Witlesstein's private language argument.

Wittgenstein introduced what is now known as 'the private language argument in §243 of part one of the Philosophical Investigations. He says:

“But could we also imagine a language in which a person could write down or give vocal expression to his inner experiences – his feeling, moods, and the rest – for his private use? 

Sure. We can imagine anything we like.  

Well, can’t we do so in our ordinary language?

Sure. Systematic 'catachresis' (i.e. the use of the wrong word) can occur such that nobody understands what Mrs. Malaprop is getting at.  

– But that is not what I mean. The individual words of this language are to refer to what can only be known to the person speaking; to his immediate private sensations.

This presents no great problem. There are plenty of people who speak in a garbled manner. We guess at what they want and try to supply them with it if we are well disposed to them. 

Remark 256 is as follows

Now, what about the language which describes my inner experiences and which only I myself can understand? How do I use words to stand for my sensations? -- As we ordinarily do?

You do things in the way you ordinarily do, though sometimes you may act in an extraordinary fashion.  

Then are my words for sensations tied up with my natural expressions of sensation?

They may be. They may not. We sometimes speak in a very unnatural way under the impress of strong emotions. O.Henry wrote a short story about two writers. One preferred to use a 'naturalistic' idiom. The other's dialogue was overwrought & bombastic. But when tragedy struck both of them, the 'naturalist' spoke in bombastic terms while the bombastic fellow spoke like a Hemingway hero.  

In that case my language is not a 'private' one.

Sez you. Anything you write or say which is not meant for other eyes or ears is 'private'.  

Someone else might understand it as well as I.

They may understand it better. I describe my sensations to my Doctor. He has a superior understanding of the aetiology and diagnostic criteria of my ailment. He asks me leading questions which initially I indignantly refute. Later, I realize that he knew what I was experiencing better than I do. I tell him so. He nods his head sagely. It is a characteristic of my illness that my ability to report on the sensations induced by it is impaired.  

-- But suppose I didn't have any natural expression for the sensation, but only had the sensation?

Then you have a linguistic deficit. You may learn the word for the thing you experience from others. That may be the first step in your getting the help you need. Karen Armstrong describes her relief at finding out that she had a medical condition which made her more prone than average to sensations of a religious or spiritual kind.  

And now I simply associate names with sensations and use these names in descriptions.

In which case, you have overcome a linguistic deficit. This may be helpful for you.  

So another person cannot understand the language.”

Unless they have a superior structural causal model of what causes the sensation and how or why there may be a linguistic deficit which people overcome in different ways. 

In life, we frequently have to learn the 'terms of art' of our profession in order to discharge our duties in a proper manner. The question is whether those duties are utile and beneficial to the commonweal or if they are useless or mischievous. 

