I just finished watching Django Unchained this weekend and I highly recommend it. One of the things that helped me enjoy it fully is the idea that anything a slave does to those who enslave him, even up to killing the enslavers and the enablers of the enslavers, is justified. That’s a view I’m quite comfortable with. If you’re not comfortable with it, you probably will not get the pleasure out of Django Unchained that I did.
Thinking about the movie got me thinking about former federal judge and law/econ scholar Richard Posner’s views on Herman Melville’s novel Billy Budd. If you don’t want spoilers, don’t read on. Here’s the short version of the novel. Billy Budd is impressed, that is, conscripted, into the British Navy. He is very popular with the crew but the ship’s master-of-arms, John Claggart, falsely accuses Billy Budd of conspiracy to mutiny. Captain Vere summons Claggart and Budd to his quarters. Claggart makes his case, but Budd has a big problem: a stutter that gets worse when he’s under pressure. Rather than defend himself verbally, Budd strikes Claggart, killing him instantly. Budd is court-martialed and found guilty of a capital crime. He is hanged shortly thereafter.
I’ve heard people discuss Billy Budd over the years and disagree about whether it was right to hang him. What I find missing in the discussion–and certainly it is missing in Richard Posner’s discussion in his book Law and Literature–is the importance of the fact that Budd was conscripted. Budd is held in that position by Captain Vere, by master-of-arms John Claggart, and by many others.
Interestingly, Posner recognizes the fact that Billy Budd was conscripted. He writes:
The eponymous hero of the novella is a young seaman impressed into a British man-of-war during the war between Britain and the French Directory (the interregnum between the Revolutionary regime and Napoleon.)
The fact of his being held against his will does not even enter into Posner’s evaluation. Posner writes:
[Richard H.] Weisberg [a law professor currently visiting at UCLA] makes light of the fact that Billy Budd struck a lethal blow to a superior officer in wartime.
Posner goes on to say:
Weisberg argues that in any event the death penalty is excessive for Billy Budd’s offense, but he misreads the historical record. Seaman John Gumming was tried in 1784 for striking the boatswain of his ship and found guilty and sentenced to be hanged, with no recommendation for mercy, even though there is no indication that the boatswain died.
Was Gumming conscripted? Posner doesn’t tell us. It seems very clear why he doesn’t tell us: to Posner, it doesn’t matter.
I think it does matter.
Just as I favor Django’s right to kill those who try to enslave him and keep his wife enslaved [I’m not commenting on the wisdom of doing so], so I favor Billy Budd’s right to kill John Claggart. Indeed, I think Billy had a right to kill Captain Vere and anyone else on the ship who tried to keep him on that ship against his will.
Postscript:
I think Posner would have trouble with my view at least in part because he doesn’t see conscription as a moral issue. The rest of this postscript, though, is about the fact that in the late 1970s, Posner got the economics wrong. My friend Tom Nagle, who was an untenured assistant professor at the University of Chicago Business School in the late 1970s and early 1980s, occasionally had lunch with the econ faculty at Chicago. In 1979, there was a serious attempt by Senator Sam Nunn to reinstate the draft. I had been writing about that issue and had testified against it before Senator Nunn’s subcommittee of the Senate Armed Services Committee, and Tom and I had been discussing it. At lunch one day, the issue came up and Posner said, “I think conscription is an efficient tax.” Tom responded, “You’ve got to be kidding. How could it be efficient to conscript someone who’s say, getting an economics Ph.D. at a leading graduate school, and give him a gun in the Army for two years?” [Of course, Tom’s memory of both Posner’s and Tom’s exact wording is almost certainly off, but that was the gist.]
READER COMMENTS
Benjamin Cole
Mar 25 2019 at 7:29pm
What is the difference between a mercenary soldier in service of the leviathan, and a mob hitman?
Matthias Görgens
Mar 25 2019 at 11:25pm
The crucial difference between an army and the mob is not how they get payed or forced to serve.
