catallaxy files

catallaxy in technical exile

Libertarianism and rule utilitarianism

with 25 comments

It is worth revisiting this piece by Andrew Norton where Andrew discusses the alleged differences between libertarians and classical liberals because it raises many interesting issues about justifications for libertarianism. In particular, Andrew writes:

Jason insists that libertarianism can rely on utilitarian as well as rights-based arguments. I think he is right that libertarians use utilitarian arguments, but I feel more to find stronger justifications than natural rights theories for the same freedoms as rights protect than as a real inquiry into what would maximise utility. Libertarians end up arguing against things like seat belt laws, random breath testing or gun control, which I think are tough arguments on utilitarian grounds alone.

I don’t know whether the two examples cited by Andrew are particularly good ones. My take on those is that a road operator, whoever it is (public or private), has the right to set whatever rules are needed for efficient use of the roads.

Gun laws are a better example – while there may be some wild eyed libertarians who favour the right of private individuals to own nuclear weapons I suspect they are few and far between which means the case for some regulation of firepower has to be conceded.

What I would like to dig deeper into is Andrew’s comment about utilitarianism. The question is -would a libertarian who claims to ground his or her libertarianism on utilitarianism necessarily have to concede a role for government intervention in each and every case where a net benefit can be found for the regulation? Can there be, paradoxically, a utilitarian case for setting a higher threshold for government intervention than what a case by case utilitarian analysis of each proposed government intervention would dictate?

I believe so and part of the reason for this goes back to the ideas debated on this thread but even on a common-sensical level, the case for what could be called a rule utilitarian case for libertarian presumptions can be summed up by noting that one must take account of the high-level systemic effects of the gradual accretion of regulations that a solely case by case utilitarian filtering of government intervention would result in.

These systemic effects may include:

  • setting a precedent for additional ‘gaming’ of the regulatory system by self-interested parties
  • creating a self-perpetuating bureaucratic empire of regulators seeking further rationales for their existence and therefore in some cases ensuring regulations are preserved long past their used-by date while creating new and unnecessary ones; and
  • the resulting ‘information overload’ on the part of the regulated and ultimately regulators themselves.
  • In other words, a preemptive approach to avoiding unnecessary future regulation on political economy grounds may well in some cases justify not adopting some regulations or other interventions which presently may just barely pass a utilitarian analysis.

    This may therefore imply setting a higher threshold for whatever conditions need to be met before a proposed government intervention can be ‘approved’ than what would be implied by a case by case analysis.

    It may mean, for instance that regulations or interventions which have more obvious net benefits (like better funding for early childhood education) would pass such a test while regulations which are more marginal because there is a greater probability of self-correction in the marketplace over time (e.g. regulations prohibiting very specific forms of discrimination in hiring practices in the private sector) might be treated with a more sceptical eye particularly since the latter also has the potential to be self-perpetuating and result in a slippery slope towards more detailed micromanagement. I think such an approach would also tend to rule out most paternalistic measures such as anti-gambling laws (almost regardless of the utilitarian benefits) because the ‘slippery slope’ and ‘self perpetuating’ dynamics for these kinds of regulations would be particularly powerful.

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    Written by Admin

    October 21, 2006 at 10:12 pm

    Posted in Uncategorized

    25 Responses

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    1. Jason, that blockquote from AN doesn’t make sense. Just sayin.

      skepticlawyer

      October 21, 2006 at 10:23 pm

    2. yes I think there is some word or two missing there but it is quoted verbatim. I think the gist of it is clear after the first few sentences

      Jason Soon

      October 21, 2006 at 10:26 pm

    3. The second sentence is too long and would have been re-stuctured if I was revising for publication, but I think it makes sense.

      Interestingly, the left makes Jason’s kind of slippery slope argument against partial deregulation, which is why they always fight against changes to higher ed that would in themselves make things better.

      But I find government intervention in early childhood education more worrying that anti-gambling rules. The cost of government doing to early childhood ed what they have done to schools would be much greater than increasing regulation of gambling, a form of recreation for which there are many possible substitutes.

