In civilized life, law floats in a sea of ethics.
- Earl Warren
“Omnes legum servi sumus ut liberi esse possimus.” “We are servants of the law so that we can be free.” Cicero spoke these words in Pro Cluentio, a defense of Aulus Cluentius Habitus Minor against charges of poisoning his stepfather,in 66 B.C. A terse and enigmatic statement, it is one the most succinct explanations of the relationship between the virtue of commutative justice, the rule of law, and liberty. Prima facie, Cicero’s words are almost a glaring contradiction. Rather than nonsense, though, what we find is a sentence encapsulating the essence of law for ensuring people’s freedom in society because it restricts people’s actions in a predictable manners.
Liberty and obedience to commutative justice are two sides of the same coin. One side is what commutative justice demands from a person, that is obedience, and the other side is what it promises him, liberty. In social life, we are all therefore perfectly free insofar as we are all servants of the law.
I) Justice is a virtue, not just an abstract entity unattached to singular human actions.
Justice, and commutative justice in particular are not just abstract entities existing at the level of society alone. Instead, they are both virtues which are practiced by people each and every day even in the most trifling of circumstances. Justice is practiced day in and day out by people living with harmony with those around them, and so the question of a just society can largely be distilled into a question of whether a society is conducive to the virtue of justice, and whether people are, in the words of Cicero, “servants of the law.”
There is a reason that philosophers like Adam Smith and St. Thomas Aquinas have described justice as a virtue. Just as commutative justice is a social grammar which we can understand by looking at people’s interactions within society, so too it is a virtue which sets by which we can measure and judge other people’s actions. Is someone just? That is a question we can answer by looking at their habits, and whether those habits correspond to commutative justice. Whether people have the virtue of commutative justice can, in turn, be seen as a question of whether they do not mess with other people’s stuff.
Every human action can have multiple goals, the virtues serve to condition human action into striving towards certain goals in a habitual fashion. In his discussion of virtue in the Summa Theologiae, St. Thomas Aquinas wrote about how the virtues incline human beings to their proper actions: “But the rational powers, which are proper to man, are not determinate to one particular action, but are inclined indifferently to many: and they are determinant to acts by means of habits…” (Aquinas ST, Ia-IIae 55.1). Aquinas further described virtue as “an operative habit, is a good habit, productive of good works” (Aquinas ST, Ia-IIae 55.3). The virtues are those habits which incline people towards proper actions
Even though its fruits ensure that people have their liberty, (Commutative) justice is a virtue which restricts a person’s degrees of freedom in their behavior. A just person is a person obedient to the injunctions of commutative justice, and thus could be considered less free than someone who did not have any regard for those rules. However, if there is going to be perfect liberty in a society, then it’s members must have the virtue of (commutative) justice. Becoming a “servant of the law,” as Cicero expressed it, is a matter of having the virtue of commutative justice.
Overall, even though institutions may certainly do much to ensure justice, the question of whether a society is just is first and foremost a question of whether there is the virtue of justice in a society. While institutions can do much to ensure justice while that virtue fails, institutions themselves cannot ensure justice, and they cannot operate where people do not think of them as legitimate. Even the question of whether there are institutions that ensure commutative justice
II) Commutative Justice is not messing with other people’s stuff, and liberty is other people not messing with our own stuff.
Put crudely but effectively, commutative justice is not messing with other people’s stuff. We can talk about it in more glamorous terms as abstaining from another’s, as Adam Smith puts it in The Theory of Moral Sentiments. Nevertheless, the cruder expression viscerally cuts to the heart of the meaning of commutative justice: There’s a line between my stuff and yours, do not cross it! The virtue of commutative justice enables human beings to enter society knowing, because of their confidence that their persons and their property are secure.
I prefer talk in terms of commutative justice to talk in terms of property titles. The reason is that commutative highlights both the social aspect of property titles as an outcome of human interaction as well as provides a richer context for understanding property titles in context of. After all, the creation and preservation of property titles requires simply more than the existence of property titles in written law. They require a social ecosystem, made possible by the virtue of (commutative) justice, which ensures that people respect the injunction not to mess with other people’s stuff.
