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Deidre McCloskey and the Enrichment of the World

In Arts & Letters, Austrian Economics, Book Reviews, Books, Creativity, Economics, Fiction, Historicism, History, Humane Economy, Humanities, liberal arts, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Philosophy, Politics, Property, Scholarship, Western Civilization, Western Philosophy on October 26, 2016 at 6:45 am

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The following excerpt is adapted from my review of Deirdre McCloskey’s book Bourgeois Equality; the original review, which appeared in the Quarterly Journal of Austrian Economics, is available here.

If it’s true that Wayne Booth inspired Deirdre McCloskey’s interest in the study of rhetoric, then it’s also true—happily, in my view—that McCloskey has refused to mimic Booth’s programmatic, formulaic methods and boorish insistence on prosaic succinctness. Bourgeois Equality is McCloskey’s third volume in a monumental trilogy that began with The Bourgeois Virtues (2006) and Bourgeois Dignity (2010), each published by the University of Chicago Press. This latest volume is a Big Book, alike in kind but not in theme to Jacques Barzun’s From Dawn to Decadence (2000), Camille Paglia’s Sexual Personae (1990), or Herald Berman’s Law and Revolution (1983) and Law and Revolution II (2006). It’s meandering and personal, blending scholarship with an essayistic style that recalls Montaigne or Emerson.

McCloskey’s elastic arguments are shaped by informal narrative and enlivened by her plain and playful voice. At times humorous, rambling, and deliberately erratic, she gives the distinct impression that she’s simply telling a story, one that happens to validate a thesis. She’s having fun. Imagine Phillip Lopate articulating economic history. McCloskey is, in this regard, a latter-day Edward Gibbon, adopting a mode and persona that’s currently unfashionable among mainstream historians, except that she’s more lighthearted than Gibbon, and unashamedly optimistic.

Writing with an air of confidence, McCloskey submits, contra Thomas Piketty, that ideas and ideology—not capital accumulation or material resources—have caused widespread economic development. Since 1800, worldwide material wealth has increased and proliferated; the quality of life in poor countries has risen—even if it remains unequal to that of more prosperous countries—and the typical human being now enjoys access to the food, goods, services, medicine, and healthcare that, in earlier centuries, were available to only a select few in the richest parts of the globe. The transition from poverty to wealth was occasioned by shifting rhetoric that reflected an emerging ethical consensus. The rhetorical-ethical change involved people’s “attitudes toward other humans” (p. xxiii), namely, the recognition of shared experience and “sympathy,” as Adam Smith stated in The Theory of Moral Sentiments. Attributing human progress to ideas enables McCloskey to advocate the norms and principles that facilitated economic growth and social improvement (e.g., class mobility and fluidity) while generating extensive prosperity. Thus, her project is at once scholarly and tendentious: a study of the conditions and principles that, in turn, she promotes.

She argues that commercialism flourished in the eighteenth century under the influence of ideas—such as “human equality of liberty in law and of dignity and esteem” (p. xxix)—that were packaged in memorable rhetoric and aesthetics. “Not matter, mainly, but ideas” caused the Great Enrichment (p. 643). In other words, “[t]he original and sustaining causes of the modern world […] were ethical, not material,” and they included “the new and liberal economic idea of liberty for ordinary people and the new and democratic social idea of dignity for them” (p. xxxi). This thesis about liberty and dignity is clear and unmistakable if only because it is repetitive. McCloskey has a habit of reminding readers—in case you missed her point the first, second, or fifty-seventh time around—that the causes of the Industrial Revolution and the Great Enrichment were ideas, not “narrowly economic or political or legal changes” (p. 470). She maintains, to this end, that the Scottish Enlightenment succeeded in combining the concepts of liberty and dignity into a desirable form of equality—not equality of outcomes, of course, but of opportunity and treatment under the law. And the Scottish model, to her mind, stands in contradistinction to the French example of centralized, top-down codification, command, planning, and design.

A perennial villain lurks in the pages of her history: the “clerisy,” which is an “appendage of the bourgeoisie” (p. 597) and often dubbed “the elite” in regular parlance. McCloskey calls the clerisy “the sons of bourgeois fathers” (p. xvii) and “neo-aristocratic” (p. 440). The clerisy includes those “artists, intellectuals, journalists, professionals, and bureaucrats” who resent “the commercial and bettering bourgeoisie” (p. xvi). The clerisy seeks, in different ways at different times, to extinguish unfettered competition with exclusive, illiberal, irrevocable grants and privileges that are odious to free society and offensive to the rights of average consumers. “Early on,” says McCloskey, referring to the period in Europe after the revolutionary year 1848, “the clerisy began to declare that ordinary people are misled in trading, and so require expert protection and supervision” (p. 609). The clerisy since then has been characterized by paternalism and a sense of superiority.

Because the clerisy is shape-shifting, assuming various forms from time to time and place to place, it’s a tough concept to pin down. The word “clerisy” does not appear in the book’s index to permit further scrutiny. By contrast, McCloskey’s general arguments are easy to follow because the book is separated into parts with questions as their titles; subparts consisting of onesentence headings answer those questions.

In a massive tour de force such as this, readers are bound to take issue with certain interpretive claims. Historians will find McCloskey’s summaries to be too breezy. Even libertarians will accuse her of overlooking manifest wrongs that occurred during the periods she surveys. My complaints are few but severe. For instance, McCloskey is, I believe, either careless or mistaken to announce that, during the nineteenth and early twentieth century, “under the influence of a version of science,” in a territory that’s never specifically identified, “the right seized upon social Darwinism and eugenics to devalue the liberty and dignity of ordinary people, and to elevate the nation’s mission above the mere individual person, recommending, for example, colonialism and compulsory sterilization and the cleansing power of war” (p. xviii).

Let’s hope that it’s innocent negligence rather than willful distortion that underlies this odd, unqualified, categorical assertion. Adam Cohen’s Imbeciles (2016) and Thomas C. Leonard’s Illiberal Reformers (2016) describe how, in the United States, social Darwinism and eugenics were adopted primarily, though not exclusively, by the Left, not the Right. These recent books come on the heels of several scholarly treatments of this subject: Thomas M. Shapiro’s Population Control Politics (1985), Philip R. Reilly’s The Surgical Solution (1991), Joel Braslow’s Mental Ills and Bodily Cures (1997), Wendy Kline’s Building a Better Race (2001), Stefan Kuhl’s The Nazi Connection (2002), Nancy Ordover’s American Eugenics (2003), Christine Rosen’s Preaching Eugenics (2004), Christina Cogdell’s Eugenic Design (2004), Gregory Michael Dorr’s Segregation’s Science (2008), Paul A. Lombardo’s edition A Century of Eugenics in America (2011), and Alexander Minna Stern’s Eugenic Nation (2016). These represent only a small sampling.

Is McCloskey unware of these texts? Probably not: she reviewed Leonard’s book for Reason, although she did so after her own book reached press. At any rate, would she have us believe that Emma Goldman, George Bernard Shaw, Eugene Debs, Marie Stopes, Margaret Sanger, John Maynard Keynes, Lester Ward, and W. E. B. Du Bois were eugenicist agitators for the political Right? If so, she should supply her definition of “Right,” since it would go against commonly accepted meanings. On the matter of colonialism and war, self-identified members of the Old Right such as Albert Jay Nock, John Flynn, and Senator Robert Taft advocated precisely the opposite of what McCloskey characterizes as “Right.” These men opposed, among other things, military interventionism and adventurism. The trouble is that McCloskey’s muddying of the signifiers “Left” and “Right” comes so early in the book—in the “Exordium”— that readers may lose trust in her, question her credibility, and begin to suspect the labels and arguments in her later chapters.

Other undefined terms only make matters worse, ensuring that McCloskey will alienate many academics, who, as a class, are already inclined to reject her libertarian premises. She throws around the term “Romanticism” as if its referent were eminently clear and uncontested: “a conservative and Romantic vision” (p. xviii); “science fiction and horror fiction [are] … offshoots of Romanticism” (p. 30); “[Jane Austen] is not a Romantic novelist … [because] [s]he does not take Art as a model for life, and does not elevate the Artist to a lonely pinnacle of heroism, or worship of the Middle Ages, or adopt any of the other, antibourgeois themes of Novalis, [Franz] Brentano, Sir Walter Scott, and later Romantics” (p. 170); “Romanticism around 1800 revived talk of hope and faith and a love for Art or Nature or the Revolution as a necessary transcendent in people’s lives” (p. 171); “Romantic candor” (p. 242); “the late eighteenth-century Romantic literary critics in England had no idea what John Milton was on about [sic], because they had set aside the rigorously Calvinist theology that structured his poetry” (p. 334); “the nationalist tradition of Romantic writing of history” (p. 353); “Romantic … hostilities to … democratic rhetoric” (p. 510); “[i]n the eighteenth century … the idea of autonomy triumphed, at any rate among the progressive clerisy, and then became a leading Romantic idea, á la Victor Hugo” (p. 636); and “the Romantic conservative Thomas Carlyle” (p. 643).

