Lex Talionis and Environmental Recovery

by John Holbo on August 2, 2010

An interesting Planet Money podcast (link goes to the associated post) about how much a pelican is worth. That is, how much should BP have to pay, per pelican, for wrongfully killing pelicans? How do you estimate dollar damages in cases where there aren’t markets that could give you a reasonable ‘market valuation’ of some degraded environmental condition, and in which laypeople are sort of torn between ‘infinitely valuable’ and ‘I’d pay a dollar’ responses to a survey question? It turns out that the answer is ‘a pelican for a pelican’, at least according to the federal agency responsible for solving this problem. If BP killed 500 pelicans, they have to pay whatever it costs to save 500 other pelicans, or pay for a pelican nursery that will raise 500 pelicans, or something of the sort.

I have a somewhat more than passing interest in the history of lex talionis, so I’m struck by this reversion to what is generally regarded as an intolerably primitive, retributivist formula. An eye for an eye, a pelican for a pelican. Of course, the first thing to note about it is that here it isn’t functioning in a retributivist spirit at all. Quite the contrary, it’s a utilitarian kludge for handling a case in which calculating a util seems too fraught.

Note the oddity of the fact that at no point in the podcast does anyone ask how much a pelican is worth to a pelican [to the pelican that happens to be that pelican]. Suppose someone proposed that it is impossible to value human life in a wrongful death suit, say, because we’ve outlawed slavery (just as we’ve outlawed traffic in migratory birds). That would be a funny sort of argument. But it does show up how our intuitions about environmental value are an odd mix of absolutism (nature is infinitely valuable) and instrumentalism (nature is valuable for us).

Maybe that means we are just monstrously inconsiderate of [better: conflicted about] animal rights in our typical thinking about environmental damage. I actually kinda think so [most days], but I don’t think there’s much chance of a serious paradigm shift that would go deep enough to alter that. So, setting aside that possibility, and moving back down the scale to more practical questions, it seems to me that there might be a way to tweak the ‘pelican for a pelican’ lex talionis principle, to make it more flexible – to make the currency of pelicans more fluidly exchangeable and money-like, in a way that the average American might find intuitive and, if not satisfying, then at least as not-unsatisfying as any formula is likely to be.

Let’s suppose guilt is established, so we are in the penalty phase. Both parties should propose a qualitative remedy. Some specific set of restorative acts or projects the guilty party is to undertake, to make good the harm done. And an estimated price tag to go with. Plaintiff: ‘we propose that the defendant should pay for a pelican nursery that will operate for x years, raising the pelican population by y, at an estimated cost of z.’ If this would be really spectacularly expensive, per pelican, the defense might counter with a more practical, alternate environmental project. ‘We propose to spend an estimated x dollars to do y to improve the health of z square miles of degraded wetlands.’ A jury would get to pick which proposed remedy would stand as damages. The advantage of requiring both a dollar amount and a practical project would be to get you past the imponderables of ‘infinitely valuable’ and ‘I’d pay a dollar’, which they worry about in the podcast. You constitute a small market with two sellers (plaintiff and defendant) and 12 buyers (the jury). The plaintiff has a strong incentive to ask for a lot, but not too much, lest the jury find the proposed project disproportionate (it’s easier for a project to sound absurd than a dollar amount, I suspect). Likewise, the defendant would not want to make some insultingly lowball offer, would not want to offend the jury either with a bargain-basement price tag or a pitifully inadequate-seeming project.

One thing that would make this hard would be minting the required currency, as it were. Your coinage will be a grab bag of mutually incommensurable Things That Would Be Good, environmentally, and you need them in the proper region. It wouldn’t do to make good the damage BP did to the gulf coast by proposing good environmental works in the pacific northwest. But I suspect that environmental groups and agencies (both private and public) typically have a lot of things, large and small, they would like to see done – long wish-list that’s never going to be a to-do list – so they could do a lot of the legwork and paperwork in this regard. They could blueprint potential projects, large and small, and then plaintiffs and defendants could, as it were, select from the menu and present alternatives to the jury for a choice. Anti-environmentalists are always raging against stupid, wasteful, costly environmental measures. But this would get around a lot of that (not that I credit that sort of rage much, but I’m in favor of draining it off if possible). Everyone involved would be healthily incentivized to propose things that are plausible and worthy. Indeed, if there were any really good practical plans for doing something good on the cheap, both sides would be eager to find those things, to tempt juries. On the other hand, you would have to do something to prevent front groups from proposing unworkably inexpensive projects, with sky-high projected benefits, which defendants might want to dangle before juries, to keep their damage costs artificially low.

The biggest problem with this, ultimately, is the competence of juries to decide big, technical questions well. I don’t mean to insult the average juryperson, merely to acknowledge that environmental issues are expert issues. But this is a general problem with cases in which large damage determinations hang by the thread of opinion of 12 non-experts on an expert question.

(I’m sure there are crucial legal facts I’ve trampled in my ignorance. Kindly tell me what they are. I haven’t talked about the civil vs. criminal distinction because that doesn’t really affect my proposal. Obviously it’s perfectly consistent with what I propose to suggest that BP should pay stiff punitive damages, over and above making good harm done. I’m only addressing the question of how you might calculate the degree of harm, in a reasonable way, given the difficulties in doing so.)

{ 50 comments }

1

piglet 08.02.10 at 11:20 pm

I am puzzled why you even mention lex talionis in that context. The pelican rule simply states that a pelican cannot be substituted by something else. Sounds reasonable to me.

2

John Holbo 08.02.10 at 11:25 pm

Yes, piglet, but WHY does it sound reasonable to you?

Presumably just because you think making someone pay debts in kind makes sense.

“From Latin lex + talionis genitive singular of tālio (“retaliation”), from tālis (“of such kind”).”

You like the ‘talis’ bit, so presumably you would be in favor of a law – lex – formulated on that basis. Lex talionis. Repayment in kind. Sound reasonable?

3

MDH 08.02.10 at 11:26 pm

This is roughly a call for standard arbitration, is it not? At least of the type where parties submit proposals and are bound to accept to decision of a board (jury, here) which recommends one proposal over the other, in toto. I suppose a typical arbitration hearing is heard before a professional, so there’s a difference there. Still, as someone who is generally skeptical about “contingent valuation” approaches in economics, I find there’s much to like in this proposal.

As a somewhat off topic aside, I am always pleased to hear about arbitration cases in American baseball, which occur in late Winter / early Spring. The dynamics are very similar. A player submits a proposed yearly salary, the club does the same. Based upon some independent assessment of the player’s worth (of course both sides submit briefs to inform this decision) the arbiter selects one of the proposals. I’m struck by how often, given these dynamics, the difference in price appears to me somewhat trivial. $500,000 here, maybe a million there. Possibly this bodes well for “correctly” valuing the market in environmental restoration.

4

John Holbo 08.02.10 at 11:47 pm

“This is roughly a call for standard arbitration, is it not?”

Yes, I probably should have just said so. That’s clearer. (My mind is always wandering back to ancient Greece where this sort of penalty phase procedure is more standard, so I’m amusing myself by proposing an ancient tweak to an ancient formula. But, of course, its really a timeless tweak to a timeless impulse to ‘make things equal’.)

