Temporal Structures of Justification in the Economic Analysis of Law: Legal Philosophy and Free Will

Abstract

In an appropriation of jurisprudence away from moral philosophy in the name of advancing positive science, the economic analysis of law repudiates judicial responsibility in regard to human freedom and rights. I argue that the moral freedom and responsibility presupposed by a system of legal rights should not be eclipsed by narrow causal determinism but instead upheld by proper judicial discernment of wider temporally balanced structures of legal rights within such a system. Indeed, this is part of a wider claim that moral philosophy at large proceeds at its best by means of a temporally holistic reasoning process. I am interested in exposing and challenging theoretical bias and unacknowledged assumptions about time-value – in particular the privileging of future outcomes – lurking behind the economic analysis of law philosophy.