June 26, 2022

McCloskey’s Narrative and Jurisprudence

“Deirdre McCloskey rightly tells us that ideas matter, talk matters, culture matters, moral authorization matters, moral leadership matters. That is how the world works. The evidence of ngrams bolsters her theory.” ~ Daniel B. Klein

Deirdre McCloskey awakens us to the Great Enrichment commencing a decade or two after The Wealth of Nations in 1776. Her bourgeois trilogy and other books (1, 2) treat the causes. It is a story of growing openness during the 17th and 18th centuries to ‘having a go.’

Liberal sentiments and ideas were communicated by speech and print. Persuasion and edification came by intellectual and moral leadership. The paramount figure was and is Adam Smith. He morally authorized your having a go, and morally authorized allowing others to have a go—liberalization. Adam Smith called it “allowing every man to pursue his own interest his own way.” McCloskey’s story is the lead-up to that cresting of cultural leadership and the resultant enrichment.

McCloskey’s narrative is worth enhancing. I accentuate the role of jurisprudence, about which McCloskey says only a little. We can understand how crucial jurisprudence was historically only by understanding how crucial it is conceptually.

Ngrams bolster McCloskey’s narrative

Below is a diagram of five ngrams—four 2grams and one 3gram. One of the 2grams is “virtuous industry,” charted by the dark blue line. The vertical axis is the percentage of all gazillion 2grams in millions of books that are “virtuous industry.”

The striking thing about the figure is the flatline from 1675 to about 1740 for most of the ngrams shown. “Virtuous industry” was zilch—zilch!—from 1675 to 1736, and then some people started writing “virtuous industry.” Virtue + industry, what a notion!

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It’s similar for “honest trader,” “blessings of industry,” “honest merchant,” and “commercial virtues.” The last one I’ve multiplied by 5 to make it visible with the others. All of the lines were zilch and then come into being. McCloskey says that commerce and industry became honored. Formerly regarded as lacking in virtue, commerce and industry became respectable, even virtuous. The lines beautifully illustrate what she says.

Likewise, “fair profits” and “honest profits” prove that McCloskey is right: Around 1770 some people started to talk of “fair profits” and “honest profits.” Profits could be fair and honest—who knew?!

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After Adam Smith, Tocqueville’s America of the 1830s largely subscribed to the new gospel: “In the United States professions are more less onerous, more or less lucrative, but they are never high or low. Every honest profession is honorable” (p. 526).

Having a go — But at what?

Again, McCloskey’s story is about Smith and others morally authorizing your having a go, and morally deauthorizing your preventing others from having a go. But a go at what?

Back in the old traditional society, there was more of a status or station in carving stone for hire or baking bread for sale. Vocations more often involved a sanctification and social approval. Jobs were boxed in also by restrictions backed by government, and people had not yet learned how to think outside the box.

With growing towns, trade, and the teachings of jurisprudence, a more abstract notion arose, a notion of honest dealings. It is as though cultural leaders began to say: We’re learning that the world is too darned complicated to pretend to know, and we will pretend no longer to track the particulars of time and place. As long as you don’t mess with anyone’s stuff, have a go and we’ll recognize the pecuniary residuals as fair profits. Earnings. Honest income.

But are people to win a livelihood at prostitution and salacious arts? And what about blasphemy? Sedition, treason, and pernicious moral and political literature?

Many a menace to liberal civilization got rich through the honest dealings involved in writing and publishing books. Having a go may be conducted to honest profit, but such profiting may not be virtuous. A tension surrounds the problem of profiting that is honest but not virtuous. That is but one of the quandaries of liberalism.

Fortunately, the arc of liberalism grappled with the paradoxes and continued upward. A key was to clarify honest as distinct from virtuous. Justice had layers. In equal-equal relationships, honest was, in effect, advanced as a necessary but not sufficient condition for virtuous. A conceptualization of honest—or just, in a basic, mere sense, clarified by jural theorists—came forward. The conceptualization opened up new ways of seeing things, and sparked the imagination. People were allowed and even encouraged to think outside the box. The result was innovation, the electrical spark in the engine of enrichment.

Consider the rise of “earnings” and “income”:

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Both “earnings” and “income” pick up after 1740. Think about what “earnings” means. It means what you net from your honest commerce, whether you sell goods or services. Never mind what goods or services. It’s really quite abstract. Earnings are what you have from your honest dealings, whatever those dealings might be.

