Philosophy

Stimuli For Your Moral Taste Buds [June 2022 Edition]

Vishnu Modur Culture, History, Law, Liberty, Philosophy, Politics, Religion , , , , , , , ,

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?

The Fairness/Cheating Taste Bud: 9/11 FAMILIES AND OTHERS CALL ON BIDEN TO CONFRONT AFGHAN HUMANITARIAN CRISIS

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?

https://www.hofstede-insights.com/country-comparison/france,india,the-usa/

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]

Stimuli For Your Moral Taste Buds

Vishnu Modur Culture, Current Events, Economics, Liberty, Links, Philosophy, Politics, Religion , ,

Based on anthropologist Richard Shweder’s ideas, Jonathan Haidt and Craig Joseph developed the theory that humans have six basic moral modules that are elaborated in varying degrees over culture and time. The six modules characterized by Haidt as a “tongue with six taste receptors” are Care/harm, Fairness/cheating, Loyalty/betrayal, Authority/subversion, Sanctity/degradation, and Liberty/oppression. I thought it would be interesting to organize articles I read into these six moral taste buds and post them here as a blog of varied reading suggestions to stimulate conversation not just on various themes but also on how they may affect our moral taste buds in different ways. To some of you, an article that appeals to my Fairness taste bud may appeal to your taste bud on Authority.

I had planned to post this blog yesterday, but it got delayed. Today, I can’t write a blog without mentioning guns. Given that gun violence is a preventable public health tragedy, which moral taste bud do you favor when considering gun violence? Care and Fairness taste buds are important to me.

I’ve only ever been a parent in the United States, where gun violence is a feature rather than a bug, and my childhood in India has provided no context for this feature. But, I can say that India has not provided me with reference points for several other cultural features that I can embrace, with the exception of this country’s gun culture. It is one aspect of American culture that most foreign nationals, including resident aliens like myself, find difficult to grasp, regardless of how long you have lived here. I’d like to see a cultural shift that views gun ownership as unsettling and undesirable. I know it is wishful thinking, but aren’t irrational ideas salvation by imagination?

Though I’m not an expert on guns and conflict, I can think broadly using two general arguments on deterrence, namely:

A) The general argument in favor of expanding civilian gun ownership is that it deters violence at the local level.

B) The general case for countries acquiring nuclear weapons is that it deters the escalation of international conflict.

I sense an instinctual contradiction when A) and B) are linked to the United States. The US favors a martial culture based on deterrence by expanding civilian gun ownership within its borders while actively preventing the same concept of deterrence from taking hold on a global scale with nuclear weapons. Why? The US understands that rogue states lacking credible checks and balances can harm the international community by abusing nuclear power. Surprisingly, this concept of controlling nuclear ammunition is not effectively translated when it comes to domestic firearms control. I get that trying to maintain a global monopoly on nuclear weapons appeals to the Authority taste bud, but does expanding firearms domestically in the face of an endless spiral of tragedies appeal just to the Liberty taste bud? Where are your Care and Fairness taste buds languishing?

Care: The Compassionate Invisibilization Of Homelessness: Where Revanchist And Supportive City Policies Meet/ Liberal US Cities Including Portland Change Course, Now Clearing Homeless Camps

[I’m sharing these two articles because my recent trip to Portland, Oregon, revealed some truly disturbing civic tragedies hidden within a sphere of natural wonders. I hadn’t expected such a high rate of homelessness. It’s a shame. “Rent control does not control the rent,” Thomas Sowell accurately asserts.]

Fairness: America Has Never Really Understood India

[I’d like to highlight one example of how “rules-based order” affected India: In the 1960s, India faced a severe food shortage and became heavily reliant on US food aid. Nehru had just died, and his successor, Prime Minister Lal Bahadur Shastri, called upon the nation to skip at least one meal per week! Soon after, Shastri died, and Prime Minister Indira Gandhi took over, only to be humiliated by US President Lyndon B. Johnson for becoming dependent on food aid from his country. The progressive US President was irked by India’s lack of support for his Vietnam policy. So he vowed to keep India on a “ship-to-mouth” policy, whereby he would release ships carrying food grain only after food shortages reached a point of desperation. Never to face this kind of humiliation, India shifted from its previous institutional approach to agricultural policy to one based on technology and remunerative prices for farmers. The Green Revolution began, and India achieved self-sufficiency. The harsh lesson, however, remains: in international relations, India is better off being skeptical of self-congratulatory labels like “leader of the free world,” “do-gooders,” “progressives,” and so on.]

Liberty: Can Islam Be Liberal? / Where Islam And Reason Meet

[I would like to add that, in the name of advocating liberalism for all, personal liberty is often emphasized over collectivist rights in the majority, while collectivist rights are allowed to take precedence over personal liberty in minority groups, and all religious communities suffer as a result.]

Loyalty: Black-Robed Reactionaries: Has The Supreme Court Been Bad For The American Republic?

[Is it all about Life, Liberty, and the Pursuit of Supreme Court Majority?]

Authority: How Curing Aging Could Help Progress

[In my opinion, the indefinite future that awaits us compels us to contextualize our current activities and lives. What do you think will happen if anti-aging technology advances beyond the limits of our evolutionary environment? Furthermore, according to demographer James Vaupel, medical science has already unintentionally delayed the average person’s aging process by ten years [Vaupel, James W. “Biodemography of human ageing.” Nature 464.7288 (2010): 536-542]. We have 10 extra years of mobility compared to people living in the nineteenth century; 10 extra years without heart disease, stroke, or dementia; and 10 years of subjectively feeling healthy.]

Sanctity: India and the Indian: Hinduism, Caste Act As Unifying Forces In The Country

[Here is my gaze-reversal on caste as a moderate Hindu looking at a complacent American society: If caste is a social division or sorting based on wealth, inherited rank or privilege, or profession, then it exists in almost every nation or culture. Regardless of religious affiliation, there is an undeniable sorting of American society based on the intense matching of people based on wealth, political ideology, and education. These “American castes,” not without racial or ethnic animus, organize people according to education, income, and social class, resulting in more intense sorting along political lines. As a result, Democrats and Republicans are more likely to live in different neighborhoods and marry among themselves, which is reflected in increased polarization in Congress and perpetual governmental gridlock. The intensification of “American castes,” in my opinion, is to blame for much of the political polarization. What is the United States doing about these castes? Don’t tell me that developing more identity-centered political movements will solve it.]

I intend to regularly blog under this heading. To be clear, I refer to regularly using the Liberty taste bud rather than Fairness.

In the Ruins of Public Reason, Part II: The Barbarians at the Gates

Zachary Woodman Culture, Philosophy ,

Note: This is a part of a series on public discourse. View part one here.

How exactly do dialogical illiberals view themselves during a heated discussion without epistemic norms? Dialogical illiberals of all political stripes–from populist conservative culture warriors to sanctimoniously censorious progressives, from screeching parents at public school board meetings to ostensibly liberal democrats, from nationalistic xenophobes to anti-fascist anarchists—view themselves as soldiers under siege in a war using their ideas as the only defensive tool to keep the barbarians at the gates. They view every conversation, every intellectual exchange as a zero-sum game, and their interlocutor is either on their side or the side of the putative barbarians–no in-between. I admit I have fallen into this habit of thinking in years past, but it is an extremely unproductive mindset and contributes to dialogical illiberalism for three main reasons.

First, it is just a way of viewing discourse that, for one, is usually simply untrue. Sometimes, the barbarians literally do not exist. This is usually true when conservatives fear-monger on, say, a liberal pedophile cabal, or progressive elitists trying to turn their kids LGBT, or evil conspiracy of immigrants trying to replace them. It is not just right-wingers who conspiratorially invent barbarians: leftists often imagine there is some deep-money libertarian conspiracy to undermine democracy, or some cabal of rich corporate fat cats to raise prices and oppress the poor. Even if there might be some sophisticated steel-manned sociological story that might make some version of these more than mere conspiracy theories, the problem comes when these imagined “barbarians” are used as an excuse to write off someone they might have fruitful disagreements with as a member of “them.”

Sometimes, in the case of progressives fighting racists or anti-populist liberals and anti-fascist anarchists fighting actual fascist terrorists, the barbarians are a very real, significant threat. However, for one, they often radically overestimate the magnitude of the threat or engage in dangerous forms of concept creep about who counts as a barbarian. Whoever they are talking with is not often part of the barbarians, but they get so in the habit of outgrouping anyone who doesn’t agree with them,they start seeing barbarians everywhere. They then are viciously uncivil towards potential allies or people with whom they have fruitful disagreements that truly are not the sort of “dangerous” disagreements that are helpful to barbarians.

Second, this “activist vs. barbarians” mentality just poisons the well and makes it difficult for these activist gatekeepers to rationally engage with basically anyone who has normative or empirical disagreements with them in good faith. They view themselves as a warrior fighting barbarians rather than more humbly as a curious person trying to find wisdom to cope with this world from wherever they can. It makes them engage in motivated reasoning for why your disagreement makes you on the barbarians’ side or why their view is the true “American” or “liberal” or “radical” view rather than engaging with the substance of the disagreement rationally. It makes them embrace subrational forms of communication that are just toxic, and more interested in signaling their ingroup bona fides to other members of their ingroup than trying to persuade people who might not be in the “outgroup” exactly, but that they irresponsibly paint as being in the outgroup.

