the plan for the future

Revolutionary Ideas: An Introduction to Legal and Political Philosophy


2. Happiness and Utility

2.1. Introduction to happiness and utility

In this series of segments, we'll consider one family of answers to the question, why should we have a state? This set of answers suggest that the state is either useful or essential for bringing about various good outcomes, in particular for improving the welfare or happiness of those people living under the state. This is a familiar rationale for the state. Consider, for example, the United States' Declaration of Independence, which says:

We hold these truths to be self-evident, that all men are created equal, that they're endowed by their creator with certain unalienable rights. That among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organising its powers in such form, as to them shall seem most likely, and this is the relevant bit, to affect their safety and happiness.

The preamble to the constitution for South Korea refers to, among other things, the role of the government being to provide for the fullest development of individual capabilities in all fields, including political, economic, social and cultural life by further strengthening the basic free and democratic order conducive to private initiative and public harmony, and to elevate the quality of life for all citizens and contribute to lasting world peace and the common prosperity of mankind and thereby to ensure security, liberty and happiness for ourselves and our posterity forever.

South African constitution
This is another example of a constitution with a different tradition from a very different legal system, but similarly identifying promoting happiness or welfare as one of the roles for the state. The constitution of South Africa sets out one of the purposes of government as being to improve the quality of life of all citizens and free the potential of each person. There are many more such examples all around the world. These are official state documents that set out this purpose. Additionally, philosophers have highlighted the role that the state can play in improving our lives from a number of different vantage points.

The upcoming segments cover a number of these different rationales, all focusing on happiness or what some people call utility, which is something more general than happiness. We begin by talking about Thomas Hobbes and the arguments of those who maintain that the state is useful for escaping what's called the state of nature, and for avoiding violence, vengeance and for promoting peace amongst people who live near each other. We'll then discuss John Stuart Mill's harm principle and a view on which the state improves human welfare by preventing us from harming each other, largely through the criminal law.

capabilities approach
Both of these views have somewhat of a negative character, suggesting that we are flawed by our natures and need the state to intervene to prevent us from harming each other. Neither of them suggests much of a role for the state in building good things or working together to improve each other's lives. At least this role is not on the foreground. These views focus on trying to keep us out of each other's way.

A different conception of how the state can improve welfare or happiness focuses on how the state can help us to help each other, and to build and do things together that we might not be able to build or do on our own. We will consider the capabilities approach to promoting human flourishing that has been developed by Amartya Sen and Martha Nussbaum, among others, identifying the role that the state can play in helping all of us to access the material and other kinds of resources that we need to develop our capabilities as human beings.

collective action problems and public goods
Turning to arguments from the world of economics, we will discuss the possible role for the state in helping to solve collective action problems and provide public goods. In a related vein, we'll consider views that maintain that state institutions, and particularly legal institutions are needed in order to support contract law, property law, court law, and criminal law. All of these are suggested to be essential for various forms of economic development, for efficient exchange of goods and services, and for the promotion of socially productive relationships, all of these which contribute to happiness or human welfare.

Finally, we'll consider ways in which state institutions can help to harness the knowledge that we as a community possess, where anyone of us might not know everything, but together we know quite a lot. Arguments of this form are referred to as epistemic arguments for the state. These can focus on promoting general welfare and happiness, just as the others.

Within each of these segments, we'll think about how they answer the question, why should we have a state? That'll be our primary focus. But we'll also want to think about how these particular answers rule out or compete with the others. So, we'll want to see whether we can embrace all of them or whether we have to choose one of them as our rationale for having the state.

A second question we'll consider throughout is how the possibility of disagreement about what is good or what is valuable or what the state should be involved in doing might undermine some of these answers or complicate some of these answers. What happens if we don't all agree in what makes life go well or what constitutes happiness? In that case, it might be difficult to use one of these rationales as the motivation for having the state in a context where not everyone under that state agrees. Finally, a question that will run throughout this discussion and the others is, why should we have the state do this rather than private associations? Is there something special about government filling these roles or could we have this done by various kinds of private arrangements?

2.2. Thomas Hobbes and the state of nature

Thomas Hobbes was born in 1588 and died in 1679. He was an English philosopher best known today for his work on political philosophy, although he also had an influence in a wide range of fields, including what's called philosophy of mind, logic, philosophy of language, metaphysics, mathematics, and even physics. He is probably best known for his 1651 book, Leviathan. All of his main works of philosophy were actually written when he was in his early 50s and later, so he was not one of these prodigies who was writing his best work in his teens and 20s.

Little is known about his mother, but his father was a somewhat disreputable local clergyman. Hobbes came from relatively modest means and spent most of his life working as a tutor and in other capacities for members of the wealthy Cavendish family. This gave him time to think, write, and have access to books and other leading scientists and intellectuals, including Galileo, Descartes, and Francis Bacon.

In part due to civil wars going on in England at the time, he spent the years from 1640 to 1651 living in exile in Paris. This political turmoil in the background was important to the views he developed in Leviathan. His social contract theory of the state has served as the foundation for much of Western political philosophy. He is credited by some as being the founder of modern political philosophy and even political science. He was a materialist, embracing the view that human beings were composed of physical matter and that we obey the same physical laws as other matter, or at least the matter that composes us obeys those laws.

Thomas Hobbes' ideas
He saw much of his work as a scientific study of human beings and their interactions. So, in some ways, he saw himself as a kind of scientist. He developed some of the fundamental tenets of European liberal political thought, including the idea that the state is artificial, rather than natural. It's not just something that exists independent of what we do. It's a creation of humans. The idea that individuals have rights and that these are in some sense inalienable or intrinsic to them. He developed the idea that all men are, in some sense, equal, so this idea of the natural equality of men.

He developed the idea of the importance of the consent of the people as a basis for the foundation of the state. For our purposes, we're interested in the answer he gave to the question, why should we have a state? To answer that question, he asks us to imagine what things would be like without any government at all, what things would be like if we lived in what he calls a state of nature. Some might imagine a state of nature to be a kind of paradise, but that was not Hobbes's view.

Thomas Hobbes' ideas
He was worried in particular about the state of continual fear that we would be in in such a state. We couldn't trust other people not to do violence against us, not to steal our possessions or harm our families. There would be no entity in place to help us arbitrate and peacefully resolve our disputes. As a result, we would not be able to work together and our living together would be marked by constant fear and frequent violence.

Thomas Hobbes' ideas
Hobbes argued that such a dissolute condition of masterless men, without subjection to laws and a coercive power to tie their hands from raping and revenge would make impossible the security upon which comfortable, civilised life depends.

As he put it, there would be no place for industry because the fruit thereof is uncertain. And consequently, no culture of the earth, no navigation, nor use of the commodities that may be imported by sea, no commodious building, no instruments of moving and removing such things as require much force, no knowledge of the face of the Earth, no account of time, no arts, no letters, and which is worst of all, continual fear and danger of violent death.

Thomas Hobbes' ideas
Famously, Hobbes said this would make the life of man being solitary, poor, nasty, brutish, and short. One question we might ask, is Hobbes too pessimistic about what things would be like? He tried to start with plausible views about what human beings are like. He doesn't want to start with the assumption that we are all terrible monsters.

Thomas Hobbes' ideas
He says that in the nature of man we find three principal causes of quarrel. First, competition. Secondly, diffidence. Thirdly, glory. The first maketh men invade for gain, the second for safety, and the third for reputation. The first use violence to make themselves masters of other men's persons, wives, children, and cattle. The second, to defend them. The third, for trifles, as a word, a smile, a different opinion and any other sign or undervalue either direct in their persons or by reflection in their kindred, their friends, their nation, their profession, or their name.

Thomas Hobbes' ideas
So these are supposed to be the kinds of things that are true of us, that make us so that we would live in a state of war if we were living in a state of nature. He notes too that each of us is roughly equal in the faculties of body and mind. This idea isn't that we're all exactly the same, but that somehow no one of us is so much stronger or so much smarter than any other one of us that that person could come to dominate everybody else. There would be a constant fear and even the strongest and smartest would worry that they would not be safe.

Thomas Hobbes' ideas
These facts taken together motivate something like the following argument, which can be found in chapter 13 of the Leviathan. It can be broken out into premises that will lead to a conclusion.

Premise one is that by nature, each of us is roughly equal in the faculties of body and mind. None of us can consistently dominate the others through force or wit. Premise two is that in each of our natures, there are several desires: (A) desires for things, (B) desires for safety and (C) desires for social standing. Premise three is that if there are conditions of natural equality, and human beings posses the above desires, and there is no external checking force, then there will be a state of war where "where every man is enemy to every man." Premise four is that a state of nature is a condition in which there is no external checking force, such as common power.

Thomas Hobbes' ideas
From these premises, we get this conclusion. If there is a state of nature, there will be a state of war where every man is enemy to every man. This isn't exactly how he sets it out, but this is one of the main things that philosophers do, attempt to take a passage of text or even something someone has said in conversation and break the argument down into its parts, premises leading to a conclusion. In some cases, there are sub-conclusions, which then serve as premises for a yet further conclusion.

Philosophers spend a lot of time thinking about how to reconstruct arguments and about whether those arguments have certain properties, whether they're valid or whether they're sound. A valid argument is one in which if the premises are true, then the conclusion must be true. The truth of the premises logically entails the truth of the conclusion, but we don't say anything yet when we talk about validity as to whether the premises are actually true or not. It is just supposing, if they were true, then the conclusion would follow. A sound argument is one that is valid and which has premises which are in fact true.

