Monthly Archive for April, 2006

Consequentialism, deontological ethics, and prima facie duties

Published on April 29, 2006 in Jurisprudence and Philosophy. 1 Comment

In a recent post, I claimed rather traditionally that consequentialism and deontological ethics are based on two basic moral intuitions that coexist peacefully over a wide range of normal situations but lead to sharply different results in extreme situations. Usually, these extreme situations pit the vital interests of one person or a handful of people against the interests of many others, for example, they present us with the choice to kill one innocent person to save the lifes of many others. The key difference between consequentialism and deontological ethics in these instances is, assuming that killing the one would in fact save the others, that deontological theories picture the agent as having to make a tough moral choice (commit a moral wrong to save the lifes of others?) whereas for a consequentialist the moral answer is clear: the interests of the many trump those of the few. Consequently, the agent is morally required (not just permitted, or excused) to kill one innocent person to save the lives of many. For the consequentialist, no moral wrong is done in these situations. It is that particular feature of consequentialism that I find unpersuasive. In a reply to my post, Ben Nelson writes that my

analysis … is based on a popular error, which is the notion that consequentialist systems are in some way incompatible with duty- or rights- based ones. They are quite compatible, if one has the right meta-ethical account of rights. Rights arise out of dire social conditions which necessitate some social standard, and they arise specifically when somebody realizes that an improvement in social conditions can arise if and only if certain laws were made. In other words, if we have the right understanding of where rights come from, deontology dissolves into consequentialism proper.

I am not convinced. First, the factual question of how rights come into being does not address the normative question of whether the rights of the few should be sacrificed for the many, and whether in extreme situations as I describe them above, there is a genuine moral conflict at all. Second, the recasting of deontological positions in consequentialist terms, e.g., along the lines of R. M. Hare’s “Kantian utilitarianism” or, somewhat less ambitiously, as rule consequentialism, has its own methodological problems. The most significant problem is the collapse of any form of multi-step consequentialism into act-consequentialism.

What does that leave us with? Probably a somewhat messy moral world in which there are properties of actions, motives, and external states of affairs that have moral significance, but that cannot be ordered a priori in any meaningful way. Incompatible prima facie duties, both deontological and consequentialist in character, sometimes require us to make tough moral choices, where in a specific case principle A trumps principle B, but where the general normative force of the defeated principle continues and may well emerge victorious in different circumstances. Central to a meaningful first-order moral theory is therefore an understanding of how to balance competing normative claims, without recourse to a single, unified criterion for correctness. This is an area, where moral theory can probably learn a great deal from the law, because courts have always been cursed with having to make these kinds of messy tradeoffs.

[tags]consequentialism, deontological ethics, prima facie duties, law, balancing[/tags]

Robert Alexy’s Radbruch by Brian Bix

Published on April 25, 2006 in Jurisprudence. Closed

This new paper by Brian Bix looks like a must read. Here is the abstract:

Gustav Radbruch is well known for a “formula” that addresses the conflict of positive law and justice, a formula discussed in the context of the consideration of Nazi laws by the courts in the post-War German Federal Republic, and East German laws in the post-unification German courts. More recently, Robert Alexy has defended a version of Radbruch’s formula, offering arguments for it that are different from and more sophisticated than those that were adduced by Radbruch himself. Alexy also placed Radbruch’s formula within a larger context of conceptual analysis and theories about the nature of law. Both Radbruch and Alexy claim that their positions are incompatible with legal positivism, and therefore count as a rejection (and perhaps, refutation) of it. This paper, presented at a Conference on the work of Gustav Radbruch, looks at Radbruch’s formula and Alexy’s version of it. It focuses not so much on the merit of the Radbruch-Alexy formula, as on its proper characterization, and its appropriate placement within the larger context of legal philosophy. The particular focus is the methodological question of what Radbruch and Alexy’s formulations – and their strengths and weaknesses – can show us about the nature of theorizing about law.

[tags]Alexy, Bix, Radbruch, natural law[/tags]

Efficient Anarchy?

Published on April 15, 2006 in Hobbes and Law and Society. Closed

In a recent paper, Efficient Anarchy, Peter Leeson examines the conditions under which anarchy is efficient. There are, essentially, two reasons for the existence of anarchy as a means to organize a society. Either the costs of government exceed the gains from government, or the gains from government are so minimal that, taking transaction costs into account, individual agents lack the incentive to create one.

What are the costs of government?

  • Organizing collective action, including, of course, the opportunitiy cost of those whose individual choices are being replaced by collective action.
  • Enforcing the rules promulgated by the government, which requires courts, police, and an admininstrative system.
  • The costs of providing traditional public goods such as roads and education.

