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property and liability as an economic system
"There are three basic institutional systems for governing the exchange of property. One is consensual: the exchange of property rights in ordinary markets. The other two, however, are nonconsensual: the involuntary exchange of entitlements in either civil or criminal liability cases. In The Exchange Order, Richard Adelstein argues that while markets, torts, and criminal justice are ostensibly different constellations of institutions, organizations and individuals, they are remarkably alike. Each governs a particular kind of exchange through a distinctive set of institutions, rules and procedures. They have all evolved over many centuries from the same root, a deep-seated human propensity to communicate with others through trade, to exchange goods for goods and costs for costs as a means of reconciling opposing interests and increasing personal welfare. They perform the same social function, facilitating individually efficient exchanges of rights and compensatory prices, in very different exchange environments that demand very different institutional responses to the problem all three are in place to solve: identifying efficient transfers and seeing that they are completed. The Exchange Order provides a sweeping historical, comparative, and philosophical analysis of how rights and objects, goods and harms, are exchanged in these apparently very different realms. What unites them is a core norm: take only what you can pay for, and pay for everything you take. In markets free exchange is governed by prices and the willingness to sell or buy. Tort and criminal law apply when consensual exchange is violated. The violation is the non-consensual seizure of entitlements and the payment is a liability price on the taker that compensates the victim for the costs imposed by the taking. Tit for tat, an eye for an eye, is the principle of exchange that unites markets, tort and crime."--Provided by publisher
"The criminal law prohibits certain acts, like theft or assault, so one might suppose that the law's objective is to deter as many such crimes as possible. One way to do this would be to make the punishment for every crime as severe as possible, so awful that almost no one would think the crime worth committing in the face of the punishment. But no real system of criminal justice does this. Instead, punishments are set to "fit the crime," to impose on every offender a punishment that matches the harm the offense has done. This won't deter all crimes, but only those that aren't "worth it" to the offender - crimes that create more satisfaction for the offender than harm to his victims will be tolerated or encouraged by these punishments, not deterred. This book argues that not just criminal justice, but civil tort liability and ordinary economic markets as well are all governed by this same principle, and that, in the conditions to which it's suited, each of these seemingly very different institutions performs the same, fundamental social function - making people who harm others compensate those they've harmed, tit for tat, an eye for an eye. In this way, rights not just to enjoy the benefits of goods but to impose harm on others are exchanged, voluntarily in markets and involuntarily in tort and crime, continually moving rights toward the people who value them the most, those who would do harm or those who would bear it. Together, these three ancient institutions constitute the exchange order, a deeply rooted system of social interaction that seeks to reconcile opposing interests in a range of environments, one exchange at a time, urging all of us to take only what we can pay for, and pay for everything we take"--Provided by publisher
Introduction: Governing exchange -- Part I. Property. 1. Property and exchange -- 2. Exchange and efficiency -- 3. Property and utility -- 4. Property and technology -- Part II. Liability. 5. Externality -- 6. Tort liability -- 7. To encourage the others -- 8. Criminal liability -- 9. Crime and punishment -- 10. Trials and bargains -- Afterword: The exchange order.
Includes bibliographical references and index.
Adelstein, Richard P. (Richard Philip), 1947-
New York, NY : Oxford University Press, 2017