Literature – Double Aspect

Tanstaafl

What do a libertarian society and its laws look like? Thoughts on Robert Heinlein’s The Moon Is a Harsh Mistress

I have recently ― and, needless to say, very belatedly, for a self-proclaimed science-fiction fan ― read Robert Heinlein’s The Moon Is a Harsh Mistress. I had been put off of Heinlein by Isaac Asimov’s somewhat harsh take on him in his memoir, I. Asimov, just as I’ve been forever put off Sartre by Boris Vian’s portrayal of him as Jean-Sol Partre. No regrets so far as Sartre is concerned, but I am glad I got over my aversion to Heinlein. The Moon Is a Harsh Mistress is an interesting book. Interesting enough, from a legal perspective, that I think it deserves a post here.

In a nutshell, the story is a retelling of the American Revolution, but set on the Moon, a.k.a. Luna, in 2075-76. The lunar population is oppressed by the Authority that supposedly runs the place on behalf of the Earth’s governing “Federated Nations”, but is mostly content to just plunder it by banning free trade and underpaying for the sole export ― grain (hydroponically grown) ― and overcharging for imports. Otherwise, the “Loonies”, most of whom are either transported convicts ― some actual criminals, others political undesirables ― or descendants of convicts, are largely left to their own devices, and become resentful of the Authority’s interference and exploitation. When the Authority tries to put an end to low-level grumbling, things quickly get out of control. Thanks to their courage, self-reliance, and the good fortune of having a fearsomely brilliant self-aware computer (I suppose we would now say AI) on their side, the rebels prevail, though not without considerable loss in the end.

The interest of such a book is, of course, primarily in its representation of a society very different from ours. (I am deliberately echoing the title of David Friedman’s Legal Systems Very Different from Ours, to which I will return.) The difference has little to do with technology ― indeed, on that front, The Moon Is a Harsh Mistress is just one of the many examples of science fiction Golden Age’s writers’ utter failure to anticipate the advances in computing and telecommunications that have occurred in the last 35 or so years. Heinlein’s Luna is a place of fixed (should one say moonline?) phones! What does make it different from 1960s and 2020s, Earth is its having had to adapt to an unforgiving environment, the virtual impossibility for its inhabitants to return “Earthside” where they are crushed by gravity, their lack and suspicion of organized government, and the sex imbalance that one might expect in a penal colony.

Heinlein’s lunar society is a libertarian one, and it is very odd, and unsettling in some ways ― seemingly high prevalence of illiteracy and very early marriages among others. In other ways, though, it is far ahead not only of the time of the book’s publication (1966) but even of ours, especially in its absolute intolerance of what we today might refer to as #MeToo abuses ― touching a woman without her consent, in however minor a fashion, might get a male Loonie “eliminated” at the nearest airlock. (The ready acceptance of the death penalty is another unsettling aspect of the place.) And while Heinlein’s vocabulary sometimes is antiquated, and he does fall into some annoying tropes more in tune with his times than ours, there is no question that his Loonies also have no time for, and indeed no concept of, racial bigotry ― though I suspect that they’d have no time for latter-day progressive identity politics too.

One might wonder, of course, whether Heinlein’s social prognostication is any more lucid than the technological sort. Perhaps a more or less anarchical society with a sex ratio severely out of whack will actually be a hell hole, not the creative and resilient if also deeply weird kind of place The Moon Is a Harsh Mistress depicts. But you know what? People with more conventional views get their fairy tales told to them by gaggles of politicians at every election campaign. If that has a value, then so does libertarian science-fiction. At least, we’re not about to get a Prime Minister Heinlein imposing his views on the rest of us just because we hated him a little less than the other guy. And the fundamental maxim of lunar libertarianism ― there ain’t no such thing as a free lunch, or tanstaafl for short ― is something that we would all do we well to keep in mind.

Still, I do want to pick a fight with Heinlein on one thing: his views of law and perhaps adjudication. The latter, like most everything else in Luna, is done privately, and often as a matter of improvisation. A citizen is simply asked to “go judge” and accepts, for a fee of course ― tanstaafl ― paid equally by both parties to the dispute. A few make this something like a part-time occupation, but there is no professional judiciary, just as there are no lawyers. And there are no laws. The protagonist speaks derisively of

an earthowrm [who] expects to find a law, a printed law, for every circumstance. Even have laws for private matters such as contracts. Really. If a man’s word isn’t any good, who would contract with him? Doesn’t he have reputation?

He adds that, instead of “printed laws”, Loonies

[h]ave customs [that] aren’t written and aren’t enforced ― or could say they are self-enforcing because are simply way things have to be, conditions being what they are. Could say our customs are natural laws because are way people have to behave to stay alive.

(Note that the lack of articles and pronouns in the quotations isn’t a typo or an accident: the Loonies’ English has a bit of a Russian accent. I wonder if non-Russian speakers will find it annoying, but it is mostly well done and I was rather impressed.)

Heinlein’s protagonist has a good understanding of natural law: see, for example, Randy Barnett’s explanation of natural law as a set of principles such that “[i]f we want persons to be able to pursue happiness while living in society with each other, then they had best adopt and respect a social structure that reflects these principles”. (657; emphasis removed) But he doesn’t seem to understand something that actual natural lawyers have always recognized: the natural law principles aren’t enough. To be useful, at least in a large-scale society, they need to be implemented and given relatively specific shape, which is what “printed”, or at least positive, laws are for. Natural law principles might lead us to the conclusion that we must make up for the losses we negligently cause, but not necessarily tell us what counts as negligent, or how to assess the compensation. Reputation can work to secure the performance of contracts among people who know one another, but it is of less help when we deal with strangers, nor does it necessarily assist us in figuring out what to do about a bargain that has been upended by a change of circumstances.

