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Table of Contents
National Security Good
National Security Bad
Deontology Good
Deontology Bad
Social Contracts Support Individualism and Individual Rights
The Social Contract Sustains Political and Economic Growth/stability
The Social Contract is a Rational Choice
The Social Contract is Totalitarian and Oppressive
The Social Contract is Harmful
Governmental Legitimacy Good
Governmental Legitimacy Bad
Utilitarianism Good
Utilitarianism Bad
Utilitarianism vs. Deontology
Utilitarianism Doesn’t Respect Human Rights
Economic Growth Good
Economic Growth Bad
Impacts: Economic Growth
Morality Bad
Morality Good
Freedom of Expression Good
Freedom of Expression Bad
Justice Good MPX
Justice is Sound Value Premise
Justice is Bad for Society
Justice is Not a Good Value for Debate
Quality of Life Should Be Prioritized
Quality of Life Not a Priority
Cost Benefit Analysis and Deontology
Answers to Cost Benefit Analysis
Cost Benefit Analysis and Morality
Cost Benefit Analysis is a Versatile Weighing Mechanism
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NATIONAL SECURITY GOOD
NATIONAL SECURITY ONLY LIMITS INDIVIDUAL RIGHTS IN FAVOR OF THE
NATION
Hurst Hannum *, Executive Director, Procedural Aspects of International Law Institute,
American Journal of International Law, 1981
CURRENT DEVELOPMENT: THE THIRTY-THIRD SESSION OF THE UN SUBCOMMISSION ON PREVENTION OF DISCRIMINATION AND PROTECTION OF
MINORITIES, accessed 8-12-2010, http://www.lexisnexis.com/hottopics/lnacademic/
While some members had expressed reservations about the value of the Daes study on grounds
that it was not appropriate or necessary to focus on limitations on rights or on individual duties
instead of restraints on state action, the extensive final study does offer several useful
observations and conclusions with respect to restrictions on the state's power to limit individual
rights on the grounds, inter alia, of national security or ordre public. For example, the study
makes clear that the mere procedural lawfulness of a statute restricting individual rights is not
sufficient to justify that restriction, since the statute must also conform to the requirements set
forth in the relevant international instruments. The study calls for the direct application of
international human rights law in national tribunals and also recognizes the individual's status in
international law.
NATIONAL SECURITY ENABLES THE HARM PRINCIPLE
Song Sang-ho, The Korea Herald 2010
CHILD PICKET BAN A VIOLATION OF RIGHTS’ Accessed 8-12-2010
http://www.lexisnexis.com/hottopics/lnacademic/
"Children's right to freely express their views can be restricted only when the restriction is
necessary not to compromise national security, public safety, public order, public health or the
protection of others' rights and freedoms."
TELEOLOGY MUST BE USED TO DETERMINE JUSTIFICATION OF NATIONAL
SECURITY
Fleur Johns and Jacqueline Mowbray, Sydney Centre for International Law at the University of
Sydney, 2010
ISLAM IS NOT ON TRIAL IN JUDGE’S BURQA RULING; COMMENT AND DEBATE,
accessed 8-12-2010, http://www.lexisnexis.com/hottopics/lnacademic/
An analysis of whether the policy balanced national security considerations and individual
rights must include discussion regarding its effectiveness.
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NATIONAL SECURITY BAD
NATIONALISM DECREASES SAFETY OF MINORITIES, RESULTING IN MASS
MURDER
Nenad Miscevic, Stanford Encyclopedia of Philosophy, 2010
MATIONALISM, Accessed 8-12-2010 http://plato.stanford.edu/entries/nationalism/
Nationalism has long been ignored as a topic in political philosophy, written off as a relic from
bygone times. It came into the focus of philosophical debate two decades ago, in the nineties,
partly in consequence of rather spectacular and troubling nationalist clashes, such as those in
Rwanda, the former Yugoslavia and the former Soviet republics. The surge of nationalism
usually presents a morally ambivalent, and for this reason often fascinating, picture. “National
awakening” and struggles for political independence are often both heroic and inhumanly cruel;
the formation of a recognizably national state often responds to deep popular sentiment, but can
and does sometimes bring in its wake inhuman consequences, including violent expulsion and
“cleansing” of non-nationals, all the way to organized mass murder. The moral debate on
nationalism reflects a deep moral tension between solidarity with oppressed national groups on
the one hand and the repulsion people feel in the face of crimes perpetrated in the name of
nationalism on the other. Moreover, the issue of nationalism points to the wider domain of
problems, having to do with the treatment of ethnic and cultural differences within democratic
polity, which are arguably among the most pressing problems of contemporary political theory.
NATIONAL SECURITY CAN UNDERMINE JUSTICE
Fleur Johns and Jacqueline Mowbray, Sydney Centre for International Law at the University of
Sydney, 2010
ISLAM IS NOT ON TRIAL IN JUDGE’S BURQA RULING; COMMENT AND DEBATE
Yet the ability of judges and jurors to see witnesses' faces, and otherwise assess witness
credibility, is regularly compromised in Australian courts. The identity of undercover police and
other informers may be concealed while they are giving evidence, so as not to jeopardise
ongoing law-enforcement operations. Vulnerable witnesses, such as children or those suffering
from an intellectual disability, are able to give evidence by live video link, or even through a
prior video recording. Special arrangements are also made for witnesses who are physically
disabled or who, for a range of reasons including their relationship to the accused, are likely to
suffer emotional trauma or distress if required to appear in court. Such measures affect the ability
of defendants to test the credibility of the evidence against them, and the ability of judge and jury
to assess the veracity of that evidence. But they are considered necessary to protect other
interests, including national security, public safety and the integrity of our legal processes. The
courts balance the accused's right to a fair trial and other public interests.
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NATIONALISM UNDERMINES INDIVIDUAL RIGHTS UNCONSTITUTIONALLY
Amos N. Guiora, Temple International and Comparative Law Journal, 2006
TRANSNATIONAL COMPARATIVE ANALYSIS OF BALANCING COMPETING
INTERESTS IN COUNTER-TERRORISM
Effective counter-terrorism strategy must be based on sophisticated risk assessment; an equal
risk approach is operationally unfeasible and ineffective. The Bush administration's postSeptember 11 immigration detention policy, is demonstrated at the nation's airports. At U.S.
airports, all travelers are subjected to the same check with little if any differentiation, just as all
immigrants are treated with little differentiation. Just as that policy does not better protect the
United States, detention predicated on belonging to a particular group rather than on an
individualized basis does not better serve the public. In the context of the question that this
article addresses, the alien policy adopted by the administration in the aftermath of September 11
reflects an improper balance between national security and individual rights. Furthermore, as
clearly articulated by the Supreme Court in previous cases, the policy is unconstitutional.
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DEONTOLOGY GOOD
ECONOMICS CANNOT FUNCTION WITHOUT DEONTOLOGY
Irene Van Staveren, Professor of Pluralist Development Economics, 2007
Beyond Utilitarianism and Deontology: Ethics in Economics, p. 22-23
As is widely acknowledged among economists, an economy can function only when certain
normative requirements are fulfilled. Partly, these requirements can be understood as rights, such
as property rights and contractual rights. Another requirement concerns norms. These can be
formal or informal norms – expressed in formal institutions, such as the welfare state, or
informal institutions, such as culturally-shaped styles of human resource management in firms.
Beyond Utilitarianism and Deontology Rights and norms have been widely understood to
influence the economic behaviour of individual agents, firms, and the state. They have been
taken up in a wide variety of economic traditions, including the mainstream through new
institutional economics, public choice theory, and the field of law and economics. Deontological
notions such as ‘rights’, ‘dignity’, ‘equality’, ‘obligations’, and ‘norms’ appear more
prominently in heterodox traditions such as political economy, (old) institutional economics,
Post Keynesianism, and socio-economics, as well as in cross-cutting areas such as feminist
economics and ecological economics. The common ground is a recognition that rights and norms
affect economicbehaviour as constraints on choice.
DEONTOLOGY DOES NOT RELY ON UNPREDICTABLE OUTCOMES;
CONSEQUENTIALISM FAILS IN REAL LIFE SCENARIOS
Charles D. Kay, professor of philosophy, 1997
Notes on DEONTOLOGY,
Kant's theory is an example of a deontological or duty-based ethics : it judges morality by
examining the nature of actions and the will of agents rather than goals achieved. (Roughly, a
deontological theory looks at inputs rather than outcomes.) One reason for the shift away from
consequences to duties is that, in spite of our best efforts, we cannot control the future. We are
praised or blamed for actions within our control, and that includes our willing, not our achieving.
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DEONTOLOGY BAD
DEONTOLOGY CANNOT RECONCILE MORALITY WITH OTHER CONCERNS
Irene Van Staveren, Professor of Pluralist Development Economics, 2007
Beyond Utilitarianism and Deontology: Ethics in Economics, p. 22-23
Deontology and economics do not seem to be compatible. Whereas economics is concerned with
behaviour characterised by choices and ends, deontology is concerned with behaviour
characterised by duties and limitations. While economics is about markets and allocation
problems, deontology implies a rulesetting authority and distribution problems. It appears that
economic behavior and moral rules are in opposition, and that little room exists for deontology in
economics.
DEONTOLOGY TOO SIMPLE TO APPLY TO THE COMPLEXITIES OF HUMAN LIFE;
DOES NOT HAVE ANY REAL WORLD IMPACTS
Irene Van Staveren, Professor of Pluralist Development Economics, 2007
Beyond Utilitarianism and Deontology: Ethics in Economics, p. 22-23
However attractive this moral theory may seem, it has several shortcomings. First, not all moral
problems can be solved by rules. Human life is too complex to be reduced to a set of rights and
duties (Anscombe, 1997). Indeed, as Walsh (2003, p. 285) has concluded, deontology is limited
to issues of the will. It excludes vulnerabilities of human life that are outside the reach of the
human will, such as scarcity of means and various contingencies to which social and economic
life is so vulnerable. So morality needs to involve more than universalist reasoning and a
steadfast will.2 As Putnam (2003, p. 405) has argued, it requires more than moral rules, since
there are other ways values are expressed besides rules telling us what people must do.
DEONTOLOGY TOO UNIVERSAL AND BROAD, DOES NOT ALLOW FOR DECISIONS
BETWEEN TWO VALUES
Irene Van Staveren, Professor of Pluralist Development Economics, 2007
Beyond Utilitarianism and Deontology: Ethics in Economics, p. 22-23
A further limitation is that deontological ethics has no criterion for dealing with conflicting rules.
There is no higher-level rule that enables a unique rank ordering of moral rules according to their
relative importance; nor does the theory allow for exceptions (Crisp & Slote, 1997). If killing is
wrong and we find ourselves in a situation in which killing one person would help to save the
lives of a hundred others, would we not, perhaps, reconsider the rule and look at its
consequences in this particular context? What about a situation in which one needs to choose
between two evils, for example lying in court and betraying a friend?
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CATEGORICAL IMPERATIVES CANNOT BE EFFECTIVELY APPLIED
Ethics: An Introduction to Moral Philosophy
October 8, 2009 Martin Cohen BOOKS; Pg. 48 No. 1917
"It's like being in a restaurant, and the waiter asks me what I'd like. I tell him, 'The tomato soup
looks good,' and he, interpreting this purely as a psychological comment about my personal taste
in soup, goes back into the kitchen and gets me nothing ... The whole thing ends with me soup
less and him well informed; yet this is what your theory reduces morality to. "One small
example: Noel Stewart suggests that giving £ 100 to charity is better than giving 10p, in the same
sense that a straight line is better for being truly straight rather than wobbly, whereas the moral
worth of a gift need not have anything to do with its cash value. Or take another unusual
example, this time of urinating on graves. This, we are assured, illustrates the weakness of both
utilitarianism and Immanuel Kant's kind of deontology, which, by allowing such a disgraceful
act, become "ridiculous". "Both theories go badly astray here because they ignore the man's
character," adds Stewart, who is, after all, a schoolteacher, and expected to be concerned about
such things. Elsewhere, the line between the author's own views (indeed feelings) on a matter
and the philosophical arguments becomes blurred. In a discussion of the limits of Kant's
categorical imperative in application to abortion, Stewart roundly condemns Kant for ignoring
"the intimate and raw feelings of love and the instincts of protective care mothers have for their
babies", concluding the discussion tendentiously: "This is her baby we're talking about, not just
some abstract source of future categorical imperatives. "It is a book in which the reader is invited
to disagree, and there is much to disagree with here.
