A Contractarian Approach to Law and Justice: Live and Let Live [1 ed.] 0367463016, 9780367463014

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A Contractarian Approach to Law and Justice

This book presents a distinctive version of a contractarian approach to law and justice. The work argues that law and justice are social norms that arise from a process of social evolution, and are binding only if and to the extent that they are mutually beneficial. It explicitly rejects accounts of law and justice that are based on morality, on the basis that morality itself is only legitimately founded on mutual advantage. But it also rejects most existing versions of contractarian­ ism, which are based on ideas of hypothetical agreements by rational contrac­ tors, in favour of an approach that is based on actually existing social norms, but advocates critically examining these norms and discarding those that are not truly mutually beneficial. The first half of the book develops the approach, while the second half explores some of its implications for law. It argues for a left-libertarian approach to property, an approach largely based on the common law of tort, contract and criminal law, and a rejection of most statutory law, which is based not on mutual advantage but rather on benefiting some at the expense of others. How­ ever, it ultimately recognises that there are those who want a more extensive state than this approach allows, and advocates a strong form of federalism to allow this, provided robust exit rights are provided. The book combines political philosophy, economics and law into an approach that is broadly libertarian but distinctive in many respects. It will be of interest to scholars in all three of those disciplines. William E. O’Brian Jr. is Associate Professor of Law, University of Warwick, UK.

A Contractarian Approach to Law and Justice Live and Let Live William E. O’Brian Jr.

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 William E. O’Brian Jr. The right of William E. O’Brian Jr. to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-46301-4 (hbk) ISBN: 978-1-003-02802-4 (ebk) Typeset in Galliard by Swales & Willis, Exeter, Devon, UK

To my parents, Anna and Eric O’Brian, for their steadfast love and support.

Contents

Acknowledgements

viii

Introduction

1

1 Antecedents

10

2 Moral irrealism

27

3 A contractarian approach

50

4 The Sovereignty Principle

75

5 Sovereignty and freedom

94

6 The Principle of Cooperation

110

7 Private property

130

8 Private law

151

9 Democracy and statutory law

170

10 Federalism on Steroids

194

11 Conclusion

216

Bibliography Index

219

241

Acknowledgements

Portions of this book are based on previously published works, as follows: 1. Equality in Law and Philosophy (2010), Inquiry 53: 257–287 2. Distributive Justice and the Sovereignty Principle (2011), Oxford Journal of Legal Studies 31: 1–30 3. Sovereignty, Political Obligation and Fairness, in Claire Finkelstein and Michael Skerker, eds. Sovereignty and the New Executive Authority (Oxford University Press 2018). The author gratefully acknowledges the publishers of these articles for permis­ sion to use this material in this book. Various chapters of this book have been presented at seminars of the Univer­ sity of Warwick Centre for Law, Ethics and Public Affairs. The author gratefully acknowledges the comments, queries and corrections made by the participants at these seminars. Similarly, several chapters have been the subject of student seminars on the Normative Analysis master’s module at Warwick, and I am grateful for comments and questions from students at these seminars. Finally, I have received comments on individual chapters from Karl Widerquist, Hillel Steiner, Victor Tadros, Matthew Clayton, Roger Leng, Julio Faundez, Octavio Ferraz, Dan Priel, Andy Mason, Ed Page, Fabienne Peter, Dan Joyner, Claire Finkelstein and various anonymous peer reviewers for several journals in addition to those listed above. I have benefited from all of these comments. Any remain­ ing errors are my sole responsibility.

Introduction

This book argues that we should discard all existing theories of law and justice in favour of an approach which is explicitly contractarian. By the word contrac­ tarian, I mean to suggest that law and justice are founded solely upon a mutually beneficial agreement among the members of society, and have no other foundation or justification. There is of course a long tradition of social contract theory that includes such prominent names as Thomas Hobbes, John Locke, Jean-Jacques Rous­ seau and more recently John Rawls. The theory espoused here differs mark­ edly from all of these, although it draws on all of them to varying degrees. The more important forerunners of what I am arguing here are Epicurus, David Hume, Friedrich von Hayek and the recent contractarian theorists James Buchanan, David Gauthier and Robert Sugden. But my arguments will mirror none of them exactly: my hope is that I have adapted what is true in each while avoiding what is false, into an overall theory that is both rich and plausible. It is important from the start to make clear that I am rejecting wholesale what are probably the predominant approaches in moral and political philosophy at the moment: moral realism and reflective equilibrium. The first of these I take to mean the belief that there is a mind-independent morality1 that binds humans whether or not they accept its requirements. I will not mince words here: I think moral realism is not only a false view but a downright silly view. Morality is and could only possibly be a human invention designed to make our lives go better. We invented it, and we can change it, but should do so very carefully. I will not be deploying novel arguments against moral realism here: I think it has already been thoroughly refuted in the existing literature, by writers such as Friedrich

1 My interest in this book is in justice, which I understand to be the part of morality that deals with enforceable obligations between persons. But much of the literature deals with morality generally, and since justice is part of morality for the most part I will use the terms interchangeably. Where it matters I will distinguish them.

2

Introduction

Nietzsche,2 John Mackie,3 Richard Joyce,4 Joshua Greene5 and Sharon Street.6 I will summarise the main arguments below, but that discussion is not intended to plough new ground, but only to point out why all of the literature on law and justice that is premised on moral realism is simply from my perspective a non-starter. I also completely reject the method of reflective equilibrium. The idea behind this method, popularised by John Rawls and discussed most thoroughly by Norman Daniels,7 is that we arrive at the truth on matters of morality and just­ ice by starting from our “intuitions” or considered judgements on such matters, trying to construct a morally plausible theory that explains and justifies at least most of those intuitions, modifying either the theory or the judgements when they don’t match, and eventually arriving at a theory that fits most or all of our judgements and is therefore rendered true or at least plausible. This method is based on one model of how we arrive at true scientific theories by an adjustment process between theory and observation. But I think it is completely inappropri­ ate for arriving at a workable theory of justice, for three independent reasons. First, unlike the case of science, which is about a world that really does exist independently of us, there is no mind-independent reality about morality and justice for the method to get at. Second, there is no reason to believe that we have any faculty of intuition into moral truth that is analogous to perception. And finally, we have no good reason to trust our moral intuitions, any more than many of our other intuitions. What, then, do I believe about morality and justice? Stated simply, they arise as a result of a process that combines biological and cultural evolution. We come equipped with a genetic tendency to adopt and observe the moral rules of our society, a tendency that is in constant competition with a tendency we also have programmed into our genes to act in our own self-interest and that of our closest relatives. We also have a genetic tendency to sympathise at least to some extent with our fellow human beings, and even with some animals. A variety of social mechanisms reinforce both tendencies to varying degrees. We are all thus a mixture of saint and sinner (assuming for the moment what I will later deny: that altruism is good and self-interest bad). Many readers will instantly object that the preceding paragraph at best describes what we in fact do, and has no bearing on what we should do. The first suggestion is true, but not the second. If one rejects, as I do, the existence of a duty independent of our interests to serve some external end or transcend­ ent morality, we are left with asking whether, and if so how, we can improve on

Most of his works, but see especially Beyond Good and Evil and On the Genealogy of Morals.

Mackie 1990.

Joyce 2002, 2007.

See his PhD dissertation, Greene 2002. His book Moral Tribes (Greene 2014) repeats many of

these arguments, but the arguments against moral realism are not as explicit. For a good sum­ mary of the argument, see Krellenstein 2017. 6 Many papers. My personal favourites are Street 2008a, 2017. 7 See Daniels 1997. 2 3 4 5

Introduction

3

the morality that natural and cultural evolution have endowed us with. What would such an improvement consist in, if it is not movement towards a “true” morality? The answer is: one that better achieves our preferences and interests (which I should stress are likely to include both self-regarding and other-regarding interests and preferences). We should strive to achieve a morality that is in our mutual inter­ est, broadly understood. There is simply nothing else out there to aim at. I should make clear at this point that my argument in no way depends on a view of man, usually labelled as homo economicus, as someone who is a rational maximiser of his own self-interest. Homo economicus is a myth, and does not correspond to anyone that I know. People I know care about a great many things apart from their own self-interest, and care about those things for their own sake. Nor do I believe people are particularly rational—I conceive of humans as primarily emotional with at most a rational overlay that occasionally allows them to override their emotions in the interest, for the most part, of better satisfying other emotions.8 I also believe, with Hume, that reason is “the slave of the passions” and can only tell us how better to achieve what we want for emotional reasons. Without emotion we would be essentially paralysed.9 In particular, it is abundantly clear that morality as it is actually practised by human beings is almost entirely emotional, with reason playing almost no role.10 But this raises the nub of the difficulty: the use of the term “our” suggests that our interests and preferences are the same, when they in fact differ widely. How, then, do we reconcile them in a single theory of justice? That is, of course, the $64,000 question, to which the brief answer is: by agreement. And we should not necessarily think we will all agree on the same theory of justice, in which case we need a way to resolve differences between different theories. The more detailed answer is, of course, the rest of the book. But I will give a hint here of the general approach that the remainder of this book will take, which alert readers may have anticipated from the title.11 Historically there have been three main approaches to dealing with conflicts of values, interests and pref­ erences. The first is that we fight, with the winners imposing their preferences on the losers. This has been the predominant approach in history, and the results far from good.12 The second is to vote, with the majority imposing its view on the minority. This approach is better than the first, but far from ideal, especially if you expect to be on the losing side regularly. The third approach is the approach I call Live and Let Live, and it says essentially: you do your thing and I will do mine; and let’s agree on a reasonable boundary between your rights and mine that lets us both get what we want as much as possible.

8 9 10 11

See, e.g., Haidt 2001. See Damasio 1995. See Kagan 1994, Nichols 2004, Prinz 2011, Haidt 2012. For what seems to me a very similar approach, by one of the earliest advocates of moral antirealism, see Mackie 1984. 12 Although see Ian Morris 2015 for a dissenting view.

4

Introduction

The last sentence brings to mind Fritz Perls’ Gestalt Prayer, which is worth quoting here in full as embodying the core of my argument: You do your thing and I do mine I am not here to live up to your expectations, nor you to mine You are you and I am I And if by chance we find each other, it’s beautiful If not, it can’t be helped. I fully subscribe to this wisdom, although I would substitute the word “choice” for the word “chance.” From discussions with colleagues and others, however, I know that many object to this slogan as embodying an excessive degree of “atomism.”13 I have several responses. First, the quotation expressly says it’s beautiful if we find each other and work together; it just denies that together­ ness founded on one of us imposing his views on the other is good. Second, people differ in the extent to which they want to engage in communal, solidar­ istic action with their fellows. Some of us want to be atomistic in large degree, and there is no reason why we shouldn’t be able to be atomists if that is what we want. I say: let communitarians be communitarians, but leave the rest of us out! I believe that the arguments in this book lead naturally to a view that I think is most accurately labelled as Classical Liberalism, but some might prefer the term “Libertarian Light.” It is libertarian in its basic values, but I reject what is sometimes called Natural Rights Libertarianism, which derives its theory from first principles such as self-ownership. I fully concur with Jeremy Bentham that natural rights are “nonsense upon stilts,”14 and firmly reject all arguments appealing to natural rights.15 I rather lean in a libertarian direction because I am persuaded by the arguments of scholars in the areas of law and economics and public choice that markets co-ordinate individual action by and large in satisfac­ tory ways, and that in most cases government solutions to problems that are sometimes described as market failures do more harm than good. Most cases, but not all. In Chapters 9 and 10 I will explore when the exceptions apply, but my arguments will be empirical, largely law- and economics-type arguments, not conceptual arguments based on natural rights.

13 See Taylor 2002.

14 Bentham 2014.

15 This includes Robert Nozick, whose Anarchy, State and Utopia (1974) begins with an

espousal of natural rights. I love most of what Nozick says in his book, but concur with the verdict of Thomas Nagel that there are no foundations for the natural rights Nozick espouses. See Nagel 1975. I am not troubled by this, since I reject foundationalism both in morality and elsewhere in philosophy. In my view, the conclusions of Nozick’s book are mostly sound, but as a sensible contractual approach to justice rather than one based on natural rights. For a similar verdict, see Irwin 2015.

Introduction

5

However, as many have noted, markets may for the most part be efficient at allocating resources, but they can give rise to widely differing results depending on the initial assignments of rights that are traded. On this issue I endorse a theory that is generally called “Left Libertarian,” although I prefer to use the word Georgist, since it was most systematically first presented by Henry George.16 This approach argues that rights should be distributed in such a way as to give people roughly equal rights to land and natural resources and the products thereof, while allowing individuals to retain the fruits of their own labour. Most left libertarians arrive at their position by a natural rights route, consisting of some combination of acceptance of a principle of self-ownership with some version of egalitarianism. I reject natural rights, and also reject all forms of egalitarianism: to me, belief that people are or should be equal is a superstition even worse than most religions.17 I rather argue that a left liber­ tarian division of rights is the most easily justified division from a contractarian perspective, because it tends to reward people in proportion to their contribu­ tions, which is the approach to distribution that best fits the idea of a mutually beneficial contract. The basic idea is that the fundamental libertarian principles of justice, which are largely those of the common law of property, tort and contract, supple­ mented with a very limited criminal law, are mutually beneficial and should be embraced by all (with the amendment based on equal rights to natural resources noted above), while more extensive law and government are not justified by mutual benefit, but rather serve to benefit some at the expense of others. This is largely based on the lessons of law and economics. I will discuss the main argu­ ments for more extensive states, especially those based on the idea of public goods, but will conclude that very few government activities going beyond the basic common law principles meet the requirements for a public good that is truly beneficial to all. Finally, I should briefly explain what I mean by a social contract. David Hume, the thinker to whom I am most indebted, was famously highly critical of social contract theory, on several grounds. First, it is fictional, since there never was an original contract to which everyone signed up, and even if there were, it could not bind anyone other than the original signers. Second, because the bindingness of contracts itself needs to be justified, and it is plainly circular to justify contractual obligation by contract. And third, since most people have no genuine choice whether to live in their state of birth, to impute to them a contract to obey the laws because they choose to stay makes no sense.18 These arguments are decisive against any argument that we are contractually obligated to pay the laws of existing states. To make law truly binding, we will have to

16 George 2006. For modern approaches, see Steiner 1994 and Otsuka 2005. For my own approach, see O’Brian 2011. 17 See O’Brian 2010. 18 See Hume 1985a.

6

Introduction

create specific contracts for people to agree to explicitly, and provide them with a genuine ability to opt out if they choose not to agree.19 Nonetheless, I concur with David Gauthier that Hume is properly regarded as a contractarian.20 The account Hume gives is essentially conventional: the rules of morality and justice are social conventions that are obeyed for the most part because doing so is mutually beneficial. The analogy that Hume draws is to lan­ guage, an analogy that is apt for several reasons.21 It seems clear that a large part of the human capacity for language, including basic grammar, is innate, an argument famously associated with Noam Chomsky and powerfully defended recently by Steven Pinker.22 This does not mean that anyone is pre-wired with a particular language: a baby born to English-speaking parents but raised by Jap­ anese-speaking parents will of course speak Japanese. Similarly, it appears that the building blocks of morality are innate, but the particular morality a child internalises will be largely determined by his culture.23 This cultural morality evolves over time and largely serves the function of enabling its followers to engage in peaceful, cooperative and mutually beneficial interaction.24 But of course there are social moralities that are pathological and actually inhibit such interaction.25 I have great respect for the process of evolution, and the outputs of unplanned, “invisible hand” processes that are “the product of human action but not of human design,” to use the terminology of the great Nobel Laureate Friedrich von Hayek, whose work bears witness to the fact that such processes almost always work better than the results of deliberate human design.26 We should be very reluctant to tinker with this process based on the perceived lack of fit between its results and the theoretical arguments of some theorist or another. But perhaps not as reluctant as Hayek himself is. Moreover, a given society’s morality may be good for most of its members, but perhaps less than ideal for a minority. We should therefore allow, and even encourage, what Mill called “experiments in living” that might give rise to better moralities, at least as long as the experiments are only done on willing participants.27 In short, most of our existing morality is conventional, and not to be dis­ missed on that ground, but also not to be worshipped uncritically. To be really comfortable that our morality serves its purposes as well as possible, we should

19 20 21 22 23 24 25

For a suggestion along these lines, see Beran 1987.

See Gauthier 1979.

See the quotations from Hume’s Enquiry Concerning the Principles of Morals in Chapter 1.

See Pinker 1995.

See, e.g., Haidt 2012.

See Wong 2009.

See Edgerton 1992. For a famous example, see Turnbull 1987. For a recent account of how

violent and oppressive Ancient Rome was from a modern perspective, see Toner 2019. 26 See especially Hayek 2012; see also Hayek 2006. The original expression is from Adam Ferguson. 27 Mill 1947.

Introduction

7

make it more explicit, both because doing so is likely to increase compliance and also because it will make it easier to spot defects and make improvements. And we should also recognise that different moralities will be best for different people. A major virtue of the type of classical liberalism I argue for here is that it allows for those who prefer different arrangements to pursue their different modes of life. A free society allows, and in some ways encourages, people who believe in socialism, for example, to form socialist communities and thereby real­ ise the values they prefer, while socialism requires the outlawing of “capitalist acts between consenting adults.”28 The fact that a free society permits and, on at least my version, enables people who disagree to live as they prefer29 is a major argument for it from a standpoint of justice as mutual advantage. I believe my arguments will tend to show that a justified social morality will have fewer prohibitions than at present, be stated more explicitly and be subject to a much greater right to opt out in favour of different arrangements. It will be more suited to diverse societies not united by religion and increasingly com­ posed of people from different cultures. It will to a much greater degree recog­ nise that people can be different without being either crazy or evil; toleration will be its core virtue. But it will also require those who want to change the world to do the work needed themselves, rather than force others who do not share their values to promote their preferred social arrangements. It will implore people, with Gandhi, to “be the change that you want to see in the world,” rather than use government to force others to be the change. I think the position I argue for is the view of justice to which most of us should agree. But I realise there will be some who will not agree. Some will be religious persons who value ascetic or other ideals that are difficult or impossible to realise in a secular and pluralistic society. Others are strong socialists or com­ munitarians who place a much higher value on solidarity than I do and want a more equal society than I could ever live with. I think those people need to be accommodated, not just ignored or marginalised. Just telling such people that they can join clubs or societies to engage in such activities may not be enough. Such people may need to form states or similar institutions to better achieve their ends, especially by excluding free riders from the benefits that social action can generate, at least in the minds of their partisans. My theory tries to accommodate this by allowing the formation of small societies with the power to exclude free riders from such socially provided goods. Their ability to do this needs to be balanced against the danger that such societies will impose their values on those who do not share them. This is best achieved by keeping them small and ensuring robust rights of exit for those who do not share the values of the society in question. I thus advocate a strong form of federalism,

28 Nozick 1974, p. 163. 29 See Brennan 2014.

8

Introduction

which I call “Federalism on Steroids,” in which such societies can exist, with strongly protected rights of exit so they cannot oppress others. At the same time, there are limits I acknowledge to the philosophy of Live and Let Live. On some issues we simply cannot agree to disagree; we have to arrive at a common solution. The most cogent example of this in the world today is climate change. There is only one atmosphere: we cannot agree to let you have your atmosphere and me mine. On those issues where we must have a single answer, I think utilitarianism is the only workable method of getting to an answer we can all live with.30 I think this would lead us, on the issue of cli­ mate change, to a moderate position based on economic analysis and the weigh­ ing of costs and benefits, and therefore to the solution favoured by most economists, a carbon tax, but I claim no special expertise in climate change.31 But I believe there are relatively few such issues: on most matters, we can and should agree to disagree rather than force everyone into one-size-fits-all state­ wide (or worse yet worldwide) solutions. Finally, an approach grounded in agreement must recognise that our current arrangements, however flawed, are themselves the product of an agreement, at least an implied one. Since morality can only be based on agreement, a social morality that urges a new agreement must respect to some extent rights that arise from pre­ vious agreements. No one who expects his new agreement to be respected should treat old agreements as worthless scraps of paper. At the same time, the fact that we have made a bad deal should not bind us to stay in it forever. We must achieve a balance, and doing so poses perhaps the most difficult problems in contractarian ethics. In general I favour making changes only prospectively, and respecting the previous contract as a baseline, where this can be done without locking us in too much to arrangements we no longer find mutually beneficial. To take one example, while I favour radically overhauling the welfare state, it would be insane and unworkable to do so overnight; too many people have relied on things as they are and could not reasonably be expected to change quickly. One of the benefits of seeing morality as a social invention is the ability to see the new arrangements as less than sacrosanct. I think, for example, the British were right to compensate slaveholders when they abolished slavery, and the US was wrong not to do so (although the refusal was understandable in light of the fact that it took a civil war to achieve abolition). Moralists find this difficult: since in their view slavery was always wrong, it cannot be right to com­ pensate wrongdoers. But since the truth is slavery was not always wrong, but became wrong when we decided to end it, the problem is much easier for a contractarian. The same truth renders the suggestion that we should pay reparations for slavery nonsensical: since slavery only became wrong when we decided to end it, there can be no question of owing the descendants of former slaves anything.

30 For a good argument to this effect, see Greene 2014.

31 The literature is vast; two of my favourites are Lomborg 2010, Nordhaus 2015.

Introduction

9

Thus I believe that recognition of the conventional nature of morality, and its basis in mutual advantage, has significant implications for current issues. I hope to explore many of them in this book, but they remain the task of a lifetime, or indeed many lifetimes. But I could do no better to sum up my conclusion than to quote the Tao Te Ching,32 written around 2,500 years ago: If you want to be a great leader, you must learn to follow the Tao. Stop trying to control. Let go of fixed plans and concepts, and the world will govern itself. The more prohibitions you have, the less virtuous people will be. The more weapons you have, the less secure people will be. The more subsidies you have, the less self-reliant people will be. Therefore the Master says: I let go of the law, and people become honest. I let go of economics, and people become prosperous. I let go of religion, and people become serene. I let go of all desire for the common good, and the good becomes common as grass.

32 Lao Tzu 1988, Chapter 57.

1

Antecedents

Epicurus and other Greeks The earliest appearance of a contractarian approach to justice that I will consider is in Plato’s Republic,1 where Plato’s brother, Glaucon, summarises it as follows: They say that to do wrong is naturally good, to be wronged is bad, but the suffering of injury so far exceeds in badness the good of inflicting it that when men have done wrong to each other and suffered it, and have had a taste of both, those who are unable to avoid the latter and practice the former decide that it is profitable to come to an agreement with each other neither to inflict injury nor to suffer it. As a result they begin to make laws and covenants, and the law’s command they call lawful and just. This, they say, is the origin and essence of justice; it stands between the best and the worst, the best being to do wrong without paying the penalty and the worst to be wronged without the power of revenge. Most of the Republic consists of Plato’s attempt at demolishing this theory and instead constructing his own theory (using as usual Socrates as his mouthpiece). That attempt fails miserably, and Plato’s own theory is quasi-fascist and will appeal to very few modern readers.2 The main interesting argument against Glaucon’s theory involves the story of the Ring of Gyges, a ring that made its wearer invisible and thus able to get away with murder and other crimes. The argument is that someone who pos­ sessed this ring would have no reason to be just since he need not fear retribu­ tion. Of course, given that there is no such ring we might be willing to concede this objection, but there are other forms of impunity that are only too real, so we cannot dismiss it so lightly. The more troubling variant of this objection is provided by a work roughly contemporaneous with Plato, Thucydides’ History of the Peloponnesian War. In

1 I am referring to the translation by G.M.A. Grube (Plato 1974). 2 See Popper 1962.

Antecedents

11

Chapter XVII of this work he tells the story of an encounter between the Athenians and the Melians, inhabitants of an island that the Athenians wished to use in their war with Sparta. The Athenians attempt to convince the Melians to surrender on somewhat favourable terms by arguing that they face hopeless odds, while the Melians object that they are being treated unjustly. Thucydides presents a dialogue, probably fictional, between the two sides that is a classic example of realpolitik. Here are excerpts:3 ATHENIANS:

You know as well as we do that right, as the world goes, is only in question between equals in power; while the strong do what they can and the weak suffer what they must. MELIANS: We speak as we are obliged, since you enjoin us to let right alone and talk only of interest—that you should not destroy what is our common pro­ tection, the privilege of being allowed in danger to invoke what is fair and right, and even to profit by arguments not strictly valid if they can be got to pass current. And you are as much interested in this as any, as your fall would be a signal for the heaviest vengeance, and an example for the world to medi­ tate upon. ATHENIANS: Of the gods we believe, and of men we know, that by a necessary law of their nature they rule wherever they can. And it is not as if we were the first to make this law, or to act upon it when made; we found it existing before us, and shall leave it to exist forever after us; all we do is make use of it, knowing that you and everybody else, having the same power as we have, would do the same as we do. [Responding to the suggestion that the Spartans will aid the Melians, the Athenians say of the Spartans]: Of all the men we know they are the most conspicuous in considering what is agreeable honourable, and what is expedient just. The Melians refused to bargain, and when the Athenians attacked they ultim­ ately had to surrender, whereupon Thucydides records that the Athenians “put to death all the grown men they took, and sold the women and children for slaves.” We will consider the merits of this issue in Chapter 4, but it captures nicely what turns out to be the main difficulty that still confronts a theory of justice based on mutual interest: how does it apply between the strong and the weak? The greatest ancient philosopher who actually espoused the theory of justice as based on agreement for mutual advantage was Epicurus. Epicurus appears to have been a wonderful philosopher who anticipated much of what we now take to be the modern view in science: for example, he explicitly stated that the only things that exist are atoms and the void (i.e. space), and endorsed an essentially evolutionary explanation of the phenomena that we observe as resulting from random variation along with natural selection that predates Darwin by over two

3 Thucydides 1910, pp. 394–397.

12

Antecedents

thousand years. Although he did not deny the existence of gods, he concluded that they had nothing to do with humanity and did not create the world, which instead arose by blind chance. This view makes the gods superfluous, and the early Christian fathers saw the atheistic implications of this view and largely sup­ pressed his writings. This is highly unfortunate: he was almost certainly a much better philosopher than Plato, as well as an interesting human being, but we have little now to go on apart from the entry on him in Diogenes Laertius’ Lives of the Eminent Philosophers, which includes a few of his surviving works. Much of what we now know of Epicurean philosophy is based on his Roman disciple Lucretius, whose epic poem De Rerum Natura, although also sup­ pressed, was rediscovered in the Renaissance in time to help lead to the revival of what became modern science and in particular the rejection of Aristotle’s views about physics and causation.4 That poem presents an evolutionary account of the world, but more importantly of justice, the issue with which we are con­ cerned here. Indeed, Matt Ridley’s recent, highly recommended book, The Evo­ lution of Everything,5 which as its title suggests argues that essentially everything, including justice and morality, is the result of evolution, has a quote from this poem at the beginning of every chapter. Fortunately a surviving work of Epicurus, his Principal Doctrines,6 includes a summary of his theory of justice, brief and cogent enough to quote in full: 31. Natural justice is a covenant for mutual benefit, to not harm one another or be harmed. 32. With regard to those animals that do not have the power of making a covenant to not harm one another or be harmed, there is neither justice nor injustice; similarly for those peoples who have neither the power nor the desire of making a covenant to not harm one another or be harmed. 33. Justice does not exist in itself; instead, it is always a compact to not harm one another or be harmed, which is agreed upon by those who gather together at some time and place. 34. Injustice is not bad in itself, but only because of the fear caused by a suspicion that you will not avoid those who are appointed to punish wrongdoing. 35. It is impossible to be confident that you will escape detection when secretly doing something contrary to an agreement to not harm one another or be harmed, even if currently you do so countless times; for until your death you will be uncertain that you have escaped detection. 36. In general, justice is the same for all: what is mutually advantageous among compan­ ions. But with respect to the particulars of a place or other causes, it does not follow that the same thing is just for all. (Continued )

4 For the story of this discovery see Greenblatt 2012.

5 Ridley 2016.

6 Epicurus 2008.

Antecedents

13

(Cont.) 37. Among things that are thought to be just, that which has been witnessed to bring mutual advantage among companions has the nature of justice, whether or not it is the same for everyone. But if someone legislates something whose results are not in accord with what brings mutual advantage among companions, then it does not have the nature of justice. And if what brings advantage according to justice changes, but for some time fits our basic grasp of justice, then for that time it is just, at least to the person who is not confused by empty prattle but instead looks to the facts. 38. When circumstances have not changed and things that were thought to be just are shown to not be in accord with our basic grasp of justice, then those things were not just. But when circumstances do change and things that were just are no longer useful, then those things were just while they brought mutual advantage among companions sharing the same community; but when later they did not bring advantage, then they were not just. 39. The person who has put together the best means for confidence about external threats is one who has become familiar with what is possible and at least not unfamiliar with what is not possible, but who has not mixed with things where even this could not be managed and who has driven away anything that is not advantageous.

There is no discussion in this brief passage of the problem of justice between non-equals, although Epicurus suggests that others not be treated as enemies. But there is no real argument as to why: perhaps it is the argument the Melians pressed unsuccessfully—that even if it was in the Athenians’ short-term interest to conquer the Melians, the rules of right and justice were in their long-term interest and should lead them to desist. In any event, Epicurus advocated a life devoted to simple pleasures, avoidance of pain, pursuit of friendship and avoidance of politics and public life generally; someone who followed his advice was unlikely to become a conqueror.7 He was especially critical of those who sought power, wealth or fame, all of which he believed to be “vain and empty.”8 Lucretius adds to this the argument that even the strong need justice to protect the weak because they have wives and children:9 Then also neighbours began to join friendship amongst themselves in their eagerness to do no hurt and suffer no violence, and asked protection for their children and womankind, signifying by voice and gesture with stam­ mering tongue that it was right for all to pity the weak.

7 One US president, Thomas Jefferson, was a self-described Epicurean, and of course did not follow the advice to avoid public life. 8 Armstrong 1997. 9 Lucretius 1924, Book V, lines 1017–1023.

14

Antecedents

He then notes that although originally such agreements were kept by mutual consent, as society grew more complex and greed and lust for power became more prominent, men agreed to create laws and punishments to better secure their own safety from unjust acts by others. The rest of this book could be viewed as a gloss on the skeletal theory of justice set forth above by Epicurus. Although philosophy has moved on in the ensuing two-thousand-plus years, the above nine paragraphs in the Principal Doctrines are hard to beat as a one-page summary of what justice is, and most of what has taken place in thinking about justice since Epi­ curus wrote these words consists of wrong turns. In this book, I seek to return thinking about justice to the sound basis he provided.

Hobbes Thomas Hobbes’s theory is too well known to warrant extended description.10 My approach is recognisably Hobbesian, but like most modern analysts I reject Hobbes’s psychological egoism as well as his conclusion that absolute monarchy is the preferred political system. I also reject his contention that life in the state of nature is necessarily “solitary, poor, nasty, brutish and short,” a characterisation that goes against the ethnographic evidence we now possess that primitive people largely dwelt in small anarchical societies for most of man’s existence. Although the evidence suggests that primitive humans waged war fre­ quently against other groups, with violence much more frequent than is the case today, they have always lived in groups and within those groups there was noth­ ing resembling a war of all against all.11 Hobbes is clear that under his theory, justice is the product of an agreement, and in the absence of such an agreement there are no limits: To this war of every man against every man, this also is consequent: that nothing can be unjust. The notions of right or wrong, justice or injustice, have there no place. Where there is no common power there is no law, where no law, no injustice … it follows that in such a condition, every man has a right to everything, even to one another’s body.12 Given the obvious unacceptability of this situation, Hobbes concludes that reason requires men to seek peace: That a man be willing, when others are so too, as far forth as for peace and defence of himself he shall think it necessary, to lay down this right to all things,

10 The best overall summary of Hobbes, by a philosopher generally sympathetic to his approach, is Kavka 1986. For a good critique of Hobbes, see Kraus 1994. 11 See Keeley 1997, Gat 2008 and Diamond 2013. 12 Hobbes 1958, pp. 108–110.

Antecedents

15

and be contented with so much liberty against other men as he would allow other men against himself … The mutual transferring of right is that which men call contract.13 Hobbes is clear that in the state of nature even contracts that are based on fear of coercion are binding. Although many have questioned this, it is undoubtedly right: otherwise it would be impossible to conclude peace treaties. We will discuss this issue in Chapter 3, and conclude that Hobbes is right in this. Hobbes discusses contracts extensively, and is generally dismissive of the view that men will simply carry out contracts once made. The force of words being, as I have formerly noted, too weak to hold men to the performance of their covenants, there are in man’s nature but two imaginable helps to strengthen it. And those are either a fear of the conse­ quences of breaking their word, or a glory or a pride in appearing not to need to break it.14 Hobbes discounts the latter motive, probably wrongly, as a reputation for hon­ esty and for keeping promises is an invaluable asset not lightly tossed away, at least with people who will be repeatedly interacting or whose actions will be made known to others. But later he recognises that breaking covenants is dangerous: There is no man who can hope, by his own strength or wit to defend himself from destruction without the help of confederates, where every­ one expects the same defence by the confederation that everyone else does; and therefore he which declares he thinks it reason to deceive those that help him can in reason expect no other means of safety than what can be had from his own single power. He, therefore, that breaks his covenant, and consequently declares that he thinks he may with reason do so, cannot be received into any society that unite themselves for peace and defence, but by the error of them that receive him; nor, when he is received, be retained in it without seeing the danger of their error, which errors a man cannot reasonably reckon upon as the means of his security …15 From these beginnings Hobbes deduces a total of nineteen laws of nature, some of which we will follow and others not. He concludes that these laws are bind­ ing, however, when and only when a man has sufficient security that others will

13 Ibid., pp. 110–112. 14 Ibid., p. 118. 15 Ibid., p. 122.

16

Antecedents

observe those laws, since otherwise he would only “make himself a prey to others, and procure his own certain ruin.”16 The only of these laws that should be noted here is the tenth law: that at the entrance into conditions of peace, no man require to reserve to himself any right which he is not content should be reserved to every one of the rest. As it is necessary for all men that seek peace to lay down certain rights of nature—that is to say, not to have liberty to do all they list—so it is necessary for man’s life to retain some, as right to govern their own bodies, enjoy air, water, motion, ways to go from place to place, and all things else without which a man cannot live or not live well.17 Essentially, this is because a person cannot reasonably expect others to agree to his having greater rights than others. Hobbes is important because he recognised that justice must have a contractarian basis, and correctly perceived its rudimentary requirements. His embrace of absolute monarchy, understandable in light of the fact that he was writing at the time of the English Civil War, will not appeal to many today, and I will not waste time showing why, as others have done so quite convincingly. But as a step along the way, his critical influence must be acknowledged.

Hume It is with David Hume that we arrive at a view of justice that is both plausible and modern. Hume’s ideas stand up well even today: there is virtually nothing he says that is inconsistent with what we know today or obviously wrong, although we will see that some things need to be qualified. Hume is clear that morality, and justice as a key component, are largely based on passion, not reason, although reason enables us to see more clearly what will best satisfy our passions: We speak not strictly and philosophically when we talk of the combat of passions and of reason. Reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them … Where a passion is neither founded on false suppositions, nor chooses means insufficient for the end, the understanding can neither justify nor condemn it. It is not contrary to reason to prefer the destruction of the whole world to the scratching of my finger. It is not contrary to reason for me to choose my total ruin, to prevent the least uneasiness of an Indian or person wholly unknown to me. It is as little contrary to reason to prefer

16 Ibid., p. 130. 17 Ibid., pp. 127–128.

Antecedents

17

even my own acknowledged lesser good to my greater, and have a more ardent affection for the former rather than the latter.18 Hume also clearly understood that values are not something that exist in the world, but rather something we ourselves create, and then project onto the world, a view now labelled “projectivism.” The clearest statement of this pos­ ition is in a fairly late essay, “The Sceptic”: If we can depend upon any principle, which we learn from philosophy, this, I think, may be considered as certain and undoubted, that there is nothing, in itself, valuable or despicable, desirable or hateful, beautiful or deformed, but that these attributes arise from the particular constitution and fabric of human sentiment and affection … We may push the same observation fur­ ther, and may conclude that, even when the mind operates alone, and feel­ ing the sentiment of blame or approbation, pronounces one object deformed or odious, another beautiful and amiable, I say that even in this case, those qualities are not really in the objects, but belong entirely to the sentiment of that mind which blames or praises. I grant that it will be more difficult to make this proposition evident, and as it were, palpable, to negli­ gent thinkers …19 On this last idea, we might profitably cite Shakespeare’s Hamlet: Why then tis none to you, for there is nothing either good or bad, but thinking makes it so. To me it is a prison.20 Some will be puzzled by my counting David Hume as a contractarian predeces­ sor, since he was famously critical of social contract theory.21 Hume himself gave a good explanation of his view which is worth quoting at length: It has been asserted by some that justice arises from Human Convention, and proceeds from the voluntary choice, consent or combination of man­ kind. If by convention be here meant a promise, (which is the usual sense of the word), nothing can be more absurd than this position. The observance of promises is itself one of the most considerable parts of justice, and we are not surely bound to keep our word because we have given our word to keep it. But if by convention be meant a sense of common interest; which the sense every man feels in his own breast, which he remarks in his fellows, and which carries him, in concurrence with others, into a general plan or

18 19 20 21

Hume 1978, pp. 415–416.

Hume 1985b.

William Shakespeare, Hamlet, Act II, Scene 2.

See especially Hume 1985a.

18

Antecedents system of actions, which tends to public utility; it must be owned that in this sense, justice arises from human conventions … Thus two men pull the oars of a boat by common convention, for common interest, without any promise or contract; thus gold and silver are made the measures of exchange; thus speech and words and language are fixed by human convention and agreement. Whatever is advantageous to two or more persons, if all perform their part; but what loses all advantage if only one per­ form, can arise from no other principle. The word natural is commonly taken in so many senses and is of so loose a signification, that it seems vain to dispute whether justice be nat­ ural or not. If self-love, if benevolence, be natural to man; if reason and forethought be also natural; then may the same epithet be applied to justice, order, fidelity, property, society … In so sagacious an animal, what necessarily arises from the exertion of his intellectual faculties may justly be esteemed natural.22

Hume was clear that such a convention had to be in the mutual interest of everyone, although he was scathing in his rejection of psychological egoism and believed that a degree of benevolence was natural to the human condition and indeed essential to the smooth functioning of society. Nonetheless: And indeed, to drop all figurative expression, what hopes can we ever have of engaging mankind to a practice which we confess full of austerity and rigour? Or what theory of morals can ever serve any useful purpose, unless it can show, by a particular detail, that all the duties which it recommends are also the true interest of each individual?23 Hume believed that justice was necessary because humanity was poised between two extremes: those of having so much wealth that it was unnecessary because everyone could have as much as he wanted, and extreme scarcity such that a war of all against all was the only possibility. Likewise, because humans, while not totally selfish as Hobbes supposed, do not care for others to the same degree as themselves, justice was needed to preserve the peace and promote the general welfare. To sum up: Thus, the rules of equity and justice depend entirely on the particular state and condition in which men are placed, and owe their origin and existence to that utility which results to the public from their strict and regular obser­ vance … Produce extreme abundance or extreme necessity; implant in the human breast perfect moderation and humanity, or perfect rapaciousness

22 Hume 1975, pp. 306–307. 23 Ibid., p. 219.

Antecedents

19

and malice; by rendering justice totally useless, you thereby destroy its essence, and suspend its obligation upon mankind. The common situation of society is a medium amidst all these extremes. We are naturally partial to ourselves, and to our friends; but are capable of learning the advantage resulting from a more equitable conduct. Few enjoyments are given us from the open and liberal hand of nature; but by art, labour and industry we can extract them in great abundance. Hence the ideas of property become necessary in civil soci­ ety. Hence justice derives its usefulness to the public. And hence alone arises its merit and moral obligation.24 Hume recognises that this argument only justifies obligations to those who have power to resist being subjugated, although he expresses hope that feelings of sympathy will mitigate this: Were there a species of creatures intermingled with men, which, though rational, were possessed of such inferior strength, both of body and of mind, that they were incapable of all resistance, and could never, upon the highest provocation, make us feel the effect of their resentment; the neces­ sary consequence, I think, is that we should be bound by the laws of humanity to give gentle usage to these creatures, but should not, properly speaking, lie under any restraint of justice with regard to them, nor could they possess any right or property, exclusive of such arbitrary lords, the restraints of justice and property, being totally useless, would never have place in so unequal a confederacy.25 Hume concluded that a natural law in his sense of the term (i.e. arising by con­ vention) would be based on three fundamental principles: We have now run over the three fundamental laws of nature, that of the sta­ bility of possession, of the transference by consent, and of the performance of promises.’ Tis on the strict observance of these three laws, that the peace and security of human society entirely depend; nor is there any possibility of establishing a good correspondence among men, where these are neg­ lected. Society is absolutely necessary for the well-being of men; and these are as necessary to the support of society.26 Finally, Hume saw that the scope of justice gradually expanded over time to embrace larger groups:

24 Ibid., p. 188. 25 Ibid., p. 190. 26 Hume 1978, p. 526 (emphasis in original).

20

Antecedents But suppose the conjunction of the sexes be established in nature, a family immediately arises; and particular rules being found requisite for its subsist­ ence, these are immediately embraced; though without comprehending the rest of mankind within their prescriptions. Suppose that several families unite together into one society, which is totally disjoined from all others, the rules which preserve peace and order, enlarge themselves to the utmost extent of that society; but becoming then entirely useless, lose their force when carried one step farther. But again suppose, that several distinct soci­ eties maintain a kind of intercourse for mutual convenience and advantage, the boundaries of justice still grow larger, in proportion to the largeness of men’s views, and the force of their mutual connexions.27

All of this holds up very well against modern understandings of how justice is likely to have evolved historically, although it is clear that humans from earliest times lived in groups larger than families, although probably closely related.28 Once again, most of what I say in the rest of this book could be viewed as Humean in spirit, although of course Hume would not have agreed with many of my conclusions.

Hayek Friedrich A. von Hayek won the Nobel Prize for Economics, primarily for his work on macroeconomics, especially his book Prices and Production. He is better known today as a political theorist. The original idea that bridged these two areas was his contribution to the socialist calculation debate, in which he argued that socialism could never work because a socialist planner could never know what to produce or how much without the inputs provided by the price system, because that system operated to combine knowledge that was dispersed in millions of different minds that could never be known to a single mind.29 Although not especially well received at the time, after the fall of Communism in the late 1980s it was generally conceded that Hayek was right about this. Most of his work in political philosophy proceeds from this insight, along with his espousal of the idea that spontaneous order is key to the works of modern society, and almost always superior to top-down planning. The follow­ ing passage explains the idea well: It would be no exaggeration to say that social theory begins with—and has an object only because of—the discovery that there exist orderly structures which are the product of the action of many men but are not the result of human design. Although there was a time when men believed that even language and

27 Hume 1975, p. 192.

28 For a similar story and its normative implications, see Singer 2011.

29 See especially his seminal article “The Use of Knowledge in Society,” Hayek 1945.

Antecedents

21

morals had been “invented” by some genius of the past, everybody recognises now that they are the outcome of a process of evolution whose results nobody foresaw or designed. But in other fields many people still treat with suspicion the claim that the patterns of interaction of many men can show an order that is of nobody’s deliberate making; in the economic sphere, in particular, critics still pore uncomprehending ridicule on Adam Smith’s expression of the “invis­ ible hand” by which, in the language of his time, he described how man is led to “to promote an end which was no part of his intentions.” If indignant reformers still complain about the chaos of economic affairs, insinuating a complete absence of order, this is partly because they cannot conceive of an order which is not deliberately made, and partly because to them an order means something aiming at concrete purposes which is, as we shall see, what a spontaneous order cannot do.30 Hayek, however, recognised that rule following was essential to the existence of society, as it is vital in order for people to accomplish their purposes that they be able to anticipate how other people will react, at least within certain limits. Rules are essential to this, and Hayek saw clearly that humans are quintessen­ tially rule-following animals: Many of the institutions of society which are indispensable conditions for the successful pursuit of our conscious aims are in fact the result of customs, habits or practices which have been neither invented nor observed with any such purpose in view. We live in a society in which we can successfully orientate ourselves, and in which our actions have a good chance of achiev­ ing their aims, not only because our fellows are governed by known aims or known connections between means and ends, but because they are also confined by rules whose purpose or origin we often do not know and of whose very existence we are often not aware. Man is as much a rulefollowing animal as a purpose-seeking one. And he is successful not because he knows why he ought to observe the rules which he does observe, or is even capable of stating all these rules in words, but because his thinking and acting are governed by rules which have, by a process of selection, been evolved in the society in which he lives, and are thus the product of the experience of generations.31 Hayek saw clearly that these rules arose from a process of cultural, not biological evolution, and were selected because they provided those who adopted them with advantages over others:

30 Hayek 2012, pp. 36–37.

31 Ibid., p. 12 (emphasis in original).

22

Antecedents ”Learning from experience,” among men no less than among animals, is a process not primarily of reasoning but of the observance, spreading, trans­ mission and development of practices which have prevailed because they were successful—often not because they conferred any recognizable benefit on the acting individual but because they increased the chances of survival of the group to which they belonged. The result of this development will not in the first instance be articulated knowledge, but a knowledge which, although it can be described in terms of rules, the individual cannot state in words but is only able to honour in practice. The mind does not so much make rules as consist of rules, a complex of rules that is, which it has not made, but have come to govern the actions of the individuals because actions in accordance with them have proved more successful than those of competing individuals or groups.32

These rules were originally not written or even formulated verbally, but as soci­ eties became larger needed to be formulated more explicitly: That rules in this sense exist and operate without being explicitly known to those who obey them applies also to many of the rules which govern the actions of men and thereby determine a spontaneous social order … At least in primitive human society, no less than in animal societies, the struc­ ture of social life is determined by rules of conduct which manifest them­ selves only by being in fact observed. Only when individual intellects begin to differ to a significant degree will it become necessary to express these rules in a form in which they can be communicated and explicitly taught, deviant behaviour corrected, and differences of opinion about appropriate behaviour decided. Although man never existed without laws that he obeyed, he did, of course, exist for hundreds of thousands of years without laws he “knew” in the sense that he was able to articulate them.33 Because many social norms have purposes we do not understand but have stood the test of time, Hayek recommends that we essentially accept these norms on faith, rather than assess their merits using our own reasoning ability: It is the submission to undesigned rules and conventions whose significance and importance we largely do not understand, this reverence for the traditional, that the rationalistic type of mind finds so uncongenial, though it is indispensable for the working of a free society. It has its foundation in the insight which David Hume stressed and which is of decisive importance for the antirationalist, evolu­ tionary tradition—namely that the “rules of morality are not conclusions of our reason.” Like all other values, our morals are not a product but a presupposition

32 Ibid., p. 18. 33 Ibid., p. 42.

Antecedents

23

of our reason, part of the ends which the instrument of our intellect has been developed to serve. At any one stage of our evolution, the system of values into which we are born supplies the ends which our reason must serve.34 This is especially important where restrictions of freedom are involved. Restrict­ ing freedom for the sake of other ends is almost always a mistake for Hayek, because: The reason for this is very simple, although not generally understood. Since the value of freedom rests on the opportunities it provides for unforeseen and unpredictable actions, we will rarely know what we lose through a particular restriction of freedom. Any such restriction, any coercion other than the enforcement of general rules, will aim at the achievement of some foreseeable particular result, but what is prevented by it will usually not be known. The direct effect of any interference with the market order will be near and clearly visible in most cases, while the more indirect and remote effects will mostly be unknown and will therefore be disregarded. We shall never be aware of all the costs of achieving particular results by such interference.35 This is a powerful defence of complying with social norms whether or not we find them justified. It overlooks, however, the many social norms that have evolved that are dysfunctional and should not be followed. We will discuss this in Chapter 3 with reference to examples such as duelling, female genital mutilation and Chinese foot binding. In addition, some social norms may have been beneficial in previous times but are no longer so, or may be based on what are now known to be clearly false factual assumptions, especially likely to be true of religious norms. At most, these considerations warrant a strong presumption of validity for social norms that have stood the test of time, not an unquestioning obedience. Hayek thought the great virtue of evolved social norms was that they did not require agreement on ultimate ends or goals, and with this he contrasted most other government action, which required agreement on certain ends and a top-down organisation designed to best achieve those ends. Although people long for a kind of tribal unity in which everyone seeks common goals, this ideal, and other forms of social solidarity, are the enemy of the Great Society that is created by evolved norms among people who do not and probably cannot share values or ultimate goals, apart from perhaps in times of war or other emergency. It is often made a reproach to the Great Society and its market order that it lacks an agreed ranking of ends. This, however, is in fact the great merit which makes individual freedom and all its merits possible. The Great Society arose

34 Hayek 2006, p. 63. 35 Hayek 2012, p. 55.

24

Antecedents through the discovery that men can live together in peace and mutually bene­ fiting each other without agreeing on the particular aims which they severally pursue. The discovery that by substituting abstract rules of conduct for obliga­ tory concrete ends made it possible to extend the order of peace beyond the small groups pursuing the same ends, because it enabled each individual to gain from the skill and knowledge of others whom he need not even know and whose aims could be wholly different from his own.36

Because he thought the most important part of the law, the common law, arose from social norms justified by their having evolved, Hayek was highly critical of legal positivism, especially in the form espoused by Hans Kelsen, who believed that all law was created by intentional human conduct. Hayek flatly rejected this: [I]t will be the whole complex of rules which is in fact observed in a given soci­ ety that will determine what particular rule it will be rational to enforce or which ought to be enforced. Though those two sets of rules [i.e. moral and legal rules] may in fact be the same, yet the first set of rules may include some which need not be enforced because they are universally obeyed, while the second set of rules will contain some which would not voluntarily be obeyed but whose observance is important for the same reasons as the observance of the first, so that those who observe the first have good reasons for demanding that the second be also obeyed.37 Although Hayek rejected Kelsen’s positivism, he did not quarrel with the ideas presented in H.L.A. Hart’s The Concept of Law, to the effect that law and mor­ ality do not necessarily coincide. He did not like the term “natural law” which he associated with divine law, although he pointed out passages from Hume, such as those quoted above, for the idea that evolved law was in a sense natural. He summarised his position this way: The evolutionary approach to law (and all other social institutions) which is here defended has thus as little to do with the rationalist theor­ ies of natural law as with legal positivism. It rejects both the interpret­ ation of law as the construct of a supernatural force and its interpretation as the deliberate construct of any human mind. It does not stand in any sense between legal positivism and most natural law theories, but differs from either in a dimension different from that in which they differ from each other.38

36 Ibid., p. 269.

37 Ibid., p. 216 (emphasis in original).

38 Ibid., p. 224.

Antecedents

25

Because he saw the governing norms, both law and other social norms, as the result of an evolutionary process rather than deliberate choices, Hayek rejected the entire concept of “social justice” as a “mirage.” This is perhaps the clearest statement of his position: It has of course to be admitted that the manner in which the benefits and burdens are apportioned by the market mechanism would in many instances have to be regarded as very unjust if it were the result of a deliberate alloca­ tion to particular people. But this is not the case. Those shares are the out­ come of a process the effect of which on particular people was neither intended nor foreseen by anyone when the institutions first appeared—insti­ tutions which were then permitted to continue because it was found that they improve for all or most the prospects of having their needs satisfied. To demand justice from such a process is clearly absurd, and to single out some people in such a society as entitled to a particular share evidently unjust.39 Hayek recognised that luck as well as skill played a major role in determin­ ing who gets what in the market, but believed strongly that this was a necessary feature of the market system, which needs to reward people for doing what in fact benefits others even if they were faultless in choosing some different course. But he believed that in the long run we all benefit from this process, and cannot complain when it sometimes grants people incomes that are not themselves morally justified. He saw clearly that any attempt to make differences in income justifiable on some basis other than the market would destroy the whole system, to the harm of almost everyone. However, this did not lead Hayek to oppose all redistribution: There is no reason why in a free society government should not assure to all protection against severe deprivation in the form of an assured minimum income, or a floor below which nobody needs to descend. To enter into such an insurance against extreme misfortune may well be in the interest of all, or it may be felt to be a clear moral duty of all to assist, within the organized community, those who cannot help them­ selves. So long as such a uniform minimum income is provided outside the market to all who, for any reason, are unable to earn in the market an adequate maintenance, this need not lead to a restriction of freedom, or conflict with the Rule of Law.40

39 Ibid., pp. 228–229. 40 Ibid., p. 249.

26

Antecedents

Hayek summed up his position this way: Coercion can assist free men in the pursuit of their own ends only by enforcement of a framework of universal rules which do not direct them to particular ends, but, by enabling them to create for themselves a domain protected against unpredictable disturbance caused by other men—includ­ ing agents of government—to pursue their own ends. And if the greatest need is security against infringement of such a protected sphere by others, including government, the highest authority needed is one who can merely say “no” to others but has itself no “positive powers.”41 This is in essence the conclusion I will reach, but I will support the right of those who want a government that does more to do so as long as this is only at a local level, allowing those who do not share their values to choose instead to be governed by more limited states. We will begin to demonstrate this in Chap­ ter 3, but first we must discuss in more depth why the main approaches in eth­ ical and political philosophy should be rejected.

41 Ibid., p. 465.

2

Moral irrealism

Why irrealism is true That values1 are purely subjective, and morality simply a matter of convention, is obvious to a great many people; I recognised it when I was sixteen and have never wavered in that belief, although for a long time I did not reveal it because it is far from orthodox in moral philosophy. Indeed, philosophers sometimes refer to it as the Freshman Objection because they commonly hear it from fresh­ man philosophy students. Most of them then go on to refute it, but increasingly many have concluded that the freshmen are essentially right.2 It was not always thus. Value subjectivism was an inherent feature of existen­ tialism, at one time the predominant philosophy on the continent.3 And in Anglo-American philosophy until roughly fifty years ago most philosophers were expressivists. Expressivism, at least in one version, is the view that moral state­ ments are neither true nor false, but rather are merely statements of an attitude. For example, the statement “slavery is wrong” is not an assertion of fact that can be true or false, but rather an expression of an attitude, rather like “Boo slavery.”4 Of course there are more sophisticated versions of expressivism too; the best is probably to say that a statement like “slavery is wrong” expresses acceptance of a norm that prohibits slavery.5 The idea that statements about right and wrong could not be false was partly a consequence of a view labelled “logical positivism” that can be traced back to Hume, to the effect that all meaningful statements were either tautologies (like “bachelors are unmarried men”) or statements of actual or possible sense

1 Throughout I use the term “value” to denote a person’s stably held and affirmed preferences; that is, things that he “desires to desire,” as opposed to addictions or preferences that he would prefer not to have. See generally Frankfurt 1988. See also Gaus 1990. 2 See especially Harman 2000. 3 See Sartre 1965, Irwin 2015. 4 The classic statement of this position is Ayer 2002. 5 Gibbard 1990. More recently Gibbard has revised this position by adopting a “planning” account, according to which saying “slavery is wrong” is essentially planning to not have slaves, oppose others having them, and similar things. See Gibbard 2008.

28

Moral irrealism

experiences. That idea, although never refuted, became unfashionable, but expressivism survived it because moral statements seem to be particularly prob­ lematic from a naturalistic perspective. We can analyse and understand things like trees and chairs and see how they fit into a view of the world as described by the natural sciences, but nothing in reality seems to correspond to the prop­ erty of wrongness or obligation. Despite brave philosophical attempts to solve this problem, I think all such efforts fail. The freshman suspicion that someone who asserts that slavery is wrong is simply claiming objective warrant for what is only his own opinion, even if widely shared, is in fact correct. The problem with expressivism is that, as an analysis of what someone means by the statement “slavery is wrong,” it is obviously incorrect. Although the freshman is right to think that there is no objective truth to the statement “slav­ ery is wrong,” he is wrong to conclude that the person who says it does not intend to assert something about the world. He clearly does intend to say some­ thing; it is just that what he says is false, because there is nothing in the world that could make something right or wrong. The natural suggestion, and what I will ultimately conclude is the correct sug­ gestion, is to say that statements like “slavery is wrong” are not statements about the world, but rather statements about the practices of a particular soci­ ety. Thus someone who says slavery is wrong is essentially saying that slavery is rejected by the morality prevalent in the twenty-first century. On this analysis, a statement like “slavery is wrong” is true today in England, but was false in ancient Greece. Again the analogy to language is helpful. We can say that the ancient Greek word for virtue was arête, and the English word is virtue, but if someone asks “but who was right?” the question is misconceived. Likewise, we should say, slavery was right in ancient Greece but wrong in modern England, and it makes no sense to ask who was right about this question, since the ques­ tion only makes sense relative to a particular society’s values and practices.6 The difficulty is that this analysis, although better than the expressivist ana­ lysis, is still not actually faithful to the meaning that most speakers attribute to a statement like “slavery is wrong.” They intend to make a statement that is not relative to any particular place or time, to say something that would make it meaningful to say “the ancient Greeks approved of slavery, but they were wrong to do so.” But then we need an account of how such a statement could be true. The account under which a statement like “slavery is wrong” is intended to be a statement of fact, but such statements cannot be true because there is noth­ ing in the world that corresponds to the category wrongness, is known as the error theory. The most well-known statement of the error theory is J.L. Mackie’s Ethics: Inventing Right and Wrong. Mackie’s analysis is based on three main arguments. First, moral realism presupposes the existence of objective

6 This is essentially the position defended in Harman 1977, and in the essays in Harman 2000. See also Macintyre 1980 and Macintyre 2013, although Macintyre ultimately embraces Thom­ ism/Aristotle to escape these conclusions.

Moral irrealism

29

values, but there are no objective values, but rather, as Hume held, we project values onto the world. Second, the fact of widespread moral disagreement, with no accepted method of resolving these disagreements, is strong evidence that the disagreement is not about anything real. And finally, concepts like wrong­ ness are metaphysically “queer”; that is, unlike anything we know of in the world, and no sound account can be given of how they can bind us if we do not accept them. Like Hume, I am convinced that projectivism is correct: it seems to me to be glaringly obvious, and like him I find it difficult to come up with an argument to anyone who does not see this. It was also clear to Ludwig Wittgenstein, who argued that there are no moral facts and from this drew the colourful conclusion that “if a man could write a book on Ethics which was really a book on Ethics, this book would, with an explosion, destroy all the other books in the world.”7 Moral realists do of course have answers to the diversity argument. One is to note that diverse opinions about many moral questions can be attributed to dis­ agreements about factual matters: one reason primitive people practised human sacrifice is that they believed the practice propitiated angry and by our lights somewhat amoral gods who they thought ruled their lives. Had they not held this false factual belief they would not have engaged in human sacrifice. Simi­ larly, slavery may have been based in part on false beliefs that some races were inferior to others, and modern sexism may have similar explanations. There is no doubt that this account does explain a great deal of existing disagreement, but by no means all of it. To take only an obvious example, current raging dis­ putes between Kantians and utilitarians seem to be fundamental, and not based on differing factual beliefs. These parties have been arguing for well over two hundred years, with no apparent progress. I think the best explanation of their ongoing disagreements is simply that they have fundamentally differing prefer­ ences about how the world should go, and not that they are disagreeing about an underlying moral reality that one group or the other is misperceiving. The queerness argument is based on the idea that the entire concept of irre­ ducible normativity is essentially inexplicable and mysterious. We all of course understand some forms of normativity which are based on more basic norms: for example, if you want to please God you will obey his commandments. But ultimately any statement that you must do something needs to be backed up by some sort of unconditional requirement that it follows from, and this require­ ment stands in need of explication, at least to someone who is not inclined to accept it. But all attempts to back up such requirements fall short. This argu­ ment is the primary basis for Greene’s rejection of moral realism, and my own, and for a detailed discussion I would refer you to his dissertation.8 This issue is sometimes conflated with the dispute over whether moral consid­ erations are necessarily motivating: that is, whether understanding that morality

7 Wittgenstein 1965, pp. 7 and 10.

8 Greene 2002, Chapter 2. See also Olson 2017.

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requires something necessarily means you are at least somewhat motivated to do this. I am firmly on the Humean side in this dispute, but it is not really what is at stake here. What is queer about normativity is not its ability to motivate, but its ability to require us to do something. As Richard Garner writes: First, the genuine queerness of moral properties and facts lies not in their alleged power to motivate but in their alleged authority to command—whether or not they motivate. The normal way of understanding moral requirements is to think that they apply to us whether we are motivated or not … The issue is about intrinsic value and objective obligation, not motivation.9 There are also answers to the queerness argument, which attempt to assimilate moral properties to other properties such as numbers or other theoretical entities. These arguments all fail, primarily because there are acceptable explan­ ations for these other entities that do not involve positing the existence of meta­ physically dubious things, but discussing them would take us too far afield—for an excellent discussion which ultimately concludes that irreducibly normative statements are objectionably queer, see Jonas Olson, Moral Error Theory: His­ tory, Critique, Defence.10 There is an additional widely accepted argument for the error theory, which is closely related to the queerness argument. This argument states that moral cat­ egories do not exist, because they are not part of the best explanation of any­ thing that we experience.11 This theory is part of a metaphysical view, which I accept but is controversial, that we should reject the existence of any entities that are not required by the best explanation we have of anything that we experience. Thus we should say that electrons exist although we don’t see them, because their existence is required by the best explanation we have of physics. The argument then goes that moral categories are not required by the best explanation of anything we observe.12 The abolition of slavery, for example, was not caused by the wrongness of slavery, but rather by the widespread belief that slavery was wrong.13 This idea is very similar to Occam’s Razor, which is used, for example, to show that we should reject the existence of God because God is not required by the best explanation of the world we see. In his provocative and mostly true book, The Atheist’s Guide to Reality: Enjoy­ ing Life Without Illusions, Alex Rosenberg argues that the universe as we know

9 Garner 1994, p. 277. 10 Olson 2017. 11 Inference to the best explanation is a view about scientific and indeed general factual theoris­ ing, also sometimes labelled abduction, according to which we infer the existence of theoret­ ical entitles such as electrons because they provide the best explanation of what we observe. This account goes back at least to Charles Sanders Peirce, and was reinvigorated in Harman 1973. For the best recent account, see Lipton 2004. 12 Quine 1981.

