Economics as a Moral Science

“Similarly, calls for ‘solidarity’ (or fiscal transfers) run straight into concerns over moral hazard. Mario Monti, a former Italian prime minister, likes to claim that in Germany economics is seen as a branch of moral philosophy.”

— “Of Rules and Order,” The Economist (9 May 2015), p. 47.

The above lines appear in an article on German ordoliberalism that claims the doctrine has become unquestioned orthodoxy among economists and policymakers in Germany, to sometimes detrimental effect. Ordoliberalism is an offshoot of classical liberalism, which advocates a strong role for the state in setting the legal and regulatory framework within which markets can operate to their full potential. It was named after ORDO, the journal strongly associated with the school of thought.

It is not my aim to critique ordoliberalism. I am more interested in Monti’s statement to the effect that Germans see economics as a branch of moral philosophy. The impression given is that Monti sees this as a bad thing, as if economics and moral philosophy should properly be kept separate. On the contrary, I see them as almost necessarily connected and that any attempt to pretend economics has nothing to do with moral philosophy is quixotic at best, downright harmful at worst. It is my belief that economics is a branch of applied ethics.

I will begin by observing that many of the big names in the founding pantheon of economics saw themselves as moral philosophers. Let us not forget that the sainted Adam Smith was Professor of Moral Philosophy at the University of Glasgow from 1752 to 1764, and that before The Wealth of Nations (1776), he was already well-known as the author of The Theory of Moral Sentiments (1759).

Smith’s friend David Hume wrote extensively on moral philosophy in addition to his many well-regarded essays on political economy. In the 18th century there was indeed no clear line separating the one from the other.

Even in the 19th century, Thomas Malthus was a clergyman before he was an economist. His solution to his famed population problem was a moral one: personal sexual restraint. His rejection of birth control was based on the belief that it would undermine public morals.

John Stuart Mill’s Principles of Political Economy (1848), which went through seven editions in his lifetime, was the standard textbook on economics in the 19th century. At the same time, Mill was an exponent of the moral philosophy of utilitarianism who wrote extensively on politics and such questions of “applied” ethics as women’s rights and slavery. Book Six of his A System of Logic (1843) was entitled “The Logic of the Moral Sciences”.

Put simply, the history of economics is littered with famous economists that were also (and even primarily) moral philosophers.

At some point late in the 19th or early in the 20th century, academic philosophy in the English-speaking world decided it would be a value-free “hard” science, akin to physics or mathematics. The fad was to reduce all philosophical problems to linguistic ones, which were in turn seen to be reducible to mathematical ones. This process made academic philosophy the irrelevancy it largely is today. The fact is, not all philosophical problems are linguistic in nature, nor is a language simply a calculus. Indeed, the most interesting things about languages are not mathematical but social.

Economics underwent a similar transformation, at least insofar as it aspired to be a value-free hard science. The problem here is twofold: First, economics necessarily deals with human beings as its subject matter, and human beings are not value-free. Second, stripped of values, it is difficult see what would be the point of economics at all other than to serve basic human curiosity — hardly the sort of endeavor that will attract much grant funding.

Fortunately for us, try as it might, economics cannot avoid being value-laden. The fundamental dependence of economics on morality was exemplified by Adam Smith early on in The Wealth of Nations when he wrote that “Nobody ever saw a dog make a fair and deliberate exchange of one bone for another with another dog” (Bk. I, ch. 2). The notion of voluntary exchange is fundamental to economics, and neither the word “voluntary” nor the word “exchange” is value free. And once we start talking about fair voluntary exchange, we have arguably left the realm of economics proper and stumbled into the land of moral philosophy.

Aside from the concepts used in economics being value-laden, there is a deeper sense in which the discipline is a moral science. It helps to think of what economists do, and of why they do it. Yes, there is the descriptive side of it, the study and explanation of human interaction as embodied in exchange. To be able to do this well it helps to understand and be able to deploy such concepts as “value”, “institution”, “law”, “rule”, custom”, “contract”, “property” (and property “rights”), all of which are grounded in human morality. In other words, a good economist should understand that there is a moral framework that makes economic phenomena possible (it seems to me that German ordoliberalism is on the right track here). Morality is the specie that backs the economist’s paper currency.

