Of Etiquette, or Small Morals

Below is the latest missive from my distinguished friend, Mr. Darlington. As you will see, he offers his apologies for his recent absence.

* * *

Writ from my Rooms in Cecil-Court, Westminster

April 23, 1755
Sir,

I must apologize for my silence as of late. As you can see, I have come down to the City to attend to some Business relating to the impending Nuptials of my dear daughter Betty. My Rooms here are commodious, although the Neighbourhood is not a felicitous one. Stews and Gin-Shops spring up in the Streets of this City like the Pox, and Cecil-Court is no Exception. Happily, the Delights of Covent-Garden are close at hand, and it is there that daily I stroll with my Cousin, Mr. Savile, who has kindly provided me with my present Lodgings.

‘Twas yesterday, during one of these Perambulations, that we were discoursing upon one of our favourite Topicks, namely the Manners of the Present Age. My Companion juxtaposed the Squalors of the Seven-Dials, a miserable Hive of dirty and besotted Denizens busied in naught but drinking, brawling, jostling, and picking of one another’s Pockets, with the altogether more pleasing sight of the Citizens of Covent-Garden, strolling in their Finery, displaying all the improving Graces of a polite and commercial Prosperity.

“’Tis a thing to be remark’d upon,” quoth my Companion, “this Transition, from the crudest Manners imaginable, to the greatest heights of Refinement perhaps ever attained by any human Society, all in the course of a few Strides. And it is all owing to our English Freedom. For as my Lord SHAFTESBURY has it, ‘All Politeness is owing to Liberty. We polish one another, and rub off our Corners and rough Sides by a sort of amicable Collision’ [Characteristicks, Vol. I, p. 64 — Ed.]. All the shoving and jostling we saw about us in the Seven-Dials is but a necessary Prelude to the Improvement in Morals that is attendant to political Liberty. In time, today’s Dials will be tomorrow’s Covent-Garden.”

“My dear Savile,” I replied, “this may very well prove to be. And yet it is, and hath been for some time, a common Sewer of Vice, and a Nursery for new Villainies. Your coming Age may be a Golden one, but at present,

Nona ætas agitur peiorque saecula ferri
temporibus, quorum sceleri non invenit ipsa
nomen et a nullo posuit natura metallo -

‘We live in the ninth Age, an æra worse than the Age of Iron. Nature herself can find no Name for its Wickedness and has no Metal to label it’ [Juvenal, Satires, 13.28-30 — Ed.]. I am afraid that you mistake Liberty with License. For however much Liberty may be an improving influence, it must first take root in a human Soil made fertile by proper Education and Breeding, else it is a Seed that brings forth naught but Vice and Folly. Rough Manners are more apt to enforce themselves through Repetition, and become Habits, which provide a wide Field for Vice to roam.”

I then related to my Cousin an instructive Tale told by VALERIUS MAXIMUS, which has ever been in my Thoughts since I first read it when I was a young Man at the University. Publius Servilius was an eminent Roman, and a Personage of high Quality. He was a Man who had held every Office, and had been granted all the Honours that a grateful Republick cou'd bestow upon one of its Citizens. One day, he was passing through the Forum when he happened upon a Suit at Law, just as Witnesses were giving Testimony. Servilius immediately interrupted the proceedings, took the Stand, and began speaking unsolicited. He admitted having no Knowledge of the Facts of the Case, nor what point of Law was at issue. He only knew that once, as he was traveling along a narrow Road, the Defendant refused to dismount from his Horse to allow Servilius to pass. According to Valerius, “the Jury found the Defendant guilty almost without hearing the other Witnesses. They were impressed by Servilius’ Eminence and his grave Indignation at the neglect of his Dignity and believed that someone who did not know how to respect our leading Men wou'd rush into any Villainy” [The story is found in Valerius Maximus, Memorable Deeds and Sayings, 8.5.6 — Ed.].

“Mark,” I said to my Friend, “the Roman Citizenry’s Wisdom in that uncorrupted Age; for they knew how jostling may become picking of Pockets, and how shoving and Murder are cousins-german. We each of us have, thanks be to GOD, few occasions to practice the larger Morals. We only learn to disdain the greater Vices by practicing the lesser Virtues. In this way, Etiquette, or what we may call small Morals are to the large, as tilting is to Warfare. If I find a Man knows not his Sword’s Point from its Pommel, I shall place him in the hind Ranks of the Battle Array. And when I find a man who cannot respect the Dignity of his Fellows in the smallest Degree, I am little surpriz’d to discover that he respects not their Property or their Lives, and I shall put him in the hind Ranks of my Trust. For such a Knave makes himself by Degrees capable of any villainy. What is Liberty in a Man of Virtue is mere License in a miserable Creature of this Stamp.”

With that said, we noticed that it had insensibly become late, and we began our homeward Journey.

I am, Sir,
Your humble Servant, etc.
Jos. Darlington, Esq.

When Lawyers Become Metaphysicians

If I had it to do all over again, I probably would have gone to law school rather than study for a PhD in philosophy. For one thing, I’d be wealthier. For another, there would be ample scope left for philosophizing. My dabblings in the law have taught me that there are certain problems in law which are properly philosophical rather than legal. Some of my favourite examples come not from the modern law, but from Roman law.

The Law of Occupatio

The Roman jurists seem to have spent a fair amount of time arguing about something that a philosopher would instantly recognize as the problem of identity. The problem has its origins in the law surrounding the acquisition of property.

For the Romans, as it is with us, there was more than one way to acquire property, but broadly these were divisible into two “modes”, the civil mode and the natural mode. The former dealt with property acquisition in accordance with the laws enacted by the Roman people, which were peculiar to them. The natural mode comprised those ways of acquiring property that seemed to be shared by all peoples besides the Romans. For example, if I am walking through a wilderness, and I pick up a bunch of acorns lying on the ground, I now own those acorns which were previously unowned. This mode was intelligible whether you were a Roman, a Greek, or a Jew. The Romans themselves referred to this mode of property acquisition as occupatio: the appropriation of something previously unowned (res nullius).

Occupatio was relatively unproblematic for the Roman jurists, with the exception of the case of wild animals. With land, possession of unowned land was co-extensive with ownership of it. But with wild animals, ownership only lasted as long as possession; if the animal escaped, you no longer had property in it. This includes wild animals which have been “tamed”, because the Romans thought of wildness as not a characteristic of individual animals, but of the kind to which it belongs. Exceptions were later made for certain animals (e.g. pigeons) that were in the habit of leaving and returning.

Here the English common law differs, for the common law owner of land has a property right in the game on it: if I shoot a bird on your land, the bird is yours, even though I have possession of the bird and you technically don’t.

The Law of Accessio

Things got a little more complicated with things that were a mixture or merger of materials owned by separate persons. Sometimes, the merged materials would pass into the ownership of one owner, to the prejudice of the other. This would be based on the notion that one of the materials is more important in some sense than the other. Examples of this often had to do with land. For example, if I planted seeds on your land, provided they took root, the seeds — and the resulting crops — would belong to you. Similarly if I built a house with my materials on your land. Your ownership of land would in effect give you title to the crop or the house. This mode of acquisition the Roman jurists called accessio. The idea was that some materials are accessory to others, and acceded to them. It seemed that most materials were held to be mere accessories to land. There is no thorough explanation of what exactly makes one material accessory to another, and the rules the jurists developed seem to have been varied and complicated.

