Author: Barry Stocker

Coup and Counter Coup III (Gülenists and Kemalists)

Barry Stocker Current Events, Liberty, Politics , , , , ,

My last post established the party structure in Turkey. The flow of events since the attempted coup of fifteenth July and the emergency regime instituted on twentieth July is that of a government assault on opposition. Democracy as liberal democracy continues to give way to illiberal majoritarianism. Liberal democracy has never existed in its purest form in Turkey, but there was more of it ten years ago and it looks like becoming further diluted. Initial indications that the state of emergency would be three months only, rather than the constitutionally allowed maximum of six months have been undermined by constant renewal with no debate and no indication of when the renewals will end.

When the AKP first came to power its campaign materials included claims that it would end the use of the state of emergency as a tool of government. A long period of emergency rule in the southeast (that is where ethnic Kurds are a majority) had only recently ended. The AKP is now the party that has turned the state of emergency into a permanent state tool for the whole of Turkey. If it ends, it will only be if next month’s referendum gives President Erdoğan the further powers he is seeking, and he sees that as sufficient to compensate for the loss of emergency powers. The ‘presidential’ regime proposed, in reality a regime of elective authoritarianism with an enfeebled National Assembly and judiciary, would turn some emergency powers, particularly rule by decree with the force of law, into ‘normal’ practices.

Not only was the three month period of state of emergency a mislead to dissipate any opposition to the emergency regime, it was dishonestly presented as purely a means to crack down on the Gülenists (followers of the religious community leader Fetullah Gülen who lives in the United States) involved in the coup attempt. The investigation of the coup quickly turned into broad persecution of any associate of the Gülen movement, along with any one connected with Kurdish autonomy movements and the far left in general.

Anyone too loudly questioning the government’s methods, going back to criticisms during the night of the coup with regard to using the mosques to call people to protest and encouraging civilians to put themselves in danger at such protests (hundreds did die), or the mob violence atmosphere of that night, has been accused of Gülenism and been persecuted. Persecution has taken the form of loss of employment, arrest, detention and prison sentences, all relying on emergency powers. Opponents of the AKP have been very willing to believe accusations of Gülenism and to ignore, or downplay, the injustices taking place.

The role of the Gülenists in the coup is debated, though mostly outside Turkey. Most people in Turkey, including myself, have observed the power and ruthlessness of the group, and do not see another plausible candidate. If the idea of a Gülenist conspiracy seems like conspiracy theory, there are real conspiracies and only conspiracy theory could explain why the coup is believed to be Gülenist, if it is not true there has been a Gülenist conspiracy. It was pointed out years ago by the well known Turkish-American economist and Harvard professor Dani Rodrik that Gülenist police, prosecutors and judges had falsified evidence of an army coup with civilian collaborators and given long jail sentences, enabling officers to rise up who participated in the July coup attempt. Ahmet Şik, a journalist now in prison, wrote a well known  book exposing the Gülenists in their infiltration and manipulation of the state and was imprisoned himself now. Amongst the twisted actions of the emergency empowered states, Şik has now been imprisoned on charges of Gülenism.

Maybe other malcontents including some hardcore Kemalists participated, but the initial reaction of hard core Kemalists after the coup was to support Erdoğan. In one case this appears to have meant a radical move from complete opposition to Erdoğan to complete support. That is Doğu Perinçek, one of the most extraordinary characters in Turkish politics, a marginal figure in prison under more than one regime, who has never gained real electoral support who nevertheless finds his way to the centre of events. Perinçek has renamed his ‘Workers Party’, ‘Nation Party’ and may have acted as a contact with Putin through Aleksandr Dugin, a Russian nationalist thinker who enjoys an ambiguous relationship with the Russian President. Perinçek is a novelistic parody of a Kemalist who somehow found his way into real life. He does act as a point of reference for an ‘anti-imperialist’, that is anti-American and anti-EU form of Kemalism, which sees the Baath party (that is the authoritarian pan-Arabist ‘Renaissance’ party of the Assad regime in Syria and in the past of the Saddam regime in Iraq) as a natural ally.

Less colourful characters in the army with comparable views, who were sacked or retired during the faked trials orchestrated by the Gülenists, have come back apparently working with Erdoğan on a Eurasian perspective, as an alternative to the EU and Nato. This position existed in some senior army people before the AKP came to power, though the overall army line was to support NATO and the application process for the EU. The alliance with Putin is now looking ragged, as the Russian troops are clearly co-operating with a Kurdish group in Syria, PYD, defined as terrorist partners of the PKK by the Turkish government. The immediate atmosphere in July and soon after pushed some significant proportion of Kemalists towards Erdoğan as an enemy of their two old enemies: Gülenists and the PKK. The mainstream inheritor of the Kemalist legacy, the CHP, has continued to oppose Erdoğan and the emergency regime, even if rather cautiously and in fear of persecution if they go ‘too far’.

(A discursive approach is taking over from narration of events and future posts will probably proceed in the same way as I try to build a rounded account of Turkey since July 2016, with some historical background. The next post should give some account of other aspects of Kemalist legacy along with the polarisations the AKP seeks and uses to maintain its position.)

Coup and Counter Coup in Turkey II (Immediately after the coup and party politics)

Barry Stocker Current Events, Liberty, Politics , ,

Continuing from here. President Recep Tayyıp Erdoğan proclaimed a state of stare of emergency on the evening of twentieth July 2016. He preceded that announcement by asking his audience, the Council of Ministers, for a round of applause for the opposition parties in the National Assembly, because they had opposed the coup. On the night of the coup (fifteenth to sixteenth July), deputies from all parties sheltering in a basement of the National Assembly, while it was under attack from fighter jets, drew up an anti-coup proclamation. Erdoğan also dropped a large number of cases for ‘insulting the President’ as a good will gesture. This generosity to the opposition did not last long, though there appears to have been at least one further disingenuous conversation. Apparently Erdoğan told the main opposition leader, Kemal Kılıçdaroğlu, about this time that he was unaware that the opposition received a fraction of the coverage on state television of that enjoyed by the government party and thought this should change. Of course the situation has not changed and the government has intensified its efforts to weaken opposition in every way. Prosecutions for insulting the President have continued and often lead to imprisonment, even for legal juveniles.

An account of the political parties in Turkey, along, with some political history, is advisable here so that readers can follow political events. The governing party is the AKP, standing for the Turkish language equivalent of Justice and Development Party. It has centre right, religious conservative, Ottomanist, and nationalist components. The first component has evidently declined over the years and the hardcore was always driven by the three other components. At one time it presented itself as more liberal, pro-EU and sympathetic to Kurdish rights than the other parties. It now clearly occupies contrary positions.

The leading opposition party is the CHP standing for the Turkish language equivalent of Republican People’s Party. It was founded by Kemal Atatürk in 1919 (though at one point as the People’s Party) and is Turkey’s oldest party. It has social democratic, left nationalist/sovereigntist and secularist components. As the party of Atatürk it is associated with the elites (Kemalist elites referring to Atatürk’s first name Kemal, which was his second name, but not family name until he instituted family names for Muslims) and maintained it as a secularist nation state until the AKP came to power in 2002. However, the CHP was only in government for ten years after 1950, so is associated more with a permanent ‘Kemalist’ state elite rather than government.

The third party in the National Assembly is the HDP, standing for the Turkish language equivalent of People’s Democratic Party. It is itself an umbrella party for an alliance of the BDP (Democratic Regions Party), which is based in the Kurdish southeast, with a number of small Turkish leftist parties and activist groups. It is very socialist and socially liberal in orientation though some of its base is non-leftist Kurds, including major land owning families who support BDP-HDP as a Kurdish party rather than a socialist or socially liberal party.

The fourth party in the National Assembly is the MHP, standing for the Turkish language equivalent of Nationalist Action (or Movement) Party. It goes back to the sixties and is largely what its name suggests, an ultranationalist party which has a an aggressive and even violent hard core base of support. It’s nationalism mixes ethnic Pan-Turkism (referring to Turkish peoples in the Middle East, Caucasus and Central Asia), Ottomanism, and Atatürkism (which on the whole bases nationalism on identity and culture rather than ethnic origin). Religious identity plays a role, but the MHP defines itself as following secularist republicanism. This is interesting tension with the party symbol, which is an Ottoman grouping of three red crescent moons, but that is in the nature of the MHP.

Both the AKP and MHP have a base in Turkish nationalism and Sunni Islam. The AKP has had Kurdish support but has largely lost this as it emphasises nationalism along with state action against Kurdish radicals more. The Sunni identity is partly promoted in contrast with the Alevi population. Alevis are the largest religious minority in Turkey. Defining Alevism is itself contentious, but it can be said to be either a branch of, or related to, Shia Islam, the main alternative to Sunnism within Islam as a whole. It maybe resembles Ismaili Islam, as in the community led by the Aga Khan. Christian and Jewish groups constitute no more than 0.2% of the population. At least since the sixties it has been identified with the left and with secularism, reinforcing traditional Sunni suspicions amongst religious conservatives of supposed heresy and deviant practices of various forms. The CHP core vote includes Alevis, who are otherwise likely to support HDP. The AKP and MHP support is concentrated in the central areas of Anatolia (the main land mass of Turkey), those parts of Istanbul where there has been most immigration from Anatolia, and the Black Sea coast. The CHP is geographically concentrated in Thrace (the Balkan part of Turkey) and the Aegean coast. These geographical distinctions, which of course conceal a great deal of detailed mixture at the local level, coincide with the political distinctions in which the AKP and MHP represent the most Turkish traditional and Muslim parts of heartland Turkey, while the HDP represents the Kurdish population of the southeast, and the CHP represents the more western and European oriented parts of Turkey.

The electoral threshold to enter the National Assembly is ten percent and all parties other than the four above get some mere fraction of one percent. The only party with some kind of classical liberal or libertarian foundation is the Liberal Democrat Party, which gets a small fraction of one percent.

