This paper points to some limitations of law and economics as both an explanative and a normative theory. In explaining law as the result of efficiency promoting decisions, law and economics theorists often dismiss the reasons actors in the legal system give for their behavior. Recognizing that sometimes actors may be unaware of why institutions evolve as they do, I argue that the case for dismissing reasons for action is weaker when those reasons make reference to rules of practices that (...) constitute the meaning of actions within those practices, or when they have otherwise been given well-considered defenses. In criticizing law and economics as a normative theory, I acknowledge that economic considerations are often important in deciding how to act in the personal sphere and how government should allocate its scarce resources. I argue that while the use of institutions to promote our ideals forces us to take their costs into account, it is a mistake to infer from this that the question of determining social policy is a purely economic problem, and that we should acknowledge the non-utilitarian moral ideals our law and practices promote. This is the basis of both an internal criticism--law and economics theorists have not sufficiently evaluated and weighed the value of fairness and other ideals in their utility calculations--and an external criticism-- these ideals are important in ways that can not be measured in utiles. (shrink)

Is it always morally wrong to violate a law and in doing so does one necessarily act badly? I argue that whether in breaking a law one acts badly depends on considerations unique to the particular act of lawbreaking. The moral judgment in question is deeply contextual and cannot be settled by appeal to blanket moral rules such as that it is wrong to break (any) law. The argument is made by focusing on the example of a runner having to (...) decide whether to disobey the law against trespass. If in trespassing one acts badly it is not because there is a prima facie moral obligation to obey law. Theories of political obligation which ground an obligation to obey law in the principles of fairness or gratitude or in consent all fail to provide a persuasive reason not to trespass given a particular fact situation. I argue that when it is morally wrong to trespass it is morally wrong not because one has broken the law, but because and insofar as one has violated reasonable expectations of privacy. Whether there is a reasonable expectation of privacy in one's property depends in part on the character of the property in question. (shrink)

Retribution is often dismissed as augmenting the initial harm done, rather than ameliorating it. This criticism rests on a crude view of retribution. In our actual practice in informal situations and in the workings of the reactive (properly called 'retributive') sentiments, retribution is true to the gravity of wrongdoing, but does aim to ameliorate it. Through wrongdoing, offenders become alienated from the moral community: their actions place their commitment to its core values in doubt. We recognize this status in blaming, (...) a withdrawal of civility and solidarity which symbolizes the moral distance wrongdoers have put between them and us. Atonement is the means by which they make themselves 'at one' again with the community. Retribution is properly understood as a cycle which recognizes disruption and alienation, but aims at reconciliation. (shrink)