A Deep Challenge to the Law and Economics Movement: Could the Legal Literature Be Missing an Entire Standpoint?

When Larry Solum recently had occasion to comment on the vitality of contemporary legal philosophy, he observed is that there has been a "reengagement of normative legal theory with sophisticated work in moral and political philosophy." His first example of this was a recent symposium I organized on Stephen Darwall's The Second-Person Standpoint: Morality, Respect, and Accountability.  Solum went on to observe that, in his view, "if you are paying attention to anyone other than the most senior legal philosophers, it is obvious that normative theorizing about law is in one of its most interesting and dynamic phases."

But what exactly is the importance of Darwall's recent work on the so-called "second-person standpoint" for the law?  (For answers, see here, here, and here--or just continue reading.)

The answer: quite a lot, in my view, because Darwall's work suggests that the law and economics movement cannot account for fundamental features of what make legal obligations legal obligations.  Principles of efficiency-maximization are fundamentally first and third-personal in form (e.g., they engage questions like "How should I act," and "What is true of the world"), whereas legal obligations necessarily give rise to what Darwall calls the "second-personal" standing to raise claims or grievances against one another or to demand compliance.  (I take up the second-person standpoint toward you when I look you in the eye, and say: "How could you have done that to me?").  This second-personal standing cannot, moreover, be reduced to or derived from any combination of first and third personal practical reasoning.  We ask and answer these questions, instead, from a distinctive and irreducibly second-personal standpoint.  But this means that there are fundamental features of legal obligations in all areas of the law--including those areas of the private law where the law and economics movement has proven most successful--that evade economic analysis. 

For a brief introduction to these developments, see this Introduction to the Symposium that Larry Solum mentioned.  I have also extended some of Darwall's thoughts to issues in contract law and analytic jurisprudence.  I may discuss some of these ideas in more detail in later posts.

After all, every natural language contains grammatical forms for the first, second, and third person--and yet legal academia has thus far pictured practical reasoning as almost purely first and third personal in form.  In my view, a proper appreciation of these facts is thus likely to have widespread implications for the law.  And I believe that Darwall's recent move to Yale--where he will almost certainly have greater contact with the Law School--should help expedite our understanding of these implications within legal academia.