Note Official Exam Time: Friday, May 1, 7:30a.m.—9:30a.m.
Second Paper Assignment is now here,
immediately following the syllabus
First Paper assignment is now here, immediately
below the syllabus.
Scroll down for Chronology Part I; Locke’s First
Treatise; Madison on “Property;” Kenneth Henley, Religious Toleration and Freedom of
Conscience; Chronology Continued
(through Hume); Kenneth Henley, Hume’s "Wilt Chamberlain
Argument" and Taxation; Kenneth Henley, Hume’s Deflationary Theory of Allegiance, Chronology Continued through Federalist Papers, Montesquieu &
Madison on Separation of Powers
PHM 4430 Topics in Philosophy of Law: Philosophy of
the U.S. Constitution
Dr. Kenneth Henley. Office: DM 344B Phone: 305-348-3346. Office Hours: Mon.,Wed., & Fri. 8:00-8:50
& 10:00-10:50. Website: http://faculty.fiu.edu/~henleyk
Texts:
1. John Locke, Political Writings,
ed. David Wootton (Indianapolis: Hackett, 2003). ISBN
0-87220-676-9 2.
David Hume, Political Writings, ed.
Stuart D. Warner & Donald W. Livingston (Indianapolis: Hackett, 1994). ISBN 0-87220-160-0.
3. Alexander Hamilton, James Madison, & John Jay, The Federalist Papers. Ed. Clinton Rossiter. Signet Classic 2003 (Any complete edition is
acceptable.). 4. Akhil
Reed Amar, The Bill of Rights:
Creation and Reconstruction (New Haven: Yale University Press, 1998) ISBN
0-300-08277-0. 5. The Declaration of Independence 6.
The Constitution of the United States of
America
Course Objectives: 1. To provide an
understanding of the principles of legal, political, and moral philosophy
underlying the U.S. Constitution and the Declaration of Independence. 2. To
provide an understanding of the historical context of the developing philosophy
of the U.S. Constitution
3. To improve skills of reasoning and argument: searching for consistency and coherence,
clarifying questions, ferreting out presuppositions, weighing reasoning and
evidence, and exploring alternative accounts of disputed concepts. 4. To improve writing skills.
Requirements: THIS COURSE
IS NOT DELIVERED ONLINE NOR BY E-MAIL. Class
attendance is required; students should anticipate no more than 4 unexcused
absences. Students must read the
assignment before coming to class. Class attendance, participation and
discussion are important, and may make a difference in the course grade if the
student’s final average is on the borderline between two grades. Two
approximately 6-page papers are required. Dates, topics and guidelines for the
papers will be given in class and posted on my website. While the most important dimension is the
quality of the reasoning and philosophical understanding, grades on papers also
reflect all elements of writing: grammar, punctuation, sentence and paragraph
structure, clarity of expression, and essay structure. There will be a
comprehensive final examination. Each paper and the final examination will
count as 1/3 of the final average for the course. Note that a student cannot
pass without completing all work.
Jan. 12, 14, 16 Wootton, “Introduction”
to Locke, pp. 7-122; Locke, from First
Treatise, pp. 242-59
Mon., Jan. 19 University
Closed—Martin Luther King, Jr. Holiday
Jan. 21, 23 Locke, Second
Treatise, pp.261-327 (through Chap. 9, section 131)
Jan. 26, 28, 30 Locke, Second
Treatise, pp. 327-87 (Chap. 10-end)
Feb. 2, 4, 6 Locke, A Letter Concerning Toleration pp.
390-436.
Feb. 9, 11, 13 Warner & Livingston, Introduction to Hume
vii-xxvi; Hume, selections from Treatise pp.
1-73, selections from 2nd Enquiry
pp. 80-97
Feb. 16, 18, 20 Hume, “Of the Original Contract,” “Of Superstition
and Enthusiasm,” “Of Passive Obedience,”
Feb. 23, 25, 27 “Of the Origin of Government,” “Of Parties in
General,” “Of the Independency of Parliament”
Mar. 2, 4, 6 Hume, “Of the Rise and Progress of the Arts &
Sciences,” “Idea of a Perfect
Commonwealth,” “That Politics may be reduced to a Science”
Spring Break March 9-13
Mar. 16, 18, 20 Federalist 1-36
Mar. 23, 25, 27 Federalist 37-66
Mar. 30, Ap. 1, 3 Federalist 67-85
Ap. 6, 8, 10 Amar, The Bill of
Rights: Creation and Reconstruction, pp. pp. xi-118
Ap. 13, 15, 17
Amar, pp. 119-230
Ap. 20, 22 Amar, 231-307
Ap. 24 Review
Comprehensive Final
Exam: Note Official Exam Time: Friday, May 1, 7:30a.m.—9:30a.m. Students must provide their own Blue-Books.
Second Paper
Due: Mon., April 20 at the beginning of class
Length: approximately 6 pages
Topic: Choose one of the following topics within Hume, Federalist Papers, or Akhil Reed Amar.
A. Hume
1. Why does Hume consider enthusiasm more favorable to liberty
than superstition? Do you agree?
2. In “Of the Original Contract,” what is Hume’s argument that it
is of no use to trace the duty of allegiance to the duty of fidelity
(promise-keeping)? Is this argument sound?
3. In “Of Parties in General,” why does Hume consider factions of
principle especially dangerous, and, among factions of
principle, religious factions the most dangerous of all? Do you agree?
4. On Hume’s view, the rules of justice (with property rules the
paradigm) ultimately serve everyone's interests, so it might seem that
government would be unnecessary in order to achieve conformity with the rules.
What feature in human nature makes government necessary to achieve conformity
with justice? Do you agree with this account? (You must use both the essay “Of
the Origin of Government” (pp. 194-97) and the section of the Treatise also titled “Of the Origin of
Government” (Book III, Part II, Section VII, pp. 47-51).
5. Explain Hume’s account of a perfect (i.e., complete)
commonwealth. Is such a governmental structure, at least in its broad outlines,
acceptable?
6. Hume writes, “It is, therefore, a just political maxim, that every man must be supposed a knave: Though at the same time, it appears somewhat strange, that a maxim should be true in politics, which is false in fact.” And he argues that we must find ways to make it “the interest, even of bad men, to act for the public good.” Explain what Hume means and the implications for the wise structure of government. Do you agree? (You must use at least “Of the Independency of Parliament” and “That Politics May Be Reduced to a Science.”)
B. Federalist Papers
Following are the paper topics in
the Federalist Papers with an indication of some important numbers; of
course, other papers are relevant to each topic. Any of these topics would be
an acceptable focus. You would not, of course, be able to discuss all of the
relevant numbers. Indeed, a paper might analyze and offer a critical response
to one very important number (such as Number Ten or Number Fifty-One), or to
several.
Human Nature (1, 6, 10, 15, 49, 50, 51, 57)
The Need for an Energetic Sovereign Union (2, 3, 4, 15, 17, 23,
25, 37, 80)
Factions, the Extended Republic, and Refining Representation (9,
10, 14, 35, 50, 51, 60)
The Nature of Republican Government (22, 37, 38, 39, 48, 49, 50,
51, 55, 57)
Separation and Blending of Powers (9, 38, 47, 48, 50, 51)
The Representative Nature of the House of Representatives (35, 52,
59, 60)
Slaves and Representation (54)
The Senate's Role (62, 63, 64)
The President, The Legislature, and the Military
(24, 25, 26, 34, 41, 63, 67, 68, 69, 70)
The Compound Republic and Dual
Sovereignties (16, 17, 20, 37, 39, 44, 45, 46, 50, 51, 52, 53, 59, 82)
The Judiciary and the Supremacy of
Federal Law (16, 22, 39, 44, 78, 80, 81, 82)
Section C:
Explain and discuss the basic structure of Akhil Reed Amar’s account of the development of the Bill of Rights from Creation to Reconstruction. How does Refined Incorporation make the full narrative coherent?
First Paper
Due: Wed., Feb. 25th at the beginning of class
Length: approximately 6 pages
Topic Choose one of the following general topics. Do not attempt to answer all of the listed questions in such a short paper. Focus on one or perhaps two related questions within the general topic. In addition to exposition and interpretation of Locke, provide some argued response of your own.
You must use my “Writing a philosophy paper…” hand-out (also on my website).
1. Locke’s Account of the State
of
What are the relations between persons in the state of nature?
What is the content of the law of nature?
In the state of nature, what is the fundamental property that every man has?
In what sense are all equal in Locke's state of nature?
2. Locke’s Account of External Property
How is property (in the sense of external possessions) acquired in the state of nature?
What are the initial limits to the acquisition of property in the state of nature?
How does the agreement to use money affect the acquisition of property?
How are the original limits on property acquisition affected by an individual’s use of his abilities to improve the productivity of resources?