5

piglet 08.02.10 at 11:58 pm

“Presumably just because you think making someone pay debts in kind makes sense.”

No, this is totally unrelated to “paying debts”. It is also unrelated to “an eye for an eye”. The perpetrator being punished doesn’t make the victim whole. The victim still hasn’t gotten his eye back even if the perpetrator also loses an eye. The pelican case is about damage repair, not punishment (as you point out yourself, the question of punitive damages is separate). We are not discussing that if you kill my pelican, I kill yours in revenge. Rather, the point is that BP should be required to restore the pelican population to its pre-oil spill level.

A more familiar example may be the “no net loss” policy in wetland conservation. A developer who impairs a wetland area has to compensate by restoring wetlands elsewhere. This is not a punishment but a conservation strategy based on the fact that wetland ecosystem functions cannot be substituted by anything else.

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John Holbo 08.03.10 at 12:18 am

“We are not discussing that if you kill my pelican, I kill yours in revenge.”

I think you sort of missed the spirit of my point, piglet. I start by noting that it’s interesting that, although we associate the lex talionis formula with revenge, it is not inherently linked with that. It may help to go back to the ur-source, the Code of Hammurabi, which is interesting for the way it mixes expression of retributive justice-type impulses with no-net-less type considerations quite like your wetlands case. You can, of course, object that the Code of Hamurabi is totally confused and confusing. I wouldn’t disagree. But it remains true, at least as a historical fact, that pursuit of ‘no let loss’ may be regarded as a subset of lex talionis-style thinking, which is all about paying debts, commercially and retributively. You want to make the balance come out equal.

If you just don’t want to call it lex talionis, because it’s annoying, I can quite understand. But I sort of like to expand the term, experimentally, because I think that’s instructive in various ways.

7

Dhananjay 08.03.10 at 12:25 am

John, I’m afraid I agree with piglet here. What’s instructive about “lex talionis” that “making things equal” doesn’t capture?

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John Holbo 08.03.10 at 12:26 am

It may also help to step back and consider that, in your comment, you are implicitly equating ‘paying debts’ with ‘being punished’. At first you say: “No, this is totally unrelated to “paying debts”.” Then you back that up, in part, that by pointing out that we are not ‘punishing’ developers when we make them aid in conservation efforts. Yes, quite. But we do regard the developer as ‘in debt’. (There is a reason why this particular developer, rather than any other economic actor under the sun, is being made to pay the cost.)

9

piglet 08.03.10 at 12:26 am

I admit I’m not getting your point. If I wreck your car I have to pay for its repair, or an equivalent new car. Is that an example of “lex talionis”, and if yes, do you know of any other reasonable way of adjudicating that particular situation that would not be based on “lex talionis”?

10

John Holbo 08.03.10 at 12:35 am

Dhannanjay, I don’t think it’s the most consequential point in the world, but 1) I think it’s helpful to note first how lex talionis doesn’t say ‘take revenge’ but just says ‘make things equal’; 2) the history of lex talionis is tied up in interesting ways with fraught questions about currency exchange, as it were. It doesn’t just say ‘make things equal’ but ‘make things equal in kind’. Often the ‘in kind’ is just inconceivable or unworkable, or destructive. (Standard objections to lex talionis for the way it breeds vendettas and half-blindness on all sides.) So you try to evolve a ‘market’ in which strictly incommensurable and unexchangeable good can be pseudo-commensurated and exchanged, as it were. I’m just noting that the pelican problem has a perhaps unobvious connection with other stuff. Stuff William Miller talks about in his “Eye For An Eye” book, per my old post.

11

John Quiggin 08.03.10 at 12:46 am

There is in fact a rapidly growing market in offsets of this kind, at least in Australia. Here’s the NSW policy

http://www.environment.nsw.gov.au/biobanking/

12

John Holbo 08.03.10 at 12:49 am

Piglet, part of my point is that it’s healthy to regard lex talionis – which is often regarded as a margin and primitive system – as the enduring general case from which a lot of stuff we believe in, and don’t think of as flowing from lex talionis, flows.

In answer to your question: the car case is a paradigm of lex talionis.

But it’s worth adding just a bit. Suppose you drink your roommate’s orange juice. This may be perfectly harmless, not a bad thing at all. You just buy new orange juice when you go to the store later. No harm no foul, as the saying goes. Alternatively, your roommate may be really annoyed to get up and find that there won’t be new orange juice until later this afternoon. Buying two cartons to replace the one may be appropriate, not because the interest rate on orange juice should be high, but because you need to be ‘punished’ for being a bad orange juice thief. We all know that a range of often informal norms for ‘re-taliation’ – i.e. replacing things with other things of the same kind – may apply to roommate relationships. Now, wrecking someone’s car tends to be on the ‘you need to be punished because you’ve violated a serious norm’ end of the scale. But not necessarily. If you dent your rental car and have to pay for that, we tend to think of it as a purely commercial matter (like returning it with an empty rather than full tank). Paying for the dent isn’t ‘punishment’, it’s just a debt.

Lex talionis covers all these cases, insofar as the question is just making judgments of what makes ‘the balance come out equal’ – and then you can, additionally, pile on interest payments or other fees. (I don’t mean just saying ‘lex talionis’ makes these cases all clear. It’s not like a magic, neglected formula for solving life’s problems and incommensurabilities.)

13

john c. halasz 08.03.10 at 12:54 am

This post strikes me as a bit off, insofar as the real issue is not loss to pelicans, (granted that was the smug NPR frame), but damage to ecosystems as a whole, (since an undamaged ecosystem would readily restore new pelicans, etc. to the populations effected). Admittedly, then there is a distinction between the human resource “value” of an ecosystem and the “in itself” value, so to speak. And there are lots of other sources of damage to GoM ecosystems than the salient BP spill, which go unmentioned, (though I’m sure BP’s lawyers will be making perverse arguments to that effect). But still, the gap between the “resources” and the “in itself” view of ecosystems is lesser and different from the gap between an anthropomorphized pelican-value and a mercantile-value. Less implausible, too, I think.

As to lex talionis, it might be useful to distinguish between retributive and reparative justice and thus recognize that the supposed lex was always an admixture of the two motives, ( as it was a matter of substituting pre-conventional tribal customs with official jurisprudence, and the blood-money=guilt tradition was already in force). Even a negative sum retributive punishment still had the function of “equalizing” and thus repairing the “peace”, no?

14

Chris Crawford 08.03.10 at 1:10 am

I’d like to toss in an old anecdote that I heard in the 1970s. I can’t authenticate it, but I got it from, as they say, a reliable source.
The EPA had just established the basic regulations regarding emissions in a specific air pollution district. The rule was simple: if your proposed facility would emit X amount of Y pollutant, then you had to do something else in the district that would reduce emissions of Y by X. A clear example of lex talionis? In any case, the idea worked well until somebody wanted to build a furniture factory in a poor district of Louisiana. The furniture factory would have minimal emissions: just some heavy hydrocarbons from the varnish and similar coatings. It should have been trivial to reduce somebody else’s emissions by that much. But there was a problem: there wasn’t any other industry in the air district. There were no other factories that could provide a reduction in emissions.