The primary gains from government are the reduction of uncertainty and the lowering of transaction costs for exchanges among strangers. A simple formula captures this framework. L (= low) is the net welfare in a state where government is absent. H (= high) is the net welfare in a state where government is present. G is the cost of government. It follows that government is rational only if H – L > G. Where H – L < G, anarchy is efficient.

There are certain common environmental factors that influence both the direct costs of government and the indirect gains from government. Here is a partial list.

  • Population size. The greater the population size, the higher the cost of organizing and enforcing collective action and the greater the potential benefits from trade.
  • Diversity. The more diverse a population in terms of endowments, preferences, and productive abilities, the higher the cost of achieving consensus and the greater the benefits from trade
  • Social norms facilitating exchange. If such norms are present (e.g., arbitration, non-communal possessions), trade will yield greater benefits, which diminishes the potential gains from formal government.

Against this backdrop, Leeson proceeds to outline the two types of efficient anarchy:

Having established what affects the cost of government and what affects the benefits government provides by moving society from a lower trade equilibrium to a higher trade one, it is now possible to distinguish two types of efficient anarchy: (1) “big G anarchy,” in which despite the presence of a substantial gap between social wealth in the higher vs. lower trade equilibrium, government is too costly to justify its emergence, and (2) “small H – L anarchy,” in which even though government may be inexpensive to create, the difference between social wealth in the higher and lower trade equilibrium is so small as to make the state inefficient on cost-benefit grounds. At least theoretically then, these are situations in which statelessness is socially optimal. A society of rationally self-interested agents operating in either environment would thus (rationally) choose anarchy over government.

One of the most intriguing aspects of Leeson’s paper is that he is unafraid of applying his theoretical framework to the real world. “Small H – L anarchy,” Leeson proposes, is observed

in small, primitive societies … such as the Eskimo tribes of the North American Arctic, Pygmies in Zaire, Indian tribes like the Yoruk of North America, the Ifugao of the Philippines, the Massims of East Paupo-Melanesia, Indian tribes of South America like the Kuikuru, the Kabyle Berbers of Algeria, the Land Dyaks of Sarawak and the tribal Santals of India, none of which had governments.

In these societies, because of their relatively small population size, exclusionary social norms, and homogeneity of endowments, preferences, and productive abilities, the markets are so thin that the benefits from government (moving from L to H) are not sufficient to outweigh the costs G of forming even the most minimal state. Leeson’s example for “big G” anarchy is international relations. Given the world’s population of 6.5 billion and significant differences in endowments, preferences, and abilities, the potential gains from trade are enormous. International anarchy, consequently, must be the result of the costs of truly global government outweighing even those massive gains. In Leeson’s words:

Organizational costs [of a world government] would also rise considerably because of the vast increase in the heterogeneity of the relevant population. If it is difficult to arrive at a decision regarding where a new police station is to be located within a community of 20,000 suburbanites, imagine the difficulty of coming to a much larger decision when over a billion people are involved from Beirut to Mexico City.

What is one to make of Leeson’s argument? I find the explanation for “small H – L” anarchy more compelling than the case for “big G” anarchy. One of the main problems with “international anarchy” is that we are leaving the individual as the unit of analysis. Nation states are not individuals and applying an incentive based framework to analyze and explain their actions is fraught with methodological problems. In other words, “big G” anarchy is a very different kind of anarchy than “small H – L” anarchy, the former more metaphoric, the latter more directly rooted in the behavioral postulates of economics. In practical terms, it makes little sense to identify elements of anarchy in the relations between a German and a US citizen, just because their respective nation states relate to each other in a metaphorical state of nature.

Rather than looking to the international domain, “big G” anarchy is probably much more prevalent at the micro-level of interpersonal exchanges for which the costs of legal enforcement are too high. There must be millions of exchanges taking place in the US every day, where one party is wronged but effectively left without recourse because the costs of accessing the legal system are too great. For example, few plaintiffs lawyers would take a $1,000 case, and for many, the opportunity costs of going to a small claims court far outstrip the potential gains from winning the case. That’s not a “small H – L” problem, because the gains from moving to the higher level of trade would be considerable. Rather, the cost of providing access to the legal system for minimal “sub-legal” claims is too high.

Leeson’s paper is worth reading, if only because the question “Why have government at all?” is no longer seriously asked by mainstream political science. There is no good reason for ignoring this fundamental question. Let’s not forget that modern political science originated with the problem of anarchy in the 17th Century, when Hobbes broke with political Aristotelianism. Of course, Hobbes incorrectly conceived of the natural state as a zero sum game, which led him down the path of government as the necessary enabler of trade. But the fact that Hobbes got the answer (or at least some fundamental assumptions of his analysis) wrong doesn’t mean that he didn’t ask the right question.
[tags]anarchy, efficiency, economics, international relations[/tags]

Immigration and Terrorism

Published on April 14, 2006 in Law and Society. Closed

David D. Friedman, economist and free thinker extraordinaire, has this to say:

Listening to the current immigration discussion, I am repeatedly struck by the absurdity of linking that issue with the issue of preventing terrorism–usually put in terms of some phrase about America controlling its borders.

