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.

From the Comments: Organizational Ecology, François Nielsen, and the Lack of Diversity in Higher Education

Jacques elaborates on my observations about the lack of diversity in the social sciences and humanities:

One small comment. You said “left wing thought.” It was true when I began my career in the 70s. I have seen the “thought” part perish in my lifetime. They are now simply a bastion of leftism with almost no thought at all but just tedious repetitiousness. Thought does not normally flourish in the midst of consensus. My friend Dr François Nielsen at U of North Carolina wrote some vigorous things on the subject. (He was trained in the same program as Dr Amburgey and myself.)

I asked Jacques for some sources, and he provided a couple (a pdf here and a short video here). The “same program” Jacques is writing of was Stanford’s sociology department back in the late 60s and early 70s, when Organizational Ecology was prominent (I’ll leave it up to Delacroix and Amburgey to elaborate on the details).

Speaking of diversity, Amburgey disagrees with Delacroix’s (and my) assessment. He thinks the lack of diversity has to do with the rise of STEM. The entire ‘comments’ thread is well worth reading through.

Capitalism for the Intelligent Ignorant – Just a Detour Through Money

Originally posted on FACTS MATTER:

I was hoping to go straight to Part Two of my essay on capitalism. It will be about the actors of capitalism. An alert reader, Jim N, stopped me dead in my tracks by questioning what I said about the gold standard. I had only mentioned this topic in connection with the single main constraint on capitalism today, the fact that government agencies get to decide how much money flows into the economy. So, here we go, here is a digression on money made necessary by an attentive reader. He uses the word “currency” in his comment. I will use the more familiar word “money” because I think it means exactly the same thing for our superficial purposes

Money is anything that can be used to store value. Suppose you bring a chicken to the local market to sell it. In a non-money economy, if there…

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Sanctions, restrictions and other “accumulations of peace”

Hello there. Long time no blog. I hadn’t enough time and there were a lot of work. From now on I will write in english. As you know, english is not my native language, so I expect a lot of mistakes: please reload your facepalms. By the way, it’s not a point of discussion. I do my best – keep in mind that I live in Russia and I don’t have very special abilities in your-language-speaking. Anyway, I hope that you will understand “main course” of every single post that I’ll write. So.

There are a lot of new restrictions from Happy West now: individual sanctions, military and trading restrictions. Many people think that Russia is “main problem” in Ukrainian issue. I don’t want to argue, because The Great Machine Of Propaganda works well – you have your own position, and I have mine. Every single toaster and fridge in Russia (rest of the world) scream that we not using military force in Ukraine (that Empire Of Evil Soviets trying to conqueer our asses, so behold!!!1). That’s why I don’t want to argue about that. I want to tell you how we live under that restrictions: how workers, engineers and house-hold-wifes are living. Another “by the way” here: I speak russian and english, and now learning norsk, but I don’t have a big vocabulary in my head, so sometimes I will use words that probably did not exist. I will combine simple words that I know in one lo-o-o-o-ong word to describe some events. For example, under “house-hold-wifes” I mean “a wife who sitting at home, preparing food, acting with children, etc.”. So on… Excuse my english.

We have a lot of problems now. Prices are getting higher and there’s lack of foreign food in our stores: milk productions, cheeses, yogurts, fish, sea-products and so on. We are not starving – there are a lot of russian food, but prices getting higher and higher, while salaries are still the same. Sometimes we riding to Finland and buying foreign food from the Union in suomi-shops, but it works well only for ones, who live near that country: people from Moscow, Saint-Petersburg and so on are riding to Finland or Estonia so often… I like these countries, they are beautiful! Nature, lakes, forests, you know. And you can buy everything – if you have money, of course!

I don’t like how all the world are looking at us now. I don’t want to be a part of a country that is under a bullet-less fire, because it’s unfair. Seems that I and every single person in Russia did nothing personally to Union or mr. Obama – but we have problems. Not our government – but we. Citizens. On every single foreign forum I try to make people understand us too, but it’s like a farting in the pond – loud but useless.

But I keep trying.

Why not world government? Part 1

Since I joined the Notes On Liberty symposium Brandon Christensen and I have had a series of playful back and forth on the issue of world government. I initially intended to offer a comprehensive response on why I disagreed with Christensen, but after reading through older posts and comments I’ve decided that it would be best to clarify what we mean when we mean by world government. The point of this back and forth is not to have a ‘winner’ after all, but to better understand one another’s concerns and hopefully come to agreement after hashing out the details.

By world government I am referring to a polity that has jurisdiction over the practically inhabited universe. If humanity inhabited Mars, the Moon, Earth, and a few asteroids then a government that had jurisdiction over only Mars would not be a ‘world government’ despite it clearly controlling the governance of a planet. Conversely a monopolis needn’t cover a whole planet; the Roman and Chinese empires were both near-monopolis that controlled much of the practically inhabited world at their respective times. I understand that this might be confusing so I propose the term monopolis, “single city”, to refer to this concept.

