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?
This is the seventh in a series on Franklin’s moral improvement plan, the rest of the posts are available here.
INDUSTRY: Lose no time; be always employ’d in something useful; cut off all unnecessary actions.
It is often discouraging to observe how much work has yet to be done. There are papers to write, dishes to wash, bridges to build. And the sheer quantity of work that will remain undone at the end of each day can make one despair of every really making a difference. This pessimism must be combated.
According to Helen Keller, Charles Darwin’s ill-health made it impossible for him to write for any more than half of an hour at a time; “yet in many diligent half-hours he laid anew the foundations of philosophy.” In fact, it seems that Keller vastly undersells Darwin’s illness. According to Wikipedia, “Darwin suffered intermittently from various combinations of symptoms such as: malaise, vertigo, dizziness, muscle spasms and tremors, vomiting, cramps and colics, bloating and nocturnal intestinal gas, headaches, alterations of vision, severe tiredness, nervous exhaustion, dyspnea, skin problems such as blisters all over the scalp and eczema, crying, anxiety, sensation of impending death and loss of consciousness, fainting tachycardia, insomnia, tinnitus, and depression.” Chronic vomiting is bad enough, but to have to find the puke bucket a bucket with blurred vision and vertigo must be a special kind of hellish. Yet somewhere between the cramps and sensation of impending death, Darwin was still able to change the world.
Helen Keller herself was no slouch in the overcoming adversity department. Unable to see or hear, she still learned to read, write, and speak(!) several languages. She also became a noted political advocate and lecturer. But international fame was not her primary ambition. “I long to accomplish a great and noble task;” she writes, “but it is my chief duty and joy to accomplish humble tasks as though they were great and noble. It is my service to think how I can best fulfill the demands that each day makes upon me, and to rejoice that others can do what I cannot.”
So when the mountain of work seems unclimbable, follow Franklin’s advice and waste as little time as possible. Remember Darwin and let nothing, even yourself, prevent you from achieving your goals. Be like Keller and take pride in even the most humble tasks. And heed the exhortation of Thomas Carlyle:
“Whatsoever thy hand findeth to do, do it with thy whole might. Work while it is called To-day; for the Night cometh, wherein no man can work.”
Beer of the week: Sublime Ginger – This hazy, straw-colored offering from Forbidden Root is really good. The base is a dry wheat beer, with ginger, key lime, and botanicals. And those additions all make themselves known. The aroma is dominated by the ginger and citrus. The flavor is bright and limey. The ginger and herbs are also in the flavor, but without as much bite as one might expect. Overall, a nice refreshing drink.
Reading of the week: Optimism by Helen Keller, Part I – Keller’s optimism must be among the most sincere examples in history. For seven years, she lived in a totally isolated world of darkness and silence. Then she learned language, and the inertia of that “first leap out of the darkness” carried her forward for the rest of her life.
Question for the week: Recreation and relaxation are productive to a point; they improve our state of mind and reinvigorate our bodies and souls for the tasks ahead. But is there any clear line between relaxation and idleness?
This is the second in a series of posts on skepticism (and Goose Island beers.) The other posts can be found here.
For those who cannot view the video above, it goes something like this:
A baseball bat flies through the air toward a flower vase. A bowling ball rolls toward a wine glass. A brick is hurled at a light bulb. A hammer flips end over end in the direction of an egg. And then: destruction. The bat splinters to pieces. The bowling ball bursts. The brick crumbles. The hammer head shatters.
These images are a bit jarring because they are inconsistent with our expectations. We expect the vase, the glass, the light bulb, and the egg to shatter. But why?
According to David Hume, our expectations related to cause and effect are the product of experience, not reason. If we had no experience with eggs and hammers, or wine glasses and bowling balls, we could not have reasoned out what we expect to happen when they collide. Even if we had no experience with bowling balls, but we were to analogize to some object more familiar, we would still only be anticipating the result based on experience rather than pure reason. “The mind can never possibly find the effect in the supposed cause, by the most accurate scrutiny and examination. For the effect is totally different from the cause, and consequently can never be discovered in it.”
