Wednesday, June 20, 2012

Pray for the welfare of electricity monopolies

The government in the US grants monopolies to electric companies. Thankfully, it's not one company per country, but oftentimes, it is one company per state, or per region, or at least per city.

Recently, the electric monopoly of Boston area, NStar, has received a good share of criticism. Most of it has to do with outages resulting from old or badly maintained equipment, personal errors, long response times to electric line damages (thousands of families were without electricity for weeks as a result of a "hurricane" last year — part of the time, during freezing weather), drastically rising costs of service and operation, and environmental mishaps. Basically, every problem that can happen to an electric company has happened to NStar.

I am sure the same is the case with almost every monopoly out there. I remember, when I was living in the South, the same things were said about the local energy company, Entergy.

Some of these things may not be the companies' fault. For instance, rising service costs have to do with rising gas prices, which the companies are hardly responsible for. On the other hand, we simply do not know what the "right" price for electricity in a given region should be, because there is no competition, and a company can charge higher than it would had the energy business existed in a free-market condition. The same goes for response times, equipment maintenance, etc.: all these problems which are blamed by NPR hosts on "greed" have to do with the government creating a monopoly. And also, probably, with greed. And mismanagement. But greed and mismanagement are allowed to flourish and give fruit when there is no competition. Free markets punish for them. Customers punish for them.

All this is beside the point, however. We do all use electricity. Every day, people use it. Hospitals use it. Police and firefighters use it. Businesses use it. Synagogues use it. We use it during the week, on Shabbos (passively) and on Yom Tov. Electricity has greatly transformed our existence, has benefited us immensely. It has allowed us to live more comfortable, more fulfilled, more meaningful, and longer lives. It has allowed us to be (with all other things being equal) better human beings and better Jews. Just today, without electricity I may have suffered great health problems (G-d forbid) as a result of the heat wave.

Therefore, I wish to propose the following two statements:

1. Pray for the welfare of local electricity monopolies. For without them, we would all sit in the dark. We would be cold in the winter and hot in the summer.
2. Even a worst electricity monopoly is better than lack of electricity monopolies, when a man has to sit in the dark and live in the Middle Ages.

Clearly, the two statements are ridiculous. Right?

Without NStar, there would be a different company. If it's a bad electric company, it must fail and be replaced by a better one. Better yet: why not allow electric companies to compete and see which one does a better job or gets a greater share of the market? In fact, let two or more companies co-exist and cater to different customers' preferences. I am currently trying to decide whether to stay with my current Internet service provider (which charges cheaper rates and gives better speed of connection, but whose service outages are more frequent) or switch to a different one. The same kind of choice should exist for electric companies.

And the second statement is silly too. It seems to imply that there are only two choices: NStar or sitting in the dark. But that is clearly not true. There is a middle ground.

(Also, it's not really true that without electricity we would be cold in the winter or hot in the summer. People would come up with some of the obvious alternatives.)

So, why, when the same two statements are said regarding the government (first one is modeled on a Mishna, second — on a rishon's comment to the Mishna), we just gulp them up? I am not saying that we should just discard something that Chazal say, G-d forbid, but perhaps when the statement is strange, we can use a little common sense and logic to try to figure out its meaning and applicability, as opposed to doing Bible-thumping.

Perhaps what Mishna said was that we should value electricity... I mean, law and order — not the actual organization of the government, but the service that it provides. Just like we should value medicine. Without it, people would surely die in many cases. Does this mean there has to be a monopoly on medical decisions in a given geographic area (and, for that matter, as wide an area as possible)?

Perhaps in Mishna's times and the place where it was written, there was no societal concept of anarcho-capitalism (many independent and passively competing sources of law and order coexisting within the same territory). We know that such a thing has existed in the past, but it doesn't mean this concept was available to the specific society of Mishna's times and place (or those of the rishon commenting on the Mishna, even though he was a relative contemporary to medieval Ireland and Iceland).

Political concepts are not much different from technology or medicine or economics. All of them are just ideas about how to do things. Their accumulation and development require research, passage of information down the generations, ability to improvise and experiment, and flexibility to accept change. We shouldn't blame Chazal for working within the political realities of their times any more than we should blame them for working within technological, economic, or medical realities of their times.

But then again: we should be cautious to accept blindly the statements that are so strongly intertwined with the state of the contemporary knowledge as binding to our times, and, worse yet, as some sort of eternal instruction of how to view certain phenomena. That may refer to bleeding or leeching; that may also refer to cornering the markets or the government.

Tuesday, June 12, 2012

Tuesday, June 5, 2012

Polish duel

I've posted this before. The action in this scene happens during one of the wars between Poland and Sweden. Polish king's marshal is trying to get one of the Polish nobles to fight for Poland. The noble refuses. The marshal has his house surrounded by the king's soldiers. He calls him out to a duel, promising that if the noble wins the duel, the soldiers will let him go (he makes the soldiers swear).

