Opinio Juris

Well, gentle readers, my week of guest blogging at Opinio Juris is coming to an end. I've had a wonderful time, and certainly allowed my indulgences to get indulged in picking topics to write about. Hope you haven't found it too far adrift from international law. But I want to thank all the folks at Opinio Juris for inviting me to post here. They are all wonderful, and this is one of my favorite blogs. I hope everyone has a lovely summer. I plan to spend mine writing - minimizing the travel and trips, just one board meeting in Europe and an author's conference. I'm even skipping the trip with my wife and daughter to Guatemala in order to sit home and write. I'll occasionally post stuff up to my blog but mostly I'll be working on stuff for publication in journals and book chapters and the like. My best wishes for a lovely summer, and thanks to Opinio Juris.

Ken

The Copenhagen Consensus is the brain child of self-described 'skeptical environmentalist' and statistician Bjorn Lomborg; housed at the Copenhagen Business School, it seeks to apply cost benefit analysis to the world's leading problems in development, poverty, the environment, etc., with the assistance of a range of leading economists, and come up with not just a list of issues, but a prioritized list of issues, showing how much money invested will lead to what kind of gains. It is controversial because Lomborg is controversial. I am generally a fan of the method and conclusions of the Copenhagen Consensus, but I imagine that among Opinio Juris readers that will be ... controversial.

An example of the kinds of recommendations made by the Copenhagen Consensus can be found, for example, in a May 22, 2008 Wall Street Journal article by Lomborg, "How to think about the world's problems."

Research for the Copenhagen Consensus, in which Nobel laureate economists analyze new research about the costs and benefits of different solutions to world problems, shows that just $60 million spent on providing Vitamin A capsules and therapeutic Zinc supplements for under-2-year-olds would reach 80% of the infants in Sub-Saharan Africa and South Asia, with annual economic benefits (from lower mortality and improved health) of more than $1 billion. That means doing $17 worth of good for each dollar spent. Spending $1 billion on tuberculosis would avert an astonishing one million deaths, with annual benefits adding up to $30 billion. This gives $30 back on the dollar.

Heart disease represents more than a quarter of the death toll in poor countries. Developed nations treat acute heart attacks with inexpensive drugs. Spending $200 million getting these cheap drugs to poor countries would avert 300,000 deaths in a year.

A dollar spent on heart disease in a developing nation will achieve $25 worth of good. Contrast that to Operation Enduring Freedom, which Copenhagen Consensus research found in the two years after 2001 returned 9 cents for each dollar spent. Or with the 90 cents Copenhagen Consensus research shows is returned for every $1 spent on carbon mitigation policies.

At the core of this is the method of cost benefit analysis, and at the core of that is the necessity of comparing apples to apples, not apples to oranges. In order to do that, CBA expresses different costs and benefits in monetary terms, as Cass Sunstein explains and defends, with limitations, most recently in his book Worst Case Scenarios. These kinds of comparison questions become more important as it looks like the comparisons inevitably do involve apples and oranges:

Four new civil wars are expected to break out in the next decade in low-income nations. Compared with no deployment, spending $850 million on a peacekeeping initiative reduces the 10-year risk of conflict re-emerging to 7% from around 38%, according to Copenhagen Consensus research by Oxford University's Paul Collier.

Because of war's horrendous and lasting costs, each percentage point of risk reduction is worth around $2.5 billion to the world. Thus, spending $850 million each year to reduce the risk of conflict by a massive 30 percentage points means a 10-year gain of $75 billion compared to the overall cost of $8.5 billion, or $9 back on the dollar.

In other areas, too, sound economic analysis suggests solutions that we may at first find unpalatable.

Poor water or sanitation affects more than two billion people and will claim millions of lives this year. One targeted solution would be to build large, multipurpose dams in Africa.

Building new dams may not be politically correct, but there are massive differences between the U.S. and Europe – where there are sound environmental arguments to halt the construction of large dams and even to decommission some – and countries like Ethiopia which have no water storage facilities, great variability in rainfall, and where dams could be built with relatively few environmental side effects. A single reservoir located in the scarcely inhabited Blue Nile gorge in Ethiopia would cost a breathtaking $3.3 billion. But it would produce large amounts of desperately needed power for Ethiopia, Sudan and Egypt, combat the regional water shortage in times of drought, and expand irrigation. All these benefits would be at least two-and-a-half times as high as the costs.

