Abercrombie France,Criticism of traditional legal

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Criticism of traditional legal thinking - reading

Abstract: thus provides us with a kind of new, broad, comprehensive perspective. Efficiency is seen as fundamental values of law and legal theory of value and economic benefit analysis is the field of legal research theory and methodology was a major breakthrough. This article attempts to outline the laws of economics, Posner outline the idea, and an appropriate reflection of social reality in order to promote the conditions of market economy under the rule of law.
Keywords: Posner Economic Analysis of Law and Economics effective
Abstract: ECONOMIC ANALYSIS OF LAW, the widely praised book, focuses on economic analysis of nonmarket behaviors such as crime, the legal process, marriage, accidents and anti-racialism. It supplys us with a new and unconventional method to think of laws. Posner's doctrine about theory and reflects on the social problems, in order to consummate the law of market economy.
Key words: Economic analysis of law; Ponsner; Economic analysis; Efficiency I. Introduction Economic Analysis of Law (economic analysis of law), also known as Law and Economics, is the first of 60 early the rise in the United States one of Western legal thought. Law and Economics of the Law means to broaden the economic field, the law of fairness and justice are no longer limited view of trade-offs, selection,[link widoczny dla zalogowanych], so as to reposition the legal concept of law and opened up a new path of economic integration. Master of law and economics professor at the University of Chicago Posner devaluation, since he was known as the 70 most distinguished legal economists. Its most important academic book, territory. Chinese version of the first edition of Posner pointed out in the preamble, The economic analysis He believes that that in this world, resources are limited relative to the human desire - the resources are scarce. It is assumed that: people are the goals set for their students, their satisfaction, that we often speak of The , he would do so. This is the logical starting point is the law of economics. II, Law and Economics Perspective Reflection (a) of the Law and Economics Perspective Law Posner that the basic concepts, economics and law this dichotomy will subject the phenomenon of law and economics In fact the distance between the phenomenon of artificially inflated. He believes the law to regulate economic analysis is a powerful tool in a world of scarce resources, efficiency is a recognized value, a behavior that is more effective than another is of course an important public policy factors. The traditional concept of law and this falls far short. It is because of the legal distinction between economics and traditional law, a direct result of a series of background from the traditional moral construction under the legal concept in the law to change the perspective of economics, and even conflict. Therefore, we must understand the laws of economics, will have to re-understanding of a range of concepts, the author tried to analyze from an economic point of view, the 1. Legal on traditional Chinese legal theory generally proceed from the ideological, legal status would be a manifestation of the will of the ruling class. However, in law and economics perspective, the law was not put on too much ideology, but focus more on the actual effect on society. So here, the law is shown by the characteristics of practicality. In the traditional view which,[link widoczny dla zalogowanych], laws are in a negative position, are generally carried out after the adjustment, the lack of forward-looking; law to be changed mostly with social change. Law and Economics was that the law in addition to subsequent adjustment, more attention should advance prevention. Because the loss occurred in many cases it is difficult to make up, for example, a traffic accident, the pedestrian was motor vehicle (drivers fault there) hit and lost an arm. Traffic police of course will require the drivers to pay compensation, damages, only the transfer of wealth from one party to the pedestrian the driver side, total wealth of society has not changed. But no matter what make up afterwards, pedestrian or lost an arm, reducing the total social wealth, because pedestrians can not create more wealth than ever before. Forward-looking law is very necessary here. The Economics of Law and Economics with a series of research methods and tools, in particular the adoption of economic man hypothesis and the incentive mechanism and to predict people's reaction to certain legal environment, more conducive to enact laws to promote the wealth of society. In addition, the legal system must be cost-benefit analysis. Coase Theorem tells us that the first: the initial allocation of legal rights is irrelevant from an efficiency point of view, as long as transaction costs to zero; However, in reality, the case of zero transaction costs is not, everyone knows this now, certainly better than Kos We know that the earlier, so the transaction cost is not zero in the real world, people would derive the Coase Theorem II: In the case of non-zero transaction costs, the initial allocation of rights will affect the efficiency of resource allocation. The operation of the legal system itself is a cost, so good legal system on the one hand contribute to the social cost savings,[link widoczny dla zalogowanych], partly because of lower transaction costs, increase transaction efficiency will follow, so will promote the increase of the total social wealth. Once ignored transaction costs of legal factors, but the law is an obstacle to impede social progress. 2. On the right about rights, the traditional legal theory used to the static from the right, at best, starting from its exclusive, that is between the right and the right to draw a line, when strictly defined by law and to protect a person's legitimate rights, in effect defining and protecting the rights of others. However, Coase in , that is to avoid damage to B will make a damage. to decide the real question is, is to allow a damaged B, or allow damage to a B? key is to avoid more serious damage. to achieve the purpose of maximizing social wealth and social resources to get the most efficient use. (B) the practice of law and economics in our attempt to 1999 in Shenyang City, issued the The main spirit of the approach can be summarized as: In the pedestrian traffic violation lead to traffic accidents, if not illegal behavior of motor vehicle side, pedestrians take full responsibility. Over the years, most of the local traffic management departments in handling a traffic accident is one of This new approach caused a legal circles, However, the majority voice of opposition, such as the famous jurist, Professor Liang Huixing to the view that the approach is anti-humanity, anti-justice, anti-human rights, and further pointed out that the treatment should be applied in a traffic accident liability without fault. The author of this great debate led to thinking, how to measure a specific rationality of the laws and regulations? In my opinion, the objection of the new approach is based on the law as more than income redistribution tool - or, more traditionally said to be from the By this standard, on average,[link widoczny dla zalogowanych], pedestrians are However, the law's primary function is to ensure efficiency and to consider how to minimize the cost of the whole society. A reasonable measure of whether the law should be the primary criterion for allocation efficiency standards rather than standards. Distribution should be the principle of efficiency, if left efficiency standards, there can be no really fair. For example, if a single standard distribution starting from the poor steal the assets of the rich should not be found guilty, the strong should not harm the weak constitute infringement. If our system design in full compliance with this standard,[link widoczny dla zalogowanych], it will reduce the enthusiasm of the work, no one is willing to do the people's enthusiasm in production will increase efforts to accumulate wealth. We assume that the traffic rules itself is socially optimal, that is, in strict compliance with the rules of both cases, the probability of the accident at the socially optimal level. It should be noted that, socially optimal level of accident does not mean that the probability of the minimum, but for society as a whole, to achieve maximum economic efficiency to minimize the probability of the accident while the marginal state. Under this premise, there are three situations: first, the implementation of initiative to prevent accidents and too cautious or even afraid to cross the road when the green light, there is no incentive mechanism between the optimal allocation of accountability, it is not efficient, can not achieve the social optimum state. Second, the implementation of have to bear some personal losses), so the driver drove too cautious and slow down cause traffic congestion, pedestrian but jaywalker, which they can not achieve optimal efficiency. The third rule is the implementation of This has the enthusiasm of drivers and pedestrians obey the traffic rules, accident probability optimal (note the optimal rather than minimal), the optimal efficiency of social status. A good rule of law accident damages, should be able to produce an incentive, in this excitation, the voluntary participation of road traffic into the appropriate cost of prevention, so that accidents do not occur or less occurred. Therefore, Shenyang City, introduced a new approach on human rights protection appear to be a the high efficiency configuration. Laws and regulations to determine the reasonableness standard of efficiency savings can often be the biggest social costs, in this world of limited resources, the distribution of true justice.

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