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5 Journal Entries of 250 words each based on the articles attached. Articles are labeled as 1, 2, 3, 4, 5 so it will make it much easier for you to see which one to use for each question. Outline Singer’s line of reasoning in defense of assigning non-human animals the same right not to suffer as humans. Ensure that you understand the principles of equality and non-discrimination, the concepts of interest, sentience and the ability to suffer. Ensure that you can summarize how he goes about showing how defenders of human privilege are actually thinking prejudicially and arbitrarily when selecting those who are to count as members of the moral community. (NUMBER 1) Identify, in this and in other sustainable development documents you may wish to read, the underlying world view, value, and ethical assumptions being made. To what sort of theory do they subscribe, and does that commitment play out in the recommendations and policies of sustainable development? (Number 2 and any other from internet) Explain how the language of globalization serves the interests of large corporations and how it allows the economic and decision-making powers to ignore the real sources of responsibility for environmental degradation. How then is this used to impose a Northern perspective and values onto developing nations and communities? Are you convinced by Shiva’s argument? (Number 3) Characterize the difference between the concepts of the moral agent from the point of view of cost-benefit analyses and Kant, as Sagoff sees it. Try to draw out the significance of the distinction, especially as it pertains to how people are treated. What does it accomplish for consideration of non-human beings (Number 4, 4a, 4b) Compare Naess and Sylvan’s responses to conservative thinking. Who seems to be the more radical? Why? It would be helpful to jot down reasons you might have for your own position, either radical or conservative. (Number 5a, 5b)
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8/9/2020 The Shallow and the Deep www.alamut.com/subj/ideologies/pessimism/Naess_deepEcology .html 1/7 Present Past Subjects Projects Misc TH E S H ALLO W A N D T H E D EEP THE SHALLOW AND THE DEEP, LONG RANGE ECOLOGY MOVEMENTS A SUMMARY Arne Naess Originally published in Inquiry (Oslo), 16 (1973). THE EMERGENCE OF ECOLOGISTS from their former relative obscurity marks a turning point in our scientific communities. But their message is twisted and misused. A shallow, but presently rather powerful movement, and a deep, but less influential movement, compete for our attention. I shall make an effort to characterize the two. I. The Shallow Ecology movement: Fight against pollution and resource depletion. Central objective: the health and affluence of people in the developed countries. II. The Deep Ecology movement: 1. Rejection of the man-in-environment image in favor the relational, total-field image. Organisms as knots in the biospherical net or field of intrinsic relations. An intrinsic relation between two things A and B is such that the relation belongs to the definitions of basic constitutions of A and B, so that without the relation, A and B are no longer the same things. The total-field dissolves not on the man-in-environment concept, but every compact thing-in-milieu concept- except when talking at a superficial or preliminary level of 8/9/2020 The Shallow and the Deep www.alamut.com/subj/ideologies/pessimism/Naess_deepEcology .html 2/7 communication. 2. Biospherical egalitarianism-in principle. The “in principle” clause is inserted because any realistic praxis necessitates some killing, exploitation, and suppression. The ecological field-worker acquires a deep-seated respect, or even veneration, for ways and forms of life. He reaches an understanding from within, a kind of understanding that others reserve for fellow men and for a narrow section of ways and forms of life. To the ecological field-worker, the equal right to live and blossom is an intuitively clear and obvious value axiom. Its restriction to humans is an anthropocentrism with detrimental effects upon the life quality of humans themselves. The quality depends in part upon the deep pleasure and satisfaction we receive from close partnership with other forms of life. The attempt to ignore our dependence and to establish a master-slave role has contributed to the alienation of man from himself. Ecological egalitarianism implies the reinterpretation of the future-research variable, “level of crowding,” so that general mammalian crowding and loss of life-equality is taken seriously, not only human crowding. (Research on the high requirements of free space of certain mammals has, incidentally, suggested that theorists of human urbanism have largely underestimated human life-space requirements. Behavioral crowding symptoms, such as neuroses, aggressiveness, loss of traditions, are largely the same among mammals.) 3. Principles of diversity and of symbiosis. Diversity enhances the potentialities of survival, the chances of new modes of life, the richness of forms. And the so- called struggle for life, and survival of the fittest, should be interpreted in the sense of the ability to coexist and cooperate in complex relationships, rather than the ability to kill, exploit, and suppress. “Live and let live” is a more powerful ecological principle than “Either you or me.” The latter tends to reduce the multiplicity of kinds of forms of life, and also to create destruction within the communities of the same species. 8/9/2020 The Shallow and the Deep www.alamut.com/subj/ideologies/pessimism/Naess_deepEcology .html 3/7 Ecologically inspired attitudes therefore favor diversity of human ways of life, of cultures, of occupations, of economies. They support the fight against economic and cultural, as much as military, invasion and domination, and they are opposed to the annihilation of seals and whales as much as to that of human tribes and cultures. 4. Anti-class posture. Diversity of human ways of life is in part due to (intended or unintended) exploitation and suppression on the part of certain groups. The exploiter lives differently from the exploited, but both are adversely affected in their potentialities of self- realization. The principle of diversity does not cover differences due merely to certain attitudes or behaviors forcibly blocked or restrained. The principles of ecological egalitarianism and of symbiosis support the same anti-class posture. The ecological attitude favors the extension of all three principles to any group conflicts, including those of today between developing and developed nations. The three principles also favor extreme caution toward any over-all plans for the future, except those consistent with wide and widening classless diversity. 5. Fight against pollution and resource depletion. In this fight ecologists have found powerful supporters, but sometimes to the detriment of their total stand. This happens when attention is focused on pollution and resource depletion rather than on the other points, or when projects are implemented which reduce pollution but increase evils of other kinds. Thus, if prices of life necessities increase because of the installation of anti- pollution devices, class differences increase too. An ethics of responsibility implies that ecologists do not serve the shallow, but the deep ecological movement. That is, not only point five, but all seven points must be considered together. Ecologists are irreplaceable informants in any society, whatever their political color. If well organized, they have the power to reject jobs in which they submit themselves to institutions or to planners with limited 8/9/2020 The Shallow and the Deep www.alamut.com/subj/ideologies/pessimism/Naess_deepEcology .html 4/7 ecological objectives. As it is now, ecologists sometimes serve masters who deliberately ignore the wider perspectives. 