What John Stuart Mill Got Wrong About Freedom

Graham Tomlin wrote a piece for Prospect, upon which I comment and whence comes the title of this post. Always the deconstructivist curmudgeon, it seems, I agree with Tomlin’s assertion that Mill was wrong, but so is Tomlin.

In a nutshell, Tomlin makes the argument that the Ancients had it right, and the Enlightenment derailed it. Tomlin wants to return to the days of yore when the artifice of character and virtue ruled the day, a time when men were men and women were women. A return to the good ole days.

Tomlin waxes poetic, nostalgiac to a time that never was, a time that the prescription was to chase windmills of virtue and amass the currency of character. But character as currency is more unstable than Bitcoin.

Don Quixote Tilting Windmills

Is there anything more capricious than the held perception of character? Is there anything more futile than chasing the vicious cycle of virtue, always searching for that deserving true Scotsman?

Character is a term especially bandied about by political Conservatives, although Progressives tend to play the #MeToo game because it’s a game of appearances. It doesn’t matter what you do; it only matters what it looks like you do.

And even this is a game. Time and again politicians ‘slip’ (read: get caught), they apologise for the temporary lapse, and ask for forgiveness. Whether or not they keep their position, they are still forgiven and may return to their position learning their lesson (read: don’t get caught again). Let’s just dispense with the formalities.

Percaption is reality

In Plato’s day, he holds out four moral virtues to pursue: courage, temperance, justice, and prudence.

Courage: the resolve to act virtuously, especially when it is most difficult

Temperance: moderation in all things; the middle path

Justice: to render every man what’s due

Prudence: application of practical wisdom

Courage seems to be caught in an infinite loop, as it essentially says to exercise temperance, justice, and prudence in the face of danger. Typically, courage is associated with heroic acts, though I fail to see the connection to rescuing a baby from a burning building with any of these other virtues. Perhaps the definition has morphed over the years. Everyone needs a hero. Only Zeus needs a Hera.

Temperance is to find the middle ground: eat but not too much; drink but not too much; rape but not too much; kill but not too much. Is there really a middle ground for all things? In traversing a canyon, shouldn’t one stay close to the edge—or what about sidewalks? Is it temperance that led US President Donald Trump to declare that Nazis and white supremacists. are ‘some very fine people‘, or does he just lack prudence?

Justice is the constant and perpetual will to render to every man his due.

Justinian — Institutes 1.1

Justice I’ve written about at some length so I won’t spend any additional time here.

Common sense is not so common.

Voltaire

Prudence, which advises one to use common sense, relies on a rare jewel. As Voltaire wrote, « le sens commun est fort rare ».

Perhaps I’m just too hard on people, but I find that most people are pretty dimwitted outside of some small area of focus, and I have to agree with Voltaire’s position on common sense. This is why as an economist, I find it so difficult to accept the homo economicus assertion so key for modern microeconomic theory and why behavioural economics has become a bigger deal in the past 30 years as more and more social scientists realise that people are predictably irrational.

Thanks but no thanks. There’s got to be a better way.

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Is it a gift?

This is a continuation of my previous post—with a touch of TMI…

I was divorced some time ago, and I was ‘accused’ of giving gifts to another woman—a woman a met after I was served papers for the divorce. After her attorney asked if I had ever given any gifts to anyone, the judge scoffed when I asked for a definition of gift so that I could respond honestly. The judge actually rolled her eyes and made a comment that my approach was not going to work. So without an established definition, I replied, ‘No. I never gave any gifts to anyone.’ She was fine with the response. In fact, she already had made up here mind in the same manner when a person pleading the Fifth in the US is automatically seen as having something to hide and therefore guilty of something. It’s a fanciful notion that taking the Fifth somehow eliminates the concern in question, but the entire jurisprudence system is arbitrary and virtually capricious—despite supposedly being a deontological endeavour. In practice, the goal of organised Law is to elevate process over justice so as to at least give the appearance that it is fair and otherwise meaningful.

