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jwl
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I don’t want this to devolve into mere semantics, but Posner misunderstands the ‘moral’ issue. He argues that because ‘everything is based on luck’ , including wealth, no one is ‘entitled’ to it in some moral way. But this mischaracterizes the idea of morality . The world is certainly random at its deepest level , so absolutely everything really is based on luck. Posner says that what is acquired by luck cannot be retained based on a moral right. But if morality has any meaning whatsoever, this is clearly not true. Most people would easily agree that if there is anything that is quintessentially immoral it is murder. But being born and being alive has to be the purest example of complete dumb luck. Your life was not the result of any kind of effort on your part whatsoever. Posner would argue that therefore taking it from you is merely some utilitarian decision. Most people would instinctively reject that. Certain actions are felt to be so intrinsically ‘wrong’ that they are largely removed from the realm of utilitarianism and placed in the realm we call morality. Now Posner is a great jurist and will rightly respond that in fact even the decision to kill someone is not really a moral decision but is purely utilitarian. The most obvious case is the death penalty or imprisonment. Life and liberty may be taken by the state whenever it feels like it so long as it follows due process. So is there really any role left for morality? I would argue, yes. The very fact that we demand such extraordinary processes for depriving persons of certain things acquired by dumb luck-like life ,liberty and property- proves that these things are in a different category. In fact, in certain cases like the death penalty for children, the moral repugnance is so strong that we do not let the utilitarian argument be considered at all, even though a purely utilitarian view might strongly suggest the opposite result. (life imprisonment is very expensive). I do recognize we could change this via a constitutional amendment, but requiring that extraordinary hurdle proves just how strong the countervailing ‘moral’ instinct is. This argument does suggest that since even life can be taken by the state, there is no such thing as a moral absolute. If that is what Posner means by morality, he is technically correct , but completely misses the bigger point. It may be that there is no absolute moral right to life or property, but that is not what we commonly mean by morality. I think most people would agree that when we associate a moral value with an action we are simply putting it into a different category that requires higher levels of proof or starts with different presumptions. Because it is ‘immoral’ to kill , we require high hurdles for the state to do so. The ‘presumption’ is not to kill. Because we recognize an intrinsic moral right to the fruits of one’s labor, the presumption should be that we cannot take property without really compelling reasons. The constitution recognizes this in the takings clause. Perhaps this is all merely a short hand way to get at the ‘utility’ arguments Posner is making with respect to incentives and disincentives, but I don’t think so. Perceptions of fairness and unfairness, independently affect incentives and disincentives. An incentive that is also perceived as fair will elicit a response that is very different than a quantitatively equivalent incentive that is perceived as unfair. A tax that is perceived as fair will be collected more easily than one which is perceived as unfair. Even how a tax is described will affect this. I might willingly pay one tax if imposed without any moral characterization, and ferociously avoid the exact same tax if it was said to be imposed on me because I had not been paying my fair share or was otherwise a bad citizen. Even worse, justifying a taking based on the idea that ‘you didn't earn it anyway’ or it was all luck, will elicit a response similar to the idea that I can kill you if I want because your birth was just dumb luck. Posner may be correct at some metaphysical level, but somehow I don’t think we would like to live in a world like that, and we don’t.
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Oct 17, 2012