What about moveables other than land? The rules here could get pretty complicated. If I make wine with your grapes, and assuming the absence of bad faith or fraud, or of a contract stipulating ownership, who owns the wine? Or who owns a goblet that you make out of my gold? For the Romans, the question turned around whether or not the resulting object (i.e. the wine or the goblet) was to be considered a new thing. The general rule was that if the process leading to the creation of an object could be reversed, and the original materials reconstituted, then the created object was not new and therefore was owned by whoever owned the materials making it up. No new species had been created. So a goblet belonged to the owner of the gold it was made from; because the goblet could be melted down and the gold given back to its owner, the goblet was not a new species. On the other hand, wine was considered new, and belonged to its maker, because wine could not be converted back into grapes.

The Law of Specificatio

In cases like wine, a new object was considered to have been created. Certain implications flowed from this. The idea was that if an object is new, then it is technically unowned, because it is no longer identified with the materials of which it consisted. As such, an unowned object, effectively a res nullius, could be acquired by whoever first took possession of it, just as in occupatio, above. In most cases this acquirer would be the maker of the thing, as he would usually be in the best position to do so. Such appropriation of a newly-created thing was a mode of acquisition which the jurists called specificatio.

For a couple of centuries there were two “schools” of Roman jurists, the Sabinians and the Proculians, presumably named for their first-century AD founders, Sabinus and Proculus. Nobody has yet explained exactly what were the principled theoretical differences between the two schools, but they differed on many specific issues. In particular they seem to have differed on the issue of specificatio.

The Sabinians held that the creator of the new object had right of acquisition by virtue of the very act of creation (thus, by creatio). This is somewhat reminiscent of John Locke’s view of original acquisition as espoused in his Second Treatise of Government (1690), where one acquires unowned property by “mixing one’s labour” with it. The Sabinian jurists did not put it in quite those terms, but the main point is that there was no gap between creatio and occupatio.

Predictably, the Proculians disagreed, holding that creatio and occupatio were different acts. Now, as a matter of fact, the creator would usually be in the best position to take possession (and thereby ownership), but this need not be the case. For example, I could stomp your grapes and leave the juice to ferment, and you could slip in and repossess the juice after it had been converted into wine. Here much would depend on at what exact point the material in question ceased to be what it was and became something else. Was it after the grapes had been stomped? Or at some point along in the fermenting process? Or not until it had been decanted?

Notice though that these kinds of questions would arise for Sabinians too, for even without a gap between creation and ownership, one still had to determine when creation actually occurred. Obviously, there was much room here for juristic discussion.

Of Books and Paintings

Not all the cases discussed in the texts of the jurists fall neatly into the scheme of occupatio, accessio, and specificatio. In his Institutes, the jurist Gaius (2nd century AD) mentions two contrasting cases. He held that “what someone has written on my paper or parchment is mine even if it is in letters of gold, because the letters become part of the parchment” (II.77). So the writing accedes to the parchment, a seemingly clear case of accessio. But in the next section he writes that “if someone has painted something on my board, such as a portrait, the opposite rule holds; the preferred view is that the board accedes to the painting. The reason given for this difference is scarcely adequate” (II.78). So Gaius repeats the received and seemingly contradictory opinion, while claiming ignorance as to the reasoning underpinning it.

The strange inconsistency is repeated a few centuries later in Justinian’s Institutes (6th century AD): writing becomes part of the parchment, while in the case of a painting, “our view makes the picture prevail over the board.” Here Justinian gives us a hint as to his — rather inadequate — reasoning, for “it would be ridiculous for a picture by Apelles or Parrhasius to accede to a board worth almost nothing” (2.1.34). In other words, it is the painting that makes the value of the object, not the board. But what if the painting is simply very bad? And why does Virgil’s writing of the Æneid on a parchment not in the same way make the greater part of the value of that parchment? Modern scholars have been unable to give a good explanation of these cases, and there is no elucidation in the texts which have come down to us.

I would note a couple of things about the texts. In the cases of writing on parchment, Justinian’s Latin reads “chartis membranisve” and the earlier text of Gaius reads “cartulis sive membranis” (literally “paper or skin”). “Paper” would presumably mean papyrus, and by “skin” is meant sheepskin or vellum. Now, by the standards of the times, these were fairly expensive manufactured items, by no means as cheap as modern paper. It is notable that there is no mention of the wax tablets that would certainly have been the more commonly used writing surface. Furthermore, vellum in particular could be scraped clean and re-used (indeed, the text of Gaius was discovered in the Vatican in the form of a palimpsest or overwritten parchment). The frequency with which this was done gives some indication of the value of parchment. Presumably ink was nowhere near as expensive, even if the letters were of gold.

A board was not typically very expensive. But paints certainly were. For one thing, a painter would normally have to make his own paints; it did not come in tubes from an art supplies shop. And many of the pigments used would be made from quite precious materials. For example, in his Natural History (Bk. 35), Pliny bemoaned the fashion of artists in his time to use ever more exotic colours made from luxurious materials, the costs of which were now being paid by the commissioners of works rather than the artists themselves (which might explain how legal disputes of this nature would arise). When it is remembered that much more paint would go on a board than ink would go on a parchment, we begin to see a possible basis for the distinction between the two cases. At least, this is the best rationalization that I can come up with.

Rights in personam and Rights in rem

Some of these rules may have seemed rather harsh to the persons involved. If you made wine with my grapes, I lost my grapes, while you seemed to gain wine at my expense. But this was not necessarily the case. For I could still sue you for the cost of the grapes. I just couldn’t sue you for the grapes themselves.

In Roman law, if I lent you my book, I might have a right to possession of that book, which was called a right in rem (a right “to the thing”). Or I might have a right against you for the value of the book, which was called a right in personam (a right “in the person”). In cases of accessio and specificatio, what happened was that a right in rem was converted into a right in personam.

Was this a distinction without a difference? Definitely not. For example, if I lent you a book, and you later became insolvent, my right in rem to the book allowed me to get it back before your assets were liquidated to pay off your debts. If my right to it was only in personam, I would have to wait my turn in line with all the other creditors to get back the value of the book from your liquidated assets — if enough remained.

Thus, although you might lose your board to my painting, nonetheless you still had a (somewhat weaker) right against me for the value of your lost board.

Why I Am Not a Libertarian

In my last post I promised an explanation of why I’m not a libertarian. I would now like to redeem that promise, however sketchily. In the same posting I also mentioned that if I had to characterize myself politically, the closest label would be “Red Tory”. I will clarify this as well.

Why I Am a Red Tory

A Red Tory is a conservative of a somewhat peculiar sort. Often, in everyday political discourse, libertarianism (like other positions of a “classical liberal” stripe) is mistakenly considered to be a “right wing” or “conservative” position, although I’m not really sure why. While libertarianism is notable for its staunch defense of the market order, conservatism proper has traditionally been associated with the critique of capitalism and the defense of a more traditional, agrarian, order. I suspect that libertarianism and conservatism have become yoked together in the popular mind because of a perceived shared association with the interests of the wealthy (and there is certainly some truth in this). In any case, there are important differences.

Libertarians defend individual liberty as a fundamental value, indeed the fundamental value. It is fundamental for them because it underpins another position, which we can call value pluralism. The core idea of value pluralism is quite simple: there are as many things of value as there are people who value them. Each of us has his or her own conception of the good life, and liberty is fundamental because it is what allows us to pursue our individual conceptions of the good life. To paraphrase John Stuart Mill, each of us is involved in our own experiments in living, and each of us is best placed to judge of what will make us happy.

