Oh. Oh, No.

In a year in which socialist candidates are doing so well, competition for Bad Idea of the Year is fierce! However, we might have a winner already by about the halfway point.

Well, one often learns by making mistakes. Or, you know, someone else may learn from observing the experience.

By the way, the flaw in the plan isn't just the guns. It's the 'crash their system' idea. You are talking about people who are very comfortable operating without a system. When Hurricane Helene came through here, it absolutely crashed the system. Every system. The phones were out, the radios were out, the roads were all cut by fallen trees and washed-away bridges. Nobody waited for 'the system' to get fixed and start making things better. By noon I had a chainsaw militia clearing roads made up of every able-bodied man on the mountain and his chainsaw. Even once we began linking up the volunteer fire department and rescue technicians, guys with tractors were clearing roads the county wouldn't get to for days and the state wouldn't ever. 

FEMA? Never heard of her. 

Soco Gap

On Saturday, I rode across Soco Gap between Haywood and Jackson Counties to head down into the Cherokee Boundary Lands. I wanted to visit the casino because it has a Gordon Ramsay "Street Food" court, and I wanted to see what the famous chef's take on street tacos was like. (Spoiler: Gordon Ramsay doesn't know anything about street tacos.)  We got good and soaked, the several of us bikers headed that way, during a wave of cold and driving rain that came across just then. 

Since I was doing 'little known facts of local history' on the main post, here's another one:

In Cherokee, the pass is known as Ahalunun'yi (ᎠᎭᎷᏄn'Ᏹ), meaning "Ambush Place" or Uni'halu'na (ᎤᏂ'ᎭᎷ'Ꮎ), meaning "where they ambushed;" named after the occasion, probably in the mid-18th century, when the Cherokees ambushed a party of invading Shawnees, all of which were killed except for one, who was sent back (without his ears) to tell his people of the Cherokee victory.

I admire the directness of the Cherokee naming convention. My guess is that there were many more ambushes at that gap. It's the natural 'head them off at the pass' location between Maggie Valley and the main homeland of the Eastern Band of Cherokee. It's not far from Big Witch mountain, which is just a bit to the west along the Blue Ridge Parkway. There are many witches in Cherokee mythology; I don't know which one that title means to connote. 

A Theory of Play

I saw this post on "X" and wondered if it was being tremendously unfair, so I went to see what else I could find about it. It sounds like it might be pretty fair in spite of the tone; the commentator on the other side seems to agree about the basic facts.

I looked into it and was surprised to learn that Lego launched the Friends line after years of market research. In 2008, they found that 90% of Lego sets were being sold for boys, despite the fact that they’ve had pretty gender neutral advertising over the decades. That means if they could find a way to reach out specifically to girls, they could practically double their sales. They studied how girls and boys built and played with castle Legos, and they found that boys built the castle and then enacted battles in front of it — the castle was just the backdrop. The girls built the castle and then were disappointed that there wasn’t anything going on inside of it where they wanted to enact their stories. They also learned that the girls were more interested in smaller projects, and that they were more likely to want to see themselves in the minifigs. And thus “Friends” was born, with hearts and butterflies and pink and purple colors and listed on the Lego website under the category of “girls.”

The second set of comments, which is the one I quoted, is from a site dedicated to science and skepticism from a feminist perspective. She still has some objections to the idea of gendered sales of "girls" toys and "boys" toys, and wants boys to be more comfortable trying out pink and purple and flowers. I kind of think we have probably chased that particular rabbit as far as it'll run, and the question now is what we do instead. 

But I'm no longer in the toy-buying market, and won't be again until and unless I get some grandchildren.  

Othering English

I was listening to someone talking about "othering" this morning, and I realized that part of the reason to avoid jargon is to avoid the baked-in weights it brings. A more usual reason is that you can't speak to anyone outside of your niche if you are captured by the jargon and can no longer express your thoughts without it. That will limit your ability to persuade anyone who isn't already part of your esoteric area of thought. Speaking plain English lets you speak with everyone who understands English.

