In my column last week, I argued against Richard Epstein’s utilitarianism, as discussed in his book Simple Rules for a Complex World (Harvard, 1995). This week, I’d like to discuss some of the many insights found in the same book.
First, Epstein offers a brilliant criticism of the argument that we need not take people’s preferences seriously, because they are “socially constructed.” According to this way of thinking, if, say, people don’t want to be taxed to support costly welfare programs, their reluctance is the product of the way they have been brought up. In our society, people have been taught to be selfish, preferring to spend their money as they wish rather than give it to the government. But this can be changed through policies that condition people to be more altruistic. As Epstein puts it:
Nor is it an accident that the critics of market economics from Marx to the present all reject the twin postulates of stable preferences and individual self-interest, only to replace them with accounts of human motivation that are both more complex and less persuasive. One influential strand of thought in this tradition argues that the content of rules shapes the nature of individual preferences, so that it is impossible to conceive of legal rules and social institutions as satisfying some predetermined set of human preferences in a world of imperfect information and high transaction costs. Over and over again, we are told that the advocates of competitive markets naively assume the stability of individual preferences when these preferences are in fact shaped by legal rules.
Epstein counters that the social conditioning view is “selectively invoked.” If there aren’t some stable preferences (e.g. preferences against aggression) that aren’t the result of social conditioning, then chaos would result. And if it is countered that other preferences are shaped by society, where do you draw the line?
When the task at hand is to explain why aggression is bad, or why monopolies distort social welfare, no one resorts to complicated theories of human psychology. The robust assumption of individual self-interest explains why these forms of behavior should be regarded as antisocial by showing how private gain translates into social loss. With aggression, the imbalance is evident, since the aggressor need not take into account the loss of his victim in deciding on the merits of his own action. . . Remove the assumptions of individual self-interest and these arguments fall quickly into ruins, because private behavior is no longer predictable enough to account for social outcomes. Indeed, in this setting any appeal to endogenous preferences is downright dangerous if it undermines the firm social consensus that is otherwise achievable.
Epstein launches a devastating attack against the philosopher Ronald Dworkin’s argument that “external” preferences should not be taken into account in social policy. In Dworkin’s view, when the government is deciding on what to do, it should disregard preferences that people have about other people. If you want to discriminate against certain groups, your preference doesn’t count, and Dworkin accordingly defends anti-discrimination laws. Epstein responds that almost all our preferences have some relation to other people and thus count as “external” in Dworkin’s sense. The government then is thus free to impose totalitarian controls:
But in Dworkin’s world it appears that the class of external preferences. . .concerns every person’s own interactions with other persons. Indeed, it is the desire to rule out as morally irrelevant preferences based on race, sex, and age (subject of course to some slippery preference for affirmative action and diversity) that drives his distinction in the first place. . .once these preferences are ruled out, it becomes a simple matter to discredit individual autonomy and the principle of freedom of association. . . Dworkin’s desire to give these preferences no weight shrinks the class of personal preferences to choices that no one cares about—not quite an empty set, but close. Dworkin’s extended conception of legitimate preferences quickly becomes the entering wedge of a totalitarian system. . . Under Dworkin’s freewheeling approach, the prohibition on external preferences becomes a club that allows the state (or at least the moral philosopher) to beat his (or its) way into every nook and cranny of human life—from courtship and marriage to child rearing, to education, to religious practices, to ordinary commercial contracting—in short, into every aspect of human culture and behavior involving possible connections and associations among individuals.
Finally, Epstein responds to critics of the free market—found on both the right and left—who accuse capitalism of encouraging the unlimited pursuit of money, to the neglect of virtue. In Wordsworth’s famous line, “Getting and spending, we lay waste our powers.” These critics want the state to limit the market in order to promote virtue. Such a policy, Epstein notes, is a contradiction in terms. A necessary condition for virtue is that one acts voluntarily. Coerced “virtue” is not virtue at all:
The uncritical reliance on coercion drives out informal sanctions and curtails possibilities for displaying the personal virtues we all prize. The most that we can expect from a legal system is to create a domain that allows the virtuous a free sphere of action to do good deeds. . . Is it really possible to allow people to sue friends who do not stick to them in time of trouble? Or to sue people who are brusque and unkind? Is it necessary to create a set of legal rewards for someone who lends a sympathetic ear, gives a good piece of advice, or acts as a good Samaritan? To envision a society driven solely by legal and formal sanctions is to envision a society where bone is always rubbing against bone. We need to have some cartilage to soften the blow, and that can only come if the legal order is not so inclusive and intrusive as to destroy all informal systems of social control.
I urge readers interested in political philosophy to put away the siren song of the performative contradiction and instead study Epstein carefully.
