Digressions&Impressions

Foucault, Stigler, Weber, and some pre-history going back to Thomas More, Mandeville, Grouchy and even Spinoza

The cost limitation upon the enforcement of laws would prevent the society from forestalling, detecting, and punishing all offenders, but it would appear that punishments which would be meted out to the guilty could often be increased without using additional resources. The offender is deterred by the expected punishment, which is (as a first approximation) the probability of punishment times the punishment-$100 if the probability of conviction is 1/10 and the fine $1,000. Hence, increasing the punishment would seem always to increase the deterrence. Capital punishment is cheaper than long term imprisonment; and seizure of all the offender's property may not be much more expensive than collecting a more moderate fine.

To escape from this conclusion, Becker introduces as a different limitation on punishment the "social value of the gain to offenders" from the offense. The determination of this social value is not explained, and one is entitled to doubt its usefulness as an explanatory concept: what evidence is there that society sets a positive value upon the utility derived from a murder, rape, or arson? In fact the society has branded the utility derived from such activities as illicit. It may be that in a few offenses some gain to the offender is viewed as a gain to society,' but such social gains seem too infrequent, small, and capricious to put an effective limitation upon the size of punishments.

Instead we take account of another source of limitation of punishment, which arises out of the nature of the supply of offenses. It is no doubt true that the larger the punishment, the smaller will be the expected net utility to the prospective offender from the commission of a given offense. But marginal decisions are made here as in the remainder of life, and the marginal deterrence of heavy punishments could be very small or even negative. If the offender will be executed for a minor assault and for a murder, there is no marginal deterrence to murder. If the thief has his hand cut off for taking five dollars, he had just as well take $5,000. Marginal costs are necessary to marginal deterrence.2 The marginal deterrence to committing small crimes is also distorted if an otherwise appropriate schedule of penalties is doubled or halved. One special aspect of this cost limitation upon enforcement is the need to avoid overenforcement. The enforcement agency could easily apprehend most guilty people of we placed no limits upon the charging and frequent conviction of innocent people. In any real enforcement system, there will in fact be conviction and punishment of some innocent parties, and these miscarriages of justice impose costs of both resources and loss of confidence in the enforcement machinery. The costs of defense of innocent parties, whether borne by themselves or by the state, are part of the costs of enforcement from the social viewpoint. The conviction of innocent persons encourages the crime because it reduces the marginal deterrence to its commission.--Stigler, George J. "The optimum enforcement of laws." Journal of Political Economy 78.3 (1970): 527-528.

Foucault quotes the Stigler (1970) article in the tenth lecture of 21 March 1979 (Birth of Biopolitics, p. 256.) It is quite natural, if you read the editorial apparatus of the Birth of Biopolitics, to think that Foucault may not have read the original source, but that he is relying entirely on Jenny, F. "La théorie économique du crime: une revue de la littérature." Vie et sciences économique 73 (1977): 7-20. The wording of the editorial footnote (18) -- "(Foucault draws on information provided in this article.)" -- is sufficiently ambiguous to give the editors plausible deniability here. But the editors go on to imply it in a later footnote (25) when they tell the readers that "This phrase is not found in Becker’s article. Foucault relies on the synthesis of Becker’s and Stigler’s works provided by Jenny." Foucault's vexed relationship to underlying sources came up in discussion over lunch with Bruce Caldwell and Joel Isaac yesterday.

So, I was pleasantly surprised yesterday when during a hallway conversation Vincent Carret -- yes I am visiting Duke's Center for the history of political economy [hence all the name-dropping] -- informed me that there is a project, Le projet Foucault Fiches de Lecture (FFL), that is collecting and making digitally available many of Foucault's annotations on his readings which he did to prepare his lectures and books. So, when I went to check it out, I thought it made sense to use it as my first foray to see what annotations he had left on Becker and Stigler. While zero annotations would not be decisive -- after all notes get lost and re-used, maybe he relied on others for summaries and checked them against original sources -- it would naturally be taken to reinforce the editors' point.

To give a non-trivial example that a false negative is not decisive: as far as I can tell, there are no annotations on Jenny's article (or the underlying book in which it appeared). Since there are Foucault annotations on papers by Becker (here) and Stigler, that would have made a nice punchline for this digression, but I have other fish to fry!  In addition, the annotations do not seem to be dated, and as far as I can tell [after a few hours of poking around on the website] the project has not yet tried to date the manuscripts. So, I am not going to try to connect Foucault's scribbling to particular passages in the lecture course. (I will leave that to a different kind of scholar.) Foucault read and made a few annotations (see here) on Stigler's "The Optimum Enforcement of Laws." That should be no surprise because Foucault had a deep interest in criminology, and its history, and Becker's and Stigler's work were creating important waves in the field. (I would be amazed if these annotations were written after the Birth of Biopolitics lectures.)

When Stigler wrote the passage I have quoted, Becker may well still have been at Columbia. (Becker returned to Chicago in 1970.) And, at first sight the passage has the aura of a senior scholar setting the young upstart straight on marginal analysis (then exactly a century old), although the real disagreement is to explain the absence of widespread and enormous numbers of capital punishment. For, while Stigler's (and Becker's) project has a normative component (Stigler is explicit about this), it's also meant to do a decent job with the empirical world.

And, in fact, Stigler's analysis ("If the thief has his hand cut off for taking five dollars, he had just as well take $5,000.") echoes pre-marginalist thinking going back to Thomas More (in part I of Utopia [recall this NewAPPS post]), and, as Foucault explicitly notes (repeatedly in the lecture), in the writings of Beccaria and Bentham (and (recall this digression on) Sophie Grouchy). This is why Foucault treats Stigler and Becker as an updated version of Benthamite utilitarianism (although as the reference to More suggests cost-benefit analysis of criminal decision making and how to create rational punishment in light of it precedes Benthamite utilitarianism). 