Thomas Hobbes' ideas
In most cases, there are many different ways of taking a passage of text and turning it into an argument. Some of these will be better or worse arguments. And one skill that philosophers try to develop is reading an argument as charitably as possible, so creating the strongest possible argument, to then engage with, rather than picking an argument or trying to develop an argument that really is as uncharitable as possible, sort of interprets it as weakly as possible and as easy to refute as possible. That's not worth doing in most cases. We want to look at the best and strongest version of arguments.

Returning to the argument at hand, we might ask several questions about the various premises that we've set out, including whether Hobbes has an unduly pessimistic view of human nature, which would go to whether premises two and three are true. And whether the state as an external force is really necessary to move us out of the state of nature. So, in the next segment, we will turn to consider those questions and other questions about the state of nature argument.

2.3. Escaping the state of nature

Thomas Hobbes' argument is that in the absence of some external force such as a state to hold our natures in check, there'll be a natural state of war where every man is a enemy to every man. In that situation, Hobbes argues, life would be solitary, poor, nasty, brutish, and short. In Hobbes' argument, one premise was that we're roughly equal in terms of our strength and wit and other abilities.

questioning Hobbes
One thing we might ask, why does this matter that we're roughly equal? Why is this part of Hobbes' argument? Part of the answer for Hobbes is that we won't even get to a place of the strong dominating the weak in the state of nature. We might think that would be bad, but at least it would be stable, although it might be oppressive for those on the weak side or those on the sort of less talented side. If we're roughly equal, and Hobbes imagines that we are, at least in this sense, we can continue to fight and respond to each other's attacks on us in a way that never ends, that never reaches an equilibrium. Not only is there the violence, but there's the kind of constant instability.

Thomas Hobbes' ideas
A second thing we might ask, having thought a little bit about the equality part, is whether Hobbes' argument rests on an overly pessimistic view of human nature. Hobbes' third premise is that if there are conditions of natural equality and if human beings possess these desires that Hobbes thinks we do, and there's no external checking force, then there will be a state of war where every man is enemy to every man. One thing we might think is that perhaps we have the desires Hobbes attributes to us, but that this premise still might not be true. It might be that we do not act violently based on those desires, or at least many of us would not, even if we have those desires.

Thomas Hobbes' ideas
A related question is whether the only possible checking force is an external force, something like the state. Perhaps we can have a moral code that we live by, for example, so that our personal ethical beliefs would keep us in check, so that even if we had these desires for revenge, we wouldn't act on them. In that case, we might deny premise three and we might think a state of nature doesn't necessary lead to a war of all against all.

Hobbes thought about this and says a few things about it. First, he suggests that in the state of nature, moral rules don't apply or alternatively, that there are no moral rules. Somehow, morality isn't present and there are no rules of justice. And then second, he suggests that moral rules by themselves would be insufficient to keep us in check. Regarding the first point, Hobbes says several different things, all of which we might put under the heading of, if there's no law and if there's no state, then all is permitted.

Thomas Hobbes' ideas
Here is one kind of argument that Hobbes makes. These premises are referred to as C1 and C2 just to keep them distinct. C1 states that in the absence of some external, checking force such as a common power, there will be a natural state of war. C2 states that if there is a natural state of war, then one cannot obtain peace. C3 states that if one cannot obtain peace, then one is morally permitted to, and this is a quotation from Hobbes, seek and use all helps and advantages of war. Then the conclusion is that in the absence of some external, checking force, one is permitted to seek and use all helps and advantages of war.

Thomas Hobbes' ideas
One idea in the background for Hobbes is that we have a natural or quasi-moral right to self-preservation, which could be formulated as follows. Premise D1, each person has a right to self-defence by all means possible. D2, if everyone else agrees to lay down this right, then you should do so as well. D3, if some do not agree to lay down this right, then you do not have to. D4, the only way in which everyone will agree to lay down their right to self-defence is if there is a common power. D5, if there is no a common power, then some will not agree to lay down their right to self-defence. Conclusion, if there's no common power, then you do not have to give up your right to self-defence.

Thomas Hobbes' ideas
Hobbes says various things which suggest that he has this kind of idea in mind when he says that moral rules don't really apply to you in the state of nature. Perhaps related to these two conclusions, Hobbes says that a mere moral code without any external force to support it or to back it would be inadequate. In chapter 17, he writes, for the laws of nature, as justice, equity, modesty, mercy, and, in sum, doing to others as we would be done to, of themselves, without the terror of some power to cause them to be observed, are contrary to our natural passions that carry us to partiality, pride, revenge, and the like. And covenants, without the sword, are but words and of no strength to secure a man at all.

Hobbes suggests that the state of nature would be a terrible war of all against all. Hobbes suggests that we do need an external checking force, some sort of state or common power, to protect us against this war of all against all. All of this motivates the argument for what Hobbes calls the sovereign.

Thomas Hobbes' ideas
The argument for the sovereign looks like this. Premise E1, for everyone it is rational to want there to be a common power, and this is a quotation from Hobbes, able to defend them from the invasion of foreigners, and the injuries of one another, and thereby to secure them in such sort as that by their own industry and by the fruits of the earth they may nourish themselves and live contentedly. Premise E2, the only way to establish a common power, one man or one assembly of men, as Hobbes puts it, is for each person to submit his or her will to the judgement of a sovereign. Conclusion, for everyone it is rational for them to submit his or her will to the judgement of a sovereign.

Much has been said about what it is to submit one's will to the judgement of a sovereign and whether that's a good idea, whether or not that would undermine our autonomy. Premise E1 is plausible if it is because of these foregoing arguments about the state of nature and the war of all against all. One could run the argument in a more or less moralised fashion. You could say it's rational in these premises or you could say it's morally obligatory. What about premise E2? One thing Hobbes thinks is that the sovereign's power should be absolute.

Many of us think that the state has some power but it can't just do whatever it wants, but for Hobbes, the sovereign was supposed to have absolute power. The reason for this absolute power was that if there's second guessing about the common power does or can do, this will lead to instability and eventually lead us back into the state of war of all against all. His worry was that if the sovereign had to be limited in various ways, there'd be questions about the details of those limits, and we'd fight about them, eventually leading us all the way back into the state of nature, the war of all against all.

But that does not need to be the case and many people have tried to come up with ways of limiting the role of government, but doing it in a principled way that doesn't lead to chaos. Many after Hobbes have embraced a similar line of thought, thinking about how it would be rational for each of us to consent to the political system, to the state or that it would be rational for us to enter into a social contract with each other so as to prevent a war of all against all, or to agree to work together and to lay down our weapons and not fight with each other.

These are all ideas that have been taken up, many of which not accompanied by this absolute sovereign. Hobbes is offering one rationale for the state that's been very popular, that it will help us to escape the state of nature and in particular, help us to live peaceful and productively with each other. Many later views can be seen as expansions or elaborations of this basic idea, with some of the differences stemming from different views about what it is to be bad about being in a state of nature. Some people think it's the violence, some think it's because we can't work together under those conditions.

What should be the scope of the state?
One question we should think about is how this kind of escaping the state of nature argument affects our views about the scope and power of the state. What kinds of things should the state be able to do, if our reason for having the state is to escape the state of nature or to prevent this kind of violence against each other?

This argument might support a kind of minimal state, where there might be police officers and criminal law and things that would protect us from harming each other. It might not immediately support something as robust as a state that would be concerned with providing for everybody's needs, or social welfare more generally, or regulation of drinking water.

2.4. Happiness, welfare and the scope of the state

All or something the state could do
Thomas Hobbes' argument is that the state is useful for escaping the state of nature and for avoiding violence, vengeance, and for promoting peace. John Stuart Mill's harm principle and the view that the state improves human welfare by preventing us from harming each other, and that the state does this largely through the criminal law.

These two views are related, although they are argued for in different ways. One thing that both have in common is they set out a rather limited role for this state. The state is needed to prevent us from fighting, harming and doing violence against each other. Views of this sort could be offered as the sole justification for this state. Views of this sort might also be offered in tandem with other views.

roles for the state
There is also room for a distinction between two different roles the state might play in helping us to live and work together cooperatively and productively, even if we think preventing violence is one of the roles of the state. One view is that the state enables us to live together peacefully and productively simply by preventing us from doing violence against each other. The state allows for peaceful and productive relations to flourish simply by creating laws that prevent us from doing violence against or harming each other. So the state creates the basic conditions for peaceful coexistence and then gets out of the way.

A different view is that the state creates the conditions for peace but also takes steps to improve economic life and efficiency of exchange through state-enforced contract and property law. The state might take steps to improve incentives toward innovation through patent and copyright law. The state might take steps to ensure that all have enough and are educated so that they can be happy and productive members of society by having compelled taxation and redistribution.

Anarchy, state, utopia
The state might get involved with solving coordination problems and collective action problems, providing public goods and public infrastructure through compelled taxation and public finance. And the state might try to harness the knowledge and expertise of the population through various regulatory and administrative agencies. So, even from just within a frame concerned about the state's role in promoting happiness and welfare, and leaving aside for the moment the state's role in promoting equality, freedom or justice, there are very different views.

The virtue of selfishness
On the one hand of the spectrum, there are those who think the state should play a relatively limited role. Robert Nozick in his recent classic, Anarchy, State, Utopia, defends what he calls a minimal state or a night watchman state, a government which protects individuals via police and military forces from force, fraud and theft, and administers courts of law, but does nothing else.

the proper functions of government
Ayn Rand sets out a similar list of what the state should be up to in her book The Virtue of Selfishness. She writes, the proper function of a government fall into three broad categories, all of them involving the issues of physical force and the protection of men's rights. The police, to protect men from criminals. The armed services, to protect men from foreign invaders, and the law courts, to settle disputes among men according to objective laws.

