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?
A popular Thanksgiving tradition is to go around the table, listing the things for which those present are thankful. It can be a very powerful exercise to actually compose such a list. Lists create a sense of scale and the cumulative effect of each item listed tends to compound the others.
Take, for example, the catalog of ships in The Iliad. Several pages of that text are dedicated to listing all of the ships, along with the numbers of their fighting men, that came to the Trojan shores. The seemingly ceaseless recital of the Greeks emphasizes the scale of the conflict. During the battles, the narrative follows individuals as they engage in one-on-one combat. And this is why the catalogue of ships is so important. Without that list to establish the scale of the armies, one could be mislead into thinking of the war as a series of encounters between a handful of individuals rather than between mighty hosts. The knowledge that the Greek and Trojan armies are quite large gives a sense of scale to the dramatic face-offs between the individual heroes.
So this Thanksgiving, give some thought to the vast number of the world’s blessings and how that great list gives context to each individual blessing.
Beer of the week: Saranac Pale Ale – Saranac, New York is about 300 miles from the site of the fabled first Thanksgiving. In American terms, that’s rather close enough to count as local. This beer has a solid malt body with just a bit of hops bitterness to back it up. Saranac Pale Ale makes for a really good beer for a casual drink.
Reading for the week: The Fourth Book by François Rabelais, Chapter 4.LIX – Some would argue that there is virtually no way to stay awake through the entire catalogue of ships, especially in the drowsy afterglow a large meal. This list is probably more appropriate for Thanksgiving. Rabelais was a master of writing lists, and this particular excerpt is the menu of the Gastrolaters, a people whose god is the stomach and whose religion is eating.
Question for the holiday: In certain cases, shorter lists arguably indicate greater importance. A short list of experts in a field may indicate a higher level of expertise. A short list of friends may indicate more intense or close friendship than a longer list. Are there certain sorts of blessings for which this is also true?
This is the eleventh in a series on Franklin’s moral improvement plan, the rest of the posts are available here.
CLEANLINESS: Tolerate no uncleanliness in body, cloaths, or habitation.
By Moscow, I did not smell very good. That fact is not surprising. After all, I’d been without a shower since Vladivostok, some 5,752 miles away. Hell, I’d been without warm water all that time. But the fact is, the trans-Siberian railway is primarily for people traveling only a fraction of the line. Doing the long-haul is not for those who are overly scrupulous about cleanliness.
Even on less extreme journeys, travel is usually dirty. This is especially true when it is done right. I don’t mind the tiny handprints on my khakis from the macaques or the rust stains on my jeans from my ill-conceived trip across the Hangang. A certain amount of mess shows that one has been doing something interesting.
Perhaps the unavoidable (and enjoyable) filth of travel is the best argument for maintaining a clean house and observing excellent personal grooming when at home. The true interest of travel is the experience of the new and the different. So for the proverbial dusty trail to be enjoyed properly, it must be made to stand in contrast to the dust-free homestead.
Beer of the week: Zombie Dust – Would that the dust in my house were all Zombie Dust! It took a trip across state lines, a wedding, a slumber party, and a very gracious friend for me to get my hands on this coveted pale ale from 3 Floyds. (There are certainly cleaner and easier ways to get my hands on this beer, but that’d be way less fun.) Zombie Dust pours with a frothy head, and smells strongly of tropical fruit. Mango, pineapple, and citrus assault the nose. The beer is quite hoppy, tingling from the time it touches the tip of the tongue until the bitterness catches just a bit in the back of the throat. But as it warms, caramel notes start to emerge and the yeasty sediment makes itself known. Truly, this is an excellent beer.
Reading of the week: Fellow-Passengers by Robert Louis Stevenson – The Scottish author wrote of paddling across Belgium in a canoe, rambling through the French mountains with a donkey, crossing the oceans by steamer, and ultimately settling in Samoa. This chapter is from his book Across the Plains, in which he details his train travels from New York to California. According to Stevenson, the trains crossing this continent smelled “of pure menagerie, only a little sourer, as from men instead of monkeys.”
Question for the week: Franklin’s advice is to “tolerate no uncleanliness”, but such a stark prohibition seems at odds with the moderation advocated in the rest of his moral precepts. How can we reconcile these ideas, especially given the fact that an obsession with cleanliness is manifestly harmful?
