::Freespace::

Onion Headline: �Schwarzenegger To U.S. Troops: �You Guys Are The Real Genocidal Killer Robots From The Future.�� Reminds me of Judge Reinhardt�s commencement speech at my graduation from law school last year. Boy, what I wouldn�t give to have that hour of my life back�or erased from my memory forever. He went on, and on, saying that you shouldn�t be a lawyer if you didn�t believe in �affirmative action,� and various other liberal projects; he was even talking about the rhythm method�this is a family show, Judge! Anyway, at one point I emerged from my somnolence to hear him talking about The Future, when someday there might be robots with consciousness, which would have rights, and we�d have to protect them, or something like that. The fellow in front of me in the audience leaned back and whispered �We lawyers must protect the Earth from Evil Robots From Beyond The Moon!�

�Correction,� I said. �Racist evil robots from beyond the moon!�

Move over Lochnermobile: The perfect car for me? (Thanks to my parents for the pointer. And check out the spelling in the ad!)

Paine on law: The lovely and lamented E., in a conversation about the Guantanamo Bay prisoners, passes along this excellent quote from Thomas Paine: �An avidity to punish is always dangerous to liberty...because it leads [a Nation] to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.�

Ice cream: Incidentally, it occurs to me that Curmudgeonly Clerk�s ice cream example is a little bit off. He posits a debate over the difference between chocolate and vanilla ice cream, and says that while Will Baude would �cite[] the crispness, the refreshing quality of vanilla; Sandefur [would] allude[] to the comparative richness and creaminess of chocolate,� and these would be getting us no deeper than personal taste.

If the ice cream example is to be used with any rigor, though, I think that it has to be made clear that natural rights theory is nowhere near that specific, and that I know of no natural rights theorist who has ever claimed that it is. Natural rights gives us the broad outlines of political legitimacy; it sets the moral boundaries within which law can operate. Within those boundaries, then, we write constitutions, and those set the legal boundaries within which politics can operate. (In the federal system we have another layer: the federal Constitution sets the boundaries within which State Constitutions can operate.) But natural rights theory cannot tell you things like, how many representatives should sit in Congress, or how long a term of office the President ought to have, and so on. It can tell you things like, slavery is illegitimate, or the rights of private property should not be infringed. But natural rights are those rights that all human beings have regardless of the existence of political society. Once people then enter into political society, they can also create new rights systems�that is, they can create civil rights. Civil rights are the social implementation of natural rights; they�re things like voting, or the right to a jury trial. One has no natural right to a jury trial, but it is an effective mechanism for protecting the natural right not to be put in prison for a crime you didn�t commit. So civil rights make natural rights more specific. And common law adjudication gets more specific, still. So how many jurors should sit on a jury? There�s no way that natural rights theory can answer that question�it�s a custom. But it�s not a matter of personal taste, either, because it is a social mechanism for protecting natural rights.

In an earlier post, Will Baude said that property is a social construct. This is not right�but this is a useful example of this distinction between natural rights and civil rights, and the specificity that comes out of it. Madison tells us that �the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated. The personal right to acquire property, which is a natural right, gives to property, when acquired, a right to protection, as a social right.� (See also his letter to Jefferson, Feb. 4, 1790). Madison�s characteristically subtle understanding is that property rules occupy a sort of middle ground between natural rights and mere social convention. Take wills, for instance�the Rule Against Perpetuities is obviously a mere social convention, but something like the �Property� that �every Man has�in his own Person�[including] The Labour of his Body and the Work of his Hands,� is a natural right.

An added complication to natural law theories is that we do not know all of the implications of the natural law right away. I often liken natural law to a road shrouded in fog; we can tell certain things about it, and make rational conclusions about the future, but we cannot be certain about the rightfulness of these (or any) conclusions without running the experiment. And running the experiment�that�s just where the idea of natural rights rests. As Douglas Rasmussen writes,

�There are many forms of human flourishing, but there is no single best form of human flourishing period. Rather, there is only the best form of human flourishing for an individual. Thus, there are many summa bona. Nonetheless, this does not require that human flourishing be subjective. Human flourishing neither consists in merely having favorable feelings nor in having value conferred upon it simply by one�s preference. This individualized account of human flourishing offers diversity without subjectivism..... Since there are no a priori, universal rules that dictate the proper weighting of the goods and virtues of human flourishing, a proper weighting is only achieved by individuals having practical insight at the time of action. They need to discover the proper balance for themselves.� Douglas Rasmussen, Why Individual Rights? in Individual Rights Reconsidered 113, 119-126 (T. Machan ed., 2001) (note the similarity, by the way, between this passage and the supposedly opaque language from Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), (�At the heart of liberty is the right to define one�s own concept of existence, of meaning, of the universe, and of the mystery of human life.�))

So were we to discuss the naturalness of ice cream, I would not focus on the �comparative richness and creaminess� of the chocolate. Instead, I would say that human beings evolved from creatures who were forced to survive in circumstances where they did not have reliable food sources. As a result, they evolved in such a way as to be strongly attracted to sugars and fats, which can store a large amount of energy in the body. The human mind and tongue therefore came to be attracted to things of which ice cream is largely made, and this accounts for the fact that it is in their nature, as a general matter, to like ice cream; this is not a social construct; few people if any need to be taught to enjoy ice cream. As to the particular flavor, however, while there may be some natural reason that certain flavors are preferred over others, there are no readily available criteria for determining a priori which one is to be preferred. Therefore it has to be left to each individual to choose ice cream for him- or herself. And, since there is no natural reason why any person should not be free to make such a choice, then each person has a natural right to choose the type of ice cream they like best.

You see what I mean, then, about how, for something to be �socially constructed,� it must be constructed out of something, that something being, nature. Property rights rules are constructed out of something�that something being the fact that human beings have a natural concept of �mine� and �thine,� and a natural concept of what is, and is not, �right��rudimentary as that concept might be before cultural tunings. But this brings to mind some passages from my favorite living philosopher, Daniel Dennett. The first, conveniently enough, focuses on ice cream flavors, more or less:

�The substance phenol-thio-urea�tastes bitter to one-quarter of the human population and is utterly tasteless to the rest. Which way it tastes to you is genetically determined. Is phenol-thio-urea bitter or tasteless? By �eugenics� (controlled breeding) or genetic engineering, we might succeed in eliminating the genotype for finding phenol bitter. If we succeeded, phenol-thio-urea would then be paradigmatically tasteless, as tasteless as distilled water: tasteless to all normal human beings. If we performed the opposite genetic experiment, we could in time render phenol-thio-urea paradigmatically bitter. Now, before there were any human beings, was phenol-tio-urea both bitter and tasteless? It was chemically the same as it is now.� Consciousness Explained 379 (1991). See also Darwin�s Dangerous Idea 467-481 (1995).

So does this mean that there�s no such thing as �natural� taste, and no such thing as �natural rights,� because these things are all just constructed out of human taste? No, because when we speak of �natural rights� or �taste,� we are speaking of human beings�it would make no sense to speak of a natural right in any sense that would suggest that something could be right without a human being there to experience it. This would relegate �right� to some Platonic form, when in fact, right is something that makes sense only in relation to a person to whom or for whom something is right. I mention this because I think many of my allies on the natural rights side of this debate tend to make that mistake, and think that there can be something that is, in itself, right, regardless of its effect on, or cause by, human beings.

