Equality, Entitlement, and Efficiency: Dworkin, Nozick, Posner, and Implications for Legal Theory
69 Pages Posted: 10 Nov 2009 Last revised: 26 Apr 2010
Date Written: November 10, 2009
Abstract
This Article analyzes the legal theories of Ronald Dworkin, Robert Nozick, and Richard A. Posner. The Article concludes that integrity, equality, libertarianism, and efficiency are all important values that contribute to the formulation of a compelling legal theory.
Part I assesses Dworkin’s theories of law as integrity and of equality of resources. With regard to Dworkin’s legal theory, this Article argues that it has difficulties as a prescriptive theory to guide the decision-making processes of judges. The Article reasons, in addition, that the implementation of Dworkin’s political, egalitarian theory could lead to excessive interference in people’s lives. Accordingly, Dworkin’s assumption that his theory of equality of resources can always be assumed to be a morally superior theory to Nozick’s libertarianism is questioned.
Part II assesses Nozick’s libertarian theory. This Article argues that Nozick’s theory cannot consistently maintain strong libertarian conclusions given the foundations on which Nozick’s minimal state is built. Nozick has not done enough to counter the potential corrupting effects of flows of money into the legal forum of his minimal state.
Part III assesses Posner’s theory of law and economics. The goals of efficiency and wealth maximization within the context of a legal system and society generally are assessed. While efficiency and wealth maximization are questioned as unitary, overriding concepts, this Article accepts that such considerations cannot be ignored by moral, political, or legal theorists. The Article’s conclusion suggests a possible basis for a future theory based on equality that will partially incorporate libertarian and efficiency considerations.
Keywords: Equality, Libertarianism, Efficiency, Legal Theory
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