Power and Persuasion

Francis: What is on your mind? You seem troubled.

Paco: I’ve been reading a lot lately about this country’s many military adventures abroad, from drone bombings to funding various factions in other nations’ politics, to boots on the ground and air support in the sky.

Francis: That will put anyone in a sour state of mind. What has driven you to this morbid line of research?

Paco: I just wonder if there is such a thing as civilization, or if it is just a sham, a part we play while others engage in barbarism on our behalf.

Francis: Is there any point to talking in such categories these days? The whole dichotomy of primitive and civilized seems so…offensive.

Continue reading “Power and Persuasion”

Speaking With Certainty

A while back, after my propertarian piece (which isn’t much at all about property), someone challenged me to write a follow-up piece on ancient religious views on property, making sure to account for slavery. I immediately agreed to the challenge, but I was paralyzed.

The Judeo-Christian writing called Leviticus, which is a part of the traditional text known as the Pentateuch, or the Five Scrolls of Moses, or just “Moses,” speaks at length concerning property distribution, property rights, and compensation for irregularities and violations. It is a writing which depicts a vigorous society in motion, a book which Jesus summarizes with the well-known apothegm, “Love your neighbor as yourself.” The very word “neighbor” evokes property and other notions of personal sovereignty.

Nevertheless, it is practically impossible for me to write a general piece touching on Leviticus or Levitical principles because, with respect to its provenance, I am neither a minimalist nor a maximalist, nor am I some sort of milquetoast via media advocate, either. I happen to take a scholarly, evidence-based approach to the provenance of this book, which is a standard view, but is contrary to what is taught in universities both secular and religious or parochial.

In secular universities, and those religious universities whose worldview is formed by Nineteenth Century Continental philosophy, the minimalist Documentary Hypothesis is still taught as de rigueur, a hypothesis which posits that the books of Moses, especially the Levitical material, were fabricated by a power-mongering priestly caste during the Judahite exile in Babylon during the Fifth Century BCE. I am under the impression that this hypothesis is presented as ironclad secular scholarship, i.e., the truth, when it is essentially the telos of the Sacramentarian movement which came to dominate Enlightenment Era religiosity.

Religious fundamentalism, deeply offended by this radical minimalism, developed a response which became reflexively maximalist, in defiance of all evidence (even internal evidence) to the contrary, namely that Moses wrote every jot and tiddle of his five scrolls somewhere between 1550 BCE and 1440 BCE, and never shall a true Christian vary from that view lest he deny the efficacy of the Word of God.

In public discourse, there is no middle ground. One can write classroom papers and discuss privately a more nuanced view, which is based on the evidence–OK, let’s be fair: I would say that, now wouldn’t I? Here: a nuanced view which assembles the evidence guided by a particular view of history, scholarship, science, and philosophy. So I begin again: there is no middle ground in public discourse.

I presented a paper at a regional meeting of the Society For Biblical Literature once upon a time, a radical deconstructive view of methodology with respect to the academic discipline known as “biblical studies.” In it I noted that the disciplines of the pure sciences, linguistics, philosophy, and history had all evolved drastically over the past two hundred years, but biblical studies still labored under the precepts of the Eighteenth and Nineteenth Century, and I actually stated that, if this were any other discipline aside from the contentious religious discipline it is, our colleagues in every other department in all universities across the world would remove us with extreme prejudice.

A professor from Harvard was in attendance, so, naturally, I was intimidated. I mean, I still had aspirations to one day maybe hopefully if-miracles-come-to-pass apply for a position at Harvard or one of the Ivy League schools, or even Michigan University, so I really wanted to come off as bright and snappy. He asked, “What do you do with history?”

Without thinking, I blurted out, “I just ignore it,” which is true, in one sense because of my deep respect for the science of linguistics, but not quite right, again, out of a deep respect for post-modern philosophical currents. What I was getting after was the primary importance of community in interpretation, but I didn’t say as much, so the entire room burst into laughter. I tried salvaging my point, but, you know how these things go.