      Andrew Norton

      October 22, 2006 at 7:47 am

    4. The point about accepting more regulation of gambling is that aside from some case for making the product more transparent, it is ultimately based on the idea of regulating to protect people from themselves. Once this is accepted, yes there is a slippery slope from which we are not pulling ourselves out of – it creates the environment for even sillier things like fat taxes and subsidising lingerie to increase the birthrate.

      If the government wants to put more money into early childhood education subject to budget constraints, this can be done in many ways and doesn’t necessarily have to involve more public production or regulation.

      Jason Soon

      October 22, 2006 at 8:11 am

    5. ‘would a libertarian who claims to ground his or her libertarianism on utilitarianism necessarily have to concede a role for government intervention in each and every case where a net benefit can be found for the regulation?’

      It looks to me that you’re quibling over what constitutes a ‘net benefit.’ Sure the current intervention standards are too low: If a government official can think of someting, it’s immediately and obviously a ‘benefit’ that must be implimented at any cost.

      Now we can place higher hurdles and burdens etc. adding in information costs and deadweight losses are a godd starting point.

      I suspect, however, that our utilitarian friends undervalue personal autonomy. At this point utilitarian arguments for libertarianism break down. Like Jason, I agree – the owner of the road can set conditions for usage of the property. So I have little problem with breath testing, safety belts and helmets. Please note, this is a property rights issue, not a ‘we’re members of the community’, or ‘the community pays your health care’. But, on this logic, why does the government bans smoking on private property (bars, clubs aeroplanes, etc) but allow it on public property (sidewalks)? Gun ownership is also problematic for utilitarians, but not libertarians. Jason and I disagree on this (and I’m sure Jason doesn’t want another gun debate, again).

      I digress. Utilitarianism can still support paternalism at some level. Liberatarianism cannot support paternalism at any level. At the margin, therefore, I don’t think utilitarianism can support liberatarian views. Of course, the two are highly correlated, and Andrew did say the two were first cousins. perhaps. But I would say siblings.

      Sinclair Davidson

      October 22, 2006 at 8:24 am

    6. Sinclair
      Originally I was going to introduce an analogy between per se rules and rule utilitarianism vs ‘rule of reason’ and case by case utilitarianism into my argument but I ultimately decided it would make it too abstruse. But if you’re familiar with the antitrust terminology you’d see my point immediately.
      Rule utilitaranism is like a per se approach to govenrment intervention i.e. a per se presumption against intervention and this per se rule itself can be justified on utilitarian/infomation economising grounds (just like it is in antitrust economics) and is more capable of deriving quite libertarian conclusions.

      Jason Soon

      October 22, 2006 at 8:29 am

    7. Sinclair
      I also think you’re missing the point when you write:
      “Now we can place higher hurdles and burdens etc. adding in information costs and deadweight losses are a godd starting point. ”

      The deadweight losses are already taken into account when something passes a case specific utilitarian test. A rule utilitarian approach weeds out things that already pass this hurdle and looks at precedential, future gaming effects, etc.

      Jason Soon

      October 22, 2006 at 8:35 am

    8. “Gun laws are a better example – while there may be some wild eyed libertarians who favour the right of private individuals to own nuclear weapons I suspect they are few and far between which means the case for some regulation of firepower has to be conceded.”

      PROVISIONALLY CONSIDERED would be better then CONCEDED don’t you think Jason.

      Here is a danger with this utilitarianism cuckoo-baby right there. You’ve given away the store and the means to protect it right there.

      GMB

      October 22, 2006 at 8:35 am

    9. “The deadweight losses are already taken into account when something passes a case specific utilitarian test.”

      No it isn’t. Thats ridiculous. Explain yourself.

      Supposing I’m in a room of some young lady with a couple of sophists and a High Court Judge.

      And we put up a case that I will get more utiles whilst raping the young lady then the displeasure accorded to her.

      And the HIgh Court guy signs off on this constitutionally.

      The girl herself doesn’t put up much of an argument and we all decide it isn’t her lucky day.

      Now supposing our entire legal system is perverted by these findings:

      “The deadweight losses are already taken into account when something passes a case specific utilitarian test.”

      You cannnot mean what you are saying.

      Can someone show me a CASE-SPECIFIC-UTILITARIAN-TEST????

      Has anyone ever seen one? If we went looking for one would we eventually find some big footprints in the snow? A huge steaming shit? And some discarded snow-covered banana skins?