Now, I want to close with more substantive observations. Foucault himself makes an important point in a passage (which I have quoted in passing before (recall here) in which he explicitly quotes Stigler (1970):

The regulatory principle of penal policy is a simple intervention in the market for crime and in relation to the supply of crime. It is an intervention which will limit the supply of crime solely by a negative demand, the cost of which must obviously never exceed the cost of the supply of the criminality in question. This is the definition that Stigler gives of the objective of a penal policy: “The goal of law enforcement,” he says, “is to achieve a degree of compliance with the rule of prescribed behavior that society believes it can procure while taking account of the fact that enforcement is costly.” This is in the Journal of Political Economy in 1970.30--Foucault 21 March, 1979,  translated by Graham Burchell, Lecture 10, The Birth of Biopolitics, p. 256.*

The 'definition that Stigler gives' is from the first section of the essay labeled 'The Goal of Enforcement.' Stigler returns to the regulatory principle in the final (third) section labeled 'The Enforcement Agency: A Normative Approach.' Some other time I want to discuss how we should think about the normativity involved in Stigler's analysis. Foucault does not remark on it. It's worth nothing that 'Chicago' is by no means the first to think about the role of enforcement costs in law enforcement: Spinoza (in the Theological Political Treatise) and Mandeville (in the Fable) recognize that Amsterdam's practice of tolerating brothels is explicitly shaped by consideration of enforcement costs.

Now, 'the art of government' is the major theme of Birth of Biopolitics. And the phrase (and its cognates) are used repeatedly throughout the lectures. But one peculiarity of the lectures is that the phrase does not occur in the lectures on Chicago economics ('governmentality' does in case you want to play gotcha with me). And this has let commentators, I think, to miss that Chicago school does have an account of the art of government: in Friedman it's called the 'art of economics' (which is recall here and here the phrase he inherits from J.S. Mill and J.N. Keynes) and Stigler with less flair, calls it "advice on policy...[in light of] understanding of the regulatory process" in the introduction to his (1975) Citizen and the State. Now, in Friedman (and Mill, and even Adam Smith) the content of the art of government is articulated in terms of maxims or principles. Foucault echoes this language when he describes Stigler's 1970 in terms of 'regulatory principles.'** 

To put my first important point simply: in the context of the modern administrative state, the liberal art of government, as understood at 'Chicago' is partially codified in terms of regulatory principles that constrain how one should think about the relationship between policy aims and fundamental liberal principles (and constitutional constraints, etc.) in light of experience with the ordinary workings of the democratic political process which is often also a market in political regulation. 

The second point is that Foucault uses 'regulatory principle' as the content of the art of government in the context of the modern administrative state. This is actually confirmed or illustrated in an interview held with him (by folk who are actually confused on this) in a passage that has attracted quite a bit of critical attention (because it involves Foucault's attitude toward consensus politics), where Foucault corrects his interviewers' terminology by saying that 'X is a regulatory principle' always presupposes that X is subject to "governance" and to "be organized." (The Foucault Reader, p. 378)

And lurking here is the most important point often lost in twentieth century debates over markets vs states is that much of neoliberalism, that, as Foucault correctly recognizes, is about -- and Becker and Stigler are explicit about this -- a process of rationalization of the administrative state on liberal principles not its abolition. And so while Foucault repeatedly ties the ORDO liberal approach to Max Weber's shadow, he could have also done so with Chicago (even if Stigler got his Weber through Knight and Talcott Parsons).

 

 

 

On (Lippmann and) Ignorant Voters

The hypothesis, which seems to me the most fertile, is that news and truth are not the same thing, and must be clearly distinguished. The function of news is to signalize an event, the function of truth is to bring to light the hidden facts, to set them into relation with each other, and make a picture of reality on which men can act....For the troubles of the press, like the troubles of representative government, be it territorial or functional, like the troubles of industry, be it capitalist, cooperative, or communist, go back to a common source: to the failure of self-governing people to transcend their casual experience and their prejudice, by inventing, creating, and organizing a machinery of knowledge. It is because they are compelled to act without a reliable picture of the world, that governments, schools, newspapers and churches make such small headway against the more obvious failings of democracy, against violent prejudice, apathy, preference for the curious trivial as against the dull important, and the hunger for sideshows and three legged calves. This is the primary defect of popular government, a defect inherent in its traditions, and all its other defects can, I believe, be traced to this one.--Walter Lippmann (1922) Public Opinion (Chapter 24, 228-230) 

As regular readers know, I think reflection on Walter Lippmann is important in present circumstances. He is one of the intellectual architects (recall) of what I call the second-wave of liberalism (1945-2008), which has been imploding during the last decade, and even was the proximate cause of the development of what came to be known as neo-liberalism. More subtly, his conception of the good society, which hearkens back to the (attractive) kind of liberalism of Adam Smith and Sophie de Grouchy, rejects both state neutrality and state-craft as soul-craft; the good society is one that has many morally salient characteristics (the people are flourishing and can lead lives of their own choosing without fear or coercion). To attain the good society, not unlike a medieval cathedral, is a multi-generational, collective project. There is a sense in which this is a religious project. But, probably unlike the cathedral, the path and the outcome of the good society is, due to the uncertainty generating conditions of modern life, full of surprises. 