Finally, Dennett writes �[T]he fundamental purpose of brains is to produce future�. Faced with the task of exracting useful future out of our personal pasts, we organisms try to get something for free (or at least at bargain price): to find laws of the world�and if there aren�t any, to find approximate laws of the world�anything that will give us an edge.� Id. at 178. This is all that natural law political theory does. Unfortunately, shrouded in mysticism from its inception, natural law is often characterized as a religious view�something I responded to in my earlier post, by quoting Barnett. But in fact it is nothing more than an analysis of�to again borrow from Barnett��the nature of human beings and the world in which they live.� Those things do exist, and reveal certain facts about what kind of creatures we are, and what we need to survive. And from those characteristics we can derive rules of behavior which result in human flourishing or misery. These are the natural moral laws. Once those things are determined, we may associate ourselves with each other in organizations, which must obey those laws to be rightful. One of those organizations is The State.

Natural law theory does not say that the state is incapable of exceeding the boundaries of rightfulness. All it says is, when the state does, it is no longer acting morally; as the quote Ken Lammers has at the top of his page says, it then becomes force without right, which is indistinguishable from crime. Note that only natural law theory can make that statement. For a positivist, any order can claim the standing of law. The positivist cannot draw a distinction between malum prohibitum and malum in se, or between lawful authority and state-created injustice. He can only say that he finds a particular law distasteful�that distaste being equal to the distaste he feels for vanilla ice cream.

Ahem: Amy, if you are reading this, turn off the computer now, and go back to studying for the bar.

Positivism Cont�d: It occurs to me that the error in Will Baude�s math lies here: �There is no logical �right� to rule over others. The burden of proof lies on he who suggests there is. But nor is there a logical �right� not to be ruled.� That�s the mistake. If nobody has a right to rule over me, then I, by necessity, am not subject to some rightful claim on the part of another that he may rule me. Since nobody else has the right to rule me, then I rule myself. (Or, in Locke�s and Milton�s formulation, God alone has the inherent right to rule me, since He stands above me as I stand above a dog; but He leaves me to run my own life more or less as I please. In this context, the difference between their views and mine is minor.) Since nobody has the natural right to rule me, then they can only rightly rule me if I give them the consent to do so. And, of course, that is true of everyone in the society. In other words, since all men are created equal, and �the equality I there spoke of as proper to the business in hand, being that equal right that every man hath to his natural freedom, without being subjected to the will or authority of any other man,� therefore just government can only be based on the consent of the governed.

Baude is overlooking the reflective effect that equality has on the principle that nobody has a natural right to rule another. Since that is true, it is true of everyone, and that is what creates the natural right not to be ruled by another without your consent. And it�s what�s �logically wrong about slavery.� By conceding that nobody has any inherent right to rule over you, Baude has adopted the fundamental principle of all natural rights theory: that you own yourself, and do not belong to others. As Milton puts it, �No man who knows ought, can be so stupid to deny that all men naturally were borne free...and were by privilege above all the creatures, born to command and not to obey: and that they liv'd so. Till...they agreed by common league to bind each other from mutual injury, and joyntly to defend themselves against any that gave disturbance or opposition to such agreement.�

(Of course, consent creates all sorts of other problems (tacit consent, and so on) but we can deal with those some other time. And it is not important for our purposes whether the �common league� is a historical or an ontological fact; the point is that because human beings do not have an inherent right to rule others, each person has the right to consent or to withhold consent, from rulers. That the kernel out of which everything else in the Lockean view grows.)

As to the other points, Baude says that �one doesn�t change the physical facts of the world by calling them something else.� Why not? Why do we care? This statement embodies an assumption that there is some distinction between reality and what we say about it�a distinction that he denies in the arena of moral law. I assume this is because he sees a fundamental distinction between mathematical law and morality. Well, then, on which side of that distinction does, say, the concept of inflation lie? Inflation says that money will be worth less if you print more of it�but why? Who gives money its value? Isn�t it entirely subjective? If so, then if people simply decided not to accept the concept of inflation, it shouldn�t work that way, right? And yet it still does, because, as Baude says, you cannot abolish physical reality by decree. But that�s precisely what the Soviet Union attempted to do by abolishing private property, and the result�despite a great deal of time and energy involved in constructing the correct proletarian morality�was nevertheless poverty and misery. The fact that no society has ever succeeded in abolishing institutions such as private property suggests that there is, indeed, something natural about property rights, and other such things. It�s easy to say that moral philosophy is one thing and physical reality is the other, but the two are actually intertwined in significant ways, and economics is an ideal example of that. Denying physical reality is absurd in the case of claiming that a sixteen year old girl is not really sixteen, because it is an ipse dixit argument; but the claim to rule others is also either an ipse dixit argument (rule by the stronger, in other words, or legal positivism), or it rests on the basis of consent. All ipse dixit arguments are equally absurd.

Consent embodies the premise that the individual owns himself and therefore has a right to decide what to do with that self. We may rightly rule animals, or those who do not have reason, without their consent, because it is unnecessary to convince their judgment. But to treat human beings in this way is to deny their reason�the defining characteristic of humanity�and to treat them in a manner inconsistent with their nature. The result will generally be misery and stagnation. This is why it is just as absurd to say that the Somethingerother is worth two dollars as it is to say that a girl who is not sixteen is now sixteen; and it is equally absurd to say that slavery is morally right (particularly since Baude concedes that there is no natural right to rule over another).

Now, Baude is to be commended for being remarkably honest in admitting that his principles make him incapable of condemning anything as being actually wrong. �A taste for murder,� he says, �is worse than a taste for theft which is worse than a taste for leaving other people alone.� But of course, this is also just his own personal taste. He finds murder icky himself, but if Nero decides that there isn�t anything icky about murder, then there�s nothing icky about murder for Nero; it�s just an aesthetic preference. Tyranny cannot be unjust.

Now, let�s take the Confederacy for example. Slavery�s not wrong, because the Southerners don�t find it icky. Baude finds it icky, perhaps, but there is nothing really wrong about it. But wait a second, you might say�the slaves didn�t accept that it�s right. They find slavery icky, and they didn�t get an opportunity to vote in this great social referendum on the rightfulness or wrongfulness of slavery. �Yes, that�s true,� replies the overseer. �But why should we count their votes? We don�t accept that they have the right to vote.� What would Baude say? Would he insist that they do, nevertheless, have the right to vote? And if so, on what grounds? His personal taste, I suppose, but the overseer considers the taste for allowing a slave to vote as being worse than a taste for murder, so the overseer rejects that possibility. Justice becomes the interest of the stronger. I, however, can say that, because nobody has a natural right to rule over another, the overseer has no right to rule another. I might quote Abraham Lincoln:

�Judge Douglas frequently, with bitter irony and sarcasm, paraphrases our argument by saying: �The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable Negroes!!� Well, I doubt not that the people of Nebraska are, and will continue to be, so good as the average of people elsewhere. I do not say the contrary. What I do say, that no man is good enough to govern another man, without that other�s consent.�

Baude claims to agree that no man is good enough to govern another man without that other�s consent. But the logical consequence of that assumption is that the slave should have a say in the matter. And that is a moral presumption about human beings which he elsewhere calls a mere taste, a whim, a predilection with no more validity than your taste in hat colors. After all, �No principle...require[s] you to believe that tyranny is bad.�

One other way in which Baude is commendably honest is that, unlike many positivists, Baude does not claim that his views were shared by the American founders. The authors of our Constitution, at least, were not positivists. The Constitution, for instance, is unambiguous in its declaration that liberty is a blessing. It remains remarkable to me how thoroughly alienated even the most brilliant students are from the founding principles of our nation.