It is a very similar toxic social and psychological dynamic to what drives so many sources of illiberal intolerance both large and small–from McCarthyism, to the religious banning of “heresy,” to book bannings, to horrible screeching on social media that makes everyone dumber and unhappier. As Arnold Kling would put it, this “civilization vs. barbarism” language game is a deeply conservative one. But in recent years, few have noticed how even progressives and radical leftists fall into this small-c conservative mode of thinking indefensibly when they consider themselves as activists first and foremost. It is no coincidence that many leftists trapped in the contra barbarian mindset start rationalizing illiberal attitudes more generally.

Third, it makes them rather arrogantly over-estimate their own activist powers in implausible ways. Chances are, the argument you are making, the candidate you are trying to convince me to vote for, or the direct action you are defending isn’t going to be the thing that stops the barbarians. The social world is complicated, and you humbly should be willing to be open to the possibility that your political action might actually backfire and help them. It might help, or it might not, depending on the circumstances. Better to humbly admit your epistemic and practical limitations in changing the world and be open to other perspectives from good-faith interlocutors than just thinking that someone who has a substantive disagreement with you about political action or an idea is either a contemptuous barbarian or a “useful idiot” for the barbarians simply in virtue of your disagreement.

Be realistic, you and I are not heroic activists trying to save our beatific political visions from evil barbarians. Better to think of ourselves as curious individuals trying to learn what we can to cope with the perplexing quandaries of modernity.

A few words — and many quotations – about the influence of Ludwig Wittgenstein on Friedrich Hayek

Federico Sosa Valle Culture, History, Philosophy , , , , ,

In a brief autobiographical note, Friedrich Hayek refers to the influence he had received in his younger years from both his teacher Ernst Mach and his distant cousin Ludwig Wittgenstein:

“But I did, through these connexions, become probably one of the first readers of Tractatus when it appeared in 1922. Since, like most philosophically interested people of our generation I was, like Wittgenstein, much influenced by Ernst Mach, it made a great impression on me.”

F. A. Hayek – Remembering My Cousin, Ludwig Wittgenstein

This can be seen in the analytical rigor present in his essays published in the 1920s and in his book Monetary Theory and the Trade Cycle (Geldtheorie und Konjunkturtheorie) (1929), translated by N. Kaldor and H. M. Croome from the German. However, such influence was not exclusively limited to Hayek’s youth. He was also present in the conception and writing style of The Sensory Order, published in 1952, and Law, Legislation and Liberty, the first volume of which, Rules and Order, was published in 1973.

From my point of view, the following aphorism of the Tractatus Logico-Philosophicus is the one that best allows us to appreciate the reflection of said work in Hayek:

4.12 „Der Satz kann die gesamte Wirklichkeit darstellen, aber er kann nicht das darstellen, was er mit der Wirklichkeit gemein haben muß, um sie darstellen zu können -die logische Form.

Um die logische Form darstellen zu können, mußten wir uns mit dem Satze außerhalb der Logik aufstellen können, das heißt außerhalb der Welt.“

Which could be translated as follows:

4.12 “The proposition can represent the whole of reality, but it cannot represent what it must have in common with reality to be able to represent it – the logical form.

To represent the logical form, we should have to be able to station ourselves with the proposition somewhere outside the logic, i.e.: outside the world.”

This statement about the limits of representation later finds its correlation in the following aphorisms from Hayek’s The Sensory Order, about the limits of knowledge and of the transmission of information:

8.14. While there can thus be nothing in our mind which is not the result of past linkages (even though, perhaps, acquired not by the individual but by the species), the experience that the classification based on the past linkages does not always work, i.e., does not always lead to valid predictions, forces us to revise that classification (6.45-6.48). In the course of this process of reclassification we not only establish new relations between the data given within a fixed framework of reference, i.e., between the elements of given classes: but since the framework consists of the relations determining the classes, we are led to adjust that framework itself.

Note that if there is something that “does not always work,” then we are confronted with the limits to our representation. I think that the said “framework of reference” could play the role of the “logic form” and what Hayek is describing here is the dynamics of a negative feedback process.

…

8.18. The new experiences which are the occasion of, and which enter into, the new classifications or definitions of objects, is necessarily presupposed by anything which we can learn about these objects and cannot be contradicted by anything which we can say about the objects thus defined. There is, therefore, on every level, or in every universe of discourse, a part of our knowledge which, although it is the result of experience, cannot be controlled by experience, because it constitutes the ordering principle of that universe by which we distinguish the different kinds of objects of which it consists and to which our statements refer.

Here, the subject, instead of being outside the world is inside another universe of discourse.

…

8.67. Apart from these practical limits to explanation, – which we may hope continuously to push further back, there also exists, however, an absolute limit to what the human brain can ever accomplish by way of explanation—a limit which is determined by the nature of the instrument of explanation itself, and which is particularly relevant to any attempt to explain particular mental processes.

Nevertheless, there are certain universes of discourse that human beings can never access to -so, they are outside their world.

…

8.69. The proposition which we shall attempt to establish is that any apparatus of classification must possess a structure of a higher degree of complexity than is possessed by the objects which it classifies; and that, therefore, the capacity of any explaining agent must be limited to objects with a structure possessing a degree of complexity lower than its own. If this is correct, it means that no explaining agent can ever explain objects of its own kind, or of its own degree of complexity, and, therefore, that the human brain can never fully explain its own operations. This statement possesses, probably, a high degree of prima facie plausibility. It is, however, of such importance and far-reaching consequences, that we must attempt a stricter proof.

Here, Wittgenstein’s logic form delimits the said structures of a higher degree of complexity which the subject given in a simpler universe of discourse could never trespass.

…

8.81. The impossibility of explaining the functioning of the human brain in sufficient detail to enable us to substitute a description in physical terms for a description in terms of mental qualities, applies thus only in so far as the human brain is itself to be used as the instrument of classification. It would not only not apply to a brain built on the same principle but possessing a higher order of complexity, but, paradoxical as this may sound, it also does not exclude the logical possibility that the knowledge of the principle on which the brain operates might enable us to build a machine fully reproducing the action of the brain and capable of predicting how the brain will act in different circumstances.

8.82. Such a machine, designed by the human mind yet capable of ‘explaining’ what the mind is incapable of explaining without its help, is not a self-contradictory conception in the sense in which the idea of the mind directly explaining its own operations involves a contradiction. The achievement of constructing such a machine would not differ in principle from that of constructing a calculating machine which enables us to solve problems which have not been solved before, and the results of whose operations we cannot, strictly speaking, predict beyond saying that they will be in accord with the principles built into the machine. In both instances our knowledge merely of the principle on which the machine operates will enable us to bring about results of which, before the machine produces them, we know only that they will satisfy certain conditions.

Thus, the knowledge of the principle enables us to build an abstract machine such as language, the price system, or the law, in order to form expectations of future human actions. Since such abstract machine would be built using the knowledge of the principle, it would not be deliberated designed but grown from the experience.

While Ludwig Wittgenstein confronted the subject of knowledge against the limits of the conceptual representation and threw him into the silence and into the realms of mysticism, Friedrich Hayek, on the other hand, chooses to place the said limit instance in an order of discourse more complex than the human mind, which could be the market, the language itself, or the extended society.

For Hayek, the social order works as an abstract machine, which continuously processes information and appears in the event horizon of the subjects to confirm or readjust their own classificatory systems. These classificatory systems that, in an abstract plane, each individual has and that are in a continuous process of readjustment based on the novelties that come from the spontaneous order, are abstract but, at the same time, empirical.

Among such abstract orders are the normative systems and the first volume of Law, Legislation and Liberty is devoted to their study.

‘Learning from experience’, among men no less than among animals, is a process not primarily of reasoning but of the observance, spreading, transmission and development of practices which have prevailed because they were successful-often not because they conferred any recognizable benefit on the acting individual but because they increased the chances of survival of the group to which he belonged. The result of this development will in the first instance not be articulated knowledge but a knowledge which, although it can be described in terms of rules, the individual cannot state in words but is merely able to honour in practice. The mind does not so much make rules as consist of rules of action, a complex of rules that is, which it has not made, but which have come to govern the actions of the individuals because actions in accordance with they have proved more successful than those of competing individuals or groups.”, Chap. 1, Reason and Evolution

Here we find a process of natural selection of rules of conduct, thus, provided not by representational reason, but from experience.

…

The first of these attributes which most rules of conduct originally possessed is that they are observed in action without being known to the acting person in articulated (‘verbalized’ or explicit) form. They will manifest themselves in a regularity of action which can be explicitly described, but this regularity of action is not the result of the acting persons being capable of thus stating them. The second is that such rules come to be observed because in fact they give the group in which they are practised superior strength, and not because this effect is known to those who are guided by then. Although such rules come to be generally accepted because their observation produces certain consequences, they are not observed with the intention of producing those consequences-consequences which the acting person need not know.  Chap. 1, Reason and Evolution

Here we find a concept that Hayek will use extensively along the rest of Law, Legislation and Liberty, the articulated and the unarticulated. In the terms previously used in The Sensory Order, the unarticulated is what belongs to another universe of discourse, of a more complex level.

…

The process of a gradual articulation in words of what had long been an established practice must have been a slow and complex once the first fumbling attempts to express in words what most obeyed in practice would usually not succeed in expressing only, or exhausting all of, what the individuals did in fact take into account in the determination of their actions. The unarticulated rules will therefore usually contain both more and less than what the verbal formula succeeds in expressing. On the other hand, articulation will often become necessary because the ‘intuitive’ knowledge may not give a clear answer to a particular question. The process of articulation will thus sometimes in effect, though not in intention, produce new rules. But the articulated rules will thereby not wholly replace the unarticulated ones, but will operate, and be intelligible, only within a framework of yet unarticulated rules. Chap. IV, The Changing Concept of Law

Thus, the process of articulation of new rules is not a labor of creation of new ones, but of discovering them through the limits of the universe of discourse of the individuals.

