28 August 2019

"Blinded by the Light"

Only a few weeks after watching the Beatles-themed Yesterday, several of us went went to see Blinded by the Light featuring the music of Bruce Springsteen. Like the Beatles's songbook, music of The Boss functions like a narrator in Blinded by the Light. Yet more than we saw in Yesterday, Springsteen's oeuvre captures the heart of young Javed (played by Viveik Kalra) as he navigates life as a second-generation Pakistani in 1980s working class England.

Decades earlier Javed's father and mother, Malik and Noor, emigrated from Pakistan as a young couple and now live with their three children in Luton, a small city in southeastern England. Malik's goal is to maintain a traditional Pakistani patriarchal family in an increasingly egalitarian England. His father's goal for Javed is upward financial mobility and for his two daughters a good match made by dad and mom. All the while Malik and Javed endure daily humiliations from the young members of the National Front who live in their neighborhood.

Upon entering high school, Javed's desire to write is encouraged by his teacher, to the great consternation of his father. Without friends, until he meets Roops, a Sikh and only other South Asian in the school, who introduces him to the music of Bruce Springsteen, Javed seems destined for a crushed will or an explosive blow up. Javed finds in the working-class music of Springsteen a voice through which he channels his inner and outer conflicts into writing that eventually lands him a scholarship at university.

Loosely based on the life of Sarfraz Manzoor, Blinded by the Light features plenty of situational humor, personal humiliations, and an ultimate triumph including reconciliation. It is regrettably marred by the one-dimensional, poster-board characterization of the Tory parents of Javed's girlfriend. I found even that forgivable, however, because of the careful interweaving of Springsteen songs into the foreground of the film. It even encouraged me to listen to my Springsteen albums at home.
I was also interested to see how the manner of dress of Pakistani Muslims was more similar to Indian Hindus than to the Arab Muslims of the Middle East. 

In any event, catch it while you can.

27 August 2019

Lurking in the Shadows

I left off posting about Chapter 9 municipal bankruptcy with a warning here that deep structural reasons account for the phenomenon of "debt-overhang" that dooms many American cities to an upcoming stay in financial purgatory. (And their immobile taxpayer-citizens to years of municipal hell.)

You can read a short post about "debt-overhang" here.

So what's new? Well, nothing really, except that my warnings here and here about the parlous situation of the City of Chicago have been clarified and amplified by a Windy City insider. You can go here to read "Dichotomy, Demographic Transformation, Urban Renaissance & Bankruptcy" published in the well-respected Data Analytics Illinois.

This is not drive-by shooting. It is a painstaking account of where Chicago stands. In short,
As the state’s economic engine, Chicago’s pension problems demand a fix beyond short term strategies that compound the longer-term problem. After decades of corruption and mismanagement, officials cannot tax or borrow their way out of the fiscal crisis.
But, unlike much of what we read on the internet, this conclusion is supported by careful analysis and posits a solution. The solution is too long and carefully laid out to summarize in this post so I commend the entire piece to the attention of my readers, especially those who live in Illinois. (Of course, there are other American cities in a similar boat that don't have the potential of Chicago to work their way out of it so beware if you live in a number of cities in California and Connecticut.)

22 August 2019


A few days ago the New York Times reported here that President Trump is considering tax cuts to spur the economy. It seems unlike that further reductions in the marginal income rates or even cuts to taxes on capital gains would make much difference to an economy that's chugging along rather well. Cuts to the so-called "payroll tax" were reported to be on the table  Another report here says they're not being considered. Only time (and Twitter) will tell.

"Payroll taxes" are a euphemism (or better, Orwellian doublespeak) for worker contributions to Social Security. The most recent occasion for cutting what is needed to keep Social Security afloat was by President Obama in the early years of this decade. I wonder what our current president had to say about that move?

In any event, you can read what I said about it here. I fully stand by what I wrote then:
The Internet and the chattering political class are all in an uproar about yesterday's agreement by the House Republican caucus to a two-month extension of reduction in what the media persists in euphemistically calling the "payroll tax." Here's today's New York Times report. Perhaps only once have I heard any news report on television or radio tell the audience what this tax funds: Social Security (and Medicare).
Republicans have been spewing venom since the election of President Obama about the $14 trillion U.S. deficit. That's chump change. The unfunded benefits of Social Security are projected to exceed $50 trillion. The federal government is already borrowing money to pay benefits (read a good account here). And we're cutting the tax that is already not high enough to cover the costs? I understand why politicians don't want the sheep-like American electorate to understand the "payroll tax" shell game but what explains the media's silence?
The so-called Social Security trust fund (my previous comments about the "no-trust fund" here and here) will expend its surplus (currently invested in US Treasury obligations) around 2036. There's a good chance I'll still be collecting and I would prefer that my benefits not be cut by, say, 25%.

