I agree with Professor Amartya Sen that the new intellectual trend in legal studies developed under the label of “law and economics,” by only, or mostly, referring to the narrowest version of “rational choice theory,” deprives itself of a complex and comprehensive understanding of both disciplines. If law studies wish to emulate the scientific rigor that is promoted by the dominant neoclassical school of economics, then by the same token it is understandable that they would be tempted to adopt the strict utilitarian principles and methodology of “rational choice theory” in its most rigorist form.

Professor Sen made an interesting distinction between this old hard-line version of the “rational choice theory” according to which everyone aims at maximizing his/her own interest and a more flexible or permissive version, such as that developed by Gary Becker, which explains how interest or concern for others can constitute an integral part of our own self-interest. Sen in his paper commented on such explanations in the following terms: “They may well love other people, but whatever their feelings are towards others is reflected in their own welfare, and it is their own welfare that they continue to pursue. That is, they may do nice things to others precisely because they would themselves suffer, given their concern for others, if they neglected these concerns.”

At this point Sen proposes an interesting counterexample originally given by the economist Ragnar Frisch. It is the story of two cakes.