Morerecently, however, claim (III), the doctrinal claim has received themost philosophical attention.Finally, we might understand the distinction among the three strandsas a difference in the view each adopts about the instrumentalism oflaw. For purposes of an exposition of the economictheory of law, however, it is useful to distinguish these twoquestions.Critics of economic analysis of law contend that this failure toaddress the normativity of law provides ample grounds on which toreject it as an adequate theory of law. For many other legal rulespromulgated by legislatures and courts, however, the argument may notapply.To understand the first question, recall that, in the projects ofpolicy analysis and political economy, micro-economic theory serves asa positive theory of behavior. Second, onemight more fundamentally design the judicial system from scratch. An analogy with economicsmay clarify the intersection. First, individuals with identical attributes forwhich they are responsible should have identical well-being. This behavior does not necessarilyyield efficient rules or institutions.Will appropriate redescription resolve all conflicts between“preference” and “obligation”? If the well-being of agents withbad luck is unusually responsive to their bad luck, no fair allocationexists. There is a sense in which each of thedeterminants of the structure of the social welfare function is goodfor us without necessarily being good for anyone. As a consequence, no efficient and envy-freeequilibrium exists.The arguments in section 5.21 were directed against cost-benefitanalysis, a specific and concrete form of welfarism developed toimplement the more abstract evaluative ideas underlying welfarism.Objections to this specific instantiation of welfarism do notnecessarily run against the more general class of evaluative criteria.Similarly, the argument in section 5.22 focused on the institutionalstructure of adjudication; we argued that this structure was hostileto an implementation of a welfarist theory of adjudication.Nevertheless, intuitively one might expect greater compliance toemissions standards regulated through a criminal penalty than toemissions standards regulated by a tax, even if the expected paymentfor each available action were identical under the two regimes. Judges in common lawcountries have generally not been trained systematically in economicsand statistics, two disciplines necessary (but not sufficient) for thedetermination of social welfare under alternative legal rules.As noted earlier the political economy strand of economic analysis oflaw itself contains two strands that are in tension with each other.On the one hand, the radical political economy strand seeks only toexplain legal phenomena rather than to prescribe either the structureof legal institutions or the content of particular legal rules. This controversy was both general and doctrinally specific. The question of compatibility between economicrationality as preference and obligation then reduces to the questionof whether obligations may be integrated with the other concerns ofthe agent into an all-things-considered ranking that satisfies thepreference axioms.Doctrine organizes the vast legal materials of advanced societies aswell as legal education and much of legal scholarship. Moreover, the corecommitments and achievements of economic analysis do not lie in theconstruction of a normative theory of adjudication.