�This late in the seasons of our experience, federal judges should not be in need of this kind of instruction, on the rudiments of constitutional government. That a tuition in these matters would have to be administered to the judges could not have been what the Founder expected when they anticipated that the judges, and especially the judges of the Supreme Court, would have to engage in some public teaching. They did not suspect that the main instruction would have to be offered to the lawyers and judges themselves, and to the resident wits in the schools of law. That is not where the Founders thought that our most inventive judges would have to be directing their own genius, or their own arts as teachers. But that project has become, in our own day, steady work.� Hadley Arkes, On The Grounds of Rights And Republican Government, in Bradford Wilson and Ken Masugi, eds., The Supreme Court And American Constitutionalism 46 (1998)

Anyway, this is a subject that has been debated for eternity; a great example is the squabble between Justice Chase and Justice Iredell in Calder v. Bull. I heartily commend Jasay�s and Arkes� work to both Baude and the Clerk, and I will continue to believe that, as I have no natural right to rule over them, I must instead acknowledge their right to run their own lives, and will attempt merely to persuade, rather than claim the right to control, their minds.

Oh, one more thing. The Curmudgeonly Clerk quotes Ely (and how many times have I heard this one?) saying that natural rights theory fails because anyone can use it to prove anything. But can�t one make the same criticism of absolutely any jurisprudential theory? �Oh, economics schmeconomics,� one might say. �You can use economics to prove anything. You can use it to prove that massive government spending will create prosperity, and you can use it to prove that government spending will destroy prosperity. You can use it to prove that taxes should be raised and you can use it to prove that taxes should be cut. Every time you find an economist, you can find an economist to say just the opposite.� Now, were someone to say that, you�d reply, �No, there�s good economic theory and there�s bad; just like there�s good science and quack science.� Natural rights theory has suffered from much quackery, and I�ve denounced it in this place on numerous occasions. But that does not mean that it is fundamentally quackery.

Also, you might check out Randy Barnett�s excellent introductions to natural rights theory. All of this started out by my insistence that it is possible to derive ought from is without reference to some supernatural entity, and Barnett has a great passage on these points:

�What are these natural rights and why does legitimacy require that they be respected? Elsewhere, speaking not for the framers but for myself, I have offered the following definition: natural rights are the set of concepts that �define the moral space within which persons must be free to make their own choices and live their own lives. They are rights insofar as they entail enforceable claims on other persons (including those who call themselves �government officials�). And they are natural insofar as their necessity depends upon the (contingent) nature of persons and the social and physical world in which persons reside.�

�In sum, �the pre-existent rights of nature,� in Madison�s words, are those rights that �are essential to secure the liberty of the people.� A respect for these rights is as essential to enabling diverse persons to pursue happiness while living in society with others as a respect for fundamental principles of engineering is essential to building a bridge to span a chasm[fn 37]....

�[fn37] 37. Although I do not claim that all Americans in the founding generation shared this (or any) conception of natural rights, it is clear that some did. For example, Pastor Elizur Goodrich (1734-1797) made a functional argument of this sort in an �election sermon� he delivered to the governor and general assembly of Connecticut on the eve of the Constitutional Convention:

��The principles of society are the laws, which Almighty God has established in the moral world, and made necessary to be observed by mankind; in order to promote their true happiness, in their transactions and intercourse. These laws may be considered as principles, in respect of their fixedness and operation; and as maxims, since by the knowledge of them, we discover these rules of conduct, which direct mankind to the highest perfection, and supreme happiness of their nature. They are as fixed and unchangeable as the laws which operate in the natural world.

��Human art in order to produce certain effects, must conform to the principles and laws, which the Almighty Creator has established in the natural world. He who neglects the cultivation of his field, and the proper time of sowing, may not expect a harvest. He, who would assist mankind in raising weights, and overcoming obstacles, depends on certain rules, derived from the knowledge of mechanical principles applied to the construction of machines, in order to give the most useful effect to the smallest force: And every builder should well understand the best position of firmness and strength, when he is about to erect an edifice. For he, who attempts these things, on other principles, than those of nature, attempts to make a new world; and his aim will prove absurd and his labour lost. No more can mankind be conducted to happiness; or civil societies united, and enjoy peace and prosperity, without observing the moral principles and connections, which the Almighty Creator has established for the government of the moral world.�

�Elizur Goodrich, The Principles of Civil Union and Happiness Considered and Recommended, in Ellis Sandoz, ed., Political Sermons of the American Founding: 1730-1805 914-15 (Liberty Press, 1991).

�Lest this quote reinforce a modern misconception about traditional natural rights theory, note that although Goodrich identifies God as the original source of the laws that govern in the moral world, so too does he identify God as the source of the laws that govern agriculture and engineering. With both types of principles and laws, once established by a divine power they become part of the world in which we find ourselves and are discovered by human reason. Thus, today one can no more disparage natural rights because Eighteenth Century thinkers attributed their origin to a divine power than one can disparage the laws of physics because Eighteenth Century scientists believed that such laws were also established by God. Whatever the source of these moral laws, Goodrich�s argument is that they must be respected if we are to achieve the end of happiness, peace, and prosperity. This view of moral laws assumes, of course, that happiness, peace, and prosperity are appropriate ends. Should anyone question this assumption, additional arguments will need to be presented.�

Cox & Forkum: I really enjoy their political cartoons; check them out.

Pimpin� da Freespace: Thanks to the Pimp Translator! Aww yeah!

The die is cast: Another tidbit for Classical Values. This morning, the local radio station interviewed Art Torres, the head of the California Democratic Party, about the impending recall election for Gov. Davis. We can�t avoid a recall election after certification, he said, �because as Caesar said when he crossed the Rubicon, jacta alea est: �the die has been cast.�� Pretentious, but impressive, especially for a politician.

Mars: Look up at the sky some time this month. Mars is closer to Earth now than it has been in tens of thousands of years. No doubt Marvin is planning his invasion as we speak.

Stylin� stealin�: This guy rented a limo to rob a bank. Hey, take care of the luxuries, and the necessities take care of themselves! (Saw it on Romenesko)

Jasay on ice cream: Anthony de Jasay�s Justice And Its Surroundings is an outstanding book�although exceedingly hard to read, in places�and one of its virtues is that it replies (sorta) to the Curmudgeonly Clerk�s ice cream example. Here�s the excerpt.

Names: One little thing. Will Baude is a bright fellow and a fine sparring partner, and I mean absolutely no personal slight to him by anything that I write, despite what might seem a sharp tone to my arguments. We�ve had quite agreeable correspondence by email. But I must comment about a pet peeve of mine, not only in his post, but on several other blogs of late. I have a constitutional right to be addressed by my last name. See Hamilton v. Alabama, 376 U.S. 650 (1964), rev�g Ex parte Hamilton, 275 Ala. 574 (1963). I�ve not met Will Baude, or any of these other bloggers, and have never been given permission to refer to them by their first names; and so I have not done so. Because of the mores of our age, it is considered haughty to complain about such things, and that�s a shame. As Miss Manners�of whom Mr. Baude is a regular reader�once put it, calling people by their first names eliminates that wonderful moment when the person says �No, no, please call me Tim.�

This sounds angry, and I do not mean it that way at all; goodness knows, in the Age of the Carl�s Jr. Commercial (that�s probably Rally�s to the Crescat Sententia gang in Chicago!) it�s a tiny matter. But for those who don�t want to call me �Sandefur,� I would suggest the following:

The Timothy Sandefur
Your Majesty
Your Excellency
Your Bloggificence
�The Radical�
�The Libertarian Centrist�
The Curmudgeonly Clerk (never mind, that one�s taken)
The Space Cowboy
The Gangster of Love
Maurice

Positivism and its discontents: I don�t have time to write a really thorough reply to Will Baude�s argument that �moral judgments, while very important, are...hogwash,� or with the Curmudgeonly Clerk�s much more thoughtful skepticism. But I�ll do what I can.