A monopolis does not necessarily have to be ruled in a given manner. A monopolis could be an intergalactic feudal monarchy, such as the government of the Padishah Emperor and the Landsraad in the Dune series. Or it can be ruled as a decentralized federation of planets such as the Foundation in its title series. For our purposes we are dealing largely with a federal-monopolis, where several smaller polities exist as part of the larger federation that assures a minimum degree of individual rights are enjoyed by all federal citizens and that a reasonably free movement in goods (and people!) exists.

Is world government anti-libertarian? As a libertarian my knee jerk reaction is to view any government with deep suspicion, with an appropriately larger knee jerk as the government in discussion is larger. That is to say that I distrust the United States federal government more than I distrust the city government of my beloved Los Angeles. Christensen has written on this habit of libertarians to fall into this habit before. I agree with Christensen fully that his knee jerk reaction can be troublesome when it leads libertarians to reject large government policies as a matter of principle without further inspection on the details.

For example the North American Free Trade Agreement (NAFTA), the World Trade Organization, the Trans-Pacific Partnership, and others are ‘large’ government policies that I think all libertarians should support because they promote greater trade liberalization. By no means are any of these agreements about genuine free trade, and they contain several trade restrictions, but overall they have led to a reduction in trade barriers across the world.

I disagree with Christensen, or at least disagree in a matter of degree, in that I don’t think this knee jerk reaction is unwarranted. Individuals have less control over government affairs over as the government unit grows in size. I can go find my local councilman and harass him about my city’s poor budget with relative ease, but doing the same with my federal House of Representative is almost impossible. This lack of accountability to their constituents sets up incentives for public officials to indulge their private preferences. On occasion the private preferences of public officials align with the interests of constituents, hence the existence of things like NAFTA. However the latter is an exception, not a rule, in large governments.

In summary; most libertarians view monopolis as being inherently anti-libertarian. I do not believe that monopolis are inherently anti-libertarian and concede that a monopolis could in theory adopt libertarian public policy under specific institutional arrangements that aligned the interests of public officials and their constituents. I am however skeptical about how likely it is that this can be achieved. Christensen is apparently more optimistic on the matter than I.

A monopolis does not necessarily have to allow constituent members to leave freely. A monopolis could very well have arisen as a product of conquest. For our purposes though we assume that the monopolis allows constituent members to leave freely through some sort of referendum process. Christensen has discussed this in his latest post on the issue.

A monopolis has an over-arching form of ‘citizenship’ that guarantees its individual citizens a minimum of liberties. As I discussed in my last post, I prefer local citizenship, but I am willing to imagine a monopolis where an individual has a federal citizenship in addition to sub-level citizenships.

A monopolis in short:

  • Is a government that has jurisdiction over the practically inhabited universe,
  • Not necessarily organized in any specific manner, but for our purposes we assume a loose federation,
  • Not necessarily anti-libertarian in its public policies (but not necessarily libertarian either!),
  • Not necessarily the product of conquest, but not neither is it necessarily the product of members voluntarily joining,
  • And offers a form of federal citizenship that guarantees a minimum degree of liberties.

I ask that Christensen responds on whether he is willing to accept this definition of a monopolis, or world government, or offer his counter-proposal for a definition before we continue further.

Around the Web

  1. A review of The Iraqi Christ
  2. Looks like the folks at the Atlantic have been reading NOL (though no hat tips were to be found)
  3. Men on Horseback
  4. The one area of political ingenuity where Europe still leads the world

Brazilian Elections 2014: Results and Problems

I’ve recently posted on the Brazilian Presidential Elections of 2014. Brazilians also voted for State Senate, National Senate and Congress and State Governor.

The top most voted candidates in the Presidential Elections make the cut to the second round (unless the top candidate dominates by a considerably wide margin).

Labour Party incumbent Dilma Rousseff was the most voted candidate with 41% of the votes. Social-Democrat Aécio Neves will challenge her in the second round – he got 34% of the votes, whereas Marina Silva of the Socialist Party was the choice of 21% of the voters.

This comes as a big surprise, since Neves and Silva were technically tied after the final poll before the elections. Because of the power that polls have to potentially influence the vote, rumours are that Aécio had been faring much better, but that the polling methodology had been compromised.

A technical issue with the electronic vote machines has been denounced by several voters in different parts of the country. Some people complained they couldn’t choose Neves as their candidate, because the machines wouldn’t allow it. A police report was issued in at least one incident related to faulty machines, which allegedly shifted votes in favour of the incumbent candidate. A simple internet search reveals stories of people who tried to set the machines on fire, among other isolated episodes.

Former footballer and US 1994 World Cup champion Romário is also making the headlines. Romário has been a Congressman for some time. He has adopted a pragmatic anti-corruption approach during his term. This time, he ran for the Senate. With more than 5 million votes, Romário is the most voted Senator in the history of the state of Rio de Janeiro.

