justice

Some Reflections on Liberal Democracy, Political Meritocracy, and Critical Rationalism

Federico Sosa Valle Politics , , , , , , , , ,

We live in times in which the liberal democracy is challenged by a sort of political meritocracy according to which a performance legitimacy — i.e., the utility that government management brings to the population – would be more important than the legitimacy of origin, based on the consent of the sovereign people. Thus, economic growth and its beneficial consequences for the governed are presented as substitutes for liberal values, which often also encounters difficulties in its governance. The next step would be to replace liberal democracy with a single-party meritocracy, legitimized in its ability to efficiently provide public goods to its population. In this context, is Contractualist Rationalism still a sufficient foundation for liberal democracy? We will seek to respond to this query with the answer to another question, related to the previous one: What position would the so-called anti-Contractualists or anti-Rationalist assume in the current context?

Both for David Hume and later for Edmund Burke, political power lacks legitimacy of origin. They stated that every government is born either by conquest or by usurpation, since for a social contract to even be conceived, it must be preceded by a system of legal norms in which to fit. Therefore, if there is a political obligation on the part of the governed, it has its source in the legitimacy of exercise that, day after day, the rulers gain. However, such source of legitimacy does not come exclusively from the force with which governments impose compliance with their laws, but in the common interest of the rulers and the ruled to maintain the validity of certain norms of coexistence or justice, whose discovery is born of the practice of interactions between different individuals, its fulfillment generates a long-term benefit for society and its application begets concern for the aforementioned common interest among all members of the social and political body.

Norms and human nature

David Hume distinguished, for this, between natural and artificial virtues, belonging those norms of justice to this last category, since the man in himself would not have a natural propensity to comply with them, but they depend on a critical reasoning capable of being able to see the convenience of the universalization of such standards. For this reason, the Scottish philosopher proposed a model of an agent who behaved in accordance with a principle of limited generosity: he was not exclusively selfish, but rather had an empathetic capacity capable of putting himself in the place of his fellow man. In turn, he was not entirely rational, but that same empathy moved him to act according to his passions, such as to prefer his own kind to strangers. Continuous interactions with other human beings following this behavioral model of limited generosity allowed the social fabric to be endowed with certain structuring regularities, by virtue of the habit born from the repetition of actions inspired by said principle of limited generosity -and the consequent expectations regarding the behavior of own and others arising from the aforementioned habits of conduct.

This plexus of habits and expectations allows agents to make decisions based on a given structure of human interactions that can be identified through a standard of expected behavior, distinguishing what should be from what is not expected to be. Such rules of conduct are called by David Hume as “of justice” and their compliance habit configures “artificial virtues,” since on certain occasions they may conflict with the natural virtues concerning the principles of limited generosity that make the agent prefer his own kind to the others.

In this way, David Hume stated that human interactions form a social structure that is built upon notions of justice that he identified as those of stability in possession, its peaceful transmission and the fulfillment of the promises. These consist of social institutions that arise spontaneously from human interaction and that, because on certain occasions they may conflict with private interests, are not universally accepted spontaneously, but rather, on the contrary, need the support of force for their fulfillment. It is by providing such enforced compliance with the norms of justice that governments gain their legitimacy of exercise.

Although, as we said, the observance of these practices and institutions constitutes a particular interest shared by all members of society, since they all share the natural virtues of looking after the interests of their own group and this is what make them peacefully prosper. Nevertheless, it would be useful to illustrate those instances in which the passions that make up the natural virtues conflict with the rules that maintain such a peaceful order of coexistence and exchange: such is the case, for example, of compliance with the promises.

If a person hires another for the manufacture of a certain work that will take a certain time to complete, pays him an advance on account of the payment of the total price at the end of the work, both will be faced with possible conflicts of interest when fulfilling their respective promises. Once the contractor receives the advance of the price, he will be faced with the dilemma of complying with the execution of the work and bringing it to completion or assuming the opportunistic behavior of allocating such a sum of money for another more desired interest: to buy toys to their children, for example. Suppose that the contractor complies with his commitment and delivers the work to his client in a timely manner. In this case, the latter will be faced with the dilemma of honoring his commitment and paying the balance of the price, receiving the work, or allocating that money to a more urgent and priority need at the moment, such as helping his parents to raise a debt. If social organization were structured exclusively around natural virtues, Hume reasoned, the fulfillment of promises would be highly unlikely. Thus, artificial virtues are born, such as justice.

The role of government, in Hume’s view, is to give mandatory force to the spontaneous norms of justice -such as the aforementioned stability in possession, the peaceful transmission of said possession and the fulfillment of promises- through the establishment of sanctions and compensations that discourage non-compliance. Thus, if the contractor in our example chooses to allocate the money from the advance of the work for which he had been hired to buy toys for his children – since, naturally, the happiness of his children is above the happiness of his client -, then he should pay his counterpart a compensation for damages that will far exceed the value of the said toys. In this way, the happiness of the children of the contractor will be better guarded if he fulfills his commitments. Correlatively, if at the end of the work the contractor hands it over to his client and the latter refuses to pay the balance of the price, given that he prefers to allocate the said amount of money to pay a debt from his parents, then he will have to face a compensation that probably would exceed the value of the debts, so the debtor in this case will have a strong incentive to fulfill his part of the contract.

However, there are cases in which the breach of a promise is still advantageous even when opportunistic conduct is threatened with the payment of its compensation. In those cases, the need to be met is so urgent that its value exceeds the standard set by the positive law for breach of contract. These are the cases in which the contractor in our example no longer must buy toys, but rather food or medicine for his children, or in which the parents of the buyer of the work will have to put their house up for auction if their son does not help them in due time. In both cases, what we have is a general and abstract rule: in the case of a breach of contract, the debtor owes the payment of principal and an interest rate. On certain occasions, it will be convenient for the debtor to make the payment, on others, to face the costs of the breach.

Every system of abstract norms is articulated around standards of conduct in accordance to which the agents make decisions that will have to be rational from an ecological point of view. For example: in American law system of torts, the Rule of Hand (in honor of Judge Learned Hand) establishes that a person, in order to avert a certain risk, cannot be asked to incur in costs greater than the value of the said risk (that is, the value of the protected asset multiplied by the probability that the loss will occur.) Thus, if to avoid losing an asset with a value of $1,000 and whose probability of the loss occurring is 1%, it is unjustifiable because it is unreasonable to require its guardian to incur costs greater than $10. Likewise, in this case, personal utility and social utility coincide, since higher expenditures would mean a decrease in aggregate wealth. Correlatively, in the legal world linked to the European Continental tradition, heir to Roman law, there are expected standards of conduct such as those of a good businessman and a good family man, which establish the upper and lower limits of the duty of care.

In all cases, the person who makes the final decision about whether or not to carry out a certain action and face the consequences, natural and legal, is the individual. Empathy towards someone who is considered as one’s own works as a natural limiting factor for action, as well as rules of courtesy and moral guidelines. They all act as empirical institutions. When these are insufficient for the purpose of maintaining a stable structure of peaceful exchanges, positive legal norms become relevant, establishing mechanisms of patrimonial compensation and repressive sanctions that have a dissuasive purpose with respect to a certain range of actions. However, a liberal legal system will never prevent the commission of certain actions, but will limit itself to discouraging them and, if carried out, to compensate them. In this way, each individual will have to decide their course of action according to their particular circumstances of time and place, refraining in some cases from carrying out certain actions and, in others, carrying them out knowing that their omission is more disadvantageous than the compensation or threatened sanction.

Suppose a man wants to avenge the outrage and murder perpetrated against a daughter of his, who went unpunished due to difficulties in the evidence. The state cannot apply repressive sanctions against the suspect of the crime because he has procedural guarantees that are inviolable. However, nothing prevents the offended party from choosing to take revenge at the price of being criminally sanctioned. We can assume that the suspect of the crime achieves an interdiction against whoever is chasing him, prohibiting him from approaching him within a certain radius of meters. However, the vigilante will have to prefer to violate such a prohibition and kill the person who, according to his particular conviction, is the author of the crime against his daughter. In this last case, there is no room for doubt: the avenger is the author of the homicide against the suspect of the previous crime. The avenger ends up sentenced to serve some years in prison, plus the payment of a fine for having violated the interdiction and the payment of compensation to the relatives of his victim. Well then, the criminal being convinced of the justice of his decision, that conviction will seem like a convenient price to pay in order to avenge the outrage followed by the murder against his daughter.