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SOCIAL CONTRACTS SUPPORT INDIVIDUALISM AND INDIVIDUAL RIGHTS
SOCIAL CONTRACT ALLOWS FOR INDIVIDUALS TO ACHIEVE THEIR HIGHEST
POTENTIAL
David M. Shapiro, 2002
SELECTED PHILOSOPHY TOPICS THAT ARISE FREQUENTLY
IN LINCOLN-DOUGLAS DEBATE, Accessed 8-12-2010,
http://debate.uvm.edu/NFL/rostrumlib/
The Social Contract is a theory which seeks to explain this system of benefits and obligations in
a society. The theory assumes that, long ago, individuals existed in an asocial context (they did
not live in a society). Exponents of the Social Contract called this presocial condition the State of
Nature. Because individuals did not belong to societies in the state of nature, they did not have
obligations to societies and could more or less do whatever they wanted. But living without a
society also meant that individuals received no benefits from a society. These individuals, as
rational beings, gradually came to realize that the state of nature did not allow them to live up to
their full potential because they remained divided and incapable of working together.
SOCIAL CONTRACTS ENABLE INDIVIDUAL FULFILLMENT
David M. Shapiro, 2002
SELECTED PHILOSOPHY TOPICS THAT ARISE FREQUENTLY
IN LINCOLN-DOUGLAS DEBATE, Accessed 8-12-2010,
http://debate.uvm.edu/NFL/rostrumlib/
People were fundamentally good, and therefore that state of nature was relatively peaceful.
Nonetheless, the disorder of the state of nature meant that individuals could not unite and
channel their energies toward common goals, hence the need for a society. Because Locke had
more faith in human nature than did Hobbes, he saw no need to control people absolutely.
Locke's Social Contract granted people more freedom than Hobbes's, and sought to strike a
balance between order and liberty.
THE SOCIAL CONTRACT SUPPORTS EQUAL AUTONOMY FOR ALL
Rosenfeld, Michel. Professor of Law, New York Law School. THE RELATION BETWEEN
CLASSIC CONTRACT LAW AND SOCIAL CONTRACT THEORY. Iowa Law review.
For those who share the liberal ideal of achieving the greatest possible autonomy for each
individual compatible with both equal autonomy for all and the degree of social cooperation
necessary to insure the survival of society, the conjunction of the social contract with freedom of
contract seems highly desirable. Indeed, this conjunction not only permits neutrality with respect
to individual visions of the good, but also strictly limits the realm of individual obligations.
These results are achieved by dividing the universe of social relationships into the two separate
and distinct spheres of the public and the private. The terms of the social contract govern the
relationships in the public sphere and impose a limited number of obligations owed by each party
to the social contract to all the other parties ot it. Freedom of contract, on the other hand,
operates in an extensive private sphere in which individual obligations are limited to those
arising out of particular legal contracts and extend only to the other party or parties to such
contract. n4 Thus, in the private sphere, no obligation is owed to anyone unless it has been freely
chosen, and, even then, it is only owed to the limited number of individuals to whom the obligor
has freely chosen to make a commitment.
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THE SOCIAL CONTRACT SUSTAINS POLITICAL AND ECONOMIC
GROWTH/STABILITY
THE SOCIAL CONTRACT IS AT THE BASIS OF THE MODERN POLITICAL STATE AND
ECONOMY
Amurad Merican. 2010. BAGAN DATOH AND 'THE SOCIAL CONTRACT'
The Social Contract set the trend for modern political thought and philosophy of the state. It
propounds a doctrine, set against the view of the divine right of kings, namely, that the
government gets its authority by willing consent on our part, not by God's authorisation. While
Rousseau's opening lines stated that "Man is born free; and everywhere he is in chains", he
thought that a good government can be justified in terms of the compromise to which each of us
submits so as to gain civil liberty and proprietorship -- common themes in the European
Enlightenment. The social contract doctrine was indeed central to the social, historical and
geographical location of the Enlightenment in the Occident. Certainly Socrates and Plato had
expressed similar arguments pertaining to our relationship with order and punishment, and the
propensity for self-interests in Man.
THE SOCIAL CONTRACT SUPPORTS ECNOMIC RECOVERY
Dr. Gono, The Herald. 2007. SOCIAL CONTRACT THE WAY TO GO'
Dr Gono says experiences in other countries show that the social contract has immense benefits
in stabilising inflation and eventually achieving economic recovery. The social contract has been
used with varying degrees of success in other countries such as Malaysia, Barbados and
Australia. "A social contract can be a very useful tool to allow the Government, business and
labour to map the way forward knowing what other social partners expect of them as opposed to
the current situation where prices, bank rates and exchange rates go up overnight without
warning. "Social contracts are more relevant to us in the Third World because we rely on foreign
investment and aid. Even developed countries have some form of social partnership,"
THE SOCIAL CONTRACT CHECKS HYPERINFLATION
Zimbabwe Independent. 2007. SOCIAL CONTRACT LONG-OVERDUE
He therefore drew upon the lessons of history for, almost without exception, every successful
recovery of economies from hyperinflation has been founded upon one common platform, that
platform being known as a social contract. Germany anchored its recovery, from annualised
inflation of 814 000 000% in 1923 to 4% in 1924, upon a social contract. Hungary used a social
contract as the foundation for inflation containment from 19 800% per month to under 8%, while
Bolivia similarly brought down inflation, in little more than one year, from 23 447% to less than
5%. Similar successes have, at different times, been achieved in the USA, Israel, Peru,
Venezuela, Italy and many other countries, in every instance a social contract being the base
upon which all the actions to contain inflation were founded
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THE SOCIAL CONTRACT IS A RATIONAL CHOICE
MEN HAVE EVERY REASON TO ENTER INTO SOCIAL CONTRACT
Thomas Hobbes, Leviathan (1651)
THE STATE OF NATURE AND THE BASIS OF OBLIGATION
In the following excerpts from Leviathan, Hobbes invited his readers to imagine a world without
laws, police, courts, and prisons-a world of "perfect" liberty and equality-and then went on to
show "scientifically" that such a world would be nothing less than a "war of every man against
every man." Thus, he concluded, rational, self-interested people would have every reason to
enter into a '"social contract" in which they put themselves under the unlimited authority of a
sovereign ruler.
SOCIAL CONTRACT PROTECTS PEOPLE – e.g. COPYRIGHT LAWS
Fordham Intelectual Property, Media & Entertainment Law Journal, 2010
Accessed 8-11-2010 http://www.lexisnexis.com/hottopics/lnacademic/
THE SOCIAL CONTRACT AND AUTHORSHIP: ALLOCATING ENTITLEMENTS IN THE
COPYRIGHT SYSTEM
The social contract theories offer a fundamental theory about individual, societal and
governmental or state relations that provides an important tool to deepen our understanding of
the copyright system and what the law aims to achieve through the grant of statutory rights that
create a temporary monopoly over literary and artistic works for which society bears the cost. n228
This [*472] Article argues that copyright law ought to be about the encouragement of authentic
authorship by encouraging authors to be creative in their production of literary and artistic works
for the public to benefit from. The law is much less about the publication, dissemination or
commercialization of creative works and more about setting the optimum conditions in which
authors and creators are encouraged to produce these works that will appeal to and benefit the
public. The fundamental tenet of the social contract theory - that individuals within society arrive
at a mutually beneficial agreement to be governed by a state authority, moral norms or a theory
of justice as fairness n229 - is a particularly important philosophical idea to help us understand the
historical trajectory of copyright law that has led us to this point and to provide us with a road
map as to where we should head for the future with copyright policies and law.
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THE SOCIAL CONTRACT IS BASED ON UNANIMOUS CONSENT
Carey, George. Professor, Georgetown University. NATURAL RIGHTS, EQUALITY, AND
THE DECLARATION OF INDEPENDENCE. Ave Maria Law Review.
In its most rudimentary form, the social contract theory postulated that individuals first lived
without government in a state of nature, where they enjoyed equal liberty and natural rights
(discrete portions of the natural, equal liberty), the exercise of which conformed with natural law
(usually God-given and/or derived from reason). Because not all individuals obeyed the natural
law and also because there was no acknowledged common superior to settle disputes that arose
between individuals, governments were formed through contract by unanimous consent. As will
be apparent later in this discussion, however, not all contract theories were exactly alike:
differences existed over the context and source of the natural law, as well as over the character of
rights. Nevertheless, this theory provided the rough framework within which issues such as the
limits of obedience to government, the obligations of the citizens to authority, the legitimate
powers of government, and the need for virtue and restraint were discussed before and during the
founding period.
SOCIAL CONTRACTS ARE AT THE HEART OF LAW AND JUSTICE IN THE UNITED
STATES
Allen, Anita. Professor, University of Pennsylvania. SOCIAL CONTRACT THEORY IN
AMERICAN CASE LAW. Florida Law Review.
Social contractarian thought figures in American case law in at least three explicit ways, the first
one less interesting than the others. First, courts invoke the names and views of noted
contractarian philosophers-Locke, Hobbes, Rousseau, and Rawls-as corroborating scholarly
authority. Locke's theory of government stressed individual rights against civil authority.
Accordingly, judges cite Locke as scholarly authority for decisions that would limit the power of
government in the interest of individual liberty or private property. Judges have cited both Locke
and Hobbes as venerated support for the Fifth Amendment privilege against self- incrimination.
Notwithstanding the civil libertarian understanding of the right against self-incrimination
defended in his Leviathan, Hobbes argued for a near absolute form of sovereign government
over the individual. From time to time judges cite Hobbes with plain disapproval as a paradigm
of illiberal political extremism. Judges seeking warrant for extending government power or
granting governmental immunities have cited Hobbes with approval. Rousseau's views about the
role of the public in rearing and educating children were contrasted with the contemporary U.S.
view favoring private child rearing in Franz v. United States. In another court of appeals case,
the judge again mentioned Rousseau in relation to the dilemma of introducing public law into the
private sector. The name of John Rawls, the leading contractarian political theorist of our times,
appears more than a dozen times. Rawls is cited, for example, in a dissenting opinion in a torts
case in which the judge adopted Rawls's methodology of reasoning about justice from the
original position.
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THE SOCIAL CONTRACT IS TOTALITARIAN AND OPPRESSIVE
THE SOCIAL CONTRACT DEPRIVES CITIZENS OF AUTONOMY AND MORALITY
Guyora Binder, Buffalo Criminal Law Review, 2002
DEMOCRACY AND PUNISHMENT: PUNISHMENT THEORY: MORAL OR POLITICAL?
In order to protect the autonomy of its members, society must coerce its members to behave
according to the dictates of morality, but thereby appears to deprive them of their autonomy and
so of any opportunity to act morally.
THE SOCIAL CONTRACT CANNOT BE CHALLENGED
United States Court of Appeals for the Third Circuit, 1998
Accessed 8-11-2010, http://www.lexisnexis.com/hottopics/lnacademic/
The plaintiffs submit that they are being forced into a contract with BTMUA involuntarily. The
plaintiffs briefly claim that the ordinance violates the federal and New Jersey state constitutional
provisions prohibiting laws impairing the obligation of contracts. The argument is plainly
lacking in merit, because he ordinance does not impair any contracts. The plaintiffs then argue
that general principles of contract law prohibit the township from charging fees for unwanted
water service. Their claim is mistaken, because government is not required to deal with citizens
on a purely contractual basis, as the mandatory connection cases discussed above demonstrate.
The plaintiffs may be required to obtain their water service from BTMUA and to pay for that
service just as they may be required to adhere to other laws that, one way or another, cost money.
The only forced contract is the broader social contract, which is part of the nation's polity and as
such is unchallengable here.
RIGHTS EXIST PRIOR TO THE SOCIAL CONTRACT
Luna, Erik. Professor, University of Utah. THE OVERCRIMINALIZATION PHENOMENON.
American University Law review.
But regardless of whether the inviolability of the individual stems from moral obligation or
beneficial outcomes, this libertarian imperative necessitates certain rights and guiding principles
for the interaction among individuals and between individuals and government. As usually
described in the literature, a right is held by the individual and serves as a constraint on the
action of all others, whether they are private citizens or representatives of the state. Rights
establish absolute limits on how an individual may be treated, and as such, they must be
respected at all times by other members of society. For deontological libertarians, rights exist
prior to the state rather than being established by fictive social contract, and just as importantly,
they limit the shape and authority that government can assume under this contract, with
individuals and collectives having an affirmative moral duty not to violate the rights of others
through their actions. And because human dignity is inherent and draws no exception among
beings, all individuals must be bearers of equal rights. In the words of David Boaz, "The
progressive extension of dignity to more people - to women, to people of different religions and
different races - is one of the great libertarian triumphs of the Western world," and "the kind of
equality suitable for a free society is equal rights."