A caricatured version of conservatism, on the other hand, is held to believe that a society can only be kept coherent by a single shared conception of the good, and of a life based on it. Let us call this position value monism. Now, I do not agree with value monism. So in what sense am I conservative?

I agree that there are many valid conceptions of the good (though perhaps not as many as libertarians believe there are). But I also believe that collective experience and common sense have shown us that there are also some conceivable lives that are bad for those who live them. To use Mill’s metaphor again, there are some “experiments in living” that have already been tried, and the results are in: there’s no need to repeat these experiments, because they are eliminable as candidates for the good life.

For example, no parents would wish their child to become a drug addict or prostitute (which is why I hate the media euphemism “sex worker” — no journalist who is also a parent would view “sex worker” as a valid career choice for their own children, so why do they play at pretending that it is one for other people’s children?). And insofar as life presents certain traps that may lead one into such a life, the government has a legitimate role in eliminating them. Nay, not only a legitimate role — a duty.

Associated with this idea is the conservative’s view of human nature as fundamentally imperfect in certain respects. Libertarians, and liberals more generally, assume that we are each of us rational, and that left to ourselves, and with all the necessary information, we will make the right choices (or at least will readily learn from our mistakes, which are presumed to be mostly harmless). Conservatives are less sanguine about human rationality, otherwise we would not need protection from the sorts of things that reliably tempt people into bad lives.

I admit that the more I learn about human nature, the less confidence I have in its supposed rationality. The findings of social psychologists more and more point to the many systematic cognitive errors and biases to which we seem to be prone.

Against System?

Conservatives are often taken to be against rational systems, for as Lord Shaftesbury put it, “the most ingenious way of becoming foolish is by a system.” I agree with this sentiment, and for the following reason.

Knowledge is not something contained in any one mind. In some cases, as paradoxical as it may sound, knowledge is not to be found in any mind at all. Rather, it is deposited over time, like alluvial sediment, in our institutions, practices, customs, and ways of life. Therefore, conservatives are rightly suspicious of any attempts to destroy these to make way for new, more “rational” schemes, whether the scheme be Marx’s communism or Adam Smith’s “invisible hand”. As experience ought to have taught us again and again, such schemes often have unintended consequences that are far worse than the ills they were meant to correct.

For the Status Quo?

This conservative attitude (for it is not really a theory) often leads to the accusation that conservatives are simply concerned to defend (to conserve) the status quo, regardless of how indefensible the status quo might be. They are accused of believing that, in Pope’s words, “whatever is, is right.”

This is not fair. The status quo is not the last word in any argument. But it ought to be the first word. Before we go about changing things, especially in favour of a new rational scheme thought up by projectors, bureaucrats, and stock jobbers, we should at least make the attempt to understand what we propose to get rid of. We should try to understand why things might be the way they are, and to preserve whatever might be good about it at the same time that we remedy what must go.

People have a fetish for novelty; they like to snatch at shiny things. But razor blades and broken glass are shiny too. It is often the dustier bottle that contains the finer wine.

Why I Am a Red Tory

So much for my Toryism. In what sense am I a Red Tory? If I were to list the items I believe the good society should have, my list would differ little from a social democrat’s. For example, I believe in a publicly-funded health care system, some form of unemployment insurance, and I even believe in a guaranteed minimum income. On the face of it, this puts me far to the left of the political spectrum in many jurisdictions. These things are certainly anathema to a libertarian.

(Incidentally, I do not believe in public education as it is now practised. It has proved itself an utter failure. On the other hand, my conservatism tells me we should keep it for the time being, because plausible alternatives — such as some kind of voucher system — seem impractical at present.)

Interestingly, what separates me from the left on these issues also differentiates me from libertarians, for I do not believe that people have a right to public health care or unemployment insurance. In fact, I am not convinced that people have rights to anything at all, at least not if we mean by “rights” something that is universal, natural, inalienable, and [insert your inflationary adjective of choice here].

Social democrats believe that people have a right to egalitarian social programs. Libertarians believe that people have a right to liberty, which would be violated by such programs. This indicates how unprofitable “rights talk” is. At best, I think such language is aspirational, a way of talking about things we might like to have. In another way, rights are like the Bogeyman: they’re useful to scare or awe people into good behaviour, but they don’t actually exist.

Instead, I believe that such social programs are best justified by appeal to collective experience, as well as by an impartial examination of history. These tell us that too much inequality undermines social solidarity and is bad for society. Furthermore, such social programs have proven themselves conducive to the collective health and happiness of society. We do not need to appeal to rights. We need only appeal to the needs of the community, and such an appeal is eminently conservative.

To those citizens of means who do not need such programs, who would rather opt out of contributing to them, and who feel like their pockets are being picked to pay for them, I would beseech them to reflect on how much of their own well-being is dependent on the well-being of the rest of society, a well-being that is buttressed by precisely such programs.

None of this implies that social programs cannot be improved with an eye to better administrative efficiency and effectiveness, nor should we necessarily give in to the temptation to expand them indefinitely. It is here that libertarian critiques may be of some service.

Robert Nozick, "Anarchy, State, and Utopia"

Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).

There are some books I have found myself in love with, despite disagreeing with almost everything the author has to say. My next favourite book is one of these. The book in question is Anarchy, State, and Utopia, by the Harvard political philosopher Robert Nozick (who, incidentally, died in 2002).

As a bit of pointless trivia, there is an episode of The Sopranos which features this book as a prop. A man who has witnessed a hit by Tony Soprano’s crew gets a call from the police, telling him that the charges against the mobsters have been dropped. When his phone rings, the man is sitting in his living room, reading a copy of Anarchy, State, and Utopia. I’m sure there is no particular plot-based reason for this choice of reading material.

Now, some warning is in order. The book is very controversial, having become one of the most influential works of libertarian thought ever written. And Nozick himself does not pull any punches. For example, he is notorious for having suggested that taxation is akin to forced labour. Therefore, in case you are scared off by the misconception that I am some kind of radical libertarian, I can assure you that I am not. Although liberty is a very important value, it is not the fundamental one. There are other values that, depending on circumstances, may have just as much claim on us as liberty. Having said that, liberty is not something to be cavalierly bargained away for magic beans or bread doles.

(If you must ask, if I had to force a political label upon myself, I suppose the closest fit would be “Red Tory” — see http://en.wikipedia.org/wiki/Red_Tory — but with serious reservations).

On the other hand, reading Nozick’s work was the final nail in the coffin of my youthful flirtation with socialism. In a nutshell, Nozick begins by arguing for the legitimacy of some kind of state, as opposed to mere anarchy. On the other hand, the only kind of legitimate state he sees is what he calls the “minimal state”, one whose powers are largely limited to the protection of citizens from internal or external violence, and a few other functions, such as the protection of property rights, the redress of injury, and enforcement of contracts. Anything more than a minimal state would involve coercion and violation of individual rights and, as such, would lack legitimacy. Anarchy, State, and Utopia is a long, densely argued work. Personally, I am unconvinced, but just as I haven’t the space here to do justice to Nozick’s argumentation, so I also lack space to fully articulate the reasons for why I disagree with him. Instead, I wish to focus on one important aspect of his work, namely his conception of distributive justice, as laid out in the tour-de-force Chapter 7. It is this chapter that has had the most influence on my thinking.

Rawls and Distributive Justice

Nozick embarks on a lengthy examination of distributive justice in Chapter 7 because he wants to examine the claim that a more-than-minimal state can be justified on the grounds that only such a state can achieve distributive justice. So, what is distributive justice? The simplest way to put it is that distributive justice deals with the question of who gets what, and for what reason?

