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Thursday, November 19, 2009
Are Private Vices Really Public Benefits?
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Saturday, November 14, 2009
Of Anger
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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.
Thursday, November 5, 2009
Contract and the Philosophers (Part II)
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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)
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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.
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