3. Locke’s Account of Civil Government
What are the inconveniences in the state of nature that lead to the compact of society?
What is the end (in the sense of goal or purpose) of government?
What are the terms of the original contract of society? What is given up by individuals to society?
Can the original contract of society be less than unanimous?
What is tacit consent and what extent of authority over the individual does it create?
How is the contract of government formed? Can it be less than unanimous?
How is government limited?
What justifies resistance to the government?
4. Locke on Toleration
Can Locke’s statement that “everyone is orthodox to himself” be reconciled with his assertion that there is “but one truth, one way to heaven”?
How does Locke distinguish between Civil Interests and the Care of Souls?
According to Locke, what is a Church?
What are Locke’s main arguments for toleration?
Why are Catholics and atheists
not to be tolerated?
Background for Locke, Toleration & Constitutional Theory:
Chronology
1517 Martin Luther posts the 95 Theses on the door of the castle church at
1520 Luther excommunicated
1534 King Henry VIII of
1536 Pilgrimage of Grace: A popular uprising in
1541 John Calvin institutes a Protestant theocracy in
1545 Council of
1553-58
Mary Tudor (Mary I) returns
1557 First Covenant of the Scottish Protestants
1560 led by John Knox, Scottish Parliament endorses Calvinist
Presbyterianism
1558 Elizabeth I restores the Church of England,
under the temporal authority of the Crown.
Penal Laws against Roman Catholics. English
Puritans and other Dissenters also prohibited from meeting. Plots, real and
alleged, to place
1567 after forced abdication of the Catholic Mary Queen of Scots, her infant
son James VI becomes King of Scotland. Presbyterian Church becomes official in
1553 Michael Servetus (Miguel Serveto) condemned
under Calvin and burned for denying the Trinity
1562-79
Protestant Netherlands fights for independence from
1562-98
The Wars of Religion in France (the Huguenot Wars) French Protestants (Huguenots) fight against
Catholics.
1572 Massacre of St. Bartholomew's Day.
Murder first of Huguenot leaders and then over subsequent months many
others (about 70,000 throughout
1580-95
publication of Montaigne's Essays,
expressing a subtle tolerance of attitude, and doubt regarding dogma. Montaigne
emphasizes human fallibility. Florio's
English translation of 1603 is widely influential.
1581 Independence of the
1587 Mary, Queen of Scots beheaded (her son James VI of
1598 Edict of
1603 at the death of
1605 (Nov. 5--subsequently Guy Fawkes Day) Gunpowder Plot to blow up
Parliament and James I as he was to open Parliament; conspiracy of English
Catholics against the Protestant establishment and its severe suppression of
Catholic practice. The Plot was discovered and the conspirators killed or
executed. Even more severe suppression of Catholicism followed the plot.
1606 Sir Edward Coke becomes chief justice of Common Pleas (subsequently
of King's Bench). As justice until 1616 and then member
of Parliament, Coke champions the Common Law against royal prerogative and
absolutist claims of the Stuart monarchs James I and Charles I.
1607 settlement of
1620 The Pilgrims land on the Mayflower in
1628 Petition of Right (Coke prominent in drafting) sent by Parliament to
Charles I: no taxes without consent of
Parliament, no arbitrary imprisonment (writ of habeas corpus), no quartering of
soldiers, no martial law in peacetime. Accepted by Charles in order to get
money from Parliament--but soon ignored
1629 Cardinal Richelieu (Louis XIII's chief minister) defeats Huguenots. Peace
of Alais effectively ends political power of
Huguenots, consolidating Catholicism in
1630 John Winthrop leads first large Puritan migration to
1618-48
Thirty Years War, ending with Treaty of Westphalia, which, along
with many territorial and power disputes, ended the worst of the religious warfare
on the Continent. Each prince to
determine the religion of subjects; an attempt at some form of
toleration--rulers could allow full toleration if they chose. The Treaty of Westphalia is seen as the
beginning of the modern system of sovereign territorial states.
1634 first settlers of
1642-8
English Civil War. Complex and changing alliances, with religion one of several
issues--including taxation and other means of raising money for the Crown. The parliamentarians defeat Charles I,
beheaded in 1649. The
Protestant rule of the Rump Parliament and Oliver Cromwell.
1658 Death of Oliver Cromwell.
1660 Restoration of the Monarchy. Charles Stuart
called to
1666 Locke joins the entourage of Lord Ashley (eventually Earl of
Shaftesbury), at first for medical advice.
1675 Having been Lord Chancellor, Shaftesbury now turns into the
leader of the Whig opposition to Charles II. Locke goes on an extended trip to
France, returning in 1679.
1678-9
The Popish Plot. Titus Oates fabricates a Jesuit plot to
assassinate Charles II and thus have the Catholic James, Duke of York ascend to
throne. There are twists and turns,
resulting in anti-Catholic hysteria throughout
1679-81
The Exclusion Crisis (attempt to exclude the Catholic James, Duke
of York from the succession) ends with the defeat of Locke's patron the Earl of
Shaftesbury and defeat of the Whigs's Disabling Bill.
Charles II dissolves the 3rd Exclusion Parliament and resolves to
rule in future without Parliament.
1682 Shaftesbury goes into exile in the
1683 The
1683-9
Locke in exile in the
1685 Louis XIV revokes the Edict of Nantes--Catholic absolutism in
1685 James II, openly Catholic, becomes King on death of Charles II.
1687 James II issues the Declaration of Indulgence, exempting
Catholics from punishment under the laws, despite their validity.
1688 a son, James Francis
Edward (eventually called "The Old Pretender") is born to Mary of
Modena, second wife of James II, thus creating a Catholic succession (James's
Protestant first wife Anne Hyde had two daughters--Mary and Anne).
1688 publication of Algernon Sidney’s Discourses Concerning Government—eventually very influential in
American colonies
1688-9
The Glorious Revolution.
Tory Members of Parliament join with Whigs to invite the Protestant Mary
and her husband the Dutch prince William of Orange to cross to
1689 The Bill of Rights
(English), accepted by William and Mary as condition of their accession: bars Catholic succession to throne; crown
restricted regarding taxation, standing army, dispensing power over
law--establishing a large degree of political supremacy for Parliament.
Locke's
First Treatise of Government: notes & some quotations
K.
Henley
Both
the First and Second Treatises of Government appeared anonymously in 1689,
shortly after the Glorious Revolution, the exile of James II in France, and
Locke's return from exile in the Netherlands. A Letter Concerning Toleration also appeared anonymously in 1689.
Locke never acknowledged authorship during his lifetime--but in his will he finally
did, conferring upon them the immense prestige of the author of An Essay
Concerning Human Understanding, published in his name in 1690 and
foundational for the Enlightenment. The First Treatise was completed (though not
published) in March of 1681 during the Exclusion Controversy, the attempt of
Shaftesbury and his party (the origin of the Whigs) to exclude the Catholic
James, Duke of York from the succession to Charles II. The Second
Treatise was also probably written in 1681, perhaps in June or later.
According to Locke, much of the First
Treatise was lost, but to bolster the Second
Treatise Locke published the remaining attack on Filmer's
use of the Bible to support the divine right of kings and hereditary rule.
The First Treatise is a direct response to
Robert Filmer's Patriarcha (published
posthumously in 1680, written apparently in 1642), which argued that kings had
absolute authority as heirs of Adam, given rule by God Himself.
In
the First Treatise, Locke proceeds in
a rather messy and sometimes incoherent manner. Most of it consists of Biblical
interpretation, demonstrating that Filmer's use of
Scripture is misleading. In addition to
the main point of political philosophy--the rejection of inherited absolute
political authority--the First Treatise
also expresses Locke's insistence upon a rationally argued interpretation of
Scripture and Christian teaching. Just
as political authority requires a reasoned foundation, so does religion--even
when there is a sacred text.
Locke,
First Treatise of Government
Chap.
IX "Of Monarchy by Inheritance from Adam,", section 86: "....For
the desire, strong desire of preserving his life and being having been planted
in him as a principle of action by God himself, reason, which was the voice of
God in him, could not but teach him and assure him, that pursuing that
natural inclination he had to preserve his being, he followed the will of his
maker, and therefore had a right to make use of those creatures which by his
reason or senses he could discover would be serviceable thereunto.” (my emphasis). (section 87) : “This being the reason and
foundation of Adam's property gave the same title, on the same ground, to all
his children, not only after his death, but in his lifetime....and so Adam's
sovereignty built on property, or, as our author [Filmer]
calls it, private dominion, comes to nothing."