To allege that the clerisy was “thrilled by the Romantic radicalism of books like Mein Kampf or What Is to Be Done” (p. xviii) is also recklessly to associate the philosophies of, say, Keats or Coleridge or Wordsworth with the exterminatory fantasies of Hitler and Lenin. McCloskey might have guarded against this misleading conflation by distinguishing German idealism or contextualizing Hegel or by being more vigilant with diction and definition. Her loose language will leave some experts (I do not profess to be one) scratching or shaking their heads and, more problematic, some non-experts with misconceptions and misplaced targets of enmity. One imagines the overeager and well-meaning undergraduate, having read Bourgeois Equality, setting out to demonize William Blake or destroy the reputation of Percy Shelly, about whom Paul Cantor has written judiciously.2 Wouldn’t originality, imagination, creativity, and individualism—widely accepted markers of Romanticism—appeal to McCloskey? Yet her unconditionally derogatory treatment of Romanticism—which she portrays as a fixed, monolithic, self-evident thing—undermines aspects of that fluctuating movement, period, style, culture, and attitude that are, or seem to be, consistent with her Weltanschauung.

But I protest too much. These complaints should not diminish what McCloskey has accomplished. Would that we had more grand studies that mapped ideas and traced influences across cultures, communities, and eras. McCloskey takes the long view, as we all should. Her focus on rhetoric is crucial to the future of liberty if, given the technological advances we have made, the “work we do will be more and more about decisions and persuading others to agree, changing minds, and less and less about implementation by hand” (p. 498). Equally significant is her embrace of humanomics—defined as “the story [of] a complete human being, with her ethics and language and upbringing” (p. xx)—which materializes in casual references to Henrik Ibsen’s plays, challenges to the depiction of John Milton “as a lonely poet in a garret writing merely to the starry heavens” (p. 393), analyses of Jane Austen’s novels, and portrayals of Elizabethan England. Her historical and narrative arc enables us to contextualize our own moment, with all of its troubles and possibilities.

Best of all, her book is inspiring and exhilarating and brimming with rousing imperatives and moving calls to action. “Let us, then,” she says at one point, “not reject the blessings of economic growth on account of planning or pessimism, the busybody if wellintentioned rationalism of some voices of the French Enlightenment or the adolescent if charming doubts of some voices of the German Romantic movement, fashionable though both attitudes have long been among the clerisy. As rational optimists, let us celebrate the Great Enrichment, and the rhetorical changes in freer societies that caused it” (p. 146). At another point she encourages her audience to guard against “both cynicism and utopianism” (p. 540), and elsewhere to heed “trade-tested cooperation, competition, and conservation in the right mix” (p. 523). These little nudges lend her credibility insofar as they reveal her true colors, as it were, and demonstrate that she is not attempting—as is the academic wont—to hide her prejudices and conceal her beliefs behind pretended objectivities.

Poverty is relative and, hence, permanent and ineradicable, despite McCloskey’s claim that we can “end poverty” (p. 8). If, tomorrow, we woke up and the wealth of each living person were magically to multiply twentyfold—even fiftyfold—there would still be people at the bottom. The quality of life at the bottom, however, would be vastly improved. The current manifestation of global poverty shows how far we as a species have advanced in the last few centuries. McCloskey is right: We should pursue the ideas that accelerated and achieved human flourishing, that demonstrably brought people out of distress and destitution. Hard sciences and mathematical models are insufficient in themselves to convey the magnitude and splendor of these ideas and their accomplishments. Hence we should welcome and produce more books like McCloskey’s that undertake a “rhetorical-ethical Revaluation” to both examine and celebrate “a society of open inquiry,” one which not only “depends on rhetoric in its politics and in its science and in its economy,” but which also yields intellectual creativity and political freedom (p. 650). In McCloskey’s approach, economics and the humanities are not mutually exclusive; rather, they are mutually illuminating and, in fact, indispensably and inextricably tied. An economics that forsakes the dignity of the human person and his capacity for creativity and aesthetics does so at its own peril and to its own disgrace. All economics is, at its core, humanomics. We could do without the latter term if we understood the former.

REFERENCES

Barzun, Jacques. 2000. From Dawn to Decadence: 500 Years of Western Cultural Life, 1500 to the Present. New York: HarperCollins.

Berman, Harold J. 1983. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass.: Harvard University Press, 2003.

——. 2006. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. Cambridge, Mass.: Harvard University Press.

Braslow, Joel. 1997. Mental Ills and Bodily Cures: Psychiatric Treatment in the First Half of the Twentieth Century. Berkeley and Los Angeles: University of California Press.

Cantor, Paul. 1997. “The Poet as Economist: Shelley’s Critique of Paper Money and the British National Debt,” Journal of Libertarian Studies 13, no. 1: 21–44.

Cantor, Paul, and Stephen Cox, eds. 2009. Literature and the Economics of Liberty. Auburn, Ala.: Ludwig von Mises Institute.

Cogdell, Christina. 2004. Eugenic Design. Philadelphia: University of Pennsylvania Press.

Cohen, Adam. 2016. Imbeciles. London: Penguin Press.

Dorr, Gregory M. 2008. Segregation’s Science. Charlottesville, Va.: University of Virginia Press.

Kline, Wendy. 2001. Building a Better Race. Berkeley and Los Angeles: University of California Press.

Kuhl, Stefan. 2002. The Nazi Connection. Oxford: Oxford University Press.

Leonard, Thomas C. 2016. Illiberal Reformers. Princeton: Princeton University Press.

Lombardo, Paul A. 2011. A Century of Eugenics in America. Bloomington, Ind.: Indiana University Press.

McCloskey, Deirdre. 2006. The Bourgeois Virtues. Chicago: University of Chicago Press.

——. 2010. Bourgeois Dignity. Chicago: University of Chicago Press.

Ordover, Nancy. 2003. American Eugenics. Minneapolis: University of Minnesota Press.

Paglia, Camille. 1990. Sexual Personae: Art and Decadence from Nefertiti to Emily Dickinson. New Haven, Conn.: Yale University Press.

Reilly, Philip R. 1991. The Surgical Solution. Baltimore: Johns Hopkins University Press.

Rosen, Christine. 2004. Preaching Eugenics. Oxford: Oxford University Press.

Shapiro, Thomas M. 1985. Population Control Politics. Philadelphia: Temple University Press.

Stern, Alexander Minna. 2016. Eugenic Nation. Berkeley and Los Angeles: University of California Press.

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The Moral Case for Property Rights

In Arts & Letters, Books, Conservatism, Economics, Ethics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Philosophy, Property, Scholarship, Western Civilization, Western Philosophy on March 9, 2016 at 8:45 am

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This review originally appeared here at the Library of Law and Liberty.

The James Madison Program in American Ideals and Institutions at Princeton University has become a hub of conservative constitutionalism and natural law theory, a forum where mostly likeminded scholars and public intellectuals can come together for constructive dialogue and critique. Directed by Robert P. George, the McCormick Professor of Jurisprudence at Princeton, the program has hosted established and emerging scholars alike. Adam MacLeod is one of the latter—a figure to watch, a fresh and tempered voice in the increasingly ideological field of jurisprudence and legal theory. During his James Madison fellowship, with the support and advice of his colleagues, MacLeod wrote Property and Practical Reason, his first book.

MacLeod frames his normative claims and pleas within the common law context. And he gives us his thesis in his crisp opening sentence: “This book makes a moral case for private property.” He adds that “institutions of private ownership are justified.”

That institutions of private ownership are now jeopardized is upsetting. Before the 18th century, it was simply taken for granted in most Western societies that private property rights incentivized both work and custodianship and served moral ends. Leaders of advanced nations understood that the opportunity to own land or goods motivated people to work; that work, in turn, contributed to the aggregate health of the community; and that once ownership was attained, owners preserved the fruits of their labor and likewise respected the fruits of others’ labor as having been dutifully earned. There were, of course, violations of these principles in Western societies, which is why the law protected and promoted private ownership.

