Christmas Haiku

I don't consider myself to be much of a poet, and I certainly don't have very much Christmas spirit, but some years back I wrote some funny haiku poems as a contribution to an evening of Christmas carols at a friend's party. I was so proud of my work that I kept them. I thought somebody else might get a chuckle out of them, so I'm posting them here. Perhaps next year I'll post my Christmas carol contribution to the same party, a stirring little ditty entitled "Good King Elvis" (sung to the tune of "Good King Wenceslas").

For those who are unfamiliar with the concept, the haiku is a Japanese poetical form, consisting of three lines of five, seven, and five syllables, respectively. I'm not sure that mine technically meet the classical standard in anything but metre. However, they do offer a rare glimpse into the dark and pitiless soul of The Spectacled Avenger.

Here's wishing you a tolerable Christmas and a New Year's Eve that you just can't seem to remember.

*****

I.
Mistletoe above.
Waiting, Ugly One puckers.
Sigh of the condemned.

II.
Child rips gift's wrapping,
Of latest toy expectant.
Socks teach life's unfair.

III.
Tinsel's soft rustling,
Tree's final crashing to floor.
The silence between.

IV.
In puddle of sick,
Of turkey with whiskey mixed,
Uncle, peaceful, sleeps.

V.
Daddy disappeared.
Rotten stench from fireplace creeps.
"Santa's" corpse above.

VI.
Man to boss: "You suck!"
Pregnant silence deafens all
At office party.

VII.
Lipstick on collar,
Man shouts; house locks changed by wife.
Christmas lights mocking.

VIII.
Visa bill arrives.
Black emptiness in wallet.
Jesus too was poor.

IX.
With a will of steel,
New Year brings resolutions.
Fun from now till then.

X.
Like jungle creatures,
Red in tooth and claw we fight
For requested toy.

XI.
Overcrowded stores,
Sweating under winter coat.
Burdened by life's load.

XII.
Distant family meets.
Each professes love to all.
Knives in many backs.

Kant on Slavery

In his Metaphysics of Morals (1797), Immanuel Kant offered an explanation of why a theory of justice cannot allow me to sign a contract selling myself into slavery. The explanation goes something like this. A contract must be able to bind the parties to it. In order to be binding, a contract must apply to an agent who is capable of being bound, for example a legal person (specifically for Kant, a rational agent).

But when I sign a slavery contract, I am in effect signing away my status as a legal person, making myself instead the mere tool of another’s will. As soon as I am no longer a legal person, I can no longer be bound by a contract, any more than a baby or a rock or a goldfish can be bound by one. Therefore, paradoxically, as soon as I sign the contract making myself a slave, by that very act I make myself not bound by the contract which I have signed. To put it another way, the act by which I sell myself into slavery simultaneously releases me from slavery. As such, the contract is irrational.

Furthermore, because of the irrational nature of the contract, it cannot be construed as the expression of the will of a rational being. As such, it cannot be binding on a rational agent.

Kant’s explanation is based on the idea that moral agents — such agents being the only ones capable of being bound by contracts — have this status by virtue of being autonomous, able to adopt their own ends and employ the means at their disposal to achieve those ends. “Autonomy” implies the ability to give laws to oneself (from the Greek auto, “self” and nomos, “law”). And autonomy for Kant is in turn based in rationality, because while many creatures obey instincts and inclinations, only rational creatures are capable of autonomy, of giving and consciously obeying laws.

When I form a contract, it is as if I am binding myself to obey a law of my own choosing, which presupposes that I am rational and autonomous. But, as soon as I bind myself to a law that absolves me of this “law-abiding” nature, I dissolve the contract, because now there is only one party to the contract, namely the prospective slave-master. It is no longer a valid contract.

This is a very clever argument, no? And yet, there is something slippery, something (for lack of a better word) lawyerly and creepy about it. In a formal sense, it may be valid, and might satisfy a judge — assuming one’s legal jurisdiction didn’t already prohibit such contracts ab initio. The problem is that it doesn’t really coordinate with why we laypeople think that slavery is morally wrong.

The fact is, slavery contracts are unenforceable not primarily because of their lack of formal coherence, but because slavery is wrong. The US Civil War was not fought over the formal irrationality or the self-defeating nature of slave purchases, but because many in the United States found the practice repugnant and in violation of their sense of decency and justice. Slavery is unjust, and it would be unjust even if the slave were happy being a slave.

This becomes obvious when we turn from slavery contracts to forced slavery, which is the more common form in which we find the institution. Forced slavery is wrong, and I submit that most of us believe it would be wrong even when the master treats his slaves with all the kindness he would treat any other person. It is simply wrong to treat another person as if she were less than a person, as a thing, without a will, or desires, or projects of her own.

In his difficult and convoluted way I think Kant would agree with this assessment, and certainly something like it is implied in the rest of his moral theory, and in his notion of the Categorical Imperative (which I don’t have space to explicate here).

I believe there are at least two things lacking in Kant’s explanation. First of all, it focuses on the prospective slave’s end of the bargain. He claims that it is incoherent for him to try to become a slave. But what we’re looking for here is not incoherence, but rather wrongness. And wrongness lies on both sides of the bargain. It is wrong for the master to wish to make another completely subject to his will; in Kantian terms, it treats the other as a mere means to his ends rather than as an end in himself. Similarly, it is wrong for the slave to try to annihilate his own person in this way, for he owes the same respect to himself as a person that others owe to him.

Secondly, he’s trying to get away with a formal explanation of why slavery is wrong, without touching on the substantive issue. Formally speaking, the contract is “wrong” on rational grounds, because it is incoherent. But this doesn’t really touch on wrongness as such, otherwise it would be just as morally wrong of me to make errors in arithmetic or to violate the Law of Excluded Middle. The real wrongness of slavery, whether contractual or otherwise, is in its treatment of people as if they were mere things, rather than as persons with an inherent dignity and moral worth.

(I could, of course, say much more about the wrongness of slavery, but this will do for our purposes.)

Slavery is not a problem of contract law, nor is it a problem of logic. That would be too detached, too philosophical a way of viewing it. Rather, slavery is a moral wrong, pure and simple, and not only because of lack of consent on the part of the slave, for it is wrong even with consent. It is wrong for the slave to consent to it, and it is wrong for the master to accept such consent from others.

There is much in Kant’s moral theory that would allow him to argue as much, which is why it is disappointing to see so great a philosopher offering instead an argument more worthy of a mere lawyer.

Of Bees

December 10, 1755
Sir,

I read with great Interest, which you was so good as to share with me, your last, a Discourse of Dr. MANDEVILLE’s Fable of the Bees, one of the most virulent Libels ever made upon the Dignity of Mankind. I find myself in happy Agreement with every Sentiment you express’d therein, and wou’d only wish to subjoin a few Remarks on the Fable’s lack of Originality. For it is truly unoriginal, both in its Speculations, and in the very Conceit upon which it is based.

Indeed, the Comparison of Human Societies to that of Bees is an old Topick, and one which has never yet failed to occur to observant Minds since Honey began to be cultivated. VERGIL, gave over his fourth Georgick to a Rhapsody upon our Insect Brethren, meditating especially upon their natural Sociability, and thus deriving the opposite moral to that of Dr. Mandeville, for the Poet writes ut apium examina non fingendorum favorum causa congregantur, sed, cum congregabilia natura sint, fingunt favos, sic homines, ac multo etiam magis, natura congregat adhibent agendi cogitandique sollertiam [“as swarms of bees do not gather for the sake of making honeycomb but make the honeycomb because they are gregarious by nature, so human beings – and to a much higher degree – exercise their skill together in action and thought because they are naturally gregarious.” Our author has mistaken his sources, for this passage is taken from Cicero, De Officiis, I.157. Virgil did indeed, however, devote his fourth Georgic to bees. — Ed.].

‘Tis probable that Vergil was mining the same Vein as TULLY, according to whom itemque formicae, apes, ciconiae aliorum etiam causa quaedam faciunt. Multo haec coniunctius homines. Itaque natura sumus apti ad coetus, concilia, civitates [“these creatures, and also the ant, the bee, the stork, do certain actions for the sake of others besides themselves. With human beings this bond of mutual aid is far more intimate. It follows that we are by nature fitted to form unions, societies and states”, Cicero, De Finibus, 3.19.63 — Ed.].

The good Doctor, presumably following close upon the Leading Strings of his Tutor, Mr. HOBBES, wou’d have us to believe that Men, like Bees, gather together into Societies for Reason of mere Profit, and wou’d gladly ungather were it become profitable to do so, which is too absurd a Notion to stand in need of Refutation. Much more probable is it that we first gathered together out of a love of Company, and only later discover’d the more material Benefits of social Intercourse.