…

The contention that a law based on precedent is more rather than less abstract than one expressed in verbal rules is so contrary to a view widely held, perhaps more among continental than among Anglo-Saxon lawyers, that it needs fuller justification. The central point can probably not be better expressed than in a famous statement by the great eighteenth-century judge Lord Mansfield, who stressed that the common law ‘does not consist of particular cases, but of general principles, which are illustrated and explained by those cases’. What this means is that it is part of the technique of the common law judge that from the precedents which guide him he must be able to derive rules of universal significance which can be applied to new cases.

The chief concern of a common law judge must be the expectations which the parties in a transaction would have reasonably formed on the basis of the general practices that the ongoing order of actions rests on. In deciding what expectations were reasonable in this sense he can take account only of such practices (customs or rules) as in fact could determine the expectations of the parties and such facts as may be presumed to have been known to them.

And these parties would have been able to form common expectations, in a situation which in some respects must have been unique, only because they interpreted the situation in terms of what was thought to be appropriate conduct and which need not have been known to them in the form of an articulated rule. Chap. IV, The Changing Concept of Law

Here, “rules of universal significance” should be understood as knowledge of the principle. The general practices denote that the said order, despite of being abstract, is, nevertheless, empirical. The common expectations are readjusted through a process of articulation of rules which redefine the universe of discourse of the individuals of a given community or society.

This conception of rules allows us to a better comprehension of the notion of natural rights, since they are empirical, despite their enforcement:

Whether we ought to call ‘law’ the kind of rules that in these groups may be effectively enforced by opinion and by the exclusion from the group of those who break them, is a matter of terminology and therefore of convenience. For our present purposes we are interested in any rules which are honoured in action and not only in rules enforced by an organization created for that purpose.

It is the factual observance of the rules which is the condition for the formation of an order of actions; whether they need to be enforced or how they are enforced is of secondary interest. Factual observance of some rules no doubt preceded any deliberate enforcement. The reasons why the rules arose must therefore not be confused with the reasons which made it necessary to enforce them. Chapter V. Nomos: The Law of Liberty.

Finally, despite being the enforcement of natural rights a matter which depends upon a political decision, the authority is a subsystem inside of the same level of discourse of the individuals of the same political order. Thus, the political authority could not trespass the limits of the knowledge of the said empirical order without consequences concerning its stability. It should deal with the rules which act as the framework of individual interaction using just knowledge of the principles, articulated in general and abstract rules. As we succinctly have seen, the youth influence of Ludwig Wittgenstein on Friedrich Hayek endured until the last books of the latter. I dare not say that the Tractatus encloses the clues of interpretation of the most intricated works of F. A. Hayek, but its reader will find some common ground upon which to build a more prolific interpretation of his legacy.

A Liberal View on Trade and Development

Edwin van de Haar Current Events, Economics, Liberty, Philosophy, Politics , , , , , ,

This is the pre-edited text of an article that will shortly be published in World Commerce Review (https://www.worldcommercereview.com)

The liberal tradition in political thought is by no means unified. The original ideas developed in the (Scottish) Enlightenment, most importantly by David Hume and Adam Smith, have been modified extensively. This has led to different definitions and practical applications of individual freedom, the core idea of liberalism, but also of most other ideas associated with the liberal tradition.[i] Regardless this proliferation, the wide liberal support for free trade and globalization as a means to alleviate poverty and foster human development more broadly has been rather constant, although the ideal of trade free from all government interference has never been within reach. With the World Trade Organization at shambles, the increase of bilateral and regional trade treaties which often hamper free trade more than fostering it, and a general anti-liberal sentiment across the globe, the liberal ideals may not be a very popular at present. However, this does not say anything about their empirical or moral validity. Liberal recipes to fight poverty and to foster development still work and need support, both through domestic and international policies. 

Global inequality

In international relations inequality is the norm, in many different fields. Often this is not problematic in liberal eyes, as long as individuals get the chance to use their talents in the way they see fit. Grave hindrances, for example caused by a lack of basic needs and insufficient protection of classical human rights should be removed, as they often make individual flourishing impossible.

In contrast to what is often thought, liberals are convinced it is possible for all countries to implement policies that foresee in these basic liberal preconditions. Most often, bad circumstances don’t just happen to countries, nor should they be seen as the inevitable result of regrettable historical events such as slavery, imperialism, let alone the alleged detrimental effects of capitalism. As Lomasky and Téson show, the fate of the inhabitants of developing countries lies not in the hand of failing rich countries, but are mainly due to poor domestic policies, lack of, or failing, domestic institutions and a no respect for classical human rights, such as freedom of opinion, right to property, or a free press.[ii] 

Evidence

Of course, this is a broad topic, which can be approached from many angles. In this short piece, the focus is on the above-mentioned classical liberal rights and measures, but also includes broader topics such as governance and the development of human capital, in Sub-Sahara Africa. This is made visible through an -admittedly- rough measure: the outcomes and ranking of countries in a number of well-known and internationally respected indexes. These indexes compare countries on domestic policies.

A presentation of this kind has to be treated with caution. Methodologically, the indexes are different and a comparison is not always easy or fully warranted. Definitions and operationalizations differ, just like the way results are aggregated into (final) scores.

Nevertheless, these indexes provide a useful indication of good policies from a liberal view. Especially for the countries of Sub-Sahara Africa, which mostly contain low income countries. Contrary to some assumptions that is no barrier for some governments to implement different policies. Being a low income country does not automatically lead to bad policies!

Indexes

Given space limitations, the five indexes are introduced by a broad outline. Please use the references for further information. For practical purposes 5 indexes are used, published in 2018 and 2019.     

  • Since the 1970s, Freedom House publishes the Freedom in the World Index, which determines how individual rights and liberties are applied and protected, on the basis of 25 indicators. It groups countries in ‘free’, ‘partly free’ and ‘not free’. The top 5 free countries in Sub-Saharan Africa are Ghana, Botswana, Namibia, Benin and Senegal.[iii]
  • The International Property Rights Index is published by the American Property Rights Alliance (PRI), expressing the degree of protection of property rights, both material and intellectual, per country. The PRI emphasizes that property rights are also human rights, and that they are essential for economic and social development. In 2019 Rwanda (42nd), South-Africa, Botswana, Ghana, Burkina Faso and Tanzania (73th) were the highest ranking Sub-Saharan countries.[iv]
  • Transparency International publishes The Corruption Perception Index, ranking countries to the degree there is corruption and fight corruption, surveyed among business people and experts. Corruption undermines the trust people have in the political and social-economic systems within societies. In the ranking, Sub-Saharan Africa is perceived as the region with the most corruption, still the countries that score best are Seychelles, Botswana, Cape Verde, Rwanda and Namibia.[v]
  • The Ibrahim Index measures the governance of African countries, defined as ‘the provision of political, social and economic public goods and services that every citizen has the right to expect from their government, and that a government has the responsibility to deliver to its citizens’. In the overall governance category, we find Namibia, Botswana, Ghana, South Africa and Rwanda.[vi] 
  • The World Bank publishes the Human Capital Index, which focuses on different indicators, such as infant mortality, life expectancy, and the chances on education for girls and boys. Countries that score best are: Zimbabwe, Gambia, Ghana, Namibia, Botswana and Senegal.[vii]          

This leads to the following summary:

IndexTop
Freedom in the WorldGhana, Botswana, Namibia, Benin, Senegal
International Property RightsRwanda, Zuid-Afrika, Botswana, Ghana, Burkina Faso, Tanzania
Transparency InternationalSeychellen, Botswana, Kaapverdië, Rwanda, Namibië
IbrahimNamibië, Botswana, Ghana, Zuid-Afrika, Rwanda
Human CapitalZimbabwe, Gambia, Ghana, Namibië, Botswana en Senegal

Especially Botswana, Namibia and Ghana succeed in implementing relative liberal policies, with South Africa, Senegal and Rwanda following their lead. It must be noted that a position on an index is always relative. None of the Sub-Saharan countries are in the absolute top, although some score surprisingly high. Also, this is not to claim these are countries without problems, or that they are liberal countries, let alone liberal-democratic ones. Their absolute rankings do not warrant such a suggestion. It does indicate that being a low-income country does not need to be a barrier to implement relatively liberal policies, which provide individual citizens more (social-economic) opportunities than is the case in other Sub-Saharan countries. Hence, the liberal emphasis on domestic policies is fully warranted.

Liberal international policies

Liberals believe domestic policy is most important to promote development. Still, the perennial practice in international relations also is: what can other countries do in support of this? The short liberal answer is one of restraint: stay clear, do not (militarily) interfere, be modest about the possible success of ‘helping’, while ensuring the best global economic conditions.

The latter is done through ensuring free trade, also the foreign economic policy liberals are most strongly associated with. The popularity of free trade has known its high and low tidings, ever since the Ancients.[viii] Therefore the current low esteem of free trade is nothing new. There have always been people who distrust trade, for economic, political or moral reasons.[ix] On the other hand, there are also too many liberals who have claimed way too much on behalf of free trade, especially its peace-enhancing effects, which are erroneous.[x] The lack of support for trade still deserves to be fought. Friedrich Hayek and Milton Friedman, to name two great thinkers, have shown the importance of continuing to argue against the topical grain.