Even absolute monarchs across Europe centuries ago understood the instinctual drive for personal ownership and, consequently, allowed their subjects to obtain at least qualified possession of land and real property. During the Enlightenment, however, philosophers such as John Locke awakened the Western intellect to the stark reality that private property rights were routinely violated or compromised by monarchs and sovereigns at the expense of morality and at odds with the natural law. Because humans own their bodies, Locke maintained, any object or land they removed or procured from nature, which God had provided humanity in common, was joined to those people, who, so long as no one else had a legitimate claim to such object or land, could freely enjoy a right of possession exclusive of the common rights of others.

It’s surprising that Locke isn’t mentioned in MacLeod’s defense of reason and private property, since Locke more than any other figure in the Western tradition—let alone the British tradition in which the common law emerged—made the reason-based case for the morality of private property ownership. “God,” Locke said, “who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience.” On this score MacLeod echoes Locke without giving him attention.

MacLeod advocates the type of mediated dominion of private ownership that, he says, existed at common law. Under the common law, he argues, dominion was mediated because it was restrained by the normative guides of “practical reasonableness.” He does not fully delineate what unmediated dominion looks like. But presumably it has something to do with “many contemporary accounts” that, he claims, “view property as an individual right” and facilitate an “atomization of private property” that’s “unnecessary and unhelpful.” An example might have polished off this point, since in the opening chapters it’s not always obvious to which property arrangement mediated dominion is allegedly superior.

He does, however, supply helpful examples of mediating private institutions under the common law: families and family businesses, religious associations such as churches or synagogues, civic associations, and other such cooperative forms that exercise modest control or otherwise influence a person’s claim to outright ownership. For instance, one’s community may reasonably insist that my absolute ownership of a weapon does not permit one’s use of that weapon to threaten or injure another except in self-defense. It may likewise restrict the profligate use of scarce resources, or the reckless use of intrinsically dangerous resources to the manifest detriment of one’s immediate neighbors.

The author submits that, under the common law, which illustrates constructive administration of property rights, private ownership is never total or unqualified but always subject to reasonable restraint as prescribed by custom and community. He intimates that one thing that makes private ownership reasonable is its promotion of reasonable behavior; the very reasonableness of private property is self-perpetuating. The owner of property who’s confident his ownership is legally honored and enforced will pursue future gain; as the number of such owners multiplies, the corporate prosperity of society increases.

MacLeod rejects consequentialist arguments for private property and seeks to justify private ownership on the basis of morality. He shows that private ownership is not just optimal by utilitarian standards but is practically reasonable and morally good.

In so arguing, he navigates around two anticipated criticisms: first that his defense of private property and promotion of common law standards and conditions are remedies in search of an illness, and second that beneath his proposed remedy is the sickness he wants to cure.

By discussing the work of Pierre-Joseph Proudhon, Jeremy Waldron, J. E. Penner, and Larissa Katz, among others, MacLeod proves he’s not remonstrating against straw men but engaging actual thinkers with real influence on our working perceptions of property rights. The problems he confronts are palpable: regulatory takings, trespass, taxation, riparian-right disputes, adverse possession, and waste, among others.

In depicting mediated dominion as a form of voluntary “plural ownership” that excludes state coercion, moreover, he reassures readers that a common law property regime does not contravene private ordering, despite the fact that the common law dates back to periods when English monarchs retained total and ultimate control of the land within their jurisdiction under the Doctrine of the Crown; forced owners to hold property rights in socage; confiscated property from rivals and dissidents; redistributed property in exchange for loyalty and political favors; and permitted and at times approved of slavery and villainy.

These unreasonable elements of the common law tradition do not square with the case that MacLeod makes for practical reasonableness; yet the common law tradition he invokes is sufficiently flexible and adaptive to modify or eradicate rules that perpetuate unreasonable practices and behaviors. He reminds us, too, that “slavery was for a long time unknown at common law, and its rise in positive law derogated common law rights and duties.” In other words, the rise of the English slave trade “is a story of lawmakers first departing from, then returning to, common law norms.”

Following if not synthesizing John Finnis and Joseph Raz, MacLeod recommends in the property-law context something akin to perfectionist liberalism and value pluralism. The pluralism championed by MacLeod involves multiplying the options for deliberating agents: the more room there is for rational choice, the more diverse and numerous are the opportunities to exercise human reason. These opportunities may be circumscribed by the morality of the community that is inherent in the rules that reflect basic values. The law is by nature coercive, but it is good to the extent it enables practical reason and restricts bad behavior, as determined by the net, collaborative efforts of non-state actors. MacLeod calls these combined actors members of “intermediary communities.”

The trope of individualism and community is for MacLeod a framing device for advocating mediated dominion as an incentivizing force for moral action. He skillfully and meticulously affirms that private ownership, which is conditional on the reasonable limitations established by collective norms, is reasonable not only for instrumental purposes (because it works well and facilitates constructive social relations) but also because it is good in itself. Summoning the commentary of Thomas Aquinas, William Blackstone, James Madison, Alexis de Tocqueville, Joseph Story, Georg Friedrich Hegel, F.A. Hayek, Neil MacCormick, Ronald Dworkin, Richard Epstein, and Robert P. George, MacLeod also manages to work in unexpected references to writers who do not immediately spring to mind as jurisprudents: Richard Weaver, Wendell Berry, Charles Murray, John Tomasi, and Milton Friedman. This range demonstrates the importance of property law across disciplines and in broad contexts.

To profit from this book you must, I think, hold in abeyance any assumptions or readymade generalizations you have about the nature and function of private property. You’d benefit as well from a prior familiarity with the field and discourse of property jurisprudence, not to mention the new natural law theories. I make this observation as an outsider myself. If you can’t immediately define terms like “usufruct,” either because you’ve never heard of them or because it’s been too long since you studied for a bar examination, you’ll likely need Black’s Law Dictionary and other resources close at hand as you piece through MacLeod’s rationale. Readers in other disciplines might find that the chapters presuppose an awareness of, say, the essentialist debate over whether exclusion or use defines property norms, or might question the meaning and import of “personalist” approaches to private property that emphasize the doctrines of positive liberty and personal autonomy.

Such disciplinary specificity isn’t a bad thing. One hopes, in fact, that it would motivate curious readers to undertake further study and inquiry. Yet specialization limits what a book can accomplish.

MacLeod exhibits a disposition to be philosophical rather than sociological, adopting as he does a neutral, academic tone free of animus and personal pique, arguing from logical deduction rather than concrete data or statistics. Whether this approach redounds to his advantage depends on what he wants to achieve. If he’s writing only for an academic audience of philosophers and political theorists, he’s succeeded admirably, but if his goal is to reach beyond the narrow confines of the academy, spreading his influence as widely as possible, he has fallen short. The prose is accessible to scholars and advanced graduate students, but the average lawyer will find no practical instruction in the book and might even question the at times challenging syntax and vocabulary that can obscure basic points. If economists ignore the book for its rejection of consequentialist arguments, however, it’s to their disadvantage.

No common reader, I’m afraid, will read this book from cover to cover, and that’s a pity because the subject is important, especially given the spread of eminent-domain abuse and the general embrace of egalitarianism, redistributivism, and Rawlsian notions of social justice by Americans today. The desire for private ownership is a primordial fact. We need more books and treatises that examine at a fundamental level how and why we alienate, possess, and exchange property. At around $100, Property and Practical Reason is prohibitively expensive for curious undergraduates, and also for courses in graduate studies. Moreover, the law schools may well ignore it due to its focus on abstract jurisprudence.

All that said, this book should be read—and will be, by the people who know about and are sympathetic to the work of the James Madison Program. Unfortunately, that’s not many people. Not enough, anyway. There’s no cottage industry for the philosophy of practical reasonableness. Yet there ought to be, and the reception of MacLeod’s work might tell us whether there can be. Those of a philosophical bent will delight not just in the conclusions MacLeod reaches, but in the way he reaches them: framing and reframing his sinuous arguments until his central theses become refrains. This reviewer found it a delightfully industrious, hard-won defense of private property, and well worth the high sticker price.

What is a Condominium?

In Law, Property on February 17, 2016 at 8:45 am

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Condominiums are creatures of statute and did not exist at common law, although they have an ancient history. They are common-property arrangements. Each owner within a condominium association owns an individual unit but also possesses shared ownership of common areas with every other owner of a unit within the community.

Community associations regulated by restrictive covenants are widespread in every state in the United States. These associations typically reserve certain spaces within the community for common areas such as swimming pools, tennis courts, gardens, playgrounds, or other recreational facilities or uses that each member of the association subsidizes with his or her respective homeowner-association dues.

