The long-run risks of Trump’s racism


This week, the United States and much of the world has been reeling from Trump’s xenophobic statements aimed at four of his Democratic opponents in Congress. But the U.S. economy continues to perform remarkably well for the time being and despite his protectionist spasms, Trump is widely considered a pro-growth, pro-business President.

This has led some classical liberals to consider Trump’s populist rhetoric and flirtations with the far right to be a price worth paying for what they see as the safest path to keeping the administrative state at bay. Many classical liberals believe the greater risk to liberty in the U.S. is inevitably on the left with its commitment to expanding welfare-state entitlements in ways that will shrink the economy and politicize commercial businesses.

In ‘Hayek vs Trump: The Radical Right’s Road to Serfdom’, Aris Trantidis and I dispute this complacency about authoritarianism on the right. In the article, now forthcoming in Polity, we re-interpret Hayek’s famous The Road to Serfdom in light of his later work on coercion in The Constitution of Liberty.

We find that only certain forms of state intervention, those that diminish the rule of law and allow for arbitrary and discriminatory administrative oversight and sanction, pose a credible risk of turning a democratic polity authoritarian. A bigger state, without more discretionary power, does not threaten political liberty. Although leftwing radicals have in the past shown disdain for the rule of law, today in the U.S. and Europe it is the ideology of economic nationalism (not socialism) that presently ignores democratic norms. While growth continues, this ideology may appear to be compatible with support for business. But whenever the music stops, the logic of the rhetoric will lead to a search for scapegoats with individual businesses in the firing line.

Several countries in Europe are much further down the 21st road to serfdom than the U.S., and America still has an expansive civil society and federal structures that we expect to resist the authoritarian trend. Nevertheless, as it stands, the greatest threat to the free society right now does not carry a red flag but wears a red cap.

Here is an extract from the penultimate section:

The economic agenda of the Radical Right is an extension of political nationalism in the sphere of economic policy. While most Radical Right parties rhetorically acknowledge what can be broadly described as a “neoliberal” ethos – supporting fiscal stability, currency stability, and a reduction of government regulation – they put forward a prominent agenda for economic protectionism. This is again justified as a question of serving the “national interest” which takes precedence over any other set of values and considerations that may equally drive economic policy in other political parties, such as individual freedom, social justice, gender equality, class solidarity, or environmental protection. Rather than a principled stance on government intervention along the traditional left-right spectrum, the Radical Right’s economic agenda can be described as mixing nativist, populist and authoritarian features. It seemingly respects property and professes a commitment to economic liberty, but it subordinates economic policy to the ideal of national sovereignty.

In the United States, President Trump has emerged to lead a radical faction from inside the traditional right-wing Republican Party on a strident platform opposing immigration, global institutions, and current international trade arrangements that he portrayed as antagonistic to American economic interests. Is economic nationalism likely to include the type of command-and-control economic policies that we fear as coercive? Economic nationalism can be applied through a series of policies such as tariffs and import quotas, as well as immigration quotas with an appeal to the “national interest.”

This approach to economic management allows authorities to treat property as an object of administration in a way similar to the directions of private activity which Hayek feared can take place in the pursuit of “social justice.” It can take the form of discriminatory decisions and commands with a coercive capacity even though their authorization may come from generally worded rules. Protectionism can be effectuated by expedient decisions and flexible discretion in the selection of beneficiaries and the exclusion of others (and thereby entails strong potential for discrimination). The government will enjoy wide discretion in identifying the sectors of the economy or even particular companies that enjoy such a protection, often national champions that need to be strengthened and weaker industries that need to be protected. The Radical Right can exploit protectionism’s highest capacity for partial discriminatory applications.

The Radical Right has employed tactics of attacking, scapegoating, and ostracizing opponents as unpatriotic. This attitude suggests that its policy preference for economic nationalism and protectionism can have a higher propensity to be arbitrary, ad hoc and applied to manipulate economic and political behavior. This is perhaps most tragically demonstrated in the case of immigration restrictions and deportation practices. These may appear to coerce exclusively foreign residents but ultimately harm citizens who are unable to prove their status, and citizens who choose to associate with foreign nationals.

Against Ideology

Since first dipping my feet (brain?) into philosophical waters I’ve realized that the world has more dimensions than my mind. Many more. Which means insisting on a consistent philosophy is, in all likelihood, a recipe for disaster.

This isn’t to say I’ve got an inconsistent philosophy, or that I’m ready to throw up my hands and say “anything goes!“. But like a good bridge, my philosophy is full of tensions.

I can’t derive everything back to the Harm Principle (a principle I like), recognition of subjective values (which I’m on board with), or some notion of a social utility function (which I do like as a rhetorical crutch or skyhook, but am unwilling to take with me more than arm’s length from the whiteboard).

Instead, I’ve got a smorgasbord of mental tools–ethical notions (“don’t kill people!”), social science models (prisoners’ dilemma, comparative advantage)–that I try to match appropriately to the situation.

This puts me in the unfortunate position of requiring a great deal of humility. But as it will say on my tombstone: worse things have happened to better people…

I approach the world with libertarian priors. At the end of the day, I’m a left-libertarian anarchist. But Jonathan Haidt’s work has convinced me that my priors say more about me than the world. To be sure, libertarianism brings something important to the table, but so do other views.

Recognizing the importance of ideological pluralism lets me use my ideology like a lever instead of a bat–a tool instead of a weapon. And hey, what’s more libertarian than pluralism?!

As a centuries-long-run prospect for a meta-utopia I’m still staunchly libertarian. Go back in time 500 years and you’ll be told democracy is a pipe dream. I think we’re in a similar moment for the ideas of radical freedom, self-determination, and decentralization of power I’d really like to see put into practice. But imagine going back in 500 years, convincing everyone you’re a powerful wizard, then implementing democracy all at once. I don’t think it’d work out very well. Hell, I’m not even sure about going back in time 3 years to run that experiment! Similarly, flipping the An-Cap switch tomorrow would probably be 100 steps forward, 1000 steps back. Without the appropriate culture in place, good ideas are likely to backfire.

