Ronald Dworkin

Ronald Dworkin's Justice for Hedgehogs (the perfect Christmas gift!)

Mark D. White

Hedgehogs At long last--especially considered it has already been celebrated by a symposium and an issue of a major law review--Ronald Dworkin's latest book Justice for Hedgehogs is out, and my copy (which arrived yesterday) is now sitting next to my computer.

As some readers of this blog may know, I am quite a fan of Dworkin's work, moreso of his legal philosophy than his political philosophy (which also makes me an oddity in those communities, as his egalitarianism seems to be more well regarded than his jurisprudence). But this book abstracts from those previous emphases, to focus instead on a theory of value that tires together equality, justice, law, truth, and dignity, to result in a theory (somewhat virtue-theoretic, at least in flavor) of what "living well" means.

If anyone learns of a reading group or other blogs discussing this book (besides the Boston University Law Review issue), please let me know. And if you've read the book, or are reading it now, please feel free to comment here on it!

Ronald Dworkin on the US midterm elections and voters' interests (in The New York Review of Books)

Mark D. White

In the December issue of The New York Review of Books, Ronald Dworkin discusses (alongside Mark Lilla, David Bromwich, and Jonathan Raban) the recent midterm elections in the U.S. that saw the Republican party reclaim the House of Representatives and shrink the Democratic Party's majority in the Senate. (The piece appeared earlier this month on the NYRBlog.) While I won't get into the politics of his essay, I want to address his introductory comments (emphasis mine), reminiscient in spirit of Thomas Frank's book What's the Matter with Kansas?:

The results of Tuesday’s election are savagely depressing, wholly expected, yet deeply puzzling. Why do so many Americans insist on voting against their own best interests? Why do they shout hatred for a health care plan that gives them better protection against calamity than they have ever had? Or stimulus spending that has prevented a bad economic climate from being much worse for them? Or tax proposals that lower their own taxes by raising taxes on people much richer than they will ever be? Why do they vote in such numbers for the party favored by the bankers and traders who brought on the economic catastrophe?

Putting aside the validity of Dworkin's assertions regarding the past and future effects of the policies of the previous two years, I'll answer the bolded question with a question (or two) of my own: Why do so many intellectuals assume to know what voters' best interests are? Why not, instead, give voters the benefit of the doubt and understand their electoral choices as reflecting their actual interests, which may in fact be more complex, subtle, and nuanced than the ones assumed for them?

Readers of my previous posts and published work on "libertarian paternalism" may recognize a familiar thread in this, as the idea of "nudges" similarly reflects a disregard for the actual interests of persons and substitutes outsiders' own judgments for them. But furthermore, entire classes of interests are often summarily dismissed--namely, noneconomic ones.

For instance, in the above passage Dworkin only mentions economic factors that he feels "should have" led voters to choose Democratic candidates over Republican ones. But even if voters agreed with the Deomcratic candidates (or party) on economic issues, they may have disagreed with them on the war in Afghanistan, same-sex marriage, abortion, gun control, or any number of issues that don't directly impact their pocketbooks, but which may nonetheless be of great importance to them.

Does Dworkin really want to look down on voters because they didn't hue to what (he assumes) to be in their narrow, economic self-interest? Is that what he (and similarly-minded people) would actually rather have voters do? Of course, many voters presumably disagreed that the policies of the last two years are actually in their economic interests, and arguments along those lines will continue into perpetuity, with reasonable people on both sides. But more broadly, I'd like to think that not all voters make their choices at the ballot box purely according to the effects of policies on their personal finances, and that some are willing to sacrifice some financial well-being to support policies that (whether I agree with them or not) they think are right for the country.

Justice Does (Unfortunately) Have a Price in a World of Scarcity

Mark D. White

Recently, it was reported that the state of Missouri started providing cost estimates of various punishments to judges during the sentencing phase of criminal trials. Of course, this set off a firestorm of controversy regarding the appropriate role (if any) that the financial cost of punishment—particularly imprisonment—does or should play in a judge’s decision-making. Those who follow the economic approach to law would see nothing untoward in this; to that way of thinking, monetary costs are just one element of the cost-benefit analysis that informs every legal decision, including optimal sentencing. If prison costs rise, then judges should impose imprisonment less often (or to a lesser degree), even though that may reduce deterrence and increase costs (by a lesser amount) elsewhere, as long as total welfare in society is maximized.

But those who hold to a more traditional view of justice may recoil at this reduction of legal decision-making to dollars and cents, especially in an area such as criminal law which relies on concepts like wrong, guilt, and desert, claiming instead that “justice has no price.” And I would agree that justice has no price—in an ideal world. In such a world, every criminal offender would be apprehended, all defendants would be tried in court before a jury, and every convicted criminal would receive his deserved punishment. What that person “deserves” is subject to debate, of course, but it would not be determined by “mere” monetary costs, but rather some version of retributive justice that demands punishment in proportion to one’s crime.

