Administrative Unlaw?

This is not a court.

I recently read a newish book by Philip Hamburger called Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014). The book is one in an ever-growing genre of roughly libertarian legal studies that defend a position that public law (in most cases specifically “administrative law”) as it is practiced today is either (i) degenerate law, or (ii) not really law at all. Usually these claims go along with an implicit or explicit claim that only the common law is “real” law — along with the US Constitution (as interpreted by originalists), if the writer happens to be American.

The genre is not a new one. I have more than once in this blog cited Lord Bury’s The New Despotism (1929) with approval. And I openly admit to being in sympathy with the idea that state action, in the guise of “administrative law”, tends towards overexpansion and poses a threat to liberty. However, when one descends to details, it is more difficult to say why administrative law is so different from other kinds of law in a way that makes it more dangerous/ illegitimate/ arbitrary or less law-like than common law and constitutional law.

Often it is argued that administrative law is a creature of executive power, and hence dangerous. But in a sense all law is the creature of executive power, at least insofar as laws require an executive for their enforcement. When the executive decides to neglect the enforcement of laws duly passed, this too is a form of arbitrary “tyranny” in which the executive usurps authority from the legislature. And yet this phenomenon curiously gets ignored by libertarians, though it happens all the time. My point is that, upon reflection, it is not always easy to draw a nice clear line between “executive” and “legislature”.

Similarly, it is also often argued that administrative law is undemocratic, because law-making power gets delegated to administrative bodies that are unelected. This may be true. But the argument loses some of its bite when we consider that the body doing the delegating is an elected legislature, and that the bodies to whom it is delegated are themselves created by that elected legislature. As such, administrative law clearly has at least some connection to a democratic process. And in theory it is always open to that democratic legislature to reverse the process, either dissolving such administrative bodies or taking back the law-making powers it delegated. (Of course, the public choice theorist in me recognizes that it is rarely that simple in practice.)

Furthermore, consider this: If it was a mistake for the elected legislature to have created such administrative bodies or to have delegated law-making authority to them, then who is to blame for this evil? Clearly the elected legislature. Which perhaps ought to make us wonder why we should hold these elected legislatures in such reverence.

Clearly articulating what is bad about administrative law is not as easy as many libertarian types would have us believe. I would like to present two more illustrations of this point, drawn from claims in Hamburger’s book.

At page 50, Hamburger notes that “extralegal legislation [i.e. administrative law] did much to provoke the development of constitutional law”. This is a historical claim. The point he is getting at is that what he calls “constitutional law” — but what I would prefer to call “constitutionalism” in order to sidestep the thorny issue of what exactly counts as “law” — arose as a defensive reaction to executive encroachment (think here of old King John at Runnymede or George III enforcing his horrific three penny tea tax at the point of redcoat bayonets.)

Hamburger’s point here raises a problem for his own larger position: If constitutional law arose as a reaction to administrative law, then the latter predates the former. Administrative law certainly predates any particular constitution that Hamburger is talking about — at least given his narrow definition of “constitution” as a form of government resulting from consent/agreement of the people (see p. 44). And yet throughout his book he relies on constitutional legal thought to undercut administrative law. He expects us to take for granted that the US Constitution acts as some kind of trump wherever it runs up against a practice, while he hasn’t really even bothered to defend this position. He is therefore begging the question. You can’t argue for the primacy or normative authority of constitutional law over administrative law by simply assuming the primacy of constitutional law. This is especially the case where it is open for one to argue at the very least that (i) administrative law is in many cases expedient and useful, and (ii) as a kind of law-making authority it pre-existed constitutional law.

However, to my mind, there is a deeper flaw in Hamburger’s book, and in most books like it. Hamburger has a tendency to slip back and forth between constitutional law and common law as if they’re somehow synonymous. They are not (especially, again, given his narrow view of “constitution”). There is almost nothing in the US Constitution that an Englishman living in the Middle Ages (the heyday of the common law) would find intelligible.

