An Economic Analysis of Legal Reasoning and Democracy: The Saint Thomas More and Che Guevara Signaling Games

UNAM-University of California, Berkeley First Dual Meet

39 Pages Posted: 1 Feb 2007 Last revised: 15 Jun 2017

See all articles by Juan Javier del Granado

Juan Javier del Granado

National Autonomous University of Mexico (UNAM) - Instituto de Investigaciones Jurídicas

Jesse Bull

Florida International University (FIU) - Department of Economics

Date Written: April 28, 2017

Abstract

Legislatures have positive legitimacy to make law because of the power of the people who elected them. Throughout the world, however, unelected judges also make law. What, if anything, gives such judges positive legitimacy to make law? This paper demonstrates, through two superficially simple game theoretic models, that judges' positive legitimacy is based on the power of people. Courts' legitimacy has the same basis as legislatures'. Since the French revolution, the ultimate arbiter in the social fight is the strongest faction, the majority. A group of people communicates its type to society at the ballot box. On the basis of the ballot count, society makes concessions to the terms dictated by the majority. Under what circumstances would an individual ever be able to dictate terms to society? This paper demonstrates that the court system allows a single individual to act collectively with other similarly situated individuals spread out through time. This paper argues that this group is able to communicate its type to society through legal reasoning. Courts are insulated from the political process because unelected judges are supposed to be beholden to a temporally disconnected group, rather than to contemporaneous constituencies.

Keywords: legal reasoning, legitimacy, judge-made law, rule of law, game theory, judicial independence, separation of powers

Suggested Citation

del Granado y Rivero, Juan Javier and Bull, Jesse, An Economic Analysis of Legal Reasoning and Democracy: The Saint Thomas More and Che Guevara Signaling Games (April 28, 2017). UNAM-University of California, Berkeley First Dual Meet, Available at SSRN: https://ssrn.com/abstract=959308 or http://dx.doi.org/10.2139/ssrn.959308

Juan Javier Del Granado y Rivero (Contact Author)

National Autonomous University of Mexico (UNAM) - Instituto de Investigaciones Jurídicas ( email )

Circuito Maestro Mario de la Cueva s/n,
Cd. Universitaria
Mexico City, D.F. 04510
Mexico

Jesse Bull

Florida International University (FIU) - Department of Economics ( email )

Miami, FL 33199
United States

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