Law, Economics, and Morality

Abstract

Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. This book examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints (and options) into economic models. It argues that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages, and that moral constraints can be formalized so as to make their analysis more rigorous. The book discusses various substantive and methodological choices involved in modeling deontological constraints. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. The book presents the general structure of threshold functions, analyzes their elements, and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including the fight against terrorism, freedom of speech, anti-discrimination law, contract law, and legal paternalism.

It's Now Or Never! Using Deadlines as Nudges

“…One preliminary question is whether legal intervention in any given context is warranted at all. Some scholars believe that legal interventions should be limited to preventing people from harming others (Mill [1859] , 13–14, 84–85, 92–93), while others argue that such interventions should be extended to preventing harm to the actors themselves (Conly , 48–53; Raz , 412–29; on legal paternalism, see also Feinberg ; Zamir and Medina , 313–47). We do not engage in this debate (nor in the debate about libertarian paternalism mentioned above).…”

“…For example, should health authorities be allowed to create the false impression that the stock of vaccines is limited, so as to encourage people to vaccinate early? While consequentialists would answer this question based on a simple cost‐benefit analysis (taking into account the long‐term and indirect effects of governmental authorities telling untruths), deontologists might wish to prohibit such deceptions even if they produced a net benefit—unless the amount of net benefit surpasses a certain, possibly high, threshold (see generally Zamir and Medina ). In any event, there is much room for using deadlines by legal policy making without the use of deception.…”

The Growth of Knowledge as Grounds Against Paternalism

“…Another option comes from Zamir and Medina (2010), who argue that policies could include deontological thresholds for values such as liberty. They argued that, given freedom has a value, a law must pass a threshold before freedoms are lost and that threshold could be quantified and included in cost-benefit analyses.…”

“…Drawing on Haybron and Tiberius (2012), policies could be guided by the rule of respecting people's status as autonomous agents and that welfare must be determined according to the targeted beneficiaries' own standards. Cost-benefit analysis should include weightings for loss of autonomy and respect (Zamir and Medina 2010).…”

Coercion and Consent

“…For an extensively developed argument about the moral importance of both consequentialist and nonconsequentialist concerns in the legal context, seeZamir and Medina (2010).…”