As it stands, this would just be a criticism about his loose use of language. But it has deeper ramifications. Hamburger offers a potted history of administrative law and its relation to common law and the rise of  constitutional law that is very selective, to say the least. For one thing, it only really covers developments from the Tudors on. This is problematic, because if he were to go further back, for example if he were to read Pollock and Maitland on English law before Edward I, he would find that the common law itself is mostly a creature of administration: the common law system of courts, etc. was created by the executive to solve administrative/ governmental problems. And what was the exchequer court but an administrative body? Yet it was considered a common law court. Therefore, historically, common law is (or at least was) administrative law.

The very term “common” law derives from the fact that it was the law as applied in all the King’s courts across the land, in what was a blatant usurpation of the local authority of his barons. In that sense the introduction of the common law was possibly the most audacious and far-reaching encroachment of state power in the history of the English-speaking peoples.

One might also mention the history of the Court of Chancery. In certain kinds of cases where it was found that the common law could provide no remedy or would work palpable injustice, appeal could be had to the Lord Chancellor. Now the Chancellor was an administrator par excellence, a minister appointed by and serving at the pleasure of the King, and to whom the King had delegated authority to grant remedies not otherwise available — to in effect make law. Would Hamburger therefore wish to say that equity (the law administered in the Court of Chancery) was mere administrative law, or that for that reason it was not law at all? If so, then we would have to jettison such areas of law as trusts and wills, and such remedies as injunctions and specific performance, which originated in Chancery. The simple fact is,

In the beginning, all law was administrative law.

And perhaps it is still so to a greater degree than we care to imagine.

Finally, Hamburger’s focus on post-Tudor developments leads him to overplay the role of Parliament (and hence elected legislatures) in the creation of law. In the first formative period of the common law, “parliament” would largely have consisted of what we call the House of Lords, in which there was no popular representation or participation. Even a little later, when the commons were allowed some representation, Parliament was essentially an advisory body, not a legislative one. Does that mean that there was no such thing as law in England before the struggles of the 17th century? Or that there was no constitution? The claim would be absurd, but it follows from just about everything Hamburger is arguing in this book.

Consider the Peacock

I’ve been reading a book by Richard Joyce called The Evolution of Morality (Cambridge, MA: MIT Press, 2006). Now, I am far from a creationist (though I’m also far from a scientist), and in broad outlines I am a thorough believer in the theory of evolution and in some version of its mechanism of action, natural selection. Nevertheless, whenever I read a work in which the theory is applied to such complex human phenomena as our propensity to make moral judgments, I am usually left unsatisfied and sceptical.

I am left unsatisfied, because such explanations often seem beside the point: I’m never sure what purpose is served by an evolutionary explanation of how human morality arose. Is it somehow supposed to validate our moral judgments, by grounding them in our biology? If so, why is such validation necessary? Are we more apt to avoid theft if we are told that we are hardwired to find theft wrong? Or is it somehow supposed to debunk our moral judgments, by demonstrating that the experienced wrongness of theft is nothing more than a biological reaction that could have been otherwise if our evolution was just a little bit different, and that “theft” and “wrongness” are simply biological phenomena? Will this knowledge make me view my disapproval of theft as somehow contingent, parochial? In other words, I’m doubtful that an evolutionary “explanation” of morality would have much relevance for morality. It would simply be an entertainment for the curious, its entertainment value a function of aesthetic concerns such as the elegance, cleverness, and ontological economy of the explanation offered.

It must be said that Joyce’s book, to its credit, does a very good job of addressing (though not necessarily answering) the question of what purpose an evolutionary explanation of human morality is supposed to serve, or of what difference such an explanation would (or wouldn’t) make to morality itself, as practiced by humans. Indeed, this is probably the main strength of the book.

However, besides leaving me unsatisfied, evolutionary explanations of complex human phenomena also often leave me sceptical, because stories proffered to show how a certain faculty like morality arose almost always end up seeming just that — stories. Sometimes the stories are very clever, very elegant, very plausible, but for every such story on offer there is usually another writer with a different plausible story. With multiple just-so stories for sale, a reader can be excused for finding such stories dubious in general. And it seems the more complex the phenomenon being explained, the more alternative stories there are available to explain it.