Reliable property titles are only an outcome of commutative justice. The virtue needs to be there before that outcome can be observed, one reason why simply legislating property titles into existence without any concern for the underlying culture is bound to fail. What matters more for a society in the long run, in the historical perspective, is not whether there are property titles, but whether the virtue of commutative justice, is prevalent. That is turn is a sine qua non for there being reliable property titles.
Commutative justice ensures liberty by providing each person with a protected private sphere, demarcated by their stuff, which ensures that they are protected against other people’s coercion. The essence of coercion is the replacement of one persons’s hopes and ambitions with another’s. It manifests itself when a person imposes their will upon another. Commutative justice protects against coercion by providing each person a space demarcated by their person and property which no other equal can step in without her consent. It is a grammar, a set of rules admitting of no exception or modification (Smith TMS, II.6.11), which ensures that people within society are treated with respect as an equal whose own ends are legitimate in the eyes of society.
III) Liberty can only be achieved if everyone obeys commutative justice, and therefore necessarily involves social interaction. The virtue of commutative justice is singular, but the rule of law is emergent.
The rule of law, the rule of laws not of men, is an emergent outcome of a society of people perfectly obeying the virtue of (commutative) justice since the law is an outcome of everybody’s virtue rather than a single person’s dictates, and, without that need for a single person’s dictates, the virtue of (commutative) justice alone determines the interaction of people within society. The rule of law is the outcome of a society in which the people who constitute that society are all obedient to the injunction of the virtue of commutative justice not to mess with other people’s stuff.
When we think about freedom as being able to do what one wants (which is certainly a way the word is used in common language), then the virtues restrict human freedom. By being commutatively just, we are restricting ourselves not to mess with other people’s stuff. Indeed, the tyrant and the thief, in their violations of commutative justice, could be said to be more free than the virtuous citizen and the man of public spirit. However, the tyrant and the thief are only more free because they are intruding upon the freedom of others. For people to be protected against the interference of others and to be confident in their liberty, other people in a society must restrict themselves by adopting the virtue of commutative justice even though that virtue restricts the degrees of freedom a person enjoys in his behavior.
Commutative justice is not a cosmic constant; instead, it is a cultural innovation which human beings have learned in order to cope with the problems of social life. When human beings live in close proximity of one another, problems of conflict emerge because of the disparate ends which people seek in their own lives, and the various disagreements which occur in the course of social existence.
The rule of law can then be understood as the emergent outcomes of human interactions directed by the virtue of (commutative) justice. It is an emergent outcomes because it cannot be understood by looking at the actions of only one person; rather, it is only once the greater choreography of society, with its many interacting components, comes into view that we can see what commutative justice actually is. By establishing a line beyond which each is free to pursue their own desire, property titles ensure that people of disparate ends can cooperate peacefully in society, and that no one will be made, against their will, another’s mean towards ends they have no say over.
That commutative justice is necessarily social is illustrated by its meaningless outside of the context of human interactions. Take Robinson Crusoe: Any notion of commutative justice would be alien to him, surviving alone upon a deserted island. Alone upon his island, he does not have to deal with the problems of living in close proximity with other people. The injunction not to mess with other people’s stuff is meaningless to him. He has no need for such things as the rule of law, and has no need to constrain his actions according to its dictates. Crusoe may do as he pleases because there is no other human being with whom he can have a conflict of ends with. Just as he has no use for the concept of society, he has no use of the concept of commutative justice.
In a meaningful way, Robinson Crusoe could be said to be freer than the citizens of the most liberal nation imaginable because Crusoe does not have to obey commutative justice. People tend to want to be able to judge each situation on its own, and to act unobstructed by any general principle Commutative justice gives people no such opportunity. By being just, people are bound to not mess with other people’s stuff, and as Adam Smith writes in The Theory of Moral Sentiments: “The rules of justice are accurate in the highest degree, and admit of no exceptions or modifications” (Smith TMS, III.6.10). The man living in society has to obey this social grammar in order to live in harmony with his fellow human beings. Otherwise, he cannot live with the expectation that he will be protected from the coercion of those around him.