Still, I’m a libertarian anarchist by default and want to see the world move in that direction. But in the short-medium run I refuse to be dogmatic.

I get a lot out of my ideological priors, but I get more by refusing to slavishly follow them at all costs. Yes, the greatest good will be served in an anarcho-capitalist world (I think). But it’s a long trip from here to there. Sustaining that equilibrium will require a cultural shift that hasn’t happened yet–and ignoring those informal institutions is likely to lead to something more like feudalism than utopia. In the mean time, I say move towards greater freedom and avoid getting bogged down in partisanship.

So I’ve got a long-run goal: radical federalism and maximal freedom. But how do we get there? What are the short- and medium-run goals?

Simply to make things better while encouraging people to engage in voluntary interactions that create value, especially by building up social capital networks.

My Austrian-subjectivist priors are in tension with my rationalist-utilitarian instinct. But I think we find a way out by considering policy effects on future generations. Tyler Cowen suggests pursuing policy that promotes long run economic growth.

The big caveat is that although GDP is the best available metric to pursue, GDP is an imperfect measure. Figuring out “GDP, properly understood” adds a layer of complexity that makes policy evaluation all the more difficult. Which is part of the controversy with my recent posts on pollution taxes.

For example, after the end of slavery, total leisure time increased which would decrease measured GDP. But clearly a proper accounting of productivity would discount the initially higher GDP by the cost of forced labor. Similarly, we have to refine our notion of measured* economic well-being to account for things left out of the old methods–like household consumption, leisure, black markets (side note: the war on drugs is a waste!), human capital**, and ecological assets that fall outside the private property system.

Addendum for the left: what’s best for the world’s poorest people is a worthy addition to Cowen’s policy. And it’s an addition that also tends to push us towards libertarian arguments (like liberalization of immigration policy).

Unfortunately, I’m a rationalist by default which means I have to work at my epistemic humility. I’m constantly tempted to see the world as more legible than it really is. I have to keep reminding myself that I don’t know could fill a library. But the world is much more complex than any functional team of smart people could handle, let alone a lone economist–even if he happens to be one of few who really do get it.

One of my favorite arguments is the Austrian-libertarian point that “if we knew what people would do with their freedom, we wouldn’t need it.” For example, the reason to allow someone to start new businesses isn’t because we know that it’s going to make things better. Instead, it’s because market innovation depends on decentralized, crowd-sourced experimentation. We don’t say “oh, this Steve Jobs guy is about to improve our lives,” because if we could do that (we can’t) then we could instead find a less costly way to get the same outcome (we can’t do that either). 

This line of reasoning also applies to policy. There are some easy cases–there’s plenty of low-hanging fruit in occupational licensing. But society is a complex system, so you can’t do just one thing. Any one policy change ripples through the system and creates unintended consequences. 

Don’t get me wrong, I’m not saying we should do nothing. But my conservative friends are right that we shouldn’t go too fast. In any case, we’ve got more tensions that require me to listen to a wider range of ideological voices due to my cognitive limits.

A particularly interesting policy question is to what extent we should (not) take account of the impacts of American (Canadian, European, Chinese, etc., etc.) policy on non-Americans.

Here we find another tension. On the one hand, surely being accidentally born into a particular geography doesn’t give you greater moral weight than others. On the other, even if we want American policy to help Haitians, there’s a knowledge problem exacerbated by distance.

I think the appropriate response is a friendly and open federalism. Local issues should be handled locally. We should be neighborly. We should resist the temptation to centralize power. 

But we should also take advantage of large-scale governance structures (private or public) to deal with large-scale issues. Match the scale of governance to the scale of the relevant externalities.

The downside of this approach is that some locales will do terrible things. “States’ rights” is a bad argument for slavery (or for anything else). But stepping in to make things better isn’t an unambiguous improvement. If there’s one thing to learn from America’s adventures in statecraft*** it’s that you can’t just force a country to be free.

Given that, we should be more open to accept the world’s huddled masses yearning to breathe free. Historically, our record is far from spotless. But there have also been humanitarian successes in moving people away from tyranny

We have a moral obligation to at least consider the well-being of everyone around the globe. And the lowest hanging fruit for actually making a positive difference is opening up our borders. Not to say there’s a simple answer, but the answer lies in the direction of freedom of movement.

How should we (according to me) go about deciding questions of public policy? We should opt to encourage the creation of value and reduction of costs (i.e. economic growth). But we should do so carefully and with open minds.

GDP growth is a worthy goal, but not for it’s own sake. John Stuart Mill wrote

“How many of the so-called luxuries, conveniences, refinements, and ornaments of life, are worth the labour which must be undergone as the condition of producing them?… In opposition to the ‘gospel of work,’ I would assert the gospel of leisure, and maintain that human beings cannot rise to the finer attributes of their nature compatibly with a life filled with labour.”

Mindless insistence on measurable output overlooks important things like going to your kid’s little league game, grabbing a beer with friends, or quiet contemplation. And even if the people arguing for protecting the environment seem a bit silly, we’re wrong to ignore the importance of environmental externalities in affecting our standard of living. All of which is to say, Cowen is right that we need to carefully consider the shortfalls of how we measure economic growth, all while encouraging it.

Perhaps most importantly, we should relish a tension between consequentialism and principles. There are plenty of low-hanging fruits for libertarianism, but if we want to get the most out of this metaphorical tree we need to let a fear of bad outcomes encourage us to invest in civil society, informal institutions, and rich social networks so that freedom can expand without costing us inhumanity. I want to see the welfare state ended, but I’m willing to wait while we start by reducing barriers to entrepreneurship. I want to see taxes go away, but I’m willing to see a less-bad tax replace an egregious one.