Then I heard a fellow in the front row mutter, “Why do we have to bring ourselves into resonance with other academic disciplines [a phrase from my paper] when we already know what history is?” [his emphasis].

Well, that was the entire point of my paper, which had failed to convince the Harvard University types: we don’t really know history. I did not go so far as to radicalize my view inasmuch as to say that we construct history wholesale, but it is certainly true that we arrange data within a certain framework until we are pleased with the outcome.

A healthy skepticism of the self is thereby necessary. What am I up to? Can I identify my biases? What are my external influences? Why is this emotionally significant to me? Moreover, when it comes to historical realities (for a lack of a better term), an academic humility is very helpful, namely that we don’t know very much at all, and we know that we don’t know very much at all because we don’t have much physical evidence, and we are, most assuredly, arranging evidence as taught, not as is obvious. We make a convincing case, that is all.

So when we speak of Levitical principles, it is nigh impossible to speak on the same ground. If these principles have their origins in a nomadic group of people who had recently escaped from Thirteenth Century Egypt, drawing heavily on Hittite suzerain-vassal arrangements and the attendant societal characteristics, then our vocabulary will be significantly different than if they have their origins in a cynical repristination drawn from a vaguely Babylonian and/or Syrian religion-society.

That last paragraph should be the lead paragraph when I write my propertarian follow-up.

Propertarian Hokey Pokey

Since I’ve come to know the Sweet Talk Kids, the property rights thing has been brought forward regularly as an entree of interest, like hotdogs, chips and kool-aid for Saturday night TV. I’m not terribly good at all the vocabulary nor some of the philosophical underpinnings, but the posts winging about have been quite educational, and I’m grateful for it.

As far as I can tell, there are two main lines of argumentation: 1) private property is theft, inherently [insert appeal to avaricious human nature. Problem of avarice resolved by benevolent redistribution imposed by state]; 2) public property is theft [insert appeal to mitigating features of nature. Problem of avarice resolved by not-so-benevolent redistributive forces of nature].

I know on which side of the divide I fall, to wit: side 2. And I have a few reasons I fall that way, the main ones as follow: the benevolence of the state is inherently violent. It must seize property by force, which requires either the threat of death and/or a complacent populace. Having a populace complacent to the state is problematical because it submits to the will of a state which allows no larger organizing principle than itself, which is (if I may anthropomorphize) what the state desires and will seek to attain and perpetuate. The state, in other words, is messianic, and will crush all other suitors.

What larger organizing principle is there?

Here, I think, is the rub. Arguing for an organizing principle larger than the state is a matter of metaphysics, i.e., whether there is such a thing as nature, an invisible hand, or a providential will of some sort. Perhaps even a personal God–but that’s too much, seeing as how even the most fervent believer in God believes that he is hidden amidst the elemental things, revealing himself very particularly, if at all.

Now side 2 is essentially reduced to an appeal to cold, hard, experience, both for itself and against the state. Each argument is in this way weakened, being basically founded upon witness, which can be contorted and perverted according to will. Thus, sweet talk. Are the not-so-benevolent forces of nature to mitigate the inherent avarice of private property owners convincing to you? Let me count the ways…

No matter how I count, however, I must appeal to a moral authority for the right to private property, not a theoretical one, not as a foundation, not until after I lay a foundation based on an unrevealed moral authority reconstructed by feeble minds. The will of a state is not, essentially, as messy as all that. What the state wills shall be so. By nature, then, to argue for private property is the weaker of the two sides.

What is it about the appeal to witness, however, that has such persuasive power?

The implications reveal, I think, that the argument is not set on a pole, as it seems at first glance: private vs. public property, or what-have-you. The arguments are appeals to a set of beliefs, the one founded on witness, the other founded on will, neither founded on objective reality, despite any appeal one or the other might make to such a not-a-thing.

On the one side are the institutions of the state, and on the other are the institutions of civilization with ancient precepts which strive to reach the unreachable heavens. Both coexist in an uneasy truce, some epochs more uneasy than others. When one finds favor in your eyes, you put your whole self in and you do the hokey pokey and you turn yourself around, with lots of friends and fellow travelers participating in the dance with you, and there will be an inside and an outside. Where the frontiers meet is where the music is played. Whose hokey-pokey radiates the most warmth and happiness?