Neves and Rousseff will have only a few weeks to carry on their campaigns and debates before the final decision.

How to Date a Woman and Why I Love America

Originally posted on FACTS MATTER:

Young men are confused nowadays because even this kind of talk is politically incorrect. I am talking about talks on how to please women and influence their decision to do this or that. I am an experienced man from another era when men knew what they were doing and the women appreciated it. So, here is some guidance based on a recent dating experience I had.

First thing first: Women don’t primarily want love or riches or wondrous sex (though neither one or the others hurt).

They want to be entertained, endlessly.

Women want to be amazed by unfamiliar objects but within a context where they feel safe. so, I took my date to a print shop. She had never been to one. I checked the progress of a new poster for my book (“I Used to Be French: an Immature Autobiography.”) She thought that was very, very nice. A…

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Les pumas de grande-banlieue: histoires d’emigration

Originally posted on FACTS MATTER:

Un recueil étonnant par un immigrant de longue date qui n’a jamais oublié être élève de Diderot et de Voltaire (en plus du poète Jacques Prévert). Il y raconte la Californie en trois courtes nouvelles, trois micro-essais et une mini-autobiographie. On y trouvera: des pumas, bien sûr, une voisine infernale et casi-meutrrière, une cocasse leçon d’Anglais, une interrogation critique sur le lien possible entre francophonie et indifférence aux faits, une présentation insolite de la discrimination raciale, la pêche à la langouste, la bourride, le patriotisme, la vie dans un château d’eau en bois, la traversée des Etats-Unis an auto-stop, la débâcle du Marxisme, l’université Stanford, la transformation de vergers en Silicon Valley.

En version electronique sur Amazon:

En France:

http://www.amazon.fr/gp/product/B00NI2PCGO

Aux Etats-Unis

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Brazilian Elections 2014: Preview

Tomorrow, when Brazilians vote for President, the most likely outcome is that we’ll know the names of two candidates that made the cut for the second round of elections. And the incumbent Dilma Rousseff is likely to be one of them.

The candidates

Labour Party candidate and current President Rousseff is leading the polls, but in everyday conversation she’s arguably the least popular candidate. There’s nothing fresh in her platform, and it’s safe to assume a second Rousseff term would look pretty much the same as the first term: unimpressive.

Environmentalist Marina Silva, of the Socialist Party, has surprisingly defended a centrist and pragmatic economic agenda, a slight shift to the right, if compared to Rousseff’s platform. Amongst other things, Silva would push for the autonomy of Brazil’s Central Bank, along the lines of the Fed in the US.

Aécio Neves, a Social-Democrat, has a similar centrist agenda, but clothed in small-government rhetoric – again, out of pragmatism and in pursuit of more efficiency, and not necessarily out of principle. Pundits have analysed Neves’ debate performance and he seems to come across as the most well-prepared candidate in the field.

Compulsory Democracy

We’re to expect a large turnout, due to a peculiar arrangement in Brazilian law: voting is compulsory to all citizens, residents and non-residents alike, over the age of 18, with few exceptions.

In order to vote, it’s necessary to show a voter’s ‘permit.’ If a citizen fails to turn up to vote, that permit number will have a negative record. Citizens who can’t make it in time will have a deadline to turn up in electoral court to justify why they didn’t vote. If there’s a good reason, they get a stamp and a document clearing their voters ‘record’. If the absence isn’t ‘justified,’ then a fine is due.

Votes are cast electronically. Each voter will use a cabin with a machine where a candidate number must be entered. In case the number is incorrect, it’s possible to correct the vote. In case the number hasn’t been assigned to any candidate, the vote is ‘nullified’. Citizens also have the right to a blank vote. The transparency of this system has ben questioned on several occasions, not least because of the risk of tampering with the machines.

Final Sprint

Marina Silva’s campaign was a great surprise, since her party’s nominee died in a plane crash. She quickly rose in popularity and took the second place in the polls. Critics pointed out that Silva was one of the founders of the Labour Party – President Rousseff’s party, and then defected to the Green Party and later joined the Socialist Party, where she currently is. A key objection to her campaign was the similarity between her ideological background and that of the President’s.

Speaking of background, Aécio Neves’ family story was another factor emerging in this campaign. Neves was an unlikely nominee initially, because most of his party’s base and its inner circle are concentrated in São Paulo, whereas Neves made his political career in the neighbouring state of Minas Gerais. Neves’ grandfather was the first President elected after the end of military rule in Brazil (1985), but he died tragically before being sworn in. Since then, the name Neves has been associated to the many political ironies of Brazilian history.

For a few weeks, Silva sat comfortably in the second position. However, after a series of TV debates, it became clear that President Rousseff was struggling to get her points across, and that Neves was well-prepared and well-advised. The incumbent lost some points in the polls while Neves came to a surprising rise in the final sprint, overtaking Silva in the second place.