257."What would it be like if human beings showed no outward signs of pain (did not groan, grimace, etc.)?  It would be like a person being insolvent or guilty of malpractice. No outward sign might show this but an auditor or a professional body may detect and confirm this.  Then it would be impossible to teach a child the use of the word 'tooth -- ache'."  If we can teach a child about God and Angels and Devils, we can certainly teach it 'tooth ache'.  -- Well, let's assume the child is a genius and itself invents a name for the sensation! -- Kids come up with such words by themselves without being geniuses. What happens is that they give up their babyish vocabulary and start using the words their parents and teachers use. Then they get to Middle School and start speaking the bizarre jargon of their peers. What's sad is we try to imitate them to sound cool.  But then, of course, he couldn't make himself understood when he used the word. Nonsense! He could point and mime to express himself while uttering the word vociferously.   -- So does he understand the name, without being able to explain its meaning to anyone? Yes.   -- But what does it mean to say that he has 'named his pain'? It means he has given it a name. Churchill spoke of his 'black dog' or mental depression. Apparently Victorian nannies used the term to mean unpleasant or moody children.   -- How has he done this naming of pain?! By uttering that name and doing so in a consistent fashion.   And whatever he did, what was its purpose? It helped him in some manner which is easy enough to understand. When you give a thing a name you are halfway to getting help in dealing with that thing.   -- When one says "He gave a name to his sensation" one forgets that a great deal of stage setting in the language is presupposed if the mere act of naming is to make sense. So what? Why recall that it took billions of years of evolution for language to exist?   And when we speak of someone's having given a name to pain, what is presupposed is the existence of the grammar of the word "pain"; Grammar is unnecessary. You can speak like Yoda and still be understood.   it shows the post where the new word is stationed. Words aren't stationed anywhere.   258.Let us imagine the following case. I want to keep a diary about the recurrence of a certain sensation. To this end I associate it with the sign "S" and write this sign in a calendar for every day on which I have the sensation. I will remark first of all that a definition of the sign cannot be formulated. 'S' is defined as a particular sensation. As knowledge increases the definition may be refined or discarded in favour of something more accurate or useful.   -- But still I can give myself a kind of ostensive definition. -- How? Can I point to the sensation? Not in the ordinary sense. You can point to the calendar and say 'I felt 'S' on these particular days. The Doctor may be able to deduce what causes the sensation from this information. Suppose you have this sensation every Saturday morning. The Doctor might ask what you do on Friday nights. Do you drink heavily? If the answer is 'yes', then the sensation is called having a 'hangover'.   But I speak, or write the sign down, and at the same time I concentrate my attention on the sensation -- and so, as it were, point to it inwardly. -- But what is this ceremony for? A useful purpose. I feel a strange sensation every Tuesday morning. Why? Oh. Tuesday is the day the girl from the Accounts department comes to our weekly conference. OMG! I'm in love with her!   for that is all it seems to be! A definition surely serves to establish the meaning of a sign. The thing may be a 'Tarskian primitive'- i.e. it might remain undefined.   -- Well, that is done precisely by the concentrating of my attention; for in this way I impress on myself the connection between the sign and the sensation. -- But "I impress it on myself" can only mean: this process brings it about that I remember the connection right in the future. But in the present case I have no criterion of correctness. You have the same criterion of correctness for stuff you named yourself as for stuff whose names you learned from someone else.  If you suffer mental impairment you may misuse words you created yourself or those you learnt from others.  One would like to say: whatever is going to seem right to me is right. And that only means that here we can't talk about 'right'. Sure we can. Rights are Hohfeldian immunities. Humpty Dumpty has every right to use words to mean anything he pleases. But, this would not be the case if he were acting in a professional capacity.   259.Are the rules of the private language impressions of rules? -- They may be or they may not. Rules can be helpful in some cases but, speaking generally, they don't matter.   The balance on which impressions are weighed is not the impression of a balance. Impressions are not weighed.   260."Well, I believe that this is the sensation S again." -- Perhaps you believe that you believe it! Perhaps you have shit for brains and are wasting the time of your students.   Then did the man who made the entry in the calendar make a note of nothing whatever? No. You stipulated otherwise. You are 'estopped' from now claiming otherwise.   -- Don't consider it a matter of course that a person is making a note of something when he makes a mark -- say in a calendar. Do so. It is useful.   For a note has a function, and this "S" so far has none. You stipulated otherwise. It had the function of recording the occurrence of a particular sensation.   (One can talk to oneself. -- If a person speaks when no one else is present, does that mean he is speaking to himself?) Yes.  261.What reason have we for calling "S" the sign for a sensation? Because you stipulated that was the case. You are making an argument but are so fucking stupid that you don't get that you are 'estopped' from claiming your own stipulation is wrong.   For "sensation" is a word of our common language. not of one intelligible to me alone. So the use of this word stands in need of a justification which everybody understands. And which you supplied by express stipulation.   -- And it would not help either to say that it need not be a sensation; that when he writes "S", he has something -- and that is all that can be said. "Has" and "something" also belong to our common language. Sensations are of various types. We understand that some may be very odd indeed and may have a medical aetiology. But, equally, the thing may be aesthetic or spiritual.   -- So in the end when one is doing philosophy i.e. shitting higher than your arsehole  one gets to the point where one would like just to emit an inarticulate sound. or a loud and smelly fart.   -- But such a sound is an expression only as it occurs in a particular language-game, which should now be described Witless had got it into his head that you can only use language according to a set of rules. This is the 'i-language' theory. It is false because it entails the 'intensional fallacy'. Eubulides, in the fourth century BC had described it as the masked man (enkekalymmenos) paradox: 262.It might be said: if you have given yourself a private definition of a word, then you must inwardly undertake to use the word in such-and-such a way. Why say anything so stupid? True, Germans are supposed to be obsessed with rules- everything that is not compulsory is forbidden- but Witless was Austrian.   And how do you undertake that? Is it to be assumed that you invent the technique of using the word; or that you found it ready -- made? We must assume that the technique of farting was invented by Bismarck.   263."But I can (inwardly) undertake to call THIS 'pain' in the future." -- why bother?   "But is it certain that you have undertaken it? Are you sure that it was enough for this purpose to concentrate your attention on your feeling?" -- A queer question. A foolish question which arises because of an absurd assumption- viz. that habits are actually laws which we have legislated for ourselves on the basis of profound cogitation.   --264."Once you know what the word stands for, you understand it, you know its whole use." No. You may learn that it is not polite to use that word. Suitable euphemisms may be suggested to you.   265.Let us imagine a table (something like a dictionary) that exists only in our imagination. Imaginary stuff exists nowhere else.   A dictionary can be used to justify the translation of a word X by a word Y. Why would a justification be required? Either the translation serves its purpose or it does not.   But are we also to call it a justification if such a table is to be looked up only in the imagination? Looking up a table is like getting a girl pregnant. If the table or the girl are imaginary, there was no looking up or getting pregnant. This is the reason my claim to have fathered children on various stars of Stage and Screen are met with incredulity. I may have imagined having sex with such ladies, but imaginary sex can't get anyone pregnant.   -- "Well, yes; then it is a subjective justification." It is an impossibility.   -- But justification consists in appealing to something independent. -- Not if you have a Hohfeldian immunity to do the thing when and where you please. I am allowed to imagine having sex with beautiful women. I am not allowed to claim their children as my own.   "But surely I can appeal from one memory to another. For example, I don't know if I nave remembered the time of departure of a train right and to check it I call to mind how a page of the time -table looked. Only if you have a 'photographic' memory.   Isn't it the same here?" -- No; for this process has got to produce a memory which is actually correct. If the mental image of the time -- table could not itself be tested for correctness, how could it confirm the correctness of the first memory? It may be possible to recover such memories through hypnosis. But some people may possess 'eidetic' memories or they may have trained themselves in 'memory science'.   (As if someone were to buy several copies of the morning paper to assure himself that what it said was true.) One does buy several different morning papers. It would be foolish to buy many copies of the same paper because they would be identical.   Looking up a table in the imagination is no more looking up a table than the image of the result of an imagined experiment is the result of an experiment. A 'gedanken' or thought experiment might be confirmed experimentally. An imagined table may actually be created. 268.Why can't my right hand give my left hand money? Because both hands belong to you. We don't say you give yourself money. We say you give it to others or receive it from others.   -- My right hand can put it into my left hand. My right hand can write a deed of gift and my left hand a receipt. -- But the further practical consequences would not be those of a gift. When the left hand has taken the money from the right, etc., we shall ask: "Well, and what of it?" And the same could be asked if a person had given himself a private definition of a word; I mean, if he has said the word to himself and at the same time has directed his attention to a sensation. No. We say that man has invented something new. Others may take up the word he has invented- e.g. James Joyce's 'quark'- for some different purpose. In the case of money you already possess, there is no element of invention.  .269.Let us remember that there are certain criteria in a man's behavior for the fact that he does not understand a word: that it means nothing to him, that he can do nothing with it. And criteria for his 'thinking he understands', attaching some meaning to the word, but not the right one. And, lastly, criteria for his understanding the word right. In the second case one might speak of a subjective understanding. We would speak of 'catachresis' if he is using the word in a manner most people consider aberrant. However, his usage may prevail. President Harding used the term 'normalcy' when he meant 'normality' but his coinage entered the language.   And sounds which no one else understands but which I 'appear to understand' might be called a "private language". or an idiolect unique to me.   270.Let us now imagine a use for the entry of the sign "S" in my diary. I discover that whenever I have a particular sensation a manometer shows that my blood -pressure rises. So I shall be able to say that my blood - pressure is rising without using any apparatus. This is a useful result. And now it seems quite indifferent whether I have recognized the sensation right or not. No. Your doctor will want you to describe the sensation more fully. There is extra information available there.   Let us suppose I regularly identify it wrong, it does not matter in the least. It may matter a great deal. Failing to recognize a repeated sensation may lead to an untimely death because medical help was not sought till too late.   And that alone shows he turned a knob which looked as if it could be used to turn on some part of the machine; but it was a mere ornament, not connected with the mechanism at all.) It shows nothing of the sort. The fact is sensations are 'embedded'. They are not disconnected from the body.   And what is our reason for calling "S" the name of a sensation here? An express stipulation on your part.   Perhaps the kind of way this sign is employed in this language-game. -- And why a "particular sensation," that is, the same one every time? Well, aren't we supposing that we write "S" every time? Why did Cambridge put up with this crazy nutter?   271."Imagine a person whose memory could not retain what the word 'pain' meant -- so that he constantly called different things by that name -- but nevertheless used the word in a way fitting in with the usual symptoms and presuppositions of pain" -- in short he uses it as we all do. Here I should like to say: a wheel that can be turned though nothing else moves with it, is not part of the mechanism. A neurologist would say something much more useful. It is likely that the person has a specific impairment which may respond to treatment.   272.The essential thing about private experience is really not that each person possesses his own exemplar, but that nobody knows whether other people also have this or something else. Doctors and psychiatrists- but also poets and 'method' actors- can earn a lot of money and do a lot of good by investigating this.   The assumption would thus be possible -- though unverifiable -- that one section of mankind had one sensation of red and another section another. Apparently, people in different cultures see colours differently.   273.What am I to say about the word "red"? -- that it means something 'confronting us all' and that everyone should really have another word, besides this one, to mean his own sensation of red? Or is it like this: the word "red" means something known to everyone; and in addition, for each person, it means something known only to him? (Or perhaps rather: it refers to something known only to him.) This can be, and has been, usefully investigated for various commercial and scientific purposes.   274.Of course, saying that the word "red" "refers to" instead of "means" something private is simply false. Colour words are 'public'. I am asked by the police officer investigating a hit-and-run, what colour the car was. If I say 'I call that colour 'gxzwl''  the policeman may lock me up for obstructing justice. He may produce a colour chart. I point at red and say 'that's gxzwl'! The car was of that colour!'   does not help us in the least to grasp its function; but it is the more psychologically apt expression for a particular experience in doing philosophy. i.e. talking stupid bollocks.   It is as if when I uttered the word I cast a sidelong glance at the private sensation, as it were in order to say to myself: I know all right what I mean by it. Sadly, if you are 'doing philosophy' you will swiftly confuse yourself and decide you are actually a walrus.   275.Look at the blue of the sky and say to yourself "How blue the sky is!" -- When you do it spontaneously -- without philosophical intentions -- the idea never crosses your mind that this impression of color belongs only to you. Because Mummy used to say 'look at the blue sky!' or 'look at the green grass!'   And you have no hesitation in exclaiming that to someone else. And if you point at anything as you say the words you point at the sky. I am saying: you have not the feeling of pointing -- into -- yourself which often accompanies 'naming the sensation' when one is thinking about 'private language'. You may point at your heart or your skull or your arsehole and speak or the private language in which alone you could fully express yourself on a given topic.  Nor do you think that really you ought not to point to the color with your hand, but with your attention. (Consider what it means "to point to something with the attention".) It is just a ponderous way of saying 'attend to x'.   276.But don't we at least mean something: quite definite when we look at a color and name our color -- impression? Yes.  It is as if we detached the color -- impression from the object, like a membrane. (This ought to arouse our suspicions.) Why? I point to a colour and ask if the shop has a shirt of that colour in my size. What's so suspicious about that?   277.But how is even possible for us to be tempted to think that we use a word to mean at one time the color known to everyone i.e. it has a well defined 'extension'  -- and at another the 'visual impression' which I am getting now? i.e. it is an 'intension' which may not have such an extension. I say ' I remember thinking the car was red. But, it's a funny thing, I think it was actually- I don't know- a tinge of maroon. The fact is, I was greatly upset, seeing the speeding car hit the old lady. Maybe that's why I think of the car as bright red- a colour I associate with danger.'  How can there be so much as a temptation here? Philosopher's are tempted to commit the intensional fallacy so as to come up with bogus 'paradoxes' or crazy claims- e.g. 'a private language is impossible'.   279.Imagine someone saying: "But I know how tall I am!" and laying his hand on top of his head to prove it. Nothing wrong with that. I say 'the assailant was tall.' What was his height? I don't know but he was at least this much taller than me. The police officer says 'you are six foot one. The suspect must be about six foot five.  280.Someone paints a picture in order to show how he imagines a theater scene. And now I say: "This picture has a double function: it informs others, as pictures or words inform but for the one who gives the information it is a representation (or piece of information?) of another kind: for him it is the picture of his image, as it can't be for anyone else. It is the same for everybody else. We understand that Millais's Ophelia is how he imagined a particular character in Shakespeare's Hamlet.  To him his private impression of the picture means what he has imagined, in a sense in which the picture cannot mean this to others." But it does mean that to others!  -- And what right have I to speak in this second case of a representation or piece of information -- if these words were rightly used in the first case? Sadly, in this country, everybody has the right to talk bollocks. Indeed, the thing is de rigueur if you teach Philosophy at Cambridge.   281."But doesn't what you say come to this: that there is no pain, for example, without pain behavior?" -- Nobody says that. We get that our pain is forgotten when we become engrossed in something else. You are so busy running away from an assailant that you don't notice you have been stabbed.   It comes to this: only of a living human being and what resembles (behaves like) a living human being can one say it has sensations; it sees: is blind; hears; is deaf; is conscious or unconscious. Nonsense! We may say the Oval Office shrinks with shame every time a POTUS we don't like enters it.   282."But in a fairy tale the pot too can see and hear!" (Certainly; but it can also talk.) I suppose there now are electric pots which can talk to the user and guide her through a recipe.  "But the fairy tale only invents what is not the case: it does not talk nonsense." -- It is not as simple as that. Is it false or nonsensical to say that a pot talks? Have we a clear picture of the circumstances in which we should say of a pot that it talked? (Even a nonsense -- poem is not nonsense in the same way as the babbling of a child.) The babbling of a child isn't nonsense. Witless, of course, was notorious for beating the shit out of kids.    "And yet you again and again reach the conclusion that the sensation itself is a nothing." -- Not at all. It is not a something, Yes it is. Sensations exist because they have survival value. Evolution causes them to be. Culture is a co-evolved process which may heighten certain sensations at certain times. Take 'Fear of Missing Out'. I suppose, this has gained salience because of greater technological innovation. If we don't adopt the new technology or jump on the latest bandwagon, we may greatly regret it. 'Regret minimization' appears to be an evolutionarily stable strategy.   but not a nothing either! The conclusion was only that a nothing would serve just as well as a something about which nothing could be said. Everything can be said about nothing at all. This conclusion is stoooopid.   We have only rejected the grammar which tries to force itself on us here. Grammar doesn't matter unless you are paid to teach it or to enforce its rules on semi-literate journalists.   The paradox disappears only if we make a radical break with the idea that language always functions in one way, always serves the same purpose: to convey thoughts -- which may be about houses, pains, and evil, or anything else you please. Everybody made that radical break by the time they are 5 years old. We understand that language is strategic and, most of the time, phatic.   305."But you surely cannot deny that, for example, in remembering, an inner process takes place." -- What gives the impression that we want to deny anything? When one says "Still, an inner process does take place here" -- one wants to go on: "After all, you see it." And it is this inner process that one means by the word "remembering". -- The impression that we wanted to deny something arises from our setting our faces against the picture of the 'inner process'. What we deny is that the picture of the inner process gives us the correct idea of the use of the word "to remember". Why deny what nobody has asserted? There is no 'correct idea' of the use of any word whatsoever. It is a different matter that in a particular context, for a particular purpose, one word would be considered more seemly. There is a story of an elderly Bishop who had devoted himself to working with prostitutes in the East End of London. Society ladies were not pleased when he accosted them at parties by saying 'I remember you very well! How are you doing now my dear? Are you married?'  It was suggested to this cleric that he should say 'I recall seeing you when you were a debutante at the ball given by the Dowager Duchess. You outshone all the other girls present.'  We say that this picture with its ramifications stands in the way of our seeing the use of the word as it is. It doesn't. Witless was obsessed with pictures. But language is not pictorial.  It is pragmatic and utile- or, at the very least, it helps pass the time.  What is your aim in philosophy? -- To show the fly the way out of the fly-bottle. Why bother? Flies evolved such that they have an algorithm for that sort of thing. Anyway, flies are many and fly bottles are few. One might say that Witless invented a fly bottle and made a bit of money by claiming to help his victims get out of it. But he didn't get himself out of a cascading intensional fallacy of a simple enough type.  His 'language-games' are silly. Game theory was useful because Evolution is itself game-theoretic. There are coordination and discoordination games whose solutions are linguistic. This means definitions don't matter. Verisimilitude does not matter. Even if some suspect that words like God and Love and Justice don't mean anything or are mischievous in some way, still they improve coordination and thus are useful.

