"Feud" v "Feudal": Sound is not Meaning

A recent blog post commenting on one of mine asserts that:

David Friedman at his appropriately entitled blog “Ideas” compares contemporary patent litigation with feudal warfare.

What I compared it to was a feud system, a legal system whose rules are enforced by the threat of private force, something very common in the historical record. "Feud" and "feudal" sound the same, which makes it easy to confuse them, but the words are unrelated in both meaning and etymology.

The same mistake as interpreting "niggardly" as a racial slur.

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feudal (adj.)

1610s, from Medieval Latin feudalis, from feudum "feudal estate," of Germanic origin (cf. Gothic faihu "property," Old High German fihu "cattle;" see fee). Related to Middle English feodary "one who holds lands of an overlord in exchange for service" (late 14c.).

feud (n.)

c.1300, fede "enmity, hatred, hostility," northern English and Scottish; perhaps from an unrecorded Old English word or else from Old French fede, from Old High German fehida "contention, quarrel, feud," from Proto-Germanic *faihitha noun of state from adj. *faiho- (cf. Old English fæhð "enmity," fah "hostile;" German Fehde "feud;" Old Frisian feithe "enmity;" see foe). Sense of "vendetta" is early 15c. Alteration of spelling in 16c. is unexplained.

(Both from the Online Etymology Dictionary)

The Economics of Finding a Wife

A charming, reasonably sensible, but somewhat tongue in cheek essay by a fellow economist.

Landsburg v Bork: What Counts as Injury?

My friend Steve Landsburg appears to have entered a competition with my friend John Lott over who can make the most politically incorrect argument. John's old entry was an article arguing that the fact that rich criminals were less likely to be convicted than poor criminals was evidence for, not against, the efficiency of the legal system (my discussion of that article is in chapter 15 of my Law's Order, under the subhead "Should the Rich Pay Higher Fines"). Steve's new one, which has gotten a good deal more attention, is a blog post asking why rape of an unconscious victim who suffers no injury in the ordinary sense should be illegal.

Reading attacks on Steve's piece, it occurred to me that I had seen the essential point before—from the other side, in an old article by Robert Bork which explained, among other things, why he was not a libertarian. It is a long time since I read it, and when I recently reread it I discovered that it was not mainly about the part I remembered, but that particular argument was what impressed me, since I am both a libertarian and an economist and the argument appeared to show that the two were inconsistent with each other.

Bork's argument, in my words not his, goes as follows:

When I pollute the air I am injuring other people, so it is legitimate for the legal system to respond by penalizing me. What makes it an injury is not the fact that I affect the air but that the effect does harm; one could imagine an effect, such as a change in the ratio of two stable isotopes of trace gases in the atmosphere, that would not matter to anyone and so would not be seen as an injury or a proper subject for legal action.

Harm, however, is ultimately subjective, since it depends on the preferences of the harmed individual.  When I smell the roasting ribs from my neighbor's barbecue, that isn't harm because I enjoy the smell. When the smoke from the barbecue makes me cough that is harm, because I don't like coughing—and would be harm even if the smoke had no adverse effect on my health. From the point of view of economics, "harm X" simply means "lower X's utility."

Suppose that, instead of polluting my neighbor's air, I engage in behavior that he disapproves of—read pornography, use contraceptives, work on Sunday. That too causes him disutility. Since the defining characteristic of harming someone is lowering his utility, I am harming him. Since I am harming him, my activity is just as much a legitimate target for legal action as my polluting his air would be. Hence the libertarian principle that I have a right to engage in what Mill referred to as self-regarding actions, actions that only affect me, is either false or empty. Either I don't have a right to read porn if doing so offends others without affecting them, or their offense counts as an effect of what I am doing so my reading porn isn't really a self-regarding action and there is no reason in principle why it shouldn't be banned.

When I first read it, it struck me as an interesting and persuasive argument for a conclusion I disagreed with—explaining why I thought it was ultimately wrong would take a different, and longer, post than this. 

Steve Landsburg's piece, responding in part to the Steubenville rape case, makes the same argument from the other side. We—at least Steve (and I)—don't feel that the argument for banning pornography or contraception is a legitimate one. Our reason is that the "harm" in those cases is purely subjective—I haven't actually done anything to you, so your unhappiness at my self-regarding behavior is your problem, not mine, and you have no right to use the legal system to make me conform to your wishes. And even if you argue that I have done something to you—acted in a way that resulted in your knowing what I was doing, knowledge that pained you—that doesn't count, because "knowledge that pains you" isn't injury in the same sense as causing you to get cancer is.

