Economics and Ethics

Rutgers Law Journal symposium on Amartya Sen's The Idea of Justice

Mark D. White

The latest issue of the Rutgers Law Journal (43/2, 2012) features a symposium on Amartya Sen's The Idea of Justice. As stated in the foreword by John Oberdiek:

The Rutgers Institute for Law and Philosophy, in conjunction with the Rutgers Law Journal, was honored to host a symposium on The Idea of Justice in May 2011 at the Rutgers School of Law–Camden. Sen’s intellectual acclaim, not to mention his well-known personability and grace, made it easy to attract a stellar roster of political philosophers from across the country: David Estlund from Brown, Samuel Freeman from Penn, Gerald Gaus from Arizona, Erin Kelly from Tufts, Henry Richardson from Georgetown, and Debra Satz from Stanford, all of whom, save for Estlund, have contributed an article to the present issue. Sen responded to each paper in turn at the conference, and we are delighted to be able to publish in this volume his full and considered written reply. This marks the first time a Nobel Laureate has been published in the Rutgers Law Journal.

The papers included in the symposium are:

Ideal Theory and the Justice of Institutions Vs. Comprehensive Outcomes, Samuel Freeman

Mapping Out Improvements in Justice: Comparing Vs. Aiming, Henry S. Richardson

Social Contract and Social Choice, Gerald Gaus

Amartya Sen's The Idea Of Justice: What Approach, Which Capabilities?, Debra Satz

Public Reason as a Collective Capability, Erin I. Kelly

A Reply, Amartya Sen

Supreme Court to pronounce on Defense of Marriage Act (DOMA) and California's Section 8

Mark D. White

Just announced: the Supreme Court will decide the constitutionality of the federal Defense of Marriage Act and California's Proposition 8. See the live blog at SCOTUSblog (or upcoming analysis soon, I'm sure) for more.

Needless to say, I'm thrilled about this, given a) my support of same-sex marriage and b) my firm position that the controversy over same-sex marriage should be settled by the courts (see earlier posts such as this one for more).

SCOTUSblog on the same-sex marriage issue

Mark D. White

Lyle Denniston at SCOTUSblog has begun a four-part series on the impending same-sex marriage controversy at the Supreme Court. From the introduction to his first post (discussing the role that constitutional standards will play in any such case):

This is the first article in a four-part series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage.   At its private Conference on Friday, the Court is scheduled to consider ten separate petitions seeking review of lower court decisions on that issue.  Eight of the petitions deal with the constitutionality of a 1996 federal law, the Defense of Marriage Act, as it applies to gays and lesbians who are already legally married under state law.  One petition deals with a similar state law adopted in 2009 in Arizona for state employees.  And the tenth involves the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriage in that state.  Today’s first article in the series deals with the choice of a constitutional “standard of review” — that is, the test to be used to judge the validity of any of these laws.  Later articles in the series will deal with the legal arguments for and against same-sex marriage, and with the options the Justices have as they consider the ten petitions.

(Thanks to Robert Loerzel and Felicia Yonter on Twitter from the link.)

Uganda and anti-gay law: This (again) is why you don't put basic human rights to a vote.

Mark D. White

My stomach turns at the news that Uganda is set to pass a law that imposes life sentences and sometimes the death sentence for homosexual acts:

KAMPALA, Uganda (AP) — Uganda's anti-gay bill will be passed before the end of 2012 despite international criticism of the draft legislation, the speaker of the country's parliament said Monday, insisting it is what most Ugandans want.

Speaker Rebecca Kadaga told The Associated Press that the bill, which originally mandated death for some gay acts, will become law this year.

Ugandans "are demanding it," she said, reiterating a promise she made before a meeting on Friday of anti-gay activists who spoke of "the serious threat" posed by homosexuals to Uganda's children. Some Christian clerics at the meeting in the Ugandan capital, Kampala, asked the speaker to pass the law as "a Christmas gift."

This is John Stuart Mill's tyranny of the majority at its ugliest: a majority of citizens using the machinery of government to negate the rights of the minority.

Many Americans rejoiced at the success of same-sex marriage referenda in last Tuesday's election, and certainly there was tremendous cause for celebration. But why should gays and lesbians have had to wait for a majority of the electorate to "come around" and "grant" same-sex couples the same access to civil marriage that straight people have? Before this election all same-sex marriage referenda were voted down--a far cry from what Uganda is doing, to be sure, but the spirit is the same, a majority deciding what rights a minority may have.

