"Ukelele Serenade" by Aron Copland is a truly remarkable piece of music; it has a pantomimic quality to it, if I may use this oxymoronic phrase, conjuring funny characters before my eyes. I am not sure I have ever been amused by music before I heard "Ukelele Serenade".
Absence of Nuisance, Increased Options, and Happiness
I am reading Arnold Kling's recommendable Learning Economics. Perusing his chapter on "Can Money Buy Happiness?" prompted me to rephrase my view of the happiness-matter. I wrote these encapsulating comments in the margins:
Happiness is finite in all stages of human and civilisatory development -- unlike the inclination of human beings to extend freedom from nuisance and increase the options available to pursue one's developing interests and preferences. One cannot be infinitely happy or content, but there are no limits to man's ability to improve his lot by shielding himself from nuisance and attaining better options.
Painless dental care or the right to choose freely among a large number of occupations rather than being forced to pursue one's father's occupation -- the attainment of aims such as these will not move the ceiling of happiness any higher than advancements achieved at earlier stages of human development. Yet, they will be pursued because they remove nuisances and widen the range of options from which one may choose.
This assessment is based on my anthropological views, whose core tenet states that
man is the animal that adjusts to its environment by constantly developing new desires, needs, interests and preferences.
Humans are neither built to enjoy permanent rapture, nor is their personal and social weal dependent on constantly high levels of happiness. What is far more important for human wellbeing is (a) the absence of nuisances and (b) the presence of fruitful avenues for personal development; both of which conditions will be accompanied predominantly by low levels of emotional involvement - think of the meditative quality of much of what one likes doing -, though they may lead to an overall situation associated with words such as "happiness" or "contentment".
Two Meanings of Happiness
Happiness as the object of assessment and happiness as an emotional state are two very different kinds of animals. The former will tend to refer to a cluster or series of episodes most of which do not involve high levels of emotionally present happiness.
While writing this post, I am largely free from disturbances and enjoy the pursuit of a large range of options (to argue this or that, to do something else) allowing me to apply myself to activities that I feel drawn to. None of these components of the overall activity are of an emotional quality that I would designate as "happiness". In fact, it is not rare that pain and effort are involved, as when I fail to find the right words or discover contradictions in my beliefs.
It is the overall activity, including the satisfactory result brought about by it, that I tend to refer to when speaking of happiness - happiness as the object of assessment. And this seems to be rather in keeping with my anthropological theory: to be in balance, man does not so much need a permanent stream of ecstatic feelings but the ability to adopt to his environment by creating and fulfilling new desires, which is why I do not read the same book a million times and do not stop playing tennis after the first match, but look for renewed challenges.
So, happiness can be either (1) a localised feeling, mostly of high intensity, or the object of a broader assessment, in which latter sense it is (2) the expression of a balance between our manifold human faculties and the surrounding in which we find ourselves. In its second import, happiness is not necessarily an event of high emotional intensity; in fact, it may be deemed pleasant precisely because it lacks the grip of passion.
At any rate, while happiness as a localised feeling, mostly of high intensity, is finite both in its intensity and frequency, and a mere component among many other components of wellbeing, happiness as expression of a balance between the human and her environment is infinite in its permutations, a challenge to be approached in an infinite number of ways, and a complex achievement comprising many components of very different kinds. Striving for happiness in this sense is part of human nature, and does not lose its high significance for a person because she has surpassed a certain level of income or wealth.
Happiness Research and Behavioural Economics
Happiness research and behavioural economics tend to be popular with those who believe in a world view that seeks to infantalise and hospitalise the average man, i.e. turning him into the subject on which political paternalism is eager to perform its human experiments.
The happiness researchers' perfidious argument then runs like this: our studies show that an income/wealth level above $ 50.000 does no longer increase happiness; so it is fine to take income/wealth above that threshold and to redirect it to those who at lower levels still stand to enhance their happiness either by receiving the redistributed funds directly or by the help of authorities thus funded.
"The rich" are thieves of happiness; they misappropriate resources that are needed to make other people happy. Wastefully happy, "the rich" are denying "the poor" their share of happiness, as the latter are lacking the very resources squandered on the richmen's exhausted capacity for happiness.
