Capitalism

M. Hodgson, Conceptualizing Capitalism: Institutions, Evolution, Future, the University of Chicago Press. Kindle edition, 2015

What capitalism is everyone knows, or thinks that he/she/they know(s). It is an economic and social system under which ownership of the means of production on one hand and labor on the other are largely separate (commenting on this, Marx once said that the reason why bourgeois dislike prostitutes is because the latter cannot be separated from the tools of their trade). One under which the main means of production such as factories, machines, roads, communications etc. are in large part privately owned and may, operating through a somewhat chaotic system known as “markets,” be more or less freely transferred from one owner to another. One under which the factor that ties those resources together, enabling them to function, is money rather than, say, barter or faith or charisma. One in which economic initiative is given free rein and consequently takes the form of competition among owners, actual or would-be, that in time is almost certain to lead to gross inequalities between rich and poor.

One that operates, and to a large extent can only operate, within a framework of rights and duties, freedoms and prohibitions, known as law, the task of creating and administrating which is the province of an overarching organization known as the state. One whose origins have deep roots in history—especially ancient Rome where private ownership, in the form of so-called cattle slavery, reached heights (or lows) to which subsequent generations had little to add. One that, originating in the Netherlands and England between about 1600 and 1800 and having resoundingly defeated communism as its most important opponent, has spread all over the world. To the point where, at present, it faces only limited competition even in countries, such as China, whose official ideology points in a different direction.

As the common saying has it, whatever goes up must go down. Rome, which as I just said in some way represented the acme of capitalism, ended by biting the dust. As it did so, it was replaced first by the various Germanic tribes and then by feudalism; based on entirely different principles, between them they lasted for almost a millennium. Panta rhei: to anyone with the least historical consciousness, the collapse at some future time of capitalism appears inevitable. Some may even see it as desirable. Do we really want to perpetuate a system that allows a handful of temperamental tycoons to control much of a country’s wealth, as it does both in the US and (more surprisingly) in Switzerland? But what will its successor look like? Science fiction apart, to-date the only really serious attempt to answer this question was provided by Lenin, Stalin and Mao. From them it passed to their successors or imitators. But that attempt, too, has hit the dust. If not in theory—a small number of die-hard Marxists still persists—then at any rate in practice. So the question is, what comes next; and it was the hope of obtaining at least some answers to that question that first made me turn to Hodgson’s book.

As I read along, I found that the relevant material is distributed between two separate chapters. They are number 14, “The Future of Global Capitalism;” and 16 “After Capitalism.” Chapter 14 is an attempt to guess what forms capitalism may yet take in various countries and the relative success of those forms: e.g Taiwan (supposing it does not fall to China, a possibility Hodgson does not even mention) and South Korea versus India; the United States versus China; the European Union versus Russia; and so on. All this while taking into account, or trying to take into account, a vast number of relevant factors such as birthrates, labor force participation, per capita GDPs, social and cultural attitudes, government interference (including R&D and subsidies on one hand and taxes and corruption on the other) and so on. Briefly, the kind of socio-economic analysis that, coming complete with countless tables and figures, may be found in a thousand other works.

Taking up the lead, chapter 16 deals with three questions. They are, 1.”Will the Great Global Diffusion Lead to a New Economic Hegemonism?” 2. “The Role of Law and Economic Development.” And 3. “The Persistence of Varieties of Capitalism.” Needless to say, the answers to each of these issues will play an important role in shaping the future. As with chapter 14, the author’s discussion of each of these issues is backed up by reams of facts and figures. One can imagine the author chewing his way through them, leaving no bone untouched. His main interest, though, comes through in the second issue; from beginning to end, he is determined to show that law and good government, far from merely forming a Marx-type “superstructure” that covers the economic “base” and justifies it, forms an essential part of capitalism’s nature or, at the very least, a prerequisite without which it could not exist. Presenting his case in some detail, he is probably more often right than wrong; what I found almost totally missing, though, was a more global –meaning, not country by country—oriented discussion of any fundamental changes capitalism may undergo.