This stumped everybody. They couldn’t break the law, but it seemed absurd to block the furniture factory on such a minor issue. But then somebody came up with a brilliant idea. Trees emit lots of heavy hydrocarbons; that’s where the Great Smokey Mountains got their name — not from smoke but the heavy haze from the hydrocarbon emissions of all those trees.

That solved their problem. They purchased a nearby plot of forestland, cut down all the trees, and thereby met their environmental obligations. All hail lex talionis!

15

John Holbo 08.03.10 at 1:17 am

john c. halasz, “This post strikes me as a bit off, insofar as the real issue is not loss to pelicans, (granted that was the smug NPR frame), but damage to ecosystems as a whole, (since an undamaged ecosystem would readily restore new pelicans, etc. to the populations effected).”

Sorry, john, I think it’s your reading of the NPR post, hence my post, that is a bit off. (But I would think that, wouldn’t I?) The idea isn’t that the real issue is pelican loss. (Obviously no one could think that was the real issue.) The idea is that the real legal issue (as opposed to the Real Issue period) is pricing harm, and the pelican case is an example of why that is difficult. If someone negligently knocks down your house: how much was your house worth? There are additionally lots of important issues that the builders who later work to replace your house have to know how to deal with – how to lay a foundation, etc. That’s all important, and it’s not fully separate. How much your house is worth is a function of how much laying a foundation costs, which is a function of how you do that. Still, the value of a house is one thing, the methods of building a house another.

You might say: but what we really care about is building a new house. Yes. But, legally, there’s no way to do that without pricing the old one, especially in a case in which it isn’t practical just to build an identical house.

“As to lex talionis, it might be useful to distinguish between retributive and reparative justice and thus recognize that the supposed lex was always an admixture of the two motives”

I sort of agree with this – as I think I’ve made pretty clear now in comments, if not in the post. It’s an improvement over the standard line that lex talionis = retributivism. But I think it can be improved further by adding: once you realize that lex talionis expresses retributive and reparative impulses, which both flow from a desire for balance (equality, fairness), it becomes a bit harder to see the distinction. At least I find it harder to see what seemed a clear distinction as clear, after all.

16

john c. halasz 08.03.10 at 3:02 am

Er, not quite. The “real” quasi-legal issue, (or political-economy issue), is how to price a basically unpriced commons, both public and natural, when no such commons is priced/represented within the prevailing legal system and its system of property-rights and contracts, and when any realistic assessment of the damage is scientifically incalculable to boot, (since it depends on ongoing and difficult study). The analogy with a house fails, since that is subject to an available insurance contract, and the insurance company will be sure to get its “due”, even if the owner doesn’t or can’t. Not to mention that the costs and benefits of rebuilding a “foundation” are also subject to known techniques and thus readily calculable.

But leaving aside the account of BP as a heavily financialized, risky bad actor within the oil industry, and leaving aside the issues involved in the oil industry as a whole destroying the Louisiana coast and the corruption of Louisiana politics that facilitated it, (estimated costs for effective restoration efforts $150 billion), the more interesting question is the function of “retributive” penalities in disciplining and reforming such oil industry endeavors going forward, as opposed to just attempting impotently some ex post reparation/restoration. That would and will evoke all sorts of howls of apologetic protests and obfuscations from the usual well-primed sources, but the question amounts to how to account for the costs/damages of previously unrecognized but highly consequential “externalities”. (Kinda like how to assess damages for those who’s depredations and dysfunctions collapsed the global financial system). When reparation/restoration is not or no longer possible, then a “retributive” motive takes over, (as with heinous cases in criminal law, involving murders or rapes), and then the question becomes the functional effects of such penalties, and the balance of damages that occur, including to damage to distributed norms, as well as the damage to future potentials. There is a kind of “economy” of Being at stake, the stabilization of which effects the subsequent scope and amplitude of subsequent notions of “justice'” and what might be included under its ambit. And there is a loss of power/wealth/privilege that’s involved in the restitution/retribution which disrupts the status quo ante. Which itself calls forth for new efforts at repair.

So, yeah, I think there is a certain narrowness of approach in the NPR piece, (though no surprise to me, since other than the tubz, NPR is my main source of news and I’ve listened to it far too much), which you, Holbo, take off from, in supposing that such externalities are somehow already provided for and rectifiable within the prevailing legal order, when that order is itself largely amalgamated from previously prevailing interests. That’s “normative” liberalism for ya. When certain unpredictable, but not quite surprising events might disrupt and invalidate that supposed order.

Of course, the BP spill could have occurred also under a regime of public ownership and regulation, even a fairly uncorrupted one. But that too would have entailed a response of penalizing and changing incumbent power-holders and altering the operations of the system that lead to the catastrophe.

But with regard to the balance between reparation and retribution in legal justice more abstractly, I think the biggest difference between the archaic lex talionis and modern legal systems isn’t the notion of equalizing the balance of justice, as sovereign rule and institutionalized law took over from informal, pre-conventional tribal notions of justice, (via the alliance between priests and warriors still dimly visible nowadays), but rather that such sovereign rule and legal order is, mutatis mutandis, no longer covered over by mythological notions of divine origin and ordination, but recognized as a matter of human-made ideology.

17

John Holbo 08.03.10 at 3:27 am

“which you, Holbo, take off from, in supposing that such externalities are somehow already provided for and rectifiable within the prevailing legal order”

slow down, hoss! You make many assumptions about me making many assumptions, john. So let’s start with this one and then move along, as best we can. What makes you think I’m supposing this? Why would I be, or why would I have to?

18

Chuck 08.03.10 at 4:08 am

Here’s two crucial legal facts. The 13th Amendment generally prevents courts from enforcing performance of any services, and instead requires a dollar amount as damages. Lawsuits result in companies paying money (in principle the amount required to accomplish whatever program the jury thinks is fair) but the court can’t make anyone carry out a restitution program.
The other option of course is that the plaintiff run the program, not the defendant. Now, assuming that the “plaintiff” you are imagining here is the federal government (who else can claim to be the legal representative of the pelicans?) you also have sticky problems with enforcement. Suppose BP is ordered to pay $100M to run the pelican nursery for 10 years. Congress never authorizes spending anything, and nothing ever happens. Court can’t do anything about that.

19

joel hanes 08.03.10 at 5:06 am

In a couple months, most of the world’s Whooping Cranes will begin their fall migration to Aransas.

They cannot be replaced.
If the oil kills them, BP’s entire capitalization is insufficient to offset the loss.

20

Chuck 08.03.10 at 5:23 am

Another crucial legal fact was omitted from the NPR story. The Clean Water Act defines damages based on the amount of oil spilled: $1,100 per barrel, or $4,300 per barrel if gross negligence led to the spill.
nytimes

21

Sam C 08.03.10 at 9:35 am

In my character as occasional local Mill-geek, let me note that this kind of pairwise qualitative comparison (by competent judges rather than by juries) is John Stuart Mill’s answer to the measurement problem created by Bentham’s version of utilitarianism.

22

Brett Bellmore 08.03.10 at 10:11 am

Calculating ‘utils’ is pretty much always too fraught. That’s been one of the basic problems of utilitarianism from the start; It’s computationally impossible to implement.

23

Anon. 08.03.10 at 11:21 am

Trees don’t emit “lots of heavy hydrocarbons”, therefore the story is apocryphal.

