Today's Quote of the Day...

is from page 66 of the Liberty Fund’s 1999 edition of James Buchanan’s Cost and Choice:

In order to estimate the size of the corrective tax [to correct an externality], however, some objective measurement must be placed on these external costs. But the analyst has no benchmark from which plausible estimates can be made. Since the persons who bear these “costs” - whose who are externally affected - do not participate in the choice that generates the “costs,” there is simply no means of determining, even indirectly, the value that they place on the utility loss that might be avoided. In the classic example, how much would the housewife whose laundry is fouled give to have the smoke removed from the air? Until and unless she is actually confronted with this choice, any estimate must remain almost wholly arbitrary.

JMM: The fact that the cost to the external party is almost wholly arbitrary unless they are actually confronted with the choice does not imply that the estimation of the cost is irrelevant. What it does imply, however, is that welfare economics is not as precise and accurate as the blackboard models would have you believe. We should be wary of any scheme that relies on some “optimal” tax, tariff, or price in order to operate. The result of that model is wholly dependent on the analyst’s assumptions about what people would do if actually faced with a given choice.

Why It's Important to Know Reality, Not Just Models

In economic theory, one can calculate who bears the burden of a tax by examining the elasticity of demand and supply for the product the tax is placed on. “Elasticity” is a concept that refers to how responsive consumers and producers are to changes in price. Demand/Supply is relatively inelastic when the consumer/producer changes the quantity demanded/supplied relatively little given a change in price. Demand/Supply is relatively elastic when the consumer/producer changes the quantity demanded/supplied greatly in response to a price change. When a good is relatively inelastic, the producer can pass a large portion of a tax onto the consumer since the consumer is relatively insensitive to price changes. When a good is relatively elastic, the producer must pay some of the tax himself since the consumer is relatively sensitive to price changes.

Price elasticity is applied to the concept of international trade as a way of potentially increasing net national welfare from a tariff. If a home government passes a sufficiently small tariff and there is some elasticity to the good, then some of the tax can be passed on to foreign producers in the form of lower prices received. The net national welfare rises as those losses to the foreign manufacturers are not counted, but there is an increase in tax revenue.

That is what the model says. And it is a variation of this model that commentator “Doctor” Joe B* applies at Mark Perry’s blog Carpe Diem:

A tariff is paid by the seller and the buyer, and how much each pays depends on elasticity of demand.

So far the evidence is that China is eating the tariffs, through price cuts and cheaper yuan.

But Mr. B errs in his assumptions. The assumption of the model is there are no middlemen between the producer and the consumer. If there are, the tax burden would be spread out among all of them depending on their various elasticities.

In real life, few people buy directly from Chinese producers. There are all kinds of middlemen involved: shippers, importers, wholesalers, retailers. When we take into all the middlemen, we see that none of the tax is actually being passed onto Chinese producers. It’s being absorbed entirely by Americans.

Knowing the reality of what your studying will enhance the model. Ignoring the reality leads to faulty conclusions.

*I but “Doctor” in quotation marks because I know for a fact this man holds no PhD.

Today's Quote of the Day...

…is from page 20 of Douglas Rasmussen and Douglas Den Uyl’s 2005 book Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (note that when the author’s say “liberal,” they mean in the classical sense):

Liberals are tempted by the argument that the effects of liberal politics speak for themselves, but this gives the entire moral enterprise over to nonliberals. The effect of this is what we find today: widespread material success due to liberal policies coupled with equally widespread cynicism about or hostility to the moral dimensions of those same policies.

JMM: Yup. Truer now than when those words were written, liberalism seems to lack a moral compass at times. I began reading this book at the insistence of Aeon Skoble when I complained to him of this problem. Many classical liberals focus too much just on economics or the other social sciences, or are interested in classical liberalism as a way of “owning the Left/Right.” But, without a moral foundation, we have no leg to stand on and we cede the argument to our critics.

Today's Quote of the Day...

…is from G. F. Thirlby’s 1946 paper in Economica, quoted on page 30 in the 1999 Liberty Fund edition of Jame’s Buchanan’s Cost and Choice (original emphasis:

The cost is not the things-e.g. money-which will flow along certain channels as a result of the decision; it is the loss, prospective or realized, to the person making the decision, of the opportunity of using those things in the alternative courses of action. A fortiori, this cost cannot be discovered by another person who eventually watches and records the flow of those things along those channels. Cost is not something which is objectively discoverable in this manner; it is something which existed in the mind of the decision-maker before the flow began, and something which may quite likely have been but vaguely apprehended…

Cost is ephemeral. The cost involved in a particular decision loses its significance with the making of a decision because the decision displaces the alternative course of action.

