Monthly Archives: May 2014

David Hackett Fischer’s “Fairness and Freedom”

by Dave Mathwin

I first posted this two years ago, but recently came across a link to a study on New Zealand’s relationship to globalization. I include this new information, which only confirms Fischer’s keen analysis within the text under the “Immigration” section below.

And now, the original post . . .

A few years ago Fischer blew me away with his classic Albion’s Seed, which for me is far and away the best book on colonial America out there.  In that work he demonstrated a remarkable ability to go from broad sweeping general statements to minute subtle detail.  Fairness and Freedom does not quite match that standard, but once again Fischer succeeds remarkably in a subject rarely, if ever, explored before.

The book looks at the two open societies of the United States and New Zealand.  While this may seem like an odd pairing, both countries

  • Share basic democratic values
  • Were colonial societies, with the vast majority of their settlers coming from England in their early formative phase
  • Have existed in relative geographical isolation from the main events in Europe during crucial periods of their history
  • Had early settlers needing to deal with native populations.

Our shared history means that someone from either country could feel more or less at home in either place.  But the book arose from some keen observations Fischer made while visiting New Zealand during a political campaign.  He noticed how frequently the major candidates used the words “fairness,” or “justice,” and contrasted that with the American lingo of “freedom,” and “liberty.”  He followed that rabbit hole and discovered how these different emphases have subtly shaped each society in a variety of ways.

Here we see the similarity in his approach in Albion’s Seed, where he takes a idea and runs with it over a large swath of time and space.  How has this subtle yet important differences in values shaped each society?

Origins and Geography

  • In NZ, the Maori tribes were themselves not native to the land, and had cultural memory of their own immigration to what know as “New Zealand.”  Furthermore, warring tribes had nearly destroyed each other before the English arrived.  Thus, the Maori had 1) already learned about cooperative living, and 2) had an immigrant identity themselves
  • In America, American Indians had no memory of any migration to the continent, which, if it happened, happened perhaps 10 thousand years ago.  Their mythology had strong elements of their own existence arising “from the earth itself.”  Thus, they had a much stronger tie to the land than the Maori of NZ.  Furthermore, the abundance of resources and space meant that tribes did not need to work out their problems to survive.

Different Kinds of Settlement at Different Times, for Different Reasons

  • The bulk of formative settlement happened in America as result not of economic oppression but lack of liberty to “worship as one pleases.”
  • The bulk of settlement in NZ came from a population that felt the injustice of early Victorian industrial society.  Their main concern was the righting of wrongs, not increased liberty.  In this sense they inherited the old British notion of “fair play.”
We see this reflected in the different visions each society produced — or how they idealized themselves.  Walt Whitman wrote,
From this hour I ordain myself loos’d of limits and
imaginary lines.
Going where I list, my own master total and absolute. . .
I inhale great draughts of space,
The east and west are mine, and the north and the
south are mine.
I am larger, better, than I thought
– Song of the Open Road
Whereas New Zealand’s W.H. Oliver wrote in “Counter-Revolution”
Did it go wrong just about a hundred years ago?  A ramshackle self-appointed cast-off elite of first comers, promoters, bent lawyers and sham doctors, set it up for the themselves, a gentry of sorts, saw it collapse and crept away with slim gains . . . Something had to be done.
Fischer does not neglect the fact that America’s geography lends itself much more readily than New Zealand’s to Whitman’s expansive idea of space and freedom.
Different governments formed out of these different visions.  America embraced Federalism, which allowed for and fostered regional differences and different spheres of influence for different groups.  NZ embraced a more national model of “all for one, one for all.”

Civil Rights

Both countries had minorities fight to gain their rightful place in their respective societies.  In looking at the Civil Rights movement, Fischer observes that one key to its success was King’s emphasis on freedom.  King, Fischer notes, “understood a deep truth about America.  Equality divides Americans; freedom unites them.”  Once again, the Maori of NZ focused on  equality, which has much more resonance there.  The same holds true of the feminist movement.  In America, women fought for rights by putting themselves in competition with men.  It had/has a more militant, combative approach, consistent with the concept of Federalism.  In NZ, key feminist leaders saw their role differently.  Anna Logan Stout said that,

The real power of the women’s vote in New Zealand is not in opposition, but in its harmony and cooperation with the men’s vote.

