E-Commerce y la legislación civil peruana al respecto

Broadly defined, economics is a science enquiring into human behaviour chosen between ends and scarce means in a world of uncertainty and limited resources.^ Thus defined, *. The Path o f Law. 10 Harv LR (1897) 457.

The General Theory o f Employment, Interest and Money (London: Macmillan 1936) 383-84.

P Samuelson. Economics (5th ed NY: McGraw-Hill 1980) 5: Knight. Social Economic Organisation, 3- 5; Posner(1986) 3.

economics is a science delving into the implications of purposive behaviour o f rational men who seek to maximise their satisfaction through their choices/ On the other hand, law is a discipline concerned with reasonable conduct expected o f the average man^ in an order of breakable obligations/ Since the law values reasonable behaviour o f the average man and regards it as socially desirable, it subjects people to the standard a society imposes on them to command compliance. It is a discipline highly normative in its defining character. Both law and economics, despite their contrasting characteristics, address themselves to human behaviour.

To be more specific, economics is about, and is indeed premised on, rational choice of self-interested individuals. A behaviour is deemed rational when it is conducted voluntarily for the maximisation o f one's own benefits. Since such rational behaviour would also increase benefits to society, it will be termed efficient and socially desirable behaviour for the purpose o f the economic analysis. Here, rational behaviour in economics has the socially desirable character in common with reasonable behaviour in law. Indeed, unreasonable behaviour is deterred by society and even sanctioned by the law for its anti­ social, irrational attributes.^ A reasonable, prudent man may thus be interchanged with a self-interested, rational man, who, by definition, v»ill respond to financial incentives by changing his behaviour.

1.2 Goals, Values and Assumptions

O bviously, if the economic analysis of law purports to be persuasive in its own right, its goals and assumptions must be reasonable and practicable and must not be subjective in such a way as to make them arbitrary.* From this standpoint, the economic analysis as sumes the principal goal and function of accident and environmental law to generate the socially optimal level of safety through inducing, primarily, the injurer or polluter to take the socially optimal level o f care (due care).^ This will minimise the aggregate cost of accidents, pollution and their avoidance,*® and maximise social welfare as measured by the sum o f aggregate individual utilities minus corresponding disutilities.** Some may

"*. G S Becker, The Economic Approach to Human Behaviour (U Chi P 1976).

E .g. M A /is te r (or Donoghue) v. Stevenson, [1932] AC 562, 580 & 599, per Lord Atkin (HL) (the neighbour test).

See H L A Hart, The Concept o f Law (Oxford: Clarendon 1961), 87-91. Cooler & Ulen. 11.

*. See Posner, 13. / Shavell, 13.

*®. See Calabresi, lô jf.

**. Shavell, 4, Posner, A Reply to Some Recent Criticisms (1981); id. The Value o f Wealth (1980); id.

challenge the validity o f the wealth maximisation goal as a value or p rin c ip le ,b u t it would certainly be too much to require unanimity on this.*^ Thus, one prominent author has this to say: "The common law method is to allocate responsibilities between people engaged in interacting activities in such a way as to maximise the joint value, or, what amounts to the same thing, minimise the joint cost of the activities.

1.3 Economic Approach to Law in Historical Perspective*^

The classical utilitarian tradition had its origin in Adam Smith and his contemporary philosopher David Hume.*^ For the father and founder of modem political economy, the objective of social wealth maximisation can best be attained when each individual is allowed to pursue his own advantage to promote an end which is no part o f his intention. Thus, if each member o f the community were left to seek to maximise his own gains, he, led by an 'invisible hand', would contribute to the promotion of the common good or the society's interest.*^ A similar line of reasoning was taken by Hume.** This individualistic utilitarian approach to social welfare found the most elaborate exposition in Bentham, who, by formulating the theorem o f "the greatest happiness of all those whose interest is in question", sought to relate it specifically to legislation.*^ His maxim "Everybody to count for one, nobody for more than one" was construed by Mill as meaning that one person's happiness assumed to be equal in degree to another's is to be counted exactly the same.^o

As such, in the utilitarian tradition the idea of justice has not been separated out from that of utility. With the single standard of utility as the ultimate criterion o f establishing rights or dispensing wealth distribution, there did not arise any priority problem in the law

*2. R Dworkin, Why Efficiency?; A Response to Professors Calabresi and Posner, 8 Hofstra LR (1980) 563; id. Is Wealth a Value?, 9 J Leg Stud ( 1980) 191.

*^. See e.g. ch 5: 4.2.2. * t Posner, 179.

*^. See Landes & Posner, The Positive Economic Theoiy of Tort Law, 15 Ga LR (1981) 851, S52ff.

*^. For the two main aspects o f the utilitari;an thought— one as a theoiy of personal morality and the other as a theory o f public choice _ and their evolution. See A K Sen & B Williams (eds), Utilitarianism and Beyond (Cambridge UP 1982), Introduction!.

*^. "He [every individual] generally, indeed!, neither intends to promote the public interest, nor knows how much he is promoting it... he intends only h is own gain, and he is...led by an invisible hand to promote an end which was no part o f his intention". Snnith, Inquiiy . Bk IV. ch ii, para 9: id. Theory, 184-85.

**. "...[s]elf-interest is the original motive' to the establishment o f justice: but a sympathy with public interest is the source o f the moral approbation, which attends that virtue" (Italics are original). Hume, Treatise. Bk 111, pt II. sec II, pp.499-5O0. id[. Enquiry’, sec III. pt 1. para 145.

*^. See his An Introduction to the Principlles o f Morals and Legislation (1789: introd L J Lafleur NY: Hafner Pub Co. 1948) xi & 1 n. 1.

J S Mill, Utilitarianism (1861). in his U tilitarianism. On Liberty, and Representative Government (ed H B Acton. London: J M Dent & Sons.. Everyman's Library 1972). ch V. para 36.

between utility and justice as such.^i To utilitarians, the important question was whether imposition of disadvantages on a few can be outweighed by a greater sum o f advantages enjoyable by others. This situation is changing in recent years, partly as a result of the advance in moral philosophy dealing with the notion of justice as an independent concept^^

to which we will have due regard. For now, suffice it to say that the measure o f social

welfare depends solely upon the sum of aggregate individual utilities^"^ which in turn depend on allocation of goods and services rather than their distribution.

2. Basic Concepts and Tools of Analysis