This is the fifth in a series on Franklin’s moral improvement plan, the rest of the posts are available here.
RESOLUTION: Resolve to perform what you ought; perform without fail what you resolve.
Every decision forecloses other decisions. In a way, even the smallest of choices eliminates an infinite series of possible other choices. Every beer consumed is thousands and millions not consumed. (A serious problem when bars have extensive tap lists.)
To be sure, some decisions actually increase our future options. Education, for example, can pave the way to choices that would not have even been available if not for the decision to pursue education in the first place. But even decisions that open up new possibilities are made to the exclusion of others. Going to law school probably means not going to medical school.
So what do we do when faced with this reality? The main character in Kate Chopin’s Regret was forced to face the fact that her other life choices had foreclosed the possibility of having children. And what did she do? “She let her head fall down upon her bended arm, and began to cry. . . . Not softly, as women often do. She cried like a man, with sobs that seemed to tear her very soul.” Others hardly get this far. Long before they have even made a decision, they feel paralyzed. They are unwilling to make any choice for fear of missing out on something better.
The key to overcoming this paralyzing effect is resolution. On must to accept the reality that our current decisions shape our future choices and boldly resolve to make choices that will give us the best chance for success in the future. Once a course of action is taken, it should be pursued with vigor. Half-measures and indifferent efforts mean that the choices made are likely to be ineffectual, but do nothing to prevent other choices from being foreclosed. Rather than being caught in the middle for lack of resolve, one must charge ahead with no more than a passing wonder about what might have been.
Beer of the week: Space Station Middle Finger – This cloudy, orangish beer comes from Three Floyds Brewing. The aroma is initially dominated by pineapple, but eventually yeasty undertones come through. It is a smooth and delicious brew, and one that I don’t regret drinking in the least. (Except for the fact that now it is gone, so I can’t drink it later. Luckily, they are sold by the six-pack.)
Reading for the week: Regret by Kate Chopin – The title of this story is a serious spoiler. A childless, middle-aged woman has to babysit for the neighbors. At any rate, it’s beautifully written and very compelling.
Question for the week: What decision did you make today that will (especially) shape your tomorrow?
In his biography of Charlemagne, Notker the Stammerer relates a story of two “Scotchmen [who] were unrivalled for their skill in sacred and secular learning.” These men would go into the market and call out, “Ho, everyone that desires wisdom, let him draw near and take it at our hands; for it is wisdom that we have for sale.” This claim drew in the crowds and, ultimately, the attention of the emperor.
The twist in the story, however, is that the Scotsmen really had no interest in marketing their learning to make a profit. They had simply come to realize that if they offered to teach for free, nobody would be interested. Because the price tag is the first signal that the market sees, things that are being given away for free or sold cheaply are assumed to have little worth. Likewise, some people put extremely high prices on their products (even if they intend ultimately to sell for a much lower price) in the hopes that the product will appear more desirable.
I was a tangential party to a real life example of how asking price affects perception. One of my side jobs in college was dealing cards for a promotional company that ran poker tournaments as fund-raisers. The tournaments were well organized and quite successful. However, the owner of the business quickly discovered that some prospective clients saw his very reasonable prices and decided that they wanted to go with a more up-scale competitor. His solution was to raise the prices without changing anything about the product. And it worked. New prospective clients assumed that the high price was a good indicator of the product’s high quality. Business actually increased after the price went up, precisely because the price went up. Like Notker’s Scotsmen, the owner of the promotional company learned that sometimes you have to ask for more than you need, just to get people’s attention.
Beer of the week: Modelo Especial – The head on this beer faded so quickly that I couldn’t get a good photo of it before it was gone. Modelo Especial is a clear, gold brew. It has little aroma or flavor to speak of, really. It’d be easy enough to drink a bunch of this stuff at a party Cinco de Mayo fiesta, but otherwise, why bother? And don’t get me started on the price!
Reading of the week: The Life of Charlemagne by Notker the Stammerer, Book I, 1-4 – Charlemagne filled his court with educated men, such as the aforementioned Scotsmen, and had them educate the children of his kingdom. He found that the highborn children did not take to their lessons as well as the commoners. The lesson, again, seems to be that certain assumptions about value need to be carefully scrutinized.