It�s true that the link to the basics of Objectivism that I provided was probably not the best link; I was just looking for some �intro to Objectivism� link, not to a link that would justify morality from the bottom up. But neither the Clerk nor Baude have responded to the point in my other link: Bronowski�s structuralist argument. And, in fact, both Baude and the Clerk are demonstrating the validity of that argument by the fact that they are bothering to discuss the subject rationally, using logical analysis. Why are they doing this? Presumably because they hope to reach a conclusion regarding the subject at hand (in this case, the rationality of morals). Why do they bother to discuss the issue with citations and logical argument, rather than, say, consulting a telephone psychic on the matter, or tracking me down in the phone book to shoot me for disagreeing with them? I suspect it�s because they seek to reach some truth at the bottom of the debate. To reach that truth requires them to act in a particular way�that is, to reason their way to a conclusion. And here is the connection between ought and is; in order to discover what is true, they must act in such a way that the truth can be discovered. That means, toleration of dissent, freedom of discussion, and so on.

Now, one might call this a �utilitarian� argument, since it is justifying freedom because it serves some other goal; or one might call it a natural rights argument, since it is based on the fact that, as reasoning beings, our nature is contrary to coercive actions by others, and so forth. You have my permission to call the argument what you like. It makes no difference to the fact that Baude has proven the very thing he asks for: �I�m asking somebody to prove that freedom is �right� from first principles.� Why must we prove it? Why give reasons? Why not simply assert it and order him to comply? The fact that he asks the question proves the point: he is a reasoning being, and in the end, his continued survival depends on his ability to exercise his reason. To be forced into compliance is therefore contrary to his nature, and so he instead asks for a logical argument. Force is not a logical argument, though�in the classic legal terminology, it �overcomes the will without convincing the judgment.�

But Baude also errs by asking for proof of the rightness of freedom. As Anthony de Jasay points out in his recent Justice And Its Surroundings, this is asking for the proof of a negative�for proof that one should not be coerced�which, of course, is logically impossible. The burden is on the person who asserts the right to rule over others, not on the person who denies the existence of such a right. But Baude makes the same error that Sunstein makes, when Sunstein (who, Bork-like, absurdly labels his position �Madisonian�) says that �respect for private rights, the private sphere, and limited government should themselves be justified by publicly articulable reasons.... In the United States, any particular conception of the private sphere must be defended by substantive argument.� Democracy And The Problem of Free Speech 247 (1993). In other words, government may regulate unless the individual can prove to the satisfaction of �society� that he should be free to act. This places the burden of proof on the individual, but as de Jasay writes, �[t]o falsify the hypothesis that the act is objectionable, and therefore not one of the actor�s liberties, is a needle-in-the-haystack type of task, very difficult and costly if the set of potential objections is large, and logically possible if the set is not finite....� Justice And Its Surroundings 150 (2002). Moreover, this leads to an infinite regress, since proving that one should be free to act is itself an action which would require justification. That justification is itself an act which would need to be justified, and that justification is another act...and so on ad infinitum.

A practical example of this problem is readily available. In New State Ice Co. v. Leibmann, 285 U.S. 262 (1932), Oklahoma made it a crime to open a business to sell ice unless the owner first obtained a certificate from the Corporation Commission of Oklahoma attesting to a public necessity for a new ice provider. Anyone going into the ice business was literally required to prove that he should be free from government regulation, an unbearable task. Such a scheme is absurd not only because it is practically impossible to meet every conceivable objection, but because it is impossible to imagine the potential of an economic behavior a priori: who could have predicted, a decade ago, that a business model offering $1.50 cups of coffee on very nearly every street corner would become the economic powerhouse that Starbuck�s is today? Moreover, the Oklahoma statute pegged a business license to proof of necessity, not merely convenience or benefit. Proving that a new business is necessary is a far more burdensome task than to prove that the public will like the new business, or find it preferable for reasons that even they might not be able to state. The regulatory scheme in Leibmann required the entrepreneur to prove (without actually doing the experiment) that his business was necessary to the public. As Justice Sutherland concluded for the majority, �the practical tendency of the restriction, as the trial court suggested in the present case, is to shut out new enterprises, and thus create and foster monopoly in the hands of existing establishments, against, rather than in aid of, the interest of the consuming public.� The Court struck down the statute. (But as absurd as the regulatory scheme might seem in retrospect, it is the prevailing method of economic regulation in the United States today.)

Got a little distracted there; I really love that case. Anyway, it is for those who insist that they have the right to rule who are asserting the positive, and it is they who must justify that claim.

Baude then concludes by essentially proving my point regarding rationality, by appealing to the cases in which those who are not rational are rightly ruled by those who are. He concedes that all humans are equally human (a seemingly mundane point, but important). We might then follow by quoting Harry Jaffa:

�There is no difference between man and man as there is between man and, for example, dog, such that one is recognizable as the other�s natural superior. And if men are not naturally subordinate, one to another�as all the brute creation are naturally subordinate to man�then they are naturally not in a state of government, or civil society. They are, instead, naturally free and independent, or born free and independent. But they are born free and independent, because they are born�or created�equal�. That men are by nature free and equal is the ground simultaneously of political obligation�of consent as the immediate source of the just powers of government�and of a doctrine of government and of an ethical code. Because man is by nature a rational being, he may not rule other rational beings as if they were mere brutes. Because man is not all-wise or all-powerful, because his reason is swayed by his passions, he may not be a judge in his own cause, and he may not therefore rule other men despotically.� How To Think About The American Revolution 40-41 (1978).

In other words, the very fact that we seek reasons, that we seek to have things proven rather than simply asserted, that others must prove through such reasons their right to rule, is what connects our nature to freedom. (This is why I quoted the Declaration as a syllogism. Obviously the actual phrases of the Declaration do not fit the classic syllogistic form, but they do flow logically from one premise to the next, as Jaffa shows.) These premises are born out by empirical evidence: societies built on the opposite premises�which claim the inalienable right to rule over others�do not flourish, but languish; they suffer poverty, misery, and stagnation. There has never been an instance of human society actually abolishing the alleged �social construct� of property�although Baude�s answer to that point is a wan �not yet.� Societies that deny the right to dissent suffer things like Lysenkoism; they find it impossible to invent things, but have to steal from freer nations. These things reveal the practical consequences of denying the nature of human beings as rightfully free.

Baude piles a lot of words on to try to hide his relativism, but he is really saying that there is nothing really wrong about slavery and tyranny�it�s just a preference. Slavery�s only wrong �cause he thinks it�s icky; it fills him with moral disgust. But if there were someone who was not filled with moral disgust by slavery�like, say, the master�then slavery would be right for him, and, well, who are we to criticize? Well, the slave might criticize; it fills him with moral disgust. Who is to judge between these two positions, then? On one side stands the master, who says that there is nothing wrong with slavery; justice is the interest of the stronger. On the other is the slave, filled with disgust by slavery. And now who is to judge between these two positions? Will Baude. He arrives on the scene, and what does he say? He says, �I�m asking somebody to prove that freedom is �right� from first principles.� In other words, he appeals to rationality to decide the question. Why? Because we are human beings, and rationality is our means of survival; that is how we answer questions like this. Very well, the three of them shall reason out the question. The slave lays down his burden, and the master lays down his whip, and the three of them sit under a tree to talk the matter over�and there we have our answer, don�t we? Because we have just demolished the master�s claim to a right to rule over others. By appealing to reason to solve this dilemma, we must lay aside the whip. And that is all that I�m saying.