We should reject the dogmatism that too often leads us to over-prioritize ideological purity. First, such purity can trap us in local optima (metaphor: a self-driving car programmed to never go east sounds like a good way to get from NYC to LA… till it gets stuck in a cul de sac somewhere). Second, that purity is an illusion. God’s true ethical system simply isn’t available to us–it’s more complex than our brains are–so why worry?

Post script: don’t take this to be an argument against libertarianism. Or a call to prioritize “pragmatism” over ideology or any other political values. I’m not trying to make a definitive argument abolishing ideology, I’m just gently pushing back. The key word here is tension. We can’t have tension between A and B if we get rid of A.

*Here’s another tension: I don’t believe we can actually measure economic well-being. I think we can make educated guesses based on well-thought out studies of observable proxy variables, but I believe in the impossibility of interpersonal utility comparison.

**A major pet peeve of mine is the conflation of education and schooling. Education, properly understood, is simply not measurable. We might find some clever proxy variables (for example, the Economic Complexity Index is my current favorite metric for productive capability–which overlaps capital and human capital accumulation).

***That’d be a good title for a comic book! If you know the right historian and/or international relations scholar, put them in touch with Zach Weinersmith!

Introducing: the Federation of Free States, an ongoing thought experiment

The most popular article I have ever written, in terms of views, has been, by far, “10 Places that Should Join the U.S.,” a short piece at RealClearHistory pining for an enlarged geographic area under the American constitution.

This is not a strange concept for longtime NOL readers. I’ve been pleading for stronger political ties between the U.S. and its allies for quite some time. There has been lots of push back to this argument, from everywhere. So I’m going to spend some more time explaining why I think it’d be a great idea for the American constitutional regime to expand geographically and incorporate more political units into its realm. Here is what an initial “federation of free states” would look like in, say, 2025:

NOL map United States in 2020 with 79 states

I’ve incorporated two of the strongest voices against such a federation, NOL‘s very own Michelangelo and Edwin. Michelangelo’s Pacific and Caribbean bias is somewhat acknowledged, and Edwin’s pessimistic socio-linguistic argument against adding continental European states to the federation has also been incorporated.

I’ve also tweaked the “10 places” that I originally saw fit to join the US.

In the map above I’ve got parts of Canada (the 3 “prairie provinces”) and Mexico (3 “ranching states”) joining the American federation. The prairie provinces of Canada – Alberta, Saskatchewan, and Manitoba – would be admitted as separate “states,” and would thus get to send 2 senators each to Washington. According to my napkin calculations, Alberta would only be sending 3 representatives to DC while Saskatchewan and Manitoba would only get 1 representative each in the House. The ranching states of Mexico – Coahuila, Tamaulipas, and Nuevo León – wold likewise be admitted as separate “states,” and would also get to send 2 senators each to Washington. These three states, which have plenty of experience with federalism already, are a bit more populated than the prairie provinces, but not by much. Nuevo León would send 4 representatives to DC, while Tamaulipas would send 3 and Coahuila, 2. Why be so generous to these polities? Why not lump them together into one unit each – a Mexican one and a Canadian one? Mostly because these new states would be giving up a lot to leave their respective polities. Military protection and the rule of law wouldn’t be enough, on their own, to persuade these states into joining the Federation of Free States. They’d need disproportionate representation in Washington, via their Senate seats, in order to leave Canada and Mexico and join the republic.

Antilles (Cuba, Dominican Republic, US Virgin islands, and Puerto Rico). This is a random collection of polities, I admit, and lumping them together into one “state” is even more random. But lump them together I would. On their own I don’t think these polities would do well in a federated system, even with their own Senate seats. There’s just not enough historical parliamentary experience in these Caribbean states. If they were lumped together, though, they’d be a formidable presence in Washington. While Antilles would only get 2 Senators, its combined population would be enough to send 19 representatives to the House, more than Florida, New York, and a gang of other influential states in the current union. At the heart of Antilles joining the US as a “state” in its union is a great trade off: sovereignty in exchange for the rule of law and democratic self-governance.

IsPaJo. Israel, Palestine, and Jordan would also be incorporated into 1 voting state, though I don’t have a good name for this state yet. This isn’t nearly as crazy as it sounds. The populations of these 3 polities would benefit immensely from living under the US constitution. Questions of property would be handled fairly and vigorously by the US court system, which is still widely recognized as one of the best in the world when it comes to property rights. Concerns about ethnic cleansing or another genocide would be wiped away by the fact that this new state is now part of the most powerful military in world history. Sure, this state would only get to send 2 Senators to Washington, but its representation in the House would be sizable: 18 representatives.

England and Wales (but not Scotland or Northern Ireland). England would be the crown jewel of the federation free states. The United Kingdom is dying. Scotland wants out. Northern Ireland wants to rejoin Ireland. In England, London is thriving but the rest of the country is suffering from the effects of de-industrialization. The kingdom’s once-vaunted military depends on the United States for nearly everything. Adam Smith put forth a proposal in his 1776 treatise on the wealth of nations that’s worth re-discussing here. Smith argued that the best way to avoid a costly war with the 13 American colonies was to give them representation to go along with taxation. He proposed that the U.K.’s parliament should add some seats and give them to North American representatives. This way both sides could avoid the whole “no taxation without representation” dispute. Smith further opined that, were this federation to happen, the center of the British empire would inexorably move in the direction of the North American colonies. England and Wales would both get to send 2 Senators to Washington, giving the Isle of Liberty 4 Senators in the upper house. Wales wouldn’t get much in the way of the lower house (only 2 representatives according to my napkin calculations), but England, in exchange for its sovereignty, would become the republic’s most populated “state” and would therefore get to dictate the terms of discourse within the republic in much the same way that California and Texas have been doing for the past 3 or 4 decades. That’s not a bad trade-off, especially if you consider how awful life has become in once-proud England.

