Law is the dictate of reasons with merits and demerits. Explain and illustrate

Introduction:

Over the past fifteen or so years, the federal securities laws have been increasingly criticized on theoretical and empirical grounds as being more costly than beneficial to society[1]. For example, the full disclosure provisions of those laws turn out on empirical testing to generate more costs than benefits from a social point of view[2]. One key aspect of this analysis has come to be known as the “efficient market hypothesis.” That hypothesis, not refuted in numerous statistical studies, maintains that all known information about a firm is very quickly reflected in stock prices, well before disclosure mandated by the securities laws occurs[3]. Accordingly, detailed disclosure of past events in a firm’s life are already fully reflected in current stock prices, and knowledge of historical sequences of events is therefore of no value for investors in forming future expectations of stock prices.[4] Furthermore, it has been demonstrated that mandatory financial disclosure has not reduced the amount of fraudulent activity in the securities markets.[5] Yet the cost of generating such disclosure is indeed high.[6] The federal secure-ties laws, from the standpoint of economic analysis, have thus created higher costs for raising capital than would exist in the absence of such regulation, and they have not generated commensurate benefits for investors either with respect to enhancing the predictability of future stock prices or in connection with reducing fraudulent conduct by corporate operatives.

 There is another set of qualities ascribed to the actions and conduct of mankind, distinct from their propriety or impropriety, their decency or ungratefulness, and which are the objects of a distinct species of approbation and disapprobation.[7]The name of moral cause of an action to the person that produced it, either in the whole or part, by a determination of his will; whether he executes it himself physically and immediately, so as to be the author thereof; or whether he procures it by the act of some other person, and becomes thereby its cause. Thus whether we wound a man with our own hands, or set assassins to way-lay him, we are equally the moral cause of the evil from thence resulting.

[8] First in relation to the cause or object which excites it; and, secondly, in relation to the end which it proposes, or to the effect which it tends to produce: that upon the suitableness or unsuitableness, upon the proportion or disproportion, which the affection seems to bear to the cause or object which excites it, depends the propriety or impropriety, the decency or ungratefulness of the consequent action; and that upon the beneficial or hurtful effects which the affection proposes or tends to produce, depends the merit or demerit, the good or ill desert of the action to which it gives occasion. [9] To reward, is to recompense, to remunerate, and to return good for good received. To punish, too, is to recompense, to remunerate, though in a different manner; it is to return evil for evil that has been done.

There are some other passions, besides gratitude and resentment, which interest us in the happiness or misery of others; but there are none which so directly excite us to be the instruments of either. The love and esteem which grow upon acquaintance and habitual approbation, necessarily lead us to be pleased with the good fortune of the man who is the object of such agreeable emotions, and consequently, to be willing to lend a hand to promote it. Our Love, however, is fully satisfied, though his good fortune should be brought about without our assistance. All that this passion desires is to see him happy, without regarding who was the author of his prosperity. But gratitude is not to be satisfied in this manner.[10]Till we have recompensed him, till we ourselves have been instrumental in promoting his happiness, we feel ourselves still loaded with that debt which his past services have laid upon us.

The analysis of the sense of Merit and Demerit:

As our sense, therefore, of the propriety of conduct arises from what I shall call a direct sympathy with the affections and motives of the person who acts, so our sense of its merit arises from what I shall call an indirect sympathy with the gratitude of the person who is, if I may say so, acted upon. The sense of merit seems to be a compounded sentiment, and to be made up of two distinct emotions; a direct sympathy with the sentiments of the agent, and an indirect sympathy with the gratitude of those who receive the benefit of his actions. Self-interest serves as a guideline in every action:  No man gives, but with intention of Good to himself; because Gift is voluntary; and of all Voluntary Acts, the object is to every man his own Good.[11] Smith discerns two moral levels at which one may act: “Adam Smith does not hold that there is no ethics other than that turning on the outworking of the self-interest motivation, but only that the ethics of the economic process and of the state jurisdiction is of this sort. It is merely true that the ethics of benevolence moves on another and a higher level – the virtue of justice a real virtue – the virtue of benevolence equally real, but of a superior sort”[12] This argumentation is, in my view, convincing, but one problem remains: once one sympathizes with someone else and wants to alleviate his or her suffering, one wants to do this because the interests of the other person have become one’s own. However, why would one approach the other person in the first place? One may, after all, go through life completely individualistically. Apparently, one seeks out others. Only if this action is selfish as well may the idea be entertained.[13]

 In order to ascend to the first principles of this theory, we must observe, that as man is supposed to be obliged by his nature and state to follow certain rules of conduct; the observance of those rules constitutes the perfection of his nature and state; and, on the contrary, the infringing of them forms the degradation of both.[14] Now we are made after such a manner, that perfection and order please us of them; while imperfection and disorder, and whatever relates thereto, naturally displeases us.

