Morality and the Law: Some Implications for Economics (Report‪)‬

This article is motivated by two ideas. First, it is not now in dispute that institutions matter. Second, it is well established that "The issue that stands behind every controversy in contemporary legal theory is the problem of how law is to be understood in relation to moral values." I seek first to show that the three prominent theories of law incorporate elements of outcomes- and right-based moral theories. For this and other reasons, I argue that the three theories are logically incoherent, hybrid moral theories. I argue, moreover, that law and morality are inexorably intertwined, and that an explicit accounting of "ordinary conscience" forces a new understanding of judges' and economic agents' decision environments. This, in turn, animates a conservative theory of law, and implies a rejection of utilitarian social welfare theory, and its antecedent, received neoclassical economic theory.