24

Brett Bellmore 08.03.10 at 11:27 am

Actually, trees do. Never smelled a pine tree? That’s hydrocarbons you’re smelling. Now, if by “heavy hydrocarbons” you mean tar, you’re mostly right. But the sort of hydrocarbons that cause smog?

Absolutely. Look up “terpenes”.

25

ogmb 08.03.10 at 11:58 am

So if they killed my grandma, they just give me another grandma, or pay a grandma nursery to raise another grandma for me?

26

Mr_ Punch 08.03.10 at 2:25 pm

What’s wrong here is the assumption that this isn’t a market solution. In fact, it works like an options market – BP implicitly contracted to maintain some number of pelicans, and now they have to deliver; they’re paying money because they failed to hedge their pelican position. Soon we’ll be trading pelican futures in Chicago.

27

Dhananjay 08.03.10 at 3:38 pm

Thanks for your explanation, John. I see your point now.

28

Zamfir 08.03.10 at 6:49 pm

Mr_Punch, by that logic I am every morning implicitly hedging my exposure to the cold feet market. Soon, I will be able to buy warm feet futures in Chicago, and don’t have to put socks on anymore.

29

Bloix 08.03.10 at 7:16 pm

@Chuck #20
“The 13th Amendment generally prevents courts from enforcing performance of any services, and instead requires a dollar amount as damages. “

This is completely wrong. The premise of environmental regulation in the US is that the polluter can be and is required to remediate the pollution. In doing so, the polluter must propose a remedy (usually it hires a consultant to prepare the proposal), the EPA then either approves it or requires additional work, and the polluter conducts the cleanup under EPA supervision. Courts routinely order polluters to fulfill these duties. For a summary of the law as it relates to oil spills, see http://www.epa.gov/oem/content/lawsregs/opaover.htm (non-oil pollution is addressed by a different statute, known as CERCLA or Superfund.)

@john c. halacz, #16 –
“The “real” quasi-legal issue, (or political-economy issue), is how to price a basically unpriced commons, both public and natural, when no such commons is priced/represented within the prevailing legal system and its system of property-rights and contracts, and when any realistic assessment of the damage is scientifically incalculable to boot, (since it depends on ongoing and difficult study).”

This “real” issue is dealt with extensively in US environmental law under the concept of Natural Resource Damages, or NRD. These can be recovered by government entities known as the “trustee” of a property – either a federal agency, a state or state agency, or sometimes an Indian tribe- and are over and above the cost of remediation. They are intended to capture the loss to the community of the damaged resource.

There’s quite a sophisticated regulatory and economic literature on calculation of Natural Resource Damages, and there’s already been a Senate hearing on assessing NRD from the BP oil release.

You can read the hearing testimony of a US Fish and Wildlife Service representative regarding the determination of NRD from the BP release here:

http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=df0733be-b6f7-47c9-b7fc-b6f4cd404e7f

30

eddie 08.03.10 at 7:17 pm

Would you settle for BP paying for the research and development of GM oil-resistant pelicans that obviate the need for clean water? I’m thinking of an analogy with cholera vaccines. It may be a good or bad analogy but I’m putting it up for discussion.

31

piglet 08.03.10 at 8:28 pm

The EPA had just established the basic regulations regarding emissions in a specific air pollution district. The rule was simple: if your proposed facility would emit X amount of Y pollutant, then you had to do something else in the district that would reduce emissions of Y by X.

I’m not expert in environmental law but I think this is completely wrong. This isn’t how pollution control in the US works. Maybe somebody more knowledgeable can clarify.

32

piglet 08.03.10 at 8:52 pm

John, I still don’t know, and would appreciate your clarification, what alternative there might be to what you call “pay debts in kind”. Sure, if I owe you sheep, I should pay you back in sheep, not in goats? Perhaps paying back goats is more convenient for particular reasons but then we need to have established a conversion between sheep and goats, and this is still a case of paying back in kind. Even if we monetize the transaction, we regard the monetary value as “in kind” for the original debt. What am I missing?

I understood the particular pelican example to highlight the problem of ecosystem (or Natural Capital) valuation (most famously attempted in Costanza et al. 1997, http://www.nature.com/nature/journal/v387/n6630/abs/387253a0.html). Economists tend to say that ecosystems services are hard to quantify because they are not traded in markets but that is a typically superficial understanding. Even when there are markets, they can only give us a price, not a value, and the price need not be related to the value at all (of course that is the basic problem of our economic system, that we have given up caring about values in favor of market prices). Among environmental economists, there are roughly two main schools. The neoliberal school assumes that all forms of capital are substitutable for each other, so that loss of Natural Capital can be compensated by the build-up of man-made capital. This position is also known as “weak sustainability” and it is adopted not because of any evidence supporting it but because of its convenience (politically as well as mathematically speaking). The opposing school (ecological economists, Herman Daly etc.) maintain that substitution is only possible to a limited extent and that sustainability really requires the conservation of a sufficient stock of Natural Capital (“strong sustainability”). The pelican rule is an example of the latter position: a pelican cannot be substituted by anything else; the stock of pelican capital must be maintained. It is the most straightforward and the most defensible approach to ecosystems valuation. Perhaps you can trace it to Hammurabi but you could also simply call it common sense, no?

33

John Holbo 08.03.10 at 11:51 pm

Piglet: “I still don’t know, and would appreciate your clarification, what alternative there might be to what you call “pay debts in kind””

I would recommend William Ian Miller’s “An Eye For An Eye”. It’s a good book (entertainingly written and readable) and google books will allow you to take a free browse:

http://books.google.com.sg/books?id=_RMiOXoLnncC&dq=william+ian+miller+eye+for+an+eye&printsec=frontcover&source=bn&hl=en&ei=NqNYTIDFEMqvrAex_5CPBQ&sa=X&oi=book_result&ct=result&resnum=4&ved=0CCkQ6AEwAw#v=onepage&q&f=false

Or go to the top of the post and click the link to my old post on lex talionis, which is about Miller’s book. I quote a passage in which he is talking about how the institution of money itself may have arisen. Ok, I’ll just c&p:

“One uncanny, imaginative, and not quite dismissable theory by Bernhard Laum (1924), working mostly with early Greek and Indian evidence, claims to find the origins of money and value measurement in the partibility of animal bodies. That so many words for money are also the word for cow or cattle would seem to make the observation trite at least to the extent that a live animal is meant: Old Norse, fé (cattle, sheep, money), and Old English (féoh (cattle, cows, property), from which we get Modern English (fee), are cognate via the effects of Grimm’s law with Latin pecus (cattle), yielding our pecuniary. To be noted too is that cattle and chattel are different dialect forms of the same French word, with chattel developing a more general and money-like meaning of moveable property. Cows and sheep are among the earliest mesures of value; and their ties to the idea of money persist at the most basic levels of our money talk.