Justice and Beneficence:

1. Actions of a beneficent tendency, which proceed from proper motives, seem alone to require reward, because such alone are the approved objects of gratitude, or excite the sympathetic gratitude of the spectator.
2. Actions of a hurtful tendency, which proceed from improper motives, seem alone to deserve punishment; because such alone are the approved objects of resentment, or excite the sympathetic resentment of the spectator.
3. Beneficence is always free, it cannot be extorted by force, the mere want of it exposes to no punishment; because the mere want of beneficence tends to do no real positive evil. It may disappoint of the good which might reasonably have been expected, and upon that account it may justly excite dislike and disapprobation: it cannot, however, provoke any resentment which mankind will go along with.
4. Resentment seems to have been given us by nature for defense, and for defenses only. It is the safeguard of justice and the security of innocence. It prompts us to beat off the mischief which is attempted to be done to us, and to retaliate that which is already done; that the offender may be made to repent of his injustice, and that others, through fear of the like punishment, may be terrified from being guilty of the like offence. [15]
5. Though the mere want of beneficence seems to merit no punishment from equals, the greater exertions of that virtue appear to deserve the highest reward. By being productive of the greatest good, they are the natural and approved objects of the liveliest gratitude. Though the breach of justice, on the contrary, exposes to punishment, the observance of the rules of that virtue seems scarce to deserve any reward.

Difference between the imputation of good and bad actions:

There is some difference between the imputation of good and bad actions. When the legislator has established a certain recompense for a good action, he obliges himself to give this recompense, and he grants a right of demanding it to those who have rendered themselves worthy thereof by their submission and obedience. But with respect to penalties enacted against bad actions, the legislator may actually inflict them, if he has a mind, and has an incontestable right to do it; insomuch that the criminal cannot reasonably complain of the evil he is made to undergo, because he has drawn it upon himself through his disobedience.[16] But it does not from thence ensue, that the sovereign is obliged to punish to the full rig our; he is always master to exercise his right, or to shrew grace; to entirely remit or to diminish the punishment; and he may have very good reasons for doing either. Whatever praise or blame can be due to any action, must belong either, first, to the intention or affection of the heart, from which it proceeds; or, secondly, to the external action or movement of the body, which this affection gives occasion to; or, lastly, to the good or bad consequences, which actually, and in fact, proceed from it. These three different things constitute the whole nature and circumstances of the action, and must be the foundation of whatever quality can belong to it.

The sense of Justice, of Remorse, and of the consciousness of Merit:

