A Sound Heart and a Deformed Conscience

This post was made possible by a generous contribution by Muriel toward the BeerAndTrembling education fund. Now that the campaign is no longer live, I encourage readers to participate by reaching out in the comments or through the “Make a Recommendation” page.

Mark Twain’s writing is always quotable, usually funny, and occasionally sublime. There are, of course, the odd missteps. For example, I find A Connecticut Yankee in King Arthur’s Court to be a very uneven mix of sunny humor and dark, cynical satire. And I was generally unimpressed when I recently cracked open Innocents Abroad. But tastes vary, and no body of work can be all chefs d’oeuvre.

Even Adventures of Huckleberry Finn is not unalloyed genius. Earnest Hemingway advised readers of Huckleberry Finn to quit before the final chapters. But, at least in my opinion, almost everything before Hemingway’s recommended cutoff point is excellent. The book begins with a notice: “PERSONS attempting to find a motive in this narrative will be prosecuted; persons attempting to find a moral in it will be banished; persons attempting to find a plot in it will be shot.” Despite this stern warning against looking for meaning in the book, it is impossible not to see something important in Chapter XXXI.

By that point in the book Huckleberry Finn and Jim have travelled a considerable distance down the Mississippi River together. Huck is running from his abusive father and Jim is running from slavery. Eventually, they fall in with two traveling grifters. These frauds try to earn quick money by giving dance lessons and lectures on temperance, “missionarying, and mesmerizing, and doctoring, and telling fortunes, and a little of everything.” They are, however, generally unsuccessful. Eventually, they decide on a more profitable scheme: they betray Jim and sell him back into slavery.

It is under these circumstances that Huck is faced with a moral crisis. He sees two options. One option is to contact Jim’s “rightful” owner, in the hopes that Jim may return to his previous slavery rather than the possibly harsher slavery with of his new masters. Or he can attempt to help Jim escape bondage yet again. It may seem easy, from the reader’s point of view, to see what the “right” thing to do is. The problem for Huck is that he has been taught that what is lawful is good, and what is unlawful is bad. And, according to the laws of man and God, Jim is meant to be a slave. To defy those laws is to become a social pariah and invite eternal damnation.

Huckleberry, as the narrator, describes his inner turmoil. He knows that helping a slave to get his freedom, according to society, is about the most wicked, low-down, rotten thing that he could do. He’d be positively ‘shamed to death to face his friends and neighbors after doing such a despicable thing. Moreover, he believes truly that “everlasting fire” is the reward for aiding Jim’s escape. He sincerely, desperately wants to be good. But being good means he must abandon his friend when he needs him the most. Huck tries to pray, but can’t because he cannot repent wanting to help Jim. And if he cannot repent, he cannot be saved. So he makes his choice:

“All right, then, I’ll GO to hell” …

It was awful thoughts and awful words, but they was said. And I let them stay said; and never thought no more about reforming. I shoved the whole thing out of my head, and said I would take up wickedness again, which was in my line, being brung up to it, and the other warn’t. And for a starter I would go to work and steal Jim out of slavery again; and if I could think up anything worse, I would do that, too; because as long as I was in, and in for good, I might as well go the whole hog.

Twain later wrote that Huck’s inner conflict was the collision of “a sound heart and a deformed conscience.” Society had played Huck a cruel trick by convincing him that virtue was evil and evil was virtuous. So while he believed honestly that he was irredeemably wicked, he was actually irrepressibly good. His sound heart overcame his deformed conscience.

Beer of the week: Bud Light Orange – Like some of Twain’s writing, this beer seems caught between being for children or adults. On the one hand, it smells and tastes like an orange lollipop. It occasionally even causes that peculiar pain you can get in the back of your jaw when eating citrus candies. On the other hand, it is beer. In fact, although it is too sweet, it is not quite candy-sweet. It actually tastes a bit like beer. But whoever Bud Light Orange is for, it ain’t me. (Although I honestly would try it as the base for a float with vanilla ice cream, because I am a kid at heart.)

Reading of the week: Adventures of Huckleberry Finn by Mark Twain – There is not much more to be said about this excerpt that I didn’t say above. But I really do find this to be one of the most moving pieces of writing I’ve ever read.

Question for the week: How can we avoid having our consciences deformed by a misguided society?


Bird Law

It has been said that cross-examination is the attorney’s opportunity to testify. That is because on cross-examination, lawyers are allowed to ask leading questions. So the lawyer shapes the testimony, and the witness is simply asked to confirm it. The witness doesn’t have a chance to explain himself or expand on his answers; he is simply expected to say “yes” or “no” on cue. And, as any Socratic interlocutor knows–or quickly learns–giving a series of yeses and noes can often lead to an indefensible position. On redirect examination, the other attorney may be able to get out any explanations or expansions needed to rehabilitate the witness, but it may be too late.

