Martha Nussbaum's flawed foundations

Quarter of a century ago, Martha Nussbaum published a paper titled-  

Flawed Foundations: The Philosophical Critique of (a Particular Type of) Economics 

It maybe that people back then thought bullshit had foundations. It was certainly the case that few in India knew that Nussbaum and Sen had shit for brains. 

The success of Law and Economics obscures, to some extent, a striking fact: the movement has virtually ignored criticisms of its foundations that are increasingly influential in mainstream economics, and by now commonplace (at least as points to grapple with) in utilitarian philosophy.

This is foolish. First there was Law. Then there was Economics. Law existed because scarcity existed and crimes and torts occurred because of scarcity. Utility or ophelimity or some other such word meaning 'benefit' or 'usefulness' or 'motivation' would become the focus of jurisprudence. You killed my wife. How many goats do you owe me? I shat on your rose-bed. How many roses do you owe me?

'Capabilities' and 'functionings' too are things only defined in legal contexts. If your action poisons my land, you owe me one level of damages. More must be added if your action also destroyed my health leaving me unable to even my wipe my own bum. 

Welfare Econ only makes sense where there is a Government and therefore a Legal system such that rights and remedies of an economic nature are created under a bond of law. Law & Econ is the only proper way to analyze this. On the one hand, 'Hohfeldian analysis' of rights is required. On the other, we have to see if it is incentive compatible for the obligation's holder to provide the remedy under the relevant vinculum juris. If the thing is not incentive compatible, the right or entitlement will disappear. But people know this already. The Law is merely a Service industry. If it is useless, it will be disintermediated.

Finally, because of Knightian Uncertainty, only regret minimization, not utility maximization, will prevail. 

That's it. That's the whole story. Shite taught by Professors has nothing to do with either Economizing or the practice of Law. 

These criticisms are hardly new-indeed, in philosophy most of them have been around since the fourth century B.C., when Aristotle criticized Plato's ambitious attempt to propose a "science of measurement" dealing with ethical value.

Plato made no such attempt. He was attempting 'diairesis'- gathering things into categories or types. Ethical value is not economic as no scarcity is necessarily involved. Being good or evil is 'non rival'.  

By not informing itself about, and confronting, these criticisms, Law and Economics, which typically sees itself as a forward-looking and scientific movement, risks being stuck in the confusions that plagued philosophy during that interesting century.

Rubbish! Law & Econ, properly done, is about getting a better deal for workers or consumers or tax payers or vulnerable groups.  It isn't about Sen-tentious virtue signaling and parading one's ignorance of Plato or Aryabhatta. 

Law and Economics could be understood as involving simply a commitment to bring economics to bear upon law.

Coase started off studying Commerce at the LSE with a view to qualifying as a Solicitor. He wanted econ to improve mechanism design so less money needed to be spent on lawyers. The truth is there was always more and better econ in the law than in Econ textbooks. Aumann found game theory in the Talmud. But, ultimately, justice is a service industry. There is exit from jurisdictions with incentive incompatible mechanisms. 

Sen lived in a fantasy world where the Law is instantly and costlessly enforced. This means it can never happen that people who could commit a crime and go to jail would never starve to death. At worst, they'd eat porridge in a prison cell.  

So understood, the project would involve no particular claims about the proper foundations for economics.

It would be stupid useless shit. Law enforcement costs money. It is subject to diminishing or indeed negative returns. Understanding that you can only have as much effective law as it is economical to enforce is the beginning of Wisdom. No doubt, the Academy isn't where you'd expect to find that particular commodity.  

It would be as compatible with Amartya Sen's neo-Aristotelian conceptions

Sen has an Arrowvian conception featuring 'akreibia'- i.e. mathematical precision of a foolish kind because the subject mater does not afford scope for precision. This isn't Aristotelian. It isn't 'economia'. It is stupid shite indulged in by a brown monkey, from a starving shithole, for the sake of intellectual affirmative action. 

as with those used by the "Chicago School,"

Myerson could be called 'Chicago school'. Everybody was doing mechanism design by the time Nussbaum wrote this- including Sen's students like Dilip Mukherjee. Sen himself, obviously, remained blissfully oblivious to these developments.  

as hospitable to Adam Smith's complex cognitive analyses of emotion (based on Aristotle and the Stoics)

based on Smith being a Scotsman who was saying 'stop sticking dirks or dicks into everything. Be canny like the fucking English or fucking Dutch or other guys who make loadamoney.'  

as to the various views of preference and desire more commonly found in neoclassical economics.

There are no such views. Neoclassical econ has a notion of 'operationalizable' revealed preferences. But utility and preferences and 'choice' and 'welfare' etc are all Tarskian primitives. They are undefined.  

But in fact, although recently the movement has become somewhat broader, taking more account of approaches such as those of Sen and Smith, Law and Economics has been built on a particular set of conceptual foundations.

No. Historical and empirical information is usefully interpreted under that rubric. That's why the thing pays for itself. The alternative is to pretend that the Bench has a magic wand which it can use to cause all White Men to turn into Disabled Lesbians of Color.  

These involve at least the following ideas: that rational agents are self-interested maximizers of utility;

expected utility, unless Knightian Uncertainty obtains. 

that utility can best be understood (for explanatory/predictive purposes) as a single item varying only in quantity;

for a specific purpose or in a specific context 

that utility is best analyzed in terms of the satisfaction of preferences; that preferences are exogenous, i.e., not significantly shaped by laws and institutions; and that the ends adopted by an agent cannot themselves be the subject of rational deliberation, although agents may deliberate about instrumental means to ends.

this overstates matters but this is a defensible position more particularly because those who attack it are stupid and believe in magic 

All these ideas were at one time unchallenged in mainstream neoclassical economics;

because belief in magic was less prevalent back when Econ departments were small and less incestuous. 

all are currently contested, in part as the result of pressure from philosophy and its history.

i.e. drooling cretins who will get triggered if they discover that Professor has a dick. Dicks cause RAPE! Cancel dicks!  

The topic of endogenous preferences has received considerable discussion within the Law and Economics movement, and has by now become a major topic of the work of Gary Becker, one of the movement's mentors.

This isn't really a problem. We have an easy way to separate out the 'positional' or signaling aspect of 'endogeneity' and relate it directly to things like 'goodwill' or 'brand value'. I suppose a more complicated Kevin Lancaster type approach too is feasible. On the other hand, the fundamental problem remains that there is Knightian uncertainty as to what constitutes the commodity bundle. Moreover, you are entering the realm of zero shadow prices- i.e. no scarcity- and mimetic effects and so forth.

I shall therefore discuss it here only where it impinges on one of my other topics. I do think it significant, however, that the endogeneity of preferences has been recognized by almost all the major writers on emotion and desire in the history of Western philosophy, including Plato, Aristotle, the Epicureans, the Stoics, Thomas Aquinas, Spinoza, and Adam Smith, not to mention countless contemporary writers in philosophy and in related fields (such as anthropology and cognitive psychology).

Preferences arise from oikeiosis. Oikeiosis arises coz dicks prefer to cum in veejays. Baby turns up and suddenly only Baby matters.  

It is therefore a sign of the problem I am discussing that Becker and others entertained this idea only recently,

Where is the endogeneity in Sen's Choice of Technique or the Sen-Dobb thesis? Math is the binding constraint on Mathematical Econ. That's why its Professors are stupider than illiterate brokers. 

when work on phenomena such as addiction made its importance obvious,

i.e. pandering to it became very very lucrative 

despite the fact that it had importance as well for earlier work on human capital formation.'

there was no earlier work on 'human capital formation'. It was assumed that people who went to University would become stupider and more useless. Still, they might get closer to God or gentlemanliness or something of that sort. Anyway, it was better if the jeunesse doree spent some time bumming each other or discussing Plato rather than hanging out exclusively with their pimps and parasites. 

Adam Smith evidently believed that a pretty good way for an economist

which he wasn't. He was a pedagogue. Economists were in charge of the finances of countries or big enterprises.  

to spend his life was to teach and read a great deal of philosophy;

Because he taught 'Moral Science'- stuff like why you shouldn't stab McTavish even though his Uncle stabbed your dad after your dad killed his cousin who had raped your grandfather who had burned down the McTavish castle in revenge for his McTavish bride not being a virgin but rather a goat- and not the cute kind either. 

he may have been right. Let me now, however, turn to seven issues less frequently discussed where the same problem, I believe, obtains: powerful philosophical arguments that cast doubt on current foundations are being ignored.

