Afternoon Tea: “Albert Venn Dicey and the Constitutional Theory of Empire”

Brandon Christensen History, Law, Links , , , , , ,

In the post-1945 world, constitutionalism has transcended the nation-state, with an array of transnational arrangements now manifesting constitutional characteristics — so says a growing number of scholars. This paper reveals an earlier but largely forgotten discourse of transnational constitutionalism: the constitutional theory of the British Empire in the late-nineteenth and early twentieth centuries. Focusing on the work of Albert Venn Dicey, the paper shows that, when the Empire was at the height of its power and prestige, British constitutional scholars came to see the Empire as a constitutional order and project. For Dicey, a committed constitutionalist and imperialist, the central dynamic of the imperial constitutional order was balancing British constitutional principles with imperial unity. This paper focuses in particular on parliamentary sovereignty, a constitutional principle that for Dicey was both necessary for and dangerous to the Empire’s integrity. An exercise in intellectual history, the paper rethinks Dicey’s work and the constitutional tradition in which Dicey has played such an integral part, seeking to bring empire back into the picture.

This is from Dylan Lino, a legal theorist at the University of Western Australia’s Law School. Here is the link.

Nightcap

Brandon Christensen Links , , ,
  1. The day MIT won the Harvard-Yale game Kyle Bonagura, ESPN
  2. The short, brutish career of the Lion of Punjab Robert Carver, Spectator
  3. The idea of a borderless world Achille Mbembe, Africa is a Country
  4. Organised crime and oligarchy in Putin’s Russia Louise Shelley, War on the Rocks

Nightcap

Brandon Christensen Links , , ,
  1. Knowledge gave rise to, and empowered, the State Peter Burke, History Today
  2. Why not a Palestinian Singapore? Michel Kochin, Claremont Review of Books
  3. Jacques Derrida and the problems of presence Derek Attridge, Footnotes to Plato
  4. An argument against world government Robin Hanson, Overcoming Bias

NOL’s newest feature: the Longform Essays

Brandon Christensen Liberty, Links , , , , , ,

I want to quickly direct your attention to NOL‘s newest feature, the Longform Essays. In them you will find all of the n-part series that the Notewriters have done over the years, but they’ve been put together (by yours truly) into one long essay, for your convenience.

It’s still a work in progress. Jacques’ essays are done. Mary’s four-part essay on The State and education is finished, too. I am slowly, but surely, working on Barry’s and Rick’s essays.

Enjoy!

Nightcap

Brandon Christensen Links , , ,
  1. Why the left needs “bottom” Chris Dillow, Stumbling & Mumbling
  2. How Adam Smith proposed to have his cake and eat it too Branko Milanovic, globalinequality
  3. Can relationship anarchy create a world without heartbreak? Sophie Hemery, Aeon
  4. The Lies We Were Told Simon Wren-Lewis, Mainly Macro

RCH: Vietnam War armistice, Southeast Asian kingdoms, and abolitionism in America

Brandon Christensen History, Links , , , , , , ,

I’ve been behind on links to my RealClearHistory columns. So, without further adieu:

and

Afternoon Tea: “The Johor-VOC Alliance and the Twelve Years Truce: Factionalism, Intrigue and International Diplomacy, C.1606-1613”

Brandon Christensen History , , , , , , ,

Using published and unpublished documents of Dutch, Portuguese and Malay provenance, the present study explores how news of the Twelve Years Truce in December 1609 negatively impacted politics and commerce at the court of the Kingdom of Johor. Since 1603, Johor had emerged as one of the principal allies of the Dutch East India Company (VOC) in the region of the Singapore and Melaka Straits, and after 1606 it had proven itself as a worthy ally in the company’s war on the Iberian powers across Southeast Asia. It will be argued that confusion resulting from the news of the truce on the ground in Asia exacerbated factionalism at the court. The Johor ruler, Ala’udin Ri’ayat Shah III, and especially his younger sibling Raja Bongsu, were incensed and evidently felt they had been left to carry on the struggle against Portuguese Melaka on their own. Unable to continue the war effort without Dutch funds, subsidies and ammunition, the pro-Portuguese faction at the Johor court brokered a peace with the Estado da Índia in October 1610. This deal led to the fall of Raja Bongsu and his pro-Dutch faction at the court. This essay provides the political and historical backdrop to the writing and revision of the Sejarah Melayu, or Malay Annals, in or around 1612.