13 See Harman 1977, Leiter 2001 and Marks 2012.

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31

it from science leaves no room for objective values or morality or indeed for purpose. He endorses what he terms scientism, which leads to a form of nihil­ ism. But he makes clear that it is a nice form of nihilism, because evolution has wired human beings to mostly comply with a core morality that we almost all share, but that these shared values are not true, but rather simply wired into us. Moreover, they will leave many moral questions unanswered: We have to acknowledge (to ourselves at least) that many questions we want the “right” answers to just don’t have any. There are questions about the morality of stem-cell research, or abortion or affirmative action or gay marriage or our obligations to future generations. Many enlightened people, including many scientists, think that reasonable people can eventu­ ally find the answers to such questions. Alas, it will turn out that all anyone can really find are the answers that they like. The same goes for people who disagree with them. Real moral disputes can be ended in lots of ways: by voting, by decree, by fatigue of the disputants, by the force of example that changes social mores. But they can never really be resolved by finding the right answers. There are none.14 Although I think this last argument is sound, there is a more convincing version of it that I think we should prefer. This is the argument that not only is the existence of moral categories like wrongness not required by the best explan­ ation we have, but the best explanation actually makes such categories less plaus­ ible than their non-existence. Again the analogy to arguments about the existence of God is useful. Although it is important and true that we do not need God to explain what we see around us (essentially Epicurus figured this out more than two thousand years ago), actually the existence of evil and suffer­ ing in the world is inconsistent with the existence of a loving God. God is not only superfluous, but the evidence we have is overwhelmingly inconsistent with the hypothesis that the universe was created by a loving God. Similarly, I would say that the evidence we have not only makes moral categories like wrongness unnecessary, but it is inconsistent with the belief that there are any real such categories in the world. The best version of this argument of which I am aware is a paper by Sharon Street, entitled “A Darwinian Dilemma for Realist Theories of Value.”15 She argues that the range of moral beliefs and practices we see in the world, includ­ ing the belief by most people in moral realism, is easily explained by evolution­ ary forces which, contrary to simplistic views, are highly likely to give rise not to a race of people like Attila the Hun but rather to people who are able to cooperate and live peacefully together much of the time,16 while disagreeing

14 Rosenberg 2013, p. 95.

15 Street 2006.

16 See, e.g., Bowles and Gintis 2013.

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about matters of value extensively as people generally do. Both the similarities and the differences we see in moral practices and beliefs are overwhelmingly more likely to be what we would see if values were subjective and morality purely conventional than if values were objective and morality something real.17 Another way of putting the argument against moral realism is based on the distinction, which can be traced back to Kant, between hypothetical and cat­ egorical imperatives. Hypothetical imperatives are based on particular values or desires, and are essentially conditional: for example, if you want healthy teeth you must brush twice daily, or if you want to win this chess game you should move your rook now. In many cases, of course, the first part goes unstated, because the speaker assumes you have the relevant desire: if I see you are playing chess I will probably just say you should move your rook because I assume you want to win. Indeed, sometimes stating the conditional is intended as a form of emphasis, as in Arnold Schwarzenegger in The Terminator movies saying, “come with me if you want to live.” The contrast is with categorical imperatives, which supposedly bind you what­ ever your values or desires may be. Kant believed there was only one categorical imperative although it had three different formulations which Kant thought equivalent, but not all agree. These are generally termed the Universal Law for­ mula, the Means Principle and the Formula of Humanity. All have their prob­ lems which have been exhaustively discussed in the literature. The position I am espousing here simply denies that there are any categorical imperatives: all imperatives are hypothetical, although in some cases the condition is so clear­ cut that they can appear categorical (i.e. “if you want to live” in The Terminator). Thus the basic principles of justice are hypothetical imperatives, along the lines of “if you want to have peaceful and cooperative relations with other people, you should practise these rules.” This is a desire most of us have, and more to the point, if you don’t have this desire, the rest of us have no reason to put up with you. But the rules are consequences of this widely shared desire, and are not binding on those who do not have that goal.18 At the end of every moral argument there simply rests an ipse dixit from the writer: you must do this because I say so. The justifications run out and the attempts to persuade fail because in the end there is nothing behind them but the author’s own value commitments.19 There simply are no categorical impera­ tives, just as there are no irreducibly normative truths.

17 See also Greene 2002, Chapter 3.

18 See Foot 1972 and Joyce 2002. See also Foot 2000b, p. 126, where she concludes that “if

justice is not a good to the just man, moralists who recommend it as a virtue are perpetrating a fraud.” Foot later resiled from this view—see, e.g., Foot 2003, but the widely held view, which I share, is that she was right the first time. 19 See Posner 2002.

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33

This is all the clearer when we consider the predominant mode of theorising in Anglo-American moral theory today: the method of “reflective equilibrium.” I summarised this method in the Introduction, and explained why I think it is a fallacious, indeed fraudulent method. It works (when it does) because most moral theorists are writing for other people who largely share their values and general world-view, and can thus perhaps be persuaded to buy into the argu­ ments of the theorist, although even then if the reader’s “intuitions” do not match up to the writer’s “intuitions” the argument tends to fall flat on its face. In short, they are preaching to the choir, and fail miserably when trying to per­ suade those who, like me, do not share their basic commitments.20 But the fact is we have no reason at all to trust our moral intuitions. Indeed, recent work in psychology dramatically undercuts the reliability of intuitions in all aspects of thinking.21 But our intuitions are especially suspect in the area of morality, as work in moral psychology makes totally clear.22 As computer programmers23 put it, “Garbage In, Garbage Out (GIGO).” All of these arguments have of course been responded to, and although I believe the responses fail, it would not be useful for me to rehearse all of the literature on this point. Instead, I will now examine the three main arguments that have been pressed in favour of moral realism. There are others, but I believe these three are the most cogent, and they all fail. The first is the argument that there is at least one thing that is definitely objectively morally wrong, and that if there is one thing that is morally wrong, why believe there cannot be others? The most common candidate is torturing innocent children for fun.24 Since few are willing to defend that, it must be wrong. But if that can be wrong, so can other things. I am going to bite this particular bullet, and say that torturing innocent chil­ dren for fun is not objectively wrong. In saying this I am not of course advocat­ ing it: I have children myself and definitely do not want them to be tortured. Indeed, I want everyone to be horrified at the idea of torturing innocent chil­ dren, and have an emotional taboo against doing so that is so strong they

20 Ibid.

21 See, e.g., Gilovich 1983, Chabris and Simons 2011, Kahneman 2012.

22 See, e.g., Haidt 2012. There is one possible exception to the statement in the text. Intuition

may be useful in interpreting a shared morality or other shared practice within a group where a person’s understanding of the group’s norms may well outstrip his ability to articulate the reasons. This is true of most of us, for example, with respect to the grammar of our language; we can see instantly that a sentence doesn’t sound right, but most of us could not articulate the rule of grammar that makes it wrong. But these intuitions are useless, and indeed get in the way, when we are dealing with people who do not share our basic framework. See Greene 2017. 23 For further reasons why intuitions and indeed all introspection are useless as a means of arriv­ ing at the truth, see Rosenberg 2013, Chapter 7 (“Never Let Your Conscious Be Your Guide”). Other cogent criticisms of the method of reflective equilibrium are Gaus 1996, pp. 101–108; and Millgram 2005, p. 10. 24 Thomson 1990, p. 30.

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would never even consider doing it. A society that has any hope of functioning well should inculcate such a taboo into all of its members.25 It is abundantly clear from a large body of research into moral psychology that morality as it actually exists in all human societies is almost entirely a matter of emotion rather than reason. We come predisposed by evolution to learn and obey the norms of our society, and to feel both shame and guilt when we vio­ late the rules, although of course the process of socialising us to do so is far from perfect. We also come predisposed to both empathise and sympathise with our fellow humans and to some extent other creatures, although psychopaths seem to lack this trait and in others its strength varies. We are also thoroughly socialised, both as children and even as adults, to have acceptable reactions to our own actions and those of others. We should thus expect that we will all believe torturing children for fun is wrong, indeed unthinkable, as indeed it is if wrong means “prohibited by any sensible social morality.” If you don’t think that, something has gone badly wrong, either with your biology or with your upbringing, or both. But of course that is not the meaning realists want. The second argument is the argument that I believe that there are things that are good for me and bad for me, and should concede that I am not special in that regard and that other people are the same. Therefore, if I want anything and try to get it, I am committed to thinking that others should have it too if they are similarly situated.26 This in turn means I have at least some reason to give it to them. I get off this argument at the last stage. It of course makes sense to think that others have desires and fears similar to mine, and they will try to get the things that they value just as I try to get the things that I value. It would be irrational of me to say I am entitled to get what I want but they are not. But it does not follow that I am obligated to any extent to help them get those things. I can without inconsistency embrace the idea that I am entitled to try to get those things if I can but not required to help others get them, just as they are entitled to try to get them if they can but not to help get them for me.27 This is all the consistency I must have to be rational. Of course, as we shall see, in many cases I can better achieve my own wants by helping others get their wants—indeed, that is essentially what markets involve, as Adam Smith famously observed.

25 But see Diamond 1998 for a description of the way the Conquistadors tortured Native American children for fun, along with other examples of horrifying cruelty practised and approved of by many cultures in history. The key fact is that these cultures all did and approved of such acts against members of out-groups, and not of course against their own members. Indeed, there are passages in the Bible where God purportedly instructs the Israel­ ites to carry out genocidal acts similar to those inflicted on the Melians by the Athenians. See generally Singer 2011 for a discussion. 26 The clearest statement of this argument is in Gewirth 1980. He calls it the Principle of Gen­ eric Consistency. 27 See Gilbert Harman in Harman and Thomson 1996, pp. 50–52, Wong 1984, pp. 80–83 and Narveson 2010, pp. 211–215.

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This same argument applies to what I believe is the strongest defence of moral realism, that of Peter Railton.28 He correctly adopts a subjective theory of value, essentially saying that value is what we would desire if we were free from factual error. He then gets to his own qualified realism by positing that we have a duty to be impartial as between our own values and those of other human beings. This leads to a form of consequentialism, but Railton gives no real argument as to why we must be impartial between our own values and those of others, and I see no sound argu­ ment for why we must do that. Of course, he is right to think that moralities as they are normally conceived must be impartial, but when the whole issue is whether we should accept or reject morality, assuming impartiality effectively begs the question. In what is probably the single greatest book on ethics, Sidgwick’s The Methods of Ethics, Sidgwick makes a similar argument, essentially saying that if I aim at the good (on his account pleasure) I should aim at all of it, not just part of it. From the “point of view of the universe,” no one’s good is more important than anyone else’s. But there are two simple replies to this: the universe is not a sentient being with a point of view, and there is no reason why we have to take up the point of view of the universe. At the end Sidgwick is forced to con­ cede that the utilitarianism that he advocates is no more rational than rational egoism. I would add that not only are those two views equally rational, but any intermediate view that mixes the two is rational, and there is no sound reason for preferring one over another.29 Third, there is the argument that if I want anything, I want it because I believe it to be good, but if it is good for me it must be objectively valuable, and thus in principle good for anyone.30 The argument goes, we value things because we see that they have value in themselves, not because we want to satisfy our desires. In a sense this is trivially true: when I want a piece of chocolate I simply want the chocolate, not a more complicated story under which I believe chocolate will pro­ mote my well-being, for example. I agree that in some cases it may be that things seem objectively valuable in this way, but it is overwhelmingly more plausible that this is an illusion. The idea that we perceive value that somehow exists out there in

28 Railton 1986. 29 In Lazari-Radek and Singer 2016, the authors pretty much endorse Sidgwick on everything, but question whether he was right to concede that egoism and utilitarianism are equally rational, arguing that an evolutionary debunking argument similar to Sharon Street’s (Darwin­ ian Dilemma, above) can be given against egoism but not against utilitarianism. This argument does not succeed. Evolution does not encode complete moralities like utilitarianism or egoism, but rather emotions and motivations which philosophers weave into theories. Evolution has encoded both self-regarding and other-regarding emotions and motivations in humans, as recent work in moral psychology makes clear. See, e.g., Pfaff 2014, Wilson 2015. If a thoroughly utilitarian morality were ever genetically encoded, evolution would indeed prob­ ably eliminate it, but its doing so would not make that morality true (or false). Their argument essentially assumes that there is a correct answer to the question of what we should do, which evolution might lead us astray from. But the point is that there is no correct answer! 30 Thomas Nagel seems to endorse this. See Nagel 1970. For a refutation of Nagel on this, see Wong 1984, pp. 83–87, Harman and Thomson 1996, pp. 52–53.

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the world is totally mysterious; we have no reason to believe in a world of value that we perceive by a sort of sixth sense. What makes far more sense to believe is that we value things because we are programmed by evolution and the environment to value them. In short, values do not exist in the world, but rather in our heads, and we project them onto the world.31 David Gauthier endorses this view as follows: Our account of value must therefore include what Mackie calls an “error theory.” We must suppose that persons objectify their preferences, and so come to consider their subjective attitudes and affections as properties charac­ terizing the objects of their preferences … If we instead suppose that the cor­ rect conception of value can be discovered only by an appeal to the best explanation of what value is supposed to affect, then we uncover the error pre­ sent in ordinary views, and establish a subjective conception. To be sure, infer­ ence to the best explanation will not show that there is no objective value, any more than it will show that there are no fairies at the bottom of the garden. We are content to put objective value on a par with the fairies.32 As Jonathan Haidt summarises the results of moral psychology: Perhaps because moral norms vary by culture, class, and historical era, psycholo­ gists have generally assumed that morality is learned in childhood, and they have set out to discover how morality gets from outside the child to inside. The social intuitionist model takes a very different view. It says that morality, like language, is a major evolutionary adaptation for an intensely social life, built into multiple regions of the brain and body, which is better described as emergent than as learned, yet which requires input and shaping from a particular culture. Moral intuitions are therefore both innate and enculturated.33 As Michael Ruse and Edward Wilson observed, Ethics as we understand it is an illusion, fobbed off on us by our genes to get us to cooperate. It is without external grounding. Morality, or more strictly our belief in morality, is merely an adaptation put in place to further our reproduct­ ive ends. Ethics is produced by evolution but not justified by it, because, like Macbeth’s dagger, it serves a powerful purpose without existing in substance.34

31 This is the position of Mackie, Greene, Olson and numerous others. See the essays collected in Joyce and Kirchin 2009. It is also essentially axiomatic in modern economics that values are subjective. See Mises 2007 for the Austrian view, and for the neo-classical view, see Stigler 1950. 32 Gauthier 1986, pp. 58–59. 33 Haidt 2001, p. 827. 34 Ruse and Wilson 1993, pp. 310–311. To similar effect see Ruse and Wilson 1986. Wilson repeats this idea in Wilson 2013, and Ruse in his 1986 and 1995.

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I own a pet Labrador Retriever, whose favourite thing in the world is to jump into a river to fetch a stick and bring it back so that I will throw it again and he can repeat this activity. It is clear he values doing this intrinsically, not for any further reason. But I know that he, like other Labrador Retrievers, was bred to have this preference because humans wanted to use these dogs to retrieve ducks that they shot. Most of us of course were not deliberately bred to have certain preferences, although our moral preferences in particular were shaped quite deliberately by our parents and other members of our society.35 They were also, of course, shaped by evolution: many of our preferences are there because having them promotes our inclusive fitness (e.g. sex, eating, avoiding pain and even valuing friendship, and the ability to reason).36 Biological and cultural evolution work in large part by making us value intrinsically things that are good for our genes, because this is a far better way of get­ ting us to do things than relying on our reasoning ability, which is quite limited. As Joshua Greene summarises other evidence from moral psychology: In the most general terms, what each of us gains from not living with individuals who disregard the interests of those around them far outweighs what each of us loses by showing consideration for the interests of those around us. While there is an ongoing debate about how morality2 managed to evolve, there is little doubt among evolutionary theorists that morality2 has evolved and that it has its advantages. Its advantages, however, are importantly different from those associ­ ated with our purely perceptual capabilities. As noted above, our ability to tell at a glance who is male or female is advantageous because it allows us to accurately represent mind-independent facts about our environment. In contrast, our col­ lective dispositions to help and refrain from harming one another are not advan­ tageous because they allow us to know something about how the world is in and of itself, but because they help us survive as individuals in a social context.37 Derek Parfit complains that the view that all values are subjective ultimately leads to nihilism,38 but this strikes me, and many others, as a needless worry.

35 See Boehm 2012, who argues that in primitive tribes people who were not sufficiently moral were executed or ostracised, which may have led to their quick death. 36 On this last see Sperber and Mercier 2017, which argues persuasively that we value education and reasoning not because they help us manipulate the physical world better, although they do this, but because they better enable us to persuade others and thus gain influence in our social group, which was highly valuable in the societies in which humans evolved, and prob­ ably led directly to reproductive success. It is also likely that being moral makes us more attractive to potential mates; a spouse who will sacrifice her interests for the sake of a couple’s joint children is a valuable resource, and a willingness to make such sacrifices for others gener­ ally is a sign of a good marriage partner. For the importance of sexual selection generally in shaping both human and non-human evolution, see Miller 2001. 37 Greene 2002, p. 178. The reference to morality2 is Greene’s terminology to reflect the differ­ ence between actually behaving in ways that respect the rights and interests of others (moral­ ity2) and belief in moral realism (morality1). I have retained it so as not to mislead. 38 Parfit 2013.

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Subjective values give us all the reasons we need to act. I do not need to believe in objective values to love my wife and children, to enjoy sex, to write books or to travel to far-off and interesting places. Knowing that the world has no value in itself and that value comes from within me is not the slightest bit debilitating, but rather liberating.39 Perhaps because they understand that talk of objective values is deeply implausible, recent apologists for moral realism have shifted tactics and adopted the practices of talking about reasons instead.40 The idea that there are objective or real reasons to do things sounds less metaphysically outra­ geous than talk of objective values, but it really amounts to the same thing. We have no more ground for believing in objective reasons than we do in objective values. The best account of what we have reason to do is the “internalist” account, according to which to say a person has a reason to do something is to say that doing so will help that person achieve what he values or desires (which may of course include other-regarding desires) better than other actions open to him. This account, which originates with Bernard Williams41 but ultimately derives from Hume (see the quote from Chapter 1 that reason is only “the slave of the passions”), has been persuasively devel­ oped by Sharon Street,42 Alan Goldman,43 Mark Schroeder44 and others.45 Once again, the main argument against this view is to point out its sup­ posedly shocking consequences. To use an example standard in the literature, the internalist view seems to entail that for an ideally coherent46 Caligula, the fact that his victim is suffering is not a reason to stop torturing him, but rather a reason to continue, when of course in fact he has reason to stop the torture.

39 The mandatory reference here is to Camus 1991. 40 See, e.g., Parfit 2013, Scanlon 2014. Scanlon defends realism about reasons, what he terms “reasons fundamentalism,” by positing reasons as a separate domain from science, with its own standards of validity. This strikes me very much as an exercise in make-believe: we have no reason whatsoever to believe in a domain of reasons, and have a perfectly adequate account of reasons (the internalist account) that does not require us to make up a fairy tale. The same is true of Ronald Dworkin’s defence of moral realism in Dworkin 2013, when he posits a separate domain of value. Both are very much preaching to the choir; that is, to people look­ ing for a way out of the conclusion that moral realism is inconsistent with what we know in science and unwilling to give up their belief in realism. Dworkin’s arguments are largely a recapitulation of arguments he made in what I, along with many, regard as his worst ever paper—Dworkin 1996. For a thorough demolition of his position see Leiter 2008, Street 2016. 41 Williams 1981.

42 Street 2008.

43 Goldman 2012. I find this book especially helpful, as it avoids getting bogged down in tech­ nical and semantic issues like Schroeder, below, does, although the latter would probably be more useful for specialists. 44 Schroeder 2007. 45 For a good anthology on the issue, see Setiya and Paakkunainen 2011. 46 This qualification is added because the historical Caligula may well have been insane, and therefore not acting for reasons at all.

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But we should reject this view, and simply say that Caligula has reason to tor­ ture people on his own values, while according to our values he has reason to stop. Talk of objective values or external reasons simply muddies the waters by referring to non-existent things. Once everyone understands this, we will not need to include the qualifier “according to my values” since it will be under­ stood that any value statement refers to the speaker’s own values unless other­ wise stated. Of course, in most contexts the speaker will assume, perhaps for good reasons, that his audience will share those values and beliefs, as he is otherwise wasting his time, but in many cases this assumption will be warranted. In my view, when people talk about objective values or external reasons, they are really just trying to make you adopt their values and act on their reasons. They may honestly believe that their values have some objective or external val­ idity, but they are either fooling themselves or trying to fool you.47 Such people are not your friends. If you share their values, as you may do, that is fine, but if you do not you should never be bullied by talk of objective values or external reasons. There are no such things. One final string to the realist bow is to argue that it is not only moral state­ ments that are subject to the objections I am making, but all normative state­ ments, which include scientific statements which typically ultimately depend on normative criteria (e.g. the considerations that make an explanation “best” which include things like simplicity, coherence and comprehensiveness).48 They also argue that in arguing for any theory, including the error theory, we are appealing to normative criteria about what we have most reason to believe. I concede this, but when we are talking about theoretical reasoning, we are ultimately appealing to our shared interest in getting at the truth. Ultimately, our reasons to believe things must appeal to our interest in having true beliefs,49 and an appeal to the criteria for best explanations such as simplicity and coherence should be justified because using those criteria is most likely to result in our having mainly true beliefs.50 I am happy to concede that if you do not value having true beliefs, you have no reason to believe the error theory.51 Of course, most of us have good prudential reasons to have mainly true beliefs, as doing so will help us achieve our aims better than false beliefs, but this will

47 Sometimes fooling yourself is the best way to fool others. See Trivers 2014.

48 See, e.g., Putnam 2004, Cuneo 2010.

49 Not everyone agrees. See Nietzsche 1966, p. 10, “the falsity of a judgment is not necessarily

an objection to the judgment.” I have had people, especially religious people but also some moral realists, argue to me that we should believe in God, or in moral realism, even if those beliefs are probably false, because having such beliefs will result in us leading better or happier lives. This variant of Pascal’s Wager does not seem to me to be refutable, but I will simply assume that most of my readers share my preference, perhaps not wholly rationally defensible, for true over false beliefs. 50 This view is known as reliabilism, and is in my opinion the correct view in epistemology. See Goldman 1988. I do not believe that anything I say in this book hinges on that, however. 51 For a more detailed response to this argument, see Olson 2017, Chapter 8.

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not always be so. I also believe, as I argue below, that rejecting moral realism will make at least most of our lives go better, by helping us to free ourselves from false beliefs about our moral obligations. As I said in the Introduction, I am essentially summarising a large existing literature in this chapter, and believe that the literature in the area comes down decisively in favour of the error theory. In the rest of this book, I will essentially assume the truth of the error theory.52 The main reason most philosophers have embraced moral realism is the fear that rejecting it will lead to a form of nihilism, or a philosophy of anything goes. I hope to show below that this is not so, and that we can build a useful morality on the basis of mutual advantage. But I do not think that rejecting moral realism should leave our practices unchanged. On the contrary, I will argue that where commonplace moral beliefs cannot be shown to be mutually advantageous, they should be rejected, and thus that the falsity of moral realism has real implications for our practices. At the same time, I should make clear that I do not believe rejecting moral realism means we should all become pure egoists. That would almost certainly have bad results, both for ourselves and other people. Humans evolved to be social creatures, and very few of us would be happy acting wholly in our own interests. Here I can do no better than to quote Richard Garner: By “doing without morality” I do not mean doing without kindness, or turning ourselves into sociopathic predators. I simply mean rejecting the idea that there are intrinsic values, non-conventional obligations, objective duties, natural rights, or any of the other peremptory items moralists cher­ ish. To reject morality is to reject those beliefs, something very few people have ever been willing to do.53 Although a detailed discussion will have to await my elaboration of where I think contractarianism leads us, I will mention now what I see the main objec­ tion most people will have. A fully elaborated contractarian theory will almost certainly conclude that some values that the reader has cannot legitimately be imposed on others. For example, some people strongly believe we have a duty to help the poor: I will conclude that for the most part we have no such duty. Others strongly believe in animal rights, but as Epicurus noted over two thou­ sand years ago, contractarian justice leaves no place for animal rights. I am sure the reader will have other favourite values that he wants everyone to embrace that a contractarian theory will reject.

52 Especially useful are Alexander 1987, Greene 2002, Joyce 2002, 2007, Tersman 2009, Marks 2013, Olson 2017. I also read Bernard Williams 1986 as an endorsement of moral irrealism and an argument for instead endorsing a form of virtue ethics. 53 Garner 1994, p. 3.

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I think we simply have to accept this conclusion, and try to change our ways of thinking as a consequence. There are of course views and values that we should not make peace with: we do not have to tolerate Nazis, child molesters and some others with whom making peace would not be worth doing—as Jesse Prinz says, “I respond, not with reason, but with the fist.”54 Or as Joshua Greene says, “in rejecting moral realism we must reject the whole thing, includ­ ing the assumption that it is wrong to oppose that which is not wrong.”55 But we need to live in peace with most people, and need to tolerate many views we disagree with.56 As I will argue in Chapter 4, the very first thing we should agree upon is something like the Harm Principle, according to which we should generally allow people to do anything that does not harm others. But since a broader morality has no rational basis, you simply have no basis for imposing it on those who don’t share it if you cannot show that it is beneficial to them. I think people need to accept that a contractarian morality will not generate all the results they want, and grow up and accept this an inevitable consequence of living in a pluralistic world. But we should also remember that the fact that a value is not mutually beneficial does not require us to give it up; on the con­ trary, our values are still our values, and the fact that they have no objective warrant does not affect their status as our own values. I continue to throw my dog sticks to fetch because he enjoys it, even though I know his reasons for intrinsically valuing that activity. Knowing that I, like many animals, am bio­ logically programmed to love my children does not make me love them any less. If you believe in helping the poor, by all means help the poor. Indeed, once we recognise that we should not compel others to serve our values, we have all the more reason to promote them ourselves, to “be the change we want to see in the world.” As an example in this regard I would point to Joel Marks in his excellent book Ethics Without Morals. Marks is a thorough moral antirealist, but also a committed vegan and animal rights activist. He abhors meat eating, animal testing and other forms of what he considers animal abuse, but has the wisdom to recognise that this is a personal preference he has no right to impose on others. He instead concentrates on educating people about the facts around fac­ tory farming, for example, in the hope that their evolved emotions will lead them in light of these facts to share his views and give up meat eating and other practices. That is exactly what everyone should do with respect to moral beliefs that fail the test of contractarianism. In this chapter I have deliberately used as my example the statement “slavery is wrong,” because that is a statement that most people regard now as uncontro­ versial, although it was controversial for a long time, and wise men including Aristotle thought it false. Lincoln famously said, “Either slavery is wrong or

54 Prinz 2011, p. 125.

55 Greene 2002, p. 212.

56 For a good discussion, see Wong 1984, Chapter 12.

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nothing is wrong.” Lincoln was right, but not for the reason most people think. A disjunction is true if either of its disjuncts is true. Lincoln’s state­ ment is true, but not because slavery is wrong. Rather, he was right because nothing is wrong in the sense that moral realists mean. Slavery is wrong because we have decided to prohibit it, not the other way round. We expanded the circle of our morality by applying it to people we previously excluded, and made the world a better place by doing so. Objectively better? No. There is no such thing as objectively better or worse. But better accord­ ing to my preferences, and I hope yours. I am thus very glad we outlawed slavery and wish it had happened far earlier than it did. Nevertheless, the idea that slavery was wrong before we outlawed it, and that in outlawing it we recognised a previously existing prohibition, is a patently silly view. I think Joel Marks is right, in his book Bad Faith: A Philosophical Memoir,57 to use the words “bad faith,” which he borrows from Jean-Paul Sartre, to describe the moral realist view. It is a view that we should know to be false, but believe because it makes us feel good. As Marks admits, “my delusion of morality was absurd, as flagrantly in opposition to the most obvious facts of the world, as are the Biblical beliefs of any fundamentalist.”58 But as Nietzsche foretold, the will to truth is too strong for this view to retain any grip on us for much longer: As the will to truth gains self-consciousness—there can be no doubt of that— morality will gradually perish now: this is the great spectacle in a hundred acts reserved for the next two centuries in Europe—the most terrible, most ques­ tionable and also perhaps most hopeful of all spectacles.59 The issue we must address now is whether, once we see that moral realism is false, morality should perish.

Fictionalism or abolition? Many philosophers who have rejected moral realism have nonetheless agreed that morality serves a useful social function and have therefore been uncomfort­ able with simply advocating its abolition. Once again the parallel to religion is there: many people who believe that there is no God worry that if this belief became widespread it would undermine people’s willingness to comply with the requirements of morality which, to the extent that these are mutually beneficial, would be bad for everyone. Hence Voltaire’s famous statement, “if God did not exist it would be necessary to invent him.”

57 Marks 2013. Of course, Marks admits that he was formerly a moral realist, a position he now recognises was held in bad faith. 58 Ibid., p. 74. 59 Nietzsche 2013, III, 27.

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Most acute thinkers no longer think this, and believe that religion actually does more harm than good, by making people view their opponents as evil and making them willing to kill themselves and others (think suicide bombers and seventy vir­ gins) to impose their own values on others.60 I believe the same is true of moral realism: it is a myth that does more harm than good, and it should be completely and publicly denounced, as I am doing here. But I recognise, as I think sensible people should, that whether this is true is a difficult empirical question very hard to settle from the armchair, just as it is with respect to religion. Very sensible philosophers disagree, though. John Mackie, whose Ethics: Inventing Right and Wrong woke many from their dogmatic slumber,61 appeared to believe that his refutation of moral realism required little or no change in our moral practices. Richard Joyce, whose The Myth of Morality took up Mackie’s mantle, expressly advocates moral fictionalism, under which we should pretend that morality is true even though we know deep down it is false, much as we pretend when watching Game of Thrones that dragons are real even though we know there are no dragons.62 Joyce’s argument is based primarily on two considerations. First, it is very clear that evolution has strongly predisposed people to be moral realists;63 in Joshua Greene’s words, it is a “mistake we were born to make.”64 This is not because evolution hard-wired us with a particular metaethical theory: that would be implausible in the extreme. Rather, it is because we come predisposed to learn and internalise moral rules to the point where they are automatic and largely unconscious, as research in moral psychology makes abundantly clear.65 Because morality is programmed into us in this way, it seems to be part of the world, but it really isn’t; it is projected by us onto the world without us noticing it. But if we are predisposed to see the world in moral terms, trying to rid our­ selves of this illusion will be very difficult, perhaps impossible.

60 See, e.g., Dawkins 2006, Hitchens 2008. 61 In my own case it was reading Sartre, Nietzsche and Camus, although Mackie and Ayer sealed the deal for me by showing that the same conclusions could be reached by what I now view as sounder philosophical methods. 62 I should mention here the “quasi-realism” of Simon Blackburn, who appears to agree that moral realism is false but thinks we can “earn the right” to talk like realists anyway. See Black­ burn 2001, 1993. I must confess to being unsure that I fully understand Blackburn’s pos­ ition, which has seemingly achieved very few adherents. For what I take to be useful responses to Blackburn, see Street 2008, Greene 2002, especially Chapter 4. Although Black­ burn disputes David Lewis’s suggestion that quasi-realism is a form of fictionalism (see their respective contributions to Kalderon 2005), I think that what I say about fictionalism also applies to quasi-realism. I think it also applies to Jonas Olson’s suggestion, which he calls con­ servationism, which I myself struggle to distinguish from fictionalism. See Olson 2017, Chap­ ter 9. 63 See Joyce 2007.

64 Greene 2002, p. 188.

65 Ibid., Chapter 3, Wright 1996, Ridley 1997, Joyce 2002, Nichols 2004, Hauser 2006, Haidt

2012, Ridley 2016.

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Second, Joyce believes that pretending that morality is true will make it easier for us to comply with our moral obligations, which are mutually beneficial to all in the long run. Pretending that morality is real will help us combat weakness of the will; that is, cases where morality requires one thing but our urges or selfinterest incline us in other directions. In short, morality functions as a commitment device.66 It is also easier to teach morality to children by saying it is something real, as they may be incapable of understanding the truth about morality. I think all of Joyce’s arguments are true and important, but I think they are both overstated and outweighed by the considerations that argue against con­ tinuing to use moral language in realist ways. On the first point, I do not agree that we need to pretend to be realists to comply with our obligations. Consider this example from Joshua Greene: Joyce imagines three possible agents faced with a choice of whether to join an unscrupulous friend in shoplifting. Agent 1 is a moral realist who resists in the usual way, by thinking that it would be wrong to shoplift. Agent 2 is a fictionalist who resists by telling himself and pretending to believe that it would be wrong to shoplift. Agent 3, the revisionist, has, according to Joyce, “nothing to say” to himself and to his friend about why he shouldn’t shoplift and is therefore more likely than his realist and fictionalist counter­ parts to give in to temptation. But why should Agent 3 have “nothing to say”? Why can’t he say, “It’s against everything I stand for! I couldn’t live with myself as a thief!” Joyce claims that if Agent 3 were to give in to temptation “it’s not clear that he would feel anything more than surprise at having done so.” But why should he not experience the sickening feeling of having betrayed his core values?67 There are also significant downsides to fictionalism that seem difficult to over­ come. First, moral realism is simply false, and indeed obviously so, and for me it is virtually impossible to fool myself into believing in something I know to be false, however useful it might be. Not everyone shares this problem; many people I know seem to have no problem with it, but advising it seems impru­ dent; eventually, as Nietzsche says, the will to truth will become self-conscious. Second, I believe moral language is dangerous at the interpersonal level: it tends to make disputes that should be resolvable based on practical inquiry into mat­ ters of scientific fact and mutual interest into intractable disputes between good and evil, in which compromise is impossible because the other side must be fought at all costs.68 Fictionalism might be okay if we lived in a society in which

66 On this see Frank 1991, Campbell 2014.

67 Greene 2002, p. 254.

68 For a much more thorough and complete argument to this effect, see Greene 2002, Chapter 4.

See also Garner 1994, Moeller 2009, Marks 2014, Garner 2019.

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45

everyone agreed on moral matters, but is potentially disastrous in a pluralistic world like our own, in which people disagree, sometimes violently, on moral matters. It is a way for people to bully, or browbeat, those who disagree with them, and it impedes, instead of furthering, the process of reaching agreement. And third, as I will argue in Chapter 4, it leads us into a number of errors, among the chief of which are beliefs in equality, fairness and other norms we would be better off discarding. Abolishing moral discourse has a further large benefit in the area in which I am most interested: legal philosophy. A belief that a practice is morally wrong is frequently a prelude to an attempt to outlaw or regulate it, something that is a major cause of the fact that we live in Leviathan states today. To choose an example in the news recently where I live, a journalist recently called for artifi­ cially intelligent sex robots, which are apparently in the planning stages, to be outlawed, on the ground that it is wrong for humans to have sex with robots. Since no human would be harmed by this practice, it could not possibly be out­ lawed on the basis of a mutually beneficial agreement among humans. Perhaps realising this, the journalist speculates that men having sex with AI robots would lead to them viewing and treating human females differently. But this is also no basis for a law against such robots: the journalist has no right to use law to shape other people’s sexual attitudes to suit her own preferences for how the sexes should relate to each other. Stopping using moral language and believing in morality would disarm busybodies like this journalist. Of course, some moral realists also endorse principles (most famously the Harm Principle) that would also have this effect.69 But the arguments are quali­ fied and fail to persuade many determined moralists, and certainly among lay­ people the path from “X is wrong” to “X should be banned” is frequently short and easy. Since nothing is wrong, revising our language accordingly would make defusing such arguments far easier. Of course, a contractarian approach could outlaw a practice if it would actually cause a significant increase in some­ thing we clearly could prohibit on the ground of mutual benefit, such as rape. But the aforementioned journalist does not even attempt to show that this would happen, and the suggestion is quite implausible; it seems rather more likely that furnishing a harmless outlet for would-be rapists would lead to a decrease in rapes. I therefore believe we would be better off to cease using most moral language at all, and try to revise our language to instead base arguments on our own values and on the facts as we believe them to be, based on the best evidence available to us. Or if we cannot entirely avoid moral language, we should use it in a way that is self-conscious about the fact that we are talking about mutually agreed rules that get their authority over us solely by convention.

69 The most well-known example of this is Feinberg 1989. More recently see Simester and von Hirsch 2011.

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Moral realists frequently make an argument that they take to be a knockdown against abolitionism, to the effect that it is incoherent or self-defeating.70 What can I possibly mean by saying we should abolish morality, when my arguments undermine all “should” arguments including my own? But this is silly: I and other irrealists do not criticise all “should” arguments, but rather only “shoulds” that appeal to irreducible norms, categorical imperative, external reasons and similar mythical creatures. The “should” in my argument is a hypothetical imperative or an internal reason: it argues that our lives will go better (not objectively, because there is no such thing, but subjectively) if we abolish moral­ ity. We should do it if we want our lives to go better. I do, and hope you do too. We can continue to use words like “should” and “ought” so long as when pressed, we make clear that these words are meant in an irrealist way, as refer­ ring to an assumed goal or value rather than to objective values or reasons. In a cogently written and argued paper commendable for its clarity, James Lenman (who is an expressivist) argues that despite the fact that the metaphys­ ical and epistemological basis for morality is missing, we have no choice but to go on using moral language because the alternative is unthinkable.71 He agrees with me that fictionalism is an odd and implausible view, but he also finds moral abolitionism unacceptable: How willing would you be to agree to live in a society where murder was simply OK? How willing would you be to agree to live in a society where any appeal in any context to considerations of fairness and justice was simply not recognised as carrying any rational force? Some people might be willing to agree to all these things and people like that might be serious moral abolitionists. But I’m not willing to accept these things. And neither are you.72 Neither am I, of course, but I do not think this means we have no alternative but to go on with our current totally non-productive practice of moral brow­ beating. There are things we cannot live with, and we shouldn’t agree to any social conventions that allow them. But we can get what we need by agreement, or where we cannot agree, by coming up with reasonable ways to agree to dis­ agree. We do not need to pretend to be divining some mind-independent truth about an imaginary realm of values, reasons or other norms. We can simply dis­ cuss what we can and cannot accept. Pretending that morality is something real has a further crucial defect that I think should persuade us to discard it: it leads us to deflect our attention from what really matters, which is how best to achieve our values and desires. This is particularly true where people engage in the useless practice of reflective

70 See among many examples Kohler and Ridge 2014.

71 Lenman 2014.

72 Ibid., p. 48.

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equilibrium to decide what we should do, rather than engaging in deciding what it is we really value and how best to go about achieving it, which is a largely empirical exercise. In short, we should stop doing moral philosophy, and instead do economic analysis of law and similar work in the psychology of social norms.73 Here I can do no better than to quote Eric Campbell: Now my point is not that we can’t create principles or policies to guide us here. Just the reverse; I think we will certainly need them in very many con­ texts. But thinking of moral principles as being true or false, rather than better or worse at promoting our (deepest, highest) values is both a symptom and cause of the lack of awareness of the value of such principles. So my point isn’t that we should do without principles or policies generally, but that the moral­ ization of principles serves to block an understanding that those principles are —at their most valuable and least pathological—in the business of protecting and promoting things we care about. And once we gain such an understand­ ing, we will be in a position to craft better policies and principles.74 This is especially true when we understand that people differ significantly in what they care about. As Joshua Greene says: Once again, the enemy, the wolf in sheep’s clothing, is moral realism. Con­ flicts of interest may be inevitable, but they need not be exacerbated by people’s unflagging confidence that they’re right and that their opponents are wrong. The solution, then, is to get rid of realist thinking and to start by getting rid of realist language. Speak only in terms that make the sub­ jective nature of value plain. Instead of saying that capital punishment is wrong say that you are opposed to it. Say that it is an ineffective deterrent, difficult to implement in a colour-blind fashion, and likely to lead to irre­ versible mistakes. And then say no more.75 Instead of moralising, we would do well to follow Richard Rorty’s advice: It would be better to say: Here is what we in the West look like as a result of ceasing to hold slaves, beginning to educate women, separating church and state, and so on. Here is what happened when we started treating certain dis­ tinctions between people as arbitrary rather than fraught with moral signifi­ cance. If you would try treating them that way, you might like the results.76

73 For a different argument for a largely similar conclusion, see Kaplow and Shavell 2003. Although I agree with much of what Kaplow and Shavell say, I do not endorse their essen­ tially utilitarian conclusions, as will appear in Chapter 3. 74 Campbell 2014, pp. 474–475. 75 Greene 2002, p. 236. 76 Rorty 1997.

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One potential problem with abolishing morality is the finding of a lot of recent work in moral psychology, to the effect that cooperation in humans is highly dependent on punishment of those who violate norms, and generally collapses in the absence of such punishment. The basic idea is that punishing norm viola­ tions is frequently costly to the punisher, and we need the reactive emotions to get us to incur this cost, which is in many ways a public good.77 Would we con­ tinue to have these reactive emotions if we understood that morality is a human creation? Many people are understandably doubtful about whether people will comply as well with rules that they know are human inventions, as opposed to somehow being imbedded in the universe. But I am optimistic, and here I will point to the analogy with sports and other games. Everyone understands that the rules of games are human inventions: God did not create chess or baseball or golf. We know that these rules make possible a game that we enjoy (those of us who do), and that if they are not complied with the games become almost impossible. In many contexts compliance with the rules of sports and games is very widespread. Of course it is not universal, but neither is compliance with moral and legal rules. And where the rules are not complied with and people are caught, the outrage is widespread and sanctions are both supported and justified: witness the opprobrium of the fans when Justin Gatlin, previously banned for using performance-enhancing drugs, defeated Usain Bolt in the latter’s final 100-meter race in 2017, or the speed with which Lance Armstrong went from hero to villain when his use of such drugs was uncovered. I believe that people can and will learn to be outraged at, and to enforce, rules they know to be man-made where they see their necessity.78 What they will not do, and I would submit should not do, is worship compliance with rules that are not justified based on considerations of mutual benefit. In this regard I find useful the work of Cristina Bicchieri,79 Joseph Heath80 and Tom Tyler,81 which tends to show that most people obey rules and laws that they believe to be justified, at least if they are fairly administered. Indeed, the evidence suggests that people are, if anything, too willing to follow social norms, sometimes following norms they disapprove of because they erroneously believe that others approve of them.82 There are a great many dysfunctional83 social norms in this

77 See, e.g., Sober and Wilson 1999, Fehr and Fischbacker 2004, Henrich et al. 2006, Henrich 2015. 78 For suggestive empirical evidence that giving up belief that a moral obligation is objective does not undermine the seriousness with which the violation is viewed, see Nichols 2014, p. 742 and the sources cited therein. 79 Bicchieri 2006. 80 Heath 2011. 81 Tyler 2006. 82 See Bicchieri 2017, pp. 42–47. 83 How can I call a social norm dysfunctional? By saying this, I am asserting my own disapproval of the norm, but also arguing that the people who follow the norm would do better, by their own lights, to discontinue the norm. I could of course be wrong about this, but my saying it does not involve an appeal to moral realism.

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world, and directing attention away from a general duty to be moral to a functional analysis of which norms are truly mutually beneficial may well be all to the good. This may require us to make more efforts both to make sure the laws and moral rules we ask people to obey really are justified, and to educate them on why they are, if they are, rather than relying on blind obedience based on false metaethics. The downside to this that concerns me is that by abjuring talk of morality, we thereby cede the “moral high ground” to our opponents. Is dropping moral language a form of unilateral disarmament, useful if everyone else follows suit but disastrous if they do not? This possibility concerns me, although I myself no longer view moral language as “the high ground,” and instead think it is a type of abuse. But since I admit that most people do not agree and are unlikely to do so in the near future, there is no doubt that it is a risky strategy. Perhaps I am myself guilty of a quasi-religious belief that the truth will ultimately prevail in the face of the irrational, a belief every bit as irrational as I think belief in moral realism is. Nevertheless, that is what I will do. I should stress, though, that these are empirical matters, and particularly diffi­ cult ones as they involve counterfactuals, which are notoriously difficult to assess at times. Thus we should promote further research in this area as much as pos­ sible, and be prepared to reconsider if we conclude that widespread knowledge that moral realism is false is really undermining compliance with socially justified rules. But even then I am inclined to doubt that the “Noble Lie”84 that fiction­ alism involves is really the answer. As Joshua Greene says, “Speaking as if moral properties were out there in the world is, however natural, a foolish thing to do, and no adequate theory of truth will require us to speak foolishly.”85

84 The term Noble Lie is a characterisation of Plato’s Republic, in which Plato concludes that the multitude cannot understand his theory of justice and therefore need to be told a mythological story to get them to comply with it. Of course Joyce does not advocate lying to the public but rather to ourselves, but one wonders if perhaps his strategy can only work if it involves not publicising the truth about moral realism too widely. For a partial endorsement of the Noble Lie strategy, see Sidgwick 1907, recently adopted and further defended in Lazari-Radek and Singer 2016. 85 Greene 2002, p. 251.

3

A contractarian approach

Having hopefully demolished moral realism, in the rest of this book I will try to show where I think the correct approach, which following the predominant label in the literature I term “contractarian,”1 should lead us. I will begin by contrasting my approach with what is probably the main modern work bearing the contractarian label, showing the significant ways in which my approach dif­ fers. In particular, I will argue that we should eschew the approach of trying to arrive at grand overarching principles that would be agreed by contractors in some hypothetical situation, and instead begin from the social norms that have actually evolved in a society, keeping and promoting those that are indeed mutually beneficial and discarding those that are not. I will also explain why the approach I advocate should not lead us to become utilitarians, as at least some irrealists urge. I will then explain why a common argument against contractarianism, that it gives us the wrong kind of reason to do what morality requires, fails. In the following chapter, I will explain why the norms that we have most reason to endorse can be loosely summarised by something I call, following Arthur Ripstein, the Sovereignty Principle, according to which we should respect each person’s right to control himself and his property as against the claims of others to use or benefit from those things. I see this not as a master principle of the sort I just disavowed, but rather as a useful sum­ mary of the general tenor of the social norms that have evolved in at least Western society, norms we do well to keep and reinforce. Where we recog­ nise exceptions to this principle, we do so because a narrow exception is mutually beneficial, and the principle modified to recognise this I refer to as the Reciprocal Sovereignty Principle. I defend this against its close analogue, the Harm Principle, as a guide to how societies should be structured so as to create just results.

1 See, e.g., Darwall 2003. In Southwood 2010, Nicholas Southwood calls approaches like mine Hobbesian contractualism, which he contrasts with Kantian contractualism of the sort defended by John Rawls and by Thomas Scanlon in Scanlon 2000. The term “contractarianism” for approaches like mine is the more common term, and I will follow this usage throughout.

A contractarian approach

51

One clarification is worth making at this stage. It is not my argument that no one could rationally choose to be subject to stronger norms, for example norms requiring aid to the poor or easy rescues or imposing other obligations that I reject on the ground that they are not universally mutually beneficial. There may be many persons who want to endorse such norms in their own lives, and nothing I say implies that they may not do this. What they cannot do is to impose these norms on those for whom they are not mutually beneficial. It is the fact that there are substantial numbers of persons for whom such norms are not mutually beneficial that makes their imposition on those persons unjustified. The remainder of the book then considers the implications of the approach based on the Reciprocal Sovereignty Principle for various major issues in polit­ ical philosophy. These include the proper analysis of freedom (Chapter 5), the issue of our obligation to obey the law (Chapter 6), the just distribution of property (Chapter 7) and the general rules of private law (Chapter 8). In Chap­ ter 9 I explain why these principles leave only a limited but still important role for democracy, in part by examining how most statutory law is not justified under the Reciprocal Sovereignty Principle, but rather represents illegitimate attempts by some to impose their values on others via the ballot box. Finally, in Chapter 10, I will explain why a robust form of federalism, which I call Federalism on Steroids, is the answer to the concerns of those who would find life under the fairly limited government that I believe can be reasonably jus­ tified on a contractarian basis unacceptable, and why those persons should be limited to this answer, rather than permitted to impose their preferences on the rest of us. My discussion of this is necessarily sketchy and preliminary, but I hope suggestive of at least the direction in which we should move if we want to have societies that can plausibly claim to be justified under a theory of justice as mutual benefit.

Contractarian method The best short explanation of the contractarian approach that I know of is in Robert Sugden’s new and outstanding book The Community of Advantage: A Behavioural Economist’s Defence of the Market:2 In contractarian theories, social arrangements are not assessed from the viewpoint of a benevolent social planner. Instead, they are assessed from the several viewpoints of individual members of society, considered as potential parties to an agreement or “social contract.” In evaluating a social institu­ tion, a contractarian theorist does not ask whether aggregate social welfare is maximized. Instead, he asks whether it is in the interest of each individual to accept the rules of that institution, on the condition that everyone else does the same.

2 Sugden 2018, p. 14.

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A contractarian approach

When most philosophers see the word “contractarianism” they immediately think of David Gauthier’s Morals by Agreement.3 That book is an ambitious attempt to derive and justify morality based on rationality, and while it is a brave attempt, almost all commentators agree that it ultimately fails in this endeavour.4 Gauthier’s book essentially attempts to show that morality would be agreed to by rational persons in a specified hypothetical situation. This hypothetical consent type of argument is a common device—the most well-known modern example being John Rawls’s A Theory of Justice, which argues that justice is what rational parties choosing behind a suitably defined “veil of ignorance” would choose. Gauthier’s hypothetical contract is much more realistic than Rawls’s, in that he does not impose a veil of ignorance or otherwise try to deprive people of knowledge of their own circumstances, values or preferences. But it suffers from the same fundamental flaw that any hypothetical contract argument does: a hypothetical contract is not a real contract at all, and there is no reason why anyone should consider himself bound by a contract he might have made in different circumstances. The fact that I might have sold you my Rembrandt painting for £100 if I did not know it was a Rembrandt gives me no reason at all to sell it to you for that price now, when I do know it is valuable.5 We simply have no reason to consider ourselves bound by a contract that differ­ ent people would have made in different circumstances, and most hypothetical contract approaches involve people who are idealised to a greater or lesser extent, such that no actual person has any reason to care about what his alleged ideal counterpart would do. I also believe that most previous contractarian approaches are excessively rationalistic, and as a result too inclined to try to deduce a social contract to which all rational persons would agree without regard to their existing societies and norms. Here I follow Hume, who has a much more realistic and limited view of rationality than most philosophers, rightly treating reason as “the slave of the passions” and concluding that morality is a matter of emotion, not reason (“it is not contrary to reason to prefer the destruction of the world to the scratching of my finger”). This is also true of the most plausible contractarian approach I have seen recently, that of Michael Moehler in his Minimal Morality: A Multilevel Social Contract Theory.6 Moehler argues for a social contract that

3 Gauthier 1986.

4 There is a large literature on Morals by Agreement, including at least two edited collections. See

Peter Vallentyne 1991, Gauthier and Sugden 1993. In addition Kraus 1994 devotes its final chapter to the book. Nicholas Southwood devotes the second chapter of Southwood 2010 to what he calls Hobbesian contractualism, which is what I am calling contractarianism, using Morals by Agreement as its main exemplar. There are also discussions devoted to the book in ethics and social philosophy and policy. In my opinion, however, the single best discussion of the book is in Gaus 2011, Chapter 2. 5 See Dworkin 1989. See also Morris 1998, p. 7, n. 6 and pp. 125–126. 6 Moehler 2018.

A contractarian approach

53

provides everyone with a guaranteed subsistence income and otherwise permits bargaining based on pure threat advantage (the Nash Bargaining Solution), an outcome he calls the Stabilized Nash Bargaining Solution. His theory is complex and much more compelling than that of Gauthier, but ultimately suffers from the same difficulties—it assumes that a hypothetical bargaining solution that is acceptable to all is both possible and necessary. I consider this highly implausible. We need to instead accept, and embrace, the fact that there will be many different workable moralities, and accordingly different societies that pass the test of being mutually beneficial for people with differing preferences. Those different societies will then need to find a modus vivendi, a way of getting along without constantly trying to impose their differ­ ing moralities on each other.7 My hope is that once we reject moral realism, we will realise that trying to impose our differing moralities and conceptions of just­ ice on each other is a highly negative-sum game, which will lose its appeal. We will learn to simply accept that we do one thing here, and others do something else there, and neither of us is right or wrong, just different. The fundamental idea will be one of Live and Let Live, and disputes will be resolved by the rule: when in Rome do as the Romans do, or some reasonable variant of that rule. My approach is very similar to that advocated by Russell Blackford in his recent compelling article8 on living and speaking in a world without objective morality: To be clear and consistent, there is no objective moral demand that we act in any particular way. If, however, we understand morality as a form of social technology, we find ourselves examining current moral systems and norms with a certain critical detachment. Once we do so, we are less likely to imagine that everybody, deep down, really accepts the same standards, or that the local ones are correct and immutable. With a more detached under­ standing, we may see obvious possibilities for change. There are then ques­ tions as to how we can help to produce it. There are also problems with Gauthier’s specific theory, of which two are most prominent. First he adopts a theory of rationality known as “constrained maxi­ misation” that is different from standard “rational choice theory” in ways that many find controversial. And second, although Gauthier argues that people in his choice situation would agree to a fair social contract but they would not agree to an unfair contract, he adopts for this purpose a novel version of Locke’s wellknown “Proviso” on property acquisition, and uses this to argue that rational

7 For an approach to political philosophy that embraces modus vivendi in ways similar to mine, see Gray 2000. Our ultimate conclusions differ because I believe Gray insufficiently considers the possibilities of federalism, which I discuss in Chapter 10. 8 Blackford 2019, p. 70. This essay is part of a terrific edited collection (Garner and Joyce 2019) on the question of abolishing morality, all of which is worth reading and considering carefully.

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A contractarian approach

people would dispose themselves not to feel bound by bargains that start from unfair starting points. Many have concluded that this argument fails. Although I do not agree with all of the criticisms of Gauthier, I will not be adopting his approach here. My goal is not to vindicate morality, having only just demolished it in the preceding chapter. Rather, my goal is to replace it with a theory of justice based on mutual advantage. As Kurt Baier said, “being moral is following rules designed to overrule self-interest whenever it is in the interest of everyone alike that everyone should set aside his interest.”9 Consistent with my argument in Chapter 2, I think we can refer to the rules and principles that are generated by this argument as “just,” and violations of those rules and principles as “unjust,” as long as we make clear when pressed that by “just” we only mean “in accordance with justified and agreed rules,” and by “unjust” we only mean “against the justified and agreed rules.” The basic idea of law as the result of mutually beneficial agreement that I will be following is superbly summarised by Jan Paulsson:10 I want freedom for me, and law for the others. As any child must learn, that reformulation will not work. We assuredly do not want all individuals to be little sovereigns. We are willing to give up some of our freedom. Indeed we insist on a bargain: we accept that criminal laws apply to us so that we can be protected by those same laws; we accept that we have to pay for the conse­ quences of our reckless behaviour so that we can live in greater tranquillity because that rule has the consequence that our fellow citizens will tend to behave prudently; and we accept that we are held to a bad bargain because if our contracts are not binding we will be stuck in the poverty of a primitive economic system where every transaction is instant—cash and carry—and wealth cannot be created by shared enterprise, by investment in reliance on long-term commitments, or by the use of capital from willing lenders. In this respect, the contractarianism I will be advocating is much closer to that advo­ cated by the Nobel Prize-winning economist James Buchanan11 and by the British economist Robert Sugden.12 One critical difference between their project and that of Gauthier is that they do not attempt to show that the results they generate will meet any independent test of moral acceptability. Sugden is especially clear on this: In the final pages of ERCW, I express my own conviction that a coherent conception of morality does not require a neutral standpoint. That is still my conviction. I recognise the meaningfulness of asking what would be best for

9 Baier 1959, p. 314. 10 Paulsson 2013, p. 2. 11 See especially Buchanan 1977, but there are many closely related works, especially his book co-authored with Gordon Tullock (Buchanan and Tullock 1962). 12 Sugden 2005, 2018.

A contractarian approach

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the world, as seen from the viewpoint of an impartially benevolent observer; but I do not see what the answer to that question tells any of us what he or she ought to do … I share Hume’s sense that, when we try to explain how people come to have whatever moral beliefs they do, we find that the best available explanations do not require hypotheses about objective reasons or moral truth. Our moral beliefs are not (as our sense perceptions are) imperfect tools for inquiring into a reality that exists beyond our perceptions. If we are to think ethically, we have to find a way of asking what we ought to do that does not trade on the illusion that there are sources of moral authority outside our own sentiments and perceptions.13 I think Gauthier goes off track by trying to show that his morality is impartial, and that his contracting parties will not agree to any agreement that is “unfair.” Since we have no obligation to be “impartial” or “fair” in any sense that is inde­ pendent of the results of the theory itself, requiring this would not only be inconsistent with the results of Chapter 2 but would generate confusion, as it would imply that intuitions of partiality or unfairness could override a reasoned argument that a given rule is or is not mutually beneficial. Indeed, given that these intuitions are themselves the result of cultural and biological evolution, using them to ratify the result of that process is useless. My approach is in much the same spirit as that advocated by Ryan Muldoon in his recent book Social Contract Theory for a Diverse World: Beyond Tolerance.14 Much of this book is a critique of John Rawls’s theory of political liberalism, a theory I find wholly implausible in any event and of which Mul­ doon provides a decisive refutation. But he also critiques the whole process of trying to deduce rules of justice by philosophical methods, and instead endorses relying on social norms and Millian “experiments in living.” The following para­ graph summarises his approach: The three key components of this view should be seen as outlining an itera­ tive procedure. We first attempt to assess our most robustly supported moral beliefs. Once we agree on what we view as simply unquestionable, we move on to what we can negotiate about. This negotiation, constrained by our previous step, determines an allocation of rights that we can all endorse. Finally, we find the implications of these rights by actually living with them and attempting small-scale experiments in living. As we gather more infor­ mation about how accurate our assessments were of our support for our moral beliefs, and how well we did in determining a particular rights alloca­ tion, we can decide to go back and refine our social contract with our new information. Each stage of the process is designed to ensure that no one is knowingly made worse off than they were before. If some change is found

13 Sugden 2005, p. 225. 14 Muldoon 2016.

56

A contractarian approach not to work, we simply try again. Every change that we as a society make is a refinement of how we think we ought to live with each other. Rather than stick with a social contract that was designed for a different era, or plunge in an entirely new direction, we should experiment. We can find what works, and abandon what does not.15

My approach is very similar. Just how it differs will appear in the rest of this book, but to summarise, I think there is very little that will be settled at the first stage of this process for everyone: perhaps only a few absolutes like don’t kill, torture or otherwise hurt people, don’t enslave them, and don’t take their stuff. For many societies there may be other norms that they consider unquestionable, but they will need to accept that others reject these norms and there is no reasonable basis for imposing them, even if they are regarded as sacrosanct in our own society. I also think the above passage does not give sufficient weight to the import­ ance of stability, and I would suggest that social norms, especially rules of just­ ice, should change less frequently than Muldoon’s summary might indicate. As David Schmidtz emphasises, “if we are to live in peace, we need a high level of consensus on a long and mostly inarticulate list of ‘dos’ and ‘don’ts’ that consti­ tute the ordinary sense of justice with which we navigate in our social world.”16 Those norms cannot change too frequently if we are to learn and internalise them. Rather, I would emphasise more that different groups will have different rules, and to a much greater extent than at present, people who prefer living under different rules should consider moving to where the rules are more to their liking, rather than trying to impose their new preferences on their fellows. Again, an analogy with sports is helpful. The game of baseball has many rules, most of which evolved over time by a process of trial and error to arrive at where we are today. An ongoing controversy exists over the Designated Hitter Rule, which is an exception to the general rule that the same players must play both offence and defence in a game, with substitutions allowed; but a player once removed cannot return. Under this rule, one player, the Designated Hitter, is per­ mitted to hit but not play defence, with another player, normally the pitcher, not hitting. Supporters of the rule say it introduces more offence, since most pitchers are weak hitters, and allows players too old or infirm to play defence to have longer careers. Opponents say it reduces strategy in the game and deprives it of its purity. Both have points, and there is no reasonable way to resolve the dispute. In the Major Leagues, we have settled on the solution that one league uses the Designated Hitter Rule and the other does not, and when teams from different leagues play each other, the rules of the home team apply. This is a good workable solution. We should view justice in exactly the same way. Sometimes we will all settle on common rules, but sometimes we will just agree to disagree and play by different

15 Ibid., p. 6. 16 Schmidtz 2006, p. 6.

A contractarian approach

57

rules, and agree a rule to deal with cases involving persons from different jurisdic­ tions, such as “when in Rome do as the Romans do.” My approach then starts with actual social norms as they have evolved over time. As James Buchanan says, “we start from here, and not from someplace else.”17 But that does not mean we end up there. We must query our exist­ ing morality to see if it really is mutually advantageous. If there is a significant group of people for whom our existing morality is not advanta­ geous, then it is not justified to them. We then must ask whether, and if so how, our existing morality could be modified to make it mutually advanta­ geous to those who do not have sufficient reason to internalise and follow our existing morality. This may not always be possible, and when it isn’t we may need to go our separate ways and find a modus vivendi for cases where we cannot avoid interacting. Why am I entitled to call this approach a moral one? Here I will set forth what I believe is the proper definition of morality, which I believe my approach satisfies. I suggest that a person is moral if and to the extent that he follows the rules and principles that he demands that others follow. This is an essentially Kantian notion, based especially on the first version of the categorical imperative in Kant’s Ground­ work of the Metaphysics of Morals, and requires that we not make an exception for ourselves to the rules we ask others to follow.18 This idea is at the core of any plaus­ ible moral theory, although most theorists go on to add other requirements as well. Most of the additional requirements they add are simply attempts by the particular theorist to impose on others his own preferences, and they fail because they fail to persuade others who do not share those preferences. While my own approach will not follow Gauthier in general, one feature of his approach will be important in what follows. Gauthier emphasises throughout Morals by Agreement the importance of game theoretical analysis, and especially the Prisoner’s Dilemma. The Prisoner’s Dilemma is explained extensively in many political theory texts as well as standard game theory texts: for our pur­ poses it will suffice to say that it is one of several types of games where the choice that is rational for each player leads to an outcome that is worse for all players than if they had each made the “irrational” choice. This pattern of “rational for each, but irrational for all” is also illustrated by Robert Frank’s example of antlers on deer. For any single male deer, it is better to have longer antlers because it gives him an advantage in fighting other male deer for access to females. But longer antlers make it harder to escape predators because they become entangled in trees and underbrush—male deer as a whole would all be

17 Buchanan 1977, p. 78. 18 I believe that the statement in the text is the only extent to which we should accept Kant’s theory of morality. In particular we should reject his requirement of universalisability, which is subject to obvious and clear objections. There have been attempts to accommodate these objections, but they do not succeed. I do not intend to spend time examining this issue here.