Because 'powerful philosophical arguments' are stupid shit. 

As we proceed, it is important to bear in mind that Law and Economics is, in effect, both an explanatory/predictive and a normative theory.

Nope. It's an approach which admits that Law aint magic. It is just a service industry.  

Typically it presents itself as explanatory/predictive;

Fuck off! Nobody can predict what stupid Judges will do next. What we can predict is that jurisdictions which do stupid shit will be disintermediated one way or another.  

but through a certain characteristic use of the concept of rationality, it ends up making normative judgments as well. Thus Richard Posner, for example, both characterizes (most) human behavior as rational in the precise descriptive sense he gives to that term, and then, shifting over to a normative use of the same term, blames certain other agents for not conforming their behavior to those standards.

So what? It is obvious that any description can have a normative interpretation. If you say to me 'you are alive', this is descriptive but is it not also normative in the sense of 'you should have gone to die fighting Putin in Ukraine you worthless lump of shit'.  

I shall attempt to distinguish these two uses of the theory wherever that is possible and relevant.

It is never relevant. It is obvious, in both Law and Econ, that there is a sensible thing to do and if you don't do the sensible thing then the consequences won't be good. That's why, if charged with murder, you should say 'not guilty', not 'fuck you Judge. I will kill and eat you as I have killed and eaten everybody else I've ever met'.  

My economic examples will generally be drawn from the areas with which my work has made me most familiar: development and welfare.

Martha was very familiar with Amartya Sen. That's a cool way of acquiring expertise.  

I. PLURAL UTILITY AND NON-COMMENSURABILITY A commitment to the commensurability of all an agent's ends runs very deep in the Law and Economics movement.

No. All that matters is whether choice under scarcity arises- i.e. one and only one 'ratio' is picked. There is an opportunity cost with going with a particular defense or settling upon a particular criterion to decide a case. Obviously, commensurability arises when such choices are made. But those choices could be stupid. If I am charged with murder I should not threaten to kill and eat the Judge even if that will make me look cool. This is because I really won't enjoy being raped in prison for decade after decade. 

Even when a plurality of distinct ends is initially recognized, the underlying view that agents are "maximizers of satisfactions," and that satisfaction is something that varies in degree rather than in kind, leads the theorist rapidly back to the idea that distinctions among options should be understood in terms of the quantity of utility they afford, rather than in terms of any basic qualitative differences.

In Law as in Business, we often have to accept or offer monetary compensation in lieu of specific performance or the restitution of status quo ante. 

(Thus Posner, having identified three distinct ends of sexual activity, proceeds to treat choices and tradeoffs between them as if they were choices between differing amounts of a homogeneous good.')

The law distinguishes between consensual, non-consensual and sex which is illegal even if it is consensual. This does not mean the act itself can be differentiated sui generis.  

Even though this is not offered as an account of how agents internally view their choices, it is assumed that casting choices this way will allow us to make correct predictions about the behavior of most people.

That is an empirical matter. We have an 'existence proof' that a mathematical function must exist, if only 'at the end of time', which does indeed predict behavior. For some specific purpose- e.g. to settle a law suit- this is a useful assumption. The alternative may be vendetta- an eye for an eye till the whole world is blind.  

Plato (and Henry Sidgwick, following his lead) proceeded in just this way, holding that we would have an adequate ethical science only if we did establish it as a "science of measurement," in which all the diverse values that people ordinarily pursue were understood as merely different quantities of a single overarching value.

Money. That's what things come down to though in egregious cases we may also want peeps to spend some time getting ass raped in jail.  

They took this course because they believed that only in this way could human action be systematized and rendered lawlike.

No. They noticed that this is how things actually worked in the world. In Sidgwick's time, I could sue the guy who was porking my wife and get money from him by way of reparation. This was better than my hiring a guy to chop his bollocks off which would provoke him to have my son killed etc.  

But they portrayed their project from the start as radically revisionary, rather than explanatory of current behavior: they were offering people a tool by which they could think and act more "scientifically," and hence behave differently- not offering an accurate way of explaining and predicting what real people think and do.

It makes sense to substitute monetary reparation for an 'eye for an eye'. Replacing a 'thymotic' or 'timocratic' society with something more commercial and slow to anger can help defend a country which otherwise would become a dependency of a richer neighbor. 

The other point is, though 'tit for tat' is eusocial, it entails punishing those who don't or can't retaliate. A better alternative is risk pooling but this means there will be some sort of costly signal based separating equilibrium which focuses on 'uncorrelated asymmetries' and thus yields bourgeois strategies. 

Indeed, according to Plato's highly persuasive account,

where? He says one thing here and another thing there 

the genuine recognition of values as commensurable would change human action utterly, removing the passionate longing for distinct individuals that gives much of human life a messy character, and even removing the common phenomenon of akrasia, in which an agent judges one course of action better than another but does the worse.

If 'genuine recognition' involves having a 'harmonious soul' or  'participating' in the Platonic form of a virtue- sure. The problem here is that 'uncorrelated asymmetries' exist. This means that even those with the same Bayesian priors or those with 'Aumann agreement' that x is the better course may act differently. The right action for Socrates is not to go into exile like Protagoras. After all, Socrates was born in Athens. His death might be therapeutic for his City. 

Plato convincingly argued that a person who recognized no qualitative distinctions in value would never have this problem, and would therefore behave very differently on a number of important occasions. Following his lead, later philosophers had a great deal to say about the "therapeutic" advantages of commensurability in altering human behavior, removing, for example, many grounds for emotions such as jealousy and anger that currently explain a great deal of human action.

A business-like attitude is all very well but we have oikeiosis and thus uncorrelated asymmetries as well. But plug in 'regret minimization' and the Price equation and you have a good enough macro theory. But then our interest is in good enough theories. A perfect theory would not be able to pay for itself in terms of survival value.  

Sidgwick, too, insisted that a true utilitarian agent would choose differently from most people, although for complicated reasons he thought that society, to be well coordinated, should contain only a small number of such agents.

Arbitrageurs or market-makers straddle coordination and discoordination games. But we don't need a lot of them. It makes sense for some people to specialize in buying and selling- which is basically about value discrepancy and establishing commensurability through market operations. 

If we consider some central texts in Law and Economics,

there are no 'central texts' because a guy smart enough to write one has better things to do with his time. 

the Plato/Sidgwick claim is borne out: we see the world remade, not the world we live in. For example, Posner's descriptions of human sexuality, in Sex and Reason, do not convey the sense that we are looking at sex the way people generally look at it; instead, a perspective of lofty detachment has flattened and simplified things that are usually messy and real.

Porn isn't messy or real. Lots of sex is sex in the head. But it is also the case that a lot of sex has an economic component which is pretty flat and simple. 

More important, it would appear that Plato and Sidgwick are correct about the magnitude of the differences: they seem sufficient to affect greatly the model's predictive value.' This criticism (put more generally) is by now a common point in mainstream economics.

How? It is a fact that if the price of a blowjob goes up, ceteris paribus, fewer people get blow jobs.  

Invoking John Stuart Mill's version of this ancient point, Amartya Sen, for example, has argued that welfare economists, to have an adequate predictive theory, should understand utility "primarily as a vector (with several distinct components), and only secondarily as some homogeneous magnitude."

But Sen's work has had no fucking predictive value at all.  In any case, if choices are made under scarcity, there will always be, by the, Szpilrajn extension theorem (assuming Zorn's lemma) a mathematical function such that a homogenous magnitude will exist. But it is unlikely to be computable in the life time of the universe.       

Such a view will offer, he claims, "a significantly richer descriptive account of a person's well-being,"

But Sen can't provide it. Anyway, nobody really wants a rich descriptive account of their own well-being based on continually having to supply blood samples and stool samples and alpha wave readings and guys holding a magnifying glass to your dick as you jerk off. Still, if I was suing Elon Musk for 100 million dollars based on some imaginary injury I sustained from one of his cars, then- sure- I might put up with that sort of thing till Musk settles out of court. 

in ways that  make better predictions possible.

Where are those predictions? It is a different matter that for any specific purpose- e.g. selling computer keyboards- scientific studies may be carried out to measure the comfort or well-being of the user so as to capture more market share or to differentiate the product. But, ultimately, on open markets, these things will be reflected in price- so they do become commensurable. I may spend more on an 'ergonomic' keyboard because I type a lot, but I skimp on jogging shoes because I only go jogging once a decade.  