All that is not to say that the laws must necessarily be the work of a legislature or some other centralized, governmental institution. Perhaps, but that case must be made separately. As Bastiat pointed out in The Law, it is wrong to think that if something is not provided by the state it will not be provided at all, and this may well be as much of a mistake in relation to laws themselves as to other things. Perhaps laws can be efficiently supplied by institutions involved in a competitive marketplace ― indeed, it might not be too much of a stretch to say that the early development of the common law by royal courts competing with other kinds of courts looked a bit like that, though to be sure it wasn’t exactly a free market.

Conversely, though, thinking that there ought to be no state, or a minimal state, or a state that doesn’t seek to monopolize the law, doesn’t mean that one can do without laws ― or without lawyers and professional judges. Even among those of the “legal systems very different from ours” Professor Friedman describes that are not state-based, many rely on professionals for adjudication and sometimes legal representation. It is tempting to think, as Heinlein’s protagonist seems to think, that lawyers and professional judges are only a drain on society, but they ― like all other specialists ― are only a manifestation of the division of labour. If laws are necessary, and they are, and complicated, and they are too, then it is more efficient to let them be handled by people who specialize in this. On this point, Heinlein, or at least his character, fails to apply their own cardinal rule: one cannot have the benefits of a sophisticated legal system without some inconvenience: tanstaafl.

This critique notwithstanding, I do think that The Moon Is a Harsh Mistress is an interesting and worthwhile attempt to think through the working of a libertarian society and its (inevitable?) conflict with a statist neighbour. It might come short in dealing with any number of specific aspects of these problems, but the attempt is hardly less valuable despite this. So let me conclude by quoting the appeal of another of the principal characters to the lunar constitutional convention ― it is one that we would do well to take seriously in our own thinking about constitutions:

[I]n writing your constitution let me invite attention to the wonderful virtues of the negative! Accentuate the negative! Let your document be studded with things the government is forever forbidden to do. No conscript armies … no interference however slight with freedom of press, or speech, or travel, or assembly, or of religion, or of instruction, or communication, or occupation … no involuntary taxation. … What I fear most are affirmative actions of sober and well-intentioned men, granting to government powers to do something that appears to need doing.

Antigone in Hamilton

The confrontation between New Zealand legal system and a family trying to bury a dead husband/father is eerily like Sophocles’ tragedy

It’s the story of wanting to mourn and bury a family member, and being prevented from doing so by law, perhaps not an unreasonable law. It’s the story of breaking the law to do what one thinks is right, and of not only being punished for it but being scolded by a man self-righteously posing as the voice of his people. It’s an old story. It’s one of the oldest stories. It’s a story that’s 2500 years old.

No, wait. It’s a new story. It just happened in Hamilton. (The New Zealand Hamilton, that is.) Stuff reports that a mother and her children “had flown over from Brisbane after the children’s father suffered a stroke and died on July 20. … She said the children had watched their father take his last breaths on a video call”. On arrival in New Zealand, they were put in quarantine. They applied for a compassionate exemption to attend the funeral, but their application was denied on the basis that “their ‘circumstances were not exceptional'”. So they escaped. The mother and three children were quickly captured, but a 17-year-old boy made it from Hamilton to Auckland, and “was able to spend between three and four hours with his father’s body before he negotiated with police and was detained”. And hence the grandstanding in Hamilton Youth Court:

All appeared in front of Judge Noel Cocurullo, who said that New Zealanders were “sick and tired” of quarantine breaches. “The New Zealand public would be gutted at your behaviour,” he told the family. “You know the rules required of you coming into the country. It’s most important you comply with the rules.”

The mother, though, is not impressed with this. She “told Stuff ‘[she] was doing what any other mother would have done for their children'”.

I’m not sure about “any”, but as Sophocles knew, she certainly has a point. He tells of Creon, the king of Thebes, prohibiting anyone on pain of death from giving the funeral rites to Polyneikes, who tried to bring an invading foreign army to the city. Polyneikes’ sister Antigone defied Creon’s edict and tried to bury her brother.

The resulting conversions, although fortunately not the ultimate outcome (spoiler alert: it’s a tragedy, so everybody dies) foreshadow the recent events quite uncannily. Creon, like Justice Cocurullo appeals to the public authority of the laws, and Antigone, like the mother here, trumps it with that of natural, pre-political obligation:

Creon: Knew’st thou the edicts which forbade these things?

Antigone: I knew them. Could I fail? Full clear were they.

Creon: And thou did’st dare to disobey these laws?

⁠Antigone: Yes, for it was not Zeus who gave them forth,⁠
Nor Justice, dwelling with the Gods below,
Who traced these laws for all the sons of men;
Nor did I deem thy edicts strong enough,
That thou, a mortal man, should’st over-pass
The unwritten laws of God that know not change.
They are not of to-day nor yesterday,
But live for ever, nor can man assign
When first they sprang to being. Not through fear
Of any man’s resolve was I prepared
Before the Gods to bear the penalty
Of sinning against these.

And Creon, like Justice Cocurullo, insists that the people are with him, not with the one who defies him. She, though, begs to differ:

Creon: Of all the race of Cadmos thou alone
Look’st thus upon the deed.

Antigone: ⁠They see it too
As I do, but their tongue is tied for thee.

Creon: Art not ashamed against their thoughts to think?⁠

Antig: There is nought base in honouring our own blood.

And, is it turns out, it is probably Antigone who is right about the state of public opinion. Creon’s son and Antigone’s fiancé, Haemon, challenges his father:

Haemon: ‘Tis my lot to watch
What each man says or does, or blames in thee,
For dread thy face to one of low estate,⁠
Who speaks what thou wilt not rejoice to hear.
But I can hear the things in darkness said,
Ηοw the whole city wails this maiden’s fate,

I won’t pretend to know where the state of public opinion in New Zealand lies on this story. And, wherever it lies, this should not matter for Justice Cocurullo’s verdict. We have the advantage of separation of powers over the Thebans, and this means that our judges must apply the law as it is ― and it is, then, for the Crown and its responsible advisors to exercise the prerogative of mercy in the appropriate cases. I won’t even pretend to say whether this is such a case.