But as importantly, there is the prescriptive side of economics, insofar as economists study with an eye to being able to make recommendations as to what will facilitate exchange, maximize production, improve well-being, etc. The bare desire to achieve any of these things presupposes, directly or indirectly, some ethical stance. Put another way,

Every economic policy prescription presupposes a moral philosophy.

By “moral philosophy” here I mean roughly a system of beliefs about what will make people happy (or good, as we’ll see). Philosophers have always asked the fundamental question, “What is the good life?” Economists ultimately ask “What is the best way to achieve the good life?” Whether they know it or not, their prescriptions presuppose an answer to the philosopher’s question.

Now, the prescriptive economist’s moral philosophy may not be a fully conscious thought in the mind of the economist who is prescribing, and whether conscious or not, it may not be all that well worked out. But trust me, it is there.

CONSEQUENTIALISM:

What is the moral philosophy of the prescriptive economist? Most commonly it is some form of maximizing consequentialism, such as utilitarianism. The consequentialist aims at maximizing the good. There is no good unless there is a person who experiences it, and the most obvious candidate for such an experienced good is pleasure. Pleasure has a necessary material basis, and the goal of prescriptive economists is to find ways to create more pleasure, mostly through expanding that material basis. However, beyond this point the details get messy.

For example, one economic prescription may be better at producing a greater amount of pleasure, while another is less good at that but better at making sure that more people get to experience the lesser amount produced. Which should be favoured, the production of greater overall pleasure, regardless of who gets to experience it? Or does distribution matter?

Then there is the sacrifice problem: if we agree that our goal is to maximize overall happiness, this may have to be done by sacrificing the happiness of particular individuals. It may seem like a good bargain from a disinterested point of view (though Nietzsche argued that there is ultimately no such thing as a disinterested point of view). But from the point of view of the person whose interest is being sacrificed, it can justifiably be asked, “Why me? Why should my happiness count for less than another person’s?”

There is also the “poetry or pushpin” problem: not all pleasures are the same. Some seem more worthwhile than others in terms of quality, even if not in terms of quantity. The sadist’s pleasure should not be privileged in the same way as other more innocent pleasures (though if the sadists can be happily paired off with the masochists…). If it’s easier to produce violent video games than sonnets, should we simply abandon sonnets as the less efficient form of pleasure production and plough all our economic efforts into improving on Grand Theft Auto and its dubious ilk? Or are there certain pleasures we should encourage and others we should discourage? If so, on what grounds? These are unavoidably questions of value. If we choose to value some pleasures over others, we must be able to justify that choice, and it seems impossible to do so without leaving the confines of pure utilitarianism.

DEONTOLOGY:
 
After consequentialism, the most common moral philosophy of the prescriptive economist seems to be some form of deontology or rights-based approach. For example, economists of a more libertarian bent will tend to see property rights as inviolable, no matter how much more pleasure the utilitarian might be able to produce through expropriation and redistribution. Often these rights are called “side constraints” in that they constrain the extent to which consequentialists can carry forward their pleasure-producing projects. There is something attractive to this approach, insofar as we feel intuitively that there should be certain things that are simply off-limits to governments, policymakers, regulators, and other assorted do-gooders. We feel that there ought to be a certain sphere in which we can make our own choices (and mistakes) without interference, even if we disagree on just what size and shape that sphere should be.

It is not just libertarian economists that have a tendency to defend their prescriptions in deontological terms. While the libertarian defends an extensive personal sphere, the socialist will emphasize the rights of others, and defend a redistributive scheme on the grounds that others are equally deserving of the fruits of production as those who currently happen to own them. If I own everything and everybody else is starving, how can I defend my holdings in a way that will carry weight with those who are starving? What about their right to eat? When redistribution is defended on the basis that those on the receiving end have a right to what they are given, it is being defended deontologically.

This brings out a central instability in just about any deontological economics. If pushed, the libertarian will often be compelled to shift from deontological to consequentialist argument to defend his rights: “I’m entitled to my entitlements because if I weren’t, production would suffer and we’d all be worse off. I’m a job creator.” This is a consequentialist argument. Deontological ethics requires far more metaphysics to defend it than an economist is typically able to offer; it’s usually easier to make a strategic retreat to consequentialism instead.

