Law Economics And Morality.pdf

Law, Economics, and Morality This page intentionally left blank Law, Economics, and Morality eyal zamir • barak medina 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2010 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. _____________________________________________ Library of Congress Cataloging-in-Publication Data Zamir, Eyal. Law, economics, and morality / Eyal Zamir, Barak Medina. p. cm. Includes bibliographical references and index. ISBN 978-0-19-537216-8 ((hardback) : alk. paper) 1. Law and economics. 2. Law–Philosophy. 3. Law–Economic aspects. 4. Economics–Moral and ethical aspects. 5. Law–Moral and ethical aspects. I. Medina, Barak. II. Title. K487.E3Z36 2010 340′.11—dc22 2009042476 _____________________________________________ 1 2 3 4 5 6 7 8 9 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com Contents Acknowledgments xi Introduction 1 part one Theory 9 1. The Consequentialist Nature of Economic Analysis 11 A. General 11 B. Normative Economics 11 C. Consequentialism and Its Critique 18 D. Responses to the Lack-of-Constraints Critique 21 1. Long-Term and Indirect Effects 22 2. Rule-Consequentialism 24 3. “Preferences for Constraints” 27 4. Feelings of Virtue and Remorse 29 5. An Improved Theory of the Good: Ideal Preferences 30 6. Summary 32 E. Responses to the Demandingness Objection 33 F. Conclusion 40 2. Threshold Deontology and Its Critique 41 A. Deontology 41 B. Critique of Deontology in General 49 C. Critique of Threshold Deontology 51 D. Concluding Remarks 56 3. Private and Public Morality 57 A. General 57 B. The Private/Public Distinction 58 C. Doing and Allowing 60 v vi contents D. Intending and Foreseeing 63 E. Acting and Enacting 70 F. Concluding Remarks 76 4. Constructing Threshold Functions 79 A. Introductory Remarks 79 B. General Structure of a Threshold Function 84 C. Relevant Types of Benefits and Costs 86 D. Shape and Size of the Threshold 93 E. Other Concerns 96 F. Threshold Options 98 G. Concluding Remarks 103 5. Addressing Possible Objections 105 A. Undermining the Normative Neutrality of Economic Analysis 105 B. Quantification and Monetization Difficulties 108 1. General 108 2. Anti-Commodification 111 3. Incomparability 112 4. Incommensurability 113 C. Setting Constraints Too Low 116 D. Incompatibility with the Expressive Role of Law 117 E. Conclusion 122 part two Applications 125 6. The Fight Against Terrorism 127 A. Introduction 127 B. Economic Analysis of the Fight Against Terrorism 128 C. The Constraint Against Harming Persons and the Fight Against Terrorism 135 1. General Considerations 135 2. Harming Aggressors as a Constraint Infringement 136 D. Constrained Economic Analysis of Intended Harm 140 1. General 140 2. Goals of Anti-Terrorist Measures: Preemption, Retribution, Deterrence, and Pressure 140 3. Basic Elements of the Threshold Function 145 Constructing the Threshold Function 169 3. Measures Involving Both Intended and Unintended Harm 174 G. Victims’ Moral Responsibility and Nationality 171 F. Conclusion 175 7. The Constraint Against Suppressing Free Speech 189 E.contents vii 4. Killing Persons Who are Doomed 170 4. Freedom of Speech 177 A. General 166 2. General 177 B. Constrained Cost-Benefit Analysis 195 1. Doctrinal Background 178 C. Constrained Economic Analysis of Unintended Harm 166 1. The Threshold 150 (a) General 150 (b) Probability of the Terrorist Attack 151 (c) The Aggressor’s Culpability 160 (d) Summary 160 6. The Regulation’s Net Benefit 195 (a) General 195 (b) Chronologically Remote Harms 196 (c) Low-Probability Harms 199 (d) Small Harms 201 (e) Harms Brought About Through Rational Persuasion 202 (f) Offensiveness 206 (g) Combining Excluders 210 2. The Threshold 211 (a) General 211 (b) The Threshold’s Shape 211 (c) Different Thresholds for Different Bases of Regulation 213 . The Net Benefit 147 (a) The Relevant Variables 147 (b) Marginal Net Benefit and Alternative Courses of Action 149 5. Torture 161 E. Cost-Benefit Analysis of Free Speech and Its Critique 184 D. Standard Normative Economic Analysis 234 E. Integrating Threshold Constraints with Economic Analysis 251 F. A Brief Doctrinal Background 267 2. A Brief Doctrinal Background 292 2. Current Legal Norms 228 C. Conclusion 255 9. Moral Constraints and Redistributive Goals 246 3. Antidiscrimination Law 225 A. Standard Economic Analysis 294 3. Introduction 225 B. Introduction 257 B. The Pertinent Constraints: An Overview 260 2. Integrating Deontological Constraints with Economic Analysis 240 1. Conclusion 224 8. Motivations for Discrimination 231 D. Economic Analysis of Contract Law 258 C. The Economic Response and Its Critique 262 D.viii contents (d) Different Thresholds for Different Categories of Speech 218 (e) Summary 221 3. The Constraint Against Discrimination and Its Incidence 240 2. Deontological Constraints and Contract Law 260 1. Deontology and Deception 274 4. Choosing Among Permissible Courses of Action 222 F. Remedies for Breach of Contract 292 1. Contract Law 257 A. Deontology: Promises. Standard Economic Analysis 269 3. Constrained Economic Analysis of Mistake and Misrepresentation 267 1. and Contractual Obligations 298 . Harms. Constrained Economic Analysis 277 (a) Integrating Constraints 277 (b) Integrating Options 289 E. Challenges Facing Constrained Economic Analysis of Remedy Rules 305 F. Conclusion 347 Conclusion 349 Index 353 . Possible Objections 327 3. The Compatibility of Efficiency and Paternalism 318 2. Size of the Threshold 339 3. Marginal Net Benefit and Alternative Measures 346 E. Conclusion 310 10. Incorporating Deontological Constraints 335 1. General 313 B. Legal Paternalism 313 A. A Simple Model 332 D. Deontological Perspectives on Paternalism 335 2. Paternalism: Classifications and Prevalence 315 C. Deontological Features of Contract Remedy Rules 301 5. Relevant Types of Benefits and Costs 342 4. Normative Economic Analysis of Paternalism 318 1.contents ix 4. This page intentionally left blank . We thank Yoel Ben-Or and Netta Corren for outstanding research assistance and Efrat Hakak for her excellent editing. Hanoch Dagan. David Weisburd. Ariel Porat. Mordechai Kremnitzer. Tel Aviv University. 96 California Law Review 323 (2008). and Richard Zerbe for their invaluable suggestions and comments on earlier versions of parts of this book. 2009). Finally. Guy Davidov. ideas that have previously been published in our joint article Law. Itzhak Kugler. Samantha Brennan. Fruitful correspondence with Shelly Kagan and numerous enlightening discussions with David Enoch are particularly appreciated. Re’em Segev. Haifa University. xi . Ram Rivlin. in revised form. Yuval Shany. and the 2007 Annual Conference of the European Association of Law and Economics for their helpful comments. 84 Virginia Law Review 229 (1998). Meir Dan-Cohen. and Economics: Integrating Moral Constraints with Economic Analysis of Law. Miriam Gur- Arye. The book was written in part during Eyal Zamir’s stay at the NYU School of Law (2005/06) and Georgetown University Law Center (2008. Doron Teichman. We also wish to thank the participants in seminars and workshops held at the Georgetown University Law Center. This book incorporates. Yuval Procaccia. the Hebrew University of Jerusalem. Ronit Donyets-Kedar. and during Barak Medina’s stay at Columbia Law School (2006/07). Ruth Gavison. David Kretzmer. Eric Posner. Roy Kreitner. Morality. David Enoch. we thank these institutions for their hospitality. and in Eyal Zamir’s article The Efficiency of Paternalism. Kent Greenawalt. Alon Harel. we gratefully acknowledge the generous financial support we received from the Milton and Miriam Handler Foundation.Acknowledgments we are most grateful to Shmuel Becher. Daphna LewinsohnZamir. This page intentionally left blank . thus rationalizing decision-making. 1037. 2. Legal Stud. in Blackwell’s Guide to the Philosophy of Law and Legal Theory 191. 29 J. esp. 1037 (2000). On Justifying Cost-Benefit Analysis. at 197–201 (Martin P. It assists analysts and policy-makers in identifying false intuitions and cognitive biases. the criteria of economic efficiency tend to ignore fundamental ethical norms such as the inherent immorality of deliberately harming other people. See infra pp. even avid supporters of economic analysis can hardly deny the fundamental normative flaws that exist in standard economic analysis. See. Cognition and Cost-Benefit Analysis. Certain acts are inherently wrong and therefore impermissible. Kornhauser. and what is the exact relationship between rights and constraints.1 The very act of economic modeling compels one to determine the crucial variables pertinent to any issue. 1153. The central constraint is against harming other people. 29 J. This book mostly discusses deontological constraints rather than (moral or legal) rights. Theories of Rights.4 Additional 1. means.3 The pursuit of good consequences is subject to constraints. Legal Stud. 29 J.Introduction economic analysis has transformed legal theory. 1059 (2000). and outcomes in a systematic and sophisticated way. incentives. 1154 (2000). and Comment on Conference Papers. Cass R.. Posner. Shelly Kagan. makes it normatively unacceptable for many philosophers and lawyers. On this complex issue. e. even as a means to furthering the overall good. Justification. Edmundson eds. namely its denial of the intrinsic value of any factor other than the goodness of outcomes.. 3. 41–48. Lewis A. 4. see generally Alon Harel. Golding & William A. Even its detractors can hardly deny the enormous contribution made by economic methodology to legal thinking in practically every field of law. Cost-Benefit Analysis: Definition. Richard A. Normative 1 . 2005). The consequentialist nature of economic analysis. it is not the only morally relevant factor. Cost-benefit analysis (CBA) forces one to consider the interrelations between goals. Sunstein.g. Deontological moral theories maintain that although the goodness of outcomes counts. At the same time. thus avoiding the questions of what are rights.2 In particular. Legal Stud. A constraint may be overridden for the sake of furthering good outcomes or avoiding bad ones if enough good (or bad) is at stake. See. see Judith Jarvis Thomson. even if no constraint infringement is involved. outside of the economic model.” and use the term “infringement” to cover both.2 law. 46 and 98–103. 431–34 (2001). at 78–80. in Rights. moderate deontology would justify breaking a promise only to avoid very considerable losses (an absolutist would object to killing or breaking a promise under any circumstances).. we denote morally impermissible infringements of a constraint as “violations. Currently prevailing deontological theories are moderate rather than absolutist. See infra pp. Some Ruminations on Rights.” describe permissible infringements as those that “override a constraint” or “meet the threshold. 78. See Judith Jarvis Thomson. and Risk: Essays in Moral Theory 49. to Nous 420. 48. They admit that constraints have thresholds.6 Moderate deontology conforms to prevailing moral intuitions (“commonsense morality”). Supp. 41.8 Therefore. 11 Phil. Kraus. supra note 4. Jody S. Following Thomson’s terminology. 1986). policy-makers and legal academics should better ignore nonefficiency considerations or. . consider them separately. along with the possibilities of considering deontological considerations separately from CBA or by a different governmental branch. Similarly. For an account of moral rights that is closely related to deontological constraints. People are sometimes allowed to refrain from maximizing the good. At least under some circumstances. while consequentialism at least presumably approves of the deliberate killing of one innocent person to save the lives of two.5 Thus. e. or the welfare of their family. 7. at most. 51–52 (William Parent ed. it arguably lacks the methodological rigor and determinacy characteristic of economic analysis. the argument goes. while consequentialism supports the breaking of a promise whenever it would produce slightly more net benefit than keeping one’s word. The Realm of Rights (1990). Matthew Adler and Eric Posner mention the possibility of a “superprocedure” through which both deontological and welfarist Ethics 170–77. Reconciling Autonomy and Efficiency in Contract Law: The Vertical Integration Strategy. economics. 8. See infra pp. over the overall good. Deontology differs from consequentialism not only in holding that there are constraints to attaining the best outcomes but also in recognizing options. perhaps hundreds or thousands. moderate deontology may justify such killing only for the sake of saving many more people. people may legitimately prefer their own welfare. 6.g. friends. or community.. Restitution. and morality constraints prohibit such conduct as lying and breaking promises. Kagan. Issues. 5. For instance.7 At the same time. introduction 3 considerations would be considered together. It argues that such incorporation would improve economic analysis of law and economic analysis in general. Clearly. at 1157 (arguing that attempts to improve “the normative flavor” of CBA “by modifying or even rejecting the Kaldor-Hicks assumption gain less in normative plausibility than they lose in complication and uncertainty”). Yet we maintain that it is superior to its alternatives. It also improves deontology by making the analysis of threshold constraints more precise and its policy implications potentially more determinate. It addresses the challenges facing the formulation of threshold functions and illustrates the construction and use of threshold functions to analyze several prominent legal issues. they write: “We suppose that that is a theoretical possibility—but we have absolutely no idea what the superprocedure would consist in. without considerably compromising its methodological rigor.10 This book thus develops a detailed framework for incorporating threshold constraints (and options) into CBA. Regarding this possibility. with economic analysis of law. New Foundations of Cost-Benefit Analysis 154–58 (2006). Matthew D. Kraus seeks to reconcile autonomy-based theories of contract law. . infra pp. For the deontologist. our proposal operationalizes deontology through its combination with economic methodology. it maintains that deontologists and jurists who oppose consequentialism have been too hasty in disqualifying economic analysis as a fruitful analytical methodology. Adler & Eric A. whose normative foundations are deficient. through “vertical integration.” While Kraus’s proposal leaves the fine-grained analysis of contract doctrine to standard economic analysis. which lack in determinacy and operationality. Kraus. Cf. See also Posner. when talking about scholarly analysis of law. 10. 105–08. not only as a normative theory but also as a descriptive and predictive tool. direct and explicit incorporation of deontological constraints into economic models is vital to make the analysis normatively acceptable.”9 Can the normative flaws of standard economic analysis be rectified without relinquishing its methodological advantages? Can deontological moral constraints and options be formalized so as to make their analysis more rigorous? This book examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints (and options) into economic CBA. supra note 2. 9.to rule-consequentialism. an institutional separation between economic and deontological analysis is implausible. It rectifies some of the normative flaws of conventional CBA without significantly compromising its methodological rigor. supra note 8. Less obviously. Posner. such as the move from act. Deontologically constrained CBA is more complex than standard CBA. most of the consequentialist responses to the deontological critique. At the same time. since people’s behavior is commonly influenced by social norms and prevailing moral intuitions. Dorff & Kimberly Kessler Ferzan. e. and 213–14. Many legal norms fall in line with moderate deontology. however.4 law. any theory seeking to explain and predict people’s behavior should take threshold constraints and options into consideration. Deontology and Economics. 688 (1998). It establishes the need for integrating deontological 11.J. Reinhard Zimmermann. Zak ed. statutes infringing upon “fundamental” rights are invalid unless the infringement is necessary to promote a compelling governmental interest. lays the theoretical groundwork. & Phil.11 The same is true when explaining existing legal doctrines. The Moral Dimension: Toward a New Economics (1988). 269 (1992).. Law Reviews: A Foray through a Strange World.g. 139 U. Sanford Levinson & J.. 1597. 87 Cornell L. 1653 (1991).. Pa. and other Performing Arts. 659. John Broome. and morality actually recognize or at least imply that sound CBA should incorporate constraints for practical or instrumental reasons. Rev. and between economic analysis and deontological morality. The book is divided into two parts. Law.13 The project is modest. Balkin. The proposed framework can enable one to more adequately grasp the pertinent issues and their interrelations. for we do not claim that by using the proposed analytical framework. Our project is both ambitious and modest. see.g. 8 Econ. On the fragmentation of current legal scholarship. 181. Cf. L. the first five chapters. economics.12 Thus. Is There a Method to the Madness? Why Creative and Counterintuitive Proposals Are Counterproductive. Reconstructing Law. See. 47 Emory L. Walter J. . in Theoretical Foundations of Law and Economics 21 (Mark D. The Moral Conditions of Economic Efficiency (2001) (arguing that moral normative constraints are essential to facilitating a competitive market). It is ambitious in the sense that it proposes a general framework for analyzing and resolving a great variety of legal and policy issues. 682. Schultz. under current constitutional law. 76–77. Music. infra pp. 2008). Michael B. For instance. Furthermore. e. threshold constraints are essential to understanding and explaining existing legal doctrines. It also ambitiously strives to bridge the increasing gulf between economic analysis and other approaches to law and legal policy. Moral Markets: The Critical Role of Values in the Economy (Paul J. Deconstructing Debate. 2009). 13. White ed. which may in turn facilitate sounder solutions. Rev. Part One. one can avoid difficult normative judgments.M. 12. Amitai Etzioni. Jerry Mashaw. A consequentialist who embraces one of these responses may thus welcome our proposal without converting to deontology. 682 (2002).. and between intending to do harm and merely foreseeing it. This chapter analyzes the main critiques leveled against deontology in general and moderate deontology in particular. Moderate deontology holds that constraints (and options) have thresholds. They imply that agents and policy-makers should only strive to attain the overall best outcomes subject to constraints and that agents sometimes have options not to attain the best outcomes. as it is conventionally portrayed. In prohibiting the infliction of harm on other people. Chapter 1 presents welfare economics and its consequentialist nature. Deontological theories prioritize values such as autonomy. and regulators (and for academic policy-analysts). and an option not to promote the good may be overridden for the sake of attaining enough good or avoiding enough bad. its critique. A constraint may be overridden for the sake of furthering good outcomes or avoiding bad ones if enough good (or bad) is at stake. between constraints and options. It critically examines various attempts at defending consequentialism in general. against this critique. human dignity. and keeping one’s promises over the promotion of good outcomes. It claims that this argument confuses.introduction 5 constraints (and options) with CBA.” It then analyzes the deontological critique of consequentialism and specifically consequentialism’s lack of constraints on attaining the best outcomes. and responds to plausible critiques of such integration. consequentialism is the appropriate moral theory for legal policy-makers such as legislators. among other things. It ultimately rejects the alleged dichotomy between personal and public morality. deny. they resort to distinctions such as that between actively doing harm and merely allowing it. While recognizing the challenges faced by threshold deontology. It first discusses the main features of positive and normative economic analysis and the meaning of “consequentialism. The responses that come closest to actually addressing the critique do so by endorsing deontological constraints (and options) on the factoral level. or circumvent the deontological critique are doomed to failure. judges. Chapter 2 discusses moderate (or threshold) deontology. and between the actor’s perspective and the perspective of an external reviewer. and possible responses. At the same time. . explains how such integration may be accomplished. Chapter 3 addresses the argument that even if moderate deontology is the correct moral theory for individuals. It concludes that all of the attempts to downplay. threshold deontology suffers from a lack of methodological rigor and precision. and welfare economics in particular. we conclude that threshold constraints (and options) are an indispensable part of any acceptable factoral moral theory. It outlines the scope of this proposal by describing the role of threshold functions within a broader context that may involve conflicting constraints and require a choice between several deontologically permissible acts. Part Two of the book illustrates the implementation of deontologically constrained CBA in five legal contexts. as well as the types of costs and benefits that are taken into account in determining whether the act’s (or rule’s) net benefit meets the threshold. It then delineates the general structure of threshold functions. threshold functions set the magnitude and shape of the threshold. It then demonstrates how a constrained CBA of the pertinent issues might look. These include the . and morality Chapter 4 discusses various substantive and methodological choices involved in formalizing deontological constraints and options. Chapter 5 tackles a number of methodological and principled objections to the incorporation of deontological constraints into economic analysis. We argue that standard economic analysis fails to take into account critical distinctions. that monetizing deontological constraints faces insurmountable obstacles. and none is conclusive. It discusses the claims that such incorporation would adversely affect the normative neutrality of economic analysis. The bulk of this chapter discusses threshold functions that should be employed to determine the permissibility of such measures as targeted killings and torture. economics. Chapter 6 presents a constrained CBA of measures taken in the fight against terrorism.6 law. Each chapter in this part critically discusses standard normative economic analysis of a socially important legal field or part of it. Like standard economic analysis of law. This chapter also briefly discusses the construction of threshold functions for deontological options. We conclude that most of these objections are unpersuasive. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of a threshold function. paying heed to extant legal norms and pertinent moral considerations. that it would lead to setting too low thresholds for constraints. We discuss the factors affecting the evaluation of the act’s relevant net benefit and those determining the amount of net benefit required to justify an infringement. To capture the essence of deontological constraints. It begins by characterizing and criticizing existing normative economic analysis of the fight on terror as reflecting a simplified ad hoc balancing. and that it is incompatible with the expressivist role of the law. while others suffice with verbal presentation. It then presents the central deontological constraints pertaining to the fight on terror. some of the illustrations use mathematical functions to present the pertinent variables and constants. and different thresholds for different categories of speech. the setting of different thresholds for content-based and for content-neutral regulation. Chapter 7 discusses freedom of speech. small harms. It briefly describes current constitutional protection of this freedom and surveys its standard economic analysis. and demonstrate how current legal norms are best understood as resting on moderate deontology and embodying threshold constraints. harms brought about through rational persuasion. These efforts correspond to the various attempts at defending consequentialism against the deontological critique discussed in chapter 1. The chapter then analyzes the threshold that has to be met to justify speech regulation. Following a brief survey of current legal norms. It then introduces the deontological constraint against curtailing free speech and analyzes in some detail the normative judgments involved in conducting a constrained CBA of speech regulation. various types of harms. such as chronologically-remote and low-probability harms. Ordinarily. is shown to be methodologically workable and normatively superior. and mere offensiveness. the legitimacy and appropriate scope of antidiscrimination legislation. Chapter 9 discusses contract law. Various ways of formalizing such excluders and combining them are examined. and preemption).introduction 7 distinction between different goals of anti-terrorist measures (including retribution. It then examines the efforts made to justify antidiscrimination legislation on standard efficiency grounds. Rather. which incorporates all of these distinctions. market transactions do not involve infringements of deontological constraints. more specifically. For this reason (and since they usually involve money or easily monetized goods). standard CBA . it relies on positive economic analysis to explain possible motivations for discrimination. Chapter 8 examines discrimination in the marketplace and. and the distinction between intended and unintended harm. examine the relationships between this constraint and distributive bases for antidiscrimination legislation. As to calculating the benefit of speech regulation—which is tantamount to calculating the speech’s expected harm—it examines the desirability of excluding. including its shape. Deontologically constrained CBA. deterrence. We analyze the deontological constraint against discrimination. or radically discounting. It argues that these efforts are unsuccessful. the difference between harms the state inflicts through anti-terrorist measures and those resulting from unthwarted terrorist attacks. the appropriate way to adequately capture the issues pertaining to market discrimination is to directly take into account a deontological constraint against harming people by discriminating against them. and morality is particularly apt for analyzing contract law. we maintain that certain deontological constraints apply to contracting behavior and that combining deontological constraints with economic analysis of contract law may be fruitful. the consequentialist nature of standard welfare economics—namely the absence of constraints on promoting good outcomes—opens the door to limiting people’s freedom with a view to promoting their own good. . We construct formal models to evaluate the desirability of paternalistic legal norms from both economic and moderate deontological perspectives. Adding deontological constraints to the analysis better captures the pertinent issues and provides more accurate yardsticks with which to evaluate paternalistic legal norms and explain existing ones. economics. Economists ordinarily object to paternalism. they base their antipaternalistic stance on various secondary considerations. In fact. It first argues that contrary to prevailing notions. it highlights the differences between economic and deontological analyses of contract performance and breach and discusses the difficulties facing integration of deontological constraints with the economic analysis of contract remedies. Nevertheless. given the current state of the pertinent theories. chapter 10 analyzes legal paternalism in its various manifestations. but rather than pointing to the intrinsic value of freedom. Finally. It then demonstrates how deontological constraints may be integrated with economic analysis of the contracting stage. Last. focusing on the doctrines of mistake and misrepresentation. The chapter briefly surveys the deontological constraints pertinent to contract law and critically examines the standard economic response to them. thus missing the real dilemmas inherent in paternalism. normative economics does not entail principled antipaternalism.8 law. • part one Theory . This page intentionally left blank . Cognitive rationality (also known as thin rationality) entails that each person’s set of preferences conforms to formal requirements. These include the assumption of rationality. in some detail. and that people make their decisions based upon all available relevant information. General this chapter sets out the motivation for incorporating deontological con- straints into economic analysis of law.• one The Consequentialist Nature of Economic Analysis • A.” This assumption includes both cognitive elements and motivational ones. such as transitivity and completeness. most of them imply that adding constraints (and sometimes options) to economic analysis is warranted. the basic tenets of welfare economics. and that in fact. which assumes that people act “rationally. section C describes consequentialism and its main critiques. Focusing on the last feature. and section E surveys the responses to the objection that consequentialism demands too much (lacks options). These include the lack of constraints on maximizing good outcomes and the lack of options not to maximize the good. It first introduces. Normative Economics Economics is conventionally divided into positive and normative fields. the attempts to defend consequentialism against the claim that it allows too much (lacks constraints). the normative branch of economic analysis. preference satisfaction as the underlying theory of human welfare. Section D discusses. a limited regard for distributive issues. We conclude that none of the responses to the deontological critique of consequentialism are satisfactory. • B. and the consequentialist nature of welfare economics. and 11 . in section B. the correct use of the rules of probability. the exclusion of all irrelevant information. Positive economic analysis explains and predicts human behavior—and social outcomes—on the basis of rational choice theory. policies. searches for welfare propositions that do not rest on direct. even when they conflict with a person’s self-interest and sympathetic preferences). Sen. Green & Shapiro. 6 Phil.. More specifically. normative economics is a welfarist theory. Sour Grapes: Studies in the Subversion of Rationality 1–15 (1983). See. it attributes equal weight to the welfare of every person. solely according to their outcomes. rules. according to which people’s well-being is enhanced to the extent that their desires are fulfilled.3 A central debate within normative economics has revolved around measures of welfare. Economic Analysis and Moral Philosophy 51–65 (1996). Some economic models. On the normative foundations and main characteristics of welfare economics. e. assume unlimited capacity to gather and process information. 19 (1994). The so-called “old-style” welfare economics—associated with Pigou’s 1920 book Economics of Welfare 4—was based on a rather vague notion of welfare. 3. One can distinguish between three main schools of thought within this approach.. e. in contrast. Like utilitarianism. See. 1932).g. Green & Ian Shapiro. Daniel M. economics. . It excludes both true altruism (actions aimed solely at furthering the well-being of others) and idealism or commitment (actions undertaken out of a sense of duty. as it evaluates the desirability of acts. The Economics of Welfare (1920. Hausman & Michael S.. Aff. Donald P.g. Pathologies of Rational Choice Theory: A Critique of Applications in Political Science 14–17.2 Normative (or welfare) economics—which is the focus of our study—is a consequentialist theory. all of which are based on a preference-satisfaction theory of welfare. id. The “new” welfare economics. McPherson. see generally Hausman & McPherson. It contends that the only factor which ultimately determines the desirability of anything is its effect on individuals’ welfare. 317 (1977). & Pub. Amartya K. especially those relating to the behavior of firms. etc. supra note 2. 1929. revised 1924. or wellbeing. Arthur Pigou. projects. 2.1 Motivational rationality (or thick rationality) further assumes that each person aims to maximize her own well-being. interpersonal comparisons of utility. and morality so forth. It did not take sides in the debate among utilitarian thinkers regarding the proper notion of utility that should be aggregated. The theory of the good underlying normative economic analysis is preference satisfaction. It focuses on incentives for future behavior. 1. happiness. Rational Fools: A Critique of the Behavioral Foundations of Economic Theory.12 law. Jon Elster. 4. Definitions of thin rationality vary with regard to the elements they include in the list. and all others are either indifferent between the two states or prefer A to B.. The first theorem states that under certain conditions. 1211 (1991). Samuelson. any competitive equilibrium satisfies the conditions for a Pareto optimum. Econ.the consequentialist nature of economic analysis 13 The first school. The more traditional approach uses a social welfare function (SWF) (also known as a Bergson-Samuelson welfare function). Foundations of Economic Analysis (1947). there are some people who are worse off compared to another state. or welfare. Feldman & Roberto Serrano. z2 . The second theorem states that under other specific conditions. where zi’s and f represent society’s ethical values. Why Welfare Depends on Fairness: A Reply to Kaplow and Shavell. Thus.. Michael B. i. zn). Although in principle. Paul A. Depending on its 5. . Rev. Abram Bergson. but only a description of the order in which the individual ranks different alternatives.5 Applying only the Pareto criterion and the two theorems of welfare economics. economists have focused on SWF’s in which the arguments in the welfare function are utility indexes of each individual. See. 6... 52 Q. 7.7 The SWF is written as follows: W = f (z1. 858–59 (2002). L. . un). 100 Yale L. A Reformulation of Certain Aspects of Welfare Economics. Guido Calabresi.e. 75 S. e. According to this approach. Welfare Economics and Social Choice Theory 51–75 (2006). Cal.6 This weakness spawned two different schools of thought within the “new” welfare economics... According to the Pareto principle. 314 (1938). economists are handicapped in providing policy recommendations. state A is socially preferable (or Pareto superior) to state B if at least one person prefers A to B. . The SWF thus assigns a value to each possible distribution of individual utilities in society. any variable related to a society’s well-being might be included in the SWF. identified with the Pareto Principle. such that W is a numerical representation of the social welfare in a given state of the world.. W = f (u1. 847.g. Dorff. J. an individual i ’s preferences are described by a utility function ui.. such that ui(A) > ui(B) if and only if the individual i prefers A to B. any Pareto optimum can be obtained as a competitive equilibrium after the agents’ initial endowments have been modified by suitable lump-sum transfers. State A is a Pareto optimum if there is no other possible state that is socially preferable to A in the above sense. and thus no policy is Pareto superior to any other. Allan M. This principle is the basis of the two fundamental theorems of welfare economics. happiness. avoids interpersonal comparisons altogether. the utility function is not a direct measure of well-being. In practically every state. The Pointlessness of Pareto: Carrying Coase Further. u2.J. Blair & Robert A. W = min(u1. however large. interpersonally comparable utility functions would not be needed for SWF. Richard A. economics. while stopping short of utilitarianism.8 The aim was that cardinal. Econ. we get a Rawlsian “maximin” function. and to have this hold true independently of the initial utility levels. i =1 n 9. . Theory 186 (1979). Kemp & Yew-Kwang Ng. This principle asserts that a state A is socially preferable to state B if those who prefer A to B gain. that is. See. On the Existence of Social Welfare Functions: Social Orderings and Social Decision Functions. the function is a sum of the logarithms of the utility indexes. Arrow. Posner. which base their proof on Kenneth J. Social Choice and Individual Values (1951. when there are three or more discrete options to choose from. Public Choice III 563–68 (2003). 44 Economica 81 (1977). and nondictatorship. consider the function W = (∑ ui 1− p )1− p where p is an inequality index. e. Frontiers of Legal Theory 95–141 (2001).. 11. Thus. more than those who prefer B to A lose. SWF in i =1 n 1 which p = 0 represents a utilitarian aggregation.. e. See Murray C. . it follows from Arrow’s Impossibility Theorem that SWF must be based on cardinal rather than ordinal utility functions. W = ∑ lnui .11 In accordance with the assumption that people’s preferences are 8. this solution is utterly unacceptable. it is impossible to formulate a social preference ordering that satisfies a certain set of reasonable criteria such as transitivity. u2 . a social change that does not meet the Pareto criterion should still be carried out if it is possible for the gainers from the change to compensate the losers and remain better off.9 The only way to get a single outcome from a SWF whose arguments are ordinal utility indicators is to define it lexically. See.g. For instance... rev.10 The alternative to this approach is the one identified with the Compensation Principle (also known as Kaldor-Hicks or Potential Pareto). and morality form. Douglas H. 10. Mueller. however. 43 Economica 59 (1976).. It is an attempt to go beyond the Pareto Principle. by measuring welfare in monetary terms rather than by happiness or well-being. and interpersonal comparability is required. however small.14 law.g. in monetary terms. to state that society prefers any increase in a certain person’s utility. As p approaches infinity. to any increase in another person’s utility. Reaffirming the Existence of “Reasonable” Bergson-Samuelson Social Welfare Functions. un). 21 J. independence of irrelevant alternatives. From a normative perspective. the social welfare function will embody different normative judgments about distribution. Pollak. ed. 1963). However. Paul A. When p=1. Samuelson. from being in A rather than B. According to Arrow’s Theorem. See also Dennis C. Collective Rationality and Dictatorship: The Scope of the Arrow Theorem. The social decision should be based on an aggregation of all persons’ CV’s. at 9–24. Legal Stud. To begin with. Preferences are therefore measured by people’s willingness to pay (WTP) for their satisfaction. id. Justification. and CBA. B to A. Sunstein. L. People often err as to what is good for them. Q. Adler & Eric A. Cost-Benefit Analysis: Definition. Boardman et al. 1153. Willingness to Accept: Legal and Economic Implications. process information. They make choices on the basis of partial information. 13. The term “cost-benefit analysis” has various meanings on different levels of generality (Richard A. Lives. policy. Sunstein. Life-Years. the very reliance on people’s preference satisfaction as the yardstick for human welfare is problematic. Posner. frame their decision tasks. or project according to its effect on the total welfare of all people. 59 (1993). Each of these features of economic analysis is subject to criticism. The Cost-Benefit State (2002). It may refer to a particular decision procedure used by regulatory agencies (see generally Cass R. For a closer look at the differences between well-being maximization. they prefer A to B. 29 J. Matthew D.the consequentialist nature of economic analysis 15 complete (for any two alternative combinations of goods. and faulty reasoning. Spitzer. or anything else (A and B). New Foundations of Cost-Benefit Analysis (2006)). and Willingness to Pay. see Adler & Posner. which assumes that each person’s CV (or her WTP) is an adequate representation of the difference in the person’s utility as between the status quo and a given alternative state. While there is a considerable variance in the ways people perceive facts. In this book. and make choices. each person’s gain or loss from a shift from state A to state B is measured by a compensating variation (CV): the subtraction (in case of a gain) or the addition (in case of a loss) that is required to each person’s budget in the original state A. Cost-Benefit Analysis: Concepts and Practice (1996). U. or are indifferent). psychological biases.12 In more technical terms. L. the Kaldor-Hicks criterion and CBA thus ordinarily assess the desirability of any act. and Comment on Conference Papers. or more generally to the normative criterion of Kaldor-Hicks efficiency. we use CBA in the latter meaning. the Kaldor-Hicks criterion. the deviations from the standard assumptions of cognitive and motivational 12.. Cass R. A myriad of empirical and experimental studies have demonstrated that people’s preferences and choices significantly deviate from the standard assumptions of rational choice theory. . to ensure that he will be indifferent between the two states. 71 Wash. rule. See Anthony E. Posner. it is assumed that every person can compare any entitlement to a sum of money. services. 205 (2004). 1153–56 (2000)). 104 Colum.13 Like utilitarianism. Rev. Elizabeth Hoffman & Matthew L. This view is the basis of the procedure known as Cost-Benefit Analysis (CBA). Willingness to Pay vs. See also infra pp. at 129–30. Amartya Sen. e.. 319–20. . L. 17. 96–98 (Douglas Seanor & N.g. Adler & Posner. Utility.. at 418–31. See. Rational Choice. e. people whose economic or health conditions are very poor may have limited aspirations—so limited that even their fulfillment will not necessarily make their lives much better. 169. Louis Kaplow & Steven Shavell. and so forth. 1988).. the theory of the good underlying economic analysis may be criticized for denying the intrinsic value of anything but human 14. 16. sadistic and prejudiced preferences. Problems with Act-Utilitarianism and with Malevolent Preferences. i.J. Phil.18 More fundamentally. Choices. 62 Econometrica 1291 (1994).. Values. L. In fact. and morality rationality are rather systematic. Other analysts oppose this idea. 82 J. 326.15 In recent years. people’s preferences are sometimes objectionable. Well-Being. A Liberal Theory of Social Welfare: Fairness. Other analysts go one step further and also examine the motivational rationality of people. racism. infra pp. Finally. Investigating Generalizations of Expected Utility Theory Using Experimental Data. e. and Frames (Daniel Kahneman & Amos Tversky eds. 2000).g. for instance.. They are willing to discount or disregard not only choices based on misinformation or cognitive biases but also choices based on. 50 Stan.. taking into account preferences that satisfy such conditions as transitivity. See. agencies engaging in CBA already screen preferences in this way. 84 Va. and that it is preferable to adhere to this assumption rather than encumber the analysis by making more realistic assumptions. Harsanyi. 15. John D. Kaplow & Shavell.16 This endorsement usually refers only to cognitive rationality. completeness.g.g. 179–96 (2000). and the Law. Richard Posner..e. 18. See. reflecting jealousy. Agency and Freedom: Dewey Lectures 1984. even if actual preferences do not.16 law. economics. sadism. 246–51 (1998). and the Pareto Principle. See Eyal Zamir. in Hare and Critics: Essays on Moral Thinking 89. the standard assumption of mainstream economic models—that people behave rationally—sometimes leads to conclusions based on rational (rather than actual) preferences. 229. Chang. See.14 Moreover.17 Many economists insist. Behavioral Economics. at 129–30. e. however. and dominance. In fact. 110 Yale L. Hey & Chris Orme. Fotion eds. that the assumption of economic rationality approximates human behavior well enough. Fairness Versus Welfare 410–13 (2002) (maintaining that it is only the satisfaction of rational preferences that enhances wellbeing). 191 (1985). 173. Howard F. See generally Robin Hogarth. See Adler & Posner. John C. supra note 13. The Efficiency of Paternalism. the mounting evidence of people’s bounded rationality has led some economists to endorse rational preference not merely as a proxy for actual ones but as a superior measure of well-being. 1987). R. 1551 (1998). Rev. 323–25. supra note 13. supra note 16. Judgement and Choice (2d ed. 98 J. David Degrazia. Econ. notwithstanding the greater happiness or satisfaction she would derive from the entitlement. A distinctive advantage of economic analysis’s use of WTP as a measure of human well-being is the facilitation of mathematical economic models and formalization of normative issues. the WTP criterion has been criticized for systematically favoring the rich. 25. Jack Knetsch & Richard Thaler. supra note 12. 169 (1994). Is Wealth a Value?.24 The regressive effect of monetization of preferences through WTP is connected to a much more fundamental critique of the Kaldor-Hicks criterion. Ronald W. namely its disregard for distributive concerns. Pol. e. 23. 2071. 191 (1980). 945–48 (2000). such treatment misses their intrinsic importance. & Phil.. Donald Hubin. Hoffman & Spitzer. Amartya Sen. incomplete. To begin with. L. the assumption that everything a person might desire is commensurable with money is controversial. WTA is also much more susceptible to manipulations. See. however. Normative Ethics 54–59.. 22.19 Its disregard for such notions as desert and fairness is likewise objectionable. See. 1336 (1990) (suggesting that individuals habitually misstate WTA as greater than WTP because in many contexts they are rewarded for this misstatement). 9 J. 2127 (1996). 931. The Moral Justification of Benefit/Cost Analysis. on the satisfaction of human preferences—but arguably. the minimum amount of money that one would accept to forgo any entitlement.23 This response is. 113–16. measuring welfare in monetary terms raises several concerns. 24. Taking Animals Seriously 36–74 (1996). Legal Stud.J. 29 J. However. Thomas F. Experimental Tests of the Endowment Effect and the Coase Theorem. 10 Econ. Legal Stud.g.g. 21. See. Daniel Kahneman. 84 Geo. See generally Shelly Kagan. 20. e. at 85–87. See generally infra pp.21 Even if the principled objection of incommensurability is rejected. including the natural environment and the well-being of animals. 309 (1998).. Dworkin.22 This problem may be mitigated by shifting from WTP to WTA (Willingness to Accept).g. Legal Pragmatism and the Law and Economics Movement. KaldorHicks efficiency only measures total welfare. e. 1325. The Discipline of Cost-Benefit Analysis. A person who desperately needs money is likely to be willing to forgo an entitlement for a lower sum of money than a wealthy person. .25 In its basic form.the consequentialist nature of economic analysis 17 welfare. that is. This is because the sum of money one is willing to pay for any entitlement depends on one’s wealth. Cotter. attributing no intrinsic value to 19.20 Economic analysis may consider such nonwelfare values and notions instrumentally through their effect on human welfare. 108–10. and distribution will be addressed inasmuch as they relate to the main discussion.26 But this is a mere means to maximize total welfare. Alberto F. 108–16. Preferences for Redistribution IZA Discussion Paper No.. however. 28. See.. Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health 13–14 (2008). Richard L. See infra pp. This book. and possible responses to the critique. On the Use of Distributional Weights in Social Cost-Benefit Analysis. in A Companion to Ethics 230 (Peter Singer ed.28 • C.g. Income Distribution.18 law. s87 (1978). Alesina & Paola Giuliano. Consequentialism and Its Critique “Consequentialism” has a variety of meanings. the reminder of this chapter focuses on consequentialism. 86 J. Political Econ. however. supra note 20. 2d ed. Revesz & Michael Livermore. Many economic analyses deviate from this characteristic of CBA by taking into account distributive concerns and incorporating them into predictive and normative economic models. committed to any specific 26. for example. 27. The Kaldor-Hicks criterion may favor redistribution of resources as a means to maximize aggregate social welfare due to the rule of decreasing marginal utility..29 This definition excludes.com/ abstract=1369802. ethical egoism—the view that an act is right if and only if it leads to the best outcomes for the actor. 1991). monetization. Arnold C. Kagan. Philip Pettit. respectively. See. 29.g. 1994). On this conventional meaning of the term and on other definitions. Layard & A. . In this book. Consequentialism. It often refers to a normative theory which asserts that the only factor that ultimately determines the morality of an act or a rule (or anything else) is its consequences. Hence. and 246–51. 192–97 (Richard Layard & Stephen Glaister eds. 313–47.27 Each and every feature of standard economic analysis merits detailed discussion. we will use the term in a narrower sense to denote those theories that take into account the well-being of every person. e. 9 (Samuel Scheffler ed. in Cost-Benefit Analysis 179. in Consequentialism and Its Critics 1. at 59–64. concentrates on the consequentialist aspect of welfare economics. including the assumption of rationality. economics. Available at http://ssrn. Additional critique is leveled against the manner in which CBA has been used in recent decades by regulatory agencies in the United States. Introduction. and it does not refer to distribution of welfare as such. Other features of economic analysis. see generally Samuel Scheffler. Walters.. 4056.. It is not. e. 1988).A. and morality its distribution among people. R. its critique. Harberger. 33. Rules. 93–107 (1973). motivations.32 This book focuses on one consequentialist theory. culpability. Thomas Nagel.33 30. On complex theories of the good and consequentialism. 31. thus legitimizing and even requiring harming people. rules. see also infra pp.the consequentialist nature of economic analysis 19 theory concerning the goodness of outcomes in general or human well-being in particular. in J. Derek Parfit. Scanlon.30 They also vary in the importance they attribute (if at all) to the distribution of well-being among members of society and to the well-being of future generations. eds. Consequentialism in general. While sharing these common features. and knowledge). including welfare economics. First. 6 Phil. See generally Morality. 32. consider the satisfaction of people’s actual or ideal preferences as decisive. Shelly Kagan. See.M. 308–09. Bernard Williams. meaningful social relations..). See generally Kagan. The View from Nowhere 175–88 (1986). Consequentialism imposes no restrictions on attaining the best outcomes. Well-Being: Its Meaning. A Critique of Utilitarianism.g.31 Consequentialist theories also differ regarding the appropriate focal point of analysis (actions. Some versions of consequentialism. and more precisely. namely normative economics. What We Owe to Each Other 108–43 (1998). and normative economics in particular. incorporate any of these notions). Kagan. such as utilitarianism. . 2000). and Consequences: A Critical Reader (Brad Hooker et al. at 48–59. virtues. e. Utilitarianism and normative economics are the most famous consequentialist theories. see generally James Griffin. Reasons and Persons 493–502 (1984). The Structure of Normative Ethics. Smart & Bernard Williams. 30–32. 236–42 (1992).C. T. supra note 20. on the consequentialist character of normative economics. supra note 20. other theories. Utilitarianism—For and Against. posit that human well-being consists of enjoying positive mental states and avoiding negative ones. at 25–69. Measurement. The first critique claims that consequentialism allows too much. and desert (normative economics does not. On different theories of the good. consequentialist theories vary in many respects. and Moral Importance (1986). in principle.. and breaking promises to achieve desirable results.J. etc. lying. have been the subject of two major critiques aimed at the absence of restrictions on pursuing the overall good and at the requirement to prefer the overall good over one’s own interests. and others contend that well-being consists of attaining certain objectively defined elements (such as good health. Perspectives 223. they differ with regard to the underlying theory of the good and particularly of human well-being. The underlying theory of the good may or may not incorporate notions of equality. and so forth. See generally Samuel Scheffler. including nations). the deontologist calls attention to the fact that consequentialism focuses on outcomes while deontology 34. to promoting the well-being of the disadvantaged people around the world. that we torture the baby of a terrorist to force him to reveal information that may save lives. and community.. and thus promoting the good (e. . and morality Consequentialism does not recognize the moral rights of people over their body. special obligations created by promises and agreements. and freedom of speech). Nagel. such as autonomy and freedom. The Demands of Consequentialism (2001). in Incommensurability. economics.35 The second critique is that consequentialism demands too much. See infra pp.36 In arguing that consequentialism both allows too much (lacks constraints) and demands too much (lacks options). labor. 949. 952 (2004) (making this observation regarding conceptions of justice characterized by “unrestricted impartialism”).. 41 San Diego L. Rev. Thus. the rights to life and bodily integrity. maximizing aggregate social welfare) should be subject to constraints. and Practical Reason 35.34 Thus. Deontological constraints usually include restrictions on violating fundamental rights (e. 36. human dignity. take precedence over the attainment of best results.20 law. It also conflicts with one’s obligations toward family. and restrictions on lies and betrayal. This requirement of impartiality arguably conflicts with human nature and with the conception of people as separate entities. According to the deontological critique. consequentialism arguably requires that we harvest the organs of one person to save the lives of two other people. supra note 33. friends. some values. 35. It does not allow for agent-relative options. 1997). Larry Alexander. It also requires self-sacrifice when the expected benefit to another person (who may be as well-off as the agent) is only slightly larger than the cost to the agent. The Jurisdiction of Justice: Two Conceptions of Political Morality. Incomparability. 40–48 (Ruth Chang ed.. James Griffin. and talents. Incommensurability: What’s the Problem?.g. Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought 1–130 (2001) (discussing people’s “associative duties” and special responsibilities to their families and the social groups they belong to. 41–48.g. at 164–75. consequentialism arguably requires the well-off to contribute almost all of their money and dedicate a large portion of their time and energy. rather than further one’s own personal goals and interests or the interests of her loved ones or her community. Consequentialism presumably requires everyone to do what would maximize overall good outcomes. Tim Mulgan. David Dolinko. murders. U. Responses to the Lack-of-Constraints Critique Some analysts (including some economic analysts of law) are not overly concerned about the counterintuitive or even morally repugnant conclusions of unconstrained consequentialism. The Perils of Welfare Economics. • D. See. and even sadistic preferences. e. Williams.g. L. To avoid such 37. xenophobic.38 Generally. supra note 33. Harsanyi.. 351.the consequentialist nature of economic analysis 21 focuses on the morality of actions. they are your stock in trade”).39 The next section critically analyzes attempts to defend consequentialism against the critique that it allows too much. Book Review of Fairness Versus Welfare.g. 356–62 (2002). 259 (2006) (“Counter-intuitive results aren’t so bad if you are a consequentialist. Rev. between intending harm and merely foreseeing it (or the related distinction between harming a person as a side effect of aiding other people and using a person as a means to aiding others). At least theoretically (and most probably not only theoretically). between harming for the sake of avoiding comparable harm befalling others and harming for the sake of increasing others’ well-being. 40.40 but most are. these features of any consequentialist theory resting on actual preferences theory of well-being may lead to justifying “efficient” rapes.. 41–46. 39. and their willingness to pay for satisfying their preferences directly depends on their affluence. see infra pp. 38. at 105.37 In the context of constraints. See. 97 Nw. People sometimes have prejudiced. See infra pp. Dorff & Kimberly Kessler Ferzan. 30–32. for example. the concern that consequentialism justifies terrible deeds is exacerbated when the theory of the good underlying a consequentialist normative theory is actual preference satisfaction and even more so if preferences are measured by people’s willingness to pay for their satisfaction. For a qualification of this statement. 9 Ethical Theory & Moral Prac. there is. e. 249. in . and even genocide. Consequentialism is not directly interested in the way a particular outcome has been brought about. Samantha Brennan. a prevailing notion that there is a substantial difference between doing harm and merely allowing it. by Louis Kaplow & Steven Shavell. Moral Lumps. at 96. supra note 17. Is There a Method to the Madness? Why Creative and Counterintuitive Proposals Are Counterproductive. and the subsequent section will analyze attempts to answer the critique that it demands too much. Michael B. a consequentialist may argue that killing one person in order to use her organs to save the lives of three other individuals is only seemingly desirable. . economics. such a general scheme may even create an incentive for people to become moderately sick. Such a fear might have a detrimental effect on the overall health of the population. (4) taking into account people’s feelings of virtue when they act according to commonsense morality and feelings of remorse when they do not. and (5) replacing actual preferences with ideal preferences as the underlying theory of the good. in the long run. efficient. Theoretical Foundations of Law and Economics 21. Long-Term and Indirect Effects A common strategy of consequentialists is to demonstrate that the counterintuitive conclusions attributed to consequentialism rest on flawed analysis that disregards or underestimates relevant outcomes. in fact. 2009) (discussing legal economists’ suggestions to legalize baby-selling. If the victim were to be selected from among hospitalized patients. (3) including “preferences” for deontological constraints within the preferences whose fulfillment constitutes people’s welfare. in fact. A fuller analysis— so the argument goes—reveals that seemingly efficient arrangements that violate deontological constraints are not. consequentialists resort to various responses. such a scheme might dramatically reduce people’s incentive to look after their own health. efficient. deter people from being hospitalized lest their organs be harvested against their will. assuming that sick people may not be suitable organ donors.. due to long-term and indirect effects.22 law. seemingly efficient arrangements that violate deontological constraints are not. We shall argue that none of these responses successfully addresses the deontological critique of consequentialism.to rule-consequentialism. Should physicians be allowed to choose the victim from the entire population. and are thus unjustified on purely consequentialist grounds. White ed. and morality counterintuitive or abhorrent conclusions. this may result in arbitrariness and cause general anxiety. racial discrimination. This section briefly discusses five such responses: (1) demonstrating that. 21–26 (Mark D. In fact. For example. Even if one could guarantee that the choice of the victim would be random and fair. 1. and insider trading. (2) moving from act. and noting that the “startling quality” of these suggestions may be their “primary virtue” from a “careerist perspective”). such a practice would. Goodin.J. 44. a thorough and sophisticated analysis of an act’s total consequences (direct and indirect. in Utilitarianism—For and Against. 33 Stan. this general program may.L. e. cause more deaths.. 387. supra note 20. ordinary morality is simply wrong. . While at first glance this may appear efficient. 27. Robert E.” (Posner. 398–400 (1981) (demonstrating how incorporation of indirect and remote effects (“externalities run wild”) may result in CBA reaching any desirable conclusion). The Survival Lottery.S. 46–48.g.J. 52 Philosophy 218 (1977). Cost-Benefit Analysis of Entitlement Problems: A Critique..” See John Harris. at 1155). Sprigge. Smart. . This rough outline of one example suffices to demonstrate how a consequentialist may respond to at least part of the deontological critique. ed. Hare. 50 Philosophy 81 (1975). The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions 83 (rev. Goodin. A less dramatic example is the forced. at 69–71. Cf. McCloskey.43 As for the remaining cases.J. . Utility and the Survival Lottery. Williams. the consequentialist may claim that they are very rare44 and may insist that in these cases. 46. 43. as opposed to an absolutist one. of allowing such transfers and the alternative of forcing the rich person to transact with the poor person. 8 Inquiry 264 (1965). see infra pp. at 100. Utilitarianism as a Public Philosophy 6 (1995). an economist may argue that it is not so “when one considers the incentive effects .45 The claim that a sophisticated analysis of the total set of consequences leads to conclusions that are akin to moderate deontology is more convincing in some contexts than in others. supra note 33.42 A consequentialist may claim that in the majority of cases. 8 Inquiry 249. See. Ethical Theory and Utilitarianism. 42. the hypotheses about possible effects that consequentialists often invoke in this debate are “so implausible that [they] would scarcely pass if it were not being used to deliver the respectable moral answer. The example follows Harris and Singer’s exchange on the “survival lottery. McCloskey. McCloskey. 1994). Robert E. 1982). supra note 13. As Bernard Williams has noted. 45.C. A Non-Utilitarian Approach to Punishment. Rev.the consequentialist nature of economic analysis 23 Rather than prolonging people’s life span and enhancing their quality of life. 66 Phil. R. 466. 468–69 (1957). uncompensated transfer of property from its owner to a person who values it more highly.M. Rev. 30. A Utilitarian Reply to Dr. Samuel Scheffler. 33 (Amartya Sen & Bernard Williams eds. For an account of moderate (or threshold) deontology. Political Theory and Public Policy 8–12 (1982). 31. An Examination of Restricted Utilitarianism. An Outline of a System of Utilitarian Ethics. Peter Singer. T. J. L. See H. in fact. 255–56 (1965). in Utilitarianism and Beyond 23. H.”46 It is not at all clear 41. supra note 33. certain and probable) would lead to conclusions similar to those of moderate deontology. at 76–77.41 Another well-known example is the framing and executing of an innocent person to prevent serious riots in which hundreds of people will be killed. Duncan Kennedy. Kagan. 76 J. 49. at 111. A different strategy is to move from act. Harsanyi.. As mentioned above (supra note 32 and accompanying text). in Utilitarianism and Beyond. the deontologist would insist that our deeply held moral intuitions are much stronger than what consequentialist analysis indicates. 56–60. acts and rules are not the only focal points available to moral theories. supra note 44. in Morality. Utilitarianism and Welfarism. & Pub. While character traits and motives are clearly less appropriate objects of economic analysis and legal policy-making. Morality and the Theory of Rational Behaviour. Rule-Consequentialism The strategy we have just discussed for defending consequentialism does not transcend act-consequentialism. even in cases where long-term effects are likely to lead to a conclusion similar to that of threshold deontology. A Theory of the Good and the Right (1979). at 134. Richard B. and morality that the cases in which consequentialism leads to horrifying conclusions are rare. For a critique of the claim that consequentialism (or utilitarianism) is problematic only in very rare cases. Rights and Agency. See Scheffler. 11 Phil.to rule-consequentialism. 14 (1982). Judith Jarvis Thomson. 295–96 (1989). Rules.11 (1990). it may still be advisable to adopt an absolute. this subsection’s observations on rule-consequentialism are at least partially applicable to other versions of consequentialism. at 181.. Consequentialism may also refrain from choosing any single primary focal point and instead have a comprehensive structure taking into account all focal points at the same time. n. at 39. including institution-consequentialism.47 And even if these cases are rare. we may generate a set of rules that is not very different from commonsense morality. and Consequences. supra note 36.49 By changing the focal point of a consequentialist theory from acts to rules. Shelly Kagan. a moral theory that endorses abhorrent deeds even in rare cases is flawed. Rev. 280. or almost absolute. Phil. Finally. . at 71. 48.50 47. prohibition against killing people.g. Such a rule may bring about overall better results even if in some particular cases it may result in suboptimal outcomes. e. The Realm of Rights 142–43. economics. Chang. Evaluative Focal Points. Aff. 50. e.g. L. Brandt.48 2. supra note 17.24 law. Even if killing one person to save the lives of two may bring about overall good results. 23 Isr. See Amartya Sen. supra note 44. See also Michael S. Moore. See. see Amartya Sen. John C. 463. 464–67 (1979) (advocating a comprehensive structure). See. supra note 32. Goodin. especially if consequentialism rests on preference satisfaction as its theory of the good. Torture and the Balance of Evils. Adopting other focal points such as motives may also narrow the gulf between consequentialism and ordinary morality. 3. For this theory. the command should not be. supra note 32.the consequentialist nature of economic analysis 25 As stipulated thus far. Smart. the critical normative theory should be act-utilitarianism. 53. Rules. 1967). see Hare. Assuming universal compliance with the rule. While intuitive morality resembles moderate deontology (based on foundational utilitarianism). 52. however. it faces considerable difficulties whenever the degree of actual compliance with the rules it advocates 51. etc. and critical morality. and Consequences.C.. in-depth deliberation.J. & Policy 92 (1984). this argument is hardly persuasive. the set of rules that would maximize human well-being may be tantamount to threshold deontology (and possibly even to absolutist deontology). Extreme and Restricted Utilitarianism. Ideal Code. See Tim Mulgan. unrealistic assumption of universal compliance with more realistic assumptions. Ruling out Rule Consequentialism.”51 Some of the critiques of rule-consequentialism. In fact. Inter alia. self-serving biases. under the assumption of universal compliance. A somewhat different strategy is to distinguish between intuitive morality. that realistic ruleconsequentialism is unproblematic. Real World (2000). Allan Gibbard. See Brad Hooker. may arguably be answered if rule-consequentialism is not conceived of as an indirect-actconsequentialism but rather as the moral code whose general internalization would produce the best outcomes. “Thou shalt not kill. . 54. applying to extraordinary conditions and requiring thorough. A realistic theory strives to formulate the best set of rules given that some people will not understand. See J.54 This is not to say.” but rather “Thou shalt not kill unless—all things considered—killing would enhance overall human welfare. A realistic normative theory takes into account people’s cognitive limitations. Phil. the only appropriate rule is “Do whatever maximizes the best results. or obey the rules (or simply will not have the time and energy necessary to conduct a comprehensive cost-benefit analysis of every action or inaction). particularly its alleged collapse into act-consequentialism. rule-consequentialism collapses into act-consequentialism. 1 Soc. is still subject to some of the traditional critiques of rule-consequentialism and raises difficulties of its own. supra note 44.” Put differently. for example. accept.52 This version. in Theories of Ethics 171 (Philippa Foot ed. in Morality. however.53 The move to rule-consequentialism is more compelling if one replaces the ideal. Utilitarianism and Human Rights. at 212. Under such assumptions. applying to daily actions and decisions that must be taken without much deliberation. . and the Courts 40–41 (2007) (arguing that the attempt to base threshold deontology on secondorder consequentialist arguments is unsuccessful. In any event. L. at 187–93. In fact. a factoral theory neither explains nor justifies the relevance of the various factors and their interaction. Kagan. supra note 16. Brennan. we follow Shelly Kagan’s taxonomy. Rev. The distinction between factoral and foundational theories will be used throughout the book and thus merits some clarification. 1165. 381–402. Rachlinksi. even a rule-consequentialist would not avoid conclusions that clearly contradict with ordinary morality. Such factors may include the costs and benefits of an act. supra note 40. In and of itself. supra note 20.58 A factoral moral theory defines the factors that determine the morality of an act. See also id. See Jeffrey J. either downward or upward.55 While the move to rule-consequentialism—coupled with realistic assumptions about people’s behavior—reasonably answers the deontological critique in some instances. In this regard. On the contrary—the more sophisticated versions of rule-consequentialism are more acceptable precisely because they strive to explain and justify the role of deontological constraints on the factoral level.g. Liberty. at 79–81. at 224–36. even if rule-consequentialism of some sort were a valid foundational moral theory. since rule consequentialism treats constraints merely as a means to achieving overall best outcomes. Posner & Adrian Vermeule. 56. economics. Kaplow & Shavell. an avid consequentialist would not aspire to set rules that correspond to ordinary morality but would rather aim to free herself from its constraints.56 In such cases. institutional arrangements and procedural safeguards may dramatically reduce the risks of miscalculation and bias that serve to instrumentally justify constraints. 1214–19 (2003) (describing how organizational settings can balance and correct mistakes that individuals might make). . 57. it would not imply that CBA should not include deontological constraints. See generally Kagan. See. Interestingly. at 223–35. e. Cf. The Uncertain Psychological Case for Paternalism. and the relationships between the actor and the people affected by the act.. as it rests on “muted institutional and empirical claims that are unpersuasive and amplified”). at 259.26 law. 97 Nw. Terror in the Balance: Security. and interaction. This is the role of foundational theories. supra note 49. Often. e. supra note 32. at 137–44.57 Generally. See. their relative weight.g. Eric A. and morality deviates from the degree of compliance initially assumed. U. Kagan. it is unsatisfactory in others. there is no necessary match between the kind of theory one 55. whether it involves harming other people. there is no guarantee that it would endorse a factoral moral theory that is identical to any form of moderate deontology. 58. In fact.. Dorff & Ferzan. in Theoretical Foundations of Law and Economics. 2003) (explaining that. 1111–12 (1972). 61. 3. Richard O. 85 Harv. Guido Calabresi & A.59 Inasmuch as rule-consequentialism endorses deontological constraints on the factoral level. 63. Liability Rules.62 Notably. Zerbe Jr. The argument is straightforward: welfare economics strives to maximize the overall satisfaction of people’s preferences without passing judgment on their content or distinguishing between different objects of preferences. Stephen Darwall. then these preferences should count in CBA.g. Louis Kaplow and Steven Shavell have popularized this argument in the legal literature. the reluctant acknowledgment of the relevance of people’s preferences regarding “fairness” or “justice” seems little more than lip service. “Preferences for Constraints” A third response to the anticonsequentialist critique is available only to consequentialist theories—such as welfare economics—whose underlying theory of the good is preference satisfaction. 62. since under the definition he uses. it determines whether an act is right by whether the act maximizes good consequences. See Kaplow & Shavell. supra note 16. Agent-Centered Restrictions From the Inside Out. in Deontology 112. if people have preferences for “fairness. . Practices. As we have just seen.the consequentialist nature of economic analysis 27 adopts on the factoral level and the theory one favors on the foundational level. economists mostly ignore these preferences altogether or attempt to explain them away. foundational consequentialism may endorse threshold constraints on the factoral level. 60. and only if. Mark Tunick.” rule-utilitarianism would count as a deontological theory). Rev. Cf. Economic Efficiency in Law and Economics (2001).63 Zerbe defines moral sentiments as other-regarding preferences that people are willing to 59. particularly but not exclusively those interested in the economics of environmental protection. CBA should take deontological constraints into account as well. 135 n. supra note 40. L. take such preferences more seriously and make space for them in their positive and normative analyses.61 Others. and the Moral Point of View: Limits of Economic Interpretation of Law. supra note 40. and Inalienability: One View of the Cathedral. at 29–31.. Property Rules. Richard Zerbe has proposed a modified version of the Kaldor-Hicks criterion in which moral sentiments play an important role. See. 1089. e.” including a preference for prohibitions against harming others. Thus. at 431–36. Douglas Melamed.. at 80–82. Efficiency.1 (Stephen Darwall ed. Cf. “a theory is consequentialist if.60 For some economists. supra note 17. 32 J. including contingent valuation methods (CV or CVM) based on public polls. whether for ecological values or for moral norms. 303. 67. Jeremy Waldron. Rethinking Cost-Benefit Analysis. Ronald Dworkin. On CVM. The Principles of Practical CostBenefit Analysis 148–67 (1978) (discussing techniques of inferring individual’s valuations of unmarketed goods). 277.. Adler & Eric A. 66. Brown eds. Locating Distribution. Champ. 1112–13 (2000).28 law. 109 Yale L. Posner. Preference. A Primer on Nonmarket Valuation (Patricia A. Posner. a judgment regarding the morality of a rule (or an act). Kornhauser. the “taste for fairness” or “preferences for constraints” argument is methodologically problematic and conceptually unsound. Rev.. economics.65 Such methods may in principle be used to elicit information about people’s attitudes to human rights and morality in general. Matthew D. see generally Using Surveys to Value Public Goods: The Contingent Valuation Method (Robert Cameron Mitchell & Richard T. As several scholars have pointed out. Zerbe. at 24–25. pooling together self-interested preferences and judgments (as well as other disinterested. and Morality in Social Decisions. L. Legal Stud. Conceptually. or rule. other-regarding preferences) also gives rise to the concern of “double counting. namely the rule’s (or act’s) effect on the well-being of the person making the judgment.67 Arguably.”68 Rather than giving equal weight to the 64. 1105. The soundness of a judgment depends on the validity of the arguments underlying it. 165. Chi.64 To measure the “existence value” or “non-use” value of things such as environmental protection and wildlife conservation. . 243 (1999). 68. act. Legal Stud. Adler & Eric A. Lewis A. Methodologically. Implementing Cost-Benefit Analysis When Preferences are Distorted. Kevin J. 65. 29 J. 910–14 (2000). economists have developed various techniques. Externalities and Other Parasites (Book Review). quantify. Individuals have the final say on the content of their preferences. 316–22 (2003). 895. Don Herzog. and morality pay for their satisfaction even when they are not directly affected by the relevant project. Legal Stud. must not be confused with one such factor. Chang. 32 J. supra note 66. Such sentiments include preferences regarding the fairness and efficiency of rules and the ethical value attached to actions. Cf. it is difficult to ascertain. Matthew D. Boyle & Thomas C. 2003). Carson eds.66 There is a fundamental difference between preferences and normative judgments. not on the number of its supporters or the intensity of their support. Adler & Posner. at 1125–28. Taking Rights Seriously 234–37. See generally Robert Sugden & Alan Williams. id.J. Well-Being. 1989). 275–77 (1977). and aggregate people’s disinterested preferences. 67 U. based on all relevant factors. 292 (2003) (describing the notion of taste for fairness as “disreputable maneuver”). while judgments may be right or wrong. at 183–94. if enough people object to consequentialism. as Steven Shavell notes. For the argument that taking external preferences into account is potentially selfdefeating. Risk & Uncertainty 17 (1993). it is not clear that he intends this argument to serve as a response to the deontological concerns. L. Scheffler. W. Zerbe. Thresholds for Rights. Samantha Brennan. at 9. supra note 29. supra note 63. Intuitions about Penalties and Compensation in the Context of Tort Law. Corporate Risk Analysis: A Reckless Act?. e. e. see. On the prevailing aversion to CBA. while those who break a promise might feel remorse. Foundations of Economic Analysis of Law 609 (2004). and.. The Limits of Morality 1–5 (1989). 52 Stan. Legal Stud. Rev. at 235. 7 J. it is not. e.” A related but different argument rests on people’s self-regarding preferences or feelings.. 70. 547 (2000).. this is a corollary of incorporating prevailing moral norms into CBA. As Zerbe explicitly writes. people who keep a promise typically feel virtuous. Phil. supra note 68. but in fact. Steven Shavell. conceptually wrong or tautological.the consequentialist nature of economic analysis 29 well-being of every person. promises should be kept somewhat more often than would be optimal if the measure of social welfare did not reflect this utility that individuals experience from keeping promises. 71. aggregating their “preferences” may lead to abandoning consequentialism altogether!70 Including “tastes for fairness” or preferences for deontological constraints within CBA is therefore methodologically problematic. 145 (1995). 72.g. 30 J. and potentially self-defeating.69 In fact. 143. Shelly Kagan. W. then almost by definition. 33 Southern J. Feelings of Virtue and Remorse The previous argument in defense of consequentialism rests on disinterested “preferences.72 69. Kip Viscusi.”71 This conclusion sounds similar to adding a (rather weak) constraint to the cost-benefit analysis of keeping promises. See. Kip Viscusi. 313 (2001). “that in turn means that to maximize social welfare. Most people derive pleasure from behaving morally. The preference for this positive feeling is a component of people’s well-being. since the argument is made in the context of the morality of welfare economics and appears to present a practical answer to the deontological concern. any existing legal regime in any society is efficient. it is worth discussing. On the match between ordinary morality and threshold deontology. at 239 (“a rule which adopts uncontentious norms is necessarily efficient”). Jonathan Baron & Ilana Ritov. In fairness to Shavell. if the political process is a mechanism for aggregating preferences and normative judgments. it encompasses the “preferences” people might have regarding the well-being of other individuals and groups.g. The Challenge of Punitive Damages Mathematics. For example. However. see. . Moreover. see Dworkin.g. 4. . Steven Kelman.74 Finally. Williams. the fact that someone feels bad after breaching a contract makes the breach less efficient—that is.75 Once we all turn into (act-) consequentialists. Pa. 5 Regulation 33. at 101. L. to the extent that the breacher’s feelings matter at all. supra note 74. supra note 16. the validity of a deontological constraint is independent of people’s feelings about it. from a deontological perspective (as well as ordinary morality). 1529. are determined normatively. at 381–402. according to the remorse argument. their effect on the morality of the breach is the reverse. Kelman. 73.76 5. Rightful Lies. Deontological constraints. at 34. Thus. An Improved Theory of the Good: Ideal Preferences A well-known strategy for defending consequentialism is to adopt a complex conception of the good with a view toward imitating deontological constraints. and the Wrongness of Fraud. See also Alan Strudler. 146 U. while people’s feelings of virtue and remorse. and morality As already noted. But this (partial) reply is problematic in a democratic legal system. Incommensurable Goods. economics. A possible reply to this argument is that there should be an “acoustic separation” between ordinary morality for “ordinary individuals” and consequentialism for academics and government decision-makers.30 law. see Mark D. 75. 34 (1981). supra note 33. 1536 (1998) (making a similar claim regarding sadistic pleasures). It stands to reason that some people do not experience this feeling. Moreover. as well as their “preferences for constraints” (discussed earlier) may and should constitute part of positive analysis aimed at explaining and predicting human behavior. Another possible reply may be to change the focal point and move from act-consequentialism to virtue-consequentialism or character traits consequentialism. See Kaplow & Shavell. It is an empirical question whether and to what extent people feel remorse when behaving contrary to ordinary morality. For a proposal to incorporate deontological moral judgments into economic models of personal decision-making. 76. Rev. The fact that the breacher derives pleasure from harming the promisee makes the breach less—rather than more— justifiable. the remorse argument is likely to become circular. less morally justified—than if breaching the contract made her happy. 74. Cost Benefit Analysis: An Ethical Critique. Socio-Economics 89 (2004). White. In contrast. in contrast. 33 J.73 they do not address the deontological normative critique. we will no longer feel any remorse for breaking a promise or harming another person if such conduct enhances overall well-being. Can homo economicus follow Kant’s categorical imperative?. 1029–30 (2000) (noting that some forms of consequentialism “are so elastic that they can include in the statement of consequences things that usually seem like fatal omissions in consequentialism”). agency. Compass 329 (2009). at 38–83. as suggested by Amartya Sen. Nussbaum. the consequentialist can meet the challenge by simply sucking the alleged value into what we might call the consequentialist vacuum cleaner. at 10. Consumer Sovereignty and Human Interests 5-23 (1986). the documented phenomena of systematic cognitive biases have led some economists to endorse cognitively rational preferences as a 77. at 181–82. The Morality of Freedom 269–70 (1986).. Stud. L. Consequentializing. . In Defense of Redistribution through Private Law.Y.the consequentialist nature of economic analysis 31 As David McNaughton and Piers Rawling vividly described. Hausman & McPherson. 63 Phil. Rev. supra note 30. “whenever an opponent of a particular consequentialist theory asserts that existing consequentialist theories have ignored some value.U. G. and agent-relativity. 91 Minn. The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis. supra note 2. See generally. 78 N.. Daphna Lewinsohn-Zamir. at 190–91 (mentioning this possibility in the context of anti-terrorist measures). which rests on a rather simple theory of human well-being: preference satisfaction. supra note 15. the closest one can get to defending normative economics by improving its underlying theory of the good (without dramatically changing its basic features) is by moving from satisfaction of actual preferences—the traditional measure of well-being in economic analysis—to ideal ones. e. 80. control. Legal Stud. Daphna Lewinsohn-Zamir. 326 (2006). Griffin. Feldman. 29 J. Peter Penz. Allan M. The Objectivity of Well-Being and the Objectives of Property Law.80 Thus. David McNaughton & Piers Rawling. Agent-Relativity and the Doing Happening Distinction.79 Such a sophisticated theory of the good is unavailable to economic analysis. L. Griffin. bias. Cf. 9–22 (1980). Portmore.g. the goodness of outcomes (or possible world histories) to be maximized may include the realization of moral rights as well as considerations of actions. Rev. 79. 1005. supra note 47. See. Sen. See.81 As indicated. e. at 10–17. 4 Phil. supra note 30. supra note 55. 78. Douglas W. An ideal preferences theory of the good holds that a person’s well-being consists of the satisfaction of those preferences she would have had if only she calmly and rationally considered the issue. 1669.”77 For example. or prejudice. paying heed to all relevant information without any external pressure. 167.g. See also Martha C. supra note 15.78 Furthermore. See Joseph Raz. Posner & Vermeule. Sen. 168–69 (1991). 1677–1700 (2003). Sen. a theory of the good may take into consideration not only end results but also the acts leading up to them. 81. Welfare Economics and Social Choice Theory. or circumvent the deontological critique of consequentialism for its lack of constraints. CBA based on ideal preferences would support violating a constraint now to prevent two similar violations in the future (e. at 1699 (arguing that the laundering technique may assume that satisfying antisocial preferences might contribute to a person’s well-being but then disregards them in shaping social policy). Kamm. Lewinsohn-Zamir.82 However. Cf. 85. 83. Numerous additional demonstrations of this claim are provided throughout the second part of the book. F. 16. State and Utopia 28–35 (1974). Summary Our discussion has demonstrated that attempts to downplay. within a consequentialist factoral framework.83 The move to ideal preferences excludes antisocial preferences and reduces the likelihood that purely consequentialist economic analysis would endorse truly deplorable conclusions. supra note 20. See infra pp. at 289–90. nor the more modest move from actual to ideal preferences. 188–89. Kagan. 6. 57 Phil. and some go one step further and are willing to discount antisocial preferences. satisfactorily answer the deontological critique. Stud. deny.g.. Robert Nozick. 227. see Elizabeth Anderson. Moore. On the critique of such “hybrid consequentialism” from the point of view of nonconsequentialist moral theories. respectively. like the more sophisticated theories of the good. Anarchy. 84. and legal paternalism. supra note 48. at 216–18. where we critically discuss consequentialist attempts to overcome the deontological critique in such contexts as market discrimination. neither sophisticated theories of the good. are doomed to failure.32 law. 251–56 (1989). In contrast to deontology and in line with other consequentialist theories. . and morality superior measure of well-being. freedom of speech. the technique of “laundering” morally objectionable preferences actually aims at imposing constraints on welfare maximization. 293–94.84 It is unclear if an ideal preferences theory of the good can incorporate such distinctions as doing/allowing or intending/foreseeing. and 327–32. Harming Some to Save Others. supra note 81. murdering one person to prevent two future murders). Value in Ethics and Economics 79–86 (1993). Furthermore.85 82. economics.M. but even if it could. See supra p. but it still does not answer many of the deontologist’s concerns. 234–40. the result would be a recognition that threshold constraints are indispensable on the factoral level. It fails to treat people as separate. redefine the outcome as including such involvement). Teleology. to maximize overall well-being. 38 Am. touring foreign countries. Quart. at least some elements of well-being (e. .87 • E. 87. Phil. a consequentialist should recognize them as rights! See Philip Pettit. reading fiction. to a considerable extent. 86. Consequentialists may recognize constraints for additional reasons. Given that millions of people around the world are starving to death and many more are living in extreme poverty. See Douglas W. Agent-Relative Value. Rather than spending their resources on such goods and services. and ‘Good. and community.g. autonomous entities who should be given the option of pursuing their own projects and preferring the well-being of their loved ones over the overall good. Critics of consequentialism argue that such a requirement is unreasonably demanding. See infra pp.’ 117 Ethics 265 (2007). whenever it is possible to produce more good to others than to oneself at the same cost. 36–37. namely theories that allow agents to evaluate the goodness of outcomes depending on their involvement in bringing those outcomes about (or. put differently. Portmore.86 This response—as well as. This is particularly true of theories incorporating agent-relativity into consequentialism. Can An ActConsequentialist Theory Be Agent Relative?. More generally.the consequentialist nature of economic analysis 33 The response that comes closest to addressing the deontological critique satisfactorily is rule-consequentialism. Thus. and eating anything but very basic foods. We shall refer to such theories in the context of options as well. For example. one should do so. thereby maximizing good outcomes. Quart.. see Mark Schroeder. To the extent that it answers the critique. 38 Phil. consequentialism requires people to donate most of their money and devote most of their time to alleviate the suffering of the underprivileged. a requirement to maximize human welfare implies that the affluent (and even the not-so-affluent) should stop spending their money on such luxuries as watching movies. it does so by endorsing deontological constraints on the factoral level. people’s dignity and privacy) accrue only if they are respected by others as rights and not merely as means to maximize overall well-being. The Consequentialist Can Recognise Rights. For a critique of agent-relative consequentialism. the preference for constraints and ideal preferences responses— implies that policy analysis should incorporate deontological constraints. friends. 363 (2001). But this success comes at a price. Responses to the Demandingness Objection General Consequentialism requires everyone to maximize overall good outcomes rather than further one’s own interests or the interests of her family. 42 (1988). and energy to helping the needy. For this reason. A fundamental conjecture of normative economics is that under a relatively broad range of circumstances. suggest that people should consciously aim at maximizing overall utility.88 Moreover. 1907). they strive to correct market failures or mimic the outcomes of competitive markets. Long-Term and Indirect Effects Consequentialists tend to deny that consequentialism actually demands huge sacrifices. and at any rate. because we know better what the needs of our associates are and how to provide for them. economics. and because it is often easier to promote their welfare. The Methods of Ethics 430–39 (7th ed. Frank Jackson. 89. this section surveys the responses to this cogent critique rather briefly. one may not know what would make the lives of such people better or what would be the actual results of making a donation to an aid organization. See Henry Sidgwick. In fact. Even if it is true that a single person’s contribution cannot dramatically alter the fate of millions of poor people. and morality Compared to other consequentialist theories. One need not have intimate acquaintance with starving people to know that clean water and basic food would dramatically enhance their well-being. one can make contributions to reputable aid organizations which possess the pertinent expertise. the best way to maximize overall welfare is for each person to rationally pursue her own interests. 101 Ethics 461 (1991).34 law. Decision-theoretic Consequentialism and the Nearest and Dearest Objection. See supra pp. instead of engaging in productive activities. it can surely enhance the well-being of some people to a much greater extent than the corresponding decrease in the 88. this objection is less compelling in the context of economic analysis. the result might be disastrous— decreasing. The probability of effectively promoting the welfare of friends and family is much higher because people derive more benefit from interactions with people they care about.89 They are similarly unsuccessful. 22–24. Rather. These replies parallel the long-term and indirect effects defense of consequentialism against the critique that it lacks constraints. For example. time. if the affluent would devote most of their resources. . they point out that the ability of any individual to considerably improve the position of starving people on the other side of the globe is very limited. rather than increasing. if ever. the total human welfare. Economists rarely. 93. limited. supra note 91. The level at which any additional diversion of resources to charity would decrease global human well-being greatly exceeds both the current level of charitable contributions and the contributions mandated according to commonsense morality. however. & Pub. nor are constraints or options).the consequentialist nature of economic analysis 35 donor’s welfare (or the welfare of her friends and family) due to the donation. 105 Ethics 99. See.92 It is doubtful. whether the starting point of these arguments. 26. Mulgan. withstands equally stringent scrutiny. Living High and Letting Die: Our Illusion of Innocence (1996). an extremely demanding legal system—where 90. at 133–57.. The fact that most people fail to live up to the demands of a moral theory does not necessarily mean that something is wrong with the theory. it may be true that diverting the human and material resources that are currently employed in productive activities to charity would. International Aid and the Scope of Kindness. Kagan. 23. Famine. 91. e. 92. supra note 70 (labeling the defender of the present position “extremist”). at 31–37 (critically discussing consequentialists’ “strategy of denial” in response to the demandingness objection). at some point. 104–05 (1994). Finally. Kagan.g. 1 Phil.. See Garrett Cullity. This argument is akin to the claim that in those cases where consequentialism leads to counterintuitive conclusions due to its nonrecognition of constraints. . 229 (1972).91 Philosophers who subscribe to this view often argue that no principled departure from the basic requirement to promote the total good withstands theoretical scrutiny. Peter Singer. Affluence. supra note 36. or some such distinctions.93 At any rate. however. and Morality. and thus deontological options are not acceptable. Peter Unger. consequentialists may concede that their theory is extremely demanding yet insist that it is not unreasonably or unacceptably demanding. See supra pp. and since none of these distinctions is defensible. supra note 70 (arguing that recognizing options necessitates the recognition of constraints. decrease aggregate human welfare. even if an extremely demanding moral theory is acceptable. Unger. The weight of this concern is. namely that there is a general requirement to promote the overall good regardless of the proximity between the agent and the needy people. at 29–31. Aff. the problem does not lie with consequentialism but rather with the prevailing intuitions. supra note 36. e. which in turn presupposes the doing/allowing. See Mulgan. What is possibly wrong is the behavior of people and their self-serving moral intuitions.90 Extremism At this point.g. See. intending/foreseeing. 113 Ethics 303 (2003). and Supererogation. and potentially self-defeating for the same reasons that the notion of preferences for constraints is problematic. and a consequentialist theory may admit of an option to always choose between what the balance of moral reasons support doing and what the balance of all reasons. 95.94 This proposal is.97 From the agent’s position. Evaluator Relativity and Consequential Evaluation. Agent-Centered Options. 27–29. Thus. economics. however. “Preferences for Options” Another attempt to accommodate options within a consequentialist theory is to take into account people’s desire to have options. 12 Phil. an evaluation of the goodness of state of affairs should not be impersonal but rather evaluator-relative. enforced by the state—is much less acceptable. then the maximization of preference satisfaction requires the recognition of options. saving one’s own son rather than two other children may therefore produce more good. 30–32 (discussing modifications of the theory of the good as a way to overcome the deontological critique of consequentialism). Cf. .36 law. An agent should indeed always strive to promote the best state of affairs. This argument is similar to the notion of “preferences for constraints” discussed supra pp. states of affairs include the position of the agent vis-à-vis the outcome and her involvement in bringing it about. Position-Relative Consequentialism. See Amartya Sen. it may constitute a non-moral reason. & Pub. The present response is therefore considerably less available to defenders of CBA as a tool for legal policy-making. 97. Douglas W. and morality norms are centrally. See id. and sometimes violently. However. 94.95 Modified Theories of the Good More promising suggestions involve fundamental modifications in the theory of the good underlying consequentialism. conceptually unsound. it has been suggested that the theory of the good underlying consequentialism should depend on the position of the actor in relation to the resulting state of affairs.96 Accordingly. Aff. Arguably. Portmore. supra pp. methodologically problematic. 113 (1983). Even if the fact that some act would promote one’s own welfare does not constitute a moral reason to perform it. if people commonly prefer a normative system that includes options. 96. See.. while in some sense. instead taking into account the actions affecting human welfare as part of the outcome. it actually endorses deontological options for agents on the factoral level and mandates their consideration by legal policy-makers. which is commonly thought of as a distinctive characteristic of nonconsequentialist theories. 101. supra note 96. 98.99 This “consequentialist vacuum cleaner” strategy redefines (universal) consequentialism by decoupling it from agent neutrality. 99. anyone who is able to promote the good by aiding others is required to do so but only to the extent that would have been optimal had everybody else acted in the same way. See. it also rejects welfarism as an appropriate theory of the good. Portmore. Rule-Consequentialism Other responses to the demandingness objection restructure one or more features of act-consequentialism in a similar fashion to the modifications proposed to overcome the critique that consequentialism lacks constraints.100 Contrary to welfare economics. 24–27. Scheffler. supra note 97 at 128–32. Agent-relative act-consequentialism may thus provide a foundational justification for integrating options into CBA while retaining the methodological advantages of the latter as a decision-process mechanism. 8. it has been suggested that rule-consequentialism leads to more acceptable and intuitive conclusions than act-consequentialism with regards to options as well. So. at 1–3. 100. Instead of asking how an individual should act. Cf. supra note 70. Although.98 Such theories drastically narrow the gap between consequentialism and deontology. supra note 45.g. supra pp. . Thus. Sen’s comparison between his theory of “broad consequentialism” and moderate deontology: Sen. it is suggested to shift from individual consequentialism to a collective one.g. depending on its details.101 In the present context. there may still be some differences remaining. at xi–xii. e. at least on the foundational level. collective consequentialism asks how an individual should act assuming that everybody else will act similarly. Kagan. Such a theory views welfare maximization as a collective endeavor. It bridges between consequentialism and commonsense morality by adopting an agent-relative assessment of outcomes. Collective. e..the consequentialist nature of economic analysis 37 moral and non-moral. supports doing. Most notably. in addition to changing the focal point from acts to rules. agent-relative consequentialism is still a consequentialist theory. rather than almost all of it) is far greater than what is expected of people under commonsense morality. Moral Demands in Nonideal Theory (2000). supra note 36. see Mulgan. adhering to it seems like rule worship). almost nobody obeys even this less demanding rule. under the assumption of universal compliance. economics. to the extent that ruleconsequentialism succeeds in bridging the gap between act-consequentialism and commonsense morality. Assuming universal compliance. A different collective theory is proposed by Murphy. it does not fare much better as a realistic theory because it does not escape counterintuitive conclusions. we noted that rule-consequentialism is more persuasive as a realistic moral theory than as an ideal one. the larger one’s sacrifice should be. given the prevailing noncompliance. However.38 law. supra note 36. and thus much greater sacrifice is required of any individual to maximize the good. For a critical discussion of Murphy’s theory. it does so by providing consequentialist justifications for options on the factoral level. See Liam B.102 In the context of constraints. The required contribution critically depends on the number of needy people and the extent of their destitution. under realistic assumptions. Most important for our purpose. see Mulgan. For a critical discussion of rule-consequentialism’s response to the demandingness objection. Furthermore. Murphy. Either the adopted rule would fail to maximize the overall good (in which case. Other Modifications Rule-consequentialism is not the only possible modification of simple. at 104–23. requiring 102. Another suggestion is to replace maximizing with satisficing. one should contribute most of her money and devote most of her time and energy to aiding the poor). rule-consequentialism arguably collapses into actconsequentialism. or it would fail to answer the demandingness objection (because. . it may be superior to actconsequentialism. and morality Rule-consequentialism of this sort is considerably less demanding than act-consequentialism because in reality. rule-consequentialism may similarly collapse into act-consequentialism. even the more modest contribution that would be required according to a collective. at 53–103. In the context of options. donating 10 percent of one’s income. It also implies that the less effective aid organizations are. instead of requiring people to bring about the best outcomes. It is also fairer because one’s moral duty is not increased due to other people’s failure to perform their duties. that is. rule-consequentialism (say. actconsequentialism that has been offered in response to the demandingness objection. Michael Slote. 81 J. and a hybrid theory to balance between the demands of these two moral realms.105 All of these theories have been the target of potent critiques. Conclusion None of the consequentialist responses to the demandingness objection are satisfactory. Shelly Kagan. Even if such options ultimately rest on consequentialist justifications (on the foundational level). 36 Phil. 105. supra note 36. apply act-consequentialism to the satisfaction of the former.. these concessions imply that agents may and should make room for options in their normative deliberation.g.g. options are all the more so warranted when it comes to the formulation of legal norms by public policy-makers. supra note 36. Quart. at 145–66. Phil. & Pub. 277 (1987). e. Stephen Darwall. normative economics is less susceptible to the critique of over-demandingness. see. The Rejection of Consequentialism (Book Review). Given the harshness of legal remedies and sanctions. into CBA. Mulgan. at 127–44. Phil. Mulgan. unlike other consequentialist theories. at 169–294. because across a broad range of circumstances it assumes that the best way to maximize overall welfare is for each person to rationally pursue her own interests. . see Timothy Chappell. For this reason.. 239 (1984).103 Alternatively. 111 Mind 891 (2002).104 A more complex possibility would differentiate between needs and goals as different components of human well-being. 84 J. they do so by explicitly or implicitly endorsing deontological options on the factoral level. there are some 103. 104. rule-consequentialism to the satisfaction of the latter. however. For critical reviews of Mulgan’s combined consequentialism theory. our discussion will focus on the integration of constraints. Slote on Consequentialism. by Tim Mulgan (Book Review). Alexander. For a critique of Slote’s satisficing consequentialism. Larry A. As will become clear. 78 Philosophy 289 (2003). supra note 45. The Demands of Consequentialism. Commonsense Morality and Consequentialism (1985). Scheffler. e. Mulgan.the consequentialist nature of economic analysis 39 them to bring about only “good enough” outcomes. Scheffler on the Independence of Agent-Central Prerogatives from AgentCentered Restrictions. supra note 36. see. Philip Pettit. The Demands of Consequentialism. For critiques of Scheffler’s theory. Aff. but discussing them here would lead us too far astray. Does Consequentialism Demand too Much? 13 Phil. 220 (1984). 399 (1986). As indicated. rather than options. Brad Hooker. To the extent that some of them get closer to answering the deontological critique. one may construct a hybrid moral theory incorporating deontological options not to promote the good yet rejecting deontological constraints on promoting it. To balance the picture. 106. the next chapter thus describes deontological morality in general and moderate deontology in particular. and economic analysis in particular. including CBA. Of the various normative and methodological tenets of welfare economics. To the extent that the attempts to defend consequentialism in general. . are successful.106 • F. We argued that consequentialism is not an acceptable moral theory due to its lack of constraints and lack of options. and morality contexts in which fruitful analysis of legal issues requires us to pay heed to options as well. 289–91. Before analyzing the plausibility of integrating constraints (and options) into CBA. they concede that constraints and options should actually be part of normative and policy deliberation. general account of economic analysis.40 law. economics. and presents the major objections to them. one must make sure that there are no other aspects of deontology that make it unacceptable or unattractive. Conclusion This chapter provided a brief. See infra pp. it highlighted its consequentialist characteristic. 1999) (“deontological theories are defined as non-teleological ones.1 Deontological theories prioritize such values as autonomy. Morality. they do not consider it the only intrinsically important factor. All deontological theories view the goodness of outcomes as a morally relevant factor. truth telling. Normative Ethics 60. They do.”). Frances M. A Theory of Justice 26 (rev. 1. At the same time. e. See. 70–78 (1998).g. Mortality. The chapter aims to demonstrate that deontology is superior to consequentialism. 41 . fair play. They include constraints on attaining the best outcomes. fidelity. Kamm. It is therefore difficult to state summarily even their basic features.. Deontological theories thus recognize agent-relative constraints (on promoting the good) and agent-relative options (not to promote the good). Vol. unlike consequentialism. basic liberties. share a common denominator. however. • A. but. pursue the interests of their family. and sometimes should. friends.• two Threshold Deontology and Its Critique this chapter describes the basic tenets of deontological morality in general and moderate deontology in particular. People may. ed. Deontology Deontological moral theories are typically more complex than consequentialist theories and more diverse. and keeping one’s promises over the promotion of good outcomes. and community. not as views that characterize the rightness of institutions and acts independently from their consequences. All ethical doctrines worth our attention take consequences into account in judging rightness. I: Death and Whom to Save From It 76 (1993). 64. deontology allows people to (sometimes) prefer their own interests over those of others. Shelly Kagan. John Rawls. human dignity. at least on the factoral level or as a decision procedure. It then examines the major critiques leveled against them. even if such a pursuit conflicts with attaining the overall good. On deontological notions of fairness. at 4-6. The View from Nowhere 176 (1986). deontology focuses on the morality of the action itself and on relations between people. 100 Yale L. breaking promises. and if two people were tortured. It also includes special obligations created by promises and agreements and restrictions on lying and betrayal. a consequentialist would maintain that. On this question. 5. Thomas Nagel. 847. which practically blocks any move from the legal status quo. of evenhandedness or equality in one’s treatment of people.”5 The question of how to establish a defensible list of constraints is part of the broader question of how a normative theory is to be established and defended. As ordinarily conceived. 11–17. see Norman Daniels. a deontologist would hold that it is immoral for an agent to torture another person or to be in a torturer-victim relationship. Rev. Rawls. (Had it been so inclusive.42 law. 16 Utilitas 62 (2004). Iwao Hirose. Justice and Justification (1996). For the deontologist. The Pointlessness of Pareto: Carrying Coase Further. Dorff. Brad Hooker. Kagan. and duties to oneself). Aff. The central deontological constraint is against harming other people. Darwall. 20 Phil. consequentialism hence adopts an impartial. the fact that a person was tortured is a bad thing. 4. Stephen Darwall. 350. but it usually includes restrictions on violating fundamental rights. This constraint does not apply to each and every interest an individual may have.2 For instance. at 84–94 (discussing the scope of the constraint against harming people). supra note 1.. The Paradox of Deontology. Real World 4–23 (2000). Christopher McMahon. . two people are being tortured by someone else. 75 S. Aggregation and Numbers. 3. 858–59 (2002).6 2. 2003). 6. supra note 1. whereas deontology is distinctively agent-relative. economics. such as the rights to life and bodily integrity. Why Welfare Depends on Fairness: A Reply to Kaplow and Shavell. conventions. in Deontology 1 (Stephen Darwall ed. supra note 1. which lies beyond the scope of our discussion. and morality Whereas consequentialism judges the morality of an action (or anything else) according to its outcomes. & Pub. L. at 15–19 (introducing the notion of “reflective equilibrium”). In contrast. supra note 1. supra note 2 (providing a long list of relations which are intrinsically important for deontology). Guido Calabresi.4 There is additionally a “deontological requirement of fairness. See Kagan. failing to meet special obligations. Cal. the fact that she tortures one person may well be worse than the fact that somewhere in the world. all else being equal. we would be left with the Pareto principle. 106–52 (discussing lying. Michael B. 1211 (1991). and freedoms of religion and speech. it is certainly worse. Introduction. human dignity. 354–68 (1991) (defining deontological constraints through the notion of unfair treatment of others). agentneutral perspective.J. see also Kamm. Ideal Code.)3 The exact list of deontological constraints is debatable. 10 New Crim. 33–40.. e. at 95–97. and the State. David Enoch.10 What the doing/allowing distinction suggests is that the moral responsibility for actively harming people is greater than for failing to prevent harm. 210. Intending. and the risks and costs to the agent do not exceed a certain threshold. 114 Ethics 215 (2004). even where such violations are the expected outcome of avoiding the current one. Killing in Good Conscience: What’s Wrong with Sunstein and Vermeule’s Lesser Evil Argument for Capital Punishment and Other Human Rights Violations?. 1994). See supra pp. .9 Deontology does require agents to aid others. is subject to the constraint against actively harming people. This is not to say that a duty to aid others never exists. Foreseeing. Rev. Doing and Allowing. and thus the former is worse than the latter. deontology thus distinguishes between actively harming a person and not aiding her (often labeled the doing/allowing distinction). 8. the prohibition to kill one person in order to save two would prohibit both killing the person and not killing her (thereby allowing the death of the two). 222–23 (2007). Sunstein ed. or to some such distinction. see Shelly Kagan.11 It also implies that the duty to prevent harm befalling other people. For psychological studies substantiating the prevalence of this intuition. Cf. 98–103. 60–62. 19–21. 9. e. at least when the loss or suffering experienced by those others is large enough. see..g. 13 Legal Theory 69. supra note 1.g. For a critical discussion of this suggestion..threshold deontology and its critique 43 The notion of agent-relativity crucially implies that there must be a difference between a person’s duty to refrain from violating a constraint and her duty not to bring about or prevent other violations. The doing/allowing distinction is sometimes reformulated as a distinction between interfering and not interfering with a person’s welfare. See also infra pp. See. L. infra pp. 2d ed. in Behavioral Law and Economics 168 (Cass R. Kagan. 2000). Samuel Scheffler. allowing harm is not ordinarily so. in circumstances where it exists. 11. Deontology is less demanding than consequentialism. which requires one to promote overall good outcomes at all times and thus to assist other people whenever the costs to oneself is smaller than the benefits to the other. A useful collection of studies of the doing/allowing distinction is Killing and Letting Die (Bonnie Steinbock & Alastair Norcross eds.12 7. Otherwise. 97–99 (2007). Reluctance to Vaccinate: Omission Bias and Ambiguity. Ilana Ritov & Jonathan Baron.8 While doing harm is at least presumably immoral. Deontology therefore must resort to a distinction between actively violating a constraint and not preventing constraint violations by others. 10.. Eric Blumenson.7 In the context of the constraint against harming people. The Limits of Morality 92–101 (1989). 12. 44 law, economics, and morality Another distinction deontologists often draw is between intending harm and merely foreseeing it. Intending harm is immoral even if the harm is merely allowed, while foreseeing harm is not necessarily immoral.13 In causing an intended harm, one aims at evil. The constraint against intending harm forbids not only harming a person as an end but also as a means to attaining another goal. Killing a person to inherit her money is an intended harming, even if the killer would have preferred that there were other ways to obtain the money. Using a person as a means violates the requirement to respect people as ends. A related distinction is thus drawn between harming a person as a side effect of aiding or saving other people and using a person as a means to aiding or saving others. Allegedly, from the perspective of the harmed person, suffering a certain loss (including loss of life) as a result of being used by another person, or as a mere side effect of another person’s otherwise praiseworthy act is equally damaging. But this is not necessarily so. The harmed person has an interest not only in her fate but also in her status, in what permissibly may be done to her.14 The means/side-effect distinction is often discussed in reference to the “trolley problem.”15 Suppose that an uncontrolled trolley is hurtling down a track. Directly in its path stand five people who cannot escape and will be killed by the runaway trolley. An agent can flip a switch, diverting the trolley to another track, where it will kill a single individual. Should the agent flip the switch? Alternatively, suppose that the only way the agent can save the five people is by pushing another individual onto the track, blocking the trolley, and killing that individual. Should the agent push the other individual? Most people find diverting the trolley morally permitted, perhaps even required, while pushing the individual morally forbidden.16 Deontologists ground the difference in the distinction between killing as a mere side effect (in the diverting scenario) and killing as a means (in the pushing scenario). 13. On this distinction, see Kagan, supra note 8, at 128–82; Nagel, supra note 5, at 179–80; Jonathan Bennett, The Act Itself 194–225 (1995). 14. Adil Ahmed Haque, Torture, Terror, and the Inversion of Moral Principle, 10 New Crim. L. Rev. 613, 634 (2007). 15. See Philippa Foot, The Problem of Abortion and the Doctrine of the Double Effect, in Virtues and vices and other essays in moral philosophy 19, 23 (1978); Judith Jarvis Thomson, The Trolley Problem, 94 Yale L.J. 1395 (1985); F.M. Kamm, Harming Some to Save Others, 57 Phil. Stud. 227 (1989); Alison McIntyre, Doing Away with Double Effect, 111 Ethics 219 (2001). 