But what I think I can say is that Justice Cocurullo, and other judges ― not just in New Zealand ― should not be so quick to saddle their moral high horse. Another, more recent work of literature comes to mind ― Patrick O’Brian’s Desolation Island (one of the novels in the Master and Commander series), of all things, where Dr Maturin, I believe, has this to say:

judges … not only are … subjected to the evil influence of authority but also to that of righteous indignation, which is even more deleterious. Those who judge and sentence criminals address them with an unbridled, vindictive righteousness that would be excessive in an archangel and that is indecent to the highest degree in one sinner speaking to another, and he defenceless. Righteous indignation every day, and publicly applauded!

And if there is one thing worse still than righteous indignation on own’s behalf, it is that on behalf of others ― who, as often as not, will not actually share in it. That is as true now as it was 2500 years ago.

The Mirror and the Light

Thoughts on finally finishing the last part of Hilary Mantel’s Thomas Cromwell trilogy

More determined readers finished it long ago, but I only did so yesterday, and thought I would offer some thoughts on Hilary Mantel’s The Mirror and the Light, the final book of her Thomas Cromwell trilogy. I suppose I should say “spoiler alert”, but of course there aren’t any spoilers there. We know exactly how the book ends. (And indeed I have blogged about a straight-up biography of Cromwell here.) For Dame Hilary’s readers, it is the journey, not the destination, that matters.

And what a journey it is! The book is well over 850 pages long. To be honest, it really should have been two books. I went into it a huge fan of Dame Hilary and, to anticipate, I come out of it a huge fan still; but my commitment has been sorely tested. There is, inevitably, a mind-boggling amount of detail about the events of Cromwell’s years of power and then his downfall ― indeed, only a sample of the events, as some strands of the historical Cromwell’s story are worn down to barely perceptible threads. But, in addition, the narrative gets lost in meditations ― Cromwell’s or Dame Hilary’s narrator’s, it is characteristically hard to tell; meditations on time and place, on fate and memory, on life and death. It may well be that this sense of being caught in a maze of events, perhaps inconsequential, and reveries, likely fateful ― in a sprawling house full of hidden recesses and secret passages and dark basements filled with secreted relics and not a few skeletons, like Cromwell’s Austin Friars ― is exactly what Dame Hilary wants her reader to feel. (She gives an account of her thoughts on these things in Reith Lectures, which I highly recommend.) But, for all the mastery with which it is delivered, and for all the depth of the thoughts ― to some of which I return below ―, it is sometimes too much.

But, as the story breaks out of the maze at last, in the last 150 or so pages, and speeds up to its inevitable conclusion on Tower Hill, its telling is at a level that few writers can even hope to ever achieve. The reader knows what is coming, of course: the fall, the Tower, the scaffold. Denied the possibility to surprise, Dame Hilary must entrance the reader; she sets herself a seemingly impossible task: how can you tell a man’s execution, especially when her writing, as always, is very much inside her character’s mind, this inimitable hybrid between a third- and a first-person narration that the readers of Wolf Hall and Bring Up the Bodies will remember? Well, you and I couldn’t, but Dame Hilary can. In the real Cromwell’s life much remains unknown, caught in the record only as a reflection or a shadow. For Dame Hilary’s readers, it will be impossible to imagine that events unfolded in a way different than the one she conjectures, or indeed that Cromwell’s thoughts were not those she imputes to him.

Let me say something about these thoughts, and others that Dame Hilary explores. I don’t imagine that she meant to write about our current moment in particular. For one thing that would be diminishing what is really a timeless literary achievement. For another, as brilliant as she is at imagining the past, I don’t suppose that Dame Hilary can see the future, and after all she worked on The Mirror and the Light a long time, starting when the world was still a different, and in some ways a more innocent place. So, to repeat, the book is no allegory for the present. Yet so much of it seems to be about 2020, not 1540.

Of course there are meditations on the law. Dame Hilary studied law, and her Cromwell is very much a lawyer. (So are the protagonists of her excellent early novel about the French revolution, A Place of Greater Safety ― Danton, Dumoulin, and Robespierre.) There is this, on retroactive law, and on due process more generally:

A prince cannot be impeded by temporal distinctions: past, present, future. Nor can he excuse the past, just for being over and done. He can’t say, ‘all water under the bridges’; the past is always trickling under the soil, a slow leak you can’t trace. Often, meaning is only revealed retrospectively. The will of God, for instance, is brought to light these days by more skilful translators. As for the future, the king’s desires move swiftly and the law must run to keep up. ‘Bear in mind his Majesty’s remarkable foresight, at the trial of the late queen. He knew the sentence before the verdict was in.’

And process is again all-important at the end, as Cromwell is arrested and charged with fanciful, made-up transgressions: “‘Valentines? Sorcerers? Any jury would laugh you out of court.’ But, he thinks, there will be no jury. There will be no trial. They will pass a bill to put an end to me. I cannot complain of the process. I have used it myself.”

In the end, Dame Hilary’s Cromwell becomes a sort of critical legal scholar:

Rats have eaten the laws of ancient times. They relish fish-glue and vellum; anything that was once alive, they will eat it, and then out of habit, they will eat what is dead; from the margins they chew their way in, to the secret history of England. It is the glory of the men who have worked with Cromwell that instead of merely cursing the vermin they have patched, they have mended, they have stretched a point to replace a gnawed vowel; they have been ready to substitute a digested phrase with a clause that will help the crown. But what has it availed? He has lived by the laws he has made and must be content to die by them. But the law is not an instrument to find out truth. It is there to create a fiction that will help us move past atrocious acts and face our future. It seems there is no mercy in this world, but a kind of haphazard justice: men pay for crimes, but not necessarily their own.

Perhaps what we have come to call the Rule of Law is better, then.