One way to help insure that I'll take the hit, however, is to reduce contributions. One more thing: any assertion that cutting contributions will be offset by greater income on which the taxes are assessed is a pipe dream. There's not much room for income growth in an economy where only 4.1% are unemployed and wages have been stagnant for years.

15 August 2019

"Land of Hope"

Land of Hope: An Invitation to the Great American Story

I received Wilfred McClay's "Land of Hope: An Invitation to the Great American Story" (Encounter Books 2019) from Jeremy and Brianne for Christmas. In 429 pages of high-quality paper McClay tells a story of America (at least that part that became the United States of America) from the days of its pre-British settlement to the present.

"Land of Hope" is beautifully written, excellently typeset, and exquisitely printed. McClay is a gifted storyteller. I appreciated the honesty of his introduction and epilogue. He tells his readers at the outset where he stands with respect to the story he is about to tell:
As the book argues from the very outset, the western hemisphere was inhabited by people who had come from elsewhere ... drawn by the prospect of  a new beginning ... the space to pursue their ambitions  ... Hope has both theological and secular meanings, spiritual ones as well as material ones. Both these sets of meanings exist in abundance in America. In fact, nothing about America better defines its distinctive character than the ubiquity of hope ... Even those who are bitterly critical of America, and find its hopes to be delusions, cannot deny the enduring energy of those hopes and are not immune to their pull. (xiv, emphasis added)
And when he stands with respect to that story: "History always begins in the middle of things. It doesn't matter where you choose to start the story; there is always something essential that came before ..." (3) So too McClay's story begins with only a nod to the pre-British peoples and has no end. America is still moving; its story is not done. Over the course of the book McClay explains, however, how the substance of America's hopes have changed. And he expresses concern that the animating power of hope may be waning: "We close this historical survey ... with an air of uncertainty, both about where we are [in 2018] and about where we are going." (422) 

McClay chooses to tell the political history of America. He readily acknowledges that other legitimate stories could be told but believes that a political "emphasis is particularly appropriate for the education of American citizens living under a republican form of government." (xiii) In this respect I felt some inadequacy in McClay's account; one need not be a materialist to appreciate that the economic history of America is important to understanding its political history. The insights of Charles Sellers in The Market Revolution came to mind. But there was only so much an historian can do and keep a book at a reasonable length so this is a mere quibble. 

On the other hand, McClay's discussion of the Progressive Movement is outstanding. 
What we call the Progressive Era was a more concentrated and widely influential phase in a longer and more general response to the great disruptions of industrialization, urbanization, national consolidation, and concentrated wealth and power. ... Such responses were part of a larger quest for a new order, or at least for a new way of thinking about how American democracy and [personal] self-rule could survive and thrive under such dramatically changed conditions. (240)
McClay is clear on how Progressives of the early twentieth century believed that the Constitutional order had become inadequate to contemporary conditions. And while the 1920s saw a turn back from Progressivism, the New Deal once for all installed the federal government at the central source of power in American civil government. While McClay's sympathies are clear, he is also fair to the perilous conditions of the time and to the power of hope--the overarching theme of his book--mediated by FDR.

Much more could be said about this excellent book but I will end with a lengthy quote from McClay's epilogue centered around the place of patriotism, an essay well worth reading:
Much of the time [we Americans] like to think of the individual person as something that exists prior to all social relations, capable of standing free and alone, able to choose the terms on which it makes common cause with others. We have an endless fascination with romantic culture heroes ... Even our own battered but still-magnificent Constitution, with its systemic distrust of all concentration of power, assumes that we are fundamentally self-interested creatures. This does capture some part of the truth about us.
But only a part. For among our deepest longings is the desire to belong, and it is an illusion to believe that we can sustain a stable identity in isolation ... Patriotism, to repeat, is an utterly natural sentiment whose primal claims upon our souls we deny at our peril. But we should not take it in the initial form in which it is given to us. An instinctive and unthinking patriotism is not good enough. Like every virtue, patriotism is something we must work upon, refine, and elevate, if we are to make it what it should be. (424) 

08 August 2019

India's Platonic Guardians and the IBC (Updated)

Since posting my thoughts below India's Supreme Court has issued a judgment in a case dealing with last year's amendments to the Insolvency and Bankruptcy Code. You can read a news account of the judgment here. (You can read the full text by going here.) In Pioneer Urban Land and Infrastructure Ltd. the Court simply applied the law as amended and recognized that real estate allottees (what most folks in the U.S. would call land contract vendees) were financial creditors. This conclusion was a straightforward reading of the amended statute. (For how the U.S. Bankruptcy Code protects the interests of such folks see 11 U.S.C. § 365(i).) The Court was willing to follow Parliamentary direction notwithstanding significant policy issues raised by dozens of large real estate developers. I hope the Court takes the same "plain-meaning" approach in the Essar Steel case.