The evidence continually shows the superior results of even relatively free trade, which has real effects for the improvement of the life of (poor) people. Countries that are committed to free trade become richer and are able to create more possibilities for (economic and human) development. Columbia University’s Arvind Panagariya is just one of the many who found clear evidence for that. In his book Free Trade and Prosperity he shows that developing countries have enormously profited from the recent wave of increasingly free world trade.[xi] The World Bank is even clearer:

Trade is an engine of growth that creates better jobs, reduces poverty, and increases economic opportunity. Recent research shows that trade liberalization increases economic growth by an average by 1.0 to 1.5 percentage points, resulting in 10 to 20 percent higher income after a decade. Trade has increased incomes by 24 percent globally since 1990, and 50 percent for the poorest 40 percent of the population. As a result, since 1990, over one billion people have moved out of poverty because of economic growth underpinned by better trade practices.[xii]

Yet, in contrast to Richard Cobden’s famous argument, it must be acknowledged free trade is no panacea. Domestic policies are needed to see that trade benefits find their way to the wider population. Also, when some groups are out-competed at the world market, they (temporarily) need domestic support. Still, the less than perfect trade arrangements of the last decades have had enormous positive effects on development.

Foreign Aid

By way of a closing remark, in contrast to trade, governmental development aid is not supported by liberals. It still largely is, as Lord Peter Bauer had it, ‘bringing money from the poor in the rich countries, to the rich in the poor countries’. The research of his modern day successors, most notably William Easterly and Dambisa Moyo, largely confirm this.[xiii] The structural effects of governmental foreign aid are minimal and often detrimental, resulting in ‘aid addiction’ in the receiving countries. Liberal have the same doubts about the structural effects of aid by private donors such as NGO’s (positive local effects are possible, for example in health care or education). Yet as long as these private donors donot use public money, this remains a case between donor and recipient. However, in liberal eyes it fails as an international policy to foster development.

Conclusion

Inequality and poverty remain a global reality, which can have detrimental effects to the development of individuals. Liberals think this should change, but emphasize this is mainly done through improved domestic policy in low-income countries based on proven liberal principles. This is not just theory, it is a real possibility, as the some of the countries in Sub-Sahara Africa show. The best way the world can assist in this process is to provide truly free trade, while abandoning governmental foreign aid. Global development is too important to not make the effort.  

Dr Edwin van de Haar is an independent scholar specialized in liberal international political theory and political economy (see www.edwinvandehaar.com). This article is based on a chapter published in a Dutch volume entitled Difference There Must Be. Liberal Views on Inequality, published by the liberal think tank Prof. Mr. B.M. Telders Foundation (www.teldersstichting.nl) 

[i] Edwin R. Van de Haar, Degrees of Freedom. Liberal Political Philosophy and Ideology (New York and London: Routledge, 2015).

[ii] Loren E. Lomasky and Fernando R. Tesón, Justice at a Distance. Extending Freedom Globally (Cambridge: Cambridge University Press, 2015).

[iii] Freedom House, Freedom in the World 2019 (Washington DC).

[iv] Property Rights Alliance, Property Rights Index 2019 (Washington DC).

[v] Transparency International, Corruptions Perceptions Index 2019 (Berlin).

[vi] Mo Ibrahim Foundation. 2018 Ibrahim Index of African Governance (London and Dakar).

[vii] World Bank, Human Capital Index 2018 (Washington DC).

[viii] Ronald Findlay and Kevin O’Rourke, Power and Plenty. Trade, War, and the World Economy in the Second Millennium (Princeton and Oxford: Princeton University Press, 2007).

[ix] Douglas A. Irwin, Against the Tide. An Intellectual History of Free Trade (Princeton: Princeton University Press, 1996); Jagdish Bhagwati, In Defense of Globalization (Oxford & New York: Oxford University Press, 2004); Razeen Sally, Trade Policy, New Century. The Wto, Ftas and Asia Rising (London: Institute of Economic Affairs, 2008).

[x] Edwin R. Van de Haar, “The Liberal Divide over Trade, War and Peace,” International Relations 24, no. 2 (2010); “Free Trade Does Not Foster Peace,” Economic Affairs 40, no. 2 (2020).

[xi] Arvind Panagariya, Free Trade and Prosperity: How Openness Helps the Developing Countries Grow Richer and Combat Poverty (Oxford: Oxford University Press, 2019).

[xii] www.worldbank.org/en/topic/trade/overview#1 (accessed 19 November 2021)

Do we have the right to be wrong?

Eliana Santanatoglia Current Events, Philosophy , , , , ,

The pandemic, and the consequent decisions taken by our and other governments, have confronted us with the question of the extent of our autonomy. Although we are aware of the exceptional nature of the situation, the matter about the right that assists each individual to make decisions about their own life returns more strongly.

In this sense, we can wonder: How do we make decisions? Are we rational beings? Are thus our decision-making processes rational or we tend to act based on emotions, instincts, or heuristics? Even if we think in terms of choices rather than of actions, do we have enough evidence to think that we rationally choose between options? And if so, can we find the optimal solutions for our problems? Can we evaluate the optimality of our decisions?

The rationality of our actions and our decision-making processes have been widely discussed, not only in the field of economics but also in the legal, political, and sociological realms. Some authors have proposed that our decisions are not based on perfect information or precise though-processes, as Friedrich Hayek, who enlightened us about dispersed knowledge in society or Herbert Simon , who showed us how limited rationality works in real decision-making situations.

More recently, various theories such as behavioral economics and several experiments conducted by scholars from different disciplines, such as those conducted by Carl Sunstein, have showed that individuals act influenced by cognitive limitations and emotional biases. For example, some of these studies have shown how, influenced by these biases, we fail in our perception of the risk, miscalculating the odds we have of suffering certain diseases or how our choices are influenced by the way the relevant information is presented (framing). Thus, it has long been revealed that human actions and choices are not the result of a perfectly rational thought-process, and such discoveries were very useful in predicting certain patterns of behavior.

Personally, I have always found these theories fascinating, showing us that our mind does not work as the precise instrument that other visions have proposed. These “limitations” of our rationality and cognitive capacity have always led me to conclude that we must assume a humble position regarding what we can and cannot do in terms of public policies or the “construction” of social and political reality. Even this humility should be applied to scientific knowledge that manifests itself in constant change and revision. What is worrying is that, recently, this type of analysis has made a jump from the descriptive realm to the normative one, obtaining prescriptive conclusions from these experiments.

On the other hand, nowadays it is common to find that, from different perspectives and schools, subjective rights of all kinds are multiplied. It seems that individuals enjoy -at least theoretically- not only all the rights constitutionally recognized, the rights established by international human rights treatises and all the tacit or unwritten rights but also the collective rights (adding several generations). It is discussed from the right to elect and to be elected (i.e., lowering the age of vote) to the right to enjoy a healthy environment. In addition, from diverse political agendas, it is proposed the widening of all rights enjoyed by people, groups and even animals. We could discuss at length about these rights and obligations involving third parties – not only to respect them but also, in many cases, to take responsibility for the effective enjoyment of them.

But it would seem that, among all these rights that we enjoy or intend to enjoy, the right to be wrong does not appear. Everything is permitted (again, in theory) while individuals live according to the standards or goals to accepted by the community and the State at a given time. From different perspectives we are constantly offered advice and suggestions to achieve the ideal that is presented almost as indisputable: a long, healthy, and calm life (not without some ingredient of novelty or adventure). Not only from the philosophical and theological views -that indicate that human life seems to have happiness, virtue, personal flourishing, or any other transcendent purpose as its goal- but also from more scientific perspectives that provide us with details about what our limitations are in making the right decisions about how to lead a full life. They all seem to agree in proposing a “perfectionist” ideal of human life.

However, when combined these two tendencies of thought -that is, on the one hand, the perfectionist ideal of human life and, secondly, a clear vision about human limitations for making good decisions or planning courses of action, it appears this idea that it is necessary to “underpin”, help or direct the decisions of individuals with the intention to help them that they achieve such ideal ends.

Just to illustrate this point outside the case of the pandemic, we note that all political views coincide in “guiding” citizens when it comes to eating and healthy habits. In this regard, if directing citizens consumption is concerned, much of the political range (conservatism, social democracy, and even the left) seem to agree in wanting to provide healthy standards that everyone should enjoy. This is reflected in a variety of decisions made by governments from one “ideal individual” – which range from prohibiting table salt in restaurants, forcing stores to not sell alcohol at a certain time of the night (and not only limiting the sale to adults as might be expected), forcing food producers or distributors to include a lot of information about its components in packaging, etc. The question does not end here: smoking tobacco, for example, has been almost completely banned everywhere (and not only in closed public spaces but also in open spaces and even in many buildings or premises for exclusive private use).

Faced with this reality, we ask ourselves the question: Do we have the right or not to decide about our lives (our body, our health, etc.)? Can adults without serious cognitive problems -beyond those biases named above that we all “suffered”- with their legitimate autonomy, freedom, and responsibility and, if you like, access to public information about the possible consequences of their actions, choose to assume risks? Do them have the right to put salt to their food, although there are numerous studies that show a correlation between salt intake and high blood pressure? Don’t all those who choose to paraglide or drive a car on a high-speed avenue also take risks? Why are some elections forbidden or more “observed” than others?