One reason to return to Lippmann (not in order to agree -- he also has (recall) serious weaknesses --) is that, as  JohnDewey emphasizes, he understands the problem of voter ignorance not, as anti-democrats do, as a problem of other (not-so-smart or gripped by ideology) voters, but as a structural feature of the human condition. One need not agree with all of Lippmann's ways of articulating the situation, to see that the (Platonic) cave is the human condition in mass society. And to overcome such ignorance, here he anticipates Hanna Arendt, is a rare achievement to be found in, or (perhaps its better to say) produced by, a few institutions:  the law and science.

As an aside, Lippmann, who knew the press from within, is adamant that the press is even during the best of times and ownership structures not that kind of institution capable of reliable generating truth.* And, in fact, he claims that, when the press is conducive, it is often relying on the rule-following features of the administrative state. Importantly, his skepticism about the press' truth-conducive-ness does not entail that the press has no positive contributions to make to democratic life. (If he thought that, his life would be self-undermining in a very obvious ways.)

I do not think Lippmann's answer to the problem of voter ignorance is successful, but it was (judging by what happened next) very influential; and if not influential, at least prophetic. It is possible that by Lippmann's own standards his solution would be deemed successful because Lippmann's aspirations were (again noted by Dewey) were more ameliorative than utopian.  Lippmann's proposal has three central features: first, is to advocate for an expansion of the (meritocratic) bureaucratic state and infuse it with what he calls 'technical knowledge' that he associates with "statisticians, accountants, auditors, industrial counsellors, engineers of many species, scientific managers, personnel administrators, research men, "scientists," and sometimes just as plain private secretaries." (234) He thinks such technical knowledge can also be turned into an "experimental social science." (237)  The point, for Lippmann, is not that such technicians will run the show, but rather that they become embedded (as "permanent intelligence section") in all government apparatuses (nationally and locally). For, by definition, a technician is not the decision maker.+

A key second feature of his proposal is that there will be a permanent circulation of college graduates from universities, perhaps even a privileged 'national university' (247) recruited from government staff, into government; and technical, government bureaucrats returning regularly to train and teach at universities. This intellectual flow of human capital would itself (in part) constitute "political science" and, in turn, would "associated with politics in America."+ (In 1922 economics was not yet seen as the future queen of the social sciences.) Lippmann optimistically assumes that all of this can be done transparently and openly (246).  The third, key feature is to insist that any political decision must be channeled through a procedure that will involve the bringing to bear of technical expertise on a problem (e.g., 255). 

As an aside, Lippmann's account is clearly distinct from the (later) Hayekian narrative, which sees the rise of the bureaucratic, technocratic state as a consequence of the experience of (mobilization and) war-planning during WWI. Lippmann, by contrast, thinks that the rise of the technician in the great society is itself the consequence "of blind natural selection" (234); complex organizations faced with complex decision environments started to require technical expertise merely to help integrate the flow of data and to structure decision-making for the executive. One discerns in Lippmann that the problem of big data is a nineteenth century problem, and that to overcome it even in competitive markets, requires the rise of expertise within organizations.

Now, Lippmann is not unaware that there is a real risk the technocrats will quickly run the show and displace elected officials and electorate. His response to this is to insist on a stark distinction between executive and technical functions and to aim to align incentives between them properly. [242]+ Only this can keep the technician's disinterestedness in place. If such a distinction were to be maintained in practice, and an esprit de corps among the technical class could be cultivated, then his hope that there will be circumstances in which the presence of a class of technicians can even abolish partisanship would not be comical. I don't mean to suggest that Lippmann's proposal is impractical: it very much reflects reality inside important elements of the governance of the EU and the US Federal government. As Dewey discerned, Lippmann proposes what became a tool, even an effective technique of governance one that has undoubtedly helped reduce the catastrophic mistakes all political agents can make.**

I used the word 'comical.' Perhaps that's unfortunate.  For Lippmann's weakness is the weakness of much of twentieth century liberalism. We can discern in Lippmann a tendency toward consensus and de-politicization in thinking about politics. In his (1937) Good Society, he demands that politicians combine, in spirit, the temperament of a legislator and a judge (who is impartial, fair, temperate, etc.) As the earlier Public Opinion teaches, that aspiration would only be possible in reality if political life is not governed by opinion. But if that were possible, we wouldn't (recall) need democracy at all. 

 

 

On Sophie de Grouchy, Use Value, and the Security of Property

For although possession [la possession] may sometimes make something that was once pleasing no longer attractive to us, it is more striking still that in a simple and natural life, possession increases something’s value [le prix]—for it brings together the present and the future, the current pleasures and those derived from reliable expectations [une esperance qui ne sera point trompée].--Sophie de Grouchy (1798) Letters on Sympathy, Letter 5. Translated by Sandrine Bergès.

Yesterday I turned in the proofs for Sophie de Grouchy's Letters on Sympathy: A Critical Engagement with Adam Smith's The Theory of Moral Sentiments (which can be pre-ordered here). During proof-stage all kinds of features may jump out at you that you had hitherto had missed. For example, the quoted passage is taken from a context in which Grouchy discusses the nature of the "pleasure from contributing to others’ happiness." But the point in the quoted sentence is about what Adam Smith would call use-value. In Smith this is contrasted with exchange value. 

