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New Left Review 65, September-October 2010


Tor Krever

CALLING POWER TO REASON?

Jurists were once revered as priests, high guardians of the law endowed, in the Roman adage, with ‘knowledge of what is equitable and just’. If such dicta continue to adorn many a courthouse and law-faculty frieze, jurists in growing numbers pray to a new omnipotence: not equity and justice, but economic efficiency. The hegemony of the ‘Law and Economics’ movement now extends far beyond its North American homeland. Its apostles take as their methodological starting point the rational-choice framework of neo-classical economics: all human behaviour can be explained as the product of individual agents making rational, utility-maximizing decisions, based on a stable set of preferences. Legal rules are evaluated—ideally, designed—with reference to a calculation of alternative efficiency outcomes; society comprises the sum of individual utilities. On law-school campuses today, justice has become virtually synonymous with optimal market allocation.

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