Whether these predictive differences are significant enough to affect the usefulness of models remains, of course, an empirical question; the answer may well vary from one area of economics to another. Sen has made a good case, however, for the conclusion that welfare and development economists must confront this issue and produce arguments that either refute his position by applying utility theory to predict messy real world human behavior, or incorporate plural vectors in models that better predict real world behavior.

Sen didn't understand that Development Economists were supposed to help countries actually develop. He thought their job was to 'predict messy real world human behavior'- e.g. feeling miserable coz of lack of food- or to 'incorporate plural vectors' though vectors are plural by definition. Also there is no way to stop a vector being turned into a scalar. 

Sen's challenge remains unanswered.

Because countries started to develop rapidly through Tardean mimetics, not tedious mathematical models.  

Sen's criticism does not rely on the idea that assumptions must be realistic.

It is does not rely on anything at all. It attacks a straw man.  

Milton Friedman long ago correctly argued that positive economics, like other sciences, can and should use simple assumptions that do not in all respects correspond to the complex phenomenology of real human action.'"

Friedman was saying that the best model is the one which makes the best predictions. Sadly, his own model was shit.  

What is at issue is the question whether the assumptions are too crude, so oversimple that they fail to single out those aspects of the world that are most salient for predictive purposes.

But the purpose of the prediction is to make or save money. That's what matters.  

Here the Law and Economics movement has tended to follow the views of Karl Popper,

Fuck off! Popper was a philosopher- i.e. a stupid cunt.  

who held that even extremely crude assumptions are frequently aids to scientific progress: as experience falsifies them, they are reformulated and progress is made.

Sadly, 'Scientific Method' turned out to be useless. Some guys taking LSD could discover cool stuff even if they believed in UFOs and anal probes- like Nobel Prize winning Chemist Kary Mullis.  

But Popper had an extravagant admiration for the hypotheses of the ancient Greek preSocratic philosophers.

That was a fad back then. 

Thales's dictum that the world is made of water and Heraclitus's opposing claim that everything is fire were to Popper bold conjectures that promoted good prediction and scientific discovery!'

Popper discovered shit. Nobody gives a toss about him.  

Sen's point, in essence, I think, is that the assumption of commensurability is all too like Thales' assumption: too simple to lead to illuminating and pertinent prediction.

A lawyer who can predict what the judge will decide is worth hiring. An economist who can predict prices is a useful guy to have on the payroll. Law and Econ aint like Physics or Cosmology. There is an immediate cash value to good predictions. Popper has nothing to do with this.  Sen never saved anybody time or money. His shtick is a bureaucratic/academic waste of time attractive only to virtue signaling imbeciles. 

If commensurability leads to inadequate explanation and prediction, does it still, as Plato and Sidgwick thought, offer us a normative theory of rationality that will help us remake our world?

We can't remake our world. We can win law suits or make or save money. A normative theory of rationality is no big deal. Saying 'it's super-cool to be rational' is easy-peasy. Nobody should get paid for this.  

Again, the philosophical tradition from Aristotle to Mill has given us many reasons to question this idea.

But the philosophical tradition has given everybody no reason at all to listen to stupid cunts who teach worthless shite to imbeciles. 

Complex accounts of reasonable choosing put forward in Aristotle, Mill, and other more recent philosophers show us that there is no good reason to suppose that commensurability is a prerequisite of rational choice in the normative sense. 

But what is isn't a choice is normative or imperative. We often say 'I had no real choice. All the reasons you are now giving me for why I shouldn't have done what I did are wholly irrelevant. The plain fact is I did what I had to do.' 

Choice isn't the same thing as behavior. It is a normative concept because volition is involved. But we might not feel there is a choice involving will power in a particular situation. Equally, we may have absurd beliefs about what we can choose to do- e.g. levitate if only our will to do so were strong enough.  

Furthermore, they show us that to make two ends commensurable when there are good reasons for thinking them distinct in quality is itself a piece of irrationality, one that can frequently be explained just as Plato and Sidgwick explain it: as a reaction against the complexity of life and as the expression of a desire for a purer and cleaner existence.

A cake is different from another cake. An act of choice involves making them commensurable. Life may be complex but picking chocolate cake over strawberry cake isn't a big deal.  

But such reactions are not always rational in the normative sense: they may express hatred of a world that contains surprise and suffering, and a desire to punish those elements of the world that occasion surprise by refusing them the recognition that their qualitative distinctness urges.

And sometimes people just go kray kray. So what?  

One area in which the refusal to recognize plural ends has been especially pernicious is development economics,

Development econ was pernicious. Poor peeps need to simply imitate what smarter peeps be doing. The same is true of Governments. 

by now heavily intertwined with law and normative public policy.

only by shitty virtue signalers.  

Until rather recently, "the quality of life" in a nation was assessed simply by enumerating GNP per capita.

No it wasn't. Per capita income was deflated by a purchasing power parity index. Come to think of it, Henry Ford was a pioneer in this respect.

This crude norm did not even make salient the distribution of wealth and income, and thus routinely gave high marks to nations such as South Africa, with its tremendous inequalities.

but good quality of life. That has turned to shit because crime and immigration has risen so steeply. By 2001, the UN reckoned Quality of Life had decreased over the previous decade. But then so had real per capita GNP.  

Still less did it ask about the connection of GNP to other areas of human functioning that are important indicators of quality of life: areas such as life expectancy, infant mortality, educational attainment, and the presence or absence of political liberties.'

But there had been plenty of such indices before Sen gatecrashed that party. He added no value whatsoever.  

More recently, a plural-valued approach inspired by Aristotle has begun to have considerable influence on the ways in which international agencies make normative assessments.

The World Bank had been able to help China in the Eighties. It couldn't help India in the Nineties. Why? 'Normative assessments' enabled 'activists' and NGOs of various types to gain money and fame by preventing development. Then, in places like Gujarat, a counter-activist appeared who systematically destroyed the reputations of lying, cheating, virtue signaling scumbags. But this was happening all over the world. Nussbaum & Co had shat the bed and were then compelled to lie in their own filth. As for 'international agencies', power passed from them to billionaires.  

This progress needs to be acknowledged in areas of Law and Economics that deal with human welfare.

Law and Economics ran away from areas where worthless shitheads would congregate to talk about why nothing should be done till everybody recognized that dicks  cause RAPE.  Ban dicks immediately unless they belong to transgender rapists. 

One corollary of the recognition of qualitatively distinct ends is

that we don't have to listen to this shit. There is 'food for thought' and there is stupid stinky shit. They are qualitatively different.  

the recognition of contingent demand recognition.

so recognition involves recognizing that recognition is recognition- what an amazing discovery!  

Once again, this is an issue that has inspired a large literature in philosophical and, by now, economic accounts of rationality.

Which all proved to be worthless. Meanwhile smart peeps were busy inventing useful stuff.  

It seems reasonable to think that the recognition of such contingent conflicts is both an important part of daily life,

No. Recognition only arises where there was previous knowledge or there ought to have been previous knowledge. In the case of a legal claim, over the course of a law suit, one party may stipulate that they recognize a Hohfeldian incident which they had previously denied. In this case, there is something like admission. However, recognizing that there is a conflict does not mean that any 'contingent demand' is recognized. I can recognize that my creditor wants me to pay back the loan I took from him. I can recognize that our views conflict. But I don't have to recognize that his demand is contingent on anything. I simply won't pay. I suggest he is harassing me because he is in lurve with me. 

influencing behavior in ways that are significant, and also an important part of a normative account of social rationality.

but such 'normative accounts' aren't important at all. They are excluded from 'social rationality'- as opposed to the psilosophy of pedagogues- because they are useless or mischievous. However, they do serve a signaling or screening function such that nice boys are supposed to say 'boo to dicks! Dicks cause RAPE! Ban dicks immediately except in the case of transgender rapists.'  

Conflicts in which the competing concerns are not in principle irreconcilable, but the conflict arises from the structure of a particular situation, can alert us to the presence of irrationality and/or injustice in our social institutions.