Such a case does not represent a failure of the legal system as an incentive structure for decision-making. On the contrary, it is a typical case of how such a system works. Compensation and repressive sanctions are prices that structure a certain ecological rationality, since under a certain matrix of compensation and sanctions one decision will be rational, while it will not be under another. If, for example, simple homicide is punished with a sentence of deprivation of liberty from eight to fifteen years, which can be extended to twenty-five years for cases of aggravated homicide, then certain actions will be irrational and others will remain reasonable. It is unreasonable to risk receiving such a penalty in the face of a verbal insult and, as we have already seen, there are other circumstances in which an individual is willing to assume not only the risk but also the certainty of being punished.

As a result of this system of incentives represented by the norms of justice, the final distribution of resources will correspond to a greater social utility, even in cases of violation of the aforementioned norms of justice, since no one will be forced to sacrifice resources inefficiently, above its opportunity cost. In this way, we see how David Hume offers us a sort of pre-utilitarian foundation for the norms of justice. However, this utilitarian-like notion also makes it possible to comply with an ethical requirement: for the purposes of complying with the rules of justice, no one is taken as a mere means, since compliance with them must provide some type of utility for each subject and, in otherwise, he is free to break the law and voluntarily face the consequences of such non-compliance, which he judges more advantageous than obeying the law itself.

The antagonism of interests between rulers and ruled

However, although a legal-political system understood in this way preserves its morality – since it encourages each individual to act contributing to the general welfare without losing sight of the fact that each individual is an end in himself -, its raison d’etre is not in the immediate interest of each agent in general, but in the immediate interest of a particular agent, who has interests diametrically opposed to the generality of the rest of the agents: the ruler. This does not pursue the protection of the general interest in the long term by enjoying a special moral predisposition, but by the particular interest of increasing its tax collection by increasing general wealth. The ruler who has a long-run horizon does not find it convenient to consume capital, but rather to increase it. Consequently, the government -being understood as the state– is directly interested in enforcing the rules of justice, although this often implies contradicting the direct and short-term interests of the governed.

Of course, David Hume also admits that, under exceptional circumstances, it would also be convenient in the long-run to temporarily suspend the rules of justice. This would be the case, for example, of a foreign exchange or bank run, in which, respectively, the foreign exchange market is suspended or the return of deposits is rescheduled. Both a devaluation of the currency and a rescheduling of bank deposits mean a disappointment to the legitimate expectations of holders of local currency or depositors, but a bankruptcy of the currency board, the national treasury or the banking system would cause greater damage -for both the ruler and the ruled.

But, removing those exceptional cases, the general rule is that the interests of the government are the opposite complement of the interests of the governed. While the former maximizes the utility of its resources by promoting the norms of justice, the latter do so by assuming opportunistic behavior – it is worth remembering here the well-known phrase by John Maynard Keynes, insofar as “in the long run, all we are dead”. However, the long term arrives and the societies that have a high level of enforcement of the rules of justice experience higher capitalization indices than the societies do not. It remains, of course, to see who appropriates such a surplus, if everything belongs to the ruler, or if the ruled can capture some of the surplus wealth generated by the effective enforcement of the rules of justice.

In this aspect, the classic forms of government are of particular incidence: a monarchy will have the advantage of having a greater incentive to enforce the rules of justice, which in the long run increase and deepen the structure of capital and, consequently, the tax collection. At the other pole, direct democracies would tend to find numerous exceptions to the rules of justice, rendering them completely ineffective. A mixed form of government, such as a constitutional monarchy in which the king is the head of state and the leader of parliament the head of government, would balance the interests of the rulers and the ruled. Those who are interested in increasing tax collection and those who seek to reduce it. The best way to reconcile both interests would be to encourage the formation of capital through the reassurance of the rules of justice: stability in possession, the peaceful transmission of it and the fulfillment of promises. In this way, governments legitimize themselves through the exercise of power aimed at ensuring compliance with a spontaneous regulatory system, which works at the same time as a system of incentives. In this line of argument, we can find the previously named Edmund Burke and Benjamin Constant.

Not in vain are the national states the natural heirs of the absolutist monarchies. The state is an institution -or a fiction, as Quentin Skinner points out- with a vocation for permanence and perpetuity. For the state, there is no short-term calculation, although it does find -in return- opportunistic behavior by officials and magistrates. When a simple individual acts in a way contrary to the law, he assumes the risk of being discovered by the state, which watches over the long-term interest. However, when this same individual manages state assets, his willful conduct has more devices to go unpunished. Therefore, we find in all systems a special responsibility of state administrators and other officials. But, above all things, we find ourselves with a system of checks and balances, of officialdom against opposition based not on virtue, but most of the time on the desire and competition to seize power and displace under any pretext the competitors. Modern liberal democracy means not only an abstract legal system for the governed, but also a set of abstract rules and anonymous procedures that encourage competition between different aspirants to political power.

The problem of the legitimacy of power

David Hume’s empiricism allows us to conceive how the legitimacy of the government does not come from its conditions of origin but from the exercise of power for the profit of the rulers and of the ruled. Furthermore, the norms of justice are regarded as desirable or good because compliance with them increases wealth and guarantees an equitable distribution of the said income between the rulers and the ruled. However, there is no a priori content of such norms of justice, but it emerges from the nature of things and only after a critical study of such circumstances can we infer the enunciation of the abstract norms and patterns that compose it. Furthermore, the abstract normative system that precedes governments and legitimizes them through their exercise is also made up of empirical norms that are not enunciated or are impossible to enunciate -as Friedrich Hayek noted in his work “Law, Legislation and Liberty“. It is worth saying that the spontaneous normative order that we call under the category of “norms of justice” does not depend on a positive enunciation but on its observance in the facts. It is through the positivization of certain principles of justice that governments, lacking in themselves any legitimacy of origin, acquire legitimacy of exercise.

Denying that every government has legitimacy of origin implies denying that there is a moral obligation to obey positive law whatever its content. Positive law is accompanied by a moral obligation to be obeyed when its purpose is to give binding force to spontaneous norms of justice, which contribute to the general well-being of the members of society. However, this does not mean that each individual has the competence to decide for himself if a positive legal norm has moral legitimacy to be followed, but rather that this depends on a critical judgment that is made taking into account not only the particular interest of a given subject, but the general interest of the whole society. To be valid, the particular judgment of each individual regarding the legitimacy of a positive norm must meet a necessary but not sufficient requirement of impartiality -and, thus, universality.

At this point, then, it is appropriate to ask how the rulers can identify those norms of justice from others that have only the appearance of being so but actually only respond to a particular interest. It is in this instance that the characteristic of spontaneous, tacit, or express compliance with the norms that make up a spontaneous order takes on special importance. This is because, if there is a given order, in which individuals interact, form expectations around the actions and decisions of their peers and coordinate individual plans among themselves, the observed empirical norms at least fulfill the task of maintaining stable, albeit in a precarious and provisional way, the said order. Furthermore, our own personal constitution, as subjects who recognize themselves as identical to themselves over time, depends largely on a stable order of events from our environment. As Friedrich Hayek explained at the time, what we call spontaneous order can also be characterized as the structure of reality in its aspect concerning human interactions, both instantaneous and sustained over time.

In conclusion, the line of the so-called anti-Contractualists or Empiricist could in no way be affiliated with the current critique of liberal democracy by surrogate candidates, such as a single-party meritocracy, which is efficient in promoting the economic growth for the population, at the cost of their political rights and the subjugation of certain human rights, such as freedom of expression or the right of assembly. On the contrary, the way in which governments legitimize themselves, regardless of the legitimacy of their origin, is to give mandatory force to a set of norms and values that concern fundamental or natural rights and political freedoms.

Transaction Costs are Injustice

Kevin Kallmes Books, Economics, History, Law, Liberty, Philosophy, Politics , , , , , , ,

Every Law Professor: ‘what is justice?’

In law school, I found that the central goal of legal academics and practitioners was to construct systems of thought, regulation, and courts providing justice. In that endeavor, my peers and professors constantly asked, “what is justice?”

