Grasping the past (1)

The libertarian blogosphere in the US has been having a bit of a barney over how to think about the past and the progress of liberty in US history.

It started with David Boaz’s piece in Reason pointing out that many current day Americans (particularly black Americans) had more liberty now than their equivalents did in the C19th, so talking about some past “golden age” of liberty was mistaken.

The piece generate a lot of remarkably grumpy comments: grumpy because people were obviously quite enamoured of positive views of American history, were tired to being beaten with the stick of slavery and very much of the view that liberty had been steadily declining.

Jacob Hornberger responded, also in Reason, conceding the point about slavery but holding that, in 1880, the US was still a much freer society than it is today. Will Wilkinson—whose posts alerted me to this controversy—responded by asking, very reasonably, what about women?

The best construction that can be put on Jacob Hornberger’s position is: in 1880, white heterosexual males had lots of liberties and we want everyone today to enjoy at least the level of liberty that white, heterosexual males enjoyed in 1880. Which is certainly a defensible (even admirable) position. The interesting question is why he did not put it like that in the first place.

Particularly given he was responding to David Boaz’s essay, in which Boaz wrote:

And in particular, if we want to attract people who are not straight white men to the libertarian cause, we'd better stop talking as if we think the straight white male perspective is the only one that matters. For the past 70 years or so conservatives have opposed the demands for equal respect and equal rights by Jews, blacks, women, and gay people. Libertarians have not opposed those appeals for freedom, but too often we (or our forebears) paid too little attention to them. And one of the ways we do that is by saying "Americans used to be free, but now we're not"—which is a historical argument that doesn't ring true to an awful lot of Jewish, black, female, and gay Americans.

The feminist answer as to why would be the simplest (and, in this case, correct): white, heterosexual male experience is taken to be the definitive human experience. So, someone like Jacob Hornberger does not stop to think about blacks, women and gays because it does not occur to him to do so, even though they collectively made up a clear majority of the American adult population in 1880. White, taken-to-be-heterosexual males were the stuff of history, so the history that is definitive is the history that happened to them.

Now, I do not want to endorse all the constructions of deconstructionist history of various types, but surely we should expect to be at a point where an intelligent, informed, thoughtful person simply does not write like this anymore.

Alas, apparently not.

Inalienable rights (3): alienation, commerce and property

This continues my discussion from my previous two posts of the issues raised by an essay by David Ellerman, Translatio versus Concessio: Retrieving the Debate about Contracts of Alienation with an Application to Today’s Employment Contract (pdf) which provides an excellent and revealing intellectual history on the concept of inalienable rights. He uses the concept of inalienable rights to critique the master-servant employment contract as illegitimate on the grounds that it alienates what cannot be legitimately alienated, one’s personal responsibility and decision making. Or, as he puts it here, labour is non-transferrable.



The commercial option
Easily the weakest part of Ellerman’s analysis is the way he moves directly to workplace democracy as the solution. For there is an alternative: one, moreover, that is increasingly in use in the economy—moving to fully commercial contracts.

It is not providing labour services which creates a “master-servant” employment contract: a lawyer, hairdresser or plumber does that. It is providing labour services as directed which makes it a “master-servant” employment contract. So, one solution to the problems of the “master-servant” employment contract is simply to make all contracts commercial contracts on the pattern of hiring a lawyer, hairdresser, plumber, etc, where the service is sufficiently pre-specified that there is no generalised form of direction. Then the issue of alienation does not arise at all, even in theory.

Of course, if you hire a lawyer, plumber, hairdresser, you do give directions. But it is in the sense of what specific services you want: you do not become their manager in any wider sense. So, under the commercial solution, all workers become contractors, rather than employees. Indeed, there is an increasing use of such arrangements in modern economies (my own business has precisely one employee: everyone else is a contractor). Partly due to the increasing legislative risks and costs that have been loaded onto the employment contract over time but also due to rising income, increased ability of households to cope with income fluctuations, cheaper information technology, increased role of services and human capital, and so on,

Could managers of properties also be contractors in that sense? Of course, a manager is not being directed on a day-to-day basis, though a subordinate manager may well be. But we already see managers on purely commercial contracts. But would a situation where the manager was the only employee—everyone else was a contractor—make the manager the sole authority in the firm?

But, leaving that aside, “they all become contractors” may work for corporations, it is unlikely to work for the key operations of the state. So, unless the master-servant employment contract can be rescued, it appears the apparatus of the state represents, on Ellerman’s analysis, a fundamentally illegitimate alienation of inalienable rights.
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Legal personality
Are “servants”—directed employees—legal “things”? Ellerman puts it as:

Thus it is that the employees take on a legally non-responsible role in the employment contract in spite of there being no language to that effect in the labor contract and in spite of their continuing de facto responsibility.

They are legally non-responsible as a result of accepting direction: they are not the decision-maker apart from a failure to refuse direction (and accept the consequences of that). But they can sue their employer, employees remain both a natural and a legal person. Employers can be prosecuted for wrongful behaviour towards their employees. Employees are not “nulls” in civil law. The employment contract is a contract, though of a very particular type.

Ellerman describes the employment contract as:

… the voluntary contract to rent or hire oneself out to an employer for a certain purpose and time period.

Well yes, one accepts direction. But the “hire oneself” is ambiguous. You hire your directed labour services but that hardly encompasses all one’s personhood: unlike slavery, for example.

It is all very well to talk of the employment contract as a “self-rental contract”, but it is, in fact, not a rental-of-self contract even though it is described that way in the economic literature: a literature which is interested in people as suppliers of economic services. It is not a rental contract in the way renting a car or house of boat is a rental contract, for one is not renting property. What is rented are labour services, and labour services for specific durations with specific scope. The person is the other party to the contract, the recipient of the “rent”, and never becomes property. It is ‘self’-rental in the sense that they are offering their own services for rent: they are not offering their selfdom for rent. (Sexual services are not part of the deal, for example.) They are accepting direction of their labour services during working hours, nothing beyond that. Which puts them in quite a different situation from a slave (or even a serf).

Ellerman asks:

Leaving aside the coercive nature of historical slavery, what about a truly voluntary self-sale contract to sell one’s labor by the lifetime instead of by the hour, week, or month?

Well, see the comments in my previous post about the key role of the ability to exit and the above discussion of what is actually being rented. Denial of the ability to exit does look like selling one’s personhood and being property absolutely is.

But is selling one’s labour under direction really profoundly different from selling specific goods or selling specific labour services (such as a hired lawyer)? As different as Ellerman suggests when he writes:

This is where the difference in the factual transferability of persons and things comes into the analysis. The suppliers of things can alienate and transfer their inputs to the employer so those factor suppliers have no de facto responsibility for the employer’s use of the factors.

Direction certainly has legal consequences:

As long as the legal system accepts the employees’ obedience as fulfilling the contract in return for the wages, then the employer (e.g., the employing corporation) bears all the liabilities for the inputs and thus has the legal claim on the produced outputs. That’s the trick.

As it must to be direction: it would be surely somewhat dubious to hold people legally liable for actions of legitimate scope they did under legitimate direction.

Ellerman is having none of it:

the employment contract should be recognized as being jurisprudentially invalid. Human decision making and responsibility are in fact not transferable so the contract for the sale of human actions (labor) is inherently invalid.

Direction is not valid outside the temporary direction of hiring a lawyer, plumber, hairdresser, etc. Or the delegated direction of democratic authority. But if one is not turned into property, if one is still genuinely the party to the contract, if it is labour service—and not one’s selfdom—that is being rented, then what is being alienated is so limited and partial that it is nothing like slavery, or even serfdom.

Which brings us back to no employment contract=no state. Without direction beyond the merely delegated there can be no large-scale non-commercial coordination of action. There can be no high stress/immediate coordination either: so no police, no armed forces. Which is why the state needs employees and the employment contract. Indeed, many government employees have strong property rights in their jobs to make them independent of a range of pressures. This notoriously has its downsides, but protecting people’s employment contracts seems an odd thing to do if it represents an attack on their personhood: particularly as this protection is seen as a benefit of such arrangements. (It can also, of course, weaken the ability to put them under legitimate direction.)

Judges and academics have tenure so, except in extreme circumstances, only they control their exit from their employment contract. This is seen, as it is with public servants, as enhancing their independence: clearly true.