Benjamin Cole
Mar 26 2019 at 6:27am
MG–
In libertarian circles, I guess the mob hit-man is a rung or two above the mercenary soldier of the Leviathan. A mob hit-man works for private enterprise, perhaps even enforces rules devised in the private sector.
A mercenary soldier of the Leviathan enforces rules of the state, with its entire apparatus and ability incarcerate, or to project power globally on behalf of the state, against other civilians.
We could ask Pierre L. He appears to be in a permanent state of angst regarding “The Leviathan” and has suggested stateless societies might be better.
Aleksander
Mar 25 2019 at 7:40pm
While I haven’t read the book, this view seems a little extreme.
I was conscripted into my country’s army a decade ago, against my will; if I had resisted, I would have been put in prison. But I was treated well, and suffered no permanent harm. Did I have the “right” to murder i.e. my sergeant, who was there out of his own free will? Or the MPs who would have taken me to prison? Perhaps, but then perhaps I also have the “right” to murder my tax collector. It just seems a little counter-productive to think that way. Let’s focus on getting rid of conscription and excess taxes, instead of defending unnecessary violence.
James Hanley
Mar 25 2019 at 8:17pm
Tom Nagle’s response, as reported here, would leave open the response that educational exemptions would resolve the problem.
I’m not saying it actually would, just that that rebuttal is the next step on the Posnerian side of the argument.
Matthias Görgens
Mar 25 2019 at 11:24pm
From the point of economic efficiency, it’s being able to pay a fee to get out that would solve that problem. Education is just a proxy. (And with efficient capital markets, future potential income is as good as current wealth to pay the fee.)
But that fee arrangement is pretty much equivalent to normal people paying taxes and the armed forces paying soldiers enough to attract volunteers.
David Henderson
Mar 26 2019 at 8:59am
You wrote:
But that fee arrangement is pretty much equivalent to normal people paying taxes and the armed forces paying soldiers enough to attract volunteers.
If everyone paid the fee, then yes. But if only young men pay the fee, then no. In the latter case, it’s efficient, but it’s not close to equivalent. And even if everyone pays the fee, it’s not much like normal people paying the kind of taxes we have. The fee would presumably be the same for everyone; income taxes, by contrast, take a much higher amount from higher-income people.
Mark Z
Mar 26 2019 at 4:49am
I think whether the homicide is justified probably depends on whether it was gratuitous. If Budd were trying to escape and the captain was standing in his way, then I’d be sympathetic to it being justifiable homicide. In this case, of course, the fact that he’s facing false mutiny charges may also make it justified.
I would say that, even if one thinks killing the captain isn’t justified, the false charge of a serious (potentially capital?) crime and being enslaved should take the death penalty off the table. Referring to Aleksander’s post above: if a draftee tries to escape the war, and an officer tries to prevent him by force (presumably adding the additional charge of desertion to his fate) and the former kills the latter to escape, I don’t think the draftee should be punished as though it were a ‘standard’ murder. Likewise, if someone falsely imprisoned for life for a crime they didn’t commit kills a guard who tries to stop him in the process of escape, I don’t think that should be a capital crime, and shouldn’t be treated as a ‘standard’ case of manslaughter.
Now, that’s not to say that the killing of the prison guard or the officer is ‘justified’; it certainly isn’t if it’s gratuitous, and may not be even if it isn’t. But I would consider such situations almost analogous someone someone who accidentally broke into your home because they thought it was theirs (let’s say they’re senile). The person is innocent, they didn’t deserve to be killed, but that doesn’t necessarily mean the person doing the killing deserves to be punished. Circumstances (or the state) can put a person in a situation where the just assertion of one’s rights may lead one to do harm to someone who is innocent.