But what Laum is after is to show that the idea of the moneyness of animals comes not from their use in normal trade – the unit of a cow or an ox is too large in value, to say nothing of their large mass, to be a regular means of payment – but from their use as sacrificial victims. The place to look for the origins of money, he argues, both as a measure of value and a medium of exchange, is at the temples, in offerings and gifts to the deity. Laum finds that the whole idea of generalized measures of value, the idea of standardization itself, comes from separating out ritually pure animals for sacrifice. Animals of the same species were compared with each other, and from the comparison a normalized type was created, a qualitative norm. Rules of cultic sacrifice generate rules of quality and measurement: we thus arrive at a unit of the standard sacrificial ox, bull, ram, or lamb.” (p. 36-7)

Now substitute ‘pelican’ for bull and ‘conservation’ for sacrifice, and ‘value of nature’ for sacred purity and you realize that the pressure to monetize pelicans may recapitulate story that is very old indeed. Again: not that just noticing this necessarily gives us any bright ideas in itself.

Let me just proceed to your two schools of thought, weak and strong sustainability. I think it’s noteworthy that my proposal is neither. It isn’t adopted for mere convenience and it doesn’t assert – indeed it implicitly denies – that man-made capital can always substitute for natural capital. (So I guess I’m clear of the charge of neoliberalism, at least to that extent.) It does maintain that substitution is only possible to a limited extent, as in the second proposal, but it doesn’t limit that extent to the point of insisting on the strict pelican for pelican formula. The main danger I see with that is that the big issue here in this disaster is the gulf coast itself. A gulf coast for a gulf coast would be what we want. But suppose – god help us – you can’t really get another gulf coast, not like the old one. If there is no substitution possible, then BP gets off scott free, or too free. I can’t be obliged to do the impossible, so I’m not obliged to do anything, if payback in kind for what I have done is impossible! You don’t want to allow the thin edge of the wedge of that excuse to insinuate itself. It turns the whole thing into a cosmic tragedy – which it is – rather than something that BP is obliged to pay for – which it also has to be. (I realize that you probably appreciate this already, but I emphasize that the reason for loosening the pelican exchange principle is not ‘convenience’ but precisely a concern not to allow BP to find it so tight that they just can’t put on the collar of obligation at all.)

What you are really looking for is a way to loosen the pelican principle to the point where you can make sure it can always be applied – never discarded as impossible to apply – without falling into the trap of saying that money can always fix everything. (n a way this is contrary to the history of lex talionis, I suppose, which has a tendency to move in the ‘money fixes anything’ camp. Miller has some interesting discussions of this. Compensation for wrongful death. If you kill a man you must pay his kin. That’s better than endless vendetta, probably, because it’s more socially healthy. But this cannot be used as a hunting license by a rich man who wants to go around killing people for fun. The trick is to find norms that keep you on track here.

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alex 08.04.10 at 9:10 am

Miller’s writings on this subject are fascinating, especially on the ideas around the emergence of proportional compensation as substitute for vendetta. One cannot help wishing, though, that in a situation like that of BP, representatives of the environment were given a licence to hunt down and butcher senior company executives. It might make them [or rather, their blood-spattered replacements] much more careful.

35

Bloix 08.04.10 at 2:20 pm

“of course that is the basic problem of our economic system, that we have given up caring about values in favor of market prices.”

This is utter nonsense. The legal system values things all the time without a care for their market price. Pain and suffering, loss of consortium, lost future earnings or profits, emotional distress, natural resource damages, reputational harm, etcetera, etcetera, etcetera. These are all labels for compensable losses that have no market price.

It’s nice for philosophers to philosophize about philosophical problems, but it would also be nice if they showed some passing interest in the way the problems they’ve identified are handled in the world they happen to inhabit.

36

jhm 08.04.10 at 3:29 pm

I feel out of my depth with most of this discussion (as interesting at it is), but I wonder if it is assumed that the jury could reject both of the proposals? If so, would the same jury get to consider the next set of proposals (a mistrial, hung jury analogy)? Perhaps third party (amicus curiae) proposals should be allowed.

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piglet 08.04.10 at 4:22 pm

But suppose – god help us – you can’t really get another gulf coast, not like the old one.

That is indeed the problem, and here is where I hear some economists chime in: “If only we had a market in gulf coasts, we’d know how to compensate for wrecking that ecosystem.” And they come up with devices such as willingness-to-pay surveys and such to find a substitute for a market price. But it is an illusion to think that you can value something that is irreplaceable. The danger with trying to put a price on ecosystems, as you say, is that it tempts people to think that money can fix anything. The danger with NOT putting a price on ecosystems is that people think if it doesn’t have a price, it’s worthless, not worth preserving it. It’s a dilemma and nobody knows how to solve it. But we can try to come up with some minimum standards, and one of them would be that restoration or at least “no net loss” should be the goal wherever possible.

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piglet 08.04.10 at 4:25 pm

[Should read:] But it is an illusion to think that you can put a price on something that is irreplaceable.

39

John Holbo 08.04.10 at 11:34 pm

You might be happier with a slight tightening of my proposal then, piglet. If you have destruction or degradation or harm, environmentally, and – god help us – this particularly wrong cannot be made right, so that you simply have to opt for some sort of substitution – or else it’s nothing – you at least insistent that the substitution is qualitatively in the same ballpark. My idea of a sort of smorgasbord menu, in the post, is rather ecologically haphazard. Presumably it could be made more rigorous. Make sure that people can only construct ‘healthy meals’ from the board as it were, not just pick some random mix of things that don’t make environmental sense.

Because what you really want is not exactly ‘no net loss’ but good ecology. Your proposal is a heuristic approach to that goal, just as mine is. If you could trade off a bit of wetlands for some fantastic benefit for sea life, presumably there is a point where that trade would be attractive. I don’t insistent that we have to have some totally rationalized metric. Just that ecologists are presumably prepared to say ‘that’s bad but relatively minor’ ‘that’s good and pretty major’, from time to time.

I appreciate that you don’t want to go hurdling down this exchange road, for sound conservative reasons. Conservative as in ‘conservation’. One should default to skepticism when someone asks ‘NOW how much wetlands would you pay for this fantastic new wonder appliance?’ One should stick with ‘no, keep it the same’ as long as possible. Still, at some point such questions must be asked and answered, when the wetlands is already degraded, so that the question becomes ‘how much must be paid for this?’ Probably the best way to do that – at least in cases of post facto judgments – is to ensure that the payments are so punitive that no rich actor will be tempted to regard it as an implicit license. When it’s a question of developers seeking permission to do things in advance the question is more one of having a good overall ecological view of how things work, so that you can be as wise as possible in permitting some things and forbidding others. The price is less the key problem, then, than knowing what to sell and what not to sell. What aspects of the natural world really should be regarded as ‘priceless’? Not all of them, but not none.

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John Holbo 08.04.10 at 11:40 pm

“I wonder if it is assumed that the jury could reject both of the proposals?”

I haven’t gotten that far, but presumably the jury (12 non-experts) should have to pick one or the other of the (expert-certified) options. The only possible reason for them not to do so would be prosecutorial corruption: if the state proposed a pitifully lowball reparations package, because prosecutors were in the pocket of the offending developers. But I don’t think you can write good law that also deals with the problem: what if this law is corruptly applied? You have to deal with corruption by other means. (If, on the other hand, the jury wants to reject because both options are too much, then that’s the defendant’s fault for offering to pay too much. Not a likely occurrence, I think.)

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Bloix 08.05.10 at 2:25 am

42

John Holbo 08.05.10 at 3:28 am

Hi Bloix, a lot of this stuff you link gets talked about – albeit briefly – in the podcast. Namely, what are the actual legal frameworks/theories for handling this. Did you listen to the podcast? Is it your opinion that the podcast gets it all totally wrong about what federal agencies are responsible, what sorts of laws/models apply, so forth?

