A Curious Miscellany of Items Philosophical, Historical, and Literary

Manus haec inimica tyrannis.

Tuesday, December 22, 2009

Christmas Haiku

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, December 9, 2009

Kant on Slavery

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Of Bees

December 10, 1755

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

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

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

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

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

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

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

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

And finally, POPE wisely advises us to

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

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

I am, Sir, your humble Servant,

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

Saturday, December 5, 2009

The Roman Republican Constitution: Some Lessons

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

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

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


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

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

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

Dividing the Imperium: Collegiality

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

Attenuating the Imperium: Annuality

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

Negative Consequences of Limiting the Imperium

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

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

Suspension of Collegiality: The Dictatorship

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

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

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

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

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

Suspension of Annuality: The Proconsulship

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

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

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

Suspension of the Constitution: The “Final Decree”

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

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

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

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

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

Lessons to be Learned

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

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

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

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

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

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

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

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