Indeed, there has been a trend in employment law to give employees more protection against an employer terminating the relationship with “unfair dismissal” laws: a curious thing to do indeed, if the relationship is inherently demeaning of the employee. But something that makes sense if control over exit is central to the benefit to incumbent employees. (Raising the risks of hiring someone—by making it more expensive and difficult to fire them if things do not work out—is not in the interests of potential new employees. It is particularly not in the interests of labour market entrants who lack networks and track records: French labour law has a lot to do with the very high unemployment rates among young Muslim men in the banileus, for example.)

So it is not direction by another that is key here: some employment contracts are such as to make such direction even more voluntary than they are in ordinary employment contracts. It is who controls exit and in what circumstances. And what is actually being hired and from whom.

For it would be a very odd concept of personhood which said that you can never agree to direction by another. There is, indeed, a very big difference between agreeing to a subordination that you can then never choose to get out of, and turns you into property or being bound to property, and a subordination that you can leave freely, you are paid for at rate profoundly based on you being able to exit, and that does not make you property or bound to property. The former abrogates profoundly one’s nature as a moral agent: the latter is an always provisional limitation thereon. So is not much limitation at all.

It may also be a revealing lacunae that Ellerman does seem to have consider the cases of police services and armed forces at all. They contain—indeed, are profoundly based on—very strong forms of direction by superiors yet are voluntarily filled in the Anglosphere countries. It is hard to see how their employment contracts can be permitted under Ellerman’s analysis. (And conscription would appear to be completely barred: though it is an interesting question, whether conscription turns the conscripts into the property of the state. That they are still legal persons would seem to be the main argument against them being such.)

The key thing with the pactum subjectionis is that it is a permanent, irrevocable and general alienation that the subordinated person has no legal control over the exit from (leaving aside exiting from the jurisdiction: if that is legal). The degree of subordination also varies: a subject is not normally a slave. The master-servant employment contract is a partial, specific and eminently revocable subordination. This difference makes a great difference, as we saw in the discussion in my previous post about slavery, not least because it does not make one property.

Criminal liability
Regarding the issue of employees, like slaves, always being criminally liable, there are two issues. First, in the case of employees, it acknowledges that their acceptance of direction is always provisional. Secondly, allowing criminal action by slave or employee would obviate the point of the criminal law. That the law is going to put criminal and other limits on what private individuals can contract to do, and what people can be directed to do, is a given.

Consider a hired assassin who portrays himself as just “a trigger man”, an instrument of someone else’s will. The law holds him and the person who hired him legally responsible for any murder committed because it is not legally permissible to contract to do something illegal. That is true of any sort of contract. Now, a hired assassin is an independent contractor, not an employee. Normally, an independent contractor is held liable for their acts, not the person who hired them. But, in the case of the “trigger man”, both the act, and the creation of an arrangement to carry it out, are illegal. We are limited in our ability to contract by the criminal law (and, for that matter, civil law). The imposition of criminal liability on employees no more shows there is something fraudulent about employment contracts than the imposition of criminal liability on someone who hires an assassin shows there is something wrong with the normal law of liability with independent contractors.

Since we are limited in what we can legally contract to do, of course employees cannot use their employment contract to shield themselves from criminal liability. But, since it is a contract of direction, they can use it to shield themselves from liabilities for following legal directions. That limitation in liability is, in fact, part of the virtue of the employment contract for an employee.

That an ostensibly Christian slave society is thus forced to acknowledge the humanity of slaves, as in antebellum Alabama law making slaves liable for criminal acts, is, indeed, revealing. But the analogy does not bear anywhere near the weight Ellerman wishes to put on it since the employee’s subordination is so partial, specific and revocable and thus profoundly unlike the slave’s. The employee has a legal personality even when under direction that a slave does not, given an employee can sue their employer and legally exit the relationship.

It particularly does not work given that Roman law treated slaves as an animal put to work under their master’s direction and made the master responsible for any criminal act by the slave as set out by the Lex Aquilia of 286 BC: just as modern law does with domestic and other owned animals. What Ellerman points to as a “necessary” failure holding the slave to be covered by the criminal law is actually slavery law being “polluted” by Judaeo-Christian assumptions which blocked following through with complete consistency the implications of a slave being property.

Master-servant difficulties
Still, I am very grateful for Ellerman. By assembling together so usefully the arguments over alienability, he has clarified the problems with self-ownership I have previously grappled with.

He has also shed new, and revealing light, on patterns in modern employment law. A lot of statutory employment law seems to treat employers as implicit criminals. A particularly egregious example being the recent Kirk case (see this summary of the decision [pdf]): the High Court has some savage things to say about the prosecution and about the interpretation of the law by the NSW Industrial Court.

I used to take such trends in employment law as being mainly a “counting the votes” issue. That is, employees vastly outnumbered employers and a lot labour regulation (as is typical of so much regulation) is about protecting incumbents: in the case of much labour law, incumbent workers. With the political organisational advantage being—in specific applied resources, mobilisable political support and rhetorical resonance—generally on the side of organised labour.

Having read Ellerman, I now wonder if a general modern discomfort with the issue of control and subordination is not also a factor.

But that is what useful and penetrating historical research does. It throws new light on things and provokes you furiously to think.

Inalienable rights (2): alienation and the employment contract

This continues my discussion from my previous post of the issues raised by an essay by David Ellerman, Translatio versus Concessio: Retrieving the Debate about Contracts of Alienation with an Application to Today’s Employment Contract (pdf) which provides an excellent and revealing intellectual history on the concept of inalienable rights. He uses the concept of inalienable rights to critique the master-servant employment contract as illegitimate on the grounds that it alienates what cannot be legitimately alienated, one’s personal responsibility and decision making. Or, as he puts it here, labour is non-transferrable.



The current model of a firm is a bundle of contracts using specific assets requiring a financial guarantee (who will cover any losses?) that then hires workers has the scarcer factor (capital: indeed, entrepreneurial capital, which is even scarcer) hiring the more plentiful factor (labour). It also typically straightforwardly rewards (successful) ideas-and-coordination and allocates risk accordingly. Indeed, property rights allocations are best understood as matchings of risk with control. Where control is allocated according risk—for example in warranties and insurance contracts—the results can be highly productive. Where it is not—for example in government production and some of the more recent toxic financial products—the results are less so. There is an ongoing issue with corporate governance, with its principal-agent issues, precisely because matching risk and control is difficult.

Getting a bunch of labour-providers together who will then have collective control and bid for capital seems a much less likely exercise than the conventional firm due to its very poor incentives: it is not hard to see why such firms do not currently exist outside the very partial exception of cooperatives. (Given that many cooperatives are actually of property-holders.) As a solution to the problem of corporate governance, it seems likely to separate risk and control further by diluting individual responsibility and shifting control further away from the prime bearers of risk. Especially as a firm does not represent symmetrical risk between capital and labour, since the failure of a firm can see its capital entirely wiped out.

What, after all, most economically differentiates societies is not labour—all human societies have that—but how capital is created, maintained and utilised. The better this is done, the more capital-plentiful the society is and the more prosperous it is (which is then connected to such matters as life expectancy, health, freedom, happiness).

We do, of course, have partnerships but they are a revealing exception, for the point of partnerships is that the partners bring their own capital—their knowledge and skills. The capital, the “produced means of production”, is in their heads. So, what looks like a labour-dominated firm is actually a particular form of capital-dominated firm where the capital is embedded in the labour.

Moreover, the prime risk associated with the firm’s capital in a partnership is loss of reputation, so partnership puts control in the hands of those bearing the greatest risk.

Contracts and property
In current liberal capitalist economies, the prime mechanisms for to applying labour to (separable) capital are the commercial contract and the employment contract. The latter puts the supplier of labour under the direction of the owner of the capital (or their agents) while they are supplying their labour. Such contracts are also ways of allocating control to risk-bearers.

Commercial contracts, like employment contracts, can produce the full range of products. The boundary of the firm is not set by the nature of the product but by the boundary of the equity capital guarantee (if one accepts, as I do, Barzel’s analysis) or relative transaction costs of internal or external production (according to Coase’s seminal article).

Ellerman is implicitly offering a new form of contract than the commercial or the employment contract. We might call it the labourcratic contract, because it puts the control, the authority (kratos in Greek), in the hands of the suppliers of labour. The controllers of the firm become delegates of the suppliers of labour.
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This surely increases rather than solves the problem of corporate governance, since it separates control from risk rather more emphatically. Those providing the income guarantee to the firm no longer have any control, even through agents, over the operation of the firm. This makes it a significantly worse risk for the suppliers of capital. Which makes it unlikely to be a competitive goer in the market place. To have the suppliers of labour take on the income guarantee risk (leaving aside whether they would have the capacity to do so) would certainly not increase the appeal of the labourcratic contract to workers.