The relatively new (as of 2016) Insolvency and Bankruptcy Code of India drew me to spend four months in Delhi as a Fulbright-Nehru Research Scholar to study its implementation. You can see a couple of posts from my stay here and here.

Surveying and interviewing insolvency professionals and reading the judgments of the Indian equivalent of U.S. Bankruptcy Courts led my colleague Dr. Risham Garg and me to some unsettling conclusions. You can read an early draft of the paper describing those conclusions here. (The final draft is sitting on the desks of law review editors as I type.) 

Quite a bit happened after we posted the draft including some significant amendments to the IBC. FWIW, I think the amendments are largely positive but with a hint of overreaching. Of course, what I think is of limited significance.

What is of much more significance is the opinion of India's Supreme Court. An appeal in Essar Steel, one of India's largest bankruptcy cases, was pending when Parliament amended the law. The amendments would have the effect of reversing the appellate decision that is now before the Supreme Court.

One can understand that the issue of retroactivity of the amendments must be addressed. (The amendments provide they apply to any case on appeal but that raises the question of whether the amendments would change any vested rights. I believe the answer is no because the appellate decision badly misconstrued the law.)

But go here to read the comments attributed to one of the judges of the Supreme Court about his "take" on the Court's broader role when it comes to applying the amendments. Specifically, Judge R.F. Nariman is reported to have
observed that if the law allowed banks to decide that while they would take haircuts, they could give nothing to the operational creditor, “it was bad law”. “If this is not addressed even in the amendments, it is a major lacuna. The amendments, instead of addressing the issue, aggravate it,” the court said. The financial creditors tried to justify the latest amendments made to the IBC by claiming that the difference between them and the operational creditors was that they were secured lenders as opposed to the latter. The court, however, observed that as there was “no monopoly” of any operational creditor, it was possible that a new management could switch to another service provider instead of the old one.
Without getting into the weeds of the substantive issue, I will observe that the attitude of the Indian Court to legislation is remarkable even by the activistic standards of some U.S. Supreme Court justices. India's Parliament in effect finds itself needing to justify its correction of a misguided appellate decision. Rather than applying the democratically-legislated amendments, at least one judge on India's Supreme Court takes his role to be to re-evaluate those amendments in light of a policy that he identifies.

Some in America--from the Left and from the Right, depending on the case--have accused the U.S. Supreme Court from legislating from the bench. Yet nowhere do we find a majority of SCOTUS opining that it has the warrant to describe a law as "bad" and then effectively ignore it.

It is the case that America's constitutional jurisprudence has increased the democratic deficit and thus contributed to the culture wars. We have not seen such a degree of overreach when it comes to statutes, especially when it comes to statutes of a purely economic nature. And even more especially when the law is directed at unwarranted judicial construction.

The rules of statutory construction admit of some room to maneuver when it comes to what would otherwise be an absurd result. Even so, the recent amendments to the IBC can hardly be described as absurd. I thus hope that the India's Apex Court recalls its earlier jurisprudence (by earlier I mean from January 2019) when it quoted with approval from U.S. Supreme Court cases holding that courts should defer to legislation in the economic arena. See Swiss Ribbons Pvt. Ltd. v. Union of India (2019), para. 7.

(I should also point out that it would be a substantial blow to domestic and foreign lending to Indian businesses if the Court eviscerates the substance of the amendments. This would be particularly problematic when the effects of the U.S.-China trade-and-currency war is rippling to other nations, including India.)

