in effect, abandoned libertarianism and accepted a
theory that bears significant resemblance to the economic theory of law.
98
See BULY A.
CARDAK,
Education Choice, Neoclassical Growth, and Class Structure, 56 Ox-
FORD ECON. PAPERS 643, 643-44 (2004) (arguing that universal public education offers steady
superior state human capital which presumably could enhance societal wealth and other factors
that contribute to Pareto advancements).
99 See Madison Powers & Ruth Faden, Inequalities in Health, Inequalities in Health Care:
Four Generations of Discussion about Justice and Cost-Effectiveness Analysis, 10 KENNEDY INST.
ETHICS J. 109, 111 (2000) (arguing that universal healthcare provision leads to Pareto advancements in society).
100 See George Stigler, The Economics ofMinimum Wage Legislation, 36 Am. ECON. REv. 358,
360 (1946) (discussing efficiency wage effects where employers achieve efficiency effects by increasing workers' wages).
20091
DWORKIN, NOZICK, 6- POSNER
III.
LAw & ECONOMICS
The theory of law and economics can be surveyed by assessing several arguments of Richard A. Posner and developments in the theory
related to Posner. Posner discusses the differing values that different
individuals associate with different objects.1 ' Because people attach
different values to things and therefore derive different utility from different things, Posner rejects the normal utility maximizing theory underlying Pareto optimality which accounts for an upward shift in welfare
or utility in society."0 2 Posner argues that because one is never certain of
the disutility caused to nonbeneficiaries following a move to a Paretosuperior level, one cannot be sure that that new level is actually superior.'0 3 Posner believes that this difficulty and other difficulties associated with computing total welfare mean instead that the more tangible
goal of wealth maximization should be prescribed. 10 4 Posner endorses
this wealth-maximizing aim as the efficient and proper way that judges
should decide common law cases. 10 5 As such, the role of law and economics is to provide a basis for legal decision making, which maximizes
wealth, based on the assumption that "man is a rational maximizer of
his ends in life, his satisfactions - what we shall call his 'self-inter101
RicHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 130 (4th ed. 1992) [hereinafter
POSNER, ECONOMIC ANALYSIS
102
OF LAW].
Richard A. Posner, The Ethical and PoliticalBasis of the Efficiency Norm in Common Law
Adjudication, 8 HOFSTRA L. REv. 487, 491 (1979-1980) [hereinafter Posner, Ethicaland Political Basis].
103 Id.
104
Id. This is the concept of Kaldor-Hicks Optimality or Potential Pareto Superiority used
to overcome normal Pareto advancement problems that Posner discusses. Cf Palsgraf v. Long
Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928) (discussing the concept of maximizing
welfare in society).
105 Posner, Ethical and Political Basis, supra note 102, at 502-03. Posner also justifies his
wealth-maximization theory not only by its prima facie relationship to simplified utilitarianism
but also by what he says "economists call ex ante compensation." Id. at 492. This argument is
difficult to understand. It is along the lines of: by taking risk, we accept the prospect of loss and
therefore consent to that loss. This can be aggregated, according to Posner's belief. Thus, if
society's wealth is maximized, we consent to that maximization in the hope that we will be part
of that wealth increase even if we are not. Posner analogizes this to the purchase of lottery
tickets. The concept is undeveloped and unclear. However, on its face, it seems dubious, especially if certain individuals do not consent to a certain risk and do not necessarily benefit from
the resultant outcome. See Ronald Dworkin, Why Efficiency? A Response to Professors Calabresi
and Posner, 8 HOSTRA L. REV. 563, 574-78 (1979-1980) (rejecting Posner's ex ante compensation argument). This section will not discuss this concept of ex ante compensation as an ad hoc
justification for wealth maximization further.
66
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est. ' ' 0 6 In addition, Posner rejects moral theory as a basis for legal
theory.10 7 Posner directs his primary hostility towards academic moralists in the U.S. and concludes both that morality is local and that different metaethical viewpoints as to what is moral illustrate that morality is
relative in nature.1 °8 As such, moral theory cannot provide an objective
foundation for legal theory.10 9
This final section assesses three broad important areas common in
the vast literature on law and economics. First, this section will discuss
morality and its foundational basis for legal theory. This section will
argue that Posner's rejection of morality, based on his account of moral
relativism, is far too quick and fundamentally flawed. Also, this section
will account for practical considerations in legal theory and argue that
people expect a legal theory to have at least some moral foundations. As
such, the economic theory of law is vulnerable to many of the criticisms
that Posner and others level at those who see moral theory as an important factor in legal decision making. This vulnerability is apparent because Posner's theory may also be unrealistic and not practical. The
discussion of morality will be rounded out by assessing the renewed focus on welfare maximization theory, which accepts limited forms of
rights. Such analyses will be compared to legal theory which argues that
rights are interests that people have and, as such, should generally be
respected. This section concludes by arguing that in certain situations,
rights are an essential component of a legitimate legal system.
Second, this section will account for the economic theory of law as
part of economic theory in general. In addition, this section will argue
that Posner's wealth-maximizing theory, which he seems to be in the
process of abandoning as a normative theory to guide legal decision
making,110 begs numerous questions and fails to solve many of the diffi106
107
supra note 101, at 3.
See generally Richard A. Posner, The ProblematicsofMoral and Legal Theory, 111
POSNER, ECONOMIC ANALYSIS OF LAW,
H
R. L.
REV. 1637 (1998) [hereinafter Posner, Problematics] (Posner expressing his "visceral dislike" of
moral theory and rejecting moral theory as a basis for legal decision making).
108 Id. at 1656-57.
109 Id. at 1709.
110 See id.at 1670 (stating that economists "often under the guise of utilitarianism, [argue]
that the goal of a society should be to maximize average or total utility, or wealth, or equality as a
means toward maximizing utility, or freedom, or some combination of these goods. These are
doomed efforts") (emphasis added). It would seem that for Posner wealth maximization can still
be endorsed as a pragmatic fall-back position because of the failure of other normative theories'
ability to be universally applied. Therefore, aspects of his wealth maximization theory as a basis
for legal adjudication remain worthy of analysis.
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culties that he associates with welfare maximizing economic theories.
This section will assess the implications of Posner's rationality-based economics when compared with behavioral economics as part of a wider
economic theory. This section will argue that there are problems associated with the methodology of classic law and economics and that these
problems may be better assessed by abandoning Posner's entrenched account of "theory."
Third, this section will account for distributional problems which
affect both Posner's theory of law and economics and economics generally. It will discuss the concept of capture, according to which powerful
economic agents in society exert control over government and government agencies. This section will also question ownership assumptions,
implicit but unaccounted for, in law and economics. The realism associated with certain judges as guardians of efficiency will be examined as
will their failure to fully account for efficiency in a broader context
when it fails to suit their ends. Marxian implications of the economic
theory of law will be briefly considered.
Finally, this section will reexamine the role of efficiency in political
and legal theory. The section will argue that efficiency needs to be considered and often has implicit importance to theorists who fail to explicitly account for efficiency in their broader theories.
A.
Morality, Practicality,and Welfare
i.
Morality
Posner argues that "moral theory does not provide a solid basis for
moral judgments, let alone legal ones."11 Consequently, moral philosophers lack "the tools for resolving moral disagreement. They cannot
help judges. Judges will have to look elsewhere .
"..."112 Essentially, the
existence of so much disagreement among both moral philosophers and
different people around the world is sufficient proof for Posner that morality is relative.1 13 Nevertheless, Posner asserts, somewhat confusingly,
that he is "not a moral skeptic, that is, one who believes that moral truth
is unknowable." '14 He argues that the classics of moral philosophy "are
valuable. But they do not contain answers to, or methods for answer111 Id. at 1638.
112
113
114
Id. at 1709.
Id. at 1641-42.
Id. at 1642.
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[
ing, contemporary moral questions."1" 5 He announces that "there is no
good evidence that moral philosophers or their students behave more
morally than other members of the educated class ....
,"116 However,
Posner does see a role for moral philosophers - they can somehow work
on the Posnerian premise that "the most important function of moral
1 '1 7
theory may be to dispel errors in moral reasoning."
Posner argues that slavery and racial segregation cannot be termed
immoral.1" 8 Instead, slavery was abolished, according to Posner, "because we no longer have an economy in which slavery would be productive . . "19 Posner contends that the U.S. Supreme Court in Brown v.
Board of Education12 0 sought to end school segregation not because segregation was immoral but because "education is terribly important to
people in the modern world and that psychologists had found that seg12 1
regation impaired the self-esteem and educational success of blacks."
Furthermore, Posner states that "there is no moral progress." 122 He
argues that the genocidal policies of Hitler, Stalin, and Pol Pot were not
adaptive to the needs of their societies and are, therefore, justifiably condemned.1 23 On the other hand, Posner argues that the "genocidal policies that the United States pursued against the American Indians were
adaptive and so receive less criticism, especially as we are the beneficiaries of such policies.1' 24 This leads Posner to conclude: "Had Hitler
or Stalin succeeded in their projects, our moral beliefs would probably
be different (we would go around saying things like 'You can't make an
omelette without breaking eggs'); and they failed not because the
1 25
projects were immoral, but because the projects were unsound."
Posner's paper is so full of holes that it was easy for his rival, Ronald Dworkin, to swat it away. 1 2 6 It is not difficult for Dworkin to con115
Id. at 1672.
Id. at 1682.
Id. at 1648.
118 Id. at 1679, 1703-04.
119 Id. at 1679.
120 Brown v. Bd. of Educ., 347 U.S. 483 (1954).
116
117
121
122
123
124
125
Posner, Problematics, supra note 107, at 1703-04.
Id. at 1653.
Id. at 1652.
Id.
Id. at 1654.
See Ronald Dworkin, Darwin's New Bulldog, in RONALD DWORKIN, JUSTICE IN ROBES
75, 75-104 (2006) [hereinafter Dworkin, Darwin's New Bulldog] (providing a detailed critique
of Posner's arguments).
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clude that "Posner is himself ruled by an inarticulate, subterranean,
unattractive moral faith." 127 Dworkin calls this moral faith "Darwinian
pragmatism." 128 Dworkin's accusation is not unfounded, but Posner's
beliefs are hardly subterranean. There is hardly a page in The Problematics ofMoral and Legal Theory129 where Posner does not make at least an
implicit reference to evolution, biology, survival, Nietzsche, and Oliver
Wendell Holmes. 130 Dworkin is correct to point out that "judges face
moral issues, and railing at moral theory can't change those issues into
' 13 1
mathematical or scientific ones."
