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?
I was not surprised that the recent terrorist attacks in Paris elicited a strong emotional response (at least among people whose facebook posts appear on my feed.) I was surprised, however, that the attacks in Brussels seemed to get far less attention among the same people. The general sense that I get is that the disparity results from the much closer historical and cultural connection between France and the US of A. But I have Belgian friends, and Belgian beer blows French beer out of the water, so I am sending all of my well-wishes in that direction. (Not that my sentiments are worth anything, but that is what I have to give at the moment.)
Whether in Belgium, France, or anywhere else, the occasion of catastrophe on the other side of the world is an interesting opportunity to reflect on our shared humanity. Why do we care if Belgians are bombed? If Frenchmen are shot? If some natural disaster befalls a distant land? Because we are humans, damn it! And so are those people. Do we do anything about it? Well… maybe nothing very helpful. But we at least take note.
Obviously, I am not the first person to ask why we should care about the calamities that befall people we will never meet. Adam Smith pondered the question over two and a half centuries ago in The Theory of Moral Sentiments:
Let us suppose that the great empire of China, with all its myriads of inhabitants, was suddenly swallowed up by an earthquake, and let us consider how a man of humanity in Europe, who had no sort of connexion with that part of the world, would be affected upon receiving intelligence of this dreadful calamity.
He would, I imagine, first of all, express very strongly his sorrow for the misfortune of that unhappy people, he would make many melancholy reflections upon the precariousness of human life, and the vanity of all the labours of man, which could thus be annihilated in a moment. He would too, perhaps, if he was a man of speculation, enter into many reasonings concerning the effects which this disaster might produce upon the commerce of Europe, and the trade and business of the world in general. And when all this fine philosophy was over, when all these humane sentiments had been once fairly expressed, he would pursue his business or his pleasure, take his repose or his diversion, with the same ease and tranquillity, as if no such accident had happened. The most frivolous disaster which could befall himself would occasion a more real disturbance. If he was to lose his little finger to-morrow, he would not sleep to-night; but, provided he never saw them, he will snore with the most profound security over the ruin of a hundred millions of his brethren, and the destruction of that immense multitude seems plainly an object less interesting to him, than this paltry misfortune of his own. To prevent, therefore, this paltry misfortune to himself, would a man of humanity be willing to sacrifice the lives of a hundred millions of his brethren, provided he had never seen them? Human nature startles with horror at the thought, and the world, in its greatest depravity and corruption, never produced such a villain as could be capable of entertaining it. But what makes this difference? When our passive feelings are almost always so sordid and so selfish, how comes it that our active principles should often be so generous and so noble?
The age of the internet has changed this aspect of life but little. Now our expressions of sorrow and our reasonings concerning effects take place online, allowing us to interact with a much wider group of people. Now we have instant access to news about events that, in Smith’s time, may have taken months to reach us. But perhaps most importantly, we can now see what’s happened in photographs and videos, bringing every tragedy closer to home in a way that Smith believed foreign events could never be. This, of course, cuts both ways. The immediate and graphic way in which we are able to perceive these events increases the impact of terrorism. But it also allows us to more readily experience the shared humanity that drives us to care at all.
Beer of the week: Chimay Grande Réserve a.k.a. Chimay Blue – When I visited Belgium a few years ago, I imbibed many excellent beers. Like La Trappe, Chimay produces “Authentic Trappist Ale” inside the walls of a monastery. This, their strong dark ale, is orange-brown with a creamy tan head. The beautiful aroma is sweet and slightly sour. The ale itself is super smooth. The flavor is full, sweet, and delicious with notes of sweet biscuit.
Reading of the week: The Theory of Moral Sentiments by Adam Smith – After the above-quoted section, Smith goes on to discuss the conflict between self-love and humane impulses. He attributes much to what Freud would later call the superego.
Question of the week: What do you do in response to distant catastrophes?
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?