I had the same thoughts as John while reading Steve's posts, which are surprisingly heated and ungenerous in his parsings of Jason's posts.
I assume Steve is a utilitarian-efficiency proponent, as Denning seems to have been (on the utilitarian side) from the little I have read of his opinions and writings and as Posner obviously is (on the efficiency side).
I agree with Steve, as I believe Jason does, that scholars as well as judges must recognize and state the law as it is. Jason's point, I believe, is that a scholar has much more freedom than a judge to criticize and argue when necessary for reform of the law when it is inconsistent with one believes the proper foundation of law should be.
While there certainly have been and remain utilitarian influences on private law, I believe it is clear that in both the common law and the civil law it is interactive justice rather than utilitarian efficiency that provides the basic structure and almost all of the content of private law (and also criminal law). This is certainly true of tort law, which is the area on which I have focused. See http://works.bepress.com/richard_wright/. Utilitarian efficiency views were most prominent, but for only a relatively short period, in the area of product liability, and even there were mouthed (in terms of efficient compensation and efficient risk reduction) much more than they were actually implemented. See http://works.bepress.com/richard_wright/31/.
I have not read the Denning opinions that Jason finds most objectionable. The ones I have read indicate Denning's willingness to import utilitarian views into the law (e.g., his opinions on private nuisance) while still recognizing the limits of clear precedent (e.g., his Behrens opinion on strict liability for wild animals).
Dear All,
How would Steve's suggestd exercise work if it were applied, not to
CJ, but to economic analysis of law and, more particularly, the
judgments of Richard Posner? I presume RP will have taken the USA
equivalent of the oath that Jason mentions. Furthermore, the econ
analysis approach, so far as I understand it (which isn't very far),
would come up against Jason's immanence retort.
I ask not to see Jason and Steve come to yet further cyberspace blows
- even though I'm enjoying their exchange - just out idle curiosity.
John M