The implied answer in Ellerman’s text to the question of why worker-controlled firms that do not alienate worker decision-making do not currently exist is because of a wrong theory of property, which Ellerman holds would have to be abandoned:

A similar reversal occurs concerning property rights. A basic principle in jurisprudence is the responsibility principle that, whenever possible, legal responsibility should be assigned or imputed according to the de facto responsible party. For instance, in a trial the idea is to make an official decision on the factual question of whether or not the defendant is the de facto responsible party. If so, then legal responsibility is imputed accordingly. The more positive application of the responsibility principle is the old idea often associated with John Locke that people should appropriate the fruits of their labor. This labor theory of property is both positive and negative since new products are only produced by using up other things as inputs. Hence the question of assigning legal responsibility is two-sided, to assign the ownership of the product and the liability for the used-up inputs to the people who, by their de facto responsible actions, produced the outputs by using up the inputs. Hence a private property system based on the basic principle of justice (imputing to people what they are responsible for) would have the legal members of each firm be exactly the people who work in the firm … . Thus a system based on justice in private property would entail workplace democracy.

Hence, Ellerman concludes:

Far from the present employment system being based on democracy and private property, it is precisely the principles of democracy and justice in property that call for the abolition of the employment contract in favor of a private property market economy of democratic firms.

This is a very static view of the economy. Not only is there the question raised above, of how such firms would be created, but the minute property is transferred out of the hands of the original creator, one has a property rights structure that looks like, well, the one we have now. Conversely, to not allow property to be transferred would enormously reduce its value. (Ellerman's theory of property is outlined in far more detail here [pdf]: I have not read the book and so am only reacting to the above-cited essay.)

As not being able to sell one’s labour massively reduces the value of one’s labour. The key feature of slavery (and of serfdom) is that the slave (or serf) cannot legally exit and so is denied the benefit of his or her labour beyond that of subsistence: the gap between output and subsistence is what makes slavery (and serfdom) profitable even after the productivity losses and other costs of imposing such control. So slavery (and serfdom) were only profitable in circumstances where free wages were higher than such costs and losses plus subsistence (as was the case in the land-rich/labour short Americas after the devastation of the introduction of the entire Eurasian disease pool). This made “work gang” production (such as sugar and cotton) particularly susceptible to slavery because of the simplified control required and limited skill requirements.

Given their legal exit possibilities, the employment contract can only work if the workers see the control they are under as legitimate. The ability to legally exit is not incidental: it is central. A “voting with one’s feet” that is always available to the free worker and never (legitimately) to the slave or serf. (Though the Roman labour market may have been significantly affected by [pdf] the extensive use of manumission of slaves.) But free workers’ ability to sell their labour greatly increases their income possibilities. Given how fundamental the combination of labour to capital is in production, using someone else’s property is central to this for firms of any size. As an always-reversible alienation that greatly raises one’s income possibilities, the employment contract seems an odd sort of evil.

One of the features of the employment contract is that it is often of indefinite duration: that is, it persists until terminated by either party. And, of course, breaching a contract is usually legally actionable. That does make exit any less of a genuine and powerful factor in free employment.

As it is in many circumstances. Competitive jurisdictions—the ability of capital and (particularly skilled) labour, to move between jurisdictions—is clearly vital to explain the development of less exploitive rulership over time. It deeply affects the operation of companies. Years ago, there was an excellent article in Quadrant by someone who had managed a business in Hong Kong. At first he was deeply alarmed, because every day when he came in, his workers would be reading the newspaper employment columns and, if they left, the business would collapse. After a while, he realised that they were simply scanning to see that he was paying at least the going rate. He was only in trouble if he stopped doing so—in which case, they would exercise their option to exit.

The problem with Hobbesian alienation, after all, is that, whatever the personal protection benefits, it is never reversible and the same benefits can be had from a system of delegated rule. Indeed, the benefits are likely to be, in fact, greater under such. Offering workers a system of workplace governance that gave them a vote but reduced their income is not quite such a better deal.

Moreover, property is no more “congealed labour” than value is “congealed labour”. The key feature of value is someone wants it. The key feature of property is that someone controls it and there is some point to the control, the control has to matter—the thing controlled has to have sufficient scarcity and be sufficiently wanted by someone for such control to matter. We can control a twig, but who cares? But a hunter who kills a deer establishes property in that deer (despite the fact that he did not create it) as does any potter making a pot establish ownership in the pot.

As previously noted, societies are distinguished far more by the level, extent, creation, maintenance and utilisation of capital (the produced means of production) than of labour (which all societies have). Indeed, capital distinguishes labour as well, since skill and knowledge are also forms of capital, forms of the produced means of production.

Labour is aimed at creating things people want and creating things people can control (which can be used for purposes people want). But so is anything used to create property, or to create something of value. A labourer may be worthy of his or her hire, but labour is not the only contribution and the other contributors are also worthy of their hire. Moreover, one does not measure property by the labour used to create it, no more than one does for the value of something, for that is not its nature.

One should always be deeply sceptical of theories of property which are not compatible with the common law tradition, since it has such a long history of dealing with property and represents distilled experience in doing so. A tradition which slavery was, in Somerset’s case, famously found to not be part of. In the words of the judgement:

The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law.

Nor, for that matter, was torture.

The political option
There are other problems with the political analogy. The difference between the static and the dynamic is a difficulty with the state-government/corporate governance analogy Ellerman is arguing for in his solution of workplace democracy. States are much more stable than firms and government covers a far wide range of activities (and level of coercion) than does corporate governance. The ability to exit is a much greater feature of firms than states. As is the ability to collapse: something that is a somewhat bigger threat to the holders of capital (who can see their capital entirely wiped out) than the providers of labour.

If the workers are the responsible controllers, that also raises interesting problems about letting new people in. For extra workers dilute the control of existing workers. This raises all sorts of difficulties and likelihoods: a tendency to resist hiring people, a tendency to hire according to affinity and so on—remembering that the people making the decisions would no longer have their own capital at risk. Shareholders expanding the capital of the firm are “paid off” for that in a way worker-voters would not be likely to be.

This is not a mere theoretical possibility. One of the very large differences between the Roman Republic and the classical Greek polities, is that the latter were very reluctant to spread citizenship, since it diluted the value of the votes of existing citizens. The power of the Senate in the Roman Republic created different incentives (since more citizens meant a bigger army under the control of the Senate without diluting the votes of individual Senators), so Rome was much more willing to expand citizenship (even, indeed, to former slaves: not true in Greek polities).

A strength of democracy is that it aggregates concerns and perspectives and forces attention to the governed. It is not merely that it is consensual, it is the consequences of being such—if democracy was not functional, it would not survive. But it also has fairly notorious weaknesses as a decision-making mechanism. There are already problems in corporate governance in connecting decision and outcome. It is far from obvious that the worker-sovereign corporation would work more efficiently. Indeed, if there were efficiencies to be achieved, one would have expected such firms to evolve, given the widespread interest in achieving increased income.

One of the great barriers to tyranny, and the development of better societies, has been competitive jurisdictions. But firms compete for resources (including workers) far more thoroughly than states compete for citizens and capital. It is far from entirely coincidental that commerce has often treated disadvantaged groups far better than politics. Labour, by contrast, has often been a hotbed of prejudices, as a way of seeking to cartelise against competition.

One also notes that the prime political mechanism in workplaces—unions—are in decline, particularly in the private sector. There may be a range of reasons for this, which basically come to them not aligning with the interests of workers as much as they used to due to changes in economic circumstances.

Abolishing the state
But there is a deeper difficulty that seems to have escaped Ellerman. Perhaps the largest gap between broadly “libertarian”/classical liberal analysis and left/progressivist analysis is that libertarians/classical liberals typically analyse public/government/political action on the same analytical continuum as private/corporate/market action. So the same issues of incentives, information flows, agency issues, conflicts of interest and so forth operate in both realms, but the highly aggregated and coercive nature of public/government/political action tends to make such issues particularly problematic in that realm.

