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The Origins of Property: A Parable with Morals

The Parable

Once upon a time there was a primitive tribe that hunted and gathered in a verdant forest in a temperate clime.  

I call them a "tribe" but that name may mislead if it suggests some rigorous form of  social organization.  In fact, the group was about as un-organized as it is possible for people to be.  There were among them no elders, chiefs, shamans or any other kind of leader with authority over his fellows. With one exception-- which we will soon discuss -- there were no laws, rules or taboos that were obeyed or enforced among them and no judges or police to enforce them.

This lack of norms was reflected in their language which (luckily for our narrative purposes) was much like modern English but which lacked any moral or legal vocabulary.  The natives never spoke of 'right' or 'wrong', 'legal' or 'law'.  They had no words for 'promise', or 'contract' and none for 'property' or 'ownership'.

Even so, as I just averred, there was one rule that the natives generally acknowledged and mostly conformed to. They called it "The Rule".

The Rule: No Bullying!

By 'bullying' the natives seem to have meant, roughly, hurting other people or using force or the threat of force to compel others to do what they would otherwise not do. But not every use of force or infliction of harm was regarded as bullying. 

It was, for example, not considered bullying to use force or its threat to defend oneself or someone else against a bully. The Rule permitted self-defense and "other defense" and this had important consequences for all of tribal life.

To understand these upshots it is necessary to understand that the tribe's aversion to bullying did not mean that they were averse to violence or the use of force. These were hard men and women in a hard time. They hunted for food with primitive tools and competed for game with lions and bears. Many among them prided themselves on their martial skills and relished a good brawl.  They would set to with enthusiasm given any excuse and, under The Rule, defending against bullying was an excuse.  

That meant that any native attempting to push some weaker tribesman around might find the tables quickly turned as many defenders rushed to intervene and -- happily unrestrained by the The Rule— teach the would-be bully a brutal lesson.

Yet The Rule had application even here.  The natives recognized that things could go too far: that using too much force-- more force than was required to stop the bully-- could itself turn into bullying.  If they judged that self-defense was turning into a retaliatory beating, other natives would turn their efforts to protecting the would be bully.  Bullying, even of bullies, was not tolerated.  

Such bullies as there were amongst the tribe were, of course, aware of these dangers and so would be careful to pick victims too weak to fight back and catch them when there were alone.  But when the other members of the tribe heard about such an incident they would track the bully down and force him to make it up to the victim.  So, for example, if the bully had snatched an apple from the victims hand he might be forced find him another. If the victim were injured, the bully might be forced to hunt and gather for him until the victim recovered.  This use of force-- to compel compensation-- was not regarded as bullying and was also exempt from the The Rule.

Sometimes too, if the tribesmen thought the bully was likely to repeat his infraction they might administer a modest beating and threaten him with more, "to teach him a lesson", as they would say.  And these acts and threats of violence were not regarded as bullying either so long as they were proportionate to their avowed purpose-- to prevent further bullying.   

In this way The Rule was self-enforcing: Those who did not obey it were likely to suffer at the hands of those who did. This enforcement depended entirely on the tribesmen's general willingness to intervene on behalf of the bullied and such intervention was purely voluntary.  The rule was not understood to require anyone to defend anyone else --or even to defend oneself-- against bullying. In any case, there was no mechanism for enforcing such a requirement. To attempt to force anyone to fight bullies, everyone acknowledged, would itself be bullying.

The willingness of the tribesmen to come to the defense of their fellows must therefore be counted a kind of altruism; albeit a self-consciously reciprocal altruism. "If I defend my neighbor today, he may defend me tomorrow",  the natives often said.  And just because enforcing The Rule was voluntary, anyone with a reputation as a coward might find himself with few defenders when a bully appeared.  Then too, it was common practice for rescued victims to show gratitude to their defenders by doing them services and favors.  These acts of gratitude were not thought of as payments due or as morally required -- as I said, the natives did not speak the language of contract, debt or  moral obligation-- but as simply prudent since, as they would say, "you never know when the next bully will come round".

Now I said that the native's language possessed no words for "property" or "ownership".  Of course one can have a thing and not have a word for it but the natives certainly did not enjoy the kind of enduring ownership of things that we associate with these words.   

In the morning most of men and women of the tribe would go off to forage for food.  When they returned to the general campsite in the evenings each would look anew for a place to set a fire and bed down, and every night this was a matter of first-come, first-served.  It did not matter if a tribesmen had been the first to discover a particular cozy spot or if that native had (as philosophers say) "mixed his labor" with that campsite by clearing trees or erecting a lean-to.  It didn't matter if that particular native had slept in that particular spot, whenever he could, for season after season.  On any evening he might return and find someone else was already sleeping there and there would be nothing to be done about it.  He could not forcibly evict the interloper because that would be regarded as bullying and the other Tribesman would use it as an excuse to "teach him a lesson".

As it was with land so it was with things.   The natives knew how to knap stone tools and scrape hides for clothing.   But if any other native found a tool or fur sitting unattended she could simply walk off with it and there was nothing the artisan could do to reclaim the fruits of his labor.  He could not use force or even its threat, because that would be regarded as bullying.  

It was the same with the food.  A hardworking native might scramble all day to collect a few nuts and berries but the moment he set them down others who had done nothing all day but lounge by the fire might scoop them up and eat them all.   And there would be nothing the hard working native could do about it. No bullying!  

Observing all this, anthropologists might say that this was one of those communities which lacked even the ""concept of Property".  But then anthropologists say many foolish things.   It was true that any item any tribesman left unattended could be taken by any other no matter what its history or provenance.  But it was also true that once a native had taken something into his possession The Rule protected his possession of it against any who would try to take it away.  

If the fiercest fighter in the village happened to leave his favorite spear unattended for a moment, the weakest tribesman might pick it up and use it as his own.  If the fighter tried to snatch it back his behavior would be regarded as bullying and would invite a beating from his fellows. A beating which would likely end with his being forced to return the spear and perhaps other compensation.   

Likewise, while who-slept-where was a matter of first-come, first-served, once a native had encamped on a particular spot no one would dare to try to forcefully displace her. Thanks to the Rule she was safe, "safe as houses" as they say.  

So a native might be said to own the clothes on his back, the ax in her belt or the apple in his hand for as long as he or she held on to them.  Any native was the sole proprietor of any land where she lay down at night-- until she got up the next morning. Anything that you could only be deprived of by being somehow pushed around was your property by dint of the Rule's protections against being pushed around.   

