Friday, September 02, 2005

Smith on Law and Order, Theft and Punishment

I wish to return to “When the Moral Levee Breaks” by Lee Harris (TechCentral Station, Washington, DC, 1 September 2005), which I discussed yesterday in respect of his assertions that Adam Smith failed to recognise humankind's ‘primordial instinct for theft’ and that, besides a propensity to ‘truck, barter and exchange’, humans have an ‘even more natural tendency to pilfer, rip off, and steal other people's stuff’. Lee Harris goes closer to the theme in his article, occasioned by people in New Orleans pilfering shops (for electrical goods that won’t work because the electricity is off) and breaking into houses to steal whatever they can.

Lee Harris considers such behaviours show that civilisation is very thin in a moral sense and could break down, or collapse – themes repeated in his recent book. There is no doubt that Adam Smith understood all this and that he would not have been surprised at such behaviour breaking out in similar circumstances, anywhere in any society. He often refers to the ‘rapine’ of war, when soldiers freed from constraints of stable society (such as is inevitable in the fog of general war and local engagements in fighting) engage in plundering whatever takes their fancy, including raping women of all ages.

The question is why is this not a general phenomenon? Smith addresses this question in “Moral Sentiments”, (1759), his Lectures on Jurisprudence (1762-3), and in “Wealth of Nations” (1776). People do not refrain from theft of each other’s property solely because they are behind a ‘moral levee’ (a neat but inappropriate metaphor from Lee Harris, connecting his general point to the protective levee’s around New Orleans, which is below sea level and liable to flooding if the levee’s burst).

Smith begins with the evolution of property from there being none to it making its appearance in the Four Stages of society: Gathering-Hunting, Shepherding, Farming and Commerce. When Gathering was the norm, humans lived of what they picked from trees and plants. There was no sense of ‘property’ because the wilderness was lightly populated by human kind – the bulk of it not populated at all for hundreds of thousands of years. If somebody wanted something the stretched up or climbed up to get it; it you wanted something you did the same. There was abundance; hence no need to ‘steal’ or fight over it.

With Hunting (Smith missed out scavenging, but neither he nor anybody else knew much about the lives of the Hominids, a proto-human lineage lasting four to six million years, nor the lives of the early Homo sapiens, lasting about 200,000 years), ‘property’ made is appearance in vague way, via conflicts about the point at which a prey became one man’s and not another’s (when spotted, when chased, when struck by stone or arrow, when mortally wounded, when dead, when picked up or when returned to camp?). One can see that many arguments could follow that sequence, and not a few bloody fights.

With the Shepherding stage, when some animals were tamed and fed and bred close to humans property took on a clearer meaning. Those shepherd societies that resolved these disputes developed ‘laws’ and ‘precedents’, backed with a willingness of the band to execute its forms of ‘justice’. The property of those who had tamed flocks and herds was recognised by the band and punishment inflicted on any person without property taking what ‘belonged’ to others who had property. Smith puts it bluntly: government was formed to protect those with property from those without it.

As flocks and herds grew in number, and men lived off them, both those who ‘owned’ them and those who worked with the owners to protect them, for which they received food and skins for their families, ‘government’ took on the role of protecting the shepherd society from other shepherd societies, as their populations grew and made contact with others nearby. Theft of a sheep, etc., became punishable by instant death, adding a new deterrent to theft, underlined when one shepherd society went to ‘war’ with another because of ‘thefts’ or threats of thefts.

It was when farming began about 10,000 years ago and spread west and east throughout large parts of Europe and Asia that property became established in ‘law’ and moral concept. Farming subsists on distinct and measured tracts of land with boundaries and fences (among other things to keep out the flocks and herds of shepherds – the original cause of the deadly quarrel between Cain and Abel).

Trespass was a ‘crime’. Theft of crops, stores and materials were crimes too. Farmers huddled close to their lands and at convenient places formed small ‘towns’, from which ‘government’ deployed organised force to defend the town dwellers’ property in the surrounding lands. Law goes with Order. Thieves were punished; potential thieves were deterred.

Leaping across the first Age of Commerce (its high point was the Roman empire) and the interregnum of the ‘dark ages’ (for want of space here), the profession of law extended the complex definitions of property, inheritance, contract and obligations to government revenues (to pay for the administration of justice and defence against barbarian neighbours), we arrive to the situation in New Orleans.

In the absence of ‘law and order’ when the personnel who enforce it and helping citizens are engaged in rescue work, what restrains thieves? Well, for some of them they are driven by extreme need (food, clothing, shelter and simple tools to fix their temporary abodes) and this overcomes their natural inhibitions about theft of what does not belong to them, which inhibitions can be moral (‘thou shall not steal’) and just plain fear of punishment if caught and for others theft is a way if life, normally constrained by law and order, and lack of opportunity.

Now, Adam Smith taught all of this from 1748-64 in his Glasgow classrooms; he wrote about it for the world to read in “The Theory of Moral Sentiments” and “Wealth of Nations”. He cannot be accused with any sense of justice by Lee Harris of not understanding what he clearly understood, or of focussing on ‘truck, barter and exchange” and neglecting the consequences of a break down in law and order, i.e., justice, as exemplified in New Orleans this week. Harris is wrong about Adam Smith (who had a Doctorate in Law, DDL) and should correct his mistakes.

Two quotations from Smith’s “Moral Sentiments” will make these points clear:

“A society cannot subsist unless the law of justice are tolerably observed, as no social intercourse can take place among men who do not abstain from injuring one another; the consideration of this necessity, it has been thought, was the ground upon which we approved of the enforcement of the laws of justice by punishments of those who violated them.”


“Man, it has been said, has a natural love for society… Its disorder and confusion, on the contrary, is the object of his aversion…Every appearance of injustice, therefore, alarms him, and he runs, if I may say so, to stop the progress of what, if allowed to go on, would quickly put an end to everything that is dear to him. If he cannot restrain it by gentle and fair means, he must beat it down by force and violence, and at any rate must put a stop to its further progress… mercy to the guilty is cruelty to the innocent” (TMS II.ii.3.6-7, 87).

Lee Harris includes in his ‘libel’ on Adam Smith the side-story of how he kept smugly quiet while a young counter hand in a café was vocally upset at the tv pictures showing looters in New Orleans making off with arms full of stolen property from unprotected shops. Perhaps he should reflect on his smugness; to what extent does such behaviour in times of emergency crises that he pontificated about in his article, give succour to those whose actions contribute to the breakdown of society, its morals and its impediments to mob rule, from which we would all suffer dreadfully?

How much better would it have been for Lee Harris to give public support for the young counter-hand’s moral stance; if the boy cannot learn this from experienced citizens like Le Harris, from who does he learn it and, failing anybody else, what stops him shrugging his shoulder and his morals off them?


Blogger mus said...

In fact, TMS deals very much with the question of how a species as self-interested (selfish?) as mankind can make a society work, and is very clear that what Smith calls the negative virtue of justice is the necessary condition for a society to survive. Smith had absolutely no illusions about human nature.

Brian Ferguson

7:23 pm  

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