As I've argued several times on this blog (here and here, for instance), it is a poor validation of basic human rights to have the majority of the electorate vote for them (as encouraging as it may be in reflecting changing attitudes). Gays and lesbians shouldn't have to have their basic rights be "granted" to them by the electorate. They should be recognized as having existed all along by the only institution that can do that: the courts.

The court in Brown v. Board of Education didn't say that "now" segregation is wrong--it said it had always been wrong. The court in Loving v. Virginia didn't say that "now" laws against mixed-race marriage are wrong--it said they have always been wrong. And when the Supreme Court decides that same-sex couple should have the right to marry, they will not say that "now" same-sex couples have that right, but that they have always had that right--and it just took a while for the law to catch up. 

How Much Inequality Do We Want? This is the Wrong Question.

Mark D. White

Today on The Atlantic's website, Dan Ariely describes an experiment he conducted with Mike Norton in which they survey people about both the current distribution of wealth in the U.S. and what they thought the ideal distribution of wealth is. Not surprisingly, they find that most everybody underestimates the level of inequality of wealth, and that most everybody would prefer a more equal distribution of wealth--and, most interestingly that the "desired" distribution is extremely stable regardless of political party or nation of origin.*

In fact, he writes, "most likely, if you participated in one of our tests, your response too would have fallen in line with these findings." Uh, no, it wouldn't--I would have refused to answer the question because I don't accept its premise, which is that the final distribution of wealth is more important than the processes which led to it. In Robert Nozick's terms, Ariely implicitly uses a patterned theory of justice, whereas I prefer a historical theory of justice. When I see a skewed distribution of income or wealth, my first thought is not, "let's correct that," but rather "let's see what caused the skewed distribution and see if they're anything unjust about that."

Ariely illustrates this distinction with his two proposals for lessening inequality: education and taxation. Education improves the process while taxation improves the results after the fact. This is comparable to making sure a football game is officiated fairly, but then adjusting the score after the game is finished. If the outcomes of a football game--or of the economy--result from just and fair processes, then it is difficult to find a justification for questioning the results (outside simple utilitarianism).

Ariely describes his methodology as inspired by John Rawls' "veil of ignorance," in which people are asked what kind of world they'd like to live in if they had no idea where they'd fall in socio-economic terms (or, more broadly, in terms of race, gender, and so on). Ironically, however, Rawls was opposed to redistribution after the fact, and meant for his veil of ignorance metaphor to be used when designing institutions that would benefit the worst-off in society so wealth would not have to redistributed after the fact. (Ronald Dworkin's resource-egalitarianism takes the same approach: equalize resources at the beginning of persons' lives, and let them make of their lives what they will.)

My point does not lean only to the left or the right; people on both sides of the political spectrum (and especially libertarians) will happily point out injustices in the system that lead to unjust outcomes. This is one thing that the Occupy movement and the Tea Party have in common: there is corruption throghout the system that benefits the few at the expense of the many. But it does little good to say what we want the world to look at any point in time. Instead, we should focus on how we want to world to work over time--all the time--so everyone has a fair chance at leading the life they want to live.

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* They also neglect to ask what means people are willing to accept to reach their desired level of inequality--I imagine that's where differences in political affiliation would show up the most. Ariely admits to this shortcoming, but casts it in terms of what sacrifices people would be willing to make themselves to lower inequality, not what structural changes in our institutions they would recommend:

Our study also doesn't deal with how to bring what people say they want under the veil of ignorance into line with what they're willing to do when it's their money and resources that are about to be distributed. It is one thing to get people to tell us what kind of society the would want to join, and another to get them part with their money in order to create that society.

Is health or health care a public concern, a right, or a need?

Mark D. White

One of the topics that fascinates me, but which I never seem to have time to catch up on, is the moral/political status of health and health care. In most cases (other than particularly infectious or contagious diseases), I consider health and health care to be matters of personal choice and responsibility, but I'm eager to hear the arguments on the other side as well.