Conversely, a lot of left/progressivist analysis seems to treat them as two completely different realms analytically, so that public/government/political action becomes inherently less problematic because it is taken not to have the same problems: especially not self-interest. It might appear that Ellerman is insisting that firms and the state be treated in exactly the same way—hence worker-democracy—but that is, quite profoundly, what he is not doing.

For the question is simple: if you do not have employment contracts, how can you have the state? If there are not paid people bound to follow the direction of the elected representatives, then the delegated sovereignty of the citizen-voters that Ellerman makes so much of is void. The analogy with workers in a corporation is not with voters, but with public servants and government employees of all varieties.

Ellerman’s analysis may dissolve the capital-owned corporation, but it dissolves the state at least as thoroughly. We can use his denial of the public/private distinction in reverse. If it is an illegitimate alienation of one’s right to self-governance to have a master-servant employment contract with a private employer, it is not less so with a public employer since the issue is the alienation of personal governance, not who you are alienating it to. An employment contract (whether public or private) does not magically change its nature because the state is democratic. (Indeed, some C19th jurisdictions banned some government employees from voting, on the grounds that that would give them too much power.) If labour is non-transferrable, then it is non-transferrable regardless of whether the employer is private or public.

That public employment has increasingly become a device for enriching a privileged caste at the expense of the general public (and unionism, particularly in the US, is increasingly about organising for more of that) hardly suggests that giving public employees even more say over their work is a good option.

The distinctive thing about a government employee is not that are voters, nor under a democratic polity: these features may or may not pertain. The distinctive feature is they are paid to follow direction to implement public policy. To turn that into a labourcratic contract would clearly grossly undermine the ability of the state apparatus to carry out public policy whether or not that policy came from the elected representatives of the voters.

If one asks why the employment contracts persists, when the other forms of alienation contracts have fallen by wayside or not developed, the simplest answer may be that it is essential for the state that it continue. But that, as we have seen, is not the only reason.

So, unless anarcho-syndicalism is the only just system, there must be something wrong with Ellerman’s analysis, beyond the practical and other considerations adduced above.

ADDENDA This post has been amended to eliminate some repetition and clarify some points.

[This discussion is concluded in my next post.]

Inalienable rights (1): a history and critique

An essay by David Ellerman, Translatio versus Concessio: Retrieving the Debate about Contracts of Alienation with an Application to Today’s Employment Contract (pdf), provides an excellent and revealing intellectual history on the concept of inalienable rights. He uses it to critique the master-and-servant employment contract and argue for corporate democracy, based on a labour theory of property. These conclusions are far more drastic in their implications he appears to realise, but the discussion of the history of the concept of inalienable rights is most instructive in its own right.

Ellerman starts by pointing out that the coercion-versus-consent dichotomy of modern liberal theory ignores a strain of contractarian theory that held that political and economic subordination could be justified on a contractarian basis. In response, a theory of inalienable rights, rights that could not be traded away by any contract, implicit or explicit, was developed.

As part of drawing implications for modern corporations and the employment contracts, Ellerman notes that rulers were regarded as owners of their lands, but that ownership has become separated from rulership. (At least in most states: under Leninism ownership and rulership were re-conjoined. As they are whenever the state engages in direct economic activity.) Without wanting to deny the exploitive side of medieval rulership, it was also a way of providing public goods in a period of limited trade and very limited administrative capacity.

Ellerman notes that:

The only people who are under the authority of the owners and their agents are the ones who work their property, the employees of the corporation.

So ownership does currently entail governance. Which we take for granted:

But the “very idea” that the employees qua workers (i.e., as those who are governed or managed) would have any standing in that governance seems an outlandish perversion of the very idea of “ownership.”

As outlandish as serfs voting on matters pertaining to medieval lordship would have appeared back then.

Ellerman asks:

If political governance was previously thought to be based on land ownership and now isn’t, then what about the connection between corporate ownership and workplace governance? What is the legal basis for the rights of government or management not over the land, buildings, or machinery of the corporation but over all the people who work in a corporation?

and notes that modern responses to that question are somewhat confused.

Ellerman wants to develop an alternative view:

… that the conflict is not between democracy and private property but between democracy and the contract to alienate the right of self-governance in the workplace, the employment contract.

He defines an employment contract as being:

… contracts for a person of full capacity to voluntarily take on or accept the legal role of a person of diminished capacity or of a non-person.

To sustain this antipathy, Ellerman seeks to retrieve the history of inalienable rights, in particular:

Today, we see slavery simply as a coercive involuntary relationship. That may largely suffice as a matter of historical fact but that is not what the intellectual debate was about. Since Antiquity, there were rather sophisticated defenses of slavery as being based on contract, an implicit or explicit self-enslavement contract. The history of anti-slavery thought was not just fussing about the reality of any alleged consent; it is the history of theorizing about how a voluntary self-sale contract would be inherently invalid.

For this shifted the debate from arguing over the facts of the level of consent involved to a straight coercion-versus-consent issue since certain basic liberties were not alienable: they were instead inalienable rights.

As Ellerman notes, after taking us through the various streams of contractarian thought justifying subjection:

If modern contractarian liberals had recognized the past contractarian arguments for slavery (and autocracy), then they might be in the uncomfortable position of disagreeing with those proslavery thinkers only in matters of fact. They might be reduced to arguing on empirical grounds that the implied contract for society has “genuine” tacit consent, but that the implied slavery contract did not. It is no surprise that modern liberalism has just avoided this quandary by promulgating the consent-or-coercion version of the slavery debates.

Since the problem the doctrine of inalienable rights was developed to deal with has “gone away”, modern liberal theory puts the dichotomy as being between consent and coercion, losing the notion of inalienable rights, with the difficulty that that would appear to allow voluntary sale of oneself—i.e. slavery. An implication that Robert Nozick, for example, was prepared to embrace and which, as Ellerman points out, is implicit in neoclassical economic theory since the bar on capitalizing labour is a barrier to full allocative efficiency.

But consent-versus-coercion was not the dividing line for notions of popular sovereignty and the illegitimacy of slavery. Instead:

… this question of translatio or concessio—alienation or delegation of the right of government in the contract—that is the key question, not consent versus coercion. Consent is on both sides of that alienation (translatio) versus delegation (concessio) question. The alienation version of the contract became a sophisticated tacit contract defense of non-democratic government wherever the latter existed as a settled condition. And the delegation version of the contract became the foundation for democratic theory.

If one could not alienate personal sovereignty, then all legitimate political power was only delegated.

The alienation approach of sovereignty being based on a pactum subjectionis has some major thinkers behind it: such as Thomas Aquinas, Hugo Grotius and Thomas Hobbes (a famous example of an advocate) while Robert Nozick updated it.

An example Ellerman does not use, but which has continuing power, is the Islamic theory of the dhimmi, which is very much a pactum subjectionis. The dhimmi gets the protection of the designated subordinate status but forfeits that protection if they fail to keep their pact of subordination.

Delegation theory
While the alienation of sovereignty theory dated back to classical Antiquity, the delegation theory seems to arise in the later medieval period with thinkers such as Marsilius of Padua and Bartolus of Saxoferrato. The line of argument developed was essentially that an alienation contract turned a person into a thing, and this was inherently invalid:

Applying this argument requires prior analysis to tell when a contract puts a person in the legal role of a non-person. Having the role of a non-person is not necessarily explicit in the contract and is has nothing to do with the payment in the contract, the incompleteness of the contract, or the like. Persons and things can be distinguished on the basis of decision making and responsibility.

To put it another way, it was illegitimate to alienate one’s personhood.
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Contracts that do such are “institutionalised frauds” that:

… always has one revealing moment when even the most slavishly conforming observers can see the legal fiction behind the system. That is when the legalized thing would commit a crime. Then the “thing” would be suddenly metamorphosed—in the eyes of the law—back into being a person to be held legally responsible for the crime.

So, for example, in antebellum Alabama, a court asserted that slaves were persons for criminal law but things for civil law:

Since there was no legal theory that slaves physically became things in their “civil acts”, the fiction involved in treating slaves as “things” was clear. And this is a question of the facts about human nature, facts that are unchanged by consent or contract.

Which Ellerman holds applies directly to the “self-rental” contract, the modern employment contract:

… I cannot in fact “transfer” my own action for the long or short term. The factual inalienability of responsible human action and decision making is independent of the duration of the contract. The factual inalienability is also independent of the compensation paid in the contract …

And so independent of any theory of exploitation.