So, from this perspective that combines perfectionism and observation of the cognitive limitations of individuals: Does this lead us directly to conclude that our decisions should be replaced or at least “influenced” or “improved” – as suggested by the nudge theory – by the decision of a public official or an expert scientist? Do we let a nutritionist tell us the ideal diet based on recent generic scientific studies? Do we allow an official or civil servant to indicate what activity / sport / food / drink / medical treatment / insurance should we carry out / practice / consume / submit to / hire considering the general statistics of the population for my age / sex / social condition? Would we allow this civil servant to “suggest” us the way of interacting with other individuals or habits to adopt?

To answer this question, it could help us to bring here the conceptual distinction proposed by Dr. Martín Diego Farrell in his essay on “Nino, democracy and utilitarianism”. There Farrell proposes two alternatives to justify democracy: The first one holds that all adults, free of physical or mental impairments, are the best judges of their interests and, in its turn, the second one points out that the same adults would be the best judges of their own preferences.

Farrell argues that the former is indefensible by the number of counterexamples we can find in which an adult seems not to know his best objective interest (perhaps knowable by an expert without his intervention) and, at the same time, other examples that show adults opting freely against their own interest. Instead, he openly defends the second argument: adults are the best experts and judges of their own (subjective) preferences. Although we will discuss in the next few paragraphs the assertion about the possibility that expert may have the objective knowledge of another person´s best interest, we will concede the point for now and agree with Farrell that each adult is the best judge of their own preferences.

This is how we could now answer the questions we posed before. I think that most of us would intuitively reject the proposal of experts/officials telling us what food to eat, what sports to practice, what form of social relationships to prefer and so. Of course, with the exceptions of exceptional situations of crisis in which we consciously seek help from experts in each subject, so that they can provide us with, in this case, personalized advice, considering our specific circumstances, beliefs and wishes. On the other hand, the pandemic has left us a clear image of the fallible, provisional, and changing nature of scientific knowledge.

I believe that the perfectionist and scientistic vision of individual life is based on a conception that responds and falls into the following errors:

a) Confusing correlation with causality: Studies on the influence of certain habit or the consumption of certain food or drink on individuals´ health show correlations and no causal links. That is, it cannot be reliably proven that this or that habit produces such a consequence but only that, given two variables, the values ​​of one vary systematically with the homonymous values ​​of the other. This coincidence may respond to an external cause to both (which produces or “causes ” both variables) or by multiple causes that are difficult to unravel at this level. This is obvious to any scientist or expert in each area, but it is forgotten when it is discussed in the public sphere, where not practicing sports “causes” obesity, salt “causes” high pressure and not wearing a face mask seems to “causes” the contagion of the coronavirus.

b) Studies always work with populations, that is, with a sample or group of individuals of a certain sex, age, physical characteristics, etc. that could have a probability of, for example, suffering certain disease. Let´s say- for the purpose of illustration- that certain group of individuals -men over 65 years have a 60% chance of having a heart attack. But this “class” or group probability does not tell us anything about each particular individual being part or not of that 60%. What if a public policy of restricting salt is being imposed on a man with low blood pressure and a very low probability of having a heart attack? Can’t this individual make the decision to consume more salt than recommended by public bodies or professional chambers at his own risk? Let´s remember all the atrocious examples that were experienced during the pandemic about relatives who have not been able to accompany terminally ill patients, penalties even of jail for people who circulated at prohibited hours and contradictory recommendations that prevented individuals from being able, with the public information available, to decide about their possibilities to work, circulate, see their relatives, etc. under threat of sanction.

c) Scientific studies and their practical conclusions are constantly changing. We have lived through this intensely in the last 20months or more of the pandemic, where what at first seemed irrefutable, months later seems shocking. Just as an example, the practically absolute prohibition -in countries as Argentina- for children to walk in the streets the first three months of quarantine. These major shifts in scientific criteria in one area can be observed (perhaps without the speed we see during the pandemic) in many other realms. Continuing with the nutritional example, we can say that the paradigms in this area seem to change drastically and quickly. Only in the last 20 or 30 years has it gone from suggesting that alcohol was bad to recommending a glass of wine a day to prevent heart disease; to try to eliminate meat in all its forms to currently attempt to eliminate all carbohydrates and sugars and to consume only proteins and fats and many more.

But, beyond all these characteristics of scientific knowledge that inform “perfectionist” public policies, we can also raise an even more fundamental point: Even if we could know, reliably and with certainty, -what science would never guarantee- how a certain habit can affect our health or what would happen if we do not met with the ideal, don´t we have any right to choose how to live our lives? When did we renounce to that right in favor of the experts of a group of professional councils or of the civil servants of a Ministry of Health? Should we forbid the individual who wants to dedicate his life to climbing the Himalayas to carry out such an endeavor because of the high risks of his life plan? And the one who practices hang gliding? Don’t these individuals know their own preferences better than anyone else?

And here are some more points added from a higher level of observation:

a) Levels of Abstraction: Why might we think that individuals choosing between options are “biased” and when individuals working as government agents in offices creating “nudges” are not biased as other individuals in their daily life? Individuals who work in the civil service or have some degree of professional or scientific specialty, don´t they suffer from the same biases and limitations described in the studies above mentioned, typical of every human being? For example, don´t they choose between theoretical or experimental options for those results presented in a more pleasant way (problem of the architecture of the election) or that confirmed more strongly their hypotheses (confirmation fallacy)?

b) Scientific theories are fallible. Also, some of the results of these experiments may turn out to be incorrect or incomplete in the future. Do we have the right to influence individual decisions based on studies that are, like any scientific theory or experiment, fallible and provisional? After all, isn’t it more worthy for the individual to pay the costs of his bad decision rather than paying the costs of a government agent’s bad decision?

c) Finally, a more philosophical point: How does chance or destiny influence on our daily decisions? Is there a case where the options are presented in a “neutral distribution” way? Let us suppose the case of an individual’s decision regarding the acquisition of medical or retirement insurances (issues that have also been very relevant during the pandemic). The individual must choose between “default options”. The options could be presented to consumers randomly or in a way decided by offerors – but without any central agent deciding-. In the latter case, the options are established by the offerors because they are trying to influence commercially on consumers´ choice and, therefore, it could be said that there is no neutral distribution even though it is not a “nudge” of the public sphere. But, on the other hand, there is a suggestion made by government agents, then the ” nudge ” is intervening in the market, albeit subtly. That is to say that private influence is being replaced by governmental influence, bringing an artificial “architecture” of the choice that did not exist before and, therefore, eliminating randomness. Here we are again facing “levels of abstraction” problem: Don´t “experts” -who propose the ” nudge”- have the same limitations as individuals that interact?

Recapitulating, during this long process we lived the last year and a half since pandemic, quarantine and all the -health, economic, political -measures taken by governments, the question about the scope of our autonomy reemerged. Standing on a platform where philosophical perfectionism and a misunderstood scientism are combined, it has gone from trying to discover patterns of behavior to prescribing ideal results and to opening the door to all kinds of measures, which establish from our right to move freely, if we can work, if we can trade, etc. And what has been more unusual, without explicit limits on the duration of such measures. I think this responds to a trend of thought that had started much earlier. But shouldn’t we take back the reins of our lives as adults? Don’t we know our interests better -or, at least, our preferences- by ourselves? If others believe they know our interests better than us, shouldn´t each of us, considering our preferences, be the best judges of how much risk we want to take? We could think that governments and expert organizations can, in good faith, publish all the information and studies produced and, likewise, could suggest, recommend, and even collaborate to follow the suggestions; but not to compel, prohibit and sanction those who are “wrong” at their own risk.

Of course, this implies taking responsibility for our actions and not demanding or claiming the governments to decide for us or to be accountable for our mistakes. If we decide to climb the Himalayas, we will have to train for many years, buy the appropriate equipment, take out the appropriate insurance, face possible injuries and if something goes wrong, even face death. Ultimately, in each election our desires, our beliefs, our projects, and our philosophical perspectives – that provides- meaning to our lives- come into play. So, we cannot ask the government or the experts to prohibit something from us (because it is risky) or, what is worse, to prohibit it from all citizens, so as not to face the dangers or costs of our eventual mistakes.

We find ourselves – by our decision – facing the paradox that we, given our limitations, cannot make personal and everyday decisions about our work, food or habits, but we can choose legitimately officials, experts or governmental agents that are going to lead us on such tasks. I propose, instead, to reassume our adulthood and start exercising our right to bring the life plan whose consequences we can assume. This, instead of taking it as natural that others decide for us in exchange of unloading on them the responsibility of our own life. Only then we will be able to claim, legitimately, the right to take our own decisions at the risk of being wrong.

Monday Links, sticks and two (or maybe three) smoking sentences

Michalis Trepas Comments, History, Links, Philosophy , , , , , , , , , ,

Gangsters vs. Nazis (Tablet)

How the Jewish mob fought American admirers of the Third Reich. An excerpt:

Judd Teller, a reporter for a New York Jewish daily, relates how he met one day with “several men who said they were from ‘Murder, Incorporated’ and wanted a list of ‘Nazi bastards who should be rubbed out.’” Teller took the request to Jewish communal leaders. They told Teller that if the plan would be put in motion, “the police would be informed promptly.” Teller relayed this warning to his Murder, Inc. contact. Upon hearing this, the mobster angrily replied, “Tell them to keep their shirts on. OK, we won’t ice [murder] the bodies; only marinate them.” According to Teller, this is exactly what they did. He said the attacks by the Jewish mobsters was sufficient “marination” to drastically reduce attendance at Nazi Bund meetings, and discouraged Bundists “from appearing in uniform singly in the streets.”