Adam Smith's allodial stupidity.

 Adam Smith was stupid. That is why he is considered an economist rather than a canny Scot who had spotted a gap in the market and was supplying it in a highly professional and systematic manner- i.e. without bothering to use his brain. 

In a country which has neither foreign commerce, nor any of the finer manufactures,

there will be warring tribes and clans 

a great proprietor,

won't exist. Theft- particularly cattle theft- would be property. There may be inherited claims to territory kept up by local chieftains but there would be no 'proprietors'.  

having nothing for which he can exchange the greater part of the produce of his lands which is over and above the maintenance of the cultivators, consumes the whole in rustic hospitality at home.

Unless a rival clan attacks unexpectedly and carries away all the cattle. In that case there won't be much good cheer at the chieftain's table. 

If this surplus produce is sufficient to maintain a hundred or a thousand men, he can make use of it in no other way than by maintaining a hundred or a thousand men.

If it insufficient, the hundred or thousand must either raid their neighbours or perish of starvation.  

He is at all times, therefore, surrounded with a multitude of retainers and dependants, who, having no equivalent to give in return for their maintenance, but being fed entirely by his bounty, must obey him, for the same reason that soldiers must obey the prince who pays them.

If his retainers are shit at fighting, he himself will soon be killed or enslaved. 

Before the extension of commerce and manufacture in Europe,

it was a shithole. First came the extension of religion- Monasteries and such like- and only then did the pall of darkness begin to lift.  I suppose the Crusades played a part in this. But they imposed quite a high financial cost on some European kingdoms.

the hospitality of the rich, and the great, from the sovereign down to the smallest baron, exceeded everything which in the present times we can easily form a notion of.

It is easy enough. Your guys steal cattle and maybe grab some female slaves. You have a barbeque. Everybody's invited. But such potlatches become fewer and more far between as time goes by till a more commercial race finds that it can hire mercs from amongst your number and establish its paramountcy. This might mean that sheep replace your lusty warriors and you yourself become a 'great proprietor' who considers hospitality a virtue to be stinted to the needy but lavished on those richer or more powerful.  

Westminster Hall was the dining-room of William Rufus,

His manners may have been rough, but his finances were sound.  

and might frequently, perhaps, not be too large for his company. It was reckoned a piece of magnificence in Thomas Becket that he strewed the floor of his hall with clean hay or rushes in the season, in order that the knights and squires who could not get seats might not spoil their fine clothes when they sat down on the floor to eat their dinner.

