Some Reflections on Liberal Democracy, Political Meritocracy, and Critical Rationalism

We live in times in which the liberal democracy is challenged by a sort of political meritocracy according to which a performance legitimacy — i.e., the utility that government management brings to the population – would be more important than the legitimacy of origin, based on the consent of the sovereign people. Thus, economic growth and its beneficial consequences for the governed are presented as substitutes for liberal values, which often also encounters difficulties in its governance. The next step would be to replace liberal democracy with a single-party meritocracy, legitimized in its ability to efficiently provide public goods to its population. In this context, is Contractualist Rationalism still a sufficient foundation for liberal democracy? We will seek to respond to this query with the answer to another question, related to the previous one: What position would the so-called anti-Contractualists or anti-Rationalist assume in the current context?

Both for David Hume and later for Edmund Burke, political power lacks legitimacy of origin. They stated that every government is born either by conquest or by usurpation, since for a social contract to even be conceived, it must be preceded by a system of legal norms in which to fit. Therefore, if there is a political obligation on the part of the governed, it has its source in the legitimacy of exercise that, day after day, the rulers gain. However, such source of legitimacy does not come exclusively from the force with which governments impose compliance with their laws, but in the common interest of the rulers and the ruled to maintain the validity of certain norms of coexistence or justice, whose discovery is born of the practice of interactions between different individuals, its fulfillment generates a long-term benefit for society and its application begets concern for the aforementioned common interest among all members of the social and political body.

Norms and human nature

David Hume distinguished, for this, between natural and artificial virtues, belonging those norms of justice to this last category, since the man in himself would not have a natural propensity to comply with them, but they depend on a critical reasoning capable of being able to see the convenience of the universalization of such standards. For this reason, the Scottish philosopher proposed a model of an agent who behaved in accordance with a principle of limited generosity: he was not exclusively selfish, but rather had an empathetic capacity capable of putting himself in the place of his fellow man. In turn, he was not entirely rational, but that same empathy moved him to act according to his passions, such as to prefer his own kind to strangers. Continuous interactions with other human beings following this behavioral model of limited generosity allowed the social fabric to be endowed with certain structuring regularities, by virtue of the habit born from the repetition of actions inspired by said principle of limited generosity -and the consequent expectations regarding the behavior of own and others arising from the aforementioned habits of conduct.

This plexus of habits and expectations allows agents to make decisions based on a given structure of human interactions that can be identified through a standard of expected behavior, distinguishing what should be from what is not expected to be. Such rules of conduct are called by David Hume as “of justice” and their compliance habit configures “artificial virtues,” since on certain occasions they may conflict with the natural virtues concerning the principles of limited generosity that make the agent prefer his own kind to the others.

In this way, David Hume stated that human interactions form a social structure that is built upon notions of justice that he identified as those of stability in possession, its peaceful transmission and the fulfillment of the promises. These consist of social institutions that arise spontaneously from human interaction and that, because on certain occasions they may conflict with private interests, are not universally accepted spontaneously, but rather, on the contrary, need the support of force for their fulfillment. It is by providing such enforced compliance with the norms of justice that governments gain their legitimacy of exercise.

Although, as we said, the observance of these practices and institutions constitutes a particular interest shared by all members of society, since they all share the natural virtues of looking after the interests of their own group and this is what make them peacefully prosper. Nevertheless, it would be useful to illustrate those instances in which the passions that make up the natural virtues conflict with the rules that maintain such a peaceful order of coexistence and exchange: such is the case, for example, of compliance with the promises.

If a person hires another for the manufacture of a certain work that will take a certain time to complete, pays him an advance on account of the payment of the total price at the end of the work, both will be faced with possible conflicts of interest when fulfilling their respective promises. Once the contractor receives the advance of the price, he will be faced with the dilemma of complying with the execution of the work and bringing it to completion or assuming the opportunistic behavior of allocating such a sum of money for another more desired interest: to buy toys to their children, for example. Suppose that the contractor complies with his commitment and delivers the work to his client in a timely manner. In this case, the latter will be faced with the dilemma of honoring his commitment and paying the balance of the price, receiving the work, or allocating that money to a more urgent and priority need at the moment, such as helping his parents to raise a debt. If social organization were structured exclusively around natural virtues, Hume reasoned, the fulfillment of promises would be highly unlikely. Thus, artificial virtues are born, such as justice.

The role of government, in Hume’s view, is to give mandatory force to the spontaneous norms of justice -such as the aforementioned stability in possession, the peaceful transmission of said possession and the fulfillment of promises- through the establishment of sanctions and compensations that discourage non-compliance. Thus, if the contractor in our example chooses to allocate the money from the advance of the work for which he had been hired to buy toys for his children – since, naturally, the happiness of his children is above the happiness of his client -, then he should pay his counterpart a compensation for damages that will far exceed the value of the said toys. In this way, the happiness of the children of the contractor will be better guarded if he fulfills his commitments. Correlatively, if at the end of the work the contractor hands it over to his client and the latter refuses to pay the balance of the price, given that he prefers to allocate the said amount of money to pay a debt from his parents, then he will have to face a compensation that probably would exceed the value of the debts, so the debtor in this case will have a strong incentive to fulfill his part of the contract.

However, there are cases in which the breach of a promise is still advantageous even when opportunistic conduct is threatened with the payment of its compensation. In those cases, the need to be met is so urgent that its value exceeds the standard set by the positive law for breach of contract. These are the cases in which the contractor in our example no longer must buy toys, but rather food or medicine for his children, or in which the parents of the buyer of the work will have to put their house up for auction if their son does not help them in due time. In both cases, what we have is a general and abstract rule: in the case of a breach of contract, the debtor owes the payment of principal and an interest rate. On certain occasions, it will be convenient for the debtor to make the payment, on others, to face the costs of the breach.

Every system of abstract norms is articulated around standards of conduct in accordance to which the agents make decisions that will have to be rational from an ecological point of view. For example: in American law system of torts, the Rule of Hand (in honor of Judge Learned Hand) establishes that a person, in order to avert a certain risk, cannot be asked to incur in costs greater than the value of the said risk (that is, the value of the protected asset multiplied by the probability that the loss will occur.) Thus, if to avoid losing an asset with a value of $1,000 and whose probability of the loss occurring is 1%, it is unjustifiable because it is unreasonable to require its guardian to incur costs greater than $10. Likewise, in this case, personal utility and social utility coincide, since higher expenditures would mean a decrease in aggregate wealth. Correlatively, in the legal world linked to the European Continental tradition, heir to Roman law, there are expected standards of conduct such as those of a good businessman and a good family man, which establish the upper and lower limits of the duty of care.