Headline: "Economic Research Shows Politics Needed to Achieve Just Distribution of Happiness" - when in fact, there is no economics involved whatsoever, but a highly biased, agenda-driven, and ill-thought through concept of happiness.
Behavioural economists, in their turn, work ardently on "proving" that human beings are (far more) irrational (than previously thought) and hence dubious candidates for responsible action that need to be taken custody of.
Gas attack on the West Front, near St. Quentin 1918 -- a German messenger dog loosed by his handler. Dogs were used throughout the war as sentries, scouts, rescuers, messengers, and more. (Brett Butterworth) - image credit.
The first world war was only two months old, one hundred years ago, a maelstrom gorging on everything living and alive.
Vintage everyday has a fascinating series of black and white pictures showing humans and animals in World War I.
It is the time of the year when summer and autumn are alternating and interfusing. The last two nights were almost hot summer nights; with days of blazing light emanating from a still powerful sun, leaves taking on the colours of autumn, and many already falling. Today was a a grey and dark day of heavy rain, almost like on a snow-less winter day, apart from the mild temperature.
Shrill shriek the crows that to the town in whirls roam: soon come the snows - weal unto him, who - has a home!
The logic of modern technology underscores the importance of liberty for the advancement of our civilisation.
In an article well worth reading, Larry Downes argues forcefully that "largely absent from the platforms of Republicans and Democrats" there is an urgent
need for a radical shift at all levels of government, from laws and policies that delay and deflect disruptive change to an agenda that maximizes the profound potential of technological inventions to improve the human condition. [...]
There’s a better and safer way to protect and encourage disruptive innovation. First and foremost, governments must recognize severe limits in their ability to shape the destination, if not the trajectory, of disruptive technologies. Technology and policy run at different clock speeds, and the gap is getting wider. Even with the best of intentions, the most nimble regulatory agency still can’t keep up with the pace of change in consumer markets. When they try, the result, more often than not, is the invocation of the law of unintended consequences, where rules intended to encourage such noble goals as enhanced competition or the public interest wind up doing just the opposite.
A pro-innovation agenda begins instead by recognizing that markets are far more likely to resolve market failures than regulators, and to do so at a lower cost. This is not because markets are perfect, or appropriate subjects of uncritical reverence, but simply because markets react more quickly than do governments to the negative but usually short-term side effects of disruptive innovation. The next generation of technology is far more likely to remedy consumer harms than regulatory intervention can, and with considerably less economic friction. [...]
Americans, especially those under the age of 30, are deeply cynical about the political process. They live in a universe where technology can be counted on to make the world better and more interesting every 12 to 24 months, where life is approached as a series of problems to be solved through clever hacks, where even impractical dreams can be realized in weeks through a successful Kickstarter campaign. Why should they trust policy-makers who don’t live in their world, or share their optimism for its future, and who can’t be counted on to do what it takes to maximize its potential? Even if that just means staying out of the way.
Scotland votes on independence on September 18 after centuries of being united with England. The referendum on devolution is being carried out in a constitutional and peaceful way, writes Prince Michael of Liechtenstein.
London agreed to the referendum realising that secession is better than forcing Scotland to remain in the union against the wishes of a majority of the Scottish population. A union is only strong if membership is voluntary. London’s response is more reasonable than Madrid’s reaction to the demands of Catalonia. Madrid claims that a referendum on independence among Catalans would be unconstitutional and illegal. It appears the Scottish referendum will be a close call with both sides neck-and-neck, but actual voting is often different to opinions given for a poll. Independence is also a road into the unknown.
In "Restoring the Lost Constitution", Randy Barnett argues that the Constitution cannot claim to be based on an act expressing unanimous consent by "We the People". So how can the Constitution command legitimacy, or be "binding in conscience", in Barnett's weighty, yet not entirely clear formulation?
He offers an intriguing answer that, admittedly, I have not yet thought through sufficiently:
Because people may consent to almost anything, they have the liberty to consent to laws that greatly restrict their freedom. In the absence of actual consent, however their liberty remains intact and must not be infringed.