Questions of justice are hereby eschewed, for those are fundamental to each dance.

Property and Personal Dignity in the Ancient World

The Spivonomist brings forward some of his usual light-hearted polemic, and he has every confidence to be light-hearted and incisively dismissive of the “property is theft” meme that seems to crop up with every new round of vampire movies, for “property is respect” is not far removed from the basic precepts of human dignity since the very beginning of Western Civilization. To shovel up and turn over that foundation would be one heck of a people’s revolution, overturning at least 4500 years of precedent, inculcated in our several language systems and in our various justice systems.

Moreover, those precedents are rooted in narrative history, meaning the precepts represented within the earliest organizing legal documents have been forged through the human experience and practice of Mesopotamia, the Levant, Egypt, and Anatolia. In other words, not only are these precepts organic in their nature, but their systematization also reflected generations of legal application, balancing the varied uses of force and mercy to maximize stability and prosperity.

For example, one of the earliest complete examples is a treaty created by my best friends, the Sumerians, a royal inscription known as the Eannatum Treaty, created during the 25th Century. Its significance lies in no small part that the treaty was not of one subjugating nation over a subjugated nation, as the later Hittite treaties exemplify, but is a treaty between two allied cities who were susceptible to boundary disputes and the occasional ambitious, conquest-minded ruler, conflicts which flared up during the course of hundreds of years. A few things emerge when working through the treaty:

  1. The basis of the treaty is a narrative rooted in historical realities, witnessed by heaven and earth (the deities).
  2. Once the frontier was secured, the concern was rebuilding infrastructure and returning soldiers to their ordinary occupations.
  3. Once the army was largely disbanded, the concern was defense of the frontier against outside invasion, as opposed to civil disputes between two cities.

In a word, the concern was establishing peace in order for the people to prosper. A rising tide lifts all boats, including the boat on which sits the throne.

More importantly, this particular treaty has parallels throughout the entire larger region, including a contemporary treaty found at Ebla, near Damascus. Unlike the Eannatum Treaty, however, it was one nation subjugating another. Nevertheless, its primary concern was the provision of mutual protection of merchants, detailing how sojourners were to be received and how the sojourners themselves were to conduct business. Continue reading “Property and Personal Dignity in the Ancient World”

Property is Respect

I find it easier as time passes to suppress the urge to giggle that naturally accompanies my reading of the oft-repeated claim that property is theft. The odd case of IP law that renders genetic sequences subject to copyright protection suggests to me that theft is the nearest description of ownership that might be applied. Similarly, I still recall with a crawling sense of disdain a (perhaps satirical) proposal I once heard while working one season at the South Rim of the Grand Canyon to sublet a stretch of the park to a developer who would build an extensive waterslide from the rim down to the mighty Colorado. Privatizing pristine wilderness  of special aesthetic or cultural value to crass commercial ends is a takings, a theft of sort against the interests of persons living and not yet born.

But ordinary property? The land my house sits on? The car I drive? The textiles I wear?

Congratulations to Jean Tirole, this year’s recipient of the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel. On my shelf is a copy of the textbook he and Drew Fudenberg wrote on Game Theory (titled, unassumingly, Game Theory). In it, they write of models that might be applied to notions of property as described by Enlightenment philosophers. Locke wrote as if ownership of the wild places of nature emerged through felicitous mutual cooperation, where men of like spirit pursued joint agreements to tame the wilderness and promote useful industry. Contrast this with Hobbes, who contrived a brutal state of nature, red in tooth and claw, where hapless primitives died early and painfully, enduring the din of a merciless God’s laughter. Between Locke’s Coordination Game and Hobbes’s Prisoner’s Dilemma is Rousseau’s Stag Hunt, whose organizing maxim lives on in Orwell’s Animal Farm: all animals are equal, but some are more equal than others.

