Efficiency as an axiom of the Economic Analysis of Law Theory

Author(s)

Christian Fernandes Gomes da Rosa

• Document type: Master's Dissertation
• Press: São Paulo.
• Institution: Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD)
• Defense date: 2008-06-06

Examining board members

Celso Fernandes Campilongo; Luis Fernando Schuartz; Rachel Sztajn

• Advisor: Celso Fernandes Campilongo

Abstract

This paper is a product of a research which aimed to study the potential development of a new legal theory within the paper works written by those authors usually associated with the Law and Economies School. The hypothesis tested established the existence of an Economic Legal Theory that would be morally based on efficiency concepts and that assigned to the legal rules a function related to the maximization of social utility, wealth and welfare. In order to accomplish this task, this paper presents a description of how economic models and concepts were turned into methodological instruments to describe and make prescriptions about the legal rules dispositions and their application. Further, the research explores the social structures assigned to enact legal rules and those responsible for their enforcement, in order to verify how their qualifications are able to promote within the social rules efforts the function prescribed by the Economic Analysis of Law. At last, this paper explores the theoretical and rhetoric instruments that made possible the use of the purely economic concept of efficiency into a moral value claimed as an ideal guide of political and legal decisions. The consent is, then, tested as the final basis on which efficiency and maximization as moral principles lay on. (AU)