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?
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.
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?
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?
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.
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?
In the 1860s, the Supreme Court of the United States heard the case of McGuire v. Commonwealth. Mr. McGuire was prosecuted and convicted for retail distribution of liquor in Massachusetts, where the so-called “temperance movement” had taken hold. Regardless of his federally issued license to sell liquor, Mr. McGuire was indicted and convicted of selling liquor in violation of state law. At the Supreme Court, his attorneys argued that the federal power to sell licenses for the wholesale of liquor preempted the power of the Commonwealth of Massachusetts to effectively nullify those licenses by prosecuting those who attempted to use them. If the states could do so, they would essentially hold the power to excuse themselves from the authority of Congress on any taxation and licensing issue. Their arguments were not availing.
Although the heart of the legal issue was the relationship between federal and state power, Messrs. Cushing and Richardson, the attorneys, were at their best in arguing against temperance laws on their own merits. They argued persuasively (especially to those of us with the benefit of hindsight) against prohibition. Many of their points are worth consideration for how prescient they were and how applicable they remain.
1. It is not true, as alleged, that wines, fermented liquors, or even distilled spirits, are poisons of themselves, otherwise than that everything we eat or drink may be deleterious if used in excess.
It is always striking how the word “temperance” is always used to mean “abstinence”, while the word itself surely implies “moderation.” And not only is alcohol not an evil in itself, it has health benefits as will be seen later.
2. In view of the example and injunctions of our Saviour and his Apostles, in this respect, it cannot be true that the use of wine is immoral of itself.
Rumor has it that there are actually certain Christian sects that claim that when Jesus turned water into wine that it was non-alcoholic because it did not have time to ferment. As if Jesus’s power was limited to changing water into grape juice and was insufficient for turning sugar into alcohol and carbon dioxide.
3. It is not true, as pretended, that it is our duty to abstain utterly from any object of health or enjoyment because others may abuse it. The effect of this doctrine would be to deprive us of everything desirable, even the dearest of all human relations; since nothing exists for the use of man which some men will not abuse.
This is a very similar argument to the one made in an earlier post on this blog about prohibitions on gambling. Viz. the fact that some people are unreasonable is not a sufficient reason to ban reasonable people from X.
4. It avails nothing to make war on the sale of distilled spirits; for spirits may be distilled in every man’s kitchen, by means as cheap, as accessible, and as manageable as the preparation of a cup of tea or coffee; and if it were not so, other anaesthetic agents exist, which the law cannot reach, such as opium and bang, the familiar means of intoxication used by more than half of the human race, to say nothing of the professed anaesthetic medicaments.
There are two arguments here, both of which are commonly advanced regarding the prohibition on hemp. 1. Despite the insane amount of money spent on the “war on drugs”, hemp is still easy to grow or otherwise obtain, and 2. cracking down on any given drug drives people to other drugs, often more dangerous ones. Many people have observed that if hemp were more available and accepted, that would be a tremendous step toward overcoming the current opioid crisis.
5. The universal prevalence of the use of one or another object of this nature, in all ages, all countries, and all states of society, serves to show that they satisfy a physical exigency of man’s organization as imperative as that of food, and of course laws cannot eradicate, although they may regulate, such use.
Ah yes, the biological imperative to get impaired. People have always self-medicated for depression, anxiety, and all of the other conditions for which we have only lately had names. Wine may not be the best medicine for these maladies, but it is also far from the worst.
6. It shocks the sense of mankind, to prohibit absolutely by law the use of wines, fermented liquors, and distilled spirits as a healthful beverage in moderation of use; and the effect of such laws, if rigidly enforced, would only be to introduce by the side of the vice of drunkenness, the worse one of universal hypocrisy.
Again, the parallels with arguments over legalized hemp are stunning. Several states have decriminalized hemp specifically for medicinal use. Those who would impose a total ban on hemp “for the public health” are surely hypocrites in this regard.
7. It confounds all distinction of right and wrong, in the acts of instructed men, and in the conscience of the less instructed, to seek to elevate the use of wine to the dignity of an illegal and immoral thing, for the suppression of which all the energies of society should be tempestuously exerted.
There is a lot going on here. In the first place, there is an important misrepresentation of the law. The laws of prohibition (be they alcohol, hemp, opium, etc.) traditionally do not criminalize the use of the product. It is not illegal to consume hemp, it is illegal to have hemp. This distinction is important because laws properly curtail actions rather than things. One should always remember that when a law purports to ban a thing, it is actually banning you from doing something. All bans are essentially limits on personal freedom.