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THE SOCIAL CONTRACT IS HARMFUL
THE SOCIAL CONTRACT IS EXCLUSIVE
Afua Hirsch. 2010. THE SOCIAL CONTRACT IS BEING RENEGOTIATED
Last week the Foundation for Law, Justice and Society gathered experts in law and social science
at London's Gray's Inn to question the impact of the austerity measures on the terms of the
"social contract". There is good reason to talk about the social contract now. The theory - drawn
from the traditions of Hobbes, Locke, Rousseau, Kant and John Rawls among others - tends to
go out of fashion during times of prosperity when improvements in personal security, heath and
general stability encourage the affluent to "opt-out" of any sense of collective agreement.
Historically it has been during times of recession that new terms have been negotiated Roosevelt's New Deal in Great Depression America, or the welfare state in post-war Britain. The
problem with the theory has always been how to account for the consent of those too poor,
ignorant or ill-equipped to take part in reasoning about the legitimacy of social arrangements.
Many argue that the inability of most people to take part in the social contract confers even more
responsibility on the state to provide facilities that will enable them to take part in the future.
SOCIAL CONTRACTS LEAD TO CUTS IN VITAL SOCIAL PROGRAMS
Editorial. 2007. NEW 'RAE DAYS' WILL NOT SAVE CITY.
Short-sighted Toronto city councillors, objecting to both a tax increase and the inevitable service
cuts that must result from a $575-million budget shortfall, are looking to the past for inspiration.
Their model is the money-saving "social contract" imposed on public sector workers in 1993 by
then-premier Bob Rae.
Unfortunately, this is a badly flawed model that has only limited practical use in Toronto today.
That has not stopped councillor Denzil Minnan-Wong from asking city staff to study and report
on across-the-board wage freezes for all of Toronto's municipal employees and the imposition of
unpaid days off as an alternative to transit cuts and other service reductions. "Cutting programs
that directly affect residents and families should be the last thing we consider," Minnan-Wong
says.
ROUSSEAU: SOCIAL CONTRACT SACRIFICES INDIVIDUALISM AND CHOICE
David M. Shapiro, 2002
SELECTED PHILOSOPHY TOPICS THAT ARISE FREQUENTLY
IN LINCOLN-DOUGLAS DEBATE, Accessed 8-12-2010,
http://debate.uvm.edu/NFL/rostrumlib/
Freedom meant making the General Will your will, so that in following the General Will you
followed your will. For example, if your society decided to burn you as a witch, you would have
to say "Yes, I'm a witch! Please burn me!" in order to be free.
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GOVERNMENTAL LEGITIMACY GOOD
GOVERNMENTAL LEGITIMACY IS NECESSARY FOR POLITICAL STRENGHT
Margaret Levi, Harvard government professor, Achieving Government Legitimacy—and Good
Government, 2006,
A legitimate ruler or government elicits willing deference and obedience by justifying its
exercise of authority with arguments the populace believes are normatively appropriate.i
Legitimacy is a concept meant to capture the beliefs that bolster that willingness. The appeal of
legitimacy as a feature of government has two aspects. First, the existence of legitimacy reduces
the transaction costs of governing by reducing reliance on coercion and monitoring. Second, its
existence denotes popular approval of government and governors or, at least, acceptance of their
right to rule.
GOVERNMENTAL LEGITIMACY FULFILLS MORAL OBLIGATION TO HELP YOUR
FELLOW MAN
Christopher H. Wellman, Assistant Professor of Philosophy at Guilford College,
Liberalism, Samaritanism, and Political Legitimacy, 2008,
What is striking, however, is that the moral dynamics of political legitimacy are echoic of those
between Antonio and Bathsheba.8 I will argue that, just as Antonio has no right to drive off in
solitude and leave Bathsheba vulnerable in Pleasantville, citizens have no right to be free from
politi-cal coercion and leave others in a condition of political instability. Just as Antonio's car is
the only vehicle in which Bathsheba can flee Pleas-antville, political society is the only vehicle
with which people can es-cape the perils of the state of nature
GOVERNMENTAL LEGITIMACY BENEFITS ALL CITIZENS
Christopher H. Wellman, Assistant Professor of Philosophy at Guilford College,
Liberalism, Samaritanism, and Political Legitimacy, 2008,
Indeed, along the spectrum with Antonio and Professor Murphy's lounger on one side and the
slave on another, a citizen's bur-den would apparently place her far closer to the latter than the
former. But this objector errs by forgetting that, while the costs of citizenship are frequently
plentiful and far-reaching, so are the benefits. Once one sub-tracts the benefits from the costs of
citizenship, one understands the plausibility of invoking samaritanism to justify political
coercion. This is why I specifically explained above that "a state may permissibly limit a person's
liberty because this restriction is necessary to provide the crucial goods of political stability to
that person and others" (p. 174, em-phasis added). At the time, my insistence that 'that person'
receive the goods of political stability might have seemed paternalistic and out of place. But we
now see that allotting benefits to all citizens is essential for political legitimacy not because of
paternalism, but because these benefits are necessary to ensure that the burden of citizenship is
not unreasonably costly
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GOVERNMENTAL LEGITIMACY BAD
GOVERNMENTAL LEGITIMACY PROMOTES NEGATIVE GOVERNMENTAL
CONTROL
Margaret Levi, Harvard government professor, Achieving Government Legitimacy—and Good
Government, 2006,
For Weber, the three ideal types of legitimate domination are legal, traditional, and charismatic.
But by his own accounting, traditional and charismatic authority rest on beliefs that may be
inconsistent with democracy, protection of human rights, or other factors that promote general
economic well-being and relative equity. History reveals numerous instances of rulers, deemed
legitimate by their subjects, exercising their authority to eliminate enemies, internal and external.
Legitimacy does not signify that power will be used to promote the good of the nation or of
humanity. It implies only that the populace acquiesces in the exercise of governmental power.
GOVERNMENTAL LEGITIMACY IS A RUSE
Thomas Franck, Professor of Law, 1992
THE EMERGING RIGHT TO DEMOCRATIC GOVERNANCE, American Journal of
International Law
In many nations, unfortunately, no such bargain was struck. Those who claim to govern cannot
demonstrate that they have fulfilled the requirements of the democratic entitlement, even if they purport
to recognize that entitlement. Senegal, for example, is a multiparty state with universal franchise and a
secret ballot, but the results of the 1988 national elections were rejected as fraudulent both by opposition
parties and by other social institutions. The other parties subsequently boycotted the 1990 local elections
and refused to accept the Government's legitimacy. n10 Increasingly, as will be demonstrated later in
this essay, governments whose legitimacy is questioned are turning to the international system
for that [*51] validation which their national polis is as yet unable to give. They do so to avoid
the alternative -- persistent challenge to authority by coups, countercoups, instability and stasis -and to enable themselves to govern with essential societal acquiescence. What they seek is
legitimation by a global standard monitored by processes of the international system.
GOVERNMENTAL LEGITIMACY IS TOO VAGUE AND IMEASURABLE TO PROMOTE
ANY SOCIAL BENEFITS
Margaret Levi, Harvard government professor,
Achieving Government Legitimacy—and Good Government, 2006,
Even if we leave these moral objections to the side, the concept itself is too imprecise for good
positive research. It is more a catch phrase than a concept. Deference, trust, duty, adulation, and
other attributes may interact with each other, but are any of them (all of them, some of them)
necessary conditions for legitimacy? And, presuming we can achieve conceptual clarity, how
does one measure such factors outside the laboratory? The major reason for unease, however, is
that legitimacy is generally discussed in terms of only one of its dimensions: the beliefs people
hold about the normative appropriateness of government structure, officials, and processes. Yet,
equally important—at least for those of us concerned about improving the quality of
government—are how individuals come to develop and accept current standards for normative
appropriateness and how they are able to assess the extent to which a government meets those
standards.
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Utilitarianism Good
Utilitarianism Creates Happiness
Lewis J. Walker. President of Walker Capital Management Corp. 2004. THE MORALITY OF
ECONOMICS HOW DO YOU DEFINE AND CONTRIBUTE TO A "JUST" SOCIETY? A
CLASSIC PHILOSOPHY TEXT OFFERS SOME GUIDANCE.
Rawls, who died in 2002, came from the deontological school of thought, incorporating duty and
moral obligation into his ethical views of a just society. Deontology-from the Greek word
"deon," meaning "obligation"-was championed by the German philosopher Immanuel Kant. It is
often contrasted with utilitarianism, which consists of theories associated with classical
economists like John Stuart Mill and Jeremy Bentham and ancient Greek philosophers like
Epicurus. Bentham's "rule of utility" proclaimed that good was whatever brings the greatest
happiness to the greatest number of people. John Stuart Mill saw that the rightness of an action
depended on the value of its consequences, and that the utility of that action could be rationally
estimated. Utilitarian ethics holds that rightness can be defined free of external regulation,
religious dogma, or social acceptability. Such thinking troubled ethicists from the JudeoChristian mold who felt that no man can be entirely free, and that God has imposed certain
obligations and duties on each individual relative to his or her fellow man. Classical liberalism
was a political philosophy grounded in individual freedom and limited government, which is
seen today as conservatism. Today's liberalism, which emerged primarily in the aftermath of the
Great Depression, is a neo-liberal Rawlsian notion of distributive justice.
Utilitarianism Brings Order
David M. Shapiro. Attorney. 1998.
SELECTED PHILOSOPHY TOPICS THAT ARISE FREQUENTLY IN LINCOLNDOUGLAS DEBATE.
There is a strong correlation between Utilitarian philosophy and an approach to the Social
Contract, which emphasizes order over liberty. Often times, sacrificing some liberty for order up
holds the greatest good for the greatest number. For example, we are searched for narcotics and
firearms at the airport, which arguably is a limitation of our Fourth Amendment right to be free
from unreasonable search and seizure, because a well-ordered society has an interest in
controlling drugs and terrorism. In short, emphasizing order over liberty often serves Utilitarian
principles.
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Utilitarianism provides for happiness and security
Binder, Guyora. Professor, State University of New York. 2000.
UTILITARIASM AND THE PUNISHMENT OF THE INNOCENT. Rutgers Law Journal.
Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of
utilitarian penology as an application of an "act-utilitarian" ethic governing individual behavior.
We contend that utilitarianism began as a normative theory of law and legal process aiming not
just at happiness in general, but also at security in particular, and that this theory was
methodologically committed to publicity, regularity and representativeness of legal decision
making. We argue further that utilitarian penology was the original and paradigmatic application
of this theory of law and legal process, and should be so understood. When understood in this
way, utilitarian penology cannot endorse punishment of the innocent, which violates either the
security aim, or the publicity condition, or both. Indeed, utilitarian penology cannot endorse any
program of official manipulation of the public that restricts information to a putatively utilitarian
elite. It is simply not true that eschewing unnecessary punishment of the guilty logically entails
willingness to punish the innocent.
Utility aims to achieve happiness
Mill, John Stuart. Philosopher.
ON THE CONNECTION BETWEEN JUSTICE AND UTILITY. 1863.
The creed which accepts as the foundation of morals, Utility, or the Greatest Happiness
Principle, holds that actions are right in proportion as they tend to promote happiness, wrong as
they tend to produce the reverse of happiness. By happiness is intended pleasure, and the absence
of pain; by unhappiness, pain, and the privation of pleasure. To give a clear view of the moral
standard set up by the theory, much more requires to be said; in particular, what things it
includes in the ideas of pain and pleasure; and to what extent this is left an open question. But
these supplementary explanations do not affect the theory of life on which this theory of morality
is grounded- namely, that pleasure, and freedom from pain, are the only things desirable as ends;
and that all desirable things (which are as numerous in the utilitarian as in any other scheme) are
desirable either for the pleasure inherent in themselves, or as means to the promotion of pleasure
and the prevention of pain.
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Utilitarianism Bad
Utilitarianism is Destructive
Gertrude Himmelfarb. Professor Emeritus at CUNY Graduate Center. 2004. ROMANTIC AT
HEART; THE EMOTIONAL LIFE OF AN EMINENTLY RATIONAL THINKER.
"I was born in London," Mill's Autobiography opens (after a paragraph justifying the writing of
an autobiography), "on the 20th of May, 1806, and was the eldest son of James Mill, the author
of the History of British India." This introduction was entirely fitting for an autobiography in
which the father plays a major part and the mother appears not at all. (The few sentences about
her in the original draft, expurgated by his wife, are dismissive, almost contemptuous.) It was his
father who was responsible for the young Mill's awesome education: Greek at the age of 3, Plato
(in Greek, of course) at 7, Latin (belatedly) at 8 and so on; the list of the books he read as a youth
constitutes something like a bibliography of Western civilization. He was also initiated in the
methodology and ideology of utilitarianism, and it was this that provoked the "crisis in my
mental history," as Mill put it -- the discovery that the rigorously analytic, rationalistic, utilitarian
philosophy was destructive of feeling, sentiment and imagination, and that life as he was meant
to live it, as a thinker and reformer in the Benthamite mode, was meaningless and heartless.