No. It just shows that some of the people present have no interest in doing anything useful or getting anything useful done. They are merely going to beat their own favorite drum which, in turn, means that other people start beating their own drum. My point is, how can we even begin to recognize the problems posed by institutional racism and gender bias till we have acknowledged that the Iyers were only expelled from Iyerland by leprechauns because Iyengars have been putting about horrible rumors that the reason my sambar is so tasty is because I add garlic to it. I'm not saying Varadkar does so, but Marathas are notorious for being under mind-control by Iyengars.  

We notice, for example, that although women and men in our own world face many painful conflicts between the demands of child care and the demands of work,

This is nonsense.  Those who would face 'painful conflicts' don't have kids. Sadly, some have abortions or don't have sex in the first place. 

It is a different matter that some Moms like moaning about how having to change nappies is causing them to miss out on becoming the next Elon Musk. 

this conflict is not intrinsic to the goods involved, and could be either reduced or removed in a world with more public support for parental leave and child care, and less hostility to parenthood in the established structure of careers.

Fuck off! Women are gonna moan about what a time-suck their kids are even if they are the fucking Queen of England. You don't hear us men complain about how having to inseminate wifey is cutting into our working time.

Notice that this kind of recognition of moral dilemmas entails the rejection of the economic principle of the independence of irrelevant alternatives:

There is no such principle. Arrow had to make some stupid assumptions to get to a meaningless 'impossibility' result. Moral dilemmas don't involve scarcity and hence are outside the scope of Economics. As for the law, it doesn't matter why you break it, what matters is whether you break it or not.

we make progress by comparing our present set of options (unfavorably) with another imaginable set, in which agents could fulfill all their deepest commitments without conflict.

No we don't. We waste time by imaging a world where teacher gives you a BJ not an F on your term paper and you don't have any conflict with the mean kids who beat you and take your lunch money.  

 There are many deep questions here; I have only gestured toward them

Why not fart towards them?  

. They need to be debated in any adequate merger of economics with law

There is no such merger. Econ is about choice. Law is about judgment. Law & Econ is about how a particular service industry and how to make it better so the economy improves. It should merge Hohfldian incidents into Mechanism Design, but this doesn't need to be done explicitly. The game- or reverse game theory- is not worth the candle.  

Suppose we now supply Law and Economics with a richer account of utility: is that the end of the problem?

A richer account of utility would have considerable predictive power. Suppose you could tell me which tie I should wear for my interview such that I'd get more utility as a result of getting a well paid job. In that case, you'd be making millions as an image consultant or something of that sort.

If you know how to make stuff more useful, you will yourself be considered very useful and thus will have high status or income.  

There are many reasons to think it is not. Utility is standardly considered (for example, by Posner) as a state of the agent, a state of satisfaction. Here Law and Economics follows both Jeremy Bentham and Sidgwick;

Nope. Nobody actually reads either. We hear about Sidgwick when introduced Game theoretic notion of the 'core'. Pareto's ophelimity is in the relevant genealogy. Nussbaum, like Sen, is not well versed in the literature. 

even if we add a Millean account of the plurality of satisfactions, we are still dealing only with states of well-being.

No. The same utility may be associated with different 'felicity' states for inter-temporal reasons.  Well-being doesn't matter. What matters is survival. We are prepared to sacrifice present well-being so as to continue to suffer rather than go extinct. 

But agents also act and choose, and this makes an explanatory and a moral difference.

We may act and choose in a stupid or mischievous manner. Explanations and talk of morality, too, may be stupid or mischievous.  

In addition to states of well-being, people value and pursue their own agency.

only in the sense that they value and pursue farting.  

They do not typically view as equivalent two states of the world, one produced by their own agency and the other not.

Yes they do. Indeed, they prefer being given stuff for free rather than having to use their agency- i.e. blood, sweat and tears- to get the same outcome.  

Aristotle argued that for most people the main thing that makes life worth living is voluntary action, and that people would not choose any amount of contentment if it were not accompanied by space for choice and practical reason: to do so would be to "choose the life of dumb grazing animals."

But everybody would have preferred to inherit huge wealth and then hire a sophist to talk bollocks for their amusement. The general opinion was that sheep have more sense than philosophers. 

" Criticizing Bentham, Mill similarly spoke of the difference between Socrates unsatisfied and a pig satisfied."

Mill tried to prevent the East India Company- for which he and his daddy had worked- from being abolished. The prig was left unsatisfied. Socrates was killed. Some pigs escape that fate. 

Any theory that ignores this distinction thus courts gross explanatory inadequacy.

But 'explanatory inadequacy' is ignored by sensible people. We don't need to know why Colonel Mustard killed Professor Plum with a dagger in the drawing room. We just need to prove that that's what happened. 

(It makes it very difficult to understand why people struggle so hard for various types of freedom and agency, as they clearly do, why for many people in the world of my childhood the slogan "Better dead than Red" had profound explanatory significance, and so forth.)

Killing Commies was good for the economy. Going Commie would mean not being able to buy lots of shiny stuff.  

It might be claimed that the value of choice and practical reason can be cashed out in terms of a "psychic good" that can be understood to be a part of utility.

Or it can be seen as 'regret minimizing'. Invest in ICBMs because if you don't you may live to regret it. It is useful to have 'hedges' against catastrophic events.  

But such arguments need to be made; they certainly run the risk of making the concept of utility utterly vacuous and lacking in predictive value.

No they don't. There is a big and growing Insurance industry. Providing hedges of various types keeps the Finance Industry in affluence. Actuaries and Economists earn good money working out how much risk aversion there is and then how big a profit can be made through 'risk pooling'. 

Any approach along these lines must show how it can solve this problem.

The cash value of expected utility theory is the big big bundles of cash made by those who apply this theory and who make predictions in Financial markets.  

Once again, the problem may be more serious for some areas of Law and Economics than for others, but it needs to be addressed.

It is addressed by smart peeps who make loads of money by doing so. Professors of shite subjects are not consulted. 

If a focus on well-being to the exclusion of agency offers inadequate explanations, it seems even more clearly inadequate as a normative theory of rational choice.

Only in the sense that an economic theory which does not mention the need for respiration and defecation is inadequate. 'Agency' is a meaningless word used in Grievance Studies- 'noting about us, without us' just means hire more of us guys to pretend to solve the sort of problems us guys are supposed to have.  

For it seems normatively irrational (and seems so, indeed, to many of the founders of the Law and Economics movement, with their strong libertarian affiliations) to consider two states of the world equivalent when one involves the liberty of action and the other does not.

The latter is better. I may be safe enough because I'm known to be an excellent shot. But it is better for me to live in a world where the police arrest bad guys and so I don't have to walk around packing a pistol. 

Again, it is not my contention that Law and Economics cannot meet this challenge; economics has done so already, in quite a few ways. But the challenge cannot simply be ignored, and the answer will need to be subtle enough to grapple with the considerable philosophical literature that by now exists on this question.

But that philosophical literature is shit.  

Like the plurality of ends, the distinct importance of agency is by now routinely recognized in development economics.

No it isn't. Actual development happens when 'Agency' is reduced. Getting girls out of rural shitholes and into giant factory dormitories is the way to go. Everybody getting a micro-finance loan to sell trinkets by the roadside is a recipe for chronic poverty. 

The dominant approaches of both Amartya Sen and Partha Dasgupta (along with Sudhir Anand, Jean Drbze, and many others

have been completely ignored by any country which has actually developed.  

) make it a matter of course to recognize distinct domains of human functioning and capability that are not commensurable along a single metric, and with regard to which choice and liberty of agency play a fundamental structuring role.

That is why they are useless. Essentially, these nutters make the policy decision space 'multi-dimensional' and thus- by McKelvey's Chaos theorem- subject to 'agenda control' such that any horrible (but 'rent-creating' and therefore corrupt) outcome whatsoever is possible. Multi-dimensional Trade agreements quickly collapse or are counter-productive. Canada was forced to go in for environmentally disastrous projects because it found itself bound by a Trade agreement intended to fuck over the Mexicans.  

Moreover, far from being recondite philosophical subtleties, these notions are in common use by international agencies,

which is why they turned to shit 

structuring their ways of measuring welfare and quality of life.

i.e. pretending- as Sen did- that Bangladeshis were better off than African Americans in Harlem while Castro's Cuba was Paradise on Earth. 

This shows that taking conceptual distinctions seriously does not hobble science or policy;

it makes them useless. We must radically change the way Mathematics is taught such that the answer to every question in Arithmetic is '69'. True our Nation will decline as a result, but surely it is more important to promote alternative types of sexuality?  

it actually enables both to progress in humanly useful directions. Neglect of agency brings with it a common corollary: neglect of the separateness of persons as an important issue in personal and social choice.

