The normative foundations of law are sometimes rooted in economic efficiency and other times rooted in social justice concerns. How do these normative foundations vary, and are the variations justifiable?
Legal scholarship has a very complex and awkward relationship with the idea of 'efficiency' for two main reasons. First of all, we like to think that we are promoting social justice in all its forms, as this does help to give the impression that we are very moral and upstanding folk. Although legal scholars dwell in the sanctuary of the ivory tower, and are therefore not sullied by the many contaminations of actual legal practice, we still do find evil-lawyer jokes quite uncomfortable.
A surprising number of lawyer jokes involve scenarios of death and hell; we are therefore, understandably, hugely vested in proving that we're not evil people.
Second, the idea of efficiency tends to have some unfortunate connotations. Promoting efficiency doesn't seem to be an extremely honourable pastime, being connected as it is with capitalist markets and correlated associations: greed, selfishness, and, most embarrassing of all, great wealth. It therefore seems difficult to write about efficiency without sounding like a cruel person who cares nothing about the milk of human kindness.
Many years ago, before the earth became polarized into simplistic Justice and Efficiency camps, and when it still seemed that perhaps there didn't have to be a contest between the two values, the idea of efficiency took centre stage in the company law reform debates preceding the UK's Companies Act of 2006. Some brave reformers put forward the idea that maybe the law should try to promote efficiency? This was expressed in the Law Commissions' consultation documents as being based on various presumptions:
Those were brave times. The primary goal was stated to be that of introducing policies 'to facilitate productive and creative activity in the economy in the most competitive and efficient way possible for the benefit of everyone'; efficiency was defined as 'maximum output and contribution to prosperity at minimum cost, rather than simple efficiency in the popular sense'. By 'efficiency in the popular sense' they meant, of course, efficiency in the unpopular sense because many people view 'efficiency' as a nasty word, don't they. 'All he cares about is efficiency!' is never intended as a compliment.
It was therefore necessary for the law reformers to clarify that by 'efficiency' they did not mean that henceforth it would be ok to steal, kill, plunder and generally do everything possible to stab other people in the back because, if you remain calm and try to think about it very carefully, you will soon realize that there's a difference between 'efficiency' and 'abuse'. Yes, I know, shocking.
Of greatest interest is the first guiding principle: the presumption against prescription. This is a presumption against new rules and regulations. Yes, I know, shocking. We know that when trying to promote justice and fairness we have the opposite presumption: a presumption in favour of prescription. The more laws you introduce, the fairer and more just and more equal society becomes. If people fail to show kindness and love to each other willingly then we'll have to force them to do so. That's what law is for: to force people to be kind to one another. When efficiency is taken as the goal, the presumption is the opposite: don't intervene and force people to do stuff unless necessary.
An efficient world with all that talk of freedom and letting everyone get on with their private business sounds quite attractive: friendlier and sunnier, somehow, than a grim dystopian world in which everyone is being whipped and flogged into obeying the Rules on How to Be Nice to Everyone.
But what if, left to their own devices, everyone turns on each other and before you know it people are raping and pillaging and life on earth as you know it is about to collapse into brutish anarchy? Only law can save us from Leviathan, or so we've been taught.
These reformers did not seem to be unduly concerned. With breathtaking confidence, they write:
Scholar, Writer, Friend