The common outcome of Brazilian presidential elections is a smaller question mark – from a pool of five or more candidates, the top most voted are generally selected for a second round, to take place a few weeks later. This is likely to happen again, but it’s hard to predict who will get the ticket to challenge Rousseff.

Blaming Finance, Ignoring Real Causes

The fall 2014 Cato Journal has an article, ‘The Financial Crisis: Why the Conventional Wisdom Has It All Wrong,” [pdf] by Richard Kovacevich, Chairman Emeritus of Wells Fargo. The author is correct in saying that the conventional wisdom is wrong in blaming the slow recovery on the “uniqueness of a financially led economic recession.” The US economy recovered from the severe 1980 recession within two years, while now the economy is creeping like a turtle.

The economic cause of recovery and growth is simple. Economic investment – the production of capital goods – drives the business cycle. Recessions are caused by a sharp fall in investment. Then, as the prices of raw materials fall, and as land rent drops, a depression reduces these costs of production, therefore increasing profits, so investment recovers. Government can boost the recovery by further reducing the costs of production, by decreasing the taxes and regulations it imposed previously. This is the “supply side” policy of increasing investment and production by reducing the costs of regulations and taxes.

But this time around, the federal government did the opposite. Costly regulations have magnified, with an anti-supply-side effect. Every year, there are thousands more regulations that hamper enterprise, and finally, regulations plus taxes have achieved the tipping point of making it too costly for enterprise to invest and hire labor.

After the Crash of 2008, the federal government had two basic policy options: it could help the economy recover with market-enhancing supply-side policies, or else the government could enact the welfare-state agenda of greatly increased governmental medical services. The government chose the latter option, which imposed even greater costs on enterprise and labor.

When the recession hit the economy in 2008, one of the responses was TARP, the Troubled Asset Relief Program. As the article states, one of the problems with TARP was that it did not focus on the troubled banks, but imposed the policy on all banks. The banks that were not troubled had to obtain the funds and then pay interest on them. TARP imposed the impression that all banks were in trouble, which destroyed confidence, and then Congress responded to the turmoil by imposing 25,000 pages of Dodd-Frank regulations.

None of the financial regulations, going back to the Great Depression, confront the causes of the boom and bust. The fundamental cause is massive subsidies to land values. The Cato article focused on the financial industry, but the more fundamental issue is government policy regarding real estate. The problems of the financial industry originate in their financing of real estate.

The history of the Americas has been that of grabbing land and enslaving labor. In the American colonies, the British government promoted European settlement to control land and to profit from trade. After the defeat of the French in 1763, the United Kingdom changed policy to avoid conflict with the people of Quebec and with the Indians, by restricting western speculation and migration. That annoyed the landed interests enough to declare independence, and to establish a constitution that would better extend and protect land speculation. Huge grants of land were given to railroads, veterans, colleges, and speculators.

After the public domain was disposed of, the government continued the subsidy of the large landed interests with implicit policies that are invisible to the public and to most economists. The provision of public works, welfare to the poor and elderly, and artificially cheap credit, all generate greater land rent and land value. This amounts to a vast redistribution of wealth from workers, tenants, and enterprise owners, to landowners, especially the concentrated owners of commercial and farm land.

With a fixed supply of land, much of the gains from an economic expansion is captured by higher land rent and land value, which then attracts speculation that carries real estate prices to unsustainable heights. When land values crash, they bring down with them the financial system that provided the loans. None of the financial regulations touch this basic cause, and land-value seeking is so deeply ingrained in American culture that people favor it even at the price of high taxes, high unemployment, and the destruction of liberty.

Ask a typical American, “Would you favor a tax reform that eliminates taxes on your wages, on interest from your financial assets, and on buildings, replaced by a tax only on land values?” The answer is, “No! I would rather suffer unemployment, insecurity, crime, poverty, and loss of liberty, than have my precious land taxed!”

“OK, then, would you favor the complete replacement of government’s public goods with private, contractual, provision that eliminates the subsidy to land values?” “No! We need government to provide these things!”

Then you ask, “So why do you want the word ‘liberty’ put on our coins?” The answer is, “I want liberty so long as it is not put into practice!”

And that is why government deals with the superficial financial appearances, and not the implicit reality that causes the booms and busts.

Expanding the Liberty Canon: Marsilius of Padua on the Defence of civic Peace

There is a leap of more than a millenium from  my last post on Seneca to Marsilius (originally Marsiglio) of Padua (c. 1275 to c. 1342). I am not saying that no one wrote any texts advancing liberty during that time, but the major texts of late antiquity and the Middle Ages up to the thirteenth century concerning political ideas lean towards the desirability, or at least unavoidability, of law making and governmental powers centralised in a monarchical figure, rather than constraints on power,  or a positive vision of individual autonomy.