Indeed, in some cases scepticism can result from explanations offered for quite simple phenomena. Take, for instance, the concept of sexual selection, as used to explain some of the more florid examples of seemingly maladaptive physical traits. Here is Joyce (p. 32) with a well-known example:

Consider the enormous and cumbersome affair that is the peacock’s tail. Its existence poses a prima facie threat to the theory of natural selection — so much so that Charles Darwin once admitted that the sight of a feather from a peacock’s tail made him ‘sick!’ Yet Darwin also largely solved the problem by realizing that the primary selective force involved in the development of the peacock’s tail is the peahen’s choosiness in picking a mate. If peahens prefer mates with big fan-shaped tails, then eventually peacocks will have big fan-shaped tails; if peahens prefer mates with triple-crested, spiraling, red, white, and blue tails, then (ceteris paribus) eventually peacocks will sport just such tails. Sexual selection is a process whereby the choosiness of mates or the competition among rivals can produce traits that would otherwise be detrimental to their bearer.

Now, at first sight nothing seems simpler than this explanation: peahens developed a sexual preference for males with large tails, and given this preference, peacocks with large tails were more likely to be chosen as reproductive partners, giving them a reproductive advantage over their smaller-tailed rivals. The story neatly answers a basic problem: why would an animal develop a trait that is so obviously an obstacle to its viability?

And yet, when we begin to inconveniently think too much about it, it doesn’t take long before the story starts to seem shaky. The problem to be solved by this story:

“Why do male peacocks have cumbersome tails that ought to make them less likely to survive long enough to reproduce?”

is not really solved at all, but rather is replaced by a different problem:

“Why do peahens have a preference for males with a seemingly maladaptive trait like cumbersome tails?”

Put another way, all we have done is shifted the focus from one maladaptive trait (massive tail plumage) to another (sexual preference for massive tail plumage). I fail to see that anything has been explained at all.

Let’s imagine a related but rival species to peafowl — related in the sense that they are physically similar in most relevant ways and (importantly) are eaten by the same predators, rival in the sense that they share the same ecological niche, relying on the same nesting places and food sources, etc.  Let us call this species “dandybirds”. Now, let us further imagine that dandyhens have developed a preference for dandycocks with small, light tails and fast running legs. Which species do you think is more likely to flourish in this ecosystem in the long run, peafowl or dandybirds?

We don’t even have to go so far as to imagine a different species; we can instead imagine a peafowl population with a subset of peahens who have a perverse sexual preference for peacocks with small, light tails and fast running legs. Which population subset is more likely to flourish?

And of course, we could also imagine an alternative kind of peafowl population in which females don’t get to choose mates at all, but are instead chased down and captured by peacocks for forced mating. This would necessarily favour strong and fast peacocks, who would be more likely to reproduce than their slower, fan-tailed brethren.

There are just too many competing possible roads natural selection could have gone down more plausibly.

Now I suppose the teller of the just-so sexual selection story could always come back with a reply to the effect that this is simply the road natural selection did in fact go down. Dandybirds never existed, nor did the alternative sorts of peafowl mentioned. Instead, there were in fact only peafowl whose females — through random mutation or whatever — prefer peacocks with extravagant tails. In other words, a highly improbable (but possible) state of affairs came about randomly. I suppose such an “explanation” is no better (or worse) than “explaining” a gambler’s run of good luck by simply recounting the series of lucky rolls he has shot.

The Spectacled Avenger's Reading List, 2014

In keeping with this blog’s traditional method of ushering in a new year, you will find below a list of books read by yours truly over the course of 2014. The final tally was 76 books, which is roughly in keeping with previous years’ totals.

In terms of content, as usual, it is extremely heavy on books written in the 18th century or earlier, perhaps somewhat more so this past year than in previous ones. I count only 20 books written in the 20th century or later, along with a smattering of 19th-century works.