The law has for centuries treated such covenants as contracts. Sir William Blackstone, in his Commentaries on the Laws of England, surmised that a “covenant also, contained in a deed, to do a direct act or to omit one, is another species of express contracts, the violation or breach of which is a civil injury.” On this view, covenants may regulate the actions and behaviors of those who submit to them even if those actions and behaviors are only indirectly related to the physical property contemplated by the covenants.

Today’s covenants for condominiums may include restrictions on renting or other uses (e.g., they may prohibit the keeping of pets or require that a unit not be used for business purposes), impose obligations (such as proper maintenance of the unit and payment of assessments or dues), and institute sanctions such as fines or penalties for the violations of any terms of the covenant.

The association takes the form of a nonprofit corporation or other corporate entity, and membership in the association is accomplished by holding a deed to a lot within the community. All fifty states in the United States have statutory laws dealing with the creation and regulation of condominiums.

El negocio sucio de la recogida pública de basuras

In Austrian Economics, Emerson, Essays, Libertarianism, Philosophy, Property on January 13, 2016 at 8:45 am

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Translated by and available here at Mises Mispano. Publicado originalmente el 14 de octubre de 2015. Traducido del inglés por Mariano Bas Uribe. El artículo original se encuentra aquí.

Han pasado casi diez años desde que el Wall Street Journal mostrara el Instituto Mises y afirmara que Auburn era un lugar ideal para estudiar las ideas libertarias y la tradición austriaca. No sé cuánto ha cambiado desde entonces, pero llegué a Auburn esperando un santuario del libre mercado, un verdadero refugio donde las ideas de Menger y Mises y Hayek estuvieran en el ambiente y estuvieran embebidas en la mayoría de la gente que no fuera miembro de la facultad de Auburn e incluso a algunos que lo fueran.

Una vez establecido en Auburn, me di cuenta de que había sido idealista e ingenuo. Incluso antes de que los medios nacionales publicaran la historia del policía que habló contra las cuotas de multas y arrestos de su departamento, incluso antes de que la ciudad de Auburn expulsara a Uber con duras regulaciones para su autorización, incluso antes de que Mark Thornton señalara la maldición del rascacielos en el pueblo, estaba el tema de mi cubo de basura.

Compre mi casa a una empresa de mudanzas, habiendo sido asignado el anterior propietario a un nuevo cargo en otra ciudad. Este propietario tenía prisa por mudarse. Antes de dejar el pueblo, llevó junto con su familia el cubo de basura al lado de la casa, lejos de la calle, donde el recogedor rechazaba tomarlo. Habían llenado el cubo con basura: comida, papel, cajas de cartón, pañales sucios y otros desperdicios. Había tanta basura en el cubo que la tapa no se cerraba del todo. Parecía una boca bostezando. La casa estuvo en el mercado durante unos ocho meses antes de que la comprara y supongo que el cubo se quedó ahí, junto a la casa, todo el tiempo. Naturalmente, había llovido durante los últimos ocho meses, así que, con su tapa medio abierta, estaba lleno de basura mojada y parásitos sin cuento. Y apestaba.

La ciudad disfruta de un virtual monopolio sobre la recogida de basuras: cobra sus tarifas con la factura del agua y alcantarillado de la ciudad. Las pocas empresas recogedoras de basuras en el pueblo atienden sobre todo a restaurantes y negocios: entidades que simplemente no pueden esperar una semana a la recogida y necesitan un proveedor de servicios capaz de vaciar contenedores enteros llenos de basura. La ciudad sí permite a los residentes renunciar a sus servicios de recogida, pero esto solo oculta su suave coacción con una ilusión de opción del consumidor.

Las cláusulas de salida son maliciosas precisamente debido a la impresión de que son inocuas, si no generosas. El derecho contractual se basa en los principios de asentimiento mutuo y acuerdo voluntario. Sin embargo, las cláusulas públicas de salida privan a los consumidores de volición y poder negociador. Distorsionan la relación contractual natural de una parte inversora, el gobierno, con un poder que la otra parte no puede disfrutar. No contratar los servicios no es una opción y el gobierno es el proveedor por defecto que establece las reglas de negociación: la baraja forma un mazo que va contra el consumidor antes de que la negociación pueda empezar.

La responsabilidad, además, recae en el consumidor para deshacer un contrato al que se ha visto obligado, en lugar de en el gobierno para proporcionar servicios de alta calidad a tipos competitivos para mantener el negocio del consumidor. Las cláusulas de salida hacen difícil al consumidor acabar su relación con el proveedor público y obligan a los competidores potenciales a operar en una situación de manifiesta desventaja.

Mi mujer y yo llamamos al ayuntamiento tratando de conseguir un cubo nuevo. Ninguna limpieza y esterilización podrían quitar su olor al cubo actual. No podíamos mantener el cubo dentro del garaje por ese olor opresivo. Dejamos mensajes de voz a diferentes personas en diferentes departamentos del ayuntamiento, pidiendo un nuevo cubo y explicando nuestra situación, pero nadie nos devolvió las llamadas. No había ninguna atención a clientes similar al que tendría una empresa privada. Después de todo había poco peligro de perdernos como clientes: el ayuntamiento era al proveedor del servicio para prácticamente todos los barrios de la ciudad, debido a la dificultad que tenían las empresas privadas para abrirse paso en un mercado controlado por el gobierno. Estábamos en ese momento atrapados por las ineficiencias y la falta de respuesta del ayuntamiento. Con mucha persistencia, mi mujer acabó consiguiendo hablar con un empleado del ayuntamiento. Sin embargo, se le informó que no podíamos conseguir un cubo nuevo si el nuestro no se rompía o robaba. Eso apestaba.

Con el tiempo descubrí otros inconvenientes de nuestro servicio público de basuras. Durante las vacaciones, cambiaban los calendarios de recogida. Cuando mi mujer y yo vivíamos en Atlanta y usábamos una empresa privada de recogida de basura, sus calendarios no cambiaban nunca. Nuestras recogidas eran siempre puntuales. Nuestros basureros eran amables y fiables porque, si no lo eran, podía contratar otros nuevos que aparecerían en mi calle a la mañana siguiente con sonrisas brillantes en sus caras.

Es bastante sencillo seguir un calendario alterado por vacaciones, así que eso hicimos en Auburn, pero los basureros rechazaron seguir dicho calendario. Después de Acción de Gracias, cuando la basura tiende a cumularse, pusimos nuestro cubo en la calle según el calendario. Lo mismo hicieron nuestros vecinos. Pero nadie recogió nuestra basura. Toda nuestra calle lo intentó la semana siguiente, el día indicado, y nadie se llevó la basura. Un vecino preocupado llamó al ayuntamiento y pudimos arreglar la embrollada situación, pero no sin dedicar tiempo y energías que podrían haberse dirigido a cosas mejores.

Cuando era niño, a mi hermano y a mí se nos encarga todos los años podar los árboles y arbustos y eliminar las malas hierbas que crecían junto al estanque de nuestro jardín. Podíamos  apilar ramas y troncos aserrados de árboles y otros desperdicios en el bordillo de nuestra calle, junto con bolsas de hierba cortada y nuestros basureros, que trabajaban para una empresa privada, siempre recogían estas cosas sin preguntas ni quejas. Se lo agradecíamos tanto que a veces les dejábamos sobres con dinero extra para expresar nuestro agradecimiento.

Sin embargo en Auburn una vez fui incapaz de añadir una bolsa de basura adicional en nuestro cubo, que estaba lleno, así que llevé el cubo a la calle y puse junto a él la bolsa adicional. Luego entré a hacerme el café matutino cuando de repente un camión de recogida aparcó junto a mi cubo. Miré por la ventana mientras el basurero descendía del camión, sacudía la cabeza, se subía de nuevo al camión, tomaba papel y bolígrafo y empezaba a escribir. Lo siguiente que supe es que estaba redactando una denuncia por una posible infracción. Resultó ser una mera advertencia, en  letras mayúsculas, de que la próxima vez que hiciera algo tan indignante como poner nuestra basura para la recogida sin usar el cubo, tendría ciertas repercusiones (he olvidado cuáles).

Cuando pienso en las cosas que los basureros recogían de nuestra calle en Atlanta (una puerta vieja, un lavabo roto, una segadora que no funcionaba) me maravillo de que el ayuntamiento te obligue a comprar etiquetas en la Oficina de Hacienda si quieres que recojan en la calle cosas como secadores, calentadores, neveras o microondas. Pero sigo siendo optimista y no solo porque Joseph Salerno venga al pueblo para ocupar la recién dotada cátedra John V. Denson en el Departamento de Economía de la Universidad de Auburn.

