There Oughtn’t to be a Law

If you’ve ever said to yourself, “there ought to be a law,” you should probably rethink that position.

In the first place, there probably is a law that governs whatever you are up in arms about. As I’ve noted before, there are literally so many federal criminal laws that nobody can even say for sure how many there are. And, because federal agencies have the authority to issue rules and regulations, there may be as many as 3,000 administrative regulations that carry criminal penalties. Then, of course, are the state laws. Traditionally, federal criminal law was limited to very particular sorts of crime inherently related to the federal government (counterfeiting, for example.) As a result, the vast majority of criminal laws were promulgated at the state level. The tremendous “federalization” of criminal law hardly did away with did any of the state laws (with rare exceptions of federal preemption), and so there are far more laws now than ever.

Secondly, and more importantly, even where there is not a statute that directly addresses a particular set of circumstances, existing common law still applies. Common law is court created law (or “court discovered law” if you are a serious believer in the natural law and the power of common law courts to divine the eternal precepts thereof.) Common law is developed over time by the courts relying and building upon past rulings. In the words of Montaigne, “in rolling on [laws] swell and grow greater and greater, as do our rivers.” So, for example, there may not be a statute that requires above-ground pool manufacturers to include warnings against diving, but case law almost certainly creates such a duty. Similarly, there may not be a statute or regulation preventing breakfast cereal manufacturers from putting a certain poison in their foods, but there doesn’t need to be; established negligence and products liability case law provides substantial protections for consumers.

And finally, law is quite often not the proper mechanism to achieve your (no doubt noble) aims. In the words of Jeremy Bentham, “Every act which promises to be pernicious upon the whole to the community (himself included) each individual ought to abstain from of him: but it is not every such act that the legislator ought to compel him to abstain from.” In part, law is not an adequate solution to many problems because it is always enforced by violence or the threat of violence, and that violence has its own costs.

Next time somebody says “there ought to be a law,” ask whether they are certain that there is not some statute, regulation, or common law that does not already cover the subject matter. And, regardless of whether such a law exists, ask whether there is not some better, non-legal remedy for the perceived problem.

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Beer of the week: 12th of Never Ale – The idiom “on the 12th of Never” is used to express improbability. And, improbable as it may have seemed years ago, Lagunitas has been started putting their beer into cans. This, the first aluminum encased offering from Lagunitas, is a cloudy, straw-colored pale ale. There is lots of pineapplely hops, and a nicely rounded flavor. An excellent beer, even if it does come from a can.

Reading of the week: An Introduction to the Principles of Morals and Legislation by Jeremy Bentham, Chapter XVII§1, VIII-XV – In this excerpt, Bentham opines that drunkenness and fornication are among the pernicious behaviors that laws are ill-suited to preventing. “With what chance of success, for example, would a legislator go about to extirpate drunkenness and fornication by dint of legal punishment? Not all the tortures which ingenuity could invent would compass it: and, before he had made any progress worth regarding, such a mass of evil would be produced by the punishment, as would exceed, a thousandfold, the utmost possible mischief of the offence.”

Question for the week: If you could repeal any law, what would it be?

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Gifts are for the Givers

Christmastime is the season of giving. It is the season of charity. It is the season of gifts. But it is not the season of “pure altruism.” That is because, like Santa Claus, pure altruism is not real.

In both charity and gift-giving, the giver always gives to get something in return. We know this because all human action is a choice between alternatives and every action, as Aristotle teaches, “is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim.” So no charitable act is committed for its own sake, but with an aim at some good.

Only a cynic would opine that the good aimed at by giving gifts is getting gifts in return. And that explanation could scarcely account for charity, especially anonymous charity. One could certainly argue that the good aimed at is the good of the recipient of the gift. But that does not appear to be a satisfactory answer. Economic principles are applicable to all human action, as has been shown by a number of philosophers. And no voluntary transaction is conducted at an absolute loss, because there would is no incentive to do so. (Of course, parties occasionally make a bad deal and lose. And occasionally parties will take a loss now in the hopes of gaining more later.)