Evil Economists are forcing everyone to squeeze into the same pair of underpants. They don't understand that human beings are separate from each other.  

Sidgwick, for example, proceeded as if the satisfactions of all rational agents could be regarded, for purposes of choice, as fused into a single system; the boundaries between agents were not regarded as salient when one considered how to augment society's total welfare.

Which is why nobody bothers with that cretin.  

No philosopher I know of has ever argued that this kind of boundary-neglect provides an adequate explanatory theory,

Why not? The Price equation has empirical validity.  

and it is obvious that it does not. '

This is not obvious at all. If human beings evolved by natural selection on an uncertain fitness landscape, then it is unlikely that the survival of a particular set of embodied genes is maximized by those genes. There must be an 'extended phenotype'.  

People care deeply about the difference between a pain in their own life and a pain in China (to use Adam Smith's graphic example).

No they don't. They may care more about a pain in China caused by a new virus than the fact that they just stubbed their toe.  

Even Buddhism, in which this disregard of individuation is regarded as normatively superior, presents itself as a revisionary theory that does not offer good accounts of actual behavior.

Nonsense! Buddhism thinks 'individuation' of a proper type leads to the attainment of Nirvana. All beings, by doing good actions- e.g. serving Buddhist monks- can get reborn as Buddhist monks and then gain liberation from the wheel of re-birth. Buddhism offers a good account of actual behavior though, no doubt, somethings are explained by karmic residues from previous lives. 

What might, however, be argued is that neglect of boundaries provides a normatively superior theory, by breaking down a kind of irrational egoism that leads us unjustly to rig things in favor of our own position.

Egoism may be rational. But it may be evil.  

This is one of the most difficult issues in moral and political philosophy; I cannot even adequately describe its complexity here.

What's complex about saying 'selfishness is evil'? The point about imperative or normative statements is that even babies can make them with equal effectiveness. 'Bad Daddy!' is just as good as a long lecture on why you should get off the couch and play with your kid instead of watching Netflix. 

Suffice it to say, however, that much good argument suggests that neglect of boundaries is not the best way to ensure the most relevant and justice-producing impartiality.

Boundaries still exist. Nobody is saying that furniture too is part of Humanity. Be nice to your couch. Don't hurt its feelings.  

The separateness of one person from another can be strongly defended as a basic fact for ethics and politics, one that will stop a normative account from justifying one group's extreme misery by pointing to the extreme satisfaction of another group, as classical utilitarians often do.

Rapists in jail may be extremely miserable. Their potential victims may experience great satisfaction at this outcome. There's nothing wrong with that. Still, the fact is, if rapists are much more productive than their victims, rape may be effectively de-criminalized. There may be a proviso that the rapist marry his victim or else pay monetary damages- but even that may go by the board.  Ultimately, the Law is merely a service industry. If the remedy is incentive incompatible, it will cease to be supplied or there will be severe service provision discrimination.

Now there are certainly arguments on both sides here; many thinkers in Law and Economics will probably wish to defend Sidgwick's normative views against the criticisms of John Rawls, T.M. Scanlon, Brian Barry, and others.29 But then they will need to grapple with the arguments; this has not yet been done.

Because those guys were obviously stupid. Rawls didn't get that, because of Knightian Uncertainty, what we'd choose behind a veil of ignorance, is some minimal type of social insurance- i.e. risk pooling. Scanlon, too, ignores Knightian Uncertainty. According to his formulation all acts are wrong because all principles permitting it can't be reasonably rejected in some scenario. It is right to kill your baby if the Galactic Overlord will destroy the planet if you don't. Our problem is that we never know which world we are living in. As for Brian Barry- the plain fact is that his own people rejected his privileging of equity. Dagenham Man voted for Mrs Thatcher. 

The Coase/Posner tradition didn't have to grapple with stupid Lefty Dinosaurs from the Sixties because the working class had rejected their shite. By contrast, people like Obama found 'Law & Econ' useful because it encouraged, statistical 'pattern and practice' research which could become the basis for 'consent decree' based reform. It wasn't necessary to change everything before anything could be changed. Piece-meal social engineering worked just fine so long as you told woke nutters to fuck off. 

III. LIBERTARIANISM, UTILITARIANISM, PARETIANISM Practitioners of Law and Economics typically rely on the ideas of utilitarianism, for example, the idea of wealth maximization.

Scrooge is a wealth maximizer. He had a miserable life. Two thousand years ago, Epicurean economists had laughed 'wealth maximization' out of their discipline. 

They typically also portray themselves as libertarians, committed to giving personal liberty of choice a strong degree of priority.

Not really. Liberty is expensive to guard on your own. It is cheaper to have risk pooling and collective security. But incentive compatibility is key to a vinculum juris actually being effective.  

Finally, they characteristically endorse Pareto optimality as a normative criterion of social choice.

No. Pareto optimality is achieved if I steal your new jacket because I look cool in it whereas you look like a homosexual prostitute. The Law does not permit this sort of transaction. 

However, new technology which greatly expands the 'common knowledge' information set and lower transport and transaction costs can lead to Pareto improvements. Thus Ebay and lower shipping costs have enabled us to get rid of stuff we don't use so as to buy stuff others weren't using or which they can more cheaply supply. 

But these three views are not all consistent.

Nor do they exist outside some shitty academic cul de sac.  

Insofar as utilitarianism is committed to aggregating utilities across persons and pursuing the greatest total (or average) utility,

But nobody is actually doing that! Even where Human Development indices are constructed, people stop paying any attention to them because they make stupid claims- e.g. Chavez's Venezuela was ahead of Chile, etc.  

it is committed to respecting liberty rather less than most libertarians (and most liberals) would wish to do. If infringing political liberties and liberties of expression, speech, and conscience turns out to be what in fact, in some circumstance, maximizes utility, the utilitarian favors that course as best.

So do we all. Lock up evil bastards who publish child porn or ISIS propaganda.  

(Obviously, we are focusing on normative issues here.) Libertarians, by contrast, are committed to giving liberty priority even when that does not maximize welfare. It has long been recognized that in this respect the two positions are on a collision course."

Unless they aren't- which tends to be the case.  

One may grant, along with Mill, that liberty frequently does enhance social welfare; ' but once one grants the distinction it is implausible to suppose things will always be thus. And if one tries dogmatically to rig things so that restrictions on liberty always result in more utility losses than gains, one is simply robbing the idea of utility-maximizing of any predictive value.

No. The prediction is that the jurisdiction which restricts liberty will face exit or disintermediation.  

This has been belatedly recognized in at least some parts of the Law and Economics movement. For example, Posner has recently stated that his economic approach to the regulation of sexuality is in tension with the normative libertarianism he espouses.

So what? If you are thinking properly, such tension must exist. The alternative is to be a Gandhian Marxist with a strong ethical compulsion to kill Jews, Homosexuals and people who read the Daily Mail. 

But why did we have to rediscover the wheel? Once again, grasping established distinctions in philosophy would have made more progress possible sooner. As for the relationship between Pareto optimality and libertarianism, it is much debated. The huge literature by now responding to Amartya Sen's The Impossibility of a Paretian Liberal

is as useless and stupid as Sen's essay. The fact is, Liberals believe in the Rule of Law which in turn establishes Hohfeldian 'incidents' or immunities. Thus a Liberal is committed to disregarding 'nosy' preferences because my neighbor has a Hohfeldian immunity to do as she pleases in her own house. I may be outraged that she is reading a thriller instead of the Bible, but my preference in this regard is not part of the Social Welfare function. 

It is quite true that a Democracy can decide to become Illiberal. It can punish people who read thrillers instead of the Bible.  

has shown, at any rate, that there is no easy way of resolving the tension between the two principles, so long as we do not exclude nosy preferences from the social choice function.

Which is what Liberalism does. 

Many different approaches have been tried by many philosophers and economists, and we would expect writers in Law and Economics to acquaint themselves with those debates more than they have in fact done.

Not if we think they are sensible people. Why read stupid shite?  

IV. RATIONAL DELIBERATION ABOUT ENDS It is a dogma of neoclassical economics, and of rational choice theory, that we can deliberate rationally only about the instrumental means to ends, and not about the content of ends themselves.

No. It is a dogma that positive economics is not concerned with value judgments.  