Which gets us to the part of Steve's post that gives lots of people reason, or excuse, to attack him. Suppose an unconscious woman is raped in a way that results in no injury—in the Steubenville case, "rape" actually consisted of digital penetration. She only finds out it happened several days later, at which point the harm is purely subjective, consists of her being offended at the knowledge that it happened. Why is this different from the subjective harm suffered by the person offended at someone else reading pornography? It feels different—to me and obviously, from his post, to Steve. But is it different, and if so why?

That, it seems to me, is an interesting question, one relevant to both law and  morality. It is ultimately the same question raised by Bork, although from the other side. Bork was arguing that the harm caused by the use of contraception and the harm caused by air pollution were ultimately of the same sort, that it was legitimate to ban pollution hence legitimate to ban contraception—his article was in part an attack on Griswold v. Connecticut, the Supreme Court case that legalized contraception, a fact I had forgotten when I started writing this post. Landsburg is arguing that rape that does only subjective harm is of the same sort as reading pornography that does only subjective harm (unlike Bork, it isn't clear that he is thinks his argument is right, only that he thinks it interesting), that it is not legitimate to ban the reading of pornography hence not legitimate to ban that particular sort of rape. 

I agree with both Bork and Landsburg that there is a real puzzle in our response to the legal (and moral) issues they raise. Hence I disagree with the various commenters whose response to the Landsburg piece was that it showed he was crazy, evil, or both.

Mann v. Hansen: They Aren't All the Same

My interest in the global warming controversy centers mostly on the question, largely although not entirely economic, of what the net effect for humans would be of global warming on the scale suggested by past IPCC projections; for details see my previous posts on the subject. I have, however, also been an observer, mostly from a safe distance, of the ongoing war between proponents of the conventional view of global warming and critics. For anyone else interested in observing it, I suggest the RealClimate blog for the former side and Anthony Watt's What's Up With That for the latter. They represent the more reasonable range of their respective factions. For the less reasonable range, a sample of both sides can be found on the Usenet group alt.global-warming.

One not surprising feature of the argument is that each side tends to demonize everyone on the other side. That is a mistake. Some people hold a position for good reasons, some for bad. Some supporters of a position are honest, some are not. And that is true both of correct positions and of incorrect ones, given that most such disputes are over questions complicated enough so that there are good arguments for both sides.

I was reminded of this point by a recent link on WUWT to a paper coauthored by James Hansen, who has been a prominent supporter of the idea that global warming is a very serious problem and strong measures should be taken to deal with it. The paper is a defense of nuclear energy, both on the grounds that it results in many fewer deaths than conventional energy sources and on the grounds that it does not produce CO2, hence shifting to nuclear energy would reduce global warming.

That is interesting because, while the second point is clearly true and the first may well be, it is not a position popular with environmentalists. I pointed that out in an old post on this blog, and ended with:

I am sure there are people who are both seriously worried about global warming and in favor of nuclear power. But how many of them are there? How many high profile spokesmen or organizations have taken that position?

 I now have at least one example.

This is the second time I have noticed Hansen getting something right. The first was a video of a talk he gave on how to control global warming. It was in favor of what economists call a pigouvian tax, in this case a tax on putting CO2 in the air, as a superior alternative to more direct forms of regulation. Given his underlying assumption—that global warming produces large net negative externalities—he had the economics right. In that case as well, although not as clearly, he was going against the consensus of "his side," most of whose members, in my experience, support a range of more direct regulations and many of whom disapprove of the idea of allowing firms to "buy the right to pollute."

I offer, as a contrast to Hansen, another prominent figure on the same side of the dispute, Michael Mann, most famous for his role in the hockey stick controversy, the argument over whether features of a graph of global temperature in an article he co-authored were real or were artifacts of an error in the statistical procedure he used to produce it. That particular controversy is complicated enough so that I have no strong opinion on it, although I do have the opinion of one statistician I know that there was a real problem with the analysis. 

But I also observed, mostly via arguments on the Usenet group, a less important controversy over a simpler issue, the claim by Mann, his university, and his supporters, that he was a "Nobel winning scientist."

[Later addition: Tim Lambert in the comments points out that the university web page claimed Mann won a Nobel prize (along with others), but specifies the peace prize, hence does not describe him as a "Nobel winning scientist."  The claim on Mann's facebook page was similar. 

