Posner’s Economic Approach to Rights – A Descriptive to Normative Response to Leiter

Adjudication, rights and justice are all interrelated issues. In “In Praise of Realism (and Against ‘Nonsense’ Jurisprudence),” philosopher Brian Leiter argues in favor of Judge Richard Posner’s economic approach to law and against philosopher Ronald Dworkin’s interpretative approach to law. For this paper, I argue against Leiter by specifically focusing on the issue of rights. I begin with a cursory explanation of rights, followed by explanations of Posner’s and Dworkin’s theories. Next, I outline Leiter’s argument which distinguishes between Posner’s descriptive to normative theory and Dworkin’s normative to descriptive theory. I show how Dworkin’s moralist consequentialist conception of rights views the recognition of rights as being necessarily instrumental for the common good. I argue this is opposed to Posner’s consequentialist conception of rights which requires rights, in order to be recognized, achieve the end of being conducive to wealth maximization. I ultimately argue against Leiter by asserting the issue is not whether or not a normative theory can achieve the desired behaviors it promotes. Instead, the paramount issue is determining what our society’s conception of justice is and what rights, thus behaviors, we want to promote in our society.

The Basic Concept of Rights

Philosopher Leif Wenar asserts rights are understood as entitlements for individuals to behave or be certain ways, and conversely, are restrictions on others to not behave or be certain ways toward individuals.[1] A society’s views about rights shape the society’s government, laws and morality.[2] Despite much debate about the nature and function of rights, rights are generally held to have “special normative force.”[3] Rights are strong, overriding reasons which are uniquely able to affect the actions taken by individuals, society and the government.[4]

Wenar asserts deontological and consequentialist approaches have been taken to determine and justify what rights should be recognized.[5] This paper focuses on the consequentialist approach which asserts “that respect for particular rights is a means for bringing about some optimal distribution of interests.”[6] In other words, the approach asserts rights have instrumental value to achieving a higher end.

Posner’s Economic Approach to Law

Posner asserts his approach rests on a “basic assumption of economics,” which is “that people are rational maximizers of their satisfactions-all people […] in all of their activities […] that involve choice.”[7] Rational maximizers seek to maximize “their individual satisfactions, and in turn, respond to incentives.”[8] Rational maximizers seek efficiency, meaning, they seek to expend the least amount of their resources in order to acquire the most amount of satisfaction and they respond to incentives which deter some types of behaviors or promote other types of behaviors.[9] Wealth maximization on a larger scale occurs when individual rational maximizers together make up an economic society built upon efficiency and incentives in which the wealth of the society as a whole is maximized.[10] Satisfaction, for Posner, includes but is not limited to monetary satisfactions, because money can be a means to the end of non-monetary satisfaction.[11] The non-monetary satisfactions would all be assigned a monetary value based on what people would be willing to pay for the satisfaction.[12]

Posner’s concept of justice arises out of the issue of rights.[13] Under the concept of wealth maximization, all rights would be given market values for their ability to maximize the wealth of the society as a whole.[14] If a particular right was found to be inefficient to an unacceptable extent and was unable to be made more efficient through incentives, then society, in order to maximize its wealth, could disregard that right.[15] Therefore, whatever maximizes wealth for society as a whole is considered justice.[16]

For Posner, justice is grounded in the wealth maximization of society as a whole. Laws and adjudication must provide incentives for rational maximizers to maximize the wealth of society. If an incentive and a right conflict, and the incentive is required for wealth maximization, then the right can be disregarded. Therefore, justice is whatever maximizes the wealth for society as a whole, and if a right inefficiently hinders wealth maximization, then it can be disregarded. For Posner rights are luxuries which only rich societies who have attained a superfluous level of wealth maximization can afford.[17] For societies striving to maximize wealth, such rights may need to be disregarded. For Posner, a society may have to disregard rights in order to maximize wealth, wealth which is required for rights to be established at all.[18]

Posner’s approach to adjudication bases “judicial action in instinct rather than analysis,” yet judges’ should remain “informed through empirical inquiry.”[19] He asserts judges’ have a “right to exercise discretion” in their proceedings when legal precedent is ambiguous.[20] Posner argues “the exercise of discretion and the weighing of consequences” is required when judges are faced with competing “semantically plausible interpretations of a text, in circumstances remote from those contemplated by its drafters.”[21] Posner’s view of adjudication asserts it should involve the consideration of the consequences of all applicable alternative courses of action. The course of action which most maximizes the wealth of society is the best decision, because the more wealth a society has means the more rights it can afford.