As Ludwig von Mises points out, every action is a form of exchange. Barter between individuals is an exchange of the most obvious type, but there are also “autistic exchanges.” An “autistic exchange” is one that an individual makes with himself. For example, if I go to the gym, I exchange my time and energy for perceived health benefits. Gift-giving and charity are other examples of an autistic exchange. “Where there is no intentional mutuality, where an action is performed without any design of being benefited by a concomitant action of other men, there is no interpersonal exchange, but autistic exchange.” The value of the gift is exchanged for the good feelings that come from making other people happy.

Like all exchanges, the autistic exchanges are only undertaken where the participants perceive that the value received is commensurate with the value given. I go to the gym because I perceive that that time and effort is worth the health benefits. I smoke a cigar because I perceive the health hazards and cost are worth the pleasure. I give a gift because I perceive the pleasure of gift-giving (and, to the extent that I expect anything in return, the possibility of gratitude and/or reciprocation) to be commensurate with the thought and value of the gift. Gift-giving, like all other human action, is essentially selfish.

And that’s ok! This is not an indictment of giving or of charity. Quite the opposite. It is in our best interest to give generously. We rightfully perceive that we get value from giving, even when we do not expect a gift in return. Gifts are for the givers, so be a giver this Christmas!
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Beer of the week: Fistmas Holiday Ale – This winter seasonal offering from Chicago’s Revolution Brewing Company is a real treat. This pretty amber brew has hints of ginger and cinnamon, without being over-spiced as many spiced winter beers are.

Reading of the week: The Errors of Santa Claus by Stephen Leacock – As noted last week, Leacock is one of the greatest gifts that Canada has given to the literary world. Whether he wrote for money or for his own pleasure makes no difference to us. (In the words of Mises, “a genius may perform his task for himself, not for the crowd; however, he is an outstanding benefactor of mankind.”) This cute little story shows another way in which gifts are given for the sake of the givers.

Question for the week: This economic analysis works for gift giving, but seems to fall apart at self-sacrifice, even to the point of death. Does such self-sacrifice revive the notion of altruism?


What was I thinking?

“What was I thinking?”

That rhetorical question is often used to express dismay at a lack of foresight e.g. “A while back, I passed on a chance to buy a Bitcoin at $400; what was I thinking?” Sometimes it goes to absentmindedness e.g. “I peeled a banana and accidentally threw away the banana and went to take a bite of the peel; what was I thinking?” But in both of these cases, the question is purely rhetorical because it is pretty easy to determine the thought process involved. In the Bitcoin example, the person presumably thought about the risks and advantages of buying a Bitcoin and determined that the potential upside was not worth the $400 risk. In the banana example, the person was clearly thinking about something totally unrelated to the task at hand, and mere distraction caused the errant movements.

There are times, however, when the question “what was I thinking?” is more than rhetorical, times when one honestly does not understand his own motivations. Every once in a while, we each do something that we are later unable to explain. It is occasionally impossible to determine what thought process or motivations led to the decisions made.

There appear to be multiple potential causes for such internal confusion. For one thing, not understanding one’s own motivation may be a simple failure to carefully self-evaluate. For another, there may be pre-rational motivations that get overlooked in the search for a rational explanation, such as instinct or something like it. But most likely, it seems, is the likelihood that the decision in question is the product of a great many thoughts and motivations, possibly even at odds with each other. The complicated interplay between our various desires, instincts, goals, etc. may simply be so convoluted that we are unable to untangle (or even recognize) them all.

In The Underdogs by Mariano Azuela, the motivations of the belligerents during the Mexican Revolution are explored.  A rebel leader called Demetrio tells about the time that he got drunk and spit in the face of a local political boss, Señor Monico. As a result, Monico brought “the whole God-damned Federal Government” down on Demetrio, who narrowly escaped into the hills. Demetrio asserts that all he wants is “to be let alone so [he] can go home.”