Or consider the extreme case of someone falsely accused of a violent crime and is being hunted by police who believe he is extremely dangerous, and the person kills a police officer in self defense during the conflict. The police officer was only threatening this innocent person because he sincerely believed the person was a dangerous threat to others. But the person who kills him still has a right to self defense, even if the police officer threatening his life is himself innocent of wrongdoing and is merely mistaken in his pursuit.
Bill
Mar 26 2019 at 9:36am
I’m not sure about this, but it seems like conscription might be a form of lump sum tax that does not distort incentives. If conscription is a lump sum tax that can’t be avoided ( no getting out of the draft if you are the son of a senator) then it would be an efficient way of redistributing income.
David Henderson
Mar 26 2019 at 10:06am
Bill,
You write:
I hadn’t thought of it that way. If it really were impossible to avoid, then you would be on to something. But there are 4 ways to avoid your highly hypothetical conscription tax: (1) maim yourself, (2) kill yourself, (3) emigrate, and (4) hide.
However, in raising your second point, you have caused me to reconsider a claim economists often make that I now realize is incorrect. We almost always say that a lump-sum tax is efficient. But even if conscription were a lump-sum tax, that is, even if none of those 4 avoidance options above were available, it would be a highly inefficient lump-sum tax. I can explain here or I can leave it as an exercise for the reader. I’ll do the latter, but I’ll give two hints: (1) Elvis Presley and (2) Bill Gates.
Daniel Hill
Mar 26 2019 at 10:23am
David, you write:
What about #5 – be born female?
Miguel Madeira
Mar 26 2019 at 1:17pm
However, in raising your second point, you have caused me to reconsider a claim economists often make that I now realize is incorrect. We almost always say that a lump-sum tax is efficient.
I think the problem is that a draft is not really a lump tax – the whole concept of “non-distortionary lump taxes” only make sense for lump taxes paid with money, not with labour (the logic is “because you will pay the tax in any circumstance, this will not change your behaviour, then the tax is non-distortionary”; but a tax that is paid in labour of course will change your behaviour, in the sense that you will be working in the army/Siberia/civil service instead of in another thing; btw, this is a reason because I think that Nozick’s aforism “taxes are forced labour” is silly).
Draft could perhaps be considered an efficient lump tax with a small change – instead of “every male between 18 and 21 have to serve in the army”, something like “every male between 18 and 21 will have to found someone valid to serve in the army (in last resort, himself)”
David Henderson
Mar 26 2019 at 7:05pm
Miguel,
You write:
Absolutely. But notice that you’re not talking about non-distortionary lump-sum taxes. You made your point true by begging the question. The new question that the original commenter led me to is: Can there be lump-sum taxes that are distortionary. The surprising answer is yes.
You write:
That’s true, but that’s not normally what’s meant by distortionary. A lump sum tax taken in money will also change your behavior: you’ll have less money to spend. The conscription tax is inefficient because it takes your labor. But it still could be lump sum.
Jeff
Mar 26 2019 at 2:25pm
In a civilized society, we don’t have the moral right to take justice into our own hands, but that only applies if there is a legal system in place that we can expect to make just decisions. If Billy didn’t think he was going to be able to defend himself in a fair system and Claggert didn’t either, then Claggert deserved what happened to him and Billy was right to kill him. Whether Billy was conscripted or not makes no difference. It might if Billy killed Claggert in an attempt to escape conscription, but from your description of it, that’s not what happened. (I haven’t read the book.)
I did read Les Miserables when I was fourteen and wondered why John Valjean didn’t just kill Inspector Javert and get on with his life. He had opportunities to do so and get away with it. If anyone deserved killing, it was Javert, and letting him live to continue his persecution of Valjean was itself a grave injustice.
Bob Murphy
Apr 1 2019 at 7:00pm
Jeff wrote:
“I did read Les Miserables when I was fourteen and wondered why John Valjean didn’t just kill Inspector Javert and get on with his life. He had opportunities to do so and get away with it. If anyone deserved killing, it was Javert, and letting him live to continue his persecution of Valjean was itself a grave injustice.”