This dogma, which relies on the idea that our ends are hard-wired by exogenously given tastes,

This assumption is not necessary. Positive economics can accommodate 'demonstration' and other 'mimetic' effects. The thing is empirical. 

has been seriously shaken by the recognition of the endogeneity of preferences.

No. If the thing is observable, positive econ can simulate it.  

The recognition that we have some control over the shaping of our tastes (both through the shaping of laws, policies, and institutions, and through personal self-shaping and the educating of children) must at least make us ponder the question whether this shaping can be done more or less well.

That pondering was done long ago.  

But Law and Economics has not deeply investigated this question.

Because that's not where the money is. Still, we can extend Coasian analysis of the firm to an Educational system. Both 'internalize externalities' and seek to reduce transaction costs. Where the Higher Education system becomes dysfunctional- as has happened in India- the Govt. may disintermediate Universities and go for a skills-acquisition approach using a variety of service providers including web-based enterprises. 

In terms of both explanation and normative argument, this is a flaw.

In the opinion of a cretin. 

People do deliberate about ends all the time. To give an example close to home, a student who aims at becoming a lawyer does certainly deliberate about instrumental means to that goal: about how to get a good score on the LSAT, about which law schools to apply to, about how to do well once there. But he or she typically deliberates in another way as well, asking what counts as being a good lawyer-is it a matter of making money, or serving the poor, or seeking intellectual stimulation, or some complex mixture of more than one of these?

No. She may deliberate about what sort of lawyer she should aim to become- one who is good at making money or one who is good at helping the poor or one who applies her mind to cognitively complex issues in jurisprudence?  

Such deliberations, which seek to specify the content of a vague end,

There is nothing vague about deciding whether you are going to work for a white shoe firm making millions or if you are going to have a shopfront in a rundown neighborhood helping undocumented workers and battered women etc.  

do not have the simple vertical structure of means-ends deliberation. They typically proceed by moving horizontally, consulting other ends the person may have. How much importance does money have in her life? What commitments does she have to social justice? Does she want to have children? And so forth. Notice that all of this will not only lead to a more precise specification of the end, but also to a more refined selection of instrumental means: for it seems plausible to suppose that it will influence her choice of law school and courses of study. At the same time, her deliberations about lawyering will probably also cast new light on her other ends giving her a sense, for example, of how she might want to specify the vague ends of "having children," "serving justice," and so forth.

What is vague about 'having children'?  

And of course, in the context of deliberation about other ends-say, having children or serving justice-she may also ask about the whole end of being a lawyer, as to whether it is one she really wishes to pursue. This is how we really do deliberate in life, in this holistic manner that seeks broad coherence and fit among our ends considered as a group.

Nobody actually does this. You say 'I'm gonna work for a white shoe firm and make a lot of money' and your friends reply 'Nope. You are stupid and ugly and have a horrible personality. Do immigration law. Beggars can't be choosers'.  

This picture of deliberation was first advanced by

people who lived ten thousand years ago- if not earlier. Am I going to tend goats or grow wheat? On the one hand, God likes 'burnt offerings'. On the other hand, I may end up selling my birthright for a mess of pottage.  

Aristotle, and it has recently been prominently revived in some excellent work by David Wiggins and Henry Richardson. Both give detailed arguments about Aristotle's views that point the reader to all the relevant passages in Aristotle. 

Aristotle was selling pedagogic services. He needed to talk up his product. But, Alexander, his student, rejected his racist stupidity and went on to found a Universal Empire which reached India- from where Skeptical philosophy entered the Academy. 

Work by Wiggins, Richardson, and others has made it very plausible to suppose that considering the concrete specification of plural, interconnected ends provides a very good description of how real people deliberate, and a fact so central that it seems unlikely to be irrelevant to a model's predictive value.

Hamlet may have deliberated in some such fashion. He didn't do well. The plain fact is, because of Knightian Uncertainty, most of us go in for 'Tardean mimetics'- we imitate what smarter folk are doing.  

At any rate, if some area of Law and Economics wants to show that it is predictively insignificant, the argument needs to be made.

Why? Does Bill Gates or Elon Musk or Donald Trump deliberate in that highly artificial way? No. Nobody does- except may be the over-educated barrista crushed by Student Loans.  

It also seems clear that we can describe normative criteria for rationality within this type of deliberation.

e.g. don't make any big decisions when off your head on booze and cocaine.  That's totes naughty. 

Indeed, it would appear that any deliberation that doesn't include this kind of specificationist approach is bound to be blinkered and (normatively) irrational.

 But including a specificationist approach just makes you stupider and more useless than you would otherwise be. It is true, that any given moment, the Law may appear to define a right by an elaborate set of qualifications that specify when it does and when it does not apply. However, this is not in fact the case. The Bench may decide that a previous ratio does not extend to the present circumstances. In any case, because Knightian Uncertainty is ubiquitous, specificationism is only robust at the 'end of time'. 

Moreover, it can easily be extended to interpersonal deliberation, and thus to social choice.

Only if there is no Knightian Uncertainty- but this means that everything that can be known is actually known- at least probabilistically. But that would also mean that Evolution is not a true theory. 

Once again, Law and Economics cannot afford to proceed as though all these arguments do not exist.

They exist but are stupid.  

If it wishes to rebut them, on either the explanatory or the normative plane, it must first confront them.

I've just done so. Say 'Knightian Uncertainty exists' and Rawls and Arrow and Sen have to fuck off with their tails between their legs.  

V. PREFERENCE, DESIRE, EMOTION, INTENTION, ACTION Law and Economics typically recognizes a rather reduced number of explanatory entities behind human action.

Which is why the Law is a profession- rather than a species of bullshitting- and also why some Economists can make good money working for Bezos.  

Indeed, the capacious category "preference" seems to cover all of the psychological underpinnings of action, both cognitive and conative. At least there is a distinction made between preference and action: following Becker rather than Paul Samuelson, Law and Economics has typically treated preferences as items that have psychological reality and can be individuated to some extent independently of the actions they explain.

Because that is what actually happens in a Law Court. You say 'I intended to help my victim by sticking a knife in her. How was I supposed to know this would cause her to bleed to death? I would vastly prefer to have been alive and well and with a nice knife sticking out of her rib cage in a decorative and aesthetically pleasing manner.'  

By proceeding in this way, it has avoided some of the conceptual quagmire that characterizes the Samuelson revealed-preference approach.

There is no 'conceptual quagmire'. If we see a guy always buys x rather than y, ceteris paribus, we say he prefers x to y. This is perfectly sensible. Businesses will pay econometricians to work out the elasticity of demand for their product so as to make optimal pricing decisions. 

But what an impoverished repertory of explanatory entities!

Very true! Why is no mention made of djinns and ghosts and blessed Angels of the Lord?  

Western philosophers, ever since Plato and Aristotle, have agreed that the explanation of human action requires quite a few distinct concepts; these include the concepts of belief, desire, perception, appetite, and emotion-at the very least.

But Western philosophers got all these ideas from the Law courts. Kategoros was a legal term of art. It is a fact that the prosecutor says stuff like 'the defendant hated the victim because she refused to gratify his appetite for tasty treats. He felt rage whenever he saw her. He believed that hitting her repeatedly on the head would cause her to die. He perceived that she was all alone and defenseless. So he ran at her and beat her to death.' 

Some contemporary philosophers have felt that Aristotle was basically right, and that we do not need any categories other than those he introduced.

But all contemporary philosophers are as stupid as shit. 

Others have not been so satisfied. The Stoics introduced a further notion of impulse (horm), in the belief that the Aristotelian categories did not altogether capture the innate tendency of things to preserve their being.

Which was just as well. A lot of philosophers were soon to become slaves.  

In a related move, Spinoza introduced the idea of conatus, and gave it great prominence.

But the Christian notion of the Katechon derives from a Stoic doctrine of duty or appropriate action. Thus, if the world persists and the day of wrath has not come upon us, then some impetus associated with synderesis- some motivating factor in accordance with conscience and 'natural' morality- keeps things ticking over.  

Kant was partial to the notion of inclination (Neigung), feeling that it captured features of emotion and desire not fully included in the Aristotelian/mediaeval framework. Recently some philosophers have argued that the concept of intention is both irreducible to any of the others and an essential part of explaining action. And of course others have shown an interest in the concepts introduced by psychoanalysis. These concepts are introduced as basic to explanation and prediction, not simply as concepts that agents actually use.

