> It thus our laws that make people homeless, by forbidding the homeless from > simply moving into nearby buildings. It is our laws that make people poor by > preventing them from helping themselves from the plenty around them. It is > our laws that, had they been neutrally enforced in Shelley, would have kept > the black family from living in the home that they had purchased. In this > way, our laws that are responsible for every economic injustice we see in > society. > > Because all economic orders are built upon coercively imposed laws and > enforcement institutions, the key question, in my view, for the political > economy is how to undertake this coercion fairly and with respect to the > equality of all people. > > > https://medium.com/@ebruenig/building-a-moral-economy-631093d084d0 > > Building a Moral Economy > Elizabeth BruenigMay 2 > Last month, Matt and I spoke at Harvard Law School about the ideological and > political work behind building a moral economy. What follows is the video and > the text of our talk. I’ve popped in helpful links to some of the texts we > mention, which I hope you’ll enjoy reading through. > > Liz > > First, thank you so much for bringing us to visit you! It’s such an honor. > And thank you for coming out to talk with us. I’m excited to hear what you > all have to say, and I’m very happy that folks with your training and > capabilities are interested in this subject. > > One of the questions before us is: how do we build a moral economy? By that > we mean an economy that seems to respond to moral obligations as we > understand them. And that may sound like a contradiction in terms. In the > United States, we tend to think of economies as sort-of scientific entities > whose activities exist apart from the state, apart from society, and > according to prerogatives and laws that are more like the physical laws of > nature than the constructed laws of governments and societies. We can talk > about how we, as participants in the economy, can be more morally upright — > but it’s much more difficult to articulate how the economy itself can operate > according to certain moral standards. > > There are quite a few reasons we find it challenging to talk about moral > economies, but one is that our economy is here — it’s humming along, for > better or worse, and it’s a little tough to talk about building things that > already exist. The constructed resists construction, in other words. So in > thinking about the moral lives of economies, I find it helpful to look at a > period when everything had fallen apart spectacularly, and none of the normal > assumptions about how markets or laws or property worked really seemed to > apply anymore. > > That is, I like to read Saint Augustine. You know who that is, right? Lord, > give me chastity and continence — but not yet? That guy. Augustine was a > Christian bishop who wrote some of the foundational theological work of the > Catholic church between the fourth and fifth centuries. He was an educated > man and had at one time been a teacher of rhetoric; he was also a Roman > tasked with chronicling the fall of the heretofore invincible Roman empire > through Christian eyes. Such a massive upset as the collapse of Rome could’ve > given someone reason to doubt divine providence, but Augustine looked at it a > different way: He saw opportunity. And in his greatest work, City of God, he > set about illuminating the loving hand of God even in such tumultuous times > as is. > > But more interesting for our purposes is Augustine’s on-the-ground, practical > writing for a civilization in upheaval. With Roman law and Roman social order > less obvious, in light of the empire’s stumbling, than they had been before, > Augustine found himself able to work with the raw materials of lawmaking and > order-creating. He was in the position to explain to Christians what the > nature of these things was, and their nature, he found, is moral. > > In one sermon on the book of John, Augustine delves into the nature of > property ownership and governance: > > “God has made the rich and poor of one clay: the same earth supports the poor > and rich alike. But by human right, however, someone says, ‘this estate is > mine, this house is mine, this slave is mine.’ By human right, therefore: > that is, by the right of emperors. Why? Because God has distributed to > mankind these very human rights through the emperors and kings of this world.” > Augustine supposed the introduction of governance, though ultimately a result > of sin, was a gift from God meant to remedy a situation in which men could no > longer rightly regulate their own impulses. Good governance had, he thought, > a better shot at preventing constant antagonism between neighbors than some > ill-fated anarchic utopianism. In Augustine’s view, the regulation of private > property was one such just function of government. > > > But how were governments supposed to set up the rules of ownership? Augustine > wasn’t a radical interventionist, in this respect, though he did, in what’s > often considered one of his less shining moments, induce the government to > deprive a heretical sect of Christians he found himself in conflict with of > their property. By his lights, there were two worlds of ownership: the > legally valid and the morally valid. In one intriguing letter, he writes: > > “Who is more cruel: the one who steals from or cheats a rich man, or the one > who destroys a poor man by usury? What is acquired this way is certainly > ill-gotten gain, and I would wish restitution to be made of it, but it is not > possible for use in court…”The whole world is the wealth of the faithful man, > but the unfaithful one has not a penny [Prov 17:6].” [Here], do we no prove > that those who seem to rejoice in lawfully acquired gains, and do not know > how to use them, are really in possession of another man’s property?” > In other words, there is a moral and a legal dimension to property ownership > itself, and the legal reality can either correspond closely, distantly or not > at all with that moral dimension. Augustine doesn’t appear to demand, here, > that the two dimensions be in total alignment. But he does point out that > there’s something a little disturbing about instances in which the legal > reality of ownership is extremely removed from the moral dimension — as when, > for instance, a