I think well intentioned lawyers would agree, the law should provide access to justice via a system that is generally agreeable to those subjected to it, and that matches in rules what the general public aligns on in spirit. However, beyond these generalities, I find the conversation of ‘what is justice’ to be too abstract to be useful. However, that does not mean we should give up on it, we just need to change approaches, and instead ask ‘what is injustice?’

The Via Negativa

The basis for this is that it is easier to agree on what is unjust than on what is just: injustice in the form of concrete, tangible wrongdoing can be protested to, and people from diverse viewpoints can find agreement in what they mutually despise. Through the via negativa, then, we can fill in the negative space around justice, and by recognizing what it is NOT, we can start to give it form.

I know exactly where I would start, since I spend way too much time around lawyers, and I have noticed that they are open to any discussion of how lawyers can bring justice, but get very prickly if you suggest that the cost in time, money, and lost control by delegating justice to lawyers is in any way problematic. Let’s just say, lawyers don’t like being reminded that they are rent seekers in the process of achieving justice. So, my bold assertion is:

Transaction Costs are Injustice

Let me unpack this. What I mean by this is that, whatever a just outcome may be, it is unjust to delay this outcome when speed is possible, it is unjust to have complexity and opacity when simplicity is possible, and it is unjust to demand control when voluntarism and mutuality is possible. In effect, it is unjust to make the process of finding justice costly.

The Appeal Labyrinth: The Town of Castle Rock v. Gonzales

This issue actually came up to me in a conversation about the heartbreaking case of The Town of Castle Rock v. Gonzales. In June 1999, Jessica Lenahan-Gonzales was a resident of Castle Rock whose estranged husband kidnapped her children from her house, and when she called the police and asked them to enforce an active restraining order against him (he had been stalking her and her children). They did not react quickly, and 12 hours later, her children were found murdered in her estranged husband’s car after he engaged in a deadly shootout with the police.

Now, there is no good outcome from such a situation, especially for Jessica. However, one route for her was to sue the police department under, of all things, under a law originally passed to fight the KKK. In her lawsuit, she claimed the federal government had an interest in enforcement of the restraining order and alleged that the police department had “an official policy or custom of failing to respond properly to complaints of restraining order violations.”

Jessica’s case was initially dismissed by the District Court, but she appealed and, in 2002, it was reversed by the Tenth Circuit, which said she could recover under procedural due process but denied that she had a right to recover via substantive due process (for Scalia’s take on substantive due process in general, see this amazing video). However, the Circuit court also noted that while the town was liable, the officers were covered by qualified immunity.

The town appealed and actually was granted cert by the Supreme Court. SCOTUS reversed the Circuit Court in a 7-2 decision; Scalia wrote for the majority that officers were not required by law to immediately enforce restraining orders, that even if they were it would not give individuals a right to sue (instead, the right would be with the state). Lastly, he noted that even if enforceable, this would have no monetary value and could not lead to an individual payout via Due Process.

So, in the end, SCOTUS gave Jessica nothing. Now, we can all weigh in on whether Scalia ‘did justice’ to her; I have incredible sympathy for Jessica but happen to think his argument is correct, that under the law and Constitution, a restraining order does not give her the right to get money from the town. But I will say that the court did her a great injustice, in sending her down a 6-year rabbit hole of being denied, then allowed, then denied again from recovery. How, then, can we all agree that the court was unjust? The injustice was the delay. The injustice was the tremendous cost in time, money, and emotional damage. The injustice was that the process for answering the question of how a mother should react to the murder of her children and how a town should support her gave no closure, and instead just had transaction costs in landing her, in 2005, exactly in the same spot she was in 1999.

The Lazy Counter: justice takes time!

Now, angry lawyers out there, don’t mistake me here: I am not saying appeals never bring justice. I too am in awe of the work of the Equal Justice Initiative, which uses the appeals process to fight wrongful convictions. I am not arguing appeals are unjust. I am arguing that a legal system that takes 6 years and millions of dollars to answer any question is doing an injustice to EJI’s clients as well. Was Walter “Johnny D.” McMillian served well by a justice system that put him in jail for years while his appeal stagnated?

What is obvious here is that lawyers, in their blindered vision of pursuing justice, are doing their best to get to the right outcome, and while cost may be a consideration for process improvement, it is not a consideration for justice. Maybe a simpler, more transparent, faster court process would do a worse job. But I think that every complexity, opacity, and delay is an injustice done by our system to the people who are seeking justice through it, and I would be amazed if Johnny D would have been thankful for all the technicalities that could be used to get the right outcome after what the Alabama prison system put him through.

Is “justice” trying to do too much?

Unlike in the case of Johnny D, Jessica’s case may show how we stretch the bounds of the system to get to an outcome that feels right, rather than being by the rules. Johnny D was caught up by a racist abuse of criminal justice, which is intended to keep citizens safe; there was no ‘community solution’ available for the murder of which he was falsely accused.

Jessica, however, was simply not treated right by her town. Anyone, regardless of their politics or views, would hope that the town has some level of care for their aggrieved, and that the community could pull together around her. Obviously, this did not happen–and especially not by the town’s police department, which had the opportunity to admit it was asleep at the wheel under the knowledge that they had qualified immunity. Since community solutions were lacking, she brought a civil case, which had a desirable end–helping an aggrieved mother and recognizing that her case was mishandled–but inadequate and undesirable means: lawyers lawyering.

I would be amazed if Jessica herself thought of the connection of: restraining order->Ku Klux Klan Act->federal oversight of law enforcement->property recovery under the Due Process Clause->monetary damages for police inaction. From my legal education, this sounds like the highly technical argument of a creative activist lawyer, who wants to change the law as much as he wants to help his clients. So, were Jessica’s lawyers trying to do too much through the justice system? Was the better solution, then, not to turn back to the community and use public truth-telling or even honest requests for help?

The elites-for-the-people against the people

This made me react against a phenomenon I have seen across law schools, firms, and courts. At elite law schools, the administration touts the number of Access to Justice projects and amicus briefs written by faculty in cases like Gonzales. At elite law firms, they attract top performers with huge salaries, sure, but they mostly talk about how many interesting pro bono cases their associates can take on. And on top Circuit Courts, most famously the Ninth, my classmates go on to help judges think creatively about how to reach just outcomes via legal wrangling. All of these activities are done with a mix of noblesse oblige and self-importance, but are honestly intended to help find justice for the downtrodden. I simply think these do-gooders don’t notice that all these activities are costly.

If you are not a lawyer, you may not realize how systematic this cost has become. Non-lawyers view courts as places where people with causes of action come and get answers based on the law. Lawyers know better: this certainly happens, but in parallel, dozens of groups (plaintiffs lawyers and activist groups on all sides of every issue) are targeting certain laws and certain constitutional questions, and are searching madly for standing. As in, they comb the news and low-level lawsuits to find one they can fund through as many appeals as possible to get the law changed or even just to get a ruling on a fact pattern that is friendly to them. In this, let me pick on my own team: in Carpenter v. US, in which the government used the cell phone location records of Carpenter and his friends without a warrant to arrest and convict them of robberies, there were no fewer than 16 amicus briefs by privacy activists (the CEI, EPIC, EFF, the Fourth Amendment Scholars, and the list goes on). Carpenter v. US was about many deep legal deliberations on the importance of privacy, but I have to say, long before it reached SCOTUS, it was no longer about justice for Carpenter, who had been in jail for two years and who wasn’t getting out even if he won. While it was a victory for my ‘team’ in saying that the government needs warrants if it wants cell phone location records, maybe justice isn’t just about getting victories for my team, if that victory comes at the cost of multiple appeals, dozens of lawyers and clerks, national media coverage, uncertainty for cell phone users and companies, and those 16 institutions writing briefs.

I therefore ask proponents of justice, who are trying to use their elite position to improve the system’s outcomes for the downtrodden, to be a little bit more humble and self-focused. Instead of sitting in seminars or court sessions deliberating on ‘what is justice,’ ask whether the justice system is the right way to seek the right outcome. Ask whether, maybe, it would be better to go out and act positively toward your fellow man rather than demand money, time, and attention to the causes, cases, and opinions of the (all elite and elitist) members of legal groups.

Invasiveness is Injustice

Across all legal disputes, I think the thing that rankles me–and all non-lawyers–is how prominent law is in our lives. If I need to use the justice system, I know it will become a major part of my life’s spending, but even if I never am called into court, I know that court cases are going to continue to be high-profile, lawyers are going to continue to increase their share of the economy, and professors are going to keep publishing books, seminars, articles, and blogs about ‘how can people like me bring just outcomes?’