Two articles in the latest issue of The Journal of Law, Medicine & Ethics (40/2, Summer 2012), part of a symposium on pharmaceutical firms and the right to health, address this issue:

"Health as a Basic Human Need: Would This Be Enough?" by Thana Cristina de Campos

Although the value of health is universally agreed upon, its definition is not. Both the WHO and the UN define health in terms of well-being. They advocate a globally shared responsibility that all of us — states, international organizations, pharmaceutical corporations, civil society, and individuals — bear for the health (that is, the well-being) of the world's population. In this paper I argue that this current well-being conception of health is troublesome. Its problem resides precisely in the fact that the well-being conception of health, as an all-encompassing label, does not properly distinguish between the different realities of health and the different demands of justice, which arise in each case. In addressing responsibilities related to the right to health, we need to work with a more differentiated vocabulary, which can account for these different realities. A crucial distinction to bear in mind, for the purposes of moral deliberation and the crafting of political and legal institutions, is the difference between basic and non-basic health needs. This distinction is crucial because we have presumably more stringent obligations and rights in relation to human needs that are basic, as they justify stronger moral claims, than those grounded on non-basic human needs. It is important to keep this moral distinction in mind because many of the world's problems regarding the right to health relate to basic health needs. By conflating these needs with less essential ones, we risk confusing different types of moral claims and weakening the overall case for establishing duties regarding the right to health. There is, therefore, a practical need to reevaluate the current normative conception of health so that it distinguishes, within the broad scope of well-being, etween what is basic and what is not. My aim here is to shed light onto this distinction and to show the need for this differentiation. I do so, first, by providing, on the basis of David Miller's concept of basic needs, an account of basic health needs and, secondly, by mounting a defense of the basic needs approach to the right to health, arguing against James Griffin who opposes the basic needs approach.

"A Right to Health Care" by Pavlos Eleftheriadis

What does it mean to say that there is a right to health care? Health care is part of a cooperative project that organizes finite resources. How are these resources to be distributed? This essay discusses three rival theories. The first two, a utilitarian theory and an interst theory, are both instrumental, in that they collapse rights to good states of affairs. A third theory, offered by Thomas Pogge, locates the question within an institutional legal context and distinguishes between a right to health care that results in claimable duties and other dimensions of health policy that do not. Pogge's argument relies on a list of “basic needs,” which itself, however, relies on some kind of instrumental reasoning. The essay offers a reconstruction of Pogge's argument to bring it in line with a political conception of a right to health care. Health is a matter of equal liberty and equal citizenship, given our common human vulnerability. If we are to live as equal members in a political community, then our institutions need to create processes by which we are protected from the kinds of suffering that would make it impossible for us to live as equal members.

But what I most look forward to reading is What Makes Health Public?: A Critical Evaluation of Moral, Legal, and Political Claims in Public Health by John Coggon, whom I had the pleasure of meeting and listening to at the "Regulating Bodies and Influencing Health" symposium in Rotterdam in June.

John Coggon argues that the important question for analysts in the fields of public health law and ethics is 'what makes health public?' He offers a conceptual and analytic scrutiny of the salient issues raised by this question, outlines the concepts entailed in, or denoted by, the term 'public health' and argues why and how normative analyses in public health are inquiries in political theory. The arguments expose and explain the political claims inherent in key works in public health ethics. Coggon then develops and defends a particular understanding of political liberalism, describing its implications for critical study of public health policies and practices. Covering important works from legal, moral, and political theory, public health, public health law and ethics, and bioethics, this is a foundational text for scholars, practitioners and policy bodies interested in freedoms, rights and responsibilities relating to health.

Justice and Christian Leadership

Jonathan B. Wight

Bishop John Shelby Spong was in Richmond a few weeks ago, giving five daily lectures to packed audiences at St. Paul's Church, where he had been the rector from 1969-1976. They were fascinating talks about the origins and history of Christianity and the "new" Christianity emerging in the coming Reformation. According to Spong, Reformations come every 500 years or so. Each reformation attempts to rectify anomalies, injustices, and mistakes of the past.

I was moved to read Spong's autobiography, Here I Stand: My Struggle for a Christianity of Integrity, Love and Equality (2000). He's written, by my count, over twenty other books that have inflamed as well as educated, and sold perhaps a million copies around the word.

The "New Christianity" that Spong preaches attempts to bridge 21^st century science and religion. The New Christianity embraces evolution and other sciences, including those that develop the biological origins of sexual orientation. The New Christianity emphasizes the equality of all people, regardless of race, gender, sexual orientation, or religious affiliation. It is fundamentally a message about love, not judgment (see, Why Christianity Must Change or Die: A Bishop Speaks to Believers In Exile, 1999).

