Tuesday, 6 November 2007

Prototypical example of a lack of empiricism in jurisprudence

Guido Calabresi, in his paper on the roots of Tort law distinguishes criminal and contract law as such:

Contract law reflects the most libertarian set of relationships, in which – once
an entitlement has been given or recognized by the polity – that entitlement can
only be transferred if the parties themselves agree to do so at an individually
determined price. Regulation/criminal law represents the most collective set of
relationships in which the State not only decides who owns what, but determines,
under pain of criminal sanction, when that entitlement can be removed,
transferred or abrogated.

In all of legal theory this is just a given, it is beyond debate. It is seen as a fundamental axiom from which all other theories derive. However as I constantly bang on about, this just isn't the case. There is hardly a distinction between the two when we consider what it means in reality for the majority of the world. Perhaps jurists should consider reading the history of the United States as a great example of what the sanctity of contract meant in reality for the working class, rather than reading hundreds of pages of judgments and law journals.

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