Hanoch Dagan (Tel Aviv University – Buchmann Faculty of Law) has posted Between Rationality and Benevolence: The Happy Ambivalence of Law and Legal Theory (Alabama Law Review, 2011) on SSRN. Here is the abstract:
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My aim in this Lecture is to explore an ambivalence of law and of legal theory concerning rationality. The ambivalence I will discuss is one between rationality, narrowly defined as the maximization of an agent’s self-interest, and benevolence, broadly understood as behavior that moderates the pursuit of one’s self-interest by taking into account the interests of other individuals or of the community as a whole. I will look at two actors, the central heroes of the legal drama: the subjects of law, more particularly the ordinary people who are the focus of private law, and the carriers of law, centering on judges, on whom legal theory places much of its spotlight.
My first task in this Lecture is descriptive. I will show how law assumes its subjects’ rationality and also seeks to transcend it. I will also demonstrate how legal theory presents a mirror-image of this seeming paradox insofar as judges are concerned: while it expects judges to transcend their self- and group-interest, it suspects that this ideal neither will nor can be perfectly attained. These attitudes may at first glance seem confusing, if not confused, hence my second task, which is to explain and ultimately celebrate these ambivalences. My third and final task is to sketch the complex ways by which law and legal theory face the challenge of sustaining these happy ambivalences.
Highly recommended.