Yet when you start trying to express what 'othering' might mean in plain English, you discover quickly that right away you lose the judgment that it is necessarily bad. In fact, even as a philosophical concept it isn't bad: it only became assumed to be bad when Critical Theory built out an argument that was adopted into theories of racism and colonialism. More basically, the idea of recognizing that some things aren't you is a necessary part of figuring out what is you, and thus what is yours. Recognizing that some things aren't yours is a necessary part of admitting to some limits on yourself: mind your own business means discerning what is, and is not, your business. Accepting limits on your own grasping will is an ethical value of the first rank.

To say that this is a process of discernment means also that it is a process of refinement. I am now figuring out what I like, and what I don't like. If we were talking not about racism but about, say, wine or fine coffee, we would in fact praise this sort of mindful experience, reflection, and then refinement of our tastes. Kant's Third Critique turns on how to do this well in what he thought was a universal and humane manner. 

That doesn't mean that racism is good, of course. It just means that you now have to explain how this process of recognizing your own limits, of discerning and refining your tastes, can go wrong as well as go right. That's a much more interesting and useful discussion to have; and if you can have it in plain English, you can have it with a much wider audience. 

Intellectual Diversity and Political Tolerance

You can't beat a deal like that.

Biker rallies are intellectually diverse. This one place is selling F*CK TRUMP patches right next to F*CK YOU TRUMP HATERS patches. There is widespread tolerance for varying political opinions, which is probably not what is generally assumed about biker rallies.

You can also buy brass knuckles. Other people's political opinions are generally less threatening when you have a good pair of brass knuckles. 

We're all going to get soaked together anyway.

It’s a racially diverse crowd too. Lots of black bikers up from Atlanta to enjoy the Smokies. The first one I saw was by himself and looked nervous about the Confederate flags*, but I made sure to welcome him so he'd know he was OK. He clearly felt better and, in short order, would have found that he was in no ways alone. We're all Americans up here. 

Usually the Redrum MC comes out, and they’re a Native American/First Nations led motorcycle club (not exclusive; white people can join, but they’re about honoring Native Americans). 

Theoretically this is Outlaws MC territory, but everyone is welcome. I see Outlaws and Pagans and a Hells Angels support club here. It’s just a good time for everyone.

We did get soaked, though.

All together a unifying and memorable experience. 

That one bike with her head turned is especially pretty.

I really appreciate motorcycle culture. People have their heads on right.** The political moment passes; every election is 'the most important of our lifetime.' But in the end, you pick your patch or no patch, sew it on or don't, and we all go ride the eternal mountains together. When all the dry land was one continent, these mountains were still here -- these Appalachians linked to the Grampians in what is now Scotland. They're old, and we're passing. We commune with them and are one with them. 

That's what matters. 

* Locally you see a lot of Confederate flags. This is because the Confederacy won the war here. At the end of the war, Thomas' Legion of Indians and Highlanders compelled the surrender of the last Union forces in the region. The Cherokee Nation declared war on the Union and allied with the Confederacy, for the obvious reason that the Union had been waging war on them since at least President Andrew Jackson, and for the less-obvious reason that they also were a slave-owning power. They joined with Scottish and Scots-Irish Highlanders to form a combined arms force that fought through the entire war. Together, they defeated the Union forces and obtained an agreement to surrender in the local town of Waynesville, North Carolina. As it happened, news of Lee's surrender to Grant arrived at about that same time, so they still held the surrender but reversed the polarity about which side was surrendering. However, the mountain folk were not only never defeated, they won. They remember that they won. The Cherokee often fly the Confederate flag too for the same historical reasons as the Highlanders. 

** Funniest thing that happened today: as I was going to the head, a lady biker with a beer in her hand took one look at me and squared up her shoulders. "Wanna fight?" she demanded. I smiled and answered, "Shore." She put her beer aside, raised her fists, and said, "Let's go!" Then she laughed, tapped my shoulder, picked up her beer and went on about her business. 

Firewood

Conan enjoys this much more than I do.

I usually start in February, and it takes until summer starts to finish. Cut a fallen tree here and there, split it and stack it, a bit at a time as I have time to spend on it. Now it can season all the long summer and autumn, and be fully dry by the time the cold arrives. 