Soy optimista porque veo algún cambio positivo. Recientemente organizamos una venta de garaje y descubrimos, dos días antes del gran día, que el ayuntamiento obligaba a un permiso para esos eventos. Esta vez, cuando llamamos al ayuntamiento para solicitar el prmiso obligatorio para ventas de garaje, recibimos buenas noticias: esos permisos ya no eran necesarios siempre que realizáramos la venta en nuestro propio espacio de calle. Aunque sea pequeño, es un progreso. Tal vez se extienda a otros sectores de nuestra pequeña comunidad local. Hasta entonces, ¡al ataque!

The Classical Liberalism of Ralph Waldo Emerson

In America, American History, American Literature, Arts & Letters, Austrian Economics, Books, Economics, Emerson, Essays, Ethics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Property, Western Philosophy on January 7, 2015 at 8:45 am

Allen 2

“The less government we have, the better.”[1] So declared Ralph Waldo Emerson, a man not usually treated as a classical liberal. Yet this man—the Sage of Concord—held views that cannot be described as anything but classical liberal or libertarian. His is a pastoral libertarianism that glorifies nature as a source of insight and inspiration for those with a poetical sense and a prophetic vision.

None other than Cornel West, no friend of the free market, has said that “Emerson is neither a liberal nor a conservative and certainly not a socialist or even a civic republican. Rather he is a petit bourgeois libertarian, with at times anarchist tendencies and limited yet genuine democratic sentiments.”[2] “Throughout his career,” Neal Dolan adds, “Emerson remained fully committed to the Scottish-inflected Lockean-libertarian liberalism whose influence we have traced to his earliest notebooks.”[3] An abundance of evidence supports this view. Dolan himself has written an entire book on the subject: Emerson’s Liberalism (University of Wisconsin Press, 2009). Emerson extolled the “infinitude of the private man”[4] and projected a “strong libertarian-liberal emphasis”[5] in his essays and speeches. He was not an anarchist: he believed that “[p]ersonal rights, universally the same, demand a government framed on the ratio of the census” because “property demands a government framed on the ratio of owners and of owning.”[6] Nevertheless, he opined that “[e]very actual State is corrupt”[7] and that, if the people in a given territory were wise, no government would be necessary: “[W]ith the appearance of the wise man, the State expires. The appearance of character makes the State unnecessary.”[8] One need only look to one of Emerson’s most famous essays, “Self Reliance,” for proof of his libertarianism.

“Self‑Reliance” is perhaps the most exhilarating expression of individualism ever written, premised as it is on the idea that each of us possesses a degree of genius that can be realized through confidence, intuition, and nonconformity. “To believe your own thought, to believe that what is true for you in your private heart is true for all men,” Emerson proclaims, “that is genius.”[9]

Genius, then, is a belief in the awesome power of the human mind and in its ability to divine truths that, although comprehended differently by each individual, are common to everyone. Not all genius, on this view, is necessarily or universally right, since genius is, by definition, a belief only, not a definite reality. Yet it is a belief that leads individuals to “trust thyself”[10] and thereby to realize their fullest potential and to energize their most creative faculties. Such self‑realization has a spiritual component insofar as “nothing is at last sacred but the integrity of your own mind”[11] and “no law can be sacred to me but that of my nature.”[12]

According to Emerson, genius precedes society and the State, which corrupt rather than clarify reasoning and which thwart rather than generate productivity. “Wild liberty develops iron conscience” whereas a “[w]ant of liberty […] stupefies conscience.”[13] History shows that great minds have challenged the conventions and authority of society and the State and that “great works of art have no more affecting lesson for us than this. They teach us to abide by our spontaneous impression with good‑humored inflexibility then most when the whole cry of voices is on the other side.”[14] Accordingly, we ought to refuse to “capitulate to badges and names, to large societies and dead institutions.”[15] We ought, that is, to be deliberate, nonconformist pursuers of truth rather than of mere apprehensions of truth prescribed for us by others. “Whoso would be a man,” Emerson says, “must be a noncomformist.”[16]

Self‑Interest and Conviction

For Emerson as for Ayn Rand, rational agents act morally by pursuing their self‑interests, including self‑interests in the well‑being of family, friends, and neighbors, who are known and tangible companions rather than abstract political concepts. In Emerson’s words, “The only right is what is after my constitution, the only wrong what is against it.”[17] Or: “Few and mean as my gifts may be, I actually am, and do not need for my own assurance or the assurance of my fellows any secondary testimony.”[18] It is in everyone’s best interest that each individual resides in his own truth without selling off his liberty.[19] “It is,” in other words, “easy to see that a greater self-reliance must work a revolution in all the offices and relations of men.”[20]

It is not that self‑assurance equates with rightness or that stubbornness is a virtue; it is that confidence in what one knows and believes is a condition precedent to achieving one’s goals. Failures are inevitable, as are setbacks; only by exerting one’s will may one overcome the failures and setbacks that are needed to achieve success. Because “man’s nature is a sufficient advertisement to him of the character of his fellows,”[21] self-reliance enables cooperative enterprise: “Whilst I do what is fit for me, and abstain from what is unfit, my neighbor and I shall often agree in our means, and work together for a time to one end.”[22] Counterintuitively, only in total isolation and autonomy does “all mean egotism vanish.”[23]

If, as Emerson suggests, a “man is to carry himself in the presence of all opposition, as if everything were titular and ephemeral but he,”[24] how should he treat the poor? Emerson supplies this answer:

Do not tell me, as a good man did to‑day, of my obligation to put all poor men in good situations. Are they my poor? I tell thee, thou foolish philanthropist, that I grudge the dollar, the dime, the cent, I give to such men as do not belong to me and to whom I do not belong. There is a class of persons to whom by all spiritual affinity I am bought and sold; for them I will go to prison, if need be; but your miscellaneous popular charities; the education at college of fools; the building of meeting‑houses to the vain end to which many now stand; alms to sots; and the thousandfold Relief Societies;—though I confess with shame I sometimes succumb and give the dollar, it is a wicked dollar which by and by I shall have the manhood to withhold.[25]

These lines require qualification. Emerson is not damning philanthropy or charity categorically or unconditionally; after all, he will, he says, go to prison for certain individuals with whom he shares a special relationship. “I shall endeavor to nourish my parents, to support my family, to be the chaste husband of one wife,” he elaborates.[26] Emerson is, instead, pointing out, with much exhibition, that one does not act morally simply by giving away money without conviction or to subsidize irresponsible, unsustainable, or exploitative business activities.

It is not moral to give away a little money that you do not care to part with or to fund an abstract cause when you lack knowledge of, and have no stake in, its outcome. Only when you give money to people or causes with which you are familiar,[27] and with whom or which you have something at stake, is your gift meaningful; and it is never moral to give for show or merely to please society. To give morally, you must mean to give morally—and have something to lose. The best thing one can do for the poor is to help them to empower themselves to achieve their own ends and to utilize their own skills—to put “them once more in communication with their own reason.”[28] “A man is fed,” Emerson says, not that he may be fed, but that he may work.”[29] Emerson’s work ethic does not demean the poor; it builds up the poor. It is good and right to enable a poor man to overcome his conditions and to elevate his station in life, but there is no point in trying to establish absolute equality among people, for only the “foolish […] suppose every man is as every other man.”[30] The wise man, by contrast, “shows his wisdom in separation, in gradation, and his scale of creatures and of merits as wide as nature.”[31] Such separation and gradation are elements of the beautiful variety and complexity of the natural, phenomenal world in which man pursues his aims and accomplishes what he wills.

Dissent

Emerson famously remarks that a “foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”[32] Much ink has been spilled to explain (or explain away) these lines. I take them to mean, in context, that although servile flattery and showy sycophancy may gain a person recognition and popularity, they will not make that person moral or great but, instead, weak and dependent. There is no goodness or greatness in a consistency imposed from the outside and against one’s better judgment; many ideas and practices have been consistently bad and made worse by their very consistency. “With consistency,” therefore, as Emerson warns, “a great soul has simply nothing to do.”[33]

Ludwig von Mises seems to have adopted the animating, affirming individualism of Emerson, and even, perhaps, Emerson’s dictum of nonconformity. Troping Emerson, Mises remarks that “literature is not conformism, but dissent.”[34] “Those authors,” he adds, “who merely repeat what everybody approves and wants to hear are of no importance. What counts alone is the innovator, the dissenter, the harbinger of things unheard of, the man who rejects the traditional standards and aims at substituting new values and ideas for old ones.”[35] This man does not mindlessly stand for society and the State and their compulsive institutions; he is “by necessity anti‑authoritarian and anti‑governmental, irreconcilably opposed to the immense majority of his contemporaries. He is precisely the author whose books the greater part of the public does not buy.”[36] He is, in short, an Emersonian, as Mises himself was.