Jurisprudence, the printing press, the vernacular, literacy, and press dynamism

Scholars like Brian Tierney have explained that notions of permissive, open-ended individual rights start up significantly in the 12th century, and a steady stream flows into the Dutchman Hugo Grotius. Moreover, the Romans had developed jurisprudence. In a sketch of European history, Hume wrote:

[P]erhaps there was no event, which tended farther to the improvement of the age, than one, which has not been much remarked, the accidental finding of a copy of Justinian’s Pandects, about the year 1130, in the town of Amalfi in Italy. The ecclesiastics, who had leisure, and some inclination of study, immediately adopted with zeal this excellent system of jurisprudence, and spread the knowledge of it throughout every part of Europe.

However, prior to the printing press, such teachings of zealous ecclesiastics remained obscure, contested, disjointed, and confined to very few. With printing, some of the teachings—still in Latin, not vernacular—were imparted to some cultural leaders. Europe developed relative dynamism in printing, thanks in part to the continent’s porous patchwork of polities. Grotius and others give a whole new momentum to jurisprudence.

Although Grotius did not invent jurisprudence when he published the three-volume The Rights of War and Peace in 1625, it is a major development. In 1839 Henry Hallam wrote: “It is acknowledged by every one, that the publication of this treatise made an epoch in the philosophical, and almost, we might say, the political history of Europe.”

Spurred in part by the Protestant emphasis on a direct and personal connection with God and hence scripture, literacy was taking root. But it was slow to expand. Only in the vernacular and with rising print-culture could ideas be propounded to that emergent entity called “the people” or “the public.”

When it came to works in jurisprudence, a Briton’s ability to read English might not even be good enough, as in the earlier part of 18th century, some of the important works were still composed in Latin, including ones by the Glasgow professors Gershom Carmichael and Francis Hutcheson. In Britain, jurisprudence comes to be written and taught in the English language only in the 18th century. Thus, from 1675 to the 1740s, the English word jurisprudence was little used. Nonetheless, jurisprudential teachings were important for Latinate cultural leaders like Carmichael and Hutcheson.

But after 1740, with Latin waning, usage of the word jurisprudence rose steadily to about 1790, as the following figure shows.

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The chief jural idea that I wish to accentuate was a distinction between plain, honest dealings and other, fuzzier ethical duties. Plain, honest dealings were voluntary interactions, with no messing of other people’s stuff. If you made money from honest dealings, the result was earnings.

Jurisprudence schooled Europe in a social grammar

Nowadays, an unspecified dirty word is called an expletive, but originally “expletive” meant an unspecified word in a grammatical construction. That might be why Grotius called the grammar-like sense of justice expletive justice. It connoted grammar, in particular the relationship between parts of the sentence. Adam Smith and others called it commutative justice. That too connotes part-to-part, just as a commuter travels point-to-point. Part-to-part stands in contradistinction to whole-to-part or part-to-whole.

“The most sacred laws” of commutative justice, Smith said, guard your neighbor’s person, property, and promises-due. The rules of its precept are “precise and accurate,” or grammar-like. The precept of commutative justice provides a social grammar.

I say ‘precept’ to abstract away from what happens once the precept is violated; jurisprudence thusly distinguished between a law’s precept and its sanction. Once messing starts, things of course remain somewhat messy, no matter how thoroughly the law tries to specify sanctions by details of the case. It is the precept, not the sanctions, that Smith touts as “precise and accurate.”

The rules of the precept evolved with society, and evolved to be precise and accurate. They were not invented by jural theorists, just as grammar was not invented by grammarians. Sometimes rules remain tacit until theorists study them. Smith said that often the precept of a rule prescribes “no more than common sense dictates to any man tho’ he had never heard there was such a rule” (p. 73). The time-and-place rules of commutative justice are a prime example of natural convention.

But jural theory did have consequences. The analysis and articulation of customary rules of commutative justice by men like Grotius clarified what counts as honest dealings, for example by analyzing the nature of consent and contract in various circumstances. It considered the sources of ownership. During the Thirty Years War, objects came into people’s possession in odd ways: Were they legitimately owned by the current possessor? And what about reputation? Is it covered by commutative justice? Jural theory formulated and clarified what it meant to mess with your neighbor’s stuff. It thereby instructed one on what not to do.