This subsection assesses in more detail, however, Posner's claim
from perceived differences in morality that morality is fully relative to
each individual situation. Internal inconsistencies in Posner's theory
will be pointed out. Several issues regarding his "Darwinian pragmatism" will also be assessed. There will then be a discussion of some
practical issues in legal decision-making procedures. Finally, this subsection will assess the present state of play with regard to rights-based
versus welfare-based theories of morality and the way in which such
theories are approaching overlapping consensus among legal scholars.
Posner's "strong thesis" of moral relativism holds that "moral theory does not provide a solid basis for moral judgments." 132 In addition,
because there is so much disagreement about what is moral, Posner asserts that "morality is local. There are no interesting moral univer127
Id. at 94.
128
Id. at 92.
129
Posner, Problematics, supra note 107.
130
See
JEFFREY ROSEN, THE SUPREME COURT:
THE PERSONALITIES AND RIVALRIES THAT
89-90 (2006)
Holmes took from the [Civil War] battlefield a Darwinian affinity for natural selection, and insisted that the common law . . . reflected, like all law, the will of forces
that were dominant at any point in history. Law, therefore, was both a cause and an
effect of natural selection. Holmes insisted that power and class prejudice, not abstract principles of natural justice or previous legal precedents, determined legal development, and "the prophecies of what courts will do in fact, and nothing more
pretentious, are what I mean by law."
DEFINED AMERICA
Id. (quoting Oliver Wendell Homes, Jr., The Path of the Law, 10 HARv. L. REv. 457, 461
(1897)).
131 Dworkin, Darwin's New Bulldog, supra note 126, at 88. See id. at 103 ("Posner's settled
recommendation is a formula not for pragmatic decision but for a parody of pragmatism, like
asking a doctor to choose between alternate medicines for a patient by comparing their price,
availability, and ease of administration without asking which will cure and which will kill
him.").
132 Posner, Problematics, supra note 107, at 1639.
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sals."' 133 A critic could easily seize upon this statement and argue that
this is fine. If morality is local, there is still a local morality. If there is a
local morality, then it must be to some extent agreed upon. As such,
there is no reason to reject local morality as a basis for local legal practice. This is problematic for Posner because he states that he is "not a
moral skeptic"' 134 despite what many of his arguments could lead his
reader to believe. Thus, if there is local morality and legal questions
raise moral issues, as surely they sometimes do, then the reader is uncertain as to why Posner embarks upon his project to refute academic moralism for which he expresses "visceral dislike."1 35 Indeed, if academic
moralists, such as John Rawls, were to accept that their projects were
local rather than trying to solve universal ethical issues, it would seem
that they would be able to sidestep much, if not all, of Posner's visceral
critique. I3 And Posner's arguments directed at academic moralists are
all the more confusing because he says that just as the function of philosophy generally is to dispel philosophical errors, so the purpose of
137
moral philosophy should also be to dispel errors in moral reasoning.
It would seem that, despite his dislike of academic moralists, Posner has
left open a vast terrain in which such people can continue to practice
133 Id.at 1640.
134 Id. at 1643.
135
Id. at 1640.
136
See John Rawls, Kantian Constructivism in Moral Theory, 77J. PHIL. 515, 518-19 (1980)
[W]e are not trying to find a conception of justice suitable for all societies regardless
of their particular social or historical circumstances .... We look to ourselves and to
our future, and reflect upon our disputes since, let's say, the Declaration of Independence. How far the conclusions we reach are of interest in a wider context is a sepaWhat justifies a conception of justice is not its being true to an
rate question ....
order antecedent to and given to us, but its congruence with our deeper understanding of ourselves and our aspirations, and our realization that, given our history and the
traditions embedded in our public life, it is the most reasonable doctrine for us.
Id. But see Jeremy Waldron, The Cosmopolitan Alternative, 25 U. MICH. J.L. REFORM 751, 775
(1991-1992)
There are reasons why Rawls's work was and is studied in New Zealand and in Britain
as well as in Cambridge, Massachusetts, why it has been translated into French and
Italian, why it is discussed in Athens and Delhi, Warsaw and Singapore. It is not that
these societies are particularly interested in the dilemmas of American community. It
is rather that all advanced societies share certain general problems about property,
freedom, welfare, and equality, and they are aware of sharing these problems.
Id.
137
Posner, Problematics, supra note 107, at 1648.
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moralism in "a comfortable bourgeois life, with maybe a touch of the
1 38
bohemian."
The purpose of this section is not solely to defend moral philosophers. However, Posner has failed to land any kind of knockout blow.
The more interesting question is whether Posner is correct in going from
the metaethical claim that people have different ethical beliefs to the
conclusion that there are no moral truths or best moral practices in the
way that there are scientific truths.1 3 9 In this respect, Posner's arguments fail. The simple response to Posner is as follows:
(1) "[S]ome of the striking differences in moral belief across societies may not be rooted in differences in fundamental values
but in the fact that these values may have to be implemented
in different ways given the varying conditions that obtain
across societies." 140
(2)
(3)
"[There are] special difficulties [including inter alia self-interest and the complexity of human nature] of acquiring knowledge of subjects that pertain to moral knowledge."' 4 ' These
problems may not exist to the same degree in scientific
inquiry.
"The simple fact of diversity in belief is no disproof of the
possibility that there are some beliefs better to have than
others because they are truer or more justified than the
rest .... The mere existence of deep and wide disagreements
in ethics, therefore, does not disprove the possibility that
moral judgments can be objectively correct or incorrect about
certain facts. Moral relativists must chart some other more
complicated path from the existence of diversity to the conclusion that there is no single true or most justified
morality."' 4 2
138 Id. at 1688.
139
This issue is important because (a degree of) moral relativism (and skepticism) forms the
basis of many legal theories such as positivism and pragmatism, as well as the economic theory
of law. As such, the current analysis could have some applicability to theories beyond those of
Posner.
140 David Wong, Relativism, in COMPANION TO ETHICS 442, 444-45 (Peter Singer ed.,
1993).
141
142
Id. at 444.
Id. at 444-45. In the end, Wong accepts a moderate form of relativism based on per-
ceived ethical divergence in different parts of the world. However, this may not be relativism
but a form of pluralism. There can be first order ethical claims such as a right to life once alive
and assuming that one is innocent of any crime. These first order claims can be universal and,
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Differences in condition and the complexity of human nature may
account for diversity in morality. The metaethical observation that
there is diversity does not, by itself, mean that there is no better general
morality. Wong gives two illustrative examples. He argues that in a
society where there is a shortage of men (because men are killing each
other in warfare), polygamy may be required, even if people generally
believe that monogamous marriage is morally preferable.' 4 3 Morality
does not have to take a fixed rigid universal form, as Posner assumes,
and can be altered to cope with societal change. In this regard, morality
can be seen as being able to cope with Posner's Darwinian notions without contradiction. Similarly:
If half the world still believed that the sun, the moon, and the planets
revolved around the earth that would be no disproof of the possibility
of a unique truth about the structure of the universe. Diversity in
belief, after all, may result from varying degrees of wisdom. Or it may
be that different people have their own perspectives of the truth, each
44
perspective being distorted in its own way.'
The fact that there are different moral rules does not mean that
there are not better moral rules. Rules may need to be changed to cope
with particular circumstances and there may also be questions as to
stages of development of society and persistent traditions, which remain
despite being, in some important sense, wrong. In the end, Posner
backs into moral assertions although he cloaks them in different language. He would outlaw suttee because it is disgusting.1 45 Thus,
"squeamishness is an important factor in morality."' 4 6 Posner also argues that when genocide is not adaptive (Hitler's and Stalin's, for example), it is more worthy of criticism, whereas when genocide is adaptive
(Native Americans), it is worthy of less criticism.14 7 But this implies a
where particular cultures do not follow them, we can claim that practices to the contrary are
immoral. On the other hand, there are second order moral claims and these claims may be
pluralistic in nature. This does not mean that they are relativistic but merely practiced in different ways in different cultures. So long as these practices are not harmful in an illiberal sense,
they should be tolerated. Consequently, tolerance for nonharmful practices becomes a value in
itself. This point was initially suggested in a slightly modified form by Chaim Gans.
143
144
145
146
147
Id. at 445.
Id. at 444.
Posner, Problematics, supra note 107, at 1644.
Id. at 1676.
Id. at 1652.
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DWORKIN, NOZICK & POSNER
moral judgment - genocide is less justifiable when it is not adaptive. In
addition, if morality is truly relative, Hitler could make an argument
that his killing of the Jews was adaptive' 4 8 and there would seem to be
very little that Posner could do to counter those arguments.
In a similar vein, Posner's arguments regarding racial segregation in
schools also fail. Posner contends that the U.S. Supreme Court in
Brown v. Board of Education 4 9 sought to end school segregation not
because segregation was immoral but because the Court reasoned that
"education is terribly important to people in the modern world and
that
psychologists had found that segregation impaired the self-esteem and
educational success of blacks." 15 But, this argument alone cannot account for an end to segregation unless there is some implied moralism,
even if not stated explicitly by the Court. "Education is terribly important" may have been empirically true, but to get to "blacks are entitled
to equal education" requires a moral step. That step is that "blacks
ought to have equal education." Likewise, the empirical observation
that blacks lacked self-esteem and were comparatively unsuccessful in
education cannot, by itself, form the basis for an end to segregation. To
complete the loop, one must accept or argue that there is something
wrong with this state of affairs that requires remedy.
Posner also claims that "there is no good evidence that moral philosophers or their students behave more morally than other members of
the educated class .... ,"51 This uncited statement typifies Posner's
muddled logic. He argues that there "are no interesting moral univer'
sals." 152
Thus, it is difficult to see how he can make any statement
regarding whether or not moral philosophers act more or less morally
than others without either assuming some form of morality or begging a
multitude of questions. It seems that Posner's critique of morality, although forceful in rhetoric, does not get off the starting blocks as a true
rejection of moral theory. As such, it cannot help legal theory because
148 He could, for example, argue that Jews were taking German jobs and crowding out nonJewish Germans in particular sectors of the economy. I don't for a moment mean to justify
Hitler. I merely wish to show that Posner has no effective way of criticizing any genocide unless
he accepts some form of moralism.