What each native owned was limited to what he physically possessed at any given time and while this kind of ownership is obviously limited it was sufficient to sustain a robust economy with distinct economic roles.   Thus: Every morning while some natives would go off to hunt and gather, others would stay behind to make tools, scrape hides or just squat on the choicest camping spots. Come evening, trading would ensue.  Fruit, nuts, and game would be traded for tools and clothes and choice campsites close to the fire.

These transactions were tricky because the natives had no institutions of promising or contracting. As I said the native language did not even include words for "promise" or "debt".  If you handed over your piece of fruit in the expectation that the other guy would give you a nut, and he didn't, there was nothing that you could do and no one to complain to.  Any attempt to forcefully get your fruit back would be treated as bullying and others might forcefully restrain you.  No blame or penalty was associated with frustrating others expectations in this way.  

This made trading complicated, but not impossible. Typical exchanges among the natives would involve either perfectly synchronized handings-over or complicated dances in which the parties would set down their goods at some distance away then slowly circle round till they had traded places and possessions.  

If you wanted a squatter to yield you a choice camp site, you might place a tempting tidbit just out of his reach, so he would have to vacate his ground to retrieve it.  If you misjudged your timing and he or someone else got to the site before you, you were out of luck. No bullying!

Cumbersome though it was, the system worked. The artisans and squatters were fed and hunters and gatherers were equipped, clothed and usually slept where they might wish. The property thus traded was property because of The Rule. And thanks to The Rule the trades were always voluntary and usually accomplished to the satisfaction of all parties involved. No one was bullied into giving up their property.

But again I fear I am making the natives sound too pacific, an impression I may correct by pointing out one more wrinkle in the natives understanding of The Rule : It was not counted as bullying to use violence against someone who had given you permission to do so.

Why, you might ask, would anyone give their permission to be hurt? Well one reason (we will soon find others) was simply recreation: It provided a way for the stronger tribesmen to exercise their violent impulses without bullying.

Typically, these permissions to mutual harm would be exchanged reciprocally in an ancient ceremony.  It would begin when one tribesman saw another he thought a worthy opponent.  He would catch his eye and ask the ritual question,  "Who are you looking at?" By which was meant, "Do I have permission to do you as much violence as I possibly can?" If the other tribesman were disinclined to fight he would say, "Can't we all just get along?", and slink away.  But if he was up for it he would give the customary reply, "You want a piece of me"? By which was meant "I herewith grant you said permission provided you will grant me leave to beat you senseless".  To which the expected retort was "Bring it! " ; meaning "I do herewith grant you said permission!"  

At this point the witnesses-- and there was always an audience -- would signal to the combatants that they recognized that reciprocal permissions had been exchanged by loudly chanting "Get it on! Get it on!", by which they conveyed to one and all that, until the permissions were rescinded, they would not regard anything one combatant might do to the other as bullying.  

Thus reassured that their fight would not be interrupted, battle would commence. At any point in what followed either party could rescind his permission by saying the ritual word "Uncle".  To attack a man after he had said "Uncle!" was regarded as bullying, and hence subject to violent interference from members of the audience.  This, of course, is one of the reasons the fighters would take care to make sure there was an audience and, if possible, one in which both fighters had allies.  Another reason was to protect a fighter from a poor loser's later denying that he had given permission and denouncing the winner as a bully.

In this quaint fashion the tribe survived for many years. Though, as economists might have predicted, it did not prosper or progress as much as it might have.  No native craftsman would labor very long over a spear that anyone might walk off with as soon as he or she set it down.  And no one bothered to hunt or gather for more food than they could immediately eat or barter away.  So the natives' tools remained primitive and their stores of food so small that a hard winter or drought could lead to general famine.  Life was short, but, thanks to The Rule, not as nasty or as brutish as it might have been.

Then one day disaster struck...

The Origins of Property II

The Morals

First, some quick clarifications.  

I deprived the tribe of a moral vocabulary to lubricate the storytelling.  I do not claim the tribe as described are without morality.  Indeed as an advocate of Retributive Ethics I think that pretty much all of morality is already implicit in the principle, "No bullying"; so  I think the natives begin the story with all the morality there is to be had.

This is a story about the origins of some kinds of property, not morality.  Readers of these posts will recognize it as a dramatic staging of the Retributive Theory of Property. But you do not have to be a Retributivist to think that hurting others is, except in exceptional circumstances, a morally bad thing. And if you agree with that then you should agree that in following The Rule our natives are doing the right thing.

The Rule, as the natives understand it does not ban all violence and I assume we agree that the exceptions it allows are also morally correct. For example, The Rule allows violence to stop bullying and I take it that we agree that it is morally permissible to use violence in defense of ourselves or others.

Another circumstance in which The Rule permits violence is the one in which one person gives another permission to do him harm and I expect all readers to agree that in this circumstance too violence is morally permissible. When one football player tackles another he is doing violence that would get him arrested outside the arena but-- provided the violence is within the agreed to rules-- we don't think his actions on the field are morally wrong. We think it is permissible for the players to knock each other around because they have given each other permission to do so. No one denies this, so I won't bother arguing for it here but will note that this aspect of our moral authority over ourselves-- our power to permit violence against ourselves-- has been mostly overlooked by philosophers, though it is central to Retributive Ethics.

If you agree to this much then it seems to me that you must agree that the permissions the tribe grants Wilt at the end of the story are moral permissions and that his rights vis a vis the plot of land are moral rights.

We think The Rule is morally correct. But notice I neither assert nor deny that the natives themselves regard The Rule as a moral rule—whatever that might mean. I suppose that some might protest that this is a defect in the story. To follow a rule like The Rule mustn't the natives already be convinced that is morally correct by some higher moral standard? Mustn't they think, say, that it maximizes general utility?

No. That is a confusion about rules and rule following.  For my purposes we can regard The Rule simply as a convention in David Lewis's sense. That is, it is a perhaps arbitrary, but self-perpetuating, solution to an ongoing co-ordination problem. That problem is how to maximize chances of survival confronted with a hostile environment and surrounded by potentially hostile neighbors. To make sense of the natives' preference for The Rule neither we nor the natives need to think that it is the only equilibrium solution there could, or ought, to be.

I denied my natives words for "right" or "wrong", but that does not keep them from behaving morally. I also denied them words for "promise" or "contract" or "obligation". Do the natives make promises?