I cou’d give many more examples to show that Dr. Mandeville’s Conceit is not new. For instance, the noble Emperor ANTONINUS hath writ, “that which is not in the Interest of the Hive cannot be in the Interest of the Bee” [Marcus Aurelius, Meditations, 6.54 — Ed.]. Unfortunately, Dr. Mandeville’s Memory seems here to have failed him, for he unwittingly transpos’d this, and instead of deriving the Interest of the Bee from that of the Hive, found the Reverse, a much different Sentiment, and one of which the Emperor wou’d doubtless disapprove. However, as I have already noted, even the good Emperor himself is here only partly correct, for although what is good for the Hive is good for the Bee, that Good is not the sole Reason for the Bee’s remaining with the Hive.

Among the Moderns, the Comparison of Men with political Animals such as Bees and Ants is a well-trodden Road. The Reverend Dr. CLARKE, in his Discourse of Natural Religion accuses Hobbes of endeavouring to prove that War and Contention is more natural to Men, than to Bees or Ants [see Samuel Clarke, A Discourse concerning the Unchangeable Obligations of Natural Religion (1706), 6th edition, 1724, p. 87 — Ed.].

Against such a Claim, my Lord SHAFTESBURY accurately observes that “in the other Species of Creatures around us, there is found generally an exact Proportionableness, Constancy and Regularity in all their Passions and Affections; no failure in the care of the Offspring, or of the Society, to which they are united; no Prostitution of themselves; no Intemperance, or Excess, in any kind. The smaller Creatures, who live as it were in Citys (as Bees and Ants) continue the same Train and Harmony of Life: Nor are they ever false to those Affections, which move them to operate towards their Publick Good” [Shaftesbury, Characteristicks of Men, Manners, Opinions, Times (1711), Vol. II, p. 96 — Ed.].

Even so errant an Atheist as Mr. TINDAL, in all other respects such an Enemy to Decency, admits that Virtue is as natural to Man as it is to other sociable Creatures: “The Ants, notwithstanding they have Stings, are crouded in vast Numbers in the same Hillock; and, having all Things in common, seem to have no other Contention among them, but who shall be most active in carrying on the common Interest of their small Republick. And much the same may be said of Bees” [Matthew Tindal, Christianity as Old as the Creation (1730), p. 165 — Ed.].

And finally, POPE wisely advises us to

Learn each small people’s Genius, Policies;
The Ants Republick, and the Realm of Bees;
How those in common all their stores bestow,
And Anarchy without confusion know,
And these for ever, tho’ a Monarch reign,
Their sep’rate Cells and Properties maintain.
Mark what unvary’d Laws preserve their State,
Laws wise as Nature, and fix’d as Fate.
[Alexander Pope, An Essay on Man (1734), Epistle III, ll. 183-190 — Ed.].

This is a very different Lesson from the one Dr. Mandeville wou’d seem to have learned, and his failure to grasp what so many ingenious Authors have endeavour’d to teach him, I can only attribute to some natural Defect in his Morals or his Understanding.

I am, Sir, your humble Servant,

Jos. Darlington, Esq.
Darlington Close,
Horton-cum-Studley, Oxfordshire.

The Roman Republican Constitution: Some Lessons

In the beginning, Rome was ruled by kings. According to the account passed down to us from her historians, Rome expelled her last king in 509, after his son raped the wife of a leading Senator. The coup leaders immediately set up a new system of government, which they called the Republic, the res publica (literally, “the public thing”).

The break with the past was momentous. At the beginning of Book II of his history of Rome, which is the part of the narrative immediately following the expulsion of the king, Livy announces that “the new liberty enjoyed by the Roman people, their achievements in peace and war, annual magistracies, and laws superior in authority to men [my italics] will henceforth be my theme.” As far as he was concerned, the end of the monarchy represented the beginning of the rule of law.

The new political order was so different, and so much more ingenious than the old one, that I am inclined to think that there must be much more to the story than we have received from the Roman historians. Such a constitution does not spring up so quickly, without considerable forethought or precedent.

Imperium

It was not a complete break with the past. There were certain respects in which the original Roman Republicans built on what they already had. One of these was the notion of imperium. The word is often translated as “command”, and imperator, which has been received into English as “emperor”, originally meant something like “commander”. For the Romans, imperium meant something like the right not only to command others, but also the right to subject them to treatment not normally permitted by one citizen against another, up to and including putting them to death. Its origins were likely military: the right to put citizens to death originated in the right to dispose of the lives of troops in battle.

Under the old monarchy, only the king possessed imperium, which could devolve to military commanders in the camp if the king happened not to be leading the army himself. The king’s imperium was symbolized by the fasces, a long-handled axe surrounded by a bundle of rods (pictured). The rods represented the king’s power to inflict corporal punishment, and the axe represented his power to inflict capital punishment. It is from the fasces that we get the term “fascism”. Fasces were carried around by attendants of the king, called lictors.

However, what modern fascists have underemphasized was that there was another aspect to the symbolism of the fasces: the bundle of rods also represented the Senate and people of Rome (senatus populusque Romanus, abbreviated SPQR), by whose authority and in whose interests the ultimate power symbolized by the axe was supposed to be wielded. The rods had the physical effect of strengthening the axe’s handle, just as the authority (auctoritas) of the king was made more powerful when he acted with the support of the people. It was in part because the king lost sight of this source of his power and legitimacy that he was expelled.

Dividing the Imperium: Collegiality

While the Romans had gotten rid of their kings, they kept the notion of imperium, along with its symbolic manifestation in the fasces. But because experience had taught them that imperium could be dangerous when concentrated in the hands of one man, they split this power, originally between two elected men, the highest magistrates of the new Republic, the consuls. Later, they added a pair of magistrates below the consuls, the praetors. These also wielded the imperium, because of their function as administrators of the Roman legal system, and because they carried out the functions of the consuls while the latter were away from the city or otherwise incapacitated. It was hoped that this collegial method of dividing the imperium between pairs of magistrates would provide a check on its abuse.

Attenuating the Imperium: Annuality

In addition to collegiality, the exercise of imperium was constrained by annuality: magistrates were elected to their offices for a term of one year only, and they were not entitled to hold office again until a certain length of time had expired (although the length of this term varied throughout Republican history, and was often simply ignored). An additional aspect to the annual nature of the magistracies was the holder’s liability to prosecution for official malfeasance upon expiry of his term (but not during it). Thus, an official contemplating criminal misconduct (i) could be constrained by his colleague, (ii) could be prosecuted after his term expired, and (iii) could not hope to run again for office immediately in order to escape prosecution.

Negative Consequences of Limiting the Imperium

The early years of the Republic were tumultuous. First, there were many external threats. And although the kingly tyrants were expelled, a new tyranny was introduced, only this one was class-based. The aristocratic patrician class dominated the political system, and effectively closed it off to participation from the lower plebeian class. Indeed, so rigid was this hierarchy that not only could plebeians not hold office, but intermarriage with the patriciate was also prohibited. It was a caste system. The plebeians obviously resented this state of affairs, and thus began a long struggle that came to be called the “Conflict of the Orders”. It was complicated and had many stages to it, but the general trend was towards greater enfranchisement of the plebeians. However, the various political crises that arose along the way created emergencies that revealed the downside of limiting the imperium.

Every state learns sooner or later that extraordinary emergencies will occur, where the very survival of the state hangs in the balance, and where the solution appears to depend on a suspension or radical alteration of the constitution. Constitutional planners will attempt to make provisions for such contingencies, but unfortunately, the Roman Republican constitution at first did not. Over time it developed some tools for dealing with repeated emergencies. These solutions usually involved reversing one or more of the constitutional limitations of the imperium. This could be done either a) by doing away with collegiality or b) by extending the annual term limit. Each of these was tried, but not both at the same time (at least not until the late Republic when Sulla and then Julius Caesar did it, the latter effectively ending the Republic).

Suspension of Collegiality: The Dictatorship

The first crisis calling for an alteration of the constitution, caused by an external threat, came disconcertingly early, in 501 BC, only eight years after the founding of the Republic. The response to the crisis was to establish a new magistrate, the dictator. The dictator was an “extraordinary” magistracy, in that he was not regularly elected — in fact, he wasn’t elected at all. He was appointed by one of the presiding consuls on the advice of the Senate, to assume supreme powers (i.e. undivided imperium) for the protection of the state when it was under critical threat.

This would seem to be a re-institution of the monarchy, and indeed historians were ambivalent about the measure. On one hand, Livy saw little that was legally or politically problematic about the dictatorship, even implying that the position was provided for in the law of the Republic at its institution: “They chose men of consular rank, for so the law prescribed which had been passed to regulate the selection of a dictator” (2.18.6-7).

