Expanding the Liberty Canon: Tacitus on Barbarian Liberty

Cornelius Tacitus was a Roman senator and historian from the early Roman Empire. Some details of his life are oddly evasive given his high status in the Roman system and his fame as a writer. It is not known what his first name was (Romans had three names), but Gaius and Publius are the most widely accepted hypotheses. It is not clear where he was born except that it was some distance from the city of Rome. Southern France (or Gaul) or northern Italy are the most widely accepted hypotheses. His exact dates of birth and death are not known, but he lived from about 56 to 117CE.

Tacitus was one of the great antique historians and prose stylists. He deserves to be read by liberty enthusiasts for the record he provides of ideas of liberty in Rome, as well as for reasons of literary appreciation and general historical knowledge. His historical work includes the Annals and the Histories, which are a major source of information abut the history of the early Roman empire, as well as of the political attitudes of the traditional Roman ruling class at that time.

There is some overlap between the Histories and the Annals, and the texts under discussion in the present post, which are On Agricola and On Germany, but it the fist two texts will be covered in a later post. I have already had a lot to say about the republicanism of the Athenians and the Romans, so it is time to consider how the ancients conceived of liberty in the ‘barbarian’ nations, those nations lacking the cities, literary,  and unified legal-political systems known to Greek and Roman writers. Another topic to be considered later is how the ancient republicans understood good rule in a monarchy, the Cyropaedia of Xenophon from ancient Athens is the most obvious example, and deals with the education of the Persian king Cyrus. There is some overlap between the topics of wise monarchy and barbarian liberty, particularly if we look at how these ideas evolve over time, something that will be be explained at the end of this post.

Tacitus’ general position on Roman politics was that of an aristocrat enthusiast for the Republic, who despised many of the early emperors, but was at least willing to give credit to those emperors he believed were behaving with respect regarding the aristocracy and old republican values. In particular, Tacitus gives negative view of the personality and means of rule used by the second emperor Tiberius, a far more scathing impression of the following emperor Caligula, and a generally horrified impression of Roman leaders and the culture of Rome until the time of Nerva and Nerva’s successor Trajan. Nerva and Trajan are the first two of the Five Good Emperors, also including Hadrian, Antoninus Pius, and Marcus Aurelius.

That sequence is conventionally regarded as the highpoint of the Roman Empire before a decline which ends in the fifth century fall of the West and the formation of Hellenic despotism in the East. That is not exactly a view universally accepted by historians now, and I do not refer to it to endorse it, but to refer to a very powerful story influencing the understanding of history and the fate of states over the centuries. Anyway, Tactitus did much to form the earlier part of that time honoured if now much criticised historical understanding. It seems to me that it is as least correct to see some substantial, if very variable, respect for republican forms and manners until the death of Marcus Aurelius, though supreme power had been premised on control of th military since Julius Caesar’s time.  After Marcus Aurelius, maybe some republican legacy remains in that the Senate in Rome always has some influence, but that influence looks weak compared with that of the power of the military, which decided the name of the emperor in times of uncertainty or became the source of coups by would be emperors.

Tacitus’s republican inspired criticisms of emperors who humiliated or ignored the Senate were not a wish for popular government, this was a distinctly aristocratic wish for liberty for those who deserved to exercise liberty, combined with nostalgia for a stern public morality of self-restraint and courage associated with the memory of the early Republic. Tacitus’ objections to unrestrained emperor rule were partly of mild behaviour towards slaves and the promotion  of freedmen over free men. The freedman had a particular legal status in Rome, as a slave emancipated from slavery, but still bound to render services to the the master who freed him (I’m excluding women here as they do not enter into the politics of the time) and who could be taken back into slavery if he failed to recognise his obligations. So only the children of a freedman were truly free and thy were still of socially low status, at least according to the old aristocratic families in the Senate. Emperors were happy to give important jobs to freedmen who owed them particular loyalty, rather than aristocrats who might believe in their own rights independent of the emperor. So Tacitus, along with other senators, was very much in favour of a state, a kind of republic under an emperor, ruled by free men, on the understanding that only a very limited class of men deserved freedom, understood as the right to exercise political power as well as non-political legal rights.

One way in which Tacitus examines an alternative to the apparent decadence of Rome was with reference to the barbarian subjects or enemies of Rome. He was particularly concerned with two groups of barbarians, Britons and Germans. He discusses the Britons as part of his tribute to his father-in-law Agricola, the Roman governor of ‘Britannia’ (England, Wales and a very variable part of Scotland) who consolidated the conquest undertaken by the Emperor Claudius.

As Tacitus notes, Julius Caesar failed to conquer Britannia, so noting the limitation of the effective founder of the Emperor system, though its formal start is associated with the consolidation of powers and titles, new and old, by Caesar’s successor Augustus. Tacitus is also referring to the difficulties of conquering the Britons who had a fierceness lacking in the Roman legions, disciplined and brave in battle as they were. Tacitus’ praise for his father-in-law is enhanced by and feeds into recognition of the difficulties of subduing the fiercely independent people of this terrible cold, rainy, and foggy land at the edge of the Roman world. As Tacitus notes, resistance to Rome first came from a queen, Boudicca, occupying a role of political and military leadership closed to Roman women Tacitus has little else to say about this situation, but at least has acknowledged a form of struggle for liberty under a woman beyond any episode of Roman history.

The biggest voice for British love of liberty is given to Calgacus leading opposition to Rome in the highlands of Britannia. Tacitus attributes a speech to him, which is likely to have much more to do with Tacitus’ own imagination and political sensibility than anything the historical Calgacus ever said. We will never be sure about this, but in in any case Tacitus gives an important example of some deep ambiguities in Roman thinking about liberty and their own civilisation. Calculus condemns the greed for wealth of the Romans and portrays them as only exercising power through enslaved peoples rather than their own courage and merit. The reference to enslaved peoples is to people politically and militarily subdued by the Romans, with most remaining above slave status, rather than the enslavement in the strongest sense of every individual within a people. The liberty the Britons are depending comes from a simple moral struggle to defend family and immediate community from foreign domination, not from a wish to enslave others. Calgacus recognises the remoteness of Brittania from Rome and from Roman civilisation, making their struggle a struggle of wilderness, mountains and places by the sea against a gigantic continental force, fighting with nothing to lose except the liberty of simple peoples with simple lives.

