“But you only understanding the language of the sword” – Lyrics from Krigsgaldr (the Song of the Sword), by Heilung

Those animals which are incapable of making covenants with one another, to the end that they may neither inflict nor suffer harm, are without either justice or injustice. And those tribes which either could not or would not form mutual covenants to the same end are in like case. – Principal Doctrine 32

What does PD 32 mean, in practice? As regards to examples of people who have neither the power nor the desire of making a covenant to not harm or be harmed, we can think of warlike primitive humans, cannibals, or cognitively deficient humans who are incapable of communication and of understanding. These may fall within the category of those who are incapable of abiding by laws or rules. As for those who are unwilling, I think of the Vandals, Goths, and other Barbarian, “uncivilized” (lawless) tribes that sacked and invaded Roman lands. I also think of the Orcs from Lord of the Rings, terrorists, and anyone who is armed and unwilling to abide by laws against violence and against murder. If a person or group invades your home and is obviously unwilling to “agree to not harm”, then we have to do whatever we have to do for the sake of self-defense. It says there is no injustice (no contract or oath was violated), but there’s also no justice because this would have happened in a wild state of nature, in an uncivilized, lawless state of nature.

While Hobbes argued (in his Leviathan) that people in this lawless state can be “tamed” with a strong state and with strong laws, the Epicurean doctrines of justice create a category of wild, uncivilized humans, tribes, and animals that is separate from those that are domesticated or civilized–who are described as able to agree to not harm or be harmed. These contracts of mutual benefit and of non-violence are explained also by Lucretius in a passage (in Book V) on the origins of friendship and compassion for the weak. The bottom line is that civilized tribes and humans live by a legal code of some sort, whether a rudimentary one (an unwritten, tribal code of honor that may include an agreement not to kill or abuse members of one’s own tribe) or a complex system of laws (like those of modern countries). Wild animals and humans, on the other hand, do not have such a code and–since they live in a wild, lawless state and obey “the law of the jungle”–might make unreliable neighbors.

Laws are created not for the wise (who are naturally harmless to others), but for the unwise. But a code of laws is no guarantee that people will abide by them. We see in Diogenes’ Wall Inscription, that the Epicureans seem to have always expressed doubt as to whether many people (in particular, religious people) are able to abide by the laws out of fear of divine punishment. What does this mean? It means that the state (or the religion) and its laws are not enough to safeguard our security, since some people will not abide by the laws, and will live in a wild state even in places that offer the possibility of lawful coexistence. In these cases, there is neither justice nor injustice. In other words, we must engage in self-defense if we are attacked.

As history demonstrates, there are no gods who will come down and punish those who enslave others. There is no absolute or eternal justice. Humans invented the laws and humans must re-write them. Humans must figure out that a practice is disadvantageous or immoral, and reform themselves. Humans must also enforce whatever rules they set for their societies.

This doctrine tacitly accepts the possibility that some animals may be able to come to agreements with us. There are pods of dolphins in Brazil that have developed a habit of fishing together with human fishermen, with both species developing efficient communication techniques, and both groups enjoying the fruits of their work. In his sermon on moral development, Epicurus dedicated some time to discussing predators like sharks, and other beasts of whom we have the expectation that they will be wild (it must be added here that in that same sermon, Epicurus defends the idea of moral development–which is another important benefit of PD’s 37-38: they allow for laws and contracts to evolve with us). On the other hand, we have more noble expectations from humans and other domesticated animals because they are, well, domesticated–if not civilized. Recent years have seen a trend where certain species are being categorized as “non human persons” due to their high intelligence, and it is not entirely clear where they may fall in terms of justice and the ability to agree to not harm, although once trust is established (as we see in many research projects with apes), we observe that even humans can be accepted into the tribes of these higher animals. We likewise see in domestic animals an ability to abide by house rules, which we do not see in wild animals.

Other tacit teachings within this doctrine are that justice exists only for the civilized, and that it requires efficient communication (at least enough to have an agreement between two persons).

The PD’s and Slavery

The issue of slavery was brought up by Alan recently, as having moral clarity with regards to this issue is often seen as a litmus test for whether a moral system is useful and compatible with civilized life and with modern society.

There are various ways in which people in antiquity became slaves. The main way was debt-based slavery: less wealthy people signed a contract requiring to pay back money lent to them by wealthier people or institutions. If the debt remained unpaid by a certain date, then the person had to pay with their service or slavery for a period of time agreed upon, until the debt was entirely paid back.

There has never been a clear boundary between debt and slavery, even today. If a person today is in debt, that person must get involved in wage slavery or indented servitude, giving a bank or lender the fruits of their labor until the debt is paid.

This form of indented slavery (ancient or modern) is based on a mutual agreement, and the only way in which we can avoid debt-based slavery is by making these contracts illegal.

However, all or most Africans who were abducted unfairly and sold into slavery 400 years ago were, in all likelihood, not in debt.

Africans who were enslaved 400 years ago had the ability and the willingness to abide by laws or agreements of mutual benefit and of not harming or being harmed. They were taken against their will, which is unjust.

Slavery, and the Problem of Non-Consent

A black African person who was captured 400 years ago and enslaved, would have been able and willing to enter into covenants–at least as able as the black Africans who sold him. But they were denied consent.

Consent of the governed is found in the Declaration of Independence, and is a foundational political concept in the West. It gives moral legitimacy to a government and to a legal system. We could argue that today consent is given by voting into power a representative in government, in addition to the process of signing a contract.

Can Slavery Have Been Useful for Mutual Association?