07 August 2019

Natural Rights, Natural Law, and a Conservative Renewal Update 2

Thomas K. Johnson elaborates here (“Unalienable Rights and Religious Freedom”) on one of the themes of my original post below. Johnson takes the creation of the State Department Commission on Unalienable Rights and the question of public meaning of "unalienable rights" back a step to the Virginia Declaration of Rights, published three weeks before 4 July 1776. Quoting from Johnson's pots
The famous words in the Declaration of Independence about unalienable rights are a shorter, more quotable version of the same ideas in the Virginia Declaration. But the Virginians explained unalienable rights more clearly. They are the rights that are inherent in a person and which cannot be given by a society nor taken away by a society. In this sense, they are natural rights, since they are given by nature, not given by society or government. These rights include the rights of life and liberty, to pursue property, happiness, and safety.
One point in which the Virginia Declaration differs from its famous younger sibling is how God is mentioned; this difference in the longer version should still the fears of those who ask if a new concern for unalienable rights endangers the separation of church and state. Whereas the theology of the Declaration of Independence describes God as the source of rights (people are “endowed by their Creator with certain unalienable Rights”), the Virginia text mentions God only in the paragraph regarding freedom of religion ... . (Emphasis added.)
Johnson believes this de-centering of God should assuage the fears of contemporary hard-core secularists. I won't hold my breath. A bit more plausible is Johnson's explanation that this understanding of natural rights protects freedom of religion and entails disestablishment. Of course, I'm afraid that even consideration of this nuanced historical claim will find short shrift in today's political climate.

It is not regularly the case that a writer/blogger on whom I comment returns the favor. This is, however, one of those cases. Hans-Martien ten Napel read the post below and graciously responded. I turns out that ten Napel has already taken up the cause with which I ended (“perhaps liberalism is the best of all plausible contemporary alternative political systems, but such is a conclusion for which argument and not simple assertion is required”) and is writing a book on the very subject. You can read his responsive post here. And be on the lookout for his book.

Let's compare and contrast. We can start with Hans-Martien ten Napel's piece The Natural Law and the Natural Rights Tradition: A Foundation for Religious Freedom (here). The burden of Ten Napel's piece is to show that religious freedom has long stood as a "natural right" in the liberal tradition:
The history of modern human rights, such as the right to religious freedom, goes back approximately 250 years to the idea of constitutional government securing natural rights. In so far as this notion has faded over time, with a view to the future of rights like religious freedom it might be worthwhile bringing it back into focus.
Following the sort of argument I made nearly ten years ago in Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (here), Ten Napel observes that the growing plethora of rights threatens to swamp the entire enterprise. As the human rights "industry" continues to create additional rights seemingly without limit, long-standing natural rights become ever-less important: "There are clear indications that religious freedom has increasingly come under pressure around the globe in recent years, the right to freedom of religion or belief remains very much on the margins within the international human rights system as a whole." In other words, if humans enjoy only a few natural rights like, say, life, liberty, and pursuit of happiness (within which freedom of religion was cabined), then each is a BIG DEAL. If, as is now the case, however, scores of human rights have been identified in various international conventions (and hundreds more have been put forth in a never-ending stream), then freedom of religion is only a small fish in a very big pond.

Enter the State Department of the United States that in May established a Commission on Unalienable Rights. According to the notice posted in the Federal Register,
The Commission will provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation's founding principles of natural law and natural rights. (Emphasis added.)
Such a Commission has the human-rights industry in a tizzy. References to "founding principles" and--God forbid!-- natural law threatens to expose the sexualization of rights as nonsense on stilts. At this point Ten Napel tries to cover his bases with a rhetorical sleight of hand:
It is not quite as self-evident as it may seem that a return to the roots of human rights poses a risk to, for example, LBGTI rights. Much depends on whether natural rights are seen in isolation or within a natural law context.
Now is not the time to discuss the historical relationship between natural law and natural rights. Yet, as long as the adjective "natural" is understood in an ontological way, LBTQ rights fail the test. They may, of course, qualify for legislatively sanctioned political and civil rights in a particular polity but not as natural rights. Ten Napel is unwilling to grasp the nettle and fuzzes over this conundrum because of his commitment to the current liberal order ("a system in which citizens are free to pursue the good life they have chosen for themselves"). What if that order called into question?

Next we can turn to Brad LIttlejohn's piece A National Conservative Awakening (here). A stirring riff on the themes of the recent National Conservatism Conference, Littlejohn covered many speakers and topics including one on the place of natural law in the American liberal tradition:
[T]he core issue in American society and politics today was the rejection of natural constraint, the “revolt against reality.” From this standpoint, national conservatism can critique both the out-of-control anti-natural sexual politics of the Left, the unmoored individualism of the Right’s homo economicus, and the imperialistic globalist consensus of many of our political elites. It is no coincidence that free-traders, LGBTQ activists, and pro-immigration crusaders all react viscerally against the idea of boundaries as sources of evil.
The natural law tradition, grounded in ontological and moral realism, is about recognizing limits for the sake of creating the framework for a flourishing human life. In other words, there is no natural warrant for a regime of either unlimited economic or sexual autonomy (or both).