Cash on the Barrelhead

Kind of a catchy song from 1950s honky-tonk. By coincidence I was talking with my wife yesterday on a walk about how she, her first time away from home in the 1980s, had no ability to call long-distance to reach home. My father having been a professional telephone man (and volunteer fire-fighter), I explained that all she had to do was go to any payphone -- remember payphones? -- and press "0," then explain what she wanted to a helpful operator. No one had ever explained that to her, so she was just unable to use the phone service when away from home for her several years at college. 

Not much help now, that explanation! In those days, we employed banks of operators full-time whose job it was to help you navigate that problem. Now a long-distance call isn't even expensive on most phone plans. Overseas ones still can be. 

“Confessions” of a Priest

In the following article, a basic conflict over the idea of natural law is spelled out by one Catholic priest who is competing with others -- including the infrastructure surrounding several Popes. He has support from another priest here. The more important priest, the one who wanted to essentially dispose of the old ideas about Natural Law, is interviewed here in Italian (but translators are easy to find these days).

In an interview... Bishop Vincenzo Paglia claimed a decisive role in the dissolution of the John Paul II Institute for Studies on Marriage and Family and its replacement by a new academic entity, as well as in the radical transformation of the Pontifical Academy for Life. He also made clear that these interventions were intended to bring about a profound paradigm shift, which—for the first time—he explicitly acknowledged as affecting not only the pastoral sphere but the doctrinal one as well.

According to Paglia, this “very profound” reform entailed, above all, a rethinking of the very concept of natural law. Paglia accused the John Paul II Institute of advancing a conception of natural law understood as a set of immutable principles from which moral norms are deduced. He proposed, instead, that natural law must be grounded in an ongoing historical discernment of subjective and cultural experience. In this perspective, a “theology within history and within people’s lives” must replace what he characterized as the late Institute’s “armchair theology.”

The short quote should suffice to show that this is not a debate limited to the Catholic Church. It is the cultural debate of the last several generations in the West. 

Always a Step Ahead

Wretchard, I mean. 

He usually is.

He points out that this means that the Chinese Communist Party is actually opposed to all the diversity initiatives it has spent so much time and money fostering in the West. So too, of course, the environmentalism; the opposition to data centers to power American AI; the opposition to militarism; to nuclear power.... 

Old Soviet trick, that last one. They just picked it up, but they generalized the lesson. The same part of the West keeps falling for it over and over again. 

Only if the scales ever fall away from their eyes. We're going on three generations now without that happening. If anything the mania seems to be growing, fired by social media propaganda so popular and mind-bending.

A Final Note on Exemplary Justice

I wrote on this directly in 2015. My thesis at that time contradicts every other philosopher; it is ancient in form, but it disagrees with all the ancient philosophers and sides instead with the poets, Plato's favorite enemy.

I quote this section in order to point out that this has not been the opinion of the enlightened only recently. Socrates is brought up against it by Protagoras:

If you will think, Socrates, of the nature of punishment, you will see at once that in the opinion of mankind virtue may be acquired; no one punishes the evil-doer under the notion, or for the reason, that he has done wrong, only the unreasonable fury of a beast acts in that manner. But he who desires to inflict rational punishment does not retaliate for a past wrong which cannot be undone; he has regard to the future, and is desirous that the man who is punished, and he who sees him punished, may be deterred from doing wrong again. He punishes for the sake of prevention, thereby clearly implying that virtue is capable of being taught. This is the notion of all who retaliate upon others either privately or publicly.

Rational punishment does not look to the past but to the future, Protagoras says. Indeed, since we cannot change the past, the only reason -- that is, the only kind of purpose to which rationality even might apply itself -- for punishment must be an eye toward the future. Deterrence is rational. Rehabilitation is rational. Mere retribution is bestial, so he argues.

I think that the opposite is true. It is the beast who is most likely to forgo retribution. They will act not to revenge past harms, but to avoid fresh ones. They might kill you if they think you are still dangerous and sense a momentary advantage. They might just as readily avoid you to keep from presenting you with a chance to hurt them again. They will not feel any duty of honor to avenge themselves, or their families, nor to repay you for the wrongs you have done.

Retribution is a higher, not a lower quality. This is orthodox, is it not? Vengeance is the divine quality, not a bestial one. Human beings are urged to mercy and kindness toward their enemies not because it is irrational or animal to punish past wrongs, but because they are not high enough to do it well and justly. Be patient, return kindness for cruelty, and you will heap hot coals on their heads.

