Weekly Topic: Economic Liberty and Natural Hierarchies

Last week someone asked me "CLS says that law benefits people of higher social status. Then how do we explain things like welfare and food stamps?" Despite having radically different attitudes on this issue, I believe that CLS and individuals who favor Economic Analysis of Law, such as Richard Posner, have similar responses to this question. Here's how Posner responds to a similar issue in his essay "Utilitarianism, Economics, and Legal Theory:" "the costs of the minimum wage may be tolerable from a wealth standpoint if it were necessary to ward off a dictatorship that would reduce the nation's wealth even more." (140) The point at which Posner and CLS theorists converge is in thinking that hierarchical economic forces will support social safety nets like welfare, food stamps or the minimum wage if these provisions, which are harmful both economically and to social hierarchy, are necessary to prevent greater social transformation and economic disruption. They differ over whether such transformations or social provisions would be a good thing: CLS theorists think it might be, while economic theorists like Posner believe it is relatively bad.

The logic behind Posner's position is that in the tradeoff between economic and political liberties, we are generally right to prefer economic liberties because the wealth generated by economic liberty "provides foundation and accommodation both of individual rights and of the material prosperity upon which, in the modern world, the happiness of most people depends." (136)

• What do you think of Posner's view that his principle of Wealth Maximization provides the basis for all relevant political rights?
  
• What evidence would you cite to support or question Posner's assertion?
  
• What significance do you attach to the CLS claim, which Posner acknowledges, that ideology—Posner calls it "advertising or other features of a market economy[—]lead people to buy things they don't really want?" (114) To put it another way, what complications arise within a legal or economic system when people are unaware of what they really want or what political rights best serve their wants and needs?