It should be noted that the consequentialist can be forced into a similar kind of strategic retreat. Finding that she too ultimately agrees that not everything can be sacrificed on the altar of pleasure production, she will usually fall back on the notion of rules, which can look very much like the deontologist’s side constraints. The difference is that the consequentialist will defend these rules on consequentialist grounds, again avoiding metaphysics. For example, having a rule allowing for inviolable property rights, a rule utilitarian will argue, leads to greater production by allowing property owners to put their property to its most productive use, etc. This rule will contribute to overall happiness in the long run and for greater numbers, even if in specific cases it works what seem like grave injustices. Of course, these claims of ultimate utility may or may not be empirically verifiable, but they allow the utilitarian to seemingly serve two incompatible imperatives — that happiness should be maximized while personal liberty remain unviolated.

PERFECTIONISM:

Aside from consequentialism and deontology, there is another moral position sometimes implicitly adopted by prescriptive economists. Though somewhat rarer, I find it very interesting when I see it, in part because it seems to go against the grain of everything we think of when we think of economics, in that it doesn’t necessarily concern itself with producing utility (nor with personal liberty). Let us call it perfectionism. There are many different kinds of perfectionism. What they tend to have in common is that, put in ethical jargon, they are non-eudaimonistic, meaning that they are not centered around the concept of happiness as such.

Utilitarianism is eudaimonistic, in that it offers views on how to increase happiness, ultimately identifying happiness with goodness. Perfectionism is the opposite of this; it uncouples happiness and goodness. The good may very well be something that has nothing to do with happiness at all. Maybe we live in a kind of broken universe, where the ethical life requires us to be unhappy, in the service of some impersonal good. It may simply be the case that ethical goodness is incompatible with being happy. Up to a point, Christianity presents us with a perfectionist morality, since it counsels us that doing our duties as God wills may require us to suffer greatly. On the other hand, Christianity degenerates into a sort of bastard utilitarianism once it starts offering future rewards and punishments in the hereafter.

Another example of a perfectionist moral theory might be certain versions of virtue ethics, which begin with an account of the virtuous moral agent, while not necessarily tying that virtue to human flourishing or happiness. It is possible to read Nietzsche this way. Malthus arguing against the use of birth control might be another instance.

What does a perfectionist economic prescription look like? Well one sees hints of it in talk of “moral hazard”. For example, some economists argue against certain schemes of public insurance because they remove the incentive to exercise caution in one’s affairs. Now this could be given a utilitarian spin: public insurance increases negligence, which increases the number of accidents, which increases overall costs, thereby decreasing overall utility and happiness. But it sometimes sounds more as if the economist is offering a virtue-ethical position: negligent citizens are less virtuous than prudent ones, so that if insurance encourages negligent behavior, it is encouraging vice. In other words, it’s not about negligence as it pertains to productivity, but negligence as it is a vicious trait of character.

A similar situation holds with regard to many of the arguments one hears against welfare or other forms of poor relief: it removes the incentive for poor people to work. This can mean that it discourages productivity (utilitarianism), or it can mean that it makes poor people lazy (virtue ethical perfectionism). Another example might be arguments offered against safe injection sites.

In practice, economists have a tendency to slide from one way of speaking to the other without thinking much about it. This interests me, because this slippage gives a window into the economist’s moral stance and value commitments at the exact moment when they think they are practicing a value-free science. The economist who speaks of the “unintended consequences” of welfare sometimes betrays an assumption that poor people are naturally vicious — or will be if given the barest opportunity.

In any case, whether consequentialist, deontological, or perfectionist, or some inconsistent mixture of these, economists are unavoidably practicing a kind of moral philosophy in doing what they do. Whether they are also practicing a moral science is less clear.