Lady Justice

So, is it possible to give a gift? Is it possible to know this? Is it possible to know the intent of anything?


Gift (n): a thing given willingly to someone without payment

https://en.oxforddictionaries.com/definition/gift

If gift is defined as a something given willingly and without payment, what is the scope of without payment, and what constitutes payment? Is altruism even possible? Is this possible to know? Again, can anyone know the intent of another? Can anyone truly know the intent of their own actions? Does the unconscious or past experience obviate intent?

In my case, I gave a woman some—what might colloquially be called—gifts. There were no strings explicitly attached? Does this mean there were no strings attached? I had a romantic interest in this woman. Clearly, this courting game involved gift-given in return for some expected payoff at some time in the future.

What if I had given one of these gifts to a stranger on the street—perhaps a homeless person? Would that now be a gift? What if I was in a foreign place with a nil probability of encountering this person ever again and nobody witnessed the transaction and I would never tell another soul about it? Would this be a gift?

I suppose if I had no notion of karma, whether the Eastern variety or the Western Heaven-oriented variety, and it gave me no hormonal benefits relative to dopamine, serotonin, and oxytocin, I’d buy it.

So, accuse me of being pedantic, and you’ve made my point. We only want to employ language until the point it complies with our notion of our sense of truth. But it’s nothing more than this.

…and Justice for All

I’ve been out of sorts as of late, too busy to be contributing to this blog. Abstract philosophy, as Geuss notes, is a field for the comfortably idle. I’ve been in the midst of a divorce, and it’s not that I don’t think about the abstract, but my focus is pulled toward the mundane. The US court system comes to mind. I’ve already served on several juries, so I understand how pathetically that side is structured; I’ve been of the claimant/petitioner side and the defence side, and now I am a respondent. I’ve never been an attorney or barrister, nor have I been a judge, but I’ve known some of each, and it’s really a blind faith they have in the system—as well as a paycheque (let’s be honest here)—that keeps them going. As Upton Sinclair once noted, ‘It is difficult to get a man to understand something when his salary depends upon his not understanding it’. Between this and escalating commitment, this poor excuse for a system is going nowhere fast.

“It is difficult to get a man to understand something when his salary depends upon his not understanding it.” — Upton Sinclair

I don’t even believe there is such thing as Justice, let alone some ability to systematise it. As I mentioned in my last post, the system is constructed to prioritise consistency over outcome and favour deontology over consequentialism with just a smidgen of virtue ethics for good measure, but it’s all still just smoke…… and mirrors. It’s theatre—procedure for procedure’s sake. I guess that Foucault may have been right about the Power bit, but there’s more nuance than that.

Meantime, I am trapped in this flawed system trying to navigate between Scylla and Charybdis. If I’m not out by the end of the month, come in to rescue me.

—Decidedly not a fan.

Justice or nonsense?

Why should justice be the foundation of a society, and why not something else, say, honour or valour or wealth? What do we mean when we say justice? Do you mean the same thing as me? Dating myself to be sure, but would a Klingon from the Star Trek universe share your definition? So what is justice anyway?

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‘Justice is the constant and perpetual will to render to every man his due. Jurisprudence is the knowledge of divine and human affairs and knowledge of what is just and what is unjust’, or so writes Justinian in Institutes 1.1 in 533 CE.

“Iustitia est constans et perpetua voluntas ius suum cuique tribuens.  Iuris prudentia est divinarum atque humanarum rerum notitia, iusti atque iniusti scientia.”

This is Justinian’s answer to the question: What is justice? In his Philosophy and Real Politics, Geuss relates that ‘justice is the constant and unflagging will to render to each person what is due to him’ (or perhaps ‘what he’s entitled to’), and therein lies the rub: what exactly is one entitled to?

