Martha McCluskey —
According to conventional law and economics wisdom, problems of economic inequality are best solved with targeted redistributive spending, not universal human economic rights. A political economy perspective suggests the opposite: that legal rights are crucial for economic justice.
Orthodox law and economics tellsus: all rights have a cost. Law allocates economic gain, but cannot generate it, in this view. From this premise, any new economic rights aimed at supporting those who are disadvantaged must come at the expense of some other economic gain. For example, a universal right to affordable health care would simply mask an inevitable tradeoff in public and private spending: fewer resources for education or jobs. In addition, in this logic, an economic entitlement to receive basic human support will replace market discipline with incentives for waste, reducing economic resources overall.
What orthodox law and economics doesn’t tell us: all costs have a right. That is, any costs associated with new economic rights arise not from essential economics, but instead from contingent legal and political arrangements. Particular legal and political regimes produce, organize and limit access to human needs like education or health care. Law itself shapes the economic forces that appear to be disrupted when law re-allocates rights to advance general human needs.
On the question of health care, for example, a complex system of legal rights and institutions already protects economic gain for some at the expense of health and economic security for others. Legal systems distributing risks and rewards in health care include patent rights, insurance regulation, corporate governance rules, antitrust law, criminal law, and tax policy. Moreover, these legal rights are not firmly settled or self-evident, but instead are continually questioned and modified, especially in response to lobbying, litigation, and advocacy by industry interests. New rights to egalitarian economic support can similarly re-arrange economic gain and loss as a legitimate and beneficial function of democracy.
Further, we should not presume human economic rights amount to zero sum transfers or costly economic distortions. That conventional law and economics thinking rests on the myth of an essential market order that transcends law and politics, thereby closing off analysis of how re-structuring the market could generate far better economic conditions. But a more complete law and political economy view recognizes that entitlements do not come at the expense of naturally productive market activity; instead, entitlements generate and govern market production. New legal rights can give people new power to resist existing market constraints, and that transformative power can lead the economy to new levels of prosperity and stability. Continue reading