Two notable things about this year's list are that there is more fiction than usual (Defoe, Dostoyevsky, Sterne, Smollett, and Swift), and that there is a large amount of English legal history. The latter is a predictable result of research I have been doing for a paper. Regarding Dostoyevsky, I will likely never read another Russian novel again, but I am proud of having managed to finish Crime and Punishment, which delivered precisely what its title promised, at least in terms of the reading experience.

I will take this opportunity to admit that The Spectacled Avenger has been more neglected that usual this past year. Without issuing an ironclad New Year’s resolution, it is my hope to do better in 2015.

Without more ado, here is the list (as in previous years, bolded items represent books I particularly enjoyed).

*    *    *    *    *

ADDISON, Joseph and Richard STEELE. The Spectator (Vol. V). Edinburgh: J. and J. Ruthven, 1809.

AURELIUS, Marcus. The Meditations of the Emperor Marcus Aurelius Antoninus. Francis Hutcheson and James Moor (trans.). Indianapolis: Liberty Fund, 2008.

BLACKSTONE, William. Commentaries on the Laws of England (Vol. II). Oxford: Clarendon Press, 1766 (facsimile, Chicago: University of Chicago Press, 1979).

BLACKSTONE, William. Commentaries on the Laws of England (Vol. III). Oxford: Clarendon Press, 1766 (facsimile, Chicago: University of Chicago Press, 1979).

BURKE, Edmund. Further Reflections on the Revolution in France. Daniel E. Ritchie (ed.). Indianapolis: Liberty Fund, 1992.

BURKE, Edmund. Select Works (Vol. IV: Miscellaneous Writings). Indianapolis: Liberty Fund, 1999.

CAENEGEM, R. C. van. The Birth of the English Common Law (2^nd Edition). Cambridge: Cambridge University Press, 1988.

CHAUCER, Geoffrey. Canterbury Tales. A. C. Cawley (ed.). New York: Everyman's Library, 1992.

CLARE, John. The Shepherd’s Calendar. Eric Robinson (ed.). Oxford: Oxford University Press, 2014.

CLARENDON, Edward Hyde, Earl of. The History of the Rebellion and Civil Wars in England (Volume III, Part I). Oxford: Clarendon Press, 1816.

COHEN, Warren I. The Cambridge History of American Foreign Relations, Vol. IV: America in the Age of Soviet Power, 1945-1991. Cambridge: Cambridge University Press, 1993.

COKE, Sir Edward. The Selected Writings and Speeches of Sir Edward Coke (Vol. II). Steve Sheppard (ed.). Indianapolis: Liberty Fund, 2003.

DEFOE, Daniel. The Fortunes and Misfortunes of the Famous Moll Flanders. London: W. Chetwood et al., 1722 (facsimile, Menston, UK: Scolar Press, 1970).

DIONYSIUS OF HALICARNASSUS. Roman Antiquities (Vol. V). Earnest Cary (trans.). Cambridge, MA: Harvard University Press, 2005.

DOSTOYEVSKY, Fyodor. Crime and Punishment. David McDuff (trans.). London: Penguin Books, 2003.

DROLET, Jean-François. American Neoconservatism: The Politics and Culture of a Reactionary Idealism. New York: Columbia University Press, 2011.

FELLTHAM, Owen. Resolves Divine, Moral, and Political. London: Pickering, 1840.

FINKELSTEIN, Norman G. The Holocaust Industry: Reflections on the Exploitation of Jewish Suffering (2^nd edition). London: Verso, 2003.

FRANKLIN, Benjamin. Silence Dogood, The Busy-Body, and Early Writings. New York: Library of America, 2002.

FRASER, Antonia. Cromwell: Our Chief of Men. London: Weidenfeld and Nicolson, 1973.

GODWIN, William. An Enquiry Concerning Political Justice. Oxford: Oxford University Press, 2013.

GRANT, Michael. The Collapse and Recovery of the Roman Empire. London: Routledge, 1999.

GROTIUS, Hugo. De Jure Belli ac Pacis Libri Tres (Vol. 2: English Translation). Francis W. Kelsey (trans.). Oxford: Clarendon Press, 1925.

HALE, Sir Matthew. The History of the Common Law of England. Charles M. Gray (ed.). Chicago: University of Chicago Press, 1971.

