Posner and Epstein Debate Patent System

Rawls, Nozick and Gore Vidal on envy

Nozick argues that one of the unchallenged assumptions made by egalitarians is that the have-nots resent the haves only to the extent that the haves possess power and wealth that were unearned. The envious man, if he cannot also possess a talent and success that someone else has prefers that the other not have it either. The envious man prefers neither have it if he does not have it.

An old Russian joke tells of a poor peasant whose better-off neighbour has just bought a cow. In his anguish, the peasant cries out to God for relief from his distress. When God replies and asks him what he wants him to do, the peasant replies “shoot the cow.”

Nozick said that what really rankles the have-nots is the haves who clearly earned their status and possessions:

It may injure one’s self-esteem and make one feel less worthy as a person to know of someone else who has accomplished more or risen higher.

Nozick said that proximity is a bigger factor in the creation of envy than just desert. Envy is local rather than global in its scope with your neighbour as the target of your envy is rather than far-off figures you don’t really know who may be far more wealthy and successful than the people you actually envy in your day to day lives:

Workers in a factory recently started by someone who was previously a worker will be constantly confronted with the following thoughts: ‘Why not me? Why am I only here?”

Whereas one can manage to ignore much more easily the knowledge that someone else has done more if one is not confronted daily with him.

The point, though sharper then, does not depend upon another’s deserving his superior ranking along some dimension. That there is someone else who is a good dancer will affect your estimate of how good you yourself are at dancing, even if you think that a large part of grace in dancing depends upon unearned natural assets.

These considerations make one somewhat sceptical of the chances of equalizing self-esteem and reducing envy by equalizing positions along that particular dimension upon which self-esteem is importantly based.

Knowing that another’s superior ranking along some dimension depends in part upon unearned natural assets does not soften this loss of self-esteem. These considerations made Nozick sceptical of the chances of equalizing self-esteem and reducing envy by equalizing positions along that particular dimension upon which self-esteem is importantly based.

Nozick said that a contraction of options through regulation, redistribution  and other government mandates will only increase envy because it will inevitably result in fewer socially acceptable ways of demonstrating personal worth. With fewer options (i.e. less freedom), the perception of inequality and emotion of envy are likely to be more, not less pronounced. Nozick has point here: primitive societies were racked with envy and  any good fortune good fortune has tainted by genuine luck from  escaping harvest failures and disease.

Nozick said we should expand a person’s options through capitalism thereby making it more likely that he will find something that he does well and on which he can base his self-esteem. Nozick said we should expand a person’s options thereby making it more likely that he will find something that he does well and on which he can base his self-esteem.

Adam Smith wrote that matters of justice can only be resolved if people distance themselves from the grubby particulars their own positions in particular disputes. This view evolved into Rawls arguing that the justice of social institutions should be tested from behind a veil of ignorance where people are ignorant of their particular role in society and individual talents.

Rawls had no place for envy behind his veil of ignorance:

  • Principles of justice should not be affected by individual inclinations, which are also mere accidents; and
  • The parties behind the veil of ignorance should be concerned with their absolute level of primary social goods, not with their standing relative to others.

Rawls was nonetheless alive to the possibility is that:

The inequalities sanctioned by the difference principle may be so great as to arouse envy to a socially dangerous extent.

Rawls’ project was to outline a realistic utopia — a society that could really exist given actual human nature. Political philosophy must describe workable political arrangements that can gain support of real people as they are.

On envy, Rawls’ main fall-back was the background institutions (including a competitive economy) making it likely that excessive inequalities will not be the rule. He recognised that the income of the poorest, along with the whole of society, benefit from competition in a market economy. Richard Epstein explained how the market is important to distributive justice and social peace despite envy:

Strong competitive markets do not favour one individual over another. They work well to harness individual self-interest to generate massive amounts of wealth, widely distributed in society, through voluntary transactions. Behind the veil, rational people should the support of strong and transparent markets as their first order of business.

Richard Epstein lecture on Piketty 19 June 2014

Video

Richard Epstein on the true nature of labour markets

via Back to Basics for New Zealand Labour Markets

The Case for Boring Courts and Very Bored Lawyers

The world would be a better place if law was the most boring occupation about.

Lawyers and the court room make for great TV drama, but if the outcome of most litigation was fairly predictable, we would all be better-off.

Ordinary people would not fear law suits or suing to uphold their rights if the law was simple. With the law clear-cut, every-one knows where they stand. People settle out of court. They do not misbehave in the first place because they know they will be liable and will have to pay.

Richard Epstein contents that

…greater judicial sophistication has not brought forth higher quality judgments, but rather the reverse

…An easy mistake for a modern judge to make is to assume that the tools he or she possesses are capable of being put to good ends, and that it is possible to tell which of the parties in a given case are the ‘good guys’ and which are the ‘bad guys’.

…Most of the cases that a judge sees are aberrations.

Yet it is a great mistake for a judge to assume that the rules a court creates only apply to the aberrational cases.

The legal rules will also govern the mundane cases that remain within the system, to be resolved without litigation.

The judge needs to fear that laying down an ideal rule for this one case in a thousand may unglue the system that works well for the other 999 cases.

We all bargain in the shadow of the courts and the law. Bargaining and the enforcement of contracts and property rights and the resolution of disputes would be a lot cheaper if we knew what would happen if we did not settle and went to court.

As an example of the simple rules he champions, Epstein proposed that the default divorce settlements be 50:50.

Epstein also supports employment at will as the default rule because "you’re fired, I quit" could not be simpler to understand and administer.

Everyone knows where they stand and a free to make more detailed marital or employment agreements if they wish. Many do: contractors and short-term routinely earn a premium over permanent employees with more job security.

The law attracts more than its share of reformers wanting to use the courts and judge-made law for political purposes.

If you want to reform the world, do what we ordinary people have to do: change your vote, write a mail to an MP, protest, donate to or even join a political party, or run for parliament.

Some lawyers think themselves above how ordinary people must resolve their differences in democracies: by trying to persuade each other and elections.

The great strength of democracy is a small group of concerned and thoughtful citizens can band together and change things by running for office and winning elections.

That is how new Australian parties such as the Labor Party, the Country Party, Democratic Labor Party, the Australian Democrats and the Greens changed Australia. One Nation even had its 15 minutes of fame with its 11 MPs. Australian state upper houses even have Christian, family and shooters parties and many independents. A middle-of-the-road Senate independent in South Australia nearly topped the poll.

All of these parties started in a living room full of angry, motivated people.

I agree with Antonin Scalia when he said that the purpose of the law is to slow the impassioned majority down:

Judges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will.

Their most significant roles, in our system, are to protect the individual criminal defendant against the occasional excesses of that popular will, and to preserve the checks and balances within our constitutional system that are precisely designed to inhibit swift and complete accomplishment of that popular will.

Those are tasks which, properly performed, may earn widespread respect and admiration in the long run, but — almost by definition — never in the particular case.

Democracy is government by checks and balance by putting the parties and branches of government in continual tension with each other – it is not trusting the specific people who are currently in power.

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