6. Complexity, not complication. The theory of ecosystems contains an important distinction between what is complicated without any Gestalt or unifying principles–we may think of finding our way through a chaotic city–and what is complex. A multiplicity of more or less lawful, interacting factors may operate together to form a unity, a system. We make a shoe or use a map or integrate a variety of activities into a workaday pattern. Organisms, ways of life, and interactions in the biosphere in general, exhibit complexity of such an astoundingly high level as to color the general outlook of ecologists. Such complexity makes thinking in terms of vast systems inevitable. It also makes for a keen, steady perception of the profound human ignorance of biospherical relationships and therefore of the effect of disturbances. Applied to humans, the complexity-not-complication principle favors division of labor, not fragmentation of labor. It favors integrated actions in which the whole person is active, not mere reactions. It favors complex economies, an integrated variety of means of living. (Combinations of industrial and agricultural activity, of intellectual and manual work, of specialized and nonspecialized occupations, of urban and non-urban activity, of work in city and recreation in nature with recreation in city and work in nature…) It favors soft technique and “soft future-research,” less prognosis, more clarification of possibilities. More sensitivity toward continuity and live traditions, and more importantly, towards our state of ignorance. The implementation of ecologically responsible policies requires in this century an exponential growth of technical skill and invention–but in new directions, directions which today are not consistently and liberally supported by the research policy organs of our nation 8/9/2020 The Shallow and the Deep www.alamut.com/subj/ideologies/pessimism/Naess_deepEcology .html 5/7 states. 7. Local autonomy and decentralization. The vulnerability of a form of life is roughly proportional to the weight of influences from afar, from outside the local region in which that form has obtained an ecological equilibrium. This lends support to our efforts to strengthen local self-government and material and mental self-sufficiency. But these efforts presuppose an impetus towards decentralization. Pollution problems, including those of thermal pollution and recirculation of materials, also lead us in this direction, because increased local autonomy, if we are able to keep other factors constant, reduces energy consumption. (Compare an approximately self-sufficient locality with one requiring the importation of foodstuff, materials for house construction, fuel and skilled labor from other continents. The former may use only five percent of the energy used by the latter.) Local autonomy is strengthened by a reduction in the number of links in the hierarchical chains of decision. (For example a chain consisting of a local board, municipal council, highest sub-national decision-maker, a state-wide institution in a state federation, a federal national government institution, a coalition of nations, and of institutions, e.g., E. E. C. top levels, and a global institution, can be reduced to one made up of a local board, nation-wide institution, and global institution.) Even if a decision follows majority rule at each step, many local interests may be dropped along the line, if it is too long. Summing up then, it should, first of all, be borne in mind that the norms and tendencies of the Deep Ecology movement are not derived from ecology by logic or induction. Ecological knowledge and the life style of the ecological field-worker have suggested, inspired, and fortified the perspectives of the Deep Ecology movement. Many of the formulations in the above seven- point survey are rather vague generalizations, only tenable if made more precise in certain directions. But 8/9/2020 The Shallow and the Deep www.alamut.com/subj/ideologies/pessimism/Naess_deepEcology .html 6/7 all over the world the inspiration from ecology has shown remarkable convergences. The survey does not pretend to be more than one of the possible condensed codifications of these convergences. Secondly, it should be fully appreciated that the significant tenets of the Deep Ecology movement are clearly and forcefully normative. They express a value priority system only in part based on results (or lack of results, cf. point six) of scientific research. Today, ecologists try to influence policy-making bodies largely through threats, through predictions concerning pollutants and resource depletion, knowing that policy- makers accept at least certain minimum norms concerning health. But it is clear that there is a vast number of people in all countries, and even a considerable number of people in power, who accept as valid the wider norms and values characteristic of the Deep Ecology movement. There are political potentials in this movement which should not be overlooked and which have little to do with pollution and resource depletion. In plotting possible futures, the norms should be freely used and elaborated. Thirdly, insofar as ecology movements deserve our attention, they are ecophilosophical rather than ecological. Ecology is a limited science which makes use of scientific methods. Philosophy is the most general forum of debate on fundamentals, descriptive as well as prescriptive, and political philosophy is one of its subsections. By an ecosophy I mean a philosophy of ecological harmony or equilibrium. A philosophy is a kind of sophia wisdom, is openly normative, it contains both norms, rules, postulates, value priority announcements and hypotheses concerning the state of affairs in our universe. Wisdom is policy wisdom, prescription, not only scientific description and prediction. The details of an ecosophy will show many variations due to significant differences concerning not only “facts” of pollution, resources, population, etc., but also value priorities. Today, however, the seven points listed provide one unified framework for ecosophical systems. 8/9/2020 The Shallow and the Deep www.alamut.com/subj/ideologies/pessimism/Naess_deepEcology .html 7/7 In general systems theory, systems are mostly conceived in terms of causally or functionally interacting or interrelated items. An ecosophy, however, is more like a system of the kind constructed by Aristotle or Spinoza. It is expressed verbally as a set of sentences with a variety of functions, descriptive and prescriptive. The basic relation is that between subsets of premises and subsets of conclusions, that is, the relation of derivability. The relevant notions of derivability may be classed according to rigor, with logical and mathematical deducations topping the list, but also according to how much is implicitly taken for granted. An exposition of an ecosophy must necessarily be only moderately precise considering the vast scope of relevant ecological and normative (social, political, ethical) material. At the moment, ecosophy might profitably use models of systems, rough approximations of global systematizations. It is the global character, not preciseness in detail, which distinguishes an ecosophy. It articulates and integrates the efforts of an ideal ecological team, a team comprising not only scientists from an extreme variety of disciplines, but also students of politics and active policy-makers. Under the name of ecologism, various deviations from the deep movement have been championed-primarily with a one-sided stress on pollution and resource depletion, but also with a neglect of the great differences between underand over-developed countries in favor of a vague global approach. The global approach is essential, but regional differences must largely determine policies in the coming years. 