Tacitus is giving voice to a mentality he admires though coming from a people who deserved to be slaves because they failed to throw off Roman mastery. That is partly a matter of war, which Tacitus implies through Calgacus, the Britons lacked talent for over time as opposed to a capacity for isolated surprise victories. Tacitus both admires the courage of the barbarians and despises their lack of discipline. The real source of their slavery though is the luxury that Roman rule brings to Britannia (in practice this can only apply to a minority of urban dwellers and larger to a minority Romanised upper class within that category), so that the Britons forget liberty as they enjoy the fine living of Roman civilisations. Tacitus himself enjoyed that fine living while continuing an idealisation of Romans as simple hardy brave people, which in early history even applied to aristocrats who were small property owners, farming their own land. Tacitus both wished to keep his privileged life and use the ideal of simple republican virtue against the emperors and those corrupted by emperors.

Tacitus wrote on the difficult to conquer but finally conquered Britons and also on the impossible to conquer Germans. The Germans again resisted Caesar, but unlike the Britons resisted a succession of Roman Emperors. Like the Britons, the Germans  are portrayed as living at the edge of the liveable world, in this case surrounded by forests and swamps with no gold or metal and little in the way of farming. The lack of gold and silver marks the Germans as mere barbarians, but also makes them free of the corruption the Romans had suffered. Tacitus discusses the political situation of the Germans as variable as they are divided between many tribes, but generally they have a strong monarchy or a monarch who appears to largely exist to lead in war rather than dominate the society. The latter kind of monarch tends to rule through freedmen according to Tacitus, so duplicating the tendency of Roman emperors to keep political power way from those who fit to exercise liberty and leave it to the slavish in nature.

The Germans are portrayed as brave but with reference to family and immediate community, who are all present in battle (including the women) rather than to the state, or ‘public thing’, ‘res publica’, which is how Romans understood their own state at any time, republican strictly speaking, or imperial in forms. Again Tacitus shows a mixture of contempt for the backwardness of it, and admiration for the so fat uncorrupted bravery on behalf of the little world of everyday life. The emotional passion of the Germans is also admired, but regarded as inferior overall to the discipline and self-control of a proper Roman aristocrat like Agricola. Significantly, Tacitus thinks the kind of Stoic self-control and extreme rationality, discussed from the political point of view in an earlier post on Seneca, is going too far. Despite the influence of Stoic thinking on the Roman upper class and Seneca’s association with resistance to evil emperors, Tacitus wants some passion leftover from the barbarian mentality, as part of the makeup of the Roman ruling class. Their liberty requires passion as well as self-restraint.

As indicated at the beginning, over time there is some convergence between Tacitus’ respect for barbarian liberty and Xenophon’s interest in good kingship in a ‘barbarian’ as in non-Greek, though not as in backward, state, that is the Persian Empire. This is the outcome of the Medieval dominance of monarchy as a political form in western and central Europe, combined with increasing knowledge of ancient republican ideals as knowledge of Latin increases in the Middle Ages, followed by increasing knowledge of Greek in the Renaissance. The social and political structure of Medieval states, in which there are still some city republics, where monarchies allow self-government to city merchants, and find it necessary to consult estates, or assemblies, of nobles, clergy and merchants, the cult of aristocratic-knightly prowess in war, independence of barons from kings, all suggest ways in which European monarchs, aristocrats, and intellectuals pick up on republican ideas and apply them to a monarchy.

Enlightenment ideas of liberty themselves dealt with the tension and combination of Roman order and barbarian spirit. The most sustained attempt to turn this into a philosophy of history, state, and law, can be found in Montesquieu’s Spirit of the Laws, which emphasises that the Roman Empire in the west was overwhelmed by Germanic tribes and succeeded by Germanic kings, with particular emphasis on France. Early Frankish-German kings and aristocrats brought Germanic laws and customs to Roman Gaul, but some elements of Roman law survived particularly in the church. The Roman law was fully revived in the thirteenth century in a process strongly established with the growing power of the French monarchy and the emergence of a French nation. So for Montesquieu, the French monarchy of his time rested on a mix of Germanic liberty, which was primitive republican in origin, given the limited role of early German kings, under a monarchy and aristocracy that was Germanic and origin, and in which Roman law provided an ordered structure for liberty. The Roman component, like the Germanic component, was republican in origin. Montesquieu himself is taken in both republican and monarchist ways, and he was looking at how the two come together in complex interactions in European history to create liberty with increasing commerce and moral sensitivity, under law, as he knew it. Adam Smith was also very sensitive to this historical  complexity of law and liberty, looking back to both the Graeco-Roman and barbarian republics with various mixtures of admiration and concern. He was certainly aware of the Tacitus style of neo-repubican contempt for those supposed unworthy of liberty and feared that modern republics might engage in the same polarisation between full citizens and the excluded.

Against Imperial Nostalgia: Or why Empires are Kaka

I write in response to Fred Folvary’s post on this site, “Restore the Turkish Empire!” Living as I do in the largest city the Republic of Turkey, Istanbul which is its commercial and cultural centre, with a formidable concentration of universities (explaining my presence here), it made an impact, but of the most irritating kind I have to say. To say the least I find it bracing to find the foundation of the state where I live rejected, since I believe the foundation of that republic was a positive event in twentieth century, which in its vices has been mo worse than the Ottoman Empire and in its virtues considerably superior, even if much needs to be done by way of securing liberty here.

I will expand on the Ottoman Empire to Republic of Turkey transition and then move onto the other object of Fred’s nostalgia, the Habsburg Empire and an explanation of the Kaka (not a typo for Kafka, but a literary allusion) reference in the title. A belief that the Ottoman state (the Turkish word for ‘empire'; ‘Imparatorluk’ is imported, evidently coming from the Latin word for military chief which became associated with the rulers of Rome after Caesar) was better for liberty than the Republic has been expressed  by a few scholars over here, most notably Mustafa Akyol, author of Islam without Extremes: A Muslim Case for Liberty.

Akyol’s credibility on these matters was increasingly compromised though by his loyalty to the AKP government of Recep Tayyıp Erdoğan, now President of Turkey after 12 years as Prime Minister. The AKP  had some support from secular, and mildly religious, liberty advocates (not including me though) when it came to power in 2002 in the belief that a religious based political party would correct the authoritarian aspects of secularism in Turkey. By the time the Gezi Park protests started in 2013, that kind of support was largely eroded by the evident determination of the AKP to concentrate economic and political power in the hands of a new religious conservative elite, which was no less authoritarian than its secular predecessors (which anyway often flirted with religious conservatism) and had built up more power than any government since the end of the one party system in the late 1940s.

