It might be best to set forth some of the core issues concerning legal punishment before discussing the most important elements of Michael Louis Corrado’s Presumed Dangerous: Punishment, Responsibility, and Preventive Detention in American Jurisprudence. Criminal justice in the United States is problematic in so many significant respects today that reform can seem almost beyond reach. Given the complexity and the interconnectedness of many of the issues, it is even difficult to know how to set priorities. The issues include over-criminalization and the piling-on of multiple charges, an issue related to dubious plea-bargains arising and dubious exercises of prosecutorial discretion. There…
Deirdre McCloskey has a post entitled Factual Free Market Fairness, which has received a great deal of attention and praise, including the claim by more than one person that it is the greatest blog post ever written! McCloskey’s specific point is that the story told by philosophers who defend what she calls “high liberalism” (and what I would call modern welfare liberalism) rests on a factual mistake.
The master narrative of High Liberalism is mistaken factually. Externalities do not imply that a government can do better. Publicity does better than inspectors in restraining the alleged desire of businesspeople to poison their customers. Efficiency is not the chief merit of a market economy: innovation is. Rules arose in merchant courts and Quaker fixed prices long before governments started enforcing them.
I know such replies will be met with indignation. But think it possible you may be mistaken, and that merely because an historical or economic premise is embedded in front page stories in the New York Times does not make them sound as social science. It seems to me that a political philosophy based on fairy tales about what happened in history or what humans are like is going to be less than useless. It is going to be mischievous.
How do I know that my narrative is better than yours? The experiments of the 20th century told me so. It would have been hard to know the wisdom of Friedrich Hayek or Milton Friedman or Matt Ridley or Deirdre McCloskey in August of 1914, before the experiments in large government were well begun. But anyone who after the 20th century still thinks that thoroughgoing socialism, nationalism, imperialism, mobilization, central planning, regulation, zoning, price controls, tax policy, labor unions, business cartels, government spending, intrusive policing, adventurism in foreign policy, faith in entangling religion and politics, or most of the other thoroughgoing 19th-century proposals for governmental action are still neat, harmless ideas for improving our lives is not paying attention.
The post then goes on to discuss many more examples of how government has worked poorly and that the true method for improving people’s lives is through markets.
This is music to my ears in several octaves.
First, and most importantly, it is based on factual claims like this that I root my consequentialist justification for a moderate libertarianism. Markets work better than government, and government has an important, but limited role to play. The argument against consequentialism – that it will assign to government excessive power – is wrong on the facts.
In my last post, I offered some responses to James Bruce's critique of my consequentialist libertarianism. Now, I complete my response. 4. Consequentialism and Constitutional Rules: Next consider political institutions and constitutional rules. At the political level, this approach suggests that we should employ rules that are designed to produce good results. That will, of course, mean laws and institutions that protect and promote liberty, but it may have certain limited departures such as the possibility of welfare for the poor. But while the laws and institutions should ultimately be justified based on human welfare, that does not mean, as I…
Last week, James Bruce wrote a critique of several of my posts that argue for a consequentialist approach to Bleeding Heart Libertarianism. In my view, welfare consequentialism – a more refined version of utilitarianism – provides the best case for the moderate libertarianism I embrace and justifies a special focus on the interests of the poor (based on the diminishing marginal utility of money). In this and a second post, I will respond to Bruce’s main criticisms. 1. Consequentialism and the Argument against Statism: Bruce argues that a consequentialist justification for my libertarian/antistatist position does not work because it does not…
Over at our sister site, EconLog, the bloggers are discussing Bleeding Heart Libertarianism. Caplan notes with approval David Friedman’s criticism that the BHLs have not made clear the weight which they attach to the interests of the poor. Caplan wonders whether BHLs are claiming for the poor “anything stronger than a utilitarian would accept?” Caplan, however, does recognize that BHL “deserve credit for pointing out the many neglected ways that government hurts the truly poor.” These two points by Caplan give me greater confidence in my consequentialist version of BHL. I actually don’t like the term “social justice.” And I find…
In my prior posts, I explained how I have always been a Bleeding Heart Libertarian who is concerned about the effects of liberty on the poor and how I now base my political views on a utilitarian approach. Under that approach, the diminishing marginal utility of money is one strong reason for considering social programs for the poor but there are a variety of other reasons, such as incentive effects, the crowding out of charity, and public choice failures, for rejecting such programs. In my last post, I want to consider in more concrete terms where I think these principles…
In my last post on Bleeding Heart Libertarianism, I described how I have always been a Bleeding Heart type of Libertarian. Today, I want to describe where I am now on this issue.
Somewhere along the line – I think it was in the early 1980s – I became convinced of a type of utilitarianism, namely welfare consequentialism. I had been a Nozickian libertarian but became persuaded of consequentialism. Much of the responsibility, I believe, must be assigned to Richard Epstein and Friedrich Hayek (even though Hayek claimed not to be a utilitarian). It was easy, as a libertarian, to become a welfare consequentialist. If libertarian institutions have the good effects that libertarians believe they do, then welfare consequentialism provides a strong basis for libertarianism.
Moreover, the weakness of the deontological cases for libertarianism – that they rely on intuitions about the primacy of certain rights that most people do not share – can now be avoided. Libertarianism can now be justified on the basis of its consequences for the welfare of people. These claims are largely factual claims (albeit difficult factual claims to establish). Further, the counterarguments made about utilitarianism – that it requires people to do unjust things, like hanging an innocent man – also can be avoided. Under the two level theory of utilitarianism developed by R. M. Hare, these counterarguments turn out to be mistaken, because such actions will not, in the real world, be welfare enhancing.
I recognize that most libertarians eschew a (strictly) consequentialist approach to normative matters. But I suppose that is just another way that I differ from the dominant libertarian approach.
So how, then, does welfare consequentialism address the issues central to Bleeding Heart Libertarianism? In particular, how should government institutions address the special needs of the poor under welfare consequentialism?
This is a complicated matter, but some points can be made. The diminishing marginal utility of money provides a strong reason why the needs of the poor should be given strong consideration. The benefits from spending on the poor are likely, other things being equal, to be greater than the benefits from spending on other people.