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Abstract:
The prisoners' dilemma game stands as a seminal case of the conflict between individual and collective rationality. Some scholars have suggested that Kantian duty-based ethics can prevent the suboptimal outcomes associated with the game. I argue that this claim is too strong, because Kant's moral theory does not entail specific duties requiring cooperation in prisoners' dilemma games. I support this argument in terms of Kant's categorical imperative, and also with reference to his distinction between perfect and imperfect duties.

prisoners' dilemma, game theory, ethics, Immanuel Kant

Abstract:
In this essay, I explore the parallels between the two perspectives Smith takes in The Wealth of Nations and The Theory of Moral Sentiments, and two types of duties described in the moral philosophy of Immanuel Kant.

Many people who familiar with Kantian ethics know chiefly of the perfect duties which rule out immoral behavior absolutely, and draw the conclusion that his is a formal, demanding, and cold ethical system. The same things have been said about Smith's description of the operation of the market economy and the invisible hand in The Wealth of Nations. While Smith did say that the market economy could operate if all agents were motivated by pure self-interest, that would only be a minimally satisfactory social order, just as if all people followed only Kant's perfect duties. Society would function, to be sure, but no one want to be a part of it.

But Kant's imperfect duties mandate that persons adopt certain attitudes toward others - such as helping others when we can - and act in accordance with those attitudes whenever possible. A person who follows Kant's perfect and imperfect duties is therefore not simply abstaining from harming others, but rather he is actively helping them, and thereby contributing to a truly harmonious society in a positive way. I see this as a direct parallel to Smith's discussion of benevolence in The Theory of Moral Sentiments, which is also neglected by those with think of Smith only as the father of economics and a proponent of laissez-faire principles. While Smith held that the economy can function based on self-interest alone, he felt that sympathy for one's fellow human beings, and the benevolent feelings generated thereby, are necessary for society in the broader sense to prosper - in much the same way as Kant's imperfect duties.

Adam Smith, Immanuel Kant, ethics, market, society, Adam Smith problem, duty, kingdom of ends

Abstract:
In this note, I respond to a recent article by Irene van Staveren (2007), in which she presents a case for virtue ethics, rather than deontology or consequentialism, as the most appropriate ethical foundation for ethics. Rather than taking issue with her positive arguments for virtue ethics, I argue in defense of deontology - or, more specifically, the moral philosophy of Immanuel Kant. I argue that, when properly understood, Kantian ethics should not be associated solely with formal rules and obligation, but that Kant's moral system can accommodate many of the concerns of virtue ethics, such as social relations, real-world context, and human fallibility, as well as embodying a unique emphasis on human dignity and judgment.

Abstract:
In "Behavioral Law and Economics: The Assault on Consent, Will, and Dignity," Mark D. White uses the moral philosophy of Immanuel Kant to examine the intersection of economics, psychology, and law known as "behavioral law and economics." Scholars in this relatively new field claim that, because of various cognitive biases and failures, people often make choices that are not in their own interests. The policy implications of this are that public and private organizations, such as the state and employers, can and should design the presentation of options and default choices in order to "steer" people to the decision they would make, were they able to make choices in the absence of their cognitive biases and failures. Such policies are promoted under the name "libertarian paternalism," because choice is not blocked or co-opted, but simply "nudged." White argues that such manipulation of choice is impossible to conduct in people's true interests, and any other goal pursed by policymakers substitutes their own ends, however benevolent they may be, for people's true ends. Normatively, such manipulation should not be conducted because it fails to respect the dignity and autonomy of persons, what some hold to be the central idea in Kant's ethical system, and which serves to protect the individual from coercion, however subtle, from other persons or the state.

Abstract:
The economic analysis of criminal law focuses exclusively on deterrence as the justification and motivation for resource expenditures on apprehending, prosecuting, and punishing offenders. Based on this concept, legal economists derive conditions for optimal deterrence based on efficient allocation of scarce resources to the police, courts, and prisons. This approach is criticized by retributivists, who argue that offenders must be caught and punished as matter of justice and right, regardless of any expected welfare effects stemming from deterrence. But a purely retributivist system of justice is idealistic, demanding that whatever means necessary be taken to bring offenders to justice. In a world of scarcity, however, trade-offs must be made, which the deterrence-oriented economic approach realizes, but the retributivist denies. This chapter aims to address the following question: How can a positive retributivist system of punishment, that demands that the guilty be punished, be implemented in a world of scarcity? Assuming that not all guilty persons can be apprehended, prosecuted, and punished, sacrifices will have to be made-but where? I preview this discussion with a brief summary of the economic treatments of retributivism up to now, and also the prospects for basing penalties on "hybrid" theories of punishment that mix deterrence and retributivism. Then I turn to retributivist penalties for offenses and how they would compare to deterrent ones. Finally, I confront the difficult idea of how retributivism would work in the real world, the world of scarcity, and what sacrifices would be most acceptable to achieve this.

punishment, retributivism, scarcity, law and economics

Abstract:
Economics is often described as the science of choice, but the typical economic agent in fact has no choice - his decisions are made for him by his preferences and constraints. This may be sufficient for normative purposes, demonstrating how agents "should" make choices if they want to adhere to the economic conception of instrumental rationality and maximize their utility or degree of preference satisfaction. But it has little connection to how real persons make decisions, for we like to believe that, given all of the information at our disposal, we have true, free choice. We can make the "right" choice, or we can make the "wrong" one. We can let principles and commitments reign over our most intensely-felt preferences, sometimes choosing to endure great sacrifice for our beliefs, or we can succumb to our basest temptations, even ones that our judgment clearly counsels against.

