Have you ever made a good cocktail by accident? You know, where you combine various ingredients — including quite a few that don’t seem to go together — and yet finish up with something awesome?
Yeah, doesn’t happen often, does it? Or it only tastes good when you’re drunk. Taste the mix again later — several days later, usually — and you discover that Midori really is as awful as you thought it was, and the whole lot finishes up poured down the kitchen sink. On the plus side, you won’t need Drano any time soon.
I had this thought a fortnight ago when I was reading a post at Bob Carr’s ‘Thoughtlines’ blog (yes, that Bob Carr) on Marx, of all things. Mr Carr was commenting on a piece by Larvatus Prodeo’s Mark Bahnisch (which isn’t online, alas), although in the end his point was separate from Mark’s original article, as the comments thread shows. The essence of Mr Carr’s argument concerned the nasty outcomes attached to Marxism wherever it’s been tried:
Well, there’s been a field experiment since 1917 in societies based on Marxist principles, governed by Marxists. And to my knowledge every one of those societies has had its version of a gulag and its version of mass slaughter. I presume I don’t need to make the case about Russia or China. I presume that knowledge of the North Korean gulag is reasonably well spread, and of the cruel labour camps that caused huge numbers of Vietnamese to risk their lives on the high seas.
The reason is that Marx’s prescriptions for society were these: the defeat of the bourgeoisie and the achievement of collective ownership under the control of the working class. Such a radical program could only be enforced by totalitarian means. And since 1917 so it has come to pass. Where has such a transformation come about through the ballot? Go on. Just one example.
At first, the thread was a straight argument about historical analysis, with Mark arguing in the comments that Mr Carr was guilty of the same historical determinism as Marx (with his ‘historical forces’), but then it drifted, and it drifted in a way I find interesting. (Don’t get me wrong, I find causation in history interesting too, but that’s a different kettle of fish, and not what I’m discussing here.) In the comments, ‘Antonio’ made the following observation:
Mr Carr, in the same way that there is a great deal of difference between the New Testament and the institution of the Catholic Church, there is a substantial difference between Marx’s literary output and movements which described themselves as Marxist. This is an important distinction to make which you are evading. If we took the approach of dismissing a body of literature on the basis of social movements inspired in their name we would throw out the major religious works of humanity! Heidegger was a Nazi, should we ignore his Opera Maiora? Bertrand Russell was a Marxist, should we re-evaluate his oeuvre accordingly?!
It seems a bit lazy to claim that because that Marxists have historically been authoritarian therefore we should bury Marx’s literary legacy without further analysis and engagement. Surely with the end of the Cold War, now is the time for a more sober, mature and critical analysis without needing to cite the hackneyed formula Marx = Communism = Death.
This is something that has been exercising my mind since I studied jurisprudence at Oxford and saw the use that various left-leaning scholars were making of Nazi jurisprude Carl Schmitt. At the time I was horrified, as they were drawing on those components of his thought that a number of leading Nazis used to justify the destruction of the Weimar Republic – an observation Hayek made in The Road to Serfdom. It really did seem as though sundry lefties were playing with explosives in a confined space. (First you blow yourself up, then other people. And then things get really ugly.)
I wondered (and still do): what are we supposed to do with philosophers like Schmitt, or Heidegger, or Lenin? People who were committed to ideologies that were (and are) utterly evil, that killed millions, at the same time as the killings were going on, often with said philosophers’ active connivance? See, while I’m sympathetic to Mr Carr’s view of Marxism, and think that people who take Marx seriously also need to take Marxist outcomes more seriously than they do (something Terry Eagleton utterly fails to understand, as Lorenzo points out very skillfully here), there is a difference between a Marx and a Lenin or a Schmitt. Lenin was a murdering monster. Schmitt helped destroy Prussia’s pro-Weimar government in 1932. Marx sat around (mainly in the British Library), wrote a lot of stuff and grew luxuriant facial hair. Eleven people turned up to his funeral; not exactly a confidant prediction of future influence. The distinction may be a fine one, but it is important to bear it in mind.