16. See John Mikhail, Elements of Moral Cognition (forthcoming 2010). threshold deontology and its critique 45 The death of the single person on the other track is a mere side effect because it does not provide the actor with a reason for her behavior or an explanation for it.17 The intending/foreseeing and means/side-effect distinctions may rest on causality tests or on the agent’s motivation. According to the former, one should determine whether inflicting the harm is, objectively speaking, a means to attaining the agent’s goal. Thus, in the first trolley scenario, killing the single person on the other track is not part of the causal chain leading to saving the five, whereas pushing the individual in the second scenario is. According to the latter criterion, the decisive factor is the agent’s mental attitude to the harm. Suppose that the agent knows that the single person on the other track is someone she wishes were dead, and that is her motivation for flipping the switch. According to the motivation test, flipping the switch—which would have otherwise been permissible or even obligatory— is morally wrong and impermissible. Those who favor the causality test may plausibly argue that the question of the morality of the act can be separated from the righteousness of the actor.18 An agent may conceivably fail to do the morally right thing blamelessly or do the morally right thing and still be considered blameworthy. The doing/allowing and the intending/foreseeing distinctions usually overlap; and the former is sometimes rationalized as a proxy for the latter. In most cases of merely allowing harm, the harm is an unintended outcome of people’s inaction, and thus the two distinctions coincide.19 The two distinctions do, however, yield different conclusions when one intentionally allows harm (thus violating only the constraint against intending harm), and when one actively harm another as a mere side effect of attaining another goal (thus violating only the constraint against doing harm). An example of the first scenario would be not treating a terminally ill, suffering patient, with 17. See Robert Cryer & A.P. Simester, Iraq and the Use of Force: Do the Side Effects Justify the Means?, 7 Theoretical Inq. L. 9, 32–33 (2006). 18. For different positions in this debate and for further analyses of the intricacies of the intending/foreseeing distinction (and references to many more discussions), see Judith Jarvis Thomson, Physician Assisted Suicides: Two Moral Arguments, 109 Ethics 497, 514–16 (1999); Enoch, supra note 7, at 79–81; William J. Fitzpatrick, Acts, Intentions, and Moral Permissibility: In Defence of the doctrine of Double Effect, 63 Analysis 317 (2003); Joseph Shaw, Intentions and Trolleys, 56 Phil. Q. 63 (2006). 19. See also Frances Howard-Snyder, Doing vs. Allowing Harm, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/doing-allowing/#9 (last revised Sep. 21, 2007). 46 law, economics, and morality the intention of letting nature take its course. Diverting the trolley is an example of the second scenario. As will be demonstrated, sometimes both criteria bear on the permissibility of a certain behavior. These distinctions, as well as others to which deontologists resort,20 play a very minor role, if at all, in consequentialist analysis. Deontological moral theories are either absolutist or moderate. While absolutist deontology maintains that constraints must not be violated for any amount of good consequences, moderate deontology holds that constraints have thresholds. A constraint may be overridden for the sake of furthering good outcomes or avoiding bad ones if enough good or bad is at stake. For instance, even the constraint against actively/intentionally killing an innocent person may be justifiably infringed if such killing is the only way to save the lives of thousands of people.21 The thresholds that have to be met to justify the infringement of other constraints, such as those against lying or breaking one’s promise, are possibly much lower. Correspondingly, deontological options need not be absolute: when enough good or bad outcomes are involved, there is no longer an option not to further the good or avoid the bad. Moderate deontological theories may thus be described as pluralistic. In determining the amount of good/bad outcomes that may justify infringement of a constraint, a moderate deontologist may reasonably take into account both the doing/allowing and the intending/foreseeing distinctions. Thus, the threshold that has to be met to justify actively harming another person when the harm is intended is plausibly much higher than when it is a mere side effect. Referring once more to the trolley problem, it stands to reason that diverting the uncontrolled trolley to another track (that is, killing as a side effect) may be justified in order to attain a net saving of a small number of lives, whereas pushing a person onto the track to block the trolley (killing as a means), is only justified for the sake of saving very many people. Suppose now that a person who is stuck on the track is expected to block the runaway trolley, thereby saving the lives of other people. Arguably, not aiding this person to get off the track, thus allowing her to be killed as a means to saving the others, is permitted for the sake of saving less people than in the pushing scenario (involving an active killing). 20. For a discussion of seven different distinctions drawn by deontologists and their correspondence with three aspects of agents’ culpability, see Michael S. Moore, Torture and the Balance of Evils, 23 Isr. L. Rev. 280, 299–314 (1989). See also infra pp. 86–93. 21. See, e.g., Judith Jarvis Thomson, Some Ruminations on Rights, in Rights, Restitution, and risk 49 (William Parent ed., 1986); Samantha Brennan, Thresholds for Rights, 33 Southern J. Phil. 143 (1995); Kagan, supra note 1, at 78–80. threshold deontology and its critique 47 The recognition of thresholds helps illuminate the relationships between deontological constraints and options. Contrary to first appearances, it is sometimes permissible to infringe a constraint as a means to promoting good outcomes, even when promoting such outcomes is not a moral duty but a mere option. An agent may not be under a duty to rescue imperiled people because such a rescue operation would involve considerable costs to her. Nevertheless, if the agent chooses to incur those costs and rescue the people, the expected net benefit of such a rescue operation may be large enough to justify her breaking a promise or even inflicting some physical pain on another person. At the same time, if the agent chooses not to rescue the imperiled people (which, ex hypothesis, is perfectly legitimate), breaking the promise may be impermissible even if keeping it entails larger costs to the agent than those involved in the rescue operation.22 In considering fairness issues, such as whom to save from death when only some imperiled people can be rescued, and in calculating the net benefit of infringing behavior (as threshold deontology requires), deontology typically diverges from consequentialism in yet another respect. Consequentialism usually aggregates all benefits and costs indiscriminately. Deontology, in contrast, often excludes various costs and benefits from the moral calculus. A deontologist may plausibly believe that in choosing between course of action A, in which two people will be saved from death and a third person will be relieved from a mild headache, and course of action B, where two other people will be saved from death and a car will be salvaged, the prospects of relieving the headache and of salvaging the car are simply irrelevant. Similarly, deontological morality may judge that no amount of pecuniary loss may justify an active/intended killing, hence regarding such loss as morally irrelevant in this context. In the same vein, a deontologist may wish to distinguish between harming a person in order to prevent considerable harms befalling other people and harming a person in order to further improve other people’s well-being. Contrary to standard CBA, where forgone benefits are but one type of costs and forgone costs are simply benefits, the deontologist might wish to exclude or drastically discount the enhancement of well-being as justifying infringements of constraints. A variety of such excluders will be discussed later.23 22. Cf. Frances Myrna Kamm, Supererogation and Obligation, 82 J. Phil. 118 (1985). 23. See infra pp. 86–93, 147–49, 195–211, and 342–46. 48 law, economics, and morality More so than its rivals, factoral moderate deontology conforms to prevailing moral intuitions (commonsense morality).24 It may thus be directly defended as an intuitionist theory.25 Factoral deontology may, however, be grounded in other foundational theories. Prominent deontological foundational theories are Immanuel Kant’s universalizability and various brands of contractarianism. According to the former, the key to determining the valid moral rules is that they may be applied universally. Universal binding is not only a necessary condition for sound moral rules but also the ground for their validity.26 According to contractarian theories, since morality first and foremost governs interactions between people, the right moral system is the one to which everyone would reasonably agree. Such a moral system is binding by virtue of the fact that it could be reasonably agreed upon.27 A deontological factoral theory may conceivably rest on a consequentialist foundational theory as well.28 Possibly, the best results overall would be attained if people would always reason and behave as deontologists. This section provided a bird’s-eye view of deontological morality; the following sections examine the key critiques leveled against deontology as a factoral morality. Since our proposed analytical framework rests on moderate deontology, after discussing some criticism of deontology in general in section B, section C will focus on the objections to moderate deontology. This discussion, as well as the analysis in chapters 3 through 5 (dealing with deontology as a public morality, the construction of threshold functions, and possible objections to such construction, respectively), and the application of our proposed analytical framework to various legal issues in the ensuing chapters, will provide a fuller explication of deontology in general and moderate deontology in particular. 24. See, e.g., Brennan, supra note 21, at 145; Samuel Scheffler, Introduction, in Consequentialism and Its Critics 1, 9 (Samuel Scheffler ed., 1988); Kagan, supra note 8, at 1–5. 25. Darwall, supra note 2, at 2; Nancy (Ann) Davis, Contemporary Deontology, in A Companion to Ethics 205, 211–12 (Peter Singer ed., 1991). 26. Immanuel Kant, Groundwork for the Metaphysics of Morals (Mary Gregor trans. & ed., Cambridge Univ. Press, 1998) (1785) (introducing the categorical imperative). 27. Among contemporary contractarian theories, the most influential is Rawls, supra note 1. Rawls is primarily concerned with political philosophy, but his ideas are relevant to normative ethics as well. See David Richards, A Theory of Reasons for Action (1971). Another influential theory is offered by T.M. Scanlon, What We Owe to Each Other (1998). On contractarianism as a foundational moral theory, see generally Kagan, supra note 1, at 240–56. 28. Kagan, supra note 1, at 223–39. threshold deontology and its critique • 49 B. Critique of Deontology in General This section discusses three major critiques of deontological morality.29 One critique often leveled against deontological constraints—moderate and absolutist alike—is that they are irrational. Assuming that there is something intrinsically bad in harming a person or using her as a means to some end, it seems irrational to oppose such harming or such use when the outcome of not harming or not using the person is a greater amount of equally severe harming or using of other people. This critique focuses on the victims of harm, but it also applies to justifications of constraints that focus instead on the agent, the relations between the agent and the victim, and so forth.30 One may respond to the so-called “paradox of deontology” critique by contending that constraints are necessary to cope with people’s biases, shortsightedness, and cognitive limitations.31 The belief that by torturing a suspect, the authorities will successfully prevent a terrorist attack is often misguided, and it is therefore safer to prohibit such torture altogether (or almost altogether). This reply corresponds to the rule-consequentialist response to the deontological critique, namely combining constraints on the factoral level with rule-consequentialism on the foundational level.32 It thus calls for a parallel rejoinder, i.e., the difficulty to justify obeying the deontological constraint when it is certain that such obeisance would actually increase the overall violations of the constraint. Alternatively, one may reject the implicit consequentialist assumption that the desirability of actions is ultimately determined by their outcomes, or, in other words, to divorce the right from the good. Thus, a deontologist may claim that duties arising from special relationships (e.g., between parents and their children) as well as prohibitions against being in certain relationships (e.g., between a torturer and her victim) take precedence over 29. For additional challenges facing nonconsequentialist morality, see Larry Alexander, The Jurisdiction of Justice: Two Conceptions of Political Morality, 41 San Diego L. Rev. 949, 962–66 (2004). 30. Kagan, supra note 8, at 24–32; Samuel Scheffler, The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions 80–114 (rev. ed. 1994). For the radical claim that the act/omission distinction is nothing but a psychological error, see Jonathan Baron, Morality and Rational Choice 99–120 (1993). 31. Kagan, supra note 8, at 32–39. 32. See supra pp. 24–27. 50 law, economics, and morality the duty to maximize the good.33 While consequentialism judges acts according to whether they bring about the best state of affairs, deontology judges acts according to whether the actors conduct themselves in ways that maintain their moral integrity.34 Another line of attack on moderate as well as absolutist deontology points to the great difficulties in systematically and generally characterizing the content of the constraint against harming people. Shelly Kagan, among others, has powerfully demonstrated that none of the conventional deontological distinctions—between doing harm and merely allowing it, between intending harm and merely foreseeing it, or between interference and noninterference with others’ welfare—provides a coherent and intuitively acceptable criterion for setting the constraint in all circumstances.35 While some philosophers believe it is nevertheless possible to come up with such a systematic criterion,36 others concede that such a criterion may not exist, yet maintain that the criterion’s absence is not fatal to deontology. It may be that different factors play different roles in different contexts.37 The last critique of deontology to be mentioned here is that any nonconsequentialist concern is incompatible with the (weak) Pareto principle and thus unacceptable. As Louis Kaplow and Steven Shavell have argued, while a consequentialist normative theory, determining the goodness of outcomes solely on the basis of their effect on people’s well-being, will always favor a 33. W.D. Ross, The Right and the Good 16–47 (Philip Straton-Lake ed., 2002) (1930); David McNaughton & Piers Rawling, On Defending Deontology, 11 Ratio 37, 41–44 (1998). 34. Stephen Darwall, Agent-Centered Restrictions From the Inside Out, in Deontology, supra note 2, at 112, 127–35. 35. Kagan, supra note 8, at 83–182. See also Bennett, supra note 13 (criticizing the very distinction between doing and allowing, as well as the normative significance of this distinction and the distinction between intending and foreseeing harm); Killing and Letting Die, supra note 8. 36. See, e.g., Kamm, supra note 15; Frances M. Kamm, Shelly Kagan’s The Limits of Morality, 51 Phil. & Phenomenological Res. 903 (1991) (reviewing Kagan, supra note 8). 37. See, e.g., James Griffin, The Limits of Morality by Shelly Kagan, 99 Mind 128, 129 (1990) (book review) (arguing that the moderate may do without “a simple, fully explanatory moral theory,” instead admitting that “morality is a messy, unsystematic affair, that justifications for moral norms are varied, incomplete, and not articulable in a way that will suit all cases”); F.M. Kamm, Morality, Mortality, Vol. II: Rights, Duties, and Status 49–60 (1996) (indicating that the same factor may have different moral significance in different contexts, possibly because the factors interact differently in each context); Samuel Freeman, Utilitarianism, Deontology, and the Priority of Right, 23 Phil. & Pub. Aff. 313, 349 (1994) (concluding that deontology relinquishes complete rational systematization for the sake of plurality of values and principles). 1449. it is the removal of a constraint against harming people that necessarily violates the Pareto principle. Chang. by Louis Kaplow & Steven Shavell. Fairness Versus Welfare 52–58 (2002). 40. Public Legal Reason.J. Econ. and the Pareto Principle. Howard F. L. Lawrence B. Mark D. and leads to strange puzzles. and Respect for Dignity: A Kantian Perspective.J. Soc. 363–64 (2002) (pointing to “blatant circularity” in Kaplow & Shavell’s argument). Critique of Threshold Deontology Above and beyond the general critique leveled at deontological morality. A deontological theory may plausibly qualify any constraint or option such that it would not apply whenever everybody would be better off without this constraint or option. and a hypothetical case at that”). for in real life. To begin with. Rev. • C. moderate deontology is subject to additional criticism. Louis Kaplow & Steven Shavell. See also Jules L. Richard Craswell. Utility. supra note 38). Rev. Kaplow and Shavell on the Substance of Fairness. 245. This section addresses the allegations that moderate deontology is incoherent. David Dolinko. 285 (2003) (explaining that Kaplow & Shavell’s argument is “refutation by a single case. It may therefore be read as establishing the weakness of the Pareto principle. The Perils of Welfare Economics. U.41 Removing the constraint renders the harming of people obligatory whenever such harming produces overall good outcomes. 78 J. White. 32 J.40 Finally. 112 Yale L. 277. 97 Nw. the conflict between deontology and the Pareto principle is tautological: it merely restates the conflict between deontology and consequentialism. inappropriately aggregates harms to people. Solum. Legal Stud. despite the fact that the harmed people are worse off. Cf. 67 Rev. arbitrary. . 32 J. Locating Distribution. L. 92 Va. 351. The Grounds of Welfare. in the context of deontological constraints. 38. Jeremy Waldron.39 More fundamentally. Econ. Kaplow and Shavell’s argument holds only behind an imaginary contractarian veil of ignorance. a deontological theory may sometimes favor a rule that makes everybody worse off. 41. 1523–24 (2003) (reviewing Kaplow & Shavell. 152 (1970) (referring to a special case of Kaplow & Shavell’s general argument). 173 (2000).38 There are several persuasive responses to this claim.threshold deontology and its critique 51 rule (or anything else) that makes everybody better off. 110 Yale L. 39. at 860–61. The Impossibility of a Paretian Liberal. deontological theories do not necessarily conflict with the Pareto principle. Amartya Sen. Book Review of Fairness Versus Welfare. Pol. Consent. Legal Stud. disrespectful of human dignity. Dorff. Pareto. supra note 3. A Liberal Theory of Social Welfare: Fairness. 49 (2009). 246–57 (2003). Coleman. 1496–99 (2006). the goodness of outcomes is not the only factor. Christopher. including lying.J. threshold deontology is no better than consequentialism). if no moral principles govern the behavior of agents in extreme cases.52 law. context-generated. L. Right and Wrong 10 (1978) (arguing that “the concept of the catastrophic is a distinct concept just because it identifies the extreme situations in which the usual categories of judgment (including the category of right and wrong) no longer apply”).”43 This argument is unpersuasive. are deemed permissible under daily circumstances. and that (contrary to absolutist deontology). 108–16. Deterring Retributivism: The Injustice of “Just” Punishment. respect for people requires that such acts be “unprincipled. Recognizing that there is more than one morally relevant factor inevitably implies that under different circumstances. many infringements of deontological constraints. 877–80 (2002) (arguing that in permitting an innocent person to be punished once the threshold is met. Rev. in which case they should never be violated. how would agents decide whether the circumstances they face are truly extreme? How can one judge. Alon Harel & Assaf Sharon. See also Russell L. (forthcoming). at 215–16. supra note 25. 43. some factors outweigh others and that all factors should be taken into account. On this argument see infra pp. monetizing threshold constraints and integrating them with CBA does. even if moderate deontology per se does not disrespect human dignity. in retrospect. even if one focuses on such extreme measures like killing and torture. 843. whether the infringement was morally justified? 42. some argue that the very formulation of rules that determine when it is permissible to kill or torture people is disrespectful of human dignity and thus incompatible with Kantian morality. For one thing. See. in which case one becomes a consequentialist. Davis. or they can be overridden by the goodness of results. U. 96 Nw. Moreover. economics. or causing mild physical pain. and morality Incoherence Setting thresholds is arguably incoherent: either deontological constraints have primacy over the good. 60 U. However. . constraints may be outweighed by enough good outcomes.” They “ought to be performed strictly as acts of necessity. not as acts governed by principles.g. A related argument is that. “Necessity Knows No Law”: On Extreme Cases and Uncodifiable Necessities.. Extreme emergencies may indeed compel one to do horrible things to prevent catastrophic outcomes. not merely under extreme ones. e. Disrespectfulness Relatedly. promise breaking. See also Charles Fried.42 The response to this critique is that it is quite coherent to maintain that (contrary to consequentialism). Toronto L. 48 Seemingly arbitrary rules are often set by the legal system when the benefits of having a bright-line rule offset its obvious costs. . to set the deontological threshold at any particular point in a nonarbitrary manner. institutional arrangements are established. supra note 20. Similar allegations are made with regard to thresholds for deontological options. On incomparability. 45. Russell L. 893. 72 Fordham L. some claim. Rev. Necessity and Existential Politics. Anthony Ellis. 154 (2003). Incommensurability and the Arbitrary. 15 Law & Phil. 855 (1992). Larry Alexander. & Phenomenological Res. 47. See also infra pp. Terror in the Balance: Security.threshold deontology and its critique 53 There may be institutional and “expressivist” reasons to refrain from explicitly authorizing the killing or torturing of innocent people by legislation. there is no escape from delineating these circumstances. 37 San Diego L. Cf. Christopher.44 and there may be instrumental advantages to regarding some acts as morally taboo. See also Moore. 65 (1996).47 In reply. committed to maximizing good results. See Christopher Kutz. this is an inevitable feature of any pluralist normative theory incorporating more than one morally relevant factor. Deontology. 93. 95 Cal. Torture. supra note 1. see infra pp. Larry Alexander. supra note 20. giving policy-makers or individuals discretion to set the threshold within a rather broad range. 235. namely that “institutions and institutional actors tend to abuse the limits of their discretion”). L. Liberty. and the Courts 188 (2007). at 329–31 (conceding the psychological danger involved in allowing thresholds for constraints but denying that this is a compelling argument against moderate deontology). at 332. one can grant that while any cutoff point is indeed “arbitrary” in the sense that the threshold could have been fixed higher or lower. Kagan. 905–10 (2000). 112–13. 48. Deontology at the Threshold. See also Eric A. once it is accepted that constraints may justifiably be infringed under certain circumstances. 117–22. Affirmative Duties and the Limits of Self-Sacrifice. At other times. Posner & Adrian Vermeule. The Prosecutor’s Dilemma: Bargains and Punishments. Rev.46 This is arguably due to the incomparability of consequentialism and deontology: the former is goal-oriented. while the latter holds that some acts are intrinsically wrong. 46. it is impossible. Rev.45 However. 44. 52 Phil. at 80–81. Moore. Arbitrariness Moderate deontology is impugned for being arbitrary. 256 (2007) (criticizing moderate deontology on institutional grounds. 52 Yet others deny that deontology is incompatible with the aggregation of human lives. it is also a loss of a person. But Not Their Numbers. Aff. but with loss to people. See. 31 Phil. For a critique of this view. . only a weighted lottery. 285 (1978).. 51. supra note 27. Can a Nonconsequentialist Count Lives?. 20 Ratio 45 (2007). Selecting People Randomly. thereby giving all people an equal chance of survival.g. Montmarquet. 61 Analysis 165 (2001). one should decide whether to let the one or the many die by tossing a coin. On Doing Good: The Right and the Wrong Way. & Pub.g. 36 Phil. Michael Otsuka. Contractualism on Saving the Many. economics.51 Others claim that equal respect for people justifies neither a decision mechanism by which all groups stand a similar chance to be rescued regardless of their size nor a blanket preference for rescuing the largest group. Rahul Kumar. James A. e. Saving Lives. since 49.g. truly respects each and every person in all the groups. & Pub. Taurek. 95 Ethics 38 (1984). see. John Broome. Moral Theory. As John Taurek has famously argued... supra note 1. However. 6 Phil. For a critique of this position. Kamm. e. & Pub. Should the Numbers Count?.49 Most philosophers reject this counterintuitive argument. Judging that it is morally permissible to kill one innocent person to save the lives of a large number of people assumes that human lives may be added up. Aff. and morality Inappropriate Aggregation Another difficulty facing threshold deontology is that it arguably requires a morally inappropriate aggregation of harms to people.. See. 34 Phil. and since for every person the loss of life. when one group is larger than the other. Kavka. Stud. or anything comparable is equally painful. Aff. as each person’s claim to be rescued is balanced against the conflicting claim of a person in the other group. at 229–41. 50. Aff. and the Claims of Individuals.g. However. 71 (2003). 109 (2006). 64 Analysis 106 (2004). at 75–143. even if her presence neither creates a tie nor breaks it. Scanlon. there is arguably no reason to prefer the lives of the many to the life of the one. liberty. & Pub.50 Some argue that equal respect for human beings means that tossing a coin is appropriate when there is the same number of people in each group. e. supra note 51. Weighted Lotteries in Life and Death Cases. The Numbers Should Count. Phil. at 85. since we are not concerned with loss of objects. Wasserman & Strudler. 293 (1977). Jens Timmermann. equal respect for the marginal or additional people in the larger group (whose claims are not balanced or “neutralized” by conflicting ones) requires saving the larger group.54 law. see. The Individualist Lottery: How People Count.g. e. Innumerate Ethics. David Wasserman & Alan Strudler. 79 J.. Derek Parfit. 285 (1979). e. 52. John M. Gregory S. whereby each group’s chances are proportionate to its size. 439 (1982). Even if losing one’s life is a loss to that person. Rather. Iwao Hirose. See. 7 Phil. The argument implies that when facing a choice between saving one person and saving a group of five. 54. On these and other puzzles.. the discontinuity brought about by setting thresholds arguably leads to strange moral puzzles. supra note 46.threshold deontology and its critique 55 people are valuable. at 14.53 Taurek’s counterintuitive argument is therefore theoretically problematic. thus legitimizing the torture and saving the lives of all people?56 53. when facing a choice between saving one person and saving a whole city). Must the torture stop the moment the terrorist (or anybody else) reduces the number of threatened people from x to x–1? And if only x–1 people are at risk. Sanders. See. Sanders. Why the Numbers Should Sometimes Count. 3 (1988). at any rate under some plausible deontological theories. at 900–05. but also—and primarily— for absolutists. this argument does not rule out threshold deontology tout court. See also Judith Jarvis Thomson. see Alexander. Hirose. 17 Phil. however. it is permissible to save the larger group. yet insisting that when the difference exceeds a certain threshold (for instance. First. See Hirose. breaking a promise or causing mild pain to one person in order to save the life of another. 55. & Pub. could the police justifiably lure one more person into danger. Moderate deontology can actually mitigate this counterintuitive conclusion by conceding that tossing a coin (or conducting a weighted lottery) is the right procedure as long as the difference between the group sizes is not too large. Aff. that it is morally correct to torture a terrorist’s mother (thereby putting pressure on the terrorist to reveal where he planted a bomb) to save the lives of x people but not to save the lives of x–1 people. that even accepting the “innumerability” argument does not deal moderate deontology a fatal blow. for example. Suppose. but it would not rule out. John T. an agent must not opt for the latter but rather toss a coin. It is worth noting. supra note 53. for example. e.55 Puzzles Finally. . 56. The Realm of Rights 166–67 (1990). Accepting this argument would at most rule out killing one person to save the lives of a large number of other people (and possibly any other infringement of a constraint aimed at protecting comparable interests). one should save more people rather than less (at least sometimes).54 Second. supra note 5. the counterintuitive implications of Taurek’s argument are troubling not only for moderate deontologists. supra note 5.g. and institutional considerations either justify somewhat troubling. While in the final analysis. they do not necessarily preclude such things as silencing harmful expressions. 57. The problem of transforming gradated. including such intrinsically important values as autonomy. at least on the factoral level. See infra pp. Concluding Remarks While we recognize the challenges facing deontology in general and moderate deontology in particular. and loyalty. human dignity. or breaking a promise. the next chapter examines whether there is a difference in this regard between personal and public morality. • D. The compatibility of moderate deontology with commonsense morality makes it particularly apposite to legal analysis and policy-making. Threshold constraints and options are an indispensable part of any acceptable factoral moral theory. and morality These (somewhat gimmicky) examples do not seem dispositive within the legal context. qualitative outcomes would pervade the legal system even if it were purely consequentialist.57 Before proceeding to show how such constraints and options may be combined with economic methodology. economics. they force one to consider the truly relevant moral factors. 77–78. discontinuous outcomes. paternalistically limiting people’s freedom. or lead to the setting of more or less vague standards to be applied on a case-bycase basis. quantitative differences into discontinuous.56 law. pragmatic. . we conclude that moderate deontology is more attractive than consequentialism. where a myriad of normative. are inapplicable in the public sphere. Utilitarianism as a Public Philosophy 60–77 (1995). are very often unclear. judges. consequentialism is the appropriate moral theory for legal policy-makers.1 Relatedly. the state fails to deter offenders and protect their victims. impartiality and impersonality are desirable virtues for the state and for legal policy-makers.2 As for the intending/foreseeing distinction— which deontologists often rely on to justify the infliction of harm that is a mere side effect of preventing greater harms from befalling other people— it is claimed that such a distinction cannot meaningfully be applied to the state. and Life-Life Tradeoffs. and unverifiable. and between intending harm and merely foreseeing it. such as parliament members or members of a school board. Goodin.• three Private and Public Morality • A. 703. Cass R. it has been argued that the distinctions central to deontology. 57 . The mental states of decision-makers within public institutions. it cannot evade responsibility for the suffering of the latter on the ground that it merely allowed this suffering and did not actively inflict it. and even if a clear mental state 1. Whereas an individual may not be morally responsible for not helping people she does not know (or even people she knows but with whom she has no special relations). 2. if by imposing overly lenient penalties. such as legislators. For example. the state bears responsibility for the well-being of all people. General it has been argued that even if moderate deontology is the right moral theory for individuals. whose role is to advance the general good. Sunstein & Adrian Vermeule. L. unobservable. Rev. 58 Stan. and for academic policy analysts. and regulators. such as between actively doing harm and passively allowing it. Robert E. While the impersonal nature of consequentialism may be irreconcilable with the notion of people as separate. Omissions. autonomous agents. 716–28 (2005). Is Capital Punishment Morally Required? Acts. 5 This vagueness should make one wary of hinging the applicability of deontological constraints and options on this distinction. L.U. while others are clearly public. it lacks intrinsic normative significance. See.g. 3. the private/public distinction is vague and easily manipulated. and between the state’s role as an actor and its role as the provider of legal norms. While this concern may be of limited importance for abstract moral analysis. See. . The Private/Public Distinction The claim that consequentialism is the right moral theory for public decisionmaking. 103 Colum. many decisions and actions are distinctively personal. while Congress’s enactment of a law is obviously public. other characteristics actually make it more compelling in this sphere. Some of them conflate and even confuse the distinctions between deontological constraints and deontological options.. In light of the growing role of private entities in performing governmental functions (see. even if moderate deontology is appropriate for individuals. Athletic Ass’n. between individual and collective decision-making. 288.g. it is more troubling when pragmatic.[only] the set of negotiated relationships between the public and the private”). Brentwood Acad. Duncan Kennedy. 1349 (1982). . 4. The Stages of the Decline of the Public/Private Distinction. Ruth Gavison. Gillian E. Privatization as Delegation.3 Though attractive. as has been repeatedly pointed out. e.4 In fact. However. e. L. Pa. there is no sharp dividing line but rather a continuum between private and public entities.g.Y. The Private Role in Public Governance. and the State. 13 Legal Theory 69 (2007). Rev. 531 U.. 5. and morality may be verified and attributed to institutions. 75 N. Metzger. economics. A private person’s decision whether to keep her promise to join someone for lunch is personal.S. • B. 543. Jody Freeman. the validity and clarity of the private/public distinction is put into question. presupposes that the two spheres are distinguishable. between morality and law. v. Indeed. See. 45 Stan. Rev. these arguments are ultimately unsuccessful. Secondary Sch. L.58 law. Tenn. 1369 (2003)). 302 (2001). 548 (2000) (arguing that there is “no purely private realm and no purely public one . 130 U. Rev. 1367. Rev. e. Feminism and the Public/Private Distinction. this chapter demonstrates that while some features of public decision-making indeed render deontology less appealing in the public sphere.g.. . legal policymaking is concerned. Intending. Foreseeing.. Straightening out these confusions. David Enoch. L. e. 1 (1992). possibly by a gradual decrease of the magnitude of the thresholds constraints and threshold options (and a growing inclusiveness of benefits and costs taken into account in determining the permissibility of the action). if the crucial distinction is between decisions made and actions taken by a single person. Apparently. on the one hand. the latter can conduct a thorough CBA of every action or inaction. For one thing. then once again there is a whole spectrum between the two extremes.7 The elusiveness of the private/public distinction renders the “conversion” from deontology in the private sphere to consequentialism in the public sphere rather problematic for legal policy-making. 41 San Diego L. another difference between individuals and the state is that unlike the former. and parents are expected to care for all their children. states do not have unlimited resources to conduct CBA in each and every case. 949. if the crucial distinction is between autonomous individuals who do not bear responsibility for the well-being of all people and public authorities that presumably shoulder such responsibility. Rev. Thus. raise the same agent-relative concerns as do individuals. the gradual move from the private to the public sphere may possibly be accompanied by a gradual move from moderate deontology to consequentialism. many actions and decisions are clearly private or public. misguided. and collective decisions and actions on the other.private and public morality 59 Specifically. respectively. and public decisions are made by a single person. yet it does not rule out this conversion altogether. and even more so local authorities. see infra pp. At the same time. .8 The following discussion thus sets aside the imprecision of the private/public distinction and assumes that it is viable. 7. On the size of deontological thresholds and the relevant types of benefits and costs.6 It is quite clear that a state is not responsible for the well-being of the citizens and residents of other states to the same extent that it is responsible for the welfare of its own people. 93–96 and 86–93. then state governments. 953 (2004). they are not immune to this objection anyway). corporate officers are expected to take into account the well-being of all of the corporation’s shareholders and employees. however. First. Similarly. This argument is. For another. Second and more fundamentally. the objection that consequentialism is impracticable because it is impossible to know all the consequences of one’s actions and inactions is less powerful when it comes to the state. 6. teachers are expected to pay heed to the success of all their students. as often private organizations consist of many people. 8. the justification for deontological constraints (and options) does not rest primarily on the impracticability of universal consequentialism but rather on the intrinsic immorality of actively/intentionally harming other people (and since deontologists do take consequences into account. The Jurisdiction of Justice: Two Conceptions of Political Morality. Larry Alexander. 10 Much of their argument focuses on the role of the state as the provider of legal norms and rests on the difficulty of attributing a mental state to the state— two issues we will soon address. According to the consequentialist justification. or something of the sort. supra pp. between intending harm and merely foreseeing it.”11 None of these justifications—so the argument goes—holds true with regard to the government.60 law. people have a presumptive right to live their lives without being required to assist others. economics. According to the autonomy argument. Even if it is true that the government cannot shirk its duty to promote the well-being of all citizens (and hence. In this vein. it does not follow that the government is not subject to deontological constraints (in which context the doing/allowing distinction is relevant). 11. . Enoch. “an all-things-considered assessment of consequences justifies the act/omission distinction. Sunstein & Vermeule. in this sense the doing/ allowing distinction is inapplicable or less appropriate). and morality • C. Id. which they believe do not apply in the public sphere. 737–39. deontology must resort to a distinction between actively violating a constraint and merely allowing it. 10. at 720–28. deontology focuses on the morality of actions and maintains that it is (at least sometimes) forbidden to violate a constraint even if the violation would have reduced the number of future constraint violations. supra note 2. The first argument confuses deontological options and deontological constraints. To differentiate between a person’s duty to refrain from the current violation and her duty not to bring about the other violations (due to avoiding the current one). Such a requirement would greatly interfere with people’s liberty and should therefore be avoided. at 97–99. at 725. supra note 3. 43–46. Doing and Allowing As explained above. Cass Sunstein and Adrian Vermeule have argued that the very distinction between doing and allowing is not intelligible when it comes to governments and that even if it is intelligible. at least in most domains. The remaining points they make relate to autonomy-based and consequentialist justifications for the doing/allowing distinction. It is logically possible and normatively plausible that governments are morally required to actively 9.9 Challenging the relevance of these distinctions in the public sphere is therefore an effective way to challenge the appropriateness of deontology as a public morality. it is morally irrelevant. Terror. people deserve to be treated as ends. parents may be said to have no options (or very limited ones) vis-à-vis their children. 632–34 (2007) (“Victims have an interest not only in what happens to them but also in what permissibly may be done to them. but there are no cases in which it is permissible not to maximize the good (no options). 14. Rev. L. 13. If there are constraints but no options. In the same vein. See Adil Ahmed Haque.12 The basic justification for deontological options is the autonomy and separateness of agents. From that angle. then sometimes the government is required not to maximize the good (constraints). between local 12. The same is true regarding the intending/foreseeing distinction discussed below: It makes a difference if one is harmed inadvertently.” The answer to this objection is that the denial of options for the government does not rule out the existence of one type of options: the option not to maximize the good when such maximization involves the violation of a deontological constraint. L. this does not mean that parents are not subject to constraints vis-à-vis their children. 210. or purposefully. as a regrettable side effect of attaining a legitimate goal. id. a basic justification for deontological constraints lies in the autonomy and human dignity of individuals who may be affected by an act. Even if the physical harm (including death) is identical in both cases. both by other individuals and by the state. whose raison d’être is to safeguard and promote people’s welfare. Parents are responsible for promoting the welfare of their children even when it entails the taking of active measures. However. and this justification does not apply to the government. one may object that constraints necessarily entail options. A parent’s duty to maximize the welfare of all of her children does not imply that she may kill one of them and harvest that child’s organs to save the lives of the others. Torture. Eric Blumenson.13 An analogy may be drawn in this respect between the government and a parent. In that sense. As regards the logical possibility. the state’s duty to prevent harm from befalling its citizens does not imply that its active infliction of harm and its failure to prevent harm are morally equivalent.14 While the special relations between children and parents. At the same time. only the latter disrespects the injured person as an autonomous human being. Killing in Good Conscience: What’s Wrong with Sunstein and Vermeule’s Lesser Evil Argument for Capital Punishment and Other Human Rights Violations?. and the Inversion of Moral Principle. Rev. This looks impossible as a matter of the logic of “it is required that” and “it is permissible that. 222–26 (2007). and not as mere means. at 631–32. 613.private and public morality 61 promote the well-being of all of their people and at the same time are subject to the moral duty to refrain from actively harming them. Haque. 10 New Crim. when the harm is intended as a goal in itself or as a means to attaining another goal. . not only in their fate but also in their status [as independent and inviolable persons]”). 10 New Crim. The active infliction of an injury is disrespectful of the injured person’s dignity and autonomy in a way that the mere allowing of such injury is not. Bruce Ackerman. and citizens. namely that the consequentialist. this argument falls short for two additional reasons. These constraints hold irrespective of such relationships. and between citizens and the state greatly reduce the availability of options to parents. e.g. Besides the confusion between options and constraints.. Torture. First. vital in the public sphere. 585–601 (2008). municipalities. residents. Terror in the Balance: Security. such as Kant’s universalizability requirement or some sort of contractarianism. granting governmental agencies carte blanche to torture people suspected of withholding information about future terrorist activities. 24–27. to the extent that one predicates the prohibition on actively harming other people on consequentialist considerations. the present argument is indeed relevant. state violations of basic human rights are arguably more harmful than private violations 15. see Eric Posner & Adrian Vermeule. 86 Texas L. 16. economics. Second and more important. Under realistic assumptions about possible errors and biases of government officials. rather than less. Liberty. David Cole. such as ruleconsequentialism. 569. Normative Ethics 17–22. thus to the extent that constraints on the factoral level rest on foundational consequentialism. the risks involved in allowing governmental bodies to violate people’s basic liberties. See Shelly Kagan. and the Courts 187–93 (2007). Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism 6 (2006).15 Our proposed integration of deontological constraints with economic analysis is compatible with such theories. or to lie are much greater than those involved in allowing private people to do the same. with Apologies. For instance. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism 228 (2003) (stating that governments overreact in times of crisis). See. We then turn to Sunstein and Vermeule’s second argument. . whenever it is believed that the total expected decrease in the well-being of the potential victims of those activities is greater than the expected total decrease of the well-being of the tortured. it only applies to those theories that seek to ground deontology on the factoral level on foundational consequentialist theories. The present argument would not appeal to these ethicists.62 law. it is safe to assume that most advocates of factoral deontology ground it on nonconsequentialist foundational theories. For an opposite position. supra pp. Crocker. 189–94. Thomas P. However. it seems that this constraint is more. to treat people unevenly. “all-things-considered” justification for the doing/allowing distinction applies only in the private sphere. these relationships do not necessarily detract from the constraints against actively harming people. and morality residents and the municipality. and states (vis-àvis their children. 299–303 (1989). seems extremely dangerous even from a (rule-) consequentialist perspective.16 In addition. Rev. respectively). Deterring Murder: A Reply. Blumenson. it may be asked whether such an 17. probably most are made by single decision-makers.17 Both the autonomy-based justifications for deontological constraints (coupled with the basic distinction between deontological options and constraints) and rule-consequentialist considerations thus clearly undermine the argument that the doing/allowing distinction is inappropriate in the public sphere. at 226–34. a judge deciding on the legality or constitutionality of an action) can reliably determine the mental state of the decision-maker. the overwhelming majority—pertain to concrete cases. Decisions and actions in the public sphere are varied and multifaceted. and the alleged absence of intrinsic normative significance to the mental states of organizations. The critique focuses on the difficulty of attributing such mental states as intention and foresight to collective bodies. L. Sunstein & Adrian Vermeule. While some decisions are made by collective bodies. 18.18 To assess these arguments. 847. A different question is whether an external observer (in particular. Rev. • D. Enoch.private and public morality 63 because they not only harm the individual person but also adversely affect the basic tenets of a liberal democracy. Intending and Foreseeing Along with the attack on the doing/allowing distinction. the difficulty of observing and verifying those mental states. 58 Stan. Cass R. One question that should be asked with regard to any public decision (general or particular. . 849–52 (2005). scholars who argue that deontology is inappropriate as a public morality also target the relevance of the intending/foreseeing distinction in this sphere. including the intending/ foreseeing distinction. and the next section discusses in greater detail the third (whose significance exceeds the intending/foreseeing distinction). supra note 3. This section focuses on the first two distinctions. and between the provision of legal norms and the performance of particular acts. supra note 14. While some of them lay down general norms. others—in fact. between collective and single decision-making. including states. Even if one answers both questions affirmatively. collectively or singly made) is whether the normative principles guiding the decision should be deontological. one should take into account several distinctions: between the actor’s perspective and the perspective of an external (often judicial) reviewer of the act. McCloskey. 20.J.C. Morris Clark. it should make no difference whether she makes the decision on her own or participates in a collective decision process.64 law. A Non-Utilitarian Approach to Punishment. On these difficulties and the ways to overcome them. An Outline of a System of Utilitarian Ethics. . in J. 466.J. Furthermore. 953. Rev. 21. J. Utilitarianism—For and Against 69–71 (1973). some of the best-known and oft-discussed examples in the consequentialism/deontology debate—such as the framing by the police and executing of an innocent person to prevent riots in which many people will be killed19 and the “survival lottery” scheme for random selection of forced organ donors out of the general population. 413. 66 Phil. John Harris. 15 San Diego L. Private Speech. McCloskey. The Survival Lottery. Peter Singer. 974–78 (1978). Deontological morality requires her to shun and to vote against the intentional framing of an innocent person as a means to thwart deadly riots.C. 63 U. and whether it should be deemed morally significant. McCloskey. including the state itself. she is required to cast her vote against intentionally killing people to harvest their organs as a means to save others (moderate deontology requires one to oppose these acts at least as long as the deontological threshold is not met). An Examination of Restricted Utilitarianism. It seems useful to start our inquiry with the decision-maker’s own moral perspective. there seems to be no fundamental difference between decisions made in a personal capacity and decisions made in one’s public role. Shifting from the decision-maker’s own perspective to that of an observer assessing the morality of the decision may raise epistemological concerns regarding the intentions of the former. Rev. 255–56 (1965).20 pertain to decisions plausibly made by public officials. 8 Inquiry 249. Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.J. see Andrei Marmor. 438–42 (1996). Utility and the Survival Lottery.21 19. Smart. From this perspective. H. A person intentionally instructing another to shoot innocent civilians is violating a constraint whether she is a private person or an army officer. and morality observable and verifiable mental state can be attributed to the pertinent governmental body. Smart & Bernard Williams. Identifying intentions is particularly difficult with regard to decisions made by collective bodies such as parliament.S. J. L. 50 Philosophy 81 (1975). A decision to do these things violates the constraint even if the decision is physically executed by another person who follows the decision-maker’s instructions. 468–69 (1957). Legislative Motivation and Fundamental Rights in Constitutional Law. Elena Kagan. Rev. In fact. T. from the decision-maker’s perspective. economics.L. Sprigge. Chi. 8 Inquiry 264 (1965). Likewise. 2005). 52 Philosophy 218 (1977). H. A Utilitarian Reply to Dr.J. Interpretation and Legal Theory 122–26 (2d ed. or in the public sphere. See. the government is liable in tort for claims “arising out of assault. In this regard. at 974). it makes no difference whether the interpreter is a deontologists or a consequentialist.private and public morality 65 Issues of observability and verifiability are even more troubling when the external observer is a legal decision-maker. 1 Kathleen F. In criminal law. or the judgment (Cf. e. .” (torts that typically require specific intentions). Textbook of Criminal Law 79–82 (2d ed. such as a court assessing the legality of an action. malicious prosecution. including individuals in their organizational role (such as corporate officials) and on the mental states attributed to the organization itself. e. and even contract law. However.A. 2008). courts have long invalidated administrative actions based on ulterior motives or aiming at extraneous purposes. slander. the law can determine the mental state of decision-makers in the public sphere and attribute them to public bodies.U. the policy.g. battery. 79 B. who is constrained by various evidentiary rules. Khanna. 1983). in both private and public spheres. 355 (1999).. legal liability often hinges on the determination of subtle mental states of individuals. Under American law (28 U. or interference with contract rights. Rev. supra note 21. § 2680(h)). may be held liable for mens rea crimes. Brickey.22 A multitude of doctrines and techniques have been developed to deduce subjective mental states from objective facts and circumstances. or to make arrests for violations of Federal law. a governmental policy or a court judgment. misrepresentation. with regard to acts or omissions of “any officer of the United States who is empowered by law to execute searches. Corporate Criminal Liability 39–63 (2d ed. Whenever one has to determine the meaning of a statute. Were motives and intentions truly indiscernible when it comes to governmental bodies. Is the Notion of Corporate Fault a Faulty Notion?: The Case of Corporate Mens Rea.S. Such determinations are imperfect and incomplete. Their Officers and Agents 129–30 (2d ed. abuse of process. it would have posed a serious problem not only to deontologists but also to consequentialists. torts.. deceit. false imprisonment. . to seize evidence.23 In a similar fashion.24 Using various direct and indirect techniques for inferring intentions and other mental states (or objectifying them). false arrest. See. such determination should plausibly take into account the motives and purposes underlying the statute. libel. Courts regularly engage in exposing or attributing intentions even when decisions are made collectively. including crimes requiring specific intent”). L.S. 1991) (“[I]t is now generally acknowledged that corporations .C. Corporate Criminal Liability: A Treatise on the Criminal Liability of Corporations.g. 24. V. governmental decisions disregarding relevant considerations. whether in private or criminal law. . Clark.” 23. but the difficulties are not insurmountable. these difficulties characterize the legal process in general and are not necessarily connected to the private/public distinction. Glanville Williams. 22. Amanda Pinto & Martin Evans. 30.27 In a similar vein. in the context of limitations on freedom of expression. infra pp. are not entitled to similar privacy privileges. 1 Oppenheim’s International Law 1 27–28 (9th ed.”26 Specifically. 814–25. the establishment of customary international law requires not only a consistent practice by states over time but also opinio juris: following the practice from a sense of a legal obligation. 18. .U. place. Jr.. acting in their public role. American Constitutional Law 814–15 (2d ed. See infra pp. . & William T. Jeffrey Jowell & Andrew Le Sueur eds.31 governmental officials.32 True. because of that person’s race or other protected status .29 and international law takes into consideration the motives of states.. Laurence H. Restatement of the Law. 1. or manner of expression that abridge freedom of expression as a mere side effect (the validity of which is examined according to a balancing test). 2001) (American law). Laurence H.. See also Kagan. Alfred C. 27. e. at 789–804. L. See infra pp. . Id. in the context of judicial review of legislation and governmental actions. 213–18. Tribe.. . See. . Lord Woolf. 29. 1988) [ footnotes omitted]. 28.”28 Courts are increasingly willing to inquire into the motives of legislators. Robert Jennings & Arthur Watts eds. Tribe. Tribe. The Mystery of Motive. “the well-settled constitutional [right] not to be disadvantaged by government simply because of one’s race or sex . e. or arrest a particular individual . they have differentiated between restrictions on the time. Caleb Nelson. would be largely meaningless if courts were not free to inquire into whether a governmental official or body did in fact discharge a given employee. . 32. 83 N. Administrative Law 527–29 (2d ed.g. at 442 (discussing the case of discharging an employee because of union activity). supra note 21. 3rd. it may be argued that while inquiring into the motives of private people sometimes infringes their privacy and autonomy (for instance. and the use of such restrictions as a means to limit the dissemination of certain ideas or information (where the judicial scrutiny is much stricter). 1996). Aman.g. and morality and so forth. . 244–46.30 Furthermore. See.. De Smith’s Judicial Review 265–94 (6th ed. at 17. Judicial Review of Legislative Purpose. supra note 28.66 law. on Foreign Relations Law of the United States § 102(2) & comment C (1987). This is not to say that the law cannot or should not proscribe practices causing a ‘disparate impact’ on certain groups. economics. Rev. American courts “have routinely inquired into the motivation underlying executive or administrative decisions in a variety of contexts. a 25.. 2007) (English law). 180–81. for example. 1993 Supreme Court Rev.Y. when it comes to their motives in choosing a spouse). Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice. For instance. 1784 (2007). 26. Mayton. in order to promote equality.25 Thus. 31. 225–56. for example.” members of the legislative body may certainly have shared intentions—the denial of which “would render the phenomenon of legislation a rather mysterious achievement. are enacted with relatively specific intentions. at 122–26. When a decision process.34 For this limited purpose. Consequentialists may insist that these objective tests are not meant to serve as proxies to the decision-makers’ intentions but to bring about the best outcomes. one need not read the minds of the commanders approving the action nor the pilots executing it. 15 San Diego L. absent an improper motive. one need not inquire into the intricate thinking processes of government officials. 2001). Cf.35 Even if there is no such thing as “the legislator’s intention. it may be sufficient to identify the mental state of the person or people in one stage to nullify the validity of the entire process. and that these reasons may be comprehended by other people. the courts have developed objective tests that serve as proxies for motives. but rather a regrettable side effect of saving the lives of the terrorists’ intended victims on the ground. See infra pp. the shooting down of a hijacked civilian aircraft that is expected to be used as a deadly weapon against thousands of people (as in the suicide attacks against American targets on September 11. this hurdle may be overcome. 37. However. at least in certain cases. consists of several necessary stages. 34.private and public morality 67 countervailing consideration is the institutional requirement of respect between governmental branches. 35. Introduction: Motivation and Constitutionality. at 120)). one may confidently assume that killing the innocent passengers on board the aircraft is neither the goal of shooting it down nor a means to achieve any goal. It suffices to assume that governmental bodies. are doing things for reasons. including legislation. Rev. 36. or an administrative action would have been taken. but this claim sounds a bit strained. supra note 21. Arguably. absent 33. 938 (1978). supra note 21. the very structure of First Amendment law and the various distinctions it draws are best understood as a set of objective tests to determine whether a certain statute would have been enacted. A powerful case has been made for the proposition that the best way to understand First Amendment law in the United States is as “a kind of motive-hunting. Marmor. See Lawrence A. supra note 21.37 To arrive at this conclusion. 166–69. . Kagan. Marmor. In the absence of special evidence to the contrary. 925. which militates against the courts openly inquiring into the subjective intentions of legislators and high-ranking officials. including the legislature. at 119–39 (arguing “that laws.”33 Rather than directly discussing motives. Alexander.”36 Take. At the same time. and that this is a matter of fact which is discernible through an ordinary fact-finding procedure” (id. See Carol S. the mass killing and destruction resulting from the carpet bombing of a city where no military targets exist (nor are believed to exist). . 40. . and morality special circumstances. 751. 78 N. is not a side effect but rather the intended outcome of the bombing. 1155 (2003) (indicating that “objective constructions of intention are not uncommon in discussions of double effect in the philosophical literature and are especially familiar in law. say. 39. is basically irrelevant. 38.68 law. Deontology.”). See G. Celia Wells. L. whereas the possible (or even certain!) deaths of victims of murders due to insufficient deterrence are at most a foreseen side effect of such insufficient deterrence. L. In this sense. what ultimately motivates the decision-maker is.M. the desire to win the next elections (through saving the lives of thousands of people in the first example or winning the war in the second). Speech. to the enactment of a statute permitting a commander to shoot down civilian aircrafts in the above circumstances or authorizing carpet bombing of cities during war. it seems plausible that an organization or an institution should neither be treated holistically as if it were a human being nor as a mere aggregation of individuals (so that knowledge. have mental states. possibly serving as a means to breaking civilian morale. Rev... policies by considering their rationales. and intentions can only be attributed to each of them separately). and Double Effect. Without getting into details.” and arguing that one can evaluate the “justifiability of .39 Moreover. reprinted in Moral Problems: A Collection of Philosophical Essays 393. 1979). Much has been written about the metaphysical question of whether organizations in general. foresight. Corporations and Criminal Responsibility 151 (2d ed.E. 2001).38 The possibility that in any of these two examples. economics. Rev. To apply the intending/foreseeing distinction to governmental bodies. and the mass killing resulting from the carpet bombing is still a means to an end. James Rachels ed. even though we lack information about the subjective mental states of the particular people who will later implement these policies .Y. one need not only identify or attribute mental states to the individuals playing various roles within governmental bodies but to the governmental bodies themselves. even if the decision-maker’s ultimate goal is to win the elections. Death. and the state in particular. 403–05 (3d ed. intending and foreseeing are somewhat objectified. Steiker. and the Death Penalty. Similarly. the death of the convict is the state’s intended outcome (or a means to attain deterrence). The same analysis applies. mutatis mutandis. 1135. Seana Valentine Shiffrin.U. killing the passengers on board the aircraft is still a regrettable side effect. 756–64 (2005). 58 Stan. . War and Murder. it is rather obvious that in the case of capital punishment. .40 The former notion may undesirably hinder the attribution of personal— moral and legal—responsibility to individual members of the organization. Capital Punishment Is Not Morally Required: Deterrence. Anscombe. No. . artificial. 42. mentioned earlier. governmental branches may or may not be taken to have intentions. with no autonomous means of perception. Philip Pettit. id. feelings. The fact that the mental state of organizations.g. including governmental bodies.”42 They are. possibly preclude the attribution of responsibility to anyone else). it is normatively implausible that such mental states should have intrinsic moral significance. and intention to governmental entities.. 68–80 (Sarah Stroud & Christine Tappolet eds. We fail to see why this is the case. is sometimes complex or is the product of intraorganizational struggles does not seem a sufficient reason to deprive it of 41. Akrasia. e. in a sense. 191–202 (2000) (discussing the conditions under which intentions may be ascribed to collectives). that even if it is metaphysically meaningful and epistemologically feasible to attribute mental states such as knowledge.41 This is done in a wide range of contexts and may be done in the present context as well. John Searle. need not be attributed to the state). Collective and Individual. State intentions—so the argument goes—are highly complex and. at 78–81 (doubting that corporations can be morally blameworthy). at 86. This brings us to the last argument. it is often sensible to attribute intentions to governmental bodies. therefore. by matters of institutional design. 2003) (discussing the necessary conditions for the existence of an intentional agent and concluding that public bodies. The Construction of Social Reality 23–26 (1995) (endorsing the notion of collective intentionality). the desire to win the elections. They are “determined by the intentions of individuals. As the above examples sought to demonstrate and as some philosophers have powerfully argued. Collective and Corporate Responsibility (1984) (arguing that corporations are moral agents). Wells. business corporations and private associations may all satisfy these conditions.. namely.private and public morality 69 The latter may undesirably preclude the attribution of responsibility to the organization itself (and given the division of roles and functions within large organizations. The intentions attributed to governmental bodies need not be identical to the motivations of the decision-makers (and thus. For different purposes. Note that attributing moral agency to organizations and to the state does not ipso facto imply that they should also be treated as moral patients. or spontaneous inferential dispositions). Christopher Kutz. [and] by internal power struggles. unlikely to have any intrinsic normative significance. See. supra note 3. Complicity: Ethics and Law for Collective Age 107–12. French. Peter A. by facts about the decision-making mechanism. in Weakness of Will and Practical Irrationality 68. despite the fact that they operate only by courtesy of individual contributions. foresight. Such attribution facilitates the application of the intending/foreseeing distinction to governmental bodies. Enoch. . and morality intrinsic normative significance. supra note 12. See also infra pp. the threshold that would have to be met to render such an action permissible will be higher in the case of intended harm than in the case of a merely anticipated one. Thomas Schelling. See Haque. or the Art of SelfManagement. Acting and Enacting The arguments we have critically examined thus far aimed to establish that even if deontology is the right personal moral theory. whether by a single official or collectively. . To be sure. See infra pp. 213–18. 135–75. that for some purposes.44 All we argue here is that. Governmental bodies do things for reasons. e. 290 (1978). 45. See. it matters whether innocent people are harmed as a means to some legitimate end or merely as a side effect. and normatively to decisions and actions made by public bodies. A more modest claim might be that 43. to the extent that it makes a difference whether killing the innocent is an intended outcome or merely a foreseeable one. economics. Egonomics. Plausibly. It may still be impermissible to target a terrorist if it is highly probable that dozens of innocent people (who may be unaware of the terrorist’s presence in their neighborhood) will be killed as well. this distinction applies to the state. Assuming (as we do in the present discussion). then it is unclear why these actions cease to infringe this constraint once they are carried out by the police or by the state’s air force (even if a heated debate between decision-makers preceded the decision to frame the innocent or to kill the civilians). Rev. 166–75.43 If one accepts that the framing of an innocent person by a private person and the indiscriminate killing of civilians by a terrorist infringe the deontological constraint against intentionally harming other people. the fact that harming the innocent is a side effect of attaining a desirable goal does not necessarily legitimize the action. and these reasons are normatively significant.g. epistemologically.45 We thus conclude that the intending/foreseeing distinction can and should apply metaphysically. then we do not see why the intentions to frame the innocent or to bomb civilians are normatively insignificant.70 law. 44. it is inappropriate for the state and other public bodies. at 635–36. Econ.. including judging the moral permissibility and legality of such actions. 68 Am. • E. It may be noted that even the mental state of a single person is often rather complex and may reflect internal struggles. See supra pp. a legislator simply cannot infringe a deontological constraint. Cf.46 According to this claim. the state’s position is akin to that of an ethicist who lays down general norms of behavior. in its legislative role. 1523. the state’s position is parallel to that of a moral agent and thus subject to deontological constraints. see Michael S. Laws. at 94. Moore. which is carried out on much higher levels of abstraction. Rev. Rights. Persons. 50. Just as the ethicist is not subject to agent-relative constraints when formulating a moral theory. legislation is distinctively future oriented. For a laconic argument along these lines.49 Finally. Meir Dan-Cohen. and Organizations: A Legal Theory for Bureaucratic Society 136–59 (1986). and impersonality. This argument somewhat resembles the suggestion that moderate deontology on the factoral level should be grounded in rule-consequentialism on the foundational level. Richard Craswell.private and public morality 71 deontology is an appropriate moral theory both for private actors and for public ones (such as policemen and judges) but not for legislators. n. the legislator “will never be guilty of anything more than merely failing to prevent a harm that is actually caused by others. 47. the direct interpersonal relationships existing among private individuals and between public officers and the persons subject to their power (such as a police investigator and a suspect. while it may be wise to formulate legal rules that put constraints on people’s behavior—including the state’s conduct as an actor—the legislative process itself should strive solely to maximize overall good outcomes. 48. 245. and this arguably means that they should concentrate on outcomes. whereas particular governmental acts (such as police investigations or court proceedings) often focus on ex post examination of people’s behavior.48 Moreover. generality. & Mary L. one should distinguish between the role of the state as an actor and its role as the provider of legal norms. and general policy guidelines are meant to affect future conduct. Enoch.47 Several characteristics of legislation seem to render this claim appealing. 49. esp. Cf. supra note 3. Kaplow and Shavell on the Substance of Fairness. 48 Wm. 1551–52. then at least according to the doing/allowing distinction. 264 (2003). Four Reflections on Law and Morality. a judge and the litigants) are largely missing in the legislative process. so should the legislator be free of such constraints. To begin with. it has been argued that if people who follow the legislator’s norms actively inflict harm on other people.79 (2007). According to this claim. 46.”50 If this is so. regulations. While as an actor. Legal Stud. 32 J. 24–27. . these people are not subject to deontological constraints and should thus reason as consequentialists.72 law. The argument concedes that deontological constraints should apply to particular governmental actions. Cf. 51. difficulties that by now we assume can be overcome. Even when a judicial or an administrative decision does not formally constitute a precedent. First. . and moral philosophers regularly engage in laying down and inculcating general norms of conduct for people to follow. 58–59. When a court sets a precedent. While the vagueness of the acting/enacting distinction is not fatal. economics. supra pp. in their “legislative” or educational role. the present argument does not rest on the epistemological difficulties of identifying or attributing mental states to the legislator. it actually transcends the private/public morality debate and carries much broader implications. and morality A few preliminary comments are in order before we delve into the merits of these arguments and further discuss the appropriateness of applying deontological morality to the legislature. Second. thus having some “legislative” significance. whether performed by a single public official or by a collective body. However. According to the argument under discussion. Parents. While the present claim may seem more compelling than the previous ones. it both determines the outcome of a specific case and establishes more or less general rules. One practical difficulty with this claim is that the dividing line between laying down general norms and performing particular actions is not always clear. it ordinarily gives rise to expectations—and often to a legal duty—to treat like cases alike in the future. This is particularly true of the judicial and executive branches.51 The first characteristic of legislation noted as supporting the claim that it should rest on consequentialism was the lack of direct interpersonal relationships between the legislature and the law’s addressees. Moreover. and for similar reasons. such relationships are immaterial in the context of most deontological constraints: one must not intentionally/actively harm others even if they are complete strangers. Third. it should make one wary of adopting it as a criterion for the applicability of deontological constraints in legal policy-making. the present argument does not hinge on the collective/single decision distinction. preachers. we maintain that it should be rejected as well. according to at least some of the rationales underlying the present argument. and at the same time denies the applicability of constraints to legislation even if the legislator consists of a single person. educators. the few constraints that do rest on special relationships. L. In this case. that the legislature is not subject to constraints when it strives to maximize good outcomes. whereas a public official who. it seems plausible that both the legislator and the people who actually discriminate infringe the constraint against intentionally/actively harming other people’s dignity. For instance. This assumption is unfounded. Possibly. See also infra pp. not mutually exclusive. encouraging. We then turn to the argument that by its very nature. 1503 (2000). namely its distinctively future-looking nature. Anderson & Richard H. then no other entity can concurrently infringe a constraint by actively/ intentionally ordering. Thus. Pildes. indeed implies that outcomes should be a primary concern for the legislature. a statute authorizing the killing of innocent people infringes a deontological constraint. the second characteristic of legislation. may actually apply to the legislature. In the same vein. The same is true of a statute that explicitly permits improper discrimination between people on the basis of skin color or gender.52 Similarly. rather than the legislator. some constraints apply to public bodies even if they do not apply to private individuals. as a public official.private and public morality 73 such as the duties to keep one’s promises and to refrain from betrayal. ways in which a legislator may infringe a deontological constraint. see generally Elizabeth S. though. a statute that states the facts underlying its enactment or the purpose it aims to achieve may infringe the constraint against lying if the statements of facts or of the law’s purpose are 52. “I detest homosexual relationships” infringes no constraint. a law that overtly legitimizes race discrimination or that implies that men are morally superior to women arguably infringes a constraint even if it does not actually affect anybody’s behavior. This claim assumes that if one entity violates a constraint by doing/intending some harm. Sometimes. says the same thing does infringe a constraint. 148 U. regardless of how it will affect people’s behavior. . or facilitating that violation. notwithstanding the fact that the people carrying out the killing infringe a constraint as well. On expressive theories of legislation. Perhaps a private person who says. As the discrimination example suggests. 117–22. Pa. Expressive Theories of Law: A General Restatement. at least in liberal democracies where members of legislative bodies are elected on the basis of their declared agendas and trustworthiness. there are (at least) two different. the very enactment of a law constitutes such an infringement. It does not follow. the legislator cannot actively infringe a deontological constraint because it is always the people following its rules who cause the harm. Rev. 54 we maintain that both types of constraints on legislation not only are conceptually possible but also normatively plausible. in section 2 of the American with Disabilities Act (ADA). more suspects—rather than less— will actually be tortured by overly motivated or frustrated interrogators. Putting this difficult question aside. infringements of constraints by the law’s addressees. their very enactment by the state violates a deontological constraint. Possibly. This conclusion is straightforward when the very enactment of a 53. The legislation itself is incompatible with the respect a legislator must demonstrate toward people’s autonomy and human dignity. they may be found.74 law. there is no other way to save them. and the torture is not expected to inflict a lasting harm on the suspect. . the expected death of the victims is imminent. Suppose a legislator is a moderate deontologist who believes that suspects must not be tortured unless the lives of a large number of people could be saved by such torture. See also infra pp. Likewise. the probability of saving their lives is very high.53 The other way in which a law may arguably infringe a deontological constraint is by actively/intentionally bringing about. it may be argued that even if these rules will actually reduce the number of constraint violations by interrogators. even refraining from legislating a certain statute may infringe a deontological constraint if intended to allow constraint violations by citizens. or increasing the likelihood of.S. economics. While statements of fact are not common in legislation. 117–22. In the above example. it would actually reduce the number of tortures. it is not implausible as it may be that absent clear guidelines regarding the permissibility and impermissibility of torture. (While the last assumption is somewhat speculative.C. 42 U. compared to a legal regime in which torture is never permitted. there may be cases in which a legislator (including an executive laying down general guidelines and a court setting a general norm) would face a tension between these two types of constraints. Suppose further that if the legislator will lay down strict procedural and substantive conditions for the permissibility of torture. a law that explicitly legalizes race discrimination in all likelihood encourages such discrimination. 54.) In this case. and morality knowingly false. 12101 (2001). a statute authorizing capital punishment is likely to bring about the execution of convicts by the state. for example. Interestingly. Formulating a comprehensive theory of the relationships between constraint violations by the legislator and by the law’s addressees lies beyond the scope of our discussion. The same conclusion holds. or at least infringes. One possibility is that legislation that actively/ intentionally induces the violation of deontological constraints by the law’s addressees may be morally wrong. For our purposes. when the legislator actively/intentionally induces constraint violations. The same would apply to other legislative bodies. This notion is also compatible with the special duties the state bears toward its people. it is sufficient that typically. though in that case the picture is more complex. An opposite position would be that whenever a law actively/ intentionally increases the likelihood that the law’s addressees will violate a deontological constraint. the enactment of this law inevitably violates. The powerful measures used to enforce legal norms lend support to the claim that the legislator is indeed subject to (at least some) deontological constraints against inducing constraint violations by the people whose behavior it governs. infringes a deontological constraint. Substantive moral arguments are necessary to delineate the scope of the deontological constraints applicable to the legislator. it infringes a deontological constraint. . regardless of its ensuing effect on people’s conduct. the same constraint. at least sometimes. to justify the incorporation of deontological constraints into CBA. with regard to the second type of constraints (inducing constraint violations). such a law does infringe a deontological constraint by inducing constraint violations. but it does not infringe any deontological constraint.private and public morality 75 law. we need not rule out the theoretical possibility of cases in which a legislator who actively/intentionally induces or facilitates constraint violations does not thereby infringe a deontological constraint. yet under certain circumstances. This intermediate position leaves open the possibility that the constraint infringed by the legislator is different from the constraint whose violation the law brings about. such as local authorities and regulatory agencies. Even if such cases exist. As the above examples sought to demonstrate. active/intentional inducing of active/intentional infliction of harms by a law’s addressees (and perhaps also an active/intentional inducing of other constraint violations) does constitute an infringement of a deontological constraint by the legislator. An intermediate position may concede that not just any law that actively/intentionally increases the likelihood that some people will violate a deontological constraint ipso facto infringes the same constraint. often enough. See. 56. 89. 3 J. Republican Party of Minn.g. See. and thus there are possibly more instances in which the pertinent thresholds are met.57 In the legal sphere. 499. 326 (2003).S. Ilana Ritov & Jonathan Baron. economics. See Stuart Hampshire. 539 U. California.55 deontological constraints do apply in the public sphere. v. Bollinger. e. For example. an experiment exposing people’s “omission bias” (which correlates with the deontological doing/allowing distinction) found no significant difference between people’s judgments when asked to make a personal decision and their judgments when asked to make a general policy decision on the same issue. 536 U. in Public and Private Morality. Making 263. it is commonly held that violating basic civil rights cannot be justified on the ground that the violation produces slightly more overall good. As explained by Justice O’Connor. Grutter v. 266–67 (1990) (showing that people’s reluctance to vaccinate even when the expected deaths due to the vaccine are considerably lower than the expected deaths due to failure to vaccinate is similar in the personal decision hypothetical and in the policy decision one). Johnson v. We demonstrated that some of the arguments made to support this claim conflate important distinctions—such as between deontological constraints and deontological options and between the legislation of general norms and the performance of particular acts—and that none of them leads to the alleged conclusion. are subject to deontological constraints—coincides with prevailing moral intuitions and extant legal norms. 1978).. Constitutional protection of basic liberties often includes provisos that are akin to deontological thresholds. 543 U. others actually make it less attractive. it is inappropriate for public decisions or for legal review of such decisions. Thomas Nagel. While some differences between the private and public spheres render consequentialism more appealing in the latter sphere.56 It is worth noting that the notion that deontology is appropriate for public decision-making—and in particular that public decision-makers. that . when the government infringes a person’s fundamental right to equal protection on the basis of race. While the stakes in the public sphere are often higher than in the private sphere. who adamantly reject the absolute 55. 774–75 (2003). 765. 306. 58.76 law. Public and Private Morality. Ruthless in Public Life.S. Reluctance to Vaccinate: Omission Bias and Ambiguity. White. 57.g. at 75.58 Even Sunstein and Vermeule. It also applies whenever the government adopts a content-based regulation of speech. Concluding Remarks This chapter sought to refute the claim that even if deontology is the right moral theory for individuals.. 505 (2005). e. and morality • F. Behav. 48–52 (Stuart Hampshire ed. in Public and Private Morality 23. Dec..S. including legislators. id. One example is the doctrine that only “compelling interests” can justify infringements of fundamental rights. ” Adarand Constructors. See also infra pp. Inc. at 95. their claim is that if each execution deters some eighteen murders (as some evidence suggests). 515 U. do not propose that the decision whether to use this punishment be based on an unconstrained CBA. 60. 61. 59. there should be no fundamental divergence between law and morality. 213–18. Enoch. at 1177–80. would therefore entail far-reaching and mostly undesirable reforms in current legal norms. see Henry I. 149–50. For a critique of this proposition. See also infra pp. supra note 38. Quite the contrary.62 While current legal doctrines and public policies may indeed require reassessment. then the threshold of the deontological constraint against actively/intentionally killing the convict is met. While we do not argue that the law should straightforwardly enforce morality. 726–27. 62. supra note 2. Shiffrin. 213–18. . it would mean that the distinction between content-based and contentneutral restrictions on freedom of speech should be abandoned. we do believe that in a liberal democracy.private and public morality 77 opposition to capital punishment. On the American FDA’s policy of not approving potentially harmful drugs even when their expected net benefit to most users is considerably greater than the expected harm to some users. To America’s Health: A Proposal to Reform the Food and Drug Administration (2000). 81–83. at 782–86. and the application of the strict scrutiny standard “determines whether a compelling governmental interest justifies the infliction of that injury.59 The adoption of consequentialism as public morality. it does not seem that such reassessment should rest on consequentialist morality. see Steiker. Inter alia. 222–23. Miller. and 346–47.g. at 719. Sunstein & Vermeule. Pena. 229–30 (1995). at 96. emphasizing that a constraint may be infringed only if the desirable good outcome cannot be attained without such an infringement. v. supra note 39.60 It would similarly imply that the side effect of criminal punishment (e. 180–81. Legal academics and public decision-makers should follow moderate deontology first and foremost because of its merits as both private and public morality (at least on the factoral level. or as a decision procedure).. on the convict’s family) should have the same significance as its intended consequences. 200. which currently attribute considerably greater weight to the avoidance of harm than to the promotion of good outcomes. 180–81.61 It would also entail a radical change in the policies of the medical establishment and agencies regulating drugs and medications. thus relieving public officials and legislators of deontological constraints. supra note 3. supra note 3. Enoch.S. See also infra pp. General compatibility of legal norms with morality is essential for the moral duty to person has suffered an injury. legal rules should be sensitive to the demands placed on moral agents so that law-abiding moral agents do not. 120 Harv. Compatibility with commonsense morality may also increase the level of compliance with the legal norms. at 715). Is There a Method to the Madness? Why Creative and Counterintuitive Proposals Are Counterproductive. Seana Valentine Shiffrin. L. economics..78 law. . 63.. Thresholds for Rights. 65. face substantial burdens on the development and expression of moral agency. A Theory of Justice 308 (1999). 708. 2009). 34–39 (Mark D. This is not to say that policy-makers should not avail themselves of the benefits of economic methodology. Shelly Kagan. See. Louis Kaplow & Steven Shavell. White ed. as a regular matter. it only means that they should use a deontologically constrained CBA rather than a standard one.g. Phil. Chaim Gans. 1988).. Michael B.g. in Theoretical Foundations of Law and Economics 21. 713–19 (2007) (“Especially because there are moral duties to obey the law. and morality obey the law. e. See. e. namely its conformity with prevailing moral intuitions. 33 Southern J. and given that moderate deontology is compatible with commonsense morality while consequentialism is not. Cf. Rev. policy-makers should thus reason as moderate deontologists.” id. Introduction. 64. On this conformity.65 Assuming that popular legitimacy is important for public authorities (including the legislature and the courts).63 Public decision-makers should follow moderate deontology for another reason. 9 (Samuel Scheffler ed. e.. 145 (1995). Samuel Scheffler. The Limits of Morality 1–5 (1989). Philosophical Anarchism and Political Disobedience (1992).. The Divergence of Contract and Promise. see. Samantha Brennan.g. in Consequentialism and Its Critics 1. Fairness Versus Welfare 62–69 (2002) (providing a similar observation on “notions of fairness.64 Even critics of threshold deontology readily admit that it comports with commonsense morality much better than do rival theories.” defined as any notion that is not exclusively consequentialist and restricted to individuals’ welfare). 143. Dorff & Kimberly Kessler Ferzan. John Rawls. A formalized definition of a threshold constraint may then be integrated into an otherwise standard economic analysis. it does not discuss in any detail the substantive arguments for and against these variations. we will present the central substantive and methodological choices involved in constructing threshold functions. the considerable diversity within theories of moderate deontology. and the multiplicity of modeling possibilities. Rather. Given the vast variety of contexts to which deontological constraints are applicable. and the types of benefits and costs they take into account. The very use of stylized mathematical representation facilitates a more definite and less ambiguous description of constraints. their scope.• four Constructing Threshold Functions • A. A mathematical formulation brings to light the implications of alternative definitions of a constraint and may thus contribute to the normative debate concerning such definitions. Introductory Remarks having established the necessity of integrating deontological constraints with economic methodology. Focus on Methodology While this chapter describes the implications of different variations of deontological constraints for constrained CBA. Rather than directly engaging in the philosophical debate. Before getting into the details of the choices involved in the construction of threshold functions. More specific substantive and methodological issues will be discussed in the second part of this book. this chapter demonstrates how such integration may actually be accomplished. which illustrates the implementation of the general framework in several fields. the goal of this chapter is to demonstrate the methodological plausibility of integrating deontological 79 . we will not try to provide a complete array of plausible mathematical formulae. thus redefining its target function. some clarifications regarding the goals and scope of the following discussion are in order. It is not that distributive concerns are not . rendering enslavement contracts void). or valid—and each of these adjectives bears different meanings in different contexts. either praiseworthy or condemnable). Object of Analysis In principle. voidable. Thus.. any act (or omission) is morally required. a prohibited act may be void. the identity of the enforcer (public or private). much of the analysis is relevant to moral (rather than legal) questions and to individual (rather than public) choices as well. Of these pairs. including its underlying theory of the good and economic monetization methods. the methodological discussion sheds new light on the substantive issues as well. The analysis of legal issues is often more complex than a comparable analysis of moral issues. The legal system. In fact. To avoid repetition. Similarly. and morality constraints into economic analysis.g. a violation of a legal prohibition may result in criminal.80 law. enslavement) but also by restricting their legal effect (e. and enforced by governmental authorities. to both moral and legal questions. however. determines not only the normativity of acts but also provides for detailed sanctions and remedies for violations. intrusiveness. Moreover. we will mostly refer to “acts” and “actors. In normative ethics. however. monetary or nonmonetary character. prohibited. and so forth. Only rarely do ethicists discuss the outcomes of infringements or violations of moral norms. the following analysis applies to both acts and rules. as the default. Standard CBA as the Default The following discussion takes the standard features of conventional CBA. Finally..g. and to both private and public choices. We shall not discuss these features unless the adding of threshold constraints to CBA requires modification thereof. Sometimes. administrative. economics. since legal norms are produced. our primary focus is on public (rather than private) decisions concerning legal (rather than moral) issues. in contrast. Our analysis applies to rules as well as to actions (such as resolving a particular legal dispute). we shall not discuss the incorporation of distributive concerns into the social utility function underlying CBA.” but these terms should be understood as referring to both legal rulemaking and particular decisions. or civil sanctions. interpreted. which vary in their severity. or optional (and in the latter case. revised. the law may reflect deontological constraints not only by prohibiting certain activities (e. institutional considerations loom large on almost any legal issue. Therefore. unenforceable. 3 Choosing Among Prima Facie Permissible Courses of Action The functions described here aim to determine whether acts or rules infringing a deontological constraint produce a sufficiently large net benefit to override the constraint. In such cases. Sometimes. . they are important whether or not deontological constraints are considered. On Balancing and Subsumption: A Structural Comparison. (2) deliberately killing 3 innocent people to save the lives of 290 (out of the same 500). rather. this is the sole question facing the decisionmaker. determining whether one or more of the available courses of action violate a deontological constraint is only part of the inquiry. 16 Ratio Juris 433 (2003). policy-makers need not only weigh the goodness of outcomes against deontological constraints but also (or even primarily) balance or prioritize between the constraints themselves according to some normative theory. 244–46. Similarly. We touch upon such conflicts in the second part of this book. There may be interesting interactions between introducing deontological constraints and incorporating distributive concerns into CBA. 2.” see Robert Alexy. 246–51. see also infra pp. At times. only the third choice would 1. but this issue exceeds the scope of our analysis. For example. we do not suggest that threshold functions resolve conflicts between constraints and do not explore such conflicts in any detail. and (3) letting all 500 die. This is the case when the infringement under consideration is the only reasonable way to achieve some desirable outcome. If the threshold of the constraint against actively/intentionally killing innocent people is sufficiently high. See infra pp. For an interesting proposal to model such conflicts through a “Weight Formula. however. the constraint against harming a person’s reputation sometimes conflicts with the constraint against limiting freedom of speech. 3. On the relationships between deontological constraints and distributive concerns in the context of marketplace discrimination. the constraint against harming one’s dignity by discriminating against her in the marketplace conflicts with the constraint against limiting freedom to choose with whom to interact.constructing threshold functions 81 important.2 However.1 Conflicting Constraints Legal (and other) policy-making often involves not only conflicts between the promotion of the good and deontological constraints but also conflicts between deontological constraints. Consider the choice between the following alternatives: (1) deliberately killing 2 innocent people to save the lives of 280 (out of 500 facing death). Another approach is to maintain that whenever an infringement of a deontological constraint is involved (but not necessarily in other contexts). alternatively. Using standard CBA to choose among them. If alternative (1) overrides the constraint against deliberately killing innocent people. the decision process consists of two stages: sorting out those courses of action that do not infringe.000. The separation between the two stages is necessary because—as demonstrated below—the factors taken into account in each stage and their interrelations may be different. economics. Presumably. regardless of the monetary value attributed to human life. and (3) no lives saved and no costs borne. The Realm of Rights 164 (1990) (arguing that whenever a large increment of good may be achieved by infringing a person’s right. then all three alternatives are permissible. however. alternative (1) should be chosen. Cf. and since alternative (1) results in a net saving of 278 lives and alternative (3) with the saving of none. alternative (2) ranks first (net saving of 287 lives). One way is to employ standard CBA. At this point. and morality be permissible. The net outcomes of the alternatives are as follows: (1) net saving of 100 lives.000 to save the same 101 people. that whenever a decision-maker faces more than one deontologically permissible course of action. In situations like these.82 law.000. then alternatives (1) and (3). Judith Jarvis Thomson. then all three courses of action are permissible. and then using standard CBA to choose the one that brings about the best outcomes (as long as the chosen alternative both brings about the best outcomes and does not violate any deontological constraint. the choice between them should necessarily rest on standard CBA.000. monetize the value of a person’s life. or that override.000. The choice between (1) and (3) may be made using standard CBA. alternative (1) second (net saving of 278 lives). Consider the choice between the following possibilities: (1) deliberately killing 1 innocent person to save 101 others. such infringement . human life is lexically more important than monetary losses. (2) spending $10. It does not follow. and (3) letting the 101 people die. and alternative (3) last (no lives saved).000. are permissible. there seems to be (at least) two ways to proceed. one would rank alternative (2) higher than alternative (1). Finally. the threshold is met whenever at least 100 people are saved by killing each person. but not (2). Thus. the deontological constraint. If. the only alternative infringing a deontological constraint in this example is (1). (2) saving of 101 lives at a cost of $10.4 4. if the threshold is met whenever killing one person saves at least 90 lives. the order of the two stages is not crucial). and choose between alternatives (1) and (2) (both of which produce much more good than alternative (3)) based on whether one life is valued at more or less than $10. that there are two ways to save a person’s life: one entails lying and one entails bodily injury to a bystander. L. 751. Carol S. then one has to decide whether the increase in the probability of success is great enough to render the torture permissible. limitations on the freedom of movement of other people. 155–56. This is primarily because standard CBA. Suppose that to preempt an imminent.constructing threshold functions 83 The notion of lexical priority may be deemed relevant not only when choosing between a course of action that permissibly infringes a constraint and a course of action that involves no such infringement. Be that as it may. 223. 149–50. The possibility of constructing functions that deal with both stages of the decision process. Deontology. the general discussion that follows focuses on formulating threshold functions to determine whether the good outcomes of a certain act or a rule are sufficiently large to override a deontological constraint (the first stage). 5. ordinarily assume that people are self-interest maximizers rather than maximizers of the total good. and economic models in general. The expected probability of success of the former measure is 85% and the probability of the latter is 75%. See infra pp. 58 Stan. the latter would have been considered permissible. Capital Punishment Is Not Morally Required: Deterrence. though temporary. deadly terrorist attack. If people are not is impermissible if there exists a way to produce a comparable increment without infringing any right). 783–85 (2005) (submitting that the availability of alternative means to prevent future murders renders capital punishment impermissible). No. Rev. the authorities may either torture a person possessing pertinent information or impose considerable. The notion of lexical priority may also be deemed relevant when faced with a choice between two prima facie permissible infringements whose expected net benefit is dissimilar. A deontologist may plausibly argue that the availability of the former course of action (lying) renders the latter (inflicting bodily injury) impermissible. 169–70. and 346–47. will be considered later. . all of which prima facie justifiably infringe some constraints. and the Death Penalty. despite the fact that absent the former.5 Threshold Options While incorporating constraints into standard CBA may significantly alter the conclusions of the analysis. If the deontological constraint against torture is lexically more stringent than the constraint against temporarily limiting people’s freedom of movement. Steiker. incorporating deontological options is unlikely to have such an effect. taking into account the marginal net benefit of infringing the more stringent constraint. but also when choosing between two or more actions. Assume. for instance. • B. using a multiplier function. the threshold above which the agent no longer enjoys an option would only come into play in very rare cases. the infringement of a deontological constraint should be expressed by adding to the act’s harms.′ such that an infringing act is permitted only if its total benefit. an invariable priority to one’s self-interest). Note that when K = 0 and K ′ = 1. more precisely. B. economics. In such contexts. the maximization of aggregate social welfare requires imposing considerable sacrifices on people. General Structure of a Threshold Function Incorporating deontological constraints into economic analysis entails the characterization of a threshold function. and morality expected to impartially maximize the total good. some factor K (where K>0). such that an infringing act is permissible only if its benefit. One possibility is to use an additive function. T. exceeds its weighted harms. The threshold function may also combine these two forms to include both K (a constant constraint) and K ′ (a multiplier). The concluding section of this chapter briefly considers the integration of deontological threshold options with CBA. According to this approach. then standard CBA already embodies unlimited options (or. B. the function reflects absolute . such that an act is permissible only if the product of this function is positive. nevertheless. the infringement can be expressed by multiplying the act’s harms by some factor K. Alternatively. incorporating threshold options into CBA may thus be fruitful. Even if such imposition does not constitute an infringement of a deontological constraint by the legislature. the threshold function reflects consequentialism and when either of these factors is prohibitively high. making its formalization rather unhelpful. There are. due to market failures.84 law. C. cases in which. K ′×C (where K ′>1): (2) T = B – K ′×C. Incorporation of options into CBA would also be less revealing whenever commonsense morality coincides with the standard economic assumption that people have absolute or almost absolute options. it may still restrict otherwise available options. Assuming these options have thresholds. exceeds the sum of C and K: (1) T = B – (C + K ). Consider the following function: (3) T = 1n (B – C) – K. . this function entails that killing one person ( y = 1) is justified only if the act results in saving at least 101 persons. . . . .′ The threshold function may take other mathematical forms as well. .000. ). using discount factors for any type of costs and benefits would yield the following general form of the function: (6) T = (d1 x1 + d2 x2 + . To illustrate. For example. if the costs and benefits are measured in monetary terms.) 6. if K=12. . . ). the infringing act’s relevant net benefit. Moderate deontology entails intermediate levels of K and K. the required net benefit is approximately $163. setting K=10 entails that the infringing act is permissible only if its net benefit exceeds approximately $22. . The permissibility of such an act may thus be determined according to the following threshold function: (5) T = (x – y) – K ′× y where x is the number of persons who will be saved if the act is committed. Thus in the case of a multiplier threshold. as a general matter. .000. To formalize the notion that a threshold function should sometimes accord different weights to different types of costs and benefits.constructing threshold functions 85 deontology. and K = k( .200. . . in its general form. – h1 y1 – h2 y2– . if K ′ = 100.). For instance. . we propose that. the thresholds K and K ′ may take the form of vectors of thresholds. and K ′ is a multiplier expressing the magnitude of the constraint against actively/ intentionally killing innocent people.) –(K ′1 h1y1 + K ′2 h2 y2 + . To highlight this aspect. the net benefit should exceed $1. .6 The threshold function determines not only the size of net benefits required to justify overriding the constraint but also the types of benefits and costs that should be considered in this regard. y is the number of those who will be killed as a result of the act. and if K=14. . Thus.) — k (. the threshold function is: (4) T = B — K = b(. assume that the only type of benefit that can justify overriding the constraint against actively/intentionally killing an innocent person is the saving of human lives. This function narrows the spectrum of the possible outcomes and enables one to define K in a different scale than B and C. a threshold function consists of two elements: B = b( . regardless of the act’s other possible costs and benefits. the size of the minimum amount of benefits that is required to justify the infringing act (the threshold).000. but not for 7. for example. damage to property. Under this view. Relevant Types of Benefits and Costs Standard CBA monetizes and aggregates all costs and benefits involved in an act. We start by discussing what types of benefits and costs are deemed relevant according to the threshold function (section C). 711 (1994). human life may be thought of as lexically superior to pecuniary losses. e. If. Following the philosophical literature. and morality where xi is a certain type of benefit. economics. and pecuniary gains and losses.J. While a threshold function may similarly consider all such costs and benefits (thus deviating from standard CBA only in adding a threshold K). 45 Hastings L. and di and hi are discount factors. all these costs and benefits are taken into account. Lexical Priority According to commonsense morality. yi is a certain type of cost. Pildes. See. To assess more realistic scenarios (particularly when the objects of assessment are rules).g. Against Balancing: The Role of Exclusionary Reasons in Constitutional Law. • C. For instance. This notion is echoed in the discussion of “exclusionary reasons” in constitutional and human rights analysis. The following sections describe the main choices required in formulating such functions. such inclusiveness arguably misses significant distinctions between different costs and benefits. one might have to use more sophisticated threshold functions.86 law.7 Accordingly.. certain values take lexical priority over other values. this section examines several limitations on the types of benefits and costs bearing on the permissibility of infringing deontological constraints. one should sort out those types of benefits (and costs) that are not lexically inferior to the harm prohibited by the constraint. an infringement of the constraint against torture may be justified only if it is absolutely necessary to generate a sufficient amount of benefits such as saving lives and avoiding comparable tortures. We then move to assess what size of net benefit is required to justify an infringement and the relevant considerations in choosing between additive and multiplier functions (section D). The possible “excluders” of costs and benefits described may be endorsed alternatively or cumulatively. Richard H. an act involves the killing of some people and saving others. . body injuries. 149–53. e. 135 (1997). An oftdiscussed example is whether it is ever permissible to actively/intentionally kill an innocent person in order to avoid a vast number of minor headaches. 58 Phil. Moral Lumps. Similarly. In any event.8 Given the great variety of types and intensity of harms. Pa. 645. Comparing Harms: Headaches and Human Lives. such characteristics as a person’s life expectancy may be classified as irrelevant in assessing the legitimacy of saving one’s life while infringing a constraint. & Pub. 645–51 (demonstrating this concern in the context of the criminal defense of justifying necessity). For a discussion of this excluder. A consequentialist would reasonably hold that a world with a vast (but finite) number of temporary. Dan W.Y. I: Death and Whom to Save From . 146 U. supra note 4. some finite number of headaches such that it is permissible to kill an innocent person to avoid them. however. 143. 11. Phil. 160–65 (1995) (hereinafter: Brennan. at 166–69 (labeling it “the distributive constraint”). 170–71.U. 963. Alastair Norcross. Cf. The Principle of Interest Balancing as a General Basis of Justification.10 A deontologist. 967 (1998). Rev. Rev.11 Thus.. Frances M. 1986 B. in order to save the lives of others. regardless of their size. 249 (2006). There is. 33 S. 1419. Thresholds) (denoting it “the universal constraint”). & Phenomenological Res. Brock. Even if it is impermissible to deliberately kill an innocent person for any amount of money. Theodor Lenckner. may believe that the number of (at least certain types of) headaches that can be avoided by killing an innocent person is irrelevant in assessing the permissibility of such killing. such priorities need not apply outside of the realm of deontological constraints. the sphere of bodily injuries) should not be considered if they are too small compared to the prohibited harm. in other words.9 One may therefore use constrained CBA without embracing lexical priorities. Aff.constructing threshold functions 87 generating pecuniary benefits. 10. L. and the Law. Small Benefits A more controversial claim is that even benefits similar in nature to the harms prohibited by the deontological constraint (in the sense that they both belong to the same sphere. Richard Craswell. moderate headaches could be worse than a world lacking those headaches and containing one more premature death. 1456–57 (1998). J. 9. see infra pp. Samantha Brennan. Kamm. in contrast. On the question of whether it is permissible to actively/intentionally kill people who are doomed to die anyway. to be included in the threshold function. Aggregating Costs and Benefits. Incommensurability. Mortality. lexically ranking values in the abstract may be misleading. 9 Ethical Theory & Moral Prac.g. 8. Vol. Thresholds for Rights. it may still be permissible—in fact inevitable—to trade safety measures against other uses of money. Samantha Brennan. Welfare Economics. L. Morality. 26 Phil. see Thomson. supra note 11. 76 Pac. anything less than a saved life should be excluded from the threshold function. one may hold that to override a constraint. and morality any single benefit must—according to this view—bear some proportion to the harm whose active/intentional infliction is prohibited by the constraint. The title of this excluder follows Brennan. economics. Brennan. Brock. 161–66. at 154–65. in fact. Otherwise it converges with either of them. 1972 (1992) (Book Review). at least as large as (or nearly as large as)—and possibly of the same nature as—the inflicted harm. 90 Mich. Thresholds. it may be permissible to inflict some pain on some people to save others from premature death. at least one of the benefits produced by the act should bear a certain proportion to the inflicted harm. say. supra note 11. The Realm of Rights. Scanlon. The one benefit should be. such killing is possibly justified for the sake of. this proportion may straightforwardly be represented in mathematical terms. the saving of one person’s life and eliminating 100.14 It 101–02. perhaps even benefits whose magnitude is greater than the harm whose active/intentional infliction is prohibited by the constraint. Thresholds. 14. Richard J. even if there is no number of moderate headaches whose elimination justifies the deliberate killing of an innocent person. at 153–54. for instance. For a critique of this position. supra note 4. L. To illustrate. for example. at 166–69). supra note 11. Mooney. Brennan discusses the possibility that the smallest single benefit which is large enough to be taken into account equals the total benefit required to override the constraint (K in function (4) above). but it is impermissible to kill one person to save any number of people.M. supra note 11. supra note 10. the existential constraint is meaningful only if it is higher than the “universal constraint” (excluding altogether too small benefits) and lower than the total benefit. 1569. Some deontologists may want to exclude rather significant benefits. As Brennan points out. see Brennan. but no more than one human life is necessary. and even all three may converge. Rev. According to this position. 13. This would be the case. see Alastair Norcross.88 law. at 152–53. 12. This is.000 moderate headaches. See also infra pp. 159 (1995). According to this position. What We Owe to Each Other 235–41 (1998). thresholds. or even to inflict one minor pain to alleviate any number of similar pains. Rights Violations and Distributive Constraints: Three Scenarios. For a critique of the exclusion of small benefits. a deontologist may hold that nothing less than the saving of human life can justify the brutal torture of an innocent person. Q. Thus. Thomson’s position (Thomson.12 The Existential Constraint13 Whether or not the elimination of a vast number of small harms can ever justify the active/intentional infliction of a major harm. Phil. . 154. 144–64 (1993). If both harms and benefits are monetized. if only preventing a person’s death is significant enough to justify the torture of an innocent person. T. at 152. thresholds. Brennan. by Judith Jarvis Thomson. Chi. Applying a sufficiently high discount rate will result in marginalizing the weight of future outcomes.17 but it may also manifest people’s myopia. at 170–74 (concluding that probabilistic benefits should be taken into account even if the benefit has not materialized ex post). where r is some per-period (e. Later Generations. any of the act’s relevant consequences is multiplied by 1/(1+r)t. 1–246 (2007). 1981 (1998). see generally Lisa Heinzerling. and the Discounting of Human Lives. The Optimal Level of Social Security Benefits. Richard L. See Shelly Kagan. Martin Feldstein. 108 Yale L. and the Environment. arguably no number of people who will be saved in twenty years from now justifies such intentional killing. 19. Rev. id.16 Even if it is permissible to actively and intentionally kill one person to immediately save the lives of 101 others. 210–11. The Shadow of the Future: Discount Rates. Symposium: Intergenerational Equity and Discounting.15 Such discount rates may be part of constrained CBA as well. 893. 46 Vand. Hemmersbaugh. Revesz. 18. Rev. Farber & Paul A. 100 Q.19 A simple approach would be to calculate the 15. Rev. However. e.J. and t is the number of periods. 196–201. On the normative and methodological difficulties involved in CBA’s use of discount rates (especially discount rates for future lives). Different discount factors may correspond to different types of costs and benefits. Regulatory Costs of Mythic Proportions. 