Posted by: maroonmaurader | April 19, 2010

Freeing the conceptual tangle

CF’s earlier post about slavery, justice, restitution, etc. raised a number of points worth discussion; rather than create a rambling, incomprehensible comment in reply I decided to create a rambling, incomprehensible post.

CF’s second point strikes me as a little threadbare to stand up to careful scrutiny. One can consider a slave in the Roman Empire who, having worked hard and faithfully for his master for a decade, earns his freedom. In this case it clearly seems like the emancipation was a redistribution, as the person is now free to sell themselves into slavery to someone else if they so choose. The “property” was, is, and will continue to be; the only thing that has changed is who possesses that property. I think the problem here is looking at slave-ownership as necessarily equivalent to owning the slave (just as bench-ownership is owning the bench, giving you free right to sell the bench, repaint the bench, or break the bench down and use it for firewood). It would be more accurate to say that slave-ownership is shorthand for owning control over certain rights or freedoms which by default are controlled by the slave himself. For CF’s argument to be compelling, you must also assume that the rights of the slave and the slave are inseparable… which is essentially to start by assuming (3) is correct.

CF also raises some arguments for why gains gotten through just application of an unjust law should be respected. I agree so far as he goes, but believe he overlooks a major exception. Suppose some bitter legislator manages to slip a passage into law in Lawtopia which states that anyone who pays the city a nominal fee gets a license to steal goods from their neighbors. This only passed because it wasn’t noticed at the time, and within a week the provision is repealed. I would still say that someone who went around stealing from their neighbors in the interim week is not entitled to keep the objects they stole, nor are they entitled to recompense for their value if those objects are returned to the original owners – even though their acts were legal at the time.

I would assert that the reason is that they should have known better. It was painfully obvious that it was an unjust law, and that they were simply taking advantage of it during the brief window of time before someone else noticed and closed what was essentially a loophole.

The third issue to address is the “puzzle” CF raises – someone gaining advantage from just application of a law shouldn’t lose that advantage simply because the law itself was unjust, and someone disadvantaged by an unjust law should be recompensed. Chris proposes that “it is the government’s duty, as the wrongful guarranteer [sic] of the unjust law, to provide adequate restitution for those wronged while maintaining the advantage for those who received one.” CF objects on the grounds that this solution simply does not work, for two reasons: “(a) in some cases restitution requires diminishing a particular person’s advantage and (b) there is still the problem of government’s having to disadvantage someone in order to pay restitution.”

In regards to (a), I think the key is to distinguish between relative and absolute advantage. The relative advantage would be how well-off someone is relative to others; the absolute would be overall quality-of-life, wealth, or some such measure. I assert that the government has no responsibility to preserve relative advantage. If a person is better off than his slave, he can have no fair expectation of the same degree of improved quality-of-life relative to his slave after the government frees said slave. So it seems that it would be more fair to say someone gaining absolute advantage shouldn’t lose that advantage. But here I see no problem; if someone takes losses then the government pays compensation and that is the end of it. So it certainly seems like restitution does not require diminishing absolute advantage.

In regards to (b), I believe I’ve had that exact discussion with CF before. As I recall, it was more or less agreed that taxes to pay restitution are no more or less just than taxes to pay off debt accumulated by a previous (now deceased) generation due to inept management*… which is an interesting debate, but (I) wandering rather far afield from “Conceptions of emancipation,” and (II) complicated enough it really shouldn’t be addressed purely as a footnote here.

*CF – the relevant discussion began around 7:30 PM (PDT), 8/8/08, if you want to check your own records on the matter.

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Responses

  1. 1) I agree with you that there’s no reason, in principle, why a slave cannot be transferred from one person to another. I also agree – though with less confidence – that if you transfer a slave to himself, while allowing him to sell himself again (if he chooses) then you have, indeed, redistributed property. But if you emancipate slaves qua liberating them and abolishing the institution (the type of emancipation I had in mind) then it seems less obvious that the emancipation was a transfer as opposed to an…abolition. (This is so precisely because the sort of emancipation I have in mind – which, needless to say, is not entirely unheard of – makes it so that “the rights of the slave and the slave himself are inseperable.”)

    2) “Suppose some bitter legislator manages to slip a passage into law in Lawtopia which states that anyone who pays the city a nominal fee gets a license to steal goods from their neighbors. This only passed because it wasn’t noticed at the time, and within a week the provision is repealed. I would still say that someone who went around stealing from their neighbors in the interim week is not entitled to keep the objects they stole.” Oh, MM. Very clever.

    Actually, though, my intuitions vary with whether we can properly describe the measure as law. If (a) it is just obviously the result of chicanery and oversight and (b) the “rules of recognition” of the society in which the law is passed don’t allow rules that are obviously the product of chicanery to count as law (if, for instance, people would respond by scoffing at the law, judges would throw cases out of court, etc.) then I agree with you.

    If, on the other hand, we’re dealing with some sort of “hyper-formalist” society where everyone sincerely accepts that bills that have passed through the proper forms are validly enacted, sincerely believes they will be applied and enforced, then I disagree – there’s something unjust about redistributing the ill-gotten gains.

    3) Think heirlooms and other items of unique personal value (a loyal old slave!). Those are the sorts of things it might seem unjust for the government to let those who’ve ill-gotten them retain, but also unjust to confiscate.


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