This seminar will explore the quite different understandings of rationality that are in play in the economic theory of rational social choice and in legal theory. The seminar will begin with the rational social choice framework and then relax some fundamental axioms of that framework to comprehend what is rational in the law. Topics for analysis include the relationship between law and morality, the significance of legal process and publicly articulated reasons for decisions, and the responsibility of purposive and rational organizations like corporations.
This seminar will explore the quite different understandings of rationality that are in play in the economic theory of rational choice and in legal theory. While the two sorts of theory loosely understand the rationality of a set of decisions in the same way, namely, as an “ordered particularity”, the notion of ordering is crucially different between the two. In economics, no matter how diverse the motivations for choice might appear to be, the idea of an ordering remains somewhat single-minded and “quantitative”, the sort of thing over which a chooser can maximize. But in law the notion of an ordering is less quantitative and more “categorical”, the sort of thing that informs an understanding. One of the challenges in our classes will be to comprehend the intellectual difference between these two accounts of rationality in a way that makes each simultaneously accessible to us and to each other, that is, within a common conceptual framework. While I propose to begin with the rational social choice framework to accomplish this, it will quickly become apparent that we will have to relax some fundamental axioms of that framework if we are to comprehend what is rational in the law. Along the way, I hope to provide a rational choice theoretic understanding for why there must be some sort of relationship between law and morality, for why legal rules are categorical (yet defeasible), for why some legal issues are treated in the order that they are, for why publicly accessible and articulated reasons are provided in support of legal decisions and why this might be a useful practice in social institutions more generally, and for why some organizations, like corporations, might be viewed as purposive and rational and, therefore, responsible for what they do.