Certainty of the Law

In the closing paragraphs of the third chapter which I covered in my previous post, Leoni concentrates on the last aspect of Hayek’s theory of the “rule of law” – “certainty.” Before doing that however, he writes about why Dicey considered “the exercise of the rights of the individual under the English constitution [to be] more certain than the exercise of similar rights under Continental constitutions.” The reason Dicey gave was the skill of the English “in contriving remedies connected with these rights.” Though Dicey thought that the difference between the unwritten English constitution and the written one of France was merely formal, he noted how they varied in practice.

[G]reat practical differences had been revealed by historical evidence relating, for instance to the French Constitution of 1791, which proclaimed a series of rights, while “there never was a period in the recorded annals of mankind when each and all of these rights were so insecure, one might almost say completely nonexistent, as at the height of the French Revolution.”

What does “certainty of the law” refer to, Leoni asks? As far as Hayek is concerned certainty is important because it has “contributed much to the greater prosperity of the Western world as compared with the Orient, where the certainty of the law was not so early achieved.” But, according to Leoni, neither Hayek nor Dicey analyzed the concept very deeply. For many scholars, certainty is all about written rules. But neither the English common law nor the constitution is written. Leoni says, this clamor for law in the “written” form arises from the increasing use of statutes—statutory law.

General regulations laid down in due time and made known to all citizens make it possible for them to foresee what will happen on the legal stage as a consequence of their behavior, or, to use the words of Professor Hayek: “as a general rule, circumstances which are beyond his [the individual's] field of vision must not be made a ground for his coercion.”

Leoni notes the Greek origin of this idea of certainty—written law known in advance. And this spread across Europe.

In brief, the Continental idea of the certainty of the law was equivalent to the idea of a precisely worded, written formula. This idea of certainty was to a great extent conceived as precision.

But is this meaning the one which is included in the English “rule of law”? He then says that certainty of this kind isn’t very helpful.

We can set aside for the moment the questions arising from the fact that rules may be perfectly “certain” in the sense we have described, that is to say, precisely formulated, and be at the same time so tyrannical that nobody can be said to be “free” by behaving according to them. But there is another inconvenience that also results from adopting such general written laws, even when they do allow us considerable “freedom” in our individual behavior. The usual process of law-making in such cases is by way of legislation. But the legislative process is not something that happens once and for all. It takes place every day and is continually going on.

[...]

All these rules are precisely worded in written formulae that readers or interpreters cannot change at their will. Nevertheless, all of them may go as soon and as abruptly as they came. The result is that, if we leave out of the picture the ambiguities of the text, we are always “certain” as far as the literal content of each rule is concerned at any given moment, but we are never certain that tomorrow we shall still have the rules we have today.

This is “the certainty of the law” in the Greek or Continental sense.

The Greeks might have produced great philosophers but their idea of “certainty” is quite unhelpful. There is, though, another civilization which was known for its laws. And their conception of “certainty” is what is built into the English “rule of law.” Rome.

—

The above idea of “certainty,” Leoni writes in the next chapter—-”Freedom and the Certainty of the Law”— could be called “the short-run certainty of the law.” The Romans, however, viewed “certainty” differently. Its not that they did not have statutory law. They did, in the form of constitutional, administrative and criminal law. But very rarely did this intrude into the private domain. Leoni writes-

This meant that whenever a difference arose between Roman citizens about their rights or their duties according to a contract, for example, they could rarely base their claims on a statute, on a written rule precisely worded, and therefore certain in the Greek or short-run sense of the word. Thus, one of the most eminent among contemporary historians of Roman legal science and law, Professor Fritz Schulz, has pointed out that certainty (in the short-run sense) was unknown to the Roman civil law. This does not mean at all that the Romans were not in a position to make plans about the future legal consequences of their actions. Everybody knows the enormous development of the’ Roman economy, and it is hardly necessary to refer here to the imposing work of Rostovtzeff on this subject.

On the other hand, it is well known to all students of Roman private law that, as Professor Schulz says, “the individualism of Hellenistic liberalism caused the private law to be developed on a basis of freedom and individualism.” As a matter of fact, most of our contemporary Continental codes, such as the French, the German, and the Italian, were written according to the rules of the Roman law recorded in Justinian’s Corpus Juris. They have been labeled as “bourgeois” by some socialist reformers. So-called social “reforms” in European countries today can be brought about, if at all, only by modifying or canceling rules that very often go back to those of ancient Roman private law.

Thus, the Romans had a law sufficiently certain to enable citizens freely and confidently to make plans for the future, and this without being a written law at all, that is, without being a series of precisely worded rules comparable to those of a written statute. The Roman jurist was a sort of scientist: the objects of his research were the solutions to cases that citizens submitted to him for study, just as industrialists might today submit to a physicist or to an engineer a technical problem concerning their plants or their production. Hence, private Roman law was something to be described or to be discovered, not something to be enacted—a world of things that were there, forming part of the common heritage of all Roman citizens. Nobody enacted that law; nobody could change it by any exercise of his personal will. This did not mean absence of change, but it certainly meant that nobody went to bed at night making his plans on the basis of a present rule only to get up the next morning and find that the rule had been overturned by a legislative innovation.