This is the duel itself:

At the end of the duel, the marshal slightly taps the noble on his head to knock him out. The noble survives and ends up fighting for Poland against the Swedes.

By the way, I recommend to anyone interested in Polish literature and history (military or not) book by the famous historical fiction writer Henryk Sienkiewicz (pronounced as "Senkevich"). The above action is taken from a movie based on the book Deluge.

(Also, interestingly, the author used to be very popular among early Zionists. He was also very popular in Russia as many other Polish authors. In fact, my favorite writer today remains Polish, and one of my favorite writers of the childhood was Polish.)

Monday, June 4, 2012

Social contract, majority rule, and chazakah

I have just seen the following justification for the concept of the government in a book on Jewish ethics. I am paraphrasing (since I don't have the book in front of me), but the idea is common enough. It went something like this:
All civilized societies recognize the need for law and order. The individuals living in the societies recognize that they need to give up some of their freedoms and rights in exchange for protection of others -- in particular, freedom from danger and right to safety of one's person and possessions. 
To achieve this goal, the societies form governments which represent the people of the individual societies. Since no government can enjoy a unanimous support, the majority rule is evoked: the fact that majority of people support a particular government creates a custom of acceptance of this government's rule. Just like any custom supported by the majority, this custom is binding on the minority.

Let's break it up in parts and see if they make sense:
All civilized societies recognize the need for law and order.
So far, so good. Agreed.
The individuals living in the societies recognize that they need to give up some of their freedoms and rights in exchange for protection of others -- in particular, freedom from danger and right to safety of one's person and possessions.
And we started off so nicely... The purpose of the law is to protect one's rights, correct. But it does not follow that to have law you need to give up some of your other rights (for instance, a right to pick your own rights protector out of the list).

For instance, you can have a society built like any anarchic societies throughout history: for instance, medieval Ireland or Iceland. You choose your own law-enforcement (or rights-protection) agency, become its voluntary client, and enjoy the protection of your rights. As long as the majority of people agrees in the society that such a state of affairs is good and that peaceful arbitration between private "government" agencies is preferable to violent wars between them, such a society will have law and order without a need to give up one's rights.
Since no government can enjoy a unanimous support, the majority rule is evoked: the fact that majority of people support a particular government creates a custom of acceptance of this government's rule. Just like any custom supported by the majority, this custom is binding on the minority.
Note that here there are two arguments for the defense of a government monopoly:

1. We need a monopoly, because otherwise we wouldn't have law and order. (Disproved above.)

2. Because most people choose a particular government, this choice creates a custom. This custom, just like all other customs, is binding on the citizens of the community.

I want to address the latter argument. It is an argument similar to one present in the discussions of some poskim (both Rishoinim and Achroinim) in justificaiton of dina demalchusa dina. Some of the modern commentaries invoke this precise argument, attributing it to the Razal.

Let's try to rephrase the argument giving an example:
In most cities, people enjoy being able to travel to other cities quickly by buses. For that reason they sometimes endure sitting in an uncomfortable seat for a few hours. In a particular community, the majority prefers to travel by Greyhound. The minority prefers Bolt Bus which has more comfortable seats but more expensive tickets.

Because everyone recognizes the need to have buses, the majority may compel the minority to choose Greyhound. First, because you can't have two bus lines operating within the same city (the buses will be unable to negotiate the right of way on the road and run into each other, causing casualties). Second, because by choosing Greyhound, the majority created a custom, and just like any other custom, this one is binding on the whole of the community.
 The absurdity of both arguments is self-evident.

But what about the Razal? I think what they are saying (and I base this on the article about dina demalchusa dina in Encyclopedia Talmudis) is the following:

When people interact, they do so within certain customs. Customs are implicit understandings between people that need not be negotiated explicitly. That is why the majority's custom may be binding upon a minority (as long as the minority interacts with the majority in the area that the custom applies to). For instance, if in some locale, upon hiring a worker to paint your house, it is customary to pay him for a half-an-hour lunch break, then the workers have a right to demand the break. If you did not pay them for the break time, you stole from them (or committed a form of stealing, called neshek, "withholding a debt").

Customs may arise spontaneously. Customs may also be set up by the authorities. For instance, in the US people drive on the right side of the road. In the UK -- on the left. It could be that these customs arose spontaneously. It might also be that they were set up top-down, by some authority. It doesn't matter. As long as the majority abide by this custom, it becomes binding on the minorities and individuals (as long as they share the same commonly used road with the majority).

Because the laws of the government practically speaking create such customs (whether government coercion is ideal or moral doesn't matter; the fact is that it creates patterns of human behavior), dina demalchusa dina -- the law of the land is binding.

Note, first of all, that this refers only to the laws which create patterns of behavior. Not arbitrary positive regulations or restriction (such as "it's illegal to sell used mattresses in Massachusetts"). Second, the chazakah (custom) mentioned here is not regarding the acceptance of the government, but regarding  the acceptance (or tolerance, or obedience under threat of punishment) of its laws as customs. Hence the popular translation of dina demalchusa dina: "the law of the land is the law". The law of the land: meaning, its people's customs.