On the other hand, Dionysius of Halicarnassus, in his Roman Antiquities was suspicious of the dictatorship: “the senate resolved to introduce into the government a magistracy of equal power with a tyranny, which should be superior to all the laws…. The plebeians, being unaware of the real import of this proposal, ratified the resolutions of the Senate, although, in fact, a magistracy that was superior to a legal magistracy was a tyranny; and they gave the senators permission to deliberate by themselves and choose the person who was to hold it” (5.70.3ff)

Dionysius’ account is a bit overblown. What prevented the dictator from becoming a tyrant was the fact that his term of office was to last no more than six months. Thus, while the Romans put the imperium into one man’s hands, they even further limited the time limit during which he could hold it. In fact, it was commonly the custom that the dictatorship was held for less than six months, because dictators were customarily expected to abdicate power once the threat had been neutralized.

Until Sulla and Caesar in the first century BC, the last Roman dictator held office in 216 BC, after the disastrous defeat by Hannibal at Cannae. After 216 the Roman state found a different tool for dealing with crises, the so-called senatorial “final decree”, to be explained shortly.

Suspension of Annuality: The Proconsulship

As the Romans expanded their territory, the consuls, in their role as commanders-in-chief, found themselves fighting wars in far-off provinces. Such wars often lasted more than a single campaigning season, and it became inconvenient or even disastrous to have to change generals every time new consuls were elected.

The response was to allow a consul to remain in the province in which he was fighting, until the war had been brought to a satisfactory conclusion, or until it was convenient (or necessary) to change leadership. These ex-consuls who were given an extended term in an assigned a province were called proconsuls.

Here we have a situation where the imperium was extended beyond a year. However, the Romans compensated for this dangerous innovation by continuing to elect two new consuls every year, and by limiting the extent of the proconsul’s imperium to a single assigned province.

Suspension of the Constitution: The “Final Decree”

As already mentioned, the Romans ceased to make use of the dictatorship after 216 BC, for reasons which are unclear. They were always less than comfortable with the office in any case. Instead they had resort to another tool, but one which was potentially more dangerous. Indeed, it would set a pattern for the assumption of extraordinary powers by many a modern fascist dictator.

First of all, notice that once the precedents had been established, the dictatorship and the proconsulship could be viewed as simply customary provisions of the constitution, to be invoked during times of crisis. Thus, the constitution could still be regarded as in effect: the dictator had to give up power in six months, and the proconsul only held power within provincial confines and at the pleasure of the Senate.

The new emergency instrument was much more radical. It was called the senatusconsultum ultimum, or “final decree of the Senate” (hereafter referred to as SCU). This took the form of a decree issued by the Senate, which proclaimed videant consules ne res publica detrimenti capiat (“let the consuls see to it that the Republic suffer no harm”). In effect it was a declaration of martial law, giving complete discretion to the consuls to do anything they deemed necessary to protect the state.

It was also somewhat paradoxical, for it basically suspended the rule of law so that the rule of law could be protected. Its danger lay in its very vagueness. There were no delimitations on the powers that could be exercised, and there was no statement of the criteria to be met that would satisfy the SCU’s objectives. It therefore amounted to a suspension of the constitution. And because it sanctioned any and all actions the consuls chose to undertake, it also effectively protected them from prosecution for those actions once their term had expired.

The SCU was mainly invoked during the later Republic, not as a response to external threats but to internal ones. Predictably, it had the tendency to sanction the extra-judicial murder of political enemies of the ruling class.

Lessons to be Learned

The SCU was more a symptom than a cause of the collapse of the Republican constitution. It was invoked because of the extraordinary political upheavals that were tearing the Republic apart. These had their sources in continuing class warfare, along with the stresses of a ruling a vast empire with an administrative machinery designed for an aristocratic city-state. Although the SCU didn’t cause all of Rome’s political problems, it was certainly an inappropriate response to them.

Why did the Romans not consider reviving the position of dictator? I don’t know. I suspect it might have had to do with an anti-monarchical animus that had grown up in the intervening period, as the Romans exceptionalized and valorized themselves above the Mediterranean peoples they had conquered, most of whom had been subjects of kings. In their own eyes, Rome was a society of heroic men who had freed themselves from the tutelage of princes. Perhaps they took their own propaganda too much to heart, the dictatorship seeming too much like a kind of kingship, and kingship too much like tyranny.

What lessons can a free people learn from the breakdown of the Roman Republican constitution? Well, we might note that a wisely formed constitution must make some kind of provision for emergency. This will demand some flexibility, but not of the kind represented by the vagueness of an instrument like the SCU.

The principle here should be: A wise constitution, where it confers extraordinary powers, will also clearly delineate the extent of those powers, and provide clear criteria for their eventual termination.

Where a constitution must grant extraordinary powers to some office or institutional body, it should at the same time curtail whatever other powers it has that are not necessary to meeting the emergency, so that when the emergency has been met, the empowered office or body is not strong enough to subvert the constitution. Thus, when the Romans found it necessary to invest a dictator with undivided imperium, it strictly shortened and clearly delimited the time during which that imperium could be exercised; and when it was found necessary to extend the period of time a proconsul could have imperium, it at the same time limited the extent of territory over which he could exercise it, while making it clear that it was held at the pleasure of the Senate, revocable at any time.

The principle here should be: A wise constitution grants powers with one hand, and takes powers away with the other hand.

Finally, no constitution should contain an instrument like the SCU, providing for its own negation. As a matter of fact, it is not even clear that the Roman constitution allowed for it. For one thing, there is considerable disagreement among historians about the extent to which the SCU was a formalized practice. Some of them would argue that it was less a constitutional principle and more an ill-considered innovation. When a constitution is forced to say “Euthanize me in order to protect me from my enemies,” it is no longer worthy of protection, because it can no longer perform the most vital function of a constitution, which is to protect those subject to it from the arbitrary exercise of naked power.

The principle here should be: A wise constitution abhors a vacuum and contains no gaps or suicide pills.

Are Private Vices Really Public Benefits?