943–48. On people’s tendency to attribute too little weight to future benefits and costs. For instance. ordinary morality and threshold deontology may go one step further and exclude chronologically remote benefits from the threshold function altogether. there . L. 307 (1985). See also infra pp. Probabilistic Costs and Benefits A threshold function should plausibly take into account the probabilistic nature of harms and benefits. The reluctance to consider remote benefits is particularly strong when their probability is relatively low.. John J. L. 16. see. See Daniel A. ranging from negative to infinite rates).J.18 The threshold function may reflect any substantive moral judgment regarding the treatment of chronologically remote benefits by employing a suitable discount rate. Possibly. Donohue III. L.. Deontology at the Threshold. Larry Alexander.J. supra note 4. See Alexander. 303. This claim may rest on the typical uncertainty of future events and the fear of errors.constructing threshold functions 89 Chronologically Remote Benefits and Costs Standard CBA employs discount rates to determine the present value of future benefits (and costs). 17. 74 U. one year) discount factor.g. Cost-Benefit Analysis. 1901 (1999). Why We Should Discount the Views of Those Who Discount Discounting. 905 (2000).g. 987–1017 (1999). 37 San Diego L. 107 Yale L. Environmental Regulation. 99 Colum. as compared to present ones. Thomson. 281–84 (1993) (reviewing contradictory studies of people’s discount rates for future lives. 941. in calculating the act’s net benefit. Rev. Econ. 267. The Limits of Morality 87–91 (1989) (discussing probabilistic harms). Paul Slovic.25. See. the threshold function must determine how uncertain outcomes (both costs and benefits) are discounted in calculating the act’s net benefit. 565 (1989). . See David McCarthy. The net benefit of infringing the constraint against torture can be zero for low levels of risks and may be only partially sensitive to changes in the level is a constraint against actively/intentionally exposing people to a risk of harm. Assume that there is some probability p that if a person’s right not to be tortured is not infringed. 8 J. e. and morality act’s net benefit according to the expected value of the act’s consequences.. 107 Ethics 205 (1997). taking into account the decision-maker’s sophistication. Rights. Camerer & Howard Kunreuther. The probability may reflect the risk that the infringing act will not generate the anticipated benefit or the chance that the benefit will be achieved without infringing the deontological constraint. or even 2x with a probability of 0.g. Explanation. Assuming it is permissible to intentionally kill one innocent person to save x lives. such multiplication does not fully capture prevailing moral intuitions. Baruch Fischhoff & Sara Lichtenstein. and Risks. i. even if the risk never materializes. it is arguably impermissible to kill one person to save 4x people with a probability of 0. Noll ed. This intuition may also be justified on a second-order consideration pertinent to low-probability costs and benefits. to multiply all relevant harms and benefits by the probability of their occurrence. Colin F. x persons will be killed. Various studies have documented people’s systematic errors in dealing with low-probability events and discussed their policy implications.90 law. B. The further one is from absolute certainty the more one is prone to misjudge expected outcomes. 1985). Pol’y Analysis & Mgmt.5. 20. Such exposure is certainly a cost that should be taken into account in choosing among deontologically permissible acts. Arguably.. Ordinary morality and threshold deontology plausibly hold that it is permissible to actively/intentionally cause a serious harm to a person (even as a side effect of saving others and certainly as a means to saving them) only if the probability of saving the others is quite high. but it may well attach different discount factors to uncertain outcomes.. at least when they are aware of this exposure. economics. Regulation of Risk: A Psychological Perspective. it may reflect “risk-neutrality” by calculating outcomes based on their expected value. Decision Processes for Low Probability Events: Policy Implications.e. Thus. in Regulatory Policy and the Social Sciences 241 (Roger G. As indicated above.20 This consideration calls for extra caution in assigning to decision-makers the task of calculating and considering such effects. Eliminating the Bad Contrary to standard economic wisdom. 333. Sanford H. 316. an act that would harm one unknown person out of a group is identical to an act that would inflict the same harm on a specific person (since the result in both cases is harm to one person). 64 Cal. Rev. For instance. the deontological constraint.C. no number of expected saved lives would render the torturing of a person permissible. Chase. or that override. can be calculated according to the following noncontinuous function:  0  (7) B =  0. Schelling. e. and the expected number of saved lives is discounted by half if the probability of saving lives is between 5% and 50%.5px  px  if p < 5% if 5% ≤ p ≤ 50% if p > 50% According to this function. 1968) (discussing the difference between individual death and statistical death). See.g. commonsense morality also possibly distinguishes between saving an unidentified and an identified person from the same harm. 199–201. 145–46. T.constructing threshold functions 91 of risk. Jr.21 Once again. L. We shall discuss the normative judgments underlying such functions in specific contexts later. The Life You Save May Be Your Own. even if low probability outcomes are excluded or discounted in the threshold function. deontology may well distinguish between the two acts and find the latter more objectionable. there is a prevailing intuition that normatively. See infra pp. . they need not be similarly excluded or discounted when choosing between those acts that do not infringe. Alternatively.23 Promoting the Good vs. 22. 23. 147–48. Respect for Life and Regard for Rights in the Criminal Law. Kadish. if the probability of saving lives is less than 5%. increasing one’s utility is not as important as decreasing 21. 871. and 344–45. 151–60. in Problems in Public Expenditure Analysis 127 (Samuel B. ed. 169–70. Both standard CBA and constrained CBA may of course reflect risk aversion. Whereas from a consequentialist viewpoint.22 Last. 893–94 (1976) (making this claim in the context of criminal law). 287. low probabilities may be discounted using a continuous function such as: (8) B = p 2x... the act’s net benefit. 164–65. B. e. while it may be permissible to actively and intentionally torture one person as a means to preventing the premature death of x people. Were promotion of the good as compelling as eliminating the bad. in Killing and Letting Die 298 (Bonnie Steinbock & Alastair Norcross eds. 1. in Model Penal Code § 3.30 Thus. The Open Society and Its Enemies 284–85. 47. she simultaneously avoids doing harm (to the one) and avoids doing good (to the two). supra note 25. at 49–51. see. Negative Utilitarianism.g.. James Griffin. & Pub. 29. Id. 1 Karl R. see Kagan.. 47 (1979). e..M. the Person as an End-in-Itself. 85 Mind 587 (1976).D. NonConsequentialism.g. it seems impermissible to torture one person 24. Behav. saving the lives of two).. ed. For psychological evidence of this intuition. Therefore. 354. refraining from killing one person) because the good produced by such harm is not large enough (e. 10–11 (1997) (finding that people are much more supportive of medical intervention aimed at increasing newborns’ IQ from subnormal to normal than from normal to superior). See. Negative Utilitarianism. See also N. . 26. at 121–25 (a critique).02 (setting out that conduct that the actor believes to be necessary “to avoid harm or evil”—but not to produce benefit or good—is justifiable under certain circumstances).g.. F. this judgment is often labeled “negative utilitarianism. for example. economics. Smart. the doing/allowing distinction would have collapsed.g. Smart.” See.92 law. Is Unhappiness Morally More Important than Happiness?. supra note 19. Protected Values. See Griffin. e.2 (5th rev. Quart.I. R. Ann Davis. for instance. 21 Phil. Griffin.28 All versions are subject to serious objections. Aff. 29 Phil. supra note 25 (critically discussing different versions of the “negative doctrine”). In fact. A.g. 1966).g. there must be an underlying notion that promoting the good is less morally compelling than eliminating the bad. 1994). 28. supra note 25. Kamm.. and morality one’s disutility.N.25 but is primarily embedded in deontology. On this distinction.. 2d ed. 27. Sikora.29 yet at least the weaker versions reflect widely held intuitions. to a slight preference for the avoidance of unhappiness over the promotion of happiness. R. e.27 A plausible version may refer to some reasonably acceptable level of well-being and attribute greater weight to bringing the worse-off to this level than to promoting people beyond it. and the Significance of Status. Walker.M. 83 Mind 424 (1974). 70 Org. The Priority of Avoiding Harm. This intuition is reflected. & Human Decision Proc. 30. 67 Mind 542 (1958). See. Jonathan Baron & Mark Spranca. Negative Utilitarianism: Not Dead Yet. 25. 26 This judgment may vary from an absolute denial of the moral duty to promote happiness. Popper. 381–82 (1992) (a reply to the critique).24 This moral judgment—often phrased in terms of avoiding pain versus promoting happiness—may be endorsed by consequentialists. n. Whenever an actor abides by the prohibition against actively doing harm (e. and less drastically. More Laboratory Evidence on the Disparity Between Willingness to Pay and Compensation Demanded. . Willingness to Pay and Compensation Demanded: Experimental Evidence of an Unexpected Disparity in Measures of Value. B. one may exclude gains from the threshold function altogether. infra pp. Harless. The threshold can be quantified as some function of (plausibly certain types of) the harm(s) that the act inflicts but may also embody the general importance of the relevant deontological constraint. 99 Q. Econ. Behav. 32. Econ. Shape and Size of the Threshold Following the proposal to formalize threshold functions as T = B—K and the discussion in the previous section of the net benefit of the infringing act. one may attribute different weights to losses and gains: full weight to the disutilities avoided by the act and a reduced weight to the utilities it produces. the numerical representation of the threshold that has to be met for the act to be permissible. then K should reflect this distinction as well. one can use WTP to measure the gains the infringing act yields and WTA to measure the losses it prevents. 213–218. 240–44. On this phenomenon (sometimes called “the endowment effect”). Knetsch & J. yet unintended. K reflects the strength of the relevant deontological constraint. As indicated 31. and 252–53. 11 J. Another (indirect but often powerful) way to take this distinction into account may rest on the fact that people’s willingness to pay (WTP) for an entitlement is often much smaller than their willingness to accept (WTA) regarding the same entitlement. 135–176. such use or breach would not be permissible for the sake of making a comparable or even larger gain. this section focuses on K. 359 (1989). Sinden. Alternatively. In a similar fashion (and more realistically). 507 (1984). To reflect this moral judgment. If active.J. See supra pp.A.constructing threshold functions 93 in order to prolong the lives of x (or more) people beyond their regular life expectancy. 41–46. & Org. while preventing a large pecuniary loss may sometimes justify the unauthorized use of another person’s property or the breach of a contractual promise. see generally Jack L.31 Thus.32 An important question is to what extent the size of the threshold is a function of actual (or probable) harm inflicted by the infringing act. David W. • D. infliction of harm on a person infringes a constraint and if the threshold that has to be met to justify such harming is lower than the one applying to an active and intended harm. economics. the threshold will be zero.g.010 and to kill 100 to save 10. Samantha Brennan. when the actual harm (i. supra note 11. multiplier. and morality earlier. Alternatively. Brennan. or a combination of these. there would practically be no constraint against 33.100 people. See. For instance. To illustrate. Alexander. all the above three functions yield that it is permissible to kill one person ( y = 1) to save the lives of at least 101 others (x ≥ 101). Phil. 34. the number of people who are killed) is higher. In many contexts. at 157. 388–90 (1995). the threshold function in the case of the constraint against active/intentional killing of innocent people may be additive and therefore independent of the actual harm. 383. a threshold function may be additive. the additive function (9) yields counterintuitive results.34 For example. and therefore an increasing function of the actual harm: (10) T = (x – y) – 100 y where K ′ (100 in this example) is the multiplier.. According to the combined function (11).33 A conspicuous shortcoming of a multiplier function is that whenever an infringement of a deontological constraint causes no harm. according to the multiplier function (10).94 law. Q. it is permissible to kill 10 to save at least 1. However. and to kill 197 to save 10. e.000 to save just 10. multipliers or combined functions better capture the intuitions underlying threshold deontology.e. the function may be based on a multiplier. y is the number of those who will be killed as a result of the act. the size of the threshold—is an increasing function of the harm that is expected to be inflicted in the specific circumstances. It yields that it is permissible to kill 10 to save at least 110 people and to kill as many as 10. How is the Strength of a Right Determined? Assessing the Harm View.100 people. it is justified to kill 10 to save no less than 560. the infringement of the deontological constraint would still require that B ≥ 0 for the act to be permissible. Thresholds. A third possibility is a combination of these two: (11) T = (x – y) – (50 + 50 y). supra note 16. for instance: (9) T = x – y – 100 where x is the number of persons who will be saved if and only if the act is committed. at 898–900. In contrast.100 people.. 32 Am. and K (100 in this example) is the constant threshold. Indeed. However. Since B typically includes . the prevailing view seems to be that the “strength” of the deontological constraint—and thus. These arguments carry some weight but do not seem wholly persuasive—which may lead one to the conclusion that the combined function (11) is superior to both the additive and the multiplier ones. supra note 34. Steven Shavell. there would be practically no constraint against such act so long as the actor is willing to fully compensate the injured person (assuming such compensation is possible). Furthermore.e. if the probability of harm does not reach a certain minimum (either since there is a chance that the act will not engender harm after all. constitutes some harm to the right-holder (and thus K is necessarily positive). 11 Bell J.. 37. 294–95. See. and to breach and avoid such precautions if breach is efficient. the very fact that a lie is told or a promise is broken. For the claim that even imposing low-probability risks infringes moral rights (i. 466 (1980). A well-known example is the “efficient breach” doctrine. . 342–62. Posner. 36. While perfectly compatible with consequentialism and economic efficiency. See also infra pp.constructing threshold functions 95 breaking promises when it does no harm to the promisee. 2007). according to which remedies for breach of contract should urge the promisor to perform and take precautions to avoid breach so long as performance and such precautions are efficient. and the threshold should indeed be zero (despite the fact that the infliction of the low-probability risk of harm was both active and intentional). it is at least theoretically possible that the act would be considered efficient under standard CBA. even if an act (be it breaking a promise or intentionally inflicting physical pain) does cause harm to another person. which of the concrete elements of the infringement of the constraint are relevant in setting the size of the threshold? As indicated. 375–80 (2004). Damage Measures for Breach of Contract.37 only some of the act’s costs and benefits. e. 35. the act does not infringe the constraint.g. Arguably. A defender of multiplier threshold functions may respond that the very infringement of the constraint. Richard A. Foundations of Economic Analysis of Law 304–14. one plausible consideration is the probability of harm. constraints). Steven Shavell. or that the same harm would come about anyway). Applying a function that sets the level of threshold as an increasing function of harm requires one to determine what types of harms should be counted in this respect. Economic Analysis of Law 118–30 (7th ed. but deontologically impermissible. The question is then. supra note 19.36 Similarly. at 390.35 this conclusion conflicts with deontological morality and the prevailing conception of moral and legal rights. she may argue that compensation very rarely puts the injured person in as good a position as she would have occupied but for the breach. see McCarthy. Econ. and multiplying this remaining harm would thus result in a positive threshold. at 212–15.. Brennan. see Brock. the fact that directing the threat at one of them would also involve destroying a patch of beautiful flowers which gives pleasure to many people. to save the lives of additional people. the only relevant factor is the number of people who will be killed. thanks to their unique qualifications. Cf.g. A deontologist may or may not view the fact that some outcomes are not directly produced by the act as morally significant. supra note 11. Even costs that involve infringements of deontological constraints may seem irrelevant when they are much smaller than the major infringement considered. a deontologist 38. .38 Such additional costs may possibly be relevant in calculating the act’s net benefit (and certainly in choosing between several acts that meet the threshold). While promise breaking and the infliction of a mild pain are infringements of deontological constraints. economics. that one or more of the people saved by an infringing act will then be able. supra note 11. when considering whether to redirect a threat away from five people in the direction of either Joe or Jim. at 104. and morality In addition. at 146. • E. 39. Kamm. as depending entirely on the author’s intuitions. Kamm argues that according to the principle of irrelevant utilities. 107–12. It may be argued that in determining the size of the threshold of the constraint against actively/intentionally killing people. It may be. See. supra note 10.40 Similarly. For a critique of Kamm’s principle of irrelevant utilities. mild pain on another. John Broome. and thus as powerless against people who do not share these intuitions). for example. and no other costs engendered by the infringing act should be considered. 58 Phil.. and specifically the claim that it dovetails with commonsense morality. 40. should not be taken into account in choosing between the two individuals. Other Concerns Deontological moral theories are varied and complex. & Phenomenological Res.39 To illustrate. 955. certain types of harms should plausibly not count in quantifying the threshold. Kamm on Fairness.96 law. one may hold that they should not affect the size of the threshold determining the minimal number of saved people necessary to meet the constraint against active/intentional killing. supra note 11. Suppose that to save the lives of some people. 958 (1998) (characterizing some of the arguments in Kamm. Some of the claims made by deontologists are quite compelling whereas others rest on questionable intuitions. at 966. the causal connection between an infringing act and its expected benefits (or costs) may be indirect. e. one must not only kill one person but also break a promise or inflict a short. Kamm. constructing threshold functions 97 may or may not distinguish between cases according to the allocation of benefits produced by the act (e. Brennan. the fact that the beneficiary is also the person whose rights are infringed (see also Samantha Brennan. however. 79 Org. at 390–91.” see Brennan. Brennan’s list includes the fact that the beneficiary of the infringing act is the one who performs it.41 Additional complexities are involved when a single act infringes more than one constraint. at 151 (concluding that. 89–90 (1999). and the fact that the right-bearer is part of a group whose rights are often infringed. Thresholds. 342). between a case in which the infringing act saves ten people from a moderate. It may be that in preventing a person from expressing certain views. most people do not share either of these beliefs. J. Phil. & Pub. Paternalism and Rights. supra note 34. supra note 11. and furthermore. there is no simple recipe for making such methodological decisions. Taurek. supra note 34. Brennan. & Human Decision Processes 79. no significant correlation was found between holding these beliefs and viewing the infliction of the losses as violating deontological constraints.43 At a certain point. 54–55. See Ilana Ritov & Jonathan Baron. As in economic modeling in general. supra pp. and the belief that the number of actions involved in producing the same total loss counts.42 yet the resulting threshold need not necessarily be a simple sum or a simple multiplication of the two separate thresholds. Ritov and Baron found a strong correlation between the belief that the number of actors involved in causing a certain loss counts. temporary pain and the case in which it saves five people from two occasions of such pain each). . For a list of other “candidate factors. Some notions of fairness—particularly those opposing the aggregation of harms or those that deny the feasibility of interpersonal comparisons of costs and benefits—may. 43. Protected Values and Omission Bias. 293 (1977). In principle. 24 Can. 419 (1994). see John M. the number of people participating in infringing the constraint. infra p. in the context of excluding small benefits. the accumulative effect of the two constraints requires that a greater amount of good be produced by the infringing act (compared to the case where only one constraint were infringed). 41. According to their experiments. Should the Numbers Count?. I not only infringe her freedom of speech but also break my promise not to act in this way. however.. any notion of fairness. at 390. each benefit should be considered separately. the disadvantages of such incorporation (in terms of clarity and manageability of the formal representation) outweigh the advantages. 6 Phil. 42. even if a single person gets more than one benefit). whether bounded by deontological constraints or not. and any approach to the accumulative effect of different constraints may be incorporated into a threshold function. however.g. almost any distinction between different costs and benefits. Behav. On Taurek’s objection to aggregating harms to people. be incompatible with the very use of CBA. Plausibly. Aff. At times. However. In constructing threshold functions for options. one could start from a prima facie (deontological) premise that no person is morally required (and. Another advantage of this construction is that it captures the deontological notion and prevailing intuition that people have an option to promote other people’s welfare even if the benefit they confer upon those people is smaller than the cost to themselves. Phil. and morality • F. may not be compelled legally) to maximize the overall good unless the amount of good at stake is large enough to override the threshold option. Compelling a person to sacrifice her life to save the lives of many more people is certainly such a case. options need not be absolute. Alternatively. Shelly Kagan. Agent and Other: Against Ethical Universalism. By starting from . Moderate deontology plausibly maintains that options have thresholds. however. do not infringe any constraint.. Normative Ethics 166–67 (1998). We prefer the first formalization because it better conforms with the assumption of economic rationality underlying standard economic analysis and with the recognition of deontological options. which conflicts with the person’s self-interest. prima facie (consequentialist) premise: everybody is morally required (and may possibly be legally compelled) to maximize the total good unless the sacrifice involved is large enough to override this duty. e. one could start from the opposite. along the lines discussed previously. for instance. 206 (1976). Imposing such a duty is thus justified only if the expected good produced by depriving people of their options is large enough to warrant the required sacrifice.44 44. a fortiori. not just any sacrifice imposed by the state entails an infringement of a deontological constraint. collecting taxes to finance the provision of public goods and imposing precontractual disclosure duties to ensure the efficiency of transactions. deprive people of deontological options to use their money as they see fit and to keep information for themselves. See. deontology not only imposes constraints on promoting the good but also recognizes options not to promote the good. 54 Australasian J. Incorporating threshold options into CBA would be useful when maximizing total welfare requires some sacrifice. Like constraints. The permissibility of such an infringement may be assessed using CBA subject to deontological constraints. a legal imposition of sacrifices would infringe a deontological constraint applying to the state. Threshold Options As mentioned earlier. Such legal duties do.g.98 law. Michael Stocker. at least sometimes. economics. Under most accounts. and since threshold functions for options are generally less useful than threshold functions for constraints. 45.45 Relatedly. we shall suffice with a few comments as to the possible exclusion of certain benefits and costs and to the construction of the threshold. incorporating deontological options into CBA thus entails the characterization of a threshold function. the structure of threshold functions for options would be similar to that of a threshold function for constraint (function (4) above): (12) To = B – K = b(. but who is geographically far away. there is no such duty. . Determinacy and the Duty to Aid: A Reply to . like threshold functions for constraints. courses of action that yield negative net benefit are never justified (and thus there is no option. Responsibilities.constructing threshold functions 99 As a general matter. and helping someone who needs similar help. . social. Distance. such that an act is required—rather than optional—only if the product of this function is positive. See. Since threshold functions for options. Kamm.) – k (. . in its general form. but only an option. determine not only the size of the net benefits required for justifying the imposition of a duty (with a view to maximizing overall good) but also the types of benefits and costs that should be considered in this regard. a duty may be imposed with a view to maximize the total good. Intricate Ethics: Rights. we propose that.g. while if To ≤ 0. but rather sacrificing is immoral).M. Self-injurious courses of action may call for paternalistic interventions. Proximity According to commonsense morality. under the assumption that people should maximize the good unless the cost to themselves is too high. See infra pp. or community ties between the agent and the needy persons. Violetta Igneski. the greater is the sacrifice a the presumption that people have options unless the amount of total welfare at stake is large enough. Constructing particular threshold functions for options entails various normative judgments and methodological choices. one legitimizes options even if the net benefit of the sacrifice is negative (there is certainly no duty to act under such circumstances). Since there is some overlap between these issues and those discussed in the context of constraints. In contrast. Whenever To > 0. e. . To.. the stronger the family. there is a crucial difference between helping someone who needs immediate assistance and is standing directly in front of you. and Permissible Harm 345–97 (2007). 313–47. and K is the size of the minimum amount of benefits that is required to justify the imposition of a duty to maximize the good (rather than a mere option to do so).) where B is the relevant net benefit. F. ” and goals. Probabilistic Costs and Benefits Arguably. Thomas Nagel. Promoting the Good vs. 91–93. mutatis mutandis. ranging from completely denying the relevance of benefits to distant people.100 law.49 Kamm. “the chosen pursuits. 46. 20 Law & Phil.g. Ronald Dworkin. economics. The View from Nowhere 164–75 (1986). On Mulgan theory. 47. see generally id. there is a sense that a distinction should be drawn between needs. such as providing bare necessities to the underprivileged. . e. Eliminating the Bad There is a very strong intuition that people may sometimes be required to make sacrifices in order to eliminate the bad. See supra pp. Tim Mulgan. For instance. 48. but not in order to promote the good.”47 We critically discussed this distinction and its possible formalization in the context of threshold constraints. Even within consequentialist morality. Law’s Empire 195–216 (1986). projects.48 The discussion is applicable. yet merely have an option to bear the same cost to save the lives of n people with 1/n probability of success. in the context of options. and endeavours which give life much of its meaning. The Demands of Consequentialism 173 (2001). See supra pp. Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought 1–130 (2001). she is not necessarily required (though she has the option) to donate the same amount to save the lives of 100 people when there is a 99% chance that those people will die despite her donation. to attributing more or less steeply decreasing weight to people’s welfare as the (geographic or other) distance between them and the agent increases. which is morally significant).. even if one is required to donate $250 to save one person’s life. Samuel Scheffler. such as further enhancing the welfare of the privileged (even if such sacrifice would increase aggregate welfare). 605 (2001) (arguing that the distance merely serves as a proxy to the determinacy of the situation. If one shares this moral judgment. 49. at 169–294. “the biologically determined necessities of life. at least if n is rather large. 89–91. a person may have a duty to bear a certain cost in order to save the life of another person with certainty. and morality person may be morally required to make to help them. See. then the benefit from the action may be treated in the same way we proposed to treat probabilistic costs and benefits in the context of constraints.46 There may be various ways to accommodate such judgments within threshold functions for options. y. Multiplier. In fact. and since some infringements may be accompanied by an offer of compensation. the threshold function for options may take the following form:  (x − y ) − K lny if y > 0 (14) To =  if y = 0  (x − y ) where the exponent is the natural logarithm function of y. Kagan. ed. we concluded that very often. that the person is required to suffer to bring about the net benefit (x–y).000 K×y 10 20 50 100 1. to the extent that the sacrifice refers to resources with decreasing marginal utility. such as money or time. the level of the threshold should be an increasing function of the sacrifice required of the actor. 51. K determines the inconvenience.000 8. that is. as any additional unit of sacrifice in terms of money or time entails an increasing marginal sacrifice by the actor.50 In the context of options as well.000 . 169 (rev. e. at 164. or Combined In discussing the form of threshold constraints. y 1 2 5 10 100 1.. At the same time. The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Conceptions 20. For instance. such as the constraint against lying. may arguably be infringed even if nobody is harmed. or at least combined—additive and multiplier—thresholds may be warranted to avoid a threshold of zero. 52.000 K lny 1 5 40 200 40. a multiplier:51 (13) To = (x – y) – K × y where x is the benefit to others. supra note 44. Samuel Scheffler. y is the cost to the actor. In this function the value of K increases exponentially as y increases.000.000 10. 93–95. The following table compares the value of the threshold in functions (13) and (14). See supra pp.constructing threshold functions 101 The Threshold’s Form: Additive. 1994). additive.g. for K = 10. and K is a multiplier. multiplier thresholds better capture the moral judgments of threshold deontology than additive ones.52 50. it stands to reason that the level of the threshold should increase exponentially. since some deontological constraints. See. and morality Multiplier threshold functions for options. if one excludes the welfare of distant people or benefits whose probability is too low (and so forth. 15 Law & Phil. She is under a moral duty to maximize the good. as considered above).54 One may reflect this judgment by holding that To > 0 is not a sufficient condition to override an option. 54. In addition. such as (13) and (14). however. Larry Alexander. . even when the cost to the actor is zero or trivial. it stands to reason that the law should not restrict people’s options unless the amount of good produced by such a restriction exceeds a certain minimum. To express this judgment. her entire career. it seems to us that such a minimum is indeed warranted in the legal sphere. so long as the total good she can produce is lower than a certain minimum. imply that when a person can promote the total good at zero cost to herself ( y = 0). the cost to the 53. Given the basic differences between the means used to enforce legal norms and those used to enforce moral norms. Affirmative Duties and the Limits of Self-Sacrifice. Even in that case. so will be the threshold above which she is subject to a duty.53 In the context of constraints.102 law. Cf. she enjoys no option. Maximal Sacrifice? Are there sacrifices that are so great that one would never be morally required to make. economics. In this case. the implication that lying or promise breaking that involves no (uncompensated) harm does not infringe a constraint. even at no cost to herself. If we judge that a person is under no duty to promote the good. where the additive factor expresses the minimal net benefit required to give rise to a duty. would seem objectionable to some. While we have no clear intuition as to the right answer to this question in the moral sphere. 65 (1996) (critically discussing the possibility of an “invariant cap” on the sacrifice a person may be expected to make to save people he bears responsibility to). This is because when the cost to the agent is zero. to act when the cost is zero. combined (multiplier and additive) functions should therefore be employed by legal policy-makers. This would be the case where all benefits to other people brought about by the sacrifice are excluded from the threshold function. then a multiplier threshold does not reflect this judgment. It is unclear whether the same is true in the context of options. regardless of the net benefit they would yield? A positive answer to this question may hold that no person should be required to sacrifice her life. then it may still be possible that under a multiplier threshold one would have an option. one should prefer a combined (multiplier and additive) threshold to a multiplier one. or her dignity—even for the sake of saving the lives of millions of people. and not a duty. the primary question is not whether the agent has an option but whether the state is justified in infringing the constraint against actively/intentionally harming people. In most. Kagan. but in some contexts. one could retain the agent’s option in all but very extreme cases simply by using an extremely high multiplier. • G. be undesirable because it would set a very high threshold even in cases that do not involve extreme sacrifices. Answers to these difficult questions are hard to come by on the moral plane. rather than threshold functions for options. if not all.000 to charity).constructing threshold functions 103 agent must not surpass a certain upper limit. laying down very demanding legal duties would not only take away people’s options but also constitute an infringement of a deontological constraint by the state. no person should be required to donate more than $10. at 164–65. however. cases. or exponentially (the richer a person is.55 Such a construction may. In the legal sphere. Once again. Such a ceiling may be set in absolute terms (for instance. the questions themselves take on a different form. In such cases. Normative economic analysis uses formal notation to represent a social welfare function (SWF). the dissimilarity lies in the different ways in which moral and legal norms are enforced. Traditionally. it would make more sense to set it proportionally (no person should be required to donate more than 10% of her income). the greater the percentage of her income she may be required to give to charity). such as monetary and nonmonetary (notwithstanding the fact that all costs might have to be monetized to facilitate the use of the threshold function). supra note 44. . the SWF is readily 55. hence. is quite different from the question of whether the legal system may impose such duties. however. The question of whether a person is morally required to donate 50% of her income or forgo an extremely significant personal project in order to help the underprivileged. along the lines described in the previous sections. Instead of setting such a ceiling. Different ceilings should be defined for different types of costs. Such questions should primarily be approached using deontologically constrained CBA. Concluding Remarks This chapter outlined a general framework for implementing our proposal. the social policy reflected in the SWF is the maximization of aggregate social welfare. . 18. constraints must not be infringed unless sufficiently large good (or bad) outcomes are at stake. economics. Following moderate deontology. threshold functions set the minimal net benefit of the action. See supra p. policy. Deontologically constrained CBA does not determine the pertinent constraints on maximizing social welfare based on people’s preferences but rather on a normative judgment. or rule that has to be produced to justify an infringement of a constraint (or to remove an option not to promote the good). using threshold functions. Rather. thus excluding others. 56. the pertinent net benefit includes only certain types of costs and benefits. and morality translated into a simple CBA. It integrates such values as human dignity and autonomy as constraints on promoting the good. See supra pp. 30–32.57 An infringement of a constraint is not yet another “cost” of the pertinent act or rule. Various substantive and methodological objections may be raised against our proposed analytical framework. 57. including its incompatibility with the alleged normative neutrality of standard CBA and the challenges it faces in quantifying and monetizing moral constraints. Economists have long acknowledged that a SWF may take into account not only aggregate social welfare but also its distribution.104 law. Typically. rather than as components of the good to be promoted. to be considered along with other costs and benefits.56 We suggest that a SWF can and should reflect deontological constraints (and options) as well. The following chapter addresses these objections. Hausman & Michael S. Michael B. See. section D considers the argument that the use of threshold functions by legal policy-makers and the enactment of legal norms that verbally embody such functions are incompatible with the expressive role of legal norms. A. However.1 The choice between competing notions of distributive justice within the consequentialist framework (such as mere maximization of utility or a Rawlsian maximin) is anything but value-free. McPherson. Section B discusses difficulties of quantifying and monetizing moral constraints. “scientific” mode of analysis is false. Dorff. Rev.g. Rev. L. Daniel M. as many commentators have long pointed out. or both. the idea that standard CBA is a value-free. 899. Section C examines the claim that using deontologically constrained CBA would lead to setting the constraints too low. methodological. this chapter considers possible objections to our proposal. The same is true regarding the choice 1. Section A addresses the claim that adding deontological constraints to standard CBA will undermine its normative neutrality. Cal. 863–88 (2002). 75 S. 915–21 (2009). 105 . and may come from economists. Why Welfare Depends on Fairness: A Reply to Kaplow and Shavell. e. Undermining the Normative Neutrality of Economic Analysis • While conceding the normative flaws of standard CBA. deontologists. 56 UCLA L. Joseph William Singer. or both. Finally.. Normative Methods for Lawyers. 847. economists may still endorse a division of labor between economic analysis and deontological concerns to preserve the alleged value-free and objective nature of economic analysis.• five Addressing Possible Objections following the discussion of the need to integrate deontological constraints with CBA and the demonstration of how such integration may be formalized. Economic Analysis and Moral Philosophy 109–20 (1996). These objections are principled. The Moral Opacity of Utilitarianism. Howard F. Criticizing the Economic Analysis of Law. Econ. Very few would deny that maximizing human well-being is a worthwhile goal.”). 15–16. infra pp. 78 J. eds. Ethics. What deontologists deny is not that outcomes count but that outcomes are the only thing that ultimately counts. A Liberal Theory of Social Welfare: Fairness. What do Economists Analyze and Why: Values or Facts?. Little. . Cf.. it is unclear whether the theory of the good underlying standard CBA should be the satisfaction of actual preferences or the satisfaction of rational or ideal ones.g.6 Second.4 Another possible objection is that even if standard CBA reflects normative judgments.J. Cf.2 Even the Pareto criterion entails nontrivial normative judgments. There is nothing more “subjective” in setting objectively defined constraints to maximizing well-being than in not setting such constraints.5 In response. and Consequences: A Critical Reader 105 (Brad Hooker et al. 5. economics.D. e. once these judgments have been made.106 law. one may argue that it is neutral in the more limited sense that it rests on uncontroversial normative judgments..M. Partha Dasgupta. Utility. 31–32. 323–25.J. See supra pp. The Impossibility of a Paretian Liberal. the current state of 2. Pareto. 6. and the Law (1988)). and Respect for Dignity: A Kantian Perspective. 110 Yale L. 152 (1970) (demonstrating the potential incompatibility of the Pareto principle with liberal values and concluding that the former is unacceptable as a universal rule). 21 Econ. Rules. in Morality. Economics. White. David Lyons. Rather than claiming that standard economic analysis is free of normative judgments. & Phil. besides the point. Amartya Sen. 1441. Morals. Jeremy Waldron. Such a consensus is. 3. See. while adding deontological constraints to economic analysis obviously reflects a normative judgment. 1460 (1990) (reviewing Jules J. Fairness Versus Welfare 52–58 (2002) (demonstrating the potential incompatibility of the Pareto principle with nonconsequentialist concerns and concluding that the latter should be ignored). 221–22 (2005) (“[T]he ethical foundations of [modern economics] were constructed over five decades ago and are now regarded to be a settled matter. 99 Yale L. Pol. and Politics 23 (2002) (“Some feel that economics becomes unscientific if value judgments are admitted: they are trying to fly without wings”). 173 (2000) (arguing that it is possible to construct a deontological theory subject to the constraint that every constraint would be overridden if following it would infringe the Pareto principle). however. Coleman. it is this very controversial claim that lies at the center of our discussion. Econ. Soc. Markets. Chang. Consent. the routine use of CBA requires merely empirical. 4. Louis Kaplow & Steven Shavell. it should first be noted that many of the normative questions underlying CBA are not yet settled. I. 49 (2009). value-neutral investigations. 2000) (making a similar argument in response to the claim that utilitarianism rests on “objective grounds” and its dictates determined by “empirically determinable facts”). and morality of the underlying theory of the good.3 Thus. Cf. Mark D. 221. and the Pareto Principle. For example. 67 Rev. disregarding such constraints does so as well. the emergence of methodological conventions regarding the handling of these questions is likely to make the pertinent normative judgments less conspicuous. See Hausman & McPherson. consideration of deontological concerns seems both essential and feasible. to the extent that one can distinguish between normative and positive analyses. supra note 1. 29 J. Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health 12–13 (2008). Matthew D. Posner. there is no compelling reason why economic analysis of law should not pay heed to moral concerns and incorporate them into CBA. Constrained CBA would contribute to the operationality of moderate deontology and may even enrich the philosophical debate about threshold constraints. and particularly those engaging in economic analysis of law.7 constrained CBA is primarily germane to the former (though it may also contribute to positive analysis of people’s behavior. one should distinguish between academic use of CBA and its use by governmental agencies. . this distinction is very often blurred. A related objection is that even if standard CBA reflects normative judgments and even if some of these judgments are still debated.8 Authorizing the agencies to engage in philosophical inquiries would arguably broaden their discretion and complicate the oversight process. 8. According to this view. In actuality. Revesz & Michael Livermore. Just as mainstream legal theory has embraced the economic perspective and as mainstream economic analysis of law is gradually embracing the insights of cognitive psychology (the so-called “behavioral law and economics”). Cognition and Cost-Benefit Analysis. Adler & Eric A. the requirement to conduct CBA restricts the agencies’ discretion and reduces the risk of error. As regards academic analysts. Constrained CBA may benefit from similar academic refinement over time. More precisely. economists do not have the philosophical expertise necessary to engage in the moral deliberation required for setting deontological constraints. along with other constraints imposed 7. embodying such constraints). deontological constraints should not be incorporated into CBA but rather set by other governmental authorities. 1059 (2000). In considering this argument. Richard L. Cass R. Inasmuch as economic analysis of law aims to enhance the normative discussion of legal issues. as has been the case with standard CBA. and of the legal system. at 214–20. New Foundations of Cost-Benefit Analysis 101–23 (2006). Legal Stud. influenced by ordinary morality. Sunstein.addressing possible objections 107 standard CBA reflects decades of methodological refinement. As regards regulatory agencies. 313–15 (2000) (tentatively considering the desirability of institutional separation between consequentialist inquiries and setting the deontological constraints). St. rather than regulatory agencies. Schaffer. General Another objection to incorporating deontological constraints into economic models has to do with the difficulty in quantifying and expressing such constraints in monetary terms. 28 Fla. Cost-Benefit Analysis 160 (1978) (“A project must satisfy a number of diverse constraints.”). .[These constraints] exclude alternative projects that obviously are not feasible . 9.108 law. economics. . and should. Rather than broadening their discretion. Such constraints may be budgetary. or the sum for which they would be willing to give away something they already have—their willingness to accept (WTA). Thus. the explicit application of such functions may actually facilitate greater transparency and accountability of agencies’ activities. See Matthew D. L. constitutional and institutional considerations dictate that politically accountable bodies such as Congress. [For example] benefits and costs cannot be divided along racial lines. • B. . the regulatory agencies and other governmental branches may. . . Some may argue that deontological constraints cannot be monetized in the same way. economic models may rest on an empirical. . 241. should construct threshold functions.10 It does not follow. however. either mathematical or verbal. Cf. Agencies specializing in measuring and evaluating costs and benefits are well-suited to employ threshold functions requiring assessment of the regulation’s harms and benefits. Rev. Standard economic models assume that people have a complete ordering of preferences regarding anything that may affect their well-being and that they are able to attribute a dollar value to any entitlement (or lack thereof). routinely employ this function. Sassone & William A. . 10. Once the ethical and policy judgments are made and a threshold function is constructed. or institutional . factual examination of people’s willingness to pay (WTP) for anything. Adler. that—inasmuch as agencies face decisions involving deontological constraints—these constraints cannot or should not be incorporated into CBA. U. social. Peter G.9 Indeed. legal. at least in principle. Quantification and Monetization Difficulties 1. Beyond Efficiency and Procedure: A Welfarist Theory of Regulation. political. and morality on agencies. See also infra pp. 168. As Richard Posner notes about his model of the regulation of free speech: “I offer these formulas as a heuristic. 184–89. since deontological constraints rest on normative judgment. Another possible response is that deontological constraints need not be expressed in monetary terms. Frontiers of Legal Theory 62. infra pp. This difficulty is exacerbated when economic analysis addresses nonmarket issues such as the hearsay rule in evidence law and criminal liability. The above-mentioned two responses bypass the objection that deontological constraints are not monetizable by indicating that a meaningful economic analysis subject to deontological constraints may be conducted without such monetization. the less it is necessary to commensurate different costs and benefits. Posner. then no monetization of either human life or of K is necessary. Even in distinctively market contexts. a way of framing and thinking about the regulation of speech. For example. . of a specific contractual term. Rigorous. the usual technique economists use to monetize goods. explain and predict the way people would act under different legal regimes. 12. As demonstrated.addressing possible objections 109 One possible response to this concern is that quantification and measurement problems are not unique to deontological constraints. It is often practically impossible to determine. Richard A. Despite the impossibility of filling in the equations with actual dollar amounts. 195–211. and 342–46. rather than as an algorithm for use by judges.12 The more costs and benefits are excluded from the function. for instance. economic analyses of such issues often yield important insights. threshold functions often disregard some or many of the costs and benefits involved. 86–93. But is the claim that deontological constraints are not monetizable warranted? Indeed. 68 (2001). and indicate what rules or standards may bring about the greatest social utility under specified conditions. 147–49. it is often more revealing). and the same holds true for constrained economic analysis. qualitative economic analysis is not necessarily less revealing than a quantitative one (in fact. the only benefit that may ever justify the active/intentional killing of x innocent people is saving the lives of at least K times x people. the above assumptions of standard economic analysis are problematic. if under a certain threshold function. or even the value for a certain person. legal entitlements. and other things—people’s WTP or WTA—is 11.”11 Economic models may highlight the crucial factors and their interrelations. See supra pp. the market value. the additional step of imputing the resulting measure to people’s ideal judgments is largely fictitious and essentially superfluous (and if one cannot sensibly make this translation. Hence. See. and morality inappropriate in the present context. is arguably essential for human identity and human flourishing.15 Beyond these general intuitions. These interrelated concepts and their implications for ethics. Commensuration as a Social Process. Rethinking Commodification: Cases and Readings in Law and Culture (Martha M. in particular between the market and nonmarket spheres. and Practical Reason (Ruth Chang ed. Incommensurability. 313 (1998). Stevens. 1997).13 In this respect. no reference to ideal preferences would do the work). Soc. incomparability.14 Preserving the separation between different spheres of valuation. law. See generally Michael Walzer. Ertman & Joan C. even a move from actual to ideal preferences would not overcome the difficulty. people strongly resent even considering questions such as what is the monetary worth of one’s child or of one’s sexual autonomy. e. we have to address the objection that monetization of deontological constraints is impossible or undesirable because deontological constraints are incommensurable with well-being. L. Jonathan Baron & Mark Spranca.. 27–29.16 13. 70 Org. Behav. 24 Ann. Rev. Psychol. The Morality of Freedom 321–66 (1986). 255 (1997) (arguing that people find questions regarding the monetary worth of one’s children or one’s loyalty to her country morally offensive). 1 (1997) (documenting people’s resistance to trade-offs between deontological concerns and economic values). Tetlock. Williams eds. See supra pp. Pa. money. If one can sensibly translate deontological constraints into monetary terms. 18 Pol. Elizabeth Anderson. Spheres of Justice 95–128 (1983). Sunstein. 146 U. & Human Decision Proc. Protected Values. We shall take these claims in turn. Symposium. Anderson. economics. Contested Commodities 46–53 (1996) (criticizing the notion of strict separation between the market and nonmarket domains). Value in Ethics and Economics (1993). and incommensurability. Wendy Nelson Espeland & Mitchell L. trust. 1169–1731 (1998). Not only such things as human life.. supra note 15. Law and Incommensurability.110 law. Taboo Trade-offs: Reactions to Transactions That Transgress Spheres of Justice. 16. Alan Page Fiske & Philip E.g. 2005). and economics. have been extensively debated in the literature. Incomparability. Noteworthy contributions include: Joseph Raz. and liberty cannot and should not be traded in market transactions. or at least with the ordinary measure of well-being used in economic analysis. there are three more concrete claims that can be made against monetizing deontological constraints: anti-commodification. including the incommensurability of wealth and deontological constraints. 15. There is indeed a deeply held intuition about the incommensurability of different spheres of values and relations. Rev. Cass R. 14. Margaret Jane Radin.. Incommensurability and . Donald H.17 Such expansion of the market domain is considered detrimental to human flourishing. Cal. and relations. thus ignoring their intrinsic value.18 For our purposes. 43 Duke L. it is done to constrain economic analysis that would otherwise treat anything as commensurable with anything else. constrained CBA may quantify deontological constraints in monetary terms without turning them into commodities. 779 (1994). See also Scott Altman. L. An Uneasy Case Against Property Rights in Body Parts. 293 (1991). 65 S. Anti-Commodification It has been argued that monetization might bring about commodification. 92 Mich. 18. 995. 1031 (2000). values. 62 S. 1056–75 (1989). On the contrary. 17. See Margaret Jane Radin. (Com)modifying Experience. or at least to making people view them as commodities. 281–84 (1994). Legal Stud. Stephen R. Valuation in Law.J. When monetization is based on normative deliberation rather than on market prices (or people’s preferences more generally). at 95–122 (critically discussing the “domino theory.20 In a similar fashion. 20. and on questionable empirical assumptions regarding the effect of monetization on people’s perceptions of goods. this is not done with a view to transforming the values underlying these constraints into tradable goods. For a nuanced analysis of the conflicting arguments and assumptions. it is perfectly compatible with maintaining the nontradability and even inalienability of the monetized object. L. . 29 J. When deontological constraints are translated into money for the purpose of incorporation into CBA. Cal. Thus. without thereby transforming them into tradable goods19 or necessarily committing to a commodified conception of compensation.addressing possible objections 111 2. Rev. Martha C. See Radin. Rev. supra note 15. L.” according to which one “cannot both know the price of something and know that it is priceless” and therefore commodification of an object precludes coexistent noncommodified understanding of the same object). 19. Compensation and Commensurability. Authority and Value: Reflections on Raz’s Morality of Freedom. this thesis rests on debated philosophical claims regarding human nature and flourishing. courts routinely award monetary damages for loss of limb or life in tort actions. Rev. 1005. 11 Soc. Nussbaum. Phil. However. It may lead to expansion of the market domain by turning more and more objects into tradable commodities. Munzer. Regan. 56 (1993). it is sufficient to point out that there is no necessary link between monetization and commodification. & Pol’y 259. see Radin. supra note 15. The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis. at 322 (Raz refers to “incommensurability” while we use his formulation to define incomparability). it seems morally permissible to touch someone’s elbow. we shall use the term “incomparability” to denote the inability or undesirability of ranking two options or items and the term “incommensurability” to denote the inability or undesirability of precisely measuring two options or items by some common scale of units of value. 11 Envtl. Even if the compared courses of action or values are different in kind and cannot be evaluated on the same scale. supra note 21.22 Two options may be comparable. Richard Craswell. to save another person’s home from burning down. at 19–21.112 law.e. Welfare Economics.24 21.23 While incomparability is intuitively appealing. While the notion of rough equality may provide a better understanding of apparent incomparabilities. Moral Dilemmas 55–72 (1995).21 Two options are thus incomparable if it is neither true that one of them is better than or preferable to the other nor true that they are of equal value. 24. incomparability entails incommensurability. See Jonathan Aldred. 1419. 23–27. and morality 3. or even to push him. and impermissible to torture an innocent person to save another person’s car from being destroyed. they are incommensurable). Raz. ordinally compared. Well-Being: Its Meaning. it means that life and liberty are considered lexically more valuable than any sum of money. namely that of rough equality. Thus. Note that even incomparabilists do not claim that people do not actually choose among “incomparable” options. Measurement. and the Law. Rather. a comparison may still be possible. at 4–5.g. See generally Chang. Values 27 (2002). Incommensurability. Daniel Statman. Raz. it poses difficulties to money commensurability and thus to CBA. in Incommensurability. . that is. there may be an additional relation between two options. supra note 16. economics. it does not imply that human life or liberty is incomparable with money. in Incommensurability. Rev. 22.. Chang. Incomparability Following Ruth Chang’s suggestion. supra note 16. James Griffin. 96–98 (1986). Incommensurability and Rough Equality. e. These judgments rest on comparisons. L. 23. and Practical Reason. For example. Even when it is asserted that no monetary gain whatsoever justifies the deliberate killing or enslavement of a person. at 1–2. there are strong arguments against this notion. supra note 16. Incomparability. Introduction. supra note 21. Ruth Chang. Cost-Benefit Analysis. James Griffin. but the reverse is not necessarily true.. See. and Moral Importance 79–81. even if a cardinal comparison between them is impossible (i. As some commentators have pointed out. their only claim is that such choices cannot be justified on the basis of meaningful ranking of the options. 146 U. at 335–40. Pa. 1423–24 (1998). Incommensurability: What’s the Problem?. Pa. 347. Priceless 39–40 (2004) (criticizing CBA of health and environmental issues). Regan. An economist may thus hold that there is no acceptable way to Incomparability. at 1058–59. supra note 23 (arguing that even if theories of incommensurability are correct with regard to individual decisions.addressing possible objections 113 Making a personal choice between a career opportunity and family commitments. L. & Human. 26. whereas objections to the notion of incommensurability are frequently made by proponents of the economic methodology. Craswell. It simply indicates that the stakes are high and that a cautious weighing of the alternatives is warranted. Arguments of incomparability and incommensurability are thus often intertwined with critiques of consequentialism and economic analysis. supra note 16. supra note 16. and Practical Reason. the method they use to that end— aggregation of WTP or WTA—is inapplicable to deontological constraints. at 64. Schroeder. at 1059–64. L. as long as individuals do make choices. on the one hand. recall that money commensurability is a standard feature of CBA. Global comparability is a characteristic feature of consequentialism. at 35. Incommensurability We thus arrive at the argument that deontological constraints are incommensurable with money. one could have flipped a coin. and. Regan. which rest on a normative judgment rather than an aggregation of preferences. 1641 (1998). Jeanne L. To put this argument in perspective. Although economists regularly monetize such things as human lives and body integrity. supra note 20. Banishing the Bogey of Incommensurability.26 Drawing the battle lines in this way can be misleading.25 Finally. Larry Alexander. See Radin. it is neither available to consequentialists nor to moderate deontologists. The Laconomics of Apples and Oranges: A Speculative Analysis of the Economic Concept of Commensurability. Frank Ackerman & Lisa Heinzerling. 4. 25. Instances of such correlation include. Rev. But this anguish does not prove that the values involved are incomparable. or a public choice between different policies having both monetary implications and health and safety effects. these theories need not affect policy-making based on people’s revealed preferences). 352 (2003). supra note 16. even if incomparability is a valid notion. on the other hand. Had the alternatives been truly incomparable. and threshold deontology presupposes comparability between constraints and promoting the good (or avoiding the bad). . 15 Yale J. however. 146 U. may be an agonizing process. At the same time. 28. is rather illusive. In any event. For example. we have already addressed and rejected the idea that economic analysis can ever be value-free. then one should be able.27 From a different angle. at least theoretically. many deontologists object not only to consequentialism but also to a theory of the good based on preferences satisfaction. See Larry Alexander. Just as it regularly monetizes such things as human lives. 910–11 (2000). and morality monetize deontological constraints. economics. assume (counterfactually) that standard CBA unequivocally calls for breaching contracts whenever performance is inefficient (the “efficient breach doctrine”). Rev. there is no necessary connection between these positions. when it comes to issues such as the monetary value of freedom of speech or truth telling. at 27. First. and such discretion may well reflect normative choices. To be sure. personal injuries. the scope of any threshold constraint in a given legal system may. . 893. The methodological difficulties of identifying people’s preferences almost inevitably entail the exercise of discretion. supra pp. As regards the economist. and all the more so to quantifying preferences by a monetary scale. be derived from a comparison between the existing rules and the rules that would have been set on a purely consequentialist basis. Yet as far as we can see. the supposedly strict division between factual identification and aggregation of preferences. the moderate deontologist’s objection to consequentialism need not entail a belief in the incommensurability of constraints with money. and between normative determinations. 294–97. it is not inconceivable to attribute monetary value to a deontological constraint. 37 San Diego L.114 law. 24–27. See generally infra pp.28 The extent to which existing contract law deviates from the efficient breach doctrine by “excessively” deterring breaches may reflect a deontological constraint against promise breaking. On a higher level of abstraction. economic analysis should also be able determine the monetary value of deontological constraints based on a normative judgment. If all other variables are monetized. economists should feel more comfortable with monetization of deontological constraints if threshold constraints on the factoral level are conceived of as resting on consequentialism on the foundational level. and the existence value of wild ecosystems. at least sometimes. The following arguments are meant to convince the economist and the deontologist that monetizing deontological constraints is both feasible and worthwhile. Deontology at the Threshold. Yet. this is a distorted perception. 39. she may deny that it is possible or desirable to set a deontological constraint ex ante in very exact terms and prefer a vague standard. at 214–20 (demonstrating how people’s moral dispositions affect.29 As for the moderate deontologist. validity. tradeoffs between things such as safety and money (representing any alternative use) are unavoidable. . However. at 102–14 (analyzing the pervasive interactions between values of personhood and community. Cf. or concede to it entirely. to extract the monetary value of the legally imposed constraint as well.addressing possible objections 115 least in theory. See Hausman & McPherson. 52 (1977). James Griffin. at 1070. Robert Sugden & Alan Williams. Are There Incommensurable Values?. the notion that such values as basic freedoms and human life are incommensurable with money at least partially stems from the fact that money has no intrinsic value. supra note 1. supra note 16. she cannot deny the comparability of constraints and the goodness or badness of outcomes. Regan. supra note 15. or enforceability of an action according to whether the deontological constraint has been violated or overridden. In the legal context. A principled antimonetization implies that CBA and economic methodology should only apply to market issues (and even in this context they would face considerable difficulties). even market behavior is subject to various nonconsequentialist moral and social norms. including saving lives. Aff. Radin. In general. 30. economic outcomes). arguably one should either reject money commensuration tout court. Since it is difficult to draw a boundary between a willingness to monetize things such as physical pain and unwillingness to monetize deontological constraints against actively/intentionally harming people. The difficulties stem from the fact that. 31. just as a court must ex post determine the monetary damages for loss of life or limb. The Principles of Practical Cost-Benefit Analysis 178–97 (1978) (discussing the inference of valuations underlying actual policies). This recognition is one reason to prefer moderate to absolutist deontology. connecting greed and materialism. Money often bears a negative symbolic significance. It is merely a means to achieve other goals. Money can be and is often used to promote the most intrinsically valuable goals. and are affected by. at least under appropriate circumstances. 7 Phil. legally protecting human rights. since she acknowledges that enough good or bad outcomes may override a deontological constraint. & Pub.31 Taking this position seriously would not only rule out the 29. and the market). and creating inspiring works of art. so too must it determine ex post the legality.30 As unfortunate as it may be. both descriptively and normatively. a world without economic analysis of nonmarket issues is not inconceivable. it would be only “to avoid catastrophic moral horror”).. Charles Fried. doing away with CBA as a governmental decision procedure and with economic analysis of law seems most undesirable.* (1974) (if constraints may ever be infringed. economics. Rev. 783–84 (2005) (arguing that ordinarily deontological constraints may be overridden in “emergency situations” only). Setting Constraints Too Low While moderate deontologists should find economic analysis subject to constraints more acceptable than standard economic analysis. and the Death Penalty. such monetization is not necessarily essential to modeling constraints. 58 Stan. . Carol S. and human rights). deontological constraints are ordinarily thought of as violable only in unusual cases. No. As a matter of pure logic. e. and monetization based on normative deliberation is not impossible. However. n. L. Deontology. criminal law. while monetization poses a difficulty regarding the incorporation of deontological constraints into economic analysis. 751. See. Shelly Kagan. To be sure.” if there is a finite threshold at all). In sum. Capital Punishment Is Not Morally Required: Deterrence. but also the very use of CBA in such spheres as health and safety regulation and environmental protection (not to mention family law. The Limits of Morality 113 (1989) (arguing that moderate deontologists believe the threshold of the constraint against harming is “quite high.116 law.32 The deontologist believes that values such as human life and basic liberties take priority over the good and should not be routinely traded off against satisfaction of preferences. We submit that it is preferable to address deontological concerns as constraints on CBA rather than to either ignore them altogether or deal with them separately as secondary considerations. Steiker. State and Utopia 29. • C. But whatever the normative deficiencies of economic analysis. Robert Nozick. they may nevertheless object on the grounds that it would lead to constraints that are set too low. and morality incorporation of threshold constraints into CBA. deontological thresholds may be set at any point higher than zero (consequentialism) and lower than infinity (absolutist deontology). Anarchy. The very idea that deontological constraints are commensurable with well-being may push 32. it existed only several decades ago and still exists in most parts of the globe.g. Right and Wrong 10 (1978) (maintaining that constraints may be infringed to avoid “the catastrophic”). Moore. a statute authorizing the torture of a suspect terrorist or the killing of an innocent person. Torture and the Balance of Evils. They also express attitudes. Michael S. 23 Is. 22–24. rather low thresholds may actually capture prevailing moral intuitions. shape public perceptions. even in the context of the constraint against harming people. See supra pp.33 and the incorporation of constraints into economic models is likely to reinforce this tendency. one would not go to the trouble of calculating costs and benefits against a deontological threshold if it is only in circumstances of colossal catastrophe that the analysis would be relevant.35 At the same time. and may thus inflict “expressive” harm. Incompatibility with the Expressive Role of Law Deontologists (and consequentialists) may object to determining the permissibility of infringements through the construction of explicit threshold functions on the grounds that using such functions is incompatible with the expressive role of law.36 • D. such as the constraints against lying or promise breaking. L. 36. The deontologist’s concern that our proposal would lead to setting lower thresholds is therefore not groundless. Frederick Schauer. we note that nothing in our proposal necessitates lower thresholds. facing the questions of when and why extremely high constraints are justified may not be a bad idea.addressing possible objections 117 in the direction of lower thresholds. 1215 (1998) (discussing the likely effects of decision-makers’ dispositions regarding commensurability (or incommensurability) of values and courses of action on their decision procedures and actual decisions). considerations of long-term and indirect effects make even act-consequentialists rather cautious in allowing infringements of commonsensical moral prohibitions. Pa. Instrumental Commensurability. As a practical matter. supra pp.34 Moreover. Additionally. Rev. This objection rests on the notion that legal provisions do not only impose duties and convey rights. Direct and Oblique Intention in the Criminal Law 40–41 (2002). 35. L. . In response. Rev. 330–31 (1989). Itzhak Kugler. For instance. 34. In general. 52–53. 24–27. 280. cf. one may point out that in certain contexts. the present concern is considerably less compelling if the justification for threshold constraints on the factoral level rests on foundational consequentialism. if and only if such torture or killing is expected to save 33. 146 U. See supra pp. one should distinguish between different forms of legalizing infringements. L.bundesverfassungsgericht. Alon Harel & Assaf Sharon. Public Comm. for instance.37 yet it adds to these critiques an institutional aspect.L. and morality at least 100 lives with sufficiently high probability. supra note 40.g. available at http://www. (forthcoming). Richard A. 1481. e. 38. According to this objection.M. 15. supra note 40. against Torture in Israel v.html. HCJ 5100/94 Public Comm. 39. See. Judgment of the Bundesverfassungsgericht [BVerfG] [German Federal Constitutional Court] Feb. An English translation is available at 38 I. “Necessity Knows No Law”: On Extreme Cases and Uncodifiable Necessities. including public officials.).g. can be considered disrespectful of human dignity. See also Article 8(2)(b)(xxiii) of the Statute of the International Criminal Court. at § 128.41 At the core of this view lies the concern that formal legitimization of infringements is objectionable from a deontological perspective and undesirable from a consequentialist one. The two paradigms are an explicit ex ante authorization to infringe a constraint under specified circumstances and 37. 60 U. BVerfGE. e. This objection partially overlaps with the critique leveled against moderate deontology in general and the opposition to monetizing constraints. Rev. See. namely that using threshold functions by policy-makers and enacting legal norms that verbally embody such functions are especially objectionable due to the expressive effect of such schemes. respectively. State of Israel. 73–74. .38 but such acts should only be evaluated ex post factum.. 88 Minn. 1526–34 (2004). but did not rule out the possibility of granting a criminal law defense to officials who resort to such measures if the action is deemed justified ex post. Agents. Toronto L.J. 40. in the German Constitutional Court’s judgment regarding the validity of a statute authorizing officials to shoot down an aircraft that is being wielded as a deadly weapon and in the judgment of the Israeli Supreme Court regarding the use of force in interrogations. Not a Suicide Pact: The Constitution in a Time of National Emergency 152–58 (2006).39 This position is implicit.40 In both cases. 41. 1471 (1999) (Isr. See Judgment of the Bundesverfassungsgericht. 53(4) PD 817. at § 38. Oren Gross. against Torture in Israel v. 2006. 52–53 and 108–16. it is undesirable to formally authorize such infringements.. To assess this argument. de/entscheidungen/rs20060215_1bvr035705. See also supra pp. Posner. economics.118 law. See supra pp. State of Israel. Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience. while infringements of deontological constraints may sometimes be justified. 1 BvR 375/05. the courts held that granting ex ante authorization to inflict such harm is unacceptable. may act extra-legally when necessary in the face of calamity. addressing possible objections 119 an absolute ex ante prohibition coupled with a willingness to justify or excuse infringements ex post. A system of ex ante authorization may vary according to several factors.42 These include the identity of the authorizing body (the legislature, the executive, or the courts);43 the level of specificity of the authorization and the corresponding scope of discretion left to the actors; the public or secret nature of the authorization; and its timeframe (whether it is limited to periods of war or emergency).44 Absolute ex ante prohibition coupled with ex post assessment of infringements may similarly take different forms. The ex post assessment can be formally conducted by a judicial body, or informally carried out through public and political deliberation. The legal effect of finding the infringement permissible may also vary, constituting either a criminal law defense of “excuse” or one of “justification.”45 Taking cognizance of these distinctions, one may object to explicitly authorizing in advance certain infringements because such authorization is likely to bring about unjustified infringements. It may lead to routine use, or at least routine consideration, of measures that should be taken, or even considered, only in extreme and rare circumstances.46 Moreover, granting such powers may be misinterpreted as imposing a duty to infringe a constraint and may thus result in a large number of infringements. In certain 42. For a comparative review, see, e.g., John Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of Emergency Powers, 2 Int’l J. Const. L. 210 (2004). 43. For instance, it was suggested that aggressive interrogation techniques should be implemented on the basis of judicial “torture warrants.” See Alan M. Dershowitz, The Torture Warrant: A Response to Professor Strauss, 48 N.Y.L. Sch. L. Rev. 275 (2003); Gross, supra note 39. 44. Cf. Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism (2006); Oren Gross, Chaos and Rules: Should Responses to Violent Crises Be Constitutional, 112 Yale L.J. 1011 (2003). 45. Miriam Gur-Arye, Can the War Against Terror Justify the Use of Force in Interrogations? Reflections in Light of the Israeli Experience, in Torture: A Collection 183 (Sanford Levinson ed., 2004). See also Posner, supra note 38, at 152–58 (suggesting a judicial doctrine of “national security necessity,” that would extend a form of qualified immunity “to national security officials who violate a constitutional right in good faith in compelling situations of necessity,” as a better and simpler alternative to presidential pardons). 46. Henry Shue, Torture, 7 Phil. & Pub. Aff. 124, 141 (1978) (arguing that while torture may be justified when it is the least harmful means available to secure a supremely important aim, it should nevertheless be strictly prohibited, since “[a]ny practice of torture once set in motion would gain enough momentum to burst any bonds and become a standard operating procedure”); David Luban, Liberalism, Torture, and the Ticking Bomb, 91 Va. L. Rev. 1425, 1446 (2005) (contending that once coercive interrogation is allowed in any circumstances, it will be used casually, and a “culture of torture” will come into being); Harold Hongju Koh, Can the President Be Torturer in Chief ?, 81 Ind. L.J. 1145, 1165 (2006). 120 law, economics, and morality contexts, for instance in the case of authorizing coercive interrogations, it may also induce the establishment of institutions that would train agents to act accordingly, thus making infringements an even more readily available option.47 More generally, it is argued that due to its expressive effects, legitimizing an infringement in certain circumstances may be (wrongly) perceived as implicitly legitimizing it in other circumstances too.48 These “slippery slope” arguments suggest that even though legitimizing a (presumably justified) infringement in one set of circumstances does not logically legitimize it under different circumstances, the former is prone to bring about the latter due to political and psychological reasons.49 While the slippery slope argument cannot be ignored, it does not necessarily preclude predetermined guidelines for the permissibility of infringements. For one thing, the absence of ex ante authorization may result in people (including officials) refraining from infringing constraints when the net benefit of such infringements is large enough to override the constraint. Prior authorization may thus be necessary to encourage risk-averse agents, who are reluctant to “dirty their hands,” to nevertheless promote the overall good when such action involves a justified infringement of a constraint.50 Moreover, such authorization may be accompanied by measures that deter unjustified infringements. Accurately evaluating these and other considerations is difficult, yet at the very least they make the slippery slope argument inconclusive.51 47. See, e.g., Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb, 37 Case W. Res. J. Int’l L. 231, 238 (2006); Mordechai Kremnitzer, The Landau Commission Report: Was the Security Service Subordinated to the Law or the Law to the ‘Needs’ of the Security Service? 23 Isr. L. Rev. 216, 254–57 (1989). 48. For a discussion of theories of “expressive law and economics,” which accentuate the effect of “what the law says” (rather than of “what the law does”) on preferences and behavior, see, e.g., Richard H. McAdams, An Attitudinal Theory of Expressive Law, 79 Or. L. Rev. 339 (2000); Robert Cooter, Expressive Law and Economics, 27 J. Legal Stud. 585 (1998); Robert D. Cooter, Do Good Laws Make Good Citizens? An Economic Analysis of Internalized Norms, 86 Va. L. Rev. 1577 (2000). 49. Bernard Williams, Which Slopes are Slippery?, in Moral Dilemmas in Modern Medicine 127, 128 (Michael Lockwood ed., 1985); Eugene Volokh, Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026 (2003). 50. For the “dirty hands” argument, see, e.g., Michael Walzer, Political Action: The Problem of Dirty Hands, 2 Phil. & Pub. Aff. 160 (1973) (suggesting that moral public officials are the ones willing to get their hands dirty by choosing to violate a constraint to bring about a sufficiently high social good). 51. See, e.g., Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts 200–03 (2007). See also generally David Enoch, Once You Start addressing possible objections 121 The current objection may also rest on deontological concerns. According to this view, justifiably infringing a constraint to attain a desirable outcome is different from attaining the same outcome without infringing any constraint. Agents who act in accordance with ex ante authorization to infringe a constraint may lose sight of this fundamental moral distinction. Prior authorization may turn the actor’s decision-making process into a rather technical assessment of whether the conditions set forth by the legislature are met, without giving sufficient attention to the nature of the action as an infringement of a constraint and of the constraint’s underlying rationales.52 Relatedly, a law that expresses, even inadvertently, an improper message should arguably be invalidated even if its content and expected outcomes are desirable.53 The very formulation of rules that determine when it is permissible to kill or torture people is disrespectful of human dignity and thus, so the argument goes, incompatible with Kantian morality. Extreme emergencies may indeed compel one to do horrible things to prevent catastrophic outcomes. However, respect for people requires that such acts be performed, so to speak, by the force of the circumstances and should not be governed by predetermined principles. We have already discussed and rejected this argument.54 Even under extreme circumstances, agents should be guided by some moral principles, and the same is true of ex post judgment of the morality of their actions. Choosing between prior, legislative authorization of infringements and ex post assessment of their permissibility involves additional considerations. Thus, the democratic principle of citizens’ equal participation in delineating the circumstances under which infringements should be deemed permissible lends support to legislative ordering of this issue, following public deliberation.55 Legislative determination of the circumstances in which an Using Slippery Slope Arguments, You’re on a Very Slippery Slope, 21 Oxford J. Leg. Stud. 629 (2001). 52. Cf. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1512 (2000). 53. Id. at 1513. For a critique, see Steven D. Smith, Symposium: Expressivist Jurisprudence and the Depletion of Meaning, 60 Md. L. Rev. 506, 520 (2001). 54. See supra pp. 52–53. 55. See, e.g., Jeremy Waldron, Law and Disagreement 232–34, 244–49 (1999). See also Samuel Issacharoff & Richard H. Pildes, Emergency Contexts without Emergency Powers: The United States’ Constitutional Approach to Rights During Wartime, 2 Int’l J. Const. L. 296 (2004) (suggesting that where both legislature and executive endorse a particular tradeoff of liberty and security, the courts have accepted that judgment; but where the executive 122 law, economics, and morality infringement is justified also mitigates the concern of the institutional bias of law enforcement and security agencies, whose primary goal is to fight crime and terror.56 The choice between prior statutory authorization and subsequent judicial review further involves complex considerations of comparative institutional capacity.57 Finally, refraining from setting guidelines ex ante is unfair to actors who are exposed to the risk of bearing civil and criminal liability if it turns out that their judgment regarding the permissibility of the infringement is different from that of the ex post reviewer. We need not resolve these difficult questions here. We acknowledge that in choosing between the various alternatives of authorizing or justifying infringements—ex ante vs. ex post; legislative, administrative, or judicial; public vs. secret; explicit vs. implicit; general vs. specific, and so forth—one must carefully consider the expressive effect and the expected outcomes of each alternative. At the same time, we insist that whichever alternative is chosen, deontologically constrained CBA should be employed to determine the permissibility of the infringing act. Hence, even if the expressive concern militates against some of the above schemes in some contexts, it does not militate against our proposed analytical framework. • E. Conclusion Our suggestion to integrate deontological constraints with CBA is subject to much of the same critique leveled against moderate deontology, to many of the objections made against standard CBA, and to additional criticism aimed at the proposed integrative methodology. At the same time, deontologically constrained CBA overcomes at least some of the conspicuous has flown in the face of legislative policies or without legislative approval, the courts have invalidated executive action, even during wartime, or scrutinized it more closely). 56. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 545 (2004) (Souter, J., concurring). See also Thomas P. Crocker, Torture, with Apologies, 86 Texas L. Rev. 569, 585–93 (2008). 57. For a discussion of this issue in the context of the fight on terror, see, e.g., Posner & Vermeule, supra note 51, at 15; Posner, supra note 38, at 27; David Dyzenhaus, Are Legislatures Good at Morality? Or Better at it than the Courts?, 7 Int’l J. Const. L. 46 (2009). This issue is often discussed in the context of the role of the “proportionality” requirement in judicial review of legislation and administrative decisions. See, e.g., David Beatty, The Ultimate Rule of Law (2004); Mattias Kumm, Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement, in Law, Rights and Discourse: Themes from the Legal Philosophy of Robert Alexy 131 (George Pavlakos ed., 2007). addressing possible objections 123 normative deficiencies of standard CBA (discussed in chapter 1) and of the methodological shortcomings of moderate deontology (discussed in chapter 2). This chapter focused on objections that may be raised against the combination of moral constraints with CBA. We conclude that some of these objections (such as the claim that incorporating constraints into standard CBA would undermine its alleged normative neutrality, or that it would bring about undesirable commodification of moral values) rest on shaky foundations. Other objections are perhaps more powerful, but none of them is conclusive. These objections imply that deontologically constrained CBA is possibly more fruitful in some contexts than in others. Indeed, various considerations should affect the precise manner in which constrained CBA is employed, including the object of the analysis (legal rules, governmental policies, ex post judicial determination of the legality of actions, and so forth), its publicity, and the identity of the analysts. We reiterate that addressing deontological concerns as constraints on CBA is superior to either ignoring them or dealing with them separately as secondary considerations. Since “the proof of the pudding is in the eating,” the second part of this book applies the proposed analytical framework in various legal fields. This page intentionally left blank • part two Applications This page intentionally left blank . ”1 The other camp. For instance: What type of preemptive measures can a state legitimately take against persons before proving their culpability. N. It claims that there is no consensus on the content of these principles. Nov. at 63. 3. 2006. and reason so often tug in different directions. 127 . 2007. rests its arguments on “principles.Y. N. as “text. The attempts of potential terrorists to disguise themselves among innocent. . Jan. 16. to which legal economists usually belong. David Cole. 11. [and] the recognition that ‘pragmatic’ cost-benefit decisions will often appear in the short term to favor actions that may turn out in the long term to be contrary to our own best principles. .”2 Consequently. How to Skip the Constitution. rejects precisely this commitment to principles. the Constitution “represents a collective commitment to principles . tradition. as well as the substantial damage created by acts of terror.” According to this view. .”3 which are based exclusively on 1. “[r]ealism requires recognition that constitutional decision-making .• six The Fight Against Terrorism • A. . Richard Posner. administrative detentions. present policy-makers with tragic choices.Y. in a court of law? Is it legitimate to save lives by harming dangerous individuals through extrajudicial methods. is driven in the main by policy judgments. which mostly criticizes the United States’ reaction. Rev. Rev. or even their evil intentions. or aggressive interrogation techniques? Is it justified to inflict harm on innocent persons in an attempt to save others? The extensive literature evaluating the reaction of the democratic world to the terrible events of September 11. 2. 21. civilian population. 2001 largely reflects a division between two schools of thought. One camp. How to Skip the Constitution: An Exchange. Books. Id. at 20. precedent. Introduction the fight against terrorism poses significant moral and legal challenges to liberal democracies. Books. such as targeted killings. Section C presents the central deontological constraints pertinent to the fight against terrorism. in this respect. but .5 Compared to 4. Different elements of this definition are debated.4 We begin in section B by briefly characterizing and criticizing existing normative economic analyses of the fight against terrorism as reflecting a simplified ad-hoc balance of interests (or act-consequentialist) approach. 554. L. See. We do not discuss in this chapter the dilemma whether (justified) infringements should be authorized ex ante by legislation or should be subject to an absolute formal prohibition. 117–22. B. Blakesley. while government activities that override deontological constraints are to be evaluated only post factum. for the purpose of coercing or intimidating a specific group or government or otherwise gaining some perceived political or military benefit. Section F analyzes anti-terrorist measures that involve inflicting both intended and unintended harm. We focus on the constraint against actively/ intentionally inflicting harm. great bodily harm. 10 New Crim. Economic Analysis of the Fight Against Terrorism • Terrorism is conventionally defined as the use of violence causing death. respectively. and suggest that preempting an aggressor should be considered as a constraint infringement.128 law. Rev. Ruminations on Terrorism: Expiation and Exposition. demonstrating an integration of the two types of threshold functions. we address the debate as to whether an aggressor retains his right to life regardless of his actions or evil intentions. and morality estimating the costs and benefits associated with each government practice. Sections D and E discuss the threshold functions that should apply when determining the permissibility of inflicting intended and unintended harm. or serious psychological damage to innocent individuals with the intent to cause those harms or with wanton disregard for them. 5. at least in cases where the guilt of the harmed person has not been established by fair judicial proceedings. 580 (2007). This chapter questions the alleged dichotomy between principles on the one hand and cost-benefit analysis on the other. economics. We discuss the factors that should be considered in evaluating the act’s relevant net benefit and those determining the size of net benefit required to justify an infringement. supra pp. Additionally. See Christopher L. by demonstrating the plausibility and desirability of incorporating deontological constraints (“principles”) with economic analysis (“balancing”). Peter Gordon & James E.9 These aspects of the economic analysis of terror and the fight against it are important in evaluating existing security policies and in designing new ones.. Brock Blomberg. 20 J. Choice 147 (2006).. See. Walter Enders.g. Moore II. Econ. Jonathan Klick & Francesco Parisi. 7. A substantial portion of the economic analysis of terror is devoted to a positive. 2008). 193 (2006). Liberty.. .g. Surveys 1 (2007). Jeffrey Dunoff & Joel P. 463 (2004). S. Protecting Liberty in an Age of Terror (2005). 93 Am.g. Economic Conditions and Terrorism. 128 Pub. A Law and Economics Perspective on Terrorism. and the Data We Need. Posner. Pol. Kayyem.the fight against terrorism 129 other criminals. 2007). The Law and Economics of Humanitarian Law Violations in Internal Conflict. e. Heymann & Juliette N. Not a Suicide Pact: The Constitution in a Time of National Emergency (2006). 20 Eur. and the Courts (2007). 2006). Frey. Simon Luechinger & Alois Stutzer. Philip B. Bruno S. Int’l L. e. Richard A. Econ. Asaf Zussman & Noam Zussman. Economic Development. Persp. Additional distinctive features of terrorism are its typically organized form and the extensive indirect adverse effects of the threat of terror. 301 (2004).. The Economic Costs and Consequences of Terrorism (2007). Calculating Tragedy: Assessing the Costs of Terrorism. on the branch of economic analysis that aims to provide normative evaluation of such policies. in Terrorism. Richardson. The Economic Consequences of Terror. Gregory D. J. Two notable contributions to this branch of inquiry are Richard Posner’s Not a Suicide Pact: The Constitution in a Time of National Emergency. Hess & Akila Weerapana. An Economic Perspective on Transnational Terrorism. Trachtman. and Political Openness 233 (Phillip Keefer & Norman Loayza eds. Pol.7 politicaleconomy assessments of the characteristics and sources of terrorism.10 nothing in the discussion that follows hinges on the legal classification of a certain act as “terrorism. Posner & Adrian Vermeule. Terror in the Balance: Security. Pol.. 21 J. J.8 and empirical studies of the adverse economic effects of terror. 8. however. Econ. terrorists are often willing to sacrifice their lives for their cause. and the Courts.. Econ.g. Fernanda Llussá & José Tavares. Economics and Terrorism: What We Know. For a review of the extensive literature in this area. Econ. 20 Eur. Liberty. Our focus is.. 9. Todd Sandler & Walter Enders. Eric A.” 6. J. rather than normative. See. e. 10. in 2 Handbook of Defense Economics 815 (Todd Sandler & Keith Hartley eds. What We Should Know. Assassinations: Evaluating the Effectiveness of an Israeli Counterterrorism Policy Using Stock Market Data. J. 394 (1999). The Economic Analysis of Terrorism (Tilman Brück ed. Nuno Garoupa. 20(2) Eur. and Eric Posner and Adrian Vermeule’s Terror in the Balance: Security. e.6 Such positive analyses include theoretical and econometric evaluations of the efficacy of the use of various anti-terror policies. which significantly diminishes the deterrence effect of legal sanctions on terrorism. Terrorism: An Empirical Approach. See. Harry W. see. 291–515 (2004) (special issue). inquiry of these distinctive characteristics of terrorism. 943 (1987). e.. balancing takes on the first meaning. for example. not unique to the economic approach. and morality The normative economic analysis of the fight against terrorism advocates an ad-hoc balance of interests approach.17 but also in that it balances the relevant interests.130 law.”14 The concept of “balancing” is. rather than a so-called “definitional” one. Infallibility Under Law: Constitutional Balancing. supra note 10. A different form of balancing is used when each interest survives and is given its due consideration. For example. of course. at 5. construed. rather than competing constitutional principles or values. It opposes the counterintuitive claims of absolutist deontology11 and holds that the use of a security measure is justified whenever its expected social benefits exceed its costs.g. Posner & Vermeule. For a critical overview.03 (1984). One is to ask whether a particular security measure harms liberty more or less than it promotes safety.”12 This approach rejects the notion of civil liberties as constraints on consequentialist balancing. L.16 Another singular aspect is the use of ad-hoc balancing. It claims that “security and liberty trade off against one another. As succinctly stated by Richard Posner. Posner. and do.”13 and thus “governments should. at 24. . 96 Yale L. 13. Note that the balancing metaphor takes two distinct forms. supra note 10. Nimmer. at 946. as a conflict between an individual right and state need. In the present context. 78 Colum. 14. CBA weighs competing interests in monetary terms. 15. balance civil liberties and security at all times. See supra pp.J. Melville B. Rev. supra note 15. Id. 17. Alexander Aleinikoff. Constitutional Law in the Age of Balancing. This is the meaning that Nimmer gives to the distinction between ad-hoc and definitional balancing. For one thing. when the United States Supreme Court used the terminology of balancing in analyzing the legitimacy of detaining suspected terrorists in the 11. reflecting people’s preferences. at 32. One form of balancing is the process of placing the competing interests on a set of scales and ruling the way the scales tip (such that one interest outweighs another). at 40–42. Id. Nimmer on Freedom of Speech 2. Aleinikoff. 14–18. See also Louis Henkin. 1022. see. the process of balancing advocated by the economic approach is distinctive in several respects.02–. “one is not to ask whether liberty is more or less important than safety. Courts frequently employ balancing tests when there are two or more competing interests. 1027–28 (1978). economics. T.15 However. Id. 12. 16. The balancing endorsed by standard economic analysis is ad-hoc not only in the sense that it prefers a case-by-case inquiry to a global one. at 948. it referred to “[s]triking the proper constitutional balance” between the security needs and “the values that this country holds dear . 22. one may apply what they term a “non-welfarist” balancing. Posner. they do not adopt such an approach. is that “civil libertarian panic about the specter of authoritarianism” will hinder 18. as far as the constraints are based on second-order institutional and empirical concerns (ruleconsequentialism). Posner and Vermeule. at 40. The economic analysis of the fight against terrorism thus does not consider the mere infringement of a basic liberty or some other fundamental principle as a social cost in the constitutional calculus. rather than abstract values and principles. the content of a concept such as liberty is nothing but the outcome of the balancing process. . as it is determined exclusively by the scope of society’s existing needs: “[it] is the point of balance [that] determines the optimal scope of the right. See supra pp. First. 23.”23 The real danger. in which “the effects of actions on rights are themselves among the consequences to be evaluated.S. 542 U. Posner and Vermeule concede that in principle. supra note 10. oppose setting any deontological constraint that would limit states in taking security measures in the fight against terrorism. In this sense. economic analysts take into account only the concrete individual interests that are at stake. they argue that these concerns are highly exaggerated and unsubstantiated. at 31. . Id. Posner & Vermeule. 20. they are actconsequentialists. as well as Richard Posner.22 In fact.”19 Treating right infringements as a cost does not transcend consequentialism. supra note 10.”21 Liberty is not perceived as a normative concept but rather as a descriptive one. supra note 10.”18 In contrast. notwithstanding the rhetoric of comparing liberty and security. at 190. What counts is only the policy’s adverse effect on the welfare of individuals. 19. Under this view. so they argue. they suggest that the main concern is that deontological constraints might “block government’s attempts to adjust the balance as threats wax and wane. 532 (2004) (plurality opinion).20 At any rate. 187–93. 21. See also id. at 31. for two reasons.the fight against terrorism 131 case of Hamdi v. [such as the] commitment to due process. . 30–32. yet the adoption of such a more sophisticated theory of the good may somewhat narrow the gap between consequentialism and deontology. Posner & Vermeule. Rumsfeld (2004). at 40–41. 507. since setting the threshold comes at the price of “reduced theoretical coherence and an arbitrary flavor. Posner. at 40. a government may kill A to save B. at 187–88 (“Standardly. On the doing/allowing distinction.29 As a result. Kaplow & Shavell. 28. Crocker. 27. . e. In accordance with standard act-consequentialism. economics. at 26. Rev. Torture. See Thomas P. infra pp. .28 Standard CBA also rejects the distinction between saving or harming unidentified (“statistical”) people and saving or harming identified ones. Omissions. For a discussion of this distinction see supra p.”). L. 60–69. . . at 331–36. 26. 41–43. Louis Kaplow & Steven Shavell. Hence. See also id. 703 (2005). 41.132 law. Posner & Vermeule. at 25. human rights and liberty are placed on both sides of the scale.g. .”27 Consequently. supra note 26. L. not merely a thousand B’s. it is not necessary to show that it would generate sufficiently high social benefits to override a deontological constraint. See. Posner & Vermeule. Id.24 Thus. including those recognized as constitutional principles. supra note 15. see generally supra pp. the permissible ratio is one to one: where relevant restrictions are met. this approach is inapplicable. and Life-Life Tradeoffs. as they reflect each decision-maker’s moral and religious values and personal life experience. Karima Bennoune. . Terror/Torture. they not only reject the view of rights as trumps but also reject the position that one should “place a thumb on the scale” to assure that the balance struck in any particular situation properly reflects the central position of the relevant liberty in the constitutional scheme. . Sunstein & Adrian Vermeule. 168–69. supra note 10. supra note 10. If anything. . at 191. . [It] is quite mysterious .. 569. Is Capital Punishment Morally Required? Acts. Cass R. why the sheer catastrophic size of the threatened harm should matter. 58 Stan. are indeterminate and subjective. Oddly. 26 Berkeley J. supra note 10.26 Posner and Vermeule suggest that even though incorporating deontological constraints and setting thresholds can in principle be justified on the basis of first-order moral considerations. they place the thumb on the side of security. 1 (2008). with Apologies. It suffices that the benefit exceeds the cost of the policy’s direct adverse effects. . 579 (2008). thereby offsetting the status of basic liberties in the process of balancing. at 981–82. to justify a security measure. Cf. and morality cost-justified security measures. it equates the active infliction of harm by security measures with not preventing a comparable harm to the potential victims of terrorist activities. the catastrophe exception builds in an arbitrary threshold . See also id. according to standard economic analysis. 24.25 Second. of Int’l L. . 91. 29. 86 Tex. Rev. the economic analysis disregards the doing/allowing distinction. Fairness Versus Welfare 45–47 (2002). at 39. 25. Aleinikoff. Posner argues that deontological constraints. the state always operates at a “Pareto frontier” with regard to the balance of security and liberty.34 Posner and Vermeule even question the desirability of the international laws of war. only a small percentage of people are willing to commit. at 15. entails a decrease in liberty. 34. Not surprisingly. supra note 10. Posner. supra note 10.30 It follows—without even having to conduct a detailed CBA—that infringements of deontological constraints are a necessary and justified corollary of the fight against terrorism.31 This position rests on the concern that judges have limited institutional capacity and knowledge needed to evaluate security policies. referring to some baseline of normalcy. the government may take measures to curtail the freedom of speech of radical imams. supra note 10. 31. Id. supra note 10. and since a few terrorists may cause catastrophic harms. at 53–71.” Any increase in the demand for security.32 Once one assumes that designing anti-terrorist policies entails no principled normative deliberation but merely an aggregation of costs and benefits. and hence there is a perfect trade-off between “liberty” and “security. He nevertheless argues that since there are millions of Muslims in the United States. 32. 33. supra note 28. even if the probability that these persons would have been involved in terror is marginal. Sunstein & Vermeule. According to this notion. Posner. CBA allows legal economists to argue that judges should defer to decisions of the executive branch. and that judicial review of governmental action should be relaxed or even suspended in times of emergency. at 26–27. Judging under Uncertainty: An Institutional Theory of Legal Interpretation 230 (2006). warrantless domestic wiretapping. governmental agencies seem better qualified than courts to perform the task of evaluating security policies. Richard Posner concedes that even in radical Islamist communities. See Adrian Vermeule. See also Posner. and coercive interrogations. It endorses policies such as indefinite detentions. or even abet. 80. terrorist acts.33 It justifies restrictive measures against persons whenever the expected benefit of those measures exceeds their costs. For example. . Posner & Vermeule. resulting from the threat of terror.the fight against terrorism 133 Legal economists further propose to replace an actual. detailed balance of interests with a hypothetical one. at 27. They contend that “if the laws of 30. at 124. standard normative economic analysis of the fight against terrorism legitimizes a rather broad range of measures. such as the resources allocated to tackle the security threat. 36. 60–70. bad on the balance.36 Furthermore. and are willing to assume that “some laws of war” are optimal (id. David Cole. the claim that there is a perfect trade-off between “liberty” and “security” treats the curtailment of liberty as a mere shorthand for reduction in people’s welfare. 1329. supra note 25. they avoid deciding whether the laws of war are. 35. then two fundamental modifications of the balancing process are needed. to justify the infringement of constraints. 7 Theoretical Inq. Once liberty is conceived as entailing a deontological constraint on actively/intentionally taking peoples’ lives or harming their bodily integrity and dignity. and Constitutional Constraint. 297 (2003). at 263). These assumptions are implausible. 97 (2006). In their book. . Emergency Power. Posner & Vermeule. 70 U. supra note 10.134 law. economics. First. The claim that a state’s failure to effectively eliminate threats of terrorism is morally equivalent to actively/intentionally harming people disregards the doing/allowing and intending/foreseeing distinctions and fails to distinguish between deontological options and deontological constraints. L. the expected good outcomes (or the avoided bad ones) must meet a relatively high threshold. 11 J.37 More fundamentally.38 The following discussion describes the central characteristics of such a modified balance between liberty and security. at 262. 37. Second. 38. the claim that the risk of terror necessarily justifies losses in liberty is unfounded. It assumes not only that at the baseline the state operates at a Pareto frontier with regard to the balance of security and liberty. L. Crocker. See supra pp. Jeremy Waldron. See also Eric Posner. 41–48. 1335–42 (2008). Phil. at 576–77. Chi. we find both the consequentialist underpinnings of standard normative economic analysis of the fight against terrorism and much of its implications unacceptable. indeed. Dan Belz. 199 (2003). it should advocate the abolition of all laws of war. Pol. L. Chi. Rev. The alleged trade-off rests on questionable empirical assumptions. Security and Liberty: The Image of Balance. A Theory of the Laws of War.”35 For the reasons elaborated in the first part of this book. Rev. but also that all background factors. do not change in the move from normalcy to emergency. 191. Is International Humanitarian Law Lapsing into Irrelevance in the War on International Terror?. and morality war are intrinsically bad. the United States should not only violate those that interfere with the war on terrorism. No Reason to Believe: Radical Skepticism. 75 U. only certain types of benefits and costs may legitimately be taken into account in this context. one must find out the aim of dropping bombs on the plant. To illustrate. when the adverse outcome does not provide the actor with a reason for his behavior or an explanation for it. and as a result.P. 31–34 (2006). Morality and Consequences. McMurrin ed. See supra pp. 7 Theoretical Inq. This example is a variation of the one proposed by Jonathan Bennett. The Constraint Against Harming Persons and the Fight Against Terrorism • 1. A harm is intended even if the actor has no interest in imposing the harm except as a means to achieve some end. and the related distinction between harming a person as a side effect of attaining a legitimate result and using a person as a means to aiding or saving others. However. Is the killing of the civilians intended? To answer this question. another possibility 39. Simester. 41–48. 95 (Sterling M. One possibility is that the bombing was aimed at destroying the plant itself. including the constraints against deception and breaking promises. injuring them.. the harm to these persons is intended. irrespective of the government’s lack of a direct interest in harming those persons. General Considerations Anti-terrorist activities may entail infringements of any conceivable deontological constraint. and harming their human dignity. Iraq and the Use of Force: Do the Side-Effects Justify the Means?. in 2 The Tanner Lectures on human Rights 45. 1980).39 Consider the following scenario:40 A state bombs a terrorists’ munitions plant. kills civilians living nearby. those against actively/intentionally killing people. They also include the distinction between intending harm (which may be immoral even if the harm is merely allowed) and foreseeing harm (which is not necessarily immoral). Harm is unintended only when it is a mere side effect. if the government puts pressure on a terrorist by harming innocent persons who are dear to him. that is. L. such activities primarily infringe the most basic deontological constraints.the fight against terrorism 135 C. Identifying the pertinent constraints and setting thresholds for the permissibility of their infringement rest on the ordinary deontological distinctions. 40. See also Robert Cryer & A. curtailing their freedom of movement and speech. These include the distinction between doing harm and merely allowing it. 60–70. . 9. damaging the terrorists’ capacity to build their own weapons in order to prevent future terrorist attacks. On oblique intention. it is essential to take into account the person’s relevant moral responsibility. Torture. yet the threshold that must be met to render the infringement permissible is different. at least in a context closely related to his blame. in evaluating the legitimacy of inflicting harm on a person. 634 (2007). the state is intentionally harming civilians as a means to its end. Imposing harm on a blameworthy person. 42. 10 New Crim. Rev. 15. in both cases the state infringes a constraint. Under the first possibility. Direct and Oblique Intention in the Criminal Law (2002). Victims have an interest not only in their fate but also in their status. .html. in what can permissibly be done to them. is less morally objectionable than imposing the same harm on an innocent person. Adil Ahmed Haque. as intended harm reflects disrespect to human dignity.41 2. L. Importantly. available at http://www. as harming the blameworthy is likely to deter future undesirable conduct. Terror. However. economics. it is perfectly legitimate to shoot down the plane.136 law. see generally Itzhak Kugler. 1 BvR 375/05. and morality is that the aim was to terrorize the civilian population supporting the terrorists in order to break their morale and force them to surrender. 613. that is. cases in which the actor does not intend harm but is practically certain that her action will bring it about. deontology plausibly ascribes intrinsic value to one’s fault. The threshold is much higher in the second case. when scrutinizing the constitutionality of a statute authorizing the shooting down of an aircraft intended to be wielded as a lethal weapon. Judgment of the Bundesverfassungsgericht [BVerfG] [German Federal Constitutional Court] Feb. the killing of civilians is a mere side effect. from the perspective of moderate deontology. Harming Aggressors as a Constraint Infringement According to most deontological approaches. and the Inversion of Moral Principle. The German Constitutional Court referred to this issue in passim. Under the second.42 The court decided that authorizing the military to shoot down a plane with innocent people on board is unconstitutional. BVerfGE. While consequentialism considers one’s fault only instrumentally. as it infringes their right to dignity (even if these people are doomed to die anyway). 2006.bundesverfassungsgericht. The court reasoned that preempting the attackers does not 41.de/entscheidungen/rs20060215_1bvr035705. the court held that if only terrorists are on board the aircraft. or to a civilian taking a direct part in the hostilities at such time as the harm is caused. if one endorses other rationales for criminal sanctions. 44. available at http://elyon1. The Metaphysics of Morals 6:331 (Mary Gregor trans. the imposition of criminal sanctions on a person convicted in criminal proceedings. the fact that imposing the sanctions is justified does not imply that it does not infringe the constraint against actively/intentionally inflicting harm. e.g.pdf. Thomas E. Press.a34. a civilian taking part in hostilities is endangering his life. § 46 (2005). Hill. 103 Nw. such as private and general deterrence. However. 1996) (1797). 409 (1999). See. Cambridge Univ. and he might—like a combatant—be the objective of a fatal attack. 45.. The court ruled that “[fulfilling the rule] of proportionality is not required regarding harm to a combatant. Goodin eds..g. since it is still required to show that the harm is justifiable in terms of the relevant theory of retribution. That killing is permitted. . David Luban. [P]roportionality is required [only] in any case in which an innocent civilian is harmed. Immanuel Kant. Kant on Wrongdoing.43 A moderate deontologist would agree that the blame of the individual harmed by the state is morally relevant in evaluating the act’s permissibility. first. Executing Retributivism. The difficulties in characterizing the infliction of harm on the guilty as a non-infringement are significantly greater when—as is typically the case in the context of the fight against terrorism—no judicial determination of the person’s guilt precedes the harm. retribution is not the only possible rationale for imposing criminal sanctions.il/files_ eng/02/690/007/A34/02007690. . Consider. Desert and Punishment. §§ 138–39. contrary to the German court’s ruling. Unthinking the Ticking Bomb..” HCJ 769/02 Public Comm..gov. 18 Law & Phil. Government of Israel.46 Moreover. See id. See also. e. U. 46. The Israeli Supreme Court expressed a similar view in addressing the legitimacy of “targeted killings” of terrorists. 407.g. 1063 (2009). . See. L. Even if retributive criminal sanctions do 43. Even if retribution obliges the state to impose the sanction.court. One’s wrongful actions thus do not negate all of one’s rights and do not necessarily justify infringing the constraint against torturing or killing a convict. Dan Markel. Indeed. 2009). e. Beitz & Robert E. & ed..44 retribution can only justify some types of sanctions—those that are deemed “appropriate” to the severity of the person’s moral blame. or incapacitation. it is doubtful that inflicting harm on the guilty does not infringe a deontological constraint.45 A person’s guilt is not sufficient to establish the claim that sanctioning him does not infringe a moral constraint. Rev. against Torture in Israel v. in Global Basic Rights 181 (Charles R. Certainly.the fight against terrorism 137 infringe the moral requirement to respect their dignity because they forfeited their rights by their willful conduct. . Aff.50 Moreover.. & Pub. 47. The Right to Life. 48. attribution of guilt in the absence of judicial proceedings. The presumption that the aggressor actually chooses to forfeit his right to life is hard to sustain. Killing in Self-Defence 62 (2006). Two Treatises of Government 279 (Peter Laslett ed. Self-Defense. To the extent that the aggressor’s forfeiture of the right to life rests on his culpability or malice (and not merely on the threat he imposes). and morality not infringe a constraint. Rev. 64 Cal. John Locke famously argued that an aggressor forfeits his right to life. and possibly biased. Boaz Sangero. economics. George P. Fletcher. regarding the lack of fair judicial proceedings for establishing one’s guilt. even if a would-be suicide-bomber intends to sacrifice his life in order to kill others. the aggressor “expose[s] his Life to the other’s Power to be taken away by him”). several contemporary scholars endorse the so-called “forfeiture argument”: it is permissible to kill in self-defense. 