My first question, then, is what does one do with thinkers (and ideas) that are ‘contaminated at source’? Does the fact that a given political or legal thinker was a complete dick in his personal and public life make a difference to how we should view (a) that person qua person and (b) any prescriptions for action that person may or may not have made? And (if the answer to both questions is ‘yes’), at what point does someone cross the line from ‘this guy’s ideas are really interesting, but hoo boy what a tosser’ to ‘if this guy’s behaviour is a reflection of his ideas, then it’s probably best we leave his philosophical beliefs in a sealed lead casket marked with the intellectual equivalent of one of those biohazard labels.’
I’ve become interested in questions like this partly thanks to constant reminders from Lorenzo that ‘ideas have consequences’ and partly through reading a lot of Stoicism for my novel, one of the strands of which points out that if the person proposing a given set of ideas is an evil little shit, then their ideas are probably best left alone. Call it the pagan version of ‘by their fruits you shall know them’.
My (very preliminary) suspicion on this is that we need to work out the difference between ‘contaminated at source’ and what I’ve come to call ‘a formidable mixture problem’ before we address what we do with things and people that fall into category one. I’m a lawyer, not a philosopher, but I think I know enough of both to be able to sketch out what a ‘formidable mixture problem’ looks like. This is a legal example, and concerns an institution, not a single individual, but it’s a clear case of someone (a whole lot of people, actually) mixing random alcoholic beverages and coming up with an utterly awesome cocktail. Just don’t look too hard at the ingredients on the bottle, ‘tis all.
The troubled history of the Sale of Goods Act (1893)
Most of the time, when civilians claim that Roman law influenced the common law, they are making it up: lots of people seem unable to understand Hayek’s argument that it is perfectly possible for two different societies in two different periods to evolve very similar legal systems, both equally efficacious, independently of each other. They assume that the later system and people must have imitated the earlier system and people, and don’t appreciate that the reason English law in the late 18th and early 19th century (sometimes later, too) looked like Roman law of the first and second century AD is because the two societies were in some ways similar. Since the (pagan) Romans are our culture’s reference trope for ‘bloodthirsty sex fiends’ and the (Victorian) English are our reference trope for ‘restraint and probity’, this can create cognitive dissonance.
There is, however, one stellar example of genuine Roman influence on the common law: the Sale of Goods Act. And it is the mother of all ‘formidable mixture problems’. See, it couldn’t exist without slavery, combined, of course, with the mercantile Roman obsession about getting their money’s worth (crumbs, now they sound like Scots).
In a Roman contract of sale, the seller had four duties: he had to care for the property before delivery, to deliver it with vacant possession, to warrant against eviction, and to warrant against defects. It all sounds pretty standard, yes? Just what you’d find in a modern contract of sale, especially a land sale, yes?
It’s the warranty against defects that interests me here. In early law, the rule was the familiar caveat emptor — let the buyer beware — but as the Empire expanded, slave dealers acquired the sort of reputation that we now attach to used car salesmen. The Roman slave-market developed a serious case of George Akerlof’s Market for Lemons with its associated information asymmetry. ‘You sold me a Gaul and said he was Greek!’ ‘This one doesn’t speak Latin!’ ‘He doesn’t meet the description, you said he was handsome!’ ‘She’s lazier than a garden ornament!’ (All of these are culled from genuine Roman litigation, by the way).
At first, the Roman law requirement to contract in good faith helped curb some of the excesses. Sellers had to warrant the absence of fraud, and fraud was defined widely enough to take in what now falls under fraudulent misrepresentation [Derry v Peek (1889) LR 14 App Cas 337] and negligent misrepresentation [Hedley Byrne & Co Ltd v Heller & Partners Ltd  AC 465]; see D.184.108.40.206 and D.220.127.116.11. Over time, slave dealers had to provide accurate descriptive notices setting out information on everything from nationality to diseases (if known) to useful skills to a tendency to run away.
However, good faith wasn’t enough when the dealer could plead that he didn’t know about any defects. The law only covered what are known in the trade as ‘patent defects’, that is, defects knowable to the buyer ‘on reasonable inspection’. In practice, this meant that even when a given slave wasn’t being purchased for sexual purposes, he would be stripped naked in front of potential buyers.