Spong's entrance to the priesthood was in North Carolina in the mid-1950s, where overt racism was rampant. The battles he went through are legion; I don't know how someone develops that stamina and tough skin, although it was surely needed given the harassment and death threats of the KKK.

By the late 1960s Spong was preaching in Lynchburg Virginia. A particularly vitriolic editorial writer named Carter Glass III, publisher of the Lynchburg News (and grandson of Sen. Carter Glass, who had helped create the Federal Reserve in 1913 as well as co-author the Glass-Steagall Act of 1933), was determined to fight the Supreme Court's desegregation ruling more than a decade after it had been delivered. When Spong asked what Glass's motivation was, it turned out Glass believed that integration was part of the international communist conspiracy to infiltrate educational systems and encourage the breakdown of law and order. This wasn't the last time paranoia and fear stood in the way of dialogue and progress.

After fighting for racial integration and reconciliation, Spong became involved with the ordination of women. From there, his was a slow, but inevitable rise to leadership in promoting the rights of gays in the Episcopal Church and beyond, especially after he left Richmond to become Bishop of Newark in 1976. Spong was the first bishop to ordain an openly gay priest (although many gay priests were in the Episcopal Church, operating under "don't ask, don't tell").

Spong's take on leadership is particularly interesting in this book. A leader is not someone who spouts pious ethical statements. A leader has to organize the political fights that are inevitable any time change is proposed. Churches, like other organizations, unfortunately get populated by people who want to win more than they want to search for truth. Spong notes:

The [Christian] creeds were more about power than they were about truth. That some came to be called "orthodox" and their version of Christianity designated "orthodoxy" was not necessarily a recognition of who was right, but a recognition of who had won. The primary purpose of the creeds was not to spell out the Christian faith, but to exclude competing groups and their competing versions of truth from the church's life (pp. 242-243).

Adam Smith would love this story about the attempted monopolization—for personal gain—of the victors. That is why Smith so adamantly insisted on religious competition—exactly the sort of competition that the early creeds attempted to snuff out in the third century C.E. But there is also a psychological element:

Something deeply destructive is unleashed in some threatened human beings when they cannot keep the world from changing and in the process diminishing their power. They inevitably seek to destroy what they can no longer control (p. 48).

That sounds to me a lot like what is happening politically today and of course in ages past. Spong's last big official act as bishop before he retired in 2000 was to engage the Lambeth Conference in 1998. This once-a-decade event brings together the Anglican Communion from around the world. Bible literalists, and those opposed to gay priests, had formed a plan to repudiate Spong's inclusiveness. To carry this out Spong was vilified to African priests as a racist. This is both ironic and deeply hurtful, given his decades of work against racism in America. Spong's sin was to speak clearly in saying that opposition to gays and women (which is very strong in the African church) was based on unscientific beliefs. Nevertheless, the conservative bishops won, and passed a resolution on "Human Sexuality" that allowed no safe place for gays. And since then, of course, there has been the break-away of congregations from the Virginia Episcopal Diocese to the conservative Convocation of Anglicans in North America, supported by the Anglican Church of Nigeria.

The Episcopal Church, which in 2004 appointed an openly gay regional bishop and in 2006 elected a woman as overall Presiding Bishop, has congregations that are dropping and aging. Spong's hope is that a new enlightened and enlivened church will be born out of these ashes. His final lesson for "real" leaders—as opposed to stand-in leaders who like to wear the fancy robes and hats and take on titles—is this:

… losing a battle in the cause of justice is never a loss... the most important issue in life is not winning; it is being faithful to your core values (p. 211).

But justice and equality have generally been winning in the long run. I'm sure of very few things in life, but one of them is that 50 years from now the opponents of gay priests and female bishops will be looked upon as bizarre relics, just the way we look today at segregated bathrooms from the 1950s. Let's move on.