Becket's father, though of Norman origin, was a prosperous merchant. It is believed he sold those 'fine' textiles for which his son, who rose as a commercial clerk and then was Lord Chancellor before making a lateral move into the Church, showed such tender concern. In other words, the London of Rufus & Becket was already commercia and concerned with foreign trade rather than autarkic and feudal. 

The great Earl of Warwick is said to have entertained every day at his different manors thirty thousand people, and though the number here may have been exaggerated, it must, however, have been very great to admit of such exaggeration.

I suppose, the only sort of safety available back then, was safety in numbers. It was not so much the bread and pottage served in the Baron's hall which attracted you as the chance to sleep safely on the straw surrounded by the slumbering bodies of hefty men-at-arms.  

A hospitality nearly of the same kind was exercised not many years ago in many different parts of the highlands of Scotland. It seems to be common in all nations to whom commerce and manufactures are little known. "I have seen," says Doctor Pocock, "an Arabian chief dine in the streets of a town where he had come to sell his cattle, and invite all passengers, even common beggars, to sit down with him and partake of his banquet."

Wealthy merchants in the biggest cities would be even more generous in terms of endowing seminaries and alms-houses or even contributing funds for the construction of great cathedrals or mosques. The hospitality of the merchant guild, or the monastery, might throw that of the Baron, or even the King, into the shade. But, in England, a point was reached where great Princes preferred to put up in commercial Inns rather than seek hospitality from their royal cousins. The problem with 'rude plenty' is that there is plenty to be rude about. Why not stay in a nice Inn and pay extra for dainty dishes and fine linen? 

The occupiers of land were in every respect as dependent upon the great proprietor as his retainers.

Under serfdom, they were more than dependent. They were subject to punishment if they ran away.  

Even such of them as were not in a state of villanage were tenants at will, who paid a rent in no respect equivalent to the subsistence which the land afforded them. A crown, half a crown, a sheep, a lamb, was some years ago in the highlands of Scotland a common rent for lands which maintained a family.

This was tribute as an acknowledgment of a duty of fealty.  

In some places it is so at this day; nor will money at present purchase a greater quantity of commodities there than in other places. In a country where the surplus produce of a large estate must be consumed upon the estate itself,

there is no point having a surplus if that but invites predation.  

it will frequently be more convenient for the proprietor that part of it be consumed at a distance from his own house provided they who consume it are as dependent upon him as either his retainers or his menial servants.

That's one way to do things. But you could also have a caste system. The aristocracy may be of foreign origin. They are hospitable to each other but, collectively, they terrorize the helots using, it may be, mercenaries from elsewhere. 

He is thereby saved from the embarrassment of either too large a company or too large a family. A tenant at will, who possesses land sufficient to maintain his family for little more than a quit-rent, is as dependent upon the proprietor as any servant or retainer whatever and must obey him with as little reserve.

He may join with his peers to rebel against the feudal lord. 

Such a proprietor, as he feeds his servants and retainers at his own house, so he feeds his tenants at their houses. The subsistence of both is derived from his bounty, and its continuance depends upon his good pleasure.

It depends on whether some more commercial and ruthless people can turn that land to a more productive use- e.g. replace crofters with sheep because wool commands a high price across the sea.  

Upon the authority which the great proprietor necessarily had in such a state of things over their tenants and retainers was founded the power of the ancient barons.

It was founded on military prowess though, no doubt, gifts and marriage alliances and clerical support could shore up one's position. But for how long? Either there was an invasion or a jacquerie or, sooner or later, you fall victim to intrigue or vendetta or can no longer borrow money and pay your troops. The old aristocracy has to become mercantile or else seek safe harbour in the Church or the liberal professions.  

They necessarily became the judges in peace, and the leaders in war, of all who dwelt upon their estates.

They gave sanctuary to outlaws in the hope that those outlaws would not cut their throats 

They could maintain order and execute the law within their respective demesnes, because each of them could there turn the whole force of all the inhabitants against the injustice of any one.

No. They had to tread carefully. The Chieftain remains the Chieftain because his nominal vassals have more to fear from each other than from him. 

No other persons had sufficient authority to do this. The king in particular had not.

In England, Norman Kings could conduct a 'General Eyre'. Perhaps Scotland was too poor to permit any such thing. 

In those ancient times he was little more than the greatest proprietor in his dominions, to whom, for the sake of common defence against their common enemies, the other great proprietors paid certain respects. To have enforced payment of a small debt within the lands of a great proprietor, where all the inhabitants were armed and accustomed to stand by one another, would have cost the king, had he attempted it by his own authority, almost the same effort as to extinguish a civil war. He was, therefore, obliged to abandon the administration of justice through the greater part of the country to those who were capable of administering it; and for the same reason to leave the command of the country militia to those whom that militia would obey.

Where such was the case, the King was a Roi faineant or mere figure head. Justice is a service industry. Kings provide Justice to make a bit of money. Smith, lazy sod that he was, had forgotten this.

It is a mistake to imagine that those territorial jurisdictions took their origin from the feudal law. Not only the highest jurisdictions both civil and criminal, but the power of levying troops, of coining money, and even that of making bye-laws for the government of their own people, were all rights possessed allodially by the great proprietors of land several centuries before even the name of the feudal law was known in Europe

Land title is allodial in Scotland but not England or the US. So what? Who the fuck cares?  

The authority and jurisdiction of the Saxon lords in England appear to have been as great before the Conquest as that of any of the Norman lords after it. But the feudal law is not supposed to have become the common law of England till after the Conquest. That the most extensive authority and jurisdictions were possessed by the great lords in France allodially long before the feudal law was introduced into that country is a matter of fact that admits of no doubt.

What admits no doubt was that the strong could dispossess and enslave the weak. 

That authority and those jurisdictions all necessarily flowed from the state of property and manners just now described. Without remounting to the remote antiquities of either the French or English monarchies, we may find in much later times many proofs that such effects must always flow from such causes. It is not thirty years ago since Mr. Cameron of Lochiel,

the nineteenth hereditary chieftain (Lochiel)  of Clan Cameron. Smith is pretending the guy was a local solicitor who played a prominent part in the Rotary Society.

a gentleman of Lochabar in Scotland, without any legal warrant whatever, not being what was then called a lord of regality, nor even a tenant in chief, but a vassal of the Duke of Argyle

head of the Clan Campbell. Smith pretends that the Argyles had made their money in merchant banking and advanced in the peerage thanks to their diligence as Chancellors of the Exchequer or Governors General of the Canada.

, and without being so much as a justice of peace, used, notwithstanding, to exercise the highest criminal jurisdiction over his own people. He is said to have done so with great equity, though without any of the formalities of justice; and it is not improbable that the state of that part of the country at that time made it necessary for him to assume this authority in order to maintain the public peace.

to wage war against the King. 

That gentleman, whose rent never exceeded five hundred pounds a year, carried, in 1745, eight hundred of his own people into the rebellion with him.

Because the was their Chieftain.  

The introduction of the feudal law, so far from extending, may be regarded as an attempt to moderate the authority of the great allodial lords.

Scotland, since about 2004, has only allodial land ownership. I believe the last feudal dues were done away with in the Seventies. It is notable that ever since Scotland was released from the 'moderating' effects of feudalism, great allodial lords have been beating and sodomizing tenants, and also any sheep belonging to those tenants, in a merciless manner. That is why so many billions of Scottish people have taken refuge south of the border. 

It established a regular subordination, accompanied with a long train of services and duties, from the king down to the smallest proprietor. During the minority of the proprietor, the rent, together with the management of his lands, fell into the hands of his immediate superior, and, consequently, those of all great proprietors into the hands of the king, who was charged with the maintenance and education of the pupil, and who, from his authority as guardian, was supposed to have a right of disposing of him in marriage, provided it was in a manner not unsuitable to his rank.

Very true. Queenji used to see to the education of Scottish peeps. Then Tony fucking Blair abolished feudalism and Scottish peeps started killing and raping everything in sight.  