Beyond law, there are reflections on power ― princely power, of course, but I think we must ask how they apply to power exercised not only by monarchs but also by electorates or even by online mobs. In the very beginning, at the execution of Anne Boleyn, Cromwell turns on the Duke of Suffolk, who demands to know why he did not force Anne’s father to witness it. He insists that he must protect the King from being needlessly cruel: “[i]f you love the king … , pay some heed to his soul. One day he will stand before God and answer for every subject.” But can a man who uses and abuses the law as Dame Hilary’s Cromwell does truly say that he pays heed to the King’s soul? He does not seem to ask himself these questions, not until it is too late and he realizes that for “ten years I have had my soul flattened and pressed till it’s not the thickness of paper”. But we must.

The sovereign, perhaps, is not like the rest of us:

is a prince even human? If you add him up, does the total make a man? He is made of shards and broken fragments of the past, of prophecies and of the dreams of his ancestral line. The tides of history break inside him, their current threatens to carry him away. His blood is not his own, but ancient blood. His dreams are not his own, but the dreams of all England: the dark forest, deserted heath; the stir in the leaves, the dragon’s footprint; the hand breaking the waters of a lake. His forefathers interrupt his sleep to castigate, to warn, to shake their heads in mute disappointment.

An electorate, a people, is not human either. It too is all these things, perhaps; it too is haunted.

Against power, there is also disobedience, and revolt. The Pilgrimage of Grace is at least a better-sounding name than populism, but is there much difference ― in reality, or in how those in power think about these things? The rebels think, or those who write about them say they think, that

[t]here was a former age, it seems, when wives were chaste and pedlars honest, when roses bloomed at Christmas and every pot bubbled with fat self-renewing capons. If these times are not those times, who is to blame? Londoners, probably. Members of Parliament. Reforming bishops. People who use English to talk to God.

…

Their leaders tell them that Henry has made himself God. Now if a child falls sick between Truro and Newcastle, they lay it at the king’s door; if a well dries, if the butter spoils, if a bucket leaks: everything that is out of joint with them, from a fall of hailstones to a cricked neck, they blame on the court and council. Their grievances run like streams underground, welling up from the Scots border to Dover, till the whole land is flooded with nonsense.

Finally, a constant theme in The Mirror and the Light, and an especially relevant one just now, is what can be said. After the run-in with Suffolk, Cromwell wonders if he has gone too far in rebuking the duke, but wonders: “if you cannot speak truth at a beheading, when can you speak it?” He also tells his son, shortly thereafter, that “[i]t is not wrong to speak your mind. On selected occasions. They make it painful for you. But you must do it.” Yet as the story unfolds, the selection of the occasions grows ever stricter. He tells the King’s unloved, suspected daughter Mary “to compromise her conscience” to get back in his good graces. He knows that “of course she will despise herself afterwards. But that is the price. … [T]ime will ease the sting of it.” Dogma is uncertain and unsteady, but also deadly.

Corpus Christi is a miracle. It is a mystery. Once consecrated, the host contains your God, alive: the wine is his blood. You cannot hope to understand it but you must believe it. And if you fail to believe it you must keep quiet, because your failure can kill you.

Even the archbishop of Canterbury is afraid:

“[O]nce the bill is passed, none of us will preach on the Blessed Sacrament, its nature. We dare not. We would not know what it is safe to say, without being tripped by the law and cited for heresy.” This is what the king calls concord: an enforced silence.

Henry VIII has disciples in our own time, and people are afraid of them as the Bishop Robert Barnes was afraid of the enforcers of Henry’s shape-shifting orthodoxy: “It’s not his faith, but his temperament that will fail. He is not Luther. Here he stands: till Gardiner knocks him across the room.” Others too feel they “are living on borrowed time, in small rooms, a bag always packed, an ear always alert; … sleep[ing] lightly and some nights hardly at all.” In the end, Cromwell decides that he cannot speak the truth, certainly nothing like the whole truth, at his own turn on the block. For the sake of his son, his nephew, his friends, he speaks little, and says less.

A little earlier, as he awaits his execution, Cromwell imagines Heaven and Hell. “When he pictures Hell he can only think of a cold place, a wasteland, a wharf, a marsh, a landing stage; Walter” ― his abusive father ―

distantly bawling, then the bawling coming nearer. That is how it will be – not pain itself, but the constant apprehension of pain; the constant apprehension of fault, the knowledge that you are going to be punished for something you couldn’t help and didn’t even know was wrong; and the discord in Hell will be constant, repeating for ever and ever, a violent argument being carried on in the next room.

Sounds familiar, doesn’t it?

Anyway, read the book. Skip the middle 500 pages if you must, but do read it. You won’t be sorry.

How Power Corrupts IV

Thoughts on Bryan Caplan and David Henderson’s discussion of power’s corrupting effects

Longtime readers may recall my posts trying to catalogue the various ways in which political “power corrupts, and absolute power corrupts absolutely.” I have written about power’s subtle but corrosive effects on those who wield it, even once they no longer do; about the violence that those who exercise power inflict on others; and about power’s inextricable connection with lies. I have occasion to return to this topic, thanks to a discussion between Bryan Caplan and David Henderson over at EconLog.

Prof. Caplan argues that “politicians are, by and large, evil people.” They might be well-intentioned, but good intentions are not enough:

virtuous people can’t just conform to the expectations of their society. Everyone has at least a modest moral obligation to … investigate whether their society’s expectations are immoral.

Moreover, this obligation weighs more heavily on people exercising political power:

[i]f you’re in a position to pass or enforce laws, lives and freedom are in your hands. Common decency requires you to act with extreme moral trepidation at all times.

But politicians never do that, since “[t]hey’re too busy passing laws and giving orders to face the possibility that they’re wielding power illegitimately.” Indeed, they have no incentive to exercise this moral “due diligence,” because “[p]olitical systems reward them for seeming good by conventional standards.” At best, they will “do what most people consider good.” At worst, they will just pretend.