So, maybe, we can find some justice for all if the legal system simply recognizes that ‘what is justice’ is not a question of all-encompassing, existential values, but a question of how to run an institution. Maybe what is important here is not the rights that we seek to gain for the oppressed by any means necessary, but of building and maintaining a structure (a Constitution, if you will) where anyone can engage, or not, with a system that uses just methods. High cost, delay, opacity, and central control are not just methods and show that the system is not working effectively.

We can all agree, left and right, that regardless of the answer, the system, the method of justice is itself broken if it cannot help but be a burden. Justice should not be so costly in our lives, and it is a failing of lawyers and judges to make their own jobs so important, pervasive, in control. I hope, with all the fantastically intelligent amicus-brief-writers out there, we can find a way to at least cut back that injustice.

Nightcap

Brandon Christensen Links , , ,
  1. One nation’s heroes are another’s war criminals (statues) Clare Mulley, Spectator
  2. Unraveling the mindset of victimhood Scott Kaufman, Scientific American
  3. The rage machine comes to St. Louis Jerry Taylor, Niskanen Center
  4. Morals, politics, and evolutionary drift Federico Sosa Valle, NOL

Nightcap

Brandon Christensen Links , , ,
  1. Adam Smith and international relations Edwin van de Haar, AdamSmithWorks
  2. Adam Smith: a historical historical detective Nick Cowen, NOL
  3. Adam Smith: why I turned right Bruno Gonçalves Rosi, NOL
  4. Adam Smith: taxes, free riding, and federation Notes On Liberty

Rawls, Antigone and the tragic irony of norms

Aris Trantidis Culture, Liberty, Philosophy , , , , , , , , , , , ,

Is civil disobedience justified when it invokes a moral objection to target a law that has been enacted through a legitimate process? The reason societies seek to establish a legitimate process in law making is because they want to set up common rules and norms which people who disagree with them will still have to abide by. However, history shows us many instances in which, even in a democratic system, civil disobedience both triggered and animated a debate on legitimately enacted rules and, often, led to their revision as well as the reform of the procedural rules that allowed their enactment in the first place.

Rawls’ position on civil disobedience struggles with this question. His position is that, once society has set up principles of justice in an institutional setting, acts of civil disobedience are just insofar as they appeal to the sense of justice of the majority and should be willing to bear the consequences of their actions. We may read the Rawlsian perspective as follows: these acts are still of value because they re-launch a process of public reasoning regarding the law itself.

However, the implications from this statement are broader and baffling. First, we don’t know how far this revision can go. Will it be allowed to cast doubt on the basic principles of justice which society previously agreed to observe? Can it challenge the procedural source of legitimacy for the contested norms?

Second, civic disobedience cannot be reduced to appeals to a sense of justice demanding the revision of law through the same process. Instead, the rationale behind civil disobedience reminds us that there will always be competing conceptions of justice that go as far as challenging the source of legitimacy – what some have come to accept as the just process may no longer seen as just by others. A society’s prior decision at a single historical moment that this is a just process for law making does not end the debate over different perceptions of justice concerning both norms and processes.

Moreover, acts of civil disobedience appear in moments in which different moral norms clash and judgment should be passed regarding which one takes precedence over the other. Episodes in the US history, particularly regarding the civil rights of African Americans, epitomize the important role of acts of disobedience in invoking a higher moral ground against norms approved by the majority through the institutions of a democratic system. We have learnt from history that these moments spawned animosities and brought about new episodes of conflict. They were emotionally disturbing episodes.

This implies that social contract theories tend to adopt an a-historical approach to norm-building and a, strangely- a-social view of public reasoning. Norm-building is seen as cleansed of emotions and often dismissive of the idea that there will be unintended and unforeseen consequences. A reduced historical and social conception of justice is what acts of civil disobedience reminds us of. The process of defining justice as norms and as process remains an open turf for never-ending, reflective social interactions that no constitutional moment can capture, crystallise and entrench indefinitely.

These three elements – the historicity and sociability of norms, normative contradiction, and the emotional dimension in the conflict over norms – is manifested in Sophocles’ masterpiece, Antigone. Sophocles’ theatrical play on civil disobedience was written around 441 BC, about 2,400 years before Rawls’s work. It conveys a nuanced message on norms, normative debates, public deliberation and reasoning, and sees the social nature of all as a human tragedy.

The play is set in the aftermath of a civil war in Thebes and the final battle which Thebes survives the attack of seven exiled Theban generals. One of the generals, Polynices, son of King Oedipus, fights his own brother, Eteocles, a defender of the city. In that fight, the two brothers kill each other.

Creon, the legitimate King of Thebes and uncle of the two brothers, issues a public order for Eteocles to be buried with honours and for Polynices to be left outside the walls to rot unburied as punishment for his betrayal. Creon also orders that whoever tries to bury Polynices’s body shall be arrested and executed.

Polynices’s sister, Antigone, defies Creon’s order and secretly buries her brother in accordance with the religious tradition that demands that the dead must be buried. Soon after, Antigone gets arrested and is brought by guards before Creon and the city. She chooses not to apologize for her actions or claim ignorance of law. Instead, she confronts Creon by invoking that the law of the gods is superior to the law of men.

Creon sentences her to death, publicly stating that everyone should be treated equally before the law. He would make no exception for her niece. Creon presents himself as a just leader who firmly adheres to ‘equality before the law’ even if that means he would sentence to death one of closest family members. The law, he stresses, is above everyone.

Antigone’s public act with an emotional appeal to the law of gods initially fails to trigger sympathy from the people of Thebes and Creon insists on his sentence. Antigone is taken off stage to be buried alive in a cave.

Creon’s own son and Antigone’s fiancé, Haemon, rushes to defend Antigone but he too fails to convince his father to change his decision. Even against his son, Creon reiterates his conviction that the law takes precedence over personal relations. But gradually the people of Thebes, the chorus of the play, changes its stance and starts showing more sympathy to Antigone’s drama.

In the next scene, a respected prophet named Tiresias makes a public interference. He tells Creon and the city that their neglect of the moral law will displease the gods and will bring more sorrow and pain to Creon’s family and the city of Thebes. The leader of the chorus changes his mind and asks Creon to reconsider his decision and set Antigone free. We are witnessing here that public is changing its views following a morally charged debate triggered by an act of civil disobedience. Antigone disobeyed the law guided by her love for her brother, but she was also honouring the law of the gods. Creon decides to spare Antigone. Emotions and fears have a drastic effect on public perceptions political decision making.

But Creon’s decision came too late. Antigone committed suicide. So did Haemon and, following the news of his death, her mother and Creon’s wife, Eurydice. The play ends with Creon devastated, isolated, discredited and vulnerable, and the city of Thebes descending back into chaos.

Rather than a clear clash between a hero and a villain, the two protagonists are tragic figures and so is the city itself. Creon wants to demonstrate that he is a prudent ruler who obeys the law that he rightfully sets. But he has to listen to the people he commands. His confrontation with Antigone is his own public act in which he defends his decision. The chorus, representing the people, initially sides with Creon but turns against him after observing a human drama unfolding and after hearing the menacing words of a prophet about the incoming doom. Perceptions of justice are drastically reshaped through an interplay of feelings, reasons and fears. Deliberation is emotionally charged.

Unlike Rawls, Sophocles’ theatrical play presents us with a richer blend of public reasoning, emotions, emotive responses, and unforeseen and unintended consequences in a debate over clashing norms and perceptions of justice. Creon – the personification of equal rules for everyone including his own relatives – is the legitimate political authority but his decision creates a personal and civic catastrophe. Thebes descends into a spiral of death and civil unrest. A just act of disobedience triggers a spiral of turmoil and tragedy. Emotions and personal affections guide decisions that produce unforeseen dramatic developments for the protagonists and the city as a whole.

The Greek drama is purposefully presented as a morally inconclusive story. Antigone had no initial intentions to make her actions a public statement and did not wish to bring down the entire political system. But after her arrest she did make a dramatic public defence of her stance invoking the moral law. Creon was surprised and angered, torn between his adherence to the rule of law and his duty towards his family. The Theban public watches all this astounded, emotional and anxious. This is far from a society that can be equilibrated into an orderly state. It cannot even rest secure about its own convictions.