149 Brown v. Bd. of Educ., 347 U.S. 483 (1954).
150
Posner, Problematics, supra note 107, at 1703-04.
151 Id. at 1682.
152
Id. at 1640.
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lawyers and judges face moral questions at certain times. 5 3 Posner
seems to have accepted that his wealth maximization theory to guide
legal adjudication is flawed. 154 Morality also cannot help judges, according Posner.155 He thus seems to have reached some form of strong
legal positivism based on social Darwinism. By itself, Posner's legal theory (or what's left of it) could justify almost any form of strong-arm
authoritarianism. This cannot justify legal obligation. Thus:
What is surely needed in order to make men clear sighted ... is that
they should preserve the sense that the certification of something as
legally valid is not conclusive on the question of obedience, and that,
however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral
156
scrutiny.'
Finally, Posner also faces the most problematic critique of relativism because his relativism is normative. He argues that moral philosophers "cannot help judges. Judges will have to look elsewhere."1 57 This
statement leads to two problems. First, moral argument could just be
an aspect of social Darwinism cloaked in the guise of moralism. I do
not believe that it is, but if it were, Posner could have no basis for rejecting moralism. Indeed, moralism in its present form should be able
to criticize norms in society when they are unjust. This is probably why
Posner reserves his harshest venom for academic moralists, because they
may somehow thwart a Darwinian tendency towards some kind of accepted power-based moralism useful for Posnerian society. Second, Posner's relativism is in a strong sense normative. His argument is that
moralism cannot help judges and judges "will have to look else'
where."158
But why should judges look elsewhere if they are happy and
believe in moralism? Posner's argument must be construed as normative. He is arguing that judges should look elsewhere. Posner believes
that "the most important function of moral theory may be to dispel
153
Lawyers, for example, have a code of ethics that they are required to follow. Wealth
maximization is of no help here and may be counterproductive. Posner's wealth maximization is
for legal decision makers but if lawyers are required to act ethically, why shouldn't other legal
actors be expected to do the same?
157
Posner, Problematics,supra note 107, at 1670.
Id. at 1709.
H.L.A. HART,THE CONCEPT OF LAW 206 (1961) (emphasis added).
Posner, Problematics,supra note 107, at 1709.
158
Id.
154
155
156
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DWORKIN, NOZICK, & POSNER
errors in moral reasoning."1 59 Posner's extreme normative relativism is
easily dispelled using moral reasoning:
The most extreme possible position for the normative relativist is that
no-one should ever pass judgment on others with substantially different values, or try to make them conform to one's own values. Such a
definition of normative relativism ...is an indefensible position. It
requires self-condemnation by those who act according to it. If I pass
judgment on those who pass judgment, I must condemn myself. I am
trying to impose a value... on everyone, when not everyone has that
value, but this is not what I am supposed to being doing under ...
relativism. 160
Posner's rejection of morality is self-contradictory and begs multiple questions. It has large holes that are vulnerable to criticism. In the
end, his criticism of morality and argument that morality has no basis in
legal theory fail because judges face moral questions. Law itself cannot
be justified without some recourse to morality even if that morality is
that we are self-interested and require law only so that we can act as a
community of mutually disinterested Posnerian maximizers.
ii.
Practicality
People in society have notions of fairness which they associate with
morality and people expect the legal system to follow these norms. 61
Posner argues that "no one is going to surrender his moral intuitions to
moral theory; nor should he." 162 The point here is that even if social
norms are misconceived, they still exist. As such, they cannot be ignored in a practical legal theory. Accordingly, law and economics, particularly in the Posnerian form, cannot prescribe an economic theory of
law without considering the acceptability of such a theory in society. To
do so would require (or force) people to surrender moral intuitions,
16 3
which Posner believes no one should do.
Id. at 1648.
160 Wong, supra note 140, at 447.
161 See Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARv. L. REv. 961,
159
1022-23 (2001) (arguing that there are social norms of fairness which people employ to assess
legal rules). Although the authors argue that fairness should be subordinate to welfare and this
can be done by allowing a welfare preference for fairness, this does not affect the current analysis.
162
Posner, Problematics,supra note 107, at 1673.
This subsection will revert to an assessment of Posnerian wealth maximization theory at
this stage because, although he may not fully accept such a theory anymore, it is all there is to
163
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The implication is that Posnerian legal theory, which seeks only to
maximize wealth, is unlikely to be palatable for most people in society
who have some social norm of fairness and morality.'6 4 To throw up
one's hands at morality because it is too complex, cannot be fully accounted for, or because universal answers are not easily available, is to
also abandon much of the intuitive and commonly held notions that
people believe are in some sense right. Law and economics theorists'
reluctance to fully address morality is likely to mean that such theorists
largely fail to provide the justification for an acceptable theoretical legal
framework or the practical implementation thereof. Thus:
[T]he view of rationality [legal] economists - utility theory [or wealthmaximization theory] - may not even be compatible with moral behavior, and it does not provide a rich enough picture of individual
choice to permit one to discuss the character, causes, and consequences of moral behavior. Of course [legal] economists need not
aspire to provide a general theory of human action. Yet they should
not shrug their shoulders at the difficulties in meshing moral behavior
with economic rationality. For it seems that moral behavior may have
important consequences for economic outcomes, and the propagation
165
of [wealth-maximization and] utility theory has moral implications.
It seems that Posner shrugs his shoulders at moral theory because
of problems associated with moral relativism. He then shrugs his shoulders at utilitarianism because one cannot account for the utility losses
suffered by relative utility losers following Pareto advancements. The
outcome of this double imperfection is a wealth-maximizing theory that
goes against intuition, many generally held moral beliefs in society, and
academic moral theories. As such, Posner's theory alone cannot provide
work with and any new theory that Posner develops is likely to still have a strong economic
component and, therefore, much of the criticism directed towards Posner here will likely still be
applicable.
164 See DWORKIN, LAW'S EMPIRE, supra note 1, at 286-88 (arguing that a wealth maximization theory effectively legitimizes a rich man forcibly taking a book from a poor man if the rich
man values the book at $11 and the poor man only values it at $5 because society's wealth is
maximized when the book is in the rich man's hands). An advocate of the economic theory of
law could argue that Dworkin's criticism is crude because it would be inefficient generally to
sanction widespread theft. However, this response still misses the point. Constraints upon the
use of force and theft likely have justification beyond the potential wealth maximization benefits
that such constraints are likely to bring about.
165 Daniel M. Hausman & Michael S. McPherson, Taking Ethics Seriously: Economics and
Contemporary Moral Philosophy, 31 J.
ECON. LITERATURE
671, 688-89 (June 1993).
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DWORKIN, NOZICK, & POSNER
a legitimate basis for a theory of law and social policy, and his subsequent ad hoc arguments do not resolve this problem. This is in large
part because people in society and the politicians that represent them
have values that require attention beyond the language of economic theory. Thus, in order to make economics or law and economics relevant
to such social agents, it is necessary to address these concerns, even if
one believes that such concerns are unwise.1 66 Posner needs to account
for moral norms where they do not comply with wealth maximization,
but he fails to do this. 1 67 Consequently, Posner is vulnerable to practical
criticism of his theory.
When politicians and non-economists think about problems of welfare, they employ concepts that do not easily translate into the language of standard economic theory . . . . Notions of fairness,
opportunity, freedom, and rights are arguably of more importance in
policy making than are concerns about moving up their given preference rankings. Insofar as economists want to assist in the formulation
of policy toward such ends, they must link economic theory to such
concerns. Doing so requires understanding what these vague things
are that people apparently value so much.' 6 8
This is particularly illustrated in civil disputes where adversarial
parties pay their own expenses to have a particular matter adjudicated,
not to have some economic lord announce a decision that may have
little to do with the actual claim, but may promote future wealth maximization. People expect a legal system to right particular wrongs, not
always to look to aggregate efficiency in an economy, and they are justified in holding such a position because otherwise the notion of an adversarial system makes little sense. Posner's theory also likely goes
166
See Kaplow & Shavell, supra note 161, at 1029, 1038. The authors accept that
social norms may well have an evolutionary basis, in which case their attractiveness is
instinctive and likely to be resistant to challenge . . . [but that] the very purpose of
academic discourse - and a central obligation of those designing and reforming the
legal system - to go beyond the relatively reflexive responses of ordinary individuals,
so that we can identify when our instincts and our intuitions about what is the best
policy lead us astray.
Id.
167
See Posner, Ethical and Political Basis, supra note 102, at 488 (assuming consensus for a
wealth maximization theory of common law and, therefore, failing to account for what people
actually desire).
168
Hausman & McPherson, supra note 165, at 676.
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beyond the legitimate bounds of what legal decision makers are entitled
to do.' 6 9
17
In addition, just as real-world judges are not moral philosophers,
real-world judges are not economists. Even if they are given extra training, 17 1 it is unlikely that they will produce the forward-looking outcomes that are necessary to legitimize a theory that has wealth
maximization as its only basis. This often defaults to a further level of
imperfection: judges who claim to be acting under the economic theory
of law often favor the corporation over the individual. 172 This, in turn,
results in legal outcomes that are often unfair to the individual and provide a defacto subsidy for corporations, corporations that may fail in the
ordinary market were they not sheltered from liability by companyfriendly judges and subject to the kind of full liability compensation
which Nozick endorses.
Juries also play roles in common law cases. Juries probably have
even less economic expertise than judges. However, even if juries were
provided with economic training or provided with supposed good economic advice by judges, there is intuitive and empirical evidence that
169 See Jules L. Coleman, Efficiency, Utility, and Wealth Maximization, 8 HOFSTRA L. REV.
509, 550 (1979-1980)
The question is whether judges have the authority to seize upon a private dispute
framed by and in terms of the respective litigant's interest as an opportunity to promote desirable social policies, for example, efficiency and distributional justice. The
alternative and I believe common sense view is that the responsibility of a judge is to
determine which of the litigants in a dispute has the relevant legal right.
Id.
170
See Posner, Problematics, supra note 107, at 1639 ("Moral theory is not something that
judges are, or can be, made comfortable with or good at.").