Both of these views, the Nozick view and the Rand view, have a clear affinity with both the Hobbesian argument concerning self-defence and the state of nature, escaping the state of nature. But these views differ in the details of the arguments. Both Nozick and Rand endorse what might be described as a libertarian view because they ground their view of the appropriateness of the minimal state on the significance of individual moral rights.

libertarian view
In particular, Nozick and many libertarians embrace a view on which A, we should have a minimal state. B, the reason that we should have a minimal state is that there are individual moral rights to self-ownership. C, these rights can be made to extend to things beyond just our physical bodies, so that we can have strong, even inviolable moral rights over property, say. And D, a non-minimal state, something more than the minimal state, will by necessity unjustifiably or inappropriately intrude on these rights, the rights to self-ownership and the rights to our property.

It's worth noting how these views interact with some of the discussions about the state's role in promoting happiness or utility. Another kind of view suggests that we should have a minimal state because it turns out the state isn't good at doing more. It's inefficient, wasteful or unwieldy. There are questions we can ask, about what exactly is meant by minimal here. What should be included in the state and why? On the other side of the spectrum are those who think the state can and should be doing more than just preventing us from doing violence or harm to each other.

2.5. John Stuart Mill and the harm principle

John Stuart Mill was born in 1806 and lived until 1873. He was a British philosopher, economist, and civil servant, and is seen by some as the most influential English-speaking philosopher of the 19th century. His views have roots in the works of John Locke, David Hume and Jeremy Bentham, but he developed original and brilliantly written defences of liberal political views regarding moralities, speech, society, and culture. His work was and remains widely read.

Mill's book, System of Logic, published in 1843, established his name as a philosopher. This work revitalised the study of logic and was very influential as an account of the philosophy of science. In 1851, he published the excellent and probably underappreciated Considerations on Representative Government. His three best known works are On Liberty, published in 1859, Utilitarianism, published in 1861, and The Subjection of Women, published in 1869.

John Stuart Mill's view
From 1865 to 1868, he was a member of Parliament of the United Kingdom representing the city of Westminster. During his time as a Member of Parliament, he advocated easing the burdens on Ireland, and in 1866, Mill became the first person in the history of Parliament to call for women to be given the right to vote. He was an advocate of significant social reforms, including arguing for labour unions and farm cooperatives, and arguing for the abolition of slavery in the United States.

John Stuart Mill's view
In an 1862 essay, The Contest in America, Mill wrote about question of whether the north and south in the United States should go their separate over the issue of slavery. In response to the idea that they should be allowed to, because that is what people in the south wanted, he said the following.

Suppose, however, for the sake of argument, that the mere will to separate were in this case, or in any case, a sufficient ground for separation, I beg to be informed whose will? The will of any knot of men, who, by fair means or foul, by usurpation, terrorism, or fraud, have got the reins of government into their hands?

John Stuart Mill's view
Before admitting the authority of any persons, as organs of the will of the people, to dispose of the whole political existence of a country, I ask to see whether their credentials are from the whole, or only from a part. And first, it is necessary to ask, have the slaves been consulted? Has their will been counted as any part in the estimate of collective volition?

They are a part of the population. However natural in the country itself, meaning in the United States, it is rather cool in English writers who talk so glibly of the 10 millions of white southerners to pass over the very existence of 4 millions of enslaved people who must abhor the idea of separation. Remember, we consider them to be human beings, entitled to human rights.

So this was Mill talking about the argument that people living in the south should be free to decide to break off from the United States if that was what they wanted. At that time people talking about this weren't thinking of what the slaves wanted. Mill highlighted this in this passage in this essay. Here, Mill makes what most of us would take to be an obviously correct point, but one that was certainly not universally endorsed at the time in which he was writing. In these ways, Mill was something of a progressive.

John Stuart Mill's view
On the other hand, Mill was an employee for the British East India Company for decades, and argued in support of what he called a benevolent despotism with regard to the colonies, including India. His views here seem deeply misguided and racist, although they were certainly prevalent in the society in which he was living. And these views seem in sharp tension with other commitments of his, including with the harm principle.

John Stuart Mill's view
In an essay published in 1859, a few words on non-intervention, he wrote, and I quote, to suppose that the same international customs, and the same rules of international morality, can obtain between one civilised nation and another, and between civilised nations and barbarians, is a grave error, and one which no statesman can fall into, however it may be with those who, from a safe and irresponsible position, criticise statesmen.

Among many reasons why the same rules cannot be applicable to situations so different, the two following are among the most important. In the first place, the rules of ordinary international morality imply reciprocity. But barbarians will not reciprocate. They cannot be depended on for observing any rules. Their minds are not capable of so great an effort, nor their will sufficiently under the influence of distant motives.

John Stuart Mill's view
In the next place, nations which are still barbarous have not yet got beyond the period during which it is likely to be for their benefit that they should be conquered and held in subjection by foreigners. Independence and nationality, so essential to the due growth and development of a people further advanced in improvement, are generally impediments to theirs.

John Stuart Mill's view
The sacred duties which civilised nations owe to the independence and nationality of each other are not binding towards those to home nationality and independence are either a certain evil, or at best a questionable good.

There is much that could be said about this passage from Mill and Mill's discussion here for a few reasons. First, it's worth noticing the sexist and racist views that some great thinkers and even enlightened and ahead-of-their-times thinkers have had, in part to show that they too are human and flawed, in part to show that even very thoughtful, smart people can have some very small-minded or flawed views. There's no doubt that Mill was brilliant and innovative and had progressive views about women's right and women's suffrage, among other things, but he still had surprisingly poorly thought out and retrograde views about other things such as the colonial power and the colonial relationship.

John Stuart Mill's view
Second, it's worth reflecting on how some of our views which we hold very confidently are likely to be mistaken. Indeed, it's plausible that future generations will look back on some, maybe many, views of ours as immoral, prejudiced, simplistic, or misguided. And what's more, they'll be right about this. This provides an excellent reason to try now to identify those views that we might be wrong about, and to be open to changing our views. Indeed, it's worth thinking about how many of us may still see some human beings as barbarians in the way that Mill did.

John Stuart Mill's view
Finally, Professor Guerrero thinks it's useful to juxtapose what Mill says about the state and the appropriateness of colonial despotic relations with what he says in his classic work, On Liberty. So, in introductory section of On Liberty, Mill articulates what is come to be called the harm principle. He writes, the object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion.

That principle is, the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. This principle has been very influential in thinking about the proper role of the state and the boundaries on what the state can permissibly do. But it's, in many ways, in stark opposition to his much more paternalistic attitude toward people living in what were then British colonies.

2.6. Happiness and the harm principle

the harm principle
John Stuart Mill's harm principle means that the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. This appears to be a very strong statement of a principle that identifies when the state can use its power to further our welfare or for any other purpose, at least insofar as the state's exercising its power restricts our liberty. And the answer is that the state can do this only to prevent harm to others.

necessary condition
Read this way, the harm principle appears to state what philosophers call a necessary condition on the state's action being morally permissible. If that condition does not obtain, then state action is impermissible.

Necessary conditions are commonly expressed this way, B only if A. This means that A is a necessary condition for B. For example, a person can be the Pope only if he is Catholic. A state can permissibly exercise its power against some person Jane only if it does so to prevent harm to others. Necessary conditions do not imply the opposite. For example, the fact that you are Catholic does not mean you are the Pope. It doesn't go that direction.

sufficient condition
In particular, necessary conditions are to be distinguished from what are called sufficient conditions. An example of a sufficient condition, usually written something like this, if A then B. This means that A is a sufficient condition for B. For example, being a human being is a sufficient condition for being a mammal. Scoring the most points in a game is a sufficient condition for winning the game.

Sometimes, one condition can be both necessary and sufficient. So, in some cases, scoring the most points in a game is both a necessary condition for winning the game and a sufficient condition for winning the game. Much of what philosophers do is think about concepts such as freedom, justice, equality, happiness and ask, what conditions are necessary for freedom? What conditions are sufficient for freedom?

preventing harm to others as a necessary condition
One way of interpreting the harm principle suggests that preventing harm to others is a necessary condition of the state legitimately exercising its power. There's a substantial debate about how to understand Mill and the harm principle more generally. The above passage suggests that Mill thinks the state can interfere with Jane, only if it is doing so to prevents Jane from harming other people.

In particular, the state can't interfere with Jane's liberty to prevent her from harming herself. That's a core part of the harm principle. The harm principle is supposed to rule out a certain kind of paternalism where the state makes decisions about what would be harmful to you and then prevents you from doing that thing.

It also makes it seem that the state can't interfere with Jane's liberty to force her to help or provide benefits to others. This would seem to rule out many things that the state might otherwise do to improve the lives of people if doing those things would require, for example, taxing Jane even if she didn't want to pay the taxes, or using or taking her property. Of course, whether these last things, paying taxes, interfering with property, actually interfere with Jane's liberty depends on how we understand property and taxation, and the way in which interfering with those constitutes interfering with us.

public goods, education, taxes
This reading of the harm principle as a necessary condition is hard to square with many other things that Mill says and advocates for in other writings and in On Liberty itself. There he seems willing to allow the state to restrict individual liberty for reasons other than just preventing harm to others. For example, he thinks that each person may be required to pay his or her fair share of the cost of securing public goods. He says things like this in chapter four of On Liberty.