      I love this new phrase.

      A CASE-SPECIFIC-UTILITARIAN-TEST????

      But has anyone really SEEN this Sasquatch.

      GMB

      October 22, 2006 at 8:43 am

    10. You’re missing the pojnt too, Graeme.
      That’s EXACTLY why I think you can justify a higher threshold against intervention. I wrote:

      “In other words, a preemptive approach to avoiding unnecessary future regulation on political economy grounds may well in some cases justify not adopting some regulations or other interventions which presently may just barely pass a utilitarian analysis.

      Jason Soon

      October 22, 2006 at 8:47 am

    11. “I suspect, however, that our utilitarian friends undervalue personal autonomy.”

      Sometimes you use understatement for effect. The fact is they give personal autonomy a ZERO value. By definition they are giving it a zero value.

      This is a nihilist philosophy this chameleon philosophy.

      Utilitarians are implying that personal liberty is not worth anything but the smallest amount of economic goods and services. Otherwise what else is utilitarianism other then a monumental redundancy.

      Well actually its a shape-changer that slides along the axis between redundancy and nihilism.

      GMB

      October 22, 2006 at 8:52 am

    12. In principle, I think, we already have a per se rule against government intervention. It just doesn’t work in practice.

      I have often thought that all legislation (and regulation) should contain a section outlining the intended effects of the policy change. If individuals can show an effect that is not intended then they should be compensated. Now, of course, government could simply specify anything and everything as a consequence of legislation, but at some point that would expose them to some scrutiny.

      Sinclair Davidson

      October 22, 2006 at 8:53 am

    13. Jason.

      Are YOU able to find me this case-specific-utilitarian-test?

      Or do you have a couple of smudged photo and some old 17mm film where the cameraman topples over.

      GMB

      October 22, 2006 at 8:55 am

    14. Graeme
      what originally led to this post was this comment by Andrew Norton:
      ‘Libertarians end up arguing against things like seat belt laws, random breath testing or gun control, which I think are tough arguments on utilitarian grounds alone’

      Yes, there are studies which seem to justify some regulations on cost-benefit analysis grounds. Of course we know that in practice politicians use these studies as ex post justification rather than really doing such a test before deciding on anything.

      Jason Soon

      October 22, 2006 at 8:57 am

    15. “I have often thought that all legislation (and regulation) should contain a section outlining the intended effects of the policy change. If individuals can show an effect that is not intended then they should be compensated.”

      Compensated with what?

      I mean I agree that they ought be compensated. But thats not sufficient and its a further rights-violation.

      You are saying that they should be compensated with money stolen from the taxpayer.

      If we have to rely on that AS A PRINCIPLE then the bully-boys get to abuse people then they get to abuse other people in order to PAY OFF the people they first abused.

      With the promotion of that way of doing things its pretty clear that even THAT safeguard isn’t going to hold forever and a day. Since it puts the abusers on an exalted plane.

      We can see how untenable this Utilitarianism is as a guiding philosophy.

      It gives us no guidance whatsoever. In fact it relies on other thinking for any such guidance as it might pretend to give.

      Its an ANYTHING GOES way of thinking. It promotes the idea that ANYTHING GOES so long as you have the requisite sophistry teed up.

      It actively promotes governmental depredation no matter how against governmental depredation its advocates claim to be.

      GMB

      October 22, 2006 at 9:02 am

    16. Graeme
      Milton Friedman IS a utilitarian. He uses utilitarian arguments. So he is for more government depredation?

      Jason Soon

      October 22, 2006 at 9:04 am

    17. “Yes, there are studies which seem to justify some regulations on cost-benefit analysis grounds. Of course we know that in practice politicians use these studies as ex post justification rather than really doing such a test before deciding on anything.”

      A TEST becomes a STUDY….

      You got any examples of this.

      You see I saw something like this at University. It was a thesis about the effect of the height of buildings in Melbourne and what this did to the wind. How it made things windier on the ground.

      And then the moron claimed that this justified a restriction of the height of buildings in Melbourne???

      Can you refer me to this TEST (not always quite the same thing as a study)

      Would the practise of producing these tests or studies themselves pass ANY SORT of test ON THERE OWN GROUNDS.