171 Judges, particularly high-ranking judges, attend conferences where they are given such
training. Legal economists talk about such training with great enthusiasm. However, such
training may not be effective. It may be useful to know more as the whole process sounds
slightly secretive. And, economic training or no economic training, one must realistically account for judges' other loyalties such as, inter alia, political loyalties.
172 See, e.g., Judge Frank H. Easterbrook's opinions in ProCD, Inc. v. Zeidenberg, 86 F.3d
1447 (7th Cir. 1996) (holding that a corporation's shrinkwrap license contained inside a
software box constitutes a binding contract on a consumer); Hill v. Gateway 2000, 105 F.3d
1147 (7th Cir. 1997) (holding that when a consumer buys a computer by telephone the contract
contained in the box in which the computer arrives and which limits return to within thirty days
is binding). But see Frank H. Easterbrook, Symposium on the Seventh Circuit as a Commercial
6
Court: Afierword: On Being a Commercial Court, 65 CHI.-KENT L. REv. 877, 881 n. (1989)
low tariffs
[hereinafter Easterbrook, Symposium] ("Economic analysts favor deregulation ....
and abolition of other import controls, and espouse other policies that many corporate managers
find unpalatable. It is hard to describe this agenda as one for apologists of Big Business.").
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DWORKIN, NOZICK & POSNER
juries do not accept the economic theory of law.1 73 They rightly think
that there is more to law than economics so that commonsense notions
of fairness, justice, and integrity reenter the legal system. The point is
that even if the economic theory of law is accepted, juries will likely
nullify judgments where they simply cannot agree with future wealth
maximization as the only basis of a legal system. And, they are likely to
be justified in holding such notions.
Posner's wealth-maximizing theory fails to properly account for social norms and what people expect of a legal system. Economic analysis
alone does not account for people's notions of fairness and other values.
As such, economic analysis cannot, without further development, provide a basis for a legal system based solely on the Posnerian principle of
potential wealth maximization. It may be beyond the bounds of an
adversarial system and the role of judges in such a system to decide cases
in such a way so as to maximize aggregate societal wealth. In addition,
it may not be practical to expect judges or juries to always be willing or
able to maximize aggregate societal wealth. This does not mean that
efficiency considerations are unimportant in society or a legal system. It
simply means that wealth maximization cannot provide a practical justification for anything like current legal systems and people's expectations
of such systems.
iii.
Welfare
Given that wealth maximization is unlikely to be morally or practically tenable as a basis for a legal system, this subsection briefly discusses
the reemergence of welfare arguments in law and economic theory.
This subsection contrasts such arguments with rights arguments based
on human interests. In the end, it will be argued that there is a large
amount of overlap. Although this subsection concludes that in certain
conditions stronger rights arguments seem to make sense, the overlap in
theories will likely provide a legitimate functional basis for a legal system
in many circumstances.
Given that wealth maximization alone has proven to be an incomplete theory upon which to fully base all legal analysis, certain writers
have either stressed fairness or rights as part of a welfare theory that can
173 See David A. Hoffman & Michael P. O'Shea, Can Law and Economics Be Both Practical
and Principled? 53 ALA. L. REv. 335, 388-99 (2002) (discussing empirical evidence of tendencies toward jury nullification if jury members are given instructions that comply with economic
theory but do not comport with jury members' sense of fairness).
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be used to support legal decision making. 17 On the other side of the
coin is the argument that people have rights if an aspect of a person's
well-being (or his interest) has sufficient reason for holding another person under some obligation to observe those rights. 1 75 This does not
mean that these views are consistent. On the contrary, there are situations where they can clash. However, clashes are only likely to occur in
complex circumstances. On the whole, a welfare-based theory which
respects rights can work in a similar fashion to a rights-based theory that
considers rights to be based on interests rather than natural rights such
as those discussed under the Nozickian conception of rights as side
76
constraints.1
Law is a complex subject. There are various disciplines within the
subject and areas which require ongoing analysis. Accordingly, it may
not be problematic to consider welfare and efficiency and associated
cost-benefit analyses in many areas of legal and political policy. 177 However, rights are likely needed in such areas as criminal and constitutional
law where people's crucial freedoms are at stake. As such, the usual
arguments criticizing utilitarianism's ability to justify almost any kind of
treatment of innocent people so long as aggregate welfare is somehow
advanced must be considered. 1 78 Thus, utilitarians must answer the
174 See, e.g., Kaplow & Shavell, supra note 161, at 1088-89 ("[O]ne would expect notions of
fairness [and rights] - to serve as a proxy for the identification of legal rules that promote
individuals' well-being. [We also note that this proxy characteristic of notions of fairness helps
to further explain their appeal.] ... [But] notions of fairness will tend to be only rough guides
and thus inferior to a direct welfare economic inquiry into how legal rules affect individuals' well
being."); MATTHEW D. ADLER & ERIC A. POSNER, NEW FOUNDATIONS OF COST-BENEFIT
ANALYSIS 26 (2006) (arguing for a moral position called weak welfarism which says "that overall
welfare has moral relevance but that other considerations, such as distributive or rights-based
considerations, may have moral relevance as well").
175 See Joseph Raz, On the Nature ofRights, 372 MIND 194, 195 (1984) ("Definition: 'x has a
right' if and only if x can have rights, and other things being equal, an aspect of x's well-being
[his interest] is a sufficient reason for holding some other person(s) to be under a duty.").
176 See supra note 71 and accompanying text.
177 Antitrust comes to mind as an area where societal welfare seems to have more prevalence
than individual rights. But, moral issues such as exploitation and extracting excessive profits are
still vitally important to antitrust theory.
178
See RAwLs, A
THEORY OF JUSTICE,
supra note 78, at 29-30
[Ultilitarianism is not individualistic, at least when arrived at by the more natural
course of reflection, in that, by conflating all systems of desires, it applies to society
the principle of choice for one man. And thus we see that the second contrast is
related to the first, since it is this conflation, and the principle based upon it, which
subjects the rights secured by justice to the calculus of social interests.
Id. But see
PETER SINGER, PRACTICAL ETHICS
14 (1993) ("If we are to be persuaded that we
should go beyond utilitarianism and accept non-utilitarian moral rules or ideals, we need to be
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DWORKIN, NOZICK, & POSNER
"scapegoat objection" which, unless they accept some form of rights,
they are unlikely to be able to do. The scapegoat objection shows how
"utilitarianism will permit enormous injustice in the name of general
happiness." 179 The scapegoat objection states that utilitarianism can allow for the punishment of the innocent so long as society has general
satisfaction because it assumes that the police have caught the culprit of
a particular gruesome crime.180 The oft-discussed law school responses
are that punishment in the form of imprisonment has such negative
utility that it cannot be justified, that there are no real utility benefits in
seeing the innocent punished when the guilty are at large, and so on.
However, these arguments in favor of utilitarianism beg the question
and it may be more reasonable to guarantee individuals, as best as possible, rights against such things as punishment of the innocent, casual
torture, and so on. In such circumstances, people have a right not to be
subjected to this kind of treatment. 1"
Advocates of the economic theory of law argue that rights cost
money.' 82 Accordingly, some such advocates question rights and their
ability to trump welfare considerations. 183 Welfare analysis has a role to
play in political and legal theory. However, like wealth maximization,
welfare alone cannot properly deal with certain legal considerations.
The problem can be discussed in the usual theoretical fashion. However, the following holding serves to illustrate where the divergence in
welfare and rights theory is most exemplified. The "Birmingham six"
had been convicted of murder following the bombing of public houses
in Birmingham, England. The six men attempted to bring a civil suit
against the police for injuries sustained while in custody, and they
claimed that confessions had been coerced by the police using violence.
Lord Denning, in his judgment in the English Court of Appeals in
1980, confronted the question of whether the case against the police
provided with good reasons for taking this further step. Until such reasons are produced, we
have some grounds for remaining utilitarians.").
179 JONATHAN WOLFF, AN INTRODUCTION TO POLITICAL PHILOSOPHY 57 (1996).
180 Id. at 57-58.
181 For a discussion of the circumstances where rights ought to trump utility, see generally
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977).
182 See STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY
DEPENDS ON TAxES 44 (1999) ("All rights are costly because all rights presuppose taxpayerfunding of effective supervisory machinery for monitoring and enforcement."). One should
note that the authors are not complaining about this issue. One should note also that welfare
maximization, cost-benefit analyses, and so on also cost money.
183
Kaplow & Shavell, supra note 161.
82
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should have been allowed to go to trial. The civil trial would have resulted in recognition of the illegitimacy of the police methods and, in
turn, could have formed the basis of a review of the criminal convictions. Lord Denning reasoned as follows:
If the six men fail, it will mean that much time and money will have
been expended by many people for no good purpose. If the six men
win, it will mean that the police were guilty of perjury, that they were
guilty of violence or threats, that the confessions were involuntary and
were improperly admitted in evidence and that the convictions were
erroneous. That would mean that the Home Secretary would either
have to recommend they be pardoned or he would have to remit the
case to the Court of Appeal. That is such an appalling vista that every
sensible person in the land would say: It cannot be right these actions
should go any further.18 4
Denning subsequently admitted that his reasoning was flawed, and
the men were released eleven years later in 1991 following a successful
appeal. This is a real example of where the theories discussed here wealth maximization and welfare maximization - encounter difficulties
that seem to go against intuitive accounts of what justice is and should
be, if it is assumed, of course, that the subsequent successful appeal was
properly decided. Legal academics often speak of how students learn
the law at law school and come to refine their views about what the
courts should do and the difference between what morality and law require. Thus, Posner argues that "a big part of legal education consists of
showing students how to skirt those pitfalls." 185 However, intuitions
that hold that the innocent should not be punished have merit and
should not be abandoned.
It seems that rights are the only way of going toward ensuring that
the innocent are not punished, that torture without hope of any useful
information should not occur, and so on. Posner's wealth maximization
theory cannot, by itself, deal with the errors in Lord Denning's reasoning. It is difficult to imagine that a theory which allows aggregate or
average welfare considerations to trump rights can cope with Denning's
184
185
Mcllkenny v. Chief Constable of the W. Midlands, 2 W.L.R. 689, 706 (1980).
Posner, Problematics, supra note 107, at 1695.