I have tried to be concise in this summary of party politics in Turkey, but have still taken up the space of a reasonably sized post. I will return very soon to recent and current political events very soon, to be followed by some deeper history.

Coup and Counter Coup in Turkey (first of a series of posts on Turkey since 15th July 2016 and background topics)

Barry Stocker Current Events, Liberty, Politics , , , , , , , , ,

On July 15th 2016, a group of army officers up to at least the Brigadier General (one star general) level attempted to seize control of the Turkish state. On the morning of the 20th it was evident that the coup had collapsed though the government, along with its allies in the media, social media, think tanks and so on was eager to promote the idea of an unended coup which might spring back into life, like the villain in a horror film, at any moment over a long indefinite period of time. No follow-up coup materialised. The most that can be said for that unending coup mentality was that it is difficult to know how much of the army would have gone over if the coup organisation had captured or killed President Erdoğan. What the never-ending coup claims achieved was to legitimise and mobilise paranoia, intolerance, and authoritarian state reactions with regard to anyone who might be in opposition to the Erdogan/Justice and Development Party (AKP) government.

The overwhelming feeling among government supporters and opponents on the 21st was that the coup was instigated by followers of Fetullah Gülen, a religious leader who went into exile before the AKP came to power in 2002. His followers control an international network of businesses, banks, schools, and media organisations. They carefully targeted the most sensitive areas of state employment in Turkey with the goal of creating a Gülenist dominated state and were aided in this enterprise by the AKP governments who wanted a network to rival the ‘Kemalists’, relatively secular people in the state, business, media, and educational sectors. Their relationship broke down in 2013 for reasons which are inevitably obscure at present, but appear to arise from the conflicting extreme ambitions for absolute power on both sides.

The coup may have been joined by Kemalists and the coup organisers gestured towards this position when a television announcement proclaimed that the coup council name referred to a well-known slogan of Kemal Atatürk, ‘Peace at home, peace in the world’. Kemalism of course refers to the ideology of secularist nationalist republicanism endorsed by Kemal Atatürk, the founder of the Republic of Turkey. I will return to this topic in a later post, but in brief Kemalism of some kind – and there are many kinds and many grey areas – was the dominant influence in the army and allied parts of the state until recently. It is roughly analogous to the Jacobin tradition in France and in the same way has referred both to popular sovereignty and vanguardism. There are some who promoted the idea in the past that Kemalism was the problem and the AKP was the solution, and they are having difficulty in not seeing the 15th July Coup attempt as at least a Gülenist-Kemalist partnership. However, there is no evidence that Kemalists participated in any more than an individual ad hoc basis. Indeed after the 15th, retired generals associated with Kemalism were called back into service, in a process which now seems to have ended Kemalist sympathy for Erdoğan as a bulwark against the Gülenists and the PKK (socialist-Kurdish autonomy guerrilla/terrorist group), which intensified its activities in the summer of 2015.

Vast waves of arrest began after the coup attempt, which, unlike the coup itself, have not ended. For the first wave of arrests it was just about possible to believe they were genuine attempts to find coup plotters, but it quickly became apparent that the scope of arrests was much wider. President Erdoğan announced soon after the coup attempt that it was a gift of God and showed how he wanted to use this gift on July 20th, when he proclaimed a state of emergency. The state of emergency has become the means for Erdoğan to purge and punish tens of thousands who have no connection with the coup. The AKP supporters who obsessed about the follow-up coup were right, but the follow-up coup came from their own side. The state of emergency is the real coup, though it is also just a moment in the process of the creation of an AKP-Erdoğanist state, designed to facilitate what appears to be Erdoğan’s final goal (though maybe there will be others later): the creation of an extreme version of the presidential political system in which the head of state is more an elected dictator than the head of a system of checks and balances under law. More soon.

The Coup in Turkey

Barry Stocker Current Events, History, Politics , , , ,

I am based in Turkey and have been at the edge of some dramatic events. Before I was in Turkey, I was in the Turkish sector of Cyprus (officially designating itself the Turkish Republic of Northern Cyprus, but only recognised as such by Turkey), where I followed the Postmodern or Indirect Coup of 28th February 1997 when military representatives on the National Security Council were able to force the collapse of a coalition government under an Islamist Prime Minister. Later that year I relocated to Istanbul where I experienced sporadic terrorism from Kurdish separatists and Jihadists. In June of this year I landed at the Atatürk airport just after an ISIS suicide attack. In a more gradual way I saw the disappearance of a Turkish political system under the guardianship of Jacobin laicist army generals, known as Kemalists after the first President of the Republic of Turkey, Kemal Atatürk.

The changes in Turkey came about through a de facto alliance between a party with Islamist roots, the AKP (JDP, Justice and Development Party) and the followers of Fetullah Gülen. Gülen was himself a product of Nurcu Islam, which developed in the early years of the Republic before World War Two as a reaction against the state-led secularisation of Turkey. Gülen was a not very well educated preacher who operated in the context of a fragment of the Nurcu movement, which is not as a whole connected with him. Given the enormous tension between laic Kemalists and the religiously observant population, there was room for a movement devoted to developing conservative Muslim power in civil society and the state.

The Gülenists were preceded in this by the Nakşibendi community, which targeted the state bureaucracy and had followers in politics, notably Türgüt Özal, Prime Minister and then President in the 1980s. Secretive and manipulative politics has been a feature of Turkish and Ottoman politics for a long time. The power of the Janissary elite military and bureacratic corps during the Ottoman period was tied to a religious community, the Bektaşis, creating a parallel system to the legal power of the Sultan until they were violently crushed in the late eighteenth century.

The Committee of Union and Progress, which came to power with military support in the last phase of Ottoman history, developed into a conspiratorial organisation rather than a parliamentary political parry, and a secret arm of it was at the centre of the destruction of Anatolian Armenians in 1915. Secretive groups of Unionists provided a power base for Kemal Atatürk when he revolted against the restored power of the Sultanate and its subservience to the partition/occupation of what is now Turkey after World War One.

The idea of a secret part of the state was maybe not so strong during the early years of the Republic when a one-party system (though in principle the republic was under popular sovereignty) under the dominance of Kemal Atatürk and then İsmet İnönü maybe made it less necessary. Nevertheless, the conditions were established for a revived politics of manipulation behind the scenes. Unfortunately, İnönü’s decision to join the west after World War Two played a part in this. The reorientation resulted in free elections in 1950, with a change in government, and Turkish membership of NATO in 1952.

As in some other countries, the Gladio units played a role in dark political activities. These were the units established to engage in resistance in the event of a Soviet invasion. They had a secretive army within an army aspect and were inevitably a magnet for the most fiercely anti-communist officers, including Alparslan Türkeş, who played an important role in the 1960 Coup. Türkeş was expelled from the coup government, which found him too radical, but he founded the extreme right party in Turkey, Nationalist Action, which is comparatively moderate now, but was heavily involved in political destabilisation and terrorism along with the most anti-communist parts of the state.

What came later was infiltration of the state by Nakşibendis and then Gülenists. Their activity was rather overshadowed by the darker activities of the army and its extreme right allies, often also connected with the Mafia. This network is often known in Turkey as the Deep State. It tended to favour a secular democratic system in terms of formalities, but with concessions to religious conservatism along with an anything goes attitude to covert war against communists and then more importantly Marxist Kurdish autonomists, as well as very limited tolerance for the Left. The hard right element of the army with a base in Gladio was not the whole story. There were far left army officers, particularly up to 1971 and a general staff that tended to be in the middle, though the middle tended to move further right from 1960 to 1980, and then became unwilling to launch anymore violent coups after the 1980 military council stepped down in 198. The general staff itself became increasingly concerned about infiltration by Islamists, including Gülenists.

As it turns out the army’s fear was more than justified. The country liberalised, from a very illiberal base, in the late 1990s, and while the army to some degree went along with that, it launched a peaceful ‘post-modern’ coup in 1997 against the Islamists and was left with the image of the pillar of anti-democracy and anti-liberalism in Turkey. This is an important part of the background to the AKP ‘moderate’ Islamist/conservative democrat electoral victory of 2002 along with the economic crisis of 2001, which along with the 1997 coup left the secular parties very fragmented. The AKP gained a lot of liberal and libertarian support (a very small proportion of Turkey though) and more general reformist support from those who believed it would be a vehicle for reducing the military role in politics and for generally less nationalist-statist politics.

The AKP had very few supporters in place in the military, in the state bureaucracy, or in senior positions in education. The Fetullah Gülen campaign to turn his supporters into the dominant force in Turkey meant they had people in these positions, partly through infiltration of state institutions and partly through founding private educational institutions. This was just one part of the Gülen empire, which include major media groups, banks, and industrial companies in Turkey, and in many countries outside Turkey including the USA. Gülen himself moved to the USA to avoid prosecution by the Kemalist old guard before AKP came to power, claiming to have no links with the economic and educational empire of his supporters which is clearly less than honest of him.

The Gülenists expected a large role in the AKP government and served them most spectacularly in purging the armed forces after an attempted website coup in 2007. In that year the armed forces, unwilling to launch an outright coup, hoped to influence public opinion and the political process by placing a message on its website proclaiming the army’s guardian role in relation to secularism. This turned into the final political defeat of the army’s Kemalist guardian-tutelary role. The AKP won a general election and a referendum to change the method of electing the President. This triumph of civil electoral politics was, however, undermined by the trials of supposed armed coup plotters in the armed forces. Such trials gave the impression of completing the civilian dominance over the army, but were themselves rigged using weak and outright faked evidence. The judges and prosecutors were from the Gülen movement and were creating space for their own people to take the high offices in the armed forces.