His interlocutor, however, sees more in Demetrio’s motivations than Demetrio sees himself:

“It is not true that you took up arms simply because of Señor Monico. You are under arms to protest against the evils of all the caciques who are overrunning the whole nation. We are the elements of a social movement which will not rest until it has enlarged the destinies of our motherland. We are the tools Destiny makes use of to reclaim the sacred rights of the people. We are not fighting to dethrone a miserable murderer, we are fighting against tyranny itself. What moves us is what men call ideals; our action is what men call fighting for a principle. A principle! That’s why Villa and Natera and Carranza are fighting; that’s why we, every man of us, are fighting.”

This speech certainly works on Demetrio’s men, who emphatically embrace this noble characterization of their motivations despite the manifestly ignoble acts of plunder, rape, and murder in which they engage. But Demetrio’s reaction to this impassioned speech is more subdued; he orders more beer.

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Beer of the week: Corona Light – A Mexican reading deserves a Mexican beer. Corona Light is clear and pale and foamy. The aroma and flavor are pretty standard macro. There is a hint of lime in the aroma, and just a trace of nuttiness in the finish. A pinch of salt brings out the lime in the flavor, which is a big improvement. Still, Corona Light; what was I thinking?

Reading of the week: The Underdogs by Mariano Azuela – The title The Underdogs (Los de Abajo in the original Spanish) refers not to the rebels, but to the common folk of Mexico. Throughout the novel, it becomes clear that the people are always oppressed, no matter which faction has the ascendency.

Question of the week: Is it really the case that some motivations cannot be discovered through self-examination? Or is it possible that we are just too afraid to look deep enough?


Lost in the Crowd

“Black Friday” is a particularly appropriate time to consider the nature of crowds. Every year there are reports of people being trampled and assaulted in the rush to be the ultimate consumer. To get the best deals on crap that they don’t really need, people will behave in the most uncivil ways. And the vast majority of these people would be utterly ashamed to behave like that if they were not part of a faceless crowd.

There is nothing particularly insightful about the statement that crowds often bring out the worst in people. Looting, lynching, and rioting are all examples of how people, when relieved of individual responsibility, can engage in behaviors that no individual amongst them would dare. In the words of Kierkegaard, this is because “a crowd either renders the single individual wholly unrepentant and irresponsible, or weakens his responsibility by making it a fraction of his decision.” And the temerity to loot or lynch or riot is not to be confused with courage. In fact, it is a symptom of a profound cowardice. “For every single individual who escapes into the crowd, and thus flees in cowardice from being a single individual… contributes his share of cowardice to “the cowardice,” which is: the crowd.”

But while the crowd seems to relieve individuals of responsibility, it can do no such thing. The fact is that the crowd is a mere abstraction. It has no hands to shove, no feet to trample, and no neck to hang.

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Beer of the week: Laško Club – This Slovanian beer is a bit darker than gold with a very fluffy head. It’s aroma is typical of decent euro lagers, malty with that distinctive hops smell. I have been a bit disappointed by Eastern European beers in the past, but I rather like Laško Club.

Reading for the week: The Crowd is Untruth by Søren Kierkegaard – In this piece, Kierkegaard takes up the line from Paul’s First Epistle to the Corinthians, that “only one receives the prize.” He takes this to mean that the way to salvation is through an individual relationship with God rather than communion with others.

Question for the week: Is the crowd always more cowardly than the individuals in it? What about when a Gandhi or Dr. King inspires a group to noble ends? (I take it that Kierkegaard reply that the crowd cannot be inspired, only the individuals in it. But does that answer the question?)

 


Humility

This is the last post in a series on Franklin’s moral improvement plan, the rest of the posts are available here.