The Romans accepted and applied a concept of the certainty of the law that could be described as meaning that the law was never to be subjected to sudden and unpredictable changes. Moreover, the law was never to be submitted, as a rule, to the arbitrary will or to the arbitrary power of any legislative assembly or of any one person, including senators or other prominent magistrates of the state. This is the long-run concept, or, if you prefer, the Roman concept, of the certainty of the law.

“To a certain extent, [this concept] put juridical relations among citizens on a plane very similar to that on which the free market put their economic relations,” he writes. He then tackles an objection which says that because the Roman legal system was derived from the Roman constitution, all private law was indirectly statutory law subject to the whims of the majority, or the powerful, in some way or the other. Not the case, he says. When a dictator, Sulla, enacted a statute that deprived the inhabitants of certain cities of their Roman citizenship, Cicero fought and won a case that overthrew the statute. Leoni writes-

The law enacted by Sulla was a statute formally approved by the people, of the type the Romans used to call a lex rogata) that is, a statute whose approval had been requested and obtained from a popular assembly by an elected magistrate by due process of law. We are told by Cicero, in this connection, that all bills to be made into statute law used to contain, from very ancient times, a clause the meaning of which, although not completely understandable in a later age, obviously related to the possibility that the content of the bill, if it became a statute, might not be legal: “Si quid jus non esset rogarier, eius ea lege nihilum rogatum” (”if there is in this bill whose approval I am requesting of you,” said the magistrate to the legislative assembly of the Roman people, “anything that is not legal, your approval of it is to be considered as not requested”).

This seems to prove that there were statutes that could be contrary to law and that statutes like those depriving citizens of their freedom or of their citizenship were not considered as legal by Roman courts.

If Cicero is correct, we may conclude that Roman law was limited by a concept of legitimacy strikingly similar to that set forth by Dicey in regard to the English “rule of law.”

The most important thing to note is that “law” is not “made,” it has to be “discovered” by applying reason to a problem. That is the essence of natural law. It is objective in nature, and open to reason. That is what common law is all about. On the attack on common law, the process of discovery as well as personal biases rendering the “objective” subjective, and therefore no different than legislation, he does not deny the possibility. He writes-

My point is merely that courts of judicature could not easily enact arbitrary rules of their own in England, as they were never in a position to do so directly, that is to say, in the usual, sudden, widely ranging and imperious manner of legislators. Moreover, there were so many courts of justice in England and they were so jealous of one another that even the famous principle of the binding precedent was not openly recognized as valid by them until comparatively recent times. Besides, they could never decide anything that had not been previously brought before them by private persons. Finally, comparatively few people used to go before the courts to ask from them the rules deciding their cases. As a result, judges were more in the position of spectators than of actors in the law-making process, and, moreover, of spectators not allowed to see all the things that happen on the stage. Private citizens were on the stage; common law was chiefly just what they commonly thought of as being law.

[...]

The increasing importance of the legislative process in the present age has inevitably obscured, both on the European Continent and in the English-speaking countries, the fact that law is simply a complex of rules relating to the behavior of the common people. There is no reason to consider these rules of behavior much different from other rules of behavior in which interference on the part of political power has been only exceptionally, if ever, exercised.

[...]

We have become increasingly accustomed to considering law-making as a matter that concerns the legislative assemblies rather than ordinary men in the street and, besides, as something that can be done according to the personal ideas of certain individuals provided that they are in an official position to do so. The fact that the process of law-making is, or was, essentially a private affair concerning millions of people throughout dozens of generations and stretching across several centuries goes almost unnoticed today even among the educated elite.

It is said that the Romans had little taste for historical and sociological considerations. But they did have a perfectly clear view of the fact I have just mentioned. For instance, according to Cicero, Cato the Censor, the champion of the traditional Roman way of life against the foreign (that is, Greek) importation, used to say that

the reason why our political system was superior to those of all other countries was this: the political systems of other countries had been created by introducing laws and institutions according to the personal advice of particular individuals like Minos in Crete and Lycurgus in Sparta, while at Athens, where the political system had been changed several. times, there were many such persons, like Theseus, Draco, Solon, Cleisthenes, and several others. … Our state, on the contrary,is not due to the personal creation of one man, but of very many; it has not been founded during the lifetime of any particular individual, but through a series of centuries and generations. For he said that there never was in the world a man so clever as to foresee everything and that even if we could concentrate all brains into the head of one man, it would be impossible for him to provide for everything at one time without having the experience that comes from practice through a long period of history.

Leoni then makes a very interesting point. von Mises had proved that any economy that followed socialism- full socialism, with state ownership of the means of production – would not be able to function properly because capital goods weren’t priced. But this fact, he says, is just a corollary of the fact that central authorities will always lack knowledge of what goes on at the lowest levels.

Even those economists who have most brilliantly defended the free market against the interference of the authorities have usually neglected the parallel consideration that no free market is really compatible with a law-making process centralized by the authorities. This leads some of these economists to accept an idea of the certainty of the law, that is, of precisely worded rules such as those of written law, which is compatible neither with that of a free market nor, in the last analysis, with that of freedom understood as the absence of constraint exercised by other people, including the authorities, over the private life and business of each individual.

[...]

If one seeks historical confirmation of the strict connection between the free market and the free law-making process, it is sufficient to consider that the free market was at its height in the English-speaking countries when the common law was practically the only law of the land relating to private life and business. On the other hand, such phenomena as the present acts of governmental interference with the market are always connected with an increase in statutory law and with what has been called in England the “officialization” of judiciary powers, as contemporary history proves beyond doubt.