Utilitarianism is Morbid
Jonathan Imbody. VP Government Relations at Christian Medical Association. The Washington
Times. 2002. UTILITARIANISM IS NOT 'THE AMERICAN WAY'
Echoing 19th century utilitarian philosopher Jeremy Bentham, paralyzed actor Christopher
Reeve insisted at Tuesday's Senate hearing on human cloning, "Our government is supposed to
do the greatest good for the greatest number of people" ("Reeve touts cloning to Senate," March
6). He encouraged hesitant senators to allow, in the name of utility, the cloning and killing of
living human embryos to harvest their stem cells. Sadly, Mr. Reeve did not seem to grasp the
grim irony that severely disabled individuals like himself would hardly fare well in the utilitarian
calculus of anticipated benefit for the most people. If public policy truly were reduced to "the
greatest good for the greatest number," racism and exploitation would flourish, eugenics would
rule, and the fittest and favored would be released once and for all from the burden of those
perceived as useless. Only in a compassionate society, rooted in the doctrines of divinely given
human worth and justice for all, do vulnerable individuals have a hope and a future. That's
because such a society asks not, "What is expedient," but instead, "What is right?" Rather than
invoking utilitarianism to justify destructive human cloning research, patients seeking cures are
far better served by advancing research on adult stem cells, which offer them proven promise,
tested therapies, and a clear conscience.
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UTILITARIANISM VS. DEONTOLOGY
Utilitarianism is preferable to deontology
Larry Alexander, University of Chicago Law Review, 1999
ROOT OF FORMALISM: "WITH ME, IT'S ALL ER NUTHIN'": FORMALISM IN LAW
AND MORALITY, accessed 8-11-2010 http://www.lexisnexis.com/hottopics/lnacademic/
If, however, those punished are acting in accordance with their own or others' deontological
rights, then punishing them, though net beneficial, represents a utilitarianism of rights that is
inconsistent with rights as side constraints. For example, it is possible that there is a strong
deontological right to commit suicide under certain conditions, and that this right entails the right
to assist others and to be assisted in committing suicide. It is also possible that permitting
assisted suicide creates such dangers to other moral rights and values--such as the right not to be
killed involuntarily--that a rule forbidding assisted suicide minimizes rights violations overall.
Those who are punished under this rule and who are in fact exercising their moral right to assist
and are not violating others' moral rights are thus being punished not for their violation of rights,
but to minimize others' violations of rights. In such a domain of strong deontological rights--if
such a domain exists--formal legal rules appear morally problematic.
UTILITARIANIAM CAN COEXIST WITH DEONTOLOGY
James E. Macdonald, Caryn L. Beck-Dudley, American Business Law Journal, 2001
A NATURAL LAW DEFENSE TO THE EMPLOYMENT LAW QUESTION: A RESPONSE
TO RICHARD EPSTEIN, Accessed 8-11-2010
http://www.lexisnexis.com/hottopics/lnacademic/
These days Richard Epstein has come to think of himself as a "limited government utilitarian,"
having transformed himself from an earlier stage during which he was a "natural rights
libertarian." n87 At first blush, it would seem that utilitarianism and natural rights libertarianism
are inconsistent moral philosophies that would not permit an easy blending. Classical
utilitarianism, after all, is notorious for smothering and dissolving the separate interests of
individuals in its single-minded preoccupation with "the greatest happiness of the greatest
number." Libertarianism, on the contrary, would seem to occupy the very opposite extreme from
utilitarianism in the spectrum of possible moral philosophies, with its elevation and glorification
of liberty and property interests of individuals to the status of nearly absolute and inalienable
rights. In sum, libertarianism is a deontological theory, while utilitarianism is a consequentialist
one, and, it would seem, ne'er the twain shall meet. n88 Yet Epstein is convinced that his new
utilitarianism yields about the same old harvest of his favorite libertarian results as his earlier
natural rights starting point did. So how can he convert from a natural rights libertarian to a
social welfare utilitarian without much effort? . . . Epstein borrows his notion of social welfare
from the literature of welfare economics, and it is not so easily brushed aside as are the classical
utilitarian understandings of the greatest happiness principle. He eschews the old utilitarian
approaches that assumed value is objective, and interpersonal comparisons of utility could be
counted on in aggregating individual utilities. Rather, Epstein's position is subjective
utilitarianism: one state A of the world is better than state B if someone, by his own subjective
light, prefers A over B, while nobody, by their own subjective lights, prefers B over A. n94
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Utilitarianism Doesn’t Respect Human Rights
Utilitarianism will punish the innocent if necessary
Binder, Guyora. Professor, State University of New York. 2000. UTILITARIASM AND THE
PUNISHMENT OF THE INNOCENT. Rutgers Law Journal.
Many philosophers have asserted that utilitarianism requires framing and punishing an innocent
person when doing so will advance utility. Dozens of legal scholars have repeated some version
of this charge, generally citing it as the principal objection to utilitarian penology. Carritt and
H.J. McCloskey leveled the best known versions of this attack. Carritt reasoned that: if some
kind of very cruel crime becomes common, and none of the criminals can be caught, it might be
highly expedient, as an example, to hang an innocent man, if a charge against him could be so
framed that he were universally thought guilty; indeed this would only fail to be an ideal instance
of utilitarian 'punishment' because the victim himself would not have been so likely as a real
felon to commit such a crime in the future; in all other respects it would be perfectly deterrent
and therefore felicific.
Utilitarianism is harmed be the people’s sense of Justice
Mill, John Stuart. Philosopher. ON THE CONNECTION BETWEEN JUSTICE AND UTILITY.
1863.
IN ALL ages of speculation, one of the strongest obstacles to the reception of the doctrine that
Utility or Happiness is the criterion of right and wrong, has been drawn from the idea of justice.
The powerful sentiment, and apparently clear perception, which that word recalls with a rapidity
and certainty resembling an instinct, have seemed to the majority of thinkers to point to an
inherent quality in things; to show that the just must have an existence in Nature as something
absolute, generically distinct from every variety of the Expedient, and, in idea, opposed to it,
though (as is commonly acknowledged) never, in the long run, disjoined from it in fact.
UTILITARIANISM MORALLY INCORRECT
Louis Kaplow and Steven Shavell, Harvard Law Review, 2001
FAIRNESS VERSUS WELFARE, Accessed 8-11-2010
http://www.lexisnexis.com/hottopics/lnacademic/
Drawing an analogy to the obligation to tell the truth, Atiyah notes that many people's reluctance
to tell even "white lies" "does not prove that it is wrong to tell such a lie; it may merely
demonstrate how hard it is to act in unaccustomed ways." Id. He does not, however, use this
analysis in the way that we do. (His primary purpose is to refute the criticism of utilitarianism by
moral philosophers who argue that, because we all know that breaking any promise is morally
wrong and because utilitarianism allows for exceptions, utilitarianism must be incorrect.)
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UTILITARIANISM ISUNTRUE – MEN DON’T NECESSARILY MAX PLEASURE AND
MIN PAIN
Jeanne L. Schroeder, Professor of Law, Benjamin N. Cardozo School of Law. Oregon Law
Review. 2000. THE ECONOMICS OF RACE AND GENDER: RATIONALITY IN LAW AND
ECONOMICS SCHOLARSHIP
Indeed, psychoanalysis explains that the reason why people engage in [*228] inconsistent and
seemingly self-destructive behavior is not merely conflicting wills or ignorance, but because
utilitarianism is incorrect in assuming that subjects seek to maximize their pleasure and minimize
their pain. Rather, the pleasure principle is always inextricably linked to the death drive. The
theory of jouissance explains that the achievement of ecstacy - as opposed to mere pleasure or
happiness - is often achieved through displeasure and pain. The theory of the death drive
explains how the utilitarian attempt to pursue everyday pleasure can lead to suffering.
UTILITARIANISM UNMEASURABLE
James E. Macdonald, Caryn L. Beck-Dudley, Dean of the College of Business at Florida State
University. American Business Law Journal, 2001
A NATURAL LAW DEFENSE TO THE EMPLOYMENT LAW QUESTION: A RESPONSE
TO RICHARD EPSTEIN, Accessed 8-11-2010
http://www.lexisnexis.com/hottopics/lnacademic/
Earlier utilitarians, Jeremy Bentham, n89 J. S. Mill, n90 Henry Sidgwick, n91 and G. E. Moore, n92
were notoriously unable to give any intelligible, useful or durable account of "the greatest
happiness" principle. Bentham's "felicific calculus" was recognized as something of an
embarrassment from the outset, what with its radical reduction of all goods and evils to quantities
of pleasures and pains. J.S. Mill soon thought it necessary for utilitarians to make qualitative
(i.e., not merely quantitative) distinctions between higher and lower pleasures; but, of course, in
doing so he implicitly gave up the assumption of the single yardstick of quantities of pleasure
through which diverse goods and evils could be commensurate and made ready for addition and
subtraction. And, with G. E. Moore, the entire reductionist project of defining the good seemed
shipwrecked once and for all- utilitari-ans were obliged to recognize an irreducible plurality of
goods that, somehow, were to be put together.
UTILITARIANISM UNCONSTITUTIONAL – VIOLATES INDIVIDUALS ‘ RIGHTS
Geoffrey R. Stone is Harry Kalven, Jr. Professor of Law at the University of Chicago, 1985
INDIVIDUAL RIGHTS AND MAJORITARIAN: THE SUPREME COURT IN TRANSITION,
accessed 8-11-2010 http://www.cato.org/pub_display.php?pub_id=917
In his 1984 Sibley Lecture, Solicitor General of the United States Rex E. Lee defended the
Supreme Court's record in the 1983 Term against three criticisms: (1) the Court too often sided
with the government "over the individual" and surrendered its role as "a protector of
constitutional rights"; (2) the Court abandoned principled constitutional interpretation in favor of
"cost-benefit' analysis; and (3) as a result of the 1983 Term, "Americans are less free."
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Economic Growth Good
Capitalisms are good as they promote innovation and thus advancing society.
Schlegel, John. 2008. Professor of Law, State University of New York. THINKING THROUGH
LAW’S QUESTION OF CLASS, ECONOMICS, AND INEQUALITY. Buffalo Law Review.
Accessed 8/12/10.
This evaluative aspect is rooted in the common macro-economic concern with growth. For the
authors, technological advance yields economic growth when entrepreneurial innovation is
translated into large-scale production of the resulting products or services. The mechanics of this
observation turn on two things. The first is a distinction between replicative entrepreneurial
activity - think of an additional McDonald's franchisee in 1970 - and innovative entrepreneurial
activity, the creation and introduction of disruptive technology that brings forth Schumpeterian
"creative destruction." The second is the importance of the large-scale firm for the
commercialization of entrepreneurial innovation. Thus, capitalisms are good to the extent that
they allow or encourage both innovative entrepreneurial activity and the translation of the fruits
of innovation by large-scale firms into salable products or services so as to facilitate economic
growth. Capitalisms are bad capitalisms to the extent that they hamper innovative entrepreneurial
activity and its translation into new products or services so as to impede growth.
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Economic Growth Bad
Hegemony of Capitalism
Economic growth leads to further want and ignoring morals
Hedges, Chris. 2009. Graduate, Harvard Divinity School. THE FALSE IDOL OF
UNFETTERED CAPITALISM. Commondreams.org, accessed 8/12/10.
The consumer goods we amass, the status we seek in titles and positions, the ruthlessness we
employ to advance our careers, the personal causes we champion, the money we covet and the
houses we build and the cars we drive become our pathetic statements of being. They are squalid
little monuments to our selves. The more we strive to amass power and possessions the more
intolerant and anxious we become. Impulses and emotions, not thoughts but mass feelings,
propel us forward. These impulses, carefully manipulated by a consumer society, see us
intoxicated with patriotic fervor and a lust for war, a desire to vote for candidates who appeal to
us emotionally or to buy this car or that brand. Politicians, advertisers, social scientists, television
evangelists, the news media and the entertainment industry have learned what makes us respond.
It works. None of us are immune. But when we act in their interests we are rarely acting in our
own. The moral philosophies we have ignored, once a staple of a liberal arts education, are a
check on the deluge. They call us toward mutual respect and self-sacrifice. They force us to
confront the broad, disturbing questions about meaning and existence. And our callous refusal to
heed these questions as a society allowed us to believe that unfettered capitalism and the free
market were a force of nature, a decree passed down from the divine, the only route to prosperity
and power. It turned out to be an idol, and like all idols it has now demanded its human sacrifice
Economic Inequality is not necessary for economic growth
Marcelli, Enrico. 2000. Professor of Economics, University of Massachusetts. ECONOMIC
GROWTH AND INEQUALITY IN SAN DIEGO COUNTY. California and Western Law
Review. Accessed 8/12/10
The assumption that inequality is a necessary condition for competition and that competition
alone drives economic growth is based on two socially and economically detrimental "enabling
myths." An enabling myth is one that neoinstitutional economists claim "enables those who
benefit from the status quo to keep on benefiting" at the expense of society as a whole. The first
is the "market" myth, which maintains that the distribution of income is determined by an
unfettered demand for, and supply of, labor. This is a myth, and inequality is not inevitable
because earnings inequality also exists due to socially established institutions such as seniority
and other structures of authority in both public and private enterprises. Thus, more than the
market explanation is required to justify extant inequality. A second "hierarchy" myth claims that
persons in positions of authority are there because they deserve to be, and thus should receive
higher compensation than others not similarly situated. They have "paid their dues," so to speak,
and their [*310] earnings and benefits are thus determined not solely by market forces but by
their position in the hierarchy.