Nozick’s views make much more sense if we see them as a response to a particular theory of distributive justice, namely that put forth in John Rawls' A Theory of Justice (1971). Rawls’s book has the reputation of being the greatest work of political philosophy of the 20th century, and perhaps one of the greatest ever written. Personally, I think Rawls is one of the most over-rated philosophers of all time, but perhaps my opinion is tainted by the amount of time I had to spend studying his work in both of the universities at which I studied. However, at the time that Nozick wrote, one couldn’t swing a dead cat in a room full of intellectuals without hitting a Rawlsian (and in some philosophy departments it’s still that way).

Rawls presented a social contract theory which seems to justify a redistributive state. It is based on a thought experiment called “the original position”, in which a collection of people get together to agree on the basic principles of justice that will structure the state they are trying to achieve. They do so behind what Rawls calls the “veil of ignorance”: nobody knows anything about their personal characteristics, or their talents and “natural assets”; and most importantly, nobody knows what socio-economic position they will occupy in the new state.

Rawls argues that in the original position, bargainers would opt for principles that will maximize the position of the worst off, given the possibility that any of them could end up being among the worst off. Thus, they will agree on principles of distributive justice that will embody some degree of egalitarianism. Inequality would thus only be justifiable if the gains of the better off would also improve the lot of the worst off. Otherwise, equality must be preserved, even at the cost of redistribution.

Nozick’s Entitlement Theory

Nozick’s theory of distributive justice is called the “entitlement theory”. He says, first off, that we should not view goods like property and wealth as manna from heaven, dropped in our laps out of nowhere, to be divided up amongst us according to some abstract principle of justice. Such goods are not just dropped here, for the most part. They are produced, by people. Moreover, the pie to be divided up is not a fixed one; it is not necessarily the case that one person’s larger share must mean someone else’s getting a smaller share.

For Nozick, one is entitled to one’s holdings if they are held according to any of the following principles:

1. They are held according to the principle of just acquisition.
2. They are held according to the principle of just transfer from someone who is entitled to them.
3. No one is entitled to their holdings except by (repeated) applications of 1 and 2.

(To these, Nozick adds a principle of corrective justice, stating that one can acquire one’s holdings through rectification of another’s unjust appropriation.)

Patterned vs. Unpatterned and Historical vs. End-State

Nozick makes two distinctions between kinds of principles of distribution. According to one, a principle may be patterned or unpatterned. If it is patterned, then the resulting distribution will be one that could not plausibly have arisen through chance. The clearest example would be a distribution that is strictly egalitarian. Any principle of the form “To each according to his X” would result in a patterned distribution, in which those who are X hold more than those who are not X.

The other distinction is between principles that are end-state and those that are historical. End-state principles assess the justice of a distribution on the basis of a current time-slice of that distribution. Thus, strict egalitarianism might judge an equal distribution to be just, regardless of how it got to be that way. By contrast, a historical principle is concerned with how that distribution came about.

Rawls’ theory of justice is patterned and end-state. Given the above, we can see that Nozick’s entitlement theory is unpatterned and historical. He illustrates this with his famous example of Wilt Chamberlain.

Wilt Chamberlain

Nozick has us imagine a particular patterned and end-state distribution, for simplicity’s sake, let it be strict egalitarianism, where everyone’s holdings are the same. Now, imagine that based on his talents Wilt Chamberlain (for those too young to know, Wilt Chamberlain was once a famous basketball player) cuts a deal with his team’s owners for part of the gate receipts to their games. The team agrees to this. Now, every time people come to see his team play, Chamberlain gets 25 cents. A million people come, so soon he has amassed $250,000. Chamberlain now has much more money than everyone else (with the possible exception of his team’s owners). Is the resulting distribution unjust? It is certainly unpatterned, given that the egalitarianism has been broken up — as Nozick puts it, liberty upsets patterns.

According to Nozick, it is not unjust, because Chamberlain has become rich as the result of the individual choices of all the people that came to see him. So long as (by hypothesis) the spectators held their money justly, they justly transferred a part of their holdings to Chamberlain. Because we can only judge the justice of the resulting distribution on the basis of on how it came about, Nozick’s entitlement theory is historical.

Now, the previous egalitarian distribution can only be restored through forced redistribution, which can only occur through violating the principles of justice in holdings outlined by Nozick. The state must effectively steal money from Wilt Chamberlain and give it back to the people who gave it to him of their own volition. Thus, a redistributive state must resort to injustice in order to preserve its chosen conception of distributive justice. It is in this context that Nozick compares redistributive taxation to forced labour — working as the instrument of the wishes of others.

Private Property and Redistribution

Some of these ideas are not new. In his Politics, Aristotle gave what to me is still one of the best arguments for a regime of private property I have come across. Aristotle said that private ownership of property gives greater scope for the exercise of the virtues. “Common ownership” is a misnomer, he says, because under such a regime, nobody really owns anything. And if you can’t own things, you can’t give anything away, for you cannot give away what is not yours. Therefore, under common ownership, it becomes impossible to truly exercise the virtue of generosity. And if generosity is fundamental to friendship, then true friendship becomes impossible under this regime. And friendship is a very important arena for the exercise of many other virtues.

I imagine that without the possibility of generosity and friendship, social life would lose much of its lustre. I have had the privilege of speaking with many people who have had the experience of living under communist regimes, and this is one of the things they always point out to me, that the state sinks its tentacles even into personal relations. It is ironic that a system like communism, supposedly based on the notion of solidarity, should be so adept at undermining it.

Friedrich Hayek, in The Road to Serfdom (1944), made an argument similar to Aristotle’s. We tend to think highly of ourselves when we approve of various redistributive schemes our governments propose, but before we pat ourselves on the back for our generosity, we should always ask ourselves whether it is really our money we are proposing to spend. For as Hayek puts it, “we are neither entitled to be unselfish at someone else’s expense nor is there any merit in being unselfish if we have no choice. The members of a society who in all respects are made to do the good thing have no title to praise.”

As I’ve already mentioned, Nozick’s book is a great part of the reason why I am no longer a socialist. But despite my rather charitable presentation of Nozick’s ideas, he has certainly not converted me to libertarianism. I hope to outline why I am not a libertarian in a future posting.

Locating an Ethical Dilemma

In the past couple of days my local media have been reporting a story which they say poses a “heart-rending ethical dilemma”. I admit that, upon first hearing about it, although I could understand its being heart-rending for those involved, I could not immediately see the ethical dilemma. As more time goes by, each report gives out a little more information, although I still feel I’m missing some essential piece of information in order to see wherein the dilemma lies. I take this as an example of how poorly-educated journalists are on ethical issues, and how seldom they stop to consider the implications of what they are saying. In any case, here is the story, at least as far as I can piece it together.

Kaylee is a baby who was born with a brain malformation and is unable to breathe without a machine. No report I have seen has given any more detail about her condition than that. For convenience’s sake, I am going to make the assumption that she is for all intents and purposes brain dead and beyond hope of recovery (I would like to know more before making any hasty judgments, but unfortunately that is all the media have given out). Another baby, Lillian, was born with a heart defect that will kill her unless she receives a transplant. Lillian is in the same hospital as Kaylee.

