On The Theoretical Basis Of The Posner Economic Analysis Of Law

when Posner studies the law , the most commonly used method is the economic analysis. To lay a solid foundation for this method, and also to avoid the relation of the legal economic analysis and utilitarianism in together, Posner proposes "the wealth maximization" theory and attempts to prove the wealth maximization to be possible to provide a solid ethics foundation for the legal economic analysis.This article takes Posner's law economic thought as a starting point, and emphatically has analyzed his wealth maximization theory. The article lies in analyzing the Posner's wealth maximization theory, as well as how does he establish the wealth maximization theory in the critique utilitarianism's foundation, and proves legal using the wealth maximization the validity.In the "Economic Analysis of Law", Posner advanced the wealth maximization theory initially. But the mature symbol of the wealth maximization theory is the publication of the "Judicial/Just Economic". When systematically elaborating wealth maximization theory, Posner has carried on the critique to utilitarianism's flaw. The critique mainly concentrates on the difficulty in effectiveness measure and the abstract of the utilitarianism principle. The goal that Posner criticizes the utilitarianism is to avoid that the people think the legal economic analysis as the utilitarianism. Posner attempts to use "The Wealth Maximization" to replace the "Utility Maximization" of utilitarianism, in order to establish his own wealth maximization theory."The Wealth Maximization" refers that the behavior goal strictly limits the quantity of money that is depended on the basis of the voluntary payment. Under the legal restraint and the guarantee the main goal of individual behavior is to realize the maximization of the monetary aggregate, then the maximization of the social monetary aggregate. Between the wealth maximization theory and Posner's efficiency view has the close relationship. What Posner holds is "Kaldor-Hickes efficiency" view. The core content of this kind of efficiency view is: If the change of resources allocation makes some person's wealth to increase and simultaneously causes other person's wealth to reduce, then the wealth which, so long as increases surpasses reduced the wealth, may think that this kind of change caused the public wealth overall to realize the increment, this kind of change was effectiveness. Obviously, the Kaldor - Hickes efficiency means the increment of the social wealth, but the efficiency maximization will definitely cause the wealth maximization. Though the comparison between "the wealth" and "effectiveness", Posner has finally established the wealth maximization theory. This kind of theory stresses that the law should accommodate someone to the pursue of the benefit, and stresses that the law should be advantageous to the efficiency of social resource allocation, which could promote the increase of the social wealth; If it granted the right the high cost excessively and suppressed the efficiency, then the right should be granted those who treasure it mostly. Traditional legal doctrine is thought that the first valuable standard of law is the justice. Law is the embodiment of justice, justice is the foundation for existence of law. Posner gives a second meaning to justice-efficiency. The efficiency maximization is wealth maximization, and then the wealth maximization establish the basic status to judge whether the law is correct or not. Posner strengthens this viewpoint through two proofs. Firstly, the wealth maximization and the assignment justice and the adjustment have the compatibility; secondly, it has the feasibility that the common law pursues efficiency. However, Posner uses the wealth maximization as the unique standard to judge whether the law is correct or not. It lets Posner fall into the difficult situation similar to the utilitarianism. Legal value has diversified characteristics, it needs to select or abandon for different value in different situation and occasions. However, neither value can be suit for any situation and occasions, the wealth maximization just one of many in legal value. Therefore, wealth maximization at most just is one of the bases for legitimate legal reason, and that can not be unique basis. It leads to Posner's effort to be defeated.Posner's wealth maximization theory provides a new perspective for traditional jurists researching law. However, he only prove wealth maximization theory from the perspective of economics, it ignores law has the equally close relation with the political science, sociology, history and other subjects. Posner opens a new perspective and closes all the other perspective. Although the wealth maximization theory has its own unique advantages, the narrow perspective locks them up in economics "cage". At the same time, there are an obvious difference between wealth maximization theory and utilitarianism. And in certain regards, wealth maximization theory has more advantages than utilitarianism. No matter which has more advantages of ethics, which can better to provide a firm ethical foundation for Economics of Law. However, the difference between them is obvious. Therefore, we can not think simply that wealth maximization theory is another form of utilitarianism.Economic Analysis of Law rise in the United States and United States are belonging to Anglo-American law system country. Anglo-American law system has the bright characteristics which are mainly to the case law and recognize the law made by judges. The judges of the Anglo-American law system can make the new law and revise the old law according to some basic principles and the basic guiding principles. Like this, wealth maximization theory to guide judges on the trial is possible. But China belongs to the continent law system countries, and continent law system' bright characteristics which main to make law, rejected the law made by judges constraint the wealth maximization theory applying in China.At the same time, the problem that our country faced is how to achieve social equity under the precondition of ensuring the efficiency, and wealth maximization theory to make efficiency as the unique view to take care the society, and exclude the other value in judging and guiding foundation of national policies and legal system. This narrow thinking way can neglect the rights of the individual easily, lead to depart from the social justice, and make social order eventually in a contradictory and unstable condition. Therefore, the wealth maximization theory can not be applied in our country currently.The first chapter introduce the origin of Posner Economics of law idea and the reasons for using economic analysis; The second chapter define the term "wealth maximization" firstly, and then describe generally by Posner on how to establish his wealth maximization theory according to criticize utilitarianism, and discuss the advantages of wealth maximization comparing with the utilitarianism. The third chapter focuses on discuss the relation between the wealth maximization and legitimacy of the law. This article will expound around Posner how to prove the basis of legal legitimacy is wealth maximization, and speculate the possibility of making the wealth maximization as the basis of legal legitimacy: Whether the wealth maximization can provide the enough firm philosophical foundation for legal legitimacy or not? Whether the legal which don not meet the wealth maximization theory is legitimacy or not? The fourth chapter state Posner wealth maximization theory in brief, and analysis the value and defect of wealth maximization theory. The author believes that whatever the legal principle accord with the principle of wealth maximization are legitimacy legal and do not have the entirely convincing. However, it is undesirable to equate the wealth maximization with the utilitarianism. The fifth chapter is discussed the adaptability problem of wealth maximization theory in China. The author believes that the wealth maximization theory can not be applied in our country currently.Although Posner's wealth maximization theory does not establish a firm ethics foundation for economics of law analysis, at the same time, it is so absolute that make the wealth maximization as the unique standard for judge the legal legitimacy whether or not. However, we have to admit that wealth maximization theory is better than utilitarianism in some interpretation of certain aspects indeed. Although the wealth maximization theory is flawed in some respects, the spirit and attitude of Posner exploring the legal root displays a scholar respect the science and the desire for the exploring knowledge.