JMM: A concept oft-misunderstood in the study of economics is cost and its relation to choice. Costs, probably understood, are subjective. They are what alternatives face an individual when making a choice. They are not the monetary outlay, but rather the foregone opportunities at that point in time.

Of Baseball and Justice

Yesterday, Albert Pujols, outfielder for the Los Angeles Angels of Anaheim, hit a long home run in Detroit to notch his 2,000th RBI. 2,000 career RBIs is an amazing feat and the ball that Pujols hit would likely have been heading to Cooperstown in normal situations. But the situation is not normal. The fan who caught the ball, Ely Hydes, refused to give the ball back to Pujols. On Facebook, Ball State economist Steve Horwitz (friend of the blog) wrote of Ely:

And today's Asshole of the Day award goes to...

It's his right, but that don't make it right.

David Henderson (also friend of the blog) responded:

You really think he's an asshole for not transferring wealth from himself, who's probably not wealthy, to a very wealthy guy? Why?

Henderson expanded his point at EconLog.

Henderson and Horwitz are two dear people to me and I owe massive professional and personal debts to both. Whenever I find myself disagreeing with one or the other, I do so hesitantly. But I think, in this case, Henderson misses the point of Horwitz’s comment. And Adam Smith can help us see why.

In The Theory of Moral Sentiments, Adam Smith discusses the virtue of justice. Smith finds there are really three versions of justice: 1) Commutative Justice (simply put, not messing with other people’s stuff), 2) Distributive Justice (that is, properly deploying one’s resources), and 3) an unnamed justice which I will call by the term coined by my teacher Daniel Klein Estimative Justice. Estimative Justice is the proper estimating of an object (all this can be found on pages 269-270 of the Liberty Fund edition). The three justices are interrelated, but are different. And we can use this framework to consider the difference in opinion between Horwitz and Henderson.

Both Horwitz and Henderson acknowledge the property right of Mr. Hydes. The ball was hit out of the field of play. Mr. Hydes caught the ball. By normal property rights convention, Hydes owned the ball, not Pujols or Major League Baseball. Indeed, we can see this property right in action given that MLB had to ask that Mr. Hydes give the ball back. When Mr. Hydes refused to give the ball to MLB officials, he was well within his rights (as acknowledged by all parties involved and the commentators). In the terminology above, Hydes was being commutatively just. He was not messing with other people’s stuff.

But commutative justice is not the end of the story. We now ask whether or not his behavior was distributatively just. The ball was his property. What would constitute a “becoming use of his own [property]?” It would seem, again appealing to convention, that the becoming use of Mr. Hydes’ own would be to give the ball back to Pujols. It is common practice among sports fans to return historic or important-event balls to the players (such as a 1st career home run). Mr. Hydes’ behavior would seem to violate that norm. Thus, we can say his behavior, while commutatively just is distributively unjust. This is what Horwtiz means when he says “It’s his right [to not give up the ball], but that doesn’t make it right.” Mr. Hydes’ behavior, while well within the bounds of rules, would not be pleasing to an impartial spectator such as Horwitz.

But now we have Henderson who comes along, and he is also an impartial spectator, and see’s Horwtiz’s estimation of the action. Henderson is estimating Horwtiz’s estimation and finds it lacking. In our terminology, Henderson is saying Horwtiz is being estimatively unjust. Horwitz is failing to properly estimate the object/action in question. However, I, also an impartial spectator, judged Horwitz estimation to be just.

Why is there this disagreement? Neither Horwitz nor Henderson are dummies or unenlightened buffoons. They are both genuine people. I imagine they would agree largely with what I have written here, both as a description of events and they layout of Adam Smith’s discussion on justice. Why do they disagree?

They disagree because, unlike the rules of commutative justice, which are precise and accurate, the rules of distributive justice are loose, vague, and indeterminate. We cannot readily appeal to some guidebook of human behavior to determine whether something is distributively just or not. It will depend on a lot of things. Does the fact that Mr. Hydes is a law student with a child on the way matter for our DJ estimation? Does the fact that Mr. Pujols is wealthy, and thus could buy the ball from Hydes, matter? To what extent do they? If Horwtiz is more of a baseball fan than Henderson, would he have a different insight? These are not precise and the difference in opinion comes from Horwitz’s and Henderson’s different interpretations of these imprecise rules.

In closing, I do want to note that this process of estimating is a recursive process. Horwitz can estimate his earlier estimation in light of new knowledge and interpretation. Or Henderson can estimate his earlier estimation. Or another party can come in, etc etc. It is through this recursive nature that we better come to understand what truly are pleasing arrangements.