Section
103: "...."Fatherly power, I easily grant our author, if it will do
him any good, can never be lost, because it will be as long in the world as
there are fathers; but none of them will have Adam's paternal power, or derive
theirs from him; but every one will have his own, by
the same title Adam had his, viz., by begetting, but not by inheritance or
succession, no more than husbands have their conjugal power by inheritance from
Adam. And thus we see, as Adam had no
such "property," no such "paternal power" as gave him
sovereign jurisdiction over mankind, so likewise his sovereignty built upon
either of these titles, if he had any such, could not have descended to his
heir but must have ended with him." Section 101: “…the law of nature
, which is the law of reason…” (my
emphasis)
Chap. XI, "Who Heir?" Section 154: "This I cannot
but observe, in authors who, it is visible, write not for truth, how ready zeal
for interest and party is to entitle Christianity to their designs, and to
charge atheism on those who will not without examining submit to their
doctrines and blindly swallow their nonsense."
James Madison on “Property”
“Property: This term in its particular application means ‘that dominion
which one man claims and exercises over the external things of the world, in
exclusion of every other individual.’ In its larger and juster
meaning, it embraces every thing to which a man may
attach a value and have a right; and which leaves to every
one else the like advantage. In the former sense, a man’s land or
merchandize, or money is called his property. In the latter sense, a man has a
property in his opinions and the free communication of them. He has a property
of peculiar value in his religious opinions, and in the profession and practice
dictated by them. He has a property very dear to him in the safety and liberty
of his person. He has an equal property in the free use of his faculties and
free choice of the objects on which to employ them. In a word, as a man is said
to have a right to his property, he may be equally said to have a property in
his rights. Where an excess of power prevails, property of no sort is duly
respected. No man is safe in his opinions, his person, his faculties, or his
possessions. Where there is an excess of liberty, the effect is the same. tho’ from an opposite cause.
Government is instituted to protect property of every sort; as well that which
lies in the various rights of individuals, as that which the term particularly
expresses. This being the end of government, that alone is a just government,
which impartially secures to every man, whatever is his own....Conscience is
the most sacred of all property; other property depending in part on positive
law, the exercise of that, being a natural and unalienable right. To guard a
man’s house as his castle, to pay public and enforce private debts with the
most exact faith, can give no title to invade a man’s conscience which is more
sacred than his castle, or to withhold from it that debt of protection, for
which the public faith is pledged, by the very nature and original conditions
of the social pact.”
James Madison, “Property,” National Gazette, March 29,
1792, in James Madison, Writings (New York: The Library of America,
1999) pp. 515-16.
Religious Toleration and Freedom of Conscience
Kenneth Henley (Copyright)
The dimensions and degrees of governmental involvement with religion:
1. Penal law used against those judged heretics (or infidels as well in some forms of persecution). Even individual belief within the family and home are a matter of governmental regulation. In some legal systems apostasy (renouncing the religion one was born into or converted to) is punishable by death.
2. “Unorthodox” group religious practices prohibited.
3. Domestic matters such as marriage depend upon the individual’s religion, which is a recorded matter of legal status.
4. Religious test required for holding various offices or for entering professions or participating in various institutions.
5. A particular religion established as the religion of the state.
6. Governmental involvement in furthering the teaching and inculcation of religious belief of some particular, sectarian kind.
7. Governmental involvement in furthering the teaching of a highly generalized religious belief, for instance, belief in a creator God and divine providence.
8. The use of religious language and ceremonies (particular or general) during public governmental functions.
9. A strict exclusion of every kind of religious entanglement with government, even highly general ceremonial language during public governmental functions.
10. Governmental
authority used to create and maintain a strictly secular public sphere,
restricting the free exercise of religion in the process. (e.g., contemporary
These dimensions can be combined in various ways. For instance, there might be an established state religion (and naturally also ceremonial use of that religion) without other governmental involvement. There might be ceremonial religious language during governmental functions with no further entanglement, or such religious language might connect with governmental involvement with teaching some kind of religious belief.
Note that #10 involves the use of governmental authority in a way that arguably invades the religious liberty of individuals. The combination of prohibiting a governmental establishment of religion while guaranteeing free exercise of religion (First Amendment of the U.S. Constitution) is an attempt to protect individual religious liberty even in the public sphere, while maintaining separation between government and religious institutions.
Chronology Continued (through Hume)
1640-70’s The British slave economy is instituted,
based on sugar and rum in the Caribbean: Jamaica, Barbados. Slavery still not
important on the mainland of North America (where at first impoverished boys
& indentured servants from Britain did the manual labor), but the use of
slaves is gradually increasing on the mainland too
1687 Isaac Newton publishes the Principia. The Enlightenment spirit of confidence in
reason, which pervades the first three-quarters of the 18th century,
has as its original sources Newton and Locke (primarily because of Locke’s Essay Concerning Human Understanding,
published in 1690 under his name)
1689 The Glorious Revolution (see first
part of Chronology)
1680-1750 immense growth of the slave economy of
the British colonies in the Caribbean and North America, with great numbers of
Africans subjected to slavery for the sugar and tobacco plantations (and the
cultivation of other crops in the Southern colonies); death and suffering as
they are transported, treated as units of production on the plantations
1701 The
Act of Settlement ensures a Protestant succession to Anne, heiress apparent, by
excluding the large number of Catholic heirs to the throne in favor of Sophia
of Hanover (daughter of Charles I’s sister)
1702 William
III dies, his sister-in-law Anne ascends
1704 Locke
dies while Lady Masham (daughter of the Cambridge
Platonist Ralph Cudworth) reads the Psalms
1707 The Act
of Union: The United Kingdom as a single government comes into being with the
governmental Union of Scotland and England, voted by both Parliaments
(previously the union was only of the Crowns, not of government). Scots Members
are to sit in the Westminster Parliament, no separate Scots Parliament (until
devolution under Labor government of Tony Blair). Includes an Established
Presbyterian Church in Scotland, with toleration of episcopacy.
1711 David Hume born in Edinburgh. Reared at the family home “Ninewells”
in Berwickshire. A strict Scottish Presbyterian
family
1711-12 The Spectator, periodical published by Joseph Addison and Richard
Steele. Commentaries and
journalism, viewpoint opposed to partisan spirit and all forms of fanaticism
and fervor. Subsequently
influential on the Founders, especially Madison whose father possessed the
8-volume set.
1713 publication
of the Fourth Edition of the Two
Treatises of Government, first to have Locke’s name, containing revisions
and additions from a copy corrected by Locke; also included in 1714 Works
1714 Anne
dies. George, Elector of Hanover becomes King George I.
1715 (“The
15”) Jacobite uprising in Scotland and the North of
England to place James II’s son, James the Old Pretender on the throne. French
support fails to materialize, and the uprising fails. Tory party, which had experienced a resurgence, is seriously weakened by its flirtation with Jacobitism.
1720-3 John Trenchard
and Thomas Gordon (anonymously) publish Cato’s
Letters (144 of them) in the London
Journal, opposing all forms of domination and tyranny, arguing for freedom
of conscience, freedom of speech, and government by consent. Cato’s
Letters were widely available in the colonies in bound volumes—well known
to all the Founders.
1720-42 period of greatest power of the Whig
leader Sir Robert Walpole (often called in retrospect the first prime minister—but
the office did not really yet exist in our sense) Whigs consolidate power, become committed
defenders of the interests of the landed classes.
1739-40 David Hume’s A Treatise of Human Nature published
1745 (“The 45”) The Scots Highland Clans rally to another Jacobite
uprising, this time led by Bonnie Prince
Charlie (the Young Pretender), the son of the Old Pretender and grandson of
James II. The uprising has early success in Scotland, and Jacobite
forces progress into England. Pressed
back into Scotland, in 1746 at Culloden, near Inverness, the Jacobites are defeated in bloody battle (first use of the
combination of bayonet and long-gun, by the Hanoverian troops.) Bonnie Prince Charlie flees back to France
(and eventually a dissolute life in Rome).
Cruel repression of the Highland clans follows—but many Highlanders (and
Lowlands Scots) join the British army in the next decades. Lowland Scotland
becomes the home of non-political innovation.
1740’s-c. 1790 The Scottish Enlightenment: In the cities of Edinburgh, Glasgow, and
Aberdeen academies and reading clubs flourish, a turning away from revelation
to reason and experience. Francis Huthcheson (Irish, but Professor at Glasgow), James Watt,
Adam Smith, Adam Ferguson, David Hume:
technology, invention, commerce, science, philosophy, economics. The
most influential on the American Founders were David Hume and his close friend
Adam Smith.
1742-76
David Hume publishes Essays Moral
and Political (eventually, after expanding, entitled Essays Moral, Political, and Literary) in many editions, adding and
varying the contents over the years through 11 editions (all of these editions
were popular), An Enquiry Concerning Human Understanding in 1748 (originally
titled Philosophical Essays Concerning Human
Understanding), An Enquiry Concerning
the Principles of Morals in 1751 (accessibly written but at first not much
read), Political Discourses in 1752
(very popular, then incorporated into Essays),
and History of England in 6 volumes
between 1754 and 1762 (immensely popular). (The Treatise of Human Nature had been largely ignored when published in
1739.)
