Recht, Effizienz und Calabresis Trugschluss

The article explores the relationship between economics and moral philosophy. Starting point of the analysis is the question of whether legal policy should be guided purely by considerations of efficiency (as, for example, Richard Posner argues) or also (or exclusively) by considerations of fairness. The article discusses the two main philosophical movements underlying this question: the Kantian rights-based approach and the utilitarian (consequentialist) view. It concludes that neither approach succeeds in substantiating the claim that certain values (individual liberties vs. the greatest good for the greatest number) can be accorded exclusivity or absolute truth. The views can, therefore, not predetermine the issue of whether efficiency considerations should govern the legislative process and the application of the law. Rather, depending on the circumstances of the case, different interests have to be balanced. These general considerations are then applied to specific problems involving, inter alia, the value of human life, the Learned-Hand formula, and the concept of cheapest cost avoider.