Dworkin’s Interpretative Approach to Law

For Dworkin, law is necessarily interpretative and multifaceted, and as such contains such attributes as being self-reflective, protestant, and constructive.[22] Law, being self-reflective, means law requires reflection upon the nature of the “political structure of [the] community.”[23] In being protestant, law places responsibility on the citizen to reflect on shared principles, obligations to those principles, and how obligations are to be met in the changing society.[24] Law, being constructive, means “to lay principle over practice to show the best route to a better future, keeping the right faith with the past.”[25]

Dworkin asserts judicial decisions should be reached “by interpreting the political structure of their community,” “by trying to find the best justification […] in principles of political morality, for the structure as a whole.”[26] Per Dworkin, the integrity of law is based in the adjudication and application of law in concert with interpretive and constructive principles. Dworkin states “propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the law.”[27] A judicial ruling must consider the principles of society, and how rulings will impact society and its views of legal practice given those principles.[28] Judges should look to the historical principles of law only to justify the principles “in an overall story worth telling now,” a story which affirms “that present practice can be organized by and justified in principles sufficiently attractive to provide an honorable future.”[29] Dworkin establishes “two elements of a successful interpretation” regarding a legal issue.[30] The first element requires that the interpretation of any legal issue “fit” and “cohere” “with existing legal” principles regarding the issue.[31] Second, the interpretation “must present” the principles “in the best possible moral light.”[32] Both elements provide justification, including “moral justification” for the society’s principles.[33]

For Dworkin, judges must thoughtfully consider what has been written before them, and then apply their own interpretations of the text based on layers of societal, political, and legal meaning and context.[34] Judges must adjudicate constructively in order to continue the story of law in a way that fits and coheres with the principles of the past, the present and the optimism for the future with the goal of making the story the best possible for society.[35] Adjudication is both interpretative and constructive because it considers the principles of the society, including political, social, and legal principles, and then forms a ruling based on what will “fit” and “cohere” with the principles, which thus provides “moral justification” for the principles by presenting the principles in the “best possible moral light.”[36] Dworkin’s theory makes the judge a part of the whole of society, acting as a caretaker through thoughtful interpretation and then constructive application of principles which reflect society’s interests. In this way, the judge is not outside the realm of the citizenry, passing down rulings unreflective of social input, but instead deeply involved in the continuum of social discourse which reflects the principles and values of the society as a whole.

Leiter’s Distinction between “Moralists” and “Realists”

In favor of Posner’s theory, Leiter argues the dispute between Posner and Dworkin is essentially a dispute between “moralist” and “realist” conceptions of adjudication. He asserts the dispute is “between those whose starting point is a theory of how things (morally) ought to be versus those who begin with a theory of how things really are.”[37] Leiter asserts Dworkin’s moralist views start with a moral, normative, theory and then use the theory to try to explain what the reality of adjudication descriptively is, which provides the justification for a moral theory of adjudication.[38] Leiter argues Dworkin’s theory of “constructive interpretation” assumes, when deciding legal issues, there exists an independent fact of the matter which judges uncover “by figuring out which result would cohere with the moral principles that best explain and justify the prior official acts.”[39] Leiter asserts Dworkin’s theory regards “the recognition of apparently new rights […] as making a kind of ‘moral sense’ […] as being morally justified exercises of coercive power by virtue of corresponding to the demands of constructive interpretation.”[40]