Jeff, I confess I haven’t read the book, but I’ve seen the play and all the movie adaptations. At least in those media, arguably the single most important theme of Les Mis is that justice alone–in the absence of mercy–is itself unjust.
The Bishop shows mercy and grace to Valjean, who has robbed him. This breaks Valjean’s heart and reforms him much more than Javert’s harsh punishments ever could.
Then, having truly learned the lesson, Valjean in turn exercises that same mercy and grace towards Javert, when he is in Valjean’s power.
David Henderson
Apr 11 2019 at 11:48am
Bob,
That’s what I got out of the play also.
Nathan Smith
Mar 26 2019 at 3:46pm
I might be misremembering but, in the movie, Django doesn’t kill “the enslavers and the enablers of the enslavers” that enslaved HIM. He is absorbed into the enslaver’s system and awarded a specific kind of freedom to kill white people who have broken the law. but the movie becomes about a hitman who goes beyond his employment to kill people he has no cause to. It is a movie that asks a very important question: what does it mean to be free?
David Henderson
Mar 26 2019 at 4:07pm
You don’t remember correctly. He kills people who reenslave him and keep his wife in slavery.
Hugh E. Brennan
Mar 26 2019 at 6:21pm
David,
My but you are bloody minded. In common with Tarantino but not Melville I doubt you have personal experience of deadly violence among hard men.
I’t noteworthy that our films reflect an interesting obverse and proportional relationship between the actual experience of violence and its depiction on the screen.
I think this reflects a deep undercurrent of insecurity among modern men who in ever increasing proportion have no personal experience of death dealing. The men who built the Hollywood of the golden era were as often as not sons of the trenches. Having lived with death up to their eyeballs, death came in their dramas sparsely, economically, but never lightly or comically.
I remember a moment at some sort of TV film awards ( must be 20 years ago) when they had come to “The Funniest Moment” prize. They gave it to the scene in Pulp Fiction where the gunmens’ back seat hostage has his brains exploded over the rear window when they hit a bump.Ha, ha, ha- gee what artistry. If I recall, it was Martin Balsam sitting there with an utterly and sadly dumbfounded expression.
The men who made our post-war cinema had, often as not, been to The Pacific, or Burma, or Africa, or Italy, or France and Germany. Their films were darker, more violent, more explicit, yes, but hardly the splatterfests that fill the best film lists today.
I read your advocacy for murder, homicide, killing- the face to face, man to man, violent ending of a life with gun, knife, axe, fist, boot- as facile, unconsidered, and reflective of a certain cheaply bought masculinity. What’s your favorite? Reading Simon Sebag Montefiore’s “Stalin” it seems one bullet in the back of the neck, right at the base of the skull is wonderfully economical and can account for thousands in a day.
I wonder if you understand that your advocacy of the slave’s right to murder his master is the fundamental spark that ignited the Civil War? The Secret Six and John Brown? The discovery by Southerners that there was a proportion of the people of the north who were willing to countenance their murder and the murder of their families made the argument for secession as an act of self-preservation and self-defense more than plausible to many who otherwise supported the continued federal union.
Indeed, three quarters of a million dead boys would answer for the violent pretensions at revolutionary justice among the soft handed men of letters and ardent Christians of New England. To the final reckoning we must add the miserable deaths of up to 150000 Freedmen who died miserable deaths from exposure, hunger, disease, and neglect in the two years after Lincoln’s murder. ( Let us note that an actor whose schedule found no time for war in four years fired the fatal bullet, in the back of the President’s head.
It’s all over the internet. Bien pensant thinking cheers on the Indians at Little Big Horn and celebrates the Palestinians in their relentless resistance. No one dare suggest the Boers 400 year investment gives them roots in African soil, and the Revanchista is but justice. “I’ll hold your coat” is the order of the day.