Well note that Wilt does not promise, even tacitly, to fight the next Bear that comes around. Neither does the community promise to reward future bear fighters as they have Wilt. And interestingly neither Bob nor anyone else promises not to forcefully resist if at some point in the future Wilt has to evict them from his land.

Still, some readers Wilt protest, Bob's giving permission to the others to use force against him if he trespasses on Wilt's land functions, in the story, very much like a promise not to go on Wilt's land.

I happily concede the point. It confirms the Retributive Theory of Promising: the view that to make a promise just is to give someone a conditional permission to do you harm.

Now to the morals.

MORAL 1: Hobbes was wrong.  

Hobbes and many after him held that in an absence of government and laws -- in a "state of nature"-- there could be no property.  At the beginning of our story our natives are in that state.  They lack a government and the enforcement of their only rule is voluntary. In Hobbes' terms their situation is like that of sovereign nations interbellum:  a time of truce in a war of all against all.  And yet, pace Hobbes et. al., our natives have property and even an economy.

Hobbes is only a first in a long tradition of confusing the existence of property rights with their successful enforcement.  It is not a confusion that is often made about other rights.  Thus we think that even absent government and laws, people have a right to self-defense.   We think everyone has that right even if he or she is too weak to defend him or herself; even when no one will come to their defense.  They have that right even if they cannot enforce it.

Property rights, like the right to self-defense, are moral permissions ("privileges" in Hohfeld's terms).  To have the right to self- defense is to have the moral permission to forcefully interfere with attackers.   To own some land is to have the moral permission to forcefully interfere with trespassers. At bottom, having that moral permission is all there is to ownership: It is not morally permissible to kick people off your land because it is your property; it is your property because it is morally permissible for you to kick people off it.

But "may" does not imply "can".  You can have property rights even though you cannot enforce them and even if social arrangements make no provision for defending you against their violation. In our story a native's rights against bullying are enforced by the spontaneous vigilantism of the other tribesmen.  That does not give them rights they would not otherwise have but it helps us see more clearly what those rights amount to.

We can see that our tribesmen have property rights even at the very beginning of our story because they have the right to self-defense. The right of self-defense is an ownership right: it is a moral permission to forcefully interfere with others if they should try to trespass against our bodies.  And because our bodies are objects in the world, our ownership in them emanates to other things:  however much I might admire the shirt on your back or the apple in your hand, if I cannot lay hold of them without doing violence to you, then your right to self-defense makes it permissible for you to forcefully prevent me from acquiring them.  

Thus in the state of nature you own what you physically possess. This may not seem much, but our fable illustrates how it might be enough, in principle, to sustain an economic order: a market red in tooth and claw.

MORAL 2: Locke was wrong

In our story Wilt acquires a new kind of property. He comes to own something not in his immediate possession. Things that once belonged to no one-- a vacant plot of land and its contents-- have become his.

How this might come about is a long standing philosophical problem with few plausible answers.

There is the "first use" or "first occupancy" theory : the idea that the first person to discover a thing therefore owns it. This theory is often credited to the wonderfully named Samuel von Pufendorf. Alas, Pufendorf seems to have had no arguments for this arbitrary principle . Why not second use, or third? (In any case, I've always found it hard to believe that Pufendorf really was the very first person to discover this idea. Perhaps he was just the first to shout "Dibs!".)

John Locke's theory was that we begin by owning our own bodies and then by "mixing our labor" with other things -- clearing land, planting crops and so forth -- we somehow mix our self-ownership into these other things. This isn't much of a theory; it isn't even a good metaphor for a theory. As Robert Nozick observed:

...why isn't mixing what I own with what I don't own a way of losing what I own rather than a way of gaining what I don't? If I own a can of tomato juice and spill it in the sea so its molecules... mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?

But then Nozick himself has no better story to tell. He concedes that any theory of property needs to explain "first acquisition" somehow, and suggests, very tentatively, that it might have something to do with laboring to increase the value of things. For some reason Nozick declined to call this "the surplus value" theory of ownership though the name would have been apt.

Yet Wilt -- our Wilt-- was not the first to discover his land. Nor did he mix his labor with it. Neither upon it did he spin nor did he toil. We could have told our story so that he had never set foot on it before acquiring it. I conclude therefore that discovering first, mixing your labor with or improving things is no more essential to their first acquisition than is killing bears.

It is true that Wilt could be said to have earned his land by doing something the community valued and that all those who gathered round the campfire hoped that by rewarding him they would be increasing the general welfare. But this speaks to their motives for granting him the land, not to the substance of the grant itself. It might turn out that their hopes are misplaced-- that Wilt grows so fat and placid on his little plot of land that he becomes useless during the next ursine attack. Even so, whether or not his possession promotes the general happiness, the land will remain his so long as it is morally permissible for him to kick the other tribesmen off it and it will be permissible for him to do so because they gave him that permission; even if they come to regret it.

Three Quarks Competition

Abbas Raza, founding editor of Three Quarks Daily, has asked me to announce that it is time again for the Annual 3Quarks Philosophy Competition.  Patricia Churchland will be judging this year!

As I wrote on the occasion of the first competition:

"I think competitions like this are going to become increasingly important in future years. After all, the only known defense for the absurd anachronism of hard copy academic journals is that the competition for space on their expensive printed pages is essential to maintaining academic standards. Maybe so, but hardcopy journals are soon going to disappear and, if standards are not to disappear with them, academics had better quickly figure out other ways to sort out what is worth reading. Congratulations to 3Quarks for conducting an interesting experiment. "

The experiment, I am happy to observe, has become an institution.

And Three Quarks Daily is indeed worth visiting every day  for its original and linked content. Thanks to Abbas's  unerring eye for what is worth reading it seems to me to have become  The Paris Review of the internet age.

Trolley Problems

You've heard this one before:

TROLLEY
A runaway trolley is coming down the track. It is headed towards five people who cannot get out of its way. A Passerby realizes that he can save the five by throwing a switch and diverting the trolley down a siding, but he also realizes that if he does so, the trolley will kill a Lone Man standing on the siding.

Should you divert the trolley? Lots of folks say, "Yes!" Whether or not they are right is an interesting problem but it is not what philosophers call "The Trolley Problem". That problem involves a different case:

FAT MAN
A runaway trolley is coming down the track. It is headed towards five people who cannot get out of its way. A passerby realizes that if he pushes a nearby fat man onto the tracks his bulk will stop the trolley before it hits the five, though the fat man himself will be killed.