rich man destroys a poor man by usury, and though there’s > something obviously immoral about that, there’s no way for the poor man to > seek restitution for it in a court of law. That, Augustine says, he would > change. > > Maybe this seems to cast the shadow of theocracy over otherwise secular > institutions. Why impress a moral vision upon our property laws if we’re > getting along fine without doing that? One answer to that question might be > to say: we’re not getting along fine. Another answer would be: our property > laws already have a moral vision. Both are true. > > Consider, for example, what a person has to do to receive welfare benefits if > they are poor. > > In some states, there are efforts accomplished or afoot to test welfare > beneficiaries for drug use before remitting to them their benefits. Our > nation has also dallied with workfare, or the enforcement of work in order to > receive one’s due benefits. These aren’t unusual policies, either; as > recently as the 2016 presidential election, policies proffered up by either > party argued making students work in return for public payment of tuition, > placing work requirements on the use of Medicaid. The arguments are often > presented in practical form, but the moral dimension is clear: work is good, > and it’s better if a person is responsible and upright than dissolute. And > since the remittance of public benefits is one intersection of the government > with an individual’s private life, it becomes a handy locus for enforcing > some moral improvement. > > Of course, when taken in the Augustinian light, we can see that the entire > institution of property ownership as legally realized is a function of the > state, and we can recognize each instance of ownership as an intersection > between a citizen’s life and the power of government. (Matt will tell you > more about this in just a minute!) In that case, we can rightly ask, as > theologian John Milbank does, why we apply a different standard to the poor > than to the rich: > > “But if money given to the poor must sometimes require that they give > something in return, then this rule must apply also to the rest of us. For if > the poor are us, then we are also the poor, at bottom entirely dependent on > the bounty of nature and the gifts of other human beings. > It follows that the wealthier should also receive as reward, in terms of > salaries, bonuses and state benefits, only what can be justified in terms of > both their needs and their social contribution…if workfare invokes mutual > fairness then this implies that such a principle should be applied all the > way up. And that would be both radical and Christian.” > We could also do away with the semi-punitive distributional impulse > altogether, though, and just work, like Augustine did, with the raw materials > before us: what is property? What is all this stuff for? The crisis of > climate change offers another opportunity to really re-assess the purpose of > the material world. Now that it’s compromised, maybe we can develop a clearer > vision of what we should’ve been doing with it all along. Those shoulda > questions are moral questions in disguise: they ask us to evaluate the > purpose of the things we have, and once we know the purpose, we can begin to > think about what we ought to do. And this is how you unearth the moral > dimension of the economy. > > So that’s how I see step one in putting together a moral economy. I’m going > to turn it over to Matt now to talk about how these explorations play out in > the modern world. > > Matt > > Thank you everyone for having us. We really appreciate the invitation. The > subject of this talk is a moral political economy. Seeing as we are at > Harvard Law School, I figured I’d start the discussion off with my favorite > Supreme Court case. This is a case I think many of you probably read in your > first year constitutional law class, but one whose radical (and correct) > implications you may not have fully internalized. > > The case I am referring to is Shelley v. Kraemer, which was decided in 1948. > If that name rings a bell, but you can’t quite place it, you might remember > it as the racially restrictive covenant case. At least, that’s the tag line > most people give it. For me, I remember it as the case in which the Supreme > Court realized, for a very brief moment of time, that there is no such thing > as private economic action. > > The facts of Shelley are straightforward. In June of 1934, a property owner > in Detroit, Michigan executed a contract stating that “[their] property shall > not be used or occupied by any person or persons except those of the > Caucasian race.” There were some other clauses in the contract as well > stating that this restriction would only come into effect if 80% of the > neighborhood also signed similar agreements, which they did. So, in effect, > the neighborhood had collectively agreed, in written contracts, not to sell > or rent their homes to non-white people. > > Around 10 years after this racially-restrictive covenant was signed, a black > family bought the plot and moved in. Naturally, the other people who had > signed on to the restrictive pact were not very happy about their new > neighbors. So they sued. In their suit, they simply asked the trial court to > enforce their contract and remove the black family from the parcel, which the > court did. > > The black family eventually appealed the case up to the Supreme Court, > arguing that their 14th amendment rights to equal protection under the law > had been violated. > > On its face, their challenge might seem doomed to fail. As every annoying > person on the internet will tell you, the constitution only applies to the > government. It only applies to state action. It does not apply to private > individuals or private action. Thus, it would seem that since the contract in > question was a private one entered into by private individuals, the > constitution does not forbid it. > > But this is not the conclusion that the court reached. It did not simply > rehearse its precedent about the constitution only binding state actors and > then dispose of the case. Instead, it reasoned that although the making of > the “no blacks allowed” agreement did not involve any state action, the > enforcement of it did involve state action. Why? Because it is the state, > through