In all cases, the person who makes the final decision about whether or not to carry out a certain action and face the consequences, natural and legal, is the individual. Empathy towards someone who is considered as one’s own works as a natural limiting factor for action, as well as rules of courtesy and moral guidelines. They all act as empirical institutions. When these are insufficient for the purpose of maintaining a stable structure of peaceful exchanges, positive legal norms become relevant, establishing mechanisms of patrimonial compensation and repressive sanctions that have a dissuasive purpose with respect to a certain range of actions. However, a liberal legal system will never prevent the commission of certain actions, but will limit itself to discouraging them and, if carried out, to compensate them. In this way, each individual will have to decide their course of action according to their particular circumstances of time and place, refraining in some cases from carrying out certain actions and, in others, carrying them out knowing that their omission is more disadvantageous than the compensation or threatened sanction.

Suppose a man wants to avenge the outrage and murder perpetrated against a daughter of his, who went unpunished due to difficulties in the evidence. The state cannot apply repressive sanctions against the suspect of the crime because he has procedural guarantees that are inviolable. However, nothing prevents the offended party from choosing to take revenge at the price of being criminally sanctioned. We can assume that the suspect of the crime achieves an interdiction against whoever is chasing him, prohibiting him from approaching him within a certain radius of meters. However, the vigilante will have to prefer to violate such a prohibition and kill the person who, according to his particular conviction, is the author of the crime against his daughter. In this last case, there is no room for doubt: the avenger is the author of the homicide against the suspect of the previous crime. The avenger ends up sentenced to serve some years in prison, plus the payment of a fine for having violated the interdiction and the payment of compensation to the relatives of his victim. Well then, the criminal being convinced of the justice of his decision, that conviction will seem like a convenient price to pay in order to avenge the outrage followed by the murder against his daughter.

Such a case does not represent a failure of the legal system as an incentive structure for decision-making. On the contrary, it is a typical case of how such a system works. Compensation and repressive sanctions are prices that structure a certain ecological rationality, since under a certain matrix of compensation and sanctions one decision will be rational, while it will not be under another. If, for example, simple homicide is punished with a sentence of deprivation of liberty from eight to fifteen years, which can be extended to twenty-five years for cases of aggravated homicide, then certain actions will be irrational and others will remain reasonable. It is unreasonable to risk receiving such a penalty in the face of a verbal insult and, as we have already seen, there are other circumstances in which an individual is willing to assume not only the risk but also the certainty of being punished.

As a result of this system of incentives represented by the norms of justice, the final distribution of resources will correspond to a greater social utility, even in cases of violation of the aforementioned norms of justice, since no one will be forced to sacrifice resources inefficiently, above its opportunity cost. In this way, we see how David Hume offers us a sort of pre-utilitarian foundation for the norms of justice. However, this utilitarian-like notion also makes it possible to comply with an ethical requirement: for the purposes of complying with the rules of justice, no one is taken as a mere means, since compliance with them must provide some type of utility for each subject and, in otherwise, he is free to break the law and voluntarily face the consequences of such non-compliance, which he judges more advantageous than obeying the law itself.

The antagonism of interests between rulers and ruled

However, although a legal-political system understood in this way preserves its morality – since it encourages each individual to act contributing to the general welfare without losing sight of the fact that each individual is an end in himself -, its raison d’etre is not in the immediate interest of each agent in general, but in the immediate interest of a particular agent, who has interests diametrically opposed to the generality of the rest of the agents: the ruler. This does not pursue the protection of the general interest in the long term by enjoying a special moral predisposition, but by the particular interest of increasing its tax collection by increasing general wealth. The ruler who has a long-run horizon does not find it convenient to consume capital, but rather to increase it. Consequently, the government -being understood as the state– is directly interested in enforcing the rules of justice, although this often implies contradicting the direct and short-term interests of the governed.

Of course, David Hume also admits that, under exceptional circumstances, it would also be convenient in the long-run to temporarily suspend the rules of justice. This would be the case, for example, of a foreign exchange or bank run, in which, respectively, the foreign exchange market is suspended or the return of deposits is rescheduled. Both a devaluation of the currency and a rescheduling of bank deposits mean a disappointment to the legitimate expectations of holders of local currency or depositors, but a bankruptcy of the currency board, the national treasury or the banking system would cause greater damage -for both the ruler and the ruled.

But, removing those exceptional cases, the general rule is that the interests of the government are the opposite complement of the interests of the governed. While the former maximizes the utility of its resources by promoting the norms of justice, the latter do so by assuming opportunistic behavior – it is worth remembering here the well-known phrase by John Maynard Keynes, insofar as “in the long run, all we are dead”. However, the long term arrives and the societies that have a high level of enforcement of the rules of justice experience higher capitalization indices than the societies do not. It remains, of course, to see who appropriates such a surplus, if everything belongs to the ruler, or if the ruled can capture some of the surplus wealth generated by the effective enforcement of the rules of justice.

In this aspect, the classic forms of government are of particular incidence: a monarchy will have the advantage of having a greater incentive to enforce the rules of justice, which in the long run increase and deepen the structure of capital and, consequently, the tax collection. At the other pole, direct democracies would tend to find numerous exceptions to the rules of justice, rendering them completely ineffective. A mixed form of government, such as a constitutional monarchy in which the king is the head of state and the leader of parliament the head of government, would balance the interests of the rulers and the ruled. Those who are interested in increasing tax collection and those who seek to reduce it. The best way to reconcile both interests would be to encourage the formation of capital through the reassurance of the rules of justice: stability in possession, the peaceful transmission of it and the fulfillment of promises. In this way, governments legitimize themselves through the exercise of power aimed at ensuring compliance with a spontaneous regulatory system, which works at the same time as a system of incentives. In this line of argument, we can find the previously named Edmund Burke and Benjamin Constant.