In chapter five of On Liberty, he says that the state should make education compulsory, which might seem to at least violate the liberty of parents. Perhaps children have different kinds of liberty considerations, so being forced to go to school doesn't violate their liberty, but the parents who are forced to send their children to school might seem to be violating their liberty. Perhaps the parents would be doing harm to their children if they didn't send them to school, but that needn't be the case. Maybe the parents are doing a great job educating their children at home so that it's hard to make out the case that the children are being harmed and so the state has to intervene.

to provide benefits
In other work, Mill defends the redistribution of wealth through income taxes and inheritance taxes to ensure that everybody is above a decent minimum standard of living. If we have rights to our money or our property, it seems like this is a way in which our liberty is restricted not to prevent harm, but to provide benefits, or at least, that might be one way of characterising this.

So, Mill himself does not seem to endorse the strictest possible version of the harm principle as a necessary condition on state action. One might try to suggest that he does. But all of these cases seem like cases in which liberty is restricted not to prevent harm to others, but rather to provide benefits, or if not benefits exactly, to help people, not to prevent them from being harmed.

conduct related conditions
In this way Mill seems to be very different from the libertarian thinkers like Nozick and Rand. What should we make of this principle from Mill? How should we understand what he's doing? One thought is that we should understand it not actually as a necessary condition for restricting liberty, but a sufficient condition for restricting liberty, so that if Joe is harming Jane, that's a sufficient condition for having Joe's liberty restricted, in order to prevent Joe from harming Jane.

Let's return to the conditions that Mill identifies in the mentioned On Liberty passage. Among the conditions that must obtain are that I engage in A, some conduct. B, my conduct must affect others. C, my conduct must affect others directly, not just indirectly, because of its effects on me. So if I do something to myself that harms me, it might have effects on you because you care about me. Mill wants to rule out that kind of thing. D, the others affected by my conduct must not have robustly consented to the conduct. And E, at least some of the effect on others must be harmful.

strong version versus weak version of the argument
If all of the above conditions, we might ask, is coercive intervention justified? Is that sufficient grounds on which to intervene? This is a strong version of the harm principle. Satisfaction of the above conditions is sufficient for justified course of intervention. If these conditions are satisfied, then the state may permissibly intervene.

hurtful act
Alternatively, there is a weak version of the principle. Satisfaction of these A through E conditions provides at most a prima facie case for intervention. Further conditions may need to be satisfied for actual justified course of intervention. There's some reason to think Mill actually endorses the weaker version. At one place he says that if anyone does an act hurtful to others, there is a prima facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation.

strong version versus weak version of the argument
In particular, it seems that Mill endorses this weak version of the principle, combined with the principle concerning promoting utility or happiness. He says, as soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion.

On this picture we would first ask 1, does state intervention satisfy all of the above conditions, and 2, if it does, then should we intervene if doing so will promote the general will, or at least, would there be a case for intervention? The state could intervene, but whether it should or not, whether it should actually intervene, depends on whether doing so would be in the general welfare.

satisfy conditions
There are some reasons to worry about the stronger version, where just satisfying these conditions would be sufficient to ground state intervention. In particular, it seems to give the wrong results in lots of cases. There are what philosophers would call counterexamples to the strong version of the principle. There are cases which seem to satisfy the template, but which actually we don't intuitively think get the right result.

counter example
One counterexample is the following case. Two people, A and B, are in a long-term relationship and they decide to get married. When they marry, they both want to have kids and express this desire to each other. After several years of marriage, A decides that she doesn't really want kids. This devastates B, who still loves A, but who also really wants to have kids. It seems that by deciding that A doesn't want to have kids anymore, A harms B by this decision, but it doesn't seem that intervention is justified.

It seems odd to imagine state intervention in this case that would somehow force them to have children or force A to change her mind about what to do. The strong version of the principle would say you could intervene because the conditions are satisfied, the A through E. But we don't want to say that the state would be justified in intervening.

Then we could ask, what does the weak version of this principle say about this case? Would this case in particular pass the sort of weak version where you look at utility calculation of the state intervening? And there, it seems like it might not. In particular, we might be worried about the state intervening in personal affairs in this way, particularly in these kinds of personal choices about whether to reproduce, whether to have children. We might not want the state to be involved in those decisions. For all kinds of reasons, looking at the general welfare might make many of us really unhappy for the state to get involved.

utility in the largest sense argument
This starts to get to the motivation for the harm principle and whether we should think about it as conjoined with some principle of promoting the general welfare. Why should we accept the harm principle even in the weaker version, where it's seen as a important constraint of when the state can act of some kind or other? Here is one argument that Mill makes at various places for the harm principle, something that you might call the utility in the largest sense argument.

He writes that each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

the strongest argument against interfering
This basic idea can be seen as something like an epistemological point. We are each in a better position to know what will make us happy than any outside person is. I know what will make me happy more than you do. In particular, we might think it's going to be very hard to have what we might call a central planner for our happiness, whether it's one central entity such as the state that tries to make decisions about what would make each of us happy.

Related to this, it's very hard to do successful paternalistic intervention. Mill writes, the strongest off all the arguments against the interference of the public with purely personal conduct is that, when it does interfere, the odds are that it interferes wrongly, and in the wrong place. This is another kind of worry about having the state involved in certain kinds of personal affairs.

utility in the largest sense argument
Despite that Mill did think that the state had a role to play in regulating some interactions between people. This is very apparent in his discussion in the subjection of women. Another argument we might make for the harm principle presses directly against paternalism itself, not saying just that the state would be bad at intervening to promote our happiness, but on something more like freedom or autonomy grounds.

Mill writes, neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own well-being, the interest which any other person, except in cases of strong personal attachment, can have in it, is trifling compared with that which he himself has. This quotation does not square with his remarks about colonial relationships.

baseline problem
One difficulty running throughout this discussion is what we might call the baseline problem. What counts as harm? There's a question about benefits and harms. Does failure to provide a benefit equal harm? I could give you some ice cream, but I decide not to. Does that harm you? Another question is about competition and harms. You and I are both competing for something that you want, and I win. Does that mean I've harmed you?

You could benefit me, for example, by transferring all of your money to my bank account, but it doesn't follow that your failure to do so harms me. Why not? Presumably, because we assess harm counterfactually. If x harms me, it makes me significantly worse, or at least somewhat worse off, than I would have been otherwise. This makes clear that harms are assessed relative to some baseline. There's this otherwise question. And it's a hard question of how to set the baseline.

two versions of the harm principle
One hard issue related to the baseline question is that we can distinguish between two versions of the harm principle. In one version, the state can restrict B's liberty in order to prevent B from harming others, where the focus is on preventing B from harming others. Another version of the principle says that the state can restrict B's liberty in order to prevent harm to others, where it doesn't matter that B is the one causing the harm.

In this second version of the harm principle, many more things will be tolerated because there might be many things that you do where you are not directly harming people, but preventing you from doing those things would prevent harm to others. Assume that A is the fastest person in the world. A is in competition with all others. And every time A runs, A wins the race, and this makes everybody else sad. A is not harming anybody but it might be true that if he is barred from running in these races, all other people would be better off.

Relative to some baseline, it would be preventing harm to the others. That's controversial because is it really preventing harm to them? There will be lots of cases like this where much of the debate turns on whether there's an entitlement or a right to something, and so that establishes a certain kind of baseline. When people don't get what they're entitled to, they're harmed, as opposed to a different kind of picture where there's no entitlement or right. Those entitlements could be good for those that have them. That changes for many people the argument that the state can play a role enforcing other people to make them have these good things.

2.7. A more constructive role for the state in promoting happiness

The previous segment discussed Mill's harm principle and views that would treat the prevention of harm as either a necessary condition for a permissible liberty-restricting state action, as a sufficient condition for making liberty-restricting state action permissible, or as a condition which is part of a pair or set of conditions which are together jointly sufficient for doing this.

In the background is the idea that much of what the state does will have the effect of restricting individual liberty. Obviously, if the state enacts a law against some conduct and will imprison or otherwise punish those who break this law, that restricts individual liberty and that's a kind of easy case.

But there are harder questions about whether my liberty is restricted if the government taxes some of my income. Or whether the government limits my property rights, limiting what I can do with my property, or how or whether I can pass on my property after I die. These are restrictions on me, but are they restrictions on my liberty?

These are hard questions and we'll consider them more fully in the section on the state's role in promoting or undermining freedom. If we interpret the harm principle as a necessary condition on permissible state action, then the state can intervene permissibly against an individual only if it does so to prevent harm to others beside that individual. This would dramatically limit what the state can do, assuming we think of harm in something like the ordinary way.

collective action problems and public goods
On the other hand, if we interpret the harm principle as only a sufficient condition or as sufficient in tandem with, say, the promotion of the general welfare, then there may be much more than the state can permissible do. In the next several segments, we will consider several such accounts of a more positive role for the state in promoting happiness or welfare. Not the state just to prevent us from harming or doing violence to each other, but to help us work together or help each other in various ways.

We begin by considering arguments developed both by philosophers and, in large part, by economists, political scientists and legal academics. First, we'll consider the possible role for the state in helping to solve collective action problems and to provide public goods.

We'll then consider arguments that highlight the state's role, or a possible role for the state, in helping to promote happiness and the general welfare though its epistemic capabilities, its ability to harness the information and knowledge possessed by the people at large, and to use that information and knowledge to make the best possible political decisions.

Then we'll turn to consider views that maintain that state institutions, and particularly legal institutions, are essential for economic development for efficient exchange of goods and services and for the promotion of socially productive relationships. All of which, it suggested, contribute to human welfare and happiness. Views of this sort focus on the role for the state in creating and enforcing contract law, property law, tax law, family law, and other bodies of law.

capabilities approach
Finally, there is the capabilities approach to promoting human flourishing that has been developed by Amartya Sen and Martha Nussbaum, among others, identifying the role that the state can play in helping all of us to access the material and other kinds of resources that we need to develop our capabilities.

