Barbara H. Fried

The Limits of a Nonconsequentialist Approach to Torts

The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for ‘wrongful’ acts reflect corrective justice rather than welfarist norms. The literature is either silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful acts that pose some risk of harm to others (a category that describes almost all noncriminal conduct). This is no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives.

PROPORTIONATE TAXATION AS A FAIR DIVISION OF THE SOCIAL SURPLUS: THE STRANGE CAREER OF AN IDEA

This article considers a surprising resilient argument, going back to Adam Smith, for the fairness of proportionate taxation: that proportionate taxation represents the fair way to divide the social surplus produced by cooperation among all of societys members. The article considers two contemporary variants on that argument, one by Richard Epstein in Takings and one by David Gauthier in Morals by Agreement. It concludes that the normative and empirical assumptions that underlie these, and all other, variants of the argument are so implausible as to suggest the argument cannot be taken seriously as a defense of proportionate taxation. The article concludes by considering other possible explanations for the enduring attraction of proportionate taxation for political philosophers, particularly those with libertarian and quasi-libertarian leanings.

The Unwritten Theory of Justice: Rawlsian Liberalism Versus Libertarianism

When A Theory of Justice was published in 1971, utilitarianism was the game to beat in political philosophy, and Rawls made clear his intention to beat it. The appearance of Nozick’s Anarchy, State and Utopia three years later singlehandedly enshrined libertarianism rather than utilitarianism in the popular imagination as the chief rival to Rawls’s two principles of justice. Ever since, Rawlsian liberalism has had two parallel lives in political theory. The first - the version Rawls wrote - is a response to utilitarian’s failure to take seriously the separateness of persons. The second - the unwritten version ‘received’ by its general audience - is a response to libertarianism’s failure to take seriously our moral obligations to the well-being of our fellow citizens. This article considers how, had he written the second version, Rawls might have dealt with libertarians’ critique of ‘justice as fairness’ as fundamentally illiberal, and how his two principles might have been transformed in the process.

Why do Libertarians Love Proportionate Taxation? The Case of David Gauthier's 'Morals by Agreement'

This article examines one standard libertarian defense of proportionate taxation: that it is the obvious means to achieve a fair division of the social surplus generated by social cooperation. Focusing on the version of the argument developed in David Gauthiers Morals by Agreement, the article concludes that rather than leading to proportionate taxation, Gauthiers complicated formula for dividing social surplus (a variant of the Nash bargaining solution) at first cut leads to a tax scheme even more regressive than a head tax. Gauthier appears to conclude otherwise because he gets the implications of declining marginal utility of income for Nash-type bargaining solutions exactly backwards. Rather than implying that the poor will hold out for a greater relative share of the gain, the declining marginal utility of income implies that the poor will concede a greater relative share. The foregoing argument presumes that the only task of the social planner is to justly apportion the tax costs of running the state, against a background distribution of assets itself presumed to be just. When one takes into account the need, implicit in Gauthiers system, to use the tax system to correct the maldistribution of surplus value inherent in market prices, it becomes clear that Gauthiers scheme could imply almost any tax rate structure, from a steeply regressive one to (more plausibly) a steeply progressive one. In light of the difficulty of deriving proportionate taxation from Gauthiers premises, the article concludes that Gauthiers attraction to proportionality seems to be driven less by his premises than by the conclusion itself. Gauthier is hardly alone in this respect. Proportionate taxation seems to exert a strong, almost universal, pull on the libertarian imagination that resists logical explanation.