But though this institution necessarily tended to strengthen the authority of the king, and to weaken that of the great proprietors, it could not do either sufficiently for establishing order and good government among the inhabitants of the country, because it could not alter sufficiently that state of property and manners from which the disorders arose. The authority of government still continued to be, as before, too weak in the head and too strong in the inferior members, and the excessive strength of the inferior members was the cause of the weakness of the head.

No. Feudalism was about being too fucking poor to have a standing army.  

After the institution of feudal subordination, the king was as incapable of restraining the violence of the great lords as before. They still continued to make war according to their own discretion, almost continually upon one another, and very frequently upon the king; and the open country still continued to be a scene of violence, rapine, and disorder.

Like present day Scotland where land ownership is allodial.  

But what all the violence of the feudal institutions could never have effected, the silent and insensible operation of foreign commerce and manufactures gradually brought about.

The country can tax imports and thus gain 'fiscal headroom' sufficient to pay for a standing army and nationwide independent justice system.  

These gradually furnished the great proprietors with something for which they could exchange the whole surplus produce of their lands, and which they could consume themselves without sharing it either with tenants or retainers.

This was true of anybody and everybody with a surplus. Potlatches are rational if you have no way to store surplus food and drink. You may as well throw a big party.  

All for ourselves and nothing for other people, seems, in every age of the world, to have been the vile maxim of the masters of mankind.

Whereas poor people were notorious for wanting to share their last crust with people poorer yet. I once heard of a bloke who would not let his friends fuck his wife. He wanted her all to himself. What a vile fellow he must have been!  

As soon, therefore, as they could find a method of consuming the whole value of their rents themselves, they had no disposition to share them with any other persons. For a pair of diamond buckles, perhaps, or for something as frivolous and useless, they exchanged the maintenance, or what is the same thing, the price of the maintenance of a thousand men for a year, and with it the whole weight and authority which it could give them. The buckles, however, were to be all their own, and no other human creature was to have any share of them; whereas in the more ancient method of expense they must have shared with at least a thousand people. With the judges that were to determine the preference this difference was perfectly decisive; and thus, for the gratification of the most childish, the meanest, and the most sordid of all vanities, they gradually bartered their whole power and authority.

Why is Scotland not the scenes of Civil Wars and tribal vendettas? How come Campbells don't claim hospitality from MacDonalds before slaughtering their hosts? The answer is that Scottish people have become very evil. They may not buy 'diamond buckles', but they do buy clothes and food and nice houses. Fuck you Scottish peeps! Fuck you very much!  

In a country where there is no foreign commerce, nor any of the finer manufactures, a man of ten thousand a year

ten thousand what? Sheep?

cannot well employ his revenue in any other way than in maintaining, perhaps, a thousand families, who are all of them necessarily at his command.

They are at his command so long as he is feeding them roast lamb 

In the present state of Europe, a man of ten thousand a year can spend his whole revenue, and he generally does so, without directly maintaining twenty people, or being able to command more than ten footmen not worth the commanding.

Which is why wealthy Europeans weren't constantly conducting cattle raids on their neighbours.  

Indirectly, perhaps, he maintains as great or even a greater number of people than he could have done by the ancient method of expense.

Perhaps Smith thought Mad King George 'maintained' tens of thousands of soldiers and sailors and civil servants. Also, plantation owners were maintaining hundreds or thousands of African slaves out of a pure spirit of Christian Charity and gentlemanly hospitality.

For though the quantity of precious productions for which he exchanges his whole revenue be very small, the number of workmen employed in collecting and preparing it must necessarily have been very great.

Or not. Smith had shit for brains.  He believed in the Labour theory of value. He did not understand that coal is abundant. Diamonds are scarce. Very little labour may be involved in finding a diamond. But its price is high.

When the great proprietors of land spend their rents in maintaining their tenants and retainers, each of them maintains entirely all his own tenants and all his own retainers.

Because those tenants and retainers don't do any work. Sheep shear themselves and willingly slit their own throats and barbeque themselves. Bread bakes itself. Cottages thatch themselves. 

But when they spend them in maintaining tradesmen and artificers, they may, all of them taken together, perhaps, maintain as great, or, on account of the waste which attends rustic hospitality, a greater number of people than before. Each of them, however, taken singly, contributes often but a very small share to the maintenance of any individual of this greater number. Each tradesman or artificer derives his subsistence from the employment, not of one, but of a hundred or a thousand different customers. Though in some measure obliged to them all, therefore, he is not absolutely dependent upon any one of them.

He is dependent on the State which provides national defence and a justice system. That's why he pays taxes.  

The personal expense of the great proprietors having in this manner gradually increased, it was impossible that the number of their retainers should not as gradually diminish till they were at last dismissed altogether. The same cause gradually led them to dismiss the unnecessary part of their tenants. Farms were enlarged, and the occupiers of land, notwithstanding the complaints of depopulation, reduced to the number necessary for cultivating it, according to the imperfect state of cultivation and improvement in those times. By the removal of the unnecessary mouths, and by exacting from the farmer the full value of the farm, a greater surplus, or what is the same thing, the price of a greater surplus, was obtained for the proprietor, which the merchants and manufacturers soon furnished him with a method of spending upon his own person in the same manner as he had done the rest. The same cause continuing to operate, he was desirous to raise his rents above what his lands, in the actual state of their improvement, could afford. His tenants could agree to this upon one condition only, that they should be secured in their possession for such a term of years as might give them time to recover with profit whatever they should lay out in the further improvement of the land. The expensive vanity of the landlord made him willing to accept of this condition; and hence the origin of long leases.

Why take a long lease when invaders or insurrectionists might usurp sovereignty? What drove productivity was the fact that more productive people, by hook or by crook, would gain land and other factors of production from the less productive. It was a Darwinian struggle for survival, not vanity or hedonism which caused the relations of production to change.  

Even a tenant at will, who pays the full value of the land, is not altogether dependent upon the landlord. The pecuniary advantages which they receive from one another are mutual and equal, and such a tenant will expose neither his life nor his fortune in the service of the proprietor. But if he has a lease for a long term of years, he is altogether independent; and his landlord must not expect from him the most trifling service beyond what is either expressly stipulated in the lease or imposed upon him by the common and known law of the country.

No. The Crown may demand much from the people for national defence. It is better to be impoverished by high taxes than to be enslaved.  

The tenants having in this manner become independent, and the retainers being dismissed, the great proprietors were no longer capable of interrupting the regular execution of justice or of disturbing the peace of the country. Having sold their birthright, not like Esau for a mess of pottage in time of hunger and necessity, but in the wantonness of plenty, for trinkets and baubles, fitter to be the playthings of children than the serious pursuits of men, they became as insignificant as any substantial burgher or tradesman in a city.

No. Some Scottish lairds rose in politics and statecraft to positions of international prominence. But some descendants of merchants or lawyers rose yet higher in the nobility and held great offices of state. 

It does not, perhaps, relate to the present subject, but I cannot help remarking it, that very old families, such as have possessed some considerable estate from father to son for many successive generations are very rare in commercial countries. In countries which have little commerce, on the contrary, such as Wales or the highlands of Scotland, they are very common.

But those who rose by commerce tended to marry into the older aristocracy. Moreover, where there was an absolute monarch, the old aristocracy tended to be degraded from generation to generation unless it served the state. But then many tiles of nobility were originally designations of political office.  

The Arabian histories seem to be all full of genealogies, and there is a history written by a Tartar Khan, which has been translated into several European languages, and which contains scarce anything else; a proof that ancient families are very common among those nations.

Genghis Khan got his start hunting marmosets. It is easy to create an ancient pedigree for a warrior who rose to the Crown by reason of his martial prowess.  

In countries where a rich man can spend his revenue in no other way than by maintaining as many people as it can maintain, he is not apt to run out, and his benevolence it seems is seldom so violent as to attempt to maintain more than he can afford.

Yet plenty such were bankrupted by their generosity. It turned out that the Church was a better husbandman of real estate but if it did not have the military power to defend its assets, it might lose everything.  

But where he can spend the greatest revenue upon his own person, he frequently has no bounds to his expense, because he frequently has no bounds to his vanity or to his affection for his own person.