HAMBURGER, Philip. Is Administrative Law Unlawful? Chicago: University of Chicago Press, 2014.

HAYEK, Friedrich A. Law, Legislation and Liberty (Vol. 1: Rules and Order). Chicago: University of Chicago Press, 1973.

HAYEK, Friedrich A. Law, Legislation and Liberty (Vol. 2: The Mirage of Social Justice). Chicago: University of Chicago Press, 1976.

HAYEK, Friedrich A. Law, Legislation and Liberty (Vol. 3: The Political Order of a Free People). Chicago: University of Chicago Press, 1979.

HOBBES, Thomas. Writings on Common Law and Hereditary Right. Alan Cromartie and Quentin Skinner (eds.). Oxford: Clarendon Press, 2005.

HOWARD, A. E. Dick. Magna Carta: Text and Commentary (revised edition). Charlottesville, VA: University Press of Virginia, 1998.

HUME, David. Essays Moral, Political, and Literary. Eugene F. Miller (ed.). Indianapolis: Liberty Classics, 1987.

HUTCHESON, Francis. Thoughts on Laughter, and Observations on the Fable of the Bees. Glasgow: Robert and Andrew Foulis, 1758 (facsimile, Bristol, UK: Thoemmes, 1989).

HUTCHESON, Francis. An Inquiry into the Original of Our Ideas of Beauty and Virtue. Wolfgang Leidhold (ed.). Indianapolis: Liberty Fund, 2004.

JEFFERSON, Thomas. A Summary View of the Rights of British America. Williamsburg: Clementina Rind, 1774.

JEFFERSON, Thomas. Writings. New York: Library of America, 1984.

KAMES, Henry Home, Lord. Historical Law-Tracts (2^nd edition). Edinburgh: A Kincaid and J. Bell, 1761.

KAMES, Henry Home, Lord. Principles of Equity. Michael Lobban (ed.). Indianapolis: Liberty Fund, 2014.

LAWSON, F. H. and Bernard RUDDEN. The Law of Property (2^nd edition). Oxford: Clarendon Press, 1982.

LE BILLON, Philippe. Wars of Plunder: Conflicts, Profits and the Politics of Resources. New York: Columbia University Press, 2012.

LEMAY, J. A. Leo. The Life of Benjamin Franklin, Volume 1: Journalist, 1706-1730. Philadelphia: University of Pennsylvania Press, 2006.

LOCKE, John. Epistola de Tolerantia: A Letter on Toleration. J. W. Gough (trans.). Oxford: Clarendon Press, 1968.

MAITLAND, F. W. The Forms of Action at Common Law: A Course of Lectures. Cambridge: Cambridge University Press, 1969.

MARSHALL, Alfred. Principles of Economics (8^th edition). London: Macmillan, 1959.

MARSHALL, John. The Life of George Washington: Special Edition for Schools. Indianapolis: Liberty Fund, 2000.

MENDRAS, Marie. Russian Politics: The Paradox of a Weak State. New York: Columbia University Press, 2012.

NIETZSCHE, Friedrich. Dawn: Thoughts on the Presumptions of Morality (Complete Works, Vol. 5). Brittain Smith (trans.). Stanford, CA: Stanford University Press, 2011.

NIETZSCHE, Friedrich. Human, All Too Human, I (Complete Works, Vol. 3). Gary Handwerk (trans.). Stanford, CA: Stanford University Press, 1995.

OAKESHOTT, Michael. Morality and Politics in Modern Europe: The Harvard Lectures. New Haven, CT: Yale University Press, 1993.

PARKIN, Charles. The Moral Basis of Burke's Political Thought. Cambridge: Cambridge University Press, 1956.

PIKETTY, Thomas. Capitalism in the Twenty-First Century. Arthur Goldhammer (trans.). Cambridge, MA: Harvard University Press, 2014.

PLINY the Younger. The Letters of Pliny the Consul: With Occasional Remarks (Vol. I). William Melmoth (trans.). London: J. Dodsley, 1777.