Once one recognizes the power that the questioner has, The Raven by Edgar Allan Poe becomes infuriating. The titular fowl answers gives the same one-word answer to every single question. The narrator recognizes almost immediately that the word “nevermore” is the raven’s “only stock and store.” And yet, the narrator still frames every single question to the raven in a way that is guaranteed to disappoint him! Instead of asking questions that call for negative answers, he continually seeks positive answers.

Here are a few places he could have greatly improved his interview with the raven:

Original
Q: [Will I ever] forget the lost Lenore[?]
A: Nevermore.

Improved
Q: Will I continue to be tormented by the loss of Lenore?
A: Nevermore.

Original
Q: Shall [my soul] clasp a sainted maiden whom the angels name Lenore[?]
A: Nevermore.

Improved
Q: Will I remain separated from Lenore?
A: Nevermore.

See? Once the narrator knows the answer that is coming, all he has to do is arrange the question to suit that answer. Instead, things get worse and worse as he keeps asking the wrong questions. And when it is time to rid himself of the bird, he makes the same mistake.

Original
Q: Take thy beak from out my heart and take thy form from off my door!
A: Nevermore.

Improved
Q: Do you plan on staying here long?
A: Nevermore.

It’s almost like the narrator didn’t really want to forget Lenore and be rid of the avian manifestation of his grief.

Beer of the week: Sorachi Ace – This farmhouse ale from The Brooklyn Brewery is brewed with the somewhat unusual Japanese hybrid hops variety of the same name. The beer is quite light in color and slightly hazy, with a foamy white head that dissipates quickly. The aroma is yeasty and lemony. The beer is crisp and bright, and finishes with a bit of spice and a lingering tartness that hangs in the back of the throat.

Reading of the week: Apology by Plato – Expected The Raven, didn’t you? Well that poem has already been used as a weekly reading, so although it is certainly worth rereading (which can be done here,) I picked Socrates’s cross-examination of Meletus for this week. Nearly two and a half millennia later, this portion of the Apology remains a masterclass in cross-examination.

Question for the week: In what contexts do you carefully frame questions to your advantage?


Anticommon Sense

This is the fiftieth post in a series on The Harvard Classics; the rest of the posts are available here. (Volume L contains the introduction, reader’s guide, and general index, and will therefore be addressed out of order in the final post of the series.) Volume LI: Lectures

Consider a town with a plot of land dedicated to grazing sheep. Every townsperson has free access to the land, and may graze as many sheep as he has. As ideal as this may sound, the town soon runs into a problem; the grass, it turns out, is a finite resource. The townspeople each realize that they individually reap the benefit of grazing their sheep on the public land, while the cost of doing so (in the form of depleted grass) is borne by everybody. This leads to overgrazing, if only because someone will conclude that overgrazing is inevitable, so he might as well beat his neighbors to it. In the end, the common resource that could have been advantageous to everyone is ruined.

This problem is known as the tragedy of the commons, and is familiar to most people. Because people see what the want to see, it has been used to justify policies ranging from privatizing natural resources, to nationalizing them.

One possible “solution” results in another problem: the tragedy of the anticommons. Suppose the townspeople, worried about overgrazing, change the rules for using the commons. Now, any use of the commons requires unanimous approval from the townspeople. They soon find that some people favor changing the commons from sheep pasture to cattle. Others prefer that the land be used for goats. The town vegans form a bloc to oppose all animal husbandry on the commons. Because there are so many stakeholders, it becomes a practical impossibly to negotiate any use for the commons. Rather than the land being overused, it is now underused because no consensus can be reached.

The Gordon Lightfoot song The Wreck of the Edmund Fitzgerald is an example of the tragedy of the anticommons. When a television producer approached Lightfoot about using the song in an episode of his show, Lightfoot only agreed on the condition that the producer also get the approval of all of the families of the victims of the shipwreck. The producer quickly realized that the transaction costs associated with tracking down and negotiating with 29 families would be prohibitive. Because too many people had a say in the conditions under which the song would be used, the producer wrote a similar song, and The Wreck of the Edmund Fitzgerald did not get used at all.

Beer of the week: Edmund Fitzgerald Porter – This brew from Great Lakes Brewing Co. is anything but a wreck. The aroma is similar to Guinness, but the flavor and mouthfeel are both more substantial. The beer is a little bitter, a little sweet, and a lot delicious.