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better off if they could all agree to have smaller antlers.19 Garrett Hardin’s “Tra­ gedy of the Commons” has a similar argument.20 The pattern we will see repeatedly is this: a given rule might restrict my free­ dom to some extent, but I benefit from the restriction of others’ freedom by much more than I lose from having my own freedom restricted. For example, while the law against murder restricts me from killing others, it also restricts others from killing me, and the freedom I gain from not being murdered is far more valuable than the freedom to murder. A theory of justice as mutual advan­ tage will frequently if not always take this form: essentially it will force everyone to make the cooperative move in a Prisoner’s Dilemma, with the result that we are all better off than if we were free to make the non-cooperative move. So far, quite orthodox: government as the solution to Prisoner’s Dilemmas is a staple of recent political theory. For example, Garrett Hardin postulated as his solution to the Tragedy of the Commons “mutual coercion, mutually agreed upon,” and the refrain has been repeated constantly ever since. But while this argument is indeed the main argument for state-based solutions where they are valid, its applicability is much exaggerated. Recent scholarship shows that in many cases people can and do solve problems with similar structures without the state, through the mechanism of mutually advantageous social norms.21 The difficulty is that once the state comes into the picture, the opposite tendency of rent-seeking also appears, where parties use government to impose costs on each other in an effort to use government to seize value created by others, as opposed to creating it themselves.22 As Frederic Bastiat said, “The State is the great fiction by which everyone endeavours to live at the expense of everyone else.”23 In deciding when, and to what extent, government and law are actually mutually advantageous, we will have to find the balance between these two ten­ dencies. As I show in the final chapters of this book, considerations of mutual benefit sometimes justify government action, but most government action is not mutually beneficial, but rather the opposite. Finally, I should make clear that the theory I advocate is based on actual agreement, not hypothetical agreement. Although such agreements must be mutually beneficial to be binding, it is only when there are such agreements that anyone is bound by them. I am not arguing that we are obligated to do any­ thing because it would be mutually beneficial for us to agree to it, if we have not in fact agreed to it. It would be totally unacceptable for any of us to have an obligation merely because it could be shown that we would or should have agreed to it: we could never know what our obligations were in that event. Our obligations can only arise from an actual agreement that is mutually

19 20 21 22 23

See Frank 2012.

Hardin 1968, p. 1247.

See, e.g., Ostrom 1991, Ellickson 1994.

See, e.g., Olson 1984, Tullock 2005.

Bastiat 1849.

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beneficial. However, that agreement can arise from convention, not necessarily from contract, as Hume clearly saw. At the same time, once we internalise some social norms, this will undoubt­ edly lead us in many cases to be motivated to expand those norms to cover other situations that seem similar to us. As Joseph Heath observes: We think of the moral person as the one who assigns deliberative priority to his principles, relative to his desires. In the absence of culturally transmitted principles to govern an interaction, the moral person can therefore continue to exhibit this disposition by acting in a way that exhibits an openness to normative regulation—by refraining from acting in ways that the other person could not accept as a basis for a shared norm. Thus the normative control system imposes its own very weak form of constraint on conduct, even in the absence of norms.24 But while this fact will undoubtedly motivate many people to expand their mor­ ality beyond existing norms, and may generate pressure to create new norms, it would be wrong to treat the output of such a process as an obligation until it has become accepted and widely practised in a particular society. Unless that has taken place, a person cannot be said to be benefiting from the compliance of others with the norm, and in the absence of such compliance and mutual bene­ fit, there can be no basis for treating it as an obligation as opposed to a good idea. Accordingly, while we should praise people who become “norm entrepre­ neurs” by pointing out practices we are not now following but would do well to adopt, it would be out of place to blame those who do not follow social norms that have not yet become accepted and practised in the agent’s community. It is clear that which social norms we end up with will frequently be the result of historical processes that are contingent and could well have turned out differently.25 There is no suggestion that particular social norms are inevitable or even highly probable. This should be obvious by considering the simple example of driving on the left versus driving on the right: it is arbitrary which side everyone drives on, but vital that we all drive on the same side. Language is of course the same: there is no reason why “dog” could not have meant what we mean by “cat” and vice-versa. Most conventions are not completely arbitrary in this way: it will frequently be the case that the conventions we have actually settled on will be better than many, perhaps most, alternatives that could have arisen. We have some reason to hope that better conventions will replace worse

24 Heath 2011, p. 277. 25 Indeed, the game theory literature is full of illustrations of how small differences in initial con­ ditions can lead to large differences in the norms you end up with. For a good illustration of how this works, see Gaus 2011, pp. 393–400. This is an instance of the ubiquitous phenom­ enon of path dependency, on which see Arthur 1994.

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ones over time, especially where participants have incentives to change conven­ tions. For example, there is good evidence that property conventions evolved over time to become more efficient.26 Partly for this reason, and partly because people have different values and preferences, some of which are culturally variable and therefore likely to differ among differing groups, there is no suggestion here that contractarianism leads to one or even a few unique results. We should expect some patterns: norms against harming at least in-group members are likely to be nearly universal, for example. But we should not expect this method to yield unique results that apply to everyone: that fact is a feature, not a bug, of my approach. Indeed, I think it is a defect of many modern theories of justice, notably that of John Rawls, that they prescribe quite restrictive recommendations for justice that few if any societies could ever be expected to adopt voluntarily. I believe that there are a great many acceptable approaches to justice, and indeed one of my main recommendations at the end is that we embrace this result and endorse the proliferation of many different states, societies and approaches to law and justice, with people given a free choice of which of the many acceptable approaches they wish to embrace. In short, let a thousand flowers bloom.

Convention and social norms We saw in Chapter 1 that Hume believed that justice arose by convention, and indeed was willing to characterise the process by which justice arises as “natural law” in at least one sense of that term. There is now a large literature on social norms, under which Hume’s account stands up pretty well in general, although of course in specifics we have gone beyond it.27 But in many ways the account of Adam Smith in The Theory of Moral Sentiments is even better and has also stood the test of time, and I will focus on Smith’s account as recently updated by Robert Sugden.28 The key idea is that humans evolved to care deeply what other people thought of them, and satisfying their behavioural expectations was critical to their opinion.29 Conventions and social norms generate expectations about how we will behave, and when those expectations are not met it is likely to generate resentment, at least where others’ interests are affected. To become a successful member of society, particularly in small-scale societies that were characteristic of the Pleistocene Epoch when humans evolved, people needed to anticipate and even internalise the expected reaction that others would have to their actions, thereby generating both shame and guilt. Sugden concludes that a behavioural

26 See Demsetz 1967, Ellickson 1994.

27 Especially useful are Lewis 1969, Ullman-Margalit 1977, Richerson and Boyd 2005, Sugden

2005, Bicchieri 2006. 28 Sugden 2002. 29 Sugden 1998, 2004.

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rule R is likely to acquire moral force within a population when three things are true: (1) almost everyone follows R, (2) for any individual who follows R, it is in his interest that persons with whom he interacts also follow R and (3) if almost everyone else with whom an individual interacts follows R, it is in that individual’s interest to follow R too. It is important to this account that social morality consists largely if not entirely of social rules. This is the only way it could possibly work: we need rules, and relatively simple ones at that, in order to be able to see whether people are complying with them and to sanction them if they are not. This is especially clear from the work of Gerald Gaus, who summarises a large volume of recent research in moral psychology to conclude that humans are rulefollowing moralistic punishers, who internalise social norms where others are also following those norms and punish those who deviate from those rules.30 Although these rules are adopted because they are mutually advantageous, it is the rules themselves that people internalise and follow, and this is unavoidable. A consequentialist morality at the ground level would be totally unenforceable and therefore unworkable. The importance of having reasonably clear and simple social rules is aptly illustrated by the following example: The first thing to appreciate, then, is that social norms and customs are effective only if they are readily understood by nearly everyone. Complex rules cannot coordinate. A rule or norm such as “give an old woman your seat on the bus if you are young and agile” may leave room for interpret­ ation, but it is more generally effective than one which states “if you are younger than 45 and in reasonably good health as determined by a licensed physician on the basis of an exam administered no more than fourteen months earlier, and if a woman stands before you no more than 1 meter from your seat with no alternative seating apparent, relinquish your seat if she gives evidence of being older than 55, walks with difficulty, or is carry­ ing more than 15 kilograms of groceries; otherwise, relinquish your seat only if requested to do so, and then only if her request is in the form of …” But simplicity is required if the general intent of the norm is to be effectively communicated and universally accepted.31 In addition, it is clear from the work of Boyd and Richerson and many others that human culture, rather than genetic evolution, is the key driver of the human propensity to internalise and follow social norms. The fact that humans are programmed to imitate others, especially those they consider to be success­ ful, is a prime reason why we manage to internalise mutually beneficial norms, as of course is our ability to use language to describe, reinforce and systematise

30 Gaus 2011, Chapter 3.

31 Filippov, Ordeshook and Shvetsova 2004, p. 158.

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these norms. Also critical to this process is the practice of “altruistic punish­ ment”; that is, the tendency to punish norm violations even when doing so is costly to the punisher.32 These processes, taken together, have combined to make humans into a highly social, indeed ultra-social being, for whom following rules is as important, indeed probably more important, a feature as his rational­ ity, as the quote from Hayek in Chapter 1 reflects. Joseph Heath has summed up the implications of this research well: Apart from the high levels of cooperation one finds among humans, there are three other features that set us apart as a species: superior intelligence, use of a propositionally differentiated language to communicate, and cul­ ture-dependence. Given the slight biological differences between us and our closest primate relatives, it is very unlikely that these differentia are unre­ lated. They are most likely to be part of a single complex, at least all facili­ tated by a single adaptation … The analysis presented here suggests that culture-dependence is the more fundamental. Once culture dependence is established, in the form of a norm-conformative disposition (imitative con­ formity coupled with moralistic punishment), one can then explain the emergence of propositionally differentiated speech … which can in turn be used to explain the origins of mental content, intentional states, and finally the intentional planning system that is at the root of our superior practical intelligence. Finally, it is much easier to see how altruism (and ultimately, cooperation) could persist as a culturally transmitted pattern of behav­ iour … Thus norm conformity appears to be the key that opens all the locks. We are not just intelligent creatures who like following the rules; rather, following the rules is what makes us the intelligent creatures we are.33 Indeed, Heath argues that rule following is so basic to human life and human reasoning generally that philosophers who question the rationality of following rules get the issue backwards. Rule following is so basic to human nature that it is the idea of rational choice theory with its emphasis on individual utility maxi­ misation that stands in need of explanation. Heath accordingly concludes that a better model will recognise that most people attach considerable weight to avoiding actions that breach social norms, and that any account of human motivation must consider that fact, along with the motivations that derive from their valuing the consequences of their actions. But Heath also concludes that very few people give such considerations overriding or “lexical” priority over their other desires, and indeed himself considers that to do so, as some Kantians recommend, would be fanatical. I fully concur.

32 See, e.g., Bowles and Gintis 2013. 33 Heath 2011, pp. 200–201. This entire book is well worth studying for the excellence of its clarity as well as the cogency of its arguments.

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One objection that is sometimes made to conventional accounts of morality such as mine is that research in moral psychology shows that even fairly young children distinguish purely conventional rules from moral rules, and conclude that the former can be waived or varied but not the latter.34 Although the research is accurate, it does not warrant the conclusion that morality is not con­ ventional. More detailed examination of results such as these reveals that the real distinction is between rules that have a strong emotional valence (normally because they are linked with sympathy for those who are harmed by violations of the rules) and those without such emotional valence.35 Similar responses can be made to the argument that a conventional account cannot distinguish moral­ ity from etiquette. As Joseph Heath points out, “we use the term morality to refer to the set of norms that we regard as particularly important.”36 Although the above process is indeed likely to generate norms that are socially beneficial, it is far from certain that all norms generated by this process will be beneficial for everyone, or as beneficial as some alternative social norm that has not evolved. Thus, Sugden concludes that humans indeed follow a principle he terms the Principle of Cooperation, which is to conform to social norms that have the above characteristics if almost everyone else does too. This, he stresses, is descriptive, not normative—humans will indeed feel a moral obligation in these circumstances, but he is not necessarily recommending that they do so.37 And indeed he is right to withhold that recommendation. There are a great many dysfunctional social norms that we would do well to try to undermine, even though it may be in almost every member of a group’s interest to conform to the norm if others do as well. I will simply give two examples. One is the norm of challenging and accepting duels, a custom that existed in many countries until less than two hundred years ago.38 There were powerful social norms behind this practice: a man who was challenged to a duel and refused was likely to be shunned as a coward, and few dared resist despite its obvious dangers. It required governments outlawing duelling and enforcing the law to make it possible for respectable men to decline when challenged. The other example is female genital cutting, a practice that is still expected in some communities, where girls who are not cut may find it impossible to get husbands.39 I hope no reader will dissent from my view that both practices are

34 35 36 37 38

See, e.g., Turiel, Killen and Helwig 1987.

See Nichols 2004, p. 22, Sugden 2018, pp. 257–259.

Heath 2011, p. 266.

Sugden 2005, Chapters 8 and 9.

Perhaps most famously, Aaron Burr, the sitting US Vice President, killed Alexander Hamil­ ton, the first US Treasury Secretary, in a duel in 1804. 39 See Bicchieri 2017. As Bicchieri notes, there are many parallels with the barbaric Chinese practice of binding women’s feet, thereby producing crippling lack of mobility, a practice only ended in the last hundred years.

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to be eliminated if possible, and certainly not encouraged, as an uncritical praise of whatever has emerged as a social norm might suggest. Sugden summarises his position as follows: One way of summarising these properties is to say that the morality expressed in the principle of cooperation is constructed from where we stand. Each of us is required to take some account of how the world looks from the viewpoint of each other person, as well as of how it looks from his own; but we are not required to think about what is good in some universal sense. Nor are we required to think about how the world would be if we all followed conventions other than the ones we actually follow. Morality is construed in terms of mutual advantage, but the reference point from which advantage is measured is the status quo.40 Given the strong evidence that humans are naturally programmed by evolution to follow useful social norms (and indeed some we would do better to elimin­ ate), we should indeed endorse Sugden’s Principle of Cooperation, but we need to modify it to not require that we conform to dysfunctional norms. I would suggest that no one should feel obligated to follow a norm if he would be better off if that norm did not exist at all, or if there are others with whom he sympathises that would be better off without the norm. I do not believe, however, that we should excuse compliance with a social norm that is beneficial merely on the ground that there is a different social norm that one would prefer to the one actually practised. That is because there is almost always an alternative to any existing social norm that would be better for someone or another; if we excused compliance with beneficial social norms simply because the person in question would prefer a different norm, we would undermine almost all social norms, with potentially disastrous results. We would be making the perfect enemy of the good in a most unfortunate way. If an exist­ ing norm is mutually beneficial we should comply with it, while of course being free to urge people to shift to a different, hopefully even more beneficial norm. Of course, this does not mean that we must remain silent and uncritical about the norms and practices of our society. We can and should analyse our existing norms critically with a view to determining whether they really are mutually advantageous, and also with a view to proposing for adoption mutually benefi­ cial social norms that are not being practised but that it would be good to adopt. We should also be alert for ways to modify our norms and conventions so as to make them even more beneficial, as well as to make them more attract­ ive to comply with by, among other things, making sure their benefits are spread more widely where possible so that all will see them as mutually benefi­ cial and be motivated to comply with them.

40 Sugden 2005, p. 224.

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65

We will discuss in Chapter 6 a principle known as the Principle of Fairness, which generally requires that we do our part in socially beneficial schemes whose benefits outweigh their costs to us. In my view this principle is sound, but it is in fact the Principle of Cooperation with the modification suggested above. I will therefore in the rest of this book tentatively adopt the Principle of Cooperation, and postpone further consideration of it to Chapter 6. By so doing I hope to avoid the endless disputes over what the term “fairness” means, disputes that I consider a waste of time because I think most people mean by “fair” what they agree with, and by “unfair” what they disagree with. I hope to avoid this trap in this book.

Why not consequentialism? In this context it is worth considering why I reject utilitarianism or some other form of consequentialism. The suggestion is not silly: Joshua Greene embraces utilitarianism despite thoroughly refuting moral realism, especially in his book Moral Tribes. A number of other thinkers who reject realism also argue for utilitarianism.41 They do so not on the basis that it is the one true morality, but rather based on the idea that it is a reasonable way to balance the needs and values of everyone and is therefore the best hope for an agreed morality. There are of course a lot of familiar objections to utilitarianism in the form of imaginary cases where it would lead to results we would all intuitively reject. I am not much moved by these arguments, since I reject the idea that we should pay attention to these intuitions. Greene does a good job of responding to most of these objections, as do Singer and Lazari-Radek.42 The main reason we should reject utilitarianism and other forms of conse­ quentialism lies rather in John Rawls’s remark that it “does not take seriously the distinction between persons.”43 There is no basis for thinking that we have a duty to throw in our lot with everyone else and sacrifice our own interests for the sake of the greater good. Even if we could be confident that everyone else would also do this, and it is far from clear how we could ever have that confi­ dence, many of us would think we would not be net winners from such a requirement, and could therefore reject it as a social morality that is supposed to benefit everyone. Consequentialism should be rejected because it allows harms to some persons in order to produce greater good to others, which I and many other people will find unacceptable. Instead, we must seek a morality based on rights and rules that are mutually beneficial to everyone or nearly everyone, if we are to have hope of an agreed morality.

41 Especially Hare 1982.

42 Greene 2014, Lazari-Radek and Singer 2016.

43 Rawls 1971, p. 27.

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Robert Nozick summed up what is objectionable about utilitarianism as well as anyone:44 Why not, similarly, hold that some persons have to bear some costs that bene­ fit other persons more, for the sake of the overall social good? But there is no social entity with a good that undergoes some sacrifice for its own good. There are only individual people, different individual people, with their own individ­ ual 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. (Inten­ tionally?) To use a person in this way does not sufficiently respect and take account of that he is a separate person, and that his is the only life he has. This is related to but distinct from Bernard Williams’s argument that utilitarian­ ism does not sufficiently allow for us to have our own projects and close ties to particular people.45 This can be partially resolved by remembering that most sensible utilitarians limit their utilitarianism to public decisions, primarily gov­ ernmental ones.46 Governments do not have their own projects or affections, and the persons who run them should be precluded from giving priority to their own projects and affections when they are acting as government officials. But it still has a role to play. If I am not required to give equal weight to everyone in my own decision-making, I am also not required to vote for or otherwise sup­ port a government that does so. This is not to deny that governments have a duty to be impartial in certain ways when they carry out functions that we have decided to do together. The issue is whether we have a duty to have gov­ ernment take on a function to begin with. The argument for utilitarianism in many ways parallels the arguments that some egalitarians make to the effect that governments are required to promote equality, or promote the welfare of everyone equally. Indeed, on some views utilitarianism is based on a type of equality, since it requires that we achieve maximum welfare (or something similar) with each person’s welfare counting equally. In effect, the argument is that because government makes laws, we are all in this together whether we like it or not. I have responded to such argu­ ments in my previous work,47 but it would be helpful to summarise the most important of those arguments here. Ronald Dworkin,48 for example, argues that the government’s duty to treat all of its citizens with equal respect is based on the fact that it sets the rules of

44 Nozick 1974, pp. 32–33.

45 See Williams 1981. For a nearly libertarian approach that builds on this insight of Williams,

see Lomasky 1987. 46 See Goodin 2010. 47 See O’Brian 2010, from which the discussion in the next few pages is drawn. 48 See Dworkin 2000, p. 4.

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property, contract, tort, etc., which permit Tiger Woods to earn much more money than most people. But this argument proves too much. It is like saying that the Royal and Ancient Golf Club of St Andrews (R&A) has created the dif­ ference between Tiger Woods’s and my golfing abilities because it makes the rules of golf. Such an argument would require as a premise that the R&A owes me a duty to set the rules of golf so that Tiger and I will score equally well. That is nonsense. Broadly speaking, the R&A should set the rules of golf so as to make golf as good a game as possible, and let the chips fall where they may. If it does so, it is treating Tiger and me with equal concern and respect, by facilitating an activity we both find rewarding, albeit much more so for Tiger than me. Unless those rules were arbitrarily (i.e. for no good reason) designed to favour Tiger at my expense, I cannot blame the R&A for the fact that Tiger is a much better golfer than I am. Similar considerations apply to the laws of contract, property, etc. As long as those laws are justified by independent considerations (on my approach as long as they are mutually beneficial), and are not artificially tailored to harm me or to benefit Tiger, I cannot fairly blame the law of property or tort for the fact that Tiger earns so much more than me. If those laws are justified I have no com­ plaint; if they are not justified they should be changed. Dworkin’s argument also overstates the role of government in deciding who gets what, at least in a predominantly capitalist society. It is the principal virtue of a capitalist economy that it is not the government, or any other single entity, that decides how much each citizen earns. Rather, that decision is the result of millions of decisions made by individuals, who by and large are not concerned with the dis­ tributional effect of their decisions.49 The government did not decide that Tiger should earn more than one thousand times as much as me; no one made that deci­ sion. That result flows from a system that allows us both to sell the right to watch us play golf, a right that is worthless for me but very valuable for him. The issue is whether allowing people that right is justified; if it is, the fact that it has unequal results for the two of us is irrelevant. Unless the government has an independent duty to equalise my resources and those of Tiger Woods, it cannot be saddled with the responsibility for the inequality between us simply because it did not prevent it. Certainly it is circular in the extreme to argue that the fact that the government could equalise my income and that of Tiger entails that it is the government that decides how much we earn, respectively. At least in a democracy, government is really nothing more than the sum total of each of us.50 Most of us believe we are entitled to live our own lives and devote

49 See Hayek 2012.

50 This is a moral point, not an ontological one. My argument is not that governments or soci­ eties do not exist, but rather that they have no duties or rights that do not derive from the rights and duties of the individuals that compose them. This “moral individualism” is implicit in virtually all liberal political thought, and I will not defend it further here. See generally Buchanan 2004, pp. 156–158, Huemer 2012.

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ourselves primarily to our own happiness and that of those close to us, without giving equal weight to the interests of every other person in the world, or in our own society. It is difficult to argue that when we organise a state, it has substantive rights or duties that the persons organising it did not have. Certainly Dworkin does not present an argument that the state has a duty to create economic equality that the individual citizens who constitute the state do not have. Thomas Nagel does make such an argument, but it is quite weak. Nagel’s argument is that while I may have the right to favour my own interests over those of someone else who has less, because after all each of us has our own life to lead, the government does not have a life of its own to lead and may not invoke this excuse.51 But if we remember that the government is not a benevolent despot that parcels out everything in life, but rather just you and me doing things collectively that we cannot do as well separately, this argu­ ment collapses. If I do not have a duty to do something directly, I do not have a duty to set up a government that has that duty. Or to put it another way, in a sense the government does have a life of its own—the lives of its citizens and taxpayers, who after all are the source of its funding and any rights it has. This does not require that we reject Nagel’s related suggestion that there should be a “moral division of labour,” in which the government carries out our duties to help others and therefore leaves us free as individuals to devote our attention to our own lives and projects (which may also of course include making the world a better place). That is an entirely sensible idea, although it is possibly subject to various offsetting considerations that cannot be discussed in depth here. The point is, though, that any duty the govern­ ment has to do that derives from our individual duties to help others and a decision to carry out those duties collectively, not from any duties the gov­ ernment itself has. In a well-known paper Nagel seems to argue that the fact that membership in the state is not generally voluntary is a justification for imposing egalitarian obli­ gations on those subject to it. In “The Problem of Global Justice,”52 he argues that while we may have duties to respond to the urgent needs of those in other countries, it is only with respect to our fellow countrymen that we owe duties of social justice based on equality: A sovereign state is not just a co-operative enterprise for mutual advantage. The social rules determining its basic structure are coercively imposed … it is this complex fact … that creates the special presumption against arbitrary inequalities in our treatment by the system.53

51 Nagel 1995, p. 101.

52 Nagel 2005. A similar argument is made by Blake 2001.

53 Nagel 2005, pp. 128–129.

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54

Having said this, Nagel at no point justifies it. From a standpoint of mutual advantage there is no reason to accept it. First, any imposition of a basic struc­ ture is itself in need of justification. There are two possibilities: either the rules that are imposed are justified, or they are not. If they are justified, it is difficult to see why there is a problem imposing them, or why doing so obligates us to pool our talents and other resources in ways we would prefer not to. If they are not justified, it is impossible to see how this allegedly obligatory pooling cures the lack of justification. The argument here seems to involve an equivocation in its use of the term “arbitrary.” Of course, the government should not impose obligations on us that are arbitrary, in the sense of not justified. That is completely different from saying it is affirmatively obligated to reduce or eliminate “morally arbitrary” dif­ ferences between people. Even if it is morally arbitrary that people are willing to pay money to see Tiger Woods play golf but not to see me play, there is noth­ ing arbitrary about a law that says Tiger is free to set such conditions on playing golf as he wishes. Such a law is fully justified by the need to preserve Tiger’s freedom, and because it is so justified the resulting distribution of wealth is not arbitrary. Indeed, the requirement that we pool our talents and resources so as to elim­ inate arbitrary inequalities seems to be completely unconnected with the reasons why society imposes legal rules on its members, and it is hard to see how one could result from the other. Suppose Tiger and I are forced to live together and obey the same rules against our wills. Why does this obligate Tiger to share his talents with me? Tiger is every bit as involuntarily thrust into this arrangement as I am. How, by coercing him in one way, do we thereby justify coercing him in others too? Andrea Sangiovanni has offered a slightly different argument, claiming that it is the fact that others cooperate in providing the background institutions and public goods necessary for a good life that gives rise to egalitarian duties towards them.55 He argues that this generates duties of reciprocity to those others. But nowhere does he show that such duties of reciprocity, assuming they exist at all, actually ground an obligation to share in an egalitarian fashion, or to promote the impartial good. Assuming for the moment that we allow that the state actually does provide me with benefits (a proposition many of an anarchist or libertarian bent might want to dispute), many of the duties the law

54 The argument is discussed at greater length in Nagel’s book with Liam Murphy, Nagel and Murphy 2002. At no point, however, does this book explain why the fact that the govern­ ment sets the rules grounds a requirement of equal consideration. At most, it justifies the proposition, which I would endorse, that one cannot analyse the justice of taxes without coupling it with an analysis of who benefits from the governmental activities that taxes fund. This was advocated forcefully by, among others, Knut Wicksell and James Buchanan. See Wicksell 1958 and Buchanan 1999. For a cogent refutation of Murphy and Nagel’s argu­ ments, see Mack 2018, pp. 130–137. 55 Sangiovanni 2007.

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imposes are duties I would have anyway. This is straightforwardly true of obliga­ tions such as those not to murder, rape, etc. No one owes me compensation for depriving me of the liberty to rape, for example, even assuming for the moment that I might be a net loser from such a prohibition. To the extent that the law imposes obligations that I do not have anyway, those obligations themselves are in need of justification. If they are justified, again it is unclear that I am owed compensation for having to comply with them. Sangiovanni specifically mentions paying taxes and military service as gen­ erating obligations of reciprocity, but it is hard to see how that grounds any obligation of equality or of utility maximisation. If the laws imposing those taxes and that military service are justified, then I don’t owe anyone compensa­ tion for complying with them. It is possible that there are persons who are disadvantaged by laws that are justifi­ able overall, and that they are therefore owed compensation. For the most part I think it is not true of the common law rules of contract and tort, something I defend at length in Chapter 8. And in general if rules are not mutually beneficial, we should discard them, not keep them and compensate the losers. But even if true, it would only justify a requirement of compensation; it would not justify declaring everyone’s property and talents a common pool to be shared equally or to be used to promote the impartial good of all. The fact, assuming it is true, and I would contend it is false for the vast majority of things that governments do, that the services provided by govern­ ment are essential also does not justify a duty on those who benefit from those services to share one another’s fate, any more than the fact that two people both buy their food at Tesco does. At most, Sangiovanni’s argument might obligate me, via an obligation based on something like the Principle of Fairness,56 to pay my fair share of the cost of generating the benefits (if any) the state provides. Perhaps that cost might include the cost of compensating those who are not net beneficiaries of the state’s services for what they lose out. It is hard to see how it obligates me to make myself a common asset for the benefit of the community. Of course, it is right that if a body of law results in some persons having less than others, those laws must be justified. But that is true of all laws; to the extent they restrict freedom, all laws require justification. In Chapters 8 and 9 I will present my own theory, which is of course based on mutual benefit, but the argument here is valid whether or not you accept my theory or any other particular theory. Dworkin argues that government cannot say to one citizen: you must accept less so that others can have more. If that is all government has to say, he would be right. But there is almost always a lot more to say than that. If I ask the

56 See, e.g., Klosko 2004. This principle is discussed extensively in Chapter 6, where I support a modified version of it, which I call (following Sugden) the Principle of Cooperation.

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government, “Why do you allow Tiger Woods to earn so much more than me?” the answer will be something like this: Because Tiger earns what he does without harming you, based on the vol­ untary choices of millions of people who freely choose to pay to see him play golf, and the system of rules that allows this fairly balances his right to live his life as he sees fit with the right of everyone else to do the same, as well as promoting prosperity and other things that are generally desirable. This answer is of course contestable, and there are people who would contest it. But it is a perfectly responsive answer to my question, and it is the rightness or wrongness of that answer that determines whether there is any objection to the difference between our incomes. Even if it were true that the law artificially (i.e. without justification) had increased the differences between what Tiger earns and what I earn, that would not entail that I have an equal right to Tiger’s talents. Rather, it would entail that we should change the law so that it does not disadvantage me. Or, if there are compelling reasons not to change the law, perhaps I am entitled to be compensated for the disadvantage the law imposes on me. It would not mean that my talents and those of Tiger are sud­ denly collectively owned. More generally, it is a complete non sequitur to argue that, because how much Tiger will earn will vary depending upon what the law is, society therefore owns Tiger’s talents and abilities, and must compensate others for not having those talents, or the right to command their use. At most, this argument dem­ onstrates that in deciding what the rules of law should be, government should give appropriate weight both to Tiger’s interests and mine. That duty, if it exists, would not justify treating Tiger’s talents and mine as a common asset to be shared equally between us. I conclude that the fact that the government sets the rules of the game does not require the government to either force us into a utilitarian scheme in which “we are all in it together” with respect to our talents, earnings and activities, or to promote our equality. Rather, it is at most required to assure that the rules it makes are justified on the basis of mutual benefit. If they are, it can generally let the chips fall where they may. If they are not, it should change them to rules that are justified. It should not scramble up everything and then say we must parcel it all out equally or so as to promote overall utility. An alternative approach to utilitarianism is to adopt what is sometimes termed “threshold deontology,” which holds that deontological constraints only apply up to a threshold. An example of such a view would be one that proscribes killing one innocent person to save two lives, but not to save a million lives. I believe threshold deontology is subject to decisive objections, but cannot discuss that here.57 Even if

57 For a start, see Alexander 2000. For a defence of threshold deontology that has some initial plausibility, but ultimately fails because it hinges on a form of moral realism, see Zamir and Medina 2010.

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threshold deontology is implausible as a foundational theory of morality, as I believe, it can sometimes be a useful approach to adopt for particular socially derived rules, and nothing I say here should be read to rule out such an approach. Second, an acceptable theory to be reasonable must recognise that not all rights are, in Judith Thomson’s terms, maximally stringent. To use her example, although I have a right against you that you not kick me in the shin, if doing so will save several lives (indeed I would say even one life) most people would say you may do so.58 I would suggest that if you do so you must compensate me, and that with this proviso perhaps this exception is just a special instance of the preceding example (i.e. an exception allowing rights violations with compensa­ tion where necessary to secure large consequentialist gains is itself in everyone’s interest, at least ex ante). Thomson herself believes that at least some rights, such as the right not to be unjustly killed, are maximally stringent, but I am not sure of that. I am inclined to think it should be permissible to kill an innocent person to save at least a very large number of lives, although not everyone would agree.59 Utilitarianism and similar forms of consequentialism thus should be rejected because they total up costs and benefits in ways that do not ensure that each person benefits from the obligations that are placed on people. They allow obli­ gations to be placed on some in order to benefit others, and there is no reason why the persons on whom these obligations are placed have any reason to accept them. It is only when an obligation benefits everyone, or nearly everyone, that it can be justified under a theory of justice based on mutual benefit.

The wrong kind of reason One objection that is frequently made to theories of justice based on mutual advantage is that they do not get right the motivations or reasons for complying with our obligations. The idea behind this objection is that our obligations of justice are owed to other persons, not to ourselves. If our ultimate reason for endorsing justice is mutual advantage, the argument goes, we are really harming ourselves when we fail to comply. And if we are only harming ourselves, then it is really no one else’s business whether we are just or not. In his famous article “Freedom and Resentment,”60 Peter Strawson argues that we feel resentment, anger and other reactive attitudes to injustices both when we are the victims and even when we are not, because acts of injustice are not merely unwise but also violations of an interpersonal relationship. Simi­ larly, Stephen Darwall’s The Second-Person Standpoint argues that at least a core part of morality consists of relations of mutual accountability between

58 Thomson 1990, pp. 149–175; Thomson 1986, pp. 49–77.

59 This is especially true if the person killed is one of those who would otherwise die, as in Ber­ nard Williams’s well-known example of Jim and the Indians (see Smart and Williams 1973). 60 Strawson 1962.

A contractarian approach 61

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persons. I do not quarrel with Strawson and Darwall on this: it is clear that this is indeed both how obligations of justice appear phenomenologically and how they work functionally. But I reject the idea that this in any way under­ mines my own approach. Hume recognised that although social norms arise and are sustained because they are mutually beneficial, once they arise people rely on them by entering into mutually beneficial transactions, and feel resentment and anger when their own rights are violated under such norms.62 That resent­ ment helps secure the benefits of the practice, and is not at all inconsistent with the approach both Hume and I have taken. Once a mutually beneficial practice is in place, we are entitled to expect and demand compliance with it by each other, and when we are harmed by the breach of these obliga­ tions, entitled to enforce them if the practice of so enforcing such practices’ benefits outweighs their costs. The key idea behind a contractarian approach is that our obligations are reciprocal, and that fact ultimately underlies why we are bound. But given that we are bound, other persons who stand to benefit from our obligation have standing to hold us to those obligations. As with any contract, my obli­ gations are owed to the other party, not to myself. If I agree to sell you my car for £10,000 and then fail to deliver the car, I have breached an obliga­ tion owed to you, not one owed to myself, and you are entitled to demand performance or compensation from me. This in no way undermines the idea that our contract was one entered into for mutual advantage, nor does it undermine the contention that the ultimate reason why the law enforces con­ tracts is that contracts are mutually advantageous. Although I may be harm­ ing myself by breaching this contract, I am also harming you: having done your part in an exchange of obligations, you are owed my performance in return. Although many will accept this idea with respect to contractual obligations, some think it odd to speak of other obligations in this way. Surely it is not mainly, or only, because you have so far refrained from murdering me that I am obligated not to murder you. There are better reasons for me not to kill your children than the simple fact that you have not killed mine. This objection is partly right, but because it confuses motivation with the reason for enforcing the obligation. We of course want people to have a strong internalised norm against killing people, or their children, and we want that to be the reason they refrain from killing. I would be very uncom­ fortable living next to you if I thought you really wanted to kill me and only refrained out of respect for the law against murder; I feel much safer know­ ing that murder is unthinkable to you. Indeed, even with respect to con­ tracts, I feel much better knowing that you will keep your contract with me

61 Darwall 2006. 62 Hume 1975, pp. 310–311.

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out of a sense of honour, and will not feel free to breach it if for some reason I am unable to enforce it at law. Nevertheless, it is ultimately true that the reason why we prohibit murder, and have a social norm as well as a law against it, is that doing so makes us all feel much safer, and enables us to engage in mutually beneficial social relations that would be impossible were there no norms against it. And if such norms broke down totally, many of us would no longer feel bound by those norms. Of course most of us, having been socialised in a predominantly peaceful society, would not suddenly become murderous if transported to a lawless society.63 Nonetheless, ultimately even the norm against murder would cease to be bind­ ing in a totally barbaric society, and that fact would be among the worst aspects of living in such a society. The ability to enter into “second-person” relations of the type advocated by Strawson and Darwall is a major benefit of having a social morality. Knowing that such relations are mutually beneficial in no way undermines their secondperson character, any more than knowing that marriage is a mutually beneficial relationship undermines the love and commitment spouses feel for each other. Of course, knowing that marriage is a relationship based on mutual benefit may indeed make it easier for people to divorce when it is no longer such, as com­ pared with those who believed they were joined by God and are therefore pre­ cluded from divorcing. But as I said in Chapter 2, I think it is all to the good that we understand that our obligations are ultimately conventional and can and should be altered when they are no longer beneficial. That said, I will now discuss what I believe is the most important element of my contractarian theory: the Harm/Sovereignty Principle.

63 See Cormac McCarthy’s chilling novel The Road (McCarthy 2007) for a plausible depiction of a post-apocalyptic society following on from our own, in which norms against murder break down for many people, but not for all.

4

The Sovereignty Principle

The Harm Principle We saw in Chapter 1 that Epicurus viewed the essence of justice as an agree­ ment among men neither to commit nor suffer harm. Indeed he goes further: only such agreements constitute justice, and any law that does not prevent harm is not just. Moreover, any law which once secured mutual benefit by preventing harm but no longer does is no longer just. The implication is that laws that do not prevent (or presumably punish: the quoted passages from the Principal Doc­ trines clearly contemplate punishment) are not just and therefore not binding. Justinian’s Institutes summarised the basic maxims of the Roman law as fol­ lows: “The maxims of law are these: to live honestly, to hurt no one, to give everyone his due.”1 Essentially this corresponds to the laws of contract, tort and property, respectively. Of course Roman law also, from necessity, recognised that “what seems good to the Emperor has the force of law,” as did statutes, decisions of jurisconsults and similar items. Nonetheless, a central purpose of the law was to prevent men from hurting each other. Finally, we saw Hobbes’s first principles of natural law being to seek peace, and to gain it by agreeing to give up the right to all things, and for each man to be content with as much liberty as he was willing to grant other men against him. These are all examples of what might be termed a “positive Harm Prin­ ciple”; that is, an agreement not to harm each other. Indeed we can go further: unless someone agrees not to harm us, we have no obligation not to harm him. It is thus completely unobjectionable for us to impose the affirmative obligation not to harm even on those who do not accept it voluntarily, since unless they are willing to agree not to harm others, we have no duty not to harm them, and therefore no duty not to coerce them. In addition, if we conceive justice as a system of rules to enable us to engage in peaceful, mutually beneficial cooperation, an agreement not to harm is a prerequisite for such cooperation. I cannot reasonably agree to mutually bene­ ficial contracts with someone if I must constantly worry that he will harm me,

1 Justinian 1987, Book 1.

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The Sovereignty Principle

for example by taking by force something for which he previously agreed to pay. Although drug dealers and other criminals do sometimes manage to over­ come these obstacles, few would think their model of cooperation is one to emulate. Thus a convention against harming is not only directly mutually bene­ ficial because the gain from not being harmed outweighs the loss of the freedom to harm, but it also enables all of the further benefits of cooperation through contract and commerce. I conclude that the “Positive Harm Principle”—that is, the agreement not to harm or be harmed—is a part of any reasonable social contract. This means that the Principle is not just a limitation on when government may limit my free­ dom, but also an obligation on individuals not to limit each other’s freedom. Indeed, it is the fact that harming someone is wrongful that justifies its prohibition.2 The main issue is the scope of the agreement: throughout history humans have agreed not to harm the members of their group, but have excluded outgroups from the scope of the social contract. This of course leads to war, slavery and other assorted social ills. Whatever our other disputes, most agree that the historical tendency for the social contract to encompass more and more people represents moral progress.3 One does not need to be a moral realist to think this: I, and I think almost everyone else, prefer to live in a world with less vio­ lence, war and slavery, and that is all we need to view the expansion of the social norm against causing harm to encompass more and more of humanity as a good thing. In short, thinkers both past and present have believed that it is mutually advantageous that we should agree not to harm each other. This seems clearly correct, but we must be careful in thinking about what constitutes harm for this purpose. The predominant approach seems to be to start with the ordinary meaning of harm, and perhaps even end there. I think this is misguided. Ordin­ ary language is quite promiscuous in its use of general words like “harm” and there is no reason to think that the limits of the use of that word in English tie into the reasons why we would want to agree not to harm each other. For example, Joel Feinberg defines harm as a “setback to an interest,” which is not a bad definition of what the word means in ordinary language, but may not work as an attempt to flesh out the Harm Principle. His four-volume treatise is his attempt to make it work, and overall he does an impressive job. But Fein­ berg is a moral realist and seems to think that he is trying to discover the mean­ ing of a pre-existing moral principle. Since I have rejected moral realism, I think we need a different method.

2 For an essentially Kantian derivation of the claim that each person has a duty not to harm others, see Thomson 1990, pp. 227–248. See also Brian Barry’s arguments for his “positive harm principle” (i.e. a rule of justice prohibiting the injuring of other people) in Barry 1995, pp. 87–88. 3 See, e.g., Singer 2011, Pinker 2012, Buchanan and Powell 2016.

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The reason for agreeing not to harm each other is fairly straightforward: we all gain more from an agreement not to harm each other than we lose by giving up the right to inflict harm. If we understand harm as physical harm, certainly the intentional physical harming of another person is a negative-sum game: almost always the person harmed loses more than the harmer gains. Where this is not so we are much less likely to view the transaction as a species of harm. But the question of whether it should be prohibited does not turn on how we use language; rather, it should turn on whether prohibition is mutually advantageous.4 To take the standard example that is frequently cited against Mill, and that he indeed discusses, when I compete with you by selling my goods cheaper than yours, there is a sense in which I harm you, but it would be absurd to prohibit competition since the public as a whole benefits from it. We settle the issue of whether competition is caught by the Harm Principle by asking whether prohibiting it is mutually beneficial, not by asking whether it fits the ordinary meaning of “harm.” And since economic com­ petition is beneficial, we conclude that it does not violate the Harm Principle. This does not mean that we can dispense with the Harm Principle and just think about mutual benefit. The Harm Principle is a useful mid-level principle to help us focus on the issues that will generally be helpful in deciding what to and what not to prohibit. In legal and political thinking such mid-level prin­ ciples are frequently indispensable, and I would argue that the Harm Principle has in the past been a highly useful device for focusing inquiry on the right questions.

Harming versus helping Epicurus and many of the other writers we have been considering focus on harm, and it is easy to see why, as being safe from harm by other humans is a prerequisite for mutually beneficial cooperation. But if what we are after is mutual benefit, why aren’t there equally stringent duties to help each other? It is helpful here to focus on several factors that show why the most important social norms are norms against harming, and not norms requiring help. One idea that moral realists frequently invoke is the Doctrine of Doing and Allowing, according to which our duties not to cause harm are stronger than our duties to prevent it. This is thought to explain why, for example, it is wrong for a surgeon to kill a patient and use his organs to save five other patients, and why it is wrong to push a fat man off a bridge so that his body stops a trolley

4 For examples of the wrong technique, see Hanser 2008. There is a significant literature follow­ ing on from this paper, all of which in my view focuses on the wrong question. Of course these writers do not just examine ordinary usage, but it is the wrong place to start.

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that will otherwise kill five people.5 Consequentialists frequently attack this distinction,6 and research by Joshua Greene suggests that an important explan­ ation for the intuitions that apparently drive this distinction is the fact that they trigger emotional centres in the brain.7 Although I agree that a sound social morality should include far more strin­ gent prohibitions of harm than requirements of help, the reason is not that the Doing and Allowing distinction is somehow morally basic. It is rather the fact that prohibitions on harm are mutually beneficial, while requirements to help are not necessarily so. Gilbert Harman noted this early on in his The Nature of Morality: everyone benefits from a prohibition of harm, while requirements to help generally would benefit some (the poor and the weak, for example) while burdening others (the rich and powerful) to a larger extent than they would benefit. We should thus not expect a social morality to include strong duties to help, and indeed it should not include such duties, since they are not mutually beneficial for everyone or almost everyone. Instead they are redistributive and thus have been and should be rejected. There are additional reasons why a morality based on mutual benefit will include few or no duties to aid. For the most part, in order for me to remain unharmed everyone must not harm me, while in order for me to be helped only one person needs to help me. This is of course not always true, but it is true for the most part, and we should expect what is true for the most part to drive the formation of social norms. Second, it is relatively easy to avoid harming people, at least in the ways that social morality tends to prohibit, while there is almost no limit to the amount of help we could provide if required. This means that a duty not to harm is relatively undemanding, while a duty to help could be almost infinitely demanding.8 Again, while this is not always true, it is true for the most part. We should expect a morality of mutual benefit to reflect this dis­ tinction, and it does. We should expect a morality based on mutual benefit to be relatively undemanding, and it is: a demanding morality would be rightly rejected by people for whom the demands were greater than the benefits. This issue is sometimes raised in the course of debating whether there is an enforceable duty to provide easy rescues; that is, to rescue persons from dangers where one can do so at little cost to oneself. At initial glance it might seem that such a duty can be justified on the basis of mutual advan­ tage: after all, I stand to benefit if others rescue me, and by hypothesis the duty does not burden me too much since it only applies if the rescue is easy.9 But like almost all abstract philosophical arguments, this one fails

5 The literature on this distinction is large—landmarks include Quinn 1989, Foot 2000c, Shef­ fler 2004. For a recent argument in favour of the distinction, see Woollard 2015. 6 See, e.g., Bennett 1998. 7 See Greene 2008. This research is also discussed in Greene 2014. 8 See Woollard 2015, Ripstein 2016, p. 56. 9 See, e.g., Weinrib 1980, Feinberg 1987.

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when its empirical implications become clear. Most importantly, the evidence suggests that legally imposed duties to rescue do not actually lead to more rescues, as most people are already inclined to provide such rescues without the legal sanction.10 There is also a real danger that allowing civil and crim­ inal remedies against those who fail to rescue will undermine social norms against the wrongdoers who actually cause harms, as people sue deep-pocket targets instead of the actual wrongdoers. For these and other reasons, espe­ cially the uncertainty of the scope of such a duty (what is “easy”?), the authors of one leading English tort text reject any such duty, at least in most cases.11 I conclude that for the most part the balance comes down in favour of a social morality that praises and rewards those who perform such rescues, and criticises those who fail to do so, but withholds legal sanctions, both criminal and civil, for failure to rescue.12 There are a few exceptional cases where the law appears to require more (e.g. ships at sea), but they are driven by unique circumstances that cause the normal cost-benefit analysis briefly summarised above to come out differently, thus leading to different results. But for now I want to stress that the differential treatment of harm and help is not driven by some fundamental moral distinction between harm and pre­ vention or doing and allowing, since there are no such fundamental distinc­ tions, but rather by the practical considerations enumerated above, which generally result in strong prohibitions against harming but weak duties to help. In a different world these factors might well come out differently, and if so we would see a different morality. As an example of this, consider an article by Kasper Lippert-Rasmussen.13 He responds to one argument for the idea that everyone owns their own body—the supposed impermissibility of forcing people with two eyes to share one of their eyes with the blind if this could be done—by imagining a world in which many people were born without eyes while others grew eyeballs on their backs that could be painlessly removed and implanted to give sight to the blind. In such a world, he suggests, we would not hesitate to require those with surplus eyes to allow their removal for the blind. I of course would happily agree with this. It says nothing at all about our own world, where a generally strong protection of a human’s bodily integrity is an excellent social rule. How do we distinguish harming from helping? In general, I harm you if I make your condition worse than it would have been in my absence (i.e. if I did not exist at all or we never interacted). This corresponds to the common-sense distinction and is the only method that adequately protects our right to “mind our own business.” Although I have not followed

10 Hyman 2005.

11 See McBride and Bagshaw 2018, pp. 189–193.

12 Other prominent defences of this position include Epstein 1973, pp. 189–204; and Gaus

2011, pp. 357–368. 13 Lippert-Rasmussen 2008.

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Gauthier on most issues in this book, on this he gets things exactly right.14 The alternative suggestion, by Joel Feinberg, that I harm you when I set back your interests from what you are entitled to have,15 is overly moral­ ised, as we need to know whether something is a harm or a benefit in order to decide what your entitlements are. Of course, people can devise gimmicky counter-examples to this. A well-known such example is due to Shelley Kagan: I rescue you from drowning and thereby save your life, then stab you to death once you are safely ashore.16 We surely want to prohibit this, and most people might say it is a case of harming. As I have said before, while such gimmicky counter-examples are common in reflective equilib­ rium arguments in moral philosophy, they are of no use at all when it comes to a morality based on mutual advantage. A rule that works 99 per cent of the time is an excellent one in human affairs. While a single counter-example may refute a law of nature, it is not an objection to a social rule. Distinguishing harm from benefit by comparing your situation to what it would be in my absence is a very useful approach in general; if there are socially justified exceptions, we can deal with them separately, as of course we would in the case of the rescued swimmer, as there are excellent reasons to prohibit me from stabbing you even if I previously saved you, and no real reason not to do so.

The negative Harm Principle What writers since Mill, myself included, have referred to as the Harm Prin­ ciple is the converse of this: the idea that government should be limited to preventing and punishing harm. In a sense this idea is an obvious extension of the social norm against harming: it simply extends the prohibition against harm to the government itself, by prohibiting restricting a person’s freedom except to the extent necessary to prevent or punish harm. But while this exten­ sion seems obvious to me, and I hope to many others, it has been far from obvious for most of human history. Rulers throughout history have claimed exemption from the rules they enforce on others, whether through an idea of divine right of kings or some similar thought. Even today the idea that govern­ ment has no greater right to harm its citizens or others than does an individual is controversial: I will defend that basic idea in Chapter 6, but for now will simply assume it.17 Although the idea that government is only concerned with preventing harm is implicit in Epicurus, it finds its first clear expression in the French Declaration of the Rights of Man and of the Citizen, 26 August 1789, Article IV:

14 15 16 17

See Gauthier 1986, pp. 203–205.

Feinberg 1987.

See Kagan 1991.

See, e.g., Huemer 2012 for an argument that the government has no greater right to coerce

than do individuals, by a moral realist.

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Liberty consists of doing anything which does not harm others: thus, the exercise of the natural rights of each man has only those borders which assure other members of the society the fruition of these same rights. These borders can be determined only by the law. The whole idea that there are limits on government is almost exclusively modern: there are virtually no hints of it before the US Declaration of Inde­ pendence, which was in turn largely inspired by the writings of John Locke. I did not include quotes from Locke in Chapter 1 because his basic account of rights was not based on contract: Locke saw rights as natural and ultimately traceable to God. He did, however, view government as contract based and limited as a result, and thus while it would not be right to view him as a contractarian about morality, he was of course a contractarian about govern­ ment. He was also quite properly sceptical about the idea that men should empower a strong sovereign to better protect themselves from other men: As if when men, quitting the state of Nature, entered into society, they agreed that all of them but one should be under the restraint of laws; but that he should still retain all the liberty of the state of Nature, increased with power, and made licentious by impunity. This is to think that men are so foolish that they take care to avoid what mischiefs may be done them by polecats or foxes, but are content, nay, think it safety, to be devoured by lions.18 Today, however, most discussions of the Harm Principle start from John Stuart Mill’s On Liberty. Under Mill’s Harm Principle, the state may not limit one per­ son’s freedom except to prevent or remedy harm to others. As originally formu­ lated by Mill, it states that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number … is to prevent harm to others.”19 Mill viewed his Principle as protect­ ing freedom and individual sovereignty, both of which he considered vital to promoting the interests of man as a progressive being. The Harm Principle is frequently discussed in the context of the moral limits of the criminal law, as that is the context of Joel Feinberg’s four-volume treatise20 on it. However, as originally formulated by Mill, it applies more broadly, to all forms of state action as well as individual action, and that is how I shall use it. It is not often remembered that Mill applied the Harm Principle to individual as well as collective action, but in my argument it becomes import­ ant to stress this feature. Although Mill included within his Principle the moral coercion of public opinion, like many I find that extension of it implausible and

18 Locke 1952, Book VII sec. 93. 19 Mill 1947, p. 9 (emphasis supplied). 20 Feinberg 1987, 1989.

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inconsistent with freedom of thought and speech. But it should extend to any interference by any person with any other person’s freedom. Mill was of course a utilitarian and derived his Harm Principle from his utili­ tarianism, although many have questioned whether the two are really consistent.21 Mill believed that humanity would be better off if people were allowed room to experiment in ways of living, and especially in matters of speech and religion that truth was more likely to emerge if expression was not limited. He was probably right about this, but the nature of this type of argu­ ment leaves a great deal of room for qualifications and disputes. I think the motivating idea behind the Harm Principle is more properly regarded as individual autonomy based on Kant’s Doctrine of Right, according to which [F]reedom (independence from the constraint of another’s will), insofar as it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity.22 Or as he put it elsewhere, No-one can compel me to be happy in accordance with his conception of the welfare of others, for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end which can be reconciled with the freedom of everyone else within a workable general law—i.e. he must accord to others the same right as he enjoys himself.23 These ringing words suggest a more fundamental idea underlies the Harm Principle: the idea that each person wants to run his own life, and should there­ fore allow others to run theirs if they will let him run his. They recall Hobbes, but with a much more fundamental commitment to freedom than Hobbes con­ templated, since almost immediately after concluding that men need protection from each other, he contemplates empowering an unlimited sovereign to do the protecting. Although Kant does not go this far, his own account of political authority is fairly Hobbesian in spirit: he concludes, for example, that people have no right to revolution, no matter how oppressive the sovereign is, with fairly modest limitations. This aspect of Kant is subject to decisive objections, and will not be further discussed.

21 See especially Mackie 1984, who argues that Mill’s Harm Principle is better justified from a rights basis than Mill’s own goal basis, and whose freedom-based theory of rights is very similar to the one urged in this paper. 22 Kant 1965, pp. 43–44. 23 Kant 1991, p. 74.

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Harm versus sovereignty The Harm Principle has come under attack recently, and at least some of these attacks have merit. The principal attack focuses on the concept of harm, which is simply too ill-defined to serve as a significant limitation on government action. Indeed, under some views any action that another person does not like can be deemed harmful to that person. Although there are ways to refine the concept of harm, and indeed Joel Feinberg makes a brave effort to save the Harm Principle at least as a principle limiting the criminal law,24 the consensus of recent commentary concludes that the Principle cannot succeed as a limitation on the scope of the law.25 Not all of these attacks deserve to succeed. Some critics of the Harm Principle like to point to things that are not harmful to others but that many want to prohibit. Drug laws are a good example: under any reasonable construal of the Harm Principle drug prohibitions are illegitimate, and attacks on the Harm Principle premised on a desire to preserve such laws fail and deserve to fail; such laws are illiberal attempts by the majority to impose their values on others and should not be countenanced.26 In “Beyond the Harm Principle,”27 Arthur Ripstein has advocated replacing the Harm Principle as formulated by Mill with what he calls the Sovereignty Principle, an essentially Kantian notion. Ripstein’s Sovereignty Principle is based on the idea of independence: that each person is entitled to use his own powers as he sees fit, so long as he respects the right of others to do the same. Under his Sovereignty Principle, government action is only permitted if it protects individual sovereignty. His primary argument is that the Sovereignty Principle better handles cases of harmless trespasses, which violate the rights of others but do not harm them; his example is sleeping in someone’s bed without his consent.28 Although I agree with Ripstein’s argu­ ment as far as it goes, frankly the need to accommodate such cases does not strike me as in itself a sufficient reason to abandon the Harm Principle. The real reason for substituting the Sovereignty Principle for the Harm Principle is that the concept of harm will not do the real work we want it to do of protecting our freedom. It is simply too easy for someone who wants to permit the law to prohibit something to conjure up a definition of harm that will allow it, for example by invoking psychic harm or harm to the community.

24 25 26 27 28

Feinberg 1987, 1989.

See, e.g., Harcourt 1999, Holtug 2002, Smith 2006, Duff 2009, pp. 123–146.

See McWilliams 1996, Husak 2009.

Ripstein 2006.

Ripstein’s analysis of the Sovereignty Principle prohibits even harmless trespasses on one’s

property (the example he uses is sleeping in your bed without damaging it). This answers arguments by theorists such as Richard Arneson that a harm-based account could not prohibit harmless trespasses. See Arneson 1991.

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In a sense the Sovereignty Principle is simpler since it asserts what the govern­ ment is allowed to protect (freedom), rather than what it is allowed to protect people from (harm). That in itself would not be a reason to replace one with the other, particularly since the Harm Principle is well known and has a long pedigree. The problem is the tendency of people to understand the word “harm” too promiscuously, such that the Harm Principle is essentially defanged by allowing anything people would like to avoid to be labelled as “harm.” If we could limit the word “harm” to encompass only encroachments on freedom we could avoid this, but it is probably too late to do that. Ripstein argues that the Sovereignty Principle is essentially a theorem of Kant’s overall moral theory,29 but that is of course not relevant here since I reject Kant’s general moral philosophy. Under Kant’s formulation, the Prin­ ciple is not simply a limitation on government but a foundational moral prin­ ciple: I may not subject another person to my will except in ways that are consistent with a similar freedom on his part. If each person has a right not to be subject to the will of another, that entails a correlative duty on the part of those others not to impose their wills on him. Although we should reject Kant’s arguments for this right, as a starting point for a mutually advantageous morality it has a lot going for it. Many discussions of the Harm Principle argue that, in addition to showing that some form of harm has resulted, or a risk of such has been created, showing that the conduct in question is wrongful is also necessary.30 With the Sover­ eignty Principle no such showing is necessary, as any interference with another person’s freedom is at least prima facie wrongful if that interference is not de minimis or reciprocally justified.31 The main reason that the Harm Principle required such supplementation was that some forms of harm are clearly justified; Mill himself uses the example of competitive harm. But competitive harm is not an issue with the Sovereignty Principle, as competing with someone in no way limits his freedom over his own person and powers, and it is a virtue of the latter that it may avoid the need to supplement the principle with a separate account of wrongfulness. In addition, focusing on harm inherently involves contestable value judge­ ments regarding which effects merit valuing and which do not.32 The entire point of freedom is to allow each person to choose his values for himself, and focusing on harm makes my freedom hostage to the values of others in a way that is inherently objectionable. The Sovereignty Principle avoids this by limiting my freedom only by the freedom of others, something I cannot object to while invoking my own freedom as a basis for immunity from that restriction.

29 30 31 32

See Ripstein 2009.

See Duff 2009, pp. 126–135.

Feinberg 1987, p. 217.

See Holtug 2002, p. 364 (“we … need a theory of welfare in order to interpret the Harm

Principle”).