Immigration

Throughout the book I had the impression that Fischer harbors a preference for the NZ approach, but immigration may have been an exception, where their respective emphases on Liberty and Equality bear very different fruit.  American stances on immigration have varied, but we have generally been much more open to many more people than NZ, where they looked for specific kinds of people they were sure would “fit in” to their society.

Some historians have remarked  that settler societies, though they often originate from those seeking to escape the motherland, sometimes seek to “outdo” their homelands.  With immigration, NZ has unconsciously created a country that functions in some ways like one of those exclusive Victorian clubs the original settlers would have hated back in England.

In foreign affairs also, America has stressed freedom of action, while NZ has emphasized cooperation.

(And now the addendum)

Recent studies on New Zealand’s attitude toward immigration reflected in its attitude towards globalization.  The study says that,

A report in 2012 by The New Zealand Initiative drew attention to New Zealand’s seventh position among 57 countries for having the most restrictive FDI regulatory regime. This was largely due to New Zealand’s economy-wide screening regime and the broad definition of ‘sensitive’ land. Treasury has confirmed that there is credible anecdotal evidence that New Zealand’s regime is having a chilling effect on inwards FDI investment, but the materiality of this effect is an open question. It is doubtful that the damaging Crafar farms case would have triggered regulatory barriers in other Anglo-Saxon jurisdictions or comparable Asian countries.

New Zealand’s Overseas Investment Act further detracts from the country’s ‘open for business’ image by starkly asserting that it is a privilege for foreigners to be allowed to own or control sensitive New Zealand assets. This is in stark contrast to the explicitly welcoming approach widely taken elsewhere.

Statistics show that New Zealand has largely missed out on the expansion of global FDI since the mid-1990s. Both inwards and outwards stocks of FDI peaked as a percentage of GDP more than a decade ago in New Zealand, while world stocks continued their upwards climb. Between 2000 and 2011, New Zealand’s rank on UNCTAD’s FDI attraction index slumped from 73rd in the world to 146th. Hong Kong and Singapore have been in the top five throughout this period.

The full study is here.

Military

This section may have been my favorite.  Fischer traces the differences in liberty and equality into how each military fights and organizes itself.

The U.S.

  • Emphasizes freedom of action for junior officers.  Those in higher ranks try and keep their distance from these officers so as not to interfere unless truly necessary.
  • The best and brightest soldiers are shunted to smaller elite units or branches of the service
  • Their main strength in war has been adaptability and quick response

In New Zealand

  • Serving in the infantry isn’t for the grunts, it’s considered a badge of honor
  • Officers of nearly all ranks are expected to “lead from the front” and join the men in the fighting.  Distinctions of rank do not hold the same importance as in other armies.  In W.W. II, for example, a British general complained about NZ troops who did not salute him.  “I’m sorry sir,” replied a NZ officer, “but if you wave to them I’m sure they’ll wave back.”
  • The key virtue of NZ forces over time has been their strong unit cohesion and stubbornness
What makes this work similar to Albion’s Seed is his emphasis on the persistence of cultural values over time.  We are not free to reinvent ourselves, but we should do what we can to understand ourselves.  The values embedded in our societies impact us ways we may not be aware of, and that’s justification enough for  Fischer’s enjoyable and insightful work.

12th Grade: The Justice in Due Process

by Dave Mathwin

Greetings,

For our final unit we have been looking at tort law, which deals with civil damages and penalties from companies to individuals.  This gives us a chance to examine some fun and controversial cases, but it also gives insight into how one applies basic democratic concepts of fairness.

We looked at the McDonald’s “Hot Coffee” case last week, where many of the students decried the verdict where a jury awarded Mrs. Leibeck more than 2 million dollars.  Many students applauded the fact that a judge lowered the damage amount to around $450,000, which in their eyes seemed more reasonable, though still excessive.

This week we looked at the case of “State Farm v. Campbell,” decided in 2003.  The case had its origins in an accident caused by Campbell.  Over a period of years, State Farm hung Campbell out to dry, which was bad enough.  Subsequent investigations showed, however, that State Farm had a nationwide policy of targeting lower income, lower education clients for systematic fraud.  Their reasoning appeared to be that they would not fight back.  So incensed were juries in this case that juries assessed State Farm with a $145 million in punitive damages.  Most students agreed that though the amount was large, the verdict seemed fair given the egregious nature of their conduct and the fact that it proceeded from explicit policy within State Farm on a national level.

