Obscenity law liberalised

2014 Protest outside parliament for sexual expression. Photo by BeeMarsh BeePhoto
December 2014 Protest outside parliament against sex censorship. Photo by BeeMarsh BeePhoto

This is a cross-post from my contribution to the Adam Smith Institute blog.

Last week the Crown Prosecution Service published updated guidance for prosecutions under the Obscene Publications Act (1959). Legal campaigning has brought about a big change: the liberal tests of harm, consent and legality of real acts are now key parts of their working definition of obscenity. The CPS explain:

… conduct will not likely fall to be prosecuted under the Act provided that:

  • It is consensual (focusing on full and freely exercised consent, and also where the provision of consent is made clear where such consent may not be easily determined from the material itself); and
  • No serious harm is caused
  • It is not otherwise inextricably linked with other criminality (so as to encourage emulation or fuelling interest or normalisation of criminality); and
  • The likely audience is not under 18 (having particular regard to where measures have been taken to ensure that the audience is not under 18) or otherwise vulnerable (as a result of their physical or mental health, the circumstances in which they may come to view the material, the circumstances which may cause the subject matter to have a particular impact or resonance or any other relevant circumstance).

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John Rawls had good reason to be a reticent socialist and political liberal

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John Rawls: Reticent Socialist by William A. Edmundson has provoked a renewed attempt, written up in Jacobin and Catalyst, to link the totemic American liberal political philosopher with an explicitly socialist program to fix the problems of 21st century capitalism, and especially the domination of the political process by the super-rich. I found the book a powerful and enlightening read. But I think it ultimately shows that Rawls was right not to weigh his philosophy down with an explicit political program, and that socialists have yet to respond effectively to James Buchanan’s exploration of the challenges of non-market decision-making – challenges that bite more when states take on more explicit economic tasks. The large-scale public ownership of industry at the core of Edmundson’s democratic socialism is plausibly compatible with a stable, liberal political community in some circumstances but it is unclear how such a regime is supposed to reduce the scope of social domination compared with a private-property market economy in similar circumstances once we look at public institutions with the same skeptical attention normally reserved for private enterprise. A draft review is below.

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Rent isn’t a four-letter word

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Inspired by the publication this week of NYU scholar Alain Bertaud‘s critical new book Order without Design: How Markets Shape Cities (MIT press), Sandy Ikeda‘s pre-book development series Culture of Congestion over at Market Urbanism, and London YIMBY, here is a note on housing reform.

Classical liberals see the economic solution to housing as relatively simple: increase supply to better meet demand. By contrast, the political economy of housing is almost intractably complex. The reason for this is that there are endless externalities associated with new housing: access to light, picturesque landscape, open space and uncongested roads just for starters. These gripes and grievances are the bread and butter of local politics. Unlike consumer product markets, housing cannot be disentangled from these social, political and legal controversies. A successful market-based housing policy must establish institutions that not only encourage housing supply growth but navigate around these problems while doing so.

Policy reform proposals that deliberately favour increasing owner-occupied single-family homes, as tends to be the focus among market liberals in the UK (and to some extent in the US), are currently self-defeating. As justified as they were in the past to achieve a more market-friendly political settlement, they are now a barrier to achieving plentiful, affordable housing. This is because every new homeowner becomes an entrenched interest, a potential opponent to subsequent housing development in their area. They impose more political externalities than renters. I propose we cut the link between support for home ownership and housing supply policies. This would free up policymaking to focus on expanding provision by all available market-compatible means.

This should include greater encouragement of institutional landlords, especially commercial enterprises. Commercial landlords have more incentive and capability to expand supply on estates that they own, while long-term renters (unlike homeowners) have an interest in keeping rental costs low. The lack of private firms dedicated to supplying housing in England compared to much of the rest of the world is startling and yet often overlooked even by friends of free enterprise.

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Populism versus Constitutional Democracy

What is the difference between a conservative and a reactionary? A conservative knows when she has lost.

A conservative respects the status quo for the sake of stability. The reactionary rebels against it. Unfortunately, it is the reactionary impulse within Brexit that now threatens to hem in the liberties of British citizens, and threaten the rights of foreign residents, for a long time to come. A looser but productive relationship that Britain could have had with the European Union was lost, first at Maastricht in 1992, then again at Lisbon in 2007. A conservative recognizes this loss and adapts her politics to the new landscape. The reactionary tries to reconstruct those lost pasts in vain as the chaotic debates in Britain and the increasingly disappointing outcome illustrates.