Akyol was a hold out, providing apparently liberal intellectual credibility for the AKP for an international audience, as he writes in English and sometimes speaks at international pro-liberty events. Akyol initially condemned the Gezi activists for peaceful resistance, this neo-Ottoman liberal undermining his credibility by showing he did not understand the place of non-violent civil disobedience in the liberty tradition, certainly suggesting to me that his view of ‘liberty’ was excessively tied to deference to traditional authority. He did, however, come to see that something was wrong with the AKP government, announcing that the problems would be resolved in a forum for AKP intellectuals. He was to learn the hard way that the AKP cared nothing for its remnant liberal intellectuals and did finally recognise that the AKP is a corrupt authoritarian nightmare.

That’s the story of one individual, but it illustrates the dangers of any kind of liberty thought defined with reference to  traditional   sources of authority, and indeed nostalgia for lost authority. Such dangers are why I do not support, at all, the most conservative aspects of liberty advocacy, that is any tendency to think aristocratic and religious sources of authority in the past provide some model for contesting the expansion and intrusion of the administrative state in the modern world.

Returning to the Ottoman case, the Akyol style preference for Ottomanism over republicanism is linked to objections to the centralising nationalist statist tendencies of the early Republican governments under Kemal Atatürk and then İsmet İnönü.

The process starts with the revolt of Turkish nationalists and various local interests against the occupation and proposed partition of the Ottoman Empire after World War One. An Ottoman general with republican and nationalist leanings, Mustafa Kemal (later adopting the surname Atatürk, which was his only surname since he received that name as a part of a law establishing surnames for Muslims for the first time in 1934) was able to leave occupied Istanbul, where the residual Ottoman government was collaborating with the occupying powers, for eastern Anatolia, becoming the political and military leader of the forces of the National Pact and first National Assembly, against the occupying powers and a Greek invasion of Anatolia.

The Ottoman government simply had no meaningful power base independent of Britain and the other occupying powers, and was swept away from Mustafa Kemal’s forces defeated those countries that the Sultan was unwilling or unable to resist in their ambitions to turn the Ottoman Empire into some mere central Anatolian sultanate.

The victory of the National forces was a very bloody matter, with ethnic violence deeply rooted in the long breakup of the Ottoman Empire on all sides. Anyway, it was the first major victory against the Imperial powers of the time, who had steadily eroded Ottoman territories and Ottoman sovereignty over what remained. The Turkish national movement received support from Muslims in southern Asia, living under British rule, and its success was noted by the Hindu population as well. It was part of the process behind the independence of India at the end of 1947, which was the beginning of the end for the injustice of European colonialism.

In power the nationalist-republicans under Mustafa Kemal abolished the sultanate and then the caliphate (the residual and never fully effective claim of the Ottoman dynasty to provide the leader of world Islam). Public segregation of the sexes was ended, women received the vote, religion was removed from political life, education became secular, legal codes were imported from the west, the official language was reformed to make it closer to colloquial Turkish and less of an elite literary-bureaucratic language, the economic policies were statist, but not socialist and private capital and a new Muslim entrepreneurial class did develop. The politics and methods were authoritarian and considerable state violence was directed against those not adapting to the state program.

However, much of what was achieved was what one would for from a liberty standpoint if not the methods, and the worst aspects of what happened had already taken place under the Ottoman state, particularly Sultan Abdul Hamid II (ruling from 1876 to 1909) who destroyed an Ottoman constitution, began the intense persecution of Armenians, and constructed a more centralised bureaucratised form of government. So we cannot say that the Ottoman system in the period for which we can make meaningful comparisons with republican national governments was any better from a pro-liberty point of view than the early Turkish republic.

Abdul Hamit lost power in 1909 to a movement that was constitutional and pluralist at first, but turned into the domination of the Committee of Union and Progress under a three-man collective dictatorship. The trio and various CUP thinkers were influenced by republican and nationalist thought, but also by Ottomanist and Islamist identity, so really mixed everything until it could become clear what the fate of the Empire was to be.

Persecution of the Armenians continued and increasingly there was persecution  of Arabs, particularly in the province of Syria, so that any idea of an Ottoman Empire that could contain either substantial Christian or Arab populations was eroding though not as part of a preconceived plan, but because the ways that Ottoman power operated and reacted to opposing forces were already pushing in the direction of a centralised state dominated by the Turks of Anatolia.  This all culminated in the 1915 deportations and massacres of Armenians, in which 1 500 000 Armenian subjects of the Sultan lost their lives, accompanied by high levels of state violence against an Arab population ready to listen to what turned out to dishonest promises from the colonial European powers.

I hope that the above shows that the idea of rescuing to the Ottoman Empire, even as a confederation on liberal grounds, was a complete irrelevance at the end of World War One and any attempt to have imposed such a thing would have ended in a  mixture of political farce and mass killing as unwilling millions found themselves herded into a state system no one had wanted. The Ottoman Empire would have had to start liberalising and democratising in the eighteenth century before modern nationalism became a force for it to have had any hope at all of surviving as a multi-national confederation into out time.

1919 was far, far too late to hope the ethnic nationalism would be replaced by co-operation through liberal democracy and that the remaining Ottoman Empire could emulate Switzerland, which emerged as confederation of self-governing cantons in the middle ages. Whatever else might be said about Atatürk, and certainly there are criticisms to be made, his leadership and the memory of it, founded and stabilised an independent state of laws with a modernising ideology, which used authoritarian means, but was willing to democratise.

Atatürk’s friend and successor İsmet İnönü accepted a multi-party system and his own ejection from power in a process of  the late forties culminating in the elections of 1950, with Turkey emerging as the main democratic moderate Muslim power and an important ally of the western democracies against Soviet totalitiarianism.

Whatever can be said about Atarürk the statism, including violence, of his time, was not extreme compared with a Europe increasingly full of dictators, running nationalist, corporatist, fascist, national socialist, and Bolshevik regimes, and neither was the violence extreme compared with that exercised by the leading liberal European powers of the time, France and Britain, in their colonies including mandates neighbouring Turkey.

I’ll have less detail to offer on the Habsburg Empire, but as with the Ottoman Empire, reform came far too late and far too cautiously for it to become a larger version of Switzerland. I doubt there was any chance at all given the survival of the Habsburg Empire, as the Austrian Empire, after Napoleon destroyed the Holy Roman Empire (the de facto German confederation loosely under the leadership of the Habsburgs who had their real power in hereditary territories of central Europe), since the old power structures remained with no question of federalisation, confederalisation, or cantonisation, or any movement for any such thing from anyone. The last vestiges of a chance were certainly destroyed in 1848 when Austria acted as the central force in the destruction of constitutional and national movements in the Spring Time of the Peoples in that year. Bright spring turned into a terrible winter as the Habsburg forces destroyed new constitutions in Italy, crushed resistance to its own rule in Italy, and crushed Hungarian revolutionaries, along with Austrian liberals.