By 2003 the Supreme Court got involved, however, and overturned lower court verdicts, putting certain rules in place that cap the amount of damages courts can award.  Consumer advocacy groups cried foul, business interests cheered, and some wondered what exactly the Supreme Court was doing by hearing the case in the first place.

As to last issue, the Supreme Court intervened on the basis of the Constitutional guarantee of “due process of law.”  But this begs the questions, “What is due process?”

Two basic views exist on this subject:

  • The more “conservative” view holds that “due process,” means you get a fair “process,” in your case.  Did you get a lawyer?  Did the judge act appropriately?  Was the jury properly empaneled?  If you have these elements in place, you received your guarantee of “due process.”
  • The more “liberal” view believes that “due process” goes beyond the process itself to a basic concept of general fairness.  Specifically in the State Farm case, State Farm argued that it cannot receive due process if it has no way of anticipating what its punishment might be.  A defendant on trial for robbery has a reasonable idea of his sentence might be if convicted.  But in tort law cases companies subjected themselves to the “whims” of the jury with any possible outcome.  They argued that the Court should devise clear rules for juries in the awarding of punitive damages.

By a 6-3 vote, the Supreme Court agreed with State Farm.  Interestingly, the three dissents came from opposite ends of what we usually consider to to be the political spectrum, as “Conservative” justices Scalia and Thomas joined “liberal” Justice Ginsburg in stating that, 1) The Supreme Court had no real jurisdiction in this case, and 2) Even if they did, a belief that the fine was too high is no compelling reason existed to overturn the jury’s verdict.  Ginsburg, I believe, made the “conservative” argument that if Utah (where the case originated) wanted to put a cap on damages they could do so through their legislature.

One reason why I like looking at these two cases is that they often produce a healthy tension, especially for more conservatively minded students.  Most in class argued that the McDonald’s case shows that Americans are too litigious, irresponsible, etc., but many of these same students also decry “judicial activism.”  Well, “judicial activism” of a kind changed the verdict of the jury in both the McDonald’s and State Farm cases.

Also, Conservatives generally tend toward the “pro-business” side of questions, but in these cases supporting juries meant supporting the “little guy” and not “big business.”

And this raises another broader question.

Juries, like any other institution, have a mixed history.  But practices such as trial by jury have long been considered pillars of free societies.  But the power of juries also hints at the fears of some of the founders on the role of the “common man” with difficult questions.  Many at the Constitutional Convention sought to isolate federal government from the vagaries of the “mob.”  LIkewise, do we believe that juries, rather than judges, are the surest guarantee of liberty?

This raises a still broader question, one that has lurked in the background of the entirety of this whole year:  Is democracy best thought of as a process, or as a result?  How we answer that question might depend on the circumstances.  Most would not call a people “democratic” if 51% of them voted to remove freedom of speech.  But many also do not like the idea of unelected, appointed officials overriding “popular” legislatures, such as when a Virginia judge recently overturned Virginia’s “marriage amendment” passed through its legislature.  Our own system of government was set up precisely to provide this kind of give-and-take, but the emphasis must be in one direction or the other, and we must choose.

This will be the last update of the year, and I want to take this space to say a huge thank you to all the students, all of whom I have taught for at least two years, and some for five.  I’ve had a wonderful time and learned so much from them.  Thank you also to all the parents who have offered so much support to their children and the school.  Many blessings to all,

Dave

 

“. . . silly imprisonments and silly damages . . .”

by Dave Mathwin

Books like Crime and Punishment in Early Maryland can tend to have a gawking quality.  “Would you look at that!  They branded someone for 9780801854248stealing a pig!   Hey, look, they talk different from us!  Aren’t they funny?”

Now there are certain pleasures in gawking, and some things in history call for it.  But I confess a natural suspicion of such books, and I feel authors miss a great opportunity when they employ this approach.  Yes, look at the “accident” on the side of the road if you want to call it that, but also see why the accident happened.   Such an attitude also smacks of superiority, and no one likes to hear a smug person talk for 350 pages or so.

This book usually avoids the smug attitude, but leaves other stones unturned.  Not every book has to do everything, but it seems to me that anyone can compile a list of laws and punishments.  We ask our authors to do more, to be artists, to spur on our imaginations, and so on, and this author Raphael Semmes fails to do.  Still, the book raises some interesting questions and presents a vision of colonial America that may be hard to swallow for some.