But these concepts have allowed charlatanry to become an industry which was cool so long as quacks could prescribe happy pills.  

In addition to these rich beginnings, there have been centuries of very subtle work on each of the Aristotelian notions, asking about the relationship between emotion and belief, between both of these and desire, and so forth.

But this 'subtle work' was useless and not very well paid.  

This work makes the two claims both normative and predictive, saying both what emotions, desires, appetites, and beliefs will sway an ideally rational agent and also how the behavior of someone who is moved by an emotion, for example grief or compassion, is likely to differ from the behavior of a person who is moved by an appetite with no cognitive content--or by rational self-interest.

But everybody showed the same behavior towards stupid savants of this type- viz. they avoided them like the plague.  

Some especially important predictive consequences lie in the area of education. Philosophers claim that emotions respond to education in a way that is very different from the way in which intellectual calculations and non-cognitive appetites respond, and they predict accordingly the results of different educational strategies.

Then 'Me Too' happened and a lot of these philosophers got the sack coz they were engaging the emotions of their students with their dicks.  

Here, more than anywhere else, the foundations of Law and Economics look as yet underdeveloped and crude.

More particularly because their mavens aren't crudely grabbing the pussies of their students.  

If we do not even bother to sort out the many different ways in which people (and other animals") are moved, how can we hope to have an adequate descriptive, much less a normative, theory? 

But before we bother to do that must we not sort out the many different ways in which people and furniture are moved? One way this can happen is through the use of invisible flying unicorns. How can we hope to have an adequate descriptive, much less normative, theory till we have properly studied invisible flying unicorns?  

Economics has just barely reached the point at which it is able to distinguish between Becker and Samuelson (and this was not always the case);

Very true. Mrs. Samuelson was constantly sitting on Becker's face thinking he was her husband. Thankfully, Samuelson's brother-in-law, Ken Arrow, was able to get his wife's sister to distinguish between the two.  

it has not yet put itself onto the map of conceptually respectable theories of human action.

Very true. Sociology often remarks to Theology that Econ is an utter slut. To become respectable, Econ should stop wearing assless chaps and hanging out in truck stops.

This was not so, of course, in the early days of political economy: Adam Smith is one of the greatest thinkers about the relationship between emotion and action,

He was trying to get upper class Scottish kids to stop sticking dirks into each other so as to get ahead in Commerce or the learned professions. Don't be so fucking emotional. Let your actions be as sensible as that of the English or Dutch merchant.  

and he seems to have thought that this inquiry (both predictive and normative) was an important part of thinking about the economy and public policy, besides being of intrinsic interest.

He was paid to produce stuff useful for his country. The Germans took him up with great enthusiasm.  

VI. THE COMPLEXITY OF ETHICAL MOTIVATION If Law and Economics is ignorant of the theories of human action that have been painstakingly elaborated over the course of twenty-four hundred years,

because they are useless and stupid 

it is not terribly likely that it will see all the complexities of the ways in which people are moved by ethical considerations.

Nobody does. 

And in fact it does not.

Like everybody else. 

Homo economicus is a self-interested maximizer of his own satisfactions (or, occasionally, a classical utilitarian maximizer of social welfare).

Not under Knightian Uncertainty or where information acquisition and processing is costly. Tardean mimetics is the way to go. Law and Econ is about public signals which promote better Aumann correlated equilibria based on uncorrelated asymmetries and therefore bourgeois strategies. That's the reason Sen & Nussbaum, even if they were aware of it, would turn up their noses at it.

Altruism tends to be reduced to a type of egoism, in which people get reputational or psychic goods for themselves.

Whereas for Nussbaum, altruism is about feeling shitty about yourself while everybody else calls you a fucking Nazi and tries to kick your head in. 

For some time it has been influentially argued within economics

academic econ- i.e. stuff which has zero influence on anybody 

that this approach is inadequate, even for predictive purposes: we need to recognize sympathy and commitment as independent sources of motivation.

Very true. If your company is going bankrupt because your prices are too high and your product is shitty, then what you need to do is appeal to the sympathy and commitment of your customers. Tell them you have a micro-dick. If they don't buy your shitty stuff your wife will leave you. Your Mom will beat you coz you can no longer pay for her cocaine addiction.  

This is hardly a surprising claim, because it is one that has been argued throughout the history of Western philosophy-

the history of stupidity 

starting, again, with Aristotle, who argued that people who die for their friends or family cannot plausibly be said to do so for satisfaction, because they are risking or forfeiting, in the process, all prospect of future satisfaction.

But the present value of future satisfaction is what matters in inter-temporal choice. Furthermore, if you don't die for your friends and family, they will make your life so fucking miserable you will top yourself- unless they are quicker with a knife than you are.  

A theory that focuses on satisfaction will therefore make bad predictions about what they will do.

Not provided it discounts the correct stream of future benefits and compares it to the next best alternative.  

Recently these ideas have been receiving striking empirical confirmation: it has been powerfully argued that economic theories could not have predicted that anyone would risk life, family, comfort, and reputation to rescue Jews during the Holocaust.

Schindler got paid to do so. Others gained a huge reputational benefit. But, the truth is, back then, shitty things were happening to all sorts of people all the time. You might as well die for something worthwhile before you were bombed to Kingdom come by one side or another.  

And yet a significant number of people did.

Some of them believed in God- which was very naughty of them- and have gained Paradise- which was even more naughty. 

Again, this does not mean that practitioners of Law and Economics need agree with these results, nor does it entail that they cannot show that for their particular purposes in a given project these facts are predictively irrelevant. But then they have some work to do, both empirical and conceptual, to show how they will explain the behavior of such altruists without new conceptual resources.

Law & Econ is about internalizing externalities. It has no problem with mimetic effects or 'Muth rationality'. Thus it would predict that if a gangster regime is killing Jews, people will devise mechanisms to save some of those Jews while also destroying that regime- if the thing can be done at moderate risk. Moreover, 'Muth rationality' means rational people obeying the correct econ theory which points to the collectively rational, eusocial, solution. 

VII. MODELING THE FAMILY All of the conceptual complexities discussed above arise in a strange and fascinating way in the model of the family most influential in the Law and Economics movement, namely Gary Becker's.

Becker is sui generis. He wasn't directly concerned with the Law. I suppose his importance lies in combatting the stupidity of the Progressives in the Sixties. But African American economists and jurists did a better job.

Whereas for the most part altruism plays a small role in accounts of economic motivation (or is, as I said, reduced to something else), in Becker's account of the family it plays a stunningly central role. The head of the household is assumed to be a beneficent altruist who will adequately take cognizance of all the interests of all family members, in the process of maximizing the utility of the household as a whole.

A Jewish 'mensch' did display those qualities to a striking extent. The WASP elite were drunken adulterers farming off their kids to tony Prep Schools and Colleges. At any rate, that's the Hollywood stereotype. But it was the Jewish Mom, and nobody else, who pushed her kids to achieve. Now, of course, it is the East Asian 'Tiger Mom'.  

It is likely that altruism is to be understood as elsewhere in Becker's work, as a variety of selfinterest;" nonetheless, its centrality here is striking. What we have said so far gives us several reasons to be uneasy with this approach, as either an explanatory or a normative account of the way things are. It assumes a rather slender number of motives. (And Becker now says as much. In his 1992 Nobel Prize lecture he points out that "[m]any economists, including me, have excessively relied on altruism to tie together the interests of family members." He suggests that he should have included, as well, motives such as fear, guilt, "and other attitudes."

The longer you live, the more you understand that there are substantial social sanctions for misbehavior. As for what lies beyond the grave- don't get me started.  

The model treats the concerns of all as an aggregate and the household as a single organic whole, thus neglecting the salience of boundaries between persons.

Why not the boundary between a person's thumb and his arse? Don't stick your thumb up your arse. You don't know where it has been.  

We cannot even find out how A or B are doing, we can only find out how the whole household is doing-and yet we are assured that all is well, because no trade-offs that slight any member's interests will be made.

Very true. We see a happy family living in a nice house. We don't see that Daddy is having to sacrifice his leisure to hold down a job while Mummy has to put up with the kids harassing her to do their Hindi homework and cook masala dosas for dinner. 

The potential conflict between maximization of well-being and making some members do badly is not stated or faced.

Husbands have dicks. Dicks cause RAPE! Ban dicks immediately.  