The Inimitable Orwell (Commonweal)

On the Politics and the English Language essay. I try to stick to the six rules, but I fear I am not totally “outright barbarous”-proof. Another list with writing rules – a more light-hearted one – comes from Umberto Eco, the noted Italian scholar:

Umberto Eco’s 36 Rules for Writing Well (Openculture)

Speaking of proper phrasing, here is a passage from Lysander Spooner (Thomas L. Knapp posted it in the comments section of a NOL piece by Jacques Delacroix):

[W]hether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.

Now, I may have found the second prospective opening for my public policy course, should I ever offer one (the absurd part is that I lack almost everything else to supply it, demand included). It is pithy, sharp and, importantly, timeless. The alternative one-liner I would possibly pen day one at the imaginary class:

Property imposes obligations. Its use by its owner shall at the same time serve the public good.

Weimar Constitution (1919), art. 153(c)

While not as punchy as Spooner’s aphorism, it has qualities and can raise eyebrows. Both phrases are metal. Independent of context, they have more or less exactly what it takes to pick and stick. Perhaps both of them should set the opening, leaving the audience free to choose the way forward.

Back to Spooner. Another prominent figure (of American individualist tradition this time) I had not heard of till this day.

Lysander Spooner (Online Library of Liberty). The particular passage comes from his No Treason. No. VI. The Constitution of No Authority (1870).

The Wings of Competition in Things Daily – Source

I took note that he challenged the government monopoly in mail services (a field with quasi-military structure, typically used as a matrix to consolidate state bureaucracy/ power, btw) with his American Letter Mail Company, on ethical and economic grounds. The state finally forced him out of business in 1851, though competition temporarily drove fees down.

(If you care about post stamps – I don’t – USPS to issue Ursula K. Le Guin stamp this month (Book Riot). I enjoyed Le Guin’s Earthsea and plan to read The Dispossessed, a veiled study of social systems I hear, before summer end)

If anything, Spooner seems to have shared the fiery convictions and language of his contemporaries at the First International. That was a time of memorable lines, obviously. This easily comes to mind:

The history of all hitherto existing society is the history of class struggles.

The Communist Manifesto (1848)

They also sported some serious beards. Those of Spooner and Marx are respectable, but I would award James Guillaume’s bonus points for the extra menacing vibe.

Caging the leaders of the future

Kevin Kallmes Law, Liberty, Philosophy , , ,

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.

American Classical Liberals Suck

Edwin van de Haar Comments, Culture, Current Events, Liberty, Philosophy , , , , , , ,

This week Kevin Vallier published a new entry on neoliberalism in the Stanford Encyclopedia of Philosophy: Neoliberalism (Stanford Encyclopedia of Philosophy). It is a well-written, well-researched piece. However, it is also symbolic for the greatest deficiency of American classical liberals: they are unable or unwilling to defend the name, or label if you like, of the ideas they are associated with. Given the influence of American academia and thinks tanks on the rest of the world this is especially important. It has happened before, and it is happening now. It sucks.

This is how Vallier starts his entry:

“Though not all scholars agree on the meaning of the term, “neoliberalism” is now generally thought to label the philosophical view that a society’s political and economic institutions should be robustly liberal and capitalist, but supplemented by a constitutionally limited democracy and a modest welfare state. Recent work on neoliberalism, thus understood, shows this to be a coherent and distinctive political philosophy. This entry explicates neoliberalism by examining the political concepts, principles, and policies shared by F. A. Hayek, Milton Friedman, and James Buchanan, all of whom play leading roles in the new historical research on neoliberalism, and all of whom wrote in political philosophy as well as political economy. Identifying common themes in their work provides an illuminating picture of neoliberalism as a coherent political doctrine.”

The problem is in the words: ‘“neoliberalism” is now generally thought…’’.  Neoliberalism is a hotly debated term, there is certainly no consensus on its meaning. As Oliver Hartwich has emphasized in Neoliberalism, the genesis of a political swearword, it is still most often used as a swearword by the left for all that they think is wrong with capitalism, (classical) liberalism, (more or less) liberal policies by IMF, WTO and World Bank, et cetera. These left wingers are also found in academia, policy and in media circles, which has led to its routine use. However, it is not true that the work of Hayek, Friedman and Buchanan is generally thought to be covered by a neoliberal label. Only those who disagree with it call them neoliberals. It is painful to see that the ideas of these three Nobel Prize winners are now used to explain neoliberalism in a leading online source. They self-identified as classical liberals and just because opponents of their views use a different label is no reason to comply with that malicious practice.  

The worse thing is, it has happened before, also commencing in the US. Fairly recently, classical liberals began to use the label libertarian, as the Cato Institute has been promoting, for example on their (very useful) website  Libertarianism.org, or in David Boaz’ The Libertarian Mind.  Jason Brennan’s Libertarianism, what everyone needs to know is another example. The issue here is that the three aforementioned classical liberals, and others, are now thrown onto the same heap as Rothbard and Rand, to name a few rather different thinkers.

Decades earlier, Hayek and others noted with regret that the Americans were unable to defend the original meaning of the word liberal, with the result that a liberal in the American sense is now what people in other parts of the world call a social-democrat. It is also the reason Hayek and other started to use the name classical liberal.  

The result of all this changing of names is confusion and vulnerability. Nobody knows what label belongs to which ideas, which gives rise to a petty industry on liberal labels, yet without any clarity in the end. It also provides ample opportunity for opponents to negatively attack ideas loosely associated with the (classical) liberal movement, which results in a negative image, which also make liberal ideas less attractive for outsiders. The lack of clarity also makes vulnerable for any kind of criticism. Actually, embracing the swearword other use for you, by offering the ideas of your greatest and brightest thinkers, is a shameful act at least.

American classical liberals should stay firm and defend their ideas under the proper labels. There is no reason for change (see my Degrees of Freedom: Liberal Political Philosophy and Ideology), there is only a need for explanation and defense. Giving up clear and proper labels plainly sucks.         

Transaction Costs are Injustice

Kevin Kallmes Books, Economics, History, Law, Liberty, Philosophy, Politics , , , , , , ,

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.

Monday’s hints and suggestions, rumors and hunches

Michalis Trepas Current Events, Links, Philosophy , , , , , , ,

Or, some Monday links – on thinkers, their devices and “ad hoc” cities, above/ below the sea surface

Back in February, Nick Cowen here at NOL pointed the 100th anniversary of John Rawls’ birth. At the time I somehow caught that this year also marks 50 years since his Theory of Justice book publication (a rather banal discovery it seems now, but still). The “veil of ignorance” was a strong introduction to the world of ideas and one of the few things to make it past my undergraduate studies.

The 1st American edition – source

Beyond those lectures (early 00s), I have yet to read the book. I suspect that it could belong to the “books everyone would like to have read, but almost no one actually reads” list, along with that Beveridge Report (this quip about the Report I read somewhere I cannot remember). Anyway, here be a fresh tribute proper:

On the Legacy of A Theory of Justice (Law & Liberty, there are responses to the main essay, too)

As far as round anniversaries involving nice thought experiments go, I would also note that Judith Jarvis Thomson’s “violinist” and Herbert A. Simon’s “alien telescope” papers were published in 1971 and 1991, respectively. The first is a defense of the right to abortion, while the second is a tool to discern social structures (guess what, I have not read the “violinist” paper either. It seems interesting and timely enough – the top courts in US and Germany decided on abortion in 1973/75 – but I firstly found out about it, and some relevant criticisms, only last year. Simon, the Nobel Memorial Prize in Economic Sciences laureate 1978, provided insights across a few fields over the years):

The trolley problem problem (Aeon)

Organizations and Markets (Journal of Economic Perspectives)

Getting to more recent staff, Brandon the other day expressed his doubts about the new charter city project in Honduras (Próspera). Find below a comprehensive read on the matter:

Prospectus On Próspera (Astal Codex Ten)

Now, as a pc gamer of yore, I have been expecting more nods to the underwater city of Rapture from the Bioshock game series, maybe. Rapture was a utopia free of state intervention, purportedly founded top-down on individualistic ideals in 1946, that failed. No, not quite libertarian ideals, more of a wildly objectivist kind, with a paternalistic edge. The adherence to laissez-faire, but not to laissez-passer (the founder forbid any relations with the rest of the world), brought smuggling, inequality and eventually the downfall of the city.

Not Rapture, but close enough style-wise (Moscow State University main building) – source: my own archive

At least this is how I understand it (right, I have not played any of these games. Survival/ horror FPS, nope. I do appreciate the games’ grandeur for 40s-50s ideas and architecture, though). As for any relevance to the Próspera project – come to think of it again – I admit the whole comparison is tempting, but way overblown, ok. Próspera is a public/ private law creature, envisaged in the constitution of a sovereign state. I desist.

Why Bioshock still has, and will always have, something to say (Ars Technica)

Ideology in Bioshock: A Critical Analysis (Press Start)

CTRL + C: How can ideas find freedom in a digital world?

Kevin Kallmes Books, Economics, Law, Liberty, Philosophy , , , , ,

I propose a debate! The place: The NOL podcast. The people: anyone with fresh takes on copyright and patent in software (and who contacts me). The question: what are actions that businesses can take to carry out a vision of open collaboration via IP strategy?

As a former law student and current software company CEO, I have become frustrated with how abstract and academic IP discussions are. I know enough to be dangerous, and actually want to center in on: how can people like me use IP strategy to make our projects more open to collaboration, without making them exposed?