Ten Napel recognizes the problem of rights running amok. He also recognizes that rights invented at the whim of this, that, other other special interest group threaten to attenuate all rights including natural rights. He seems unwilling, however, to take a critical look at the liberal system that makes such a rights-creation industry possible. Perhaps liberalism is the best of all plausible contemporary alternative political systems but such is a conclusion for which argument and not simple assertion is required. 

06 August 2019

"Temple, Talmud, and Sacrament"

Go here to download a thought-provoking piece by Nate Oman. Oman teaches contract law among other subjects at William & Mary Law School. I consider him a friend and have posted on his work quite a few times (here, here, and here for a few).

In Temple, Talmud, and Sacrament: Some Christian Thoughts on Halakhah Oman responds to Chaim Saiman's book, "Halakhah: The Rabbinic Idea of Law". I haven't read Saiman's book so I can't comment on Oman's responses except to say they seem careful and measured. According to Oman, one aspect of Saiman's argument is a response to Christian criticisms of the practice of the study of Jewish law, the Halakhah. Saiman defends the halakhic project by comparing it to Christian theologizing. Just as Christians have developed the meaning of the text of Scripture with the tools of Aristotelian and Platonic philosophy (and others, more recently), scholars of Halakhah participated in the "morally serious engagement with God's law called for by Jesus, but also a medium through which the rabbis [did] the work reserved for philosophers and theologians within the Christian tradition."

First, Oman concurs with Saiman's observation that the criticisms leveled by Jesus against the rabbinic scholars of his day were echoed by Jewish scholarly community itself. In other words, not all Pharisees were "Pharisees" (with the negative connotation most Christians give that term). Many halakhic scholars then and since have agreed with Jesus' warnings against exalting the form of Torah over its substance.

Second, Oman parts company with Saiman's contention that halakhic scholarship is the Jewish equivalent of Christian theology. Saiman identifies the halakhic project following the destruction of the Second Temple as a means of reproducing what had been lost, a place where God meets his people. Halakhah was not a form of arid logic chopping but rather the best practical way to be in the presence of God:
As described by Saiman, the halakhah performs many of the same spiritual functions as the Temple. The study of the law isn’t simply a way in which one thinks about God or ethics or cosmology. Rather it becomes a way of coming into the presence of God. Seen in these terms, the continued study of the laws governing the service of the Temple makes good sense. The Temple is transformed from a literal structure into a legal structure, and one can come within the holy of holies through the act of legal study rather than through the rituals of the tabernacle.
Accurate as Saiman's understanding of Halahkah may be, Oman is correct to point out that the equivalent for Christians is not theology but communion. For Christians, the Lord's Supper (Eucharist) is the place today where God meets his people in the most intimate fashion. On any Christian account the Church is the post-Pentecost form of the temple (2 Corinthians 6.16) but in the Lord's Supper the generalized presence of God's Spirit is focused in a special way:
Worthy receivers, outwardly partaking of the visible elements in this sacrament, so then also inwardly by faith, really and indeed, yet not carnally and corporally, but spiritually, receive and feed upon Christ crucified ... (Westminster Confession of Faith 29.7)
But this observation brings me to one that Oman failed to make in connection with the first of Saiman's arguments. The deepest bone of contention between Jesus and his Pharisaic opponents was not how they misapplied Torah--as serious an issue as that was--but over the relationship of Jesus to Torah. Jesus not only obediently lived under Torah, he fulfilled it in a unique and final way (Matthew 5.17-18). As Rabbi Saul put it, Christ is the telos of the Law  (Romans 14.4).

I hope this summary of the first part of Oman's piece has whetted the appetites of my readers. If this isn't enough, there's more where Oman works backwards from a respectful view of the halakhic project to challenge the conclusion of Robert Cover in his famous Nomos and Narrative. But I'll let folks read that part for themselves.


01 August 2019


I was pleasantly surprised by the film Yesterdadirected by  Danny Boyle and starring the improbable British-Indian actor Himesh Patel. The premise of the even more improbable plot involves Patel, playing Jack Malik, being struck by a bus just as the world suffers an 18-second electrical blackout. When the lights come back on, the world is changed in three remarkable ways--neither Coca-Cola, Harry Potter, nor the Beatles have ever existed. And only Jack remembers them. (Actually, two other folks, a Russian guy and an English woman also remember the Beatles, the eventual awareness of which strikes fear of exposure into Jack's heart.)