How else can it be safe to knock Johnny Reb off his 100 year old plinth than that there’s no danger in it? Are there any among the SJW’s who could have stood before the tattered Rebel boys in their companies, regiments, and brigades- or even singly? Not if what we read in Billy Yanks’ diaries are true. They bled for four years to beat the South, and when they quit, they were content to shake hands and go home.
We have elaborated theories of white supremacy to denigrate that peace, but we weren’t at Chickamauga. One, one man was tried and executed at the end of the war. Wirtz of Andersonville paid for 14000 prisoner graves and no one else. Three million men under arms melted away and the old twenty thousand garrison and frontier force returned. The Boy General who led ten thousand troopers in The Valley died a balding Lt. Colonel at the head of 275 men.
I fear you miss the point of Billy Budd. Melville gave us the question of good and evil before the law. Budd wasn’t just innocent, he was good, unalterably, purely, unreflectively good. Robert Ryan’s performance in the classic film draws Claggett peering from the pit with malevolence and envy. That’s what engages us. We, with the crew, with the captain long for that goodness. It is our hope, the light in our world. How can we, with deliberation extinguish it?
And there we have it. The Law. We are free men. Our laws bind us, or we cease to be free, and soon thereafter cease to be men. The Captain is sworn to the law, the ship is under the law. England is the ship and England is at war for her life, for her liberty.
It is possible for educated men to be barbarians. The Twentieth Century should have established this without question. I fear, as I read you essay and some of the responses that we have forgotten this lesson. I fear that we have not even assimilated the lessons of our own sciences which support Hobbes and Burke in their cold-eyed view of our nature. We, as men, have violence born in us. That vast structure of customary and positive law weighs on that nature, enmeshes it in strictures, and places it before the bench. Call not lightly, nor celebrate thoughtlessly imaginary slaughters or prospective murders.
The French are in sight. Stand to your guns. Ease your qualms. You stand by the law and the law by you, and poor Billy swings in service still.
David Henderson
Mar 26 2019 at 7:19pm
To answer everything you say would take a lot of space, so I’ll pick the few that I think matter most.
Pulp Fiction is a movie I’ve always refused to see and you get at the reason with your story about the award. There’s a huge difference between killing people trying to enslave you and murdering innocent people.
You do make one incredibly absurd statement when you write:
My advocacy is in 2019. The Civil War happened much earlier. I bear no responsibility for it.
But I’m guessing that you just got carried away and meant to say simply that other people’s advocacy at the time of the slave’s right to murder his master was the spark that ignited the Civil War. I have no idea whether that’s true and I’m guessing that you don’t either.
And for the record, I would have been against the Civil War. I would have wanted the northern abolitionists to prevail early in the 19th century by seceding from the Union. Indeed, their motto was “No union with slaveholders.”
You write:
I don’t think so. I know that my point is not Melville’s. It’s my point, not his. I get what he was doing and I think you said it well. I’m saying something different.
You write:
I think you missed my point. My point is that Billy Budd was not a free man.
So now I have a question for you and I won’t presume to answer for you, Hugh. Here’s my question: You are in the South in 1858 and you see a slave escape by murdering his master. Do you report him? If not, why not?
Jon Murphy
Mar 26 2019 at 9:41pm
This is incorrect. The spark was not over the right to murder a master. The issues involving the Civil War were multifaceted and slavery was just one of them, but none of them was about murder.
There are many books out there that have letters from soldiers and Americans on both sides of the war. One of the best is in the two-volume biography of Franklin Pierce by Peter Wallner. In the second volume, Wallner details the ongoing friendship and correspondences between Pierce and Jefferson Davis (the president of the Confederacy) during the war. The deep regret both had for the war is palpable and obvious. And there are lots of talks about the causes of the war, none of which involved “the right to murder a master.”