Reading of the week: Law and Liberty by Roscoe Pound – The lectures included in the Harvard Classics set are almost entirely by then-contemporary Harvard professors. Roscoe Pound was a professor of jurisprudence at the time, but went on to become dean of Harvard Law. As a prominent educator and as a thinker who deeply engaged with the history and philosophy of the law, Pound would arguably have a case for inclusion if the Harvard Classics were to be updated today. This essay discusses the history of law and personal liberty in a way that may be helpful for understanding the conflicting individual and social interests at stake in the case of the commons.

Question for the week: Would a best solution to the problem of the commons include some sort of payment to those townspeople who do not have sheep and, therefore, do not use the commons? Or would would payments to non-shepherds amount to an undesirable incentive to not raise sheep?


The Law Revisited

This is the thirty-eighth in a series on The Harvard Classics; the rest of the posts are available here. Volume XXXVIII: Harvey, Jenner, Lister, Pasteur

The label on this week’s beer (pictured below with a pretty sweet lava lamp) makes the same claim as innumerable other German beers. In case you do not read German, bottle says that this beer is brewed in accordance with the Reinheitsgebot, the Bavarian “Beer Purity Law.” I have railed against that law in the past, but there are a few things that I would like to set straight.

For some background, the original Bavarian Reinheitsgebot was enacted in 1516. In short, the law regulated the ingredients allowed in beer. Under the Reinheitsgebot, beer could be made only with water, malted barley, and hops. Ostensibly, the law was intended to protect consumers from beer made with inferior ingredients. In practice, it stifled the innovative use of other sources of fermentable sugars, such as wheat or rye, as well as herbs or spices that could be used as an alternative to hops. It also proved to be an effective barrier to the importation of foreign beers that might include such ingredients.

When I discussed the Reinheitsgebot before, I claimed that the Reinheitsgebot was enacted as part of a scheme of protection for the local bakers’ guild. By reducing the demand for wheat and rye, the law reduced prices for those grains, much to the advantage of the bakers. However, I have also heard that the Duke of Munich owned virtually all of the hops farms in Bavaria. As if monopoly status was not enough, the duke used the law to force brewers to buy from him rather than use other herbs or spices to bitter their beer. Either way, the Reinheitsgebot is economic protectionism disguised as consumer protection. Whether it was for the benefit of the baker’s guild or the hops growing monopoly, it was certainly at the expense of everybody else. This sort of economic law was called “legal plunder” by French economist Frédéric Bastiat.

Additionally, I have asserted that the law is now only a marketing ploy. However, a version of the law does still exist on the books in Germany. It only applies to domestic beer production though, so non-conforming imports are now allowed into the country.  Its value other than as a marketing ploy is totally unclear to me, especially at a time when innovative brewers around the world are experimenting with new styles and ingredients.

Finally, astute readers will have noticed that yeast is not listed as an acceptable ingredient. Back in 1516, yeast was still centuries from being discovered. It was not until Louis Pasteur’s scientific experiments in the middle of the 19th century that we learned that alcoholic fermentation is the product of living yeast cells. Consequently, the modern version of the law lists yeast as a valid ingredient, as well as ground hops and hops extract. Obviously, yeast has always been used in beer making, even if the brewers did not actually know what it was. Hops extract, however is anything but traditional.

I still think that the Reinhietsgebot was a bad law when it was passed and that the current version is no better. I am glad that my own beer choice is not limited by that law.

Beer of the week: Aecht Schlenkerla Rauchbier Märzen – This dark brown rauchbier – German for smoked beer – comes from Bramberg, Germany. The name refers to the fact that the malt is smoked in a kiln over burning beechwood. It pours with plenty of tan head. The aroma is primarily of smoke, as is the flavor. For all the smoke, it is not overbearing. Especially as it warms, Schlenkerla shoes itself to be a very well-balanced brew.

Reading of the week: The Physiological Theory Of Fermentation by Louis Pasteur – For thousands of years before Pasteur’s discoveries, humans have used yeast for brewing and baking. In this excerpt, he describes in part how brewers unknowingly created the ideal conditions for yeast growth and fermentation.

Question for the week: Is yeast really an “ingredient” in beer? Usually, it is added to the wort, where it multiplies and ferments the sugars, and then it is filtered out. That makes it seem more like a process than an ingredient.


Spanish Haarlem

This is the nineteenth in a series on The Harvard Classics; the rest of the posts are available here. Volume IXX: Faust Egmont, Etc., Goethe, Doctor Faustus, Marlow

The First Amendment to the United States Constitution states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In that one sentence, the framers memorialized several of the “inalienable rights” central to the premise of the Declaration of Independence and the founding of the nation. Yet, despite how concise the amendment is, people seem constantly to misapprehend its significance. Here are a couple of critical points where people are often mistaken.