Prof. Caplan’s point about incentives is particularly important for the inquiry into the corrupting effects of power. Even if aspiring politicians start out agreeing with prof. Caplan about the importance of questioning prevailing moral standards, they will soon abandon such questions, which are only likely to land them in electoral trouble. The quest for power and the struggle to retain it do not just allow a person’s bad sides to shine; they also mar the good ones.

(Prof. Caplan also has a follow-up post in which he discusses politicians’ propensity to lie, and ties to his argument about their being evil. It’s worth a look, but since I have already dealt with that particular topic in a prior post, I will say no more of it here.)

Prof. Henderson responds that, though well put, prof. Caplan’s case is not “compelling,” in the sense that nothing much follows from it. For one thing, “politicians aren’t equally evil. In fact, a few seem to be quite good.” And for another, prof. Henderson reminds us of the inconvenient truth that, to achieve our goals ― he speaks of liberty, but of course it is no different if you believe in “justice,” or “equality,” or anything else ― we probably have to “deal[] with politicians.” And if we want to do that, we might as well treat them respectfully, even if suspect them of actually being evil.

Turning, as I did in my first post on this topic, to The Lord of the Rings, we might call this the Gondor problem. The ring of power might be dangerous, says Boromir, but we’ve got a country to save, and we’d be silly not to use it. And note that, in a very real way, Tolkien lets himself out of this problem a little easily. His characters, other than Boromir (and the more obvious “bad guys”) forswear the use of the One Ring, to be sure, but many of them are quite comfortable with wielding the more conventional instruments of power ― notably military force ― as well as the Three Elvish rings. While we are consistently told that these instruments cannot stop Sauron, especially if he get hold of the One Ring, they are nonetheless necessary tools to allow the One to be destroyed, as well as for solving the more minor problems characters face (such as the occupation of the Shire).

The most significant exception to this trend is, tellingly, Frodo, who pointedly refuses to take up arms during “the scouring of the Shire.” Frodo is clearly engaging in something like prof. Caplan’s moral due diligence, asking himself and others whether it is permissible to engage in violence to get rid of the “ruffians” who are occupying and exploiting the Shire. But his conclusion that violence is to be avoided to the greatest extent possible, and there is to be no killing of hobbits, does not make him very popular at all. He is, we are told, more or less sidelined during the events, and is not acknowledged as “the famousest of hobbits” in their aftermath. This is, of course, in keeping with what prof. Caplan says about politicians ― and, tellingly too, Frodo never seeks public office in the Shire, unlike all of his less morally diligent (or at least more morally conventional) companions.

But while Frodo does the right thing, is he right? It is painfully clear that that his attempts to operate by persuasion alone are not enough. If the hobbits want to live in their libertarian quasi-paradise instead of the semi-socialist dystopia, they have to fight for it. The conventional morality of Merry and Pippin leads them to what seems to be the only right conclusion, even though they fail to engage in right thought process. Perhaps this is accidental; Frodo just happened to be wrong, and his companions, right. Maybe Tolkien should have written a different book if he really wanted to be consistent in his message about the corrupting effects of power. But I’m not sure that this alternative book would have spoken to us in the way The Lord of the Rings does; that its dilemmas would have been as recognizable and as gripping.

One way in which power corrupts those who exercise it and even those who merely seek to do so is by giving them incentives to blind themselves to the possible immorality of their actions. Yet it is not obvious that there is a way to renounce the use of power completely. As in my prior posts, I conclude, therefore, with a reminder of the importance of the instruments we have developed to limit both the scope and the duration of the power any one person as able to wield. Of particular importance to this post is constitutionalism enforced by independent courts. An entrenched constitution provides a set of (partly) moral constraints on the exercise of power, which if effectively enforced ought to limit the damage that morally negligent or even wilfully blind politicians are able to inflict on those whom they govern. Like other power-constraining instruments, this one is far from being perfect, but it is better ― a good deal better, sometimes ― than nothing.

Bad Poetry

“A statute is written to entrap meaning, a poem to escape it.” So writes Hillary Mantel in Bring Up the Bodies. That’s true ― normally. But some statutes are in fact written to escape meaning rather than to capture it. They are usually bad statutes, and often bad poetry. What was first mooted as the Charter of Secularism, then became the Charter of Québec Values, and has now become Bill no. 60: Charter affirming the values of State secularism and religious neutrality and equality between women and men, and providing a framework for accommodation requests ― which, following André Pratte, I will from now on refer to, for brevity and clarity’s sake, as the Charter of Shame ― is a case in point.

I have criticized the Charter of Shame repeatedly (my posts on its various versions are collected here), arguing that it was unjust, illiberal, discriminatory, and indeed reminiscent of some (early) Nazi laws. All of these criticisms remain in force. The bill that Bernard Drainville finally presented yesterday differs only in minor ways from the proposals made public a couple of months ago. But having the text of the bill (a pdf document is available here) makes it possible to examine not only the substance but the form which the PQ’s xenophobia has taken.

The bill’s very first clause is a muddle:

In the pursuit of its mission, a public body must remain neutral in religious matters and reflect the secular nature of the State, while making allowance, if applicable, for the emblematic and toponymic elements of Québec’s cultural heritage that testify to its history.

But the real question, all long, has been what it means to “remain neutral in religious matters.” Does it, for instance, mean not having town council meetings open with prayers? What if the prayer, as the Québec Court of Appeal has held, is not really a religious exercise but an element of Québec’s cultural heritage? Can a prayer really be that? The bill does nothing to answer these questions ― it is not meant to.