A modest songwriter-performer before the accident, Jack presents songs from the Beatles playbook if they were his own and enjoys--for a while--a meteoric rise to the top of the showbiz world. The shallowness of that world, even when it includes the genuinely decent Ed Sheeran playing himself, suck the life out of Jack. Coupled with his growing sense of guilt for passing off the work of (non-existent?) others as his own and the fear of exposure, Jack breaks down and confesses all at concert at Wembley Stadium.

A silly story but the plot is an effective vehicle for the themes of the price of fame and celebrity but also the importance of personal integrity, with selections from the Beatles playing a supporting role. Jack Malik is a hard-working fellow and dutiful son who realized his dream but only to repent of his success. Jack's repentance leads not only to a public confession but restoration of a relationship with his former manager. Actually, more than restoration. Jack's faltering career had been managed for over a decade by high-school friend Elie Appleton  (played by Lily James). Yet--amazingly for a film made in the 21st century--the two hadn't been sleeping together. His public confession included a plea to Elie and the film ends with them in happy union.

But the songs! Jack's increasing recollection of the Beatles songbook is timed perfectly to culminate in an impassioned "Help!" sung from the rooftop of a sea-side resort. The enormous Beatles playbook provides an appropriate song for virtually every scene. 

Yesterday may not take home lots of awards but it's much more than a summertime diversion.

26 June 2019

Convivium Irenicum 2019 Part 6 (The Penultimate)

(Earlier Parts on "Labor, Dominion, and Alienation" here"‘You Are Not Your Own,’ Exposing the Limits of Libertarian Self-Ownership and the Non-Aggression Principle" here"Christ and Liberty: Retrieving the Freedom of a Christian in an Age of License" here and here, "Monetary Realism, Gold, Federal Reserve Notes, Credit, and Usury" hereand "Why Do We Work? The Role of Economic Freedom" here and here.)

I've waited nearly to the end of this series to post about the remarks of this year's keynote speaker, Brian Dijkema. Dijkema's day job is as Program Director at Cardus, a Canadian faith-based think tank. He spoke on "The Parameters and Practices of Social Justice."

One reason why I've held off on posting about Dijkema's presentation is that he did not also submit a paper. He assigned a variety of materials to read in advance and at the Convivium combined lecture and a guided discussion. His lecture was recorded and you can listen to it here.

Summarizing only two of Dijkema's remarks from my notes, he first elaborated on Abraham Kuyper's notion of sphere sovereignty and re-framed it in terms of fields of differentiated authority. In other words, the effectively unitary authority of Adam (and Eve) at creation has over the millennia been differentiated among the authorities of the family, the university, organized forms of capital and labor, religious institutions, social organizations, civil government, and, of course, the individual-in-the-market. The power of each now-differentiated field of authority is the legitimate means by which it can bring about its unique end.

Second, social justiceaccording to Dijkema, has to do with the relationships within and between the fields. Not all social justice, however, is a matter of public justice. Notably, within an authoritative field the scope of public justice is minimal. Families, clubs, churches, etc. are largely free to implement (or not) what justice requires of and for their members. 

This brief summary does not do justice to Dijkema's remarks and so I encourage readers to listen to his full lecture. He is an engaging speaker with many more valuable insights.

20 June 2019

Convivium Irenicum 2019 Part 5.2

(For Part 5.1 in which I summarize Hugh Whelchel's paper and raise a question go here. For the first in this series of Convivium 2019 posts go here.)

Both Whelchel's biblical-theological account and my Aristotelian one reached a similar conclusion: "Neither individuals nor corporations exist for themselves. Rather we and our tools (including corporations) are called to glorify God in growing His peaceable Kingdom [shalom]."

But: "both of us face a similar objection: Sure, on a Christian account shalom is the goal of human activity but corporations ain't human. So why should an artificial person aim for the same end as a natural one?"

In other words, is a corporation a person or an instrument? Does a corporation have a final cause or is it merely an efficient one? Is the level of the moral licitness of profit measured at the corporate level or that of its shareholders?

The answer is moot for most corporations. Closely held (by an individual or a family) corporations (e.g., Hobby Lobby) or LLC's are morally indistinguishable from their shareholders/members. Most corporations exist only as a means of limiting individual or family liability or other state-created utilitarian ends. Except as reinvested, all profits go to a small group of persons whose use of them must be evaluated in terms of their contributions to shalom. In such cases corporate "personhood" is fully fictional. 