Constitutional Gridlock

The United States has the world’s oldest and shortest written constitution. This naturally invites the question “Is the US constitution out of date and in need of drastic updating?” One letter writer in the April 25 edition of The Economist thinks so. I do not normally concern myself much with what a letter writer thinks, at least not enough to blog about it. However, in this case the writer has identified himself as Philip Cerny, Professor emeritus of politics, University of Manchester. Since he has effectively billed himself as a sort of expert on the subject whereof he speaks, I feel that criticism is fair and worthwhile.

Prof. Cerny begins his letter by correctly observing that, unlike a US President, a British Prime Minister whose party has a majority in the House of Commons can effectively rule as he pleases. He more than implies that this is a good thing. I am not convinced. But I am more interested in his thoughts on the US system than the Westminster one.

Prof. Cerny opines that the relative weakness of the office of US President is responsible for current ills:

“But the record of the past four years in particular has been one of gridlocked government rooted in an anachronistic 18th-century constitution with a dysfunctional separation of powers.”

I’m not quite sure where to begin explaining the ways in which this statement is wrong.

First, if Prof. Cerny knew a bit more about American history, he would know that there is nothing singular about the current state of American political gridlock. It has existed on and off almost since the founding of the republic. American politics has always had an ugly and partisan side to it, from the days of the first party system (Federalists versus Jeffersonian Republicans) to the second (Republicans versus Whigs), to today. The gridlock over the slavery issue in the 1850s makes today’s politics look downright gentlemanly — at least there is no Charles Sumner being nearly clubbed to death on the Senate floor by a Preston Brooks. So yes, political deadlock is a fact of American political life.

Second, instead of viewing the constitutional separation of powers as “dysfunctional”, one could argue that it is functioning more or less as the founding generation intended it to, insofar as it is hindering activist government and preventing what I like to call “political entrepreneurialism”. In Federalist No. 48 Madison worried that in pre-Constitution state governments “[t]he legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” He said that critics of the proposed constitution “seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.” One of the reasons for instituting a robust separation of powers is to slow down this impetuous vortex, to allow enough time for two things essential to wise government to assert themselves: reflection and compromise.

On that score, I would say that, Prof. Cerny’s opinion notwithstanding, the separation of powers has not been effective enough in slowing down government. Too much legislation is being created, and too much of that legislation is unwise (to say the least). Meanwhile, successive presidents have found ways to get around the separation of powers, leading to what some critics have called “the imperial presidency”.

Prof. Cerny praises the union of legislative and executive functions in the hands of the British Prime Minister. I would argue that the only reason this has not been an utter disaster for Britain — though some cynics would say it has been a disaster — has more to do with peculiarities of British history and culture. Fortunately, this has been mostly passed on to the heirs of Westminster-style democracy in countries such as Canada and Australia. Let us instead call to mind other examples of nations with a robust union of powers. Shall we praise the Soviet Union under Stalin? Germany under Hitler? Zimbabwe under Mugabe? These have all united the legislative and executive functions in the same hands.

I submit that America’s political deadlock has little to do with the age of its constitution. One of the virtues of that constitution is the relative ease with which it can be amended. And it has in fact been amended as recently as 1992. By contrast, Canada’s constitution is effectively unamendable. And let us politely avert our eyes in shame from the anachronisms of British parliamentary democracy. If the US has “an anachronistic 18th-century constitution” (as Prof. Cerny puts it), the British have a positively medieval one.

Nor is America’s political deadlock attributable solely to the constitutional structure of its governing institutions as such. There are other nations with similar republican constitutions that work reasonably well. And America’s has worked reasonably well throughout most of its history, up to quite recent times. It became the world’s oldest written constitution for a reason: simply put, it worked.

If there was a flaw in the Founders’ plan it was this: The Founders were 18th-century gentlemen with an 18th-century gentleman’s view of politics based on compromise, mutual civility, and disinterested service for the public good. They did not foresee the rise of party systems, nor did they foresee the development of an American political class no longer able to live up to those ideals of compromise, mutual civility, and high-minded public service.

It is not the constitution that is broken, it is the people charged with upholding it.