Forthcoming in Canadian
Journal of Philosophy
Copyright Canadian Journal of Philosophy
Hume’s "Wilt Chamberlain
Argument" and Taxation
Kenneth Henley
Florida International University
Abstract
Robert Nozick addresses the
idea of egalitarian redistribution in an argument standardly
considered original: the "Wilt Chamberlain Argument." However, this argument (without reference to
Wilt Chamberlain) is found in David Hume’s An
Enquiry Concerning the Principles of
Morals, first published in 1751. Placing this argument within a Humean and Hayekian, rather than a Lockean
or Kantian, perspective radically changes its import for issues of economic
justice. Rather than vindicating the radical individualism of Nozick and other libertarians, applied to our circumstances
using Hume’s conventionalist and evolutionary account of justice, Hume's Wilt
Chamberlain Argument vindicates moderate redistribution constrained by the rule
of general laws and the goal of fostering innovation and industriousness.
In Anarchy,
State, and Utopia Robert Nozick[1] builds an edifice of
individual property entitlements upon a Lockean and
Kantian foundation:[2] property of all kinds
belongs by right to individuals who have acquired it without violating the
rights of others, and any redistribution violates the separate personhood of
individuals, treating them as mere means to achieve a social goal. In
developing his view, Nozick addresses the idea of
egalitarian redistribution in an argument standardly
considered original: the "Wilt Chamberlain Argument."[3] However, this argument (without reference to
Wilt Chamberlain) is found in David Hume’s An
Enquiry Concerning the Principles of
Morals,[4] first published in 1751.
Placing this argument within a Humean and Hayekian,
rather than a Lockean or Kantian, perspective
radically changes its import for issues of economic justice. Rather than
vindicating the radical individualism of Nozick and
other libertarians, applied to our circumstances using Hume’s conventionalist
and evolutionary account of justice, Hume's Wilt Chamberlain Argument
vindicates moderate redistribution constrained by the rule of general laws and
the goal of fostering innovation and industriousness.
Nozick bases his account of property on
individual rights: “Individuals have rights, and there are things no person or
group may do to them (without violating their rights).”[5]
These rights are not derived from positive law, rather
they are moral constraints (“side-constraints”[6])
upon all human actions, individual or collective. From this basis the coercive
power of the state is subjected to a severe criticism, starting with an account
of the state of nature (pre-governmental society) that derives from John Locke.
The transition from the state of nature to institutions of government must be
accomplished without violating any individual rights, and this requires stages
of voluntary protective associations culminating in a dominant protective
agency in a geographical territory.[7] Nozick
argues that only a minimal state can be justified, for the rights of
individuals will be violated by any more extensive use of coercion by the
state. The minimal state is limited to protecting individual rights against
force and fraud and enforcing voluntary contracts. Coercing individuals to help
other individuals, for instance through redistributive taxation, violates
individual rights.
The framework of Nozick’s
Wilt Chamberlain argument builds upon the distinction between end-result
principles of economic justice and patterned distributions of property, on the
one hand, and Nozick’s entitlement theory of
property, on the other hand.[8] End-result principles
specify an outcome as constitutive of a just distribution, regardless of which
individuals occupy which slots in the distribution. Utilitarian and egalitarian
views are examples of end-result principles. A patterned distribution maintains
the array of property along the lines of some favored characteristic, such as
moral merit, contributing to social utility, or need. End-result and patterned
accounts run afoul of the side-constraints established by individual rights,
for achieving and maintaining the result requires governmental coercion of
individual economic activity, going well beyond the coercion allowed in the
minimal state. In contrast, Nozick’s entitlement
theory respects side-constraints. An individual is fully entitled to property
if and only if her acquiring that property does not violate any individual
rights. The resulting distribution of property among individuals is irrelevant,
and although there will be some strands of pattern (for instance, those who
offer products or services valued by others will tend to acquire wealth) there
need not be an overall pattern. Nozick’s account is
“historical”: the only thing relevant is the historical narrative of how a
particular individual comes to possess a particular thing. It should be noted
that the history in question is not a history of the development of conceptions
of justice or of legal regimes regarding property in various societies—the
correct conception of justice in Nozick has no
history. An individual is entitled to what she acquires in accordance with
principles of initial acquisition, transfer, and rectification.[9] The principle of transfer
allows transfer of property by exchange, contract, or gift. The principle of
rectification establishes methods for correcting violations of individual
rights that occurred in the history of the property’s acquisition. As he
acknowledges,[10] Nozick
does not provide a complete account of any of the principles, and the principle
of initial acquisition has unique problems. Of course, violence and other
violations of the rights of others are ruled out. But it is not clear how
acquisition is accomplished. Nozick raises objections
to Locke’s account of acquisition by mixing one’s labor with what is to be
taken, but leaves it an open question whether these objections can be met.[11] After an elaborate
discussion of the “Lockean proviso”[12]—there must be “enough and
as good left in common for others” when appropriating that which is previously unowned—Nozick concludes that a free market will not
violate the Lockean proviso and “the proviso will not
play a very important role in the activities of protective agencies and will
not provide a significant opportunity for future state action.”[13] Thus Nozick
seeks to block a potential argument from the Lockean
proviso for some form of redistribution.
The Wilt Chamberlain argument is an
imaginative counterexample to any end-result or patterned conception of
distributive justice--“justice in holdings” in Nozick’s
terminology,[14] for Nozick
rejects the implications of the phrase “distributive justice,” which seems to
imply that property is distributed by some authority or initial owner. Imagine
an end-result or pattern, for instance equality (but any redistributive pattern
comes under the argument), and then consider the case of a particular talented
athlete, Wilt Chamberlain in Nozick’s now dated text.
The athlete enters into a contract to receive a set amount of money from the
ticket price of home games, and this extra fee is actually deposited into a
separate box by each person attending home games. The talented athlete gets a
lot of money this way, and so the favored end-result or pattern (for instance,
equality) is upset. Nozick explains,
The general point illustrated by the Wilt
Chamberlain example…is that no end-state principle or distributional patterned
principle of justice can be continuously realized without continuous
interference with people’s lives….To maintain a pattern one must either
continually interfere to stop people from transferring resources as they wish to,
or continually (or periodically) interfere to take from some persons resources
that others for some reason chose to transfer to them. (…Why not have immediate
confiscation?)[15]
Hume’s Wilt Chamberlain argument, without
the athlete, has a radically different framework. Hume rejects Locke’s natural
rights theory of property along with the contract theory of government. Hume
insists that “the sense of justice and injustice is not deriv’d
from nature, but arises artificially, tho necessarily
from education, and human conventions.”[16] Hume is here contrasting ‘natural’ and
‘artificial’ (in the sense of ‘produced through human artifice or
contrivance’). In his distinctive sentimentalist version of virtue theory,
there are natural virtues (such as generosity, benevolence, gratitude, and
kindness toward children) and artificial virtues (such as justice,
promise-keeping, and allegiance). Natural virtues have a basis in sentiments
found in human nature, prior to any sense of morality. The artificial virtues
are also indirectly dependent on human sentiments (most importantly
self-interest), but there are no prior particular sentiments associated with
each particular artificial virtue.
“Justice” in both Hume’s A Treatise of Human Nature and An Enquiry Concerning the Principles of
Morals only concerns property. Annette Baier has
recently argued that Hume subsequently expanded his conception of justice to
include much in addition to property and even used natural equity to provide critical
distance from rules currently in force.[17]
But in the Treatise justice is an
artificial virtue regarding property, depending upon conventions that develop
slowly in society, without prior design. These conventions of justice further
long-term enlightened self-interest by providing constraints on immediate
motives of self-interest and avidity—the unplanned upshot is a plan of mutual
advantage.[18] Hume’s account of
promise-keeping follows the same pattern. Hume explains the way conventions of
promise-keeping evolve because they serve the mutual advantage of individuals,
securing to each what is in his interest.[19]
“Afterwards a sentiment of morals concurs with interest, and becomes a new
obligation upon mankind. This sentiment of morality, in the performance of
promises, arises from the same principles as that in the abstinence from the
property of others. Public interest, education, and the artifices of politicians have the same effect in both cases.”[20] Unlike natural virtues such as
benevolence, there need be no affective component directed toward either the
beneficiary of the conduct or the particular action (except as an instance of
rule-following). The affective component of justice and fidelity is directed
toward the rules themselves: through conditioning an affective attachment to
the rules arises to support the underlying private and public interests.