Have Coase - Will Travel

In 1960, Ronald Coase published what would become one of the most cited articles in economics and contribute to his receipt of a Nobel Prize. Coase’s point was both simple and revolutionary.

These are the opening lines to my latest article at the Online Library of Economics and Liberty, Have Coase - Will Travel, coauthored with John Schuler (also a GMU economics PhD candidate).

Another slice:

Coase’s paper “The Problem of Social Cost” appeared in the October 1960 volume of the Journal of Law and Economics. This brings us, for reasons that we will explain, to the television show Have Gun – Will Travel, which aired from 1957 to 1963. A particular 1958 episode, called “Bitter Wine,” is likely the most Coasean episode of television ever made. Every element of the “Problem of Social Cost” makes an appearance in the episode: the reciprocal nature of externalities, how the initial allocation of property rights matters in a world with transaction costs, and how the legal system can overcome transaction costs to allow for an efficient allocation of rights.

Upset about Donations to Notre Dame? Then Praise the Commercial Society

Last week, after Paris’ Notre Dame Cathedral burned, there was an outpouring of emotion and funds to restore the centuries-old building.  However, not everyone has been thrilled by this outcome:

“So when wealthy Frenchmen quickly pledged massive donations, some associated with the movement balked. “If they can give tens of millions to rebuild Notre Dame, then they should stop telling us there is no money to help with the social emergency,” The Washington Post quotes Philippe Martinez, head of the CGT trade union.”

This is a reason for us to celebrate the rise of the commercial society in our world.  As Adam Smith discusses in The Theory of Moral Sentiments, we tend to sympathize much more with those people and things closest to ourselves.  We sympathize with our family very much, our friends to a lesser degree, and beyond that our acquaintances, neighborhoods, towns, country, etc.  A small misfortune to our brother or child is certainly going to trouble us much more than a larger misfortune to someone far removed from us.

Of course, it would be best if we all could engage in that universal benevolence and knew, without question, where our resources could be best spent to best help people.  But that would require far more knowledge, information, and compassion we have or can possibly have.  That sort of universal benevolence, Smith argues, is best left to some deity above us.  Rather, we have it within ourselves to devote to those most local to us are benevolence and beyond that mere justice and virtuous behavior can carry the day.

Notre Dame is a symbol for many people.  It is a symbol of Christianity, of Western Civilization, of French Pride, of many other things.  As such, many people feel close to Notre Dame and thus their benevolence is directed toward that cause.

But it is not by benevolence alone that the world becomes a better place.  Indeed, little else is required but honesty, justice, and prudence.  And that is where the commercial society comes into play.  The commercial society tends to promote these mundane virtues (to borrow a phrase from J.R. Clark and Dwight Lee).  The pursuit of honest dollar can foster growth around us by requiring us to help one another to help ourselves.  We must appeal to the self-interest of the brewer, baker, or butcher for our dinner; we must offer them money (or something else they want).  In turn, they help us by providing us our dinner.  And the same is true across the world.  In my lifetime, billions of people have risen out of object poverty.  It is not because the worlds has suddenly gotten much more charitable or because those charities have gotten better at helping people.  It is because companies, wanting more profit, expanded operations into these poor areas and gave them jobs, and food, and clothing, etc.  It is because the human mind is infinitely creative, and people have found new and better ways to help and serve one another. 

If we were to rely solely on the benevolence of the wealthy (and this includes forced benevolence, such as re-distributive taxation) to solve the world’s problems, we will be unsuccessful.  Compassion is a scarce resource, after all.

Today's Quote of the Day...

…is from this EconLog post by David Henderson (emphasis added):

If you think that the government should provide truly public goods, that is, goods that are non-excludable and non-rival in consumption, then you should think that government should provide the public good of preventing an asteroid from hinting earth. Here’s the problem: The U.S. government, which has access to more resources than any other government on earth, is almost certainly underinvesting in the technology to deflect or destroy asteroids. Just as private actors don’t have much of an incentive to produce truly public goods, neither do government actors.

JMM: In standard economic treatment of market failures, governments are treated as something of a deus ex machina. They can just come in costlessly and effortlessly to solve any problem by applying just the right remedy. On paper, it’s a simple enough story. But what incentives do governments face to provide such solutions (assuming away knowledge problems)? It’s unlikely they face incentives from voters. Market failures tend to be characterized by free-rider problems, and free-riders do not suddenly want to start paying, even if they benefit. Furthermore, the problems are often dispersed, making them hard to observe. Perhaps they are motivated by “doing the right thing,” and that’s all fine and dandy, but are we ready to assume all judges, bureaucrats, and politicians are purely motivated by the Greater Good?