Witch Doctoring, Good and Bad

The Province of Ontario’s New Democratic Party (NDP), which, for non-Canadian readers, is a “progressive” / left opposition party, has introduced a bill to ban gay conversion therapy (let’s call it GCT for short) for anyone under 18. The bill has found ready support from the province’s governing party and has now passed. It probably helps that Ontario’s premier, Kathleen Wynne, is herself a lesbian. It also helps that Ontario’s is possibly the most paternalistic government in what is left of the free world. But that’s a post for another day…

I will begin by saying that, in essence, I am a supporter of the ban, but not for the reasons I have heard offered for it by its sponsors, which for the most part range from the muddled, to the silly, to the downright dangerous.

Wynne herself objects to GCT because it “is based on the premise that being transgender or gay is wrong and needs to be corrected, adding it simply does not work.” The latter claim (of non-efficacy) is likely true, while the former claim is less clearly so. Rather than being based on the premise that being gay is bad, GCT could conceivably be based on the idea that there are some who would rather be straight than gay, for any number of reasons. It is conceivable that there are gay persons who  might rather not be gay, and not because they hate gays. But even assuming the truth of the claim that GCT assumes that being gay is bad (in the moral sense of “bad”), I’m not quite sure I understand how that in itself is grounds for a legal ban. After all, assuming that being gay is not bad, the most we can say here is that GCT is based on a false premise. Being based on a false premise is not good grounds for illegality. If we were to go around banning things that were based on mistaken beliefs, we’d have to ban an awful lot of things, religion for instance. Good luck with that.

There seems to be something muddled — and hypocritical, as I hope to show — about the justification for banning GCT.

The objections I’ve heard offered against GCT are typically variations of three main ones:

Objection #1:    GCT does damage to gay community.

I have heard (pardon the pun) a similar argument from some in the deaf community, who would like to see cochlear implants banned because helping deaf people to hear again would do damage to deaf culture (while implying that there is something “bad” or “less than” about being deaf). Aside from it being debatable whether or not this “damage” claim has any factual merit, it seems monstrous to me to deny some people the use of one of their senses so that others can continue to feel comfortable in their culture. By the same reasoning, should we consider a on ban any kind of intervention that seeks to reverse a physical disability? Jesus surely didn’t think of himself as killing whole communities when he helped the lame to walk and the blind to see. If your culture depends on denying others something so fundamental, then I submit that your culture is too weak or too vicious to deserve to be artificially kept afloat.

The point here is that if a particular person with homosexual inclinations views those inclinations as something they’d rather not have, why shouldn’t they have the right to seek to be relieved of that burden?

The gay community is strong enough and large enough to survive the existence of what amounts to a fringe element that seeks to convert them. There may be threats out there, but I don’t think GCT is one of them. The LGBT community has survived through times much more hostile than these. In recent times the gay community has gone from strength to strength; the same cannot be said for the gay conversion movement. With respect to the “damage to community” objection, a ban on GCT seems like a clumsy solution to a non-existent problem.

One more point: It is a fact that a number of people are born female who would rather be male (and vice versa). “Progressives” would presumably celebrate their decision to seek sex reassignment. After all, it seems that being a trans person is all the rage right now among progressives. Progressives certainly don’t prevent trans people from seeking to change their sex. After all, it’s about personal liberty, right? And progressives certainly do not complain that the choice such people make “does damage” to, say, women’s rights. Why is the same respect for liberty not accorded to people who’d rather not be gay? The example of trans people brings us to

Objection #2:    Gays are born that way.

Therefore stop “correcting” them, goes this objection. To this, I would point out that many people are born many different ways, including ways they’d rather not be and that can be changed. Again, does this mean that someone with a birth defect ought never to be allowed to correct that defect, because they were born that way?

And again, many are born male who would rather be female and vice versa. Should we prevent them from seeking to change this because they would be messing with the way they were born? Unless one is a theological hard head, one must be honest and admit that nature makes mistakes from time to time. If those mistakes can be corrected, why should they not be corrected?