Hume narrates a kind of speculative
history of the gradual development of property, from simple possession
validated by informal convention to full protection of property under the rule
of law. Government and magistracy fill out the bare-bones of justice and
execute its requirements. For my project regarding a Humean
perspective on taxation, it is important that Hume sees government as providing
a benefit going beyond justice: “But
government extends farther its beneficial influence; and not contented to
protect men in those conventions they make for their mutual interest, it often
obliges them to make such conventions, and forces them to seek their own advantage,
by a concurrence in some common end or purpose….Thus bridges are built; harbours opened; ramparts rais’d;
canals formed; fleets equip’d; and armies disciplin’d; every where by the
care of government....”[21] Government uses coercion to
remedy the short-sightedness of individuals and to co-ordinate their efforts in
needed public endeavors, where otherwise “each seeks a pretext to free himself
of the trouble and expence, and wou’d
lay the whole burden on others.”[22]
The second Enquiry drops the grand taxonomy of natural versus artificial
virtues, but in substance the distinction remains, and justice retains its
conventional and invented status, in contrast with, for instance, benevolence
and generosity. We are born (or immigrate) into a particular legal system, with
complex rules establishing justice in property. Although the conjectural
history of justice in the Treatise is
largely dropped in the Enquiry,[23] Hume’s account still places
justice regarding property within a historical, evolving framework. As Knud Haakonssen has perspicuously
explained, “…Hume’s theory is of such a design that it fairly clearly points
out the place of history, without itself being a historical theory….”[24]
Some of the general, abstract property
rules are, Hume notes, in a sense “Laws of Nature,”[25]
for they are such obvious ways of bringing stability to property that they are
found in some form in all human societies: “stability of possession, its
translation by consent, and the performance of promises” are fundamental
artifices “antecedent to government.”[26]
But in every society much more detailed rules are gradually developed, with
much that is either a local variant or even arbitrary. In societies with
government and the rule of law, conventions harden into complex, highly
legalistic rules. Hume emphasizes the contingent and invented features of
property:
What is a
man’s property? Any thing, which it
is lawful for him, and for him alone, to use. But what rule have we, by which we can distinguish these objects? Here
we must have recourse to statutes, customs, precedents, analogies, and a
hundred other circumstances; some of which are constant and inflexible, some
variable and arbitrary. But the ultimate point, in which they all professedly
terminate, is, the interest and happiness of human
society. Where this enters not into consideration, nothing can appear more
whimsical, unnatural, and even superstitious, than all or most of the laws of
justice and of property.[27]
And yet, despite the similarity to
religious superstitions, the rules of property are to be inviolably observed,
for unlike religious superstition, society cannot subsist without justice in
property, with all the varying local details of property rules.[28] These rules include
detailed positive law concerning stability of possession: present possession (which can fully
determine property only at the beginning of society), occupation, prescription
(long possession), accession (when imagination annexes as property what is
connected to something already owned), and succession (inheritance).[29] Even the transfer of
property by consent requires detailed practices specified by positive law. “The
giving of stone and earth represents the delivery of a mannor.
This is a kind of superstitious practice in civil laws, and in the laws of
nature, resembling the Roman Catholic superstitions in religion...lawyers and
moralists have run into like inventions...and have endeavor’d
by these means to satisfy themselves concerning the transference of property by
consent.”[30] We are not
to omit consideration of the interest of human society, and even the observance
of arbitrary rules promotes that interest until those rules are changed.
Justice regarding property varies, and may be changed by law.[31]
The rules regarding property that are in
place in a particular society must be rigidly implemented. The rule of law
(governance by law, not men) requires that only general and impersonal rules be
allowed to determine matters of property. Property rules are unnaturally “universal and perfectly inflexible.”[32] There must be “strict
observance”[33] of “general inflexible
rules” establishing “sacred and inviolable” property.[34]
The content of specific property rules does not reference any goal such as
promoting utility or benefitting those in need. It is the maintenance of the
whole system of rules that promotes mutual advantage (private and public
utility). For instance, loans must be repaid, even if the creditor is a rich
miser and the debtor and his family will become impoverished. As Hume notes,
A single act of justice is
frequently contrary to public interest;
and were it to stand alone, without being followed by other acts, may, in
itself, be very prejudicial to society….Nor is every single act of justice, consider’d apart, more conducive to private interest, than
to public….But however single acts of justice may be contrary, either to public
or private interest, ‘tis certain, that the whole plan or scheme is highly
conducive, or indeed absolutely requisite, both to the support of society, and
the well-being of every individual. ‘Tis impossible to separate the good from the ill. Property must
be stable, and must be fix’d
by general rules….And even every individual person must find himself a gainer,
on balancing the account; since, without justice, society must immediately
dissolve, and every one must fall into that savage and solitary condition,
which is infinitely worse than the worst situation that can possibly be suppos’d in society.[35]
Each particular act of a natural virtue such as benevolence is
like a stone added to a wall, contributing on its own to the building of
happiness. Justice, in contrast, is like a vault—only the whole scheme, not
individual parts, serves the purpose of promoting mutual advantage.[36]
This conventionalist account of justice in
property is the setting for Hume’s “Wilt Chamberlain” argument in the second Enquiry.[37] Hume imagines a rational being with no
knowledge of human nature designing a property regime. One possibility would be
to assign property according to virtue or merit, but this would require a
god-like insight into each individual’s desert, and there are varying standards
of merit even so. Equality then might seem to this rational, but ill-informed,
designer the best rule of justice. Hume notes that utopian schemes such as those
of the Levellers during the English Civil War took
this view. In a striking application of, it seems to me, the idea of declining
marginal utility, Hume acknowledges that inequalities “rob the poor of more
satisfaction than we add to the rich, and that the slight gratification of a
frivolous vanity, in one individual, frequently costs more than bread to many families and even provinces.”[38] Yet despite such unfortunate results of
abandoning equality, once knowledge of human nature is taken into account, a
regime of equality cannot be maintained, and even attempting it would risk
impoverishment of the society and even tyranny:
Render possessions ever so equal, men’s
different degrees of art, care, and industry will immediately break that
equality. Or if you check these virtues, you reduce society to the most extreme
indigence….The most rigorous inquisition too is requisite to watch every
inequality on its first appearance; and the most severe jurisdiction, to punish
and redress it. …so much authority must soon degenerate into tyranny, and be
exerted with great partialities….[39]
This is Hume’s “Wilt Chamberlain
Argument.” Hume clearly understood the same point that Nozick
came to see about 200 years later. But in Hume that point does not contribute
to an argument for the minimal state or any other radically individualist norm.
Hume locates the Wilt Chamberlain point within a conventionalist, evolutionary
and pragmatic account of justice.
The passage I call “Hume’s Wilt
Chamberlain Argument” has not gone unnoticed by commentators, although the
comparison to Nozick seems to have escaped comment.
Both David Miller[40] and Annette Baier[41] have placed the passage
into their interpretations of Hume, but with very different views of Hume’s
underlying point. Miller sees Hume’s point as entirely opposed to any attempt
to foster equality. In contrast, Baier sees Hume as
sympathetic to the goal of equality, but recognizing that the goal cannot be
achieved without disastrous results. Baier’s
interpretation of the crucial passage comports with her argument that Hume
evinced a halting but developing concern for equity or fairness as a natural
virtue, allowing for criticism of the established conventions and laws of
justice.[42] In her view, Hume considered
that equity required at minimum that an individual get what the conventions and
laws dictate, but equity still provided a standard of criticism to further
fairness by reform.
My project is to situate Hume’s insights
in the passage within a Humean conventionalist,
legalist, evolutionary account of Wilt Chamberlain’s (and our) society,
contrasting Nozick’s use of these same insights
within his individual natural property-rights framework. Baier’s
emphasis on equity in Hume fits with an application to our society that burdens
the rich through progressive taxation, constrained by promoting industry and
innovation.
There is no entry for “Hume” in the index
of Anarchy, State, and Utopia, and
this makes sense on two counts. First, Hume was then treated almost entirely as
an epistemologist and meta-ethicist, and his political philosophy was largely
ignored, except for the attack on contract theory in his essay “Of the Original
Contract,”[43] and his account of the
circumstances of justice[44], for instance, as discussed
in Rawls’s A Theory of Justice.[45] Secondly, Nozick’s Lockean (and to a lesser
extent, Kantian) presuppositions hide even the possibility of confronting an
account like Hume’s that refuses to treat ownership as a fundamental concept,
without a social origin that evolves into the complexity of varying positive
law.
And yet it is still puzzling that Nozick ignores Hume, for Nozick’s
chief economist, rather than philosopher, is F. A.
Hayek, and he was not a Lockean, but a Humean. Although Hayek is best known for his warning
against the danger to liberty of adopting a centralized command economy,[46] and as a Nobel-laureate
economist, he wrote extensively about social and political theory and the
history of Western conceptions of liberty and the rule of law.