If we admit that individual freedom in business, that is, the free market, is one of the essential features of political freedom conceived of as the absence of constraint exercised by other people, including the authorities, we must also conclude that legislation in matters of private law is fundamentally incompatible with individual freedom in the above-mentioned sense.

Thus, if we want certainty in the “rule of law,” it is long-run certainty which we must aim for.

Rule of Law, and Supremacy of the Law

Roscoe Pound, in the preface to his “An Introduction to the Philosophy of Law,” notes that this subject cannot be tackled with ease by either a philosopher or a jurist, and that one needs to have mastery over both philosophy as well as law. If a pure philosopher attempts the task, he would have to rely on the work of jurists and the outcome would be clouded by the philosophical biases of those jurists. If a lawyer attempts the same, the “results of common-law incursions into philosophy would resemble the effort of the editorial writer who wrote upon Chinese metaphysics after reading in the Encyclopedia Britannica under China and metaphysics and combining his information.” I don’t know where Leoni stands when it comes to this criteria, but given his insistence on “negative liberty,” his stand on “free markets” and his knowledge of law—theory and history, I don’t think he disappoints.

The last two posts on this subject covered chapters one and two of his book. This post is on chapter three – “Freedom and the Rule of Law.”

—

“It is not easy to state what English-speaking people mean by the expression ‘the rule of law’,” Leoni writes, and then says that the meaning of the term is subject to semantic confusion in the same manner as the term “freedom.” He then considers legal scholar Dicey’s analysis of the “rule of law” and notes than “supremacy of the law” is its chief characteristic.

[Dicey] quoted the old law of the English courts: … (”the law is the highest estate to which the king succeeds, for both he and all his subjects are ruled by it, and without it there would be neither king nor realm”). According to Dicey, the supremacy of the law was, in its turn, a principle that corresponded to three other concepts and therefore implied three different and concomitant meanings of the phrase “the rule of law”: (1) the absence of arbitrary power on the part of the government to punish citizens or to commit acts against life or property; (2) the subjection of every man, whatever his rank or condition, to the ordinary law of the realm and to the jurisdiction of the ordinary tribunals; and (3) a predominance of the legal spirit in English institutions, because of which, as Dicey explains, “the general principles of the English constitution (as, for example, the right to personal liberty or the right to public assembly) are the result of judicial decisions …. ; whereas under many foreign constitutions the security given to the rights of individuals results or appears to result from the general (abstract) principles of the constitution.”

He then compares this with Hayek’s theory of what “rule of law” is-

According to Professor Hayek, the generality, the equality, and the certainty of the law, as well as the fact that administrative discretion in coercive action, i.e., in interfering with the person and the property of the private citizen, must always be subject to review by independent courts, are “really the crux of the matter, the decisive point on which it depends whether the Rule of Law prevails or not.”

Leoni says Hayek’s features and those of Dicey are in broad agreement. While exploring the concept of “equality before the law,” he talks about the French droit administratif—administrative law. Apparently they had/ have a different law administered by different courts to deal with disputes between ordinary citizens and state officials, bureaucrats and the like. Dicey had written that this proved that the French officials, “when litigating in their official capacity with ordinary citizens, were ‘to some extent exempted from the ordinary law of the land.’” Leoni writes-

The fact is that the conseil d’etat provides ordinary citizens in France as well as in most countries of Western Europe with a fairly unbiased and efficient protection against what Shakespeare would have called “the insolence of office.”

For Dicey, equality means there must be one law applicable to everyone—no exceptions. Hayek doesn’t have a problem with two separate laws—common law, and administrative law. The benefits of having an administrative law are clear. We might say that all are equal in the eyes of law, but the State, and its apparatus, is in some way, superior to ordinary citizens. It has powers that citizens don’t. And unless common law is implemented in such a way that courts do not defer to the executive—the State—and are independent of it, the State invariably becomes a judge in a case involving itself. Which is ridiculous. Further, one should note the warning issued by Lord Acton-

I cannot accept your canon that we are to judge Pope and King unlike other men, with a favorable presumption that they did not wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. All power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority.

Though he understand pretty well the problem involved, Leoni is not comfortable with the “two laws” idea. He says-

Dicey cannot be justly criticized for his condemnation of administrative tribunals on the basis of a principle he has so clearly enunciated, viz., the universal subjection of all classes to one law. Otherwise we ought to conclude that while all men are equal before the law, some men are “more equal than others.”

In fact, we now know how far the interpretation of the principle of equality before the law can go in political systems in which the principle of the purely formal—nay, of the ceremonial—legality of any rule whatever, regardless of its content, has been substituted for the principle of the Rechtsstaat and, correspondingly, of “the rule of law” in its early meaning.

We can form as many categories of people as we want in order to apply the same laws to them. Within each category people will all be “equal” before the particular law that applies to them, regardless of the fact that other people, grouped in other categories, will be treated quite differently by other laws. Thus, we can create an “administrative law” before which all people grouped in a certain category defined in the law will be treated in the same way by administrative tribunals, and side by side with it we can recognize a “common law” under which people, grouped in other categories, will be no less equally treated by the ordinary courts. Thus, by a slight change in the meaning of the principle of “equality,” we can pretend to have preserved it. Instead of “equality before the law,” all that we shall have will then be equality before each of the two systems of law enacted in the same country, or, if we want to use the language of the Dicean formula, we shall have two laws of the land instead of one. Of course, we can, in the same way, have three or four or thousands of laws of the land—one for landlords, one for tenants, one for employers, one for employees, etc. This is exactly what is happening today in many Western countries where lip service is still paid to the principle of “the rule of law” and hence of “equality before the law.”