PLINY the Younger. The Letters of Pliny the Consul: With Occasional Remarks (Vol. II). William Melmoth (trans.). London: J. Dodsley, 1777.

POLLOCK, Sir Frederick and Frederic William MAITLAND. The History of English Law before the Time of Edward I (Vol. II). Cambridge: Cambridge University Press, 1898.

PUFENDORF, Samuel. An Introduction to the History of the Principal Kingdoms and States of Europe. Jodocus Crull (trans.). Indianapolis: Liberty Fund, 2013.

RAMSAY, David. The History of the American Revolution (Vol. I). Lester H. Cohen (ed.). Indianapolis: Liberty Classics, 1990.

RAMSAY, David. The History of the American Revolution (Vol. II). Lester H. Cohen (ed.). Indianapolis: Liberty Classics, 1990.

SENECA, Lucius Annaeus. Moral Essays (Vol. I). John W. Basore (trans.). Cambridge, MA: Harvard University Press, 2003.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. Characteristicks of Men, Manners, Opinions, Times (Vol. I). Indianapolis: Liberty Fund, 2001.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. Characteristicks of Men, Manners, Opinions, Times (Vol. II). Indianapolis: Liberty Fund, 2001.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. Characteristicks of Men, Manners, Opinions, Times (Vol. III). Indianapolis: Liberty Fund, 2001.

SHAKESPEARE, William. Romeo and Juliet. Brian Gibbons (ed.). Walton-on-Thames, UK: Thomas Nelson and Sons, 1997.

SIMPSON, A. W. B. An Introduction to the History of the Land Law. Oxford: Oxford University Press, 1961.

SMITH, Adam. Lectures on Jurisprudence. R. L. Meek, D. D. Raphael, and P. G. Stein (eds.). Oxford: Clarendon Press, 1978.

SMITH, Richard D. Can't You Hear Me Callin’: The Life and Times of Bill Monroe, Father of Bluegrass. Cambridge, MA: Da Capo Press, 2001.

SMOLLETT, Tobias. The Expedition of Humphry Clinker. Lewis M. Knapp (ed.). Oxford: Oxford University Press, 2009.

STERNE, Laurence. A Sentimental Journey through France and Italy. London: Oddy and Co., 1806.

SWIFT, Jonathan. Gulliver’s Travels. Oxford: Oxford University Press, 1999.

THOREAU, Henry David. A Yankee in Canada, with Anti-Slavery and Reform Papers. Boston: Ticknor and Fields, 1866.

TUFTE, Edward R. The Visual Display of Quantitative Information (2^nd edition). Cheshire, CT: Graphics Press, 2011.

TUFTE, Edward R. Visual Explanations: Images and Quantities, Evidence and Narrative. Cheshire, CT: Graphics Press, 1997.

TULLOCK, Gordon. Law and Economics (Selected Works, Vol. 9). Indianapolis: Liberty Fund, 2005.

UNITED STATES CONGRESS. Acts Passed at a Congress of the United States of America. New York: Francis Childs and John Swaine, 1789 (facsimile, Kansas City, MO: Andrews McMeel, 2013).

WADDAMS, S. M. et al. Cases and Materials on Contracts (3rd edition). Toronto: Emond Montgomery, 2005.

WALTON, Izaak. The Lives of John Donne, Sir Henry Wotton, Richard Hooker, George Herbert, and Robert Sanderson. London: Oxford University Press, 1962.

WHITE, Morton. Philosophy, The Federalist, and the Constitution. New York: Oxford University Press, 1987.

WIGGINTON, Eliot. The Foxfire Book. New York: Anchor Books, 1972.

The Blood Cotton Affair

Down on the ol' plantation

Nearly two months ago, I listened to a CBC radio program as I cooked dinner. This program had on one of those “humorous” little items it regularly airs, to give the listener a brief chuckle and a sense of superiority over someone who has said or done something silly. In this case, it was a quote from an anonymous book review in the September 6, 2014 issue of The Economist magazine, pp. 86-87. It was cleverly titled "Blood Cotton". The book it reviewed was The Half Has Never Been Told: Slavery and American Capitalism, by Edward Baptist.