Because effects cannot be reasoned from causes, we can never discover the first cause. As we work our way backward from effect to supposed cause to the supposed cause of that cause, we quickly find that we have inadequate experience to make any sort of guess about what the ultimate causes of our world are. By means of experimentation and observation, we may gain the required experience to make ever greater connections, but “as to the causes of these general causes, we should in vain attempt their discovery; nor shall we ever be able to satisfy ourselves, by any particular explication of them. These ultimate springs and principles are totally shut up from human curiosity and enquiry. Elasticity, gravity, cohesion of parts, communication of motion by impulse; these are probably the ultimate causes and principles which we shall ever discover in nature; and we may esteem ourselves sufficiently happy if, by accurate enquiry and reasoning, we can trace up the particular phenomena to, or near to, these general principles.”
Beer of the week: 312 Urban Wheat – The name 312 is derived from the telephone area code for Chicago. As the label says, it is a wheat ale that is hazy straw colored and has a light lemon aroma. I think that the citrus in the smell is very light, but it is present. 312 is a fine beer, particularly as a change of pace stylistically. It is not as fruity or spiced as a hefeweizen, but is more like a standard pale ale with a bit of wheat.
Readings of the week: Sceptical Doubts concerning the Operations of the Understanding, Part I by David Hume – This section from An Enquiry Concerning Human Understanding presents the problem of inductive reasoning. Because we learn only by experience, and our experience is wholly inadequate to cover all of the infinite possibilities of our world, it is probably best to withhold judgment.
Question for the week: The sun has risen every day for my entire life. And, so far as I can tell, it rose every recorded day before that. So we feel certain that the sun will rise tomorrow. Is this application of inductive reasoning really questionable?
A friend of mine once told me that his favorite Bible verse was from Chapter 6 of the Book of Job:
“Oh that my grief were throughly weighed, and my calamity laid in the balances together!
For now it would be heavier than the sand of the sea: therefore my words are swallowed up. For the arrows of the Almighty are within me, the poison whereof drinketh up my spirit: the terrors of God do set themselves in array against me.”
What he liked about this verse is that it helped put his own troubles into perspective. The calamities that befell Job were so great that it makes our own pale in comparison.
A similar philosophy was espoused by Lucretius in On the Nature of Things when he stated that it is pleasant to watch a shipwreck from the safety of the shore. There is no misanthropic impulse behind that statement, just the recognition that people are subject to all sorts of misfortune and that we are fortunate when we are not getting the worst of it.
Polybius went even further. According to him, “the only method of learning how to bear bravely the vicissitudes of fortune, is to recall the calamities of others.” Is it really the only method? This seems like a step to far. Religion and stoicism spring to mind as two possible ways to learn how to cope with disaster that may not require looking to examples of unfortunate others. To be sure, both of them rely on examples to some extent (e.g. Job, the saints, Socrates, etc.) But I am not sure that they need them to be effective.
Beer of the week: Blue Moon Rounder – My past experience with Blue Moon didn’t prevent me from trying this beer. Perhaps it should have. This Belgian-style pale ale is not much to write home about. The photo shows how clear this beer is. This is a bit surprising since there actually is some wheat in the recipe. The smell is fairly bland and grainy. It tastes primarily of malt, but there is just a hint of spice in the finish. The name comes from the idea that one could drink several rounds of this beer. I suppose that this would be a fine beer to drink a half-dozen of in a sitting. There is something to be said for that.
Reading of the week: The Histories by Polybius – At the very beginning of his greatest work, Polybius announces that he does not need to commend the study of history because “all historians, one may say without exception, and in no half-hearted manner… have impressed on us that the soundest education and training for a life of active politics is the study of History.”
Question of the week: Is there any other method for learning to face disaster than to look to the examples of others?
The question “why do bad things happen to good people?” is a classic of philosophy and theology. But rather than address that question head on, perhaps it is better to pursue a more practical inquiry. Once we accept the premise that “bad things happen to good people”, the practical question is “how should one deal with bad things happening?”