Sophocles grasped much of what political theory tends to shy away from: the complexity and ambiguity surrounding normative thinking in human societies that tends to bring about tragic or fatal results for every system of norms shaken by its own contradictions. In short, Sophocles lyrically presents us the tragic irony of norms creation. Rather than taking a nomothetic stance, his play helps us reflect on the tragedy of human interactions from a nearly anthropological viewpoint.  

Sophocles allows the audience to pass their own judgment through both logical and emotional engagement. The audience is baffled by the merits of each of the opposing viewpoints – Creon’s defence of formal equality before the law and Antigone’s defence of a higher moral ground. But it is also touched and distraught by how tragic the protagonists are, trapped in the consequences of their own moral standing and reasoning. In Sophocles’ play, society is watching and reflecting on behaviors and norms through pathos, ethos and logos. After each performance, the verdict is a flow of tears rather than a canonical judgment.

Nightcap

Brandon Christensen Links , , ,
  1. What are the real fault lines diving Americans? George Hawley, Law & Liberty
  2. Beliefs and interests Chris Dillow, Stumbling & Mumbling
  3. Can we trust deliberation priests? Robin Hanson, Overcoming Bias
  4. R. Kelly and mob justice Irfan Khawaja, Policy of Truth

The Catholic Church, Pedophilia, and Gay Rights

Jacques Delacroix Current Events, History , , ,

Note: I wrote this eight (8) years ago, in April, on my personal blog, Facts Matter.

The Catholic Church is, first of all, a criminal organization. It conspired for several generations to shield criminals from justice, just like the Mafia. Reading the press, I experience a sense of growing disbelief. Many commentators sound as if it the Catholic Church should be given a pass, somehow. The reverse is true. I am not religious but I know enough about the traditional Jesus to remember that he held hypocrites in special contempt. (Within the context of his day, he called them “Pharisees,” a sect known for showing off instead of acting righteously.) The Catholic Church’s own historical, philosophical, and moral claims demand that its crimes be treated with special severity. The Catholic Church deserves enhanced penal sentences and seizure of property.

If you are a grief-stricken Catholic and you hesitate to leave the Church, you should wonder whether even your simple passivity does not make you complicit in the large-scale, systemic, criminal cover-up becoming apparent right now. If you believe that the Catholic Church has the ability to cleanse itself somehow, you have not been listening to the shameful lies and self-deceptions expressed by prelates, during Holy Week of all times.

As always, I pay attention to what one should reasonably expect to happen and that is not happening. It’s striking how nearly none of the accusations of pedophilia against the Catholic church concerns girls. Catholic sexual crimes against children are almost exclusively homosexual. It looks like we are speaking about thousands of homosexual crimes. It makes me wonder why I don’t hear a word from so-called “gay” organizations. I mean militant gay organizations. I do not (not) refer here to the many homosexuals who lead irreproachable and constructive lives. They have no more to do with priestly pedophilia than I am responsible for heterosexuals who cut up their wives into little pieces. Nevertheless, anyone who thinks that mass molestation of children by homosexuals within the church has no bearing on the discussion of homosexuals’ right to marry is dreaming. The numbers are just too large and the criminals are homosexuals, anyway you look at it.

Law, Judgement, Republicanism

Barry Stocker Liberty, Philosophy , , , , , , , , , ,

Draft material for a joint conference paper/Work in Progress on a long term project

This paper comes out of a long term project to work on ideas of liberty in relation to republicanism in political thought, along with issues of law and sovereignty. The paper in question here comes out of collaborative work on questions of law, judgement, and republicanism in relation to Turkey’s history and its current politics. Though this comes from collaborative work, I take sole responsibility for this iteration of draft material towards a joint conference paper, drafted with the needs of a blog with a broad audience in mind.

The starting point is in Immanuel Kant with regard to his view of law and judgement. His jurisprudence, mostly to be found in the first part of the Metaphysics of Morals on ‘The Doctrine of Right’, is that of law based on morality, so is an alternative to legal positivism. The argument here is not to take his explicit jurisprudence as the foundation of legal philosophy. There is another way of looking at Kant’s jurisprudence which will be discussed soon. 

What is particularly valuable at this point is that Kant suggests an alternative to legal positivism and the Utilitarian ethics with which is has affinities, particularly in Jeremy Bentham. Legal positivism refers to a position in which laws are commands understood only as commands, with regard to some broader principles of justice. It is historically rooted in the idea of the political sovereign as the author of laws. Historically such a way of thinking about law was embedded in what is known to us as natural law, that is, ideas of universal rules of justice. This began with a very sacralised view of law as coming from the cosmos and divine, in which the sovereign is part of the divinely ordained laws. Over time this conception develops more into the idea of law as an autonomous institution resting on sovereign will. Positivism develops from such an idea of legal sovereignty, leaving no impediment to the sovereign will.

Kant’s understanding of morality leaves law rooted in ideas of rationality, universality, human community, autonomy, and individual ends which are central to Kant’s moral philosophy. The critique of legal positivism is necessary to understanding law in relation to politics and citizenship in ways which don’t leave a sovereign will with unlimited power over law. Kant’s view of judgement suggests a way of taking Kant’s morality and jurisprudence out of the idealist abstraction he tends towards. His philosophy of judgement can be found in the Critique of Judgement Power, divided into parts on aesthetic judgments of beauty and teleological judgments of nature.

The important aspect here is the aesthetic judgement, given political significance through the interpretation of Hannah Arendt. From Arendt we can take an understanding of Kant’s attempts at a moral basis for law, something that takes political judgement as an autonomous, though related, area. On this basis it can be said that the judgement necessary for there to be legal process, bringing particular cases under a universal rule, according to a non-deterministic subjective activity, on the model of Kant’s aesthetic judgement is at the root of politics.

Politics is a process of public judgement about particular cases in relation to the moral principles at the basis of politics. The making of laws is at the centre of the political process and the application of law in court should also have a public aspect. We can see a model of a kind in antiquity with regard to the minor citizen assembly, selected by lottery, serving as a jury in the law courts of ancient Athens. It is Roman law that tends to impose a state oriented view of law, in which the will of the sovereign is applied in a very absolutist way, so that in the end the Emperor is highest law maker and highest judge of the laws.

As Michel Foucault argues, and Montesquieu before him, the German tribes which took over Roman lands had more communal and less rigidly defined forms of court judgement, and were more concerned with negotiating social peace than applying laws rigidly to cases. Foucault showed how law always has some political significance with regard to the ways in which sovereignty works and power is felt. That is the law and the work of the courts is a demonstration of sovereignty, while punishment is concerned with the ways that sovereignty is embedded in power, and how that power is exercised on the body to form a kind of model subjugation to sovereignty. The Foucauldian perspective should not be one in which everything to do with the laws, the courts, and methods of punishment is an expression of politics narrowly understood.

The point is to understand sovereignty as whole, including the inseparability of institutions of justice from the political state. The accountability of the state and the accountability of justice must be taken together. Both should work in the context of public accessibility and public discussion. The ways in which laws, courts, and judges can be accountable to ideas of autonomy must be declared and debate. Courts should be understood as ways of addressing social harms and finding reconciliation rather than as the imposition of state-centric declarations of law.

Role of a Citizen in Hegemonic Authoritarianism

Shree Agnihotri Law, Liberty, Philosophy , , , , ,

I want to begin a n-part series on Hannah Arendt. Why Arendt? Because I wrote a paper on her last semester and have been obsessed ever since. I will pick up one theme (or a sentence and sometimes just a phrase) from her work and try to either describe it in contemporary political terms or evaluate it against legal theories, political and moral. All this, I will do under the presumption that there are some political ideals like democracy, constitutionalism, liberalism that exist within the domain of possibility for polities irrespective of their legal culture. What I will also presume is that all political ideals function on a spectrum and it is difficult to accurately pin point exactly when something has turned from being tolerable to just plain rotten.

 

At various points in history, societies become obsessed over a political concept. Every once in a while, societies experience an onslaught of violations. Violations of their personal, maybe innate, sense of justice. I am not going to argue on the nature of this sense of justice. Instead, I will point towards our basest moral instincts. If you agree that there is such a thing as conscience that can not only exist but also develop outside of the legal system, you will see that it relates to how we think about what is wrong and what it right. Ergo, justice.