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Impacts: Economic Growth
Economic Growth is a danger to the world
Jackson, Tim. 2009. Economics Commissioner, Sustainable Development Commission.
ECONOMIC GROWTH HAS FAILED US. WHAT’S THE ALTERNATIVE?
Commondreams.org, accessed 8/12/10.
Economic growth is supposed to deliver prosperity. Higher incomes should mean better choices,
richer lives, and improved quality of life for us all. That at least is the conventional wisdom. But
things haven't always turned out that way.
Growth has delivered its benefits, at best, unequally. A fifth of the world's population earns just 2
per cent of global income. Inequality is higher in the OECD nations than it was 20 years ago. Far
from improving the lives of those who most needed it, growth let much of the world's population
down. Wealth trickled up to the lucky few. Fairness (or the lack of it) is just one of several
reasons to question growth. As the economy expands, so do its ecological impacts. In the last
quarter of a century an estimated 60 per cent of the world's ecosystems have been degraded.
Global carbon emissions have risen by 40 per cent since 1990. Significant scarcity in key
resources - such as oil - may be less than a decade away.
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MORALITY BAD
DEFINITION OF MORALITY
Bernard Gert, Stone Professor of Intellectual and Moral Philosophy “Stanford Encyclopedia of
Philosophy,” 2008
THE DEFINITION OF MORALITY, Accessed 8-11-2010
http://plato.stanford.edu/entries/morality-definition/
Dictionary definitions of referring terms are usually just descriptions of the important features of
the referents of those terms. Insofar as the referents of a term share the features that account for
why that term refers to those referents, the term is not regarded as ambiguous. “Morality” is an
ambiguous term. What “morality” refers to when used in the descriptive sense does not have
most of the important features of what “morality” refers to when used in the normative sense.
Further, accepting a descriptive definition of morality need have no implications about how a
person should behave. Accepting a normative definition of morality commits a person to
regarding some behavior as immoral, perhaps even behavior that he is tempted to perform.
Because accepting a normative definition of morality involves this commitment it is not
surprising that there are serious disagreements about what normative definition to accept.
MORALITY HAS HIGH POLITICAL COSTS
Stephen R. Munzer, professor of law at UCLA, Harvard Journal of Law & Technology, 2007,
Few need reminding that hESC research is a tricky, even explosive, moral and political issue.
Both supporters and opponents of such research might want medical groups to ensure that their
members never carry out research that comes within a country mile of moral wrongdoing, and
research into the creation of human-nonhuman chimeras could conceivably come within that
bound. Likewise, social conservatives and liberals alike might agitate for legal regulations that
forbid research that carries the faintest odor of immorality. This point is not intended to be a
slippery slope argument. Rather, I argue only that sometimes it is imprudent to incur the high
political costs of trying to get social policy or the law to conform exactly to morality. The costs
of attempting to achieve that conformance include both the difficulties of getting social policies
or legal regulations implemented and the potential loss of faith in public institutions (reputational
costs).
MORALITY IS ECONOMICALLY INEFFICIENT
Henry Mintzberg, Cleghorn Professor of Management Studies at the Desautels Faculty of
Management of McGill University in Montreal, Quebec, Canada A Note on that Dirty
Word"Efficiency", 1982,
Efficiency gets a bad name because it inevitably means measurable efficiency, with three
unfortunate consequences. Because costs are typically more easily measured than benefits,
efficiency all too often reduces to economy. Because economic costs can usually be more easily
measured than social costs, efficiency often produces an escalation in social costs, which are
treated as "externalities." Because economic benefits are typically more easily measured than
social benefits, efficiency often drives the organization toward an economic morality which can
amount to a social immorality.
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MORALITY OPPOSES THE JUSTICE SYSTEM WHICH LEADS TO ANARCHY
Lloyd R. Cohen, Associate Professor of Law at George Mason University, Review of: A
CRIME OF SELF-DEFENSE: BERNHARD GOETZ AND THE LAW ON TRIAL.. Pp. xi, 253,
1989,
To some, it might seem odd that in a nation with such a distinguished record of successful selfgovernment, so many Americans have defended and even praised what, disingenuous posturing
aside, was a fairly obvious act of vigilantism by Bernhard Goetz. Why have otherwise
respectable citizens chosen to reject the standard response to the vigilante that the punishment of
wrongdoers is to be left to the institutions of the state and that the ordinary citizen must not take
the law into his own hands? Do they fail to appreciate that there is much to be lost by our
civilization if we fall away from the rule of law? Vigilantes exist for they believe that justice is
far better served by their methods as opposed to the formal processes of government. They feel
that the law enforcement bureaucracy is totally unresponsive to the needs of the citizenry and in
many cases they perceive the government as being disinterested in the public safety of the
various communities. As a result they sense a moral obligation "to take the law in their own
hands" thus circumventing all of the established legal bodies.
No Formula for Morality
Mochtar Buchori, writer for the Jakarata Post, “Morality a Piece of the National Development
Puzzle.” , access date: 8/12/2010
Morality is a cultural issue. So the main problem facing Indonesia today is not economic, but
cultural. And cultural problems are much harder to solve than economic ones. Theoretically, any
economic dilemma can be solved through economic measures that regulate forces, which are
responsible for that particular quandary. But whether these economic measures will be carried
out faithfully and honestly, well that is no longer a problem of economics. That is a cultural
problem. I was confounded when I heard this explanation. I have been conditioned to think that
economic problems are the most basic and the most important among all the enigmas that beset
this country. I was not prepared for such a strange perspective. My friend went on to expose and
explain his view. He said the disappointing factor was that we did not seem to be aware that such
cultural problems existed. We have not done anything to solve our morality problems or any
other cultural obstacles. Compared to what we have done to analyze and solve our economic
problems, our attempts to solve cultural issues have been infinitesimal.
Morality Is A Poor Value for Making Judgments
Societal Morality: A Contradiction in Terms
Alexis de Tocqueville, French political thinker and historian, Free Market Mojo delivered by
Newstex access date: 8/12/110
Morality is certainly important for the members of a society to possess. But society, as a whole,
has nothing to gain from possessing its own morality. What good is a morality if instituted
through the use of force? If citizens will not act morally by their own accord, they certainly will
not do so under compulsion. And even if compulsory morality keeps the symptoms of moral
decay in check for a time, an immoral society will reach the same end eventually, regardless of
any government intervention. Moreover, any societal adoption of a given morality constitutes a
violation of individual rights. Morality lies in the realm of the mind and conscience, government
authority only pertains to the realm of action.
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MORALITY GOOD
MORALITY DICTATES ALL DECISIONS
Garth Kemerling, American Philosopher Kant: The Moral Order, 2001,
According to Kant, then, the ultimate principle of morality must be a moral law conceived so
abstractly that it is capable of guiding us to the right action in application to every possible set of
circumstances. So the only relevant feature of the moral law is its generality, the fact that it has
the formal property of universalizability, by virtue of which it can be applied at all times to every
moral agent. From this chain of reasoning about our ordinary moral concepts, Kant derived as a
preliminary statement of moral obligation the notion that right actions are those that practical
reason would will as universal law.
MORALITY IS THE BASIS OF JUDGEMENT
Stanford Encyclopedia of Philosophy First published Wed Apr 17, 2002; substantive revision
Mon Feb 11, 2008
When “morality” refers to the codes of conduct of different societies, the features that are
essential, in addition to some element related to avoiding and preventing harm, are that morality
is a code of conduct that is put forward by a society and that members of that society use it as
their guide to behavior. In this descriptive sense, “morality” can refer to codes of conduct of
different societies with widely differing content, and still be used unambiguously in the same
way that “law” is used unambiguously even though different societies have laws with widely
differing content. However, there are now other descriptive senses of “morality.” In the sense
most closely related to the original descriptive sense, “morality” refers to a guide to behavior put
forward by some group other than a society, for example, a religious group. When the guide to
conduct put forward by a religious group conflicts with the guide to conduct put forward by a
society, it is not clear whether to say that there are conflicting moralities, conflicting elements
within morality, or that the code of the religious group conflicts with morality. Members of the
society that are also members of a religious group may regard both guides as elements of
morality and differ with regard to which of the conflicting elements of the moral guide they
regard as most important. There are likely to be significant moral disputes between those who
regard different elements as more important.
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MORALITY SUPPORTS ECONOMIC GROWTH
George C. Bitros, Emeritus Professor of Economics in the Department of Economics of the
Athens University of Economics Morality, “Institutions and economic growth: Lessons from
ancient Greece,” 2006.
We show that the character and the morality of citizens are important ingredients of economic
growth because they go hand in hand with the great institutions of private property, democracy,
and free markets. Our approach enables us to establish this result by reference to the structure
and performance of the ancient economies of Athens and Sparta during the period 490-338 BC.
Athens grew vastly wealthier than Sparta essentially because its institutions were optimally
adjusted to confront the basic scarcity of grains, whereas the institutions of Sparta were
optimally adjusted to sustain its military supremacy. However, in both cases there emerged
systems of morality, which secured the operating efficiency of their institutions. Therefore, poor
countries in search of potent strategies for rapid economic growth should not just try to emulate
the institutions of economically advanced countries. At the same time, they should put the
emphasis of their efforts to setting up agoge systems, so as to infuse into the character of their
citizens compatible “ethos”. For, without the latter, no matter how successfully they adapt the
institutions of democracy and free markets, rapid economic growth will be inhibited from the
lack of an environment of generalized morality.
MORALITY SUPPORTS SELF ACTUALIZATION
Jeanne L. Schroeder, Professor of Law B.A., 1975, Williams College; J.D., 1978, Stanford
University SSRN, BONDAGE, FREEDOM & THE CONSTITUTION: THE NEW SLAVERY
SCHOLARSHIP AND ITS IMPACT ON LAW AND LEGAL HISTORIOGRAPHY: PRIVATE
LAW AND UNITED STATES SLAVE REGIMES: ARTICLE: COMMENT ON RUSSELL:
HEGEL'S SLAVES, BLACKSTONE'S OBJECTS, AND HOHFELD'S GHOSTS: A
COMMENT ON THOMAS RUSSELL'S IMAGERY OF SLAVE AUCTIONS Cardozo Law
Review, 1996,
The one thing that cannot rightly serve as the object of property is that which is capable of selfconsciousness - another person. This is because the teleology of property is the self-actualization
of human freedom through the development of subjectivity. To treat another person as an object
of property is to attempt to attain subjectivity by depriving another human being of her
subjectivity. As such, it is not merely self-contradictory and self-defeating; it is an abstract
wrong. It is an affront to the very nature of what it is to be a person. It is a wrong that pre-exists
morality and ethics, so that no moral or ethical regime can exist, and no individual selfactualization can exist - if slavery exists.
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MORALITY OFFERS A CORRECTIVE TO UTILITARIANISM
Samuel Scheffler, University Professor and Professor of Philosophy and Law at NYU “Human
Morality,” New York: Oxford University Press. 1992. Pp. 150. $ 26.