Not in vain are the national states the natural heirs of the absolutist monarchies. The state is an institution -or a fiction, as Quentin Skinner points out- with a vocation for permanence and perpetuity. For the state, there is no short-term calculation, although it does find -in return- opportunistic behavior by officials and magistrates. When a simple individual acts in a way contrary to the law, he assumes the risk of being discovered by the state, which watches over the long-term interest. However, when this same individual manages state assets, his willful conduct has more devices to go unpunished. Therefore, we find in all systems a special responsibility of state administrators and other officials. But, above all things, we find ourselves with a system of checks and balances, of officialdom against opposition based not on virtue, but most of the time on the desire and competition to seize power and displace under any pretext the competitors. Modern liberal democracy means not only an abstract legal system for the governed, but also a set of abstract rules and anonymous procedures that encourage competition between different aspirants to political power.

The problem of the legitimacy of power

David Hume’s empiricism allows us to conceive how the legitimacy of the government does not come from its conditions of origin but from the exercise of power for the profit of the rulers and of the ruled. Furthermore, the norms of justice are regarded as desirable or good because compliance with them increases wealth and guarantees an equitable distribution of the said income between the rulers and the ruled. However, there is no a priori content of such norms of justice, but it emerges from the nature of things and only after a critical study of such circumstances can we infer the enunciation of the abstract norms and patterns that compose it. Furthermore, the abstract normative system that precedes governments and legitimizes them through their exercise is also made up of empirical norms that are not enunciated or are impossible to enunciate -as Friedrich Hayek noted in his work “Law, Legislation and Liberty“. It is worth saying that the spontaneous normative order that we call under the category of “norms of justice” does not depend on a positive enunciation but on its observance in the facts. It is through the positivization of certain principles of justice that governments, lacking in themselves any legitimacy of origin, acquire legitimacy of exercise.

Denying that every government has legitimacy of origin implies denying that there is a moral obligation to obey positive law whatever its content. Positive law is accompanied by a moral obligation to be obeyed when its purpose is to give binding force to spontaneous norms of justice, which contribute to the general well-being of the members of society. However, this does not mean that each individual has the competence to decide for himself if a positive legal norm has moral legitimacy to be followed, but rather that this depends on a critical judgment that is made taking into account not only the particular interest of a given subject, but the general interest of the whole society. To be valid, the particular judgment of each individual regarding the legitimacy of a positive norm must meet a necessary but not sufficient requirement of impartiality -and, thus, universality.

At this point, then, it is appropriate to ask how the rulers can identify those norms of justice from others that have only the appearance of being so but actually only respond to a particular interest. It is in this instance that the characteristic of spontaneous, tacit, or express compliance with the norms that make up a spontaneous order takes on special importance. This is because, if there is a given order, in which individuals interact, form expectations around the actions and decisions of their peers and coordinate individual plans among themselves, the observed empirical norms at least fulfill the task of maintaining stable, albeit in a precarious and provisional way, the said order. Furthermore, our own personal constitution, as subjects who recognize themselves as identical to themselves over time, depends largely on a stable order of events from our environment. As Friedrich Hayek explained at the time, what we call spontaneous order can also be characterized as the structure of reality in its aspect concerning human interactions, both instantaneous and sustained over time.

In conclusion, the line of the so-called anti-Contractualists or Empiricist could in no way be affiliated with the current critique of liberal democracy by surrogate candidates, such as a single-party meritocracy, which is efficient in promoting the economic growth for the population, at the cost of their political rights and the subjugation of certain human rights, such as freedom of expression or the right of assembly. On the contrary, the way in which governments legitimize themselves, regardless of the legitimacy of their origin, is to give mandatory force to a set of norms and values that concern fundamental or natural rights and political freedoms.

Stimuli For Your Moral Taste Buds

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 I: The Problem of Dialogical Illiberalism

Note: This is part of a series on public discourse. View Part 2 here.

Older readers of NOL may have noticed I have been absent from the blogosphere for the last four or so years. Part of this has been that I have rather intentionally taken a somewhat monkish vow of silence on many things that perplex me about the contemporary world. On many of these issues—the growing tide of global populist authoritarianism, the policy and cultural responses to COVID, and increasing political polarization to name a few—I still don’t know what is true or if I am equipped to say much other than express a vague, general sense that almost everyone in those debates has gotten something fundamentally wrong. Consequently, I have taken time in a philosophy grad school program to think about more fundamental issues rather than get lost in the daily obsessions of the internet. Now, I am done with that venture and have decided for various personal reasons to not pursue an academic career so I will have more time to write more freely here.

I think even more than my being epistemically overwhelmed by the…everything…of the last few years or even the time and energy constraints of grad school, a bigger reason why I have been loathe to blog or engage in public discussion has been a sense of frustration, exhaustion and melancholic angst with the state of public discourse, especially online. It seems like nearly everyone today—from partisan activists to family members, to friends, to even respected thinkers whose ideas have influenced me in the past, seem to be guilty of contributing to this problem. I surely do not exclude myself from these criticisms of the zeitgeist, for the zeitgeist very much lives in my head. For now, rather than discuss any substantive issues, I am going to start a series about some meta-issues that have poisoned our public discourse and made it unpleasant and even psychologically impossible for me, and I am sure others, to write publicly.


For now, I just want to narrow in on identifying the symptoms of our ruined discourse. I am talking about how almost every one of almost every ideological stripe these days constantly displays a vicious lack of charity to almost everyone they engage with who they vaguely associate with some outgroup. An illiberal intolerant attitude where their first impulse is to try to censor ideas that they find disagreeable. For the politically engaged and outraged, it seems like no disagreement can be a good-faith one. So many seem to just assume that almost anyone they disagree with is acting in bad faith. To be sure, many people are acting in bad faith, but that is no reason to become the monster one is fighting or assume that as the default with every interlocutor. So many people treat nearly every difference of opinion, no matter how great or small, not as potentially interesting differences in values that can be commensurably discussed or interesting empirical disagreements, but as “dangerous” ideas that need to be quashed.

I am talking about the tendency for people—everywhere from cable news, to Thanksgiving tables, to Twitter–to “nutpickoutgroups to outrage other members of their ingroups. How so much of political discourse has substituted sub-rational bumper stickers, memes, and tweets for substantive positions and arguments. How so many clearly rationalize terrible arguments they should know better than to make because said arguments have ideologically convenient or politically expedient conclusions. How so many seem more interested in morally grandstanding to their favored ingroup than trying to learn more from those with whom they have fruitful differences. How for some people to even listen to you, they make you engage in some sort of ideological purity test. How they engage in dishonest guilt by association to try to assassinate the character of people they might have minor disagreements with. How they generally view anyone with whom they have disagreements contemptuously

Of course, much of this has always been an element of how hooligans engage in democratic politics. However, the degree to which it has reached a fever pitch is a change from a few decades ago. Further, this loathsome creeping intolerance and lack of epistemic virtue have now seeped from screeching political rallies, Twitter, or Yahoo News comment sections to many self-important elites who fancy themselves above the fray of the irrational cacophony of political discourse, and often help shape that discourse. I am talking the sort of people who stridently read or write for NY Times and The Atlantic, legal professionals, elites in the ivory tower where I once delusionally hoped to find a bubble of safety.