And yet Baude does not see this. To him, the fact that the master must lay down the whip is nothing more than a personal preference. �[T]hese beliefs are just that�beliefs.� (By which he means, his beliefs have no connection to reality; they�re just�things that float in and out of his mind, I guess.) If the whole population of Venezuela, or South Carolina, were to decide to enslave all the Will Baudes, he would still nurse a �moral approbation� toward them, and be angry at them, and would try to stop them (most likely by running away), but there�s no way he could prove otherwise. Baude seems to believe that he has avoided plunging full force into subjectivism, but I still don�t see how.

There�s nothing new about this subjectivism; my favorite refutation of it is Hadley Arkes� The Return of George Sutherland (1996), in which he likens Baude�s position to the dictator in Woody Allen�s Bananas, who simply asserts that �all girls who are under sixteen years of age are now over sixteen years of age.� Why would that be wrong, in Baude�s world? You say, �Because you can�t change the laws of mathematics.� Why not? Why are the rules of logic any different? Why are there no other logics? You say �Because it�s just not true that a thirteen year old girl is sixteen.� But what matters truth to me? If a man asserts that an underage girl is of age, who is Baude to enforce upon him the alleged �fact� that he is wrong about that? He does not choose to acknowledge Baude�s facts, or to acknowledge that there is anything wrong with rejecting the facts. You say, �That�s silly, counting is no different from one society to another.� And yet many nations choose to issue, say, reams of paper currency, and declare that the new Somthingerother is now worth two dollars each! And we�ll shoot anyone who says otherwise! Does that make the Somethingerother worth two dollars? Of course not. But why not? Isn�t money just a social construct? It�s property, after all�. On this point, Baude seems to have misunderstood my point about Venezuela. Yes, I�m sure his subjectivist refusal to acknowledge anything real about morality would extend to a South American coup as well, but my point was, why do the South American coups result in shortages and inflation? If property and its attendant laws are just social constructs, they ought not experience economic collapse as a result of their bad economic policies. Is it just that they don�t have enough faith in the Glorious Leader�s policies?

In any case, positivism must ultimately resolve itself into Thrasymachus� argument that justice is the interest of the stronger. By abandoning the possibility of logical argument, it does just what religious dogma does�it abandons the only ground for a rational resolution of the issues. Because positivism cannot say that the master must put down his whip, but only that the speaker unaccountably feels like it would be nice if he did put down the whip, there�s no solving that dilemma except through force. When A says �it is my unprovable dogma that such and such is the case,� and B says �it is my unprovable dogma that so and so is the case,� how is that difference to be settled? In most cases of disagreement, they�d put down their whips and go about proving to each other that it is true. But by abandoning reason, they can either pray for each other, or they can beat the living crap out of each other. But they have abandoned the possibility of convincing each other. As Bronowski writes, �Those who crusade against the rational, and receive their values by mystic inspiration, have no claim to these values of the mind.� Science And Human Values 68 (2d ed. 1965). The positivist is in no better position. He can either rule or be ruled, but he cannot have government by consent, because he can have no rational discussion over morals. He therefore either holds the whip, or is stung by it. This is why, as I have written elsewhere, the positivist society ultimately resolves itself into Hobbes� State of Nature. �The society based on legal positivism is the society where �there [can] be no propriety, no dominion, no mine and thine distinct; but only that to be every man�s that he can get: and for so long, as he can keep it��in which clashing factions seek to redefine �justice� to suit their particular desires�their desire, for instance, to take money from others for themselves, which they call �social justice.�� John C. Eastman and Timothy Sandefur, Justice Stephen Field: Frontier Justice Or Justice on The Natural Rights Frontier, 6 Nexus J. Op. 121, 127-128 (2001).

Social constructs: I was going to say that Will Baude is wrong, but I�m afraid I�m way too confused to say whether he�s wrong or not. First he makes the mortifying statement that slavery is �wrong because I say it�s wrong�nothing more.� But then he says �even if you didn�t [think slavery is wrong], slavery would still be wrong....� So which is it? Subjectivism? Apparently not; apparently it�s solipsism!

Human freedom can indeed be deduced from human thought; it is a self-evident truth. All human beings are equally human beings; they all possess the quality (rationality) which makes them human. That quality is incompatible with coercion, and, more importantly, that equality means that no human being is naturally entitled to dominate over other human beings. (At the very least, one who claims that right must prove his assertion that he has that right. Baude, by demanding a logical proof of freedom, is essentially demanding proof of a negative.) As a result, they have the right to government by consent. But as there is no right to consent to that which is not rightful, there is no right to create an unjust political system, including slavery. I have no natural right to steal from a man, I cannot therefore use the state to do that to him, or to reduce him to slavery. So the syllogism Baude seeks might be put this way�1) all men are created equal, 2) they are endowed by their creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness; 3) that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

As for deducing the beneficent premise from human rationality, I think there�s nothing different between this and Aristotle�s deduction of liberality in the Nichomachean Ethics. Liberality is a consequence of living well, really; an overfulness of spirit that results from approaching life in the right way.

But that�s a separate issue from saying that slavery (&c.) is only wrong �because I say it�s wrong.� And he claims that this proposition isn�t positivism; that somehow or another slavery would still be wrong if everyone else thought it was right. This throws me so much that I don�t think I can really formulate a reply. If ethics is �socially constructed,� what�s it constructed out of? Fluff and dandruff? Or is it constructed out of human experience? If it�s constructed out of human experience, I would suggest that these experiences reveal the contours of human nature underlying them. Take the example of property rights. As Richard Pipes notes in his recent book on property�and as Larry Arnhart also notes in his excellent, and insufficiently noted, Darwinian Natural Right�there have been many, many attempts to create societies without a concept of property rights, and every single one of them has failed miserably. Surely, if ethics is a social construct, one of these societies would have worked, and we would have found some place where theft did not offend the victim! Yet among nursery school kids, property rights are the leading cause of conflict. Have they been that thoroughly infected, in such a short time, with the �social construction� of property rights? Maybe. But what about the Kibbutzim? Writes Pipes,

�in his pioneering work on communistic kibbutzim in Israel, Melford Spiro found the same acquisitive impulses and envy of possession among kibbutz children as among those living under capitalism. Brought up in communal nurseries, they would claim as property such objects as paints and towels and know precisely what it meant to say �It�s mine.� �[T]here is abundant evidence in all but the very youngest children, that the preschool children [aged two to four] do perceive certain objects as belonging to them.� In grade school �they are strongly assertive of their property rights....� It is only as they grow up that, under the influence of communal ideology, they come to deny the need for private possessions.� (p. 74)

That suggests, although it does not absolutely prove, that property is a natural tendency of the human mind, and that it is collectivism that is a �social construct.� Why would a child get mad about you taking away �his� blankee if moral philosophy has no connection to our nature? The concept of property includes anger when one�s property is taken. That anger is not a social construct. And that anger is exactly the same feeling that results when one is reduced to slavery. It is natural to human beings not to want to be slaves. The cause of this, Rand would say, is because human beings, as rational animals, do not live lives that are compatible with coercion. Aristotle would say that it is unnatural to reduce a freeman to slavery because it blocks his capacity to accomplish his teleological drive to flourish as a human being. I prefer Aristotle�s phrasing, but they�re the same idea�slavery is contrary to human nature.