Liberia. In 1821-22, the American Colonization Society founded a colony on the Pepper Coast of West Africa and called it Liberia. The aim of the colony was to provide freed slaves in the Americas a place to enjoy their freedom, since racism was still rampant in the Americas. The freedman quickly came into conflict with the locals (a clash of cultures that has continued into the present day). Liberia, governed by its New World migrants, declared its independence in 1847 but it wasn’t until 1862, in the early stages of the American Civil War, that the US recognized Liberia’s declaration. The African continent’s first and oldest republic, predating Ghana by over one hundred years, survived, as an independent entity, the Scramble for Africa in the late 19th century and has been at the forefront of regional coalition-building in Africa since the end of World War II (when the British and French empires collapsed). Liberia, like almost all republics, has decayed politically and socially, especially over the last few decades. Federating with the United States would do wonders for Liberians, and give the federation of free states a legitimate stamp on the African continent (and breath new life into America’s own republican decay). The West Africans would send 2 Senators to Washington, and about as many representatives as Louisiana or Kentucky.

Japan (8 “states”). With nearly 127 million people, Japan’s presence in the American federation would alter the latter’s composition fundamentally. Federating the United States with Japan also presents some logistical problems. As it stands today, Japan has 47+ prefectures, which are roughly the equivalent of US states. If we added them all as they are, the Japanese would get over 100 senate seats, which is far too many for a country with so few people. So, instead, I would bring Japan on board via its cultural regions, of which there are 8: Kantō, Kansai, Chūbu, Kyushu, Tōhoku, Chūgoku, Hokkaidō, and Shikoku. The country formerly known as Japan would get 16 Senate seats (which would be roughly divided between left and right) and the new “states” would be able to send a plethora of representatives, ranging from 32 for Kantō to 3 for Shikoku. In exchange for its sovereignty Japan would get the military protection from China it wants. The US would no longer have to worry about a free-rider problem with Japan, as its inhabitants would be citizens under the Madisonian constitution. It is true that a federation would lead to more non-Japanese people being able to migrate and take root in Japan, but this is a feature of federation, not a bug. (A federation of free states would devastate ethno-conservatism in several societies around the world.)

Micronesia.” Made up of 8 current countries and territories in the Pacific Ocean, Micronesia is also a cultural territory that encompasses a huge swath of the Pacific. While it doesn’t have a whole lot of people, Micronesia has been important to US military efforts in the Pacific for centuries. Federating with the area is the least we could do for the inhabitants of the Northern Marianas, Guam, the Federated States of Micronesia, the Marshall Islands, Palau, Nauru, Kiribati, and Wake Island. Micronesia would only get 1 seat in the lower house, but with 2 sitting Senators in DC the area would finally get a say in how the United States conducts its business in the region.

Visayas, Mindinao, and Luzon. These 3 regions in the Philippines would do much to enrich the federation of free states. Like Japan above (and South Korea below), the Philippines has a complicated representative system that would need to be simplified in order to better fit the Madisionian constitutional system. Through this cultural-geographic compromise, the Philippines would be able to send 6 senators to Washington, but these three “states” would also get to send more representatives to Washington than New York, Pennsylvania, and a bunch of other current heavyweights. There is already a long history between Filipinos and Americans, and while the first half century was a rough one for both peoples, today Filipinos hold some of the most pro-American views in the world. Of course, Americans who live near Filipino communities in the United States know just how awesome Filipinos are.

Taiwan. Even though Washington doesn’t officially recognize Taiwan as a country (a deal Washington made with post-Mao reformers on the Chinese mainland, in exchange for peace and trade), the two polities are deeply intertwined. Taiwan spends billions of dollars on American military equipment, and the U.S. spends significant political capital protecting Taiwan from China’s bellicosity. Taiwanese statehood would not only bring two close societies even closer together, it would force China to either fight the United States or reveal itself to be a paper tiger. That’s a gamble I’m willing to take, since China is a paper tiger.

South Korea (5 “states”). Another wealthy free-riding ally of the United States, South Korea has 5 cultural regions that could easily become “states” in a trans-oceanic federation: Gangwon, Jeolla, Chungcheong, Gyeongsang, and Gyeonggi. This would give South Korea 10 senators and 50 representatives (spread out according to population size, just like all the other states in the union).

Altogether we’re looking at adding 29 states to the union. That’s a lot, but I think you’ll find that not only would we be expanding liberty but also limiting the size and scope of the federal government, and forcing it to do more of what it is supposed to do: provide a standardized legal system with plenty of checks & balances and maintain a deadly, defensive military.

Ending Empire

Check out this map of known American military bases in the world today:

NOL known US bases
h/t Dissent Magazine

Expanding liberty and the division of labor are not the only positive side-effects of an enlarged federation under the Madisonian constitutional system. Ending empire – which is expensive and coercive, and gives the United States a bad name abroad – would also be a key benefit of expanding the republic’s territory.

Most American libertarians are isolationists/non-interventionists. Most European libertarians are wishy-washy hawks. Neither position is all that libertarian, which is why I keep keep arguing that “a libertarian position in foreign affairs should emphasize cooperation, choice, and trade-offs above all else.” Non-interventionism is uncooperative, to say the least, but you could argue that it’s at least a position; the Europeans seem to take things on a case-by-case basis, which is what you’d expect from a people who haven’t had to make hard foreign policy decisions since 1945. Open borders is a cool slogan, but that’s just a hip way of arguing for labor market liberalization.

It’s time to open up our doors and start talking to polities about going all the way.