HUMILITY:  Imitate Jesus and Socrates.
-Franklin

When I first read Plutarch’s Life of Cato the Younger, it was paired with his Life of Julius Caesar. This juxtaposition seemed very favorable to Cato. Caesar, a second-rate Alexander and enemy of the Republic vs. Cato, virtue personified and defender of Rome. But a close look at Plutarch’s treatment of Cato makes it clear that the great biographer did not mean for Cato to be taken as the paragon of virtue.

The most pronounced inconsistency of virtue in Cato is his supposed humility. Plutarch shows that below this professed humility was a profound vanity. Cato repudiated his fellow senators for their ostentatious dress. But rather than wearing very plain and modest clothing, Cato wore a black toga that was calculated to stand out more than the even the most luxurious dress of his colleagues. He also made a point of not wearing underwear and sitting with his legs spread apart as if he did not already draw enough attention to himself.

Cato’s vanity is most visible in his visit to Antioch. He arrived to find “a great multitude of people outside the gates, ranged in order on either side the way; here the young men with long cloaks, there the children decently dressed; others wore garlands and white garments, who were the priests and magistrates.” Cato was incensed that the people should have such a grand ceremony in honor of his arrival. Of course, the extravagant greeting was not for him at all; the people were arranged to welcome a dignitary from Pompey. Cato himself, it seems, is the only person who had even thought of holding a parade in his honor. And this accidental admission gave the lie to his professed humility.

And finally, make sure that the audience sees what a hypocrite and poseur Cato was, Plutarch presents his suicide as a farce. Before the deed, Cato reads Phaedo twice. In that dialogue by Plato, Socrates calmly (some Roman philosophers would have argued “stoically”) accepted his fate and drank his poison. After reading this edifying tract on how to die with dignity, what did Cato do? He lost his temper and punched a slave in the mouth, badly injuring his own hand. When the time came to pull the proverbial trigger, Cato was unable to dispatch himself cleanly because he had trouble stabbing himself with his broken hand. He was forced, ultimately, to dig out his bowels with his bare hands. So much for imitating Socrates in his stoic and dignified death.OLYMPUS DIGITAL CAMERA

Beer of the week: Černá Hora Sklepní – This is Černá Hora’s “Cellar style” lager. It is an unfiltered, and therefore slightly cloudy, golden beer. The aroma is bready and the flavor follows closely. Because it is unfiltered, the beer has a bit more flavor than many Czech beers. There is a hint of spice and of apricot and there is just enough hops in the finish to round it out. Overall, this is a pretty good beer.

Reading for the week: The Life of Cato the Younger by Plutarch – A fitting reading would be the section about how Cato loved to drink wine all night and discourse about philosophy. But the suicide scene, presented here, is more on point.

Question for the week: It is probable that this post overstates Plutarch’s intent to show up Cato. For one thing, Plutarch explicitly states that the wearing of black was not out of vainglory. And he also says that Cato afterwards would laugh often at his misunderstanding at Antioch. But can the suicide scene be read any other way than as a farce?


Chastity

This is the thirteenth in a series on Franklin’s moral improvement plan, the rest of the posts are available here.

CHASTITY: Rarely use venery but for health or offspring, never to dulness, weakness, or the injury of your own or another’s peace or reputation.
-Franklin

Like Temperance, Frugality, and Silence, Franklin’s version of Chastity could easily be viewed as a sub-virtue of moderation. He does not advocate sexual abstinence any more than he advocates absolute silence, parsimony, or teetotaling. Rather, Franklin’s advice is to limit sexual exertion to a healthy level. Sex is not bad; over-indulgence is bad, particularly if it leads to a damaged reputation.