We conclude our discussion on happiness and welfare with answers to the question, why should we have a state? One of the arguments running throughout this discussion is the extent to which the state is good at promoting happiness or welfare, and to the extent the state can play a role, what its role should be.

2.8. Collective action problems, public goods and free riding

Human beings are social creatures. We like to interact with each other, even if we don't always get along or agree. We can do more together than any one of us can do on his or her own. Indeed, there are some projects that would be unimaginable as individual undertakings. For example, think of the development of modern medicine and a health system, or the creation of a national train network or sewer systems, firefighting departments, public education systems, creating a system of higher education, the production and support of the arts, music, theatre, film, dance, and providing for the public defence.

choice theory
All of these goods contribute greatly to our welfare and happiness. It can be difficult however, to get us to work together to accomplish these things. Sometimes we might all agree that something needs to be done, but disagree about what in particular to do. In other cases, we might agree about what needs to be done but disagree about how much each of us should contribute to the project. In other cases we might agree about how much each of us should contribute, but we might still fail to accomplish our objective because some of us don't do our agreed upon share, perhaps trying to free ride on the efforts of others.

These are all familiar enough experiences if we want to spend any time working with others or trying to work with others in a group. Political economists and other academics working in the 20th century have done much to formalise and analyse this kind of problem under many different headings including, collective action problems, public choice theory, rational choice theory, and game theory, but these are, in a way, old concerns.

Rousseau's metaphor of the stag hunt
In the philosopher Jean-Jacques Rousseau's 1755 work, A Discourse on Inequality, he introduced the metaphor of the stag hunt, or the deer hunt on some translations. Here's Rousseau's example. If it was a matter of hunting a deer, everyone well realised that he must remain faithfully at his post. But if a hare happened to pass within the reach of one of them, we cannot doubt that he would've gone off in pursuit of it. Without scruple, and having caught his own prey, he would have cared very little about having caused his companions to lose theirs.

In this example, no individual is strong enough to subdue a deer by himself. It takes only one hunter to catch a hare. That's part of the example. It's also suggested that everyone prefers stag to hare, and hare do nothing at all, which is what the stag party will end if too many members run off chasing hares. So, why wouldn't everyone just work together to hunt the deer? One reason is that people might be uncertain that others will continue to work with them. If some of their group leave, this may undermine the stag hunting effort leaving those remaining with nothing.

Hume's boat pulling example
Another old example, the floss for David Hume offers an example in his 1777 work An Enquiry Concerning the Principles of Morals. He writes of two men who pull at the oars of a boat, who do so by an agreement or convention. Each man can either row or not row. The best thing for both of them is for both of them to row the boat. The worst thing for each of them is to exert the effort of rowing, but without the other one doing so. This would be like hunting the deer pointlessly by oneself.

There are many other examples similar to these, some of which have the structure of what is called a prisoner's dilemma. There are other examples. It might be better for none of us to build or have a nuclear bomb if it has not already been built. It's much worse if your country builds or has a nuclear bomb and mine does not. So we can end up in a situation in which both countries work hard to develop nuclear bombs, even if it would be better for the world and for each of us if neither country did.

free riding
If we're all professional athletes, and there's some harmful but effective performance enhancing drug like steroids, it would be better for none of us to take the drug, but you will be at a considerable disadvantage if you do not take it and your opponents do. This might even put you in danger of losing your position on the team. We can end up in a situation in which all of us take the harmful drug, even though it would be better if none of us did.

Another kind of problem is posed by the possibility of free riding. Collective action occurs when people work together to achieve some common objective. However, individuals often fail to work together to achieve some group goal.
public goods
In part this may happen because, while each individual in the group may share common interests with every other member of the group, each individual also has conflicting interests. We don't share all of our interests in common. If taking part in a collective action is costly, and people believe that the collection action will occur without their individual contributions, then they may try to get by without making those contributions.

With prisoner's dilemma and free riding situations, one natural response is to have some third party impose or enforce certain group decisions. This is a natural role for the state. One aspect of the collective action problem is that posed by public goods in particular.

public goods
A public good is one that is economically infeasible to exclude people from using, and one in which my use or consumption does not affect your use or consumption. These are goods such that, once they are made available to one person, can be consumed by others at no additional marginal cost. They exhibit what's called non-rivalness of consumption. Your consumption does not affect or prevent mine. And they exhibit non-excludability. If the good is supplied, it's impossible to exclude others from consuming the good.

public goods
Some examples are highways, clean air and national defence systems. If I'm consuming it, it's very hard for me to restrict you from consuming it as well once it's produced. Other examples people talk about are population health or herd immunity, where we're all better off if we're all relatively immune to certain conditions. Another example, basic science research. We might all benefit quite a bit from technology, medicine, and other kinds of development, but once those things are out there and created it's very hard to keep some people from benefiting.

The problem posed for public goods by the free rider problem is that there are many things that will be under supplied, under funded, unfairly funded or that won't exist at all, although they are of significant value. The free rider problem occurs, or at least might occur, wherever there's a good that is non-excludable. Non-excludability leads to the free rider problem, because a person can enjoy the benefits of the good without having to pay for it, as long as the good is provided at all.

A possible response to this is to attempt to convince would-be free riders. But if they do not contribute, they will not receive the good, not because they'll be excluded but because the good will not be provided at all unless everyone does their part. This won't always be possible or it may be very difficult to convince people of this.

One thing to notice is that some of these collective action problems, and particular the free-rider problems, become more pronounced as the size of the group increases. It's certainly harder to organise a large group other things being equal. On the other hand, the larger the group, the less important any individual contribution may be to the success of the collective project. So, if there are a million people all paying taxes to fund basic science research, for example, tax evasion on the part of one of them is unlikely to make much difference.

Each individual may feel that the detection of their known contribution is going to be less likely if there is million people, and that it's less bad not to contribute since there are so many others. So unlike in a small group with four or five people where they can all tell that someone is not doing his or her part, and if does not do his or her part, it's quite likely going to fail. As the group gets larger both of those things are altered.

selective incentives
Problems of collective action were brought into theoretical close focus by the American political economist Mancur Olson, in his 1965 book, The Logic of Collective Action. He suggested that coercion or some other device must be present in order for a group of individuals to act in their common interest. Olsen suggested that in practise,collective action problems were solved in large groups by the use of selective incentives. These selective incentives might be extra rewards that you only got upon taking part in the action, or penalties imposed on those individuals who did not take part.

One difficulty with this kind of response, however, is that in order for positive selective incentives to work, individuals who take part in collective action must be identified so that they can be rewarded. And for negative selective incentives, those who do not take part, those who do not contribute must be identified so that they can be punished or disincentived. Either way, a good deal of organisation and monitoring is going to be required.

selective incentive types
The political scientist James Q. Wilson, offered a taxonomy of types of selective incentives that might be present, so as to present the free writing and encourage collective action. The first category is what we might call material incentives, payment, fines, rewards, or punishments, for participating or not. These work from the outside.

The second category are solidarity incentives, benefits or costs of participating or not, that arrive from relationships with other people, either gaining respect in the community and gaining honour or losing respect, losing honour, losing friends. This highlights the way in which we can get communal pleasure from doing things and from being a part of the team, being a part of the group and that we might lose out on that, if we are not actually contributing.

Finally, there are moral or internal incentives. These are ethical norms that might be embraced, so that one does the right thing, because one thinks that one ought to, or because one seeks out the feeling of having done the right thing. We want to feel like we're contributing, and we feel like we have a moral obligation to do that. Some of these incentives will be more or less effective depending on the particular context.

For example, groups that are more sociable and having greater networking subgroup organisations, are better at overcoming collective action problems than groups without those qualities. If people are relatively isolated, don't know each other, it's much harder to solve these kinds of collective action problems. Here we can see one promising role for the state, helping to provide selective incentive to support various collective action projects, and to enforce individual action so as to overcome prisoner's dilemma and free riding obstacles.

Hardin comment
In the Stanford Encyclopaedia of Philosophy, Russell Hardin writes, when we vote on a policy, we change our problem from a collective-action prisoner's dilemma into a simple coordination problem by ruling out individual idiosyncrasies in our choices. We have only collective choice, provision for all or provision for none.

Hardin comment
Suppose you and I both want cleaner air but that each of us would free ride on the efforts of the others to clean the air. State policy can block free riding, if necessary at metaphorical gunpoint. We both prefer the general effort to provide cleaner air, and we both pay our share toward the cost of providing it.

In this way, if we decide as a group that we want to engage or not in some project, we can use the power of the state through both positive and negative incentives to make sure that each of us act so as to do our agreed upon part with respect to that project, or to refrain from engaging in that activity, as the case may be.

We can make free riding or collective project undermining conduct illegal. We can encourage some behavior by providing incentives or benefits for those who engage in it, or we can decide to provide some public good, and the collect taxes, so as to make sure everyone contributes their fair share. This is a very significant role for the state to contributing to happiness in the general welfare. Particularly in the eyes of modern political economists and political scientists. This one of the main things they think the state might play a role in doing for us.

2.9. The epistemic power of the state

epistemic role for the state
In the modern world many political problems are complex. There are many moving parts and one often has to be an expert just to understand the details with respect to global warming, national defence, maintaining an efficient transportation infrastructure, insurance regulation, public health, energy policy, finance regulation or tax law. These are all really complicated areas of law and policy.