In 1867, the Habsbugs did see the necessity for compromise with Hungary, by which time it had already lost territory in Italy and used particularly appalling violence in what is now Ukraine against a a reformist and insurgent aristocracy. The Habsburg state became a dual monarchy (building on the dynasty’s titles which included King of Hungary as well as Emperor of Austria), so Hungary received its own assembly, and was at least formally an equal parter in the old state with Austria. Croatia also had autonomy and the title of King of Bohemia was newly emphasised to satisfy Czech sensibilities, but all too little to late. Since Vienna believed Budapest wished to secede and could not be trusted with its own strong army, there was very weak Habsburg army in Hungary by the time of World War One. So the Habsburg state could not even allow half the country to have a meaningful army.

So World War One? How did that start? Well first a Bosnian Serb believer in south Slav unity assassinated the heir to the dual monarchy, then the Emperor-King’s government decided to make demands that would destroy Serbian independence. It is true that Pirincep’s group the Black Hand was manipulated by the chief of military intelligence in Belgrade who ran a secret deep state in parallel with, but outside the control of, the legal government. That legal government did accede to just about all the Habsburg demands, asking for delay on just one question. In fact the government and general staff in Vienna wanted to invade Serbia anyway, did so, sparking a predictable reaction from Russia, sparking a further predictable reaction from Germany, which activated plans to invade France and Belgium with well-known results.

Now the Habsburgs were not solely responsible for the four-year catastrophe, but we could not have done it over here in Europe without the blundering irresponsible aggression of a government, which was afraid to allow a decent army to exist in half of its own land, but still invited war with Russia! A state bursting at the seams with nationalist demands, almost impossible to reconcile, and which the state had no means to deal with except to play one group off against another in the hope of better times. The assassinated heir, Archduke Franz Ferdinand, did have a plan for some form of federalisation, but even had he lived to implement it, the state would have broken up and violent as secessionist nationalities fought against what they believed was a Habsburg prison-house of the nations and against each other.

Of course the claim that the Habsburg Empire was breaking up violently one way or the other, whatever the Emperor-King’s government did is a hypothetical. I suggest that at any rate it is a far more plausible and modest hypothetical than Fred’s belief that the victorious powers of World War One should have patched up the Empire and helped it along.

How?

The state was disintregrating in 1918 as Italian forces invested Habsburg lands. It is not a hypothetical to say that the nationalities under the Habsburgs would no longer fight for the old Empire, it is what happened.

And how were Britain, France, Italy, and America to hold together an empire n central Europe which started the war with mobilisation against Serbia, which was an ally of Britain and France?

Were Serbia and Italy going to add to considerable preceding sacrifices  by going to war to protect the Habsburgs from rebellious nations?

Were France and Britain going to add to a desperate four years of mass bloodshed by launching a war to protect an enemy power from people who wished to break away from it?

These are all preposterous ideas, and there is no remotely plausible idea for preserving the Habsburg Empire in 1918-1919. Those with a taste for comforting counterfactual history would do better to dream of a Habsburg confederation developing centuries before. That Empire was ready to collapse like a rotten old house in 1914 under any major impact with large force, never mind 1919.

And Kaka? That is the source of the name bestowed on the Dual Monarchy by one of the great Viennese writers, one of the great twentieth century writers, Robert Musil who died in 1942 as the author or the unfinished masterpiece The Man Without Qualities, one of the major literary achievements of the last century. He refers to the dying Habsburg Empire’s designation of ‘Kaiserlich und Königlich’, that is to say Imperial and Kingly, frequently shortened to K.K., which when spoken sound like ‘Kaka’, a childish word for faeces, something like poo poo in English. Inevitably this led to references to the Empire as ‘Kakanien’, Kakania, something like Crap Land. This bit of politically charged silliness became known to readers of modernist classics of literature, because Musil plays on it.

So the Ottoman and Habsburg empires, both Kakania, both rotten old state structures ready to collapse as they had proved unable to adapt to nationalist and centrifugal movements in a timely and effective manner for over a century. That a confederation under a residual  monarch would have been better than violent nationalist disintegration is beyond doubt, however, there is no possible way in which those empires were going to exist beyond a core national territory (Turkey and Austria respectively) after World War One, and the collapse of legitimacy in that core territory was anyway final due to military defeat, so that we cannot even begin to discuss in any way that is at all realistic how they could have survived as the unifying factor in large complex confederations of many nationalities, languages,and religions. They were just both Kakania.

Why not world government? Part 2

In Part 1 we gave a general definition to what world government, or ‘monopolis’ as I’ve suggested, was. Key to our definition was that a monopolis was neither inherently libertarian nor anti-libertarian. Some readers might scratch their heads and wonder if such a vague definition is of any helpful. After all if a standard dictionary were written in similar vague terms we would have entries that read like:

Broccoli: noun. A vegetable that can taste nasty except when it doesn’t.

Nonetheless I argue that my definition of monopolis is invaluable in that it clarifies that whether a world government is desirable or not depends on the details. This is an advancement over the extreme positions that world government, or any other ‘large’ government, is inherently bad or good in that it allows us to attempt to reach a middle ground. In other words the size of government has a bell-shaped curve relationship in terms of efficiency. Larger governments benefit from returns to scale, but there is a point where these returns to scale become decreasing or even negative. The ideal size of government is at the middle point – but it is unclear where exactly that middle point is.

Federal government.
What is the optimum level of federal government?

At heart I am an anarchist and would prefer a world composed of countless city-states that freely traded with one another. One would still be part of a government, but which government you were part of would be no more important than what baseball team you rooted for. If possible I’d do away with the city-states as well and allow individuals to contract with one another directly but alas we have not yet reached the conditions necessary for that!

Even in my anarchist utopia though there would be the need for a federal government that promoted inter-city trade. Without a strong federal government local states could easily erect trade barriers to protect themselves from outside competition. A federal government’s chief benefit would be in that it would act to reduce transaction costs between member-states.

At the same time there would be a cost to introducing a federal government in my anarchist utopia. A federal government strong enough to defy member-states can use the same power to give itself more duties. Indeed, the individuals who compose federal governments have strong personal incentives to grant themselves further powers. How else can the growth of the United States federal government be explained? At its inception the United States was little more than a trade and common defense pact – it didn’t even have the power to levy taxes and had to request funds from the constituent states. Compare that to today’s US federal government, whose tentacles can be found in almost every aspect of life.