Eventually, the sharp practices of slave dealers were dealt with by a combination of incremental development in the courts and an edict by the Curile Aediles, who had general supervision of the Empire’s slave markets. The substance of the edict and various court rulings was to make slave dealers liable for inherent defects, as Ulpian explains [D.18.104.22.168]:
It must be recognized that the vendor is still liable, even when he is unaware of the defects which the aediles require to be declared. There is nothing unreasonable about this; the vendor could have made himself conversant with these matters, and in any case the purchaser is not concerned whether he has been deceived due to the dealer’s ignorance or to his guile.
These ‘implied guarantee of quality’ rules covered things like slaves that were ‘not of merchantable quality’ and ‘not fit for purpose’ or which constituted a ‘failure to meet a sale of goods by description’. The remedies available to the purchaser were rescission (within 6 months of the sale) or what in Scotland is called ‘reduction’ but the Romans called ‘diminution’ (within 12 months of the sale). This allowed the buyer to recover part of the purchase price — ie, the difference between the slave’s actual value at the time of the sale and the price paid. A new phrase entered into the law of contract: caveat venditor, ‘let the seller beware’.
The rules as applied to slave dealers were extended–sometime in the late Republic–to land sales and then consumables. Ulpian notes that the implied guarantees as to quality reached their fullest application–probably also in the late Republic–when extended to all sales of goods or land [D.21.1.63]. This had interesting social effects, some of which archaeologists have noted. Everyday products from the Roman world (their Samian ware pottery, their tools, their buildings, even clothing) are notable for an absence of shoddy workmanship. People–particularly in Italy itself–ate exceptionally well, with no evidence of differential heights based on servile or non-citizen status. They were taller on average than modern Italians. But then, selling addled food or watered milk could land you in court, and the Romans took ‘goodwill’ very seriously. Manufacturers would routinely mark items with distinctive words and symbols, and there was legal comeback if you used someone else’s words and symbols without permission, in an action that resembles the common law tort of ‘passing off’.
Some of the suits brought under the actio redhibitoria (rescission) and the actio quanti minoris (diminution) make interesting and sometimes unedifying reading. There’s the wealthy woman who bought a hundred bottles of ‘best Campanian wine’ for a party, only to discover that it hadn’t been sealed properly and had gone sour (failure to meet a sale of goods by sample; she won), the man who bought a piece of land and the vendor hadn’t known it was subject to a servitude [easement] (‘inadequate disclosure’, but damages were reduced; he should have undertaken a title search).
Then there was the chap who purchased a ‘pretty virgin slave’ and discovered she wasn’t a virgin. He was sent packing with a flea in his ear about his rather adolescent sexual tastes. He tried again, this time amending his statement of claim (formula) to argue error in substantialibus (mistake as to the substance of the contract). Roman lawyers – like their common law cousins — were generally unimpressed by mistake as to substance arguments, with Ulpian making tetchy remarks about the law of contract being evidenced by what parties did, not by what was in their innermost thoughts. This was followed by more ‘and why would you want a virgin anyway’? remarks and the tart ‘if you’d bought a pretty woman and the dealer had delivered you a pretty man, then I’d grant an action, but not for this.’ [D.18.1.11].
Roman law textbooks wax lyrical about the sophistication of this system; liability for inherent defects is taken for granted in modern industrial economies, and for a pre-industrial society to develop it is extraordinary. That much is simple fact, and when the English common lawyers came to draft the Sale of Goods Act 1893, finally overturning centuries of caveat emptor, they produced a remarkable example of a codifying statute: where existing legal principles are drawn into a single, well-drafted whole. Although subjected to a bit of nanny-statish jiggery-pokery over the years, the modern Sale of Goods Act has changed little from its Victorian ancestor. And when it was extended to a relationship not governed by contract [in another Scots case, the famous Donoghue v Stevenson  UKHL 100], the modern law of consumer protection had arrived.