49.48 Following this view. .47 We then come to the difficult case of inflicting harm with the aim of preempting an aggressor. Respect for Life and Regard for Rights in the Criminal Law. in our view. convincing criticism. 283. 1382–83 (1979). Cambridge Univ. one can assume that the would-be suicide-bomber does not possess a right to life.49 This position is subject to extensive and. Press 1988) (1690) (arguing that by his own actions.138 law. but also a normative judgment about fairness. Kadish. Suzanne Uniacke. immediate threat to others. 20 Phil. this presumption is incompatible with the notion that the right to life is inalienable. Rev. Judith Jarvis Thomson.51 Thus. John Locke. the argument fails to justify the right to self-defense against an innocent attacker. 883 (1976). 51. Fiona Leverick. A person can justifiably be subject to harm based on retribution only if his blame was determined in a way that meets the requirements of procedural justice. 302 (1991). L. Permissible Killing: The Self-Defence Justification of Homicide 213 (1994). 1371. 13 Ga. it does not follow that when determining what measures are legitimate to preempt the attack. Self-Defence in Criminal Law 44 (2006). It is also subject to the difficulties discussed before. 141. L. The requirement that retributive sanctions would follow a judicial finding of criminal liability reflects not only the concern of a wrong. 50. Sanford H. it does not follow that the same is true of measures taken against suspected terrorists outside the criminal justice system. See also infra p. 871. for a person possesses the right to life only so long as he does not pose an unjust. See.54 This is not to say that the harmed-person’s guilt is irrelevant. It acknowledges that the aggression itself is insufficient to render the killing of the aggressor a noninfringement. supra note 49. 276.53 This response. The German court’s obiter dictum—that shooting down a plane when only the terrorists are on board would not infringe a moral constraint—is therefore unsupported. e. 54. the forfeiture argument does not quite explain the limitations imposed on the right to self-defense. For a related discussion regarding the nature of lying to a person who illegitimately threatens to kill an innocent person. Killing in Self-Defense: A Questionable or Problematic Defense?.g. . is tantamount to arguing that a person has no right not to be subject to a justified infringement. 53. 93 Ethics 508 (1983). at 213 (“[The aggressor does] not have a right against [the victim] that [the victim] not use necessary and proportionate defensive force”). Cheyney C. Pacifism. at 66. such as the requirement that the preemption is necessary and that the harm inflicted on the aggressor is proportionate to the harm that the aggressor aims to inflict.the fight against terrorism 139 Most important for our purposes. Tziporah Kasachkoff. Uniacke. a person’s moral responsibility for creating the circumstances that call for infringing the constraint should plausibly affect the threshold function used to determine the permissibility of the infringement. 55. The following sections discuss the key choices that one must make in constructing such functions. Supporters of the forfeiture argument respond that the aggressor forfeits his right to life only at the point at which killing him is necessary and proportional. any infliction of harm infringes a constraint and can only be justified if enough good (or bad) outcomes are at stake. Self-Defense. 160.. one should assess their permissibility through threshold functions. why impose these limitations?52 It is also unclear what types of constraints or rights the aggressor forfeits as a result of his aggression. At least in cases where the guilt of the harmed person has not been established through fair judicial proceedings. it seems that an aggressor retains his right to life regardless of his evil actions or intentions. 284. 17 Law & Phil. 52. however. Ryan. As we argue. see infra pp. In sum. 517 (1998). Leverick. See infra p. supra note 49. and the Possibility of Killing. See also infra pp.55 Since the measures that democracies employ in their fight against terrorism often infringe the deontological constraint against actively/intentionally harming people. 171–74. 509. If the aggressor has no right to life. We argue that preemption is the soundest justification for overriding the constraint against harming people. economics. Deterrence. Preemptive measures are acts that aim at directly thwarting terror attacks of would-be terrorists. In contrast. We suggest that even if deterrence may sometimes justify anti-terrorist . Goals of Anti-Terrorist Measures: Preemption. either by capturing them and holding them in detention or by killing or physically disabling them. and no adverse side effect is expected (this assumption is relaxed in section F). discussed in section E.140 law. Retribution. it is debated whether the attainment of any of the other goals can justify an active/intentional infliction of harm by the state. discussed in this section. The last subsection then extends the discussion by applying the same considerations to a different practice. namely the use of force in interrogations. and Pressure Anti-terrorist measures have four central goals: preemption. We distinguish between the threshold function applying to cases of intended harm. Constrained Economic Analysis of Intended Harm • 1. Throughout the analysis. We then move to present the basic elements of the threshold function. we demonstrate a constrained economic analysis of common activities in the fight against terrorism. and the one applying to harms inflicted as a mere side effect. 2. This goal is the central basis of permissible infringements and is therefore the focus of our analysis. for simplicity’s sake. retribution. we assume. that the action under consideration would harm only the suspected terrorists. and morality D. and pressure. These include the types of benefits and costs that one should take into account in calculating the act’s net benefit and the factors that determine the size of the threshold. deterrence. General Evaluating the permissibility of counterterrorist measures that infringe the deontological constraint against actively/intentionally harming persons requires the construction of a threshold function. We use the antiterrorist practice of targeted killing of suspected terrorists as a paradigm and only briefly address other measures. In what follows. We begin by distinguishing between different possible goals of anti-terrorist measures and explaining their importance in assessing the action’s permissibility. of persons who committed unusually horrible terror attacks. rational procedures for its use of targeted killing. whose blame is certain.58 We shall proceed on the assumption that retribution cannot justify the relevant constraint infringements in the fight against terrorism. 201 (1989).g. at 6:331. George P. and the Moral Point of View: Limits of Economic Interpretations of Law. retribution is a legitimate aim of intentionally inflicting harm.the fight against terrorism 141 measures. Efficiency. inflicting harm that is aimed at retribution can be justified. Practices. Due Process and Targeted Killing of Terrorists (working paper. Murphy. 2007).56 Therefore. 58. e. available at http://ssrn. supra note 44. torture of suspects. and administrative detentions are commonly perceived as preemptive and forward-looking. Inflicting harm to generate general deterrence is incompatible with the Kantian imperative because it uses the targeted person as a means rather than as an end. 8 Law & Phil. Retribution As previously discussed.59 Deterrence The infliction of harm to achieve deterrence is contested. Retributive punishment presupposes guilt and must be proportional to the degree of the wrongdoer’s guilt.60 At the 56. provided that the sanction is determined and executed through the criminal justice system. and bringing them to justice is impossible. Fletcher. 16 (2005). One may argue.” rather than as backward-looking retribution based on desert. Punishment and Self-Defense. Some argue that even in such cases a state has a due-process obligation to develop fair.. 57. 60. however.57 They are conventionally justified as measures of “selfdefense. 90–91 (Mark White ed. 59. the legitimate aims of actions such as targeted killings. Just Cause for War. The determination of guilt and the apportionment of punishment generally require reliable procedures. 84 (Larry May ed. 19 Ethics & Int’l Aff. These constitutive elements are typically lacking in a military or administrative action conducted as part of the fight against terrorism. such as a fair trial and impartial judges. the net benefit of measures taken for this goal would have to meet a higher threshold to be justified. that in exceptional cases. com/abstract=1349357. 1. following a judicial finding that the relevant person is criminally liable for his activities. Kant. Fletcher. See.. 2009). Mark Tunick. See also Jeff McMahan. 77–79. Aggression and Punishment. in War: Philosophical Perspectives 67. in Theoretical Foundations of Law and Economics 77.. . John Radsan & Richard W. A Crime of Self-Defense: Bernhard Goetz and the Law on Trial 18–38 (1988). Jeff McMahan. 2009). George P. This is also true in pursuing war. see Thomas Hurka. The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 145–63 (2002).g. the policy of demolishing houses of suicide bombers. the threshold of net benefit that has to be met to render such an action permissible should be higher than the one applicable to an infringement aimed at preempting the targeted person. Liability and Just Cause. and morality same time. To illustrate.142 law. Rts. summarized in English in 23 Isr. The Israeli Supreme Court has forbidden using house demolitions as a means of punishment since it is not executed through normal channels of the criminal justice system and since it inflicts harm on innocents as well. motivation is retribution. Hum. § 10. as it requires evaluating counterfactual scenarios and controlling for other potentially relevant factors. Int’l L.62 However. David Kretzmer. Minister of Defense (2009). 64. Absent a state reaction.64 Without trying to resolve this debate. A moderate 61. HCJ 3363/03 Baqer v. Brian Farrell. assume that killing a terrorist deters other would-be terrorists and thus saves the lives of.. say. as the terrorist is responsible. though concealed. See. the “successful” execution of one terrorist attack is likely to encourage others to commit similar attacks. However. It is also impractical to evaluate the marginal contribution of each instance of inflicting harm to achieving a certain level of deterrence and thus to determine the necessity of each infringement. it is impossible to scrutinize the claim that an action is efficient in achieving deterrence. we suggest that even if deterrence can justify a constraint infringement. IDF Commander in Gaza. Israeli Demolition of Palestinian Houses as a Punitive Measure: Application of International Law to Regulation 119. For a broader justification of inflicting harm for the purpose of deterrence. 63. IDF Commander in the West Bank (2003). 199 (2007). at 16–17.. supra note 60. targeting the terrorist does not rest merely on deterrence.g. the fight against terrorism may require dynamic military tactics to affect terrorists’ motivation and willingness to fight. See. to some degree. e. for the increased risk of further wrongful actions by others. for example. Y. e. . the result is arguably a judicial endorsement of a policy whose actual. McMahan. HCJ 124/09 Dawayat v. 21 Ethics & Int’l Aff. 28 Brooklyn J. the court has not voided this measure inasmuch as the government uses it for deterrence purposes. 871 (2002). 44(1) PD 536 (1989). 330 (1993).61 Legitimizing deterrence also raises second-order concerns. economics. 62. More often than not.B. HCJ 1005/89 Aga v. Take. eighteen would-be victims. Hence. due to the difficulties in verifying the efficacy of this policy.63 This distinction requires the state to show that the policy is effective in discouraging would-be terrorists. Assuming claim (2) is correct. by holding that considerations of deterring others are insufficient for making an order of assigned residence. HCJ 7051/02 Ajuri v. as explained in the text. Otherwise. Sunstein & Vermeule argue that since (1) threshold deontologists would agree that an otherwise wrongful killing would be permissible to save eighteen lives. in order to deter other people from committing terrorist activities. or to provide information. at least as far as intentional harming of innocent persons is concerned. however. each killing will have an expected value that meets the threshold. as the median falls below the threshold. to base the decision on the average impact of targeted killings. than the one that has to be met to legitimize such killing (or torture) to preempt the same person from inflicting harm.htm. that it is ever justified to kill a person who does not impose a threat to the lives of others in order to deter other persons from killing. may be an effective method to force terrorists to call off a terror attack. If the statistical mean exceeds the threshold but the median falls below it. Sunstein & Vermeule. An English translation is available at http://elyon1. See Haque.65 At the very least. one cannot conclude that each killing deters terrorist attacks which would kill eighteen people.court. 56(6) PD 352 (2002).66 Moreover. the problem is that claim (1) pulls together different types of goals. and since (2) there are studies indicating that capital punishment prevents eighteen times more killings than are committed through executions. it follows that (3) capital punishment is justified. supra note 28. exposing a person to the risk of harm.the fight against terrorism 143 deontologist may accept that under certain circumstances. assuming arguendo that deterrence is a legitimate aim.67 Pressure Inflicting intended harm. one must also have reliable information regarding the linearity of the deterrence function. § 27.gov. or even threatening to do so. to surrender. It is impractical to measure the deterring effect of a single action. 66. IDF Commander in West Bank. supra note 41. The Israeli Supreme Court applied this rationale in determining the authority of an occupying power to assign the place of residence of an individual. an otherwise wrongful killing of a person is permissible to preempt this person from intentionally killing eighteen others. at 642–43. it seems inevitable to base our judgment about the permissibility of an infringement on data regarding the efficacy of the general practice in deterring potential terrorists. a15. at 740–41. It does not follow. . it is generally 65. but most killings will not be justified. However. 67. However. a moderate deontologist will plausibly set a much higher threshold for legitimizing the killing of a person (or torturing him).il/files_eng/02/150/070/A15/02070150. e. the International Court of Justice did not classify this prohibition as absolute.htm. before 68. in which its very survival would be at stake. See. English trans.gov.a09. Responding to the Challenge 177 (2002) (suggesting the destruction of all the houses in the village from which a terrorist originated). 39(2) Isr.a32.”). economics. and morality accepted that such tactics are prohibited. 54(1) PD 721 (2000). Eyal Benvenisti..”69 In the same vein. However.court. § 97 (the court declared that it could not “reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence. CrimFH 7048/97 John Does v. and in our view unfounded view. Missing in Legal Action: Lebanese Hostages in Israel. 69. available at http://elyon1. for the purpose of relaying an ‘early warning’ .71 A fortiori. 1949. Thus. .g. 70. Protocol Additional to the Geneva Conventions of 12 August 1949. These are clearly cases where a person is used as a means for achieving an end.J. in considering the legitimacy of the threat or use of nuclear weapons.. HCJ 3799/02 Adalah v.htm. 1996 I.73 Preemption thus seems to be the soundest justification for overriding the constraint against actively/intentionally harming people.il/files_eng/02/990/037/A32/02037990. IDF 60(3) PD 67. 8 June 1977. with the intent of forcing the terrorists to surrender.gov. For a different. See Article 28 of IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War. 72. . Siege is a legitimate means of warfare if it serves a specific military objective but not if it aims at starving a civilian population in order to force the enemy to surrender.court. The Israeli Supreme Court absolutely prohibited even “the solicitation of a local resident’s assistance. Article 54(1). Ministry of Defence.72 Interestingly. Orna Ben-Naftali & Sean S. GOC Central Command. and relating to the Protection of Victims of International Armed Conflicts (First Protocol). it is prohibited to carry out so-called “strategic” or carpet bombing campaigns that result in mass killings of civilians. 80 (2005). 102 (2006). when that resident gives his consent and when performance of the role will cause him no damage. In both cases.”70 Another measure that is sometimes used for pressure purposes is siege. 185 (2000).C. 81. Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. available at http://elyon1. L. English trans.il/files_ eng/97/480/070/a09/97070480. 71. Why Terrorism Works: Understanding the Threat. Rev. 41 Harv. an army must neither use enemy civilians as “human shields”68 nor take hostages as “bargain chips. see Alan Dershowitz. Advisory Opinion. as it serves as a means to the army’s ends. risking the lives of civilians is intended. . Human Dignity in Combat: The Duty to Spare Enemy Civilians. Gleichgevitch. the army must not force a local resident to convey a warning message to a wanted person in a place besieged by the army. Int’l L. though. 73.J.144 law. Rev. The variables are the factors that represent the act’s net benefit. L. which determines the minimal level of net benefit that is required to justify infringement. the function generally consists of four main variables: (1) The probability that the targeted person(s) will succeed in executing an act of terror unless thwarted ( p) (2) The harm the terror attack is expected to inflict (x) (3) The probability that the preemptive measure will result in killing the targeted person(s). Punitive measures ordinarily serve both backward. Uniacke. supra note 56. at 92–155. See also supra pp. . Basic Elements of the Threshold Function Recall that T is a threshold function. In constructing the threshold function. one should note that it is often difficult to determine the actual purpose of a specific anti-terrorist measure. McMahan. e. which is the product of the probability that the targeted person would have executed the terror attack unless 74. and deterring. Death. See. at 78–82. and Double Effect. in most cases it is possible to determine what the action’s dominant subjective and objective purpose is76 and to set the appropriate threshold function accordingly.74 Another difficulty arises when an anti-terrorist measure is taken for more than one purpose. 3. 63–70. one should define its variables and parameters. Seana Valentine Shiffrin..g. Speech.Y. 1135 (2003). preventive. The central parameter is the threshold level K. We already mentioned the difficulty in ascertaining the decision-maker’s true motive. all at the same time. the action will generate the benefit of preventing the harm of a terror attack x. supra note 49. 75. (q) (4) The harm that the preemptive measure is expected to inflict ( y). When a person who committed a terrorist act is contemplating another attack. Accordingly. such that an infringing act is permissible only if the product of this function is positive. 78 N.75 Notwithstanding this possible conflation of purposes.the fight against terrorism 145 we move on to discuss this aim.and forward-looking aims. in probability pq.U. targeting him may be retributive. In the context of targeted killing aimed at preemption. 76. the suspect). and focus on the ex ante perspective. The threshold function can take the following form: (1) T = ( px–y) – K For example. is lower than 1. before it is known whether the action will succeed in inflicting harm on the suspect. If this assumption is relaxed. the intended killing is impermissible given these values.77 The action’s cost is denoted as qy. As discussed above. economics. Moreover. . such that: (2) T = px – yK ′ For reasons discussed in chapter 4.146 law. The main alternative is to set the threshold level as a multiplier. it is certain that the terror attack will not take place. and will result in killing two persons). and the probability that the state action is successful q. 77. The threshold function evaluates the infringement from either an ex ante perspective. It is assumed that if the action results in killing the targeted person.78 we tend to favor combined threshold functions: (3) T = px – yK ′ – K In this function. and morality thwarted p. x = 2 (it is certain that the terror attack will occur unless thwarted by killing the would-be perpetrator. we assume that the action is certain to succeed (such that q = 1). as is typically the case. y3 . each multiplied by one type of harm. ( y1. or ex post. in principle. the threshold function can also take other forms. K ′ may be a vector of multipliers.). 93–96. the killing is permissible only if the threshold level. The relevant costs that should be multiplied by K ′ may be only part of the act’s actual costs (or harms) y. the amount of (relevant) net benefit necessary to render a constraint infringement permissible should be a function of the actual or probable harm inflicted by the infringing act. yet the threshold is positive even if infringing the constraint causes no harm. if p = 1. and y = 1 (the targeted killing will result in intentionally killing one person. For simplicity. . . . the probability pq should denote only the reduction in the probability of attack as a result of the preemption. y2 . after it is known that harm was inflicted. If this parameter is higher than 1. See supra pp. 78. K. ” . It is unclear whether unintended potential benefits.the fight against terrorism 147 We now move to discuss the two elements of the threshold function—first the variables that determine the action’s relevant net benefit and then the parameters K and K ′ that determine the threshold’s shape and magnitude.79 We tend to answer this question in the affirmative. supra note 40 (arguing that only the action’s aim may justify it. David Enoch. mainly the indirect effect of reducing terror attacks through general deterrence. as a presumably unintended byproduct. 43 (2006). as it calculates the action’s benefit by taking into account only the direct harm of the prevented terror attack. the benefit of liberating the people of Iraq from an oppressive regime. a moderate deontologist may wish to exclude or discount chronologically remote harms of the relevant would-be terror attack and harms whose probability is low. and Beyond: A Comment on the Justification of the Use of Force.80 Focusing on preemptive measures. not the positive side effects). at § 27. probabilistic. For instance. See Cryer & Simester. Deontologically constrained CBA may treat future. it also generated. the Israeli Supreme Court decision in Ajuri. 80. The court further stated that once this element is proved. the discretion whether to exercise this power is subject to the proportionality requirement. Excluding or discounting these harms is tantamount to excluding or discounting the benefits generated from the preemptive action. Side-Effects. should also count in calculating the act’s net benefit. and small outcomes in the same way. 4. and in this respect “there is no defect in the military commander taking into account considerations of deterring others in deciding whether to issue the order. but it need not necessarily do so. L. 7 Theoretical Inq. while the arguable aim of the invasion of the United States and its allies to Iraq was related to preemption. These excluders may echo 79. Cf. It ordinarily multiplies any such cost by the probability of its occurrence and employs a discount rate to determine the present value of future benefits and costs. Ends. Threshold functions (1) – (3) reflect the view that the infringement is only justifiable if the act directly thwarts a terror attack by physically disabling would-be terrorists. Means. supra note 65. The court held that the military commander is empowered to issue an order assigning a place of residence only when it can demonstrate that the person is dangerous. The Net Benefit (a) The Relevant Variables Standard CBA considers any expected cost of a thwarted terror attack as a benefit of the preventive action. e. Fletcher. See also David Luban. 83. Similarly. only if it aims at thwarting an imminent harm. which are lexically inferior to the harm that the preemptive action inflicts. 151–60.83 One may wish to exclude or discount chronologically remote harms of the relevant would-be terror attack based on instrumental and contingent considerations. See. The more distant the expected harm.81 This requirement can be interpreted as referring to either the temporal element or the probabilistic element of the threat. Preventive War. 86–87. another way. discussed here. one might not wish to exclude the danger of a terror attack that is expected to result in a high number of victims. For a discussion of these considerations in the context of curtailing speech. . it seems implausible to universally disregard future harms altogether. is to exclude such harms from the calculation of the action’s relevant net benefits. supra note 51. Leverick. supra note 58. the more difficult it is to assess its probability and magnitude. 196–201. Sangero. 85. under which an act is considered preemptive. 153–55. at 18–28. there is a requirement for some kind of immediacy”). 86. 82. For a discussion of reasons for the impermissibility of killing to protect property see. See supra pp. see infra pp. See infra pp.g. One way. it seems that in setting the minimal probability threshold. 84. at 131–42. & Pub. one should plausibly take into account the type and magnitude of the expected harm.82 It can be reflected in the analysis in two ways.148 law. and thus the greater the danger of making an erroneous decision.84 A moderate deontologist may also exclude harms that the suspect aims to cause. Arguably. . at 150–65 (“In every one of the legal systems that were examined . regardless of their size. discussed in the next subsection. See infra pp. supra note 49.86 81. and thus justifiable. However. A moderate deontologist may also exclude chronologically remote harms whenever the state will have an opportunity to prevent the harm without killing the suspect. since the availability and effectiveness of such alternative measures vary from one scenario to another.85 then an infringement of the constraint against killing is never permissible for the sake of preventing pecuniary losses. even if its probability is rather low. Thus. economics. If one considers human dignity and bodily integrity as lexically superior to pecuniary losses. is to set a much higher threshold when the risk is not imminent. 32 Phil. . and morality the criminal law self-defense doctrine. the only types of benefit that can justify overriding the constraint against actively/intentionally killing a person is the saving of human lives or preventing serious injuries.. e.g.. As discussed below. 88. deontologically permissible courses of action requires redefining the relevant variables of the threshold function according to their marginal values. Thus. the relevant cost is only the added harm that the infringement inflicts in comparison to the alternative. If y. then one may construct a threshold function without confronting difficulties of incommensurability. Cf. UK. McCann v. 207. 87. the threshold function may be considerably simplified. also known as the requirement that the infringement will be narrowly Aff. the harm that the preemptive measure is likely to inflict. 233 (2004) (“the need to formulate the doctrine of preventive war narrowly suggests that the only threat justifying a preventive war is that of an armed attack against the basic rights of a state’s people. (b) Marginal Net Benefit and Alternative Courses of Action In deciding whether to take a certain anti-terrorist measure. Suppose that the only benefit that may ever justify killing a person is the saving of human lives. the action’s relevant benefit is only the difference between the risk of a terror attack if the alternative course of action is pursued and the magnitude of this risk under the current one. Similarly.”). (1995) 21 EHRR 97 (holding that killing terrorists was justified as a means to thwart an immanent risk of a deadly terrorist attack.88 This analysis affects the content of the “minimal impairment” requirement. one should compare the measure not only to inaction but also to other courses of action that either do not infringe any deontological constraint or whose net benefit is large enough to render the infringement permissible. 155–56. In particular. See infra pp. . Specifically. since the government could have used alternative measures to thwart the risk. the inquiry is whether the more harmful infringement is justified given its marginal net benefit. also represents a number of lives.the fight against terrorism 149 If one excludes all but very few types of harm. not its economic interest in maintaining a level substantially beyond the fulfillment of basic rights.87 The comparison to alternative. In that case. such as arresting the suspects at an appropriate stage). yet that the “anti-terrorist operation as a whole” was unjustified. this qualification may well result in a change in the values of K and K ′. the decision-maker should consider those alternatives that mitigate the risk of a terror attack through less harmful acts. x would not represent the terror attack’s entire possible harm but only the number of persons that would be killed. 169–70. we suggest that the evaluation of an infringement must also include a comparison to less harmful alternatives that are possibly less effective in tackling the risk. 90. 103. According to this requirement. this process is far from arbitrary.. at 188. 5.C.). The size of the threshold is determined by the moral severity of the infringement. An infringement of the former type. As already discussed.R. Separating Minimal Impairment from Balancing: A Comment on R. which is the focus of the present section. and morality tailored to achieve its aim.A. v. Oakes. Posner & Vermeule. in order to determine whether the action’s marginal net benefit is large enough to justify the harsher measure.g. [1986] 1 S. an infringement meets this requirement if it is the “least-harmful” among all possible infringements that are equally effective in thwarting the risk. . common to the criminal law doctrine of self-defense and to human rights law.89 In contrast. .C.150 law. . a central factor determining the size of the threshold is whether the infringement involves an intended harm or merely a foreseen one. As mentioned.”91 The following discussion demonstrates that even though there is room for discretion in setting the threshold level. e. 195 (1999). Sharpe (B.”90 and thus “[it] is quite mysterious .C. given the value of the parameters K and K ′. why the sheer catastrophic size of the threatened harm should matter. the scope of the harm that the infringement inflicts should be proportional to the act’s benefit (that is. at 188. economics. Id. See. v. This threshold can be interpreted as reflecting the proportionality requirement. such infringement is only permissible if its (relevant) net benefit surpasses a certain threshold. According to some suggestions in the legal literature. to the terrorist attack’s expected harm). The Threshold (a) General The distinctive mark of deontologically constrained CBA is that whenever an act or a rule infringes a deontological constraint. We also 89. Posner and Vermeule argue that a central deficiency of moderate deontology is that it “builds in an arbitrary threshold. 5 Rev. entails a substantially higher threshold than the latter. the decision of the Canadian Supreme Court in R. supra note 10. See also Guy Davidov. Const. Stud. 91. 136–39. it is 92.96 This proposition rests on two grounds. as illustrated by the debate whether committing torture is worse than killing. the threshold should arguably be very high. In contrast. While we do not share the view that when the harm is imminent. These results are a function of p. the probability that the targeted person(s) will succeed in executing the terror attack unless thwarted. (b) Probability of the Terrorist Attack A central element in determining the permissibility of the infringing act is the expected result absent such an act. the threshold should be set at a low level only if the harm that the state inflicts is (reasonably) effective in preventing (or mitigating) the danger. rule-consequentialist considerations. Arguably. This distinction may also apply to the assessment of the efficacy of the infringement. and x. 89–91. .94 In addition—and this is the focus of the current discussion—the probability of the risk may affect the size of the threshold.95 we believe that in these cases the required threshold may be relatively low. 93. 95. As discussed above. 96. See infra p. the ranking of different types of harms is not as simple as it may seem. 118 Ethics 659 (2008). the preemption does not infringe the constraint against active/intended infliction of harm due to the aggressor’s culpability. See supra pp. it serves important secondorder. such that an infringement can be justified only in catastrophic or near-catastrophic circumstances. instances of imminent threat give rise to a unique type of justifiable infringement upon the aggressor’s right to life. the expected harm of the terrorist attack. On the Success Condition for Legitimate Self-Defense.93 We shall now discuss two additional factors that may affect the size and shape of the threshold—the level of certainty that the targeted person will attack if not thwarted and his culpability. one may exclude low-probability risks from the calculation of the action’s net benefit.92 The type of harm is of course also relevant in setting the threshold. 94.the fight against terrorism 151 submit that the threshold should be substantially higher when the infliction of harm by the state aims at deterrence rather than preemption. 140–43. 162. See supra pp. where the likelihood that the aggressor will attack is low. Arguably. See Daniel Statman. See supra pp. However. First. When the risk is remote. the use of force prior to the existence of an imminent attack see Michael Walzer. or liberty in response to an imminent risk is qualitatively different from inflicting these harms in other circumstances. or detention will become standard policy measures. Arguably.g. W. The deontological constraint against actively/intentionally killing a person reflects not only the moral value of life but also a normative judgment about the meaning of errors. When punitive measures are concerned. driven by cognitive bias99 and by the government’s possible tendency to give a higher weight to one type of error (inaction that results in a terror attack) over the other (inflicting harm on innocent persons).e.100 Setting probability thresholds may serve as a necessary corrective mechanism. For the use of this terminology in the broader context of “preventive war. supra note 49. Faced with uncertainty regarding the threat imposed by a suspect.. at 87–89. torture. Valuing Risks of Death from Terrorism and Natural Disasters. a decision-maker must weigh the risk of a “false negative. Leverick. Luban. 99. 100. providing a probability threshold (the requirement that the guilt of the accused be proven “beyond a reasonable doubt”) reflects a normative judgment regarding the appropriate weight of each of these errors. the more difficult it is to assess its probability and magnitude. Probability Thresholds. taking one’s life. Kip Viscusi. when the risk is remote.98 In addition.97 The concern is that if the size of the threshold is independent of the probability of the attack.152 law. against that of a “false positive. economics. inaction that would result in a terror attack.” i. See. there is a high danger of erroneous. 1293 (2006–2007). . both in time and in likelihood.. The more remote the expected harm. One may expect systematic overestimation of threats. dignity. Just and Unjust Wars 77-79 (3d ed. preemptive measures such as targeted killings. Masur.” namely. Risk & Uncertainty 191 (2009) (reporting that nationally representative sample values preventing terrorism deaths at about the same level as preventing deaths from traffic accidents. an unnecessary infringement when the suspect would not have attacked anyhow. supra note 86. evaluation of the legitimacy of the infringement. It embodies the deontological notion that the harms generated by false convictions of 97. at 225. 38 J. and sometimes biased. e. Rev. 2000). and morality normally less likely that the infringement is necessary to prevent the attack. 98. although the latter poses a much greater personal risk). Setting the size of the threshold according to the imminence of the risk is also grounded in deontological considerations that would hold true even absent any of the above considerations. Jonathan S. implemented on a regular basis.” that is. 92 Iowa L. . in addition to a probabilistic element.101 Applying a probability threshold in the case of preemptive measures reflects a related rationale.102 The view that one type of errors (false positive) is morally worse than the other (false negative) entails that the government can justifiably act only when the probability of a terror attack is sufficiently high. 46 Arizona L.104 In the international relations context. 103. a typical example is that of launching an attack against a hostile state or organization that does not yet possess weapons of mass destruction but is highly likely to gain such weapons and to wield them against the state in the near future. supra note 49. L. According to the doing/allowing and intending/foreseeing distinctions. 60–70. 172–83 (2005).g. Alan M. 41–46. Alex Stein. Ferzan. See supra pp. Rev. and Women Who Kill Their Batterers. Robert Nozick. id. An often-cited example in the criminal law literature is that of a battered woman who kills her abusive partner when the threat to her life is not immediate but still inevitable. it is often the case that a terrorist can be preempted only before the harm becomes immediate (or that the inevitable harm to innocents at that point in time is significantly lower). . 71 N. Rosen. While some scholars insist that in 101. 102. as she lacks any meaningful alternatives to the use of deadly force. as well as the distinction between deontological options and deontological constraints.103 However. On Self-Defense.g.C. 231–37 (2004). supra note 49. State and Utopia 96–108 (1974). Kimberly Kessler Ferzan. e. A threat is considered imminent only if it is expected to materialize within a very short period of time. Anarchy. 105. this more stringent approach to the requirement is questionable. Leverick. The moral weight of the harm that results from a false positive—an active and intended infliction of harm—exceeds that of harms generated by a false negative—a passive.the fight against terrorism 153 innocent people greatly exceed the harms generated by acquitting guilty criminals. Leverick. at 87–89. at 218–31. a state’s failure to eliminate threats of terrorism is morally less significant than an erroneous active/intended harming of people. 104. Imminence. e. 213. Foundations of Evidence Law 141–53. Rev 371 (1993). In the context of the criminal law justification of self-defense. Dershowitz. See. unintended failure to prevent harm.105 In the fight against terrorism. Preemption—A knife that Cuts Both Ways 76–104 (2006). such that the likelihood of a false positive is lower than that of a false negative. at 89–93. the “imminence” requirement typically contains a temporal. Richard A. See. Defending Imminence: From Battered Women to Iraq.. supra note 49. Robinson.109 In addition. it will be too late to take an effective measure to preempt the harm. e. is that in the absence of imminence. at 233–34. Luban. Id. at 21.. Ferzan. even relatively improbable attacks can attain a high cumulative likelihood within a few years.112 This is not to say that the temporal element of the risk is completely irrelevant. Uniacke. at 159. This rationale does not apply to the case of state action. supra note 81. 14 Eur. Rev. Leverick. 74 Notre Dame L. 26 Wash. 1475 (1999). at 108.108 so that the morally relevant issue is not the immediacy of the harm but the immediacy of the response necessary to thwart it. 292 (S. the infringement of the aggressors’ right to life may well be justified.106 others argue that in some or all of these examples. at 255–62. Jeremy Horder.107 According to this view. that is available only in the context of criminal liability. Paul H. that is. 98 (2003). supra note 98. A Unified Excuse of Preemptive SelfProtection. Int’l L.P. supra note 107. International Law and the Preemptive Use of Force. at 105–52. Otherwise. supra note 104. A middle ground. and morality such cases the self-defense justification does not apply. the crucial question is not how close to completion the threat is. 209 (2003). Dershowitz. Larry Alexander. J. at 79. Shute & A. On the Necessity of Pre-emption. economics. Occasionally. killing an attacker may be subject to a (partial) excuse defense. to be effective. as the risk is not imminent.g. Anthony Clark Arend. but rather when the preemptive measure should be taken. one must take the preventive measures before the threat is imminent in the temporal sense.111 The decisive factor is thus the probability of the attack in the absence of preemption rather than its timing.154 law. Abraham D.110 Accordingly. Assuming. . at 234. one may argue that the requirement of imminence in the criminal law self-defense justification primarily aims at restricting the use of “self help.” It reflects the presumption that when the risk is not imminent. 108. Fletcher. Rosen. Killing the Passive Abuser: A Theoretical Defece. Sofaer. 89. Criminal Law Defenses § 131(c) (1984). Walzer. 113. at 77. in Criminal Law Theory: Doctrines of the General Part 283. that an action by the United Nations Security Council under Chapter VII of the Charter of the United Nations is not a viable option.. supra note 86. supra note 105. one may call the police for help. supra note 104. Simester eds. supra note 49. 112. Id. the would-be victim would bear the risk that when the risk is imminent. See. 110. Robinson. 109. Ignoring the temporal element may raise the problem of cumulative likelihood over time. 2002).113 It may also raise 106. 111. at 77. the imminence requirement should be subsumed within necessity (the so-called “immediately necessary” standard). Q. Sometimes. 107. Terrorism and the Legality of Pre-emptive Force.114 If so. such that Kim is much lower than Kr . Using a multiplier form of T. One category consists of cases in which there is absolute certainty that the suspect will launch a terrorist attack if not preempted. p = 95%) of killing others. and may thus be rather low. a moderate deontologist may wish to divide the spectrum of risks into two categories and set different thresholds for each. one may introduce another parameter. . the likelihood of an attack if the state takes an alternative. Michael Bothe.”115 The other category consists of cases in which the risk is lower than the probability threshold of “moral certainty. two distinct levels of K are defined. 14 Eur. Consequently. Individualism. as well as cases in which the probability is sufficiently high to be considered a “moral certainty. Absolutist Moral Theories and Uncertainty. To incorporate this consideration.. J.  px − yK im if (4) T =   px − yK r if p ≥ p* p < p* In evaluating the permissibility of an infringement according to such a threshold function. Int’l L. Thus. assume that the targeted person poses an imminent risk (e.” K should be considerably greater in the latter category. that is. 267. . and Uncertainty: A Reply to Jackson and Smith. denoted as Kim (where the risk is imminent) and Kr (where the risk is remote). W. however. 227 (2003). Frank Jackson & Michael Smith. a probability threshold denoted as p*. 525. 526 (2006) (arguing that in anticipatory self-defense the “interpretive latitude of the unilateralist becomes wider. On these grounds.g. yet the nature and quantum of evidence that can satisfy the burden of proof resting on the unilateralist becomes less and less defined and is often . 259 (2008). the threshold that should be met to justify targeting the aggressor will be set according to Kim. there is a 19% chance that the terrorist will escape 114. 115. the assessment of imminence should take into account both the likelihood of harm and the period for which this likelihood is calculated. To illustrate.the fight against terrorism 155 difficult evidentiary problems. 275 (2006). less harmful measure. that the government can also try to capture the terrorist and that the probability of success of this measure is 80% (in comparison to the assumed certainty that the targeted killing will thwart the attack). . See also Ron Aboodi. 103 J. Phil. The Past and Future of the Claim of Preemptive Self-Defense. 105 J. it is essential to measure the marginal value of p. Michael Reisman & Andrea Armstrong. Int’l L. extrapolative and speculative”). Phil. Adi Borer & David Enoch. 100 Am. Deontology. J. Assume. the variable p of the threshold function. however.19. as only its marginal value is relevant). The chances that the would-be terrorist will escape (20%) and launch a terror attack (95%). In this case. the probability that limiting the freedom of movement of each member of the group will yield this benefit is 1%. Which threshold function is appropriate in such a case? Defining the action under consideration as inflicting harm on the group would imply that this is a case of imminent danger. Assuming that this marginal probability is lower than the probability threshold p*. 118. or at least a case that meets the probability threshold. assessing the infringement on an individualized basis would mean that the risk is very low (only 1%). then one should only consider the marginal benefit of the targeted killing. in moral certainty. Hence.117 Setting different thresholds for justifying anti-terror measures depending on the probability of the terrorist attack raises another thorny question.. In contrast. Suppose further. namely 19%. supra note 115. is the marginal one. However.2x0. as discussed earlier. If. such that a relatively low K is appropriate. Therefore. Consider. e. for example. hence calling for a very large K.118 we find it 116. but also a higher threshold Kr. economics. While some scholars seem to endorse the former approach. are 0. namely what is the relevant probability when an anti-terror measure indiscriminately affects both suspected terrorists and innocent people. that the only way to preempt the would-be perpetrator is by curtailing the freedom of movement of the entire group. 117.116 Trying to capture the terrorist would not be justified if it involves too high a risk to bystanders and to the soldiers.95=0. way below the probability threshold. and morality and carry out her terrorist plans. See. If so. save lives. as discussed above. the attempt to capture the terrorist is permissible given the values of the relevant variables and parameters. we suggest that the evaluation of an infringement must include a comparison to less harmful alternatives that are possibly less effective in tackling the risk. assuming that the two events are independently distributed. the targeted killing should be evaluated in comparison to the alternative of inaction. Jackson & Smith. the result is not only a possibly lower net benefit resulting from this act in comparison to the alternative of inaction (since the expected risk of a terror attack is now lower. limiting the freedom of movement of the whole group will. .156 law. according to which one should evaluate the targeted killing.g. in order to determine what the appropriate value of K is. a case in which it is known that only one person out of a group of one hundred intends (in “moral certainty”) to commit a terrorist attack. Rev. On the one hand. e. See e.. at 661. Chi. 1723 (2007). Murad Hussain. The Ethics of Killing in War. 122. the laws of armed conflict proscribe only targeting civilians. he held that the reasonableness of a search must be determined by the existence or nonexistence of “individualized suspicion of wrongdoing. Without delving into this complex issue.g.” See also id. See. See also Bernard E. Judge Richard Posner stated that if the roadblocks were assessed “at the level of the entire program . it should be noted that in addition to the collective/individual threat issue. See Jeff McMahan. terror attacks..123 it is an established convention. supra note 115. 120. In this case. are not privileged as acts of war and should thus be assessed in the usual way as culpable homicides. Edmond v. For a related view see Aboodi et al. the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. aff ’d. given the high ‘hit’ rate and the only modestly intrusive character of the stops. 183 F. may inflict pervasive dignitary and stigmatic harms when such conduct-based profiling specifically targets activity that is also expressive of Muslim identity). Edmond. these roadblocks probably are legal. Judge Richard Posner on Civil Liberties: Pragmatic Authoritarian Libertarian. 123. to justify preemptive measures 119. 74 U. Goldsmith. 920 (2008) (Counterterrorism measures that scrutinize conduct and behavior that are presumed to be probative of terrorist activity. it raises the additional concern of discrimination and the indirect harms associated with it.119 The application of the former approach results in circumventing the deontological constraint against preempting a person when the risk posed by that person is lower than the relevant probability threshold. Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling. 117 Yale L.the fight against terrorism 157 rather problematic. The problem is how to classify suspected terrorists. the fight against terrorism raises a dilemma that has long been considered moot in “classic” warfare. 114 Ethics 693. In the latter context. Id. 722–73 (2004). Daniel Moeckli.g. supra note 71: “Basic rule: In order to ensure respect for and protection of the civilian population and civilian objects.121 In this respect. which violate the laws of war. Harcourt. Accordingly. when profiling is based on religious or ethnic classification.. the court enjoined the Indianapolis police department from setting up roadblocks to catch drug offenders. then the court would perform a cost-benefit analysis. .S.3d 659 (7th Cir. Article 48 to the First Protocol to the Geneva Conventions. City of Indianapolis v.” However.122 and thus do not subject the legitimacy of killing combatants to an inquiry of the level of risk posed by each enemy combatant. 531 U. . .J. 32 (2000). Article 51. 121. Human Rights and Non-Discrimination in the ‘War on Terror’ (2008). L. While the justification of this approach is not self-evident.” since if the court were to adopt a program-level analysis. 1999).120 The question of indiscriminate measures is closely connected to the issue of profiling. . capabilities.” In the context of detentions.127 124. e. economics. with short periods of rest between them. at § 39: “A civilian who has joined a terrorist organization which has become his ‘home. 108 Colum. 36 Cornell Int’l L. loses his immunity from attack ‘for such time’ as he is committing the chain of acts. supra note 71. Eichensehr. in Krisensicherung und Humanitärer Schutz–Crisis Management and Humanitarian Protection: Festschrift für Dieter Fleck 505 (Horst Fischer et al eds. 516 (2004). is sufficiently high. Rumsfeld. L. Government of Israel. including those who plan an attack. Article 51(3) of the First Protocol to the Geneva Conventions. id. such as when he shoots or plants a bomb. 126.125 According to a competing approach.” Hamdi v.J. See. all persons “performing the function[s] of combatants” are legitimate targets. the United States Supreme Court came close to this approach. 542 U. Direct Participation in Hostilities and 21st Century Armed Conflict. 31. Orna Ben-Naftali & Keren R. 179 (2004). Michaeli. Targeted Killing. 127.g. to show that the risk that this person poses.”124 According to one view. L. one must establish the target’s “individual dangerousness. On Target? The Israeli Supreme Court and the Expansion of Targeted Killings. this approach comes close to classifying terrorists as (illegal) combatants. commits a chain of hostilities. Against Torture in Israel v. Rev. one may wonder whether the fact that terrorists violate the laws of war should provide them a wider protection from preemptive measures than the one accorded to “legal” combatants. 111 (2004). Preventive Use of Force and Preventive Killings: Moves into a Different Legal Order. supra note 43.. ‘We Must Not Make a Scarecrow of the Law’: A Legal Analysis of the Israeli Policy of Targeted Killings. 116 Yale L. See also Michael N.158 law. Georg Nolte. 1873. The Israeli Supreme court decision in Public Comm. at § 35. 51–63 (2007). 2004). 233 (2003). Waxman. For a critique see Matthew C. The Israeli Supreme court decision in Public Comm. unless and for such time as they take a direct part in hostilities. It provides that “civilians shall enjoy the protection afforded by this section. by finding legal authorization for the detention of at least those persons who were “part of or supporting forces hostile to the United States or coalition partners” in Afghanistan and who “engaged in armed conflict against the United States there. . Combatants—Lawful and Unlawful. 1877 (2007) (“This narrow reading assures that the target poses an immediate threat (the timing of the attack signals the proximity of the threat)”). given his specific activities. 5 Theoretical Inq..’ and in the framework of his role in that organization . Government of Israel. . L. 125.126 Moreover. The rule set forth in this respect in the First Additional Protocol to the Geneva Conventions is ambiguous. Kristen E. by referring to a person’s active “membership” in a terror organization as a sufficient basis for denying him the protection accorded civilians. and intentions. a civilian might be a legitimate target for attack only if the attack against him is carried out while he is directly participating in the hostile activities. 507. against Torture in Israel v.S. Detention as Targeting: Standards of Certainty and Detention of Suspected Terrorists.J. Tamar Meisels. 1365 (2008). Daniel Statman. 26 Law & Phil.” that is. 5 Theoretical Inq. and morality against a suspected terrorist. On the other hand. Schmitt. not only must the authorities have clear and convincing evidence of that person’s active involvement in terrorist activities.”). See also McMahan.the fight against terrorism 159 In our opinion. Int’l L. 129. . 18 October 1907. At the same time. depending on the expected probability of the terrorist attack absent those measures. The Hague. they wear a fixed distinctive emblem recognizable at a distance and carry arms openly. annex to the Hague Convention (IV) respecting the Laws and Customs of War on Land. the case readily assimilates to the restricted doctrine of preventive war. if at all. as sufficient and conclusive evidence that this person poses a sufficiently high risk justifying targeting him. Romantics at War— Glory and Guilt in the Age of Terrorism 108 (2003). states that exhibit clear evidence of a military build-up with aggressive intentions. the pertinent probability is the one referring to the risk posed by each person individually and not by the group as a whole (which leaves the door open to indiscriminate measures only if their expected 128. One should not rule out the legitimacy of targeting persons who violate the laws of war. For a related argument see Luban. [In addition] If a state seems likely to develop WMD and give them to terrorists. inter alia. They must also have credible evidence that the person poses a real and concrete danger to the lives of others that cannot be thwarted without attacking him at the time he is attacked”). 130. See George Fletcher. the appropriate approach is an intermediate one. even when the action is not taken while they actually commit a terror attack.” the threshold need not be extremely high. The risk of targeting innocent civilians thus requires determining what level of risk each person. only against . one should not regard a person’s mere “membership” in a terror organization. The relevant inquiry should not focus on the temporal element but rather on the magnitude of risk that such persons pose. supra note 123. Unlike “legal” combatants who are characterized as such only if. at 230 (“preventive war can be justified. Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?. . or his past involvement in hostilities. Such determination should take into account all available information and not rest on the mere classification of persons as (illegal) combatants. poses.128 “illegal” combatants cannot be easily identified. 211 (2005) (“given the inherent uncertainty in identification. David Kretzmer. a deontologically constrained CBA of anti-terror measures should plausibly set different thresholds for the net benefit that may justify the pertinent infringements. When the probability reaches “moral certainty. in order to justify targeting a suspected terrorist. Article 1 of the 1907 Hague Regulations concerning the Laws and Customs of War on Land. anti-terror measures may be justified only if a very high threshold is met. . who is not a “legal” combatant. 171. 16 Eur. supra note 86.129 To sum up. at 722–23.130 When an anti-terror measure entails indiscriminately harming both suspected terrorists and innocent people. J. When the probability is lower. 272–73 (1975). A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability. L. Torture. George P. & Pub. 104 Ethics 252. Paul H. 356 (1987). at least in a context closely related to his blame. Rev. Torture and the Balance of Evils. The parameter K expresses the notion that the expected harm if the government does not apply the 131. 321–22 (1989).. Rethinking Criminal Law 857–58 (1978). See.”). David Wasserman.g. Jeff McMahan. . A person’s “membership” in a terrorist organization should not be sufficient to make him a legitimate target. . Justifying Self-Defense. (d) Summary To recapitulate. fairness requires that it be the terrorist. Moore. 999. 23 UCLA L. Res. J. Michael S. (c) The Aggressor’s Culpability Another factor affecting the size of the threshold K is the preempted person’s moral responsibility for creating the danger. a considerably lower threshold should apply when a preemptive measure is taken against a morally blameworthy person. K plausibly depends on the type of anti-terrorist measure. She may kill any number of [culpable aggressors] if this is necessary for self-defense. 132.131 One may also argue that the aggressor’s responsibility for the situation justifies discounting the value of his interests.. and Law. or usefulness to society. depending on the preempted person’s moral responsibility. Robinson.g. L. and morality net benefit is extremely high).160 law. 261 (1994) (“[A]ccording to commonsense morality. Such discounting may legitimize selfdefense even if the number of targeted aggressors exceeds the number of their intended victims. economics. 280. . If a terrorist has made it inevitable that either he or the potential victim(s) will be harmed. Fletcher. In contrast. e. Jeff McMahan. quality of life. A very high threshold applies when the state actively/intentionally harms an innocent person who unintentionally or negligently poses a threat to others. Shlomit Wallerstein. and the targeted person’s degree of culpability. Morality. 23 Isr. 16 Phil. Aff. 37 Case West. an Innocent Victim is permitted to kill a [culpable aggressor] irrespective of differences in age. . 91 Va. See. e. Justifying the Right to Self-Defense: A Theory of Forced Consequences. 1027–32 (2005). Rev. Self-Defense and the Problem of the Innocent Attacker. 266. Rev. 241 (2006).132 A threshold function can reflect this consideration by setting two or more different levels of the multiplier K. A more nuanced inquiry would also take into account the degree of certainty of the preempted person’s guilt. the likelihood that the terrorist act will be carried out absent the preemption. Int’l L. Under most circumstances. and the active/intentional harm is inflicted only on people who are morally responsible for executing the terror attack and causing its harm (x) absent the preemption. by breaking the victim’s will. No. or to coerce the sufferer or others to act in certain ways. the definition of torture in Article 1 of the Convention against Torture and Other Cruel.” we denote the intentional infliction of extreme physical suffering on a nonconsenting.133 The Convention against Torture and Other Cruel. For classification of different interrogation techniques that violate one’s right to dignity. available at http://ssrn. 100-20 (1988). Inhuman. Treaty Doc. 1984. 10. Torture Torture poses one of the most troubling dilemmas in the fight against terrorism. defenseless person. adopted Dec.). While the multiplier K. 53(4) PD 817. since the former but not the latter may justify killing even a large number of culpable aggressors to save a fewer number of intended victims.M. Cf. and Degrading Treatment: The Words Themselves (working paper. State of Israel. See also Jeremy Waldron. there may be cases in which it would be equal to or even less than 1. px (inactive/unintentional harm) and the harm that the measure inflicts.S. reflecting the magnitude of the deontological constraint against actively/intentionally harming the suspected terrorists.T. In such cases. Inhuman or Degrading Treatment or Punishment requires signatory states to criminalize all acts of torture and take effective measures to prevent 133. y (active/intentional harm) are not symmetric. Is it ever legitimate to use coercive interrogation techniques in order to force a person to reveal information that can save lives? By “torture.N. however. Cruel. see the decision of the Israeli Supreme Court HCJ 5100/94 Public Comm. This may be the case when the probability p exceeds the threshold level of moral certainty.com/abstract=1278604.L. 2008). the difference between a standard CBA and a deontologically constrained one may be rather small (though the two may still diverge in terms of the scope of costs and benefits each one takes into account—the former being much more inclusive). to obtain a confession or information. will often be quite large. .the fight against terrorism 161 preemptive measure. 6. English trans. S. 1465 U. In fact. available at 38 I. K would substantially exceed 1. Inhuman or Degrading Treatment or Punishment. p*. a deontologically constrained CBA may even be more permissive than a standard CBA. and thus a deontologically constrained CBA will be more restrictive than a standard one. 1471 (1999) (Isr. 113. against Torture in Israel v. should not the same analysis apply to the torture of at least culpable persons in similar circumstances? Legal economists argue that killing is clearly worse than torture. L. David Sussman. Michael Davis.135 Torture clearly infringes a deontological constraint against actively inflicting intentional physical and psychological harm. supra note 133.138 Moreover. at 189. it is permissible to kill a person who poses an imminent risk to the lives of others. 136. 1411 (2009). The Moral Justification of Torture and other Cruel. “Precommitment” and “Postcommitment”: The Ban on Torture in the Wake of September 11. § 1003.scotusblog. 105 Colum. supra note 133.C.134 Numerous national legal systems lay down comparable prohibitions. at 185–87. Inhuman or Degrading Treatment or Punishment. 2739. and morality acts of torture in all territories under their jurisdiction. 15 (2005) (arguing that a unique moral aspect of torture separates torture from other types of violence). 1. that under certain circumstances. 109-148. Detainee Treatment Act of 2005. Assuming. Aff. Bush declared that he considers it an unconstitutional encroachment on his authority. App. President George W. 137. at 82.Leahy-Feinstein-Feingold%20Letters. as the tortured person is reduced to a reflex produced within his body. 95 Cal. Christopher Kutz. See generally Jeremy Waldron. 119 Stat. 19 Int’l J. 2013. See also Sanford Levinson. L. Posner. inhuman. supra note 10. 146 states have ratified the Convention. Rev.. 1681 (2005). Convention against Torture and Other Cruel. or Degrading Treatment. 165 (2005). The Department of Justice has contrived an interpretation of the law according to which a conduct does not count as cruel. 3. 30 Cardozo L. 81 Tex. What’s Wrong with Torture?. Justice Ethics 58 (2007). See also David Luban.pdf. Torture and the Professions.139 134. Henry Shue. Phil. Waldron. See a letter from William E. Torture violates the prohibition against assault upon the defenseless. economics. inducing a person to act by harming him is worse than harming one to prevent him from acting because it uses him as a means. Why is Torture “Different” and How “Different” is it. For a general survey. coercive interrogation should be permissible a fortiori. at 81. and Existential Politics. & Pub. 124. 139. 161. however. supra note 10. e. see. Necessity. 125 (1978).S. or degrading if it is undertaken on behalf of a legitimate governmental interest such as intelligence gathering. as the victim of torture can at least survive. Posner & Vermeule. Colb. worse than killing him.com/movabletype/archives/CAT%20 Article%2016. following the enactment of the latter law. available at http://www. 7 Phil. supra note 10. 2739. Rev. §§ 2340–2340A (2000) (outlawing torture). see 18 U. In the United States.g. 235. Posner. Rev. supra note 10. so that he is not bound by it. L. advocates of an absolute prohibition of torture argue that torturing a person may be.136 They thus claim that if it is permissible to kill a person in certain circumstances. at least in some circumstances. Moschella to Senator Patrick Leahy. . 2 Crim. Pub.137 In contrast. Posner & Vermeule. Torture. 138. 33 Phil. 135.162 law. No. 2032 (2003). L. Sherry F. Rev. However. & Pub. Torture and Positive Law: Jurisprudence for the White House. It reduces a person to his corporality. Inhuman. Torture. Aff. is incompatible with due respect for human dignity.” Shue. The assessment that at least under some 275 (2007). Henry Shue was influential in arguing that while torture may be justified when it is the least harmful means available to secure a supremely important aim.142 In what follows. Mialon & Maxwell B.” would induce interrogators to use this measure in other circumstances as well. Stinchcombe. Welcome to the Desert of fhe Real!: Five Essays on September 11 and Related Dates 103–04 (2002). it should nevertheless be strictly prohibited. 140. See also Hugo M. 91 Va. even if limited to extreme circumstances of the so-called “ticking bomb scenario. 231 (2006). since “[a]ny practice of torture one set in motion would gain enough momentum to burst any bonds and become a standard operating procedure. Res. 117–22. J. let alone the formulation of administrative guidelines for its execution or the enactment of laws regulating it. as well as the concern for an abuse of power. 1429–32 (2005). we concentrate on the first-order arguments. was discussed in chapters 2 and 5. central to the academic debate on torture.edu/~hmialon/ TortureInCounterterrorism. in an armed conflict) is worse than torturing him. Torture. Inhuman and Degrading Treatment and Punishment: Can the Absolute be Relativized under Existing International Law?. The slippery slope argument. Kreimer. rest on questionable empirical assumptions. Seth F.the fight against terrorism 163 Another line of argument. L. We shall not discuss here these second-order considerations in any detail. the act of torturing a defenseless person may be considered more disrespectful to his dignity as an autonomous human being. it does not necessarily exceed a purely consequentialist framework. Yuval Shany. Crocker. the question is whether justifying torture is different from legitimizing killing. 837 (2007). while the end result of killing a person (for example. Liberalism.emory. focuses on second-order considerations. at 606–10. supra note 138. The Prohibition against Torture and Cruel. L. at 1440. . J. supra note 134.pdf (arguing that legalizing torture can significantly increase torture of innocent individuals through a slippery slope mechanism). See supra pp. Rev. too. Torture in Counterterrorism: Agency Incentives and Slippery Slopes (working paper. Mialon. arguing that the very discussion of the possible legitimacy of the use of torture is dangerous in this respect and should be avoided. It stands to reason that. Even if this argument holds. 56 Cath. Slavoj Žižek. L. 142. Several scholars have claimed that the very legitimization of the use of torture. 278. Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror. supra note 25. Sue H. See also supra pp. 141. U.140 Some go one step further. supra note 139. 52–53. 70–75. 37 Case W. Int’l L. The argument that the mere discussion of torture. available at http://userwww.141 Here. Pa. 294–95 (2003). Rev. at 141. 2009). 6 U. David Luban. Henry Shue. Waldron. and the Ticking Bomb. Const. Torture in Dreamland: Disposing of the Ticking Bomb. Luban.service. 1425. who obtained the information as a collaborator in the terror attack. and potentially justified. One type of blame may be the interrogated person’s refusal to reveal information that can save lives. and morality circumstances. the state does not attribute blame to the tortured person for refusal to act in a way that can save lives. Arguably. 144.143 Another type of blame refers to the interrogated person’s activities outside the interrogation. one should distinguish between two types of cases. less harmful way to prevent the loss of lives. that is. is the interrogated person’s blame. supra note 138. by enabling the authorities to preempt terror attacks. and the threshold K is extremely high. a crucial factor in setting K. Sussman. the threshold K should be set at a very high level. we put this question aside as well. and torture can be justified only if its expected net benefit is saving the lives of 143. who is tortured to force his collaborators to surrender.. Another difficult question is how to classify the case in which the interrogated person is not a suspect. Setting aside for a moment the problem of incomplete information.144 Employing threshold function (4) in the present context. In the present context. case of torture. at 18. such as taking part in terror attacks.g. but an innocent person. In what follows. and (3) there is no other. the probability p represents the likelihood that all of the following three conditions are met: (1) the tortured person possesses information that can save lives and refuses to reveal it. As we saw. if p < p*. This case is different from the one in which the state actively inflicts intentional harm on a person to force some other person to avoid the attack or to otherwise surrender or provide information. torture is worse than killing does not warrant an absolute deontological constraint against torturing a terrorist (as even the active/ intended killing of an innocent person may be morally permissible under extreme circumstances). where the state does attribute blame to the interrogated suspected terrorist at least for his refusal to reveal life-saving information. (2) torture will be effective in obtaining reliable information and preventing the loss of lives. In the latter case. whether the value of p exceeds p*. . The latter context raises the difficult question of how to classify the case of such a blameworthy person. economics. and focus on the more typical. It seems that much of the difference between preemption and inflicting intentional harm against persons to force them to act does not lie in the conditions in which the infringement is justified but in the likelihood that these conditions are satisfied in reality. a central element in determining the magnitude of the threshold is whether the likelihood p that the infringement is indeed necessary to generate the desired benefit meets the requirement of moral certainty. e. who gathered it incidentally. the threshold that has to be met to justify the infringement.164 law. one must establish that executing the terror attack and killing people does not require the detainee’s involvement (thus preemption through detention is ineffective). 6 J. http://plato. at 1440–45.the fight against terrorism 165 hundreds or even thousands. 2008). are unimaginable. in Torture: A Collection 257 (Sanford Levinson ed. 147.stanford. Economics.. that circumstances in which torture could be morally permissible. See. For other examples see Seumas Miller. 23 Isr. James B. Yuval Ginbar. 3.edu/entries/torture/ (last revised Jan. Colb. L. Luban. However. 146. Only rarely would the probability that all these conditions are met be sufficiently high to justify setting the threshold K at a less than extremely high level. Law. White eds. e. However. and Torture. and that torture will induce the detainee to reveal the information. The European Court of Human Rights decided that threatening to use force against the kidnapper if he would not reveal the relevant information subjected him to “inhuman treatment.. 2009). refused to reveal information concerning the victim’s location. or even required. it is highly unlikely that the condition p ≥ p* is ever met in real-life scenarios. at 170.. 339 (2008). 146 (1989). Jeannine Bell. that the likelihood of attack is very high and that no alternative preventive means are available.145 It is notoriously difficult to verify all of these conditions. Commission of Inquiry into the Methods of Interrogation of the General Security Services regarding Hostile Terrorist Activity. Alan Dershowitz. See also Moore. in which a person accused of kidnapping a child was arrested while picking up the ransom.” prohibited by Article 3 of the European Convention on Human Rights. 83 Indiana L.J.B. & J. supra note 139.146 This is not to say.J. the efficacy of the preemption is typically self-evident. To justify torture. Powell. 22978/05 Gäfgen v. the efficacy of torture is typically much more dubious.g. Why Not Torture Terrorists? Moral. in Law and Democracy in the Empire of Force 265 (H. supra note 131. supra note 138. . e. For a discussion on the efficacy of torture in obtaining reliable information see. Germany (June 30. In contrast. See also Kai Ambos.. Practical and Legal Aspects of the “Ticking Bomb” Justification for Torture (2008). Torture. White. 261. A possible example is the German kidnapping case. Rev. Int’l Crim. Just. Davis. 262-3 (2008). §§ 60–70. To justify targeted killing the relevant likelihood is that the target will be involved in the terror attack if not preempted.147 145. supra note 139 (the uncertainty that inevitably clouds real-world interrogation warrants the complete ban of torture). that getting the information from the detainee will enable the authorities to prevent the attack. Stanford Encyclopedia of Philosophy. however. Behind this Mortal Bone: The (In)Effectiveness of Torture.g. and that there is no other effective way to prevent the terrorist attack. 2004). May a State Torture Suspects to Save the Life of Innocents?. Tortured Reasoning. It is in this respect that torture may be different from preemptive targeted killing. Only when p ≥ p* would the threshold K be set at a lower level. and there was a real risk to the child’s life. 2009). . and property of innocent people.000 potential victims from death or severe injuries annually. one must also establish that in each and every case the expected outcome of the infringement meets the threshold. This information. as it provides. In these cases. and morality Finally. However. to justify an act of torture. on average. economics. its permissibility is subject to an extremely high threshold. that is.149 Under what circumstances is the government allowed to endanger the lives of. is insufficient to justify a specific instance of torture that complies with the criteria set by the general policy.166 law. See supra pp. as a mere side effect. Constrained Economic Analysis of Unintended Harm • 1. the use of anti-terrorist measures may also harm innocent persons unintentionally. innocent civilians as a side effect of an act aimed at protecting the lives of other civilians or soldiers? Answering this question through standard CBA requires one to compare the expected direct and indirect consequences of an action against terrorists with the consequences of inaction. which differs from one instance to another. Suppose that a general policy of torturing suspected terrorists under certain circumstances. 41–46. information that is valuable enough. which results in torturing 10 people a year. and that the ratio of 1:100 is large enough to justify the policy. it is not enough that the practice in general is justifiable. way to save these potential victims. less harmful. 143. body.148 E. even if actively/intentionally harming innocent people is not absolutely prohibited. Even if the practice of torture can be justified. See supra p. 149. 63–70. Presumably. Assume further that there is no other. the harmful effect does not provide the state with a reason for the action or an explanation thereto. in and of itself. including their expected effects on the 148. reduces the scope of terrorist activity and saves 1. or even knowingly kill. As discussed above. General Anti-terrorist activities often involve risking the life. the aim of the infringement is to achieve some concrete information. at 309–11.152 We submit that both the absolutist’s unqualified opposition to authorizing state officials to shoot down the airplane (endorsed by the German court) and a pure consequentialist CBA of such action are unsatisfactory. as our point of departure. Smith & Hogan Criminal Law 322 (11th ed. While such killing infringes a constraint. Id. the factual situation and the extent of the threat are typically not sufficiently clear to justify the taking of innocent lives. e. Sandler & Enders. state officials should be permitted—and even required—to shoot down an airplane carrying a few innocent passengers to prevent it from crashing into a dam or a nuclear plant and killing tens of thousands of people (and causing secondary environmental damage and other losses). in which it struck down a law authorizing the air force to shoot down aircrafts that are wielded as deadly weapons.. Supra note 42. This view conflicts with commonsense morality.151 The court noted that an assessment that the passengers are doomed anyway (because the terrorists plan to crash the aircraft into their target) would not change the outcome because human life and dignity enjoy the same constitutional protection regardless of the duration of an individual human being’s physical existence. at § 130. David Ormerod. Once again. Of Shipwrecked Sailors.g.the fight against terrorism 167 motivation of future terrorists and on demoralization.153 Contrary to the court’s depiction. such action does not treat the passengers as a means to save the lives of others. Michael Bohlander. it seems immoral to shoot down an airplane carrying 400 passengers to save the lives of 401 other innocent people. and prevailing legal norms. 152. 147.g. 158 (2006). Unborn Children.150 Standard economic analysis does not differentiate between active infliction of harm by the government on a particular group of innocent people and the harm suffered by an as of yet unspecified group of innocent people due to the terrorist activity and the government’s inaction. supra note 8. we will use the 2006 judgment of the German Constitutional Court. On the other hand. On the one hand. deontological ethics. The court added that the law is invalid because in the case of an aircraft hijacking. Killing the innocent passengers under these circumstances is merely a side effect of shooting down the airplane to save the lives of the intended victims. Id. this infringement is sometimes justified. at least if it is 150. e. . 2005). The court reasoned that killing innocent people for the sake of saving others violates basic human rights to life and human dignity. 70 J. L. See. See. Crim. 151.. at § 125–29. 153. Conjoined Twins and Hijacked Airplanes—Taking Human Life and the Defence of Necessity. e. one may also take into account the probability that the harmful side effect will materialize. an act that would harm one unknown person out of a group is identical to an act that would inflict the same harm on a specific person (since the result in both 154. Cf. Rights. Qualitatively. In other words. Proportionality and Force in International Law. 111 Ethics 219. As indicated. L. 1: Rules 49 (2005). See also. 221–23 (2001).. but this constraint is different from the one against inflicting intended harm. David McCarthy.154 One should ask whether the side effect is a proportional or reasonable price to pay for achieving the aim. . it must serve some legitimate aim. 87 Am. In the words of the First Additional Protocol of the Geneva Convention. In addition. For instance. there must be a reasonable proportion between the act’s expected benefit and its cost. in order for us to justify an act. supra note 71. which would be excessive in relation to the concrete and direct military advantage anticipated. both quantitatively and qualitatively.. an attack is prohibited if it is “expected to cause incidental loss of civilian life . When the probability that the action will inflict harm is sufficiently low. economics.g. Doing Away with Double Effect. even as a mere side effect. 95. Finally. it seems that the action would infringe a constraint only if the harm occurs. See. killing noncombatants as a mere side effect is justifiable only if the noncombatant deaths are proportional to the intended desirable consequences of bombing a terrorists’ camp.168 law. See also supra p. Customary International Law. Explanation. Jean-Marie Henckaerts & Louise Doswald-Beck. to justify the action. Article 51(5)(b). Judith Gail Gardam. 406–10 (1993). 155. In addition.”155 As in the case of intentionally inflicting harm. 208–12 (1997). J. supra note 40. the mere exposure to risk plausibly infringes a constraint. . Vol. an active infliction of foreseen (though unwanted) harm on some people is permissible only if this harm is inflicted to avoid sufficiently greater harm to others. Alison McIntyre. Cryer & Simester. and consequently the applicable threshold is less stringent. 391. unrelated to those deaths. e. 156. 107 Ethics 205. and morality expected that otherwise the passengers have a reasonable chance of survival. whereas when this probability is higher. Whereas from a consequentialist viewpoint.156 Related issues pertain to uncertainties over the identity of the persons who might be harmed as a result of the action. an act that unintentionally inflicts harm infringes a deontological constraint. Int’l. and Risks. one must show that its adverse side effect is unavoidable. here too one may require that the type of harm that the activity aims to preempt is not lexically inferior to the harm that it inflicts. at 34. First Protocol to the Geneva Conventions. .g. supra note 153. Priceless: On Knowing the Price of Everything and the Value of Nothing (2003) (arguing that the public is more likely to object to bear a risk which is faced by an identifiable community). p is the probability that the terrorists will successfully carry out their plan if no preemptive action is taken.the fight against terrorism 169 cases is harm to one person). Sanford H.. first. 64 Cal. y is the expected number of innocent people killed or severely wounded as a result of the preemptive action.. This function assumes that in determining the permissibility of the preemptive act.g. the passengers are expected to survive and that the government action will certainly kill the passengers and prevent the harm to others. Schelling. See Bohlander. For instance. and Ku and Ku′ are an additive and a multiplier threshold. Assume. Constructing the Threshold Function The following analysis takes the hijacked plane scenario as paradigmatic. L. Rev. 893–94 (1976). in Problems in Public Expenditure Analysis 127 (Samuel B. As indicated. 158. See.157 deontology may well distinguish between the two acts and find the latter more objectionable. e. L. represents the view that the threshold should be positively correlated with the magnitude of the risk q that the activity will result in killing persons. at 158 (describing such possible scenarios). Respect for Life and Regard for Rights in the Criminal Law. Charles Fried. Chase. The incorporation of the additive threshold Ku. Kadish. The last factor in this function. The Value of Life. may reflect the view that the action infringes a constraint even if no harm materializes. that absent the preventive measure.159 Under these assumptions. e. This assumption is relaxed in the following section. ed. Frank Ackerman & Lisa Heinzerling. q is the probability that the preemptive action will kill the passengers. merely exposing persons to the risk of unintended harm may infringe a constraint. .C. 1968). respectively. reflecting the constraint against unintended harm. Jr. The Life You Save May Be Your Own. only lost lives and severe physical harms to innocent people count. 871. See.. qyKu′.158 2.g. one may wish to divide the 157. one may use the following threshold function: (5) T = ( px – qy) – (Ku + qyKu′) where x is the expected number of people who will be killed or severely wounded as a result of the terrorist attack. T. 159. Rev. 82 Harv. in addition to the multiplier one. thus excluding the well-being of the terrorists. 1415 (1969). g. such that when the probability q that the action will indeed inflict harm. supra note 153.. of these considerations may. James A. 164–68 (1996). however. 579. Contrary to the German court’s ruling. Duties. Reeder. is sufficiently low. Vol. Morality. the prevailing view among English-speaking philosophers and jurists is that killing a person who is fated to die anyway. or most. as a side effect of saving others. 580 (2006). On Doing Good: The Right and the Wrong Way. A more complex function may differentiate between different innocent people according to their affinity to the terrorists. Bohlander. . Cf. Killing and Saving 58-63. where each harm is weighted according to its severity. 439. See. Function (5) disregards the nationality and other characteristics of the civilians involved. It excludes lesser bodily harms to innocent people. It can also consider any type of physical harm. economics. Michael Bohlander. and monetary losses. when the person is certainly doomed anyway (no one can help him)”).. damage to property. to save other threatened people). 79 J. Ku = 0. Killing Persons Who are Doomed It may be that the passengers and crew are likely to die irrespective of the preemptive action because the terrorists plan to crash the airplane into their target. All. and morality spectrum of risks into several categories and set different thresholds for each. one may use a more sophisticated function to assess the marginal net benefit of taking one infringing act rather than another. John P. such as its deterrent effect on future terrorist attacks. Jr. Abortion and the Sanctity of Human Life 12–25 (1975). In Extremis—Hijacked Airplanes. L. at 248–49 (discussing “the doomed victim”). at 302–04. It further excludes long-term effects of the preemptive action. id. “Collateral Damage” and the Limits of Criminal Law. along the lines discussed in the previous section. Frances M. Kamm. II: Rights. instead of making the choice between various permissible actions using standard CBA or lexical priorities between competing values. e. is permissible or at least less objectionable than killing a person who is not similarly doomed. Rev. Mortality. supra note 131.160 160. The threshold function need not exclude all of the above factors. 3. Montmarquet. Phil. Brody. and Status 54 (1996) (“killing someone who is under a threat of death may be better than killing someone who is not. at 158.170 law. 445–54 (1982) (discussing the permissibility of killing people who are already threatened. Baruch A. Moore. Crim. be considered when choosing among the deontologically permissible alternatives (including the alternative of doing nothing). Finally. A more 161. See also Sabine Michalowski. the British Court of Appeal authorized the separation of twins—a procedure which was known to cause the death of one of them—when otherwise both were expected to die within three to six months. at 321–22. in a way. See. peaceful death) and the time period by which death is accelerated. .. This function requires that the net benefit of shooting down the airplane will exceed a certain threshold Ku. [2001] Fam. victims of the terror attack. Sanctity of Life—Are Some Lives More Sacred than Others?. one may wish to consider such factors as qualitative differences between the inflicted death and the otherwise expected one (such as violent vs. the preemptive action will be permissible only if px – Ku > 0. 162. one may take into account the moral responsibility of the civilians who are harmed as a side effect of the antiterrorist measure. supra note 153. they acted negligently by ignoring warnings to avoid certain areas. Bohlander. 377 (2002). For example. In addition to the probability that the harmed people will die anyway. as opposed to letting them die. they may be significant in other contexts.162 4. a central ground of the court’s decision was that she was doomed to die anyway. at 196–97. in the famous case of the conjoined twins. according to the threshold function (6).). the threshold function may be modified to capture the judgment that the victims are doomed by adding variable r. to overcome the deontological constraint against actively/ intentionally killing innocent people.A.the fight against terrorism 171 In this case. 22 Legal Stud. Victims’ Moral Responsibility and Nationality In setting the pertinent thresholds. In one type of cases. at 1433–37 (discussing the relevance of “how one dies”).161 While these factors do not loom large in the context of a terrorist attack. a consequentialist would hold that (all else being equal) shooting down the airplane is justified even for the sake of saving one person on the ground. while the persons who might be harmed are themselves. Id.) (U. at 155–57. Ormerod.K. the probability that the passengers will survive absent the preventive act. Freid. 147 (C. In contrast. In Re A (Children) (Conjoined Twins: Surgical Separation). e. supra note 153.g. Despite the fact that the inflicted death shortened the lifespan of one of the twins by several months. Civ. It seems that ordinarily such faults should not substantially affect the size of the threshold. as follows: (6) T = ( px – rqy) – (Ku + rqyKu ′) In the extreme case in which it is certain that all passengers will die anyway (r = 0). 164. in particular ones that have airborne and long-range artillery capabilities. 165. while underestimating the risk to enemy civilians. 157–60.165 As far as deontological considerations go.163 Setting these difficulties aside. however. See Yaël Ronen. A related question. at 94–95. Trans. which we addressed above.164 Only when the expected victims of the military action are state nationals can one expect that their interests will be appropriately taken into account by decision-makers. state nationals are typically entitled to monetary compensation for their losses that result from a state military action. justify treating them as the “enemy. L. while the state must subject enemy civilians to as little harm as possible. it is often unclear whether the civilians cooperate with the terrorists willfully or are coerced to cooperate with them. They are. See supra pp.” Even when there is a close association between the terrorists and the civil population. A preliminary issue in the context of the fight against terrorism is that it is not always clear whether and to what extent a certain population is affiliated with the terrorists. is what types of willful activities should be considered as sufficient to deny a person from the protection afforded to “innocent persons” from inflicting intended harm. consider the case in which the persons who might be unintentionally harmed by the anti-terrorist measure cannot be blamed for willfully collaborating with the terrorists. Benvenisti. The fact that innocent civilians belong to the terrorists’ ethnic group does not. it is not required to take such precautions 163. 42 Vand. Armies. supra note 72. J. Avoid or Compensate? Liability for Incidental Injury to Civilians Inflicted During Armed Conflict. even unintentionally. whereas aliens are often denied such compensations. In addition. members of the terrorists’ national or ethnic group—the group whose interests (as perceived by the terrorists) the terrorists strive to further. and morality difficult issue is whether the government should distinguish between unintentionally harming enemy nationals and harming its own nationals. According to this view. . A typical scenario is the one in which terrorists hide among a civil population or launch their attacks from within a populated area. economics. some argue that the threshold that has to be met to justify unintended harm to state nationals (as in the hijacked plane scenario) should be substantially higher than the one applying to comparable harm of enemy civilians (as in many instances of targeted killings). (forthcoming). There may be significant second-order considerations for imposing particular restrictions on harming enemy civilians.172 law. often regard their own safety and the success of their military mission as paramount. in and of itself. 167 Neither does this position assign different values to people’s lives according to their nationality. Id. Fletcher. collective intention.166 This position does not attribute guilt to the enemy civilians. 170. Benvenisti. supra note 72. According to Benvenisti.168 Consequently. however. 60–63. 111 Yale L. 167. Such respect mandates that the state not target the latter and should strive to reduce the harms it inflicts on them.” since “imposing risks on [combatants] to protect enemy civilians means using them as mere tools for the benefit of others. but not a duty to actually risk themselves. at 89. “this does not preclude the moral duty of combatants to consider taking some risks to reduce the harm to enemy civilians. 169. While the premise accurately depicts the scope of the state’s deontological options or lack thereof.” Id. Assuming—as we do at this stage—that there is a constraint against unintentionally killing persons.169 This conclusion goes too far. See supra pp. According to this stance. Rather. it rests on a distinction between the state’s duty to ensure and protect the rights of its own nationals and its lesser duty to respect enemy civilians. supra note 72. let alone enemy civilians. 1499 (2002). at 90. a state’s duty toward its own people takes precedence over its duty toward enemy civilians. at 89. including its soldiers. including its soldiers.the fight against terrorism 173 that would risk the lives of its own nationals. the expected net benefit of the act (primarily in terms of lives saved) must surpass a certain threshold. it is argued that imposing risks on combatants is justified only to the extent that the risk is necessary to secure the interests of the state or the combatants but not to protect the lives of enemy civilians.J. the alleged conclusion refers to deontological constraints. and collective guilt all have a sound grounding in Western culture see George P. does not yield the conclusion that a state is not subject to constraints when dealing with enemy civilians. 168. at 87–90. 166. this constraint holds regardless of the lack of special duties of the sort characterizing a state’s relationships toward its people. in violation of the principle of individuality. Benvenisti. The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt. . To justify unintended harming of enemy civilians. which rejects collective responsibility and states that individuals are responsible only for their own actions.170 There is no reason to assume that the duty to protect the lives of state nationals. is lexically superior to the constraint against actively inflicting harm on aliens. For a view that the ideas of collective action. The sound premise that a state is under a duty to further the interests of its people and that it bears no such duty (or bears drastically lesser duties) toward aliens. At this stage. 172. one should evaluate whether the infringement of the constraint against intentional harm is permissible given the relevant threshold. a deontologist decision-maker can straightforwardly set a lower threshold when the foreseen. This may not be true when enemy civilians become subject to the state’s effective control. e. the adverse side effect is taken into account in calculating the activity’s net benefit as one of its costs but not as an infringement of a constraint. the Israeli Supreme Court decision in Public Comm. See also Walzer.172 F. economics. we may add variables to denote the distinction between the intended harm yi (assuming it is certain). an act infringes both the constraint against actively/intentionally harming people and the constraint against actively. It should thus be subject to a two-tier assessment. as prisoners of war. Government of Israel. See supra pp. that will occur in probability qu: (7) T = px – (quyu + yi) – (Ki + yiKi ′) 171.g. The threshold function employed at this first stage should embody the distinction between intended harm and additional adverse side effects. unlike the consequentialist who assesses costs and benefits impartially.171 At the same time.174 law. See. though unintentionally. supra note 72. against Torture in Israel v. rather than its own people. supra note 43. Measures Involving Both Intended and Unintended Harm • Anti-terror measures often inflict both intended and unintended harm. even unintentionally. whenever doing so is necessary to protect its own interests without killing. First. In the case of targeted killings. or “protected persons” in occupied territories. harmful side effects. 41–48. and psychological traumas suffered by innocent people. . In such cases. harming (other) people. Paradigmatically. supra note 98. at § 46 (“the state’s duty to protect the lives of its soldiers and civilians must be balanced against its duty to protect the lives of innocent civilians harmed during attacks on terrorists”). unintended victims of an anti-terrorist action are enemy civilians. at 88. targeting a terrorist may also have unavoidable. enemy civilians. and the prospect of unintended harms yu. and morality The state may thus be required to risk the lives of its combatants. these side effects may include deaths. Cf. at 151 (“soldiers are supposed to accept (some) risks in order to save [enemy] civilian lives”). For instance. Benvenisti. injuries.. based on agent-relative considerations. the fight against terrorism 175 where Ki. Two central characteristics of this fight lend credence to this notion: the potentially catastrophic consequences of failing to win the struggle and the widespread violations of moral constraints and legal norms by terrorists. while the target of the intended harm may be blameworthy. Conclusion Standard CBA of the fight against terrorism rests on the notion that the end of maximizing aggregate human welfare justifies all means. Note that this second stage does not necessarily collapse into the first. respectively. intended harms and unintended ones. This possibility is a plausible one since typically. the action should then be subject to an additional review. However. Actions and inactions. • G. the action may again be permissible as far as its intended consequences are concerned. and the action is required to preempt an imminent terror attack. it does not differentiate between harms that the state inflicts by implementing various anti-terrorist measures and those that (other) innocent persons will suffer as a result of unthwarted terrorist attacks. The action may pass the first scrutiny but not the second when the threshold for infringing the constraint against inflicting intended harm is lower than that of infringing the other constraint (Ki > Ku). even if Ki > Ku. In addition. representing the judgment that the action infringes the constraint against inflicting intended harm. are all accorded similar weight in the moral and legal calculus. if the expected unintended harm is substantially greater that the expected intended harm (qu yu > yi). such as the expectation (and fear) of reciprocity. and Ki′ are an additive and a multiplier threshold. If the infliction of the intended harm is permissible. Standard CBA views inflicting harm on innocent persons as a “cost” that the state should minimize. . and Ku′ reflect the threshold for the constraint against exposing persons to the risk of unintended harm. Second-order considerations that often support respecting moral constraints and obeying the restraints imposed by the laws of war. but impermissible due to the infringement of the constraint against inflicting unintended harm. seem irrelevant in the context of the fight against terrorism. those who suffer the unintended harm are innocent persons. which addresses the infringement of the constraint against inflicting unintended harm: (8) T = px – (quyu + yi) – (Ku + quyuKu′) The parameters Ku. and so forth.176 law. which include both protecting the lives of its citizens and respecting deontological constraints. the integration of constraints does not entail ignoring social welfare. At the same time. the purpose of inflicting harm. as it requires one to take into account various pertinent distinctions. economics. which aims at maximizing welfare. such as between action and inaction. a democracy is justified in infringing the relevant constraints. . It is in this sense that a constrained economic analysis of the fight against terrorism reflects the deepest commitment to the basic values of a democratic society. Constrained CBA operationalizes the judgment that when enough good or bad consequences are at stake. including the state’s duty to protect the lives of its citizens and promote their welfare. intended harm and unintended harm. The incorporation of constraints makes the consideration of all relevant factors much more nuanced. and morality This chapter sought to demonstrate that an economic approach. can and should incorporate deontological constraints. supra note 1. 2000). Freedom of Speech (2d ed. 177 .. jurists.• seven Freedom of Speech • A. Tribe. Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture. The literature on freedom of speech is abundant. 1988). general monographs and collections of essays. Barendt. Laurence H. e. we shall mostly sidestep the important institutional aspects of speech regulation. e. The System of Freedom of Expression (1971).g. Emerson.2 This chapter neither purports to resolve the numerous disputes revolving around the regulation of speech nor to fully reflect their complexity. or civil) and between prior restraints of speech and after-the-fact sanctions or remedies. Vol. coupled with specific illustrations. often enjoying a special status. As do other chapters of this book. should suffice to demonstrate how a deontologically constrained CBA of freedom of speech may contribute to the normative and policy analysis of this important issue.1 and the legal doctrine. e. Freedom of Speech. American Constitutional Law 785– 1061 (2d ed. 2005). For comparative accounts. Thomas I. General freedom of speech is considered a basic human right. including the appropriate scope of judicial review of legislative and administrative discretion. Eric Barendt.. Frederick Schauer. and economists nevertheless constantly debate its justifications and scope. 2: Doctrine (Larry Alexander ed. For useful. this one strives to establish that moderate deontology best accounts for the current doctrine (with American law as our central 1.g. 2005). Stone et al. We shall similarly avoid discussing the sometimes crucial choice between various sanctions and remedies (criminal. Hate Speech in Constitutional Jurisprudence: A Comparative Analysis. In particular. A relatively abstract discussion. particularly in the United States. 1: Foundations. 2. Michel Rosenfeld.g.. see. 2003). see. Philosophers... in European and US Constitutionalism 49 (Georg Nolte ed. Geoffrey R. 24 Cardozo L. 1523 (2003). is rich and complex. Free Speech: A Philosophical Enquiry (1982). see. administrative. The First Amendment (2d ed. Rev. For a detailed analysis of American law. Fredrick Schauer. Vol. focusing on American law. Speech] (distinguishing between expressions deserving of free speech protection and “situation-altering utterances”). Doctrinal Background Freedom of speech is recognized as a fundamental human right in both domestic bills of rights and international human rights conventions. See Frederick Schauer. 265. the warning of a criminal to escape from the police. economics. The two techniques are often employed in tandem. authorizing decision-makers to curtail free speech when necessary to protect compelling interests. Kent Greenawalt. speech is not accorded unqualified protection. Section C critically discusses the most sophisticated economic analysis of free speech to date. Speech. even where the prohibition on curtailing free speech is expressed in absolute terms (as in the First Amendment of the United States Constitution). Categories and the First Amendment: A Play in Three Acts. The lines drawn between protected and unprotected speech vary from one legal system to another and are often contested. Rev. Kent Greenawalt. offered by Richard Posner. and initiation of a restraint of trade are not constitutionally protected. Section D argues that while freedom of expression is expected to promote good outcomes. and the provocation of racial hatred are similarly unprotected in some systems.3 Obscenity. and morality example) and that a constrained CBA fruitfully highlights the pertinent normative factors and their interrelations. in Eternally Vigilant: Free Speech in the Modern Era 96 (Lee C. • B. . blackmail. Accordingly. and the Uses of Language 57–71 (1989) [hereinafter Greenawalt. 3. “Clear and Present Danger” and Criminal Speech. Crime. Section E then demonstrates how the integration of a deontological constraint against suppression of free speech with CBA improves the analysis of this subject both descriptively and normatively. 34 Vand.. comparative overview of the legal doctrine. Yet. Bollinger & Geoffrey R. 2002) [hereinafter Greenawalt. Legal systems use two central techniques to delimit the constitutional protection of free speech: exclusion of some types of speech from the ambit of protection. 267–82 (1981). and incorporation of a limitation clause. Section B of this chapter provides a brief. Criminal Speech]. a satisfactory justification for this freedom must include a deontological element. there is broad consensus among legal systems that such verbal communications as involved in criminal conspiracy. sexual harassment. L. Stone eds.178 law. 795 (1993) (the actor’s intent and the audience’s understanding). Constitutional Law of Canada 36–10. 6. Rev. under Section 1. L. and ballet are all forms of expressions despite the absence of verbal communication. R.M.g.. alarm.. often complementary technique of a limitation clause is employed. and the government’s reasons for regulating it. 5 of the Basic Law for the Federal Republic of Germany.5 The other. Chi. 391 U. Stud. such symbolic acts do merit protection. Dean Alfange. 7. Paul. Free Speech and Symbolic Conduct: The Draft-Card Burning Case. Lawmakers have to decide what human activities are to be considered “speech” or “expression. 1968 Sup. 11 Oxford J. Shaman. See. . e.4 At least under some circumstances. Rev. activities that do not involve verbal or linguistic utterances. Legal. See. 218–21. and to inform herself from generally accessible sources. Words. infra pp. Rev. v. the way the action is perceived by its audience. and artistic. which may or may not have some expressive purpose. privacy. 5. yet that these rights may be limited to the extent necessary to protect the young and the right to personal honor. See also infra pp. supra note 3. for example. a draft card) or appearing naked in public. 303. 303 (1991) (the actor’s intent).g. by the Canadian Charter of Rights and Freedoms. Free Speech and Speaker’s Intent. 505 U. Jr. See also the reference to “Track Two” analysis below. commercial. and prevention of imminent violence. Comm. L. The Theory of Low-Value Speech. City of St.. sexually explicit material and commercial advertising enjoy lesser protection than other categories of speech under American law. Sunstein. Cass R. Caste.S.”6 Competing values that may justify setting limits to free speech include national security. such as political. O’Brien.U.A. 48 S.” While it is quite obvious that painting. or allegedly expressive. Potential criteria for classifying such actions as protected speech are the actor’s intent. e. Jeffrey M. at 282–96. Free Expression and Personal Identification. Conduct. 377 (1992) (ruling that a statute proscribing the placing of a burning cross which is known to arouse anger. it is more difficult to categorize such actions as burning an object (a flag. photography. 2006).” Yet. or resentment in others on the basis of race or similar bases is content-based and thus unconstitutional under the First Amendment). Joseph Raz. Section 2 of the charter provides that everyone has the freedom of “opinion and expression.7 In the same vein.S.V. and infra pp. which provides that every person shall have the right freely to express herself in speech. 8. Larry Alexander. 38-2–38-7 (5th ed. Different balancing formulae are often set for different categories of speech. 21 (1995) (government’s reasons for regulation). 213–18. 60 U. 12 Const. see generally Schauer. 297 (1995). See also Art. 1 (criticizing United States v. On categorization of speech types. this and other fundamental freedoms are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 367 (1968)). writing and pictures.8 4. 218–21. Ct.freedom of speech 179 A complementary question of delineation pertains to expressive. 2 Peter Hogg. 713. Note that although restrictions of the latter type are apparently viewpoint-neutral.. The latter phrase encompasses both “expressions” that lie outside of free speech doctrine (such as criminal conspiracy or a political murder) and conduct that lies at the heart of First Amendment law. . though constantly contested. Protecting free speech against private suppression often requires the state to take positive measures. Neither will we discuss the extent to which the public should have access to information held by the government that may be conducive for an open public debate. 403 U.S. and morality The very distinction between excluding some types of expressions and activities from the ambit of free speech protection and using limitation clauses or some balancing techniques is not always clear. They restrict certain expressions because their content is thought to be harmful or because it is believed that the very discussion of certain issues in public is undesirable. New York Times v. we shall neither discuss private curtailment nor inquire whether and to what extent the government should ensure equal access to expressive media. it is useful to further subdivide it..180 law. Since our discussion will focus on public suppression of speech. Cf. supra note 3. Public suppression includes prohibitions imposed by the government. Examples of private suppressions include an employer who forbids the expression of certain political views in the workplace or a shopping center that forbids picketing on its premises. One distinction is between private and public suppression of speech. See. U. by foreclosing open debate on certain issues. Minnesota. The following taxonomy. at 284–85.g. 716 (1931).S. they tend to shelter existing policies and practices. economics. A related distinction is thus between the government refraining from curtailing speech and taking positive steps to protect this freedom.10 9. 283 U. To get a better view of the vast landscape of free speech doctrine.S. Another basic distinction is between content-based and content-neutral restrictions of speech. is nevertheless methodologically valuable. 726–27 (1971).9 Put differently. Content-based restrictions are directed at the communicative impact of speech. 697. including local government. when its regulation is considered constitutional (such as accounts of troop movements). e. Near v. This vagueness is reflected in the way the phrases “protected speech” and “unprotected speech” are used in the United States. 10. Schauer. the term “unprotected speech” is used to denote both cases in which a regulation does not infringe on a person’s freedom of speech and cases in which it infringes on this freedom justifiably. defamation. e. Roughly. persuades. 11. Perry Education Ass’n v. and verbal sexual harassment are all instances of one-step harm. the ultimate harm is brought about in two steps. the very expression causes the harm. the borderline between one. or manner of expression due to its noncommunicative impacts. or manner of expression are known as “Track Two. 318 (1990). instigating violence. Eichman. Focusing on content-based regulation. In such cases. 14. and traffic congestion. they are deemed constitutional only if they serve an exceptionally important purpose and are the minimal means necessary to attain this purpose. or otherwise advocating unlawful actions are paradigmatic. which lies at the core of freedom of speech doctrine. 460 U. harm may be caused in one step or two. or provides useful information to people who might then do harmful things. and even when it is clear. litter. See. different legal systems take very different positions. Such impacts may include excessive noise in residential neighborhoods. the same speech may cause both types of harms.g. place. 12. content-based restrictions of speech are strictly scrutinized. Calling for the overthrow of the government..12 Following Laurence Tribe. Often. supra note 2. at 789–804. Perry Local Educators’ Ass’n.” while content-neutral regulations of the time. even if it does not affect anybody’s behavior. Larry Alexander. 496 U. 13. . Subject to these special contexts. 37.”13 Another useful distinction applies to content-based restrictions and focuses on how the speech is expected to cause harm. 303 (1998). Tribe. These restrictions are subject to judicial review but are likely to be upheld if they are at all reasonable. Id.and two-steps harms is sometimes blurred. at 798–99. content-based restrictions and their judicial review are commonly labeled “Track One. however.S. 977–1010. Revelation of secrets or intimate information. at 791. Under American law. United States v. 310. supra note 2. such as in public schools and in the army.14 Admittedly. Freedom of Speech. These differences may be illuminated by briefly describing two central types of such regulations: prohibitions against incitement to violence or other unlawful conduct and the suppression of hate speech. Tribe. 832–41.11 Content-neutral restrictions typically regulate the place. timing. The speaker incites. 45 (1983) (“For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”).freedom of speech 181 Such restrictions are nevertheless deemed acceptable in some contexts. in 2 Encyclopedia of Applied Ethics 299.S. See.”18 While the test of “clear and present danger” sounds extremely protective of free speech. supra note 2. 18. Regina v. Keegstra. . On this Article. 47. Article 19(2) of the Convention provides that “everyone shall have the right to freedom of expression. hostility or violence shall be prohibited by law. United States (1919).182 law. In the typical category of cases where the harm is expected in two steps—incitement to violence—the central element that determines the legitimacy of the regulation is the risk of harm. . supra note 6. and its incompatibility with the constitutional protection afforded to freedom of speech in some legal systems. “[t]he question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. determining the constitutionality of silencing incitements to violence or hatred requires a case-bycase assessment of the expected consequences of the government’s action or inaction. 4 of the International Convention on the Elimination of All forms of Racial Discrimination (1965). under American constitutional law. racial or religious hatred that constitutes incitement to discrimination.” and Article 20(2) adds that “[a]ny advocacy of national.. Article 20(1) provides that “[a]ny propaganda for war shall be prohibited by law. e. religious.S. See generally Hogg. Rosenfeld. [may] be subject to certain restrictions.C. Convention on the Elimination of all Forms of Racial Discrimination 43–53 (2d ed.” and Article 19(3) sets forth a general limitation clause (“the exercise of the right . the German courts have validated the repression of hate speech against ethnic and other groups. but these shall only be such as are provided by law and are necessary”).g. economics. one need not assess the specific consequences of suppressing such expressions in any particular circumstances. 697. it was criticized for being employed to legitimize 15. 16. Schenck v. at 43-1–43-12. United States. Many national legal systems follow in the footsteps of the international conventions.17 In contrast. at 1548–54. The U. 17. 52 (1919). as expressed by Justice Holmes in Schenck v. 1980).16 Similarly.15 According to this approach. Art. 249 U.R. or ethnic groups. see Natan Lerner.” Other international conventions carry the same message. and morality The 1966 United Nations Covenant on Civil and Political Rights not only allows states to proscribe incitement to violence but actually requires them to do so. The Canadian Supreme Court held constitutional a statute criminalizing the willful promotion of hatred against racial. .N. However. According to the old doctrine. [1990] 3 S. its legislative history. 397. made a speech in a KKK gathering. 