Question of the week: How much does the asking price affect your perception of a product’s value?
Peer pressure is an interesting and familiar phenomenon. It can also be very dangerous, particularly when alcohol is involved. The classic form of peer pressure is “to be one of us, you must do x“. If “x” is drinking, smoking, stealing, etc., this can be very problematic indeed. But peer pressure can also be used to encourage more positive behaviors or to enforce less dubious social mores. (“If you want to be one of us, you have to be respectful.”) So peer pressure is not bad per se.
One particular form of peer pressure that deserves a closer look is when there is a very specific non-peer group used as a counter example. In this sort of peer pressure, the form is “do NOT do x, lest you become one of them.” There remains the implicit pressure to conform to one’s own peer group, but the pressure is compounded by vilifying another group.
The Laws of the Old Testament are full of this sort of admonition. A several acts are proscribed specifically because they are perceived as gentile behaviors. And even when certain things are prohibited for reasons other than to keep the Jews separate from the rest of the world, there is still a hint that being different from the gentiles is the real goal. Moses Maimonides explained that the prohibition on eating pork was for sanitary reasons. Even so, he made a point of bad mouthing the (Christian) French while he was at it. “[W]ere it allowed to eat swine’s flesh, the streets and houses would be more dirty than any cesspool, as may be seen at present in the country of the Franks.” Don’t eat pork, or you will be like the French.
Likewise, in A Counterblaste to Tobacco, King James I of England railed against the use of tobacco, arguing in part that it is unbecoming of Englishmen to take on the habits of “beastly Indians.” For good measure, he even points out that the English disdain the habits of the French and Spanish. If they refuse to adopt the customs of their near neighbors, how much worse is it to imitate New World savages?
Of course, the French were not only on the receiving end of this type of negative peer pressure; they practiced it as well. After invading Egypt, the use of hashish among the French became popular. Napoleon supposedly banned the consumption of hashish, not because of it’s deleterious effects, but because he did not want to see Frenchmen adopting the habits of lower-class Egyptians.
On this side of the Atlantic, the same thing can be observed. In addition to banning tobacco and alcohol, the Mormon prophet Joseph Smith forbade his followers from drinking tea and coffee. One of his supposed revelations from God was that “hot drinks are not for the body or belly.” Frankly, I do not know if the prohibition on tea and coffee was specifically for the purpose of further separating Mormons from the rest of American society. But it is worth noting that something like 90 percent of American adults consume caffeine daily, making it the single most popular drug in the country. If the goal is to separate themselves from the rest of society, a rule against coffee seems like a good starting place.
About a century ago, the Department of Agriculture relied partly on the vilification of the others in advocating the prohibition of cannabis. In a report by R. F. Smith, the Department concluded that, “[t]he sale of the drug [marijuana] is not confined to Mexicans. American soldiers, negroes, prostitutes, pimps, and a criminal class of whites in general are numbered among the users of this weed.”
There you have it, don’t eat pork, lest your cities stink like France. Don’t smoke tobacco, lest you take on the habits of savages. Don’t take hashish, lest you be like lowly Egyptians. Don’t drink beer, wine, coffee, or tea, lest you fall in with non-Mormon Americans. And don’t smoke hemp, lest you be like Mexicans, negros, pimps, and the criminal class in general. You don’t want to be like any of them, do you?
Beer of the week: Dundee English-Style Ale – There may well be legitimate reasons to avoid pork, coffee, tobacco, alcohol, hashish, and cannabis. (Legality and health concerns spring to mind in particular cases.) But the fact that some group of “other” people consume them is not a legitimate reason. So I am going to smoke the occasional shisha (tobacco) and cigar. And drink this beer. Dundee English-Style Ale is a dark brass-colored ale has a foamy white head that leaves good lacing down the glass. The aroma is slightly sour and malty, like sourdough. The body is malty with hints of sour and spice. Overall, very nice beer. Dundee proves to be a good value yet again.
Reading of the week: A Counterblaste to Tobacco by King James I of England – Jeremy Bentham wrote of this pamphlet, “as the circumstances of the times did not afford the same facility of burning tobacco-smokers as for burning Anabaptists, [King James] was forced to content himself with writing a flaming book against it.”
Question of the week: Have you seen peer pressure used for good?