Now, the whole issue of a natural ethics is complicated, of course, by the fact that a great deal of our ethics is �socially constructed,� in the only sense in which that phrase can have any real meaning; that is to say, there is no natural reason why we must drive on the right in the United States; they do the opposite elsewhere. This is therefore a mere convention. Yet, underlying that convention is something natural�that is, we need to find a way to avoid collisions to spare people�s lives. (The convention embodies this underlying natural need. This distinction is analogous to the distinction between civil rights (social conventions) and natural rights (rights which are ours because we are human beings.)) Moreover, the line between nature and convention is nowhere near easy to draw, since, as human beings, it is in our nature to adopt conventions! Nevertheless, while humanity has been remarkably diverse in its adopted cultural mores, these conventions reveal real underlying contours of human nature which, I suggest, give rise to moral laws that are every bit as objective as the laws of economics (indeed, the laws of economics, I suspect, only exist because of the validity of these underlying moral laws).

This reminds me of Cass Sunstein�s statement that because �governmental rules lie behind the exercise of rights of property, contract, and tort,� private property is just a social convention like any other. Cass R. Sunstein, A New Deal for Speech, 17 Hastings Comm. & Ent. L. J. 137, 140 (1994). He explains elsewhere that �a major problem with the pre-New Deal framework was that it treated the existing distribution of resources and opportunities as prepolitical and presocial...when in fact it was not.... [The] private or voluntary private sphere...was actually itself a creation of law and hardly purely voluntary. When the law of trespass enabled an employer to exclude an employee from �his� property unless the employee met certain conditions, the law was crucially involved. Without the law of trespass, and accompanying legal rules of contract and tort, the relationship between employers and employees would not be what it now is; indeed, it would be extremely difficult to figure out what that relationship might be, if it would exist in recognizable form at all.� Democracy And The Problem of Free Speech 30 (1993). But in fact it�s very easy �to figure out� what the relationship between employers and employees would be �[w]ithout the law of trespass, and accompanying legal rules of contract and tort.� Many societies in the twentieth century have abandoned such laws, and the consequences have been thoroughly documented. Just recently, in fact, President Hugo Chavez of Venezuela nationalized Coca-Cola bottling plants in his country. A recent news article illustrates what �that relationship might be�:

Images broadcast live on three television networks showed the troops throwing the protesters, most of them women, to the ground and then kicking cans of tear gas at them. In an interview with reporters, the officer in charge of the action, Gen. Luis Felipe Acosta Carles, taunted the news media and insulted plant managers. News reports said workers at the plants were beaten.

�We are distributing this product to the population because collective rights come above individual rights,� Acosta said, slurping down a warm soft drink and belching into the camera. �What I see here is hoarding, and we are going to move these products.�

Troops later pushed their way into a warehouse of the beer and food maker Empresas Polar, Venezuela�s largest private company, also in Carabobo, after forcing managers out into the street.

Ginger Thompson, Venezuelans Seize Warehouses, Deseret News, Jan. 18, 2003 at A4, 2003 WL 4349232 (Thanks to Tom Palmer for that pointer). Now, if morality is just a social construct, what�s wrong with that? And why does such behavior lead to shortages and high prices in Venezuela? If the people just decide that theft is not wrong, why would shortages be unavoidable?

Whoops! II: A more serious error from Richard Epstein in a newly released article, as pointed out by a colleague: �The general problem with takings law is the huge gulf in the rules that govern physical and regulatory takings. It is not possible to draw any principled line between these types of takings that justifies the use of strict scrutiny in the former case and [the] rational basis test in the latter.� Trade Secrets as Private Property: Their Constitutional Protection, 23 (Jul 14, 2003) U Chicago Law & Economics, Olin Working Paper No. 190. The problem is that regulatory takings are not subject to the rational basis test; they�re subject to the substantial advancement test. The Court has repeatedly and explicitly refused to lower the level of scrutiny for land use regulations to a rational basis level (thank goodness!)

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), for instance, Justice Scalia explained for the Court that �our opinions do not establish that these standards are the same�. To the contrary, our verbal formulations in the takings field have generally been quite different. We have required that the regulation �substantially advance� the �legitimate state interest� sought to be achieved�not that �the State �could rationally have decided� that the measure adopted might achieve the State�s objective.�� Id. at 834 n.3. The difference between the rational basis standard and the substantial advancement standard is very well illustrated in Richardson v. City and County of Honolulu, 124 F.3d 1150 (9th Cir.1997), in which the court upheld a regulation under rational basis standards, id. at 1162, but struck it down on substantial advancement grounds. Id. at 1165-66.

Pinups: A while back, I blogged about how much I enjoyed Esquire�s pinup photos starring Jennifer Lopez. I see they�ve finally posted them on line, so if you�re too cheap to go buy the magazine, you can enjoy them at this link.

Fame!: Thanks to Classical Values for the link. Ovid had a postage stamp! Who�s next, Ayn Rand? Or Aristotle?

Naturalistic �fallacy�: Matt at The Buck Stops Here claims that �There is no way to bridge the is/ought gap without referencing an extra-natural source.� This, however, is untrue. It�s certainly a popular thing for mysticists to think, but in truth, an ethics of reason is, indeed, possible.

Whoops!: I was recently groaning over numerous errors in a recently published article, several of which were caused by the law review staff. But then a colleague pointed out the following: �Finally, part IV examines the recent decisions by the United States Supreme Court in Nollan v. South Carolina Coastal Council�.� Richard A. Epstein, The Permit Power Meets The Constitution, 81 Iowa L. Rev. 407, 408 (1995).

Conrad: I may have mentioned that one of my favorite writers of all time is Joseph Conrad. I�ve lately been watching a BBC movie version of Nostromo. It�s pretty bad. Most of it consists of the actors essentially telling the story to the viewers, rather than actually, you know, acting or anything.

But I don�t blame them too much. It�s practically impossible to make a film out of Conrad�s work. The greatest thing about Conrad is his amazing use of language, which simply cannot transfer to the screen. And his stories are often extremely complicated. Many of his books, including Heart of Darkness, are narrated by one of the characters�almost the entire thing is a testimonial by the unusually introspective character Marlow, who also figures in many of Conrad�s other books. Half of the book consists of Marlow�s intense ruminations on the events that he experienced�which can�t transfer to a mimetic format. Not to mention the fact that none of his characters speak in anything approximating realistic dialogue. This wouldn�t be an insurmountable obstacle, were it not for the fact that his stories are also told in complicated loop-de-loops of narrative timing. Nostromo, for instance, includes several flashbacks, and even flashbacks within flashbacks. Add to that the various layers of narration, and it becomes very difficult to follow a Conrad novel. At one point in Lord Jim, my favorite of Conrad�s novels, Marlow is telling the story as told to him by someone else, and that story includes another character reading a very long letter about what happened at another point in time�so that you have essentially one character saying what another character is saying what another character is saying what another character is saying happened. If you can follow along on the first reading, you�re a better reader than I.

But these complications are worth it, I think, because Conrad is such an exquisite writer that after you read one long, complicated paragraph, you actually want to go back and read it a second time. His use of language is absolutely unbeatable. Take, for example, a passage from Heart of Darkness. This is Marlow describing his journey down the Congo River, in search of the elusive and shadowy figure of Mr. Kurtz. The boat Marlow is on comes around a bend and they encounter a tribe on the riverside:

���suddenly, as we struggled round a bend, there would be a glimpse of rush walls, of peaked grass-roofs, a burst of yells, a whirl of black limbs, a mass of hands clapping, of feet stamping, of bodies swaying, of eyes rolling, under the droop of heavy and motionless foliage. The steamer toiled along slowly on the edge of a black and incomprehensible frenzy. The pre-historic man was cursing us, praying to us, welcoming us�who could tell? We were cut off from the comprehension of our surroundings; we glided past like phantoms, wondering and secretly appalled, as sane men would be before an enthusiastic outbreak in a madhouse. We could not understand because we were too far and could not remember because we were travelling in the night of first ages, of those ages that are gone, leaving hardly a sign�and no memories.