The problem goes by many names—right-wing reactionaries call it “wokeness” or “cancel culture” when done by the left, leftists and progressives call it fascist authoritarianism when right-wingers do it. To some varying extent, both are correct about each other and wrong about themselves. To be clear, I do think the right’s illiberal authoritarianism is very much a bigger threat in this political moment, but rather than spending time unproductively fanning the flames of that culture war debate, let me neutrally call the problem dialogical illiberalism in the small “l” sense of liberalism. It is a form of brain rot that seems to have infected every one of all political persuasions to varying degrees of significance—from conservative culture warriors to socialist Breadtubers, to ostensibly “liberal” centrists, to anarchist antifascist activists, to even my (former) ingroup of some libertarian academics. None of you are free from sin.

In the extreme, the dialogical illiberal is not just an unreasonable conversation partner, but a dialectical rent-seeker demanding the state coercively censor those with whom they disagree. For now, I want to focus on the merely dialogical and social form of this illiberalism simply to avoid getting lost in the complicated intricacies of liberal free speech norms and First Amendment legal disputes. Those are complicated debates worth having but beyond the scope of this series. Suffice it to say, I have little patience for this form of actively statist censoriousness in whatever form. But I think its increasing prevalence has its roots in a culture of dialogical illiberalism that has evolved in the norms of public discourse, which is what I am interested in analyzing here.

This is where, usually, this genre of article goes into some detailed examples and case studies of “the problem” to convince you it is real. Typically, these are rather dishonestly cherry-picked to support whatever implicit tribal position the author happens to have. Frankly, I have no interest in such a performative exercise here—it is better left to the reader. It would just distract us by tempting us to engage in the accidental details of some particular examples rather than stepping back and seeing the bigger picture. I don’t wish to miss the trees for the forest, and neither should you. Suffice it to say, if you are unconvinced of that what I am talking about is a genuine problem, this series of posts probably isn’t for you. You have either been living under a rock (in which case I urge you to return because ignorance is sometimes bliss), are unusually patient with bad argumentation (in which case, I envy you), or might be part of the problem.

I imagine you are nodding your head in agreement and recalling times when this has been done to you or by someone in some other political tribe to someone in your tribe. I encourage you to stop this now and try to recall a time when someone you respect and agree with was being unreasonable and uncharitable to someone else, or perhaps when you yourself have done this in a social media exchange, or with a family member or friend. I know I have. If you are completely incapable of doing this, I encourage you to save yourself some time and stop reading now—this series isn’t for you. Perhaps return to Twitter.

Perhaps at this point, you are trying to rationalize your own version of dialogical illiberalism as somehow justifiable. If you can give an original good faith argument for it, go ahead and I might consider moderating my hardline position against dialogical illiberalism. Perhaps you are thinking something like this: “But they really are so terrible and bad-faith that we should not take them seriously as debaters. You are just engaging in toxic both-sideism!” Perhaps you are right about “them,”—whoever that outgroup might be in your head. However, that is no reason to become just like “them” to the point that you cannot engage with nearly anyone in good faith. Maybe you should reflect on whether you are projecting a caricature of “them” on people who genuinely are not one of “them.” Again, avoid becoming the monster you are fighting. If you do not wish to make that effort, return to the Twitter mob.

Most readers will agree with something like this, to put it bluntly: political discourse is terrible because politically active people are massive assholes to each other. I wish to understand why people of all ideological stripes have become such massive assholes and how I can stop being one myself. If you are interested in trying not to be an asshole too, perhaps you will join me.

I don’t have an explicit plan for this series, I am not sure how many posts it will comprise. But I expect to focus on topics such as how dialogical illiberals psychologically think of themselves while they are engaging in bad-faith discussion, the role of social media in making the problem worse, the extent to which the incentive structure of democratic institutions leads to dialogical illiberalism, the chilling effect this lack of civility has on discourse, and other cultural causes and effects of dialogical illiberalism.  

If you wish, consider this an exercise in therapeutic edification for me and, if you feel similarly, perhaps for you. I am not trying to make an argument trying to convince you of much substantively. If you change your mind about something, consider that a bonus. My goals here are to express my frustration with this moment in American cultural discourse, diagnose some of what I see as the psychological and social factors contributing to the problem, and hopefully come away making myself (and, with any luck, the reader) closer to the sort of person who is not part of the problem.

I do not have all the answers and do not think I will find them here, but I do have two ground rules I hope to establish: 1) It will be hard at times for me not to hide my frustration with people who are characteristically dialogical illiberals, I am sure that has already come through. But, when possible, my hope is to analyze these individuals with the empathetic self-detachment of a good philosophical anthropologist. Do, please, call me out in the comments when I fall short of that ideal.  2) To make my biases clear: I am a very idiosyncratic sort of radical liberal/anarchist/left-libertarian hybrid. I am very much on the left side of the culture wars instinctively, while at the same time I am strongly disposed to think any policy solutions the state could enact are bound to fail. Consequently, I am more likely to be harsher to the dialogical illiberalism on the right side of the political spectrum, yet more knowledgeable of the dialogical illiberalism on the left side. You do not have to be on the same side of those anti-statist policy conclusions or be sympathetic to my radically leftist cultural tendencies to learn something from this series. My aim here is not to convince you to join my oddly specific and strange “team.” I think that sort of mindset is what encourages the dialogical liberalism I am chiding to begin with. I will try to bracket my cultural and policy views where possible and focus more on the meta-issues poisoning our discourse, but I cannot help that those views will often seep through.

The case for Taiwan’s statehood

When Russia invaded Ukraine a few short weeks ago, some people began to worry that China might try to do the same thing with Taiwan. I didn’t worry about this myself, as China is mostly a paper tiger, but also because the US has close military ties with Taiwan. Taiwan has close economic relationships with several wealthy democratic states in East Asia, too. Contrast this geopolitical context with Ukraine, and the parallels, while tempting, do not add up.