There can be no proper motive for hurting our neighbor; there can be no incitement to do evil to another, which mankind will go along with, except just indignation for evil which that other has done to us. To disturb his happiness merely because it stands in the way of our own, to take from him what is of real use to him merely because it may be of equal or of more use to us, or to indulge, in this manner, at the expense of other people, the natural preference which every man has for his own happiness above that of other people, is what no impartial spectator can go along with.[17] Every man is, no doubt, by nature, first and principally recommended to his own care; and as he is fitter to take care of himself than of any other person, it is fit and right that it should be so. Every man, therefore, is much more deeply interested in whatever immediately concerns himself, than in what concerns any other man: and to hear, perhaps, of the death of another person, with whom we have no particular connation, will give us less concern, will spoil our stomach, or break our rest much less than a very insignificant disaster which has befallen ourselves.[18] But though the ruin of our neighbor may affect us much less than a very small misfortune of our own, we must not ruin him to prevent that small misfortune, nor even to prevent our own ruin. We must, here, as in all other cases, view ourselves not so much according to that light in which we may naturally appear to ourselves, as according to that in which we naturally appear to others. Though every man may, according to the proverb, be the whole world to himself, to the rest of mankind he is a most insignificant part of it. Though his own happiness may be of more importance to him than that of the entire world besides, to every other person it is of no more consequence than that of any other man. Though it may be true, therefore, that every individual, in his own breast, naturally prefers himself to all mankind, yet he dares not look mankind in the face, and avow that he acts according to this principle. He feels that in this preference they can never go along with him and that how natural severs it may be to him, it must always appear excessive and extravagant to them. When he views himself in the light in which he is conscious that others will view him, he sees that to them he is but one of the multitude in no respect better than any other in it. If he would act so as that the impartial spectator may enter into the principles of his conduct, which is what of all things he has the greatest desire to do, he must, upon this, as upon all other occasions, humble the arrogance of his self-love, and brings it down to something which other men can go along with. They will indulge it so far as to allow him to be more anxious about, and to pursue with more earnest assiduity, his own happiness than that of any other person.[19] Thus far, whenever they place themselves in his situation, they will readily go along with him. In the race for wealth, and honors, and preferment’s, he may run as hard as he can, and strain every nerve and every muscle, in order to outstrip all his competitors. But if he should jostle, or throw down any of them, the indulgence of the spectators is entirely at an end. It is a violation of fair play, which they cannot admit of. This man is to them, in every respect, as good as he: they do not enter into that self-love by which he prefers himself so much to this other, and cannot go along with the motive from which he hurt him. They readily, therefore, sympathize with the natural resentment of the injured, and the offender becomes the object of their hatred and indignation. He is sensible that he becomes so, and feels that those sentiments are ready to burst out from all sides against him.

The Causes of this Influence of Fortune:

The causes of pain and pleasure, whatever they are, or however they operate, seem to be the objects, which, in all animals, immediately excite those two passions of gratitude and resentment. They are excited by in animated, as well as by animated objects. We are angry, for a moment, even at the stone that hurts us. A child beats it; a dog barks at it, a choleric man is apt to curse it. The least reflection, indeed, corrects this sentiment, and we soon become sensible, that what has no feeling is a very improper object of revenge.[20] When the mischief, however, is very great, the object which caused it becomes disagreeable to us ever after, and we take pleasure to burn or destroy it. We should treat, in this manner, the instrument which had accidentally been the cause of the death of a friend, and we should often think ourselves guilty of a sort of inhumanity, if we neglected to vent this absurd sort of vengeance upon it.

animals are not only the causes of pleasure and pain, but are also capable of feeling those sensations, they are still far from being complete and perfect objects, either of gratitude or resentment; and those passions still feel, that there is something wanting to their entire gratification.[21] What gratitude chiefly desires, is not only to make the benefactor feel pleasure in his turn, but to make him conscious that he meets with this reward on account of his past conduct, to make him pleased with that conduct, and to satisfy him that the person upon whom he bestowed his good offices was not unworthy of them. What most of all charms us in our benefactor, is the concord between his sentiments and our own, with regard to what interests us so nearly as the worth of our own character, and the esteem that is due to us. We are delighted to find a person who values us as we value ourselves, and distinguishes us from the rest of mankind, with an attention not unlike that with which we distinguish ourselves. To maintain in him these agreeable and flattering sentiments, is one of the chief ends proposed by the returns we are disposed to make to him.[22]

The object, on the contrary, which resentment is chiefly intent upon, is not so much to make our enemy feel pain in his turn, as to make him conscious that he feels it upon account of his past conduct, to make him repent of that conduct, and to make him sensible, that the person whom he injured did not deserve to be treated in that manner. What chiefly enrages us against the man who injures or insults us, is the little account which he seems to make of us, the unreasonable preference which he gives to himself above us, and that absurd self-love, by which he seems to imagine, that other people may be sacrificed at any time, to his convenience or his humour. The glaring impropriety of this conduct, the gross insolence and injustice which it seems to involve in it, often shock and exasperate us more than all the mischief which we have suffered.