This was also the case of Kings who were too lavish in their gifts to the Church or to artists or courtesans.  

In commercial countries, therefore, riches, in spite of the most violent regulations of law to prevent their dissipation, very seldom remain long in the same family.

Because families die out- at least in the paternal line.  

Among simple nations, on the contrary, they frequently do without any regulations of law, for among nations of shepherds, such as the Tartars and Arabs, the consumable nature of their property necessarily renders all such regulations impossible.

In such nations, almost everybody may be very poor.  

A revolution of the greatest importance to the public happiness was in this manner brought about by two different orders of people who had not the least intention to serve the public. To gratify the most childish vanity was the sole motive of the great proprietors. The merchants and artificers, much less ridiculous, acted merely from a view to their own interest, and in pursuit of their own pedlar principle of turning a penny wherever a penny was to be got. Neither of them had either knowledge or foresight of that great revolution which the folly of the one, and the industry of the other, was gradually bringing about.

This is foolish. Kings saw that by encouraging 'high value adding' crafts, their revenue could rise. Merchants saw the benefit of gaining 'royal warrants'. Foreigners are more likely to buy luxury goods endorsed by the leaders of the country producing those goods. We will pay more for the brand of cigar smoked by Fidel Castro just as we will pay more for the marmalade produced by the Company which has a Royal warrant from King Charles. 

It is thus that through the greater part of Europe the commerce and manufactures of cities, instead of being the effect, have been the cause and occasion of the improvement and cultivation of the country.

In Holland, it appears the reverse was the case. In England too, the need to raise productivity following the Black Death seems to have spurred urban development and the rise in manufacturing. 

Scotland was somewhat behind England. Even Hume and Smith, despite their great intellectual gifts and superb prose style, required aristocratic patrons. In England, Alexander Pope achieved opulence by supplying the market with a superior product. 

This order, however, being contrary to the natural course of things, is necessarily both slow and uncertain. Compare the slow progress of those European countries of which the wealth depends very much upon their commerce and manufactures with the rapid advances of our North American colonies, of which the wealth is founded altogether in agriculture.

We know Smith was wrong. The agricultural South was defeated by the industrial North.  

Through the greater part of Europe the number of inhabitants is not supposed to double in less than five hundred years. In several of our North American colonies, it is found to double in twenty or five-and-twenty years.

The indigenous population declined sharply. 

In Europe, the law of primogeniture and perpetuities of different kinds prevent the division of great estates, and thereby hinder the multiplication of small proprietors. A small proprietor, however, who knows every part of his little territory, who views it with all the affection which property, especially small property, naturally inspires, and who upon that account takes pleasure not only in cultivating but in adorning it, is generally of all improvers the most industrious, the most intelligent, and the most successful.

Till he realises he can make more money and work fewer hours by moving to the City. The big problem with being a small-holder is that your pigs sneer at you because you smell so bad.  

The same regulations, besides, keep so much land out of the market that there are always more capitals to buy than there is land to sell, so that what is sold always sells at a monopoly price.

Smith didn't know Economics. That's why he is considered the father of the subject. There is a disincentive to sell land precisely because it is relatively easy to borrow on its security.  

The rent never pays the interest of the purchase-money, and is, besides, burdened with repairs and other occasional charges to which the interest of money is not liable. To purchase land is everywhere in Europe a most unprofitable employment of a small capital.

I suppose this was true enough at that time. However the purchase of land was linked to greater political power and social influence.  

For the sake of the superior security, indeed, a man of moderate circumstances, when he retires from business, will sometimes choose to lay out his little capital in land. A man of profession too, whose revenue is derived from. another source, often loves to secure his savings in the same way. But a young man, who, instead of applying to trade or to some profession, should employ a capital of two or three thousand pounds in the purchase and cultivation of a small piece of land, might indeed expect to live very happily, and very independently, but must bid adieu forever to all hope of either great fortune or great illustration, which by a different employment of his stock he might have had the same chance of acquiring with other people. Such a person too, though he cannot aspire at being a proprietor, will often disdain to be a farmer. The small quantity of land, therefore, which is brought to market, and the high price of what is brought thither, prevents a great number of capitals from being employed in its cultivation and improvement which would otherwise have taken that direction. In North America, on the contrary, fifty or sixty pounds is often found a sufficient stock to begin a plantation with. The purchase and improvement of uncultivated land is there the most profitable employment of the smallest as well as of the greatest capitals, and the most direct road to all the fortune and illustration which can be acquired in that country. Such land, indeed, is in North America to be had almost for nothing, or at a price much below the value of the natural produce- a thing impossible in Europe, or, indeed, in any country where all lands have long been private property.

Land was scarce in Europe. It wasn't for Europeans who went to America and killed off the native population.  

If landed estates, however, were divided equally among all the children upon the death of any proprietor who left a numerous family, the estate would generally be sold.

That was what was happening to land owned by Catholics in Ireland. The consequence was the potato famine.  

So much land would come to market that it could no longer sell at a monopoly price. The free rent of the land would go nearer to pay the interest of the purchase-money, and a small capital might be employed in purchasing land as profitably as in any other way.

Land prices, in real terms, did fall from the 1880s onward.  

England, on account of the natural fertility of the soil, of the great extent of the sea-coast in proportion to that of the whole country, and of the many navigable rivers which run through it and afford the conveniency of water carriage to some of the most inland parts of it, is perhaps as well fitted by nature as any large country in Europe to be the seat of foreign commerce, of manufactures for distant sale, and of all the improvements which these can occasion.

Scotland would rise up thanks to the thrift, enterprise and innovative power of its inhabitants. 

From the beginning of the reign of Elizabeth too, the English legislature has been peculiarly attentive to the interests of commerce and manufactures, and in reality there is no country in Europe, Holland itself not excepted, of which the law is, upon the whole, more favourable to this sort of industry. Commerce and manufactures have accordingly been continually advancing during all this period. The cultivation and improvement of the country has, no doubt, been gradually advancing too; but it seems to have followed slowly, and at a distance, the more rapid progress of commerce and manufactures. The greater part of the country must probably have been cultivated before the reign of Elizabeth; and a very great part of it still remains uncultivated, and the cultivation of the far greater part much inferior to what it might be. The law of England, however, favours agriculture not only indirectly by the protection of commerce, but by several direct encouragements. Except in times of scarcity, the exportation of corn is not only free, but encouraged by a bounty. In times of moderate plenty, the importation of foreign corn is loaded with duties that amount to a prohibition. The importation of live cattle, except from Ireland, is prohibited at all times, and it is but of late that it was permitted from thence. Those who cultivate the land, therefore, have a monopoly against their countrymen for the two greatest and most important articles of land produce, bread and butcher's meat.

Indeed. Also, politically speaking, the shires were better represented than the emerging manufacturing towns. Indeed, some rotten boroughs had become thoroughly depopulated. Scottish highlands and islands would become depopulated at a later period. The 'landed interest' would decline in political power over the course of the nineteenth century. Nevertheless, the Squire and the Vicar would retain social prominence even into the Twentieth Century. Smith can't be blamed too much for failing to predict the future. What he can be blamed for is his obdurate clinging to the labour theory of value and his absurd suggestion that the nobility of old had been content to dress in rags while keeping open house for all the people of their territory. Sadly, the Scots got rid of feudalism some twenty years ago and so all land ownership there is now allodial. The result has been that Scottish people have reverted to cannibalism. Amartya Sen should have pointed this out to his friends north of the border. 

Law & Morality. Hart vs Fuller

 What is the relationship between morality and the law? The answer is that laws and legal decisions make reference to morality. There may be moral clauses in contracts or professional codes of conduct. The morality of a motivation may decide whether an action was or wasn't culpable. Equally, morality takes cognizance of the law and recognizes that it is, generally speaking, immoral to break the law for some selfish purpose. However, the fact that two things refer to each other does not mean that either is inherently connected to the other. We can consider members of different religions living under the rule of a particular Emperor who establishes a law code for his own purposes. Each religion has a different morality yet, in their interactions, they may be obedient to the law. It would be strange to say that the morality of the Christian was inherently connected to the laws established by Caesar or, at a later date, once the Emperor had converted to Christianity, that Roman Law was inherently an expression of Christian morality. 