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DATE DOWNLOADED: Sun Aug 9 01:23:42 2020 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 20th ed. Mark Sagoff, At the Shrine of Our Lady of Fatima Or Why Political Questions Are Not All Economic , 23 Ariz. L. Rev. 1283 (1981). ALWD 6th ed. Mark Sagoff, At the Shrine of Our Lady of Fatima Or Why Political Questions Are Not All Economic , 23 Ariz. L. Rev. 1283 (1981). APA 7th ed. Sagoff, M. (1981). At the shrine of our lady of fatima or why political questions are not all economic Arizona Law Review, 23(4), 1283-1298. Chicago 7th ed. Mark Sagoff, “At the Shrine of Our Lady of Fatima Or Why Political Questions Are Not All Economic ,” Arizona Law Review 23, no. 4 (1981): 1283-1298 McGill Guide 9th ed. Mark Sagoff, “At the Shrine of Our Lady of Fatima Or Why Political Questions Are Not All Economic ” (1981) 23:4 Ariz L Rev 1283. MLA 8th ed. Sagoff, Mark. “At the Shrine of Our Lady of Fatima Or Why Political Questions Are Not All Economic .” Arizona Law Review, vol. 23, no. 4, 1981, p. 1283-1298. HeinOnline. OSCOLA 4th ed. Mark Sagoff, ‘At the Shrine of Our Lady of Fatima Or Why Political Questions Are Not All Economic ‘ (1981) 23 Ariz L Rev 1283 — Your use of this HeinOnline PDF indicates your acceptance of HeinOnline’s Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License — The search text of this PDF is generated from uncorrected OCR text. — To obtain permission to use this article beyond the scope of your license, please use: Copyright Information AT THE SHRINE OF OUR LADY OF FATIMA or WHY POLITICAL QUESTIONS ARE NOT ALL ECONOMIC Mark Sagoff* Lewiston, New York, a well-to-do community near Buffalo, is the site of the Lake Ontario Ordinance Works, where years ago the federal government disposed of the residues of the Manhattan Project. These radioactive wastes are buried but are not forgotten by the residents who say that when the wind is southerly, radon gas blows through the town. Several parents at a recent Lewiston conference I attended described their terror on learning that cases of leukemia had been found among area children. They feared for their own lives as well. On the other side of the table, officials from New York State and from local corpora- tions replied that these fears were ungrounded. People who smoke, they said, take greater risks than people who live close to waste disposal sites. One speaker talked in terms of “rational methodologies of deci- sionmaking.” This aggravated the parents’ rage and frustration. The speaker suggested that the townspeople, were they to make their decision in a free market and if they knew the scientific facts, would choose to live near the hazardous waste facility. He told me later they were irrational—“neurotic”-because they refused to recog- nize or to act upon their own interests. The residents of Lewiston were unimpressed with his analysis of their “willingness to pay” to avoid this risk or that. They did not see what risk-benefit analysis had to do with the issues they raised. If you take the Military Highway (as I did) from Buffalo to Lewis- * Research Associate, Center for Philosophy and Public Policy and Center for Environ- mental and Estuarine Studies (Horn Point Laboratories), University of Maryland. A.B. 1963, Harvard College; Ph.D. 1970, University of Rochester. Work on this Article was supported by the National Science Foundation and National Endowment for the Humanities, Grant No. OSS 8018096. Views expressed are the author’s, not necessarily those of the NSF or NEH. The author is grateful for criticism received from colleagues, especially David Luban. ARIZONA LAW REVIEW ton, you will pass through a formidable wasteland. Landfills stretch in all directions and enormous trucks-tiny in that landscape-inces- santly deposit sludge which great bulldozers then push into the ground. These machines are the only signs of life, for in the miasma that hangs in the air, no birds, not even scavengers, are seen. Along colossal power lines which criss-cross this dismal land, the dynamos at Niagra send electric power south, where factories have fled, leaving their re- mains to decay. To drive along this road is to feel, oddly, the mystery and awe one experiences in the presence of so much power and decadence. Henry Adams had a similar response to the dynamos on display at the Paris Exposition of 1900. To him, “the dynamo became a symbol of infinity.” ‘ To Adams, the dynamo functioned as the modem equivalent of the Virgin, that is, the center and focus of power. “Before the end, one began to pray to it; inherited instinct taught the natural expression of men before silent and infinite force.” ‘ Adams asks in his essay “The Dynamo and the Virgin” how the products of modern in- dustrial civilization will compare with those of the religious culture of the Middle Ages. If he could see the landfills and hazardous waste facilities bordering the power stations and honeymoon hotels of Niagra Falls he would know the answer. He would understand what happens when efficiency replaces infinity as the central conception of value. The dynamos at Niagra will not produce another Mont-Saint-Michel. “All the steam in the world,” Adams wrote, “could not, like the Virgin, build Chartres.” 3 At the Shrine of Our Lady of Fatima, on a plateau north of the Military Highway, a larger than life sculpture of Mary looks into the chemical air. The original of this shrine stands in central Portugal where in May, 1917, three children said they saw a Lady, brighter than the sun, raised on a cloud in an evergreen tree. 4 Five months later, on a wet and chilly October day, the Lady again appeared, this time before a large crowd. Some who were skeptical did not see the miracle. Others in the crowd reported, however, that “the sun appeared and seemed to tremble, rotate violently and fall, dancing over the heads of the throng….”‘ The Shrine was empty when I visited it. The cult of Our Lady of Fatima, I imagine, has only a few devotees. The cult of Pareto Op- timality, however, has many. Where some people see only environ- 1. H. ADAMS, THE EDUCATION OF HENRY ADAMS 380 (2d ed. 1970). 2. Id 3. Id at 388. 4. For an account, see generally J. PELLETIER, THE SUN DANCED AT FATIMA (1951). 5. 5 NEW CATHOLIC ENCYCLOPEDIA 856 (1967). [Vol. 23 POLITICAL QUESTIONS AND ECONOMICS mental devastation, its devotees perceive efficiency, utility, and the maximization of wealth. They see the satisfaction of wants. They envi- sion the good life. As I looked over the smudged and ruined terrain I tried to share that vision. I hoped that Our Lady of Fatima, worker of miracles, might serve, at least for the moment, as the Patroness of cost- benefit analysis. I thought of all the wants and needs that are satisfied in a landscape of honeymoon cottages, commercial strips, and dumps for hazardous waste. I saw the miracle of efficiency. The prospect, however, looked only darker in that light. Political and Economic Decisionmaking This essay concerns the economic decisions we make about the environment. It also concerns our political decisions about the envi- ronment. Some people have suggested that ideally these should be the same, that all environmental problems are problems in distribution. According to this view, there is an environmental problem only when some resource is not allocated in equitable and efficient ways. 6 This approach to environmental policy is pitched entirely at the level of the consumer. It is his or her values that count, and the meas- ure of these values is the individual’s willingness to pay. The problem of justice or fairness in society becomes, then, the problem of distribut- ing goods and services so that more people get more of what they want to buy: a condo on the beach, a snowmobile for the mountains, a tank full of gas, a day of labor. The only values we have, according to this view, are those that a market can price. 