As it was first reported, the “dilemma” seemed to be about whether or not it was ethical to “harvest” Kaylee’s heart at all, which struck me as odd, because such “harvests” — I shudder at the terminology — are fairly routine. The parents wanted it. The prospective recipient’s parents desperately wanted it. There seemed to be no legal issues involved (e.g. it was not a case of active euthanasia). And yet, the hospital was reluctant. Why? The media did not yet bother to inquire. In the absence of the hospital’s motivation, one got the impression that they were callous bureaucratic monsters, denying the gift of life to a little baby for no good reason.

Then, in subsequent reports the story’s emphasis shifted. It was no longer a matter of the harvest as such. Rather, it was now a question of how useful Kaylee’s heart would be: she would take some time to die once taken off life support, and thus her heart might in the process become too damaged for transplant. The thing is, however true this may be, if there is a dilemma at all here, it is a practical one, not an ethical one.

Later, when reported on again, the story seemed tentatively to have something to do with whether the heart should go to Lillian, or to whoever is next on the waiting list. Finally! We are now arriving at some kind of an ethical dilemma. Certainly the situation is ethically fraught. Still, I am not convinced that there is a dilemma here, for what is ethically required seems quite clear: the heart must go to whoever is next on the transplant waiting list.

In the very latest version of the story I heard reported, Kaylee’s parents approached Lillian’s parents on their own initiative, offering their daughter’s heart. In such circumstances, it may seem callous of me to suggest that this very personal relationship forged between these two sets of parents should be set aside because of some list of faceless and personally unknown people who may not be quite as cute or present as Lillian. When good can be done here and now, for someone you know, why look for a different opportunity to do good elsewhere?

In short, because to do so would be let one’s feelings — strong as these might be — lead one into committing a gross injustice. This can easily be seen when we engage in a bit of “in-the-other-person’s shoes” thinking. Let’s begin with the concept of a transplant waiting list.

The waiting list for organ transplants will normally rank patients based on multiple criteria, for example HLA (Human Leukocyte Antigen) match, waiting time, expected improvement in length and quality of life, and so on. Now, based on the various criteria, it may just happen to be the case that Lillian is next in line, although that determination must be made by medically-trained hospital staff, not by a personal agreement between parents.

Besides the medical issues involved, think for a moment of all the opportunities for bias that would arise from relying on such personal preferences to determine who gets an organ. It’s not hard to imagine that it would be easier for Kaylee’s parents to forge a personal relationship in the hospital with parents of a similar culture, ethnicity, etc. Would they have struck up a relationship with Lillian’s parents if the latter didn’t happen to speak English? Should ability to speak English be a deciding factor in who gets a life-saving transplant?

Or as bad, what if leaving it to the parents’ determination opens up the possibility of profit becoming a factor? Isn’t it better, then, to leave such a decision to a more impersonal process? After all, if I haven’t power to decide who will get my organ, then I cannot demand payment (whether over or under the table).

I cannot speak to the exact nature of the relationship formed between the two sets of parents, so perhaps it is better to leave that issue aside. Let us instead assume that Lillian would not happen to be next on the list, based on whatever criteria are used. Perhaps there is someone else who has been on the list longer, or who would be an even better match. Such a hypothetical person is exactly the person whose shoes we should be putting ourselves into, so imagine that person is you. Would you not want to know why someone else got that heart and you did not? Would you be comforted by knowing it was because you were in the wrong place at the wrong time and didn’t have the opportunity to schmooze the donor’s parents personally? The media seem to present the case as one of compassion thwarted by an unfeeling bureaucracy. But from the point of view of the person who is first on the waiting list, it is a straightforward case of queue-jumping.

A Globe and Mail article (April 7, 2009) characterizes the case as “a medical and ethical debate over whether parents can decide who receives their children's organs.” This worries me. It seems to view organs as a form of property, where the only question is who gets to dispose of that property; once this is answered, it seems to be implied that the “property” can be given to whomever the “owner” (or in this case the “heir”) chooses. I can choose whom I will sell my house to: if I happen to dislike black people, they will not get to purchase my house. Do we want a similar regime in place for organs, the very “stuff of life”? Should whether you live or die be based on whether I like the look of your face, the colour of your skin, or the “cut of your jib”?

The parents are proxy decision makers, but that is a very different thing from being a property owner. They are more like trustees. They are to decide whether the organ is to be donated or buried. If they decide in favour of the former, the donation process, which is in place for very good reasons, should take over from there.

All of this aside, organ donation is probably the easiest, and at the same time most meaningful, charitable donation you can make. So please sign your donor card.

* * *

P. S. I now hear that the hospital has decided in favour of giving the heart to Lillian’s parents. If true, then I’m glad that Lillian will get a new shot at life. But I truly hope that the decision wasn’t made simply because the hospital bowed to media-generated pressure, or because they let personal feelings get in the way of their better judgment. Because if that’s the case, they should remember that somewhere there is another set of parents whose child will die of injustice.

P. P. S. Here is the latest on the story (as of noon, April 8, 2009): Kaylee was taken off of her respirator. However, she did not stop breathing as doctors had predicted. Therefore she is no longer considered a candidate organ donor. Lillian must continue her wait (although she is now at the top of the waiting list).

Moreover, Kaylee’s actual disorder has now been named. It is Joubert syndrome. Given its description (http://en.wikipedia.org/wiki/Joubert_syndrome), and in the absence of further details, it may have been hasty to work from the assumption that she was essentially brain dead. If she was not, then herein may lie the real ethical dilemma that the media were at first mentioning (they have now stopped referring to any such dilemma) — she may have been quite conscious and sentient at the time she was taken off the respirator. In any case, it is my opinion that the media have been in gross dereliction of duty throughout this entire episode.

Death's Thousand Doors

In a previous posting (“Never Trust a Judge to Do a Philosopher’s Job”) I quoted Seneca’s Phoenissae, l. 152: “Anyone can stop a man’s life, but no one his death; a thousand doors open on to it”. The “doors to death” metaphor has been a common one through the ages. The image seems to be most characteristic of the Stoics, though it is to be found in other classical sources.

Among the ancients, it appears in the following sources: Epictetus, Discourses, 1.9: “Slave, if you get it, you will have it; if you do not get it, you will depart; the door stands open” and I.25: “For one ought to remember and hold fast to this, that the door stands open.” There is also Virgil, Æneid, 6.127: “Noctes atque dies patet atri Janua Ditis” (“The Gates of Death are open Night and Day”); and Juvenal, Satires, III.274-275: “adeo tot fata, quot illa / nocte patent vigiles te praetereunte fenestrae” (“As you pass by at night, there are precisely as many causes of death [literally “fates”] as there are open windows watching you”).

Among later authors we have Michel de Montaigne, Essays, II.3 (“A Custom of the Island of Cea”): “She [Nature] has ordained only one entry into life, and a hundred thousand exits”; John Webster, The Dutchesse of Malfy (1623), IV.ii.215-216: “I know death hath ten thousand seuerall doores / For men, to take their Exits”; Sir Thomas Browne, Religio Medici (1643), Pt. I, §44: “and considering the dores that lead to death [I] doe thanke my God that we can die but once”; Philip Massinger, A Very Woman (1655), V.iv: “Death hath a thousand doors to let out life”; and John Milton, Paradise Lost, XI.466-470:

"Death thou hast seen
In his first shape on man; but many shapes
Of Death, and many are the wayes that lead
To his grim Cave, all dismal; yet to sense
More terrible at th’ entrance then within."