Institutions, Machines, and Complex Orders (Part 9); Conclusion: legal-political institutions and systems

Institutions, whether formal or informal, consist of limitations on behaviour that allow structuring an order of human interaction (North, D.C., 1991). Such institutions endow decisions with their agents of transitivity and, consequently, with rationality and predictability. That is to say, an institution allows to conform expectations on a range of events dependent on individual decisions that will happen and, above all, on another range of events that will not happen or, if they do happen, they will generate an obligation to repair (either to a private individual through a pecuniary indemnity or to society through a criminal sanction).

For these reasons it is interesting to compare institutions with algorithms: a set of automatic procedures -and therefore devoid of arbitrariness on the part of any of the agents- that, according to the data provided by the environment, yield a range of possible results. In a modern political legal system (equality before the law, division of powers, political responsibility of high officials, principle of closure, etc.), such results show at the individual level a certain range of prohibited actions (the aforementioned principle of closure, everything that is not prohibited is allowed). At the individual level, an institution as an algorithm will allow us to predict what an individual will not do, but not what he will concretely do outside of that range of prohibited actions. At the governmental level, the opposite occurs: institutions allow us to anticipate what judicial decisions will be, which in turn will have to review laws and decrees that violate the rights and guarantees of individuals.

However, while institutions can function as algorithms, providing predictability to individual decisions and policies, they cannot function in a vacuum, but they need to be integrated into a legal and political system. This is so that it is impossible to enunciate them if it is not within the parameters configured by such systems. If institutions are algorithms, legal and political systems are abstract machines that select and integrate such institutions. It is the institutions integrated into a legal and political system that constitute a framework of incentives for human action.

Such institutions evolve following a natural selection pattern, when the legal-political system allows to act a negative feedback system mainly articulated by judicial decisions and precedents that readjust their meaning and content for the resolution of concrete controversies based on principles emanating from the legal system itself. Of course, each system represents the materialization of a set of values. Those of modernity, for example, are based, among others, on the dignity of the human person, which translates into the right to individual autonomy.

An ethic of political responsibility that defends such values ​​can be carried forward by rescuing an abstract system of dispute resolution between individuals that refrains from designing society from a central command. In many cases, such an ethic of responsibility must face ideological political programs that are presented under the guise of an ethics of principles.

Such antagonism is asymmetric, since the central design of society presents its followers with a concrete model and the promise that everything works. Although, this only leads, in practice, to an increasing number of decisions based on expediency. Thus, the opposite of the predictability and absence of arbitrariness of a system of spontaneous coordination of individual plans.

[Editor’s note: You can find Part 8 here, and the full essay can be read in its entirety here.]

Institutions, Machines, and Complex Orders (Part 8): Inequality before the law, de facto

François Furet, in the preliminary essay that serves as an introduction to The Past of an Illusion, entitled “The Equalitarian Passion,” highlights that in the Ancient Regime inequality was legally consecrated, while after the French Revolution, inequality persists surreptitiously, of contraband, thus cementing a feeling of vindication in the face of illegitimate inequality. Something similar happens in a system of regulations that, with the intention of serving the common good, re-establishes, de facto, a system of monopolies and oligopolies.

It is paradoxical that a political legal system made up mostly of general and abstract rules finds an unintended consequence of an increase in general well-being, while a regimented system based on a specific goal of social justice and growth finds itself as an involuntary stagnant consequence and with high rates of inequality. However, attentive given that no one can be judged morally for their involuntary results and instead for their intentions, it is commonly interpreted that the success of societies organized around abstract and general principles cannot be adjudicated to such principles, as it is also considered active policies that deliberately seek the common good cannot be reviewed by virtue of their poor results, but in any case what deserves to be discussed are the means to reach such objectives.

Once this point is reached, we discard any political program that does not have a purpose of reform or transformation based on a specific objective and in which the political discussion is about society models and the means to achieve in the practice of the realization of such models, the table is served for the ideologization of political discourse. Kenneth Minogue had rescued the original concept of “ideology” -before the Marxist who points to a set of values ​​of the ruling class at the service of the perpetuation of his power-, which dealt with the set of claims with scientific pretension that, through a redemptorist program, he proposed a series of concrete transformations of society. This word and notion comes from the ideologues of the French Revolution, which mostly fulfilled a pedagogical function.

Since the ideology of politics is installed, any doctrine that arises from its discourse in terms of defending a system of coexistence articulated around abstract and general norms and lacking a specific purpose of designing the society according to a certain model. In the political arena, therefore, there are political programs that seek to impose a certain model of society, articulated around a series of assertions with alleged scientific validity. Whatever the model of society under discussion, by the mere fact of proposing such political programs the transformation of society in function of those, the legal norms expressed in abstract and general terms that make up both the individual guarantees and the private right run the serious risk of being considered as an obstacle and an irrational hindrance of the past that prevents the realization of such models of society. This is the process that Friedrich A. Hayek had described in The Road to Serfdom.

The paradox is that a legal – political system composed mostly of abstract (that is, lacking a concrete purpose) and general (that is, the same for all citizens regardless of their status) rules allows to coordinate in a more efficient way the resources of those that a society has, through a better coordination of individual plans, about whose content we know nothing and whose final configuration is impossible to predict, that is, a complex social order. On the other hand, the abolition or gradual weakening of such a system of coordination in the allocation of resources and its replacement by a system of planning or centralized control of the economy and society based on a specific model generates an economic breakdown that only serves of excuse to redouble centralization in the administration of resources. At one point, neither the model of society nor the need to have a central planning to reach it, nor even that there is such a model or such a central planning of society, is only discussed, but it is indeed discussed which are the most appropriate means to “improve” said model.