The whole debate and worry over Taiwan got me thinking again about federation as a libertarian foreign policy. Why shouldn’t Taiwan just join the United States? Here are the most common objections to such a federation:

Geography. This is probably one of the strongest cases against Taiwan joining the US, since it’s so far away from not only the mainland but Hawaii, too. Aaaand it’s just off the coast of China, which would likely cause friction with the regional power were Beijing to suddenly find itself neighboring a transoceanic republic.

This is all much ado about nothing. A plane ride from Dallas to Taipei is 14 hours if you take out the layovers. Somebody living in Kaohsiung could send me an email after reading this essay and I could access it within minutes. Geography still matters, but its not an insurmountable barrier to a freer, more open world via the federative principles of the United States constitution.

Culture. A big complaint I see about adding “states” to the American republic is “culture.” Fellow Notewriter Edwin does this all the time, and it can make sense, on the surface, in some cases, but not in Taiwan’s, and not in the Indo-Pacific more generally.

Look at Taiwan’s 2020 presidential election results:

Look familiar? There’s only two colors. It’s a contest between a left-wing and right-wing, and both wings are committed to, and bound by, liberty and democracy. There are no “ethnic” parties, no “religious” parties, and no radical parties, mostly because Taiwan has the same electoral system as the US does: a “first-past-the post” one. So the cultural angle is even weaker than first imagined. Taiwan started out as a nationalist holdout against the Communist Party, but today nationalism doesn’t carry a whole lot of weight. Adding Taiwan to the republic would be like adding another California or Hawaii, albeit with more conservative votes. It’s plausible that adding Taiwan would give Democrats two more reliable seats in the senate, but this is merely cause to invite a polity that would reliably vote Republican to also join the United States.

Self-determination / cultural autonomy. There’s an argument in some circles that joining the US would be akin to losing self-determination and even cultural autonomy. I don’t see how any of this could be true. Even today, people in American states retain a “state-centric” identity when it comes to thinking about their place in the US. That Taiwanese would be able to add “American” to a plethora of other identities already at their disposal could only be a good thing.

China. Would China fight a war against the US over Taiwan statehood? Maybe, but given Russia’s poor showing in Ukraine, the war would end quickly, at least from a Taiwanese statehood perspective. The CCP’s military has no fighting experience, unproven tech, unproven hardware, and…no fighting experience. The worst that would happen, I think, is that the CCP threatens war, maybe sends some warships to the strait, maybe fires some rockets over the island and flies some fighter jets over the island, but that’s about it. The CCP just doesn’t have the muster to fight a war against the United States over Taiwan.


These four objections are so common that I can’t help but be exasperated by their banality, especially given the rich tradition of republican security theory and federalist thought over the past three or four thousand years. There are two reasons for Americans, and especially libertarians, to support Taiwan’s federation with the US:

The free riding problem. The first thing that all libertarians complain about when it comes to “foreign policy” is the free riding problem. This is a problem in political economy where agents will enjoy the benefits of a policy at the expense of other agents who are required to bear the costs. Libertarians aren’t wrong to complain about the free riding problem. It’s a big problem. Think of a Russian attack on NATO ally Lithuania.

Taiwan has a fairly hard guarantee of US military support were the Communist Party of China to attack it. This, the argument goes, allows Taiwan to be a bit more reckless than it otherwise would be when dealing with Beijing. Therefore, according to non-interventionists, the US should simply stop guaranteeing Taiwan’s military security and just trade with the people of the island instead. It would be an awful scenario to face were Taiwan to goad China into attacking it and thus draw the US into a war with China.

Federating would end the free riding problem once and for all. Taiwan’s citizens would be American citizens. They would benefit, and pay the costs, associated with such citizenship.

Sovereignty. Taiwan is not a sovereign nation-state, as China has blocked all of the island’s attempts to become so, and it never will be so long as nation-state status depends upon recognition by large states such as Russia and China (as well as the US). This actually makes it easier for Taiwan to join the republic. The American senate is a tool of international diplomacy that was utilized to bind independent states together in a federal union by trading their sovereignty for seats in a powerful upper house of Congress. Taiwan wouldn’t have to go through the arduous process of debating whether or not its sovereignty is worth the price of admission into a North American federal order, because its status as a Westphalian sovereign nation-state is non-existent.

By incorporating Taiwan into its federal order, the US could revamp the liberal world order, and it could do so by adhering to the principles which made it a beacon for liberty in the first place.

The Federation of Free States: Growing pains

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

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

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

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

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

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

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

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

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

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

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

Further thoughts

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

Reactions to the compound republic from other states

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

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

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

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

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

The Misdiagnosis That Continues To Save Lives: Origin Story Of The War On Cancer

In 1969, Colonel Luke Quinn, a U.S. Army Air Force officer in World War II, was diagnosed with inoperable gallbladder cancer. Surprisingly, he was referred to Dr. DeVita, the lymphoma specialist at National Cancer Institute, by the great Harvard pathologist Sidney Farber — famous for developing one of the most successful chemotherapies ever discovered. Nobody imagined back then that Colonel Luke Quinn, a wiry man with grey hair and a fierce frown with his unusual and likely incurable cancer, would significantly impact how we look at cancer as a disease.

Vincent DeVita Jr, MD; Author: The Death of Cancer

Having been coerced to take up the case of Colonel Luke Quinn, despite gallbladder cancers not being his specialty, Dr.DeVita began to take a routine history, much to the annoyance of Luke Quinn who was used to being in command. Though Quinn glared at Dr.DeVita for reinitiating another agonizing round of (im)patient history, he said he had gone to his primary care physician in D.C. when his skin and the whites of his eyes had turned a deep shade of yellow — jaundice. Suspecting obstructive jaundice—a blockage somewhere in the gallbladder, Quinn was referred to Claude Welch, a famous abdominal surgeon at Mass general who had treated Pope John Paull II when he was shot in 1981. Instead of gallstones, the renowned surgeon found a tangled mass of tissue squeezing Quinn’s gallbladder—gallbladder cancer was pretty much a death sentence. On the pathologist’s confirmation, Quinn, being declared inoperable, was sent to Dr.DeVita at NCI as he wanted to be treated near his home. 

