The Principle of Social Wealth Maximization and Rule Utilitarianism: Some Considerations

This article aims to discuss the key aspects of the two main versions of Richard Posner’s proposal of maximizing social wealth. The underlying idea is that much of the debate around these versions helps illuminate the challenges of providing a solid moral foundation for the application of economic principles to law. One of Posner’s central arguments is that his principle of wealth maximization avoids many of the classic problems associated with traditional utilitarianism. In the final part of the article, I will tentatively suggest that rule-based utilitarianism, at least in principle, overcomes several of the issues identified by Posner, as well as some of the criticisms raised in the specialized literature regarding his proposal. Finally, I will outline a pragmatic-instrumental approach through which rule utilitarianism could be applied, particularly in the context of European continental legal systems.