The AKP began a campaign against the Gülenists after making its own illiberal core attitude very clear in 2013 in its highly intolerant and authoritarian reaction to the Gezi protest movement. It was increasingly clear to the (even then) most enthusiastic of liberal fellow travellers with the AKP that it was Islamo-nationalist and statist at its core, reducing democracy to the unlimited will of the party elected to government. The Gülenists and the AKP now found the state was not big enough for both of them and the Gülenists decided to use conspiratorial methods against the AKP. Audio files and video tapes of AKP figures and associates, which had evidently been kept in reserve and which suggested widespread corruption were released. Recep Tayyıp Erdoğan (then Prime Minister and now President) and the AKP government succeeded in sacking, retiring and transferring  enough Gülenist police officers, prosecutors and judges to stop this evidence coming to court. They then declared the Gülenists to be a parallel state and a terrorist group, entering into a process of purging the state of Gülenists and seizing their assets in the media, educational and other sectors. The coup conspiracy convictions against army officers, and others, were overturned and it became widely accepted that Gülenists had rigged the trials.

On 15th July this year, I was at a small party on a terrace in the Üsküdar district of Istanbul, overlooking one of the Bosphorus bridges, though by quite a large distance. We could see traffic interrupted on the bridge and news began filtering through of a confrontation between police and army units in what was described as an anti-terrorist operation gone wrong, but was beginning to sound like the beginning of a coup. It turned out that a coup had started and for a brief part of the night it appeared that the old Kemalist-Guardian army had come back to dispose of a government that was elected but increasingly authoritarian. Any welcome in the party where I was, of secular anti-AKP Turks and foreigners was strongly outweighed by a fear that a coup regime would be authoritarian, would create new problems, and the AKP or something like it, if not worse, would be in power for ten or twenty years by way of reaction. This turned out to be the mood of anti-AKP and anti-Erdoğan Turkey. It also became increasingly reported and accepted across the political spectrum that though the putschists had adopted Kemalist language, they were for the most part Gülenists rising up before a purge of the army in a last grasp at domination of the Turkish state.

Since then a purge has unfolded against the Gülenists in state and society, covering the universities (the sector where I work), which has already led to the sacking and arrests of about 60 ooo, including constitutional court judges, army generals and university rectors. The number will certainly at least double before the purge and the current state of emergency is over. Such sweeping action is understandable up to a point given the violent actions of 15th July, and the accumulating evidence over the years of Gülenist infiltration to create a Gülenist-controlled state and society, but clearly the potential exists for massive and systematic individual injustice with abuses of state power affecting over enemies of the state, real and imagined. Some of the language President Erdoğan has used since the coup has been highly polarising and vengeful, demanding submission to state power; some of his rhetoric has been more conciliatory, recognising that all political parties opposed the coup and that deputies across the spectrum sheltered together in the basement of the National Assembly fearing for their lives. I cannot say I am hopeful that the post-coup atmosphere will be beneficial to liberty, but we should hope for and work for the best in Turkey, while being vigilant in working against further declines of liberty.

One thing is for sure: republican politics will not come from the army now and Turkish republicanism must renew itself through engagement and re-engagement with the whole history of republican thought, which is at the origin of classical liberal and libertarian thought. In theoretical and philosophical terms, which is where I work, the discussions of republicanism and liberty going back to Hannah Arendt in the last century, along with the revived study of Machiavellian–Renaissance–Early Modern Republicanism and the way the classical liberals were dealing with the republican legacy of ancient Greece, ancient Rome and medieval city-states are particularly apposite given that Turkish politics, avowedly Kemalist or not, deals so much in a republican language of shared sovereignty and popular mastery.

Why Brexit is bad for Liberty

Barry Stocker Current Events, Liberty, Politics , , , , , ,

I have been debating classical liberalism and the European Union with Edwin van de Haar. For the moment at least, I think the debate should end or we will risk repetition of previously made points. I would like to thank Edwin for a constructive debate and to invited readers to read through it themselves. Now is the time to move onto a more concrete discussions of the UK referendum vote to leave the European Union.

The UK referendum vote to leave the European Union is not producing the consequences its most eloquent supporters and ideologues had predicted. It is of course very early to have a complete view of the consequences of Brexit, but a large part of Brexit journalistic, campaigning and intellectual elite have argued for leaving the EU on the grounds it would enable a mıore free market UK, one less burdened by regulations ‘imposed’ from Brussels.

A disproportionate part of this elite claims to be libertarian or conservative libertarian, operating in party politics via the Conservative Party and the UK Independence Party and operating in libertarian to conservative campaigning groups. Employees of the most important classical liberal and libertarian policy institutions, the Institute of Economic Affairs and the Adam Smith Institute were divided on this issue. However, some part of the Brexit elites were High Tory, that is traditionalist conservative.

The insistence on sovereignty and national institutions outweighs a commitment to free markets and individual rights. Immigration in particular comes off badly here. The High Tory narrative dominates the Brexit narrative in practice. Some Brexit enthusiasts welcome the supposed opportunity to boost defence spending (though this has nothing do with the European Union which places no limits whatsoever on national defence spending) and believe Brexit will allow restoring the UK’s Great Power status. This is already very high by general European standards and given the inherent limits of the UK’s resources compared with the USA, Russia and China, it’s hard to see how great power status could be attained and why the UK should try. It is clearly not compatible with retrenchment of the state.

David Cameron announced his resignation as Conservative Party leader and Prime Minister straight after the referendum result. His replacement Theresa May began her term of office with a speech suggesting greater state involvement in the economy and society. As Home Secretary she has a particularly illiberal record in civil liberties, immigration and drugs. She has announced support for changes in company law to force firms to accept employee representatives onto boards and restriction on takeover laws.

These measures have led the ‘Red Tory’, Philip Blond, to announce compatibility with his views and enthusiasm for her leadership. Blond runs the policy institute, ResPublica (http://www.respublica.org.uk). He was a colleague of mine in graduate programs at the University of Warwick in the late eighties, though I have not been in touch with him since. He moved from a period of research and university teaching in theology (he was studying European philosophy since the early nineteenth century when I knew him) into the policy world.

The contemporary theologian who influenced him most is John Milbank, an adherent of a version of the Christian tradition which tends to advocate community above individual, or at least would seem to do so if its social philosophy is turned into state enforced actions. There is a strong element of Medieval nostalgia for an organic society in Blond’s social and political thought. He is arguing for less not more free markets and individualism. Now there is no reason to think that Blond’s ideas will have a major influence on May, but if he feels so comfortable with her then that is reason to think there will be strong streak of communalist conservatism in the post-referendum government and even a hint of Christian socialism.

May’s approach has also been compared to that of Joseph Chamberlain, a nineteenth century advocate of interventionist local government and then of a protectionist, state-welfare orientated British Empire; he was as well considered by some to be the strongest advocate of Empire ideology in his time.

Even the Brexit supporters who have the strongest free market small government history have come out in favour of interventionist and corporatist polices. Allister Heath, a senior member of the Daily Telegraph staff, who has a reputation as a free market advocate published advice to Theresa May which is anything but free market, full of corporatism and buying off people who might be relative losers in the post-Brexit UK.

Previous free market advocates, who found it easy to be advocates when the EU served as a scapegoat for any and every overextension of state activity in the UK (whether or not in reality it originated with the EU), have become less clear in their commitment given that some EU support for open markets, such as bans on subsidies to keep bankrupt companies afloat, are no longer available. With some institutional supports for free markets removed, the Brexit liberty advocates find themselves in a world of paying off voters who voted for ‘leave’ because they don’t like ‘neoliberalism’ and blame any difficult consequences of technological invention and market innovation on Brussels Bureaucrats along with immigration from EU countries.

One key theme of the more ostensibly libertarian parts of the ‘leave’ campaign was to argue that they did not want to reduce immigration, but globalise it by replacing automatic rights of EU citizens to live in the UK with an Australian points system, which allows people to enter from anywhere in the world who has sufficient points with regard to educational level, scarce skills, money to invest and so on. However, it is clear that many ‘leave’ voters just want a reduction in immigration and May has distanced herself from a ‘points’ system in favour of absolute reduction.

The ‘leave’ vote won based on the anti-immigration, anti-globalist and anti-‘neoliberal’ instincts of a significant section of the ‘leave’ vote. It is not the whole of the ‘leave’ vote, but  ‘leave’ could not have won without it. The evidence so far is that whatever the intentions of the libertarian to conservative element of ‘leave’ thinking that the government is now driven by the wish to follow that aspect of public opinion. The UK is headed towards communalist corporatism, or even protectionist/mercantilist, security-state Great Power nationalist versions of conservatism. Clearly there is much work for liberty advocates to do in the UK counteracting this disaster.

Reply to ‘Classical Liberalism, Cosmopolitanism and Nationalism’

Barry Stocker Current Events, History , , , , , , , , , , ,

I write in reply to Edwin van de Haar’s post ‘Classical Liberalism, Cosmopolitanism and Nationalism’, which contains some generous remarks about my social media posts while putting forward a view different from my own about the role of the nation state. Edwin argues that the nation state is foundational to classical liberalism in that post. I have previously argued for the benefits of the United Kingdom staying in the European Union, just before the referendum which has put the UK on the path to leaving.

I will start with the doctrinal issues of how far classical liberalism might be considered as something that is embedded in the emergence of the nation state as we know it. It is true that classical liberalism arose as the nation state emerged and consolidated and it did not occur to classical liberals, on the whole, to question the state system as they knew it. That is a system defined in early modern natural law and contractual theory about law and state as one of a very unified system of sovereignty in a world of ‘a state of nature’, anarchy, or lawlessness between states.

We have to note at least one major deviation in the familiar list of classical liberal authors, which is Immanuel Kant, thinking of his essays ‘Idea for a Universal History with a Cosmopolitan Purpose’ (1784) and ‘Perpetual Peace: a philosophical sketch’ (1795), which do not question the internal  sovereignty of states, but does argue for a law governed set of relations between states with a global institution of some sort to prevent republics going to war with each other.

We should consider John Stuart Mill’s thoughts on federal states in Considerations on Representative Government (1861), particularly chapter XVII, ‘Or Federal Representative Governments’ which looks at the possibility of a state with decentralised decision making functions. A nation state can be federalised, at least in principle, but what are the components of the federation other then sub-nations, where the population may even regard them as nations within the state. Mill was building on the experience of the United States since the constitution of 1787, and Switzerland, particularly since the federal constitution of 1848.