That said, it is worth making a terminological clarification: what Hayek called in The Road to Serfdom “socialism” and then in Law, Legislation and Liberty “constructivism,” can be assimilated to a large extent to what Kenneth Minogue called “ideology” (although in truth, it must be recognized that Minogue, at the time, accused Hayek of being an ideological author). But, as Hayek himself clarifies in his prologue to the 1974 edition of The Road to Serfdom, the socialism to which he alluded in 1944 was not income redistribution programs, but the centralized planning of the economy and society . Similarly, Hayek’s critique of the notion of social justice concerns precisely those programs of political reform that seek to establish, through centralized planning, a designed social order. Another issue is the positivization of values ​​through abstract and general rules. A negative income tax – as proposed by Milton Friedman at the time – can be implemented through abstract and general norms, as well as patterns of redistribution inspired by John Rawls’ theory of justice. The problem is not redistribution, but the replacement of a spontaneous social organization system with a centralized planning system.

At the heart of the dispute between the prevalence of a spontaneous social order versus its replacement by a system of centralized planning of society is a divergence around the concept of the abstract. The supporters of the centralized planning of society are convinced that, through the measuring elements provided by science, the wealth of social events can be selected in aggregates that allow forming an abstract model of society, which In turn, it allows planning its reform according to the ideal model of society in whose transformation the political program that gives it reason to be to the politician’s own activity and that justifies his ethics of responsibility.

Of course, statistical tools, which are constantly developing (Hayek himself was a professor of statistics, and from The Road to Serfdom to today appeared the desktop computer and the science of Big Data, for example), allow a better allocation of public resources in the implementation of government programs. It is very useful for the rationalization of the government administration to know how much the population is going to vaccinate, the poverty and indigence statistics in order to determine, for example, subsidies to the demand, or the needs of schooling at its various levels. However, if there is consensus on the need for a vaccination program, or on the importance of subsidizing access to certain goods or the importance of schooling the population, it is because the members of that society already have a set of principles about what is considered good or bad, desirable or undesirable, necessary or superfluous. Such abstract notions do not arise from the abstraction of social events in statistical aggregates, but, on the contrary, these abstract concepts allow to form the groupings by virtue of which the social reality will have to be interpreted.

Such principles are born, develop and evolve according to the game of continuous human interaction. As described above, they consist of uses and customs that individuals incorporate in the course of exchanges and that prove with the passage of time to provide a better performance to the members of the community that follow them. Accounting standards, public behaviour guidelines, compliance with the word pledged, good faith, are examples of such practices that are extended throughout the population by incorporating such standards into the habits of its members. It was what Max Weber at the time conceptualized as the emergence of “rational capitalism.” These principles are not immutable, but on the contrary they adapt to the circumstances. However, they also enjoy certain permanence in time that allows them to serve as a structure or parameter for rational decision-making, since such a structure of values ​​prohibits a certain range of decisions, which makes its transitivity possible.

This system of discovery and spontaneous evolution of the abstract values ​​according to which reality is perceived and its respective organized elements can assume various configurations and has its own process of immanent criticism. The egalitarian guidelines that we can characterize as typical of modern society, in which every human being has the right to have equal consideration and respect, were extended over less efficient structures such as those of the caste and estates societies, in which the restrictions of competition and the unpredictable exercise of political authority generate stagnation (what Acemoglu and Robinson call “extractive economic and political institutions,” as opposed to “inclusive”). For its part, the peaceful resolution of disputes through the right of judges allows readjusting the set of expectations with which each member of society usually makes its decisions.

Such a system of discovery of abstract values ​​with which each individual can count on to coordinate their respective life plans and their corresponding immanent criticism through the judicial system is also susceptible of receiving a critical analysis by a reasoned examination regarding it and as a result of this, a new political legal order or partial reform of the existing one may arise through the legislative promulgation or even of a constituent assembly. A spontaneous order may have as its origin the enactment ex nihilo of it by a legislator, but among its defining characteristics is the note that it should not necessarily be so. Another of its defining characteristics is that the consequences of a political legal order, still created by the will of a legislator or constituent, cannot be foreseen in its entirety. Moreover, the future evolution of this order cannot be foreseen in its totality and detail. Such degree of uncertainty does not come from the deficiency or insufficiency of the elements of measurement that have for object to know the reality, but in the levels of complexity to which such order can arrive in their more abstract planes.

However, these degrees of complexity decrease drastically in the daily experience of the subjects that interact with each other, seeking to coordinate or compete in their respective individual plans, since each one of them knows what expectations to have regarding the actions of the rest of the subjects (the more “inclusive” the institutions are, the lower the degree of uncertainty). For the case in which two spheres of autonomy collide, the controversy will be resolved by a court that will have to say the content of the law for the specific case submitted to its decision. From this result, they will have to configure a set of expectations with which agents will know that they can count or not.

In contrast to this, at the level of the legislator and the political authority, such levels of certainty leave room for increasing degrees of complexity. Although there are many administrative decisions that can be taken with a high degree of probability of being successful following the procedures of administrative law and the general principles of law – what Max Weber described as a process of rationalization in political decision-making , the certain thing is that it arrives at a point in which the legal reasoning arrives at a limit – what in his moment Carl Schmitt characterized like an instance in which the right dies and leaves its place to the policy. This is where the political authority is faced with the need to dispense with the rationalizing element of law and articulate its decision-making process based on another type of “anchoring”: a philosophical doctrine, a conception of life, a political doctrine, a reason of state or an ideology.

Those who oppose the extension of political power over the autonomous institutions and processes of society maintain that such philosophies, reasons of state, or ideologies are mere masks of pure political will left to their free will. However, at least in principle, they can serve as limitations or at least elements of political responsibility of the ruler in a democracy. There are numerous cases in which a democratically elected governor receives criticism from public opinion regarding a supposed lack of consequence with his political doctrine, a double discourse, or the configuration of a consistent but mistaken ideology. Even so, except for the cases of impeachment and the impossibility of re-election, the tools to control the political reasons of the rulers and their consequences are rather scarce.