I’d love to get strategic advice in a debate environment. I’d also like to lay out below the IP landscape as I understand it to exist, and recall to some of the great IP visionaries of the early internet days, especially the Grateful Dead lyricist-turned-IP scholar, John Perry Barlow. Enjoy, and I will update this post once Brandon lets me set a date!

Copyrighting Code: Function masquerading as form

When I was taught about intellectual property, I learned about Google vs. Oracle, a case where the US Supreme Court considered the question, “Are API’s functional?” This may seem a strange question (when I ask computer scientists this question they always laugh helplessly), but the background is: According to US Copyright Law, “In no case does copyright protection . . . extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” This means that code may be copyrighted if descriptive but not if a functional, ‘useful article‘–and so, the esteemed Court needed to decide, effectively, is the Application Program Interface (API) code that allows softwares to request or send data purely decorative?

Until the Supreme Court, thank god, ruled that copying API code was in fact a “fair use” of API’s, the lower court’s ruling had actually held that: (1) API’s are creative, nonfunctional, and copyrightable, and (2) Google owed Oracle money for their impudent CTRL + C of API code. I’m relieved Google won, but I was totally shocked that the Supreme Court reversed only part two of the lower court decision, leaving part one unaddressed. I actually was speechless, because if they recognized it was a fair copying (in the case that API’s were useful), how could they still allow Oracle to claim copyright over them in the first place?

This is just one of the ways in which law school showed me that IP law had a reckoning, from the 1990’s to today, on how it should live on in a field that has undermined its very purposes for existing. By that I mean, if intellectual property keeps people from copying inventors and thus reducing their benefit (compared against patent-granted artificial monopolies) or raising their cost (from the cost of printing, one of the key justifications of copyright), how will it live on in the world where printing is free and inventions benefit more from CTRL + C than they suffer?

Patenting Code: Calling Dibs on How Everything Works

While my copyright classes mostly shocked me by showing me how much we lie and pretend useful things are ‘creative’, patent classes astounded me in the ways companies would assert that they invented general practices. Patents are only supposed to be eligible if they are novel, useful, and non-obvious, and they cannot cover nature, abstractions, or mathematical formulas. Or, rather, that is what the rules say; the actuality is that patents constantly used to monopolize basic processes like “one click” buying or “rounding the edges of a square.” However, rather than pick on low-hanging fruit, I’ll note that the current leading case in software process patents is Alice v. CLS, which like Google v. Oracle, struck down IP for a very limited reason that betrays the nonsense that patents are in a digital world.

Alice Corp. had patented a software method for financial trading systems to reduce ‘settlement risk,’ the risk that one party does what they are supposed to do and the other does not. This sounds fancy, but if you read the early opinions, even the district court judge noticed that the patent basically covered the idea “of employing an intermediary to facilitate simultaneous exchange of obligations in order to minimize risk.”

This made it all the way to the Supreme Court, and thank god, they decided that Alice failed the following test of patentability of methods related to abstract ideas: (1) does the software method contain an abstract idea? (2) If yes, did the patenter add an “inventive concept” that gives the idea “something extra.”

In case you were wondering, yes, they literally said “something extra.”

Thus ended a multi-year lawsuit over whether Alice could stop other companies from minimizing risk. As if we need any more proof that judges and lawyers simply cannot understand how coding works, or how invention works, or how natural law works, one appellate judge recommended extremely broad patentability of general principles, abusing the Einstein quote of “even gravity is not a natural law” to imply that, maybe, Einstein could have patented general relativity?

These sorts of vague precedents that leave the door open to patenting basic processes. Outside of software, there are a Myriad of cases (pun intended, about a case where the Supreme Court ruled that excised DNA was patentable because Myriad figured out how to slice it) where judges let companies patent things that stretch credulity. It makes me wonder, especially given that research on the history of patents in the physical world shows that patents often hamper and harm innovators that make me question what we restrict in the name of rewarding innovators. In DNA, patents have overreached in an attempt to control a growing, organic, copying engine. In software, they often do the same, leaving developers in fear of the power of CTRL + C.

The shared vision: Wine without Bottles:

In setting up this debate, I am stealing the creative work of IP pioneer and Grateful Dead lyricist, John Perry Barlow, who posed the following riddle:

If our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? And, if we can’t get paid, what will assure the continued creation and distribution of such work?

Barlow’s central question cuts to the very core of IP. If the goal of restricting CTRL + C was to reward innovators for generating copies of their work, what is the point of these restrictions when generating copies is free? If we no longer must pay to produce bottles to hold our wine, and it flows forth as a bounty from the springs of invention, should we force this flood to be contained at all?

The riddle has but one answer, and I cannot say it better than Barlow; anyone who is interested should read his whole treatise on Wine without Bottles here. I will add only that, as an inventor, I know that his vision of bottlers minding their own business has not come to pass fully, but that the growth of open-source projects shows that bottling code does not, in fact, age it like fine wine. In fact, if you follow the money, “Smart developers like to hang out with smart code. When you open-source useful code, you attract talent.” This gives me hope, and I want to build on that hope with ways to make his vision a reality.

Let’s debate the best way to enact a vision, rather than the vision

As an inventor considering how to build a successful software company meaning that I literally face the question of how to engage with the IP system, this question is one in which I am deeply interested. I’d like to hear fresh takes on how entrepreneurs can realistically act when deciding, should we bottle our wine? Should we allow other people to bottle and sell it? If my goal is to bring wine to those who are thirsty, how can I think about bottles?

I’m looking forward to what I hear, and as a bonus, I’ll give you my most inspiring Barlow quote, from his Declaration of the Independence of Cyberspace:

Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.

We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.

We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.

Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here

. . . .

You [world governments] are terrified of your own children, since they are natives in a world where you will always be immigrants. Because you fear them, you entrust your bureaucracies with the parental responsibilities you are too cowardly to confront yourselves. In our world, all the sentiments and expressions of humanity, from the debasing to the angelic, are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat.

Julian Simon’s life against the grain

Edwin van de Haar Books, Culture, Economics, History, Liberty, Philosophy, Politics , , , , ,

I did not meet many of the postwar great thinkers of classical liberalism. There are two exceptions. In 2005 I had a chat with James Buchanan to ask him if I could translate the talk he gave to an audience of graduate students at the IHS summer seminar at the University of Virginia at Charlottesville. He agreed and I translated and published his ideas on ‘the soul of classical liberalism’ in a Dutch liberal periodical.

The other exception is Julian Simon. Perhaps not in the same league as Buchanan, he was certainly a maverick thinker and a classical liberal great. A navy officer, business man, and advertising expert who turned to academia, he is known, to name just a few, for his arguments in the field of population growth, immigration studies and of course the book The Ultimate Resource. In it he argues that all raw materials become cheaper, while humans are the ultimate resource, among many other issues. He also won a famous wager with his critic Paul Ehrlich, stating that the prices of the raw materials Ehrlich could choose (in fact copper, chromium, nickel, tin, tungsten) would decrease (inflation adjusted) over the period of a decade they agreed upon. But that is just the tip of iceberg of this most interesting man. You should really read his autobiography A Life Against the Grain, whenever you have the chance.

In 1995 a friend of mine and I founded the Dutch Benedictus de Spinoza Foundation, meant to group young people educated in (classical) liberalism. In our first public Spinoza-lecture in 1996 Simon agreed to be the speaker. If memory serves right he was on his way to or from a Mont Pelerin Society meeting in Vienna, and was willing to make a small detour. We spent two full days with him, touring The Hague, arranging an interview in a national paper, have a formal dinner with Simon as gues of honor and speaker, and so forth. He was the most congenial guest one can wish. He clearly did not want to be among the hot shots only. In fact he insisted that we should visit ‘the worst neighborhood of the city’. So we went to one of the poorest parts in town, which he found delightful, not because of the (relative) poverty, but because of the multicultural experience and multicultural food at the market.  An other remarkable feature was that in the half hour before we opened the lecture hall, he wished to take a nap on the floor right there!

In his autobiography he is open about his many rejected papers throughout his career, and the way he described how difficult it is to convince academic colleagues of a point that goes against conventional wisdom. No matter how strong the counter-evidence, people will choose to ignore the new facts or insights and keep the author out of the inner circle for as long as possible. I must say it sounds familiar to me, as an author who has attempted to change the views of (classical) liberals and IR theorists on international relations and (classical) liberalism. Even the obvious fact that trade cannot possibly foster peace seems impossible to establish. Alas, reading Simon one also learns to never give up, the truth shall be told, although there is no guarantee of success!

John Rawls at 100

Nick Cowen Books, Current Events, History, Philosophy, Politics , , , ,
Neoliberal Social Justice available April 2021

John Rawls, the most influential political philosopher of the 20th century, was born 100 years ago today. He died one year before I first read A Theory of Justice as part of my undergraduate degree in philosophy at University College London. This year, Edward Elgar publishes Neoliberal Social Justice: Rawls Unveiled, my book which updates Rawls’ approach to assessing social institutions in light of contemporary economic thought.

Mike Otsuka (now at the LSE) introduced us first to the work of Robert Nozick and then to Rawls, the reverse of what I imagine is normally the case in an introductory political philosophy course. Most people ultimately found Rawls’ the more attractive approach whereas I was drawn to Nozick’s insistence on starting strictly from the ethical claims of individuals. I wondered why something calling itself ‘the state’ should have rights to coerce beyond any other actor in civil society.