The problem, asserts Leiter, is Dworkin’s theory gives a false account of what motivates judicial decision making because judges don’t merely “invoke moral and political principles in deciding hard cases.”[41] Therefore, Leiter states, “Dworkin is not entitled to his assumption that a theory of adjudication must show the exercise of coercive power by courts to be morally justified.”[42] Leiter argues Dworkin’s theory asserts the justification for legal recognition of rights rests on moral principles. But, argues Leiter, if judges are not considering moral principles to decide whether a right should be recognized or not, then moral principles cannot be justification for the decision. Therefore, per Leiter, there is no reason to think judicial decisions are, will or should be morally justified.[43]

Leiter asserts Posner recognizes judges may say they are determining cases, thus the recognition of rights, based on moral or political principles, but the reality is “‘actual practices,’ […] are better described by a variety of theories that emphasize their political attitudes, their strategic behavior, […] their behavior as ‘rational, self-interested utility maximizer[s],’ and, most importantly […] their ‘preconceptions’ which shape, often subconsciously, their ‘responses to uncertainty’ in the face of new cases.”[44] Posner, per Leiter, is a realist who starts with an accurate descriptive theory of the reality of adjudication and the psychological motivations for judges, then designs a normative theory in order to maximize the satisfactions and wealth of society.[45] Leiter states, “Realists want to tell us what really goes on when courts decide cases” whereas “Moralists want to understand adjudication in terms that they adjudge morally defensible.”[46] Leiter argues Dworkin’s theory fails to adequately describe the reality of adjudication, whereas, Posner’s does.

If the reality is that judges and citizens act primarily as self-interested, rational wealth maximizers, and adjudication is not and does not need to be morally justified, then asserts Leiter, the moralists’ normative to descriptive theory cannot effect the moral change the moralists want. According to Leiter, “an idea can give rise to motivation and action only if it engages our preexisting desires or emotions.”[47] Leiter argues moralist normative theories cannot be a viable motivator to change human action, because they do not adequately engage human nature.[48] He asserts moral normative theories must strive to change individual’s emotions about an issue, but since emotions are irrational, they cannot be changed with any rational argument.[49] As evidence, he offers examples of wealthy egalitarians who don’t donate their excess wealth.[50] He asserts humans are predisposed to be self-interested rational wealth maximizers of their satisfactions, and Posner’s theory addresses this. Therefore, Posner’s theory is the best option to effect change in human behavior.

The Disagreement between Posner and Dworkin

Posner’s theory is a realist and consequentialist approach to the recognition of rights which makes rights a variable in an economic algorithm. Rights are recognized if they achieve wealth maximization for society, wealth maximization which is required for rights to exist at all. Conversely, Wenar asserts, under Dworkin’s moralist view, “Rights give reasons to treat their holders in certain ways or permit their holders to act in certain ways, even if some social aim would be served by doing otherwise.”[51] Further, Wenar states “Dworkin’s metaphor [“rights as trumps”] suggests that rights trump non-right objectives.”[52] Regarding conflicts between individual rights and the pragmatic good of society, Dworkin asserts the legal system “must make decisions that overall serve a justifiable mix of collective goals and nevertheless respect whatever rights citizens have.”[53] Wenar compares Dworkin’s theory to John Stuart Mill’s assertion regarding the right of freedom of expression, which asserts the majority who shares an opinion is not justified in silencing anyone who solely holds a different opinion.[54] Dworkin’s theory is, like Posner’s, consequentialist, but contrary to Posner, Dworkin treats the recognition of rights as being necessarily instrumental to the common good.[55]

Applying Leiter’s argument, it is a distinction between a moralist and a realist conception of rights; a distinction between a normative theory being applied to a descriptive theory versus a descriptive theory being applied to a normative theory. Posner, as a realist, starts with a descriptive theory of the way people and law are, and then applies it to how law and adjudication ought to be. Posner asserts the recognition of rights has always depended on the consequences of such recognition, thus always should. Moralists, such as Dworkin, start with a normative theory of how law and adjudication ought to be, and then apply it to the way the world is. Consequentialist moralists assert the recognition of rights ought to, based on theoretical reasoning, lead to the common good, thus, the recognition of rights does lead to the common good.[56]

Under Dworkin’s moralist view, the recognition of rights is necessarily instrumental to the common good, and thus is just. Posner’s view focuses on the wealth maximization of society as being required for justice. Under Posner’s view the recognition of rights depends on their instrumentality to the higher good of society’s wealth maximization. The distinction is between recognizing rights because they in themselves promote the highest good versus only recognizing rights if they promote the highest good.

