Peter Cserne
Consequence-based arguments in legal reasoning: a jurisprudential preface to law and economics
Cserne, Peter
Authors
Abstract
One of the persistent problems surrounding the discipline of law and economics is the role of economic arguments in legal reasoning. The problem has been extensively discussed in the literature but has not been ultimately solved. The present paper is a contribution to this ongoing discussion. The argument goes as follows. First, I will argue that insights from law and economics, to the extent that they claim to be directly relevant for legal reasoning, should carry a jurisprudential preface that states that this very relevance is limited and conditional. Secondly, I will introduce the concept of consequence-based reasoning and show that the typical normative claims of law and economics based on economic efficiency can be interpreted as consequence-based arguments of a special kind. Finally, in the analytical core of the paper, the conceivability, feasibility and desirability of the judicial appreciation of general social consequences of legal decisions will be considered. Referring to the philosophical, jurisprudential and institutional dimensions of the issue I will argue that in a modern constitutional democracy the scope of consequence-based judicial reasoning is limited mainly by the expertise of courts. A more general implication of this analysis is that the impact of law and economics scholarship on law can only be understood through a close look at legal reasoning in general and consequence-based arguments in particular.
Citation
Cserne, P. (2012). Consequence-based arguments in legal reasoning: a jurisprudential preface to law and economics. Law and Philosophy Library; Efficiency, Sustainability, and Justice to Future Generations (31-54). Springer Verlag. https://doi.org/10.1007/978-94-007-1869-2_2
Online Publication Date | Aug 17, 2011 |
---|---|
Publication Date | 2012 |
Deposit Date | Dec 19, 2014 |
Journal | Efficiency, sustainability, and justice to future generations |
Print ISSN | 1572-4395 |
Publisher | Springer Verlag |
Peer Reviewed | Not Peer Reviewed |
Volume | 98 |
Pages | 31-54 |
Book Title | Law and Philosophy Library; Efficiency, Sustainability, and Justice to Future Generations |
ISBN | 9789400718685; 9789400718692 |
DOI | https://doi.org/10.1007/978-94-007-1869-2_2 |
Public URL | https://hull-repository.worktribe.com/output/370939 |
You might also like
Paternalism and contract law
(2018)
Book Chapter
Les nudges sont-ils des outils extra-juridiques?
(2018)
Book Chapter
Behavioural law and economics as litmus test
(2017)
Journal Article
Stílus a jogban: a bírói érveléstől a stilus curiae-ig és vissza
(2017)
Book Chapter
Downloadable Citations
About Repository@Hull
Administrator e-mail: repository@hull.ac.uk
This application uses the following open-source libraries:
SheetJS Community Edition
Apache License Version 2.0 (http://www.apache.org/licenses/)
PDF.js
Apache License Version 2.0 (http://www.apache.org/licenses/)
Font Awesome
SIL OFL 1.1 (http://scripts.sil.org/OFL)
MIT License (http://opensource.org/licenses/mit-license.html)
CC BY 3.0 ( http://creativecommons.org/licenses/by/3.0/)
Powered by Worktribe © 2024
Advanced Search