1. The amendment only applies to government action. People constantly confuse their right to free speech with a right to be free from the private consequences of that speech. A speech code by a company or private school is not subject to First Amendment analysis. Likewise, a private club may have religious requirements that a government actor may not.

2. That doesn’t mean that other laws do not matter. Some people on the internet hold the idea that “the First Amendment stops the government from infringing on your free speech, but it doesn’t stop me from punching you in the mouth.” Although that statement is technically accurate, punching somebody in the mouth violates laws independent of the First Amendment. Additionally, civil rights laws, government licensing requirements, and so forth may create obligations for private individuals or companies not to discriminate based on the exercise of certain First Amendment rights.

3. The amendment applies to all government action, not just the federal government. The plain of the first amendment states that “Congress shall pass no law…”; it does not mention state governments.  However, a long series of Supreme Court cases has established that the First Amendment (and most of the rest of the Bill of Rights) applies to state action through the “incorporation doctrine”. Even so, the First Amendment is probably redundant in most cases. Each state has its own constitution, and each state constitution includes free speech clause. The New York Court of Appeals, for example, has held that the free speech clause of the New York Constitution provides a greater level of protection than the First Amendment.

4. “Speech” consists of a lot more than just talking. Supreme Court cases have held that the First Amendment’s speech clause protects “expressive conduct.” That can mean a wide range of actions, including burning the American flag, nude dancing, remaining silent, or cross burning.

5. The amendment is especially important because it protects those without political clout. As a practical matter, no government would ever need to be restrained from punishing pro-government speech. Likewise, statements that everybody agrees with are under no threat of suppression. It is the provocative, the unpopular, the revolutionary that needs to be protected. Minority religious groups and others who are heterodox in the myriad ways that people may stray from conventional norms are the people who have the most to fear from popular government, and the most need for an amendment that protects, above all, the freedom of the mind.

Beer of the week: Primus – This week’s reading is set in what is now Belgium, with the principle action taking place in Brussels. So despite the constant references to “Netherlands” and “Netherlanders”, the play is best paired with Belgian beer.  Primus is a “premium lager” from Haacht Brewery in Flanders, Belgium. It is a standard European lager; it looks good, smells good, and tastes good. It is a well-balanced, if unexceptional, beer.

Reading of the week: Egmont by Johann Wolfgang von Goethe – In this scene, we learn that the Spanish governor of the Netherlands, the Duke of Alba, “published a decree, by which two or three, found conversing together in the streets, are without trial, declared guilty of high treason.” He also prohibited discussion on affairs of state and made criticism of the government a capital offense.

Question for the week: How many rights are in the First Amendment?


Justice Delayed

This is the tenth in a series on The Harvard Classics; the rest of the posts are available here. Volume X: Wealth of Nations

A popular measure of the quality of an individual judge or an entire court system is the speed with which cases are disposed. Where accused criminals must wait in jail for extended periods before their cases are tried, or where civil litigants cannot get finality on their claims in a timely manner, there is a problem. In the words of William Penn, “to delay Justice is Injustice.” And “delays have been more injurious than direct Injustice.”

Adam Smith, in his Wealth of Nations, even recommended a system whereby judges would be paid only at the conclusion of each case. “By not being paid to the judges till the process was determined, [the judges’ fees] might be some incitement to the diligence of the court in examining and deciding it.”

But there is more to an efficient judiciary than disposition rate. At the extreme, a judge could summarily convict every accused without taking the time to consider the evidence. That would be a very timely method, but not a just one.

To be sure, courts should be accessible and efficient and speedy in their distribution of justice. But to judge a court entirely, or even primarily, on its disposition rate is to miss the mark. Some cases require a long, deliberate consideration. Other cases benefit from the parties having ample time to develop their theories and evidence, and to explore a negotiated resolution. Justice delayed is justice denied, but justice rushed is no justice either.

Beer of the week: Home Grown American Lager – This is a tasty brew from Victory Brewing Company in Pennsylvania. It is brewed with six varieties of hops, and they impart plenty of juicy flavor. This pours pale and cloudy lager is quite nice.

Reading of the week: Wealth of Nations by Adam Smith – Wealth of Nations is best known as a glowing recommendation of free markets. But this excerpt discusses a couple of services that, Smith argues, must be provided by the sovereign rather than the market: national defense and courts of justice.

Question of the week: Smith goes on to point out that when attorneys are paid by the page for their legal writing, they tend to “have contrived to multiply words beyond all necessity, to the corruption of the law language.” What is the best method for determining attorney’s fees?


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.

IMG_0021

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?