Most people, including those who think it is okay to turn in TROLLEY, think that it is not okay to push the FAT MAN. "The Trolley Problem" is how to reconcile these two answers. In both cases it seems you can do something that will save five people but only by killing one. How can anyone think it okay to turn in TROLLEY but wrong to push the FAT MAN? What difference is there between the two stories that can possibly make a moral difference?

In the almost forty years since Judith Jarvis Thomson first posed the problem in this form there have many attempts to solve it but none is generally accepted as successful. Indeed a general consensus seems to have developed that the "folk intuitions" (as philosophers call them) about the difference between these cases are simply irrational.

Thus a Utilitarian like Peter Unger can argue that, since there is no difference, it must be morally okay to go around doing things like pushing fat men under trolleys so long as it promotes the general happiness.

Meanwhile Judith Jarvis Thomson concludes that, since there is no difference between the cases, it must be wrong to turn in TROLLEY and so FAT MAN represents a reductio ad absurdum of Utilitarianism.

Both sides explain away "folk intuitions" that the cases are somehow different as a psychological aberration. Folks feel better about killing other folks in TROLLEY-- this theory goes-- because they are more comfortable with throwing a remote switch in TROLLEY than they are with the up close shoving that FAT MAN requires. There are even psychological "experiments" and (God help us) neural imaging studies that are supposed to explain (away) these folksy confusions.

In a conflict between folk intuitions and philosophical theory I'll bet on the folk every time. In this post, I'm not going to take a position on whether or not it is permissible to turn in TROLLEY or push the FAT MAN. My goal instead is to show that, as described, there are subtle but important differences between the FAT MAN and TROLLEY cases; differences that can make a moral difference in other circumstances, but differences that have, hitherto, gone overlooked by philosophers.

We begin with some different thought experiments.

SACRIFICING OTHERS
A runaway trolley is coming down the track. It is headed towards a Lone Man on the tracks who cannot get out of the way. However that man is standing by a switch which, if thrown, will divert the trolley down a siding. In that case the man will be safe but he can also see that, in that case, five people standing on the siding will be killed.

Is it morally permissible for the man to throw the switch? If it is permissible, what of this:

SHIELDING ONESELF
A man sees that someone is about to shoot him. To protect himself, he grabs an innocent bystander and uses her as a shield.

Now there is a line of thought that says that when one's life is in danger, anything goes. The philosopher Hobbes seems to have held something like this position. But this seems to me to throw morality out the window when it may be most required. It seems to me that SHIELDING ONESELF and SACRIFICING OTHERS are clearly impermissible and in what follows I'm going to assume you agree with me.

Now consider.

SELF DEFENSE
A runaway trolley is coming down the track. Luckily there is no one in its path. A passerby, Burns, sees this but he also notices that Homer, someone he hates, is standing on a siding. Burns realizes that if he throws a nearby switch, the trolley will be diverted down the siding killing Homer. Homer can see all this too and when he sees Burns moving towards the switch he correctly guesses his intent. Homer cannot get out of the way but he is not defenseless: he has a gun. He draws it and shouts "Stop or I'll shoot!". But Burns ignores him and keeps moving the switch.

Assuming all these facts, I expect you to agree with me that it would be morally permissible for Homer to pull the trigger. It seems an ordinary case of self-defense albeit against an unusual attack.

Now for the interesting case:

SELF DEFENSE WITH COLATERAL DAMAGE
A runaway trolley is coming down the track. It is headed towards five people who cannot get out of its way. A passerby, Burns, sees this and realizes that he can save the five by throwing a switch and diverting the trolley down a siding. Burns also realizes that if he does so the trolley will kill Homer, whom Burns hates. Homer can see all this too and when he sees Burns moving towards the switch he correctly guesses his intent. Homer cannot get out of the way but he is not defenseless. He has a gun…

The only external difference between this case and SELF DEFENSE is the presence of the people on the track but I have also subtracted any reference to Burns' motive. Feel free to imagine that Burns is primarily motivated by a desire to save the five, or primarily by a desire to kill Homer, or by the combination of the two, but be prepared to say why that makes a difference to the central question.

The central question being: is it permissible for Homer to use his gun to stop Burns?

I do not think that it is. Burns is going to divert the trolley and prevent the death of five people. If Homer or anyone else stops Burns, they will be causing the death of five people and preventing the death of only one. Of course, Homer's life is at risk, but we agreed when we considered the SACRIFICING OTHERS case that it was not permissible for him to save his own life by doing something that would cause the death of people who were no threat to him. That seems to apply in this case too, indeed more so because now he will be harming Burns in addition to causing the death of the five. Though I think that Homer would still be responsible for the death of the five if Burns were stopped by Homer's yelling "Stop". Nor it doesn't seem to me relevant to the case what Burn's motives happen to be.

If that is correct then we have discovered something. People who say that it is wrong to turn in TROLLEY sometimes argue that this is so because killing the man on the siding infringes his rights. But we seem to have just discovered that the man on the siding does not, in this circumstance, have all the rights that people ordinarily have. He doesn't have a right to self-defense. He lacks that right—at least against Burns-- because in this circumstance he can defend himself only by sacrificing others. And if Homer lacks the right to self-defense here, so does the Lone Man in the original TROLLEY case. As described, he didn't have a gun, but it doesn't matter: even if he did, he would not have had the right to use it save himself.

Now what about the Fat Man?

THE FAT MAN DEFENDS HIMSELF
A runaway trolley is coming down the track. It is headed towards five people who cannot get out of its way. A passerby, Flanders, realizes that if he pushes a nearby a fat man onto the tracks his bulk will stop the trolley before it hits the five, though the Fat Man himself will be killed. Flanders decides to push the Fat Man. The Fat Man sees all this, but he is not inclined to sacrifice himself to save the five and when he sees Flanders moving to push him onto the track he draws his gun and threatens "Stop or I'll shoot!". Flanders keeps coming...

Is it morally permissible for the Fat Man to shoot? All the arguments that applied in the case of SELF-DEFENSE WITH COLLATERAL DAMAGE seem to apply here as well. Flanders is going to do something that will keep five people from being killed. If the Fat Man or anyone else stops him they will be causing the death of those five people and saving the life of only one. The Fat Man could claim he was acting in in self-defense, but isn't defending himself in this case as bad as it is in SACRIFICING OTHERS?

Maybe, but there are differences: they have to do with the different alternatives available to Homer and the Fat Man.