Alas, we do not live in an ideal world. Ours is a world of scarce resources, and has long been so; resource constraints did not emerge fresh with the current economic malaise. If society were to apprehend, prosecute, and punish every criminal offender according to the severity of his crime, we would have no resources remaining for education, national defense, or any other goals that people may feel government should pursue. As every introductory economic student learns on the first day of class, scarcity makes hard choices necessary, and the hardest ones occur when principles—such as justice—must be compromised.

Because of scarcity of resources, we must balance the principle of just punishment with the other principles and goals that society regard as important (and that we elect our representatives to promote). We can certainly prioritize these principles and goals, but we have to pursue them simultaneously, and somehow allocate our limited resources among them. Of course, people responsible for budgeting, from the smallest municipality to the entire country, face that problem every day. But even once such allocations are made, the problem does not end; rather, it is shifted to the next level of decision-making down the line, including to those responsible for making decisions in the criminal justice system. And among these decision-makers are judges, who must balance legal principles in their courtrooms every day, from seemingly minor evidentiary rulings to sentencing decisions of potentially life-shattering proportion.

But are costs—or consequences in general—an appropriate factor in balancing principles of justice? Consider the lone police officer who witnesses two persons in the process of a home invasion. Once they notice her, each suspect runs in a different direction. The officer knows both should be apprehended, since both are equally suspect of wrongdoing, but she can only catch one. Which one? Perhaps she recognizes one suspect from previous warrants, or she thinks he may be key to a larger ongoing investigation. Maybe the state would have a better case against one, or he may simply be slower and therefore easier to catch. Any way she chooses, a choice must be made, and if the two suspects are equally deserving of apprehension, then a focus on justice is not going to help make the decision—but consequences might. A prosecutor may make a similar decision with respect to two cases of equal merit in terms of justice, but one of which will be much more costly in terms of time, money, and resources. If considerations of justice do not make the choice clear, costs might.

Judges are no less immune to these tragic compromises than police officers and prosecutors. It does no good to ignore the fact that justice does have a price—in a world of scarcity, it must. Apprehension, prosecution, and punishment of criminals all take resources from other important needs and goals, so their costs do need to be considered, both externally (in comparison to other societal goals) as well as internally (within the criminal justice system itself). But ideally, costs will be a secondary consideration only, a way to help make tough decisions when balancing principles of justice, and not the primary concern.

(For more on balancing principles within criminal justice, see the earlier post here.)

Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice

Mark D. White

I recently posted a new paper to SSRN, "Pro Tanto Retributivism: Judgment and the Balance of Principles in Criminal Justice," forthcoming in my edited volume Retributivism: Essays on Theory and Policy (Oxford University Press):

In this chapter, I suggest a way that deontological retributivists can accommodate the compromises to the ideal of just punishment made necessary in the real world by scarce resources and competing societal needs and goals (a context also emphasized by Cahill and Markel in their chapters in this book). I consider recent work supporting consequentialist retributivism, in which trade-offs are allowed in order to maximize some measure of punishment or justice, but find the quantification of just punishment problematic due to the ideal or principled nature of justice inherent in the concept. Instead, I propose a practical, deontological retributivism in which the principle of just punishment is balanced with other principles and goals according to a concept of judgment drawn from the moral philosophy of Immanuel Kant and the jurisprudence of Ronald Dworkin. After outlining the resulting “pro tanto retributivism,” I compare it to other suggestions regarding how to balance competing interests within punishment, including Michael S. Moore’s “threshold retributivism,” and argue that my conception is both more flexible while adhering to a more deontological understanding of retributivism.

This is a philosophical companion of sorts to my chapter in Theoretical Foundations of Law and Economics, "Retributivism in a World of Scarcity" (pre-print draft available at SSRN here), which laid out the economic problems with a deontological retributivism that mandates just punishment of all criminals. The new paper suggests a way that deontologists can be comfortable with the compromises in just punishment that scarcity demands, drawing on a conception of balancing principles drawn from the thought of both Immanual Kant and Ronald Dworkin, an ongoing project of mine which is previewed here (as well as in my forthcoming Kantian Ethics and Economics: Autonomy, Dignity, and Character from Stanford).

Symposium on Dworkin's "Justice for Hedgehogs"

Mark D. White

The Boston University Law Review has released their issue (90/2, April 2010) collecting the papers presented at the symposium dedicated to Ronald Dworkin's upcoming book Justice for Hedgehogs that was held last fall. The line-up of scholars is very impressive, and includes Amartya Sen, Jeremy Waldron, Lawrence Solum, Robin West, C. Edwin Baker, just to name a few. Dworkin himself leads off and finishes the collection. (I may have to offer my Dworkin class again soon!)