Secondly, they touch on the amount of government effort that would be required to actually suppress the consumption of alcohol. The combined effect of alcohol prohibition and the “war on drugs” set back society immeasurably, if only because of the tremendous waste of money and manpower on the (attempted) enforcement of these laws.
The so-called temperance agitation has effected no abatement, in the whole, of the use or abuse of intoxicating drinks, and in the end will probably produce, by recoil, a state of things worse than that which existed before the agitation. No superiority then over the nation is due to those legislators of Massachusetts, who pretend to be “more powerful than Nature, wiser than Truth, better than God.”
Beer of the week: Lakefront IPA – It is a new year, but not a new beer. I’ve had this Milwaukee brew several times, and occasionally on-site at the Lakefront Brewery. The head leaves plenty of good lacing on the glass. The flavor is quite balanced, with a solid malt body layered with plenty of juicy hops. Lakefront are certainly doing good work.
Reading of the week: McGuire v. The Commonwealth, 70 U.S. 3 Wall 387 (1866) – There are some people who think that government regulation is the solution to every societal problem. But positive law is extremely limited in what it can accomplish. As the learned counsellors argue: “English and American society has been floundering along from one folly to another in the paths of false theory and unphilosophical legislation, under the influence of the idea that statute law is the all-sufficient remedy of every sort of human infirmity; an idea which is itself the special human infirmity of the well-intentioned people of New England.”
Question for the week: The temperance movement was led by Christians. What is the strongest scriptural basis for a policy of teetotaling?
This is the ninth in a series on Franklin’s moral improvement plan, the rest of the posts are available here.
JUSTICE: Wrong none by doing injuries, or omitting the benefits that are your duty.
According to Herbert Spencer, there is one law from which all other laws spring: survival of the fittest. Every individual ought to benefit to the extent that he is well adapted to his conditions and suffer to the extent that he is ill adapted. Consequently, all behavior that is conducive to survival is just. But this seemingly selfish principle has a number of caveats.
In the first place, the survival of the species is paramount over the survival of the individual. Spencer comes to this conclusion by comparing the ultimate result of the failure to survive. If any given individual (or even a multitude) dies, the species may live on. But extinction of the species necessitates the death of every individual.
One consequence is that adults have an obligation to the children in their family-group. Although adults deserve benefits commensurate to their fitness, infants deserve benefits inversely to their fitness. “Within the family-group most must be given where least is deserved, if desert is measured by worth.” The adults, therefore, subordinate their own good for the good of the infants.
Likewise, in larger society, individuals subordinate their own good, to some extent, for the good of the group. In living together, each individual gains some additional security against evils and some benefits from cooperation. In exchange, individuals must accept a certain amount of restraint, giving up the freedom to act in particular ways that harm or endanger the group. And ultimately, some individuals may even be expected to die for the good of the group.
Although the sacrifice of some individuals appears to be the complete subjugation of the individual to the group, society remains reducible to the survival of the fittest individuals. After all, the species or group or family is merely an abstract aggregate of concrete individuals. As the overall mortality of the society improves with cooperation, individuals live longer. And the longer individuals live, the more time they have for their superior adaptation has to show itself. Each individual, is therefore in a better position than ever to benefit from his superior adaptation or suffer from his inferior adaptation. “And vaguely, if not definitely, this is seen to constitute what is called justice.”
Beer of the week: Strela Cabo Verde – Contract brewing is when a brewer outsources the production of his beer. Pabst, for example, does not actually brew any beer any more; all of their beer is contract brewed. This is also common with “foreign” beers. The Bass that I wrote about in an earlier post was brewed in New York.
Strela is a beer from Cape Verde, off the coast of Africa. However, this bottle was brewed under contract in Belgium. On one hand, I would like to try an actual African beer. On the other, I am skeptical about the quality of African beer and well acquainted with Belgian beers. Unfortunately, this is probably the worst beer I have ever had from Belgium. Strela is a very pale adjunct lager. It smells of corn and tastes… bad. I hope that the stuff that is actually brewed in Cape Verde is better than this.
Reading for the week: Justice by Herbert Spencer – The chapter preceding this selection applies the principles of justice to the animals. Like human society, animal society develops more pronounced justice as the society becomes more complex.
Question for the week: Spencer acknowledges that as societies become more organized, individuals gain more benefits, but individuals also also become more constrained. And in some instances, society may demand more from an individual than he gains by being a member. Is there an inevitable tipping point resulting of the growth of society? Must increased organization always tend to a point where constraint outweighs benefit?