Freedom and the Law

3. The Economic Approach to the Political

Law_201-250.indd 19 10/27/09 8:09 AM 3 THE ECONOMIC APPROACH TO THE POLITICAL I have already stated at the beg;nning of these lectures that we still lack studies worth mentioning on the nature of the lawmaking process as compared with the nature of the market process . This statement, however, needs qualification. During recent years, some studies have appeared with the intent of comparing market choice on the one hand and political choice through voting on the other. The law itself may be conceived as an object of choice, i.e., of political choice. To the extent that we identify law with legislation, we can take advantage of the recent studies of political choice as compared with market choice in order to draw a comparison between the market and the law conceived as legislation. The usual perspective of decision-making or choice-making theories is an individualistic one. It is usually admitted, at least implicitly, that every decision must be someone's decision. But the theorists are also aware of the fact that the decisions of individuals are not only competitive (as when individuals are out for themselves) but also cooperative (as when individuals try to reach a single decision for a whole group). Some authors call these cooperative decisions "group decisions" and try to work out special systems in order to enable different individuals (by applying independently the standard procedures of the system to a given set of data) to come out with essentially the same inferences and possibly with essentially the same decisions. The same authors 219 Law_201-250.indd 20 10/27/09 8:09 AM 220 THE LAW AND POLITICS recognize, however, that the value of their system is still unproved , at least for group decisions outside the scientific world. This is a pity (as one of them says) because very few and only questionable mechanisms for other group decisions have so far been invented, for instance, voting procedures (such as majority rule) and verbal bargaining. In fact it is admitted that the ballot box "works (only) when decisions are relatively non-technical, and when the group loyalty is strong enough so that minority voters are willing to stay with the group and accept the majority decision."1 On the other hand, verbal bargaining, which may of course operate in conjunction with voting procedures, is subject to serious limitations. However, I think that group decision, as the cooperative decision of a number of individuals in accordance with some procedure , is both a useful and an understandable idea for the political scientist-not that we should equate group decision and political decision. We probably cannot exclude some individual agents, whose decisions Max Weber would call "monocratic." Nor can we say that all group decisions are political. Boards of directors in trade corporations make group decisions that we should not call political in the ordinary sense. Thus we should be cautious about agreeing with Professor Duncan Black when he thinks of his theory of committee decisions as a political tout court.2 But it is clear that a great many decisions which are usually called "political," such as decisions of constituencies, of administrative or executive agencies, of legislatures, etc., are really group decisions, or cooperative decisions in the sense indicated by Bross of single decisions reached by several individuals for a whole group. We must note at this point that the individualistic perspective seems to be altered somewhat when we speak of group decisions. The decision of a "whole group" may or may not be the same decision that each individual in the group would make if he were in a position to decide for the whole group. I wonder whether this would be so in the scientific world mentioned by Bross. But 1 Irwin D.]. Bross, Design for Decision (New York: Macmillan, 1953), p. 263. 2 Duncan Black, "The Unity of Political and Economic Science," Economicjourna~ Vol. 60, No. 239 (September 1950). Law_201-250.indd 21 10/27/09 8:09 AM THE ECONOMIC APPROACH TO THE POLITICAL 221 it is the case wherever there is no unanimity among the decisions of the several members of a group, and such lack of unanimity in groups is the rule rather than the exception. Group decisions are not usually identical with each single individual decision inside the group. This fact goes some way toward explaining the appeal of those semi-mystical or semi...