Whatever your game theoretic bent, if you squint your eyes hard enough, you can make the “property is theft” trope fit. A peaceful Lockean farmer still has to bar marauders and arsonists from his land to render it fertile, thus restricting their natural “liberty” to burn and pillage. However, given the choice between “property is theft” and “property is respect”, I have found respect to more comfortably fit each of the game theoretic models above. In Locke, property is supported by a widespread mutual respect, and the sovereign is there to recognize and enforce the terms of respect. In Hobbes, constituents are unable or unwilling to generate the rules of mutual respect, so the sovereign arises to provide that valuable service. In Marx, the direction of respect has been bloodied and perverted to flow in the wrong direction, to be restored by revolution.

What can we gain by thinking of the institutions of property as arising from the sentiment of respect rather than the crime of theft? Well, I can’t speak for anyone else, but it helps me a little easier to spot those specific instances where respect becomes corrupted or ignored. Staying off my lawn when I’m seeding it is a sign of respect for me, preventing folks from fleeing across my lawn when a fire rages across the street is also a measure of disrespect, this time on my part. This trope predisposes me to easily assign a hierarchy of wants, of justice to the ownership in a way that theft does not. Respect better matches the established order of law, better channels moral intuitions, and is better reflected in the folklore and received wisdom of the civilization. I don’t know if “property is respect” true or not, but it’s a lot more useful to me than “property is theft.”

You can’t spell “property” without “proper.”

[published without editorial review]

The essential nuance of a private “nope.”

ARCHER: "Lana Kane" as voiced by Aisha Tyler

This is my two cents on the ongoing talk about no.” Particularly whether a “no” from a property owner is any different than a “no” from a government official (what Adam cites as the Bruenig objection).

First, there’s no “no” (or “noooope”) that is absolute (aside from technological/physical/biological impossibility), so what we are looking for is a difference of degree between private and public “no”s (not differences of kind). A government “no,” when it comes without due process or the rule of law, is a nasty, unpredictable thing, capable of running the gamut of degree from minor but insidious—“no you may not go 16 miles per hour over the speed limit, only 10, and only 5 if a police officer thinks you look suspicious because of the color of your skin”—to borderline genocidal—“no you may not utilize the civil justice system to defend your property, because you are Jewish”—and beyond—“no you may not live here; if you can’t leave, you may not live.”

Second, the private “no” is significantly less absolute than it may appear when judged without knowledge of the common law that has, in Anglo Saxon nations, organically defined the boundaries of all private “no”s.

Any refusal to obey a “no” might be damaging to the “no-er,” as much as any “no-ee” may be damaged by their obedience. This complex relationship—whether it involves strangers (as in tort law) or business partners (as in contract law)—has been negotiated, defined, and redefined in tribunals since at least the Romans (Sic utere tuo ut alienum non laedas, i.e. so use your own as not to injure another’s property). This is also Coase’s problem of reciprocal harm, and it’s become the backbone of nuisance law in this country today. The dentist and the the baker share a wall. Can the baker use loud mixers, thus denying the Dentist’s protestations and pleas for peace (his “no” noise) or can the Dentist enjoy his peace denying the Baker’s bread making?

Perhaps the most relevant common law “no-hedging” for this discussion is the very fascinating (can you tell I’m in the middle of Bar review?) Public vs. Private Necessity doctrine (in the tort law of trespass). The default rules of trespass are a resounding and strong “no!” No you may not enter another’s property without authorization. It don’t matter if you didn’t know you were trespassing; it don’t matter if you didn’t do any economic damage. Hey you kids! Get off my yard. This “no,” however, has a materially pronounced posterior; i.e. it’s got a big but.

One of the affirmative defenses to trespass (meaning the defendant must raise and prove her defense) is necessity. A school bus driver escaping a forest fire and a blocked-off mountain road can drive her bus right over my land and I cannot legally say “no.” The necessity (an emergency) negates the legal harm, and the property owner’s damages are what we snooty Epsteinian types like to call damnum absque injuria, or“a loss without a legally compensable injury.”

