1. 1 A GAPE, THE G OLDEN R ULE, THE R ULE OF L AW, AND W EALTH M AXIMIZATION : A LL THE S AME I DEA ? January 28, 2014 Eric Rasmusen, Dan R. and Catherine M. Dalton Professor, Kelley School of Business, Indiana University, erasmuse@indiana.edu. http://rasmusen.org/papers/agape-rasmusen.docx.erasmuse@indiana.edu Agape-based law would look much like our own, a form of the “rule of law”. Like much but not all human law across history this is a rough approximation to rules achieving what economists call “wealth maximization”--- rules that best enable the satisfaction of human desires.

2. What does agape mean? 2 Agape is the Greek word commonly translated as “love” in the New Testament. What would law look like if it were based on agape? For this paper, take agape to be an attitude, to be willed not felt, a value that shades over into esteem and respect and is quite different from philia and eros, affection and desire. The widely held belief that agape is unconditional love seems to me unsupportable; if love is willed, it can be made conditional, though it need not be. It is really the emotions, philia and eros, that are unconditional. “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the first and great commandment. And the second is like unto it, Thou shalt love thy neighbour as thyself. On these two commandments hang all the law and the prophets.” ( Matthew 22)

3. Wealth Maximization 3 “Wealth maximization,” “economic efficiency”, “surplus maximization”, “value maximization”, and “the Kaldor-Hicks criterion” are variants on the idea of putting good to use so that no two people can be made better off by trading some of their goods for the other person’s. The values people place on their goods result in market prices, and if wealth maximization is achieved, the dollar value people in aggregate put on their goods is the highest possible. This is different from materialism.

4. Motivations of Christians and Unbelievers 4 Wealth maximization is furthered by the Rule of Law, which in turn is close to the idea of Equality under the Law implied by the Golden Rule. Much of it is simply enforcement of property rights and contracts. That’s what most rule-of-law legal systems have done, roughly, including current US law. David Friedman: “What we call principles of justice may actually be rules of thumb for producing an efficient outcome.” Motivations would differ somewhat in criminal law, where both Christian and unbeliever would want to provide good incentives to Make and not Take but the Christian would also wish to reduce the sin, and thus the punishment, of the unbeliever. Works cannot save, but bad works are noted on Judgement Day, as well as being directly displeasing to God.

5. Criminal Law 5 Think about it for Christians—Holmes’s “Good Man”. Then, for unbelievers--- Holmes’s “Bad Man”. In both cases, agape-driven (because unbelievers can follow agape too), criminal law should provide deterrence, incapacitation, and stigmatization (e.g. we know to give the day-care job to somebody else, not to the child molester). Retribution is generally satisfied by deterrent punishments. The Christian will add to this the desire to reduce sin, both to please God and to reduce the regret (if he is saved) or punishment (otherwise) of the criminal.

6. The Role of the Church: The Errant Deacon 6 A story I heard from reliable sources. A church deacon smashed up an abortion clinic late one night and was arrested. His church elders chewed him out, removed him as deacon, and told him to plead guilty and pay restitution. The church also made plans for his family, got him a lawyer, and led him through all the criminal procedures. The judge who sentenced him said that he’d never encountered a church response like that. Instead, churches either: 1. Turned a blind eye and pretended their member hadn’t done anything. 2. Had nothing to do with the member and acted as if they didn’t know him.

7. Morals Law 7 Moral law might be an exception, though unbelievers might well share most of the Christian moral code regarding things such as drug use, homosexuality, adultery, divorce law, cruelty to animals, and gambling, depending on the time and place.

8. Religious Law 8 Religious law is a clear exception. Christians should favor laws against blasphemy if they love God. Christians should favor encouraging conversion if they love the person. If missionaries are good, so is compulsory Bible study.

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12. Wealth Maximization: Which House? 12 Consider my brother Andrew. He is an investment advisor and hence rich. He owns a house in Marina Del Rey quite close to the ocean. There are houses much further from the ocean, but bigger. Suppose his co-worker Smith and he have agape for each other. Andrew would pay 3 million for the ocean house and 1 million for the big house. Smith would pay 1 million for the ocean house and 3 million for the big house. If Andrew lives in the big house and Smith in the ocean house, economic wealth is $2 million. If they trade, wealth rises to $6 million.