How fitting, then, that it was a Vicar who provided the author cited at the top of this post with his reasons. But this is not a purely Judeo-Christian view. The Ancient Greeks thought this too, those of them who were poets instead of philosophers. They also thought that vengeance and retribution were divine. Hesiod even tells you her name.

Plato and Aristotle on Exemplary Justice

In the Laws, Plato has his three strangers turn their attention to the matter in Book IX. Plato recommends for theft a proportionate equality, by which he means you must restore what you stole, and exactly that much again over it (thus, twice what you stole). This is purely retribution, and as I noted in the commentary it wouldn't have much deterrent effect. 

Plato hopes deterrence won't much be needed, as the book had opened with: the Athenian stranger was embarrassed even to admit that so well-ordered and virtuous a people would require criminal punishments at all. The whole structure of the work of the Laws is to try to deter crime by structuring a society so well that virtue will be the inevitable result. In Book X, for example, he lays out the mythological structure that will keep the people aimed in the right direction without the need for punishments. The myth reinforces the law, and makes all sorts of lawbreaking a sort of blasphemy -- which was punishable by death. The example is in the myth, though, not the punishment: blasphemers were to be executed not to set the example but to punish their blasphemy. It was the myth that set the example.

It was curious to me at the time, and remains so, that the Athenian later proves very interested in military punishments in Book XII. Anyone who has been associated with the military understands that regular disciplinary actions are part of the life; and being so regularly necessary, capital punishment can't be the normal course of action. Thus, we can't view military punishments as a sort-of blasphemy requiring execution every time. In fact, military punishments in the model city are notably milder than the punishments recommended for civilians, which is an interesting feature of the Laws' model. That is not normally how military justice has worked, although I guess there are some exceptions -- everyone knows of the guy who was allowed to join the Marines instead of prison. (I did in fact know a guy like that growing up. He turned out great after the Marines.)

For Aristotle, justice divides between distributive and rectificatory. The latter is most like Plato's 'proportionate equality' in revenging theft in that it repays those who have suffered damage, and it does so on lines of arithmetical equality. Aristotle's version doesn't worry over the question of whether a good man or a bad one defrauded the other, or whether the fraud was an accident or by intention: what is owed is to make the defrauded one whole. 

Now this was the EN, not the Politics, so we aren't looking at crime as such; more like a divorce settlement, I mentioned in that commentary, where it matters which spouse was the adulterer and which one not; it doesn't really matter which one was the better person, or how justified or not the adultery might have been because of neglect or hard feelings, just which one broke the agreement. 

What isn't advocated for here, though, is either revenge or example-setting. It would be wrong to punish the adulterous husband (or wife) a whole lot more just to send a message to other spouses; what is just is to recognize the harm done in the specific case, and address that and only that.

Prime Conan

Having seen what Amazon Prime wanted to do with Tolkien, I don't know if I'm pleased to hear this or not. However, since I subscribe to Amazon Prime anyway for the free delivery (even way out here, well, almost -- the mailbox is half a mile away), I suppose I'll see what it looks like if it makes it the screen.

Exemplary Punishment

There is a standing philosophical debate about exemplary versus retributive punishments. The sentences handed down yesterday against the ANTIFA cell in Texas -- 100 years for shooting a gun aimed at the ground, thirty years for moving a box of literature connected to the attack -- are versions of exemplary punishment, i.e., punishments that are meant to 'make an example' to deter others. 

Exemplary punishments are favored by some philosophers as the only moral form of punishment, because they think that retributive punishments do not work. Retribution on the other hand has Biblical warrant, famously 'an eye for an eye,' etc., so especially Christian philosophers have often suggested that it is moral to punish someone only for their own crimes/sins, and not for those of someone else -- especially crimes (or sins) that haven't even been committed yet, and may never be at all!

My favorite philosophical theory on retributive punishment -- not because I advocate for it, but because I love retelling it to see people's faces -- is Kant's theory. Kant especially loved capital punishment, which he advocated for a very great many things. One of those things was rebellion against your sovereign, as he was very much a law-and-order kind of guy. In the Metaphysics of Morals, he talks about two Jacobites who come to trial for their rebellion -- which sufficed, for him; the details didn't matter beyond that they were rebels. (For those of you who want to look it up, this is in Ak. 6:334). 