To make good policy with respect to these issues, one would probably need to know a lot more than the average person knows about those issues. One role that has been suggested for the state, or at least certain kinds of states, is to help improve the epistemic quality of the decisions that are made, which means making more informed decisions than any one of us could do.

There's a whole branch of philosophy called epistemology that focuses on theories of knowledge, theories of justified belief. In particular there's a branch called social epistemology that focuses on ways in which our practises in social communities and political institutions can help improve the accuracy or the truth of the judgements that we reach together. All of this falls under the category of epistemic virtues of the state. In this segment two different kinds of epistemic arguments are mentioned. Both apply only to some states, and states operating with some kinds of political institutions in particular. It's not a general argument.

epistemic arguments
The first kind of argument focuses on different kinds of institutions that might be epistemically valuable, in particular on the use of political representatives and on the use of administrative agencies, both as part of the state. The second kind of argument focuses more generally on democratic institutions and the role that various elements of democratic political systems can play in improving the epistemic quality of decisions that get made by the political system.

There are many reasons to think that systems of electoral representation are likely to make epistemically good decisions, at least when those decisions are compared to those that be made by direct democracy, where each person in the community has a vote directly on each policy question, or whether to pass some legislation or not. Rather than have a representative do this for us, we each would be responsible for voting on everything.

The theory behind systems of representation, in part, is that representatives are going to be solely devoted to the task of making law and policy. This is a division of labour argument. They'll have time to research, consult experts, consult their constituents, deliberate and then debate. In many places they have considerable staffs helping them do all of this so they can come to have a more informed opinion about what needs to be done, about which problems are most urgent.

Furthermore, representatives have to face re-election, and so they want to do things that actually will make things better for their constituents. Representatives in a position to make decisions holistically, weighing tradeoffs, making compromises when necessary, balancing competing interests, and having a sense of relative priority and budget limitations. Unlike us, where we might just see one issue and not know what's coming next, they can look at the whole package and make an informed decision about what to focus on. At least that's the theory.

James Madison's phrase
All this allows for the views of individual citizens to be refined and enlarged, in James Madison's phrase. James Madison is one of the founders of the US government, and his idea was representatives could play this kind of vital role. All these reasons suggest that an elected representative system would do a good job at harnessing all the information that's out there to make political decisions.

On the other hand, we might use something that is referred to at least, in the United States context as administrative administrative agency lawmaking. These agencies are devoted to carrying out in great detail what a legislature or executive has set as the policy agenda. In the United States, for example, there are agencies devoted to almost every aspect of our lives, such as NASA, the Food and Drug Administration and the Environmental Protection Agency. There are agencies that operate at the federal, state, and local level.

administrative agencies
All these agencies make use of both staff and non-staff technical experts who come in and provide input. So whether the field is electrical power, telecommunications, or finance regulation, agencies retain a permanent staff of experts so that the decisions the regulatory decisions made by the agency will be informed by the best information in the field and will be able to respond to technical advances as they occur.

These administrative agencies are seen as somewhat technocratic bodies in some cases. They can improve the general welfare or the happiness of all of us by helping make informed decisions on our behalf. Some object to institutions of this sort on the grounds that they might intervene excessively in people's lives or that they can serve as kind of a paternalistic overlord.

three main issues
There are several arguments that point out the general epistemic benefit of states that operate democratically. There's been a significant increase in defending democratic institutions on the grounds that they do a better job at creating and responding to factual information, at pulling wisdom that might be held in part by some of us, even if not by all of us, and by making reality based decisions. All of these might be better than various non-democratic alternatives.

There are many different arguments offered in this vein but they centre around three dominant issues. First, the value of public and transparent deliberation and explicit public reasoning. Second, the value of cognitive diversity and inclusivity, particularly including all informationally-relevant vantage points and perspectives. And third, the value of wisdom-pooling and mechanisms that allow for the aggregation of disparately held information.

The suggestion is that democratic norms will yield significant epistemic benefits. Democracy is inclusive, and in some cases it promotes reasoning and deliberation. Democracy allows for information aggregation. In some respects, all this harkens back to very old ideas going back to Aristotle and his politics. Aristotle lived in Ancient Greece from 384 to 322 BCE and is widely regarded as one of the greatest philosophers ever.

Aristotle's argument
He writes in politics, the principle that the multitude out to be supreme rather than the few best is one that is maintained, and, though not free from difficulty, yet seems to contain an element of truth. For the many, of whom each individual is but an ordinary person, when they meet together may very likely be better than the few good. If regarded not individually but collectively, just as a feast to which many contribute is better than a dinner provided out of a single purse.

For each individual among the many has a share of virtue and prudence, and when they meet together, they become in a manner one man,. Who has many feet and hands and senses. That is a figure of their mind and disposition. Hence, the many are better judges than a single man, of music and poetry; for some, understand one part, and some another, and among them, they understand the whole.

This feast analogy has been used to support democracy on the grounds that, although each of us may be limited in what we know, together we bring a lot to the table. A natural worry is that whether it might make more sense to have experts make the decisions, at least if we are concerned with getting decisions made in light of the best information available. Aristotle himself considers this worry.

Aristotle's argument
He writes, on the other hand, the popular form of government involves certain difficulties. In the first place it might be objected that he who can judge of the healing of the sick man would be one who could himself heal his disease and make him whole. That is, in other words, the physician. Secondly, does not the same principal apply to elections? For a right election can only be made by those how have knowledge.

Those who know geometry, for example, will choose geometrician rightly, and those who know how to steer, a pilot. And even if there be some occupations and arts in which private persons share in the ability to choose, they certainly cannon choose better than those who know. So that, according to this argument, neither the election of magistrates, nor the calling of them to account should be entrusted to the many.

Aristotle's argument
This is the kind of objection that Aristotle is thinking about to what he said about the feast. Aristotle says two things in response to this thought about expertise. He says, possibly these objections are to a great extent met by our old answer, that if the people are not utterly degraded, although individually they may be worse judges than those who have special knowledge- as a body they are as good or better.

Aristotle's argument
Still, Aristotle did not tell why this should be the case. Perhaps, the feast analogy provides an answer. But then he makes a new point. He writes, moreover, there are some arts whose products are not judged of solely or best by the artists themselves, namely those arts whose products are recognised even by those who do not possess the art; for example, the knowledge of the house is not limited to the builder only; the user, or, in other words, the master, of the house will be even a better judge than the builder, just as the pilot will judge better of the rudder than the carpenter, and the guest will judge better of a feast than the cook.

This suggestion may be a way of blocking this worry about well maybe experts will do better. Perhaps the many, the people are the best judge of the results of the art of politics. In the next segment we will consider some modern developments of these ideas, and modern arguments with with respect of the sort of epistemic virtues of democracy.

2.10. The epistemic power of deliberation

epistemic arguments
In her excellent recent book, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many, Hélène Landemore, a political theorist at Yale, discusses and develops several suggestions regarding the epistemic virtues of democratic states. She identifies two significant strands about epistemic arguments for democracy. She understands democracy as rule by many people rather than by just one person or a few people.

The first strand she focuses on, is the epistemic value of deliberation, or reasoning together to figure something out. Part of the thought here might be related to the Aristotelian feast idea, that we all bring something to the table. If that’s true, then we need some way for each of us to able to offer our input to the group and for each of us to be heard. So in particular, affirmative steps may need to be taken to make this possible and there are questions about how it could be possible in a large group.

information environment
Epistemic arguments about the value of the state focus on the information environment of a community. Is there good information available? Do people have access to it? Are there obstacles and misinformation being introduced into the information environment? Are there venues in which people can engage with each other to process the information they encounter, and share with each other the reasons they hold the views that they do, try to explain themselves to each other?

deliberative democracy
A significant recent development in political theory is to focus on deliberative democracy, a tradition that highlights the role that reason-giving, giving reasons to other people, explanation, explaining ourselves to other people, and deliberation, should play in democratic practise. This tradition has been developed by Amy Gutmann, Dennis Thompson, and Joshua Cohen, among others. It argues that democracy is not just about giving each person a vote and counting up the votes, but it's also about how we talk and engage with each other about what we as a political community should do.

cognitive diversity
This might seem like a good thing to do, maybe even something that we're morally required to do if the law's going to be imposed on people, but there's also recent formal work demonstrating that large cognitively diverse groups that share reasons and work together do better at getting the right answer than small numbers of experts. Using formal models, Lu Hong and Scott Paige have recently defended the thesis that cognitive diversity trumps ability. A cognitively diverse group will do better than a group of experts with higher ability who are not cognitively diverse.

cognitive diversity
Hong and Paige focus on cognitive diversity, where this means a number of different things. They identify four different kinds of diversity. Diversity of perspectives, where this is about how we represent situations and problems. Diversity of interpretations, where this is about different ways of categorising perspectives. Diversity of heuristics, where this is about different kinds of problem-solving methods. And diversity of predictive models, where this is about different ways of inferring cause and effect.

