Private and Public Morality

Abstract

This is a chapter of a book titled Law, Economics, and Morality, which proposes to integrate threshold deontological constraints (and options) with cost-benefit analysis, thus combining economic methodology with deontological morality. The chapter discusses the claim that even if moderate deontology is the correct moral theory for individuals, consequentialism is the appropriate moral theory for legal policymakers such as legislators, judges, and regulators, and for academic policy-analysts. It refutes the argument, made in this context by Cass Sunstein and Adrian Vermeule, that the distinction between actively doing harm and passively allowing it is inapplicable in the public sphere. It similarly counters the argument that the distinction between intending harm and merely foreseeing it is only applicable in the private sphere. The chapter contends that these arguments confuse, among other things, between constraints and options and between the actor’s perspective and the perspective of an external reviewer. It ultimately rejects the alleged dichotomy between personal and public morality.

Keywords: cost-benefit analysis, deontology, consequentialism, economic analysis of law

JEL Classification: A11, B40, D61, D63, D72, H00, K00, K40