Legal Fictionalism and the Economics of Normativity
University of San Diego School of Law; Universidad Torcuato Di Tella
October 11, 2012
Mark D. White (ed.), The Theoretical Foundations of Law and Economics, Cambridge University Press, 2009
The rational choice analysis of legal normativity has often been associated with legal reductionism and legal conventionalism. In this paper I try to show that both accounts are defective. Instead of returning to classic conceptions of justified normativity, which are hardly consistent with rational choice analysis, I investigate a different approach to legal normativity that was originated by David Hume. Through a constructive interpretation of relevant passages in the Treatise, I seek to uncover a fictionalist interpretation of legal discourse and political conventions. This interpretation explains how legal ought’s can be inferred from political is’s: the constitutive rules of political conventions create fictional obligations through rules of inference. No fallacy is involved in this as long as we adopt a fictionalist interpretation of objective obligation-judgments. Rules of inference that allow the derivation of obligation-judgments perform an ideological function, because they conceal the fact that political conventions are self-validating. The ideological advertising of such self-validation is supplied by state apparatuses as a form to reduce in various ways policing and enforcement costs. Unlike the rule of recognition, which Hart conceives as a solution to the problem of uncertainty in the identification of primary rules, the fundamental point of self-validating political conventions and their sustaining ideological advertising is to implement social control in cost-effective ways.
Number of Pages in PDF File: 22
Keywords: Law, Normativity, Enforcement, Legitimacy
Date posted: October 11, 2012