James H. Shannon Building (Building One), NIH campus, Bethesda, MD

Dr.DeVita, however, noticed something quite odd when he felt Quinn’s armpits during a routine examination. Quinn’s axillary lymph nodes—the cluster of glands working as a sentinel for what’s going on in the body—under his arms were enlarged and rubbery. These glands tend to become tender when the body has an infection and hard if it has solid tumors—like gallbladder cancer; they become rubbery if there is lymphoma. Being a lymphoma specialist, the startled Dr. DeVita questioned the possibility of a misdiagnosis—what if Quinn had lymphoma, not a solid tumor wrapping around his gallbladder leading to jaundice?

On being asked for his biopsy slides to be reevaluated, the always-in-command Colonel Luke Quinn angrily handed them over to the pathologist at NCI and sat impatiently in the waiting room. Costan Berard, the pathologist reviewing Quinn’s biopsy slides, detected an artifact in the image that had made it difficult to differentiate one kind of cancer cell from the other. Gallbladder cancers are elliptical, whereas Lymphoma cells are round. The roundish lymphoma cells can look like the elliptical gallbladder cancer cells when squeezed during the biopsy. This unusual finding by Berard explained why Quinn’s lymph nodes were not hard but rubbery. The new biopsy showed without a doubt that Quinn had non-Hodgkin’s lymphoma —the clumsy non-name we still go by to classify all lymphomas that are not Hodgkin’s disease. 

COSTAN W. BERARD, MD (1932-2013)

The NCI was working on C-MOPP, a new cocktail of drugs to treat non-Hodgkin’s lymphoma that had shown a two-year remission in forty percent of aggressive versions of this disease. The always-in-command WW II veteran had somehow landed in the right place by accident! It was a long three months for the nurses though, as they hated him for leaning on the call button all-day, for complaining bitterly about the food, for chastising anyone who forgot to address him, Colonel Quinn, and for never thanking anyone. But incredibly, he was discharged without any sign of his tumor; he had gone from certain death to a fighting chance. 

The fierce and unpleasant Colonel Quinn is crucial because his initial misdiagnosis unknowingly spurred the creation of a close network of influential people during his remarkable escape from certain death. He could do this because he was a friend and employee of the socialite and philanthropist Mary Lasker—the most consequential person in the politics of medical research. Read my earlier piece on her

Mary Lasker on her living room sofa; Mid 1950s. Courtesy of the Albert and Mary Lasker Foundation.

Mary Lasker, the timid, beehived socialite circumvented all conventions of medical research management and got the U.S. Congress to do things her way. Mary’s mantra was: Congress never funds a concept like “cancer research,” but propose funding an institute named after a feared disease, and Congress leaps on it. Her incessant lobbying with the backing of her husband, Albert Lasker and her confidante, Florence Mahoney, wife of the publisher of The Miami News, helped create the National Cancer Institute, the National Heart Institute, the National Eye Institute, the National Institute of Mental Health, the National Institute of Dental and Craniofacial Research, the National Institute of Arthritis and Metabolic Diseases, the National Institute of Aging, and the National Institute of Child Health and Human Development. 

From Left to Right: Luther Terry, Mary Lasker, Lister Hill, Florence Mahoney, and Boisfeuillet Jones [Credit: The National Library of Medicine]

Though Mary Lasker knew the value of independent investigators pursuing their unique research interests, she supported projects only when a clinical goal was perceptible, like curing tuberculosis. In 1946, Mary, having noticed microbiologist Selman Waksman’s work on streptomycin—a new class of antibiotics effective against microbes resistant to penicillin—persuaded him and Merck pharmaceutical company to test the new drug against TB. By 1952 Mary’s instinct had won over Waksman’s initial skepticism as the widespread use of streptomycin halved the mortality from TB! Mary Lasker’s catalytic influence on basic research leading to a Nobel Prize-winning discovery is a case in point.

Her clout over Congress was in its prime through the 1950s and 60s when the National Cancer Institute (NCI) was developing the first cancer cures. It was also the period when Colonel Luke Quinn became her influential lieutenant. The Congress believed Luke Quinn represented the American Cancer Society, but he was Mary’s lobbyist in reality. When Quinn got sick, Mary used her contacts to get Welch and Sidney Farber, but it got her special attention when Quinn’s incurable torment was overcome. The ongoing public concern for cancer and Albert Lasker’s death due to pancreatic cancer made it an ideal disease for Mary to draw the battle lines. Quinn’s recovery convinced her that the necessary advance in basic research had occurred to justify taking the disease head-on. In April 1970, she began building bipartisan support by having the Senate create the National Panel of Consultants on the Conquest of Cancer. She prevailed over the Texas Democrat senator Ralph Yarborough to appoint her friend, a wealthy Republican businessman Benno C. Schmidt —the chairman of Memorial Sloan Kettering board of managers—to be the chairman on the conquest of cancer panel. She backed him up by arranging Sidney Farber as the co-chairman. The panel also included Colonel Luke Quinn and Mary herself.

In just six months, the panel issued “The Yarborough Report.” The report, mainly written by Colonel Luke Quinn and Mary Lasker, made far-reaching recommendations, including an independent national cancer authority. It recommended a substantial increase in funding for cancer research from $180 million in 1971 to $400 million in 1972 and reaching $1 billion by 1976. Finally, it recommended that the approval of anticancer drugs be moved from the FDA to the new cancer authority. Senator Edward Kennedy presented the recommendations as new legislation for the Ninety-Second Congress. Though not a Senate staff member, Colonel Quinn, trained by Mary in the art of testifying before the Congress, orchestrated the hearings, set the agenda, and selected the people who would testify.

Washington Post: 9 December 1969;  Citizens Committee for the Conquest of Cancer. 

The Nixon administration did not immediately embrace the bill as he wasn’t thrilled by Edward Kennedy’s involvement. Being Ted Kennedy’s close friend, Mary asked him to withdraw as a sponsor. Under Senator Pete Domenici, the bill renamed the National Cancer Act had to pass in the House. Paul Rogers, who headed the House Health subcommittee—Colonel Quinn and Mary Lasker had no influence over him—objected to removing the NCI from the NIH umbrella. He cautioned the NIH would face similar threats of separation in other disease areas. A revised bill agreed to this demand and kept the NCI under the NIH but gave it a separate budget and a director appointed by the President. 

https://ascopost.com/issues/may-25-2021/how-the-national-cancer-act-of-1971-revolutionized-cancer-care-and-what-lies-ahead/

On December 23, 1971— fifty years to this day—the National Cancer Act was signed as a Christmas gift to the nation by President Richard Nixon, two years after Colonel Luke Quinn walked into the NCI with a wrong diagnosis. Though Quinn ultimately died of his relapsed cancer, a few months after the signing of the Cancer Act, the war on cancer had commenced with cancer research on the fast track. It was a victory for Mary Lasker, perhaps the most effective advocate for biomedical research that Washington had ever seen.

