On some conceptual sources of the wealth maximization theory by Richard Posner: Adam Smith and Jeremy Bentham

Abstract

Objective: to identify some aspects of the historical genesis of the ideas of wealth maximization theory by Richard AllenPosner - one of the main representatives of the Chicago school of economic analysis of law.Methods: post-classical approach to the cognition of social phenomena, which allows analyzing them in their historical development and functioning as the complex of objective and subjective factors; portrait method; comparative legal and formal logical analysis.Results: the wealth maximization theory by R. Posner is one of the most well-known ethical and legal theories in the English- speaking world. It has many followers, and it is often applied as the basis of functioning by acting Western politicians and representatives of political parties. There are also opponents who stand in different positions. The article provides arguments to confirm that R. Posner’s theory is based on the ideas of A. Smith and J. Bentham. In particular, it is A. Smith’s idea that the engine of human development is the desire to improve human living conditions, which is the desire to increase private and public wealth. Also important are the ideas of the “invisible hand of the market” and of self-interest, which is inextricably linked with empathy. From the creative heritage of J. Bentham, Posner singled out the idea of pleasure as a criterion for justifying actions, although he criticized it. Posner replaced pleasure with utility, aimed at maximizing wealth. Posner also recognizes that Bentham’s idea, which has become one of the key ones in the economic analysis of law, is that punishment is a way to impose costs for criminal activity. The authors conclude that the ideas of these thinkers are the basis of the wealth maximization theory by R. Posner, which, in turn, is an authoritative normative legal theory within the Chicago school of economic analysis of law.Scientific novelty: for the first time in the Russian science, this article examines the general theoretical foundations of the welfare maximization theory created by the most famous American lawyer, thinker and economist R. Posner and reveals its ideological origins. Understanding of these origins makes it possible both to criticize this theory and to study the possibilities of using its ideas in the Russian perspective.Practical significance: the ideas that served as the basis for Posner’s wealth maximization theory can be used both for further criticism of this theory and for the development of the Russian legal science and philosophy of law. These ideas can also be used in political practice, law-making, and judicial law-enforcement.

Keywords

• «невидимая рука» рынка