Hayek, or the Recursive Model of the Rule of Law

What Friedrich A. Hayek sought with his three volumes of Law, Legislation and Liberty was to propose a legal-political system in which the Rule of Law principle would not be de facto replaced by the rule of men through laws (Rule by Law).

To do this, he built a recursive model of a legal system whose initial conditions were the legal customs as the only source of law. Thus, in such a system, the rule of recognition  –in the sense of H.L.A. Hart’s concept– would initially regard the customary law as the only set of rules to be enforced by the government.

In the said model of legal system, the law is separated from the state, which enforces the former and legitimises itself by that enforcement. Sovereignty resides in the law and the state is its agent and executor – but, without the said enforcement, the customary law -the initial condition of the recursive model- would only be natural law.

From a genealogical point of view, in Middle Ages monarchs were entitled as rulers by a law of succession derived from customary norms and it is from that mediaeval period that the term “Rule of Law” comes: Since their prerogative of ruling had come from legal customs, the rulers had the moral duty of enforcing them – which, in turn, acted as a limit to the power of the rulers, or at least to their legitimacy.

Evolutionarily, the administration of public affairs -as related by Max Weber in his General Economic History– ceased to be in the hands of wise men and mandarins, advisers to the monarchs, to become a matter managed by jurists, who incorporated for the decision-making and its justification the procedures and figures of private law: the social contract, the commission, decisions based on evidence, etc.

Such evolutionary emergence of the public law set new boundaries to the legitimate use of power by the rulers, in many occasions needing a written document to warrant them, such as the Magna Carta, the Bills of Rights or the declarations inserted in the Modern constitutions.

Consequently, successive layers of legality were added to the initial conditions of Hayek’s model of political legal system: constitutional laws, declarations of rights, principles and guarantees, procedural laws and statutes. It was these same legal concepts of private law that allowed giving a legal foundation to the nascent republics of the Late Middle Ages, for example, the legal figures of association, representation, etc..

However, Hayek already complained in The Constitution of Liberty –and later in Law, Legislation and Liberty again- about the consequences of the sovereignty of parliaments, that is, the competence of the legislative chambers to enact laws, replacing legal customs. It was the principle of popular sovereignty that rendered obsolete the principle according to which customary law acted as a limit to the rulers separated from the people, since the people went on to govern themselves and make their own laws.

This emancipatory narrative -in terms of Jean Francois Lyotard- collides with the evidence that, on numerous occasions, we do not obtain in return the Rule of Law but rather the rule of men through laws emanating from political will. Consequently, the path is open for critics of the Rule of Law to denounce its inconsistencies: a government of laws created by the rulers themselves is a mere masking of the political will, which is not legitimated by law but by the pure imposition of the force.

That is why the ultimate message of Hayek’s legal and political works consists of a sort of return to initial conditions of his model of relations between law and politics: legal norms are ineffective without the enforcement provided by the public force, but the process of creating them can be disentangled from that enforcement.

Of course, the choice by the political system on which norms to enforce -that is, the enunciation of a rule of recognition- can mean in itself an act of creation of law; but if, on the other hand, a constitutional system foresees the separation of the legislative functions from the functions of government, obliging the latter to enforce the laws emanating from the former, the distinction between the Rule of Law over the rule of the men is restored.

As Hayek himself recognized in his work, his proposal to create two separate assemblies, one legislative and the other governmental, is not really a proposal intended to be put into practice, but rather an ideal model that exemplifies a concept that is as fundamental as it is abstract and elusive: the separation between law and political power.

Beyond the feasibility of Hayek´s model, it does provide a demarcation criterion between liberal democracy and authoritarianism: the one that indicates that the main duty of a government towards its citizens is to enforce the rules of peaceful coexistence that respect the so-called fundamental rights, such as life, personal liberty and property, and that any program of social transformation or economic development can never justify their abrogation. Thus, any rulers who do not take into account such institutional restrictions to their policies would be involved in a true road to serfdom.

Stimuli For Your Moral Taste Buds [June 2022 Edition]

Today’s food-for-thought menu includes Eco-Feminism, Indics of Afghanistan, the Fetus Problem, a Mennonite Wedding, the Post-Roe Era, and the Native New World. I’m confident the dishes served today will stimulate your moral taste buds, and your gut instincts will motivate you to examine these themes in greater depth.

Note: I understand that most of us are unwilling to seek the opposing viewpoint on any topic. Our personal opinions are a fundamental principle that will not be altered. However, underlying this fundamental principle is our natural proclivity to prefer some moral taste buds over others. This series represents my approach to exploring our natural tendencies and uncovering different viewpoints on the same themes without doubting the validity of one’s own fundamental convictions. As a result, I invite you to reorder the articles I’ve shared today using moral taste buds that better reflect your convictions about understanding these issues. For instance, an article that appeals to my Care/Harm taste bud may appeal to your Liberty/Oppression taste bud. This moral divergence reveals different ways to look at the same thing.

The Care/Harm Taste Bud: Eco-feminism: Roots in Ancient Hindu Philosophy

The Nature-Culture Conflict Paradigm today reigns supreme and seeks to eradicate cultures, societies, and institutions that advocate for and spread the Nature-Culture Continuum Paradigm. Do you see this conflict happening? If so, can you better care for the environment by adopting a Nature-Culture Continuum paradigm? Is there anything one may learn from Hindu philosophy in this regard?


Due to a focus on other issues in Afghanistan, such as terrorism, food and water shortages, and poverty, the persecution of religious minorities in the nation is not as generally known, despite the fact that it has been a human rights crisis for decades. Ignorance of this topic poses a serious risk to persecuted groups seeking protection overseas. Western governments have yet to fully appreciate the risks that Afghan Sikhs and Hindus endure. I also recommend this quick overview of the topic: 5 things to know about Hindus and Sikhs in Afghanistan.

The Liberty/Oppression Taste Bud: Biological Individuality and the Foetus Problem

As I’ve discovered, abortion was one of the earliest medical specialties in American history when it became entirely commercialized in the 1840s. As a result, the United States has been wrestling with moral issues about abortion for 182 years! The abortion debate has gone through rights-based assertions and advanced to claims about the policy costs and benefits of abortion and now appears to have returned to rights-based arguments in the last 50 years. Regardless of where you stand on this debate, this much is clear: in the U.S., the circle of moral quandary surrounding abortion never closes. Nevertheless, what is the source of the moral ambiguity surrounding abortion? Can the philosophy of biology help us better comprehend this moral quandary?

Some philosophers would argue that the issue of biological individuality is central to this moral dispute. But why is biological individuality even a point of contention? Counting biologically individual organisms like humans and dogs appears straightforward at first glance, but the biological world is packed with challenges. For instance, Aspen trees appear to be different biological units from above the ground; nonetheless, they all share the same genome and are linked beneath the ground by a sophisticated root system. So, should we regard each tree as a distinct thing in its own right or as organs or portions of a larger organism?

How Aspens Grow?

Similarly, humans are hosts to a great variety of gut bacteria that play essential roles in many biological activities, including the immune system, metabolism, and digestion. Should we regard these microorganisms as part of us, despite their genetic differences, and treat a human being and its germs as a single biological unit?

NIH scientists find that salmonella use intestinal epithelial cells to colonize the gut

Answers to the ‘Problem of Biological Individuality’ have generally taken two main approaches: the Physiological Approach, which appeals to physiological processes such as immunological interactions, and the Evolutionary Approach, which appeals to the theory of evolution by natural selection. The Physiological Approach is concerned with biological individuals who are physiological wholes [Human + gut bacteria = one physiological whole], whereas the Evolutionary Approach is concerned with biological individuals who are selection units [Human and gut bacteria = two distinct natural selection units].

Is a fetus an Evolutionary individual or a Physiological individual? If we are Evolutionary individuals, we came into being before birth; if we are Physiological individuals, we come into being after birth. While the Physiological Approach makes it evident that a fetus is a part of its mother, the Evolutionary Approach makes it far less clear. But is there an overarching metaphysical approach to solving the problem of biological individuality? Can metaphysics (rather than organized monotheistic religion) lead us to a pluralistic zone where we can accept both perspectives with some measure of doubt?

Philosophy and Phenomenological Research

The Loyalty/Betrayal Taste Bud: What I Found at a Mennonite Wedding

Do you consider the United States to be a high-power-distance or low-power-distance culture? Coming from India, I used to see the U.S. as the latter, but in the last 12 years of living here, it is increasingly becoming the former.

Does your proximity to an authority strengthen or lessen your loyalty?


The Authority/Subversion Taste Bud: The Post-Roe Era Begins Political and practical questions in an America without a constitutional right to abortion.

[In the link above, make sure to listen to both Akhil Amar and Caitlin Flanagan]

I also recommend reading Why Other Fundamental Rights Are Safe (At Least for Now)

Is there a flaw in the mainstream discussion of the U.S. Constitution that the abortion debate has brought to light? In my opinion, although predating the U.S. federal constitution and being significantly more involved in federal politics and constitutional evolution, each American state’s constitution is widely ignored. Keep in mind that state constitutions in the United States are far more open to public pressure. They frequently serve as a pressure release valve and a ‘pressuring lever’ for fractious U.S. national politics, catalyzing policy change. Regrettably, in an era of more contentious national politics, mainstream U.S. discourse largely ignores changes to state constitutions and spends far too much time intensely debating the praise or ridicule the federal Constitution receives for specific clauses, by which time the individual states have already shaped how the nation’s legal framework should perceive them. Altogether, a federal system, where individual state constitutions are ignored, and conflicts are centralized, is the American political equivalent of Yudhishthira’s response to the world’s greatest wonder in the thirty-three Yaksha Prashna [33 questions posed by an Indic tutelary spirit to the perfect king in the Hindu epic of Mahabharata].

The Sanctity/Degradation Taste Bud: The Native New World and Western North America

The emergence of a distinctly Native New World is a founding story that has largely gone unrecorded in accounts of early America. Here’s an excerpt from the article:

To round off this edition, a Western movie question: Are there any examples of American Westerns developed with the opposing premise—valuing the First Nation’s People’s agency, which has gained historical support? Why not have a heroic Old World First Nation protagonist who safeguards indigenous practices and familial networks in a culturally diverse middle ground somewhere in the frontier country, shaping and influencing the emerging New World? Can this alternate perspective revitalize the jaded American Western movie genre?

[Here’s the previous edition of Stimuli For Your Moral Taste Buds]

On Persons, Individuals, and Humans

It is only from a notion of the human, common to all men, that the concept of person can be dissolved into the idea of individual.

The relevance of the concept of person lies in its ability to describe functional relationships with its environment: sui juris or alieni juris, noble, patrician, commoner, serf or lord, father, minor, capable, incapable, etc. In pre-modern times, according to each function, a normative system exclusive to caste, position or estate, known as “privilege”, corresponded.

Rather, Modernity dissolves fixed personal relationships into an undifferentiated diagram of spheres of individual autonomy. Each human being ceases to be a person attached to a certain fixed function in the social fabric and, by the mere fact of being human, is the holder of his sphere of individual autonomy, equal to that of any other human being.

The legal system ceases to govern particular relationships between people to become a structure empty of intentions and purposes, which only determines procedures and delimits equal and predictable fields of interaction and clear methods for the resolution of disputes among the holders of the different spheres of individual autonomy.

The principle ceases to be that of difference to become that of equality. The difference becomes the exception, to be justified on a functional basis that results in a public benefit.

However, in the non-political sphere, that of civil society, the difference does not disappear, but is expressed in each of the individual exceptionalities, within each respective sphere of individual autonomy, while it is accidental and irrelevant to the legal-political system.

There are certain special situations framed within specific legal regimes, such as minority and intra-family relations, which enshrine assistance obligations, usufruct rights and a system of representation and guardianship.

Consequently, the role of the public sphere within civil society is defined by the procedure to be followed to settle the conflicts that could arise from the collision of the different spheres of individual autonomy.

From the moment in which each human being is an autonomous individual, the legitimate exercise of power in relation to the population does not consist in giving specific orders to subjects but in administering a set of procedures whose specific purpose is to serve as a means for different individuals settle their disputes peacefully.

Of course, in Modernity and in liberal democracies relations of command and political obedience subsist, but within the governmental structures themselves, which in turn incorporated procedural rules that limit discretion in the exercise of power and establish functions and hierarchies that define competencies and delimit individual responsibilities.

However, both modern government structures and the legal consecration of a social structure composed of equal individuals in dignity and respect are not the result of an invention but the consequence of a historical evolution whose becoming does not cease and whose hindrances persist in the field of the aforementioned civil society.

That the differences between people are exclusively functional and that such functions report a benefit to all the individuals involved, in such a way that none of them is used exclusively as a means, but is seen as an end in itself, is an imperative for the public sphere, but only a programmatic aspiration in the field of civil society.

In turn, that each person deserves equal consideration and respect is a discovery in the true sense of the word. Quentin Skinner in “The Foundations of Modern Political Thought” recounts the role played in the Late Middle Ages by the discussion that every person was endowed with an immortal soul, deserving of salvation, for the subsequent conceptualization that every human being is worthy also of legal protection regarding their fundamental interests, such as their life, their personal freedom, or their possessions.

Regarding the natural law doctrine of human rights, which states that human beings enjoy a certain set of guarantees and rights against the state and against other people, it is usually dismissed as metaphysical.

However, such statement can be understood more clearly if it is related to its historical evolution: the different freedoms already existed but assigned to different people according to their caste or status, who had an immediate and specific interest in their protection.

To cite an example, in the Partidas of Alfonso X of Castille, we find every detail of social life regulated: some had the right to bear arms but not to work, since they had to be available to the king in his court to eventually go to war; others had the right to exercise a certain trade or profession, excluding those who did not belong to their corporation, but they were not free to change their activity, neither in terms of their subject matter nor their geography. In the pre-modern world, the holders of freedoms had a specific interest in defending them, but their ownership depended on circumstances that, in the vast majority of cases, were out of their control and, in others, obsolete in terms of their functionality.

Given that this legal-political system had very little plasticity to adapt to changes in the surrounding circumstances, it was generally inefficient, stagnant, and unstable and, therefore, conflicts manifested themselves in recurrent revolts.

Modernity consisted in the universalization of liberties. This means that freedoms – or immunities against power – that already existed and whose entitlement was limited to reasons of belonging to certain castes or estates, to the exclusion in many cases of one another, began to be extended to all human beings by the mere fact of being such.

That is to say, there is nothing metaphysical in the natural law doctrine of human rights. It actually consists of the universalization of rights that already existed and were recognized.

The novelty that this brought is that each human being ceased to be considered as a person in relation to his family, his social status or his caste, to be considered as an autonomous individual and equal in rights to any other, holder of rights that he was actively interested in exercising as well as others whose content he hardly had any news or specific interest.

In turn, men exchanged differentiated rights that protected certain personal interests in exchange for new abstract freedoms, the same for each of the remaining individuals. As a result, each person gained potential spheres of action and saw specific regions of power restricted.

The nobleman gained a freedom to work and trade that he may or may not have an interest in exercising, but he lost the power he had over his serfs or was displaced by commoner bureaucrats in government functions. The shoemaker gained the freedom to emigrate to other cities or to change his trade to that of a blacksmith, in which he may or may not be interested, but he also received competition in his own town from other new shoemakers who emigrated from other latitudes, who effectively exercised such rights.

Such transformations and their discontents can be verified in the conservative authors of the beginnings of the Contemporary age, as is the case of Charles Dickens, among others.

That is why the universalization of fundamental rights -for the English tradition- or natural rights -for the American conception- constitutes both a discovery of intellectual research on historical evolution and a political program.

Whether such an extension is desirable and to what extent it should be continued or reversed largely defines political positioning from right to left. For this reason, historical evolution is not a legitimizing device in itself, but a process of discovery of various forms of social and political organization that is subject to a critical evaluation regarding which institutions and practices to incorporate, preserve, resist or modify.

On the open texture of conflicts

Just as language carries with it a phenomenon of open texture, according to which the reference and meaning of some of its terms are modified in response to changes in the environment — for example, saying that the head of state is commander in chief of the armed forces implies different denotations and connotations as war machines, communications, and command styles evolve -, conflicts that are prolonged over time also undergo changes in the terms that define them, as their surrounding context varies.

Thus, a dispute between individuals about the ownership of a certain asset, such as that of two heirs in dispute over the award of a property that is part of the hereditary heritage, will have to vary in intensity according to the changes in the market value of the said asset and according to the changes in the needs of those heirs as well.

Note, likewise, that the said transformation of the conditions in no way affects the conformation of the hereditary rights, but rather it is in the interest of each of the parties to enforce them.

Under certain circumstances, some of the said heirs will have to prefer to maintain the undivided inheritance and under others they will have to activate the dissolution of the hereditary community, generating a conflict in case of disparity among the heirs.

Although rights protect interests -such as life, personal liberty or stability upon possession-, not all interests deserve legal protection -such as the claim of an individual to hold a monopoly in the production of a certain good- and, among those interests which do enjoy legal protection, it will be relative and hierarchical.

Given that a legal system forms a set of consistent normative parameters, the changes in the decisions of individuals are motivated by variations in the relative value of the interests protected by said legal system, also assuming that such individuals are rational agents – i.e., they have transitive preferences.

As a corollary of the above, the normative system, while remaining identical to itself, will have to be neutral for the dynamics of the conflict, since the parties will have shaped their plans and expectations in accordance with their prescriptions.

That is why we often find analyses devoid of axiological and merely descriptive approaches. This does not mean that the rules, be they positive or natural, are not observed, but rather that a degree of compliance and constant enforcement is verified, which makes it possible to look for the reason for the changes in the decisions of the agents in other conditioning factors, such as the technology, the relative prices of goods, climatic phenomena, etc., etc..

Nor does this mean that the law does not evolve or undergo disruptive changes: there are legislative changes and judicial precedents that are modifying the content of the norms and, in turn, the norms themselves suffer the consequences of the open texture of the language in which they are expressed.

When these changes do not respond to a change in the value of the interests, but respond to a need of the legal system itself to maintain a stable and predictable order of events, the legal system maintains its neutrality, since it is transformed, jurisprudential or legislatively, when its formulations – even when they have a high degree of enforcement – are not sufficient to maintain a peaceful order of human interaction and, therefore, legal innovation has the function of reinforcing the maintenance of peace.

At this point in the discussion, it is appropriate to venture into the consequences of a legislative or jurisprudential change that had in view a different purpose than strengthening the function of law as a mechanism of social control aimed at maintaining peace between individuals who interact with each other.

If the change is jurisprudential, many times the law solves such a phenomenon endogenously: any jurisdictional pronouncement by a judge or court that departs from the content of the legal norms or that such departure is motivated by the transgression of its legal duty of impartiality with respect to of the parties to the conflict will render such pronouncement null and void and the judges will have incurred prevarication.

However, when a law is sanctioned by the legislature in contravention of its duty to dictate general and abstract norms and, instead, has the aim of favouring vested interests, little can be done beyond achieving a declaration of unconstitutionality, either by part of a constitutional court or by an ordinary court in the exercise of diffuse control of constitutionality.

This is for those cases in which the law in question also violates laws of a higher rank such as the Constitution.

Notwithstanding, when a norm is constitutional and, however, it was not enacted for the purpose of legislating in general and abstract terms, but instead sought with its sanction to favour certain vested interests to the detriment of others or public interests, little can be done for the legal system to correct itself according to an endogenous mechanism and the law, therefore, will have lost its neutral character.

It is this lack of neutrality of the legal system that delegitimizes it as a peaceful means of resolving disputes between individuals and, consequently, sharpens the intensity of conflicts, whether they consist of disputes between individuals or escalate into political questioning regarding the legitimacy of the legal-political system itself.

It was not for nothing that there were revolutions, such as the French one, which led to the enactment of civil codes, as a way of crystallising the reestablishment of a neutral normative order, generally described as fair. Note, likewise, that the Napoleonic Code did not contain any innovations, but rather consecrated –and synthesised- legislatively the jurisprudential evolution of the previous centuries.

Similarly, a territorial dispute between two countries could remain diplomatic for decades and, under a change of circumstances, escalate the conflict to a warlike stage.

This change in circumstances may be due to a redefinition of the interests of one or both countries, discoveries of wealth in the disputed territories, or technological innovations that modify the relationship of the respective countries with the geography of the disputed territory.

Note that in no way do these changes in the conditions surrounding the conflict affect a change in the titles of sovereignty over the disputed territory, but what changes is the intensity of the interest in it and the calculation of the chances of success in the event of a war escalation.

However, at the international level we find a plurality of normative sources -international custom, treaties, the norms of international organisations-, without courts of application in most cases and without a clear enforcement system to guarantee impartiality.

Despite arbitral awards can be found among small nations, which submit a territorial issue to the arbitration of a third power or institution that enjoys prestige between both countries, an issue that the parties involved do not consider of vital importance to them; but in most cases we are faced with conflicts or claims that will last over time, as long as the war alternative is disadvantageous for both parties.

Sustaining the principle that all agents who make decisions are rational, it is appropriate to ask under what conditions for such agents it is still reasonable to maintain a negotiation and under what others the most reasonable indicates escalation in the intensity of the conflict.

When the controversy occurs between two parties subject to the jurisdiction of a state and the object of the controversy has a certain relevance, the options of the parties follow one another between negotiating or going to trial.

On the other hand, among sovereign nations, although there is the alternative of submitting to an arbitration award, when the disputed issue interferes with a vital interest or makes the country’s own survival, the military confrontation constitutes the option to negotiation.

Paradoxically, when two individuals have a confrontation that is so insignificant as to be taken to court, the options also lie between negotiation or the deployment of violence -verbal or moderately physical, below the threshold of what the law would consider a crime. This occurs because both the international sphere and certain spheres of human interaction are naturally regulated.

From our point of view, this is one of the most relevant theoretical controversies: if such a natural system can be entirely deduced from reason -as maintained from Hugo Grotius onwards- and, therefore, can be stated and agreed upon by the consensus of the parties through a rational discussion, or if we can characterize natural law as an empirical normative system -as conceived by David Hume in the 18th century and later rescued by Friedrich A. Hayek- that grows spontaneously.

This last conception about the empirical character of the international rule-based order can be a convincing alternative to both realism and idealism. Even more so when the question of the neutrality of the liberal international order is questioned, both from realism and from critical currents. Since the empirical rule system emerges at the same time as the expectations of the agents, the neutrality of the resulting order will be highly probable.

Therefore, in accordance with this vision, the variation in the intensity of the conflicts will not have to be sought or justified in a modification of the rules of the game, but in a change in the relative weight of the interests in dispute, that is, in the open texture of the nature of conflicts.

A short reflection on the unintended political consequences of the right of due process

Some days ago, The Economist published an article about the spread of the morality councils in the villages of China, whose members meet to praise the ones who they regard as well-behaved and humiliate the others who don’t. The publication used its characteristic sense of irony by pointing out that, finally, the highest ranks of the villagers found a way to exercise their “right to speak”.

Nevertheless, the said irony might lead us to a different kind of reflection on the political right to speak and the rights of due process, such as public hearings, an impartial tribunal, and an opportunity to be heard. Public hearings and impartiality are interrelated since it would be much harder for a tribunal to deliver an arbitrary adjudication if it is overseen by the society. But the public watch of the trials and the right to be heard are even more interrelated. Through these devices, the whole civil society wields the power to take notice of both the claims of the prosecution and of the ones of the prosecuted individuals, and, thus, form its judgment about the impartiality of the tribunal.

Moreover, public hearings endow the prosecuted individuals with the opportunity to exert their political right to speak without any restraint. In a political context of heavy or increasing authoritarianism, any procedures -even the one of a morality council- could resound with the voice of the contrarian. Thus, the right of due process could have -although unintended- political consequences.

Daron Acemoglu and James A. Robinson relate a poor justice system with the causes of why nations fail, exemplified by government exerting their interference over the judiciary power. Thus, extractive political institutions encroach upon the economic institutions, turning them extractive as well. Nevertheless, defending the procedural rights of the due process could work as a way to contribute to restore both inclusive political and economic institutions.

Of course, a tight authoritarian regime, such as China’s, is aware of the political consequences of free speech, even in the realm of a judiciary process. However, this insight could be profited by the countries where democracies are feeble but still exist. Promoting oral and public judiciary procedures, even for the most insignificant matters, and the right of the prosecuted individual to be heard is not just an issue of lawyers, but acquire a political dimension. The rights of due process endow the civil society with powerful tools to get familiar with main strands of the Rule of Law and the dissidents with the opportunity to exercise their own right to speak.

The immunities of the due process have a long history of discovery and extension to all human beings, beginning with the Magna Carta Libertarum of 1215, that is not fulfilled to this day. It should be something to be pondered that they are historically previous to Modern democracy. Surely, they are a logical condition as well.

Some derivations from the uses of the terms “knowledge” and “information” in F. A. Hayek’s works.

In 1945, Friedrich A. Hayek published under the title “The Use of Knowledge in Society,” in The American Economic Review, one of his most celebrated essays -both at the time of its appearance and today- and probably, together with other studies also later compiled in the volume Individualism and Economic Order (1948), one of those that have earned him the award of the Nobel Prize in Economics, in 1974.

His interpretation generates certain perplexities about the meaning of the term “knowledge”, which the author himself would clear up years later, in the prologue to the third volume of Law, Legislation and Liberty (1979). Being his native language German, Hayek explains there that it would have been more appropriate to have used the term “information”, since such was the prevailing meaning of “knowledge” in the years in which such essays had been written. Incidentally, a similar clarification is also made regarding the confusions raised around the “spontaneous order” turn, which he later replaced by that of “abstract order”, with further subsequent replacements:

Though I still like and occasionally use the term ‘spontaneous order’, I agree that ‘self-generating order’ or ‘self-organizing structures’ are sometimes more precise and unambiguous and therefore frequently use them instead of the former term. Similarly, instead of ‘order’, in conformity with today’s predominant usage, I occasionally now use ‘system’. Also ‘information’ is clearly often preferable to where I usually spoke of ‘knowledge’, since the former clearly refers to the knowledge of particular facts rather than theoretical knowledge to which plain ‘knowledge’ might be thought to prefer” . (Hayek, F.A., “Law, Legislation and Liberty”, Volume 3, Preface to “The Political Order of a Free People”.)

Although it is already impossible to substitute in current use the term “knowledge” for “information” and “spontaneous” for “abstract”;  it is worth always keeping in mind what ultimate meaning should be given to such concepts, at least in order to respect the original intention of the author and perform a consistent interpretation of his texts.

By “the use of knowledge in society”, we will have to refer, then, to the result of the use of information available to each individual who is inserted in a particular situation of time and place and who interacts directly or indirectly with countless of other individuals, whose special circumstances of time and place differ from each other and, therefore, also have fragments of information that are in some respects compatible and in others divergent. 

In the economic field, this is manifested by the variations in the relative scarcity of the different goods that are exchanged in the market, expressed in the variations of their relative prices. An increase in the market price of a good expresses an increase in its relative scarcity, although we do not know if this is due to a drop in supply, an increase in demand, or a combined effect of both phenomena, which vary joint or disparate. The same is true of a fall in the price of a given good. In turn, such variations in relative prices lead to a change in individual expectations and plans, since this may mean a change in the relationship between the prices of substitute or complementary goods, inputs or final products, factors of production, etc. In a feedback process, such changes in plans will in turn generate new variations in relative prices. Such bits of information available to each individual can be synthesized by the price system, which generates incentives at the individual level, but could never be concentrated by a central committee of planners. In the same essay, Hayek emphasizes that such a process of spontaneous coordination is also manifested in other aspects of social interactions, in addition to the exchange of economic goods. They are the spontaneous –or abstract- phenomena, such as language or behavioral norms, which structure the coordination of human interaction without the need for a central direction.

“The Use of Knowledge in Society” appears halfway through the life of Friedrich Hayek and in the middle of the dispute over economic calculation in socialism. His implicit assumptions will be revealed later in his book The Sensory Order (1952) and in the already mentioned Law, Legislation and Liberty (1973, 1976 and 1979). In the first of them, we can find the distinction between relative limits and absolute limits of information / knowledge. The relative ones are those concerning the instruments of measurement and exploration: better microscopes, better techniques or better statistics push forward the frontiers of knowledge, making it more specific. However, if we go up in classification levels, among which are the coordination phenomena between various individual plans, which are explained by increasingly abstract behavior patterns, we will have to find an insurmountable barrier when configuring a coherent and totalizer of the social order resulting from these interactions. This is what Hayek will later call the theory of complex phenomena.

The latter was collected in Law, Legislation and Liberty, in which he will have to apply the same principles enunciated incipiently in “The Use of Knowledge in Society” regarding the phenomena of spontaneous coordination of individual life plans in the plane of the norms of conduct and of the political organization. Whether in the economic, legal and political spheres, the issue of the impossibility of centralized planning and the need to trust the results of free interaction between individuals is found again.

In this regard, the Marxist philosopher and economist Adolph Löwe argued that Hayek, John Maynard Keynes, and himself, considered that such interaction between individuals generated a feedback process by itself: the data obtained from the environment by the agents generated a readjustment of individual plans, which in turn meant new data that would readjust those plans again. Löwe stressed that both he and Keynes understood that they were facing a positive feedback phenomenon (one deviation led to another amplified deviation, which required state intervention), while Hayek argued that the dynamics of society, structured around values such like respect for property rights, it involved a negative feedback process, in which continuous endogenous readjustments maintained a stable order of events. Hayek’s own express references to such negative feedback processes and to the value of cybernetics confirm Lowe’s assessment.

Today, the dispute over the possibility or impossibility of centralized planning returns to the public debate with the recent developments in the field of Artificial Intelligence, Internet of Things and genetic engineering, in which the previous committee of experts would be replaced by programmers, biologists and other scientists. Surely the notions of spontaneous coordination, abstract orders, complex phenomena and relative and absolute limits for information / knowledge will allow fruitful contributions to be made in such aspects.

It is appropriate to ask then how Hayek would have considered the phenomenon of Artificial Intelligence (A.I.), or rather: how he would have valued the estimates that we make today about its possible consequences. But to adequately answer such a question, we must not only agree on what we understand by Artificial Intelligence, but it is also interesting and essential to discuss, prior to that, how Hayek conceptualized the faculty of understanding.

Friedrich Hayek had been strongly influenced in his youth by the Empirical Criticism of his teacher Ernst Mach. Although in The Sensory Order he considers that his own philosophical version called “pure empiricism” overcomes the difficulties of the former as well as David Hume’s empiricism, it must be recognized that the critique of Cartesian Dualism inherited from his former teacher was maintained by Hayek -even in his older works- in a central role. Hayek characterizes Cartesian Dualism as the radical separation between the subject of knowledge and the object of knowledge, in such a way that the former has the full capabilities to formulate a total and coherent representation of reality external to said subject, but at the same time consists of the whole world. This is because the representational synthesis carried out by the subject acts as a kind of mirror of reality: the res intensa expresses the content of the res extensa, in a kind of transcendent duplication, in parallel.

On the contrary, Hayek considers that the subject is an inseparable part of the experience. The subject of knowledge is also experience, integrating what is given. Hayek, thus, also relates his conception of the impossibility for a given mind to account for the totality of experience, since it itself integrates it, with Gödel’s Theorem, which concludes that it is impossible for a system of knowledge to be complete and consistent in terms of its representation of reality, thus demolishing the Leibznian project of the mechanization of thought.

It is in the essays “Degrees of Explanation” and “The Theory of Complex Phenomena” –later collected in the volume of Studies in Philosophy, Politics, and Economics, 1967- in which Hayek expressly recognizes in that Gödel’s Theorem and also in Ludwig Wittgenstein’s paradoxes about the impossibility of forming a “set of all sets” his foundation about the impossibility for a human mind to know and control the totality of human events at the social, political and legal levels.

In short, what Hayek was doing with this was to re-edit the arguments of his past debate on the impossibility of socialism in order to apply them, in a more sophisticated and refined way, to the problem of the deliberate construction and direction of a social order by part of a political body devoid of rules and endowed with a pure political will.

However, such impossibility of mechanization of thought does not in itself imply chaos, but on the contrary the Kosmos. Hayek rescues the old Greek notion of an uncreated and stable order, which relentlessly punishes the hybris of those who seek to emulate and replace the cosmic order, such as the myth of Oedipus the King, who killed his father and married his mother, as a way of creating himself likewise and whose arrogance caused the plague in Thebes. Like every negative feedback system, the old Greek Kosmos was an order which restored its lost inner equilibrium by itself, whose complexities humiliated human reason and urged to replace calculus with virtue. Nevertheless, what we should understand for that “virtue” would be a subject to be discussed many centuries later from the old Greeks and Romans, in the Northern Italy of the Renaissance.

A Note on “Hayekian” Empirical Normative Systems

In the first volume of Law, Legislation and Liberty (1973), we will find the most daring theses of Friedrich Hayek regarding the problem between law and politics. Just as his economic work of the 1930s and 1940s had been, in his opinion, misunderstood by his colleagues; just as he was surprised to hear the fervent readers of The Road to Serfdom (1945) attribute positions to him that he had not exposed there; also his legal-political work triggered simplifying interpretations that conceal the main contributions, still relevant for this time.

In Norms and order –that is the title of that first volume- the author does not propose to abandon legislation and return to customary law, nor to replace the political decisions of the administration of state affairs by a government of judges. On the contrary, it is stated there with a clarity that leaves no room for doubt that the powers of the state must be organised and operate in accordance with the rules and procedures of public law, made up of legislative bodies endowed with rules with a clear teleological content.

On the other hand, the genuinely innovative thesis that Hayek exposes in the aforementioned volume consists in affirming that the interactions between individuals in the scope of their exchanges destined to cooperate freely and voluntarily in the coordination of their respective life plans are structured around a set of abstract rules –that is, lacking a specific purpose- and general rules whose observance could occur in practice without the need for a positive enunciation. It is for this reason that Hayek affirms that the law is not created, but discovered, and that it is not legislated, but rather evolves.

On this last point, John Gray at his time, many years after Hayek’s death, lamented that his former mentor had spent the last years of his life discussing pseudoscientific ideas around alleged evolutionary theories. However, such suspicion cannot fall in any way on the triptych of “Law, Legislation and Liberty” (1973; 1976 and 1979).

What is found in the said work is an express taking sides with a tradition of thought that extends from the Late Middle Ages, the Renaissance and the beginnings of Modernity: the school of natural law understood as something different from an ideal, derived from reason, about what should be, but to a set of normative beliefs effectively extended in a given population, which condition their behaviour, contribute to the formulation of a critical judgement about the value of actions and allow the formation of expectations about the expected behaviour of peers and, therefore, facilitate the ideation and coordination of individual plans.

For Hayek’s own epistemological conceptions, this tradition of thought acts as a kind of discovery mechanism on certain aspects of the legal phenomenon and the structural characteristics present in all human interaction and therefore his constant appeal to the history of ideas.

Hayek, in a peaceful and incontrovertible way for any specialist in the matter, syndicates Hugo Grotius as the initiator of the rationalist and idealist school of natural law, although holding him responsible, as he did, for the evolution of the identification of legislation as the only and exclusive source of law could be considered as an overly emphatic statement, which would abandon the very premises of cultural evolutionism to which Hayek himself adhered: if Grotius’ theses were so successful, it was largely due to the subsequent advent of the national states.

Although the truth is, however, that the characterization of Natural Law as a derivative of reason later allowed, in the 20th century, to receive from legal positivism the rejection of all Natural Law as “metaphysical”, thus leaving the formulation of the Law at the mercy of politics and, with it, in a serious crisis the very notion of “Rule of Law”.

It is for this reason that Hayek set out to rehabilitate the empiricist current of Natural Law, which seeks normative statements not in the derivations of reason, but in the discovery of notions about what could be considered right behaviour towards others through the investigation of patterns of behaviour actually observed in a given community that is structured around peaceful exchanges repeated over time.

The archetypal example of such kinds of normative structures given in practice, independently of their enunciation by any type of legislator, is represented by the communities of merchants: a repeated series of regular exchanges generates certain expectations about the conduct to be observed by the members of said group of merchants, which also allow to conceive and coordinate other business plans. For this reason, many times, conflicts between merchants are resolved through friendly settlers, or arbitrations, and judges resort to the opinion of specialised experts in a certain commercial area to dictate their decisions.

Such examples do not constitute proof that all law is spontaneous, but rather a powerful counterexample to the theses that hold, on the one hand, that legislation is the only possible source of law and those that, on the other, affirm that all law must be derived from reason.

Although both antithetical visions are synthesised in the figure of the rational legislator, whose legislative enunciations are derivatives of public reason, this in turn receives -in the first half of the 20th century and today- challenges from Realistic doctrines, which state that legislative activity is not a product of public reason, but of the exercise of political will.

It is in relation to this contest that Hayek plays the card of cultural evolutionism and of the legal system as a spontaneous order. In this sense “Law, Legislation and Liberty” is a new elaboration of “The Road to Serfdom”.

This theoretical controversy maintains its full validity to date: the confrontation that the predominant species of Liberalism, of an idealistic and rationalist nature, seems to be losing against Political Realism, which places political will above a system of human coexistence based on rules and not on discretionary decisions. In Hayek’s case, he sides with a rule-based political system, but what sets him apart from prevailing Liberalism is that such rules are not derived from reason, but rather emerge from experience.

This experience not only produces norms of just conduct to be discovered by the courts and enunciated by legislators, but it is also responsible for structuring the very apparatus for understanding such norms. It is for this reason that Hayek himself, in his book The Sensory Order (1952), called his particular philosophical vision “pure empiricism.”

Of course, an empiricist conception of Natural or Fundamental Rights – based on Adam Ferguson, David Hume and Edmund Burke, among others – is not exempt from difficulties, the main one being the task of identifying those empirical norms that effectively contribute to maintain a peaceful order of coexistence and provide them with the corresponding enforcement.

However, despite such difficulties, affirming that the existence of Natural Rights emerges from the experience that structure a peaceful order of coexistence and that they are the ones that legitimise the exercise of power and not vice versa, already constitutes in itself an affirmation worthy of being considered and, eventually, defended.

The Federation of Free States: Growing pains

We’re continuing our thought experiment on adding more states to the American republic.

Our initial experiment added 29 states to the union in 2025. After a few decades of relative success (the entire world grew economically from 2025 to 2045), the bicameral Congress of free states was willing to accept several new members, who in turn were willing to trade their sovereignty for two seats in the Senate. The polities that joined the federation of free states in the second peaceful geographic expansion of the Philadelphian federal order were varied, but only somewhat predictable. The Madisionian compound republic rearranged the map once again. Here is what it looks like in 2045:

The red places were “states” in 2025, the orange places are new “states” in 2045.

As you can see, most of the expansion came in North America, East Asia, and West Africa. The experience of Canaan, England, and Wales hasn’t been bad, but enough nationalist-secessionist sentiments remain in these three “states” that none of their neighbors thought that giving up their sovereignty for Senate seats was worth it. All three economies grew, and peace finally came to Canaan, but if peace, wealth, and security from predation were the only things that people wanted then we wouldn’t be people. We’d be something else entirely. People want freedom, and the compound republic – the federation of free states – did not yet show in 2045 it was capable of extirpating the menace of nationalism from human existence.

The success of the ranching states of Mexico – Coahuila, Tamaulipas, and Nuevo León – within the United States prompted several more Mexican states to apply for statehood, but the pushback against too many states joining the union was stern. Yucatán and Chihuahua were added as is, giving the Senate four more seats, but the states of Zacatecas, Durango, and San Luis Potosí had to combine into one state (they called it San Luis Potosí, and it’s about the size of Nevada) in order to join the Philadelphian world order.

The prairie provinces of Canada also did well for themselves since 2025. So well, in fact, that five more provinces applied to join. However, Congress did not want to add five more states with such sparse populations, so the Atlantic provinces of Nova Scotia, Prince Edward Island, New Brunswick, Newfoundland, and Labrador merged to become a state that they called Nova Scotia, a massive landmass with enough people for only one or maybe two representatives. By the way, from 2025 to 2045, several old American states — Washington, Oregon, and Vermont – all held referendums on whether to leave the Madisonian republic and join Canada (or go it alone), but the referendums have proved to be unsuccessful.

Liberia’s success in the American federation is perhaps the most encouraging progress of all. Crime rates skyrocketed once Liberia joined the union, but this only shows how the American legal system does such a wonderful job of protecting property rights. Violent crime dropped, but crimes involving property rights reached an all-time high, which means that property rights in Liberia are finally being protected by a state strong enough to do so. The GDP (PPP) per capita of Liberia quadrupled from 2025 to 2045. Several neighboring states took notice, but only one, Sierra Leone, joined the federation outright.

Several Nigerian and Ghanaian polities joined the republic. All of the polities started out as administrative units within Ghana and Nigeria, and there were too many that wanted to join. So, they borrowed from San Luis Potosí’s playbook and merged with each other before applying for statehood as larger polities. From Nigeria, the states of Oyo (made up of five Nigerian states), Biafra (made up of eight states), Benin (made up of four states), and Bayelsa (three states) all joined. The states are all from the south of Nigeria.

Ghana sent three states to the republic: Ashanti (made up of five Ghanaian provinces), Volta (made up of three provinces), and Cape Coast (three provinces). The 11 provinces that made up the three new states were all from Ghana’s south. It should be noted the the Ashanti region had a relatively strong sense of nationalism when it applied for membership to the federation, and that the extirpation of this nationalism in exchange for self-government in a compound republic was not a problem for its inhabitants.

Colombia and Panama. The Caribbean experience has had less of a “wow factor” than Liberia or Mexico. Economic growth in Antilles was a little bit better than the regional average, but not by much. The big change was demographics, as many seniors from the original 50 states moved to Antilles, and many young people from Antilles moved to the original 50 states. The crime rate was similar to that of Liberia, too, with violent crimes dropping but property crimes increasing a little bit. Most of the countries in Central America (sans Costa Rica) and all of the Pacific countries in South America applied for membership in one form or another. However, only four states were added in 2045: three from Colombia and the whole of Panama. The four states got together and pulled out a map of 19th century Gran Colombia to put together a plan for federation. Isthmo (Panama), Cundinamarca (made up of eight Colombian states), Magdalena (made up of six states), and Cauca (five states) all joined the federation of free states.

Things went so well in East Asia and the Pacific that the entire country of Vietnam applied lock, stock, and barrel. Like Japan, South Korea, and the Philippines in 2025, Vietnam had too many states for the federation so six regions joined instead: Bắc Trung Bộ, Bắc Bộ, Tây Nguyên, Đông Nam Bộ, Tây Nam Bộ, and Đồng Bằng Sông Hồng. The Vietnamese now enjoy the military and economic benefits that come with being federated with the compound republic of the United States.

Further thoughts

The Canadian and West African states are the only ones with English-language speakers. Nevertheless, English continues to be employed as the lingua franca of the federated polity. This has produced a class division between those who can speak English and those who cannot, and eventually English will be spoken by nearly everybody in the polity (now numbering just over one billion souls), but the native languages are unlikely to disappear. They’ll continue to evolve on their own lines, and most people in the federation will simply be able to speak more than one language. The English of the Constitution and Bill of Rights will no doubt become antiquated as English evolves, but it’s already pretty antiquated today (2022) and there’s been no real challenge in 250 years to English’s status as the lingua franca of the republic.

Reactions to the compound republic from other states

Perhaps the most interesting aspect of the United States’ decision to apply federation to its foreign policy is the reaction of other states. The Russians, who it could be argued had an alternative to the Westphalian order in the 19th century (and this is why it pursued its own foreign policy agenda throughout the Cold War, rather than for the exportation of the Revolution), are still doing what they’ve been doing since 2000: recognizing small states along their vast border and slowly chipping away at the losses of their empire. States such as Donetsk, South Ossetia, and Crimea are recognized as states by Russia, Belarus, and, say Kazakhstan, but in 2045 the compound republic decided to build upon its foreign policy of federation by recognizing these claims to independence. This means that post-Soviet states like Ukraine and Georgia lose territory, but it doesn’t necessarily make Russia stronger and it doesn’t mean freedom is in decline. Out of two states (in this example), five now exist, and there’s nothing to suggest that they won’t lean on the compound republic rather than the Russian Federation.

The CCP turned inward, especially once the compound republic called its bluff on Taiwan. Like Russia, it has been argued that an alternative state system to Westphalia existed prior to 19th century European imperialism. The Belt and Road Initiative was supposedly part of the Tianxia state system, but regardless of whether or not you buy this argument (I don’t), China’s expansion ceased once Japan, South Korea, and Taiwan joined the Philadelphian union. The CCP became even more repressive and paranoid. The non-Han grew more despondent, and the non-Mandarin speaking Chinese, especially those living along the wealthy seaboard of the South China Sea, grew angry.

The Europeans and their interstate system continued to try to keep the Westphalian European Union alive, but without the abrogation of state sovereignty, the EU continued to be ineffectual. The French, taking a page from the American playbook, revived an old effort to federate with its former colonies. The French continued to adhere to a Westphalian logic in this effort, and the French Union floundered as badly as the European Union. The key to Madisonian compound republic’s success has been its abrogation of state sovereignty (which is “traded” for seats in the Senate). Portugal reached out to Brazil and Angola to discuss a Lusophone federation, and ties became closer, but Westphalian sovereignty trumped all discussions of cooperation and the Portuguese found themselves in the same situation as the French: members of two ineffectual confederations that are built upon Westphalian nation-state sovereignty.

The remnants of the British and Spanish Empires (Peru, Argentina, Australia, India, Pakistan, Sri Lanka, New Zealand, Iraq, Egypt, Saudi Arabia, the British Caribbean, etc.) continued along the same path as the Europeans. Economic growth continued at its slow pace, but compared to the societies living within the compound republic, it was becoming clear that the Westphalian remnants were losing ground, especially in regards to liberty, equality under the law, and democratic governance.

In 2045, the American republic added 22 more states, making the federation a conglomerate of 101 “states” and the District of Columbia. Liberty is on the rise, and despotism is getting cornered.

Monday’s Vintage Whines

  1. Brilliant metal puns shall not be forgotten
  2. I generally like Noah Smith’s economics made simple explanations and have read him since his old blog days (I still check his substack, and Bloomberg, pieces)
Skyclad rocked (never got interested in their pagan tendencies and gibberish fonts, though) – Source

So, NS reposted The liberty of local bullies, a decade-old critique of libertarianism (using, in perfect economist style, a completely libertarian world as the basic assumption). I am sure almost everything is already said and done (late to the party!), but here goes anyway (from “theoretical” to “real-world” order):

  1. Those cartels that will push anyone not to their liking aside would not necessarily be invincible. Cartels/ trusts/ consortia/ whatever (probably) use government regulations to dig-in even more solidly. Take away the government’s heavy hand, and they get more exposed to competition.
  2. The high transaction costs of moving/ working elsewhere also go the same way.
  3. Liberal thought is not blind to misuses of private power (the usual quote here being *the* Adam Smith). Αt least one European liberal strand requires active trust-busting policies as a prerequisite for protection against such consolidations (ordoliberalism of 1930s-50s). Also, the mother of legislative trust-busting, the US Sherman Act of 1890, was signed by a Republican President. Since NS hedges as he gears his offensive to American expressions of the liberty creed, I am at a loss if this law could claim a liberal (libertarian?) root.

Monday Links and unders – NOLite te bastardes

Also, armchair public policy analysis. Caveat emptor: may contain BS

Not posting here could be due to good reasons, or nasty reasons. Fortunately, it was a very good reason that kept me from posting for few weeks (hint: it was expected, and involves diapers). The (invisible to the naked eye) gap was covered via a spontaneous, à la WWE tag team display by Brandon (who, btw, restarted nightcapping, yay! And then got tarpitted again, nay).

Has the U.S. Supreme Court Effectively Overruled Roe v. Wade? (Verfassungsblog)

A take on the recent abortions slugfest. A decisive overturn of the post – 70s judicial status will probably spell similar changes elsewhere. The shadows have been stirring, the battlefront is wide, the divisions remain deep. Only recently, a proxy “skirmish” took place in Greece: A so-called “1st Panhellenic Conference on Fertility” or something got cancelled, after its anachronistic/ derogatory undertones provoked a digital uproar:

Ovaries and Outrage: How Social Media Took Down Greece’s Fertility Conference (MDI)

This metal feminist slogan came to mind:

Nolite te bastardes carborundorum

The Handmaid’s Tale

I have not read the book (nor watched the series), but this mock-Latin line rings timely and has an interesting history itself.

Lynn Parramore at INET argues that modern libertarians tend to overlook the subject, while the likes of Ayn Rand and Murray Rothbard were assertive in defending the right to abortion as part of the self-determination of one’s body/ life in general:

Why Aren’t Libertarians Protesting the Freedom-Busting Texas Abortion Law? (Institute for New Economic Thinking)

INET is not particularly fond of the liberty creed, but still, the picture is disheartening. What’s worse, it fits my own troubling perception (incomplete as it is, based on limited observations) that this kind of intrusion into individual freedom ranks lower than others. The whole issue seems mostly relegated to a “feminist” or “gender” only thing, bogged down by religion and politics, an underdog among individual rights (Scott Lemieux over at Lawyers, Guns & Money also notes something along this lines. LGM has been consistently slamming the Texas law and the SCOTUS response). And that’s why I did not exactly lament the conference cancellation, even if it borderline breached freedom of speech. It rhymed with an underway underhand undoing of that underdog.

A post in RCL (picked by Brandon here) makes an interesting case regarding the feasibility of free choice for both parts of the equation, doctor and patient. However, it also reminded me of this haunting story, and the possibility of a gap between elegant theory and brutal reality:

Italian doctors on trial for manslaughter after refusing abortion (Financial Times)

The FT article also showcases the heavy information asymmetries that plague healthcare services-at-large, which serve as a foundation for state intervention, be it regulation, public supply or whatnot. At least in the realm of textbook econ as I remember it.

Dismantling government policy – source

The other day, I used the same apparatus – old reliable econ – peppered with some basic public choice insights to smite a couple of state initiatives (in my head, that is).

(1) The Greek government recently ramped-up the vaccination push through mandates, prohibitions and fines. More heavy – handed intervention will beget more bottom-up webs that game the system, I decreed (right, late Mancur Olson documented this in his Power and Prosperity book, especially if the public’s trust is lacking, just pushing open an already unbarred door here). As it turns out:

Ten vaccination centers scrutinized over suspected fake Covid certificates (eKathimerini)

(2) A law enacted in early 2020 awards a one-off allowance of EUR 2,000 (that would be like four times the Greek minimum wage) for every childbirth (there are some conditions to be met, income level, residence etc, but they are quite lax). So, a generous gesture, meant to incentivize people to have children, and also to offer support with child-rearing costs, according to the relevant explanatory memorandum. The law is seated in the state’s duty to protect “family…motherhood and childhood”, somewhere in the underbelly of our Constitution’s list of individual and social rights.

At the face of all these, the free-market credo in my econ grasp whispered:

I will not fail in my strike, warrior. I will not fail in my strike.

The Last Mythal

I unfolded my offensive in two lines. First, the smell test: Nudging a life-changing decision with just a hand-out seems overstretched (a scheme of consistent financial aid is a different beast). And second, the econ-kick-in: This subsidy (you can actually feel my contempt here) will have the fate of other transfers that mess with the price mechanism. Will not the maternity services providers just jack-up prices to take a slice? Presto! (I left the actual cost – organizing/ funding – of implementing the policy plus the arbitrariness of the sum out, as too easy targets).

Well, the jury is still out about the first part, since it’s mostly an issue of empirical analysis. It surely made a nice PR exercise (that could also have a positive effect, and maybe this was the main point from the start). My price call went out of the window, though. The relevant costs have barely budged from the last time we needed maternity services, few years ago. First-hand observation is not statistics, but it did the trick. Nice, neat and clean inferences can still be BS, obviously.

Some Monday Links – Of bloody summer stains, busted hopes and laundries

Also lingo. And beards.

Why Cuba is having an economic crisis (Noahpinion)

The Language of Totalitarian Dehumanization (Quillette)

On the Cuba events. Governments and protests, now that’s a strained relationship. Talking about the so-called “Second World” countries, Nikita Khrushchev did not even know what booing is, until he encountered it in his visit to London in 1956.

Few years later, during a massive strike in the Russian city of Novocherkassk, a crowd stormed the central police station. Whether it was a genuine assault, or a naive display of defiance from a people inexperienced in protesting, the government’s fearful puzzlement turned to cold, brutal aggression. Unarmed protesters at the center of the city, mistakenly thinking that those days were over, remained steadfast at the face of warnings to disperse. That is, until security forces opened direct fire against them. The ensuing massacre was covered-up for three decades. Since this was an à la Orwell un-event, no high-ranking officials’ records were stained.

Khrushchev’s aloof ignorance strikes a nerve, contrasted with the people’s heartbreaking one. Both glimpses are captured in the brilliant (though somewhat uneven) Red Plenty, by Francis Spufford.

All things said, Karl Marx Loved Freedom (Jacobin). More beards.

The Greek government, like its French counterpart, is escalating the push for vaccinations. As constitutional scholars argue the limits of state power regarding personal freedom and the public good, historical precedents are brought forth (for the US, c. early 1900s), involving mandatory vaccinations, quarantines and discrimination. The discussion draws from equal protection of the laws jurisprudence and smoothly led me to Yick Wo v. Hopkins (1886):

Yick Wo v. Hopkins established fair implementation of statutes (History Net)

The decision set a milestone and has been cited some 150 times.

The backdrop of the case is rich. As it turns out,

An 1880 ordinance of the city of San Francisco required all laundries in wooden buildings to hold a permit issued by the city’s Board of Supervisors. The board had total discretion over who would be issued a permit. Although workers of Chinese descent operated 89 percent of the city’s laundry businesses, not a single Chinese owner was granted a permit.


The regulation was one in a series of many that reflected the anti-immigrant (especially anti-Chinese) sentiment, following the influx due to the Gold Rush (1849).

An illustration of the time, echoing the 3-day pogrom vs Chinese immigrants, San Francisco Jul. 1877 – Source

Yick Wo: How A Racist Laundry Law In Early San Francisco Helped Civil Rights (Hoodline)

A particularly badass line, from the unanimous opinion authored by Justice Stanley Matthews, shows that the Court did not hold back:

Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

Caging the leaders of the future

My journey back to school has made me realize the skill school forbade me from learning is the single most important one I use in my job: delegation.

I have been running a research company I founded for 5 years now, and no single skill I have learned matters to my leadership abilities more than delegation. The only reason our company thrives is that other people do things I could never do myself, and it would be self-destructive and short-sighted to even try to hog the work on any task.

However, I returned to law school to finish my degree, and felt the limitations of my student life fall again squarely on my shoulders. Every assignment, every class felt uncomfortably heavy almost immediately, not because they were meaningless or useless, but because I could not treat them like a problem seeking a solution. Like an obstacle for me to overcome with my greatest asset–my team.

This simple rule, that I must turn in only my own work, makes sense only in the sterile world of the bean counting metric junkies, who worry not about whether I build great things but whether I built them alone. No client has ever peered suspiciously over my work, suggesting that perhaps I may have gotten outside, illicit assistance. Or worse, Googled and found someone else’s solution.

I’m not saying that all schools must immediately revise their grading systems to teach leadership or fit my needs. Far from it–I am telling anyone else struggling under the burdens of leadership, your school simply cannot help you. Recognize that there is no way to prepare for real challenges by getting high grades on fake ones. And learn to value the skills of others, lest you drown in your own inbox and incompetence.

Monday’s frivolous, flimsy, frail flailings

Or, some Monday links on flavors, figurative flags and fails

I mean, it would be impossible to have a business like this in the States, a wood-burning fire – illegal, the meat – illegal, the dog – illegal, the cheese sitting out uncovered – illegal. Basically, everything that makes this place good would be illegal in the United States.

Anthony Bourdain: No Reservations ep. 1 – 01 France: Why the French don’t suck (Jul. 2005)

The other day, Brandon highlighted (the review of) a cultural history book, one that documents the postwar shift of cultural gravitas from Paris to New York. So, the talk is about the big league, the respectful duo of countries that gave us, among other things, modern constitutionalism and an understanding of the natural hue of fundamental rights. Here, I venture to present a sincere, if arbitrary (and somewhat superficial, since I never learned French, to my mother’s disappointment) selection of other Franco-American bites, that shadowed greater trends, or even shaped them.

160 years ago, chef Charles Ranhofer, a Frenchman, traveled to the US for a second time. A year and a false dawn at another premise after, he was hired at Delmonico’s in New York, an already established name. There, he proceeded in making it the definite flagship of American fine dining for the next 30-35 years.

A note issued by the restaurant at the time chef Ranhofer joined the team (1862) – source

His achievements include the invention of renowned dishes, innovations in the dining business model and a massive Franco-American culinary encyclopedia (The Epicurean, 1894, complete with nearly 1000 dishes and thorough guidelines for the proper tables/ menu setting, depending on the occasion). The story fits well in the Gilded Age picture, though I would guess not at front center.

Our own Escoffier (Los Angeles Times)

My pastry trilogy came a full circle only last year, having started some ten years ago: a Mississippi mud pie, a cheesecake (early 2010s, both under the guidance of my wife) and a tarte Tatin (May ‘20 lockdown, unsupervised, our then nearly-5-year old provided merry company). Of the three creations, the final was the most refined, as deserves to a French recipe from late 19th century. Like, it needed some real – if basic – technique, not the average ingredient gathering I was used to. It was also a mild failure. I followed a modern take, one to safely blame without retort. Will try again, someday. There are relevant recipes aplenty, though not in its contemporary Epicurean.

Deconstructing tarte tatin, the classic French dessert (National Geographic)

The Gilded Age was nearing its end when the famous Lochner v New York decision was delivered (1905). The Supreme Court struck down a New York state law on regulating working hours, as a breach of the liberty of contract, which was protected under the Due Process Clause of the Fourteenth Amendment. A few decades later, in United States v Carolene Products Company (1938), an interstate trade case, the Court lowered the standard of review for economic legislation, effectively demoting economic liberty vis-à-vis the other personal liberties.

Both decisions refer to the food industry, bakeries and milk manufacturers respectively. They hold vast importance and warrant further study (for starters – note to self – judicial activism in Lochner, individual rights in Carolene).

As a certain minstrel in a certain fantasy realm would have it, the truth of these decisions became something bigger than the facts. The two cases work as handy banners of the paradigm shift from “unrestrained economic liberty” to “state interventionism”, which happened as right/ left-wing totalitarianisms convincingly challenged the prewar liberal order. Liberal-minded thinkers from the two sides of the Atlantic tried to revitalize the liberal creed in the interwar years. Some of them convened at Paris – few months after the Carolene decision – to honor the visit of the American journalist/ author Walter Lippmann, a notable critic of the New Deal.

There were deep differences, but also a strong agreement on the threat posed by central planning and some tentative overlapping on the perceived failings of “old” classical liberalism and, interestingly, the potential of the state in enhancing personal freedom by pursuing limited social goals. The – middle – way forward needed free markets in a solid, impartial legal frame, which would enforce competition and even provide for a modicum of social justice. By one account, it was during this meeting that the term “neo-liberalism” took root (other ideas included “left-wing” or “constructive” liberalism. Chicago theorists – not represented at the Colloque Lippmann- had previously written about “positive” liberalism), though the term is older. The resolution led to nowhere in particular, since World War II broke out shortly after. It is nonetheless considered a kind-of precursor to the Mont Pelerin Society, the well-known organization founded after a conference in 1947, at the invitation of Hayek.

The neoliberal position is nicely summarized by Milton Friedman (who was present at the 1947 proceedings) in a short piece from 1951:

Neo-liberalism would accept the nineteenth century liberal emphasis on the fundamental importance of the individual, but it would substitute for the nineteenth century goal of laissez-faire as a means to this end, the goal of the competitive order… The state would police the system, establish conditions favorable to competition and prevent monopoly, provide a stable monetary framework, and relieve acute misery and distress.

Neo-Liberalism and its Prospects (Hoover Institution)

The term can also be found in scholarly papers from 50s-60s, but upon closer inspection they mostly focus on its German variant, “ordoliberalism”, which was closely associated with the “social market economy” – the postwar platform that defined West Germany (though voters could hardly tell what it exactly was).

My understanding is that, at some point postwar, the French involvement dwindled. Also, some German theorists fell from grace in the Mont Pelerin Society context, while US membership increased in number and clamor. The whole approach tilted closer to classical liberal/ libertarian (another note to my – European – self, Edwin van de Haar offers precious nuance regarding such terminology in a fresh post) and away from the “free market, strong state” convictions of Colloque Lippmann. However, Hayek retained cordial relations with the University of Freiburg – where the original ordoliberal theses formed.

Then the shade of neo-liberalism faded, only to be invoked as a nebulous catch-all characterization of free market policies a couple of decades later, almost devoid of its competitive and social security chops. It got a life though, since it was fleshed in the founding Treaties of the EU of the 50s. The institutional apparatus of the Union smugly radiates “free market within the properly defined lines” (the US influence is not be discounted, of course. Case in point, competition law).

EU, as with the Colloque: The French grabbed a coffee with the Americans and threw a party. Then, they took a step back as the Germans stopped being shy and hit the decks.

Back to the kitchen. Late 60s and into the 70s, gastronomic developments trace the retooling of society-at-large. That was the time various “new” national cuisines rose, with the French Nouvelle cuisine once again leading the way and the New American Cuisine taking clue from it (in Greece we usually talk about the “(new) urban cuisine” of that period, as the country experienced a rapid urbanization wave in the preceding decades).

Fantasy unchained: A cooking center in 1980 as imagined in 1973 – source

In the meantime: Political turmoil, be it protests or terrorism, there go Bretton Woods arrangements, productivity flattens, environmental concerns kick-in, enter competition from Asia, human rights against the Soviet Block, university studies expand, telecommunications and transport improve, oil crises, the lights go out in Britain and elsewhere, inflation runs, and so on and so forth. The next decade coincided with the emergence of new political leaderships across the West, as the turbulence discredited the previous guard.

The consensus got a drift for privatizations, deregulation and liberalization of international transactions, with US and Britain adhering to it (though to say that they indeed rolled-back the size and scope of State is questionable). This time, the Nobel Memorial Prizes in Economic Sciences awarded to Hayek (1974) and Friedman (1976) served as a flag (or a scarecrow) for the transition to market-based prescriptions.

The endgame was meant to play out in France. In May 1981, Mitterrand won the presidential election on a pretty standard socialist agenda. The program of nationalizations, hiked taxation, capital controls, grants and subsidies run its course till 1983, when the bad results in deficit, employment, inflation and the exchange rate – underlined by an equally poor performance in local elections – prompted a turn to anti-inflationary rigor and a realignment with more market-oriented policies (Spain and Greece, btw, more or less copycatted the French experience).

In a twist in the myth, three Mitterrand guys even went to assume head posts in international bodies, like the IMF (a member of the unholy trinity of the “Washington Consensus”), and promote capital account liberalization from there.

Endnote: The No Reservations show of late Anthony Bourdain had a role in our family’s inconsistent knack for things cooking/ baking. While writing this, I found out that a documentary on the man’s life just premiered at the Tribeca Film Festival.

‘Roadrunner: A Film About Anthony Bourdain’ Review: The Insatiable Life and Enigmatic Death of a Foodie Superstar (Variety)

Encore: To France”, Mike Oldfield’s cover by power metal band Blind Guardian, from their The Forgotten Tales album (1996). Pas mal.

Monday’s Reserved Judgements (and Satisficing Hopes)

Or, some Monday links on central banks, manners over matters and hard-boiled decisions

That bond salesman from the Jazz Age was right. Reserving judgement, at least sometimes, allows for a fairer outcome. Take for example the Brick film (2005), a neo-noir detective story set in a modern Southern California high school. Here in Greece it made some ripples, then it was forsaken for good. Not sure about its status in the US or elsewhere, but “overlooked”/ “underrated” seem to go with it in web searches. I agree now, but when I first watched it, its brilliance was lost to me ( and no, it was not allegedly “ahead of its time”, as some lame progressive metal bands of late 90s hilariously asserted when they zeroed in sales…).

The theatrical release poster – source

The film’s peculiarity was obvious from the titles. A couple of gals left the theater like 10’ in. My company and I were baffled for most part, by the gritty atmosphere. And I have not even begun with the dialogue. The language was something from off the map. As late Roger Ebert noted:

These are contemporary characters who say things like, “I got all five senses and I slept last night. That puts me six up on the lot of you.” Or, “Act smarter than you look, and drop it.”

You see, the whole thing was intended to serve tropes, archetypes and mannerisms from the hard-boiled fiction of 1920s-30s. A manly man vs crime and (corrupted) government, and so on and so forth. We went there, un-f-believably how, clueless about all these. We did, however, make a recurring joke from the following lines:

Brendan: You and Em were tight for a bit. Who’s she eating with now?
Kara: Eating with?
Brendan: Eating with. Lunch. Who.

Seen in this light, everything made sense to my gusto. Anyway, seems that reserving judgements not only does better assessments, but also protects the lazy unaware.

Now, I have previously indicated that I have a soft spot for the “technology of collective decisions” that are central banks. I usually reserve my judgements on them, too. This comment summarises recent developments, including a few interesting links:

In which the Rich Get Richer (Economic Principals)

A new paper by Carola Binder examines central bank independence vis-à-vis a technocratic – populist merge in the age of digital media:

Technopopulism and Central Banks (Alt – M)

The author argues that central banks, supposedly the bastions of technocratic approach, tend to “respond” (i.e. be nudged by and directly appeal) to a perceived “will of the people”, as it is expressed on-line or via events like the “FED Listens” series. This bend acts as a claim to legitimacy and accountability, in exchange of trust and extended discretion, leading to a self-reinforcing circle almost beyond the democratic election process. In other words, not quite the “Bastilles” contra “modern Jacobinism” (to remember how Wilhelm Röpke deemed independent central banks in 1960). A way out could be made, concludes the author, by introducing of a rule-based monetary policy.

Central banks, as institutional arrangements developed mostly during the 20th century, share a common mojo and tempo with the FED. They gradually assumed more independence, and since the emergence of modern financial markets, (even more) power. This rise has been accompanied by increasing obligations in transparency and accountability, fulfilled through an ever-expanding volume of communication in terms of hearings, testimonies, minutes, speeches etc. This communication also plays a role in shaping economic actors’ expectations, a major insight that transformed our understanding of macroeconomic outcomes. Andy Haldane talks all these, along with other delicious bits, in an excellent speech from 2017 (his speeches have generally been quite something):

A Little More Conversation A Little Less Action (Bank of England)

Plot twist: The endeavor of more communication has a so-so record in clarity, as documented by the rising number of “education years” needed to follow and understand central banks’ messages. The same trend goes for the pylons of rule of law, the supreme courts, at least in Europe. We certainly have come a long way since that time at the 70s, when a former Greek central bank Governor likened monetary decisions to a Talmudic text, ok, but we are not there yet.

As a parting shot, let us return just over a year back, when the German Federal Constitutional Court delivered a not exactly reserved decision (5 May 2020) about the European Central Bank’s main QE program. The FCC managed to:

  • scold the top EU Court for flawed reasoning and overreach in confirming the legality of the program in Dec 2018 (the FCC had stayed proceedings and referred the case to the Court of Justice of the EU, for a preliminary ruling in Jul 2017. Europe’s top courts are not members of the Swift Justice League, apparently).
  • indirectly demand justifications from ECB, which is beyond its jurisdiction as an independent organ of EU law, by
  • warning the German public bodies that implement ECB acts to observe their constitutional duties, while
  • effectively not disrupting the central bank’s policy.

Notorious FCC, aka Bundesverfassungsgericht – source

The judicial b-slapping provoked much outcry and theorising, but little more, at least saliently. The matter was settled by some good-willed, face-saving gestures from all institutions involved, while it probably gave a push to the Franco-German axis, to finally proceed in complementing monetary policy measures with the EU equivalent of a generous fiscal package. The rift between the EU and the German (in this case, but others could follow) respective legal orders may never be undone, though. If anyone feels like delving deeper into the EU constellation, here is a fresh long slog:

Constitutional pluralism and loyal opposition (ICON Journal)

I don’t. But then again, maybe I will act smarter than I look.

Transaction Costs are Injustice

Every Law Professor: ‘what is justice?’

In law school, I found that the central goal of legal academics and practitioners was to construct systems of thought, regulation, and courts providing justice. In that endeavor, my peers and professors constantly asked, “what is justice?”

I think well intentioned lawyers would agree, the law should provide access to justice via a system that is generally agreeable to those subjected to it, and that matches in rules what the general public aligns on in spirit. However, beyond these generalities, I find the conversation of ‘what is justice’ to be too abstract to be useful. However, that does not mean we should give up on it, we just need to change approaches, and instead ask ‘what is injustice?’

The Via Negativa

The basis for this is that it is easier to agree on what is unjust than on what is just: injustice in the form of concrete, tangible wrongdoing can be protested to, and people from diverse viewpoints can find agreement in what they mutually despise. Through the via negativa, then, we can fill in the negative space around justice, and by recognizing what it is NOT, we can start to give it form.

I know exactly where I would start, since I spend way too much time around lawyers, and I have noticed that they are open to any discussion of how lawyers can bring justice, but get very prickly if you suggest that the cost in time, money, and lost control by delegating justice to lawyers is in any way problematic. Let’s just say, lawyers don’t like being reminded that they are rent seekers in the process of achieving justice. So, my bold assertion is:

Transaction Costs are Injustice

Let me unpack this. What I mean by this is that, whatever a just outcome may be, it is unjust to delay this outcome when speed is possible, it is unjust to have complexity and opacity when simplicity is possible, and it is unjust to demand control when voluntarism and mutuality is possible. In effect, it is unjust to make the process of finding justice costly.

The Appeal Labyrinth: The Town of Castle Rock v. Gonzales

This issue actually came up to me in a conversation about the heartbreaking case of The Town of Castle Rock v. Gonzales. In June 1999, Jessica Lenahan-Gonzales was a resident of Castle Rock whose estranged husband kidnapped her children from her house, and when she called the police and asked them to enforce an active restraining order against him (he had been stalking her and her children). They did not react quickly, and 12 hours later, her children were found murdered in her estranged husband’s car after he engaged in a deadly shootout with the police.

Now, there is no good outcome from such a situation, especially for Jessica. However, one route for her was to sue the police department under, of all things, under a law originally passed to fight the KKK. In her lawsuit, she claimed the federal government had an interest in enforcement of the restraining order and alleged that the police department had “an official policy or custom of failing to respond properly to complaints of restraining order violations.”

Jessica’s case was initially dismissed by the District Court, but she appealed and, in 2002, it was reversed by the Tenth Circuit, which said she could recover under procedural due process but denied that she had a right to recover via substantive due process (for Scalia’s take on substantive due process in general, see this amazing video). However, the Circuit court also noted that while the town was liable, the officers were covered by qualified immunity.

The town appealed and actually was granted cert by the Supreme Court. SCOTUS reversed the Circuit Court in a 7-2 decision; Scalia wrote for the majority that officers were not required by law to immediately enforce restraining orders, that even if they were it would not give individuals a right to sue (instead, the right would be with the state). Lastly, he noted that even if enforceable, this would have no monetary value and could not lead to an individual payout via Due Process.

So, in the end, SCOTUS gave Jessica nothing. Now, we can all weigh in on whether Scalia ‘did justice’ to her; I have incredible sympathy for Jessica but happen to think his argument is correct, that under the law and Constitution, a restraining order does not give her the right to get money from the town. But I will say that the court did her a great injustice, in sending her down a 6-year rabbit hole of being denied, then allowed, then denied again from recovery. How, then, can we all agree that the court was unjust? The injustice was the delay. The injustice was the tremendous cost in time, money, and emotional damage. The injustice was that the process for answering the question of how a mother should react to the murder of her children and how a town should support her gave no closure, and instead just had transaction costs in landing her, in 2005, exactly in the same spot she was in 1999.

The Lazy Counter: justice takes time!

Now, angry lawyers out there, don’t mistake me here: I am not saying appeals never bring justice. I too am in awe of the work of the Equal Justice Initiative, which uses the appeals process to fight wrongful convictions. I am not arguing appeals are unjust. I am arguing that a legal system that takes 6 years and millions of dollars to answer any question is doing an injustice to EJI’s clients as well. Was Walter “Johnny D.” McMillian served well by a justice system that put him in jail for years while his appeal stagnated?

What is obvious here is that lawyers, in their blindered vision of pursuing justice, are doing their best to get to the right outcome, and while cost may be a consideration for process improvement, it is not a consideration for justice. Maybe a simpler, more transparent, faster court process would do a worse job. But I think that every complexity, opacity, and delay is an injustice done by our system to the people who are seeking justice through it, and I would be amazed if Johnny D would have been thankful for all the technicalities that could be used to get the right outcome after what the Alabama prison system put him through.

Is “justice” trying to do too much?

Unlike in the case of Johnny D, Jessica’s case may show how we stretch the bounds of the system to get to an outcome that feels right, rather than being by the rules. Johnny D was caught up by a racist abuse of criminal justice, which is intended to keep citizens safe; there was no ‘community solution’ available for the murder of which he was falsely accused.

Jessica, however, was simply not treated right by her town. Anyone, regardless of their politics or views, would hope that the town has some level of care for their aggrieved, and that the community could pull together around her. Obviously, this did not happen–and especially not by the town’s police department, which had the opportunity to admit it was asleep at the wheel under the knowledge that they had qualified immunity. Since community solutions were lacking, she brought a civil case, which had a desirable end–helping an aggrieved mother and recognizing that her case was mishandled–but inadequate and undesirable means: lawyers lawyering.

I would be amazed if Jessica herself thought of the connection of: restraining order->Ku Klux Klan Act->federal oversight of law enforcement->property recovery under the Due Process Clause->monetary damages for police inaction. From my legal education, this sounds like the highly technical argument of a creative activist lawyer, who wants to change the law as much as he wants to help his clients. So, were Jessica’s lawyers trying to do too much through the justice system? Was the better solution, then, not to turn back to the community and use public truth-telling or even honest requests for help?

The elites-for-the-people against the people

This made me react against a phenomenon I have seen across law schools, firms, and courts. At elite law schools, the administration touts the number of Access to Justice projects and amicus briefs written by faculty in cases like Gonzales. At elite law firms, they attract top performers with huge salaries, sure, but they mostly talk about how many interesting pro bono cases their associates can take on. And on top Circuit Courts, most famously the Ninth, my classmates go on to help judges think creatively about how to reach just outcomes via legal wrangling. All of these activities are done with a mix of noblesse oblige and self-importance, but are honestly intended to help find justice for the downtrodden. I simply think these do-gooders don’t notice that all these activities are costly.

If you are not a lawyer, you may not realize how systematic this cost has become. Non-lawyers view courts as places where people with causes of action come and get answers based on the law. Lawyers know better: this certainly happens, but in parallel, dozens of groups (plaintiffs lawyers and activist groups on all sides of every issue) are targeting certain laws and certain constitutional questions, and are searching madly for standing. As in, they comb the news and low-level lawsuits to find one they can fund through as many appeals as possible to get the law changed or even just to get a ruling on a fact pattern that is friendly to them. In this, let me pick on my own team: in Carpenter v. US, in which the government used the cell phone location records of Carpenter and his friends without a warrant to arrest and convict them of robberies, there were no fewer than 16 amicus briefs by privacy activists (the CEI, EPIC, EFF, the Fourth Amendment Scholars, and the list goes on). Carpenter v. US was about many deep legal deliberations on the importance of privacy, but I have to say, long before it reached SCOTUS, it was no longer about justice for Carpenter, who had been in jail for two years and who wasn’t getting out even if he won. While it was a victory for my ‘team’ in saying that the government needs warrants if it wants cell phone location records, maybe justice isn’t just about getting victories for my team, if that victory comes at the cost of multiple appeals, dozens of lawyers and clerks, national media coverage, uncertainty for cell phone users and companies, and those 16 institutions writing briefs.

I therefore ask proponents of justice, who are trying to use their elite position to improve the system’s outcomes for the downtrodden, to be a little bit more humble and self-focused. Instead of sitting in seminars or court sessions deliberating on ‘what is justice,’ ask whether the justice system is the right way to seek the right outcome. Ask whether, maybe, it would be better to go out and act positively toward your fellow man rather than demand money, time, and attention to the causes, cases, and opinions of the (all elite and elitist) members of legal groups.

Invasiveness is Injustice

Across all legal disputes, I think the thing that rankles me–and all non-lawyers–is how prominent law is in our lives. If I need to use the justice system, I know it will become a major part of my life’s spending, but even if I never am called into court, I know that court cases are going to continue to be high-profile, lawyers are going to continue to increase their share of the economy, and professors are going to keep publishing books, seminars, articles, and blogs about ‘how can people like me bring just outcomes?’

So, maybe, we can find some justice for all if the legal system simply recognizes that ‘what is justice’ is not a question of all-encompassing, existential values, but a question of how to run an institution. Maybe what is important here is not the rights that we seek to gain for the oppressed by any means necessary, but of building and maintaining a structure (a Constitution, if you will) where anyone can engage, or not, with a system that uses just methods. High cost, delay, opacity, and central control are not just methods and show that the system is not working effectively.

We can all agree, left and right, that regardless of the answer, the system, the method of justice is itself broken if it cannot help but be a burden. Justice should not be so costly in our lives, and it is a failing of lawyers and judges to make their own jobs so important, pervasive, in control. I hope, with all the fantastically intelligent amicus-brief-writers out there, we can find a way to at least cut back that injustice.