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By prohibiting only actions which impinge upon someone directly or limit his freedom, the Sovereignty Principle captures the point of Mill’s Harm Principle while avoiding its main difficulties.33 It should replace the Harm Principle henceforth in discussions of political theory. From now on in this book I will refer therefore to the Sovereignty Principle, and urge its adoption, not because it is a basic moral principle, as there are no such things, but because it is an excellent place to start. In previous work I have defended a modification of the Sovereignty Principle, because the Sovereignty Principle itself seemed too strong, as it prohibited restrictions of liberty that are mutually beneficial. I therefore modified the Sov­ ereignty Principle to permit mutually beneficial restrictions of liberty, and called the resulting hybrid principle the “Reciprocal Sovereignty Principle.” This prin­ ciple allows restrictions of freedom where a rule allowing such restrictions is to everyone’s benefit. It is most certainly not a principle that permits coercion that leaves the coercee no worse off. Ripstein quite rightly argues against such a move.34 Rather, it permits coercion where a practice of allowing such coercion is mutually beneficial. A classic example of a situation where people will want to consent to mutual coercion is in a Tragedy of the Commons, where everyone benefits from “mutual coercion, mutually agreed upon.”35 This justification is frequently abused and overused, and I am the first to agree that frequently coercion is not needed to render commons “non-tragic.”36 But the Reciprocal Sovereignty Principle allows coercion where everyone benefits more from the coercion of others than they lose from being coerced themselves. It is a defect of Kant’s overall political theory, which is entirely freedom based,37 that it does not address such situations; allowing reciprocally beneficial coercion is the solution. The Reciprocal Sovereignty Principle is still the approach I defend in this book. However, for my present purposes I want to focus on the Sovereignty Principle separately. The reciprocity-based modification to that principle is dis­ cussed in more detail in Chapter 6, where I defend it as a modified version of what has sometimes been known as the Principle of Fairness (or Fair Play) but that I prefer to call, following Robert Sugden, the Principle of Cooperation.38

Mackie’s principle In a paper published not long after his Ethics, J.L. Mackie’s “Can There Be a Rights-Based Moral Theory?”, Mackie argued that moral theories tend to be

33 34 35 36 37 38

See Ripstein 2007.

Ripstein 2006.

Hardin 1968, p. 1247.

See Ostrom 1991.

See Ripstein 2009.

See Sugden 2005, pp. 170–182.

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either goal based, rights based or duty based. He rather quickly dismissed the idea of a duty-based theory, however, on the ground that duties themselves are onerous and thus need to be justified by something affirmative, either by rights or goals. He then discusses goals at greater length, rehearsing familiar objections against utilitarianism and other versions of consequentialism that modify utilitar­ ianism’s purely aggregative approach to combining the utility of different per­ sons. But ultimately he concludes that the problem with utilitarianism and its variants is that it simply cannot justify the idea that one person is bound to sac­ rifice his well-being or happiness for the sake of others, and that there is no meaningful single goal for human beings. As I argued in Chapter 3, this rejec­ tion of utilitarianism and other forms of consequentialism is completely correct. People differ radically about the kinds of life that they choose to pursue. Even this way of putting it is misleading: in general people do not and cannot make an overall choice of a total plan of life. They choose succes­ sively to pursue various activities from time to time, not once and for all. And while there is room for other sorts of evaluations of human activities, morality as a source of constraints on conduct cannot be based on such comparative evaluations. I suggest that if we try to formulate a goal-based moral theory, but in identifying the goal try to take adequate account of these three factors, namely that the “goal” must belong to the category of activity, that there is not one goal but rather indefinitely many diverse goals, and that they are the objects of progressive (not once-for-all or con­ clusive) choices, then our theory will change insensibly into a right-based one. We shall have to take as central the right of persons progressively to choose how they shall live.39 To paraphrase, there is simply no common currency that we can all agree to maximise, or that persons would agree to maximise if it meant they were expected to treat the gains of others as making up for losses to themselves. He then refers to Mill’s On Liberty as demonstrating that Mill himself was driven to a view similar to this. He concludes that “when we think it out, we see that not only can there be a right-based moral theory, there cannot be an acceptable moral theory that is not right-based.”40 Mackie, of course, stresses that he is not contradicting what he said in Ethics: The fundamental right [i.e. of persons to progressively determine how they shall live] is put forward as universal. On the other hand, I am not claiming that it is objectively valid, or that its validity can be found out by reason: I am merely adopting it and recommending it for general adoption as a moral principle. Also, I have argued that this fundamental right has to be

39 Mackie 1984, p. 175. 40 Ibid., p. 176.

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formulated only as a prima facie right. Derived specific rights (which can be final, not merely prima facie) will be historically determined and contingent upon concrete circumstances and upon the interplay of the actual interests and preferences that people have.41 Although Mackie does not stress the affinities of his approach with Kant’s account of political and legal philosophy, considering his exposition alongside Kant’s, especially as it is explained in Ripstein’s Force and Freedom, shows a great deal of commonality. Kant too attempts to derive a full account of law and political philosophy from the idea of equal freedom, and does so in a way that is quite attractive, although of course not to be adopted without changes. The point is that we can accept a Kantian approach to legal and political phil­ osophy while rejecting wholesale, as I do, Kant’s ethical philosophy. We can instead see what in Kant survives when we view the idea of sovereignty, con­ ceived as independence from the control of others, as the foundation of an agreed approach to law and politics that can make possible a social contract between persons who otherwise disagree fundamentally about how to live. In a paper that immediately follows Mackie’s in Waldron’s anthology,42 Joseph Raz argues that a morality cannot be entirely right-based, as such a theory leaves insufficient room for such things as supererogation or other ideals that do not ground duties or moral virtues. Much of his argument is premised on his own moral realism, which we should reject. Raz concedes that a right-based morality might be more adequate as an account of “morality in the narrow sense”; that is, those principles which restrict the individual’s pursuit of his personal goals and the advancement of his self-interest. Raz ends up rejecting this distinction because he thinks we cannot separate out our rights without knowing what makes a life meaningful and satisfying. Here of course I totally disagree with Raz: since there is no truth about what makes life mean­ ingful or satisfying, but only separate answers to what we each value and find meaning in, we must separate these things in the only way we can: by agreeing to rules that let us each choose our own meanings and values. A right-based morality is, for that purpose, the only game in town. How does this idea mesh with my suggestion earlier that only actual agree­ ments, not hypothetical agreements, are binding? Am I suggesting that we have already agreed to the Sovereignty Principle I am advocating? If not, how can it be relevant to deciding what we should do politically? Mackie makes a helpful suggestion in this regard that I propose we adopt. The Sovereignty Principle, which comes from Mill but that I am treating as essentially equivalent to Kant’s Doctrine of Right and Mackie’s Progressive Free­ dom Principle, should be treated as a critical global principle for evaluating which laws and actual social norms are binding. By itself, it does not create

41 Ibid., p. 178.

42 Raz 1984. This paper appears with modifications in Raz 1986, Chapter 8.

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obligations, but it can negate the binding character of actual norms and laws, and also indicate where we should adopt laws and norms that we have not so far. As Mackie says: But the fact that something is an institutional right, recognized and defended by the laws and practices of a particular society, does not necessar­ ily establish it as a moral right. It can be criticised from the moral point of view by considering the social interactions which have generated and main­ tained the institutional right to express the fundamental right of persons progressively to choose how they shall live … and to what extent they vio­ late it. Our theory could have conservative implications in some contexts, but equally it could have reforming or revolutionary implications in others.43 My suggestion therefore is that we adopt the Sovereignty Principle (with the Reciprocal benefit modification I argue for in Chapter 6) as our critical principle for evaluating our actual agreements and norms, including laws. Norms and laws that satisfy that Principle we should treat as binding, and those that do not we should not treat as binding. We can also use that Principle to evaluate pro­ posed new laws or norms, but again I am not proposing that any such norm is binding merely because it would satisfy the Sovereignty Principle if we adopted it. Only actual laws and norms are binding, but not all actual norms and laws are binding.

Justice and the vulnerable A common objection to contractarian theories of justice is that they cannot jus­ tify our duties to persons who can neither threaten us with harm nor provide us with benefits. Recall the discussion from Hume in Chapter 1 of this problem, and his frank concession that we owe such persons no duties of justice, but rather only humanitarian consideration. Gauthier similarly concedes that his theory does not apply to such persons.44 Many people consider this a decisive objection to the whole enterprise: they have strong “intuitions” that we owe duties to such persons (hereafter the “Vulnerable”), whether or not they have the bargaining power to demand such duties.45 My response, as indicated previ­ ously, is to reject such intuitions, and to insist that there are no such duties unless they can be justified from within a theory of justice based on mutual advantage. If they cannot, then the objectors have no case: they are simply trying to impose their own preferences on those who do not share them, some­ thing we must oppose resolutely.

43 Mackie 1984, pp. 178–179.

44 Gauthier 1986, p. 268.

45 See, e.g., Nussbaum 2007, Barry 1989, Buchanan 1990.

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To aid our discussion, I will pose two imaginary cases for consideration. In doing so I am not reverting to the method of reflective equilibrium that I rejected in Chapter 2: I do not think our reactions to these cases represent some access to an intuitive true morality. Instead, I hope that they will help us focus on the salient issues that a social morality must address. We can con­ sider hypothetical cases as part of that exercise without assuming any such idea. I call these two cases Island (Harm) and Island (Help). In both cases let us imagine a desert island inhabited by three men: Adam, Bob and Carl. They live separate lives on separate parts of the island, respect each other’s rights to priv­ acy, bodily security and exclusive use of their respective thirds of the island, and subsist by fishing. They exchange greetings when they encounter each other but are not friends and do not socialise, nor do they engage in trade. Finally, imagine that one day Carl is struck by lightning and paralysed, so that he is unable to fish or otherwise subsist. Now it is as clear as it could possibly be to me in this case so far that neither Adam nor Bob has any duty in justice to come to Carl’s aid. Many people I describe this case to disagree, but upon examination it is clear that they have a theory of justice that is not based on mutual advantage. I should note here that were I Adam or Bob I probably would help Carl out, but I would not feel any obligation to do so: if I did it would be out of sympathy, solidarity or a desire to be a particular sort of person, one who helps his neighbours. More­ over, I would refuse to adopt or comply with a social morality that required me to aid Carl in these circumstances. For me, a fixed point in thinking about mor­ ality in situations like this one is that helping in these circumstances is optional, not mandatory. It is a central part of the control over my own life that I would insist on. I am not invoking some privileged access to a mind-independent truth in saying this: I am rather laying down a prerequisite for any morality that I could accept. The case would of course be different if the three men had agreed beforehand that they would come to each other’s aid; such a case would be a core example of a justice-based requirement. Island (Harm) has the following additional facts: Bob decides to take advan­ tage of Carl’s helpless state by taking over the half of Carl’s land closest to his own. Adam threatens Bob that unless he relents, Adam will use force against him. I would say Adam acts properly (I do not say that he is required to do this—see above). In Island (Help) Adam decides to help Carl by giving him one third of his own fish. He then threatens to use force on Bob unless Bob agrees to do the same. I would say that Adam acts improperly here. How should we account for the difference, assuming you agree? We could say that the three men had an implied agreement to respect each other’s property rights that Bob violates in Island (Harm), and Adam is enforcing that agree­ ment. But they had no implied agreement to aid each other and thus in Island (Help) Adam is not enforcing an agreement. His argument would rather have to assume that Bob has a duty to aid Carl that Bob rejects, and that Adam is enforcing this duty. We should reject this latter idea—the duty to live peaceably

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with our neighbours should include a duty not to force them to comply with duties to which they have not agreed. I think we can say more to justify Adam’s actions in Island (Harm) as well. Bob’s aggression against Carl poses a threat to Adam—if he is allowed to get away with it, who is to say he won’t aggress against Adam later? Moreover, Adam may feel solidarity with or sympathy for Carl—he is not required to, but he may well feel it. I would say that we are not required to foreswear the use of force against people who don’t use force against us but do use it against others: either because we rightly fear their future actions or because we sympathise with their victims, we are within our rights to defend others, not just ourselves. Remember Lucretius’s story, quoted in Chapter 1, of how protection for the weak derives from the desire of men to protect their wives and children. I would suggest that we should think about justice as to the Vulnerable similarly. Many of us sympathise with and feel solidarity towards the Vulnerable, and we are within our rights to say, “I will not make peace with you if you do not agree not simply not to aggress against me, but also against other persons, including the Vul­ nerable.” Thus when abolitionists succeeded in getting most people to sympathise with slaves and see them as relevantly within the scope of justice, they rightly forced the slavers to free their slaves. Our previous theory of justice, which excluded the slaves, was expanded to include them, and rightly so. It is totally different with respect to duties to aid the Vulnerable. There can be no basis for imposing on those who feel no obligation to the Vulnerable, absent a prior agreement. Those who believe in such an obligation, or those who want to help even without feeling obligated (like me), can aid the Vulnerable without being entitled to demand contributions from those who do not share their views. It might be in our interest to enter into a form of social insurance against the risk of becoming disabled, as it might have been in the interest of Adam, Bob and Carl to do so. Whether it would might be a difficult problem—what the economists refer to as “moral hazard” (that is, the tendency for people who are insured against a bad outcome to be less careful to avoid it) is a possible concern here. But we cannot justify taking from those who have never agreed simply because they might have joined a scheme had it been available—a hypothetical contract imposes no obligations. I conclude that a theory of justice based on mutual advantage can jus­ tify duties not to harm the Vulnerable, but not duties to aid them.46 Lawrence Becker thinks that we can justify quite strong duties to the disabled from within a contractarian framework. He quite rightly notes that the able have significant self-interested reasons to care about the disabled: Today, in something like our situation, mutual advantage bargainers will be aware that there are many long-lived human beings who temporarily or per­ manently lack the ability to participate in the bargaining, and they will be aware that they themselves are vulnerable to disease or injury or accident

46 See also the discussion of these issues in Chapter 10.

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that can put them in this class. They will be aware that medical care— both acute care and rehabilitative care—together with special education and the now impressive range of assistive technology, can do a great deal to offset the limitations of some physical and mental disabilities. More­ over, they will understand how it may happen that they themselves, while fortunate in their own abilities, might have long-lived but seriously disabled children, friends and neighbors—people whom they love deeply and whose welfare is inextricably interconnected, psychologically, to their own. They will understand that many of their fellow citizens, including perhaps themselves, but especially, and disproportionally, women, might be seriously burdened with the care of disabled people they love. And each bargainer will understand that even if she herself escapes disability and caring for the disabled, the fact that many others will not escape these things poses a strategic problem.47 Becker goes on to conclude that bargainers will adopt a quite extensive set of positive rights for the disabled based on these considerations. I agree with Becker, for the reasons he gives: that bargaining will lead to rights for the disabled against being harmed, and by parity of reasoning, for other vulnerable persons. However, he is able to conclude that these rights will include positive rights to treatment, compensation for disability, special accom­ modation and similar things only by completely overlooking the costs of provid­ ing these things. Of course, rational persons would want these things for those with whom the sympathise, but they would have to weigh the costs of these things against the benefits, in light of the likelihood that they and those they care about will need them but be unable to provide them on their own. It is far from clear that the cost-benefit test will come out in favour of such rights for many people, who may be able to save or purchase insurance against many such eventualities, and conclude that any remaining risks are worth running. As a general matter, our concern for the Vulnerable, knowing that we and those we love may be among them, is likely to be enough to outweigh the costs of agreeing not to harm them. It is far from clear, though, that that concern will be enough to outweigh the costs of providing positive rights, which can be and frequently are far higher than the costs of refraining from harm. The costs of providing such rights include, in addition to the financial costs which can be very high, the danger of fostering dependency and undermining incentives for work and other positive behaviours. The latter costs are likely to be very high, as witness the extreme growth in rates of claims of disability in countries with systems of benefits for the disabled.48

47 Becker 2005, pp. 16–17. 48 See Eberstadt 2012, Bartholomew 2015, pp. 1–15, Eberstadt 2016. David Schmidtz has in many places emphasised the problems associated with guaranteeing positive rights. See Schmidtz 2000, 2011, as well as his contribution to Schmidtz and Goodin 1998. This last

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Even Becker’s argument will not be enough to satisfy theorists like Martha Nussbaum49 who believes that each person is entitled to a sufficient level of each of nine capabilities, and that we each have duties to either ensure that they reach this level or compensate them if they do not. Nussbaum thus believes we have strong duties to aid the disabled. But a positive duty to promote the cap­ ability of others is impossible to justify on a theory of justice based on mutual advantage. She recognises this, and uses the fact that justice as mutual advantage will not generate the strong obligations her intuitions tell her we owe to the disabled as an argument against mutual advantage theories of justice. But her intuitions are simply her preferences, and the rest of us need not share them and are not bound by them. Justice as mutual advantage remains the only game in town, and rights that cannot be justified within that framework cannot be justi­ fied at all, and must be rejected.

Conclusion An agreement to respect each other’s sovereignty is mutually beneficial for virtu­ ally everyone. Agreements to help each other may be mutually beneficial for some, but are not for all; many of us can do well without them. This, and the related fact that we need everyone not to harm us but only one person to help us when we need help, justifies general duties not to harm but not general duties to help. I am not a psychological egoist, nor are most people. Although most of us care far more for ourselves and our close friends and family than for others, there is nothing normative about this: we are not required to be egoists or par­ tialists. But nor are we required not to be. Altruism is possible and in some ways praiseworthy, but there is nothing we are obligated to accept that makes it mandatory. On the contrary, a proper respect for the sovereignty of others requires that we respect their choice whether or not to be altruistic, and how altruistic to be. For a long time I believed that the Sovereignty Principle was the only principle we needed. Ripstein argues, following Kant, that this is true, and Mackie suggests something similar. It is clear to me, though, that the Sover­ eignty Principle by itself is not enough: there are laws and social norms that are not needed to protect our freedom but that are nonetheless justified. But they are a much narrower set of laws and norms than most people suppose. In Chapter 6, I explain why we need a broader principle, but also why it must remain narrow, and certainly cannot be used to justify the Leviathan states we have.

book encapsulates the arguments on welfare rights as well as any; in my opinion, Schmidtz absolutely demolishes Goodin’s arguments in favour of such rights. 49 Nussbaum 2007.

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Before turning to that issue, however, we need to consider what the Sover­ eignty Principle protects when it protects freedom. Freedom is a protean concept in political philosophy, and I need to say more about what I mean by “freedom” when I say the Sovereignty Principle protects freedom, and why we should adopt this view and reject the others. This is the task of Chapter 5.

5

Sovereignty and freedom

This chapter will consider recent philosophical work on the concept of freedom, with a view to determining how freedom is best characterised in political theory. Its focus will be the Republican concept of freedom as set forth in recent writ­ ings by Philip Pettit and Quentin Skinner and its relationship to the Kantian political conception of freedom, but I will also address various other conceptions of freedom, such as the pure negative freedom of Hillel Steiner, Ian Carter and Mathew Kramer and the capability approach of Amartya Sen and Martha Nuss­ baum. By examining where these theories go wrong, we will be able to con­ struct an approach that retains their virtues while avoiding their flaws. That account fits nicely with the approach advocated in this book. To anticipate my conclusion, I will argue that the Kantian approach is pre­ ferred. But the approach I defend will make room for consequentialist con­ siderations to play a role in the overall theory, as no view of ethics or politics that ignores consequences entirely is plausible. These changes will partially address some of the Republican arguments that are discussed below, and serve to make the resulting theory more acceptable than the pure Kant­ ian approach. Many whole books have been written about each of the approaches to free­ dom I will discuss, and I will necessarily have to discuss each theory only in summary here. I hope that my summaries are not misleading, but they are necessarily incomplete and must ignore some nuances. I do not believe that any omitted details are vital to the argument. By showing just how the conception of freedom I advocate relates to these other conceptions, I believe the features that make that approach distinctive and attractive will be brought out.

The approaches contrasted Pure negative freedom The distinction between positive and negative freedom dates back at least to Isaiah Berlin’s famous “Two Concepts of Liberty,” but for present purposes I will draw the contrast a bit differently than did Berlin. Berlin’s notion of nega­ tive freedom is tied to interference: I am free to the extent that no one prevents

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1

me from doing what I want to do. Positive freedom is tied to concepts of autonomy and self-mastery, and as discussed by Berlin it is less than clear whose conception of freedom is actually being referred to.2 A more straightforward concept of positive freedom is simply ability: I am free to do something if I am able to do it.3 This is essentially the capability approach, discussed below. There are three fairly simple and closely related arguments against conceiving of freedom in this positive way. The first is based on ordinary language, and asserts that it is not in accord with ordinary usage to say, for example, that I am unfree to fly unaided simply because, unlike Superman, I am unable to do so. Although it may seem odd at first glance to say that both I and Superman are free to fly unaided, it is on balance better to say that than to say that I am unfree to fly if no one stops me. The second argument is that it retards analysis to confuse freedom with inability; we have perfectly good words like “ability” and “capability” to denote what we can do, and need a different word to denote those things we are not prevented from doing by the actions of others.4 The negative concept of freedom follows from this idea: we are free to do some­ thing just in case no one interferes with our doing it, regardless of whether we are able to do it. Finally, as discussed below, the negative freedom approach meshes well with deontological approaches to ethics which conceive of negative duties as much stronger than positive ones. As I just showed in Chapter 4, that is also the approach we should adopt. These considerations noted, it is of course true that we mainly care about freedoms to do things that we are capable of doing. While it may be wrong of someone to prevent me from flying unaided, the freedom to do so is likely not to be of great value to me given its physical impossibility, and if trade-offs were needed between that freedom and others of greater practical value, the freedom to fly unaided would be one most people would give up readily. An adequate view of freedom must take account of this consideration. Most early accounts of negative freedom included as instances of unfreedom not only cases where someone prevents me from doing something, but also cases where I am threatened with bad consequences if I perform an action. For example, H.L.A. Hart treated as unfree any action that was made “less eligible

1 In the preface to Berlin 1969, which includes the “Two Concepts” paper, Berlin modified this to encompass interference with freedom of action irrespective of what the agent wants to do, since otherwise the account is subject to the “contented slave” objection, as it would mean that a slave who has no desire to do anything other than his master’s will is free, even if his preference is an adapted one that he would not have if he were not a slave. 2 Flikschuh 2007, pp. 22–28. 3 This definition of positive freedom differs significantly from the types of positive freedom gen­ erally discussed in the literature, under which positive freedom is essentially an exercise con­ cept. See, e.g., Harbour 2012. These theories of positive freedom are inadequate for reasons ably shown by the negative liberty theorists discussed below. For an interesting exception, which adopts a view of positive freedom similar to that discussed here, see Crocker 1980. 4 Palmer 2009, pp. 20–29, 465–466.

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by threats.”5 Although this introduces some imprecision into the concept (how dire must a threat be before it renders me unfree?), it again corresponds to ordinary usage—no one innocent of philosophy would say I am free to do something if the government credibly threatens to execute me for doing it.6 Recently, however, Hillel Steiner, Ian Carter and Mathew Kramer have advocated the concept of “pure negative freedom,” pursuant to which I am only unfree to do something if other people make it physically impossible for me to do it. Under this concept the gunman who says, “Your money or your life” does not make me unfree to keep my money, since I still have a choice.7 Of course, they will all concede that the gunman does reduce my freedom, since he deprives me of the opportunity to keep both my money and my life, and therefore reduces my freedom in comparison to what would obtain in his absence. To use Carter’s example, in many countries that are thought to deny their citizens free speech, the citizens are free to criticise their government; what they are not free to do is criticise their government and remain out of prison. They have freedom of speech, just no freedom after speech.8 In most negative freedom theories (in particular those of Carter and Kramer), positive freedom (in the sense of ability) does play a role in determining how free a person is said to be. They are nonetheless properly regarded as negative liberty theories because of the unique role these theories assign to limitations on freedom that are imposed by other people. One major goal of theorists of negative freedom is to present a definition of free­ dom that will permit us to compare states, societies, etc. in the amount of freedom they possess. As the title of Carter’s book (A Measure of Freedom) suggests, he is interested in a definition of freedom such that we can make such comparisons. One problem with this effort, however, is that it is difficult to believe that any purely fac­ tual account of how much freedom we have can ever capture what we really want from freedom. To use Charles Taylor’s well-known example, Communist-era Alba­ nia could be said to be freer than Britain because although the former restricted free speech, freedom of religion and similar liberal rights, it had far fewer traffic lights.9

5 Hart 1955.

6 Of course, Hobbes famously did advocate this view. See Skinner 2008a.

7 Actually in my view this is a bad example, since if the gunman is serious he presumably will shoot

me if I refuse to comply and then take the money anyway, so in no event will I keep my money. Even if this is not true and he only shoots me, it is absurd to say that I get to keep my money if I am dead. But Steiner et al. use this example so I will ignore this complication; it is clear that examples where I really do have a choice could be readily constructed. 8 Carter 1999, p. 219. In fact, of course, many such governments will also prevent their citizens from speaking at all, or at least from reaching an audience, and thus limit their freedom even in the minimal sense. 9 Taylor 1979. One response to this example is to argue that traffic lights, if well designed, do not reduce freedom at all, but rather increase it, as limitations on movement caused by gridlocked traffic are every bit as much restrictions of freedom as limitations imposed by traffic lights. A better example might be the argument that Mussolini actually increased total freedom in Fascist Italy by making the trains run on time, despite imposing restrictions on freedoms most regard as more sig­ nificant. See Harbour 2012, p. 200.

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In his book The Quality of Freedom, Matthew Kramer acknowledges this difficulty and concedes that any useful measure of freedom will have to weight freedoms in accordance with their significance.10 He also concludes that we need a trivalent con­ ception that distinguishes three possible states: “free” for those things that I am both able to do and not prevented from doing, “not free” for those things I am unable to do and “unfree” for those things that I am prevented by others from doing. Closely related to this goal is that of avoiding a “moralised” definition of free­ dom; that is, a definition pursuant to which whether an action counts as dimin­ ishing one’s freedom hinges on whether it is justified. Among others, Robert Nozick is accused by a number of theorists of offering a moralised account (in his case it is of voluntariness, not freedom, but the point is the same). On Nozick’s account, for example, a person limits another’s freedom only if he did not have the right to act as he did.11 However, this has the implication that a prisoner who is justly imprisoned for his crime remains free, which is absurd. But more importantly, a non-moralised account of freedom is needed if one wants to justify a state as better because it has more or better distributed free­ dom, as any freedom-based argument that is based on a moralised account of freedom then becomes circular.12 However, treating threats that do not prevent actions but merely make them less eligible as not rendering the subject unfree is highly implausible, and not necessary to obtain the analytical benefits. It is simply not in accord with ordinary usage to maintain that I am free to perform an action if I am credibly threatened with immediate execution if I perform it. While in such a situation I can of course still do the action, saying I am still free to do it amounts to saying that only total restraints on freedom are restraints at all. It is far more plausible to say that my freedom is restricted if my action is made either impossible, more difficult or less eligible by the actions of others.13 The strength of negative freedom accounts is their analytical rigour. As refined especially by Carter and Kramer, these accounts go far towards specifying an empirical definition of negative freedom that does not depend on disputed views in political philosophy over rights, values or other morally loaded terms. This is important because even though we will ultimately have to wrestle with such matters, it at least helps if we can agree on the facts, and having a valuefree concept of freedom might aid in that conceptual clarificatory task. It is thus a project well worth undertaking. However, it is not likely to tell us much about

10 Kramer 2003, pp. 425–473. 11 Nozick 1974, pp. 262–264. This account has more merit as an account of coercion, where it does indeed coincide with most of what the law characterises as coercion. See Wertheimer 1987. 12 See Cohen 1995, pp. 55–61, Carter 1999, pp. 70–71. 13 Swanton 1992.

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what freedom really is and why we value it. For that purpose the Republican account may be more promising.

Republicanism The Republican conception of freedom as articulated by Philip Pettit and Quen­ tin Skinner is itself a variant of negative freedom, in that it focuses on limitations on my ability to act that are imposed by other human beings. For Pettit and Skinner the opposite of freedom is domination, which consists in one person’s capacity to interfere arbitrarily in the actions of another. For them, Republican freedom differs from pure negative freedom in two primary ways. First, the Republican conception holds that one person may actually dominate another even though he never actually interferes with any action by that other, normally because the other alters his behaviour to avoid such interference. In an example both use frequently, a master may never in fact do anything to restrict his slave’s freedom if the slave complies with the master’s wishes because he knows that his master would intervene if he did not. They argue that it is not enough that there is no actual interference; so long as such interference is pos­ sible, it may compromise the freedom of the slave. Second, they argue that actual interference by one person with another may not violate his liberty if the interference is not arbitrary. A number of readers initially read this suggestion as essentially moralised; i.e. interference that is justi­ fied does not restrict a person’s freedom, while interference that is not justified does.14 This of course leads to all of the difficulties with moralised definitions of freedom that lead advocates of negative freedom to reject, for example, Nozick’s theory. However, Pettit at least has made clear several times that he does not use “arbitrary” in this way. Rather, he means by arbitrary “interference that is not forced to track the avowal-ready interests of the interferee.”15 His primary example of the type of interference that is not a violation of Republican freedom is the tying of Ulysses to the mast by his sailors to prevent him from succumb­ ing to the Sirens’ song. This means that whether interference is arbitrary is a purely factual matter, not a matter that depends on the resolution of disputed issues of political morality. The interferee’s own preferences determine whether interference is arbitrary.16 Carter and Kramer have both argued that their theories of negative freedom can accommodate the insights of the Republicans, mainly by including the idea of jointly possible freedoms as in their analysis of the gunman (while he does

14 See McMahon 2005.

15 Pettit 2006, 2008.

16 In Pettit 2012, Pettit retains this definition. He then goes on to take it back by arguing that

a restriction that is adopted by a suitably democratic process is not dominating. This argu­ ment is both complex and highly implausible, but discussing it would take us too far afield.

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not make you unfree to keep your money, he does make you unfree to keep both your money and your life) with a probabilistic account of interference (i.e. a 50 per cent chance that someone will interfere with your actions reduces your freedom by one half what an actual interference would).17 However, Skinner and Pettit have both urged that this reply misses the point: to the extent that it is your choice whether I can perform an action, I am under your control, and this fact is not adequately captured by a probabilistic analysis of what happens in the world.18 As Pettit argues, what is critical about freedom is the extent to which my actions are up to me rather than you; domination places one person under the alien control of another.19 It is of course implausible to demand that any state or society make interfer­ ence by one person in the actions of another completely impossible; if the Republican theory of liberty demanded that, it would be hopelessly utopian. But freedom is not plausibly regarded as an all-or-nothing matter, and it is not at all implausible to say that I am free to the extent that I am protected against arbitrary interference in my actions by others. By emphasising the extent to which what I do is determined by my as opposed to your choices, the Repub­ lican view seems to capture better what is valuable about freedom. On the first distinction between the Republican and the pure negative freedom view, there­ fore, Republicans seem to have a point. Although Pettit’s recent clarifications of when an interference is arbitrary are helpful, it is not clear that his view as so clarified is really consistent with Republican theory as historically and currently expounded by others who call or called themselves Republicans. It seems clear that they understood by arbi­ trary something different from Pettit’s idea, under which only my own values determine whether an interference is arbitrary. For example, if I hold a sexist view of marriage pursuant to which I am entitled to control my wife, the state interfering with my doing so will count as a restriction of freedom on Pettit’s view since it does not track my avowal-ready interests, although of course a justified one.20 Indeed, the classical Republican view seems to be that governmental actions with a suitable democratic authorisation are ipso facto not arbitrary. Classical Republicans contrasted arbitrary power with dis­ cretionary power: if the person interfered with was controlled by law so that

17 Carter 2008, Kramer 2008. Both are largely recapitulations of arguments made in their respective books—Carter 1999, pp. 237–245; Kramer 2003, pp. 125–148. 18 Skinner 2008b. 19 Pettit 2008, pp. 120–125. 20 Pettit 2006, pp. 282–283. In Pettit 2012 he tries to resist the conclusion by arguing that suit­ ably imposed democratic restrictions do not restrict freedom, but that is totally implausible; it is quite clear that a majority can restrict my freedom by passing a law I disagree with. Pettit’s view comes dangerously close to the view that any justified restriction of freedom is not a restriction of freedom at all, something we should reject for the same reasons we should reject moralised views of freedom.

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the interferee was not subject to interference at the interferer’s discretion then the interference did not diminish freedom.21 Pettit sometimes suggests that an interference is not arbitrary if it tracks the interests people share as citizens.22 But this assumes an unlikely degree of cor­ respondence between our interests as individuals and our interests as citizens. If something does not track my individual interests, the fact that it does track my shared interests does not make it justifiable unless I myself agree that the latter interests outweigh the former. It is implausible to suggest that justified laws do not interfere with my freedom; every bit as implausible as to suggest that crim­ inals who are justly punished are really free.23 On the second point of diver­ gence between Republican theories and pure negative freedom views, the latter seem to have the better of the argument. However, I will suggest below a modification that captures what I believe is legitimate in this second point of divergence from the Republican perspective.

Kantian freedom Although Kant discusses other ideas of freedom in his earlier works, his final views seem to be those set forth in his Metaphysics of Morals, and particularly in the part referred to as the Rechtslehre, or Doctrine of Right.24 For my purposes I will take the following quote as encapsulating Kant’s definition: freedom (independence from the constraint of another’s will), insofar as it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity.25 There is of course a large literature on Kant (although only recently much on the Rechtslehre); in what follows I will mostly follow the views of Arthur Ripstein in his fine book Force and Freedom in my discussion of the Kantian view.26 As Ripstein notes, there is a close relationship between the above definition and the Republican theory of freedom.27 The two theories have similar

21 Skinner 2008a, pp. 86–88. This is similar to F.A. Hayek’s theory in Hayek 2006, under which limitations on one’s actions that are imposed by a law that is clear and knowable in advance do not count as limiting freedom. This is implausible: knowing the law in advance certainly diminishes the extent to which it limits freedom by providing a person with an opportunity to plan around the limitations he faces, but it nonetheless limits his freedom, although less than a law that grants discretionary power to an official. 22 Pettit 2004.

23 Pettit 2006, p. 136.

24 Wood 2002.

25 Kant 1965, pp. 43–44.

26 Ripstein 2009.

27 Ibid., pp. 42–43.

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motivations in the idea of opposing domination. The Kantian concept is closely linked to what Ripstein refers to as “equal freedom” but which I prefer to refer to as “reciprocal freedom.” The underlying idea is that a law that prevents me from infringing on your freedom does not count as an infringement of my free­ dom. For Kant it is rather a “hindering of a hindrance” to freedom, which con­ stitutes no restriction at all. An example might make this clearer. Under the pure negative freedom con­ ception, if the law prevents me from murdering you that is a restriction of my freedom, although presumably a justified one. For Kant, however, it is not a restriction of freedom at all, since my asserting a right to murder you is incon­ sistent with you having a right to freedom, since I am constraining your will by killing you. Under the Kantian view we each have sovereignty over our own bodies and our property; I have a right to swing my fist that ends where your nose begins. The difficulty with this idea is that at first glance it seems to be moralised; it seems dangerously close to the view that justified restrictions of liberty are not restrictions at all. Although it seems odd to view preventing me from killing or raping someone as a restriction on my freedom, surely we don’t want whether something counts as a restriction of my freedom to hinge on whether it is all things considered a justified restriction. Among other things, its justification may hinge on how much it restricts my freedom compared to how much it lib­ erates others, and that inquiry is hardly one to be settled by definition. It is worth remembering, though, that for Kant, freedom can only be permis­ sibly restricted for the sake of freedom. Louis-Philippe Hodgson summarised Kant’s position well:28 [N]o competing rights can weigh against the demands of freedom because all other rights have to be acquired consistently with the original right to freedom. It follows that … there can be no trade-off between freedom and values like prosperity, security or happiness. Human beings have an innate right to do anything that is consistent with the freedom of other rational agents. Under Kant’s system, therefore, we do not have to weigh various possibly incommensurable considerations before deciding whether something is an acceptable restriction on freedom: the only issue is whether my having a right to do what I want to do is consistent with everyone else having a similar freedom. The idea of defining freedom in such a way that everyone’s freedom can co­ exist without conflicting, if it can be done, is an attractive one, whether or not it coincides in every case with ordinary usage of the word “freedom.” Of course Hillel Steiner, an arch-advocate of the pure negative freedom view, is also a big fan of a system of rights where everyone’s rights are consistent with

28 Hodgson 2010, p. 794.

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everyone else’s (or “compossible”).29 Steiner would not assert, though, that this compossible set is part of the definition of freedom; rather, he would acknow­ ledge that stopping me from killing you is a restriction of my freedom, but one that is necessary to achieve a regime of equal freedom. The tension here reflects the desirability of analytical precision against the need to find a definition that reflects the positive valence of the word “freedom” in our political vocabulary.

The capability approach The capability approach championed by Amartya Sen and Martha Nussbaum essentially says that one is free to do what one is able to do. Although not all discussions of the capability approach stress it as a view of freedom, Sen and his followers do so in several places.30 It is thus a type of positive freedom, probably the most plausible positive freedom account available.31 The capability approach has considerable initial plausibility; after all, why should anyone care about being free to do things he is unable to do? But I have already hinted above at why we should reject this approach; it confuses too much two distinct ideas. Even if what we ultimately care about is what we can do, we need to be able to distinguish things we are unable to do because we lack the ability to do them from things we are unable to do because others pre­ vent us from doing them or threaten us if we do them. We already have a good word for capability. At the same time, we should be clear about why we are drawing the distinc­ tion we are. It is not that it is worse to be prevented from doing something than to be unable to do it. Indeed, arguably it is the other way around. It is worse to be unable to walk because I am paralysed than to be prevented by someone from walking, even assuming the two last the same length of time, since I retain the possibility of persuading my captor to release me. This idea holds, I believe, not just with respect to freedom. Being killed is not worse than dying a natural death (assuming the two deaths are equally pain­ ful or painless and not otherwise distinguishable). Rather, the difference between them is that one is unjust and the other isn’t. If we are thinking conse­ quentially, we have no reason to distinguish them. Consider an example suggested by Victor Tadros.32 You desperately need to travel somewhere to obtain essential medicine for your seriously ill child, and have a choice of two roads. Along one road are robbers who use wolves as their weapons: they have the wolves attack and kill travellers and then steal their

29 Steiner 1977.

30 See Sen 1999, Alkire 2002.

31 Van Parijs 1997 recommends promoting “real freedom,” by which the author means the abil­ ity to do whatever you want to do, which is similar to capability. There are subtle differences between Sen’s approach and Van Parijs’s, and I will concentrate on Sen’s since it is much more prominent in the literature. 32 Tadros 2011, pp. 105–108.

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money. Along the other road there are wild wolves. Assume you have no money to be stolen. In choosing which road to take, it seems clear to me you should choose based on which road has the lower probability of being attacked by the wolves. You should ignore the fact that being killed by the robbers is an injust­ ice while being killed by the wild wolves isn’t. For this reason, it seems to me that the capability approach is the one that consequentialists should choose. It makes no sense to maximise negative free­ dom (and Republican freedom is a variant of negative freedom, as Pettit readily concedes); if one is going to maximise something, it is what one is able to do;33 there is no consequentialist reason to distinguish between limitations on free­ dom that are imposed by other persons and those that result from natural occurrences. Pettit seems to recognise this on occasion. He writes: “if our interest is in outright freedom, then social obstacles to freedom will be no more important in themselves than natural obstacles.”34 He then goes on to explain that focusing on social freedom (i.e. restraints imposed by other people) lets us think of free­ dom as chooser-based rather than choice-based.35 I agree completely. We focus on the chooser out of respect for his right to live his own life as he chooses, not because we are trying to maximise anything. We recognise a duty not to do cer­ tain things to other people, without recognising either a duty to save them from natural occurrences that do those things to them, or even to stop others from doing those things to them. Negative liberty is an inherently deontological con­ cept, and thus one that it makes no sense to maximise. We distinguish restraints on our freedom by other persons from restraints that happen naturally not because the former are worse but because they are unjust—because they violate a mutually beneficial social rule. We have an obliga­ tion not to limit the freedom of others that is different from, and far stronger than, our obligation to promote their capability. But this is inherently not a consequentialist approach. If we are trying to maximise something, it should be capability rather than Republican freedom. But as I argue below, we should not be maximising at all.

Constructing an adequate approach Some of the difficulty discussions of freedom present is undoubtedly due to the diverse ways freedom is used in our language. All of the above theories of

33 That is, if one seeks to maximise a type of freedom at all. Most consequentialist theories seek to maximise something more inclusive like happiness or well-being; it is far from clear that freedom in any form is a sensible maximand. But the point in the text is that negative freedom makes no sense at all as a maximand. My own view, expounded below, is that freedom is essentially a jurisdictional concept, and it no more makes sense to maximise freedom than it does to maximise jurisdiction. 34 Pettit 1999, pp. 131–132. 35 Ibid., p. 133.

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freedom have a basis in our usage, and it is unlikely that linguistic considerations will get us far. One distinction that is sometimes drawn that reflects this diver­ sity in usage is the distinction between “liberty” and “licence.” The most wellknown such instance is in Locke’s Second Treatise of Government:36 But though this be a state of liberty, yet it is not a state of licence; though man in that state have an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preserva­ tion calls for it. One difficulty with this suggestion is that it implicitly adopts a negative meaning of “licence”; it refers to any freedom that is not consistent with a similar free­ dom for others. We need a word that is neutral on this score; we need to be able to describe the fact of not being prevented from doing something without prejudging the desirability of the prevention. But we also need a word to reflect those freedoms that are compatible with a similar freedom for others. It would be nice if we could all agree to use “freedom” for one of these uses and “liberty” for the other. But despite some attempts to suggest the contrary,37 it seems clear that predominant usage treats these words as syn­ onyms, and that usage is unlikely to be changed by this or any other philosoph­ ical tract. Of course, we could stipulate such a distinction, but it is far from clear that this would aid understanding at the end of the day. In light of this, and since we already have a good word for capability, I propose to keep the word capability to refer to what we are able to do, and reserve freedom for things that we are not prevented by others from doing. This leaves pure nega­ tive freedom, Republican freedom and Kantian freedom as candidates. And although the pure negative account can in some cases be useful as a value-neutral measuring device, it seems clear from the foregoing that it will not serve as a proper basis for an account of what we value in freedom. Moreover, because we will undoubtedly seek to find, if possible, an account of freedom where one person’s freedom can be consistent with that of others, I propose to restrict our examination for now to the Republican and Kantian accounts. Although Ripstein38 suggests that the Kantian conception and the Republican one are similar, he does not discuss a subtle but important difference between the two. On the Republican view, a restriction on your activities that is not arbi­ trary because you approve of it is not a restriction of your freedom. On the

36 Locke 1952, para. 6.

37 Pitkin 1988 suggests that “liberty” refers to the rule-governed idea while “freedom” is the

more general concept. If this difference in usage ever existed, which I doubt, it no longer exists today. In any event, as Pitkin notes, this choice is only available in English; no other language retains these separate words, which reflect the separate German and French roots of the English language. 38 Ripstein 2009, p. 43.

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Kantian conception it counts as a restriction of freedom unless it qualifies as a hindrance of a hindrance; i.e. unless it prevents or restrains you from restrain­ ing someone else’s freedom. The two are not the same. For example, on the Kantian view a tax restricts my freedom even if I approve of it since it restricts me from spending my money as I wish. This would not count as a restriction of freedom on the Republican view because it tracks my interests as I judge them. A second possible distinction, at least on Pettit’s version, arises from his con­ sequentialist reading of Republicanism. On Pettit’s theory a given measure (for example, a forced transfer of money from one person to another) might increase total freedom if the recipient’s ability to resist domination was increased suffi­ ciently to offset any reduction in the same ability of the party from whom the money was taken. The Kantian view would not countenance such a trade-off between one person’s freedom and another’s. My freedom can only be limited to prevent or remove my own actions that restrict or infringe on another’s free­ dom. Stated otherwise, on the Kantian view one can prevent or undo an action of A that restricts B’s freedom, but one cannot restrict A’s freedom to enhance B’s ability to resist restrictions of his freedom by C. Doing so would be using A as a means to benefit B. This distinction between the Kantian and Republican approaches to freedom seems to be just a variant of the general dispute between consequentialism and its critics.39 Pettit of course “wrote the book” on this dispute,40 and unsurpris­ ingly sticks to his consequentialist guns (although making Republican freedom the value to be maximised is in part motivated by Pettit’s view that doing so avoids many of the counterintuitive consequences of consequentialism).41 One distinction consequentialists such as Pettit stress is that between promoting a value and respecting it, with consequentialists stressing the irrationality of respect­ ing a value when doing so actually results in less of it. Pettit’s arguments on this score seem to be quite strong; it seems to me incoherent to respect a value in ways that will actually result in less of that value, absent other consequentialist reasons to do so. Of course, frequently there will be such reasons: for example, a compelling reason to prohibit killing one person to save two from being killed is that otherwise the emotional taboo against killing will be weakened, with consequences far worse than the two lives that will not be saved. This consideration can be fully captured in a sophisticated version of consequentialism. I argued in Chapter 3 that we should reject consequentialism because we cannot legitimately combine our interests in the way consequentialism requires. We cannot trade one person’s freedom off against another, except where doing so is mutually beneficial. This also means we have no general duty to promote the freedom of other people, any more than we have a general duty to promote others’ welfare. Our duty is not to restrict the freedom of others. We may, and

39 See, e.g., Sheffler 1988. 40 Pettit, Baron and Slote 1997. 41 Braithwaite and Pettit 1993.

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in many cases should, promote the freedom of others, but there is no general duty to do so. This is of course a variant of the general Kantian position, in which we have strong and enforceable duties not to harm others but only imperfect and unenforceable duties to aid them.42 We saw in Chapter 4 why this is true of the general harm versus benefit distinction. Our duties with respect to the freedom of others are no different: duties not to limit the free­ dom of others are likely to be mutually beneficial, while duties to promote the freedom of others are likely to benefit some at the expense of others.

Kantian versus Republican freedom To decide which account of freedom is best, conceptual analysis will not take us far. Indeed, we should not expect to draw normative conclusions from concep­ tual premises, and should not take much comfort from a normative theory that is justified mainly by how we use language. We must decide why we value free­ dom, and what it is we want our analysis of freedom to give us. For me, the value of freedom is based on the value of autonomy, on being in Joseph Raz’s words “part author of my life.”43 As Mill put it, “the only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it.”44 Our concept of freedom must reflect this critical fact. On the view I am advancing, freedom is not central to justice because it is more important than other values. People can and do properly trade off their own freedom against other values all the time. When I take a job or get married I limit my freedom to take other jobs or marry someone else. This is not a restriction of freedom but rather an exercise of it. Freedom is mainly about choice among values; to say that I am free is to say that I choose the values that will govern my life and how they relate to other values. I can trade my own freedom off against other values, but I have no right to trade your freedom off for other values, and neither do you have the right to trade my freedom off against other values. Freedom is essentially jurisdictional; it determines who gets to make the value trade-offs that are an inevitable part of life, by saying that I decide which values I will live by and you decide which values you will live by. This jurisdictional account of freedom is fully compatible with subjecting the choices people make to criticism. It is, to use Jeremy Waldron’s terms, a “right to do wrong,”45 in the sense that you are the one who is entitled to make the choice although others are free to criticise the choice you make. It thus separ­ ates the question of what to do from the question of who decides what to do,

42 43 44 45

See Taylor 2004. Raz 1986, p. 369. Mill 1947, p. 18. Waldron 1993.

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and states clearly and unequivocally that we each get to make our own choices as long as we allow others the same right. If this is right, the important distinction between the Kantian and Republican views is that the latter permits one person’s freedom to be restricted to increase another’s, while the Kantian view only permits “hindrances of hindrances” to free­ dom. On this front the Kantian view is more consistent with the approach advanced in Chapter 4. But I also believe it is the more attractive approach generally. Why is it that freedom can only be limited for the sake of freedom? Funda­ mentally it is because no one has the right to impose his values on anyone else; we each have the right to choose the values that will govern our lives. Any limi­ tation of a person’s freedom for the sake of another value involves imposing on that person a value he may not share. As Hodgson46 puts it: For any purported objective value one might invoke to justify using force against a rational agent … the agent can always ask why should I accept that as a justification? And for values like the greater good or the agent’s happiness, once again there will be no conclusive answer to give. We may think that the agent should accept a justification of coercion grounded in such values … but we cannot show that she has to accept it in so far as she is rational. In short, the justification does not adequately engage the viewpoint of the person qua rational agent. The only response that I can see to this argument would be to show that there are values that a rational agent must accept. But we saw in previous chapters that this is implausible.47 An agreement that I will live by my values, and you by yours, is the obvious choice once we realise that values are subjective and that imposing them on others is a negative-sum game. The Kantian position also fits well with the idea, stressed by realist thinkers as diverse as John Rawls,48 Gerald Gaus49 and Thomas Nagel,50 that no one can be coerced unless the coercion can be justified to that person based on his own values. One need not accept the full Kantian position in ethics (as I myself do not) to con­ clude that Kant is right about freedom. Hodgson again:51 [E]ven if one embraces full-fledged realism about value, the question remains open whether it is acceptable to impose specific values on someone through force. One might very well think that a person should get to decide for herself what ends she is to pursue, not because her rational nature is the source of all

46 47 48 49 50 51

Hodgson 2010, p. 799.

Mackie 1984.

Rawls 2001.

Gaus 1996; see also Gaus 2011.

Nagel 1995, p. 159.

Hodgson 2010, p. 802.

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Sovereignty and freedom authority but simply because, when all the relevant values are taken into account, a competent adult is entitled to make her own choices, even when that means making her own mistakes.

If any restriction of freedom must address the actor’s own values, can the actor reject a restriction based on someone else’s freedom? No, because the actor is invoking his own freedom to preclude someone else from coercing him. I cannot consistently say that you are prohibited from coercing me if I am not prepared to accept a prohibition on similarly coercing you. There are other reasons for preferring Kant’s approach to Pettit’s, ably developed by Hodgson.52 First, Kant’s approach, which is keyed to an agent’s freedom rather than his interests, rules out paternalism more clearly than does Pettit’s. Second, Kant’s view avoids the difficulty with the Republican view, which seems to demand too much assurance that no one can interfere with one’s freedom before one is con­ sidered free. It is simply not plausible to say that I am unfree so long as there is any possibility of your successfully interfering with my freedom; we are all vulnerable to muggers and similar criminals, and could not be rendered invulnerable to them at acceptable cost to our other freedoms. If we take account of all of these considerations, we are led to a modified account along the following lines. First, no one is entitled to restrict or otherwise limit another person’s freedom unless his doing so is necessary to prevent or undo that person’s restriction of another’s freedom. But this principle can be relaxed to permit reciprocal restrictions of freedom that are beneficial to all concerned. I have elsewhere called this idea the Reciprocal Sovereignty Principle.53 Although it has a partially consequentialist motivation, this Principle is essentially deontological because it does not permit one person’s freedom to be limited so as to increase someone else’s freedom. Rather, it only permits limitations of freedom that are beneficial to all concerned or that directly hinder a hindrance to freedom.

Freedom as independence In the excellent article “Freedom as Independence” by Christian List and Laura Valentini,54 the authors argue for a new conception of freedom (free­ dom as independence) that is an amalgam of the Republican view and the negative liberty view. Essentially they argue, for many of the same reasons as this book, that the Republican conception of freedom is superior to the negative liberty view on the first dimension. However, they argue that we should reject the second component of the Republican view (that only arbi­ trary restrictions of liberty count), essentially because that component is

52 Ibid., pp. 808–819. 53 See O’Brian 2011. 54 List and Valentini 2016.

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55

inescapably moralised, and we should reject moralised conceptions for free­ dom for reasons again similar to those advanced here. I would endorse a great deal of what List and Valentini say, and agree that their conception of freedom as independence is superior to either the Repub­ lican view or the negative liberty view. However, for the reasons stated above, I think they are too quick to reject the possibility of a non-moralised account of arbitrariness, along the lines originally defended by Pettit but now apparently abandoned. While we should reject a conception of freedom in which democrat­ ically adopted restrictions on freedom are not restrictions at all, if we adopt Pet­ tit’s earlier account to include the idea that restrictions on freedom that the person in question himself endorses do not limit freedom, we then have an account that is both Kantian in spirit and suitably robust in its requirements. I would therefore argue that the approach defended here is even better than that of List and Valentini. It is undoubtedly true that there is one sense of freedom in which it consists of not being subject to any rules. But in a crowded world such freedom may not be very realistic. What I am arguing here is that one is free to the extent that one is only subject to rules that one approves of. Of course, even that is not perfectly achievable, but it reflects an important aspect of freedom that an adequate con­ ception should capture. The conception advocated here does that, and in doing so combines the best features of the approaches discussed in this chapter.

Conclusion Returning now to the Kantian and Republican conceptions of freedom, it should be clear that the Kantian conception is closer to what we are seeking, but requires modification. While Republicans go too far in permitting one per­ son’s freedom to be restricted simply to increase another’s, the Kantian concep­ tion is too narrow if it only permits “hindrances of hindrances” to freedom. To be plausible, a conception of freedom must permit restrictions of freedom that are reciprocally beneficial to all concerned. This idea captures what I believe is the valid idea behind Pettit’s contention that restrictions of freedom that track the avowal-ready interests of the interferee do not count as restrictions of free­ dom. The Reciprocal Sovereignty Principle does this, and is the maximum justi­ fiable emendation to the Sovereignty Principle. Any further relaxation of the definition slides too far in the direction of saying that any justifiable restriction of freedom is not a restriction at all, as well as permitting the freedoms of some to be restricted to promote the freedoms of others.

55 The same is true of a recent suggestion that a lack of ability should be viewed as an unfreedom depending on whether the person in question would have the ability in question if the best available distribution of abilities were realised. See Schmidt 2016. This makes our understand­ ing of freedom hostage to a moral position on distributive justice, something on which agree­ ment is, and is likely to remain, almost hopeless.

6

The Principle of Cooperation1

The predominant view among political theorists seems to reject the idea that citizens have obligations to obey the laws of their governments,2 although there is a significant body of contrary opinion. I have long been sympathetic to the majority view, but have recently concluded that this view is mistaken, at least for most citizens of modern Western democracies. However, I conclude that those of us, among whom I number myself, of an essentially libertarian or anarchist persuasion have no such obligations. Along the way, I will also address the recent resurgence in Kantian arguments for political obligation, which I believe raise closely related issues and lead to similar results—political obligations for those who are broadly content with the status quo but not for those who prefer very different arrangements. In his book Force and Freedom,3 Arthur Ripstein has attempted both an exposition and a defence of Kant’s approach to political philosophy, including his approach to political obligation. I will take Ripstein’s account of the Kantian position as authoritative for my purposes, recognising that there are undoubt­ edly places where other Kant scholars may have different readings; my purpose is to arrive at a correct theory, not an exegesis of Kant.4 The central problem for Kant is this: how can one person’s freedom (in the sense of independence from the constraint of the will of others) co-exist with the similar freedom of others? For Kant the state is the answer to this question. By subjecting us all to an omni-lateral will (a will that speaks on behalf of all of us), it solves three problems that would otherwise not be solvable: the indeter­ minateness of each of our particular rights (in property at least), the lack of

1 This chapter is based in part upon O’Brian 2019.

2 Classic accounts include Simmons 1981, Green 1990, Raz 2009. For a good summary of the

arguments each way, see Wellman and Simmons 2005. For a recent review of the arguments which concludes that none of the usual arguments for political authority succeeds, see Wendt 2018. 3 Ripstein 2009. 4 For one such account, see Weinrib 2019.

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assurance that you will respect my rights if I respect yours and the general impermissibility of my imposing duties on you unilaterally. For Kant, the answer to the problem of political obligation flows directly from his account of what the state does. Essentially, it is only in a state where my actions are governed by law that I can rightfully assert property and other rights that go beyond my basic right to bodily integrity. For Kant this is a conceptual matter, not a factual one; I cannot rightfully call an external object mine if there is no legal system that separates what is mine from yours. Because assertions of rights necessarily involve the possibility of coercion against those that do not accept them voluntarily, Kant argues that they are inconsistent with each person’s right to be independent of coercion by others unless they are authorised by an omni-lateral will. This argument of Kant viewed in this way seems to be seriously overstated. For one thing, it entirely overlooks the possibility that property rights could be established and maintained by convention, along the lines of accounts by Hume, David Lewis5 and others. Animals seem to use similar conventions in their tendency to respect (within limits) each other’s territories, and there are good evolutionary game theory explanations for why a tendency to do so might evolve and persist.6 It is likely that even in the absence of a state, most humans would observe a similar convention because it is overwhelmingly in their inter­ ests to do so.7 As I argued in Chapters 3 and 5, compliance with a convention that is in our mutual interests is not an objectionable imposition of the freedom of one person on another. Of course in the absence of a state, compliance with the rights of others is likely to be less than perfect, but it is also likely to be less than perfect even where states exist; at most the difference is likely to be one of degree, not of kind.8 Assurance problems, of which Kant’s argument is an example, do not provide us with a conceptual or categorical reason to think that we must agree to a state; at most they provide a relevant consideration, one that is subject to being outweighed by countervailing considerations. One obvious countervailing consideration is the familiar question of quis custodiet ipsos custodes: is not the danger that the state itself will fail to protect our property, and will even confis­ cate it, enough to outweigh any marginal increase in the extent to which prop­ erty rights are respected under the state? Similar considerations weigh against the remaining argument for the sovereign given by Kant: that it renders property rights that would otherwise be indeter­ minate more determinate. But again this is only a matter of degree, not of kind; it is quite likely that people could come by a conventional process to a reasonably determinate understanding of their rights, and also come to

5 6 7 8

Lewis 1969. For a recent recasting of this argument, see Marmor 2009.

Smith 1982.

See Sugden 2005.

See Tadros 2011, pp. 210–212.

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conventional methods of resolving disputes as to the exact scope of those rights peacefully when they arose. Kant’s argument hardly shows that we cannot intel­ ligibly speak of rights outside the state or that we must support a sovereign on pain of contradiction; at most they point to considerations that might favour a sovereign in some circumstances. Kant’s arguments do suggest, however, one difficulty for the familiar Lockean theory, sometimes relied on by philosophical anarchists,9 that in a state of nature anyone may enforce the “law of nature” (a law we may assume is conven­ tional for the benefit of those, like myself, who are deeply suspicious of concepts of “natural law” that are based on anything more). The difficulty is that unilat­ eral enforcement by A against B of B’s obligations amounts to a unilateral imposition of A’s will on B if B disputes the existence of the obligation or its violation. The difficulty is that this argument at most justifies a requirement of a neutral decision-maker to decide disputed issues of fact and possibly law, not necessarily the state. Although one core function that states traditionally provide is that of adjudicating disputes over rights violations, there is no reason why such a service cannot be provided privately.10 Indeed, this is a common shortcoming of most arguments that proponents of the state proffer: they simply assume that functions that are currently provided by states can only be provided by states, when in fact in many cases states have displaced private provision that worked better than the state provision that replaced it.11 These arguments are, I believe, decisive against any claim that government is categorically or conceptually necessary to making the use of coercion rightful. Of course by themselves they do not demonstrate that states are illegitimate either: even if states are not the only way something can be done, they could turn out to be better at what they do than the alternatives. Establishing this would, however, require a detailed examination of the costs and benefits of state provision compared to the alternatives, something most theorists shy away from because it requires us to venture beyond our armchairs. This defect is also characteristic of many non-categorical arguments for the duty to obey the law, such as those based on the Principle of Fairness. They argue that the sovereign provides important or even vital benefits that no rea­ sonable person could not value, and from this conclude that we must therefore obey the laws of the state we happen to live in, usually with some qualifications along the lines of “the reasonably just laws of a reasonably just state.” There are two clear problems with this strategy. First, it overlooks the very significant costs that come with states, costs that go well beyond taxes to include wars,

9 E.g. John Simmons; see Wellman and Simmons 2005, p. 192. 10 See, e.g., Benson 1990. 11 For a strong argument that this is true in the United Kingdom with respect to the welfare state, see Bartholomew 2004. For a similar argument with respect to the United States, see Shapiro 2007.

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prisons, police brutality and inefficient or even disastrous regulation. Second, it largely ignores the existence of non-state alternatives, alternatives which of course are not perfect either but in many cases may be better than the state.12 For example, most of us would no doubt agree that having a state that pro­ hibits murder is a good thing. Although we give up the “right” to commit murder, we gain far more from having other people prevented or deterred from killing us. This is true even though the law will invariably make mistakes and occasionally imprison people for murders they did not commit; the only way to avoid this would be to make it so difficult to obtain convictions that the law would be practically unenforceable and lose its deterrent value. But if we con­ sider that a state that can prohibit murder may also enact things like drug laws, which in the view of many, myself included, are both unjust and cause massively more suffering than they prevent,13 it becomes far more debatable whether the costs exceed the benefits. Arguments that discuss only the benefits of govern­ ment without adequately addressing the costs, as almost all arguments by polit­ ical philosophers do, are massively deficient. Or consider another example. Virtually everyone concedes that it is very diffi­ cult to argue that there could be market provision of national defence,14 and that therefore state provision of at least this good may be necessary. A principled pacifist (that is, one who opposes everyone using force in defence, as opposed to those who simply prefer not to fight themselves)15 might not even accept this, but let’s set this possibility aside; it is arguable that such paci­ fists are in truth free riders on the willingness of others to confront wrongdoers with force, who would give up their beliefs (or be wiped out) if actually con­ fronted with their very probable consequences. As George Orwell put it, “Those who ‘abjure’ violence can only do so because others are committing violence on their behalf.”16 It also seems difficult to dispute that the anarchist’s typical methods of providing defence (roughly, a citizens’ militia) would be less potent

12 See generally Simmons 1993, Carter 2001, Huemer 2012. 13 See, e.g., McWilliams 1996, Husak 2002. On the general extent to which the criminal law has been massively overextended in the United States, see Husak 2008, Silverglate 2009. 14 The individualist anarchist David Friedman refers to national defence as “the hard problem.” See Friedman 1989, p. 135. He concludes that it might be impossible to abolish this function just yet, and that in that case a government providing national defence “would be like a gang of bandits who, while occasionally robbing the villages in their territory, served to keep off other and more rapacious gangs” (Ibid., p. 143). This might give rise to obligations to the state for a limited time: if the choice is between being governed by Churchill or being gov­ erned by Hitler, as it was during World War II, we should of course choose to be governed by Churchill. But perhaps when the emergency is over we should return like Cincinnatus to our ploughs and abolish the state. 15 Someone who objects to fighting in a war, but not to paying taxes to fund someone fighting in their stead, is to my mind morally self-indulgent and inconsistent. If it is wrong to do something, it is every bit as wrong to pay someone else to do it. The theorist who saw this most clearly was Henry David Thoreau—see Thoreau 1965, p. 257. 16 Orwell 1953.