Federal governments do nonetheless face internal and external constraints to what they can do. Federal governments have the ability to defy individual member-states, but they have less ability to confront several local elites at once. Take for example the Real ID act; passed in the early 2000s the Real ID act would have created a de facto national ID in the United States but it has thus far been stalled due to the opposition of several state governments. Externally federal governments are also constrained by competing federal governments. The United States federal government cannot devote itself entirely to dominating its constituent member-states, it must also pay attention to the actions of Russia, China, India, and other rival powers.

It is due to the latter reason that I do not favor world government; I fear that in the absence of competing federal powers the remaining federal government would be able to devote itself to centralizing power away from local elites.
I concede that there are two scenarios where my concerns would be lessened.

  1. In the first scenario the constituent member-states are strong enough that a small fraction of them can restrain the actions of the federal government. This would require a few member-states to be both significantly larger than the other constituent member-states and to have conflicting views on public policy than the federal government. A world federal government would need a ‘California’ or ‘Texas’ if you would.California and Texas could both become independent nations and safely be great powers. This position has allowed them to defy the federal government on several occasions as there is an implicit understanding that they could secure their independence if their long run interests differ sharply from the United States’ interests. Brandon Christensen has often pointed out the importance of allowing member-states to secede from their federations, and here I agree fully with him.

    The existence of a ‘California’ or ‘Texas’ is tricky though. Member-states will only stay in a federal government if they benefit from doing so and there are several scenarios where a member-state like ‘California’ might actually secede. Secession, done rightly, could induce the federal government to seek compromise or internal reform. Or it might attack ‘California’ and assert that secession is illegitimate. Peaceful secession, such as the break up of Czechoslovakia, is certainly possible but they are rare.

  2. The second scenario would be one where the federal government was constrained by its future self. Let us posit a monopolis, a world government, that was secure in its rule. Would the rulers of such a monopolis set tax rates at 100%? Not if they were concerned about future revenues. A monopolis would likely prefer to smooth its consumption over time and to do this it would have to find a tax rate that did not hinder future economic productivity of its citizenry too much. This scenario however would only arise if the ruling elite at the top of the monopolis governing structure were assured that they and their descendants would continue to be ruling elites for the foreseeable future. A monopolis would have to be a monarchy in essence.

In summary, a monopolis would be desirable if the details were properly adjusted to avoid reaching decreasing or negative returns to scale in efficiency. A monopolis would have to face constraints of some sort, which in the absence of external competitors would have to be either strong member-states that could achieve independence if desired and/or a ruling elite that was strong enough that it had no serious concerns about being overthrown. If these conditions could be met then a monopolis would be well worth it.

I for one am skeptical about our ability to achieve these prerequisites, but the argument is no longer a theoretical one. The question of whether a world government is desirable has become an empirical question as we need to find some way of measuring the likelihood of achieving the above mentioned perquisites.

Thoughts? Comments? Disagreements? Comment below.

From the Comments: The medieval Dark Ages were indeed dark

Dr Stocker answers my question about non-European canons of liberty:

Hello Brandon, sorry I didn’t have time to check the comments on this earlier. I don’t really want to say there was a 1000 year dark age for thought about liberty, but in terms of big recognised classics, it does look like a ‘Dark Age’.

Sadly I’m not equipped to discuss what was going on outside ‘Christendom’, the Medieval Christian world which largely corresponded with Europe particularly after the Arab (and in the west Berber) Muslim conquests in north Africa and south west Asia, so in what had been the Byzantine Empire outside its Balkan and Anatolian heartland.

I’m very slightly better qualified to discuss the Muslim world of this time than the cultures further east, and as far as I can see despite the riches of Muslim intellectual achievement, and the building of legal traditions, there is no major figure who could be described as pro-liberty though as with Aquinas, William of Ockam and other major political writers in Christendom of the time, there is an interest in law and respect for law from the sovereign power. I personally feel it’s a bit of a stretch to include that in any kind of liberty tradition, though the rule of law ideas to feed into it and to some degree pick up on antique republican thought, but largely in its empire of laws aspect rather than other aspects of political and social liberty.

There is a lot of really important and interesting stuff going on further east, particularly in China and India, going back to at least the time of Aristotle in Greece, in terms of philosophical, ethical, and political thought, and institutional innovation. On the institutional side though, I can’t see anything that looks very ‘republican’ or holding power accountable, or valuing challenges to excessive power. I’m sure there are texts that are important for liberty minded people to read, and some things some absolute rulers did like Buddhists who tried to abolish slavery, worth knowing about, but I’m just not competent right now to deal with this stuff properly. It is becoming better known in the west and that is going to produce results in the liberty community. I’ll see if I’m ever ready to engage, I’ve got some iras about how to get there from particular interests of mine, but it needs time.

In discussing Asian political traditions, one issue which is being discussed a lot is state hill communities in southern Asia, though from a collectivist anarchist position rather than an individualist anarchist position, the discussion has been picked up to some degree from an individualist point of view (Peter Leeson, the George Mason economist for example) and I think we’ll see more of that over time. That issue of hill peoples brings me onto something else.

Knowledge of the political structures of hill peoples comes from anthropologists (particularly the Yale anthropologist and agrarian studies specialist James C. Scott, a collectivist anarchist in inclination) rather than from texts in political theory by those stateless peoples. They were illiterate and maybe deliberately so to protect themselves from the low land state observations. Any political philosophy (or indeed philosophy of any kind) of such people comes from looking at the assumptions and everyday ‘ideologies’ of their lives. A big thing on that issue which has been getting increasing interest is that until the late 18th century European histories of philosophy included that kind of implicit philosophy of illiterate peoples observed in an ‘anthropological’ way by ancient historians like Tacitus and Herodotus. There has been a modern equivalent, roughly speaking, to that Herodotus/Tacitus observation of the supposed beliefs of peoples who seem very foreign, which is African philosophy, as studied by African scholars and outside Africa, largely by African-American scholars in US universities. This has engaged with an anthropological-philosophical study of the belief systems of colonised and pre-colonial African peoples.

There is a scholar known to me by personal acquaintance as well as academic reputation working on that sort of approach to non-literarate or not very literate non-urban societies round the world. That is Justin E.H. Smith a (white) American based at the University of Paris, who has a book due out on this in a few years, I’m certainly looking forward to it. That leads me to your point about ideology.

I agree that there is a valid area of study of philosophy, political throughout etc as it exists outside ‘ideology’ as written texts on those theme. It may have some relation to ‘ideology’ as everyday assumptions, though with less of the control/conformity associations of ‘ideology’. I am not on the whole the right person to say much about this, but over time I might be able to post a few things. I’m thinking of taking a step in that direction for next week’s post, which I’m thinking could be on the Medieval Iceland Eddas (heroic poetry) as it relates to a society, which apparently had very little in the way of a central state. That will mean breaking the timeline I’m working through, but that’s OK as I now realise I meant to cover the Roman historian Tacitus, but forgot, so next couple of posts will probably go back in history. Just working on a post on a 14th century English legal thinker, John Fortescue, for this weekend.