The Marketplace of Ideas

To be truly Emersonian you may not accept the endorsements and propositions here as unconditional truth, but must, instead, read Emerson and Mises and Rand for yourself to see whether their individualism is alike in its affirmation of human agency resulting from inspirational nonconformity. If you do so with an inquiring seriousness, while trusting the integrity of your own impressions, you will, I suspect, arrive at the same conclusion I have reached.

There is an understandable and powerful tendency among libertarians to consider themselves part of a unit, a movement, a party, or a coalition, and of course it is fine and necessary to celebrate the ways in which economic freedom facilitates cooperation and harmony among groups or communities; nevertheless, there is also a danger in shutting down debate and in eliminating competition among different ideas, which is to say, a danger in groupthink or compromise, in treating the market as an undifferentiated mass divorced from the innumerable transactions of voluntarily acting agents. There is, too, the tendency to become what Emerson called a “retained attorney”[37] who is able to recite talking points and to argue the predictable “airs of the bench”[38] without engaging the opposition in a meaningful debate.

Emerson teaches not only to follow your convictions but to engage and interact with others lest your convictions be kept to yourself and deprived of any utility. It is the free play of competing ideas that filters the good from the bad; your ideas aren’t worth a lick until you’ve submitted them to the test of the marketplace.

“It is easy in the world,” Emerson reminds us, “to live after the world’s opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude.”[39] We can stand together only by first standing alone. Thus, “[w]e must go alone.”[40] You must “[i]nsist on yourself”[41] and “[s]peak the truth.”[42] You must channel your knowledge and originality to enable others to empower themselves. All collectives are made up of constituent parts; the unit benefits from the aggregate constructive action of motivated individuals. Emerson teaches us that if we all, each one of us, endeavor to excel at our favorite preoccupations and to expand the reach of our talent and industry, we will better the lives of those around us and pass along our prosperity to our posterity.

[1] Ralph Waldo Emerson, “Politics,” in Emerson: Essays & Poems (The Library of America, 1996), p. 567.

[2] Cornel West, The American Evasion of Philosophy (University of Wisconsin Press, 1989), p. 40.

[3] Neal Dolan, “Property in Being,” in A Political Companion to Ralph Waldo Emerson, edited by Alan M. Levine and Daniel S. Malachuk (The University Press of Kentucky, 2011), p. 371.

[4] Ralph Waldo Emerson, correspondence in The Journals and Miscellaneous Notebooks of Ralph Waldo Emerson, 16 vols., ed. William H. Gilman, Ralph H. Orth, et al. (Cambridge: Harvard University Press, 1960-1982). This quote comes from Vol. 7, p. 342.

[5] Neal Dolan, Emerson’s Liberalism (University of Wisconsin Press, 2009), p. 182.

[6] Emerson, “Politics,” at 560.

[7] Emerson, “Politics,” at 563.

[8] Emerson, “Politics,” at 568.

[9] Ralph Waldo Emerson, “Self-Reliance,” in Emerson: Essays & Poems (The Library of America, 1996), p. 259.

[10] Emerson, “Self-Reliance,” at 260.

[11] Emerson, “Self-Reliance,” at 261.

[12] Emerson, “Self-Reliance,” at 262.

[13] Emerson, “Politics” at 565-566.

[14] Emerson, “Self-Reliance,” at 259.

[15] Emerson, “Self-Reliance,” at 262.

[16] Emerson, “Self-Reliance,” at 261.

[17] Emerson, “Self-Reliance,” at 262.

[18] Emerson, “Self-Reliance,” at 263.

[19] Emerson, “Self-Reliance,” at 274.

[20] Emerson, “Self-Reliance,” at 275.

[21] Emerson, “Politics,” at 566.

[22] Emerson, “Politics,” at 567.

[23] Emerson, “Nature,” in Emerson: Essays and Poems, p. 10. The original reads “all mean egotism vanishes” rather than “vanish.”

[24] Emerson, “Self-Reliance,” at 262.

[25] Emerson, “Self-Reliance,” at 262-63.

[26] Emerson, “Self-Reliance,” at 273.

[27] “Consider whether you have satisfied your relations to father, mother, cousin, neighbor, town, cat, and dog,” Emerson says. Emerson, “Self Reliance,” at 274.

[28] Emerson, “Self-Reliance,” at 276.

[29] Emerson, “Nature,” at 13.

[30] Emerson, “Nature,” at 27.

[31] Emerson, “Nature,” at 27.

[32] Emerson, “Self-Reliance,” at 265.

[33] Emerson, “Self-Reliance,” at 265.

[34] Ludwig von Mises, The Anti-Capitalistic Mentality (Auburn: The Ludwig von Mises Institute, 2008), p. 51.

[35] Mises, The Anti-Capitalistic Mentality, at 51.

[36] Mises, The Anti-Capitalistic Mentality, at 51.

[37] Emerson, “Self-Reliance,” at 264.

[38] Emerson, “Self-Reliance,” at 264.

[39] Emerson, “Self-Reliance,” at 263.

[40] Emerson, “Self-Reliance,” at 272.

[41] Emerson, “Self-Reliance,” at 278.

[42] Ralph Waldo Emerson, “The Divinity School Address,” in Emerson: Essays & Poems (The Library of America, 1996), p. 77.

Is Hacking the Future of Scholarship?

In Arts & Letters, Books, Communication, Ethics, Historicism, History, Humanities, Information Design, Property, Scholarship on November 19, 2014 at 8:45 am

Allen 2

This piece originally appeared here in Pacific Standard in 2013.

Most attorneys are familiar with e-discovery, a method for obtaining computer and electronic information during litigation. E-discovery has been around a long time. It has grown more complex and controversial, however, with the rise of new technologies and the growing awareness that just about anything you do online or with your devices can be made available to the public. Emails, search histories, voicemails, instant messages, text messages, call history, music playlists, private Facebook conversations (not just wall posts)—if relevant to a lawsuit, these and other latent evidence, for better or worse, can be exposed, even if you think they’ve been hidden or discarded.

Anyone who has conducted or been involved with e-discovery realizes how much personal, privileged, and confidential information is stored on our devices. When you “delete” files and documents from your computer, they do not go away. They remain embedded in the hard drive; they may become difficult to find, but they’re there. Odds are, someone can access them. Even encrypted files can be traced back to the very encryption keys that created them.

E-discovery has been used to uncover registries and cache data showing that murderers had been planning their crimes, spouses had been cheating, perverts had been downloading illegal images, and employees had been stealing or compromising sensitive company data or destroying intellectual property. Computer forensics were even used to reveal medical documents from Dr. Conrad Murray’s computer during the so-called “Michael Jackson death trial.”

More information is good; it helps us to understand our universe and the people in it. The tracking and amassing of computer and electronic data are inevitable; the extent and details of their operation, however, cannot yet be known.

Computer forensics can teach you a lot about a person: the websites he visits, the people he chats with, the rough drafts he abandons, the videos he watches, the advertisements he clicks, the magazines he reads, the news networks he prefers, the places he shops, the profiles he views, the songs he listens to, and so on. It is fair to say that given a laptop hard drive, a forensic expert could nearly piece together an individual’s personality and perhaps come to know more about that person—secret fetishes, guilty pleasures, and criminal activities—than his friends and family do.

In light of this potential access to people’s most private activities, one wonders how long it will be until academics turn to computer forensics for research purposes. This is already being done in scientific and technology fields, which is not surprising because the subject matter is the machine and not the human, but imagine what it would mean for the humanities? If Jefferson had used a computer, perhaps we would know the details of his relationship with Sally Hemings. If we could get ahold of Shakespeare’s iPad, we could learn whether he wrote all those plays by himself. By analyzing da Vinci’s browsing history, we might know which images he studied and which people he interacted with before and during his work on the Mona Lisa—and thus might discover her identity.

There are, of course, government safeguards in place to prevent the abuse of, and unauthorized access to, computer and electronic data: the Wiretap Act, the Pen Registers and Trap and Trace Devices Statute, and the Stored Wired and Electronic Communication Act come to mind. Not just anyone can access everything on another person’s computer, at least not without some form of authorization. But what if researchers could obtain authorization to mine computer and electronic data for the personal and sensitive information of historical figures? What if computer forensics could be used in controlled settings and with the consent of the individual whose electronic data are being analyzed?