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as a defensive force than a standing army with sophisticated weapons that might not be procurable without taxes. But once we remember that a state empowered to defend the country can also do things like invade Iraq without cause, the outcome of the test might not be so obvious. Republicans, American founding fathers and other theorists wrestled mightily with the issue of whether standing armies carried more risks than benefits for centuries. It seems clear to me that reasonable people could differ on this question. More generally, very few anarchists oppose the state because they believe that the benefits provided by states are valueless; rather, they do so because they believe that the costs of states are very high, and that the alternatives are not as bad as is usually thought. Even if refusing to recognise the benefits provided by the state would be by itself irrational, it is far from irrational to conclude that the costs outweigh the benefits. There is a large anarchist literature that does just this.17 Similar problems are presented by a recent attempt at justifying the state by Massimo Renzo.18 He argues that those refusing to support the state undermine its ability to provide the co-ordination functions and similar functions relied on by Kant, and that this actually harms those who support the state. The analogy he draws is to passengers on a boat refusing to row to shore where their refusal means the remainder cannot reach the shore in time; this, he contends, consti­ tutes harming the others, at least where the presence of the dissenters in the boat causes their failure to be able to reach the shore with only some rowing. He might well be right in his hypothetical example, at least if one accepts his stipulation that those who want to require rowing are right that it is necessary. In a real case, the problem is that we will not know if the rowers are right at the time we have to decide. The difficulty with transferring Renzo’s hypothetical boat example to the issue of duties to obey the law is the assumption that states are on balance bene­ ficial, something most anarchists will deny. Although they might concede all the benefits that Renzo, like Kant, ascribes to state enforcement of a common set of rules, they would argue that these benefits are outweighed by the massive harms states inflict when they overstep the bounds19 of these functions, as they inevit­ ably do. One can of course stipulate that they are wrong about this, as Renzo seems to do, but then the argument simply begs the important questions. The other problem this creates is that once we recognise that the argument for the state is a matter of balancing costs and benefits, rather than a conceptual or categorical matter, it is not only no longer a matter suitable for armchair the­ orising, but it is also no longer reasonable to assume that the cost-benefit calcu­ lation will come out the same for everyone. Perhaps the state is justified for

17 See the sources collected in notes 43 and 44 for recent examples. There is of course a large earlier anarchist literature as well. 18 Renzo 2011. 19 Renzo concedes that his argument only justifies a minimal state. Ibid., p. 580.

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those who are conformists, or who are middle income, or those whose desire to control the behaviour of others is strong, but not for those who are rich (they could secure adequate protection for less than their likely share of the taxes) or poor (they are more likely to be the subject of an erroneous charge or convic­ tion, or to lose their breadwinners to incarceration, or to have their crimes pun­ ished severely)20 or nonconformist (they are more likely to have their deviant but harmless behaviour criminalised). And if it is justified for some of us but not all, by what right do those who are net beneficiaries of the state impose it on those who are not?21 Finally, of course, there is the possibility that alternative states to the one you happen to live in would be better than the state you are in. For example, even if the state as it exists, with its drug laws and other monstrosities, is narrowly better than any non-state alternative, another state, one that did not have these defects, might be still better. Why am I obligated to support this state rather than a viable alternative that fares much better on a cost-benefit test? Must I (as a US citizen) support the United States, with its defence budget equal to that of the next eight countries in the world combined,22 and with troops in over one hundred and fifty countries around the world,23 if I would prefer to live in a state that provided defence in a manner similar to Switzerland? An argument that we must obey the state because it provides important benefits simply ignores these possibilities. The final difficulty with Kant’s theory as it stands relates to his idea of an omni-lateral will. This seems to derive from Rousseau’s idea of the general will, and his notion that in obeying the general will we are simply obeying ourselves and therefore lose none of our freedom.24 The difficulties with this idea are familiar; in many, probably most, contexts people have dramatically different interests and values, and only a hopeless romantic could think that by subjecting ourselves to rule by a majority we remain as free as we were before.

20 See Reiman and Leighton 2016. 21 In a number of articles and books Christopher Wellman argues that we may have Samaritan duties to support the state even if it fails a cost-benefit test narrowly for us because of the benefits it provides others. See Wellman 1996, 2001, Wellman and Simmons 2005. Apart from the fact that I deny we have enforceable Samaritan duties, as argued in Chapter 4, it is far from clear that these arguments would work if, as I suspect, those for whom the state fails a cost-benefit test tend to be worse off than most of those for whom it passes such a test, or if the state fails for some of us by a wide margin, since even under Wellman’s theory we are not obligated to make large sacrifices for the benefit of others. The latter idea is the main point of George Klosko’s criticism of Wellman—see Klosko 2003. But Wellman is right that for most of us, a cost-benefit test will consider the effects that states have not just on us personally, but also on those about whom we care, including in many cases strangers. 22 According to President Obama in his 2016 State of the Union address. 23 See https://en.wikipedia.org/wiki/United_States_military_deployments (visited 6 October 2016). This source will suffice for our purposes since the precise number is not important to the argument. 24 Rousseau 1968, p. 60 (Book I, Chapter 6).

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Yet perhaps this last conclusion is too quick. All existing states provide ser­ vices that in modern parlance at least purport to constitute “public goods,” in addition to adjudicating disputes and promulgating rules necessary to make determinate and compossible our respective rights to independence from each other’s wills. Kant’s theory does not provide for public goods, and in many places he suggests that a legitimate government can only act to preserve free­ dom. This would seem to preclude government from acting to provide public goods, at least beyond those needed to preserve freedom.25 If this is correct, it serves to reduce and perhaps even eliminate the main source of conflict in interests and values that serve to undermine the possibility of a truly omni-lateral will. This is because virtually all “public goods” do not benefit everyone, at least if the costs of providing them are considered. Rather, such goods generally benefit some and harm others; the most we can hope for is that the benefits outweigh the harms. To use the language of welfare econom­ ics, they are at best Kaldor-Hicks efficient, not Pareto efficient. Any goods that are truly Pareto efficient (i.e. they benefit everyone more than they cost them) are presumably not a problem, since they will not generate a conflict of interest. For some, however, this cure will be thought worse than the disease. It effect­ ively limits the state to very minimal functions (although not as minimal as those espoused by libertarians like Robert Nozick,26 since at least according to Kant his theory does require the state to provide some support for those unable to meet their basic needs).27 This is likely also true of other leading candidates at justifying duties to obey the state, however: Wellman admits that his theory can only justify a “night watchman” state,28 and Klosko strains to use his theory to justify much beyond law enforcement, national defence and possibly sufficient infrastructure such as roads to permit these functions to be carried out.29 The truth is that states that go beyond minimal states are indeed very difficult to defend. Below I discuss whether and in what circumstances states can justifiably provide public goods. One final difficulty with most existing theories of political obligation is their status quo bias. In his book Political Obligations Klosko makes this explicit when he says that anarchist arguments are unacceptable if they would require us

25 In Ripstein 2009, pp. 232–266, Ripstein discusses roads as an example of something that states provide that might be thought to be public goods but can also be rationalised on the basis of preserving freedom. I doubt that a very extensive system of roads can be justified in this way, but cannot discuss that issue in depth here. 26 Nozick 1974. 27 Ripstein 2009, pp. 270–286. I would dispute this conclusion, as will become clear in Chap­ ters 7 and 10. 28 Wellman 2001, p. 758. 29 See Klosko 2004. In his later book Political Obligations (Klosko 2005), Klosko argues that the Principle of Fairness supplemented with other principles will support the activities of most modern states. I discuss below why I believe we should reject this argument.

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30

to make large changes from current ways of living, but this requirement is implicit in much recent argument in the area. But of course this argument will not move those of an anarchist bent, who for the most part are not particularly happy with current arrangements and will not see their preservation as a sine qua non of an acceptable theory. It should come as no surprise that the state can be justified to those who are more or less happy with their country as it is; what is needed is a justification that can be made good against those who would prefer to live under radically different arrangements.

The Principle of Fairness The Principle of Fairness plays a key role in most current arguments for political obligation. For example, it is the cornerstone of Klosko’s theory, although he has recently admitted that it requires supplementation to yield anything remotely approaching states of the size and scope of present states. And Well­ man’s theory, which begins with a duty of Samaritanism, is also supplemented by the Principle of Fairness. It is thus important to see what work this Principle can and cannot do. Although early versions of the Principle of Fairness required that one do one’s part in any scheme in which others had sacrificed their own freedom of action, this proposal was subject to a devastating objection from Nozick,31 as it would require us to participate in schemes from which we derive little or no benefit when compared to their costs, and would permit others to thrust obliga­ tions on us. There have been various attempts to avoid this problem, the most prominent of which are by Richard Arneson32 and Klosko.33 They differ in detail, but both require that one do one’s share in cooperative schemes for which the benefits exceed the costs to the person whose obligations are at issue. This requirement is sufficient to avoid Nozick’s objection, as a person will not be subjected to a requirement that he participate in cooperative schemes where he prefers the non-existence of the scheme to its existence given the costs to him of participating. This will be clearer if we examine Nozick’s own example: a scheme in which each person must spend one day a year doing a broadcast on a loudspeaker for his neighbours in exchange for being able to listen to the broadcasts of others the rest of the year. Nozick objects to being required to participate in this scheme merely because you cannot avoid hearing the broadcasts, and his objec­ tion is well taken if he would prefer no broadcasts to a scheme of broadcasts with the requirement that he perform one day a year. But the objection is much less cogent if he would actually prefer the existence of the scheme, with his

30 31 32 33

Ibid., pp. 19–20. Nozick 1974, pp. 90–95. Arneson 1982. Klosko 2004.

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required participation, to the non-existence of the scheme. It is hard to see a principled objection to required participation in the latter case. Requiring that benefits exceed costs for each participant seems to cure the objection; it amounts to nothing more than a fairly narrow version of the first form of Kant’s Categorical Imperative.34 Simmons handles this issue by requiring that each participant accept the bene­ fits of the scheme knowing that this involves paying the costs.35 I agree with a recent suggestion by Massimo Renzo,36 however, that for these purposes acceptance is best viewed as of evidentiary significance rather than a requirement of principle. If one freely accepts the benefits of the scheme knowing the costs that are required, one can be taken to have benefited to a sufficient extent. But what matters is that one has benefited sufficiently; acceptance effectively estops one from denying this. It may well be that absent acceptance one cannot safely assume that a reluctant participant is sufficiently benefited to justify coercing him,37 but this will not preclude us from saying that anyone who does suffi­ ciently benefit is obligated to pay the required costs. Arneson and Klosko also include a requirement that costs are fairly distrib­ uted. My own proposal is that we incorporate this into the costs side of the equation: the Principle of Fairness requires us to bear only our share of the costs of the scheme. This prevents us from avoiding paying our own share of the costs of a scheme simply by questioning the fairness of the distribution of costs to others. With these modifications the Principle of Fairness seems to be clearly mutually beneficial: if a scheme cannot work without coerced participa­ tion, and I actually prefer the existence of the scheme with its costs, not its non-existence, I cannot reasonably complain about my own forced participation.

A numerical illustration I believe a numerical illustration will clarify some of the above discussion. In using this illustration I am not arguing that all of the costs and benefits of states are susceptible to the sort of quantification I am using here. Rather, I think the numbers clarify the issues. In some cases we will have to deal with costs and benefits that resist such quantification, but we can analyse them more clearly if we first examine cases where such problems do not cloud the issues. Consider a group consisting of ten similarly situated people, each of whom can contribute to a common good at a cost of five units to himself. His doing so provides one unit of benefit to each of the group, including himself, or ten

34 It is narrow because it only applies to actually existing schemes; it does not require one to act as one would prefer others to act if they are not actually so acting. The Principle thus avoids one of the main objections to Kant’s Principle as he actually formulated it. 35 Simmons 2001, pp. 18–26. 36 Renzo 2014. 37 Indeed, the law of restitution in common law countries normally includes a requirement of free acceptance of benefits for exactly this reason. See generally Birks 2005, pp. 53–58.

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units of total benefit. Each of them is thus better off if all of the others contrib­ ute, but would be even better off if they contribute and he does not, as he derives nine units of benefit, without incurring the costs. Classical economic theory would predict that no one would contribute in these circumstances, as the costs outweigh the benefits for each individual although the benefits if all contribute clearly outweigh the costs. In public good experiments this generally takes the form of the experimenter doubling the contributions that individuals make; thus an individual contributes $5 and the experimenter doubles it and distributes the pot among all partici­ pants, whether or not they contributed. Of course, most real-world “public goods” are not like this, but rather are more akin to the experimenter stealing half the contributions.38 We might instead view the example as one where par­ ties agree not to engage in actions whose costs clearly exceed their benefits. For example, theft is usually a very negative-sum game, with the value of goods stolen generally being far less to the thief than to the victim. Thus everyone benefits from a general agreement not to steal, although each person would be still better off if he were free to steal while others were obligated not to steal. My version of the Principle of Fairness, which, following Robert Sugden, I call the Principle of Cooperation, requires that you contribute in these circum­ stances, rather than free ride on the contributions of others. In general, it would require contribution whenever the practice of others contributing benefits you more than the costs of your own contribution. In the example, you benefit by nine from the contributions of others, and contributing only costs you net four, so you should contribute. But this requirement is not satisfied unless others are also contributing. You would have no duty to contribute to this scheme if others were not doing so, since you would not be benefiting from their contributions. What if some are contributing and not others? How general does compliance need to be for the Principle to apply? The answer is that there has to be suffi­ cient compliance for the practice to be beneficial to you net of the costs to you. In my example this is true if five others are contributing; then you derive a benefit from the practice of six (including your own contribution) at a cost of five. Accordingly, the Principle of Cooperation tells you that you should comply if at least five others are complying, and not otherwise. But this result follows from the numbers I have used in my example; had I chosen different numbers, a much higher or lower rate of compliance would be needed to trigger your own obligation. Of course, nothing precludes you from contributing if fewer than five are doing so. You might do so because you value the benefits your contribution provides to others, or because you want to set an example for others with a view to getting a mutually beneficial scheme going. But doing so is not required by the Principle of Cooperation as I have formulated it.

38 See Friedman 1989.

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In my example the costs and benefits were stated in common units, so it was indisputable whether you benefited from the scheme: if everyone contributes, you gain ten units at a cost of five units, and can thus not complain about being obligated to comply. This does not necessarily mean you would not have a complaint if you were coerced to comply, as we would need to consider the costs of the coercion itself. In many real-life examples, of course, the costs and benefits may not be so clearly commensurable: if compliance costs me five apples but I benefit to the extent of ten oranges from the compliance of others, whether or not I am obligated depends upon how much I value apples and oranges. Even if most people would prefer ten oranges to five apples, if I would not then I am not benefited by the scheme and have no obligation to contribute to it. My example also involved benefits that accrued to each member of the group equally, but of course many situations might involve unequal benefit. To change the example, imagine that compliance costs me five units and benefits the five males of my group (including myself) by two units each but does not benefit the five females. Then it seems to me that I am still obligated to contribute if the remaining males do, as I benefit by ten at a cost of five. It should not matter to me how the benefits to others are distributed.39 But in this example, the females have no obligation to contribute since they are not benefited. Of course, most of us actually do value benefits to at least some other people, and a full account would need to take account of this fact. In the modified example in the previous paragraph, suppose each of the males is married to one of the females, and that spouses value benefits to their spouses as equal to bene­ fits to themselves. In that case the females are obligated to contribute, as the benefits to them of the scheme now outweigh the costs. We would of course want to avoid double counting in any analysis we might do, but subject to that qualification I can be obligated as a result of benefits accruing to others to the extent I value those benefits. As thus reformulated, the Principle of Cooperation is hard to quarrel with. If I agree that the goods my particular state provides are valuable, are worth their costs and cannot be provided voluntarily, it seems highly unreasonable for me to refuse to pay my fair share of these costs. No theorist of whom I am aware defends a right to “free ride” in these circumstances. Indeed, a vague version of the Principle of Fairness may well be innate in humans, as it seems to underlie much of the basic cooperativeness observed in virtually all human societies, although I take no position on that disputed issue here.40

39 It is of course imaginable that I might be outraged at the failure of the scheme to benefit the females, so that the cost of that outrage outweighs the benefits to me personally. I will ignore this possibility in what follows. If it helps, imagine that the failure of the scheme to benefit the females is unavoidable—for example, it prevents a disease that only males suffer from. 40 On this see generally Bowles and Gintis 2013, and the extensive literature discussed in Chapter 2.

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In his recent book Sugden defines and defends a slightly different prin­ ciple, which he calls the Principle of Mutual Benefit. He states it as follows:41 When participating with others in a voluntary interaction, and so long as others’ behaviour in that interaction is consistent with this very principle, behave in such a way that the other participants are able to satisfy normal expectations about the consequences of the interaction for them. He does not explain what the relationship is between this principle and the Prin­ ciple of Cooperation from his earlier book. I suspect the two are largely intended to be equivalent, but this new principle makes explicit reference to the “normal expectations” of others in a way the earlier one did not. While I am inclined to endorse both principles, this new principle strikes me as stronger, and possibly subject to counter-examples when others have unreasonable expect­ ations. I will therefore use the Principle of Cooperation for present purposes. There is a relationship, but only a limited one, between the Principle of Cooperation and the concept of Pareto optimality that is used in welfare eco­ nomics. Under the Pareto principle, only transactions under which everyone is better off (or at least equally well off under some versions) count as improve­ ments. The original thought that motivated this definition was scepticism about interpersonal comparisons of utility, a scepticism that I do not share and that I doubt many share when they are not doing welfare economics. The thought was that since we cannot compare the utility of different persons, we can only be sure that something is an improvement if it leaves everyone better off, or someone better off and no one worse off. Here adding the reciprocal benefit qualification is motivated by an entirely different idea: it is not that interpersonal comparisons of utility are meaningless or impossible, but rather that they are impermissible: one person cannot permis­ sibly be harmed to benefit others. Thus it only permits restrictions of freedom that prevent or undo restrictions of freedom or that are part of a mutually bene­ ficial practice of reciprocal restrictions of freedom. Welfare economics also uses a different concept, usually referred to as KaldorHicks improvements, in which a state or transaction is permissible if the gains to the winners are such that the winners could compensate the losers. Of course, if compensation is actually paid, these will be Pareto improvements; what is unique about Kaldor-Hicks is that there is no requirement that compensation is actually paid, as long as it could be. It should be obvious that the Principle of Cooperation does not and should not permit Kaldor-Hicks type trade-offs between one person’s freedom and another’s. There is, however, a possible exception to what we have just said. It might be in the interest of a group of persons to permit Kaldor-Hicks improvements

41 Sugden 2018, p. 262.

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without paying compensation under the theory that payment of compensation would be overly costly and that a series of such transactions is likely to involve offsetting benefits that even out in the long run. This is analogous to a group of friends that have dinner together frequently and split the bill evenly despite the fact that some had meals that were more expensive than others. This is accept­ able under the theory that it is not worth the trouble of determining exactly how much each person spent, especially if the differences are likely to even out in the long run.42 It is conceivable that a particular restriction of freedom is not part of a reciprocally beneficial practice, but that it would be permissible if considered as part of a larger series of such restrictions. I might, for example, consent to your being allowed to force me to subsidise tennis in exchange for my being able to force you to subsidise golf, because I value the additional money for golf more than the loss of the money I am forced to pay for tennis. But this idea should be approached with extreme caution, because it is clearly subject to abuse. Exactly which restrictions should be grouped together, and which viewed separately, is likely to be endlessly disputable. It might be best to reserve such exceptions for cases where the restrictions in question were part of a transaction that was specifically agreed to with the idea that there were offsetting trade-offs of freedom. Allowing someone to rationalise a restriction of freedom after the fact on this basis would open the door to far too many dubious restrictions.

Application to political obligation The difficulty, as Klosko recognises, is that the Principle of Cooperation is unlikely to justify much beyond the minimal state, and for some people perhaps not even that. For a sizeable group of people, most activities of modern states are probably not cost justified, especially when we include in the costs not just the taxes but also the harms done by states. Those of us who object to state provision of these services do not assert a right to free ride on the efforts of others. Rather, we typically assert that the services in question are either not worth their costs or could be provided without coercion by voluntary schemes. Klosko tries to handle some of this by a notion of “presumptive benefit,” which applies to services that are necessary for minimally decent lives. For such services, Klosko believes, people with differing valuations can be forced to go along unless they carry an onerous burden of justifying their own preferences. But anarchists reject the entire premise of this argument; they do not believe that states provide the conditions for minimally decent lives; indeed, in many cases they would argue that states are the main obstacle to minimally decent

42 See Buchanan and Tullock 1962. The approach I am urging is similar to that urged in Chang 2000, but is somewhat differently motivated. Space does not permit a full examination of the differences here.

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lives for most people. Anarchists are not free riders; they want everyone to reject the state, and believe that we will all lead better lives if we do.43 Klosko and others who defend the state make only vague and conclusory efforts to address the arguments of those who oppose state provision. For the most part they ignore the manifold harms that states cause and downplay the viability of non-coercive alternatives.44 And they also tend to assert that any scheme that effectively did provide the services in question would be tanta­ mount to a state. They at most show that they themselves, and perhaps the majority of current state residents, will likely prefer state provision to its alterna­ tives; they do not come close to showing that those with different preferences are irrational. In effect, then, we have this situation: a majority of residents in a given area might prefer a state that provides a given package of services, with a minority preferring either a smaller state or no state. The Principle of Cooperation cannot justify forcing the latter to give in to the former. Only if they agreed that the state was on balance a good thing, but still refused to pay their share of the costs, would their refusal violate the Principle of Cooperation. The minority do not have to justify their own preferences any more than the majority do.45 Klosko also argues that once a justified state is established based on the Prin­ ciple of Fairness, its functions can be extended based on a Principle of Public Good, which apparently requires people to pay for state activities that are overall beneficial even if the benefits do not exceed the costs for the particular individ­ ual. Klosko provides no argument for this principle, however, beyond his own intuitions. It is hard to see what can possibly justify this new principle: why should someone feel any obligation at all to support a programme that is not on balance beneficial to him merely because it provides benefits to others? Of course, a utilitarian will not shrink from endorsing such a duty, but most of us are not utilitarians and accept no duty to sacrifice our own interests to benefit others. Why should anyone who is not a utilitarian accept Klosko’s Public Good Principle? The idea that may underlie it is this: even if I do not benefit from a particular state activity, I may benefit overall from a system that permits states to do

43 See Huemer 2012. For a good recent example of an argument along these lines, which is polemical rather than theoretical, see Chartier 2011. For shorter and more theoretical version of aspects of the same author’s position, see Chartier 2009, 2012a, 2012b. For an interesting journalistic treatment, see Frisby 2013. For a recent argument that anarchy works better than many people think, see Leeson 2014. 44 For detailed factual discussion of both the harms that states cause and the viability of nonstate provision, see Stringham 2007, 2015. 45 To the extent that any justification is given for this majority preference, it appears to be based on the idea that someone with differing preferences must be acting in bad faith, pretending to have preferences he doesn’t in order to avoid paying his fair share of the costs. Although bad faith is a real concern, the supposition that anyone whose preferences differ from those of the majority must be acting in bad faith is wholly unwarranted.

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things that benefit less than all. The benefits from the resulting package of programmes overall may outweigh the overall costs of the package, even if there are many items within the package I would prefer to do without. This possibility is real, and a suitable theory needs to accommodate it.46 But Klosko’s suggested principle is too broad; it might well be that for many persons even the total package is a bad deal. If so, there is no reason they should be compelled to par­ ticipate merely because others are benefited by the package, any more than they can be compelled to support a single state programme merely because others benefit. Reasonable people considering these problems in advance of an actual dispute47 would probably reason as follows. Ideally, we would never coerce anyone to contribute to a cooperative scheme where he disagreed in good faith that the scheme provided benefits worth its total costs. However, giving effect to this idea might in practice lead to people either falsifying their preferences to enable them to free ride, or perhaps even deluding themselves into so thinking (my own view is that sincere pacifists suffer from this sort of self-deception).48 This would in turn lead to one of two results: either the dissenters are suffi­ ciently numerous as to prevent the scheme from operating at all, in which case the majority lose the benefits of the scheme, or they are not, in which case the scheme is implemented but some unfairly avoid paying their share. Now I think reasonable people would not be overly concerned about the second case: although it may be unfortunate that some get to benefit with­ out paying the costs, it is hard to see how that outweighs the harm resulting from being forced to support a scheme that you reject. Indeed, by limiting their principles to presumptively beneficial goods, fairness theorists like Klosko and Arneson implicitly accept this, since they don’t think the existence of free riding on benefits like attractive lawns justifies coercion. But even if a good is presump­ tively beneficial, if it is in fact provided then the fact that some get the good for free is morally inconsequential; indeed, except from the amounts involved, it is no different.

46 For a discussion along acceptable lines, see Buchanan and Tullock 1962. What the authors require is unanimous consent to a constitution that permits subsequent decisions to be made on less than a unanimous basis. However, there is no supposition that subsequent decisions can be made by simple majority, and indeed good reason to think that much more than simple majority voting should be required before the government funds putative public goods. 47 This idea bears a superficial resemblance to a Rawlsian “veil of ignorance,” but the parallels should not be overemphasised. I am speaking of actual people who know their values and preferences as well as their talents and abilities, but who recognise that as they go through life they will encounter various occasions where they differ from their fellows on issues and need to derive reasonable ways of resolving such differences. This does not begin to justify impos­ ing on them a requirement to behave as they would behind a much thicker Rawlsian “veil of ignorance”; as I argued in Chapter 3, there is no reason at all why people should pay any attention to what people in the latter situation would choose. 48 On self-deception as the best way to successfully deceive others, see Trivers 2014.

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But the first case, where free riding prevents the good from being supplied at all, presents a serious challenge, since tolerating the dissenters precludes the majority from concluding a scheme that they sincerely believe is beneficial. A rational person, in considering the rules that should be applied to resolve dis­ putes of this kind, would need to balance the costs of losing the benefits of jus­ tified (from his perspective)49 schemes against the costs of being forced to contribute to unjustified (from his perspective) schemes. But if the primary legit­ imate concern addressed by the Principle of Cooperation is situations where free riding would prevent the good in question being supplied at all, the rationale for using coercion is dramatically undercut by two facts. To begin with, despite the economic arguments urged by Klosko and Arneson that people will not contribute to public goods where free riding is possible, empirical research shows that in fact people do contribute to public goods even where they cannot be forced to do so. The literature on this is large and growing.50 For a prominent example, after the tragedy of the Boxing Day Tsu­ nami in 2004 in Indonesia and other parts of Asia, individuals in the United Kingdom alone donated over £330 million, then equivalent to almost $600 million, an amount greater than the contribution of the UK government.51 One cannot therefore simply assert an argument that such goods will not be provided, invoking homo economicus-type arguments, in the face of clear evidence that people do not in fact behave like homo economicus in such situations. Second, to the extent the problem is that the goods will not be provided or will be provided in insufficient amounts, the problem is solvable by assurance contracts. Under this type of contract, people agree to contribute if enough others also do so, thus avoiding the problem of wasted contributions. If enough people are willing to support the good in question if others do so, an assurance scheme can provide the good without coercing those who do not want the good.52 Defenders of democracy are likely to point to majority rule as a suitable method, but Buchanan and Tullock’s arguments refute such a simplistic approach. A rational person would instead weigh how often he is likely to be on

49 Nothing I say here is premised on any idea that there is a right answer to disputes of this sort. Indeed, given the subjectivity of values argued for in Chapter 2, such disputes cannot have right answers, only different answers depending on one’s values and preferences. 50 A good summary is in Croson 2010. See also Bowles and Gintis 2013. 51 See https://en.wikipedia.org/wiki/2004_Indian_Ocean_earthquake_and_tsunami (visited 9 January 2018). 52 On assurance contracts as a solution to public goods problems, see Schmidtz 1991. For a particularly cogent defence of a particular form of assurance contract, known as the Domin­ ant Assurance Contract, see Tabarrok 1998. The basic idea is that a wealthy backer of the alleged public good guarantees a bonus in addition to a refund of contributions if the needed threshold of contributions is not met. This gives everyone who benefits an incentive to contribute.

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either side of this issue and also the magnitude of the costs of being wrong in either direction. After all, there are many wasteful, misguided, exploitative and unfair cooperative schemes out there. There are arguments that strongly suggest that reasonable people would require something more than a majority, but less than unanimity, before allowing dissenters to be coerced to participate. For example, suppose we had a rule that said “we will fund public goods if and only if 75 per cent of people support the scheme.” I might reason that in the long run I will gain more from the benefits of the schemes that are thus funded when I am in the majority than I will lose from those schemes where I am in the minority who prefer the non-existence of the scheme. If so I should support the 75 per cent rule, even though I know that it will occasionally work to my disadvantage. The problem with an argument of this sort is that it only moves the disagree­ ment back a stage. We may not only disagree about whether a particular scheme is justified, but we may also have widely differing views about the proper general balance of costs and benefits that might flow from differing views. My own pos­ ition, for example, is informed by the public choice literature, which strongly suggests that most so-called public goods are really public bads and that there­ fore stringent barriers should be put in place before such schemes are implemented.53 Others are much more sanguine about the public sector and much more troubled by the consequences of failure to implement alleged public benefits. We would undoubtedly want to draw the line at dramatically different points on the spectrum. Of course, reasonable people recognise that there needs to be some give and take in such matters. If some, for example, would favour a cut-off of 75 per cent while others would favour 80 per cent, neither side is likely to want to come to blows over such a small difference.54 But what if the majority want an agreement that funds public schemes supported by any majority, but I would prefer no public provision at all to the bloated public sector that such a mechanism is likely to create? Must I give way? I see no argument as to why I must. The other argument that might be used to justify such a requirement is that if a majority benefit from a state that goes beyond the activities of a minimum state, the minority who would not benefit from the additional state functions cannot reasonably ask the majority to restrict their activities to accommodate their minority preference. But it is hard to see how this argument justifies

53 For a short introduction to this literature see Tullock, Seldon and Brady 2002. For a more detailed treatment, see Simmons 2011. For a good overview of public choice generally, see Mueller 2003. For a briefer summary, see Shughart 2008. 54 This is very similar to Gerald Gaus’s Justificatory Liberalism. For the most recent exposition of this, see Gaus 2011; for a shorter version, see Gaus 2010b. The general idea is that if I agree that something must be decided by a group, I should agree to a reasonable procedure for arriving at such a group decision, but this does not apply if I do not agree that it is a matter for group decision at all.

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compelling the minority to participate in functions that are not to their benefit. Why can’t a minimal state be established that includes everyone, and a state con­ sisting of less than everyone that provides more extensive benefits for those who think the latter are worth their costs? For example, assume an island of one hundred inhabitants, forty of whom would prefer a minimal state that only resolved disputes and defended the islanders against external threats, and sixty of whom would prefer a more exten­ sive state. Why must all one hundred residents be part of the more extensive state? Why not one state to which all belong that performs the functions all agree to, and a “substate” whose membership is limited to those who want the additional benefits the minority reject? Klosko’s argument only works if we tacitly assume that the minority are in bad faith: what they really want is the benefit of the larger state without the costs. But that is just wrong, and arrogant too: those of us who want a smaller state really do think life would be much better without the added state functions. You can disagree with us because your preferences differ, but do not question our good faith. Statists like Klosko and Arneson also maintain that in some circumstances one could justify imposing the state on people who disagree with its existence on unreasonable grounds. The example Arneson uses is of someone who refuses to pay taxes because he believes the services do not cost anything but rather fall like manna from heaven.55 That might be right as to persons whose opposition to the state is based on straightforwardly false views about factual matters, as in Arneson’s example. But the disagreements between anarchists and statists are rarely so straightforward. My own sense is that the disagreements are mainly about values, with anarchists placing a much higher value on freedom. But they are also about matters of counterfactuals: anarchists’ views about how things would be factually in the absence of the state differ dramatically from the views of statists. I do not see how one side can legitimately be forced to give way on such a dispute. For most people, who prefer the existence of the state, with all of its costs and benefits, to its non-existence, the Principle of Cooperation obligates them to do their part in support, which includes at least a prima facie duty of obedi­ ence to the state’s law. The argument for this is straightforward—if I expect and demand that other people obey even those laws they disagree with, I therefore must do the same. If I gain more from other people acting in compliance with this principle than I lose by complying with it myself, the Principle of Cooper­ ation requires my obedience.56 On this account, political obligations are

55 Arneson 1982.

56 Although the Principle of Cooperation does not require that I pay for or otherwise recipro­ cate every minor benefit someone bestows on me that I value at more than its cost, Klosko’s argument that the benefits of the sovereign are relevantly different because more important is hard to disagree with if its factual predicate is sound; Klosko 2005. My argument is that for some, it is not sound, but this does not undermine his argument’s validity for those for whom it is sound.

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essentially owed to other citizens, and not to the sovereign itself. But the obli­ gations are, nonetheless, real.57 In short, the Principle of Cooperation at most requires us to pay our fair share of the costs of schemes we support. It cannot begin to justify requiring us to support schemes we would prefer did not exist. It might be inconsistent with the positions of a few philosophical anarchists who, one senses, actually do prefer the existence of states that perform roughly the functions that most liberal states do, but want to deny that we owe duties of obedience to such states.58 But it in no way threatens the position of genuine anarchists who would prefer the non-existence of such states, or of those who would prefer much smaller states. Imposing Leviathan states on the latter is, quite simply, naked aggression and nothing more.

Conclusion While fairness arguments such as those of Klosko and Renzo arguably do show that the state is justified for most people in modern liberal states, and that they therefore have political obligations, they do not show that the state is justified to those who sincerely believe that, for them, the costs of the state outweigh the benefits. The next question is then, so what? Nothing I have said entails that the state may not, therefore, coerce them. To show that, I would need to establish that the state is precluded from coercing those who do not have polit­ ical obligations, and I have not yet tried to show that. Perhaps the answer is that for such persons, their relationship is one of blameless freedom: the state is free to coerce them, and they are free to resist if they can. This last possibility is consistent with a number of “realist” approaches to pol­ itical theory, the most plausible of which is that argued by Bernard Williams in his mainly posthumous writings, for the most part collected in his In the Begin­ ning Was the Deed.59 Under this approach it may be enough that the state is accepted by the large majority of citizens and the remainder are coerced, at least if the coercion is enough to induce reasonable levels of compliance.60 Most anarchists are not bomb throwers, and many will frankly concede that although the state is unjustified and not owed allegiance, actively working to overthrow it would do more harm than good.61 This may be all we can hope for.

57 For a similar idea, see Gaus 2011, pp. 460–470.

58 This seems to be the position of the leading modern exponent of philosophical anarchism,

John Simmons—see his “Justification and Legitimacy” in Simmons 2001. As the discussion above should make clear, I disagree with Simmons on this. It seems clear to me that if I prefer the existence of the state to its non-existence, then I am obligated to do my part to support the state, and that a prima facie duty of obedience is part of that duty. 59 Williams 2005. For an excellent recent summary of Williams’s position, see Hall 2015. 60 See Philip 2012, p. 634. 61 See, e.g., Friedman 1989, pp. 149–151 (“Revolution Is the Hell of It”).

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Nonetheless, those who take seriously the obligation to respect the freedom of others, and indeed are inclined to affirm that everyone is entitled to their own personal sovereignty of the sort advocated by Mill in On Liberty,62 will not be satisfied to stop there. If we believe in the Sovereignty Principle I argued for in Chapter 4, we must do more to justify coercing those who do not accept state authority voluntarily. Discussing how to reconcile state authority with indi­ vidual freedom is the subject of Chapter 10. Before we do that, however, we need to consider the implications of the argu­ ment so far for the institution of private property, and particularly for private property in land. State sovereignty is historically tied to particular areas of land, and as we shall see, there is a link between the principles that govern when a person is entitled to own land and those that govern a state’s right to coerce its inhabitants.

62 Mill 1947.

7

Private property1

In Chapters 3 and 4 I argued that we should accept the Sovereignty Principle as a limitation on both individual and collective action. In Chapter 6 I argued that we should also accept the Principle of Cooperation, which is similar to what other writers call the Principle of Fairness. Combined, these principles yield the Reciprocal Sovereignty Principle, which requires us to respect the sovereignty of others over their own lives and property except to the extent that restrictions on that sovereignty are mutually beneficial. On this account, who has what property becomes a critical issue because people require external objects on which to act. As numerous writers have noted, a principal virtue of private property is to leave each person a sphere in which his own choices are decisive; in which he need not persuade others to accept his views in order to act and to live out his choices.2 If the point of property is to free each person from the domination of others, one may not take so much property as to prevent other persons from acquiring enough private property to make this possible, to give him a sufficient sphere in which his own choices are decisive.3 But even beyond this, giving property to one person can limit the freedom of others, and that requires justification. In this chapter, I will explore the implications of the Reciprocal Sovereignty Prin­ ciple for justice in the acquisition of property, and contrast the resulting theory with a number of related approaches. My goal is to decide what principles of distributive justice this version of the Sovereignty Principle leads to. Even those who believe that the Sovereignty Principle is not the whole of distributive justice should be interested in seeing how far we can get on the matter without positing other principles.

Acquisition of property Robert Nozick’s discussion of original acquisition is a useful starting point for considering these issues. Nozick permits people to appropriate land and other

1 This chapter draws extensively from O’Brian 2011.

2 See, e.g., Gaus 2007.

3 See Waldron 1988, p. 412 (arguing that freedom for all requires private property for all; citing

inter alia Hegel’s statement “Everyone must have property” from Hegel 2005).

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natural resources (hereafter just “land”) as long as they do not violate the Lock­ ean Proviso. As originally formulated by Locke, this required an appropriator to leave “enough and as good in common for others,” a condition that clearly is not satisfied today and may have only rarely been so in the past. Nozick rewrites this to provide that one may not appropriate land unless the situation of others is not worsened thereby, and then proceeds to argue that this weakened Lock­ ean Proviso is satisfied by the general benefits that privatisation of land affords. The close relationship between the Lockean Proviso and the Sovereignty Prin­ ciple should be clear; indeed, the former is just a specific instance of the latter. As Locke’s version is worded it could be read as either imposing a sufficiency test (appropriation is allowed as long as others have left “enough”) or an egali­ tarian test (others must be left property of equal value). The latter interpretation has been more favoured in the literature, but the general arguments as to why sufficiency is preferable to equality could be invoked in favour of the former interpretation.4 The fact that private property is absolutely essential for prosperity is firmly estab­ lished both by economics and history.5 It does this by internalising both costs and benefits, thereby giving people incentives to trade and invest in ways that promote growth and personal responsibility. Of course, no system of property can internalise all costs and benefits: some costs and benefits are too costly to internalise. But pri­ vate property undoubtedly generates benefits far in excess of its costs. The question is whether those benefits accrue to everyone, thereby justifying property not only on a utilitarian basis but to each person. The Proviso is intended to ensure that it does so. A host of people have objected to Nozick’s quite weak limitation on appropri­ ation, including G.A. Cohen.6 He points out that it permits the appropriator to capture the entire surplus created by privatising the land even though another could have captured that surplus if he had instead been the one to appropriate it. Moreover, it would permit one person to privatise all the land in a particular area, so long as he paid the inhabitants a salary for working for him that left them as well off as they would have been if no appropriation were possible. But why this favouritism to the first appropriator? Why should he be able to appro­ priate it all? More generally, Cohen points out that property rights restrict freedom. If I own a field, that generally includes a right to exclude all others from entering it, and that is a restriction on their freedom; they have less freedom of action than they would have had if I did not exclude them. Appropriating previously unowned prop­ erty arguably always violates the Sovereignty Principle unless something more is shown. Making something my property is not simply a harmless exercise of my own freedom; it imposes obligations on every other person in the world not to interfere

4 See O’Brian 2010.

5 See, e.g., North 1990, Bethell 1999.

6 Cohen 1995.

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with what is now my property.7 Indeed, even eating an apple worsens the position of others by removing from them the possibility of eating that apple, although if there are more apples than necessary to satisfy everyone’s appetite then the harm is inconsequential. If the Sovereignty Principle did not take account of the loss of freedom involved in appropriating property, it would be wholly inadequate, since one could limit my freedom of action completely by simply appropriating all of the external world, leaving me no means whatsoever apart from my own body; in Herbert Spencer’s words I would not even have a place for the soles of my feet.8 Arthur Ripstein makes it clear that restricting another’s ability to use common property can violate his Sovereignty Principle, and that is clearly right: I restrict other people’s freedom in a prima facie objectionable way if I prevent them from doing something they could otherwise do by appropriating some­ thing they would otherwise be free to use.9 The same is not true of property that I create, since I do not deprive someone of access to something that would have otherwise existed. In a series of articles Eric Mack has argued for a version of the Lockean Proviso known as the “Self-Ownership Proviso.”10 This Proviso prohibits the use of property to reduce the abilities of others to interact with the world to less than what they would be in a pre-property state. But again he nowhere justifies allowing someone to appropriate a resource, and thereby restrict the freedom of others to use it, simply because he leaves them as much worldinteractive ability as they would have in a world with no property. The question that remains is: why such a low baseline? Why shouldn’t the appropriator have to show that his appropriation leaves everyone better off than if he had appro­ priated less land? An example from Bruce Ackerman illustrates the issue well.11 You and I are walking in a garden, both hungry, and we come upon two apples on a tree. You take them both and eat them; I am justifiably upset. Ackerman thinks equality is the principle you have violated here. I have a different explanation. You have harmed me by eating either apple; in your absence I could have eaten both. But if I eat an apple I have harmed you, since in my absence you could have eaten both. If we are similarly situated we should each get one apple, because the same considerations apply to each of us. If we each eat one apple we have each harmed the other, but the harms offset; they are reciprocal. We both are better off than we would be if neither of us eats an apple. In these circumstances we do no wrong; if this were not true then, as Locke points out, mankind would

7 See, e.g., Gibbard 1976, Waldron 1988, Harris 1996. 8 Spencer 1851. 9 Ripstein 2009, p. 238, n. 32. Indeed, unless the Sovereignty Principle goes beyond prohibit­ ing using a person or his property, we could not prohibit pollution of unowned objects like the atmosphere. 10 Mack 1995, 2002. 11 Ackerman 1983.

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12

have starved. This is the Reciprocal Sovereignty Principle in action: two people are permitted to harm each other if the harms are reciprocal and both benefit from a recognised social practice of being able to harm each other in that way. Of course, eating an apple is a trivial harm and should be subject to a principle that ignores de minimis harming. But the principle is clear and when the amounts at stake grow larger, as they do with respect to natural resources, they can no longer be ignored. The Reciprocal Sovereignty Principle then becomes a necessary emendation to the Sovereignty Principle to prevent it from being unreasonably restrictive of our ability to act in the world.13 We could of course avoid the need for such a principle by specifying that in cases of reciprocal harm the parties can negotiate mutual releases from the prohibition of harm, and perhaps that would be a feasible rule in the two-person case, but it would quickly be impossible in the crowded actual world in which we live. We can generalise this principle so that harm is permissible in general if it is part of a practice of mutually allowed harming that is beneficial to all. This is not a “two wrongs make a right” argument—the fact that the harm is part of a practice that is mutually beneficial means it is not wrongful at all. As emended, then, the Reciprocal Sovereignty Principle generally prohibits non-reciprocal harming of other people.14 How does this apply in the context of acquisition of property? In most cases it would seem that it authorises appro­ priation of equal shares of property only. To see why, return to our apple example, but suppose there are four apples. Can you eat three apples while leav­ ing me only one, arguing that I should agree to this since I am still better off than if neither of us can harm the other at all and therefore neither can eat any apples? Only if we assume the apples are a package and cannot be analysed one at a time. If, as I think we should, we require a separate justification for each apple you eat, you use up your reciprocity argument after you eat the first apple. Reciprocity of harm requires that we split the apples evenly, assuming that we both want them. In my apple example we each eat the apples, which is the ultimate form of appropriation. However, if we are entitled to eat the apples we are clearly entitled to set them aside to be consumed later. In my original example if you choose to eat your apple and I choose to save mine for later, you wrong me if you later eat my apple without my consent. This is because you harm me and there is no offsetting harm that I do you that makes up for it.

12 Locke 1952, p. 18.

13 Thomson 1990, pp. 273–292 concludes that we do not generally have rights not to have our

freedom limited by other people, primarily because such a right would have absurd conse­ quences. She would be right if we did not emend the principle to permit reciprocally benefi­ cial harm, but I believe the emended principle is not subject to her objections. 14 This chapter deals primarily with intentional harms, but I believe the principle also applies to risks of harm, and prohibits subjecting people to non-reciprocal risks of harm. See the discus­ sion in Chapter 8. For the outlines of a similar theory, see Hansson 2003.

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Original appropriation of land works in exactly the same way.15 If there are two residents on an island, Crusoe and Friday, and they each appropriate one half of the island and farm it, any harm they do is reciprocal and therefore permitted.16 Each of them would then harm the other if he uses the other’s land without his consent, or if one takes some of the crops that the other has grown on his own land. In general, if you have acquired property without vio­ lating the Reciprocal Sovereignty Principle, then I harm you if I make use of that property without your consent unless there is a reciprocal arrangement that satisfies the Principle permitting the latter type of harm. Thus, the objections by theorists such as Waldron and Harris that property rights impose obligations of non-interference on the rest of the world are misplaced, since those obligations are ones they already have not to impose non-reciprocal harm on other persons. In this way we could have a “natural” right to property, in the sense that it can sensibly be said that you wrong me if you interfere with my property even in the absence of a state. It might be objected that I am harmed by your privatising one half of the island, even if you give me the other half, if I would prefer that the whole island remain common property. But compelled joint ownership of the island would violate the Sovereignty Principle if you prefer a position in which the island is divided. This is because without separate property I cannot act in the world without securing your consent, and am therefore not free to live my life as I see fit. At the limit, as Cohen showed, I could use my right to withhold consent to your use of land to force you to work on my behalf, at least so long as I am not better off giving up the use of land entirely.17 Absent unusual circumstances, the Principle requires that those who want their share of separate property to be given it so that they can act without the consent of others. Only in this way can we be independent of each other’s will.18 This does not necessarily mean we must privatise everything, but it does mean we cannot require that everything be held jointly if not everyone wants that.

15 Many theorists seem to assume that a right to do things like eat apples growing on trees is an unproblematical “usufructory” right in no real need of justification, while property rights are much harder to justify. It seems clear that this is wrong; it is a lesser restriction of your free­ dom to appropriate an apple than to eat it, since in the former case I can always decide later to give it to you or sell it to you. The mistake may lie in comparing usufructory rights in the apple to property rights in the tree; the latter is of course a much larger restriction of freedom because it relates to a much larger bit of the world. Of course, appropriation of individual apples will normally be excluded from the concept of harm by a de minimis exception, but the principle still applies. 16 Here I assume there is no reason to keep some of the island in common; in many cases that might not be true. 17 Cohen 1995, pp. 94–102. 18 On the close connection between private property and freedom, see Pipes 2000, Gaus 2010a. Of course, this does not mean that no freedom at all is possible without property, but rather that without property one’s freedom is limited by the need to gather the consent of others to activities involving the world.

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Some will object that this privileges individualism over communitarianism: if Crusoe prefers separate property and Friday joint property, why does Crusoe get his way, not Friday? In the two-person example this is undoubtedly true; it is not possible for both to have their way, and it is a greater imposition on Cru­ soe’s freedom to force him to collectivise than it is on Friday’s to force him not to. This perhaps privileges individualism, but only in the sense that we privilege being single by requiring both parties to consent to a marriage. In a threeperson example, though, there is no privileging. If Andy and Bob want joint property and Charlie wants separate property, then Andy and Bob may combine their property while Charlie keeps his separate. This shows us why Nozick’s Lockean Proviso is inadequate; it is not reciprocal, at least if we require that each slice of property that a person appropriates be justi­ fied separately. If someone appropriates more than his pro-rata share of land, the portion that is in excess of his share is almost certainly not reciprocally justified. It is not enough just to show that the general process of privatisation of land benefits those who have nothing to appropriate; what is needed is to show that the parties who appropriate more than their share generated reciprocal benefits by their “excess” appropriations. This seems extraordinarily difficult if not impossible. David Schmidtz argues that in many cases the Lockean Proviso not only per­ mits but requires private property, for the simple reason that unless some assets become private property they will not be cared for and preserved for future per­ sons to enjoy.19 In many cases this may well be true, but it does not generally justify the appropriation by some of more than their share, at least if there are others around who could equally fulfil the function of protecting the property for future generations. And it would not justify perpetual property rights in land if shorter term rights such as life estates would provide the necessary incentive to preserve property for future generations. Schmidtz elsewhere20 suggests that while equal division might be appropriate for parties who arrive simultaneously at a particular place or resource, it has no applica­ tion to a world in which people are constantly arriving and departing. But this simply misses the point; irrespective of when we arrive or depart, in the present when we exercise a property right we restrict the freedom of others to use that property. It is the exercise of this right in the present that requires justification, not what those who arrived first did in the past. If Crusoe arrives first on the island he does not wrong Friday by cultivating the island, but he does wrong Friday once he arrives if he tries to force Friday to accept less than half of the island as his share. Schmidtz is undoubtedly right that first use of a specific asset is a useful focal point solution to dividing entitlements; indeed, as he points out, even animals use it for that purpose.21 Certainly it is entirely reasonable that if Crusoe has cultivated half of the island before Friday arrives, Crusoe should get the half he

19 See Schmidtz 1991. 20 Schmidtz 2006, pp. 109–113. 21 Ibid., pp. 152–157.

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cultivated. But what first use does not and cannot justify is giving the first user more than his share of a resource no one produced, at least without compensa­ tion to those deprived of their share. But suppose Crusoe is a great organiser and can co-ordinate activities on the land if he owns all of it so as to leave both him and Friday better off? Then Friday can transfer his land to Crusoe to permit these gains to be realised. Since the purpose of the Sovereignty Principle is to preserve both parties’ freedom, the Principle requires their actual consent to transactions that restrict that free­ dom non-reciprocally. Of course, there is every reason to think that persons who started with similar shares of natural resources would engage in trade that would permit them to realise mutually beneficial gains. What the Principle does not allow is imposition of such an arrangement over their objections. In a simple two-person island example where both persons are similarly situ­ ated, this requires that each receive roughly equal shares. This is not because of any principle of equality, but rather because reciprocity of harm requires it: if I harm you in the same way and to the same extent as you harm me, and the harming is mutually beneficial, I have not used you illegitimately for my own benefit, and vice-versa. The Reciprocal Sovereignty Principle explains how ori­ ginal acquisition of property could legitimately take place, without resorting to a separate “self-benefit” principle such as Alan Gibbard and Richard Arneson have suggested.22 Of course, a great deal if not most original appropriation of actual property in the real world would not satisfy the Reciprocal Sovereignty Principle, and is therefore not justified by that principle.23 Consider now an example from Michael Otsuka.24 He imagines two men and a blanket (to which neither has any prior claim) that is needed to keep warm. But one man is twice as large as the other. If the blanket is divided evenly the resulting portions will cover the thin man but not the fat one, and he will freeze to death. But if the thin man gets one third and the fat man two thirds, both will be comfortable. Otsuka concludes that a one-third/two-third division is just here, and I agree. He explains this by saying that justice requires equal oppor­ tunity to derive welfare from the blanket. I explain it by saying that the one­ third/two-thirds division means the harm that each man suffers from the loss of the rest of the blanket offsets the harm suffered by the other, while this is not true in the case of equal division. It is the unequal harms from loss of the add­ itional blanket that are critical. Two further island examples will illustrate the distinction further. Consider first an island inhabited by two people, Crusoe and Friday. The only available

22 See Gibbard 1976, Arneson 1982.

23 It also avoids the controversy over whether, prior to just appropriation, the world is jointly

owned, commonly owned or owned under a different regime. The answer is that it is not owned at all; we are free to use bits of it if we do not harm others, and if we do, such harm must be reciprocal if possible. The Reciprocal Sovereignty Principle applies all the way down, as it were. 24 Otsuka 2005, p. 26.

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source of food is fishing, and Crusoe is able-bodied and able to catch enough fish to survive by fishing for four hours each day. Friday is paralysed and unable to fish at all. Crusoe can, by fishing an additional four hours each day, catch enough fish also to feed Friday. Under the Sovereignty Principle, Friday’s rights are not violated if Crusoe decides that he prefers the additional leisure and refuses to fish the additional four hours a day, and Friday therefore starves to death. Although Crusoe is perhaps not an admirable character, because he merely withholds his own labour and does not impinge on Friday’s position or limit his freedom, he is within his rights to decline to work for Friday’s benefit.25 Compare the following example. The island has coconuts sufficient to feed one person, but again there are two residents, Crusoe and Friday. Crusoe is able-bodied and able to feed himself by fishing for four hours a day, while Friday is still disabled. It would clearly be wrong for Crusoe to insist on eating one half of the coconuts and perhaps fishing for two hours a day, thereby result­ ing in Friday’s starvation. This is because if Crusoe were not there, Friday could survive simply by eating the coconuts. By claiming half the coconuts when he has an alternative, Crusoe is harming Friday non-reciprocally. Justice demands in this situation that Crusoe allow Friday to have all the coconuts even if this means Crusoe must fish an additional amount to feed himself. But this is true only because Crusoe harms Friday if he eats the coconuts. It is true that giving Friday all the coconuts also violates the Reciprocal Sover­ eignty Principle; sometimes that is unavoidable, and this case is an example. In such cases I am inclined to say that priority must be given to needs over wants, so that the fact that Friday will starve whereas Crusoe will only have to work a few hours means that Friday must be given the coconuts. But note that this is only true because Crusoe harms Friday by taking any of the coconuts; it does not apply to our earlier example because Crusoe does not harm Friday but simply fails to benefit him. In general, with respect to land, the Reciprocal Sovereignty Principle would appear to demand that each person be allocated enough of it to enable him to meet his basic needs without being forced to rely on others: no one is entitled to exclude others from more land than he needs for this purpose until all have enough.26 Once this threshold is passed by everyone, the Principle is likely to require something resembling an equal allocation. Indeed, departures from equality might be so rare that it would not be worth the trouble to decide whether they existed in an individual case, and if so an equal allocation would

25 As Ripstein notes, there can be no duty to rescue under the Sovereignty Principle. Any such duty will require a separate justification. See Ripstein 2006, p. 237, n. 31. As we saw in Chap­ ter 4, no such justification is available. 26 This requires an account of needs and how they can be distinguished from wants. There are a number of promising efforts at this. See, e.g., Braybrooke 1987, Wiggins 1987, Miller 1999, pp. 203–229.

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be a sensible “focal point” solution, likely to reduce disputes over what different persons’ actual needs were. Considerations such as these permit us to deal with Amartya Sen’s argument that in some circumstances equalising resources may be insufficient if some are less able to make use of resources than others.27 To the extent that this is true of natural resources, it founds a just claim based on reciprocity of harm consid­ erations. To use a desert island example, if Andy can grow enough food to sur­ vive on five acres while Bob needs ten acres, then a five-acres/ten-acres division of the island may be required to make the harm reciprocal. In such a situation an even division of the island is clearly unjust. To see why Otsuka’s principle of equal opportunity to benefit from natural resources does not explain the results correctly, consider a different example. Crusoe and Friday are shipwrecked on a desert island, on which there are ample coconuts to meet both of their nutritional and other desires, but no other food. As it happens coconuts are Crusoe’s favourite food; he gets immense, nearly orgasmic pleasure from eating coconuts, while Friday merely tolerates them; he will eat them if that is the only way to survive but he derives no pleasure from them apart from easing his hunger. Does Crusoe owe Friday any compensation for the fact that he derives more well-being from the coconuts than Friday? Clearly not. The pleasure he derives from coconuts does not harm Friday in any way, and the mere fact that Crusoe is happier than Friday in the situation is not a basis for Friday to complain, since Crusoe’s happiness does not come at Fri­ day’s expense. Crusoe only owes compensation to Friday for the harm he causes him (which in our example is nil since there are plenty of coconuts), not for the benefits Crusoe derives from the coconuts. In the real world, of course, there is one more than one type of natural resource available, and the people among whom those resources are shared change as people are born and die. An auction of natural resources such as Ronald Dworkin’s28 would solve the first problem but not the second. The jus­ tification for an auction is that it forces those who take resources to compensate others for being deprived of them, by effectively forcing them to give up to others equally valuable resources, measured by how much those others value them.29 That justification fits perfectly with the Reciprocal Sovereignty Principle that I advocate. When I own land I restrict the freedom of other people to use that land. Even if my ancestor who appropriated it originally took no more than his share, and was thus not wrong to exclude others from it, that does not justify my excluding other people today from more than my share of land. For example, if a hundred-acre island was originally settled by ten people and each appropriated ten acres, when the population expands to twenty people the ten additional

27 Sen 1992.

28 Dworkin 2000, pp. 65–73.

29 Ibid.

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people must be given their share, since otherwise the continued rights of the initial appropriators to exclude them from the land are no longer reciprocally beneficial. Land would therefore need to be reallocated to five acres each, assuming the land is roughly homogenous in value. This is not true for property that is created by human beings, since if the person creating it did not harm anyone by doing so, he is entitled to it under the Sovereignty Principle. If an item consists of a “mixture” of natural property and artificial property then its owner is entitled to it if he acquired the natural portion in a way that compensated others for the loss of it, either directly by paying them or indirectly by allowing them to take a similar share. For example, if I cut down trees on land that is justly mine and use the resulting wood to build a chair, I own the chair. The same is true if I instead buy the wood from someone who was entitled to it, since under the Sovereignty Principle people are generally free to transfer their property as they see fit.30 David Hume summarised the reasons for this as well as anyone: Who sees not, for instance, that whatever is produced or improved by a man’s art or industry ought, for ever, to be secured to him, in order to give encouragement to such useful habits and accomplishments? That the property ought also to descend to children and relations, for the same useful purpose? That it may be alienated by consent, in order to beget that commerce and intercourse, which is so beneficial to human society? And that all contracts and promises ought carefully to be fulfilled, in order to secure mutual trust and confidence, by which the general interest of man­ kind is so much promoted?31 Persons who cannot use any natural resources are not harmed if others appropri­ ate them, so the Sovereignty Principle might be thought not to require any transfers to them (leaving to one side their obvious need for a place to sleep and similar considerations). It is permissible to give the less talented more than their pro-rata share of land and natural resources only if they are disproportion­ ately harmed by the appropriation of natural resources by the more talented. Someone who is completely unable to use the land is clearly not harmed by land appropriation in normal circumstances. Rather, he is dependent for his sur­ vival on the labour of others, and giving him a disproportionate share of natural resources in order to bargain with others to provide for his needs harms the able-bodied non-reciprocally and is therefore unjust.32

30 See Steiner 1994, pp. 234–236.

31 Hume 1975, p. 195.

32 The same applies even more strongly to the “real libertarianism” advocated by Philippe Van

Parijs in Van Parijs 1997. First, Van Parijs bases his analysis on a concept of “real freedom” that is based on a definition of freedom radically different from the one adopted herein, in which only limitations imposed by other persons count as restrictions on freedom. Second, he advocates “leximinising” that freedom, an equality-based approach that I have previously

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However, in many circumstances that might be too strong a conclusion. Con­ sider a three-person island inhabited by Andy, Bob and Carol. Suppose the only means of nourishment on this island is the result of farming and Andy and Bob are able-bodied but Carol is disabled. If the island has fifteen acres and it takes five acres of farming to feed one person, Carol is entitled to her five acres even if she is not able to farm herself, as long as either Andy or Bob is willing to farm her five acres in order to feed her. In general, assuming that enough people are willing to help the disabled provided they are given resources to do so, the disabled are every bit as entitled to the resources necessary to make that possible is anyone else is, and perhaps a bit more. In the real world the number of people grows, and land would have to be constantly re-divided and reallocated to satisfy these principles, a terribly ineffi­ cient process that would require other ways of trying to assure that the proceeds of natural resources are divided fairly. In addition, since actual titles to land have largely not been based on these principles, realising them in the real world might involve massive transfers of land with resulting dislocation and unrest. The most sensible solution that has been proposed to realise a just distribution of the benefits of land is Henry George’s Single Tax, essentially requiring each person to pay a tax equal to the rental value of the land and other natural resources he uses, but allowing him to retain his entire income that derives from his labour and talent. The rationale for this tax is simple; it requires each person to compensate the rest of the community for the harm he causes them by depriving them of the use of natural property he takes. To use Peter Vallen­ tyne’s terminology, the Single Tax forces those who appropriate natural resources to pay the competitive value of the rights they claim, but it does not permit the community to tax the full benefit derived from those resources if that is in excess of the competitive rent, since the excess is not needed to com­ pensate for harm.33

rejected. Third, he includes in his account of sources available to fund redistribution rents earned by people from jobs they hold, at least to the extent that such rents result from the fact that the economy is at less than full employment. This is of course radically inconsistent with the Sovereignty Principle, in which competitive harm (the fact that I get a job that you might otherwise have gotten) simply does not count as harm, because so treating it is incon­ sistent with the employer’s right to transact with whoever he wishes. And finally, he includes a right to compensation held by people who have a genetic endowment that is inferior to all other people’s endowment. This again is inconsistent with the Sovereignty Principle; if the able did not cause the disability of the disabled they have no duty to compensate the disabled for it, since their being able-bodied does not harm the disabled. 33 Vallentyne 2001. Technically the tax should consist of rent on what each person has appropri­ ated in excess of his share, with the sums distributed to those who have appropriated less than their fair share in proportion to the shortfall. But that complicates the calculation needlessly. One partial move in this direction might be an exemption amount, with the tax proceeds first being used to make payments to those who own less than the exemption amount, along the lines of proposals for negative income tax. For simplicity’s sake, however, I will assume a tax equal to the full rent of land.

