In addition criticism of the advocates of the law and

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Unformatted text preview: roached unless there is a more systematic defense. Posner is difficult to accept wholesale, especially when considering the historicity of t common law, the evolution of the common law doctrines and that the common law was 96 Chappel v Hart [1998] H C A 55, (2 September 1998), at 19-23, per Kirby J ; Crimmins v Stevedoring . Industry Finance Committee [1999] HCA 59, (10 November 1999), at pp. 15-16, per McHugh 97 Posner 1992, P. 252. 300 formed in a time w h e n there were competing social values which needed to b e placated, especially when the various influences of the disparate courts are considered. That a 'common law' was formed at all may strike some as miraculous, but to assert that the common law has, and by implication has always had, economic underpinning is to ignore the historic facts as to its formation and continuance. Justice, the aim of the King's Courts from early medieval times, was not usually compromised, covertly or otherwise, by economic considerations, and most certainly not by the overt economically oriented principles which Posner asserts. In addition, criticism of the advocates of the law and economics movement can be brought into other areas. Posner dismisses criticism that lawyers' and judges' are not economic in their approach to the common law as a "trivial objection", and may also give too much emphasis to the perceived laissez-faire posture of 19 century English government. Atiyah, has cautioned against this, even going so far as to concur with Watson that "the idea of an age of laissez-faire is a myth, 'one of the grander misunderstandings of intellectual history'."98 Posner concedes other criticism, but nevertheless, does not answer his critics completely. Kronman went so far as to deprecate Posner's wealth maximisation principle (which he asserts Posner holds to be a blend of Kantian individual autonomy and utilitarianism) as "exhibit[ing] the vices of both and the virtues of neither".100 Posner, however, retorts that Kronman 98 Atiyah, P. S. 1979, The Rise and Fall of Freedom of Contract, p. 234; Watson, G. 1973, The English Ideology London, p. 69; Cameron, A . 1989, A Concise Economic History of the World, Oxford University Press, p. 213. 99 E.g. Posner, R. A. 1980b, "The Ethical and Political Basis of the Efficiency N o r m in C o m m o n Law Adjudication", [1979-80] 8 Hofstra Law Review 487'. 100 K ronman, A. T. 1980, "Wealth Maximization A s a Normative Principle", (1980) 9 Journal of Legal Studies 227-242. 301 misunderstands his perspective with respect to utilitarianism and that he rejects it for its difficulty in objective measurement.101 It is conceded, however, that in contract, Posner and the associated models may have more apparent validity than in most other areas of common law. This is largely because of the ability of contractors to bargain over terms of contracts, in effect making their ow law. The underlying premise of contract enforcement is that the contractors are in a position, more than any other party, to know what is in their own best interests. This is not to say, however, that the common law, in a loose sense, is overtly non-economic or that judges have an inherent bias against efficiency. It is only to point out that the adversarial system in the common law countries has far more than economic pressures which comprise its working mechanism in the social sphere. Efficiency, therefore, defined as the search for the highest social wealth, can be seen to be part of the matrix o underlying public policy, but the overt interpretation of the common law as economic, or driven by an underlying public policy of efficiency, is certainly problematic. In addition to adopt the stance of Posner, Becker, Rubin, and Priest, is to adopt a tacit presuppositio that efficiency equals justice, a congruence which is difficult, if not impossible, to acc Posner goes to great lengths to establish that indeed this is a congruence to be accepted. Dworkin succinctly criticised Posner's defence and asserted that justice and social wealth were two "distinct, sometimes competing social virtues". 11 0 Posner, R. A. 1980a, "The Value of Wealth: A C omment on Dworkin and Kronman", 9 Journal of Legal Studies (1980) 243-252 at 251. 102 Dworkin, R. M. 1980, "Is Wealth a Value?", [1980] 9 Journal of Legal Studies 191 at 203; also Dworkin, 1980, " Why Efficiency?", [1979-80] 8 Hofstra Law Review 563-590. 302 Dworkin's objection is echoed b y Calabresi,103 a nd in a tacit w a y by H ovencamp, w h o reiterates Dougan and Posner's example of the miserable, yet rich old grandfather who is murdered by his grandson, who takes great pleasure in killing the old man. Although the devolution of the grandfather's great wealth upon the old man's rather shrewd entrepreneurial sons and daughters would probably increase social wealth, and certainly increase the happiness of those associated with the miserable old man, it cannot...
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