The idea of “equality before the law” cannot be sacrificed to expediency.

—

There is a pernicious legal theory which states that all rights emerge from the State—no State, no rights. Legal positivism. It is a sibling of logical positivism. The question of who has the right to “make” laws is the subject matter of another chapter, and therefore another post. But I would like to quote what Dicey said about the “legal spirit” in England-

If it be allowable to apply the formulae of logic to questions of law, the difference in this matter between the constitution of Belgium and the English constitution may be described by the statement that in Belgium individual rights are deductions drawn from the principles of the constitution, whilst in England the so-called principles of the constitution are inductions or generalizations based upon particular decisions pronounced by the courts as to the rights of given individuals.

In sharp contrast lies the position in nearly every other country, including the United States, where no matter what the constitution says its founding principle is, rights are presumed to emanate from it. After Oliver Wendell Holmes’ hatchet job (via Reason) in 1905, in practice, the US Constitution is nothing more than a worthless piece of paper. He said about a case where he dissented-

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics…Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

So, “law” is what the majority says it is. Since rights emanate from the constitution, and the constitution is a blank slate on which anyone can scribble anything, rights don’t exist.

—

The discussion then moves on to what is meant by “certainty.” Since this is then continued in the next chapter, I will tackle them together in the next post.

Does it matter?

Churumuri links to an article by historian Ramachandra Guha entitled “The Chancellors’ Vice.” Guha writes-

Some months ago, a news item in the Bangalore edition of a national paper carried this headline, “Three shortlisted for Mysore varsity post”. Since I am a former academic, and have known many past graduates and teachers of Mysore University, I read on further. The report continued to say that “finally, the search committee has shortlisted three candidates for the Mysore University Vice-Chancellor’s post. The committee, headed by K. Balaveera Reddy, met on Tuesday. Sources told The Times of India that the shortlisted candidates are from Lingayat, SC and Vokkaliga communities. The candidates’ names have been placed before the government”.

The report mentioned the names of the shortlisted candidates, from which one could discern their respective caste affiliations. Remarkably, the news report did not carry any details on the qualifications of those who aspired to be the new vice-chancellor of Mysore University. What were their areas of academic expertise? What were their plans for reviving a once-good university now gone to seed? Apparently, these matters did not matter to the newspaper, as they did not to the government that was to make the appointment. Perhaps they were of no concern to the candidates themselves.

I suspect that, in these respects, the Mysore case is entirely typical…

[...]

In the past few decades, however, the quality of teaching and research in Indian universities has rapidly declined. Surely this has something to do with the manner in which we have come to appoint the men and women at their helm? The same newspaper that reports neutrally and without comment that the vice-chancellor of Mysore University will and shall be picked on the basis of caste goes into an annual fit of apoplectic rage when The Times Higher Educational Supplement announces its list of the top hundred universities in the world, a list that always has no Indian universities but often features several Chinese ones.

After one accepts the premise that the state has a role in the education sector, and then the premise that affirmative action is justified to a certain degree, both of which Guha does, why is he surprised at the state of the education sector? Further why does it matter if the candidate is selected on the basis of his caste, or religion, or language or some similar factor over which he has no control, or his or his father’s bank balance for that matter, and not merit? The nature of politics in our country is such that a problem can be found for every solution. That’s how vote banks are created.

If one thinks that the situation will change anytime in the future, one is living in a fool’s paradise. As long as one is living there, why not do it in a principled manner?

Aesthetics

Today’s Times view and counterview debate is about “beauty” vs. “merit”-

Wimbledon, of course, is not a beauty contest. But All England Club spokesman Johnny Perkins has admitted that good looks are a factor in scheduling Centre Court matches, adding “it’s not a coincidence that those (on Centre Court) are attractive.” The howls of outrage that have followed ignore that the attractiveness of players does have a role to play in winning fans for the game. And it’s viewership that brings in the money that enables contests like Wimbledon to be held. Scheduling Centre Court matches is a small matter; it isn’t as if competent players are being kept out of the tournament on the basis of their looks.

As a BBC spokesperson pointed out, “Our preference would be a Brit or a babe as this always delivers high viewing ratings.” Looks have had a prominent role to play in women’s tennis since the days of Chris Evert. Or does anyone truly believe that Anna Kournikova was popular because of the astounding skills that saw her win, well, not a single Grand Slam? Many of the players themselves have made no secret about the importance they attach to their glamour quotient. Why the indignation when the organisers decide to do the same?

—

Wimbledon apologists can defend what the organisers have done until they’re hoarse. But the fact remains that the grand slam that matters the most has descended to sexist methods again to make money. It shouldn’t have been a surprise that the All England Club would decide to privilege babes over top tennis players this is, after all, the same tournament that only started awarding equal prize money to male and female champions in 2007. Nevertheless, given how Wimbledon portrays itself as the last bastion of class, such crassness comes as a shock.