This view of chastity and eros would have served Hippolytus well. The mythical Hippolytus worshipped Artemis, the chaste goddess of the hunt, to the exclusion of Aphrodite, the goddess of love. In Euripides’ version of the story, Hippolytus comes on the scene with a an offering for Artemis: a “woven wreath, culled from a virgin meadow, where nor shepherd dares to herd his flock nor ever scythe hath mown, but o’er the mead unshorn the bee doth wing its way in spring; and with the dew from rivers drawn purity that garden tends.” And he follows this carefully cultivated sacrifice with a total rebuff of Aphrodite. “No god, whose worship craves the night,” he says, “hath charms for me.”

Hippolytus’ sage attendant understands the error of this attitude, and advises him to maintain at least “courteous affability” with all of the gods. Although he does not say so in so many words, this is because the gods of the Greek pantheon represent the many facets of humanity. It is fine, even proper, to have a favored god as a patron, but all of the gods must have their due. To deny any of the various gods entirely is to deny an entire aspect of human nature. And that is as true of Aphrodite as it is of the rest.


Beer of the week: Indio – When it comes to Mexican beers, darker is almost always better. This Mexican dark lager pours with big, sticky bubbles. The aroma is not much different than a Corona. The flavor is profile includes some rice and a slight hint of caramel that lingers. And, although it has more flavor than most pale lagers from south of the boarder, it is just about as refreshing.

Reading of the week: Hippolytus by Euripides – The play begins with Aphrodite spelling out exactly what her plan is to avenge herself upon Hippolytus. She is intent upon “bring to ruin all who vaunt themselves at” her.

Question for the week: Is rage particularly tied to love in a special way? Could Hephaestus, god of craftsmen, or Athena, goddess of wisdom, be as spiteful as Aphrodite?


Tranquillity

This is the twelfth in a series on Franklin’s moral improvement plan, the rest of the posts are available here.

TRANQUILLITY: Be not disturbed at trifles, or at accidents common or unavoidable.
-Franklin

As discussed in more than one earlier post, Epictetus is pretty much the go-to guru on not being disturbed by trifles. Did your favorite beer glass shatter when you dropped it? Hey, that’s what glass does; it breaks. You enjoyed it while you had it, but now it has just started it’s long and inevitable return to its constituent parts. Did you get splashed at the swimming pool? What did you expect? Water gets splashed around at the swimming pool, no big deal. Did your wife or child die? People are mortal; get over it.

Ok, so the death of a family member is more than a trifle. And when Epictetus compares the death of a child to the breaking of a cup, it just doesn’t ring true. Surely nobody is that stoic. At least no mentally healthy person is. (And, as I noted before, there is no reason to think that Epictetus was ever married or fathered any children. So he didn’t really know what it is like to lose a wife or child.)

Seneca, at least, admits that a certain amount of grief is appropriate in the face of death. “Let not the eyes be dry when we have lost a friend, nor let them overflow,” he writes. “We may weep, but we must not wail.” He admits that even this allowance seems harsh, but his reasoning is somewhat more compelling than that of Epictetus. To Seneca, pronounced grief is a false show of affection. Loud wailing is an outward attempt to prove one’s love. However, one can only keep up abject mourning for so long. So if the measure of one’s love for the departed is the extent of his wailing, then even the most bereaved must finally “be over” the loss. True friends, however, will measure their love, not in tears, but in happy memories. Because unlike lamentation, which must eventually exhaust itself, happy memories can go on indefinitely.

Beer of the week: Lagunitas IPA – This California/Chicago IPA is a lovely orange-gold with fluffy white foam. Although there is plenty of hops, it is not excessively bitter. This is a nice malty India pale ale with a hint of tartness in the finish.

Reading for the week: Letter LXIII to Lucilius from Seneca – Another problem that Seneca observes with abject lamentation is that it shows that the loved one was not appreciated enough during his life. It smacks of carelessness to wail over the time that one should have spent with the deceased. After all, shouldn’t we direct all of that emotion toward the friends that are still with us, lest we set up a cycle of waiting until death to give voice to our love?

Question for the week: Are you making the most of the limited time that you have with your friends and family? (Obviously not. Rather, how can you make better use of your time with your friends and family?)