��The earth seemed unearthly. We are accustomed to look upon the shackled form of a conquered monster, but there�there you could look at a thing monstrous and free. It was unearthly, and the men were�No, they were not inhuman. Well, you know, that was the worst of it�this suspicion of their not being inhuman. It would come slowly to one. They howled and leaped, and spun, and made horrid faces; but what thrilled you was just the thought of their humanity�like yours�the thought of your remote kinship with this wild and passionate uproar. Ugly. Yes, it was ugly enough; but if you were man enough you would admit to yourself that there was in you just the faintest trace of a response to the terrible frankness of that noise, a dim suspicion of there being a meaning in it which you�you so remote from the night of first ages�could comprehend. And why not? The mind of man is capable of anything�because everything is in it, all the past as well as all the future. What was there after all? Joy, fear, sorrow, devotion, valour, rage�who can tell?�but truth�truth stripped of its cloak of time. Let the fool gape and shudder�the man knows, and can look on without a wink.�

Listen to the rhythm of those sentences! It actually sounds like jungle drums! Now, some, most notably Chinua Achebe, have taken this passage, among others, as evidence of Conrad�s racism, and have denounced him as an evil cultural imperialist. This is far more ridiculous (if that�s possible) than the routine denunciations of Twain�s Huckleberry Finn for being racist. Huck Finn is not a racist book, but it�s understandable that with some of its language, people unfamiliar with the work might think that. But with Conrad, there�s just no excuse. Heart of Darkness is an intense and thorough denunciation of colonialism and the brutalities of the Belgian Congo. The theme of power corrupting runs through it like a vein, and is wrought with such intense seriousness, that only the most willfully blind could fail to see it, or admit it. Take a look, for instance, at this passage, in which Marlow enters a clearing, and discovers the bodies of abused native workers who have simply been left to die:

���it seemed to me I had stepped into the gloomy circle of some Inferno. The rapids were near, and an uninterrupted, uniform, headlong, rushing noise filled the mournful stillness of the grove, where not a breath stirred, not a leaf moved, with a mysterious sound�as though the tearing pace of the launched earth had suddenly become audible.

��Black shapes crouched, lay, sat between the trees leaning against the trunks, clinging to the earth, half coming out, half effaced within the dim light, in all the attitudes of pain, abandonment, and despair. Another mine on the cliff went off, followed by a slight shudder of the soil under my feet. The work was going on. The work! And this was the place where some of the helpers had withdrawn to die.

��They were dying slowly�It was very clear. They were not enemies, they were not criminals, they were nothing earthly now�nothing but black shadows of disease and starvation, lying confusedly in the greenish gloom. Brought from all the recesses of the coast in all the legality of time contracts, lost in uncongenial surroundings, fed on unfamiliar food, they sickened, became inefficient, and were then allowed to crawl away and rest. These moribund shapes were free as air�and nearly as thin. I began to distinguish the gleam of the eyes under the trees. Then, glancing down, I saw a face near my hand. The black bones reclined at full length with one shoulder against the tree, and slowly the eyelids rose and the sunken eyes looked up at me, enormous and vacant, a kind of blind, white flicker in the depths of the orbs, which died out slowly. The man seemed young�almost a boy�but you know with them it's hard to tell. I found nothing else to do but to offer him one of my good Swede's ship's biscuits I had in my pocket. The fingers closed slowly on it and held�there was no other movement and no other glance. He had tied a bit of white worsted round his neck�Why? Where did he get it? Was it a badge�an ornament�a charm�a propitiatory act? Was there any idea at all connected with it? It looked startling round his black neck, this bit of white thread from beyond the seas.

��Near the same tree two more bundles of acute angles sat with their legs drawn up. One, with his chin propped on his knees, stared at nothing, in an intolerable and appalling manner: his brother phantom rested its forehead, as if overcome with a great weariness; and all about others were scattered in every pose of contorted collapse, as in some picture of a massacre or a pestilence. While I stood horror-struck, one of these creatures rose to his hands and knees, and went off on all-fours towards the river to drink. He lapped out of his hand, then sat up in the sunlight, crossing his shins in front of him, and after a time let his woolly head fall on his breastbone.��

Listen to that language! �The tearing pace of the launched earth had suddenly become audible.� I have no idea what that means, literally, and yet it absolutely seethes with literary force. It is like a song, no single note of which can be isolated, and yet, when played together, overwhelms you and sweeps you off into the world Conrad has built for you to witness. And while some passages (�you know with them it's hard to tell,� for instance) might be offensive if taken out of context, that context makes clear that Conrad is trying to makes his audience reach a sympathy with something alien to them; that�s what all reformers try to do.

One criticism that might validly be leveled at Conrad, I think, is his sexism; it�s a gallant sort of sexism, of the Victorian variety. Conrad does not think women stupid or incapable, quite the opposite�he romanticizes them intensely. In many places, the result is rather silly. But at other times, he strikes straight to the center of feelings with which, I think, any man who has been in love can sympathize. For instance, this marvelous passage from Lord Jim:

�I suppose she too must have lacked the saving dullness�and her career ended in Patusan. Our common fate . . . for where is the man�I mean a real sentient man�who does not remember vaguely having been deserted in the fullness of possession by some one or something more precious than life? . . . our common fate fastens upon the women with a peculiar cruelty. It does not punish like a master, but inflicts lingering torment, as if to gratify a secret, unappeasable spite. One would think that, appointed to rule on earth, it seeks to revenge itself upon the beings that come nearest to rising above the trammels of earthly caution; for it is only women who manage to put at times into their love an element just palpable enough to give one a fright�an extra-terrestrial touch. I ask myself with wonder�how the world can look to them�whether it has the shape and substance we know, the air we breathe! Sometimes I fancy it must be a region of unreasonable sublimities seething with the excitement of their adventurous souls, lighted by the glory of all possible risks and renunciations. However, I suspect there are very few women in the world, though of course I am aware of the multitudes of mankind and of the equality of sexes�in point of numbers, that is.�

Movies cannot capture that sort of thing, and the complicated�though compelling�plots of Conrad�s novels therefore make for not-so-great movies. I was never a fan of Apocalypse Now, for instance, only the last fifteen minutes or so of which has anything to do with Heart of Darkness. The movie of Heart of Darkness made by TNT, with Tim Roth and John Malkovich, is not unbearable, but hardly Conrad. The only really good Conrad movie I know is the movie version of Lord Jim starring Peter O�Toole as Jim, and it succeeds only because it diverges from the book, and accomplishes much of what Conrad does�but by using techniques that work on the screen, rather than attempting to actually film a Conrad novel.

Startling: A pretty upsetting interview about the state of public defender work. (Thanks to Amy for the pointer.)

No answer yet: Legalguy�s moving, so he hasn�t yet answered my points. But we�ll wait politely.

More funeral protectionism: An excellent article on the ludicrous sorts of economic regulations that survive rational basis scrutiny. I love this part: �Under Georgia�s new law, crematories must employ embalmers despite the fact that crematories have no need for their services.� And of course, all of this is done to protect the consumer, right? Well, of course not. But anything that a rational legislator could have considered possibly related to any conceivably legitimate government purpose is a-okay with the court!

In America of the Twenty-First Century?: Those who claim that the government may legitimately regulate private, adult, consensual sexual activity, are advocating this kind of world. Are you comfortable with that? (Saw it on Hit & Run.)

That�th amathing!: Doctors perform the first ever tongue transplant. (Thanks to Deb for the pointer.)

Fame!: Thanks to Will Baude for the link. Can you believe that all this time I never noticed that it was Crescat Sententia? I was never reading closely enough to notice the pun. I will fix that on the blogroll shortly. Also, thanks to The Cur, who, um, seems to have misunderstood.... My point was that one should not use the word �governance.� Dammit!