The Stoics held, contra Aristotle, that no one was a slave by their nature—slavery was an external condition to the internal freedom of the soul. This notion of inner freedom re-emerged during the Reformation in the notion of liberty of conscience. Francis Hutcheson, Adam Smith’s predecessor in the chair of moral philosophy at Glasgow, developed the inalienabililty theory most explicitly, writing that:

Our rights are either alienable, or unalienable. The former are known by these two characters jointly, that the translation of them to others can be made effectually, and that some interest of society, or individuals consistently with it, may frequently require such translations. Thus our right to our goods and labours is naturally alienable. But where translation cannot be made with, or where no good in human life requires it, the right is unalienable, and cannot be justly claimed by any other but the person originally possessing it.

Hutcheson held the right of private judgment unalienable, for example, since it could not really be changed at the whim of another.

Hutcheson’s theory of unalienable rights was taken by Jefferson and famously placed in the US Declaration of Independence. But:

… the theory behind the notion of inalienable rights was lost in the transition from the Scottish Enlightenment to the slave-holding society of antebellum America.

The phraseology continues when the underlying theory does not.

Hegel also held to a theory of inalienable rights, holding that alienation could not apply to one’s own personality. Hence:

… those goods, or rather substantive characteristics, which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible.

Ellerman has an amusing go at Marx for missing this analysis of alienation in the work of his teacher and for going for a labour theory of value rather than a labour theory of property. Though a labour theory of property makes no more sense than a labour theory of value, as it suffers from the same problems—it elevates source-of over reason-for, on the way through getting the nature of the thing quite mistaken. (Ellerman develops his theory of property more here [pdf].)

Once, however, the question of what can and cannot be legitimately alienated is clearly put, the employment contract does look rather problematic:

Take, for example, the approach to the employment contract as the workplace pactum subjectionis. The key to the intellectual history was to understand the distinction between two opposite types of social contract—a distinction that started to emerge in the late medieval work of Marsilius of Padua and Bartolus of Saxoferrato. On the one side was the social contract wherein a people would alienate and transfer their rights of self-determination to a sovereign. The sovereign was not a delegate, representative, or trustee for the people. The sovereign ruled in the sovereign’s own name; the people were subjects. On the other side was the idea of a social contract as a democratic constitution erected to secure the inalienable rights rather than to alienate them. Those who wield political authority over the citizens do so as their delegates, representatives, or trustees; they govern in the name of the people.

Ellerman’s argument is that workers in a corporation are in the same position as the sovereign people in a polity. He approvingly quotes a 1966 passage by Abram Chayes:

The analogy between state and corporation has been congenial to American lawmakers, legislative and judicial. The shareholders were the electorate, the directors the legislature, enacting general policies and committing them to the officers for execution. . . .
Shareholder democracy, so-called, is misconceived because the shareholders are not the governed of the corporation whose consent must be sought.

The consent of holders of capital definitely has to be sought, but the key word here is ‘governed’. Employees are governed in a way that shareholders are not.

Ellerman asks:

Perhaps the public-private distinction somehow makes a difference? Does anyone think that the persons who have a de facto inalienable capacity for decision making in the public sphere suddenly morph into talking instruments in the private sphere?
Since the answers are so blindingly obvious, the usual response is apparently to not think about it. “Responsible” thinkers just don’t go there.

Ellerman then analyses various patterns of people “just not going there” in their thinking. That employees are effectively non-persons in civil law but suddenly fully responsible in criminal matters, he argues, shows that the employment contract is an unsustainable legal fiction.

Ellerman then looks at the structure of rights in an employment firm, noting that de facto responsibility does not line up with legal responsibility. He considers various other forms (historical and imagined) of alienation contracts before concluding:

All these contracts have the same scheme. An adult person with full capacity voluntarily agrees for whatever reason and in return for whatever consideration to accept a lesser legal role. But they do not in fact alienate their capacity as a person in order to fulfill that diminished legal role. Instead the law accepts their (non-criminous) obedience to the master as “fulfilling” the contract. Then the rights and obligations follow the legal role (e.g., the slave of a master, the subject of a sovereign, the femme covert of her baron, the employee of the employer, and so forth)—as if the person were not in fact a person of full capacity. The whole scheme amounts to a fiction and fraud on an institutional scale that nonetheless parades upon the historical stage as a contractual institution based on consent.

In other words, the employment contract alienates what cannot be legitimately alienated. Hence:

Contrary to the blinkered vision of liberal apologetics, we have seen that the subtle issues lie all within the domain of consent (little subtlety is required to be against coercion). The “consent of the governed” to a Hobbesian pactum subjectionis is not democracy, and the employment contract is the mini–Hobbesian contract for the workplace. Thus once the question is posed as consent to alienation versus consent to delegation, then the daunted affinity of “liberal-capitalism” with democracy is demolished. The historical bedfellows of the employment contract are the pactum subjectionis and the self-sale contract. A true affinity to democracy would entail the abolition of the employment contract in favor of all firms being organized as workplace democracies.

If so, a question that immediately arises is how such firms would begin in the first place. (And why are they not created now?)

[This discussion is concludedcontinued in my next two posts.]

Regimes have their own logic 3

This extends a comment I made here.


A defector from the Iranian regime has claimed that Westerners persistently fail to understand the regime because they do not get that it means what it says.

One of the things that helped Hitler a great deal is lots of people did not believe he really meant all that "nonsense" about lebensraum and argued he was just a "normal" German leader manoeuvring in normal ways for diplomatic advantage. The people who got it right were the ones who worked out that he did mean what he said and that his actions matched his words.

The actions of the Iranian regime match its words. As with Hitler, there is lots of stuff that looks like "normal" diplomatic manoeuvring and then there are the extra bits.

When you look at the regime’s rhetoric, it is not staking negotiable claims, it is not connecting to general political sentiments, it is communicating justifying all-trumping purpose to supporters. That is the sort of rhetoric to be worried about.

About Marx, Marxism and Leninism

This extends comments I made here and here.


In response to a dissection of a speech by Karl Rove defending “enhanced torture techniques”, the following comment was made:

… am I a simplistic and lazy Marxist if I say the relentless slavery to the demands of capital in these discourses is a necessary and screamingly sufficient reason for dismissal?


To which I responded: Yes.



Consider the levelling simplicity of the quoted comment. Whose capital? How defined? Is there only one set of such demands? Is there only one way such putative "demands" can be satisfied? What are the mechanisms of transmission that lead to the observed variety of views?

There are so many problems with Marxism (in any form) it is hard to know where to start. But the complete denial of the reality of politics involved—politics as a way of dealing with diverse interests and perceptions—is precisely why Marxism has such an appalling record when put into any sort of practice. For such a ludicrously mechanical view of politics must dismiss all the weary learning about how to manage the reality of politics it so completely fails to acknowledge.

It is not serious analysis to categorise politics (particularly as specific a policy issue as “enhanced interrogation”) as responding to the demands of “capital”, it is category-mysticism passing itself off as analysis. In the context of debate over “enhanced interrogation techniques”, one merely has to look at the history of torture in the common law to see what utter nonsense such simplistic “analysis” is.

But that levelling simplicity is, of course, central to the appeal. It is so simple anyone can do it: and with such a minimal burden of knowledge and research effort too. Determine the “class”, apply the “analysis” and, hey presto!, the “conclusion” follows. One that provides both a cosy sense of cognitive superiority (“I know how things really work”) and moral superiority (“I am not motivated by such vile thinking”).

Such analysis has the particular appeal to an academe that can parade how virtuously "not commercial" it is: all the more virtuous the more really, really, evil commerce (maleficent capital and capitalism) is.


As a system of analysis, Marxism explains almost nothing well. That people often act out of self-interest is hardly news. Reducing such self-interest to "class" or "profit" is puerile, as any perusal of the history of Leninism itself amply demonstrates.



An analysis of American politics that holds that corporate interests automatically trump union and public sector interests is equally puerile, especially given that public employment has increasingly become a device for enriching a privileged caste at the expense of the general public.