Let us pause to remember that when we are deciding whether any action is permissible it is always relevant to ask what alternative actions are available. We all agree that it is morally impermissible to kill. But in a case in which one's only alternative to killing one person is to kill many people, most of us think that it is morally permissible if not mandatory to kill the one rather than kill the many.

Now the TROLLEY case is interesting because the passerby's alternatives are not whether to kill one or five but whether or not it is permissible to kill one rather than allow five to die. Some people think that allowing people to die is just as bad as killing them. But this is a minority view. Most people think that harming people is morally worse than allowing them to come to harm; TROLLEY tests that opinion.

The difference between allowing harm and causing it is especially vivid when preventing harm to others involves incurring harm ourselves. When the Fat Man stares at the speeding trolley his choice is whether to allow five strangers to die or to prevent their death by sacrificing himself. No one (at least, none of us folks) thinks this kind of sacrifice is morally required of him and none of us thinks that this is equivalent to his killing five people. If the Fat Man jumped on his own he would be a hero precisely because he would have been acting above and beyond the demands of morality.

But the situation is different in the case where THE FAT MAN DEFENDS HIMSELF. If the Fat Man allows himself to be pushed, he will be sacrificing himself to save five. But if he resists he will be causing their death by preventing their rescue. Notice that this is not the choice that Homer faces in SELF DEFENSE WITH COLLATERAL DAMAGE. Homer's choice was between causing the death of the five -- by preventing their rescue—or allowing the five to be rescued. In the latter case, if the five are rescued, it won't be Homer's doing, but in the former, if the five are saved it will be the Fat Man who saves them, even if involuntarily.

Killing people when one has the alternative of letting them live is, other things being equal, plain murder. But the Fat Man's choice of whether to defend himself is between killing people versus preventing their death, and we view cases like these as morally different.

The most famous example of a dilemma like our Fat Man's is Judith Jarvis Thomson's Violinist case.

THOMSON'S VIOLINIST
You are knocked unconscious and kidnapped. When you wake you find your circulatory system is plugged into the body of a sickly violinist. The police have apprehended the kidnappers. They were fans of the violinist who were trying to keep him alive. You are now free to go but you are told that if you unplug yourself, the violinist will die. Only if you remain hooked up to the violinist for many months does the violinist have any chance of survival.

In Thomson's story your choice is between unplugging-- and thus causing the death of the violinist,--or sacrificing months of your life to prevent the violinist from dying. Thomson thought that, while it would be admirable of you to play the Good Samaritan in such a case, you were not morally obliged to do so. It would be permissible for you to unplug.

While farfetched, Thomson's story was not frivolous. It was meant to be analogous to:

ABORTION
A woman is raped. She discovers that she is pregnant. Her choice is to have an abortion or to bring the fetus to term.

Set aside the usual arguments about whether or not a fetus is a person. The violinist is certainly a person, but if we think you are not obliged to stay plugged into him, why should we think the rape victim is obliged to play Good Samaritan to the "person" plugged into her?

People have conflicting intuitions about such cases, and intuitions can change when variables vary (e.g. how long must one remain plugged in?). But there is a regularity in everyone's responses which is captured by a principle that Kadri Vihvelin and I dubbed "The Deontological Equivalence Principle"

The Deontological Equivalence Principle
Causing a death when one's only alternative is to prevent it, is morally equivalent to allowing a death when one has the alternative of preventing it.

The Principle does not take sides on whether you may or may not unplug. Instead it predicts that you will think it impermissible to unplug yourself from the violinist only if you think that you would have been obliged to plug yourself in, if you had been asked ahead of time. Alternatively, if you think morality does not require you to sacrifice yourself to save others, then you will think that morality permits you to cause their death when your only alternative is to sacrifice yourself to save them. Or again, if you think it is very, very bad, but not murder, to refuse to make a small sacrifice to save a life then you will think it just as bad, but not worse, to cause a death when, with the same sacrifice, you could prevent it.

If you think the Fat Man is morally obliged to throw himself onto the track to save the five, then you will think it equally wrong for him to prevent Flanders from pushing him. On the other hand if, like most of us, you think that the Fat Man is not required to throw himself in front of the trolley, you will agree that he is not obliged to let Flanders push him in front of it.

If that is right, then it is morally permissible for the Fat Man to defend himself against the push, just as it is permissible for him to refrain from jumping on his own. And that means the Fat Man does have the right to self-defense even though the Lone Man on the siding does not.

And we may note that the same arguments apply to all the cases to which Fat Man is sometimes compared. Thus:

FORCED TRANSPLANT
You learn that a doctor has plans to kidnap you and use your vital organs to save the lives of five other people. But you have a gun…

UTILITARIAN JUDGE
You learn that a judge plans to hang you for a crime you did not commit in order to prevent riots in which many people will be killed. But you have a chance to escape…

In both these cases, your eluding the threat will lead to the death of innocent people, but we may think that permissible given that your only alternative is to sacrifice yourself to prevent those deaths.

What does all this show?

Well, there are some theories of self-defense that entail that a person has the right to self-defense if but only if it is impermissible to harm them. Perhaps that is the theory that underlies the intuition that it is permissible to turn in TROLLEY but not in FAT MAN.

Then too, according to many accounts of self-defense, the right self-defense entrains the right of "other-defense"; so that if someone is permitted to defend themselves against an action then others are likewise permitted to intervene to help them prevent it.   Perhaps, when folks express qualms about pushing the Fat Man they are sensitive to the fact that it may be permissible for third parties to forcibly restrain them.

Or, maybe, folks see a moral difference between, on the one hand, saving the lives of five people and, on the other, forcing someone else to save those lives.

Perhaps, at the end of the day, we'll decide that folk's reasons, whatever they are, are not good. But to be entitled to that conclusion we'll have to work a lot harder at understanding the reasons folks say what they do.

Folks are smart; smarter than philosophers give them credit for. I recommend philosophers do fewer experiments, and use more imagination.

Self Defense

If we have any rights, we surely have the right to self-defense. And yet self-defense has proven very puzzling to Rights theorists. To see why, take a simple case:

VILLAINOUS AGGRESSOR
There are two agents, AGGRESSOR and VICTIM: AGGRESSOR resents VICTIM for his sauve good looks and skill on the dance floor and has made it clear that he intends to kill him. One day AGGRESSOR shows up at the dance hall, gun in hand. He takes a shot at VICTIM but misses narrowly. He prepares to fire again, taking more careful aim, but VICTIM too has a gun and his only hope of surviving is to return fire and kill or disable AGGRESSOR.