Most economists today are not fond of discussing use value distinct from exchange value. They like revealed preference which is mediated by prices. The consequence is that use value is kind of ignored if not outright displaced. But because I just spent a month visiting with the widely read, experimental economists, Vernon Smith and Bart Wilson, who are very interested in the distinction and also focused on the nature of property, the sentence suddenly jumped out to me.*

Grouchy asserts that possession of an entity changes the use value of it. Sometimes (a) possession makes makes the use of it less valuable to us, but  (b) most of the time it makes it more valuable to us. Grouchy has little to say about (a). But we are all familiar with the phenomenon that some toys we/our kids initially adore playing with, but after time, interest is lost in them. That Grouchy has nothing to say about (a) is unfortunate because one would like to have a firm distinction between (a) and (b). One way to capture the distinction by definition is to call (b) a durable good, and (a) a non-durable good. It's possible that (a) and (b) are person relative, but for now I ignore that.   

A key feature of (b) is that possession adds value to the use of the good. We may even say that it is added beyond the actual deployment/consumption of the good. The nature of the value added is made explicit by Grouchy: we can form reliable expectations around it. This is a distinct benefit. It means that other things being equal, one is secure against certain down-side risk (i.e., the inability to use the good again). 

The benefit is, in part, psychological. In the French, Grouchy says this literally: possession generates "a hope that will not be deceived." That is, the use value of some X may be different depending on whether, say, one owns or rents it and one's attitude toward future use. 

Now, being able to form reliable expectations is a key feature of the origin (a) property (right) for Grouchy. In her core example explaining thus (in Letter 6) in the state of nature the initial, cultivation of a field is only useful if and only if one has an expectation to the harvest. (I have analyzed this here.) And the initial right to property secures this consequence for Grouchy.+ So, the point is not that one received a right to property in virtue of mixing labor, but rather that the labor wouldn't be sensible/intelligible if one couldn't rely on being able to keep it. To what degree this is persuasive I ignore for the present purpose. So, Grouchy's comments in Letter 5 hook up with rather fundamental features of her political philosophy.**

There are more important points here (again I am indebted to Vernon Smith): possessions are themselves a means toward coping with down side risk. The loss of a $100 bill is a big deal if you lack wealth; it's merely annoying if you are a billionaire. In The Theory of Moral Sentiments (which Grouchy had translated) Smith captures the interplay between possession and down-side risk in terms of security and prudence:   

We suffer more, it has already been observed, i when we fall from a better to a worse situation, than we ever enjoy when we rise from a worse to a better. Security, therefore, is the first and the principal object of prudence. It is averse to expose our health, our fortune, our rank, or reputation, to any sort of hazard. It is rather cautious than enterprising, and more anxious to preserve the advantages which we already possess, than forward to prompt us to the acquisition of still greater advantages. The methods of improving our fortune, which it principally recommends to us, are those which expose to no loss or hazard; real knowledge and skill in our trade or profession, assiduity and industry in the exercise of it, frugality, and even some degree of parsimony, in all our expenses.

It's easy to treat prudence as Scottish frugality. But the key point is that prudence is associated with avoidance even elimination of downside risk (exposure "to no loss or hazard"). Such security is the main aim of prudence. As Grouchy notes possession is a means by which such security is extended from the present into the future. 

So the (marginal) use value attached to possession of a durable good (or savings) adds value to the good because it provides a kind of psychological calm about being able to use it in the future. In addition, it makes it possible to prevent or be less hindered by small losses. 

Let me close with two observations. First, of course, there may be costs or foregone opportunities attached to possession, and these may be non-trivial. So, I am not claiming that the use value of possession is always worth the opportunity costs. (I am not sure what Grouchy would have to say about this.) Second, the institutions that secure property may, thus, have use values that are not properly priced into the exchange values of these possessions. (The regime of property rights may also have effects unrelated to the use values (and exchange values.)) This second point, I think helps explain one reason why Grouchy thought it would be good that given a system of property rights, it would be good to create incentives such that everybody had some property. But that's for another occasion.

 

 

 

Mencius in the late Enlightenment (Sophie de Grouchy & Adam Smith)

First, we are clearly moved to concern ourselves with others’ troubles so we can relieve them. This desire acts in us without any thought as to whether it is possible to contribute to this relief and before we have had time to see whether it will ever be possible to do so. It is this desire which, when we see a man struggling in the water and about to be swallowed up by it, causes spectators on the shore to reach out with their arms to him with urgency, a sublime movement of nature, which shows in an instant all the power of humanity over our hearts and also all the consequences a legislator could derive from that sentiment, more often weakened than strengthened by our institutions.--Sophie de Grouchy (1798) Letters on Sympathy, Letter 2. Translated by Sandrine Bergès.'

There is a strain of argument in Grouchy, indebted to Mandeville and Rousseau, where she emphasizes the pleasure we feel when we benefit others(e.g, in Letter 6, she writes, "individual ideas of justice are linked to the feeling of pleasure or pain when we benefit or harm others”) And there is also a consequentialist streak in here account of sympathy (e.g, in Letter 4, she writes “we feel sympathy for physical pains and pleasures in proportion to our understanding of their strengths and consequences.") But in the quoted passage, the point is to claim that sometimes we are naturally moved to unthinking compassion. The 'moved' here is also literal ("reach out with their arms.") Such unmediated and immediate compassion is evidence of our natural humanity,

Grouchy's point is not just moral psychological, but also political: we can organize the institutions of society to strengthen our natural compassion or undermine it. Quite clearly Grouchy thinks that institutions and their incentives should be so designed that they cultivate our natural compassion, and that they draw upon them to generate good consequences. The point is not just left abstract; her reformist account of the legal system (recall here, here, here) draws on this would-be-mechanism.

