Categories
Antitrust Civilization Monopolization

Nietzsche on Competition and Monopoly

When the traveler Pausanias visited the Helicon on his travels through Greece, an ancient copy of the Greeks’ first didactic poem, Hesiod’s Works and Days, was shown to him, inscribed on lead plates and badly damaged by time and weather. [I]t . . . began straight with the assertion: ‘there are two Eris-goddesses on earth’. This is one of the most remarkable of Hellenic ideas and deserves to be impressed upon newcomers right at the gate of entry to Hellenic ethics. ‘One should praise the one Eris as much as blame the other, if one has any sense; because the two goddesses have quite separate dispositions. One promotes wicked war and feuding, the cruel thing! No mortal likes her, but the yoke of necessity forces man to honor the heavy burden of this Eris according to the decrees of the Immortals. Black Night gave birth to this one as the older of the two; but Zeus, who reigned on high, placed the other on the roots of the earth and amongst men as a much better one. She drives even the unskilled man to work; and if someone who asked property see someone else who is rich, he likewise hurries off to sow and plant and set his house in order; neighbor competes with neighbor for prosperity. This Eris is good for men. Even potters harbor grudges against potters, carpenters against carpenters, beggars envy beggars and minstrels envy minstrels.’

Hesiod . . . first portrays one Eris as wicked, in fact the one who leads men in hostile struggle-to-the-death, and then praises the other Eris as good who, as jealousy, grudge and envy, goads men to action, not, however, the action of a struggle-to-the-death but the action of competition. The Greek is envious and does not experience this characteristic as a blemish, but as the effect of a benevolent deity . . . . Because he is envious, he feels the envious eye of a God resting on him whenever he has an excessive amount of honor, wealth, fame and fortune, and he fears this envy; in this case, the God warns him of the transitoriness of the human lot, he dreads his good fortune and, sacrificing the best part of it, he prostrates himself before divine envy.

If we want to see that feeling revealed in its naïve form, the feeling that competition is vital, if the well-being of the state is to continue, we should think about the original meaning of ostracism: as, for example, expressed by the Ephesians at the banning of Hermodor. ‘Amongst us, nobody should be the best; but if somebody is, let him be somewhere else, with other people.’ For why should nobody be the best? Because with that, competition would dry up and the permanent basis of life in the Hellenic state would be endangered. . . . The original function of this strange institution is . . . not as a safety valve but as a stimulant: the pre-eminent individual is removed so that a new contest of powers can be awakened: a thought which is hostile to the ‘exclusivity’ of genius in the modern sense, but which assumes that there are always several geniuses to incite each other to action, just as they keep each other within certain limits, to. That is the kernel of the Hellenic idea of competition: it loathes a monopoly of predominance and fears the dangers of this, it desires, as protective measure against genius—a second genius.

Friedrich Nietzsche, Homer on Competition, in On the Genealogy of Morality 187, 189-92 (Keith Ansell-Pearson ed., Carol Diethe trans., 1995).

Three observations. First, Nietzsche’s remark that “[e]ven potters harbor grudges against potters” reminds us that McCloskey ought to have included envy (the second Eris) among the bourgeois virtues, though she did not. In fact, one often senses that the only really human feeling left in the modern world—the only one for which any individual really is capable of killing or dying—is that of envy. Caged, to be sure, hidden, so rarely acknowledged that one would call it subconscious if one did not so often see that knowing look in the eyes of those it is consuming. I suppose in modern guise envy is what Nietzsche elsewhere calls resentment. Which leads to the second observation.

Second, Hellenic potters may have envied Hellenic potters, but what is distinctly un-bourgeois about the Hellenic world, as described by Nietzsche, is this: “[b]ecause he is envious, [the Greek] feels the envious eye of a God resting on him whenever he has an excessive amount of honor, wealth, fame and fortune, and he fears this envy[.]” The modern does not fear God; he believes, instead, that he deserves his wealth, even when he doesn’t have it, which is why envy spoils into resentment in him. Only the successful Greek would ever mistake himself for a God; but even the unsuccessful modern does that.