It's an open question, the extent to which Hong and Paige's work in these models will actually work in real world conditions or will apply to real world conditions, but there's at least reason to think that an inclusive political system, like a democratic state, will do better in terms of cognitive diversity than a authoritarian system, where there's just one person, or a technocratic system, where there's just a group of experts who have been chosen for their expertise that might not be cognitively diverse. They might all use the same kind of heuristics or sort of causal models, for example.

freedom of speech
Another important role for the state might be to harness the cognitive diversity of the political community, all with an eye towards making the best decisions possible and towards promoting the general welfare. Here democratic norms and rights might play a significant role. Certain kinds of political systems will try to protect their information environment in various ways. Democratic systems in particular will enshrine certain kinds of rights and values.

freedom of the press
For example, political system might do this by protecting freedom of speech so that we can each say our part even if it goes against what the majority thinks or what the government is trying to get us to believe. Another kind of important protection is freedom of the press, so that powerful individuals and institutions can be challenged and criticised.

freedom of association
A related important protection is that of freedom of association, so that we can meet together to organise, share our ideas, and talk through what we believe. In some cases, additional kinds of rights will be important, particularly those protecting political equality, making sure that all voices are heard and that some don't get to have more influence than others simply for being richer or more powerful.

political equality
Political equality might be relevant too for creating a good information environment. It might be important to regulate campaigns, for example by offering public financing or by limiting how much candidates can spend on advertising and campaigning. This will help prevent the wealthiest among us from spending as much as they can to support their own campaigns or the campaigns of their favourite candidates.

One worry focuses on equality, but another worry is that there's a kind of distortion in the information we get if some people get to speak more or more loudly simply because they have greater resources. This concern comes from a perspective of making decisions in light of the best available information, so that we make decisions that lead to improving the general welfare and promoting happiness. If we all have something to contribute or if we might have something to contribute in terms of what we know about, even though we're not wealthy, then there will be reasons to want the state to help protect these freedoms and to fight to protect these freedoms against the state overreaching or against state censorship.

2.11. The epistemic power of large numbers

epistemic arguments
A different strand of the epistemic argument for democracy focuses not on talking, but on counting. Arguments in this vein also focus on the idea that everybody might have something to contribute, but rely on several formal arguments that appear to demonstrate that there can be an epistemic advantage to using a larger number of people to make some decision, having to do with the positive epistemic properties of judgement aggregation with large numbers of judgers.

One well known argument here relies on what's called the Condorcet jury theorem, developed by Marquis de Condorcet, who was born in 1743 and died in 1794. He was a French philosopher, mathematician, and an early political scientist. Unusual for his day, he advocated for free and equal public education and equal rights for women and people of all races. He's best known for developing a number of formal tools that highlight the epistemic value of voting by large electorates.

Condorcet jury theorem conditions
The Condorcet jury theorem itself suggests that among large electorates voting on some yes or no question, the majority is virtually certain of getting the correct answer as long as three conditions hold. The first condition, independence, means that all the members of the group vote independently of each other. The second condition, enlightenment, means that the voters are better than random at choosing the correct answer. The third condition, sincerity, means that the voters vote sincerely as opposed to strategically.

Condorcet jury theorem conditions
If all of those conditions hold, then increasing the size of the group increases the probability of the majority getting it right. As the number increases, the probability moves exceedingly close to 100%, which means that it's almost certain that they'll get the right answer. If these conditions hold for a particular political community with respect to a particular question that could be framed as a yes or no question, then the Condorcet jury theorem would provide a very powerful argument in favour of using democratic means of having everyone vote and letting the majority choice win.

There's been a great deal of recent discussion of the Condorcet jury theorem. The main concern has been about the enlightenment condition, the idea that the voters have to better than random at choosing the correct answer to the yes no question. Former work that has been done has been showing that what's needed is that the median voter, the person in the middle, has to be better than random. That means there would be better than a 50/50 chance if we flipped a coin at getting the answer right. This is the difficulty in the competence of the voters.

worries about the enlightenment condition
Let's take some examples. If the question is, are there more than five countries in Africa? Then we might suppose the median voter will be better than random at this, having a greater than 50% chance of getting the answer right. If we change the question to, are there exactly 53 countries in Africa? Then that number might drop considerably in terms of the accuracy of the median voter.

A related worry is the possibility of systematic error. If we've all been indoctrinated to believe something that's false, there's a chance that we'll all be below 50% chance of getting the question right. The answers are not going to be random or randomly distributed if we've all been indoctrinated in some way to believe something false. An important result from the Condorcet jury theorem is just as very quickly approach a certainty that we'll get the answer right if we're above 50% competence, if we're below 50% competence it very quickly approaches certainty that as the group gets larger, that we'll get the answer wrong.

It's worth thinking about the extent to which political questions look anything like factual yes or no questions and what it would mean to get correct answer to some political question. A big issue for epistemic arguments, and arguments about happiness or the general welfare in general, is that there can be significant disagreement within a political community about what even counts as promoting happiness or general welfare. There can be disagreement about what would count as getting the right answer to some of these political questions.

the miracle of aggregation
The Condorcet jury theorem is related to something called the miracle of aggregation. Some people refer to this as the wisdom of the crowd. Francis Galton, who was born in 1822 and died in 1911, was an English anthropologist, explorer, inventor, scientist, and statistician, among many other things. He has this really interesting well-known anecdote that illustrates the miracle of aggregation.

the miracle of aggregation
In 1906 he was visiting a livestock fair and he stumbled upon a contest. An ox was on display. The villagers were being invited to guess the animal's weight. Nearly 800 people participated, but no one hit the exact mark. The exact answer was 1,198 pounds. That was how much the ox weighed. Galton himself suggested that the middlemost estimate expresses the voice of the people, every other estimate being condemned as too low or too high by a majority of the voters.

He was thinking about the median, which is the guess in the middle of all guesses. He calculated this median value to be 1,207 pounds. So to his surprise, this was the, within 0.8% of the weight measured by the judges, extremely close to getting the right answer. It turned out that the average guess, so all guesses added up and then divided by the total number, was 1,197 pounds, which was even more accurate, almost perfectly right.

wisdom of crowds
This is a striking phenomenon. What could possibly explain this average being so close, and closer than any of the individual guesses. James Surowecki has written a book, The Wisdom of Crowds, that discusses this phenomenon in great detail, and discusses many other examples. One main question in this work is about why this happens. Why does the average guess of large numbers of people, on matters with a factual answer, tend to be uncannily accurate?

One suggestion is that as long as uninformed people's answers are randomly or symmetrically distributed, they will cancel each other out. This will lead to a bunch of noise from the uninformed, with the views of a truly well informed subset of the whole, all congregating around the correct answer. Some views might be quite wrong, but they will cancel each other out in a nice way, leaving the views in the middle, maybe those of the truly well informed, to actually drive the result. The aggregation of many views allows the cream to rise to the top. This is better in many ways than having to identify the experts, the people who truly are well informed, since it may not always be apparent who counts as an expert.

mechanism at work
A second possibility that might explain this is in this idea of error cancelling out, but the possibility that all of the people have opinions that are roughly correct and the distribution of errors around each individual's somewhat fuzzy judgement, makes it so that individual errors cancel each other out in the aggregate. We might each have a pretty good ability to guess the number of pebbles in a jar, for example, and so we'll make guesses near the correct answer. The ways in which we're off the mark will cancel out, and in the whole will get to be very close to the average.

There are questions about when this happens or why this happens. There are issues about why would we see this kind of cancelling out. But the thought is that as long as uninformed people's answers are randomly or symmetrically distributed, or as long as all of us are roughly correct, the incorrect answers will fall by the wayside, leaving the correct result as the average. Surowecki and other thinkers have highlighted the value of markets in terms of harnessing lots of disparately held information. They argue for using what are called prediction markets, where people are allowed to bet, for example, on who will be the Republican nominee for president in 2016. As people place various wagers, a market develops.

Hayek's view
In earlier work, Friedrich Hayek, a 20th-century Austrian economist and philosopher, developed some related ideas in advocating for using markets, and against what are called collectivist or centrally planned political and economic systems. In his classic work, The Use of Knowledge in Society, he wrote, today it is almost heresy to suggest that scientific knowledge is not the sum of all knowledge. But a little reflection will show that there is beyond question a body of very important but unorganised knowledge which cannot possibly be called scientific in the sense of knowledge of general rules, and that is, the knowledge of the particular circumstances of time and place.

Hayek's view
It is with respect to this that practically every individual has some advantage over all others, because he possesses unique information of which beneficial use might be made, but of which use can be made only if the decisions depending on it are left to him or are made with his active cooperation. We need to remember only how much we have to learn in any occupation after we have completed our theoretical training, how big a part of our working life we spend learning particular jobs, and how valuable an asset in all walks of life is knowledge of people, of local conditions, and of special circumstances.

Hayek's view
To know of and put to use a machine not fully employed, or somebody's skill which could be better utilised, or to be aware of a surplus stock which can be drawn upon during an interruption of supplies, is socially quite as useful as the knowledge of better alternative techniques. Hayek uses this idea of locally held knowledge that's widely distributed and isn't organised by general rules or principles to defend the use of market economies and fair market prices to price goods and services, rather than having central planners try to correctly identify the value or worth of goods and set prices from some central political office.

He also used this thought to motivate something like democratic input to political systems, since in that case, again, we're dealing with lots of detailed and dispersed information about what people want and what they value and what they think would be best. This connects to Mills' thought that each of us is a better judge of our own interest than any other person. So there's a liberty, freedom, autonomy dimension, but there's also an informational dimension. In thinking about cognitive diversity, the Condorcet jury theorem, the wisdom of crowds, and the informational value of markets, showed a number of reasons to think that the many will have better views than the few, even than a few experts, particularly if we have broadly inclusive rules regarding who gets to have a say, who gets to participate.

This may all provide a reason to have a democratic state with robust norms of inclusion and aggregation of views, where everyone gets to participate and have a say, and where there's robust norms of free speech and free press and free association, all to help us get the right or best answer to our political problems. Of course, this depends on whether any of these theories work in practise, and whether we actually get these expected results. Particularly, it depends on whether there are features of the informational environment that lead to systematic bias and error.