Now, the original reader of Grouchy's Letters, would have encountered this passage after reading, perhaps, her translation of The Theory of Moral Sentiments (to which the Letters were added as an appendix). That book starts by calling attention to the very same mechanism:

When we see a stroke aimed and just ready to fall upon the leg or arm of another person, we naturally shrink and draw back our own leg or our own arm; and when it does fall, we feel it in some measure, and are hurt by it as well as the sufferer. The mob, when they are gazing at a dancer on the slack rope, naturally writhe and twist and balance their own bodies, as they see him do, and as they feel that they themselves must do if in his situation. 

But what is notable is that in discussing this passage, Smith does not make the claim that this is evidence of our natural compassion or common humanity; nor does he use it to claim that the legislator should design institutions in light of our natural (unmediated) compassion or use these institutions to the strengthen them. This is not to deny that these are Smithian themes, but one has to work at deriving them from Smith.

However, Grouchy's thought experiment evokes a passage in another famous moral psychologist, Mencius:

The reason why I say that humans all have hearts that are not unfeeling coward others is this. Suppose someone suddenly saw a child about to fall into a well: everyone in such a situation would have a feeling of alarm and compassion-not because one sought to get in good with the child's parents, not because one wanted fame among their neighbors and friends, and not because one would dislike the sound of the child's cries. "From this we can see that if one is without the heart of compassion, one is not a human." Mencius, 2A6, Translated by Bryan W. Van Norden

For Mencius it is constitutive of humanity that we feel immediate and unmediated compassion to others in direct need. For him such compassion is constitutive of our humanity. Were such compassion absent, we can point to social causes, that is, bad governance that have corrupted our (naturally good xing shan 性善) human nature. (Regular readers know, recall, I admire Mencius' philosophy because it prevents status quo bias and victim blaming.)

Clearly Grouchy's thought experiment is not identical to Mencius'; she uses a drowning adult and not a child. And she adds the physical reaching out which is absent in Mencius. Even so, we may say that the underlying points are sympathetically attuned to each other. 

I have no evidence that Grouchy read Mencius. But the passage was familiar in a translation and discussion of the Jesuit Jean-Baptiste Du Halde, who mentions it in his (1735) Description géographique, historique, chronologique, politique, et physique de l'empire de la Chine et de la Tartarie chinoise, enrichie de cartes générales et particuli`eres de ces pays, de la carte générale & des cartes particulieres du Thibet & de la Corée. The book was very popular in Europe during the Eighteenth century, Du Halde had not visite China himself, but he created a standard summary of a century and a half of Jesuit discovery in China (recall this post for some of the significance of this).

There is lurking here a crucial connection to Adam Smith. As my friend, Ryan Hanley, first taught me the status of China was of crucial importance to Smith's political economy. And, in fact, Smith sometimes alludes to knowledge of  Du Halde in the Wealth of Nations (see here; and here). 

 

 

 

On the Civilized vs Savages, reconsidered.

Is it possible, without shuddering with horror, to read in history of the barbarous and useless torments that were coolly invented and executed by men who were called sages? Who does not tremble at the thoughts of thousands of wretches, whom their misery, either caused or tolerated by the laws which favoured the few and outraged the many, had forced in despair to return to a state of nature; or accused of impossible crimes, the fabric of ignorance and superstition; or guilty only of having been faithful to their own principles; who, I say, can, without horror, think of their being torn to pieces with slow and studied barbarity, by men endowed with the same passions and the same feelings? A delightful spectacle to a fanatic multitude!...

The punishment of death is pernicious to soci­ety, from the example of barbarity it affords. If the passions, or necessity of war, have taught men to shed the blood of their follow creatures, the laws which are intended to moderate the ferocity of mankind, should not increase it by examples if barbarity, the more horrible, as this punish­ment is usually attended with formal pngeantry. Is it not absurd, that the laws, which detect and punish homicide, should, in order to prevent mur­der, publicly commit murder themselves? Cesare Bonesana di Beccaria [1764] An Essay on Crimes and Punishment (96-97 & 104-105).

I had seen the name Beccaria mentioned in the context of predecessors to Bentham's utilitarianism and legal reform. And I recalled (with the help of Google) that in Discipline and Punishment, Foucault mentioned him as an exemplar of the advocate of a new political economy of punishment (more efficient, but also more unbounded, etc.); in fact, Foucault uses the very same passage I quote above to treat Beccaria as an advocate of the 'principle of moderation.' I had never read his Essay. But because I am preparing (with Sandrine Berges) an edition of Sophie de Grouchy's Letters on Sympathy, which offers a program of legal and penal reform, I decided to read Beccaria. His writing is forceful, with a vigorous sense of outrage and drama; rather than focusing on legal minutiae, he writes in the vernacular of an eighteenth century philosophe, who is clearly familiar with Hobbes, Montesquieu, Helvetius, Diderot, and if not Hume then Condillac or Adam Smith.  So, one is constantly hearing echoes of works already familiar, but applied and given vivacity, if I may, to urgent and existential matters of life and death.

The passages above are parts of his attacks on torture and the death penalty. (Amongst other things, he is also against anonymous accusations, and he favors a clear separation between judge and state prosecutor.) He is uncompromising against torture. And the only exception he grudgingly grants is one during the state of emergency: "it can only be necessary when a nation is on the verge of recovering or losing its liberty; or in times of absolute anarchy, when the disorders themselves hold the place of laws." (It's grudging because he relentlessly focuses on likely abuses of any law.)

