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.


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?


Void Where Prohibited

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.”

Hear, hear!

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?

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.


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?


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.

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?


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

SINCERITY: Use no hurtful deceit; think innocently and justly, and, if you speak, speak accordingly.
– Franklin

To some extent, many competitive sports rely on subterfuge and deception. Hockey has its deke moves, basketball its pump fakes, boxing its feints, rugby its dummy passes. Baseball, no less than any of these other sports, has it’s share of deceptive practices.

The president of Harvard (and editor of the Harvard Classics) William Eliot once said of the university’s baseball team, “…this year I’m told the team did well because one pitcher had a fine curve ball. I understand that a curve ball is thrown with a deliberate attempt to deceive. Surely this is not an ability we should want to foster at Harvard.” Eliot, however, is in the minority; most people appreciate and applaud a ball player who is especially adept at deception. It is part of the game, as they say.

Another sneaky part of the game is stealing signs. The catcher uses hand signals to communicate with the pitcher, and if an a base runner is able to intercept those signs, he may gain valuable information for his team. And it is generally accepted that there is nothing wrong with stealing signs.

However, a few weeks ago the Boston Red Sox got caught using an Apple Watch to communicate stolen signs, and that burned some people up. It’s fair enough to have a player steal signs from the base paths, but to use video cameras and electronic messaging is something else entirely. For one thing, a catcher may change his signs when an opponent is on base, making the signs themselves part of a game within the game. But what adaptive measures could the catcher use against video cameras and wireless messaging? It takes an aspect of the game away from the players and puts it in the hands of nameless support staff. For another thing, it converts a relatively rare advantage into a constant. Traditional sign stealing only happens when a runner is on second base, but the use of video makes it possible to steal signs on every single pitch.

The line between admirably clever and despicably devious  is not always easy to spot, but when somebody steps well and truly over that line, he draws well deserved ire.


Beer of the week: Oval Beach Blonde – Summer is technically over, but a late heat wave has kept this summer blonde enjoyable. Oval Beach is a beautiful blonde brew from Saugatuck Brewing Company in Michigan. The beer is just a bit tangy, and has a nice malt body. A very refreshing choice.

Reading of the week: The Alexiad by Anna Komnene, Book I, Chapters X & XI – As in sport, military leaders are often praised for deception, but only up to a point. A well laid ambush is considered laudable, but if the ambush is baited with a false truce, it is considered villainous. This excerpt describes some of the acts of Robert Guiscard. Anna Komnene clearly thinks that Robert overstepped the bounds of decency, but history knows him as “Robert the Resourceful”.

Question for the week: Is there really a fair distinction between clever deception and devious deception? Or is all deception equally admirable/reprehensible? (Kant may suggest an answer.)


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

FRUGALITY: Make no expense but to do good to others or yourself; i. e., waste nothing.
– Franklin

“Every excellency, and every virtue,” writes Lord Chesterfield, “has its kindred vice or weakness; and if carried beyond certain bounds, sinks into one or the other. Generosity often runs into profusion, economy into avarice, . . . and so on.” Frugality (thrift, economy, etc.) is one of those virtues that seems most likely to slip into its kindred vice, parsimony (niggardliness, avarice, etc.) So how can one be careful without being cheap?

Thomas Hobbes would advise prioritizing frugality below ambition. “Frugality,” he writes in Leviathan, “though in poor men a virtue, maketh a man unapt to achieve such actions as require the strength of many men at once; for it weakeneth their endeavour, which is to be nourished and kept in vigour by reward.” To the extent that one’s frugality impedes one’s ambition, the ambition ought to be preferred because our happiness depends on our ability to continually advance.

Of course, this advice is qualified. For one thing, Hobbes concedes that people of limited means ought to practice frugality. It is not totally clear how Hobbes would define “poor men”, but it seems likely that the bulk of humanity falls into that class for purposes of his Leviathan. That particular section of the book starts with an explanation that felicity can only be obtained through constantly fulfilling an ceaseless series of desires. Aside from those at the very top of society, it seems unlikely that many have the resources to properly pursue that “perpetual and restless desire of power after power, that ceaseth only in death.”

Still, even poor folk ought to weigh their goals and aspirations when deciding how to spend their money. Even when money is tight, there are some desires that are “worth it.” Those desires or goals that are likely to lead to long term gain (or, in Hobbes’s terms, are likely to assure the ability to satisfy future desires) are probably worth investing in, and those that are likely to lead to recurring expense (or diminish the likelihood of achieving future goals) should be pursued only cautiously. For example, a tightfisted farmer who purchases a low-quality, second hand plow is probably not doing himself any favors. He is not being frugal, but cheap. Likewise, a thousand dollars spent on a once-in-a-lifetime trip is probably a better choice than buying a thousand dollar snow-mobile (or any other toy) that will result in future expenses in the forms of storage, maintenance, and fuel. In the words of Francis Bacon, “a man ought warily to begin charges which once begun will continue; but in matters that return not he may be more magnificent.”