Does this mean that referendums are bad? Do they only embolden radicals and reactionaries? It depends. If referendums are used to rubberstamp the decisions of a party in power, or as a way of deferring political judgement, then they are useless at best, dangerous at worst. By contrast, if they are part of the fabric of a democracy, and act as a real veto on constitutional change, rather than a populist rallying point, then they can be enormously valuable. They act as an additional check on the political establishment that might be irrationally fixated on some new governance structure. It ensures that every major change carries with it some level of majority support.

Ten years ago, I wrote a monograph Total Recall: How direct democracy can improve Britain. I advocated supplementing representative democracy with a norm or statutory requirement for referendums on constitutional issues and new local initiative powers. I focused on direct democracy in US states that mean that US state elections often involve both voting for representatives and on propositions. Referendums are required for state constitutional changes. In some states, citizens can initiate new legislation through propositions.

There are parallel constitutional requirements in force in parts of Europe, particularly in Switzerland, Norway and Ireland. It is hardly a coincidence that direct democratic mechanisms have slowed down European integration wherever they have had statutory rather than merely advisory force. Ireland had to go to the polls several times to get the ‘right’ answer but at least this meant that a majority of Irish eventually accepted the new EU arrangements. By contrast, Switzerland and Norway, against the wishes of their political establishments, took European integration only so far before settling with generous trade relations and much more limited political integration. The cost-benefit calculus of their arrangements are up for debate, but fewwould deny their legitimacy. Britain’s future position, by contrast, may turn out to look much worse and all because its people never had the chance to say ‘no’ until long after the facts on the ground changed.

It’s the ability to say ‘no’ that’s important, with the implication that the status quo must still be a viable option. A people cannot be legislators. Mass votes can’t add up to complex judgements to inform actionable law. Hence the Brexit referendum for leaving the EU for an unknown alternative was bound to lead to chaos which, in the long run, may undermine the legitimacy of representative government, let alone popular democracy, rather than strengthen it. There is no status quo ante to return to.

At the time I was writing Total Recall, the spirits of referendums never voted on haunted British politics. Referendums were promised on adopting the Euro and the European Constitution. Both were abandoned when the Government realized they would almost certainly lose. So we stayed out of the Euro but signed what became the Lisbon Treaty. This turned out to be a deadly combination that eventually led to Brexit. The Euro is quite badly managed as an economic scheme. As a political mechanism, however, it binds members of the Euro much closer together. Leaving the European Union, as Britain is doing, is perilous and costly. Leaving the Eurozone would be even more difficult as it would involve establishing a new currency from scratch. If New Labour had been serious about putting Britain in a federal united states of Europe, it should have gone all in with the Euro from the beginning.

So Brexit could have been avoided but not by ignoring majority sentiments. If British referendums were constitutionally mandated rather than the random outcome of internal (in this case, Conservative) party politics; if referendums were required to change the status quo rather than a mechanism for a belligerent minority to relitigate past losses, then, like Switzerland and Norway, we would be in a much better position now.

Will our political leaders learn this lesson for the future? That I doubt.

Evidence-based policy needs theory

This imaginary scenario is based on an example from my paper with Baljinder Virk, Stella Mascarenhas-Keyes and Nancy Cartwright: ‘Randomized Controlled Trials: How Can We Know “What Works”?’ 

A research group of practically-minded military engineers are trying to work out how to effectively destroy enemy fortifications with a cannon. They are going to be operating in the field in varied circumstances so they want an approach that has as much general validity as possible. They understand the basic premise of pointing and firing the cannon in the direction of the fortifications. But they find that the cannon ball often fails to hit their targets. They have some idea that varying the vertical angle of the cannon seems to make a difference. So they decide to test fire the cannon in many different cases.

As rigorous empiricists, the research group runs many trial shots with the cannon raised, and also many control shots with the cannon in its ‘treatment as usual’ lower position. They find that raising the cannon often matters. In several of these trials, they find that raising the cannon produces a statistically significant increase in the number of balls that destroy the fortifications. Occasionally, they find the opposite: the control balls perform better than the treatment balls. Sometimes they find that both groups work, or don’t work, about the same. The results are inconsistent, but on average they find that raised cannons hit fortifications a little more often.

