The Limits and Promise of Instrumental Legal Analysis
| Date | 01 September 2020 |
| DOI | http://doi.org/10.1111/jols.12238 |
| Published date | 01 September 2020 |
| Author | Jacob Eisler |
The Limits and Promise of Instrumental Legal Analysis
Jacob Eisler∗
RADICAL MARKETS: UPROOTING CAPITALISM AND DEMOCRACY
FORAJUSTSOCIETYby ERIC A. POSNER AND GLEN WEYL
(Princeton, NJ: Princeton University Press, 2018, 368 pp., £25.00)
PRICING LIVES: GUIDEPOSTS FOR A SAFER SOCIETY by
W. KIP VISCUSI
(Princeton, NJ: Princeton University Press, 2018, 296 pp., £30.00)
I. INTRODUCTION: THE INSTRUMENTAL UNDERSTANDING OF
LAW
Should law be understood as serving external social goals, or as an irreducible
bearer of moral weight? This question has been a topic of fierce contemporary
debate.1One tradition argues that legal rules should be evaluated by their
consequential effects in service to some external, typically quantifiable
value.2The success of this approach has produced a robust backlash,
with some scholars asserting that law is a normatively unique bulwark of
relationships between persons.3In this view, the significance of legal rules
∗Southampton Law School, University of Southampton, Southampton, SO17
1BJ, England
j.eisler@soton.ac.uk
[Correction added on 30 July 2020 after first online publication: The name of the scholar
on page 7 is changed from ‘Robert Zipursky’ to ‘Benjamin Zipursky.’]
1 The debate has been most explicit in the private law context. See G. Keating,
‘Corrective Justice: Sovereign or Subordinate?’ in The Oxford Handbook of New
Private Law, eds. H. Smith et al. (forthcoming), at https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3438509.
2 See, for example, R. Posner, The Economics of Justice (1981) 115 (‘whether
institutions are just or good is whether they maximize the wealth of society’).
3 See, for example, E. Weinrib, The Idea of Private Law (1995) 3.
499
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© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University(CU).
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