COGNITION AND ECONOMICS PART 8

THE ANTI-FOUNDATIONAL DILEMMA: NORMATIVE IMPLICATIONS FOR THE ECONOMIC ANALYSIS OF LAW Elisabeth Krecke and Carine Krecke 1. INTRODUCTION In recent years, traditional legal systems have been increasingly challenged by the rapid and wide-ranging changes induced by modern technology and science which constantly transform our economies and societies. The rise of a new type of scholarship in contemporary legal thought can be understood in the light of the growing disjunction between the traditional methods of law dealing with social problems and the overall pragmatic spirit of the globalized economies. The intrinsic conservatism of traditional law is some-times (more or less explicitly) accused of being inadequate to cope with the problems raised by the application of new technologies and sciences, or worse, of being an impediment to the development of the full potential of the modern economies. An important normative goal of this new legal scholarship is precisely to develop ways of reconciling the role of law in society with the requirements of the economies. In this respect, the most far-reaching contribution emanates from the so-called law-and-economics movement initiated at the University Cognition and Economics Advances in Austrian Economics, Volume 9, 201–233 Copyright r 2007 by Elsevier Ltd. All rights of reproduction in any form reserved ISSN: 1529-2134/doi:10.1016/S1529-2134(06)09008-9 201 202 ELISABETH KRECKE AND CARINE KRECKE of Chicago in the early seventies. The purpose of this extremely successful and influential approach1 is precisely to promote a vision of law corresponding to economic criteria. One of the normative implications of this approach is the liberation of law from its metaphysical founding traditions which are asserted to be no longer adapted to the forward-looking spirit of our time. At least in this sense, an implicit deconstructivist ambition can be identified in the economic analysis of law,2 even though, in general, this theory clearly cor-responds to a modern rather than to a postmodern jurisprudence.3 The following questions will serve to delimit the scope of our analysis. What does deconstruction or defoundation concretely mean and imply, es-pecially in the context of law, and how far can it go? Can attention to legal foundations really be avoided and simply be replaced by strict considera-tions of management and calculation? Can law become simply a matter of economics, as asserted by the economic analysis of law? If all we have to be concerned with is efficiency (according to economics) and consequences (according to pragmatism), why do individuals keep developing deep-seated beliefs about justice, grounded in first principles (metaphysical or even re-ligious foundations)? And finally, why are these questions important and pressing ones, for legal scholars as well as for economic scientists? Our analysis attempts to bring to the fore the fact that, in spite of its strictly pragmatic (and anti-dogmatic) ambition, the law-and-economics movement has not avoided the inadvertent reappearance of normative schemes or metaphysical propositions into its own legal discourse. This theory has to cope with a dilemma that contemporary legal thought in general has to face: on one hand the liberation from metaphysical and dogmatic values seems to be predestined and even indispensable, and on the other, any attempt to avoid a discourse of foundations reveals itself as a highly difficult task. We will argue that even economic science, when entering the social arena, cannot get around the question of the potential dogmatism of its own discourse. In particular, we will underline a series of mostly unnoticed (normative) shifts of the economic analysis of law to propositions that sometimes fundamentally differ from its initial intention. It is important therefore to refer to the context of its emergence and in particular the difficulties which have marked the historical evolution of this theory up to the present day.4 This paper is constructed as follows. Section 2 attempts to show that the form of legal pragmatism as incarnated by the law-and-economics move-ment – and with greater reason the far more radical (but less influential) postmodern trend of anti-foundationalism – are the outcomes of a histor-ically intelligible and even inevitable process. The Anti-Foundational Dilemma 203 The question that arises from our critical evaluation of the importation of scientific methodologies into law will constitute the topic of the Section 3. Is economic science allowing legal thought to overcome the problematics of the metaphysical foundations that are supposed to ground the law? The recent combination of economic analysis of law with the cognitive sciences, which marks an ultimate step in the systematic takeover of law by social and management sciences, will be the object of the Section 4 in which the following questions will be invoked. To what extent can cognitive sci-ences help economists to suggest legal reforms? In particular, does behavi-oral economics provide a way for overcoming what we call the anti-foundational dilemma of law-and-economics? Finally, what is the normative status of these transplanted social sciences? 2. THE NECESSITY OF DEFOUNDATION 2.1. Historical Context (From Metaphysics to Pragmatism) The most influential incarnation of the traditional metaphysical way of conceptualizing the law has been the idea of natural law. For over two thousand years this concept has played a central role in shaping Western legal thought and institutions. Even though the notion of natural law has undergone important changes, and various versions have coexisted over the centuries, their common ground, the assumption of an eternal and immu-table justice supposed to be derived either from God (as pleaded by the Christian versions of St. Augustine and St. Thomas Aquinas) or from the nature of the universe (as argued later for instance by social contract mod-els5), remained largely unaltered. In other words, justice appeared as acces-sible exclusively through (God- or Nature-given) reason. In this sense, the concept of natural law can be seen as a metaphor of the principle of reason which, since Plato, has profoundly penetrated Western thought. In all of the various versions of natural law theories, overarching first principles of justice were supposed to ground political and legal institutions. Law produced in the legislative and judiciary processes, i.e. positive law, was deemed morally acceptable only in so far as it reflected those first principles or foundations. Providing a transcendental grounding for basic civil rights, natural law theories thus sought to infer a standard by which the morality or justice of laws could be evaluated, and as a consequence, by which laws that violate fundamental individual rights (such as security, freedom and prop-erty) could be rejected. 