Third, Nietzsche is a Chicagoan through and through, not an antimonopolist in the contemporary mold. Yes, Nietzsche does ask : “[W]hy should nobody be the best?” And he does answer: “Because [if someone were the best], competition would dry up and the permanent basis of life in the Hellenic state would be endangered[.]” But the reason for which the best must be smashed is not to promote fairness. It is not to make equal.

On the contrary, it is to achieve even greater heights of inequality. As Nietzsche says: “[t]he original function of this strange institution [of smashing the best] is . . . not as a safety valve but as a stimulant: the pre-eminent individual is removed so that a new contest of powers can be awakened[.]” So far from making equal, the purpose of competition is to create “—a second genius.” Thus, in the language of today’s antitrust, Nietzsche’s antimonopolism is dynamic and Schumpeterian. He would smash the best only where the best stand so high above everyone else that they inhibit the process of overcoming and surpassing associated with dynamic competition. The notion that markets should be fair, in the sense that the best should be placed on an equal footing with the rest, plays no role in this calculus.

Are we there yet with the Tech Giants? Is Google already an Alexander—“that grotesquely enlarged reflection of the Hellene,” as Nietzsche calls him in the same essay—raging unchecked across the earth? I suppose that the “kill zone” narrative comes closest to making a genuinely Nietzschean case for breakup: no one will innovate in Google’s markets because Google will win.

But only to the extent that the harm of the kill zone is thought to be the toll it takes on excellence.

Categories
Civilization Meta Miscellany World

Why Do Mechanical Explanations of the Social Deny Software?

They say that a good social theory must throw out some reality in order to have any explanatory power. Thinkers who favor mechanical explanations of the social—the people who claim that it is climate or asteroids or guns, germs, and steel that explain the rise and fall of civilizations—always seem to throw out the part of the mechanism that is the software. Why?

That is, all mechanistic explanations of the social treat people as machines—robots—that have certain operating limits. They need food and water. They need temperatures that are not too high and not too low. They cannot withstand the slash of a steel weapon. They are susceptible to disease. And so on and all true. These operating limits do constrain what the robots can do. But that is far from all.

Robots need an instruction set to run; they need, in other words, a behavior. And if the dawn of the age of artificial intelligence should be teaching us anything, it is that behavior matters a lot. There is a very big difference between a car, a car that knows to break before hitting something on the highway, and a self-driving car. There is a very big difference between a Rhoomba that moves only in straight lines and one that criss-crosses the room. It would seem to follow that the robots’ software should matter a lot in the rise and fall of civilizations. So why not make social theory by keeping the software and throwing out the robot hardware instead?

Programming in the social is thought, belief, training, worship, prejudice, emotion, philosophy, literature, letters, culture, art. It is the humanities. Humanistic explanations for things—Ruskin’s observation that you can read the decline of a civilization in its art—theorize the social in terms of the human robot’s programming. The humanities throw out the hardware.

(By programming I do not mean that we are necessarily controlled by others. In human beings we are dealing with semi-autonomous, artificially (nay, actually!) intelligent robots. So programming, for us, necessarily means self-programming at both the individual and social levels. Our programs are some peculiar function of inputs from other robots, inputs from the programs of the robots themselves (that is, we use our thought to influence ourselves), and hard-coded inputs (those determined by our genes).)

It is a peculiar thing that at the same moment that, as a technological matter, we are coming to recognize the transformative nature of artificial intelligence in relation to hardware, and indeed at the same moment that, thanks to the great financial success of companies like Google and Facebook, which derives entirely from the value of connecting businesses with individual minds, we are coming to appreciate the great difference influence over minds makes in social outcomes, we should continue to favor mechanical explanations for the social, to attribute the fall of Rome to barbarian invasions rather than decadence, or the rise of China to good policy rather than good spirit.

When we do consider the software, we tend to ignore the most important parts. We credit the power of propaganda, but not the power of religion, ideas, philosophy, love, or, indeed, art. But these too are a part of the programming, and if you judge by the things you yourself hold most dear, likely the most important part.

So do not tell me that talking won’t work. That writing will never change things. That symbolic protest is weak. Or that the only political power grows out of the barrel of a gun—unless you believe that your computer will behave the same no matter what software it runs.

