Abstracts Law

Justifying Constraint in the Legal Regulation ofReproduction

by Samuel Edward Walker

This thesis seeks provide an original contribution by extending rational choice theory into a general theory of law which has not been done before. I term this theoretical framework rational constraint to distinguish it from other rational choice and contractarian theories. This is predicated on the increasing heterogeneity of contemporary populations and the claim that moral claims cannot resolve conflicts because they are not truth-apt (as I argue in chapter 1). I seek to extend rational choice theory by further developing the tradition of social contract theory as it applies to law in the contractarian tradition of Thomas Hobbes and David Gauthier. This can roughly be termed the contractarian version of social contract theory (in the introduction I distinguish this tradition from the other social contract tradition of contractualism). This tradition takes rationality to be a practical method for determining action based upon self-interest – this assumes that agents are not concerned about the wellbeing of others. Even so a broad range of restrictions are possible – this thesis seeks to take Gauthier’s theory (as the most contemporary and developed contractarian theory) further by providing a system that takes account of higher-order constraints as well. This approach is not concerned with the application of different competing sets of moral claims – rather the application of self-interested rationality to law is the focus and the original contribution of this thesis. Ultimately, I seek to provide a method for designing legal rules that can minimise conflict and cost in a heterogeneous population. The subject that I apply this framework to is reproduction which is non-economic in nature thus extending rational choice beyond it normal economic haunts. Moreover it is an area of law that concerns a part of life subject to a great deal of moral controversy thus demonstrating the superiority of the extended rational choice framework over moral systems in designing laws. Advisors/Committee Members: HAYRY, MATTI M, Holm, Soren, Hayry, Matti.