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John Holbo 08.05.10 at 4:07 am

Quoting from that third link you provide:

“The Interior had previously allowed a “lesson of”
restoration or use value in evaluating natural resource damages.
The court rejected that view because it found CERCLA
was intended to restore or replace the damaged resources in
addition to compensation for loss of use. In addition, the
court held that market values were not the primary indication
of natural resource damages and that evaluation methods
were as useful and important to valuation.”

That part of the pdf (p. 7) seems generally to confirm that the NPR podcast isn’t off-base about the basic facts here. So I’m a bit skeptical of your skepticism. Do you care to elaborate?

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john c. halasz 08.05.10 at 5:41 am

Bloix @ 29 & 35:

Well, it’s good to know that there are at least some legal previsions for addressing the issues arising from the BP debacle. But to imagine that such legal stipulations could suffice to address the extent of the debacle alone is dubious. Yes, there are provisions for communal damages to “natural resources”, but that likely involves estimates of the “exploitation” of those resources,- under current arrangements to boot,- rather than any estimate as to the sustainability of those “resources”,- note the bias of the term already,- which might well be currently incalculable and outside the ambit of the law.

And, “The legal system values things all the time without a care for their market price. Pain and suffering, loss of consortium, lost future earnings or profits, emotional distress, natural resource damages, reputational harm, etcetera, etcetera, etcetera. These are all labels for compensable losses that have no market price.”

Well, yes, those are means of providing a market price for non-market “values”, and it’s hard to argue that they are applied somehow equally and in abstraction from prevailing market price determinations, let alone collectively and in terms of some common good, (if only because actual access to “the law” itself has a market price).

The liberal slogan of “the rule of law, not men” makes sense, in contrast to personal rule,- (“nobody is above the law”),- and as a check on any exorbitant, unchecked privilege. But as an account of law as an entirely self-regulating “autonomous” system, it’s nonsense. Law is always anchored in some basis of sovereign power, as crucial to its enforcement, which it only partially might serve to shape and “define”, and thus always dependent of a political supplement for its operations, both in terms of constituting the sovereign power and its law and in terms of popularly legitimating it, in a potentially unstable relation.

And, similarly, the notion of “equality under the law” refers more to the self-consistency and proclaimed “universality” of the legal system than any actual equality of outcomes or “interests”. Obviously, tort restitutions follow the prevailing distribution of interests and incomes, in their legal calculus, more than any actual “value”, let alone any participation of the commons, public or natural, in “value”.

So, yes, legal technology,-which is really what is at issue,- is nominalistically precise in its particulars, for some good reasons, but that doesn’t mean that it is adequate to handle the immense issue at hand.

My objection to the NPR version was precisely that it amounted to keeping the issue within the confines of essentially private tort law, which I thought Holbo accepted as a frame. Which is the consummation that BP would devoutly wish for. But this is much more an issue of public law than a matter of private damages-and-restitutions. (Ya, that’s more a continental than an Anglo-Saxon distinction). So, otherwise put, it’s more a matter of political-economy than law, and of the powers-that-be behind any application of law.

It was Holbo who put the issue in terms of the archaic origins of law itself, – (presumably because he identifies law with “principles” of “justice”),- but my point was that “we”‘re dealing with incalculable damages within a prior system of legal contracts that effectively doesn’t “properly” take them into account. Hence my point was that the “retributive” rather than reparative function of law comes to the fore. Because it’s a matter of repairing the irreparable, which disrupts any prior legal calculus. Which makes the matter “political” rather than merely legal, unless an implicit political decision is made on behalf of the formerly prevailing political-economic powers-that-be and their “legal” orders. Hence the “punitive” function of the law and its backing power comes to the fore, not for its own sake, but because only as such can the irreparable be acknowledged and cost-wise accounted for, and for its deterrent to effect the subsequent conduct of the entire oil industry. So not only should maximal penalties be exacted upon BP and criminal charges be pursued against both the company and its particular officers, but the company should be subject to a “death penalty” and held in receivership against incalculable future damages, in the fashion of Johns-Manville. (O.K., the company is to far-flung and wealthy to be quite so reduced, but the shackles imposed would be an example for those excessively greedy for oil rents, without regard for the real externalities and costs). Which will immediately provoke the counter-argument that such “punitive” sanctions will raise the uncertainties and thus the costs of such oil exploration and thus reduce their profits, (really rents), and incentives. Ya, that is exactly the point: to force such cost-cutting technological hubris to account for the limits of technology and science and thus to proceed with greater redundancy and thus stability in the engineering and geo-physics than hitherto. That’s part of how one repairs the irreparable. That’s how the uncertain, incalculable function of public law/”authority” should function.

Of course, the U.S. government/state has itself, through its corporate corruption and complicity, been implicated in the spill and the inept response to it, so, in the vein of cynical realism, it might be a bit much to expect it to respond forcefully and efficaciously. But that then-, to suspend such cynicism for a moment,- amounts to the “deterrent” effect of the exercise of public law/authority, “purifying” the law itself.

Of course, it was Holbo who framed the issue in philosophical-speculative terms as to the archaic “origins” of the law as the lex talionis, rather than its current technocratic state. And he wonder why the reparative issues seemed to spill over into the retributive lex talionis. I’ve been aiming at that update. So I mentioned how the “economy” of Being leads to a spill-over from the reparative to the retributive motive, and back and forth. Which is to say, an archaic “logic” of sacrifice. But such sacrificial rituals, whether involving human or animal victims, while involving a self-damaging submission to the mythified “powers” of natural order, also involved an appeal to the potentials of such “divine” powers beyond their fatal “necessities”, even as they were being symbolically manipulated in magic-superstitious terms. (That is at once an effect and a result of symbolic thinking in its chain of substitutions). But, of course, such sacrificial rituals would not have been possible unless there were already a productive surplus to be “sacrificed”. So sacrifice was practiced by a priestly caste on behalf of a dominant ruling elite both as a submission to prevailing “necessity” and as a means of asserting hierarchical order, as only those who could “afford” sacrifice would accrue its prestige. IOW just as the lex talionis is ambivalent between retribution and reparation, sacrifice is ambivalent between renunciation and excess.

So the question becomes, having reduced law to its archaic “origins” philosophically-speculatively, how can the retributive/sacrificial motives of law produce the hoped-for, salutary reparative/restorative natural order/outcome. Under the current legalistic/technocratic political-economy, I don’t see how. But then maybe I’m to cynical, or it’s more precarious than even I imagine.

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John Holbo 08.05.10 at 6:39 am

“But to imagine that such legal stipulations could suffice to address the extent of the debacle alone is dubious.”

I think we can all pretty much grant that the law will not handle the debacle satisfactorily, john. The only question is how bad the legal debacle, following such a debacle, has to be.

“Hence my point was that the “retributive” rather than reparative function of law comes to the fore.”