Perhaps everyone gets their news or their information from the same biased source, or there are strict limits on which views can be expressed. Under those circumstances, a lot of these arguments won't work. It also depends on political questions being ones that have a substantial factual component, so that these methods and talk of getting the right answer make sense. But if these things are in place, then there may be a significant role for the state in harnessing our collective intelligence, so as to make decisions that truly promote happiness and the general welfare.

2.12. Law and development

So far, a number of different arguments that focus on the role the state might play in promoting happiness and the general welfare, have been discussed. Some of these, such as Hobbes' argument that the state might get us out of the state of nature, remain pretty vague about the details of what the state would look like or how the state would actually get us out of the state of nature. This segment provides a bit more detail, focusing in particular on the role that law can play in social and economic development, both of which might be important for improving the general welfare of a political community.

government institutions for economic development and socially productive relationships
Some views maintain that state institutions, and particularly legal institutions that create and support contract law, property law, tort law, and criminal law, are essential for various forms of economic development, efficient exchange of goods and services, and the promotion of socially productive relationships. At the very general level, law if backed by functioning legal institutions, can introduce predictability and accountability into a society. Law becomes particularly important as societies become larger and more of our transactions with each other come to be with strangers rather than with friends and family.

the rule of law
Max Weber, who was born in 1864 and died in 1920, was a German sociologist, philosopher and political economist who's ideas were for a significant part responsible for originating the field of sociology as it's currently practised. Weber argued that a rational system of law played a crucial role in the economic development of the Protestant west by allowing individuals to order their transactions with some predictability. He was interested in understanding what led to the development of capitalism as an economic system, and what made it take hold in some places rather than others. Cultural differences were one factor, and he discussed them a lot.

Another factor was the presence of rational law or what has come to be known as The Rule of Law. In his classic work, The Morality of Law, the legal philosopher Lon Fuller identified eight features central to regulation by law. They're helpful for understanding exactly how law might help structure and order society.

features central to regulation by law
(1) Fuller said that the law should be general so as to avoid ad hoc and inconsistent adjudication of particular cases. So the law should be stated in a general way, not singling out individual people. (2) The law should be publicly promulgated and widely publicised, so that everybody knows what the rules of law are.

(3) The law should be clear, and intelligible, so that all can understand what's legally allowed and what's legally prohibited. (4) The laws should apply only to conduct that takes place after they are passed. So, after a law is put in place, it applies to conduct going forward.

(5) The laws should not contradict each other, so that it's possible for a person to obey all of the laws at the same time. (6) The law should not require to do something impossible. (7) The law should be relatively stable so as to allow us to plan our lives in accordance with them.

law and economics
(8) Finally, there should be a good match between what the State says the law is and what is actually enforced. There should be no mismatch between the law in the books and the laws that actually is carried out in practise.

One suggestion made by some, particularly those who embrace the law and economics school of thought. is that if a legal system exhibits these eight features of law, then there'll be significant social and economic benefits that follow, so the suggestion is that this happens because of the helpful order and rational plan set out, and that's even leaving aside the details, the content, the specifics of the laws themselves. There's something just about the general phenomenon of a legally ordered society that's beneficial.

legal content
Others have suggested that although these features are important, the content matters as well. These eight features do not block bad laws or laws that wouldn't really produce good economic and social relations with each other. In particular we may need laws governing property ownership, contractual arrangements, what constitutes crime, taxation, and redistributive policies. There must be some specifics with respect to all of those.

And then there must be institutions that will enforce the specifics and force these and other laws. There need to be specific kinds of laws in order to generate and harness the benefits of division of labour, free markets, and other benefits of structured social interaction that are made possible by law.

legal content
Some have focused on the importance of private property ownership and protection of private property rights by institutions of the state. They focus on the way private property is supported by courts, police and prisons, so that violators of property rights actually are punished.

Others have focused on the importance of freedom of contract, and of legal institutions that will enforce contracts, so that they're worth more than the paper they're printed on. You can have a perfectly fine contract but if there's nothing backing it, then it's hard to see how it's much different than just having a promise or an agreement between two people.

legal content
For example, imagine that I want to build a house. There are lots of materials that I need to do this and it might be that you have some of them and another person Rose might have some other materials as well as a third person Dmitri and a fourth and final person, Indira, has the rest. So, to actually build the house then, I need to work out some agreement with Rose, Dimitri, Indira, and you. It might be that there's no point in even getting started building the house unless I have an agreement with all four.

Without a system of contract law, I might make informal agreements, and if everyone is part of a small, tight-knit community, I might know something about the reputations of all involved, about their trustworthiness and reliability of providing materials on time. Still this is somewhat of a risky venture, even if I know all four.

So, what if I've got half of the house built and then Dmitri tells me, he's out of his materials and won't be getting any more supply. If he's the only local supplier, it looks like all of my efforts might be wasted. And it gets riskier still if I don't know the others. They might be offering me a good deal or they might be trying to swindle me. Maybe they'll wait until I'm halfway done with the project and then dramatically raise their prices, leaving me in a bad spot. Either I can pay this high extortion level price or waste all the effort I've already put in place.

legal content
So, depending on my tolerance for risk, and my need to build the house, I might decide it just isn't worth the risk, even if I would benefit from actually building the house, or if members of my community would benefit from the increase in housing supply. If there's a system of contract law with rules concerning breach of contract and an appropriate level of damages for breach of contract, and if there's a well organised and reliable enforcement mechanism that will hold people accountable for breaching contracts, and require them to actually pay those appropriate damages, many of the concerns can be lessened.

The five of us can draw up a contract with details concerning the price, the specific material's, the time at which they will be delivered. And if the level for damages are specified appropriately, either in the contract or in the background law, then this would be a real support for the agreement. Exactly how to specify the damages is something that's the subject of much discussion within the field of contract law. Once those issues are fixed then the house building venture can be made much less risky.

A similar story might be told with respect to property rights. I may be less inclined to invest my time and efforts in building a house or undertaking some other project if I will have no rights to the finished product. Of course, I might be motivated just by good will, but if I want to get some benefit from it, either by living in it myself or by selling it to someone else or giving it to someone else in exchange for something, I need to have some rights to the finished product.

bundle of rights
Property rights are often described as a bundle of rights. For example, it's the right to use the house, the right to exchange or transfer the house to someone else, the right to exclude others from using the house, the right to let some particular people use the house, the right to refuse to sell or rent the house, and even perhaps the right to destroy the house.

I might still have an incentive to build the house even if by building it I don't get all of these rights in the bundle with respect to the house. At least it's plausible that the incentives to build the house will be very different if I don't have any of these rights with respect to the house upon its completion, especially if it's an economic venture of some sort.

This is a point that's been pressed by economists and people defending capitalist systems of private property for a long time. As with contracts, the rights matter in this way, only if they're going to be supported in some way. It really will make a difference if there's some kind of legal institution that will both help specify the details of these rights, and what I have a right to in a particular case, and which will help me enforce these rights against others who might violate them.

We can see a clear role for the state as an enforcer either of contractual agreements and property rights. There are arguments stating that supporting property rights and contractual arrangements are not about promoting the general welfare through efficient exchange, innovation and social cooperation. Instead these arguments suggest that we have natural rights to property or to things that we have put our labour into, and so that the role for the state here is to protect our freedom or to ensure that justice is done, and that each of us gets what he or she deserves.

There seems to be a clear role for the state in promoting these kinds of exchanges and innovations just from a perspective of promoting the general welfare and promoting economic and social cooperation in a community. We can see even the creation and regulation of money as another way in which the state helps ease exchange and offer mutually beneficial transactions. Even having an official currency helps to support economic transactions and that's something the state can do.

One important set of questions in legal and political philosophy concerns the details of what these laws about contracts and property rights should actually be. There are a bunch of questions we might ask. Do we want to set a limit on how much property one person can have a right to? Should these property rights expire after some period of time or nonuse? Should we allow property rights to be transferred from one generation to the next? A lot of the incentive arguments suggest that we care about our children and the generations after us as and that's one reason we work hard. But then there become all kinds of problems in terms of inequalities with respect to wealth and unfair starting points.

restrictions on property rights
Is there a reason to limit the number of rights that we get in the bundle. Are there some of those rights, some of the bundle that we should really not include? Should we provide for some communally owned property? On the contract side, should we take into account the bargaining position of the parties entering into a contract when we think about either how to interpret it or how to enforce it? In general, how should we interpret ambiguous, or vague contracts? Are there some contracts that are so morally troubling or so unfair that the law shouldn't be used to help enforce them? This was a big debate in countries that had slavery.

One thing it's worth mentioning with respect to this and other arguments about the role of the state in promoting welfare and happiness. Good laws and policies can promote happiness and welfare but bad laws and policies in this domain might well undermine or impede happiness and welfare. Some think this is what has happened with laws allowing for unlimited ownership of private property and relatively few limits on contracting that essentially caused the rich to get richer and the poor get to poorer, and so we don't get all the presumed benefits. These are large debates and it's worth noticing the benefits of property and contract law, as well as the potential concerns.

roles of the state
So far, several different responses have been considered to the question, why should we have a state? All of them centred around the role the state might play in improving the welfare or happiness of its subjects. There are arguments about the state's role in keeping us out of the state of nature, the state's potential role in preventing harm from one person to another, the state's role in solving collective action problems, in preventing freeriding, and providing public goods.

There are also arguments concerning the way in which the state might do this in detail through legal structure and enforcement of property rights and contract law. Epistemic arguments show why democratic governments in particular might be good at promoting welfare. These arguments highlight the role that discussion, deliberation, cognitive diversity, and aggregating opinions might play in producing good results.