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The arguments for such a land value tax extend beyond the reciprocal harm argument. Arguably it is the most efficient form of tax, since as is well known to economists, taxes on rents are efficient because they do not lead to substitution effects. A tax on labour causes less labour to occur, but a tax on land will not lead to less land existing. In addition, in modern societies, at least in urban set­ tings, much of the value a particular piece of land has is attributable in large part to activities of neighbours, and in some cases to governmental actions such as providing good schools or transport, and the Single Tax permits the commu­ nity to recoup that gain.34 Indeed, the argument goes further. Since land is in extreme inelastic supply, owners of land frequently are able to capture much, even most, of the gain that is due to the activities of both capital and labour. John Stuart Mill recognised this well: Suppose there is a kind of income which constantly tends to increase, without any exertion or sacrifice on the part of the owners: those owners constituting a class in the community, whom the natural course of things progressively enriches, consistently with complete passiveness on their own part. In such a case it would be no violation of the principles on which private property is grounded, if the state should appropriate this increase in wealth, or part of it, as it arises. This would not properly be taking anything from anybody; it would merely be applying an accession of wealth, created by circumstances, to the benefit of society, instead of allowing it to become an unearned appendage to the riches of a particular class.35 Indeed much of the writing of many eighteenth- and nineteenth-century liberals that are today invoked by the left as supporting large-scale redistribution has to be viewed in light of the fact that for most of human history, inequality resulted almost entirely from ownership of land by a very small proportion of society, with most of the wealth that gave rise to that ownership due to inheritance or conquest, not to work or entrepreneurial activity by their ancestors. When we read a Jane Austen novel and she refers to an eligible bachelor as having an income of ten thousand pounds per year (a princely sum in today’s money), the source of that income is rent paid by tenant farmers to a landlord who furnished nothing apart from permission to farm his land. That sort of inequality is impos­ sible to justify, but it is very different from the type of inequality that results from successful innovation, return on investment, talent and other activities.36

34 See generally Atkinson and Stiglitz 1980, pp. 524–525.

35 Mill 1998, pp. 629–630.

36 For an argument that a great deal of modern inequality does result from differential private

ownership of land, with particular reference to the United Kingdom, see Ryan-Collins, Lloyd and Macfarlane 2017. The arguments in that book are largely consistent with Georgist eco­ nomics, although some of them reflect a more general commitment to social democratic

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There are also significant arguments that private ownership of land if not checked can lead to excessively volatile land prices and resulting land price bub­ bles, such as those that led to the 2008 crash. This is especially true given the link between banking and other forms of finance and land prices, something that has become particularly important in recent years with the large growth in the use of bank finance for all or nearly all of home purchases.37 Although this argument would require an excursion into the complexities of banking and financial regulation theory that is far beyond the scope of this book, there is at least some reason to believe that a land value tax could have beneficial economic consequences wholly apart from the distributive considerations I discuss here. Arguing for a land value tax as a method for countering the unequal distribu­ tion of land and other natural resources raises two closely related concerns that require brief comment. First, a Single Tax requires a state, and it is far from clear that a state can be justified in a way that is consistent with the Sovereignty Prin­ ciple. That issue was addressed in Chapter 6. Second, land is worth far more as a protection for individual freedom than its mere rental value. To take just two of many reasons, having land to work gives me an alternative to wage labour, as Marx realised, and therefore may prevent me from being forced to work for a subsistence wage due to a lack of alternatives. Second, groups of people owning land together can permissibly form communities to pursue projects while exclud­ ing possible free riders in their midst. These two vital functions that land can per­ form suggest that it may not be enough simply to give everyone their fair share of the value of land; the option of land itself must be available. How should the proceeds of land value taxes be spent? Historically the sugges­ tion was that it should be the source of funds for government, with any excess distributed pro rata. As a matter of justice that seems wrong; presumably the pro­ ceeds of the tax should be divided fairly according to the principles that gave rise to the tax, and then government funded under whatever rules one concludes apply to funding government; it would be surprising if those turned out to be identical. For example, if one concluded that in principle everyone was equally entitled to the proceeds of the tax, using it to fund government would be unjust unless each person’s fair share of the cost of running government was also equal.

Left libertarianism What I have said so far is consistent with a number of recent theories that are broadly labelled “left libertarian.” All of these theories combine some respect for the Sovereignty Principle with a belief in some variant of equal ownership of

redistribution that is not consistent with the arguments of this book. For a similar recent argument, see Shrubsole 2019. 37 See, e.g., Harrison 2007, Turner 2015. In the former book, written in advance of the 2008 crash, Harrison predicted the crash, although as the title indicates he was off by two years on its timing.

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the natural world. One way to characterise these theories is to say that they adopt more egalitarian versions of the Lockean Proviso than Nozick’s fairly modest version. The range of positions is well summarised by Peter Vallentyne in his introduction to his and Hillel Steiner’s excellent anthology, and I shall not repeat it.38 A number of critics have expressed scepticism at the possibility of combining egalitarianism and libertarianism in this way. For example, Mathias Risse39 and Barbara Fried40 have both concluded that while there is no logical contradiction between self-ownership and egalitarianism, it is hard to find a coherent reason for holding both views, since they start from such different assumptions. These complaints have considerable force against variants of left libertarianism that combine a belief in the Sovereignty Principle with a belief in the value of equal­ ity. I have argued elsewhere against the value of equality,41 and see no reason why it is needed so long as we remember that the Principle itself applies to all. In fact, most of the leading recent philosophical versions of left libertarianism violate the Sovereignty Principle. This is because they overlook the limits that the Reciprocal Sovereignty Principle places on equalisation. The Principle pro­ hibits people who appropriate property from harming others by doing so, but does not allow their freedom to be violated for the sake of equality. Consider first Hillel Steiner. At one time he advocated an essentially Georgist form of left libertarianism, based on taxing the rent of land and redistributing the proceeds to all persons equally.42 More recently, however, Steiner has amended his approach in two critical ways: by providing for 100 per cent confis­ cation of the estates of those who have died, and by providing for a tax on par­ ents’ use of their genes to produce children. The theory behind the first is that dead people have no rights; the theory behind the second is that genes are nat­ ural resources and payment must be made for their use.43 Note that in neither case is anyone harmed by the transactions that Steiner seeks to tax to fund redistribution. Assuming that the deceased rightfully came by his property, he harms no one by transferring it at death to his heirs. Although Steiner is right that the dead have no rights, wills are made before death but merely effective after. If the deceased could have properly transferred his property before death, he harms no one by waiting until after he dies. It

38 39 40 41 42 43

Vallentyne 2001.

Risse 2004.

Fried 2005.

See O’Brian 2010.

See Steiner 1977, 1981.

Here I oversimplify a bit. Steiner does have a complex argument that taxation of genetic

information is necessary to avoid the conclusion that children are the products of their par­ ent’s labour and thus owned by their parents. See Steiner 1994, pp. 237–248. I prefer to avoid this result directly by ruling out people as the sorts of things that can be owned (hence my preference to avoid the term self-ownership). See Curchin 2007. Steiner’s response (Stei­ ner 2008) seems implausible to me, but space does not permit a fuller discussion.

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seems perverse to say that someone is free to spend his money on lavish dinners and cruises around the world but not to benefit his family after he is gone; it is an unwarranted intrusion on his right to live his life as he sees fit and promote the values he prefers so long as he does not harm others by doing so. Moreover, it should be obvious that if estates were confiscated on this basis, other approaches, including trusts, inter vivos gifts and related devices, would be used so that only the incautious would have their estates confiscated. Assuming the deceased paid for any natural resources he used and therefore owned them when he was alive, he had the full right to transfer them before or after death, and no one was harmed by the transaction. At most, he would be required to allow the value of any natural resources he used to lapse into an unowned state at death to be reallocated among the living. The same is even more clearly true of genetic information. My parents, in begetting me, did not deprive anyone of anything they had any possibility of using; their own ova and sperm were theirs if anything is, and no one was harmed by their using their own bodies and their contents to beget me. Indeed, having me was the only way they could preserve the particular packets of genes that I possess; otherwise those genes would not exist after they die. The idea that they owe anyone payment for using their own genetic information seems absurd. Similar issues are presented by Michael Otsuka’s account.44 He argues that people who suffer from handicaps that prevent them from engaging in any pro­ ductive activity are entitled to own enough land so that they can, by charging rent, force those who produce to support them. The example he gives is of an island where the able-bodied own the productive land while the disabled own the beach and can charge the able-bodied for access to the beach and thereby support themselves. Under the facts hypothesised by Otsuka, this again violates the Sovereignty Principle. It is simply an indirect way of forcing the able-bodied to do what they could not be forced to do directly. The disabled are not harmed by the able-bodied appropriating land for which the disabled have no use, and need not be compensated by being given beach property which they can use to coerce payment by limiting the freedom of the able-bodied to use that property. Peter Vallentyne’s recent proposal that the proceeds of a Single Tax be used to fund the promotion of equality of opportunity for welfare is subject to similar objections.45 On Vallentyne’s theory, people whose wealth derives solely from their personal talents and who do not own land have no duty to promote equal­ ity, while those who do must pay a tax, the proceeds of which must be used to promote equality. But why should owning land give someone a duty to promote equality that someone who did not own land would not have? The tax is not used to compensate for harm caused, and therefore is unjustified.

44 Otsuka 2005, Chapter 1. 45 See Vallentyne 2007, pp. 200–202.

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Having said that, there is something to be said for treating the proceeds of a land (and other natural resources) value tax as a uniquely available source for funding whatever redistributive duties we decide to adopt, whether or not these duties flow directly from ownership of land. Although most of us reject equality as a demand of justice, many feel a moral duty to provide others with what they need in order to have a minimally decent life if those others are unable to pro­ vide it for themselves.46 In particular, a theory that is based on the need to avoid domination of some by others, and to ensure that persons have enough to be able to live their own lives in accordance with their own values and not those imposed on them by others, might well incorporate the desirability of allocating to all persons enough land or the proceeds thereof to enable them to do so, whether or not they are harmed by the process of appropriation itself. Since land and the rent thereof is a shared resource, and since some portion of the need of the poor may be due to being deprived of access to land, there is cer­ tainly an argument for devoting at least a major portion of the proceeds of a land value tax to the poor. One could also make an insurance argument for this step: rather than distributing the proceeds of the tax equally to everyone, the proceeds could be used to purchase an insurance policy that is used to pay the needy in accordance with their need.47 The remainder of government would then be financed by other means (including other taxes if those can be justified separately).48 The sums at issue could be quite significant. In the United Kingdom, for example, the Office for National Statistics has recently estimated the total value of land alone in the country at £5 trillion,49 which amounts to over £76,000 per person (including children). This amounts to over one half of the net worth of the country as a whole, making land the UK’s most valuable nonfinancial asset. This does not include the value of other natural resources, such as mineral rights (e.g. North Sea oil), the electromagnetic spectrum and the right to use the atmosphere as a waste deposit site (e.g. proceeds of a carbon tax). The amounts in question are potentially huge, although I do not suggest that all of this should be distributed in the form of a basic income or citizens’ stake or other distribution. Indeed, there are strong arguments that at least major portions of a Single Tax should be used for other purposes. In one sense, the argument of classics such as Thomas Paine’s Agrarian Justice and Henry George’s Progress and Pov­ erty was for an earlier time, when society was primarily agrarian and lack of access to land a major driver of poverty. Arguably that is less so today, and

46 See, e.g., Fried 1983, Lomasky 1987, pp. 125–128.

47 This is essentially the idea behind Brody 1983.

48 See Chapter 10, where I argue that the Principle of Cooperation allows government where

public goods are financed on the basis of willingness to pay, based on the principles of Lindahl Taxes, so long as such governments are as small as possible so that no one is forced to pay for goods he does not value at more than their cost to him, in taxes and otherwise. 49 See Office for National Statistics 2017.

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giving people an equal share of land and natural resources less compelling than providing other things, even though those other things are not themselves entitlements. In particular this is true of education. The Reciprocal Sovereignty Principle does not itself create any entitlement to education: education is not a natural resource but rather comes entirely from human labour. There is no basis for saying that the rich or middle class have a duty to educate the children of the poor if they have not wrongfully caused their poverty. Nevertheless, in twenty-first-century society a free education is probably more valuable to most people than access to their aliquot share of land. A society that says, in effect, we are not giving you your just share of land and natural resources, but are instead giving you a free education at state expense, is arguably making everyone better off by freeing up land for more productive uses while giving those deprived of their share of the land something more valuable instead. Similarly, there are advocates of using the proceeds of a carbon tax to fund provision of free health care. Once again health care is not even arguably some­ thing people have a right to50—it is the product of human labour, not natural resources. But assuming that one is convinced that health care is better funded by government, a dubious proposition but one too difficult to debate here, there is much to be said for using the proceeds of a land value tax and/or a carbon tax to fund it. So if we are concerned, as we should be, that a high basic income would have serious adverse effects on work incentives, using it to fund universal primary and secondary education and health care would be a sensible alternative. The Reciprocal Sovereignty Principle would certainly not require that all land be privatised; indeed it might well require the opposite, since keeping some public rights of way might be essential to avoiding someone’s land being isolated, thereby unduly restricting his freedom of movement.51 Nor would it necessarily justify absolute ownership rights in land. Using the “bundle of sticks” metaphor for prop­ erty rights originated by Hohfeld,52 each stick in the bundle must be separately shown to be justified by the Principle. Although familiar economic arguments gen­ erally establish that private property in land generates benefits that greatly exceed any harm in the aggregate,53 particular aspects of property in land may not do so. Traditional economic analysis of property rights sheds considerable light on this problem, but such analysis generally focuses on whether total benefits exceed total costs. The Reciprocal Sovereignty Principle requires that each person benefits

50 Of course, plenty of people do claim we have a right to health care, education, food and other so-called needs. But those arguments are all premised on some form of moral realism, and therefore can be safely dismissed. No plausible argument based on mutual advantage can justify a duty to provide for other people’s needs regardless of cost, and it is abundantly clear that any duty to provide for everyone’s needs will easily fail a cost-benefit test for numerous people who would be forced to work to fund it. See generally Chapters 3 and 4. 51 See Ripstein 2009, pp. 232–266. 52 Hohfeld 1913. 53 E.g. Demsetz 1967, Ellickson 1993.

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overall and thereby would require the much stronger showing that appropriation of each “stick” is Pareto superior to non-appropriation, as opposed to the weaker Kaldor-Hicks test that approves of policies where the winners could compensate the losers without requiring that they actually do so. The Reciprocal Sovereignty Principle would favour assigning to each person a bundle of rights in land and natural resources that is roughly equal, but there is room for considerations of efficiency in deciding exactly which sticks are assigned to which bundle. Thus, if a particular legal system concluded that rail­ roads needed to have the right to emit sparks, and that farmers were better able to avoid fires by not stacking hay close to railway lines, it could assign that right to the railroad, but then the farmers would have to have other rights that made their bundle equally valuable (possibly by having more land, or possibly by being compensated when the railroad was built for the loss of their right not to have sparks thrown on their property). The overall theory of distributive justice that results from application of the Reciprocal Sovereignty Principle is one where a person’s holdings are essentially based on his or her contribution, as measured by the market. As Ryan Muldoon has argued, this overall result is consistent with what we should expect a theory of justice as mutual advantage, based on social norms, to endorse.54 Measuring contri­ bution by the market is appropriate because the market rewards people based not on some fictitious “social” value of what they do but rather by how much others are willing to pay for what they do.55 People who do not like the distribution this creates are of course free to transfer their own holdings to create a distribution they prefer, but have no right to force others to agree to their own conception of what is valuable. Given the subjectivity of value, this is what we should agree to. These considerations would also justify fairly extensive rights in the commu­ nity where land is involved to reallocate rights to particular parcels of land. Although I have a right to privatise my share of the land so that I can act with­ out needing the consent of others, there is no inherent right to any particular bit of land for this purpose. The community thus should be able to take my plot and substitute an equally good one, compensating me for any improve­ ments, if it needs my particular plot, or even if I otherwise would be able to extract hold-out rents because of my particular plot’s location. A fairly extensive right of eminent domain is easy to justify under these principles. Indeed, it is probably a necessity, since otherwise private property could in many circum­ stances fail the Reciprocal Sovereignty test. In addition, I submit that the arguments of this chapter can undermine argu­ ments that attach excessive weight to an alleged right to reside in a particular place or city. While one has a right to an equal share of land and natural resources, and while property rights in land are generally good things, they are not necessarily

54 Muldoon 2016, pp. 102–106.

55 See Hayek 2006, pp. 80–82 (“in a free society, we are remunerated not for our skill but for

using it rightly”).

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absolute if one’s site-specific rights are used in a way that prevents others from real­ ising potential local public goods. For example, assume that 80 per cent of the inhabitants of an area want to have a local park and are willing to pay their share (I will leave for now the issue of how that share is determined) of the cost. Although, as I will discuss in Chapter 10, the mere fact that they are a majority does not give them the right to impose their preference on me, there is definitely something problematic about me being able to insist on remaining where I am, enjoying the benefit of the park without paying for it, in a way that could prevent them from being able to carry out their own preferred outcome. Some ability to force me either to contribute or move, if I have a choice of places that do not require me to fund a park I do not want, is arguably justifiable on the basis of mutual benefit, as long as it cannot be used to exploit those with minority preferences. I will come back to this issue in Chapter 10, and will conclude that this idea can justify local provision of some public goods that could not justifiably be provided at a national level. At the same time, I want to caution that these considerations do not warrant the extremely burdensome requirements that many liberal egalitarians and current advocates of “basic income” would impose on us. The vast majority of the income that most of us earn, certainly in my own case and that of almost everyone I know, is based on the provision of services, not the ownership of land and other natural resources. When Tiger Woods is paid for playing golf, or I am paid for teaching law, we do not violate the rights of anyone, and no one else has any right to a share of that income. Taxing that income for any pur­ poses that do not prove mutually beneficial, and in particular “redistributing” income earned by the performance of services, cannot be justified on any theory of mutual advantage. Taking income received for providing services to redistrib­ ute it to others, unless justified as mutually beneficial insurance, remains theft, pure and simple.56

Past “injustice” What of the fact that previous law and previous acquisitions of property were not based on the principles I advocate in this chapter? What implications does that have for what we should do? My conclusion is that this has few if any such implications. As I discussed in Chapter 3, under a contractarian theory such as the one advocated in this book, only actual agreements and conventions are binding. The fact that a norm, practice or institution would be mutually advan­ tageous if put into practice does not create any obligations on anyone; only an actual norm, institution or practice can obligate us. In the absence of such a norm etc., we are each allowed to do the best we can for ourselves subject to the actually existing norms etc. in our societies.

56 See Moller 2019 and the discussion in Chapter 10.

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In Chapters 2 and 3 I suggested that we see morality and justice as like the rules of sports and games; that is, as human creations that are binding because we choose to play the game and rules are necessary to make the game work. For the practice to work people must comply with, and only be required to comply with, the actual rules that are in effect, and the not the rules that would be ideally correct or that they would prefer to have. It is especially critical that people are not punished for, or even made civilly liable for, breaking rules that did not exist at the time they acted. Thus, when we change the rules of a sport, we do not go back and take away titles or victories that were won under the earlier rules, even when we are firmly convinced that the new rules are better. Just recently, for example, the rules of golf were changed to allow players to hit the flagstick when putting from the green, something that previously incurred a penalty. But we did not go back and wipe out penalties that were previously imposed on players under the old rules, much less attempt the hopeless task of deciding who would have won tournaments under the new rules and redistributing prize money to reflect these assumed different winners. Existing property rights are based on the rules that were in effect when the property rights in question were acquired. I think we should move in the direc­ tion I argue for in this chapter, but should do so slowly and without making dramatic changes in the distribution of rights that were legitimately acquired under the rules as they existed. Any other practice would involve effectively assuming that the new rules were always binding, much as in George Orwell’s 1984: when a new war broke out, history was rewritten to state that the two countries had always been at war. Such a view is totally incompatible with the contractarian approach advocated here.

Conclusion Considerations of justice, in the form of requiring that any harm we do be reciprocally beneficial, by themselves generate significant requirements that nat­ ural resources be distributed roughly equally or that those with less are fully compensated. It may not require compensation of those who are naturally entirely dependent upon the labour of others. In any event, the theory argued for here already has substantial redistributive implications. For example, many extremely wealthy people owe their fortunes to holdings of real estate, and those fortunes are likely to be illegitimate under this theory. More importantly, it was the argument of Marx and a number of latterday theorists following in his tradition that the working class was able to be exploited because they had been illegitimately deprived of access to the land, and therefore left with no alternative to working for capitalists in order to survive.57 That critique is entirely consistent with the theory of this book, and

57 See Thompson 1991.

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to the extent that present-day poverty results from this phenomenon, it may call for compensation. Moreover, this argument is consistent with the movement for rights for landless workers in much of the developing world, along with the movement for ensuring equal access to vital resources such as water and live­ stock in those countries. It is also consistent with calls by writers such as Thomas Pogge58 for a global resources tax on items such as oil, mineral wealth and other natural resources, with the proceeds of such a tax being used for the alleviation of severe poverty. Finally, the implications of this theory for issues of environmental justice are potentially quite strong, since non-reciprocally benefi­ cial pollution is a clear violation of the Sovereignty Principle. Indeed, a carbon tax is a textbook example of a tax that is justified based on the idea of internalis­ ing costs, as are other Pigouvian taxes. After all, the use of the atmosphere as a dumping place for the waste products of combustion and other activities is a perfect example of the use of a natural resource, and a tax to make up for the unequal use of this resource is easy to justify on Georgist grounds.59 The main tax that cannot be justified on these grounds is an income tax. The only possible justification for an income tax would be as a measure of ability to pay, but as I argue in Chapter 10, ability to pay taxation is the Willie Sutton theory of tax. A theory of justice as mutual advantage requires us to move away from income taxes, and towards the types of taxes argued for in this chapter.

58 Pogge 2008. 59 See, e.g., Barnes 2001.

8

Private law

In Chapter 7 we examined the acquisition and scope of private property, and con­ cluded that considerations of mutual benefit should lead to a regime of property that combines roughly equal shares of land and other natural resources with the right of those who create value by their own efforts (“labour”) to keep the fruits of those efforts. What they can do with this property, and how they interact generally, depends critically on the rules of private law. I will now consider what justice as mutual benefit suggests these rules should be, recalling of course the caveat in Chapter 3 that this is an approach to justice and not a theory that can be expected to generate unique determinate results, which will rather depend on the rules and customs that exist in different societies. We saw in Chapter 1 that Hayek recognised that social norms arise by an evolu­ tionary process, and it is this process that he saw as leading to law in its proper sense—the rules of acceptable conduct between persons. Hayek termed this type of law nomos, and largely equated it with the rules of private law as they existed at least in common-law countries, where private law was and still is largely judge made, and based on custom. The same was true of Roman law, as Hayek notes—the law set forth in Justinian’s Institutes was largely the outcome of decisions by legal experts known as jurisconsults: statutes played only a minor role in Roman private law.1 Although we today refer to the common law as judge made, this was not the view of the classical common lawyers, who viewed the law as existing on its own, separ­ ate from the efforts of the judges to articulate it in words. This view was ridiculed by legal realists such as Oliver Wendell Holmes, who derided it as a “brooding omnipresence in the sky,”2 but Hayek has a great deal of sympathy for the view, while recognising that ultimately the common law, like Roman law and most other law until recently, derived from custom. For Hayek the idea that the law was dis­ covered rather than made was vital—he explicitly rejects the idea that the norms of private law come from the sovereign as an invention of the French Revolution. Hayek contrasts this unwritten customary law that judges can articulate and develop but not make with thesis, his term for legislation, which is created by the legislature.

1 See Nicholas 1976.

2 Southern Pacific Co. v Jensen, 244 U.S. 205, 222 (1917) (Holmes, J. dissenting).

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For Hayek the latter type of law is designed to further particular ends of the gov­ ernment, and contrasts sharply with private law which has no purpose of its own, but is rather designed to provide a backdrop for private persons to fulfil their own ends.3 Similarly, Bruno Leoni in his Freedom and the Law4 argued that the common-law approach to law as discovered, not made, was vastly superior to the civil law idea that private law was like public law in that it represented the will of a sovereign (normally the enactor of a civil code). Leoni indeed con­ cluded that the legislature should be disabled from altering the common law. Hayek did not go this far, as he concluded that sometimes legislation was needed to correct errors in judge-made law, although we might well question whether Hayek was right in this—while some legislation undoubtedly has improved the common law, considered as a whole legislation has undoubtedly done more harm than good in the realm of private law. This view of private law has considerable overlap with the argument of Ernest Weinrib in The Idea of Private Law.5 Weinrib famously opines that private law is like love, in that it has no purpose other than to be itself, which is similar to Hayek’s conclusion that it exists to provide a framework for private persons to serve their own purposes. Weinrib concludes that private law is largely based on Kantian right as set forth in the private law portions of Kant’s Rechtslehre.6 Simi­ larly, Arthur Ripstein has recently argued that the common law of tort is largely based on Kant, as has Allan Beever.7 But this view of the common law also draws significant support from the law and economics literature. The authors of the leading textbook in that area, Robert Cooter and Thomas Ulen, note that “common law approximates a system of maximum liberty, which allows any use of property by its owner that does not interfere with other people’s property or protected rights.”8 This is indeed for the most part true, and there is every reason to think that the common law would become even more mutually beneficial over time if it were not distorted by legislation designed not to make it more beneficial, but to benefit some and harm others. I have argued in the previous chapters that while Kant’s ethical philosophy fails like all other moral realist views, it does contain one central insight: that morality consists in following ourselves the rules that we demand that others follow. But Kant’s political philosophy, which builds on this fundamental insight, is on the right track, at least in its private law aspects. In particular, as argued in Chapter 4, the Sovereignty Principle that Ripstein derives from Kant

3 4 5 6 7 8

Hayek 2012, pp. 69–136.

Leoni 1991.

Weinrib 2012.

Kant 1965.

Beever 2016, Ripstein 2016.

Cooter and Ulen 2012, p. 112.

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and Mill is a useful starting point for private law. But it needs to be supple­ mented by the Principle of Cooperation to allow for mutually beneficial restric­ tions of freedom, thus yielding what I have called the Reciprocal Sovereignty Principle, which I believe provides the best overall summary of the legal and political basis for a private law based on mutual benefit. Tort law scholarship in recent years has been the site of a battle now known as the “tort wars”9 between broadly Kantian approaches to tort law, of which Weinrib and Ripstein are examples, and law and economics approaches, typified by Richard Posner10 and Stephen Shavell.11 In part at least these wars are over which approach more adequately reflects tort law as it actually is. The truth, as I have not been the first to perceive, is that both views find warrant in the case law. I think the Reciprocal Sovereignty Principle works at least as well as either of these approaches in explaining existing law, but my goal in this chapter is not to establish that—it would require far more discussion of tort doctrine than we have time for, and would distract us from what is the main point. And that is that the Reciprocal Sovereignty Principle is the approach most compatible with a view of justice as based on mutual benefit, and is therefore the way we should be doing private law, whether or not it accurately reflects how it has been done to date. In general I believe that the Reciprocal Sovereignty Principle supports a Hayekian approach to common-law decision-making. This approach takes the judge’s task as involving primarily determining what the parties’ reasonable understanding of their obligations would have been based on existing law and custom, and would reject any approach that generally allowed judges to alter this law for the purpose of achieving what the judge believes is either right or economically efficient. It might leave room for efficiency considerations to play a role in cases where the prior understanding of the parties as to their obliga­ tions is indeterminate, but even here considerations of overall fit between the parties’ respective contentions and the rest of the law would in most cases be more important. This approach would fit in reasonably well with Ronald Dwor­ kin’s “interpretive” approach to jurisprudence, but without Dworkin’s moral realist gloss.12 In other words, the judge is interpreting the actual social norms of his society and their accompanying understanding of the parties’ legal obliga­ tions, and not “true morality” as he understands it, as Dworkin at least some­ times seems to believe. In this respect it is quite similar to Melvin Eisenberg’s understanding of common-law decision-making.13 That said, the most important rule for resolving doubtful cases under my approach is the Sovereignty Principle itself. Doubtful cases should be resolved in

9 10 11 12 13

See Levin 2008. Posner 2011. Shavell 2004. See Dworkin 1988, 2013. See Eisenberg 1991.

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favour of freedom; in other words, people can do as they wish unless the law clearly requires otherwise. In contract cases this means resolving doubts against finding that parties have contractually committed themselves. In torts it means resolving doubts against creating new torts or expanding existing ones. That which is not clearly prohibited should be permitted. I should note here that in the area of private law I include criminal law, as does Hayek, as it sets and reflects the standards of conduct that are expected in society by private persons. Criminal law is frequently considered part of public law, especially in civil law countries, but I think that is a mistake. I follow Hayek in treating private law as the law that sets or reflects how people are required to act with respect to other people, along with what happens when they fail to meet these requirements. This includes both civil remedies such as damages and injunctions and criminal penalties such as fines and imprisonment. Public law I take to be the branch of law that deals with how the government is run and the remedies when it is not run properly, such as judicial review. In most common-law countries at least the government can be liable in contract or tort just like private parties, and if so this is part of private law. I should note that when I say that the common law of a subject is mutually beneficial, I am referring to the overall law of a particular area, such as contract law. One cannot reasonably ask that every single rule of an area such as contract law be mutually beneficial: that would be totally impractical. What is important is that the rules of contract are overall mutually beneficial, and the individual rules justified within that overall scheme. Individual rules within the scheme are justified by their consistency with the evolved social norms of the community and the rest of the law in the area, and where these are indeterminate perhaps with the drawing of lines based on efficiency considerations. On this account one can criticise an individual rule on the basis that it is inconsistent with the overall scheme, or on the basis that a different rule would be more mutually beneficial, but this would not undermine the status of the law as a whole unless the law as a whole in that area was not mutually beneficial. Below I will set forth a brief account of the private law I think the Reciprocal Sovereignty Principle would generate.14 For the most part, most of the private non-statutory law of both England and the United States, the two jurisdictions with which I am most familiar, is consistent with this sketch, and even where it is not the differences are not such as to render the laws of those jurisdictions radically inconsistent with justice as mutual advantage. The criminal law, how­ ever, is far more extensive in both jurisdictions than a theory of justice as mutual advantage would warrant and, as I suggested in Chapter 5, should be radically altered as a result, in particular by repealing all victimless crime laws such as drug laws.

14 I do not discuss property law as that was covered in the previous chapter. The difficult issue of intellectual property is briefly discussed in the next chapter, as that law is largely statutory.

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Torts In Chapter 4 we saw that although we start from a “blameless liberty” in which we can do as we wish but others are free to resist or retaliate when we do, the situation is such that it is in everyone’s interest to agree not to harm each other in exchange for a similar agreement by everyone else. Earliest tort law reflects this, as most societies have prohibitions on intentionally inflicted physical harm to the person of another, along with, in early law, frequently tables of standard tariffs for when such harms are inflicted.15 As society becomes both more productive and more civilised, tort liability tends to expand to encompass some types of unintended harm and harm to interests other than physical safety. The reason for this is not hard to find: as societies advance, they tend to evolve norms that substitute legal redress for physical aggression—the elimination of the duel being one example of this ten­ dency. A more productive society can afford to fund courts to resolve disputes that at earlier times would be resolved by self-help. It is remarkable that Roman law did not include a general principle of liability for negligently inflicted phys­ ical injury, and neither did English law before 1932, although in both cases there were pockets of liability in a general scheme of no liability. It seems that only the advent of industrialisation and the increased harm it enabled made it important to have a general rule that negligently inflicted physical harm would normally be actionable. A consideration that favours the expansion of tort liability generally is that of cost internalisation. One way of conceptualising the agreement not to harm that we concluded was likely to arise conventionally is as a form of cost internalisa­ tion—I agree not to impose costs on you in exchange for you agreeing not to impose them on me, and we agree to shift those costs onto the wrongdoer if these duties are violated. Paying money is essentially another (albeit inferior) way of complying with the primary obligation not to commit the tort to begin with, an obligation that does not go away merely because it is breached.16 Indeed, Arthur Ripstein has forcefully argued that virtually all of tort law can be understood as following on from our obligation to respect the sovereignty of others over their persons and property, along with a recognition that this obliga­ tion survives its own breach and requires us to come as close as possible by instead paying damages or otherwise repairing our wrongs.17 Jan Lester has advocated a theory of freedom as the absence of imposed costs and a general libertarian scheme based on maximising freedom so conceived.18 Although we need not go this far, there are good pro tanto reasons why we would want to agree in many cases to refrain from imposing costs on each other and to shift those costs to the wrongdoer who violated such a duty. Of course, these would

15 16 17 18

See, e.g., Berman 1983, pp. 54–55.

See Gardner 2011.

Ripstein 2016.

See Lester 2000.

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have to be weighed against the reasons not to do so—in particular the fact that shifting costs is itself costly. Oliver Wendell Holmes concluded that in many cases the benefits of shifting costs did not outweigh the costs of doing so, and therefore the best rule would be to let the loss lie where it falls.19 This is espe­ cially likely to be true where people are roughly equally likely to be on either side of an issue. This idea underlies the advocacy of “no fault” schemes, such as for automobile liability: to the extent that being at fault in an accident is essen­ tially fortuitous, it might be better to simply agree on no liability and buy firstparty insurance against losses instead. Today almost all legal systems recognise liability for both intentionally and negligently inflicted injury to the person and property. The difficult issue is that of whether to recognise some form of strict liability, or liability without fault. Despite suggestions to the contrary,20 there was no general practice of strict liability in common law, although in some areas, notably nuisance law, liability was quasi-strict.21 As a practical matter early law could not afford to conduct detailed factual inquiries in most cases as a negligence standard might require, hence a tendency to have either a rule of no liability or one of strict liability. As methods of gathering and presenting evidence improved, and as society became more productive and therefore better able to afford the resources necessary for fact-intensive inquiry, negligence rules became more common. The question of strict liability versus negligence is widely debated in the law and economics literature, generally premised on either a utilitarian standard or a KaldorHicks standard.22 The results are generally inconclusive, although there are some fac­ tors that point in one direction or another. Both rules provide similar and efficient incentives for care in many cases if we assume that courts accurately assess liability or err only randomly. Strict liability is favoured when a defendant’s activity levels are important in causing harm, and conversely negligence is favoured if a plaintiff’s con­ duct is an important variable. Although we concluded in Chapter 3 that a theory of justice as mutual advantage would not embrace utilitarianism generally, in many cases a strong conclusion that utilitarian considerations favoured one rule over another might be a good reason to adopt such a rule if the benefits and burdens of the rule were widely distributed, since a utilitarian rule in those circumstances might be in almost everyone’s ex ante interest. Thus the results of economic analysis should have significant weight. However, it is not the case that everyone’s ex ante interests are necessarily the same when it comes to torts. Some actors, especially businesses, are much more likely to be tortfeasors than tort victims, and others, especially consumers and employees, are far more likely to be victims. In such a case we cannot assume that just because a particular rule is in the best interest of society as a whole it is

19 20 21 22

Holmes 1963, p. 76.

Notably by Horwitz 1979.

Rabin 1981.

See, e.g., Shavell 1980.

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in the best interest of all or nearly all. In these circumstances the distributional consequences of a strict liability rule become more important. If one class of persons is far more likely to cause harm, and another class far more likely to suffer it, the latter group would be warranted in advocating a strict liability approach. After all, what entitles the former to impose costs for “free” on the latter? It is here that the approach advocated by George Fletcher23 in a seminal article comes to the fore. Although his argument is largely premised on a Rawlsian theory of fairness, it is easily recast in acceptable form as a theory of justice as mutual advan­ tage. His theory is that negligence is the appropriate standard for risks that are recip­ rocal; that is, where the risks I impose on you are roughly similar to those you impose on me. Where one party imposes risks that are significantly greater than the other, however, a strict liability scheme is more appropriate. There are, it is true, sometimes difficult issues in applying this distinction (in particular it is not always easy to determine who imposes risk on whom; in one sense all risk is reciprocal although this idea is implausible when taken to extremes).24 Nevertheless, there are clearly some cases where these considerations should lead to a strict liability standard rather than a negligence standard. In particular this would justify the practice in the United States and other jurisdictions of imposing strict liability where one party is engaged in an “ultrahazardous” activity such as blasting and transporting hazardous chemicals.25 The dividing line was well stated in a leading judgment by Baron Bramwell, in Bamford v Turnley,26 in connection with the tort of nuisance, but I think applicable throughout tort law: those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without submitting those who do them to an action … There is an obvious necessity for such a principle as I have mentioned. It is as much for the advantage of one owner as of another for the very nuisance the one complains of, as the result of the ordinary use of his neighbour’s land, he himself will create in the ordinary use of his own, and the reciprocal nuisances are of comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live …

23 Fletcher 1972. 24 This was the fundamental insight of Ronald Coase in Coase 1960. To use Coase’s example, when a railroad emits sparks that destroy crops growing alongside the railroad, it is misleading to say this is a cost of railroading, when it could also be viewed as a cost of farming. Neverthe­ less there are clear enough cases where common sense dictates that one party is the risk impo­ ser: if a piano falls out of my window and kills a passer-by, no one would say that this was a cost of walking as opposed to a cost of moving a piano. 25 American Law Institute 2009, s 20. 26 122 ER 27, 32–33 (Exchequer 1863).

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But he then went on to explain why this does not collapse into utilitarianism: The public consists of all the individuals of it, and a thing is only for the public benefit when it is productive of good to those individuals on the bal­ ance of loss and gain to all. So if all the loss and all the gain were borne and received by one individual, he on the whole would be the gainer. But whenever this is the case … the loss of the individuals who lose will bear compensation out of the gains of those who gain. It is for the public benefit there should be railways, but it would not be unless the gain of having the railway was sufficient to compensate the loss occasioned by the use of the land required for its site; and accordingly no one thinks it would be right to take an individual’s land without compensation to make a railway.27 The other compelling argument in favour of strict liability is that it economises on litigation costs, since parties do not need to litigate who was at fault. Of course it does not eliminate all factual disputes; in many cases causation may be contested, especially in product cases involving drugs and medical devices where the issues of causation are highly disputed. There are sound arguments in favour of either rules of strict liability or no liability, depending on whether parties are usually responsible or usually not responsible in similar cases, on the basis that rough justice is better than exact justice that is too costly.28 Indeed, in some cases social norms arise that achieve the same result—Robert Ellickson’s Order Without Law29 documents how parties who repeatedly interact tend to substi­ tute per se rules (for example, with respect to damage caused by cars colliding with straying cattle) for facts and circumstances tests. The issues also become complicated when we consider torts arising out of con­ sensual relationships, in particular product liability and employer’s liability. There is a modern tendency to view the imposition of risk in such situations as being done entirely by the business party (the producer or the employer). At least where the risk is a known one, this is not correct.30 In many cases involving known risks, the general case for no liability, or at most negligence liability, becomes far stronger. In the first two thirds of the twentieth century, a different rationale for strict liability became prominent, the idea that one party (the repeat player) was the superior risk bearer and should include the harm as a cost of doing business that would be passed on to consumers.31 This rationale has rightly declined in

27 Ibid. 28 See Epstein 1995, pp. 91–111, for an argument that substituting bright line rules for facts and circumstances tests is generally likely to be mutually beneficial ex ante in tort law. See also Epstein 1973. 29 Ellickson 1994. 30 See Polinsky and Shavell 2010, and the response by John Goldberg and Benjamin Zipursky, Goldberg and Zipursky 2010. 31 See Escola v Coca-Cola Bottling Co. of Fresno, 150 P.2d 136 (Cal. 1944) (Traynor, J. concurring).

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importance in recent years, as more people have come to see it as a paternalistic requirement to insure against harms that people might not voluntarily insure against.32 It also dramatically increases the costs that the tort system imposes on the economy, which is especially problematical given that only around half of those costs go to victims, with the remaining costs representing transaction costs that are essentially a waste. A theory of justice as mutual advantage would see tort law as a method of remedying harms that were wrongly imposed by one person on another, and would otherwise leave people to insure themselves. To the extent that people cannot afford insurance, this should be treated just like any other good that people want but cannot afford, and will be dealt with in the context of welfare provision generally. There are of course many other torts, and a book on legal theory cannot go into detail on all of them. For many torts I believe the case for a rule of no liability is quite strong, as the gain from shifting costs from one person to another does not outweigh the costs of doing so. In particular I am inclined to think this about defamation, pure economic loss and emotional injury, all areas where I believe tort law does more harm than good. But these conclusions are very controversial and I cannot pursue them here. I think all of these issues are sufficiently close, however, that societies could rea­ sonably differ on them while remaining consistent with an overall theory of justice as mutual benefit. I seriously doubt there is anyone who can legitimately complain that he is overall worse off because of the existence of tort liability than he would be if there were no such liability. Tort liability undoubtedly plays a role in reducing the number of torts that are committed, and therefore in promoting compliance with beneficial social norms, although by how much is controversial.33 The evi­ dence from the one jurisdiction that has abolished tort liability for personal injury —New Zealand—is decidedly mixed, and it substituted a scheme of compulsory insurance, not a general regime of no liability, for tort law.34 Certainly there is no substance to the suggestion sometimes made that tort law disfavours the poor.35 The one area in which the poor are required to have liability insurance is for automobile liability, and the suggestion that the poor should be allowed to drive uninsured will appeal to no one. Indeed, it seems likely that tort law, and indeed civil liability generally, is mildly redistributive in favour of the poor. Poor people are almost all judgment proof, and for that reason are virtually never sued unless they are insured. But if a rich person injures a poor person, a suit is very likely. Thus if a poor person injures Bill Gates he would never sue, while if Bill Gates injures a poor person, a suit seems virtually certain. In the long run we should expect the civil justice system to redistribute wealth at least somewhat from those with more money to

32 33 34 35

Priest 1987.

Dewees, Duff and Trebilcock 1997.

See generally Cane 2013.

See, e.g., Conaghan and Mansell 1998, Keren-Paz 2013.

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those with less.36 But there is nothing wrong with this redistribution; since the civil justice system is mutually beneficial and not aimed at redistributing wealth (except of course between wrongdoers and victims), it is not problematical.37 In general advocates for the poor want more tort law, not less. But a theory of justice as mutual advantage does not warrant a finding of injustice for every rule that could be imposed but has not been, even if, as seems unlikely, increased tort liability would benefit everyone. It seems clear that tort law at least is overall beneficial to the poor, and its existence could not warrant an argument for redistribution in favour of the poor.

Contracts Both Hobbes and Hume recognised that performing contracts was a crucial social norm that their theories had to justify, and both thought it clear that a norm requiring contractual performance followed almost immediately from a view of justice based on mutual benefit. Indeed, it is not an exaggeration to say that the rule requiring that agreements be kept is foundational for the rest of the theory, as most other mutually beneficial social norms arise from agreement. Modern contract theory is the scene of a great deal of debate over the extent to which freedom or efficiency is the foundation of contract.38 These theories each have interesting insights to offer, but I believe the search for a single theory that unites all of contract law is likely to be fruitless. What is obvious, though, is that a contract is absolutely vital to a working society, and that there­ fore however contract theory is spelled out in detail, the ability to enter into contracts needs no unified theory to justify it. The practical problem is stated easily enough. People need to be able to exchange their rights in goods and services. Market exchange necessarily makes both parties better off from their own perspective, otherwise they would not engage in it. While simultaneous exchanges of goods could perhaps be carried out without the backing of law, exchanges that are not simultaneous will not be

36 This might not be true if the poor lack access to civil justice to too great an extent. That is not because the poor have some right to have their legal rights protected at public expense, as I do not think there is any greater basis for such a right than there is for a right to be fed at public expense, which, as we saw in Chapter 4 and will see in Chapter 10, I do not think exists. The issue is different with respect to the right to a defence against criminal charges, where the state is itself putting a person at risk of loss of liberty. See Gideon v Wainwright, 372 U.S. 335 (1963). Most modern legal systems go to significant lengths nonetheless to provide the poor with access to civil justice, through methods such as legal aid, contingency fees, conditional fees and other devices, to such an extent that it is very unlikely that the civil justice system is on net harmful to the poor. I am aware of no attempt to assess this issue empirically. 37 See Hayek 2012, pp. 226–266 (side effects of justified norms do not create injustice); Nozick 1974, pp. 271–274 (same). 38 Key recent texts include Barnett 1986, Smith 2004, Fried 2015, Dagan and Heller 2017.

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made unless the party who performs first has reasonable assurance that the other party will perform when it is his turn. Hume’s example, where I need your help harvesting my crops now, while you need my help two weeks from now, serves nicely: you will be unlikely to help me if I am free to refuse to return the favour. Among small groups of people39 the fact that we are likely to interact in the future, and that people who breach agreements will suffer reputational losses that will make others unwilling to deal with them, may suffice, but with strangers, and where groups are large enough that people may be able to avoid the effects of bad reputation, this is unlikely to be enough. Being able to bind yourself for the future, including being able to consent to having the law enforce your agreement, is an obvious solution that has been adopted in some form in virtually all societies. Although at first glance the use of force to enforce contracts appears inconsistent with the Sovereignty Principle, since being able to do so is mutually beneficial for almost everyone40 it is easy to justify on the Reciprocal Sovereignty Principle. A key feature that makes this true is the fact that contractual obligation is voluntary—no one has an obliga­ tion unless he has agreed to it. Moreover, as long as the law takes seriously a key component of contractual obligation—intent to create legal relations—no one has a complaint if the law takes seriously his decision to bind himself legally. There are of course difficult issues at the boundaries, as there are with any social practice. Although the arguments for nearly complete freedom of contract with respect to commercial contracts are compelling,41 most legal systems set limits on consumer, employment and other contracts where one party is weaker and likely to enter into improvident contracts.42 This is especially likely with respect to boilerplate contracts and contracts of adhesion, which are not indi­ vidually negotiated and in which it is clear that many persons enter into them without knowingly consenting to their terms.43 There is room for dispute about how big a problem this is, and room to argue about whether allowing con­ sumers and other allegedly weak parties to escape from contracts genuinely benefits weaker parties.44 It is entirely possible that carving out specific types of contracts or contractual terms that should not be binding can be made consist­ ently with an overall view of contract as based on mutual benefit.45

39 Lisa Bernstein’s study of New York diamond merchants, who are almost all members of the same religious groups and use reputational sanctions rather than sue, is the most prominent example in recent history. See Bernstein 1992. See also discussions of the Maghrebi traders in Greif 2006. 40 The major exceptions, minors and the insane, are normally not bound by their contracts. 41 See Morgan 2013. 42 See Bar-Gill 2013. 43 See Radin 2012. 44 See, e.g., Epstein 1975, Bebchuk and Posner 2006. 45 I would say in general, though, that rules that render some provisions not binding should almost always be based on a finding that consent to such terms is unlikely to be genuine,

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The same is true of the major defences to contractual obligation. It seems clear that in most commercial contexts a rule prohibiting fraud and duress would be mutually beneficial, as would a rule excusing performance where those things taint the contract. The exact scope of these defences of course is some­ thing on which people can reasonably differ, and in which efficiency consider­ ations should play a key role. And there are some types of contracts for which these defences would not be available. It would hardly do, for example, to allow a party to get out of a peace treaty that ends a war because the war constituted duress—allowing the defence would make it impossible to conclude peace treaties.46 For similar reasons, an agreement to settle a lawsuit cannot be avoided except in narrow circumstances on the ground that the suit constituted duress. The attacks most commonly made against contract law these days involve two issues: exploitation and commodification. As to exploitation, there is no real issue provided we have sound rules against duress, fraud and exploitation of cer­ tain kinds of mistake, all of which the common law does. Even where it is true that parties are of unequal bargaining power, so long as both parties have the right to say no, their contracts will benefit both parties. Although unequal bar­ gaining power may permit one party to obtain a larger share of the bargaining surplus than the other, there is no right or wrong way in which to divide the benefits of mutually beneficial bargains. As long as both parties benefit, there is no basis for a complaint if one benefits more than the other. Although there are reasons to believe, based on bargaining theory, that parties who have equal bar­ gaining power and skill will arrive at something close to an equal split of the benefits of many bargains, there is no reason why anyone has to behave as if they had equal bargaining power with someone if they in fact have more. Indeed, the ability to drive better bargains is generally a legitimate reward for engaging in the actions that lead to one having that power, in the absence of specific conduct that is condemned because it is detrimental to society generally (such as deception). Objections to contracts based on inequality of bargaining power are thus completely meritless. In any event, the extent of inequality of bargaining power is greatly exagger­ ated in most critiques of market exchange. For example, even very large

rather than simply on the basis that the provisions were entered into based on unequal bar­ gaining power or anything similar. There can be no basis in a theory of justice as mutual advantage for the law adjusting people’s contractual rights based on dislike of the substance of what they have agreed to. See Comment 1 to Uniform Commercial Code s. 2–302: “The principle is one of the prevention of oppression and unfair surprise … and not of disturbance of allocation of risks because of superior bargaining power.” The exceptions would be for situations in which the agreements shock the conscience such that the rest of us need to be able to not taint ourselves by enforcing it. See Shiffrin 2000. This justifies some of the actions of Portia with respect to the “pound of flesh” contract in Shakespeare’s The Merchant of Venice, but by no means all of them. 46 Grotius 2012.

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businesses have to compete for workers, and end up paying far more than min­ imum wages to most of their employees. It is only when there is monopoly (or in the case of employers, monopsony) power that there is any real problem, and those problems are best handled by competition law, as discussed in the next chapter.47 The commodification issue has received a lot of currency recently, with several theorists arguing there are some things that should not be sold at all, such as sex, surrogate parenting, blood and body parts.48 These arguments are all based on moral realism, and involve at bottom some people who prefer that some things be valued in ways that preclude their being exchanged imposing those values on others who do not share their preferences. These arguments are there­ fore nonstarters once we realise that all values are subjective, and no one is war­ ranted in imposing their own values on others. But even within moral realism, these arguments have recently been thoroughly discredited by Jason Brennan in his Markets Without Limits.49 Brennan demonstrates brilliantly that you should be able to do anything for money that you can do for free. Thus while murder for hire should be illegal, that is because murder should be illegal full stop. But just as you can consent to sex, for example, for free, you should be able to do so for money. I believe Brennan’s excellent book should put to rest the commodification argument for good, even for moral realists who believe there are true value judgements, as I of course do not. In short, although there is room to disagree about the exact scope of particu­ lar defences or doctrines, there is little doubt that contract law as a whole is mutually beneficial for virtually everyone, and easy to justify on that basis. We do not need a unified complete theory of contract law to justify enforcing contracts.

Criminal law There are a great many theories of criminal law, though they tend to break down into two main camps: deterrence theories and retribution theories. The literature on these theories is very large and I will not attempt to summarise it here. Both approaches suffer from serious deficiencies which are well brought out by their opposing numbers. Fortunately, in this area there is an excellent contractarian analysis already in place: that of Claire Finkelstein.50 This approach combines aspects of both deterrence and retribution theory while avoiding the problems of both. The

47 48 49 50

On these issues see generally Epstein 1995, pp. 82–90.

See, e.g., Anderson 1995, Radin 2001, Satz 2012, Sandel 2013.

Brennan 2015.

Finkelstein 2002. See also Skogh and Stuart 1982 (arguing that a social contract conferring

property rights and a criminal justice system that punishes violations of those rights is in the interest of all agents).

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core idea is simple—we all gain from a practice of punishing those who commit serious offences against persons and their property, because we gain more from the fact that others are prevented or deterred from those crimes than we lose by being unable to perform them ourselves. As long as the law does not punish us for things we cannot avoid doing, and as long as the acts it punishes are them­ selves ones we should agree not to perform, there is no difficulty justifying that punishment.51 This theory does rely on the proposition that punishment deters crime, and some have questioned this assumption. I believe the literature strongly supports the view that punishment does indeed deter crime.52 But part of the difficulty with this issue is that people analysing deterrence tend to focus too much on whether criminal law deters criminals, a group generally characterised by low behavioural control and hyperbolic discounting in ways that make their behav­ iour less rational and subject to deterrence than others. But this is not the right way to think about it. We should instead ask ourselves whether people who are now law abiding for the most part would continue to be so if crime were no longer punished. This type of deterrence is known as general deterrence, to con­ trast it with specific deterrence of the criminal himself. I do not think any ser­ ious thinker believes that antisocial acts would not grow dramatically in number if we stopped punishing crime. It is hard to know for sure because no society has been insane enough to try abolishing criminal law. But analysis of the liber­ alisation of punishment and criminal justice that took place in the 1960s and 70s in the United States strongly suggests that doing so would be a very bad idea. Indeed, the research discussed in Chapter 3, notes 28 and 31 above strongly suggests that not only is punishment justifiable—it is actually crucial to the sur­ vival of society itself. The literature strongly suggests that punishment is abso­ lutely critical to the maintenance and observance of social norms generally. People will neither internalise nor follow social norms that are not in their immediate self-interest if compliance is not reinforced by punishment. Of course, for many norms the punishment will consist of criticism, gossip, refusal to assist or do business with people, and similar non-criminal punishment. Nonetheless, we should not lose sight of the importance of punishment to the maintenance of all socially beneficial behaviour. Criminal punishment seems problematical because it involves hard treatment— taking away money (fines), imprisonment and even death. The Reciprocal Sover­ eignty Principle would normally prohibit the infliction of these sanctions on per­ sons, as would most other plausible approaches to political thought. Why do we make an exception here? The key idea is simple: a criminal forfeits the protection of

51 There are similarities between this view and that of Alan Brudner (2012), but also some dif­ ferences. Space does not permit discussion of the differences. 52 See Becker 1969, Wilson and Herrnstein 1998, Levitt and Miles 2006. For good overviews of the research in this area, see Draca and Machin 2015, Chalfin and McCrary 2017.

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the Reciprocal Sovereignty Principle because of his own violation of that Principle. Even the right to life is a reciprocal right—I agree not to kill you in exchange for your agreeing not to kill me. A reciprocity-based account like mine must reject any absolute right not to be punished, as a person who does not respect the rights of others has no claim to have his own rights respected. We can say, if you please, that the criminal has forfeited his rights by committing his crime, but in some ways this is misleading. It would be better to say that his rights are conditional to begin with on his respecting the rights of others. A person who violates the rights of others has no right to claim those rights when we punish him. Although people would agree on limits to this argument (it would not justify capital punishment for theft, for example, as was actually practised in eighteenth-century England), it can readily jus­ tify proportionate punishment.53 My theory could thus not endorse a categorical prohibition on capital punish­ ment, at least for murder. That does not mean we are required to execute mur­ derers, as Kant believed. We can properly consider whether capital punishment adds sufficient deterrence to the otherwise available punishments such as life imprisonment, on which there is a large and somewhat inconclusive literature. We can also consider whether the risks of error in our criminal justice system, errors that become irrevocable if we execute people, counsel against capital pun­ ishment. We can also conclude we just don’t like it. A reciprocity-based theory of punishment does not require us to punish people as much as we could justify based on reciprocity considerations alone. We can be merciful, or even decide to save the high costs of imprisonment and use other methods. We don’t have to eat cannibals as punishment for cannibalism, even if we could do so if we wanted to—they could not complain if we did, but we can decide we would rather not. A contractarian approach also explains why at least negative retributivism functions as a limit on the right to punish. Negative retributivism denies that the justification for punishment is retribution, but affirms that only the guilty can be punished. The contractarian affirms that those who do not commit crimes retain their right not to be punished, even for utilitarian reasons. It is those who commit crimes who cannot consistently complain when they are punished. This approach also takes better account of the third justification for punish­ ment: incapacitation. While people are in prison they are much less able to commit crimes, at least against those who are not also prisoners, and this benefit can weigh alongside the benefit of deterrence. This is especially true given the

53 This does not imply strict application of the lex talionis as a limit on punishment. Penalties for crime that are higher than the harm caused by the crime are not difficult to justify, especially when the probability of detection is low. But it does suggest that some limits would be agreed. This is especially important given that no system of criminal justice can be 100 per cent accurate. The risk of erroneous convictions is a compelling reason against overly draconian punishment that underlies our existing social norms against such punishments.

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fact that many criminals are young men who age out of a life of crime, and imprisoning them during their peak years of criminality may provide significant benefits in the form of overall crime reduction. A contractarian theory would also allow us to take advantage of any rehabili­ tation that the criminal justice system manages to provide. I am pretty pessimis­ tic about the rehabilitative capacity of the criminal justice system; the evidence suggests that its criminogenic tendencies (essentially prison serving as a school for criminals) may be at least as great as its rehabilitative tendencies.54 But if there are such benefits they go into the benefit column of the cost-benefit ana­ lysis of criminal law for each of us. But Finkelstein’s argument really only applies to core criminality—things like murder, rape, assault and theft. It can plausibly be extended to some core “abstract endangerment” offences such as driving while intoxicated that endan­ ger people even if no harm results, and also to inchoate crimes such as conspir­ acy and attempts.55 But it cannot plausibly be extended to justify punishment of victimless crimes like prostitution, drug dealing and possession, and similar offences.56 Indeed, it is crystal clear that these prohibitions are not motivated by a desire to achieve a mutually beneficial restraint on acts that harm or threaten harm, but rather on a desire by some to outlaw ways of life of which they disap­ prove. Far from approving of this, a theory of justice based on mutual advantage must resolutely oppose it. I submit that a mutual advantage theory of justice should lead to a very narrow criminal law, one that covers effectively only assault and theft and a narrow class of other acts that create dangers far in excess of their benefits.57 In effect it requires a cost-benefit analysis to justify making something a crime— it must be the case that the benefits in terms of reduced harms caused by the reduction in commission of the acts in question outweigh the loss of the free­ dom caused by the prohibition, plus the other costs of criminalisation, including wrongful conviction and punishment of the innocent, given that errors in decid­ ing guilt and innocence are unavoidable, along with the enormous costs of run­ ning the courts and imprisonment system (including the imposition on innocent citizens’ time from serving as jurors and witnesses). If the extent to which crim­ inal justice makes errors is fully appreciated, and all the costs are taken account of, only a very small range of criminal prohibitions would pass the cost-benefit case for virtually everyone. And remember, under my approach we cannot simply add up costs and benefits across persons—the criminal justice system must be to the ex ante advantage of virtually everyone to be permissible. Once

54 55 56 57

See, e.g., Cullen and Jonson 2011.

See generally Posner 1985.

See Chapter 4, note 26.

Hence the title of Matt Kibbe’s book—Don’t Hurt People and Don’t Take Their Stuff (Kibbe

2015)—accurately sums up the limits of criminalisation under this theory, with the proviso of course that we can criminalise acts likely to hurt people as well as those that actually do so.

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we get beyond murder, assault, theft, fraud and other central cases of conduct with costs far in excess of benefits, such a requirement cannot possibly be satisfied. In particular, it is very clear that the war on drugs has not only failed to rid us of drugs, it has imposed untold misery on many people, including not just drug criminals themselves but also their families and other dependants deprived of support. It has undoubtedly greatly increased the rate of murders and other crimes and resulted in the deaths of thousands of innocent people as well as of drug traffickers.58 It is also a major driver of the increased militarisation of the police in the United States, which has had tragic results in all too many cases and has fuelled widespread resentment of the police in minority communities.59 The United States’ drug war has made Mexico almost a basket case of crime in many areas, inflicting undeserved suffering on its people and increasing their tendency to immigrate to the United States illegally as well as legally. This harm has fallen disproportionally on minorities and the poor. Indeed, while I do not doubt that the latter groups benefit from the laws against murder, assault, theft and other core crimes (indeed they may benefit more than the rich, who can afford to live in gated communities and otherwise escape from many crimes that the poor cannot escape), when one adds in the unjustifiable harm that the war on drugs inflicts, it may well be that there are many people who would be better off if there were no criminal law at all than with the absurdly overbroad criminal law we now have. The Harm/Sovereignty Principle I argued for in Chapter 4 is not limited to the criminal law, as some have mistakenly assumed. It applies to all law, and indeed to social norms generally—we should reject social norms that are not mutually beneficial and refuse to enforce them even with sanctions such as dis­ approval and criticism. But the sanctions of the criminal law, which are the severest known to the law in general, are especially improper for conduct that neither harms others nor threatens harm. The extension of the criminal law beyond the core crimes of murder, assault, theft and similar narrowly focused offences is indefensible and must stop. No one has any obligation to obey such laws or to participate in a system that punishes them. In addition, a theory of justice as mutual advantage must give some weight to the procedures by which the criminal law is enforced.60 This includes both the rights that are provided at trial, such as the right to confront witnesses61 and rights against compelled self-incrimination and to a trial by jury, as well as pre-trial rights, such as the right against unreasonable search and seizure and unwarranted arrest.

58 See Gray 2001, Miron 2004, Benavie 2008, Hari 2015, Loewenstein 2019.

59 See Balko 2013.

60 The same is also true of the civil law, but the issue is of special importance with respect to the

criminal law both because of the seriousness of the sanctions involved and because the crim­ inal law is primarily enforced by the state, while the civil law is primarily enforced by private parties. 61 See O’Brian 2005.