On top of the difficulties of identifying a true market failure, we need to keep in mind the incentives people face.

Are Public Goods Necessarily Undersupplied?

In economics, public goods are goods which are non-rival (a person’s use of the good does not reduce the ability of another person to use the same good, eg listening to the radio) and non-excludable (people who do not pay cannot easily be prevented from using the good, eg when a burglar is arrested, everyone in a neighborhood benefits, not just those who paid for the security service). Because of this definition of public goods, we tend to teach undergrads that public goods will therefore necessarily be undersupplied, that in a free market the amount of the good produced is less than the socially optimal level of production. As such, government may be able to step in and, though use of taxation, correct this underproduction (see, for example, Page 369 of Modern Principles of Economics by Tyler Cowen and Alex Tabarrok).

But is it necessarily the case that public goods are necessarily undersupplied in a free market? It does not seem clear to me that it is.

The first question we need to ask is “as compared to what?” What is the free market outcome undersupplied compared to? It is compared to what would be the socially optimal level where everyone who benefits pays the cost (the intuition here is this: if an individual can earn more producing something, they will produce more of it, all else held equal. Supply curves slope upward).

Now we need to ask: is this an attainable alternative? In a free market setting, it does not appear to be so. After all, as we argued above, given the characteristics of a public good, they will tend to be undersupplied. Getting people to pay for their use is difficult. A more technical way of saying this is the transaction costs are high. The marginal benefit of receiving the payments exceeds the marginal cost of obtaining those payments. In a zero-transaction cost world, the socially optimal level would be easily obtained. There is some bargain that could be reached where those who enjoy the benefit without paying the cost (free rider problem) could be incentivized to pay the cost and production would increase. This is just an application of the Coase Theorem.

If, however, as posited by the public goods problem, the transaction costs of solving the free rider problem are too high, then the socially optimal level is not necessarily an attainable alternative. It’s a fantasy alternative. Thus, it is an irrelevant comparison. It’d like saying “I’d be better off with a fairy godmother who grants wishes than needing to work for my well-being.” Sure, but given faeries don’t exist, that’s a meaningless choice. The choice is between working and living well or not working and living poorly.

If the socially optimal outcome of the model is not a real alternative, then the situation is already at an optimal outcome. There is no undersupply. Thus, public goods are not necessarily undersupplied.

A note of caution: none of what I just wrote should be taken to mean that the free market outcome is necessarily the best outcome. There may be better alternatives. Government (or some other non-market force) may be able to achieve an alternative arrangement that is superior to the free market outcome. For example, better defining property rights can lead to less undersupply of public goods. But in movement from one alternative to the other, we need to consider the transaction costs. Do the benefits of moving from the market alternative to the non-market alternative outweigh the costs?

With this article, I reiterate a point made by Ronald Coase, Carl Dahlman, Harold Demsetz, and many others before me: transaction costs matter. We need to compare attainable alternatives and consider how institutions actually work as opposed to an idealized version of them. Comparing a market outcome to an idealized, but unobtainable, alternative does not provide any guidance to our thought.

The Economist as an Impartial Spectator

This upcoming Tuesday I will be giving a talk at the GMU Econ Society entitled “The Economist as an Impartial Spectator: Re-examining Welfare Economics.” The talk will be from 5:30-7:30 (as part of their general meeting) in Hub Meeting Room 2. If you are in the area, come by and say hi!

Jon Murphy
Today's Quote of the Day...

…is from this 1997 Reason Magazine interview with Ronald Coase:

Reason: Can you give us an example of what you consider to be a good regulation and then an example of what you consider to be a not-so-good regulation?

Coase: This is a very interesting question because one can't give an answer to it. When I was editor of The Journal of Law and Economics, we published a whole series of studies of regulation and its effects. Almost all the studies--perhaps all the studies--suggested that the results of regulation had been bad, that the prices were higher, that the product was worse adapted to the needs of consumers, than it otherwise would have been. I was not willing to accept the view that all regulation was bound to produce these results. Therefore, what was my explanation for the results we had? I argued that the most probable explanation was that the government now operates on such a massive scale that it had reached the stage of what economists call negative marginal returns. Anything additional it does, it messes up. But that doesn't mean that if we reduce the size of government considerably, we wouldn't find then that there were some activities it did well. Until we reduce the size of government, we won't know what they are.

JMM: Ronald Coase’s careful study of the data through the lens of theory is important for us to observe. Coase was unwilling to move to the conclusion that, just because the majority (if not all) the government regulation led to undesirable outcomes, it must therefore be true that all government regulation is necessarily harmful. He points out another answer that is contained within the very models used in the analyses: negative marginal returns.