Beer of the week: DAB Dark Beer – Budgeting for beer is a balancing act where one must consider not only the price, but also the quantity and quality. For example, a six pack of .5L cans of DAB actually costs less than a sixer of 12 oz. bottles of Bud, but tastes much better. And this is not the first time that I have turned to Dortmunder Actien-Brauerei for relatively good beer on the cheap. For a while as a student in 2007, Dortmunder Hansa was my go-to brew. It came in half-liter bottles, and was a serious value for a reasonably good European lager. This dark lager is pretty good. It pours with plenty of tan foam and a decent bready aroma. It has some of the classic dark malt flavors, including an aftertaste of coffee, but without much of the bitterness that often accompanies dark roasted malt. I am a big fan of dark lagers are generally, and this one is no exception.

Reading of the week: Leviathan by Thomas Hobbes – This excerpt is from a section of Leviathan called Of the Difference of Manners. But Hobbes makes it clear immediately that by “manners” he does not mean “how a man should wash his mouth, or pick his teeth before company, and such other points of the ‘small morals’.” What Hobbes is interested in is how one may live in society despite the fact that our happiness depends on our ability to constantly acquire power, presumably over, or at least to the exclusion of, others.

Question for the week: There are beers that fetch hundreds of dollars per bottle on the secondary market. Is it possible that one of those beers is actually hundreds of times better than a dollar beer? Is that even the right way to analyze the price?

Render unto Caesar EVERYTHING

Once upon a time, a radical preacher inspired a new and rapidly growing religious sect. After the death of the preacher, the sect continued to expand. Eventually, the civil and religious authorities of the region came to perceive the sect as a threat to the established order. Agents were dispatched to suppress the sect, often with violence. One such agent came to infiltrate the sect and rise to a position of leadership. From that position, he was able to effectively rewrite the tenets of the newly formed religion in a way that made it much more amenable to rule by the civil authorities. And eventually, the state not only condoned the sect, but adopted it as the official state religion.

Most of you have already guessed that I did not make this story up. The preacher is Jesus Christ; the sect is Christianity; the State is Rome; and the agent is Saul of Tarsus, later known as St. Paul the Apostle. There is no way to be sure that Saul of Tarsus remained a government agent after his “conversion”, but it certainly makes for a compelling interpretation.

Before the conversion, Saul apparently had the governmental authority to execute and imprison Christians. (Although he asserts that his authority came from the Hebrew religious leaders, it is somewhat incredible that the Roman overlords would simply allow people to run around killing and imprisoning other individuals under the protection of Rome.) After the conversion, Paul became a prolific writer. In fact, his writings comprise the bulk of the New Testament, much more than the words of Jesus himself. And when compared with the teachings of Jesus, Paul’s writings are decidedly more “pro-state”.

While Jesus’ position on secular authority (and social hierarchies generally) are ambiguous at best, Paul is all-in on the authority of civil government. Jesus said “render under Caesar that which is Caesar’s.” At most, this is a bland endorsement of following the law. More likely, when read with the rest of Jesus’ statements about money, this is an indictment of wealth-seeking. “You should not care about having to pay your taxes because you should be concerned with Godly things rather than material things.”

Paul, on the other hand, states explicitly that the emperor has moral authority to rule, and that to disobey the state is to commit a sin against God. Because all power comes from God, every king is an instrument of God’s will. And this position is not limited to good or virtuous kings. Whoever happens to be in charge, be they ever so vile, must be obeyed because they are in power by God’s grace. Grotius explains that for Paul, “the kingly office, even under all circumstances, was appointed by God… [so] regal power would retain its indelible sanctity, though in the hands of an ungodly man.”

That sort of blind obedience is exactly the sort of tenet that a monarchical empire such as Rome would want it’s growing fringe religious group to have. When crimes against the state are punishable by both corporeal and spiritual means, the religion has become a very valuable tool for power.


Beer of the week: Perla Honey – There has got to be some sort of lesson here about “too much of a good thing”.  I think that the components here are good, but in the wrong proportions. It definitely tastes like real honey, and the beer is smooth and seems good, but it is impossible to tell under the sheer quantity of honey. It is like taking a shot of honey. If the sweetness were dialed way down, I think this would be really good.

Reading of the week: On the Law of War and Peace by Hugo Grotius – This excerpt from Grotius’s treatise purports to refute arguments that Christian scripture proscribes war. He relies, predictably, on the writings of St. Paul.

Question for the week: If all kings, no matter how despicable, are ordained by God, it is clearly a sin to rebel. However, if a pretender to the throne is successful in overthrowing the king, he becomes the new king and all of his actions are sanctioned. The lesson appears to be that rebellion is only a sin if it is unsuccessful. Is there any way to salvage Grotius’ (or Paul’s) position on this matter without resulting in an absurdity?