      Because:

      1. You say they are used by politicians as an ex-post justification.

      2. We know that these tests are financed by government depredation in the first place.

      3. They might influence people negatively.

      4. The people putting out these TESTS would otherwise be working for a living, helping spread and therefore lighten the load of the taxpayer. Be producing GOODS rather then TESTS and so forth.

      The tests themselves cannot justify the costs of their production.

      We want to get to the truth. We don’t want to hunt down like Columbo every case in which abusing people can be construed as causing a net benefit.

      Utilitarianism in actually promoting the hunting down of these situations cannot even pass muster under its own standards.

      GMB

      October 22, 2006 at 9:10 am

    18. “Graeme
      Milton Friedman IS a utilitarian. He uses utilitarian arguments. So he is for more government depredation?”

      Don’t be hiding behind him. You’re a big fella now. Gym-pumped and all.

      He calls himself a consequentialist. But thats just him practising the division-of-labour. He doesn’t actively PROMOTE consequentialism as a guiding philosophy like you seem to.

      Instead what he does is show the consequences of immoral behaviour.

      There is a difference you know.

      It may be subtle but its not impossible to see.

      GMB

      October 22, 2006 at 9:14 am

    19. “Can you refer me to this TEST (not always quite the same thing as a study)”

      Really at a very primitive level in practice – have a look at this
      http://www.pc.gov.au/orr/ris/index.html

      Jason Soon

      October 22, 2006 at 9:18 am

    20. Well that doesn’t look so much like any

      A CASE-SPECIFIC-UTILITARIAN-TEST

      I did think I saw SOMETHING although it was like he might have dissapeared behind a tree. If I did see him in the first place.

      We are looking for a study where some sort of RIGHTS-VIOLATION is thought to confer some manifestly greater net-benefit.

      In the cases I could find in your link it looked like various impact statments of a reshuffling of the various property-rights violations already in place.

      So you have some many thousands of property-rights violations and then you change some of them and add a few more……Then you say to yourself “what is the likely impact”.

      Thats not really the beast we were on the trail of.

      GMB

      October 22, 2006 at 9:32 am

    21. would a libertarian who claims to ground his or her libertarianism on utilitarianism necessarily have to concede a role for government intervention in each and every case where a net benefit can be found for the regulation? Can there be, paradoxically, a utilitarian case for setting a higher threshold for government intervention than what a case by case utilitarian analysis of each proposed government intervention would dictate?

      It depends on whether you regard the individual as the only vehicle for maximising his/her interests. I don’t, therefore collective action (through government or non-government means) has to have the benefit of the doubt.

      Andrew Elder

      October 22, 2006 at 1:25 pm

    22. Andrew E
      ‘collective action through non-government means’ isn’t an issue here obviously since by definition it requires no government intervention.

      Jason Soon

      October 22, 2006 at 1:27 pm

    23. Jason, I was thinking of campaigns where getting together to make something happen, and lobbying a politician/bureaucrat as a minor element of the voluntary activity. Such campaigns are more similar to voluntary action than they are to institutionalised rent-seeking, or just sitting around and waiting for the heavy hand of government to descend on you. Politicians who represent themselves as ‘community activists’ or such are awake to the appeal of this, and another illustration why individual or government is a false dichotomy. Community organisation is the only effective way to minimising government.

      Andrew Elder

      October 22, 2006 at 1:38 pm

    24. “It depends on whether you regard the individual as the only vehicle for maximising his/her interests. I don’t, therefore collective action (through government or non-government means) has to have the benefit of the doubt.”

      No it doesn’t.

      That doesn’t follow at all.

      Thats not even a utilitarian case. Thats the sort of case on the basis of “if the eye SEES, let the hand GRASP” sort of argument.

      Explain yourself Elder. If you aren’t being a complete idiot you are just giving us the ethos of the guild-of-thieves coming straight from the ID.

      GMB

      October 22, 2006 at 1:55 pm

    25. Andrew E.

      You are playing some sort of multiple-game here.

      Its not pretty.

      See if you can restate your case again for clarity.

      You appear to be trying on some sort of smuggling swindle.

      GMB

      October 22, 2006 at 1:59 pm


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