In addition, there is Jonathan Swift, A Tale of a Tub (1704), “Epistle Dedicatory”: “Books, like Men their Authors, have no more than one Way of coming into the World, but there are ten Thousand to go out of it, and return no more”; Lord Shaftesbury, Characteristicks of Men, Manners, Opinions, Times (1711), I.179: “But tho there are Doors enow to go out of Life, they find it convenient to keep still where they are”; Joseph Addison, Guardian No. 136 (17 August 1713): “Some of our Quaint Moralists have pleased themselves with an Observation, that there is but one Way of coming into the World, but a thousand to go out of it”; and Addison, Cato: A Tragedy (1713), V.ii.14-18:

"Now, Caesar, let thy troops beset our gates,
And bar each avenue, thy gathering fleets
O’erspread the sea, and stop up every port;
Cato shall open to himself a passage,
And mock thy hopes."

Lord Shaftesbury, "Characteristicks of Men, Manners Opinions, Times"

Lord Shaftesbury, Characteristicks of Men, Manners, Opinions, Times (Indianapolis: Liberty Fund, 2001).
I’ve spent several years of my life studying philosophy, finally earning a doctorate in the subject (and thereby educating myself beyond the hope of gainful employment). And yet, in all that time, the name of my favourite philosopher was uttered not once by any of my professors in any of the many philosophy courses I took. That favourite philosopher is Anthony Ashley Cooper, 3rd Earl of Shaftesbury (1671-1713), author of Characteristicks of Men, Manners, Opinions, Times, which is absolutely my favourite book of all time. I cannot adequately do justice to this complex and fascinating work here. Instead, I will merely give an outline and a select bibliography for anyone interested in reading further. In addition, I have the unpublished manuscript of a book I wrote on the work, and if anyone is interested in it, I will happily e-mail it to them.

* * *

Shaftesbury (pictured above) was the grandson of the first earl, political rabble-rouser, one of the founders of the Whig party, and celebrated (or rather reviled) by John Dryden in his “Absalom and Achitophel” (1681) in the character of Achitophel (1681), ll. 151-155: “A Name to all succeeding Ages Curst. / For close Designs, and crooked Counsels fit; / Sagacious, Bold, and Turbulent of wit” (ll. 151-153). The first earl escaped treason charges by fleeing to Holland, where he died in 1683. The second earl, the father of our author, was by most accounts useless, so the grandfather exercised a disproportionate influence on the life of his grandson, who inherited his legacy of religious toleration, freedom of speech, a hatred of tyranny, and republicanism and firm Whig principles.

The third earl destroyed his health — which in any case was never very robust — pursuing an early political career. Afterwards, he retired to a life of study and contemplation. After a late marriage, he took himself to Naples for health reasons, where he died in 1713. From what I can make out, it is quite probable that he was homosexual, but that is neither here nor there.

Characteristicks of Men, Manners, Opinions, Times (hereafter, simply Characteristicks) is in reality a collection in two volumes of Shaftesbury’s previously published writings or “treatises”, tied together and supplemented by a third volume of “miscellaneous reflections” on the foregoing by Shaftesbury, writing in the voice of an anonymous (but appreciative) critic.

The first edition appeared in 1711. However, Shaftesbury was busily revising it for a second edition while in Naples, and he commissioned a set of incredibly fascinating emblematic engravings from Simon Gribelin to illustrate its contents. To give you some impression of their beauty, the pictures at the header and footer of this webpage are details from two of those engravings. This second edition appeared in 1714, following Shaftesbury’s death.

There have been many editions since then; indeed, despite its current obscurity, it was one of the most frequently reprinted English works of the eighteenth century. The 1714 edition appears pretty much as Shaftesbury would have wished and is in that sense standard. The best modern edition is that published by Liberty Fund in 2001. It is the best for several reasons. First, it is relatively inexpensive and easy to acquire. Second, it contains quality reproductions of Gribelin’s engravings, which are an integral part of the work and should never be omitted from it. Third, it is divided appropriately into three volumes, and conveniently gives the pagination to the original edition in the margins; this is important, because the engravings have numbered references to certain passages. Fourth, it provides translations of Shaftesbury’s Greek and Latin quotations. If it has any flaws, it is that there are too few explanatory notes: for these the reader must consult Philip Ayres’ Oxford University Press edition (1999), which besides being very expensive and rare, has many other drawbacks.

Volume I
The first volume consists of three treatises: (i) A Letter concerning Enthusiasm, (ii) Sensus Communis: An Essay on the Freedom of Wit and Humour, and (iii) Soliloquy: or, Advice to an Author.

The Letter was originally published anonymously in 1708. Interestingly, when it came out, many of Jonathan Swift’s friends assumed it was his (for his part, Shaftesbury cordially hated Swift’s work). It is now a very rare pamphlet, but I happen to own a first edition of it. It was written as an occasional piece, ostensibly on the subject of the Camisards or so-called “French Prophets”, a sect of French Protestants who had come to London fleeing persecution. They upset many with their habit of preaching the coming Apocalypse loudly in public places, along with speaking in tongues and various other “enthusiastick” behaviours. They were perceived by many to be a threat to public order, and there were calls for their suppression. Shaftesbury, on the other hand, becomes their unlikely defender. He argues that there will always be “enthusiasts”, and their activity is compared to the discharge of unhealthy and excessive humours. It is best to let them vent some steam, lest it come out in other ways that could be even more damaging to public order. To suppress them will only worsen things, and might even gain them adherents and sympathizers by making them appear as martyrs. In short, enthusiasm is normal and even necessary, while excessive enthusiasm is seen as a quasi-medical or physiological condition which must be allowed to run its course. The work abounds in medical metaphors.

Sensus Communis (literally, “common sense”, though in Shaftesbury’s time it did not quite mean the same thing as it does to us) was first published in 1709, and picks up where the Letter leaves off. It presents what Shaftesbury’s critics came to call his “doctrine of ridicule”. In effect, Shaftesbury suggests that if you really want to get rid of ethusiastics like the Camisards, the best way is to subject them to polite ridicule. We lend them too much credibility when we take them seriously. Rather we should subject them to raillery, making them look ridiculous rather than dangerous. We should also not be afraid to subject other religious claims — even established ones — to ridicule, for if there is any truth to such claims, the truth will prevail and the ridicule will seem ridiculous in its turn. Thus, satire plays a vital function in the marketplace of ideas. We ought not to be afraid of offending, so long as the discourse is carried out in a “polite” manner (one must read the rest of his works to understand exactly what Shaftesbury means by “polite”). As he puts it, “all Politeness is owing to Liberty. We polish one another, and rub off our Corners and rough Sides by a sort of amicable Collision. To restrain this, is inevitably to bring a Rust upon Mens Understandings.” Perhaps this seems to our modern ears hopelessly naïve and optimistic, but it was a novel and very controversial idea at the time.

Besides his doctrine of ridicule, Sensus Communis insensibly turns into a piece of moral philosophy, criticizing the then-fashionable theory of Thomas Hobbes that man is essentially a selfish animal, who only does good for self-interested reasons. To this, Shaftesbury rightly says that “for those who have no better a Reason for being honest than the fear of a Gibbet or a Jail; I shou’d not, I confess, much covet their Company, or Acquaintance”. Most of us refrain from murder because it is wrong, not because we are afraid of punishment.

Soliloquy first came out in 1710, and was ostensibly a work of literary criticism, purporting to advise authors on effective writing. In reality, it is more far-reaching, presenting us with a prescription for moral self-development. In short, Shaftesbury advises us to make a habit of literally talking to ourselves. We have two selves within us, one of which is the voice of conscience or reason. We must develop the habit of listening to this voice, and the best way of doing so is to let it speak. That is the best way to find out how ridiculous we are, thus saving us from public embarrassment and moral lapse. In my opinion Soliloquy is one of Shaftesbury’s best pieces (the other being The Moralists, below), but it contains too much brilliance for me to do justice to it here.