In sum, though actual consent can justify restrictions on freedom, without actual consent, liberty must be strictly protected. Therefore, when we move outside a community constituted by unanimous consent, every freedom-restricting law must be scrutinized to see if it is necessary to protect the rights of others without improperly violating the rights of those whose freedom is being restricted.
And a little earlier on, he explains:
For consent to matter in the first instance, we must assume ... that "first comes rights, and then comes law" or "first comes rights, then comes government". And this proposition, once accepted, helps explain how lawmaking can be legitimate in the absence of consent. For a law is just, and therefore binding in conscience, if its restrictions are (1) necessary to protect the rights of others and (2) proper insofar as they do not violate the preexisting rights of the persons on whom they are imposed.
1. The argument itself
One of the strengths of this argument is that it creates both
a foundation for democracy, and
a basis for principled arguments for the containment of democratic power.
It seems to me, however, that it does require further support from a logically antecedent consideration: why should it be just that everyone have the same basic human rights, why should it be just that everyone be equal before the law?
Only if these implied demands are justified would the argument appear to be complete.
This, however, leaves us with an open-ended debate, in that the validity of the underlying assumptions are contestable and are, indeed, being permanently contested by voices that include those of liberals.
(1) The religious mooring of the underlying assumptions can in principle be and indeed is copiously and perhaps even increasingly called into question. Even among sharers of the same religion there are wide divergences in assessing the appropriateness or meaning of constitutional precepts or their implications.
(2) This problem does not disappear when rationalistic grounds are appealed to, say in the manner of Murray N. Rothbard, instead of revelatory authority, i.e. if arguments from first principles are offered to motivate the validity of a Constitution.
(3) Ultimately, one will find himself caught up in a consequentialist debate as to the beneficial or unsatisfactory effects of heeding the rules of a Constitution - and this is what has been going on ever since even before the American Constitution has become the law of the land. In other words: the Constitution needs to be defended every day. Not least because the Constitution does leave room for interpretation, dissent and alternative proposals.
At any time, people take for granted (the desirability or extsience or both of) a large number of explicitly stated or implied laws. In terms of consent, this unquestioning concurrence alone takes care of a wide range of constitutional precepts. People are not in open revolt against them, indeed mostly accept them as normal part of the social order. The remainder of the Constitution will have to be chosen so as not to evoke resistance by the people at large or by groups powerful enough to overthrow it.
Keeping the Constitution viable requires room both for defenders and dissenters. The Constitution must be rooted in grown cultural practice and at the same time provide a framework within which a meaningful debate over its validity and implications can take place, inevitably comprising a spectrum of diverging interpretations.
What I find particularly interesting is the hypothesis - which I treat as a fact - that moral and legal conventions (customary law) can actually spring into life and later turn into precepts of the written and formal law without being part of an overarching, premeditated ethical design. This accounts for the fact that in a number of ways we find it difficult to rationalise the morality or establish the rational completeness of an ethical or legal system. Notwithstanding the multifarious efforts at conscious rulemaking, all in all the vibrant web of moral conduct and lawfulness is a growth and not a construction designed to fulfill criteria of perfect logical consistency. The law grew to be what it is: a constantly challenged, constantly remoulded survivor among other practices that lost out or never came into existence to begin with.
We do the things we do, because they are useful and they help our lot to survive when others decline or perish on account of disregarding what we have found to be advisable.
Has there ever been an election trying to establish the fifth commandment by unanimous consent? Hardly. Does this make the maxim less cogent, less legitimate? Hardly.
So, it is likely that a Constitution will incorporate precepts that make it rather acceptable to most people because it protects more or less broadly human and cultural expectations that "we the people" are used to act upon, and would be upset if we could not rely on them to find orientation in social life.
In sum: unanimous consent is impossible - for a Constitution to attain legitimacy what is needed is
cultural compatibility, and
credible, generally accpted forms of defending, contesting and developing it.
I suspect, the Stalin constitution did fulfill these criteria for a number of years in that it scored highly with regard to cultural compatibility, while the backlash in terms of discursive credibility was significantly delayed by the same mechanisms of persuasion and suppression that were propping up cultural compatibility for an extended period of time.
As for the Constitution of a free society, paradoxically, one of its tests is the ability to allow severe challenges to its substance.