Why Should We Accept Posner’s Normative Theory of Law?

Posner and Leiter offer different descriptive to normative arguments for accepting Posner’s approach. Posner’s argument asserts individuals in society are rational, self-interested, wealth maximizers. The purpose of law has traditionally been to maximize the wealth of society. Rights are luxuries, in that they have traditionally been recognized only when doing so has been economically efficient or when the cost of observing the right is acceptable to the public.[57] A legal system designed to maximize the wealth of society enriches the society and an enriched society is a society which has more rights.[58] Therefore, in order for rights to be recognized, the society must have a certain level of affluence. Therefore, the economic approach ought to be applied to law.

Leiter offers a different argument advocating the adoption of Posner’s theory. Leiter’s argument begins the same as Posner’s by asserting individuals in society are rational, self-interested, wealth maximzers; human nature is to be self-interested. Leiter’s argument then differs from Posner’s by asserting a normative theory needs to sufficiently appeal to human nature in order to cause changes in behavior.[59] Therefore, a normative theory which does not sufficiently appeal to human nature will never cause changes in behavior. There is evidence moralist normative theories do not sufficiently appeal to human nature in order to cause changes in behavior.[60] The economic approach to law does sufficiently appeal to human nature in order to cause changes in behavior. Therefore, the economic approach ought to be applied to law.

A Descriptive to Normative Response

Taking a cue from Posner and Leiter, I would like to look at the concept of rights descriptively. Perouse any news source and you will find in abundance talk regarding gay rights, gun rights, abortion rights, animal rights and more. All of this talk amounts to various conceptions of justice. When people generally invoke the concept of a right they do so in order to assert an injustice is being done by the right not being observed or justice is being done by the right being observed. Whether or not the claimed right is recognized, generally people seem to imply if something is a right, then it has value outside of it being recognized. Generally people don’t talk about rights as being luxuries or commodities they are privileged to have, but instead, they assert if something is a right, then it must be recognized otherwise an injustice is being committed. Further, once a right is recognized, people generally believe it would be an injustice for the right to subsequently be unrecognized.

Such descriptive conceptions of rights are more in line with Dworkin’s theory of rights as being necessarily instrumental for the common good as opposed to Posner’s theory which treats rights as luxuries and commodities. Dworkin’s theory treats rights as being directly connected with social values and principles. The adjudication process is just, for Dworkin, when the judge partakes in a social discourse in order to establish the recognition of rights which meet society’s values and principles and the recognition of rights as such promotes the overall common good. Posner’s theory treats rights as dispensable commodities society has to be willing to pay for. Justice, for Posner, is when the judge uses an economic algorithm to determine whether a certain right should be recognized, and if need be, the right can be disregarded. Wealth maximization, for Posner, is the common good. The law and recognition of rights based on the concept of wealth maximization is more than just a descriptive account, it is also an argument for how it ought to be based on Posner’s own conception of justice. Posner’s and Lieter’s argument assumes (1) we are all born self-interested wealth maximizers, and (2) we cannot help but be self-interested wealth maximizers. I question what role social conditioning and freewill plays in this capitalist economic assumption. Even if we grant Leiter and Posner people are self-interested wealth maximizers, is this the sort of behavior we ought to promote to get us closer to what we conceive justice to be?