Hayek developed an account of the social
evolution of justice that is Humean in its
conventionalism and reliance on historical development. Hayek shares Hume’s
rejection of natural rights accounts of justice, and thus is fundamentally
different from the Lockean libertarians (such as Nozick), despite their attempts to gloss over the
contrast. Hayek considers the social
evolution of “spontaneous order” the key to institutions of law and liberty in
Western democracies.[47] Hume’s conception of
conventions that arise antecedently to government, as individuals seek to
promote their own interests, is echoed in Hayek’s idea of spontaneous order,
and Hume is frequently invoked by Hayek.
Hayek’s essay on Hume’s legal and
political philosophy[48] would have provided Nozick with all he needed to explain and, presumably, then
offer a rebuttal to a Humean account. In this essay,
Hayek emphasizes Hume’s empirical narrative of the gradual unfolding, without
prior design, of the conventions regarding justice in property and the rule of
law. He contrasts this non-rationalist, social evolutionary approach to
“constructivist rationalism,” and notes that Locke was not untouched by such
rationalism.[49] Unlike Lockean
libertarian conservatives, Hayek--who refused the label “conservative”[50]--approved of using
resources in an affluent society to support those in need, as long as that is
done without disturbing markets, through procedures of representative
democracy, and using proportional rather than progressive taxation.[51]
Let us consider the actual Wilt
Chamberlain. He was born into a nation with laws, including very detailed and
extensive laws regarding property. Applying Hume’s conventionalist, legalist,
and evolutionary account to Chamberlain’s (and our) society, a modest degree of
redistributive (though not leveling) taxation was long established as an
element of justice. In the Enquiry shortly
after his Wilt Chamberlain argument, Hume writes, “…all questions of property
are subordinate to authority of civil laws, which extend, restrain, modify, and
alter the rules of natural justice, according to the particular convenience of each community. The laws
have, or ought to have, a constant reference to the constitution of government,
the manners, the climate, the religion, the commerce, the situation of each
society.”[52] Every opportunity available
to Wilt Chamberlain was substantially affected by the surrounding economy and
legal system, for it is impossible to consider one individual’s earning chances
apart from the surrounding social and economic context. People cannot purchase
any good or service except with what has relative worth (money in its varying
buying power), and a society unable to fund star athletes with huge salaries
might have someone in it with Wilt Chamberlain’s talents, but without the
chance to pay him (indeed, without even the elaborate structure of professional
sports and mass media). As he entered into his career, he found himself in a
society with all the media and other structures that enabled the career, and he
was under laws governing every aspect of property and income. Most relevant to
the Wilt Chamberlain Argument, he was subject, equally to everyone else, to the
tax laws. These laws did not seek to equalize property, but they did include
progressive taxation (though mitigated by many major ways to shelter income
from the top rates). When the actual Wilt Chamberlain earned a dollar, some
part of it was already not his, but rather belonged to the government under
which the very concept of a dollar had meaning and within whose laws property
was established. Let us imagine that there are two boxes, the first marked
“Wilt Chamberlain’s Net” and the second marked “Wilt Chamberlain’s Contribution
to the National Budget” (or “from W.C. to the United States Treasury”). Each fan
is required to bring quarters, and put three into the first box and one into
the second. This reflects the fact that the taxpayer owes taxes ab initio and what one owes is not really
one’s own.
Wilt Chamberlain would be making a larger
contribution to the national budget even if taxation is not progressive, but
rather proportional. In “Of Some Remarkable Customs,” Hume notes a historical
example of laws changing from taking the same absolute amount from everyone to
proportional taxation: “Thus Demosthenes, finding that ship-money was levied
irregularly, and that the poor bore the same burden as the rich in equipping
the gallies, corrected this inequality by a very
useful law, which proportioned the expence to the
revenue and income of each individual.”[53]
As allowed by Athenian procedures, the resentful rich brought an unsuccessful
criminal complaint against Demosthenes for the innovation. But why not take the
same absolute dollar amount from each taxpayer, regardless of income (perhaps
with a floor below which no tax is due)? Equal contribution can mean either
equal absolute amount or equal percentage, as seen in Hume’s account of
Demosthenes: bearing the same (an equal) burden is yet called an “inequality”
by Hume, the correction of which is “a very useful law.” (Note Hume’s approval
of reforming law.)
After all, Nozick
is correct that it is the voluntary decision of individual fans to pay extra to
see Wilt Chamberlain play, and the extra money they give to him comes from
their after-tax income, so, after contributing the same absolute amount in tax
as everyone else, Chamberlain should be able to keep all the rest, avoiding
double taxation. (This is similar to the view of those who assert that the
estate tax constitutes double taxation.) The explanation of proportional
taxation is given by F. A. Hayek:
…since almost all economic activity
benefits from the basic services of government, these services form a more or
less constant ingredient of all we consume and enjoy and that, therefore, a person
who commands more of the resources of society will also gain proportionally
more from what the government has contributed. More important…proportional
taxation leaves the relations between the net remunerations of different kinds
of work unchanged.[54]
It should be noted that Hayek’s argument
can be converted into an argument for progressive taxation by indicating that
the very rich gain not merely proportionally more from what government
contributes in a particular society, but rather they gain extremely
disproportionally more. But Hayek rejects progressive taxation, although a
specific kind of tax such as the income tax may need to be graduated in order
to compensate for the disproportionate impact of indirect taxes upon those with
lower incomes. Hayek considers substantially progressive taxation a violation
of the principle of equality under law.[55] The point to consider for Nozick’s
use of the Wilt Chamberlain Argument is that Hayek’s objection to progressive
taxation is not based on Lockean conceptions of a
natural right to property, but rather on a Humean
concern that justice requires general rules that can be applied impartially. It
is obscure why Hayek holds that progressivity necessarily involves the
injustice of partiality or lack of generality, for although progressive
taxation could be an element in a tax regime that fails to provide general
rules that can be applied impartially, the failure would not be in virtue of
the progressivity, but rather other features (e.g., extreme complexity and ad hoc provisions favoring special
interests) making the incidence of taxation either unpredictable or so
individualized as not to be law-like. Hayek’s own general account of taxation
as consistent with liberty and the rule of general law seems
to require only that the incidence of the tax be predictable.[56] And Hume’s view is similar:
generality requires that law “regard alone some essential circumstances of the
case, without taking into consideration the characters, situations, and connexions of the person concerned, or any particular
consequences which may result….”[57] Framing law in terms of
“some essential circumstances” will make its application predictable and not
arbitrary. Hume criticized taxation in France because of “the expensive,
unequal, arbitrary, and intricate method of levying them, by which the industry
of the poor, especially of the peasants and farmers, is…discouraged….”[58] The inequality Hume means
is partiality and unpredictability in application of the tax law by the French
tax farmers. There is nothing in Hume’s account that precludes general tax laws
that are progressive, when impartially applied.
From a Humean
social evolutionary approach (pace
Hayek), non-confiscatory, moderately progressive taxation can be seen as having
been tested in various societies and found to be consistent with providing
incentives for people to be industrious and use their talents in creative and
innovative ways that benefit both themselves and society. Nozick’s
Lockean natural rights approach to property does not
allow him to accept even proportional taxation, at least as used to go beyond
the confines of the minimal state.
In “Of Taxes,” considering excise and
customs taxes, Hume argues that such taxes will, at least under some conditions
and when not onerous, cause “the common people” to “increase their industry” so
as to maintain their standard of living.[59]
Taxation must not, however, be so onerous as to cause innervating despair. But
in contrast Hume judges that “The best taxes are such as are levied upon
consumptions, especially those of luxury; because such taxes are least felt by
the people.”[60] As these almost opposing
points about impacts of taxation on the common people illustrate, Hume had a
complex perspective concerning economic classes and the emerging commercial
society. He rejected the standard mercantilist view of the “Utility of
Poverty,” which considered poverty as the necessary motivation for the poor to
work.[61] And yet Hume did appeal to
increased industry through need created by moderate taxation, and he did think
that the enclosures would stimulate productivity both through improved
agricultural methods and by casting the rural poor out of their low-level
contentment into the urban workforce.[62]
And Hume disapproved of giving to beggars, considering this short-sighted
benevolence.[63] His view of these three
matters seems to concede that need does have some role in motivating work. But
again in contrast to his view of beggars, Hume affirmed an obligation to help
the needy: “A rich man lies under a moral obligation to communicate to those in
necessity a share of his superfluities.”[64]
Despite conceding some force to
need-motivation, Hume’s main emphasis falls on the productivity-motivating
roles of the desire for action and for acquiring sources of enjoyment, in addition
to the obvious desire for gain. The desire for recognition and social approval
based on one’s prosperity and the fineness of one’s possessions also motivates
industrious activity, for on Hume’s view pride is generally a virtue, not a
vice. So luxury (refinement in taste that is a source of admiration) is on
balance socially beneficial.