Categories
Civilization Despair Miscellany World

God Has Died a Thousand Times, and Once in Philadephia

In its most extreme form, the state to an American is ‘a bunch of people’, politicians and their officials whom he watches with critical and even distrustful eyes; he sees the state as a powerful instrument that belongs to and is operated by groups of people for their own ends. At the other extreme one finds in Europe the adoration of the state as something majestic, transcendent and even divine (in the tradition of the ‘divine’ emperors of Rome). Nobody expressed this feeling better than the famous philosopher Hegel, who was professor at the Prussian University of Berlin from 1818 to 1831 and wrote: ‘The march of God in the world, that is what the state is. In considering the Idea of the State we must not have our eyes on particular states . . . Instead we must consider the Idea, this actual God, by itself’.

R. C. van Caenegem, An Historical Introduction to Western Constitutional Law 168 (2000).
Categories
Civilization

Clearly Ruskin Wouldn’t Have Had Trouble Defending a Liberal Arts Education

Taste is not only a part and an index of morality; — it is the only morality. The first, and last, and closest trial question to any living creature is, ‘What do you like?’ Tell me what you like, and I’ll tell you what you are. . . . ‘Nay,’ perhaps you answer; ‘we need rather to ask what these people and children do, than what they like. . . .’ But they only are in a right moral state when they have come to like doing it; and as long as they don’t like it, they are still in a vicious state. The man is not in health of body who is always thinking of the bottle in the cupboard, though he bravely bears his thirst . . . . And the entire object of true education is to make people not merely do the right things, but enjoy the right things: — not merely industrious, but to love industry — not merely learned, but to love knowledge — not merely pure, but to love purity — not merely just, but to hunger and thirst after justice. . . . What we like determines what we are, and is the sign of what we are; and to teach taste is inevitably to form character. . . . [A] nation cannot be affected by any vice, or weakness, without expressing it, legibly, and for ever, either in bad art, or by want of art; and that there is no national virtue, small or great, which is not manifestly expressed in all the art which circumstances enable the people possessing that virtue to produce.

John Ruskin, Unto this Last, and Other Writings 234-235 (Clive Wilmer, ed. Penguin Classics 2005) (1862).
Categories
Civilization

Ruskin’s Conservatism

As I was thinking over this, in walking up Fleet Street the other day, my eye caught the title of a book standing open in a bookseller’s window. It was — On the necessity of the diffusion of taste among all classes. ‘Ah,’ I thought to myself, ‘my classifying friend, when you have diffused your taste, where will your classes be? The man who likes what you like, belongs to the same class with you, I think. Inevitably so. You may put him to other work if you choose; but, by the condition you have brought him into, he will dislike the work as much as you would yourself. You get hold of a scavenger or a costermonger, who enjoyed the Newgate Calendar for literature, and ‘Pop goes the Weasel’ for music. You think you can make him like Dante and Beethoven? I wish you joy of your lessons; but if you do, you have made a gentleman of him: — he won’t like to go back to his costermongering.’

John Ruskin, Unto this Last, and Other Writings235 (Clive Wilmer, ed. Penguin Classics 2005) (1862).

In the event, it was tastes that diffused, and diffused up rather than down, and taste that disappeared, instead of classes.

Categories
Antitrust Civilization Monopolization Paradise Lost World

Permian-Triassic Extinction Event Antitrust

The Great Dying deconcentrated markets:

The complexity of an ecosystem can be estimated by the relative number of species: if a handful of species dominate, and the rest carve out a marginal existence, then the ecosystem is said to be simple. But if large numbers of species coexist together in similar numbers, then the ecosystem is far more complex, with a much wider web of interactions between species. By totting up the number of species living together at any one time in the fossil record, it’s possible to come up with an “index” of complexity, and the results are somewhat surprising. Rather than a gradual accrual of complexity over time, it seems that there was a sudden gearshift after the great Permian extinction. Before the extinction, for some 300 million years, marine ecosystems had been split roughly fifty-fifty between the simple and complex; afterwards, complex systems outweighed simple ones by three to one, a stable and persistent change that has lasted another 250 million years to this day. So rather than gradual change there was a sudden switch. Why?