Geuss goes on to point out that entitlement was contingent to one’s place in society. Citizens were entitled to some things, resident aliens another, and slaves, pretty much nothing at all. In fact, giving a slave more than s/he was entitled to would be considered unjust, as it would be considered to be undeserved. As Geuss writes, ‘that to treat a slave as if he or she had any entitlements would be a gross violation of the basic principles of justice’. Of course, you are thinking, post-Enlightenment ‘all men are created equal’, or so the saying goes.

US-Camp_x-ray_detainees-Guantanamo-Bay-Jan-11-2002-Phot-Shane-T-McCoy-US-Navy-Creative-Commons-513x239[1]In practice, it’s been easy to sidestep the application of justice by redefining a certain group to be outside of some protected group. During the illegal aggression by the United States against Middle Eastern countries that resulted in extraordinary rendition of civilians spirited off to Guantánamo Bay, Cuba, off the coast of the United States and outside of their jurisdiction, their acting regime declared that the detainees were not people, strictly speaking, and as such were not subject to the protections afforded to people, therefore they had no access to justice.

“Justice is the first virtue of social institutions, as truth is of systems of thought.”
— John Rawls, A Theory of Justice

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Hermione’s Time Turner

The ancient Greeks had a different idea of justice, so perhaps we just need to break out our trusty time turner to see what Aristotle had to say about it.

Here Aristotle rather equates the notion of justice to that of equality, but that begs the question: what equality? as we understand that equality comes in a variety of colours, so I won’t belabour the point any further here.

Instead of asking about justice, why don’t we focus on the root of the word, just? This yields the following definition:

Just: (adj) based on or behaving according to what is morally right and fair

This brings us into the normative domain of morality, fairness, and reason, so it’s not much to work with—basically, we are in the realm of opinion defended by rhetoric.

For ‘all’ intents and purposes, we’ve got four forms of justice. We’ve been focused on the distributive type, but there are also procedural, restorative, and retributive varieties. In many cases, not just one form of justice is satisfying and so multiple varieties are deemed, well, just.

  • Distributive or economic justice is about fairness in how things are distributed, about getting a fair share.
  • Procedural justice is also about fairness, but it’s more about fair play, an even playing field.
  • Restorative justice is about compensating for an injustice, about restoring some perceived balance.
  • Retributive justice is about punishment—retribution.

A problem arises when we try to quantify and measure justice. Consider distributive justice: If two people work in a field and each cultivates 50% of the crop, are each entitled to 50% of the yield? If the cultivated land was the ‘property’ of some other landowner, what portion would s/he be entitled to? All of it? Some of it? None of it?

What about the court system? Procedural justice comes into play here. Should a wealthy person have access to better attorneys than a poor person? Is this just? The poor person may argue no, but the wealthy person may argue that s/he earned the ability to pay for a better lawyer, so s/he is entitled to this benefit.

Restorative justice sounds simple at the surface. If I steal a loaf of bread, wouldn’t returning the loaf (or, at least, a similar loaf) be restorative—no harm, no foul? Many people will argue that this is not good enough. Balance has not been restored.

This is where retributive justice comes into play. Retributive justice is a poorly veiled euphemism for vengeance. This is where Hammurabi‘s code (or Leviticus‘)  eye for an eye—but not Matthew‘s turn the other cheek rendition—comes in. Let’s not get into Nietzsche’s take on forgiveness as being unjust and part of slave morality.

Keep in mind that in Hammurabi’s code, as with Roman law, justice was relative: Given eyes, (Nº 196) ‘If a man put out the eye of a nobleman (amelu), his eye shall be put out’, yet (Nº 198) ‘If he puts out the eye of a freedman or breaks the bone of a freedman, he shall pay one gold mina’.

Through all of this, we are still left wondering: just what is justice besides some vague notion constructed solely to preserve the status quo.

Sources:

  1. http://legalhistorysources.com/LisbonRights/JusticeDefinitions.htm
  2. http://changingminds.org/explanations/trust/four_justice.htm