Sunday, June 3, 2012

Dina demalchusa and halachic responsa

Interesting article on Daf Yomi web-site that shows that even if one simply goes through existing teshuvos, not everything is so simple with dina demalchusa dina.

What's important in these two examples is not so much the final psak but that the issue is being discussed at all. The poskim don't just accept DDD hands down, but discuss its applicability. In the second example, economic basis of a specific law and its effect on the community is discussed.
Since the early periods of our exile many Jewish communities have been subject to cruel governments that have treated them and their property arbitrarily and taxed them unfairly. The question arose as to when a Jew would be forbidden to take money from such a government whose funds are deemed to be stolen. In a certain Hungarian community a fire consumed some buildings owned by a wealthy Jew. The local regime exploited the situation, forbade him to rebuild and confiscated his land for public use. He demanded compensation. 
The government taxed the Jews to finance the compensation, claiming they would benefit from the public facilities though only a few Jews lived in the area. The government paid the landlord but the Jews in turn demanded their money from the wealthy Jew. Our sugya explains that if tax-collectors give a person something in return for what they took, he must return it to its owners. So, in this case, the government took the land and paid the owner funds collected from Jews. They, in turn, wanted to be compensated. However, the Erech Shay (162:61) decided that he is not obligated to do so as it is not certain the money he received was the very same coins collected from the Jews.
Note the specific reason he did not obligate the land owner to return the money. What interfered here was a detail, but not the spirit of the concept that taxation of the community was immoral.

Second example, with some introduction:
First of all, we must emphasize that illogical laws that a king arbitrarily imposes are excluded from the category of dina demalchusa dina, as mentioned in our sugya. Concerning ordinary laws imposed by a king, the Rishonim have a few opinions as to which must be obeyed (see Rema, Choshen Mishpat 369:8): 
1.We must only obey laws pertaining to taxes,
2. We must only obey laws intended for the king's benefit, and
3. We must obey all the laws, both those for the king's benefit and those for the public benefit.
Rabbi Moshe Feinstein, zt"l, (Igros Moshe, Choshen Mishpat 2:62) sums up the parameters of this Halachah and says that we must obey laws intended to maintain public order and prevent anarchy [and by "anarchy", Rav Moishe erroneously means chaos and lawlessness — CA]. As mentioned above, those who live under a government must accept its laws. Still, some laws are not included in dina demalchusa dina, such as inheritance laws, which cannot be defined as intended to prevent general civic disorder. Many people divide their assets as they see fit. Further, there are not many inheritance disputes over a given period arousing worry for civic order. Those laws do not necessarily stem from any wish to maintain the regime or protect the country. 
When the law for the protection of tenants was brought to the attention of poskim, they decided it was created only for the benefit of the public and not for the government. Hence, the obligation to obey it depends on the above difference of opinions as to whether we must obey laws intended for the king's benefit or those for the public benefit. As the Halachah has not been clearly decided, many opinions continue to be expressed (Imrei Yosher II:152:2, by Rabbi Mayer Arik, zt"l; Chavatzeles Hasharon, Choshen Moshe 8, and in its 2nd edition, 86; Dovev Meisharim, 76; Minchas Yitzchak, II, 86; Tzitz Eliezer, 10:52; etc.). 
The author of the responsa Chavatzeles Hasharon questions the fairness of the basis of the law. In his opinion, when the law was passed, it aided tenants in rented homes. Later, rental conditions worsened as prospective landlords were worried that the law would curb their rights. As a result, there is some doubt as to defining the law as benefiting the public. He further claims that the law's basic principle was dictated by communists or socialists who sought to re-distribute property equally among all people, thereby sometimes seizing properties from their owners, a viewpoint not condoned by the Torah.
The last paragraph is rather amazing, in my opinion. And once you open the door to permissibility to question the government's law as far as its effect on the community... well, the sky is the limit. And by "sky" I mean laissez-faire. Of course, most poskim probably wouldn't agree with this, but they would simply be injecting their socio-economic views into their halachic opinions. (I am not saying that that would invalidate the specific opinion. I am saying that they would not be definitive as to the principle of DDD.)

The above are just two examples of how the way things stand with DDD is not poshut at all.

Also, I believe the above introduction to the concept is rather simplistic. One has to look into the halachic basis for DDD and the scope of its applicability. Unfortunately, most people treat these two topics as separate: they discuss the spread of the opinions of why dina demalchusa is binding and then move on to discuss which kinds of laws are binding. From such a discussion, it seems that the two topics are separate. But in fact, it's quite the opposite: one must be able to see the existing shittos that link the basis for DDD and it scope.

I will cover that in the future posts...

More pie for me

Normally, I am not a big fan of these Facebook memes, but I thought this one was very good. It is a very good description of what Keynesian economics boils down to: