Q is for ... Quis custodiet ipsos custodes?

The phrase, literally translating as "who will watch the watchmen themselves," first found expression in the Satires of the Roman poet Juvenal. The inference is that setting up one group to have authority over another does not make them intrinsically worthy of that power: specifically, the creation of a police state does not, in and of itself, guarantee that the police will not abuse their authority and flout the law.

Societies throughout history have recognized that law must be enforced if it is to be respected, which is the rationale for having police in the first place. This philosophy found its clearest expression under the Greek lawmaker Draco, who produced the first written constitution of the city-state of Athens and whose name is preserved in the eponym "draconian." Even minor infractions against the laws set down by Draco earned the death penalty; Draco himself is said to have remarked that he considered these so-called lesser crimes deserving of such a harsh punishment, and had no greater to offer for crimes of greater severity. In the draconian perspective, the fundamental crime is to break the law - the specifics of which law is broken, how and why, are unimportant. The rule of law itself is paramount, and sufficient justification for even the strictest interpretation of its codes.

Neither is this "zero tolerance" approach an historical aberration. The application of Shar’ia law in modern states such as Saudi Arabia frequently appears in Western eyes to be harsh and barbaric; Singapore treats littering as a major crime; in Maricopa County, AZ, Sheriff Joe Arpaio charges persons unable to verify their American citizenship with the crime of human trafficking - the 'traffic' being themselves, on the assumption they're in his jurisdiction illegally. All of these examples illustrate a philosophy of law in which justice consists of a strict implementation of the fullest penalties possible to all criminal acts; if, in the Platonic sense, law is seen as an instrument of the Platonic Good, then this conception of justice is essentially applying the standards of the Platonic ideal to the imperfect real world. The problem with this approach is that it assumes laws which are finite in scope and fallible in application - because they are created and maintained by imperfect human beings, and not manifestations of some Platonic higher realm - to be infinite and infallible.

What most of us would think of as "justice" applies a more casuistic perspective. Fairness dictates that we consider all factors that contributed to a criminal act, including factors that might mitigate the responsibility of the criminal or the severity of his punishment; further, fairness dictates that we consider the possibility that the law itself, either in its conception or its application, may be at fault. The essential components of a system of justice, as opposed to one of law, are doubt and development. A just system is one that is never certain of its pronouncements, and always willing to revise them.

It is also marked by accountability. There are, broadly speaking, four aspects to a legal system: the legislature that drafts laws, the executive that authorizes them, the judiciary that rules on cases before the law, and the police that enforce the laws. After Montesquieu, we are accustomed to see these as separate - indeed, as citizens of a police state we are accustomed to see the fourth as something separate from the first three - but in fact all four can coexist within one body and still constitute the essence of government. In fact, no government can exist that does not embody these four functions. Governments may exist to provide services under the social contract, but they can only do so if they first serve some corpus of law, even if that law is as primitive as the arbitrary pronouncements of a capricious dictator. It is not too far a stretch to suggest that the fairness of a social contract is predicted by the fairness with which the government conducts its fundamental functions in regard to the law.

This brings us, by a circuitous route, back to Juvenal's question. Plato's resolution, incidentally, was to have the watchmen watch themselves - tell themselves the "noble lie" that they were not as other men, that their duty made them greater, stronger, impervious to temptation and duty-bound to demonstrate their superiority with exhibitions of selfless and even-handed process of law. If one accepts Plato's reasoning here, it seems not unreasonable to ask why only policemen should tell themselves this "noble lie" - can not a whole society lie to themselves in this fashion, and do away with both police and criminals in the process? Further: if everybody is capable of deceiving themselves into accepting a weight of moral duty that does not actually burden them in practice, there seems no more need for any of the other three functions of prosecuting law than there is that of policing it. Then there is no need for government of any kind, and a state of anarchy exists. This chronicler encounters serious difficulty when attempting to reconcile such a state of affairs with a general acceptance of any coherent moral code; it seems, rather, that all we would have accomplished would be to rename what we now call "crimes" as mere "actions," no more reprehensible than kissing a baby or eating an ice-cream.

Moreover, there seems a flaw in Plato's premise that anybody can succeed at telling themselves this "noble lie" indefinitely - especially when they occupy a position of power over others, the temptation must arise to define, rather than simply accept, the rights and wrongs of human conduct. This tendency in the powerful towards overreach and corruption of the highest ideals is thoroughly explored in Alan Moore's seminal graphic novel, Watchmen - the title is, of course, a nod to the ancient Juvenalia, inter alia. The arrogance of Ozymandias; the intolerance of Rorschach; the cynicism of the Comedian; the despair of Nite Owl; the cosmic indifference of Dr. Manhattan; all of these illustrate the perils of power.

And then, of course, there's Silk Spectre, and perils of an entirely different dimension.

F is for ... Freedom.

Freedom - liberty - is a fundamental ideal of the United States, and indeed of most modern democracies. Philosophically, this reflects the considerable influence of the 17th Century English political philosopher John Locke, whose natural law arguments stemmed from the axiomatic assertion that Man in Nature is free. The preamble of the U.S. Constitution explicitly references this “self-evident” truth, and many of us today would accept it readily enough. We know, of course, that people don’t enjoy perfect freedom in the real world; but - and this is important - most of us consider this to be the result of unfair practices: discrimination, oppression, and so forth. Most of us can also readily identify persons whose liberties we feel properly ought to be infringed upon; the concept of social justice spares us the burden of hypocrisy in doing so. Locke and later social contract theorists defined social justice variously, but in each case the function of social justice is to delineate the circumstances under which freedoms can be compromised and the nature of that compromise.