The United States and Switzerland did not come out of nowhere. The US consolidated the links between thirteen colonies of Great Britain while federal Switzerland built on the Swiss Confederation and its links with places like Geneva which were associated with the confederation, but were not part of it until the restructuring of European states in the Napoleonic period. The point here is that modern states may be federal as well as unitary states and that includes continuity with pre-modern links between at last partly self-governing regions-nations. We could even say that kind of state of associated states was the Medieval norm.

The example, and even idealisation, of this Medieval structure enters classical liberalism via Montesquieu’s The Spirit of the Laws (1748), along with the work of Swiss jurists of the time, particularly in Berne. Montesquieu was building on the experience of the kind of medieval and early modern monarchy where he thought there was liberty, moderation in government, distinguishing it from tyranny. In such situations different laws and assemblies for towns and for historic regions was quite normal under the monarchy. In so far as such states, like France, were tending to evolve in states based on the absolute sovereignty of the centre, in the formation of what we call a nation state, Montesquieu saw the danger of despotism.

The historical experience that Montesquieu was drawing on was the way that Medieval monarchies were constructed through assembling  patch work of  the monarch’s personal domains, regions with their own lords and institutions, and church domains, along with increasingly self-governing towns. He also looked at the antique experiences of allying republics in a federation, which he thought was preserved in the Netherlands and Switzerland of his time. Germany, which at that time was a kind of federal/confederal empire of very varied forms of sub-imperial sovereign units including princes with lands outside the Empire, was also a form of federation for Montesquieu.

If we go back to the German history of the century before Montesquieu, the idea of the modern nation state is strongly associated with the Treaty of Westphalia (1648), which ended the Thirty Years war, focused on Germany, but drawing in most of Europe. ‘Westphalian state system’ has become a label for an internal system of states which are completely sovereign internally and face each other as equal legal personalities with no higher instance of sovereignty or collective instrument for enforcing the laws of nations, which do have some basis in the natural law doctrines of the time, and earlier.

The trouble with this understanding of Westphalia is that though it has some truth for Europe outside the German Empire (officially known as the Holy Roman Empire), it is very misleading for the Empire, and therefore for those European powers, including Sweden and Denmark, which had land within the Empire. The princes, cities and other territorial units within the Empire were under the legal authority of the Emperor, who largely served as a judge of interstate disputes though with far greater powers in the lands of the Habsburg family (consolidated as the Austrian Empire in the Napoleonic era) which always had the Emperor, though the Emperor was legally an elective office. The Habsburgs land extended outside the Empire into central Europe so the Westphalian system of Imperial authority brought in other European nations and extended outside the Empire strictly speaking.

Westphalia modified a system rooted in the Middle Ages of Germany as a middle European federation or confederation, drawing in other parts of Europe and therefore anchoring a European system of some kind. Periods of dominance by France or Spain complicate this story, but French claims always overlapped with Imperial claims and the peak of Spanish power was when the Spanish monarchy was from the same family as the German Emperors.

The Napoleonic era disrupted these arrangements severely, but we can see Napoleon as trying to revive the original Empire of the Romans under Charlemagne in the ninth century, which united France, Germany and neighbouring territories under a Frankish over-king. Charlemagne was know as ‘father of Europe’ in his time, perhaps more in connection with Europe as Christendom and his wars against Muslims in Spain, then with Europe as we might think of it now, but this is part of the story of what it is for there to be a Europe and a European system. Coronation by the Pope and recognition of the Frankish kingdom as heir to ancient Rome connects the medieval German Empire with the first great European political system, the Roman Empire.

The aftermath of the Napoleonic period in Germany was a confederation, which again included those European powers (the United Kingdom was one) which had lands in Germany. This evolved into the German Empire founded in 1871, which was itself an extraordinary mixture of Greater Prussia, federation, democracy, aristocracy, monarchy, and so on. It was more of a nation state than German predecessor systems in that it was a sovereign unified part of the international state system. The size and growing economic power of the Kaiserreich, incorporating Polish, French and Danish speaking areas, made it a destabilising force in Europe. Too big for the security of other European states, too small to anchor a European system.

The First World War and the Second World War were both consequences of this unstable system. The European Union is in large part an attempt to solve the problem by creating a European system which Germany anchors, though since unification the dominance of Germany has become an issue again. Whatever the problems, the EU provides a better framework for structuring a European system in which Germany is both contained and can exert influence in a consensual manner.

Returning to the issue of the nation state, Germany was never a nation state in the strictest sense of a very unitary state with a single language and ethnicity. France has usually been taken as the model of the nation state ‘strictly speaking’, but even so it has only been a country of speakers of standard French since the late nineteenth century. As it is now, it includes speakers of Breton, Basque, Occitan and Alsace German. Corsica has special status and Alsace-Lorraine also has some special arrangements in recognition of its specificities.

The European world before the First World War was more of a Europe of multi-national Empires than nations, with four Empires (German Hohenzollern, Austrian Habsburg, Turkish Ottoman, Russian Romanov) dominating the centre and east. Spain in practice has always been an extended Castille in which other regions-nations have played variable distinct roles. The United Kingdom never completely integrated as a nation state; even at the peak of integration in the nineteenth century, Scotland kept its own legal, state church and educational system and since then in a rather complicated way the UK has become more loosely integrated and may lose Scotland in a few years.

Even with the imminent departure of the UK from the EU, Europe continues to be a political system, not just an aggregate of nation states. The larger European states are not nation states in the strictest sense. Even without the EU, European states accept various kinds of obligation with regard to north Atlantic security and global trade which limit sovereignty. The UK will negotiate some kind of membership of the internal market of the EU and its passport union aspect, as well as participation in various EU schemes. It will therefore continue to be part of a European system anchored by Germany.

Ever since the Romans, Europe has needed a European system of some kind, and the German anchor schemes going back to 800 have recognised the Roman precedent. In reality there has never been a Europe of nation states and the periods closest to that model ended in catastrophic wars. Disaggregation of the European system as it is now may not result in war, but it has the potential to unleash trade wars, protectionism, competitive currency devaluation, erosion of chances to live, work, and study abroad, associated labour market sclerosis, destabilising struggles for political-diplomatic dominance, and an incapacity to ally in order to deal with global and strategic issues affecting Europe, including migration flows, Russian expansionism, and Middle Eastern conflict and terror.

(more on the consequences of the UK leave referendum soon)

The Case for the UK staying in the EU

Barry Stocker Economics, Liberty, Politics , , , , , , , ,

Leaving the European Union would not be a gain for liberty in the United Kingdom. This is true as a matter of general principles and is reinforced by the nature of the Leave campaign which has targeted sections of the population hostile to immigration, open markets, and free trade. Much of the Leave campaigning which has not appealed to such base arguments has at the very least appealed to a version of populist democratic sovereignty at odds with the restraints on government and the state at the heart of classical liberal and libertarian thought.

Even if we try to separate some pure classical liberal version of the Leave campaign from the crudity of the campaign, as some natural supporters of leave wish had happened to the extent they ate voting for Remain rather than go along with such an obnoxious campaign, we are still left with the question of why it liberty advocates should support Leave.

I have sometimes seen references to national sovereignty as a classical liberal doctrine. If this means never sharing sovereignty at a transnational level, then it is simply a false claim. Immanuel Kant advocated a world federation to prevent war. Kant is not often put at the centre of the history of classical liberal thought. His ideas about political institutions, individual rights, and the limits of government certainly belong in the classical liberal sphere. We should distinguish between what Kant said and what later German Idealists said, a rather big issue, and appreciate how close he is to the way of thinking of Montesquieu and Smith and even advances upon them in showing a clearer understanding of the role of representative assemblies in modern politics.

More recently F.A. Hayek advocated federation between liberal democracies. The creation and evolution of the European Union has been and continues to be supported by European political parties of a classical liberal persuasion, those liberal parties which remained most true to the principles of their nineteenth century founders and precursors. Thinkers on the left, like Albert Camus and George Orwell, known for their particular commitment to liberty and their opposition to an authoritarian state were enthusiasts for European integration. Many conservatives of the more free market and limited government sort like Ludwig Erhard (founder of Germany’s post-war, post-Nazi market economy) and John Major (UK Prime Minister from 1990 to 1997, who went further than Margaret Thatcher in privatisation and deregulation) have been and are advocates of the European Union.

The unrestrained sovereignty of the nation-state is not only not an inherently liberal idea, it is dangerous to liberalism. There is nothing illiberal in transnational rules and institutions that restrain states from violence against their own citizens, attacks on individual rights, economic protectionism, and market rigging. The European Union is particularly successful with regard to the economic and market issues at the national level.  It adds huge institutional weight to the work of the Council of Europe which promotes human rights through its court in Strasbourg. The existence of the European Court of Justice is of profound importance in ensuring that national governments and peoples are accustomed to regarding the decisions of nation states as subordinate to and accountable to a judicial process enforcing transnational laws.

The EU is open to a great deal of criticism with regard to its tendencies towards over-regulation, but this represents the median attitude of the member governments, not an imposition on the nation-states of Europe. Since the UK economy is at the more free market deregulated end of the European Union, there is some plausibility in saying the UK might go further down that road if it left the EU. However, before it joined the EU it was looking less market oriented than the EU states of the time. The period during which the UK has moved from the more statist to the more limited state end of the European nations has been during the period of EU membership. The precedents do not favour the UK becoming more classically liberal because it leaves the EU and the Leave campaign has appealed to the most insular, nationalist, anti-immigrant, anti-foreigner, and anti-free trade sections of the UK population.