7 How much do you value open space, a stand of trees, an “un- spoiled” landscape? Fifty dollars? A hundred? A thousand? This is one way to measure value. You could compare the amount consumers would pay for a townhouse or coal or a landfill to the amount they would pay to preserve an area in its “natural” state. If users would pay more for the land with the house, the coal mine, or the landfill, then without-less construction and other costs of development-than the efficient thing to do is to improve the land and thus increase its value. That is why we have so many tract developments, pizza stands, and gas stations. How much did you spend last year to preserve open space? How much for pizza and gas? “In principle, the ultimate measure of 6. See, e.g., W. BAXTER, PEOPLE OR PENGUINS: THE CASE FOR OPTIMAL POLLUTION ch. 1 (1974). Seegenerall, A. FREEMAN, R. HAVEMAN, A. KNEESE, THE ECONOMICS OF ENVIRONMEN- TAL POLICY (1973) [hereinafter A. FREEMAN]. 7. Posner makes this point well in discussing wealth maximization as an ethical concept. “The only kind of preference that counts in a system of wealth-maximization,” he writes, “is… one that is backed up by money-in other words, that is registered in a market.” Posner, Utilitari- anism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103, 119 (1979). 1981] A.RIZONA LAW REVIEW environmental quality,” as one basic text assures us, “is the value peo- ple place on these. ..services or their willingness to pay.” s Willingness to pay: what is wrong with that? The rub is this: not all of us think of ourselves simply as consumers. Many of us regard ourselves as citizens as well. We act as consumers to get what we want for ourselves. We act as citizens to achieve what we think is right or best for the community. The question arises, then, whether what we want for ourselves individually as consumers is consistent with the goals we would set for ourselves collectively as citizens. Would I vote for the sort of things I shop for? Are my preferences as a consumer consistent with my judgments as a citizen? They are not. I am schizophrenic. Last year, I fixed a couple of tickets and was happy to do so since I saved fifty dollars. Yet, at elec- tion time, I helped to vote the corrupt judge out of office. I speed on the highway; yet I want the police to enforce laws against speeding. I used to buy mixers in returnable bottles-but who can bother to return them? I buy only disposables now, but to soothe my conscience, I urge my state senator to outlaw one-way containers. I love my car; I hate the bus. Yet I vote for candidates who promise to tax gasoline to pay for public transportation. And of course I applaud the Endangered Species Act, although I have no earthly use for the Colorado squawfish or the Indiana bat. I support almost any political cause that I think will defeat my consumer interests. This is because I have contempt for- although I act upon-those interests. I have an “Ecology Now” sticker on a car that leaks oil everywhere it’s parked. The distinction between consumer and citizen preferences has long vexed the theory of public finance. Should the public economy serve the same goals as the household economy? May it serve, instead, goals emerging from our association as citizens? The question asks if we may collectively strive for and achieve only those items we individually compete for and consume. Should we aspire, instead, to public goals we may legislate as a nation? The problem, insofar as it concerns public finance, is stated as fol- lows by R.A. Musgrave, who reports a conversation he had with Ger- hard Colin: He [Colin] holds that the individual voter dealing with political is- sues has a frame of reference quite distinct from that which underlies his allocation of income as a consumer. In the latter situation the voter acts as a private individual determined by self-interest and deals with his personal wants; in the former, he acts as a political being guided by his image of a good society. The two, Com holds, 8. A. FREEMAN, supra note 6, at 23. (Vol. 23 POLITICAL QUESTIONS AND ECONOMICS are different things. 9 Are these two different things? Stephen Marglin suggests that they are. He writes: the preferences that govern one’s unilateral market actions no longer govern his actions when the form of reference is shifted from the market to the political arena. The Economic Man and the Citizen are for all intents and purposes two different individuals. It is not a question, therefore, of rejecting individual. ..preference maps; it is, rather, that market and political preference maps are inconsistent. 0 Marglin observes that if this were true, social choices optimal under one set of preferences would not be optimal under another. What, then, is the meaning of “optimality?” He notices that if we take a person’s true preferences to be those expressed in the market, we may neglect or reject the preferences that person reveals in advocating a political cause or position. “One might argue on welfare grounds,” Marglin speculates, “for authoritarian rejection of individuals’ politi- cally revealed preferences in favor of their market revealed preferences!” ” Cost-Benft Analysis vs. Regulation On February 19, 1981, President Reagan published Executive Or- der 12,29112 requiring all administrative agencies and departments to support every new major regulation with a cost-benefit analysis estab- lishing that the benefits of the regulation to society outweigh its costs. The order directs the Office of Management and Budget (OMB) to re- view every such regulation on the basis of the adequacy of the cost- benefit analysis supporting it. This is a departure from tradition. His- torically, regulations have been reviewed not by OMB but by the courts on the basis of the relation of the regulation to authorizing legislation, not to cost-benefit analysis. A month earlier, in January, 1981, the Supreme Court heard law- yers for the American Textile Manufacturers Institute argue against a proposed Occupational Safety and Health Administration (OSHA) reg- ulation which would have severely restricted the acceptable levels of cotton dust in textile plants.1 3 The lawyers for industry argued that the 9. R. MusGRAVE, THE THEORY OF PUBLIC FINANCE 87-88 (1959). 10. Marglin, The Social Rate of Discount and the Optimal Rate ofInvestment, 77 Q.J. ECON. 95, 98 (1963).11. Id 12. 46 Fed. Reg. 13,193 (1981). The order specifies that the cost-benefit requirement shall apply “to the extent permitted by law.” 13. American Fed’n of Labor, etc. v. Marshall, 617 F.2d 636 (D.C. Cir. 1979), cert. granted sub nom. American Textile Mfrs. Inst., Inc. v. Marshall, 49 U.S.L.W. 3208 (1981). ARIZONA LAW REVIEW benefits of the regulation would not equal the costs.’ 