Data cannot “speak for themselves.” Data without theory have no context and thus mislead. The man who looks only at data and ignores theory is not practicing science, but rather scientism.

From Spontaneous Order to Codification

A while ago, I did a blog post on the “Hayek Memorial Pathway,” one of a series of pathways that have developed on campus though people’s actions. Well, they’re doing a bunch of construction on campus and part of it includes paving the Hayek Memorial Pathway.

Some years from now, people will forget that the pathway was one unpaved and unplanned, that it was only by the constant movement of thousands of students that the path at all formed in the first place. All the “government” (i.e., George Mason University) did was codify what people already did.

Socialists and central planners often point out various institutions and state proudly “look at the good government is doing!” What they fail to see, however, is the spontaneous orders that predated those codifications. For example, they fail to see the development of the law that legislation merely codified. Or the development of money that legislation merely codified. These institutions were not part of government planning, but rather of government codification of already-in-action plans.

Likewise, this is why I disagree with “one-drop” libertarians (ie, those who oppose anything and everything government does, insisting it must inherently be inefficient). Not every institution the government codifies is inherently inefficient. When they merely codify what people are already doing, then that may not change the efficiency at all (indeed, given certain conditions, it may improve efficiency). GMU paving the Hayek Memorial Pathway does not in and of itself imply the pathway is in any way less a spontaneous order or less efficient.

Today's Quote of the Day...

…comes from the Preface of Mordenkainen’s Tome of Foes: A Dungeons and Dragons Supplement:

Perhaps it’s no accident that this book contains Mordenkainen’s first expression of the Balance. In here, he starts to describe the multiverse as a collection of opposing forces, each one trying to tip the scales of fate in its favor. But where does that leave us—all the soldiers in all these wars? Surely for the soldiers of all sides, a war is better when it is over.

Are you a soldier? What war do you fight? Whose side are you in? Law or Chaos? Evil or Good? Can you be sure that Mordenkainen would judge you as you judge yourself? When he puts his thumb on the scales to preserve the Balance, can you be certain that the weight of that finger will not crush you?

JMM: Protectionists often like to argue they are merely trying to get “a level playing field.” But, just like Mordenkainen putting his finger on the scale to restore the Balance, many people are crushed in the mean time. To the protectionist, they are simply dismissed as merely casualties that need to be sacrificed in the name of The Balance Of Trade. They are merely pawns to be sacrificed on their chessboard of politics.

And sometimes there are those who support The Balance but then find themselves crushed by the finger. Whirlpool, for example, who demanded tariffs in the name of fairness only to find themselves get crushed by the very fingers they demanded balance the scale.

Beware the sugar-coated words of those claiming to maintain some Balance; for those of us who live in the real word, who do not have the privilege of playing God, will often find themselves poisoned by those same words.

On the Presumption of Liberty

“[Harvey] Weinstein’s behavior is certainly dreadful, but even dreadful people have the right to a criminal defense. Indeed, probably most people who are charged with serious crimes, whether guilty or not, are not nice people, and many are moral reprobates. Yet forcing the government to prove guilt before tossing our fellow citizens in jail—even the reprobates among us—is the mark of a free people.”

This quote is taken from John McGinnis’ fine blog post The Campus Mob Comes for the Presumption of Innocence. A presumption of innocence permeates our justice system: the government has the burden of proof to convict. What’s more, this burden of proof is extremely high. The prosecution does not just need to produce some theory that the defendant might have committed the crime. Even a preponderance of evidence is not enough to take away a man’s liberty. What is necessary is the government needs to prove guilt beyond a reasonable doubt. Until that threshold is met in the eyes of a jury, the defendant is presumed innocent.

A presumption of innocence has a parallel in the presumption of liberty. The presumption of liberty holds that in assessing government policy we must meet a high burden of proof in order to endorse a reform that reduces liberty. There may be occasions where such intervention is desirable, sometimes even for overall liberty, but the mere possibility of such exceptions does not in and of itself justify the exception. A burden of proof must be met.

No liberal society can suffer the lack of a presumption of liberty. As McGinnis says above, the presumption of innocence, even to moral reprobates, is the mark of a free people. Likewise, the presumption of liberty, even if dealing with moral reprobates, is the mark of a free people. Exceptions can be made, such as the moral reprobate being thrown in prison after being shown beyond a reasonable doubt he committed a crime, but they must be exceptions rather than general rules.

Trade cannot be kept as free as it is without a presumption of liberty. The “free trade = fair trade” and “only reciprocal trade is free trade” claims are damaging to liberal society, because they weaken the presumption of liberty. Managed trade, where freedom to exchange is treated as an exception rather than a rule, spells illiberalism. The presumption of liberty must stand.