The linkage is absurd for two different reasons. The first is that current illegal immigrants are not Muslims and have no connection with or allegiance to Islamic organizations, terrorist or otherwise. Most of them are Catholics. They are no more likely to support Islamic terrorism than the people already here—probably less likely.

The second is that the U.S. doesn’t control its borders, isn’t going to control its borders, and probably cannot at any acceptable cost control its borders, in the sense relevant to the terrorist issue. In 2004, the most recent year for which I found figures, there were more than eighty million tourist arrivals in North America, presumably most of them in the U.S. Anyone with sufficient resources and ability to pose a serious terrorist threat can get into the country as one of those tens of millions—he doesn’t have to scramble through a tunnel under the U.S./Mexican border. And making it a criminal offense to hire illegal aliens will have very little effect on those aliens who are working for al-Qaeda. They already have a job.

There are, of course, many other arguments pro and con on the subject of immigration, a subject I may return to in a later post. But this one isn’t an argument, it’s pure demagoguery.

My own view of the subject is best summed up in an old Buffy Sainte Marie song:

Welcome, welcome, Immigrante,
To my country welcome home.

Amen to that!
[tags]immigration[/tags]

Making the World Safe for Utilitarianism

Published on April 4, 2006 in Philosophy. 1 Comment

Non-relativistic moral theory oscillates between the two great intuitions of consequentialism and deontology. Consequentialism is intellectually rigorous, autitable, and eminently practical. The problem is that it leads to horrendous results, where the few are sacrificed for the good of the many. As Bentham famously said, “everyone is to count for one and no one for more than one.” Deontological theories, or rights-based approaches, focus on the individual. In Nozik’s words:

There are only individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. What happens is that something is done to him for the sake of others. Talk of an overall social good covers this up. (Intentionally?) (Anarchy, State, Utopia)

The blueprints for modern deontological theories were outlined by Kant and Hegel. Practical reason (starting from “I”) or recognition (starting from “you”) demand that we attribute individuals with a hard nucleus of rights – rights sufficiently hardened to resist the pull of consequentialist considerations that can only be restricted and in some instances overridden by conflicting rights. That is all well and good and leaves most thoughtful people torn between these two intuitions, hoping that in the normal course of events consequentialism and rights-based theories won’t clash. Within that “normal” realm of peaceful coexistence, consequentialism has distinct advantages over rights-based moral theories, because its decision procedures are rational, require only a minimal set of anthropological assumptions, and yield sufficiently concrete results to be useful in practice, e.g., in designing social policy. Last but not least, consequentialism is significantly more compatible with the market and with economic theory than its deontological competitors. Given the significance of trade, exchange, and the market as a decentralized ordering principle of human cooperation and life, that compatibility underwrites much of the plausibility of consequentialism.

But what if the normal conditions don’t obtain? What if the normal conditions aren’t even normal at all but rather the exception to the norm? What if there are pervasive patterns of racial, social, and gender discrimination that undermine the consequential calculus already at an epistemological level? What if liberal democracies start torturing people, not to defuse the proverbial ticking bomb but to gather intelligence of questionable probative value?

Jonathan Wolff (University College London) doesn’t propose a solution to the latter problem. Instead, in Making the World Safe for Utilitarianism, he proposes a set of criteria to help us distinguish what he terms “fortunate circumstances” (my “normal conditions”) from “unfortunate circumstances.” Under fortunate circumstances, consequentialism works. Under unfortunate circumstances, it may lead to horrendous outcomes.

[Maximizing consequentialism is] very powerful but also very dangerous. Like a powerful but destructive technology, the task is understanding when to use it and when not to.

Here then are the four conditions of fortunate circumstances:

  1. There need to be regular opportunities of a similar nature. (Call this the assumption of “many chances”.)
  2. No single loss (or likely repeated series of losses) creates a type of level of harm for any individual from which recovery is very difficult or impossible. (The assumption of “recoverable loss”.)
  3. There is no reason to doubt that the probabilities run true. (The assumption of “true odds”.)
  4. All relevant gains and losses can be quantified and compared to each other. (The assumption of “weak commensurability”.)

In the absence of a unifying moral theory, knowing the conditions under which a partial theory applies is absolutely critical. Wolff’s list of criteria significantly advances the demarcation and classification effort. Highly recommended.
[tags]philosophy, utilitarianism, consequentialism, Wolff[/tags]