Commensurability and Agency

Alon Harel & Ariel Porat

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Introduction

In this Editorial we focus our attention on two concerns for Law and Economics (LE). The first relates to commensurability and the second focuses on agency. Both concerns are central to LE. The first concern questions the dominant method LE uses for making substantive decisions. The second concern challenges the assumption that the choice of agents in charge of decision-making is based solely on the question of which agents can most accurately and efficiently make these decisions.

I. Commensurability and Unconventional Comparisons

In this Part we present three types of comparisons that courts and legislatures systematically avoid. Then, we try to explain why courts and legislatures avoid those comparisons and ask if LE can provide an account of such behavior.

A. Trading High Risks to Life and Limb for Money

In negligence law, under the Hand formula, courts ought to make comparisons between money and risks to life and limb. But in reality courts avoid such comparisons when risks to life or limb are high; that is, when there is a high probability that, without precautions, a specific individual (even if an unidentified individual) would die or suffer serious injuries. This raises a puzzle for LE: why do courts (and legislatures) so rarely make such comparisons? After all, LE offers methods for valuing people’s lives and limbs, and it is unclear why courts do not use those or other methods for such comparisons.

B. Inter-Personal Comparisons

In tort law, lost income is a major factor in awarding damages for bodily injury. That means that high-income victims receive more generous compensation than low income victims. In order to justify this principle from a LE perspective, one should accept the premise that the social value of a high-income individuals’ life and limb is higher than that of a low-income individuals’ life and limb. Interestingly, however, tort law implicitly rejects this argument because, in setting the standard of care, courts ignore the potential victims’ lost income. Thus, courts would probably refuse to set different standards of care for driving in a rich neighborhood, as opposed to a poor neighborhood, just because people in the former neighborhood have, on average, higher income. Similarly, a doctor who must allocate scarce time between a high-income and low-income patient is likely to be found negligent if the doctor decided to allocate more time to the former than to the latter (all else being equal). Courts’ reluctance to tailor the standard of care to people’s income—and to other personal characteristics as well—could be explained in terms of their refusal to compare one person’s life to another in terms of their social value.

LE does not respond to the challenge of comparing the values of different people’s life and limb to one another and does not provide satisfactory tools for implementing such comparisons.

C. Trading Human Rights

Should basic human rights be traded away for the sake of preserving other values, which are not categorized as basic human rights? Take the case of torture as an illustration: should coercive interrogation (torture) be tolerated when it could save lives? While there is a fierce debate about it, we know of no case law or scholarly writing suggesting that torture should be permitted when it saves money. If one adheres to the principle that everything is commensurable, one must arrive at a different result: if torture could save huge amounts of social resources (even if not human life), it is acceptable. Moreover, society could use those resources to promote people’s safety and thereby save human lives.

LE does not provide an explanation for what seems to be the principled and insistent reluctance to even consider the possibility of torturing a person for the sake of protecting monetary interests.

D. Lexical Order and Law and Economics

The three types of cases discussed above illustrate that there are some types of comparisons that are either not made by courts and legislatures, at least not explicitly, or that, even if made, reach different results than what LE’s uninhibited commensurability premise dictates. Why is the law reluctant to make such comparisons? We provide here three explanations.

First, sometimes the law implicitly assumes that the two objects (or actions) to be compared are identical in value. Second, sometimes courts and legislatures circumvent the need to make comparisons in order to avoid conflicts or controversy. Third, sometimes one object is considered to be lexically superior to the other; namely, a comparison between the two objects generates a result that one object is always more valuable than the other. The two latter explanations, especially the third one, cannot be reconciled with the premise of commensurability endorsed by LE.

In the high risk to life situation, the second explanation (circumventing the need to make comparisons) seems to apply. Many would consider assigning monetary value to human life when the risk is high to be wrong in principle. Therefore, courts and legislatures would do their best to avoid it, and, if they have to assign monetary value to human life,  they would try to do it implicitly or in a way that does not attract public attention.

In the inter-personal comparisons cases, the first explanation (implicit assumption of identical values) seems to apply. Courts presumably assume that the social value the law ascribes to the lives of different people is identical: no person’s life is more valuable than the life of any other person. This explanation could raise a straightforward objection, since courts award different amounts of damages to victims, in accordance with their lost income, and that, in turn, leads to a variance in the level of care injurers actually take toward high-income and low-income victims. The second explanation may justify this apparent inconsistency in the law (circumventing the need to make comparisons). The law recognizes that different people’s lives have different value, but, instead of recognizing this variance explicitly (by setting a differential standard of care), the law recognizes this variance implicitly (by awarding differential damages).

In the human rights situations, the two first explanations could not provide a satisfactory answer to the law’s deference to basic human rights over other values. The third explanation could be the most persuasive one: maybe there is a lexical priority to basic human rights. Consequently, these rights always override other values. If this explanation is right, it contradicts LE’s premise according to which all objects and values have finite values and consequently can be overridden by conflicting considerations.