The quote, criticizing the author of a book on American slavery, was this: 

“Mr. Baptist has not written an objective history of slavery. Almost all the blacks in his book are victims, almost all the whites villains.”

Oh boy.

That was it. The radio host gave no commentary on the line. After all, it speaks for itself, no? The listener is supposed to be boggled at the appalling obtuseness of the reviewer. Of course the blacks were victims of slavery, and of course the whites were its villains! The reviewer has somehow managed to miss the moral point of the story of US slavery. A snicker and a shake of the listener’s head is supposed to ensue. The overall effect is presumably amplified by the leftish CBC audience’s hatred of the stuffy old Economist magazine, a reviled organ written by and for smartypants ruling-class types. “O brother, can a journalist truly be that stupid?” asks the listener. (Don’t answer.)

The whole effect is that pleasurable mixture of superiority and righteous indignation on behalf of unknown others that is the peculiar enjoyment of politically-correct middle class white folk, who are ever ready to feel much – and do little – on behalf of unknown others. It is the easy and undemanding new morality of the affluent, along with yoga and kale.

Now, I happen to be an Economist subscriber (just the sort of educated listener the CBC is actively trying to get rid of in favour of knuckle-dragging hockey fans). As such, I had actually read the review in question. I therefore knew that the CBC had done a hatchet job on it.

Unfortunately, the story was not only picked up by the CBC. The egregious quote had been making the rounds in other media sources too. The author of the original book himself has been getting quite a bit of mileage out of the review, appearing in several media outlets taking The Economist to task, conveniently deflecting attention away from the review’s core criticism, which if true, is that Baptist’s book — methodologically speaking — is simply shoddy history. This is the main point the reviewer was trying to make, and it is a criticism that hasn’t really been refuted, amidst all the moralistic cheap shots.

I don’t frankly know which is more saddening to me: the misguided moral outrage, or The Economist’s abject, groveling retraction of a review that to my mind raised valid questions of scholarship. Although the review was pulled from their main website, it can still be read here.

Now here is The Economist’s shameful retraction:

“In our review last week of ‘The Half Has Never Been Told: Slavery and the Making of American Capitalism’ by Edward Baptist, we said: ‘Mr Baptist has not written an objective history of slavery. Almost all the blacks in his book are victims, almost all the whites villains.’ There has been widespread criticism of this, and rightly so. Slavery was an evil system, in which the great majority of victims were blacks, and the great majority of whites were willing participants and beneficiaries. We regret having published this and apologise for having done so.”

I was left confused as to what, precisely, they were apologizing for. The reviewer never denied that slavery was an evil system.  Nor did he deny that the majority of its victims were blacks. (To claim, as the retraction does, that the great majority of whites were willing participants and beneficiaries is debatable, but I'll leave that aside.) The reviewer's implied criticism was that there was little attempt made by the author to present any other than the standard caricatured narrative of slavery as a moral evil. Yes, slavery was evil. Tell me something I don't know. But it was also a complicated evil, and the author fails to bring out that complexity. That was what the reviewer's sentence was awkwardly trying to point out. I was very disappointed that The Economist threw its reviewer under the bus in the name of political correctness. I personally found the review to be interesting and thoughtful, and so I’d like to do it a little justice. I am glad for the reviewer's sake that at least The Economist does not name their contributors, as it would be a shame for his or her career to have been ruined by this needless debacle.

Aside from a lack of nuance, the reviewer has two main criticisms of Baptist’s book. I must make it clear that I have not personally read the book, and so I am not well-placed to verify whether these criticisms are valid or not. But as I said, I haven’t really seen a plausible refutation of them amid all the fuss, so I shall assume them valid for argument’s sake, as one must do with a review of any book one hasn't read yet.

The first criticism is that the book is mostly anecdotal and therefore lacking in objectivity. In this connection, here are the reviewer’s words:

“Mr Baptist cites the testimony of a few slaves to support his view that these rises in productivity were achieved by pickers being driven to work ever harder by a system of ‘calibrated pain’. The complication here was noted by Hugh Thomas in 1997 in his definitive history, ‘The Slave Trade’; an historian cannot know whether these few spokesmen adequately speak for all.”

