V 232f
Value/values/Max Weber: there is a distinction between facts and values (VsObjectivity of value judgments) "Non-judgmental understanding": ideal type: is the understanding of rational "instrumental" actions. Karl-Otto Apel: these can be reconstructed as transpositions of if-then rules. Sociology: does not have to prove that maximum demands are fulfilled, but only that it was rational for the actor, how he/she has fulfilled his/her objectives.
PutnamVsWeber, VsApel: this is only operationalist and too instrumentalist, to understand rationality only from purposes.
>
Operationalism, >
Instrumentalism, >
Rationalism, >
Teleology, >
Purposes.
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I (d) 217
Facts/values/Putnam: facts are not separated.
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Parisi I 311/312
Facts/values/economic theories/Putnam: In an economic analysis of law, disputes and conflicts between parties are often framed as disagreements as to facts. When facts are in dispute the parties can undertake further investigation and they can recalculate their choices and reassess their optimal course of action. The focus on factual disagreement lends itself to the objective and rational point of viewlessness that grounds the claim that economics is a science. In law, however, disputes are frequently about something more than a disagreement as to facts; they involve disagreements as to values (Putnam, 2002)
(1). These value-based disagreements shape the facts as people understand them, and influence the relative importance attributed to any given fact by any particular party. Value disputes are not easily resolved by appeal to economic analysis. At best, economics can only offer some indirect input on factors to consider in a given situation, but in the end law must operate to make a judgment—a value choice between and among competing claims that are often based on emotion, culture, and other human characteristics that are not easily subject to an economic calculus. Consequently, when economic analysis is applied to law, it often functions to redirect attention away from a conflict involving deeply held values and translates the disagreement into one of competing facts. The problem with this move is that it may function to “mask” what the law is really doing and can undermine the traditional role of law in working to mediate tensions among competing and deeply held values in our system of democratic governance (Noonan, 1976)
(2).
1. Putnam, Hilary (2002). The Collapse of the Fact/Value Dichotomy. Cambridge, MA: Harvard University Press.
2. Noonan, Jr., John T. (1976). Persons and Masks of the Law. Berkeley: University of California Press.
Driesen, David M. and Robin Paul Malloy. “Critics of Law and Economics”. In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University.
