Legal Fictionalism and the Economics of Normativity
Mark D. White (ed.), The Theoretical Foundations of Law and Economics, Cambridge University Press, 2009
22 Pages Posted: 11 Oct 2012
Date Written: October 11, 2012
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.
Keywords: Law, Normativity, Enforcement, Legitimacy
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