DWORKIN, NOZICK & POSNER
20091
arguments without begging the question.1 86 There may, however, be
some way that utilitarian theory can solve this problem in the future.
However, for now, this subsection has argued that Posner's criticism of moral theory is deeply flawed and provides no grounds for rejecting moral theory or moral theory associated with legal adjudication.
Several issues have been discussed where it may be unrealistic for advocates of law and economics to fail to fully consider people's moral expectations of what a legal system should do. The prescribed role of
economic judges in an adversarial system has been questioned. Finally,
although it has been accepted that welfare and cost-benefit analysis
should play a role in legal and social policy, this subsection argued that
recourse to utility alone cannot legitimize a legal system in truly difficult
cases where people's freedom is at stake. In such circumstances, some
form of rights theory is the only way to ensure just outcomes and a legal
theory which does not take such considerations seriously is unlikely to
be practical or to justify the coercive apparatus of the state.
B.
Wealth Maximization and Rational "Theory"
This subsection will assess two more economic aspects of Posner's
wealth maximization theory. First, some additional problems with
wealth maximization will be assessed. Wealth maximization was initially
accepted by Posner in order to overcome utilitarian difficulties associated with, inter alia, the average and total utility problem and intrapersonal utility comparison problems. 187 Instead, wealth maximization
equates efficiency maximization with the more tangible unit of measurement - dollars.1 88 This subsection argues that Posner's theory relies on
the price system. As such, it faces several theoretical problems that will
be pointed to, including some need to rely on utility. Second, this subsection assesses some of the assumptions underlying Posner's "theoretical" assumptions that people are wealth maximizers. The basis of
Posner's hostility towards behavioral economics will be questioned. Posnet's failure to fully account for legal costs in litigation will also be
briefly considered.
186 Cf. JOHN RAwLS, LECTURES ON THE HISTORY OF POLITICAL PHILOSOPHY 267-69 (Samuel Freeman, ed. 2007) (discussing overlap between John Stuart Mill's utilitarianism and rights
theory but also questioning the possibility of strong rights protection if Mill is to maintain his
position that he is a utilitarian).
187 Richard A. Posner, Utilitarianism,Economics, and Legal Theory, 8 J. LEGAL STUD. 103,
111- 19 (1980) [hereinafter Posner, Utilitarianism].
188 Posner, Ethical and PoliticalBasis, supra note 102, at 491.
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Wealth Maximization
The previous subsection concluded that Posner's rejection of moral
theory and his endorsement of wealth maximization may lead to difficulties in justifying a legal system and in the practical implementation of
a legal system. Wealth maximization will now be assessed on its own
terms, that is, as the basis of a realistic framework for efficiency. Posner
believes that wealth maximization solves difficulties associated with utilitarianism, is preferable to any other theory, and thus advances wealth
maximization as the best normative theory of law.' 8 9 The theory states
that legal decision makers, but particularly common law decision makers, should seek to maximize societal wealth when they are making legal
decisions.' 9" Posner's wealth maximization theory holds that wealth
maximization leads to optimal efficiency. He defines wealth as:
[T]he value in dollars or dollar equivalents ... of everything in society. It is measured by what people are willing to pay for something or,
if they already own it, what they demand in money to give it up. The
only kind of preference that counts in a system of wealth maximization is thus one that is backed up by money - in other words, that is
registered in a market.' 9 '
There are certain implications of Posner's reliance on the price system and the implications of such reliance for wealth maximization theory and the implications for wealth maximization as a supposedly
preferable theory to utilitarianism.' 92 Consider two parties to a legal
action, A and B. They have a dispute which occurs at t i. They go
before Judge, J, at time, t. According to Posner's theory, J must make a
legal decision at time, t2 , so as to maximize the aggregate wealth of society by making a common law judicial decision that will guide precedent
and affect other rational actors in the world at t3 , t 4 , t 5 , and so on. And,
this judgment will remain wealth-maximizing until another case comes
along at t 8 and, for some reason, it may be necessary to change the
189
Posner, Utilitarianism,supra note 187, at 103-04. Posner may be in the process of aban-
doning this theory. However, because he has not supplied readers with an alternative and because there are doubtless remaining advocates of the theory, it is worthy of some further
assessment.
190 Posner, Ethical and PoliticalBasis, supra note 102, at 487.
191 Posner, Utilitarianism,supra note 187, at 119.
192 See Coleman, supra note 169, at 520-34 (illustrating many conceptual flaws in wealth
maximization theory).
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DWORKIN, NOZICK & POSNER
initial decision at t 2 either because J made a mistake or because conditions in society that contribute towards wealth maximization have
changed.
Now overlooking four important initial criticisms - that the judgment at t2 may have little to do with the amount in dispute at t4 , that
the judge may not be able or allowed to make a decision of the kind
described at t 2, that other individuals in society may not rationally take
account of the legal decision at t2 , and that the legal decision itself may
actually create other effects in society besides the intended effect - it
seems that Posner's theory, which relies on the price system, begs several
questions. Rather than having supplanted utility theory with a new and
improved theory, utility theory always lurks in the background and
must do so because the price system does not exist by itself. The price
system is a construct of how society expresses its utility for goods and
services. This may seem attractive to Posner. But it is really the beginning of problems. For one thing, J at t 2 is supposed to make a decision
that maximizes wealth. Let's say at t2 , there is a good, g, that is very
scarce in society. Its price is high because supply is low, and because
supply is low, it is considered to be a treasured good so that people's
demand for the good is high. Also because it is a rare good, there is a
certain amount of prestige associated with g, and people who have g
derive high utility for g and people who do not have g have a high utility
preference for having g.
Let's say the legal decision at t2 involves g. Let's say A has a patent
for g. A limits supply and the market expresses demand for g as above.
B can also produce g and wants J to allow him to market g. J follows
Posner and wishes to maximize wealth in society. J sees that g is valued
at price, P. He reasons that more of g will increase wealth in society and
so he allows B to market g. B floods the market for g. Aggregate Pg
crashes. The market for g is now worth much less than it was at t 2 . J is
confused and wants to know what happened.
It seems obvious that the price for a product is not something that
bears some all-encompassing value. Posner could assume that prices are
fixed but that would make his theory so unrealistic that it could not in
any way form the basis of real-world decision making. That is supposed
to be one of the attractions of Posner's theory over utilitarianism - Posner's theory is supposedly simpler and avoids the complexities of utilitarianism. But if his theory fixes prices and requires judges to maximize
wealth on such a basis, then it is almost meaningless and cannot realisti-
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cally guide legal decision making in a way that can maximize wealth in a
market economy. Posner would likely reply that this criticism is flawed
and that, of course, judges need to account for market supply and de-
mand for specific goods and services. However, such a reply would be
overly simplistic. Like price, supply and demand are not stand alone
concepts. They reflect people's utility preferences for certain goods and
services. Judicial wealth maximization is a forward-looking concept.
Thus, judges have no way of deciding what maximizes wealth unless
they can foresee the future prices of products that are affected by their
legal decision making. They can only do this by assessing people's demand for future products. In turn, they can only realistically assess future demand for products by assessing future utility for products.
Therefore, wealth maximization based on price never gets away from
utility and the total and average utility problems and intrapersonal util93
ity problems are always lurking in the background of Posner's theory.1
ii.
Rational "Theory"
Over the past decade or so, law and economics has latched on to a
debate that has engulfed mainstream economic theory for the last several
decades. The debate centers around rational choice economics on the
one hand' 9 4 and behavioral economics on the other.' 9 This subsection
193 Posner's theory has other difficulties. It requires a market for everything in order to give it
legal value. It may not be efficient because short-term wealth maximization may lead to a lack
of saving which may affect long-term wealth maximization, and it fails to recognize that price
alone is not a value but a reflection of other interests and, as such, cannot by itself justify a legal
system. See generally id.(extensively and successfully critiquing Posnerian wealth maximization).
194 See, e.g., MILTON FRIEDMAN, EssAYs IN POSITIVE EcONOMics 27 (1953) (arguing that
assumptions on the rationality of man as a rational agent "can be used to get some indirect
evidence on the acceptability of the [economic] hypothesis in so far as the assumptions can
themselves be regarded as implications of the hypothesis, and hence their conformity with reality
as a failure of some implications to be contradicted"); Richard A. Posner, Rational Choice, Behavioral Economics, and the Law, 50 STAN. L. REV. 1551, 1551-52, 1559-60 (1998) [hereinafter
Posner, RationalChoice] (arguing that choice need not be conscious and, therefore, "[r]ars are at
least as rational as human beings," that behavioral economics is "economics minus the assumption that people are rational maximizers of their satisfactions," and that behavioral economics is
not sufficiently theoretical because it confuses "explanation and prediction"); Richard A. Posner,
Ronald Coase and Methodology, 7 J. ECON. PERSPECTIVES 195, 205-09 [hereinafter Posner, Ronald Coase and Methodology] (criticizing Ronald Coase's use of empirical data in the formulation
of economic conclusions and deeming such methodology "antitheoretical"); Gregory Mitchell,
Taking Behavioralism Too Seriously? The UnwarrantedPessimism of the New BehavioralAnalysis of
Law, 43 WM. & MARY L. REV. 1907, 2020-21 (2002) (arguing that psychological tests show
that behavioral theory's objections to rationality are excessive and that behavioral theorists "fail
to specify the boundary conditions on their empirical claims and instead settle for overly broad
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DWORKIN, NOZICK, & POSNER
will not enter this debate in any great detail. Instead, it will assess Posner's view that (legal) economists are guilty of flawed methodology if
they engage in empirical analysis in order to formulate their theories.
This subsection will criticize Posner's arguments as attempting to be
overly faithful to the Chicago School. While the type of theory that
Posner refers to may be justified in developing positive economic models, empirical observations become more compelling when one
prescribes a normative economic theory such as Posner's.' 96 Consequently, Posner's views in this area require modification.
Posner argues that economic reasoning should be theoretical in the
sense that it requires assumption which can then be applied to legal
generalizations about nonrationality to compete with the economic theorists' overly broad generalizations about rationality").