13. Merchant of Venice: Sermons 13 NERISSA: They are as sick that surfeit with too much as they that starve with nothing. It is no mean happiness therefore, to be seated in the mean: superfluity comes sooner by white hairs, but competency lives longer. PORTIA: Good sentences and well pronounced. NERISSA: They would be better, if well followed. PORTIA: If to do were as easy as to know what were good to do, chapels had been churches and poor men's cottages princes' palaces. It is a good divine that follows his own instructions: I can easier teach twenty what were good to be done, than be one of the twenty to follow mine own teaching. The brain may devise laws for the blood, but a hot temper leaps o'er a cold decree: such a hare is madness the youth, to skip o'er the meshes of good counsel the cripple.

14. Confucius 14 2.3 The Master said: Guide them with policies and align them with punishments and the people will evade them and have no shame. Guide them with virtue (de) and align them with li and the people will have a sense of shame and fulfill their roles. 12.18 Ji Kangzi was concerned about bandits, and asked Confucius about it. Confucius replied, “If you yourself were truly not covetous, though you rewarded people for it, they would not steal.” 12.19 Ji Kangzi asked Confucius about governance, saying, “How would it be if I were to kill those who are without the Dao in order to hasten others towards the dao?” Confucius replied, “Of what use is killing in your governance? If you desire goodness, the people will be good. The virtue of the junzi is like the wind and the virtue of common people is like the grasses: when the wind blows over the grasses, they will surely bend.”

15. Han Fei, ”Five Vermin: A Pathological Analysis of Politics 15 “Now there are not more than ten truly merciful and faithful men in this country, whereas there are hundreds of official posts. So if only merciful and faithful men are selected for public service, the candidates will not be sufficient for filling all the official posts. In that case, those who maintain order would be few while disturbers would abound. Therefore, the way of the enlightened lord is to unify laws instead of seeking for wise men, to solidify policies instead of yearning after faithful persons. In consequence, as long as laws do not fail to function, the body of officials will practise neither villainy nor deception.” ”.

16. Han Fei 16 “For such reasons, it is a common trait of the disorderly state that its learned men adore the ways of the early kings by pretending to benevolence and righteousness and adorn their manners and clothes and gild their eloquent speeches so as to cast doubts on the law of the present age and thereby beguile the mind of the lord of men…”

17. David Friedman, Law’s Empire, chapter 2, 17 As we develop the economic analysis of law we will observe a surprising correspondence between justice and efficiency. In many cases, principles we think of as just correspond fairly closely to rules that we discover are efficient. Examples range from "thou shalt not steal" to "the punishment should fit the crime" to the requirement that criminal penalties be imposed only after proof beyond a reasonable doubt. This suggests a radical conjecture—that what we call principles of justice may actually be rules of thumb for producing an efficient outcome, rules we have somehow internalized. http://www.daviddfriedman.com/Laws_Order_draft/laws_order_c h_2.htm.

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19. xcvbxcvbxvcbxvb 19 BASSANIO: Yes, here I tender it for him in the court; Yea, twice the sum: if that will not suffice, I will be bound to pay it ten times o'er, On forfeit of my hands, my head, my heart: If this will not suffice, it must appear That malice bears down truth. And I beseech you, Wrest once the law to your authority: To do a great right, do a little wrong, And curb this cruel devil of his will. PORTIA: It must not be; there is no power in Venice Can alter a decree established: 'Twill be recorded for a precedent, And many an error by the same example Will rush into the state: it cannot be.

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29. Criminal Law Questions 29 1. What about the victim’s desire for revenge? Should it be treated at legitimate? No, probably. No victims’ rights stuff. What would stoke bitterness more? 2. What about third parties’ desire for retribution? Should it be treated at legitimate? Yes. 3. What about pardons? They are OK. Political pressure, so not quite Rule of Man. Agape is the Greek word commonly translated as “love” in the New Testament. What would law look like if it were based on agape? For this paper, take agape to be an attitude, to be willed not felt, a value that shades over into esteem and respect and is quite different from philia and eros, affection and desire. The widely held belief that agape is unconditional love seems to me unsupportable; if love is willed, it can be made conditional,though it need not be. It is really the emotions, philia and eros, that are unconditional.

30. Questions for you 30 1. Any suggestions for a new title? 2. Any suggestions for a publication outlet? 3. How can I make this paper more coherent? 4. How should I present the idea of surplus maximization/wealth-maximization/efficiency to an audience of theologians and law professors?