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The criminal law can be oppressive to people even if they are never convicted of a crime, such as the phenomenon of being stopped or even arrested for “driving while black,” which can make the police feel like a foreign occupying force to some groups.62 Similarly, the extensive use of civil forfeiture against persons who are never charged, much less convicted, of any offence raises substantial issues of whether the criminal justice system, as actually applied, is in the mutual interest of all groups, even if the acts that are criminalised are ones we all have a strong interest in deterring. We thus cannot conclude, unlike with respect to tort and contract, that crim­ inal law as it is does not harm the poor, especially minorities.63 Some might argue that this fact forms the basis for a claim to compensation that could underwrite some form of redistribution to those harmed by the law. I would suggest, though, as I did in previous chapters, that this is the wrong remedy. We should repeal these laws, not keep them and compensate the losers. It is worth noting, however, that these laws are all statutory, imposed by a legislature elected democratically and not the result of common law. The common law of crime is largely limited to core criminality as defined above. The existence of these laws therefore does not undermine the contention of theorists such as Hayek and Leoni (among which I number myself, as will appear in the next chapter) that common law is in general far superior to statutory law, and indeed that democracy does not confer any real legitimacy on public laws at all except in narrowly defined circumstances. It is of course true that the areas of the law mostly governed by the common law have occasionally been improved by statute. Perhaps the best example of this is tort law, which went badly wrong in the way it dealt with death. For example, it did not allow recovery for killing a person at all, on the theory that since the victim was dead there was no one left to sue.64 It also held that tort claims died with the victim, so a matured tort claim that some­ one had when he died died with him, unlike his contract claims which sur­ vived. Finally, it also held that if the tortfeasor died, tort claims died with him and could not be pursued against his estate, again contrary to the case with contract claims. These rules were all reversed by statute in England and all other common-law jurisdictions.65 These statutes undoubtedly improved the

62 See, e.g., Alexander 2012, Butler 2017.

63 For an argument suggesting that this could be the case, without asserting that it is, see

Reiman and Leighton 2016. There is also a significant literature suggesting that the rich are more likely to have their harmful acts treated as torts instead of crimes, and less likely to be prosecuted even if their acts are criminal. See, e.g., Hawkins 2003, Garrett 2014. This argu­ ment raises difficult issues that cannot be addressed here, but to the extent these complaints are valid they would only add to the problems that the criminal law creates for the poor. 64 Baker v Bolton, 170 ER 1033 (1808). 65 These were in England Lord Campbell’s Act, now the Fatal Accidents Act 1976, which allowed recovery by certain relatives for wrongful death, and the Law Reform (Miscellaneous

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law. Other examples could be found, although in many cases the improvement is more debatable.66 While in the above case legislation improved the law, my own sense is that the common law would have eventually arrived at the same rules. The treatment of death in tort was anomalous when compared to contract, and its treatment in contract clearly made more sense. There are a number of cases where contract and tort overlap, and as cases arose where this was true the anomaly would have become even more obvious. While of course no one can be certain of the answer to any counterfactual question, it is hard to believe the common-law rules of tort dealing with death could have survived for long even without legis­ lation. This is especially likely given the tendency of some common-law courts to decline to change the law because of the fact that the change can be made legislatively. I thus do not believe the relatively few cases in which the common law was improved by statute undermine the wisdom of a general practice of having legislatures leave the common law alone, if that can be achieved. But to see why we should be much more wary of legislative changes to the common law than we are, we need to examine statutory laws themselves. This we do in the next chapter. The results are not pretty.

Provisions) Act 1934, which provided for survival of claims by and against deceased persons, with a few exceptions. 66 In particular, it is at least debatable whether the shift from contributory negligence as an abso­ lute bar to a claim to a system of pro-rata reduction of the recovery, referred to in the United States as comparative negligence, was an improvement. There are strong arguments either way. See, e.g., Bar-Gill and Ben-Shahar 2003. Moreover, the change was made by courts in many common-law jurisdictions, and probably would have been in others had legislation not been available as an alternative.

9

Democracy and statutory law

Democracy My view of democracy in the past has been essentially that of Winston Church­ ill: it is the worst form of government other than all of the other approaches that have been tried so far. The best argument in favour of democracy is in my view that of Karl Popper: it is essential that the people are able to sack their rulers, especially their bad ones, without bloodshed.1 Apart from this, democ­ racy has little to recommend it. As we will see, in the field of law in particular, much legislative intervention makes things worse, and certainly cannot be justi­ fied as mutually beneficial. Instead, it is in the realm of rent-seeking: of people seeking to live at the expense of others. A great many political theorists have much more positive views of democracy. For example, Philip Pettit, in On the People’s Terms2 and throughout his career, extolls democratic rule as the main way of protecting people’s freedom con­ ceived as non-domination. Similarly, Niko Kolodny in two articles entitled “Rule Over None”3 argues that democracy is justified solely on the basis that it achieves a relationship of social equality; that is, one where I don’t rule over you and you don’t rule over me. Both of these authors place what is in my view inordinate and unreasonable weight on the status of being social equals. There can be little doubt that democracy at least theoretically does this: the fact that my views and yours count the same in an ultimate decision does say something about our relative status. But I frankly do not see that as very important. It is much more important to me to get the results I want. If by living in a monarchy I have a lower status than the monarch, but the monarch rules in the way I prefer, I prefer monarchy to a democracy in which I get a vote but am consistently outvoted. My status equality with my fellow citizens seems to me pretty irrelevant in comparison with actually getting good government.

1 See Popper 1962.

2 Pettit 2012.

3 Kolodny 2014a, 2014b.

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Much more important, for me and I think most people, is that we get good decisions from our government. And here recent experience suggests democracy performs quite poorly. This is not just based on the recent election of Donald Trump or the decision of British voters to leave the European Union. The voters in most Western democracies are remarkably ignorant on matters of policy, especially where science and economics are concerned.4 Furthermore, this ignorance is rational: the infinitesimal likelihood that my vote will make any difference coupled with the high costs of getting good information on many political issues make it quite rational for most voters to be ignorant and to vote on unreasonable and largely emotional grounds. Fundamentally it comes down to a major difference between market decision-making and voting: when I make a poor decision in the market, I largely bear the consequences, while when I make a bad decision as a voter, everyone else bears the consequences. In his book Democratic Authority, David Estlund defends democracy against epistocracy, or rule by experts.5 His central argument is: “you may be an expert, but who made you boss?” Stated this way, his argument is hard to quarrel with; few of us would agree to hand over our lives and important decisions to experts even if they will make better decisions than we will. We want to run our own lives. But that is the problem: making decisions democratically does not let us run our own lives either. In fact, it is worse than epistocracy: we give up the right to run our own lives, and give it instead to people who will do a worse job than we will. I am of course aware of the Condorcet Jury Theorem and the general wisdom of crowds literature, which suggests that on at least some questions groups do much better at making decisions than individuals.6 And indeed there are some issues on which groups do make better decisions than individuals. But on policy issues we have no good reasons to trust the mob. Indeed, the well-known phenomenon of “groupthink” gives us reasons to question group decisions. And finally, there is less risk in making decisions separately rather than together, as there is a better chance with separate decisions that at least some of us will get it right, and the market will reveal who did and lead to us imitating them. When we all decide together, we may never know what would have happened if we had done differently. Inviting us to choose between democracy and epistocracy is a false dilemma. If forced to choose I would choose epistocracy, largely for the reasons Brennan et al. give. But the real choice is not between democracy and epistocracy, but between democracy and freedom. It is not between rule by experts and rule by our fellow citizens, it is between self-rule and rule by other people. And that choice is a no-brainer: self-rule wins hands down.

4 There are a number of good treatments of this issue recently. Four of the best are Caplan 2008, Achen and Bartels 2016, Brennan 2016, Somin 2016. Although these authors differ widely in their ultimate prescriptions, all are effective antidotes to any naïve confidence in democratic decision-making. 5 Estlund 2009. I recommend Brennan 2016 as a refutation of Estlund. 6 See Surowiecki 2005.

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Consider a somewhat fanciful example. There are one hundred people living on a desert island with wonderful beaches. There are forty people who prefer to swim and sunbathe nude (call these people the “Nudes”). The other sixty people prefer to swim and bathe with bathing suits (call them the “Prudes”). Let us suppose that neither is simply willing to let the others do as they wish on the beach: the Prudes do not want to have to see the Nudes, and the Nudes are not willing to cover up to avoid offending the Prudes. The democratic approach to this problem is to vote. Presumably the Prudes win sixty to forty, and everyone covers up. But I submit that this is the wrong result. The right result is that 40 percent of the beach is Nude beach, and 60 percent is Prude beach. The Nudes have no reason to accept the verdict of the majority as to how they will live their lives when there is a possible alternative that permits everyone to have their way.7 The market normally gives us the right result in cases like this, while voting gives the wrong result, at least for those in the minority. Assuming property ownership is widely dispersed, as I suggested it must be for land and other natural resources in Chapter 7, we should expect ownership of property to mirror the distribution of preferences (here 60/40). Even if the property is not distributed proportionally, the owners would have incentives to allow persons with different preferences to use their beaches for a price. Democracy gives us one-size-fits-all solutions, while the market gives everyone what they want (provided of course that they pay the costs their choices inflict on others). A second major problem with democratic decision-making is that it allows people to impose costs on their fellow citizens by forcing them to pay for gov­ ernment goods and services that they do not want but that manage to obtain majority approval, sometimes by a process of log-rolling (you vote for my pro­ ject in exchange for me voting for yours). Consider the following example in Table 9.1.8 This project generates $50 in benefits and costs $60, and therefore clearly should not be carried out. Yet democracy will approve it if Plan A is in effect, since its benefits exceed its costs for three voters, who displace its costs onto the other two. This would not be the case if we imposed taxes based on the benefit of the project to each voter, but this is an extraordinarily difficult exercise to carry out in practice, since the voters have an incentive to conceal or even falsify their valuations. It is relatively easy to come up with examples of multiple

7 I will stress again that by using this example I am not invoking the discredited approach known as Reflective Equilibrium, which I rejected in Chapter 2. I do not think this hypothetical example gives us access to some moral reality independent of our preferences. I use this desert island example, a type ubiquitous in the literature, to illustrate the issues while taking out irrelevant and disputed facts that might distract us from clear thinking. This feature of standard philosophical analysis is unobjectionable; it is the idea that our reaction to such cases gives us insights into a mind-independent realm of moral truth that I find ludicrous. 8 This example comes from Gwartney, Stroup and Lee 2010. Their entire discussion of this issue is well worth reading.

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Table 9.1 Costs and benefits under differing tax plans Voter

Benefits Received

Tax Plan A

Tax Plan B

Adams Brown Green Jones Smith Total

$15 $15 $15 $3 $2 $50

$12 $12 $12 $12 $12 $60

$18 $18 $18 $3.60 $2.40 $60

projects where everyone is worse off as a result of approving different projects by majority vote.9 The above example illustrates the problem with the promiscuous invocation of the notion of “public goods” in economic theory. In the above example, the project is a public good for three of the five individuals if one method of fund­ ing is chosen, but not for the other two. Once we realise that values are subject­ ive and preferences differ markedly, we simply cannot speak any longer about something being a public good simpliciter; it is a public good for you and not for me, or vice-versa. It is a rare good indeed whose benefits outweigh its costs for everyone; indeed, there may be nothing that fits that description. Even national defence, the prototypical public good, may not be a good for a person who would actually prefer to be conquered by his country’s enemies, for example a Nazi sympathiser in England during World War II. Although I do not suggest that the rest of us must accommodate this Nazi sympathiser, we also cannot blithely assume that any good people are forced to buy is a universal benefit. Only market transactions, which people can decline to enter into if they are not mutually beneficial, guarantee that everyone benefits. Farm subsidies and similar restrictions are another example of the dysfunction­ ality of democracy. Restrictive quotas on sugar imports into the United States have resulted in sugar prices there that are more than double the world market price, thereby enriching growers of sugar and associated agribusinesses at the expense of the consumer. Moreover, the subsidies are highly inefficient as the amount lost by consumers is many times the gain to the producers: it would be better to just give them money, but consumers might notice a direct subsidy while they do not realise how the sugar they buy is far more expensive than it should be.10 The European Union Common Agricultural Policy has similar effects; it robs EU consumers and impoverishes developing country producers to enrich EU farmers, but is untouchable because of the political clout of

9 See the example in Gaus 2011, pp. 542–545. His example is based on Buchanan and Tullock 1962, Chapter 10. 10 See Gwartney, Stroup and Lee 2010, pp. 90–91.

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French farmers.11 Another egregious example is the steel quotas imposed by George W. Bush in the United States in 2002 in order allegedly to protect the steel industry and save steelworker jobs. These cost well over $750,000 per job saved, far more than the benefits to the workers involved.12 Government regulation of the economy is perhaps the most important down­ side of rampant democracy. These costs are a huge drain on the economy—by one estimate they total over $1.75 trillion of the US economy, or 13 percent of national income. It is highly doubtful that these regulations generate significant benefits to offset their costs: their main result is redistributive, in many cases upward redistribution rather than downward. Moreover, these costs fall very heavily on small business, amounting to over $8,000 per employee.13 A more recent study by the Mercatus Center of George Mason University estimated much higher regulatory costs, concluding that but for federal regulations the economy would be 25 percent larger than it is.14 The costs make it difficult for small businesses to compete with large ones, who can spread regulatory compli­ ance costs, which tend to be fixed costs over a larger volume of business. More­ over, the non-monetary costs, in the form of red tape, inconvenience and bureaucratic power plays, are enormous.15 Democracy is at best the right decision procedure when we definitely have to make one choice for everyone. In my example, if for some reason we could not allow the Nudes and Prudes to have their own beaches, but had no option but to have the same rule for all beaches, then perhaps the Prudes should win, since letting them do so means that fewer people fail to get what they want. But most of the time we don’t have to impose the views of the majority on the minority. We can instead have freedom, under which for the most part we each get what we want. Of course that will not work if what you want is to control how other people live their lives: if, for example, you not only want Prude beaches for yourself, but want to make sure Nudes also cannot sunbathe nude. But this desire to control others is a desire we must reject as illegitimate if we are ever to have any hope of having a free society. Amartya Sen famously showed that if we count desires as to how other people live their lives, we cannot have both a liberal society and a society that achieves Pareto improvements.16 We can and must avoid this result by ruling out allowing preferences for how other people live their lives to influence policy, and instead adopting the Live and Let Live prin­ ciple. Limiting the ability of democratic majorities to alter the rules of the common law is the best way to achieve this.

11 12 13 14 15 16

See Norberg 2003.

See Miller, Benjamin and North 2017, pp. 198–202.

Crain and Crain 2011.

Coffee, McLaughlin and Paretto 2016.

See Devlin 2014, pp. 244–246, Ellison 2018.

See Sen 1970.

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Advocates of democracy seem to assume that the only alternative to majority rule is minority rule. But this is not true. The main alternative to majority rule is no rule. I do whatever I want, and you do whatever you want, but in both cases subject to the mutually beneficial social norms that have evolved in our society to prevent us from interfering with each other too much. I suggested in the previous chapter that the rules of the common law do a pretty good job of enabling us to get along peacefully and cooperatively for mutual benefit, with­ out imposing our way of life on others. We should ask whether allowing people to modify these rules by voting is likely to improve things, or instead to lead to some of us imposing our values on others. In the remainder of this chapter, I will suggest it is the latter. A pattern similar to what I suggest has been noted by other commentators. For example, Richard Posner concludes that the common law is in the main effi­ cient, while statutory law in the United States, by and large, is not: While many of the legal rules discussed in previous chapters seem designed to promote efficiency, many others, such as minimum wage and maximum hours laws, the National Labor Relations Act, rate regulation … much con­ sumer protection legislation, and the fast eroding restrictions on competi­ tion in banking—to name just a few—do not. The list of inefficient rules discussed in this book could be extended enormously, to cover much of the nation’s statute law and administrative regulation. Although the correlation is far from perfect, judge-made rules tend to be efficiency promoting while those made by legislatures, other than those rules that codify common law principles … tend to be efficiency-reducing.17 In his First Inaugural Address, Thomas Jefferson summarised the proper role of government this way: A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pur­ suits of industry and improvements, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.18 Wise words indeed, but we have not followed them, to our great cost. Even if we restrict, as I contend we should, the legislature’s right to modify the common law or otherwise impose duties on private individuals, that does

17 Posner 2011, pp. 713–714. He concludes this is because statutes are largely the domain of rent-seeking by interest groups, coupled with voter ignorance, a view that I share. Ibid., pp. 716–722, 731–736. 18 Thomas Jefferson, First Inaugural Address, available at avalon.law.yale.edu/19th_century/ jefinau1.asp (accessed 5 April 2019).

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not mean that it, or government, has no role at all. As Hayek noted, govern­ ment itself acts, in whatever roles it takes on, and someone has to direct how it carries out whatever functions it has. For example, even if we have a government that does nothing other than defend the country, it still must decide how to do that, and raise and spend funds to enable it to do so. The legislature clearly has a role to play in that—in most modern democracies, the “power of the purse” is a central legislative function. If there is a government at all, there will need to be some form of public law to decide how it is run. Keep­ ing the government’s hands off private law still leaves it with that public role, while leaving private individuals free from its direct control. That is a goal well worth achieving.

Corporations The Reciprocal Sovereignty Principle is applicable to persons. Nothing I said in Chapter 4, where I argued for the Sovereignty Principle, or Chapter 6, where I argued for the Principle of Cooperation, in any way justifies the idea that cor­ porations as such have the sort of right to live their own life in their own way that underlies our reciprocal obligations to respect the sovereignty of other people over their lives. Corporations are artificial persons, created by govern­ ments as a result of statutory enactments that enable their creation, confer on them legal personhood and, perhaps most importantly, limit the liability of their shareholders for their obligations.19 As the creature of government, they are nat­ urally subject to government regulation and limitation in a way that natural per­ sons are not, as has repeatedly been recognised by courts and commentators.20 There is a debate worth having over whether governments should create cor­ porations, and especially over whether they should endow their shareholders with limited liability. However, all existing states do allow such corporations and limit their liability, and while I cannot prove it, I am persuaded that they are wise to do so. It is highly unlikely that the amounts of capital needed to fund modern businesses could be raised without limited liability, and it is clear beyond serious dispute that the overall effects of the industrialisation and related developments of the last two hundred and fifty years have been the greatest thing that has ever happened to the human race. Limited liability undoubtedly played a major role in enabling that process. I will therefore not question that governments did the right thing by creating corporations and providing at least some form of limited liability.21

19 Much of this could of course be created contractually, but some aspects of company law could not be. In particular, the fact that shareholders’ creditors cannot claim against corpor­ ate property, but rather only against their stock, is something that could only be done by law. See Hansmann and Kraakman 2000. 20 Ibid. 21 See generally Bainbridge and Henderson 2018. That is not to say that there cannot be serious arguments for greater restrictions on limited liability than exist at present. To give only two

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Though it is easy to justify the creation of corporations and limited liability, that is not to say that they are without downsides. Enabling large accumulations of capital corporate law enables the existence of large organisations that can and do wield a great deal of power, both in the marketplace and in the political sphere. This generates difficult trade-offs between the benefits and harms of size on which reasonable people can differ. Clearly there are many businesses in which there are significant economies of scale and which large businesses can serve far more efficiently than smaller ones. But large corporations carry the danger of monopoly power, a danger that many on the left exaggerate but many on the right pay too little attention to. I cannot hope to contribute to these debates in this book, beyond offering a few observations on how they should be addressed. It seems clear that an approach based on mutual advantage should adopt essentially a utilitarian approach to company law issues, at least where the bene­ fits and burdens of the law are widely distributed. To the extent that corpor­ ations have rights, and they should, those rights can only have a utilitarian justification. We should give corporations rights because the granting and trad­ ing of rights in the market generates large gains for everyone. As Hayek recog­ nised, it is critical to the functioning of markets that they are allowed to reward success and punish failure without regard to whether this success or failure is deserved in any moral sense: it is only by letting the market reward undeserved success and punish undeserved failure that the market is able to fulfil its function of directing resources to their highest and best uses. At the same time, an approach based on mutual advantage allows us to limit the actions of corporations where their size creates dangers, as these dangers are themselves the result to a large extent of the limited liability that enables them. Competition laws are therefore not hard to justify: it is elementary that market power creates “deadweight” losses—that is, losses to some parties that are not offset by gains to others—and that preventing such losses is likely to be there­ fore at least Kaldor-Hicks efficient. The same is true with respect to price-fixing and other activities restricted by competition law. That is not to say all such laws are justified: I am persuaded by many critiques that economists and others have made of some aspects of competition law that suggest those laws have

examples, there are serious arguments for restricting limited liability to contractual obligations while keeping shareholder liability for torts. See Hansmann and Kraakman 1991. Similarly, there are strong arguments for restricting the limited liability of parents for some obligations of subsidiaries in corporate groups, especially if the confusing proliferation of subsidiaries and “special purpose vehicles” makes it difficult to know with whom you are contracting. Finally, there is evidence that some preferential treatment of certain counterparties of derivatives in bankruptcy contributed to the global financial crisis in 2008. See, e.g., Pistor 2019. While I would not endorse many of the claims Pistor makes in this book, to the extent that law does provide unjustified privileges for capital, there is obviously room in a theory of justice as mutual advantage for legal remedies for such problems. I do not intend to take sides in these debates here.

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been misused to protect competitors against competition rather than to protect competition itself, and have therefore been themselves the source of the prob­ lems those laws were enacted to solve. But in those cases the law itself is not Kaldor-Hicks efficient, and should be changed on that ground. Where corpor­ ations are involved, Kaldor-Hicks efficiency is all we need.22 We need a balanced approach here. All too many theorists on the left are quick to claim that big is bad almost reflexively, and to condemn mergers and other business growth as presumptively anticompetitive. This is a mistake. Coase realised early on that in some cases a large, vertically integrated business will economise on transaction costs by substituting an internal transaction for a market transaction. This is likely to be important where the market transaction is difficult to police for quality and for other forms of shirking.23 The new insti­ tutional economics has expanded this idea in recent years, showing how many forms of business transaction previously suspected of being designed to attain market power are instead designed to reduce transaction costs.24 And indeed, many people on the left fail to recognise that government regulation is in many cases a major driver of increased corporate size. This is because complicated gov­ ernment regulations can be very costly to comply with, necessitating the hiring of whole departments devoted to compliance. The costs of such compliance are much easier to recover if spread over a large business than a small one, since they tend to be fixed or at least partially fixed costs that are incurred by small and large firms alike.25 At the same time, I think at least some thinkers on the right are not suffi­ ciently sensitive to the power that corporations, as opposed to government, can exercise over people, especially their employees. Some of this is of course neces­ sary to police shirking, theft and other “agency” problems, where employees and other agents are insufficiently motivated to act in the interest of their employers or principals. But some is disturbing, especially when it involves intru­ sion into employees’ activities away from work or intrusive collection of poten­ tially private data. Opposition to this among people generally dedicated to promoting freedom should be more vocal than it frequently is.26 Of course, employees can and do resist such intrusion by exiting and working at firms who

22 I believe that restrictions on price-fixing and other horizontal agreements are justified even as to individuals on a theory of mutual advantage, as we all gain ex ante from prohibiting such activities by others more than we lose ex ante by not being able to do it ourselves, but will not try to establish that here. It is highly likely, however, that if we did not have corporations we would not need competition law: the common-law refusal to enforce contracts in restraint of trade would be all we needed. See Epstein 1995, pp. 123–127, who suggests that this would be enough as things are, although in my view unconvincingly. 23 See Coase 1937. 24 See, e.g., Williamson 1985. 25 For a balanced discussion of this, and the related issue of small business exemptions from gov­ ernment regulation, see Bradford 2004. 26 See generally Anderson 2017.

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use less intrusive and more humane ways of governing the workplace, but if the employer is too large, or at the limit a monopsonist, the ability to do this is limited. To the extent this flows from powers granted by government, govern­ ment is fully within its rights to regulate it (although all too often it is complicit). More generally, recent trends in corporate concentration are worrying, and show signs of creating significant growth in both monopoly and monopsony power. It is especially worrying that control of mergers and acquisitions has diminished in recent years, especially in the United States.27 Since corporations are the creatures of law, and their ability to acquire other businesses in many ways a consequence of limited liability, strong limits on mergers and acquisitions are not difficult to justify on a theory of justice as mutual advantage. Of course, whether such limits are warranted is an empirical matter on which reasonable people can differ.28 Other cases involving corporations are more difficult. Although corporations have no rights of their own, we can and do confer rights on corporations to protect values of persons who do have rights. To take an obvious example, most newspapers are incorporated; we nonetheless grant them freedom of the press to protect the people’s rights to receive information that only a free press can pro­ vide. In the controversial Hobby Lobby29 case, the US Supreme Court held that the corporate employer had the right to refuse to fund its employee’s birth con­ trol based on religious objections. While in a sense a corporation cannot have religious beliefs, we can and should protect the religious beliefs of its share­ holders by refusing to say that they lose their right to religious freedom by using the corporate form, at least in the context of a closely held corporation, as opposed to a public one. The US Supreme Court’s Citizens United case30 is a more difficult problem. Restricting corporations from contributing in elections is arguably directly linked to curbing the power they have as a result of the government conferring on them the benefits of limited liability, which, as I have said before, they are not entitled to as of right. The countervailing argument, however, is that it is dangerous to allow the government to restrict political speech in any way, as it is political speech that enables us to control our government, not the other way around. These arguments are finely balanced in my view. The decision is not

27 See, e.g., Tepper and Hearn 2018, Wu 2018.

28 For a more sanguine view on the benefits of big business, see Atkinson and Lind 2018,

Cowen 2019. I am for the most part on the side of the latter authors, but the issue is largely an empirical one of whether the benefits of economies of scale outweigh the negative conse­ quences of increased concentration, which consist mainly in facilitating oligopolistic pricing. I also believe the critics of big business have a point when it comes to mergers and acquisi­ tions, which should probably be restricted more than they have been in recent years. Address­ ing this issue properly would require another book. 29 Burwell v Hobby Lobby, Inc. 573 U.S. 682 (2014). 30 Citizens United v Federal Election Commission, 558 U.S. 310 (2010).

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the outrage that its opponents on the left allege, but I lean towards the view that the dissenters have slightly the better of the argument in that case.31 In short, corporations are created by government because it is to our general advantage that they have limited liability and the other attributes the law gives them. They have no rights of their own, but we can and should give them market rights because the market is good. We can restrict them when consider­ ations of general welfare justify those restrictions, especially if the reason for the restriction is to limit the power that limited liability itself helps them to acquire, but we may not trample on the right of individuals simply because they use the corporate form.

Employment Many—probably most—jurisdictions today have various statutory forms of regu­ lation of the employer–employee relationship. Virtually none of these are justi­ fied on the basis of mutual advantage. Virtually all represent attempts to shift the advantage in some way, usually but not always in favour of the employee. The rationale for this intervention in the employment relationship virtually always fails. These relations are best left to the market. The main argument for legal intervention involves unequal bargaining power. Except in cases of extreme monopsony power, however, this argument fails. Almost everyone has numerous choices as to for whom, and under what condi­ tions, they will work. Of course this does not mean they will be able to obtain whatever conditions they want at whatever pay they want: no employer will pay an employee more than the value of what he contributes to the employer’s bottom line (the employee’s marginal product in economic terms). But in the absence of monopsony power, which is very rare in the employment market except in niche markets (sports comes to mind, where there are significant issues of monopsony power), employers will generally have to pay employees their marginal product or lose them, and their ability to impose other onerous terms and conditions of employment is likely to be very limited. This comes through especially clearly in debates over minimum wages. Economic theory is very clear in stating that any attempt at price controls, of which minimum wages are a stock example, will lead to dislocations in the market, which in the case of minimum wages means unemployment.32 There are of course studies suggesting that at least fairly small changes to minimum wages do not lead to unemployment immediately, of which the Card and

31 With respect to both Hobby Lobby and Citizens United, my arguments are not meant to be discussions of the correctness of those decisions under existing US Constitutional law; that would require a far longer discussion than I have given. Rather, I am arguing about what the theory of justice as mutual advantage would require in these cases. That theory would require a quite different constitution than the current US Constitution, as I discuss briefly in Chapter 10 and intend to discuss in more detail in future work. 32 Mankiw and Taylor 2017, pp. 341–344.

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33

Krueger study is the most famous. The main difficulty with these studies is that in order to screen out the effect of other variables, which is a difficult challenge for econometric studies such as these, they have to look at only short-term effects. It is indeed likely that most employers do not respond to relatively small changes in the minimum wage with immediate layoffs—there are many problems associated with such a strategy. The more difficult issue is whether they hire fewer workers in the long run as a result, and especially whether increases in the minimum wage lead to increased automation, which involves substituting capital for labour.34 Even if it were true that wages could be increased without causing unemploy­ ment, there is no basis in justice as mutual advantage for intervening in the market to favour one party. The reason for the intervention seems to be simply the fact that employees are more numerous than employers, and thus have more votes, but this is not a justification, just an explanation. The tendency to inter­ vene appears to be based on a fallacious notion that employees have a right to a “living wage” or some similar notion that they are entitled to be paid, not on the basis of the value of what they produce or contribute to production, but rather on the basis of what they need to live. But the employee’s needs are not relevant: an employee is being paid for value produced, and it is not the employ­ er’s concern how that relates to his needs. Of course, an employee cannot in the long run work for less than what he needs to survive, but that issue is one for the employee, not the employer. Employers simply have no duty to pay more than a market wage, which will be based on the employee’s marginal product. It is for the employee to find a way to make sure that he is sufficiently productive to live on what he produces. If anyone has a duty to supplement that amount (which I contend they do not) that duty falls on society as a whole, not the employer. Most people who favour high minimum wages seem to tacitly assume that employers are getting away with underpaying their employees. But there is no reason to think this could happen in a competitive employment market, and little evidence that most employment markets are not competitive. There is of course a case to be made that minimum wage laws could be mutually beneficial in monopsonist markets, but most advocates of such laws advocate their applic­ ability across the board, including to “mom and pop shops” that might well be driven into bankruptcy by such laws. If such laws are ever justified, it is for employers such as Walmart that may have monopsony power in some markets. There are other pockets of monopsony employer power in the economy, espe­ cially in the case of sports, but these markets are not affected by the minimum

33 Card and Krueger 1994, 1995.

34 For the best recent discussion of these issues see Neumark and Wascher 2010. For a brief

summary of the issue, see Gorman 2008. There is a huge recent literature on this issue which I believe still shows that minimum wages cause unemployment, but I cannot discuss that lit­ erature here.

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wage for the most part. The relatively few exceptions do not justify intervention into employment markets that generally function well, given the harm (includ­ ing harm to the very people that minimum wage laws were designed to help) that such legislation causes. The same is true of most other interventions in the employment relationship, and for similar reasons. One common such intervention is the prohibition in many jurisdictions against “unfair dismissal.” Of course, employees can and fre­ quently do bargain for some protection against such dismissals: they are a common feature of union contracts, for example, and there can be no objec­ tion to them if they are agreed contractually. But such protections are quite costly for employers, including those, surely a majority, who have no intention of dismissing employees capriciously. The difficulty of course is that it will not always be easy, and will normally be costly at least, to prove that an employee who was dismissed for perfectly sound reasons was treated fairly. The ability to claim unfair dismissal, even if not a valid claim, is a valuable bargaining chip for a bad employee, and is likely to lead many employers not to bother dismissing them. It is likely to be good employees who suffer when bad employees are retained because it is too much trouble to sack them. Certainly the person who would have been hired to replace such a poor employee loses out. Most employ­ ment law serves essentially to entrench existing employees and exclude new employees, who might well be more efficient and innovative. There could well be an enormous deadweight loss from such laws, but it is impossible to know because we do not know what discoveries would have been made or products improved had firms been free to hire the best workers rather than retain ones they could not prove were incompetent.35 The same analysis shows why laws against discrimination in employment are not justified. Here the justification is usually explicitly moralistic: the main justi­ fication given for such laws is that discrimination is wrong, a justification that is illegitimate under the approach of this book. In saying this, I am not endorsing discrimination: a rational employer should hire, fire and promote based on who can best do the job, not on such irrelevant grounds as race, gender, age, sexual orientation etc. If he does not, he is likely to pay the price himself in the form of reduced profits.36 But my or anyone else’s disapproval is not a basis for legal prohibition. There can be little doubt that the threat of a discrimination suit, and the burden in terms of legal fees that defending against one involves, is a major weapon that employees who should be dismissed can use to protect themselves at the expense of their hard-working and qualified fellows and the applicants who are not employed because incompetent employees are kept on as a result of the fear of meritless suits. The punishment of the marketplace is enough to deter capricious employers.37

35 See Epstein 1995, pp. 151–169. 36 See Becker 1971. 37 See generally Epstein 1995.

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Notice that for the most part employees are free to leave their jobs for any reason, good or bad. Courts essentially never require a person to keep working for an employer if he would rather not, and only rarely even impose damages on employees who quit, even on short notice. Why should employers have fewer rights? There are undoubtedly occasional abuses by employers in the absence of regulation, but the cure is worse than the disease. Absent a strong case that there is market failure here, a case almost entirely lacking, employers and employees should be treated the same, and employment at will should be the rule for both.38 The simple fact that employees have the votes is not a reason for giving them additional rights, and it is an indictment of democracy that it permits such a result. As Milton Friedman argued long ago, employment dis­ crimination laws are simply the enforcement by a majority of its preference for equality.39 But promoting equality is simply not a legitimate aim for govern­ ment: it is not mutually beneficial, but rather benefits some by harming others. There is a reasonably good discussion of antidiscrimination laws in Zamir and Medina’s Law, Economics and Morality.40 There they conclude that the justifica­ tion of such laws ultimately hinges on a judgement that discrimination is immoral. But such a conclusion is not possible in a theory of justice as mutual advantage. People who believe in equality should of course avoid discriminating, and as noted above even those who don’t should avoid discrimination for pru­ dential reasons. But this cannot justify giving people a right to sue people who discriminate, a right that limits employers’ ability to run their businesses effi­ ciently because of the threat of litigation, however meritless. There is no reason at all to believe that the heavy costs of such laws are offset by any benefit to society once one discounts, as we must, the idea that promoting an equal soci­ ety is an acceptable role for government. While government has no business promoting equality, the same is not true for private individuals. Committed egalitarians should be free to hire minorities and women preferentially in order to promote the more equal society they favour. If employment discrimination is not prohibited, neither is affirmative action. Moreover, employers are free to commit themselves contractually to be “equal opportunity employers” and to allow people to sue them should they breach this duty, and private individuals are free to only do business with employers who make such a commitment. Of course, all of this applies only to private employers; public employers should be subject to different rules, which should prohibit all forms of discrimination. Even more suspect is the intervention in the market to support or oppose labour unions. The history in many countries is a political back and forth, in which a pro-labour party passes pro-labour laws when it is in power (e.g. the Wagner Act in the United States), and the other party passes anti-union laws

38 See Epstein 1984.

39 See Friedman 1962, pp. 108–117.

40 Zamir and Medina 2010, pp. 225–256.

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(e.g. Taft-Hartley in the United States) when it is in power. The net effect in many cases is to substitute a bilateral monopoly (union on one side, employers bargaining as a unit on the other) for what would otherwise be a competitive market on both sides. Bilateral monopolies create enormous potential for bar­ gaining breakdowns, something that is observed in practice all too often.41 Again, in the absence of proof of market failure this is all unnecessary and perverse.

Occupational licensure In his momentous book Capitalism and Freedom,42 Milton Friedman demon­ strated that the practice of occupational licensure had mostly pernicious results. The example he dwelt on was taxicabs in New York City, where restrictions on competition from taxi drivers resulted in taxi medallions selling for six-figure sums, just for the right to drive a taxi. This practice both dramatically reduced job opportunities and led to much higher prices than would exist in a competitive market. Although companies like Uber and Lyft have made things much better recently, taxi drivers try hard to drive this competition out wher­ ever they can, and have recently been successful in several UK cities, to the det­ riment of consumers. This problem is endemic in the United States, where over one quarter of the workforce needs a licence to work at their job. Cosmetologists, interior design­ ers, embalmers and florists, for example, are required to have licences in order to work, and restrictive practices in issuing these licences mean holders earn excessive wages that are paid for by higher prices for consumers.43 The Obama Administration’s Council of Economic Advisers issued a comprehensive report on this practice in 2015, concluding that it imposed large welfare losses and generated dubious benefits in terms of health and safety or quality of goods and services.44 Although one could defend this practice for a few professions such as doctors45 and airline pilots (my own profession, law, is frequently cited as well but I actually think it is not a good example), it is hard to see why florists

41 42 43 44 45

See, e.g., Muthoo 2008, pp. 55–59.

Friedman 1962, pp. 137–160.

See generally Kleiner and Krueger 2013, Pizzola and Tabarrok 2017.

Council of Economic Advisers 2015.

Even in the case of doctors and other medical professionals, Dean Baker argues convincingly

that the licensing authorities, at the behest of existing license holders, are far too restrictive in allowing foreign medical professionals to practise in the United States, greatly increasing the cost of health care there. See Baker 2016; see also Lindsay and Teles 2017. In addition, the medical profession waged war on the practice of fraternal and other societies hiring doctors to provide services to their members for annual dues payments, on the ground that it undercut doctors’ fees, which was probably true but demonstrates how restricted competition, not the free market, leads to the exorbitant earnings doctors and other professionals enjoy, especially in the United States. See Beito 2000.

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should be forced to have a government permit to work. These protections are not, despite the protestations of their backers, designed to protect the consum­ ing public: they are instead designed to reduce competition and raise prices, to the great detriment of consumers. They also have other bad effects: they inhibit people from being able to move from one state to another because of the need to obtain a new licence, and also reduce the ability of foreign immigrants to work and earn a living.46 They also tend to require excessive levels of education and other training, thereby exacerbating an already severe problem of excessive credential requirements for jobs which drives up demand for education beyond what is really needed to do the job. Finally, most occupational licensure regimes prohibit convicted felons from obtaining a licence, even if the conviction is unre­ lated to the work the person is now seeking. This further increases the stigma effect of criminal convictions and undermines rehabilitation by cutting off careers to reformed convicts. The victims are both consumers, who pay much higher prices and have fewer choices because of reduced competition, and workers who are excluded from earning a living in their most preferred profession. The Obama CEA concluded that while the practice as actually carried out in the United States had high costs and few benefits, it might be justifiable if car­ ried out with greater care and attention to costs and benefits. I think they are far too optimistic. The problem is the familiar one of “regulatory capture”; that is, the small number of people who benefit from the restrictive rules earn enough from the restrictions to warrant lobbying to obtain them, while con­ sumers and others harmed by the practice have neither the knowledge nor incentive to fight the restrictions.47 I think we would be better off prohibiting occupational licensure altogether. It might require us to adopt other methods to protect ourselves against a few people who should not be working, such as quack doctors and lawyers, but we would gain far more in the form of increased competition and increased choice.48 Although a perfect government would license only where the benefits of doing so clearly outweighed the costs, we do not have perfect government. As the costs of occupational licensure outweigh the benefits, we are better off doing without it. Certainly this area of regulation does not support the idea that statutes in general improve the law; it is a prime example of how they make the law much worse.49

Intellectual property Patents and copyrights are controversial subjects even among libertarians, as they arguably fit within a recognised category where market restrictions are necessary to

46 47 48 49

See Johnson and Kleiner 2017.

See generally Stigler 1971, Olson 1974.

See Sandefur 2010.

For a report showing similar trends, and reaching similar conclusions, with respect to the

United Kingdom, see Shackleton 2017.

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obtain “public goods” or avoid “market failure,” which amounts to the same thing. The argument is simple: if I undertake costly research and development which leads to a new and highly useful invention, others who are able to copy my invention once I market it can sell it cheap and prevent me from recovering my high up-front research costs. Seeing that this is true, I will not incur these costs in the first place, and the invention will never get made. Giving me a monopoly on the invention for a limited time enables me to recover these costs, and no one really loses anything since without me the invention would have never been made. One objection to this argument that should be discounted heavily is the argu­ ment that instead of giving me a monopoly, the government could instead sub­ sidise my research or award prizes to those who make useful inventions. The second of these suggestions is certainly better than the first, but neither is better than awarding a patent, if the premises of the argument were correct. The problem is that having the government subsidise innovation involves the government picking winners and losers, which is problematic even if the govern­ ment could do it well, which we have no reason to believe it can do. And second, a subsidy requires general taxation to fund it, so everyone pays even though only some benefit from the invention. The beauty of a patent is that only those who buy the product pay the subsidy, and if the invention is not useful no one does since it will not sell. A patent monopoly internalises the costs and benefits of innovation far better than would any government prize or subsidy. The problem is that the premises may well be false. A patent lasts for twenty years, and is fully justified under the above argument only if the invention would not have taken place for at least twenty years without it. This is unlikely to be true; indeed, frequently inventions are discovered independently fairly soon after each other, with the first to file getting a monopoly even if someone else would have filed for the same invention the next day. Moreover, sometimes patents can deter further improvements as even a better invention may infringe on the original patent. Especially when there are multiple patents in a field, they may make further research in the field more difficult or even impossible without infringing the patents, and thus actually deter innovation rather than spark it. Moreover, it is hard to be sure that many innovations would not be made even without conferring a patent monopoly. Being the first to invent something is prestigious, and some might undertake the work just for the glory of being first. In addition, even without a patent a useful innovation gives the innovator a first mover advantage that may last for years even if others are able to make and sell the same product legally. A patent monopoly has an obvious downside, the downside that comes with any monopoly, which is that it permits prices well in excess of the cost of pro­ duction and thereby gives rise to deadweight social losses. If patents lead to useful innovation it might well be worth incurring these costs, but it is surpris­ ingly difficult to demonstrate that the patent system actually does promote innovation. Indeed, it may well retard it. Empirical research in this area has

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failed, despite repeated attempts, to show that patents actually do promote innovation, let alone provide benefits that outweigh the clear costs.50 The issue with respect to copyright is less clear cut. Copyrights are infringed on only if a work is copied, and thus do not preclude independent innovation, at least in theory (in practice it may be difficult to tell). Moreover, with at least some types of copyright independent invention is implausible: no one else could write Moby Dick independently of Herman Melville no matter how long they had (monkey at typewriter thought experiments notwithstanding). Although Shakespeare and many other authors wrote without the benefit of copyright, the technology of the time for reproduction was primitive, and he went to great lengths to prevent full scripts of his plays from being available even so. Notice that copyrights (and indeed other forms of intellectual property) are importantly different from other forms of property in one critical way. Although copyright apologists like to characterise infringements of copyrights as a form of theft, they are radically different from theft. If I steal your watch, you no longer have it; my stealing imposes a loss on you. If I copy your music, you still have it; my action does not impose a loss on you. Of course my doing so may make it harder for you to make a profit, but that is a gain, not a loss. And while there can be no objection to your making money off something if giving you a property right to do so is mutually beneficial, if doing so is not mutually bene­ ficial you have no basis for claiming an entitlement to make those profits. Having to comply with copyright imposes real costs on people. Culture inher­ ently builds on previous culture, and giving too many rights to old culture inhibits the growth of new culture.51 Think of the draconian attempts by copy­ right holders to limit file sharing by consumers of music, as well as the difficul­ ties music teachers have with photocopying music for their students to learn to play where that music is still copyrighted. Academics are well aware of the diffi­ culties copyright creates for attempting to put together packets of reading material for students. It also leads to absurdly high prices for textbooks in the United States, reflected in the fact that many such books have international edi­ tions that are sold at less than half their US price, with warnings on their covers that they may not be resold in the United States (thus preserving their ability to gouge US students). Copyright imposes very real restrictions on the liberty of everyone, and these restrictions of liberty are justified only if there are clear benefits to everyone that flow from those restrictions. That said, almost everyone agrees that it would be wrong for a publisher to be able to print copies of the Harry Potter novels, for example, without paying the author, J.K. Rowling, anything, or for me to be able to sell copies of the latest U2 album for just over the costs of the physical compact disc without paying U2 anything. We recognise a basic social norm that entitles people to

50 See generally Boldrin and Levine 2010. See also Lindsay and Teles 2017, Chapter 4. For a defence of intellectual property against these attacks, see Cass and Hylton 2013. 51 See Lessig 2004.

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the fruits of their labour and are prepared to accept reasonable limits on our freedom that are necessary to make that happen. It accordingly seems very hard to quarrel with limited copyright protection, along the lines of the first copy­ right law, the Statute of Anne 1710, which conferred protection only against copying, not derivative works, and lasted for fourteen years with a one-time right of renewal for fourteen more years. Today’s much longer protection (life plus seventy years in the United States), along with protection against derivative works, seems very hard to justify, especially given the tendency to provide such protections even for works that have already been produced, and when incen­ tives were obviously not needed to motivate the original work. Many—probably most—people believe that authors, artists, musicians and other creative people “deserve” their rewards, and in many ways that reaction is understandable. I suspect even without copyright J.K. Rowling would be rich, but nowhere near as rich. I don’t begrudge her any of her wealth, but if copy­ right involves real costs, as it undoubtedly does (copyright litigation can be very expensive and the results contestable: consider any number of famous cases such as the “Rum and Coca Cola” case recounted in Louis Nizer’s book My Life in Court,52 the litigation over whether “My Sweet Lord” infringed on “He’s So Fine” and the recent case involving the song “Blurred Lines”), then we should not put up with these costs for the sake of rewarding authors and artists more handsomely. In sum, it is very likely that we would be better off without intellectual property53 law. Although a narrow copyright law along the lines of the Statute of Anne or early US copyright law based on it might well be mutually beneficial, the current bloated and costly patent and copyright laws in effect today, imposed on developing countries via the TRIPS Agreement of the World Trade Organization, are indefensible. Although it might be possible to devise intellec­ tual property law that would on balance be socially beneficial, it seems unlikely that such a law would be politically feasible. They do not speak well for democ­ racy or for government intervention in the market in general. Intellectual property in any event is not part of the free market, but rather a legislative distortion of it. It is a prime example of the law being used to redistribute from poor to rich. But once again, the answer is to repeal the law or modify it extensively, not to use these laws as an excuse for further redistribution in the opposite direction. As Frederic Bastiat argued in The

52 Nizer 1962.

53 I have not discussed trademarks, which are arguably defensible as protecting consumers

against fraud and deception, and may also promote consumer welfare by giving providers of goods and services a good name to protect and therefore an incentive to avoid fraud and shoddy products. See Cooter and Ulen 2012, p. 132. Certainly I reject totally the silly argu­ ments made by Naomi Klein in Klein 2000 against them. See “Why Naomi Klein Needs to Grow Up,” The Economist, 7 November 2002, correctly referring to her book as “page after page of engaging blather, so totally devoid of substance.” Unfortunately Klein did not grow up, but got worse over time. For a much more rational Klein, see Benjamin Klein 2008.

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Law, the answer to lawful plunder is not to have everyone plunder every­ one, but rather to abolish plunder.

Zoning/planning Laws limiting the uses to which owners of land can devote their property are now commonplace, and there is no doubt that at least some such laws can be justified as mutually beneficial. The law of nuisance of course provides significant protection to neighbouring landowners, as it generally incorporates the Latin maxim “sic utere tuo ut alienum non laedas,” or “so use yours as not to injure another’s.”55 Some such limitation is needed to make private property in land mutually beneficial, and is therefore consistent with the argument in Chapter 7 for such property. The fact that neighbours have some rights, however, does not warrant allow­ ing them to impose controls on land uses that go beyond what is necessary to prevent harm to neighbouring land. In particular the phenomenon of zoning restrictions, as they are called in the United States (the UK term is planning law), has been much abused, in ways that impose very large costs on the poor. Restrictive zoning drives up property prices in many jurisdictions by restricting the extent to which new buildings, especially housing suitable for low-income residents, can be built on land in the most desirable areas. These can take the form of minimum lot or setback sizes, height restrictions or even total prohib­ itions on multi-family housing. Ironically, the cities that limit the amount of housing that can be constructed are some of the places that pride themselves the most on being “progressive” and caring about the poor. Until recently pro­ gressives seem to have been blind to the fact that their own policies are respon­ sible for the excessive cost of housing that essentially zones out poor people, but recently awareness of this fact has become more widespread.56 Edward Glae­ ser of Harvard has been at the forefront of economists studying this issue and has shown that restrictive zoning adds over 50 percent to the cost of housing in many cities, such as New York and San Francisco.57 Recently scholars have esti­ mated that zoning restrictions in many successful cities, such as San Jose, New York and San Francisco, by making housing unaffordable in those and other places, have reduced aggregate growth over the period from 1964 to 2009 by more than 60 percent.58 Similarly, it is well documented that in the United Kingdom planning restrictions have hugely inhibited the construction of new housing, generated a shortage of affordable housing and caused the escalation of housing prices to levels unaffordable by workers in the very cities where they work. Many

54 55 56 57 58

Bastiat 1849.

See Smead 1936.

See, e.g., Lindsay and Teles 2017, Chapter 2, and Yglesias 2012.

See, e.g., Glaeser, Gyourko and Saks 2005.

Hsieh and Moretti 2019.

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critics mistakenly attribute this housing problem to the “market,” but it is anything but the result of market forces: it is the result of government forces, in the form of NIMBYism (“Not In My Back Yard”).59 Such restric­ tions are also totally unnecessary, as there are ready market-based solutions via the use of restrictive covenants and similar common-law devices in add­ ition to nuisance law.60 Another major cause of housing shortages is rent control. The fact that rent control leads to housing shortages is a basic result in economic theory, and is well documented in practice.61 Rent controls are also straightforwardly not per­ mitted under a theory of justice as mutual benefit: they are explicitly intended as an expropriation of landlords for the benefit of tenants.62 Although some might try to rationalise them as a cure for the inflated land prices that are caused by zoning restrictions, their harm to the housing market makes a bad situation worse, and is a prime illustration of why adopting one market restriction to cure another one is a classic case of the cure being worse than the disease. This whole area is an object lesson in why market solutions beat democratic solutions.63

Conclusion Examples could easily be multiplied of how when democracies are permitted to alter the rules of the common law, they usually do not improve things but

59 See Pennington 2002. 60 Ibid. On the economics of zoning generally, see Fischel 2015. Although Fischel advocates reform rather than abolition, and his reforms would undoubtedly be an improvement, I believe he understates the extent to which allowing democratic control in this area at all is simply unjustifiable on the basis of mutual benefit. But I sympathise here, as elsewhere, with those who urge reform in part because abolition is deemed unachievable. My purpose here is different, and designed to show that democracy generally makes things worse rather than better. 61 See, e.g., Miller, Benjamin and North 2017, pp. 65–71.

62 See Nozick 1974, pp. 270–271.

63 Lindsay and Teles 2017, Chapter 3, argue forcefully that financial regulation is also a prime

example of government regulation that redistributes wealth from the poor to the rich. I agree with their argument, but the area of financial regulation is the subject of a huge recent and contested literature in light of the 2008 financial crisis. The literature is so vast and disputed that it would be useless to try to summarise it in this book, as well as beyond my own expert­ ise. I will content myself with the observation that to the extent they are right, the solution is not more regulation, but rather deregulation. See Allison 2012. Indeed, I think the case is overwhelming that the primary cause of the 2008 financial crisis was the government’s inter­ vention in the housing and financial markets designed to make it easier for lower-income people to buy homes, a goal pursued by leaders in both political parties. It was government promotion of housing purchases by people who had no business buying houses, and not the market, that led to the crisis. However, this case has been ably made by others. See, e.g., Wall­ ison 2016 and Norberg 2012.

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64

frequently make them worse. This is because unlike the rules of the common law, which are based on mutually beneficial social norms, majoritarian decisionmaking allows laws that benefit some at the expense of others. Recognised prob­ lems of public choice, which allow well-organised minorities to impose costs on majorities who lack the incentive to learn of, much less oppose, such interven­ tions, mean that in most cases democracy does not even lead to situations that are Kaldor-Hicks efficient; that is, where the gains to the winners outweigh the losses to the losers. Still less do they result in mutually beneficial gains. The only area that we examined where it looks like statutes have improved the law is in the area of corporation law, and even there many will contest my judgement that we are better off with corporations than without them. My cau­ tious conclusion is that we are better off with the capital accumulation that cor­ porate law, including limited liability, makes possible, but that we must accept the need for at least some limits on this legislatively generated power, primarily the limits imposed by the justified parts of the competition laws. But outside this area legislatures have done far more harm than good. We would be better off if they were disabled from law-making in these areas. Instead we should resolve all doubts in this area in favour of freedom, not in favour of regulation. We simply do not know the solutions that free persons would have arrived at to solve the problems that made people seize on the false hope that government would make things better by doing something, whether or not it had the know­ ledge needed to make things better. But we do know that government almost always makes things worse, however benign its motives. And this is especially true given the opportunity that government action provides for rent-seeking. This is true, but it is not true as a conceptual matter, and is not true because we have a natural right not to be regulated. It just turns out that the common law mostly works, but democracy mostly doesn’t. But when we consider that we do not have a duty to comply with majority decisions just because they are majority decisions, but rather only if a practice of allowing majority decisions is itself mutually beneficial (see Chapter 6), we arrive at the conclusion that we should simply reject the idea that democracies are entitled to limit or modify their citizens’ private law rights. Rather, they and the governments they create should be there to enforce those common-law rights, and to defend the country from outside threats. Giving them any more power simply does more harm than good. I should stress that I have argued this as a matter of legal and political theory: there is simply no justification for a government that goes beyond this, and no duty to obey it when it does. I have not argued that any particular constitution actually does limit the majority to doing what I have argued it should do if it is to command our allegiance. To paraphrase Justice Holmes’s famous dissent in

64 See several of the books cited in this chapter on other issues not discussed here, including Friedman 1962, Gwartney, Stroup and Lee 2010, Miller, Benjamin and North 2017. See also Pennington 2011.

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Lochner v New York,65 I have not argued that the US Constitution enacts Her­ bert Spencer’s Social Statics. To do that I would need to consider in much more detail the language, history and historical understanding of that document, something I have not even attempted to do. I have merely argued we would be better off if it did enact Social Statics, because the conclusions of that book, especially in its first edition when it included an essentially Georgist position on property rights in land, are largely consistent with my own.66 Indeed, as I noted in Chapter 6, many theorists whom I respect take argu­ ments such as mine even further, and argue that we should reject government altogether and embrace anarchism. The best recent such book is Michael Hue­ mer’s The Problem of Political Authority,67 and he gives strong arguments for the anarchist position. My own position is simple: anarchism is the best system except for the fact that it is impossible: any anarchy would soon be conquered by some government or another, as it simply could not defend itself against a determined state. Although states are not very good at most things, they are quite good at killing people. We need states essentially to protect us against other states. As Charles Tilly said, “War made the State, and the State Made War.”68 Anarchists such as Huemer make a brave attempt at showing that a citizens’ militia or similar force could defend an anarchist community against aggression. That suggestion strikes me as totally fanciful. As I was writing this book I sometimes diverted myself by reading Andrew Roberts’s masterful history of World War II, The Storm of War.69 Roberts concludes that only a brutal dictator like Stalin could have enabled the Soviet Union to withstand the onslaught of Hitler’s Wehrmacht: a democracy could never have survived (the war in the West was a sideshow compared with the Eastern Front, and the accomplish­ ments of the British in the war, brave as they were, paltry in comparison to those of the Soviet Union). Whether or not he is right about that, there is no possibility that anarchists could fight off a force like that of Hitler’s Germany. As long as there are other states, we have to tolerate states to fight them off. I am also very sceptical of anarchist arguments that ordinary law enforcement could be better supplied by protective associations or similar devices than by governments. Law enforcement bears strong public good components, and

65 198 U.S. 45 (1905). The majority in that case invalidated a New York law limiting the hours and other work conditions of bakers, on the ground that it was inconsistent with the freedom of contract protected by the US Constitution. I take no position on whether that case was correctly decided as a matter of US law—for a partial defence of the majority, see Bernstein 2011. 66 For arguments that the US Constitution does largely enact classical liberal principles, see Bar­ nett 2013, Epstein 2014. I am inclined to agree with them, but am not an expert on US con­ stitutional law and will not pursue that argument here. 67 Huemer 2012. 68 Tilly 1992, p. 42. 69 Roberts 2010.

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there is great reason to worry that private agencies might become monopolists, and essentially turn into warlords who are far worse than governments.70 This is of course far from a conceptual matter, and governments themselves have a huge tendency to go rogue, as most governments in the world today do. Here I must quote the stirring opening sentences of one of the greatest works ever on political thought, Henry David Thoreau’s Civil Disobedience:71 I heartily accept the motto—“That government is best which governs least,” and I should like to see it acted up to more rapidly and systematic­ ally. Carried out, it finally amounts to this, which I also believe—“that gov­ ernment is best which governs not at all”; and when men are prepared for it, that will be the kind of government which they will have. Government is at best but an expedient; but most governments are usually, and all govern­ ments are sometimes, inexpedient. Stirring words indeed, but men are not yet prepared for no government, as long as there are people, as there may well always be, who are not also able to face up to their responsibility for living their own lives, making their own choices and paying their own way. Government is an evil, but for now a necessary one. What we must find, if we can, is a way to keep it as small and weak as possible, consistent with being able to fight off the much worse governments that will inevitably step into the vacuum that anarchy would create. It is to this task that I turn in the next chapter.

70 See, e.g., Cowen 2007. 71 Thoreau 1965, p. 251.

10 Federalism on Steroids

We saw in Chapter 6, and again in Chapter 9, that public good-type arguments for state action are frequently seriously exaggerated, and that a too ready will­ ingness to accept the necessity for state action based on such arguments should be avoided at all costs.1 At the same time, these arguments cannot be entirely discounted either. Although most people do not behave like homo economicus, who if he existed might indeed decline to pay for even genuine public goods, clearly there are many people who will not contribute as much to such goods as they would be willing to pay in taxes to fund similar goods. It is thus possible, in principle, for a government that provides at least some public goods to be mutually advantageous. Possible in principle but, the public choice literature suggests, rare in practice. A public good is a good that economic theory suggests will be undersupplied in a free market, primarily because it is costly to exclude those who do not pay for the good from enjoying it despite their non-payment. National defence is a common example; if the government has an army that defends the country, it will in fact protect me whether I pay for it or not, since it cannot protect my neighbour without also protecting me. If I am homo economicus, I will therefore refuse to pay. Of course, as we have seen in Chapter 6, there is a large literature showing that people in fact do pay for such goods, but there is no doubt some­ thing to the argument that people will contribute less to goods that they cannot be excluded from than they would be willing to pay if they had to pay to get the good. As we also discussed in Chapter 6, most such goods can probably be provided by dominant assurance contracts, but if the good is critical, as national defence is, we may not want to take our chances. It is thus in principle possible that we could all be made better off by authorising coercion to supply such goods, but we need to carefully avoid doing so too easily, as this would lead to all of the problems identified in the public choice literature.2

1 The single best discussion of this is still Schmidtz 1991. 2 See Chapter 6.

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We should also note an important distinction between public goods and what are more properly characterised as “club goods.”3 A club good is a good that is most efficiently provided to a large number of persons rather than a few, but is not non-excludable and therefore can be provided privately. A prime example would be a golf course, which cannot be efficiently provided for one person (perhaps Donald Trump is an exception) but is not a public good because those who do not pay can be prevented from receiving the good. A great many goods that some people are inclined to call public goods are instead club goods: we need to obtain them with other people but we do not have to use taxes to do so. Examples of this include many goods that are provided by home owners’ associations in planned community developments, including private security, swimming pools and other recreational facilities, trash collection, and potentially schools and roads. The fact that something is frequently or even primarily pro­ vided by governments does not make it a public good; many goods that govern­ ment provides are either private goods or club goods. In economic theory the solution to the issue of how to pay for public goods was developed by the economists Erik Lindahl and Knut Wicksell.4 It essentially calls for people to be taxed on the basis of their willingness to pay for each of the goods in question. This is similar to the “Benefit” theory of taxation, according to which people’s taxes are based on the extent to which they benefit from the services government provides. But Lindahl solutions are sounder because they recognise that values are subjective, and there is no way to determine how much people benefit except based on their willingness to pay. It stands in sharp contrast to the “Ability to Pay” theory of taxes, which I liken to the Willie Sutton5 approach to government—we tax the ones we can. The Lindahl solution to taxation is the only solution that is even remotely consistent with the theory of justice as mutual advantage urged here, as well as with the conception of freedom justified in Chapters 5 and 6. Under it you can be taxed to provide goods to the extent, and only to the extent, that you would be willing to pay for them if that were the only way to obtain them. To the extent that the goods could be provided for less than the total of what people would be willing to pay, a mutually agreeable solu­ tion would need to be found to determine how to divide the burden; the pro-rata solution leaps out as reasonable, but I will not insist here that it is the only possible solution. But the theory in this book must flatly reject tax­ ation based on ability to pay, except to the extent that it functions as a proxy for willingness to pay.

3 See Buchanan 1995. For a good recent exposition, see Marciano 2011. 4 Lindahl 1958, Wicksell 1958. 5 When asked why he robbed banks, Sutton allegedly replied, “because that is where the money is.” Although not all taxation is theft, ability to pay taxation is the slogan of a thief.