One might argue that the spread of Christian monotheism enhanced the value placed on individuality, and that the codification of Roman law in Constantinople in the sixth century CE (commanded by the Emperor Justinian) advanced the idea of liberty under law. Even if we take a very positive view of those developments, and they are certainly deeply important, they can be no more than elements in the creation of laws and institutions that promote liberty.

There must be more to social and political liberty than a belief in an inner soul and the institutionalisation  of the law outside the individual. The importance of the individual and the rule of law at least require some further articulation in how to form a political community that recognises the merits of individual liberty in every sense.

There were great thinkers who addressed political questions  during the time between the early Roman Empire (Seneca) and the late Middle Ages (Marsilius of Padua), most obviously Augustine of Hippo (354-430), Al-Farabi (872-950), and Thomas Aquinas (1225-1274), but in my judgement they lean too far towards emphasising the sovereign power, assumed to be be ideally a monarch, who can enforce law and religiously inflected notions of virtue, to be regarded as promoters of liberty, even if much of what they wrote is of value from a liberty advocating point of view.

Others may disagree, Murray Rothbard for example thought of Aquinas as very close to his own individualist anarchist point of view, which however does not strike me as the strongest point in his writings. My argument is that Marsilius made a decisive step in turning a rich tradition of writing on virtue, civil law, natural law, and sovereignty, towards  a concern with individual diversity and the right for everyone to play some part in determining the laws that one is obliged to obey.

In this, he was maybe anticipated by Florentine humanist and republican thinking, but not by any great historical distance, and there is lack of readily obtained in print or online texts in English from that time in Florentine history, though I hope to return to this in a  future post.

The historical background to Marsilius’ thought includes the political life of medieval north Italian city states, little republics often known as communes. Conflict between the Papacy and German Emperors gave them the opportunity to maintain independence through playing off the great medieval political powers against each other.

Their independence, like that of the ancient Greek city states, ,involved a good deal of conflict with each other about boundaries and alliances, and internally with regard to governmental power. This of course was a violent process, but there was violence elsewhere with less productive results for liberty.

Some background on  the Papacy and the Empire is necessary here, as general background, and with regard to the life of Marsilius, who was very much part of the struggle between the two. The Roman Empire was revived, in name anyway, in 800 for Charlemagne, the ruler of what is now France, Germany, Austria and neighbouring territories, including northern Italy.

Charlemagne was crowned by the Pope in Rome in a move the emphasised separation from the continuing eastern Empire in Constantinople and a strong ally for the power of a Roman centred Catholic church in the west. By the time of Marsilius, the title of Emperor had disappeared, revised, and evolved in its meaning.

The stage reached was the the Emperor was elected by major German princes and was known as the Emperor of Germany, though also as Holy Roman Emperor, or Emperor of the Romans, in recognition of his preeminence in Catholic Europe, and apparent role of providing secular partnership to the divinely ordained role of the Papacy.

The Emperor’s power over most of Germany, outside the hereditary lands of the prince elected, was very limited, so that Germany was essentially a patchwork of a very large number of very varied kinds of sovereign entity (city republics, bishoprics, monasteries, domains of a margrave, duke, knight, etc) under a grand  but weak monarch, who had some claim to universal monarchy within the Catholic world but only at the level of symbolism .

The Emperors had continuing claims in northern Italy, which brought them into conflict with the political ambitions of Popes to dominate the region, and generally the supposed partnership of throne and alter led to violent conflict about how to share the power.

It was also a time of growing commercial life in Europe, with northern Italy as part of the vanguard. The erosion of traditional forms of authority and loyalty which accompanied increasing commerce, combined with an intensification of conflicts between Emperor and Pope, along with competing candidates to be Emperor or Pope.

Marsilius was in the middle of this, born in northern Italy, in the city of Padua as his name indicates. He trained as a doctor, after a period as an Imperial solider and became Rector of the University of Paris, then engaging in work on theology and politics which led to conflict with the Papacy. He was sheltered by the German Emperor at his base in Munich.

The major result of this was the large book, The Defender of the Peace, often known by its Latin title of Defensor Pacis. It contains three discourses, the first of which is less than half the book, but contains his thought on the nature of politics, civil law, and the state. This might be seen as a defence of the role of the Emperor as defender of the peace, who the right to autonomy from the Pope with regard to worldly matters.

However, there is much about the First Discourse, which challenges the role of princes. That Marsilius was able to do so while relying on the Emperor for protection from accusations of heresy, is suggestive of the value of the papacy-empire and church-state splits in medieval Europe along with competition between states and the the contestation of Church doctrine by ‘heretical’ groups, in fostering liberty in a Europe, which lacked any absolute overarching political or religious power centre.

As is normal with medieval philosophy, Marsilius writes with regard to the text of the Bible and even more with regard to the writings of Aristotle, which in this case means mostly the Politics and the politically oriented parts of the Nicomachean Ethics. As normal, there is also reference to the Commentator, that is Ibn Rushd, known in Latin as Averroes (1126-1198), a Muslim philosopher who like Seneca was born in Cordoba, Spain. His commentaries on Aristotle transformed Medieval philosophy, Christian and Jewish, as well as Muslim.