Second, whatever moral status I will argue attaches to publicly-traded corporations is not a legal standard. With all due respect (and notwithstanding its origins eight centuries ago as an instrument of the king's conscience), no one should expect the Delaware Court of Chancery to judge the virtue or vice of corporate profitability.

Finally, I'll start by sending readers here where in another context I argued that
If (since) humans can create moral obligations out of thin air, so to speak, by promising, then so can certain human instrumentalities. Unlike, say, rocks and clouds, corporations are moral agents. They choose ends and means; they exercise agency. Consider the following theological analogy: just as God created human beings in his image (which, whatever else the imago dei entails, includes moral agency) so too humans can create non-biological entities in their image that likewise are moral agents. I suspect most people believe that corporations are moral agents and, although moral intuitions don’t prove much, they should count for something.
But is this true? in other words, can a "person" created by human agents through legislative means itself be a moral agent? Is even characterizing a publicly traded corporation as possessing agency a bridge too far? Not if Nicholas Wolterstorff is correct. You can go here to read my full post "Corporations and Rights (And Duties)" but I'll quote the substance of it below:
Even though corporations are not capable of causal agency, i.e., apart from human agents they can do nothing, corporations nonetheless are capable of rational agency. In other words, a human's acts on behalf of a corporation are those of the corporation and in turn the corporation's agent's acts are counted as that of the corporation, which Wolterstorff calls double agency (p. 364). Quoting from the following page:  
Human persons are living organisms capable of rational agency. Social entities [like corporations] confront us with the curious phenomenon of entities capable of rational agency that are not living organisms. Shall we say that such entities do not have lives, on the ground that they are no living organisms? Or shall we say that they do have lives, on the ground that they are capable of rational agency?
Wolterstorff opts for the later. In the case of corporations, it is the power of the state that confers this sufficient simulacrum of living organisms to enable them to acquire rights. Thus, indirectly, and certainly not without human agency, corporate entities have sufficient non-instrumental worth to ground rights. If rights, then duties of others to respect such rights and, equally importantly, the duty to properly regard the rights of others.
Apropos to the current conversation, if publicly traded corporations are agentic enough to enjoy rights then they are sufficiently persons to commit wrongs. And once that conclusion is admitted, we see that corporations are more than purely instrumental hammers. In other words, such corporations have a final cause that is more than profitability. Derived as they are from humans whose duty it is to seek shalom, such corporations should likewise be morally evaluated on the extent they advance the goal of God's peaceable kingdom.

Convivium Irenicum 2019 Part 5.1

(Previous Parts starting here through here ... and more in between)

I attended the breakout session where Hugh Whelchel, Executive Director of the Institute for Faith, Works, and Economics, presented on "Why Do We Work? The Role of Economic Freedom." First, I was attracted by the opening paragraph of his paper. And second, I wanted to see how someone could "translate" sophisticated concepts into something for the average "person in the pew." The second reason is apropos because the mission of the Davenant Institute, sponsor of the Convivium, is centered around a project of retrieving the insights of the classical Protestant tradition and making those tools accessible to contemporary academics, pastors, and lay persons. The final step--making this trove of wisdom accessible to non-academics--has proved especially challenging.

Whelchel's attention-grabbing first paragraph:
In a New York Times article in September, 1970, Milton Friedman emphatically stated that the purpose of business was to maximize shareholder value. This quote was picked up by business leaders and the media and has been so often repeated it has become an established corporate mantra. Yet we, as Christians, must reject it; we are called to work for a higher purpose. What that purpose is and how we achieve it is the subject of this short white paper.
What support does Whelschel marshall in support of his contention that Christians should reject the wealth-maximization thesis for corporations? In short, humanity's purpose to glorify God through shalom:
Shalom denotes a right relationship with God, with others, and with God’s good creation. It is the way God intended things to be when he created the universe. This was God’s original design for his creation—without scarcity, poverty, or minimalistic conditions. He desires that we enjoy the fruits of his creation and the fruits of our labor because by doing so we bring him glory.
Building on the goal or end of shalom, Whelchel goes on to find in humanity's power to "sub-create" by using the material of creation and working together to be the program for human activity. Of course, sin has clouded the picture but it hasn't changed the ultimate goal of human activity: "Restoration of shalom is God’s design in redemption. Understanding shalom is the key to realizing how God intends to use the work of our hands to participate with him in the restoration of his creation."