The extent of this Influence of Fortune:

The effect of this influence of fortune is, first, to diminish our sense of the merit or demerit of those actions which arose from the most laudable or blamable intentions, when they fail of producing their proposed effects: and, secondly, to increase our sense of the merit or demerit of actions, beyond what is due to the motives or affections from which they proceed, when they accidentally give occasion either to extraordinary pleasure or pain.[23]

1. First, I say, though the intentions of any person should be ever so proper and beneficent, on the one hand, or ever so improper and malevolent, on the other, yet, if they fail in producing their effects, his merit seems imperfect in the one case, and his demerit incomplete in the other. Nor is this irregularity of sentiment felt only by those who are immediately affected by the consequences of any action.[24] It is felt, in some measure, even by the impartial spectator. The man who solicits an office for another, without obtaining it, is regarded as his friend, and seems to deserve his love and affection. But the man who not only solicits, but procures it, is more peculiarly considered as his patron and benefactor, and is entitled to his respect and gratitude. The person obliged, we are apt to think, may, with some justice, imagine himself on a level with the first: but we cannot enter into his sentiments, if he does not feel himself inferior to the second.[25] It is the speech which we constantly make upon every unsuccessful attempt of this kind; but which, like all other fine speeches, must be understood with a grain of allowance. The sentiments which a man of generosity entertains for the friend who fails, may often indeed be nearly the same with those which he conceives for him who succeeds: and the more generous he is, the more nearly will those sentiments approach to an exact level.[26]
2. The second effect of this influence of fortune is to increase our sense of the merit or demerit of actions beyond what is due to the motives or affection from which they proceed, when they happen to give occasion to extraordinary pleasure or pain. The agreeable or disagreeable effects of the action often throw a shadow of merit or demerit upon the agent, though in his intention there was nothing that deserved either praise or blame, or at least that deserved them in the degree in which we are apt to bestow them. Thus, even the messenger of bad news is disagreeable to us, and, on the contrary, we feel a sort of gratitude for the man who brings us good tidings. For a moment we look upon them both as the authors, the one of our good, the other of our bad fortune, and regard them in some measure as if they had really brought about the events which they only give an account of. The first author of our joy is naturally the object of a transitory gratitude: we embrace him with warmth and affection, and should be glad, during the instant of our prosperity, to reward him as for some signal service. By the custom of all courts, the officer, who brings the news of a victory, is entitled to considerable preferment’s, and the general always chooses one of his principal favourites to go upon so agreeable an errand. The first author of our sorrow is, on the contrary, just as naturally the object of a transitory resentment. We can scarce avoid looking upon him with chagrin and uneasiness; and the rude and brutal are apt to vent upon him that spleen which his intelligence gives occasion to.[27]

There is another degree of negligence which does not involve in it any sort of injustice. The person who is guilty of it treats his neighbours as he treats himself, means no harm to any body, and is far from entertaining any insolent contempt for the safety and happiness of others. He is not, however, as careful and circumspect in his conduct as he ought to be, and deserves upon this account some degree of blame and censure, but no sort of punishment. Yet if by a negligence*4 of this kind he should occasion some damage to another person, he is by the laws of, I believe, all countries, obliged to compensate it.[28] And though this is no doubt a real punishment, and what no mortal would have thought of inflicting upon him, had it not been for the unlucky accident which his conduct gave occasion to; yet this decision of the law is approved of by the natural sentiments of all mankind. Nothing, we think, can be more just than that one man should not suffer by the carelessness of another; and that the damage occasioned by blameable negligence, should be made up by the person who was guilty of it.

The final cause of this Irregularity of Sentiments:

Such is the effect of the good or bad consequences of actions upon the sentiments both of the person who performs them, and of others; and thus, Fortune, which governs the world, has some influence where we should be least willing to allow her any, and directs in some measure the sentiments of mankind, with regard to the character and conduct both of themselves and others. That the world judges by the event, and not by the design, have been in all ages the complaint, and is the great discouragement of virtue. Every body agrees to the general maxim that as the event does not depend on the agent, it ought to have no influence upon our sentiments, with regard to the merit or propriety of his conduct. But when we come to particulars, we find that our sentiments are scarce in any one instance exactly conformable to what this equitable maxim would direct.[29]

Conclusion:

To ascribe in this manner our natural sense of the ill desert of human actions to a sympathy with the resentment of the sufferer, may seem, to the greater part of people, to be a degradation of that sentiment. Resentment is commonly regarded as so odious a passion that they will be apt to think it impossible that so laudable a principle, as the sense of the ill desert of vice, should in any respect be founded upon it. They will be more willing, perhaps, to admit that our sense of the merit of good actions is founded upon a sympathy with the gratitude of the persons who receive the benefit of them; because gratitude, as well as all the other benevolent passions, is regarded as an amiable principle, which can take nothing from the worth of whatever is founded upon it. Gratitude and resentment, however, are in every respect, it is evident, counterparts to one another; and if our sense of merit arises from a sympathy with the one,[30] Let it be considered too that resentment, though, in the degrees in which we too often see it, the most odious, perhaps, of all the passions, is not disapproved of when properly humbled and entirely brought down to the level of the sympathetic indignation of the spectator.[31]