In 1705 there appeared in London a little volume of wretched doggerel verse entitled the Grumbling Hive: or, Knaves Turn’d Honest. It was a fable about a hive of bees, prosperous but dissatisfied with its perceived lack of moral virtue. Listening to their grumbling, through his divine power the god Jove removes their selfishness and instills them with a natural love of virtue. The result is a steep loss of prosperity and standard of living. Commerce, arts, and industry, you see, are dependent on a certain level of social vice. The author of the poem was Bernard Mandeville (1670-1733) or “Man-Devil” — as some of his detractors liked to call him — a Dutch physician who had settled and taken up practice in London. In 1714 Mandeville decided to expand The Grumbling Hive, re-issuing it with extensive notes and commentary. Subsequent printings contained further additions until it became the sprawling and ramshackle work that became notorious under its new title, The Fable of the Bees: or, Private Vices, Publick Benefits. The basic moral of The Fable of the Bees is that without selfishness, there is no motivation to employ one’s skills and arts. More controversially, Mandeville would have us believe that without thieves there would be no work for locksmiths, without crimes or quarrels over property there would be no work for lawyers, and without overindulgence in food, gin, and sexual debauchery, there would be no work for physicians like himself, (nor for undertakers where physicians fail). Even among the very poor, he claims, liquor has its beneficial place, for it helps to stupefy the destitute, giving them comfort and supplying "the Places of Meat, Drink, Clothes and Lodging." Where we might see social ill, Mandeville sees no such thing, for "the short-sighted Vulgar in the Chain of Causes seldom can see further than one Link; but those who can enlarge their View, and will give themselves the Leisure of gazing on the Prospect of concatenated Events, may, in a hundred Places, see Good spring up and pullulate from Evil, as naturally as Chickens do from Eggs." Thus, as the famous subtitle heralds, private vices result in public benefits. There are many distinguishable — though not always distinguished — arguments contained in the Fable. Speaking generally, it is a vicious and no-holds-barred attack on the prevailing morality of its time. For example, it makes the case that virtue is a sham imposed on a gullible public by those who would like to take advantage of their gentleness. Furthermore, Mandeville argues, the gullible public buys into this morality because they like to think of themselves as more virtuous than they really are: cunning politicians indoctrinate the herd into morality, and the herd willingly accepts this because it flatters them. As Mandeville pungently sums up the whole con, “moral Virtues are the political Offspring which Flattery begot upon Pride.” Predictably, the book generated a lot of controversy in its time, provoking responses like George Berkeley’s Alciphron, or, the Minute Philosopher (1732), Francis Hutcheson’s Observations on the Fable of the Bees (1726), and William Law’s Remarks Upon a Late Book Entituled the Fable of the Bees (1725). (Law was better known as the author of the classic 1728 devotional work, A Serious Call to a Devout and Holy Life.) Most of these refutations — for few wrote in Mandeville’s defense — were focused mainly on the Fable’s analysis of the foundations of morality. In the rest of this posting, I will concentrate on its economic doctrines, particularly the doctrine that expenditure on vice is just as conducive to economic prosperity as any other kind of expenditure. A Dollar is a Dollar A simpler way of putting this claim is that a dollar spent is a dollar put into the economy, regardless of what it’s spent on. For example, the fact that theft is rife and many homes are broken into is an incentive for homeowners to invest in good locks. That investment is of net benefit to the economy as a whole, for it provides locksmiths and their employees with jobs, enabling them to earn money. And hopefully they will spend that money on gin, because their heavy gin consumption provides several more spin-offs: money for the excise man, employment for growers of grain and distillers of spirits, and — eventually — a clientele for physicians and undertakers. So you see, says Mandeville, contrary to what prudish moralists would have us believe, theft and alcoholism are conducive to the public good. Actually, he makes the rather stronger claim that vices are not only good for society, but that society couldn’t survive without them. This is because, for the most part, dollar for dollar, money spent on vice goes farther than money spent on virtue. In part, this is because, by “virtue”, Mandeville seems to have the more ascetic and self-denying virtues in mind. Ascetics don’t spend money on luxury, or on much else for that matter. A society of such people would not make for a growing economy. Of course, what he ignores is that such a society would already have most of its meagre wants met, which means that it would in theory not require a vigorous commerce. I leave it as an open question whether such a society of monks and ascetics is possible in anything more than a conceptual sense. I suspect that Mandeville's opinion has some limited validity. Nonetheless, we needn’t defend asceticism in order to refute him. While accepting that economic man has almost limitless wants, we can still demonstrate that there is a qualitative difference between vicious and non-vicious expenditures. Berkeley and Hutcheson The first attempts at this task came from George Berkeley and Francis Hutcheson. I say “attempts”, because they didn’t clearly distinguish between vicious and non-vicious expenditure in a qualitative sense so much as a quantitative sense. To see what I mean, here is an exchange from Berkeley’s dialogue Alciphron (1732), between Lysicles, the stand-in for Mandeville, and Euphranor, who is Berkeley’s mouthpiece; they debate the evils and benefits of gin consumption: EUPHRANOR: Say, Lysicles, who drinks most, a sick man or a healthy? LYSICLES: A healthy. EUPHRANOR: And which is healthiest, a sober man or a drunkard? LYSICLES: A sober man. EUPHRANOR: A sober man, therefore, in health may drink more than a drunkard when he is sick? LYSICLES: He may. [….] EUPHRANOR: A sober healthy man, therefore, in a long life, may circulate more money by eating and drinking, than a glutton or drunkard in a short one?... You seem to me to have proved nothing, unless you can make it out that it is impossible to spend a fortune innocently. I should think the public weal of a nation consists in the number and good condition of its inhabitants… Berkeley’s argument here relies on the idea that it’s not so much that gin (or food, or sex, or whatever) is evil in itself, but rather it is evil in excess. There is of course much to this argument, but more can be said. Hutcheson gets a little closer to the mark in his Observations on the Fable of the Bees (1726), when he poses the following drawn-out question: “Would there be a less consumption, if those of greater wealth kept themselves within the bounds of temperance; and reserved the money thus sav’d to supply the interest of money lent gratis to a friend, who may be thereby enabled, consistently with temperance, to drink as much wine, as, had it been added to the quantity drunk by the lender, would have taken away his senses?” Here the crux is not so much the quantity drunk, as it is the inefficient allocation of resources it represents. Although he doesn’t put it in terms quite so modern, Hutcheson is grasping at something like the concept of diminishing marginal returns: resources could be drawn from the drunkard’s excess consumption and put to better use elsewhere. An extra unit of consumption by the drunkard is worth less than the same unit consumed by another who has not reached the plateau of his personal utility curve, as it were. This is a much more sophisticated argument, and it can be taken further. What is Seen and What is Unseen The French politician and economist Frédéric Bastiat (1801-1850) in his 1850 essay “What Is Seen and What is Unseen,” introduced what has come to be known as the “broken windows fallacy”. It is so named after the following scenario: a boy kicks his ball through his father’s window, shattering it. The father’s neighbour, no doubt in an attempt at consolation, proclaims that “it’s an ill wind that blows no one any good”, since at least employment will now be provided for the glazier that the man will have to call in to fix the broken window. So you see, in Mandeville’s theory, the boy’s negligent — or just plain unfortunate, as the case may be — action, is transformed by the subtle alchemy of economics into net social good: private vices are really public benefits, no? No, says Bastiat. This is an incomplete accounting. Looking at the situation from a Mandevillian viewpoint, what is seen is the benefit to the glazier, perhaps along with the dubious “benefit” to the man of having his broken window fixed. But the Mandevillian viewpoint contains a blind spot, for what is not seen is what the man would otherwise have spent his money on, to his greater satisfaction, if he hadn’t been compelled to hire a glazier. Let us say he had been saving up for his daughter’s wedding. Note first, that spending money on his daughter’s wedding would have produced greater overall utility for him than spending it on a broken window. Note second, that the same money would have been spent and added to the economy in either case, only it would have been spent on different products or services. Opportunity Costs To put Bastiat’s reasoning in more modern economic terms, each expenditure one makes represents an opportunity cost: a dollar spent on X, means that same dollar is no longer available to be spent on Y. Now, if for you Y > X in terms of utility, then to have to spend money on X instead of Y means, other things equal, you are worse off than you would otherwise have been; you are down on the whole deal to the tune of Y - X. It’s this kind of full-cost accounting that we need to do before we surmise that cleaning up after the Exxon Valdez oil spill produced a net economic benefit, or that extravagant US military expenditures have the same effect. Externalities In economic parlance, an externality is a cost of production borne by someone other than the producer. For example, the folks who distribute all those junk mail flyers that litter the inside of your doorstep when you get home do not pay the disposal or recycling costs when you throw them out (at least not in my jurisdiction) — you do. Similarly, when a company pollutes the environment, it’s a lucky break if that company itself foots the bill for the cleanup. After all, it may have long gone out of business. That cost too often gets transferred to the public. We can broaden the application of this concept, from production, to activity more generally. Thus, cigarette smoking is not really “production”, but there are usually externalities associated with that activity, including (but not limited to) health care costs and illness from second-hand smoke. It’s not hard to understand that externalities are bad (although Mandeville seems to have had a hard time understanding it). But they may be bad for more than one reason. My hunch is that the general public thinks they’re bad because there’s something immoral about the idea of making others pay for your pleasures. After all, those who produce externalities are getting a free ride, which seems unfair. However, immoral though this is, such an explanation will presumably cut no mustard with Mandeville, who doesn’t really believe in morality anyway (or so he claims). On the other hand, we can say that externalities are inefficient, because they represent a misallocation of resources that could have been expended to much better effect elsewhere. This is the gross flaw at the heart of Mandeville’s “private vices, public benefits” thesis: whatever “prosperity” flows from it hides the opportunity for greater prosperity that has been squandered. I confess that I’ve read The Fable of the Bees several times. After all, “know your enemy”, as they say. However, the book’s doctrines have always appalled me, as has Mandeville’s own vulgar and disjointed prose style (attentive readers may already have noticed that The Spectacled Avenger has no sufferance for ugly prose). It is therefore with some sadness that I must report that two of the thinkers I most admire, Samuel Johnson and Friedrich Hayek, have praised Mandeville’s work. Johnson was a master prose stylist, and Hayek was a Nobel Prize-winning economist, so their lack of judgment in this instance is not to be excused.

Of Anger

November 14, 1755
Sir,

A Man may have need of Philosophy not only when holding fast against the Wrath or the Blandishments of Tyrants, or in the Smoke and Din of Battle, but also in his dealings with his Family and his Household. I was the other Day entering the Kitchen just as one of my Servants was pouring a Bucketful of scalding Water on the Floor, to which she was about to employ her Mop. The Water landed on my Legs, rendering my Breeches and Shoes sodden. By Luck I was not burn’d, but I found myself immediately as much awash in Rage as I was in Water.

But pray, at whom was I vexed? At the Girl? Why, the poor Wench cou’d have no inkling that I was about to enter the Room, nor was she doing anything which lay outside the normal Course of her Duties. Was I to visit my Anger upon her for doing precisely that which I pay her to do, and for which I wou'd equally visit my Anger upon her for not doing?

It is Man's Misfortune that Anger of such a kind is a most natural Passion, and one which wou’d seem to well up of its own accord, without Reflection. Not only is it natural, but if we are to believe ARISTOTLE, it is also a most necessary Passion, for he wou’d convince us that Courage, that most worthy Virtue, celebrated through the Ages by Moralists and Poets alike, wou’d be impossible without a just Measure of Anger.

This is not only a hoary Opinion of the Ancients, for our modern Mr. HOBBES in his Leviathan defines Anger as “sudden Courage” [See chapter 6 — Ed.], against which Definition the witty and elegant Lord SHAFTESBURY most acutely observ’d that if this be so, we must be made to believe that the Virtue of Courage, as being the Disposition to act courageously, is “Anger constantly returning” [Characteristicks of Men, Manners, Opinions, Times (1711), Vol. I, p. 119 — Ed.]. Hobbes is reputed to have been a Man rare at Definitions, but we here find him involv’d in gross Error, for he does Violence to common Sense in asserting that the Virtue of Courage is the same as the Vice of Irascibility.