Trump's Trade War Rests Heavily on the Sunk Cost Fallacy

The trade war of the past year, and the rumblings of it on the campaign trail in 2016, are in support of a singular message from the President: “Make America Great Again!” By imposing tariffs on friend and foe alike, the idea is to force manufacturing jobs from other countries back to the United States. This scheme will supposedly bring back the halcyon days.

However, this argument rests on a logical fallacy: the sunk cost fallacy. The sunk cost fallacy is when one considers unrecoverable costs in their decision making. For example, someone goes to the movies and pays $10 for a ticket. The movie is terrible and they are trying to decide whether to stay or leave. Some will say “well, I paid the $10 so I might as well stay.” But that is fallacious reasoning. The choice being faced is whether to stay or go, not whether to pay $10 and stay or go. The $10 is already gone. The person will not get that money back; it’s property of someone else now.

The situation is similar with trade. Even if we take the short-run findings of Autor, Dorn, and Hanson at face value, even if we take the assumptions of Trump et al, that trade has made America weak, it does not logically follow that tariffs are a preferable option or that bringing back those jobs is desirable. The situation has changed. The effects of international trade are sunk costs; they do not factor into future decision making. The question is not whether or not tariffs can bring jobs back or return us to some virtuous past. The question is whether or not, given current conditions and margins along which people adjust, are tariffs the best trade-off?

Economic activity is dynamic. It evolves, just like any ecosystem. It is shaped by the people within it as much as it shapes their behavior. Just as returning Earth to a super-hot primordial period (or an ice age) in order to achieve some goal may benefit certain elements but destroy most others, so would tariffs mess with the economic ecosystem.

Merely closing off trade is not the answer, even if we are to (erroneously) assume trade is harmful. People have adjusted around it, and the cure may very well be worse than the disease.

Today's Quote of the Day...

…is from page 227 of the 6th edition of Robert Cooter and Thomas Ulen’s textbook Law and Economics:

In communist countries like the former Soviet Union, planners could not get the information that they needed to manage an increasingly complex economy, which caused the economy to deteriorate. An increasingly complex economy must rely increasingly upon markets, which decentralize information. In this respect, making law resembles making commodities. As the economy grows in complexity, central officials cannot get the information that they need to make precise regulations. Instead of centralized lawmaking, the modern economy needs decentralized lawmaking analogous to markets.

JMM: Oftentimes, complexity is given as a reason to justify increased regulation. But, just like with markets, more complexity means more knowledge, wisdom, and information are needed to formulate such regulations. What’s more, as complexity increases, the costs and likelihood of systematic errors increases. Law develops, emerges, and evolves not through some central planning process, but rather in the same manner as the market process: through challenges, trial and error, and good old-fashioned human ingenuity. Law is, like the economy, a matter of human action but not human design.

For more on this point, I highly recommend Bruno Leoni’s Freedom and the Law and Bruce Benson’s The Enterprise of Law

Jon MurphyLaw & Economics
The Presumption of Liberty in Adam Smith

As I discussed the other day, Adam Smith had a presumption of liberty that permeates his “liberal system.” There were exceptions that could be made, naturally, but these exceptions mere existence did not in and of themselves justify the sovereign to act. Consider one such example discussed in the Wealth of Nations (emphasis added):

Were all nations to follow the liberal system of free exportation and free importation, the different states into which a great continent was divided would so far resemble the different provinces of a great empire. As among the different provinces of a great empire the freedom of the inland trade appears, both from reason and experience, not only the best palliative of a dearth, but the most effectual preventative of a famine; so would the freedom of the exportation and importation trade be among the different states into which a great continent was divided. The larger the continent, the easier the communication through all the different parts of it, both by land and by water, the less would any one particular part of it ever be exposed to either of these calamities, the scarcity of any one country being more likely to be relieved by the plenty of some other. But very few countries have entirely adopted this liberal system. The freedom of the corn trade is almost every-where more or less restrained, and, in many countries, is confined by such absurd regulations as frequently aggravate the unavoidable misfortune of a dearth into the dreadful calamity of a famine. The demand of such countries for corn may frequently become so great and so urgent that a small state in their neighbourhood, which happened at the same time to be labouring under some degree of dearth, could not venture to supply them without exposing itself to the like dreadful calamity. The very bad policy of one country may thus render it in some measure dangerous and imprudent to establish what would otherwise be the best policy in another. The unlimited freedom of exportation, however, would be much less dangerous in great states, in which the growth being much greater, the supply could seldom be much affected by any quantity of corn that was likely to be exported. In a Swiss canton, or in some of the little states of Italy, it may perhaps sometimes be necessary to restrain the exportation of corn. In such great countries as France or England it scarce ever can.

