Law and Economics: Science or Politics
![handle is hein.journals/hoflr8 and id is 931 raw text is: LAW AND ECONOMICS:
SCIENCE OR POLITICS?
Morton J. Horwitz*
For more than one hundred and fifty years, the slogan, law is
a science has dominated American legal thought. The economic
analysis of law is only the most recent claimant to draw upon the
prestige of the natural sciences in the effort to create a system of
legal thought that is objective, neutral, and apolitical.
Law-and-economics emerges to fill the intellectual vacuum left
by Legal Realism. It is one of the many responses to the Realist
critique of all attempts to create a completely autonomous and in-
temally consistent realm of pure law. Like vulgar Marxism, law-
and-economics treats law as superstructure, merely reflecting
what is real in the base of economic rationality.
I have the strong feeling that the economic analysis of law has
peaked out as the latest fad in legal scholarship and that it will
soon be treated by the historians of legal thought like the writings
of Lasswell and McDougal. Future legal historians will need to ex-
ercise their imaginations to figure out why so many people could
have taken most of this stuff so seriously.
It is my assertion that only the prestige of the sciences could
have brought law-and-economics such prominence during the past
two decades. And I take Professor Posner's recent paper, on
Wealth Maximization,1 as a dramatic sign that the scientific preten-,
sions of the economic analysis of the law are rapidly crumbling.-
Once the ground of debate shifts to social theory-as the cumula-,
tive assaults on Posner's position finally have forced him to
acknowledge-it is only a short time before the main attraction of
efficiency analysis-the promise of a single scientific right answer
-will begin to fade into a quaint and nostalgic past.
It was science that gave the cloak of legitimacy to the
* Professor, Harvard Law School.
1. Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103
(1979) [hereinafter cited as Posner, Utilitarianism]. See also Posner, The Ethical and
Political Basis of the Efficiency Norm in Common Law Adjudication, 8 HOFSTRA L.
REV. 487 (1980).](ViewImageLocal?handle=hein.journals/hoflr8&div=39&collection=journals&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Law and Economics: Science or Politics
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most