Volume II
The second volume contains the core of Shaftesbury’s philosophy. It consists of two treatises: An Inquiry concerning Virtue, or Merit, and The Moralists, a Philosophical Rhapsody. The Inquiry was originally an early work, published in 1699. It was published without Shaftesbury’s permission, and according to tradition, he tried to buy up and destroy the entire printing. He thoroughly reworked it for inclusion in Characteristicks. Insofar as modern philosophers pay any attention to Shaftesbury at all, their attention is focused almost exclusively on the Inquiry, probably because it is the most “philosophical” of his works, the most systematic and treatise-like. Unfortunately, it also happens to be a very limited window on Shaftesbury’s thought as a whole. To know him through the Inquiry is to know him little. Shaftesbury himself criticizes this early work, and the dry kind of philosophizing it contains, in the third volume of Characteristicks.

The Inquiry deals with two related subjects: the nature of virtue, and the relation between religion and ethics. As far as the latter goes, Shaftesbury sees very little relation indeed, and here he follows his friend Pierre Bayle, who believed that a virtuous society of atheists was quite possible: “If we are told, a Man is religious; we still ask, ‘What are his Morals?’ But if we hear at first that he has honest moral Principles, and is a Man of natural Justice and good Temper, we seldom think of the other Question, ‘Whether he be religious and devout?’.” The rest of the Inquiry is devoted to showing that virtue is to the benefit of the agent and to the system of nature as a whole, while vice is to the agent’s ill. It lays out an optimistic theodicy that came in for much criticism by intellectual lightweights like Voltaire.

The Moralists is possibly the best example of a philosophical dialogue ever written in English. Indeed, it contains dialogues within dialogues, sometimes effectively masking Shaftesbury’s real voice, particularly where that voice might be expressing heterodox ideas. The main dialogue takes place between Philocles and Theocles (whose persona is closest to Shaftesbury’s), recounted in a letter from the former to his friend Palemon. Theocles’ method of philosophy is rhapsody, flights of enthusiastic celebration of the order of things. These flights are expressed in language of supreme beauty, making Shaftesbury one of the most impressive prose stylists ever to write in English (Joseph Addison is second, in my opinion).

Shaftesbury appears as Theocles in Pope’s Dunciad, where is words are transcribed — or transprosed — into blank verse. (Incidentally, Pope lifted much from Shaftesbury’s works without giving him due credit). Bishop Berkeley did the same in his Alciphron, or the Minute Philosopher (1732), which I believe is possibly the second-best philosophical dialogue in English.

Volume III
As mentioned above, the third volume of Characteristicks contains only one work, the Miscellaneous Reflections on the preceding Treatises. Here Shaftesbury shows himself to be a consummate wearer of masks, very much in the spirit of Swift. He takes on the persona of an anonymous critic, and offers systematic commentary on his own work. It is written very much in a spirit of effective irony. For instance, he devotes considerable space to criticising the fashionable practice of writing miscellaneous pieces! His wit is drier, more aristocratic than Swift’s, but one can see why they were so often compared (and confused) by their contemporaries.

Otherwise, the Miscellaneous Reflections are of most interest for the footnotes. Shaftesbury has chosen to wear masks because he has much to say that is unorthodox and controversial, particularly on questions of politics and religion. He has chosen to bury much of this in his notes, much as his friend Bayle was wont to do.

Concluding Reflections
Characteristicks is a complex work and is endlessly interpretable, which is why I have been re-reading it constantly for at least seven years as if it were the Bible. Much of the matter it contains is too subtle, or too disguised, to be captured on first reading. And best of all, it is composed in what is perhaps the most elegant and beautiful English prose ever written — a high commendation indeed, given the barbarous degeneracy of most philosophical writing.

Select Bibliography
BRETT, R. L. The Third Earl of Shaftesbury: A Study in Eighteenth-Century Literary Theory. London: Hutchinson’s University Library, 1951.

GREAN, Stanley. Shaftesbury’s Philosophy of Religion and Ethics: A Study in Enthusiasm. Athens, OH: Ohio University Press, 1967.

KLEIN, Lawrence E. Shaftesbury and the Culture of Politeness: Moral discourse and cultural politics in early eighteenth century England. Cambridge: Cambridge University Press, 1994.

PRATT, James. A Companion to Shaftesbury’s “Characteristicks” [unpublished manuscript].

VOITLE, Robert. The Third Earl of Shaftesbury, 1671-1713. Baton Rouge, LA: Louisiana State University Press, 1984.

Of Geckos and Troubled Assets

Sir William Blackstone, in his Commentaries on the Laws of England (1765-69), Vol. IV, p. 263, described the now abolished royal court of Star Chamber. He offered some possible explanations for why it was called the “Star Chamber”. One of these explanations is that the court was responsible for punishing the crimen stellionatus, in English cozinage (“stella” being Latin for “star”).

Intrigued by the Latin moniker, and having an interest in Roman law, I looked to see if stellionatus existed in Roman times. It did, referring to a specific type of fraud, which I will explain in a moment. But the term has more colour than mere "fraud" would suggest. In Latin, a stellio was a type of gecko whose spots resembled stars. It was the ancient belief that such geckos could shed their tails to escape from predators.

What has all this to do with the crime of stellionatus? Well, stellionatus occurred when a debtor took out multiple loans, using the same property as security for them, without informing creditors of the other outstanding debts against said property. Thus, when the debtor became insolvent, multiple creditors were left holding worthless property, much as one is left holding a gecko's tail while it makes its escape.

In effect, stellionatus literally meant “behaving like a gecko”. It is rare to find modern legal jargon preserving such earthy and colloquial language. The nearest example I can think of off the top of my head is perhaps “racketeering”. If you can think of others, do let me know.

Never Trust a Judge to Do a Philosopher's Job

I have for some time been fascinated by a legal case that I believe to be one of the worst legal judgments I have come across. There are many bad legal judgments out there, but this one I take to be egregious because of the insidious surface plausibility of the justice’s reasoning, which belies a facile and half-assed approach to thinking through the issue involved in the case.

The case is Mallette v. Shulman ((1990) 72 O.R. (2d) 417). Mrs. Georgette Mallette was involved in a car accident and was brought to hospital requiring a blood transfusion. With the transfusion her prognosis was good, without it, bad. Under normal circumstances the transfusion would have been given. However, a nurse found a card in Mrs. Mallette’s purse stating that her wish was not to be given a transfusion, as she was a Jehovah’s Witness. For our purposes, it is important to bear in mind that the card was neither dated nor witnessed. Dr. Shulman was the attending physician. After getting a second opinion, he ordered the transfusion to be given. To cut a long story short, Mrs. Mallette recovered, and subsequently sued Dr. Shulman for assault and battery. Amazingly to my mind, she was awarded $20,000 in damages.

I have countless objections to the reasoning of the judge in this case, Justice Robins. They fall under three heads, of which, the first two are closely related. They are (i) Autonomy, (ii) Respect, and (iii) Damages. I should warn the reader that my comments are for the most part directed to the moral and philosophical aspects of the case. I am an ethicist rather than a lawyer, and so my criticism of the legal aspects of the case will be minimal (though I have a few remarks on this as well).

I. Autonomy

Throughout his judgment, Justice Robins took for granted that the note found in Mrs. Mallette’s purse was the autonomous expression of her will with respect to the transfusion. As such, to disregard the note was to disregard her autonomy as a free moral agent. Justice Robins should not have been so quick to accept the validity of the note.