On balance, I favor this kind of cost benefit analysis, even if only used in a weak sense to produce not a rule of decision, but simply information that a decisionmaker should not be without. And in many areas, I think it ought to provide the rule of decision as well.

I am also interested, however, in the approach the Copenhagen Consensus (with its emphasis on monetizing costs and benefits and, as a final result, a methodological emphasis on what to spend money on and how much) takes with respect to international development. It does not, as Ronald Bailey notes in this article, take into account the institutional issues of international development - the ones that, for example, William Easterly puts at the forefront of why development in the form of spending money has not produced long term economic growth. The Copenhagen Consensus, as the article notes, has not managed to address corruption, governance, and the institutional infrastructure questions of development, in part because of a methodological preference to focus on money:

During the question and answer period, I noted that the CC08 process looks to shower money on problems, but does not address many of the institutional impediments for making sure that the money would actually be spent effectively. In fact, I suggested, the reason poor countries are poor is because they do not have effective governance and economic institutions. Lomborg responded that of course institutions are important, but the Copenhagen Consensus was focusing chiefly on "what can money do to help." He pointed out that the Copenhagen Consensus conference in 2004 considered corruption as an issue, but couldn't figure out how spending money would be able to help fix that problem. Earlier Prime Minister Rasmussen correctly observed, "No problem has ever been solved only by throwing money at it. We must prioritize." Unfortunately, as New York University development economist William Easterly has documented, the West has thrown $2.3 trillion dollars in aid to poor countries during the past five decades without much to show for it.

Lomborg further suggested that institutional analysis could be implicit in deciding how to prioritize the challenges. For example, if the experts decide that corruption or lack of private property rights would get in the way of effectively deploying money to solve a specific problem, they could give it a lower priority.

But is Lomborg's last suggestion the right way to deal with these kinds of institutional blockages? Wouldn't the more exact method be instead to seek to quantify how much investment would be required in order to address, say, institutional corruption or weak governance, and include that in the calculation? Certainly that would alter the ordering of priorities. Of course, this draws in the limits of monetization in a different way - no amount of money can necessarily solve governance issues. So perhaps the right way to express this problem would be to include a governance factor, a multiplier that could be used to discount the expected return taking weak governance into account. At some point, of course, this becomes an exercise more and more disconnected from reality, so perhaps the best method is simply to separate out the quantifiable from the qualitative.

The institutional question, it has long seemed to me, is unavoidable. Perhaps the most important study in development economics I have read in several years is the landmark World Bank study - more important than the Bank seems to understand - Where is the Wealth of Nations? (available as pdf here), which argues seeks to rank countries by economic growth generated by "intangible capital" - the value of "intangible" institutions such as neutral reliable law courts, etc., etc. The same think tanker, Ron Bailey, who asked the question above in the Copenhagen Consensus, has also summarized the World Bank study as follows:

Why are Americans so well off? It's not just because of America's fruited plains and its alabaster cities. In fact, it turns out that such natural and man-made resources comprise a relatively small percentage of our wealth.

The World Bank study begins by defining natural capital as the sum of nonrenewable resources (including oil, natural gas, coal, and mineral resources), cropland, pastureland, forested areas, and protected areas. Produced capital is what many of us think of when we think of capital. It is the sum of machinery, equipment, and structures (including infrastructure) and urban land. The Bank then identifies intangible capital as the difference between total wealth and all produced and natural capital. Intangible capital encompasses raw labor; human capital, which includes the sum of the knowledge, skills, and know-how possessed by population; as well as the level of trust in a society and the quality of its formal and informal social institutions.

Once the analytical framework is set up, what the researchers at the World Bank find is fascinating. "The most striking aspect of the wealth estimates is the high values for intangible capital. Nearly 85 percent of the countries in our sample have an intangible capital share of total wealth greater than 50 percent," write the researchers. They further note that years of schooling and a rule-of-law index can account for 90 percent of the variation in intangible capital. In other words, the more highly educated a country's people are and the more honest and fair its legal system is, the wealthier it is.

Let's consider a few cases. The country with the highest per capita wealth is Switzerland at $648,000. The United States is fourth at $513,000. Overall, the average per capita wealth in the rich Organization for Economic Cooperation Development (OECD) countries is $440,000. By contrast, the countries with the lowest per capita wealth are Ethiopia ($1,965), Nigeria ($2,748), and Burundi ($2,859). In fact, some countries are so badly run, that they actually have negative intangible capital. Through rampant corruption and failing school systems, Nigeria and the Republic of the Congo are destroying wealth and ensuring that they will be poorer in the future.

