Epstein on Natural Law, Ancient and Modern

A few brief thoughts I may return to later, time and study permitting.

One of the many wonderful things about our modern life is how quickly and easily accessible things are which would have been either inaccessible or time-consuming to access just a few brief years ago.  I recently stumbled upon a couple of Richard Epstein talks recorded on youtube.   They virtually allow one to attend those talks from the past – from any time and place.  How remarkable, if you pause for a moment to not take the development for granted.

This one here, in particular, is well worth watching: https://www.youtube.com/watch?v=R_ge4tYI8Vk

It is entitled “Natural Law in Ancient and Modern Guise.”  It is from 2010, and runs about one hour, with extra time for questions/answers. 

Epstein, a prolific academic writer and thinker, speaks, as always, in complete paragraphs, quickly and effortlessly.  He clearly knows his topics backwards, forwards, and sideways.  Even if one is inclined to disagree with him altogether, or in part, it is always most challenging and rewarding to hear the opposite side of the argument cogently argued.

For those inclined to agree, watch it twice. 

Or thrice.

I find that many who think well and deeply about political theory and philosophy are relatively uninformed about, or ignore altogether, economics and the revolution in economic life over the last quarter millennium.  Economists, however, often have a naïve or diminished view – or even an unmanly contempt for - the political and cultural structure that necessarily provides the foundation for a free and peaceful economic life.  

Epstein falls into neither camp.  He has a commanding grasp of both economic theory and of political philosophy.  He comes at all this, somewhat uniquely, from the standpoint of the law, and as a law professor.  As a non-lawyer I find this intriguing.  When he talks about economics and political theory, he typically thinks about not just the theory and broad “constitutional” questions (meant here not to only refer to the US constitution) but also the very specific legal issues that arise.  His description of Roman law and the pre-Thomistic “natural law” is fascinating.   He ties this to Anglo-American law, written and unwritten.

(There is also an insightful question and answer exchange around the question of natural right and natural law.  One is reminded that Leo Strauss pointed out that the ancient philosophers contrasted “nature” and “law/custom[nomos].”  Justinian Roman law, one assumes, could think about laws which are natural [not customary] since the Empire had created a universal political and legal system, a situation distinct from that of the ancient city).

Epstein's strong preference is for the classical liberal position, in politics, in law, and in economics.  He explains how these are intrinsically linked.

The concluding remark is this:  “Essentially the lesson is, unless you can master the ancient conceptions of natural law, you will never be able to do modern public policy well.”  How he gets there is an hour well spent.

Epstein also has a “new” book out (2014) that is on my list to read.  “The Classical Liberal Constitution: The Uncertain Quest for Limited Government”

Amazon link:  http://www.amazon.com/The-Classical-Liberal-Constitution-Government/dp/0674724895

He gives another fine talk on that book and on Hayek here:  https://www.youtube.com/watch?v=DhqXIc5CEpU

The Pursuit Of Happiness

At the risk of over-simplifying, two of the great stumbling blocks in modern thought fall under the following categories:

1)      Rousseau’s erroneous anthropology (as argued for in “Discourse on the Origin of Inequality”). 

      Here he makes an explicit and self-conscious argument against the naturalist tradition.  He argues directly against Aristotle’s biological understanding of man, in addition to the obvious argument against Locke’s Second Treatise view of man in the state of Nature.  Rousseau’s “natural man” is a sort of solitary great ape, not a social creature at all.  The transition to civil society reflects the uniquely malleable nature of humans, and stresses in turn the uniqueness of human cultural evolution, and history, compared to that of other species.  Upon entering civil society, human kind is changed, fundamentally transformed, in this view. 

      And as civil society continues to change, so does mankind – fundamentally and fully.  Many of the left’s utopian assumptions about the lack of human nature, or about its infinite malleability over the intervening two centuries, rest implicitly on this argument, more or less.  It is, however, an argument that – I write this without in any way denying the significance and power of human culture and history - suffers from that fact that it is simply biologically, anthropologically, and historically undeniably false. 

2)      The “positivist,” or scientific view, that radically separates “facts” from “values.” 

     This is the familiar brand of nihilism that no longer feels it possible to use human nature as a guide for judgments about better and worse.  In addition to “Fact/Value” distinction, one sometimes here finds formulations such as “naturalist fallacy” or “is/ought” distinction.  Time permitting, I will return to this at a later date. 