So I don't have evidence that Mann or the university described him as a "Nobel winning scientist," merely that they (falsely) claimed he had won a Nobel prize. On the other hand, a quick google finds lots of stories by supporters, including stories of interviews with Mann, which do describe him as a "Nobel winning scientist," which seems unlikely if he made any effort to correct those who so described him.]

That claim was bogus twice over. To begin with, the Nobel prize in question was the Peace Prize, so even if Mann had won it, the description, although literally true, would be misleading. But in fact, the prize did not go to him, it went to the IPCC. His claim was based on a certificate from the IPCC, sent to a substantial number of people, crediting them with work that helped the organization win the prize. 

Doing work, along with others, that helps an organization win the Peace Prize does not make you a Nobel prize winning scientist, as should have been obvious to anyone not blindly partisan—but wasn't to a considerable number of people who were. Mann's university, many of his supporters, and (I think) Mann himself, finally abandoned the claim after someone got in touch with the Nobel committee and got the response that the prize had been given to the IPCC, not to Mann et. al., and he was thus not a Nobel winner. That does not tell me whether the hockey stick is or isn't bogus, but it does tell me something about Mann that makes me very reluctant to trust anything he writes.

I could, I suppose, make longer lists of good guys and bad guys on both sides of this and other controversies—Pachauri, the head of the IPCC, would be on the same list as Mann, for his role in the Himalayan glacier controversy. So would some people on my side of other issues. But I think two examples are sufficient to make the point.

Patent Litigation Seen as a Feud System of Law Enforcement

I am currently working on a book on legal systems very different from ours; interested readers can find the draft webbed for comments on my site. This post is a first cut at something I intend to include in it.

One of the things that has struck me, looking at a wide variety of legal systems past and present, is the important role of feud—often but I think misleadingly referred to as blood feud—as a form of law enforcement. The essential logic of feud is simple: If you wrong me, I threaten to hurt you unless you compensate me for the wrong. It is a decentralized form of law enforcement. In order for it to work, it requires some mechanism that makes my threat of hurting you substantially more believable when you actually have wronged me than when you have not, in order to prevent the enforcement mechanism from being used instead for extortion. To put it differently, you need some mechanism such that right makes might.

For a simple example, consider the feud system of the Rominchal gypsies, the largest gypsy population in England, as described in Chapter 3 of Gypsy Law. If you wrong me, I threaten to beat you up. Both of us know that if you have wronged me, as judged by the norms of our community, my friends will back me and your friends won't back you, making it in your interest to either compensate me or leave town.

Feud systems (not, incidentally, the same thing as feudal systems—the words sound similar but are unconnected in both meaning and origin) are very common among human societies. In addition to the Rominchal, well recorded examples include saga period Iceland and traditional Somali. In the Icelandic case, the mechanism for converting right into might was an explicit law code and a court system. You sued the person who wronged you. If you won, the verdict was a damage payment he owed you. If he failed to pay, he had two weeks to leave Iceland, after which he was an outlaw, meaning that it was legal for you to kill him and tortious for anyone to defend him. The system functioned for about a third of a millenium—for details see the relevant chapter in my draft. The Somali version was somewhere between the Icelandic and the Rominchal, with customary law and customary mechanisms for setting up courts to arbitrate disputes—along with a fascinating system of prefabricated coalitions to deal with both paying damages and enforcing their members' claims.

Perhaps more interesting, there is good evidence that many, perhaps most, legal systems were built on top of preexisting feud systems. That includes Jewish law and Muslim law, both of which contain what I would described as fossilized evidence of a feud system, along with Anglo-American common law and Roman law.

Feud systems are not only a matter of historical interest—de facto, if not de jure, they still exist. One current example is patent litigation among modern high-tech companies such as Apple and Samsung.

Suppose Apple sues Samsung, claiming that Samsung's phones infringe some of Apples' patents.  Doing so costs Apple something, since lawyers have to be paid, but it also produces two benefits. There is some chance that Apple will win, be awarded damages, and be able to some degree to cripple Samsung's product line by refusing to license the relevant patents. And even if it loses, the uncertainty generated by the litigation will to some degree reduce Samsung's ability to compete with the iPhone.