WASHINGTON: March 12 —Luke C. Quinn:au, a Capitol Hill spokesman, for the American Cancer Society, died of the disease yesterday in the National Institutes of Health

In hindsight, Mary Lasker’s triumph came with two significant disappointments. First, her crusade had failed in transferring the authority for approval of anticancer drugs from the FDA to the NCI—a failure that would plague the National Cancer Program well into the future. Second, the premise of the National Cancer Act that the “basic science was already there” and a quantitative boost in resources was all that was needed to bring victory was flawed. In combination, the two disappointments—the subjects of a future blog post—have spotlighted a perceived progress gap in cancer research by the tax-paying general public rather than underlining the tremendous conceptual progress made due to the War on Cancer. 

A dividing breast cancer cell.
Credit: National Cancer Institute / Univ. of Pittsburgh Cancer Institute

Ultimately, this blog is for you to appreciate the 50th anniversary of the lucky accidents and the incredible effort in creating the National Cancer Act. At the same time, personally, cancer researchers—the boots on the ground—like me who experience the non-triviality of progress in cancer will dwell on the insistence of simplistic linear views of progress in cancer research for public consumption.

A Liberal View on Trade and Development

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)

“Libertarianism and international violence”

An oldie but goodie from RJ Rummel:

Based on theory and previous results, three hypotheses are posed:

1. Libertarian states have no violence between themselves.

2. The more libertarian two states, the less their mutual violence.

3. The more libertarian a state, the less its foreign violence.

These hypotheses are statistically tested against scaled data on all reported international conflict for 1976 to 1980; and where appropriate, against a list of wars from 1816 to 1974, and of threats and use of force from 1945 to 1965. The three hypotheses are found highly significant. Tests were also made for contiguity as an intervening variable and were negative. Finally, two definitions of “libertarian” are tested, one involving civil liberties plus political rights, the other adding in economic freedom. Both are highly positive, but economic freedom is also found to make a significant added reduction in the level of violence for a state overall or between particular states.

Here’s the link, and this turned into an article in Journal for Conflict Resolution. I think he’s wrong. I think it’s a shame that this argument is cited as an example of libertarian thought in international relations, or at least that it’s still cited as The Libertarian Example. It was good when it came out during the Cold War (in 1983). But it’s soooo Westphalian. Trying to bring Philadelphian sovereignty back into the picture is a tough slog.

Immigration in the Time of Joe Biden: What to Do (Part 2 of 11)

Does America Need Immigrants?

By way of honest introduction, let me say that I think American society needs immigrants. I also think it will draw them either through an orderly process or through a disorderly one. Two big reasons US society needs immigrants. (There are other reasons.) First we have chronically unmet labor needs. As I write, more than a year into the pandemic, the unemployment rate of 6.2 is unusually high (not very high) as compared to mean unemployment for the past 70 years. Yet, many jobs are going unfilled according to newspapers, national and local, and to other media, including Fox News, repeatedly. I know the overgenerous subsidization of unemployment during COVID plays a role in the lack of responsiveness to job offers. I don’t think it explains everything, especially toward the top of the income structure and also toward the bottom where many just don’t qualify for benefits.

The second reason American society needs immigrants is that it is aging fast. It’s aging fast enough to threaten the future viability of such essential social programs as Social Security and Medicare unless we have an unprecedented rise in per worker productivity (which is not out of the question given fast technical progress, and a greater acceptance of artificial intelligence and of robotization). The bad news is that the current mean number of children per US woman (including permanent immigrants with a superior fertility) is only 1.7. That’s much below the generally recognized replacement rate of 2.1. If current trends continue, we will be seeing dwindling numbers of physically active younger people struggling to support a growing population of old people. (Current trends do not have to continue, I know.) I realize that there are solutions to this problem other than immigration including making many or all work latter into their lives, or even earlier. Still immigration looks like the quickest solution. In the short term, its concreteness, its immediacy, makes this solution pretty much irresistible. One more reason to think it through.

[Editor’s note: this is Part 2 of an 11-part essay. You can read Part 1 here, or read the essay in its entirety here.]

Immigration in the Time of Joe Biden: What to Do (Part 1 of 11)

Mike B., a Facebook friend and an immigrant like me, invited me to give my views about what should be the US immigration policy. I can only do a little here but, it’s worth the effort. Let me point out first that I have a fairly up-to date, reasoned description of American legal immigration (legal) posted here. I mention this because I have learned through the social media and also, by watching Fox News, that American conservatives are often ill-informed about the relevant laws and facts. I will pretend below that I have been selected by a Republican partisan Congressional commission to make immigration policy recommendations (unfortunately, on a pro bono basis). Below are some disparate thoughts on the topic. (I am not worried because the competition appears to be today sparse and shallow.) Here they are, more or less in order of priority.

Lightly Rethinking the Main Issues

First things first. Hardly a day goes by when I don’t hear a fellow conservative, a local or a national pundit, even a Congressperson, declaring directly or by implication, that there are proper, legitimate, legal ways to emigrate to the US that contrast with the illegal kind. That’s mostly not true. There is nearly zero way for the average unmarried Mexican, for example, to move to the US. It’s not a racial issue: The average Norwegian is even less likely to be able to do so. (See my longform essay here at NOL for a classification of different kinds of admissions.) Incidentally, an unmarried Mexican has a better chance because one quick way to be admitted is to marry a US citizen. (Has to be a real marriage. You may be fined for not sleeping in the same bed as your supposed spouse!)

Next, two changes in our collective ways of thinking about it must precede any significant reform of our immigration system, I believe. First, Americans, and especially, their lawmakers, must free themselves from an important conceptual confusion that’s obvious in the public discourse. It’s about the relationships between American society and potential immigrants. We must remember to distinguish clearly between immigrants we want to come in and immigrants who want to come in. The two categories should be treated differently as a matter of policy. The fact that there is always some overlap between the two – there are foreigners who want to join us that we would like to have – does not change this fact. Ignoring the distinction causes us too often to treat the ones with more sympathy than is warranted, and the others insultingly. It muddles our thinking.