195 See, e.g., Amartya K. Sen, Rational Fools: A Critique of the Behavioral Foundationsof Economic Theory, 6 PHIL. & PUB. AFF. 317, 336 (1977) ("The purely economic man is indeed close
to being a social moron. Economic theory has been much preoccupied with this rational fool
decked in the glory of his one all-purpose preference ordering. To make room for the different
concepts related to his behavior we need a more elaborate structure."); HERBERT A. SIMON,
REASON IN HUMAN AFFAIRS 5-6 (1983)
Reasoning processes take symbolic inputs and deliver symbolic outputs. The initial
outputs are axioms, themselves not derived by logic but simply induced from empirical observations, or even more simply posited. Moreover, the processes that produce
the transformations of inputs to outputs (rules of inference) are also introduced by fiat
and are not the products of reason. Axioms and inference rules together constitute
the fulcrum on which the lever of reasoning rests; but the particular structure of that
fulcrum cannot be justified by the methods of reasoning. For an attempt at such a
justification would involve us in an infinite regress of logics, each as arbitrary in its
foundations as the preceding one.
Id; RONALD COASE, THE FIRM, THE MARKET, AND THE LAW 5 (1988)
[W]hatever makes men choose as they do, we must be content with the knowledge
that for groups of human beings, in almost all circumstances, a higher [relative] price
for anything will lead to a reduction in the amount demanded .... The generalization of such knowledge constitutes price theory. It does not seem to me to require us
to assume that men are rational utility [or wealth] maximizers. On the other hand, it
does not tell us why people choose as they do.
Id.; Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and
Economics, 50 STAN. L. REv. 1471, 1471 (1998) (arguing that empirical evidence "gives much
reason to doubt" the assumptions of neoclassical economics and traditional law and economics
theory); Jeanne L. Schroeder, The Economics ofRace and Gender: Rationality in Law andEconomics Scholarship, 79 OR.L. REV. 147, 249-52 (2000) (arguing that Posner's rational choice theory
is flawed because it treats wealth as an end rather than a means and suggesting that a theory that
isto assess economic decision making must consider psychoanalytic theory such as that of Jacques Lacan).
196 See Posner, Ethical and Political Basis, supra note 102, at 488 (introducing his wealth
maximization theory as a normative theory). The author is grateful to Michael Libonati for
providing the initial idea for this analysis.
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decision making.1 9 7 He argues that his rational economic theory rests
on assumption of what a rational man would do in a given situation.19 8
Posner criticizes what he terms "behavioral man" because he "is a compound of rational and nonrational capacities and impulses. He might
do anything. [Behaviorists] have neither a causal account of behavioral
man, nor a model of his decisional structure."' 99 Posner's conclusion
against behaviorists is the same as his critique of economists, such as
Coase, who Posner labels as institutionalists because they study the institutions of a market economy. Thus:
[T]he new institutionalists, like their predecessors the old institutionalists, think of institutions in a grittier sense. They study not "the
market," but the concrete institutions that enable markets to work for example, the rules of the Chicago Board of Trade; or long-term
contracts in the uranium industry; or how public utilities set rates; or
the terms on which diamonds are offered to dealers; or the common
law system of property rights in animals . . . . Intensive scrutiny of
particular institutions implies in turn an emphasis on the case
study .
20
Thus, the argument against behaviorists and institutionalists is the
same - they study man and institutions on a case-by-case basis and,
therefore, have no basis on which to form a theory of man generally or
the overall market.2" 1 Posner's arguments seemingly come loosely from
the doyen of the Chicago School, Milton Friedman. Thus, Friedman
argues in the context of positive economics2 2 that,
[T]he relevant question to ask about the "assumptions" of a theory is
not whether they are descriptively "realistic," for they never are, but
197
198
Posner, Rational Choice, supra note 194, at 1559-60.
Id. at 1559.
199 Id.
200
INST.
201
Richard A. Posner, The New Institutional Economics Meets Law and Economics, 149 J.
&
THEORETICAL ECON. 73, 76 (1993).
See Posner, Ronald Coase and Methodology, supra note 194, at 205 (criticizing Coase's
methodology for being antitheoretical by focusing on empirical data and attributing it to Coase's
"methodological Englishness." "Hostility to theory is a bright thread in the carpet of English
thought .... I am thinking here of the common sense, empiricist, anti-theoretical tradition in
English philosophy that runs from Samuel Johnson and Locke and Hume to Moore, Ayer, and
J.L. Austin."). Perhaps Posner is much closer to this "Englishness" than he is willing to admit.
This may be especially so given his hostility towards moral theory.
202 See FRIEDMAN, supra note 194, at 3 ("Positive economics is in principle independent of
any particular ethical position or normative judgments.").
DWORKIN, NOZICK, & POSNER
2009]
whether they are sufficiently good approximations for the purpose in
hand. And this question can be answered only by seeing whether the
theory works, which means whether it yields sufficiently accurate predictions . . . . [Empirical] criticism . . . is largely beside the point
unless supplemented by evidence that a hypothesis differing in one
way or another of these respects from the theory being criticized yields
better predictions ....
203
It seems that Friedman is saying that his theory cannot be criticized
on the basis of its assumptions alone if the assumptions prove not to be
fully realistic in the real world. What is important is that his assumptions, such as regarding man as a rational utility maximizer, are sufficiently close so as to allow his hypotheses to be "confirmed" by
experience. 2 " But nowhere does Friedman say that empirical observations are antitheoretical, as Posner does. To the contrary, he states that
"empirical evidence is vital . . . in constructing hypotheses ' 20 5 and one
reason that a "theory does not work ... [is] because its assumptions are
false."2 o6
Accordingly, Posner's antitheoretical charges against behaviorists,
institutionalists, and Coase are unfounded if it is reasoned that these
people simply wish to get better assumptions before developing theories.
Thus:
In Coase's [and many economic behaviorists'] research strategy, the
role of case study is to serve as an indispensable element in the process
of abstraction whereby adequate abstract notions are pursued ....
It
is most intriguing to observe that it is Posner's view that is closer to
"methodological Englishness" in this respect. Posner is content with
theories that predict well without describing correctly the mechanisms
that generate the phenomena predicted ....
The Coasean [and behaviorist] view of theory as a penetrating account of "how the world
works" gives theory a powerful role and an irreducible status, while
Posner's instrumentalist conception downplays theory and gives it just
a timetable status . . . it is Posner who is closer to the kind of anti-
203
Id. at 14, 30.
204
The author is grateful to David Hoffman for this point.
205 FRIEDMAN,
206
Id. at 18.
supra note 194, at 11.
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theoretical empiricism that he wrongly attributes to Coase [and
behaviorists]. 207
Posner's account of methodology simply does not hold up to even
the most basic analysis. It is particularly problematic because Posner,
unlike Friedman in the above discussion, states that his wealth maximization theory is not simply a positive economic theory, but a normative theory.20 8 As such, he is endorsing it not simply as a model for
academic proof, but as a model that ought to be accepted in real-world
legal decision making. Given the multitude of effects his theory could
have (and most likely has had) on people, behavioral accounts of where
his theory and underlying assumptions are flawed warrant particular
scrutiny.
Finally, empirical evidence is needed to reach crucial conclusions
that Posner arrives at, and empirical justification is required to maintain
those positions. For example, Posner has argued against per se rules2 0 9
in antitrust law because he believes that in certain cases per se rules may
go against certain companies that may actually be increasing efficiency." t He, therefore, argues against a per se rule against restricted
distribution that was imposed in Doctor Miles Medical Co. v. John D.
Park & Sons, Co.211 But it seems that Posner misses the point and he
cannot prove his point without recourse to empirical evidence. Per se
rules may injure certain companies in antitrust law if they are not acting
nefariously and may actually be adding to aggregate efficiency. However, per se rules give companies clear-line rules to follow and avoid
lengthy legal adjudication which can lead to extensive punitive and litigation costs. 2 12 The simple point is that Posner cannot simply say that
an individual company was not acting inefficiently and, therefore, a per
se rule should not have been applied to that individual company.
207
Uskali Mdki, Against Posner against Coase against Theory, 22
CAMBRIDGE
J. ECON. 587,
590-92 (1998).
208 See Posner, Ethical and Political Basis, supra note 102, at 488 (introducing his wealth
maximization theory as a normative theory).
209 Simply put, a per se rule states that all behavior that conforms to a certain paradigm is
illegal and cannot be excused by recourse to argument such as efficiency-based arguments.
210 Richard A. Posner, Antitrust Policy and the Supreme Court: An Analysis of the Restricted
Distribution, Horizontal, Merger and Potential Competition Decisions, 75 COLUM. L. REv. 282,
298 (1975).
211 Doctor Miles Med. Co. v. John D. Park & Sons, Co., 220 U.S. 373 (1911).
212 See generally Robert Pitofsky, Why Dr. Miles Was Right, 8 REG. 27 (1984) (arguing that
per se rules can be efficient because, inter alia, they keep down litigation costs).
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DWORIN, NOZICK & POSNER
Rather, Posner must show why a per se rule should not be generally
applied. To do so, he must account for all costs associated with antitrust
litigation. He cannot do this by resorting to economic theory regarding
the efficient microeconomic functioning of an individual firm. He
needs to assess all of the relevant cost information and he can only do
this with empirical study.
This subsection has argued that rather than doing away with reliance on utility theory, utility considerations lurk behind Posner's wealth
maximization theory at every stage. Posner's wealth maximization solution to overcome utility considerations is overly simplistic. As such, it
cannot, by itself, justify legal decision-making procedures. Posner's arguments against behavioral economics also derive from a misconceived
loyalty to the Chicago School of economic theory. Empirical observation is essential to theory and, without a sufficient empirical basis, Posner has little justification for prescribing his wealth maximization theory
and for criticizing effective legal rules.
C. Distribution, Capture, and Marx
This final subsection on law and economics will contend that Posner's wealth maximization theory fails to account for wealth distribution
and assumes a just distribution of initial resources. This subsection will
argue that powerful economic agents exert control over important political institutions in society and that the economic theory of law generally
fails to account for this capture and its efficiency effects in society. Finally, Posnerian law and economic theory may fall prey to Marxian criticism of economic theory generally. Such criticism accuses economic
theorists of being apologists for the market economy without consideration of broader effects. The role of such economic theorists is confined
to making clever arguments in favor of something that, when properly
assessed, may be in need of further justification and reformulation.