Methodologically, a work of sound scholarship in history, as in other social sciences, ought not to rely too heavily on the self-reporting of a small sample of subjects. Anecdotes may suffice for an autobiography or memoir, but not for a work of history. That is not to say that anecdotes have no place in such works, to function as illustrations of a broader point. But that broader point should not – indeed cannot – be demonstrated by anecdotes. Now, if Baptist’s book is largely anecdotal, and if it presents itself as a history, and in any way a scholarly one, then this is a problem. I leave it to readers of the book to determine whether this is the case. However, it is what led the reviewer to question the book’s rigour, and it is also the point behind his criticism that the chosen heroes and villains may be as much of the author’s creation as they are of history’s. How many (white) heroes and (black) villains get left out in the cherry picking of sources? We know there must have been some, if only as a matter of the law of large numbers.

The second criticism comes in the form of a very interesting historical puzzle raised by the reviewer, which is this: After the first decade of the 19th century, importation of slaves from Africa to the US was abolished. Once the external source of slaves had dried up, slave owners were forced to rely on the domestic “stock”. Although slaves were always a valuable commodity, they became more so as time went on. How is this fact to be squared with Baptist’s thesis that the productivity of slave labour was increasing over the same period, and that this productivity increase was largely driven by the increasing meanness of slave owners? If slaves were becoming more valuable (and productive), how much economic sense does it make for owners to risk damaging their property by beating them? How much can productivity be increased by starving one’s producers? As the reviewer notes, “Slave owners surely had a vested interest in keeping their ‘hands’ ever fitter and stronger to pick more cotton. Some of the rise in productivity could have come from better treatment.” Note that he said “could have”. It is a puzzle that at least deserves to be honestly examined. And since it is also an economic puzzle, it is entirely appropriate that it be aired in a magazine called The Economist.

The reviewer’s alternative hypothesis regarding slave productivity doesn’t sit comfortably with the knowledge that US slavery was an evil institution. And I believe it was inherently evil, in that even were we to make the laughable assumption that all slave owners fed and pampered their slaves luxuriously, slavery would still be a moral stain. Thus, to consider the reviewer’s conjecture and explore the question she poses is not to justify slavery. She could be right, and slavery would still be wrong. So why the reluctance to consider and explore? This is one of the dangers of unthinking political correctness. If a supposedly scholarly book cannot be honestly reviewed according to the accepted standards of rigorous scholarship merely because it is about a certain topic, then woe to scholarship, and woe to us all.

I will end this post with the following point: In most sources, including the CBC, the controversial quote is characterized as ending the review in which it appears. This is not entirely true. As a matter of fact, the first part of the sentence is cut out, and one more sentence follows it, which if reprinted might do much to soften the impact of the whole. Even The Economist presented the butchered version of the quote in its own retraction of the piece. To set the record straight, here is the actual ending of the review (I have bolded parts that were removed from quoted versions):

“Unlike Mr Thomas, Mr. Baptist has not written an objective history of slavery. Almost all the blacks in his book are victims, almost all the whites villains. This is not history; it is advocacy.”

ADDENDUM:

US slavery victimized many, black and white. As I have read more and more on the topic, I have come to believe that this was one of its greatest evils, the fact that it could damage or corrupt all who came into contact with it. White “victims” can be found who bravely opposed slavery and suffered dearly for their beliefs, as well as many white villains who kept, traded, and drove slaves. It seems both of these, along with slavery’s innumerable black victims, are easier to write about than the black “villains” who were implicated in it — a much less palatable topic of study. But they existed. We forget that, at the source of supply, for a long time it was blacks in Africa who sold their brethren to white slavers. Many overseers were themselves black, and although I can't say whether on the whole they were any less or more cruel than the white overseers, I suspect they were probably a mixed bag. And I leave it to the reader to consider such an interesting figure as Anthony Johnson of Virginia.