23.” and obscenity..S. 21..20 It held that proscribing “advocacy of the use of force or of law violation” is unconstitutional “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action..V.” The speech was filmed by a television reporter invited to the meeting and was later broadcasted.”24 Accordingly. holding that the statute was unconstitutional.26 19.A. Ohio (1969).22 The scope of free speech protection is hence considerably broader in the United States than in other liberal democracies. Under American law. supra note 3. Tribe. supra note 2. situations of “captive audience. Smith. 505 U. 916 (1978). . Rev. violence.S.” The Supreme Court reversed the conviction. See. 70 Cal. e. Texas v. 414 (1989) (holding that flag burning cannot be criminalized).S.A. it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. 444 (1969).S.23 This difference is also reflected in the related issue of offensiveness. sabotage. Brandenburg was convicted under a statute that prohibited “advocat[ing] .2d 1197 (7th Cir. a Ku Klux Klan leader. Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger. e.V. in the famous case of the march of neo-Nazis in Skokie. 22. it’s possible that there might have to be some revengeance taken. the duty. L. 578 F. See. 24. which is still in force. the Supreme Court formulated a new test that is even more stringently protective of free speech.. Crime Speech. 505 U.S.25 Narrow exceptions to this rule are recognized in such cases as individual defamation. and said that if the authorities will continue “to suppress the white. 395 U. See also R. 377 (described in supra note 5). supra note 2. Martin H. Brandenburg. denied. at 447. 904–28. results in an almost absolute protection of the right to publicly advocate violence or other violation of the law. offensiveness is not a sufficient basis for curtailing speech.g. Caucasian race.”21 This test. Greenawalt. or propriety of crime. 377 (described supra note 5). Johnson (1989).g. the court held that the high intensity of the offense to the feelings of Holocaust survivors was not sufficient to prohibit the march. “[i]f there is a bedrock principle underlying the First Amendment. Id. or unlawful methods of terrorism as a means of accomplishing industrial or political reform. 20. Redish. in Brandenburg v. 1978).freedom of speech 183 far-reaching restrictions of free speech. . where a large wooden cross was burned. As the Supreme Court made clear in Texas v. even when doing so entails considerable risks to the targets of the speech and to the peaceful coexistence of different parts of society. 26. cert. See Collin v. 439 U. . supra note 2. at 849–56. 491 U. He spoke in a derogatory manner about “niggers” and Jews. necessity. 1166 (1982).19 Eventually. Schauer. See Rosenfeld. 1159. See also R. 25. Johnson. Illinois. Eric Rasmusen. Behav. 28. Daniel A. at 6. have called for the deregulation of both. regulation may be necessary to avoid adverse selection of ideas. The Economics of Desecration: Flag Burning and Related Activities... Hugo M. Rev.g. which in turn reflects the particular social. supra note 29.g.32 In the same vein. 1.” from an economic point of view. 29. and political environment. e. See. Cost-Benefit Analysis of Free Speech and Its Critique • A considerable body of literature analyzes freedom of expression.30 Others point to the special characteristics of ideas and symbols as public goods. & Econ. which absent regulation might be underproduced due to their positive externalities. the actual practice and court rulings are quite at odds with the legislative phrasing and judicial rhetoric. pointing to similarities between the market for goods and the market for ideas. e.31 At the same time. See. supra notes 18. Rev. or the “speech market. 10 Am. it is argued that some speech should be limited due to its negative externalities. 217 (1992). Mialon & Rubin. 6–15 (2008). Free Speech without Romance: Public Choice and the First Amendment. whereas in Germany the limitation on hate speech is grounded in respect for human dignity. 105 Harv. L. Rosenfeld. The Economics of the Bill of Rights. economics. since listeners often find it difficult to evaluate the quality of ideas. & Org. Legal Stud. 2007). supra note 2. The Market for Goods and the Market for Ideas. Farber. e. . 19 and accompanying text. Econ. Economic Analysis of Law 727–43 (7th ed. Coase. see Richard A. 554 (1991).33 Most notably. and morality In contrast. cultural.H. Freedom of Speech vs. 245 (1998).28 C. other western democracies consider offensiveness a sufficient basis for curtailing speech. 27 J. mainly when the expression is directed at minorities. Mialon & Paul H. Albert Breton & Ronald Wintrobe. Rubin.29 Some economists. Rev. At times.g. R. See.184 law. 32. 33. In Canada.27 It should be noted that the actual protection of free speech in any country depends not only on the legal doctrine but also on how the courts interpret and implement it. 30. L. Posner. this approach is founded on the values of multiculturalism and group-regarding equality.. 31. 64 Am. Econ. For an overview of the literature. Richard Posner has proposed a formula for an economic 27. 17 J. Papers & Proceedings 384 (1974). Efficient Regulation in Markets for Ideas. Free Speech. supra note 29. In this formula—which peculiarly sets the necessary conditions for allowing speech.g. one year) discount factor for future harms. scientific. See Posner. Rev. 36. or other) benefit of the challenged speech. Frontiers. at 85. Posner. Posner. and A – the administrative costs of the regulation. Frontiers]. Richard A.. 745 (2002).freedom of speech 185 evaluation of any regulation banning free speech. aesthetic. Cf. Posner. d – some perperiod (e. at 9–12. Just as the formula takes into account any benefit. a speech should be allowed if and only if: (1) B ≥ pH +O − A (1 + d )n where B is the total (social. supra note 34. as in the case where fringe presidential candidates 34..37 B may even be negative. supra note 34. Posner subsequently conceded that the regulation’s purposes and motivation may be instrumentally important for assessing its consequences. scientific. so it takes into account any harm. 37. rather than for justifying its repression—B is presumably measured according to people’s preferences and not by any objective assessment of the intrinsic value of speech. H – the speech’s expected harm. Free Speech. supra note 34.g. but applies the same formula to these cases as well. 20 Suffolk U. O (for offensiveness) – the disutility experienced by disinterested people from merely being cognizant of the speech (e. Frontiers. L. Richard A. 1 (1986) [hereinafter Posner.34 According to Posner’s formula. The formula intentionally disregards the government’s motivation in suppressing any particular speech. Posner. Posner. infra pp. 35. Rasmusen. Frontiers of Legal Theory 62 (2001) [hereinafter Posner. supra note 34. weighted by its probability and discounted for its futurity. L. Frontiers. Posner rationalizes the dissimilar judicial attitude to different categories of speech on the basis of their different characteristics in terms of supply. supra note 34. Posner. Free Speech]. demand. 218–21. probability. Richard A. . Rev.35 This benefit is compared to the speech’s harm. at 19–24. from knowing that pornography is being sold or atheism is being propagated). Pragmatism Versus Purposivism in First Amendment Analysis. n – the number of periods between the time that the speech takes place and the harm from it materializes. and externalities. Posner separately discusses cases in which B = 0. The following analysis focuses on Posner’s 2001 formula. p – the probability that the harm will actually be materialized if the speech is allowed. or artistic). at 70. Free Speech in an Economic Perspective. whatever its kind. Posner. or chronological remoteness. at 74–75. 737. 54 Stan.36 It also deliberately rejects any categorization of types of speech (such as political. at 511–12. Id. 499. supra note 34. . Frontiers. Rev. 108–16. economics. 43. 40. at 8. Hammer. at 512–14.42 argue that while such values as free speech and public safety are comparable. supra note 42. thus reducing the time available for frontrunners to present their plans. Free Speech.41 Critics further point to the inherent limitations of abstract modeling. U. Posner. 514–15 (1988).” as it cannot use market prices to guide the analysis. 108–16. 693. 508–11. Posner. we join those who reject Posner’s assertion that—unlike “the moral approach” to freedom of speech.39 The offensiveness of any speech is assumed to be immediate and certain. supra note 34. Hammer. 514. 42. Posner proposed to address (some of) the difficulties of implementing a CBA of freedom of speech by explicitly including in the formula a variable E (for error). which are more valuable to the audience. 45. which he portrays as “spongy and arbitrary”—his analysis “skirts 38. they are incommensurable. Posner does not distinguish between the costs inflicted on people who are directly affected by a speech and the “costs” to disinterested people who merely read or hear about its existence (“a cost is a cost”).40 The economic analysis of free speech has been criticized for not being truly “economic.43 and claim that the discontinuity of outcomes of protecting/curtailing free speech undermines the possibility of trade-off between the formula’s variables. 24–29. See supra pp. 21 Ga. 44. 715–19 (2005). see generally supra pp. at 68–69. Economic Analysis of Freedom of Expression. yet he believes—and we share his belief—that the formula can serve as a fruitful way of framing and thinking about the issue. denoting the legal-error costs incurred in trying to distinguish between valuable and invaluable information.44 Posner concedes that employing his formula faces formidable difficulties due to the indeterminacies characterizing the field. supra note 34. Frontiers. 87 Mich.38 Like other economists. 46. Id. Free Speech and the “Acid Bath”: An Evaluation and Critique of Judge Richard Posner’s Economic Interpretation of the First Amendment. On the distinction between incomparability and incommensurability.46 At the same time. See Posner. Note. and morality participate in a televised debate. 39. at 70. Peter J. In an earlier contribution. St.186 law. at 68.45 We also share Posner’s implied assumption that the problems of incommensurability and discontinuity do not render CBA of constitutional issues impossible or fruitless. Michael Rushton. 41. at 69. Rev. L. L. Id. and thus sets no constraint on the state’s power to limit them.. See Hammer. . concurring) (cautioning against the dangers of “letting judges play art critic”). supra note 49. 48. 445. 904 F. respectively.51 Furthermore. 780–82. Miller v. Freedom of Speech and Racism.52 For example. Larry Alexander. and liberty is incompatible with the common perception of freedom of speech as a universal. Rev. 52. Richard Posner. or desirability. 53 Stan. regulators must not silence any speech based on their assessment of its value. See Hammer. See also infra pp. basic human right (rather than merely a derivative status). Additional critiques leveled against Posner’s analysis are that courts are not institutionally competent to conduct CBA. merit. supra note 50. Cf. Posner. supra note 42. Not a Suicide Pact: The Constitution in a Time of National Emergency 113 (2006). at 517–28 (challenging the proposition that localities should be afforded greater authority to suppress speech than the federal government and the claim that externality analysis can guide government policies towards the regulation of speech). 180. 767. supra note 42. is that it requires policy-makers (as well as courts reviewing legislation and administrative policies and actions) to assess the expected benefit of expressions B. at 133–34. 8 Cardozo L. supra note 34. Cf. 1098 (7th Cir.50 From a deontological point of view.freedom of speech 187 contentious moral and ideological issues. supra pp. The First Amendment’s Purpose. Is There a Right of Freedom of Expression? 11–12 (2005) (describing evaluative neutrality as “the core of any conception of freedom of expression”).48 A conspicuous difficulty of Posner’s formula. 1990) (Posner J. Posner’s analysis does not attribute any priority to people’s freedom of expression and freedom of access to information. this position is likely to result in underprotection of free speech. 218–21. and that CBA tarnishes First Amendment’s unique symbolic status. This disregard for the intrinsic value of dignity. at 531–32. 49. 105–08. 458 (1987). Frontiers. Rev. at least insofar as it strives to interpret and rationalize extant legal norms. The critique also targeted specific conclusions Posner derived from his general analysis. See id. 832 (2001) (sharply criticizing the suggestion that speech may be curtailed whenever “its harmful consequences are thought to outweigh its expressive value”). Jed Rubenfeld.49 Such assessment is incompatible with the basic notion of evaluative neutrality underlying the protection of free speech in liberal democracies.”47 Economic analysis is as valueladen and potentially as manipulable as other normative analyses. two additional inadequacies of Posner’s formula are the absence of any constraint against intentionally/ actively suppressing free speech and its nondifferential consideration of any cost inflicted by any speech.2d 1081. autonomy. L. 50. at 528–30 and 533–34. David Kretzmer. According to this notion. at 62–63. whenever a 47. Cf. 51. Posner. Alexander. Civil City of South Bend. truth. 206–10. Posner justifies the silencing of some speech (e. improbable. Posner resorts to second-order and institutional considerations.56 To avoid the troubling outcome of underprotection of free speech. then even a small. Cf. 54. Schenck. 395 U. This is even more conspicuous in Posner’s earlier analysis: Posner. See infra pp. at 70. Inter alia.. the West generally .”54 The concern that Posner’s formula would result in underprotection of free speech is exacerbated by its unqualified consideration of any cost of any speech. at 68–69.” Such viewpoints may thus be considered as “off the agenda” of fruitful debate. and modernity in general has no redeeming social value. and the modest limitation of their expression due to induced self censorship resulting from FBI surveillance is therefore legitimate). 57. . Free Speech. subject only to the administrative costs of such suppression. supra pp. at 52. beyond the loss of benefit they (and society at large) expect to derive from the speech.57 In line with at 113 (suggesting that “advocacy of a holy war against the United States. Posner. 53. especially in the United States. magnitude. 24–27.”53 or only to prevent “clear and present danger” of “substantive evils. supra note 34. 249 U. at 24–29 (discussing the various sources of errors in estimating the costs and benefits of speech). it gives full weight to the disinterested feelings/preferences of people annoyed by the mere knowledge of the speech. Finally. and the way in which it is brought about.188 law. Frontiers. they are not inevitable features of CBA of freedom of speech. while some of these weaknesses characterize Posner’s formula. regardless of its type. particularly the difficulties of estimating the costs and benefits of free speech. . supra note 34. . Western values. Brandenburg.S. According to these norms. supra note 34. probability. focusing on the interests of the audience. This is a far cry from currently prevailing moral and legal norms. the formula inconsistently disregards the disinterested feelings/preferences of people annoyed by the mere knowledge of limitations being imposed on free speech. Posner. Frontiers. 55.g. advocacy of unlawful conduct may be silenced only if it is likely to produce “imminent lawless action. Admittedly. messages delivered by fringe presidential candidates) to facilitate the delivery of more valuable information (the messages of front-runners).S. and morality certain speech has no benefit or a negative benefit (B ≤ 0). and chronologically remote harm would suffice to warrant its suppression. at 447. economics.55 At the same time. The formula also ignores the very frustration experienced by people who are silenced. 56. chronological remoteness. See supra pp. if ever. Epstein. infra pp. Indeed. thus require one to modify the standard CBA of free speech. Speech. supra note 34. there seems to be a widespread intuition that there is an important difference between curtailment of free speech as a regrettable side effect of attaining a desirable outcome (such as preventing traffic congestion) and measures aiming at silencing specific views. . at 71. and the Politics of Distrust. L. 6 J. The incorporation of such a constraint would not overcome other difficulties inherent in standard economic analysis. such an extreme position rests on very questionable assumptions. as well as reaching intuitively more acceptable conclusions. 58. See also Ronald H. The Constraint Against Suppressing Free Speech Standard CBA of free speech presupposes that limitations on the power of government to regulate free speech rest on consequentialist justifications. 30–32. Coase. primarily by incorporating a deontological constraint against suppressing free speech. Rev. and hardly contributes to clarifying the relevant normative dilemmas. 60. Frontiers. many of the theories of free speech focus on its desirable outcomes. regulate speech. However. taking these epistemological and institutional arguments to the extreme. In the present context. See supra pp. 180–81.58 he approves of restrictions of freedom of speech only if it may be shown “with some degree of confidence” that the benefits of the restrictions exceed their costs. Richard A. See. 213–18. Id. Advertising and Free Speech. at 75 (rejecting the notion that the government may be trusted in some spheres more than in others. Chi. 59 U. he declares: “The government cannot be trusted. Posner’s analysis is also incompatible with both deontology and commonsense morality in its disregard of the motivation underlying the regulation.g. determining the political.60 Attaining a better grasp of the pertinent normative factors and legal issues. one may conclude that the state should rarely. scientific or aesthetic value of an expression (B) by aggregating people’s preferences seems inappropriate even from a consequentialist point of view. 218–21. 11–18. Posner. 59. • D. 61. period”). is likely to lead to underprotection of free speech when government intervention is necessary to actively protect this freedom and to underregulation in other instances.freedom of speech 189 his general distrust of the government. such as the determination of the goodness of outcomes according to people’s preferences. e.. Property.59 Indeed. Contrary to Posner’s analysis. infra pp. 41 (1992). 1 (1977). Legal Stud.61 The next section establishes that such a constraint is indeed warranted. Solum. supra note 50. See also Lee C. 521. 68. Press. L.M. id. see. 1977 A. U. e. The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986). Some of them are relevant to public life whereas others pertain to both public and private spheres. See also Vincent Blasi. at 72–77. 83 Nw.64 development of independent judgment and personal autonomy. 69. T. Pa. L. see. and yet others on the interests of people who are neither speakers nor listeners.g. Found.. supra note 63. 1991). Chi. exposure and deterrence of abuses of authority. . e.B. On the different interests involved in freedom of speech.. Rev. supra note 65 (individual self-realization). such as liberal democracy or individual autonomy. Some theories of freedom of speech are pluralistic in the sense that they view this freedom as promoting some or all of these goods. 68–72 (1989). Pitt. L. and perhaps even regardless of its effect on human well-being. Strauss. see also Lawrence Byard Solum. supra note 66 (liberal democracy). 53 U. at 128–30. at 136–46. The Checking Value in First Amendment Theory. supra note 50. Rev. Res. Bollinger. Alexander.. 63. economics. 520–28 (1979).65 facilitation of liberal democracy. truth discovery. 66.66 and the promotion of tolerance. As different categories of speech vary in their contribution to the promotion of 62. Alexander. For a critique of this view. Rev.63 interest accommodation and social stability.190 law. Alexander. Kent Greenawalt. See John Stuart Mill. The Value of Free Speech. 40 U. Political Freedom: The Constitutional Powers of the People (1960). See also Martin H.g.68 At least one of these goods.69 The monistic theories either ignore other goods or view their promotion as instrumental in maximizing the one good that they ultimately value.67 These goods vary in many respects. Redish. See also Alexander Meiklejohn. Scanlon. Why Be Tolerant?. may be considered important regardless of people’s preferences or its contribution to their happiness. 1485 (1987) (reviewing Bollinger. supra note 50. 130–47 (1989) (critically discussing these rationales). Rev. See. J. e. Some focus on the interests of speakers. Alexander. at 132–33. Meiklejohn. Redish. David A. supra note 50. 67. Others are monistic: they justify the special status of freedom of speech as aiming at promoting one goal only. and morality Kent Greenawalt has identified six types of goods promoted by free speech:62 the discovery of truth. This rationale for freedom of speech has been powerfully advocated by Mill. Freedom of Expression and Categories of Expression. 64. 119. 65. L.). For critical discussions of this rationale. reprinted in On Liberty and Other Essays 5 (Oxford Univ. Free Speech Justifications. On Liberty (1859). Freedom of Communicative Action: A Theory of the First Amendment Freedom of Speech. 519. 89 Colum.g. at 130–32. others on the interests of the audience. L. Rev. 54. 591 (1982). 130 U. freedom of speech 191 different goods. but his notion of political speech encompasses any speech which is “both intended and received as a contribution to public deliberation about some issue. supra note 34.72 yet his endorsement of rules rests on purely pragmatic grounds and is therefore unlikely to yield a truly deontological moral theory of free speech on the factoral level. For example. at 740–41. at 68–69.R.” yet that other values such as facilitation of liberal democracy and truth discovery are important because they contribute to individual self-realization. feminists have made the comparable argument that since pornography silences women. Rather. and Speech. C. Rev.” Cass R. supra note 36.. 20 Harv. or government accountability. 990–92 (1978) [hereinafter Baker. Human Liberty and Freedom of Speech 47–69 (1989) [hereinafter Baker. See. Sunstein. Deontologists do not endorse free speech merely because it is expected to maximize such values as truth. 73. Pornography. Respect for people’s autonomy and dignity requires everybody. MacKinnon. they may be described as providing consequentialist justifications for deontological constraints on the factoral level. Thus. Frontiers. 1 (1985). the various theories differ as to the range of expressive activities they deem worthy of constitutional protection. 71. e. asserting that the only value underlying free speech is “individual self-realization. This constraint may be seen as a particular manifestation of the more general constraint against actively/ intentionally harming people’s autonomy and dignity.73 While respect for human dignity requires one to refrain from inflicting other types of harm as well. C.71 He subsequently pointed to the advantages of setting general legal rules. Scope of the First Amendment Freedom of Speech. First Amendment].-C. they recognize a constraint against preventing people from expressing themselves or listening to others. supra note 65. 964. tolerance. Catherine A. Rev. Democracy and the Problem of Free Speech (1993). 72. Redish. however. Martin Redish has advocated an inclusive monistic theory. Edwin Baker. Civil Rights. Citizens may be legitimately expected to respect the community’s collective decisions—that is.70 These theories propose justifications for constitutional protection of free speech. Such respect underlies the liberal theory of the state. there is an especially close 70. C. Cass Sunstein has argued that only political speech deserves stringent protection. 25 UCLA L.g. Edwin Baker. Posner. L. it should be curtailed to promote overall free speech. Posner. In that sense. seems to be consequentialist on the factoral level as well. Human Liberty]. to obey the law—only if the community respects them as autonomous and rational people of equal worth.L. . Posner proposes that speech can legitimately be suppressed for the sake of promoting more speech. including the state. Standard economic analysis of free speech. to refrain from silencing other people or preventing them from listening to others. Interestingly. and Freedom of Expression. such as protecting their lives. Strauss. Richards. and artistic creativity. Autonomy. treating people as autonomous human beings necessitates letting them shape their own lives.74 Hence. See also infra pp. Tucker. 334. L. It is essential to self-realization. in order to affect people’s beliefs and conduct. Richards. 204. at 359–60. economics. inhibiting a certain behavior by lying to people or by suppressing speech is more harmful to their autonomy than an outright prohibition of the same behavior. and morality connection between expressions of ideas and feelings and one’s inner thoughts and emotions. but they do not authorize the state to interfere in other spheres. we do not discuss here the latter issue. David A. 76.79 To regard themselves as autonomous. rational agents”). and such shaping entails free access to any information. Solum. 91 Colum. For a subsequent revision of his theory. Free Speech and Obscenity . supra note 68. Aff. liberty.76 From this perspective.J. Note that this deontological rationale of free speech may justify restrictions on the power of the state to prevent people’s access to available information without necessarily requiring the government or anybody else to actively provide people with information.75 Just as inducing a person to act by lying to her is disrespectful of her autonomy—using her as a means to realizing the liar’s ends—so too does governmental prevention of access to information and arguments. 215 (1972) (arguing that a defensible principle of freedom of speech should rest on the view that “the powers of the state are limited to those that citizens could recognize while still regarding themselves as equal.F. 63 (1985). 1 Phil. Toleration and the Constitution 166–74 (1986). David A. and Free Speech 34–56. As indicated before. Rev. & Pub. Law. Id. Liberalism. 75.78 The deontological justification for free speech often rests on contractarian theories of the state. Id. supra note 63. 218–21. suppression of speech is particularly harmful to one’s dignity. and property.192 law. J.77 Silencing some views rather than others also violates the requirement to treat people with equal respect. A Theory of Freedom of Expression. 79. Suppressing speech that aims to convince people of the truthfulness of certain beliefs or persuade them to do certain things via rational arguments adversely affects people’s autonomy because it interferes with their control over their reasoning process. 78. people must retain 74. or argument. 77. See also David A. at 79–81.B. 354 (1991). autonomous. Interpersonal communication is essential for the development and fulfillment of one’s rational faculties. see Scanlon. People entrust the government with the protection of interests they cannot safeguard by themselves. D. at 353–59 (advocating this proposition and discussing counter-arguments). violates their autonomy. In the same way. view. emotions. Thomas Scanlon. Persuasion. as potential listeners can plausibly waive their right to receive certain information. 80. Normative Ethics 17–22. on the other hand. Pa. at 8–9. A deontological factoral theory may possibly be justified by a consequentialist foundational theory (such as rule-consequentialism). even autonomous and rational people may legitimize certain limitations on freedom of speech as a means of protecting themselves from harm inflicted by others or even as a self-paternalistic measure. supra note 62. at 32–33. 59–70 (1975). 123 U. silencing her would not. supra note 78. Law: Toward A Moral Theory of the First Amendment. At the same time. 26–27.81 As the above analysis implies. supra note 50. for example. might legitimize silencing a person whose views nobody wishes to hear. Thus. 45.80 A comparable argument can be made regarding contractarianism as a theory of private morality. Contractarianism is a foundational normative theory. See generally Shelly Kagan. supra note 78. such as young children or corporations. a contractarian ethical or political theory is neither a sufficient nor a necessary condition for the recognition of a constraint against curtailing free speech. Roger A. 294–303 (1998). See also Greenawalt. a constraint against preventing the reading of works of a dead author. Similarly. or access to naturally existing information. for the purpose of practical thought such reasons should nevertheless count as nonconsequentialist). even if nonconsequentialist reasons for protecting free speech may ultimately be justified as producing the best effects overall. 81. Alexander.82 An audience-centered theory. while our focus is on the factoral level. Richards. Scanlon. a speaker-centered theory faces difficulty explaining. Freedom of Commercial Expression 163–91 (2003). at 128 (arguing that. if a person desires to express her support for a well-known opinion. at 165–87. supra pp. See also Greenawalt. Rev. . On the one hand. L. and a contractarian foundational theory may conceivably yield a consequentialist factoral theory. 223–39. Tucker. It may also fail to justify a constraint against denying access to ideas produced by entities that may not be considered autonomous human beings. In and of itself. a plausible version of the deontological constraint against suppressing free speech should not rest solely on respect for the autonomy and dignity of the listeners nor focus exclusively on the autonomy and dignity of the speakers. freedom of speech need not be absolute. supra note 3. in circumstances where this support adds nothing to the audience’s deliberation. presumably. supra note 68. Shiner.freedom of speech 193 sovereignty over their beliefs and ability to rationally weigh competing reasons for action. 82. at 34–56. 189–94. at 79. 83. and silencing speech as a mere side effect of pursuing other goals. supra note 63. audience. See supra pp. the two theories may be combined.194 law. only a deontological factoral theory treats respect for autonomy as a constraint on promoting the good. at 520–28 (analyzing the interests of participants. as alluded to already. economics. It may discount. moderate deontology is likely to differentiate between different harms which speech may cause. and bystanders). Cf. Some clarifications are in order before proceeding to discuss how these implications may affect a constrained CBA of freedom of speech. Inter alia. there is a substantial difference between silencing speech because the government disapproves of the speaker’s views or because it prefers that certain issues will not be discussed in public. Second. consequentialism and promoting personal autonomy are not incompatible. Redish. suppression of free speech sometimes infringes the rights of speakers. . 84. sometimes the rights of the audience.85 Yet. First. Deontology may also exclude chronologically remote.83 Proponents of each of these competing theories may perhaps reply to these critiques. Solum. low-probability. harms caused by people being rationally persuaded to do certain things. while a consequentialist theory would aim at maximizing overall autonomy. and very small harms caused by any speech. that one must choose between the two. We do not believe. supra note 68. supra note 65. A consequentialist moral theory may incorporate autonomy into its theory of the good. since welfare economics rests on a preference-satisfaction theory of human well-being. At any rate. and typically the rights of both. it attributes no intrinsic value to autonomy.g.. and morality infringe the audience’s rights in any way. many of which will be discussed in greater detail in the following section. or exclude altogether. See. 30–32. and thus this path is not open to it. 85. Scanlon. however. It may similarly ignore the displeasure experienced by disinterested people. from a moderate deontology perspective.84 The deontological conception of free speech carries various implications. e. Rather. The very existence of a threshold constraint implies that even worthless speech deserves protection as long as the costs it inflicts do not surpass the threshold. such as preventing litter and traffic congestion. the usefulness of a constrained CBA of free speech does not assume that respect for dignity and autonomy is the sole rationale for this principle. Accordingly. Unlike consequentialism. On the strengths and weaknesses of pluralistic theories of freedom of speech. she may maintain that avoiding such harms can only justify speech regulation in extreme cases. and it prohibits any act or rule infringing a deontological constraint unless its net benefit meets a certain threshold. as explained above. Alternatively. • E. The Regulation’s Net Benefit (a) General Deontologically constrained CBA deviates from standard CBA in two central respects: it may exclude or discount certain types of costs and benefits. In considering the benefit which may justify infringement of the constraint against suppressing free speech. this factoral theory may rest on consequentialism at the foundational level (such as. One may be a pluralist and still recognize the necessity of setting constraints on limiting freedom of speech. 84–96. A moderate deontologist may hold that some types of harm can never justify the curtailment of free speech. In what follows. we discuss both exclusion and discounting of harms. or setting a high threshold for the justification of regulation aimed at preventing such harms. possibly. rule-consequentialism). thus either substantially discounting their weight. and the following one will discuss the second. . paying heed to the interrelations between them. This subsection discusses the first aspect. while a constrained CBA assumes that moderate deontology is the most appropriate moral theory on the factoral level. 86.freedom of speech 195 The ensuing analysis is perfectly compatible with a pluralistic view that justifies freedom of speech in large part by its desirable consequences. Constrained Cost-Benefit Analysis 1. supra note 63.86 Finally.87 Both aspects of threshold deontology are manifest in the legal thinking of freedom of speech and may thus be fruitfully illuminated through a constrained CBA. See generally supra pp. at 82–85. 87. see Solum. and thus the benefit from their elimination should not be part of a constrained CBA of speech regulation. moderate deontology is unlikely to take into account just any cost or benefit. counterproductive regulation. the more difficult it is to assess its probability and magnitude. (b) Chronologically Remote Harms Standard CBA employs a discount rate to determine the present value of future benefits and costs. ordinarily the longer the period between the advocacy and the action. For instance. no discounting expressly applies to the speech’s benefit). economics. 24–29 (proposing an economic model for CBA of speech regulation which includes a variable E for the costs of regulators’ errors). Thus. or insubstantial harms of the relevant speech. at 8–9. Note. Deontologically constrained CBA may treat future outcomes in the same way. This argument is instrumental and contingent. As such. also.88 Another rationale is that chronological remoteness may serve as a proxy for low probability. . and the offensiveness of some expressions. harms resulting from the behavior of legally responsible listeners who were rationally persuaded to act in a certain way. A moderate deontologist may also wish to distinguish between infringing a constraint in order to prevent the decrease in human welfare expected from a certain speech and infringing a constraint to increase the current level of welfare. it may comfortably fit into a standard CBA. or only some (or none) of the above harms. A deontologist may discount additional harms. Posner. the less likely it is that the action 88. and thus the greater the danger of erroneous. a view that one must not infringe freedom of speech in order to prevent a certain type of harms is translated to the exclusion of these harms in calculating the benefit from suppressing the harmful speech. Free Speech. supra note 34. None of these excluders is self-justificatory.196 law. This feature is evident in Posner’s formula discussed above (though. Cf. somewhat surprisingly. that excluding or discounting these harms is tantamount to excluding or discounting the benefits from suppressing the harmful speech. while the speech’s harm is discounted for its futurity. and morality A deontologically constrained CBA of speech regulation may exclude or discount chronologically remote. One rationale rests on second-order considerations: the further the expected harm. but it may also completely exclude or radically discount them. Various rationales have been offered for the exclusion of chronologically remote harms. in the context of advocacy of lawless action. They all require careful normative examination. low-probability. supra note 34. Baker. Strauss argues that the very notions of production and consumption. Wellington. at 65. in judicial proceedings. Frontiers. 90. and thus arguably redundant.91 This argument serves not only to explain the exclusion or discount of chronologically remote harms. supra note 34. such as those of scientists and academics. This argument is.90 At any rate. First Amendment. however.92 It is not clear that absent regulation. 94. It does not hold whenever some harm is both chronologically remote and highly probable. Posner. are doomed to failure. but also—and primarily—to substantiate an opposition to any regulation of speech. however. Alexander. Posner.J. 1105. at 65. supra note 50. Larry Alexander. A third argument rests on a strong belief in the functioning of the “marketplace of ideas. it is parasitic on the minimal probability requirement that will be discussed below. thus reducing its probability. thus reflecting skepticism regarding the efficacy of the “market” to eliminate false claims. selling and buying. supra note 75. 2000). Harry H. The “marketplace of ideas” is saturated with market failures. and supply and demand. . supra note 49. 92. and truthful and beneficial ideas will eventually prevail. moral. Incitement and Freedom of Speech. at 348–49. such as those of hate speech. Whenever there is enough time for the free market to restrain harmful ideas. It may well be that demagogy. at 121–22. shortsightedness. Frontiers. See Posner. the law imposes significant limitations on the form and substance of admissible evidence. at 976–78. and irrational sentiments will have the upper hand. truth will necessarily prevail over falsehood. the making of arguments is subject to considerable restrictions. Strauss. susceptible to powerful critiques. Posner concedes that the market in ideas cannot be expected to function perfectly. 91. Frontiers. do not meaningfully capture the processes of forming and disseminating political.freedom of speech 197 will occur. or aesthetic ideas. 88 Yale L. Similarly.93 Even within communities committed to the rational pursuit of truth.94 Finally. in Freedom of Speech and Incitement Against Democracy 101. It is. at 128. 1130 (1979). 109 (David Kretzmer & Francine Kershman Hazan eds. See supra notes 31–33 and accompanying text. if the crux of the marketplace of ideas metaphor is that free deliberation is the best way to weed out 89. contingent as well.89 Various changes in circumstances and intervening factors may render such advocacy ineffective.” In such a market. supra note 34. save for expressions that are expected to cause an immediate harm. state regulation is unnecessary. yet he believes that the “very thing that makes this market inefficient—the extremely high costs of information [about the quality of ideas]—makes the regulation of them inefficient.” Posner. 93. On Freedom of Expression.. supra note 73. at 84–85. false and harmful ideas. . We shall focus on the deontological basis for excluding chronologically remote harms. Whitney. Redish. Whitney v. 357. at 347–48. to avert the evil by the process of education. See supra pp. 98. See supra pp. For instance. Kertzmer. supra note 19. 95.S. as in the case of advocacy of violence against innocents. 218–21. concurring) (“If there be time to expose through discussion the falsehood and fallacies. 274 U. economics. not enforced silence”). Cf. the exact shape of any excluder depends on its rationale. speech is sometimes protected although it is known to be worthless and even damaging. For a critique of the more speech argument.S. the remedy to be applied is more speech. 377 (1927) (Brandeis. at 1162. at 468–76. the constraint against silencing people may only be infringed if there are no alternative means to bring about similar good outcomes without such an infringement. whenever it is possible to prevent certain harms without curtailing speech. 97. at 377 (holding that “only an emergency can justify repression” of free speech). 116–17. See also infra pp. California. harmful advocacy may be counteracted by education. The fact that a harm is expected to materialize only after some time plausibly implies that the state will have the opportunity to prevent it without curtailing free speech. it is impermissible to curtail speech. 222–23. set so high a threshold. Plausibly. and morality false and harmful ideas.96 The common feature of this rationale and the marketplace of ideas argument is that both maintain that.98 Moderate deontology need not. According to this distinctively deontological argument. Contrary to the marketplace of ideas rationale. even if the net benefit of suppressing dangerous expressions is great enough to warrant curtailing free speech. then this process seems unnecessary whenever the falsehood and harmfulness of a speech is a given. .97 This argument echoes the deontological sentiment that only in emergency situations may a constraint be justifiably infringed. J. however. supra note 50. under prevailing moral and legal norms. but it should be stressed that a rule-consequentialist may endorse comparable exclusions for the instrumental reasons discussed above. it is compatible with a more flexible chronological threshold. 81–83. 274 U. see Strauss. 96.198 law. the police may take measures to prevent the unlawful conduct without silencing those who advocate it. infra pp. At other times. supra note 75. The difference between them lies in that the present rationale does not rest on a belief in the effectiveness of the unregulated market of ideas.95 We then turn to a fourth basis for excluding/discounting chronologically remote harms. thus reaching similar conclusions on the factoral level. when a speech advocating lawless action is directed at the general public or at an unidentified group of people. infra pp. See Clay Calvert. even a deontologist might not exclude chronologically remote harms from a constrained CBA.101 To illustrate. at 462–67. David G. 147–48. a deontologist may argue that it is never permissible to curtail freedom of speech if the probability that the speech will actually bring about the harm is miniscule. under many circumstances. supra note 89. the law often permits the curtailment of free speech only if its expected harm is certain or “clear. the fourth argument may take one of two forms. and when its adverse effect is the product of the cumulative effect of numerous similar expressions—then speech regulation may be the only effective way to thwart the danger. 89–91. the likelihood that a call to undemocratically overthrow the government would result in anybody taking actual steps in this direction is very small. it may enter the analysis when choosing among different permissible courses of action. over a long period of time.99 Under such circumstances. The Clear and Present Danger Test in Anglo-American and European Law. 222–23. See also supra pp. 344–45. Cf. See supra pp. Alexander.100 (c) Low-Probability Harms Alongside the tendency to exclude or drastically discount chronologically remote harms. Here we examined the first possibility. 263 (2006). and the second will be discussed below. See infra pp. 100. .freedom of speech 199 The availability of effective alternative. It may justify the exclusion of chronologically remote harms when determining the permissibility of the regulation. Redish. supra note 19. when it produces its harmful effect gradually. See supra pp. Within a deontologically constrained CBA of speech regulation.” thus excluding low-probability harms. 101. 47 J. Hate Speech and Its Harms: A Communication Theory Perspective. supra note 50. at 109.102 99. Kretzmer. Alternatively. In contrast. 7 San Diego Int’l L. As a matter of fact. 182–83. Barnum. Such measures are more likely to succeed when the speech is directed at a relatively small group of identified people and advocates a specific unlawful behavior. thus rendering the silencing of the speaker unjustifiable. 102.J. Communication 4 (1997). noninfringing preventive measures against chronologically remote dangers vary from one setting to another. 106.106 A different way to justify this prohibition. 9. such as the advocacy of genocide. economics. such as the risk of miscalculation by a regulator or by a court reviewing governmental decisions.N.S.200 law. 92 Iowa L. In setting the minimal probability threshold. David Luban. . they are interrelated.T. According to the alternative justification. a deontologist may still insist that respect for people’s autonomy and dignity mandates that no amount of improbable harms ever justifies the silencing of people. the present excluder may rest on purely consequentialist or instrumental grounds. On this provision and on the United States’ opposition to it due to the lack of requirement regarding the probability that the incitement would actually result in genocide. less than 5 percent. A deontologist may hold that some types of expression. See Jonathan S. does not rest on the fear of genocide. 207. & Pub. Art. 319–34 (2009).104 While the chronological remoteness and probability of harms are analytically separate. For a related argument in the context of the fight against terrorism. Preventive War. 1293 (2007) (arguing that the exclusion of low-probability risks is a corrective to a systematic overestimation of speech-based threats due to people’s tendency to overstate low-probability. while it may be justified to exclude the danger of political unrest if the probability that a certain speech will actually bring it about is. and morality Like the exclusion of chronologically remote harms. Rev. say. 234 (2004). Thus. as well as due to informational asymmetries favoring the government). 105. one must pay heed to the temporal dimension. . the probability of the same harm materializing within a year or a decade may be much higher. 147–48. 1948. one should also take into account the type and magnitude of the speech’s expected harm. Dec. In assessing the probability of a certain harm. . Masur. 3 (“The following acts shall be punishable: . should be prohibited even if the likelihood that they will ever bring about the advocated behavior is quite small. At the same time. see William A. 277. advocacy of genocide should be suppressed due 103. Genocide in International Law: The Crime of Crimes 307. Aff. one might not wish to exclude the danger of a mass killing of innocent people even if the probability that some speech will bring it about is considerably smaller. 78 U. 104. Schabas. (c) Direct and public incitement to commit genocide”). Cf.103 Absent such bases. emotionally salient dangers. The probability of a certain harm materializing within a week may be very low. In fact. 32 Phil. Convention on the Prevention and Punishment of the Crime of Genocide. see supra pp.105 The assessment of imminence should therefore take into account both the likelihood of harm and the period for which this likelihood is calculated. Probability Thresholds. the United Nations Genocide Convention criminalizes incitement to genocide regardless of the probability that it would actually bring it about. when the likelihood of ensuing genocide is very small. Bridges v. Pornography. supra note 19. as long as the benefit of the regulation is lower than the threshold of the pertinent constraint. A deontologist may reach the same conclusion even absent any administrative costs. Such suppression may be justified on the ground that the speech itself. In this respect. and the First Amendment: A Theory of Unprotected Speech. regardless of its expected effect. whose probability may be very high. at 191. 1887 (1992). at least to some extent.. or their disvalue is not large enough to justify the infringement of the deontological constraint against suppressing speech. Bigotry. such as emotional distress (due to their type or magnitude). For the argument that some expressions lie outside the scope of speech protection altogether. Alon Harel. see. Assuming that some or all of these harms should be taken into account in calculating the benefit of speech regulation (an assumption examined in the next subsection). e. minor breaches of the peace. quoted in p.g. interracial hostility. intrinsic negative value large enough to meet the pertinent threshold.108 A constrained 107. 182 above.g. a moderate deontologist may possibly justify the suppression of advocacy of genocide even if one disregards both the prevention of genocide (due to its low probability) and the elimination of the other adverse effects. 263 (1941) (interpreting the Schenck’s formula. See. 108. 65 S. Moreover. . if the magnitude of the total expected harm is too small. Redish. California. This position rejects contentneutrality. The requirement of minimal total harm is reflected in United States law. has an objectively-determined. This possibility exceeds the boundaries of constrained CBA as analyzed in this book because it rests on a theory of the good that takes into account nonwelfarist components. Standard CBA may reach this conclusion if the net benefit of the regulation is smaller than its administrative costs. at 1179–80. the court ruled that “the substantive evil must be extremely serious”). Greenawalt. advocacy of genocide or similar horrendous crimes is different from the advocacy of other lawless actions. Speech.freedom of speech 201 to its additional harmful effects.107 (d) Small Harms Both standard CBA and a deontologically constrained CBA would object to regulating a speech that is expected to cause certain and immediate harm. Such likely effects include ethnic hatred. supra note 3. 252. 314 U.. Rev. they may justify infringing the constraint against suppressing free speech even if the danger of genocide is excluded due to its low probability. L. and widespread emotional distress among the targeted group.S. The latter either have some positive value of their own. Cal. e. unposted.112 Such a 109. economics. Whitney. See supra pp. supra note 75. 79–80. free society. and certainly consider its merits. thus excluding small harms.110 Unlike the exclusion of chronologically remote harms. Cf. Respect for autonomy requires letting people hold a belief or desire. The minimal magnitude of the harm necessary to render it morally relevant may depend on the type of harm involved and the way it is brought about. they are an unavoidable cost of living in a tolerant. 206–10 and 202–06. at 377–78 (“[I]t is hardly conceivable that this Court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross unenclosed. See infra pp. A related argument is that. since the ultimate harm is caused by the actions of the listeners who rationally considered the pertinent factors.111 (e) Harms Brought About Through Rational Persuasion Inasmuch as the deontological constraint against curtailing free speech is grounded in respect for the autonomy of potential listeners.202 law. at 359–60. add another condition. waste lands and to advocate their doing so. however. 110. 111. which is primarily relevant to harms caused in two steps. Whether such adverse feelings are experienced by few or by millions. respectively. and morality CBA may. 112. A more difficult question is whether the minimal magnitude of the prevented harm should vary from one category of speech to another (cf. namely that only harms whose magnitude surpasses a certain threshold would count in calculating the total expected harm. even if they cannot act on it. . 274 U.S. it may be argued that harms resulting from rational persuasion of the listeners to act in a certain way must not be taken into account in calculating the net benefit of silencing the speech. even if there was imminent danger that advocacy would lead to a trespass”).109 For example. 218–21). and should therefore be ignored. Even if the government may legitimately prohibit certain harmful activities. the exclusion of small harms is relevant to harms caused in one step as well (such as offensiveness). even if certain expressions may be curtailed due to their offensive nature—an issue we will soon address—a deontologist may hold that no amount of minor offenses or moderate feelings of resentment ever suffices to justify the suppression of speech. infra pp. Strauss. the speaker is not morally responsible for the harm. a political protest calling on people not to file their tax returns on time may be considered protected speech whatever the number of taxpayers expected to follow this call. it should not proscribe the advocacy of such activities. Similarly. ”114 Even if one cannot expect more speech or the market of ideas to counteract the harmful speech. it should not protect outright factual lies. it must not be silenced. and other manipulations that do 113. Scanlon. 115. and thus it makes a difference whether a threshold function adopts one or the other (or both). those effects should be disregarded or discounted when considering the benefit of suppressing the speech. The second category consists of expressions that induce people to engage in chronologically remote. See Solum. Arguably. The elimination of harms brought about through rational persuasion would not exclude the benefits of suppressing the latter. at 348–49. The elimination or discounting of chronologically remote harms would not exclude the benefits of silencing the first type of expressions. While there is considerable overlap between these two possible excluders. rather than through rational persuasion. 197–98. if its harmful effects are brought about through rational persuasion. threats. 116. Scanlon and Strauss’s principles resonate with Solum’s theory. The first category consists of expressions that rationally persuade people to immediately or imminently engage in harmful activities. supra note 75. the two excluders potentially diverge. namely that whenever there is enough time for the government to counteract the effects of the harmful speech by exposing its fallacy. or other manipulations. Another clarification pertains to the relationship between the rational persuasion principle and the incidence of the constraint against curtailing free speech.freedom of speech 203 position does not necessarily rely on the “more speech” argument.”116 Several issues need to be clarified before proceeding to examine how this principle may be incorporated into a threshold function. Strauss. supra note 75. brainwashing. to the extent that the constraint rests on respect for people as autonomous and rational human beings. 114. resting on Habermas’s distinction between communicative action and strategic action.113 Neither does it rest on the optimistic belief in the unregulated “marketplace of ideas. supra note 79. roughly. Strauss. what David Strauss dubs “the persuasion principle. the overlap is not complete. threats. This is. In two types of cases. See supra note 97 and accompanying text.”115 and Scanlon earlier termed “the Millian Principle. The first has to do with the relationship between rational persuasion and the exclusion or discounting of chronologically remote harms. See also supra pp. . harmful activities through false factual statements. supra note 63. 276–81 (1978). 120. This position is supported by pragmatic considerations. Schauer. Even expressions that strive to affect people’s behavior in a manipulative way or that directly harm people without trying to affect anyone’s behavior must not be restricted unless the benefit of the restriction surpasses a certain threshold. very problematic. at 70–74. Rev. L. respect for the speaker’s dignity and autonomy requires refraining from silencing her so long as she sincerely believes in the truthfulness and soundness of her claims. This distinction is. Cf. But its primary justification is principled.119 Finally. but its justification lies not in denying that it infringes freedom of expression but rather in determining that enough bad is avoided by such measures to justify the infringement.117 According to this argument. for instance. Cf. differentiating between making false factual assertions (manipulation) and expressing “false” opinions (persuasion) presupposes a distinction between facts and opinions. For instance. however. economics. See Fredrick F. one may possibly endorse the rational persuasion principle without denying the unique status of situation-altering communications. Solum. 114–15. may well be justified. At the very least. and morality not affect people’s behavior through reasoning and reflection. under at least some circumstances. one “rationally persuades” another person to commit murder does not require disregarding 117. 64 Va. and the First Amendment: An Essay in Memory of Harry Canter. action). respect for people’s autonomy requires letting them express themselves and hear others express themselves. such as those involved in criminal conspiracy or the initiation of an unlawful restraint of trade. 118. 107–09. Accordingly. . as opposed to communicative. This restrictive conception of free speech is problematic. Alexander.120 The fact that in hiring a professional killer. such as the difficulty in distinguishing between rational persuasion and manipulation118 and the potential chilling effect of imposing legal liability for false expressions. Alexander. supra note 50. the legal suppression of racial insults and bigotry. Truth. suppressing modes of expression that aim at bypassing the process of rational deliberation does not infringe any constraint. supra note 50.204 law. Unless enough bad outcomes are at stake. 263. See supra note 3 and accompanying text. even if the pertinent expressions do not consist of rational arguments or otherwise valuable information or ideas. however. at 135 (criticizing a narrow conception of the deontological constraint against suppressing speech encompassing only rational persuasion). Language. at 91–93. supra note 63. Similarly. 119. respect for the autonomy of listeners may require letting them judge for themselves the accuracy and cogency of arguments. 119–26 (discussing strategic. 121 Having clarified these points. at 119–23. and that this blurriness may have to do with the weakness of the very notion that harms brought about through rational persuasion should not be considered (or should be discounted) in judging the permissibility of curtailing speech. supra p. Scanlon on Freedom of Expression. The relative weight of the different harmful outcomes—those that are brought about through 121. One possibility is to discount harms resulting from rational persuasion (that is. supra note 75. and assuming that despite the critique. that the borderline between situation-altering and other communications is often blurred. The first choice to be made is between complete disregard for harms brought about through rational persuasion and mere discounting of their weight. the fact that a rational.122 Apparently. Since we believe that even when the injurious effects of an expression are the result of rational persuasion. such as those resulting from the disclosure of confidential information or defamation. 287 (1980). Alternatively. one may set a particularly high threshold for the justification of suppressing speech. Arguably. supra note 63. discount the corresponding benefits of curtailing the harmful speech). This choice is not merely formal. Aff. at 360–61 (conceding that “the persuasion principle can be overridden if the consequences of permitting the speech are sufficiently harmful”). reducing the effect of harms caused through rational persuasion may be done in two ways.freedom of speech 205 or discounting the expected harm of such communication. 122. The expression may also involve direct. a single expression brings about different harms in different ways. Cf. Strauss. autonomous agent is morally and legally responsible for directly harming other people should not exculpate the person who has rationally persuaded her to inflict the harm (whether the harm is a particular criminal act or a general practice of racial discrimination). we can examine how threshold functions may incorporate the persuasion principle.g. 9 Phil. The speaker may rationally persuade some people to act in a harmful way and at the same time instigate violence by people who will act without any rational deliberation. & Pub. one holds that the present excluder is warranted. Often. Cf. there may be cases in which the expression’s expected harm is great enough to warrant an infringement of the constraint against actively/intentionally suppressing speech.. . 73. Solum. we do not endorse total exclusion of such harm. whenever the negative effects of a certain speech are brought about through rational persuasion. e. It should be conceded. however. Robert Amdur. one-step harms. See. all of the avoided harms are the product of rational persuasion. 96 Yale L. 881. moral convictions. revulsion. half of the avoided harms are the product of such persuasion. flag burning. Similar considerations pertain to the exclusion/discounting of other harms discussed above and below. in case B. whereas the former one enables to treat them through a unified formula. 886–89 (1987) (reviewing Feinberg). we shall examine and support the use of different threshold functions for dissimilar bases of regulation and dissimilar categories of speech. On additional meanings of offensiveness and on the considerable difficulty of drawing the line between offensiveness and harm. or merely knowing about. or shock. anger. economics. whenever the same speech is expected to cause different types of harm. Since the persuasion principle calls for such differentiation. based on the expected relative weight of the harms brought about through rational persuasion. Vol. A moment’s reflection reveals that none of the conventional distinctions— such as between content-based and content-neutral regulation or between political and commercial speech—necessarily coincides with the persuasion principle. racial and ethnic hate speech. In this subsection. see generally Joel Feinberg. The latter formulation requires setting different formulations to each of these cases. If the same threshold function applies to all three cases (which may be warranted for methodological or pragmatic reasons). such as disgust. one should either use the former formulation or construct different functions for different scenarios. while setting a very high threshold without such discount would treat those cases similarly. . such expressions as antireligious epithets and blasphemy.J. and chauvinist insults. Compare. for example. Dalton. Harlon L.206 law. three cases in which the regulation’s total expected net benefit is similar: In case A. 124. experienced by people whose deeply held religious beliefs.123 Later on. or social values are offended by being exposed to. then a function that discounts rational persuasion would differentiate between those cases. 2: Offense to Others (1985). For this reason. “Disgust” and Punishment. and morality rational persuasion and those that are brought about otherwise—may vary. such categorization does not substitute the discounting of harms resulting from rational persuasion. The Moral Limits of the Criminal Law. and in case C—none. hard core pornography and obscenity. (f) Offensiveness The term offensiveness has numerous meanings. we use it to denote an adverse psychological effect or state of mind.124 Drawing the line between these 123. suppressing offensive speech sometimes yields additional benefits. Fighting Words: Individuals. in addition to preventing adverse mental states. let alone the mere preferences of disinterested people. Religion and Freedom of Speech: Portraits of Muhammad. supra note 34. This is the case when the silenced speech is likely to result in outbreaks of racial or religious riots in which people may be injured or killed. Moreover. supra note 2. 315 U. State of New Hampshire. e.freedom of speech 207 types of offensive expression. 572 (1942) (holding that constitutional protection does not apply to “insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace”).S. second-order consequentialist reasons to disregard the offensiveness of speech. 28. See Chaplinsky v. Frontiers. 14 Constellations 72 (2007). Posner. While the court described such fighting words as a “well-defined” class of speech. Kent Greenawalt. See. the great difficulty of determining the existence and quantifying the intensity of such feelings and preferences renders the analysis rather manipulative. Robert Post. See. For one thing. Tribe. at 849–56. though. and other situation-altering utterances. demarcating this class is rather difficult. and abusive language aimed predominantly at inflicting severe psychological wounds on the listener. fighting words intended to provoke immediate violence by the addressees.g. should presumably be given full weight. while certain expressions offend some people. including the offense taken by people who are not directly affected by the speech. Standard CBA of speech regulation takes into account all costs and benefits.. . it is at least possible that some people are deeply upset by the suppression of those expressions. See supra p. Cf. at 78.125 Another complication stems from the fact that. Communities. 28. In fact. 127.g. e. It focuses instead on the core of offensive expressions and asks whether their prevention may be considered part of the net benefit justifying the curtailment of free speech.126 This subsection puts aside these complications.. may be extremely complicated. to the extent that utilities and disutilities are measured according to people’s preferences. There are. 568. but merely prefer that some expressions be suppressed. supra p. 128.127 Unqualified consideration of such feelings also raises the concern of confusing preferences with normative judgments. on the other hand. as it would enable the government to use offensiveness as a pretext to suppressing speech where 125. 126. The question of whether such benefits justify speech regulation raises concerns of its own. even the preferences of people who do not experience any adverse feeling. on the one hand.128 Legitimizing speech regulation on grounds of offensiveness may thus be too risky. and Liberties of Speech 47–58 (1995). supra note 67. which in turn is one factor determining its seriousness).130 These consequentialist rationales for excluding or discounting offensiveness are contingent and somewhat speculative. at 27–30. supra note 78. Be that as it may. 201–02. Moreover. economics. 130. at 78–79. at 38–39 (excluding offensiveness as a ground for limiting the expression of opinions). is not a sufficient reason to curtail people’s freedom to engage in such expressive activities. and extent of offense as determining its magnitude. artistic works. Bollinger. history reveals that ideas. the long-term effects argument may be turned on its head. Feinberg. Offensiveness may be excluded altogether unless either or both its intensity and duration surpass certain (high) thresholds. it raises questions regarding the intergenerational allocation of welfare). Respect for people’s dignity requires people to withstand the adverse emotional impact caused by offensive speech. 131. by pornography. at 128–36. supra note 86. may in the long run be outweighed by the greater good produced by the challenging and stimulating effect of the offensive speech. or by blasphemous expressions. by watching or hearing about flag burning. and morality the real grounds are illegitimate. In deciding whether an offense should fully or partially count in calculating the net benefit of the regulation. The short-term offense experienced by some (or many). and certain behaviors that were deemed deeply offensive in the past (and are still so regarded in some societies) have become perfectly acceptable and even conventional. a deontologist may hold that offensiveness should be excluded or radically discounted in calculating the net benefit of suppressing speech on the basis of the notion of tolerance. Cf. Fienberg. The very exposure to challenging expressions may alter people’s sensibilities. various characteristics of the offense should be considered. duration. Posner. 132. Cf. This is an application of the small harms excluder discussed supra pp. a moderate deontologist may adopt a more nuanced position. supra note 34.208 law. Strauss. . The weight of the concern that offensiveness be used as a pretext for ill-motivated regulation varies considerably from one context to another.129 Furthermore. at 342. supra note 75.131 Rather than excluding offensiveness altogether or conversely taking any offense into account. Tucker. in any case. Frontiers. 34–35 (discussing the intensity. Similarly. supra note 124. there is no particular reason to believe that people will cease to be offended by some types of speech in the long run.132 129. The very fact that a person is annoyed by a radical political caricature. as it is not clear that losing certain sensibilities is necessarily a good thing (and. Scanlon. see. in which innocent people may be injured or killed.133 Another pertinent factor is whether the offended person could have reasonably avoided the offensive speech. at 33–35 (discussing the “discounting of abnormal susceptibilities” factor in determining the seriousness of offense). intolerant people. it is actually more important for freedom of thought. Alternatively. 34–35 (discussing the “standard of reasonable avoidability” and the “volenti maxim” in determining the seriousness of an offense). Feinberg. See. It may.g.freedom of speech 209 Offense taken by overly sensitive people may be similarly disregarded. Post. supra note 78. supra note 124. See infra p. 135. 134. . Our main point is that insofar as one accepts these judgments. Post. Tucker. This distinction rests on the (contestable) assumption that offense resulting from bare knowledge of the existence of some speech should not be taken into account.g. See also Feinberg. be argued that while the public ridicule is more offensive. 136. because it calls the attention of more people to the issue and does so in a more powerful and vivid way. liberal democracies do tend to disregard mere offensiveness as a ground for 133. it is very easy to avoid watching offensive movies or reading offensive books but more difficult to avoid pornographic posters in one’s workplace. at 32–33. supra note 126. Not only is the latter typically more offensive. at 81–82..135 Yet another factor is the manner in which an opinion or claim is made. For a critical discussion of the distinction between different manners of making a claim. supra note 68. As a matter of fact. such as the offense taken by homophobic or racist people due to their homophobia or racism. it may be seen as a preferable alternative to silencing. they can and should inform a deontologically constrained CBA of speech regulation. e. suppressing the former is potentially more harmful to freedom of thought and of rational deliberation. at 80–82..134 For instance. at 135. As alluded to earlier. Cf. supra note 124. if offense resulting from such bare knowledge is deemed relevant. 254. Whenever avoidance is feasible. supra note 126. at 542–50 (analyzing the problem of unwilling audience in the context of pornography). however. one may still exclude such offense whenever the offended people can easily avoid not only the speech itself but also the knowledge of its existence. Another possibility would be to exclude offense to people whose sensitivity is considered immoral.136 One may or may not accept the normative judgments underlying the full or partial exclusion or discounting of offensiveness in assessing the net benefit of restricting speech according to these criteria. and thus its offensiveness may be disregarded. e. the conclusion may change whenever the bare knowledge of the offensive speech is likely to result in violence by overly sensitive. It is one thing to severely criticize a certain religion in an academic article and another to publicly ridicule its sacred symbols. it may be held that only harms which are more likely to occur than not to occur ( p > 0. for instance. immediate. immediacy. expected within a period of one month. and magnitude of the speech’s harms. According to this formulation. as in the above example. 182 above) at least literally represents such a position.210 law. it will not be taken into account whatever its expected magnitude and probability. Similarly. and they often resort to some or all of the distinctions considered. leaving some discretion to the decision-maker. supra note 125. it will be disregarded whatever the timing of its expected occurrence and its scope. 183. but they may also be less rigid. futurity.5). or discounting of various effects of speech regulation are made. and very serious harms (excluding. A rather extreme position may be that only absolutely certain. . Alternatively. if the probability that the harm will materialize is lower than the threshold. and whose magnitude is greater than some value are deemed relevant in assessing the permissibility of suppressing free speech. There is a vast number of possible combinations of different excluders and discounts. Once one excludes (or drastically discounts) those harms that do not meet the minimal probability.138 A less extreme possibility is to set independent thresholds for the probability. and the same applies to small harms. one has to define their interrelations and integrate them into a constrained CBA.137 (g) Combining Excluders Once the normative judgments regarding the inclusion. regardless of 137. American law takes an extreme position in this regard. a threshold function may take into consideration only very serious harms (whatever their probability or expected timing) and harms which are immediate and certain (whatever their type or magnitude). another issue is whether the remaining harms should be weighted according to their probability and chronological remoteness. and morality speech regulation. or other thresholds. Justice Holmes’s famous passage in Schenck (quoted in p. economics. For instance. magnitude. may justify the infringement of the constraint against suppressing free speech. mere offensiveness). See also Greenawalt. One may avoid such weighting and hold that at this stage only the aggregate harm counts. 138. exclusion. with varying degrees of discretion. Under either of these two alternatives. if the harm is not expected within the designated period. the various thresholds may be strictly set. As described in supra p. 140 and oftentimes considerably less good (or bad) is sufficient to justify the curtailment of speech. supra note 3. Dennis v. and their present value should be determined using some discount rate. Silencing a speaker is preferable to a blood bath. Crime Speech. 93–96. 65 or 95 percent or whether it will materialize in two days or two weeks. it seems that such a formulation captures commonsense morality and the legal doctrine in many jurisdictions. it would make no difference whether its probability is.’ discounted by its improbability.freedom of speech 211 its exact probability and timing.. 510 (1951) (“In each case (courts) must ask whether the gravity of the ‘evil. Much of free speech doctrine and theory revolves around setting the appropriate thresholds. Tribe.g.141 In accord with our general tendency 139.139 2. multiplier. should different thresholds be set for different bases of regulation. we discussed three possible shapes of threshold functions: additive. See supra pp. this section discusses three general questions: should the threshold depend on the severity of the harm inflicted by the regulation. If.S. such infringement is permissible if its (relevant) net benefit surpasses a certain threshold. supra note 2. and combined. United States. and should different thresholds be set for different categories of speech. e. 494. See also Greenawalt. justifies such invasion of free speech as is necessary to avoid the danger”). (b) The Threshold’s Shape In chapter 4. 140. the harms that meet the thresholds should be multiplied by their probability. 141. at 853. The Threshold (a) General The distinctive mark of deontologically constrained CBA is that whenever an act or a rule infringes a deontological constraint. at 116. for instance. See. . Some courts do in fact employ comparable formulations. a certain expression is expected to bring about serious violence within a relatively short period and with a sufficiently high probability. Without getting into intricate doctrinal and theoretical issues. While courts and legal scholars unsympathetic to formal analysis rarely formulate their criteria in such a way. According to another possibility. 341 U. say. scientific. If. thus seriously harming freedom of expression. we believe that a combined function is most appropriate in the present context as well. Likewise. should be much higher in the first scenario. Thus. may leave the protestors with more or less reasonable alternatives.” rather than their communicative impact. Despite the fact that these restrictions pertain to the place of expression. and K and K ′ are the additive and multiplier thresholds. postponing the demonstration for a longer period would make it pointless. the larger the net benefit necessary to render them permissible. A multiplier or a combined threshold would reflect the judgment that the net benefit of forcing the postponement of the demonstration.142 In the same vein. and notwithstanding judicial reasoning focusing on their “secondary effects. limiting the time or place of a political demonstration. these restrictions are content-based. necessary to justify it. aesthetic. K ′. . formalizes the notion that the stricter the limitations on campaign finance. thus causing a much smaller harm. respectively. the amount of (relevant) net benefit necessary to render suppression of speech permissible should be a function of the actual or probable harm inflicted by the infringing act. such that: (2) T = (B – H) – (K + K ′H) where B is the total (social. due to its noncommunicative impact. supra note 2. Under different circumstances. for instance. The less stringent the zoning restrictions. economics. and morality to favor combined threshold functions. or other) benefit of the challenged speech: H is the speech’s relevant harm. at 952. discounted according to the applicable excluders discussed above. the smaller the net benefit necessary to justify them. Moderate limitations on election campaign finance inflict smaller harm on people’s autonomy and dignity than a total banning of election campaign or harsher restrictions on its financing. the same postponement may only entail minor inconvenience. zoning ordinances restricting the location of establishments hosting nude dancing and other adult entertainment adversely affect freedom of expression to a lesser extent than a complete ban on such establishments. The harm to people’s autonomy and dignity caused by speech regulation varies from case to case. Tribe. the protesters strive to influence a decision that is expected within forty-eight hours. The multiplier component of a combined function.212 law. yet the threshold would be positive even if infringing the constraint causes no harm. 142. 144. may be deemed unharmful. content-neutral limitations. and intrinsic significance of the mental states of governmental bodies. supra p. 413 (1996).143 When a law or an action brings about undesirable results.144 and avoids the difficulty of handling multipurpose actions and legislation. verifiability. See also Posner. and so forth. or whose potential audience already knows. Posner. This position skirts the debate concerning the observability. it adds nothing to note that its motivation was probably inappropriate (selfishness in this example). there is a fundamental difference between Track One. (c) Different Thresholds for Different Bases of Regulation According to Posner’s formula. 146. Elena Kagan. Frontiers. even such regulation should only be permitted if its net benefit surpasses a certain threshold. supra note 36. This notion may be formalized using the additive component K. Private Speech. 145. at 70.145 This feature of standard economic analysis of speech regulation squarely contradicts the legal doctrine in the United States and elsewhere. of the combined threshold function. aiming at reducing traffic congestion. content-based limitations on speech which aims to suppress certain points of view or an open debate of certain issues. such as silencing criticism of the government. and Track Two.freedom of speech 213 At least theoretically. Plausibly. supra note 34. at 751–52. According to prevailing legal norms. Public Purpose: The Role of Governmental Motive in First Amendment Doctrine. 145. Cf.146 Content-based regulation (including an apparently neutral but ill-motivated regulation) is subject to a stringent standard of judicial review known as “strict scrutiny. See supra pp. 63–70. excessive noise in residential neighborhoods. Posner. L. Prohibiting the dissemination of information whose possessors do not wish to disseminate anyway. It does not affect the legitimacy or constitutionality of speech regulation. Rev. the purpose or motivation underlying a legislative or administrative curtailment of free speech is basically inconsequential. 63 U. Chi. reflecting commonsense morality. . in line with standard CBA.” Such regulation would only be deemed constitutional if it is 143. speech regulation may cause very little or no harm at all. supra note 36. content-neutral regulation does have a disparate effect on different people. allowing the former is much more harmful to speech diversity. Content-neutral regulation is more likely to have an indiscriminate effect on the expression of different views. and morality “narrowly tailored” to further a “compelling state interest. 150. economics. see generally supra pp. supra note 2. regulation of the noncommunicative impact of expressions—its time. In that respect. at 313–16. For instance. supra note 50. as it 147. Alexander. deterrence of abuses of authority. employing a balance-of-interests test. compatible with CBA. which as a side effect restricts the dissemination of pamphlets in certain places. place. and manner—which affects freedom of speech only incidentally. Hence. See supra note 11 and accompanying text. and so forth. Tribe. consequentialist justifications of free speech emphasize the importance of diversity of expressions for the advancement of truth discovery. . Ordinarily. similarly proscribe a politically motivated flag burning. the costs of content-based regulation are much greater than those of a content-neutral one. at 38–51. there is a positive correlation between the purpose of actions and their effects. 181. Free Speech. See supra p. 151. who can afford access to the electronic media. for example. supra note 34. at 745. as there are instrumental reasons to consider the regulator’s motives. 148.”147 In contrast. However.148 This remarkable gap between economic analysis and prevailing norms may be narrowed to some extent. banning the distribution of handbills has a much greater effect on the poor than on the affluent. See Raz. though. supra note 36. facilitation of liberal democracy. Posner.214 law. 117–22. a law aiming to silence speech is much more likely to have this effect than a law aiming to regulate the safety of transportation. Sometimes.151 A law forbidding the burning of the American flag to protest governmental policies and one forbidding the burning of any object on city streets for safety reasons. On the expressive effect of legislation. No such message is sent when expressions are silenced as a by-product of regulation which truly aims at attaining other goals. supra note 4. Posner. is that a truly undiscriminatory restriction saves the court the task of assessing B. is subject to a much less exacting review. 149. at 979–81. along with its direct effect on the ability of people to express their views.152 Another argument favoring the more lenient judicial approach to content-neutral restrictions. a content-based regulation sends a message regarding the legitimacy and worth of those views. each expression’s benefit. 152.149 In addition. at 17.150 Moreover. this is not the way the legal doctrine—viewing freedom of speech as a basic human right—is structured. however. Thus. they provide foundational justifications for a deontological factoral normative theory of free speech embracing the Track One/Track Two distinction. than when they cannot express themselves due to Track Two restrictions. cfm?abstract_id=1479051). On the contrary. We concede that Track Two jurisprudence may be understood as either reflecting a consequentialist. balance-of-interests approach (where “speech interests” are accorded greater 153. In addition to the use of purposes as proxies for expected outcomes. at 17. More important. See supra pp. Beyond the Bottom Line: The Complexity of Outcome Assessment (working paper. one should add.ssrn. which basically corresponds to the well-known intending/foreseeing distinction. supra note 34. a consequentialist can take the intended/foreseen harm distinction into account without transcending act-consequentialism. they do not deny its importance. suppression of all political speech does not discriminate between different views and thus does not require weighing their specific value. save the court the need to assess the overall value of the expressions silenced by the regulation. . or institutional arguments successfully accounts for the centrality and significance of the distinction between Track One and Track Two restrictions of free speech under current legal norms. Posner. It is doubtful whether standard economic analysis. a sophisticated theory of the good that takes actions and motivations into account) may thus accommodate this distinction.155 But even if it could. In contrast. the risk of error by the regulator).154 An improved theory of human well-being (and even more so. which in turn increases the risk of judicial error (and. Free Speech. Putting this concern aside for a moment. To be sure. 154. can adopt such a theory of the good. 155.freedom of speech 215 equally applies to all expressions. it is doubtful that any of the above instrumental. to the extent that the above arguments provide consequentialist justifications for treating intended and unintended restrictions of speech differently. Cf. 30–32. for example. a content-based regulation necessitates such assessment.153 The last argument raises the general concern (mentioned earlier and discussed in some detail below) that CBA requires one to assess the benefits of different expressions. resting on a preferencesatisfaction theory of human welfare. second-order. available at http://papers.com/sol3/papers. Daphna Lewinsohn-Zamir. It does not. a consequentialist may plausibly maintain that people’s well-being is decreased to a greater extent when they are silenced intentionally. due to their views. supra note 2. at least in the United States. intended silencing of speech. The threshold for Track One. content-neutral. there is a requirement of proportionality. even where government would justify such intrusion on personal liberty as a pursuit of first amendment values”). should be much lower. in deontological morality. The difference between Track Two and Track One regulation is not that the former is not subject to a deontological constraint against actively suppressing speech but rather that the size of the threshold is very different. harming their autonomy and dignity—then the distinction between Track One. From a moderate deontology perspective. the central role this distinction plays in the legal analysis of free speech lends support to the proposition that freedom of speech is grounded. the fact that some harm is actively inflicted as a mere side effect of attaining other goals does not necessarily render it permissible. 160. However. unintended restrictions. it is precluded by the amendment from compelling expression or suppressing expression. inasmuch as the constraint against suppressing free speech is a particular manifestation of the more general constraint against actively/intentionally harming people—in the present context. based on the noncommunicative impact of speech. the jurisprudence takes a distinctively deontological shape. and morality weight) or as embodying a moderate deontological approach setting a relatively low threshold that has to be met to justify the restriction. As further explained below. It does not primarily aim at maximizing total speech but rather sets a constraint against suppressing speech.g. See supra p. content-based. economics. 282. and Track Two. to a considerable extent.156 From a deontological perspective. The threshold for Track Two. 157. e. merely foreseeable silencing. is clearly justified.216 law. .157 A sincere motivation to keep the streets clean or avoid traffic congestion does not justify each and every curtailment of free speech. when it comes to the core. See.. Tribe. In fact. As aptly described by Harry Kalven. we favor the latter understanding but do not deny that the former is conceivable as well. infra p. This conception is reflected in the legal doctrine. intended restrictions of speech based on its communicative impact should be high. Even in such a case. in weighing the conflicting considerations bearing on the permissibility or constitutionality of Track 156. We thus maintain that a fruitful analysis of speech regulation should establish different thresholds for different bases of regulation. at 835–36 (“While the government may foster the values of free expression found in the first amendment. Track One analysis of freedom of expression. Harry Kalven. such that even if the regulation’s total benefit exceeds its total cost. as any law may affect who says what to whom. Rev. Cf. supra note 50. and with what effect. supra note 36.freedom of speech 217 Two regulation.” Posner. From a moral point of view. supra note 34. and tort law. Louisiana. 1. threshold. it would still be impermissible unless its net benefit surpasses some positive. as compared to its direct costs. 28. See also Posner. at 13–19. at 81–82. this framework assumes that governmental motivations and purposes are in principle observable. the permissibility of each and every legislation and administrative action should therefore be subject to a moderate deontological threshold. Alexander. An alternative. speed limitations denying people the experience of driving faster. 162. It includes income tax on composers and broadcasting stations. Jr.161 Track Two thus arguably includes not only restrictions on the use of amplifying devices in residential neighborhoods or the burning of draft cards.159 This analysis implies that the same restriction of speech may be justified if brought about as a side effect of pursuing a legitimate goal. an apparently content-neutral regulation. Ct. at 743–44.158 Putting a thumb on the scale is tantamount to setting a modest threshold. 159.162 This conclusion is however unacceptable from both a moral and a legal perspective. though relatively low. and the entire body of property. verifiable.. Such a constraint does not apply when those remote. instrumental explanation for putting a thumb on the scale (in both Track One and Track Two cases) is that the vague nature of the benefits of speech. whose true purpose is to repress certain expressions due to their content. at 794–804. 160. and morally significant. supra note 2.160 What legislative and administrative acts should be subject to a Track Two examination? As forcefully demonstrated by Larry Alexander. 161. 1965 Sup. Frontiers. Following the discussion in chapter 3. Tribe. supra note 50. Alexander. . The Concept of the Public Forum: Cox v. 84. indirect effects have not occurred to the governmental decision-maker. supra note 2. one should put a thumb on the speech side of the scale. yet unjustified if intended. and plausibly not even 158. Accordingly. Presumably. at 791. contract. it would imply an implausible expansion of the deontological constraint against curtailing free speech. justifies a “strategy of forward defense. See also Tribe. is subject to Track One analysis. which reduces the incentives to produce and broadcast music. at 20–37. practically any legal norm or governmental action has some effect on the expression or reception of some information by some people. and morality when they have occurred to her. and so forth. When the adverse effect of a Track Two regulation on free speech is indirect. Posner. place. 185.” In contrast. Both morally and legally. although it is sometimes difficult to draw the exact line of demarcation between those cases to which a Track Two threshold function should apply and those to which it should not. this is. only because regulators cannot be trusted to accurately and impartially make such evaluations and because such assessments are costly. 164. this differentiation arguably rests on economic grounds. (d) Different Thresholds for Different Categories of Speech As already described. the only cases to which Track Two analysis should apply are those that have actually been subject to such analysis: truly content-neutral restrictions on the time. such as political speech. commercial. It may be added that. are likely to be underproduced. or manner of expressive activities.163 Rather than assuming that certain types of speech— such as political or academic—are necessarily more socially valuable than others—such as commercial or pornographic—the costs and benefits of each speech should be specifically assessed. the smaller the adverse effect of regulation on free speech.218 law. Commercial speech deserves less protection because unlike other speakers. other types. according to standard CBA.164 163. Free Speech. See supra p. economics. may have considerable positive externalities. supra note 34. remote. supra note 34. Posner. Frontiers. at 73–77. the commercial speaker “is expected to recoup the full economic value of his speech. this difficulty is not significant. and hardly noticeable. and thus in the absence of legal protection and encouragement. To the extent that the law forbids regulators to engage in a case-by-case evaluation of the expected benefit of each expression. Inasmuch as the law affords greater protection to certain types of speech than to others. standard CBA of speech regulation does not distinguish between different categories of speech: political. at 19–24. scientific. . the lower the pertinent threshold. the appropriate threshold would thus be correspondingly trivial. 85–86. artistic. From a legal policy perspective. examining the constitutionality of every legal norm or administrative action based on its effect on free speech would be unreasonable. As explained above. At the same time. in contrast. A deontologist may reasonably hold. the regulator need not—and must not—assess the value of each political speech or work of art. Tribe. Political speech pertaining to governmental issues. there are normative judgments—such as aversion to racism and to illegal violence—to which legal systems are committed regardless of the judgment of any particular regulator. Sunstein. supra note 8.166 Grounding evaluative neutrality solely in regulators’ incompetence and partiality is hardly convincing.167 Hence. and obscenity is hardly protected at all. See supra p. 167. supra note 70. it rests on equal respect for people’s autonomy and dignity as speakers and listeners. A competing rationale for both evaluative neutrality and treating different categories of speech differently is based on deontological morality. at 8–11.165 Two distinctive features of freedom of speech law in the United States and elsewhere are a commitment to evaluative neutrality and the application of different standards of judicial review to different categories of speech. enjoys lesser protection. supra note 2. Shaman. the decisive criterion need not be the benefit expected from any speech but rather the harm to people’s autonomy and dignity inflicted by silencing speakers or denying listeners access to information. speech should not be suppressed even if it has no benefit or has negative benefit. it stands to reason that the harm to people’s autonomy and dignity from being silenced or denied access to information varies from one category of speech to another. it cannot plausibly be due to its expected positive externalities. 166. Even if one does not trust the judgment of regulators. But for cases in which the expected costs from any speech surpass a certain threshold. Schauer. 192. at 282–96. According varying degrees of protection to different political views or to different works of arts is incompatible with the notion that people deserve equal respect. This conception is compatible with both evaluative neutrality and with categorization of speech. at 890–928. . At least to some extent. supra note 3. for 165. Thus. as well as ordinary literature and art (even containing sexually explicit material). enjoy a high degree of protection. 121–65. Deontologically motivated protection of free speech does not rest exclusively on the positive outcomes of free speech. If speech advocating racial hatred or lawless action deserves any protection at all.freedom of speech 219 This position is hardly compatible with prevailing moral intuitions and extant legal doctrine. Commercial speech. Redish. 765 (1978). 435 U. 170. one’s autonomy is harmed to a greater extent if one is denied access to political arguments or works of art than if one is denied access to commercial speech or obscenity. see First National Bank of Boston v. this approach does not require differentiating between different expressions or different categories of speech according 168. Shiner also argues (id. . 169. at 60–68 (arguing that commercial speech significantly contributes to listeners’ autonomy and thus deserves constitutional protection). and politics is more important to one’s autonomy than expressing oneself through commercial speech. related to the various goods promoted by free speech. supra note 70. 211–13. Similarly. supra note 65.169 We nevertheless find this argument quite compelling. Bellotti.220 law. at 192–38) that constitutional protection of corporations’ commercial speech can neither be derived from hearers’ rights.172 it makes sense to provide greater protection to expressions and information in those spheres of life where suppression is expected to be more harmful to people’s autonomy and dignity. e.. that expressing oneself through art. however.170 A deontologist need not argue that these differences constitute the only rationale for the dissimilar treatment of different types of speech. See. 8 J. 171. Leslie Green.168 These judgments are not uncontestable. 172. Pol.g. dignity. the size of its threshold) should be a function of the harm inflicted by such suppression. this analysis implies that the threshold may be lower whenever the speaker is not a human being but an organization or a corporation (or.171 There may be additional reasons for such differentiation. compared to the alternatives. 27 (2000) (arguing that homosexual pornography significantly contributes to homosexuals’ self-realization and autonomy). One may argue that commercial speech and pornography are not less important to the speaker’s autonomy. and self-realization than artistic or political expressions. the stringency of the constraint against suppressing speech (that is. at 137–44. literature. Baker. Importantly. Since. at 163–91. and morality example.S.” Id. supra note 82. Shiner. at 194–224 (“[Commercial speech] lacks the crucial connections with individual liberty and self-realization that are central to justifications for the constitutional protection of speech. 68–76 (criticizing the exclusion of obscenity from the ambit of constitutional protection). For different positions on whether corporations should have a constitutionally protected right of free speech in political matters and on the scope of this right. economics. Supra pp. Phil. see Sunstein. Inasmuch as one focuses on the speaker’s dignity (rather than on the listener’s autonomy). even that in this case. On the difficulties facing a justification of the categorization of types of speech on the sole ground of their different contribution to speakers’ or listeners’ autonomy. supra note 73. there is no deontological constraint against speech regulation). Pornographies. Human Liberty. at 196). rather than assessing the social benefit of each expression.. given the great demand for pornography. since less people value them. L. Instead of examining whether the net benefit of suppressing a certain speech (that is. one should examine whether its benefit (that is. and some actually detest them. Kenneth L. for example. 20.g. 43 U. or the benefit from categories of expression.freedom of speech 221 to their social value—a differentiation that is arguably at odds with the basic premises of freedom of speech. this subsection examined the factors that should determine the size and shape of the threshold. so to speak. because it implies that unpopular views would get lesser protection than popular ones. Most probably. This method is particularly problematic in the present context.173 This line of reasoning implies that in deciding whether to curtail an expression. e. the benefit of suppressing the speech) meets the threshold. Democracy. replacing CBA with CA). The First Amendment. Equality as a Central Principle in the First Amendment. Only if the expected harm is large enough to meet the threshold (H > K)—a threshold whose size varies from one category of speech to another based primarily on the contribution of each category to people’s autonomy—may a speech be justifiably suppressed. (e) Summary Following the discussion of the relevant benefits that should affect the permissibility of suppressing speech (in the previous subsection). compared to poetry. and Romance 39–44 (1990). Karst. a policy-maker should focus on the speech’s expected harm. this means that the policy-maker may focus on the speech’s costs while disregarding its expected benefits (thus. Standard CBA. Chi. ordinarily assesses costs and benefits by aggregating people’s preferences. We conclude that different thresholds should apply to different speech regulations according to their basis (intended or unintended) and 173. Rev. See. This implication contradicts the very notion of freedom of speech. as well as deontologically constrained CBA. using aggregation of preferences to assess the value of speech would also result in granting pornography particularly strong protection. . Within the context of deontologically constrained CBA. Such modification also has an important methodological advantage. Shiffrin. the benefit of suppressing the speech minus the benefit of the speech itself) meets the threshold. Steven H. 30–35 (1975). based on extensive inquiry into the exact circumstances of different areas of expressive activities in different societies. Within each category. we illustrated this 174. . (2) the (net) benefit of suppressing the speech will meet a certain threshold.222 law. 3. is required to determine the incidence and exact shape and stringency of the appropriate threshold functions. 198. These are but preliminary. and the choice between silencing dangerous speech and combating it by more speech or by other means depends on the cost effectiveness of each means. all costs are taken into account. and morality according to the extent to which they adversely affect the free expression and reception of ideas and information. education. economics. we mentioned that a common justification for the imminent or present danger requirement is that future harms may be avoided by persuasion. tentative observations on how threshold functions could and should be constructed. primarily on the basis of each category’s contribution to people’s autonomy and dignity. then suppression is warranted. A detailed normative analysis. Choosing Among Permissible Courses of Action In our discussion of chronologically remote harms. Deontology. Different thresholds should apply to different categories of speech. may require that (1) some of the costs and benefits of the speech will be ignored in judging the permissibility of its suppression. Supra p. and other means that do not entail the curtailment of free speech. in contrast. and if—all things considered—it is cheaper to prevent these harms by silencing the speech than by providing counterarguments or taking preventive measures. Within standard CBA. evaluative neutrality is mandated by (among other things) the duty to treat people fairly and with equal respect. prevention. 174 Whether or not this argument justifies the imminence requirement (and whether one endorses this requirement at all). If the expected harms of a certain speech are greater than its expected benefits. and (3) the choice between an infringing act that meets the threshold and a noninfringing act (or an act infringing another constraint) will reflect the lexical priority of some values over others. In chapter 4. it is important to position this argument within the broader framework of the consequentialism/deontology debate. Freedom of Assembly and the Hostile Audience in Anglo-American Law.175 While moderate deontology need not hold that killing the one person is impermissible whatever the alternative monetary cost. its availability may render an otherwise justifiable suppression of speech impermissible because “more speech” infringes no constraint. Comp. L. 177. 75 Mich. Hostile-Audience Confrontations: Police Conduct and First Amendment Rights. Another example is speech that is expected to bring about imminent spectator violence. As demonstrated elsewhere in the book. Note. See supra pp. it may reasonably hold that the existence of the alternative of attaining the same benefit without infringing any constraint renders an otherwise permissible infringement impermissible. Barnum. such silencing would be impermissible if violence and disorder may be prevented by other means. may either be considered separately (after determining the permissibility of infringing acts using a threshold function that disregards alternative measures) or using a threshold function that examines the marginal net benefit of the infringing act.176 Finally. 176. J.000. given alternative courses of action. infra pp. 81–83. See supra pp. 59 (1981). whenever “more speech” is expected to effectively counteract a harmful speech. such limitations are unacceptable if the costs of controlling traffic or cleaning up handbills are not unreasonable. Rev. The prevention of impending disorder and violence by a hostile audience angered by a speech may sometimes justify the silencing of otherwise protected speech. and traffic congestion may warrant limitations of free speech in the absence of alternative ways to cope with these adverse effects. L. assuming—as we do—that content-neutral restrictions on expression infringe a deontological constraint (with a relatively low threshold). even restrictions whose net benefit meets the threshold may be deemed impermissible if the good produced by the restrictions may be obtained by other means. 29 Am. See also David G. 346–47. noise. . Thus. 155–56.freedom of speech 223 point using a hypothetical choice between saving a sufficiently large number of lives by deliberately killing one person and saving the same number of people by spending $10. such as reasonably employing police powers to control the audience and maintain order. 180 (1976). while the costs of certain expressive activities in terms of litter. this notion of lexical priority between infringing and noninfringing acts and between acts infringing different constraints.000.177 175. Similarly. However. 149–50. and 169–70. Deontologically constrained CBA of free speech leaves much room for normative deliberation. This discussion revealed that while a purely consequentialist approach is likely to yield underprotection of freedom of speech.224 law. this chapter did not provide a comprehensive analysis of the topic. the discussion of some of these dilemmas and choices demonstrated the fruitfulness of a deontologically constrained economic analysis of the issue. The analytical framework offered in this chapter highlighted this aspect. taking into account the truly important factors and their interrelations. Hopefully. permits curtailing free speech merely because such curtailment would enhance social welfare even further. which may lead to different conclusions. Conclusion Constitutional protection of freedom of speech enhances social welfare in various ways. There is a moral and legal constraint on suppressing speech. and morality • F. A consequentialist analysis of free speech thus misses an important aspect of the issue. The discussion did not even exhaust the pertinent substantive dilemmas and methodological choices involved in constructing threshold functions to determine the permissibility of speech regulation. economics. however. Neither ordinary morality nor prevailing legal norms. . our framework need not result in more stringent protection of free speech than is currently provided in any liberal democracy. Due to the vast complexity of free speech doctrine. Council Directive 2000/78/EC of 27 November 2000. and the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination on grounds of physical or mental limitations. or sexual orientation. religion. 2. For example. or both—on various discriminatory practices of private actors. Similarly. the European Community has initiated infringement 225 .ch/html/menu3/b/d_icerd. Council Directive 2000/43/EC of 29 June 2000. The Equal Pay Act of 1963 prohibits discrimination between employees on the basis of sex. disability. Age discrimination is prohibited by the Employment Act of 1967. This process has not been uniformly applied. civil remedies.2 Discrimination is prohibited in other spheres as well. publicly funded education programs (Title VI of the 1. Introduction in recent decades. color.1 In the United States. Article 119. religion or belief. liberal democracies have adopted a growing number of prohibitions—enforced by criminal sanctions. including. All EU Member States were due to have transposed these Directives into national laws by 2003. in 2000. or national origin. sex.htm. Establishing a General Framework for Equal Treatment in Employment and Occupation. federal laws prohibiting discrimination by private actors were enacted prior to the Convention. the European Community enacted two Directives (pursuant to Article 13 of the Treaty of Amsterdam of 1997) aimed at protecting people from discrimination on grounds of race. An important landmark in this respect was the entrance into force in 1969 of the International Convention on the Elimination of All Forms of Racial Discrimination. age. which requires member states to take measures to prevent discrimination by private actors. Title VII of the Civil Rights Act of 1964 proscribes discrimination in the labor market on the basis of race. and in 2007.• eight Antidiscrimination Laws • A. available at http://www. Implementing the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin.unhchr. These provisions add to the prohibition on sex discrimination that was set forth in the Treaty of Rome in 1957. ethnic origin. Article 3(1) of the International Convention on the Elimination of All Forms of Racial Discrimination. in the United States. including social security. we will demonstrate our thesis mainly with regard to employment antidiscrimination laws. economics. education. health care. it does not assign intrinsic value to individual freedom. Capitalism and Freedom 113 (1962).”4 violating the private-public distinction which excludes the private sphere from the domain of legitimate state intervention. The enactment of antidiscrimination laws clearly rejected this position. Standard economic analysis is based upon the implicit normative baseline that prohibiting a discriminatory practice may be justified only if the relevant practice is inefficient. procedures against the noncomplying states. Milton Friedman. As such. As in other areas discussed in this book. Milton Friedman goes so far as to argue that antidiscrimination laws are “similar in principle [to] Hitler Nuremberg Laws. See http://ec. we explore here the feasibility and desirability of integrating these two modes of inquiry. In the European Union. but it did not render the debate moot. The ongoing interpretation and application of these laws continue to reflect the debate concerning their legitimacy. Forbidden Grounds: The Case Against Employment Discrimination Laws (1992). limiting their freedom to run their business as they see fit.”5 sacrificing liberty in the name of what he sees as the majority’s preference for equality. autonomy.3 While the arguments in this chapter do apply to the latter areas. often costly. 4. human dignity. Some argue that antidiscrimination laws constitute an invasion of what Richard Epstein labels as “forbidden grounds. Epstein. Employment antidiscrimination laws often prevent employers from expressing their preferences toward members of certain groups. and morality Civil Rights Act). while the Framework Directive that prohibits discrimination on wide range of grounds applies only to employment. 3. the Race Directive applies to various spheres of activity.226 law.htm. and lending (the Equal Credit Opportunity Act of 1974). housing. These norms also proscribe employers from applying certain profit-maximizing business practices and even require them to take active. Attempts to consider these values in roundabout ways result in confusion and indeterminacy. 5.europa. . measures to “accommodate” the needs of certain (actual and potential) employees.eu/employment_social/ fundamental_rights/legis/lginfringe_en. The extensive academic discussion on the legitimate scope of antidiscrimination laws includes two central schools of thought: economic analysis and deontological inquiry. housing (the Fair Housing Act of 1968). and the supply of goods and services which are available to the public. Richard A. or equality. there is the constraint against harming people by discriminating against them. We do not purport to resolve all the intricate normative questions it raises. Section B sets the stage for the theoretical discussion by providing a brief. as if the normative economic analysis is used to substantiate predefined. treating people equally is not merely “a majority’s preference. nonconsequentialist convictions about liberty and equality. In fact. On the other hand. there is the constraint against limiting people’s freedom. first. but a moral duty.” as suggested by Friedman. Our modest aim is to point out the inherent difficulties of applying unconstrained CBA to this issue and to demonstrate how deontologically constrained CBA may contribute to understanding the pertinent dilemmas.antidiscrimination laws 227 The indeterminacy is partly due to disagreements regarding what constitutes social welfare: should the satisfaction of racist or otherwise objectionable preferences be taken into account in calculating social welfare (so-called “laundering preferences”). plausibly. We suggest that such analysis not only better captures the relevant normative questions but also coheres with current legal doctrines. This chapter proposes an analytical framework for addressing this last question. Deontological analysis of antidiscrimination laws maintains that discrimination—treating people less favorably on the basis of such characteristics as race or gender—is inherently wrong. in the labor market—an additional question arises. Clearly. offending their dignity. namely whether the costs involved in securing equal treatment are high enough to override the constraint. including the freedom to choose with whom to interact and contract. and should the preferences of people who neither suffer directly from discrimination nor engage in discriminatory practices (“disinterested preferences”) be taken into account. In particular. and depriving them of various material and nonmaterial goods. employment discrimination is an extremely complex issue. one may get the impression that the methodological choices regarding the measure of social welfare occasionally reflect a “pick and choose” strategy. while we shall discuss the relationships between the deontological constraint against discrimination and attributing intrinsic value to equality as an element of a theory of the good. general description . Where the constraint against discrimination takes priority—such as. Accordingly. thereby diminishing their autonomy. Assessment of any antidiscrimination legislation requires. When the latter constraint trumps the former—such as in the sphere of intimate relationships— proscribing discrimination is unjustified. to prioritize between two conflicting constraints. The reminder of this chapter is comprised of four parts. we shall not analyze the latter in detail. On the one hand. Following much of the economic analysis of antidiscrimination laws.6 making workplace accommodations to enable individuals to qualify for the job. Section C then utilizes positive economic analysis to identify possible reasons for the continued existence of discriminatory practices in competitive markets. Rev. antidiscrimination laws go further and proscribe also “rational” discriminatory practices. See. Reva B.g. L.C. Current Legal Norms The basic antidiscrimination requirement is that businesses and employers refrain from acting on the basis of racist. e..g.” and Title VII of the Civil Rights Act’s protection of religion. • B. 7. economics. Reasonable . it demonstrates how current legal norms actually incorporate threshold constraints. that is.S. 95 Harv.. 958–59 (1982). these include the provision set forth in Title I of the ADA..S. Rev. and other irrational sentiments based on stereotypes of certain groups. requiring employers to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. and morality and typology of antidiscrimination laws. This section delineates the constraint against discrimination and its proper scope given conflicting constraints. Stewart J. § 2000e-2(k). It then examines the relationships between this constraint and the distributive goals of antidiscrimination norms. including an implicit duty to accommodate an employee’s religious observance or practice. 101–02 (2000). These requirements include avoiding business practices that cause a “disparate impact” on certain groups. Sometimes. requiring employers to bear the costs of integrating members of particular groups. 77. 945. Often. Elizabeth Bartholet. Willborn. Section D critically discusses the standard. L. Discrimination in the Eyes of the Law: How “Color Blindness” Discourse Disrupts and Rationalizes Social Stratification. Siegel. 