Brazil top court delays decision on blocking prison for ex-president Lula

Brazil’s Supreme Court decided that leftist former president Luiz Inacio Lula da Silva cannot be sent to prison for a corruption conviction until he exhausts all possible appeals. About that:

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be tomorrow.” – James Madison (16 March 1751 – 28 June 1836), fourth President of the United States (1809–1817), co-author, with John Jay and Alexander Hamilton, of the Federalist Papers, and traditionally regarded as the Father of the United States Constitution.

“Brazil is not for beginners.” – Antônio Carlos Jobim (January 25, 1927 – December 8, 1994), also known as Tom Jobim, Brazilian composer, pianist, songwriter, arranger, and singer. Widely considered as one of the great exponents of Brazilian music.


Are voting ages still democratic?

The most recent American gun debate, kicked off last month and reaching its zenith in a school walkout, has been dominated by an unusual group: children.

I’m using “children” only in the sense that they are not legally adults, hovering just under the age of eighteen. They are not children in a sense of being necessarily mentally underdeveloped, or necessarily inexperienced, or even very young. They are, from a semantics standpoint, still teenagers, but they are not necessarily short-sighted or reckless or uneducated.

Our category “children” is somewhat fuzzy. And so are our judgments about their political participation. For instance, we consider ourselves, roughly, a democracy, but we do not let children vote. Is restricting children from voting still democratic?

With this new group of Marjory Stoneman Douglas high school students organizing for political change (rapidly accelerated to the upper echelons of media coverage and interviews), there has been widespread discussion about letting children vote. A lot of this is so much motivated reasoning: extending suffrage to the younger demographic would counter the current proliferation of older folks, who often vote on the opposite side of the aisle for different values. Young people tend to be more progressive; change the demographics, change the regime. Yet the conversation clearly need not be partisan, since there exist Republican- and Democrat-minded children, and suffrage doesn’t discriminate. (Moreover, conservative religious groups that favor large families, like Mormons, could simply start pumping out more kids to compete.)

A plethora of arguments exist that do propose pushing the voting age lower — 13, and quite a bit for 16 (ex. Jason Brennan) — and avoid partisanship. My gripe about these arguments is that, in acknowledging the logic or utility of a lowered voting age, they fail to validate a voting age at all. Which is not to say that there should not be a voting age in place (I am unconvinced in either direction); it’s just to say that we might want to start thinking of ourselves as rather undemocratic so long as we have one.

An interesting thing to observe when looking at suffrage for children is that Americans do not consider a voting age incompatible with democracy. If Americans do not think of America as a democracy, it is because our office of the President is not directly elected by majority vote (or they think of it as an oligarchy or something); it is not undemocratic just because children cannot vote. The fact that we deny under-eighteen year olds the vote does not even cross their minds when criticizing what many see as an unequal political playing field. For instance, in eminent political scientist Robert Dahl’s work How Democratic is the American Constitution? the loci of criticism are primarily on the electoral college and bicameral legislature. In popular parlance these are considered undemocratic, conflicting with the equal representation of voters.

Dahl notes that systems with unequal representation contrast to the principle of “one person, one vote.” Those with suffrage have one or more votes (as in nineteenth-century Prussia where voters were classified by their property taxes) while those without have less than one. Beginning his attack on the Senate, he states “As the American democratic credo continued episodically to exert its effects on political life, the most blatant forms of unequal representation were in due time rejected. Yet, one monumental though largely unnoticed form of unequal representation continues today and may well continue indefinitely. This results from the famous Connecticut Compromise that guarantees two senators from each state” (p. 48).

I quote Dahl because his book is zealously committed to majoritarian rule, rejecting Toqueville’s qualms about the tyranny of the majority. Indeed, Dahl says he believes “that the legitimacy of the Constitution ought to derive solely from its utility as an instrument of democratic government” (39). And yet, in the middle of criticizing undemocratic American federal law, the voting age and status of children are not once brought up. These factors appear to be invisible. In our ordinary life, when the voting age is brought up, it is nearly always in juxtaposition to other laws, e.g., “We let eighteen year olds vote and smoke, but they have to be 21 to buy a beer,” or, on the topic of gun control, “If you can serve in the military at 18, and you can vote at 18, then what is the problem, exactly, with buying a gun?”

What is the explanation for this? We include the march for democracy as one progressive aspect of modernity. We see ourselves as more democratic than our origin story, having extended suffrage to non-whites, women and people without property. We see America under the Constitution as a more developed rule-of-the-people than Athens under Cleisthenes. So, we admit to degrees of political democracy — have we really reached the end of the road? Isn’t it more accurate that we are but one law away from its full realization? And of course, even if we are more of a representative republic, this is still under the banner of democracy — we still think of ourselves as abiding by “one person, one vote” (Dahl, 179-183).

In response, it is said that children are not properly citizens. This allows us to consider ourselves democratic, even while restricting direct political power from a huge subset of the population while inflicting our laws on them.

This line of thought doesn’t cut it. The arguments for children as non- or only partial-citizens are riddled with imprecisely-targeted elitism. “Children can be brainwashed. Children do not understand their own best interests. Children are uninterested in politics. Children are not informed enough. Children are not rational. Children are not smart enough to make decisions that effect the entire planet.”

Although these all might apply, on the average, to some age group — one which is much younger than seventeen, I would think — they also apply to all sorts of individuals distributed throughout every age. A man gets into a car wreck and severely damages his frontal lobe. In most states there is no law prohibiting him from dropping a name in the ballot, even though his judgment is dramatically impaired, perhaps analogous to an infant. A nomad, who eschews modern industrial living for the happy life of travel and pleasure, is allowed to vote in his country of citizenship — even though his knowledge of political life may be no greater than someone from the 16th century. Similarly, adults can be brainwashed, adults can be stupid, adults can be totally clueless about which means will lead to the satisfaction of their preferred ends.

I venture that all Americans do not want uninformed, short-sighted, dumb, or brainwashable people voting, but they will not admit to it on their own. Children are a proxy group to try to limit the amount of these people that are allowed in on our political process. And is banning people based on any of these criteria compatible with democracy and equality?

Preventing “stupid” people from voting is subjective and elitist; preventing “brainwashable” people from voting is arbitrary; preventing “short-sighted” people from voting is subjective and elitist, and the same for “uninformed” people. We come to the category of persons with severe mental handicaps, be their brain underdeveloped from the normal process of youth, or injury, or various congenital neurodiversities. Regrettably, at first glance it seems reasonable to prevent people with severe mental defects from voting. Because, it is thought, they really can’t know their interests, and if they are to have a voting right, it should be placed in a benefactor who is familiar with their genuine interests. But now, this still feels like elitism, and it doesn’t even touch on the problem of how to gauge this mental defect — it seems all too easy for tests to impose a sort of subjective bias.

Indeed, there is evidence that this is what happens. Laws which assign voting rights to guardians are too crude to discriminate between mental disabilities which prevent voting and other miscellaneous mental problems, and make it overly burdensome to exercise voting rights even if one is competent. It is hard to see how disenfranchising populations can be done on objective grounds. If we extended suffrage from its initial minority group to all other human beings above the age of eighteen, the fact that we prolong extending it to children is only a function of elitism, and consequently it is undemocratic.

To clarfiy, I don’t think it is “ageist” to oppose extending the vote to children, in the way that it is sexist to restrict the vote for women. Just because the categories are blurry doesn’t mean there aren’t substantial differences, on average, between children and adults. But our reasoning is crude. We are not anti-children’s suffrage because of the category “children,” but because of the collective disjunction of characteristics we associate underneath this umbrella. It seems like Americans would just as easily disenfranchise even larger portions of the population, were we able to pass it off as democratic in the way that it has been normalized for children.

Further, it is not impossible to extend absolute suffrage. Children so young that they literally cannot vote — infants — could have their new voting rights bestowed upon their caretakers, since insofar as infants have interests, they almost certainly align with their daily providers. This results in parents having an additional vote per child which transfers to their children whenever they request them in court. (Again, I’m not endorsing this policy, just pointing out that it is possible.) The undemocratic and elitist nature of a voting age cannot be dismissed on the grounds that universal suffrage is “impossible.”

It is still perfectly fine to say “Well, I don’t want the boobgeoisie voting about what I can do anyway, so a fortiori I oppose children’s suffrage,” because this argument asserts some autocracy anyway (so long as we assume voting as an institutional background). The point is that the reason Americans oppose enfranchising children is because of elitism, and that the disenfranchising of children is undemocratic.

In How Democratic is the American Constitution? the closest Robert Dahl gets to discussing children is adding the Twenty-Six Amendment to the march for democratic progress, stating that lowering the voting age to eighteen made our electorate more inclusive (p. 28). I fail to see why lowering it even further would not also qualify as making us more inclusive.

In conclusion, our system is not democratic at all,
Because a person’s a person no matter how small.


Deep Learning and Abstract Orders

It is well known that Friedrich Hayek once rejoiced at Noam Chomsky’s evolutionary theory of language, which stated that the faculty of speaking depends upon a biological device which human beings are enabled with. There is no blank slate and our experience of the world relies on structures that come from the experience in itself.

Hayek would be now delighted if he were told about the recent discoveries on the importance of background knowledge in the arms race between human beings and Artificial Intelligence. When decisions are to be taken by trial and error at the inside of a feedback system, humans are still ahead because they apply a framework of abstract patterns to interpret the connections among the different elements of the system. These patterns are acquired from previous experiences in other closed systems and provide with a semantic meaning to the new one. Thus, humans outperform machines, which work as blank slates, since they take information only from the closed system.

The report of the cited study finishes with the common place of asking what would happen if some day machines learn to handle with abstract patterns of a higher degree of complexity and, then, keep up with that human relative advantage.

As we stated in another place, those abstract machines already exist and they are the legal codes and law systems that enable their users with a set of patterns to interpret controversies concerning human behaviour.

What is worth being asked is not whether Artificial Intelligence eventually will surpass human beings, but what group of individuals will overcome the other: the one which uses technology or the one which refuses to do so.

The answer seems quite obvious when the term “technology” is related to concrete machines, but it is not so clear when we apply it to abstract devices. I tried to ponder the latter problem when I outlined an imaginary arms race between policy wonks and lawyers.

Now, we can extend these concepts to whole populations. Which of these nations will prevail over the other ones: the countries whose citizens are enabled with a set of abstract rules to based their decisions on (the rule of law) or the despotic countries, ruled by the whim of men?

The conclusion to be drawn is quite obvious when we are confronted with a so polarised question. Nevertheless, the problem becomes more subtle when the disjunction concerns on rule of law vs deliberate central planning.

The rule of law is the supplementary set of abstract patterns of conduct that gives sense to the events of the social reality in order to interpret human social action, including the political authority.

In the case of central planning, those abstract patterns are replaced by a concrete model of society whose elements are defined by the authority (after all, that is the main function of Thomas Hobbes’ Leviathan).

Superficially considered, the former – the rule of law as an abstract machine – is irrational while the latter – the Leviathan’s central planning – seems to respond to a rational construction of the society. Our approach states that, paradoxically, the more abstract is the order of a society, the more rational are the decisions and plans that the individuals undertake, since they are based on the supplementary and general patterns provided by the law, whereas central planning offers to the individuals a poorer set of concrete information, which limits the scope of the decisions to those to be based on expediency.

That is why we like to state that law is spontaneous. Not because nobody had created it -in fact, someone did – but because law stands by itself the test of time as the result of an evolutionary process in which populations following the rule of law outperform the rival ones.

On Antitrust, the Sherman Act and Accepted Wisdom

I am generally skeptical of “accepted wisdom” on many policy debates. People involved in policy-making are generally politicians who carefully craft justifications (i.e. cover stories) where self-interest and common good cannot be disentangled easily.  These justifications can easily become “accepted wisdom” even if incorrect. I am not saying that “accepted wisdom” is without value or that it is always wrong, but more often than not it is accepted at face value without question.

My favorite example is “antitrust”.  In the United States, the Sherman Act (the antitrust bill) was first introduced in 1889 (passed in 1890). The justification often given is that it was meant to promote competition as proposed by economists. However, as often pointed out, the bill was passed well before the topic of competition in economics had been unified into a theoretical body.  It was also rooted in protectionist motives. Moreover, the bill was passed after the industries most affected saw prices fall faster than the overall price level and output increase faster than the overall output level (see here here here here and here). Combined, these elements should give pause to anyone willing to cite the “accepted wisdom”.

More recently, economist Patrick Newman provided further reason for caution in an article in Public Choice. Interweaving political history and the biographical details about senator John Sherman (he of the Sherman Act), Newman tells a fascinating story about the self-interested reasons behind the introduction of the act.

In 1888, John Sherman failed to obtain the Republican presidential nomination – a failure which he blamed on the governor of Michigan, Russell Alger. Out of malice and a desire of vengeance, Sherman defended his proposal by citing Alger as the ringmaster of one of the “trusts”. Alger, himself a presidential hopeful for the 1892 cycle, was politically crippled by the attack (even if it appears that it was untrue). Obviously, this was not the sole reason for the Act (Newman highlights the nature of the Republican coalition which would have demanded such an act). However, once Alger was fatally wounded, Sherman appears to have lost interest in the Act and left others to push it through.

As such, the passage of the bill was partly motivated by political self-interest (thus illustrating the key point of behavioral symmetry that underlies public choice theory). Entangled in the “accepted wisdom” is a wicked tale of revenge between politicians. At such sight, it is hard not to be cautions with regards to “accepted wisdom”.

2018 Hayek Essay Contest

The 2018 General Meeting of the Mont Pelerin Society will take place from September 30 – October 6, 2018 at ExpoMeloneras and Lopesan Hotels in Meloneras, Gran Canaria, Canary Islands. As with past general meetings, the Mont Pelerin Society is currently soliciting submissions for Friedrich A. Hayek Fellowships. The fellowships will be awarded through the Hayek Essay Contest.

The Hayek Essay Contest is open to all individuals 36 years old or younger. Entrants should write a 5,000 word (maximum) essay that addresses the quotation(s) and question(s) detailed on the contest announcement (available at the above link). The deadline for submissions is May 31, 2018. The winners will be announced on July 31, 2018. Essays must be submitted in English only. Electronic submissions should be sent in PDF format to this email address ( Authors of winning essays must present their papers at the General Meeting to receive their award. The essays will be judged by an international panel of three members of the Society.

Please feel free to share this announcement with any individuals who may have an interest in submitting an essay for consideration of a fellowship award. All questions may be directed to the MPS Young Scholars Program Committee by email at or phone at +1.806.742.7138.

MPS Young Scholars Program Committee

Law and Liberty: Hobbesians vs Rechtsstaaters

Individual freedoms are tethered to law, but in what sense? We could call Hobbesian the insight into law and liberty which states that norms are addressed by the sovereign power to the individuals. The Sovereign is the only one who prescribes the law, being the individuals subject to the legal obligation. Even the limitations to the power of the government in the face of fundamental rights – such as the Due Process – are not expressed in terms of limits to the sovereign power but of commands to the public servants: for example, the imprisonment of an individual without accomplishing the legal standards of Due Process allows the government’s agents to punish their unlawful colleagues. The law is always addressed, in the last resort, to an individual by the State.

Proponents of individual liberty thus advocate equality before the law, which means simply “only one state for everyone,” or “individual rights before the state.” Examples include the said guarantee of Due Process, or a system of check and balances among the branches of the government as safeguards against arbitrary coercion by the State. However, they all have a severe difficulty in defending individual liberties without recourse to an extra-system concept, such as natural law, moral duties, or political statements. The emphasis in formal legal procedures would be the utmost in coherence between liberalism and Hobbesianism, but it is easy to slide from procedures that protect individual legal rights to devices assuring the enforcement of the law – which has the individual as its last subject. It seems it is hard to restrain oneself from invoking metaphysical rights when it comes time to advocate individual liberty.

Nevertheless, it should not be surprising that every limit to political power of the State over the individual depends on metaphysical notions, since it is a tenet of the Hobbesian insight that the power of the State is absolute. Moreover, the Minimal State – a true effort to advocate individual liberty without resting on metaphysical notions – owes to Thomas Hobbes its main inspiration.

Historical evidence suggests, however, that in the relation among power, law and liberty is the other way round. The development of common law in England and the phenomenon of the reception of the Roman law in Continental Europe show that law is not necessarily created ex nihilo by the State. The State could provide enforcement to a given system of law, as it is shown in the book System of the Modern Roman Law (System des heutigen Römischen Rechts), by F. K. v. Savigny. Moreover, the States could adapt legal notions originating in private law to elaborate procedures to follow in the public sphere. The principle “venire contra factum proprium non valet” was born in private law and today is a guarantee to the individual against the arbitrary action of the State.

This is the process of rationalization of power described by Max Weber, the German concept of Rechtsstaat or the widely known concept of “Rule of Law.” In that process of rationalization, lawyers outshone the sages, the mandarins, and the humanists in the administration of public affairs by incorporating legal procedures and principles taken from private law. There might be differences among these concepts and historical events, but their common invariances allows us to get the gist.

There is, also, an evolutionary case for the relative advantages of a Rechtsstaat over the notion of sovereignty. In the former the decisions are principle-based while in the latter they are mostly taken by expediency. Since the said principle of venire contra factum proprium non valet and other legal procedures constrain rulers’ whims, government actions are more rational, in the sense of transitivity of preferences.

Thus, in the long run, the performance of the Rule of Law is higher than the Rule of Men. Lawyers outshine mandarins in government posts and, in turn, governments run by lawyers outperform governments run by mandarins. One device to switch from a given form of State to another one is, for example, immigration: people flock to countries where the Rule of Law prevails.

What we have called the Hobbesian insight into Law and Liberty is tied up with the definition of liberty as power. Thus, the equation of law and liberty becomes a zero-sum game: the more state, the less individual liberty, and the less state, the more individual liberty. On the other hand, the definition of individual liberty as absence of arbitrary coercion engages with the concept of Rule of Law: to substitute principles for expediency reduces arbitrary coercion and, thus, enlarges individual liberty.

Does this Rechtsstaat insight into Law and Liberty dissolve the question about the dimensions of the State? Not at all. But it provides a more strategic view: a big State will demand more decisions to be taken on expediency. A small state will provide two advantages to the enjoyment of individual liberty as absence of arbitrary coercion: more decisions based on principles and a larger space for the law to evolve by its own and discover new legal principles in response to the constant changes in the society.

But even if the conclusions might be the same (a smaller State), the two insights carry within them a set of premises that ineluctably will unravel by themselves when it comes the time of a deeper controversy. Then, the Hobbesian Insight will present the disjunction between Minimal State and metaphysical boundaries to the absolute power of the State. The Rechtsstaat strain, instead, will provide a humbler but subtler position.

A feast of classical liberal thought: Mont Pelerin Society in Stockholm

Last week, Stockholm hosted a special meeting of the Mont Pelerin Society (MPS) on the populist threats to the free society. MPS meetings are held under Chatham House rules, which means I cannot report in any detail about the proceedings. Yet a few impressions can be shared.

I have been a MPS member since 2010, when my nomination was accepted at the end of the general meeting in Sydney. In those days the old rules still applied, which meant you had to attend three meetings before you could be nominated for membership. However, this strict rule led to the erosion of the membership base (the MPS was literally starving out), so the rules to join as a member have been made easier.

My first MPS meeting was in Guatemala City, in 2006. I had participated in the essay contest for young scholars which is always organized in the run-up to the bi-annual General Meetings. As a runner-up I won free entry to the meeting. I happened to be in the south of the USA in the weeks before, doing PhD research at the Mises Institute in Alabama, so could easily make the trip to Central America. Because I lived in Manila during those years, I could also easily attend the 2008 meeting in Tokyo.

I had are number of reasons for wanting to join the MPS. First of all, the quality of the meetings offer a great chance to listen to and speak with the leading scholars within current classical liberalism. Increasingly multidisciplinary (back in the old days the economists dominated), the programme committees of the MPS Meetings always succeed in attracting an impressive crowd of high quality speakers and commentators from across the globe. I always find this a great intellectual treat. Second, the meetings are characterized by extremely pleasant and open atmospheres. Everybody mingles with everybody, you can talk with everybody, no matter your age, or academic background. Thirdly, the meetings take place across the globe, so they offer a great opportunity to travel and see places. Although it must be added that even when you do not stay at the conference hotel, the meetings are never very cheap, so it remains an investment. Fourth, for a Hayekian like myself, it feels very good to be a member of the society founded by the master himself, which had and has such an illustrious membership, ever since its beginnings 70 years ago.

Besides the big one week General Meetings held every two years, there are shorter regional or special meetings in the other years. Last week’s MPS meeting in Stockholm was a special meeting, very well-organized by the Ratio Institute. The theme was discussed from numerous angles, through sessions on Russia’s foreign policy, the economic issue of secular stagnation, or the danger of political Islamism. Two sessions were focused on new classical liberal ideas to counter the threats. At the opening day there was a session for young scholars to present papers. This was of course also a way to attract new talent and interest in the MPS. And at the end of the second day there was something different: beer tasting while listening to Johan Norberg. A rather splendid combination!

The speakers and commentators were high level, including MPS chair Peter Boettke (George Mason), David Schmidtz (Arizona), Deirdre McCloskey (Illinois), John Tomasi (Brown), Leszek Balcerowic (former president of Poland’s Central Bank), Russia specialist Anders Aslund, German thinker Karen Horn, Jacob Levy (McGill), Mark Pennington (Kings College London), Paul Cliteur (Leiden), Amigai Magen (Hoover Institution), and the energetic Ralf Bader (Oxford). A lineup like this guarantees a number of new insights, solid arguments, and general intellectual stimulus. Many answers were provided, yet in true academic fashion, many questions remain.

While well represented in this program, International Relations are normally a minor topic at MPS meetings, and there are not many IR scholars around (nor are sociologists or legal scholars, by the way). Personally I am convinced that the future appeal of classical liberal thought also relies on taking into account world affairs. So there is a need to keep on writing and publishing about it, to expand the basis for thought, also in the MPS. To hear about the concerns and insights of other classical liberals in other disciplines helps my thought process, besides remaining up to speed with current classical liberal issues in general.

So it was a great meeting again, And for all you young scholars out there: if you are interested make sure to regularly check the MPS website ( to see if there are opportunities to participate in one of the upcoming meetings.