Consider next the Charter of Shame’s most discussed and most controversial provision, the ban on public employees wearing religious symbols. Mr. Drainville used little drawings to explain that it is meant to apply to the Muslim veil or the yarmulke, as well to large crosses, but not to small crosses, or crescent or star of David pendants. But a bill cannot use pitcograms ― it has to find a verbal formula to convey meaning. They say that an image is worth a thousand words, but clause 5 of the Charter of Shame makes do with just 33:

In the exercise of their functions, personnel members of public bodies must not wear objects such as headgear, clothing, jewelry or other adornments which, by their conspicuous nature, overtly indicate a religious affiliation.

What meaning does it convey though? Does a hijab have a “conspicuous nature”? Perhaps to Mr. Drainville it does. To those less fearful of people who look differently from themselves, it might not. To an Islamist fanatic, it is not the hijab but an uncovered head that is conspicuous. A court called upon to interpret this provision will not adopt a fanatic’s viewpoint ― but must it adopt Mr. Drainville’s? Conversely, a small cross of the sort that many Christians surely “overtly indicates a religious affiliation,” and ― depending on just how it is worn ― it can easily be visible. Who says it is not conspicuous?

Another well-publicized requirement of the Charter of Shame is the ban on full face veils that applies both to public employees and to those receiving public services. But does it? Clause 7 provides that “[p]ersons must ordinarily have their face uncovered when receiving services from personnel members of public bodies” (emphasis mine), and its second paragraph specifically contemplates the possibility of “accommodation.” Presumably, Mr. Drainville is not quite heartless enough to throw niqab-wearing women out of emergency rooms, but reading this bill, we can hardly tell.

And so it goes on, from fudge to equivocation to understatement. Will the obligations imposed by the Charter of Shame apply to those in the private sector who do business with the government? If the government so decides if “warranted by the circumstances” (clause 10). What will happen to employees who refuse to take off a religious symbol? They’ll get a talking to (clause 14). And what then? Will they be fired? Silence.

It is a staple of formal accounts of the Rule of Law that making law public is likely to make it, if not substantively better, then at least less bad, because legislators do not like to make their bad intentions clear. Yet we know that this is not always so; openly iniquitous laws are sometimes enacted. But it is true often enough. And so with the Charter of Shame: it is iniquitous enough, and yet in many ways it dares not proclaim the discrimination it works openly.

It is indeed a statute written to escape its own meaning. It is poetry, poetry of the worst kind, poetry that gives the Vogons’ a run for its money. It must not become law.

Hornblower and the Oath

I have just come across an excellent illustration of the complex ― I am tempted to say schizophrenic ― relationship between our constitutional law and the monarchy, which is at the heart of the litigation about the constitutionality of the reference to thee Queen in the Canadian citizenship oath. On the one hand, as Justice Morgan explains in his decision in McAteer v. Canada (Attorney General), 2013 ONSC 5895 holding the oath constitutional (which I summarized here), and as Philippe Lagassé further explains, the Queen symbolizes the institution of the monarchy, which, in turn, symbolizes Canada’s constitution ― including its values of freedom, equality, and the Rule of Law. On the other hand, for the applicants in McAteer, and for many other Canadians, the Queen is primarily the kindly old lady whose portraits the federal government is obsessed with hanging all over the place; and this, naturally, raises questions about why exactly this particular old lady, kindly though she is, should be so important to our citizenship and our constitution.

So here is the wonderful illustration of this dichotomy that I wanted to share with you. It comes from, of all places, C.S. Forester’s Hornblower and the Atropos (for those who do not know, one of a long series of novels about a naval officer, Horatio Hornblower, set during the Napoleonic wars). After having been presented to His Majesty George III, Captain Hornblower reflects on the difference between his own feelings about this kindly old gentleman on a throne, and those of his wife:

Hornblower himself fought for his country; it might be better said that he fought for the ideals of liberty and decency against the unprincipled tyrant who ruled across the Channel; the hackneyed phrase “for King and Country” hardly expressed his feelings at all. If he was ready to lay down his life for his King that really had no reference to the kindly pop-eyed old gentleman with whom he had been speaking this morning; it meant that he was ready to die for the system of liberty and order that the old gentleman represented. But to Maria the King was representative of something other than liberty and order; he had received the blessing of the Church; he was somebody to be spoken about with awe.

Now, I doubt that Stephen Harper and the members of his government, much less other Canadians, and least of all the applicants in McAteer, attach a great significance to the monarch’s anointment. However, what they share with Maria Hornblower is that they think of her first and foremost as an actual human being ― not as a legal entity or a constitutional symbol.

This conception, Justice Morgan and prof. Lagassé tell us, is not legally correct. It is, in my view, not correct as a matter of political values ― my own monarchism is like Hornblower’s. But as I have argued in my comment on the McAteer decision, the real issue in considering the constitutionality of the citizenship oath is whether it should matter at all which legal and political conception of the Queen is correct ― whether it is reasonable or fair “to expect laypersons to understand the subtleties of Crown law which, as prof. Lagassé notes, seem beyond the understanding even of some judges.”

What the Hornblower passage tells us is that the views of applicants in McAteer are not just a product of a few hypertrophied consciences, as Justice Morgan seems to suggest. They belong to a very old current of thought, albeit now inflected by very different values than those which originally shaped it. (These egalitarian values, indeed, are closer to those of the rather anachronistic Hornblower than of his wife.) And, judging by its portrait fixation, the current government is ill-positioned to argue that these views are not entitled to concern and respect.

How Power Corrupts II

In my last post, I used The Lord of the Rings to explore the meaning of Lord Acton’s dictum ― “power tends to corrupt and absolute power corrupts absolutely.” There is another novel, similar in many ways, though perhaps not superficially, to The Lord of the Rings, from which we might also learn something about the corrupting effects of power. It is Mikhail Bulgakov’s The Master and Margarita.

For those who have not read it, The Master and Margarita is a double narrative. The main story is that of the devil’s visit to Moscow one spring week in the early 1930s, and that of two lovers whose paths he crosses, the Master and Margarita of the title. But within the main story there is a second one, ostensibly a novel that the Master has written, about Pontius Pilate and Yeshua Ha-Nozri, Jesus, which takes place one spring week 19 centuries earlier.