The violation of justice shakes things up enough for us to evaluate and figure out which political ideal, if protected, could have saved us. Against the Nazi regime it was the Rule of Law, for feminists it is Equality, against the Nanny State, it is liberty, and so on. In a bid to make amends, we compensate by institutionalizing it, giving it a place of honor in public discourse, and protesting all violations, big or small.  Every once in a while, the political concept finds a life of its own – growing differently in different parts of the world, becoming an essentially contested concept. After a point of time, the omnipresence of the principle starts to define the terms of the debate in matters unconnected with it.

Today, it is Authoritarianism. Not one where the ruler does not even wish to keep up the pretense of legality and justice but the kind which creeps up when no one is looking. Hannah Arendt was worried about the latter. She worried not just about the big bureaucratic state with its mechanical application of law and antipathy towards political moral ideals, but also about the citizen under such a regime who observed and obeyed and said not a word because the violations were too minor and too remote to care about.

The citizen who refuses to think is the power source of authoritarian regimes. One can ask if Arendt expects her model citizens to practice constant vigilance, continuously evaluating the judgements of their sovereign for potential violations of some sense of justice. After all, her theory of power is based on a conception of power working through communication and co-operation as opposed to the traditional understanding of power emanating from coercion and commands. ‘Power corresponds to the human not just to act, but to act in concert’, said Arendt. She challenges the notion of power having a mandatory connection with sovereignty.

We must take note of the existing political background to her writings. She, along with half the world, stood against the Soviet Union. Communism was not just a bad word, it was inherently evil. So strong was her position against Marx’s writings that she blamed ‘the social’ for the destruction of the political realm. The political realm was the place for public discourse. Deliberation helped in protecting freedom whereas the urge for leveling down of human life resulted in the destruction of democratic practices. However, what was most egregious was the tendency of communism to regularly violate the autonomy of the individuals.

The ‘social’ was not just a command of a sovereign, it was implicit in hegemonic structures through which obedience was guaranteed. Why is this relevant today? It is relevant for its implications on how we judge regimes. Are we to be satisfied with just a form of legality or do we want to prevent violations to whatever principle it is that we have chosen to hold dear, albeit for the century? If we choose the latter, then Arendt’s expectations from a model citizen do not seem too demanding. We must constantly sit in judgment, not just of the laws that govern us (plenty of people do that already) but of the tools of reasoning we use in our political discourse. It is our justifications and not just our positions in a political debate that catalyzes hegemonic authoritarianism.

Is it always wrong to be angry?

Bruno Gonçalves Rosi Current Events, Politics , , , , ,

Recently it was brought to my attention a text by a Brazilian journalist “chocked with the anger the Brazilian middle-class has for Lula,” evidenced in the celebrations over Lula’s imprisonment. Honestly, I couldn’t finish reading it because I have better things to do, but in the first lines, she questions how people can be so angry and at the same time rejoicing while Brazil goes through such a turbulent moment. In her understanding, Lula represented the aspirations of millions of Brazilians, and these aspirations are now failing.

Ironically, I believe I know where her frustration comes from. Marxism is nothing but a Christian heresy.  Marx belongs to the group of 19th-century intellectuals who declared that God is dead. However, Marx was not able to get rid of all the Christian ethos. He simply transformed the working class into the suffering Messiah, the socialist intellectuals (like himself) into prophets and the future communist society into Paradise. Classical liberalism has its roots in Christianism, and Marxism is one step further away from it.

One of the most basic Christian teachings (expressed by Jesus himself) is “love your enemies.” Maybe this doesn’t sound controversial today, but it certainly was in 1st century Palestine. My understanding is that, as a deformed form of Christianity, Marxism is questioning how people in Brazil are failing to love Lula, their enemy.

However, Jesus didn’t simply say “love your enemy.” He went on to explain what he meant by love. Love in a Christian sense is less a feeling (although it is also a feeling) and more an attitude. It is mostly to follow the 10 commandments in our relationship with God and with other people.

The love Marxists preach lacks definition and as so lacks meaning. Therefore it is open to abuse. The love Christians preach is deep and complex, and not always easy to understand or to put into practice. But it is certainly not shallow. It is possible, Biblically speaking, to love your enemy and at the same time rejoice with justice.

Some may argue that this is not necessarily due to Christianity. Some philosophical school that predates Christianism (such as stoicism) preached something similar. I’m not going to argue about that. I’m not doing the most scholarly argument here, so you can’t take it or leave it.

Some may argue that the journalist I’m referring to is not a Marxist. To those, I quote John Maynard Keynes (who was not always a very good economist, but sometimes was very accurate in his observations about life):

Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist.

As a Christian, I don’t hate Lula and I don’t rejoice in his suffering. But I’m certainly rejoicing with justice. It may be hard to understand or to accept, but while I love my enemy I don’t necessarily approve his actions. And I certainly don’t consider my enemy my friend. It’s complex. As C.S. Lewis put it “people who have never been to Narnia find these things hard to understand.”

Worth a gander

Brandon Christensen Links , , , , , , , , , , , , , , , ,
  1. Zero hour for Generation X
  2. Confederate flags and Nazi swastikas together? That’s new.
  3. America at the end of all hypotheticals
  4. What’s left of libertarianism?
  5. Factual free market fairness
  6. Thinking about costs and benefits of immigration

Rules of Warfare in Pre-Modern Societies

Kevin Kallmes History, Liberty, Politics , , , , , ,

As my first foray into NOL blogging, I figured I would bring up a recent debate I had liberty, war, and peace that lingered in my mind: how have rules of war been maintained throughout history without a central enforcing agency? This question is fundamental to the understanding of the nation-state in IR theory, and is also an astonishing example of spontaneous order in an anarchic and chaotic scenario.

The quandary exists because even the laudable negative rights of life, liberty, and property ownership, as Eric Mack discusses in his essay on Just War Theory, require a positive enforcement by others. Similarly, “rules of war”–such as refraining from attacking non-regulars, not attacking neutral parties, abiding by the terms of treaties, treating prisoners of war with respect, etc.–are, theoretically, difficult to establish and dependent on positive enforcement. This is because if Party A respects these rules, they provide a perverse incentive to Party B to take advantage of Party A’s restraint, and if doing so gives Party B the upper hand, they can enjoy the benefits of betraying the rules of war with impunity. This is a classic Prisoner’s Dilemma, and if it generalized across many nations, the theory of rational choice would lead us to expect a coordination problem, in which those using the strategy of Party B would dominate the Party A’s.

I am certainly not the first to identify this, and the literature on overcoming coordination problems through iteration of the Prisoner’s Dilemma, regime collaboration, and international organizations and treaties is incredibly thorough (just for a taste, you can see James Morrow’s book, F.V. Kratochwil’s book, and articles by Duncan Snidal, Arthur A. Stein, and even James Buchanan and Victor Vanberg). However, I thought it would be interesting to examine the historical evidence of effective rules of war, particularly from the premodern period. Because global communication technology and networks, international courts, treaties, and organizations, and deterrence based on the terrifying weapons of modern war were lacking in antiquity and on through roughly the 18th century (open to argument on that one), premodern societies seem to be the best test of the effectiveness of rules of war and their mechanisms. I won’t discuss any in detail, and I am skipping many rules of war for which their effectiveness is not discernable (such as the Mahabarata, Deuteronomy, and the Quran), but here is a list of interesting examples for discussion:

  • The archaic Greek poleis:
    • As Victor Davis Hanson argues in his influential book, the Western Way of War, the incentive to focus on agricultural production and the fact that citizen-warriors were personally responsible for military service made the costs of long-term campaigns, especially given the lack of siege technologies and the difficulty in laying waste to wheat fields and olive trees, higher than the potential benefits. However, there were still disputes to be resolved, and raiding was still harmful to the agriculture of polis that was raided. In order to limit costs to both invader and defender, the poleis developed the hoplite warfare strategy, in which citizen-soldiers met for decisive conflicts in traditional, if not previously agreed, locations, in which limited territorial gains were afforded to the victor. While this does not describe every aspect of 7th-5th century warfare in Greece, this strategy pervaded the Greek mainland and allowed disputes to be resolved with minimal collateral damage and investment.
  • Thucydides’ Athens:
    • Though Thucydides’ History of the Peloponnesian War is seen as the invention of realism based on its “the strong did what they could, and the weak suffered what they must” representation of self-interest in foreign policy, his narrative as a whole shows an important constraint in war: if a military power makes war with the expressed intent of empire-building without casus belli, they will entrench their enemies, alienate neutral states, and cause divisiveness on the home front because they have lost the moral high ground. Thucydides notes that the majority of Greeks opposed Athens on the grounds of their selfish empire-building, and because of their inability to convince Sparta of their just motives, brutality to neutral states, internal dissension during the Sicilian expedition, and many other misfortunes of war (plague, death of Pericles, Persian intervention), Athenian power was broken. The lesson: Party B (from above) must consider the international reaction to abusing Party A, and at least make a public showing that the war is just. Also, if Hitler had only read his Thucydides, he might have known that marching through Belgium may be tactically sound, but he was risking the same reaction that the Athenians risked in the Melian massacre.
  • POW’s and ransoming in antiquity
    • Several rules of warfare were maintained through the mutual benefits to combatants, the most notable being the conventions concerning ransoming. From at least 5th century Greece (in the Sphacteria incident) to Caesar, citizens could be ransomed following a battle—and there were even conventional levels of payment for these POW’s. This was a benefit specifically afforded to “civilized” foes, and Roman practice increasingly became enslavement rather than ransom, but this convention was widespread for centuries, possibly showing that ransoming enemies is an Iterated Prisoner’s Dilemma.
  • Ancus Marcius and Just War Theory:
    • Along the same lines as the Thucydides example, the Romans engaged in the ritual of the fetiales, including the enumeration of the just cases for war, before invading an enemy. This limited war to official disagreements with neighboring states, and other religious conventions were maintained that limited certain tactics in war (a noteworthy passage of the Aeneid shows that putting on the armor of your enemies for stealth purposes would be doubly punished by the gods). These conventions included looking down on poison as woman’s weapon and on taking some religious statuary as booty, and though Roman generals still poisoned wells or robbed cities of their gods, they received negative reactions by their contemporaries.
  • Hostage policies throughout antiquity:
    • Another problem with the rules of war is the enforcement of treaties, which have credible commitment problems. Both Greeks and Romans made imperial gains by breaking treaties, but it was common practice to overcome the credible commitment problems of both alliances and treaties to end wars that hostages, usually the children of influential citizens or nobles, were exchanged. Whether they were exchanged both ways (more common in alliances) or passed only one way (usually from the defeated to the victorious), hostages were used at least 250 times by Rome and countless times by other ancient civilizations to ensure the enforcement of treaties.
  • Carthage’s “Truceless War”:
    • While we often think of ancient war as anarchic and based on the whims of generals, wars that completely lacked conventions or limitations were rare. In fact, following truces that allowed for collection of the dead, ransoming of both the living and the dead, and supplication for one’s own life go back at least as far as the Iliad, and wars that lacked such conventions were shocking to ancient historians. Such wars occurred when one side broke a general convention, usually the convention of allowing enemies to surrender alive and be ransomed. Because of this betrayal, their opponents would also stop following any rules of war, and such wars became not about achieving strategic goals but annihilating the opponent entirely. Carthage, following their loss in the First Punic War, fought a truceless war with their former mercenaries due to lack of payment that featured escalations in mutilation and crucifixion until the mercenaries were wiped out, at great cost in men and money to Carthage.
  • Roman 3rd party arbitration or intervention:
    • The Romans, after they gained international prominence but before they ruled the whole Mediterranean, took an interest in wars between their neighbors. While this sometimes included imperialism, in several instances they served as a 3rd party arbitrator of peace, and even as an enforcer of peace in Antiochus IV’s invasion of Egypt.
  • Blood feuds:
    • While mentioning blood feuds brings up images of Hatfields, McCoys, and senseless brutality over generations, blood feuds were actually a mechanism for limiting violence through threat of reprisal. While the effectiveness of this mechanism may be debatable, its intention as a limitation of violence is notable in several pre-modern societies, especially the Scots and Slavs.
  • Chivalric codes:
    • We should be careful of romanticizing this example, but from the 12th to 14th centuries, chivalry established rules of conduct for how knights should treat knights on and off the battlefield. Much of the conception of chivalry comes from poetic fictions about historical figures that were vicious or corrupt in many ways. However, it was actually the battlefield codes, such as ransoming rather than killing noble foes, that were actually practiced the most often, a trend that saw a brutal reversal in the War of the Roses. One might point out that neither the chivalric codes nor the earlier Roman codes of war included avoidance of harming civilians. This shows that, while rules of war were effective in practice at many points in history, they did not always have the same conceptions of what these rules were made to protect.
  • The Roman Catholic Church:
    • Catholicism influenced the rules of war in two ways: like the fetiales of the Romans, it established the grounds on which war was justifiable (and was influential on the ideals of chivalry), and the pope himself, through the power of excommunication, could limit the warring impulses of kings and lords. While many popes used their power to cause conflict, the church still had both moral influence and bargaining power, and was a powerful international institution for centuries that forced treaties on Christian rulers, provided a court of arbitration, and, several times, that tried to unite these leaders in war against non-Christians. The influence of Catholic peacekeeping measures waxed and waned from Charlemagne onward, but the Peace and Truce of God was one of the earliest attempts to protect non-combatants in wartime

This very incomplete list represents a lot of the more conventional examples of this phenomenon (sorry, but I am very conventionally educated). I would love if those who have other examples, especially from outside of Greece, Rome, and the Western World, would bring them up in the comments so I can expand my knowledge of the history of the rules of war!

The many iterations of rules of war in pre-modern societies shows the effectiveness of spontaneous order in creating systems that promote liberty and peace. These rules did not eliminate violence, cruelty, or imperialism, but they forced self-interested parties to check their selfish impulses. This is not an argument that international organizations with the goal of limiting war are unnecessary (and the Geneva Conventions are a laudable example of voluntary self-enforcement), but rather a demonstration of the wide reach of both Smith’s invisible hand and Hayek’s spontaneous order: even in the most anarchic of trades, long-term individual self-interest can support general interest, and a certain level of order is imposed on the chaos of war through the unplanned conventions of societies.

 

ἐν μὲν γὰρ τῇ οἱ παῖδες τοὺς πατέρας θάπτουσι, ἐν δὲ τῷ οἱ πατέρες τοὺς παῖδας

In [peace], sons bury their fathers, but in [war], fathers bury their sons.

–Herodotus, The Histories, 1.87.4.

A quick thought on justice

Rick Weber Culture , , , , , ,

I thirst for justice. Sometimes it nearly gets me killed.

Driving in Long Island traffic gives me many opportunities to exercise my justice muscle which just reduces my life expectancy by that much more. This whole “turn the other cheek” thing is health advice, not an ethical rule. Don’t get me wrong, I wouldn’t want to live in a world without justice. But as an individual I need to work on tempering my own craving. I need to quiet that voice deep in head that shouts “THEY MUST PAY!”

This desire for justice seems to be part of human nature. I’d bet that it’s an essential part of hunter-gatherer society. But in the society where I can perceive all sorts of injustices, it can lead me astray. I’m glad I’m not allowed to be a vigilante because I’d almost certainly kill myself in the process.

Expanding the Liberty Canon: Sophocles, the Tragedies of Oedipus and Antigone

Barry Stocker History, Liberty, Philosophy , , , , , , ,

Sophocles (496-406BCE) was the second of the three great tragedian of ancient Athens, the first, Aeschylus, was discussed in my last post.  Sophocles is best known for a group of three plays known as the Theban plays, referring to the city of Thebes, which was one of major states of Ancient Greece when it was divided between many city states.

The three Theban plays should not be thought of as a trilogy strictly speaking. Ancient Greek tragedies were written in trilogies, but these plays were written separately at different times. They are what is left over from a number of trilogies by Sophocles, as is normal with ancient authors many of his texts are lost. The three plays fit together as story, but do not have the level of integration of plays written together for performance as a trilogy at the competitions where tragedies were initially staged.

The Theban plays refer to the royal family of Thebes, round King Oedipus, who provides the title of the first play. The title strictly speaking is Oedipus Tyrannos. That ‘tyrannous’ is normally translated as ‘king’ rather than ‘tyrant’ is an interesting comment in itself on ancient Greek politics and ideas about politics.

