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This paper has been written as an invited contribution to a symposium on Guido Calabresi’s book on The Future of Law and Economics. Taking Calabresi’s discussion of preferences and value judgements in law and economics as a starting point, this paper analyses some conceptual difficulties, epistemic benefits and normative uses of parsimonious economic analyses of “tastes and values.” First, the paper shows that it is not only possible to analyse and model all the richness of “tastes and values” in terms of rational choice theory with intellectual honesty and epistemic benefit. In fact, economists and economically inspired legal scholars have been doing this for a while. Second, it discusses three arguments that economists can mount in support of parsimonious models. Third, it shows that in spite of such benefits the merits of such an exercise in parsimony do not always clearly outweigh its drawbacks. More importantly, it points at some conceptual limits of such parsimonious modelling.

Economic analysis has contributed to a better understanding and a better functioning of law at different levels of generality. As far as legal reasoning is concerned, these contributions fall into two large groups. Economics in legal reasoning concerns arguments about the purposes and consequences of legal rules and principles that are acceptable in court as legally relevant, including (1) predictions of the likely consequences of alternative legal decisions; (2) technical normative arguments about the best means to achieve a legally determined purpose, and (3) welfarist normative arguments about the desirable goals of specific laws. Economics of legal reasoning, in turn, includes (1) explanatory models of legal processes in terms of rational activity of individuals, corporate entities as well as legal officials, and (2) normative proposals concerning the design of legal processes i.e. the structure of law as institutional practice.

This is the introduction to a special issue of The Theory and Practice of Legislation [formerly Legisprudence] I edited on "Empirical Knowledge, Common Sense, and Legal Cognition". It puts the contributions in the special issue in context by drawing attention to some current trends in lawmaking practices as well as academic research. On the one hand, reference to empirical research in e.g. behavioural economics is increasingly frequent in both policymaking and legal reforms. On the other hand, the use of scientific empirical knowledge in legislation is neither systematic nor uncontroversial. It is suggested that law resists empirical knowledge for three main reasons: epistemic (related to how empirical knowledge is generated), institutional (how this knowledge is channelled and transferred into legislation or other legal procedures) and normative (related to law’s commitment to counterfactual models of human behaviour and non-instrumental goals).

Do laws rely on ‘true’ or ‘adequate’ assumptions? Should they? How do these assumptions relate to 'objective' facts, discovered by empirical sciences? What is the role of legal theory with regard to these assumptions?This chapter analyses a hitherto neglected aspect of law’s objectivity: the epistemic and methodological character of the law’s assumptions about human behaviour. Taking H.L.A. Hart's views on legal epistemology as a starting point, I suggest that the assumptions behind legal doctrines typically combine common sense factual beliefs, moral intuitions, philosophical theories of earlier ages and scientific knowledge. The task of the legal theorist is to provide a rational and critical foundation for these doctrines. Legal philosophy thus does not only contribute to law’s objectivity through conceptual clarification but also involves the legal scholars into substantive empirical and moral argumentation. I also discuss the reasons for and challenges to integrating empirical knowledge on human behaviour into legal policy and legal doctrines and point out the limits set by epistemic, institutional, and normative features of law to this integration.

As a matter of theory, paternalism draws attention to philosophical and methodological difficulties involved in the justification of the limitations on freedom of individual choice in market and non-market settings. After a brief overview of the conceptual and justificatory problems surrounding paternalism in moral and political philosophy, this paper analyses whether economic theory, in its current state possesses the analytical tools for assessing paternalism adequately. I discuss how economists refine their analytical tools and redefine the concept of paternalism in order to fit the latter in their own methodological framework. I will argue that if economic analysis should have an impact on rational debates on paternalistic legal policies, it should both reconsider its normative assumptions and rely more systematically on empirical research, especially on the psychology of human judgement and decision making. Philosophical and empirical insights both suggest that the issue of paternalism is an 'uncertain case.' Outright anti-paternalism should not be replaced by uncritical paternalism.