I don’t deny that BP should be hit as hard, legally, as it is possible to hit BP. But I think this is more of a utilitarian point than a retributive point, and that you are mischaracterizing your own impulses. The point isn’t to make BP, the corporation suffer – it doesn’t have any feelings – nor is it the point to make BP’s executives and responsible agents and stock holders suffer. In some cases, that would be very welcome, but not the ultimate goal re: the whole debacle, which is mostly about the environment; in other cases, I wish poor pensioners depending on BP dividends didn’t HAVE to suffer losses. Though they must. The reason for hitting BP as hard as possible is just that we believe – you do, I do – that the final estimate of the cost will be too low. So for damn sure we ought to make it as high as the system will bear. But that’s not retributivism. It’s a combination of reparative and deterrent impulses. If I could wave a wand and fix the gulf and reasonably ensure that nothing like this happened again – but only at the cost of letting the bastards off the hook, I’d let the bastards off the hook in a heartbeat. You would, too.

“So the question becomes, having reduced law to its archaic “origins” philosophically-speculatively, how can the retributive/sacrificial motives of law produce the hoped-for, salutary reparative/restorative natural order/outcome.”

I think it would be a mistake to reduce the law to its origins merely on the basis of the consideration that it has these origins. In fact, I’m going to go out on a limb further and say that it is a mistake to regard anything as having been reduced ‘speculatively’. Ever. Speculation is just not the sort of thing that does that sort of thing. Let Hegelians (and halasz, if he so chooses) rush in where angels and analytic philosophers fear to tread!

” … how can the retributive/sacrificial motives of law produce the hoped-for, salutary reparative/restorative natural order/outcome. Under the current legalistic/technocratic political-economy, I don’t see how. But then maybe I’m to cynical, or it’s more precarious than even I imagine.”

I have to say: if you even think it MIGHT be possible to use these ancient roots to solve this problem, then you aren’t nearly cynical enough – or not as cynical as I am. For my part, I only noted the connection between I thought it was a real – and somewhat unobvious – link, not because I thought it would, of itself, point to a solution to the problem.

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piglet 08.05.10 at 6:23 pm

I just happened to listen to a student presentation about ecosystems valuation of the gulf coast. They came up with a total value of about 56 billion for the gulf coast ecosystems, and quantified the oil spill damage around 8 billion in the first year.

So now we know ;-)

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john c. halasz 08.05.10 at 10:59 pm

Well, Holbo, you’re the one who raised the matter of archaic “origins” from the get-go, if only by proxy. (And later cited a passage from another author speculating on the origins of money in animal sacrifice, and thus sheerly associatively or paratactically , the origins of blood-money as reparation, rather implausibly, IMHO. There are etymological connections between money and guilt rooted in blood-money practices, as well as etymological connections between blood-sacrifice and bliss or blessedness, but the triangle structure doesn’t persuasively hold. And citing Indo-European philology doesn’t really hold, since the postulated Ur-Indo-European language supposedly arose among nomadic pastoralists on the Eurasian steppe: lots of words for animal and wagon parts, a paucity of words for crops.) But the relevance here is obviously not that I think an archaic myth of origins is recuperable and presently applicable, nor that current legal and political-economic notions, practices and institutions are somehow still fundamentally sharped by such alleged archaic “origins” The relevance is 1) that the archaic level never completely goes away, but persists within the modern. In fact, the “archaic” can pretty well be cashed out as the natural. Modern technological societies has so completely assimilated and dominated nature and natural processes, reversing the prior domination of human societies by the mythified powers of nature, (a Frankfurt School motif), that nature itself has been rendered “archaic” and somewhat paradoxically human beings/societies must assume responsibility for its preservation. And 2) the “archaic” is relevant to reflection upon motives of “justice”, since the latter is largely a transmutation of motives of revenge, and, of course, such motives of ‘justice” are a central part of what we somewhat honorifically are wont to call our “humanity”. But sheer retribution, vengeful bloodlust, is never justified or identifiable with “justice”. The motifs of sacrifice and punishment or privation are connected up with reparative motives qua “making equal”, (though because human beings might have hierarchical as well as egalitarian drives, “making equal” might be cashed out in terms of maintaining relational balances within a social structure, which leads on to issues of the maintenance vs. transformation of such social structures). But then the issue is complicated by the fact that “justice” is never natural: nature is sheerly amoral and norms and values can be predicated only of beings/agents that are in some at least notional sense “free”. (You did at one point speak of the BP spill as “cosmic”. O.K., rhetorical, but still a bit off. We don’t mythify nature, not even metaphysically, anymore, eh?) There is a gap between the human and the natural, which renders any notion of natural or environmental “justice” problematic. But at the same time there is a mutual dependency and connection between the human and natural, once famously dubbed a “metabolism”, which reflection on the “archaic” roots of the matter might usefully serve to bring out, if only to recognize the limits imposed on what can and must be done to “equalize” the situation, to “repair the irreparable”.

My point to Bloix was, no, we really don’t have an off-the-shelf legal technology that can adequately address this sort of situation, and the endless litigation that will ensue realistically will redound to the relative benefit of BP, going by past precedents. And, in some sense, we can’t have any adequate legal technology, because there is really no way to incorporate the “value” or “interests” of nature, in and of itself, immensely complex, and only half-way knowable or definable, within a system of legal and economic representations and exchanges. (Nor are lawyers and courts necessarily adequate to or capable of rendering judgments in these matters). Cashing it out in terms of the monetary/economic value of natural resources is already on the slippery slope towards obtuse verbiage about “natural capital”. (The classical political economists never identified land, i.e. natural resources, with capital, and for good reason: rents need to be distinguished from profits). Which is why I said the issue is really a public and political-economy matter for redress, not a narrowly legal one. And these sorts of situations of ecological insults and resource constraints will come ever increasingly and recurrently to the fore. (There’s something of a wake-up call here, eh?) Of course, there are a host of policies that might be proposed, carving out wild areas and limiting human incursions, extending the definition of commons over against oligopolistic IP, precautionary and protective regulatory regimes, Pigou taxes, etc. But the point I was limning about “retribution” as an aspect of reparation was not just that it was a matter of compensating for the past damages that have occurred and thus “making equal”, (which, given the aforementioned incommensurability involved, isn’t literally possible), but rather that the issue of reparation (of something literally partly irreparable) opens onto a futurity and its potentials. The penalties, punishments and “sacrifices” imposed would be partly justifiable, not as just as due compensation, but as transforming or redirecting those future horizons in which such events are dealt with. An issue all the more plangent because a corrupt state, of the corporations, by the corporations and for the corporations, was thoroughly complicit in the disaster. (Um, walruses in the Gulf of Mexico as part of filed response plans?) Nor is “deterrence” quite the narrow “utilitarian”,- (though, again, I think you mean consequentialist),- issue you might be making it out to be. What is to be deterred, more generally, is the abject failure and abdication of responsibility all round, not just the future connivings of the malefactors of great wealth. And, again, maintaining the deterrent function of the “authority” of law is a quite general consideration, since any legal order, however adventitious its relation to “justice”, is anchored in a sovereign power qua organized monopoly of legitimate violence and its enforcement capacity, such that maintaining “respect” for the legal order is essential to the very existence of that legal order, (though, again, at least minimal considerations of practicability and legitimation, and not just coercive force, are essential to its sustenance as well). But then again, the state and legal order are essential to the emergence of a deliberative public sphere, which can come to contest and oppose the former. Which, in turn, is why the latter can’t be reduced to the former. But none of the above is reducible or derivable from any narrow utilitarianism. Still, “retribution”, punishing the bloody bastards, is part of the motive-spring of the whole set-up, just as the function of the sovereign state is to balance out such political conflicts. But retribution is never an end in itself.