You can all read Dr Stocker’s promised Fortescue post here if you haven’t already (it’s excellent, of course). I have been interested in liberty from a non-European point of view ever since I first became interested in liberty (2008, thanks to Ron Paul’s presidential run, and I have always been interested in non-European cultures). A part of me wants to believe that there is an unwritten code of liberty to be found within all societies, and I think that there is a case to be made for this, if you look closely enough.

However, I was doing a search for liberal political parties throughout the world (liberal means libertarian!) and I was genuinely shocked at how few liberal parties there are outside of continental Europe and the Anglo-Saxon world. Even Latin America, long the West’s red-headed stepchild, has a dearth of liberal political parties.

Most parties in the non-European world are based around ethnicity, nationality, or socialism. The fact that socialism is ambiguous enough that it can allow for a narrative that incorporates ethnicity or nationality into its premise probably accounts for the popularity of these political parties. (So, for example, a political party that serves the interests of an ethnic group in a post-colonial state will often name itself the “National Party of Post-Colony,” or the “People’s Party of Post-Colony.”) This is still a disheartening trend, though. In the US, both major political parties are essentially liberal, and in continental Europe most of the political parties are liberal in fact if not in name.

I note here that factions and not parties are ultimately what drives drives politics, but the lack of liberal political parties can still us something about a society’s cultural mores.

For some reason this superficial political observation, coupled with Barry’s astute thoughts, reminds of this old post by Jacques on knowledge, language, and information.

The 100th Anniversary of the Defeat of Economic Land

The year 2014 is the 100th anniversary of an economics article that was the final nail in the coffin of classical economics, as it marked the victory of the neoclassical economics war against land. This was a victory so great that economists today do not even realize that there had been such an academic war.

Alvin Saunders Johnson (1874-1971) was an American economist at several universities, including Columbia, the University of Chicago, and Cornell. He was a co-founder of the New School at New York City. In 1902 he wrote “Rent in Modern Economic Theory: An Essay in Distribution.” Johnson, along with other economists who were turning the classical theories of the 1800s into the neoclassical doctrines of the 1900s, generalized “rent,” from the yield of land, into any surplus above opportunity cost, i.e. above the cost needed to put a resource to its most productive use. For example, a movie star paid $1 million to act in a movie, whose next best opportunity is being a salesman earning $100,000, has an economic rent of $900,000.

In 1914, Johnson published “The Case against the Single Tax” in The Atlantic Monthly. As has been well explained by Prof. Mason Gaffney in The Corruption of Economics, Johnson played a major role in suppressing, by falsification, the land-tax ideas of Henry George. Land is now visible everywhere except in academic economics. For example, the generation of land value by public goods is not even mentioned in the general textbooks.

Johnson correctly stated that a tax on the entire rent of land would bring the purchase price down to zero, but he expressed it as: “the value kernel of landed property will have been seized by the state.” In policy analysis, we need to examine inflammatory vocabulary. The moral case for land-value taxation rests in the proposition that the benefits of nature belong to all humanity equally, that the creation of local land values by population and commerce belongs in equal shares to the members of those communities, and that the rentals generated by public works may be used to pay the providers, whether this be private-sector or government providers. None of this is confiscation or seizing by the state.

In Georgist ethics, the people own the rent, not the chiefs of state. A government may justly act as the agent of the people to protect their property, such as the atmosphere, from damage, and a government may, as the agent of the people, collect the rent to distribute it among them, or to use to pay for public goods. The premise that the rent belongs to the people implies that the rent is not being seized from the landowners as though these title holders are the morally legitimate owners, but rather that the state is facilitating the collection of the rent to the proper owners, the people. Hence the terminology used by Johnson taints his analysis and begs the question of the proper ownership of land rent.

Johnson continues his attack by calling the single tax on land value “propaganda for the universal confiscation of land.” Henry George had unfortunately stated in Progress and Poverty that “It is not necessary to confiscate land; it is only necessary to confiscate rent.” The Latin origin of “confiscate” is “confiscare,” from “fiscus” meaning the government’s treasury. Fiscal policy is about governmental revenue and spending. Thus in linguistic origin, to confiscate means simply to tax, to transfer assets to the public treasury. But in modern popular usage, to “confiscate” means to take by force, with the implication that the state is seizing property that was legitimately owned. And despite George’s statement that it is only the rent, not the land itself, that is being “confiscated,” Johnson attacks the single tax as confiscating the land.

Moreover, by dismissing the theory behind the single tax as “propaganda,” Johnson denigrated the logic and evidence for land-value taxation in an anti-scholarly manner, and thus he himself indulged in propaganda.

Johnson’s mixing up the ownership of land and of its rent is also shown by his statement that if all the value of land is taxed, the revenue would cover the costs of government, “provided, of course, that the public can manage the lands as efficiently as they are now managed by their private owners.” This despite the statement of George that “I do not propose either to purchase or to confiscate private property in land.” Land-value taxation would not disturb private titles; it would not alter private control and possession. The government would not “manage the lands.”

Johnson states that much of the financial wealth of the middle class is in land value, and that the full taxation of land value would take more value from them than they would regain in the removal of other taxes. Of course in 1914, the 16th Amendment had just been enacted in 1913, and the middle class did not yet suffer from the income tax.

Nevertheless, Johnson’s statement is illogical. Suppose the total land rent is $1 trillion, and the cost of government is half of that; then the rent does not disappear, but is distributed back to the people in cash. So the effect of land value taxation would be to equalize the ownership of the rent, and a person who owned an average amount of rent would get half back in cash, and half back, ideally, in valued public goods. If government is squandering some of the rent, then the remedy is to give it all back to the people. Then the average land owner is in a neutral position.

Johnson falsely declared that “The Single Tax is, then, essentially a device for the spoilation of the middle class.” One could justly say that Johnson’s malicious attack was a device for the spoilation of the remedy for poverty, depressions, and land conflicts. What has spoiled the middle class is high taxes on their wages and on the goods they buy. Johnson’s falsifications were the spoilation of a policy that could have promoted sustainable prosperity and prevented needless economic inequality. Johnson’s propaganda succeeded in helping squash land-value taxation, but to the ruin of economies worldwide.