Aristotle was somewhat closer to the Mark than Hobbes, for at least he had the good Sense to admit that Anger is not the sole Ingredient in Courage, but that a just Measure of Reason is also wanted. But for this opinion, SENECA justly put him upon the Horns of the following Dilemma: Either Anger is stronger than Reason, or it is not. If it be stronger, then how can Reason limit or restrain Anger to the extent necessary for Courage to be properly controlled and directed? If, however, Reason be the stronger Partner, then why is Anger necessary to Courage at all? [See Seneca, De Ira, 1.8.4-6 — Ed.]

The Stoick School held that Anger, as it is a Passion, must for that very Reason be held suspect. It will always be clouding a Man’s Judgment; it wou’d make us Judges in our own Cause, magnifying the Wrong done us, and demanding unreasonable Restitution. It wou’d have us visit our Vengeance upon the Wrongdoer while we are in no fit State for making a proper Job of it. Here we ought to attend to the Counsel of honest old MONTAIGNE: “Let an hungry Man have Meat; but a Man who wou’d Punish shou’d neither hunger nor thirst for it” [Essays, “Of Anger” — Ed.].

I cannot end without a Remark upon an opinion of Lord VERULAM’s that to calm one’s Wrath, “it is the best Remedy to win Time, and to make a man’s Self believe that the Opportunity of his Revenge is not yet come: But that he Foresees a Time for it, and so to still Himself in the mean Time, and reserve it” [Francis Bacon, Essays (1623), “Of Anger” — Ed.]. Thus he wou’d have us nurse a Resentment in the hopes of forestalling rash Action. He wou’d have us apply a numbing Ointment to the Wound but not a curative one. Notwithstanding, Montaigne gives the opposite Counsel, preferring rather to produce his Passions than to brood over them at his own Expense, for “they grow languid when they have Vent and Expression.”

I confess myself unable to decide between these opposed Reasonings, but I also cannot avoid the Conclusion that it is Danger to coddle a Resentment, for a smoldering Anger may suddenly become an Anger ablaze.

I remain, Sir, ever your humble Servant,

Jos. Darlington, Esq.
Darlington Close,
Horton-cum-Studley, Oxfordshire.

Contract and the Philosophers (Part II)

Contractarian philosophers tend to speak as if it is just natural for us to think of social structures according to the analogy of a binding contract between multiple parties. What they seem to be unaware of is that contract is a new enough an idea — relatively speaking — to make it anachronistic to conceive of a bargain struck in some primeval state of nature.

Social contract theory came into existence under certain historical and cultural conditions; before that time, philosophers did not think in terms of social contracts. Broadly speaking, there were two important historical threads running through the period in question that influenced the development of contractarian philosophical thinking.

First, social contract theory begins in 17th century England, coinciding with the emergence of that nation as a mercantile entity. With a rising merchant class, and the growing social prominence of trade, the notion of a contract became a more familiar thing. Confident that their audiences would know what they were talking about, philosophers began to talk about social contracts.

Second, again in 17th century England, the common law was developing a new branch of private law, which we now call the law of contract. It began with the old common law action of assumpsit (literally “he has undertaken”, from the Latin assumere, “to undertake”). Originally, assumpsit was an action for debt, while debt itself was seen as part of tort law. For example, if you borrowed money from me and didn’t repay due to deceit, it was that deceit which generated a liability for damages in tort. But later it came to be seen that the very promise to pay the debt back could itself form the basis of the action, regardless of deceit — after all, at the time you borrowed the money you might have had every intention to pay it back, without deceit even coming into it. Thus, under the form of action called assumpsit, the law came to concern itself with obligations generated by voluntary promises or undertakings, which is the basis of modern contract law.

Thus, I submit that in 17th century England, the novelty of the social and legal conception of contract came to influence philosophers’ thinking about the foundations of moral and political arrangements. But it was a far from natural way to think about them.

Duress

Even with regard to legal contract, the social contract analogy in certain respects breaks down. For example, it is well-established in law that a contract made under duress is not valid. This has especial relevance to Hobbes’ version of the social contract: if man’s only motivation for entering into the social contract was fear of violence and death, then is the contract binding? If the fear in the state of nature was sufficiently acute, forcing people into a bargain they otherwise would not have made, then it was made under duress and would be unenforceable at law.

Privity of Contract

Another way in which the contract analogy breaks down is with respect to the legal doctrine of privity of contract: an agreement made between A and B cannot be held to be binding on a third party C without C’s express consent. And yet, isn’t this exactly what happens where a social contract is held to be binding on future generations who were not parties to its first formation?

Interpretation of Terms

It often happens that the parties to a contract were actually — unbeknownst to them — not in agreement over the terms of the contract. They may have had differing ideas about what the agreement was supposed to achieve. In such cases, a court may invalidate a contract and grant restitution to one or more parties to return them to the position they were in before the contract was made.

Now, in the case of a social contract, can we honestly say that those who under its arrangements have ended up getting the short end of the stick, by winding up poor or otherwise disenfranchised, actually understood the implications of what they were getting themselves into? Maybe, but maybe not. If you entered into a contract that was supposed to guarantee your security and human flourishing, should you still be bound by it if that is not what you were getting after all? Courts decide this question in different ways according to the particular contract in question. But given that in this case the consequences are so dire and far-reaching, it is not unreasonable to suppose that a court would invalidate it.

In any case, the social contract was entered into so long ago (we assume) that nobody can really be said to be an expert on what its actual terms are. We have to interpret those terms as we go along. But if that’s the case, then why can’t we deliberate on just social arrangements without the device of a contract? In the absence of an actual explicit contract, we must negotiate anew, in which case, there is effectively no contract.

Implied Terms

In a similar vein, rather than invalidate a contract, courts will sometimes fill in gaps through the imposition of implied terms where some element necessary for the carrying out of the contract is missing. We could say that in our social contract, there are many such gaps.

One common implied term is an assumption of good faith. A court will interpret what obligations would be generated if the parties entered into the contract in a spirit of good faith. Here, “good faith” implies honesty and lack of intent to deceive or withhold information vital to the other party’s free and informed consent to the contractual obligation.

This raises an interesting dilemma: if we are already assuming good faith on the part of the contractors, and if — as is undoubtedly the case — good faith presumes a fairly robust moral content, then it would seem that philosophers who use the device of a contract to ground morality are already smuggling morality in by the back door. If morality is needed to ground a contract that will ground morality, then… well, you get the picture. We can just as well cut out the middle man.

Limitation

The terms of most contracts will give some indication of when the contract is to be considered discharged or rendered void, for example, upon completion of performance by the parties involved, or after a certain length of time has run out. If there isn’t such a limitation, courts may imply one that seems reasonable.

The social contract, on the other hand, has no such limitation. It would seem to be a rare instance where the contract is to remain valid indefinitely, from the moment I sign on to the day I die (not to mention that it continues to bind future generations).

Unenforceable Terms

Certain kinds of “contracts” are considered unenforceable at common law. Examples would be most gambling contracts, contracts demanding performance that is illegal, or a contract selling oneself into slavery (because certain rights are considered inalienable and cannot be waived). Now, imagine a contract whereby I give someone (or some body) the right to exercise extensive coercive powers over me, including restrictions on freedom of travel, imprisonment, and possibly even death. Such a contract would likely be unenforceable, and yet, this is exactly what a social contract involves.

*******

For those who are curious, the above illustration is a reference to what is perhaps the most famous case in contract law, Carlill v. Carbolic Smoke Ball Company [1893] 1 QB 256.

Contract and the Philosophers (Part I)

In my two previous postings I attempted to deflate a traditional philosophical notion of property by looking at some of the characteristics of the law of property. My presupposition in doing so was that property has as much claim to being a legal concept as a philosophical one. As far as I’m concerned, the same goes for the concept of contract, a claim I’ll explore in this and the next posting.

Since the 17th century, the device of a social contract has been used by many philosophers, in both political and moral philosophy. In the former, it has been used to ground our obligation to obey political authority (e.g. Thomas Hobbes), or to ground a certain regime of political rights and freedoms, (e.g. John Locke and Robert Nozick), or else to generate the fundamental principles of justice that ought to structure the basic institutions of a free and reasonable people (e.g. John Rawls).

In the realm of moral philosophy, the contractarian approach has been used to test and sharpen our intuitions about what reasonable principles of morality would look like, as well as to justify the principles of morality.