Posner believes that if a society maximizes wealth it will "produce
an ethically attractive combination of happiness, of rights (to liberty and
property), and of sharing with the less fortunate members of society. '"213
However, there is no obligation to share in Posner's wealth-maximizing
society. In addition, wealth maximization need not provide for any social minimum or welfare system. So long as aggregate wealth in society
is maximized, there is no reason to even consider those at the very bot213
Posner, Ethical and PoliticalBasis, supra note 102, at 102 (citing Richard A. Posner, Utili-
tarianism, Economics, and Legal Theory, 9 J.
LEGAL
STUD. 191 (1980)).
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tom. Indeed, given Posner's encouragement of wealth attainment and
antipathy towards any kind of moral obligation whatsoever, "it is hard
to see how we will avoid ending up with something like a barely regulated free market economy with rather haphazard voluntary philanthropy: nineteenth century capitalism. ' 2 1, Posner may be perfectly
happy with this. Indeed much of his academic heritage comes from this
era. However, the present poverty in this country and elsewhere deprives people of opportunity. Such a state of affairs will likely be the
same or worse in a true Posnerian state. Over the long run, this may
lead to efficiency problems as well if there is an unproductive workforce.
Posner may be able to adapt his theory to deal with such issues from an
efficiency point of view. However, the main point is moral - people
should not generally be deprived of basic social goods even if depriving
them of such goods maximizes aggregate societal wealth. Posner's assumption that wealth maximization will lead to charitable contribution
to help the needy has little basis and seems to be just a way of avoiding
justified criticism. In the end, he shows his true colors:
[H]istory, experience, and honest introspection (if that's possible)
teach us that the vast majority of us are unwilling to pay a high price
in selfish joys and comforts forgone to be good. We are reluctant to
pay any price to be good. We can avoid paying any price, without
suffering any pangs of conscience - we can have our cake and eat it by denying that morality requires us to change our behavior.2 15
Just as Posner makes a halfhearted attempt to appease egalitarians,
he also tries to argue that his theory supports libertarianism.2" 6 He argues that through his wealth maximization theory, we are led, "in the
manner of Nozick and Epstein, to an ethical defense of market transactions that is unrelated to their effect in promoting efficiency . . .,.
Once again, Posner is far too quick. Libertarianism is based on a system
of justified entitlement. Posner's system does not account for any kind
of justified ownership. Thus, he endorses a theory of society that takes
neither equality nor entitlement seriously. He is guilty of assuming a
Jonathan Wolff, Robert Nozick, Libertarianism, and Utopia, CRITIQUES OF LIBERTARIANISM, (last updated Oct. 25, 2007) available at http://world.std.com/-mhuben/wolff_2.html
(criticizing Nozick's reliance on charity to solve problems of poverty).
215 Posner, Problematics, supra note 107, at 1666.
216 Posner, Ethical and PoliticalBasis, supra note 102, at 490.
217 Id.
214
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justified historical background to implement his theory whereas no such
background may exist. Thus:
Most economists [including Posner] don't seem to have or to feel the
need for any knowledge of their content, or in the reality of their
supposed inner responsiveness to the ideas of property or contract.
They appear as a neutral background in everyone's interest (efficiency), that is constantly threatened by the more partial, political,
interest-group-based or ideological based initiatives of legislatures.218
Indeed, while legal economists such as Posner criticize moral demands of the poor, they fail to take account of powerful economic
agents and the effect that such agents have on political and legal institutions in society. Posner criticizes sociologists for taking power effects
into consideration in their theories because, he argues, power is "difficult to operationalize. '21 9 But, powerful economic agents do influence
the legal and political apparatuses of the state. They contribute to political campaigns, try to get employees or loyal people to sit on political
committees and regulatory agencies, they fund studies beneficial to their
interests to try and influence policy, and so on. These actors do this not
to promote aggregate efficiency but to promote their own individual
efficiency and the two may only collide coincidentally. Thus:
Market actors will exert power - whether or not they are aware of it because of the situational pressures of the market. If profit can be
made by influencing the situation, we predict that it will be. Market
competitors will, to survive in the long run, "discover" precisely which
situational manipulations most efficiently influence us and how. Market actors who fail to manipulate situational variables effectively will
sooner or later be supplanted by those who do.22 °
Posner's failure to account for such power occurrences and their
effects may affect his theory of efficient wealth maximization in the
long-term. In addition, it is unreasonable to criticize moral theorists for
arguing for ends that may produce inefficient outcomes, while at the
218
Duncan Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Com-
modities, 34 AM. U. L. REv. 939, 964 (1985).
219 Richard A. Posner, The Sociology ofthe Sociology of Law: A Viewfrom Economics, 2 EUR. J.
L. & ECON. 265, 272 (1995).
220
Jon Hanson & David Yosifon, The Situation:An Introduction to the SituationalCharacter,
CriticalRealism, Power Economics, and Deep Capture, 152 U. PA. L. REv. 129, 198 (2003).
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same time turning a blind eye to inefficiencies that are produced by
market, political, and legal manipulation carried out by powerful economic actors. But this is not a new criticism.
Economists historically have defended the market warts and all.
They fail to account for negative market outcomes, and have often
blamed negative outcomes on interference with the market. Law and
economics is no different. It supports conservative market policies and
chastises social welfare initiatives that interfere with the market or the
legal system. Thus:
[R] uling political groups produce and retain the doctrines of common
law that serve them best. In an important sense, the Posnerian school
already admits this: they point out that a politically effective group
resorts to statute law when it is dissatisfied with the common law.
This is surely the equivalent to saying that, when the common law is
left alone, it is because it serves the politically effective group without
statutory modification or because it lacks an influential opponent.22
Similarly, it is hardly surprising that Posner and other adherents to
the law and economics movement have been appointed to federal judicial positions. They were appointed not because the economic theory of
law is in any way radical, but because it fits nicely with political conservatism. Where efficiency and "Big Business" collide, this is all too often
overlooked.22 2 Historically, economists have often supported the bourgeois market economy, even when such support had zero ethical sense
and minimal economic support.2 2 3 Posner criticizes academic moral
philosophers for having little knowledge of the real world and little ability to form sound policy opinions.2 2 4 But Posner's allegations can also
be directed towards academic economists. Posner may be correct that
moral philosophers can be unusually left-wing. But, academic econo221
George J. Stigler, Law or Economics?, 35 J.L. & ECON. 455, 460 (1992) [hereinafter
Stigler, Law or Economics?].
222
But see Easterbrook, Symposium, supra note 172, at 881 n.6 ("Economic analysts favor
deregulation . . . low tariffs and abolition of other import controls, and espouse other policies
that many corporate managers find unpalatable. It is hard to describe this agenda as one for
apologists of Big Business."). It would be interesting to carry out a study to see the actual
application of Easterbrook's "economic analysis."
223 See KARL MARX, CAPITAL, ch. 9, § 3 (Ben Fowkes trans., 1983) (1867) (Marx famously
refuting Nassau Senior's "last hour" which stated that the length of the working day could not
be shortened because factory owners extracted most of their profits in the last hour of the
working day).
224 Posner, Problematics, supra note 107, at 1670-71.
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mists often have theories that go far beyond anything that is generally
accepted in society. 225 These kinds of right-wing, free market theories
are undemocratic and unrealistic, as much as they are questionable from
a moral standpoint. Where, as in Posner's case, they are also inconsistent on their own terms, they have no business meddling in systems of
justice. Posner and his followers need not be guilty of malicious hypocrisy or nefarious intent. They may simply be inculcated in a conservative system of law, legal academia, and economic academia. They are
also a part of the ruling class and, as such, may engage in a great deal of
self-deception in order to excuse their participation in a system that
oversees great iniquities and does not fear increasing such iniquities in
the name of wealth maximization. Thus:
[T]he capacity of self-deception of an exploitative ruling class would
be said by Marx to be practically infinite: The long-term nonmoral
interests of a typical member of such a class often sharply conflict with
the moral principles which he puts forward without hypocrisy; and
when this conflict obtains, no reasoning from those moral principles
can, in a typical case, dissuade an exploiter from doing what his nonmoral interests demand.2 26
However, whether or not protagonists of the economic theory of
law are fully conscious of the effects and inconsistencies of their theories, this Article has sought to show that their theories are deeply flawed
and cannot, by themselves, form the basis of a legitimate legal system.
This section, thus far, has criticized law and economic theory. It
has been argued that such a theory fails to properly account for morality
and may be impractical. Scholars have reasoned that, where welfare
trumps rights, as is the case with most law and economic theory, there is
potential for unjust outcomes that need to be accounted for. This section defended the proposition that Posnerian wealth maximization theory never sheds the problems associated with its utilitarian heritage, and
that behavioral considerations can enhance the study of economic theory and thereby contribute in a more meaningful way to legal theory.
Finally, Posner fails to account for distributional, entitlement, and eco225
See Hausman & McPherson, supra note 165, at 676 ("When politicians and non-econo-
mists think about problems of welfare, they employ concepts that do not easily translate into the
language of standard economic theory.").
226 Richard W. Miller, Rawls and Marxism, in READING RAwLs: CRITICAL STUDIES ON
RAWLs' "A
THEORY OF JUSTICE"
208, 218 (Norman Daniels ed., 1989).
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nomic power considerations that negate the potential for any justified
practical application of his theory and exemplify inconsistencies in
mainstream law and economic theory.
D. Efficiency Revisited
The economic theory of law, at least in its Posnerian form, does
not provide a basis for a realistic theory of law. However, economic
22 7
efficiency in a legal system and in society generally cannot be ignored.
The concept of excessive legal claims that are necessitated in Nozick's
system was already discussed where all have an equal right to rectification. In order to avoid inefficiency and the swelling of the legal system
in Nozick's minimal state, certain levels of resources should be afforded
to all individuals. Many egalitarians ignore efficiency and, therefore,
subject their theories to inconsistency or impracticability. Certain advocates of redistribution go beyond Rawls's difference principle 2 8 and the
varying possibilities of unequal outcome in Dworkin's theory of equality
of resources and seek greater or total equality of outcomes. However,
these redistributionists, broadly assessed, seem to accept inequality up
until society has obtained a certain level of wealth. Only then do they
seek out a much greater or total equality. Baruch Brody argues that
everyone in society deserves: (1) state of nature levels of subsistence,
and, (2) more in wealthier countries, where the benefits of the transition
from the state of nature are more apparent, and the poor should also be
allowed to share in these benefits.22 9
In describing Rawls's egalitarianism as "a crass apology for the
bourgeois order," Kai Nielsen replaces Rawls's difference principle with
his own principle of distributive justice, which states:
After provisions are made for common social (community) values, for
capital overhead to preserve the society's productive capacity and al227
See Stigler, Law or Economics?, supra note 221, at 463 ("[Elconomics has always been part
of every legal system . . . [but noting poignantly] that there are lawyers with sophisticated
knowledge of economics . .. (but one suspects that economists would count fewer such lawyers
than the lawyers do).").