If a legal code has an expression as a deontic logic, might it not be the case that the law has an inherent morality? Lon Fuller argued that it did. However, his argument suffered from the ' no true Scotsman' fallacy. In other words, it is a subjective belief which a person is welcome to have because he thinks well of Scottish people and considers bad behaviour as un-Scottish. Fuller thought that for a legal system to be truly legitimate, it must adhere to certain principles of procedural morality, such as clarity, publicity, and non-retroactivity. These procedural principles, according to Fuller, are essential for ensuring that laws are just and worthy of obedience. The problem here is that you may have a Government in exile whose laws and just and worthy of obedience but which has no de facto power. Is it legitimate? The answer seems to be that it is only legitimate to the extent that some foreign power deems it to be so. But that is a political question and has nothing to do with 'inherent morality'. 

H.L.A Hart debated the matter with Fuller. Hart's view was in the tradition of positive law or law as command. Hart was willing to consider retroactive legislation to punish actions which were legal but abhorrent- e.g. punishing Nazis who 'just followed orders'- though he understood the dangers of this approach. One particular case mentioned during the debate concerned a German woman who denounced her husband, a soldier, as a critic of Hitler. A Court Martial sentenced him to death but he was sent to the Front and survived. After the war, he initiated proceedings against his wife for unjust deprivation of liberty and she was sent to jail. Since wives are under no obligation to pass information to the authorities and since she had a bad motive for her action, her punishment was considered salutary. Now, we might say it was abhorrent for the Judge to pass a sentence of death and that he too ought to be punished. The problem here is that under exigent circumstances, very harsh measures may have to be resorted to even in the most liberal societies. Moreover what is or isn't abhorrent is 'epistemic'- i.e. depends on our knowledge base. We are outraged when we read about homosexuals being sent to jail or having to suffer chemical castration not so very long ago in our own country. Yet, at that time, highly erroneous views on homosexuality were held even by some Doctors. 

Hart's 'rule of recognition'- by which 'what counts as law' is recognised- is not itself positive. It is epistemic. Moreover, there may be a strategic element to it. It sometimes pays not to recognize a guy to whom you money to. Does this make legal systems subject to indeterminacy? It would be easier to say that such systems have the right to be wrong or that legal systems are underdetermined- i.e. have more unknowns than 'equations'. If the rule of recognition is not itself positive and if morality too is epistemic, how do we demarcate a 'reprehensible' situation where judges have relied on morality rather than the law? We may agree that the wife who denounced her husband acted immorally. She was sent to jail for violating morality, not the law as it stood. Was that reprehensible? The short answer is no. She owed a legal duty to her husband which she violated. She was not legally obligated to report him to the authorities though she was permitted to do so. A legal duty may be of a moral nature just as it may be of an economic or punitive nature. 

The Hart-Fuller debate was based on informal and intensional fallacies. Hart was assuming that intensions of an epistemic kind can have well-defined 'extensions' (though there might be a 'penumbra' where some extra interpretation was required). But such is not the case. Equally, Fuller was assuming that 'impredicativity'- e.g. the overlap between morality and the law such that when one changes the other may also change- arose by reason of inherent similarity. Morality is inherently law-like. The Law is 'internally' moral. The problem here is that if both can have a representation as deontic logics then we would be entitled to say both are inherently mathematical because maths can have such a representation! But so can everything in Physics! We have abolished the distinction between Phusis and Nomos! 

This brings us to a separate question- viz. verification or 'witnesses'. We know that our morality changes when new facts become available and old assumptions are shown to be false. Legal decisions too may be overturned in this manner. A judge may rule a conviction 'unsafe' in the light of new evidence.

Returning to the story of the soldier's wife who got him sentenced to death at a Court Martial, a German Court of Appeal convicted her for 'indirect perpetration' under a law from 1871. Moreover, for the husband to have been found guilty, he would have had to had a mens rea which could not possibly arise in the context of the intimate relationship between man and wife. Was the Court Martial decision illegal? I suppose so but the dude wasn't killed. He was shipped off to the front which is what would have happened anyway. Indeed, that death sentence might have helped him if he fell into the hands of the Allies. It was a badge of honour. 

More generally, the German courts did preserve something of the legal order and there were some occasions where it shielded people from the Nazis. After the war, its higher courts found ways of punishing 'grudge informants' under pre-existing laws. The plain fact is, what is or isn't 'command' is an epistemic question. This means the intensional fallacy arises if you assume it must work in a particular way because your logic demands it. Sadly, where intensions don't have stable extensions, logic has no purchase. 

One final point. Judges can do stupid shit. This can cause the law to be disintermediated. This may be a superior outcome to trusting to the law rather than seeking other ways to protect yourself or to resolve conflicts. Hart & Fuller came from countries with good legal systems. They attracted skilled immigrants who wanted to live in well ordered societies. Stupid judges in shithole countries may have been doing their people a favour by increasing the incentive to emigrate. 

Chandrachud & the hopelessness of Equality Law

 

The Indian National University of Law held a conference last year to address the question 'is there hope for equality law?' The answer was obvious. If the legal system is seen as hopeless, there is no hope for any type of law. Why might the legal system be hopeless? The answer is that if it isn't raising total factor productivity then it is parasitic and will be increasingly disintermediated. Equality rises as general purpose productivity rises and people in poorer countries begin to converge to the material standards of living available in wealthier places. True, rapid economic growth in a country raises inequality within the country. That's a good thing. It sets off a Tardean mimetic effect such that people find ways to raise their own general purpose productivity in emulation of more successful people. 

Sadly, the good folk at the National Law University in Bangalore take a different view- 

Is There Hope for Equality Law?

Not in the US under Trump.  

After 10 successful iterations, as the conference travels to South Asia this year, we ask: is there hope for equality law? Inaugurating the global decolonial moment, the nations of the subcontinent constituted themselves into new republics with a lot of

ethnic cleansing. You either had dictatorship or dynasticism or a bit of both.  

optimism and creative energy expended in reimagining and setting up just and fair societies.

Nonsense! Killing infidels doesn't make society just or fair.  

Giving shape and form to the principle of equality in political, economic and social lives was foremost in their agenda.

Nope. Looting the country was foremost on the agenda. Also passing around the begging bowl. If Uncle Sam does not feed us and wipe our bums, we will starve to death.  

But today, in the twenty-first century, there are growing concerns in this region, as there are all over the world, about the rise of inequality.

It rose long ago. Under Nehru, Princes got fat Privy purses.  Mrs Gandhi got rid of this but created a Dynasty of her own. Rahul is deeply miffed that a lowly 'chai-wallah' now occupies the office held by his great grandfather, this grandmother and then his father. 

In the recent past, we have witnessed the growing awareness of different conceptions of equality,

e.g rapists with big dicks should be incarcerated in female prisons where they can beat and rape women. Equality means I'm a teenaged girl who should be crowned Prom Queen.  

including substantive and transformative equality, systemic and structural inequality, indirect and effects-based discrimination which have made it possible to respond not only to intentional harms but to institutional harms as well.

Sadly DOGE is ridding us of many of the harms these woke nutters created.  

There has also been an expansion in the canon of identity characteristics protected under equality law.

But that law leaves 90 percent of the working population to fend for itself. Even the 10 percent in the organized sector get little protection. Indian labour law says that nobody can be made to work for more than 48 hours. Tell that to a guy at INFOSYS. He will laugh himself to death.  

Yet, despite these gains and the centrality of equality to the political and legal order of so many countries, stakeholders around the world are questioning whether the legal right to equality is capable of addressing current inequalities.

They are asking whether the thing isn't a nuisance and a tool for harassment.  