42 U. Finally. Section E then incorporates deontological constraints into the economic analysis. 88 Cal. Schwab & Steven L. Griggs v. e. Duke Power Co.228 law. this chapter does not formalize the various arguments mathematically. 432 (1971) (finding that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability”). 401 U. Application of Title VII to Jobs in High Places. See. 95–96. sexist. In the United States. unconstrained economic analysis of antidiscrimination laws.7 and ensuring that members of 6. The law imposes requirements akin to affirmative action. 424. practices that would increase the business profits. antidiscrimination laws not only ban intentional discrimination but go one step further and require employers to avoid a seemingly neutral policy that results in an unequal outcome. Rev. 531 U. religion. 89 Va. 10.C. 69 (1984). supra note 7. and Reasonable Accommodation. to grant preferential treatment to any individual or to any group because of the race. however. cert. King & Spalding.11 Accommodation of Workplace Disabilities. in certain conditions. See. L. Hishon v. Samuel R. denied. Supreme Court decided. e. 53 Duke L. 579 (2004). 8. 207 F. Antidiscrimination and Accommodation. 1989. color. 1998) and Northern Ireland (under the Fair Employment Act. 1060–67 (2005). L. 153 U. 246–51. L. § 2000e(b). 1190 (2001) (Judge Easterbrook holding that Title I of the ADA is not within Congress’s power under Section 5 of the Fourteenth Amendment. 46 Duke L.8 These requirements may be seen as a cure to (past or present) hidden or even unconscious forms of discrimination against some groups. . sex. 1 (1996). 79 (2003). Mark Kelman. that Title VII also applies to partnerships and governs their decisions of whom to include as partners. The Procedural Posture of Minimum Employee Thresholds in Federal Antidiscrimination Statutes. In the United States. Rev. 825 (2003). The EC Directives do not include exemption based on a minimum number of employees.3d 945 (7th Cir.S. Rev.C. and the Politics of (Disability) Civil Rights. Karlan & George Rutherglen. 115 Harv. See also Stewart & Willborn. Michael Ashley Stein. Disabilities.9 Others see it as fundamentally similar to the classic discrimination models. 9.10 Antidiscrimination laws limit and qualify the prohibitions on discrimination in various ways. EC Employment Law 336 (3d ed. Bagenstos. Michael A. such a requirement is applied in other countries. Stein. Some judges and legal scholars have therefore argued that the accommodation requirement extends beyond the antidiscrimination principle. 72 U. employers are required. the federal employment antidiscrimination laws apply only to firms employing at least fifteen workers.S. 642 (2001). Rev. L. 1047. such as Israel (Equality to Persons with Disabilities Act. Board of Governors. & Mary L. Market Discrimination and Groups. 44 Wm. Discrimination. Rev. § 12111.J. . . Pamela S. or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of [such group] employed by any employer .J. The U.g.” Accommodation.S. 53 Stan. the European Court of Justice held that even an exemption for employers who do not employ more than five workers is inconsistent with the European Directive on sex discrimination. § 2000e-2(j)). Christine Jolls. Same Struggle.S. “Rational Discrimination. 467 U. However.C. Chi. Pa. Title VII of the Civil Rights Act explicitly excludes such a requirement by stating that “[n]othing contained in this subchapter shall be interpreted to require any employer . On these provisions see generally Jeffrey A. 2000). .antidiscrimination laws 229 certain groups are “fairly represented” in the relevant workforce. However. 42 U. Moreover. 1197 (2003). . See Catherine Barnard. to secure fair participation in employment by members of the Protestant or the Roman Catholic communities.S. 833 (2001). Rev. L. 2006)). Different Difference: ADA Accommodations as Antidiscrimination.. Mandell. or as a response to illegitimate favoritism of other groups. See also infra pp. 42 U. 11. since it “requires employers to consider and to accommodate disabilities. they apply irrespective of actual proof of such hidden or unconscious discrimination. Erickson v.” (42 U.S. The Law and Economics of Disability Accommodations. and in the process extends beyond the antidiscrimination principle”). a religious corporation.”15 Third. . Michael J. Bryant. sex. Sullivan Et Al.C. 35 U. in the United States.S. or national origin (but not race) is permitted when such characteristic “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. 42 U.. [1983] ECR 3431. (ii) a merit system. See also 1 Charles A. 15. Justifiable Discrimination in the News and Entertainment Industries: Does Title VII Need a Race or Color BFOQ?. Rev.”14 Second. L. educational institution. direct discrimination on the basis of religion. Frank. “where such payment is made pursuant to (i) a seniority system. Justifiable Discrimination: The Need for a Statutory Bona Fide Occupational Qualification Defense for Race Discrimination. 42 U.” 29 U. L. § 2000e(b).C. 483 U. association. 86 F. most notably religious institutions12 and “bona fide” private membership clubs. 42 U. See also Karen Engle. § 2000e-2(e)(1) (emphasis added).13 Then there are limits to the burden a business is expected to bear in meeting the antidiscrimination requirements. 14. Title VII of the Civil Rights Act sets three types of such limits.S. Rev.05[A] (3d ed.C. 2002). 12.S. 16.S. Employment Discrimination: Law And Practice § 3. See 42 U.C. or society of its activities”). The Equal Pay Act permits employers to pay a person wages that are different than those that are paid to employees of the opposite sex for equal work. § 2000e-2(k)(1)(A)(i) (emphasis added). 42 U.C. 33 Ga. § 206(d).C.F. Rev. .C. L.S. association. color. Chicago Club.230 law.S. 76 Tex. educational institution. the employer is required to “reasonably accommodate” an employee’s religious observance and practice.S. or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation. § 2000e-(j) (emphasis added). (iii) a system which measures earnings by quantity or quality of production.S. See also EEOC v. § 2000e-1(a) (“This subchapter shall not apply to . For instance. 13. of the Presiding Bishop of the Church of Jesus Christ v.”16 The last exemption is also applied under the ADA—an employer is exempt from the duty to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability” if making it “impose[s] an undue hardship on the operation See Case 165/82 Commission of the European Communities v. 1996). . Corp. § 2000e-2(e). as far as the required accommodation does not impose “undue hardship on the conduct of the employer’s business. 317 (1997). Amos. an employment practice that causes a disparate impact on the basis of race. or (iv) a differential based on any other factor other than sex. religion.3d 1423 (7th Cir. 211 (1998). First. and morality Some exemptions are granted to certain types of organizations. 42 U. 327 (1987).S. United Kingdom of Great Britain and Northern Ireland. economics. 473 (2001). William R. sex. The Persistence of Neutrality: The Failure of the Religious Accommodation Provision to Redeem Title VII. or national origin is legitimate if the practice is “job related for the position in question and consistent with business necessity. . when considered in light of the factors set forth in subparagraph (B)” (42 U. intentional discrimination can be similarly justified is debated. “an apparently neutral provision.M. to enable a person with a disability to have access to. structure. supra note 8. § 12111(10)(A)).18 • C. unless such measures would impose a disproportionate burden on the employer” (id. Gersen. we briefly present these three possible rationales for discrimination.U. as a rational reliance on statistical correlation between membership in certain groups and relevant economic factors. discrimination in the marketplace conflicts with the goal of profit maximization and is therefore irrational. The ADA defines “undue hardship” as “an action requiring significant difficulty or expense. At first glance.C. e. and functions of the workforce of such entity. 696–713 (2007). where needed . . Donohue III. participate in.C. . at 322–23.19 Discriminatory Preferences of the Business Owner In his influential 1957 book. The duty of reasonable accommodation to people with disabilities requires employers to take “appropriate measures. 82 N. In the following lines. Gary Becker presented a positive economic analysis of workplace discrimination based 17. See. . or the impact otherwise of such accommodation upon the operation of the facility. Article 5).. administrative. L. the geographic separateness. or advance in employment . Markets and Discrimination.S. one should first understand the underlying motivations for discriminatory practices.. For instance. Barnard.antidiscrimination laws 231 of the business.” 18.g. See also Evelyn Ellis. direct discrimination can also be considered a rational response to employees’ or customers’ preferences. The Law and Economics of Antidiscrimination Law. see John J. . 42 U. . For an overview of economic theories of discrimination. § 12112(b)(5)(A) (emphasis added). criterion or practice” which have a disparate impact on members of a protected group is nevertheless permitted if it is “objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary” (Article 1(2)(b)). the type of operation or operations of the covered entity. Jacob E.Y. However. or alternatively. under the EC Directive Establishing a General Framework for Equal Treatment in Employment and Occupation (supra note 2). The Economics of Discrimination. The question of whether direct. EU Anti-discrimination Law (2005). Polinsky & Steven Shavell eds. . in 2 Handbook of Law and Economics 1387 (A. Mark Bell. . 2007).S. 19. including the composition. or fiscal relationship of the facility or facilities in question to the covered entity. Anti-discrimination Law and the European Union (2002). 689.”17 Other legal systems include similar provisions in their antidiscrimination laws. Motivations for Discrimination To assess the desirability of antidiscrimination legislation. Rev. These factors include “the effect on expenses and resources. such an employer is only willing to pay a disfavored worker a wage which is lower than the worker’s marginal productivity. James J. Discrimination. Econ. Heckman & Brook S. See Dan A. Smith. 24. An alternative reason for the survival of animus-based discrimination even in a competitive market is search costs. Chris Stefanadis. Becker. supra note 5. Black. Milton Friedman) have argued that since the market should be expected to solve this problem..232 law.20 Becker pointed out that an employer who hires a disfavored worker incurs not only monetary costs (the worker’s wage) but also a psychic penalty. This explanation implicitly assumes that the relevant market is not “contestable. Donohue III. 72 Am. This psychic “tax” lowers both the demand for disfavored workers and their earnings. 23.25 and the wage gaps between men 20. Contestable Markets: An Uprising in the Theory of Industry Structure. economic. Econ. 1.24 However.L. 79 Am. As a result. 12 J. Sunk Costs. Modern Labor Economics: Theory and Public Policy 407–32 (9th ed. it rules out the possibility of entry of new employers. Ronald G. 5 (1982). Microeconomic Theory 661 (6th ed. 25. Ehrenberg & Robert S. John J. The Economics of Discrimination 14–17 (1957. who do not act on the basis of discriminatory preferences against the disfavored group of workers. 1971). animus-based discrimination must disappear. See also William J. Gary S. and the Latent Contract Market. in 4 International Encyclopedia of the Social Sciences 208–10 (D. Baumol. 13 J. A “contestable market” is a market in which entry and exit are free. the empirical evidence of persistent discrimination in competitive markets (such as the enduring exclusion of blacks from entire industries in southern states prior to the legislation of the Civil Rights Act of 1964. Becker made this assumption explicit in a later work: Gary Becker.22 Subsequent scholars pointed out that if this assumption is relaxed. Epstein. Econ. Friedman. racism. Lab. legal prohibition on discrimination is unnecessary. Rev.”21 that is. 1995). 138 (1989). Contestability. . Discrimination in an Equilibrium Search Model. and one instead assumes that the market is contestable. economics. “even in the absence of price-taking behavior in markets with relatively few firms. at 480–94. or chauvinism. 309 (1995). Rev. at 108–15.. J. 2d ed. as a manifestation of prejudice. Thus. & Mgmt. Contestable Markets and the Theory of Industry Structure (1982). William.23 Some economists (most notably. 2006). 22. 21. Econ. Baumol et al. and morality on the presumption that employers who discriminate are motivated by their animus to those who are discriminated against. supra note 4. perfect contestability provides an ‘invisible hand’ that guides market equilibrium to a competitive-type result [in which wage equals marginal productivity]”: Walter Nicholson. Payner. Strategy 119 (2003). at least in the long run. Determining the Impact of Federal Antidiscrimination Policy on the Economic Status of Blacks. Sills ed. 1968) (arguing that the shortage of entrepreneurial skill prevents the elimination of the discriminating employers). . For a discussion of the effect of market structure on the prevalence of discrimination see. e. 27 Law & Soc. Cf. and mitigating possible misunderstandings. 29. Kenneth Arrow. Chiswick. Becker’s theory “predicts the absence of the phenomenon it was designed to explain. 32. Epstein.”27 This led to alternative explanations for discriminatory practices in the marketplace.g. Econ. Unlike the employer’s animosity. McAdams.. The Theory of Discrimination.31 Profit maximizing firms can thus be expected to either segregate workers by group characteristics or avoid hiring people based on their group membership. 31. improving communication within the organization. 81 J.32 The Search for Truth: In Appreciation of James J. Racial Discrimination in the Workplace: Does Market Structure Make a Difference?. Heckman. Coleman. supra note 4. 97 J. at 60–69. supra note 19. 30. Rel. As pointed out by Kenneth Arrow. Rev. L.antidiscrimination laws 233 and women)26 refute this prediction. Bronars.g. 26.29 and a buyer would only be willing to pay a lower price when purchasing the good from a disfavored salesperson. Catering to Prejudiced Employees and Customers Discriminatory practices may respond to the racial or sexist preferences of the firms’ current workforce or customers. Econ.. thus facilitating the establishment of informal norms. Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination. A prejudiced employee would require a higher wage to agree to work with a disfavored coworker. Barry R. 676–86 (2004). 43 Inds. Borjas & Stephen G. Arguably. Richard H. employers benefit from establishing a homogeneous work force. Racial Discrimination in the Labor Market: A Test of Alternative Hypotheses. e. 10 (Orley Ashenfelter & Albert Rees eds. this set of motivations can explain an enduring pattern of discrimination. For a report of a comprehensive empirical study and a discussion of others. 660. in contestable markets. See.28 Prejudiced employees or customers who are required to interact with a disfavored worker or salesperson face a psychic “tax” that affects their decisions. Major G. Pol. 1973). 28.30 A related motivation may have to do with the enhancement of cooperation and harmony within the firm. see Gersen. George J. 1005 (1995) (suggesting that discriminatory practices may serve the interest of workers or customers in increasing the prestige and status of their group by subordinating other groups). Pol. 581 (1989). 108 Harv. Inquiry 23 (2002). Product . supra note 19. 27. Consumer Discrimination and SelfEmployment. Gersen. in Discrimination in Labor Markets 3. 1330 (1973). 34. Note that while competition may reduce discrimination based on employer animus. Standard Normative Economic Analysis Given the possible reasons just described for engaging in discriminatory practices. 114 J. . supra note 27. The Statistical Theory of Racism and Sexism.. even when the correlation between the classification and the relevant characteristics is weak or questionable. 1161 (2000). The Economics of Justice 362–63 (1981). Theory 1 (2004). 52–53. Thomas A. 33.g. e. See. Stone. The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law. The Case Against Private Disparate Impact Suits (Environmental Racism). Rev. 659 (1972). Katherine V.W. 48 UCLA L. and morality “Statistical Discrimination” Discriminatory business practice may reflect an actual or perceived statistical correlation between the applied classification (such as race or gender) and relevant characteristics of (potential) employees or customers. it may actually enhance discrimination based on a statistical correlation between the applied classification and relevant characteristics.34 In economic terms. Edmund S. Arrow. Econ. Heywood & James H. Andrea Moro & Peter Norman. Epstein. should these practices be proscribed? Economists committed to efficiency and to the free market tend to answer this question negatively. believe that such intervention should primarily aim at Market Structure and Labor Market Discrimination (John S. Richard A. Rev. supra note 4. Phelps. Posner. a firm’s choice to employ a selection procedure that has a disparate impact on members of a certain group may not aim to discriminate but rather to reduce the selection costs. Lambert. Peoples eds. The saving in information costs may render the classification profitable. This positive economic analysis of discrimination in the marketplace will serve as a basis for the normative analysis in the following section. at 24 (noting that “[s]kin color and sex are cheap sources of information” for distinguishing between different groups of workers). 34 Ga. 2006). dissimilar treatment that is based on the fact that on average members of one group differ from members of another group in relevant elements (such as productivity) is justified by the higher costs of a more personalized evaluation method. Rev. • D.234 law. 599 (2001). economics. Econ. They assume that the only justification for state intervention is evident market failures. L.. 62 Am. 519.33 Similarly. at 32–41. A General Equilibrium Model of Statistical Discrimination. 1155. in fact. 36. 397. Arguably. supra note 4. efficient. e. Compelling the employer to make accommodations exceeding those she would have made otherwise results in an inefficient and hence unjustified outcome. at 351–63. These arguments do not establish that discrimination practices are necessarily inefficient. See supra pp. They only aim to refute the contention that such practices that survive in competitive markets are inevitably efficient. 136 U. and Markets. For example. Their arguments generally follow the strategies for defending consequentialism against the deontological critique. Richard Posner argues that. L. The Wheelchair Ramp to Serfdom: The Americans with Disabilities Act. 21–33. Pa. Legal Comment. one line of argument points to the incompleteness of the analysis purporting to establish the efficiency of discriminatory practices and the inefficiency of prohibiting them. we briefly review these arguments. Vassel. in the case of employees and customers) in exchange for the freedom to discriminate. and are generally skeptical of the ability of governmental intervention to improve matters. 37. Mark A. an employer and a disabled person can be expected to contract for efficient accommodations by agreeing on a lower wage that would compensate the employer for her accommodation costs. 35.g.(1). and thus call for a detailed CBA in each context. supra note 33. 508–09 (1995).antidiscrimination laws 235 correcting those failures. John’s J. & Com. those who suffer from them would have “purchased” from the bigots their freedom to discriminate. 513 (1987). The claim that the parties can bargain to avoid inefficient discrimination ignores a crucial problem of externalities.. The Americans with Disabilities Act: The Cost. the parties’ freedom of contract seems to be the best way to maximize their preference satisfaction. The Efficiency and the Efficacy of Title VII. at 59–78. 406–10 (1994). Posner.L.37 In what follows.36 Scholars committed to economic efficiency. 10 St. 495. try to demonstrate that antidiscrimination norms are. Epstein. Therefore.D. described in chapter 1. Schuman. Following the long-term and indirect effects strategy discussed in subsection 1. Richard A. Rev.35 In the same vein. Bigots are willing to make less profits (or earn lower wages or pay higher prices. See. . Liberty. were discriminatory practices inefficient. in the absence of barriers to bargaining. Uncertainty and Inefficiency. The endurance of discrimination hence indicates—so the argument goes—that the discriminators value their freedom to discriminate more than the members of protected groups value the entitlement not to be discriminated against. antidiscrimination laws are inefficient. 13 J. Posner. Ron A. but who nonetheless find this conclusion morally unacceptable. Donohue III. supra note 7. Dep’t of Admin. . Stein. These costs may well exceed the practice’s benefits. at 155–61. Schwab. e. Strauss. Rev. Rev. See.g. Bagenstos.38 Those who suffer from discrimination cannot be expected to purchase the bigots’ freedom to discriminate because the benefits of such a bargain have the characteristics of a public good: transaction costs in coordinating employees to make such a bargain might prevent the attainment of the efficient outcome. Donohue III. the ADA and Title VII. Rev. Prohibiting Sex Discrimination in the Workplace: An Economic Perspective. 44 F. 1619. Iacobucci. & Mary L.e.41 In the same vein. Rev.J. 1995) (Posner. 44 Wm.3d 538..J. Econ. 1337. L. the stereotypes become a self-fulfilling prophecy.g.236 law. Hoult Verkerke.39 In addition. MacIntosh. John J. Rev. including the reduction of disability-related public assistance obligations). 817 (1991).43 and consequently 38. 41. 300–01 (1998). 293. 1640 (1991).”40 Moreover. 42. 76 Am. The Law and Economics of Racial Discrimination in Employment. Chi. Consequently. Rev. 105 Harv. J.. 39. 104 Harv. . L. Some scholars argue that the laws actually decrease the incentive to employ disabled people and members of other protected groups. the very act of bribing sexist or racist firms might “undermine the self-esteem that is necessary to make the move . welfare-enhancing. L. Employment Discrimination: An Economic Perspective. John J. commentators have indicated various positive externalities of employing persons with disabilities.. 921 (2003) (suggesting that the ADA may save welfare payments). 19 Ottawa L. Fair Driving: Gender and Race Discrimination in Retail Car Negotiations. Stein. economics. Samuel R. 2080. . Is the ADA Efficient?. make it illegal or impractical for employees to bargain by accepting lower wages. See Ian Ayres. at 104–08 (outlining several positive externalities such as public cost savings. Advocacy Versus Analysis in Assessing Employment Discrimination. 56 U. 545 (7th Cir. 1352 (1989). as well as other rigidities in the labor market. e. 2086 (1992). e. Free to Search. Is Statistical Discrimination Efficient?. Jeffery G. L. 79 Geo.42 At the same time. at 1352. 228 (1986). 1583 (1992). employment discrimination undermines the ex ante incentives for investment in human capital by would-be workers who perceive that they would be treated as average members of their group rather than according to their specific qualities. antidiscrimination laws also have various adverse long-term and indirect effects that should be taken into account. Vande Zande v. Stereotypes may also adversely affect the willingness of members of minority group to invest resources in negotiations. Rev. See.. 43. Rev. supra note 7. Antidiscrimination and Affirmative Action Policies: Economic Efficiency and the Constitution. 903 (2003). The Americans with Disabilities Act as Welfare Reform. Indeed. Wis. Hoult Verkerke.. 36 Osgoode Hall L.) (noting that placing the employer that already invested in accommodating a disabled worker under any further obligation would ultimately “hurt rather than help disabled workers”). J. and morality i.g. 44 Stan. J. See. 50 UCLA L. Stewart J. Id. L. costs that are not internalized through bargaining due to transaction costs or other market failures. 40. 275 (1987). Edward M. David A. ” and antidiscrimination legislation serves as a tool to mimic the outcome that would have resulted in such markets. 44. Rev. supra note 39. 53 Stan. Amy L. supra note 7. supra note 7. L. Angrist. Donohue III. supra note 35. 1423–24 (2003) (arguing that minimum wage and equal pay legislation prevent employers from hiring and retaining workers with disabilities). John J. For instance.D. 109 J. third parties suffer psychic harm merely from living in a society that tolerates discriminatory practices. 46. 1421. Pol. But see John J. 136 U.46 A third argument—following the “Preferences for Constraints” argument discussed in subsection 1. Rev. 915.D.45 Another line of argument—somewhat resembling the move to ruleconsequentialism discussed in subsection 1. Econ. Daron Acemoglu & Joshua D. 48. John J.(2)—has been to interpret Becker’s analysis as justifying the prohibition of employment discrimination.47 Such preferences cannot be satisfied through voluntary bargaining since the benefits of such a bargain have characteristics of a public good. Rev. 1431 (1986). 523. Pa. L. 1411. Rev.44 In particular. 44 Wm.48 The fourth strategy for bringing the consequentialist analysis closer to commonsense morality—people’s feelings of virtue when they “do the right thing” and remorse when they do not (subsection 1.D.(3)—is that social welfare analysis should consider individuals’ preferences for equal treatment. markets are only rarely fully “contestable. Schwab & Willborn. at 1271. L. Wax.antidiscrimination laws 237 reduce the group’s employment level or wages. at 112–13. See also Donohue. Donohue. According to this argument. 931 (2001). 134 U. Pa. Stein. 47. Schuman. Donohue III. at 1218. John Donohue argues that for Title VII to be efficient. supra note 39. legislation that makes it illegal for employees with disabilities to bargain for lower wages or other employment differentials may impede the provision of workplace accommodations. According to this claim. Accommodation Mandates. 897. Christine Jolls. L. at 506. since its persistence is a result of obstructions to the free market. & Mary L. . 531 (1987). and “Real Efficiency”: A Unified Approach. it is sufficient that every American is willing to pay as little as five dollars annually to live in a society that limits racial discrimination. Rev. Understanding the Reasons for and Impact of Legislatively Mandated Benefits for Selected Workers. Disability. Donohue III. 53 Stan. Schwab & Willborn. Consequences of Employment Protection? The Case of the Americans with Disabilities Act. 909–12 (2001) (questioning parts of Jolls’s work). Is Title VII Efficient?. 223 (2000). at 1352.(4))—is particularly unhelpful in the present context: at least some instances of market discrimination stem from prevalent prejudiced sentiments of business’s owners. at least in the short-run. 45. Further Thoughts on Employment Discrimination Legislation: A Reply to Judge Posner. Reciprocity. supra note 7. supra note 7. 118 Harv. See. 76 J.49 In contrast. To address this difficulty. Rev. William Landes. Thus. e. some commentators have suggested that antisocial preferences be excluded. Epstein. Rev. 90 J. .. Schwab & Willborn. Aigner & Glen G. thus resorting to the fifth strategy of replacing actual preferences with ideal preferences (subsection 1. at 122. 94 Cal. 50. sexist. Rel. 5–7 (2006). First. The Structural Turn and the Limits of Antidiscrimination Law. Implicit Bias: Scientific Foundations. Lab. and customers should be included in the social welfare calculation since they are typically reflected in a significant Willingness To Pay (WTP). employers would eventually learn that a given level of education implies more talent for that group. Beyond the Bright Line: Consideration of Externalities. Greenwald & Linda Hamilton Krieger. 511. in effect. Psych. 521 (1998). Econ.51 It was accordingly suggested that “if we were to force some members of the currently excluded group into the market. L. Econ. Opponents of antidiscrimination norms argue that the discriminatory preferences of employers. racist. 7 S. 1.238 law. 945 (2006). Tropp. See Dennis J. Michael Spence. Anthony G. 175 (1977). supra note 4. Samuel R. Person. 14 J. Rev. Pettigrew & Linda R. Cain.50 Second. thanks to the law’s 49. 51. The Economics of Fair Employment Laws.g. and the Allocation of the Burden of Proof under Title I of the Americans with Disabilities Act. 507. 94 Cal.D. Jerry Kang. at 1216. & Soc. such preferences are cognitively irrational. Pol. Oettinger. coworkers. supporters of antidiscrimination norms argue that such preferences should be ignored for several reasons. at 486–88. Bagenstos. 52. Discriminatory practices perpetuate prevailing beliefs about the attributes of subordinated groups that are hard to change. supra note 7. Trojan Horses of Race. & Lab. 548 (1968) (arguing that “psyche losses to whites should not be deducted from benefits [generated by proscribing discrimination against blacks]. See also Thomas F. Interdisc. that the psyche income from discrimination that accrues to whites should not enter society’s social welfare function”). 751 (2006). employees. Eliminating such beliefs is especially difficult due to the cognitive bias to confirm a priori stereotypes and to insufficient interaction with members of the subordinated groups. the Meaning of Undue Hardship. and morality managers. statistical discrimination often reflects irrational stereotypes and cognitive biases.”52 It has been further argued that these preferences will be eliminated once an antidiscrimination legislation is implemented. L. L. Market Signaling: Informational Transfer in Hiring and Related Screening Processes 99 (1974). economics. Statistical Discrimination and the Early Career Evolution of the Black-White Wage Gap. because by passing a fair employment law society is saying. L. Jason Zarin. 52 (1996). Several studies accentuated the last factor by showing that differences in the reliability of generalized information about members of different groups may result in unequal treatment to groups with equal productivity. Stein.(5)). A Meta-Analytic Test of Intergroup Contact Theory. or customers. Cal. Gerald S. and similar preferences are morally and socially unacceptable.J. Rev. 30 Indus. Statistical Theories of Discrimination in Labor Markets. The New Palgrave: Surveying Two Waves of Economic Analysis of Law. it is quite clear that in at least some societies. Amitai Etzioni. Not only is such reliance highly manipulable. Implicit Ingroup Favoritism. supra note 39. 147–48 (2004). . supra note 7. just as we do not expect potential victims of rape or deception to purchase from rapists and deceivers the latter’s “freedom” to engage in these activities. should be 1489. & Econ. Edlin. as well as the suggestion that people’s adaptive preferences. Donohue III. Cf. 407. at 1217–18 (“there is considerable evidence that Title VII has changed existing preferences about the proper role of women and African Americans in the workplace”). objectively or at least subjectively). Epstein. in 3 The New Palgrave Dictionary of Economics and the Law 615. More fundamentally. Schwab & Willborn. therefore. John J. L. so one should not expect members of the discriminated-against groups to purchase bigots’ freedom to discriminate. 143. the primary problem with the claim that the parties can bargain to avoid discrimination is not transaction costs or externalities (the fact that purchasing the right to discriminate from the bigots has the characteristics of a public good and thus faces great coordination difficulties). Res. the move to ideal preferences and the argument that discriminatory preferences and prejudices should be ignored. 1497–1535 (2005). Outgroup Favoritism. Relying on disinterested preferences for equal treatment is equally unsatisfactory. at 1348–55. the negative effects should be considered as well (for instance. Finally. If one takes into account the positive external effects of antidiscrimination measures. 17 Soc.antidiscrimination laws 239 “expressive” effect. At the end of the day. disinterested racist or sexist preferences are more prevalent and powerful than preferences for equal treatment. workplace accommodations for one worker may make coworkers worse off. Donohue. rather than their ex ante ones. The market failure and externalities arguments are contingent and context dependent. Discrimination in Employment. 53. Nilanjana Dasgupta. The primary problem is that. 1998). 2 Am. Just. 419 (2000). supra note 4. 619–20 (Peter Newman ed.. Rev.53 If satisfaction of irrational discriminatory preferences does not enhance—but rather decreases—the discriminators’ well-being (or the well-being of their prejudiced workers or customers) then antidiscrimination laws may actually increase their well-being. at 306 (admitting that preferences are malleable but objecting to their molding by the government). necessarily alter the conclusion of the economic analysis. none of these responses are satisfactory. The Moral Dimension: Towards a New Economics 31–32 (1988) (arguing that preferences change as the constraints change). Aaron S. Extending the scope of analysis by considering long-term and indirect effects does not. and Their Behavioral Manifestations. L. e. 546–48 (1995) (arguing that the efficiency of Title VII depends on the allocation of burden of proof of the empirical evidence). 103 Yale L.55 E.240 law. McCaffery. Focusing on the moral constraint against discrimination. Slouching Towards Equality: Gender Discrimination. Rev. Cunniff.”54 They rely on the effects of antidiscrimination laws and their underlying moral justification. subsection 3 then examines the integration of this constraint into economic analysis of antidiscrimination laws. to make any decision affecting other people’s well-being on the basis of 54. economics. Integrating Deontological Constraints with Economic Analysis • Having exposed the limitations of standard economic analysis of employment discrimination. Edward J. Donohue. On the whole. Res. they contribute to the indeterminacy of standard economic analysis of this issue and demonstrate the difficulties it faces due to its denial of moral constraints. 648–51 (1993) (arguing that efficiency considerations alone do not justify or oppose Title VII). On the indeterminacy of the normative economic analysis of antidiscrimination laws see. Subsection 1 delineates the constraint and its appropriate incidence given the conflicting constraint against curtailing the autonomy of discriminators. at 1343–44. this section proposes to improve the analysis by incorporating a deontological constraint against discrimination into the economic analysis.. The Constraint Against Discrimination and Its Incidence The Constraint against Discrimination One could imagine a general moral duty to treat other people fairly or rationally. Rather. and particularly the extent to which one or both of these normative factors underlie the antidiscrimination laws described in section B. 523–41. 1. . 595. Subsection 2 explores the relationships between the moral constraint against discrimination and redistributive goals. 55. and morality considered—all arguably contain “a fatal circularity. i.. it seems that the various arguments discussed in this section do not bridge the gap between standard economic analysis and commonsense morality.g. Market Efficiency. Note. and Social Change. Thomas A. supra note 39.J. The Price of Equal Opportunity: The Efficiency of Title VII after Hicks. 507. 45 Case W.e. or at a reasonable cost). and sex. Some traits (such as sexual orientation) constitute an important element of one’s identity. John Gardner.58 and some (such as religion) involve important commitments. See Robert Wintemute. not promoting. What is Wrongful Discrimination?. Gardner. 775. including the fact that some forms of discrimination are rational). however.59 56. like race. A decision negatively affecting an employee or a job seeker.edu/faculty/documents/WhatIsDiscriminationMoreau2009. 43 San Diego L.56 For our purposes. . the fact that a certain trait is unchosen or unalterable does not render it forbidden ground for employment decisions. See Sophia Moreau. and the Canadian Charter (1995) (discussing. the possibility of converting to a different religion does not make discrimination based on religion legitimate. infringes a constraint if it is based on a trait of that person which constitutes a prohibited ground for distinction. L.. Such a general duty. However. or firing her. The European Convention. among other things. What is Discrimination? 17–18 (March 2009) (unpublished manuscript. Stud. Jumping the Queue: An Inquiry into the Legal Treatment of Students with Learning Disabilities 185–87 (1997). limited in terms of the people to which it applies. age. Arneson. available at http://law. supra note 56. Once again. Sexual Orientation and Human Rights: The United States Constitution. It would excessively curtail people’s freedom and raise difficult questions regarding the relevance of various factors.antidiscrimination laws 241 all relevant factors and those factors only.g. the people affected by the decisions. Bernard Boxill. These traits vary. and the grounds on which the decision is made. 18 Oxford J. 783–85 (2006). at 169–74. 58. are not chosen and cannot be altered (at all. Blacks and Social Justice 12–18 (1992).57 At the same time. We focus on possible grounds for employers’ decisions that adversely affect employees or would-be employees. See. such as not hiring. On the Ground of Her Sex(uality). Mark Kelman & Gillian Lester. the importance of the trait does not characterize or explain all of the forbidden grounds for discrimination. the use of “fundamental choice arguments” to justify and advance sexual orientation antidiscrimination norms). The fact that a genetically unintelligent person cannot do much about it does not make intelligence an illegitimate ground for selection. 59. 167. it suffices to acknowledge a more modest duty. however. e. Some. See Richard J. seems too demanding.pdf). Rev. 57. The fact that religion does not constitute an important element of some people’s identity or does not involve any commitment does not legitimize a decision not to hire these people because of their religion. 168–69 (1998) (analyzing the problems of resting antidiscrimination norms on a general duty to act rationally.usc. 242 law. Gardner. then employers and providers of such goods and services have a duty to reasonably accommodate these rights. 62. It depends on social.” including the right to have access to jobs. See Raz. and shopkeepers) constitutes a forbidden harm. In addition. . 66. and cultural factors. Szyszczak eds. and race. but also causes a psychological injury. Liberals and Unlawful Discrimination. at 254. economics. http://plato. color. Autonomy is a notoriously complex concept. Cf.stanford.63 Depriving people of such opportunities on the basis of such traits as sex. certain groups have been consistently discriminated against in a vast array 60. 65. 63. 9 Oxford J. The Morality of Freedom 369–95 (1986). John Gardner. Private Activities and Personal Autonomy: At the Margins of Anti-Discrimination Law.66 Identifying the forbidden grounds is not done in a vacuum. landlords. See also Arneson.64 If every individual has “a right to a certain set of important freedoms of contract. The fact that for many generations. at 796 (pointing out that the “various suspect classifications pose radically separate and distinct questions of justice that require remedies specifically attuned to each type”).61 The notion of personal autonomy can be helpful in this regard.62 Following Joseph Raz. let alone suffering a psychological injury. 6 (1989). depriving people of employment opportunities on the basis of sex. 1.65 Traits such as race and sex must not affect the freedom of contract of their bearers. supra note 63. supra note 59. which is also essential for leading an autonomous life. Moreau. historical.. 1992).60 Characterization of the forbidden grounds is therefore more difficult than meets the eye. Stud. John Gardner. For a critical survey of its various meanings. But the moral constraint against employment (and marketplace) discrimination seems to be considerably broader as it is not even conditioned upon the person discriminated against being aware of the discrimination.edu/entries/autonomy-moral. in Discrimination and the Limits of Law. Joseph Raz. and morality Sometimes a decision based on a prohibited ground not only deprives a person of a certain benefit. 64. supra note 56. and services. or sexual orientation often threatens their pride in their identity. Autonomy in Moral and Political Philosophy. 155 (Bob Hepple & Erika M. It may injure one’s dignity and involve humiliation and degradation. L. such as promotion. religion. either by the state or by entities controlling these opportunities (including employers. goods. at 17–21. we assume that leading an autonomous life requires an environment in which individuals have an adequate range of valuable options and the opportunities to choose among them. at 14–25. in Stanford Encyclopedia of Philosophy (2003). supra note 60. 61. 148. see generally John Christman. http://plato. but its effect on that person’s autonomy is typically negligible. The latter decision is indeed irrational..68 This conclusion may rest on the argument that some actions are morally impermissible regardless of the actor’s intentions. 809. at 22–24. an infringement of the constraint does not require a specific mental state or motivation on the part of the discriminator. This is not ordinarily the case with discrimination. 69. Aff.67 According to this understanding of the constraint against discrimination. in Stanford Encyclopedia of Philosophy (2003). See also Andrew Koppelman. & Pub. the constraint is infringed even if the employer does not aim to harm the people she discriminates against and does not think of them as morally inferior (for example.. 814 (2006) (“There is nothing in the structure of deontology that demands that it be indifferent to the issues of social context”). Since the focus is on the effect of the decision on the autonomy of those discriminated against. 20 Phil. in instances of “disparate impact”). Justice for Large Earlobes! A Comment on Richard Arneson’s “What is Wrongful Discrimination?. On this distinction. Moreau. and on the trolley problem. that the harm caused by the discrimination is smaller than the costs involved in not discriminating (to herself or to her prejudiced customers. Rev. Judith Jarvis Thomson. supra note 59.70 the fact that the harm inflicted by discriminatory practices is often merely foreseen. e. See. even if one embraces the intending/foreseeing distinction. neither the monetary costs involved in using nondiscriminatory screening methods nor the psychic costs borne by racist customers. Cf. on the related distinction between harming a person as a side effect of aiding other people and using a person as a means to aiding others.g.stanford. in the cases of statistical discrimination and catering to prejudiced customers). 70.g. In that sense. Self-Defense. The discriminator may believe. 283.edu/entries/civil-rights (rejecting the alleged dichotomy between individualistic and systemic accounts of discrimination). rightly or wrongly. However. Civil Rights.antidiscrimination laws 243 of contexts makes the continued discrimination against members of these groups particularly harmful to their autonomy. . an irrational decision not to hire a woman or a black person is very different from a capricious decision not to hire someone because his name begins with the letter E. does not remove its immorality. rather than intended (e. 68. The intending/foreseeing distinction is crucial (according to its advocates) in justifying an active infliction of foreseen (though unwanted) harm on some people only if this harm is inflicted to avoid countenancing greater harm to others. for example). are “harms” in the 67. 292–96 (1991) (advocating the “irrelevance-of-intention-to-permissibility thesis”). see generally supra pp.69 However. Andrew Altman.” 43 San Diego L. 41–46. Gardner. color. Conflicting Constraints Thus far. and morality relevant sense. one must delineate its incidence in light of conflicting constraints. The central conflicting constraint is against interfering with the autonomy and freedom of the discriminator. does not infringe the constraint against doing harm. gender. Moreau. according to the doing/allowing distinction. and they may certainly be relevant in choosing among different options that do not infringe the constraint or that meet its threshold. and religion. 73. It is generally accepted that one’s freedom to choose his or her spouse and intimate friends. If. we have established a plausible deontological constraint against discrimination. even on the basis of race.244 law. 72.73 In resolving this conflict. justify infringing the constraint against harming people by discriminating against them. the monetary costs involved in using more expensive screening methods may be relevant in deciding whether there is enough good (or bad) outcomes to justify an infringement of the threshold constraint. therefore. even if the harm is merely foreseen. A moral theory committed to the intrinsic value of autonomy should recognize not only the autonomy of the people discriminated against but also that of the discriminators. On this distinction and its role within deontology. a distinction is commonly drawn between different spheres of relationships. foreseen harm is not necessarily immoral. the deontological constraint against 71.71 Avoiding these costs cannot. an employer who does not hire someone on forbidden grounds merely refrains from assisting her. Before incorporating this constraint into CBA. but it may well be.72 Arguably. While the psychic costs borne by a racist may be excluded altogether (see infra p. 41–46. choosing one of them does not infringe the constraint against harming the others as long as the choice does not rest on forbidden grounds (and certainly does not infringe any constraint against harming anybody else. at 21–22. for example. and thus. We next turn to the doing/allowing distinction. economics. The fact that these costs do not account as harm does not necessarily imply that they should not be taken into consideration within a deontologically constrained CBA. supra note 59. . see generally supra pp. there are several candidates for one opening. supra note 66. 254). but the constraint against discrimination only extends to one’s employees and job applicants. This argument is likewise unpersuasive. In this sphere. at least under normal circumstances). should not be curtailed. Unlike intended harm. Helping each and every person would indeed be impossible or overly demanding. at 155. 81 and at any rate can hardly contribute to the analysis of legal norms it squarely opposes. 149. . supra note 9. some scholars object to employment antidiscrimination laws on libertarian grounds. Preferences. 78. at 778. Shaky Grounds: The Case against the Case against Antidiscrimination Laws. What Makes Wrongful Discrimination Wrong? Biases. Peter Siegelman. and Proxies. at 870 (pointing out that the cost to the discriminator from interacting with people she would not like to interact with. Epstein. supra note 56. at 156 (explaining that under most moral theories. supra note 4). Pa.76 or that such decisions necessarily involve smaller harm to the excluded people.80 but this extreme view is unpersuasive. 77. supra note 38 (reviewing Epstein. . at 867–71.”). is larger in the personal sphere than in the impersonal one). . the moral duty not to discriminate on such grounds is outweighed by the moral duty not to interfere in people’s autonomy. supra note 9. 1–262 (1994). . Rev. 79.78 The point is that in the private. Arneson. supra note 9. 80. at 1342 (“the courts have . . . supra note 4. supra note 74. grant[ed] exceptions to the antidiscrimination laws when significant privacy interests are at stake. people “have a moral right to do what is morally wrong”). L.”75 This is not to say that racial or sexist decisions in the intimate sphere are moral. at 868. See also Donohue. For further critical discussions of Epstein’s position see the symposium published in 31 San Diego L. Rev. Kelman. and in particular to firms employing dozens of workers (or retailers serving many customers). intimate sphere.77 The freedom to make such decisions does not even rest on the assumption that the psychic costs borne by people who are forced to have intimate relationships with people they irrationally hate or feel superior to is greater than the psychic costs borne by racist employers (although this may well be the case). e. 163 (1992).74 Personal autonomy requires a space for “truly spontaneous and self-expressive activities and relationships. . Alexander. at 867–71. Kelman. to accommodate privacy and associational concerns. 75. supra note 39. 74. Cf. Verkerke. 76. See. Gardner..antidiscrimination laws 245 limiting people’s freedom (a constraint that applies to the state)—including the freedom to choose with whom to interact and associate—outweighs the constraint against discrimination (applying to individuals). supra note 38. 19 Law & Soc. the constraint against discrimination takes precedence—by most accounts— over the constraint against limiting the freedom of the discriminators. Donohue. Indeed. Larry Alexander. Furthermore. supra note 9.g.79 When it comes to commercial and market settings. Kelman. 141 U. supra note 66. at 154–55. . Inquiry 725 (1994). Title VII’s inapplicability to firms with fewer than 15 employees also represents an attempt . Stereotypes. See Kelman. 81. 84 Notwithstanding such inevitable delimitation issues. Moral Constraints and Redistributive Goals Outside standard economic analysis. ADA.”). Some scholars argue that all antidiscrimination laws are redistributive.83 Legal systems also differ regarding the minimal number of employees above which the prohibition on discrimination applies. and morality Other scholars interpret the limitations on the duty of accommodation (e. or wealth.C.C. 84. .S. it is widely acknowledged that other factors besides efficiency bear on the morality of marketplace discrimination. while others view such exemption as too broad. and fostering social integration (hereinafter redistributive goals). supra note 59.S. economics.246 law. Drawing the line between intimate relationships and the market sphere is sometimes difficult. Some legal systems do not forbid discrimination in hiring household workers.. Compare Title VII of the Civil Rights Act. with Case 165/82. So far we have focused on one such factor: the moral constraint against discrimination. supra note 11 (holding that a British statute providing that the prohibition of sex discrimination does not apply to employment in a private household is inconsistent with the European Council Directive concerning employment sex discrimination). at least some antidiscrimination norms are result-oriented. we maintain that these limitations are better understood as setting a threshold above which the amount of good involved is high enough to overcome the constraint (rather than as a balance between two moral constraints).C. They aim at enhancing equality. 42 U. According to a prevailing view. Another major factor of intrinsic value is the (re)distribution of well-being. § 12111). the European Court of Justice held that even an exemption for employers who do not employ more than five workers is inconsistent with the European directive on sex discrimination (Case 165/82.82 As further elaborated in subsection 3 below. § 2000e(b) (applying the antidiscrimination norms only to “person[s] engaged in an industry affecting commerce. power. 83. however.S. at 23–24. Both theoretical analysis and empirical studies indicate that all antidiscrimination 82. there is a broad consensus regarding the validity of this distinction in both morality and law.g. 42 U. Moreau. While in the United States federal antidiscrimination laws apply only to employers who employ at least 15 workers (Title VII. however. § 2000e(b). 42 U. narrowing socioeconomic gaps between different communities. supra note 11). 2. the “undue hardship” exemption in the ADA) as embodying a constraint against interfering with the discriminators’ freedom of contract. Anti-Discrimination. 87. Empl. 89. Accordingly. See. supra note 56.” (Gardner. Id. supra note 10. Jolls. The discriminator typically intends to harm members of a certain group or believes in their inherent inferiority. any antidiscrimination legal norm belongs to one of two distinct categories: those resting on the moral constraint against prejudice-based discrimination (what Mark Kelman labels “simple discrimination”) and those aiming at redistribution (“accommodation” in Kelman’s terminology).g. 24 Berkeley J. First. supra note 60. for two reasons. L. and Universal Mandates—Aren’t They All the Same?. 85. rather than on society at large. at 688–97. redistributive norms impose significant monetary costs on blameless employers acting on perfectly legitimate and rational grounds. and often less legitimate than” antidiscrimination). supra note 10. 86. Jolls. at 643 (observing that many commentators view accommodation requirements as “fundamentally distinct from. . e. at 828 (describing “a near-consensus in the literature” that there is “a fundamental normative difference between antidiscrimination requirements and accommodation mandates”). supra note 10. Kelman. Bagenstos. supra note 10.88 The first category prohibits discrimination on irrational grounds. simple (or direct) sex discrimination may be motivated by “chivalry” or “courtesy.89 The second category characteristically proscribes discrimination based on the employer’s rational and legitimate desire to maximize profits. the true basis of these laws. supra note 9. even universal norms applying to all employees. such as skin color or sex. but because . supra note 9.antidiscrimination laws 247 laws—and in fact. . & Lab. Arneson. broader than. such as the requirement of overtime pay—have significant distributive effects. Sharon Rabin-Margalioth. at 841–42. at 837.”86 The law prohibits discrimination “not because it seeks to enforce a uniform norm of ethical conduct on individual employers. Thus. 111 (2003). Bagenstos. at 4). The requirement of intention to discriminate on forbidden grounds does not entail a certain motive.. injustice. Scholars endorsing this classification tend to view antidiscrimination norms resting on the moral constraint against discrimination as more justifiable than those aiming at redistribution. discrimination contributes to a pattern of social and economic subordination that has intolerable effects on our society.”87 A more common position draws a distinction between different antidiscrimination norms. so the argument goes. Accommodation. 88. . They are.85 These effects are not incidental. Accommodation duties and the disparate impact doctrine are paradigmatic examples. Kelman. “Antidiscrimination law aims at a wholesale. not a retail. at 779. 93 It is hard to see why statistical discrimination—which often rests on a weak correlation between a candidate’s color or sex and her qualifications. “[a]lthough the [customers’] reactions may often express intrinsically immoral preferences. 94. Kelman. Kelman.92 At the same time. at 789–90. See also Mark Kelman. since in this case the employer merely serves as the customers’ and coworkers’ agent. taking them into account [by the discriminator] does not”). at 651. 660–65. Employment Equality Under the Pregnancy Act of 1978. supra note 9 (arguing that. Alternatively. say. at 1–17 (highlighting the theoretical difference between direct discrimination.248 law. supra note 9. 92. are more deserving than. See generally Kelman. supra note 10. . Arneson. It is not selfevident—so the argument goes—that mentally or physically disabled people.91 This argument is problematic.94 90. even a prohibition of discrimination on grounds of pregnancy and childbearing is redistributive. See also Jolls. and morality Second. resting on individual liability for harming other people and indirect discrimination (also known as disparate impact). 94 Yale L. since employing women of childbearing age is more costly.. See. Note that according to this distinction. whereas reluctantly catering to prejudiced customers does. supra note 9. supra note 74. e. accommodation is merely a policy argument competing with other social resource claims). at 850–52. while simple discrimination should be regarded as a violation of a side constraint. supra note 10. see Alexander. Kelman classifies prohibitions of statistical discrimination as distributive because foregoing such discrimination entails real monetary costs due to the use of more expensive screening methods. redistributive considerations). at 847–49. grounded in forward-looking. supra note 56. Siegel. people of low intelligence. Kelman argues that prohibition of discrimination based on customers’ or coworkers’ prejudice rests on moral constraints. Gardner. economics. Jolls. supra note 60. who also fare badly in the employment market. 929 (1985). for the employer acts on purely rational grounds. at 686 (arguing that discrimination based on customer or coworker attitudes is similar to requirements of accommodation). Reva B.g. and thus contributes to its maintenance. For instance. at 173–76. such norms assist some groups rather than others. Strategy or Principle? 92–93 (1999) (analyzing the accommodation requirements of the ADA as a tax which creates inappropriate incentives and deadweight loss). for example. 91. For this and other critiques of the view that catering for prejudiced customers and coworkers is inherently immoral. and which may be only marginally cheaper than other screening methods—violates no moral constraint. 193 (concluding that.90 A major problem facing the distinction between the two types of antidiscrimination norms is that it is often difficult to draw the line between them. 93.J. namely maximizing her profits. one could argue that catering to prejudiced customers violates a moral constraint because the employer fails to act against the prevailing wrongful norm. 176–83 (discussing seemingly rational discrimination based on irrational proxies. 935. See Paul Brest. Stud. Rev. If one understands the constraint against discrimination as a constraint against harming people’s autonomy and their protected set of freedoms of contract. 366–67 (1996)). Alexander. First. Rev. . See George Rutherglen. . .” and thus a single legal norm cannot coherently rest on both of them (Gardner. In Defense of the Antidiscrimination Principle. Moreau. . . 97. L. A direct inquiry into the elusive intent of the defendant is usually fruitless. 7 (1976) (“[R]ace-dependent decisions that are rational and purport to be based solely on legitimate considerations are likely in fact to rest on assumptions of differential worth of racial groups or on the related phenomenon of racially selective sympathy and indifference”). . supra note 59. . David A. Disparate Impact under Title VII: An Objective Theory of Discrimination. 47 Stan. 1010–14 (1989) (“The failures of the discriminatory intent standard in the area of employment discrimination . . L. . and correspondingly all antidiscrimination laws have mixed goals. strongly support the use of the disparate impact standard . addresses the difficulty of proving pretextual discrimination.96 Rather than a clear dichotomy between different antidiscrimination norms. seemingly rational decisions often conceal irrational ones. 96. L. employment-based decisions result from categorization-related decision errors). Chi. at 167–73. . The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity. 56 U. . 1309–11 (1987) (“Only rarely will plaintiffs find direct evidence of discriminatory intent. stereotypes. and ideologies. L. 98. and therefore insisting on proof of the latter would vitiate the efforts to extinguish them. 1161 (1995) (arguing that many prejudiced. this constraint is infringed regardless of whether the discriminator intends to discriminate members of certain groups and whether he views them as morally inferior—then this constraint can underlie all antidiscrimination laws. Interestingly.95 Second. supra note 74. . Discriminatory Intent and the Taming of Brown. 16 Oxford J. the classification problem does not pertain to borderline cases only. 73 Va. supra note 60. Rev. most discriminatory practices arguably rest on mixed motives.antidiscrimination laws 249 Moreover. The theory of disparate impact . 90 Harv. and if (as argued in the preceding subsection).”). there seems to be a continuum between prohibitions that are primarily based on the discriminator’s blameworthiness and those that principally aim at redistribution. Discrimination as Injustice. and that legally proscribing it may thus rest on both of them (John Gardner.98 This understanding of the moral constraint is broader than the one advocated by those who believe that only 95. . rational discrimination tainted by associations with biases. while Gardner initially insisted that the harm principle (corrective justice) and distributive justice are “radically discontinuous.”). at 12–17). . . 1297. 353.97 A more radical critique of the common distinction contends that all antidiscrimination laws are grounded in moral constraints. Strauss. Rev. he later retracted this claim and conceded that the same practice may be wrong for two different reasons. L. and discrimination stemming from unconscious bias). 1. Linda Hamilton Krieger. as indicated in the preceding subsection.99 According to Raz. how do these positions affect the cost-benefit analysis of antidiscrimination laws. Positions focusing on moral constraints would require incorporating constraints into the analysis. first.”100 This morality of autonomy denies the distinction between culpability-based and end-state justifications for antidiscrimination norms. and morality “simple discrimination” rests on such moral grounds. then a complex formula. at 416. economics. the central questions are. a way of looking at distributive goals and moral constraints as two sides of the same coin. 1985.S. all positions imply that standard CBA. however. 99. There is.”101 A thorough examination of the various positions described above exceeds the scope of our discussion. namely that only illwilled discrimination infringes a moral constraint.” Raz’s theory allows the state “to use coercion both in order to stop people from actions which would diminish people’s autonomy and in order to force them to take actions which are required to improve peoples’ options and opportunities. the state is duty-bound to promote people’s autonomy. give effect . as this background has a direct effect on the way discrimination reduces autonomy. . . Clearly. The positions focusing on distributive justice entail that the social welfare function of standard CBA should be altered. . For our purpose. and second. supra note 63. at 18–21. to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated . taking both of them into account. If distribution and moral constraints are both normatively important. c. All of the positions described so far share the assumption that distributive goals and moral constraints are two fundamentally different grounds for prohibiting discrimination. Id. Cf. Gardner. . ignoring both distributive concerns and moral constraints. principle. Also. 101. . . may be required. its distribution should count as well. is off the mark. Raz. Rather than simply aiming at maximizing aggregate utility. . H-6). . “The ‘harm principle’ and ‘distributive justice’ are not discontinuous principles but are subsumed within a single. how are they related to the consequentialism/ deontology distinction. . the present position does not ignore the cultural background of discriminatory practices. This position follows Raz’s unitary ideal of autonomy and his theory of perfectionist liberalism. section 2 (“The purpose of this Act is to . Contrary to the traditional “harm principle. supra note 60.250 law. continuous . Canadian Human Rights Act (R. 100.”). 542 (7th Cir. 63 F. when acting on the basis of a forbidden ground) but also with regard to accommodation requirements. . This is the case not only in the context of simple discrimination (that is. This is not to say that welfare analysis is irrelevant in evaluating the desirability of antidiscrimination legislation and in implementing concrete 102. If. however.”102 The constraint against discrimination mandates that an accommodation may well be required even if its net social benefit is negative. Our discussion proceeds on the assumption that moral constraints are pertinent to all antidiscrimination norms.antidiscrimination laws 251 The distributive concerns discussed above pertain to the goodness of outcomes brought about by antidiscrimination laws. Accordingly. supra note 7. Valley Central School District. Judge Calabresi adopted a similar approach. . See also Stein. Integrating Threshold Constraints with Economic Analysis The moral constraint against discrimination entails that prohibiting discrimination on such forbidden grounds as race and sex can be justified even if the prohibition imposes a social cost that exceeds its benefit. Vande Zande. we will not pursue this possibility further but rather focus on moral constraints. then the proposed analysis is useful for those norms only. noting that an accommodation is reasonable “if its costs are not clearly disproportionate to the benefits that it will produce”: Borkowski v. they may be part of either a consequentialist or a deontological factoral theory. “it would not follow .” thus providing even “wholly inefficient accommodations”). such constraints underlie only some of these norms. As clearly stated by Judge Richard Posner. 44 F. 1995). all such norms may fruitfully be analyzed using a deontologically constrained CBA. depending on whether the goodness of outcomes is the only factor taken into account.3d 131. . Improving standard CBA by incorporating distributive concerns is both justifiable and feasible. As such. 138 (2d Cir. that an accommodation would have to be deemed unreasonable if the cost exceeded the benefit however slightly. contrary to this assumption. at 178 (willing to endorse the view that “society ought to look beyond economics and instead be motivated by concerns for human dignity and well-being. 3. 1995). Since it exceeds the scope of this study.3d 538. 1895. Under the ADA.C. § 12112(b)(5)(A). § 2000e-2(k)(1)(A)(i). L. 1 (1990). one needs a threshold function that determines the size of the threshold and the pertinent types of costs and benefits. an employer is required to “reasonably accommodate” an employee’s religious observance and practice only as far as the required accommodation does not impose “undue hardship on the conduct of the employer’s business. § 2000e-2(e)(1). Bryant. under Title VII. economics.S. In addition. which serves as a proxy for the size of the harm.” 42 U. when considered in light of the factors set forth in subparagraph (B). and Stigmatic Harms.”105 Interpretation and implementation of these provisions may greatly benefit from a careful cost-benefit analysis subject to a deontological constraint. or as allowing the employer to opt for the most cost-effective measure from among the reasonable ones). supra note 14. color. supra note 14.. religion.S. For such an extreme position see. acting on the basis of religion. Chi. Gregory S. an employer is exempt from the duty to make “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified individual with a disability if making it “impose[s] an undue hardship on the operation of the business.” 42 U. The size of the threshold may depend on the form of discrimination. employers are sometimes permitted to employ an otherwise discriminatory practice if the practice is “reasonably necessary” or required as a “business necessity.S. To assess the permissibility of a given type of discrimination. 74 U. Efficiency Rejected: Evaluating “Undue Hardship” Claims Under the Americans With Disabilities Act. Plausibly.” 42 U. employers are exempted from the duty of accommodation if it would be “unreasonable” or would impose on them “undue hardship. sex or national origin is permitted when such characteristic “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.g.252 law. 104.” 42 U. sex.”104 Similarly.” 42 U. e. Balancing. and morality legal provisions. Rev.103 A sufficiently high net cost may well justify an infringement of the moral constraint against discrimination and correspondingly a limitation of the incidence of the antidiscrimination legal norm (or an exception to it). 105. or national origin is legitimate if the practice is “job related for the position in question and consistent with business necessity. the “reasonable accommodation” requirement be read as adopting a cost-blind approach. under current legislation. Cost-Benefit Analysis without Analyzing Costs or Benefits: Reasonable Accommodation.C. § 12111(10)(A).S. As indicated in section B. See also Frank. 26 TULSA L. the extent of nonpecuniary harm inflicted when an employer uses an employment practice that causes a “disparate impact” on the basis of 103.C.C. Similarly. § 2000e-(j). 1898–99 (2007) (raising the possibility that unlike the “undue hardship” exception.C. According to Title VII of the Civil Rights Act.S. . an employment practice that causes a disparate impact on the basis of race.J. Crespi. The ADA defines “undue hardship” as “an action requiring significant difficulty or expense. See also Cass R. Sunstein. B.S. 87 F. 93–96. aff ’d per curiam. . some factor K (where K > 0). As discussed in section B. Cf. 390 U. such that an infringing act is permissible only if its total benefit. acting on the basis of religion.” Even in cases of racial discrimination. or national origin (but not race) is permitted when such characteristic “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. For example. as Kelman rightly points out. exceeds its weighted harms. A deontologically constrained CBA also requires setting the structure of the threshold function. exceeds the sum of C and K. Washington v. since it determines the threshold irrespective of the actual harm that the discriminatory decision or practice inflicts on the person who is discriminated against. 84–86.D. See supra pp. n. Lee. color. supra note 9. if no less rights-violative alternative were available. Ala. under Title VII. the “necessity” and “undue hardship” standards may also be interpreted as laying down a multiplier threshold whose size is determined by the extent of the harm inflicted by the infringing act. Peters. sex. Kelman.107 In the present context. the constraint may be expressed by adding to the act’s harms. alternatively. CK ′ (where K ′ > 1). the language of thresholds set forth by Title VII and the ADA seems to reflect the former approach. the employer would have to prove that the costs of observing the antidiscrimination norm were sufficiently great to meet a rather high threshold. C. or national origin is significantly lower than when she refuses to hire or otherwise discriminates against an individual directly on one of these grounds. religion. such that an infringing act is permitted only if its total benefit B. This variation can justify a difference in the threshold that has to be met in each of these cases. 919 (7th Cir. Yet.antidiscrimination laws 253 race.7. 327 (M. “an employer might temporarily segregate workers in an otherwise impermissible fashion to avert severe racial violence. 1966). the threshold is highest in cases of simple discrimination. 263 F. 107. As discussed in chapter 4. Supp. a threshold may be appropriate in exceptional cases. at 836.3d 916. sex. A third possibility is a combined. Accordingly. yet recognizing that “there is merit in the contention that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period). threshold. This approach finds support in Judge Posner’s statement that the assessment of whether an accommodation 106. the infringement can be expressed by multiplying the act’s harms by some factor K ′.”106 In such a case. Wittmer v. additive and multiplier. 1996) (suggesting that “separation of the races in a prison that was undergoing a race riot would not violate the Constitution”). 333 (1968)) (striking down an Alabama statute requiring permanent and complete racial segregation of prisoners. 2d 602 (9th Cir. e.112 108. economics.3d at 139 (Calabresi. 44 F. this view is reflected in current antidiscrimination laws. See. even in cases of simple discrimination. 460 U.S.110 Finally. Bradley v. a central question is whether discriminatory preferences and prejudices of either the employer or the firm’s customers or other employees should be taken into account. which had a disparate impact on African American men). Acemoglu & Angrist. the law implicitly delegitimizes other costs. within the deontological threshold function. See supra pp. In a sense. Christine Jolls.. Inc. e. and has in fact been advocated by some economists. Vande Zande. supra note 44. 111. J. chronologically remote and uncertain costs and benefits—such as the concern that some antidiscrimination measures might in the long-run create disincentives to employing disabled people111—may be discounted. Vande Zande. J.3d at 543.) (“[The concept of undue hardship] looks not merely to the costs that the employer is asked to assume. the prohibition. See also Borkowski. see also supra pp. 344–45. 89–91.109 However. infra pp.254 law.. Gerdom v. Continental Airlines. noting that placing the employer that already invested in accommodating a disabled worker under any further obligation would ultimately “hurt rather than help disabled workers”). 1074 (1983). 238–39. .3d at 545 (Posner. or exception to. On chronologically remote and uncertain costs and benefits.g. By limiting the application of these limitations to accommodation duties. 799 (1993) (holding that customer preference for no-beard on the face of a delivery is not a colorable business justification of the employer’s no-beard policy. 7 F. and morality imposes an “undue burden” under the ADA should be made “in relation to the benefits of the accommodation to the disabled worker as well as to the employer’s resources. 110.g. The constraint against discrimination implies that satisfying racial or sexist preferences should not constitute part of the social good. As we have seen. cert. 63 F. Inc. one could imagine scenarios in which the net cost of complying with the prohibition (excluding the “psychic costs” experienced by bigots) would be so high as to justify noncompliance with. 147–49. at 931. The express limitations on the duties of accommodation discussed earlier do not apply to antidiscrimination norms that do not entail out-of-pocket expenses. 112.”108 As regards the types of costs and benefits relevant to measuring whether the threshold is met. disregard for antisocial preferences is possible even within a purely consequentialist theory. Pizzaco of Nebraska. denied. 692 F. See. and 196–201.. supra note 44 (accommodation mandate may reduce a given group’s employment level or wages). 1982) (holding that customer preference for slim female flight attendants did not justify a discriminatory policy where weight was unrelated to job performance). 109. however.. 44 F. this view is more likely to be part of a deontologically constrained CBA. As mentioned in supra note 106 and the accompanying text. but also to the benefits to others that will result”).3d 795. 2006. For the more modest suggestion. Equal Rights of Persons with Disabilities (State Participation in Financing Accommodations) Regulations. Moss & Daniel A. the state should compensate losing employers for making the accommodations). Rather than mandating everyone to always do what would maximize the overall good. supra note 74. while others argue that it should fund only those reasonable accommodations that “would impose an undue hardship” on the employer.antidiscrimination laws 255 Given a certain threshold for accommodation duties. Malin. 115. L. Deontology is less demanding than consequentialism. The Future of Disability Law. see.114 Such mechanisms effectively reduce discrimination in circumstances where imposing the costs of accommodation on the single employer would be unreasonable and involve undue hardship. Stein. 33 Harv. 1969. for example. 190. Empirical Implications of Title I. 1 (2004).H. For the first view. Clearly. Conclusion This chapter analyzed employment discrimination through the prism of deontologically constrained CBA.R.L. 26 U.T. Bagenstos. Krenek. 85 Iowa L. Rev. These include direct subsidies and indirect tax credits and tax deductions. See section 49 of the National Insurance Law [Consolidated Version]. Tax credits and deductions are used. Alexander. See supra pp. 33–40.g. Samuel R. e. at 174–77 (suggesting that when both the individual worker with a disability and society in general benefit. the efficacy of antidiscrimination norms may be considerably enhanced by spreading the costs involved in such accommodations amongst all employers or even amongst all members of society. but the employers lose. 19–20.113 Indeed. 41. See sections 44 and 190 of the Internal Revenue Code. state funding of accommodations may rest also on distributive concerns—this time the distribution of the burden among different employers. Scott A. 1995. S. see. 114 Yale L. 114. . Direct subsidies are granted.-C. It sought to expose the limits of standard 113. Rev. it allows for options. K.g.115 • F.J. thereby considerably lowering the actual costs borne by any individual employer. Public Funding for Disability Accommodations: A Rational Solution to Rational Discrimination and the Disabilities of the ADA. L. 2009–13 (1994). 197 (1998).C §§ 44. supra note 7. 47. See also Michael A. Deontological morality supports such mechanisms not only because they enhance the efficacy of antidiscrimination norms but also because they enhance their legitimacy. in Israel. Some scholars suggest that the state should fund all necessary accommodations. in the United States. 754. 1522. at 172 (criticizing “moral propositions that demand considerable individual sacrifice for the social good”). 72 Tex.S. some countries do employ mechanisms for such cost spreading.. Stein.. and 98–103. e. Sue A. Beyond Reasonable Accommodations. 1684 (2000) (“Providing for extra-reasonable accommodations could overcome existing market inequities borne by the most stigmatized among the disabled”). 1671. 6480. for instance. Rev. C. constrained CBA better captures the pertinent normative issues. which often embody threshold constraints. wealth. At the same time. due to the pertinence of a third factor: equality. constrained CBA is much more compatible with actual legal norms. Second (and relatedly). it does facilitate a more comprehensive normative analysis than standard CBA. including those not adequately addressable within standard CBA. Employment discrimination is problematic in that sense. and morality economic analysis of this issue and to demonstrate the fruitfulness of incorporating a deontological constraint into the economic analysis. and it structures the analysis in a way that better explains and corresponds with current legal norms. We demonstrated two of the strengths of our proposal and one of its limitations. We conceded that our proposal is useful to the extent that antidiscrimination norms actually rest on the constraint against discrimination. While deontologically constrained CBA does not necessarily exhaust all pertinent moral factors. constrained CBA is particularly useful in analyzing issues where the two primary normative factors are the maximization of human well-being and deontological constraints. economics. rather than on redistribution of power. First.256 law. or well-being. . competitive market is the ideal prototype of an economically efficient mechanism. since market transactions usually involve money or money equivalents.• nine Contract Law • A. Following a brief outline of the economic analysis of contract law in section B. which is hardly surprising given that this is the domain in which economic theory originated. Introduction there are very few legal fields in which economic analysis has gained such prominence as in contract law. We nevertheless maintain that certain deontological constraints apply to contracting behavior and that incorporating deontological constraints with economic analysis of contract law may be fruitful. Finally. since presumably no one would make a contract unless she expects it to improve her lot. Voluntary transactions are the building blocks of the market. Section D will then demonstrate how deontological constraints may be integrated with economic analysis of the contracting stage. compared to such spheres as family or criminal law. economic analysis is especially apt for analyzing market interactions. section C will briefly survey the deontological constraints pertinent to contract law and critically examine the standard economic response to them. Section E will highlight the differences between economic and deontological analyses of contract performance and breach. Market transactions are not only Kaldor-Hicks efficient but also Pareto efficient. and discuss the difficulties facing integration of deontological 257 . the tension between standard economic analysis and prevailing moral convictions is less conspicuous in this area than in others. aggregate utility is maximized when every person rationally pursues her own ends. and the free. hence. In a perfectly competitive market. monetization poses no serious difficulty for economic analysis of contract law. focusing on the doctrines of mistake and misrepresentation. Ideologically and methodologically. Market transactions do not ordinarily involve infringements of deontological constraints. which is particularly essential for the execution of long-term and complex projects. On the two components of economic rationality. economics. Standard economic analysis of contracts and contract law assumes that people are cognitively and motivationally rational. Economic Analysis of Contract Law Contracts are the legal means to effectuate voluntary transactions. given the current state of the pertinent theories. and the outcomes are then traded in complex. Risk allocation is particularly important in forward-looking transactions. Other ways in which contract law facilitates voluntary transactions include. Each production unit (from a power plant to a law professor) specializes in producing certain products or services. infra pp. • B. . The very availability of legal enforceability prevents a prisoner’s dilemma situation. money) from people who value them less to people who value them more.258 law. which normative economics favors enthusiastically. and morality constraints with the economic analysis of contract remedies. 323–27. which is the key to higher productivity at lower costs. and fears that the other party will do the same—thus resulting in mutual nonperformance. Voluntary transactions facilitate division of labor in society. thereby increasing the overall welfare derived from these resources. Contracts also allocate risks and prospects involved in any transaction. including market price fluctuations and increases or decreases in the promisor’s costs of performance or the promisee’s benefit from performance. for example. Such transactions facilitate the transfer of resources (goods. but some risks (such as a hidden defect in the sales object) also characterize instantaneous transfers of resources. the role of contract law is to facilitate and encourage these voluntary exchanges of resources. the imposition of precontractual disclosure duties (preventing inefficient transactions due to information problems) and the reduction of transaction costs through the provision of default rules (thus facilitating transactions that would otherwise be prohibitively costly and increasing the joint surplus of other transactions). Legal enforceability facilitates reliance on the expected performance by the other party. 11–16. services. mutually beneficial exchanges. From an economic point of view. see supra pp.1 Each party aims to 1. in which each party strives to receive the counter-performance without doing her share. Thus. Very often. from the realization that any rule may have different effects on the parties’ behavior in various stages of the transactions. 1428 (2004). for example. the measure of damages for breach of contract affects not only the promisor’s decision whether to perform or breach the contract. 104 Colum. share the consequentialist denial of any constraint on promoting social utility. continues in negotiating and formulating the contract. Legal Stud. throughout the contractual process. paying heed to the similarly rational decisions of the other party. Triantis. compensation for harm is only due if. . e. it judges truth telling and information disclosure only according to their effect on the transaction’s efficiency and the incentives that disclosure duties create for obtaining the information in the first place. and finally. we aim to demonstrate that the denial of constraints weakens economic efficiency both as an interpretative and as a normative theory of contract law. 2. Rev. Anti-Insurance. Scott & George G. that is.2 It is this common feature of economic analyses of contract law that we challenge. some of the incentive effects of any rule are desirable while others are undesirable. contract law should provide the parties with optimal incentives to act efficiently. 21 J. moves on to investing in performance efforts by the promisor and in reliance by the promisee. See. making the formulation of an efficient law of contract almost impossible given the absence of reliable data on the magnitude of each effect. such compensation would bring about an efficient outcome. Chronologically. but also the extent of the promisee’s reliance on the expected performance and the scope of information the parties share prior to contracting.g. among other things. From an economic perspective. deciding whether to perform or breach. Robert E. L. This complexity is reflected in the fact that legal economists disagree on practically every aspect of contract law. Thus. economic analysis does not recognize a constraint against promise breaking but rather celebrates contract breaching whenever the breach produces slightly more net benefit than performance. Likewise. The complexity of economic analysis of contract law stems. this process begins by acquiring relevant information and searching for an appropriate partner.contract law 259 maximize her own utility and is able to optimally calculate the expected outcomes of her decisions. however.. In line with our general thesis. 203 (2002). Robert Cooter & Ariel Porat. In the same vein. Most legal economists do. and to the extent that. in a way that would maximize the joint surplus from the transaction. taking measures in response to a possible breach. Embedded Options and the Case against Compensation in Contract Law. 260 law, economics, and morality • C. Deontological Constraints and Contract Law 1. The Pertinent Constraints: An Overview Two major categories of deontological constraints are relevant to contracts: those pertaining to the contracting stage and those applying to the performance stage. At the formation stage, the overarching principle is that of free will. A contracting party must not lie, threaten, or use force to induce contracting. Lying and deceiving adversely affect the interests of the other party and fail to respect her capacity for reasoned decision-making. Some deontologists maintain that lying is merely a special case of the general constraint against actively/intentionally harming other people. Others believe that there is an independent constraint against lying, which is violated even if the lie does not harm the deceived and even if it benefits her (or, alternatively, believe that every lie ipso facto harms the deceived).3 A related question is whether the relationship between people negotiating a contract gives rise to a duty to actively disclose information to one another. Inducing contracting through force or threats likewise offends the liberty of the threatened party. Drawing the line between a legitimate use of one’s bargaining advantages and an illegitimate exploitation of the other’s weaknesses is, however, a difficult task.4 At the performance stage, just as promisors must keep their promises, a contracting party must not breach her contractual obligations. The questions revolving around the existence and exact scope of this constraint are a primary source of controversy among consequentialists and deontologists, as well as between different brands of deontological theories. It is unclear whether there is an independent moral duty to keep one’s promises; and if no such independent duty exists, whether the very breach of a promise necessarily harms the promisee.5 If the very act (including omission) of breach constitutes harm, then the controversy is less important. Theoreticians who do not recognize an independent constraint against breaking promises and who do not accept that every promise breaking ipso facto involves harm, would not regard just any contract breach as infringing a constraint. 3. Shelly Kagan, Normative Ethics 106–13 (1998). See also infra pp. 274–77. 4. See, e.g., Charles Fried, Contract as Promise: A Theory of Contractual Obligation 92–103 (1981); Michael J. Trebilcock, The Limits of Contract 78–101 (1993). 5. Kagan, supra note 3, at 118–20. contract law 261 In fact, these theoreticians are likely to deny that a mere promise or agreement, absent any reliance by the promisee or enrichment by the promisor, gives rise to contractual liability in the first place.6 Another crucial difference between these two understandings of the constraint against breaking promises refers to the significance of paying damages. Assuming that monetary damages can fully compensate the promisee for her losses, is there an infringement of a constraint if the breaching promisor fully compensates the promisee? Those who do not admit of an independent constraint against promise breaking may conclude that in such a case no constraint is infringed because there is no harm or because the harm is repaired. Conversely, those who argue for an independent constraint against promise breaking may insist that while paying damages mitigates the immorality of the breach, it does not eliminate it altogether.7 In addition to the two main categories of constraints, other deontological constraints may pertain to contractual relations. In particular, the relationships created between contractual parties (or even between people negotiating a contract) may give rise to special moral obligations of consideration, cooperation, and mutual assistance.8 In the present context, it is immaterial whether these obligations are considered independent constraints, derivatives of the abovementioned constraints, or mere manifestations of the general constraint against harming other people. The constraint against harming other people may also be relevant when contracts adversely affect third persons, as in many instances of illegal contracts.9 6. See, e.g., Patrick S. Atiyah, Promises, Morals, and Law 177–215 (1981). 7. The latter view seems to better reflect prevailing moral intuitions. See David Baumer & Patricia Marschall, Willful Breach of Contract for the Sale of Goods: Can the Bane of Business Be an Economic Bonanza, 65 Temp. L. Rev. 159, 164–67 (1992); Tess Wilkinson-Ryan, Jonathan Baron, Moral Judgment and Moral Heuristics in Breach of Contract, 6 J. Empirical L. Stud. 405 (2009). But see Daniel Markovits, Contract and Collaboration, 113 Yale L.J. 1417, 1504 (2004) (“A promisor who pays expectation damages continues to collaborate with her promisee, in spite of her breach”). 8. On moral constraints rooted in special relationships, see generally Kagan, supra note 3, at 125–37. 9. As elaborated in chapter 8, a person may infringe the constraint against harming other people not only through her behavior in the contracting and performance stages but also by refusing to contract with some people on racial, chauvinist, or similar grounds. Prohibiting such discrimination may, however, raise a concern about infringing on people’s autonomy by the state. We shall not discuss such constraints here. 262 law, economics, and morality 2. The Economic Response and Its Critique In previous chapters, when discussing other issues involving deontological constraints, such as the killing of innocent people to save the lives of others or discrimination in the marketplace, we noticed that consequentialists, including legal economists, expend great effort to demonstrate that, contrary to appearances, consequentialism does not entail the violation of those constraints.10 Such efforts are less noticeable when it comes to contract law. For example, legal economists straightforwardly advocate the breach of contracts when the costs, including opportunity costs, of performance to the promisor are greater than the benefits to the promisee.11 There may be two explanations for this unapologetic stance of economic analysis of contract law. First, the deontological constraints against promise breaking, lying, and withholding information are usually perceived as much weaker than the constraints against infringing upon people’s basic liberties, such as the right to life or to human dignity. Breaking a promise or lying is very different from actively/intentionally killing a person or discriminating against her. Hence, the conclusions of economic analysis of contract law are less morally repugnant.12 Second, despite the fundamental differences between deontology and consequentialism, the practical implications of deontology and of consequentialism for contract law are often similar. At the contracting stage, both deontology and consequentialism ordinarily insist that contracts should be voluntary, that is, inter alia, free of deceit and duress. Deontologists tend to insist on the voluntariness of contracts because of the intrinsic value they attribute to people’s freedom and autonomy. Consequentialists insist on voluntariness because it is the best guarantee for the bargain’s efficiency: only if both parties voluntarily make the contract can one be assured that the contract is Pareto efficient. At the performance stage, most deontologists and consequentialists agree that, at least as a point of departure, contract remedies should protect the promisee’s expectation interest, rather than merely her restitution or reliance interests. Deontologists may come to this 10. See generally supra pp. 21–33. See also supra pp. 234–40. 11. See, e.g., Robert Cooter & Thomas Ulen, Law and Economics 254–61 (4th ed. 2004); Steven Shavell, Damage Measures for Breach of Contract, 11 Bell J. Econ. 466 (1980). 12. Though even this generalization is subject to exceptions. See, e.g., Oren Bar-Gill & Omri Ben-Shahar, Credible Coercion, 83 Tex. L. Rev. 717 (2005). contract law 263 conclusion because they view expectation damages as equivalent to the promised performance,13 or because only expectation remedies reflect the parties’ forward-looking commitment to affirmatively treat each other as ends in themselves—a commitment that underlies their collaborative relationships.14 Consequentialists may reach the same conclusion because remedies protecting the promisee’s expectation interest ensure that the promisor will fully internalize the costs of her breach, thus inducing her to perform the contract if and only if performance is efficient.15 While it is true that the deontological constraints ordinarily applicable to contractual issues are relatively weak, the convergence of consequentialism and deontology in this sphere must not be overstated. Deontological and economic theories of contract law do sometimes diverge not only with regard to the normative underpinnings of contract law but also in their policy recommendations. This divergence stems from the fact that economic analysts view private, free will as very important, but only for instrumental reasons. Private will is an object of people’s preferences, and so having more freedom enhances one’s well-being according to a preference theory of the good. A minimal degree of liberty is also a means to attaining and safeguarding other components of people’s welfare. Finally, the will also provides economic analysis with a criterion for measuring well-being. The value of entitlements is usually measured according to people’s willingness to pay for them, and willingness to pay is (partially) determined by people’s will.16 Thus, in situations of market failure, for example, economic analysis may endorse involuntary transfers of assets whenever the benefits of such transfers, all things considered, are greater than their costs. In the same vein, economic analysis would approve of a breach of contract whenever the net benefit of the breach, all things considered, exceeds the net benefit of performance. The central role of the will in contract law enables economists to defend the morality of economic analysis of contract law even when it conflicts with commonsense morality. For instance, Steven Shavell has argued that contracts are usually incomplete: even when they lay down an obligation to 13. Fried, supra note 4, at 17–21; Ernest J. Weinrib, Punishment and Disgorgement as Contract Remedies, 78 Chi.-Kent L. Rev. 55, 65–70 (2003) (deriving expectation damages from Kant’s notions of contract and promise). 14. Markovits, supra note 7, at 1497–1515. 15. A. Mitchell Polinsky, An introduction to Law and Economics 33–36 (3d ed. 2003). For a more nuanced analysis, see infra pp. 294–97. 16. See also infra p. 318. 264 law, economics, and morality do something, they do not explicitly specify whether this obligation would apply under every possible contingency. Since it stands to reason that the parties would have exempted the promisor from her duty to perform whenever the costs of performance exceed the value of performance to the promisee, and since the promisor ordinarily knows that this is the case, then there is nothing immoral in breaching a contract so long as the breacher compensates the injured party according to the latter’s expectation interest. A breach is therefore immoral only if damages are undercompensatory (which, admittedly, they often are).17 Interestingly, Shavell’s attempt to reconcile economic analysis of contract breach with prevailing moral intuitions (that is, roughly, with moderate deontology) resembles the attempt of absolutist deontologists to square the duty to keep promises with these intuitions. Suppose that keeping a mundane promise would entail unexpectedly huge monetary costs for the promisor or not saving the life of another person. A moderate deontologist would readily admit that the constraint against promise breaking has thresholds, that in these cases the threshold is met, and that the infringement is therefore permissible. An absolutist cannot endorse this answer, yet she may argue that any promise is tacitly subject to various unexpressed background conditions. Both parties understand that a routine promise is subject to the condition that keeping it would not entail enormous monetary costs to the promisor or the abandoning of a person whose life the promisor can save. Hence, nonperformance under these circumstances infringes no constraint. The parties’ presumed will underlies both the absolutist’s justification of nonperformance on the grounds that the promise was never intended to be kept under extreme circumstances and the economic argument that contractual obligations are not ordinarily meant to apply when nonperformance produces more good than does performance. The similarity between the two arguments is further highlighted by Shavell’s choice of examples. Practically all the illustrations he brings (and those used in his survey) involve nonperformance due to unexpected hardship for the promisor or unexpected lack of interest in the performance by the promisee. These cases verge on impossibility, impracticability, or frustration of purpose. Shavell makes almost no reference to nonperformance due to the promisor’s desire to strike an alternative, more lucrative bargain—the paradigm of efficient breach in the economic literature. This choice of examples camouflages the first 17. Steven Shavell, Is Breach of Contract Immoral?, 56 Emory L.J. 439 (2006). contract law 265 difficulty in Shavell’s argument: While many people might justify nonperformance in impossibility-like situations, it is doubtful that they would justify it when nonperformance is not meant to avoid losses but rather to facilitate larger profits. Committed consequentialists would justify nonperformance in both cases, and, in fact, deny that the two are different. But this is beside the point, as Shavell aims to demonstrate that the efficient breach doctrine is not immoral under commonsense morality. Shavell employs what he describes as a “simple and natural” definition of morality: “performance is morally required in a contingency if and only if the parties did specify, or would have specified, performance in that particular contingency.”18 While Shavell—like the absolutist deontologist—may be right that the parties would have specified that performance is not required in impossibility-like circumstances, we doubt that they would feel the same way in cases of nonperformance due to the promisor’s desire to accrue greater profits and keep them for herself.19 The comparison to the absolutist’s argument helps to reveal another difficulty with the efficient breach theory. In the unexpectedly high monetary costs and life-saving examples, absolutist and moderate deontologists may differ regarding the question of compensation. Compensating the promisee for her losses seems appropriate in at least some instances of permissible infringements of constraints.20 If, in contrast, the promisor has not infringed any constraint because she did not undertake to perform under certain circumstances in the first place (the absolutist’s argument), then presumably no promise was broken, and no compensation is owed. Returning to the efficient breach argument, assuming we face a contingency in which the parties would not have specified performance, why should the promisor pay damages when she was not expected to perform anyway?21 18. Id. at 440. 19. See Baumer & Marschall, supra note 7, at 164–67 (providing empirical evidence that businesspeople view a deliberate breach as unethical); Wilkinson-Ryan & Baron, supra note 7; Daphna Lewinsohn-Zamir, Beyond the Bottom Line: The Complexity of Outcome Assessment (working paper, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1479051). We doubt that the promisee would have authorized a unilateral breach even subject to receiving some share of the extra profits. Most probably, the parties would have agreed that if such an opportunity comes up, they would renegotiate nonperformance and sharing of the extra gains. 20. Kagan, supra note 3, at 128–30. 21. Seana Shiffrin, Could Breach of Contract Be Immoral?, 107 Mich. L. Rev. 1551, 1556–59 (2009). There may be cases (primarily when the promisee is risk-averse and the promisor 266 law, economics, and morality Given the hypothetical nature of the parties’ presumed intentions, economists may reply that in cases where the parties would have exempted the promisor from performance because it would be inefficient, they would nevertheless require the promisor to pay a sum of money equal to the promisee’s expectation interest, thus inducing only efficient breaches. Put differently, the promisor’s obligation should be interpreted as an option to perform or pay damages.22 Even this reply is, however, unpersuasive in most cases. In this hypothetical agreement, the promisor’s nonperformance could only be considered moral if she exercised the option, that is, if she concomitantly offered to pay damages (unless there is a bona fide disagreement regarding the existence of breach or the loss to the promisee). This is seldom the case, especially in adjudicated disputes. Therefore, even if court-awarded damages put the promisee in the same monetary position she would have occupied absent the breach (which is not ordinarily the case), nonperformance would still be immoral.23 In fact, the immorality of the breach would not disappear even if the court would compel the promisor to perform her obligations through the award of specific performance. The final—and most powerful—critique of Shavell’s argument also echoes the moderate/absolutist debate. Nobody denies that if a contract explicitly specifies that performance is not required under certain circumstances, or that a substitute payment is optional, nonperformance in those circumstances does not constitute promise breaking. Even absent such explicit specification, if that is a reasonable interpretation or supplementation of the contract, no promise breaking is involved. In such cases, not only is risk-neutral) where the optimal arrangement would be to allow for nonperformance subject to the payment of a sum of money equivalent to expectation damages, as a sort of insurance (see infra p. 295). But this is not the case where the promisee is risk-neutral or both parties are risk-averse. 22. See, e.g., Shavell, supra note 17; Jody S. Kraus, The Correspondence of Contract and Promise, 109 Colum. L. Rev. (forthcoming). This understanding of contract has a respectable pedigree. See Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 462 (1897). But see Joseph M. Perillo, Misreading Oliver Wendell Holmes on Efficient Breach and Tortious Interference, 68 Fordham L. Rev. 1085 (2000). 23. Cf. Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 Harv. L. Rev. 708, 728 (2007); Kraus, supra note 22. Kraus emphasizes the difference—overlooked by economic analysis—between promising to do X or pay damages for breaching the promise to do X, and promising to do X or pay a similar sum of money, where payment of money constitutes performance. Most promisors would charge more to make the first promise, because in addition to the costs of doing X or paying money, it also imposes the reputational and personal costs of breaching a moral obligation if the promisor does not do X. For further critique of Shavell’s argument. at 589–623. A Brief Doctrinal Background The rules pertaining to mistake and misrepresentation in the contracting process are rather complex. See also Steven Shavell. circumstances. it must be integrated with deontological constraints. and in the following section in the context of performance and breach.15. See. Validity. Rev. L. Constrained Economic Analysis of Mistake and Misrepresentation • 1. Why Breach of Contract May Not Be Immoral Given the Incompleteness of Contracts.2–9. 25. Hein Kötz & Axel Flessner. and Content of Contracts. 1479 (2009). Farnsworth on Contracts §§ 4. While Shavell argues that standard economic analysis is compatible with commonsense morality.4.contract law 267 nonperformance not immoral. §§ 9. they actually have nothing to justify. See generally Restatement (Second) of Contracts §§ 151–73 (1981). and sometimes grant her monetary relief (even in circumstances that do not render 24.. 107 Mich.25 All modern legal systems let the misinformed party avoid the contract under some. Vol. 2004). by Tony Weir.” Here lies the crucial difference between deontological theories attributing inherent value to private will and the economic theory which values free will only instrumentally. others try to provide an economic rational for prevailing moral and legal intuitions concerning breaches and remedies. we demonstrate such integration in analyzing the doctrines of mistake and misrepresentation. Misrepresentation (1988). David K. Rev. “performance is morally required. Oren Bar-Gill & Omri Ben-Shahar. notwithstanding that under Shavell’s own definition. 1: Formation.9–4. it is not even a breach of promise. . that to make economic analysis of contract law morally acceptable without relinquishing the insights gained from economic methodology. 1569 (2009). L. the efficient breach doctrine favors breach. e. 2 Farnsworth. 107 Mich. The economic approach advocates efficient breach—a breach whose benefits exceed its costs—even when the contract clearly and explicitly does call for performance and excludes substitutive money payment. see Shiffrin. id. In such cases. while both absolutist deontologists and consequentialists can justify nonperformance in these cases. In the next section. Contract and Third Parties 171–208 (trans. Allen. 1997) (providing a broad comparative analysis of the subject).g. supra note 21. Thus. European Contract Law. 1 E. D. Allan Farnsworth. An Information Theory of Willful Breach.24 We conclude. but not all. at 465–501 (3d ed. 268 law.. Heckathorn & Steven M. 168. Restatement (Second) of Contracts §§ 160–162. supra note 26.27 Further distinctions are drawn between different types of transactions. L. 170–88 (1999). Sheldon Gardner & Robert Kuehl. supra note 25. Numerous additional factors. See. 1989). Maser. Pub. 689–707 (1989) (arguing that where merchants “have ample endogenous resources for private contracting. at 166. A Bargaining Theory Approach to Default Provisions and Disclosure Rules in Contract Law. 430–434. Acquiring an Historical Understanding of Duties to Disclose. Unless the other party fraudulently deceived the misinformed party. L. 395–435 (2d ed. distinctions are made between mistakes actively induced by the other party.. Treitel on the Law of Contract §§ 9-123–9-154. in Contract Law Today. e. In developed economies.g. We shall mostly leave this body of law outside of our discussion.. Allen. mistakes the other party knowingly or recklessly failed to correct. Fraud. at 21–23. 2007). Rev. play a significant role as well. Half-Truths: Protecting Mistaken Inferences by Investors and Others. 29. Barry Nicholas. Cf. The Pre-contractual Obligation to Disclose Information: English Report. supra note 25. at 178–83. whether the informed party took active measures to conceal information. Distinctions are commonly drawn between a common mistake and a unilateral one. Peel.” court intervention in the form of imposing legal disclosure duties is unnecessary). 104 Comm. J. and the mental state of the party who provided the incorrect information or who failed to provide the correct one. commercial transactions— where disclosure duties are minimal—to consumer transactions—where the supplier’s duties are maximal. at 374–83. e. §§ 9-026– 9-041. Consumer Protection Law 63–72. at 424–40 (12th ed.29 26.. Kötz & Flessner.g. Edwin Peel. and Warranties.J. . Douglas D. See. id. Langevoort.26 All legal systems also take into account the seriousness of the mistake. 427–29. and morality the contract voidable). special rules apply to disclosure and deception in the stock market. Jules L. Geraint Howells & Stephen Weatherill. 87 (1999). 28. e. from speculative. and mistakes the other party could not have reasonably prevented. in Contract Law Today: Anglo-French Comparisons 151 (Donald Harris & Denis Tallon eds. 9-129–9-130. 12 Harv. See. Jacques Ghestin. Coleman. §§ 9-013–9-016. False assertions are usually treated more severely than nondisclosure. misinformation renders a contract voidable only if the mistake refers to a fundamental or material fact affecting the decision to conclude the contract or to contract under the agreed terms. where transactions are usually done anonymously through institutional intermediaries. 52 Stan. 9-133–9-145. and within unilateral mistakes. at 367–69. 2005). The Precontractual Obligation to Disclose Information: French Report. Pol’y 639.g. economics. which in turn requires classifications of nonverbal gestures and distinctions between half-truths (inducing false inferences) and mere silence. 27. Peel. L.28 Fiduciary relationships give rise to stricter precontractual disclosure duties. such as whether the uninformed party had equal access to the information. Donald C. supra note 25. supra note 28. Only under this presumption may the contract be expected to benefit both parties (and society at large).30 The ambiguities resulting from this trend. Ghestin. Accordingly. the vast complexity of the rules.31 It follows that a misrepresentation by one party is likely to detract from the contract’s efficiency. 7 J. Disclosure duties prevent duplicate searches when one party already possesses the relevant information. and then discuss the deontological perspective. contracting parties would never be able to rely on the information provided by the other party and would have to waste considerable resources in discovering the truth for themselves. the general trend in the past century has been to move away from notions of caveat emptor toward greater solidarity in negotiation. § 4. 1 Farnsworth. 2. even if initially the mistaken party is better able to prevent the mistake. at 112. risks. supra note 4. Kronman. Disclosure. 1. Information. supra note 4. however. . benefits. The Rise and Fall of Freedom of Contract 771–78 (1979). a disclosure duty is warranted. and the major practical importance of errors and misrepresentations in the contracting stage. Anthony T. meaning stricter prohibitions against deceit and increased disclosure requirements. Ordinarily. Gardner & Kuehl. Trebilcock. supra note 25. supra note 28.11. and prospects involved in the contract. have sparked lively theoretical discussions.32 30. We shall first describe the main contributions of standard economic analysis in this area. Standard Economic Analysis The economic efficiency of contracts presupposes that the parties are optimally informed about the costs. prohibitions against deceit and precontractual disclosure duties are prima facie efficient. Mistakes. she is often able to rectify it more cheaply. As for disclosure duties. Legal Stud. the cost of transferring the correct information to the uninformed party is small and its benefit clear. and that whenever one party possesses information that may affect the other party’s decision whether to contract and under what terms. Deliberate misrepresentation is inefficient because it disseminates misinformation.contract law 269 While there are considerable variations among legal systems. at 470–78. and the Law of Contracts. Atiyah. Were it allowed. 32. It should be noted. Patrick S. 2–8 (1978). Trebilcock. at 102. once the other party becomes aware of the mistake or has reason to know about it. 31. Third. Choice of communication’s form and substance is significant especially when the relevant information is complex.33 Furthermore. Quality Testing and Disclosure. 16 Rand J. See Sanford J. L. that communication costs are not always trivial. Matthews & Andrew Postlewaite. when consumers know that a manufacturer acquired information about the risk of a product that it manufactures. 461 (1981). Similarly. Disclosure duties and prohibitions on deception may be unnecessary where concealment of information is not feasible or where sharing of accurate information is expected without legal rules. and so forth. rather than encourage. when information is verifiable and fraud is forbidden. For example. 92 Va. Econ. See. Econ. economics. 33. Steven A.. Taking Information Seriously: Misrepresentation and Nondisclosure in Contract Law and Elsewhere. if the product is of the highest quality. Milgrom. Asher Wolinsky. e. the seller knows that the buyer will infer from her silence not only that the object is not of the highest quality (in which case the seller would not have kept silent). be qualified. A seller of a second-best product would therefore also reveal this information. Second.g.. Rev. 647 (1983). Finally. if a buyer has made inquiries about the sale object. 565 (2006). e. Sometimes the uninformed party can infer from the behavior of the other party what information the latter holds. they can infer from the manufacturer’s omission to disclose the results of the research that the product is of high risk. and morality This initial conclusion must. Grossman. or even that such acquisition of information is feasible. . dishonesty may facilitate efficient transactions when full candor would thwart contracting. Econ. Suppose that prior to contracting only the seller knows the quality of her product and that the buyer will observe the quality thereafter. First. 34. and the attention span of the uninformed party is limited. Now. The Informational Role of Warranties and Private Disclosure of Product Quality.34 Disclosure duties may thus be unnecessary. however. Stud. See. If the object is of second-best quality. Otherwise. L. 380 (1981). but also that it is not of the second-best quality (for a similar reason). Paul R. 328 (1985). in order to charge a higher price. See Richard Craswell. Prices as Signals of Product Quality. the seller may learn about the buyer’s information from the content of the buyer’s offer or from her mere willingness to negotiate. Good News and Bad News: Representation Theorems and Applications.g. At least four types of considerations may militate against antideception rules and disclosure duties. the dissemination of information in the market. the buyer would infer from the seller’s silence that the object is not of the highest quality and will be willing to pay less for it. disclosure duties and antideception rules may hinder. & Econ. such prohibitions and duties may be superfluous if people can infer from the behavior of the other party what information the latter holds. the seller will certainly tell the buyer. such rules may adversely affect the incentive to acquire information in the first place. and the seller knows about those inquiries because they required her cooperation. 24 J. 12 Bell J.270 law. economic incentives may suffice to induce disclosure. 50 Rev. contract law 271 Social norms and moral convictions can reinforce honesty and sharing of information as well. 15 Harv. and purely distributive information. supra note 32. L. L. 137–42 (1982). 61 Am. Saul Levmore. Barnett. a disclosure duty weakens the bargaining power of the information holder and reduces her share of the contractual pie. cost-effective investments in acquiring productive information are desirable. at 279–86. Cooter & Ulen. As keeping silent in response to such a question inevitably signals that such information does exist.L. Rev. Randy E.35 Arguably. 73 Mo. Hypothetical Consent. supra note 33 (arguing that imposing disclosure duties on manufacturers could discourage product testing). at the very least. or socially beneficial information. sellers should not be allowed to ask prospective buyers whether they possess any information that might increase the value of the sales object. Anthony Kronman has famously argued that while sharing information is likely to promote contracts’ efficiency. Rational Bargaining Theory and Contract: Default Rules. Jack Hirshleifer. Econ. but actually undesirable. It therefore dilutes her incentive to invest in acquiring the information ex ante. Pol’y 783. 794–801 (1992). Rev. This argument distinguishes between deliberately and casually acquired information. while investment in acquiring distributive information is perfectly 35. Securities and Secrets: Insider Trading and the Law of Contracts. 20 (1994).36 Kronman’s argument disregards the important distinction between productive. the Duty to Disclose. The Private and Social Value of Information and the Reward to Inventive Activity. Rev. J. disclosing the fact that a party possesses deliberately-acquired. . 