Law And Economics Of " Rational Choice " Theory And Its Development Trend

In this article, the essence of rational choice theory and the evolution of analytical tools were summarized separately from "utilizable" and "the value" aspects. The author affirmed the development direction of positivism and the value of this theory.Rational choice theory is the cornerstone of Economic Analysis of Law. At first it comes from Adam Smith "the economic man" supposition: self-serving individuals participate economical activities in order to maximize the benefits for their selves, and those behaviors will be by "an invisible hand" guided to promote public interests effectively, intentionlessly. Based on this, the Neoclassic Economic developed it into in the purely utilization significance. Its performance is: target -consistency, the author stably grasp the preferences to maximize his interests from beginning to end; method-uniformity, he could gain the complete information, own the perfect knowledge and judgment to calculate the economic interest; income-maximization, he could precisely calculate the expected utility, realizes the maximized effectiveness in certain restraint.This kind of "the perfect rationality" is subjected to Behavioral Law and Economics scholar's judgment. Simon first proposed that "the bounded rationality", which thought the person in the economic decision-making process faced with two kinds of limitations: the cognitive capacity and the computing power. Daniel Kahneman, Amos Tversky, Sunstein, Thaler and other scholars leaded psychology theory, the results of the laws of economics, questioned the rational choice theory of rational expectations, utility maximization, stable preferences, complete information, to reflect the real human behavior: bounded rationality, limited circumstances, as well as limited self-serving,From the aspect of valuation, American law economical scholar Malloy also pointed out that the rational choosing that involves the value- judgment is a creative activity. The rational choosing is value-significance forming and the value-conflict mediation process unification. The value rationality choice needed to be restrained at the same time as well as the law, the morals, the cultural, the ideology, and so on; on the other hand must be restrained by the author's experience, emotion, the innermost need. The rational choice begins at the information explanation, and continues, interacts. Each kind of values, ideologies tried to compromise during this process. The function, which the law displays during this process, is to explain and forecast the author's countermeasure.Obviously, the essence of "rationality", from "the economic man", the neoclassic economic "the perfect rationality", developed into the Behavioral Law Economic "the bounded rationality", and "the value -judgment rationality", advances gradually toward the substantial evidence direction.This positivism direction also manifests in the analysis tool's evolution. The cost - benefit analysis is the mainstream analysis in the era of "the perfect rationality", when static equilibrium adopts, and the balanced -perfection analysis is the mainstream analysis when the dynamic gambling premise adopts. The behavioral analysis is the tool, which in "the bounded rationality", under the dynamic gambling premise adopts. Three kinds of analyses represent "the rational choice" theory to the real diagnosis development three stages.First stage, the cost - benefit analysis takes price theory's three importantsupposition——rational person, stable preferences and the balanced analysisas its foundation. It analyses the legal matter by the market principle, thinks that the legal rules forming is another kind of "recessive price"; people's legal relationships is just another form of transaction; the legal function, namely lies in causing the people to carry on the cooperation in the minimum cost. However, the paradox of cost - benefit analysis is: first, the legal cost and benefit comes precisely the quantification comparison with the difficulty by sole value; second, the cost - benefit analysis still involves the author's value-judgment, surpassing the economic rationality's inspection; third, the cost-benefit analysis is in static equilibrium condition, in the reality its utilization is limited.The second stage, balanced - perfection analysis (Game Analysis) is in the condition of incomplete information, dynamic gambling model, studying the author's decision-making by the legal rules . Game Analysis insists balanced in the methodology individualism, reveals that in the equilibrium the participator's decision-making to maximization; simultaneously contains the overall factor, because equilibrium needs all participator's maximization decision-making; also the official system (politics, economy, contract and so on) with the unofficial system (the values, the moral, the customs, the ideology and so on) belong to Game Analysis's background, restrains the individual's behavior to pursue the maximization; more importantly, balance achieving depends on participator's value judgment. Therefore, the balanced -benefit analysis is truer, more persuading.The third stages, the behavioral analysis furthers empirical study on individual's decision-making mechanism according to the psychology, the real diagnosis observation as well as the behavioral experiment obtained. It promulgates the foundation and the process with the rationality of decision-making, discovering many "irrationality" or "abnormal" decision-making, for instance, bounded rationality, the construction of personal preferences, risk loathing, extremeness aversion, optimistic bias effects, framing effect and so on. Thus, it can be seen, in the behavioral analysis, the decision-making psychological features, the behavior pattern and the decision-making result are the interacting. When faces complex and unclear significance reality, the author is probably influenced by the enlightenment, prejudice, experience as well as the social norm.The "rational choice" theory essence and the analysis paradigm have the feasibility and the real diagnosis significance more and more, and its theory significance lies in:First, from the prospect of individual decision-making, the theory will well explain the value-goal pursued by the law, as well as the measures to realize these goals, enhancing the Law of Economics to explain and forecast, making it get away from the difficulty of keeping off the reality.Second, the application of rational choice analysis forecasts the reaction of the people by the rules of legal judgment, the effect of the law, then provides the basis for the choice of law evolution.Third, rational process, the value of rational guidance tectonic good legal system environment, and promote the legal system designing to minimize or eliminate the bias so that the participator's computing power and gained information consistent with the requirements of the optimal decision-making, guide rational decision-making.