As an aside, and to forestall misunderstanding, Beccaria's point is not to promote quiet, capital punishment without spectacle. For such punishment would defeat the purpose of punishment which is almost entirely meant to deter other people's future crimes. And so any punishment needs to be visible to the rest of society. This leads him, in fact, to justify a form of imprisonment that he (quite rightly) calls slavery--the prisoner needs to be seen to work. (His moral psychology justifying this is clearly indebted to Hume or a Humean.) 

Now, as regular readers know I am rather ambivalent (see here), and often opposed to the savage/barbarous vs civilized distinction. Historically, it helps justify colonial projects (from Ireland to the rest of the world) in terms of a paternalistic and violent extension of civilization.The distinction is not merely of historical interest: to this day it is re-activated by moralists to help justify belligerent acts against (let's stipulate for the sake of argument, hostile) 'non-western' forces.* 

For Beccaria, there are two kinds of savage/barbarous conditions. One is the state of nature, which he sometimes calls 'anarchy' or 'state of independence.' For him we escape the state of nature by being under authority of tolerable law or by way of contract. The conditions of this social contract deviate interestingly from Hobbes's account (which clearly inspired it)--about which some other time more. But, and this is the second kind of barbarism, a lot of existing or past states are de facto wholly barbarous or partially barbarous/savage. So, for example, while there are clear, non-trivial republican strains in his thought, he writes about the "Romans" (while praising them for their abhorrence of torturing citizens), that they were "in many respects barbarous, and whose savage virtue has been too much admired." (59)

That is to say, in Beccaria's hands the opposition between barbarism vs (law-governed) civilization is brought home and applied to Europe. And Europe comes out looking very barbarous which incentivizes criminals to become more violent and criminal and, thereby, (note the first passage above) returns to the state of nature. (So, for Beccaria, the state of nature is, as Spinoza suggests, possible within advanced society.) This, in turn, only benefits rulers who can justify further repression and savagery (etc.)

In fact, incentives are crucial to his general approach. I'll offer two examples of this: first, in his treatment of credibility of evidence, he writes: "the credibility of his evidence will be in proportion as he is interested in declar­ing or concealing the truth. Hence it appears,  how frivolous is the reasoning of those, who reject the testimony of women on account of their weakness; how puerile it is, not to admit the evidence of those who are under sentence of death, because they are dead in law; and how irrational, to exclude persons branded with infamy: for in all these cases they ought to be credited, when they have no interest in giving false testimony." (48) Witnesses are crucial to his general penal reform because he attacks oaths, torture, and duels as means toward establishing the truth in law-courts. The inclusion of women as credible witnesses is especially notable, because in general Beccaria is a defender of a modernized patriarchy. By this I mean, that he uses republican and social contract reasoning to attack the paternal tyranny over the household in order to create masculine equality (which excludes women).**

Second, there is a passage, that echoes an extremely familiar Machiavellian trope adopted by a whole variety of eighteenth century writers from Hume to Madison (recall Hirschman [who misses, I think, the significance of Beccaria]), "by opposing one passion to another, and opinion to opinion, a wise legislator puts an end to the admiration of the populace." (84)

Let me wrap up. Beccaria holds up a mirror to his European readers, who think of themselves as progressive, embracing mathematical sciences, and enlightened. What he shows is savage barbarism. But unlike say, Swift or Sade, he does so not to undermine the self-conception of the project of enlightened humanity (in different ways), but to encourage his readers to adopt reforms that may help the mirrored reality live up to its professed ideals.  

 

On the Female Gaze (De Grouchy on Demagogues)

When we see a man for the first time, we observe his features, we search them for his soul. If his face has any charm or beauty at all, even if it is only distinguished by some singularity or other, we study it carefully, attempting to grasp the impressions that cross it, and to tease out those that habitually do so. There is no one whose character we cannot guess at least a little from the first sight of a face, enough that we may draw some conclusion, favorable or not, about it. Soon, the impression made by a person’s physiognomy is enhanced, altered or undone by their movements, manners, words, or by whether their words agree or not with their actions. If in the eyes, which betray the soul, or the voice, which modulates it, the physiognomy, which tells of its habits, and the manners which reveal them, we think we find a character, or the signs of some quality that particularly interest us – either because they are like ours, or because they are amongst those we most highly approve of, or because together they strike us as extraordinary and engaging – then a feeling of benevolence rises in us towards the person who seems thus gifted. We feel drawn to him, we enjoy thinking about him, and the interest we feel intensifies our observations, and increases their accuracy. Sometimes, yet, this first impression is so strong as to confuse us, and it takes over our capacity to observe. In lively souls, the effect of such an impression is to give rise to prejudices that blind them, rendering them incapable of right and sometimes even reasonable judgment.--Sophie de Grouchy, Letters on Sympathy, Translated by Sandrine Berges (forthcoming),* Letter 3 (see here for a French version).

In  context of this section of the Letters, De Grouchy is discussing (among other things) the problem of tragedy which exercised many philosophers in the eighteenth century (see Dadlez's very useful introduction). In the quoted passage, De Grouchy adopts the first person plural perspective. It is not entirely clear who is included in this 'we.' As the title of this post suggests, I want to suggest that De Grouchy is articulating something like the (hetero-)female gaze.

In the first sentence of the Letters, De Grouchy speaks in her own authorial-persona voice (first person singular): It seems to me that man [L'homme] has no more interesting object of meditation than himself. If the sentence is read sarcastically (and feministically), (such that L'homme is not 'mankind' but MAN) then she accuses (intellectual type of) men of a species of narcissism. (The sentence has an implied addressee, 'C'--generally thought to be Cabanis, De Grouchy's brother-in-law and a famous physician, and so one wonders how he took it.) If the sentence is read straight up (and a generic claim about mankind) she shows her anti-theistic hand (which shows up throughout the Letters), in which our study is rightfully oriented toward man (not God) and this life (not the afterlife).

