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The first purpose of the article is to clarify the meaning of arguably three main imperfections of human nature—irrationality, imprudence, and immorality, and to examine conceptual relations between them. It is argued that: (a) an agent is irrational if she fails to maximize her utility function, or if she discounts her future utility hyperbolically; (b) an agent is imprudent if she acts irrationally (which implies that rationality is an element of prudence), if her discount rate is exceedingly high, or if she has self-destructive desires; (c) an agent may be immoral either in social or in perfectionist sense. Its second purpose is to show that one of plausible ways of classifying approaches to law is by specifying what imperfections of human nature they allow to be counteracted by law. It is argued that relying on this criterion one can distinguish four approaches to law: extremely liberal, moderately liberal, welfarist, and moralistic. Underlying this criterion is the presupposition that law can be interpreted as a mechanism for counteracting imperfections of human nature.

Keywords: Irrationality; approaches to law; hyperbolic discounting; immorality; imprudence; paternalism

Document Type: Research Article

Publication date: January 1, 2007

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  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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