What none of the textbooks acknowledge is the size of the mixture problem built into this wonderful bit of lawyering. Modern consumer protection laws, friends and neighbours, didn’t just emerge within a slave-owning society. They arose thanks to the pervasive, all-encompassing Roman model of slavery, and in response to its particular characteristics and circumstances. Roman slavery–because it was unsupported by Greek or Christian-style natural law arguments or antebellum US racism–depended on the exercise of naked power.
Yes, it was rational. No Roman tried to argue that some people were naturally servile, or that some races were better than others. But because it was utterly bereft of ideology (although one fellow student in my Roman law class did make the rather plaintive observation–which has bite in Scotland–that ‘they were awfully Thatcherite, weren’t they?’), laws like these turned on the common Roman desire to get one’s money’s worth and to make a profit. And while the later developments are all well and good–application to land, consumables, chattels generally–the whole thing kicked off because Marcus and Marcia Average objected to participating in a market for lemons. Human lemons.
The resulting cocktail, you’ll agree, is pretty damn fine. It also contains lemonade (‘if life hands you lemons…’ yeah, I know, bad joke).
What’s a girl to do?
I’d be a whole lot happier if formidable mixture problems like this were acknowledged, not glossed over. This doesn’t, however, mean going the other way, construing everything as some sort of victim v oppressor deal with the devil (something which is terribly fashionable in the halls of academe, as David Mamet points out):
Higher ed, he said, was an elaborate scheme to deprive young people of their freedom of thought. He compared four years of college to a lab experiment in which a rat is trained to pull a lever for a pellet of food. A student recites some bit of received and unexamined wisdom—“Thomas Jefferson: slave owner, adulterer, pull the lever”—and is rewarded with his pellet: a grade, a degree, and ultimately a lifelong membership in a tribe of people educated to see the world in the same way.
“If we identify every interaction as having a victim and an oppressor, and we get a pellet when we find the victims, we’re training ourselves not to see cause and effect,” he said. Wasn’t there, he went on, a “much more interesting… view of the world in which not everything can be reduced to victim and oppressor?”
Acknowledging mixture problems means accepting cognitive dissonance as part of everyday life. You get the dodgy Hoover you bought replaced (even though there is no fault on the seller’s part) because Marcus and Marcia Average once bought a slave who turned out to be ugly, or thick, or lazy, and they didn’t like being on the wrong side of the deal. The legal principle, it turns out, has general application.
Maybe once we’ve accepted some cognitive dissonance, we can start asking the more complex questions of cause and effect Mamet raises. Why did Roman slavery lead to this development? Was it to do with their strongly pro-market culture? After all, the Greeks and Persians had just as much slavery during the same period; both also laboured under legal systems that failed to come up with the presumption of innocence, let alone anything like the Sale of Goods Act. Why? Both Greeks and Persians were also beholden to philosophical or religious ideas that held that things have an inherent value, and were not therefore subject to agreement (consensus ad idem) between the parties to a contract. No Roman jurist ever fell for this remarkably silly idea:
All buying and selling has its origin in exchange or barter; there was once a time when money did not exist and terms like ‘merchandise’ or ‘price’ were unknown. Rather, each person bartered what was useless to him for that which was useful, according to the exigencies of his current needs; it often happens that what one man has in plenty another lacks. However, since it did not always and easily happen that when you had something that I wanted, I, for my part, had something that you were willing to accept, a material was selected which, being given a stable value by the state, avoided the problems of barter by providing a consistent medium of exchange. This material, struck in due form by the mint, demonstrates its utility and title not by its substance but by its quantity, so that no longer are the things exchanged both examples of wares, but rather one of them is termed the ‘price’ [Praetorian Edict: D.18.1.1pr].
The Roman, then–because he wasn’t tied to ideas of inherent value–was freed up to negotiate ‘value for money’ on his own terms, an important aspect of individual autonomy. Now, I don’t know whether this suggestion of mine is true, but Akerlof and Hayek’s research leads me to suspect that it is. In any case, I want to convey the idea that thinking in this way about the Roman role in consumer protection law involves accepting both slavery and the fact that a cherished modern legal development has its origins in slavery without attempting to wish any part of the complex reality away.