To be honest, I've never quite understood the importance of the "born that way" argument to LGBT rights anyway. As I've said, one can often change the way one was born. But more fundamentally, to me the claim has always had a certain unpalatable undertone of apologetics: "I'm sorry, I can't help being gay. I was born this way. Please don't hate me." I suppose the idea here is that if it's not a choice I can't be held morally responsible for it. But the better route is simply to acknowledge that even if it were a choice, it is not one that is morally culpable. The "born that way" argument seems to cater to the intolerant enemy rather than refuting him, by accepting his premise that homosexual behaviour is sonehow prima facie morally wrong. If I have nothing to be ashamed  of for being gay, then I don't have to apologize for it, and I certainly don't have to "justify" it on a quasi-deterministic basis.

Objection #3:    GCT doesn’t work.

Correct. In most (but not all) cases, GCT doesn’t work. However, this in itself is no argument to ban GCT — though it may be an argument not to publicly fund it. To compare: most of the addiction therapies on the market have abysmal success rates, at least where statistics are even made available. By any standard, Alcoholics Anonymous is a joke, as judged by its outrageous recidivism rates. And yet few make the case for banning alcoholic treatment centres or stopping the funding of them. If anything, there is a strong lobby to expand them.

And let us not discount the fact that there are those who claim to have responded positively to GCT. Naysayers will claim that these people weren’t really gay in the first place, or that they were brainwashed, or that they’re not really happy. Personally, I don’t feel well-placed to make such judgments, because I am not them and I don’t have special access to their souls. I am willing to believe that there is a small subset of people for whom GCT “works”, even if only through a kind of placebo effect. As long as they’re willing to try the therapy out, who am I do deny them the opportunity?

And who knows? Maybe for some of those for whom GCT doesn’t work, it may nonetheless have an unlooked-for positive consequence in helping them come to terms with their homosexuality. When treatment fails, maybe you just have to live with it, even embrace it, and maybe join a community of fellow travelers.

For all these reasons, on balance, I am in disagreement with a general ban on GCT, even though I am an utter sceptic as to its efficacy. However, having said that, I would impose the following strictures on the practice:

(i) Unless it can empirically demonstrate its efficacy, GCT it should not be publicly funded.

I leave it as an open question whether, should it somehow prove its efficacy, it should still be refused state funding insofar as it is faith-based and violates the principle of the separation of church and state.

(ii) Nobody should be disadvantaged in any way on the grounds of having refused to undergo CGT.

This is nearly equivalent to saying that nobody ought to be disadvantaged on the grounds of being LGBT and is intended to assuage fears related to objection #1 above.

(iii) Nobody ought to be forced to undergo GCT.

With regard to the last point, I would also go so far as to say that this stricture ought to apply to minors too. In other words, a minor should never be forced by their parents or guardians to undergo GCT, even though in other areas we accept that parents or guardians can make decisions on behalf of their children and wards. Nay, further, I would say that the therapy ought not to be available to minors at all, not even should a minor request it in the absence of parental consent or knowledge. Here my reasoning is more controversial, in that I base it mostly on my reluctance to slap a label like “gay”, lesbian” or “straight” on any minor. They may have inclinations one way or the other, but I am not convinced that anything is set in stone until they have had more life experience. In resisting the urge to put sexual labels on minors, I partly wish to resist the societal trend towards sexualizing children. It is unhealthy and, to my mind, morally objectionable.

I think too that Premier Wynne was grasping at something like this explanation when in the article I linked to above, she said that “she had a lot of life experience when she came out in her mid-30s and understood her sexuality in a way an eight-or nine-year-old cannot.” (N.B. It seems that the Premier and I are both agnostic about whether gays are “born that way”. For most purposes I think it is a pointless debate anyway, much akin to 17th-century philosophical debates about the existence of innate knowledge.)

Unlike other parental decisions regarding medical interventions for their children, an intervention here (one way or the other) is largely unnecessary and can have serious long-term negative repercussions. To see this clearly, imagine a counter-example: What would your attitude be if a pair of gay parents decided to make their child undergo “straight conversion therapy” to make them gay, so that it would fit in better with its parents’ community and lifestyle? If you’re like me, you will find this morally objectionable, and not because it’s trying to make the child gay, but rather because it’s trying to impose a sexual identity on a being that should not be sexualized at all. It’s just creepy. Although trained philosophers will tell you otherwise, I believe that sometimes “creepy” can amount to a valid moral argument.