It is possible to imagine the UK as a more libertarian kind of place in the EU, but a much more plausible use of the liberal imagination is to think of ways in which the UK can work with allies in the EU for a a less regulatory and centralised EU. This has already worked as in the adoption of the European Single Market and the diminishing role of the European Commission, the ‘bureaucratic’ part of the EU. The Commission employs as many bureaucrats as the larger local government units in the UK and is tiny compared with any national bureaucracy. Its members are nominated by national governments subject to confirmation of the European Parliament. Power has shifted from the Commission to the bodies in which national government representatives meet, the European Council and the Council of the European Union.

The Leave campaign in the UK, including self-styled free marketers in the Conservative Party, is committed to leave the Single Market as well as the European Union itself, in large part to terminate free movement of EU citizens across its borders. The reasoning offered to prevent this movement of human capital is in terms of anti-foreigner sentiment. This is not something than can be recognised as a pro-liberty program. The pro-liberty choice is to keep free movement of goods, investment, and labour within the EU while working to reform the more interventionist tendencies of the European Union, to stymie the regulatory drift which started hitting industrial market economies decades before the EU was created and which cannot be solved by smashing up the EU.

Liberty and the Novel II (Austen and After)

Barry Stocker Culture, Liberty , , , , , , ,

(Click for Part I) In Austen’s novels, we find something ‘unheroic’ in that they are concerned with the search of upper class women, bound by codes of gentility, for both a satisfying place in the world and emotional authenticity through marriage. Though there is none of the religious fervour of Pilgrim’s Progress, the message is sent that an ideal community is a small rural community guided by sincerely godly priest, concerned with the daily lives of his congregation.

There is none of the extremism of Quixote’s fantasies and adventures, but the simultaneous process of  triumph over illusion and the growth of inner authenticity, is there in Pride and Prejudice, Sense and Sensibility, Mansfield Park, Emma, Persuasion, and Northanger Abbey, as the characters find marriages worthy of their growing ethical capacities in self-judgement and judgement of others.

Ethical growth means confirming a place in the landowning classes and taking a decidedly ambiguous attitude to making new money in trade. Landed property and religion are the starting points of an ethically tolerable community for Austen. We can see the growth there of what we might now think of as social and political values based on self-ownership and individual responsibility though somewhat constrained by respect for earlier aristocratic expression of these values.

We can see a version of Lukács’ split between heroic progressive bourgeoise and backward looking conformist bourgeoise there. Though it is absurdly crude to take 1848 as the line of of separation between the two tendencies, it is useful to think about the distinction as it evolved over time, including the events of 1848. Over time the basic bourgeois goals of rule of law, individual rights, representative government, and free trade tend to be achieved. The word radical is used less and less for the advocate of bourgeois individualism and more and more for advocates of a socialist state.

In literature the themes of the individual triumphing over circumstances, enduring disaster, awaking from illusions, developing individual moral strength, and finding some moment of authenticity continues. The novel keeps developing as a form, but in many people’s opinion, including my own, it reaches a peak in the early twentieth century (James Joyce, Franz Kafka, Marcel Proust, Virginia Woolf, Thomas Mann) which it has never matched, though ambitious and admirable novels continue to be written.

The more straight forward kinds of heroism are not so prevalent as in earlier novels, but the irony and ambiguity about heroism develops what was already in the genre and intensifies individualism, even while questioning it. Some of these writers were sympathetic to socialism though born into a largely bourgeois liberal world, at least compared with developments after World War One.

Coincidentally or not, this coincides with the transitions from a limited-state individualist nineteenth century liberal politics to the welfarist-administrative state we now know and which is stronger than ever, despite all the cries of ‘neoliberalism’ and ‘market fundamentalism’ that arise in reaction to any attempt to limit the statist drift.

There is a danger of rivaling Lukács’ tendency towards a moralising tendentious Marxism from a pro-liberty point of view, but I am anyway tempted to say that the reduction of the significance of the novel is a symptom of societies which aim to remove individual responsibility in the struggle with circumstances. Or I can put it in terms more amenable to those who welcome the welfarist-administrative tendency. The novel has lost some part of its significance as individualist ways of thinking are less influential in politics.

In fact I can wholly agree with this stereotypical imaginary progressive that Ayn Rand’s attempts to revive the grand individualist heroic aspects of the earlier novel are rather embarrassing. The Peruvian novelist Mario Vargas Llosa (Aunt Julia and the Scriptwriter, The War of the End of the World, The Feast of the Goat, etc), who is an eloquent liberty advocate, is a far better novelist, and is as good as anyone currently active, so still not rising to the level of the Modernist greats of about one hundred years ago. Liberty advocates are also part of this cultural shift or loss, however you prefer to see it.

(crossposted at Stockerblog)

Liberty and the Novel I (Before Austen)

Barry Stocker Culture, Liberty , , , , , , , , ,

I’ve been working on Jane Austen and ethics recently. These ethical investigations have overlapped with considerations of politics and liberty, with regard to the progress of such ideas in the early nineteenth century when Austen was writing, along with the immediately preceding and following periods.

There is a well known Marxist view of the history of literature, which is that the novel (and other literary genres, but mostly the novel) can be seen as developing along with the development of the bourgeoisie, so that is progressive and emancipatory until the turning point year of 1848 when the bourgeois class at least in part turns against the progressive-democratic, working class, and national revolutions of the European Springtime of the Nations.

At this point the capitalist class flees from democracy, allying with the royalist and aristocratic forces to prevent a revolution that might overturn property relations as well as pre-democratic political forms. After 1848, the novel largely becomes inward looking and alienated from social reality, because of the ties of writers and readers to a bourgeois class trying to hold back socialist working class politics, or at least fears to ally with it.

The classic exponent of this view is the Hungarian philosopher Georg Lukács who was born into the Habsburg Empire and so wrote in German, very much continuing themes from German language philosophy, literary studies, and social science. The relevant texts include The Historical Novel and Studies in European Realism.

I do not write to advocate Lukács’ literary history and of course even less do I advocate his Leninist politics. However, he undoubtedly makes an important contribution. Not many people now, Marxist or otherwise, would advocate the more schematic elements of his literary history. Nevertheless he was continuing ideas he had before his turn to Marxism, as expressed in Theory of the Novel and Soul and Form and he was onto something with regard to the heroic and less heroic phases of literature.

The novel itself has non-heroic and even anti-heroic aspects. If we take Miguel de Cervantes’ Don Quixote (1605 and 1615) as the starting point of the modern novel, a debatable proposition but not outrageously so, then the novel is something that starts with the mockery of the heroes of medieval knightly romance through a character trying to imitate them in real life Castile. It is a crude piece of social history to say this, but nevertheless it is roughly true that Don Quixote coincides with the growth of commercial Europe, trading across the Mediterranean and the Atlantic, as there is a growth of cities along with the increase in membership of the merchant and financial classes.

This is the sweet commerce rightly advocated by Charles-Louis de Secondat, Baron Montesquieu, but also the violent consolidation of European states and the growth of their overseas empires. This is not all pleasant, but then that makes it to some degree ‘heroic’, as heroism refers to struggle and triumph with limited regard for other concerns. The ‘heroism’ of Quixote is to observe the Spain of his time in his bizarre adventures, learning from experience and awakening from his illusions, if only on the point of death. He becomes disillusioned by experience so achieving a more inner awareness freed from the illusions of romances in an idea of authenticity which has its own romance. A romance that is very visible in the subsequent development of the novel.

Other inputs into the development of the novel include John Bunyan’s The Pilgrim’s Progress (1678), a religious story from England of salvation in an allegory focused on a hero called Christian. There was nothing new about texts of salvation, but this is a novel length narrative devoted to individual struggles with externalised representations of distractions from faith. It was read very widely in the English speaking Protestant world, turning theological concerns into a popular heroic narrative of release of the self from ungodly illusions, and references to it abound in later literature of a kind less guided by strict Reformation Protestantism. (to be continued)

Also posted at Stockerblog

Assessing Elections in Poland and Argentina in the Context of Populism and Liberalism in Europe and South America II (liberalism in the classical sense of course).

Barry Stocker Current Events, Liberty, Politics , , , , , , , , ,

The Argentine election was for the state president, who is head of government as well as head of state. An expected first round victory for the Peronist party (formally known as the Justicialist Party) candidate Daniel Scoli disappeared as he failed to clear 45%. He is clearly ahead of Mauricio Macri, Mayor of Buenos Aires, running on behalf of a three party centre-right alliance which contains the less statist, and populist elements of Argentine politics, but at least the hope exists of a second round triumph over the Peronists.

The third candidate is also a Peronist, showing the difficulty of overcoming that legacy and why even just turning the Presidential election into a competition between a Peronist and a non-Peronist is a victory of some kind. The sitting President Christine Kirchner pushed at the limits of the Argentine constitution, which prohibits more than two terms for any President, by alternating in power with her late husband Nestór Kirchner. If he had not died in 2010, we might now be looking forward to a fourth consecutive term in power for team Kirchner.

Peronists or the army have run Argentina almost constantly since the 1940s. The periods of army rule give a good indication of how successful Juan Perón and his widow Isabel (the third wife) were in stabilising Argentine society and political institutions. Nevertheless the Peronists have been the only party with a record of electoral success in Argentina and have improved from the chaos that Juan and Isabel instigated in more recent appearances in government.

As such a dominant party they have relatively centrist technocratic elements (most notably ex-president Carlos Menem) as well as the hard core statist populist nationalists. The Kirchner years have tended increasingly towards the more populist end, stoking nationalist sentiment over the islands in the south Atlantic known in Argentina as the Malvinas and in the UK, which has sovereignty over the islands, as the Falklands.

There has been economic growth under the Kirchners, but it has now very much slowed as policy has tended towards high inflation, currency controls, confrontation on debt owed to foreign creditors and increasing budget deficits. There has been social liberalism, most obviously, on attitudes to the LGBT communities, but in a context of nationalist sovereigntist politics. At least we can hope that if Scoli wins, he will feel obliged to shift towards genuine economic sustainability and a less populist politics.