The remarkable success of the modern market economy in lifting hundreds of millions of people out of abject poverty is thus connected to the "shalom project." Of course, alleviation of poverty is not equivalent to biblical shalom. Only the eschatological age will see the state of permanent shalom. Thus, the purpose of economic freedom is not found in freedom as such but instead "the purpose of our work, and by extension our businesses, is not just to maximize shareholder value, it is to reweave shalom. We are to bring about flourishing to the communities we serve, seeking to glorify God, serve the common good, and further God’s kingdom in this current age."

Whelchel's assertion, that maximization of shareholder value is not the final goal of a corporation, should sound familiar for those who have followed my blog. I argued the same point here where deploying Aristotle's notion of four-fold causality I wrote:
The material cause of a corporation is that which it does--build cars, produce drugs, clean carpets, or stream internet porn. The efficient cause of corporate activity is capital, which turns the “stuff” of corporate activity, its material cause, into what folks buy. Capital lasts only so long, however, if the corporate activity doesn’t yield a profit. So it’s here, at the level of efficient cause, that profits fit in an Aristotelian account. Then it’s on to the formal cause, the stuff of law school courses in business associations, like Articles, By-laws, resolutions, minutes, and so on. Finally, the final cause.
Before suggesting a corporation’s final cause, however, we should note that it won’t be the same as the corporation’s efficient cause. In other words, profit is not the goal of corporate activity; it is simply one of the “causes” that permits the corporation to achieve its goal. Many probably intuitively recognized this when I listed steaming internet porn among the material causes of a corporation. It strikes most folks that something other than profitability should serve as the corporate goal. But the leading contemporary theoretical accounts of the firm in fact stress profitability--shareholder return--as the corporation’s only goal, at least for publicly traded ones.
An entity without a final cause or goal is like a powerful chainsaw spinning out of control: it can do a lot of damage. ... Only profit directed toward an end that is good is profit worth earning. (Emphasis added.)
Whelchel and I have taken different tacks to reach a similar conclusion. Neither individuals nor corporations exist for themselves. Rather we and our tools (including corporations) are called to glorify God in growing His peaceable Kingdom.

But both of us face a similar objection: Sure, on a Christian account shalom is the goal of human activity but corporations ain't human. So why should an artificial person aim for the same end as a natural one?

This is a fair criticism. After all, we don't hold other tools like, say, a hammer, to have the same final cause as the human who nails with it. Thus, is a corporation more like a "toolish" hammer or a shalom-enhancing human being? Stay tuned for some brief observations in Part 5.2.

12 June 2019

Convivium Irenicum 2019 Part 4

(Previous parts here and here plus a two-parter here and here.)

Brad Belschner's paper, Monetary Realism, Gold, Federal Reserve Notes, Credit, and Usury was a refreshing breath of cool air. Or a jolt to the system of certain forms of received wisdom. Let me start by quoting his opening provocations:
  1. Banks do not lend money. Banks create money by granting credit. And that’s a good thing.
  2. The US government does not print money into existence or spend it into existence, nor should it. 
  3. We do not have fiat money today. We have credit money, which is asset-based and contract-based. 
  4. A gold standard is harmful to households and business because it's far too unstable and too tangible.
  5. Fractional reserve banking is bad idea, but the basic banking structure we have today is a good idea. 
  6. A United States Dollar is not a Federal Reserve Note. But a Federal Reserve Note is one kind of dollar. 
  7. Debt can be very beneficial for family life.
I will amble around only a couple of Belschner's contentions. You'll need to buy the eventual book to get the whole of his argument.

First, as my Contracts students will learn this fall, for centuries the English common law did not conceive that contractual expectations were property. Even today, it's a rare case in which an aggrieved contract party is entitled to a remedy in the form of specific property.

Nonetheless, those same "mere expectations" could be assigned, traded, and circulated in an economy as if they were property. Abstraction and reification. In this field that's called credit. And like other abstractions that we treat as real, credit can be good. Or bad.

Second, I've long suspected that one of two things would happen were we to try to limit "money" to some particular commodity. Either most of us would be eating dirt for without much more money than a commodity like gold could support, there wouldn't be enough to go around and much of what's come into being by virtue of credit would disappear in short order. Or--and much more likely--we'd simply create new forms of reified credit to support the system to which we've become accustomed. New forms of credit could work but it would take some time to sort our which of the issuing debtors was must trustworthy (creditable). Might as well stick with what we have.

Third: of course, even the most creditable debtor--the government of the United States of America--can grant too much credit. In which case no one will want any more of it. In which case we'll be back to my second amble above.