Author: Lucas Grosman

2

Against Honor

In response to my post on the right to honor, Mark introduces a distinction between group honor and individual honor. He identifies the former with clannism, and emphasizes the liberal virtues of the latter. The distinction is a sound one, but let me press the point. The question is how central the right to honor is, even if individualistically formulated, in a given constitutional system. I find it very difficult to believe that any system where honor is a central value shall perform very well in the liberal ranking, since that would imply that when other rights (typically, freedom of speech) are in conflict with honor, it is the latter that will prevail. So if The New York Times affected Sullivan’s honor by conveying an inaccurate picture of how the police dealt with the Civil Rights protesters, an honor-based system will not hesitate to condemn the newspaper. To borrow from my country’s case law, in Argentina a conservative supreme court established in the 90s that to assert on TV that the Virgin Mary was not quite a virgin, as a writer did during a TV show, entailed a violation of constitutional law –inter alia, of the right to honor of the plaintiff, a Christian who cherished the Virgin and felt insulted. These are just anecdotes (and I can think of many others along the same lines), but the point is more general: when the right to honor is central, courts will decide cases favoring it over other rights, and this will entail the restriction of, typically, freedom of speech. I have no doubts that such a system is less committed to liberalism than the alternative one, and this seems irrespective of the collective- individual divide.

Dignity is a related but distinguishable concept. I must say that, honestly, I find this concept difficult to grasp, and I am not sure I follow Stephan’s explanation. A right to have all other rights sounds a bit puzzling to me. It is also an ambiguous concept. When the German Constitutional Court decided that a law allowing the Ministry of Defense to shoot down aircrafts in a  9-11 scenario was against the Constitution, dignity played a central role. Here, dignity is related to the Kantian idea that persons are not means but ends in themselves. I find that decision hard to endorse, but that is beside the point. I just want to note that in such case dignity functions as a general prohibition against a certain type of consequentialist analysis, while in other contexts it is equated to honor, reputation, etc. Thus, for example, when it is claimed that insulting a person affects his or her dignity, which is the case I had in mind.

Honor is related to status, to ranks, to having one’s position in society properly acknowledged. Bergthora tells Hallgerd to move from the table and give her space to someone of higher ranking. Hallgerd feels insulted (The Rule, p. 123). I can imagine similar quarrels taking place in the most liberal of societies. I do not think, however, that it would be such a heightened sensitivity to social status that would make that society liberal.

 

0

No Redress for your Lost Honor

In The Rule of the Clan, Mark Weiner points out that in moving from Status to Contract, from the rule of the clan to the rule of law, courts replace clans as adjudicators of disputes and providers of redress when lives, limbs, or property are taken. However, in many cases this passage implies not only a transformation in the channels of redress but also in its content –or, rather, on whether redress is deserved at all.

There is a particular right whose significance is substantially diminished in this process, namely, the right to honor (sometimes referred to as the right to reputation or to dignity, which can also mean something different). This right occupies an important place in many constitutional systems in Europe and Latin America, as well as in international human rights covenants (e.g., Universal Declaration of Human Rights, article 12; American Convention on Human Rights, article 11). (I tend to think that in the U.S., honor, as such, is protected at the state level, e.g. by laws prohibiting libel, not at the federal constitutional level; but perhaps I am missing something).

In essence, your right to honor is affected if someone lies about you or insults you. To redress such attacks, civil or criminal remedies may follow. However, remedies addressing injury to honor have tended to shrink in the last decades, especially when opposite to honor is freedom of speech, as it is often the case. Thus, the doctrine of actual malice laid down by the US Supreme Court in New York Times vs. Sullivan reduces significantly your chances to recover if you are a public person whose honor was attacked by a non-malicious newspaper. Similarly, international bodies insist that criminal laws prohibiting libel should be repealed in the name of freedom of speech. In Argentina, a few years ago, the Supreme Court adopted the NY Times doctrine and followed the international advice to eliminate criminal liability for libel.