37. such duties should be imposed with great caution). having an adverse effect on the incentive to acquire information in the first place. Acquisition and Disclosure of Information Prior to Sale. to eliminate the disincentive for information gathering. Kronman. 286. Steven Shavell. Borden. See also Matthews & Postlewaite. and Fraud.37 From a social point of view. which does not contribute to the total welfare. But see Michael J. Disclosure duties and prohibition on lies may not only be unnecessary. Mistake and Disclosure in a Model of Two-Sided Informational Inputs. Conversely. 36. efficiency may require that buyers be allowed to lie in such circumstances. which enhances aggregate utility (such as technological innovations or information about the location of useful minerals). & Pub. as the information—such as a scientific discovery—is inaccessible to the uninformed party). Econ. 117. and entails that disclosure duties should apply to the latter only. 25 Rand J. 667. 68 Va. 688–96 (2008) (pointing out that sometimes. at 9–18. 561 (1971). supra note 11. infra p. secret information does not necessarily deprive her of most of her bargaining power. but only enables its holder to get a greater share of the contractual surplus (such as mere foreknowledge). and thus no disclosure duty should apply to such information (or. we now turn to the claim that disclosure duties may actually reduce. in turn. supra note 32. increases the demand or the supply of that asset. information holders may well opt for the latter. a bidder may acquire information about a prospective project to outbid her competitors. . Further complications stem from the fact that often the same piece of information has both socially beneficial and distributive effects. Bus. at 25. economics. & Finance 148 (2007). Depending on the structure of the market. and morality rational from the point of view of the prospective bargainer. For example. the dissemination of information in the market. prices reflect the supply and demand for any asset. 39. In such cases. brings the asset’s price closer to its true value given the new information. When a participant in the market possesses favorable or unfavorable information regarding a certain asset or expected market fluctuations. productive information requires further qualification.L. Arguably. rather than enhance. This. The incentive to effectively use one’s property and to look after one’s health may be strong enough to secure the obtaining of the relevant information. the concern that disclosure duties might excessively reduce the incentive to acquire beneficial information may be overstated. A Revised Economic Theory of Disclosure Duties and Break-up Fees in Contract Law.272 law. 13 Stan. a strong incentive to acquire productive information may stem not only from the prospect of gaining informational advantage over one’s counterpart but also from a desire to gain such advantage over one’s competitors. thus creating accurate incentives for their production and consumption. disclosure duties are likely to obstruct this process. thus 38. The proposition that no disclosure duty should apply to deliberately acquired. even if a precontractual disclosure duty is imposed on land vendors and on people purchasing life insurance.39 Having discussed the arguments that disclosure duties and antideception rules may be unnecessary and may adversely affect incentives to gather information in the first place. Facing a choice between disclosing information and refraining from making the contract. based on privately held information. In a well-functioning market.. the mere buying or selling of considerable amounts of that asset.38 More obvious examples would be information a landowner deliberately obtains about her property and medical information a person gets from undergoing a health check. Ofer Grosskopf & Barak Medina. Kronman. An effective way to eliminate the incentive to invest in acquiring such information is to impose a disclosure duty. J. it is socially wasteful. 1672 (2003). does not disclose this information to the seller and buys the parcel at its regular market price. Rev.40 In response to this argument. in the absence of information about the oil. each landowner might demand an excessive price. at 794–801.43 The appropriate scope of the argument that nondisclosure facilitates efficient dissemination of information thus merits careful delineation. 351 (1991). 340–46. The fourth and final type of qualification to the prima facie efficiency of antideception rules and disclosure duties refers to situations in which nondisclosure and even lies may facilitate efficient transaction that would otherwise fail. Laidlaw v. Assume. 41. 91 Cal. that a certain project requires assembling a considerable number of parcels. Organ. Suppose that a buyer. Lloyed Cohen. nondisclosure does not send the right signal to the market. Disclosure in Contract Law. Rev. the social benefit from the transaction may be smaller than the costs of obtaining the foreknowledge ex ante.contract law 273 depriving the market of valuable information. Wonnell. 15 U. Legal Stud. the entire project will not come to fruition). at 1669–73. supra note 36. Eisenberg. landowners of comparable parcels (but with no prospects for oil) may falsely infer that their parcels are more valuable than they are. 41 Case W. 20 J. it has been pointed out that when information pertains to a specific asset in a market of heterogeneous assets.41 Even when commodities are homogenous and the privately held information pertains to the entire market.42 or if the information holder is only capable of buying or selling a small quantity which is unlikely to affect market prices (which might have well been the case in Laidlaw). 42. and it legitimizes the nondisclosure of mere foreknowledge. This would be the case if the information is expected to become public shortly (as in the famous Laidlaw case). 43. Holdouts and Free Riders. Melvin A. which could frustrate the 40. L. (2 Wheat. . for example. supra note 41. 329. 1645. Moreover. This consideration applies to both deliberately and casually acquired information. Revealing the entrepreneur’s plan to prospective sellers would result in a market failure known as a “holdout” or an “assembly problem.) 178 (1817). even if the price paid is somewhat higher than the regular market price. The Structure of a General Theory of Nondisclosure. 44.S. Christopher T. this transaction signals that there is no oil in that parcel. 351–60 (1992). If anything. L.”44 Exploiting her monopoly power (without the consent of all landowners. Res. Eisenberg. Barnett. who has a reason to believe that a certain parcel contains oil. 46. prepared by the Commission on European Contract Law 232 (Ole Lando & Hugh Beale eds. 451 (2004) (advocating a disclosure duty but agreeing that “there should be an exception if one of the parties has expended money or effort to acquire the information”). L. J. 829 (2003) (arguing that economic analysis of contract law in general has largely failed to explain. Mistake in Contract Formation. James Gordley. on the basis of a large-scale statistical survey of American cases.J.274 law. . at 141–44.47 At the same time. or even lying about. Comp. See also Eric A. 3. Concealing. that courts are not more likely to require disclosure when the information is casually acquired as opposed to deliberately acquired). Deontology and Deception A vast philosophical literature debates the definition and the moral wrongness of lies and deceptions. in Stanford Encyclopedia of Philosophy (2008).stanford. Deception in Morality and Law.edu/entries/lying-definition. the purpose of the purchase may thus facilitate efficient transactions. Posner. Larry Alexander & Emily Sherwin. e.. 280–81. supra note 36. while lying requires an active assertion. 1795. 91 Va. 49. 47. economics. deception requires no assertion 45. some normative implications of these analyses—including the unqualified endorsement of lies in certain circumstances—are problematic. deceiving is defined as intentionally causing another person to have a false belief.45 In the same vein.. Krawiec & Kathryn Zeiler.48 It is therefore worth examining the deontological perspective and its possible contribution to economic analysis of these issues. These analyses also largely fail to account for extant legal doctrines. 22 Law & Phil. See. The Definition of Lying and Deception. 52 Am.46 These analyses have appreciably contributed to our understanding of the potential effects of disclosure duties and antideception rules on the contracting parties and on society at large. Parts I and II. 393. lying about one’s reservation price may arguably facilitate successful bargaining in bilateral monopoly scenarios. 1818–21. contract law). Lying is a special case of deceiving: making an assertion the speaker believes to be false with the intention to deceive another person about the content of that assertion.g. Levmore. 2000). See also infra pp. Kimberly D.49 Thus. Mahon. Some of the economic insights have become accepted wisdom even outside of the law and economics literature. http://plato. 433. See generally James E. Common-Law Disclosure Duties and the Sin of Omission: Testing the Meta-Theories. Generally speaking. 112 Yale L. 441–45 (2003). Economic Analysis of Contract Law After Three Decades: Success of Failure?. or to justify reform in. Rev. L. Principles of European Contract Law. 1856–73 (2005) (arguing. and morality entire project. 48. one may contend that at least some of these harms are either uncertain or insignificant.53 Whatever their effects in any particular instance. or of actively/ intentionally deceiving. The Right to Lie: Kant on Dealing with Evil. & trans. and in fact essential for healthy human relationships (and hence truth telling is morally overrated). and that some lies are actually benevolent. Immanuel Kant.contract law 275 (one may say things or behave in a way she knows will cause others to draw false inferences. does not respect the rationality of the deceived. 53. who advocated an absolute prohibition on false assertions. frustrates her typical preference not to be deceived (according to a preference theory). her capacity to decide for herself on the basis of true facts what ends she would like to pursue. On the negative effects of lying on the liar and her self respect. see David Nyberg. Lying: Moral Choice in Public and Private Life 23–28 (1978). lying manipulates one’s reason. Abbott ed. Aff. It may be argued that the very act of lying. see Sissela Bok. Right and Wrong 62–69 (1978). in Kant’s Critique of Practical Reason and Other Works on the Theory of Ethics 361 (Thomas K. On a Supposed Right to Tell Lies from Benevolent Motives. Charles Fried. 51. 330–37 (1986). held that lying destroys the human dignity of the liar. 15 Phil. The Metaphysics of Morals 182 (Roger Sullivan ed. According to this view. Thus. without asserting anything) and may involve mere silence. Mary Gregor trans. and is likely to make her unhappy if and when truth is revealed (according to a mental state theory). then not every lie—and certainly not every deception—infringes a constraint. Kant. For the view that deception is often beneficial.51 Whether or not active/intentional deception necessarily harms the deceived. . Immanuel Kant. supra note 3. Christine M. at 108–13. and fails to treat her as an end. Lying is therefore always 50. Kagan. The Varnished Truth: Truth Telling and Deceiving in Ordinary Life (1993). As mentioned above. an assertion implies truth telling. 6th ed. 1996). lies are said to violate a constitutive rule of language use. According to this universal rule. 325. 52. & Pub...52 While physical coercion uses someone’s person as a means to the coercer’s ends. It thus directly violates her autonomy. Lying and other forms of deception that actively/intentionally inflict harm on the deceived infringe the deontological constraint against harming other people. those who deny that there is an independent constraint against lying may insist that this disrespect for autonomy is harm in itself. if lying/deceiving is wrong only because it infringes the constraint against harming other people. inevitably infringes the constraint against harming others since it adversely affects the autonomy of the victim (according to an objective theory of well-being). Korsgaard.. many ethicists believe that lying is inherently wrong even if it causes no harm.50 In response. 1923). lying may be distinguished from saying things that are technically true but are known or even meant to induce false inferences (such as half-truths). regardless of its concrete outcomes. The Object of Morality 83–85 (1971). see Thomas E. 36–41 (Michael Lewis & Carolyn Saarni eds.. may be seen as promise breaking (the implicit promise to tell the truth).. The distinction between active deception and nondisclosure follows the basic deontological distinction between commission and omission and reflects widely held moral intuitions. MacIntyre. based on the distinctions between commission and omission. Truthfulness. See. supra note 52. 1995). 55. e. supra note 53. absolutists have made considerable efforts to differentiate lying from other forms of deception. Lying may similarly be distinguished from acting in a manner that is known or meant to create a false impression but that involves no assertion. at 341–42. at 69–75. 26 Eur. Feehan.. and between causing a person to continue having a false belief (or continue not having a true one) and not giving up a false belief (or continue not having a true belief). see Alasdair MacIntyre. Bok. at 67. at 18–20.. supra note 46. 143 (1977) (identifying eight different ways of deception.58 Consequentialists. Solomon. many consequentialists grant that 54. For instance. 311–12 (Grete B.57 To eschew the counterintuitive implications of an absolute constraint against lying. Fried. and from keeping silent where others are likely to draw incorrect conclusions from one’s silence.56 Since absolute deontology holds that one must not lie even for the sake of avoiding terrible consequences (such as the murder of an innocent person). supra note 53. at 68. 16 Tanner Lectures on Human Values 307. Jr. such as aggressors and liars. 201 (1996) (finding that subjects judge active lying as morally worse than intentional withholding the truth). the other one being offense against truth). need not struggle with such delicate distinctions and delimitations. and morality morally wrong. between causing a person to have a false belief and not having a true belief. To be sure. 1993). See. . 56. Bok. Hill. MacIntyre. and Moral Philosophers: What Can We Learn from Mill and Kant?. For a critique of this view. What a Tangled Web: Deception and Self-Deception in Philosophy. Fried.54 Relatedly. economics. 58. Chisholm & Thomas D. e. J.g. supra note 53. every lie. The Intent to Deceive. at 14–15. Soc. Social Roles and the Moral Judgments of Acts and Omissions. supra note 54 (discussing offense against trust as one of the two central traditional bases for the immorality of lying. Lies. Phil. 57. philosophers have further narrowed the definition of lying by excluding false assertions made to people who arguably have no right to receive true information. 74 J. On this view. in contrast.g.55 Every lie undermines the mutual faith and trust underlying social life. supra note 52. in Lying and Deception in Everyday Life 30. Jonathan Haidt & Jonathan Baron. that are not considered equally immoral. See also Roderick M. Autonomy and Self-Respect 27–28 (1991). Psychol. Robert C. supra note 54. Alexander & Sherwin. Peterson ed. Geoffrey J. Warnock.276 law. Fried.. at 400–04. nor therefore productive of any material effects. can never.60 Moderate deontology can avoid the extreme implications of absolutism without overly narrowing the definition of lying.. Deriving legal rules from such analysis would also require consideration of the relationships between the contract law doctrines of mistake and misrepresentation and other legal doctrines. such as the torts of fraudulent and negligent misrepresentation 59. consider it as not being accompanied by any other material circumstances. Oxford Univ. to give meaning to a threshold constraint against lying/deceiving. supra note 52.59 Since. the moderate may openly admit that the constraint against lying is infringed and yet hold that the infringement is justified.g.31) ( J. characterization of different contractual environments. sec. take it by itself. Still. however. When the outcomes of compliance with the imperative not to lie are bad enough. See. Utilitarianism. 1. Constrained Economic Analysis (a) Integrating Constraints A fully developed framework for analyzing precontractual mistakes and misrepresentations would require a detailed analysis of the pertinent moral factors. Jeremy Bentham. we will not try to delineate the scope of this constraint in the abstract. and people’s behavior. 60. Rather.. The next section outlines the pertinent constraint and integrates it with the economic analysis of precontractual mistake and misrepresentation. given the institutional and other limitations of the law.contract law 277 lying is usually undesirable and therefore endorse a strong presumption against lying.L. 1991) (1859). nonlegal norms. and a careful study of institutional factors and of the interplay between the law. we shall focus on the specific context of precontractual interactions. and will further restrict ourselves to that part of morality that contract law may reasonably take into account. or anything else is determined by its overall outcomes. upon the principle of utility. 4. John Stuart Mill. constitute any offence at all”). misrepresentation.A Hart eds. 154–55 (John Gray ed..H Burns & H. 1982) (“Falsehood. e. An Introduction to the Principles of Morals and Legislation 205. XVI. para. at 49. . reprinted in On Liberty and Other Essays 129. As we are not interested in normative ethics for its own sake. Bok. XVI. Press. Ch. exact classifications are immaterial. the morality of any presentation. one must draw the contours of the constraint. one need not decide whether lying (or any other form of deception) is immoral per se or only when it adversely affects the interests of the other party. (3) it should only cover intentional deception. we shall only describe how the permissibility of precontractual deception can be analyzed using threshold functions. Based on the above analysis of the economics and morality of precontractual deception and on our general framework for deontologically constrained CBA. exceeds the scope of the present discussion. (4) it should prohibit all forms of deception. In the next subsection. half-truths. (2) it should not cover deception pertaining to one’s reservation value. yet (5) different thresholds should apply to different forms of deception.61 Formulating such fullfledged theory of precontractual deception and disclosure duties. including false assertions. lies which only offend 61. and what choices should be made in this regard. These functions could then be integrated into an otherwise standard economic analysis of precontractual deception and disclosure duties. we shall also propose that— contrary to standard CBA—the doctrines of mistake and misrepresentation should reflect options not to promote social utility. For the law. and (7) all types of costs and benefits should in principle be taken into account within the threshold functions (though some costs and benefits may possibly be discounted when some forms of deception are involved). unlike morality. economics. and morality and the rules of contract breach and remedies. .278 law. and silence. the buyer may either seek to avoid the contract for misrepresentation or sue for the removal of the defect or for damages for a breach of a warranty. When a seller conceals a hidden defect in the sale object. thus excluding inadvertent and negligent misrepresentation or nondisclosure.” that is. deals with “harmless lies. if ever. Willful and negligent nondisclosure gives rise to tort liability in many legal systems. including the available sanctions. rarely. (6) the size of the threshold should be a function of the harm inflicted by the deception. Excluding Harmless Deception To normatively analyze precontractual deception. We propose that. the constraint against precontractual deception should have the following basic characteristics: (1) it should encompass only deception adversely affecting the interests of the deceived (excluding “harmless deception”). to better understand and assess the legal doctrines of mistake and misrepresentation. This broad incidence is justified by the immorality of the manner in which the harm is inflicted. 64. the constraint against precontractual deception would not apply. The general constraint against harming other people does not apply to any interest a person may have.contract law 279 the dignity of the liar and the autonomy of the deceived. or the rules of language. See supra p. .62 The centralist. because the legal enforcement mechanism is rather weak). Plausibly. To infringe the constraint. namely the deception. contracts entail reliance on the honesty and trustworthiness of the other party (inter alia. the constraint against harmful precontractual deception may in principle refer to any harm. In fact. its various institutional limitations. however. his own humanity. but usually only to violations of fundamental rights.64 Deception indicating that a negotiating party is dishonest and unreliable is therefore not necessarily “harmless. because she knows the truth). supra note 46.”). Arguably. the magnitude of the harm to the deceived must not. . at 432 (“[L]egal rules do not track. Nor does law correspond to moral theories that emphasize the effect of deception on the victim’s autonomy. arguments based on the liar’s violation of natural law. However. 42.” 62. even loosely. . Alexander & Sherwin. yet it reveals the dishonesty and unreliability of the deceiver. 63. be too minor. Klass. the deception may be deemed too insignificant to infringe any constraint. as further discussed below. . even if there is a deontological constraint against lying that is independent of the general constraint against harming other people. Insincere Promises: The Law of Misrepresented Intent (2005). If knowing the true facts would not have appreciably affected the decisions of the deceived. an exception to the exclusion of harmless deception should be recognized when deceiving does not affect the interests of the other party (for example. may thus palpably harm the interests of the deceived as it reduces the probability that the promisor will perform her obligations. When deceiving does not affect the interests of the other party. this constraint should not be incorporated into the analysis of precontractual deception. Deception causing even a moderate monetary loss infringes the constraint. and its high operational costs mandate this restraint. Ian Ayres & Gregory M.63 In contrast. save for very short and trivial transactions. Thus. the minimally required harm should vary according to the forms of deception. coercive nature of legal enforcement. Blatant dishonesty between contracting parties. no exception is needed. as in some cases of insincere promises. As Bok points out. supra note 46. and thus about the size of the surplus. lack of information. about the other party’s reservation price. economics. 67 N. yet it is generally accepted that people need not disclose— and may even lie about—their reservation value. Assuming that such practices infringe the constraint against precontractual deception. Often. A buyer who believes that the seller’s reservation price is higher than it actually is and a seller who believes that the buyer’s reservation value is lower than it really is. . e. 750. an otherwise impermissible active/intentional harming of another person is deemed permissible if the latter consents to the harm. This notion may rest on grounds of consent and fairness. or misinformation. Games.g. and morality Excluding Deception as to One’s Reservation Value Conventions regarding legitimate bargaining techniques vary from one market to another. There is.67 Since neither of the parties ordinarily wishes to expose her reservation valuation. she cannot legitimately expect the other party to expose 65. Marcel Kahan. Fried. may obstruct contracting due to wrong expectations and misunderstandings. A seller is not required to disclose the minimal price at which she will be willing to sell and in some markets may even mislead the buyer to believe that selling at a lower price would drive her out of the market. 67. and Securities Fraud. however. this argument is weaker the less one’s choice to bargain under these rules is voluntary. Bok. at 129–33.66 At the same time. bargainers cannot complain about the rules of the game in which they have freely chosen to participate. L. Cf.280 law. a prevailing notion that at least some of these deceptions (as well as mere puffs) are permissible regardless of the good they produce (if at all).U. Just as a boxer cannot legitimately complain when her opponent punches her. Such consent is plausibly implicit when people knowingly and voluntarily participate in bargaining where these forms of deception are deemed legitimate and not incompatible with standards of fair dealing. it is difficult to determine whether enough good outcomes are produced by these practices to render them permissible. Lies.Y.. 66. supra note 52. at 444–47.65 One may conjecture that in some contexts such deceptions are efficient. Alexander & Sherwin. 753–60 (1992). Rev. at 80–85. may be more likely to reach an agreement than parties who know for certain that there is a huge gap between their reservation values. supra note 4. A buyer may create the false impression that she has lost interest in the contract because she can get a better bargain elsewhere. See. Negligence. 76 B. 249 (1996).U. See. Larry Alexander. There may similarly be sound reasons to impose tort liability for negligent misrepresentations. that is. This is because people do not. e. and should not. have nothing to do with deontological constraints as ordinarily conceived. There may be good reasons for the law to render contracts made on the basis of mistaken assumptions voidable even if the mistake was not induced by one of them or was induced inadvertently or negligently. however. as explained above. Stewart Macaulay. Hurd. . however. Soc. Rev. Non-contractual Relations in Business: A Preliminary Study. These reasons. 76 B. and agreeing to a worse bargain than one would have agreed to absent the deception is a harm under our definition. a negotiating party should thus intentionally. 68.69 Intentionality The deontological constraint against deception in precontractual relations does not cover inadvertent or negligent misleading. There is no reason to believe that negotiating parties expect their partners to misrepresent material facts pertinent to contracting decisions. free of deontological constraints. People are sometimes misled by representations about the other party’s reservation price (otherwise. deceive the other party. Rev. Crime.g. 69. 55. and Tort: Comments on Hurde and Simons. Intentionality certainly covers both rare cases in which the deceiver wishes to harm the other party per se. Rev. It is also worth noting that our analysis of reservation value cannot be generalized to all precontractual misrepresentations. 28 Am. 70. 301–02 (1996).contract law 281 hers.68 Note that none of these grounds commits one to the dubious claim that the very fact that the other party is a liar eliminates the prohibition on deceiving. nobody would have bothered making them). and the more common cases in which harming the other party serves as a means to attaining a legitimate goal. believe such representations. The Deontology of Negligence. Heidi M. problematic. not covered by the constraint against precontractual deception). or because no one has a legitimate expectation to any particular division of the transaction’s surplus. and should therefore agree to mutual deception in this regard. One may also argue that deceiving about one’s reservation price is harmless (and thus. at least knowingly.. L. It follows that to analyze the desirability of rules governing inadvertent or negligent misrepresentations and nondisclosure one may use standard CBA. This argument is.70 To infringe the constraint against deception. 58 (1963) (describing the inclination of businesspeople to rely on “common honesty and decency”). 301. L.U. Empirical studies do not point to a dichotomy between people’s expectations regarding behavior in the marketplace and behavior in other contexts. by nonassertive utterances or behavior. 221–23 (2001). The Limits of Morality 151–65 (1989). Alison McIntyre. diverting a trolley to a track on which one person will be killed as a mere side effect of saving the life of an animal standing on the other track violates a constraint. 73. in and of itself.72 At the same time. To use a more familiar example. Since the constraint against precontractual deception that we propose applies only to harmful and intentional deception. behaving in a way intended to make others draw false inferences. 111 Ethics 119. there seems to be no compelling reason to restrict its application to lies (that is. See also supra pp. Doing Away with Double Effect.282 law. and misleadingly staying silent. Arguably. Both in terms of the blameworthiness of the deceiver and harm to the deceived. the fact that the foreseen harm to the other party is a mere side effect—rather than a goal or a means to attaining some legitimate goal—does considerably lower the threshold. which underlies the basic doing/allowing distinction. see supra pp. see Shelly Kagan. a constraint against intentionally deceiving by omission raises concerns similar to those raised by a general constraint against not aiding other people. The fact that disadvantaging the other party (who made the contract on the basis of the false information) is an expected side effect of attaining another goal does not. . 43. and using a person as a means to aiding or saving others. Encompassing All Forms of Deception Deontological theories. her sexual orientation for reasons of privacy. 44–46 and references therein. even in circumstances where this information is not deemed legally irrelevant.73 71. On the distinction between harming a person as a side effect of aiding or saving other people.71 For instance. particularly absolutist theories that prohibit even “harmless lies. See supra pp. or to active deception (including half-truths and nonassertive misleading behavior). Only if attaining the other goal produces enough good outcomes or avoids enough bad ones. On the requirement of proportionality between the good produced by the intended goal and the harm inflicted as a side effect. and morality such as increasing one’s profits. economics. may be as severe as a lie. 72. or even lie about. intentionally misleading assertions). We tend to think that it also covers cases in which the harm is a mere side effect. 60–63. they may refrain from condemning telling half-truths. or by half-truths. 45–57. entail that no constraint is infringed. is the threshold met. For instance. deception by omission. a person may refuse to reveal.” often draw delicate distinctions between lies and other forms of deception. (2) the threshold that has to be met to render the infringement permissible. On setting the size of the threshold.contract law 283 However. (3) half-truths. within the framework of moderate deontology. see generally supra pp. First. An additional requirement might be that the information holder not only knows of the other person’s mistake but also that the mistake is significant in the described sense. the parties implicitly agree to abide by the rules governing these relations. they are no longer strangers. 74. Second. Once people are negotiating a contract. . and (6) mere silence. harmful deception. by voluntarily entering into negotiations. and (3) the type of costs and benefits that are deemed relevant in determining whether the net benefit of the deception meets the threshold. the constraint covers only intentional. (5) evading questions.75 Threshold functions applying to different forms of deception may vary in one or more of the following aspects: (1) the minimum harm necessary for the constraint to be infringed. harmful omissions and not inadvertent or negligent ones. the constraint against deception applies only if the harm inflicted by the deception is large enough. Different Thresholds for Different Forms of Deception While the restriction of the proposed constraint to harmful deception and the move from absolutist to moderate deontology considerably reduce the importance of the distinctions between different forms of deception. it must be a significant piece of information that could reasonably influence her decision to contract under certain terms. Thus. (2) lies in response to a question. precontractual deception may be classified into the following categories: (1) spontaneous lies. Fourth. harmful omission but only intentional. 93–96. Some degree of decency and good faith toward each other may be expected of them. several limitations on the scope of the present constraint assuage this fear of overdemandingness. Arguably. 75. these distinctions are nevertheless important because different forms of deception entail different threshold functions. even an infringement of this relatively narrow constraint may be permissible if the good produced by such an infringement exceeds a certain threshold. (4) nonassertive misleading utterances and behavior. From a deontological point of view. Third. The minimal harm varies from one form of deception to another. it would not suffice that the information holder knows that the other party lacks some piece of information. as noted above. the constraint does not cover any intentional. the constraint applies only between negotiating parties. In addition. in the case of deception by silence.74 Finally. 284 law. Lying is nevertheless clearly permissible in the first case because it prevents horrific outcomes. or explanation does not necessarily imply that no constraint has been infringed. lying would infringe the constraint against deception. MacIntyre. 78. the deceiver would have remained silent. because it enables the investor to reap the fruits of her investment. thereby maintaining the incentive to obtain socially beneficial information. Henry Sidgwick. who invested a lot of money in finding subsurface minerals in the seller’s land. Hence.g. Fried. 1907)..76 We doubt this view. then half-truths and other knowingly misleading utterances are not necessarily different from lies. a means to attain her goal. upon the deceived who has drawn the false inference. supra note 54. There have been suggestions in the philosophical and legal literature that some questions are illegitimate and therefore a lie in response to such a question does not infringe any constraint. economics. while compensation or an apology is indeed appropriate when an innocent person is harmed to promote good outcomes. e. supra note 36.. thus overcoming the constraint. the person who was harmed usually deserves compensation. The two oft-quoted examples are those of the murderer asking about the whereabouts of his intended victim and the landowner asking a purchaser. A common justification offered for this distinction is that the responsibility for the false inference rests. e. and morality within each category. e. See also Langevoort.. Spontaneous lies seem more reproachful than lies in response to a direct question because in the latter case it may well be that absent the question.g. apology. at 336–37. so it seems to us. one may argue that when a constraint is justifiably infringed to advance good outcomes. supra note 26. It is possibly permissible in the second case as well. the morality of the deception depends on whether deceiving the other party is the actor’s intended goal.77 Many ethicists consider lies. In both cases. . See.78 This rationalization is not wholly persuasive. this is not necessarily the case when the infringement is induced by the culpable behavior of the harmed person. to be morally worse than half-truths and nonassertive misleading utterances and behavior. an apology. whether spontaneous or in response to a question. To defend the claim that no constraint is infringed in lying to the murderer. However. supra 53. See. even if the wrongness of the latter lies in the violation of the basic 76. whether she got any information that might affect the value of the land. See. the fact that a person deserves no compensation. The Methods of Ethics 318 (7th ed. or at least an explanation—none of which seems necessary in the present case. or merely a foreseen side effect. Barnett. If we take the speakers’ meaning to be what the speaker invites hearers to understand from what she says. at least partially. 77. at 89. Consequentialists may resort to a similar argument. at 73–78.g. at 799–801. some people may abuse the distinction. It is passive and it does not similarly invite reliance on one’s assertions. or Falsely Implicating. we believe that there are morally significant differences between different forms of deception. Phil. including silence. Cf.” even if the deceiver’s choice is made for other reasons. 79. 81. supra note 26. and conveys a message of moral effort to avoid outright lies. It may even signal to the other party that she should undertake an independent inquiry into the relevant issue. Langevoort. 435. Second.81 In addition.79 Even noncommunicative deception (such as putting on a swimsuit in order to mislead others into believing that one is about to go swimming). Jonathan Adler has argued that by choosing other forms of deception rather than simply lying. Deceiving. At the same time. As one gradually moves from a spontaneous lie to a mere silence. whereas a question posed by the other party forces one to make this decision (and evasion means a decision to deceive). As Adler concedes. Id. at 448–52.contract law 285 rule of language use. 444 (1997). at 91–92 (suggesting to situate half truths “on a continuum roughly half way between the duty to avoid affirmative misrepresentation and the more controversial and contingent duty to reveal hidden private information”). within each category. lessening the strains of commitment. These differences entail different thresholds. the deceiver implicitly undertakes lesser responsibility for the truthfulness of the hearer’s implicature. infringe the constraint against precontractual deception. First. it is quite clear that the other party lacks the relevant information and that she thinks it is material. While we insist that half-truths and other forms of deception. the threshold should be lower for deception which is merely an expected side effect of attaining another goal. in the case of silence.80 Evading a question seems morally worse than mere silence for at least two reasons. once the question is posed. The availability of this choice is desirable as a means to enhance “social harmony. 80. evading a question seems less morally wrong than lying or telling a half-truth. the amount of positive outcomes necessary to overcome the constraint gradually decreases. while in the case of mere silence a person may not know for sure whether the other party possesses the relevant information or whether the information is important for her. . may be seen as an active breach of trust. Lying. the deceiver may repress the need to consciously decide whether to reveal privately held information. 94 J. however. Jonathan E. Adler. though it does not necessarily invite a false inference and does not violate a rule of language use. and facilitating the exchange of information. It differs both in its absolute magnitude and in its magnitude relative to the scope of the contract.49. lying is usually very cheap. or to spontaneously say: “I need your land for pasture.” As Saul Levmore has demonstrated. . Threshold’s Dependence on the Magnitude of the Harm The amount of harm caused by precontractual deception varies from case to case. lies are “naturally” prohibited. we believe that the size of 82. As in other contexts. Borden. Economic Analysis of Law 111 (7th ed. from an efficiency perspective.” and since this investment is socially wasteful. depending on her overall situation. See also Kronman. Richard A. Richard Posner has stated that since the liar “makes a positive investment in manufacturing and disseminating misinformation. and commonsense morality and extant legal doctrine on the other hand.83 To the extent that one accepts that there is a normative difference between various forms of deception—as the law seems to acknowledge—this difference cannot persuasively be sustained on efficiency grounds.82 This statement is problematic. See also Kim Lane Scheppele. 2007). permitting nondisclosure might not be enough to encourage the obtaining of socially beneficial information. at 19. permission to lie is necessary as well. n. but lying about this discovery only requires one to say “no” in response to the landowner’s inquiry whether the purchaser has any special information about the land. Legal Secrets: Equality and Efficiency in the Common Law 164 (1988) (pointing to inconsistency in Kronman’s approval of nondisclosure of deliberately acquired information and his objection to all fraud). economics. supra note 36. Whereas discovering or producing accurate information often involves considerable investments. and morality To be sure. The only way to bridge the gap between standard CBA on the one hand. in the absence of other adequate incentives. is by integrating deontological constraints with CBA of precontractual deception.286 law. Similar harms in similar contracts may have very different adverse effects on the well-being of the deceived. at 692 (pointing out the long-term. 83. For example. Posner. Levmore. discovering subsurface minerals in the vendor’s land may necessitate considerable efforts by the prospective purchaser. at 137–42. adverse effects of permitting lying). supra note 32. For instance. some legal economists argue that while the imposition of disclosure duties should be subject to rigorous CBA. supra note 36. lies are simply inefficient and hence forbidden. See supra pp. 85.86 This distinction is also relevant to deception. at 78–81. Although such long-term effects are not certain and may be chronologically remote. 155. most of the conceivable excluders of types of costs and benefits seem inappropriate. chronologically remote costs and benefits. In particular. such as the premature death of innocent people. 147–49. and probabilistic ones—should not bear on the permissibility of infringing certain constraints. these outcomes are of the latter category: incentivizing people to ex ante obtain socially beneficial information.85 Since the harms intentionally inflicted by precontractual deception are often solely or primarily pecuniary. and 254. this is not a sufficient reason to disregard them. Bok. we maintain that the threshold function should take into account the effects of allowing deception on the incentives to acquire socially beneficial information ex ante. or even discriminating against people on the basis of their skin color. low-probability benefits should be excluded from the threshold function for lies but not from the functions for deceptively evading questions and keeping mum. some types of costs and benefits—such as very small benefits. In some contexts. See also supra pp. infra p. 174–75. or at least further discounted. but not to promote any amount of good consequences. We do 84. 342. See supra pp. 86. Intentionally lying or withholding information is very different from killing. 169–71. . 150.87 Typically. or should be subject to a discount rate. infra pp. benefits and costs that are lexically inferior to the harm prohibited by the constraint. 87. torturing. 93–96. supra note 52. in contractual settings. 91–93. The greater the expected harm. such as prolonging people’s ordinary life expectancy. 195–211. 211–13. or facilitating efficient contracting. and 252–54. Possibly. 86–93. when their probability is very low. the higher the threshold should be.contract law 287 the threshold should be a function of the size of the expected harm. We are less sure whether such effects should be excluded. See supra pp. if deception produces any positive outcomes at all.84 Types of Costs and Benefits In other contexts we have suggested that from a deontological perspective. there is a strong. 342–46. common intuition that an infringement of a constraint may be permissible to avoid sufficiently large bad consequences. disseminating information in the market. Id. the state may be relieved of its obligation on the grounds that its promise was given under an illegal threat or according to a doctrine authorizing the termination of governmental agreements on grounds of public considerations (surely the state cannot avoid the agreement by arguing that it never intended to keep it). its net benefit should be quite sizable (and larger net benefit would be required as one moves from mere silence to half-truths and to false assertions). Kogan v. Military Attorney General. in the interrogation scenario. and morality not suggest excluding such outcomes from the threshold functions. Hence. the suspected terrorist is actually the one who insists that the agreement should be kept. the resulting contracts/agreements are not voidable for mistake or misrepresentation. If. This means that. dealing with the validity of agreement to end a mutiny in a military prison. indeed. in favor of a higher threshold). and the latter was adopted by the court. at 77–96.288 law.D.88 Clearly. Another example is provided by a judgment of the Israeli Supreme Court.89 88. and interrogators of a suspected terrorist may falsely promise to let her free if she would provide information about the location of a ticking time bomb. deception is permissible in these cases. In the loan example. Similarly. Still. a person who desperately needs a loan to finance a life-saving medical treatment may conceal facts relevant to her (in)ability to repay the loan. There are also atypical scenarios in which precontractual or preagreement deception seeks to avoid bad outcomes. After revealing the information. to render deception permissible. the good produced by eliminating bad outcomes should not be subject to any discount rate. the conclusion that the lender cannot avoid the contract does not mean that the borrower need not repay the loan. weighs in favor of subjecting these benefits to a discount rate (or. precontractual deception is more easily justifiable in such cases than in the typical ones. the agreement is not voidable for misrepresentation. which included an undertaking by the authorities not to pursue charges against the inmates. economics. 67 (1997). the fact that the constraint against precontractual deception is ordinarily infringed to promote good outcomes rather than to eliminate bad ones. alternatively. In this case. 51(5) P. 89. To mention but two examples. made between the army authorities and the rebellious inmates. the validity of the contract implies that she should repay it and will be liable for breach of contract if she does not. Both arguments were made by the army authorities in Kogan v. On the contrary. . Military Attorney General. and extrinsic information (particularly about market conditions) (id. 46–47. 92. options (like constraints) have thresholds: when a sufficiently large good (or bad) is at stake. only 6 pertained to deliberately acquired information—the fact pattern of the famous Laidlaw case and much of the ensuing economic literature (id. however. Most precontractual mistake and misrepresentation cases refer to casually acquired information about the particular transaction or the transaction’s object. 33–40. The remaining 20% include both cases in which the deliberately acquired information was intrinsic to the specific transaction (such as latent defects or hidden potential of the property). See also Craswell.contract law 289 (b) Integrating Options This book primarily discusses deontological constraints. are not typical. . are relatively rare”). the option is overridden by the requirement to maximize the overall good. moderate deontology also diverges from consequentialism in allowing people to (sometimes) further their own interests or the interests of their loved ones or their community. according to which only 80% of the cases in their dataset (371 out of 466) involved casually acquired information (Krawiec & Zeiler.92 90. . actually involved intrinsic . rather than promote the overall good. Our (and Craswell’s) assessment is different from the findings of Krawiec and Zeiler’s study. at 568 (stating that cases “where one side makes a costly investment to acquire information . and 98–103. See supra pp. These are primarily the cases in which information is acquired through deliberate and costly efforts.91 The notion of options can help in understanding the law of precontractual disclosure duties. Kagan. 60–63. including cases that do not involve deception. extensive reading of Israeli case law and unsystematic reading of case law from around the world reveals that adjudicated disputes revolving around deliberately acquired information are uncommon. 41. These cases. supra note 48. Since economic analysis centers on incentives for future behavior. The size of the threshold may (or may not) depend on the size of the sacrifice needed on the part of the agent. supra note 3 at 161–70. at 1860). However. Estimating the exact percentage of these cases would require an extensive empirical study of reported and unreported cases. supra pp. See also supra pp. at 1800–02). Only 14 cases in the entire dataset involved extrinsic information and out of these 14. supra note 32. we found that all of the 6 cases (which the authors have kindly directed us to). 91. 98–103.90 Plausibly. Contrary to the authors’ characterization. Yet. at 1838). Deontology allows for agent-relative options. such as negligent nondisclosure. economic analyses of precontractual nondisclosure and deception have naturally paid a great deal of attention to cases where disclosure duties and prohibitions on deception may affect people’s ex ante behavior. Each party still has a substantial incentive to obtain information that could strengthen her bargaining position. especially if the information is complex. if the product is inexpensive and is purchased repeatedly. Even if such inspection is impracticable.290 law. material information that is equally or almost equally accessible to both parties but that only one of them actually possesses. supra note 82. For instance. at 113. and in at least 5 of them the information was casually acquired (one case was unclear on this point). one may add that providing information may be costly. since the costs of disclosure are usually trivial and their contribution to assuring the contract’s efficiency is significant. which are even better than disclosure duties. as the search for information that one party already possesses is wasteful. pointing out that some information is readily available by casual inspection at the time of purchase. We have not examined other cases in the dataset. and hence no disclosure would do. Even if the informed party is unsure whether the other party possesses the pertinent information. The concern that a general disclosure duty would inhibit the incentive of both parties to attain the pertinent information (as each party would expect the other party to get the information and share it) is not particularly worrisome either. economics. 93. it is true. no incentive for deliberate inquiry is necessary. Since in the cases under discussion (which constitute the great majority of cases) at least one party has casually obtained the information. Posner. Sometimes the conformity of the product to the consumer’s needs and taste can be determined by her alone. Richard Posner opposes a general disclosure duty regarding the characteristics of consumer goods. for example. Economists who resent market regulation may find efficiency grounds for restraining disclosure duties even with regard to casually acquired information. Such a duty. information. Take. would reduce the incentives of the other party to attain the same information by herself.93 To these arguments. Even if none of these arguments holds. and morality With regard to casually acquired information—which constitutes the lion’s share of the cases—economic analysis tends to enjoin broader disclosure duties than most legal systems actually impose. a disclosure duty would be efficient. the cost to the consumer of ascertaining the product’s characteristics by using it is still very low—merely the cost of the first purchase. “governmental intervention” in the form of imposing disclosure duties may be unnecessary because competitive pressures would make sellers offer warranties. . but this is not a genuine cost. 95 94. . supra note 41. At any rate. however. According to this principle. When information is equally. 1852–55) indeed found out that “courts are significantly more likely to require disclosure when the transaction was one in which the parties had unequal access to information. Eisenberg’s set of rules is guided by what he calls the Disclosure Principle. accessible to both parties. Just as the recognition of constraints results in prohibiting efficient deception when the amount of good outcomes produced by the deception does not meet the threshold. Melvin Eisenberg has proposed a detailed set of rules to govern precontractual disclosure duties (assuming lies are forbidden).contract law 291 These arguments are more persuasive in some contexts than in others. supra note 83. This principle “puts a thumb on the scale . We submit that incorporating deontological constraints against precontractual deception (and deontological options not to share information) with economic analysis would improve the normative and interpretative analysis of this complex issue. it is easier to legitimize the informed party’s choice to look after her own interests rather than maximize the good. in favor of disclosure. or almost equally. at 111–78. the . “the law should require disclosure of material facts except in those classes of cases in which a requirement of disclosure would entail significant efficiency costs. Scheppele. because the other party is in some way responsible for not getting the information. it is not enough that in a given class of cases a requirement of disclosure would entail some relatively slight efficiency costs. because of the efficiency and moral reasons that support disclosure.94 To conclude: while economic analysis of precontractual deception and disclosure duties has greatly contributed to our understanding of the incentive and allocative effects of conceivable legal rules. at 1648. it seems that the law approves of much more nondisclosure than standard economic analysis could accept. much of the rich philosophical literature on the morality of lying is not directly useful for legal policy-making. To overcome this presumption. Instead. the recognition of options results in allowing inefficient nondisclosure when the loss of welfare due to such nondisclosure does not meet the option’s threshold. in his comprehensive analysis of disclosure in contract law. Krawiec & Zeiler (supra note 48. 95. It seems that the primary ground for this approval lies in the law’s recognition that it should not (and cannot) require everybody to always do what would maximize total utility. At the same time. .” and that what drives case outcomes is the combination of the casual acquisition of information and the unequal access (but see supra note 92). that some such theories fall in line with our general framework. Thus. It is worth noting. at 1813–15. The relative accessibility of the information features prominently in Scheppele’s theory of precontractual disclosure. it neglected some of the crucial normative factors.” Eisenberg. This conception can explain the significance of the accessibility of the information to the other party. We have not tried to formulate a complete theory of precontractual deception and disclosure. Yet. .20c. L. protecting her reliance interest). See generally Treitel. see 3 Farnsworth. and much less so to fungible goods. economics.96 Putting termination aside.H. Principles of European Contract Law. On American law. A Brief Doctrinal Background Remedies for breach of contract may schematically be divided into three types: enforced performance. Henrik Lando & Caspar Rose. 24 Int’l Rev. see G. legal systems largely converge in terms of the remedies actually sought by aggrieved parties and awarded by courts. personal services. 27 Les Cahiers de Droit 785 (1986). On the Enforcement of Specific Performance in Civil Law Countries.292 law. Remedies for Breach of Contract 1. supra note 96.” Id. Treitel. at 359–459. at 43–74. Louis J. For general surveys of the law of contract remedies. and morality • E. 473 (2004). at 1655–56. substitutionary monetary relief. supra note 47. enforced performance is the rule while monetary substitute is the exception. damages are the standard remedy and specific performance the exception. Specific Performance of Contracts in Comparative Law: Some Preliminary Observations. 97. primarily Common Law systems. there are roughly three models regarding the relationships between enforced performance and monetary damages: in some legal systems. Remedies for Breach of Contract: A Comparative Account (1988).1–12. when it is difficult to establish the aggrieved party’s expectation interest (often presumption is overcome only if disclosure would entail significant efficiency costs. & Econ. such as in Germany. specific performance mostly refers to the transfer of unique objects (primarily real estate). Ordinarily. damages for breach of contract do not aspire to put the aggrieved party in the position she would have been in had she not made the contract at all (that is. or to complex projects where compliance is hardly observable or verifiable. at 148–383. Notwithstanding these dissimilar points of departure. and in yet other systems. 96. In practice. Romero.97 The declared goal of damages in practically all legal systems is to bring the aggrieved party as close as possible to the position she would have been in had the contract been duly performed (thus protecting her expectation interest). in others. supra note 25. such as the French. §§ 12. enforced performance is the standard remedy for breach of some types of obligations and monetary damages the remedy for other types of obligations. and termination of the contract (ordinarily coupled with recovery of property transferred or money paid). at 162. Privatrecht 248. 3 Farnsworth. supra note 96.contract law 293 due to the speculative nature of the question how much she would have profited from the contract had it been performed). and some of them are simply ineffective. or losses avoided. Gain-Based Damages: Contract. the contract benefits are at least as large as the costs. 178 (1993). at 284–88. at 334. practically all legal systems deny the right to reliance damages when the breacher proves that reliance surpasses expectation. Id. Restitution and Contract (1998). however. e.20. 101. This approximation assumes that people make profitable contracts. in general. Hanoch Dagan. Tort. under most circumstances.7(5). infra pp. when these gains exceed the aggrieved party’s expectation interest (thus denying protection of the disgorgement interest). See Restatement (Second) of Contracts § 349.102 To some extent. See. The Law of Restitution §§ 4. by the breacher as a result of the breach. Dobbs.g.99 Sometimes. 1 George E. See generally James Edelman. Such stipulations. The Missing Interest: Restoration of the Contractual Equivalence. the parties may contract around ordinary remedy rules. the aggrieved party is entitled to protection of her restitution interest. § 12. . for example. 100. Andrew Skelton. Dobbs Law of Remedies §§ 12. that is.98 Rarely does a legal system entitle the aggrieved party to the extra profits made.. 99. yet. At the same time. 2001 Zeitschrift Europ. supra note 25. at 363–427 (1978). at 194–201. the aggrieved party can get restitution in excess of expectation. hence. emotional harms. Equity and Intellectual Property 149–89 (2002).1-4.6. Der Anspruch auf Ersatz des negativen Interesses bei Nichterfüllung von Verträgen.100 Legal systems differ regarding the availability of damages for nonmonetary. Dan B. to have the benefits she has conferred on the breaching party restored to her. Palmer. Torsten Schackel. The Law and Ethics of Restitution 282–89 (2004). 12. such damages are less obtainable than damages for monetary losses. the reliance measure may serve as a minimal approximation of her expectation interest.101 Punitive damages are not ordinarily awarded for breach of contract. 98. as well as other agreed deviations from ordinary remedy rules. 93 Va. supra note 25. supra note 47. 102. at 78–79. 59 (2007). The parties can. stipulate the damages for breach. 3 Farnsworth.7(1). Rev.16. Treitel. In most legal systems. A fifth goal of contract remedies is to restore the contractual equivalence by adapting the aggrieved party’s obligations to the actual performance by the breaching party. 249–50 (German and Austrian law). are subject to judicial scrutiny. Principles of European Contract Law. especially when the contract has been terminated for the breach. at 422–26. L. 303–05. See Eyal Zamir. § 12. see Shavell. 104. Full expectation damages make the promisee indifferent between performance and breach. Rev.). Barton. at 300 (maintaining that the parties’ “power to bargain over their remedial rights is surprisingly limited”). while at the same time make the promisor (and society at large) better off. and even later (what measures to take to mitigate the loss in case of breach. 3 Farnsworth. economics. Breach of Contract. etc. This is the well-known efficient breach theory. and to breach and avoid such precautions if the breach is efficient. supra note 100. remedies for breach of contract are primarily evaluated according to the incentives they create for the parties at different stages of the contractual process: prior to and at the time of contracting (for example. John H. Legal Stud. how much effort and what precautions to take to ensure performance and how much to look for alternative opportunities. to what extent to rely on the contract and whether to prepare for its potential breach). economic analysis endorses rules creating incentives for behavior that would maximize aggregate social utility. Focusing on the performance of the contract and the promisor’s precautions. The Economic Basis of Damages for Breach of Contract. 1 J. In any of these stages and with regard to both parties. supra note 11. at 245–73. 273 (1970). how much information to gather before contracting and what information to share with the other party). whether to sue for the breach. For early versions of the theory.104 A perfect protection of the promisee’s expectation interest through damages supposedly creates an optimal incentive in that sense. . Birmingham. and Economic Efficiency. for the promisee. and under what conditions. Damage Measures. supra note 25.294 law. For a formal analysis. which.103 2. Standard Economic Analysis From an economic point of view. § 12. economic analysis begins with the notion that remedy rules should induce the promisor to perform and take precautions to avoid breach as long as performance and such precautions are efficient. Expectation damages are necessary because they force 103. § 12. the decision whether to enter into a contract.18. means maximization of the joint contractual surplus.9. at the performance stage (whether to perform or to breach). 277 (1972). in the absence of externalities. and morality Freedom of contract is thus more restricted in the domain of remedies than in other aspects of the contract’s content and performance. with whom. see Robert L. after contracting (for the promisor. Dobbs. 24 Rutgers L. Ulen. However. at 261–67. Daniel Friedmann.J. 341 (1984). 12 J. L. In that case. 18 J. Thomas S. If the promisee is risk seeking. . creating optimal incentives for the promisee’s reliance requires denying her of any damages for breach or alternatively awarding her damages uncorrelated to either her expectation or reliance interests. or sharing the prospect of extra profit from an alternative transaction by setting the damages above expectation. Finally. A. 271 (1979). 45 U. Kronman. Rev. L. Mitchell Polinsky. Often. it also increases losses in case of nonperformance. she would prefer a lower measure of damages coupled with price reduction. Risk Sharing Through Breach of Contract Remedies. The Case for Specific Performance. The efficient breach theory. Specific Performance. one should also consider the parties’ relative risk-aversion. full expectation damages provide the promisee with a kind of insurance—an effect both parties would find desirable if the promisee is risk-averse and the promisor risk-neutral. 83 Mich. sharing the costs of unintended breach by reducing damages below expectation damages.107 105. Another important factor is the extent of the promisee’s reliance on the contract. the exact measure of damages depends on the relative risk-aversion of the two parties. Rev. Chi. The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies.106 In setting remedy rules.105 Yet even economists who advocate specific performance in at least some circumstances share the view that there is nothing inherently immoral in breaching a contract as long as the breach is efficient. 1 (1989). and especially its implication that expectation damages are preferable to specific performance. 107. the promisee can increase the value of the promisor’s performance by making investments and foregoing alternative courses of action. if both parties are risk-averse and if purchasing commercial insurance is impracticable. is controversial. even a risk-averse promisee is unlikely to be willing to pay a premium for insuring against harms and injuries that would not affect her wealth. At least theoretically. 351 (1978). While such reliance increases the value of performance. See Anthony T. supra note 11. The Efficient Breach Fallacy. Legal Stud.contract law 295 the breaching party to internalize the costs her breach inflicts on the other party. Alan Schwartz.” see generally Cooter & Ulen. Whereas full expectation damages presumably generate optimal incentives for performance and breach by the promisor. 106. Legal Stud. 89 Yale L. 427 (1983). On the “Paradox of Compensation. may be mutually beneficial. L. if the remedy is too high to induce efficient breach.J. and morality If renegotiation is feasible at zero cost. Farber. 100 Yale L. Mitchell Polinsky & Steven Shavell. 66 Va. 61 S. economics. Rev.110 108. L. 869. 110. A. 395–405 (1990). this concern justifies a decrease in the measure of damages. This concern arguably justifies multiplying the measure of damages by 1/p. 401 (2001). the promisor would “bribe” the promisee to give up performance. Many breaches are unobservable or at least unverifiable. renegotiation entails redistribution of the contract surplus. Contract Remedies. Alan Schwartz. 30 J. 111 Harv. 629 (1988). Should Courts Deduct Nonlegal Sanctions from Damages?. and the Theory of Efficient Breach. the possibility of renegotiation must be taken into account when establishing efficient remedy rules. Arguably. The lower the probability of obtaining the remedy. L. long-term damage to one’s reputation.109 A countervailing concern has to do with nonlegal sanctions for breach. Rev. Daniel A. Cal. the aggrieved party will not attain her legal remedies if the various costs involved are prohibitively high—which is very often the case. Renegotiation. the promisee would “bribe” the promisor to perform. Reassessing the Economic Efficiency of Compensatory Damages for Breach of Contract. Richard Craswell.108 Another important factor is the probability that the aggrieved party will actually obtain the legal remedy. the totality of sanctions for breach— legal and nonlegal—should presumably equal the promisee’s expectation interest. If the remedy is too low to induce efficient performance. To induce optimal precautions and performance by the promisor (assuming no externalities). The Myth that Promisees Prefer Supracompensatory Remedies: An Analysis of Contracting for Damage Measures. 369. 1443 (1980). and social disapproval. Punitive Damages: An Economic Analysis.296 law. . While renegotiation costs are almost invariably positive (and even if they were zero. Even when a breach is observable and verifiable. including the risk of retaliation. 109. The more powerful the nonlegal sanctions are. Legal Stud. Robert Cooter & Ariel Porat. the greater the fear of overdeterrence generated by full expectation damages. efficient performance or breach will occur regardless of remedy rules. which in turn induces suboptimal reliance on the part of the promisee. 936–38 (1998). the lower the incentives for precautions and performance on the part of the promisor. which may lead to inefficient strategic behavior and may adversely affect the parties’ incentives regarding reliance). where p is the probability that the damages will actually be paid. Rev. 1610 (2008). L. Foundations of Economic Analysis of Law 360 (2004). 108 Colum. 111 (2000). Timing Problems in Contract Breach Decisions. L. and the Indifference Principle in Contract Law. 1135 (2003). 41 J. Efficient Contracting.contract law 297 This list of incentive and allocative effects is far from exhaustive. 87 (1989) (introducing the notion of penalty default rules and explaining the foreseeability rule as an incentive to efficiently share information at the contracting stage). Renegotiation. Triantis. 113. Cf. Scott. 975. 112. See generally Richard Craswell. Alexander J.113 incentivizing the promisee to mitigate her losses once a breach occurs. Cost of Completion or Diminution in Market Value: The Relevance of Subjective Value. Melvin A. See Richard Craswell. 2005). 379 (1983). or is merely probable. Rev. Against Fuller and Perdue. Steven Shavell. all of which aim at maximizing the “contractual pie” (assuming no externalities). the enduring insistence to classify opting out of a contractual obligation as a “breach. Timothy J. From the economic perspective. Not surprisingly. Instrumental Theories of Compensation: A Survey.112 difficulties in ascertaining the promisee’s subjective valuation of performance.J. Alan Schwartz & Robert E. 115. 99 Yale L. Polinsky. Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules. Eisenberg. 114. in Comparative Remedies for Breach of Contract 51. economic analysis equates remedies for breach of contract to other doctrines of contract law. .111 Additional concerns include the incentives necessary to induce the promisee to share information about her expected losses from breach before and after contracting. 111. 1021–24 (2005). Rev.114 and the courts’ difficulties in obtaining and verifying the complex information necessary to consider all of the above factors. Thus. Market Damages. one could find efficiency arguments supporting almost any other remedy rule. Rev. is puzzling. ‘Efficient Breach’ and Adjustment: The Choice of Remedy for Breach of Contract as a Choice of a Contract-Modification Theory.115 On a more abstract level. 99. Muris.. is imminent. the Theory of Efficient Breach. 93 Cal. 163 (1998). damages are not seen as a means to rectify some wrong but merely as an execution price of the option to unilaterally nullify a party’s contractual obligations (“exit rules”). Chi. Rev. 40 San Diego L. Barak Medina. 67 U. at 69. supra note 15. Actual and Virtual Specific Performance.” as well as the nonlegal sanctions that typically accompany it. L. while the desirability of expectation damages remains the point of departure for any economic analysis of remedy rules. Legal Stud. Ian Ayres & Robert Gertner. & Econ. L. and the Economic Waste Fallacy. 56–61 (Nili Cohen & Ewan McKendrick eds. 12 J. Following Kant. and even if no such reliance or benefit will ever occur. efforts. Anthony Kronman..117 This position may rest on the notion that the constraint against promise breaking is independent of the constraint against harming people. autonomously deciding what to think and do while respecting the autonomy of other people. Holding a person responsible for her past expression of will respects her as a continuing entity and promotes the mutual trust created by the promise. Aff. Fried. and Conventionalism.g. Rev. 493–96 (2008). 1491–514. Promises and Practices Revisited. even if the promisee has not yet relied on the promise and the promisor has not yet benefited in any way from making it. Harms. Rival theories deny both the existence of such an independent constraint and the contention that any promise making and breaking necessarily harms the promisee. Fried. 117 Phil. Promises are the key to enjoying the skills. and property of other people without adversely affecting their liberty. supra note 4. and Contractual Obligations Most deontologists hold that breaching a contract infringes a constraint. at 9–12. David Owens. 404 (1981).116 According to some deontological theories. 51 (2006). The promise creates confidence and trust. or the promisor has actually benefited from the promise. Intimate Relationships. Scanlon. the duty to keep a promise arises once a promise is made. Deontology: Promises. on the notion that any promise breaking ipso facto harms the autonomy or welfare of the promisee. A Simple Theory of Promising. According to a view famously endorsed by Charles Fried. see. Promising. at 1442–46. & Pub. Rev.M. 117. and morality 3. Niko Kolodny & R. The Liberal Theory of Contract. The philosophical literature on promising is abundant. 91 Yale L. the scope of the constraint is narrower: only if the promisee has actually changed her position (either by acting in a certain way or by foregoing alternative courses of action). Jay Wallace. alternatively. 481. it enables the promisee to legitimately rely on the promise.J. For a critique of Markovits’s theory. every person is an end in herself. or. Patrick S. from the notion that every person is an independent entity. 115 Phil. A New Champion for the Will Theory (Book Review). What We Owe to Each Other 295–327 (1998). see Seana Valentine Shiffrin. . at 7–17. Recent contributions include: T. supra note 7. economics. supra note 4. Markovits. and must not be used as mere means. this constraint stems from the liberal ideal. Atiyah.298 law. is the 116. For a critique of Fried’s theory. 119 (2003). in Essays on Contract 121 (1986). According to the latter theories. One should perform one’s contractual obligation even if more good could be attained by breaching it. 31 Phil. When a person makes a promise. e. then the argument becomes circular. supra note 4. so that every moral person must abide by it because of its content. Atiyah. at 12–14. Oxford Univ. See. Press. to abide by the rules of the practice. 122. Smith. see. 791–93 (1988). e.122 If the answer is that the practice itself is justified.. as it assumes that a person is bound by her promises. 275–76. rather than her expectation interest. 46 Yale L. 72 Minn. 120. 119. supra note 115. then the duty to keep promises does not stem from the existence of the practice but rather from the inherent moral justification for keeping promises.. This argument closely resembles the argument that lying both harms the deceived and violates a constitutive rule of language use. but plausibly also limit the compensatory duty arising from violating the constraint to protecting the promisee’s reliance or restitution interest. 121. A Treatise on Human Nature: Vol. a person who voluntarily participates in the practice and enjoys its benefits must not break her promise. John Rawls. See supra pp. Rev. Jr. if one has to follow the practice because of the benefit one derives from the promise (ordinarily through inducing a reciprocal promise) or from the harm inflicted on the promisee who relied on the 118. These theories not only narrow the incidence of the constraint. For a critique of both theses. Contract Theory 78–97 (2004).g.. Rev. L. 775. Once such socially beneficial and fair practice/convention exists. 52 (1936). 3 (1955). . Finally. Perdue. ed.J. Norton. F. John Rawls. the very possibility of making promises depends on the existence of such practice or convention. or promises. 2007) (1740). 1: Texts 331–37 (David Fate Norton & Mary J. see Stephen A.120 Making and breaking a promise would both harm the promisee who (given the practice) relied on the promise and adversely affect the practice itself. If the answer is that by the very act of promising. Two Concepts of Rules. David Hume. the most compelling being that the existence of a practice is either insufficient or unnecessary to justify the constraint against promise breaking. at 177–215 (arguing that promises are mere admissions of pre-existing obligations resting on reliance or restitution). For a critique of Fuller and Perdue’s thesis. Lon L. the promisor commits herself.H. Fuller & William R. Fried.g. Fried. A theory of Justice 301–08 (rev. Craswell. Even if the practice of promising is fair and socially beneficial.121 Practice theories of promising are subject to various critiques. Paradox Lost. eds. e. 64 Phil. Buckley. it is unclear why in a particular instance a promisor is bound by the practice.118 A common thread of several theories of the moral duty to keep one’s promise is their reliance on the existence of a social practice or a convention of promising. at 11–17. supra note 6. 1999).contract law 299 promisor morally obliged to keep her promise.119 Arguably.. supra note 4. The Reliance Interest in Contract Damages: 1. Contracts. While we propose to subject economic analysis to deontological constraints. 937 (1982). 126. at 295–317.124 Specifically. supra note 6. Promises and the Demands of Moral Agency. Shiffrin. in and of itself.. 124. Rev. supra note 117. at 56–57. In the same vein. nothing would hinge on the existence of the practice). the scope of the constraint would possibly be narrower than under the view that reliance and benefit are unnecessary for the existence of the constraint (and yet. Emmanuel Voyiakis. in The Theory of Contract Law: New Essays 118 (Peter Benson ed. Weinrib rejects any regard to consequences in formulating and applying contract law rules and private law rules in general. his theory is incompatible with our proposed analytical framework. see Craswell. 278–79. which speaks to legal enforcement institutions). The Unity of Contract Law. supra note 118. Weinrib. Joseph Raz. and morality promise. at 97–103.R. supra pp. For additional critiques of various aspects of different versions of practice/convention theories of promise. e. it must not be incompatible with the conditions necessary for the flourishing of moral agency). 916. Freeman & Ross Harrison eds. supra note 118. The Performance Interest in Contract Damages. Weinrib. which speaks to individuals. the law may adopt a more restrictive definition and deny that such “harms” warrant legal treatment.. Atiyah. supra note 13.Q. even those advocating an independent moral constraint against promise breaking may hold that harmless promise breaking should remain outside the law’s purview. In that last case. 628 (1995). See. at 121–28. Compare the analysis of harmless deception. and contract law.127 123. supra note 115. supra note 23.300 law. Promises in Morality and Law. in 10 Current Legal Issues: Law and Philosophy 288 (Michael D. Scanlon. . 2007) (advocating a division of labor between the morality of promising. supra note 122. some theories build on notions of corrective justice126 and/or on a conception of contract as a transfer of rights or entitlements. Smith. Daniel Friedmann. For a critical analysis of these theories. warrant legal enforcement of a promise.. then once again these two factors would be sufficient to yield an obligation to keep promises—even absent the practice. For a general critique of corrective justice theories of contract remedy rules. 95 Harv.g. supra note 118. additional considerations impinge on the scope and outcomes of legally enforceable promises. Alongside the theories focusing on the morality of promising. even if morality views disrespect for the promisee’s autonomy or the mere disappointment experienced by the promisee as harms.123 Whether there is an independent moral constraint against promise breaking per se or against harming other people by making and breaking promises.A. Peter Benson. For this reason. 127. supra note 116.125 This is a brief overview of some aspects of some deontological theories of promising and contractual liability. Infringement of the constraint against promise breaking does not. see Smith. See Fuller & Perdue. supra note 13. see Buckley. while contract law need not enforce moral norms. L. Shiffrin. at 709–19 (arguing that. 111 L. 2001). 125. at 112–14. economics. at 69–72. at price P. . up to 100 days. however. There are. Deontological Features of Contract Remedy Rules As indicated earlier and as will be further detailed. Bonuses Assume that a contractor undertakes to complete a project by a certain date X. reflecting instead the notion that contract breach is an infringement of a deontological constraint. that there is a difficulty or a problem that has to be corrected. The contract provides that for every day of delayed completion. many rules and doctrines of contractual liability and remedies for breach are compatible with both standard economic analysis and deontological morality. there is a liquidated damages clause of $1000 for every day of delay but also a clause entitling the contractor to a $1000 bonus for every day of earlier completion. and their positions regarding the appropriate remedies for breach of contract. there is a correlation between the basic characteristics of the various deontological theories of promise and contract (namely. and similar conclusions from dissimilar theories. and the term “remedy” implies that something went wrong. Now assume a similar contract.000. where the agreed date of completion is X+100 and the price is P–$100. The same is true of operational rules of contract law. Two simple examples will be used to substantiate this claim: liquidated damages versus bonuses and restitution exceeding expectation. and whether they differentiate between morality and law).contract law 301 As we shall see in greater detail. Yet this correlation is not particularly robust. The very use of the term “breach” connotes a violation of a duty (rather than a legitimate choice). The monetary consequences of completing the project at different dates seem to be identical under the two contracts and so are presumably the incentives created by the contracts. the next subsection argues that existing rules of contract remedies indeed reflect deontological morality. as different conclusions about the appropriate remedies may be drawn from a single theory. the landowner will be entitled to $1000 in liquidated damages. whether they recognize an independent constraint against promise breaking. 4. Before discussing these competing conclusions and their implications for the feasibility of a deontologically constrained economic analysis of remedy rules. Liquidated Damages vs. In the latter contract. how they define harm. significant aspects of liability and remedy rules that are not reconcilable with the economic conception of breach. supra note 96. including their incentive effects. Treitel. completion on date X+50 does not constitute a breach but rather an expedited performance.128 Even if the contract purports to exclude such alternative or additional remedies. and the capacity of courts to accurately apply the pertinent norms. Therefore. 214–19. 1152 par. 128. and morality This is not. at 212–13. Assume. Treitel. . at 216–17. at 453–56. Moreover. See. however. at 219–33. if delay is due to unexpected and unavoidable circumstances which make completion on time impossible or impracticable. Principles of European Contract Law. French Civil Code. Under the first contract. See also UCC § 2-719.129 At the same time. that the project was completed on date X+50. Art. the contractor may not have to pay any damages at all.130 Finally. e. supra note 47. 131. and it is certainly not the way the law treats them. Comment 3 (as amended in 2003) (“A liquidated damages term that provided for damages that are unreasonably small is likewise unenforceable”). the cognitive biases possibly affecting liquidated damages clauses. the contractor has breached her obligation to complete the contract by date X. it is very unlikely that she could challenge the validity of the bonus clause on the ground that it is excessive. economics. this exclusion will be scrutinized. Each aspect of these very different legal effects of the two contractual arrangements may by justified—or criticized—on various grounds. or reduce the liquidated damages to an acceptable level in others. the way contracting parties ordinarily perceive the two arrangements. the landowner could not avoid paying the bonus by claiming that the earlier completion was made possible thanks to unexpectedly favorable circumstances for the contractor. the landowner is not entitled to any remedy for breach of contract.g. for example. supra note 96. under the second contract.131 In contrast.. the court may invalidate the exclusionary clause on the basis of legal doctrines such as unconscionability or pursuant to specific statutory authorization. it will void the clause in some legal systems. 129. UCC § 2-718. or that the contractor could challenge the bonus for being too low. if the expected and actual loss due to the delay is significantly larger than the stipulated damages. UCC § 2-615. if the court views the liquidated damages as disproportionately high. UCC § 2-719. Treitel. Finally. 2.302 law. 130. supra note 96. The liquidated damages clause does not necessarily deprive the landowner of alternative or additional remedies for this breach. because the delay is not considered a breach under such circumstances. For this reason.133 The parties allocated to the contractor the risk that the costs and hence market price will increase. however. Andrew Kull. In this hypothetical. as an infringement of a deontological constraint). See also infra note 137. Before any work is done. the undeniable fact that the legal treatment of the two arrangements around the world is radically different.contract law 303 What is more important for our purpose is.000. 133. At least under ordinary circumstances. higher price. undercompensatory liquidated damages may be viewed as an unconscionable exclusion of liability. While under the first contract completion at any date after X is treated as a breach (that is. there is no reason to 132. Restitution as a Remedy for Breach of Contract.132 Restitution Exceeding Expectation Suppose that a contractor is hired to do some work for a sum of $10. 1465 (1994). paid in advance. nothing of the sort may affect the entitlement of the contractor to the bonuses for early completion. and the owner rightfully terminates the contract and sues for restitution. thereby putting her in the position she would have been in had the contract been performed. Rev. under the first contract—but not under the second—the landowner is entitled to additional remedies. Suppose further that the contractor proves that the current market value of the same work has dropped to $8000. Cal. the owner would have rightfully been awarded the current. while the owner took upon herself the risk that costs and market price will decrease. under the second contract completion at any date prior to X+100 is treated as a legitimate realization of an option. Had market price increased. . L. Restitution not capped by expectation puts the owner in a better position than she would have been in had the contract been performed. 67 S. Finally. standard economic analysis holds that the owner should only be entitled to a monetary relief of $8000 (assuming she has suffered no ancillary or consequential damage). the contractor repudiates. For the same reason. whereas no complaint that the bonuses are too low (compared to the landowner’s additional gains from early completion) is likely to be accepted. and perhaps the owner has even hired another contractor to do the work for this lower sum. whereas supervening circumstances may exempt the contractor from liability and hence from the payment of the liquidated damages. 304 law. See Barry E. supra note 48. having to choose between over-reliance on the contract by the promisee due to the availability of full expectation damages. it is widely accepted that in such cases.cfm?abstract_id=1352358). These examples demonstrate that existing contract law is more easily interpreted as reflective of a deontological conception of contractual liability than an economic or a consequentialist one. Rev. Assume. available at http://papers. L. 484 (2005). Efficient Breach Theory Through the Looking Glass. These doctrines (and the related doctrine of impracticability) deal with unexpected and unavoidable supervening circumstances that make performance much more burdensome than initially expected. and between under-compliance by the promisor that would have resulted from denial of damages or decoupling damages from the promisee’s losses. Rev. For instance. Yuval Procaccia. Adler. 137. Contractual Accidents (unpublished manuscript.ssrn. Finally. it seems that all attempts to rest these doctrines on efficiency grounds have largely failed. 83 NYU L. See Omri Ben-Shahar & Robert A. 135. 136. supra note 11. Alternative interpretations. nor perceives contractual obligations as options to perform or pay expectation damages. that the promisor’s . 7 Am. no legal system awards negative damages. Additional examples are readily available. demonstrate that the law of contractual liability recognizes not only deontological constraints but also deontological options. that is. the option to choose ex post between different measures of relief in cases involving ex ante uncertainty places extra cost on the breacher and may thus result in incentives distortion. for example. It is questionable whether the foreseeability requirement is suited to attain this goal. com/sol3/papers. The (Legal) Value of Chance: Distorted Measures of Recovery in Private Law. contracts create mutual trust and generate a moral duty to perform. at 848–49. See Posner. More generally. Mikos. Rather. letting the breacher recover the other party’s gains from the breach. Accordingly. Likewise. and in any case it does not apply to specific performance. This is so. despite the fact that such damages are at least sometimes necessary to induce an efficient breach.137 As the next section 134. and morality assume that promisees would be willing to pay for this supracompensatory remedy. the contractor cannot legitimately turn her back on her contractual obligations and at the same time rely on the contract to limit the owner’s remedy to her expectation interest. which is likely to reduce the contract surplus. when available. the aggrieved party is entitled to full restitution. 1679 (2008). such as impossibility and frustration of purpose. no legal system has seriously considered the suggestion to reduce legal remedies for breach so as to avoid over-deterrence of breach due to the cumulative effect of legal and nonlegal sanctions for breach (see supra note 110 and accompanying text). Econ. such as the argument that the requirement of foreseeability in contract damages takes this consideration into account (Cooter & Ulen.135 This rule suggests that contract law neither views contracts as mere means to efficiently allocating risks and prospects. To date. at 264–66) are less compelling.134 Despite this sound economic reasoning. all legal systems opt for the former.136 Other doctrines. See supra note 100 and accompanying text. economics. by making a contract and then breaking it. 88 Mich. this is hardly the case. we nevertheless have doubts regarding the feasibility of deontologically constrained economic analysis of contract remedies. supra note 118. Challenges Facing Constrained Economic Analysis of Remedy Rules The most fundamental difference between consequentialist (including economic) and deontological conceptions of contract law is that only the latter recognize a constraint against contract breaching. 138. at 58. the agreed price is 60. . These differences are much greater than the gaps that separate some deontological theories of contract remedies and standard economic analysis. Rev. Various understandings of the meaning and scope of the constraint against contract breaching and various theories regarding the appropriate relationships between morality and law yield radically different conclusions about the appropriate goals of contract remedies. and both parties are risk-neutral. Default Rules. the cost of performance has unexpectedly tripled to 150. Conversely.contract law 305 explains. respect for individual autonomy requires that people be allowed to commit themselves to legally binding promises. 489. One could have assumed that this fundamental disagreement would yield different implications for remedies for breach of contract. L. we should address the claim that at least autonomy-based theories have no bearing whatsoever on the appropriate remedies. Now assume that due to supervening circumstances. standard economic analysis basically holds that contracts should be performed as long as performance is efficient and breached whenever breach is efficient. the expected value of performance to the promisee is 700. yet it gives no reason to prefer any remedy over any other. In this case. Contract Law. however. As indicated. and yet under appropriate circumstances practically all legal systems exempt the promisor from her liability. This constraint is either a manifestation of the constraint against promise breaking. Before examining the implications of different deontological theories for contract remedies and hence for the integration of constraints into the economic analysis of remedy rules. Richard Craswell. 517–20 (1989). contract law seems to reflect a threshold option.138 expected cost of performance is 50. 5. Fuller & Perdue. Performance is clearly more efficient than breach under these circumstances. According to this argument. and the Philosophy of Promising. or an application of the general constraint against actively/intentionally harming other people— in this case. for example. often advocate remedies aimed at protecting the aggrieved party’s expectation interest.” then such remedies—rather than remedies protecting the reliance interest. supra note 7. and morality This claim proves too much. If a breach of contract is regarded as intrinsically.g. supra note 4. one should prefer remedies providing the promisor with a stronger incentive to keep her promise. at least as its starting point. if the essence of promises and contracts lies in establishing relationships of recognition and respect. favors remedies protecting the aggrieved party’s expectation interest. and that the law should reflect this constraint.140 The same is true of deontologists who perceive contracts as a kind of community or collaboration. one holds that breaking a promise is not wrong in itself but only wrong to the extent that it harms the promisee. Markovits. . given that specific performance entails greater curtailment of the promisor’s liberty. and if only remedies protecting the expectation interest “track the contracting parties’ transformation from strangers to collaborators. Furthermore. In the same spirit. Deontologists who hold that contracts are primarily a set of promises. for example. e. all else being equal. 140. While autonomy-based theories do not necessarily entail expectation damages as the standard remedy for breach. morally wrong (and if this wrongness should be reflected in the law). If. we can now examine how these implications impact the feasibility and fruitfulness of integrating deontological constraints with economic analysis of this sphere. Fried. that there is an independent moral constraint against promise breaking. and that conclude that only remedies protecting the expectation interest reflect the parties’ forward-looking commitment to affirmatively treat each other as ends in themselves.139 Given these correlations between deontological theories of contract law and the appropriate remedies for breach. do not meet this criterion. at 1503–14.141 These theories thus converge with standard economic analysis which. One should opt for remedies that more clearly express the inherent moral virtue of keeping one’s promise and condemnation for its breach. a kind of community. Markovits. See. they are not indifferent to remedies. whenever expectation damages adequately protect 139. Cf. 141. then the goal of remedies should be to redress this harm. at 65–70. at 1503–14. Weinrib. then.306 law. supra note 7. which are available also to strangers—are warranted. economics. Neither are other deontological theories unconcerned with contract remedies.. Reliance damages. supra note 13. at 17–21. From Promise to Contract: Towards a Liberal Theory of Contract 95–109 (2003). Rev. Rev. the limited or no recovery of legal costs. then one must reject this brand of deontological theories. See generally Treitel. L. 249–53. the mitigation of loss rule. 1991 Wis. 33 UCLA L. These theories contend that contract breach is not a legitimate option open to the promisor but rather an infringement of a moral constraint against harming other people or against illegitimately enriching oneself at their expense. the reluctance to award emotional distress damages. supra note 96. If people are rational maximizers of their utility.142 This argument.contract law 307 the promisee’s expectation interest. there is at least a prima facie deontological reason to prefer expectation damages over specific performance. Rather than reinforcing the immorality of contract breaching. incorporating a deontological constraint based on these theories may actually facilitate more breaches. Dori Kimel. Yet they do not support harsher remedies than those regularly advocated by economists but lesser ones. . The typical outcome of under-compensation is due to the difficulties of establishing the loss with sufficient certainty. Sebert. is shared by standard economic analysis and by the deontological theories under consideration. This (perhaps surprising) conclusion is even stronger when considering deontological theories which hold that contract remedies should only aim to protect the promisee’s reliance interest. Punitive and Nonpecuniary Damages in Actions Based upon Contract: Toward Achieving the Objective of Full Compensation. they should be preferred over specific performance. contracts are made to promote the parties’ utility. Stewart Macaulay. standard economic analysis adequately analyzes the incentive effects of different remedy rules. but for its disregard for the immorality of contract breach. and expectation—rather than reliance—damages incentivize the parties to act so as to maximize their utility. if one accepts that. at 143–207. Eisenberg. John A. The Reliance Interest and the World Outside the Law Schools’ Doors. Jr. at 989–97. too. 247. then the reliance interest must not be the standard measure for contract remedies. supra note 114. Admittedly. too. the foreseeability requirement.143 However. 1566–71 (1986). 143. there are many reasons to doubt that current doctrines of contract damages successfully put the aggrieved party in the same position she would have occupied but for the breach. accords with the common economic view that when expectation damages adequately protect the promisee’s expectation interest. Moreover. 142. 1565. Incorporating a constraint reflecting this brand of deontological theories into economic analysis of remedy rules is therefore unlikely to change the analysis.. and so forth. this concern. 145 These would include specific performance. supra note 117. there are (as indicated above) significant efficiency arguments in favor of supracompensatory remedies. doing away 144.308 law.144 Arguably. the denial of punitive damages for intentional breaches. Plausibly. Shiffrin.”146 In fact. For a critique of these views. see Atiyah. to reflect the immorality of contract breaches. As regards the first type of arguments. fully enforce liquidated damages clauses even when they seem to be unreasonably excessive. But this argument moves too quickly. there are powerful arguments—some of which are distinctively deontological and others that most deontologists would not wish to ignore—against such harsh remedies. repealing or minimizing the mitigation of losses rule would contradict the special moral obligation a contracting party owes her counterpart. For the claim that a promise-based theory of contract should embrace specific performance as the standard remedy for breach. supra note 23. one should avoid losses that can be avoided “without undue risk. . more generously award damages for emotional harm. remedies that considerably curtail the promisor’s liberty may infringe a constraint against harming the promisor. Restatement (Second) of Contracts § 350(1). the limitation of damages for consequential losses to those losses that have been reasonably foreseeable at the time of contracting. See supra note 142 and accompanying text. burden or humiliation. or restitution interests even when these interests surpass her expectation interest. at 722–27. cooperation. and good faith expected between contracting parties. and allow for punitive damages for culpable breaches. a fruitful analysis of the desirability of such supracompensatory remedies may be done through the integration of deontological constraints with economic analysis. reliance. Shiffrin argues that the following features of American contract law fail to create the necessary conditions for the flourishing of moral agency: the primacy of damages rather than specific performance as remedy for breach. 145. For one thing. even if the latter has breached her obligations. supra note 118. or monetary remedies that are so high as to leave the promisor with no practical alternative but to perform her obligations. the refusal to punish deliberate breach is a genuine puzzle”). Such remedy rules may strive to protect the aggrieved party’s disgorgement. 146. See also Smith. They may regard specific performance as a standard remedy. In the same vein. at 124. economics. at 418–20 (“[F]rom the traditional rights-based view of contract law. supra note 22. minimize the promisee’s burden to mitigate her losses. For another. see Kraus. and the unenforceability of punitive damages clauses. and morality We are left with those deontological theories which maintain that remedies for breach of contract should be more stringent than expectation damages. as part of the mutual trust. the mitigation of damages rule. supracompensatory remedies are likely to distort the incentives for efficient behavior by both parties. 80–81 (2005). More generally. Hillman. even a deontologist who insists that there is an independent constraint against promise breaking (or that every promise 147. 47 Stan. in the harm it inflicts on the promisee. . for it requires fact finding and normative deliberations beyond those generally required for awarding compensatory damages for pecuniary losses. First. For all of these reasons.149 While moderate deontology may certainly endorse rules that constrain the attainment of best outcomes. Frameworks of Cooperation: Competing. Schwartz. 148. Roy Kreitner. For instance. On cognitive biases and legal paternalism. 59. 6 Theoretical Inq. Awarding punitive damages may also encumber the judicial process. 717 (2000). L. Rev. measures that may deter breach yet concomitantly reduce the expected joint surplus of the contract. thus neutralizing their effect. supra note 109. in part. 313–47. 149. it seems to disregard the prevailing cognitive biases and other problems due to which contracting parties often agree to unreasonably and inefficiently high liquidated damages. 225–36 (1995). L. 211. Melvin Eisenberg. setting inefficient. and Joined Interests in Contract and Its Surroundings. thus decreasing the expected joint surplus of the contract and harming both the promisor and the promisee. 85 Cornell L. see infra pp. to the extent that the immorality of breach lies. economic analysis teaches us that in the absence of costless renegotiation. may seem counterproductive. But see Robert A. the expected gain of the promisee. at 372–83. Second. Conflicting. specific performance is often much more costly to administer than a monetary remedy. Cf.contract law 309 with the mitigation of losses rule may be injurious to the conception of contract as a cooperative relationship in quite the same way as is the efficient breach theory. A multitude of more pragmatic reasons also militate against harsher remedies for breach of contract. The Limits of Cognition and the Limits of Contract.147 With respect to the suggestion to indiscriminately enforce liquidated damages clauses even when they seem to set unreasonably large damages.148 Comparable arguments may militate against other proposals to impose stringent remedies for breach of contract. supracompensatory remedy rules is arguably undesirable for two related reasons. and hence. Rev. one may expect that parties acting as rational maximizers would try to contract around such remedies. to the extent that supracompensatory remedies decrease the joint surplus of the contract. The Limits of Behavioral Decision Theory in Legal Analysis: The Case of Liquidated Damages. 150 there are arguments for less-than-expectation damages. 117–22). see generally supra pp. Schwartz. Recognizing a deontological constraint against promise breaking and contract breaching may however have a more limited. such as the typical underenforcement of remedies for breach and the characteristic difficulty of ascertaining high subjective valuations. 292 above. To date. current economic analysis is complex and rather indeterminate with regard to remedy rules. if one is forced to choose a single remedy that is most likely to be efficient. Conclusion This chapter sought to establish that certain deontological constraints apply to contracting behavior and that incorporating deontological constraints with economic analysis of contract law may be fruitful. more forcefully express the moral notion that promises and contracts should be performed. With respect to the 150. As noted in p. it may well be expectation damages. and risk sharing. . all modern systems largely converge in terms of the remedies actually sought for by aggrieved parties and awarded by courts. 151. The former systems. Indeed. The above discussion largely assumed that economic analysis supports expectation damages as the standard remedy for breach of contract. once our understanding of the incentive effects of different remedy rules will be enhanced (possibly through empirical and experimental studies). supra note 109.151 Hopefully. as demonstrated. and arguments for blanket enforcement of liquidated damages rules. while some legal systems consider enforced performance as the primary remedy for breach of contract and others view damages as the standard remedy. and morality breaking ipso facto harms the promisee) and who believes that this constraint should equally apply in the legal sphere must be very cautious before advocating supracompensatory or punitive remedies for breach of contract. expressive role (on the expressive role of law. such integration would become more feasible. the existence of nonlegal sanctions. Deontologically constrained economic analysis of contract remedies may also be too complicated for reasons having to do with economic analysis itself. Integrating deontological constraints with the economic analysis of remedy rules may thus be too challenging a task at this time.310 law. economics. However. including the concern of overreliance by the promisee. the bottom line of economic analysis of remedy rules is that no bottom line exists. and are therefore more compatible with deontological morality. • F. however. Alongside economic arguments in favor of damages exceeding expectation. we exposed the limitations of standard economic analysis of deception and precontractual disclosure duties. deontologically constrained CBA may facilitate better understanding of such legal doctrines as duress. reflecting instead the notion that there is a moral constraint against contract breaching. unenforceability on grounds of illegality and public policy. and the duty to negotiate and to perform contracts in good faith. we demonstrated that current legal norms are incompatible with a perception of breach as a legitimate option for the promisor. we conceded that due to the inconclusiveness of both deontological and economic analyses of contract remedies and the multiplicity of pertinent policy considerations. submitting that the integration of the constraint with economic analysis facilitates a structured consideration of germane moral factors that standard economic analysis fails to consider. We analyzed the scope and main features of such a constraint.contract law 311 formation stage. the normative analysis of disclosure duties and of such doctrines as impossibility and impracticability may be advanced by incorporating threshold options into their economic analysis. The proposed analytical framework is likely to contribute to the analysis of other aspects of contract law. . At the same time. a deontologically constrained economic analysis of remedies for breach of contract may be too challenging at this developmental phase of contract theory. In addition. As regards the performance and breach stage. Inter alia. We explained how recognizing a constraint against precontractual deception may contribute to a normative and interpretative analysis of the pertinent issues. This page intentionally left blank . one could have assumed that deontological morality would reject paternalism. Paternalism: Some Second Thoughts. assuming as a matter of course that efficiency and paternalism are irreconcilable.1 Paternalistic interventions prevail in both private and public life. consequentialism values freedom only as a component of well-being. Until recently. 659 (2004). 105–07 (Rolf Sartorius ed.” see Gerald Dworkin. so it seems. In fact. 56 The Monist 64 (1972) [hereinafter Dworkin. The most powerful objection to paternalism is that it infringes upon the autonomy and freedom of people. whereas consequentialist theories would embrace it. Hence. most welfare economists—strongly object to it. John Kultgen. John Kleinig. This conflict between welfare and selfdetermination echoes the fundamental conflict between consequentialism and deontology. yet their legitimacy and desirability are hotly debated. The central justification for paternalism is welfarist: the paternalistic intervention aims at promoting the well-being of the person whose freedom is curtailed. Autonomy and Intervention: Paternalism in the Caring Life 60–73 (1995). General paternalism is an intervention in a person’s freedom aimed at furthering her own good. Counting the Dragon’s Teeth and Claws: The Definition of Hard Paternalism. in Paternalism 105. U. Explicit and detailed analyses of paternalism from an economic point of view have been conducted only in 1. 1983) [hereinafter Sartorius. Donald VanDeVeer. Thaddeus Mason Pope. Paternalism]. St. Paternalism. economists (including legal economists) have mostly eschewed the issue of paternalism. Rev. and many consequentialists— including. Paternalism]. Gerald Dworkin. L. 20 Ga. Paternalism 3–17 (1984). For additional meanings and definitions of the term “paternalism. numerous attempts have been made to justify paternalism according to deontological theories. Paternalistic Intervention: The Moral Bounds of Benevolence 16–40 (1986). 313 .• ten Legal Paternalism • A.. While deontology prioritizes liberty and autonomy over promotion of the good. Martin Feldstein. We will propose a simple model for assessing the efficiency of any paternalistic legal rule.) 1 (1991). The Economist as Therapist: Methodological Ramification of ‘Light’ Paternalism.2 In recent years. in The Foundations of Positive and Normative Economics: A Handbook 210 (Andrew Caplin & Andrew Schotter eds. the powerful empirical assault on the standard assumption of economic rationality have sparked a lively discussion of paternalism among economists. 229 (1998). Rizzo. 73 U.314 law. Econ. George Loewenstein & Emily Haisley. Glaeser.U. 303 (1985). 307 (1982). 191–92 (2006). Rev. Papers 542 (1993) [hereinafter Burrows. Contrary to the prevailing view among economists. J. Econ. Paternalist Slopes. 90 Minn. The goal of this chapter is twofold. 183. Rev. and the Law.e. L. a model that strives to avoid ideological biases which sometimes distort the economic discussion of this issue. & Liberty 411 (2007). 15 Int’l Rev. 2008). The second goal of this chapter is to point out the incompleteness of such standard CBA of paternalism and to demonstrate how it can be improved by incorporating deontological constraints into the analysis. discussed in chapter 1. L. Some earlier studies. 3. but most of them did not explicitly address the issue. economics. including economic efficiency. arrived at conclusions that are tantamount to legitimizing paternalism. (Papers & Proc.) 186 (2003). 73 U. Rev. and morality the past 15 years or so. Chi. to establish that paternalism is necessarily and invariably inefficient) follow some of the attempts to defend consequentialism against the deontological critique. Akerlof. which examined the implications of empirically studied phenomena of bounded rationality. . e. 84 Va. Auto Safety Regulation: An Analysis of Market Failure. Eyal Zamir. L. Econ. we will demonstrate that principled antipaternalism is incompatible with consequentialism. Edward L. 1620 (2006). 2 N. L. 489 (1995).3 Yet the issue is anything but settled. Analyzing Legal Paternalism. Studying Optimal Paternalism. Law & Econ. 72 Am. 27 (1981). Procrastination and Obedience.. Arnould & Henry Grabowski. 100 Q. SelfRegulation. The Efficiency of Paternalism.J. Akerlof & William T. Rev.g. and are as problematic.g. See. First. 81 Am.. 12 Bell J. Government Regulation of Irrationality: Moral and Cognitive Hazards.. (Papers & Proc. Richard J. The Optimal Level of Social Security Benefits. Jonathan Klick & Gregory Mitchell. 133 (2006). The Economic Consequences of Cognitive Dissonance. without relying on dubious consequentialist arguments. 93(2) Am. 2. e. “We Can Do This the Easy Way or the Hard Way”: Negative Emotions. Econ. Economists’ attempts to counter this conclusion (i. Illustrated by a Model of Sin Taxes. The incorporation will follow the general discussion in chapter 4. Paternalism and Psychology.Y. Rev. Econ. Patronizing Paternalism]. See. Dickens. George Loewenstein & Ted O’Donoghue. 45 Oxford Econ. Ted O’Donoghue & Matthew Rabin. George A. Rev. L.. Paul Burrows. Paul Burrows. Chi. The integration of deontological constraints into the economic analysis will provide a firmer basis for opposing or restricting otherwise efficient paternalistic interventions. George A. Patronizing Paternalism. Douglas Glen Whitman & Mario J. Rev. it critically analyzes the consequentialist—and particularly the economic—position regarding paternalism. Paternalism and the Legal Profession. Anthony T. 1991). see Allen E. encompass such cases as well. e. an intervention in a choice based on partial information or induced by deceit is not paternalistic because a voluntary choice presupposes full information and free exercise of discretion. On Liberty (1859). Rev. Joel Feinberg.g. 763. 319–27 (1990). e.g.legal paternalism 315 This chapter proceeds as follows: section B surveys the different forms and degrees of paternalistic interventions and demonstrates the prevalence of paternalism in Western legal systems. perspective. On different meanings of “rationality” and their implications for the justification of paternalism. 786–97 (1983). Distributive and Paternalist Motives in Contract and Tort Law. Deciding for Others: The Ethics of Surrogate Decision Making 18–20 (1989). Legal Paternalism. See. A broader definition of paternalism would. Phil. a distinction is commonly drawn between paternalism toward minors and the mentally disabled on the one hand and paternalism toward competent adults on the other hand.4 Another factor is the extent to which the frustrated choice is voluntary and informed.. Finally. demonstrates that paternalism is sometimes efficient. Paternalism and Respect for Autonomy. Brock. thus laying the ground for the ensuing discussion. 642–46 (1982). 105 (1971). section D argues that a fruitful discussion of paternalism must take into account the intrinsic value of autonomy and freedom. • B. it is useful to describe the variety of paternalistic interventions in private and public life. Paternalism and the Law of Contracts.5 Paternalistic interventions also vary with regard to the rationality of the frustrated choice6 4. L. Arguably. There are numerous forms and degrees of paternalistic interventions. reprinted in On Liberty and Other Essays 14 (Oxford Univ. Press. For the argument that competence is necessarily decision-relative. 563. David Luban. Kronman. 1 Can. See. 41 Maryland L.. John Stuart Mill. 461–86. Rev. 92 Yale L. Section C discusses paternalism from a consequentialist. Duncan Kennedy. . discusses deontological perspectives on paternalism which recognize such intrinsic value. 100 Ethics 318. 1981 Wis. J. It then provides a simple model for the assessment of the efficiency of legal rules. with Special Reference to Compulsory Terms and Unequal Bargaining Power. A central variable is the mental condition and the intellectual capabilities of the person whose freedom is curtailed. and addresses objections to this conclusion. however. 5. Accordingly. 6.J. 454. and integrates deontological constraints into the economic analysis of paternalism. Paternalism: Classifications and Prevalence To grasp the vast practical significance of legal paternalism. Buchanan & Dan W. see Danny Scoccia. and particularly economic. Mill. A Broader Liberty: J. e.11 and the extent to which the 7. Kronman. supra note 1. supra note 5. supra note 4. at 161–68. M.cfm?abstract_id=1348235) (comparing governmental and corporate paternalism). Paternalism. at 624–26. infra note 14 and accompanying text. Todd Henderson. Paternalism. 216. and morality and the kind and magnitude of the injury or loss that may ensue in the absence of intervention. Providing assistance in-kind rather than in money is a less severe form of intervention. paternalistic interventions differ from one another regarding the degree of closeness between the paternalist and the other person. See Feinberg. See Kennedy. at 66–67. Setting default rules that people are (more or less) free to opt out or deviate from. 10. Henderson. Cf. see also Mill. Gostin. 218 (2009). Joel Feinberg. 471–72 (1980). Thus. One may also distinguish between actions people do in order to harm themselves and actions involving varying degrees of risk taking. Lawrence O.. L. Health 214. is a very mild form of paternalism.9 One may further classify paternalistic interventions according to whether the intervention prevents an action or requires one.g. available at http://papers. Even people who object to any and all governmental paternalism more willingly accept instances of paternalism among family members.com/sol3/papers. as there is no paternalism without intervention in a person’s freedom. 