Law, Economics, and Morality: Constrained Economic Analysis of the Fight Against Terrorism

Abstract

This is a chapter of our book titled Law, Economics, and Morality, in which we propose to integrate threshold deontological constraints (and options) with cost-benefit analysis (CBA), thus combining economic methodology with deontological morality. The chapter presents a constrained CBA of measures taken in the fight against terrorism. It begins by characterizing and criticizing existing normative economic analysis of the fight against terrorism as reflecting a simplified ad-hoc balancing. It then presents the central deontological constraints pertaining to the fight on terror. The bulk of the chapter discusses threshold functions that should be employed to determine the permissibility of such measures as targeted killings and torture. We discuss the factors affecting the evaluation of the act’s relevant net benefit, and those determining the amount of net benefit required to justify an infringement. We argue that standard economic analysis fails to take into account critical distinctions. These include the distinction between different goals of antiterrorist measures (including retribution, deterrence, preemption and pressure); the difference between harms the state inflicts through antiterrorist measures, and those resulting from unthwarted terrorist attacks; and the distinction between intended and unintended harm. Deontologically-constrained CBA, which incorporates all of these distinctions, is shown to be methodically workable and normatively superior.