Marsilius builds up his political ideas taking Aristotle as the major philosophical source, which raises questions about the correctness of his view of Aristotle. I won’t go into that issue any further and will just note that since Marsilius, one way of taking Aristotle has been as a proponent of republicanism with a democratic emphasis. The ‘republican’ thinking is not about abolishing monarchs, and strictly speaking republican political thought has always been about how to share power between all citizens, or some significant part of the citizen body, rather than the abolition of all monarchical titles. This is why Marsilius can be both a republican and support the power of the Emperor, at least in relation to the Pope.

The argument is built up through reading of Aristotle, which emphasises the merits of elective monarchy, so turning the monarch into an elected for life president. If that life time tenure rests on the will of citizens, then at least some possibility is raised on ending that tenure early should the monarch prove unsatisfactory.

Of course the German Emperor was elected by a few princes, but Marsilius is very clear that he is referring to a broader electorate of all citizens. He contests readings of Aristotle, according to which Aristotle only allows for the election of a king by a small aristocracy of those citizens supposed to be very best. Marsilius both denies this is what Aristotle supports and makes his own arguments for saying that the wisdom of all citizens collectively is greater than that of a few privileged citizens taken to be particularly wise.

The wisdom of a few, however intellectually accomplished, cannot match the wisdom of all citizens as that collective wisdom contains all the knowledge there is of the society concerned. Social knowledge comes from the many thousands and even millions of individual perspectives on experienced reality, not the distanced theoretical wisdom of a few. Therefore the wisdom to elected the best candidate as monarch must come from all citizens, and they must all have the right to participate in the vote.

A decision resting on such a multitude also creates a strength and endurance in the state, with regard to external enemies, but more importably with reference to the capacity of the state to sustain itself and allow a ‘sufficient’ life for citizens. That is a sufficient life of fully developed human faculties, not just pure physical survival which might take place without laws, but only in conditions of insecurity and with little hope of a ‘sufficient’ life.

The laws which allow sufficient life are more a matter of codifying the wisdom and experience of history, in forms which are acceptable to all citizens, than the kind of innovations in state power we have come to associated with new law in more recent times. The citizen body which participates in electing the head of the government must also participate in making laws since the same arguments invoked for electing a leader must apply to the laws. Laws, which Marsilius understands as what has the  consent of of all, or close enough, rather than the imposition of the views of a narrow temporary majority on everyone.

He does not make explicit barriers to majoritarian abuse of power, but does not need to since law clearly means to him what is acceptable to the community as a whole with regard to its collective wisdom and the historical experience of laws. The ‘monarch’ or ‘prince’ is clearly expected to apply those laws and to exercise no further powers beyond what defends the existence of the community from lawlessness and external aggression.

Marsilius emphasises the viability and sustainability of the community as a community of sufficient life rather than as a deduction of law making sovereignty from individual rights. His approach, grounded in antique political and legal thought, might sound less respectful of individual liberty than the deduction from individual rights, but the modern tradition of such deductions, these days forming the major part of ‘normative’ political theory/analytic political philosophy, have not proved at all immune to statist ideas, while individual rights to pursue ‘sufficiency’ are so deeply embedded in Marsilius’ assumptions as what is natural to an individual and to a sustainable community, that it does not need articulation in the form of pure abstract rights detached from the necessary conditions of lived communities.

How democratic Marsilius is, by our standards, can be debated on at least two counts. One count is that at this time, and right into the nineteenth century, ‘democratic’ politics might might still exclude ‘dependent’ individuals from political rights, that is those who were thought to be lacking in the economic independence and self-dependence, which would supposedly allow for free and considered judgement .

Those excluded included those making a living from employment by someone else rather than through property, self-employment as a skilled worker, or membership of some legally recognised corporation of individuals with equal rights (like a university or a trade guild).  Farm labourers, employees of urban enterprises,  vagrants, and domestic servants were likely to be excluded along with women, religious minorities, and those still  carrying the vestiges of medieval serfdom in their legal status.

The second count is that Marsilius offers little indication of how his democratic ideas could be applied in practice, though he was presumably relying on memories of Italian communed, still leaving a huge gap on how to apply such principles to a political community as large as the German Empire, leaving the suspicion that he was mainly arguing for the power of the Emperor on the basis of pretended democracy, and a supposed rule by laws rather by any individual.

There is neverthless more than enough in Defensor Pacis overall to stimulate considerable creative thinking about what it is to create the laws and government best suited to liberty. His criticisms of the supposed wisdom of  few at the top, are very powerful and necessary now with regard to the pretences of state planning and regulation. His understanding of how wisdom arises from the multiple experiences of the multitude, with regard to the limited   goals of government and legislation, have great application to the role of markets and voluntary co-operation in a society of free individuals.