The crucial sentence about power is uttered by Yeshua as he is being interrogated by Pilate:

All power is violence done to people. There will come a time when there will be no power, neither that of the Caesars nor any other. Man will pass into a kingdom of truth and justice, where there will be no need for power.*

These are the words which earn Yeshua his death sentence. By the time he uttered them, Pilate, though initially hostile, was becoming convinced of his innocence and inclined to let him go. No longer. Pilate is now much too afraid that any leniency towards what might ― and, in the paranoid climate of the reign of Tiberius, inevitably will ― be interpreted as treason and lèse-majesté. Pilate thunders “[t]here has never been, there is not, and there never will be a power greater or better for men than the power of emperor Tiberius!” ― and goes on to sign Yeshua’s death warrant.

Pilate’s behaviour illustrates one corrupting effect of power ― the fear it breeds, in both those who wield and are afraid of losing it, and in those who are subject to and are afraid of being crushed by it. Pilate represents power, and power always worries about it challengers. Pilate is also subject to the absolute, unforgiving, vicious power of the emperor. And, though fearless in battle (as indeed he makes a point of telling us), he is scared out of his wits, and condemns a man whom he knows to be innocent, only to go on and say, desperately, that “cowardice is the worst of all the vices.”

But Yeshua’s words point to another form of corruption that power works. Power, he says, is violence. And violence corrupts the person who engages in it. It is often said that the death penalty demeans not only the person being killed, but also, albeit in a somewhat different way, the executioner (just by way of example, see the famous words of Justice Blackmun, in Callins v. Collins, 510 U.S. 1141 (dissenting from denial of certiorari): “The path the Court has chosen lessens us all.”) And the death penalty is, of course, only the most extreme form of the violence that the state can inflict on a human being, and that it will inevitably inflict on human beings. The exercise of power is, inevitably, the exercise of coercion, which stains or takes something (innocence? kindness? the capacity for empathy?) from the person engaged in it.

And it will not do to argue that some exercises of power at least are legitimate, say because they conform to some theory of justice that reasonable people ought to accept. Never mind that reasonable people disagree about what such a theory of justice might look like, to the point that, as Jeremy Waldron once put in during a seminar, “we have theories of justice coming out of our ears.” Suppose there were such a theory. But the fact that reasonable people ought to accept it doesn’t change the fact that some people are not reasonable, and the best and most just power will still be doing violence to them. This is not to say that we can or ought to get rid of power altogether. The kingdom of truth and justice which Yeshua expected has not come, and so far as we can tell is not about to. But the fact that the exercise of power is necessary does not negate its corrupting effects.

That said, it is also true that these effects can be reduced and checked. Limiting the time during which one is able to exercise power is one way of doing so. Limiting the scope of power any one person is able to exercise is another. Subjecting power to law is a third. As some Rule of Law theorists, especially prof. Waldron, argue, the subjection of power to law makes it more respectful of human dignity ― less brutal, less violent. Good law, no more than good intentions or a good heart, does not fully protect against the corruption that power works. But it just might make the evils we must put up with tolerable.

* The translation is my own; the word Bulgakov uses, власть, can mean either “power” or “government.” It is also the word which is used to render Lord Acton’s dictum in Russian.

UPDATE: I have just come across a sentence by David Post, in this article, which very nicely captures what I have been trying to say about power and violence:

“Collective action,” … is another way to denote the use of coercive force to bind some portion of the polity to act in ways that others think necessary for the common good. (1458)

How Power Corrupts

Over at Bleeding Heart Libertarians, Bas van der Vossen has a post asking what is it exactly that we mean when we say, with Lord Acton, that “[p]ower corrupts and absolute power corrupts absolutely.” As he shows, the meaning of Lord Acton’s dictum is not quite clear. Prof. van der Vossen suggests three possibilities ― each of them, in his view, unsatisfactory.

One is that “to say that power corrupts is to say that power makes people worse persons.” But does it? People might lose their idealism in power, and might act badly while wielding power ― but “[t]he corrupting effects of power seem to disappear once the power goes as well.” They seem not to become permanently worse individuals. Another possibility is that power only gives people an opportunity to act on their bad impulses and desires ― whether we all have those or power actually attracts those who have more than their fair share. But if so, then power doesn’t actually corrupt ― it only reveals pre-existing rot. Finally, it might be that power “invokes and amplifies various psychological biases and heuristics in ways that are dangerous.” It neither makes people worse nor merely reveals their bad sides ― it “strengthen[s] the worst in us.” But this seems to be a “limited” sort of corruption, and it’s not clear what “absolute power corrupts absolutely” might mean in this context.

Yet, as prof. van der Vossen says, “[m]ost people think [Lord] Acton touched upon something of real importance.” Why? To help us understand, we could do worse than to turn to The Lord of the Rings, which is, in no small part, a meditation on the corrupting effects of power ― and which, probably not coincidentally, also happens to have mass appeal. And to understand The Lord of the Rings, and Tolkien’s thinking on the ill-effects of power, we could do worse than to turn to Tom Shippey’s book J.R.R. Tolkien: Author of the Century. (Seriously, it is a fantastic book. If you like Tolkien, read it.)

Prof. Shippey notes that Tolkien’s critics have argued that, although the Ring of Power is said to “turn[] everything to evil, including its wearers, [so that] no one … can be trusted to use it” (114), some characters ― Frodo, of course, but also Bilbo and Sam ― do in fact use it, without apparent ill-effect. This point is similar to prof. van der Vossen’s objection to the “power makes you a worse person” interpretation of Lord Acton’s dictum.

Prof. Shippey’s response to it is to say

that the use of the Ring is addictive. One use need not be disastrous on its own, but each use tends to strengthen the urge for another. The addiction can be shaken off in early stages (which explains Bilbo and Sam), but once it has taken hold, it cannot be broken by will-power alone.