Contrasts of black and white can be wonderful, but they are not a useful pattern to grasp freedom. Image credit.
As with a number of other ideological staples of certain brands of demagogic libertarianism, I have come to oppose also their contempt of democracy. Like anarcho-capitalism and crypto-anarchism, both of which many libertarians subscribe to, we are dealing here with bundles of attitudes that purport to favour freedom while, in fact, they are incompatible with her.
A free society is unthinkable unless all citizens have access to the processes of (a) government and (b) the control of government. Political participation is as vital to freedom as it is complex, multi-layered, ambiguous and often messy and woefully imperfect. However, these deficiencies are only additional reasons for the need to defend freedom through the political processes of an open, democratic society.
Underlying libertarian contempt for democracy is an unwillingness to acknowledge the presence of political scarcity, i.e. the presence of political ambitions that are fiercely rivalrous, that is: the presence of diverging political values and aims that are intensively desired, yet incapable of being met simultaneously.
There are vast fields of political scarcity in a modern society, in fact, in any type of society. The libertarian conceit is that markets or market-type bilateral and mutually consenting transactions can successfully overcome political scarcity. The fact of the matter is, however, they cannot.
Libertarians of the anti-democratic bent manage to misunderstand both
the nature of markets, which are NOT conflict-mitigating institutions, but expressions of the absence of conflict with regard to the specific contents of a certain transaction between trading parties, and
political processes outside of and unreplicable by the world of markets, including the political processes of a "composite republic", or to put it differently, a "republican democracy", which are intended to act as conflict-mitigating institutions.
The often triumphantly evoked fact that the constitutional texts do not contain the word "democracy" is spurious. The American Constitution is a product of democracy, and it is purposefully enmeshed in a network of democratic processes, or as Akhil Reed Amar writes in his magisterial America's Constitution. A Biography:
It started with a bang. Ordinary citizens would govern themselves across a continent and over the centuries, under rules that the populace would ratify and could revise. By uniting previously independent states into a vast and indivisible nation, New World republicans would keep Old World monarchs at a distance and thus make democracy work on a scale never before dreamed possible.
See below Philip Pettit's lecture recently held at University College Dublin, in which he outlines the contours and challenges of republican democracy - the lecture itself commencing at time mark 04:00:
Get the thought in your head, and you will find beauty of commercial origin everywhere.
The Apple Watch isn't a tech miracle. It requires a phone to work, creating an Occam's-razor moment for the consumer: Do I need another device if I still have to carry my phone around with me everywhere? Samsung has overcome this by offering a smartwatch that doesn't need a phone.
The Apple Watch's functionality isn't market-beating. It's a basic fitness tracker that can count steps, measure the heart rate and prompt the wearer to be more active. The device can handle messaging the way its competitors do. The Siri voice assistant makes an expected appearance. Though Apple Chief Executive Officer Tim Cook seemed enthusiastic about the watch's useful features, they are too boring to discuss -- particularly in comparison to the Apple Watch's beauty as an object.
Oh, that's what it is. I guess we would have called it hard rock, in my days. The 20-year-old sun of a friend of mine has been to a "metal" concert recently, and I want to be sure I know what he is talking about. Not much different from rock as I knew it during the 1970s, "metal" seems to be perhaps more versatile, more eager to interpret different musical styles from classic music to German folklore or soft rock classics such as "Popcorn", though even such diversification was not uncommon in my youth.
Until just over a century ago, the idea that a company could be a criminal was alien to American law. The prevailing assumption was, as Edward Thurlow, an 18th-century Lord Chancellor of England, had put it, that corporations had neither bodies to be punished nor souls to be condemned, and thus were incapable of being “guilty”. But a case against a railway in 1909, for disobeying price controls, established the principle that companies were responsible for their employees’ actions, and America now has several hundred thousand rules that carry some form of criminal penalty. Meanwhile, ever since the 1960s, civil “class-action suits” have taught managers the wisdom of seeking rapid, discreet settlements to avoid long, expensive and embarrassing trials.