Perhaps one way to think about what it means for the average wealth in the United States to be $513,000 per capita is to think about how much income that wealth produces annually. Not surprisingly, countries with high levels of wealth per capita also produce high levels of income per capita. For instance, in purchasing power parity terms, the United States per capita income is $41,500 annually. This yields roughly an 8 percent return on average wealth.

By comparison, the World Bank study finds that total wealth for the low income countries averages $7,216 per person. That consists of $2,075 in natural capital; $1,150 in produced capital; and $3,991 in intangible capital. By contrast, the average wealth per capita in OECD countries of $440,000 consists of $9,531 in natural capital, $76,193 in produced capital; and a whopping $353,339 in intangible capital.

So if every American has $513,000 in capital, where is it? The vast majority of it is amassed in our political and economic institutions and our educations. The natural wealth in rich countries like the U.S. is a tiny proportion of their overall wealth—typically 1 to 3 percent—yet they have higher amounts of natural capital than poor countries. Cropland, pastures and forests are more valuable in rich countries because they can be combined with other capital like machinery and strong property rights to produce more value. Machinery, buildings, roads, and so forth account for 17 percent of the rich countries' total wealth. And 80 percent of the wealth of rich countries consists of intangible capital. "Rich countries are largely rich because of the skills of their populations and the quality of the institutions supporting economic activity," argues the World Bank study.

Memorial Day for a long time in my life didn't mean much of anything; I came of age in the 1970s just slightly too late for the Vietnam war, remembrance of which was all too weird for a long time, and anyhow there weren't that many wars going on, at least not ones that I was aware of. So it is only, really, with the Iraq and Afghanistan wars that Memorial Day turns into a combination of remembrance and picnic. We're holding a neighborhood picnic for a family next door moving out of state; I am shortly going to light the charcoal and start the grills. I hope all of you Americans celebrating this holiday do a little of both, remembrance and celebration, and I hope everyone has a wonderful day.

2

I recall how surprised I was, a few Novembers ago, to see my London friend, John, show up at a meeting in New York with a small cloth poppy in his lapel. Armistice Day. The poppy had belonged, I think he told me, to his grandfather or great grandfather. I didn't think that people of the cosmopolitan class, equally at home in London, New York, Nairobi, Sudan, Rio, went in for that sort of thing. But this friend of mine is equally cosmopolitan in the sense of Peter's post-national-identity book, but also an English left patriot, in the great tradition of George Orwell. It has an equivalent in the United States, the tradition of what my friend Larry Solum once called the "Left Burkeans" - the late Christopher Lasch, for example. There is indeed a distinction between patriotism, nationalism, and national chauvinism. But the gesture of the poppy went back to a time when the First World War was still known as the Great War.

The Great War in American memory is the Civil War. It is what this holiday brings home to me - Gettysburg and the Second Inaugural - and the latter, for me, especially. I grew up in California at precisely the moment of the collapse of public school standards in a then-radical public high school in a college town; I was rather left to fend for myself when it came to the humanities: my primary high school history course was not on American history, but covered world revolution: the Russian Revolution, the Chinese revolution, and Vietnam. I still have never read more than a little Dickens or Austen or Melville or even very much Twain (still, I read lots of French, German, Russian, and Japanese literature from high school, and I think it more than compensated, actually). But not much American of British literature. In history, at seventeen, I could tell you everything you ever wanted to know about the KMT, had read from Lenin, Trotsky, Marx and Engels, Rosa Luxemburg, and the New Left, but had no clue about the Civil War. And living in Los Angeles, there were not a lot of local geographical references to it. It wasn't until after law school, living on the East Coast, that I started seriously to read American history and began to appreciate the centrality of the Civil War.

3

I am not a sophisticated constitutional theorist or even an unsophisticated one. I do not hold to the "living constitution" as the ideal form of interpretation, nor do I hold to any strict originalism. Without any particularly persuasive way of defending it, I take roughly Lincoln's view that the constitution is to be interpreted through the lens of the Declaration of Independence and, I would add to that, a handful of other documents that all derive from Lincoln himself and the re-birth of the Republic in the Civil War: of those two, Gettysburg, the First Inaugural, and above all the Second Inaugural are canonical in a literal sense. I understand that today, if you are someone like me who does think that not everything can be interpreted every which way, but also find yourself in a period in which common standards of interpretation have essentially disappeared, it is dangerously open ended to allow anything other than some form of originalism. Introducing the Declaration of Independence could still be understood as not completely open-ended, in Lincoln's day and in his understanding of it: that is hardly the case in our day. But I'm not a judge and I'm not even a con law professor, so in my entirely unofficial way, I feel quite happy to understand the constitution in the way that makes the most sense to me: in light of the Declaration, but also in light, not of an endlessly accumulating new body of canonical materials, but a body that derives from a specific historical- and, we pray, non-recurring- circumstance, the war that constitutionally remade the United States.