To my mind, some of the most important early twenty-first century questions concerning capitalism are as follows. Given how powerful, how omnipresent ad by now, how persistent capitalism is at the present historical moment, what factors could push it off course and make humanity move into a different direction?  Suppose an alternative to capitalism is found, what will it look like?  Will inequality among rich and poor, individuals or countries, decrease or increase? Will the future resemble Aldous Huxley’s Brave New World? Or George Orwell’s Nineteen Eighty-Four? Or Anthony Burgess’ 1985? Or some combination of the three? Who loses? Who gains? Unfortunately Hodgson does not provide even the beginning of answers to any of these and similar questions.

Leaving his work, however well researched and rich and nuanced it may be, hanging in the air.

Dialogue No. XIV. Concluding Thoughts

Based on twenty years of thought, research and writing, this book provides answers to questions such as:

– In what ways are women privileged?

– What are the main similarities between men and women? What are the main differences?

– Who and what was Mary Wollstonecraft?

– Who understands women better—women or men?

– Why do so many men, including married men, visit prostitutes?

– What is the Kama Sutra all about?

– When will equality between men and women become real?
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– Is the future female?

– Is feminism destroying Western civilization?

– What is love?

– What will a possible reaction to feminism look like?

Based on twenty years’ study of these and similar questions, this book provides answers to them. Such as are succinct, always well thought-out, often provocative, and, from time to time, funny as well.

“Martin van Creveld has developed a bit of an international cult following with his stringent attack on what he calls ‘The Privileged Sex’. The ‘privileged sex’, he says, is female.”

Kenny, Belfast Telegraph.

Hooked? Get it today!

Guest Article: Negligent Rape

by

Jonathan Lewy

www.jonathanlewy.com

Criminal law rests on the basis of three pillars:

  • Nulla poena sine lege—no penalty without a law—is the short hand version of an aphorism ascribed to Anselm von Feuerbach, the author of the early 19th century Bavarian Penal Code. His aphorism remains the mainstay of criminal law to this very day. Retroactive punishment is an anathema. It is almost inconceivable to imagine a person indicted and sentenced for a crime that was not written in a law book somewhere, sometime before the crime was committed. Common law crimes are but extinct. Even in England, it is well accepted that the law must be known; it must be written; and it must set standards for proper behavior before the act, rather than ex post facto.
  • Conviction of a crime requires proof of a criminal act and a guilty mind, or mens rea as it is known in Latin. The standard of conviction in a criminal court are supposedly strict: the guilty mind must reveal intent, recklessness or apathy. Save for the most serious actions, such as killing another person, lack of thought or negligence are insufficient for a conviction.
  • A person’s guilt must be proven beyond a reasonable doubt. Punishment is serious business, so much so that Jurists often claim that “it is better that ten guilty persons escape than that one innocent suffer.” To ensure this ideal, a person is presumed innocent until proven guilty and the burden of proof rests on the shoulders of the prosecution.

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All three pillars crumble when it comes to rape, particularly date rapes. The law normally defines rape as “sexual relations with a person against that person’s will.” Some laws are more detailed, others less so. Some mention penises, vaginas and anuses, and others do not. In some jurisdictions, only women can be raped, in others men can be victims as well. Be that as it may, the fulcrum of all rape laws is consent, or the lack thereof.

In a court of law, the question how consent is proven must be answered. If the rape is violent, forensic evidence and common sense usually prevail. Resistance, bruises, and other marks can be used as proof for lack of consent. This simple picture is blurred when it comes to date rapes, when no physical evidence is available and all that remains are the testimonies of the defendant and his accuser. Perhaps supporting evidence and witnesses who were not privy to the act are also available, but rarely are they sufficient to prove lack of consent.

Suppose a man has sex with a woman without using force. She changes her mind after the fact. She might claim that the reasons leading to intercourse were not true expressions of her free will: the man was her boss, teacher or therapist and she felt compelled to do the deed; the man claimed he was a successful businessman when in fact he is a penniless pauper; she felt threatened even though no threat was expressed; or her mind was simply blank (normally due to being drunk). In other words, circumstances led to her loss of willing consent and the court must disregard it. She is asking the court to treat her as a child with limited responsibility, whose consent is meaningless. In point of fact, she is asking for retroactive justice: an assessment of her consent after the fact. If judges remained true to the law and its spirit, they would deny the request.