Is it morally permissible for Victim to shoot aggressor? Of course! But now here's the puzzle. Rights Theorists have wanted to say:

1. It is permissible for VICTIM to shoot AGGRESSOR because VICTIM has the right to self-defense.
2. VICTIM has the right to self-defense because he, like everyone, has the right not to be killed or harmed. (That is why, if you are attempting to kill or harm him, you are doing something wrong.)
3. In defending himself, VICTIM will kill or harm the AGGRESSOR.
4. If the AGGRESSOR, had a right not to be killed or harmed, then it would be impermissible to kill or harm him.

The puzzle is: what happened to AGGRESSOR’s right not to be harmed?

It seems we must say that, by launching his attack, the attacker somehow loses his right not to be harmed. But where does it go?

Note that wherever it goes it doesn't go very far: Suppose that AGGRESSOR takes his second shot and his defective gun explodes rendering it useless and leaving him wounded and helpless on the ground. AGGRESSOR is no longer a threat and now most people (well, anyway, most philosophers) think it would be wrong for VICTIM to draw his gun and execute the now helpless AGGRESSOR. Apparently, AGGRESSORs right against being harmed returns as soon as he is no longer a threat to VICTIM’s life.

And yet there must be more to AGGRESSOR’s losing his right against harm than his just being a threat. After all as soon as any victim decides to defend himself against any aggressor he becomes a threat to that aggressor but we don't want to say that deprives a defender of any rights.

So maybe we should say that the AGGRESSOR's right not to be harmed doesn't go away at all? Couldn't we say that while AGGRESSOR retains his right not to be killed, VICTIM’s right to self-defense is more stringent or weighty than a simple right not to be killed and so it overrides or trumps the AGGRESSOR's right?

But that doesn't seem right either. Even acting in self-defense you have to respect some people’s right not to be harmed. Thus it would not be permissible for VICTIM to defend himself by grabbing some innocent bystander and use him as a shield against AGGRESSOR's bullet. The bystander’s right not to be harmed is not trumped or overridden by VICTIM’s right to defend himself.

So it must be something specific to the AGGRESSOR that removes, diminishes or discounts his right against being harmed; something that distinguishes AGGRESSOR from the bystander. But what can that be?

Isn't the answer obvious? AGGRESSOR, unlike the bystander, is a bad guy. He is trying to do something morally impermissible and for that reason he forfeits his claims against others harming him.

Alas, this collides with the problem of "innocent threats". Two examples from the literature:

FALLING MAN
Out for a walk one day, this man was swept up by a tornado. Now he is plummeting towards earth. When he strikes he will fall directly on VICTIM.  With VICTIM's body cushioning his fall the FALLING MAN may survive but VICTIM will certainly be killed. VICTIM cannot get out of the way, but is carrying a ray gun which he can use to vaporize the falling man and save himself. *

HUMAN SHIELD
An enemy has sent an automated tank on its way to kill VICTIM. VICTIM has an anti-tank gun and can destroy the tank. To discourage this, the aggressor has strapped an innocent passerby to the front of the tank to act as a human shield. Victim can save himself only by killing this person. *

In both these cases most people would say that it is morally permissible for VICTIM to defend himself even though, regrettably, this would result in the death of an innocent person. And by "most people", I do not mean just "most philosophers" or "most undergraduates when given questionnaires". I mean that it is the nearly unanimous opinion of all mankind, in virtually every human society of which we are aware, in every legal system ever devised, that this is so. No court-- not now, not ever-- would hold VICTIM guilty of wrongful killing if he defended himself in these situations. No work of literature or drama has or would treat a victim’s refusal to defend himself in such circumstances as anything less than heroic; that is, as a sacrifice beyond the call of moral duty.

All of which seems to leave the right theorists with a choice of bullets to bite.

Judith Jarvis Thomson and Frances Kamm conclude that, given that it is permissible to kill innocent threats, we just have to say that that FALLING MAN and HUMAN SHIELD, because they are threatening VICTIM’s life, have forfeited their rights not to be harmed no less that the villainous AGGRESSOR, albeit through no fault of their own.

This seems odd and, again, opposed to common sense. No jury-- not now, not ever-- would convict these innocent threats of any crime were the Victim to be killed. The Shield and the Falling Man do not choose to cause death Yes, VICTIM’s death would be a bad thing, but it wouldn't be their fault any more than it would be a bystander’s fault. How can their actions, if they can even be called that, represent a forfeiture of their rights?

But then what is the alternative?

Now, Me

My topic is the state of mind of people who utter sentences containing indexicals; sentences like "I am here now".    It is a subject much discussed in recent years but invariably it has been addressed as an issue in philosophical semantics: as a problem about what indexical words mean.  I want here to pursue a different and, I hope, more productive approach ....     (...with a new way of doing epistemology in the bargain.)

The Retributive Theory of Property

Property rights are collections of rights. In the first place: for something to be your property you must have the right to use or enjoy that thing. In the second place, you must have rights of control: rights that others not use or enjoy that thing in certain ways, except by your permission. Thirdly, though perhaps not necessarily, you must have the right to transfer the former two rights to someone else (as when you give your property to someone else) and fourthly the right to some form of compensation should someone infringe the preceding rights. Each of these rights, moreover, might be divided and limited in various ways. You may have the right that others not walk on your property, but not that others refrain from burrowing underneath it or flying over it. You may have a right to cultivate your own garden, but not to grow opium therein.

And so on. Acknowledging all this complexity, let us set it aside for now and focus on clear cases of the least complicated sort. I have an apple in my hand. I may eat if I choose, use it to make a pie or cider or let it rot. I may give it to someone else. You may not eat my apple without my permission. If you do so, you will have done something wrong and you will owe me compensation. All this because the apple is mine.

What are property rights? Where do they come from?

According to Retributive Ethics, moral rights are merely warrants for violence. All rights are Retributive rights: rights to harm other people. So when a Retributivist hears a right asserted he asks only who is claiming a moral permission to hurt whom, by how much and when.

In the case of property rights the question has clear answers: property rights at least include rights to defend your property: that is, to do harm to those who attempt to deprive you of its use and the right to forcibly interfere with others if they should attempt to use it without your permission. You may interfere with them by building fences or locking doors or by putting your body in their path. Should push come to shove, you may push and shove or, if society recognizes your property claim, you may call on the cops, who will do the pushing and shoving and, if need be, shooting on your behalf.

You are in short, entitled to enforce your property rights. "Force" being the operative word.