In general, this adds to a feeling that South America has passed the peak of leftist populism which has influenced most countries outside Colombia in the last two decades. The more respectable end of that spectrum in Brazil’s Workers’ Party, which had been fairly successful economically, appears to be declining under the weight of corruption scandals, economic recession and incapacity in delivering on the more populist side. On the less respectable side, Venezuela has lost its status as model for the world’s radical left as corruption, economic decay, state brutality, election rigging and persecution of the opposition has become too extreme to ignore, particularly since the state socialist hegemony no longer has Hugo Chavez as a charismatic frontman.

Brazil and Venezuela were the models of the left, reformist and revolutionary respectively, and no longer have that status. If there is a model now it is the Evo Morales Presidency in Bolivia, which in some respects is radical left, but not consistently enough to get the kind of model status previously accorded to ‘Lula’ (now caught up in corruption scandals as his successor Dilma Rousseff) in Brazil and Chavez in Venezuela (whose successor Nicolás Maduro is a blatant and charmless neo-Stalinist thug-apparatchik). The Morales regime has received some cautious support from those inclined towards liberty on the grounds that he has pursued an overdue reduction of the power of traditional rent seeking elites in Bolivia and engaged in an economic pragmatism certainly distasteful to former Chavez admirers, and not even entirely comfortable for former admirers of Lula.

The leftist populist tide in south America has not entirely receded, but is now discussed with increasing nostalgia and an increasingly elegiac tone by left socialist observers, and as it has receded has tended to leave only embarrassments for the socialist left or reformist pragmatist examples of at least some interest to the liberty community. We are not looking at a strong shift towards liberty in all its forms in that region, but at least we see some shifts opening the possibilities of new movements towards liberty in markets, rule of law, individual rights, and social openness.

Assessing Elections in Poland and Argentina in the Context of Populism and Liberalism in Europe and South America I (liberalism in the classical sense of course).

Barry Stocker Current Events, Liberty, Politics , , , , , ,

Election results I’ve seen today from weekend elections in Argentina and Poland and the more general thoughts they have inspired. Rather longer than I anticipated so posted in two parts, though not separated in time given that I am articulating immediate reactions.

The Polish parliamentary election has been bad news for those who share the perspective of Notes on Liberty in that Law and Justice, a social-national-religious sort of conservative party with strongly statist and populist inclinations, has taken over from the more open market/open society inclined Civic Platform. However, a new party, Modern (strictly speaking ‘.Modern’, but I’ll ignore that in the future as too likely to be mistaken for a typo, it is at least worth noting as suggesting a technocratic commitment to a digital age, reminiscent of the development of the e-state in post-Communist Estonia) which leans towards liberty in economic and social spheres, in comparison with most of Civic Platform and even more in comparison with Law and Justice, has entered the National Assembly, compensating for some of the votes lost by Civic Platform to the populist right.

We might at least hope that the next election in Poland produces a coalition government between Modern and Civic Platform, and hope that Law and Justice does not do too much harm during the coming years in which it will control the government and the (non-executive) presidency on its own.

The Polish political party structure has been confusingly variable since the end of Communism, with names of politicians reappearing from now extinct parties in new parties gathering a different if overlapping spectrum, and with different international partners. Modern’s leader, Ryszard Petru, is at least connected with the early phase of post-Communist politics as a disciple of Leszek Balcerowicz, who played a leading role in the transition to market capitalism and the earlier phase of liberal-centrist politics. Both Petru and Balcerowicz are ‘Europeanist’ in the sense of taking a positive attitude to the European Union, which is also the outlook of Civic Platform. Balcerowicz is even director of the College of Europe, a postgraduate institution in Bruges, Belgium, which educates many of those working in European institutions and in their general atmosphere.

This illustrates a major claim I put forward here about European politics, that is of a drift of market liberals, classical liberals and libertarians towards advocacy of the European Union, and an increasing tendency of the ‘Eurosceptic‘ right, even those with some libertarian-conservative history, to be caught up with hardcore populists even if some of the Eurosceptic right has pro-liberty inclinations. That part of the European right has always been more libertarian-conservative than libertarian-cosmopolitan.

The leading ideologue of libertarian-conservative Eurosceptics in Britain, Conservative Party Member of the European Parliament, Dan Hannan is very touchy about suggestions of backward looking nationalism and chauvinism, emphasising a cosmopolitan family background. However, despite these protestations, Hannan is a great believer in the superiority of British (and Anglosphere) ways, and in addition has always been for ‘democratic controls on immigration’, i.e. populist limitations on the market in labour and individual rights to mobility. The second leading British ideologue in that spectrum, and previously a close associate of Hannan, Douglas Carswell has joined the the United Kingdom Independence Party (UKIP), which has unmistakably populist inclinations in economic and social policy beyond restrictions on immigration. Hannan prefers to praise UKIP as ‘patriots’ rather than confront this.

Hannan engineered the formation of a eurosceptic right group in the European Parliament after David Cameron was persuaded that leaving the main centre-right group (European People’s Party) was a necessary price for keeping Tory Eurosceptics acquiescent with his leadership. Hannan’s European Conservative and Reformists Group does not include Modern or Civic Platform, but it does include Law and Justice, which gives a good idea of what part of the European political spectrum it appeals to, i.e. not those inclined to social and cosmopolitan liberty. Most disturbingly associate members include the Justice and Development Party in Turkey, i.e. the AKP of Recep Tayyıp Erdoğan associated with corruption, police brutality, politicisation of the judiciary, social media blocks, attacks on the media and all free speech, along with the demonisation of anyone not part of the more conservative parts of majority Turkish culture.

The idea that liberty can be combined with Eurosceptic discourse is declining, though it has been influential in some libertarian circles, particularly in the UK and Slovakia to be the best of my knowledge. There has been a recovery of pro-EU views (if highly qualified by the wish for reform) amongst the Greek liberty community, even after the recent Euro currency disasters. The Slovak eurosceptic libertarians seem to have collapsed. The Czech hero of European right wingers of that tendency, Vacláv Klaus, has turned out to be a harsh social conservative and Putin fellow traveler of a type obnoxious to the anyone of genuinely pro-liberty tendencies, leading to his exclusion from polite libertarian circles as seen in the loss of his Cato fellowship. A warning there surely about the perils of regarding the sovereigntist eurosceptic right as natural allies of liberty. Personally I believe the same applies to the Republican right in the US. That is of course another story, but just look at Donald Trump’s ascendancy and think about that. The German Free Democrats are making a come back after a period it seemed they might lose the most economically free market part of the electorate to AfD.

Small indications in some cases, but it all adds up to an overall and increasingly dominant picture (though course with exceptions) in which consistently pro-liberty forces support the European Union, which is very much the case in Turkey, even if desiring considerable reform. The strengthening of the populist right (Northern League in Italy, National Front in France, Swedish Democrats, Golden Dawn in Greece, Freedom Party in the Netherlands etc as well as those already mentioned) together with a populist-socialist surge has pushed those engaged with a consistent politics of individual rights and cosmopolitan openness towards a pro-EU centre.

The left populist surge has already receded in Greece where Syriza is in transition to standard social democracy while still using a more radical rhetoric, but has some energy elsewhere in Europe: Podemos in Spain, two left of social democracy parties in Portugal, Sinn Fein in Ireland, Jeremy Corbyn’s election as Labour leader in Britain. The left populist surge is less strong than its right wing equivalent and despite what the socialist intelligentsia in the UK believe the socialist surge within the Labour Party does not reflect a broader shift in British public opinion. Anyway, we are in a period where pro-liberty forces are coalescing with centrist forces in defence of a continuing EU of some kind, with some limitations on national sovereignty, not completely closed to refugees, not in thrall to an enclosed defensive traditionalist, legacy Christian identity politics.

European Union: Creative Destruction Wave?

Barry Stocker Current Events, Politics , , , , , ,

Some thoughts in reply to Edwin’s recent very interesting piece on the European Union.

The Greek crisis, the refugees crisis and the recently announced German suspension of the Schengen agreement on free movement are all very testing for the European Union. I certainly agree with Edwin that ideas of a highly integrated European Union superstate are in a bad state, but that has been the case for some time now, it is just that some European Commission people and ‘federalist’ enthusiasts have been very slow to realise this. I put ‘federalist’ in the scare quotes because ‘federalist’ can mean so many things as a form of relation between existing states and should not be only identified with highly integrated forms of federation in which the central state is dominant. Any such idea was effectively killed off  years ago by a mixture of British opt outs from the Maastricht Treaty and the Danish referendum rejection of that treaty.

Of course these were thought by some to be secondary events which could be given temporary ad hoc solutions while the integrated superstate juggernaut rolled on. It is worth remembering that the phrase ‘ever closer union’ was in the Maastricht Treaty as a substitute for ‘federalism’ at the insistence of John Major (the then British Prime Minister) as a way of signalling the end of federalist ambitions. Since ‘ever closer union’ is open to not just integrated federalist meanings, but even unitary state interpretation, this is perhaps a bit strange, but the fact is the phrase signalled an end to integrationist federalist dreams in which John Major was probably quietly supported by some other states (including the Netherlands I believe) which did not want to stand out as anti-superstate. All this created the illusion of a process that only the UK and Denmark were standing aside from and they could be expected to join in later.

However, the integrated superstate model of federalism was already a paper tiger, a rhetoric only used as a way of legitimising a Franco-German dominated Europe, in which EU unity was heavily dominated by the wish to keep the French-German partnership going and offer everyone else the hope of a voice in an essentially Franco-German dominated process in which the two key states sought trade offs between individual national goals. Events since then have unravelled the superstate ideology as the French-German partnership has been reduced in importance by German unification, with some help from French failures at internal reform. The emergence of a reality concealed by the older sort of ‘federalist’ language can be seen in the referendum ‘no’ to the Lisbon Constitution in a few countries and the move to a Treaty. The Lisbon process was one of shifting power to the Council, to the place where intergovernmental decisions are made. The Eurozone upheavals have made it clear that Germany has a role in the EU unmatched by France.