This notion that the device of a contract can be used to justify morality or political authority is particularly problematic. As Lord Shaftesbury wittily pointed out with regard to Hobbes’ version of the contract, “A Man is oblig'd to keep his Word. Why? Because he has given his Word to keep it. — Is not this a notable Account of the Original of moral Justice, and the Rise of Civil Government and Allegiance!” (Characteristicks of Men, Manners, Opinions, Times (1711), Vol. I, p. 110). In other words, in order for my promise to abide by the original social contract to be morally binding, some morality must already exist that will bind me to my promise. The very notion of a contract presupposes morality and cannot be the foundation of it. Shaftesbury was not the first to point this out. He likely got the argument from Richard Cumberland’s De Legibus Naturae (1672), e.g. ch. V, §56.

Another philosophical problem with contract theory is this: depending on your initial assumptions regarding human nature and the corresponding state of nature, just about any moral or ethical theory can be generated from the machinery of contract theory. For example, if your state of nature is one of violence and misery resulting from a brutal and selfish human nature (I’m thinking of Hobbes here), then you would naturally drift towards a coercive and authoritarian theory robust enough to put an end to such a deplorable situation. On the other hand, if you generally think that human nature is redeemable and contains some “spark of better hope,” then your theory will tend to be one that emphasizes either representative or direct democracy and a minimal coercive role for government (e.g. John Locke).

Furthermore, as Amartya Sen explores in his recent book, The Idea of Justice (Harvard University Press, 2009), there is a tendency for social contract theorists to become preoccupied with ideal justice in the institutions and social arrangements generated by their theories, while paying scant attention to real injustices that could plausibly be ameliorated here and now. This is the natural result of too much speculation about idealized human agents under idealized initial conditions. Such philosophers spend too much time theorizing about “spotless” justice (the term is Sen’s), instead of about how they could make the world more just than it is. The latter is perhaps less ambitious, but more realizable.

Similarly, when philosophers employ the device of a social contract, they often do so in the context of finding the kind of ideal institutions that would embody their notion of an ideal justice. Unfortunately, they tend to have the unrealistic expectation that such institutions would be monolithic and unchanging — after all, if institutions are perfectly just, then why change them, right? But in the real world, circumstances inevitably change, necessitating institutional change as well.

The notion of ideal and unchanging institutions is a mere dream, but one which could too easily become a nightmare. As Adam Ferguson judiciously observed in his Essay on the History of Civil Society (1767), “our notion of order in civil society is frequently false: it is taken from the analogy of subjects inanimate and dead; we consider commotion and action as contrary to its nature; we think it consistent only with obedience, secrecy, and the silent passing of affairs through the hands of a few. The good order of stones in a wall, is their being properly fixed in the places for which they are hewn; were they to stir the building must fall: but the order of men in society, is their being placed where they are properly qualified to act. The first is a fabric made of dead and inanimate parts, the second is made of living and active members. When we seek in society for the order of mere inaction and tranquility, we forget the nature of our subject, and find the order of slaves, not that of free men.”

Finally, social contract theory is not descriptive, insofar as it does not accurately describe most people’s reasons for why they obey political authority, or why they think the exercise of such authority is legitimate. This point was well made by David Hume in his essay “Of the Original Contract” (1752). He there argued that, given a certain rough physical and mental equality between men (in the bare sense that any man is able through strength or guile or confederacy to kill any other), it was natural for men in their “rude state” to form an agreement to live together on certain terms “so clear and obvious that it might well be deemed superfluous to express them.” In other words, the original “contractors” knew the terms of whatever bargain they were striking, though they might be obscure to us, given the distance of time and circumstance and the lack of written documentation. Even on this minimal view, such “original contracts” were imperfectly realized and quickly lost in subsequent times by the conquest and usurpation of the powerful.

In any case, Hume notes, this minimal original contract is a far cry from the sort of contract theorized by philosophers, for “would these reasoners look abroad into the world, they would meet with nothing that in the least corresponds to their ideas or can warrant so refined and philosophical a system. On the contrary, we find everywhere princes who claim their subjects as their property and assert their independent right of sovereignty from conquest or succession. We find also everywhere subjects who acknowledge this right in their prince and suppose themselves born under obligations of obedience to a certain sovereign, as much as under the ties of reverence and duty to certain parents. These connections are always conceived to be equally independent of our consent, in PERSIA and CHINA, in FRANCE and SPAIN, and even in HOLLAND and ENGLAND, wherever the doctrines above mentioned have not been carefully inculcated.”

In other words, in the real world, people feel themselves obliged to obey the sovereign power of their particular nation, and they do so (or at least did so, in Hume’s times) without rarefied notions that this was legitimated by consent expressed in some explicit contract. For Hume, political obligation was more akin to the duty owed to a parent than to another party to a contract. It was a relationship that did not have to be entered into by free consent, just as we all owe certain duties to parents, even though we didn’t enter voluntarily into that relationship.

In fact, continues Hume, “almost all the governments which exist at present, or of which there remains any record in story, have been founded originally either on usurpation or conquest or both, without any pretense of a fair consent or voluntary subjection of the people.” And yet, at least for those of us lucky enough to live in one of the generally well-ordered democracies of the West, not only do we generally obey these governments, but we also believe that it is right to do so, and we further believe that everyone else ought to do the same. True, we may quibble with certain policies or actions of government, but obedience to political authority tout court is never fundamentally questioned by anyone who is not motivated by ignorance or self-interest, or deluded by the airy dreams of political philosophers. And we do not need the idea of an imaginary contract to tell us that this is the correct attitude to have.

Property and the Philosophers (Part II)

In my previous posting I gave some reasons — rather scattered and ill-digested ones, I’m afraid — for why we should be sceptical about the standard philosophical account of private property, namely that of absolute ownership. Not that I’m against private property, for you won’t find a socialist bone in my body. But when we look at the legal concept of property, we find that it’s not as private as classical liberal philosophers (what Americans call libertarians) tend to make it out to be. And the fact is, property is foremost a legal concept.

I would now like to offer an alternative account of the way philosophers should think about property, one quite different from the absolute account already considered. I cannot take credit for it. I came across it in a wonderfully thought-provoking book of comparative law by James Gordley, entitled Foundations of Private Law: Property, Tort, Contract, Unjust Enrichment (Oxford: Oxford University Press, 2006).

Gordley himself admits to following the lead of the Aristotelian tradition on the subject. In Book 2 of his Politics, Aristotle gave what I take to be one of the best defenses of a regime of private property yet expounded. I cannot go into the details of his arguments here. What’s characteristic about them, and indeed of his approach to moral and political philosophizing in general, is his analysis of institutions in terms of teleology: if you want to understand the principles underlying an institution like private property, you must understand the ends those principles serve. For Aristotle, the end was the good life, and property was the material basis of that life.

In the case of private property, Gordley identifies two main Aristotelian ends served by a regime of private ownership: (i) it enables property to be put to those uses that are most conducive to the good life, and (ii) it prevents quarrelling over what those uses are. Both of these points are subsumed under what Aristotle takes to be the ultimate end of all human action: the good life, or what in Greek he calls ευδαιμονια (“happiness”, or better, “flourishing”). It is important to remember that, for Aristotle, the good life cannot be lived alone. Therefore, the Aristotelian good life is inseparably bound up with the common good.

Private Property Is Conducive to the Good Life

If property were held in common, people would not be optimal stewards of it, in part because they would not enjoy all the fruits of their labour in it, and in part because of the danger of free-riding: why should I trouble myself over working the land and being a good steward of it, when I can rely on others to pick up my slack? And since no one wants to be a sucker, we’d all be sorely tempted to free-ride.

Furthermore, let us characterize common ownership as a system where everything is owned by everyone. In such a system, says Aristotle, no one would really own anything. For example, I would not have the right to pass any of that property on to my descendants, nor to give anything away in gifts, because I cannot give what is not mine give — any property belongs to the community.

Gift-giving is an example that gets to the heart of Aristotle’s argument. Gift exchange, besides being an expression of an individual’s free will, is also an institution that underpins much else. For instance, it plays a large role in the relation of friendship. And if you accept that friendship is a necessary part of the good life (which it must be), then common ownership would be detrimental to the good life. Life under common ownership would be life without giving and without friendship.

(Interestingly, in the post-Communist age, we are perhaps better placed to test Aristotle’s claims empirically. I would venture to say that they were valid, though quite exaggerated.)

Private Property Prevents Quarrels

It is presumed by Aristotle, with some justification, that a private owner is best placed to judge what would be the best use of the property at his disposal, if for no other reason than that he is in regular and close proximity to it. He is certainly in a better position than, say, a modern socialist planning board would be.

But even if a private owner is occasionally wrong, his mistake cannot be as detrimental to society’s flourishing as the mistakes caused by such a planning board, which could make the same mistake with everybody’s property. Private ownership spreads risk and doesn’t put all of society’s eggs into one basket, as it were.