A few weeks back, Marguerite Theophil made a similar argument-

Details that don’t appear when writing about men easily and regularly find their way into reports about women. Last year, during the US Democratic presidential debate, stereotypical remarks were casually flung about. The articulate and intelligent Senator Hillary Clinton, the lone woman on stage with seven men, was described as appearing “demure” and “ladylike”. Later, Michelle Obama, a Harvard-educated lawyer, “looked well-turned-out… classy, as we used to say.” We have become so used to this patronising language that we generally unthinkingly say, “What’s wrong with that?” or even “But it’s a compliment!” A journal dealing with women and development highlighted this, creatively inserting tongue-in-cheek additions to a report of the kind often included in information about women, but unfamiliar, even bizarre-sounding, when writing about men: “When the negotiations opened in Luxembourg, negotiators had a clear mission to fulfil. A new cooperation agreement needed to be drafted between the twelve states, represented almost entirely by elderly grandfathers, dressed conservatively in gray or navy suits, and the African-Caribbean-Pacific Group’s states … visiting Luxembourg for the first time, and dressed in a colourful array of robes and tropical wear from their home countries… A welcome diversion during the opening session was the arrival of several younger men, elegantly outfitted in outfits from leading fashion houses… Speaking articulately and intelligently, they finished their remarks with a folk song from the host country.”

I think they are making a mountain out of a molehill. How does appreciating beauty become sexism of the “discrimination” kind? The fact remains that the better player will win the title, and neither Clinton’s nor Obama’s appearance would be relevant when it came to their jobs. Beauty is about aesthetics. People like beautiful things. All beautiful things. That’s why they enjoy gazing at, among other things, “babes” and “hunks” instead of hags and scrawny octogenarians.

An interesting conversation between Cameron and the incorrigible House goes something like this-

“Why did you hire me?”

“Does it matter?”

“Kinda hard to work for a guy who doesn’t respect you.”

“Why?”

“Is that rhetorical?”

“No, it just seems that way because you can’t think of an answer. Does it make a difference why I think I’m a jerk? The only thing that matters is what you think. Can you do the job?”

“You hired a black guy because he had a juvenile record.”

“No, it wasn’t a racial thing, I didn’t see a black guy. I just saw a doctor…with a juvenile record. I hired Chase ‘cause his dad made a phone call. I hired you because you are extremely pretty.”

“You hired me to get into my pants?!”

“I can’t believe that that would shock you. It’s also not what I said. No, I hired you because you look good; it’s like having a nice piece of art in the lobby.”

“I was in the top of my class.”

“But not the top.”

“I did an internship at the Mayo Clinic.”

“Yes, you were a very good applicant.”

“But not the best?”

“Would that upset you, really, to think that you were hired because of some genetic gift of beauty not some genetic gift of intelligence?”

“I worked very hard to get where I am.”

“But you didn’t have to. People choose the paths that grant them the greatest rewards for the least amount of effort. That’s the law of nature, and you defied it. That’s why I hired you. You could have married rich, could have been a model, you could have just shown up and people would have given you stuff. Lots of stuff, but you didn’t, you worked your stunning little ass off.”

“Am I supposed to be flattered?”

“Gorgeous women do not go to medical school. Unless they’re as damaged as they are beautiful…”

You wouldn’t choose your cardiologist based on his looks. And you wouldn’t attend a concert given by an intelligent, hardworking, talented but essentially tone deaf bunch of amateurs. Merit—talent, intelligence, hard work etc—has its place in the scheme of things, an important one. So does beauty, or aesthetics.

“Freedom”

I am debating the issue of, as K.M. frames it, “Is a monopoly on the use of force the logical outcome of applying the ethics of egoism to the functioning of a society?” Plainly speaking, is the existence of the State justified? It started over my response to a comment by Pravin here. I was responding to K.M.’s question last night, but stopped myself. I thought this would be the right time to finish reading Leoni’s “Freedom and the Law,” something I started in Dec-Jan. Instead of adding unrelated, tangential stuff to the forthcoming response, I thought I could quote some interesting bits in some posts of mine.

I had started my response with these paragraphs-

What is an “unfree” market? Let me ask the question the other way round – what is a “free” market? It is a market in which the State does not interfere (the only “interference” would be of the enforcement of contracts kind). Political/ economic freedom is always defined in terms of the State, not in terms of non-State actors. The latter don’t lay any claim to morality when they engage in fraud, theft, murder, confinement etc. It is the State which does that. So, an “unfree” market would be one with State interference.

Sometimes, I do use the terms “market” and “free market” differently. That’s because a “market” can be anything. Markets other than the free market, gray market and black market exist. Such other markets can work beyond even “proper” laws. There can be a market in stolen goods, in women, in children – anything. But when I am talking about politics, and specifically laws, I am surely referring to the free market. Even assuming a “market” where the State is a participant, or controller, why would I claim that a market controlled by the State is better than the State? It makes no sense.