The class analysis of Marxism does not work, as class does not order human behaviour in the way it claims. In particular, it confuses common (as in similar) patterns of action with common (as in collective) action, so fails to grip reality. Firms could not exist if capital was not in competition with capital and labour was not in competition with labour. (Indeed, the power of unions rests on excluding labour competition, aka ‘scabs’.)
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What Marxism does is provide a "sophisticated" form of theomachy (the belief that social events are determined by powerful hidden forces—unless one is one blessed with appropriate gnosis) coupled with a belief in the absolute value of one's ultimate goal and a vindication to wage a war against people as-they-are in the name of people as-they-are-deemed-to-ought-to-be. 
Doing so while also feeding the academy's widespread anti-commercial prejudices. There is nothing "accidental" about the history of Marxism, or why it is one of those "exploded systems" that, as Adam Smith denounced more than two centuries ago, live on in academe after vanishing elsewhere.

The labour theory of value is nonsense, and murderous and tyrannical nonsense at that, since the notion of "one true class" has exactly the same oppressive and murderous implications as "one true sexuality", "one true race", "one true religion" etc. What Marx’s labour theory of value says, after all, is that all those participants in the economic process who are not providing labour are exploitative parasites who can be dispensed with: indeed, ought to be dispensed with. The oppressive and murderous implications of that are perfectly obvious and have been played out in country after country. For such people are not only dispensable, they are vile exploiters and barriers to the creation of the “final society”.

This problem is inherent in Marxism’s Hegelian roots. Hegel held that the contradictions of metaphysics are a correct picture of a reality with contradiction at its heart. Hegel taught that reality reflects ideas that are in endless contention as thesis leads to antithesis leading to synthesis leading to a new thesis and so on. These ideas are manifested in civilisations which are thus in endless, and profound, conflict. Such that, in Hegel’s words, the state “… is the march of God through history”: a march that is, as Gilson notes, is “strewn with ruins” for, as Hegel tells us:

This military class is the class of universality.

The class through which history is violently resolved with maximum metaphysical pretension. A universe of contradictory strife hovering on a climactic resolution: one can see that Marx is indeed a disciple of Hegel—a philosophy of profound violence with no higher truth to restrain it than its commitment to the final synthesis. This is revolutionary as ubermensch who is beyond morality and history, because they transcend both, with the workers cast as the “universal class” but even more universal, for they will be the only class left.

Of course, if the State is such a metaphysically heroic entity, it can be so heroic in all sorts of causes. Including manifesting the will of the volk in history, seeking lebensraum: resources clear of ethnic obstructions just as Marxism sought resources cleared of class obstructions.

Marx and Engels had a view of masses of their fellow humans as “dispensable” that goes right back to the beginnings of their career:

The next world war will result in the disappearance from the face of the earth not only of reactionary classes and dynasties, but also of entire reactionary peoples. And that, too, is a step forward.

A view, one notes, that is a ethnically-exterminating as anything in the Nazi vision.

This all based on a theory of exploitation that relies on playing (inconsistent) games with the concept of labour. Since the underlying economic analysis is nonsense, attempting to put it into practice ends up with seriously dysfunctional economies where economic roles that are not admitted to be legitimate are performed (badly) by complex bureaucracies that evolve into semi-hereditary engines of privilege. Not as some “perversion” of the ideology but following quite directly from its patterns and structure, from its logic.

It is truly amazing to have people teach Marxism, a philosophy all about the logic of history, and yet claim that the history of Marxism does not reveal its logic.

Pointing to social democracy (the merging of socialism with liberalism) as an alternative Marxian path is otiose, since there is a clear history to social democracy: the socialist element declines while the liberal element increases over time due to the brute reality that socialism does not work. Subject to the selection processes of competitive politics (both in internal elections and with competing jurisdictions), the dysfunctional (socialist) elements of social democracy get increasingly abandoned over time as they are found not to work.

Academic theorists, isolated from the consequences of their ideas except as status markers, may either ignore this, explain it away or sneer at it but the lessons are clear for those with eyes to see.

But one of the big problems with Marxism is precisely the way it encourages a crippled epistemology (pdf). Consider this quote from a philosopher who teaches Marx at university:

But if there's one thing that we ought to have learned from Marx, it is that bourgeois ideology tends to be totalizing and, hence, none of us are entirely free of its distorting effects. And so, even as I attempt to chip away at and unscramble some of the bourgeois misconceptions above, I must also remain attentive to my own bourgeois blind spots.


I hate this sort of thinking. It is essentially an open invitation to develop contempt for one's "unenlightened" fellow citizens. That societies and cultures have operating presumptions that are deeply embedded is obviously true. But that is a very different notion than this "suffocating blanket" concept of systematic delusion and malign power over perception and understanding.



Such an analysis of social cognition also naturally generates a crippled epistemology by discouraging (or even blocking) openness to inconvenient evidence. Rather than thinking people might have good reasons—grounded in how things are—for thinking as they do, it is an open invitation to dismiss any inconvenient views as “bourgeois ideology”. That is, as a form of delusion: a diagnosis that cuts one off from a huge amount of information about social reality.

A problem in teaching Marxism to student is

... their identification of Marxism with Soviet and Chinese practice

But Soviet and Chinese practice have something to do with Marxism. Indeed, they, in fact, express the underlying logic of operationalising Marxism pretty well, as discussed above. The "Lenin was a bad Marxist" and "it just hasn't been tried properly" are defensive justifications rather than hard-headed analysis.



Radical change in the society-transformed sense may not be impossible: but the record is pretty clear that it is a bloody (literally) bad idea: not least because it presumes a knowledge of the working of society that is both profoundly arrogant and profoundly wrong.

It is also inherently tyrannical. If one “knows” the end of society, the end of history, how things should be “objectively”, then one can dispense with consulting the general public on the way through. Along with Marxism’s dismissal of ordinary human cognition, such an outlook naturally leads to the dismissal of politics (in the Aristotelian sense) noted above, and with it all the human learning about such politics and the dangers of politics: as it dismisses human learning about so much.

Marxism is a form of “objective” teleology, and all such is inherently dismissive of human agency (this is true of Thomism as well as Marxism): with consequences that have been repeatedly played out in the oppressions that flow from the notion that “error has no rights” because human action and cognition is held to be legitimate only if it serves the designated morally trumping ends.

An example of Marxism’s dismissal of inconvenient human cognition is provided vividly in Marx’s attitude to Jewish identity:

Once society has succeeded in abolishing the empirical essence of Judaism – huckstering and its preconditions – the Jew will have become impossible, because his consciousness no longer has an object, because the subjective basis of Judaism, practical need, has been humanized, and because the conflict between man’s individual-sensuous existence and his species-existence has been abolished.
The social emancipation of the Jew is the emancipation of society from Judaism.

People do not get to define themselves: Marxism gets to define them. The attempt to insulate Marx from the negative features of Marxist history simply does not work.

Marxism is based on a profoundly mistaken analysis of economic activity. One that allows dramatic dismissal of the remarkable achievements of market societies as inherently “exploitive” in the name of a self-satisfied “vision splendid” by its adherents. Marxism has an underlying logic that the attempts to operationalise it in fact express revealingly. The attempts to “quarantine off” that profoundly revealing experience is (as we can see in this amusing lecture on the legacy of Adam Smith versus the legacy of Karl Marx here) a contemptible reaction to massive human suffering: a mirror of Marxism’s dismissal of inconvenient human achievement and inconvenient human cognition.

Dismissals that lead directly to its profoundly oppressive record, as all criticism or disagreement can be dismissed either as delusion or as blocking the great transformative goal or both. A goal that also leads to Marxism-in-practice’s profoundly oppressive record as it is so morally trumping it has been taken, again and again, to justify any action deemed to further its achievement. Including re-instituting slavery and serdom.

Even the leadership worship one sees in Leninist states flows naturally from this teleological cognitive arrogance, for if the role of the revolutionary state is to be the agent of History, if social transformation comes from having the correct policies correctly implemented, then of course the leadership—as the central instrument of this process of transformation—must epitomise and embody this profound cognitive and moral understanding. The leadership-worship of the Kim Family Regime is just an extreme manifestation of an inherent tendency. As is, of course, the treating of Marx himself as a secular prophet.

What Marxism has going for it—apart from its offer of profound gnosis—is the epitome of the politics of grand, transformative “good intentions”. Since academics are not actually responsible for making anything work in the world (even the consequences of their teaching are born by their students, not them), still less do they have to live with the consequences of their idea, they are naturally strongly inclined to the politics of grand “good intentions” as—being insulated from responsibility of making things in the world work—their intentions can be “purer” and “grander” than anyone else’s. Hence the wish to insulate the grand intentions of Marxism from the horrors of its implementation: such self-indulgent self-exculpation is not, however, worthy of a moment’s respect.