Kant said that the judge ought to offer each of them the choice between death or lifelong slavery. He imagines that one chooses death and the other slavery. The one who chose death should receive his wish and be put to death, because he is "acquainted with something that he values more highly than life, namely honor, while the scoundrel considers it better to live in shame than not at all." The one who prefers slavery should be denied his will, because he has proven he is unworthy of the honor of having his will respected: he should also be put to death. 

Hegel was also a retributionist; he thought that treating a man as a man by punishing him only for his own actions was just, whereas punishing a man to deter others was like "raising a stick at a dog," i.e., treating the other men as if they were animals to be intimidated rather than men to be respected. The use of the first man as a mere instrument rather than as an individual worth respect offended both. 

Hobbes is mostly a retributionist, but he allows that a valid secondary choice is to correct others liable to the similar offense. 

Those are all Modern thinkers, in the philosophical sense of the term -- Hobbes is really Early Modern. Among the Ancients, the exemplary punishment is the usual standard. Plato advocates for it the Protagoras as the only valid reason for imposing punishment.

If you will think, Socrates, of the nature of punishment, you will see at once that in the opinion of mankind virtue may be acquired; no one punishes the evil-doer under the notion, or for the reason, that he has done wrong, only the unreasonable fury of a beast acts in that manner. But he who desires to inflict rational punishment does not retaliate for a past wrong which cannot be undone; he has regard to the future, and is desirous that the man who is punished, and he who sees him punished, may be deterred from doing wrong again. He punishes for the sake of prevention...

Likewise in the Gorgias and the Laws, the latter of which we went through at length together once. The Stoic position is similar, advocated by Seneca in (De Ira 1.19). Aristotle's discussion in the EN, which we also went through together, spells out retributive punishment explicitly, but also allows for deterrence and for restorative punishment as alternative forms. 

Not that it has only ancient advocates; deterrence/examples live also in J.S. Mill's utilitarianism, Bentham's as well (Rationale of Punishment).

I'll do a follow-up post later, I think, examining what I said about the issue in my commentaries on the Laws and the EN. For now, I just want to raise the matter for our discussion. What do you think about it?

Follow-up to Prior

The last post was more than long enough, and attacked the basic problem of 'what is wrong with this coherent argument about fairness?'. However, the Clovis example reminds me of an interesting fact about the Beowulf.

Clovis asks his warriors for a gift of honor at the end of a successful fight. He does not simply lay claim to a share of the treasure that is not warranted by the equal law governing their unequal society: "I ask you, O most valiant warriors, not to refuse to me the vase in addition to my rightful part."

The one soldier who refused him obeyed their law about division of spoils, but also then refused the king a requested gift -- he denied him an asked-for honor, which is to say that he imposed a shame. It was this, I think, that Clovis was revenging with his later murder of that soldier in a shameful manner, imposing a shame on him in turn. The entry does not mention, however, if Clovis later paid a blood-price to the soldier's family, as is highly likely. Fairness and unfairness were not the only issues in that society; the honor requested and the shame of being publicly embarrassed had to be addressed as well.

In the Beowulf, which holds up the title character as the very model of honor, we get demonstrations of what contemporary societies thought ideal behavior looked like. Having come to help the Danes with Grendel (in order to repay a debt of honor to Hrothgar incurred by Beowulf's father, who had enlisted Hrothgar's aid to help settle a wergild dispute of his own), Beowulf defeats first Grendel and then, when it proves necessary, Grendel's more powerful and magical mother. In doing the latter, he discovers and wins a great treasure. 

What does he do with it? He gives it all to Hrothgar.

Beowulf spake, offspring of Ecgtheow:

“Lo! we blithely have brought thee, bairn of Healfdene,

Prince of the Scyldings, these presents from ocean

Which thine eye looketh on, for an emblem of glory.