The first person plural voice is introduced in the second sentence of the Letters: Is there, indeed, a more fulfilling and pleasant way to pass the time than to turn one’s soul onto itself, study its operations, trace its movements; to employ our faculties to observe and puzzle each other out and to seek out and understand the fleeting and secret laws that guide our intelligence and our sensibility. Here the first person plural seems to be describing a generic experience common to all of us.** Now, this enterprise of self-knowledge, which is about the discovery of hidden laws of (human) nature, includes non trivially  (in an age when women are not assumed to be philosophers) women.

During most of the Letters, the first person plural describes such generic common experience and it is pretty irrelevant if this experience is gendered or not. But, it's not too much of a stretch to say that in the quoted passage articulates a version of what we may call (pretentiously and essentializing -- with all the problems this entails) the female gaze. In fact, she describes what's it like to be infatuated ("this first impression is so strong as to confuse us, and it takes over our capacity to observe.") As she puts it in the next paragraph (from the quoted above): When we see in a man the promise of qualities that please us, we feel drawn to him.

I don't mean to belittle the passage by calling it the female gaze (or to suggest that according to De Grouchy only women have the female gaze.) De Grouchy's text leads the reader to see an analogy between infatuation of a pretty man and being under the sway of a demagogue (a topic that becomes central later in Letter 4, recall here). For, a few pages before she had already had introduced her political interest in the attraction of public spectacles, "which leads the crowds to gather constantly around scaffolds, and to witness there sometimes, in all their horrors, tortures which, nearly always, bring them to tears? The human heart is, in some ways, drawn to what moves and stirs it."

Now, I don't mean to suggest that De Grouchy is the first to articulate the female gaze from within. (I am not an expert on such matters, but I suspect we need to go back to at least Sappho.) But she is notable for articulating the female gaze within a clearly philosophical treatise that itself is not aimed at belittling women's experience.*** (Again, I am not claiming she is the first to do so, but I do welcome learning of other, earlier instances!)

While De Grouchy is clear that there are potential bad consequences of the female gaze, she does not dwell on them. Rather, she goes on to treat the infatuation stage as a path toward moral education into necessary friendship+ and its good political consequences (her main topic):

This is because once alert to the possibility of those qualities, we long for all the rewards we implicitly associate with them. Thus, a necessary effect of the most basic and the least reflective kind of self-love is that we love those whose opinion conforms with ours and who thereby raise in our own eyes the value we attach to our own judgment, and reassure us that we are not mistaken. Similarly those who recommend themselves to us by their virtue, their humanity and their charity interest us either because their memory brings help and support to our plans or projects, or because the very idea of the good they have done or might yet do renews in us the emotion usually produced by the sight or anticipation of public happiness, or the relief of private unhappiness.

This leads her to deviate strongly from Hume and Smith and offer a positive account of enthusiasm+ (about which another time more). Contrary to first appearances, perhaps, De Grouchy does not assume that infatuation will always lead to the moralized and humane friendship. Her larger argument requires the existence of proper institutions that make possible the proper cultivation of our feelings both in us qua excitable individuals as well as in us as qua members of a would be mob (who enjoy the frisson of political action and delusion).

 

 

Dennett's Faustian Bargain, revisited

For several years, I have been posing the following choice for my fellow philosophers: if Mephistopheles offered you the following two options, which would you choose?

(A) You solve the major philosophical problem of your choice so conclusively that there is nothing left to say (thanks to you, part of the field closes down forever, and you get a footnote in history).

(B) You write a book of such tantalizing perplexity and controversy that it stays on the required reading list for centuries to come. 

Some philosophers reluctantly admit that they would have to go for option (B). If they had to choose, they would rather be read than right. Like composers, poets, novelists, and other creators in the arts, they tend to want their work to be experienced, over and over, by millions (billions, if possible!). But they are also tugged in the direction of the scientists’ quest. After all, philosophers are supposed to be trying to get at the truth.

When I have presented the same Faustian bargain to scientists they tend to opt for (A) without any hesitation—it’s a no-brainer for them.--Daniel C. Dennett (2013) “A Faustian Bargain” Intuition Pumps And Other Tools for Thinking, p. 411.+

Daniel Dennet was one of my undergraduate teachers, and I am pretty sure I heard him try out versions of the “Faustian Bargain” on visiting scholars. (In his book, Intuition Pumps, he describes further variants.) I mention this because at some point, while I was completing my dissertation, I articulated a descendant of the Bargain that I have tried out on some fellow historians of philosophy. It goes something like this:

(A*) You conclusively settle all interpretive problems about the relationship between the infinite and finite in Spinoza’s metaphysics (like Descartes's Circle a notorious problem) such that there is nothing left to say (thanks to you, Spinoza becomes easy, and you get a footnote in history).

(B*) You generate interest in a previously overlooked text so that it (not you) gets on the required reading list for centuries to come.   

Most scholars happily and promptly settle for (A*); that’s what we are trained to aim at. The spirit of contemporary scholarship in the history of philosophy has its origins (mediated via Quentin Skinner, perhaps) in Germanic Wissenschaft, after all. But a few respondents are, after some hesitation, tempted by (B*). For, ever since some professional philosophical historians of philosophy started to read canonical works in context, it was likely they would stumble across texts that might seem candidates for (B*). And while getting the past right is a non-trivial task, doing justice to the past and thereby shaping a better future is nobler yet.