Marxism as a system of thought is not a distillation of history. It is, in a profound and pervasive sense, a flight from history as-it-is into a delusion about history as-it-is-deemed-to-be.

Marxism is a philosophy to be studied for its effect on history and as a warning. It is not a philosophy to be respected, let alone followed.

About Texas, migrants and positional goods

This slightly expands a comment I made here.

Texas now has more Fortune 500 corporate headquarters than any other US State. No doubt helped by the fact that their receptionists, etc find living in Texas much more affordable than living in California or New York: look at the relevant housing prices (pdf). While Texas job growth is much better than the US national trend.

Texas is a case where population growth spurs the economy (and the economy spurs population growth) but housing prices do not shoot up because housing supply can react directly to housing demand.

The geography helps: flat land means there are limited geographical positional goods in housing. Places like San Francisco, with hills and beaches, mean there are strong geographical positional goods in housing, which encourage land regulation to protect said positional goods. (The same thing happens in Sydney.) Once you start that game, then housing landowners generally want it to continue since it boosts the value of their houses. If cities have lots of non-citizens who are new arrivals, this aggravates the process because housing market entrants are disproportionately not part of the political process, tilting regulation further in favour of housing market incumbents and against housing market entrants. So cities with geographical positional goods (hills, beaches) and lots of foreign migrants will tend to have high housing prices.

Cities with few geographical positional goods (flat land away from beaches) and lots of citizen-migrants (or foreign migrants well-connected to existing citizen networks—such as Hispanics in Texas) will tend to have lower housing prices.

Working out inequality implications from this is more complicated. Washington DC has by far the highest (pdf) level of income inequality as measured by the gini coefficient of any State/Territory in the US, New York is worse than Texas which is on par with California. Alaska, New Hampshire and Utah have the most equal income distributions. But US inequality is also directly connected to its higher per capita income, as one can see from comparing the income distribution of Swedish-Americans to Swedes.

ADDENDA In his response to my comment, Scott Sumner makes some thoughtful points (including a really nice compliment):

Lorenzo, As usual, you know far more about American housing than any Americans I know. Regarding the flat land in Texas, I think land use patterns also play a role. In the midwest there are many farms of roughly a square mile, which can be easily divided up into large housing developments. There is actually a fair bit of land around Boston that is undeveloped, but you don’t have large, easily divided farms or ranches. Instead you have older towns scattered across the western suburbs of Boston, and the residents of these towns try to preserve their semi-rural characteristics. Some midwesterners who visualize a densely populated East Coast might be shocked at how thinly populated many Boston suburbs are. Look on a map at how close places like Weston and Lincolm are to Boston and the Route 128 office belt, and yet large parts of them are quite rural, with horses walking down country lanes. This is true to a lesser extent of many other suburbs.

That seems right to me, with semi-rurality being another positional good to be defended.

There are no moral arguments against homosexuality (only arguments to evade morality)

I agree with maverick philosopher: ‘homophobia’ is a silly word (and ‘Islamophobia’ an offensive one). The problem is not fear of homosexuality (a very specific emotional state), but hatred of it. Queer-hatred is every bit as real as Jew-hatred.

Where I disagree is his claim that there are moral arguments against homosexuality. This is false: there are no moral arguments against homosexuality ['moral arguments against homosexual practice' being, as explained below, a rather arch way of putting it since anathematising the practice entails holding the inclination to be some sort of deformity]. No more than there are moral arguments against heterosexuality or being Jewish, Catholic, black, a woman and so on. That is to say, there are things that purport to be moral arguments against such, but are not. Instead, there are arguments which seek to justify evading the constraints of morality.

There are religious arguments against various of these categories of people, or for the inferiority of being them, but there are religious arguments for all manner of horrid and bigoted conclusions. Perhaps the most active use of God in moral discourse is as an authority to deny moral protections to particular groups: hence, as the salience of religious belief has declined, societies have become more moral in their behaviour while polities which use God-justifications in their public policy are fairly horrid societies. (The Papal States, for example, were the last Western European polity to maintain and enforce the ghetto laws against Jews right up until it lost the power to do so.) While the claim to be concerned about someone’s salvation in attacking their sexuality, them-as-believers or so on is a theological nonsense (involving, as it does, imposed salvation: it is generally one’s own sense of salvation as a “warrior for God” that is operating) and a religious argument, not a moral one.

The function of morality
What is the function of morality? Morality exists so we can live in functioning societies. Morality is not an optional extra: without morality, any level of society above that of a small protection racket is impossible.

If, for example, we can expected to be mugged by anyone at anytime for any useful thing we might find or create, then progress beyond the simplest form of hunting and gathering is impossible: there can be no substantive tool use in such circumstances. If there are no respects for pair bonds, then the basis of substantial cooperation is massively undermined, and so forth. Even the worst criminal relies on the moral restraint of others every time he or she walks down the street.

The fundamental idea of morality is reciprocity in the most general sense: I respect your person, property, etc and you respect mine. If you betray that basic reciprocity, then, to that extent, you are forgoing the protection of such reciprocity. One is moving from the moral mode of behaviour—based on reciprocity—to the power mode—what you can get away with. Since that is clearly a threat to others, you then opens yourself up to sanctions to force you back into the reciprocity protections. (Note: I am using ‘reciprocity’ in the sense of ‘mutual assumption of moral constraints towards each other’, a much more general, and ‘thin’, sense of reciprocity than Jonathan Haidt uses in his five foundational moral impulses).

One of the basic signs of immoral behaviour is that you are demanding a form of respect for you and yours that you are not willing to grant others. “I get to keep mine, but you do not get to keep yours, if it is inconvenient to me”.

Hence the tendency of power imbalance to promote immoral behaviour: the sanctions do not operate equally.

Morality at its most basic is thus “pre-theory”. It deals with the direct realities of human existence. To be sure, people develop complex theories of and about ethics, but these often operate to cut categories of people off from the protections of morality: Thomist moral thought being a case in point. Hence tolerance for homosexuals is directly connected to having social connections with known-to-be homosexuals, with seeing them as “just folks”. (In what follows, I leave aside arguments over how sexual identity should best be described.*)

In the same vein, it is worth noting that anti-propertarian philosophies naturally lead to massively immoral behaviour when people attempt to implement them. Not merely because it takes a great imbalance in power to take people’s property away from them—and because a denial of private property so pervasively attacks human agency by denying people direct connection to resources—but also because it attacks the sense of boundaries and protected ambit for action which is at the heart of morality.

The distinguishing feature of bigotry is that it purports to be a moral claim while denying some group the protections of morality. Hence bigotry is at its worst when conjoined with power imbalances. In fact, they tend to go hand-in-hand, there being obvious problems with trying to deny the protections of morality to some person or group as powerful, or more powerful, than yourself. Thus homosexuals—being a small minority born and raised in overwhelmingly heterosexual families and social milieus—are a particularly vulnerable group: a fact not at all incidental to the virulence and persistence of the antipathy to them. Especially as they therefore make such easy targets for priests and clerics to act as “gatekeepers of righteousness”, deciding who is “in” the moral community and who is “out”, selling effortless virtue to a very large majority against a small and vulnerable minority.
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The only other group with a history within Western civilisation of such persistent and virulent antipathy being the Jews: hardly surprising since queers and Jews have the relevant features in common—small minority who should not exist (the Jews should have accepted Christ, homosexuals should be heterosexual), who were deemed to be in revolt against God’s purpose (Jews were Deicides, same-sex acts contravene the procreative purpose of sex), whose continued existence priests took to be affronts to their theories and who priests could preach effortless virtue to their congregations against as part of establishing their authority as the gatekeepers of righteousness. The Church having taught revulsion against them--just as Muslim are taught to regard dogs (and, for that matter, Jews and Christians) as unclean--both groups were historically subject to murderous brutality by Christian mobs and polities. In post-Enlightenment times, Catholic and Orthodox priests and apologists in particular have taken granting each group equal protection of the law to be a reductio ad absurdem of liberal modernity.