     That said, there have been attempts to escape the nihilistic conclusion without taking the bull - head on - by the horns.  One such attempt is the kind of radical utilitarianism associated with Bentham.  In short, this takes simple cost/benefit analyses and extrapolates them to all human goods, including “the good” overall, and then sums the results across populations. 

     Now, of course, one cannot just assume what is good for humans, without an analysis that uses some standard, or in its own language, without making a “value judgment.”  So the attempt to sidestep the central problem fails from the beginning – before even getting started. 

     This sort of error – one that stems from failing to tackle the issue head on – I have read referred to as “the Dizzy Dean effect.”  (Dean, of course, was a standout baseball pitcher.  He fractured his toe in the 1937 All Star game [“fractured, hell, the damn thing’s broken!” he is said to have replied].  Coming back too soon, he favored the foot in question, resulting in a long-standing injury to his pitching arm – due to the changed mechanics).  A well-known example of the Dizzy Dean effect in constitutional law would be the Brown v. Board of Education decision, where the justices feel compelled to cite psychology studies, etc., so that they can overturn Plessy v. Ferguson while still showing some respect for stare decisis.  The better argument for the same, correct decision was Justice Harlan’s famous dissent in Plessy: “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”  And, so, it should have been after the Civil War ammendments.  Sometimes, you need to either stop pitching for awhile, or step on the damn toe. 

     To return to the errors of an ungrounded utilitarianism, I finally get to the point of this rambling post:  The economics/psycholology so-called “happiness” literature.  You have no doubt seen these referecnes to countries graded not by GDP/capita, or economic freedom indices, etc. but by some “happiness” scale.  Here is a link to a delightful article from 2012 by “Deirdre McCloskey” that pays back the time spent reading with a little wisdom: 


http://www.newrepublic.com/article/politics/magazine/103952/happyism-deirdre-mccloskey-economics-happiness

I will leave the article to speak for itself. 

Suffice it to say, that it raises several questions, including:  What is happiness?  What is human nature?  What is this Aristotlean concept of “eudaimonia.”  Is an Aristotlean (teleologic) ethics consistent with modern science? 

In addition, there is, as an aside, a jab placed squarely on the jaw of the “cult of statistical significance.”  This points to broader epistemologic questions, and gives me a chance to post one of my favorite quotes:

“Our discussion will be adequate if it has as much clearness as the subject-matter admits of, for precision is not to be sought for alike in all discussions, any more than in all the products of the crafts. Now fine and just actions, which political science investigates, admit of much variety and fluctuation of opinion, so that they may be thought to exist only by convention, and not by nature. And goods also give rise to a similar fluctuation because they bring harm to many people; for before now men have been undone by reason of their wealth, and others by reason of their courage. We must be content, then, in speaking of such subjects and with such premises to indicate the truth roughly and in outline, and in speaking about things which are only for the most part true and with premises of the same kind to reach conclusions that are no better. In the same spirit, therefore, should each type of statement be received; for it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits;” 

Aristotle Nicomachean ethics, I.iii.1-4.

(emphasis mine)

Credit for "Dizzy Dean" effect:  George Anastaplo's writings.  I am not certain that he ever uses it specifically to refer to Brown v. Board, however.

On Tying and Cutting Knots

     The post below is a continuation of a comment made to a three year-old post, belonging to my good friend at the Lawodyssey blog. In any case, the best stories often start in the middle, I have read.

     In response to the thorny questions that arise during the gay marriage debates, a libertarian solution is sometimes put forward that marriage should be private, or left to society, and government should not license marriages. As Lawodyssey put it, this might be a way to cut this particular “Gordian Knot.” My question is if this is possible, even hypothetically, if not practically. And far from representing a neutral and classically liberal solution, is it in fact a normative stance in itself. The relationship of husband/wife has a rich and robust heritage in our legal system, and the common law antedates any of our positive law (I assume) in this regard. Would this all disappear, and how would cases by handled? All sorts of cases regarding property, taxes, inheritance, children, legal testimony, etc. would be affected. Take also a simple case of next-of-kin. Typically one’s spouse is, by default, one’s next of kin. Imagine the following example: A 45-year old married man with three minor children was himself an only child, and has parents who are deceased (relatively pre-maturely, but certainly not unimaginable). He is involved in some horrific motor vehicle accident, and the state trooper and hospital attempt to notify his next-of-kin. Under current law this is his wife. If the law does not recognize marriage in any sense, then this would be his closest living blood relative of adult age (aunt, uncle, cousin, etc.). This is clearly both normative (the state and law making a decision that his second degree relative is closer to him and more important than his wife) and nonsensical. The only legal solution would be to draft a medical power of attorney naming one’s spouse, or to invent a new legal definition for spouse, called something else. But we already have this name: husband/wife. We have an ancient word for the surviving spouse: widow/widower. We have no such word for the surviving brother/sister, let alone cousin, and for good reason. But to call a husband/wife something else would just be to take our current risible taste for calling secretaries “administrative assistants,” and waiters “servers,” to an Orwellian level. It seems, then, self-evident from the viewpoint of the traditional legal and commonsense understanding that marriage is the one relationship between non-relatives that supersedes all other relationships between relatives, i.e. to state the obvious: it is the conjugal union between “non-blood relatives” that creates “blood relatives”. Marriage is the origin of the family.