Crusoe, though, is no way constrained by the demands of those around him, and he can therefore do whatever he pleases without a concern for them. Crusoe, though, does not have to deal with all the problems of social existence which commutative justice, and the rule of law are meant to alleviate. Just as Crusoe does not have to deal upon the restrictions upon the degrees of freedom in his actions which commutative justice would impose upon him, he does not deal with the threats to his freedom which conflict with other people could have, and which commutative justice alleviates.
Here we can understand the thrust of Cicero’s saying that “We are servants of the law so that we can be free.” Each person must constrain his own behavior according to the grammar of commutative justice if there is to be perfect liberty in a society. By obeying that grammar, they all become servants of the law, and they are all free because they can be confident that others will be obeying the same virtue.
Conclusion
In the end, the perfect maintenance of liberty requires that each person voluntarily accept the injunction of commutative justice not to mess with other people’s stuff. Liberty and obligation, albeit obligation to a virtue rather than a person’s desires, therefore come hand-in-hand in human society. The very force which ensures our liberty demands that we obey it ourselves if it is to have any meaning.
Roundtable: What is Democracy?
From On the Laws by Cicero, I.41:
Now every people (which is the kind of large assemblage I have described), every state (which is the organization of the people), every commonwealth (which, is, as I said, the concern of the people) needs to be ruled by some sort of deliberation in order to be long lived. That deliberative function, moreover must always be connected to the original cause which engendered the state; and it must also be either assigned to one person or to selected individuals or be taken up by the entire population. And so, when the control of everything is in the hands of one person, we call that one person a kind and that type of commonwealth a monarchy. When it is in the control of chosen men, then a state is said to be ruled by the will of the aristocracy. And that which everything is in the hands of the people is a “popular” state – that is what we call it. And of these three types any one, even though it may not be perfect or in my opinion the best possible, still is tolerable as long as it holds to the bond which first bound men together in the association of the commonwealth; and any one may be better than another.
This is a rather classical view deriving from Aristotle's taxonomy of different types of poleis within the Hellenistic world. The emphasis on who within the population deliberates on the functions on the government, though, is an attribute of democracy that any sound notion of it must capture. T
he notion that democracy is the deliberation about laws among the entire population has been emphasized by contemporary theorists like Amartya Sen. In his own work, Sen has argued that the reasons that there has never been no major famine in a modern democracy is this deliberative aspect of democracy. Since everyone can have a say in the deliberation of policies within a democracy, few within government cannot hide the facts behind famines for long and the outcry for famine-relief cannot be long kept quiet.
Another aspect of democracy is highlighted by Karl Popper in The Open Society and Its Enemies Vol I., pg. 124:
(W)e may distinguish two main types of government. The first consists of governments which we can get rid (sic) without bloodshed – for example, by way of general elections; that is to say, the social institutions provide means by which the rulers may be dismissed by the ruled, and the social traditions ensure that these institutions will not be easily destroyed by those who are in power. The second type consists of governments which the ruled cannot get rid of (sic) except by way of a successful revolution – that is to say, in most cases, not at all. I suggest the term “democracy” as a short-hand label for a government of the first type, and the term “tyranny” or “dictatorship” for the second. This, I believe, corresponds closely to traditional usage.
Popper's assertion that a democracy is a changable government brings to mind something that Edmund Burke said in Reflections on the Revolution in France: “A state without the means of some change is without the means of its conservation.”No doubt, the authoritarian style of the Bourbon kings and the centralization of political power in the halls of Versailles created a political climate in which change could only be achieved via bloodshed and the great tragedy that was the French Revolution.