Whereas, as Mark Weiner explains, traditional organizations such as clans find honor to be a central value worth your life, in more liberal settings the trend I have noted seems to mark the decline of honor as a value worthy of legal protection. However, the decline of the right to honor is not straightforward or universal. Could one take the level of protection of the right to honor vis a vis the right to free speech (a paradigmatically liberal right) as a proxy of the prevalence in a given society of more traditional values once related to life in a clan? Is the reduction of the legal protection to honor the result of a cultural shift, or rather an anticipation of such shift? Or, if the causal relationship between law and culture is multi-directional, could it be both? These are questions for legal historians and sociologists, among which I cannot count myself; as an amateur, I can speculate, though, and Mark, I am sure, can take it from here.

 

0

The Trojan Horse

 

“Of course I can lend you the money, how could I refuse. After all, you are part of my family, and, in our family, if someone is in need, we try to help them,” says a man in his sixties to a younger one, probably his nephew. But we soon learn that there is no such thing as a free lunch: in the next scene, the lender explains how the borrower will make his money worth. It is a long list, which includes such things as taking care of the lender´s huge dogs (enter two mastiffs, panting) while Uncle Rich is on vacation and picking him up from the airport in the small hours when he is back. Moreover, we also learn, the loan will give the lender the right to interfere from now on with the borrower´s private life –his choice of job or girlfriend, his life style, even his hair cut. Apparently, Uncle Rich has strong ideas about all these things, and he is ready to enforce them. We thus come to realize that this family loan is in truth a Trojan horse; and that is, of course, the whole point of the story, since this is a TV commercial (now showing on Argentine TV) advertising a new type of bank loan which, we are told, is particularly convenient. Potential borrowers are invited to choose Contract rather than Status.

 

This, of course, is a biased and incomplete picture of what goes on in these situations, but let me focus on what is true about it. People may obtain from their extended family a type of economic or financial support they would hardly obtain elsewhere; but providing such support legitimizes and gives occasion to increasing family interference with individual autonomy. In this sense, it is not only the case that “supportive” extended families get leverage to interfere, as the bank commercial emphasizes, but also that such interference is based upon a genuine interest. The extended family now has an additional reason to be concerned about the decisions the borrower makes, and more often than not it will traduce such concern in concrete commands. When this happens, the price paid for family support is loss of autonomy.

 

Now the same could be true about the State. When citizens of the Soviet Union were denied the right to travel abroad, the Soviet Government alleged that it could not risk losing the huge investment it had made on those citizens, should they decide not to return home. After providing a first class education at no cost, the citizens in question, could –if allowed– now migrate to a country which did not actually make such an investment (neither on Soviet citizens nor, for that matter, on its own citizens) yet would reap the fruits. The Soviet Union, according to this argument, faced a classic free-rider problem.

 

There are a number of reasons why the above argument to deny the right to travel abroad is flawed, and should not be endorsed, but I hope the general point remains clear: providing support has implications on the supporter’s power, if not right, to interfere with the autonomy of the person who, whether by request or not, receives such support. Families –and States—have fewer or no incentives to provide support when they cannot guarantee that the beneficiary will pay back in some currency or other. (I am using “pay back” and “currency” in a very loose sense, of course, to account for the myriad of things extended families and States may expect to obtain in return for their support, even when that expectation is implicit).

 

Mark Weiner’s wonderful book The Rule of the Clan emphasizes the extent to which the absence of the State in any given area invites the emergence of clans instead. This applies to police forces and courts, of course, but also to economic support. Moreover, a State actively engaged in the provision of goods such as healthcare or education speaks to the egalitarian goal that Mark Weiner identifies as inherent in societies of status. In that sense, The Rule of the Clan can be read as an argument in favor of a State that honors the liberal ideal of respecting people’s autonomy, while guaranteeing the support –or some of the support— that in more traditional social organizations clans or extended families provide.

 

That, I believe, is the aspiration of liberal social democracies, i.e. societies that wish to be true to both liberty and equality. I find it an aspiration worth endorsing, and I would not call it Utopian by any means, but it is important to bear in mind the structural fragility of the project, and the likely trade-offs it involves.

 

It takes a very enlightened State to strike the right balance. Uncle Rich, of course, would not be the example to follow.