"Our project" and Law & Econ

Mark beat me to the punch (below), and has called MOJ readers' attention to Judge Posner's post on religious arguments in politics.  I appreciate Mark's comments, and look forward to others'.  Mark concludes with a question-and-comment:

What . . . would Posner make of our project? I think there is a fundamental conflict between [Catholic legal theory and?] law & economics (pace Steve Bainbridge), whether the Posnerian pragmatic version or the many utilitarian versions, because the basic assumption is that meditation upon the nature of the good is a fool's errand, and certainly unrelated to the way people actually behave, and that the best we can do is maximize welfare, ie peoples' preferences. This seems to me fundamentally at odds with the Artistotelian/Aquinean tradition of which both Catholic moral theology and Catholic Social Thought are a part, and on which we must draw in formulating a Catholic understanding of law.

I hope Mark will correct me if I was mistaken in assuming that the "fundamental conflict" he identifies is, in fact, between "law & economics", on the one hand, and Catholic legal theory, or Catholic social thought, on the other.  I could not agree more with Mark that the "Artistotelian/Aquinean tradition" is and must be at the heart of our project, as is "meditation upon the nature of the good."

But . . . it is not clear to me (as it seems to be to many Catholic thinkers) that "law and economics" is in "fundamental conflict" with this tradition, or with such meditation.  Yes, "law and economics" can pull us down the wrong track, when practitioners purport to move from (a) the fact that economic analysis is not about the good, but about efficient ways to maximize utility and satisfy preferences, to (b) the conclusion that law is not about the good.  But there is more (much more, I think) to "law and econ" than this. 

What's more, I think it is imperative that Catholics (and others who want to keep "the Good" -- and not just goods -- at the heart of the conversation) engage with, and in, "law and economics."  It is, I believe, a mistake for Catholics (of any "stripe") to write off this methodology.  In my view, there is nothing virtuous, or Catholic, about waste and inefficiency.  To be sure -- our moral commitments to solidarity, subsidiarity, etc., will and should often lead us to sacrifice efficiency, or to eschew wealth-maximization, in order to do right and achieve the Good.  But even the hardest of hard-core Catholic Social Democrats should, all things being equal, prefer smart, efficient, and effective policies and doctrines to ones that -- however well-intended or nice-sounding -- turn out to be wasteful and ineffective.  "Law and economics", well practiced, can -- it seems to me -- help us to be better stewards, and therefore better promoters of the common good.

But Mark and Steve B. can set me straight. . . .

Rick