According to paleontologist Peter Wagner, at the Field Museum of Natural History in Chicago, the answer is the spread of motile organisms. The shift took the oceans from a world that was largely anchored to the spot — lamp-shells, sea lilies, and so on, filtering food for meager low-energy living — to a new, more active world, dominated by animals that move around, even if as inchingly as snails, urchins and crabs. Plenty of animals moved around before the extinction, of course, but only afterwards did they become dominant. Why this gearshift took place after the Permian mass extinction is unknown, but might perhaps relate to the greater “buffering” against the world that comes with a motile lifestyle. If you move around, you often encounter rapidly changing environments, and so you need greater physical resilience. So it could be that the more motile animals had an edge in surviving the drastic environmental changes that accompanied the apocalypse . . . . The doomed filter feeders had nothing to cushion them against the blow.

Nick Lane, Life Ascending: The Ten Great Inventions of Evolution 145-46 (2009).

There is much food for antitrust thought in evolutionary history if you think of firms as representing methods of extracting value from the consumer environment. That makes them like species, all the members of which tend to use the same methods of extracting value from the natural environment. One species of bird uses long bills to get worms. Another uses short bills. And so on.

The Advantage of Incumbency

The Great Dying teaches a number of lessons. First, like the Cretaceous–Paleogene extinction event about which I have written before, it suggests the advantages of incumbency. The fact that less motile organisms have not reattained their former dominant position in the 250 million years of relative competition that has prevailed since the Great Dying tells you that less motile organisms were not particularly competitive relative to motile organisms. And yet for the 300 million years until the Great Dying they dominated, despite the parallel existence of more motile organisms. Why? Perhaps simply because they evolved first.

Industrial organization economists have long warned about these “first-mover advantages,” but the antitrust laws ignore them. The “conduct requirement” in antitrust holds that simply being dominant is not an offense in itself. There are plenty of good reasons for that rule, because it’s easy to use it to punish justified market success. But one bad reason to support the rule is that the dominant firm is always the better firm. If the history of the Great Dying is any guide, incumbency does sometimes protect uncompetitive firms.

Competition’s Good Side or The Virtue of Theft

The Great Dying’s second lesson for antitrust has to do with motility, for motility means, at least in part, predation and theft. Creatures that move can seek out new environments not yet colonized by stationary organisms feeding off minerals or sunlight. But one of the major things that motile organisms also do is to predate. Motility lets you range across the environment eating the organisms that have done the hard work for you of generating energy from light and inanimate matter.

We think of theft as being a problem in the law. We like to say that theft reduces incentives for innovation and economic growth because it means that innovators can’t fully reap the fruits of their productive labors. The plant that has a leaf torn off by some vicious armored predator has done the environmentally-friendly work of converting light to energy without so much as emitting a single carbon atom, and yet here the fruits of its labors have been stolen from it. Fortunately, we say, in the business context the law is there to stop such theft.

But the fact that the flourishing of motility after the Great Dying was correlated with an increase in ecosystem complexity—a reduction in species dominance—suggests that theft is not necessarily bad, at least if deconcentration of markets is your thing.

This is a familiar point, approached from a different angle. Industrial organization scholars have long pointed out that the strength of intellectual property protection matters. Make the patent term too lengthy and innovation will fall below optimal levels, because inventors won’t be able to build on prior art to create the next generation of inventions. It follows that if patent rights are too strong, then theft of intellectual property could actually lead to more innovation, and richer and more complex markets. Similarly, when a monopolist ties up a source of supply and uses it to suffocate competitors, theft would bring more competition to the market.

Antitrust recognizes the importance of theft for competition, although antitrust—probably wisely—doesn’t say so in quite such stark terms.

Every time antitrust enforcers order a dominant firm to supply an essential input to competitors—and antitrust does do that occasionally, even in the United States—antitrust is, objectively speaking, revising a property right. Which is to say: authorizing disadvantaged firms to steal from the dominant firm.

The nice thing is that when you’re the law you get to define the boundaries of the law, so you can plausibly say it’s not theft that you’re authorizing, but rather that the dominant firm’s ownership rights over the essential input never actually included the right to deny the input to competitors.