In addition to all of this, there is the certainty of title that private property affords, and it is this that I believe Gordley and Aristotle have foremost in mind when they speak of the prevention of quarrels. Imagine that there is a certain parcel of land and that I believe it would be best to sow it with soy beans, while you believe that it would be more profitable to grow barley on it.

Now imagine what would happen if this dispute were to occur in a regime of common ownership. A couple of possibilities immediately present themselves. One is that we would simply have no recourse but to fight it out. Another is that neither of us gets to decide, because the state and its appendages are the final arbiter. The first option is messy, but I’d at least have a fighting chance (so to speak) of getting my way. With the second, there is the possibility that we’d both be disappointed, because the state’s economic planning agency might decide that the land would be more useful as a parking lot or a weapons testing range.

Under a regime of private ownership, the quarrel should not arise in the first place: both of us would know that whoever owns that parcel of land will get to decide how to use it. If it is neither of us, then there is no ground for a quarrel; if you own it, I know I must defer.

In the remainder of this posting I’d like to turn to a couple of examples where the law seems to interfere with private ownership on the absolute conception of property, but which can be made sense of according to Gordley’s and Aristotle’s scheme.

Adverse Possession

In the common law, adverse possession is the acquiring of title to another’s real property without their consent and without compensation, by way of uninterrupted possession for a specified period of time (the length of which may vary from jurisdiction to jurisdiction). Most legal systems have some similar norm; in Roman law it was called prescriptio, and the required period of uninterrupted possession was normally two years.

Obviously, a doctrine like adverse possession, which involves the non-consensual interference with an owner’s title to property, is difficult to reconcile with the absolute conception of property. Can the Aristotelian approach make sense of it?

Yes it can. Remember, on the Aristotelian account, the rationale for private ownership is (i) to allow property to be put to uses most conducive to the good life, and by extension, the common good, and (ii) to prevent quarrels over what those uses are, by providing clear title to property. What doctrine of adverse possession says is that the previous owner has subverted both of these principles. Through his negligence he has both allowed the property to be put to no use, and he has furthermore allowed the title to become muddled and disputable through disuse. Therefore, his expropriation can be justified under the very principles underlying the private property regime.

What we can take from this example is that ownership is not absolute. Rather, you own at the sufferance of society, because it is best for society in the long run for such a rule to be in place. But if you subvert the purpose of the rule, your title is revocable.

Interestingly, legal jurisdictions which have developed a reliable system of land registry tend to render acquisition of title by adverse possession obsolete (an example of this is Germany). This is reasonable insofar as such a registry leaves no possibility of muddled title. But it is difficult to see how allowing absentee owners to let their property fall into disuse can serve the common good.

Necessity

Most legal systems allow a defense of necessity for the damage or expropriation of another’s property in situations where there is exceptional urgency or manifest benefit to the public. Two such situations are starvation and creating a firebreak.

If I am starving, may I be excused if I steal a loaf of bread from you to feed myself, provided I will not cause you to starve by doing so? And if I am allowed to do this, do I then have a duty to compensate you for it? Thomas Aquinas, an Aristotelian, argued that not only can I take your bread, but I don’t owe you any compensation for it (Summa Theologica II-II, q.66, a.7).

I am also permitted to destroy your home in order to create a firebreak, without being obligated to compensate you. (It should be noted that at least one Roman jurist thought this defense should be restricted to magistrates — see Digest 43.24.7.4).

How can we make sense of these examples? Again, remember the principles underlying private ownership: putting property to its best use, and preventing quarrels over what the best use is.

On the first head, in the examples of starvation and fire breaks, preventing the action in either case cannot possibly be the best use of the property in question. On the second head, in each case the manifest urgency of the need is such that there cannot be any reasonable quarrel about what the best use would be. In the given circumstances, it would be difficult to justify a use more conducive to the good life or the common good than the prevention of death by starvation or the destruction by fire of the property of a greater proportion of the community.

What is perhaps more surprising in cases of necessity is the lack of a duty to compensate. But I suppose this can be explained by saying that in such cases, no wrong was committed which could generate such a duty. There is no fault (or culpa in Roman law), and so no compensation is required. In any case, this seems to have been Aquinas’ position.

Property and the Philosophers (Part I)

I am no longer much involved in academia, but if I was, I think I know where I’d like to continue my research. I’ve often noticed that political philosophers, particularly those with classical liberal or libertarian commitments, employ certain concepts from other disciplines, while remaining largely ignorant of how they’re employed in those fields. With their penchant for abstraction, philosophers have a tendency to turn such concepts into ideal types, while hopelessly distorting them through ignorance of their rich history and social context.

In particular, I’m interested in two examples of this phenomenon. In the first, political philosophers talk about and either justify or criticize the institution of private property, based on an absurdly simplistic notion of what property is and ignorance of how it functions as a legal concept. In the second, many such philosophers like to employ the notion of a social contract to understand the nature of the state and of political authority, while knowing little about the legal concept of contract.

I’ll devote this post and the next to property, and a future one to contract.

Real vs. Personal Property

Let’s begin with the distinction between real and personal property.

Too often philosophers (e.g. John Locke and Robert Nozick), when dealing with property, confuse the distinction between real and personal property, treating the former as if it were the latter. From this mistake they get some strange ideas about the nature of property ownership. Foremost among these strange ideas is that of absolute ownership, given expression in the Latin tag ius utendi, abutendi, et alieni (“the right of use, abuse, and alienation”).

Locke notoriously tried to base the right to private property on the right to ownership over one’s physical self. You own your own body. Therefore you own the labour of your body, and by extension you own the fruits arising from that labour.

This scheme raises as many questions as it answered. Will any labour do? For example, if I go to the trouble of pouring my beer into the lake, and presuming the lake is previously unowned, do I thereby gain ownership of the lake? One answer to this question has been that only labour that adds value to a thing will give you rightful ownership over that thing.

Another problem was that, at least in Locke’s time, one actually did not have absolute ownership over one’s body, because one did not have the right to abuse it by committing suicide, nor did one have the right to freely alienate it by selling oneself into slavery. As a matter of fact, for Locke, it was actually God that owned our bodies, while we merely hold it in trust, subject to good behaviour (i.e. by conforming to certain divinely promulgated laws of nature). So even in Locke, the supposed exponent of absolute ownership par excellence, we can see that there are limits to the rights of ownership.

Absolute ownership is a concept that generally works well enough in the context of moveables or personal property. For example, few would dispute my right to use, abuse, or freely alienate a book that I own, however much it might pain them to watch me crack its spine and scribble notes on its pages. (Although even with personal property there are exceptions to absolute ownership: do I have the right to abuse my dog or cat?)

Every legal system makes some distinction — among others — between the type of property I can do with what I like because society takes no interest in it, and the type that society takes an interest in and will put constraints upon the exercise of its ownership, for the sake of the common good. Roman law put land, slaves, and certain kinds of livestock in the latter category, which made sense in an agrarian society. These types of goods were not freely alienable without going through a rather elaborate and ceremonially archaic procedure of sale called mancipium. Property requiring or not requiring mancipium were called, respectively, res mancipi and res nec mancipi. The former could, with considerable stretching, be seen as analogous to real property in the common law.

A further Roman law distinction was between two different kinds of rights to which property could give rise. Roman law distinguished between rights in rem and rights in personam. In the latter, your right was not to the thing itself, but against the person possessing it. If that person went bankrupt, you had to line up with all the other creditors. But if you had a right in rem, you got your property back before it went into the common pool of liquidity. At the risk of considerable oversimplification, it was normally the case that ownership of real property, or res mancipi, gave you a right in rem to it.

Besides making fundamental distinctions between different kinds of property and the rights and duties attached to them, Roman law also put considerable constraints upon the exercise of ownership, particularly of real property. For example, in Roman law an action was available by an heir presumptive against his father for wastage of the patrimony; the father could be turned out from his estate in favour of his son if it was found that he was squandering it to the detriment of his heir. It seems that the Romans viewed ownership of real property as more like a trusteeship: land was held in trust for the good of the familia. The familia itself was conceivable as a kind of corporate entity that one owed duties to, for just as one had a duty to preserve its material basis (i.e. its real property) for future generations, one also had the duty of preserving its sacra or religious rites, a large component of which involved honouring past generations of ancestors. In such a system, ownership could be a heavy burden, not the sort of unadulterated freedom that libertarians imagine in their possessive utopias.

Feudal vs. Allodial Ownership

If Roman real property ownership seems very constrained, English common law ownership was once just as much so. English real property law was — and to a large extent still is — based on the feudal system of social and economic organization. Feudalism still casts a long shadow, even though no one would say that the English-speaking countries are feudal in organization.

When King William conquered England in 1066, he thereby became owner (by right of conquest — though I hate the term) of its lands. For reasons of security and administration, he doled out parcels of this land to his supporters and followers, but with strings attached. The recipients became the King’s sworn liegemen, obliged to provide service to the Crown, usually in the form of military service. These liegemen in turn doled out parcels of their land to their followers in return for specified services, and so on.