What is willing consent? Very few human actions are truly free. Circumstances always set limits to freedom; yet, when it comes to rape, courts set a high standard. A woman’s consent is not taken seriously if it falls under ‘understandable’ circumstances. These circumstances are not only objective conditions such as physical duress, treachery or extortion, but also include subjective feelings such as trauma and other mental states, or even her own actions. Experts flood the courts claiming that victims are often unaware that they had been raped. They claim that the trauma is so severe to the point that women are unsure about what had transpired, but the trauma itself could be used as evidence that rape had taken place. Once again, these experts violate the first pillar of criminal law, since what should matter in court is what happened at the scene of the crime, not the understanding of the events after the fact.

psa14n-1-webVictims are privileged. They are not held accountable for being drunk. On the contrary: the courts decided that the fact she drank alcohol means she could not give her consent, even though she had entered this state of mind willingly. Experts and activists tell us that it is never the victim’s fault. Yet, if the case were different, and a drunken person killed another, the prosecution would successfully claim that the killer entered the state of mind willingly, and that he should have taken into account that while under the influence his actions could be disastrous. Proving criminal intent would be immaterial in such a case. Defendants, therefore, are disadvantaged. They are held accountable in circumstances that victims are not. This fact is ignored because the victim should not be held to the same standard as the defendant. This is certainly true in most cases. However, in the current legal standard for rape, the actions of the accuser determine the mental state of the accused. By willingly detaching herself from her surroundings, she determines the mental state of the accused. How could he know that she is too drunk to consent? It stands to reason therefore that she should be held to the same standards as the accused.

Suppose another scenario: a man has sex with a woman, and she remains silent. She may or may not want it, but she had not given any indication either way. For all intents and purposes, the man has no guilty mind. He had no intention to rape the woman; he simply wanted to have sex and assumed the desire was mutual. He is neither reckless nor is he apathetic. Yet, courts have decided in the past that he should have actively sought her consent. In other words, the man had an ‘objective duty of care’ to ask before penetration. The fact that he did not explore the possibility she may not want sex makes him accountable. Jurists dub this low standard of mental state, or rather the lack of guilty mind, as negligence.

As noted above, save for extreme cases, negligence is insufficient for conviction in a criminal court. Rape is not governed by a negligence rule, though judges have accepted de facto negligence standards for rape convictions. Thus, rape shatters the second pillar of criminal law. No longer does a man have to be of guilty mind to be convicted of rape. In the past, one could have defined legal sexual intercourse as rape without a guilty mind. Nowadays, the courts have made it clear that even if there is no guilty mind, a conviction in a rape case is still possible if the woman has not consented. Considering that only the victim’s mind and thoughts determine her consent (rather than her actions), the thoughts and the guilty mind of the defendant are mostly irrelevant in today’s courts. In essence: the victim determines the guilty mind of the accused, even if she was willfully unaware of her surroundings and as a result was unable to give her consent willingly.

Finally, most date rapes boil down to ‘he said she said’ stories. Why should the court believe the accuser rather than the defendant? After all, the accused is innocent until proven guilty. Experts often claim that no woman would lie about being raped. This assumption is false. Women like men, have incentives to lie. One should assume these incentives are present in rape cases as well. Since false accusations are difficult to disprove, a reasonable doubt is ever present. The burden of proof that she is not lying, or that he is lying should be on the shoulders of the prosecution. This is a heavy burden, one that must be lifted beyond a reasonable doubt; and reason is always filled with doubts.

Suppose for a minute that the accusation is not false. Instead, it represents different perspectives of a situation. The accused never wanted to rape the woman, but the woman understood it as rape. What should the courts do? Since the defendant stands on trial for his own actions, his understanding of the situation is judged, not the victim’s. The court must determine his state of mind and his actions, not hers. The prosecution must prove that the defendant believed she had not consented to the act, rather than deal with her beliefs and actions. Yes, in light of the correct criminal approach, her deeds might speak louder than words if she had led him to think she wanted to have sex.

One must remember that a victim has no standing in a criminal court, and as long as this is the case, judges must treat defendants in rape cases just like they would treat other suspects. Will this mean that many defendants will be acquitted because of the stringent standards of proof? Yes, but that is exactly the purpose of the law. After all in a liberal legal system, it is better to set ten guilty men free, than have one innocent suffer.