Robert E Lee’s writings are enlightening on the matter as well. Lee, you may recall, was originally given command of the Union army before the war. But he refused it. He refused it not because of some idea of self-defense because the North was advocating murdering slaveowners, but because he couldn’t fathom leading an occupying army into his hometown. And frankly, I don’t blame him. I grew up near Boston. After the Marathon bombings, my brother in the National Guard was part of the military-led manhunt for the bombers. He was an occupying force in his own home town. He said it was an incredibly creepy feeling. And he was there as a law enforcement agent! Imagine being there as an occupying force!
I will say you write beautifully, but I fear you’ve romanticized the Civil War some.
David Seltzer
Mar 26 2019 at 6:26pm
If we assume voluntary enlistments leave more high-income earners in the civilian sector does this lead to a larger tax base? When income taxes are set optimally, voluntary enlistments lead to less distortionary taxation than a draft. To conscript, enslaves, doesn’t compensate the conscript for risk and incurs opportunity costs. In the end, conscription is a an enormous negative externality as it forbids negotiation. (See Harold Demsetz’s comment on the draft).
Mercenaries are paid for their assumption of risk. Conscripts aren’t. As to the last statement, I served in Southeast Asia during the Vietnam Era. I witnessed, first hand, fragging by draftees, some from inner cities. Not unlike Django.
David Henderson
Mar 26 2019 at 7:27pm
Thanks, David.
You write:
Absolutely. In my talks on the draft, the extreme example I give is Elvis Presley, who was drafted in 1958. At the time, the top marginal tax rate was 91%. At least some of his income was likely in that bracket and much of his infra marginal income was in brackets ranging from 56 to 89%. So the loss from drafting him, just the narrow loss to the Treasury, was huge.
David Henderson
Mar 26 2019 at 7:29pm
P.S. Interesting point about fragging. It was like Django.
Mark Friedman
Mar 26 2019 at 7:56pm
Does a wrongly convicted inmate thereby acquire the right to kill any prison guard he encounters? What if the inmate doesn’t kill him because the guard is part of the system, but because he falsely accuses him of having contraband? This seems to be the appropriate analogy to BB, and I believe the answer is “no.”
David Henderson
Mar 26 2019 at 8:08pm
Good question and I’ll have to think about.
But I think there’s a fundamental difference between being wrongly convicted and being enslaved.
Mark Friedman
Mar 26 2019 at 10:03pm
David Henderson
Mar 26 2019 at 10:53pm
There’s where we disagree. Conscription IS slavery, even if short-term. Slaves in the American south were often paid too, so that doesn’t distinguish it from being conscripted into the British Navy. It’s certainly true that the sailors couldn’t be legally raped or tortured for the officers’ amusement; I would bet that it sometimes happened, though.
Mark Friedman
Mar 26 2019 at 11:05pm
Don’t see how the conditions experienced by a person wrongly convicted for murder, and sentenced to life, are materially better than serving a 5 year stint (or whatever it was exactly) in the Royal Navy–and that’s the analogy I offered. So, I think the question remains: can such a person morally kill any prison guard, or kill one over a false contraband allegation?
Simon Lvov
Apr 6 2019 at 11:57pm
Why only “wrongly convicted”? Wrongly or rightly convicted is no different from wrongly or rightly “impressed”. Following logic of an original post, any prisoner has a right to kill his/her jailers.
Mark Friedman
Mar 26 2019 at 10:09pm
Also, pretty sure they got shore leave, which might be where the phrase “spent their money like a drunken sailor” originated.
Thomas Sewell
Mar 28 2019 at 8:55pm
Posner may (i don’t know for sure) be falling into that common mindset where all of everyone’s labor belongs to the government by right (or power or highest-best-use or whatever) and the time or labor we have remaining is their gift to us.
So just like those of this mindset don’t see anything particularly wrong with high tax rates, they morally see conscription (temporary or permanent) or whatever as just fine morally. Maybe not if you asked them directly, but at least as a subconscious assumption.
Of course my own views are far more extreme, which is that individuals by right own all of their labor and by default can not morally be coerced to give it to another, but instead only voluntarily.
Comments are closed.