If the legal system worked perfectly, Apple would always lose when its patents were not infringed and would be liable for the costs that its unsuccessful suit imposed on Samsung. But it does not work perfectly. The rights established by patent law are sufficiently fuzzy so that Apple has some chance of winning even when it is in the wrong. And, under most circumstances, if Apple loses it will not be found liable for costs, direct or indirect, that the suit imposed on Samsung.

Part of Samsung's response is to try to win the case in the courts. But the other part is to have or acquire a patent portfolio large enough so that it can plausibly claim that Apple infringes some of its patents, sue, and so impose costs on Apple to retaliate for the costs Apple imposes on it. As best I can tell, this is currently standard practice in the high tech world. Firms acquire portfolios of patents not primarily for their own use but as weapons with which to attack, or threaten to attack, other firms.

What I have just described is a feud system, with litigation taking the place of direct violence. Like other feud systems, its functioning depends on some mechanism making it easier to win when you are in the right, some way of converting right into might. Without that, the threat of suit can be used not to enforce rights but to extort money.

In theory, the court system provides that mechanism by making it easier to win an infringement case when your patents have actually been infringed. Absent the feud mechanism, the courts would have to work well enough so that suing innocent people on average lost money. With the feud mechanism, it is sufficient that suing innocent people and then having them counter sue you on average loses money, while suing guilty people on average makes money, even if they counter sue you—provided you have not really infringed their patents.

Whether this particular feud system works or is broken is a matter people  disagree about. Those who think it is broken describe the people they think are using it for extortion as patent trolls.

Comments welcome. 

Academic Orthodoxy: Official Lies

A commenter on a recent post of mine writes:

CC asked for examples of the reigning orthodoxy among academics. Here's a short list:

--There is no such thing as "race." It is not a scientific concept.

--Affirmative action is necessary because racism continues to be the primary cause of the poor performance of blacks in school.

--IQ tests do not measure anything real about human intelligence.

--IQ is not heritable.

--If government programs for the elimination of poverty have failed, it is for one of two reasons: 1) they have not been sufficiently funded; or 2) those implementing the programs have not been sincere.

--All differences between men and women are culturally determined.

If anyone doubts the extent to which these ideas dominate public discourse on college campuses, I invite that person to assert publicly a contrary view and see what happens. I say "publicly" because many people will tolerate such notions in private, but they will feel compelled to silence them if they are offered as part of the public discourse of the campus.

 I agree that everything in his list is part of current orthodoxy, with "all differences between men and women" not including obvious physical differences. Also that most or all of them are false—I'm not entirely sure that one couldn't have at least reduced poverty if a sufficiently large amount had been spent by sufficiently sincere people. 

I am curious whether anyone reading this is willing either to argue that the claims on the list are true, or at least defensible, or to deny that, in many parts of the academy, it would be imprudent for an academic without tenure to dispute them.

Should I Be Mad at Scribd?

Googling around, I have come across quite a lot of material I wrote on the Scribd site, including a sizable chunk from this blog, a sizable chunk from the Miscellany (a book my wife and I wrote and self-published on our medieval hobby), the full text of several of my commercially published books, and what appears to be the full text of translations of my first book into several languages.

With the exception of the translations, all of this was material already available online for free from my site. The commercially published books include my name as author and my copyright notice, so although the publishers might possibly object to their being up without my or their authorization, I don't see much reason why I should. Some people may read the books on Scribd instead of on my site, but the only downside of that from my standpoint is that they are less likely to come across other material on my site in the process. And the upside is that some people might find and read the books on Scribd who otherwise wouldn't.

I am unhappy about the first two things I listed, however, because, so far as I can tell, the material copied from this blog contained no link to this blog, and the material copied from the Miscellany did not contain either my or my wife's real names—articles in the Miscellany are given under the names we use in the SCA, since it is about our medieval hobby—or a copyright notice, or any way that a reader could discover that the material was part of a larger book that he might want to look at.

I accordingly emailed Scribd to complain. The response I got was that they could not add anything, such as a credit line or a URL, to material that had been uploaded to their site. I accordingly asked for contact information for the people who uploaded it, and was told that that could only be provided via a subpoena. I have put comments on the text giving the additional information, but I don't know how many people who read the text will bother to look at the comment.

So far as I can tell, the only thing I could do is to file a takedown notice, which I am reluctant to do, and then upload the material to Scribd myself, thus keeping it available, but with the additional information about who the author is and where the rest of it is to be found. I may nor may not bother.

Suggestions?