Looked at from another angle, I would view the decision to put one’s child through GCT as analogous to a decision to sterilize it. A parent should not have the right to make that decision, because there is no good reason to make it (barring some immediate life-threatening emergency) and because the consequences of the decision are so potentially dire and such a gross assault on a person’s future.

A child should be prevented from exercising the “voluntary” decision to undergo GCT because it cannot yet be said to have enough experience to make a considered decision about its sexual or reproductive future. There is no settled will in the agent that allows us to call such a decision “voluntary” in a substantive moral sense.

 It is specifically the limitation of the Ontario ban to minors only that gives it my approval, and it is for this reason only that I said at the beginning of the post that I am a supporter of it. Ne plus ultra. Thus far stretches my paternalism, but no further. Aside from the above three strictures, I see no reason why GCT shouldn’t be available to those who want it.

*        *        *        *

One of my main objections to a broader ban on GCT is that, besides being an unwarranted invasion of personal liberty, it smacks of hypocrisy. The progressives who advocate for such ban believe that they are being high-minded and are striking a blow for liberty and tolerance. They are doing the opposite on both counts. To see that this is the case, it may help to juxtapose this Ontario government decision with another concurrent one.

In addition to banning gay conversion therapy for minors, the Government of Ontario has also passed a law that will regulate the homeopathy industry in much the same way it regulates the medical profession in the province. So there will be some kind of government recognized college of homeopathic witch doctors just as there is a college of real doctors.

There is about as much empirical evidence for the efficacy of homeopathic “medicine” as there is for gay conversion therapy, maybe even less. And yet, the government encourages the former and even funds it. Of course, this rather undercuts the government’s own so-called “Patients First: Action Plan for Health Care”, which claims to be “making evidence based [sic.] decisions on value and quality, to sustain the system for generations to come”

The desire to ban one empirically bogus treatment while sanctioning another one seems incoherent unless understood in the context of one group (“progressives”) imposing an agenda on everyone else. This is paternalistic. And to demonize those who think differently on the issue of GCT, as is being done, strikes me as not particularly tolerant. Progressives take (mostly undue) credit for fighting paternalism and intolerance. Hence, my charge of hypocrisy.

To end, here’s a little piece to lighten the mood — sort of.

Administrative Unlaw?

This is not a court.

I recently read a newish book by Philip Hamburger called Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014). The book is one in an ever-growing genre of roughly libertarian legal studies that defend a position that public law (in most cases specifically “administrative law”) as it is practiced today is either (i) degenerate law, or (ii) not really law at all. Usually these claims go along with an implicit or explicit claim that only the common law is “real” law — along with the US Constitution (as interpreted by originalists), if the writer happens to be American.

The genre is not a new one. I have more than once in this blog cited Lord Bury’s The New Despotism (1929) with approval. And I openly admit to being in sympathy with the idea that state action, in the guise of “administrative law”, tends towards overexpansion and poses a threat to liberty. However, when one descends to details, it is more difficult to say why administrative law is so different from other kinds of law in a way that makes it more dangerous/ illegitimate/ arbitrary or less law-like than common law and constitutional law.

Often it is argued that administrative law is a creature of executive power, and hence dangerous. But in a sense all law is the creature of executive power, at least insofar as laws require an executive for their enforcement. When the executive decides to neglect the enforcement of laws duly passed, this too is a form of arbitrary “tyranny” in which the executive usurps authority from the legislature. And yet this phenomenon curiously gets ignored by libertarians, though it happens all the time. My point is that, upon reflection, it is not always easy to draw a nice clear line between “executive” and “legislature”.

Similarly, it is also often argued that administrative law is undemocratic, because law-making power gets delegated to administrative bodies that are unelected. This may be true. But the argument loses some of its bite when we consider that the body doing the delegating is an elected legislature, and that the bodies to whom it is delegated are themselves created by that elected legislature. As such, administrative law clearly has at least some connection to a democratic process. And in theory it is always open to that democratic legislature to reverse the process, either dissolving such administrative bodies or taking back the law-making powers it delegated. (Of course, the public choice theorist in me recognizes that it is rarely that simple in practice.)