Beowulf had come, after all, to help Hrothgar and settle his father's debt of honor. He keeps nothing for himself. Yet Hrothgar recognizes that this 'gift from the ocean' is too great on top of the fight Beowulf has borne, and creates a new debt of honor on him. He repays this by giving Beowulf presents of his own, rich ones; and later, when Beowulf would leave him to return home, parting gifts as well. Hrothgar declares that all the old feuds are forgotten, and the two peoples united in friendship by this mutual exchange which will bring further visits and exchanges and growth and prosperity.

Unferth, a thegn of Hrothgar's who had not been able to defeat the monsters, gives Beowulf his sword as a gift -- an honor that repays the shame Unferth likely felt at having been unable to do the deed himself. Beowulf's acceptance of this redeems Unferth's incapacity, and restores the honor he might otherwise have lost by not being part of the story of Grendel's defeat.

On the return home to his own king, Hygelac, Beowulf is met by the coast guard to whom he gives a sword as a gift; then, on arrival to the king, he gives the king all that Hrothgar had given him as gifts to his own king, thus eliminating any chance that Hygelac would see Beowulf's newfound wealth as a potential threat to their relative positions. But this is also not the end of the exchange, because Hygelac then gives Beowulf great gifts in return for the substantial honor that Beowulf has shown to him by this free-handedness with what he had won. These gifts include manors and establishments that will produce wealth, placing Beowulf higher in the structure of Geat power because he has proven he can be trusted to keep faith with his king. Indeed, after Hygelac's death and then the death of his son, Beowulf arises to the kingship himself. 

This mode of gift-giving looks unbounded and without economic logic to modern eyes: Beowulf was the one who had earned the 'presents of the ocean' through combat; why give it to Hrothgar, who had already received much by having the monsters killed? One present, perhaps, but all of it? Then too with Hygelac, who had perhaps contributed by allowing Beowulf to go on the trip rather than insisting he stay at home; but did he thereby deserve all of the spoils of the venture? In freely giving away everything and keeping nothing for himself multiple times, Beowulf places his fate in the hands of men who are the very sort of men that the author of the 'fairness' piece would suggest ought to be expected to take unfair advantage, being already in positions of social power and authority. It looks illogical and uneconomical.

Perhaps outside of a work of literature, the kings would have behaved more like Clovis than like Hrothgar or Hygelac. Yet in the poem, where the ethic is being spelled out purely and on its own terms, honor provides an answer to these problems of economic grasping. Each recognizes the honor being done him and repays it fairly -- fairly, not disproportionately to his own advantage according to a notion of 'fairness' that is derived from the system's own extant inequalities. At least in the poem, honor proves to have an economics and a logic of its own, one that leads to Beowulf reigning in peace and stability for many decades. His people love him; nations abroad respect him whether they love him or fear him.

And so there is peace, until the dragon comes.

Justice as Unfairness

AVI has posted an interesting challenge, an article that strikes me as making a coherent but wrong argument; yet saying just exactly why it is wrong is the interesting and challenging part. It also plays with examples with which I am well-familiar, such as the diyya, an Islamic form of the wergild/weregeld that I have written about many times because we used to help negotiate them in Iraq as a means of trying to bring peace in tribal disputes that were contributing to the insurgency. 

The basic thesis is stated here: 

Fairness does not come from external principles that exist in the universe and bind us. Fairness norms are human solutions. They are the rules for playing the game of life properly and agreeing on everyone’s due in society.

Fairness norms allow people to avoid having to haggle all the time in real life and to agree quickly on how to split rewards and costs in their interactions. But they can work in practice only if they are not too far from what people could actually claim using their raw bargaining power in a hard-fought bargaining process. Only norms that are broadly in line with actual differences in bargaining power will tend to last.

The immediate problem with that thesis is that it does itself do what it claims it cannot do: it defines fairness, i.e., as "playing the game of life properly and agreeing on everyone's due in society." If this is a universal truth across all of the various societies covered, then there is a philosophical universal at work; the fact that different societies have come up with different ways of agreeing about how to address that universal is actually evidence against the idea that "fairness does not come from external principles," i.e., external to the facts about a given society. If every society develops some idea of fairness in spite of their substantial differences, there probably is -- indeed almost certainly must be -- something external to the facts of any given society driving that project.

