Law, Society, and Economy: Centenary Essays for the London School of Economics and Political Science, 1895-1995

By Richard Rawlings | Go to book overview

7
Altera Pars Audiatur: Law in the Collision of Discourses*

GUNTHER TEUBNER


POLYTHEISM AND (POST-)MODERNITY

It is like the days of old when the world was full of many gods and demons, only different; it is like when the Greeks made sacrifices, one time to Aphrodite, another time to Apollo and above all to the gods of their home towns, only today the magical and mythical is missing from existent conduct. It is fate that reigns supreme over all the gods and their struggles, and definitely not knowledge. ( Max Weber.1)

Today the only god left to whom law is supposed to make sacrifices is called rational choice. Over the past thirty years, a quasi-religious academic movement has spread through all the law schools of North America with a particular zeal. After its high priest, Richard Posner announced 'the demise of law as an autonomous discipline',2 economic rationality is supposed to represent the new universality of law. Theory of transaction costs, theory of property rights, public choice and economic analysis of law are different currents in the broad stream of a movement which is intent on replacing the emaciated concept of justice with the ideal of the economic efficiency of law. This new monotheism speaks with the pathos of natural law in the name of both 'nature' and 'reason'. The internal laws of the market and of organisation are in the nature of modern society and law has to reflect them. The philosophy of 'rational choice' elaborates on the principles of reason in this new order and they apply to law as well.3

____________________
*
This essay is a revised version of an inaugural lecture delivered on 17 October 1995. I would like to thank Klaus Ziegert and Ros Ziegert for the translation from the German and Hugh Collins, Anton Schütz and Sean Smith for critical comments.
1
M. Weber, Gesammelte Aufsätze zur Wissenschaftslehre ( Tübingen, 1968) 605.
2
R. A. Posner, "'The Decline of Law as an Autonomous Discipline: 1982-1987'" ( 1987) 100 Harvard Law Review761.
3
B. Barry, Theories of Justice: A Treatise on Social Justice I ( London, 1989).

-149-

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