“The Lack of Competition/Diversity”: One objection to world government that shouldn’t be made

I have recently come across an old blog post by Ilya Somin at Volokh Conspiracy arguing against world government. Somin’s argument echoed Michelangelo’s here at the consortium, and in particular one aspect of their argument stands out for being especially short-sighted: That of a lack of competition or “diversity in governance” would be the inevitable result of a world government.

Now, a libertarian world government would be federal in nature, so if Somin and Michelangelo are arguing against a different kind of world government they may have a point (I don’t know of many arguments in favor of world government that are not federal in nature, and it wouldn’t be worth my time to read up on any such ludicrous proposals), but when addressing arguments in favor of world government from a libertarian perspective opponents must realize that it is federation they are skeptical of.

Here is how I address the opposition to a world government because competition (and, thus, diversity) would become diminished:

Libertarians generally argue that federalism is the best option we, as humans, have because it allows for competition between administrative units. This competition is enhanced and respected by the people it affects because of the rules set in place and enforced by a federal authority. So, for example, everyone in the US federation generally has their individual rights protected (there are always exceptions, of course, including blacks, Natives, felons, immigrants, and religious minorities), including freedom of movement. Under this general framework different administrative units come up with different policies concerning taxes, education, transportation, etc. This competitive framework makes policies better overall, in all 50 states, without having to resort to a central, one-size-fits-all policy.

It is true that the US could be better, and it is true that federal democracy may be inferior to anarchy, but it is also true that we live in a world of second bests, and comparatively speaking, the US has one of the highest standards of living in the world so I don’t see why this should not be taken as a sort of rough estimate for where libertarians should be aiming.

Is everybody in agreement that federalism is the least worst workable option largely because of the competition it allows for?

Okay then. It somehow follows, for opponents of world federalism, that if the US federal system were to add every administrative unit in the world into its system that competition would suddenly cease.

Huh?

Okay, I am being a jerk about this line of reasoning. It actually goes something like this: Because the US and Russia have different systems of governance, they are competing with each other. Fair enough, but it does not follow that this competition is a good thing. If I recall correctly, there are good kinds of competition and there are bad kinds of competition. Walmart versus Target is good competition. Lobbying for political favors is good competition (consider the alternatives, i.e. Russia). Building up military capabilities is bad competition. Pitting human rights-abusing regimes against liberal democracies is bad competition, too, but this last scenario is precisely what opponents of world federalism argue is desirable about the status quo.

World government wouldn’t eliminate competition, it would enhance it by focusing governmental duties on policy issues and standardizing a regime of rights protection based on the notion of the free and sovereign individual.

Comparing the US to, say, Gabon or China is not competition. It is an injustice, and one that ignores the plight of billions of people living under despotic regimes. Competition is not what happens when 5 million people live in a liberal democracy and 5 million more live in a one party socialist state. Competition is what happens when all 10 million people are free to worship the Flying Spaghetti Monster whenever and wherever they please, but only half of them pay a sales tax (the other half have banned plastic bags through plebiscite, of course).

Even if my competition-is-enhanced-by-federalism argument does not convince the opponent of world government, the fact that his own argument for more competition, through state sovereignty, should.

Consider the following scenario in regards to competition and world federalism: The state of Durango, in the United States of Mexico, is fed up with Mexico City’s corruption and inefficiency. The leaders of Durango, and a significant population of Durango (say, 60-65%), all would be thrilled to leave the Mexican federation. However, Durango knows that independence would be much worse than federation, so it continues to stay within the Mexican federation and simmers with despair and loathing.

Under the status quo – competition through state sovereignty – Duranguense have no options whatsoever, except to keep electing reformers to political office at the federal level and hope for a reform bloc to coalesce. How is this competitive?

Now, consider the scenario outlined above again. The federation of 50 American states has adopted a statute that allows for disgruntled administrative units elsewhere in the world to apply for admission into the union. Duranguense suddenly have an option. Not only that, but Mexico City suddenly has competition, and little of it can be snuffed out through repressive domestic policies.

Does this make sense? Am I knocking down a straw man? If so, please don’t hesitate to take me to task in the ‘comments’ threads!

Stephen Cox Reviews Delacroix’s New Book

From the pages of Liberty:

Another book that I’ve enjoyed, and I don’t want other people to miss, is a work by Jacques Delacroix, who has contributed frequently to [Liberty's] pages. In this case, you can tell a book by its cover, because the cover of Delacroix’s book bears the title I Used to Be French. Here is the cultural biography — cultural in the broadest sense — of a man who became an American, and an American of the classic kind: ingenuous, daring, engaging, funny, and again, curious about everything in the world. Whether the author began with these characteristics, I don’t know, but he has them now; and what you see in the book is someone learning, as he moves from France to America and from mid-century to the present, that “American” is the best name for his own best qualities.