As applied to Karl Marx
For modern scholars of Marxism (getting back to Mr Carr’s point), their ‘mixture problem’ (I think Karl Marx falls into the slightly less problematic of the two categories) involves accepting the reality of Marxist outcomes and trying to disentangle those bits of Marx that may still be useful or illuminating (FWIW, I think the Marxist notion of false consciousness still has legs when applied to Muslim women who sing the praises of what is patently a misogynistic religion) from the bits that have led to murder and mayhem. Denying or minimising the latter is absurd, and leads to the situation where it is possible for public figures to confess to youthful Communism but not youthful Fascism (Peter Mandelson, anyone?) and get away with it. Both systems were equally vicious, and conservatives and libertarians are going to hammer at the double standard every chance we get until the point is conceded. Mr Carr may be a Labor fellow, but that does not undermine his argument one whit.
Contaminated at source
Of course, all the above leaves the Lenins and Schmitts of the world unaddressed. I do think it’s fair and reasonable to put people like that in a different category from Karl Marx or the slave-owning Roman jurists and their Sale of Goods Act. Maybe Marx is more problematic in that so little of what he proposed has been useful or efficacious, although I recognize in that statement the Scottish Enlightenment inspired thinker that I am: along with David Hume and his modern followers, particularly Neil MacCormick, I think that outcomes matter, that persistent failure cannot be handwaved away.
Moving beyond ‘formidable mixture problem’ to ‘contaminated at source’ involves the reanimation of an idea that used to be a large part of philosophy, and was then (rather unfortunately, I think) ceded to theology: that is, if a given philosophy doesn’t provide at least some tips for how to live one’s life, then it’s probably not worth much. Yes, I’ve strayed into the realm of virtue ethics, which always makes me want to reach for my revolver, so let me stress at the outset that I am (following MacCormick) most interested in outcomes. I suspect that if people generate terrible outcomes in their private and public lives and then purport to provide moral or political guidance, the latter is contaminated by the former, sometimes irredeemably.
In other words, what people say cannot be neatly separated from what they do, especially when what they do is in the name of what they say. There are, of course, data points along a hypothetical continuum, but I am reasonably sure that Lenin and Schmitt fall so far on the wrong side of the point marking off ‘absolute evil’ from everything else that the best we can learn from either of them is how to be cruel, authoritarian, and violent. When the likes of Chantal Mouffe, for example, mine Schmitt’s division of politics into ‘friend and enemy’ for Marxist purposes simply because she doesn’t like the drift towards the centre characteristic of modern liberal societies, the result is deeply disturbing (although it does at least have the merit of candour; she wants a society filled to the brim with antagonism). It also probably says more about her than the liberal society she purports to criticize.
What would my proposal have for education that does involve the likes of Schmitt, Lenin or Heidegger? These ideas are very preliminary, but are not proposed lightly or without careful thought:
1. First, an open acknowledgement that the individuals in question were evil human beings, and carried out their evil in the name of what they believed.
2. Next, an open acknowledgement that criticisms of our society derived from criticisms they made of their society may have equally deleterious effects if widely disseminated (‘ideas have consequences,’ as Lorenzo always says).
3. Finally, an honest acceptance of failure (something that applies to both ‘mixture problems’ and ‘contaminated at source’ issues). The modern law of consumer protection (and tortious liability generally) has been subjected to statutory or common law limits of one form or another in every modern jurisdiction. Lawyers and the general public are now well aware of ‘floodgates’ arguments, which sometimes means injustice in the individual case (the Hillsborough cases are, to my mind, signal examples of this). Similarly, political proposals that are all about good intentions but that involve terrifying consequences have to be subjected to empirical limits. Political proposals can have ‘floodgates’ arguments attached too.
We all have to drink the cocktail made up of things from our political and legal past (politics and law, alas, have an impact on everyone). Being frank about failure and honest about origins is, I think, the beginning of wisdom. It also means that what we drink will not kill us.