the courts and the police, that is ultimately charged with kicking > this black family off the land. > > And the court makes this point as head on as you possibly can. Here’s the > money shot: > > “We have no doubt that there has been state action in [this case] in the full > and complete sense of the phrase. … It is clear that, but for the active > intervention of the state courts, supported by the full panoply of state > power, petitioners would have been free to occupy the properties in question > without restraint. … The difference between judicial enforcement and > nonenforcement of the restrictive covenants is the difference to petitioners > between being denied rights of property available to other members of the > community and being accorded full enjoyment of those rights on an equal > footing.” > The logic of the court is undeniable. Contracts do not enforce themselves. > Property laws do not enforce themselves. Hell nothing about our economic > system is self-enforcing. Within every transaction, every agreement, every > property claim there is the hand of the state promising to apply (or actually > applying) coercive violence in order to make the economic arrangements work. > > Put simply the Shelley court realized that the public/private distinction > that we hold so dear in constitutional jurisprudence is actually incoherent. > There is no such thing as a private sphere of economic action separate from > the state’s police powers. > > Sadly, this particular court’s take proved too hot to handle, and subsequent > courts were never willing to embrace its underlying logic. But hey when you > right you right, even if nobody else agrees with you. > > The Shelley case is iconic in legal realist circles. Indeed the king of legal > realism, Robert Hale, actually helped draft briefs for the Shelley case. > Robert Hale, who is one of my favorite thinkers, wrote a famous 1923 paper > titled Coercion and Distribution in a Supposedly Non-Coercive State that I > think is critical to framing the discussion of political economy here. > > In that paper, Hale painstakingly explains that what we frequently refer to > as voluntary economic actions devoid of state coercion are anything but that. > For instance, when I go pay a dollar for a bag of peanuts, this seems like a > voluntary thing, but in fact, the only reason I do so is because the state > has threatened to violently attack me if I simply grab the bag of peanuts > without paying. The choice between starvation and payment is a false choice > created by the state and its laws. > > Similarly, in the case of labor, Hale notes, as does Marx before him, that > the law of property coerces those without property into obeying employers, > also through the threat of starvation. Hale’s prose was not great, but I feel > like we can’t do him justice unless we power through one of his quotes: > > Unless, then, the non-owner can produce his own food, the law compels him to > starve if he has no wages, and compels him to go without wages unless he > obeys the behests of some employer. It is the law that coerces him into > wage-work under penalty of starvation — unless he can produce food. Can he? > Here again there is no law to prevent the production of food in the abstract; > but in every settled country there is a law which forbids him to cultivate > any particular piece of ground unless he happens to be an owner. This again > is the law of property. And this again will not be likely to be lifted unless > he already has money. That way of escape from the law-made dilemma of > starvation or obedience is closed to him. It may seem that one way of escape > has been overlooked — the acquisition of money in other ways than by > wage-work. Can he not “make money” by selling goods? But here again, things > cannot be produced in quantities sufficient to keep him alive, except with > the use of elaborate mechanical equipment. To use any such equipment is > unlawful, except on the owner’s terms. Those terms usually include an implied > abandonment of any claim of title to the products. In short, if he be not a > property owner, the law which forbids him to produce with any of the existing > equipment, and the law which forbids him to eat any of the existing food, > will be lifted only in case he works for an employer. It is the law of > property which coerces people into working for factory owners. > I could go on, but the basic gist is clear. As we see in Shelley and as we > see in Hale, this laissez-faire hegemony we live in which sells us the > libertarian lie of a private market involving private individuals carrying > out voluntary transaction is a lie. The economy is at its core a bundle of > violently coercive legal institutions that construct such things as property > law, contract law, securities law, corporations law, bankruptcy law, labor > law, and all of the rest of it. It is this constellation of man-made, > coercive institutions that collectively determine how production is organized > and how wealth and income are distributed in society. > > It thus our laws that make people homeless, by forbidding the homeless from > simply moving into nearby buildings. It is our laws that make people poor by > preventing them from helping themselves from the plenty around them. It is > our laws that, had they been neutrally enforced in Shelley, would have kept > the black family from living in the home that they had purchased. In this > way, our laws that are responsible for every economic injustice we see in > society. > > Because all economic orders are built upon coercively imposed laws and > enforcement institutions, the key question, in my view, for the political > economy is how to undertake this coercion fairly and with respect to the > equality of all people. > > The application of coercion in society to create an economy is not something > that we should take lightly. It’s a very serious thing to start establishing, > by coercive rule, what people can and cannot use, can and cannot consume, and > where they can and cannot go. And when embarking upon that very serious task, > we absolutely must ensure that the coercive rules we pick do not starve > people, do not create humiliating and brutal imbalances in power and wealth, > and do not deny people basic dignity and inclusion in society.
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