4 The lawyers for the government contended that the law required the tough standard., 5 OSHA, acting consistently with Executive Order 12,291, asked the Court not to decide the cotton dust case in order to give the agency time to complete the cost-benefit analysis required by the textile indus- try. 6 The Court declined to accept OSHA’s request and handed down its opinion in American Textile Manufacturers v. Donovan on June 17, 1981.17 The Supreme Court, in a 5-3 decision, found that the actions of regulatory agencies which conform to the OSHA law need not be sup- ported by cost-benefit analysis.’ In addition, the Court asserted that Congress, in writing a statute, rather than the agencies in applying it, has the primary responsibility for balancing benefits and costs.’ 9 The Court said: When Congress passed the Occupational Health and Safety Act in 1970, it chose to place pre-eminent value on assuring employees a safe and healthful working environment, limited only by the feasibil- ity of achieving such an environment. We must measure the validity of the Secretary’s actions against the requirements of that Act. 20 The opinion upheld the finding of the District of Columbia Court of Appeals that “Congress itself struck the balance between costs and ben- efits in the mandate to the agency.” 21 The Appeals Court opinion in American Textile Manufacturers v. Donovan supports the principle that legislatures are not necessarily bound to a particular conception of regulatory policy. Agencies that apply the law therefore may not need to justify on cost-benefit grounds the standards they set. These standards may conflict with the goal of efficiency and still express our political will as a nation. That is, they may reflect not the personal choices of self-interested individuals, but the collective judgments we make on historical, cultural, aesthetic, moral, and ideological grounds. 22 14. 49 U.S.L.W. 3523-24. 15. Id 16. Id 17. American Textile Mfrs. Inst., Inc. v. Donovan, 49 U.S.L.W. 4720 (1981). 18. Id at 4724-29. 19. Id at 4726-29. 20. Id at 4733-34. 21. Id at 4726-29. 22. To reject cost-benefit analysis as a basis for policymaking is not necessarily to reject cost- effectiveness analysis which is an altogether different thing. For this difference, see Baram, Cost- Benoft Analysis: An Inadequate Basisfor Health, Safety, and Environmental Regulatory Decision- making, 8 ECOLOGY L. Q. 473 (1980). “Cost-beneft analysis. ..is used by the decisionmaker to establish societal goals as well as the means for achieving these goals, whereas cost-effecdieness analysis only compares alternative means for achieving ‘given’ goals.” Id at 478 (footnote omit- ted). In practice, regulatory uses of cost-benefit analysis stifle and obstruct the achievement of legislated health, safety, and environmental goals. Id at 473. Further, to the extent that economic [Vol. 23 POLITICAL QUESTIONS AND ECONOMICS The appeal of the Reagan Administration to cost-benefit analysis, however, may arise more from political than economic considerations. The intention, seen in the most favorable light, may not be to replace political or ideological goals with economic ones, but to make eco- nomic goals more apparent in regulation. This is not to say that Con- gress should function to reveal a collective willingness-to-pay just as markets reveal an individual willingness-to-pay. It is to suggest that Congress should do more to balance economic with ideological, aes- thetic, and moral goals. To think that environmental or worker safety policy can be based exclusively on aspiration for a “natural” and “safe” world is as foolish as to hold that environmental law can be reduced to cost-benefit accounting. The more we move to one extreme, as I found in Lewiston, the more likely we are to hear from the other. Substituting Efficiency for Safety The labor unions won an important political victory when Con- gress passed the Occupational Safety and Health Act of 1970.23 That Act, among other things, severely restricts worker exposure to toxic substances. It instructs the Secretary of Labor to set “the standard which most adequately assures, to the extent feasible. ..that no em- ployee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard. ..for the period of his working life.” 4 Pursuant to this law, the Secretary of Labor in 1977 reduced from ten to one part per million (ppm) the permissable ambient exposure level for benzene, a carcinongen for which no safe threshold is known. The American Petroleum Institute thereupon challenged the new stan- dard in court. 25 It argued, with much evidence in its favor, that the benefits (to workers) of the one ppm standard did not equal the costs (to industry). 26 The standard therefore did not appear to be a rational response to a market failure in that it did not strike an efficient balance between the interests of workers in safety and the interests of industry and consumers in keeping prices down. The Secretary of Labor defended the tough safety standard on the factors are permissible considerations under enabling statutes, agencies should engage in cost- effectiveness analysis, which aids in determining the least costly means to designated goals, rather than cost-benefit analysis, which improperly determines regulatory ends as well as means. Id at 474. 23. Pub. L. No. 91-596, 84 Stat. 1596 (1970) (codified at 29 U.S.C. §§ 651-678 (1970)). 24. 29 U.S.C. § 655(b)(5) (1970). 25. American Petroleum Inst. v. Marshall, 581 F.2d 493 (5th Cir. 1978), at’d, 448 U.S. 607 (1980). 26. 581 F.2d at 501-05. 1981] ARIZONA LAW REVIEW ground that the law demanded it.27 An efficient standard might have required safety until it cost industry more to prevent a risk than it cost workers to accept it. Had Congress adopted this vision of public pol- icy-one which can be found in many economics texts 28-it would have treated workers not as ends-in-themselves but as means for the production of overall utility. This, as the Secretary saw it, was what Congress refused to do. 29 The United States Court of Appeals for the Fifth Circuit agreed with the American Petroleum Institute and invalidated the one ppm benzene standard. 30 On July 2, 1980, the Supreme Court affirmed the decision in American Petroleum Institute v. Marshall 3′ and remanded the benzene standard back to OSHA for revision. The narrowly based Supreme Court decision was divided over the role economic considera- tions should play in judicial review. Justice Marshall, joined in dissent by three other justices, argued that the Court had undone on the basis of its own theory of regulatory policy an act of Congress inconsistent with that theory. 32 He concluded that the plurality decision of the Court “requires the American worker to return to the political arena to win a victory that he won before in 1970.” 33 The decision of the Supreme Court is important not because of its consequences, which are likely to be minimal, but because of the fasci- nating questions it raises. Shall the courts uphold only those political decisions that can be defended on economic grounds? Shall we allow democracy only to the extent that it can be construed’either as a ra- tional response to a market failure or as an attempt to redistribute wealth? Should the courts say that a regulation is not “feasible” or “reasonable”-terms that occur in the OSHA law 34–unless it is sup- ported by a cost-benefit analysis? The problem is this: An efficiency criterion, as it is used to evalu- ate public policy, assumes that the goals of our society are contained in the preferences individuals reveal or would reveal in markets. Such an approach may appear attractive, even just, because it treats everyone as equal, at least theoretically, by according to each person’s preferences the same respect and concern. To treat a person with respect, however, is also to listen and to respond intelligently to his or her views and 27. Id at 501. 