Shifting attention concerning taxation
from the present to Hume’s time requires focusing on excise taxes and what we
now call sales taxes rather than income tax. This shift in focus enables us to
see the weakness of Nozick’s assimilation of taxation
to forced labor.[65] Nozick is able to
play on the idea of an hourly wage (he ignores the inconvenient existence of
salaried workers) to argue that taxing a person is (or is analogous to) forcing
that person to work for the time it takes to pay the tax. Hume favors taxing
luxury goods because that impacts the bulk of people the least—thus Hume favors
what Nozick considers an end-state principle of
taxation. But the question of how many hours (or what kind) of labor is forced
by the luxury tax seems inapplicable. The rich person buying the luxury may not
do any kind of labor or work; he may have inherited wealth or property
generating wealth. Hume approved of luxury, when not pursued to the detriment
of duties and showing benevolence to others,[66]
as a spur to industriousness and progress: “To imagine, that the gratifying of
any sense, or the indulging of any delicacy in meat, drink, or apparel, is of
itself a vice, can never enter into a head, that is not disordered by the
frenzies of enthusiasm.”[67] So his preference for luxury taxes was not
based on puritanical sentiment, but rather on concern to burden the rich more
than the poor—a kind of progressive taxation. So when Wilt Chamberlain or LeBron James buys a Rolex, a tiny bit of judicious
progressive taxation would not be expected to weaken the work ethic. The same
can be said of a bit of progressivity in an income tax in our society, with the
question how steep the progression before undesirable effects occur a matter to
be determined by experience. Although on Hume’s “Wilt Chamberlain” argument
liberty and prosperity are inconsistent with maintaining equality of wealth,
taxing the rich more than others is justified and consistent with both liberty
and a commercial society that fosters industriousness.
I draw two conclusions from this inquiry,
the first regarding the nature of property in liberal political theory. The
contrast between Nozick and Hume is instructive in
understanding two very different strands of classical liberalism (both distinct
from welfare liberalism, for instance John Rawls): the Lockean
strand that leads to individualist libertarianism with only a minimal state,
and the Humean strand (also found in Hayek, openly
indebted to Hume) that leads towards some version of modest liberalism,
recognizing a role for the state that is larger than the minimal state, but
limited by the need to maintain motivation for individuals to be productive and
the working of commercial society with a free market. The “Wilt Chamberlain
Argument” provides a point of entry into the debate, for the specific insight
in this argument is precisely the same in both Hume and Nozick,
but the significance of that insight varies radically depending upon the larger
framework, Lockean natural property rights versus Humean conventionalism.
The second conclusion is about the
difficulty of interpretation of Hume on property and taxation. Hume’s view,
taken as a whole, is exceedingly complex. He seeks to reconcile elements that
are in tension, even potentially contradictory. The most important of the
elements are Hume’s insistence on rigid conformity to inflexible current legal
rules regarding property in a particular society, his recognition that laws sometimes
need to be reformed, his defense of commercial society (which requires
motivation of industriousness), and his humane concern to help those in need.
Any attempt to smooth over these disparate elements must be untrue to Hume’s
thought.
·
Hume argues that no
account of allegiance can always provide a determinate answer to the question
whether allegiance is owed to a particular regime by a particular person.
·
Hume’s
deflationary theory seeks to explain why this disappointment is unavoidable—why
there cannot be a robust theory that provides a decision in every case.
·
Allegiance is
indeed virtuous, for it rests on self-interest and, through sympathy, upon
social or public interests. There can be no government without allegiance, and
government is needed in order to settle disputes and provide for public goods
through cooperative endeavor.
·
But there can be
no such thing as abstract allegiance—allegiance as a virtue of an actual person
must have a particular object of allegiance. Although allegiance arouses
approbation, the object of allegiance may be unfortunate and the actual
allegiance may arouse disapprobation because the attachment is fanatical and
defeats the purpose of
promoting utility.
1. Religious Fanaticism: Divine Right or
Appointed by God.
2. Philosophical Fanaticism: Lockean
Contract or Individual Consent.
3. Philosophical Rationalism: Allegiance only
to the particular regime that best promotes public interests.
4. Passive
Obedience: Allegiance regardless of the impact of the regime upon public
interests.
·
Neither human
will nor human reason suffices for convergence and stability of allegiance.
→ Both fanatical
accounts are voluntarist: will of God or will of
individuals. There is no way to settle disagreements about the will of God, and
individual wills cannot be expected to converge in a stable way over time.
→ The
philosophical-rationalist account exaggerates the capacity of reasoning to
settle such matters regarding particular outcomes in a way that allows for the
needed consensus. Stability and shared allegiance are of greater importance
than directly consulting social advantage to determine allegiance, for
interminable disputes would result if we sought to use such a rational standard
as interest, private or public. “’Tis
interest which gives the general instinct; but ‘tis custom which gives the
particular direction.” (T 3.2.10.4; SBN 556)
·
Passive obedience
severs altogether the connection between particular allegiance and the
underlying point of allegiance-in-general—to promote public interests by
establishing a structure for dispute resolution and providing public goods.
1. Long possession
2. Present Possession
3. Conquest
4. Succession
5. Positive
Laws
·
A plurality of
principles cannot constitute a decision procedure unless there is never a
conflict or there are rules for resolving conflicts.
·
There are
conflicts, and there are no rules for resolving conflicts, even when Positive
Laws purport to be determinative.
·
Fidelity to
promises facilitates cooperative endeavors among private persons by engendering
mutual trust. Allegiance undergirds peace and order in the society as a whole.
Both are advantageous, but neither works through the other. (T 3.2.8.6; SBN
544) Thus to base allegiance on promise is both to introduce a needless
intermediate step and to misconstrue the separate moral sentiment of allegiance
as a species of promise-keeping.
·
Unlike fidelity
to promises, allegiance must take its object where it finds it, at least in the
usual case: “We naturally suppose ourselves born to submission; and imagine, that such particular persons have a right to
command, as we on our part are bound to obey.” (T 3.2.10.3; SBN 555)
·
The two
artificial virtues of justice-regarding-property and allegiance share many
features, including, of course, the basis in convention.
·
But justice can
be made determinate within a particular community by shared conventions that
give fine-grained and consistent general rules for deciding who has title to
what property. Allegiance does not as readily lend itself to such determinacy,
and in some circumstances there simply is no clear answer to the
question who has title to allegiance.
Hume considers allegiance highly contingent when taken as including a
particular object, and seeks to deflate its pretensions, diminishing fanatical
strife. In general and usually, there is no comparable worry about justice
regarding property, for within a stable regime that holds the allegiance of the
citizens, property can be re-assigned and redistributed under the rule of law
without the chaos of disputes about allegiance, which may lead to civil war.
Thus Present Possession has a very different role in matters of property and
questions of allegiance. Only if property disputes lead to widespread
abandonment of allegiance would there be anything that could be called a
fanaticism of justice regarding property.
Chronology Continued through Federalist Papers
1740’s through c.
1789 The French Enlightenment. Building upon Descartes’s
earlier philosophy of clear and distinct ideas and upon the confidence in
reason fostered by
1748 Montesquieu publishes The Spirit of Laws, argues for
separation of powers in government—influenced by Locke and by Montesquieu’s somewhat inaccurate understanding of the
functioning of the English constitution. An important
influence upon the Founders.
1732-1752 Benjamin Franklin publishes Poor Richard’s Almanack. He also conducts scientific experiments and
observations (most famously concerning electricity) and invents.
1763 French
and Indian Wars end.
1764 Tax
on molasses and sugar—but this is seen by most as an indirect tax connected to
admitted right of Parliament to control navigation and commerce among its
dominions
1765 The
Stamp Act passed by Parliament during George Grenville’s ministry. First direct
tax imposed on colonists, applied to newspapers, pamphlets, advertisements, all
legal papers. Sons of
1767 The Townshend Acts: taxed imports of
paper, glass, lead, paints, and tea. These the British considered “external” or “indirect” taxes,
but this time the Americans do not accept the distinction.
1770
March 5: The
1773 Dec.
16: The
1774 “The
Intolerable Acts,” name given by colonials to 5 Acts of Parliament, 4 of them passed
as punishment for the Boston Tea Party.
1774 The
First Continental Congress meets in
1774 To the Virginia Convention Thomas Jefferson presents A Summary View of the Rights of British America, arguing that the
only tie to
1775 April
19: Battles of
1775 May
10: Second Continental Congress meets in
1776 January: Thomas Paine (in
1776 John
Adams publishes Thoughts on Government
(in response to Paine’s omission of any account of what to build in place of
the structure to be torn down), arguing for government by consent and aimed at
the happiness of the people; independence of judiciary; the rule of law:
government by law not men, “an empire of laws and not of men” (in James
Harrington’s phrase); bicameral legislature as guard against usurpation of
popular sovereignty by legislature
1776 May. The 25-year old James Madison represents
1776 July
4: The Declaration of Independence.