One of the basic functions of the *modern* state is as a risk-absorber of last resort, (though that is all too easily perverted into a risk-incurer of first resort). It provides a kind of social insurance for what is uninsurable, and means of remediating the irremediable. So, e.g., modern governments guarantee bank deposits to prevent bank-runs in economic crises, since there is actually no such thing as insuring financial assets and no actuarial or market price for such insurance. In turn, the state takes over a regulatory function from market participation to reduce risks and “moral hazard”. Environmental and resource constraint issues are another obvious case in point. It’s a matter of recuperating the relative autonomy of the state, in public-deliberative processes, so as to fulfill its regulatory functions in a definable public, common good or interest, over against the capture of that power by concentrated private interests. And it’s because of the increasing severity of those issues that I end up being an ambivalent quasi-Hegelian statist. But realistically, of course, I’m not expecting much good to come of the BP disaster. The Obama administration, (which is just now already spinning to minimize the damages), in particular, and the general state of U.S. politics and economic structure afford ample evidence to underwrite utter cynicism in that regard.

I don’t think you should be quite so ready to sneer at philosophical speculation (or Hegel for that matter), or think that Analytic philosophy provides immunity from such sins. Obviously I don’t think the world can be “reduced” to such terms. (Though I meant “reduced” like in phenomenology, i.e. bracketing, so that the issue could be examined from a specific perspective). And obviously I don’t think “motives” translate forthwith into actualities or practicable actions. But they can’t be dropped out of the equation altogether, without loss of sense, either. Earthly, political “justice” is so contradictory and conflicted that it is essentially “impossible”. That’s why even for atheists its consideration tends to take on a religious coloring: we speak of “redeeming” claims to “justice”. But we don’t cease to struggle to come-to-terms with such issues for all that. (You already know that I don’t think a “foundational” theory of justice is of much use, or validity). As for speculation, it’s by no means an inherently irrational approach. It amounts to rationally to adopting a provisional exploratory stance toward matters, when our concepts are as yet inadequate and adequate evidence is sparse or lacking. Consider it preliminary to more “proper” abduction. And as for Hegel, you should be well enough read in him to know that his notion of speculation partly cashes out as “rational reconstruction” for dusky owls, and, at any rate, is closely tied to that other key term of his, “experience”. And, in fact, Hegel, in his early Jena writing on the alienation and reconciliation of the criminal, which Habermas was so enamoured of, provides a good model for “retribution”, anchored in the concern for securing and acknowledging socially recognizable identities amongst participating agents. One that is proof against utilitarianism, one of the standard criticisms of which is that it can provide no adequate criterion for the separateness of persons. Of course, such a notion and model of recognition doesn’t answer how the human embeddedness in nature and responsibility for its could be incorporated into such social recognitions. Except perhaps for the slight hint that obscure others so embedded might be harmed by our reckless disregard.

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John Holbo 08.06.10 at 1:08 am

“Well, Holbo, you’re the one who raised the matter of archaic “origins” from the get-go, if only by proxy.”

Yes, but that doesn’t mean I’m interested in philosophically-speculatively reducing what we’ve got to the other stuff. Raising. Reducing. Two different things.

I see now that you were using the term in Husserl’s sense, but that, in a way, only makes it worse. Husserl thinks that, phenomenologically, things can be very strongly ‘bracketed out’, and that what you’ve then got in brackets can be studied in substantially autonomous fashion. But it would be bizarre to think that you could ‘bracket’ out the present issue in so hermetic a fashion as Husserl believes phenomenological stuff can be bracketed, no? Why assume I am bracketing in this way, since I never said so, and since it turns my post from something possibly sensible into something obviously nuts? Why interpret me as saying something crazy when it would be easier to read me as not-crazy?

“I don’t think you should be quite so ready to sneer at philosophical speculation (or Hegel for that matter), or think that Analytic philosophy provides immunity from such sins.”

“As for speculation, it’s by no means an inherently irrational approach. It amounts to rationally to adopting a provisional exploratory stance toward matters”

Yes, speculation is provisional, that is why I warned against thinking things have been reduced [past tense!] by this means. No solid results have been pocketed while we are still speculating. That was my point. (Nothing wrong with speculation, per se, of course. Just with thinking that by speculating you have reduced something.)

You and I go round and round, john. Probably I should not take the bait, but don’t you see the dynamic here? you make objections by assuming that behind my posts there is some stupid thing, to which you object, but which my post provides no warrant for thinking I think. (This whole ‘bracketing’ business is a perfect example.) And I do the whole straightfaced tu quoquoe thing right back, and round and round. I always do that by pretending that the reason why you have attributed some thought to me – even though I don’t express it – is that you must think the thought is plausible. Because otherwise you would be being terribly uncharitable, attributing it to me! When the truth is that I know you are just being uncharitable in your reading. And so I am being uncharitable right back. Lex talionis. Probably we should just cut it out. What do you say?

You think my philosophical personality – my whole approach – is sort of warped in certain ways, some toxic neoliberal analytic philosophy pathology. And that’s fine. That’s your opinion, and you are entitled. But, since I don’t actually assume that my philosophical personality is warped in these ways, it’s not helpful to take these dire flaws as premises in your arguments, in effect. Your critiques of my posts read to me as circular reconfirmations of your worst suspicions about my philosophical bad character.

How do things look to you? Honestly. I know my style of response to your comments annoys you. But can you see how your style of comments seems unhelpful to me? (I make it sound like you started it. Well, maybe I started it by being a smartass. But I think we are locked in an unhealthy dynamic, whoever started it.)

I’m not really responding to your latest comment here because I’m a bit confused by it. You seem to say that there is something implausible about my genealogical musings, but you don’t really say (I think) what is implausible about it, or why. Your own observations about the likely relevance of this stuff seem fairly moderate, ergo conformable with my own sense of their likely relevance, ergo not obviously at odds with what I myself said. So maybe we aren’t even really disagreeing about the point of doing a bit of back-of-the-envelope genealogy.

“Which is why I said the issue is really a public and political-economy matter for redress, not a narrowly legal one.”

I’m not sure who you are arguing with here. Who do you think thinks the issue here is really a narrow legal one?

To end on a somewhat more positive note: I do agree with you that harnessing retributive outrage, even though retribution isn’t really the proper point, is a good thing because BP is inevitably going to get off too lightly, and the larger ramifications are so dire.

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Nickp 08.09.10 at 1:28 pm

Brown pelicans are protected under the Migratory Bird Act. According to this website, fines for organizations can be up to $10,000 per violation, and fines are additive. So, I guess that if it can be proven BP killed 500 pelicans in US territory, the fine could be $5,000,000.

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chris 08.10.10 at 6:03 pm

Per violation or per pelican? If you strangled 500 pelicans with your bare hands, one at a time, that would clearly be 500 violations, but if you commit one act that kills 500 pelicans all at once (or all as a result of the one act, even if the actual deaths are not simultaneous), ISTM that you could argue that’s only one violation.

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