Obviously, there is no shortage of literature and philosophy that could shed light on this question. The Book of Job, Augustine’s Confessions, Epictetus’s Handbook all spring to mind, and those are just among the writings that have already been featured here. But time is short and my beer is getting warm, so I’ll limit myself to three examples of how calamity may be met:
When the title character of Robinson Crusoe found himself stranded on a desert island his reaction seems somewhat undignified. He relates:
“After I had got to shore and escaped drowning, instead of being thankful to God for my deliverance, having first vomited, with the great quantity of saltwater which had got into my stomach, and recovering myself a little, I ran about the shore wringing my hands and beating my head and face, exclaiming at my misery, and crying out, ‘I was undone, undone!’ till, tired and faint, I was forced to lie down on the ground to repose, but durst not sleep for fear of being devoured.”
But eventually, Crusoe was able to turn his mind and energies toward practical work. He collected necessary goods from among the shipwreck, including books, paper, and ink. He also set about constructing a habitation complete with shelves and furniture. Only after he had taken care of the immediate bodily concerns of his predicament could he turn to contemplation and religion. It looks like dedicating one’s energy to the labor of surviving is the key to bridging the gap between despair and contemplation. One can’t properly reflect while still in a panic, so Crusoe must settle himself down by establishing his settlement.
But what happens when there is no labor to be performed? What if all work is already accomplished or if all work is futile? This is the condition of Boethius in his Consolation of Philosophy. Boethius was imprisoned by Theodoric the Great on a charge of treason. Realizing that his situation was inexorable, he fell to weeping. Like Crusoe, Boethius was initially consumed by despair. But unlike Crusoe, Boethius had no practical labor to turn his mind from his grief. But he did have a pen and ink. Even without the bridge of practical work, Boethius was able to direct his mind to philosophy. In a prison cell, sure that he would lose his life shortly, he produced what proved to be one of the most influential philosophical works the in world. Boethius was able to move directly from despair to contemplation, without needing some labor to take his mind off of his predicament.
And finally, for those who have neither the practical skills of Crusoe, nor the intellectual powers of Boethius, one can always take the Baudelaire approach to dealing with the inevitable calamities of life: Get Drunk.
Beer of the week: Staropramen Unfiltered (Nefiltrovaný) – This unfiltered wheat beer is quite a treat. Unlike many wheat beers, this one has a strong aroma of floral hops. The beer itself is very cloudy and the remaining yeast provides some extra texture and spice. Although it is sweet, with hints of fruit, the hops and coriander provide a finish that really balances the sweetness.
Reading for the week: The Consolation of Philosophy by Boethius, Book I, Sections 2 &3 – Last week’s claim that Chaucer was a profound thinker is somewhat bolstered by the fact that Chaucer translated The Consolation of Philosophy from Latin. It was, in Chaucer’s day, perhaps the single most popular philosophical work.
Question for the week: What do you do when bad things happen?
“It must be great to be able to do things—artistic things, I mean, like composing.”
This sentiment, although not in my own words, is one that I’ve expressed time and again. What must it feel like to have some discernible artistic talent? To be able to reach out to others through a medium – be it paint or music or computer code – and communicate something on a level higher (or lower?) than the “merely” rational?
Art, like most things, appears to be cyclical. This blog started five years ago tomorrow, and we are right back to where we started. What is art? To quote Oscar Wilde (again), “art is quite useless.” So this blog might be art after all.
Beer of the week: Gumballhead – The folks over at Three Floyds Brewing are certainly artists, and Gumballhead is their delightful wheat ale. It is a pretty, hazy, golden brew. The smell is dominated by aromatic hops. The body of the beer is very light and smooth. Overall, this is a really delicious beer. Like, really good.
Reading of the week: The Man Upstairs by P.G. Wodehouse – If such an impossible decision had to be made, I might conclude that Wodehouse is my very favorite author. Much of his writing is uproariously funny, and all of it is sharp. And all without being lewd or crude. (Not that I object to scatological or sexual humor, but the fact that Wodehouse can get along so well without it is very impressive.) This short story of a young composer and the painters who have studios in the same building reminds me somewhat of the work of Roald Dahl.
Question of the week: What is art, anyway?
It is no secret that the philosophy of John Locke was a profound influence on the American Founding Fathers. After all, his concept of natural rights to life, liberty, and property was prominently displayed at the beginning of the Declaration of Independence. But there was also a dramatic change in that document’s language: “property” was replaced with the “pursuit of happiness.”