Consent, to me, is crucial: It is not controversial to turn up information on a person if he voluntarily authorized you to go snooping, never mind that you might turn up something he did not expect you to find. But under what circumstances could computer forensics be employed on a non-consensual basis? And what sort of integrity does computer or electronic information require and deserve? Is extracting data from a person’s laptop akin to drilling through a precious fresco to search for lost paintings, to excavating tombs for evidence that might challenge the foundations of organized religion and modern civilization, or to exhuming the bodies of dead presidents? Surely not. But why not?

We have been combing through letters by our dead predecessors for some time. Even these, however, were meant for transmission and had, to that end, intended audiences. E-discovery, by contrast, provides access to things never meant to be received, let alone preserved or recorded. It is the tool that comes closest to revealing what an individual actually thinks, not just what he says he thinks, or for that matter, how and why he says he thinks it. Imagine retracing the Internet browsing history of President Obama, Billy Graham, Kenneth Branagh, Martha Nussbaum, Salmon Rushdie, Nancy Pelosi, Richard Dawkins, Toni Morrison, Ai Weiwei, or Harold Bloom. Imagine reading the private emails of Bruno Latour, Ron Paul, Pope Francis, Noam Chomsky, Lady Gaga, Roger Scruton, Paul Krugman, Justice Scalia, or Queen Elizabeth II. What would you find out about your favorite novelists, poets, musicians, politicians, theologians, academics, actors, pastors, judges, and playwrights if you could expose what they did when no one else was around, when no audience was anticipated, or when they believed that the details of their activity were limited to their person?

This is another reason why computer and electronic data mining is not like sifting through the notes and letters of a deceased person: having written the notes and letters, a person is aware of their content and can, before death, destroy or revise what might appear unseemly or counter to the legacy he wants to promote. Computer and electronic data, however, contain information that the person probably doesn’t know exists.

More information is good; it helps us to understand our universe and the people in it. The tracking and amassing of computer and electronic data are inevitable; the extent and details of their operation, however, cannot yet be known. We should embrace—although we don’t have to celebrate—the technologies that enable us to produce this wealth of knowledge previously unattainable to scholars, even if they mean, in the end, that our heroes, idols, and mentors are demystified, their flaws and prejudices and conceits brought to light.

The question is, when will we have crossed the line? How much snooping goes too far and breaches standards of decency and respect? It is one thing for a person to leave behind a will that says, in essence, “Here’s my computer. Do what you want with it. Find anything you can and tell your narrative however you wish.” It is quite another thing for a person never to consent to such a search and then to pass away and have his computer scanned for revealing or incriminating data.

It’s hard to say what crosses the line because it’s hard to know where the line should be drawn. As Justice Potter Stewart said of hard-core pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Once scholars begin—and the day is coming—hacking devices to find out more about influential people, the courts and the academic community will be faced with privacy decisions to make. We will have to ask if computer and electronic data are substantially similar to private correspondence such as letters, to balance the need for information with the desire for privacy, to define what information is “private” or “public,” and to honor the requests of those savvy enough to anticipate the consequences of this coming age of research.

Amid this ambiguity, one thing will be certain: Soon we can all join with Princess Margaret in proclaiming, “I have as much privacy as a goldfish in a bowl.” That is good and bad news.

British Origins of American Estate and Land Law

In American History, Britain, Economics, History, Humanities, Law, Property on September 17, 2014 at 8:45 am

Allen 2

Estates and land are the foundation of property law in England and the United States.  After the Battle of Hastings in 1066, when William the Conqueror, or William I, became the King of England, he recognized that land ownership was essential to the governance of his kingdom.  Announcing himself owner of all English lands, he distributed property to those loyal to him. The recipients became “tenants”; the rent was called “services”; knights performed “services” on behalf of the king, thus earning their honorific title and their rights to certain lands.

William bestowed a special designation, tenant in chief, to those who were offered more land than they could use.  Everything necessary to survive and flourish at this time came from the land: food, water, shelter, building supplies and other equipment, and mineral resources.  Tenants, therefore, would parcel out tracts of their land to others in exchange for fees and services.  Recipients of the parceled tracts would parcel out smaller tracts of land, and this process of parceling would continue until the people living on the land had no rights to the land.

The result was that ownership in tracts of land became known as freehold or nonfreehold.  Interests in freehold tracts included fee simple estates, fee tale estates, and life estates; interests in nonfreehold tracts included periodic tenancies, terms, and tenancies at will.  These six categories of land ownership and title remain with us today.

Transcendental Liberty

In America, American History, Arts & Letters, Creativity, Emerson, Essays, Ethics, History, Humane Economy, Humanities, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Property, Rhetoric, Western Philosophy, Writing on January 15, 2014 at 8:45 am

Allen 2

This essay originally appeared here in The Freeman.

“The less government we have, the better.” So declared Ralph Waldo Emerson, a  man not usually treated as a classical liberal. Yet this man—the Sage of  Concord—held views that cannot be described as anything but classical liberal or  libertarian.

None other than Cornel West, no friend of the free market, has said that  “Emerson is neither a liberal nor a conservative and certainly not a socialist  or even a civic republican. Rather he is a petit bourgeois libertarian, with at  times anarchist tendencies and limited yet genuine democratic sentiments.” An  abundance of evidence supports this view. Emerson was, after all, the man who  extolled the “infinitude of the private man.” One need only look at one of  Emerson’s most famous essays, “Self Reliance,” for evidence of his  libertarianism.

“Self-Reliance” is perhaps the most exhilarating expression of individualism  ever written, premised as it is on the idea that each of us possesses a degree  of genius that can be realized through confidence, intuition, and nonconformity.  “To believe your own thought, to believe that what is true for you in your  private heart is true for all men,” Emerson proclaims, “that is genius.”

Genius, then, is a belief in the awesome power of the human mind and in its  ability to divine truths that, although comprehended differently by each  individual, are common to everyone. Not all genius, on this view, is necessarily  or universally right, since genius is, by definition, a belief only, not a  definite reality. Yet it is a belief that leads individuals to “trust thyself”  and thereby to realize their fullest potential and to energize their most  creative faculties. Such self-realization has a spiritual component insofar as  “nothing is at last sacred but the integrity of your own mind” and “no law can  be sacred to me but that of my nature.”

According to Emerson, genius precedes society and the State, which corrupt  rather than clarify reasoning and which thwart rather than generate  productivity. History shows that great minds have challenged the conventions and  authority of society and the State and that “great works of art have no more  affecting lesson for us than this. They teach us to abide by our spontaneous  impression with good-humored inflexibility then most when the whole cry of  voices is on the other side.” Accordingly, we ought to refuse to “capitulate to  badges and names, to large societies and dead institutions.” We ought, that is,  to be deliberate, nonconformist pursuers of truth rather than of mere  apprehensions of truth prescribed for us by others. “Whoso would be a man,”  Emerson says, “must be a noncomformist.”

Self-Interest and Conviction

For Emerson, as for Ayn Rand, rational agents act morally by pursuing their  self-interests, including self-interests in the well-being of family, friends,  and neighbors, who are known and tangible companions rather than abstract  political concepts. In Emerson’s words, “The only right is what is after my  constitution, the only wrong what is against it.” Or: “Few and mean as my gifts  may be, I actually am, and do not need for my own assurance or the assurance of  my fellows any secondary testimony.”

It is not that self-assurance equates with rightness, or that stubbornness  is a virtue; it is that confidence in what one knows and believes is a condition  precedent to achieving one’s goals. Failures are inevitable, as are setbacks;  only by exerting one’s will may one overcome the failures and setbacks that are  needed to achieve success.

If, as Emerson suggests, a “man is to carry himself in the presence of all  opposition, as if everything were titular and ephemeral but he,” how should he  treat the poor?  Emerson supplies this answer:

Do not tell me, as a good man did to-day, of my  obligation to put all poor men in good situations. Are they my poor? I tell  thee, thou foolish philanthropist, that I grudge the dollar, the dime, the cent,  I give to such men as do not belong to me and to whom I do not belong. There is  a class of persons to whom by all spiritual affinity I am bought and sold; for  them I will go to prison, if need be; but your miscellaneous popular charities;  the education at college of fools; the building of meeting-houses to the vain  end to which many now stand; alms to sots; and the thousandfold Relief  Societies;—though I confess with shame I sometimes succumb and give the dollar,  it is a wicked dollar which by and by I shall have the manhood to withhold.

These lines require qualification. Emerson is not damning philanthropy or  charity categorically or unconditionally; after all, he will, he says, go to  prison for certain individuals with whom he shares a special relationship. He  is, instead, pointing out, with much exhibition, that one does not act morally  simply by giving away money without conviction or to subsidize irresponsible,  unsustainable, or exploitative business activities. It is not moral to give away  a little money that you do not care to part with, or to fund an abstract cause  when you lack knowledge of, and have no stake in, its outcome. Only when you  give money to people or causes with which you are familiar, and with whom or  which you have something at stake, is your gift meaningful; and it is never  moral to give for show or merely to please society. To give morally, you must  mean to give morally—and have something to lose.