For equal-equal jural relationships, the drift was, to use the analogy of rules for writing: Write whatever sentences your imagination conjures, but do not violate grammar. With commutative justice pinned down in a time and place, this message was often accompanied by tactful counsel for the jural superior, that is, the rulers or governors: Maybe you should try to abstain from actions which if they were done by an equal in equal-equal relationships would be regarded as criminal. Thus, jurisprudence gave wings to policy precepts that would, beginning in the 1770s, come to be called “liberal.”

Jurisprudence kindled focalism and innovism

Let us return to McCloskey’s narrative about economic activity. The clarification of commutative justice opened up the hyperspace of having a go—an honest go. Again, not all of it was ethical or virtuous—just as one may write a vicious yet grammatically correct sentence. But a certain presumption was given to honest income, while reservations and exceptions would be matters for the two looser conceptions of justice.

It broke ‘having a go’ wide open. It wasn’t just the traditional vocations of carving stone or baking bread. It was anything you could imagine. Thus, two things were happening simultaneous: (1) jural theorists were clarifying the category of honest income, and (2) moral leaders were authorizing the pursuit of honest income.

Honest income is but a part of the individual’s local interests. Being more concrete, local interests make for focal points in everyday life. They are matters we can advance effectively, because they are matters of which we have some knowledge and influence. The moral authorization given to focal interests is what Erik Matson calls focalism in an article in the Journal of the History of Economic Thought. Focalism is the moral endorsement of focusing on one’s local good, within moral constraints, beginning with those clarified by jural theory. Within such moral constraints, focalist efforts generally conduce to the good of the whole. Here we have the spontaneous order meaning of “invisible hand.”

The moral authorization of focalism and the conceptual openness of honest income invigorated enterprise like never before. Enterprise and honest innovation became God’s work. McCloskey calls the surge innovism: “the frenetic bettering of machines and procedures and institutions after 1800, supported by a startling change in the ethical evaluation of the betterings” (p. 93). Adam Smith quietly called for innovation and dynamism in calling for reform “where every man was perfectly free both to chuse what occupation he thought proper, and to change it as often as he thought proper” (WN, italics added, 116).

The children of jurisprudence are liberalism and liberal political economy

Smith’s younger associate Dugald Stewart wrote that systems of natural jurisprudence provided “the first rudiments…of liberal politics taught in modern times” (p. 26, cf 183). We needed jurisprudence to clarify the abstract category of honest dealings or earnings, which would then be morally authorized, and then be advanced in policy reform, all leading to innovism. We needed jurisprudence to clarify liberty—the government not messing with one’s stuff. J.G.A. Pocock says it succinctly: “the child of jurisprudence is liberalism” (p. 249).

Stewart wrote that it is also to jurisprudence that “we are chiefly indebted for the modern science of Political Economy” (p. 171). The very concepts of ‘the free market’ and ‘intervention’ are rooted in the formulations of commutative justice: not messing with other people’s stuff. Jurisprudence was critical to the development of economic thought. The figure below indicates a sharp rise in economic discourse in the 1740s and 1750s.

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Liberal heart and liberal spine

Deirdre McCloskey rightly tells us that ideas matter, talk matters, culture matters, moral authorization matters, moral leadership matters. That is how the world works. The evidence of ngrams bolsters her theory.

But what is the good? McCloskey’s answer is liberal civilization. A leader for our time, she tells us to cherish it and to identify with it.

The role of jural theory, both historically and conceptually, in the making of the Great Enrichment, though once better understood, fell into neglect. Perhaps it did so because it presents paradoxes and it embarrasses slogans, denials, and taboos. Whatever the reasons for its neglect, the jural theory of Grotius and others clarified and still clarifies the liberty that is at the center of what Smith called “the liberal plan.” Benjamin Constant would associate it with ‘modern liberty’ and Isaiah Berlin with ‘negative liberty’ (see here). The liberty maxim is the spine of liberal civilization, and we must grapple amicably with the difficulties if we are to maintain and strengthen that spine.

The spine depends on heart. Our future turns on love. The grave menace is the governmentalization of social affairs. We must stand up to ideas and activities which tend toward that evil. The health of the spine begins in the chest.

This article, McCloskey’s Narrative and Jurisprudence, was originally published by the American Institute for Economic Research and appears here with permission. Please support their efforts.