I believe that it was opposition to utilitarianism, which first bred arguments claiming in one way
or another that a view of morality according to which morality is very demanding is mistaken
just because morality cannot be so demanding. On first hearing, this type of argument is liable to
seem suspect. Humans should be fit for morality, and unfortunately too often they are not - one is
inclined to say. If we find morality too demanding the fault is with us and not with morality. The
idea of human morality, in the sense of a morality fit for humans in not being too demanding, is
surely, one is tempted to say, a typical modern perversion of the truth. If, however, my
conjecture is correct and consideration of the demandingness of morality arose and gained
currency in the context of discussions of the merits and demerits of utilitarianism, then this
dismissive response is shortsighted. Utilitarianism, whatever its shortcomings, was the first
widely accepted view of morality which gave the interests of every sentient being direct and
exclusive weight in distinguishing morally right from morally wrong action. To be sure other
views of morality held that all human or all rational life is as such of (equal) value. But for no
previous view was the road from value to right action so direct, being neither mediated by nor
mixed with other considerations. That is why utilitarianism - and any other view of morality,
which shares this feature of it - gave rise to concern about the demandingness of morality. If it is
wrong for me to act in my own interest whenever I could instead do something that would serve
the interests of others more than any act open to me could serve my own interest, then arguably I
am only rarely allowed to act in my own interest. This is absurd, and a view of morality of which
this is a consequence is surely wrong. Hence the eagerness of utilitarians and others with similar
moral views to argue [*1298] that no such conclusion follows from their way of understanding
morality. In the last thirty years or so the debate has moved a long way beyond the crude
formulations of the previous paragraph. Yet it has never been so carefully and systematically
examined as in Samuel Scheffler's Human Morality. n1 Scheffler distinguishes four responses to
a view of morality which presents it as being very demanding. Apart from denying its
correctness and insisting that morality's demands are moderate, one can also seek to moderate the
consequences of a demanding morality without denying that it is demanding, either by claiming
that there are actions which are not at all subject to moral judgment (the question of the scope of
morality), or by claiming that it is sometimes rational to act against morality since morality is
sometimes overridden by other considerations (the question of the authority of morality). Finally
one may object to a view of morality because it presents it as demanding by being over intrusive,
that is by requiring that every action however trivial (taking a sip from the mug of coffee in front
of me) be preceded by a deliberation of the moral permissibility of the act. This raises the
question of the role of morality in our practical deliberations. Scheffler's own view is that
morality's scope is pervasive, that is that moral considerations bear on any conceivable action,
but that it does not impose a pervasive presence in our deliberations. Except when special
reasons apply one acts morally if one acts as morality directs and would not have done so had
one been aware of moral considerations against the act unless they proved insufficient to prohibit
the act. n2 That is, in the majority of cases moral (or morally explicit) considerations need not be
present to one's thought. All that is morally required is that had moral reasons against the action
been perceptible they would have been given the consideration they deserve. Additionally and
most importantly, morality's demands are - according to Scheffler - moderate and not
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demanding. On the authority of morality Scheffler reserves judgment. He does not believe that
no consideration can ever override the ultimate moral verdict on an action. But he leaves the
question open.
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Freedom of Expression Good
Freedom of Expression is too limited
Hardy, David. 2008. Professor, University of Arizona. A FRAMING ERA VIEW OF THE BILL
OF RIGHTS. Northwester University Law Review Colloquy. Accessed 8/12/10.
Tucker is ahead of his time, taking a robust view of Americans' rights. Even in time of "national
struggles" limitations on freedom of expression are traps rather than benefits and marks of
tyrannical tendencies; Tucker cites as illustrative Virginia's wartime limit on pro-British
expression. Tucker's reference to freedom from exemption from "coercion" brings to mind the
modern concept of "chilling effects." In all these things, the eighteenth-century academic is
surprising modern: he seeks no "clear and present danger" test, even in wartime. While we
cannot know how he would view modern issues such as obscenity, civil defamation, or political
campaign regulation, his equation of freedom of thought with freedom of expression, and his
repudiation of wartime Virginia statutes suggests that he would find the modern First
Amendment tests, if anything, to be overly permissive of regulation. Tucker here argues the First
Amendment's language is too narrow: the citizenry should be able, not only to petition, but to
instruct, their legislators. The right to instruct had been guaranteed in several State constitutions,
and in the First Congress, Tucker's brother Thomas proposed its addition to the Federal Bill of
Rights.
Non-Network Neutrality is a threat to Freedom of Expression. Connor, Michael. 2007.
Executive Director, Open MIC. NETWORK NEUTRALITY, FREEDOM OF EXPRESSION AT RISK.
Commondreams.org, accessed 8/12/10.
As consumers, we have a right to know in advance when and if a service we pay for may be
intentionally disrupted by our provider. If we're lawyers who do peer-to-peer file sharing of
large digitized documents over the Internet, we may want to use an Internet service provider
other than Comcast. Finally, as citizens of a democracy whose most cherished freedom is that
of expression, we should be outraged whenever anyone is silenced without very good and
clearly stated reasons. So that's what we're asking for: an open, candid and public discussion of
the reasons for such actions. Our hope is that such a discussion will lead us to a future where
media, information and communication companies profit most by amplifying rather than
restricting our freedom of expression.
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Internet Neutrality is mandated by Free Speech
Krasovec, Jay. 1997. Professor, University of Akron. CYBERSPACE: THE FINAL FRONTIER
FOR REGULATION? Akron Law Review. Accessed 8/12/10.
The First Amendment is the cornerstone of our Independence. Society has come to value the
freedom of speech and expression more than any other of our Constitutional rights. Thus, the
First Amendment and its protections have had to continuously adapt to new and unique
circumstances and technologies in order to secure these ideals. […] The basic principles of free
speech mandate the widest and most far reaching means of communication possible. The
Internet's ability to almost instantaneously transmit information and ideas to millions of people
and this Nation's strong reaffirmance in unrestricted political speech mandates that our basic
First Amendment rights survive online. "The life of the First Amendment has not been logic, it
has been experience." Our history and experience tells us that we afford "greater weight to the
value of free speech than to the dangers of its misuse." The potential and fear of misuse of the
Internet, cannot justify over-reaching regulations encroaching on basic civil liberties.
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Freedom of Expression Bad
Freedom of Expression must be limited if it harms others
Mills, John Stuart. 1869. Philospher. ON LIBERTY: OF INDIVIDUALITY, AS ONE OF THE
ELEMENTS OF WELL BEING. Bartleby.com, accessed 8/12/10.
Acts of whatever kind, which, without justifiable cause, do harm to others, may be, and in the
more important cases absolutely require to be, controlled by the unfavourable sentiments, and,
when needful, by the active interference of mankind. The liberty of the individual must be thus
far limited; he must not make himself a nuisance to other people. But if he refrains from
molesting others in what concerns them, and merely acts according to his own inclination and
judgment in things which concern himself, the same reasons which show that opinion should be
free, prove also that he should be allowed, without molestation, to carry his opinions into
practice at his own cost.
Freedom of Speech only allows communicative action.
Solum, Lawrence. 1989. Professor of Law, Loyola Law School. A THEORY OF THE FIRST
AMENDMENT FREEDOM OF SPEECH. Northwestern University Law Review. Accessed
8/13/10.
An important corollary is the proposition that communication is intersubjective; speech acts
involve both speakers and listeners. In addition, the theory of communicative action makes a
distinction between communicative action -- oriented to the coordination of behavior through
rational agreement -- and strategic behavior -- the use of speech to manipulate, [*56] coerce, or
deceive. I argue that a theory of free speech can incorporate this distinction to mark the
boundaries of the right to free speech: freedom of speech is freedom to engage in communicative
action, not strategic action.
Freedom of Expression can be limited in times of War
Holmes, Oliver. 1919. Supreme Court Justice. SCHENCK V. UNITED STATES. Findlaw.com,
accessed 8/13/10.
The most stringent protection of free speech would not protect a man in falsely shouting fire in a
theatre and causing a panic. It does not even protect a man from an injunction against uttering
words that may have all the effect of force. The question in every case is whether the words used
are used in such circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree. When a nation is at war many things that might be said in time
of peace are such a hindrance to its effort that their utterance will not be endured so long as men
fight and that no Court could regard them as protected by any constitutional right.
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Justice Good MPX
JUSTICE IS ACHIEVABLE
Feeley, Malcolm M., Claire Sanders Clements Dean's Chair Professor of Law, 1992, Edited by
Howard S. Erlanger, Voss-Bascom Professor of Law and Professor of Sociology at the
University of Wisconsin, Madison, And Jennifer Earl, 2008 American Bar Foundation
Law and Social Inquiry
REVIEW ESSAY: THE PROCESS IS THE PUNISHMENT: THIRTY YEARS LATER,
accessed 8-11-2010, http://www.lexisnexis.com/hottopics/lnacademic/
Another innovation in TPP is Feeley's discussion of the disconnect between substantive justice
and procedural justice. Certainly the distinction [*758] between procedural and substantive
justice was not new, but his defense of substantive justice was somewhat novel. To briefly recap,
Feeley argues that most defendants do not, in practice, enjoy extensive procedural protections,
but most cases are nonetheless handled justly from a substantive perspective. In fact, rejecting
claims that procedural justice leads to substantive justice, Feeley opens the book by contending
that substantive justice is a separate and achievable form of justice, and he closes the book
arguing that even when procedural protections are not in full use, "Officials do not abandon this
concern with justice, but rather they create a sense of justice which is compatible with their
concern for speed and efficiency"
JUSTICE, ACCORDING TO LAW, LIMITS POLITICS
Roger Pilon, Director of Cato's Center for Constitutional Studies San Francisco Daily Journal,
2003
TOWARD THE RESTORATION OF LAW, accessed 8-11-2010, https://www.cato.org/dailys/0117-03.html
The whole point of having law -- and constitutional law in particular -- is to discipline politics
and the raw power it amounts to. For in the end, the triumph of politics is the death of law -- and
with it, reason and justice.
Social Justice must be society’s core value
Hall, David. Professor, University of Arkansas. GIVING BIRTH TO A RACIALLY JUST
SOCIETY IN THE TWENTY-FIRST CENTURY. Little Rock Law Review, 1999. 8-11-2010
Social justice is not a static state. It is not a place we reach. It is a process that we are constantly
and forever engaged in. If we are to give birth to a new century, then social justice cannot be an
after thought to a well-planned strategy for the 21st Century. It must be the core value of any
viable policy or plan for the future. Otherwise, we will continue to live in a society where we
make tremendous strides in the areas that are our strengths, and continue to be stymied in the
areas where our greatest opportunities for growth exist. If we dismiss this profound calling by
labeling it as merely politically correct rhetoric, then we will have forsaken the religious,
spiritual and moral foundations of our lives. n26 So, social justice cannot be the period after the
sentence about our accomplishment and identity. It must be the core value through which we
identify ourselves.
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Justice coincides with, subsumes, and includes morality
Mill, John Stuart. Philosopher. ON THE CONNECTION BETWEEN JUSTICE AND UTILITY. 1863.
It appears from what has been said, that justice is a name for certain moral requirements,
which, regarded collectively, stand higher in the scale of social utility, and are therefore of more
paramount obligation, than any others; though particular cases may occur in which some other
social duty is so important, as to overrule any one of the general maxims of justice. Thus, to
save a life, it may not only be allowable, but a duty, to steal, or take by force, the necessary
food or medicine, or to kidnap, and compel to officiate, the only qualified medical practitioner.
In such cases, as we do not call anything justice which is not a virtue, we usually say, not that
justice must give way to some other moral principle, but that what is just in ordinary cases is, by
reason of that other principle, not just in the particular case. By this useful accommodation of
language, the character of indefeasibility attributed to justice is kept up, and we are saved from
the necessity of maintaining that there can be laudable injustice.
JUSTICE INCREASES EQUALITY
Samuel Freeman, Avalon Professor in the Humanities, Professor of Philosophy and Law,
Stanford encyclopedia of Philosophy, 2008
ORIGIONAL POSITION, Accessed 8-11-2010 http://plato.stanford.edu/entries/originalposition/
Rawls contends that the most rational choice for the parties in the original position are the two
principles of justice. The first principle guarantees the equal basic rights and liberties needed to
secure the fundamental interests of free and equal citizens and to pursue a wide range of
conceptions of the good. The second principle provides fair equality of educational and
employment opportunities enabling all to fairly compete for powers and prerogatives of office;
and it secures for all a guaranteed minimum of the all-purpose means (including income and
wealth) that individuals need to pursue their interests and to maintain their self-respect as free
and equal persons.
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JUSTICE IS SOUND VALUE PREMISE
There are many different possibilities for criteria for justice
Joseph William Singer, Bussey Professor of Law, The Yale Law Journal, 1984. THE PLAYER
AND THE CARDS: NIHILISM AND LEGAL THEORY accessed 8-11-2010
There are many different possibilities for criteria for justice: Rights protection is the core
standard for justice. You can use the social contract (in a Lockean sense) to say that we have
"contractual obligations" to act a certain way because we have consented to limiting our rights.
You can also make arguments saying that because someone has not given consent to a rights
limitation, such rights violation is unjust. You can be as specific as you want with rights-based
criteria for justice. You can look at negative, positive, social and individual rights, just to name a
few.