On the current refugee crisis, the suspension of Schengen free movement is very disappointing, but an unavoidable response to such a massive tide of refugees. To my mind it may well be possible to integrate them, but clearly it is a challenge and clearly it is a challenge that public opinion does not seek, or not beyond some defined number of the most ‘real’ refugees. Anyway, this is not a completely new problem for the EU, France for example, has previously imposed border controls to deal with migrant influxes and deported unemployed migrants from eastern EU member states. This is a crisis situation which would exist with or without the EU and would lead to exceptional measures with regard to external border controls and internal security measures, including checks on identity papers. So I suggest it is not in itself an end to free movement within the EU, but more an indication that free movement will be subject to qualification in any foreseeable future. That still leaves the very real achievement of the EU in making movement between states easier, with all the attendant benefits for individual liberty and prosperity.

The Greek crisis has emphasised a form of economic integration in the Eurozone dominated by Germany, which is not what anyone would have put on paper as a federalist dream, but the reality is that the Eurozone was always about turning the Deutschmark into a European currency in which all members would benefit from the German reputation for sound finances and a strong currency, and therefore a de facto agreement to be subject to German economic discipline. No one used those words in public and everyone hoped that the crisis situation in which someone would have to impose order would never arise, but it has and we can see what was really been agreed to in the first place. That arrangement has worked at least moderately well so far. Ireland has actually done very well out of going along with German economic discipline. Italy, Spain and Portugal at the very least seem to have got past the worst. Greece is the most dubious case, but wild left populism has now receded in that country and that must be a success for the German led Eurozone. We are waiting to see whether the deal works in the long term in Greece. This does not have to be a complete German hegemony. In defence and foreign affairs, for example France and the UK are still strong compared with Germany.

The current regional tensions make it unlikely to my mind, as Edwin suggests, that the EU will not develop in the foreign and defence spheres. It would be more accurate, I believe, to say that the EU will develop an opt in personality in these areas in which not all states participate, but the core makes the EU more important in that field. Putin’s direct and indirect provocations, the nightmare in Syria and Iraq, and the threat of Islamist fundamentalism in west Africa, have all pushed EU states and previously neutral European states to become more engaged with security and defence issues. Now of course NATO is important here, but US willingness to look after Europe’s security for it is in decline and rightly so.

A response to the dangers I’ve just mentioned requires increased defence spending and and co-operation for European states and we can see this happening. Some of it cuts across the EU, as in co-operation between Nordic countries including Norway, which is outside the EU, but does not separate defence from the EU sphere. The membership of previously neutralist Sweden and Finland in the EU is clearly helping them co-operate with NATO countries. EU states are increasingly working with regard to a total European defence presence in which smaller states will limit the military spheres which the operate so that there is a co-ordinated division of labour. The UK is engaged in co-operation with the EU states on the border and hinterland problems in eastern Europe and the Middle East and this is likely to be a way over time in which the UK becomes more European oriented. This is a gradual process in which we will not see a Euro-army and a treaty in which the EU becomes sovereign in security matters, but we will see the EU mattering more in the defence and security sphere. One of the factors contributing to this is the refugee crisis.

Edwin raises some issue of (classical) liberal thinking in these areas and that is the final topic I will address, hopefully providing a framework for addressing the public policy and institutional issues above. Edwin is correct to say that voters want to see some important issues addressed on the national level and feel remote from the EU level, but let us be clear about what this means in reality. No individual voter has more influence over national policy that EU policy. Even in Luxembourg any one voter has no real voice, does not make a difference, in a community of three hundred thousand. There is no real difference between Luxembourg and the 500 million of the EU on this issue.

What people like when they think of the national level is that decisions are made by people like them, people with whom they can identify. Immigration and other forms of social change which undermine notions of self-contained homogeneity, such as the Internet, increased travel, decreasing identity with national religion, and regionalist movements, do not put am end to national identity, but they do qualify it. The recent EU crises have increased the visibility of European leaders across the continent, Angela Merkel must be more familiar to most Europeans than all but a handful of their own national politicians. The national level will  not disappear and we will probably seem more shifts towards national and inter-governmental decision making, but let us not ignore the qualifications and opposite tendencies.

The point of the above paragraph is that we are not returning to the time of absolutely sovereign national governments in Europe (and of course the sovereignty was always limited in practice, particularly for the smaller and poorer countries) and I dispute what I take to be Edwin’s assumption that this is what is happening and should be welcomed. Apologies for any misunderstanding, but it looks very much to me as if he is saying that classical liberalism has preferred and should continue to prefer interaction between sovereign states over federalisation of any kind. He mentions David Hume, Adam Smith and Friedrich Hayek in this context.

However consider this quotation from Adam Smith: ‘Were all nations to follow the liberal system if free exportation and free importation, the different states into which a great continent was divided would so far resemble the different provinces of a great empire.’ (An Inquiry into the Nature and Causes of the Wealth of Nations. IV.v.b). Surely this contradicts Edwin’s claim. Hayek was the author of ‘The Economic Conditions of Inter-State Federalism’, which advocates federation between democracies to entrench free trade and basic rights. Similar comments can be found in The Road to Serfdom. Now maybe Hayek did not mean to advocate something like the EU as it is now, and even less what the most pure advocates for integrationist federalism wish for, but he did offer support to federation and constraints on national sovereignty.

Going back to the Enlightenment, Immanuel Kant, a liberal advocate of market economies, limited government and freedom under law, wrote essays favouring ‘federation’ or ‘confederation’ to enforce world peace. We can take it that Kant meant a kind of European federation as like most of the time he did not really regard non-Europeans as equals, even if he should have according to his own philosophical principles. Anyway, he had liberal arguments for constraints on national sovereignty, even if very limited in scope.

Edwin may perhaps feel that what Smith, Kant and Hayek said fits with what appears to be his desire for a European Union limited to free trade issue. However, it is important to establish that classical liberalism is open to federation or ’empire’ (which for Smith can be a confederation) and furthermore that a federation for very limited purposes is likely to spill over into other spheres. How do you guarantee peace, security and free trade without a lot of other connected  government functions. It could be argued that classical liberal federation is limited to pure minarchist functions of national defence, and enforcement of laws, but why should we expect transnational  federal states to stay limited within such a sphere when national states never do.

Liberal economics leads us to regard upheaval, change and destruction as healthy, within the limits of law and contract, as this is how there can be innovation and prosperity. We can think of politics in the same way. Current crisis conditions will change the EU but are at least as likely to do so in ways which reconstruct its various activities, and the ways in which they are conducted, to the benefit of its health, as to lead to an EU restricted to free trade or in a state of complete collapse.

Myths of Sovereignty and British Isolation, 20. Concluding Remarks

Barry Stocker Current Events, History, Politics , , , , , ,

This series (1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16i, 16.ii, 17, 18, 19) has explored a number of ways in which those who support a very sovereign United Kingdom completely separate from the European Union, and even other European institutions like the European Court for Human Rights, which is attached to the Council of Europe rather than the European Union, are attached to unsupportable ideas about the separateness and superiority of England, Britain or the UK.

What Britain’s past was does not prove anything about where it should be now with regard to European institutions, but it is at least possible to say that claims according to which Britain has always stood apart from Europe are false, and so is any connected claim that Britain is somehow fated by history, geography and national character to stand aside from arrangements made by European nations to share sovereignty.

Britain was connected to the rest of Europe through Celtic culture and language, then through the Roman Empire, then through the Saxon conquest, then partial Viking conquest, then Norman-French conquest, then ties with the Netherlands, then a union in the person of the joint monarch with the Netherlands, then a union in the person of a series of kings with Hanover in Germany, then through constant British intervention in European affairs, land holdings which go back to the Channel Islands (originally French), the remains of which still exist in Gibraltar and sovereign military bases in Cyprus, then through postwar European institutions like the Council of Europe (which loosely groups all democracies, broadly defined) and then the European Union.

The peoples of the United Kingdom of Great Britain are rather less firmly committed to maintaining the existing state than the peoples of France and Germany are, the two European nations usually taken by British Eurosceptics as the negative opposite of Britain in all its glory. There is a distinct possibility that Scotland will leave, with strong separatist tendencies in Northern Ireland and to a lesser but real extent in Wales. So Britain is not uniquely well formed and self-confident as a nation.

As with all other nations, Britain was built through war, state appropriation and the enforcement of a national state system. It is not a country of unique liberty, neither does the Anglosphere of UK, USA, Canada, Australia and New Zealand exist as a uniquely coherent transnational grouping based on medieval and early modern English institutions. The Anglosphere countries are diverse, with different historical experiences, with Britain as the odd one out in the sense that all the other Anglosphere countries are still dealing with the status of indigenous peoples who lived there before the relatively recent history of the Anglosphere states.

Other European states have links with ex-colonies, where the language of the colonial power is still widely spoken. More French people live in Britain than those from the Anglosphere (300 000 versus 191 000). Links with the Anglosphere are certainly quite real and exist quite happily alongside EU membership, so the whole idea of making the Anglosphere something that excludes a European path is misleading in any case.

The historical interpretations referred to in this and previous posts are not contentious. No educated and fastidious sovereigntist-Eurosceptic is going to deny them, the trouble is that a lot of less fastidious sovereigntist-Eurosceptic assumptions about history are not in happy accord with these historical realities, and even the more fastidious are trying to emphasise an unrealistic counter-narrative of British distinctness that goes beyond the normal level of distinctness between major nations. Britain has certainly made its contribution to the history of liberty, civil and commercial society, but is not obviously more blessed in these respects than the other most advanced European nations.

The case against the United Kingdom’s participation in the European Union can only be the case against the existence of a transnational political union for any large grouping of European nations. There are problems with the EU and I can agree with many sovereigntist-Eurosceptics on many of these problems, but if we reject the more myth making kinds of nationalism these are problems I suggest that can be addressed with better, more decentralised and flexible institutional arrangements. India, which has a greater population than the EU, and at least as much diversity of language and other aspects of human life survives.