28. See, e.g., R. POSNER, ECONOMic ANALYSIS OF LAW I & 11 (1973). In G. CALABRESI, THE COSTS OF AccIDENTSfassim (1970), the author argues that accident law balances two goals, “effi- ciency” and “equality’ or “justice.” 29. American Petroleum Inst. v. Marshall, 581 F.2d 493, 503-05 (5th Cir. 1978). 30. Id at 505. 31. 448 U.S. 607 (1980). 32. Id at 719. 33. Id 34. 29 U.S.C. §§ 655(b)(5) & 652(8) (1975). [Vol. 23 POLITICAL QUESTIONS AND ECONOMICS opinions. This is not the same thing as to ask how much he or she is willing to pay for them. The cost-benefit analyst does not ask econo- mists how much they are willing to pay for what they believe, that is, that the workplace and the environment should be made efficient. Why, then, does the analyst ask workers, environmentalists, and others how much they are willing to pay for what they believe is right? Are economists the only ones who can back their ideas with reasons while the rest of us can only pay a price? The cost-benefit approach treats people as of equal worth because it treats them as of no worth, but only as places or channels at which willingness to pay is found. 5 Liberty. Ancient and Modern When efficiency is the criterion of public safety and health, one tends to conceive of social relations on the model of a market, ignoring competing visions of what we as a society should be like. Yet it is obvi- ous that there are competing conceptions of what we should be as a society. There are some who believe on principle that worker safety and environmental quality ought to be protected only insofar as the benefits of protection balance the costs. On the other hand, people ar- gue-also on principle-that neither worker safety nor environmental quality should be treated merely as a commodity to be traded at the margin for other commodities, but rather each should be valued for its own sake. The conflict between these two principles is logical or moral, to be resolved by argument or debate. The question whether cost-bene- fit analysis should play a decisive role in policy-making is not to be decided by cost-benefit analysis. A contradiction between principles- between contending visions of the good society-cannot be settled by asking how much partisans are willing to pay for their beliefs. The role of the legislator, the political role, may be more important to the individual than the role of consumer. The person, in other words, is not to be treated merely as a bundle of preferences to be jug- gled in cost-benefit analyses. The individual is to be respected as an advocate of ideas which are to be judged according to the reasons for them. If health and environmental statutes reflect a vision of society as something other than a market by requiring protections beyond what are efficient, then this may express not legislative ineptitude but legisla- tive responsiveness to public values. To deny this vision because it is economically inefficient is simply to replace it with another vision. It is to insist that the ideas of the citizen be sacrificed to the psychology of the consumer. 35. For a similar argument against utilitarianism, see Hart, Between Utility and Rights,. 79 COLUM. L. REv. 828, 829-31 (1979). ARIZONA LAW REVIEW We hear on all sides that government is routinized, mechanical, entranched, and bureaucratized; the jargon alone is enough to dissuade the most mettlesome meddler. Who can make a difference? It is plain that for many of us the idea of a national political community has an abstract and suppositious quality. We have only our private concep- tions of the good, if no way exists to arrive at a public one. This is only to note the continuation, in our time, of the trend Benjamin Constant described in the essay De La Liberte des Anciens Comparee a Celle des Modernes. 36 Constant observes that the modem world, as opposed to the ancient, emphasizes civil over political liberties, the rights of pri- vacy and property over those of community and participation. “Lost in the multitude,” Constant writes, “the individual rarely perceives the influence that he exercises,” and, therefore, must be content with “the peaceful enjoyment of private independence. ’37 The individual asks only to be protected by laws common to all in his pursuit of his own self-interest. The citizen has been replaced by the consumer; the tradi- tion of Rousseau has been supplanted by that of Locke and Mill. Nowhere are the rights of the modems, particularly the rights of privacy and property, less helpful than in the area of the natural envi- ronment. Here the values we wish to protect-cultural, historical, aes- thetic, and moral-are public values. They depend not so much upon what each person wants individually as upon what he or she thinks is right for the community. We refuse to regard worker health and safety as commodities; we regulate hazards as a matter of right. Likewise, we refuse to treat environmental resources simply as public goods in the economist’s sense. Instead, we prevent significant deterioration of air quality not only as a matter of individual self-interest but also as a matter of collective self-respect. How shall we balance efficiency against moral, cultural, and aesthetic values in policy for the workplace and the environment? No better way has been devised to do this than by legislative debate ending in a vote. This is very different from a cost-benefit analysis terminating in a bottom line. Values are Not Subjective It is the characteristic of cost-benefit analysis that it treats all value judgments other than those made on its behalf as nothing but state- ments of preference, attitude, or emotion, insofar as they are value judgments. The cost-benefit analyst regards as true the judgment that we should maximize efficiency or wealth. The analyst believes that this 36. B. CONSTANT, DE LA LIBERTE DES ANCIENS COMPAREE A CELLE DES MODERNES (1819). 37. Oeuvres Politiques de Benjamin Constant, 269 (C. Louandre, ed. 1874), quoted in S. Wo- LIN, POLITICS AND VISION 281 (1960). [Vol. 23 POLITICAL QUESTIONS AND ECONOMICS view can be backed by reasons, 38 but does not regard it as a preference or want for which he or she must be willing to pay. The cost-benefit analyst tends to treat all other normative views and recommendations as if they were nothing but subjective reports of mental states. The analyst supposes in all such cases that “this is right” and “this is what we ought to do” are equivalent to “I want this” and “this is what I prefer.” Value judgments are beyond criticism if, indeed, they are nothing but expressions of personal preference; they are incorrigible since every person is in the best position to know what he or she wants. All valuation, according to this approach, happens inforo interno; de- bate inforopublico has no point. With this approach, the reasons that people give for their views do not count; what does count is how much they are willing to pay to satisfy their wants. Those who are willing to pay the most, for all intents and purposes, have the right view; theirs is the more informed opinion, the better aesthetic judgment, and the deeper moral insight. The assumption that valuation is subjective, that judgments of good and evil are nothing but expressions of desire and aversion, is not unique to economic theory. 39 There are psychotherapists–Carl Rogers is an example-who likewise deny the objectivity or cognitivity of valu- ation. 4″ For Rogers, there is only one criterion of worth: it lies in “the subjective world of the individual. Only he knows it fully.” 