13. Internal and External Criticism

13.1. Read the text.

Internal Criticism

The internal criticism of a law-and-economics approach takes into account preferences for fairness; and by assuming that crimes still occur when the expected utility of committing the crime is negative, it modifies the assumption that actors are perfectly rational. The criticism is internal in that it works within the lawand-economics framework, according to which notions of fairness or correctivejustice “receive no independent weight in the assessment of legal rules,” and policyis made with the “exclusive use of welfare economics” – only individuals’ wellbeing is factored into a policy decision.53 External critics argue, in contrast, thatthe law-and-economics point of view does not adequately account for important considerations such as justice or fairness. That concern is not necessarily met merely by including justice or fairness as preferences that receive weight in a utility calculation. External critics challenge the assumption that social utility or

individuals’ well-being is the only valid criterion for deciding how one ought to act or what public policy ought to be.

13.2. Read the text. External Criticism

The list of critics of Bentham’s single-minded utilitarianism is legend, their criticism vituperative: Utilitarianism’s most influential theorist is a “frightfully radical ass” (Goethe), a “worm. . . responsible for civilization’s decay” (Keynes.

More recently, Martha Nussbaum criticizes the utilitarians’ and economists’ use of aggregate data, which fails to attend to the “diverse concreteness” of people –a criticism Dickens made with devastating effect in Hard Times in contrasting Gradgrind and Bounderby, utilitarians concerned only with facts, numbers, andself-interest, with the far more humane Sissy Jupe. For Nussbaum, the economic mind is blind “to the fact that human life is something mysterious and not altogetherfathomable.” Appeal to the mysterious and unfathomable is precisely the irrational move Kaplow, Shavell, and other law-and-economics proponents want to avoid and replace with clear-thinking and rational argument.

Глава III. Supplementary texts for translation Tastes differ

There is no account for tastes. Nobody can explain why some people go into astronomy, others are interested in chemistry, still others are absorbed by archaeology. What is most surprising is that there is something in common in all these inclinations and preferences, and this is man's eternal curiosity about the unknown, his burning desire to know something which has never been known before, to do something no one has ever done before.

How does it work? Why does it work differently for different people? Why can some people do what others cannot, and vice versa? To most questions like these we have no answers yet. Nor can we hope to get them soon unless we find ways to model the brain structure and simulate its operation more accurately than is now possible. It is not until we have a computer of comparable storage capacity that this will be possible. For the problem is so complex not only because its solution would involve a multidisciplinary approach by many researchers, but also because it requires studying the instrument with the instrument itself, there is no accounting for tastes.