There is also the appalling irony that it was a Jewish thinker whose melding together of the Judaic tradition of scriptural revelation and the Greek tradition of natural law thinking established the notion of God-the-virtuous-exterminator-of-excoriated-minority (the very term ‘sodomite’ invokes God-the-virtuous-exterminator). The notion of virtuous extermination of an excoriated minority thus entering Western civilisation through Catholic and Orthodox teaching, to bear horrid fruit in periodic pogroms and then in the biggest pogrom of them all. (If you want to understand the C19th and early C20th debates about Jews in Western society, the current debates over homosexuals and same-sex marriage replicate the patterns extremely well, with oppression of homosexuals in Christian Africa being analogous to the treatment of Jews in Romanov Russia.)

None of this implies that there anything inherently wrong with criticising people’s beliefs. Indeed, if you can show a belief is false, you are usually doing them, and others, a service given that false beliefs are quite likely to have adverse consequences. If you can show that a belief is immoral, or leads to immoral behaviour, you are also performing a social service by strengthening the web of morality.

I have, for example, no hesitation in saying that—given its dominant claims about proper behaviour towards, and status of, non-Muslims, women and homosexuals—that Islam is an immoral religion because it thereby denies the basic reciprocity that is fundamental to the social function of morality. Not that it is the only religion to do so, Islam just does so rather more systematically and extensively than other religions. (Christian denominations which deny such reciprocity do so by subverting the second principle of Christianity: either by claiming God requires them to, or that such persons are not “really” our moral neighbours, or that “love” requires they be treated so, or some combination thereof.) Note, I am not arguing against people identifying as Muslim, given that the logic of belief is not necessarily the logic of believers—people may well not believe, still less act on, particular doctrines while still adhering to a wider religious identity.

Attacking human agency
Homosexuality, by contrast, no more involves betrayal of the basic reciprocity of morality than heterosexuality does. Moreover, claiming to have “moral” arguments against homosexuality is to attack the personhood of other people quite directly. It is to accuse them of not being proper manifestations of the human, or having “betrayed” their humanity, or whatever, given that, if homosexuality is a proper manifestation of humanity, there can be no moral argument against it. No more than there can be a moral argument against being black or white, for example.

To declare that homosexuality is immoral is also a direct attack on the human agency of homosexuals and is so whether or not homosexuality is chosen. (In fact, there is overwhelming evidence that homosexuality—in the sense of erotic orientation—is not chosen; tell us all about the moment when you “chose” to be erotically oriented to the opposite sex. Same-sex orientation is, fairly clearly, a persistent, normal human variation.) There can be no moral argument for such a pure attack on human agency as that betrays the reciprocity that is the very basis of morality. Hence there can be no moral argument against homosexuality in the same way as there can be no moral argument against heterosexuality.

We can see this by contrasting homosexuality with paedophilia. Children are not emotionally or psychologically developed to be sexual beings. To treat them as sexual beings is to—in a quite profound sense—attack their human agency because you are attacking their healthy psychosexual development: particularly as the relationship must be, in so many ways, such an unequal one.

By contrast, to say that people “are not supposed to be” homosexual attacks their nature as being an improper form of the human. This is a profoundly different claim from saying that children are not sufficiently developed as sexual beings to engage in sexual activity with an adult. The entire basis of attacking homosexuality—of saying it is wrong—is to attack the human agency of homosexuals: to deny their wishes, aspirations, experience etc as having any positive warrant. That is profoundly immoral. It is a profound denial of basic reciprocity.

It betrays reciprocity in another way: it asks heterosexuals to give up nothing (except extending the full moral protections to homosexuals) while asking homosexuals to give up an enormous amount, including self-respect. For it is being demanded of them that they hold their erotic nature, their erotic longings, as immoral, wrong, deformed, not properly human, etc.

There is a sense in which holding that paedophilia is wrong, is immoral, is attacking the nature of the paedophile. But that is being done to protect vulnerable others. Attacking homosexuality defends no one: the claim that one is defending “decency” or whatever by doing so is no more entitled to respect than the claim that attacking Jews, blacks, equal rights for women or whatever is defending “decency”. The notion that one is, for example, “defending” marriage by denying homosexuals equal protection of the law is exactly the same notion that some institution is undermined by giving Jews, blacks, Catholics or women equal protection of the law. (The claim that there is no historical basis for same-sex marriage is simply false: many human societies had various forms of same-sex marriage.)

The claim that there are moral arguments homosexuality is a profound attack on fellow humans in the same way that claiming there are moral arguments against heterosexuality, being black, being a woman, etc are or would be. The entire framework rests on denying homosexuality as a legitimate manifestation of the human. Remembering there is no attack on the basic reciprocity of morality inherent in being a homosexual (“practising” or otherwise). The term ‘practicising homosexual’ itself reflects contempt for others, a demand that they be alienated from their own nature—compare it to ‘practising heterosexual’. (Issues such as promiscuity, consent and so forth pertain to being sexually active generally, not to a particular orientation.) These are not mere acts, one is talking about a pattern of life deeply grounded in someone’s nature: you cannot attack the acts as such without attacking their nature.

Which is why claiming homosexuality is wrong has all the horrid consequences it does: murder, persecution, suicide, misery, breaking up of families by parents rejecting their gay children**, the undermining of integrity through deceit and self-loathing; all manifestations of not being treated as a proper manifestation of the human. The difference between, for example “God hates you”, “God hates the way you are” and “God wants you to repress how you are because it is wrong” are distinctions without much difference: the same with the non-religious equivalents. It is only by ignoring, denying or dismissing as irrelevant the demonstrable consequences of claims that homosexuality is morally wrong that one can even begin to make the claim that there are moral arguments against homosexuality. And such ignoring, denying or dismissal is a profoundly immoral thing to do.

What does one have to not consider to fail to realise that a tradition that held that burning people alive (or throwing them to the dogs to be eaten alive) for the form of sex, or for getting married, represents other than moral barbarism? The notion that a group should not exist is, after all, a provisional warrant for their extermination.

Indeed, the consequences of holding homosexuality to be immoral are so much worse than those of erotically desiring members of your own sex that it is only by massively discounting the experience of homosexuals, let alone their agency, that the claim can even be made. To the extent such consequences are considered, they are blamed—as bigotry typically does—on the victims of the hostile moral framing imposed on them, not as predictable consequences of that framing.

There appears to be no limit to the hatred and contempt people can foist onto their fellow humans for failing to conform to their particular theory of how people “properly” are, for being the gap between theory and reality. Particularly if they hold that theory to be “God’s theory” of the human and so the inconvenient and confronting reality of people who fail to conform to said theory is an affront to God Himself. So much so, medieval Catholicism even published the claim (and beatified its compiler) that Jesus insisted on the extermination of those who failed to conform to the proper nature of the human before He would incarnate.

This is why monotheism has so often been so brutal and oppressive. It is not merely the belief that there is a single truth, but that there is a single authoritative point of view on the truth whose authority is so overwhelming that, not only is almost any level of brutality is warranted to impose it, but it gives its adherents complete sanction to declare categories of people outside the protections of morality—and blame them for being so. Absolutely trumping authority is a form of power imbalance in itself.

To admit the notion of there being moral arguments against homosexuality is to make the basic humanity of homosexuals contestable, to make their sexual orientation to be a mark of deep deformity, in the same way as to mount moral arguments against black people is to turn blackness into a deformity, to make their humanity contestable. It is no act of “love” to do that: it is an act of despite, no matter how much people may delude themselves otherwise. It is only bigotry pretending—as all bigotry does—to be moral, to be making moral claims, while denying fellow humans the reciprocal protections of morality. Such arguments are arguments for avoiding and subverting the restraints of morality in a quite fundamental sense, not embracing them, and are thus not moral arguments at all but anti-moral arguments.

* I generally prefer ‘same-sex attracted/oriented’ and ‘other-sex attracted/oriented’ as being a bit less historically fraught and, in the case of ‘attracted’, less exclusory. But ‘homosexual’ and ‘heterosexual’ have fairly clear contemporary meanings.
** Regarding the effects on families:

“… the study showed that teens who experienced negative feedback were more than eight times as likely to have attempted suicide, nearly six times as vulnerable to severe depression and more than three times at risk of drug use. More significantly, ongoing work at San Francisco State suggests that parents who take even baby steps to respond with equanimity instead of rejection can dramatically improve a gay youth's mental health outlook. One of the most startling findings was that being forbidden to associate with gay peers was as damaging as being physically beaten or verbally abused by their parents in terms of negative feedback, …”

Being banned from associating with people like oneself is both profoundly isolating and a clear attack on, and rejection of, the child’s own nature.

ADDENDA This post has been amended to clarify and extend a couple of points.