This is from Peter Borschberg, a historian at the National University of Singapore. Here is a link.

Nightcap

Brandon Christensen Links , , ,
  1. The weaponization of Milton Friedman Shikha Dalmia, the Week
  2. Social media lessons Robin Hanson, Overcoming Bias
  3. Seneca on ‘mercy’ and ‘anger’ Barry Stocker, NOL
  4. Wisdom from Armen Alchian David Henderson, EconLog

Nightcap

Brandon Christensen Links , , ,
  1. Checks and Balances Jonathan Adler, Volokh Conspiracy
  2. Trump’s relationship with Fox News starts to show cracks Rebecca Morin, Politico
  3. Italy versus the EU (again) Alberto Mingardi, EconLog
  4. How technology and masturbation tamed the sexual revolution Ross Douthat, New York Times

Afternoon Tea: “English Liberties Outside England: Floors, Doors, Windows, and Ceilings in the Legal Architecture of Empire”

Brandon Christensen History , , , , ,

We tend to think of global migration and the problem of which legal rights people enjoy as they cross borders as modern phenomena. They are not. The question of emigrant rights was one of the foundational issues in what can be called the constitution of the English empire at the beginning of transatlantic colonization in the seventeenth century. This essay analyzes one strand of this constitutionalism, a strand captured by the resonant term, ‘the liberties and privileges of Englishmen’. Almost every colonial grant – whether corporate charter, royal charter, or proprietary grant – for roughly two dozen imagined, projected, failed, and realized overseas ventures contained a clause stating that the emigrants would enjoy the liberties, privileges and immunities of English subjects. The clause was not invented for transatlantic colonization. Instead, it had medieval roots. Accordingly, royal drafters, colonial grantees, and settlers penned and read these guarantees against the background of traditional interpretations about what they meant.

Soon, however, the language of English liberties and privileges escaped the founding documents, and contests over these keywords permeated legal debates on the meaning and effects of colonization. Just as the formula of English liberties and privileges became a cornerstone of England’s constitutional monarchy, it also became a foundation of the imperial constitution. As English people brought the formula west, they gave it new meanings, and then they returned with it to England and created entirely new problems.

This is from Daniel J. Hulsebosch, a historian at NYU’s Law School. Here is a link.

Legal Immigration Into the United States (Part 20): Transitional Measures and Conclusions

Jacques Delacroix Current Events , , , , , ,

We must recognize than any orderly system used to select and admit immigrants involves a degree of bureaucratic slowness. Hence, the existing family preference-based program would have to be extended for several years, maybe as long as ten, while accepting no more new applications. It’s likely that the compromise solution would even have to be some sort of measure that guarantees that the last direct descendants and direct ascendants of existing immigrants have been accommodated.

To remedy the labor rigidity consequent on the abolition of family preference as the primary source of admission, the US might re-instate a new version of the 1942-1964 bracero program. I refer to a system of admission of temporary contractual workers guaranteed a minimum wage and decent living conditions by employers for a stated period. Temporary immigrants admitted in this manner would have no expectation of permanent admission to the US. The problem of “stay-overs” could be solved through a conventional bonding system. (I am puzzled about why bonding has not yet been tried in connection to immigration.) The work sojourns would have to be made renewable in law so that the US might preserve the option of keeping temp. workers who had acquired valuable and rare skills during, or even before their first, or following stay in-country. In exceptional cases, temp. workers in such a program could be channeled to the new F-1B program, perhaps with credit given for experiences working in the US and for cultural adjustment.