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Note that funding public goods by Lindahl taxes in itself has some redistribu­ tive implications. Because rich people are likely to have a higher willingness to pay for many public goods than poor people, they are likely to pay more than a pro-rata share of the costs of public goods. But this redistributive effect is not problematical because it flows directly from the concept of justice as mutual benefit. It is redistribution that requires making some worse off to benefit others that is prohibited by my approach. Redistribution that results from making everyone better off is not objectionable. Although he did not discuss Lindahl, Tiebout and Buchanan at length, Hayek espoused a similar idea of just taxation: Though this looks as if the individuals were made to serve purposes for which they do not care, a truer way of looking at it is to regard it as a sort of exchange: each agreeing to contribute to a common pool according to the same uniform principles on the understanding that his wishes with regard to the services to be financed from that pool will be satisfied in pro­ portion to his contributions. So long as each may expect to get from the common pool services that are worth more to him than what he is made to contribute, it will be in his interest to submit to the coercion. Since in the case of many collective goods it will not be possible to ascertain with any precision who will benefit from them or to what extent, all we can aim at will be that each should feel that in the aggregate all the collective goods which are supplied to him are worth at least as much as the contribution he is required to make.6 In their treatise on taxation and justice, Liam Murphy and Thomas Nagel7 discuss the Lindahl approach and do not reject it outright, except to note that it will only be just if it starts from a just starting point. That is valid so far as it goes, but is not really relevant to the theory of this book, which rejects the idea that there is a “just distribution” that exists independently of what we have actually agreed to. The bigger problem with Lindahl taxes is that they require a mechanism for eliciting truthful information from people as to their willing­ ness to pay for public goods. This is a serious problem because people have incentives to falsify how much they would be willing to pay in order to pay less, and indeed to fool themselves in this regard. Moreover, research on the use of willingness to pay in other contexts reveals that people are frequently not very good at determining what they are willing to pay; they frequently don’t know.

6 Hayek 2012, p. 386. 7 Nagel and Murphy 2002, pp. 79–85. They do note that there will be issues of allocating taxes that produce benefits well in excess of their Lindahl prices, but in my view there are not many such cases, and where they exist they can be dealt with by pro-rata reductions accompanied by a prohibition of taxes that reduce people below subsistence level. See also the discussion of Lindahl taxes in Ackerman 1980, pp. 191–195.

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We need something like a market mechanism to elicit truthful information for the Lindahl method to work. In Chapter 5 we saw that on a sound conception of freedom, we can be said to be free not just when we can do what we want, but also when we are subject only to rules of which we approve; that is, to mutually advantageous rules. We should of course take seriously the requirement that we actually approve of these rules, and not make the mistake that civic Republicans and other partisans of democracy make in suggesting that any democratically endorsed rules meet this requirement. That is true only for those who make a fetish of democracy, something that I (and I hope you by now) am alert to avoid doing. But many of the benefits that go with this conception of freedom are actually club goods; we need other people to enjoy them, but do not have to be forced to pay for them. We can join with other people who are of like mind and purchase these goods together. Of course, this means we will pay more than we would pay if we could coerce the unwilling, but the desire to make other people pay for things that we, but not they, want is not a legitimate one, certainly not from a standpoint of justice as mutual advantage. The obvious cure for all of these problems is federalism, but to work it will need to be a very strong form of federalism, what I call “Federalism on Ster­ oids.” As I will develop it below, this means a much stronger version of federal­ ism than prevails in the United States, in two key respects. First, the basic governmental units need to be much smaller than the current US states, at least most of them. States the size of California, New York and Texas are much too large to accomplish the goal of providing us with true freedom to choose only those goods, and live only under those rules, that we actually want. And second, such federalism must have far fewer issues determined at the federal level than currently prevails in the United States. The basic idea is this: federalism is likely to be as close as we can get to achieving the ideal, which is that of the market. In the market if you like vanilla ice cream and I like chocolate, then you get vanilla and I get choc­ olate. Under government we vote and the majority gets what it wants and the minority do without. Under federalism, I can at least move to a jurisdiction of chocolate lovers to increase my odds of getting what I want. Although this sounds trivial when what we are discussing is flavours of ice cream, it is far from trivial when we discuss issues of government, which has large and mostly bad effects.8 Fully developing the version of federalism I favour would require a separate book, one I hope to write in the future. What appears below is therefore just an initial sketch. Nevertheless, I believe that the ideas in this chapter tie together the various threads I have developed in this book in

8 For an excellent short paper extolling federalism as close to the market ideal, see Buchanan 1995.

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ways that are both practical and appealing, and it is therefore important to at least begin to develop them here.9 I should say here what I mean by “practical,” since many readers will find my proposals impractical in one sense. By “practical,” I mean calculated and likely to achieve the goals and values they are designed to achieve, without requiring undue sacrifice of other values and goals. I do not mean “practical” in the sense that they will not require large changes from the status quo. These proposals would indeed require large changes from the status quo, because the status quo is unacceptable and must be changed, as I believe I have already demonstrated.

The Tiebout model A major source for the ideas in this chapter is a well-known paper by Charles Tiebout, “A Pure Theory of Local Expenditure.”10 The basic idea is that of voting with your feet. If there are a number of competing local governments which offer competing packages of taxes and public services, then each con­ sumer can select the package that best matches his own preferences in deciding where to live. Although his paper is couched in terms of maximising utility, like most economics papers, we can re-characterise it in terms of freedom: by choos­ ing where to live you get freedom in the sense of being subject to the set of rules that most suit your own preferences. Of course, like most economic models, Tiebout’s has a number of simplifying and unrealistic assumptions. In particular it assumes that moving is costless and that people do not need to be in a particular location for their jobs. Neither is true, of course, but this does not undermine the desirability of the idea but rather shows that like all ideas it cannot be achieved perfectly. Giving people as much choice as possible in their selection of public goods is desirable, even if life limits to some extent how they exercise their freedom. As an analogy, letting people choose their own religion is good even if some people will feel con­ strained to adopt the religion of their parents or spouse—that is the sort of trade-off that is an inevitable part of life. Nevertheless, government should not add its own constraints to the constraints life inevitably imposes on our free­ dom to choose. For example, it may well be that the job I want most requires me to live in a location that has a mix of taxes and benefits that I prefer less than some other jurisdiction. That is unfortunate, but is also an unavoidable fact of life, no differ­ ent than if I prefer the climate in another city from the one that has my first choice of job. Life is full of tough choices, and none of us is entitled to insist

9 For ideas very similar to those I defend, see Bell 2017. I do not share Bell’s enthusiasm, how­ ever, for seasteading or for the projects currently underway in Honduras that are discussed in his book, at least based on what I know now. 10 Tiebout 1956. For an excellent updating of the ideas in that paper, see Fischel 2006.

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that everything is arranged for our maximal convenience. Similarly, I may prefer one mix of goods but my wife may prefer another; if so she is likely to win. If you don’t like that, don’t get married. But we can ask that to the extent pos­ sible, our ability to choose is maximised. The Tiebout model does this, as does the Buchanan club model. The Tiebout model may be as close as we can get to determining people’s willingness to pay for public goods in a way that accurately reflects their prefer­ ences. If we are going to force people to pay for public goods at all, as opposed to relying on assurance contracts and similar devices, or simply recognising that life is imperfect and we just need to make do with fewer public goods because the alternative of coercing people to pay for goods they don’t want is worse, Tiebout looks like the best mechanism on offer. The Tiebout approach therefore comes with a strong presumption in its favour. There are of course trade-offs to be made as well with other considerations besides enabling people to select the ideal package of public goods. For one thing, at least some public goods involve economies of scale and scope, such that a large government can provide them more efficiently. Second, many public goods have spillover effects that harm or benefit neighbouring jurisdic­ tions, and ideally we want to draw jurisdictional boundaries so as to minimise such spillovers, other things equal. To take the obvious example, we cannot have each city with its own standards for carbon emissions (and therefore its own degree of global warming), because carbon emissions do not just stay in one place but rather mix throughout the atmosphere. The Tiebout model therefore cannot be used for climate change. It is a global problem with only a global solution. Nevertheless, I believe most alleged public goods are not of the global sort if they are properly analysed. Most public expenditures (national defence may be a major exception, but I will suggest ways around even that later) have predom­ inantly local benefits, and the costs and benefits can be further internalised with some comparatively simple measures. And for others, the importance of accom­ modating different views of the value of the benefits in question, which only a federalist solution can achieve, simply outweighs the importance of achieving perfect cost-benefit internalisation of spillovers. In Chapter 5 I showed that on one important conception of freedom, prob­ ably the only conception that is even approximately achievable in the modern world, freedom consists not in not being subject to rules, but rather in being subject only to rules you agree with. This makes federalism of the sort advocated by Tiebout and Buchanan absolutely critical: it is not just a matter of economic efficiency, but rather a matter of freedom, that rules are imposed only at the lowest possible level of government. Indeed, as we saw in Chapter 6, in a very real sense we are only obligated to obey most of the law if we have a choice about whether to be bound by it, in the form of a robust right of exit. Achiev­ ing a situation in which law is only imposed on those for whom it is mutually beneficial is simply much more important than internalising spillover costs, at least in the case of most such costs.

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To illustrate these issues, in the next section I will look more closely at an issue that many assume must be dealt with at a national (i.e. federal in the United States) level: income redistribution.11 I will show that this issue can be, and indeed should be, dealt with locally, not nationally. But that may require changes in current understandings of Constitutional law, changes that I think are in order in any event.

Income redistribution If you believe that the distribution of income is a matter of distributive justice based on a moral realist theory of people’s entitlements, then you are likely to reject out of hand the suggestion that it can be handled locally, with people who favour high amounts of tax and transfer between the wealthy and the poor living in high-tax jurisdictions and people who are opposed to such transfers living in low-tax jurisdictions. But we rejected moral realism in Chapter 2, and with it we should reject any idea that there is a true morality that dictates what the rich owe the poor. Instead, we should view redistribution as a form of social insurance, where you pay if you are successful and collect if you are not. If so, it should be treated like other forms of insurance, where we each decide how much we want to buy in exchange for what level and type of protection. Of course we also purchase this insurance for others near and dear to us, and must bear that in mind. Finally, most of us care to at least some extent about the welfare of strangers, and that too may make some of us willing to do more than purely self-interested considerations would counsel. For most of human history these issues have been handled locally, through a combination of mutual aid and charity, the latter frequently religiously motivated and carried out. Most religions emphasise a duty to those less for­ tunate, and in Europe churches and monasteries played a key role in aiding the poor. In England it was the closure of the monasteries that at least in part caused the need for a partial public replacement, in the form of the Poor Laws. Mutual aid also played a critical role in many countries, especially before the welfare state largely displaced it. Friendly or fraternal societies played a central role in this process, a form of solidarity among working-class people that involved modest dues, typically paid weekly, in exchange for which workers and their families received various forms of protection, including life insurance to pay for burial expenses and support of dependants, income to replace lost wages in the event of illness or injury, medical care and other benefits. Societies pro­ viding such benefits typically restricted the benefits in cases where behavioural causes (such as drinking, sexual licentiousness or crime) caused the problem, and also monitored payments carefully to prevent malingering or other types of fraud. These problems were in any event less frequent than they are today,

11 See, e.g., Oates 1972. For a good recent discussion of these issues, see Wellisch 2000.

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because members knew that they would be cheating their fellow workers if they engaged in such conduct, not a remote and anonymous state. And because workers paid for these benefits with their weekly dues, they were viewed not as charity but as entitlements, albeit ones with strings based on the fact that they were being paid by other workers.12 Such mutual aid-based welfare assistance is of course far better from the standpoint of a theory of justice as mutual advantage than top-down transfers from rich to poor advocated by modern proponents of the welfare state. Relying on such benefits promotes self-reliance and pride rather than the dependency, indeed helplessness, that modern welfare states cause, and that have recently begun to be serious problems endangering the sustainability of welfare states.13 My own view is that modern welfare states have done far more harm than good and are indeed the main cause of poverty.14 As David Schmidtz wrote: I do know about being poor. My parents grew up in a house with dirt floors. I was the fifth of six children and the first born into a house with electricity. Running water and an indoor toilet came a little later … Given the expense, our parents did not allow our toilet to be flushed more than once a day (and it served a family of eight). We didn’t feel sorry for ourselves. We didn’t ask America to rescue us. We didn’t see ourselves as victims of violence. Lucky for us. Had we been taught to see ourselves as victims, it would have ruined us, for such teaching is poisonous, doing more violence to a poor person’s mind than mere lack of money ever could.15 And of course families have from time immemorial been a major source of welfare assistance, especially for the elderly, where social norms requiring care for aged parents in return for the time and money they spent on their chil­ dren represent the classic example of reciprocity-based welfare that needed no state backing. No doubt these reciprocity-based programmes did not pro­ vide the level of public assistance that modern welfare rights advocates believe a society owes its less fortunate members. But that belief is simply another preference, which these advocates are of course entitled to promote and devote their own resources to funding. It is in no way binding on those who do not share it. If welfare backers believe that reciprocity-based welfare protection is inadequate, they can and should convince others to contribute to churches, charities and other societies to further assist those who need assistance.

12 See especially Beito 2000. See also Thompson 1991.

13 See the sources in Chapter 4, note 48.

14 See Bartholomew 2015. I also highly recommend in this connection a number of David

G. Green’s works. See Green 1999, 2001. 15 Schmidtz 2000, p. 704.

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It is likely that such efforts would attract far more support than they do at present if people were no longer forced to fund welfare programmes with which they do not agree. This is not only because people would have the tax money presently wasted on government-provided welfare, but also because they would cease to view providing for the poor as a state function and instead see it as something that each individual must decide based on his own conscience. Most people are not egoists, nor are they homo economicus; they are willing to help those less fortunate than themselves, but oppose our current welfare system because it promotes idleness, fecklessness and risky behaviour by shifting the costs of such behaviour away from those engaging in it and onto the productive members of society. For example, although I oppose unconditional handouts to the poor, I would favour and support programmes designed to help those who are unemployed find and hold onto jobs. That is because I strongly believe that employment is by far the best anti-poverty programme, and promoting it does far more good than enabling unemployment by softening its consequences. There is a large and growing literature that supports this position.16 For similar reasons I am opposed to the idea of basic income, a term for schemes that would provide everyone with an income, usually at a subsistence level, without having to work.17 There are even libertarians, notably Charles Murray, who argue for such a position, although to be fair Murray only says that a basic income would be better than our current welfare state, and would favour abolition of welfare over both.18 Most such arguments are based on a form of moral realism that assumes we have moral obligations to the poor, and can therefore be safely dismissed. Michael Moehler, however, makes a contractarian argument that requires brief further examination.19 Essentially he argues that in societies as advanced as our own rational people would bargain for a right to subsistence to offset the risks of not being able to earn enough in the market. As we saw in Chapter 1, even Hayek was inclined to accept such a right to basic subsistence on the same grounds. Moehler uses this to argue for a subsistence-level basic income. Although I do not think this argument can be rejected out of hand in the same way that arguments based on a moral obligation to the poor should be, I remain unpersuaded. Moehler argues, following Rawls, that the Aristotelean Principle that people enjoy exercising their capacities and would work even if work were not necessary to survive would prevent a basic income from under­ mining work incentives so much as to make it impractical. I do not find this at all plausible. This Aristotelean idea might mean that philosophers and academics might work even if they didn’t have to, but the majority of people with boring

16 17 18 19

See, e.g., Feldman 2011, Cove 2017.

See, e.g., Van Parijs and Vanderborght 2017.

See Murray 2016.

Moehler 2018.

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or stressful or physically demanding jobs would simply not work to anything remotely approaching the extent society needs. Many people might find the allure of computer games, endless television or fishing impossible to resist. Per­ haps someday when robots do all the really important jobs, we could adopt a basic income without disaster, but we are nowhere near that point now. As it is, the availability of unemployment and disability insurance is seriously under­ mining participation in the workforce.20 A basic income would be a disaster in this respect.21 I of course realise the welfare rights advocates disagree with this position and will cite many books of their own in support. And they are of course entitled to their opinion on the issue. But I am also entitled to mine, and that is the point. There is no reason why we have to agree on this, or why if we disagree the majority is entitled to impose their view on the minority. People who advocate traditional welfare are free to pay for it themselves, while I can fund the types of programmes I advocate. There is no reason why the government can or should decide who is right on this. The view I am defending here is in no way based on the idea that either the rich or the poor deserve their status or are otherwise responsible for their plight or their good fortune. I am happy to concede that luck plays an important role in determining how people end up, and am not committed to any strong view of free will or of what people deserve. Even if one’s status as rich or poor is entirely a matter of luck, there is no requirement that the rich share their good luck with the poor. I have previously rejected, and continue to reject, the view known as luck egalitarianism: that people have a duty to equalise or mitigate the effects of luck, either brute luck or option luck.22 Of course in some cases it is rational to insure against the effects of bad luck, if the cost is not too high, especially if the bad outcome is one we can ill afford. But sometimes it isn’t: there are many forms of insurance I do not buy because the risk is not worth insuring against given the cost of the insurance and my degree of risk aversion with respect to the risk. A person may, and I do, conclude that the risks of me and those I care about becoming poor are not great enough to justify the costs of the welfare state as it now exists, irrespective of considerations of desert or responsibility.23 These costs include not just the costs of the taxes to pay for the

20 See Olasky 1994, Eberstadt 2012, Mulligan 2012, Murray 2015. These problems are even worse in Europe than in America. See Alesina and Glaeser 2006. 21 That said, considerations similar to those thought to justify a basic income should lead us to favour, on grounds of mutual benefit, rules against positive government action, especially taxes, that reduce people to below subsistence level. This would justify things like a subsistence-level exemption from taxes, bankruptcy exemptions and similar exemptions against execution of judgments, prohibition of debtors’ prisons and the like. 22 On this see O’Brian 2010. 23 Of course, some people may oppose welfare because they hold erroneous factual views about the extent to which wealth or poverty is deserved, and those people may change their views when acquainted with the facts. There is therefore nothing wrong with educating people

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welfare state, though these are huge, dwarfing, for example, national defence expenditures even in the United States with its bloated defence budget. They also include family breakdown, the crime that results and the dependency on benefits that destroys and ruins lives. If the costs were lower the answer might be different; one simply cannot rationally assess whether the welfare state is jus­ tified or not without considering both costs and benefits. Some of the difference in views on welfare are due to differences on factual matters, and of course research should help to illuminate these. But ultimately they come down to value differences, including differences over how to resolve factual disputes where the answers are uncertain. On such issues, I submit that differing views are equivalent to differing tastes in music. I love rock and roll while you may prefer classical and someone else prefers jazz. There is no right answer on which music is best; it is a matter of taste. The right answer is for me to buy rock music and support rock music as I see fit, with you supporting clas­ sical and others supporting jazz. We simply do not need to decide who is right, because there is no such thing as a right answer. Exactly the same is true with respect to helping the poor: it is a preference, nothing more. We should each fund our own preference, and not be forced to fund those of others. I argued in Chapter 7 that to justify private property in land and other natural resources we must compensate those who have no such property, or less than an equal share, and advocated the Single Tax as the efficient mechanism for achiev­ ing this. I do not think we can use this argument, however, as an argument for welfare rights in modern times, because virtually all modern states, at least devel­ oped ones, provide their citizens with a free public education. As I argued there, this is arguably a much better way to compensate people for loss of an equal share to land, as it substitutes a good that is probably more valuable as a means of survival and independence (education) for the right to engage in subsistence farming or similar means of support and independence, valuable in an agrarian society but less so in a modern one. Although we can and should make the fact that we are making this trade-off more explicit than we have done to date, I do not think it is a bad trade or one the poor can legitimately com­ plain about. To be sure, we made it for them and did not give them a choice, but an education is something you need to acquire before you are an adult and fully autonomous, and indeed is needed to become such. It is in principle no different than treating medically an unconscious person in an emergency with­ out his consent, something universally acknowledged as legitimate.

about these facts and urging them to change their views. But their views will not change if they do not base their views on considerations of desert or responsibility. The mere fact that you disagree with my views on factual matters is no warrant for imposing your views on me, any more than you are entitled to require me to buy collision insurance for my car because you think the facts show that it is a good bargain. You are of course entitled to force me to buy liability insurance, because if I drive without liability insurance you and others bear the risk that I will cause an accident that I cannot pay for. The analogy with “welfare” insurance does not hold, since I do not impose the risk of poverty on you.

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In short, a society that gives people a roughly equal share of land and natural resources, or gives them something of greater value to which they are not other­ wise entitled, has done all that justice can possibly require. Many people will want to do more than this, and in some cases I would as well. But this is not a matter of entitlement, not something anyone can legitimately demand of others. If we do more for the poor than this, it is because of a combination of insurance considerations and altruism, and not something to which the poor have a right. We need to send the message to people loud and clear that if they are given more than this, they should be grateful and feel an obligation to repay when able, and certainly should not be making demands for more, unless of course what they are demanding is a contractual entitlement, as it would be if they had purchased insurance or joined a fraternal or friendly society that prom­ ised such benefits. There are those who view poverty relief as a form of public good, however. Among them was Milton Friedman, whom I highly respect.24 Friedman’s argu­ ment was that many of us experience distress both at seeing poverty and know­ ing of its existence even when out of sight, and derive utility when it is relieved, whether by us or by someone else. If this is true, then poverty relief is poten­ tially a public good, since I may be willing to spend more to relieve poverty if I know others will also do so, and I may be tempted to free ride on the charity of others which will relieve my distress at poverty without my paying for it. There is something to this argument, although its significance should not be exaggerated. There is a story often told of a boy who encountered a beach lit­ tered with thousands of starfish, who began throwing some of them back into the ocean to save them. When an adult scoffed at him, saying, “You can’t pos­ sibly make a difference with all the thousands of starfish,” the boy simply picked up another starfish, tossed it into the ocean and replied, “it made a difference to that one.” I think helping the poor is rather like that: we should do it because it helps the individual, not because we derive utility from knowing poverty does not exist. While poverty relief has some public good characteristics, it is not a predominantly public good, at least for all.25 There are a substantial number of people who truly would prefer to live in a society which did not guarantee welfare provision, even if we would almost all want at least charitable provision as a backstop to mutual aid and similar programmes. Poverty relief may, how­ ever, be a club good to some extent: we may be able to accomplish more by working together than by each doing our own thing. But that does not justify government coercion to make us all do the same thing; at most it means we should each seek out meaningful projects and organisations, such as Oxfam,

24 See Friedman 1962, p. 191. Friedman does not, however, discuss the possibility of assurance contracts as a solution, not surprisingly as they had not been invented when he wrote. 25 For a strong argument that relief of poverty is not a public good, see Pennington 2011, pp. 163–165.

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who can make our giving more effective. Nothing in that argument warrants a coercive solution, under which we can compel those who genuinely prefer no welfare state nonetheless to help fund one. I can see, however, how local poverty relief could have greater public good characteristics. Local poverty is more visible to many people, and helping people you encounter every day may be easier to motivate than helping the distant needy you never encounter. Even so, this is not enough to warrant coercing those who do not agree. Another argument might strengthen the conclusion, however. Even if the poor are not entitled to relief, it might be in our interest to make sure that their condition is not desperate, as desperate people are more likely to commit crimes. Indeed for some, prison may be better than their life outside of prison; at least in prison they will have a heated room with a bed, food, medical care and other necessities; outside of prison they may be homeless. At the limit, they might actually commit crimes in order to go to prison, but even if their situ­ ation is not that desperate, prison may not be much worse than the alternative and therefore not much of a deterrent. Such an argument would justify, perhaps, an institution similar to the Victor­ ian workhouse, which was designed to ensure that persons with no alternative at least had a place to sleep and minimal nutrition. The Victorians took pains to ensure that it was not a better alternative than working for anyone able to get and hold a job, under the theory of “Less Eligibility,” and also imposed work requirements on those able to work, partly for that reason and also in a failed effort to make the workhouses pay for themselves. Many workhouses were per­ haps unnecessarily Spartan, but my overall sense is that the workhouse has been unfairly maligned in modern times, and something like it would be better than our current system. But to function as an alternative to prison, it would need to be more attractive than prison but less attractive than work, a balance not always easy to achieve, especially given differences in preferences.26 Assuming therefore that enforcement of criminal law is a public good, as many contend, then a poverty reduction effort that saves more on law enforce­ ment than it costs could also be viewed as a public good. It is not, however, completely clear that enforcement of the criminal law is a public good for every­ one. It is true that when someone who commits a crime against me is locked up, perhaps at my instigation, general deterrence is increased, and a person who may be a danger to others is disabled from offending for a time. If people behaved like homo economicus, therefore, the external benefits of prosecuting offenders might mean there was too little criminal law, if people had to pay the cost of prosecuting criminals who harmed them rather than shifting those costs

26 See Bartholomew 2004. For a lengthy critical discussion of the US equivalent, usually referred to in the US as the “poorhouse” or “almshouse,” see Katz 1996. Katz, however, clearly is a moral realist who believes governments have obligations to the poor, and does not try to justify his disdain for the poorhouse from a standpoint of justice as mutual advantage.

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onto the public. Indeed, in England before the first police were introduced by Robert Peel, criminal prosecutions were mainly private prosecutions; few advo­ cate a return to that system. In fact, however, human beings do not behave like homo economicus; they resent crimes especially against themselves and have strong urges to punish offenders that are much stronger than anything a purely rational person would entertain. There are good evolutionary reasons for this, and evolution may have therefore solved the public goods problem that might otherwise make criminal law a public good. Regardless of these musings, how­ ever, I will for now concede that at least some criminal law is a public good, as discussed in Chapter 8. As a result of these and other considerations, there are many people for whom poverty relief has at least some public good characteristics. Such people may need to know that their neighbours are contributing proportionally to motivate them to do what they agree they should. For such people, an assurance contract may do the trick: I agree to contribute if enough others do as well. But for some, even this might not be enough. Maybe many people would be tempted not to contribute in the hope that enough others would. In short, there is a good argument that poverty relief is a local public good, and therefore should be funded locally, allowing for people who value it differently to move to communities with people with similar preferences.27 Consider then the following possibility. You live in Alphaville. A large major­ ity of the citizens of Alphaville all agree to contribute $500 each to a local char­ ity that targets poverty in Alphaville, and vote to require all residents of Alphaville to do the same. When you object, they say to you, “you can move to Betaville, next door. It is exactly like Alphaville, except that they have no such programme, and as a result more poverty.” Is this an adequate response? This response becomes stronger once we recognise that while robust rights to property in land are eminently justifiable, rights to live in particular places are far from incontestable if they prevent others from realising public goods they value.28 Just as a right of eminent domain is justifiable to prevent my ownership of a particular piece of land being used to hold up a needed railroad,29 so a right to say, “join or move elsewhere” can be justified if my refusal to contrib­ ute prevents a public good valued by a large majority of my fellows from being realised. A right to a particular place that was so strong as to preclude this response would render the entire scheme of private property potentially suspect. There will be the immediate objection: “But if you do this, the poor will move from Betaville to Alphaville to take advantage of the programme.” The

27 See, e.g., Pauly 1973.

28 See the discussion in Chapter 7.

29 See the discussion in Cooter and Ulen 2012, pp. 174–184, or any of a number of other texts

on law and economics for the standard law and economics arguments for eminent domain. Their arguments of course have their limits, and are frequently abused, most notably in the notorious case of Kelo v City of New London, 545 U.S. 469 (2005). See generally Somin 2016. Nevertheless, it is clearly justified in at least some cases.

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answer may be to make those who have recently moved to Alphaville ineligible. This might encounter Constitutional objections in the United States; I will dis­ cuss them later. The question for now is: do you have a legitimate objection as a non-poor person to having to fund an anti-poverty programme which you per­ sonally oppose, if you have the easy option of moving and avoiding the obliga­ tion? It is difficult to see how your position differs from the person who objects to paying taxes to build a school, or swimming pool. In either case, the reply that you can move to other places that fund fewer or different programmes more to your liking may be an adequate one. This is not the same as the reply I often heard in my youth in opposing the draft and the Vietnam War: if you don’t like it, move to Russia. First, of course, those are not the only two choices, but more to the point, why is my only choice to leave the entire United States if I disagree with its policies? The costs of such a momentous move are very high, and it is simply no defence of those policies to say I can instead incur such enormous costs. Hume pointed out long ago that the “love or it or leave it” argument is equivalent to arguing that a person kidnapped and pressed into service on a ship should be deemed to have consented if he did not jump overboard.30 The costs of moving to a neighbouring city, or perhaps even state, are far less. At least sometimes, it is an acceptable answer to say to someone: these are public goods that we as a community have decided to fund because we want to live in a place where the poor do not suffer too much. There are other places you could live, at acceptable cost, that have made different choices, and you are welcome to live there if you disagree with our choice. But if you stay here, you must pay your share of the cost of maintaining the sort of community we have chosen to live in. Just as I would have no sound objection if my condominium association adopted a project I disagreed with and made me pay my share, I do not see how a small state, with plenty of alternatives to which I could easily move, wrongs me if it funds something with at least significant public good characteris­ tics and asks me to either pay my share or move elsewhere. But this is only an answer for a small state that has plenty of feasible alternatives nearby; it will not do for large nation states.

Local versus national To decide if the above idea works, we need a theory of what services a local government can legitimately provide and fund with taxes. That is not a question that can be answered by abstract moral theory; it instead requires us to ask what rule we should agree on as mutually advantageous. We are likely to want some

30 Hume 1985a.

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local services that can be more efficiently funded by taxes, but we are also likely to find ourselves sometimes paying for things we would prefer not to if such taxes can be imposed by a less than unanimous vote. What rule minimises the sum of these two costs? That is the right rule. But again, the right rule may not be the same for everyone. Some people will prefer few or no such goods, while others will want many. The only solution that makes sense is to say that different locations can have different rules, and people can decide where to live based on the rule they prefer. Of course, if they are sensible that is not going to be the only factor in their decision; they will consider climate, jobs, what the neighbours are like and other questions. But if there are many jurisdictions with many different rules, and free movement between them, it is hard to see how one can object. Of course, I would rather live in a place with my rules, along with perfect climate, great neighbours and my ideal job. But life requires compromise, and it is hard to see how this one is different from others we must live with. For example, some jurisdictions may have a rule that allows a simple majority to vote for a local benefit, which will then be funded by a specified scheme of taxation. This would be similar to what takes place within many condominium associations or other homeowners’ associations, and is unproblematical provided that purchasers are clearly informed of and agree to the rules allowing such funding by majority vote when they buy into that community. Others might prefer a supermajority rule that requires, say, a two-thirds vote. There is no magical answer to what is the right rule; it is simply a matter of differing prefer­ ences for centrally provided services as opposed to having to pay for services you do not want. There is no reason to think the market cannot provide an adequate range of choice on such matters, once people get over the fetish for simple majority rule that some democrats advocate, with no basis in logic at all. What is, however, unacceptable is one rule for the entire United States, under which the majority imposes its will on everyone, and the only alternative is emi­ gration. This is clearly unreasonable with respect to an issue like poverty relief,31 and I submit for most other issues too. What is an adequate range of choice is necessarily always going to be debatable. It seems clear to me that if there are

31 See Pauly 1973. There are some economic arguments that welfare provision should be done at the national level even where many other goods are provided locally. The arguments are well summarised in Wellisch 2000, as well as in Brown and Oates 1987. The essential argu­ ment is that local providers of welfare will underspend because their expenditure will attract poor people to their location, which will confer an external benefit on other locales that will not be internalised. This argument is fairly weak, as it is far from clear that the magnitude of this effect would be substantial, and in any event locales should, for the reasons I argue below, be allowed to limit the ability of outsiders to move to collect more generous benefits. I think these considerations, even if real, totally underestimate the extent of the disagreement between advocates of the welfare state and their opponents. It is not just a matter of differing somewhat over how much to expend; opponents like myself affirmatively believe welfare is harmful to society. Being forced to fund something you believe is a social bad is an enormous imposition on freedom, one that federalism is designed to remedy.

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thousands of choices of local communities, and they differ significantly in the different packages of allegedly public good they provide, you cannot reasonably object to your own community’s package. If there is only one choice for the entire country, “love it or leave it” is simply not an adequate response. We saw in Chapter 6 that a person has political obligations to a government only if he derives sufficient benefit from the compliance of others with laws with which they disagree to offset the costs to him of having to comply with laws with which he disagrees. This condition is unlikely to be met for a sizeable number of people in the case of a large state that allows the majority to impose its will on the minority. If there are many small states, however, people should be able to choose states with laws, and inhabited by people with values, that reflect their own to a much higher degree. They are therefore much more likely to have duties to obey those laws, even when they disagree with a specific one, than will residents of a large, diverse state. Even if an issue has spillover effects that affect areas outside the immediate boundaries of a small state, at some point the loss of freedom in not being able to escape rules with which you fervently disagree outweighs the considerations of cost-benefit internalisation that underlie the spillover criterion for which deci­ sions are properly regarded as local. Internalising externalities is a good thing, both for reasons of justice and for reasons of efficiency, but cost-benefit internal­ isation is not the ultimate end goal: living the lives we want to live is. And cer­ tainly where you are being forced to pay for something you totally object to, like in my case the welfare state, the war on drugs, the Vietnam War in the past and for many people abortion, the loss of freedom is palpable, and completely overrides considerations of spillover effects. There is an unavoidable trade-off therefore between considerations of econ­ omies of scale and cost-benefit internalisation, which may point to larger states, and considerations of freedom, which require small ones.32 Where the line lies exactly cannot be decided in every case by theory but must be a matter of agree­ ment. But it should be an agreement informed by the need to let national minorities be local majorities, and to make as many issues as possible local ones to preserve freedom. It should recognise that modern states are constantly for­ cing us to pay for things we object to, not just because we would rather pay less or because we want to free ride on others, but because we object to it in prin­ ciple. It must be one in which we recognise that there are no right answers, only different answers, and therefore approach the issue as one for agreement and compromise rather than one in which we each have “God on our side.” Certainly, such an agreement would make far fewer issues federal ones than does the current US Constitution. I myself prefer a much more robust form of

32 See, e.g., Alesina and Spolaore 2003. For a good summary of the economic considerations going both ways in the US context, see Donahue 1997 and Shapiro 1995. Both authors are far more inclined to support centralised government than I am, and they frame the economic issues well, but discount too much the costs to freedom of centralised decision-making.

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federalism similar to what exists in Switzerland, although I believe that even the Swiss system is overly centralised.33 The main problem I see for such a solution is caused by the limits that the US Supreme Court has placed on restrictions on the alleged “freedom to travel.”34 For example, in Shapiro v Thompson,35 the Court held uncon­ stitutional a one-year residency requirement for welfare benefits. In Memor­ ial Hospital v Maricopa County,36 the Court struck down a similar requirement for state-provided medical care. In Zobel v Williams,37 the Court struck down on Equal Protection-clause grounds a system for distrib­ uting the proceeds of the Alaska Permanent Fund that varied the amount to which a person was entitled by how long he had lived in Alaska. And in Saenz v Roe,38 the Court struck down a California statute restricting new arrivals to California to the welfare benefits they would have received in their previous state for the first year. This book is not about US Constitutional law, and I will not argue that these decisions misconstrue the US Constitution. Part of the goal of that document was to encourage interstate migration, and especially the restriction in the Zobel case might be thought to “lock in” people to their state of initial residence to an unacceptable extent. But a reasonable constitution should enable a government to provide benefits, including welfare benefits, on the basis of reciprocity, and therefore to restrict benefits to those who have paid in, at least to some extent, to the funding of those benefits. It should not enable people to impose costs, in the form of liability for public support, on people who have not contributed to the social insurance scheme at issue but are relocating solely to collect on the largesse that a particular jurisdiction chooses to provide. Certainly promoting such a concept of reciprocity should not be deemed an illegitimate state purpose.39 In pure form it is no different than the fact the US social security scheme, like the UK scheme and many others, funds retirement benefits based on years of service and past contribu­ tions, and not just on need. But there might well be room for some restric­ tions on such reciprocity requirements to the extent needed to make freedom of movement a genuine right.

33 For good discussions of Swiss federalism, see Linder 2010 and Vatter 2018.

34 In the European Union member states are permitted to restrict access to public assistance

regimes for five years—the European Union recognises the right to free movement of workers but limits significantly the rights of persons to move to another member state to access its welfare system. The United States should, I submit, do likewise, and overrule the decisions discussed below, if necessary by Constitutional amendment. 35 394 U.S. 618 (1969). 36 415 U.S. 250 (1974). 37 457 U.S. 55 (1982). 38 526 U.S. 489 (1999). 39 Although the scheme at issue in Zobel was funded by oil revenues, not contributory taxes, and therefore arguably does not implicate this idea.

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It is worth noting in this connection that in the European Union, welfare provision is almost exclusively a matter for member states. Member states are accordingly permitted for the most part to deny many such benefits to new arrivals for a period of five years, even though freedom of movement is one of the Four Freedoms on which the European Union is based.40 Given the success that the EU model has enjoyed, it hardly seems wrong to suggest that it should be imitated in this area. There is also a clear tension between the need for small states to maximise freedom and the ultimate economy of scale: national defence. In a world of hos­ tile and aggressive states a small state on its own is simply potential prey for larger neighbours. Collective security along the lines of NATO and indeed the United Nations is a partial remedy for this, but only a partial one. As I suggested in the previous chapter, it may well be that only large states like the United States and the Soviet Union could successfully resist an aggressor like Nazi Germany; it is far from clear that the United Kingdom standing alone, even with the help of the Commonwealth, could have resisted Germany long term had Hitler not launched Barbarossa in 1941. As long as there are large states like China and Russia in the present day, the United States may remain the “essential country” to resist them.41 Hayek recognised this tension, and bemoaned the fact that the necessity for large states to provide viable defence against aggression tends to lead to them providing other public goods that are better provided locally: Yet one of the most important conclusions to be derived from our general approach is the desirability of devolving many of these [i.e. collective goods provision] to regional or local authorities. Indeed, much is to be said in favour of limiting the task of whatever is the supreme authority to the essentially limited one of enforcing law and order on all individuals, organizations and sectional government bodies, and leaving all rendering of positive services to smaller governmental organizations. Most of the service functions of govern­ ment could probably be much more effectively performed and controlled if those local authorities have, under a law they could not alter, to compete for residents. It has been the unfortunate necessity of making central government strong for the task of defence against external enemies that has produced the situation in which the laying down of general rules and the rendering of par­ ticular services has been placed into the same hands, with the result that they have become increasingly confused.42

40 See Directive 38/2004/EC, the “Citizens’ Rights Directive,” Article 7. These provisions are complex, but the basic generalisation that free movement is limited to those who can support themselves for the first five years is for the most part valid. See generally Barnard 2019, Chap­ ters 7 and 9. 41 See Morris 2015, Chapter 7. 42 Hayek 2012, p. 403.

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As a historical matter it is clear that the need to have a large state to engage in defence against other large states was absolutely critical to the development of federalism. It was the key argument that Montesquieu offered in The Spirit of the Laws, and was central in the minds of the American founding fathers.43 I myself think this argument can be resisted even in the context of national defence. We may need large states to defend against direct attack, but I think individuals must retain the right to object to wars like the Iraq War or the Viet­ nam War—to refuse not only to fight in them but also to pay taxes to fund them.44 I for one will not surrender my judgement as to which persons to kill to any government. I see no argument that any government is entitled to make me surrender that judgement. Federalism at least partially limits the damage even here. Suppose a number of states refused to participate in the Iraq War, and their citizens withheld their taxes to the extent used to fund it. Indeed, suppose the fed­ eral government was prohibited from taxing at all, and had to get its money from the states. This sounds absurd to an American, yet it is exactly the case in the European Union. Objecting states would have prevented an entity like the EU from fighting a war like Iraq or Vietnam had the EU been so inclined. Thoreau’s Massachusetts would probably have boycotted the Mexi­ can War. Moreover, residents of states that supported the war could move to states that opposed it (and of course vice-versa), and thereby exercise their consciences. I see this as a massive improvement. What if they gave a war and nobody came? Even a theorist much more supportive of centralisation notes that the case for national control of defence may not be as strong as sometimes thought: It is intriguing to speculate on the potential for enlarging the role of the state National Guards—the heirs of what the Framers meant by a “well­ regulated militia.” If America’s defence challenges come to consist of the kinds of limited interventions (as in Bosnia and Haiti) that a smaller national force can handle, and if threats requiring national mobilization will emerge gradually (allowing time for protracted debate that would be required to support the coordinated deployment of state forces), then a defence posture based on a compact national force and a larger, looser collection of state forces could make sense. It also has at least as much philosophical justification as the devolution of economic functions; nothing in today’s America would be harder to explain to the Framers than the maintenance of a large federal army.45

43 See Riker 1964. 44 Thoreau of course saw clearly in Civil Disobedience (1965) that there was no real difference between killing and paying others to kill for you. 45 Donahue 1997, p. 237, n. 5.

214

Federalism on Steroids

The free rider problem provides the natural objection to this suggestion. Ameri­ cans have felt for years that Western Europeans were free riding on the US nuclear umbrella and on the much more expensive US military to enable them to spend far less on defence than they would have needed without that protec­ tion. But that of course did not and could not justify the US in forcing Europe to pay more. Perhaps there is a core amount, based on what would be needed to defend the country itself from direct attack, that people should not be able to avoid by moving to less warlike states, while retaining the right to refuse to contribute to overseas adventures, either with lives or treasure. But at least beyond this amount, which is far less than the current US defence budget, people who disapprove of military spending should not have to pay for it, just as people who disapprove of the welfare state should not have to fund it, and those who despise the war on drugs should be able to opt out of complying with it or funding it. A theory of justice as mutual advantage would require that just about every function apart from national defence, and perhaps some limited infrastructure at the national level needed to make such defence viable, be made a local matter. For example, I do not see how it could justify preventing individual small states from adopting their own currencies, although considerations of efficiency might lead many states to adopt a national currency, similar to the Euro today, as long as doing so were fully optional.46 I am of course aware of the many arguments against currency unions when not accompanied by fiscal unions, but those con­ siderations are something states would have to take account of in deciding what to do, not something that could ground a requirement of a single currency. The other role I see for a national government would be to ensure that states do not violate core fundamental rights of their citizens, although to be consist­ ent with the theory urged here, only negative rights against deprivation by the state, and not positive rights such as many human rights theorists advocate, could be protected. Finally, a national government could make sure that rights of exit were robust, so that small states could not prevent their citizens from being able to vote with their feet, the ability to exercise that right being what ultimately protects the freedom of their citizens. The vision I offer bears some resemblance to the “Framework for Utopia” espoused by Robert Nozick in the final chapter of Anarchy, State and Utopia. That is not an accident: that chapter has been an inspiration for me since the moment I first read it more than forty years ago. Like me, he favoured a libertarian society consisting of many communities, many of which are them­ selves not libertarian. There is no contradiction at all in this: the theory of freedom espoused in Chapter 5 of this book explicitly recognises that an important aspect of freedom consists in living under rules that you yourself endorse, and there is no requirement that these rules themselves be libertarian. What is required is easy exit from such rules if you do not prefer them. My

46 Hayek 1976.

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215

vision differs somewhat from Nozick’s, however, in that I see a role for the state in promoting the ability of such communities to control their member­ ship through devices such as eminent domain and a right to impose restric­ tions and taxes on members by rules agreed to in advance, so long as exit rights are maintained.47 This is the sort of radical decentralisation that I think a theory of justice as mutual advantage, such as the one I defend here, requires. Without it, many citizens of existing states simply have no reason to comply with the laws and pay their taxes, apart of course from the reasons they are given at gunpoint, which are reasons of a sort, but not ones that free persons can willingly accept. Once people realise that they have no such obligation, and I am doing my best in this book to inform them of that fact, they will comply reluctantly, and resist when they can get away with it. The law can rely on punishment and coercion only for a small minority; once disobedience becomes widespread, the law may well be helpless. Federalism on Steroids, by allowing people to choose their laws and their taxes by voting with their feet, which is a genuine choice, as opposed to democratic voting, which is essentially a waste of time, is the only system compatible with genuine freedom. Certainly it is the only circum­ stance in which we can justify employing state coercion to provide allegedly public goods that are in fact not public goods to a significant number of their citizens, but rather public bads.

47 For a somewhat similar vision that has also inspired me, see Kukathas 2007.

11 Conclusion

It might be helpful if I briefly summarise the argument of this book, so that we can see how the various parts fit together. 1. Justice is a set of socially constructed rules, generally arrived at by an evolu­ tionary process similar to languages, which are adopted and maintained because they help us to lead better lives together, both by protecting us against harms by others and facilitating mutually beneficial cooperation. There is no morality or justice that is “out there in the world” apart from what we have agreed, which constrains or limits what we do. We are our own masters. 2. Moral rules, and in particular the parts of morality that tend to be given legal force, which is what we call justice, consist mainly in rules that restrict our freedom to do as we wish in order to protect and enhance the freedoms and welfare of others. They are binding on a person when he benefits more from the compliance of others than he is harmed by having to comply him­ self. Both the cost and the benefit are measured in terms of the agent’s preferences, including his other-regarding preferences as well as his selfregarding preferences. 3. It is in our mutual interest to agree to refrain from violating the sovereignty of others over their bodies, minds and property (the “Sovereignty Prin­ ciple”). Agreements not to harm others physically, and in other specified ways, are usually mutually beneficial and therefore justified. This Principle is the most important general principle of law and justice to be promoted, and indeed complying with it is probably the best single idea that we should preach to our children about what law is for. 4. Departures from the Sovereignty Principle are justified only when they are mutually beneficial (the “Reciprocal Sovereignty Principle”). In general it is not mutually beneficial to be required to benefit others, at least not for some persons, and therefore the Reciprocal Sovereignty Principle does not generally impose affirmative obligations, although individuals will com­ monly enter into mutually beneficial contracts that create such obligations among the parties to them. The willingness to abide by mutually beneficial principles I call the Principle of Cooperation, which is similar to at least the

Conclusion

5.

6.

7.

8.

217

justifiable versions of the Principle of Fairness that others have invoked. But this Principle is able to justify only very limited states and laws. In particular it is completely inconsistent with state-mandated redistribution, or what is commonly known as the welfare state, except very limited provisions as may be justified as cost-effective means of crime control. An account of freedom consistent with the Reciprocal Sovereignty Principle recognises that an important aspect of freedom consists in only being subject to rules that you agree with, because they are mutually beneficial. There is in general no obligation to obey rules that fail to meet this requirement, although for many people there is an obligation to obey rules that are the outcome of a process that is generally mutually beneficial, even if it is not mutually beneficial in some particular instances. Property rights in things that are created by human labour and creativity are generally justified by the Reciprocal Sovereignty Principle. Property rights in land and natural resources are, however, justified under a theory of mutual benefit only if, and to the extent that, everyone has roughly equal rights to the value of those resources, or is compensated for the loss of such equal rights by being afforded other rights to which he would not otherwise be entitled. Being provided with a state education is probably enough to satisfy this requirement, at least in the modern world. Thus those without property in the modern world in general have no legitimate complaint against being required to respect the property rights of others, but there may be a few exceptions. The common law, at least if supplemented by taxes or other redistributive transfers of the value of land and natural resources, is generally consistent with the principles of justice as mutual advantage and therefore justifiable. Most statutory laws, however, consist of rent-seeking transfers and restric­ tions on rights that are not mutually beneficial, but at best benefit some at the expense of others, and in many cases have costs well in excess of their benefits, and are therefore not justifiable. Democracy is justifiable only to the extent it is mutually advantageous, as it rarely is in practice. While it is vital that people are able to sack their rulers without bloodshed, the practice of allowing democracies to alter the rules of the common law and to impose obligations on individuals generally does more harm than good. If it can be justified at all, it is only in the context of small states with robust exit rights. Such states can also be expected to min­ imise the harm from over-extensive provision of putative public goods, which are in fact for many people public bads. Thus although a theory of justice as mutual advantage should in principle recognise the possibility that government can be justified to achieve public goods, our experience with government warrants extreme scepticism about most putative public goods. Achieving such exit rights is a difficult problem in practice, and calls for careful institutional thinking and experimentation.

Although I believe all of the above eight propositions, I am most confident in them the earlier they are in the above list. I am convinced that justice and law

218

Conclusion

are justifiable when, and only when, they are mutually advantageous, and that what I have said about when laws are mutually advantageous is largely correct. I welcome being shown, however, that I am wrong about my conclusions about particular laws or practices, as the arguments on the latter are heavily factual, and to some extent depend on assumptions about what would happen if things were different, which are by their nature contestable. I don’t think what I say is the last word about any area of the law, but I do think the method of analysis I advocate is the only acceptable method for deciding whether and when we have obligations, especially obligations to obey the law, and what those obliga­ tions should be. Why then do we have the Leviathan states we all live in? I believe the problem is ultimately traceable to moral realism, to the false belief that our own values and preferences are binding on others and that we can therefore use the state to impose them on others. While abandoning moral realism does not logically entail the sort of minimal state I advocate, it does remove most of the motiv­ ation for trying to use the law to inflict our preferences on those who do not share them. This is especially true if we recognise that we are under no duty to obey the laws of states that go far beyond the limits of what can be justified on the basis of justice as mutual advantage. We are left instead with a mutually advantageous state, which I believe will be a minimal state. But arguments that a more extensive state is mutually advantageous are fair game, and should be responded to on their merits. As perhaps the wisest of the Ancients, Epicurus, said in paragraph 37 of his Principal Doctrines (quoted in Chapter 1):1 37. Among things that are thought to be just, that which has been wit­ nessed to bring mutual advantage among companions has the nature of justice, whether or not it is the same for everyone. But if someone legislates something whose results are not in accord with what brings mutual advan­ tage among companions, then it does not have the nature of justice. And if what brings advantage according to justice changes, but for some time fits our basic grasp of justice, then for that time it is just, at least to the person who is not confused by empty prattle but instead looks to the facts. If we stop troubling ourselves with empty prattle, look at the facts and abandon the mirage of moral realism, we will see that only small states, and laws limited primarily to the common law of tort, contract and property, can possibly be jus­ tified, at least in the absence of very easy exit. If we need larger states to defend ourselves from other large states, as may be the case for now, we must work to rid ourselves of this burden as quickly as possible, and in the meantime devote ourselves ceaselessly to resisting the encroachments of these larger states on our lives and our freedoms.

1 Epicurus 2008.

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Index

Ackerman, B 132

altruistic punishment 61–62

anarchy 123, 192–93

Aristotle 12, 28, 41, 202

Arneson, R 83, 117–18, 124–27, 136

assurance contract 125, 194, 199, 205, 207

Baier, K 54

basic income 145–48, 202–03

Bastiat, F 58, 188

Becker, L 90–92

Beever, A 152

Bentham, J 4

Berlin, I 94–95

best explanation 30–31, 36, 39

Bicchieri, C 48, 63

Blackburn, S 43

Blackford, R 53

Bramwell, B 157

Brennan, J 163, 171

Buchanan, J 1, 54, 57, 69, 124–25,

195–99 Caligula 38–39

Campbell, E 47

capability approach 94–95, 102–04

capital punishment 47, 165

carbon tax 8, 145–46, 150

Card-Krueger study 180–81

Carter, I 94, 96–98

categorical imperative 32, 46,

57, 118

Chomsky, N 6

Churchill, W 113, 170

Citizens United case 179–80

classical liberalism 4, 7

climate change 8, 199

club good 195, 197, 205

Coase, R 157, 178

coercion 15, 23, 26, 58, 69, 75, 80, 85,

97, 107–12, 118–29, 144, 194–99,

205–06, 215

Cohen, G 131, 134

commodification 162–63 commons, tragedy 58, 85

communitarian 4, 7, 135

company law see corporation competition law 163, 177–80, 191

Condorcet Jury Theorem 171

consequentialism 35, 61, 65–72, 78, 86,

94, 103–08

contract law 5, 67–71, 154, 160–63 convention 6, 9, 17–22, 27, 32, 40, 45–46,

59–64, 76, 111–12, 148, 155

Cooperation, Principle of 63–65, 70, 85,

110–30, 145, 153, 176, 216

Cooter, R 152

copyright 185, 187–88 corporation 176–80, 191

cost-benefit test 79, 91, 114–15, 146, 166,

199, 210

criminal law 5, 81, 83, 113, 154, 163–68,

206–07

Crusoe, R 134–38 Daniels, N 2

Darwall, S 72–74 democracy 51, 67, 125, 168, 170–92,

197, 217

deontology, threshold 71–72 desert 203–04 Designated Hitter Rule 56

deterrence 163–65, 206

discrimination 182–83 distributive justice 109, 130, 145–47, 200

Doing and Allowing, Doctrine of 77–79

242

Index

drug laws 83, 113, 115, 166–67, 210, 214 duels 23, 63 Dworkin, R 38, 40, 66–70, 138, 153 economies of scale 177, 179, 199, 210 education 146, 185, 204, 217 egoism 14, 18, 35, 40, 92, 202 Eisenberg, M 153 Ellickson, R 158 eminent domain 147, 207, 215 employment law 180–84 Epicurus 1, 11–14, 31, 40, 75, 77, 80, 218 epistocracy 171 equality/egalitarian 5, 7, 45, 66–71, 131–45, 170, 183, 203 error theory 28–30, 36, 39–40 Estlund, D 171 European Union 170, 171, 173, 211–13 evolution 2–6, 11–12, 21–25, 31, 34–37, 43, 55, 61, 64, 111, 151, 207 exit right 7–8, 199, 214–15, 217 exploitation 162–63 expressivism 27–28, 46 externality 206, 209–10 Fairness, Principle of 65, 70, 85, 112, 116–20, 123–30, 217 federalism 7–8, 51, 53, 194–215 Feinberg, J 76, 80, 81, 83 female genital cutting 23, 63 fictionalism, moral 42–49 Finkelstein, C 163, 166 Fletcher, G 157 foot binding 23 Frank, R 57 free rider 7, 113, 119–25, 142, 205, 210, 214 French Declaration of Rights 80–81 Friday 134–38 Fried, B 143 Friedman, D 113 Friedman, M 183, 184, 191, 205 Gandhi, M 7 Garner, R 30, 40 Gates, B 159 Gaus, G 61, 107, 126, 173 Gauthier, D 1, 6, 36, 52–57, 80, 88 George, H 5, 140–45, 150, 192 Gibbard, A 27, 136 Glaeser, E 189 Glaucon 10 God 29–31, 34, 39, 42, 48, 74, 81

Goldman, A 38 Greene, J 2, 29, 37, 41–49, 65, 78 Haidt, J 36 Hamlet 17 Hardin, G 58 Harm Principle 41, 45, 50, 74, 75–85, 167 Harman, G 28, 78 Harris, J 134 Hart, H 24, 95 Hayek, F 1, 6, 20–26, 62, 100, 151–54, 168, 176–77, 196, 202 health care 146, 184 Heath, J 45, 59, 62, 63 Hitler, A 113, 192, 212 Hobbes, T 1, 14–16, 18, 50, 75, 82, 96, 160 Hobby Lobby case 179–80 Hodgson, L 101, 107–08 Hohfeld, W 146 Holmes, O 150, 156, 191 homo economicus 3, 125, 194, 202, 206–07 Huemer, M 80, 192 Hume, D 1, 3–6, 16–20, 16–30, 38, 52, 55, 59–60, 73, 88, 111, 139, 160–61, 208 hypothetical contract 52–53, 58, 87, 90 hypothetical imperative 32, 46 income tax 148, 150 insurance 25, 90, 91, 145, 148, 156, 159, 200–05 intellectual property 154, 185–89 Jefferson, T 13, 175 Joyce, R 2, 43–44, 49 Justinian 75, 151 Kagan, S 80 Kaldor-Hicks improvement 116, 121, 147, 156, 177–78, 191 Kant, I 29, 32, 50, 57, 62, 76, 82–87, 92, 94, 100–118, 152–53, 165 Kaplow, L 47 Kelsen, H 24 Klosko, G 115–18, 122–28 Kolodny, N 170 Kramer, M 94, 96–98 land value tax 141–46 Lazari-Radek, K 35, 65

Index left libertarian 5, 142–48 Lenman, J 46 Leoni, B 152, 168 Lester, J 155 Lewis, D 43, 111 libertarian 4, 5, 66, 69, 110, 118, 139, 143, 155, 185, 202, 214 limited liability 176–80, 191 Lincoln, A 41–42 Lindahl, E 145, 195–97 Lippert-Rasmussen, K 79 List, C 108–09 Lochner case 192 Locke, J 1, 53, 81, 104, 112, 131–35, 143 Lockean Proviso 53, 131–35, 143 luck 25, 203 Lucretius 12–13, 90 Mack, E 69, 132 Mackie, J 2, 28, 36, 43, 82, 85–88, 92 Marks, J 41, 42 Marx, K 142, 149 Medina, B 71, 183 Melians 11–13, 34 Melville, H 187 Mercatus Center 174 Mill, J 6, 55, 77, 80–87, 106, 129, 141, 153 minimum wage 163, 175, 180–82 Moehler, M 52, 202 monarchy 14, 16, 170 monopsony 163, 179–81 Montesquieu 213 moral psychology 33–37, 43, 48, 61, 63 moral realism 1–3, 27–50, 53, 65, 71, 76, 87, 146, 163, 200, 202, 218 Muldoon, R 55–56, 147 Murphy, L 69, 196 Murray, C 202 mutual aid 200–01, 205 Nagel, T 4, 25, 68–69, 107, 196 national defence 113, 116, 173, 194, 199, 204, 212–14 natural resources 5, 131–51, 172, 204–05, 217 natural rights 1, 4–6, 40, 81 negative freedom 94–104 negligence 156–58, 169 Nietzsche, F 2, 39, 42, 43, 44 Nizer, L 188

243

Nozick, R 4, 66, 97–98, 116–18, 130–31, 135, 143, 214–15 Nussbaum, M 92, 94, 102 occupational licensure 184–85 Olson, J 30, 36, 43 Orwell, G 113, 149 Otsuka, M 136, 138, 144 Paine, T 145 Pareto improvement 116, 121, 147, 174 patent 185–88 Parfit, D 37 Paulsson, J 54 Peel, R 207 Perls, F 4 Pigouvian taxes 150 Pettit, P 94, 98–100, 103, 105, 108–09, 170 Pinker, S 6 planning see zoning Plato 10, 49 Pogge, T 150 political obligation 51, 82, 110–28, 192, 210 Popper, K 170 Posner, R 153, 175 poverty 145–50, 201–09 Prinz, J 41 Prisoners Dilemma 57–58 private law 51, 151–69 property law 5, 51, 67–71, 154 public choice 4, 126, 191, 194 public good 5, 48, 69, 116–19, 123–26, 145, 148, 173, 186, 192–99, 205–17 public law 152, 154, 168, 176 punishment 14, 47, 48, 62, 75, 164–66, 215 queerness argument 29–30 Railton, P 35 rational choice 53, 62 Rawls, J 1, 2, 50, 52, 55, 60, 65, 107, 124, 157, 202 Raz, J 87, 106 Reciprocal Sovereignty Principle 50–51, 85, 108, 130, 133, 136–38, 146–47, 153, 161, 216–17 reciprocity 69–70, 133, 136, 138, 165, 201, 211 redistribution 25, 140–43, 149, 159–60, 168, 174, 188, 196, 200–12

244

Index

reflective equilibrium 1, 2, 33, 46, 80,

89, 172

Renzo, M 114, 118, 128

rent control 190

republican 94, 98–100, 103–09, 197

rescue, duty to 51, 78–80, 137

retributivism 165

Ridley, M 12

Ripstein, A 50, 83–85, 87, 92, 100–04,

110, 116, 132, 137, 152–3, 155

Risse, M 143

Roberts, A 192

Roman law 75, 151, 155

Rorty, R 47

Rosenberg, A 30, 33

Rousseau, J 1, 115

Ruse, M 36

Sangiovanni, A 69–70 Sartre, J 42–43 Scanlon, T 38, 50

Schmidtz, D 56, 91–92, 125, 135,

194, 201

Schroeder, M 38

Schwarzenegger, A 32

Sen, A 94, 102, 174

Shakespeare, W 17, 187

Shavell, S 47, 153

Sidgwick, H 35, 49

Simmons, J 110–18, 128

Singer, P 34–35, 49, 65

single tax 140–45, 204

Skinner, Q 94, 99–102 slavery 8, 27–30, 41–42, 76, 90, 98

Smith, A 21, 34, 60

social contract 1, 2, 17, 51–55, 76,

87, 163

social justice 25, 68

social norm 22, 25, 47–50, 55–65, 73–80,

87, 92, 147, 151–60, 164–67, 187, 191

Sovereignty Principle 50, 74, 75–93,

130–32, 136, 139, 150, 161, 167, 216

Spencer, H 132, 192

spillover 199, 210

statute 75, 151, 154, 168, 170, 175–76,

180, 185, 191, 217

Steiner, H 94, 96, 101–02, 143

Strawson, P 72–74

Street, S 2, 31, 35, 38

strict liability 156–59

Sugden, R 1, 51, 54, 60–64

Sutton, W 150, 195

Switzerland 115, 211

Tadros, V 102

Tao Te Ching 9

Taylor, C 4, 96

Thomson, J 72, 76, 133

Thoreau, H 113, 193, 213

Thucydides 10–11 Tiebout, C 196, 198–99 Tilly, C 192

tort law 5, 67–71, 75, 79, 152–60, 168–69,

177, 218

Trump, D 171, 195

Tullock, G 124–26 Tyler, T 48

Ulen, T 152

unfair dismissal 182

utilitarian 8, 29, 35, 47, 50, 65–72, 82,

123, 156, 165, 177

Valentini, L 109–09

Vallentyne, P 140, 143–44

victimless crimes 113, 115, 154, 166–67

Voltaire 42

Vulnerable, the 88–92

Waldron, J 87, 106, 134

Walmart 181

Weinrib, E 152–53

welfare state 8, 112, 200–210, 214, 217

Wellman, C 115–17

Wicksell, K 69, 195

Williams, B 38, 40, 66, 72, 128

Wilson, E 36

Wittgenstein, L 29

Woods, T 67–71, 148

workhouse 206

Zamir, E 71, 183

zoning 189–90