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A Just Measure

Like Marx, Posner can figure in this book only as an agent provocateur, only as a style of rationality and a style of explanation the limits of which I want to test. This chapter is, in many ways, an extended response to Posner. I take issue not only with the economic reasoning he exemplifies but also with the theory of justice he expounds. That theory, broadly speaking a theory about the quantifiability of justice (using cost-benefit analysis as the all-purpose yardstick), can claim a precursor as remote as Aristotle, but it is Law and Economics that has secured its current authority and vitality. As is characteristic of the method throughout this book, my response to Posner is threaded through a historical argument in which Posner himself will actually appear as a less than central figure, since the adequating rationality of which he is so forceful an exponent is also a phenomenon with a genealogy of its own, one whose ambitions and limits might be historically investigated. In the nineteenth century, for example, such a rationality would inspire not only a new penal philosophy, and not only a new tort law (the precursor of Law and Economics), but also, especially in the contexts of slavery and urban poverty, a new ambition to quantify sentience as the instrumental ground of humanitarian reform, an ambition to come up with something like a calculus of pain.

These (and other) rationalizing projects might be seen as so many contextual associates—and so many quarreling neighbors—for the realist novel, a genre driven, perhaps as much as any literature can be, by a longing for objective adequation, but also haunted, again as much as any literature can be, by the futility of such an ideal. In its very search for commensurability, in its very desire for a just measure of things, the realist novel is darkened, fleetingly but also quite routinely, by the specter of the incalculable, the noncorresponding, the unrationalizable. Given such specters, such misgivings of a self-inflected (not to say self-afflicted) character, I want to make a plea for a critical practice responsive to what we might call the cognitive residues of a text, responsive to what remains not exhausted, not encompassed by its supposed resolution.

The novels of William Dean Howells readily come to mind—one thinks of A Modern Instance (1882), The Minister's Charge (1886), A Hazard of New Fortunes (1890)—novels that, like so many other works


by Howells and so many other works in the realist genre, seem to owe their very existence to a certain adjudicatory crisis. This crisis they dwell upon, fret over, and preserve in memory—not in spite of but because of their endings, endings often so meagre in their proposed satisfaction as to seem a virtual parody of the term. Even The Rise of Silas Lapham (1885), a novel that, at first glance, might seem less anguished than the others, manages all the same to have an adjudicatory crisis of its own, which it tries (and fails) to handle as a Posner-like problem, a problem in the economics of justice.

On that fateful occasion, the Laphams, feeling confused and wretched, find themselves seated in front of the Reverend Sewell, desperate for advice. They have just been hit by a terrible disaster, a bizarre new development in their daughters' marital fortunes. The presumptive suitor of one daughter, they discover, is actually courting and indeed has proposed to the other one. What is one to do? Should one opt for an across-the-board suffering for all concerned, or should one settle for damage control? The Laphams have no idea. But the Reverend Sewell knows exactly what to think. The answer seems clear to him, as clear as an arithmetic equation, for what is at stake here is simply a question of numbers:

"One suffer instead of three, if none is to blame?" suggested Sewell.

"That's sense, and that's justice. It's the economy of pain which naturally suggests itself, and which would insist upon itself, if we were not all perverted by traditions which are the figment of the shallowest sentimentality."[5]

Like Richard Posner, the Reverend Sewell is impressed by the rationality of economics: by its ability to quantify and clarify, to provide a just measure of things. "Justice," then, for Sewell as for Posner, is a matter of efficiency, achieved in this case by the minimization of cost. "One suffer instead of three," Sewell says, as he urges upon the Laphams what he calls an "economy of pain." Behind this specific recommendation is a more general proposition, one that locates the cognitive ground of ethics in economics and locates it, furthermore, in something like a quantification of sentience, a calculus of pleasure and pain. Sewell's advice is eminently rational, but, we might add, not altogether new, for his "economy of pain" had a different name and a wider currency long before he proposed it, being immortalized by the phrase "the greatest happiness of the greatest number."


That phrase is, of course, most famously (or infamously) associated with Jeremy Bentham. In the preface to A Fragment on Government (1776), an anonymous attack on Blackstone, Bentham had offered up (and emphasized with italics) what he called a "fundamental axiom," namely, that "it is the greatest happiness of the greatest number that is the measure of right and wrong ."[6] This "Greatest Happiness Principle," as John Stuart Mill glosses it in Utilitarianism (1861), is one that "holds that actions are right in proportion as they tend to promote happiness, wrong as they tend to promote the reverse of happiness. By happiness is intended pleasure, and the absence of pain; by unhappiness, pain, and the privation of pleasure."[7] Pleasure and pain are not just physical sensations to the utilitarians. They are important, above all, because they are computable units, because they can be weighed, measured, aggregated, and translated into a commensurate ratio. As such, they make up the very numerical ground upon which ethics itself can become quantified, upon which every act of judgment can become an act of calculation. "Sum up all the values of all the pleasures on the one side, and those of all the pains on the other," Bentham urges, and "the balance" will yield the measure of right and wrong for any individual action. For communal actions, Bentham says,

take an account of the number of persons whose interests appear to be concerned; and repeat the above process with respect to each. . . . Sum up the numbers. . . . Take the balance; which, if on the side of pleasure, will give the general good tendency of the act, with respect to the total number or community of individuals concerned; if on the side of pain, the general evil tendency, with respect to the same community.[8]