With the neoclassical victory against land, most economists today suffer from cognitive dissonance. Even if economists reject an egalitarian view of natural resources, they know that the supply of land is inelastic, so public revenue from land rent avoids the excess burden that other taxes have. But they do not extend this knowledge to the rest of theory and to policy. Mason Gaffney calls this the “corruption of economics.” I call it “academic brain freeze.” At any rate, it is worth marking the 100th anniversary of Johnson’s attack.

Restore the Turkish Empire!

The Turkish Empire, also called the Ottoman Empire, was founded in 1299 and lasted until 1922. At the start of World War I, the Turkish Empire still included much of the Levant, including what are now Syria, Iraq, Lebanon, Jordan, Israel and Palestine, and part of Saudi Arabia. The Sultan, as the emperor, was also the head of the Caliphate, the realm of Islam.

Libertarians are generally opposed to empires. However, a great historical error was made by the victors of World War I. The chiefs of France, the United Kingdom, and the United States, broke up the Austro-Hungarian empire and the Turkish Empire. Whereas the Arabs helped the British defeat the Turks in the expectation that they would achieve independence, the British and French betrayed these hopes by making the Arab lands colonies. The British obtained Palestine, Jordan, and Iraq, while the French took Lebanon and Syria.

Under the Turkish Empire, the diverse religions of the Middle East were able to co-exist. The Empire had a policy of local self-governance under the “millet” system whereby people could use their own religious laws. The term derives from the Arabic word millah, for meaning “nation.” Because they were all under one empire, the ethnic groups such as Kurds and the religious minorities did not fight over land.

Today’s problems in the Middle East, including the Palestinian-Israeli conflict, the Syrian civil wars, the dictatorship and war in Iraq, the violence in Lebanon, and the rise of supremacists, all stem from the breakup of the Turkish Empire. That realm had its problems, including violence against Armenians and others, but most of the residents of the former Turkish areas would probably wish they had stayed in the Empire.

With the discovery and development of oil Iraq became of strategic interest. If the Turkish Empire had not been broken up then the oil would have served the Empire; and the dictatorships and tyrannies of Syria and Iraq would have been prevented. Most likely, the Turkish Empire would have been a constitutional monarchy. The retention of the Caliphate would have avoided the nostalgic yearning of Muslims for its restoration by violence.

But now, is it too late? We cannot restore broken Humpty Dumpty, can we? Maybe not, but what is the alternative? Nobody is talking about restoring the Turkish Empire, but there does not seem to be any better solution.

The restoration of the Turkish empire does seem crazy, ridiculous, and absurd. But it would unify the region. There was no Sunni-Shia war under the Turks. Christians were able to follow their faith. Jews who had lived in the region since the BC times did not have to flee.

The new Turkish Empire would include Turkey, Syria, Lebanon, Israel and Palestine, Jordan, and Iraq. Kuwait was separate from the Empire, and could join or not as it wished. The government of Turkey would start the process by sending in troops to take control of Syria and sections of Iraq. The other states would be invited to join in.

The new empire would not be called “Turkish,” although Turkey would be the major power holding it together. It could be called the Confederation of the Levant. The states of the confederation would retain their own institutions. Israelis and Palestinians would benefit by joining the new Turkish empire. Just as Muslim cities once had Jewish quarters, the Empire would regard Israel as the Jewish quarter of a Muslim empire, while Palestinian Arabs would no longer be under Israeli occupation; they would constitute a state within a Muslim Caliphate, and the Israeli settlers would recognize the Palestinian jurisdiction by paying rent.

The US is now reluctant to send in troops to pacify the Levant, and Turkey is in the best position to do so. Having become more Islamic, now is the time for it to take the next step and restore an Islamic empire with a Caliphate, but a peaceful, democratic, and tolerant one.

Just as breaking up the Austro-Hungarian Empire was a big mistake, which allowed Nazi Germany to swallow up Austria and then Czechoslovakia, so was the dismantling of the Ottoman Empire. The European Union has replaced the old European realms as it becomes a new empire of democratic states. Nothing like that is happening in the Middle East.

It’s time to talk Turkey!

Expanding the Liberty Canon: John Fortescue on the Laws and Government of England

John Fortescue (who was knighted and so is also known as Sir John Fortescue) lived from approximately from 1394  to 1480,  and so endured the Wars of the Roses, the highly destructive struggle of two families in the late Middle Ages for possession of the English crown. These wars were fictionalised and mythologised in the Shakespeare plays on Richard II, Henry IV, Henry V, Henry VI, and Richard III, so there is a perfect literary way of obtaining an introduction to the political struggles of that time, though of course that is not the same as reliable scholarly history of that period.

Fortescue was from the gentry, as the lower level of the English aristocracy are known, of southwestern England. He was therefore in a good position to follow a career as a lawyer and Member of Parliament (which in Britain refers to someone elected to the House of Commons, but not members of the House of Lords). That combination of careers is still a frequent one in Britain and I believe even more so in the United States, and is an important part of the history of the modern state and of modern politics. The relevance of Fortescue’s career to the emergence of  the modern state is enhanced when we consider that as well as those roles he was engaged in the administrative aspects of judicial-administrative inquiries, a judge, and crown minister responsible for the judiciary, that is Chancellor then the most senior office under the crown so the nearest thing to a modern Prime Minister.

He only held the latter office during the exile of Henry VI to Scotland (then a completely separate state from England), while Edward IV was the king in possession of power. In any case, we can see that Fortescue was at the centre of politics and of royal power structures. His exile with Henry VI as a result of the War of the Roses included a period in France as tutor to Henry VI’s son. On the death of Henry, Fortescue was able to return to England and made his peace with Edward, who returned confiscated properties.

There might seem to be some irony in  discussing liberty with regard to a servant of the crown at the time monarchs claimed some kind of divinely instituted power above human interference and accountability, and were busy dragging their peoples into destructive and expensive dynastic war . There are, however, various examples of liberty oriented thinkers linked with not very restrained beneficiaries of royal power. Aristotle was a tutor to Alexander the  Great, Seneca was tutor and advisor to Nero, and Marsilius of Padua was under the protection of the Emperor Ludwig. Such closeness to power may be beneficial with regard to knowledge of state power and with regard to acquiring understanding of the dangers of unlimited state of power. Later great liberty thinkers such as Montaigne and Montesquieu (to be discussed later) were both judges whose experience of interpreting and administering the law enhanced their understanding of the possible benefits and dangers of law and legal institutions for liberty.

Fortescue was approaching from a more monarchical and less republican direction than Marsilius, as his writings on law and politics are largely about the correct form of monarchy. However, the difference between the two writers and the two orientations if we address a trio of issues.