The above won’t make much sense unless you follow the debate. I quote this because of something Leoni says. Part of it should be a warning to those who believe in any kind of paternalism. From the chapter “‘Freedom’ and ‘Constraint’”-

“Freedom,” by the way, is a word with favorable connotations. Perhaps it may be useful to add that the word “freedom” sounds good because people use it to point to their positive attitude toward what they call “being free.” As Maurice Cranston has observed in his essay on Freedom (London, 1953) quoted above, people never use expressions such as “I am free” to mean that they are without something they consider to be good for them. None says, at least in speaking of day-to-day affairs, “I am free from money” or “I am free from good health.” Other words are used to express the attitude of people toward the absence of good things: they say that they lack something; and this applies, so far as I know, to all the European languages at present as well as in the past. In other words, to be “free” from something means “to be without something that is not good for us,” while, on the other hand, to lack something means to be without something that is good.

Of course, freedom has little meaning when it is complemented only by the expression “from something,” and we expect people to tell us also what it is that they are free to do. But the presence of a negative implication in the word “freedom” and in certain related words like “free” seems unquestionable. This negative implication is also present in derivative words connected with the term “liberty,” which is simply the Latin counterpart of “freedom” and not a word with a different meaning. For instance, “liberal” is a word that designates both in Europe and in America a negative attitude toward “constraint,” regardless of the nature of the “constraint” itself, which in its turn is conceived of very differently by American and by European “liberals.”

Thus, “freedom” and “constraint” in ordinary language are antithetical terms. Of course, one can like “constraint” or some kind of “constraint,” like the Russian army officers of whom Tolstoy said that they liked military life because it turned out to be a sort of “commanded idleness.” Many more people in the world like “constraint” than we probably imagine. Aristotle made a penetrating remark when he said at the beginning of his treatise on politics that people are divided into two broad categories, those who were born to rule and those who were born to obey rulers. But even if one likes “constraint,” it would be an abuse of words to say that “constraint” is freedom. Nevertheless, the idea that “constraint” is something very closely connected with freedom is at least as old as the history of political theories in the Western world.

I think that the main reason for this is that no one can be said to be “free from” other people if the latter are “free” to constrain him in some way. In other words, everyone is “free” if he can constrain in some way other people to refrain from constraining him in some respect. In this sense, “freedom” and “constraint” are inevitably linked, and this is probably too often forgotten when people speak of “freedom.” But “freedom” itself in ordinary language is never constraint, and the constraint that is linked inevitably with freedom is only a negative constraint; that is, a constraint imposed solely in order to make other people renounce constraining in their turn. All this is not merely a play on words. It is a very abridged description of the meaning of words in the ordinary language of political societies whenever individuals have any power whatever to be respected or, as one might say, whenever they have any power of a negative kind entitling them to be called “free.”

In this sense, we can say that the “free market” also inevitably implies the idea of a “constraint” in that all the members of a market society have the power to exercise restraint against people like robbers or thieves. There is no such thing as a “free market” with some constraining power superadded. A free market is rooted in a situation in which those engaged in market transactions have some power to constrain the enemies of a free market. This point probably is not emphasized sufficiently by those authors who, in focusing their attention on the “free market,” end by treating it as the very antithesis of governmental constraint.

Thus, for instance, Professor Mises, an author whom I admire greatly for his adamant defense of the “free market” on the basis of lucid and compelling reasoning and a superb mastery of all the issues involved, says that “liberty and freedom are terms employed for the description of the social conditions of the individual members of a market society in which the power of the indispensable hegemonic bond, the state, is curbed lest the operation of the market be endangered.” We notice here that he has qualified as “indispensable” the hegemonic bond of the state, but he means by liberty, as he also says, “restraint imposed upon the exercise of the police power” without adding exactly, as I would consider it reasonable to add from the point of view of a free-trader, that liberty means also restraint imposed on the exercise of the power of anyone else to interfere with the free market. As soon as we admit this meaning of liberty, the hegemonic bond of the state is not only something to be curbed, but also, and I would say first of all, something we make use of to curb other people’s actions.

Note, in the last two paragraphs, the difference between Leoni’s and Mises’ views of the “free market.” I believe that Mises implicitly states what Leoni is explicit about. It is a “given” that normal people have the right to “constrain” people like thieves, robbers and fraudsters, people whom Leoni later refers to as those indulging in “‘misproductive’ work—i.e., work that is useful for the worker, but not for those for whom, or against whom, he works.” I am with Mises here. The free market must be treated as the very “antithesis of governmental constraint.”

—

There are lots of people who do not like the conclusions of natural rights-based ethics and politics. They try to “disprove” it. Like Mr. LaFollette. He writes-

The problem with libertarianism can be seen once we recognize the limitations that negative rights (libertarian constraints) themselves place on individual liberty. Suppose, for example, that I am the biggest and strongest guy on the block. My size is a natural asset, a physical trait I inherited and then developed. But can I use my strength and size any way I please? No! At least not morally. Though I am physically capable of pummeling the peasants, pillaging property, and ravishing women, I am not morally justified in doing so. My freedom is restricted without my consent. I didn’t make a contract with the property owners or the women; I didn’t promise not to rap, rob, or rape. Just the same, morally I cannot perform these actions and others can justifiably prohibit me from performing them.

Consequently, everyone’s life is not, given the presence of negative general rights and negative general duties, free from the interference of others. The “mere” presence of others imposes duties on each of us, it limits everyone’s freedom. In fact, these restrictions are frequently extensive. For example, in the previously described case I could have all of the goods I wanted; I could take what I wanted, when I wanted. To say that such actions are morally or legally impermissible significantly limits my freedom, and my “happiness,” without my consent. Of course I am not saying these restrictions are bad. Obviously they aren’t. But it does show that the libertarian fails to achieve his major objective, namely, to insure that an individual’s freedom cannot be limited without his consent. The libertarian’s own moral constraints limit each person’s freedom without consent.