The philosopers writing in Athens, at the same time as the great tragedies were staged, developed the idea of a ‘tyrant’ as a negative form of political authority, even a monstrous form of authority in which one man rules according to personal desires, unrestrained by custom, law, morality, and institutions.

However, one of those philosophers Plato accepted tyrants into his school, and made a notoriously failed attempt to bring the tyrant of the Greek colony of Syracuse in Greece round to the idea of ruing with Platonic wisdom and justice. It is not just the view of anti-democrats like Plato that tyrants might have some element of legitimacy in some contexts.

The sixth century Athenian tyrant Pisistratus had some respect as a strong ruler with just intentions who reformed Athenian institution.  ın the ancient Greek world a tyrant might still accept a citizens’ assembly and other well established institutions, so that the tyranny was focused on one person control of government rather than the complete subordination of every aspect of that city-state to arbitrary individual will.

The Theban plays are: Oedipus the King, Oedipus at Colonus. The story of Oedipus has become very famous, even for those who have never read or watched an ancient Greek tragedy. It also exists in varying forms going back to a brief mention in Homer’s Odyssey. The version in Sophocles is that a a king and queen of Thebes faced with a prophecy that their son will kill the father arrange for him to be exposed and die in the mountains.

The royal servant assigned to the task passes the infant Oedipus onto to a shepherd instead and Oedipus in the end becomes the adoptive son of the king and queen of Corinth. Discovering a prophecy that he will kill his father and marry his mother, Oedipus unaware that the royal couple who raised him are not his biological parents flees and ends up in Thebes where he kills man outside the city, who he later realises is his father King Laius. He then frees the city of a monster, the Sphinx.

Unaware that Oedipus killed their king, or that he is the son of that king, the people of Thebes offer him the vacant throne and marriage to the king’s widow Jocasta. So Oedipus unwittingly marries his mother after killing his father. The play Oedipus the King opens with a plague in Thebes and Oedipus’ search for the reason. The prophet Tireseas is forced to reveal his knowledge, which is that the gods are punishing Thebes for the stain of association with Oedipus, the stain of his unwitting crimes.

Oedipus suspects Jocasta’s brother, Creon, of a arranging the story as part of a conspiracy to take power. In this respect the play deals with the danger of a ruler who is given great power for good reasons, but becomes abusive and paranoiac in his use of that power. Oedipus’ further investigations lead to the confirmation of the story from Tireseas that he had rejected. Jocasta commits suicide and Oedipus goes into exile after blinding himself. In this way, the play suggests that tyranny is self-destructive as well as destructive of the state over which it is exercised. It also suggests the need to expel a ruler who threatens both the welfare of the city and restraints on his power. 

Oedipus at Colonus deals with the exile of Oedipus, in which he is protected by the king of Athens from persecution by Creon who has now taken power. As with Aeschylus, we see that Attic tragedy defends the role of Athens as ‘educator of Greece’ (a saying attributed to Pericles as explained in the post before the last one), even while having a critique of power.

Oedipus dies in a way that suggests he is close to the gods, and we can see another layer in the story of the tyrant. As a monster of some kind, Oedipus belongs outside the city state and when he is outside the city, he is in touch with a justice superior to that of the city, which belongs to human communities before state imposed laws. The divine power associated with such laws is, however, dangerous when associated with individual power using the organised violence of the state.

It is Antigone that is usually most associated with ideas of liberty, but I hope that remarks on the two other plays show how they have many ideas about the nature of law and liberty, and the dangers posed by political power. Antigone is the story of Oedipus’ daughter of that name and her resistance to the tyrannical tendencies of Creon.

Her brothers Polyneices and Eteocles had struggled for control of Thebes, ending in the death of both as Poyneices attacks the city, when it is held by Eteocles. Creon decrees that Polyneices cannot be buried with proper ritual and his body should be left outside the city for the wild animals to eat. This was an appalling prospect for ancient Greeks, and the desire for soldiers to avoid such a fate is a major theme of Homer’s Iliad.

Antigone insists on mourning her brother and attending to his corpse in the normal manner. Her defiance of Creon leads to Creon imprisoning  her in a tomb, where she commits suicide. The violence with which he imposes his will leads to the suicide of Antigone’s fiancé who is the son of Creon and then the suicide of Creon’s wife.

In the end Creon learns to accept the advice of Tireseas, the prophet persecuted by Oedipus, and to moderate his insistence on pushing his powers to the extreme. Antigone is the heroine of the customary, and even divine, law of Greece which precedes the edicts of tyrants like Creon, so can be seen as the defender of justice against laws based on political power rather than on the basic principles of human justice, what is often referred to since Aristotle as natural law.

There are questions about how far the original audience would have seen Antigone as a character to be admired though. The society was intensely patriarchal and women defying the authority of men was a horrifying prospect. Perhaps the dramatic context provided an opportunity to push at the limits of the ideas normal to audience, maybe it just allowed them to think that one of the dangers of bad government is that it produces mad dangerous woman, and the play does portray Antigone as unhealthily obsessed with death.

She can be seen as a heroine of justice, and is often taken as a symbol of justice above the state, by those of classical liberal and libertarian persuasion, but others as well. She might also be taken as a symbol of conflicts over justice taken to a dangerous and self-destructive extreme, so that she is guilty as well as Creon, before he learns measure and moderation in the use of power. In any case, there is much to think about with regard to law and liberty in these plays, and it is important to recognise the ‘thinking about’ and not just impose simple interpretations inattentive to the details of the plays. Judgements of liberty and justice require respect for context and particularity. 

3,278 Americans Are Serving Life Sentences for Nonviolent Crimes, Report Says

Adam Magoon Law, Liberty , , , , , , , , , ,

“Around 79 percent of the nonviolent life sentences without parole are drug-related, according to the ACLU, and around 20 percent are for property crimes. The remaining 1 percent are for traffic and other infractions in Alabama and Florida”

This seems like as good an opportunity as any to talk about libertarian law.  First of all, to the libertarian, there is no such thing as non-violent or “victimless” crime.  There can be no “crime against the state” or “crime against society” since there would be no state and “society” is an abstract concept that cannot be a victim.  Crime can only occur when there is a clear perpetrator and a clear victim.

This is the logic used to deduce that there can be no punishment for consuming or selling drugs for example.

Second, libertarian punishment is confined to the concept of “proportionality”.  Proportionality is described by Murray Rothbard as:

“…the criminal, or invader, loses his own right to the extent that he has deprived another man of his. If a man deprives another man of some of his self-ownership or its extension in physical property, to that extent does he lose his own rights.  From this principle immediately derives the proportionality theory of punishment-best summed up in the old adage: “let the punishment fit the crime.””

Walter Block famously expanded on this concept with his “Two Teeth for a Tooth” rule saying:

“In encapsulated form, it calls for two teeth for a tooth, plus costs of capture and a
premium for scaring. How does this work?

Suppose I steal a TV set from you. Surely, the first thing that should occur when I am captured is that I be forced to return to you my ill-gotten gains.

So, based on the first of two “teeth,” I must return this appliance to you.

But this is hardly enough. Merely returning the TV to you its rightful owner is certainly no punishment to me the criminal.

All I have been forced to do is not give up my
own TV to you, but to return yours to you.

Thus enters the second tooth: what I did (tried to do) to you should instead be done to me. I took your TV set;
therefore, as punishment, you should be able to get mine (or some monetary equivalent). This is the second tooth.2″

The claim is often made that a libertarian society would be less just for the poor and disadvantaged but take this list of crimes that caused human beings to be sent to prison for the rest of their lives and compare it to the logical corresponding punishment called for by the proportionality rule and tell me which is more just.

“Among the most obscure offenses – mostly from Louisiana and Mississippi – documented in the report as the impetus for life sentences:

  • Possessing stolen wrenches
  • Siphoning gasoline from a truck
  • Shoplifting a computer from WalMart
  • Shoplifting three belts from a department store
  • Shoplifting digital cameras from WalMart
  • Shoplifting two jerseys from an athletics store
  • Breaking into a parked car and stealing a bag containing a woman’s lunch
  • Stealing a 16-year-old car’s radio
  • Drunkenly threatening a police officer while handcuffed in a patrol car”