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Sen and the Hart of Jurisprudence: A Critique of the Economic Analysis of Judicial Behavior |
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Neil S. Siegel |
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| This Comment argues that economic analysis
provides an inadequate account of judicial
behavior because economic models are incompatible
with a jurisprudence that recognizes basic rule-of-law
values. Whereas standard economic theory is
committed to thinking of a judge as exclusively
self-interested, two fundamental problems with
this conception exist. First, as application of
Amartya Sen's critique of the behavioral
foundations of economic theory to judicial
behavior reveals, the decision of a judge who
meets her judicial obligations may fail to
maximize her self-interest. Second, even if the
self- interest-maximizing decision coincides with
the behavior that her judicial obligations
require, economic models still fail to provide an
accurate explanation of judicial decision making.
This inability is attributable to economic
theory's failure to recognize the distinguishing
feature of judicial behavior--what H.L.A. Hart
compellingly describes as relating to a rule from
the internal point of view. In Overcoming Law, Richard Posner anticipates this Comment's challenge to the economic analysis of judicial behavior, but significant problems exist with his attempt to meet it. Because Posner assumes away the problem of obligation and reduces judicial motivation to self-interest, his method neglects Hart's concern with the internal aspect of obligatory social rules. It is thus incompatible at the theoretical level with the liberal ideal of the rule of law. Additionally, Posner's approach is anti-empirical by methodological necessity. Thus, his assertions notwithstanding, his theory of judicial behavior is no more empirically grounded than the liberal jurisprudence whose conception of the judge he derides. Nevertheless, this reality does not absolve adherents of liberal legal philosophy from the responsibility of empirically testing their own understandings of judicial behavior. Rather, researchers need to test empirically both Hart's and Posner's accounts of why judges follow institutional rules. In particular, in addition to observing judicial behavior, investigators need to persuade judges to introspect about and communicate their experiences of themselves and each other on the bench. |
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Copyright
© 1999 by California Law Review, Inc. |
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