There are concerns that equality law is not up to the challenges of the climate crisis;

also it can't prevent asteroids crashing into the Earth. 

ever-increasing wealth and income inequality; with the ever-widening disparities in access to rights and justice on the basis of religion, race, caste, sex and disability; tax injustice; growing informal work, the demonization of migration, the decay of democratic institutions, the power of multi-nationals, or the rise of artificial intelligence.

Most of these things have been ameliorated over the last few decades because total factor productivity has risen. Why pretend that the reverse is the case? If you keep crying wolf, nobody will help you when the wolf eats you.  

This conference asks the bold question: In light of the doubts on the relevance of equality, is there hope for equality law?

A society can choose to fall behind other countries by focusing on equality rather than efficiency. The problem is that it may be invaded. Just as there was a guns vs butter trade-off, there is a trade off between ensuring that the average soldier is disabled, drug addicted, and incessantly undergoing gender conversion surgery,  and not getting conquered by Putin's goons.  

The aim of the conference is to explore whether and how equality law can take the next step forward

by destroying employment 

and offer insights and remedies to contemporary global challenges. Scholars and activists have used equality law to diagnose how laws, policies and programmes have created or enhanced poverty, disadvantage, stereotypes, stigmas, prejudice, oppression, and social exclusion.

Bad laws can fuck up a country only so much because the courts can be disintermediated or ignored.  

These laws, policies and programmes have been challenged in domestic, regional, and international courts and decision-making bodies.

And then those challenges were themselves challenged.  

Although equality law has at best had a mixed record of success and failure, does it still have any untapped promise and potential to ensure that the world is fairer and more just for all peoples?

No. The Law has no magic power. It is merely a service industry. If it is shitty it will be disintermediated.  

We are seeking paper proposals that address the broad questions posed by the conference. We encourage proposals to explore the following concepts and questions: the tension between equality and other foundational values such as liberty or other ideologies such as neoliberalism or neocolonialism

That tension ended long ago when Communism crawled into a corner and died. Guys who gassed on about neoliberalism now face Trump who wants to put tariffs on everything. He also wants to conquer Canada and Greenland and maybe Panama. If Colonialism is back on the table, why gas on about neo-colonialism? 

the debates on the aims of equality law, such as debates on redistribution and recognition

Why am I not recognized as the cat who is also the Galactic overlord? Also, how about redistributing your wife to me?  

the role of affirmative action in redressing equality harms

Will affirmative action be struck down by the Bench? That's a better question.  

the role of proactive powers and duties

they have no role if there is no money to pay for them.  

the role of intersectionality in addressing systemic exploitation and oppression

i.e. letting thieves and muggers out of jail because their ancestors were exploited and oppressed.  

the challenges of achieving equality in specific fields of life such as:
 race, religion, caste, class and age discrimination (as illustration)

How come I'm not Pope? Is it coz I iz bleck?  

informal employment and lack of social protection

this problem gets worse the more laws are enacted.  

 land, water and material resources

we need armies and police forces to secure them. The law has no magic power.  

 Indigenous rights

White and black people must leave 'Turtle Island'  

 language, cultural and ways of life

Why isn't Arabic being taught in Texan schools?  

decolonization;

deporting Whites and Blacks from Turtle Island.  

 disability and ableism

Death is the biggest disability. Why are so few dead people getting hired as CEOs? 

 wealth and tax inequality

Law Professors should share their wealth with the custodial staff 

family, public life and gender

Heterosexual men must chop off their dicks. 

AI and technology

Ban everything. Let the Chinese take over the world.  

citizenship, migration and statelessness

Deport Americans. Bring in refugees.  

 climate crisis

Ban death. After than ban bad weather.  

 violence

Defund the police 

the impact of social justice movements on equality law

That impact was via legislatures. 

the relationship of equality law with rising authoritarianism and democratic decay
equality and international law

Equality law may indeed have fuelled the rise of Trumpism. 

CJI Chandrachud, with typical fatuity, addressed this useless Conference. 

“In a formal equality paradigm all institutions are assumed to be inherently fair and only require removal of formal barriers to entry.

Nothing wrong with assuming you and others will be fair and then acting in accordance with this assumption. 

However, how could institutions built in a hierarchy ridden world be so unquestionably egalitarian?

They could be if they were staffed by people who were assumed to be fair and who actually were fair. Equally, if institutions built in a fair world were staffed by people assumed to be unfair, they could not act in a fair manner. Expectations create reality.

Our systems are a creature of our creation

Not in India. The Brits created most of our systems.  

and reflect our social realities.

British realities, not Indian ones.  

The focus of equality and anti-discrimination law must now be to adopt a new role in different circumstances.

i.e. find new ways to fuck up the economy. Consider such and such Government Dept. or commercial Enterprise. Currently it is doing quite a good job. We must demand it do stupid, wasteful, shite in the name of equality and anti-discrimination. That way our country will fall further behind China. The air will become too poisonous to breathe. We will perish and be replaced by some race less interested in virtue signalling.  

As we look to a future fraught with climate change disasters and the use of technology, let's commit to creating equitable structures to address these issues at the outset.

This idiot does not know that there is a trade-off between equity and efficiency- i.e. achievement. If we commit to 'equitable structures' either they will be disintermediated or the economy will collapse. 

Equality is a moral, political and legal virtue.

No. It is a fact about the world which is useful for some purpose. I might say 'this Chinese electric car is fully equal in performance to a Tesla. Yet it costs one third as much. Let us buy the Chinese car'.  

It holds all our social commitments together. As the Scottish feminist thinker of the nineteenth century Frances Wright said ‘equality is the soul of liberty; there is, in fact, no liberty without it’.

She was wrong. The America she settled in had plenty of liberty precisely because it had even more inequality. What this meant was that Americans could kill any foreign or internal adversary.  

Chandrachud is a believer in contextual comparativism. But that means looking at countries which were once as poor as India and following their example. It doesn't mean comparing yourself to very rich countries. 

Consider the South Korean legal system which contributed to rapid growth from the Sixties onward. The first thing we note is that prosecution was inquisitorial- i.e. the focus was on detection and punishment. This meant that business owners couldn't do 'capital flight' through under-invoicing etc. Corrupt officials or politicians were caught and thrown in jail. The legislature passed pro-growth laws and the Courts ensured that implementation was fair and straightforward. One big difference between India and South Korea is that the latter has a very difficult National Judicial Exam and thus very few qualified lawyers- most of whom began their careers as prosecutors or sub-judges. In 2024, South Korea had 30,525 lawyers- a significant increase from 3,364 in 1997. Thus, it is only after South Korea's per capita income became 12 times greater than India that it had about the same number of lawyers per capita. But the South Korean lawyer has an average salary ten times that of his Indian counterpart. Why? Lawyers in South Korea raise total factor productivity. In India they lower it. 

 Chandrachud underlines the importance of institutional design in ensuring equity in access and process. Does he mean that more 'night-courts' and 'weekend courts' should be set up so that daily wage labourers have access to the Justice system? Does he advocate 'E-adalat'- i.e. electronic courts guided by generative AI on matters of law and which deliver judgments in vernacular languages? No. What he is talking about is Judges spending more time on showing off their knowledge of 'intersectionality' and 'cultural imperialism' in the course of lengthy judgments which end by referring the matter back to the very district court from which appeal was entertained 30 or 40 years ago. 

Turning to a genuine political and legal issue in India- viz. whether sub-classification within groups qualifying for affirmative action is permissible- Chandrachud considers it permissible. This means that the 'creamy layer' may find its entitlements are significantly curtailed. It remains to be seen whether reservations are renewed for another ten years in 2030. One reason Dr. Ambedkar wanted a sunset clause on affirmative action was that, as an economist, he knew that Economic growth causes greater and greater heterogeneity with the result that Equality Law becomes otiose since the underlying 'identity classes' are dissolving. More importantly, as we enter a period of rapid geopolitical change, which may be accompanied by a retreat from free trade, countries will have to focus on efficiency so as to remain competitive and capable of defending themselves. Equality had its moment in the Sun at a time when general purpose productivity was rising in the organized sector. But the gig economy and glaring differences in productivity brought about by new technology means that the Sun has set on Equality.