On Cost-Benefit Analysis and the Meta-Rule of Legal Interpretation

Abstract

Theories of legal interpretation have reached relative maturity at the methodological level. Yet the operational meta-rule governing the use and selection of interpretive methods remains unresolved. In recent years, the rise of socio-legal scholarship has forcefully challenged this issue, arguing that legal interpretive theory itself is incapable of providing an adequate answer. By introducing the economic logic of cost-benefit analysis and incorporating consequentialist considerations, socio-legal scholars propose an economically grounded meta-rule of interpretation. However, they may suffer from several difficulties. On one hand, it must deal with quantity problem, the theory cannot formulate specific, unified criteria, explain morality problem. On the other hand, they ignored two component structural of normative reason, and why we should take normative reason seriously. For these reasons, cost-benefit analysis cannot plausibly serve as the meta-rule of legal interpretation.