8. Richard J. supra note 4. and the Public’s Health. Practical Reasoning in Bioethics 124. See. James F. 16–17.ssrn.10 the existence or absence of other bases for intervention. as are “sin taxes” on such products as cigarettes and alcohol. . at 638–41. On this parameter. Childress. at 111–13. (forthcoming. 90 Ethics 470.316 law. 646–49. ranging from mere refusal to assist a person in carrying out her plans. supra note 4. 9. the total elimination of one’s physical or legal capacity to do something is considered an extreme intervention. Kultgen. The Nanny Corporation and the Market for Paternalism. intervention. at 8. Additionally. economics. 11.8 The intrusiveness of paternalistic interventions. 123 Pub. Kennedy. Feinberg. On the opposite end of the scale. supra note 4. the use of rational arguments to persuade a person not to do something is not considered paternalistic by most accounts. if not extreme. Mill versus Paternalism. supra note 1. Dworkin. supra note 10. 125 (1997) (distinguishing between active and passive paternalism). Pope. supra note 8. supra note 1. The Moral Limits of the Criminal Law: Harm to Self 8 (1986). The probability of such injury or loss7 and the expected probability of their avoidance by virtue of the intervention should also be considered. to physical restriction of her movements. such as protection of third persons and redistribution of power and wealth. Chi. Gostin & Kieran G. at 109–10.S. Arneson. U. at 688–90. Rev. Criminal sanctions for disobeying the paternalist’s instructions constitute a severe. is similarly crucial. supra note 10. id. supra note 1. the mentally disabled.g. 1755–68. Rev. Moreover. . Loewenstein & O’Donoghue. extensive debates regarding the legitimacy and desirability of various paternalistic measures in both the private and public spheres. 1159 (2003). inalienability of certain basic liberties. Rev. Richard H. as is the compelled use of various safety measures while driving or working in high-risk environments. and the limited enforceability of some contract terms. Cass R.” 151 U. 519. 529–45 (1988). or contract around. or contract around. Libertarian Paternalism Is Not an Oxymoron. supra note 1. 70 U. Wealth. see Zamir.legal paternalism 317 paternalistic intervention restricts the freedom of people other than the person protected. Nudge: Improving Decisions About Health. 13. compulsory social security and pension arrangements. 83 Cornell L.. Pope. them) is blurred for a variety of reasons. liberal democracies. L.g. VanDeVeer. at 1738–53. See. Paternalism is also the primary grounds for norms prohibiting the use of some drugs and gambling and for rules forbidding swimming in the absence of a lifeguard. Thaler. at 686–88. certain applications of the undue influence and unconscionability doctrines. 608 (1998). Notwithstanding the prevailing hostility to state paternalism in the public discourse in Western. L. L. 1785–88 (1997). Paternalism. Pa. and Happiness (2008). L. Regulation for Conservatives: Behavioral Economics and the Case for “Asymmetric Paternalism. Sunstein & Richard H. since the distinction between default rules (applying unless people effectively depart from. 97 Colum. e. at 191–92.14 12.. See also Feinberg. supra note 3. 14. Courts. 74 Va.13 all Western legal systems include numerous paternalistic norms. at 9–10. Shapiro. 25–26. and intoxicated people are obvious examples. and “sin taxes” on tobacco and other unhealthy products. Limitations on the legal capacity of minors. See. e. paternalism underlies coolingoff periods in door-to-door sales and other types of transactions. Thaler & Cass R. See Dworkin. 1710. Rev. even default rules may sometimes direct people’s choices and may therefore be used as a (very mild) form of legal paternalism. at 67–68. Eyal Zamir. Russell Korobkin.12 These parameters and distinctions reflect the ongoing. On objective and subjective obstacles to contracting around seemingly default rules. compulsory elementary education. Additional cases include the exclusion of victim consent as a defense to certain criminal offenses. Camerer et al. Legislatures. 1211 (2003). and Paternalism. Sunstein. at 16–20. Rev. All of these distinctions are relevant to legal paternalism. The Inverted Hierarchy of Contract Interpretation and Supplementation. supra note 1. The Status Quo Bias and Contract Default Rules. such as forfeiture clauses and liquidated damages. Chi.. them) and mandatory rules (applying notwithstanding attempts to depart from. Colin F. which make them to some extent mandatory. Rev. In the market domain. David L. Second. some degree of freedom is also a necessary means to achieve and safeguard other components of one’s well-being. Tom Law Beauchamp & James F. Normative Economic Analysis of Paternalism This section argues that paternalism is compatible with economic efficiency (subsection 1) and addresses possible objections to this claim (subsection 2). 52 Phil. Amartya Sen. Bayles. 16. Buchanan & Brock. 32 Eur. supra note 1. Brock (Book Review). Posner. Donald VanDeVeer. since respecting individuals’ preferences is not an end unto itself from an economic standpoint. Legally Enforceable Commitments. as reflected in people’s willingness to pay for entitlements. 1. focusing on economic efficiency. Econ. 4 Law & Phil. • C. 232. Principles of Biomedical Ethics 176–87 (5th ed. Ian M. Childress. Freedom of Choice. Economics.318 law. 311. 321–22 (1985). something they actually and rationally prefer to have. Michael D.D. provides economic analysis with a yardstick for measuring well-being. Ethics. However. On the role of freedom within normative economics and other consequentialist moral theories. . at 40–47. The Economics of Justice 92–99 (1983). supra note 4. the freedom to choose among different alternatives is a component of well-being. It is one object of people’s preferences. It then proposes a mathematical formulation for determining the efficiency of paternalistic rules (subsection 3).15 Attributing intrinsic value to freedom and autonomy militates against paternalism. 269 (1988). Kleinig. 233–34 (1992). private will. see generally Richard A. it contains no constraints on the maximization of total well-being—including no constraint against curtailing people’s freedom. while promoting people’s well-being is the strongest argument for paternalism. Deciding for Others: The Ethics of Surrogate Decision Making by Allen E. and Politics 151 (2002). Rev. Buchanan & Dan W. The Compatibility of Efficiency and Paternalism The conflict between freedom and welfare lies at the heart of the debate about paternalism. Little. & Phenomenological Res. economics. at 48–51. 2001). instrumental role. Third. Within normative economics.16 15. and morality Can all or some of these manifestations of paternalism be justified? We will first examine this question according to consequentialist normative theories. freedom does not have an inherent value but rather plays a secondary. First. including normative economics. 10 Phil. & Pub. For general surveys of the competing theories of well-being.17 These theories maintain that human well-being is determined by the presence of pleasure and the absence of pain. including normative economics. supra note 4. Cal. many consequentialists—including. supra note 1. 73 U. would embrace paternalism. 87.18 The epistemological objection—that every person knows best what would maximize her happiness—is unpersuasive. it should endorse paternalism whenever it brings about the best outcomes. see Mill. Judgment. Sartorius. Camerer.20 Lawrence Haworth. Husak. at 113. Paternalism and Autonomy. On this objection. Chi.. Aff. 225 (1986). Rev. Paternalism.legal paternalism 319 One could have thus assumed that consequentialist theories. and Learning: Neuroscience and Paternalism. The Enforcement of Morality. 59 S. all things considered. Dworkin. 1989). 81 Yale L. at 70–76. Regan. most welfare economists— object to paternalism. Cognitive psychology studies attesting to people’s bounded rationality are abundant. supra note 5. supra note 11. and Commitment. 891. Normative Ethics 25–41 (1998). L. Since consequentialism places no constraints on promoting the good. Donald H. 27. supra note 1. The Psychology of Judgment and Decision Making (1993). Shelly Kagan. Cognitive Illusions and Their Implications for the Law. Rev. For shorter surveys. Reasons and Persons 493–502 (1984). 27–28 (1981). Arneson. we substantiate this claim with regard to several theories of well-being. In fact. A person’s belief that a certain course of action will yield the greatest happiness for her may be erroneous. 113–14. Hogarth. Liking. see Robin M. 17. in The Inner Citadel: Essays on Individual Autonomy 155 (John Christman ed. at 84–85. so it seems. For clear. 106–09 (2006). at 107–09. Mental-State Theories Paternalism is clearly compatible with consequentialism resting on mentalstate theories of human well-being. in Sartorius. Identity. Howard Rachlin. Paternalism. . Paternalism. focusing on the preferences theories underlying normative economics. and. 20. see Derek Parfit. 900–10 (1972). book-long surveys of the literature on various phenomena of bounded rationality. Feinberg. L. see Ward Edwards & Detlof von Winterfeldt. We maintain that this objection is unsound and that principled antipaternalism is incompatible with consequentialism.19 Both common experience and scientific studies attesting to human fallibility and bounded rationality refute the claim that people invariably know best what would make them happy. Rolf E. in such a case. Freedom. 92–93. Douglas N. Wanting. In what follows. 18. Colin F. obstructing the action may increase her happiness despite the displeasure involved in having her choices frustrated. Scott Plous.J. Autonomy and Utility. Judgement and Choice: The Psychology of Decision (2d ed. 19. 1987). This is not to say that an ideal preferences theory gives carte blanche to paternalism. and accomplishment) that are intrinsically good. 2006). autonomy. Quasi Rational Economics (1991). Richard H.21 However. Indeed. See also infra p. the described position is deontological on the factoral level. Having relatively broad freedom to make one’s own decisions. Arkes & Kenneth R. whenever a person’s action would detract from her objective good. Hammond eds. and an intervention would.. all things considered. . Judgment and Decision Making: An Interdisciplinary Reader (Terry Connolly. 2000). Useful collections of studies of bounded rationality are Judgment under Uncertainty: Heuristics and Biases (Daniel Kahneman. 95–112 (1989). one must hold that the total well-being of a person can never increase if her liberty is decreased. 2000). 2002). supra note 4.22 Ideal Preferences Theories Ideal preferences theories of well-being maintain that people’s well-being is enhanced to the extent that their ideal desires are fulfilled. economics. 26–27 above.. This position is no longer consequentialist. including wrong ones. to be a principled antipaternalist within the objective goods framework. 21. and frames (Daniel Kahneman & Amos Tversky eds. Paul Slovic & Amos Tversky eds. Choices. The pertinent desires are those a person would have were she to calmly and rationally consider the issue. 2d ed. 326. Heuristics and Biases: The Psychology of Intuitive Judgment (Thomas Gilovich.320 law. paying heed to all the relevant information and without being subject to any external pressure or prejudice.. Hal R. The Construction of Preferences (Sarah Lichtenstein & Paul Slovic eds. paternalism is justified. Dale Griffin & Daniel Kahneman eds. is quite high on most people’s list of Decision. values. enhance her well-being. 22.. and morality Objective-List Theories Objective theories of well-being posit that well-being consists of having certain things (such as health.. Following the distinction between factoral and foundational normative theories introduced in pp. Ideal preferences theory may endorse paternalistic interventions when a person’s actual preferences are not the ideal ones. and Choice 43–72. personal freedom is an important element of anyone’s well-being. Buchanan & Brock. According to these theories. but rather deontological: it introduces a constraint that personal freedom or autonomy should not be infringed upon even for the sake of increasing the total amount of well-being. Thaler. at 33–36. 1982). and hence not just any choice that detrimentally affects a person’s health or excellence in life should be paternalistically obstructed. 68 J. 317 (1977). supra note 1. A Methodological Assessment of Multiple Utility Frameworks.26 In the typical case of dissonance between first. and the Intrinsic Reward of a Life. . See. then it seems that intervention aimed at enhancing one’s well-being cannot be defended under any circumstances. 90–93 (1996). Phil. 26. Daniel M. Frankfurt. 5 Econ. this alleged antipaternalistic implication of the actual preferences theory is one of its most compelling features. but also regarding their own preferences. Hausman & Michael S. ed. we will argue. 1984). Consequentialism based on an actual preferences theory of well-being is not incompatible with paternalism for at least three reasons. In such cases. Sen. that normative economics does not rest on pure actual preferences theory but rather on a theory that is closer to ideal preferences. open the door to paternalism under appropriate circumstances. Robin West. Amartya K. she may approve 23.25 For example. Freedom of the Will and the Concept of a Person.. 1986). the first-order ones are conceived by the person as injurious to herself. & Phil. First. Whenever a person’s first-order preferences are not in harmony with her second-order ones.. Brennan. first. 189 (1989). 170–71 ( Jon Elster & Aanund Hylland eds. 5 (1971).legal paternalism 321 ideal preferences. and the Case for Paternalistic Intervention. Yet the second-order preferences are as actual as the first-order ones. McPherson. & Pub. See generally Harry G. Interpersonal Comparisons: Preferences. at 76–84.and second-order preferences. A famous example is Ulysses and the Sirens. 3 Legal Theory 125. her actual choices and behavior are likely to reflect only the former. e. 126 (1997). Aff. Hedonism. 6 Phil. For many economists.24 In what follows. and second. 24. in Foundations of Social Choice Theory 165. Timothy J. Actual Preferences Theory An actual preferences theory of well-being—measuring one’s well-being by the extent to which a person’s actual desires are fulfilled—presents the greatest difficulty for justifying paternalism. Economic Analysis and Moral Philosophy 72–73. Jon Elster. Ulysses and the Sirens: Studies in Rationality and Irrationality (rev. See Dworkin. that even consequentialism which rests on actual preferences theory of well-being is compatible with paternalism. Good. 25. Rational Fools: A Critique of the Behavioral Foundations of Economic Theory. a person may regularly eat junk food and at the same time wish her eating preferences were different. If promoting one’s well-being consists exclusively in satisfying one’s actual preferences. Paternalism.23 It does. See Allan Gibbard. Rationality. however. people have preferences not only regarding different bundles of goods and services or different courses of action.g. 9 Econ. Rosemary Carter. Therefore. 253. 29 (1991). Paternalism. The claim is that in at least some cases. 1989) [hereinafter Sunstein. this argument 27. 30. Peter Penz. To the extent that this is true. it is less powerful within a consequentialist. Robert E. 659. 10 Law & Phil. . Chi.27 We do not argue that people who dislike their firstorder preferences necessarily wish them to be paternalistically frustrated. G. 29. economics. Deconstructing Community Self-Paternalism.29 Paternalism toward children not only protects them from immediate mishaps but also.. Legal Interference. Robin West. Disrupting Voluntary Transactions]. Chapman & J. supra note 1. 317 above.322 law. Disrupting Voluntary Transactions. Justifying Paternalism. at 1141–42. Sunstein. 53 U. Interventions in people’s choices and behavior frequently result in an adaptation of their preferences to conform with the rules. supra note 2. The Scope and Limits of Preference Sovereignty. indirect evidence for the prevalence of such second-order preferences may be found in the fact that democratically elected governments throughout the world widely engage in paternalistic regulation. supra note 19. L. See also Gostin & Gostin. Rev. An important objection to this justification of legal paternalism is that the paternalistic rule applies not only to people who actually hold these second-order preferences but also to people who do not (see Sunstein. in Nomos XXXI: Markets and Justice 279 (John W. and no less importantly. Sunstein. Jonathan Schonsheck. Taking Preferences Seriously. Legal Interference with Private Preferences. supra note 27. Legal Interference]. 144–45 (1977)). 254–58 (1993). cost-benefit analysis. e. Cass R. Political Theory and Public Policy 19–56 (1982). supra note 27. at 75.30 These people may in retrospect be grateful for the initial paternalistic treatment. Patronizing Paternalism. Laundering Preferences.g. 82–85. Cass R. 670–75 (1990). Burrows. supra note 11. actual preferences theory does not entail principled antipaternalism. and morality of external intervention that would impede the fulfillment of her first-order. Husak. a second-order approval of interference with first-order preferences is plausible. Legal Interference. Robert E. Arguably. Phil. Dworkin. Goodin. Sunstein. Rev. See. in Foundations of Social Choice Theory. As stated. 1129 (1986) [hereinafter Sunstein. Consumer Sovereignty and Human Interests 87–119 (1986).. at 76–84. & Phil. Tyler Cowen. Ronald Pennock eds. there may be no consequentialist reason to give greater weight to the ex ante actual preferences than to the ex post ones. 64 Tulane L. While this objection may be compelling from a deontological perspective. 28. at 563–64 (reporting that resistance to seat belt and safety helmet legislation in the UK declined sharply after its implementation). J. at 1145–58. Examples of such regulation were provided in p. shapes their preferences so that they avoid such mishaps in the future. Goodin. at 217 (arguing that bans on smoking in public places have affected social norms about tobacco). supra note 23. revealed preferences. 7 Can. 133.28 A second reason why paternalism is not incompatible with an actual preferences theory of well-being is that norms influence and shape people’s preferences in various ways. Yet it suffices to show that in principle. The Wealth of Nations 423 (Edwin Cannan ed. Finally. consists of both cognitive and motivational elements. Despite claims to the contrary. and consequently to the maximization of total well-being. they do change over time. two general sets of assumptions must hold true. The second refers to attributes of the participants’ rationality. of course. concerning economic rationality. This second set of assumptions. A thin. given certain assumptions. The crux of standard economic theory is that. According to an actual preferences theory of well-being. Hence. incomplete because it does not answer the questions when and why the ex post preferences should take precedence over the ex ante ones. we now turn to an alternative (or additional) argument. this argument does not warrant any specific paternalistic intervention. their current preferences need not correspond to the overall balance of their lifetime desires. standard economic analysis does not rest on a pure actual preferences theory.. cognitive rationality requires only formal elements regarding the structure of a person’s set of preferences and her strategy of decision-making. even if people’s actual preferences are not affected by legal norms.31 Market forces lead to an optimal allocation of resources and entitlements. Having established that the actual preferences theory of well-being does not rule out paternalism. and no restraints of trade. For this happy result to ensue. not only current desires matter but also future ones. Even if they could. however. people may regret their past decisions regarding pension savings or higher education. For example. the sum of human well-being (“social welfare”) is maximized if everyone acts so as to maximize one’s own well-being. no reason to assume that people can foresee their future desires precisely. . Once again. focusing on normative economics. paternalism is not incompatible with a consequentialist theory resting on an actual preferences theory of well-being. the well-being of a person is enhanced to the extent that one’s actual desires are satisfied over the course of one’s life. The first set concerns the conditions of perfect competition.legal paternalism 323 is. 1937) (1776). Adam Smith. such as numerous actors. It only establishes that paternalism is not necessarily inconsistent with an actual preferences theory of well-being. full information. The gap between present actual preferences and the overall balance of lifetime actual preferences leaves room for paternalistic intervention. such as transitivity and 31. There is. This assumption excludes both true altruism (choices and actions aimed solely at furthering the well-being of others) and idealism or commitment (acting out of a sense of duty even contrary to one’s self-interest and sympathetic preferences). assume tremendous capacity to gather and process information. If economic agents were not self-interested. Ulen. supra note 25. 385. Pathologies of Rational Choice Theory: A Critique of Applications in Political Science 18 (1994). then the prisoners in the prisoner’s dilemma scenario would face no dilemma. Explaining Collective Action with Rational Models. Green & Ian Shapiro. 33. The Economic Way of Looking at Life.34 Most conventional economic studies. Donald P. 153–56. supra note 16. supra note 26. Brennan. 25–26 (1989). supra note 24. especially those relating to the behavior of firms. Econ. Thomas S. It assumes that people always choose the option that yields the greatest benefit to them (they are “rational maximizers”).. Amartya Sen. and morality completeness of preferences. Widespread infringement of the assumptions of thin rationality would have the same destructive results for standard economic analysis. .33 It is often said that economic analysis is not committed to a thick definition of rationality and that it requires only a few very basic elements of thin rationality.32 A thick definition of rationality adds to the above structural elements an assumption about human motivation. Cognitive Imperfections and the Economic Analysis of Law. at 19. Hausman & McPherson. The basic prediction regarding the efficiency of the competitive market would not hold if a considerable portion of the participants preferred unprofitable transactions to profitable ones. Rev. 12 Hamline L.35 All standard concepts of market failure make sense only under the rationalmaximizer assumption. in The Inner Citadel. and information (characteristically a public good) would be produced and supplied like any private good.324 law. supra note 34. Elster. Rev. Identity. 15 (1995) (on the tendency of the public choice tradition). Choice 25. 62 Pub. Autonomy. at 19 (regarding economic analysis of law). See Green & Shapiro. Decisions based on irrelevant information. in Accounting for Tastes 139 (1996). Sen. supra note 34. and ignoring irrelevant information. at 38–65. Becker. at 141–46. Rationality and Social Choice. and Welfare. Gary S. 190–91. supra note 25. 385–86 (1989). 35. economics. e. Hausman & McPherson. at 201. Green & Shapiro. Accordingly. See. supra note 24. Some economic models. See also supra pp. 85 Am. disregard of 32. 34. Russel Hardin. there would be no problems with the provision of public goods (commonly explained as an instance of prisoner’s dilemma). at 51–65. at 189. are based on both thin and thick notions of rationality. but rather devoted altruists or idealists. 11–12.g. however. David Goetze & Peter Galderisi. 1. including economic analyses of law. ordinarily assumes both thin and thick rationality is descriptive. Reder eds. maximization of social welfare requires the consideration of preferences people would have in the absence of such limitations and biases. supra note 2. Harsanyi. Econ. the closer it comes to an ideal preferences theory. should.. Fairness Versus Welfare 23. its normative implications are the same as those of a rational preferences theory of well-being. supra note 1. Hogarth & Melvin W. Reder eds. in Rational Choice. Burrows. Akerlof & Dickens. Standard economic analysis thus does not embrace a pure actual preferences criterion of well-being. 1987). See Louis Kaplow & Steven Shavell. Nothing inherent in economic analysis precludes inquiry into the effect of various phenomena of bounded rationality on maximization of human well-being. Kenneth J. 251–52. 54–56 (Amartya Sen & Bernard Williams eds. 39. 1982)... and in recent years. at 237.g. economic analysis does not rest on the normative claim that rational preferences are a superior criterion for human well-being than actual ones. some economists explicitly maintain that in cases of bounded rationality.. The Contrast between Economics and Psychology (Robin M. 648–748 (1990). in Utilitarianism and Beyond 39. Arrow. or computational errors are unlikely to accomplish one’s aims. John C.37 The claim that economic analysis. 146 J. Paternalism. rather than normative or logical. Cf.36 Arguably. The more demanding the definition of rationality introduced into a theory. Inst. Paternalism and Promoting the Good. supra note 2. 1987). Rationality of Self and Others in an Economic System. complex theories. to the extent that standard economic analysis is built on the assumption that people are rational maximizers. 410–13 (2002). e. Arnould & Grabowski. Between a pure actual preferences theory of well-being and a pure ideal preferences theory. shortsightedness. Symposium on Views and Comments on Bounded Rationality as Applied to Modern Institutional Economics (Rudolf Richter ed. 37. Rational Choice.).legal paternalism 325 risks. Moreover. Hogarth & Melvin W.38 Just as economic analysis readily explores the implications of deviations from the perfectly competitive market (market failures). However. and economic analysis of law in particular. in Sartorius. investigate the implications of deviations from the assumptions of (thin and thick) rationality. See. & Theor. such as inability to process information or wishful thinking. Patronizing Paternalism. It merely rests on the factual claim that people’s actual preferences are rational. or to maximize aggregate social utility. Akerlof. Morality and the Theory of Rational Behaviour. The Contrast between Economics and Psychology 201 (Robin M. increasingly does.39 36. there is a whole spectrum of compromised. supra note 2. 38. Dan Brock. whatever they may be. supra . it can. overestimation of the frequency of outstanding events due to the tendency to remember them better (known as the availability problem). 1014 (2004).40 Research also reveals deviations from the assumption of self-interested maximization. . Behavioral Law and Economics (Cass R. Russell B. See. see Daphna Lewinsohn-Zamir. dependence of decisions on the manner in which data is presented (so-called framing of decisions). and failure to rationally analyze relevant information or examine alternatives. economics. 3 (1984). 94 Am. L. The Choice Between Property Rules and Liability Rules Revisited: Critical Observations from Behavioral Studies. 25 J.. should take these deviations into account. See. and in particular to predict what rules and institutions will maximize aggregate social utility. though it is more difficult to model deviations from the thick rationality assumption than from the thin one. Rev. See sources cited supra note 20. The Coase Theorem: Some Experimental Tests. Egalitarianism. 227–31 (2001). 219. See generally Robert C. inability to make a correct cost-benefit analysis when the data is complex. consideration of irrelevant factors. Ellickson. 42. 88 Cal. undervaluation of future benefits and costs in comparison to present ones (myopia). e. particularly the probability that a future risk will be realized. 28 J. & Econ. Robert Sugden. analyses. and Difference Maximization. many people prefer to share the proceeds of a transaction fairly rather than to monopolize them. ignorance of relevant information. principled antipaternalism is no longer a tenable position of economic analysis. Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics.326 law. This trend is reflected in the law-and-economics literature as well.. overoptimism. and morality Empirical data evidencing widespread deviations from the assumptions of rationality is abundant. 23 (1989). 2000). For a brief review of experimental studies using the Ultimatum Game.. 41. Rev. Research indicates that people’s perceptions.g. For example. and decisions are affected by systematic biases. Elizabeth Hoffman & Matthew L. Rev. L. Sunstein ed. 73 (1982). 65 Chi. note 2. Rev. Beyond Economic Man: Altruism.-Kent L. 40. Econ. Spitzer. Common errors include misjudgment of probability. Norman Frohlich & Joe Oppenheimer. e. Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics. Conflict Resol. Korobkin & Thomas S. 80 Tex.42 Any attempt to understand human behavior.g. Ulen. L. 1051 (2000). Once the prevalence of systematic deviations from the rationalmaximizer model is acknowledged.41 Experiments also indicate deviations toward altruism and toward maximization of the difference between one’s own utility and that of others. The Opportunity Criterion: Consumer Sovereignty without the Assumption of Coherent Preferences. ignorance of the incompleteness of data and the limitations of judgmental skills leading to overconfidence in evaluations and predictions. g. it is troubling for free marketers who distrust the government and oppose any sort of regulation. supra note 3. [a]rguments that incentives or real-world 43. See. 1551 (1998). and Consumer Contracts: An Empirical Perspective. Life. L. 67 (2002). Not only does normative economics not require principled antipaternalism. closer to rational preferences theory. . The antipaternalist sentiments of some economists are so strong. . 91 Geo.legal paternalism 327 We may conclude that paternalistic intervention in people’s freedom is not necessarily inefficient. 2. Klick & Mitchell. Possible Objections The claim that economic efficiency and paternalism are not incompatible troubles many economists. Paternalism can certainly be efficient once it is understood that the theory of well-being underlying normative economics is.43 Some antipaternalists have questioned the validity of the empirical studies substantiating the prevalence of bounded rationality. Steven Winter. e.44 However. e. in fact. . 44.L. the cognitive phenomena on which the case for paternalism rests are well understood and have support from hundreds of studies that have used a wide variety of subjects. or that the market would drive out bad judgment. Richard A. claiming that seemingly mistaken judgments are not mistakes. such as setting default rules which the decision-maker believes would benefit the interests of the people to whom they apply (rather than simply trying to imitate their choices).J. supra note 3. . . & Liberty 470 (2007). supra note 3. 2 N. that they object to even the mildest forms of paternalism. in fact. Joshua D. See. and the Law. contexts. . Rev. Whitman & Rizzo. Posner. In particular. that they would disappear with monetary incentives. A Clearing in the Forest: Law.. Once second-order. . Why Law and Economics’ Perfect Rationality Should Not Be Traded for Behavioral Law and Economics’ Equal Incompetence. J. paternalism is sometimes efficient even under the prevailing. Glaeser. though doubtful. and Mind 92–96 (2001). Conceptually. 50 Stan. Wright. L. as Jeffery Rachlinski nicely pointed out. Gregory Mitchell. Paternalism. and overall lifetime preferences are recognized and respected. these claims fail both empirically and conceptually. assumption that normative economics rests on an actual preferences theory of well-being.U.Y. but the latter is in fact incompatible with the former. ex post. Behavioral Law and Economics. Behavioral Economics. Rational Choice.g. “Empirically. and incentives.. . Rachlinski. See also Amos Tversky & Daniel Kahneman. For similar arguments. Klick & Mitchell. 104–06. U. at 96–97. 739 (2000). at 1223. Rev. Paternalism]. and the outcomes of other choices (such as smoking. Skeptics. 97 Nw. economics. L. Toward a New Legal Realism. and not acquiring an education) are spread out over a very long time. Psychol. Whitman & Rizzo. supra note 18. S251. 21–33. They ignore the fact that paternalistic interventions may actually serve as a means to further learning. 1165. Paternalism. 68 U. at 62–82. Bus.50 Some choices (such as riding a motorcycle without a helmet) may have fatal consequences. Investor Psychology and Asset Pricing. Rev. and Cautious Supporters. on their “educational investments. people learn to appreciate its true worth and develop a stronger preference for it. Hogarth. at 1626. and thus learning through trial and error may be very costly and ineffective in these cases. 46. 49. at 24–26. 53 Ann. supra note 18. Camerer & Robin M. The “New” Law and Psychology: A Reply to Critics. supra note 4. 99–102. 1167–68 (2003) (citations omitted) [hereinafter Rachlinski.328 law. 47. Rev. and morality circumstances cure people of their reliance on misleading information fail to identify exactly how this would occur. . Risk & Uncertainty 7. supra pp. see Camerer. 500–09 (2002). The extra motivation that comes with monetary incentives and real decisions cannot just ‘work by magic. e. learning from one’s 45. supra note 3. 59 J. Colin F.g.46 One such line of argument stresses the long-term and indirect adverse effects of paternalism on people’s motivation to act deliberately and carefully. 1533 (2001) (describing the survival of cognitive biases in securities markets). 322. 19 J. 56 J. they are often overstated. 33 (1999). L. In all of these cases. Mill. Rachlinski. Cf. see. Farber.48 By having a certain entitlement (such as a safe working environment or social security rights). See supra pp. Rev.” and more generally. 85 Cornell L.”47 While such possible effects should be taken into account. 290–94 (2001). LeBoeuf. 491. David Hirshleifer. Rationality. Chi.49 Those arguments also disregard the fact that some decisions (e. not saving. Eldar Shafir & Robyn A. The Uncertain Psychological Case for Paternalism. Regan. The Effects of Financial Incentives in Experiments: A Review and Capital Labor Production Framework. See supra p. supra note 3. Jeffery J. On various ways in which paternalistic interventions facilitate learning that is unlikely to occur otherwise. S274 (1986). Fin. Rational Choice and the Framing of Decisions. Rachlinski. those involved in buying a house) are made very infrequently. supra note 45.g. Daniel A.’”45 Other attempts to reconcile the conclusion that paternalism may be efficient with antipaternalist sentiments follow the familiar lines of argument aimed at defending consequentialism against the deontological critique. at 115–16. 50. 279. 22–24. Jeffrey J. 48. on the “development of effective decision-making skills and strategies.. 53. who are in their formative years. Presumably. 52.. Chris Guthrie. 55. Acknowledging that the case for paternalism depends upon demonstrating that the costs of learning exceed the costs of paternalistic intervention does not imply that such a case cannot be made. 1223. Rev. Extreme. 568 (1990). James G. 309 (1996). at 1220–22. Paternalism. numerous studies have shown that cognitive biases are prevalent among experienced professionals.g. comprehensive state paternalism may indeed lead to undesirable results in terms of people’s development. 58 J.51 Moreover. 24–27. Personality & Soc. See supra pp. David Dunning et al. supra note 18.to rule-consequentialism:55 even if people sometimes know what is best for others. Personality & Soc. at 1219. Wistrich. Such totalitarian measures are. Paternalism. Individual Differences. Overconfident Prediction of Future Actions and Outcomes by Self and Others. supra note 45.legal paternalism 329 mistakes may be impossible because recognition of the mistake comes too late. e. the fact that it is often impossible to know with much certainty what would have happened had a different choice been made. the risk of error is high enough to 51. The Overconfidence Effect in Social Prediction. Impediments to learning include people’s profound overconfidence in the correctness of their decisions. 58 J. 582 (1990). Psychol. who presumably have ample opportunity to learn from their mistakes. unacceptable under any normative theory anyway. 54. See. Rachlinski. however. Jeffrey J. Rev. Cognitive Errors. Inside the Judicial Mind. 86 Cornell L. 777. Learning to Be Risk Averse. Rachlinski. Camerer. at 99–100. March. Another antipaternalist argument often used by consequentialists follows the familiar move from act. . Chi. and a lack of feedback. supra note 45.52 Indeed. 207. models of learning from experience (compatible with experimental data) indicate that learning leads to decidedly greater risk aversion in the domain of gains (where expected returns of alternatives are positive) than in the domain of losses (where different choices result in different harms). Psychol. 103 Psychol. Robert P.. Rachlinski. L. that they are unlikely to disappear as a result of letting individuals make more mistakes. 782–83 (2001). the antipaternalistic development argument is particularly relevant to minors. the reluctance to admit that one has made a mistake.53 In addition. even in people of high intelligence and with rich life experience.54 Yet the latter is the area typically relevant to legal paternalism. and Paternalism. 219–21 (2006). Vallone et al.. Nevertheless. many cognitive biases are so deeply rooted. Rev. there is practically a consensus that legal paternalism toward children and adolescents is justifiable. 73 U. Jeffrey Rachlinski & Andrew J. see Thaddeus Mason Pope. as opposed to intuitionistic. her decision as to what is best for drivers. see the sources cited in supra note 19. economics. borrowers. Unrealistic Optimism About Susceptibility to Health Problems: Conclusions from a Community-Wide Sample. Clark. overoptimism. based on objective. Chi. Spence & Frank Cross. For example.58 In setting paternalistic rules that aim to protect people from their shortsightedness. Sunstein. or would-be smokers is unlikely to be affected by emotional stress. Elites. Mashaw. policy-makers enjoy a clear advantage. For discussions of this argument in the philosophical literature.ssrn. After the Rights Revolution: Reconceiving the Regulatory State (1990).59 Even more importantly. 97 (2000) (administrative decision-makers are likely to select the public policy the median voter would prefer if she had full information and the opportunity to deliberate). 58. A Definition and Defense of Hard Paternalism: A Conceptual and Normative Analysis of the Restriction of Substantially Autonomous SelfRegarding Conduct 405–24 (2003.” and so forth. policy-makers weigh the alternatives in a more detached and calm manner. L. 1703. peers’ social pressure. Neil D. and other common manifestations of bounded rationality. See Whitman & Rizzo. supra note 3. as they can rely on professional. a claim that is “desperately implausible in many real-world contexts”). dissertation. 1175. Medicine 481 (1987) (demonstrating that people consistently believe that they are less prone to suffer harm than their .60 It may be reasonably assumed that the various inputs to the 56. 59. wishful thinking. Antipaternalists also resort in this context to slippery slope arguments. 89 Colum. Behavioral Analysis of Law. Rev. general statistics.56 Such a ban would also avoid the potential for abuse of power. e. supra note 3. unpublished Ph. see. David B.cfm?abstract_id=1087383). offered by public choice theory. Weinstein. see also Cass R. one-dimensional depiction of political and regulatory actors as motivated solely by self-interest and greed. See. and Traditions in the Making of Corporate Law. overoptimism regarding low-probability risks. Georgetown University. For a critique of the simplistic. In the recent economic literature. Cass R. technical. computation limitations. 1190 (1997) (pointing out the advantages of statistical. and morality warrant a general ban on paternalism. Robert C. they are clearly exaggerated. Rev. disregard of low-probability risks. For a critique of the slippery slope argument against paternalism.D. see Jerry L. Whitman & Rizzo.330 law. especially when paternalism is practiced by state officials. For a balanced analysis of the pros and cons of private and public ordering. 89 Geo. Behav. 57. L.J.com/sol3/papers. Chaos.57 While these considerations must not be overlooked. “illusion of control.g. while a policy-maker may suffer from an availability problem (which may be further manipulated by interest groups). Greed. judgments). available at http://papers.. 60. and statistical knowledge that is often unavailable to individuals. Sunstein. 1718–19 (1989) (criticizing the “odd strategy” of antipaternalists who claim that regulators do not know better than the regulated what is in the latter’s best interest.g. 64 U. Contracts. e. L. 10 J.. and Governance: Using Public Choice to Improve Public Law (1997). A Public Choice Case for the Administrative State. wishful thinking. focusing on the unique features of a problem and reflecting the “illusion of control” tends to produce over-optimistic assessments.. However. 61. (Papers & Proc. Rev. are likely to result in a sensible assessment of the relevant factors.legal paternalism 331 legislative. 39 Management Science 17. 85 Rev. Thomas S. The Effects of Mandatory Seat Belt Laws on Driving Behavior and Traffic Fatalities. While the efficacy of health and safety (and other) regulation is controversial. and judicial processes. administrative. in the current public atmosphere in Western liberal democracies. Moreover. Rev. Compare the “preferences for constraints” argument discussed in pp. 24–27 (1993) (demonstrating that “inside view” of risk taking. Telling people that they are stupid is seldom a winning strategy in a democracy. but they cannot serve as a general. Econ. along with the wisdom and cumulative experience of the relevant decision-makers. principled argument against paternalism. Finally. policy-makers very rarely conceal their ulterior motives behind paternalistic rhetoric. is likely to produce much more accurate predictions and decisions). than on paternalistic arguments.” focusing on statistical aggregations. so may the opposite preferences of people who resent the notion that the state should do nothing peers—a bias that is likely to affect one’s self-regarding decisions but not the decisions made regarding other people). and more generally policy-makers’ accountability. Timid Choices and Bold Forecasts: A Cognitive Perspective on Risk Taking. 27–29 above. See.61 As for the risk of abuse. The risks of policy-makers’ errors and abuse should be taken into account in identifying the matters in which state paternalism may bring about the best outcomes and in choosing among different forms of intervention. Econ. e. and Judicial Review of Agency Rulemaking. while an “outside view. 62. Cognitive Loafing. 87 Cornell L. Shelley E.) 91 (2001). Taylor. 91(2) Am. Rather than justifying a policy on the ground that the policy-maker knows better than her constituency what is good for them. Behavioral Policies and Teen Traffic Safety. Daniel Kahneman & Dan Lovallo. are likely to mitigate decision-makers’—including collective decision-makers’—cognitive errors and biases. 486 (2002). There is a greater risk of abuse in letting policy-makers rely on justifications such as “unequal bargaining power” or market failure. this was indeed a real concern two or three centuries ago and may still be a concern in some societies.g. Dee & William N. . & Stat. Mark Seidenfeld. Evans. Alma Cohen & Liran Einav. some studies clearly demonstrate the positive effect of paternalistic regulation. she would ordinarily justify it on distributive or efficiency grounds. judicial review. economists may argue that disinterested people would experience displeasure knowing that other people are treated paternalistically. Social Conformity.62 While such disinterested preferences may well exist. 828 (2003). Positive Illusions: Creative SelfDeception and the Healthy Mind 3–45 (1989) (providing ample evidence of the various ways in which “the self is self-serving”). legal paternalism is justified whenever its expected benefits exceed the expected costs.63 In conclusion. The model assumes that neither the agent’s relevant choice nor the paternalistic rule affects third persons. 27–29. See also infra pp. In fact. The model deals with legal rules that apply to many people and takes into account their heterogeneity. economics. and choose the one they think is the correct one. A Simple Model Within a consequentialist framework. 340–41. The policy-maker’s sole motivation is presumed to be the maximization of aggregate social utility. welfare economics does not rule out paternalism. agents face a binary choice between alternatives X and Y. More fundamentally.64 To keep the formula simple and avoid issues of standard market failures (such as monopolies and externalities) and distributive concerns—both of which often accompany manifestations of bounded rationality—we assume a perfectly competitive market and disregard issues of distribution. and morality to protect people from losses and suffering people bring upon themselves. . supra note 2. The goal of the following formulation is to provide a framework for determining when a paternalistic rule is efficient. normative judgments are not made by aggregating preferences but rather by assessing the strength of the competing arguments. The next subsection provides a general model to evaluate the economic efficiency of paternalistic rules. See supra pp. In the model. at 255–56. The paternalist is assumed to attain perfect compliance with the paternalistic rule and to bear the costs involved in attaining such compliance. Due to the difficulty of modeling nonselfish behavior. we maintain that being a consequentialist normative theory. It further assumes that people are self-interested maximizers. welfare economics endorses paternalism whenever its benefits even slightly exceed its costs. We leave open the question of whether it may be efficient to paternalistically interfere in people’s altruistic or idealistic behavior when such behavior has a detrimental effect on the actor. the model does not deal with the issue of altruistic or idealistic behavior (which may detract from a person’s well-being).332 law. the one with the 63. 3. who sometimes make suboptimal decisions due to various cognitive imperfections. that is. see Zamir. For further discussion of this point. but with suboptimal decisions due to cognitive limitations only. 64. In words. possibly by eliminating or prohibiting Y. The following is a formal presentation of these definitions: Pli = Pi(Y is chosen ∩ X is correct) Pgi = Pi (Y is chosen ∩ Y is correct) Li = Ui (X|Y is incorrectly chosen) – Ui (Y|Y is incorrectly chosen) Gi = Ui (Y|Y is correctly chosen) – Ui (X|Y is correctly chosen) 67. Pgi is the probability that in the i-th instance. multiplied by the probability of such a choice. To illustrate. Li. it is the loss from incorrectly choosing Y. The paternalistic rule limits the agents’ choice to X. absent the paternalistic rule. therefore. this expected “benefit” may be negative). . the expected benefit from the paternalistic rule in instance i equals: PliLi –PgiGi. The expected loss from not using a seat belt in this instance. the rule does not alter the choice’s outcomes. The model assumes that there 65..4). In this example. and Gi.g. . is 10 (the expected magnitude of various avoidable injuries. all instances in which a person decides whether to sign a voluntary enslavement agreement).legal paternalism 333 greater expected utility for each one of them. minus the gain from correctly choosing Y. n} is the set of instances in which any of the agents to whom the paternalistic rule applies faces a choice between X and Y (or would have faced such a choice absent the rule). less the inconvenience involved in wearing the seat belt).3. all instances in which any driver or passenger decides whether to use a seat belt). but also much smaller (e. Such cases. weighted magnitude of the various avoidable injuries). . assuming it is the incorrect choice.67 To see whether the paternalistic rule is efficient. The expected disutility of letting the agent choose Y in instance i is a function of Pli. Assume further that the probability that her decision not to use a seat belt is correct is 0. less the expected. Therefore. N may be much larger than the number of agents to whom the rule applies (e. and in either case.. the probability of choosing Y in instance i is 0.4 × (0. do not affect the assessment of the rule discussed thus far. the expected net benefit from forcing the agent to use a seat belt in instance i is: 0. Pgi.3 × 5) = 2.7 × 10 – 0.e. agents may choose either X or Y. 66. . Whenever the agent would have chosen X. assume that in 60 percent of the instances.g. N = {1. their choice may be correct or incorrect in the above sense. both Li and Gi are nonnegative. the agent would have correctly chosen Y and consequently gained Gi (in comparison to her utility from choosing X).66 As defined. Absent the paternalistic rule. weighted by their probabilities. one should weigh its expected benefits against its expected costs. 2.65 Pli is the probability that in the i-th case.2. a particular driver uses a seat belt and in 40 percent she does not (i. multiplied by the probability of such a choice (as defined.. The expected gain from not using a seat belt where this is the correct choice is 5 (avoiding the inconvenience involved in using the seat belt. absent the paternalistic rule the agent would have incorrectly chosen Y and as a result would have suffered a loss Li. 334 law, economics, and morality are only two types of costs: Fi, the frustration costs, reflects the agent’s disutility from being treated paternalistically in each instance i; and C, the paternalist’s total costs, which include the legislative, administrative, and judicial costs involved in establishing and implementing the paternalistic rule. An unconventional feature of the model is that it measures the losses to the agent from an incorrect choice of Y, Li, and her gains from a correct choice of Y, Gi, according to the preferences she would have had if her thin rationality were perfect, whereas her disutility from being treated paternalistically, Fi, is measured according to her actual preferences. Hence, a paternalistic rule that limits agents’ choice to X (whenever they face a binary choice between X and Y) is efficient if and only if its expected net benefit, B, is positive. B is calculated as follows: (1) B = ∑ ( Pli Li − Pg i Gi − Fi ) − C i =1 n At this point, it should be stressed that the fact that the decision-maker believes that B is positive does not, in and of itself, guarantee the rule’s efficiency. This is because the decision-maker is not omniscient. Her judgments may be erroneous for two main reasons: her own bounded rationality and her lack of familiarity with each agent’s personal values, beliefs, and needs. The legal paternalist may be wrong in assessing any of the above variables. Pli , Pgi , Li , Gi and Fi largely depend on agent-specific characteristics; they may therefore be misconceived by a decision-maker who is not intimately familiar with these characteristics. The paternalist may also miscalculate C, because it may be borne in the future by various branches of government (e.g., a paternalistic statute may impose future costs on the courts). The paternalist’s error may be in either direction and of any magnitude. However, just as any agent must make a decision whenever she is faced with a choice between X and Y, the policy-maker has to choose between introducing the paternalistic rule and not introducing it. The paternalist’s estimation of B is similar to the cost-benefit analysis required for any type of regulation under conditions of uncertainty. An attempt should be made to aggregate the various possible over- and underestimations of each of B’s variables, weighted by their estimated probabilities. A detailed analysis of the model, the interrelations between its variables, and possible relaxations of its assumptions—including the assumptions that paternalism has no long-term effects, that neither the agent’s choice nor the paternalistic rule affect third persons, that there are no other market imperfections, that there is no risk of misuse by the paternalist, that the legal paternalism 335 paternalist attains perfect compliance, and that no distributive issues are involved—has been provided elsewhere.68 For our purposes, the central point is that the formula, while facilitating a structured, rational assessment of the efficiency of any existing or proposed paternalistic rule, ascribes no intrinsic value to personal freedom and sets no constraint against its infringement. Indeed, people’s possible aversion to paternalism is likely to affect the function’s variables in two indirect ways. First, the greater one’s aversion to paternalism, the more subjective disutility Fi , one is likely to experience whenever treated paternalistically; Second, the larger the aversion to paternalism, the higher the expected costs of enforcing the paternalistic policy, C.69 A consequentialist may thus use (or rather misuse) the model to limit paternalistic interventions in various ways. Feelings of displeasure and frustration are hard to measure and monetize, and are therefore susceptible to manipulation. The antipaternalist may thus overestimate the total disutility to agents resulting from being treated paternalistically, F = ∑ Fi. However, if one believes that legal paternalism is morally objectionable on liberal or libertarian grounds, and should therefore be limited to cases in which nonintervention would result in large or even huge losses, the right way to do so is to add a constraint to the model. Manipulating other variables only obscures the real dilemma inherent in paternalism, the dilemma between freedom and welfare. The following section examines deontological perspectives on paternalism and demonstrates how deontological constraints may be incorporated into the formula. Such incorporation provides a better and more inclusive framework for a balanced evaluation of existing and proposed paternalistic rules, based on the pertinent normative factors. • D. Incorporating Deontological Constraints 1. Deontological Perspectives on Paternalism Deontology views principles of the right as prior to, and largely independent of, conceptions of the good. Deontological moral theories commonly attribute 68. Zamir, supra note 2, at 254–83. 69. The model attributes no weight, however, to disinterested, “moral preferences” about paternalism. Cf. supra pp. 27–29. 336 law, economics, and morality intrinsic value to people’s autonomy and freedom, prioritizing them over the promotion of good outcomes. Autonomy and freedom are complex concepts. Generally speaking, individual autonomy refers to the capacity to be one’s own person, to live one’s life according to reasons and motives that are one’s own, rather than the product of external forces.70 Accordingly, individuals should be respected as independent agents, having a right to set their own goals and make their own decisions even if such goals and decisions are not in their best interest according to some external criteria. At least an active/ intentional (and not insignificant) interference in a person’s autonomy or freedom is thus an infringement of the constraint against interfering with people’s autonomy or freedom, or more generally, the constraint against harming people. Even under these theories, one’s freedom may be restricted for the purpose of preventing a person from interfering with the autonomy and freedom of other people or otherwise harming them. This basic tenet of liberalism is known as “the harm principle.”71 By definition, paternalism entails intervention in people’s freedom, and sometimes also infringements of their privacy and control over their body, in situations where such intervention cannot be grounded in the harm principle.72 One may thus conceive of three basic deontological stances toward paternalism. The deontologist may (1) rule out paternalism under any circumstances; (2) justify seemingly paternalistic measures whenever it can be 70. On the complex notion of autonomy, see generally Gerald Dworkin, The Theory and Practice of Autonomy (1988); John Christman, Autonomy in Moral and Political Philosophy, in Stanford Encyclopedia of Philosophy (2003), http://plato.stanford. edu/entries/autonomy-moral. 71. Mill, supra note 4, at 13–14. 72. Indeed, self-harming behavior often involves actual or potential harm to others as well. Thus, for example, when a person is badly injured due to her carelessness, such injury not only harms that person but also imposes additional costs on the health care system and adversely affects the welfare of her dependents and associates. Such external effects are relevant factors in assessing the justification for any interference in people’s freedom, both from a consequentialist perspective (because CBA takes into account everyone’s welfare) and from a deontological one (because such interference may be justified by the harm principle). An analysis of “mixed-motives” interventions exceeds the scope of the present discussion (see generally Zamir, supra note 2, at 277–80, and the sources cited in supra note 11), which for simplicity’s sake focuses on harm to self. For a critique of the tendency of both consequentialists and deontologists to overstate external effects in order to legitimize interventions without resorting to “infamous” paternalistic arguments, see Burrows, patronizing paternalism, supra note 2, at 563; Dworkin, paternalism, supra note 1, at 65. legal paternalism 337 shown that such measures do not, in fact, infringe any deontological constraint; or (3) justify paternalism whenever enough good (or bad) is at stake to override the constraint. The first, absolutist, position—ruling out paternalism altogether—is internally coherent but suffers from all the drawbacks of absolutist deontology. It is irreconcilable with commonsense morality that legitimizes a great deal of paternalism in both private and public spheres. Hardly anybody supports such an extreme position nowadays.73 In any case, an absolutist position obviates the need for threshold functions because it denies that there is any amount of good that may justify paternalism. The second position—justifying certain instances of paternalism without relying on its contribution to good outcomes—is quite common in the philosophical literature. Several types of arguments are made in this context. Some arguments rely on the agent’s consent, be it hypothetical, tacit, prior, anticipated, or subsequent.74 Arguably, when such consent exists, the paternalistic intervention does not infringe upon the agent’s self-determination. Another argument is that when a person’s choice is uninformed or involuntary, proscribing, or frustrating, it does not violate her autonomy because the frustrated choice is not truly autonomous.75 The same may be said of people who are incompetent to make (certain) decisions due to their very young age, mental retardation, dementia, or comparable causes.76 Finally, paternalistic interventions that aim to secure a person’s future liberty—such as 73. Even Mill did not object to paternalism towards “children, . . . young persons below the age which the law may fix as that of manhood or womanhood,” and “those backward states of society in which the race itself may be considered as in its nonage.” (Mill, supra note 4, at 14). But see Gregory Mitchell, Libertarian Paternalism is an Oxymoron, 99 Nw. U. L. Rev. 1245 (2005) (criticizing Sunstein & Thaler’s argument, supra note 14, that some, very mild, forms of paternalism are compatible with libertarianism); Mark D. White, Behavioral Law and Economics: The Assault on Consent, Will, and Dignity, in New Essays on Philosophy, Politics, and Economics: Integration and Common Research Projects (Gerald Gaus, Christi Favor & Julian Lamont eds., forthcoming) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1274444). 74. See, e.g., Kleinig, supra note 1, at 55–67; VanDeVeer, supra note 1, at 45–94; John D. Hodson, The Principle of Paternalism, 14 Am. Phil. Q. 61 (1977). 75. Mill, supra note 4, at 106–07; Feinberg, supra note 5, at 111–16; Kronman, supra note 4, at 786–97; Arneson, supra note 11, at 482–89. One may extend the scope of justified paternalism by using a restrictive definition of what are to be regarded as “autonomous” preferences or decisions. See Scoccia, supra note 6, at 327–34. 76. See, e.g., Kronman, supra note 4, at 786–97. 338 law, economics, and morality prohibitions on enslavement contracts and on the use of drugs—are justified as enhancing autonomy and liberty.77 All of these arguments have been subjected to powerful critiques, and in any event justify only a fraction of the prevailing paternalistic practices. For instance, actual contemporaneous consent eliminates the paternalistic nature of the “intervention,” and hence cannot justify truly paternalistic measures. Subsequent approval may perhaps reduce the blameworthiness of an otherwise immoral paternalistic intervention, but cannot retroactively justify it because there was no actual consent at the time of the intervention.78 Neither is a hypothetical, rational consent an actual one. Relying on hypothetical consent is more often than not a rhetorical devise aimed at presenting a welfarist concern—what the agent should have rationally consented to for her own sake—under the guise of self-determination. It is therefore prone to legitimizing too much paternalism.79 Prior authorization to restrict an agent’s freedom concerning a specified behavior in well-defined circumstances may indeed justify a paternalistic intervention, but the practical significance of this justification is very limited, particularly in the public sphere where people rarely express specific consent to being treated paternalistically (general authorization, such as by participation in democratic elections, is insufficient under most accounts of this justifications). Furthermore, this justification does not legitimize legal paternalism toward people who have not expressed their prior consent (even if most of the people to whom a rule applies have consented to it).80 The notion of incompetence is not very helpful either, unless it is accompanied by welfarist considerations. This is because competence is (almost) always decision-related, and the question of which decisions an agent is competent to make depends on the expected effect of any decision on her well-being.81 Finally, the argument that some paternalistic measures are justified as a means 77. See, e.g., Mill, supra note 4, at 113–15; Joseph Raz, The Morality of Freedom 422–23, 425 (1986); Feinberg, supra note 10, at 62–81; Kronman, supra note 4, at 774–86. See also Gostin & Gostin, supra note 11, at 215–16 (arguing that paternalistic policies aiming at reducing the use of damaging narcotics and other unhealthy activities enhance people’s autonomy). 78. Feinberg, supra note 10, at 187; Kleinig, supra note 1, at 62–63; Thaddeus Mason Pope, Monstrous Impersonation: A Critique of Consent-Based Justifications for Hard Paternalism, 73 UMKC L. Rev. 681, 693–98 (2005). 79. Beauchamp & Childress, supra note 15, at 184–85; Pope, supra note 78, at 698–703. 80. Pope, supra note 78, at 688–91. Cf. supra note 28 and accompanying text. 81. Buchanan & Brock, supra note 4, at 18–20, 29–47. legal paternalism 339 to maximize future autonomy is available to consequentialists (assuming plausibly that autonomy is a component of human well-being) and to moderate deontologists (who justify an infringement if enough good is at stake). However, this argument cannot stand on its own, regardless of the goodness of outcomes, because deontology is not a maximization theory.82 It turns out that arguments attempting to demonstrate that some paternalistic interventions do not infringe a deontological constraint—and may accordingly be justified regardless of their effect on the well-being of the person whose freedom is curtailed—are very problematic. At most, they can justify only a small fraction of the paternalistic policies currently implemented in liberal democracies. In any event, there is no need to elaborate on these issues: for once it is established that a certain paternalistic act or rule does not infringe any deontological constraint, such a constraint need not be incorporated into a cost-benefit analysis of such an act or rule.83 We then come to the third position open to deontologists, namely justifying a paternalistic infringement of one’s autonomy for the sake of securing enough good (or, more often, eliminating enough bad) for that person. Indeed, as indicated earlier, we believe that this is the soundest and most fruitful depiction of the moral dilemma inherent in paternalism. It is, therefore, important to set a threshold that has to be met for the paternalistic intervention to be deontologically permissible (K in the notation proposed in chapter 4) and to resolve what types of costs and benefits should be deemed relevant in calculating the net benefit of the intervention (B in our notation). Finally, even if a certain paternalistic measure, standing on its own, is permissible, it may be judged impermissible if one can implement alternative measures with a less adverse effect on people’s autonomy and freedom. We discuss these three issues in turn. 2. Size of the Threshold In section C above, we proposed a simple model to determine when a paternalistic rule is efficient. To incorporate a constraint against limiting 82. See, e.g., Regan, supra note 18, at 116–17; Feinberg, supra note 10, at 75–79. In addition, a person who adversely affects her own future autonomy is not necessarily infringing a deontological constraint, and thus preventing her from taking an action that would have limited her future autonomy does not necessarily decrease the total infringements of deontological constraints. 83. Cf. supra p. 281. 340 law, economics, and morality people’s freedom, a threshold function may deviate from the original model in two respects. One modification would be to require that the net benefit should not only be positive (as required in the simple efficiency function (1)), but greater than some value K, representing the inherent value of personal freedom. Accordingly, function (1) would be modified as follows: (2) T = ∑ ( Pli Li − Pg i Gi − Fi ) − C − K i =1 n The size of the constraint K may vary considerably from one case to another. It depends, among other things, on the extent to which the frustrated choice is regarded as an important element in the agent’s life plan. To illustrate, the threshold that has to be met to permit a rule forcing people to use seat belts is plausibly higher than the threshold for a rule invalidating an unconscionable clause in a standard-form, consumer contract, assuming it rests on paternalistic grounds. At the same time, the threshold for the seat belts rule should be considerably lower than the threshold for a paternalistic rule forbidding the engagement in self-harming religious practices.84 The centrality of the frustrated choice in the agent’s life plan is closely connected to the notion of autonomy and to our model’s incidence. The reason for limiting the basic efficiency model to deviations from thin, cognitive rationality was primarily methodological: it rested on the difficulty to model deviations from thick, motivational rationality. Once we set a constraint against interfering in people’s autonomy, the distinction between choices reflecting cognitive limitations and choices based on nonselfish motivations (altruism, commitment, etc.) takes on a different significance. Interference resting on cognitive errors does not necessarily infringe upon one’s autonomy, or at least less significantly so. It basically assists people in accomplishing their own goals, unaffected (or less affected) by their biases and cognitive errors. In contrast, frustrating choices on the alleged basis of the agent’s “motivational irrationality” is a much more blatant assault on people’s autonomy, as it refers to ends and not merely to means.85 It should 84. See Dan W. Brock, Paternalism and Autonomy, 98 Ethics 550, 551 (1988); Regan, supra note 18, at 119; Robert N. Van Wyk, Children and Community: A Reply to Jonathan Schonsheck’s “Deconstructing Community Self-Paternalism,” 15 Law & Phil. 75, 77–78 (1996). 85. Raz, supra note 77, at 422–23; Beauchamp & Childress, supra note 15, at 187–88; Pope, supra note 58, at 333–67. Cf. Ronald Dworkin, Equality and the Good Life, in Sovereign Virtue: The Theory and Practice of Equality 237, 242–76 (2000). Distinguishing Dworkin does not object to volitional paternalism. 433 (1995). or. where she acts out of cognitive deficiency. merely set the participation in a pension plan as the default. The same rule may be enforced by different means. Apparently. Consider a person who is about to rush into a burning building. for that matter. that the very distinction between ends and means (or. . to encourage people to save for retirement. the paternalist may. For instance. the higher the threshold that has to be met to justify the rule. A rule concerning private and intimate aspects of one’s life is likely to entail a higher threshold than a rule that does not concern such aspects (possibly because the former involves the infringement of an additional constraint: the constraint against interfering in one’s privacy). than in the third case. on the whole it does not diminish her autonomy. only some of which meet the threshold. However. is sometimes blurred. at the other extreme. Paternalistically preventing this person from entering the building is much more justifiable in the first case. impose criminal sanctions on anybody who does not join a pension plan. Dworkin on Paternalism and Well-Being. 56 Rev. While such invalidation interferes with the agent’s freedom of contract. Pol. out of carelessness or adventurousness. Legal Stud. She may do so because she does not understand the risk involved. as even the agent herself may not be able to disentangle the cognitive and motivational causes of her action. the threshold that has to be met when permitting involuntary civil commitment is much higher than the one applicable when invalidating a freely made enslavement agreement. On Dworkin’s position. between volitional interests (having or achieving something a person wants) and critical interests (having or achieving those things that would make a person’s life better). 615 (1994).legal paternalism 341 be conceded. See also Childress. or in a heroic attempt to rescue people trapped inside. it may be very difficult to distinguish between the cases. at 124. between cognitive and motivational rationality).M. however. Thus. In the same vein. 16 Oxford J. where she is likely to get killed. where she acts out of deeply held moral conviction (the second case is somewhere in between). The size of the threshold may also reflect the degree to which the rule restricts one’s freedom. Liberalism and Paternalism: A Critique of Ronald Dworkin. Dworkin argues against state paternalism aimed at interfering with the critical interests people have and endorse. forcing people to avoid harms they presumably want to avoid anyway. see Christopher Wolfe. the harsher the sanctions used to ensure compliance with the paternalistic rule. T. at one extreme. supra note 9. Wilkinson. for example. The size of the threshold should also depend on the rule’s intrusiveness. Brennan. sometimes infringing upon one’s right for her own good calls for a lower threshold compared to the case in which a constraint is infringed in order to promote the interests of another person. because the agent is actually benefited on balance. our analysis reflected the judgment that different paternalistic regulations harm the agent’s autonomy to different extents by setting different additive thresholds for different paternalistic measures. Paternalism and Rights. 419 (1994). when the actor ignores the agent’s choice. See supra p. however. Samantha Brennan. It would require adding to the formula not only a multiplier threshold K ′. which would enable one to use the same threshold function to assess the permissibility of different paternalistic measures. 93–96. economics. and morality Arguably. depending on the extent to which each one of them curtails people’s autonomy. see Kagan. 88.. threshold functions often deviate from standard CBA not only in setting a threshold that the net benefit of the rule must meet 86. but also a notation for the adverse effect of the assessed regulation on the agent’s freedom. because it involves infringement of property (and possibly privacy) rights but not a direct infringement of the agent’s freedom. An alternative way to formalize this notion. the greater the expected net benefit of the regulation necessary to render it permissible. . at 86–90. a greater amount of good is necessary to justify the cumulative infringement of two constraints. 3.88 Such a function would mean that the more harmful a measure is to one’s autonomy and freedom. At times (for instance. an action simultaneously infringes the constraint against curtailing a person’s autonomy and other constraints. hardly a case of paternalistic intervention. See supra pp. or a combined—additive and multiplier— threshold. On this and related questions. A higher threshold should plausibly be set in truly paternalistic cases. J. Plausibly. Breaking into someone’s property to save it from damage (assuming it is impossible to get the owner’s consent on time) is more easily permitted than breaking into the same property to save someone else’s property from damage. when saving one’s life requires amputating her leg against her will). Relevant Types of Benefits and Costs As explained in chapter 4. supra note 17.87 Thus far. 24 Can. 97. Phil. 87. supra note 86. The last proposition assumes that cutting off a person’s leg to save her life constitutes harming her.e. is to opt for a multiplier. i.86 The former is.342 law. but one may argue that such a case involves no harm at all. J.94 89. Sounds of Silence for the Walkman Generation: Rock Concerts and Noise-Induced Hearing Loss. or alternatively to the expected loss from choosing X when Y is incorrectly chosen in the i-th case.. Small Benefits One may hold that respect for autonomy permits frustrating an agent’s choice only if the expected loss to her from incorrectly choosing Y (absent the rule) surpasses a certain threshold..92 Assuming that there is a correlation between the scope and importance of a transaction and the risks involved in making it hastily. 60 Archiv für Rechts.. 483 (1974). e. See. supra note 74. 94. 1026–27 (1993). 68 Ind. Rev. limiting the statute’s application to important and relatively large transactions may thus rest on the present conception. Murphy. 479.90 This requirement may apply to the expected loss from choosing X when Y is incorrectly chosen in the i-th case (that is adding a cumulative limitation.P. For a critique of this position. L. see generally Restatement (Second) of Contracts § 110.91 In practical terms. to meet this constraint.g. Jeffrie G. a central function of the statute of fraud is to paternalistically caution people against acting hastily. 799. L. 93. including the alienation of their real property. See supra pp. e. the applicability of a paternalistic rule may have to be confined to instances in which the expected loss from incorrectly choosing Y surpasses a certain threshold. 800 (1941).g. Childress. 41 Colum.und Sozialphilosophie 465.89 some or all of the following “excluders” may be incorporated into the threshold function (and others may be considered as well). see. For example. at 64. § 786 (2004)) (requiring court authorization for certain acts by guardians of minors and incapacitated persons. to function (2)). 86–93. 65. Fuller. the . Li > m. see Eric D. supra note 9. multiplied by the probability of such a choice (thus adding the limitation: PliLi > m). laws regarding the legal capacity of minors and the mentally disabled may impose varying restrictions on the validity of different transactions according to their potential adverse effect on the protected person’s well-being. On the statute’s scope of applicability. In support of this proposition. 1011. Consideration and Form. making of contracts requiring recording. 92.legal paternalism 343 to render it deontologically permissible but also in limiting the type of benefits and costs taken into account. 91. at 125. e.R.A. Lon L.g. see Hodson. Following the discussion in chapter 4. On the cautionary function of formal requirements. m. see. Johnson. 90. For the latter proposition. Incompetence and Paternalism. § 786 of the Civil Code of Puerto Rico (31 L.93 In a similar fashion. it may be required that in at least one instance. See supra pp. Pope. at 186–87. however. given a very high Fi and C. would still be taken into account. even if under most circumstances its expected harm is not serious. economics. Similarly. supra note 15.96 At the same time. The lesser harms. For example. see generally supra p. However. The Existential Constraint Instead of (or in addition to) excluding any expected loss from incorrectly choosing Y (Li) that is smaller than m. Indeed. sections 7. a risky activity may be prohibited if in at least one instance it may result in serious physical harm to the actor. 95. the argument that paternalism adversely affects the development of judgment skills may similarly be excluded in at least some contexts as too remote. and 47 of the Israeli Capacity and Guardianship Law. this conclusion depends on the values of the other variables (such as the subjective disutility experienced by the patient and the implementation costs of the rule). such effects were excluded from the original model. 20. 106 (1961–62)) (laying down comparable requirements). Chronologically Remote and Probabilistic Costs and Benefits A threshold function may plausibly exclude some chronologically remote or low-probability costs or benefits of the paternalistic rule. . and morality Even under the basic function (1). 332–35. 88.97 However. at 378–83. whereas under function (1).95 For example. respect for personal freedom may militate against prohibiting activities involving risks with a very low probability. For example. 97.S. one may wish to exclude any paternalistic intervention whose probability of success in preventing the loss or injury to the agent is too low. 96. to be efficient (B > 0). the loss Li would exceed a (higher) threshold h. 1962 (16 L. the deontological constraint—embodying the inherent value of freedom and autonomy—is independent of such other variables. On the existential constraint. while the exclusion from the original model rested on methodological grounds (the alienation of personal property the value of which exceeds one thousand dollars. supra note 58.344 law. the applicability of some paternalistic rules may have to be restricted to instances in which Li (or PliLi) exceeds a certain value. and the execution of lease contracts for a period longer than six years). involuntary civil commitment would be efficient only if the harm the patient might inflict upon herself is quite serious. Beauchamp & Childress.I. but not exclusively. plausibly depend on the type and scope of the paternalistic intervention. while forcing her to undergo the same procedure in order to prolong her life beyond her normal life expectancy may not. which also affects our moral intuitions. see generally supra pp. dissemination. If the regulator merely sets default rules that would enhance 98. . at 312–20. supra note 1. dissemination. involves not only the promotion of the good/elimination of the bad distinction. or alternatively as preventing the hardships facing uneducated people in societies where most people have at least high school education. 287–88. the original model equates losses with foregone gains and gains with foregone losses. mandatory elementary and high school education may be seen as paternalism aimed at promoting the career prospects of children and adolescents. Promoting the Good vs. however. Thus. their content and magnitude. The appropriateness of any of the above excluders. In contrast. The same ambiguity exists with regard to mandatory or semi-mandatory pension arrangements. 99. forcing a patient to undergo a medical procedure that would save her from premature death may be justifiable under certain circumstances.legal paternalism 345 difficulty of verifying and quantifying such remote and manipulable effects). supra note 58. however. with regard to children—paternalism aimed at promoting the good is considered permissible. and that in some contexts— particularly. Similarly. Kleinig. On the distinction between promoting the good and eliminating the bad in the context of deontological constraints. This example.98 For example. prohibiting the manufacturing. 91–93. It should be noted. Eliminating the Bad Following the prevailing economic convention.99 A threshold function may take this consideration into account by discounting or even disregarding the benefits of a paternalistic rule belonging to the latter type. but also the preventing/forcing distinction (discussed in supra note 10 and accompanying text). Pope. that the very distinction between promoting the good and eliminating the bad is often unclear. and use of dangerous food seems much more justifiable than compelling the manufacturing. there seems to be a prevalent notion that limiting people’s freedom for their own sake is much more justifiable when done to prevent loss and suffering than when it is done to ensure greater gains and enjoyment. and consumption of particularly healthy food. See also supra pp. within the deontological framework such exclusion may rest on the normative judgment that such remote and uncertain effects should not bear on the permissibility of paternalism. at 13–14. a moderate deontologist should compare each measure not only to inaction. it actually expands freedom of choice by enabling people to rationally consider the pros and cons of smoking and make an informed decision. one may try to reduce smoking hazards by providing people with information about those hazards. by restricting cigarette advertisement. we proposed threshold functions aimed at determining the permissibility of any paternalistic intervention examined on its own. varying in their effectiveness and their harm to people’s autonomy and freedom. by imposing “sin taxes” on tobacco products. there is often more than one way to protect individuals from loss or injury. The second and third measures lie somewhere in between these two extremes.346 law. and the exclusion of many types of expected benefits of the hospitalization. From a deontological perspective. As the practical obstacles to deviating from the default get higher. see sources cited in supra note 14. Arguably. however. For instance. free choice. or by imposing an absolute prohibition of smoking backed up by criminal sanctions. As we argued in other contexts.100 At the other extreme. 101. and their undermining effect on the very distinction between default and mandatory rules. and 222–23.101 in choosing among these measures (or between any combination thereof). 170. On various obstacles to deviations from default rules. economics. and the scope of benefits and costs taken into account may be unlimited. 155–56. and morality the agent’s welfare. such a constraint and such exclusion are justified irrespective of the subjective frustration experienced by the patient. but also to other courses of action that 100. The first measure does not infringe the constraint against curtailing people’s autonomy and freedom. it justifies the incorporation of an independent constraint (of the type Li > m. In real life. See supra pp. 149–50. Importantly. the necessary constraint should be minuscule because the harm to people’s autonomy is trivial. 4. forced hospitalization is a harsh form of paternalism. The last measure is the most disrespectful of people’s autonomy. this fact was likely to affect the frustration costs experienced by the hospitalized person. or PliLi > m). Fi. In function (1). leaving no room (or very little room) for independent. the constraint may be increased and the types of benefits considered in justifying it restricted correspondingly. . Marginal Net Benefit and Alternative Measures Thus far. we argued that the best way to grasp the dilemma and to satisfactorily resolve it in legal contexts is by integrating a deontological constraint against restricting people’s freedom into a welfarist cost-benefit analysis. supra note 58. supra note 15. Similarly. and the magnitude of this reduction under the current one. and reasoned analysis of paternalism. Beauchamp & Childress. and the belief that a sound justification for paternalism may disregard its effects on well-being. the inquiry is whether the more harmful infringement is justified given its marginal net benefit. presumably none of the less intrusive antismoking measures is as effective as a complete ban on smoking. or whose net benefit is large enough to render the infringement permissible. The comparison to an alternative should not be restricted to an assessment of whether the action under consideration is the least harmful among all possible infringements that are equally effective in thwarting the risk. Pope. including legal paternalism. the measure’s relevant benefit is only the difference between the expected reduction of smoking hazards if an alternative course of action is pursued. Such discussions miss the fundamental tension inherent in paternalism—between welfare and liberty. Thus. in comparison to the alternative. In the above example. Conclusion Many discussions of paternalism. focus either exclusively on welfare or exclusively on liberty. As demonstrated. In this chapter. 389–400. comprehensive. 102. Cf. the combination of threshold deontology with economic modeling techniques provides a framework for a balanced. Specifically. the relevant cost is only the added harm that the infringement inflicts on people’s autonomy.102 The comparison to alternative. • E. This qualification may well result in a change to the value of the threshold K. deontologically permissible courses of action may be formalized by redefining the relevant variables of the threshold function according to their marginal values.legal paternalism 347 either do not infringe any constraint. . and yet the marginal net benefit of adopting this measure may be too small to justify it. This analysis rejects both the notion that economic efficiency entails antipaternalism. at 186. The evaluation of an infringement must therefore include a comparison to less harmful alternatives that are less effective in protecting people. at 368–77. This page intentionally left blank . and family law. the first question to be asked is whether it infringes upon a 349 . Hopefully. such integration would contribute to bridging the increasing gulf between economic analysis and other approaches to law and legal theory. but also descriptively more valid. is normatively objectionable on various grounds. where deontological constraints loom large. such integration is compatible with. tort.Conclusion economic analysis of law. without significantly compromising its methodological rigor. the common measure of efficiency employed by legal economists. such as constitutional. Furthermore. Putting aside other contested aspects of standard CBA (such as its underlying theory of human welfare and its stance regarding welfare distribution). and of human behavior in general. Often. The proposed integration raises principled and methodological concerns but we believe that these concerns can all be suitably addressed. At the same time. deontologically constrained CBA holds that the legal system should strive to maximize social welfare subject to threshold constraints. We argued that integrating threshold constraints (and options) with CBA would overcome both deficiencies. This book focused on the consequentialist aspect of welfare economics. primarily on the lack of constraints on promoting the best outcomes. as we have demonstrated in the contexts of antidiscrimination laws and precontractual deception. it is less determinate and rigorous than standard CBA. but they are significant in market contexts as well. the more sophisticated versions of foundational consequentialism. Adding threshold constraints (and options) to economic analysis makes it not only normatively more acceptable. standard cost-benefit analysis (CBA). Moderate deontology is normatively more defensible and is more in accord with commonsense morality and existing legal doctrines. is a powerful analytical methodology. In evaluating an act (or a rule). and perhaps even mandated by. however. The advantages of constrained CBA are particularly conspicuous in the analysis of nonmarket spheres. criminal. and secondarily on the lack of options not to promote such outcomes. economics. and morality deontological constraint. namely choosing among alternatives that either do not infringe any constraint or produce enough net benefit to override the constraint. the threshold function only serves as a heuristic to highlight the pertinent moral factors and their interrelations. some effects of the infringing act may be excluded altogether and others may be discounted. primarily. that is. The pertinent threshold may or may not depend on the magnitude of the harm caused by the infringing act. This question should be answered through the construction and employment of a threshold function. explicit mathematical formalization with concrete numbers may be fruitful. that specific choices among the different possibilities have to be made and defended in any specific context. It may also be combined with the previous stage by constructing a threshold function that focuses on the marginal net benefit of a certain infringing act. and we must content ourselves instead with verbal formulations embodying moderate deontology. Based on normative judgments. the act does infringe a constraint. Depending on the variety of costs and benefits that are deemed relevant in calculating the net benefit and setting the threshold. a threshold function may face greater or lesser challenges of commensuration and quantification. whether it involves an active/ intentional infliction of harm. If. one often faces another task. In others. compared to acts infringing lesser constraints. The first part of the book presented our proposal in relatively general terms. This stage may require lexical ordering of different constraint infringements. one must ask whether the net benefit of such an infringement is great enough to justify the infringement. and the type of effects (costs and benefits) that are taken into account in calculating the net benefit.350 law. however. If the answer is in the negative. then one may proceed using standard CBA. A threshold function determines the amount of net social benefit that is required to render the infringement permissible (the threshold). however. . expressive and other concerns may militate against the use of mathematical functions. Having determined that a certain act is morally permissible because its net benefit is large enough to override the threshold constraint. It is clear. The second part of the book thus illustrated the deficiencies of standard economic analysis in several prominent legal issues and critiqued attempts to overcome these deficiencies within a purely consequentialist analytical framework. In some contexts. We indicated the major distinctions between different types of costs and benefits that should be considered when formulating threshold functions and proposed ways to formalize the shape and size of the threshold within such functions. We then described in some detail our alternative method. In yet other contexts. We sought to demonstrate that deontologically constrained CBA facilitates a better grasp of. . the first option seriously decreases the fertility and relevance of the analysis and the second blurs the real issues instead of clarifying them. and more fruitful grapple with. However. One may ignore this complexity or try to cope with it by manipulating other elements of the analysis. Some of the illustrations included the construction of mathematical threshold functions. the relevant normative issues. and legal deliberation. It merely highlights the crucial factors that must be taken into account and elucidates their interrelations. policy. Deontologically constrained CBA is more complex than standard CBA. Integrating deontological constraints with CBA is a more rigorous and sophisticated solution. The proposed integration can by no means serve as a substitute for moral. but this normative complexity exists anyway.conclusion 351 integrating deontological constraints (and options) with CBA of those issues. This page intentionally left blank . 280n66. 240–46. effect on 235–37 long-term effects 235–40 market failures and 235–40 preferences and 237–40 racial discrimination 225. 228n7. 216. 53n46. 230–31. 16n17. 255n115. 274n46. 344. Jonathan 285 Adler. 320. 253–54 Civil Rights Act of 1964. 236n42. 229n11. 230. 246n84. 278–79. 187. 212. 250n100. 247–49 Arrow’s impossibility theorem 14 Autonomy (See also Paternalism. 204n119. 193n82. 252n105. Discrimination) 66. 245n79. 108n10 Agent-relativity (See also Deontology) 20. 55–56. 246. 225. 200. John M. 276n57. 239. 187n50. 248n90. 275–76. 228n7. 228–31 economic analysis 231–40 incentives. 31. 245n74. 253 conflicting constraints 229–30. 229n9. 229n9. 49n29. 190–94. 246–55 deontological constraints 240–44 doctrinal background 225–26. See Doing/allowing Actual preferences. 89n17.Index Act/omission. 237. 151– 60. Threshold deontology) 54–55 Aggressors (See also Self defense. 33n86. 228n7. 320. 228–31. 340. 275. 89n16. 225–56 autonomy 226–27. 344. 234. 236n42. Contract law) 20. 298–300. 249–50 accommodation 226. 340. Deontology. 262. 217. 102n54. 341. Culpability) 136–38. 239. 252n104. 346–47 torture 163–64 353 . 252n105. 281n70 Americans with Disabilities Act of 1990. 230–31. 53n47. 226–27. 248n92. 179n4. 241–42. 249–50. 59–63. 167–68. 59n6. 212. 253–54 Antidiscrimination laws (See also Affirmative action.. 236n40. 28n66. 240–46. 113n25. 216. 218–22 paternalism 313–17. 246. Discrimination) 228–29 Aggregation of harms (See also Taurek. 235–37. 57–59. 163. 171–74 Alexander. 202–06. 335–39. 141–45. Title VII 225–26. 41–43. 67n36. 244–46 constrained cost-benefit analysis 251–55 disparate impact 228–31. 251–53 redistribution 246–51. 204n118. 305–06 discrimination 240–46 free speech 187. 279n62. 245n74. 172–74. 197n94. 114n27. 230. Matthew 2–3. 246n83. 305–06. 335–39. 248n90. See Theory of the good Adler. 251–55 Americans with Disabilities Act of 1990 225. 190. 298–300. 229n8. 94n33. 28n67. 200. 313–17. 252n105. 181n14. 289–91 Affirmative action (See also Antidiscrimination laws. 104. 49. 236n40. 36–37. 190–94. 236n40. 278–79. 255 statistical discrimination 234. 71. 346–47 contract law 260–62. 341. 249n95. 214n152. 107n8. 164–65. Larry 20n34. 246–48. 218–22. 41. 202–06. 78n64. 77–78. 180. 335–47 conflicting constraints 81. 113–14. 263–67. 201. 137. 215. 100. Threshold deontology. 17n24. 200. 329–31 public morality 57–78 rule-consequentialism 24–27. 317n14. 320–21 long-term and indirect effects 22–24. 131–32. 48. 33–36. 252n105. 193. 224. 200n103. 207–08. 171. 236n40. 131–32. 189. 342n86. 325–32. 188–89. Threshold functions) 19–33. 329–31 “Consequentialist vacuum cleaner” 31. 246n84. 91–92. 97n41. 104. See Cost-benefit analysis Civil Rights Act of 1964. 90–92. 242–44 deception. 106. 90. 246n83. 240–51 . 238–40. 320–21 theory of the good 30–32. 94n33. 317n14. 239. 237. 135–39. 131. 200. 229n11. 95n36. 193. 56. 259. 99. prohibition on 157–60. 152. 230. 87n11. 320–21 “consequentialist vacuum cleaner” 31 feelings of virtue and remorse 29–30. 262–67. 286. 196–201. 151–52. 219. 207. 29n70. 49. 237. 289–301 collective. Options. 167–68. 48n24. 331–32 rule-consequentialism 24–27. 240–51. 237. 48. Public morality) 1–4. 110. 104. 325–32. 198. 201. 46n21. 107. 228n7. 90. 26n57. 211. 189–91. 17n24. 189n61. 30. Samantha 21n40. 298–310. 12.354 index Balance of Interests 127–28. 188–89. 95. 232–37. 328 “preferences for constraints” 27–29. 229n8. 245n74. 207–08. 37–38. 130–36. 274–77 discrimination. 152. 340 Brandenburg v. 213. 130–34. 271. Title VII 225–26. United States 131. See Bounded Rationality. Ohio 183. 214–16 Becker. 239–40. 88. 41–56. 252n104. 194. 60–70. 151–52. 179. 334. 260–61. 189n61. 131. 253 Cognitive psychology 16. 205–08. 229n9 Constraints (See also Deontology. civilians (See also Terrorism) 157–60. 274–91. 203–04. 213. 237. 48. 110. 340 Combatants vs. 163. 238–40. 33–40. 117. 177–84. 319–20. 171–75 Commodification 111 Commonsense morality 2. 76. 196–98. Rationality) 15–16. 319–20. rule-consequentialism 37–38 extremism 35–36 long-term and indirect effects 34–35. 97n42. 57–78. 324n34 Behavioral law and economics. 235–37. 342n87 Canadian Charter of Rights and Freedoms 150n89. 203–04. 106. 97n41. 81. 215. 240. 184 CBA. 200n103. 43n8. 313–14. 24. 194. 117 “preferences for options” 36 satisficing 38–39 theories of the good 36–37 lack-of-constraints critique 19–33. 131–34. 163. prohibition on 192. 214–15. 110n14. 238–40. 250–51. 189–95. 110n14. 274. 337. 262–67. 62–63. 193–95. 349 Consequentialism (See also Deontology. 84. 62–63. 107. 36–37 Constitution. 23. 215. 237. Gary 231–33. 188. 185–86. 117. 334. 318–27 definitions 18 demandingness objection 20–21. 194. 18–40. 309. 196–98. 188 Brennan. 216. Cognitive psychology Bounded rationality (See also Cognitive psychology. 76. 309. 237–38 ideal preferences 30–32. 47. 73–74. 299–300. 299. 30–32. 263. 301–10 liquidated damages 301–03 mistake and misrepresentation 267–91 doctrinal background. 298–310 disclosure duties 267–74. 98. 262–67. 339–42 Contingent valuation methods (CV/CVM) 28 Contract law (See also Deception. 242–44. 291 multiple/cumulative 97. 166–68. 152–53. 114–15. 62. 192. 274–88. 286. 203–04. 102. 306–08. 264. 192. 274–77. 79–108. 275–77. 269. 93–94. 105–06. Promises) 114–15. 102. 286. 262. 283–86 spontaneous 283–86 deontological constraints 260–61. 164–65. 101n50. 95. 238–40. 278–80 intentionality 281–83 lying 42. 50–51. 237. 27. 289–91 disgorgement 293. 260. 150– 61. 308 will theory 260–64. 203–04. 192. 298–301. 161–63. 317. 278. 129–34. 239–40. 258. 255 “preferences for constraints” 27–29. 298–301 doctrinal background 292–94 economic analysis 294–97 restitution 262. 192–93 Convention on the Prevention and Punishment of the Crime of Genocide 200–01 Cost-benefit analysis (See also Economic analysis. 184–87. 341. Normative economics) 2–5. 102. 278. 310 deception 267–91 doctrinal background 267–69 economic analysis 269–74 questions. 35–37. 298–301. prohibition on 42. 275. 267–69 economic analysis 269–74 reservation value 280–81 constrained cost-benefit analysis 277–91 nondisclosure 267–74. 289–91 precontractual liability 258. 26. 15–18. 117. 310n151 reliance interest 259–63. 213–22. 310 remedies for breach of contract 262–63. 274–77 doctrinal background 267–69 economic analysis 269–74 harmless 102. 83. 52. 83. 262. 46. 292–93. 95. 298 Contractarianism 48. 274–88. 171–74. 192. 257–311. 117. 52. 131. 278. 262. 260–61. 101n50. 46. 102. by 268. 59n7. 295. 108–16 size of threshold 59. 335–47 lying. 262. 331–32 quantification and monetization 28. 270n33. 171–74 Deception (See also Contract law) 42. 343 allocation of risks. 269–74. 95. 215. 169–75. 73–74. 207. 294–97 efficient breach 95n35. 73–74. 83. 279. 46. 122–23. 332–35 normative neutrality 105–08 theory of the good 15–18. 101n50. 167–68. 135–38. 267–91 deontology 42. 117. 286–87. 240–44. 280–81. 83. 161. 93–96. 141–45. 303–05. 95. 52. 274–91. 251–55. 305–10. 267–74 promises 260–62. 46. 321–25 Culpability (See also Self defense) 19. 260. 203–04. 292–310 constrained cost-benefit analysis 301–10 deontological constraints 261. 285. 301. 165. 303–04. 116–17. 39–40. 27. 60–63. 73–74. 308 economic analysis 258–59. 117. 264–67. 136–38. 293. 111–16. 266–67.index harming people 19–33. 305–06. 260. 342 options and 47. 308n144. 294–98 expectation interest 292–97. 151–60. 280–81. 29–32. 189n61. 201. 101n50. 52. 194. 260. 203–04. in response to 283–86 silence. 291 355 . 42–46. 83–84. 274–77 doing/allowing 21. 33n86. 246–51. 102. 338 Deontology (See also Autonomy. 101n50. 289–91 “paradox of deontology” 49–50 promise 20. 130. 289–91. 29. 57. 278–79 Disclosure duties. 136–37. 130. 130–34. 140–43. in response to 283–86 reservation value 280–81 silence. 172–74. Constraints. 52. 147–48. 47. 73. 222. 59. 19–21. 147–48. 350 low-probability costs and benefits 89–91. 55. 83. 214. 145. 77. 60–63. 274–88. 82–83. 134. 243–44 exclusion of costs and benefits 47. 167. by 268. 59–63. 46–47. 132. 208. 242. 52. Threshold deontology) 1–4. 190–94. 266–67. 283–86 spontaneous 283–86 Democracy 62–63. 41–78. 172–74. 310n151 public morality 57–78 threshold deontology 2. 344–45 existential constraint 88. 150 deception 42. 76. 264. 335–48 absolutist 46. 57–59. 100. 66–67. 187. 46. 251–55. 275. 73–74. 85–93. 274–77. 199–201. 141–44. 104. 182–86. 53. 57. 243–44. 117. 344 lexical priority 47. 152. 114–15. 73. 17–19. See Contract law Distributive justice (See also Redistribution) 13–14. 41–42.356 index Deception (Cont. 33–40. 289–91 critique of deontology 49–56. 25. 167. 339–47 Deterrence 22. 243–44 Doomed people 167. 202–06. 43. 316. 116. 255. 264–67. 116–18. 45–46. 31. 203. 102. 161–64. 195–96. 332 Doing/allowing 21. 50. 45–46. 345–46 small costs and benefits 87–88. 254–55. 208. 153. 254. eliminating the bad 47. 343–44 lying 42. Options. 161–66. 49–52. 331. 135. 95. 287–88. 132. 305–10. 170. 313. Deception Discrimination (See also Antidiscrimination laws) 66. 120. Intending/foreseeing. 210. 86–87. 46. Deception. 76. 282. 92. 147–49. 237–40. 121. 140–75. 46. 212. 101n50. 73. 140–45. 71. 46–56. 141–44. 276. 336–37 agent-relativity 20. 184. 73–74. 92. 73. 105. 188. 98. 190. 287. See Contract law.) questions. 147. 287. Doing/ allowing. 57. 117. 277–91. 264–67. 121. 260–62. 79–104. 41. 36–37. 94–97. 153. 199. 83. 240–51 economic analysis 231–40 contestable markets 232–33 equal respect in curtailing speech 192. 195–211. 344–45 promoting the good vs. 135–39. 116–17. 222–23. 43. 135. 203–04. 141–44. 287–88. 134. 216. 275. 161–66. 210–02. 296. 95. 60–63. 80–81. 305–06. 170–71 . 190. 274–75 intending/foreseeing and 45–46. 194. 195–224. 254. 51. 91–93. 134. 116–17. 52. 98–103. 309 Dignity 20. 167. 151–57. 148. 255. 41–42. 262. 226–27. 247–49 Disgorgement interest. 128–29. 210–11 chronologically-remote costs and benefits 89. 61. 153–56. 282. 25. 43. 150–51. 117. 214. 77. 192. 298–301. 308n144. 231–40 “rational” 233–34 statistical 234. 219 incitement to 182–84. 200. 104. 278. 41–43. 336–37. 196–200. 225–56 anti-terrorist measures and 157–60 constraint against 157–60. 148. 291 options 20. 68n38. 192. 100. 49. 102. 150. 275–77. 304n136. 201–02. 219–21. 205 motivation for 66. 260. 52. 342–46 combining excluders 147–49. 331. 50. See Cost-benefit analysis. 136–37. 202–04 offensiveness 206–10 persuasion principle 192–94. 218–21 choice among permissible courses of action 222–23 chronologically remote harms 182–83. 186n45. 214. Goldsmith 157n120 Eisenberg. Deontology) 26–27. 218–20 consequentialist justifications 189–91. 182–84. 116n32. 291n95. 198. Rational choice theory Edmond v. 190–91. 240–41. 202–04 pornography 178. See Normative economics. 169n158. 48. 182–84. 239n53. 297n114. 326 First amendment. 213–17 violence. See Freedom of speech Freedom of speech 66–67. 203. 189n59. 260n4. 266–67. 210–12. See Contract law Employment. 197–98. 334 Existential constraint (See also Threshold deontology. 170. Kaldor-Hicks efficiency. types of 152–53. 263n13. 301–10 Expressive role of law 53. Charles 52n43. 233n31. 203. Normative economics. 77. Positive economic analysis. 47. 222 commercial speech 179. 210–02. 185. 184–88 evaluative neutrality 187. 310n151 Factoral vs. 218–21 rational persuasion 192–94. 42. Discrimination Epstein. 202–04 political speech 218–19 “protected” vs. 306n140 Genocide. 218–21 First Amendment 67. 196–98. 205–07. 275n53. 97. 185–86. See Antidiscrimination Laws. 177–224 categories of speech 178–80. 203. 299n119. 71n47. 56. 207–08. 251. 222–23 Fried. 160. 182–87. 194. 77. 184 Good. 197. 190–91. 182–87. 180–87. 114. “unprotected” speech 178–80. 206. 213–15 content-neutral restrictions 66–67. 320n22 Fairness 17. 194. 182. 210–11. Melvin A. 27. 208 doctrinal background 178–84 economic analysis 133. 117–22. 194. 196–200. Richard A. 167. 235n35. 185–86. 284n76. 77. 138. See Theory of the good 357 . 139. 206–09. 307n143. 198–201. advocacy of (See also Freedom of speech) 200–01 German Constitutional Court 118. foundational moral theories (See also Consequentialism. 196–200. 238n49. 178–80. 200–01. advocacy of 200–01 hate speech 178–84. 218–21 small harms 201–02 “track one” and “track two” restrictions 66. 215–17 deontological justifications 187–95. 276n55. Threshold functions) 88. 245n80 Errors. 226. 280. incitement to 133. 191–95. 117. 180–81. 210–11. 186. 215. 273n41. 203. 237–40. 188. 218 constrained cost-benefit analysis 187–88. 219. 74. 49. 299n120. 276n54. 232n24. 199–201 “marketplace of ideas” 184. 276n58. 301–03. 195–224 content-based restrictions 66–67. theories of the. 306. 62. 183 genocide. 200–01 imminent lawless action 182–83. 213–15. 234n33. Pareto Efficient breach. 222 incitement to violence 133. 180–87. 309n148 Efficiency. 344 Expectation interest (See also Contract law) 292–97. 188. 196–200.index Economic analysis. 298. 183. 222–23 low-probability harms 195–96. 273n43. 205–07. 196–200. 299. 219. 50. 269n32. John M. See Intending/foreseeing Mental state. See Public morality Legal paternalism. 118–19. 180–81. 121. 50n36. 210n137. See Deception Marginal net benefit (See also Threshold functions) 149–50. Mark 229n9. 135–36. 101 McNaughton. See Constraints. See Theory of the good Mill. 197. 132n28. 261n8. See Theory of the good Ideal preferences. 63–70. Jr. 213–18 public morality 57. David 31 Means/side-effect. 102.358 index Greenawalt. 222–23. 50n37. 141–42. Intending/ foreseeing. 271. 158n127. 282n72 Israeli Supreme Court 118. Doing/allowing) 21. 77–78. 3n10. 141. Immanuel 48. See Aggregation of harms. 70. 147. 178–84. 161–62. 210n138. 289n91. 61n13. 170n160 Kant. 213–15. 350 Lies. Doing/allowing. 282n72. 96n40. 298 Kaplow. 80. 17–18. 193n80. 43n8. 189. 122n57. 253 Kraus. 265n20. 86–87. 241n57. 260n5. 215–17 means/side-effect 44–46. 331 Kagan. 174–75. Intending/foreseeing (See also Deontology. 337n76. Oliver Wendell. 155–56. 135–36 deception 281–83 doing/allowing and 45–46. 62. 103. morality 75. 263n13. 54n51. 27. 52. 243–44 antidiscrimination laws 243–44 anti-terrorist measures 67–68. 319n19. 174–75. 275–76. 96n39. 190. Threshold deontology. Jody S. 115 Innumerability argument. 63–70. 27. 245. Deontology. 137n44. 158n126. 298n117. 166–70. 308n144 Kronman. 266n22. 135–36. 78n65. 170. 35n92. 50–51. 207n125. 47n22. 287. 49n30. 98. 174–75 causality test 45. 189. See Freedom of speech Incommensurability 17. See Theory of the good Imminent lawless action. 278–79. 266n22 Human welfare. Harry 217 Kamm. 186 Incomparability 53. Threshold functions Harm principle 249n97. 213–18. 182. Kent 178n3. 277n59. 288n88 Judicial review 63–70. 201n108. 112–17. 336 Hate speech. 203. 315n4. See Paternalism Lexical priority (See also Deontology) 47. John 138 Low-probability harms. 25–27. See Threshold functions Lying. 316n11. 82–83. 135–36. 266n23. 272n39. 193n81. 166–70. 183n22. 194. 180–81. 149. 223. 106n3. 133. 187. 76. 63–70 trolley problem 44–46. 49n31. 346–47 Marginal utility 18. 44–46. 142. 219. 53n48. See Freedom of speech Holmes. 166–70. 174n171. 336–38 Mistake and misrepresentation. Anthony T. 16n17. 315n4. Shelly 19n32. 281–83 free speech 180–81. 26n57. John Stuart 190n63. See Deception Locke. 210n139 Harm. 260n3. 275n50. 295n105. 243–44. Taurek. 342n87 Kaldor-Hicks efficiency (See also Normative economics) 14–15. 247–48. 337n75. 286n82. 250. See Contract law. 112–13. 338n77 Law vs. Deception . 325n27 Kelman. 96n38. 57. 50. Louis 16n16. 300–04 Legislation. 92n26. 30n76. 110. 99n45. 148. 257 Kalven. 142–44. 89n19. 193n81. Frances Myrna 41n1. 194. 328n47. 117–22. 2n8. 316n9. 318. 344 choice among permissible courses of action 346–47 classifications 315–18 consent 337–38 consequentialism and 313–14. 28. 116n32. 340–41 redistribution and 316. 287–88. 53. 327. 263. Robert 32n83. 99–100 thresholds 53. 347 abuse of power 329–31 learning from mistakes 328–29. 345–46 rationality 314–15. 140–76. See Threshold deontology Monetization 15. 262–67. 251–54. 150 theory of the good 15–18. 195–224. See Threshold deontology. Threshold functions Normative Economics (See also Costbenefit analysis) 11–19. 277–91. 202. 105–06. 133. 319–22. 334 Persuasion principle. 122–23. 47. 111–16. 332 second-order preferences 321–22. 334. 30–32. 257. 59–63. 59n7. 331. 332. 215. 106. 98–103. 50–51. 343 indirect paternalism 316–17 injury from the frustrated choice 316. 129–34. Constraints. 255 disclosure duties and 289–91 maximal sacrifice 102–03. 238–40. 153n101 Objective-list theories of the good. 255 “preferences for options” 36 proximity 20. See Threshold functions “Negative utilitarianism” 47. 82. 42. Harm principle) 313–47 adaptive preferences 322–23 antipaternalism 317. 338 “libertarian paternalism” 316.index Moderate deontology. 132. 187–89. 344 type and magnitude of 316 information problems and 315. 37. 322–23. 262 Paternalism (See also Autonomy. 269–74. 344 probability of 316. 318. 344. 337. 27. 323–28. 344–45 efficiency and 313–14. 346 speech and 193 theory of the good and 319–25. 206–10 Omission bias 76 Omission/commission. 133. 262 normative neutrality 105–08. 184–89. 335 Multiplier threshold function. 318 Pareto efficiency 13. 27. 327–32. 318–27. 341. 323–35. 327. 39–40. See Freedom of speech 359 . 79–108. 319. 100. 346 incompetence 315. 321–25 Nozick. See Theory of the good Offensiveness (See also Freedom of speech) 183–86. 51. 305–10. 194. 31–32. 201. 346 intrusiveness of intervention 316. 43. 83–84. 257. 234–40. 345–46 Net benefit. 36–37. 339–47 Kaldor-Hicks efficiency 14–15. 17. 33–40. 257 liberty and 130–34. 327. 131. 335–47 economic analysis 313–14. 33–35. 60–63. 106. 189n61. 337–39. 346 default rules 316–17. 98. 77. 91–93. 93–94. 98–103 Pareto 13. 318–27 constrained cost-benefit analysis 335–47 types of costs and benefits 342–46 threshold size 339–42 criminal law 316–17. 41. 289–91 conferring a benefit smaller than the agent’s sacrifice 98–99 constraints and 47. Deontology. 329–35. 332–35 frustration costs 333–35. 341. 345–46 definition 313 deontology 313–14. Threshold deontology) 20. 50–51. 338 “sin taxes” 316–17. 294–97. 258–59. 42. 17–18. 108–16. 318–35. 46–47. 27. See Doing/ allowing Options (See also Consequentialism. 341 legal 315–17. 112n22. 235–36. judgments 27–29. See Public morality Probabilistic costs and benefits (See also Threshold functions) 89–91. 1n2. 260–62. 214 private/public distinction 58–59. Economic analysis) 11–12. 324–25. 130n13. 255. 266–67. 340n85 Redistribution (See also Distributive justice) 246–51. 36. 30. 110n16. 286. 39. 112n23. See Public morality Private/public distinction. 39. 327n44 Precontractual deception. 332. 274n48. 120n51. 316. 162. 118n38. 50n33 Rawls. 299n120 Raz. 147–48. 292–93. 16n18. 15–16. 143 Rachlinski. 131–32.360 index Pigou. 16n17. 295. 37–38. 332. Richard A. 122n57. 340–41 Rawling. 296. 258–59. 231–34. 15–16. 300n124. 231–34. See Public morality Positive economic analysis 11–12. 258–59. 47. 29. 207–08. 279. 293. 145 Risk allocation 258. 214n149. Cognitive psychology. 295. 251. 107n8. 95. 310 Risk aversion 91n22. 127–33. 100. 340–41 Rationality (See also Bounded rationality. 41–42. 23n42. 109–10. 334. 153–56. See Terrorism Preferences. 316. Arthur 12 Policy-making. 117–22 collective decision-making 57–59. 48n27. 253–54. 250. 310 Restitution interest (See also Contract law) 262. 287. Theory of the good Preferences vs. 318n16. 57–58. 31–32. 119n45. Joseph 31n78. 306–08. 323–27. 270n33. 258–59. 208n130. 184–89. 117–22. 258–59. 145 capital 76–77. 52. 151–52. 329n51. Jeffery 327–28. See Contract law. 109. 332. 39. 310n151 practice/convention theories 299–300 Public morality 57–78. 338n77. 73. 329 Rule-consequentialism (See also Consequentialism) 24–27. 332. See Consequentialism. 329–30 Security. See Terrorism Self defense (See also Culpability) 138–39. 157n120. 334. Deception Preemptive measures. 323–25. 150. 276. 214n50. 340–41 motivational 12. 305–06. 15–16. 41n1. 129. 162. 215n153. 344–45 Promises (See also Contract law) 20. 308 Retribution (See also Terrorism) 137–38. 213. 63–75. 217n159. 285. 200. 128–29. 94–97. 231–34. 179n4. 141–42. 340 cognitive 11–12. 163. 331–32 Reliance interest (See also Contract law) 259–63. 78n63. 237. 164 imminence of danger 153–56 forfeiture argument 136–39 . 303–04. 264. 329n53 Rational choice theory (See also Cognitive psychology) 11–12. 34. 308n144. 298–301. 196–98. John 14n8. 193. 28n66. 242. 63–70 legislation 53. 218n164. 301. 231–34 Posner. 3n9. 199–201. See Options Private morality. 46. 191. 63–78 doing/allowing 60–63 intending/foreseeing 57–58. 188–89. 2–3. Paternalism. 131–34. 331–32 Prerogatives. 31–32. 62n16. 207n127. 331–32 antidiscrimination laws 246–51. 196–97. Eric A. 151–57. 114–15. 102. 299. 290. 141–42. 214n151. 49. Piers 31. 15–16. 195–96. 304n137 Posner. 299–300. 62–63. 323–25. 304n137. 28n67. 31–32. 26n55. 255 contract law 296 paternalism and 316. 105. 303–05. 329n52. 180 Punishment 137–38. 299n119. 42n6. 117. 269. 48. 265n21. 254. Amartya 12n2. 194. 334 Threshold deontology (See also Constraints. 339–47 choice among permissible courses of action 81–83. 161–66 Theory of the good 12. 166–75 torture 141. 16n17. 215. 19. 105–06. 167–68. 166–70. 338–39 actual preferences 15–16. Deontology. 27. 15–19. 251–55. 51n40. 167. 30–32. 131. 101. 277–91. 141–42. 321–25. 189n61. 117–18. 15–16. 215. 194. 63n18. 215. 252n103. 330n58. 215. 59. 26n57. 164 side-effects of anti-terrorist measures 135–36. 150 arbitrariness 53. 155–56 combatants vs. 31–32. 19. 325n27 Siege (See also Terrorism) 144 Slippery slope 119–20. 238–40. 147. 143n66. civilians 157–60. 166–75 siege 144 shooting down an aircraft 118. 139. 189n61. 275. 320. 168 Intending/foreseeing 67–68. 121. 110. 158. 153–56 culpability 136–38. 275. 137. 16n15. 318–25 autonomy 131. 320 preferences 12. 24n49. 319 objective list 19. 201. Steven 16n16. 91. 213. 322n29. 166–75. 131–34. 132. 153–56. 305–10. 57n2. Threshold functions) 2. 24. 19. 253. 194. 150–51. 70. 97n43 Terrorism (See also Self defense. 130n13. 321–25 ideal preferences 16. 318n16. 141–45. 294n104. 151–57 retribution 137–38. 220n171. 144n71. 191n70. 132n28.index Sen. 107n8. 144n68. 222–23. 275. 27. 130–34. 50–51. 339–47 additive 84. Options. 145 self defense 138–39. 324n35 Shavell. 336–37. 31. 189n61. 170 targeted killing 135–61. 1n1. 195–224. 152. 262n11. 171–74 definition 128 deterrence 129. 135–36. 116–17.132n26. 17n25. 140–75. 157n122. 131. 164–65. 106n3. 170 economic analysis 129–34 Geneva Convention relative to the Protection of Civilian Persons in Time of War 134. 320–25. 78n65. 27–29. 129. 116–18. 330n59 Taurek. 263. 174–75 low-probability harms 147–48. 145. 320–21. 25. 95n35. 131. 21. 29. 238-40. 334 mental state 19. 46–56. 54–55. 30n76. 27. 149–61 pressure 143–44 probability of attack 147–48. 24. 27. 194. 339–42 361 . 141–43. 143. Torture) 127–76 choice among permissible courses of action 149–50. 171–75 chronologically-remote costs and benefits 147–48. 21. 150 disrespectfulness 52–53. 121 incoherence 52. 317n14. 79–104. 194. 24n47. 169. 151–60. 251–55. 79. 31–32. 60–62. 179n4. 334 “Consequentialist vacuum cleaner” 31. 93–96. 132. 263–67. 250 Speech. 324n33. 103–04. 136–37. 37n99. 105–06. 215. 21. 237–40. 151–57 nationality of victims 172–74 preemption 136–45. Cass R. 131. 201. 271n37. 330 Social welfare function (See also Normative economics) 13–14. 87. 238–40. 146. 275. Incommensurability. 155–56. 110. 322n28. 96. 201. 150 setting constraints too low 116–17 puzzles 55–56 Threshold functions (See also Threshold deontology) 79–123. 30–32. John M. 163. 195–221. 201. 346–47 critique 49–56. 321n25. 322n27. 296n109. 36n97. See Freedom of speech Sunstein. 106n3. 143–60. 149–50. 263. 31–32. 297n115. 36–37 cost-benefit analysis 15–18. 59n7. 76–77. 189n61. 36–37. 201. 203. 93–96. 287. compared to 162–64 legitimate purposes 141–45. 195–211. 119n46. 207n126. 210–12. 117–18. 214n151. 254-55. 146. 152. 237–40. 151–57. 153–56. 59. 55–56. 98. 150–61. 210. 217n158. 222. 253. 344–45 existential constraint 88. 210–11 chronologically-remote costs and benefits 89. 131–34. 145–46. 169–71. 211–13. 169–75. 147–50. 188. 174–75. 101–02. 76–77. 77. 287–88. 151–57. 149–50. 342 size of threshold 59. 345–46 quantification and monetization of constraints 28. 343–44 marginal net benefit 83. 222. 196–200. 286–87. 161–66 act vs. 146. 147–50.362 index Threshold functions (cont. 344–45 promoting the good vs. 109. 143n66. 219n166 Trolley problem (See also Intending/ foreseeing) 44–46. 342 net benefit 86–93. 100. 155–56. 287 low-probability costs and benefits 89–91. 211–12 combined thresholds 84. 77. 83. 18–19. 145–46. 254. 344 lexical priority 47. 169. 100. 188. 211–12. 282n72 United Nations Covenant on Civil and Political Rights 182 Universalizability (See also Kant. 132. 346–47 multiplier 84–85. 149–50. 98. 201–02. 147–49. 98. 253. 165. 254. 223. 100. 203. 286–87. 120. 14–15. eliminating the bad 47. 86–87. Laurence H. 92–93. 155. 253. 66n26. 90–91. 147–48. 86–87. 155–56. 216n156. 93–96. 93–96. Threshold deontology. 194. 254–55. 96. 199–201. 287. 195–211. 162 . 342–46 object of analysis 80 options 59. 130–31. 251–55. 155. 194. 289–91 probabilistic costs and benefits 89–91. See Options. 346–47 chronologically-remote costs and benefits 89. 91–93. 91–93. 343–44 structure 84–86. 91. 254. eliminating the bad 47. 344–45 combining excluders 146. 116–17.) choice among permissible courses of action 81–83. 222–23. 345–46 small costs and benefits 87–88. 147–48. 344–45 promoting the good vs. 211n140. 116. 93–96. 129. 208. 88. 160–61. 96. 74. 101–03. 93–94. 286–87. 177n2. 95. 185–86. 213–22. 52. 140–45. 195–96. 108–16 shape of the threshold 84–86. 60–62. 141. 170. 201–02. 169–71. 148. 66n28. 150. 101–02. 98–103. 93–96. 212n142. 286–87. 211–12. 153–56. practice 166 definition 161–62 killing. 210. 101–02. 182–83. Adrian 57n2. 134 Tribe. 217n160. 287–88. 87. 174–75. 185–86. 85–93. 342–46 combining excluders 147–49. Immanuel) 48. 181. 143. 196–200. 147–48. 106n2 Vermeule. 82–83. 339–42 small costs and benefits 87–88. 83–84. 183n26. 195–96. Threshold functions Torture (See also Terrorism) 49. 182–83. 211–13. 66n32. 63n18. 164 Tradeoff 115. 174–75. 150 exclusion of costs and benefits 47. 97. 155. 222–23. 100. 342 terrorism 140–75 Threshold options. 147–48. 342 commodification 111 critique 105–23. 199– 201. 62. 254. 210–12. 62 Utilitarianism 12. 208. See Terrorism Welfare. 108–10. 108–10. 37 Well-being. 318 Zerbe. 113. 275.index War on terror. 21. 17. 238–39. Richard 27–29 363 . 113 Willingness to pay (WTP) 15. See Social welfare function. 16–17. 93. 93. Theory of the good Welfare economics. See Normative Economics Welfarism (See also Theory of the good) 12. Bernard 23 Willingness to accept (WTA) 17. See Theory of the good Williams. 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