     If one concedes that there is difficulty divorcing marriage from the law, then one must actually pivot to think further about marriage, it seems to me.

     I realize that there has emerged a new, current consensus, more or less, on gay marriage, held by many educated and sophisticated people. The “strawman” simplistic version of this involves an argument that chalks up prior views on homosexuality (let alone the heretofore foreign notion of gay marriage) to simple unenlightened bigotry, along the lines of past views about religion or race. Careful reflection for more than half a minute, however, suggests that black: white or Jew: Protestant and homosexual: heterosexual are not even rough analogies, by any logical analysis. The stronger argument runs something like: Some small but significant % of the population is homosexual; it is a disposition that they share with other consenting adults (i.e. there is no force or fraud), and as such there need not be any shame in this, nor prosecution, nor persecution. Moreover, these are very often good, productive, caring people, who ought to be treated the same in all regards as their more numerous heterosexual brothers, sisters, and neighbors. One of the hallmarks of a legitimate liberal democracy is the protection of the rights of minorities, after all. And for homosexuals in long-term relationships that desire to be married under the law – with all that this entails - how can one rightfully and fairly deny this? How can one deny homosexual marriage without “denying” homosexuality itself?

     However, Lawodyssey also implied in his original post that marriage exists chronologically and ontologically prior to the state, prior to the law. How do we take something that exists by nature, then, and profoundly amend the traditional, or common-sense understanding of it without first presenting an argument about that traditional understanding, including how and why it is either a flawed or incomplete, based on our new knowledge?

     Like all of human nature, marriage exists in a variety of forms, but not infinite forms. There is cultural variation within those natural boundaries, and individual variation bounded generally by both the cultural norms, and by human nature.

     A cursory review of human history would suggest that certainly, for instance, marriage is not just a custom of Jews, Christians, and Muslims. A few observed patterns and examples that exist across time and place, that illustrate the nature of marriage, may be helpful: 1) Men are jealous 2) Women are selective. 3) Husband/Wife double as – become - Father/Mother. 4) Young, fertile women are coveted. In ancient times and foreign places men were sometimes killed so that women could be stolen as wives. While this was not the standard means of obtaining a wife, even in such times and places, in no time or place did women physically capture men to take as their husbands. 5) Monogamy is very common, and in certain places and times polygamy is found. This polygamy is, however, without exception one husband and multiple wives, never the other way around. 6) Never are incestuous marriages condoned. One could continue with more examples of what is known historically and anthropologically.

     Now the Aristotlean might also go so far as to say that the best form of marriage is that which is best by nature – i.e. most likely to create happiness and flourishing for husband, wfe, and children. Prudence, however, would show that this would vary also by culture – but not infinitely so. I will leave these thoughts aside, for the moment, about better and worse marriage.

     It quickly becomes clear, then, that any careful discussion about both the nature of marriage and about the traditional commonsense (and legal) understanding of marriage seems to not only include the love of the husband and wife, but also to point beyond the mere courtship and the erotic or romantic love to its natural end: the family – to biology, to flourishing, to procreation and the rearing of children (the “being of being” for a people, if one excuses the Greek). If this fuller understanding is indeed marriage, what then, exactly, is gay marriage? How do we think about it other than as some imprecise comparison – similar in some superficial regards, but fundamentally different in all others? Does it matter? In what way is the traditional view of the nature of marriage inadequate or incomplete by leaving out this new concept? How is our view of marriage improved by adding a version that includes gay marriage? Is this new concept true knowledge about reality? Can it be just without representing a better understanding? On what basis?

     I have done my best, to briefly make both cases. On which side does one place the burden for making the stronger argument? Is there a compromise?