Furthermore, consider this: If it was a mistake for the elected legislature to have created such administrative bodies or to have delegated law-making authority to them, then who is to blame for this evil? Clearly the elected legislature. Which perhaps ought to make us wonder why we should hold these elected legislatures in such reverence.

Clearly articulating what is bad about administrative law is not as easy as many libertarian types would have us believe. I would like to present two more illustrations of this point, drawn from claims in Hamburger’s book.

At page 50, Hamburger notes that “extralegal legislation [i.e. administrative law] did much to provoke the development of constitutional law”. This is a historical claim. The point he is getting at is that what he calls “constitutional law” — but what I would prefer to call “constitutionalism” in order to sidestep the thorny issue of what exactly counts as “law” — arose as a defensive reaction to executive encroachment (think here of old King John at Runnymede or George III enforcing his horrific three penny tea tax at the point of redcoat bayonets.)

Hamburger’s point here raises a problem for his own larger position: If constitutional law arose as a reaction to administrative law, then the latter predates the former. Administrative law certainly predates any particular constitution that Hamburger is talking about — at least given his narrow definition of “constitution” as a form of government resulting from consent/agreement of the people (see p. 44). And yet throughout his book he relies on constitutional legal thought to undercut administrative law. He expects us to take for granted that the US Constitution acts as some kind of trump wherever it runs up against a practice, while he hasn’t really even bothered to defend this position. He is therefore begging the question. You can’t argue for the primacy or normative authority of constitutional law over administrative law by simply assuming the primacy of constitutional law. This is especially the case where it is open for one to argue at the very least that (i) administrative law is in many cases expedient and useful, and (ii) as a kind of law-making authority it pre-existed constitutional law.

However, to my mind, there is a deeper flaw in Hamburger’s book, and in most books like it. Hamburger has a tendency to slip back and forth between constitutional law and common law as if they’re somehow synonymous. They are not (especially, again, given his narrow view of “constitution”). There is almost nothing in the US Constitution that an Englishman living in the Middle Ages (the heyday of the common law) would find intelligible.

As it stands, this would just be a criticism about his loose use of language. But it has deeper ramifications. Hamburger offers a potted history of administrative law and its relation to common law and the rise of  constitutional law that is very selective, to say the least. For one thing, it only really covers developments from the Tudors on. This is problematic, because if he were to go further back, for example if he were to read Pollock and Maitland on English law before Edward I, he would find that the common law itself is mostly a creature of administration: the common law system of courts, etc. was created by the executive to solve administrative/ governmental problems. And what was the exchequer court but an administrative body? Yet it was considered a common law court. Therefore, historically, common law is (or at least was) administrative law.

The very term “common” law derives from the fact that it was the law as applied in all the King’s courts across the land, in what was a blatant usurpation of the local authority of his barons. In that sense the introduction of the common law was possibly the most audacious and far-reaching encroachment of state power in the history of the English-speaking peoples.

One might also mention the history of the Court of Chancery. In certain kinds of cases where it was found that the common law could provide no remedy or would work palpable injustice, appeal could be had to the Lord Chancellor. Now the Chancellor was an administrator par excellence, a minister appointed by and serving at the pleasure of the King, and to whom the King had delegated authority to grant remedies not otherwise available — to in effect make law. Would Hamburger therefore wish to say that equity (the law administered in the Court of Chancery) was mere administrative law, or that for that reason it was not law at all? If so, then we would have to jettison such areas of law as trusts and wills, and such remedies as injunctions and specific performance, which originated in Chancery. The simple fact is,

In the beginning, all law was administrative law.

And perhaps it is still so to a greater degree than we care to imagine.

Finally, Hamburger’s focus on post-Tudor developments leads him to overplay the role of Parliament (and hence elected legislatures) in the creation of law. In the first formative period of the common law, “parliament” would largely have consisted of what we call the House of Lords, in which there was no popular representation or participation. Even a little later, when the commons were allowed some representation, Parliament was essentially an advisory body, not a legislative one. Does that mean that there was no such thing as law in England before the struggles of the 17th century? Or that there was no constitution? The claim would be absurd, but it follows from just about everything Hamburger is arguing in this book.