Ovid: Last night I was sharing with someone highlights from Ovid�s Art of Love. If you�re not familiar with this book, it was written around A.D. 1, and it�s a great book of romantic advice; the first two parts are �how to make a girl like you,� and the third is for girls, and is �how to make a guy like you.� Well, it�s a bit more salacious than that. It includes advice on how to fake an orgasm, how to have an extramarital affair, and so on. That�s why it�s long been a delight of college Latin students�of whom, fortunately, I was never one.

Anyway, what I like about it is how it shows something really obvious: that Romans were just like us. We tend�or at least, I tend�to think of people from two thousand years ago as being fundamentally different, somehow. We have so little in common with them that it�s easy to imagine that it was a totally different world, and that people didn�t act then the way they act now. But the reality is, they were just like us in so many ways�they had the annoying in-laws and the messy houses and the silly friends and loved pets and everything that we have; or pretty much so. And so it�s great to read this and see how the advice Ovid gives still rings true (or, at the very least, guys still try the same techniques and make the same mistakes):

�Love sparkles in the cup and fills it higher;
Wine feeds the flames, and fuel adds to fire.
But choose no mistress in thy drunken fit;
Wine gilds too much their beauties and their wit.
Nor trust thy judgment when the tapers dance;
But sober, and by day thy suit advance.�

Here, Ovid explains how to pick up girls at chariot races:

�boldly next the fair your seat provide,
Close as ye can to hers�and side by side.
Pleas�d or unpleas�d, no matter, crowding sit;
For so the laws of public shows permit.
Then find occasion to begin discourse;
Enquire whose chariot this, and whose that horse?
To whatsoever side she is inclin�d,
Suit all her inclinations to her mind;
Like what she likes, from thence your court begin.
And whom she favors, wish that he may win.�

And of course, you should always know everything:

�If she enquires the names of conquer�d kings,
Of mountains, rivers, and of hidden springs,
Answer to all thou know�st; and if need be,
Of things unknown seem to speak knowingly:
This is Euphrates, crown�d with reeds; and there
Flows the swift Tigris, with his sea-green hair.
Invent new names of things unknown before:
Call this Armenia, that the Caspian shore;
Call this a Mede, and that a Parthian youth;
Talk probably,�no matter for the truth.�

And then, of course, there�s the all-important money. This passage reminds me of the Simpsons episode where Homer asks his high school guidance counselor for advice on wooing Marge. �Well, that�s not the sort of guidance I give,� the counselor says. �But I like to think I do something for every student M through Z. Well, try to share common interests, and spend, spend, spend!� Anyway, here�s Ovid�s version:

�Ill omens in her frowns are understood;
When she�s in humor, ev�ry day is good.
But than her birthday seldom comes a worse,
When bribes and presents must be sent of course;
And that's a bloody day that costs thy purse.
Be stanch; yet parsimony will be vain:
The craving sex will still the lover drain.
No skill can shift them off, nor art remove;
They will be begging when they know we love.�

Two thousand years ago. Plus ca change, plus c�est la meme chose (�hm. How do you do that c with the little thingy? Or, as they call it in French, �la c avec la petite chose-y?�)

Guinn v. Nevada Legislature: Last night, around midnight, I guess, the Nevada Legislature passed a budget with the constitutionally required 2/3 majority.

Things I love about my job: Something that occurs to me frequently, but which I too infrequently comment upon, is how smart are the people with whom I work. It�s one of the best things about my job. One lawyer in the office, for instance, a UC Berkeley grad about my age, is so intelligent that it is really astounding to watch him analyze a problem; he can toss a problem into the air and slice it in four before it hits the ground. Another lawyer is so fast at writing and proofreading briefs, coming up with ways of putting complicated issues in a simple form�and we dump half a dozen briefs on her in a day, and she manages to keep up. I work with people who have created the precedents that every law student in this country studies. And not just in my office, but people I know in this field�just this week I have worked with some of the finest minds in this profession, and at times it has been truly awesome. I�m extremely grateful for that. Sometimes, in the middle of a conversation about some obscure part of legal procedure, it occurs to me, and it�s one of those small joys that you have to remember to notice, or, like so much else in life, it�ll slip right past you.

A little wisdom there from sage old Tim�guess you can tell how tired I am!

Guinn v. Nevada Legislature: Petition for rehearing was filed today. Here�s the Pacific Legal Foundation�s amicus brief supporting that petition.

License plates: This is a fun story about explaining license plates to DMV folks. When I went to pick up my license plate, 198US45, the clerk says, �Wait a second; I think that�s just a regular license plate.�

�No,� I said, �it�s a lawyer joke.�

�Oh?� Then follows that look which means she wants to be let in on it...

�Well, see, there�s this Supreme Court decision that all other lawyers think is the worst thing the Court ever did, but which I think was great, and this is the code for that case.�

Silence, and a blank stare.

�See, this case said that the government has no right to stop you from earning a living in the way you want to.�

�But...� the clerk says, �they do that all the time!�

There are just no words: but...wow. (Saw it on CrimLaw).

If six monkeys�.: Will Baude responds to my hyperliteral response to Stuart Buck. Yeah, I know, I know. I was just teasin�. I would have thought it remarkable, too, if it had happened to me. Indeed, �a weaker man might be moved to reexamine his faith, if in nothing else, at least in the law of probability.� But I think it�s just a spectacular vindication of the principle that each individual license plate driving by individually is as likely to come down one way or another and should cause no surprise each individual time it does.

What are the odds?: Stuart Buck tells an interesting story: �One of the most mind-boggling coincidences I ever saw: While driving on I-395 in DC last year, a car passed me on the left. Its license plate read: �Tax Man.� The very next car that passed me on the left had a license plate that read: �Law Man.� In other words, the Law Man was following the Tax Man. (And the two cars weren�t together; the Tax Man car exited soon thereafter and the Law Man car kept going.) I mean, what are the odds?�

Well, if I know my statistics well enough�and I�m sure Sasha Volokh will correct me if I�m wrong�the odds are exactly the same as the odds of seeing any two particular license plates following one another. That is, the odds of seeing LAWMAN following TAXMAN are the same as the odds of seeing 3JV24F following 35V4FD one right after the other; and those odds are the same as the odds of seeing GH2CDB following 056FEF....and so on. So in that sense, it�s not mind-boggling in the least; or at least, it�s exactly as mindboggling as it is every single time you see any license plate follow another!

Pat Robertson: So there�s been some hubub about Pat Robertson praying for the Justices to decide to retire. I think a lot of folks interpreted that as him praying that they�d die, and they were offended by that. Well, understandable. But here�s a passage from a letter Thomas Jefferson wrote to James Madison about Patrick Henry, whom Jefferson really did not much like: �If [a state constitutional convention] could be obtained I do not know whether it would not do more harm than good. While Mr. Henry lives another bad constitution would be formed, and saddled for ever on us. What we have to do I think is devoutly to pray for his death�.� Letter to James Madison, Dec. 8, 1784, in 1 The Republic of Letters 353-354 (J. Smith ed. 1995).

Update: One reader writes �I think it�s obvious that [Jefferson] was not making a public plea for
prayers, while Robertson was.� Certainly that is the case; this was a private letter from Jefferson to Madison, and part of it was even in code, to ensure nobody would read it. I hope it didn�t come off like me defending Pat Robertson generally; I think the man�s a moron or a mountebank. My point was only that we all tend to wish for people�s demise secretly, much as we should not. Robertson has the unfortunate habit of doing it repeatedly and publicly.