The books starts out with a chapter on the “majesty of the law” to set the tone of the book.  Those that criticized local judges or magistrates with “bad language” would routinely face fines or corporal punishment.  Of course nothing like this would ever happen today, and I’m guessing Semmes starts this way to startle the reader and get us to gawk a little bit.  As to why colonial Maryland did this, Semmes hints at the likely reasons (without exploring them) by titling his chapter, “The Majesty of the Law.”  Maybe the colonists rendered these verdicts to protect the idea of community itself.  Their legal representatives embodied themselves. So maybe the magistrates were not starchy shirts but protective of the people’s law. I stress “maybe” because I lack knowledge in this area, and Semmes could help me out by offering a thesis of his own.  Maybe I would have disagreed with his thesis, but at least I would have something to chew on.

Again, the overall tone Semmes creates is one of undue harshness.  If I’m right about this, I think he misses the bigger picture.  At times he thinks verdicts were too harsh, but at other times he frowns on the court’s clemency, i.e., “If ever a man deserved the death penalty, surely it was Jacob Smith, but the court instead granted mercy, etc.”  The most fascinating sidelight for me was Maryland’s practice of “claiming benefit of clergy.”  Basically, back in the old country, clergy could be tried for crimes but claim his priestly status as a protection against the death penalty.  Maryland allowed even layman to make this same petition, which struck me as odd especially for the most Catholic of the early colonies.  Apparently as the printing press came into greater use in the days of Henry VII more people could read, and so more people knew about and claimed this “benefit.”  Those that asked for this special exemption would receive a branding on their hand to indicate the mercy shown, and also a mark in a ledger, for one could claim the exemption once and once only.  While I’m glad that Semmes mentions the many examples when this happened, he treats the background and rationale in one paragraph, which strikes me as an significantly missed opportunity to explore something totally foreign to modern readers.

Semmes also mentions many cases where an apology changes everything.  One example had a man about to receive a heavy fine and imprisonment for cursing out a judge.  After the verdict was rendered, he apologized, stating that, “I must have been drunk at the time!”  The judge then reduced the penalty drastically with an “aw, shucks” shrug and sent him on his way.

I think Semmes seeks what most of us moderns would, a code where law, inflexible law, reigns supreme over the context and personality over those involved.  We want our Justice blind.  But when we see a law code that at times seems too harsh and at others to lenient, we know we are seeing law enacted where personal bond and communal accountability trump the exactness and blunt instrumentality of law.

The system Semmes describes has real disadvantages.  It has more inherent possibility of favoritism, corruption, and so on.  But this informal approach to law also has advantages, on which Semmes entertains no speculations, no lofty thoughts.  Think, for example, about parents with their children, where their knowledge of their personalities, the context, and other factors can lead to more nuanced judgments.  Could this work in the state?

For that I call to witness G.K. Chesterton.

The Club of Queer Trades is far from Chesterton’s greatest work, but perhaps his most entertaining.  One of the main characters is Basil Grant, a retired judge who “went mad” on the bench.  Chesterton writes,

He accused criminals from the bench, no so much of their obvious legal crimes, but of things that had never been heard of in a court of justice, [such as] mostrous egoism, lack of humour, morbidity deliberately encouraged. . . . He said to a man convicted of a crime of passion, ‘I sentence you to three years imprisonment, under the firm and God-given conviction that what you require is three months at the sea-side.’

Screen-shot-2009-09-14-at-15.31.27-278x300Towards the end of the book Basil expounds his philosophy:

Years ago, gentlemen, I was a judge; I did my best in that capacity to do justice and to administer the law.  But it gradually dawned on me that in my work, as it was, I was not touching even the fringe of justice.  I was seated with the mighty, I was robed in scarlet and ermine; nevertheless, I held a small and futile post.  I had to go by as mean a rule as the postman, and my red and gold worth no more than his.  Daily there passed before me taut and passionate problems, the stringency of which I pretended to relieve by silly imprisonments and silly damages, while I knew all the time that they would have been better relieved by a kiss, or a thrashing, or a few words of explanation, or a duel, or a tour of the West Highlands.

To my great delight, there is such a thing as the Basil Grant Society.  Score one for the internet.