Epstein's Takings (2)

Takings mostly sets out Epstein's alternative constitutional property rights doctrine, but it starts and ends with more philosophical musings. The worst part (unfortuantely) is right at the beginning. Epstein identifies what I would consider the least.persuasive.normative.principle ever.

Following Hobbes and Locke, he says the state is justified because -- without it -- we would be in a state of war-of-all-against-all. We're better off in a regime of civil peace. Nothing new there. Epstein gets original when he claims that the surplus caused by going from anarchy to order should be distribute proportionately to the holdings people would have under anarchy:

What can the state demand of the individual citizen whom it both governs and represents? The simplest way to present the problem is to draw two pies...

The first of these pies represents the situation in a world without effecitve government control. Each individual is endowed (according to the natural rights tradition) with certain individual rights. Yet the value of these rights in a state of nature is low because some individuals continually try to take that which by right belongs to others...

The larger pie indicates the gains that are possible from poltical orgainzation. The outer ring represents the total social gains, while the divided lines indicate the proportion of the gain received by each individual member. The implicit normative limit upon the use of political power is that it should preserve the relative entitlements among the members of the group, both in the formation of the social order and in its operation.

In other words if the ratio of the value of a person's entitlements under political organization to the value of their entitlements under a Hobbesian state of nature should be constant. The better off you would do in civil disorder, the better off you should do in a world with government.

There are multiple objections to this principle. It wouldn't be true of a libertarian night watchman state, since that kind of state would put a premium on entrepenurial talent, as opposed to the ability to use weaponry and motivate teenage thugs, which would be more useful in civil disorder. Not that this is an objection to the night watchman state -- the principle itself is just nuts.

If Epstein's book stayed this silly, it wouldn't be worth reviewing. But when Epstein turns to legal doctrine, he grabs ahold of a crucial difficulty with the post-New Deal understanding of property rights...

Are Metaethicists Lying About Their Own Unimportance?

In most realms of human endeavour, specialists are convinced of the importance of their subject. The broader public, on the other hand, is mindlessly indifferent.

A comment at Overcoming Bias reminds me that things are exactly the opposite in meta-ethics. This is the discipline that studies what we mean when we say something is right or wrong, whether there is any truth to such judgments and, if so, whether we can ever know what that truth is. Pope Benedict thinks it matters what your answers to these questions might be. Dostoevsky thought it mattered. Alfred Hitchcock's Rope is about a murder inspired by moral noncognitivism.

Metaethicists, on the other hand, will without exception tell you that it doesn't matter. Noncognitivists, error theorists and skeptics can all oppose torture and donate to Oxfam. Nothing turns on what they do for a living. As the comment says:

Most meta-ethicists tend to be rather impatient with people who think that if objectivism is false then everything is permitted, or morality is undermined, or relativism is true, and so forth. None of these things follow. Nor do any substantive consequences for the major disputes within normative ethics -- e.g. that between consequentialists and Kantians. The fact that someone is an expressivist or subjectivist or naturalist or fictionalist doesn't tell you anything about their substantive views.

But should we non-experts trust them on this? After all, they can't agree about whether morality consists of feelings or judgments -- how come they agree on this? Don't they have an interest in persuading the taxpaying student-spawning public to believe Hitchcock and Dostoevsky wrong? You're going to trust a self-proclaimed moral fictionalist to tell you the truth about the negative externalities associated with his industry?

The Consequences of Consequentialism

Over at Andy's, we've been discussing the dilemma of the "consequentialist" who thinks her moral views, while true, would create bad results if widely believed.

At the risk of sounding didactic, I'll back up and try to explain the jargon (especially since I might be misusing it). A consequentialist is someone who thinks that the only things that matter morally are the consequences of actions. The most familiar kind of consequentialism is utilitarianism, which evaluates those consequences on how they promote average or total happiness or preference satisfaction.

It is fairly well-established that humans do not, in fact, think about moral issues like consistent consequentialists. It matters to us whether harm was intentional, and whether it was the result of an act or omission, and whether the person who suffered it was the kind of person the actor owed loyalty to. Lies that cause no harm are still considered at least presumptively wrong. Most people think at least some kinds of consensual sex are morally problematic. Etc.

It isn't immediately obvious that this fact about our moral psychology is a problem for consequentialism. After all, our intuitive sense of astronomy conflicts with Copernicus and our intuitive sense of physics with Einstein. So it could just be that our "natural" assumptions about morality are wrong.

But what if this fact about our moral psychology means that we will actually do more harm if we try to reason as a consequentialist than we would if we used our common sense? In addition to the fact that we have moral intuitions, it is equally well-established that these are easily biased when our interests are involved. It might be that a non-intuitive consequentialist morality would be even more easily biased. Rationalizing "thou shalt not steal" may be harder than "thou shalt steal iff. the consequences of stealing on aggregate/average well being are greater than if one had not stolen."

One lesson from Hayek is that in conditions of radical uncertainty about other people's knowledge, rules-of-thumb may work better than a rationalism that implicitly assumes omniscience. Even some consequentialists seem to have thought that humans make bad consequentialist moral reasoners -- IIRC, both Stephens and Mill thought this. Robert Wright, in The Moral Animal, seems to conclude both that utilitarianism is right about the moral facts and that natural selection has provided us with a non-utilitarian moral sense and a strong ability to rationalize. He doesn't quite say that utilitarianism is bad for us, but I think it is implicit that it very well may be.

Personally, I am inclined to think that moral truth just is what normal humans would tend to converge on if they underwent both Rawlsian reflective equilibrium and a Habermasian ideal speech situation. If so, then I think thorough-going consequentialism is false. But I can respect the dilemma of a consequentialist who has thought through the implications of moral psychology. She'd have to conclude that we just can't handle the truth.