Justice is Good for Our Health
Norman Daniels, Mary B. Saltonstall Professor of Population Ethics and Professor of Ethics and
Population Health 2000. JUSTICE IS GOOD FOR OUR HEALTH. Accessed 8-11-2010
These social determinants offer a distinctive angle on how to think about justice, public health,
and reform of the health care system. If social factors play a large role in determining our health,
then efforts to ensure greater justice in health care should not focus simply on the traditional
health sector. Health is produced not merely by having access to medical prevention and
treatment, but also, to a measurably greater extent, by the cumulative experience of social
conditions over the course of one’s life. By the time a sixty-year-old heart attack victim arrives at
the emergency room, bodily insults have accumulated over a lifetime. For such a person, medical
care is, figuratively speaking, "the ambulance waiting at the bottom of the cliff." Much
contemporary discussion about reducing health inequalities by increasing access to medical care
misses this point. We should be looking as well to improve social conditions--such as access to
basic education, levels of material deprivation, a healthy workplace environment, and equality of
political participation--that help to determine the health of societies.
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Justice is Bad for Society
“Social Justice” initiatives harm society
Hall, David. Professor, University of Arkansas. GIVING BIRTH TO A RACIALLY JUST
SOCIETY IN THE TWENTY-FIRST CENTURY. Little Rock Law Review, 1999. Accessed 811-2010
Social justice is not charity. It is not something we give to others, it is something we do for
ourselves. In the words of Professor Robert Rodes, "I do not owe any poor person a share of my
wealth, but I owe every poor person my best efforts to reform the social institutions by which I
am enriched and he or she is impoverished." Justice is a virtue that moves us to render others
what is due them, not what we want to give them. It serves as the basis of our integrity and
legitimacy as individuals and as a society. If those social institutions are not reformed so that the
poor and oppressed truly have access and substantive opportunities to fulfill their dreams, then
we have not only undercut the integrity of the system, we have created perpetual nightmares for
many. These nightmares produce the social diseases of crime, brutality and homelessness that
will ultimately end up at all of our doors.
Egalitarian justice leads to the loss of an open society
Brunner, Karl, founder of Jornal of Money, Credit and Banking, the Journal of Monetary
Economics, and the Carnegie-Rochester Conference Series of Public Policy. ECONOMIC
INEQUALITY AND THE QUEST FOR SOCIAL JUSTICE, 1998. Cato Institute.
A society guided by an egalitarian vision is committed to choose institutions that establish
pervasive instruments of political repression together with conditions of poverty and stagnation.
Our search for justice needs certainly to look elsewhere for humane solutions. The process
concept of justice deserves substantially more serious attention than it has been granted in the
public arena. This conception of justice addresses a fundamental question bearing on the nature
of social and political institutions that offer members of society the best opportunity to shape
their lives and improve their lot. Such arrangements unavoidably allow a persistent inequality in
the distributions of income. This does not mean, however, that specific social groups are
permanently locked into particular positions of the income distribution. An open society
produces substantial social circulation within the income distribution pattern over successive
generations. We need also to emphasize once that a society guided by the egalitarian principle
will necessarily develop institutions of control and management that ultimately maintain
substantial inequality of economic status and political power.
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JUSTICE FAVORS THE STRONG, OVER THE JUST
Eric Brown, Associate Professor of Philosophy
Washington University in St. Louis, Stanford Encyclodpedia of Philosophy, 2009
PLATO’S ETHICS AND POLITICS IN THE REPUBLIC, Accessed 8-11-2010
http://plato.stanford.edu/entries/plato-ethics-politics/
Predictably, Cephalus and then Polemarchus fail to define justice in a way that survives Socratic
examination, but they continue to assume that justice is a valuable part of a good human life.
Thrasymachus erupts when he has had his fill of this conversation (336a-b), and he challenges
the assumption that it is good to be just. On Thrasymachus' view (see especially 343c-344c),
justice is conventionally established by the strong, in order that the weak will serve the interests
of the strong. The strong themselves, on this view, are better off disregarding justice and serving
their own interests.
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JUSTICE IS NOT A GOOD VALUE FOR DEBATE
Justice is an ambiguous value
Jo Greenhorn et. Al. The Herald. 2010. GENUINE RESPECT FOR THE TRUTH MUST BE
AT THE CENTRE OF ANY SYSTEM OF JUSTICE, accessed 8-11-2010
I have lately listened to certain politicians, including the current Prime Minister, speak about
justice and found myself wondering where their particular definition of that word comes from. It
is certainly from no dictionary. Those who speak about justice with phony passion, while at the
same time doing all in their power to ensure there is no role for the truth in proceedings, are
hypocrites. They insult all of us who truly do believe in justice and who believe, with a genuine
passion, that if respect for the truth isn’t at the centre of any justice system then that system is not
entitled to use the word justice in its title.
Justice Is Too Abstract A Value
Minh A. Luong. Tournament of Champions Advisory Committee, Assistant Professor in
the Ethics, Politics, & Economics Program at Yale University and
International Affairs Fellow at the Yale Center for International and Area
Studies THE CASE FOR CONTEXTUAL STANDARDS. Rostrum 2001, Accessed 8-112010 debate.uvm.edu/NFL/rostrumlib/Luong%20Perspe.pdf
Use of abstract values and even worse, focus of the debate over competing philosophical
theories, sidesteps or completely ignores the discussion over the actual debate resolution. Under
the present paradigm, it is possible for debaters to discuss the same issues of “justice” or
“freedom” despite changes in the resolution. Clearly, current practice is not promoting
discussion on the range of issues that is demanded by frequent changes of debate topics.
JUSTICE, USED BROADLY, RESULTS IN SHALLOW ANALYSIS
Minh A. Luong. Tournament of Champions Advisory Committee, Assistant Professor in
the Ethics, Politics, & Economics Program at Yale University and
International Affairs Fellow at the Yale Center for International and Area
Studies THE CASE FOR CONTEXTUAL STANDARDS. Accessed 8-11-2010
debate.uvm.edu/NFL/rostrumlib/Luong%20Perspe.pdf
Most Lincoln-Douglas debaters identify a very abstract value such as ‘justice” or “progress” and
try to apply it to a specific empirical context stipulated in the L-D resolution. The result is a lack
of context and precision because abstract values are “too high” for empirically applied L-D
resolutions to be adequately analyzed in just 13 minutes. This is tantamount to using a meat ax
when, in actuality, a scalpel is required. Additionally, current practice is actually counterproductive to the educational goals of debate because it promotes shallow analysis and is
difficult for judges to understand.
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Quality of Life should be prioritized
Life should not be prioritized over Quality of Life
Lehmann, Karin. 2006. Professor, University of Cape Town. ARTICLES AND ESSAYS
ANALYZING JUSTICIABILITY OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS.
American University International Law Review. Accessed 8/13/10.
For instance, an HIV positive patient's interest in receiving anti-retroviral medicine versus a
chronic migraine sufferer's interest in receiving migraine treatment because their quality of life is
seriously and adversely impaired. The HIV positive patient's life may be extended significantly if
she receives anti-retroviral medicine. The migraine sufferer's quality of life will be improved
significantly if she receives migraine [*189] medication. Under Bilchitz's formulation, and
perhaps most individual's immediate compassionate response, the HIV positive patient's claim
must be prioritized. But if that choice would condemn the migraine sufferer to a life of suffering,
where her dignity and quality of life was seriously eroded, can one still so readily argue that the
one claim inherently trumps the other? Must life always prevail over quality of life? Bilchitz's
formulation would, surely, lead to a situation in the health care context where the government
must prioritize "terminal illnesses" above other interests, an approach the court expressly and
appropriately rejected in Soobramoney.
Quality of Life must be considered
Neeley, Steven. 1994. Professor, Xavier University. THE CONSTITUTIONAL RIGHT TO
SUICIDE, THE QUALITY OF LIFE, AND THE "SLIPPERY-SLOPE. Akron Law Review.
Accessed 8/13/10.
It is good that men should feel a horror of taking human life, but in a rational judgment the
quality of the life must be considered. The absolute interdiction of suicide and euthanasia
involves the impossible assertion that every life, no matter what its quality or circumstances, is
worth living and obligatory to be lived. This assertion of the value of mere existence, in the
absence of all the activities that give meaning to life, and in the face of the disintegration of
personality that so often follows from prolonged agony, will not stand scrutiny. On any rationally
acceptable philosophy there is no ethical value in living any sort of life: the only life that is worth
living is the good life.
A minimum realization of physical well-being is necessary for life to be “good”
Neeley, Steven. 1994. Professor, Xavier University. THE CONSTITUTIONAL RIGHT TO
SUICIDE, THE QUALITY OF LIFE, AND THE "SLIPPERY-SLOPE. Akron Law Review.
Accessed 8/13/10.
We may define the good life differently, but no matter what our conception of the good life is, it
presupposes a physical basis -- a certain indispensable minimum of physical and social wellbeing -- necessary for even a limited realization of that good life. Where that minimum is failing
together with all rational probability of attaining it, to avoid a life at its best can be only
vegetative and at its worst run the entire gamut of degradation and obloquy, what high-minded
person would refuse the call of the poet "mourir entre les bras du sommeil"? We must recognize
no categorical imperative "to live," but "to live well."
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Quality of Life not a priority
Diminished Quality of Life doesn’t allow the end of life.
Craig, Paul. 1989. Staff, Journal of Health Law. THE SUPREME COURT FACES THE QUEST
OF WITHDRAWAL OF HYDRATION AND NUTRITION. Journal of Health Law, accessed
8/13/10.
The Missouri court adopted "sanctity of life" as the guiding legal standard, and established a
strong presumption in favor of treatment. The court indicated the state interest in preserving life
was "unqualified" and not dependent on the quality of an individual's life. The court admitted
consideration of Ms. Cruzan's quality of life was inevitable, but stated diminished quality of life
does not support a decision to cause death. This vitalist posture is based on the philosophy that
the value of life protected by the state cannot be defined by the benefits that the individual's life
offers to others, or the relative ability of the individual to realize full human potential. Further,
amici argue the danger of a slippery slope in considering diminished capacity and raise the
specter of handicapped persons finding "the state or others seeking to terminate their lives and
the courts permitting them to do so."
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Cost-Benefit Analysis and Deontology
Deontological Constrained CBA is Superior To Alternatives
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 3
Deontologically constrained CBA is more complex than standard CBA. Yet, we maintain that it is
superior to its alternatives. For the deontologist, Direct and explicit incorporation of deontological
constraints into economic Models are vital to make the analysis normatively acceptable. Less obviously,
Most of the consequentialist responses to the deontological critique (such as the Move from act- to ruleconsequentialism) actually recognize or at least imply That sound CBA should incorporate constraints for
practical or instrumental Reasons. A consequentialist who embraces one of these responses may thus
Welcome our proposal without converting to deontology. Other consequentialist Responses to the
deontological critique, such as the "preferences for fairness" Argument, are conceptually unsound and
potentially self-defeating.
The Deontological Measure Of Morality Should Be CBA
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 27-28
It does not follow, however, that whenever a decision maker faces more than one Deontologically
permissible option, the choice between them should necessarily rest on standard CBA. Consider the
choice between the following options: (1) deliberately killing one innocent person to save 101 people; (2)
spending $10,000,000 to save the same 101 people; and (3) letting the 101 people die. Presumably, the
only option infringing a deontological constraint in this example is option (1). If option (1) overrides the
constraint against deliberately killing innocent people, then all three options is permissible. The net
outcomes of the options are as follows: (1) net saving of 100 lives; (2) saving of 101 lives at a cost of
$10,000,000; and (3) no lives saved and no costs borne. At this point, there are two ways to proceed. One
way is to employ standard CBA: monetize the value of a person's life, and choose between options (1)
and (2) (both of which produce much more good than option (3)), according to whether one life is valued
at more or less than $10,000,000. Another approach is to maintain that, whenever an infringement of a
deontological constraint is involved, human life is lexically more important than monetary losses, and
thus to rank option (2) higher than option (1), regardless of the monetary value attributed to human life.
Standard CBA monetizes and aggregates all costs and benefits involved in an act. If, for example, an act
involves the killing of some people and saving others, bodily injuries, damage to property, and pecuniary
gains and losses, all these costs and benefits are taken into account. While a threshold function may
similarly take into account all such costs and benefits (thus deviating from standard CBA only in adding a
threshold D), such inclusiveness arguably misses’ significant distinctions between different costs and
benefits. Following the philosophical literature, this Section examines several limitations on the types of
benefits and costs bearing on the permissibility of infringing deontological constraints. The possible
excluders of costs and benefits described below may be endorsed alliteratively or cumulatively.
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Cost-Benefit Analysis and Deontology
A Deontologically Constrained CBA Must Also Set The Structure Of The Threshold Function
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 45
The constraint may be expressed as an additive or multiplier function, or as a combination of these
options. In the present context, the language of thresholds set forth by Title VII and the ADA seems to
reflect the additive approach because it determines the threshold irrespective of the actual harm that the
discriminatory decision or practice inflicts on the person who is discriminated against. In this sense, these
provisions can be interpreted as setting some (possibly high) value K that represents the harms that
generally result from not making reasonable accommodations or from applying some otherwise
discriminatory practice. Yet, the "necessity" and "undue hardship" standards may also be interpreted as
laying down a multiplier threshold in which its size is determined by the extent of the harm Inflicted by
the infringing act. This approach finds support in Judge Posner's statement that the assessment whether an
accommodation imposes an "undue burden" under the ADA should be made "in relation to the benefits of
the accommodation to the disabled worker as well as to the employer's resources."