A physicist approaches the research group and explains that rather than just trying to vary the height the cannon is pointed in various contexts, she can estimate much more precisely where the cannon should be aimed using the principle of compound motion with some adjustment for wind and air resistance. All the research group need to do is specify the distance to the target and she can produce a trajectory that will hit it. The problem with the physicist’s explanation is that it includes reference to abstract concepts like parabolas, and trigonometric functions like sine and cosine. The research group want to know what works. Her theory does not say whether you should raise or lower the angle of the cannon as a matter of policy. The actual decision depends on the context. They want an answer about what to do, and they would prefer not to get caught up testing physics theories about ultimately unobservable entities while discovering the answer.

Eventually the research group write up their findings, concluding that firing the cannon pointed with a higher angle can be an effective ‘intervention’ but that whether it does or not depends a great deal on particular contexts. So they suggest that artillery officers will have to bear that in mind when trying to knock down fortifications in the field; but that they should definitely consider raising the cannon if they aren’t hitting the target. In the appendix, they mention the controversial theory of compound motion as a possible explanation for the wide variation in the effectiveness of the treatment effect that should, perhaps, be explored in future studies.

This is an uncharitable caricature of contemporary evidence-based policy (for a more aggressive one see ‘Parachute use to prevent death and major trauma related to gravitational challenge: systematic review of randomised controlled trials’). Metallurgy has well-understood, repeatedly confirmed theories that command consensus among scientists and engineers. The military have no problem learning and applying this theory. Social policy, by contrast, has no theories that come close to that level of consistency. Given the lack of theoretical consensus, it might seem more reasonable to test out practical interventions instead and try to generalize from empirical discoveries. The point of this example is that without theory empirical researchers struggle to make any serious progress even with comparatively simple problems. The fact that theorizing is difficult or controversial in a particular domain does not make it any less essential a part of the research enterprise.

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Also relevant: Dylan Wiliam’s quip from this video (around 9:25): ‘a statistician knows that someone with one foot in a bucket of freezing water and the other foot in a bucket of boiling water is not, on average, comfortable.’

Pete Boettke’s discussion of economic theory as an essential lens through which one looks to make the world clearer.

Some Friday links

Actually, Curbing Uber Won’t Relieve Heavy Traffic (Liya Palagashvili, Professor at SUNY, in the New York Times)

CoinFund Is In The Heart Of The Blockchain Revolution (Alisa Cohn’s profile of Jake Brukhman and Alex Felix in Forbes)

The fatal conceit: the hubris of India’s planners (Shruti Rajagopalan, Professor at SUNY, in LiveMint)

Sovereign Entrepreneurship (Alex Salter , Professor at TTU at the Center for Innovative Governance Research)

The promise and peril of blockchain distributed governance

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I was very fortunate to learn that my essay ‘Markets for rules‘ has won the Mont Pelerin Society’s 2018 Hayek essay competition for young scholars (one of the perks of academia is being defined as young well until your 30s). I am now looking forward to presenting at MPS’s famous conference, originally organised by F.A. Hayek to build the post-war intellectual case for liberalism.

The essay is an attempt to explain the governance possibilities of blockchain technology through the lens of new institutional economics and more specifically private governance. Blockchains allow people to develop rules that can then enforced autonomously by the participants that use them without further central direction. This could allow communities to rely more on common rules and less on formal coercive authorities to achieve widespread social cooperation. I am cautiously optimistic about the technology (it could also turn into a dystopian nightmare) though not any particular currently existing blockchain.

Here is the abstract: Classical liberals seek the paradoxical: government powerful enough to protect individuals from preying off each other, but limited enough to prevent it becoming a fierce predator itself. The emergence of blockchain technology heralds a potential revolution in our collective capacity to implement limited government. Blockchains offer a more secure and transparent way of implementing rules while permitting individual choice between rulesets that can co-exist at the same time and place. What this could ultimately mean is that a great deal of what we have traditionally conceived to be governance might be disintermediated from the territorially defined monopolistic coercive authorities that classically define states.