Before I conclude this note, I must take notice of a difference between the approbation of propriety and that of merit or beneficence. Before we approve of the sentiments of any person as proper and suitable to their objects, we must not only be affected in the same manner as he is, but we must perceive this harmony and correspondence of sentiments between him and ourselves. Thus, though upon hearing of a misfortune that had befallen my friend, I should conceive precisely that degree of concern which he gives way to; yet till I am informed of the manner in which he behaves, till I perceive the harmony between his emotions and mine, I cannot be said to approve of the sentiments which influence his behaviour. The approbation of propriety therefore requires, not only that we should entirely sympathize with the person who acts, but that we should perceive this perfect concord between his sentiments and our own.[32] On the contrary, when I hear of a benefit that has been bestowed upon another person, let him who has received it be affected in what manner he pleases, if, by bringing his case home to myself, I feel gratitude arise in my own breast, I necessarily approve of the conduct of his benefactor, and regard it as meritorious, and the proper object of reward. Whether the person who has received the benefit conceives gratitude or not, cannot, it is evident, in any degree alter our sentiments with regard to the merit of him who has bestowed it. No actual correspondence of sentiments, therefore, is here required. It is sufficient that if he was grateful, they would correspond; and our sense of merit is often founded upon one of those illusive sympathies, by which, when we bring home to ourselves the case of another, we are often affected in a manner in which the person principally concerned is incapable of being affected.[33] There is a similar difference between our disapprobation of demerit, and that of impropriety.

BIBLIOGRAPHY

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6. AQUINO, T. Summa Theologiae, 1a-2ae. Opera omnia, vol. 6. Rome: Ex Typographia Polyglotta S.C. De Propaganda Fide. 1891.
7. BURKE, E. A Philosophical Enquiry into the Origin of our Ideas of the Sublime and Beautiful. The Writings and Speeches of Edmund Burke, vol. 1. Ed. T.O. McLoughlin and J.T. Boulton. Oxford: Clarendon Press. 1997.
8. DAVENPORT, H. The Ethics of the Wealth of Nations. In: The philosophical review, vol. 34. New York: AMS Reprint Company. 1925.
9. HOBBES, T. Leviathan. Ed. C. MacPherson. Middlesex: Penguin Books. 1968. KANT, I. Grundlegung zur Metaphysik der Sitten. Kant’s gesammelte Schriften: Band 4. Berlin: Georg Reimer. 1903.
10. MANDEVILLE, B. The Fable of the Bees: or, Private Vices, Publick Benefits: part 1. Ed. F.B. Kaye. Oxford: Clarendon Press. 1924.
11. MANENSCHIJN, G. Moraal en eigenbelang bij Thomas Hobbes en Adam Smith. Amsterdam: Rodopi. 1979.
12. SHAFTESBURY, A. Characteristicks of Men, Manners, Opinions, Times, vol. 2: An Inquiry concerning Virtue and Merit. Birmingham, John Baskerville. 1773.
13. SMITH, A. An Inquiry into the Nature and Causes of the Wealth of Nations: part 1. Ed. R. Campbell, A. Skinner, W. Todd. Indianapolis: Liberty Classics. 1978a.
14. Indian Law Institute, Law and Social Change : Indo-American Reflections, Tripathi (1988)
15. R v Kite [1996] 2 Cr App R 295. There is also a report of the proceedings which the company brought against the coastguard for negligence in the conduct of the rescue: OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897.
16. Erlanger v New Sombrero Phosphate Co Ltd (1878) 3 App Cas 1218, p 1236 per Lord CairnsLC
17. Smith, Howard and Fingar, Peter, “IT doesn’t Matter – Business Processes Do”,. Meghan-Kiffer Press, Tampa, Florida, 2003.
18. Carr, Nicholas G., “Does IT Matter”, Harvard Business School Press, Boston, Massachusetts, 2004.
19. Carr, Nicholas G.,“Does Software Matter?” May 2004. http://www.darwinmag.com/read/050104/carr.html
20. Standish Group. The Chaos Report. Report of the Standish Group. 1994