(David Hume dies in August.)
1775-1781 The War of
1781 Articles of Confederation ratified by the holdout state,
1783 Treaty of
1786-7 Shays's
Rebellion: armed insurrection against state government by debt-ridden farmers
in
1786
1787 May 25-Sept. 17 The Constitutional Convention meets in
On May 29, Washington recognizes Virginia
Governor Edmund Randolph, who presents the “Virginia Plan,” the work of James
Madison. This plan set out the three separate powers and important structural
features creating a strong national government to replace the Confederation. It
also favors the larger states.
On June 15, William Patterson of New Jersey
presents the “New Jersey Plan,” which favors the smaller states.
The aging Benjamin Franklin bestows his
benign participation, helping to forge the compromises needed. James Madison of Virginia has the most impact, then Alexander
Hamilton of New York and James Wilson (Scottish born) of Pennsylvania.
Oliver Ellsworth and Roger Sherman, both of
1787 Oct. 27, 1787-May 28, 1788 The
Federalist Papers. Alexander Hamilton
decides to publish defenses of the proposed Constitution in newspapers to
influence ratification in
Montesquieu and Madison on Separation of Powers
“In every government there are three sorts of power; the legislative; the executive, in respect to things dependent on the law of nations; and the executive, in regard to things that depend on the civil law.
By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies; establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.
The political liberty of the subject is a tranquility of mind, arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.
There would be an end of every thing were the same man, or the same body, whether of
the nobles or of the people to exercise those three powers that of enacting
laws, that of executing the public resolutions, and that of judging the crimes
or differences of individuals.” Charles de Secondat,
Baron de Montesquieu, The Spirit of the Laws,
vol. 1, trans. Thomas Nugent (London: J. Nourse,
1777), pp. 221-237, passim.
"Power being found by universal experience liable to abuses,
a distribution of it into separate departments, has
become a first principle of free governments. By this contrivance, the portion
entrusted to the same hands being less, there is less room to abuse what is
granted; and the different hands being interested, each in maintaining its own,
there is less opportunity to usurp what is not granted. Hence the merited
praise of governments modelled on a partition of
their powers into legislative, executive, and judiciary, and a repartition of
the legislative into different houses.
The political system of the United States claims still higher
praise. The power delegated by the people is first divided between the general
government and the state governments; each of which is then subdivided into
legislative, executive, and judiciary departments. And as in a single
government these departments are to be kept separate and safe, by a defensive armour for each; so, it is to be hoped, do the two
governments possess each the means of preventing or correcting unconstitutional
encroachments of the other." James Madison, "Government of the United
States," National Gazette, Feb. 6, 1792, in James Madison, Writings,
(New York: The Library of America, 1999), p. 508.
[1] Robert Nozick,
Anarchy, State, and Utopia (New York:
Basic Books,1974).
[2] Nozick, Anarchy, 10-12, 30-33.
[3] Nozick, Anarchy, 161-64.
[4] David Hume, An Enquiry Concerning the Principles of Morals, Tom L. Beauchamp, ed., (Oxford: Clarendon Press, 1998), 20-1 (Section 3, paragraph 26).
[5] Nozick, Anarchy, ix.
[6] Nozick, Anarchy, 28-35.
[7] Nozick, Anarchy, 15-25, 88-119.
[8] Nozick, Anarchy, 153-60.
[9] Nozick, Anarchy, 150-153.
[10] Nozick, Anarchy, 153.
[11] Nozick, Anarchy, 174-178.
[12] Nozick, Anarchy, 175-182.
[13] Nozick, Anarchy, 182.
[14] Nozick, Anarchy, 149-50.
[15] Nozick, Anarchy, 163.
[16] David Hume, A Treatise of Human Nature,
L. A. Selby-Bigge, ed., (Oxford: Oxford University Press,
1888), 483 (T.3.2.1.17).
[17] Annette C. Baier, The Cautious, Jealous Virtue: Hume on Justice (Cambridge, MA.: Harvard University Press, 2010), 83-99.
[18] Hume, Treatise, 492 (T.3.2.2.13).
[19] Hume, Treatise, 522 (T.3.2.5.10).
[20] Hume, Treatise, 523 (T.3.2.5.12).
[21] Hume, Treatise, 538 (T.3.2.7.8).
[22] Ibid.
[23] Baier, Cautious, 80.
[24] Knud Haakonssen, The Science of a
Legislator: The Natural Jurisprudence of David Hume and Adam Smith
(Cambridge: Cambridge University Press, 1981), 38.
[25] Hume, Treatise, 484 (T.3.2.1.19).
[26] Hume, Treatise, 541 (T.3.2.8.3).
[27] Hume, Enquiry, 23 (Section 3, paragraph 35).
[28] Hume, Enquiry, 24-25 (Section 3, paragraph 38-39).
[29] Hume, Treatise, 501-513 (T.3.2.3.1-3.2.3.11).
[30] Hume, Treatise, 515-516 (T. 3.2.4.2).
[31] Hume, Treatise, 528 (T.3.2.6.6).
[32]
Hume, Treatise, 532 (T 3.2.6.9).
[33]
Hume, Treatise, 526 (T 3.2.6.1).
[34] Hume, Treatise, 533 (T 3.2.6.10).
[35] Hume, Treatise, 497 (T.3.2.2.22).
[36] Hume, Enquiry, 97 (Appendix 3, paragraph 5).
And see Jordan Howard Sobel, Walls and Vaults: A Natural
Science of Morals (Virtue Ethics According to David Hume) (Hoboken, N.J.,
John Wiley & Sons, 2009), pp. 227-28.
[37] Hume, Enquiry, 19-21 (Section 3, paragraph 23-27).
[38] Hume, Enquiry, 20 (Section 3, paragraph 25).
[39] Hume, Enquiry, 20-21 (Section 3, paragraph 26)
[40] David Miller, Philosophy and Ideology in Hume’s Political Thought (Oxford:
Clarendon Press, 1981), 66.
[41] Baier, Cautious, 62-63, 85.
[42] Baier, Cautious, 74-76, 81-82, 85.
[43] David Hume, Essays
Moral, Political, and Literary, E. F. Miller, ed., (Indianapolis, IN:
Liberty Fund, 1987), 465-87.
[44] Hume, Enquiry, 13-16 (Section 3, paragraph 1-13).
[45] John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press,
1971) 126-30.
[46] F. A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944).
[47] F. A. Hayek, Law, Legislation, and Liberty, Vol I: Rules and Order (Chicago: University of Chicago Press,, 1973), 22-123.
[48] F.A.Hayek, “The Legal
and Political Philosophy of David Hume,” in Hume:
A Collection of Critical Essays, ed.V. C. Chappell (Garden City, New York: Anchor Books,
1966), 335-60.
[49] Hayek, “Legal and
Political,” 336.
[50] F.A.Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), 397-411.
[51] F.A. Hayek, Law,
Legislation and Liberty, vol. I: Rules and Order (Chicago: University of Chicago Press, 1973),
141-42, and Hayek, Constitution, 306-23.
[52] Hume, Enquiry, 22 (Section 3, paragraph 34).
[53] Hume, Essays, 367.
[54] Hayek, Constitution, 315-16.
[55] Hayek, Constitution, 306-15.
[56] Hayek, Constitution, 143.
[57] Hume, Enquiry, 97 (Appendix 3, paragraph 6).
[58] Hume, Essays, 95.
[59] Hume, Essays, 343.
[60] Hume, Essays, 345.
[61] Edward Soule, “Hume
on Economic Policy and Human Nature,” Hume
Studies 26 (2000): 147; M.G. Marshall, “Luxury, Economic Development, and
Work Motivation: David Hume, Adam Smith, and J. R. McCulloch,” History of Political Economy 32 (2000):
634; Andrew S. Skinner, “David Hume: Principles of Political Economy,” in The Cambridge Companion to Hume, ed.
David Fate Norton (Cambridge: Cambridge University Press, 1993), 223.
[62] Carl Wennerlind, “David
Hume’s Political Philosophy: A Theory of Commercial Modernization,” Hume Studies 28 (2002): 258-59.
[63] Hume, Enquiry, 11 (Section 2, paragraph 18).
[64] Hume, Treatise, 482 (T.3.2.1.14).
[65] Nozick, Anarchy, 169-70.
[66] Ryu Susato, “Hume’s Nuanced Defense of Luxury,” Hume Studies 32 (2006):167-86.
[67] Hume, Essays, 268.