In his classic book, Simple Rules for a Complex World (Harvard University Press, 1995), the great legal scholar Richard A. Epstein defends a classical liberal outlook that Rothbardians will find congenial. He supports self-ownership and a first possession rule for property acquisition and emphasizes the great benefits of voluntary exchange over coercion. He shows in detail that when administrative costs are taken into account, disputes are usually, though not always, best settled by voluntary arrangements of the parties involved than by state regulation. His detailed accounts of contracting for labor, employment discrimination and comparable worth, professional liability for financial loss, product liability law, corporate law, and environmental law show his phenomenal grasp of the relevant case law. I hope that he will write an updated edition that covers developments since he first wrote.
I would like in what follows to discuss some points of philosophical interest that stem from the author’s utilitarianism. These matters are best addressed by considering Epstein’s response to the eminent legal philosopher Ronald Dworkin. There are a number of variants of utilitarianism, but, for our purposes, this does not matter. Utilitarians propose to maximize the satisfaction of people’s preferences, but Dworkin, and others as well, contend that some preferences shouldn’t be counted at all: “Libertarians and natural rights theorists, for example, often insist that preferences for rape, murder, and theft are simply ‘illegitimate’ and therefore can be ignored om determining social welfare.” (The economist and philosopher John Harsanyi also omitted such preferences for his social contract version of utilitarianism).
Epstein disagrees. Preferences of this kind will almost always be outweighed by the preferences of others who have contrary preferences:
Their conclusion is correct, but their methodology is wrong. Their normative system has staying power precisely because its prohibitions remain strong even if these illegitimate preferences are taken into account and given their full weight. As before, the important question from behind the veil of ignorance is whether the gains anyone would obtain from aggression would compensate for the equal probability of his being the victim, and, as before, there are none for whom a good faith answer is in the affirmative. . . The reason, then, that preferences for murder, theft, and rape are categorically illegitimate is that they are always outweighed by inconsistent preferences of greater weight and intensity. . .
In brief, the pain that the victim of rape or assault suffers will be greater than the satisfaction obtained by the criminal. This may well be so, but the argument seems vulnerable to counterexamples that involve hypothetical situations. Suppose, for example, that rapists were very widespread and the victims were few (perhaps they are social pariahs who are repeatedly assaulted). It might turn out that the rapists would “win” the utilitarian calculation. Some utilitarians have bitten the bullet. The economist Robin Hanson has said that the reason the Holocaust was wrong was that there weren’t enough Nazis.
Epstein would counter the argument in this way: Such a situation is inconceivable, because societies that allow murder, rape, assaults, and theft would have been eliminated by natural selection. They would be supplanted by societies that obey the moral imperatives we deem correct. Evolution works by maximizing inclusive fitness, and such practices would have been selected against among our prehuman ancestors. Our judgments that these practices are wrong don’t embody objective moral truth but have been hardwired into us. Why appeal to unverifiable intuitions rather than accept the simpler theory offered by the evolutionary view? Occam’s razor applies to moral theory as well as to science.
Epstein’s defense of utilitarianism against appeals to rights is one of the strongest I have encountered, but I find myself unable to accept it. Even if the evolutionary account succeeds in explaining why we hold our moral beliefs, once we know about the inclusive fitness account we face the question: Why should we care about inclusive fitness? Such and such a policy may be built into us by evolution, but we do not operate by instinct, or at least not entirely so; we are free to ask what we should do, despite what inclusive fitness would suggest. If Epstein rejoins that we would be better off if we do follow the rules that evolution has built into us, why can’t the supporter of moral intuition claim that his explanation is at least as good as Epstein’s? Maybe the reason that the intuitions are widely shared is that people grasp they are true. If appeal is then made to Occam’s razor, my answer is that this fails because his theory does not explain our common belief that evil preferences do not count, and thus Occam’s razor fails to generate a clear winner.
There is a further problem, which has been noted by Thomas Nagel in discussing Robert Nozick’s appeal to natural selection. The appeal to natural selection fails to account for the authority of reason, which Nagel takes to be the decisive point. Nozick (and Epstein) can’t stop with the answer that he is not trying to justify reason:
But is this hypothesis really compatible with continued confidence in reason as a source of knowledge about the nonapparent character of the world? In itself, I believe an evolutionary story tells against such confidence. Without something more, the idea that our rational capacity was the product of natural selection would render reasoning far less trustworthy than Nozick suggests, beyond its original “coping” function. . . Unless it is coupled with an independent basis for confidence in reason, the evolutionary hypothesis is threatening rather than reassuring. . .I can have no justification for trusting a reasoning capacity I have as a consequence of natural selection, unless I am justified in trusting it simply in itself—that is, believing what it tells me, in virtue of the content of the arguments it delivers. . . The only form that genuine reasoning can take consists in seeing the validity of the arguments in virtue of what they say. As soon as one tries to step outside of such thoughts, one loses contact with their true content.
In the simplest way I can put the matter, Nagel is saying that “truth” and “evolutionary success” are different concepts, neither of which entails the other. Reason must always have the last word.
Despite this disagreement, Epstein’s book is indeed a classic. It is filled with ingenious and penetrating arguments, and I give it my highest recommendation.