Page 539.39

In short, there may be good reason to limit exports of food to a neighboring country if they are so famished that they would draw away local food production due to higher prices. However, this potential exception does not in and of itself justify the prohibitions. Smith goes on to say (emphasis added):

To hinder, besides, the farmer from sending his goods at all times to the best market is evidently to sacrifice the ordinary laws of justice to an idea of public utility, to a sort of reasons of state; an act of legislative authority which ought to be exercised only, which can be pardoned only in cases of the most urgent necessity. 

Page 539.39

The act of interfering in trade is a sacrifice of the ordinary laws of justice, the laws the sovereign is sworn to uphold in the liberal system of Adam Smith (for the list of sovereign duties, see Pg. 687.51). Thus, Smith reasons, the sovereign should only undertake these exceptions, not when it is merely justified, but when it is “urgent[ly] necessary.”

Another example of this high burden of proof exists in his discussion of the national defense exception to free trade. Smith writes:

There seem, however, to be two cases in which it will generally be advantageous to lay some burden upon foreign for the encouragement of domestic industry.

The first is, when some particular sort of industry is necessary for the defence of the country. The defence of Great Britain, for example, depends very much upon the number of its sailors and shipping. The act of navigation, therefore, very properly endeavours to give the sailors and shipping of Great Britain the monopoly of the trade of their own country in some cases by absolute prohibitions and in others by heavy burdens upon the shipping of foreign countries.

Pg. 463.23-24

However, Smith goes on to say this mere justification is not enough (emphasis added):

When the act of navigation was made, though England and Holland were not actually at war, the most violent animosity subsisted between the two nations. It had begun during the government of the Long Parliament, which first framed this act, and it broke out soon after in the Dutch wars during that of the Protector and of Charles the Second. It is not impossible, therefore, that some of the regulations of this famous act may have proceeded from national animosity. They are as wise, however, as if they had all been dictated by the most deliberate wisdom. National animosity at that particular time aimed at the very same object which the most deliberate wisdom would have recommended, the diminution of the naval power of Holland, the only naval power which could endanger the security of England.

Page 464.30

The acts of navigation, which were indeed a violation of the ordinary laws of justice, were justified and proper (note this word “properly” appears in his initial justification in paragraph 24) in this particular case because war with Holland was inevitable and imminent. National defense, then, is not a broad exception to the liberal system of free importation and free exportation, but rather a very specific exception in the face of imminent national danger.

The duties of the sovereign in Smith are threefold: defend the nation from outside invasion, enforce the rules of justice domestically, and provide public works that are necessary and proper for the nation. These actions imply a presumption of liberty within the liberal system. The sovereign certainly has the right as a sovereign to perform certain actions that may violate liberty, but this power is one that must be executed with propriety as it violates the role of the sovereign as administrator of justice. Violations of the most ordinary laws of justice should not be undertaken lightly, and as these above quotes show (and many others throughout the Wealth of Nations, Theory of Moral Sentiments, and Lectures on Jurisprudence, not to mention his own correspondences), mere justification for a sovereign act is not enough to authorize such an act.

Economic Growth and the Division of Labor

Tyler Broker, the Free Expression and Privacy Fellow at U. Arizona Law School (also my friend), has a very good article at Above the Law. There is much to like in Tyler’s article, but I do want to pick one important nit. Tyler writes:

Indeed, in near-Earth space one can easily visualize how the best aspects of capitalism will be utilized to lift humanity into a new age. Capitalism operates best when markets are allowed to continually grow and expand. This is in part why a capitalist system has been so successful (for some), here in the United States. This country began with 13 colonies and followed with continual territorial and population expansion for the next 200 and counting years. Of course, this expansion came at the great conquest and exploitation of human labor, including enslaving whole civilizations and generations of human beings. An unfathomable wrong yet to be fully acknowledged, appreciated in the scope of barbarity, or morally corrected.

Tyler is correct that markets are best when they can grow and expand. However, Tyler’s comment suggests this growth is in physical territory and labor. While those resources are important, they are not the only thing. Markets also expand by taking advantage of the division of labor and specialization. Early on in his famous book, Adam Smith shows how specializing allows a pin factory to become more productive. When people divide their labor, they can become more productive. This means they produce more with fewer (or the same number of) inputs.

However, the division of labor is limited by the extent of the market. On a deserted island, Robinson Crusoe cannot specialize. When Friday comes, he can. If more people can come to the island, Robinson can specialize more and more.

Expanding the market can mean, as Tyler discusses above, expanding land and labor. But it can also occur by trade. If the world were to discover an alien race beyond the stars and (assuming transaction costs overcome) began trading with them, that would expand our markets.