Regardless how it’s characterized, antitrust’s forced dealing remedy does allow other firms to take the fruits of the defendant’s labors, and for a price that must be less than their value, otherwise the taking would provide no competitive succor to the beneficiaries. That’s legalized predation in the biological sense. The aftermath of the Great Dying suggests that it’s probably justified, at least if the goal is to deconcentrate markets.

Competition’s Bad Side or The Horror of Predation

But at the same time, one must proceed with caution in celebrating the complexification of ecosystems that followed the Great Dying, because complexity and competition are not ends in themselves.

There’s a reason for which biologists also refer to the great age before any predators had evolved, the Ediacaran period, as the “Garden of the Ediacara.” We can view the rise of motility and predation, and the demise of filter feeder dominance after the Great Dying, as leading to a golden age of competition and complexity. It’s the golden age we live in today (or lived in until we started wiping out large parts of it starting with the end of the last ice age).

Or we can view the rise of motility and predation as destroying a peaceful Eden in which life competed principally on the virtuous project of converting the inanimate into the animate, of extracting energy from the physical environment, rather than from other living things.

From this perspective, if over the first 300 million years of the existence of complex life evolution tended to hit a wall, and for eons life did not get much better at converting the inanimate to the animate, then that says something about the limits of biology. It does not tell us that the motility, predation, and theft that followed represented an improvement.

From this perspective, the rise of motility and predation was instead a symptom of evolution’s defeat. When life could no longer advance by getting better at converting inanimate matter to animate matter, it turned on itself, leading to the hell of predator-prey competition that has characterized the past 250 million years. If only there had been a world government in the Ediacaran capable of enforcing the basic rules of criminal and property law!

Life would have stayed happy.

In general, the antitrust laws today are much more sympathetic to this dark view of predation than to the other. Antitrust enforcers for the most part shy away from revising property rights. And the legal system as a whole, of which antitrust is just a part, gives great priority to property. The natural world is, of course, the state of nature. And if there is one thing that separates civilization from the state of nature, it’s the concept of property, the notion that theft is to be curtailed, and that evolution within civilization is to take place along the old Ediacaran lines, with each attempting to better himself other than at the expense of others.

Over its first 300 million years, complex life does seem to have hit a wall in bettering itself through virtuous, non-predatory competition, at least so far as the biochemistry of energy production out of inanimate matter is concerned. Our inability to generate energy other than by burning fossil fuels shows that for all our own ingenuity we humans haven’t managed to outdo nature either. We live off the productive labors of other creatures, including both living plants and those dead so long as to have been ground into oil. That makes us, and the horror we have meant for the planet, the logical extreme end of the triumph of motility and predation after the Great Dying.

But the fact that civilization’s vision, honored however often in the breach, is fundamentally Ediacaran, suggests to me that there is hope. Climate disaster is effectively forcing us to extend the property laws we enforce within civilization to the life outside of it. With luck, the virtuous, non-predatory competition that results will help us achieve the breakthrough that life could not, and allow us to advance into new methods for generating energy from the inanimate.

Categories
Civilization Regulation

Read It in the Sands

Anyone still skeptical about the usefulness of regulation as a general matter ought to consider the contrast between archaeology and treasure hunting. By which I mean, the triumphs of Twentieth Century state-sponsored archaeology and the failure of the preceding millennia of free-market treasure hunting.

Categories
Civilization Miscellany

An Internet of Steles

kairinfo4u, Wadi Hammamat: Dynasty 11, Mentuhotep IV, CC BY-NC-SA 2.0. kairinfo4u writes: “In the ‘Middle Kingdom’ Nebtawyre Mentuhotep IV sent a large expedition in Year 2 of his reign to quarry bekhen-stone for the King’s sarcophagus. We are told by Vizier Amenemhat how a gazelle gave birth on the block they had chosen, an auspicious omen which greatly encouraged the workforce of 10,000 men. Another of Vizier Amenemhat’s texts records the wonder of rain, a flash flood that produced a well of clear water.”

[H]e engraved on a stone the whole story.

The Epic of Gilgamesh 61 (N. K. Sanders trans., Penguin Books 1960).

