Two Rights of Free Speech

ANDREI MARMOR

RATIO JURIS

Abstract: My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case.

Social contracts for real moral agents: a synthesis of public reason and public choice approaches to constitutional design

KEVIN VALLIER

CONSTITUTIONAL POLITICAL ECONOMY

Abstract: Citizens in contemporary democratic societies disagree deeply about the nature of the good life, and they disagree just as profoundly about justice. In building a social contract theory for diverse citizens, then, we cannot rely as heavily on the theory of justice as John Rawls did. I contend that Rawlsian liberals should instead focus on developing an account of constitutional choice that does not depend on agreement about justice. I develop such an account by drawing on the contractarian approach to constitutional choice pioneered by public choice theorists, especially James Buchanan. With some modifications, public choice can help identify mutually justifiable constitutional rules based on the extent to which these constitutional rules produce appropriate laws under normal conditions. This new, synthetic approach to constitutional choice also helps to explain the moral significance of contractarian agreement for the public choice theorist.

Grotius on Property and the Right of Necessity

DENNIS KLIMCHUK

JOURNAL OF THE HISTORY OF PHILOSOPHY

Abstract: It is widely held that in situations of peril, it is permissible to use another’s property without her permission if that is the only way to save oneself from serious harm, but that if one damages or consumes that property, one ought to compensate its owner. However, this idea—that there is what is commonly called ‘the right of necessity’—has proven surprisingly difficult to justify. According to Grotius, the right of necessity issues from a constraint imposed by natural law on the positive law of private property. I defend an interpretation of Grotius’s account of property and the right of necessity against some recent sympathetic readers, and show how he escapes a seemingly telling criticism from Pufendorf.

De-moralization as Emancipation: Liberty, Progress, and the Evolution of Invalid Moral Norms

ALLEN MUCHANAN and RUSSELL POWELL

SOCIAL PHILOSOPHY AND POLICY, Volume 34, Issue 2

Abstract: Liberal thinkers of the Enlightenment understood that surplus moral constraints, imposed by invalid moral norms, are a serious limitation on liberty. They also recognized that overcoming surplus moral constraints — what we call proper de-moralization — is an important dimension of moral progress. Contemporary philosophical theorists of liberty have largely neglected the threat that surplus moral constraints pose to liberty and the importance of proper de-moralization for human emancipation. This essay examines the phenomena of surplus moral constraints and proper de-moralization, utilizing insights from biological and cultural evolutionary thinking.

30 years after the nobel: James Buchanan’s political philosophy

MICHAEL C. MUNGER

THE REVIEW OF AUSTRIAN ECONOMICS

Abstract: There are three main foundations of Public Choice theory: methodological individualism, behavioral symmetry, and “politics as exchange.” The first two are represented in nearly all work that identifies as “Public Choice,” but politics as exchange is often forgotten or de-emphasized. This paper—adapted from a lecture given on the occasion of the 30th year after Buchanan’s Nobel Prize—fleshes out Buchanan’s theory of politics as exchange, using four notions that are uniquely central to his thought: philosophical anarchism, ethical neutrality, subjectivism, and the “relatively absolute absolutes.” A central tension in Buchanan’s work is identified, in which he seems simultaneously to argue both that nearly anything agreed to by a group could be enforced within the group as a contract, and that there are certain types of rules and arrangements, generated by decentralized processes, that serve human needs better than state action. It is argued that it is a mistake to try to reconcile this tension, and that both parts of the argument are important.

 

The ethics of pure entrepreneurship: An Austrian economics perspective

THE REVIEW OF AUSTRIAN ECONOMICS

ISRAEL M. KIRZNER

Abstract: This paper focuses on the justice of income distribution in a system of private property rights. Milton Friedman argued that the “ethical principle that would directly justify the distribution of income in a free society is ‘to each according to what he and the instruments he owns produces’” (1962: 161–2). In this paper we (a) show that the winning of pure entrepreneurial profit cannot be justified on the basis of Friedman’s ethical principle, and (b) argue that a fuller understanding of the meaning of “pure entrepreneurial profit” reveals that Friedman’s universal ethic is of little relevance to capitalism, properly understood as a free enterprise system. To pass ethical judgment on pure entrepreneurial profit, it is necessary to supplement Friedman’s ethical principle with additional ethical insights. This paper does not argue directly in favor of any one such possible additional insight; it will simply demonstrate how one such additional insight might, if it passes final ethical screening, serve as the ethical defense of pure capitalism, which, we argue, Friedman’s ethical principle is unable to do.

Individualism, Collectivism, and Trade

AIDIN HAJIKHAMENEH, ERIK O. KIMBROUGH

EXPERIMENTAL ECONOMICS

Abstract: While economists recognize the important role of formal institutions in the promotion of trade, there is increasing agreement that institutions are typically endogenous to culture, making it difficult to disentangle their separate contributions. Lab experiments that assign institutions exogenously and measure and control individual cultural characteristics can allow for clean identification of the effects of institutions, conditional on culture, and help us understand the relationship between behavior and culture, under a given institutional framework. We focus on cultural tendencies toward individualism/collectivism, which social psychologists highlight as an important determinant of many behavioral differences across groups and people. We design an experiment to explore the relationship between subjects’ degree of individualism/collectivism and their willingness to abandon a repeated, bilateral exchange relationship in order to seek potentially more lucrative trade with a stranger, under enforcement institutions of varying strength. Overall, we find that individualists tend to seek out trade more often than collectivists. A diagnostic treatment and additional analysis suggests that this difference may reflect both differential altruism/favoritism to in-group members and different reactions to having been cheated in the past. This difference is mitigated somewhat as the effectiveness of enforcement institutions increases. Nevertheless we see that cultural dispositions are associated with willingness to seek out trade, regardless of institutional environment.