Now, academics are apt to grow faint at the first mention of violence so let me quickly offer some palliating remarks for tenured readers. Note first of all that acknowledging a right to defend property does not require you to think property rights warrant absolutely any degree of violence in the defense of absolutely any property. You may not think it permissible to shoot a burglar if you do not have much worth stealing or even if you do. You may yourself be so passive or pacifist that you would not lift a finger to protect your belongings. You may be so empathetic to the plight of those driven by circumstance to theft that you wouldn't even call the cops. Never mind. What matters is that you agree that having property makes it sometimes morally permissible (however personally repugnant) to forcibly interfere with others in some ways that would not be permissible if you had none. To deny this-- to say that it is always morally impermissible to lock a door, build a fence, or lift a finger (even to dial '911')… to defend one's property seems to me to simply deny that there is any moral right to property.

Note too that acknowledging the right to enforce your property claims does not presuppose that property rights, or any other rights, are in any sense "natural". Even if you think that the rules that govern property acquisition and ownership are as arbitrary a social artifact as the rules of NFL Football, you must nevertheless recognize that our adoption of those rules makes certain kinds of violence permissible. Neither the lineman who tackles the quarterback nor the cop who tackles the purse thief is doing something morally wrong. So even if you think "the possession of property under the law" is as inherently amoral a notion as "possession of the ball in football", you must have some account of how the violence of the lineman and the cop come to be morally permissible.

If we agree that property rights at least include some kinds of permissions to use force the next question is whether they include anything more.

Retributive Ethics in a Nutshell

Retributivist Ethics is rooted in five assumptions. 

The first is that something of the following form is true: 

     (1) x is Morally permissible = x harms no one or R₁x , or R₂x, …R_nx. 

Where x ranges over actions. 

The second assumption is that there are properties answering to R₁… R_n and actions which satisfy them.  That is, that there are some features of some actions which make them morally permissible even though those actions do cause harm to others.  

The third is that it is possible to describe what constitutes harming someone in non moral terms.

The fourth is that is also possible to describe those R-properties-- those circumstances which harming others is permissible -- in non-moral terms. 

The third and fourth assumption make Retributivism a reductive thesis.  Note that "=" in (1) expresses an identity on a par with:

    (2)        X is water = x is H2O . 

Retributivism is not a thesis about "the meanings" of moral terms-- whatever "the meanings" might be.  It is a thesis about what moral permissibility is.  It aims to say that to do something morally wrong just is to do one of those things that harms another and is not R₁… or R_n,  just as (2) says that to be water just is to be two parts hydrogen and one part Oxygen. 

Finally, Retributivism is the assumption that all of ethics, everything worth saying about moral right and wrong, will have been exhausted when we have spelt out (1) .  

Spelling out the R's -- saying when it is permissible to harm another--  is a matter of describing agents moral rights and claims.  

Thus, it is permissible to harm another if one acts in self-defense, so we may speak of the "right of self defense". 

To say that someone X has a moral  claim against someone Y that Y do something A (e.g. because Y has promised X that Y will do A) is to say that it would be permissible in certain circumstances for X to harm Y in certain ways (e.g. to force Y to keep his promise).  

To say that someone X has right to compensation from Y because of some harm Y has done X is to say that X has a right to force Y to perform some compensating act. 

Note the Retributivist may not say that the right of self defense makes it permissible to use force in a certain way.  Nor may he explain the permissibility by appealing to the right.  His thesis is that the right is the permission.  On the other hand the Retributivist need not argue for the existence of any right beyond the permissions it entrains.  Once it is conceded that the relevant harmings are permissible then the Retributive right has been wholly established. 

I distinguish between causing harm to others and allowing harm to come to others and assume that absent prior promises the latter are always permissible.  One might revise this assumption, including at least certain kinds of allowing to harm as impermissible and still call oneself a Retributivist if one accepted the other premises.

Means and Ends

Consider this  principle proposed by Judith Jarvis Thomson in The Realm of Rights.  

The Sole-Means Principle for Permissibility: If the only means X has of doing Beta is doing Alpha , then it would be permissible for X to do beta if and only if it would permissible for X to do alpha.  

If the Sole Means Principle (SMP)  is correct there are  far reaching consequences and Thomson does not hesitate to use it to draw large scale conclusions about rights and morality.

Here is one of her examples.   You are standing on your  property and observe that Smith is about to walk on your newly sown lawn.   Would it be permissible for you to tell  him to stop?  Indeed,  to yell loudly at him , "Stop!", if that's what it  would take to get him to stop?   You might think so.  It is your lawn after all.  You have property rights and isn't it always permissible to enforce your rights?   Shouldn't we agree that:  

(r )  If A has a claim that B not φ  then it is permissible for A to prevent B from φ -ing.  

"No", says Thomson.  Suppose that we change the story.  Suppose there is someone else, Jones, in the picture.   Jones is standing, not on your property, but nearby at the edge of a cliff.  As before,  Smith is about to trample your grass  and the only way you can prevent him from doing so is to yell, "Stop!".  The thing is, Jones is so skittish that if you yell,  Jones will jump.  And if Jones  jumps he will tumble down the cliff to his death.  And suppose (somehow) you know all this.   

In that case it is clearly impermissible for you to yell "Stop!".  You would be killing poor innocent Jones.  But given that yelling is the only means available to you to prevent Smith from walking on your lawn  it follows from SMP that it is, in this case, impermissible for you to enforce your claim.   Thus, Thomson concludes,  (r) is false.  

Now I think (r) is true.  It is a core claim of Retributive Ethics.   But I agree that in this case it would be impermissible for you to yell "Stop" because that would kill Jones.  So I agree that, in this situation, you have no  morally permissible means available to you for preventing Smith from walking on the grass.   But I  think, nevertheless that it is permissible for you to prevent Smith from walking on the grass.  You have a morally permissible end, but no permissible means to achieve it. I reject SMP.  

So let me give you seven (7)  arguments that SMP is wrong.  

Obligations and the Obligatory

What is the connection between our moral rights and duties and what we ought to do?  What principles bridge these different forms  of moral talk?  

In my last post on Retributive rights I mostly avoided the language of "ought" because I was there concerned to conjure retributivist rights out of the abstract logic of Hohfeldian rights.   But there is no reason to be coy here.  On the Retributivist view the hinge that connects talk of right and ought is just this.

(R)

A has a claim against B that B φ. B has a duty to A to φ .