The drawbacks of America’s civil tort system are well known. What is new is the way that regulators and prosecutors are in effect conducting closed-door trials. For all the talk of public-spiritedness, the agencies that pocket the fines have become profit centres: Rhode Island’s bureaucrats have been on a spending spree courtesy of a $500m payout by Google, while New York’s governor and attorney-general have squabbled over a $613m settlement from JPMorgan. And their power far exceeds that of trial lawyers. Not only are regulators in effect judge and jury as well as plaintiff in the cases they bring; they can also use the threat of the criminal law.
At The Library of Law and Liberty blog, Michael S. Greve has an intriguing post on "The German Connection". After the collapse of the Third Reich, there was a thorough rejuvenation of the rule of law (Rechtsstaatlichkeit) in Germany, the substantive notion of the rule of law being strongly committed to liberal (European meaning) principles. At a time when progressives continued in renewed waves to turn over the liberal conception of the rule of law in the US, German courts would stubbornly and successfully defend the newly regained liberal legal regime in Germany.
In the late 1960s, courts and then Congress institutionalized so-called “citizen suits” against government agencies. Unlike regulated parties, citizen plaintiffs don’t have at stake anything you’d recognize as a right; they represent broad, widely shared values. (Environmental groups are the prototype.) The idea was that agencies were routinely “captured” by regulated industries, so there had to be a counterweight—parties with legal entitlements to make executive branch agencies obey the purposes of Congress, as embodied in statutory law. To that end, statutory citizen-suit provisions typically authorize “any citizen” to sue the administrator for failure to perform a non-discretionary duty. So when the statute says that the Environmental Protection Agency “shall” regulate and the agency falls short, environmental groups have a cause of action. They’re equal participants in the agency rulemaking process and in court.
At that time, what was then West Germany was also discovering the issue of protecting the environment. People were apoplectic about pollution. Nuclear reactor sites had to be protected with paramilitary force. A Green Party was beginning to form. And, some lefty law profs trooped to Harvard, learned about citizen suits, and tried to import them into their own country. They penned learned articles about the “enforcement deficit” in environmental law, wrote model statutes, and proclaimed that even Amerika has citizen suits, the better to promote law and democratic participation. Why can’t we have that?
Because you can’t, the West German legal establishment responded. The key argument against citizen suits was not that they would disrupt orderly administration, or invite abuse, or overload the courts. It was: what you people are advocating is Nazi jurisprudence. We’ve thought and worked for decades to get rid of that garbage, and you’re not going to undo our accomplishments just because people get upset about—well, garbage. The citizen-suit trial balloon soon shared the Hindenburg’s fate. There’s no trace of the debate in administrative law to this day.
To be absolutely clear, I am not calling U.S. public interest groups and citizen-suit advocates Nazis. My point is that a legal instrument that well nigh everyone stateside accepted, often with great enthusiasm, went down in flames over there, as an intolerable assault on a liberal legal order. To rehearse the German professoriate’s key argument against citizen suits:
The point of law and especially administrative law (they said) is to protect rights against coercive state interference. To that end, we have independent courts that will perform de novo review on law and facts. If we want to keep that up, we must limit the courts to rights protection. They can’t review the legality of governmental conduct outside that context. A plaintiff who sues for that purpose is asking the court to command the performance of his private idea of how public authority ought to be exercised, and that’s not a right he has or courts can enforce. Likewise, it’s not the business of courts to make government and law more “democratic.” There are institutions, such as political parties and parliaments, to safeguard democracy and participation. Courts, in contrast, guard rights—if need be, guard them against democratic demands.
If you want to mobilize courts as engines of law-enforcement and democracy (the argument continues), they can’t be independent. If you want them to do the will of the people, go make them instruments of that will—and stop the pretenses about individuals’ rights.
Germany took that path once: in 1934, the Reichstag authorized a version of the allgemeine Buergerklage—the general citizen suit. It did so for obvious reasons. The inherited Weimar bureaucracy might not always enforce the new authorities’ race laws with the requisite speed or resolve. What was needed were actions by private informers or Citizens United for the Separation of Jews and State to enhance public participation and ensure obedience to law. That meant, however—and alongside the enormities recorded by history—the end of an independent judiciary. You cannot surrender the exercise of law to “democracy,” nor can you surrender the Staat to a “movement.” Not if you want to have a liberal Rechtsstaat and a judiciary that is institutionally disposed to protect rights.