For several decades, one of the leading perspectives in legal theory—perhaps the leading
perspective—has been the economic analysis of law. The theory of human behavior
underlying standard economic analysis of law, like economic analysis in general,
has been the rational choice theory. According to this theory, people strive to enhance
their own well-being, choosing the available option that would maximize their
expected utility. In the past two decades or so, hand in hand with comparable developments
in economics, the economic analysis of law has been challenged by a growing
body of experimental and empirical studies attesting to prevalent and systematic deviations
from the assumptions of economic rationality. These studies have challenged
the assumption of thin, cognitive rationality by showing that people’s preferences
often do not comply with the rules of dominance, transitivity, and invariance. These
studies also called into question the assumption of thick, motivational rationality by
pointing to the role of motivations such as envy and altruism. From a slightly different
angle, experimental and empirical studies have shown that people’s moral judgments
do not fall in line with the consequentialist underpinnings of welfare economics, the
normative branch of economic analysis, but are much more aligned with deontological
morality.