What, then, of the Second Inaugural Address? There are two wonderful books devoted wholly to the Address – Ronald C. White’s Lincoln’s Greatest Speech: The Second Inaugural and James Tackach, Lincoln’s Moral Vision: The Second Inaugural Address. Both books are from 2002; I reviewed them along with several other Lincoln books for the TLS in 2003. But while each of those books devotes itself extensively, and for clear reasons, to the question of slavery and the war, neither book gives much examination either of the way that war is seen as such in the Address or the ethics of war as such implicit in the Address. Let me make three brief points.

4

First, the conception of war in the Second Inaugural, reflecting Lincoln’s hard won experience in bloody and prolonged war, has a remarkably Clausewitzean sense to it. I do not mean by this the most famous passage of Clausewitz, war the continuation of politics by other means. I mean the discussion in Clausewitz of ‘friction’ in war and, as a consequence, the inability to control where war will go, how its aims will shift, and how the unleashing of this antinomy of animal passions and the great rational machine of armies leads into directions not necessarily foreseen. The Address expresses a dual sense of dolorous wonderment that the conflict spilled over, in aim and method, so far beyond anything either side contemplated.

Second, the Address seeks to steer a difficult path between moral absolutism about the war, and pure relativism about its rights and wrongs. In referring to absolutism, the issue is not only the Northern abolitionists for whom the responsibility for the war was entirely, on account of slavery, upon the South, and to whom Lincoln addresses himself in some of the most explicitly religious parts of the Address, putting the moral burden of slavery upon the Republic as a whole. It is, in addition, a particular ethics of war, apart from slavery alone, that, conceiving of natural law and natural justice in absolute terms, saw both slavery and secession as a violation of natural law in which the war, and whatever was part of it and went with it, was simply the natural order of things. This was Sherman’s view, expressed in his Memoirs (and very, very different from the meaning usually ascribed to his famous ‘war is hell’ phrase), in which his own actions were expressed as something very close to physics, the opposite and equal moral reaction that restores the natural order of things. That way leads to a war without limits, in pursuit of a sort of ‘super-justice’, and Lincoln is concerned to reject it.

Third, the Address raises, but then finally rejects, a form of moral relativism that – noting that men on each side invoke the same God and read the same Bible – can lead either in the direction of moral quietism or war without limits. After all, if there are objective no rights or wrongs, just relations of power being battled out between the sides, then why involve oneself at all? But ominously, there is another direction relativism can take, specifically as an ethics of war: if there are no objective rights or wrongs in war, then it is simply a matter of convention and power, and I may as well impose my will if I am able to do so. That way, too, leads to the possibility of war without limits.

5

The Address rejects each of these, the moral absolutism and the varieties of relativism as an ethic of war. Instead Lincoln abjures his listeners to “finish the work we are in” – which meant still more bloody battles and many dead – before one could get to the part of the Address most remembered, “With malice toward none; with charity for all.” But this abjuration comes with a dual command: to finish the work we are in “with firmness in the right,” but also, not just as we see the right, or even as God sees the right, but “as God gives us to see the right.” It is a formulation that seeks to avoid either the assertion that one knows God’s will, or that one’s own will is enough, but which places a burden to seek to know God’s will – and to act on it, both firmly and yet with a certain moral modesty, without the claim of absolute moral knowledge because one cannot achieve certainty.

It is an ethic of war that begins, then, with a question logically prior to where most discussions of just war and war’s ethics begin. Instead of starting with the questions of whether resort to force is ever justified and how, or what the just conduct of war is, the Address begins with the question that, after so many dead, was uppermost in Lincoln’s mind: how to know if the work one was in was justified. Lincoln’s answer to this question relies upon God as the transcendental premise that allows both the possibility of objective moral knowledge about the rights and wrongs of war but also forces a certain modesty that precludes absolute knowledge of God’s intentions. Whether such an answer in the ethics of war is available to us in this secular age, I do not know. But we do not usually start with questions of absolutism and relativism, and the possibility of objectivity of moral knowledge, in just war theory. The Second Inaugural suggests that perhaps we should.