“[T]he hypothesis is that modern man has become incapable of making the choices that are required to prevent his exploitation by predators of his own species[.]”
This article explores one of the foundational pillar theories of Law and Economics and specifically Public Choice Theory as espoused by Nobel Laureate James M. Buchanan: the “Samaritan’s Dilemma.” Using the Biblical parable of the Good Samaritan, Buchanan imagines a “dilemma” faced by the Good Samaritan when encountering a beaten and bloodied man left to die on the road to Jericho. Using Game Theory, Buchanan constructs a moral quandary that the man from Samaria must necessarily resolve within himself in deciding ultimately whether to lend aid to the beaten man left to die.
Law and Economics, born in the twentieth century, theoretically establishes “efficiency” as its baseline. In evaluating the law from this efficiency perspective, neoclassical Law and Economics economists’ primary hypothesis is that individuals are rational and respond to incentives in a rational fashion. Law and Economics is built on the fundamental belief that markets, particularly free markets, are “more efficient than courts.” Undergirding this theorizing is the presumption that incentives are the primary motivators of individual behavior; how individuals respond to incentives provides a laser-like focus for Law and Economics. If human actors are “rational and respond to incentives” in a rational manner, then how rationality is defined becomes important for Law and Economics hypothesizing. Bottom line rationality for the Law and Economics economist is that individuals are motivated by self interest and that the rational reaction to an incentive will be to act in a self-interested, wealth-maximizing way. Put simply, a Law and Economics economist would consider a legal situation efficient where rights are allocated “to the party who is willing to pay the most for [them].” Conversely, when an incentive generates an action that results in a penalty, individuals will perform that action less to avoid the penalty.
Law and Economics employs Game Theory to mathematically predict how individuals will react in given scenarios based on incentives provided and rationalities defined. In determining mathematically and logically actions that “players” should take to secure the best outcomes for themselves in a wide array of “games,” Game Theory considers itself the “science of strategy.” Perhaps the greatest overriding consideration when employing Game Theory is the interdependence of all choices employed by all players/participants. Or, stated another way, the ultimate outcome for each participant is dependent on the choices or strategies of all participants, requiring players to think about their own strategies while considering the strategies of all other players in coming to their own conclusions. Working through strategies to likely predicted outcomes, based on rational reaction to incentives, is the game or puzzle in Game Theory.
With that brief introduction to Law and Economics and Game Theory, this article begins by reconstructing the Biblical parable of the Good Samaritan. Next, the article will provide a fundamental description of the Samaritan’s Dilemma, as espoused by Public Choice economist James Buchanan, explaining how Buchanan’s theory turns the Christian parable upon its head. Next, the article will describe the reasons that the Samaritan’s Dilemma is a farce – a theory best left conceptualized rather than instrumentalized. In describing the farcical Samaritan’s Dilemma, the article will focus on racial capitalism and its historical evolution as a means of understanding the hollow siren’s call of this concocted “Dilemma.” Finally, the article will introduce the reasons that the Samaritan’s Dilemma together with much of law and economics theorizing is intellectually bankrupt. Thereafter, the article will call for a deeper intellectual critique of Law and Economics than has been marshaled to date.
André Douglas Pond Cummings, The Farcical Samaritan's Dilemma, 35 J. Civ. Rts. & Econ. Dev 219 (2022).
Available at: https://lawrepository.ualr.edu/faculty_scholarship/288