The Cost of CooterITAM-ILACDE Working Papers (2008)
AbstractLegal scholarship is permeated by two powerful intellectual currents. One is ancient, the long tradition of inquiry into ethics and virtue though the interacting modes of religion and philosophy. The second is more modern, economic analysis of law. Bringing the first, the ancient tradition, into cooperative interaction with the current state of the intellectual art has been an unfulfilled goal of many towering masters, including Denis Diderot (chief editor of the Encyclopédie). Robert Cooter succeeded where Diderot failed. Although Robert Ellickson is generally credited with spearheading the law and social norms movement, Cooter is the first person to provide an adequate model of morality as a private-enforcement induced equilibrium (with the possible exception of the Greek historian Polybius). Cooter’s model of morality is of breath-taking importance because such a model may be the only way of preventing Western civilization’s religious and philosophical ideas from continuing to be misused to rationalize violence, slavery, and genocide. Yet Cooter does not rest at modeling morality as a positive matter. He normatively attempts to develop a theory of law based on the interaction of social and legal norms. The cost of Cooter's paper is that readers are confused or misled about the possibilities of combining law and morality. A deeper understanding of the interaction between social and legal norms is possible, at least inasmuch as social norms complement and extend, rather than oppose, private ordering within a competitive environment, and private law brackets spaces where social norms operate. Combining private morality and public law produces tyranny.
Publication DateAugust, 2008
Citation InformationJuan Javier del Granado. "The Cost of Cooter" ITAM-ILACDE Working Papers (2008)
Available at: http://works.bepress.com/juan_javier_del_granado/38/