This is even more vividly seen when we look at an actual historical occurrence. In the nineteenth century American slaveholders were finally legally coerced into doing what they were already morally required to do: free their slaves. In many cases this led to the slave owners’ financial and social ruin: they lost their farms, their money, and their power. Of course they didn’t agree to their personal ruin; they didn’t agree to this restriction on their freedom. Morally they didn’t have to consent; it was a remedy long overdue. Even the libertarian would agree. The slave holders’ freedom was justifiably restricted by the presence of other people; the fact that there were other persons limited their acceptable alter natives. But that is exactly what the libertarian denies. Freedom, he claims, cannot be justifiably restricted without consent. In short, the difficulty in this: the libertarian talks as if there can be no legitimate non-consensual limitations on freedom, yet his very theory involves just such limitations. Not only does this appear to be blatantly inconsistent, but even if he could avoid this inconsistency, there appears to be no principled way in which he can justify only his theory’s non-consensual limitations on freedom.

[...]

We have uncovered a very telling incoherence. We have taken the main libertarian weapon against welfare statism and turned it on itself. The once so-sharp sword is seen to have two sides. Instead of menacing the enemy, the sword only frustrates its wielder. As everyone knows, two edged swords cut both ways. The libertarian is unable to support his conception of the minimal state. At least some redistribution of tax monies is justified.

In other words, under “negative liberty,” I don’t have the moral right to restrict others’ physical freedom (freedom from interference – harm) without their consent. Therefore “negative liberty” restricts my physical freedom (freedom to interfere – harm). Therefore “negative liberty” is disproved. This is what Leoni talks about in the above chapter. People fail to understand the relationship between “freedom” and “constraint.” The words freedom and constraint are not mutually exclusive. “Freedom” is defined in terms of “constraint.” The freedom to restrict someone else’s freedom is a contradiction in terms. Its like dividing both sides of a mathematical equation by zero. One ends up with gibberish.

Leoni writes about such kind of confusion-

[T]he very fact that constraint is in some way inevitably linked with “freedom” in all political societies gave rise to or at least favored the idea that “increasing freedom” could be somehow compatible in those societies with “increasing constraint.” This idea was, in its turn, connected with a confusion about the meaning of the terms “constraint” and “freedom” which is chiefly due, not to propaganda, but to the uncertainties that can arise about the meaning of these words in ordinary usage.

Professor Mises says that “freedom” is a human concept. We must add that it is human in so far as some preference on the part of men is always implied when we use that term in ordinary language. But this does not mean that a man can be said to be “free” only from the power of other men. A man also can be said to be “free” from a disease, from fear, from want, as these phrases are employed in ordinary language. This has encouraged some people to consider “freedom from other men’s constraint” on a par with, say, “freedom from want,” without observing that the latter kind of “freedom” may have nothing to do with the former. An explorer may be starving in the desert where he wanted to go alone without being constrained by anybody else. Now, he is not “free from hunger,” but he is, as he was before, completely “free from coercion or constraint” on the part of other people.

[...]

You do not “constrain” someone if you merely refrain from doing on his behalf something you have not agreed to do.

Also, note the parasitic nature of the argument – the freedom to kill, pillage etc. When we build a political philosophy on top of ethics, we are not indulging in bootstrapping. Politics isn’t divorced from ethics. Crusoe, alone on his island, can try to survive on the basis of such an ethic, but he can’t succeed. And its this feature that is carried forward in politics when Friday enters the picture. All this reminds me of a poignant passage from The Fountainhead-

Once, in Wynand’s office, [Alvah Scarret] ventured to say:

“Gail, why don’t you negotiate? Why don’t you meet with them at least?”

“Shut up.”

“But, Gail, there might be a bit of truth on their side, too. They’re newspapermen. You know what they say, the freedom of the press . . .”

Then he saw the fit of fury he had expected for days and had thought safely sidetracked—the blue irises vanishing in a white smear, the blind, luminous eyeballs in a face that was all cavities, the trembling hands. But in a moment, he saw what he had never witnessed before: he saw Wynand break the fit, without sound, without relief. He saw the sweat of the effort on the hollow temples, and the fists on the edge of the desk.

“Alvah . . . if I had not sat on the stairs of the Gazette for a week . . . where would be the press for them to be free on?”

—

What follows is David King’s thoughts on freedom. “There is no such thing as freedom,” he says. Read it. Carefully.

There are three aspects to the idea of freedom: Physical, Psychological and Social.

In physical terms, freedom–or the lack of it–refers to the constraints imposed by the laws of nature. For example: you are not free to flap your arms and fly through the sky. You are not free to breathe water, like a fish. This is not the sort of freedom I am going to talk about.

In psychological terms freedom refers to the constraints you may impose upon yourself because of your state of mind. For example: you may not be free to get a broken tooth fixed, simply because you dread going to a dentist. You may not be free to learn how to ski, simply because of your lack of self-confidence. This too, is not the sort of freedom I will deal with in this essay.

It is freedom in the context of interacting with other people that is my concern. I will try to make a precise statement of just what that kind of freedom is.