It takes literary skill to project a many-sided personality; and the strange thing is that it takes even more skill to project the differences we all feel between American culture (bad or good) and French — or any other European — culture (bad or good). We feel those differences, but when we try to describe them we usually get ourselves lost in generalizations. Delacroix doesn’t. He has a taste for the pungent episode, the memorable anecdote. He also displays two of the best qualities of which a good author, American or French, can ever be possessed: an exact knowledge of formal language and an intimate and loving acquaintance with the colloquial tongue.

Sampling Delacroix’s topics, one finds authoritarianism, Catholicism, Catholic iconography, the Cold War, communism, diving, driving, the end of the Middle Ages, existentialism, food, French borrowings from English, the French navy (being in it), getting arrested, grunion, jazz, Levis, lovemaking, Muslims, the People’s Republic of Santa Cruz, political correctness, the Third World in its many forms. . . . Most (even grunion) are topics that a lesser author would inevitably get himself stuck to, but Delacroix romps through them all. If you want a loftier metaphor, you can say that they (even the grunion) are jewels strung on the book’s central story, as sketched in the summary on the back cover: “A boy grows up in the distant, half-imaginary continent of post-World War II France. Bad behavior and good luck will eventually carry him to California where he will find redemption.” And a lot of fun, for both the reader and himself.

Dr Cox is a Professor of Literature at UC San Diego. Be sure to check out Peter Miller’s review of Delacroix’s book as well (Dr Miller is also a sociologist and artist). EDIT (10/2/14): You can order I Used to Be French… from Dr J himself by sending an email to iusedtobefrench@gmail.com.

I just worked my last day as a day laborer for a stone mason crew in Utah today. I’ll be on the road again, headed more or less toward Seattle, but will be contributing to the blog a bit more often (unless I can convince my co-bloggers to start producing much more material, which would make me more than content to sit back and troll the ‘comments’ threads).

PS: Did anybody see the UCLA-Arizona State game? Wow. Pac-12 football at its finest baby! It will be unfortunate if the championship game does not have a west coast representative. The country deserves better, although I think the new playoff system will ensure that the brutal Pac-12 season doesn’t eliminate the best teams simply because they have all lost one game to another championship contender. The west coast isn’t the SEC. We play hard games, week in week out.

A New Chicago School?

Consider America’s transportation system. I like to imagine that it ought to be a certain way. I imagine a world where a lot of freight travels competitive rail lines. And occasionally a transport truck traverses the country side, maybe to serve a new or small market without a rail road. I imagine a truck entering a town, passing some sort of device that alerts the local police that a vehicle has entered the town without the appropriate toll-paying transponder. Since this is the first time this has happened, the officer hands the trucker an application and signs him up on the spot. Oh! And there aren’t major freeways all over the place. Just a lattice work of efficient highways skirting the edges of towns and winding byways trailing through the country side. Perfect motorcycling roads and beautiful markets all in one.

My perfect world wouldn’t have much room for the fast modern engines we’re used to cars having. Planes and trains are fast enough for long distances and for shorter distances we simply don’t need to go so fast. The technology in those modern engines is malinvestment. That capital exists because interference with markets has skewed the relative financial benefits of different research (e.g. at the expense of investment in technology necessary for seamless and efficient toll-roads). This skewed capital structure also indirectly subsidizes fast-food while implicitly taxing the experience of traveling through, rather than past, small towns.

But what would actually keep it that way? It’s all a bit too good to be true. Am I being Utopian? Yes, but I think there might be some merit in that. My utopia can be thought of a limiting case; one of many possible best-case scenarios. We might conceive of a yard stick akin to Pareto Optimality but in a dynamic setting.

The world can be dynamically-Pareto optimal and have economic profits, but only those that arise as a result of productive entrepreneurship. Actions that create net value should be the only ones that generate profit. And externalities (whether pollution or politics) should be resolved by property rights and liability law. At least in the long run.

Such a world would serve as a benchmark in exactly the same way as Perfect Competition, and I would name it similarly. Perfect Markets (I’m open to suggestions) would be those that are simply too perfect to exist in the real world, but would offer a limiting case against which differing scenarios might be considered.

I suspect that something like this has already been offered but I’m only slowly working my way through one work and it will be a while before I get to another notable work. That first (from the Austrians) I suspect would be (justifiably) critical of what I’m discussing and perhaps it is a project best suited for applied mathematicians. It would certainly allow a good deal of theorem proving and other apparent mental master–… mastery (yes… mastery…). For some time there might be little apparent use or scientific merit in this. But number theory only became valuable with the advent of computers centuries after mathematicians started thinking about the minutiae of numbers. It’s not always for us to say that something doesn’t have a use just because we don’t see it yet. It’s a good idea to let some curious mathematical tinkerers doddle away at problems; they might turn out to have offered a valuable and useful gift to future generations.

Spontaneous thoughts on a humble creed

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