It is of course difficult to know what Europe would look like without the EU and what good things in Europe are due to the EU, but I suggest that it is not a complete coincidence that the period of the EU has been a time of growing democracy and peace, with many countries taking EU membership as part of the path from dictatorship to democracy. The Euro crisis and the more recent Mediterranean refugee crisis are bringing strain to the EU, but that is what happens to political communities, they encounter problems and survive them if they have robust institutions. The economic problems of southern Europe precede the EU and tensions round migration exist in other parts of the world. Britain has anyway remained aside from the Euro, as have Sweden and Denmark, suggesting that the EU can accommodate flexibility and allow member states with doubts about the most ambitious schemes to stand aside from them. This is certainly the path to go down if the EU is to be a robust political community.

The basic point in this series has been that nothing makes British history separate from European history, so that questions about membership of a European political community which pools sovereignty are not answered by looking to a supposed distinct and superior history. Britain is part of Europe and always has been and has frequently shared sovereignty in some way with some mainland European state. Past history does not exclude Britain from Europe and trans-national European institutions, which may or may not be appropriate for Britain and other countries, for reasons in the here and now. As far as history determines Britain’s place, the appropriate place is Europe.

Myths of Sovereignty and British Isolation XIX, Charters and Constitutions

Barry Stocker History, Law, Liberty , , , , , , ,

The last post discussed the historical role of law. This post finally delivers the promise to discuss constitutions and charters. The sovereigntist Eurosceptic position in Britain standardly includes an elevation of Magna Carta into the greatest document ever in human liberty or, in more moderate versions of this position, certainly the greatest since it was issued in 1215 and the fount of all worthwhile liberties ever since: blessing Britain and countries which might be considered off shoots, like the USA, Canada, Australia and New Zealand (the ‘Anglosphere’), with a unique appreciation of liberty and parliamentary democracy.

While Magna Carta is of course a remarkable document and the moment it was issued was a remarkable historical moment, these claims are a distortion. It was a Latin document issued under duress during civil war conditions, the duress applied to the king by barons, at a time when the the English aristocracy and monarchy was distinguished from the great body of English by use of the French language and holdings in France.

Magna Carta has nothing to do with parliamentary democracy, it refers to a council of 25 which barons might form if they found the king to be misbehaving, and does not refer to a standing representative body but rather something more like a right of insurrection against a ‘tyrannical’ monarch. This has no more to do with parliamentary democracy than a variety of councils and assemblies existing across Europe at this time, and rather less than some.

Though Magna Carta is dressed up in the language of reasserting traditional rights, this does not make it the expression of a distinctly English or British love of rights based in tradition rather than innovation as the sovereigntists standardly claim. All demands for rights across Europe were expressed in that way at that time, and for centuries before and centuries after. The French Revolution itself started as a demand for ‘restoration’ of rights. The language of restoration is of course frequently a cover for innovation, an attempt to justify innovation by denying what it is.

Magna Carta was the innovatory product of political struggle, not the writing down of the unchanging liberties of old England. The same goes for the struggles for parliamentary power in the seventeenth century which frequently took on the deceptive form of ‘restoration’ of a Magna Carta which was already supposedly a restoration. It is even more fantastical to see the US Constitution as the outcome of Magna Carta, which does not stop many Anglosphere sovereigntist Eurosceptics doing so.

The history, or histories of liberty, is the accumulation of many interacting events, charters and theories in many countries. The growth of British parliamentary power took place in that context as did the US constitution and the Declarations of the Rights of Man and Citizen, which took place during the French Revolution. Like the French Declarations, Magna Carta exists in different versions so there is no pure origin text of liberty in either place. Rival French and Anglosphere attempts to proclaim the priority of either are particularly absurd. These are documents separated by hundreds of years and many other factors.

We cannot imagine modern liberty without either source, though both sources are flawed and open to challenge. The last thing thought and politics based on liberty needs is some sacred unchallengeable text as foundation, inevitably distorting understanding of the varied contexts and sources of liberty, and inevitably distorting our understanding of how ‘sacred’ documents had a source in power politics and political economy. There is no immaculate liberty born outside of struggles over power and appropriation of wealth.

The writing down of liberties in a legal document itself, particularly one that has a special, difficult-to-overturn foundational status, places some constraint on liberty, on how some people now and even more in the future might have some different ideas about liberty and see the earlier document as constraining.

It is certainly the case that a strongly entrenched document like the US Constitution deprives later generations of the liberty to re-imagine liberty and it is certainly the case that such a Constitution conflicts with the common law tradition exalted by British sovereigntist-Eurosceptics, according to which law progresses through the way judges build gradually on earlier cases to interpret statutes and formulate principles of justice.

Clearly a strongly entrenched Constitution with a Bill of Rights added does not come from common law, though it may try to capture some of the principles supposed to be widespread in common law, and must heavily constrain common law judges. The idea of a Constitution standing above politics, constraining it according to pure justice, has at least in the United States made the membership of the Supreme Court and its decisions a matter of constant political contention.

No attempt at a system of liberty can avoid tensions between different sources and understanding of liberty. Unfortunately the Eurosceptic-sovereigntist position largely tends to overlook this, or like someone looking at the Sun, cannot have it directly in its gaze without serious damage. The elevation of common law tradition, Magna Carta, and parliamentary democracy is the elevation of different things which in some sense must always be part of liberty, thinking of the general principles of judicial independence, institutional harmony, and representative government. However, as they conflict there can be no perfect version and no reason to think English, British or Anglosphere solutions can be regarded as above all others and with nothing to learn from the law-governed democracies of mainland Europe.

Next week, the end, a final summary.

Myths of Sovereignty and British Isolation XVIII: Laws, Juridification and the Administrative State

Barry Stocker History, Law , , , , , , , ,

The last post focused on the distinction between civil and common law, with regard to Britain’s position as a common law country in contrast with the civil law tradition of the rest of Europe. The promise at the end was to move onto laws, charters, and constitutions in this post. However, I have found it necessary to discuss the idealisation of common law further and look at how a large part of this looks back to a world which is lost, regardless of predominant legal system as societies have roughly speaking moved from customary law to ‘juridification’ (state centred comprehensive law penetrating all social relations), and then the world we live in now of the administrative state.

The British sovereigntist and Eurosceptic position tends to emphasise a supposed unique British exception from the statist rationalism of civil law, in the ‘common sense’ of the accumulation of law arising from judicial precedent in the decisions of judges in previous cases. This supposedly British exception looks rather challenged when we consider the thoughts of the influential German philosopher Hans-Georg Gadamer in his 1960 book Truth and Method. Gadamer refers to French rationalist Enlightenment in contrast with a German form of Enlightenment based on the original understanding of ‘prejudice’.

Prejudice, in Gadamer’s account, did not begin as a negative term for the constraints of false assumptions, but in a legal process in which the court forms a preliminary opinion in an early stage of proceedings. For Gadamer this represents the continuity of custom and the communal sense of justice in contrast to abstract rationalism. What he describes is not the same as the common law tradition, but represents another way in which the apparent underlying advantages of common law can appear in another system.

The idealisation of common law is really a claim to prolong the role of custom in law into the age of state statutes and deliberately constructed legal codes. Not that an age can be identified in which pure custom operated and no state created laws existed. It can be said that laws used to be less in number and articulated in terms of defending the wisdom of ancestors as part of a generally shared sense of justice.

However, the destruction of such a world, which depends on accepting fictions about the harmonious origin of laws outside the interests of power, was not from the triumph of civil law. The heroic moments of civil law in the process that leads from 1789 French Revolution through constitutional monarchy, republic, and Bonapartist autocracy, are the product of the decay of traditional societies in which localised and regionalised kinds of authority operated in ways which mixed statute and customary law, and where even in conditions of political autocracy the state ruled over either a very small community unified by common experience, or larger units which aggregated such communities rather than enforcing a very uniform and unitary form of sovereignty back by a hierarchical bureaucratic-military state machine.

There were of course elements of the latter, as in the eleventh century Norman Conquest of England, but even this established only a minute state machine by modern standards, which recognised the ‘privileges’ and ‘liberties’ of the City of London, the church, the barons, and so on. The idea of civil law is generally traced back to Rome, bracketed by the Twelve Tables of fifth century BCE Rome and the Corpus Juris of Civilis (often identified with the Institutes which form just one part of it) Justinian promulgated in the New Rome of Constantinople in the sixth century CE.

This civil law prevailed in Roman Britain for four centuries as it did from the Rhine to the Euphrates. The Roman world, including the Greek empire governed from Constantinople, that emerged in the sixth century, was nevertheless a world of localised traditional authority in which central state institutions were more like connecting threads rather than an all inclusive structure.

The Middle Ages saw a process of juridification, as Roman law continued in the church and was revived for the state, in which the uniform administration of justice became strong enough for a system of dominating unifying state military-bureaucratic power to emerge underneath sovereignty that was beginning to become more distinct from the person of a king (or occasionally the persons of an aristocratic assembly).

All European states went through a process, which has been implemented elsewhere, leading to what is now known as an administered society, administrative state, biopower, and all the other terms referring to the inclusive, comprehensive and unifying power of state law and state bureaucracy in relation to society. This was simultaneous with the development of capitalism as a dominant economic system working through unified national markets and trade between states.

A lot of what is said about the difference between common law and civil law represents a wish to return as far as possible to go back to a time before administered societies and even before juridification. There is no time at which law was purely traditional and consensual and no current possibility of even approaching that ideal. Concerns about the administered-juridified society have to be addressed with that world.

The common law tradition might or might not on average be better than the civil law tradition from that point of view, but common law is not what its strongest defenders wish it was and it is not obvious that civil law states in northern Europe including Switzerland, the Netherlands and Denmark, and in a slightly more qualified but real way, Germany are doing worse for liberty and prosperity than the English speaking common law countries. France, the homeland of modern civil law, is itself not doing at all badly compared with most countries in the world as it is and certainly in terms of human history.

For the next post the intention is to finally get onto charters and constitutions.