But the nuance of the common law’s “no” doesn’t stop there; it’s two pronged: (1) If the necessity is deemed “public” then it’s a full defense to trespass claims and subsequent damages. So if the bus is full of children and the driver is trespassing to save them, then there is no legal trespass, no damages nominal or pecuniary. (2) If, however, the necessity is deemed “private” then it will only excuse the trespasser from nominal damages. So if the escaping Partridge Family bus drives through a beautiful and rare shrubbery, the property owner can still claim economic damages and get compensation. This is what I mean by the nuance of a private “no.” The validity of any such “no” is subject to flexible standards and equitable defenses in common law.

Another added wrinkle: if the property owner tried a stronger “no,” if she tried to forcibly eject the sheltering trespassers (either the proverbial school bus of kids or the Partridges) she would be, in fact, liable, herself, under the law of torts for actively causing the trespasser’s peril to mature into harm. The famous case here is the delightfully-named Ploof v Putnam. Ploof and his family were boating when a storm struck. Unable to navigate to the lake-shore the Ploofs happened upon an island; they tied up on a stranger’s dock (Putnam’s dock) and huddled in the boat as the maelstrom bore down upon them. At this point, Putnam’s servant (who I like to think looked like Woodhouse from Archer) braved the violent winds and waves, walking down the pier to unceremoniously untie the sheltering Ploof vessel, sending the family careening into the crashing waves and the rocky cliffs beyond.


The Ploofs were injured and their boat destroyed. Later, in court, Putnam was found liable for damages caused by his servant’s “no” (all via the similarly interesting doctrine of respondeat superior, i.e. “let the master answer,” but that doctrine is some private “no” nuance we should leave for another day).

The larger philosophical lesson to take from all this legal ephemera is that private “no”s are non-monolithic, nuanced, and organically grown standards (unlike a dictator’s unpredictable whims). To borrow and extend a metaphor from Epstein, economists and political scientists tend to narrowly focus on steering the ship of state policy exactly where they think it should go (a utopic vision of one sort or another). What’s perhaps equally if not more important is that there are essential individuals inside that ship, shoveling coal, watching regulators and pressure valves, carefully maintaining the complicated mechanisms that keep the ship going, i.e. the valves that keep private “no”s equitable, just, efficient, and fair. In private law there are always lawyers, judges, juries, and relevant parties to be heard. I submit that public “no”s are of greater concern than private “no”s because while we may have plenty of daring ship captains barking orders and commands in the public sphere (aiming us at verdant shores of distributional justice or administrative safety) there are fewer public mechanics carefully watching the valves. The problem with public “no”s is process (administrative law is non-emergent, non-organic) not substance.

Who Should Be Empowered to Say “No”?

Sam tells us:

In private hands, “no” is a tender little syllable. It lends dignity to lives both modest and great. It is a tiny utterance that invokes Bartleby: “I would prefer not to.” In public hands contrarily, it is hewn in rock, forged in iron, printed in all caps. It channels Ahab: “you may not.”

This is all good and classically libertarian, but then Matt Bruenig chimes in and says “ah-ah-ah, a private ‘no’ is far from tender. Think of the starving man who goes to grab a piece of food from the grocery store to eat, and the store owner tells him ‘no’, consigning him to death or at least to suffering.” The only tender world, Bruenig suggests somewhat tongue-in-cheek, is a completely no-less one; the grab-what-you-can world.

The libertarian and economist has a quick response—the grab-what-you-can-world is a world of mass starvation, where everything is in the commons and therefore everything is overharvested until there is nothing left. But this invites Bruenig to reply: your basis for a private “no” is thus consequentialist, and following the consequentialist thread is unlikely to lead you to the property rights regime you probably want. I know many who would disagree with this outright—Pete Boettke for one. But Bruenig would certainly deny that property “lends dignity to lives both modest and great”.

I’m sure you all have an idea of how I feel about this but I want to put the question to you: how do you respond to Bruenig’s challenge? Is a “no” from a private property owner truly different in kind than a “no” from a government official? Why?