The purpose of legal normative theories is to get people to strive toward a conception of justice. Adjudication is always toward the normative, because legislation is always toward the normative. Whatever theory of adjudication one holds, it is always necessarily toward justice; toward how it ought to be. If something is determined to be a right, its recognition is generally held to be justice. The real issue is not that a normative to descriptive theory cannot promote the desired behaviors. If we are speaking descriptively and not theoretically, we have no way of ultimately knowing the impact of normative theories on behavior. It would be impossible to quantify if and how people are impacted by normative theories. Even if normative theories don’t immediately get the desired results, it could be argued the promotion of the principles in normative theories get people to strive toward emulating behaviors they otherwise would not have, because the first step to changing behavior is recognizing it is wrong.

The real issues are all normative: What is the conception of justice we want to strive for? How should we determine the recognition of rights – by self-interested wealth maximization or a moral conception of the common good? As rights promote certain types of behaviors, what behaviors do we want to promote via the recognition of rights to get us closer to our conception of justice? These issues seek to strive for more than what currently is, thus require a foundation in the normative. We might be self-interested wealth maximizers now, but justice means to continue to strive for more than what we are, even if sometimes we fail.[61] If justice is generally taken to mean the recognition of rights as being necessarily instrumental to the common good, then Dworkin’s theory more closely attends to this. Ultimately, the questions noted require consideration by each individual in society in order to determine whether Posner or Dworkin is right, and even this is more in line with Dworkin’s theory because it places the normative issues inside of the continuum of social discourse.

Summary and Conclusion

Posner argues rights are luxuries and commodities which have market values and if any right is economically inefficient and cannot be made more efficient, then the right can be disregarded. Posner’s view on rights is consequential in that rights must be conducive to wealth maximization in order to be recognized, and thus be just. Dworkin argues rights are necessarily instrumental to the common good and justice lies in an interpretive and constructive adjudication process based on society’s shared principles and values. Leiter argues normative to descriptive theories, such as Dworkin’s, fail because they cannot successfully change behaviors. I have argued, looking at Leiter’s claim descriptively, we cannot say normative theories can’t change behaviors. Further, all theories of adjudication strive toward a conception of justice; toward the normative. As such, the paramount issues each individual must address is not how adjudication and legislation currently is, but how it ought to be and what we ought to do to promote behaviors, i.e. recognize rights, to get us closer to our conception of justice. It is up to society, then, to determine if Posner or Dworkin is right.

Works Cited

Butler, Brian Edgar. “Law and Economics.” Internet Encyclopedia of Philosophy. January 9, 2011. http://www.iep.utm.edu/law-econ/ (accessed November 4, 2012).

Dworkin, Ronald. “Law as Integrity.” In Philosophical Problems in the Law, 5th Ed., by David

M. Adams, 129-137. Boston: Wadsworth Cengage Learning, 2013.

—. “Richard J. Arneson, Faculty at UCSD.” Dworkin – Taking Rights Seriously. 2006.

http://philosophyfaculty.ucsd.edu/faculty/rarneson/DWORKINTakingRights Seriously.pdf (accessed November 2, 2012).

Himma, Kenneth Einar. “Philosophy of Law.” Internet Encyclopedia of Philosophy. April 19, 2009. http://www.iep.utm.edu/law-phil/ (accessed November 2, 2012).

Leiter, Brian. “In Praise of Realism (and Against “Nonsense” Jurisprudence).” The Georgetown Law Journal. 2012. http://georgetownlawjournal.org/files/2012/03/Leiter1.pdf (accessed December 2, 2012).

Linder, Doug. “Exploring Constitutional Law.” Theories of Constitutional Interpretation. 2012. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html (accessed December 2, 2012).

Posner, Richard. “The Economic Approach to Law.” In Philosophical Problems in the Law, 5th Ed., by David M. Adams, 151-160. Boston: Wadsworth Cengage Learning, 2013.