In the next section, we make the claim that lexical priority does not explain the resistance of courts and legislatures to compare human rights and other values. We argue that this resistance is the consequence of courts’ and legislatures’ refusal to commodify basic human rights when such commodification can be avoided at reasonable costs. We establish that lexical priority cannot be the explanation with a simple exercise in logic: we show that the law allows trading basic human rights for certain values, that it allows trading those latter values for money, and, at the same time, that it does not allow trading basic human rights for money. This exercise indicates that there are comparisons which the law refuses to make simply because the comparison as such is considered detrimental to some important social values. This phenomenon poses a challenge to LE. We call it “the non-transitivity challenge.”

E. The Non-Transitivity Challenge

Consider a legal system that allows coercive interrogation for the sake of saving human lives. Suppose now that, in the same jurisdiction, the government is willing to spend no more than $2M to save the life of an individual, for example, the life of a patient in a public hospital who is about to die. Would the conjunction of claims imply that the government is legally able—or may even be under a legal duty—to torture a suspect when such torture is likely to save $2M? The principle of transitivity seems to suggest that such an implication is inevitable. Nevertheless, it seems that no (sane) legal system would give a positive answer to this question. Why?

The reason is—or so we argue—that there are social costs in comparing the harm of torture with money, namely, the costs of commodifying basic human rights by converting them into money. Indeed, the law makes such conversions , but only when they are inevitable. Thus, the government must decide how much money to spend to save a life because of the government’s scarce resources. Courts must decide how much an injurer should spend on reducing risks to life. In all those situations, the costs of making the uneasy comparisons are worth incurring because there is no other choice. Sometimes, however, reasonable alternatives exist which, all in all, are much better than making those costly comparisons.

Let us see now how the criterion of the inevitability of the comparison could explain the non-transitivity regarding the comparison between torture and money saving. The comparison between the harm of torture and the value of the life saved if torture occurs is sometimes inevitable. Not allowing such comparisons would come at too a high cost. More importantly, this comparison does not require commodification of human lives because the values compared are of the same type. Therefore, some theorists believe that these comparisons are sometimes permissible.

The comparison between life and money in cases where the government must decide how to spend its scarce resources, as in the public hospital case, is also inevitable. Furthermore, one could frame the comparison that the government makes in allocating its resources as a comparison between lives of different people, as opposed to life against money. Such framing could mitigate the commodification concern.

A comparison between the harm of torture and money savings is troubling: by engaging in such comparisons, the legal system expresses publicly its limited commitment to the protection of human life. More importantly, the comparison is not inevitable: society can do without it. A case in which torture can save a lot of money is rare, and having a bright line rule which prohibits it categorically would not entail prohibitively high costs. Furthermore, avoiding torture that could save $2M would not really cause a person’s death, even if, in other contexts, $2M could save a life.

II. Selecting Agents to Perform Public Roles

This Part explores the underlying justification for doctrines assigning certain functions to public entities and prohibiting the delegations of such powers to private entities. We establish in the full-length piece on which we base this Editorial that there are non-instrumental considerations (dignity-based considerations) underlying the decision of who the proper agent to perform a certain task is and that some tasks ought, as a matter of principle, to be performed only by public agents. Dignity-based considerations explain therefore the reasons underlying the persistent opposition to privatization, despite the LE conviction that privatization is conducive to an efficient performance of certain functions.

A. The Dilemma of Privatization

Recent years have seen greater willingness to privately perform functions, which have traditionally been considered public. Such functions include, for instance, the infliction of criminal sanctions (private prisons and shame penalties) and even the fighting of wars (Blackwater). Numerous commentators oppose privatization on instrumental grounds, namely on the basis of the claim that it is detrimental to the performance of the relevant functions.

We suggest that there are non-instrumental considerations barring privatization, and we use criminal sanctions as our primary example. Punishment that a private body inflicts is a form of subjecting the criminal to the will of another person (and thus violates the criminal’s dignity) rather than to the will of the state. The infliction of a sanction by a private agent is a private act, which cannot be properly attributed to the state and, thus, cannot be justified on the basis of the judgment of the state. Let us establish why.

Criminal sanctions involve two major decisions: fundamental societal decisions or choices and their execution or implementation. The decision concerning the appropriate sanction for a crime is a fundamental societal decision. It is a decision which, to be legitimate, the government must decide. Yet, our focus here is not on these fundamental societal decisions but on the more controversial cases, which involve the actual execution or implementation of these societal decisions, such as the act of inflicting a criminal sanction (whose severity is determined by the court or the legislator). Our task is to explain why some fundamental societal decisions ought not merely to be made by the state but also ought to be executed or implemented directly by public officials and not by private contractors.