Moreover, (B*) is also a near-self-less-act; in it one is the nearly anonymous hand-maiden to another's success. Even if it is motivated (one concludes after reading Nietzsche) by a strange kind of desire for revenge or (echoing Walter Benjamin) by a desire to speak for history's losers, it remains the case that one uses one's skill and judgment to make somebody else's previously overlooked views, insights, or arguments available for discussion. Of course, plenty of scholars are motivated by the true and the good, and (B*) might be one way to promote these. Even so, there is also something quixotic about (B*) because it is so unlikely to succeed. After reflecting on canon-formation throughout history, I suspect that enduring novelty is introduced into the curriculum and people's reading habits not by the conjoined efforts of scholars, but by the ideological and curricular needs of history's proverbial winners who write and rewrite the past to give their own commitments an air of inevitability, the so-called (to adopt a fine phrase by Michael Kremer) 'royal road to me' (recall).

On the Dangers of Philosophy: a Note on Constant's Two Liberties

[W]e can no longer enjoy the liberty of the ancients, which consisted in an active and constant participation in collective power. Our freedom must consist of peaceful enjoyment and private independence.--B. Constant

The main point of Benjamin Constant's (1819) essay-lecture (recall pre-history), "The Liberty of Ancients Compared with that of Moderns," is a criticism of the earlier "noble and generous" generation of French revolutionaries (of 1789); the criticism is not that they were violent, sacrilegious, or failed to obey tradition. Rather, his criticism is two-fold: the more obvious first criticism is that they did not understand the "spirit" of their own times and thereby misapplied the wrong political philosophy to their own situation. They thereby aimed at a form of freedom that is incompatible with the kind of society French was becoming in the late eighteenth and early nineteenth century. For, Constant is a certain kind of historicist about freedom. The less obvious obvious -- and largely ignored -- second criticism is that these revolutionaries, due to a faulty (but "necessary") education, relied on theories developed by philosophers (Rousseau and Mably) that failed to grasp properly the relationship between their own theories and the social world they inhabited. The two points are connected: because of such mismatch these disinterested and humane philosophers unintentionally made "fashionable" lapsed ideas and thereby "furnished deadly pretexts for more than one kind of tyranny." A better philosophy could have helped design beter social institutions: "Free institutions, resting upon the knowledge of the spirit of the age, could have survived."

The second point is notable because Constant is willing to criticize Rousseau for consequences of his theorizing that were not intended (see my musings on the "Socratic Problem"). It is as if Constant applies to Rousseau a rhetorical precautionary principle: do not promote ideas that can be a pretext for tyranny.  That is to say, Constant takes seriously the possible influence of philosophy on society and views it as legitimate criterion for judging another philosopher. I think Constant is right about this. But, in this essay, Constant  does not wrestle with the question if such a pretext is only a consequence of flawed theorizing or also a consequence of theorizing that tracks social reality; he also does not ask to what degree we ought to be held accountable for the social consequences of our philosophical activity even if we made no error.+

On the first point, it is worth asking, what is a "spirit of the age" and what would be knowledge of it? Constant thinks that security from attack (due to relative geographic proximity, population-size) is a key factor in a society's organization. According to Constant the (Greek and Roman) Ancients were focused on permanent warfare (due to lack of security). This focus on war entailed a fundamental division of labor: a free and leisurely warrior class and enslaved working class.  (Constant allows that there are exceptions to the generalization.) If war defined the "spirit" of Greeks and Romans , then this "spirit" gives raise both to (i) a fundamental, spirit-relative human need (including a variety of liberty), and (ii) influences even the "customs, habits, [and] way of trading with others," that is "their commerce was itself impregnated by the spirit of the age, by the atmosphere of war and hostility which surrounded it." The two (i-ii) are connected as follows:

the liberty we need is different from that of the ancients, it needs a different organization from the one which would suit ancient liberty...in the kind of liberty of which we are capable, the more the exercise of political rights leaves us the time for our private interests, the more precious will liberty be to us.

Two Concepts of Liberty, and the forgotten Sophie de Grouchy

The standard source of the distinction between two senses of “liberty” is a speech in 1819 by the great political theorist Benjamin Constant. The first, “the liberty of the ancients,” consists in having a voice into the policies and representatives that govern us. The second, “the liberty of the moderns,” is the right to pursue our private interests free from state oversight or control. "Is the United States a ‘Racial Democracy’?" (New York Times, Opinionator),  JASON STANLEY and VESLA WEAVER.

Stanley and Weaver, treat these as "two different aspects of the conception of liberty at the heart of American democracy, rather than distinct concepts."So, throughout their piece (recall my comment), they rely on the distinction between, on the one hand, two "senses" or "notions" or "aspects" of liberty, and, on the other hand, the one "conception" of liberty. In their hands, liberty as such can be removed; and a system of laws can be unworthy of liberty.

I started reflecting on Stanley and Weaver's tacit distinction because I was surprised that while mentioning Constant they did not mention Isaiah Berlin, the twentieth century thinker  responsible for revival of interest in Constant and his distinction. When I turned to Berlin's famous essay, Two Concepts of Liberty, and looked for the famous passage on Constant, the distance between Stanley and Weaver and Berlin (and Constant) become transparent at once. Berlin writes, "No one saw the conflict between the two types of liberty better, or expressed it more clearly than Benjamin Constant" For Berlin (and Constant), if liberty were one it would be in constant tension with itself. Stanley and Weaver are liberty-monists, while Berlin is a Liberty-dualist (or -- if we read him as allowing even more concepts -- even a Liberty-pluralist).