228 RAwLs, A THEORY OF JUSTICE, supra note 78, at 60 ("[E]conomic inequalities ...are to
[be to] the greatest benefit of the least advantaged.").
229 Baruch Brody, Redistribution Without Egalitarianism,1 Soc. PHIL. & POL'Y71, 87 (Autumn 1983). Although Brody's argument is not justified as egalitarian in that egalitarianism
does not form the underlying justification for redistribution, it is egalitarian in an outcome sense
in that if redistribution does take place there will be greater equality. Even though I am pointing
to a potential problem in Brody's theory, I broadly agree with him in (2).
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lowances are made for differing unmanipulated needs and preferences,
the income and wealth (the common stock of means) is to be so divided that each person will have a right to an equal share. The necessary burden requisite to enhance well being are also to be equally
shared, subject, of course, to limitations by differing abilities and dif23
ferent situations (natural environment not class position). 1
Both Brody and Nielsen seem to implicitly accept that certain
levels of material wealth must be in place before more equality or an
equal share is granted. This may be a necessary condition if one accepts
Harry Frankfurt's argument that prescriptions of equality, irrespective of
condition, have morally questionable results. Frankfurt asks his reader
to
suppose that there is enough of a certain resource (e.g., food or
medicine) to enable some but not all members of a population to
survive. Let us say that the size of the population is ten, that a person
needs at least five units of the resource in question to live, and that
forty units are available. If any members of this population are to
survive, some must have more than others. An equal distribution,
which gives each person four units, leads to the worst possible outcome: viz., everyone dies. Surely in this case it would be morally gro23
tesque to insist upon equality!
1
Thus, the egalitarian is left with two initial problems: (1) equality
cannot be a universally prescribable right/value, and, (2) the egalitarian
cannot ignore efficiency because efficient production will likely be
needed before an equal or more equal share can practically materialize. 2 32 The initial point here is that Nielsen's slogan - "Better a greater
equality in self-respect than more goods ' 23 3 - where he equates greater
self-respect with an equal share, cannot, even on Nielsen's terms, be a
universal slogan because of the concerns put forward by Frankfurt. This
is especially problematic if one accepts the capitalist mode of production
230
Nielsen, supra note 79, at 213-14.
231
Harry Frankfurt, Equality as a Moral Ideal, in
EQUALITY: SELECTED READINGS
261, 266
(Louis P. Pojman & Robert Westmoreland eds., 1997).
232 This analysis applies to normal capitalist forms of production but also more communitarian forms of production as well. This bypasses considerations of incentives and motivation that
may be considered "a result of capitalist history." See G.A.
COHEN, IF YOU'RE AN EGALITA-
RAsN, How COME YOU'RE So RICH? 120 (2000) (arguing that people's thoughts about markets
are shaped by actual market history and that there may be better alternatives).
233 Nielsen, supra note 79, at 212.
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as a means of attaining levels of resources needed to bring about an
equal or a near equal share. If one does accept (even a limited form of)
capitalism as a way to attain the levels of resources needed to enact egalitarian redistribution, and agrees that capitalist inequality has been important in attaining sufficient resources, then one is left with the
considerable problem that inequality may be needed to maintain sufficient levels of resources to enable redistributive schemes. This would
seem to create an impasse for the equal share egalitarian who decries
efficiency as some lesser value.
It is not difficult to abstract further and argue that certain levels of
wealth will likely be needed before a legal system can be so extensive as
to search for justice, fair compensation, or integrity without consideration of the needs of people generally in society. We saw this to be problematic for Nozick's libertarianism, where the absence of some kind of
safety net welfare state and the requirement that people be equally protected by the state may lead to a swelling of the minimal state because
entitlements to even small bundles of goods become extremely important to people on the breadline.2 34 Dworkin also cannot go so far as to
argue that his legal system or theory of equality of resources always supersede efficiency considerations. Although Dworkin is not an equal
share egalitarian, in the sense described by Nielsen, he does sanction
extensive state action to compensate for unequal brute talent.2 35 It is at
least imaginable that some of the efficiency considerations mentioned
with regard to Nielsen, Brody, and Frankfurt, could also apply to Dworkin's theory of equality of resources. This may be one reason why
Dworkin recognizes that efficiency considerations may trump his theory
of equality of resources. With regard to his theory of legal integrity,
Dworkin's legal system is also likely to be subject to time limitations
and will likely require minimum levels of financial disputes in civil cases
in order to ensure that the court system is not overburdened. It may
also have to address some wealth-maximization functioning, provided
that society is doing very badly and needs judicial decision making that
can promote wealth maximization and efficiency, rather than solely focusing on bringing about legal outcomes that comport only with Dworkin's notion of integrity.
234
See generally supra Part II.
235
See generally supra Part I. B.
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CONCLUSION
It is not impossible to abstract further and believe that the very
existence of a legal system, at least for civil cases that involve property or
damages, is itself secondary to the existence of certain things, such as
protected property and goods, or currency meant to redress damages.23 6
However, this analysis would likely require an analysis of the goings-on
in a state of nature, real or imaginary, a subject which is well beyond the
scope of this Article. For now, it is necessary to make some brief conclusions regarding what has been learned from this Article and to outline paths for future research.
In Part I. A, Dworkin's theory of law as integrity was deemed to be
problematic because he prescribes a legal decision making process for
real-world judges that those judges will not likely be able to adhere to.
This means that Dworkin needs to fully consider institutional restraints
on judges and their actual ability to act in the nonpartisan, moral way
that he requires of them. Nevertheless, Part I. A concluded by recognizing that integrity likely has an important role to play in a legal system,
but that that concept needs further assessment to determine whether it
is a value in itself or part of other values commonly attributed to a legal
system such as justice, fairness, due process, and so on.
In Part I. B, it was stated that Dworkin largely assumes equality.
Peter Westen was discussed in the context of his questioning of the importance of equality. He argues that it is subsumed within other concepts. Nevertheless, this subsection reasoned that when people have less
of certain things than others, equality is an important concept, at least
logically and rhetorically. Dworkin cannot always assume that his theory is morally superior to libertarianism. Dworkin, himself, recognizes
that privacy can trump equality, and the reason it can is that excessive
state interference in people's lives, compliant with Dworkin's theory of
equality of resources, could become intolerable and even morally inferior to libertarianism.
In Part II, however, it was argued that Nozick's libertarianism, as it
stands, cannot provide the basis for a legal system while staying true to
its minimal statism. This is because his system of rectification and compensation is subject to imperfection and manipulation. Additionally,
the minimal state will swell greatly if all legal claims are heard, an out236
Cf
DAVID GAUTHIER,
MORALS
BY AGREEMENT
litical society through utility maximizing behavior).
(1986) (explaining the evolution of po-
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come which is necessary if all individuals are given the equal right to
rectification to which they are entitled in Nozick's theory. Accordingly,
efficiency considerations may have to be considered before a fully legitimized entitlement-based legal system can be implemented in practice.
In Part III, it was argued that the economic theory of law, exemplified by Posner, fails to properly account for morality and may be impractical. There is potential for unjust outcomes that need to be
accounted for where systems of welfare override individual rights. Posnerian wealth maximization theory is, in this context, vulnerable to criticisms leveled at classical utility theory because Posner's never really
abandons utilitarianism in a meaningful way. Behavioral considerations
can enhance the study of economic theory and, therefore, can serve as
the basis of a more realistic economic theory to supplement legal theory.
It was argued further that Posner fails to account for distributional issues, entitlement issues, and the effects of powerful economic actors in a
market economy. However, egalitarians and law as integrity advocates
can also not ignore wealth and efficiency considerations without resulting in morally questionable outcomes.
So where does this leave us? I believe that a proper legal system
and society in general must consider all of the four values that have been
broadly outlined in this Article, namely, integrity, equality, liberty in
the form of noninterference, and efficiency. While there may be situations where it is not possible, society should aspire to provide all citizens
with at least sustenance, education, and equality before the law. These
principles remain undefined here, but they could potentially be consistent with the four values discussed in this Article. To incorporate these
principles into the four values discussed would go far beyond the limits
of this Article. However, for now, if I have been successful, this Article
has shown certain difficulties in adopting unitary values common in
legal and political philosophy and that the values discussed are not isolatable but often contingent upon one another. This Article is not arguing for a moral, legal, and political vacuum. On the contrary,
sustenance, education, and equality before the law are fundamental considerations that should usually be afforded to all individuals by the state
if certain individuals are unable to provide for themselves. Sustenance,
education, and equality before the law can largely be compatible with
the four values - integrity, equality, liberty in the form of noninterfer-
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ence, and efficiency - discussed in this Article.23 7 The details of that
compatibility will have to be left for another time. This theory, by definition, will be pluralistic, 238 and in certain situations, may be theoretically imperfect and require pragmatic justification. It may require
interdisciplinary assessment at various levels, particularly to determine
the means by which ends that will be advocated can be achieved. However, the fact that the theory is pluralistic and may require some pragmatic justification does not itself present any insurmountable
difficulties, especially if it can overcome the extensive problems of the
theories discussed in this Article.
237 Cf Andrew Williams, Liberty, Equality, and Property, in THE OXFORD HANDBOOK OF
POLITICAL THEORY 488, 504 (John S. Dryzek, Bonnie Honig & Anne Phillips eds., 2006)
(arguing for what he terms a "sufficientarian theory," which accounts for aspects of libertarianism, egalitarianism, and free markets).
238 Cf Michael Walzer, Justice Here and Now, in JUSTICE AND EQUALITY HERE AND Now
141, 142-44 (F.S. Lucash ed., 1982) (arguing for pluralistic political theory to address inequality
in society); MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY
15 (1983) (arguing for an egalitarian theory based on moral pluralism).