However, a distinction can be made between a simple political doctrine and an ideologized political doctrine – or, in Minogue’s terms, quite simply an ideology. A political doctrine can sustain a series of diffuse principles that do not exhaust a totalizing vision of reality. For example, German Christian Democracy can be defined equally by rejection of the extreme left, as the extreme right, a market freedom regulated by the State in order to preserve competition from the actions of monopolies (the “competitive order” of Ordo-Liberalism) and the moderate defence of certain values ​​prevalent in society through the non-interference of the government in its autonomous processes, that is, a clear division between society and State. However, no one can define in detail an ideology of German Christian Democracy.

In many circumstances, this “de-ideologization” is interpreted as “pragmatism” or “opportunism.” However, there is also room for opportunism in the interpretation of a political ideology by the public power that invokes it as a reason of state. The great problem that “ideologies” or ideological visions of politics do present is that, by offering a totalizing and scientific version of reality, they can be used as tools to discredit the legal system.

It is true that a legal system could be replaced by another in its entirety through a legislative reform – in the case of private law, a new civil code, for example – or a constitutional reform. But once reformed or replaced by the new, unless a tyranny has been instituted, it becomes the new legal order that will limit the political power. The problem arises when there is a phenomenon that can be named as the “road to serfdom”: the continuous, permanent and incremental discrediting, erosion, violation and exception to the current legal order.

When such a process is presented, freedom understood as the absence of arbitrary coercion is in decline, since, by invoking a reason of state or a state of exception, the expectations with which individuals counted to form their plans of life are frustrated in a way impossible to foresee. As a result, the political legal order becomes perceived as arbitrary and its obligation to obey it put in doubt.

Another consequence of the phenomenon known as the “road to serfdom” is that the system of immanent criticism of positive law affected by the application of this by judges in the face of concrete controversies is eroded. As already mentioned, attentive to the open texture of legal language, the judicial system allows for marginal readjustments on the content of the law that represent a true process of evolution, in the sense of adaptation to changes in the environment. In turn, this readjustment introduces new expectations in the agents, which generates a change in reality and opens the way for a new interpretation change through the open texture of the letter of the law, in a real feedback process negative that gives stability and predictability to the system.

On the contrary, the state of emergency and emergency legislation, as well as legislative and judicial activism, which seek to modify the content of the law not to solve the internal contradictions generated by its open texture, but to transform it according to concepts alien to the law. Right, they erode such a negative feedback system of expectations and, far from achieving the modernization of the law, what they obtain is their obsolescence, their discredit, and their disobedience. See that in countries with a greater authoritarian tradition, the adherence to standards by the population is significantly lower than in countries where emergency legislation and the state of emergency was limited to cases of war.

[Editor’s note: here is Part 7, and here is the essay in its entirety.]

Institutions, Machines, and Complex Orders (Part 7): The open texture of the words of the law

However, the law itself has its own endogenous system of production of rules, which operates on the abstract plane of the configuration of the structure of the relationships between its terms, and whose dynamics depends on the negative feedback process implied by the judicial work itself to clarify the words of the law for each specific case to be decided. Both in codified law systems and in customary law systems, the current positive law is clearly defined. The legal systems in which previous judgments oblige judges are even more rigid than codified systems, since in the latter it is enough for the legislature to enact a new code for the positive law to change. On the contrary, the judges must make a hermeneutical effort to modify the doctrine consecrated in a judicial precedent without this constituting an arbitrary ruling.

However, both in coded and customary legal systems, the law, which is always enunciated in express statements, carries with it the phenomenon of the open texture of language. These are not the cases of ambiguity, vagueness, or obscurity of the letter of the law. These latter cases can be solved by the doctrine, composed of scientific works that investigate the debates between the members of the legislative power at the moment of sanctioning the norm whose text carries such problems, or resorting to the normative antecedents of which the current law took its vocabulary.

However, vagueness, obscurity, and ambiguity in the words of the law configure linguistic problems with legal relevance, but not legal ones in themselves. What really matters to study are the cases of open texture of the language of the law, since it is through these cases that the law evolves.

In cases of open texture of language, the anomaly occurs in the universe of events to which the language refers. An obvious example: a constitution written in the 19th century can establish that the President is the Commander-in-Chief of land and sea forces. It would not be necessary to reform its text to incorporate the air force – or even weapons built to act outside Earth’s orbit.

However, the dynamics of legal traffic are mostly made up of less obvious cases in which the open texture of language forces judges to establish the words of the law for the specific case, resorting to a hermeneutic interpretation of the law for which “common sense” is not enough. In customary law these hard cases are those that generate a new precedent that often define what is inside and what is outside the “good legal sense.” The authors disagree among themselves on how to characterize this aspect of judicial work. However, the remarkable thing is that these “difficult cases” generated by the phenomenon of the open texture of the language are what make the law respond autonomously to changes in the conditions of the environment that the same right has as a regular task.

Indeed, Friedrich Hayek states in Law, Legislation and Liberty an attempt to separate law and politics based on the evolution of law according to a process of natural selection of norms. While it expressly recognizes that a legal system can be sanctioned in its entirety by the legislator, it also highlights the ability of legal systems to make an immanent critique of themselves, through the judicial system.

Although Hayek does not analyse the phenomenon of the open texture of language in his work, it does characterize law as a structure of norms that continually readjust to changes in circumstances following a negative feedback process, through successive judicial decisions. In Hayek’s own words, what establishes a legal order is a set of expectations about the behaviour of congeners that will be considered or not according to law. For example, if a party fails to meet its contractual obligations, it can expect the other party to refuse to comply with them and that, if sued, the latter will be supported by the courts. This expectation also works as an incentive to fulfil contracts and reduce litigation.