Bronze age rulers erected steles so that their words would endure. We do that today with blockchain.

Almost everything we know about ancient Egypt, for example, even the name “Ramses,” comes to us from steles and other inscribed stones dug out of the sand as many as 5000 years after pharaohs ordered them carved. Inscriptions in stone endure because stone is difficult to work. Hard to destroy; harder to recarve in ways that do not betray the fact that recarving has taken place. When the pharaohs made a record in monumental stone, they made public records the authenticity of which could be verified, even by scholars working millennia hence.

But that’s just what blockchain does for the internet. Blockchain inscribes information onto computer memory in a manner that, like a stone carving, is very difficult to change.

Making the information stored in computer memory permanent is not easy, because computer memory is engineered for rapid change. Computers record data by rearranging the electrons adhering to the physical material of a disk, tape, or chip. Changing the data therefore requires no more than an application of electricity.

The ease with which data can be changed in computer memory is the source of computing’s power, driving the cost of communication almost to zero. In the millennia following the carving of the first steles, which are very costly to create, civilization succeeded at finding increasingly inexpensive methods of recording information. But even the most inexpensive methods devised, such as paper, still required costly manipulation of matter on a macro scale–the application of inks–to be useful. Computer memory outdid all alternatives by requiring only manipulation of the utterly insubstantial electron.

But with the reduction in costs came impermanence. You, or a hacker, could change your data without leaving a trace of what came before. Indeed, without anybody being able to say for sure whether your data had been changed at all.

Blockchain tries to solve the problem of data impermanence, while preserving all of the advantages of electronic computing and communication, by storing data in an encrypted format. Changes to the data not made using the proper format can immediately be detected by readers. So merely changing the data electronically, while just as easy as it has always been, won’t fool readers, who can see that the changes don’t conform to the standard.

Indeed, the fact that blockchain solves the impermanence problem without changing the basic ease of storing data with electrons means that blockchain allows computers to continue to communicate quickly and cheaply. Data endures because it has been tied to encryption cyphers, not because it has been tied to the physical world, as in the case of a pharaoh’s steles.

A different approach to the problem of internet permanence would be to rig up a computer system in which robots would store data by automatically carving the data onto stone tablets. That too would solve the permanence problem. Anyone who wanted to verify the data could inspect the stone tablets to ensure that they had not been altered, just as archeologists inspect ancient steles today. But having computers write data to steles would make it difficult to copy and transfer that data even when the data has not been altered. Blockchain captures the unalterability of stone inscriptions without suffering from limits on communicability associated with the use of stone as a medium.

But why exactly does encryption breed permanence? Can’t you just crack the code and change the data in a way that respects the encryption format and therefore is not detectable by others? The answer is no because cracking codes is hard, requiring powerful computers, lots of electricity to run them, and time. Just as effectively rechiseling a stone inscription requires expertise, energy, and time. So blockchain uses encryption to restore the permanence in data that the information age destroyed.

With one important difference. Blockchain is an effective check on the undetected rewriting of data, as are steles, but, unlike steles, blockchain is no check on destruction of data, in the sense that blockchain makes deleting data from computer systems no harder to do than before. That is the price blockchain pays for allowing users to continue to communicate quickly with each other. Blockchain sits on top of the electron-based storage systems of computers, making it very hard to change the data undetected, but no harder to destroy the data on those systems. An electric shock will still suffice for that.

So the pharaohs still have something on computers, at least with respect to preventing data destruction, rather than just the alteration of data. (Of course, unlike data stored on steles, internet data is stored in multiple locations, forcing the destroyer to travel to be effective.)

Blockchain is so much an artifact of information technology that it could not be useful without that technology. The basic blockchain concept of using encryption to prevent alteration of data has been around forever. People wrote in code in the 16th century as much to keep their words secret as to ensure that what they did write could not be altered imperceptibly. But encoding and decoding are expensive and time intensive, even when you have the key to the code, and are not trying to crack it. Blockchain is feasible on a large scale only because users can rely on computers to determine whether data conforms to the required format. Thus information technology, despite feeding on impermanence, also enables a new kind of permanence.