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Answers to Cost-Benefit Analysis
Factoral Morality Counters CBA
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 12-13
In any event, even if rule-consequentialism of some sort were a valid
Foundational moral theory, it would not imply that CBA should not include deontological constraints. On
the contrary—the more sophisticated versions of Rule-consequentialism is more acceptable precisely
because they strive to Explain and justify the role of deontological constraints on the factoral level. To
clarify, a factoral moral theory defines the factors that determine the Morality of an act, their relative
weight and interaction. Such factors may include the costs and benefits of an act, whether it involves
harming other people, and the relationships between the actor and the people affected by the act. In and of
itself, a factoral theory neither explains nor justifies the relevance of the various factors and their
interaction. This is the role of foundational theories. Interestingly, there is no necessary match between
the kind of theory one adopts on the factoral level and the theory one favors on the foundational level."*^
As we have just seen, rule-consequentialism on the foundational level endorses threshold constraints on
the factoral level.''^ Thus, CBA should take deontological constraints into account as well.
CBA Preferences And Prejudices
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 46
As regards the types of costs and benefits relevant to measuring whether the threshold is met, one must
consider whether to take into account discriminatory preferences and prejudices (of either the employer or
the firm's customers or other employees). Disregard for antisocial preferences is possible even within a
purely consequentialist theory, and has in fact been advocated by some economists.'^' However, this view
is more likely to be part of a Deontologically constrained CBA. The constraint against discrimination
implies that satisfying racial or sexist preferences should not constitute part of the social good. In a sense,
this view is reflected in current antidiscrimination laws. The express limitations on the duties of
accommodation discussed above— embodying the notion that the constraint against discrimination has
thresholds—do not apply to antidiscrimination norms where compliance does not entail monetary or
similar costs. By limiting the application of these limitations to accommodation duties, the law
delegitimizes other costs.
Objections To CBA
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 57-58
Another possible objection is that even if standard CBA reflects normative judgments, once these
judgments have been made, the routine use of CBA requires merely empirical, value-neutral
investigations.^^° In response, it should first be noted that many of the normative questions underlying
CBA are not yet settled. For example, it is unclear whether the theory of the good underlying standard
CBA should be satisfaction of actual preferences or satisfaction of rational or ideal ones.^^' Second, the
current state of standard CBA reflects decades of methodological refinement. Constrained CBA may
benefit similar academic refmement over time. More precisely, the emergence of methodological
conventions regarding the handling of these questions is likely to make the pertinent normative judgments
less conspicuous, as has been the case with standard CBA.
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CBA Answers Cont.
Agencies Are Restricted Using CBA
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 58-59
As regards regulatory agencies, the requirement to conduct CBA restricts the agencies' discretion and
reduces the risk of error.^^^ Authorizing the agencies to engage in philosophical inquiries would arguably
broaden their discretion and complicate the oversight process. According to this view, deontological
constraints should not be incorporated into CBA, but rather set by other governmental authorities, along
with other constraints imposed on agencies.^^"* Indeed, constitutional and institutional considerations
dictate that politically accountable bodies such as Congress, rather than regulatory agencies, should
construct threshold functions, either mathematical or verbal. It does not follow, however, that-^inasmuch
as agencies face decisions involving deontological constraints—these constraints cannot or should not be
incorporated into CBA. Once the ethical and policy judgments are made and a threshold function is
constructed, the regulatory agencies and other governmental branches may and should routinely employ
this function. Agencies specializing in measuring and evaluating costs and benefits are well suited to
employ threshold functions requiring assessment of the regulation's harms and benefits. Rather than
broadening their discretion, the explicit application of such functions may actually facilitate greater
transparency and accountability of agencies' activities.
CBA Should Only Be Applied To Market Issues
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 65
Since it is difficult to draw a boundary between a willingness to monetize things such as physical pain
and unwillingness to monetize deontological constraints against actively/intentionally harming people,
arguably one should either reject money commensuration tout court, or concede to it entirely, at least
under appropriate circumstances. A principled anti-monetization implies that CBA and economic
methodology should only apply to market issues (and even in this context, they would face considerable
difficulties).^^" Taking this position seriously would not only rule out the incorporation of threshold
constraints into CBA, but also the very use of CBA in such spheres as health and safety regulation and
environmental protection (not to mention family law, criminal law, and human rights). To be sure, a
world without economic analysis of nonmarket issues is not inconceivable; it existed only several decades
ago and still exists in most parts of the globe. But whatever the normative deficiencies of economic
analysis, doing away with CBA as a governmental decision procedure and with economic analysis of law
seems most undesirable.
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CBA and Morality
CBA On Terrorism
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 51
Answering this question through standard CBA requires comparing the expected direct and indirect
consequences of an action against the terrorists with the consequences of inaction, including their
expected effects on the motivation of future terrorists and on demoralization.'^" Standard economic
analysis does not differentiate between active infliction of harm by the government on a particular group
of innocent people and the harm suffered by an as yet unspecified group of innocent people due to the
terrorist activity and
the government's inaction. This view conflicts with ordinary morality and prevailing constitutional legal
norms.
CBA Moralizes Preference Theory’s Of Good
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 18
However, neither sophisticated theories of the good, nor the more modest move from actual to ideal
preferences, satisfactorily answers the deontological critique.^^ Focusing on the move to ideal
preferences, while excluding antisocial preferences indeed reduces the likelihood that purely
consequentialist economic analysis would endorse truly deplorable conclusions, it still does not respond
to many of the deontologist's concerns. In contrast to deontology and in line with other consequentialist
theories, CBA based on ideal preferences
would support violating a constraint now to prevent two similar violations in the nature (e.g., murdering
one person to prevent two future murders). Furthermore, like the more sophisticated theories of the good,
the technique of "laundering" morally objectionable preferences actually aims at imposing constraints on
welfare maximization." It is unclear whether an ideal preferences theory of the good can incorporate such
distinctions as doing/allowing or intending/foreseeing, but even if it could, the result would be a
recognition that threshold constraints are indispensable on the factoral level.
Burden Of Proof Using CBA
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 55-56
Burden of Proof In criminal law, the burden of proof determines the ratio between the risk of erroneously
convicting an innocent suspect ("false positive") and the risk of erroneously acquitting a criminal ("false
negative").For the consequentialist, adjudicative fact-finding needs to minimize the total cost of errors
and error-avoidance. Accordingly, the burden of proof should minimize the aggregate costs of the two
types of errors.^'^ For instance, if both types impose the same social cost, the optimal decision rule is
"preponderance of the evidence," Requiring a higher standard in criminal trials is justified only when the
harms generated by false convictions exceed the harms generated by acquittals of guilty criminals.^''' This
view ignores, however, notions of injustice of erroneously convicting an innocent person and the
individual's right to fairness and equality. These notions may yield a ratio between the two types of
errors—and thus a certain burden of proof that exceeds the one endorsed by a standard CBA.^'^
Incorporating a deontological constraint against (risking) false convictions may thus yield a more
satisfactory analysis,
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CBA and Morality
Applying Constraints To CBA Is Moral
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 67
Economic analysis of law, and of human behavior in general, is a powerful analytical methodology. At
the same time, standard CBA is normatively objectionable on various grounds. This Article focused on
the consequentialist aspect of welfare economics, specifically on the lack of constraints on promoting the
best outcomes. Moderate deontology is more in accord with commonsense morality and existing legal
doctrines, but is less determinate and rigorous. We argued that integrating threshold constraints with costbenefit analysis would overcome both deficiencies, and that it is compatible with, and perhaps even
mandated by, the more sophisticated versions of foundational consequentialism. Such integration raises
principled and methodological concerns, but we believe that these concerns can all be met. Adding
threshold constraints to economic analysis would make it not only normatively more acceptable, but also
descriptively more valid, without significantly compromising its methodological rigor. The advantages of
constrained CBA are particularly conspicuous in the analysis of non-market spheres, such as
constitutional, criminal, tort, and family law, where deontological constraints loom large, but they are
significant in market contexts as well. Hopefully, such integration would contribute to bridging the
increasing gulf between economic analysis and other approaches to law and legal theory.
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CBA Is a Versatile Weighing Mechanism
Choosing among Permissible Options.
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 27
The models described below aim at determining whether acts or rules infringing a deontological
constraint produce a sufficiently large net benefit to override the constraint. At times, this is the sole
question facing the decision maker. For example, when a court decides whether a certain statute is
constitutional, the only question may be whether the good produced by the statute is large enough to
override a certain constraint. In other instances, however, determining whether one or more of the
available options violate a deontological constraint is only part of the inquiry. Consider the choice
between the following options: (1) deliberately killing two innocent people to save the lives of 280 people
(out of 500 facing death); (2) deliberately killing three innocent people to save the lives of 290 (out of the
same 500); (3) letting all 500 die. If the threshold of the constraint against actively/intentionally killing
innocent people is sufficiently high, only the third option would be permissible. If, alternatively, the
threshold is met whenever at least 100 people are saved by killing each person, then options (1) and (3),
but not (2), are permissible. The choice between options (1) and (3) may be made using standard CBA,
and since option (1) results in net saving of 278 lives and option (3) with the saving of none, option (1)
should be chosen. Finally, if the threshold is met whenever killing one person saves at least 90 lives, then
all three options are permissible. Using standard CBA to choose among them, option (2) ranks first (net
saving of 287 lives), option (1) second (net saving of
278 lives), and option (3) last (no lives saved). In situations like this, the decision process consists of two
stages: sorting out those options that do not infringe, or that override, the deontological constraint, and
then using standard CBA to choose the one that brings about the best outcomes.'"'' The separation
between the two stages is necessary because—as demonstrated below—the factors taken into account in
each stage and their interrelations are not similar.
CBA Analysis
Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 56-57
While conceding the normative flaws of standard CBA, economists may still endorse a division of labor
between economic analysis and deontological concerns to preserve the alleged value-free and objective
nature of economic analysis. However, as many commentators have long pointed out, the idea that
standard CBA is a value-free, "scientific" mode of analysis is false,'^'^ The choice between competing
notions of distributive justice within the consequentialist framework (such as mere maximization of utility
or a Rawlsian maximum) is anything but value-free. The same is. true regarding the choice of the
underlying theory of the good.^'^ Even the Pareto criterion entails non-trivial normative judgments.'^'^
Thus, while adding deontological constraints to economic analysis obviously reflects a normative
judgment, disregarding such constraints does so as well. There is nothing more "subjective" in setting
objectively defamed constraints to maximizing well-being than in not setting such constraints.
The Angle Of CBA Is Looked At May Have Differed Applications
Zamir, Eyal and Barak Medina, Professors of Law, 2008, California Law Review, p. 64
From a different angle, the scope of any threshold constraint in a given legal system may (at least
theoretically) be derived from a comparison between the existing rules and the rules that would have been
set on a purely consequentialist basis. For example, assume (counterfactually) that standard CBA
unequivocally calls for breaching contracts whenever performance, is inefficient (the "efficient breach
doctrine").^''^ The extent to which existing
contract law deviates from the efficient breach doctrine by "excessively" deterring breaches may reflect a
deontological constraint against promise breaking. If all other variables are monetized, then one should be
able (at least in theory) to extract the money value of the legally imposed constraint as well.
Applying CBA To Economic And Social Behavior
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Zamir, Eyal and Barak Medina, Professors of Law, 2008
California Law Review, p. 58
A related objection is that even if standard CBA reflects normative judgments, and even if some of these
judgments are still debated, economists do not have the philosophical expertise necessary to engage in the
moral deliberation required for setting deontological constraints. In considering this argument, one should
distinguish between academic use of CBA and its use by governmental agencies. As regards academic
analysts and particularly those engaging in economic analysis of law, to the extent that one can
distinguish between normative and positive analyses,^^^ constrained CBA is primarily germane to the
former; though it may also contribute to positive analysis of people's behavior, influenced by ordinary
morality, and of the legal system, embodying such constraints. Inasmuch as economic analysis of law
aims to enhance the normative discussion of legal issues, consideration of deontological concerns seems
both essential and feasible. Just as mainstream legal theory has embraced the economic perspective, and
as mainstream economic analysis of law is gradually embracing the insights of cognitive psychology (the
so-called "behavioral law and economics"), there is no compelling reason why economic analysis of law
should not pay heed to moral concerns and incorporate them into CBA. Constrained CBA would
contribute to the operationality of moderate deontology and may even enrich the philosophical debate
about threshold constraints