This hedonistic calculus—this emphasis on the ethical primacy of pleasure and pain, and on their numerical computability—is usually taken to be the hallmark of utilitarianism. Other eighteenth-century thinkers, notably Locke, Hutcheson, and Hume, had also tried to develop an ethical system from a sensationalist epistemology, but it was Bentham who tried, most indefatigably, to ground that epistemology in arithmetic, claiming for it the quantifiability of a simple equation. Of course, Bentham is a man whose company the Reverend Sewell might not relish. Sewell's successor, Richard Posner, certainly does not relish it. Mindful that the critics of Law and Economics are most likely to "attack it as a version of utilitarianism,"[9] Posner sets out


to exorcise the "spongy, nonoperational" ghost of Bentham and to demonstrate, once and for all, how infinitely superior "wealth maximization" is to the "greatest happiness" principle. Even so, as he reluctantly admits, "Bentham plays a prominent, if somewhat sinister, role" in his book.[10]

Yet Posner might have set his mind entirely at ease on this score, for his intellectual genealogy is both longer and more honorable than his attacks on Bentham would suggest. It was Aristotle, after all, in the Nicomachean Ethics , who first tried out something like a mathematization of ethics, analyzing distributive justice as a geometrical progression and rectificatory justice as an arithmetical progression.[11] Closer to home, the search for a formalizable ethics—a uniform measure for all human affairs—could also claim its descent from Bacon and Newton, Condorcet and Leibniz, Hutcheson and Hume. In short, an idealized principle of commensurability had dominated Western thought long before Bentham gave it his distinctive expression. It is this principle that Adorno and Horkheimer would single out for critique in Dialectic of Enlightenment , their fierce attack on the rule of "equivalence" which they see as the origin as well as the burden of Western thought. Enlightenment rationality, they argue, is nothing less than a "principle of dissolvent rationality." It believes in "universal interchangeability," believes in the "calculability of the world," and so equates everything, "liquidates" everything, and subjects everything to the rule of the "fungible." And, as damning evidence, Adorno and Horkheimer cite a remark by Bacon: "Is not the rule, 'Si inaequalibus aequalia addas, omnia erunt inaequalia ,' an axiom of justice as well as of the mathematics? And is there not a true coincidence between commutative and distributive justice, and arithmetical and geometrical proportion?"[12]

Bacon was, of course, doing no more than echoing Aristotle and refurbishing an ancient dream of adequation, a dream of a rational order at once immanent and objective, at once numerically computable and humanly edifying. In its full flowering in the eighteenth century, this rationality would produce, among other things, William Petty's "political arithmetic," Condorcet's "mathematique sociale," and Chastellux's "indices du bonheur." To these ambitious efforts, we might also add the precedent of Descartes, with his esprit de geometrie ,[13] as well as that of Hobbes, who, writing at almost exactly the same time as Descartes—in 1642—had looked to "the Geometri-


cians" for moral guidance. ("If the moral philosophers had as happily discharged their duty," Hobbes said, "the nature of human actions [would have been] as distinctly known as the nature of quantity in geometrical figures.")[14] And we might add Spinoza as well, who, as if in response to the very challenge issued by Hobbes, would soon take it upon himself to apply Euclidean geometry to moral philosophy; his major work, Ethica more geometrico demonstrata ,[15] was published after his death in 1677. Leibniz, meanwhile, announced a project which would include not only geometry and mechanics but also a scheme for settling all political, legal, and moral disputes:

If controversies were to arise, there would be no more need of disputation between two philosophers than between two accountants. For it would suffice for them to take their pencils in their hands, to sit down to their slates, and to say to each other (with a friend to witness, if they liked), "Let us calculate."[16]

Such supreme faith in "calculations" suggests that at the onset of the Enlightenment, the reign of the numerical was already customary rather than revolutionary. Still, there was something unusual about the computing fervor of the eighteenth century: unusual not only in its many obsessions but also in its many innovations. Through the influence of Locke, for example, psychology was to emerge as a new discipline, indeed as the preeminent science of man, predicated in part on a speculative—but nonetheless enumerable—inventory of the mind. The idea of "Number," Locke wrote, "is the most intimate to our Thoughts, as well as it is, in its Agreement to all other things, the most universal Idea we have. For Number applies it self to Men, Angels, Actions, Thoughts, every thing that either doth exist, or can be imagined."[17]

The new philosophy of mind, taking its measure from this "most universal Idea," was therefore also to be a science of numbers. And "upon this ground," Locke said, "I am bold to think, that Morality is capable of Demonstration , as well as Mathematicks."[18] This was the ambition of Locke's Essay Concerning Human Understanding (1689), and it was the ambition as well of a long line of distinguished successors, from Hutcheson's Inquiry into the Original of our Ideas of Beauty and Virtue (1725) to Hume's Treatise of Human Nature (1740). In this context, it is not surprising that "happiness" should emerge as one of the key words of the Enlightenment, the pursuit of which would ani-


mate not just Jefferson's Declaration of Independence but numerous other declarations similarly inspired by dreams of a rational order. As Garry Wills points out, "happiness was not only a constant preoccupation of the eighteenth century; it was one inextricably linked with the effort to create a science of man based on numerical gauges for all his activity."[19] Happiness had a place in ethics precisely because it was quantifiable, because it could be itemized and distributed, on the one hand, and aggregated, on the other hand, in terms of its sum total both within one individual and within any group of individuals. It was in this quantifying spirit that Beccaria would write, in On Crimes and Punishments , of "la massima felicitàa divisa nel maggior numero," a phrase which would in turn inspire Bentham's English adaptation and from which he was to derive "the principle by which the precision and clearness and incontestableness of mathematical calculations are introduced for the first time into the field of morals."[20]

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