The second problem with the thesis arises from the examples. Since I started with the diyya, I'll begin this part with it too. He's arguing that fairness norms essentially ratify existing imbalances in social bargaining power, and points to the fact that in Iranian law (his example, but Islamic law generally) a woman's life is worth half the compensation of a man's. It is true that women have less bargaining power in Islamic societies and under Islamic law; a woman's testimony is also worth half of a man's. Yet the diyya is not the only such system historically, and the value of free women compared to free men has not always disfavored women even though presumably women always had less bargaining power in the era.

This effectively made killing a celibate priest as expensive as killing a nobleman, a useful incentive for communities tempted to settle disputes with the local clergy through violence.

Women of childbearing age occupied an unusual position. The Salic Law valued a free woman who had begun bearing children at 600 solidi, triple the price of a free man, reflecting the community’s loss of future population.

Note that those arguments about why the price was set where it was are assumptions of the modern author, and that they are in direct conflict. If the concern was with future population, a celibate priest would be worth less, not much more. Still: the priest in that society had a very high bargaining power, being able to draw on the authority of the Church as its representative locally in an era of great Church power. One who was powerful enough that he could retain his position even though he was known not to be celibate presumably had greater bargaining power, though, not less: if the author's thesis were correct, he should command more compensation, not less, but the facts say otherwise. And the valuing of a free woman at three times the rate of her husband is not likely a demonstration that she had three times the bargaining power in society! Yet it was the case. 

This points to the second problem, but I'll go through another one of his examples before stating it. He opens with an example of king Clovis killing a soldier after that soldier enforced the (actually perfectly equal in spite of differing social/bargaining positions) Frankish rule about distribution of captured war treasure. The conclusion the author draws is that this shows that the equal rule couldn't survive in an unequal society. The example is contingent, however; if the soldier had survived Clovis' attempt and killed the king in revenge, he might well have been rewarded by being elevated to the kingship himself by his fellows (the same ones who had, after all, accepted his rebuke of the king earlier). Then we would be reasoning from the example that the equality demonstrated by the rule was so persuasive, even in an unequal society, that violating it allowed you to rebuke kings or, in extreme cases, kill and replace them (which is, by the way, the story of how the fictional Conan the Cimmerian became king by his own hand -- a story from a much later time).

The author of the original piece is a behavioral economist, not a philosopher nor a historian. He is attempting a philosophical project from historical examples. The problem with doing that is that the two disciplines are diametrically opposed to one another: history is concerned with stating the particular facts that actually happened; philosophy is concerned with the universals (such as this notion of 'fairness,' which appears in at least some form from Aristotle's 'justice as fairness plus lawfulness' to Iranian diyya to Saxon wergild to American payments for wrongful death or dismemberment). The attempt to straddle that line with economics is closer to the historical project, but the historical facts are in a sense accidents that might have gone this way or a different one as far as we know. The universals are found where, regardless of which way the facts happened to go, we still find the same themes emerging. 

Fairness and its relationship to justice is one of those things. I think it is probably true that those who occupy powerful bargaining positions are able to use their bargaining power in part to get the people around them to ratify their unfair position. The fact that they always feel the need to do so, with tools like laws or by purchasing social praise from journalists, or from skalds or scops or poets, or by purchasing masses from priests or commissioning praise-plays from playwrights, shows not that fairness is defined by their power. It shows that they are universally keenly aware that the unfairness makes their position perilous, and are always in every society seeking to shore it up. 

So what is fair, regardless of the facts of society? That was a question asked by John Rawls in the last century in his famous 'Veil of Ignorance' thought experiment. It's not an experiment that can actually be performed successfully, only imagined as a way of thinking about the problem. If you could pull people from different societies, times, and places, and put them through this 'veil' so that they were temporarily unaware of the facts of their society, and ask them to devise fair rules for any society -- knowing that any society would have inequalities of these kinds, but not knowing where they would fall -- what kinds of rules would they devise? 

Rawls wrote a long book about the idea that 'justice JUST IS fairness,' but if you read it he ends up smuggling back in Aristotle's idea that you need laws to enforce people treating each other the way that virtuous people would do by free choice. Thus, after the whole long thing you end up all the way back at the beginning with Aristotle. But there's your universal: two thousand years of law and economics and philosophy, and we always end up in the same place.