Ludwig von Mises also emphasizes that a democracy is a government that can change as to best suit the will of the governed. From Liberalism, pg. 21:
Democracy is the form of political constitution which makes possible the adaptation of the government to the wishes of the governed without violent struggles. If in a democratic state the government is no longer being conducted as the majority of the population would have it, no civil war is necessary to put into office those who are willing to work to suit the majority. By means of elections and parliamentary arrangements, the change of government is executed smoothly and without friction, violence, or bloodshed.
When speaking about what democracy is, it is also important to keep in mind what democracy is not and Friedrich Hayek writes about this in The Constitution of Liberty, pg. 103:
Equality before the law leads to the demand that all men should also have the same share in making the law. This is the point where where the traditional liberalism and the democratic movement meet. Liberalism (in the European nineteenth-century meaning of the word, to which we shall adhere throughout this chapter) is concerned mainly with limiting the coercive powers of all government, whether democratic or not, whereas the dogmatic democrat knows only one limit – current majority opinion. The difference between the two ideals stands out most clearly if we name their opposites: for democracy it is authoritarian government; for liberalism it is totalitarianism. Neither of the two systems necessarily excludes the opposite of the other: a democracy may well wield totalitarian powers, and it is conceivable that an authoritarian government may act of liberal principles.
There can be both illiberal and liberal democracy. Of course, as both Popper and Mises have noted, the benefit to an illiberal democracy as opposed to, say, an illiberal monarchy is that an illiberal democracy can be changed if there are enough votes against it.
Finally, we have our last perspective in this roundtable from “Perpetual Peace: A Philosophical Sketch” by Immanuel Kant:
A republican constitution is founded upon three principles: firstly, the principle of freedom for all members of a society (as men); secondly, the principle of the dependence of everyone upon a single common legislation (as subjects); and thirdly, the principle of legal equality for everyone (as citizens). It is the only constitution that can be derived from the idea of original contract, upon which all rightful constitution of a people must be founded. Thus as far as right is concerned, republicanism is in itself the original basis of every kind of civil constitution, and it only remains to ask whether it is the only constitution which can lead to a perpetual peace.
While Kant does not describe here his notion of what “Democracy” is, but our modern notion of democracy is so close to his notion of republicanism, just as it is close to what the American founders like Madison thought of as republican government, that he mind as well be talking about modern democracy. That modern theorists like John Rawls have tried to create normative standards for democracy around notions like Kant's original contract is even more evidence that Kant speaks here of what we call “Democracy” today. Then again, we need to keep in mind Hayek's lesson that we cannot equivocate Liberalism and democracy.
This is a typical Kantian attempt at trying to understand something as well. Like Aristotle, I often think of Kant's philosophical style of taxonomic: he tries to augment our understanding of philosophical objects by immediately creating categories and systems of classification. Indeed, one of the reasons the Critique of Pure Reason can be so intimidating is just how many new words Kant creates in order to classify reason in its many functions.
However, I am greatly skeptical of the entire philosophical project of trying to deduce the nature of government via a priori constructions like the original contract. I think that Burke succinctly summarized all the errors of this rational constructivist approach when he wrote in his Reflections: “The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori.
Bibliography:
Burke, Edmund. Reflections on the Revolution in France. London: Penguin Books Ltd., 2004.
Cicero, Marcus Tullius. On the Commonwealth in One the Commonwealth and On the Laws ed. James E.G. Zetzel. Cambridge: Cambridge University Press, 1999.
Hayek, Friedrich. The Constitution of Liberty. Chicago: University of Chicago Press, 1978.
Kant, Immanuel. “Perpetual Peace: A Philosophical Sketch” in Political Writings ed. H.S. Reiss. Cambridge: Cambridge University Press, 2009.
Mises, Ludwig von. Liberalism: The Classical Tradition. Indianapolis: Liberty Fund Inc., 2005.
Popper, Karl. The Open Society and Its Enemies. Princeton: Princeton University Press, 1966.
Posted by Harrison Searles on 09/25/2012 at 11:56 AM in Commentary, Democracy, Friedrich Hayek, Immanuel Kant, Karl Popper, Ludwig von Mises, M. Tullius Cicero, Roundtable | Permalink | Comments (0)
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