204 ELISABETH KRECKE AND CARINE KRECKE A particularly consequential event in the evolution of the natural law tradition toward a first questioning of the foundational principles has prob-ably been the separation of theology and law. This fundamental split (first seen in the medieval revolution of the interpreter in Roman law which occurred between the end of the 11th and the beginning of the 13th century) not only introduced into Western legal thought the idea of a possible de-ficiency of the divine foundation – God ceased to be considered as necessary to the legal function – but also, more importantly, opened the door to a malleability of the foundation.6 The secularized foundations became abstract, capable of integrating diverse contents. Ideas inherited by the enlightenment, such as inherent human dignity, inalienable human rights, autonomy or consensus can all be viewed as different contents or interpre-tations of the foundation. At the same time, they still incarnate the old belief in the existence of some universal, unchanging human nature or reason as a once-and-for-all foundation of law. With the rise of legal positivism and its subsequent generalization, the natural law principles largely ceased to provide a theoretical foundation for the legal system. Nevertheless, positivists did not turn away from the ques-tion of foundations. If God was dead, as said Nietzsche, then a God-sub-stitute had to be found. The struggle to identify a new foundation for judicial decision-making has remained one of the major preoccupations of positivists.7 Even if the modern discourse of legal positivism had a more scientific flavor than the premodern natural law approaches – the aim being to deduce objective legal principles from reality (legal cases), it remained, however, a fundamentally rationalist approach to law, relying (more than ever) on abstract reason or logic. In particular, the method of the legal science inspired by Langdell, which has strongly influenced the evolution of American common law after the Civil War, was profoundly Cartesian. The goal of this extreme version of legal formalism was to apply deductive reason in a quest to conceptualize a logically coherent system of legal prin-ciples and rules.8 An important implication of the malleability of the foundation (the fact that it could receive any content) has been the advent of the legal inter-preters’ ‘‘rational doubt of the foundation’’9 itself. While this doubt has for a long time been directed merely against the content of the foundation (when appearing obsolete), it nowadays seems to affect its very principle or logic. Under the combined effects of the ascendancy of legal positivism and the rise of scientific and management ideals, the notion of ‘‘foundation’’ in legal thought is increasingly vacillating and is, nowadays, frequently repl-aced by the problematics of defoundation. The deep-seated metaphysical The Anti-Foundational Dilemma 205 conceptions of justice are still being seriously challenged. As a consequence, some contemporary legal discourse is shifting from defoundationalism to anti-foundationalism that rejects any foundation of law. As early as the end of the 19th century, when the recourse to both natural law and legal positivism was still considered self-evident, Nietzsche under-took a destructive attack on metaphysical claims about God, Nature or Reason as universal foundations of law. More importantly, he provided a plausible explanation of why metaphysical law was destined to lose its grounding. Nietzsche indeed anticipated a historically inescapable process in Western philosophy toward nihilism, an evolution which he described as the logical consequence of an error of reason which consists in attributing in-trinsic values to things. This process is rooted, according to Nietzsche, in an artificial separation first posited by Plato, between experience and reason, the latter being given priority over the former. This separation between the physical and the metaphysical world has deeply conditioned Western legal thought up to the present day. Over time, as explains Nietzsche, some things have acquired the status of values-in-themselves, ideal values that are be-yond the world of experience. According to Nietzsche (1888, reprint 1998, pp. 108–109), ‘‘the ‘highest concept’, that is to say, the most general, the emptiest, the last cloudy streak of evaporating reality’’ is placed ‘‘at the beginning as the beginning’’. In this process of mythification, some values have been claimed to be supreme or absolute (such as Justice, Truth, Causality, Liberty, Progressy). Not only is it impossible to derive these categories of reason from experience, but, as emphasized by Nietzsche, the whole of experience rather contradicts them (p. 110).10 Because it has con-fused the being (Sein) with its justification or foundation (Grund), Western thought has inevitably exposed itself to deception: the being annihilates itself precisely by transforming into value.11 Indeed, extreme overrating of things must one day lead to devaluation. Nihilism appears when the dom-inant values crumble and nothing is left.12 For Nietzsche, it was just a question of time before Western civilization, in which the quest for truth has been inculcated for so long, would end up using the weapon of truth against the value of Truth. No value could resist indefinitely to the suspicion that metaphysical reason has taught us. This latent process of demoralization described by Nietzsche, profoundly affecting the literature, philosophy and politics of modern Europe, culminated in the late 19th century. The rise of massive industrialization and the dramatic progress of science indeed rendered more and more illusory the belief in supreme or absolute values. In legal thought, a crisis of foundations13 appeared with some delay, but with no less intensity, particularly in American ... - tailieumienphi.vn