One of the major philosophical divisions regarding the proper limits of the social contract hinges on the definition of liberty. One camp focuses primarily on positive liberty - that is, the “freedom to” perform some action. Another emphasizes negative liberty - the “freedom from” restrictive influences. Both aspects were represented in the famous “Four Freedoms” enunciated by Franklin D. Roosevelt: “freedom of speech, freedom of worship, freedom from fear, freedom from want.” It can be seen that the positive liberties thus identified are far more modest than the negative liberties. The positive freedoms are limited to what people can say and believe, liberties that prove in practice very difficult to infringe upon in any case - easier, perhaps, to criminalize and punish after the fact, although in practice such an approach generally only draws attention to its own inadequacy, as with the fatwa declared against Salman Rushdie for his authorship of The Satanic Verses. By contrast, the negative freedoms outstrip the scope of those freedoms guaranteed U.S. citizens under the Bill of Rights, and purport to promise the supply of every human need - an aim that could fairly be described “ambitious,” and one which led to the drafting of a far more sweeping assertion of rights: the Universal Declaration on Human Rights (UDHR) that was Eleanor Roosevelt’s lasting contribution to global society. Whether the existence of UDHR makes the negative liberties invoked as rights more achievable or reasonable is, perhaps, a valid question. Regardless, the emphasis on negative liberty is a hallmark of modern liberal political philosophy - the focus on positive liberty, by contrast, is the cornerstone of libertarianism and associated with the minarchist tendencies of the political Right.

My own approach to the question is along libertarian lines, and takes a lead from Locke’s own emphasis on property rights - the Preamble to the U.S. Constitution slightly bowdlerizes Locke’s original triad of “life, liberty, and property,” perhaps unsurprisingly given the sensitivity of the slavery issue as evidenced by the abhorrent “three-fifths compromise.” I’m also much influenced, here as elsewhere, by the pragmaticism of Charles Peirce: in the context of personal freedom, this manifests as a requirement that any freedom I claim be a freedom I can actually meaningfully enjoy in the context of my everyday life. Along these lines, I define freedom to be, specifically, the freedom to dispose of property according to my own will. The implication of free will is another nod to Peirce: if everything I do is predetermined, then I have no freedom in practice; I can only do what I am ordained to do, and whatever property I have is an accident and no more mine than I am mine own. I find this a miserable as well as an unnecessary philosophy, and have besides several reasons for believing that I, as a rational actor, make praxeological choices with my life.

Freedom should not be something that is given to me by somebody else: if I am free on sufferance only, then I am not free at all. Therefore, freedom must start within me - within my own willed actions. The first thing I am able to influence by my own will is my own body: thus, the beginning of property is the physical self, and all other property is obtained and secured through that self. Everybody who has a physical self that they can subject to their will is thereby made free to that extent; insofar as there are variations in the amount and security of property in each individual’s possession, there are also degrees of freedom individuals can enjoy. The person who controls most property - by which I mean, a person whose willed interactions with the world influence the most material entities in that world - is, by this measure, the most free. I’ll explore the implications of that argument, particularly in the context of the conflicting views of property expressed by Pierre-Joseph Proudhon and Karl Marx, in a future blog.

This conception of positive liberty sets the stage for a vision of society compatible with the one laid out by Thomas Hobbes in Leviathan - bella omnium contra omnes, a “war of all against all,” in which each individual strives against his fellows for a greater share of finite resources in the pursuit of greater personal liberty. Hobbes’ gloomier perspective on the natural state of Man, compared with that of Locke, provides a different rationale for the social contract: rather than being a natural expression of freedoms that Man enjoys with or without that contract, for Hobbes the social contract is an essential tool for protecting the individual from his society. In this way, it can be seen how unchecked positive liberty creates a need for negative liberty; there is, in fact, a dynamic between the two. At one extreme, positive liberty is unfettered by any structural constraint: de facto anarchy obtains, and the strongest thrive - a scenario Darwinians should find familiar. At the other extreme, the totalitarian state protects the citizen so thoroughly from the expression of their neighbor’s willed desire to curtail her freedom that she is left with no freedom to curtail. Neither extreme is stable - the powerful establish order out of anarchy, and the totalitarian state destroys its own legitimacy as it disempowers its citizenry. Each state of affairs - each thesis - creates an opposing condition - an antithesis. The tension between positive and negative liberty thus constitutes a Hegelian dialectic, in which the embrace of one idea cultivates a contrarian embrace of the other.

Equilibria can be envisaged, and indeed examples of such can be found in the real world, wherein either positive or negative liberty has the ascendancy. It is in the nature of a Hegelian dialectic that no equilibrium remains in perpetuity; the balance is constantly, if gradually, shifting. Giambattista Vico proposed a view of history as cyclical that is consistent with Hegel’s dialectical materialism, and consistent with a view of liberty as the product of competition between evenly-matched actors for finite resources.

Where exactly the equilibrium is now; where it is trending, and how fast; and what this might mean for us as citizens, are all questions worth considering.