Methodological Individualism

280 The new institutional economicsto social efficiency. The only clue is Posner’s suggestion that moral principleshave survived because they are efficient. But, as several commentators haveobserved (Field, 1981: 184f, 196; Granovetter, 1993: 22ff), this is a functionalexplanation and, as such, scientifically dubious, unless supplemented by anaccount of the mechanism that make functional (efficient) principles survive. 28Posner’s Economic Analysis of Law is notorious for its absence of suchmechanisms. 29In his well-known article ‘A Theory of Primitive Society, with SpecialReference to Law’ (1980) – also included as chapters 6 and 7 in his second mostimportant work, The Economics of Justice (1981) – Posner’s functionalism is evenmore explicit, but he also goes some way to meet the criticism directed at thisdoctrine. Posner closes his discussion of primitive law in the book by asking twoquestions: ‘First, if it is true, as I have argued, that the legal and other socialinstitutions of primitive society are economically rational or efficient, whatmechanism drives primitive society to this surprising result?’ (p. 204). No lesssurprising than this result is the note Posner attaches to his question: ‘I emphasizeonce again that, in suggesting that primitive people are economicallyrational, I am not making any statement about their conscious states. Rationalbehavior to an economist is a matter of consequences rather than intentions andin that respect resembles the concept of functionality in traditional anthropology’(p. 204, note 72; cf. 1980: 5). This is a controversial statement, to say theleast, since rational choice is usually conceived of as a form of intentional explanation.If consciousness and intentions are not involved, the most obviousalternative is selection, and this is presumably what Posner really has in mind:efficient institutions survive because they are best adapted to the environment.One reason selection is a possible mechanism is that primitive societies and theirenvironment are so stable. When the rate of change is slow societies have time todevelop efficient adaptations (1980: 53; 1981: 205).The second question, Posner addresses is this: what factors are treated asexogenous (not possible to change) and what factors are treated as endogenous(possible to change)? He admits that in his analysis, both of common law and ofprimitive law, a background of other institutions is treated as exogenous. Theefficiency of the endogenously adapting institutions, therefore, is relative to theexogenously fixed background institutions (Posner, 1981: 205f). More important,for my purposes, is that Posner, thereby, seems to relinquish any pretensions tobeing a strong methodological individualist. The question is, whether he is amethodological individualist at all?For my purposes, the most important point is that Posner’s analysis seems tobe, neither rational choice, nor methodological individualism. Rational choice isa form of intentional action, but Posner renounces the assumption of consciousintention on the part of actors. In its stead, he talks about adaptation, butwithout specifying the mechanism at work. In the absence of such a specification,Posner’s analysis ends in an untenable form of functionalism: socialinstitutions are said to survive, because they are efficient for society as a whole.But absent a mechanism of selection, or some other form of adaptation, such