New issue of Social Philosophy and Policy: New Essays in Political and Social Philosophy

Mark D. White

Always an essential read, the latest issue of Social Philosophy and Policy (29/1, January 2012) has the theme of "New Essays in Political and Social Philosophy," and features essays by some of biggest names in those fields (not to mention legal philosophy):

POLITICAL LIBERTY: WHO NEEDS IT?, Jason Brennan

STATE COERCION AND FORCE, Christopher W. Morris

DEMOCRATIC LEGITIMACY AND ECONOMIC LIBERTY, John Tomasi

WHO OWNS WHAT? SOME REFLECTIONS ON THE FOUNDATION OF POLITICAL PHILOSOPHY, Lloyd P. Gerson

HUMAN REPRODUCTIVE INTERESTS: PUZZLES AT THE PERIPHERY OF THE PROPERTY PARADIGM, Donald C. Hubin

WHY FREE TRADE IS REQUIRED BY JUSTICE, Fernando R. Tesón

STRUCTURAL EXPLOITATION, Matt Zwolinski

RESCUING JUSTICE FROM EQUALITY, Steven Wall

REINTERPRETING RAWLS'S THE LAW OF PEOPLES, Christopher Heath Wellman

RESPONSIBLE CHOICES, DESERT-BASED LEGAL INSTITUTIONS, AND THE CHALLENGES OF CONTEMPORARY NEUROSCIENCE, Michael S. Moore

GENOCIDE AND CRIMES AGAINST HUMANITY: DISPELLING THE CONCEPTUAL FOG, Andrew Altman

HARM AND THE VOLENTI PRINCIPLE, Gerald Dworkin

EDUCATION AND THE MODERN STATE, Anthony O'Hear

Call for papers: 14th World Congress in Social Economics, "Towards an Ethical Economy and Economics"

Mark D. White

From the Social Economics Blog:

ASSOCIATION for SOCIAL ECONOMICS
 
14th WORLD CONGRESS IN SOCIAL ECONOMICS
 
CALL FOR PAPERS
 
University of Glasgow, Glasgow, Scotland, UK, June 20-22, 2012
 
"Towards an Ethical Economy and Economics"

The on-going financial crisis continues to evolve from one centered on the Western financial system to sovereign debt crisis, particularly in the Euro-zone. This has brought into sharp relief the inadequacy of standard approaches that emphasise the economy as inherently stable and the incapacity of the current economic system to address its fundamental problems. The crisis has also raised a host of ethical issues revolving around the actions of governments, the financial sector, communities, individuals, and, indeed, the economics profession. The financial crisis has further revealed the reliance on conventional notions of growth to sustain mass consumption and as a vehicle for addressing recessionary pressures, largely ignoring concerns over environmental sustainability and increasing inequalities. Social economics, with its focus on the social values and relationships that drive the market-based system, is well-placed to offer insightful analyses of the present state of economies and of economics and to offer an outlet for discussion of alternatives founded on the notion of the economy as the process of social provisioning.

See here for more details...

Mont Pelerin in the Rear-View Mirror?

Jonathan B. Wight

David Warsh, in a column entitled, "Still an Overgoverned Society?" reports on the beginnings of the Occupy Wall Street movement and its connection with anarchists, and contrasts that with the rise of the Mont Pelerin society.

Anyone who appreciates long cycles of historical analysis will recognize that success eventually breeds over-stretching and hence an inevitable backlash. I've never studied Hegel, but the dialectic of thesis, anti-thesis and synthesis seems to be at work. For example, I remember being somewhat shocked when a Nobel Prize was created in economics (technically it's the Sweden's central bank's Prize in Economic Sciences in Memory of Alfred Nobel). In the powerful sway of Keynesian economics in the 1960s, it appeared that economists were glorified as the new physicists. How little they knew!

One group likely did know the Nobel was something of a sham, and this was the Mont Pelerin Society (even as several of their members won the prize). The hutzpah of economists claiming to know enough to do discretionary fine-tuning is now accepted as a fantasy, and led to the rise of the Austrians and other skeptics. But the Pelerin's own ideological excesses (or those of their followers) may lead to a similar backlash.

Here is David's conclusion:

Believing that societal norms move in long pulses, that a gradual turning has begun, I have to say I am still heartened by the excitement with which Occupy Wall Street has been received.  Its inner story is certainly a disappointment:  the tenets of "contemporary anarchy" are a weak foundation on which to build, but they express a powerful longing for a time in which the power of money will be reduced. Maybe it's a spiral instead of a zigzag; but the direction is slowly changing.  The road from Mont Pelerin is in the rear-view mirror. The next part of the journey has begun.

--David Warsh, www.economicprincipals.com (early edition, November 27, 2011, emphasis added)

The next part of that journey will not renounce markets, I believe, but will introduce pragmatism in establishing institutions that work with markets to achieve various goals of society. I interact each semester with excited, energetic future entrepreneurs: let's not kill that flame even as we seek to address issues of inequality and justice.