The tearing down of constraints, so feted in our technological age, is not always a good thing. Nature is constraint. Technology, in mastering nature, removes constraint. But a lack of constraint is chaos, the opposite of civilization. One way to retain constraint is through law, but that has proven a feeble method. The only alternative is therefore to use technology to build artificial constraints back into nature, albeit in ways that are more suitable to our needs than natural constraints once were. Blockchain is an installment in that enterprise.

(I thank Thibault Schrepel and Sam Weinstein for piquing my interest in blockchain.)

Categories
Backwardness of law Civilization

Realism in Action

A surprising number of Medals of Honor have been awarded for disobeying an order. For example:

The President of the United States of America, in the name of Congress, takes pride in presenting the Medal of Honor (Posthumously) to Technician Fifth Grade Lewis R. Hall, United States Army, for gallantry and intrepidity above and beyond the call of duty on 10 January 1943, while serving with Company M, 35th Infantry Regiment, 25th Infantry Division, in action at Mount Austen, Guadalcanal, Solomon Islands. As leader of a machinegun squad charged with the protection of other battalion units, Technician Fifth Grade Hall’s group was attacked by a superior number of Japanese, his gunner killed, his assistant gunner wounded, and an adjoining guncrew put out of action. Ordered to withdraw from his hazardous position, he refused to retire but rushed forward to the idle gun and with the aid of another soldier who joined him and held up the machinegun by the tripod to increase its field of action he opened fire and inflicted heavy casualties upon the enemy. While so engaged both these gallant soldiers were killed, but their sturdy defense was a decisive factor in the following success of the attacking battalion.

War Department, General Orders No. 28 (June 5, 1943).

The contrast, incidentally, between this sort of disobedience, and the disobedience that involves killing a child so that you can brag falsely to your friend back home that you used your knife in action, is rather stark. What matters for the realist project is that we can tell the difference.

Categories
Backwardness of law Civilization Legal education

The Chain of Judicial Command

Legal education typically assumes that in a world in which laws are clear, laws must be followed. If you don’t like the law, t’row de bums out. If a judge does not like the law, the same: the judge must still obey, until the people t’row de bums out. The legislative process is the only socially healthy way to change the law.

And yet, one finds in that most authoritarian, rule-bound of all cultures, the military, an understanding of the importance of having people not follow the rules, even in combat situations in which you might think that the chain of command would be most important.

I have:

Colonel Edson D. Raff was the kind of midlevel combat commander who saw what needed to be done and went ahead and did it without waiting for orders, the kind of innovative, aggressive commander any general would give a million dollars for — if he didn’t have him court-martialed and shot.

Orr Kelly, Meeting the Fox: The Allied Invasion of Africa, From Operation Torch, to Kasserine Pass, to Victory in Tunisia 113 (2002).

And:

The company commander contacted the battalion commander by radio and asked for instructions. As he did so, his company spontaneously rose up, as one man, and assaulted the hill. The assault was such a surprise — as much to the American commanders as to the Italians — that the hill fell to the Americans almost immediately. The spontaneous assault was one of those rare battlefield phenomena where soldiers, acting without orders, see what needs to be done and do it.

Orr Kelly, Meeting the Fox: The Allied Invasion of Africa, From Operation Torch, to Kasserine Pass, to Victory in Tunisia 271 (2002).

I have never read anything like this written of a judge taking orders from a legislature. It is never said. But do judges in fact go ahead and do “it without waiting for orders?” Why, yes, they do. All the time. There is a culture of silence about this, as if judicial disobedience were a more worrisome thing than a lack of discipline on the battlefield. I would have thought, given the stakes, that it would be the other way around.

When judges do “it without waiting for orders” in the right way, and help us win the battle for justice thereby, they make a valuable contribution to our society, a contribution that makes them worth at least $900,000, if not the million that should go to the maverick who through inspired disobedience helps us to succeed on the battlefield. If we can talk about the fact and contribution of disobedience at war, we ought to be able to talk about the fact and contribution of disobedience in adjudication.

In other words, the law in action quite often fails to reflect the law on the books, not only because the law may have gaps, conflicts, and ambiguities, but because judges flout it. And that’s not necessarily a bad thing.