What this means is that the model offers no predictions at all, much less correct ones, about a number of very real questions, such as: When there is a food shortage, which children will be fed?

The boys. The girls will be sold to homosexual couples in California.  

How is domestic violence likely to be correlated with household income?

Wife beaters get bonuses from their employers. Also, the Inland Revenue gives them a refund if the wife has to be hospitalized. 

What influence does education have on the nutrition of female children?

Girls doing PhDs in Moral Philosophy are forced to eat dog turds coz that's what Amartya Sen eats. We now see that Nussbaum is right about the superior predictive power of the Capabilities approach. Becker thinks families are nice. The truth is we can predict with considerable accuracy that families are places where females are beaten, starved and sold into slavery.  

 Should we expect the health status of widows in India to be higher or lower than that of widowers?

They should be burned to death on their husband's funeral pyres.  

The fact is that the household is far from being a harmonious unit, even when, as may be the case in families, its members love each other.

Ban marriage. Forcibly separate mothers from their children. The Capabilities approach predicts that Mums will force their daughter's to eat dog shit so that they can get a Nobel Prize like Amartya Sen.  

(Oddly, this also is not how economics assumes people usually are, so we have a complex problem of consistency on our hands as well.)

Very true. Economics assumes people are usually eating their own legs so as to maximize their utility- and so as to qualify for a disabled parking space. 

Real families contain much altruism, but they also contain conflicts over resources, and different bargaining positions that situate agents differently with respect to those conflicts.

Indeed! In Scotland, between 2016 and 2019 there was a 'named person' scheme such that every kid had a guardian to prevent its Mummy beating it and forcing it to eat dog poo. There was also a UN 'Special Rapporteur' on Food security who announced that Scottish kids were at risk of malnutrition because Mums had lack of access to arable land to grow vegetables for their wee bairns. 

The SNP may have thought it was scoring off the Tories by introducing this sort of shite. The effect, however, has been to paint Scottish men as drunken thugs while Scottish women are depicted as slatterns who feed their kids on deep fried Mars bars in batter.  

We must understand these different bargaining positions before we can make any prediction at all about a wide range of urgent questions of well-being and agency.

Very true. We must understand WHY men are evil bastards. Spoiler alert- it's coz they have dicks. Dicks cause RAPE.  We must also understand WHY Mums are evil bastards. The answer is its coz they let jizz get into their vaginas. Jizz is very evil. Contact with jizz causes Mums to hate their daughters. They beat them and make them eat only dog poo. Mummy, you horrible bitch!, you fucked up my life just coz I was born with a vagina instead of a dick!'  

Such an understanding is also crucial to an adequate normative account of family law,

which is very evil coz families are very evil. 

because law is one of the factors that most decisively structures the bargaining positions of such agents- saying who can marry,

it isn't goats- which is deeply unfair to goats. 

what divorce involves,

not being married anymore 

what rights wives have against domestic violence and marital rape,

None. In fact, the Law demands that beat themselves up and stick broken bottles up their own fannies if hubby is too lazy to do so. 

what rights children do and don't have,

If they are female they are forced to eat only dog shit 

and so forth. In short, the defects in the standard economic model of the family have enormous explanatory and predictive significance, as well as great normative significance when public policy attempts to address these problems.

Very true. Whenever public policy tries to separate wives from hubbies and babies from mummies, the lawyers and the economists complain that fundamental human rights are being violated and that the expense of such measures will quickly sink the economy. 

As Richard Posner valuably recognized in his remarks, this has been a major area of feminist criticism against Law and Economics, and a valid area of criticism."

Because- despite decades of feminist criticism, most men are still not cutting off their dicks though dicks cause RAPE! 

Moreover, it is not only feminists who have pressed these claims; it is, by now, a large part of the economics profession, where bargaining models have more or less displaced the older organic models as the standard ways of modeling family interactions.

This is nonsense. The economics profession is about making money not talking bollocks.  

As I say, Becker himself has recognized that his model is seriously flawed, although he has not, to my knowledge, endorsed a bargaining model as opposed to an organic model.

Bargaining models need credible threat points. Under Becker's assumptions, a 'Rotten Kid theorem' holds good because the bad actor has no threat point. This does not mean families can't break up, it just means that externalities are internalized on the basis of uncorrelated asymmetries- i.e. a bourgeois bonus paterfamilias has the final say. Thus the family is just as 'organic' as the enterprise or the nation though families, like companies or countries may fall apart.  

These shortcomings are closely bound up with other shortcomings in Law and Economics' conception of its foundations.

Either Law & Econ is better than its rivals or an alternative is preferred. Shortcomings don't matter. I may want my pizza delivered by a naked super-model but have to settle for whoever the cheapest Pizza joint in my neighborhood chooses to send.  

Neglect personal boundaries, the distinction between agency and well-being, and the diverse varieties of human motivation, and ' Becker's recent remarks do not indicate that he intends to disaggregate the family into its separate components;

in which case there is no family.  

apparently he still prefers an organic model in which the motives of the head of the household stand in for the whole, though these motives are now made more complex. 

If both husband and wife have equal threat points then two things follow

1) the family won't be the sole fiduciary entity for its members

2) its activities would be analyzable only in terms of incomplete contract theory. This means there is increased indeterminacy.

In practice, this means you get better predictions by separating out this type of family, or at least keeping track of the relative size of this sector, so as to get rid of Simpsons paradox type results.

Law and Economics should address this important area of human life, and economists interested in law are doing so already.

Divorce attorneys and the guys who draft prenups have been doing well off this sort of thing for decades. 

Coase wanted to reduce the money we have to spend on lawyers or bureaucrats. That's why Law & Econ is on the side of the angels. Nussbaum & Co are the slippery slope towards Government employees breaking up your family while the tax burden of paying their salaries causes you to emigrate. 

If practitioners of Law and Economics ignore this work, it will continue to go forward without them.

It will go forward into outright paranoia.  

 

CONCLUSION Aristotle thought that there was conceptual progress in political thought.

No he didn't. He lived a very long time ago. He didn't know shit about political thought. The fact is Alexander rejected his stupid, racist, shite and went on to do very well for himself.  

For when we sit down and sort through all the good and bad arguments our major predecessors have made, we will learn a lot: "Some of these things have been said by many people over a long period of time, others by a few distinguished people; it is reasonable to suppose that none of them has missed the target totally, but each has gotten something or even a lot of things right."

But if they were useless tossers getting paid a little money to act as glorified child minders we would do well to ignore them as thoroughly as Alexander ignored Aristotle's stupid shite.  

Furthermore, we will also be enabled to avoid their errors.

Not if we are as stupid as shit- a sine qua non for teaching this type of shite.  

Finally, perhaps, we will ourselves make a little progress beyond them.

No. Back then, even smart people went in for philosophy because there was precious little else to study. That has long ceased to be the case. 

Aristotle also noticed, however, that the passion for science and simplicity frequently lead highly intelligent people into conceptual confusion and an impoverished view of the human world.

Which doesn't matter if they invent cool stuff or make discoveries in STEM subjects.  

So he did not think that progress was inevitable, and one of his great arguments for reading was that it could remind us of conceptual complexities we might otherwise efface, in our zeal to make life more tractable than it is.

So- don't try to make life more tractable. Read stupid shite and wallow in ignorance. 

Science does not have to be impoverished;

It isn't. It has made us much much richer than Greek dudes who lived long ago. 

in fact, it must not be, if it is to deliver perspicuous descriptions, adequate predictions, and, perhaps, helpful normative recommendations.

All of which my GP actually does for me. I need to eat less and take more exercise. Then I'll be happier and less prone to Socioproctological outbursts of spleen 

But Law and Economics is currently still somewhat impoverished.

Nussbaum was writing this shite at a time when a young lawyer, named Barak Obama, was arguing cases in front of Richard Posner. Obama may have made mistakes but he did try to make the world a better place on the basis of evidence based argumentation and incentive compatible mechanism design. Sen, on the other hand, was discovered to be, by the Indians, an utter waste of time.  

It is impoverished because it did not proceed in the way that Aristotle recommends,

but Aristotle's own people turned to Christ. There was nothing for them at the end of Aristotle's road.  

sitting down with the arguments of eminent predecessors to see what can be learned from their years of labor. 

What can be learned is that they failed. Religion we will always have with us. Families will endure. Psilosophy is the preserve of the precocious tenure-seeker who soon degenerates into outright paranoia.