B. Inherent Governmental Function in Legal Theory

The view that some functions ought to remain public is highly influential. The technical term used to describe it is the concept of “inherently governmental function,” which the Federal Activities Inventory Reform (“FAIR”) Act of 1998 describes as “a function that is so intimately related to the public interest as to require performance by Federal Government employees.”  Yet the term “inherently governmental function” remains vague, and federal agencies use different definitions and interpretations when deciding which functions or activities are “so intimately related to the public interest.” We propose to give an account of this concept which is based on political theory.

C. From Legal Doctrine to Potential Theory

The normative challenge is to explain why sometimes it is impermissible to delegate certain powers to private agents even if these agents seem to perform as good or even better than public agencies. To understand the underlying reasons, assume that a public official approached you and asked you to participate in the infliction of criminal sanctions on a convicted criminal. Presumably, your first reaction would be (and should be) to investigate what the crime is and what the procedures used for the conviction were. It is only after you have made such judgments that you can permissibly inflict the sanction.

Given that in order to permissibly inflict the sanction it was necessary for you to consider the justness of inflicting the sanction, it follows that the sanction inflicted by you is not a mere execution of a publicly mandated decision. After all, the infliction of the sanction required moral judgement on your part—a judgement which you performed as a private citizen. Your judgement concerning the appropriateness of the infliction of the sanction in this case is critical. The contribution to the genesis of your action—the infliction of the sanction—made by the court’s decision to inflict a sanction is, so to speak, superseded by your own judgement that the sanction is appropriate. In short, the infliction of the sanction ought not be regarded exclusively as an execution of the state’s will; your will is (also) responsible for it, and you as a private individual are (also) accountable for it.

If you are accountable (at least partially) for the infliction of the sanction, it follows that the infliction of the sanction results in subjecting the criminal to your private judgment and not only to that of the state. Such an act violates the criminal’s dignity, as the act of inflicting the sanction constitutes a decision to inflict a sanction based on the judgment of a private agent rather than on the judgment of the state. As only the judgment of the state can legitimately be used to inflict a sanction, its infliction on the basis of a private judgment violates the criminal’s dignity.

Perhaps the argument is too strong. Perhaps this argument applies to everybody; in particular, perhaps it also applies to public officials. If so, no action of the state is purely public. Every act of the state is equally tainted, because every act is subject to scrutiny by the entity who executes it. After all, the state always needs an agent to execute its will; its will is never self-executed.

We maintain that this is not the case, as public officials are servants of justice as understood by the state, not of justice as understood by public officials. To act in the name of the state, a public official must obey blindly (within certain boundaries) the orders of the state. It is this blind conformity that makes an executioner a public official in the first place and that also justifies labeling the executioner’s acts as acts of state.

The term blind conformity inevitably raises resistance. To address this concern we point out some limitations of “blind conformity.” Yet, even after acknowledging these limitations, the act of the public official is an act which can be properly attributed to the state and, unlike the act of a private citizen, does not involve a private judgment.  Consequently, it is an act which represents the public will of the state rather than the private will of the public official.

To sum up: it is demeaning for a person to be subjected to the normative judgment of another citizen rather than to the normative judgment of the state. Dignity requires that public authority dictate and execute judgments concerning criminality. If private persons enforce the judgments, such enforcement is a simple violation of the autonomy of those subjected to these sanctions. Thus, it is ultimately the dignity of criminals that explains the significance attributed to the identity of the agents inflicting the sanction. We conclude that there are strong non-instrumental arguments supporting the view that the infliction of criminal sanctions ought to be implemented exclusively by the state and that only public officials (public employees or soldiers) are capable of implementing decisions in the name of the state. It seems that these considerations conflict with the overarching premise underlying LE: that the choice of agents should be governed exclusively by instrumental considerations.

Conclusion

In this Editorial and the full-length piece on which we based it, we challenge LE’s uncompromised insistence that all values and objects are commensurable and that performing public tasks should always be delegated to private bodies when the latter are—instrumentally speaking—better in performing such tasks. We realize that some of the solutions offered to the examples discussed in the paper could be explained in instrumental terms and even accommodated with the basic premises of LE. We still maintain that LE should do more work, either by modifying its basic premises or, so to speak, by “biting the bullet.” The most important starting point, however, is that LE scholars acknowledge first that, irrespective of whether these concerns eventually should be set aside, they constitute a “bullet,” and this bullet deserves attention.

Acknowledgments:

Copyright © 2011 Cornell Law Review.

This editorial is based on Alon Harel and Ariel Porat’s Article: Alon Harel & Ariel Porat, Commensurability and Agency: Two Yet-To-Be-Met Challenges for Law and Economics, 96 CORNELL L. REV. __ (forthcoming 2011).

Alon Harel is the Phillip P. Mizock & Estelle Mizock Professor in Administrative and Criminal Law at the Hebrew University of Jerusalem; Professor of Law, Boston University Law School.

Ariel Porat is the Alain Poher Professor of Law at Tel Aviv University and the Fischel-Neil Distinguished Visiting Professor of Law at the University of Chicago.

We thank Susan Jahangiri for her careful edit.


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