=

It is morally permissible for A to force B to φ .

(R) is something new.  So far as I know, all prior attempts to connect moral rights with moral oughts have involved variations on.  

(M)

Someone has claim that A  not φ. A has a duty to someone not to φ .

iff

It is impermissible for A to φ.

The variations involve dropping one half  of the bi-conditional and/or adding qualifications of various sorts on either side.   

(R) and (M)  are logically independent and a Retributivist can, and I do, reject (M) without qualification. 

A notorious problem with (M)  is that it seems to lead directly to paradox.  I promise A that I will φ and I promise B that I will not φ .  The promise seems to give A and B claims against me.  A has a claim that I  φ, B, that I refrain from φ-ing.  But if (M) is correct it would follow that

(O)    it is impermissible for me to φ.

and

(O')    it is impermissible for me  not to φ.

How can that be so? If I really ought to do φ and I ought not to do φ then how do I decide, ... well,what I ought to do? 

Or is it that somehow one promise cancels the other out? And, if so, what mechanism determines which promise prevails?  

I think we should reject the idea that (O) and (O') can be simultaneously true.   These sentences are not formally  contradictory  but the point of a moral theory is to tell us what we ought to do and (O) and (O')  do offer contradictory, and hence worthless, advice.   I take the fact  (M) yields this result as proof that there is something wrong with it. The Retributivist diagnosis is that the paradox  arises from misunderstanding the relation between claims and oughts  in general and the claims created by promising in particular.  

The general point is that, for the Retributivist,  having a duty to to someone to do something does not entail that it is morally impermissible for you not to do it.   Rather it entails that it is morally permissible for that person to force  you to do it;  whether your doing it is permissible or not.  

The particular point about the claims of promising is this:   On the retributivist account,  when I  promise you to φ I  do two things:   

(i)  I give you permission to force me to φ if need be.

(ii)  I  invite you to believe-- at least in part because I have done (i)-- that I will do φ and thus acquire liabilities to compensate you if I don't φ and you suffer in consequence.  

Note again that  neither (i) or (ii) entail that I ought to φ.    

Now, If I promise A to φ and B not to φ, I have given A permission to force me to φ and B permission to forcibly prevent me from not φ-ing and, insofar as they are relying on my promise I am obliged to compensate whoever I disappoint for the costs they incurred .  It is an unenviable position.   I have a dilemma,  but it is not the paradox of (O) and (O').  There is nothing I both ought and ought not do.

Other things being equal, we have an obligation not to harm others. But sometimes things are not equal. Sometimes we will hurt someone no matter what we do.  When we make contrary promises we put ourselves in such a  situation and morality must guide us in deciding what we ought to do. What we have promised does not settle the matter.   

I think that one of the merits of the Retributivist account is that it will give us a plausible reconstruction of how we actually reason when we find ourselves in these dilemmas.    But I will postpone that discussion till a future post.   

Instead, let's round this off by asking if there is some way that (R) could be forced into the same kind of paradoxical corner that traps (M).    

How about this:  what if A promises B to φ and B promises C not to force A to φ.  According to (R), A's promise to B makes it the case that: 

It is morally permissible for B to force A to φ.  

And yet B's promise to C makes it the case that:  

B has a duty, to C, not to force A to φ.   

Isn't this a paradox?  No. Because B's promise does not make it morally impermissible for B to force A to φ.  Instead, according to (R), it makes it permissible for  C to forcibly prevent B from forcing A to φ.  No paradox here: nothing that is both impermissible and not.  

So am I saying that if A promises B to φ then it is always permissible for A to force B φ?  Yes!   

Am I saying that then we are permitted to anything we like to force someone to keep their promises?  No!  

To see how I can say both those things, stay tuned…

Darwin and his Defenders

Over the weekend I found myself defending Fodor and Piattelli-Palmarini's   "What Darwin Got Wrong" in the comments section of the Boston Review.  I thought I would reprint my arguments here in case anyone wants to carry on the discussion in more depth and to offer some summary thoughts.   For context you need only to understand that F&P's critics have all used variants on 1-10 below in defending Darwin.

So, here is my theory of US Presidents. Tomkow's Theory of Presidential Selection: The U.S. has the presidents it does because of the process of electoral selection. Electoral selection works by selecting the most popular candidates. Presidents are popular or unpopular because of their traits. The president elected at any given time will be the president with the most popular traits. Now I assume you agree that: 1) My theory, as far as it goes, is true. 2) There is a fact of the matter why any given president is elected. 3) Whether someone is elected president depends on some of their traits and not others. 4) The election of every president is explained by his possession of popular traits. 5) It is often obvious that certain traits at certain times make some candidates more popular than others. 6) There are plenty of clear historical examples of Tomkovian selection in action: e.g. President X was clearly selected because he had trait T and T was popular (substitute for whatever historical X and T you think clear). 7) It is perfectly clear, that, as a matter of fact, some traits that may be correlated with popularity are not really electorally significant. Thus, it happens that historically, the tallest candidate always wins a US election. But everyone can see, and Tomkow certainly would not deny, that tallness is not the trait that people are voting for.  8) There is a huge industry of serious and sensible people who do careful objective work in studying , explaining and predicting presidential elections using powerful statistical tools and careful historical analysis.  9) There may indeed be, and we may soon discover, real law-like regularities that connect the popularity of particular traits with specific environmental factors e.g. of the rate of taxation or GDP or …  10) There is no reason why the study of what traits lead to electoral success cannot be scientific in every sense of the word. Okay. Now given that you agree about points 1-10, don't you concede that Tomkow's theory represents a deep, indeed profound, insight into the workings of the political order?  No? What's that you say?  You say that even though 1-10 are true, Tomkow's theory, by itself, provides no clue at all about how to distinguish what traits are popular at any given time from other, irrelevant traits.  You say that Tomkow's theory itself really doesn't explain why any particular candidate was or will be elected.  You say that even though historians and political scientists have lots of substantive things to say, it's really no thanks to Tomkow. You say that, as it stands, Tomkow's theory cannot be used to predict who will be elected  and can only be used to explain any particular election result  post hoc. You say that, while some historical cases are clear, what makes for popularity in a candidate is so context dependent that you are skeptical that there will ever be a general scientific theory of "popular trait" per se . You say that Tomkow's theory of Presidential Selection really isn't a Scientific Theory at all!  You know, your complaints about my theory of Presidential Selection sound an awful lot like F&P's complaints against Darwin's theory of Natural Selection.