More land and labor can help markets flourish, but imperialism need not be an end-point for capitalism (I do not think Tyler is suggesting it is, but there are some out there who do argue imperialism is the only way to sustain capitalism). Rather, simply opening up trade, markets can expand, and prosperity can grow.

Adam Smith and the Nirvana Fallacy

Adam Smith was no anarchist. Indeed, at the time he was writing, he was a fairly conservative liberal (interesting that those of us who follow Adam Smith’s teachings are considered radical). Adam Smith did have a strong presumption of liberty, but this presumption was not absolute. Under certain conditions, a jural superior (such as a sovereign or magistrate) could violate this presumption of liberty.

But Smith’s analysis did not stop there. He also explored the nature of the jural superior. While Smith does have a science of the legislator, he also repeatedly emphasized that jural superiors are also human beings like us.

To give one such example, in the Theory of Moral Sentiments, Smith writes on how it is a natural human reaction to feel resentment and revenge when once does something against us. Indeed, not rendering gratitude where gratitude is due can cause this passion to arise (see Part 2, and especially Section 2). This jealousy can cause us to act in a harmful and unjust manner; beneficence cannot be extracted by force. But, while Smith is examining jural equal relations here, he also applies this same sentiment to national governments and legislators. In The Wealth of Nations, when Smith is discussing a potential use of tariffs to reduce/eliminate tariffs by other governments, he begins by stating that, when one nation raises tariffs on another “[r]evenge…naturally dictates retaliation, and that we should impose the like duties and prohibitions upon the importation of some or all of their manufactures into ours. Nations, accordingly, seldom fail to retaliate in this manner“ (Page 467.38). Revenge, that natural emotion according to Smith, is applied to national governments here and not just individuals. Smith goes on to tell of a trade war between the Dutch and French which became a shooting war.

After this story, Smith lays out his potential exception to the aforementioned presumption of liberty (Emphasis added):

There may be good policy in retaliations of this kind, when there is a probability that they will procure the repeal of the high duties or prohibitions complained of. The recovery of a great foreign market will generally more than compensate the transitory inconveniency of paying dearer during a short time for some sorts of goods. 

Page 467.39

However, he immediately follows it up with a reminder that we are dealing with people here. The science of a legislator may recommend this policy, but we must remember we are dealing with people with passions, not necessarily a dispassionate legislator:

To judge whether such retaliations are likely to produce such an effect does not, perhaps, belong so much to the science of a legislator, whose deliberations ought to be governed by general principles which are always the same, as to the skill of that insidious and crafty animal, vulgarly called a statesman or politician, whose councils are directed by the momentary fluctuations of affairs.

Page 467.39

He then brings us back to the presumption of liberty:

When there is no probability that any such repeal can be procured, it seems a bad method of compensating the injury done to certain classes of our people to do another injury ourselves, not only to those classes, but to almost all the other classes of them. his may no doubt give encouragement to some particular class of workmen among ourselves, and by excluding some of their rivals, may enable them to raise their price in the home-market. Those workmen, however, who suffered by our neighbours prohibition will not be benefited by ours. On the contrary, they and almost all the other classes of our citizens will thereby be obliged to pay dearer than before for certain goods. Every such law, therefore, imposes a real tax upon the whole country, not in favour of that particular class of workmen who were injured by our neighbours prohibition, but of some other class.

Page 467.39

By starting with a reminder that revenge is a natural passion within our breast and a story about a war of jealousy between two nations, Smith argues that the probability that higher domestic tariffs will lead to the reduction of foreign tariffs is not particularly high.

Smith avoids the trap that many economists after him would fall into: the Nirvana Fallacy. A term first coined by the late Harold Demsetz, the Nirvana Fallacy is when one compares an imperfect current situation to an idealized alternative. Mid-Century economists often made this mistake by pointing to market failures and justifying some policy to correct these failures. Public Choice economics expanded on the Nirvana Fallacy by assuming government actors are just like market actors. Smith did not fall into this trap, and thus his presumption of liberty was extremely strong in his eyes.

The fun thing about reading Adam Smith is seeing insights in his work that would, for one reason or another, be lost to economists only to be discovered centuries later. The example above of the Nirvana Fallacy is one, but Smith also had many insights into Law & Economics.

Adam Smith had a presumption of liberty, and while that presumption was not absolute, he was under no impression that the mere existence of a justification for policy X or Y was in any way sufficient to create policy X or Y. After all: “They whom we call politicians are not the most remarkable men in the world for probity and punctuality” (Lectures on Jurisprudence, Pg. 539).