Marsilius was a dependent of the Emperor of Germany, while Fortescue held elected office. Marsilius’ understanding of law was very focused on the great codification of Roman law undertaken by the eastern Roman Emperor, Justinian, in the sixth century, while Fortescue was a defended of an English legal tradition independent of the sovereignty of princes, which Justinian made the central source of law.

The thinking of servants of the crown, even of princes themselves, in England, and across Catholic Latin (for the purposes of state, church, and scholarly business) was deeply conditioned by the republicanism of Cicero, which educated people could and did read in the original language, since Cicero was central to the Latin curriculum,  and the republicanism of Aristotle, widely known through Latin translations and commentaries.

It should be noted that England had a monarchy, a Senate (known as the House of Lords), and an assembly representing the ‘common’ (in practice gentry, local notables, and  merchants) people. Cicero’s Roman model had annual consuls in the place of a king, and an assembly of all citizens’ rather than an elected body for them, but the triad in England was that recommend by Cicero, even if existed for reasons other than enthusiasm for Roman republicanism. Other European monarchies had similar ‘estates’ which they felt obliged to consult at least on occasion, in Fortescue’s time.

A useful, if crude, generalisation about modern liberty tendencies is that they come out of two streams: a monarchist stream which emphasises that princes should act under the law and with other political institutions; a republican stream in which the ‘people’ institutes laws and governments in a spirit of respect for customary laws and institutions. These streams often become one river, but we can sometimes see them separate out and it is useful, at least some of the time, to think about the difference.

Fortescue’s work in administration, government and direct service of the royal family, refers to an aspect of the emergent modern state other than the role of law and of representative institutions.  The modern state is one of administrative growth and has been ever since the consolidation of monarchical power over barons and over dispersed agents of power during the Middle Ages.

It is hard to say when exactly it began, but the Norman Conquest of England in 1066 is as good a starting point as any, allowing as it did for the enhancement of royal state powers through eradication of the Anglo-Saxon elite and many associated institutions, proving a model of modern monarchy. The thirteenth century revival of the study and application of  Roman law, as codified under Justinian, is maybe  the best known way in which that growth of a centralised monarchical administration expressed itself. Fortescue’s crossing over between private legal, parliamentary, administrative, judicial and political roles itself expresses the way that the judicial-legal aspect of the state was often at the heart of regularising the increase of administrative machinery as well as political sovereignty.

The issue  of growing ‘Roman’ law is the appropriate point at which to bring in some consideration of Fortescue’s most influential texts: In Praise of the Laws of England and The Governance of England. In these texts, Fortescue is very  critical of what he calls ‘civil law’, which is a standard way, then and now, of referring to the Roman law tradition, containing the assumption of law made by the supreme civil political institution. His understanding of Civil Law comes directly from the texts that were produced during the Justinian directed codification, which is correct in terms of origins and the scholarly approach to civil law at that time, but maybe gives a distorting view of a legal approach which has evolved over time in a  multiplicity of codes round the world.

What Fortescue opposes to civil law is the law of England, which is now generally known as common law. Common law refers to the role of judicial precedence in English courts, where preceding judgements, and the judge’s understanding of natural justice, along with role of a jury of citizens in reaching a verdict are distinct features. Judges in the civil law tradition are comparatively concerned with the meaning of statues rather than preceding judgements, and verdicts are given by judges rather than juries.

In Fortescue’s understanding earlier English kings (going back to the time of Norman kings and Francophone Angevin kings with more land in western France than England) tried to impose civil law, but failed. This is a bit one-sided since the law of England, or common law, as Fortescue knew it, was rooted in Norman impositions and Angevin codification of the various laws of the different parts of England, but does refer to a reality of a greater role for juries and judicial precedent than in civil law systems.

The laws of England, in Fortescue’s account, are what gives content to a  political state alongside the royal state. This is a distinction that Fortescue attributes to Aquinas (so a philosopher from civil law Italy) and which has clear roots in antique republicanism. The political state refers to the laws that do not come from royal edict, or which at least were passed by parliament as laws rather than just remaining commands from the king, and the institutions which have some basis in the nation rather than the designs of the monarchy alone.

Fortescue’s historical explication of the origin of the English political state is highly mythologised, as he claims it comes from the Trojan prince Brutus. This comes from the twelfth century ‘historical’ writing of Geoffrey of Monmouth, which is largely myths about King Arthur, the Trojan origins of England, and the like. The belief that a Trojan prince founded England goes back to the antique Roman claim to be descended from refugees from the fall of Troy (as described by Homer) under Prince Aeneas (as described by Virgil). Medieval and early modern monarchies all thought of their sovereignty as modelled on Rome under Julius Caesar and Augustus, so welcomed localised versions of the mythical Trojan prince founder.

For Fortescue, the Brutus myth shows the English nation to have been a voluntary political creation with a monarchy existing by popular consent (so in a republican kind of way, though Fortescue does not say so).  The evolution of the law of England or common law over time, interrupted and transformed by political traumas, almost requires a foundational myth to give it some underlying legitimacy, given there was never a moment of collective political will to adopt it. It can also be argued that the non-political, relatively non state centric evolution  of law is good for liberty, a liberty defined in a rather indirect tacit way from the movement of parliamentary laws, verdicts of juries, and judicial interpretations.

Fortescue’s portrait of the advantages of the law of England over civil law leads him to a highly coloured picture of France as containing a common people on the verge of destruction from poverty and lack of self-respect as a consequence of the unrestrained power of the king in a civil law system. Some of his negative portrayals have some truth in them, but France did not collapse from destitution and demoralisation as Fortescue’s description would lead you to expect.

While French kings were less influenced by the Estates General than English kings were influenced by parliament, aristocratic judges in local courts known as ‘parlements’ exercised the right to resist and protest with regard to royal edicts they did not like. France was rather less centralised and uniform than England in its administration and laws right up to the  French Revolution, even under monarchs who claimed absolute powers ordained by God and did their best to erode local privileges and liberties.

The projection  of bad things onto France, presumably at least in part so as to condemn royal abuse of power without appearing to criticise the English crown, extends to Fortescue’s condemnation  of judicial torture, though even in his own account it can be seen that extreme torture was used in England to extract false confessions and accusations as part of a judicial process. Anyway, certainly Fortescue’s condemnation of such practices is very admirable and ahead of his time, as it was then widely assumed that torture was a good way of getting at the truth, for the purpose of a trial, and was not to be considered disturbing. Fortescue was disturbed and did believe that it was against humanity to use torture, as well as being ineffective from the point of view of determining guilt in a reliable manner.  Fortescue greatly helped further the cause of liberty in this and other ways.