My previous post explored the first of three passages in The Wealth of Nations in which Adam Smith explicitly refers to the concept of probabilty. Today, I want to discuss another such passage: the retaliatory tariff passage in Book IV, Chapter 2 of Smith’s magnum opus:
“There may be good policy in retaliations of this kind, when there is a probability that they will procure the repeal of the high duties or prohibitions complained of. The recovery of a great foreign market will generally more than compensate the transitory inconveniency of paying dearer during a short time for some sorts of goods. To judge whether such retaliations are likely to produce such an effect, does not, perhaps, belong so much to the science of a legislator, whose deliberations ought to be governed by general principles, which are always the same, as to the skill of that insidious and crafty animal vulgarly called a statesman or politician, whose councils are directed by the momentary fluctuations of affairs. When there is no probability that any such repeal can be procured, it seems a bad method of compensating the injury done to certain classes of our people, to do another injury ourselves, not only to those classes, but to almost all the other classes of them. for that alone would seldom affect them considerably, but some other manufacture of theirs.” (WN, IV.ii.39, p. 468, my emphasis)
In other words, whether country A should impose a retaliatory tariff on country B as a strategic device to induce the repeal of country B’s tariffs depends on the probability that such a retaliatory tariff will, in fact, succeed in persuading country B to repeal its tariffs. Common sense, right? No, it’s more than that, for Adam Smith is making two deeper points here. One is that law and politics is fundamentally a probabilistic game. Indeed, one of the most important lessons of Smith’s works is that new laws, no matter how well-intentioned, will always produce unforeseen consequences.
More importantly, this observation about the probabilistic nature of law and politics leads us directly to Adam Smith’s second major insight in the retailiatory tariff passage quoted above: Who is in the best position to calculate what the relevant probabilities are? Who decides? Also worth noting here is that — regardless of what we make of Smith’s distinction between skill and science, i.e. between “the skill of that insisdious and crafty animal vulgarly called a statesman or politician” and “the science of the legislator”, to be more precise — Smith’s “who question” is, at bottom, a normative question: Who should decide?
This insight, in turn, brings me back to my days as a young assistant professor of constitutional law at the Pontifical Catholic University of Puerto Rico. When I began teaching “conlaw” in 1998, one of the law review articles that most influenced my thinking about my subject was “Who Decides?” by Paul Brest (pictured below), who I consider one of my intellectual mentors. Alas, I am unable to find an ungated or free version of this paper, so I will summarize it here. In brief, one of the big questions in constitutional law is, How should we interpret our nation’s founding charter? Does its meaning change over time (e.g. the “Living Constitution”), or is the meaning fixed and stable (e.g. Originalism)? Professor Brest, by contrast, flipped the script. He asked a totally different question: Who gets to decide what the meaning of the Constitution is? His main point was that judges are not the only interpreters. Members of the legislative and executive branch also have a non-delegable duty to interpret the Constitution when they are enacting and enforcing laws.
Now, isn’t Adam Smith saying the same thing about law and politics more generally? To sum Smith up: (1) the desired effects of new laws are probabilistic because of their unintended consequences, and more importantly, (2) it matters who gets to decide or calculate what these probabilites are in the first place?