Put another way: We should respond differently to the same 26-year- old male stranger in the strength of his age with no English when we think he has come to eat from our plate and when he is the guy who arrived to move the truck parked across our driveway.

Secondly, it’s useful to frame the problems (plural) that immigration poses as a balancing act between our economic and other societal needs (think bilingual au pair girls), on the one hand, and the requirements of sovereignty, on the other. The first force opens doors, the second tends to close them. At any rate, there are doors. Doors can be shut or open; there is nothing in-between.

[Editor’s note: this is the first part in an 11-part essay. You can read the essay in its entirety here.]

Transaction Costs are Injustice

Every Law Professor: ‘what is justice?’

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

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

The Via Negativa

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

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

Transaction Costs are Injustice

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

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

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

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

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

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

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

The Lazy Counter: justice takes time!

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

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

Is “justice” trying to do too much?

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

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

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

The elites-for-the-people against the people

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

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

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

Invasiveness is Injustice

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

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

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

Julian Simon’s life against the grain

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!

Former president Lula out of jail… again

Former Brazilian president Luiz Inácio Lula da Silva is currently considered innocent and can run for president in 2022 if he wishes. Lula was arrested in April 2018 under Operation Car Wash, conducted by judge Sérgio Moro in the Brazilian southern city of Curitiba, in the state of Paraná. In November 2019, the Supreme Federal Court ruled that incarcerations with pending appeals were unlawful and Lula was released from prison as a result. Yesterday, March 8, 2021, the Supreme Court Justice Edson Fachin ruled that all Lula’s convictions must be nullified because Lula was tried by a court that did not have proper jurisdiction over his case. This is so complicated that I had to check in Wikipedia to make sure I’m getting the basic facts straight.

Now I wonder: what changed between April 2018 and November 2019? And what changed yesterday? Don’t know! Was Lula illegally arrested in April 2018? What kind of country is this, in which people are arrested unlawfully?! Why it took Edson Fachin almost three years to realize that Sérgio Moro had no jurisdiction in this case?! Is Brazilian law really so complicated that it takes even to a supreme court judge three years to realize that something is wrong? What is going to happen to Lula now? After all, he was in jail unlawfully for more than a year! But mind this: Edson Fachin didn’t say that Lula is innocent! He said that Sérgio Moro had no jurisdiction to judge him. Theoretically, Lula can be judged by a new court, with the same proofs, and be condemned… again. You know, Seinfeld was right:

“What are lawyers, really? To me a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has read the inside of the top of the box. I think one of the fun things for them is to say, ‘objection.’ ‘Objection! Objection, Your Honor.’ Objection, of course, is the adult version of, ‘’fraid not.’ To which the judge can say two things, he can say, ‘overruled’ which is the adult version of ‘’fraid so,’ or he could say, ‘sustained,’ which is the adult version of ‘Duh.’”

I’m afraid that in the case of Brazil, if the supreme court judges don’t quite understand the rules of the game, neither can I.

Does federation unite or divide?

I am reading a lot on federation lately, for an article I would like to contribute to Brandon’s special issue of Cosmos + Taxis. I am going back to the debate about federalizing (parts of the) the democratic world which was very lively in the 1930s and 1940s. Reading the texts, for example the best-selling Union Now! (1939) by American journalist Clarence Streit, you can feel the scare for the authoritarian rulers and their nationalistic and militaristic policies. As an anti-dote, Streit proposed the federation of all the grown democracies in the world at that time, 15 in total, spread over the globe. This Union of the North Atlantic had to include a union citizenship, a union defense force, a union customs-free economy, union money and union postal and communications system After the war broke out, Streit published a new version, now calling for a union between Britain and the USA. Needless to say, none of these or other proposals went anywhere. Still some interesting perpetual questions remain.

Ludwig von Mises and Friedrich Hayek also wrote on federation during this period, as I described in Classical Liberalism and International Relations Theory (2009). I now went back to their writings, which is a treat. It is nice to have a fresh look, I also have deeper insights now (at least – I think!) than I had about 15 years ago when first encountering these ideas.

One of the divides between Mises and Hayek (which they never openly discussed, as far as I am aware) revolved around the alleged pacifying effect of federations. Mises made the point that joining a federation would lead to a larger loss of sovereignty than was normally conceived in the debate. It was not just about pooling some powers at the federal level. In an interventionist world, Mises argued, the number of policies that are dealt with from the center, or the capitol, continually rise. After all, the call for intervention will be made from all corners of the federation, all the time. This leads to a call for equal treatment, which in turn lead to a larger number of policies and regulations administered from the capitol. Consequently, the member states increasingly lose sovereignty and eventually end up as mere provinces. This would be a new cause of division, especially when the member states of the new federation used to be powerful countries on their own. Hence, a federation divides, not unites. Therefore, he proposed a much more radical solution in his plan for Eastern Europe: no federation but a strict central union (administered by foreigners, in a foreign language he even once suggested) where the members would basically have no say at all over all the important legislation normally associated with sovereignty. The laws and regulations would be limited, ensuring maximum economic and political freedom for the individual citizen.

This blog is not meant to discuss the merits of Mises’ ideas. It solely aims to point at a division between Mises and Hayek. Hayek, and most thinkers on federation with him, Streit included, had different expectations about the political effects of federation. They expected that federation would be a force of unity.  In a federation you arrange the most difficult and divisive policies at the center (for example defense, foreign policy and foreign trade), while leaving all other policies to the constituent parts. This allows room for different policies in those states, while taking away their instruments to start violent conflict. Yes, this would mean less sovereignty, but also less trouble, while the freedom within the federation still ensured as much or as little additional policies as the individual states see fit. Hayek would favor his idea the rest of his life, also proposing it for the Middle East, for example.  

Who was right? That is impossible to say, I think. There are elements of both Misesian and Hayekian arguments in the real-life experiences of federations around the globe. For some it is indeed a good way to pool the core of sovereignty, while remaining as diverse as possible. Although most them do not disintegrate with violent conflict, the increase of all kind of policies at the federal center has certainly happened. However, this is not unique to federations and most importantly, it is not a question of formal legal organization. It is a question of mentality of both politicians and populations. This is another reason to keep fighting ‘the war of ideas’, because ideas have the power to change societies.

John Rawls at 100

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.