Dissent

Emerson famously remarks that a “foolish consistency is the hobgoblin of  little minds, adored by little statesmen and philosophers and divines.” Much ink  has been spilled to explain (or explain away) these lines. I take them to mean,  in context, that although servile flattery and showy sycophancy may gain a  person recognition and popularity, they will not make that person moral or great  but, instead, weak and dependent. There is no goodness or greatness in a  consistency imposed from the outside and against one’s better judgment; many  ideas and practices have been consistently bad and made worse by their very  consistency. “With consistency,” therefore, as Emerson warns, “a great soul has  simply nothing to do.”

Ludwig von Mises seems to have adopted the animating, affirming  individualism of Emerson, and even, perhaps, Emerson’s dictum of nonconformity.  Troping Emerson, Mises remarks that “literature is not conformism, but dissent.”  “Those authors,” he adds, “who merely repeat what everybody approves and wants  to hear are of no importance. What counts alone is the innovator, the dissenter,  the harbinger of things unheard of, the man who rejects the traditional  standards and aims at substituting new values and ideas for old ones.” This man  does not mindlessly stand for society and the State and their compulsive  institutions; he is “by necessity anti-authoritarian and anti-governmental,  irreconcilably opposed to the immense majority of his contemporaries. He is  precisely the author whose books the greater part of the public does not buy.”  He is, in short, an Emersonian, as Mises himself was.

The Marketplace of Ideas

To be truly Emersonian, you may not accept the endorsements and propositions  in this article as unconditional truth, but must, instead, read Emerson and  Mises and Rand for yourself to see whether their individualism is alike in its  affirmation of human agency resulting from inspirational nonconformity. If you  do so with an inquiring seriousness, while trusting the integrity of your own  impressions, you will, I suspect, arrive at the same conclusion I have  reached.

There is an understandable and powerful tendency among libertarians to  consider themselves part of a unit, a movement, a party, or a coalition, and of  course it is fine and necessary to celebrate the ways in which economic freedom  facilitates cooperation and harmony among groups or communities; nevertheless,  there is also a danger in shutting down debate and in eliminating competition  among different ideas, which is to say, a danger in groupthink or compromise, in  treating the market as an undifferentiated mass divorced from the innumerable  transactions of voluntarily acting agents. There is, too, the tendency to become  what Emerson called a “retained attorney” who is able to recite talking points  and to argue predictable “airs of opinion” without engaging the opposition in a  meaningful debate.

Emerson teaches not only to follow your convictions but to engage and  interact with others, lest your convictions be kept to yourself and deprived of  any utility. It is the free play of competing ideas that filters the good from  the bad; your ideas aren’t worth a lick until you’ve submitted them to the test  of the marketplace.

“It is easy in the world,” Emerson reminds us, “to live after the world’s  opinion; it is easy in solitude to live after our own; but the great man is he  who in the midst of the crowd keeps with perfect sweetness the independence of  solitude.” Let us stand together by standing alone.

Terms of Use, Privacy Policy, and Acceptable Use Policy: What are the Differences?

In Communication, Information Design, Law, Property, Rhetoric & Communication on January 8, 2014 at 8:45 am

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“Terms of use,” also called “terms of service,” are agreements between website owners and users of the website.  By consenting to the “terms of use,” a user manifests his or her assent to certain conditions in order to access the website; in some cases, accessing a website will itself constitute acquiescence to the restrictions and conditions explained in the “terms of use.” “Terms of use” may explain what will happen to someone who hacks into the website, may divest users of certain legal rights as a condition for use, or may detail the consequences of behaving or transacting in certain ways on the website. Social networks such as Facebook are notorious for frequently modifying their “terms of use,” and “terms of use” are often subject to criticism for their allegedly unfair contracting and bargaining practices and for concealing or obscuring information in shrinkwraps, browsewraps, and clickwraps.

A privacy policy is a disclosure regarding the information a website collects and how that information is used by the website owner.  Not all websites have privacy policies, but privacy policies are required of websites directed at children.  Websites containing health data for patients or banking and financial data for customers are also required to have and display privacy policies.  A privacy policy discloses what personal information is gathered by the website and states whether, for instance, a website uses cookies or targeted advertising, and whether the data collected by the website is shared with third parties.

Unlike “terms of use” or privacy policies, acceptable use policies generally are between employers and employees and govern the ways in which employees and other authorized users handle websites or networks of the employer.  The laws governing acceptable use policies are strict. For instance, acceptable use policies must be clear and made known to employees; they must also explain what sanctions are appropriate or applicable if the acceptable use policy is violated.

Premises Liability and Qualified Duties of Care

In America, Economics, Humanities, Jurisprudence, Law, Philosophy, Property on January 3, 2014 at 8:45 am

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The field of premises liability has to do with the potential tort liability of a landholder or landowner for injuries or damages sustained on his property.  Such liability is determined not by the legal status of the landholder or landowner, but by the legal status of the injured party.  For example, if the injured party is a trespasser, then the landholder or landowner could not have owed the injured party a duty of reasonable care because the landholder or landowner did not know or have reason to know of the trespasser’s presence on his property.  A “trespasser” is someone who, without the permission or consent of the landholder or landowner, enters or remains on the landholder’s or landowner’s property.  We say that the landholder or landowner does not owe a duty to unforeseeable trespassers, even if the property possesses dangerous conditions, because we believe that people should not be held accountable for the behavior of others that cannot be known or reasonably discovered.  If a reasonable person with ordinary intelligence could not infer the existence of Person X on the property, then that reasonable person cannot be made to suffer simply for acting reasonably; after all, we want to encourage reasonable behavior among acting agents within our society.

As with all areas of the law, there are exceptions to the rule that a landholder or landowner owes no duty to trespassers.  One such exception is called the “attractive nuisance doctrine,” which maintains that a reasonable landholder or landowner ought to be aware that certain conditions on the property might draw trespassers onto the property.  The classic example is a swimming pool that would seem attractive to children and, therefore, would likely lure children onto the property.  Another exception involves the existence of paths or shortcuts on the property that might give rise to the reasonable expectation that trespassers will regularly use the paths or shortcuts and, hence, might also injure themselves because of the conditions of the property on or around the paths and shortcuts.  In such a situation, a court may deem the landholder or landowner to have owed a duty to the reasonably foreseeable trespassers.

A “licensee” is another legal category of persons on the property of a landholder or landowner.  Unlike trespassers, licensees enter or remain on the property of a landholder or landowner with the landholder’s or landowner’s express or implied consent.  What distinguishes a “licensee” from an “invitee” (another legal status that will be discussed below) is the fact that the licensee tends to be on the property for his own benefit rather than for the benefit of the landholder or landowner.  Examples of licensees include social guests who have entered on the property of another with the intent of visiting the landholder or landowner, who, let us say, is a neighbor.  A landholder or landowner generally owes a licensee a duty of reasonable care with regard to activities undertaken on the property, as well as a duty to warn or make safe any dangerous conditions known to the landholder or landowner but not to the licensee.  Because a licensee is on the landholder’s or landowner’s property by consent, but not by express invitation, we do not force landholders or landowners to use reasonable diligence to ascertain the existence of dangerous conditions on the property.  The costs of holding landholders or landowners to such a high standard (time, money, and energy spent searching the property for conditions that may not exist for the benefit of people who may never enter the property, even if they have the permission to do so) outweigh the potential benefits (reducing the probability that a potential visitor would be injured on the property).  Therefore, the duty of a landholder or landowner to a licensee is measured by a standard somewhere between those standards applicable to trespassers and invitees.

An “invitee” is a person having express permission to enter or remain on the property of the landholder or landowner for the benefit of the latter.  An example might be a plumber or handyman who has been asked onto the property to perform some service for the landholder or landowner.  Landholders and landowners owe a duty of reasonable care to invitees.  Because the landholder or landowner is not only aware of the presence of an invitee on the property, but also the very cause of that presence (but for the landholder’s or landowner’s invitation, the invitee would not be on the property), we require the landholder or landowner to inspect the property and to make reasonable efforts to discover dangerous conditions on the property.  We also require the landholder or landowner to make any dangerous conditions safe for the invitee.

These categories seem straightforward in theory but are often complicated in practice.  What they tell us is that, in the workaday world, “duty” is not sacrosanct; it is contextual and subject to many interpretations depending on the facts at hand and the perceived relationship of the parties.

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