On the other hand, another feature of legal systems -particularly modern ones- that Hayek highlights is the definition of a range of expectations that will be systematically thwarted. This is what determines a structure for human action and implies the consecration of the principle of closure: everything that is not expressly prohibited is allowed. This allows individuals to form their life plans with the expectation that they will be fulfilled and with the ability to anticipate the behaviour of their peers, since they will be under the same incentive structure. The latter leads to a third characteristic of modern legal systems, which allows them to function as self-regulated systems: the principle of isonomy or of the same law for all. The incentive structure determined by the range of expectations that will be systematically frustrated, in a system that results from the same application for each individual, allows the definition of individual spheres of autonomy, within which each individual has free discretion, but when entering into collision with each other, each one will be able to infer what expectations they can have regarding a possible judicial ruling.

The reverse of this system is the “Administrative State,” by Carl Schmitt, in which only that which is expressly authorized by a decision based on expediency, and the status system of the Ancient Regime, is permitted, that each group had a private legal system or privilege-strictly speaking, our current modern system of rights consists in the extension to all human beings of the liberties or privileges that the nobles had wrested from the kings at the time. Therefore, it is a great risk that the number of regulations is such that the rule becomes that only what is specially expressly regulated can be done, depending on the dynamics of the change of the decision of the authority taken in administrative files, and that such is the segmentation of regulations according to pressure groups and interest groups, that they return to a system of privileges instead of equality before the law.

It is not difficult to find numerous current examples: the public transport system could reach levels of regulation such that it could practically be said that only such activity can be carried out with the express authorization of the public authority to that effect. The alternative is not the absence of regulation, on the contrary, the alternative is the modern State of Law: a set of positive norms, dictated by the competent authority and formulated in general terms. These rules that regulate public transport do not have an abstract content, but rather a concrete one: the set of objectives expressly set by public policy. While the rules of private law have an abstract content, that is, they lack a specific purpose, the rules of public law not only have a specific and specific purpose, but that such purpose must be expressly declared, in such a way that justice they can evaluate whether the willing means disposed by the public authority are related and proportional to the purpose of the rule of public law and, in turn, the citizens consider whether such ends are worth pursuing.

To continue with the exemplification of public transport of passengers and merchandise: there is a sphere that corresponds exclusively to private law. This refers to the rules that attribute legal responsibility between the transporter and the transported: the obligation of the transported to pay the ticket or the freight, the obligation of the transporter to transfer the people and goods without them suffering damages. In this sphere there is no concrete purpose of the norm. It only limits itself to stating the set of expectations that the parties can count on, regardless of who they are specifically and what the specific purpose of the transport is.

Correlatively, the regulation of public transport, which belongs to the orbit of public law, does have certain specific purposes. For example, take care of public safety and ensure an efficient distribution of the cost of accidents. For this purpose, it may provide that public transport companies register, periodically review the status of their units, which must meet certain minimum standards, and establish the obligation to contract civil liability insurance. Anyone who complies with these provisions, for example, could devote himself to the activity of public transport, passengers or merchandise. How many and who will be the transporters is something that the public transport regime should not compete with. The number of carriers will be fixed by the price system. Nevertheless, to the control of public transport must concern that the units that circulate are in good condition, that their drivers are suitable and have an insurance that covers their civil liability, so that the transported does not have to face the cost of accidents before an eventual bankruptcy of the carrier. On the other hand, the system of private law, in a parallel and autonomous way, distributes the responsibilities between the parties, without addressing who is each one.

[Editor’s note: Part 6 can be found here, and the full essay is here.]

Institutions, Machines, and Complex Orders (Part 6): Institutions as algorithms

There is therefore a category of phenomena to which the characteristic of being “simple” is attributed (in contrast to the so-called complex), ordered by logical models whose capacity for explanation and prediction is continuously tested by means of a system of trial and error that allows readjusting these models in a process of continuous approach to the truth. The progress in the knowledge of these simple phenomena also depends on the measurement tools that are available: statistical methods, more powerful microscopes, laboratory experiments, etc.. The investigation of simple phenomena consists of a process in which it goes to a greater degree of specificity and concretion. It is for this reason that it is difficult to distinguish whether their theories consist of logical models or empirical models, since they mostly consist of the description of relations and functions between given events.

In the opposite sense of intellectual inquiry, complex phenomena are located: their study consists in the statement of the relationships and functions that structure an abstract order of events. An everyday example of such abstract orders of events can be found in the phenomenon of written laws, both procedural and substantive. In them you can find credit relationships, procedural burdens, temporary periods to exercise actions or rights under penalty of estoppel, or prescription or expiration, assigned functions to produce legal norms of general or particular scope, etc.. The application of such abstract models to the concrete reality is known as “jurisdiction,” that is to say “to say the right for the concrete case.” Of course, for this depend elements of proof and a critical judgment that interprets the given events assigning the legal qualification and the legal consequences of that that the law prescribes in abstract and general form. The jurisdictional activity could be characterized as a “simple phenomenon,” however, the same would not happen with the “science of legislation.”

In effect, when what is studied is a legislative reform, what is being done is to increase in degrees of complexity in the study of standards. The legislator is no longer exclusively discussing legal issues. It could do it: study for example the coherence of a new norm whose sanction is under study with the rest of the juridical order, nevertheless still it is extremely difficult to foresee the set of consequences of a reform on the global operation of the juridical order. However, if this is already difficult in itself, it becomes much more complex when philosophical and political issues come into play in the legislative debate. In the legislative debate on the sanction of the norms, a point arrives at which the legal analysis ceases, in the sense that the discussion takes the fervour of the political philosophy or the cold calculation of the negotiation to reach a legislative majority.

[Editor’s note: You can find Part 5 here, and you can read the full essay here.]