First, it was undated. If it had been written several years before, should it be taken as expressive of Mrs. Mallette’s will now? This raises the difficult question of what time limitation should be put on a note of such a nature. I submit that, given the life or death consequences of it, if such a note should be accepted at all, it should be within a very short time of its composition indeed. For example, the dissent of McEachern, CJ in Rodriguez v. Attorney-General of B.C. ([1992] 4 W.W.R. 109) effectively suggested any assisted suicide ought to require a certificate obtained through a very rigorous process, and that such suicide must occur no more than thirty-one days after said certificate is issued, or the process must be begun again.

To understand the importance of this, just think of the number of times you have made a decision and then changed your mind. How often in our lives have we found ourselves doing exactly the opposite of what we had made a decision to do? Now, it may be objected that in this case, Mrs. Mallette’s decision is to be taken seriously, because it expresses her religious convictions. But, my personal unbelief aside, all of us can easily think of examples of people who have changed or jettisoned their supposedly firm religious convictions. Religion can have no special or exalted place in deciding such a case as that of Mallette v. Shulman.

Second, the note was unwitnessed. This is an extremely pertinent fact, for how can Dr. Shulman be sure that it was Mrs. Mallette herself that wrote it? Or that she didn’t write it under some kind of duress or undue influence? Or that she was in her “right mind” when she wrote it (i.e. that she wasn’t drunk or stoned or having a manic or schizophrenic episode)? Again, in Rodriguez, McEachern recommended the above-mention elaborate process in order to eliminate the possibility of coercion or duress, as well as to establish competent agency. It is important that such agency should be established where the stakes are so high. It should never be presumed, as Justice Robins seems to have done.

II. Respect

Justice Robins makes the following rather inadequate attempt to explain the significance of the freedom of choice he mistakenly assumes himself to be upholding in this case: “For this freedom to be meaningful, people must have the right to make choices that accord with their own values regardless of how unwise or foolish those choices may appear to others.”

What does Robins mean by “meaningful”? I think he means that my commitment to another’s freedom of choice is made most manifest in exactly those situations where I would be most tempted to intervene in that choice, just as the true test of my commitment to free speech is in exactly those cases where I disagree with what is being said.

Behind such common liberal characterizations there lurks what I take to be a common misconception. Liberals tend to assume that the highest form of respect I can show another is respect for their autonomy. Although in certain situations this may be the case, it is so more rarely than liberals would like to think. On the contrary, I believe that respect for persons is distinct from — and often even in conflict with — respect for their autonomy.

Let’s return to Robins’ fixation on the “meaningfulness” of free choice. I would wonder why it is so “meaningful” for me to have others sit by and allow me to do things they consider to be stupid, life-endangering, or misery-causing, especially in cases where ex post facto I would wish they had done something to stop me. This is what people do who do not care about me. If you were about to commit a foolish act, who would you say respects you more: a friend who warns you and perhaps does what they can to stop you, or a “friend” who politely says nothing, and allows you to bring misery upon yourself? And let us never forgot that all of us do foolish things, things which we wish after the fact someone had at the very least warned us about. It is meaningful to me that others care about me and my well-being, perhaps even more meaningful than that they care about my so-called “autonomy”.

I understand the liberal fear of what is derogatorily called “paternalism”, but I also understand that there are cases where what I prefer to call intervention is warranted. When I see a woman floating facedown in a pond, I ought to attempt to rescue her. Such an attempt is not paternalistic. I do not shrug and say, “Well, she decided to go swimming and should have known the dangers involved.” I do not consider a rescue attempt as disrespectful of her autonomy, or of her humanity. And when I do decide to go in to rescue her, nothing changes if I find a suicide note on her person.

What is the effective difference between Mrs. Mallette’s “do-not-transfuse” card and a suicide note? We are certainly under no legal obligation to heed the latter, so why is the former treated with kid gloves? I speculate that it has something to do with the lurking spectre of religion, but we’d have to ask Justice Robins about that. (I’ve already made clear how little I believe religion should matter in this case, and I will soon have a little more to add.)

I take it as axiomatic that one is never so lacking in autonomy as when one is dead. The dead do not make choices. Taking this into consideration, it would have been more disrespectful to Mrs. Mallette’s autonomy for Dr. Shulman to have respected this one (supposed) choice of hers, at the expense of her ability ever to make another choice again.

III. Damages

Another question naturally arises, one which is as much legal as it is moral: What are the damages suffered by Mrs. Mallette for which she is to be compensated? Has she been deprived of her right to die? Well, to quote Seneca (Phoenissae, l.152): “Anyone can stop a man’s life, but no one his death; a thousand doors open on to it.” In other words, she has the choice of ending her own life any time she wishes, in whatever way she wishes. Indeed, it is thanks to Dr. Shulman that she still has this choice.

To this we can imagine that Mrs. Mallette might reply, “Yes, but my religion forbids suicide.” Then get a new religion. Or none at all. This is a matter between Mrs. Mallette and her religion, and has nothing to do with Dr. Shulman.

Furthermore, whatever agreement Mrs. Mallette has with her co-religionists should not prevent Dr. Shulman from doing that which in the normal course of events he would normally do, and indeed would be obligated to do. This is commonly referred to as the doctrine of “privity of contract”: a contract between two parties cannot bind a third party without his agreement.

At the risk of carrying this contract analogy too far, we can also view it another way. Aside from the problem of the privity of contract, Mrs. Mallette has made what is effectively a conditional suicide pact with her co-religionists. Such a contract is unenforceable at law, in much the same way that contracts to perform criminal acts are unenforceable. There are some things we cannot make binding contracts for. For example, no court will enforce a contract by which I sell myself into slavery. There is a real sense in which Mrs. Mallette has sold herself into slavery, for she has effectively agreed that should such-or-such conditions arise (e.g. a life-threatening car accident), rather than have her life preserved, she will abide by the wishes of her co-religionists and give up her right to ever make another choice again (i.e. she will die).

There are some things the law will not allow us to do, and certainly not if we try to implicate non-involved third parties in the matter.

To re-iterate: whatever “damages” Mrs. Mallette suffered are a matter between her and her religion. If she wishes to worship her bloody-minded gods, that is her business; it is not Dr. Shulman’s business to help her do so.

A Dilemma

Before leaving this case, I would like to mention one more issue. It seems that in that emergency room Dr. Shulman was caught between the two horns of a serious dilemma: he could either (i) give Mrs. Mallette the transfusion and open himself up to being sued by her, or (ii) let her die and have her family sue him. Justice Robins acknowledges this dilemma, only in order to dismiss it — and rather cavalierly, in my opinion. In effect, he says that if Dr. Shulman did (ii) the family could not sue, because the onus of the duty of care was shifted to the patient carrying the note. But we’ve already discussed the dubious validity of the note. Furthermore, where is the law that will back up Robins’ assertion here? He offers none; it is to be taken by Dr. Shulman and other physicians placed in his situation as an article of faith. It is not an obvious article of faith, especially to someone who is not a lawyer and who must make a quick decision in circumstances of life or death. And all of this aside from whatever professional obligations Dr. Shulman was bound by.

I think the dilemma was a real one. Whatever Dr. Shulman did would open him up to tort liability. The law should never place a citizen in such a position. A more thoughtful judge would have cast doubt on the validity of the card, and would also have closely scrutinized the assumption that Mrs. Mallette has suffered any damages.