41 The therapist shows his or her client that a “value system is not necessarily something imposed from without, but is something experienced. 42 Therapy succeeds when the client “perceives himself in such a way that no self-experience can be discriminated as more or less worthy of posi- tive self-regard than any other. …”4 The client then “tends to place the basis of standards within himself, recognizing that the ‘goodness’ or 38. There are arguments that whatever reasons may be given are not good. See generally Dworkin, Why Efficiency? 8 HOFSTRA L. REV. 563 (1980); Dworkin, Is Wealth a Value? 9 J. LE- GAL STUD. 191 (1980); Kennedy, Cost-Benfit Analysis of Entitlement Problems: A Critique, 33 STAN. L. REv. 387 (1980); Rizzo, The Mirage ofEfficiency, 8 HOFSTRA L. REV. 641 (1980); Sagoff, Economic Theory and Environmental Law, 79 MICH. L. REV. 1393 (1981). 39. This is the emotive theory of value. For the classic statement, see C. STEVENSON, ETHICS AND LANGUAGE chs. I & 2 (144). For criticism, see Blanshard, The New Subjectivism in Ethics, 9 PHILOSOPHY & PHENOMENOLOGICAL RESEARCH 504 (1949). For a statement of the related inter- est theory of value, see generally R. PERRY, GENERAL THEORY OF VALUE (1926); E. WEs- TERMARCK, ETHICAL RELATIVITY chs. 3-5 (1932). For criticisms of subjectivism in ethics and a case for the objective theory presupposed here, see generally P. EDWARDS, THE LOGIC OF MORAL DISCOURSE (1955) and W. Ross, THE RIGHT AND THE GOOD (1930). 40. My account is based on C. ROGERS, ON BECOMING A PERSON (1961); C. ROGERS, CLI- ENT CENTERED THERAPY (1965); and Rogers, A Theory of Therapy, Personality, and Interpersonal Relationships, as Developed in the Client Centered Framework, 3 PSYCHOLOGY: A STUDY OF A SCIENCE 184 (1959). For a similar account used as a critique of the lawyer-client relation, see Simon, Homo Psychologicus: Notes on a New Legal Formalism, 32 STAN. L. REV. 487 (1980). 41. Rogers, supra note 40, at 210. 42. C. ROGERS, CLIENT CENTERED THERAPY 150 (1965). 43. Rogers, supra note 40, at 208. ARIZONA LAW REVIEW ‘badness’ of any experience or perceptual object is not something inher- ent in that object, but is a value placed in it by himself.”” Rogers points out that “some clients make strenuous efforts to have the therapist exercise the valuing function, so as to provide them with guides for action.” 45 The therapist, however, “consistently keeps the locus of evaluation with the client.” ’46 As long as the therapist re- fuses to “exercise the valuing function” and as long as he or she prac- tices an “unconditional positive regard” 47 for all the affective states of the client, then the therapist remains neutral among the client’s values or “sensory and visceral experiences.” 48 The role of the therapist is legitimate, Rogers suggests, because of this value neutrality. The thera- pist accepts all felt preferences as valid and imposes none on the client. Economists likewise argue that their role as policy-makers is legiti- mate because they are neutral among competing values in the client society. The political economist, according to James Buchanan, “is or should be ethically neutral: the indicated results are influenced by his own value scale only insofar as this reflects his membership in a larger group. ’49 The economist might be most confident of the impartiality of his or her policy recommendations if he or she could derive them for- mally or mathematically from individual preferences. If theoretical difficulties make such a social welfare function impossible, 50 however, the next best thing, to preserve neutrality, is to let markets function to transform individual preference orderings into a collective ordering of social states. The analyst is able then to base policy on preferences that exist in society and are not necessarily his own. Economists have used this impartial approach to offer solutions to many significant social problems, for example, the controversy over abortion. An economist argues that “there is an optimal number of abortions, just as there is an optimal level of pollution, or purity …. Those who oppose abortion could eliminate it entirely, if their intensity of feeling were so strong as to lead to payments that were greater at the margin than the price anyone would pay to have an abortion.” ’51 Like- wise, economists, in order to determine whether the war in Vietnam was justified, have estimated the willingness to pay of those who demonstrated against it.52 Following the same line of reasoning, it 44. C. ROGERS, supra note 42, at 139. 45. Id at 150. 46. Id 47. Rogers, supra note 40, at 208. 48. Id at 523-24. 49. Buchanan, Posiive Economics, Wepfare Economics, andPoltical Economy 2 J.L. & EcoN, 124, 127 (1959). 50. K. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES I-V (2d ed. 1963). 51. H. MACAULAY & B. YANDLE, ENVIRONMENTAL USE AND THE MARKET 120-21 (1978). 52. See generally Cicchetti, Freeman, Haveman, & Knetsch, On the Economics ofMass Dem- [Vol. 23 POLITICAL QUESTIONS AND ECONOMICS should be possible to decide whether Creationism should be taught in the public schools, whether black and white people should be segre- gated, whether the death penalty should be enforced, and whether the square root of six is three. All of these questions arguably depend upon how much people are willing to pay for their subjective preferences or wants. This is the beauty of cost-benefit analysis: no matter how rele- vant or irrelevant, wise or stupid, informed or uninformed, responsible or silly, defensible or indefensible wants may be, the analyst is able to derive a policy from them-a policy which is legitimate because, in theory, it treats all of these preferences as equally valid and good. Preference or Principle? In contrast, consider a Kantian conception of value. 53 The indi- vidual, for Kant, is a judge of values, not a mere haver of wants, and the individual judges not for himself or herself merely, but as a mem- ber of a relevant community or group. The central idea in a Kantian approach to ethics is that some values are more reasonable than others and therefore have a better claim upon the assent of members of the community as such. 4 The world of obligation, like the world of math- ematics or the world of empirical fact, is public not private, and objec- tive standards of argument and criticism apply. Kant recognized that values, like beliefs, are subjective states of mind which have an objec- tive content as well. Therefore, both values and beliefs are either cor- rect or mistaken. A value judgment is like an empirical or theoretical judgment in that it claims to be true not merely to be felt. We have, then, two approaches to public policy before us. The first, the approach associated with normative versions of welfare eco- nomics, asserts that the only policy recommendation that can or need be defended on objective grounds is efficiency or wealth-maximization. The Kantian approach, on the other hand, assumes that many policy recommendations may be justified or refuted on objective grounds. It would concede that the approach of welfare economics applies ade- quately to some questions, for example, those which ordinary consumer markets typically settle. How many yo-yos should be produced as compared to how may frisbees? Shall pens have black ink or blue? Matters such as these are so trivial it is plain that markets should han- onstrations: A Case Study of the November 1969 March on Washington, 61 AM. ECON. REv. 719 (1971). 53. I. KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS (1969). I follow the interpre- tation of Kantian ethics of W SELLARS, SCIENCE AND METAPHYSICS ch. vii (1968) and Sellars, On Reasoning About Values, 17 AM. PHIL. Q. 81 (1980). 