As with the Ring, so with other forms of power, including political power. Politicians, in democracies, do not wield that much of it ― they are restrained by the law, by public opinion, by interest groups, and so on. And then, more often than not, they are forced to leave office, whether by term limits, by the voters, or by rebels in their own parties. So, like the Hobbits who only use the Ring a few times, they do not really become addicted; addiction might start (as it does in Sam, when, having put on the Ring, he briefly fantasizes about being “Samwise the Strong, Hero of the Age”), but it can be stopped in its tracks when the politician leaves office.

Another point that is relevant here is that, as Tolkien and prof. Shippey make clear, it matters how one gets and uses the Ring. Gollum gets it by violence, and he is unquestionably “corrupted”, terminally so as it turns out, though even he, when weaned off of his addiction, shows signs of becoming a somewhat better person. Bilbo, by contrast, starts his ownership of the Ring by taking pity on Gollum, which Frodo later does too. The suggestion is that pity and kindness make a person more resistant to the corruption of the Ring, though not impervious. Note that it is not good intentions that matter. Gandalf and Galadriel tell Frodo that their good intentions would be of no avail against the Ring’s ill-effects, and Boromir demonstrates it. What matters is actual kindness “in the moment.” (Bilbo surely, and Frodo almost certainly, had no far-reaching intentions at all when they each took pity on Gollum.)

This too, I think, is relevant to politics. It seems plausible that those politicians who are fundamentally decent and kind people ― not those, mind you, who are full of intentions so good that the end justifies the means! ― are less subject to the corrupting effects of power ― but that does not mean that they escape them altogether.

For a further point to be made here is that it is not the case that, as some critics whom prof. Shippey discusses have contended, the “good guys” emerge unscathed from the War of the Ring. And, in particular, we know that all those who have worn and used the Ring are in need of healing. Bilbo and Frodo go to the Undying Lands, and Frodo tells Sam that his “time will come” too. Frodo, to be sure, was hurt in a physical sense, during the fight on Weathertop, and also by Gollum. But Bilbo and Sam weren’t, yet they also must go. They are not corrupt if we take corrupt to mean “evil,” but they are if we take it to mean “broken” ― which, indeed is what the etymological meaning of the word ‘corrupt’ is (according to the OED, it ultimately derives from the from the Latin cor– “altogether” and rumpere “break”). Yet note that Sam doesn’t realized that something is wrong with Frodo ― he is shocked when Frodo tells him he is about to leave. And he certainly doesn’t think that there is anything wrong with himself.

And similarly, it is not all that clear that politicians are not corrupted by their exercise of power. Of course, as prof. van der Vossen says, a politician who authorized espionage programmes will not, in retirement, go about snooping on his neighbours. But that does not mean that “the corrupting effect of power … disappear once power goes.” They are more subtle than that. A retired politician might not be particularly nosy, but how many of them are anywhere near as idealistic as they were when they took office (not all are, of course, even then, but many are). How many of them are not somewhere on the way to accepting that the end justifies the means? Decency, humility, and limits on the power one gets to wield limit the corruption, but they probably do not eliminate it.

In Memoriam, Boris Strugatsky

Boris Strugatsky died on Monday in Saint-Petersburg, aged 79. The Guardian has an obituary which conveys something of his and his brother Arkady’s importance to Russian culture. The Strugatsky brothers are―are, since the books remain―among my favourite writers. I want to say something about them here. I have sometimes mentioned science-fiction on this blog, especially here and here, though not always seriously. But the Strugatskys were masters of philosophical science-fiction, who did some very serious thinking on political (and also moral) philosophy, so as you will see, I am not straying off-topic and writing about them.

Though they wrote about many things, from satires on bureaucracy such as The Tale of the Troika to meditations on life, the universe, and everything such as Definitely Maybe (the Russian title of which translates as A Billion Years before the End of the World) and Roadside Picnic, perhaps their most famous novel (and the only one that seems easily accessible on Amazon, including on Kindle), which was made into the movie Stalker by Tarkovsky. But one of their recurrent themes was intervention by one civilization into the affairs of another. This, obviously, is political philosophy, and very topical too, given the events of the last couple of years in Libya, Syria, and elsewhere (and so many other places before).

One virtue of the Strugatskys’ oeuvre is that they look at intervention, and ask the question of its permissibility, from many different angles. They look at representatives of an advanced, benevolent civilization (the Earth’s, as they dream it in some not very distant future) thrust by choice or accident in the midst of repression and despair of a dictatorship, in Hard to Be a God and Prisoners of Power (the Russian title translates as The Inhabited Island). They look at a representative of a civilization apparently mired in misery and war who is brought to the advanced and benevolent―and to him, incomprehensible and hostile―Earth, in The Kid from Hell. And then they look at the representatives of the Earth’s advanced and benevolent civilization, used to hurrying progress of those less fortunate than their own, confronting first the possibility and then the certitude of an even more advanced civilization apparently trying to hurry the progress of their own, in Beetle in the Anthill and The Time Wanderers (the Russian title translates as The Waves Extinguish the Wind).

Another virtue of the Strugatskys’ reflection on this topic is that they leave the reader free to work out answers for him- or herself. Their books are ambiguous―frustratingly so sometimes, but it is good frustration. If there is one thing about which they had no doubts, it is the importance of thinking for oneself. They were content to ask questions―brutally difficult questions―and did not seek to impose answers.

Their books are good reads―sometimes haunting, sometimes vivid, full of appreciation for the mystery of the universe. Sometimes hilarious, though the humour is often sardonic. If you prefer getting your philosophy in the shape of good literature rather than dry disquisitions, do try to read them. As Goethe’s Mephistopheles pointed out, Grau, teurer Freund, ist alle Theorie/Und Grün des Lebens gold’ner Baum―all theory, my friend, is grey, and green the golden tree of life.

Life will be a little more grey though, without the Strugatskys.