So one Epicurean argument against slavery is that Principal Doctrine 32, when requiring that creatures be able and willing to abide by agreements and laws, contains a tacit taboo against non-consent. PD’s 37 and 38, on the other hand, make a definite value judgment and moral judgment in the cases where consent has been given. A person (the enslaver, in this case) who denies consent to another is attempting to recede back to the wild state of nature.

Among the things accounted just by conventional law, whatever in the needs of mutual association is attested to be useful, is thereby stamped as just, whether or not it be the same for all; and in case any law is made and does not prove suitable to the usefulness of mutual association, then this is no longer just. And should the usefulness which is expressed by the law vary and only for a time correspond with the prior conception, nevertheless for the time being it was just, so long as we do not trouble ourselves about empty words, but look simply at the facts. – Principal Doctrine 37

A fellow Epicurean asked me to interpret “whether or not it be the same for all”. My immediate thought was of instances where it is of mutual advantage for people with different skills to agree to do different things in the pursuit of a shared goal. This scenario is most often seen in work places. A great mathematician may agree to work as the accountant of the firm, a great manual laborer may agree to do the manual work and train others to do so, a good cook may prepare lunch for all workers, etc.

In the US and many countries, judges are considered prepared to judge among parties once they are sworn in. Other citizens are expected to abide by their judgments. Everyone can not be a judge, or a legislator, or a business owner. A society where everyone fulfills the same role is not a functional society. So justice is not about equal duties.

In PD 38, we are invited to judge laws by their consequences. This raises many other interesting moral questions concerning laws that have been recently abolished: we may think of the many detrimental consequences of the war on drugs (massive incarceration for victimless crimes, squandering of police resources, expenses of imprisonment for the tax-payer, inability to tax a huge industry, etc.) or of the illegality of gay marriage (closeted gay people marrying the opposite sex, and then being unhappy and unfaithful). Here, the disadvantages did not seem to justify the advantages of the legality of consuming cannabis and gay marriage.

Where without any change in circumstances the conventional laws, when judged by their consequences, were seen not to correspond with the notion of justice, such laws were not really just; but wherever the laws have ceased to be useful in consequence of a change in circumstances, in that case the laws were for the time being just when they were useful for the mutual association of the citizens, and subsequently ceased to be just when they ceased to be useful. – Principal Doctrine 38

Was slavery at one time useful for the mutual association of the citizens? Well, the institution of slavery (for instance, in the Americas) caused lives of misery for millions, huge security concerns, huge cruelty, a Civil War where thousands died, and its legacy created and perpetuated levels of inequality that are still today generating social unrest. Anyone who claims that slaves “would give them (or the enslavers) pleasure” and tries to justify slavery based on pure hedonism, is not expressing an Epicurean view–since we must walk with Pleasure, but also with Prudence and Justice. This is why some of us modern Epicureans take the liberty to criticize the hypocrisy of slavery in Jefferson and ancient Epicureans, even if we understand that those were different times.

Since–as we have seen–Blacks who were enslaved in the Americas were denied the opportunity to consent to the covenant into which they were inserted, it is impossible to argue for mutual advantage in slavery without considering how it was experienced in the bodies, minds, and realities of the Blacks. Due to the problem of non-consent, slavery in the Americas was carried out in a state of wilderness, of lawlessness, regardless of whether slavery was legal. It did not emerge out of contractual agreements or as a form of debt.

If 500 years ago, Africans had invaded and pillaged Europe (if they had been the original aggressors instead of being abducted into slavery), a different situation would have emerged, one where non-law-abiding humans would have inserted themselves into law-abiding societies with a clear unwillingness to agree not to harm others. This would have made imprisonment, enslavement, or violence a measure of self-defense for those invaded. But this was not the case.

I wish to accentuate, once again, that these PD’s give a definite moral judgment. They say “this is just / unjust”. While there is no absolute, de-contextualized or Platonic morality, the PD’s do not remain silent with regards to giving moral judgment. PD’s can be applied to modern legal codes, and to codes of honor, to certify whether they are just (even if for a time) based on utility for mutual association.

Let’s consider what it means to say that laws may change, depending on circumstances, in order to become just or to abolish injustice: this means that laws are man-made and what laws man has invented, man can abolish or change. There is no room for divine laws or superstition in any legal code certified by an Epicurean. It also creates the possibility of collective moral development, of self-betterment for individuals and their societies–for which the PD’s furnish guidelines based on mutual advantage, and for which we may apply public frank criticism, if this is advantageous.

Conclusion

And so, to summarize, the main Epicurean arguments against slavery as an institution are:

1. Since there is no mutual benefit in slavery, laws that allowed for slavery by abduction were unjust. It’s not clear how Epicurus acquired his slaves, but it’s clear that Jefferson engaged in an unjust practice.
2. The denial of consent problem presents a set of moral questions that have not been tackled effectively by later generations of Epicurean thinkers, and requires a deepening of our studies. My suggestion is that this is one of the implied requirements of contractarian justice, which is based on mutual agreements to not harm or be harmed.
3. There is no absolute or divine, unchanging justice. We do not see evidence for divine enforcement of our laws in the study of nature. Humans invented the laws and contracts, and humans must re-write them when this is advantageous.
4. The Principal Doctrines 37-38 do not shy away from giving moral judgment in cases where laws are not beneficial for mutual association. Epicurean philosophers may either draft our contracts, or issue opinions concerning the prevalent laws in our societies, based on these guidelines.
5. Epicurean doctrines establish two categories of animals: those who are wild and uncivilized (incapable or unwilling to abide by laws and agreements), and those who are civilized (law-abiding and contract-abiding). Justice and injustice only exist for the civilized, while the former live like beasts.