Years of working in public policy and studying political economy made me recognise a distinctive value for impersonal institutions with abstract rules. Indeed, I now think the concept of equal individual liberty is premised on the existence of such institutions. Although the rule of law could theoretically emerge absent a state, states are the only institutions that have been able to generate it so far. Political philosophy cannot be broken down into applied ethics in the way Nozick proposed.

Some classical liberals and market anarchists are increasingly impatient with the Rawlsian paradigm. Michael Huemer, for example, argues that Rawls misunderstands basic issues with probability when proposing that social institutions focus on maximising the condition of the least advantaged. Huemer argues that Rawls ultimately offers no reason to pick justice as fairness over utilitarianism, the very theory it was directed against.

I think these criticisms are valid for rejecting the blunt assessments of real-world inequalities that some Rawlsians are apt to make. But I do not think Rawls himself, nor his theory when read in context, made these elementary errors. Rawls’ principles of justice apply to the basic structure of social institutions rather than the resulting pattern of social resources as such. Moreover, the primary goods that Rawls take to be relevant for assessing social institutions are essentially public goods. It makes sense to guarantee, for example, basic civil liberties to all on an equal basis even if turns out to be costly. I can think of two reasons for this:

  1. In a society not facing acute scarcity, you would not want to risk placing yourself in a social position where your civil liberties could be denied even if it was relatively unlikely.
  2. Living in a society where basic liberties are denied to others is going to cause problems for everyone, whether through regime instability or fraught social and economics relationships that are not based on genuine mutual advantage but coercion from discretionary powers.

To be fair to utilitarians, J.S. Mill went in this direction, although one had to squint to see how it fit into a utilitarian calculus. But if Rawls was ultimately defending a more principled approach to social relationships using the tools of expediency, I see that as a valuable project.

So, I think that the Rawlsian approach is still a fruitful way to evaluate the distinctive problem of political order. His theory offers the resources to resist not just utopian libertarian rights theorists, but also socialists and egalitarians who similarly fail to account for the distinctive role of political institutions for resolving problems of collective action. Where I think Rawls erred when endorsing what amounts to a socialist institutional framework is on his interpretation of social theory. Rawls argued that people behave pretty selfishly in market interactions but could readily pursue the public good when engaged in everyday politics. I argue otherwise. Here is a snippet from Neoliberal Social Justice (pp. 96-97) where I make the case for including a more consistently realistic account of human motivation within his framework:

Problems of justice are not purely about assurance amongst reasonable people or identifying anti-social persons. Instead, we must consider the anti-social person within ourselves: the appetitive, biased, narrow-minded, prejudicial self that drives a great deal of our every-day thoughts and interactions (Cowen, 2018). If we are to make our realistic selves work with each other to produce a just outcome, then we should affirm institutions that allow these beings, not just the wholesome beings of our comfortable self-perception, to cooperate. We have to be alive to the fact that we are dealing with agents who are apt to affirm a scheme as fair and just at one point (and even sincerely mean it), then forgetfully, carelessly, negligently or deliberately break the terms of that scheme at another point if they have an opportunity and reason enough to do so. Addressing ourselves as citizens in this morally imperfect state, as opposed to benighted people outside a charmed circle of reasonableness, is helpful. It means we can now include such considerations within public reason. The constraints of rules emerging from a constitutional stage may chafe at other stages of civil interaction. Nevertheless, they may be fully publicly justified.

Why is the Republic of India a Civilization-State?

Vishnu Modur History, Philosophy , , , , , , ,

Why is the Republic of India a Civilization-State?

On 26 January 1950, India’s Constitution came into effect amidst severe apprehensions about India’s balkanization. So, seventy-one years later, the Indian democratic republic may still appear to be a historical accident, but it is not. Here is why:

India has always been a fertile territory for experiments in governance, but surprisingly, there is no more than a casual reference to the ideas underlying non-western civilizations in Political Science courses or History of Political Thought. The neglect of Indian polity is particularly striking, for apart from Western political thought, Indic political ideas comprise the most extensive and most crucial body of political philosophy. Moreover, these political ideas are integral to Indic civilization—one of the only surviving non-western civilizations. Today, we know that Western ideas have clearly impacted Indian political thought. Still, what is generally not realized is that India has also contributed to Western political thinking in all probability. 

The problem of scant attention given to Indic political thought compared to Indic religion and philosophy was partly remedied with the re-discovery of Kautilya’s Arthashastra —the Indic equivalent of the Machiavellian, The Prince. However, other great works like Kamandaki’s Nitisara— Elements of Polity, the Raj Dharma (administrative ethics) section of the epic, Mahabharata, the epic Ramayana, Digha Nikaya (Collection of Long Discourses), and to some extent antiquated Hitopadesha (Beneficial Advice) also deal with an Indian way of thinking about the state-society relationship. 

Drawing from these essential texts and Indic political thinkers, the king’s role is viewed mainly as an administrator—the ruler is not an agent of social change. This view is radically different from its counterparts in the West. In Western political theory—Rousseau, Locke, and Hegel—political order means the subjugation of society to the state. In Indian tradition, the society and culture are always supreme, and the ruler is accountable to dharma (Indic ethics—a common internal bond) and society. Therefore, the conception of the “state of nature” in Hobbes and Rousseau is irrelevant to Indic tradition because ethics and civilization preceded the state’s development in India. In the Ramayana and Mahabharata’s grand narratives, an esoteric reading accounts for personal ethics and the path to profound spiritual freedom. But an exoteric view informs us of political power, administrative ethics, and the limits of provisional freedom. According to these epics, the state is created to protect against the disintegration of social order, and the state is given only those powers required to do so. Thus, a ruler’s powers are not like those of the Leviathan conceptualized in Hobbes.

Despite these radical Indic political concepts, the popular view on ancient and early medieval India is that it was merely a region invested in despotism with no knowledge of Freedom or Liberty. Hegel assumed that only one tribe of men were free in Asia, and others were their slaves. It is worth noting that for almost thousand eight hundred years after the Greek republics collapsed, the Western world also lived through monarchical despotism and tyranny. Likewise, apart from ancient Greece and Rome, in India too, there existed republics and proto democracies. A fair study of Indic history informs you that ancient Indian republics were not only in existence from the 8th century B.C. to 4th century A.D., but they were doing some fascinating experiments in state-society relations. With time, at least four different forms of constitutions emerged. 

  1. Arajya: A political community without a king. These communities self-governed using Dharma texts (Indic ethics).
  2. Ganarajya: A state or a political community ruled by a ‘gana’ or an assembly of people.
  3. Youvarajya: A political community ruled by a crown prince.
  4. Dvairajya: A political community ruled by two kings.

For various reasons, Ganarajya and Youvarajya systems thrived much more than the other two. 

The ‘Gana‘ seems to be the earliest Indic political forum of the entire community (Jana). The Jana’s formulation of political policies rested with the Samiti (Sanskrit for Committee) and the Sabha (an assembly of elders). Over time, these Ganarajya states developed into Janapada—a self-sufficing political and cultural unit. Every Janapada had its peculiar dialect and customs developed from regional interpretations of Indic Dharma (ethics). Several of these Janapada states even joined hands to form a federation of Mahajanapada (mega-Janapada). Over time, however, powerful Indic monarchies who performed the state’s integrative functions better than the assemblies of Gana overwhelmed them. Fortunately, imperial states incorporated these republics into their fold; republics were not entirely stamped out, even after repeated invasions by the Turks, Mongols, Portuguese, French, and the British. 

The Gana-Sabha system emerged from the shadow as soon as these imperial powers became weak. The Sabha system was active in the village setting as Panchayat (village associations) that included both notable big men and peasants, in contestation with each other and in opposition to the state. Here, different qualities of people and opinions were tested, rather than the scene of a pronunciamento by elders. Even the British acknowledged this system. Henry Maine, who was influenced by J. S. Mill, was sent to India in the 1860s to advise the British government on legal matters. He came across several accounts of thriving indigenous systems of autonomous village governments, whose structure and practice shared many characteristics of participatory democracy. Later, Maine articulated a theory of the village community as an alternative to the centralized state. In the Panchayat system, De Tocqueville saw an ideal model of a society with a limited state. He planned to study it, comparable to Democracy in America but overwhelmed by his political duties, he never managed a trip. So, while Indian electoral democracy was only instituted in the first half of the twentieth century, the practice of public reasoning, deliberation, and toleration of a plurality of ideas is a much older phenomenon, dating back to ancient Indic traditions. 

During the 1947 Constituent Assembly Debates of post-colonial India, there was an Alexander Hamilton vs. Thomas Jefferson sort of debate between Gandhi’s idea of Indic village-style, decentralized administration vs. B. R. Ambedkar’s —the principal architect of the Indian constitution—healthy centralized state. Although Ambedkar’s view prevailed, the village democracy did not entirely disappear from the Indian constitution. India officially called itself Bhārat Gaṇarājya, and the first two words of the Indian national anthem honor Jana and Gana. Hence, the constitutional democracy of the Indian republic was not an accident; it is a sui generis phenomenon reflecting the plural character and age-old but essential values of Indic civilization. Therefore, modern-day India is a Civilization-State. The West can only describe it from the outside, but it is for India to interpret herself from within—an ongoing process.  

Finally, it merits mentioning that Professor of international history Arnold J. Toynbee reminded the world, “India is a whole world in herself; she is a society of the same magnitude as our Western society.”

To know more about India’s constitutional debates, check this excellent ten-episode series. Subtitles are available in English.