Consider these pairs of terms:

Light – Darkness
Sound – Silence
Heat – Cold
Slavery – Freedom

Let us examine the first of these pairs, light – darkness. Light is defined as electromagnetic radiation in a certain range of wavelengths. As such, we can easily understand and deal with the characteristics of light. We can measure stronger or weaker lights in terms of candlepower or lumens. We can identify different wavelengths of light and call them colors. We can produce light by means of light bulbs and torches. Light is a real existing thing. What then is darkness? Darkness is not a real existing thing. It is merely a term of convenience which we apply to a situation from which light is absent. You will observe that there are no units of measurement for darkness. There are not greater or lesser darknesses (what is greater or lesser in this situation is the amount of light present) nor are there different characteristics of darkness–there is only one kind of darkness and that is the complete absence of light. So long as there is any light at all present we cannot truthfully say that we have darkness but rather that we have a greater or lesser degree of illumination.

Now consider the second pair, sound – silence. Sound is defined as a certain sort of motion of the air. Sound comes in various degrees, namely louder and softer. It comes also in various types, namely of a higher or lower pitch. As with light, you can see (or rather, hear) that sound is a real existing thing. Silence, however, is not. It is merely a term of convenience which we apply to a situation from which sound is absent. And as with darkness, there is only one degree of silence, the complete absence of sound. So long as there is any sound present at all we cannot speak of silence but rather of more or less noise.

Now on to the third pair, heat – cold. Heat is a manifestation of the molecular energy in an object. We can make a measurement of heat by means of a thermometer and we can see (or feel) that heat comes in various degrees of temperature, and thereby we know that this energy content is a real existing thing. So what is cold? Cold is the absence of heat. Cold is not a real thing. You might now be tempted to say: “Humbug! I know cold is real. My refrigerator makes my milk cold. I know this because I drink the cold milk.” Well, your refrigerator does not put cold into the milk. What it does is to take heat out of the milk. The refrigerator is a “heat pump” which pumps the heat from the inside of the box to the outside. (You can feel the heat coming off of the radiator on the back of the refrigerator.) You will note that we have thermometers for measuring heat, but there is no device for measuring cold. You will note that heat is measured in degrees (fahrenheit or centigrade), but there is no unit of measurement which indicates coldness. Strictly speaking, there is only one degree of cold, and that is absolute zero, the point at which all the heat has been removed from an object. So you can see that it is not cold that is a real existing thing, but rather heat.

Now consider the fourth pair of terms, slavery – freedom. Keeping in mind the previous three distinctions I made, let us see what, in this context, is the real existing thing and what is merely a term used to indicate an absence. Consider that we can take a man and by the application of physical force we can compel him to submit to our will. We can also compel him to submit by threatening him with force. We can bind a man in chains; we can lock him in a cage; we can threaten to deprive him of his property, his liberty, or even his life. And thus we can force him to submit to our will. Surely you recognize this as the imposition of slavery. And you can see that slavery is a real existing state of affairs. There are degrees of slavery: some men are completely enslaved, such as negroes in the pre-civil-war South. Other men are more or less enslaved according to the amount of force or threat of force to which they are subjected. So, if slavery is a real existing thing, what then is freedom? Is it not a real thing? After all, men have been willing to fight for it and to die for it all through history. Do they fight and even die for a nothing? For a notion that does not exist in reality? Is it not true that a man will go out and fight against tyranny, and when he has destroyed the tyrant does he not smile and say, “Now I have freedom!”? Doesn’t he have something that he did not have before? Namely freedom? Well, let us see what he does have and what he does not have. Before, when he was living under the tyranny, there was imposed upon him a force or a threat of force, to which he was compelled to submit. Then, when he fought, his objective was to destroy the tyrant. When he fought he did not take some thing away from the tyrant; rather, he destroyed the thing that the tyrant had used against him. The thing destroyed was the tyrant’s ability to compel. And then, after his success, when he said, “Now I have freedom!” did he possess any real thing as a result of his fight? Obviously not. No real existing thing has come into his possession which he did not previously possess. What has changed is that he is now living in a different social situation. Whereas before there was force now there is not. And this situation is what he calls freedom. Freedom is the absence of slavery. Freedom is not a real existing thing, it is rather the term we apply to a situation from which compulsion is absent.

I want now to make the most critically important point of my essay. I have maintained that darkness, silence, cold and freedom are not real existing things. What I have said is true. But what I have said, if not properly understood, can be fatally misleading. Consider one more example of the same nature as those I have illustrated: You can pluck a rock out of the ground, leaving a hole, and you can say that it is the rock that is the real thing and that the hole is merely the absence of the rock, and therefore not real. That is the frame of reference I have used throughout this essay, and it is correct, as far as it goes. But it is certainly not complete. Just as you might stumble over the rock and break your leg, so you might fall into the hole and break your leg. Your relationship to the hole, you see, is a rather important situation. Even though we may consider the hole as being merely the absence of the rock, it certainly does have relevance to your life. And although I have said that darkness, silence, cold and freedom are merely absences, I do not mean to deny their relevance to life. The absence of light which is a blind man’s darkness is crucially important. The absence of sound which is a deaf man’s silence is very relevant. The absence of heat which is a dead man’s cold is undeniably significant. And the absence of slavery which means the freedom of Man is the basis of all human progress.