25 June 2005

Questions about Law and Economics

One participant wrote up some thought-provoking notes for comment.

... I'm pretty sure that it is possible to disambiguate the L&Eers' answer to the question about the nature of their bicycle. Here's my current best attempt to do so.

1) L&E is at base a normative paradigm, claiming that laws and mandatory govt interventions are morally justified because they help people to escape PD situations.

2) The crucial bit to notice: the circumstances in which PDs arise are coextensive with what Hume calls the "circumstances of justice." (consider what would disable the PD: extreme altruism and/or superabundance-- i.e. PD's arise in precisely the circumstances in which principles of justice are traditionally said to be acquire their urgency.)

3) L&E implies a theory of justice: justice is whatever principles allow individuals to maximize their utility functions (in the face of emergent PD situations).

If that's roughly right, how does this theory of justice compare to familiar rivals? A few suggestions:

a) ECJ ["value maximization, wealth maximization, efficiency", I think] is a form of consequentialism. Can standard philosophical objections to consequentialism (eg does not take seriously the difference between persons, etc.) be reformulated into ECJ-specific objections?

Yes. Value maximization is particularly subject to some critiques because it is a purposely weak form of utilitarianism. Depending on the initial allocation of wealth, there are many outcomes that maximize value, so it is open to the objection that it is an incomplete theory.

One person might, for example, object that some value-maximizing outcomes have lots of poor people. Another person might object that another value-maximizing outcome has rough equality, even though some people are more deserving than others.

That incompleteness is there on purpose. Economists don't want to get tangled up in the hard questions of wealth distribution, when an incomplete theory can still handle 99% of the public policy questions that come up. (I am talking quantity here: the remaining 1% might still be the most *important* questions.)

b) Does ECJ provide a justificatory base for liberal political institutions? That is, does ECJ give "trumping" power to associative/deliberative/political participation held by all citizens as equals?
Value Maximization does provide justification for liberal political institutions, but not trumping power. It gives close to zero reason, for example, for letting people vote unless elections generate good government. Often elections have that effect, but not always. Value maximization would say that Hong Kong was well governed as a British colony in the 1990's, while India was poorly governed as a republic. It would not take as given that allowing poor people, children, or women to vote was a good thing-- it would look to the effects (e.g.: Macarthur wanting women to vote in Japan because women don't like wars).

Value maximization strongly supports free societies, because the instrumental benefits are clear (e.g., I'll be more productive if the dictator has committed not to steal everything I produce). It supports, but more diffidently, free *political institutions*, because those tend to produce free societies, but not always. I won't be productive if my neighbors are likely to vote in a free election to seize my property. But a dictator is probably more likely to steal than my neighbors.

Some economists might argue that a genuine, if minor, benefit of elections and deliberation is that citizens enjoy the process. I have doubts about that, as an empirical matter. People might better enjoy not having to feel guilty about being ignorant of politics, or might enjoy the comfort of knowing that sound minds are making the political decisions instead of criminals, the feeble-minded, TV-watchers, the selfish, etc. It all depends on the setting.

c) The deepest approach, I believe, would be to exhume dimensions of human value to which the economic approach is blind. Thus we might ask: where does the meliorative operation of ECJ "run out?" That is, what features of the world does ECJ necessarily treat as exogenous or morally neutral givens (e.g. can ECJ tell us whether/when starting place inequalities are just or unjust?).
This does go deeper, so I start to flounder. Value maximization is about satisfying preferences given an initial distribution of wealth.

Wealth includes ownership of various rights, such as my right to move from Bloomington to Chicago. If I were a serf, my master would own that right. I could buy it from him, and if I valued it more, that is what we would expect to happen. In the case of American slavery, the master owned the right to the slave's wholehearted labor, but the master couldn't really protect that right from the slave's "theft" of slacking off, so often masters would pay the slaves to work hard. This was particularly true for skilled jobs (for picking cotton, the whip worked as well as money and was cheaper), so we'd predict that as the economy developed, slavery would die out because slaves would eventually be able to buy their freedom. This wasn't really a change in wealth, because the master gets paid, but from the outside it looks like a change in wealth, because the slaves now are free.

I've been thinking about theft and value maximization. The conventional economic story is that theft should be punished because otherwise inefficient transfers will take place and, just as important, people will spend a lot of time stealing and defending from theft that could be used productively. But I think an equally important motivation is displeasure at crime occurring-- our sense of justice. Even if there is no deterrence value, we like seeing the criminal punished. Thus, we hanged Nazi war criminals in 1945 even though there was really no deterrence value.