54. See A. MACINTYRE, AFTER VIRTUE 22 (1981). ARIZONA LAW REVIEW die them. It does not follow, however, that we should adopt a market or quasi-market approach to every public question. A market or quasi-market approach to arithmetic, for example, is plainly inadequate. No matter how much people are willing to pay, three will never be the square root of six. Similarly, segregation is a national curse and the fact that we are willing to pay for it does not make it better, but only us worse. The case for abortion must stand on the merits; it cannot be priced at the margin. Our failures to make the right decisions in these matters are failures in arithmetic, failures in wisdom, failures in taste, failures in morality-but not market failures. There are no relevant markets which have failed. What separates these questions from those for which markets are appropriate is that they involve matters of knowledge, wisdom, moral- ity, and taste that admit of better or worse, right or wrong, true or false, and not mere economic optimality. Surely environmental questions- the protection of wilderness, habitats, water, land, and air as well as policy toward environmental safety and health-involve moral and aesthetic principles and not just economic ones. This is consistent, of course, with cost-effectiveness and with a sensible recognition of eco- nomic constraints. The neutrality of the economist is legitimate if private preferences or subjective wants are the only values in question. A person should be left free to choose the color of his or her necktie or necklace, but we cannot justify a theory of public policy or private therapy on that basis. If the patient seeks moral advice or tries to find reasons to justify a choice, the therapist, according to Rogers’ model, would remind him or her to trust his visceral and sensory experiences. The result of this is to deny the individual status as a cognitive being capable of responding intelligently to reasons; it reduces him or her to a bundle of affective states. What Rogers’ therapist does to the patient the cost-benefit ana- lyst does to society as a whole. The analyst is neutral among our “val- ues’-having first imposed a theory of what value is. This is a theory that is impartial among values and for that reason fails to treat the persons who have them with respect or concern. It does not treat them even as persons but only as locations at which wants may be found. The neutrality of economics is not a basis for its legitimacy. We recog- nize it as an indifference toward value-an indifference so deep, so studied, and so assured that at first one hesitates to call it by its right name. The Citizen as Joseph K. The residents of Lewiston at the conference I attended demanded (Vol. 23 POLITICAL QUESTIONS AND ECONOMICS to know the truth about the dangers that confronted them and the rea- sons for those dangers. They wanted to be convinced that the sacrifice asked of them was legitimate even if it served interests other than their own. One official from a large chemical company dumping wastes in the area told them in reply that corporations were people and that peo- ple could talk to people about their feelings, interests, and needs. This sent a shiver through the audience. Like Joseph K. in The Trial, 55 the residents of Lewiston asked for an explanation, justice, and truth, and they were told that their wants would be taken care of. They de- manded to know the reasons for what was continually happening to them. They were given a personalized response instead. This response, that corporations are “just people serving people,” is consistent with a particular view of power. This is the view that identifies power with the ability to get what one wants as an individual, that is, to satisfy one’s personal preferences. When people in official positions in corporations or in the government put aside their personal interests, it would follow that they put aside their power as well. Their neutrality then justifies them in directing the resources of society in ways they determine to be best. This managerial role serves not their own interests but those of their clients. Cost-benefit analysis may be seen as a pervasive form of this paternalism. Behind this paternalism, as William Simon observes of the lawyer-client relationship, lies a the- ory of value that tends to personalize power. “It resists understanding power as a product of class, property, or institutions and collapses power into the personal needs and dispositions of the individuals who command and obey.” 56 Once the economist, the therapist, the lawyer, or the manager abjures his own interests and acts wholly on behalf of client individuals, he appears to have no power of his own and thus justifiably manipulates and controls everything. “From this perspec- tive it becomes difficult to distinguish the powerful from the powerless. In every case, both the exercise of power and submission to it are por- trayed as a matter of personal accommodation and adjustment.” 57 The key to the personal interest or emotive theory of value, as one commentator has rightly said, “is the fact that emotivism entails the obliteration of any genuine distinction between manipulative and non- manipulative social relations.” 58 The reason is that once the affective self is made the source of all value, the public self cannot participate in the exercise of power. As Philip Reiff remarks, “the public world is 55. F. KAFKA, THE TRIAL (rev. ed. trans. 1957). Simon applies this anology to the lawyer- client relationship. Simon, supra note 40, at 524. 56. Simon, supra note 40, at 495. 57. Id 58. A. MACINTYRE, supra note 54, at 22. ARIZONA LAW REVIEW2 constituted as one vast stranger who appears at inconvenient times and makes demands viewed as purely external and therefore with no power to elicit a moral response.” 59 There is no way to distinguish the legiti- mate authority that public values and public law create from tyranny. 60 “At the rate of progress since 1900,” Henry Adams speculates in his Education, “every American who lived into the year 2000 would know how to control unlimited power. “61 Adams thought that the Dynamo would organize and release as much energy as the Virgin. Yet in the 1980s, the citizens of Lewiston, surrounded by dynamos, high tension lines, and nuclear wastes, are powerless. They do not know how to criticize power, resist power, or justify power-for to do so de- pends on making distinctions between good and evil, right and wrong, innocence and guilt, justice and injustice, truth and lies. These distinc- tions cannot be made out and have no significance within an emotive or psychological theory of value. To adopt this theory is to imagine society as a market in which individuals trade voluntarily and without coercion. No individual, no belief, no faith has authority over them. To have power to act as a nation we must be able to act, at least at times, on a public philosophy, conviction, or faith. We cannot abandon the moral function of public law. The antinomianism of cost-benefit analysis is not enough. 59. P. REIFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD 52 (1966). 60. That public law regimes inevitably lead to tyranny seems to be the conclusion of H. ARENDT, THE HUMAN CONDITION (1958); K. POPPER, THE OPEN SOCIETY AND ITS ENEMIES (1966); L. STRAUSS, NATURAL RIGHT AND HISTORY (1953). For an important criticism of this conclusion in these authors, see generally Holmes, Arisippus In and Out of Athens, 73 AM. POL. Sci. REV. 113 (1979). 61. H. ADAMS, supra note I, at 476. [Vol. 23




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