We can imagine pure feudalism this way: you didn’t own land in the modern sense; rather you held it in “tenure” (from the Latin tenere, “to hold”) from someone, in return for certain rents or services. Tenure was not about one’s relationship to the land, but about the relationship between a tenant and his lord next up the feudal chain. In a sense, everyone (with the possible exception of the King) was a renter.

There were as many possible constraints on the freedom one could exercise over one’s property, as there were possible services one could owe to one’s lord, from providing knights for war, to providing a red rose at noon on Midsummer Day. You name it.

There are some constraints in pure feudalism that were nearly universal, and which sound very unlike the modern notion of property ownership. One could not freely alienate lands without permission from one’s lord, and this included leaving it to your heir in a will. It came to be the custom that your son would be allowed to inherit, subject to the payment of a fee called a “relief”. But it had to be your son, and it had to be the eldest son (this made sense when tenure was based on the ability to provide military service). And if that son was a minor, then your lord had wardship over him until he came of age, which meant that during the wardship he would collect the fruits of those lands. Also, you owed a fee towards the costs when your lord’s son was knighted, as well as towards the costs of his marriage. These fees were called the “incidents” of tenure, and for the lord they could be worth more than the nominal rent he received for those lands.

In short, under feudalism, there were so many strings attached to “ownership” that it seems almost improper to use the word. On the absolute conception of ownership, one has exclusive ownership of land, while in feudalism, one can only speak of having rights in land, which were not exclusive because others also had various rights in the same land, depending on one’s place in the feudal chain.

When John Locke writes of property as being the expression of meum et tuum (“mine and yours”), he is speaking of the absolute conception of ownership, in which a thing’s being mine, means that it cannot be yours. This conception, however well it may have worked when applied to moveables, did not translate so well into the language of feudal real property. And remember, in Locke’s time, English land law was still quite feudal, certainly more so than now.

We can see the shadow that feudal ownership still casts if we compare it to what would seem to be its opposite, namely allodial ownership. You own land allodially if you owe no rents or services to anyone, and you basically have what we have been calling “absolute” ownership. In Europe there were here and there pockets of land that for whatever reasons, did not come within the feudal system, but were owned independently of any lord. These were rare, and eventually most of them were feudalized.

In common law countries the situation is different: there is no such thing as allodial land in the UK, Canada, the US, Australia, and New Zealand. We can largely thank William the Conqueror for that. When he conquered, he conquered everything, so that ultimately everyone who held land held it from him.

Here at last, you might think, is at least one example of absolute ownership: the Crown, being at the top of the feudal chain, is absolute owner of lands, with the rest of us being merely renters. But not so. For one thing, it was always recognized that the King, as the chief landlord, owed duties of protection, etc. to his tenants-in-chief, just as any other landlord would. Furthermore, since at least 1688, the Crown is constitutionally limited and subject to laws just like anyone else. The Queen now pays taxes on her estates.

If you own real estate, and you think you might be its allodial owner, a few pertinent facts will dispel this idea. For one thing, you probably pay land taxes; an allodial owner would not. For another, if you let your house fall to ruin, or if you stop trimming your yard, the authorities can condemn your house, or get an injunction forcing you to cut your lawn. Again, an allodial owner, having the right of abutendi (abuse), would not in theory be subject to such constraints. Finally, under the principle of eminent domain, the state may expropriate you if they have a better and more pressing use for your land (subject to the proviso that they pay you a fair monetary compensation for it); an allodial owner could refuse such expropriation, but you cannot. All these facts show that you do not have absolute or allodial ownership of your land. In fact, no one does.

To repeat, when political philosophers like John Locke and Robert Nozick defend private property arrangements, they seem to imagine that there is no difference in fact or law, between real and personal property; for them my ownership of land is no different than my ownership of a tennis racket.

In my next post, I will offer an interpretation of property ownership — not my own — which I find much more plausible than those typically offered by most modern political philosophers of a classical liberal or libertarian bent.

Morals, Religion, and the Law

There was an interesting letter to the editor in yesterday's newspaper by one Ross Reynolds of Toronto (National Post, Oct. 11, 2009), which the editors chose to place under the rubric "Morals and the law don't mix". I found it interesting not because I agreed with it, for there is just about nothing in it I agree with (indeed, it is rare to find so much error stuffed into one paragraph). Rather, it is instructive because the errors it contains, which are fourfold, are believed by so many. The occasion which provided the context of the letter is a recent Canadian Supreme Court case attempting to do away with Canada's supposedly archaic and intrusive laws against prostitution.

(Prostitution itself is technically not illegal in Canada, but there are various laws against communicating for the purposes of prostitution which make the "trade" de facto rather difficult to ply without violating the law. It is not my purpose to comment on the specifics of the court case in question.)

I will quote the letter in full, and follow it with my remarks:

"The prostitution ban [actually, he's wrong, as there is no outright ban as such], similar to the drug prohibition, has never been successful at reducing demand and is fabricated from an outdated concept of morality. Letter-writer Paul Kokoski asks, 'How long can a democracy survive if its government passes laws that act to separate states from morality?' I would humbly suggest to Mr. Kokoski [that] it isn't the government's duty to instill its citizenry with a moral code - that responsibility should belong to the church. The greater the distinction between morality and human rights, the better."

There you have it. And now for my remarks.

1. "...it isn't the government's duty to instill its citizenry with a moral code"

Mr. Reynolds may be partly correct: It is not government's responsibility to instill a moral code, because that is the job of parents, teachers, and perhaps other social institutions (e.g. churches, schools, professional organizations, etc.). But it is most certainly the government's duty to protect an already-existing moral code, especially in those parts of it which are not at all in contention by the broad majority of society. Indeed, there are arguably few other legitimate roles which a government does have.

Now, in this I am not to be taken as implying that it is always wise or prudent for the law to intervene in morality. But the law certainly has the legitimate right to do so.

I would humbly submit that, contrary to most of the high-minded liberal claptrap you're likely to hear, prostitution is widely accepted as an immoral trade that almost all of us rather wish didn't exist (though granted its immorality lies more on the purchasing side of the equation than the sales side). It is either the source or the symptom of many a well-known social ill. And for heaven's sake, let's stop calling prostitutes "sex workers" as if prostitution is a viable career option for our daughters. If you believe that it is, and you have a daughter, then she should probably be removed from your care.

Back in the 1960s Lord Patrick Devlin, a prominent English judge, wrote a book entitled The Enforcement of Morals, in which he defended the position once held by the Victorian magistrate Sir James Fitzjames Stephen (pictured) that the government has the legitimate right to intervene in matters of morality. This position has come to be called "legal moralism" (though some of its critics would sneeringly call it "legal paternalism"). Many critics, most notably the great legal philosopher H. L. A. Hart, tried to refute him. The general intellectual fashions of the time ran very much in a liberal vein, and so it was commonly accepted by those who don't think very deeply that those critics scored a definitive victory. But they simply haven't. I do not have the space here to rehash this old debate, but I promise to do so in a separate posting in the near future.

2. "...that responsibility should belong to the church"

This is just an expression of the old canard that there is some necessary connection between religion and morality. There simply isn't. Plato ably destroyed that assumption in his Euthyphro when he asked whether the good is good because the gods approve of it, or if the gods approve of the good because the good is good in itself?

If the good is such because God approves of it, then what if God were to approve of murder and rape (as he seems to do in many passages of the Old Testament)? Would murder then become good? And can you really be said to be a good person if your sole motive for doing the right thing is hope for heavenly reward or fear of divine punishment?

If your answer to these questions is "no" - as I think it must be, then what need is there for God to serve as the foundation of morality?

3. "...that responsibility should belong to the church" (again)

The use of the definite article here should really make us nervous. Which church is the church to which Mr. Reynolds is referring? In using the word "church" he presumably means some denomination of Christianity. Which one? Hopefully not the Catholic Church, for given recent events within the Church in Nova Scotia, I wouldn't want to leave any child alone with a priest to be instructed in morality.

This is one subject where conservatives will simply have to bite the bullet: we live in a pluralistic society, where there is no established religion, let alone a church. As such, the only way we'll be able to get along in the long run is if we keep religion out of the sphere of politics and government as much as possible. This is where liberals are absolutely correct and where we conservatives need to shut up.

4. "The greater the distinction between morality and human rights, the better"

I must confess to not knowing what kind of concept a human right is if it is not a moral one. By appealing to human rights in his endeavour to keep the state out of the bedrooms of the nation, Mr. Reynolds has inadvertently got himself entangled deep within the thickets of the moral realm. If rights are a moral concept (which they are), and if the law is bound to respect and uphold them, then the law is inextricably bound up with morality. And once we are forced to make this admission, then why may not the law also concern itself with morality's broader magisterium?