First, let’s be clear on what Locke actually said: “The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.” How “health” got dropped from popular discourse, I do not know. I suspect that health can easily be subsumed by life, liberty, or both. Health is an integral part of life since an ultimate failure of health results in death. It is also an integral part of liberty, since any failure of health impairs liberty to some extent and a serious failure of health (just short of death) totally prevents one from exercising his liberty. (Those in a coma, for example, can hardly be considered “free”.) So, with health out of the way, we are left with the common formulation of Locke’s natural rights: life, liberty, property.
But when it came time to draft the Declaration, Thomas Jefferson substituted “the pursuit of happiness” for “property.” But why? I have done a little reading and asked a few professors, and gotten three answers:
1. That Jefferson, a land-owner, was appealing also to those who did not own land. Since he did not advocate a system where all men got an equal share of the land, he substituted the pursuit of happiness as something that everybody could achieve (even those destined to be tenants.)
This answer seems least likely to me. Of course the Declaration was a practical document, intended to rally support for the cause of independence, but it was also an exposition of Jefferson’s philosophy. Would he really substitute an entire third of his philosophy of natural rights for a relatively minor appeal to the lower class colonists? I am extremely reluctant to consider anything in the first part of the Declaration to be disingenuous. (Whether all of the complaints leveled at King George were all made in good faith is another question.)
Further, under Locke’s formulation, the right to property relies on the assumption that there is enough property to support everybody. The American continent was regarded as practically limitless in size at that time. Why would Jefferson object to the idea that anybody who did not then own land could just move west and acquire property by mingling his labor with the land? And if he did believe that, then why not present that as yet another reason why even landless Americans should support the cause of independence?
2. That the right to property is merely a subset of the right to pursue happiness.
What could that really mean? Even if we allow that acquisition and possession of property is but a single possible path to happiness, what else falls in that category? What else is included in the right to pursue happiness that is not already included in liberty? And how are these other subsets of the right to pursue happiness related to the right to property?
I have heard that the pursuit of happiness can be divided into pursuit of earthly happiness (i.e. through the acquisition of property,) or heavenly happiness. This makes this language a nod to freedom of religion.
It is worth noting that later in 1776, but also in Philadelphia, another important document was drafted: the first Constitution of Pennsylvania. In its Declaration of Rights, the drafters asserted “That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Here, the pursuit of happiness is separate from the right to acquire, possess and protect property. It appears that at least the Pennsylvanian Founders did not consider property rights to be a mere subset of the pursuit of happiness. Religious freedom was also provided for by the Constitution of Pennsylvania, undermining the earthly/heavenly distinction suggested above. If property and religion are the two parts of the pursuit of happiness, why name all three separately?
3. That Jefferson did not believe that property rights were natural rights; that property rights are derived entirely from society.
This is a very interesting answer to the question of why property is replaced by the pursuit of happiness. I first saw this hypothesis in an article by Albert Alschuler of the University of Chicago. Alschuler claims that Jefferson’s departure from Locke on the point of property is the result of Jefferson siding with Scottish Enlightenment thinkers (including Lord Kames, Francis Hutcheson, Adam Ferguson, Adam Smith, and David Hume) on the issue. The Scots apparently diverged from Locke on the question of whether property rights were natural or wholly societal in origin.
Of course, this could explain why the right to property is not listed in the Declaration, but it does not explain what the pursuit of happiness is. I’d better do some more reading and have a beer…
Beer of the week: Philadelphia Pale Ale – From the same city that brought us the Declaration of Independence, the Pennsylvania Constitution, and the United States Constitution comes this pale ale. Yards Brewing Company produces this very light-colored beer. It is very crisp and refreshing despite a decent malt body. Although it is an ale, it drinks more like a pilsner. I think that this beer is quite good.
Reading of the week: Pennsylvania Constitution of 1776, Declaration of Rights – The rights to life, liberty, and property are accounted for by this document, but there are a great number of more particular rights besides. Among the rights provided for are procedural protections for criminal defendants, freedom of speech, freedom of religion, and the right of the people to modify or abolish the State government if they deem it best to do so. And, since the state was founded by Quaker pacifists, the right of a conscientious objector to refuse military duty is also guaranteed (provided he pays for a replacement).
Question of the week: What is the pursuit of happiness?