—. “The Right of Privacy.” Georgia Law. April 1, 1978. http://digitalcommons.law.uga.edu/cgi/ viewcontent.cgi?article=1021&context=lectures_pre_arch_lectures_sibley&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fhl%3Den%26q%3Drichard%2Bposner%2Bright%2Bto%2Bprivacy%26btnG%3D%26as_sdt%3D1%252C4 (accessed December 2, 2012).

Wenar, Leif. “Rights.” Stanford Encyclopedia of Philosophy. July 2, 2011. http://plato.stanford.edu/entries/rights/ (accessed November 2, 2012).

[1] Leif Wenar, “Rights,” online

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Posner via David M. Adams, Philosophical Problems in the Law; page 151

[8] Brian Edgar Butler, “Law and Economics,” online

[9] Ibid.

[10] Posner via Adams, pg. 155-156

[11] Ibid. pg. 152-153

[12] Ibid.; See also Posner, “The Right of Privacy,” pg. 394

[13] Ibid. pg. 156

[14] Ibid. pg. 156-57

[15] Ibid.

[16] Ibid. pg. 154

[17] Class, Philosophy of Law, Prof. Karen Mizell, Ph.D. Class notes, October 9, 2012

[18] Posner via Adams, pg. 157. Also PHIL 3810 class notes, October 9, 2012, regarding justice equaling wealth maximization for Posner

[19] Ibid.

[20] Posner, “What am I? A Potted Plant?” via Linder, online

[21] Ibid.

[22] Dworkin via David M. Adams, Philosophical Problems in the Law, pg. 135

[23] Ibid; Himma, online

[24] Ibid.

[25] Ibid.

[26] Himma, online

[27] Dworkin via Adams, pg. 130

[28] Ibid. pg. 130-131

[29] Ibid. pg. 131

[30] Himma, online

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Dworkin via Adams, pg. 132

[35] Ibid.

[36] Himma, online

[37] Brian Leiter, “In Praise of Realism (and Against “Nonsense” Jurisprudence),” pg. 867

[38] Ibid. pg. 868; 871-872; 876-877; 889

[39] Ibid. pg. 871

[40] Ibid. pg. 872

[41] Ibid. pg. 871

[42] Ibid. pg. 877

[43] Ibid.

[44] Ibid. pg. 872; 875

[45] Ibid. pg. 875

[46] Ibid. pg. 874

[47] Ibid. pg. 891

[48] Ibid.

[49] Ibid. pg. 892

[50] Ibid. pg. 891

[51] Wenar, online. Also see Dworkin, “Taking Rights Seriously,” online. Dworkin states “a man has a moral right against the state if for some reason the state would do wrong to treat him in a certain way, even though it would be in the general interest to do so […] the sense of rights I propose […] simply shows a claim of right to be a special, in the sense of a restricted, sort of judgment about what is right or wrong for governments to do.”

[52] Ibid.

[53] Dworkin, “Taking Rights Seriously,” online

[54] Ibid.

[55] Ibid.

[56] I realize this may sound absurd (because the theoretical claim moral theories leads to changes in behavior contradicts the descriptive facts which show otherwise for Leiter), but I think it accurately reflects Leiter’s position on the moralist theory. I think this is exactly Leiter’s point in calling Dworkin’s theory “nonsense.”

[57] Posner via Adams, pg. 157-159

[58] Ibid. pg. 159

[59] Leiter, pg. 891

[60] Ibid. regarding the exchange between G.A. Cohen and Thomas Nagel

[61] Immanuel Kant makes a similar argument when he states: “I may thus be permitted to assume that, since the human race is constantly progressing in cultural matters (in keeping with its natural purpose), it is also engaged in progressive improvement in relation to the moral end of its existence. This progress may at times be interrupted but never broken off. […] I am a member of a series of human generations, and as such, I am not as good as I ought to be or could be according to the moral requirements of my nature” – “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice,’” in Political Philosophy: The Essential Texts, Ed. Steven M. Cahn, pg. 523. Kant is approaching his argument from the foundation of God as the “wise creator ruler” which gives moral “natural purpose.” My argument differs in that it is based on what the nature of adjudication, and thus justice, is.