To support such free choice, some would say that each of us has a will, a distinct faculty of choice that operates between judgment and action, and can either follow the dictates of one's best judgment or not. In this chapter I suggest a way to incorporate a meaningful conception of the will into the economic model of decision-making, relying on recent work by philosophers such as John Searle and R. Jay Wallace, who themselves question the standard models of choice in philosophy. I further develop a basic model that I introduced in several other papers that can help understand fallibility in choice, such as succumbing to temptation, as well as resisting it. I offer a descriptions of how one's character or strength of will changes as temptations are confronted (successfully or not). I compare my approach to others offered in the literature, and I conclude with suggestions for future applications of my basic framework.

choice, will, John Searrle, Immanuel Kant, character

Abstract:
This paper argues that the Pareto standard, by which policy changes are approved if they benefit at least one person and harms no one, is ethically questionable despite its nearly universal acceptance among economists and philosophers alike. As usually implemented, the Pareto standard bypasses actual consent, relying instead on hypothetical consent based on imputed measures of preferences or well-being. By so circumventing actual choice, the Pareto standard violates the respect for the dignity of autonomous agents, as emphasized by Immanuel Kant. If actual consent is obtained, however, the independent relevance of the Pareto standard is endangered.

Pareto improvement, preferences, consent, dignity, Immanuel Kant

Abstract:
The economic approach to law, otherwise known as "law and economics," is by many measures the most successful instance of economic imperialism, the application of economic principles to an "outside" field. However, law and economics is very closely tied to traditional, neoclassical economics, both in terms of its consequentialist standard of efficiency, embodied (variously) in Pareto optimality and Kaldor-Hicks efficiency, and its utility-maximizing economic agent, his choices completely determined by his preferences and constraints. But most social economists take issue with these foundational concepts, both of which reflect a basic ignorance of, or negligence to consider, the humanity and dignity of the persons economists purport to be modeling. This leads neoclassical economists to consider well-being to be just the sum of utilities, with no regard for how those utilities were obtained or their distribution, and to treat the individual as just a cog in the legal machine to be manipulated by policy as a means to furthering the end of efficiency.

In the first section of this chapter, I introduce the brief social economics literature discussing law and economics. In the second section, I outline several key issues of interest to social economists regarding law and economics, focusing on the consequentialist foundations of the field and the resulting ignorance of fundamental human rights and dignity therein. Finally, I suggest several future areas of research in a social economics of crime, such as including rights and dignity into the evaluative toolbox of law and economics, and incorporating moral motivation and true agency into the models of individual decision-making used in law and economics.

social economicas, law and economics, dignity, rights

Abstract:
This paper covers two broad general topics, one focusing on firms, and the other focusing on the state, before turning to an actual antitrust case to illustrate the more abstract points of the analysis. First, I explain why actions forbidden by antitrust do not involve any violation of rights or duties, as dictated by Immanuel Kant's formalization of the moral law, the categorical imperative. Second, I discuss the role of the law in Kant's political theory, showing that it exists only to enforce citizens' clearly defined rights against each other, and not to promote a consequentialist end such as welfare-maximization. Along these lines, I argue that antitrust is best understood as a category of criminal law, and Kant has very strong views on criminal sanctions, which should only be used in cases of guilty wrongdoing. Finally, I use the famous (or infamous) case against Microsoft to illustrate and elaborate upon the ethical points made in the first two sections of the paper.

antitrust, Immanuel Kant, Microsoft

Abstract:
Several noted legal scholars, most prominently Richard Posner, have applied the economic analysis of law to the debate over same-sex marriage. In this note, I argue that the economic approach to law is ill-equipped to deal with the issues of principle, dignity, and rights that are at the core of the debate, regardless of the position taken on the issue. Other scholars, such as Darren Bush, acknowledge the shortcomings of the economic approach, such as the importance of the assumptions on which cost-benefit analysis is made, but they do not appreciate that this is symptomatic of the economic approach as a whole, not merely the application of it by some scholars in some cases. My contention is that the economic approach to law is appropriate regarding issues of policy, where trade-offs are essential and necessary, but not issues of principle, with which trade-offs are not so easily made.

law and economics, methodology, same-sex marriage, Richard Posner, rights