Conclusions

In summary: I deplore two features of current public discussions of legal immigration: They are ill-informed to an astonishing degree; and, they are often crude, lacking in both subtlety and imagination, like an argument between two people who keep cutting each other off. Unless one formulates a systematic alternative to the current system, one squarely separating immigration based on altruism from merit-based immigration, immigration based on the expected immigrants contributions to American society, the helter-skelter liberal project will continue to prevail. It is now prevailing by default in the minds of  most Americans. Those who have the energy to resist it too often limit their response to a blind “No!”In the end,  if no countervailing project emerges forcefully, we will witness the establishment of a statist one-party system in the US. Libertarians, among others, should hurry to confront their close friends and relatives who toy with the dangerous delusion of open borders.

[Editor’s note: in case you missed it, here is Part 19; you can also read the entire essay at the “LongForm Essays” section of the blog.]

Nightcap

Brandon Christensen Links , , ,
  1. Plot 6, Row C, Grave 15 (the First World War) Malcolm Gaskill, London Review of Books
  2. Toyi-toyi Melissa Twigg, BBC
  3. Administrative Law Is Bunk. We Need a Bundesverwaltungsgericht Michael Greve, Liberty Forum
  4. Beer, and economic determinism Chris Dillow, Stumbling & Mumbling

Legal Immigration Into the United States (Part 19): How to Go About It

Jacques Delacroix Culture, Current Events , , , , , , , ,

Admitting immigrants legally for the benefit of American society need not be bureaucratically demanding. The existing H-1B visa program could fairly easily be turned into a merit system. It would require only minor tweaking. The main tweak would be to forbid or, at least, to restrict severely employers’ reliance on labor contractors through which most of the abuses occur, I believe. (See, for example, the infamous Disney case, described below.) Let each employer applying for such visas be squarely on record as vouching for the individual beneficiaries’ quality.

Following the example of Canada, some degree of priority could be assigned to obvious contributions to successful adaptation to American society, beginning with knowledge of English. (This might actually require a new law making English the official language of the US.) I listed above other examples of immigrants features that might be scored positively. Note again that avoiding the drawbacks of a completely relative-based system does not necessarily imply the rejection of the simple idea that having relatives in the country often facilitates adjustment. Within the framework of a H-1B-type point system, some degree of preference could be assigned to the fact that the beneficiary has relatives in the US close to where he will first settle. This would not be family re-unification under a different guise because family relations would be subordinate to work capabilities and other features facilitating adaptation.

The next necessary tweak has to do with the fact that the H-1B program has a bad reputation among the unemployed and  the uncertainly employed. So, in 2016, the Walt Disney company was sued, famously for having American workers train their F-1B visa replacements before they were laid off. The suit was dismissed by reason of what I think was a big loophole in the protective measures in favor of American workers in connection with the H-1B program. No one denied that Disney had done what it was accused to have done. Many believe furiously that the program actively discriminates against American workers and keeps their wages low. To make it more acceptable, the existing H-1B safeguards against noxious practices undermining the employment of the American-born and of legal resident immigrants would have to be widely publicized and remedies against abuses would have to be made judicially more accessible than they are now.

The American public would also have to be ready for the predictable consequences of merit policies in terms of culture and in terms of politics. The merit-based program I envisage would result quickly in a large increase in Indian immigration. Although Indians have been very good immigrants by most counts, there might be objections because nearly all of them seem to suck some form of leftism or other with their mother’s milk. In addition, and although India is often celebrated as the “world largest democracy,” there is some question about educated Indians’ attachment to the constituent forms of historically Western democracy, specifically. (I am a small-time expert on this because I read items in and through the Indian press and because I have Indian relatives. They are a tiny biased sample, of course but also an informational gateway of sorts. See also India-born commentator Jayant Bhandari in the October 5 2017 issue of Acting Man: “Canada: Risks of a Parliamentary Democracy.”)

This problem and others like it could be mitigated by placing a numerical ceiling on the total number of immigrants from any one country. I predict informally that this particular problem would turn out to be limited because, once the gates of legal immigration opened for real, there would be a sharp increase in applications from European countries with democratic systems similar to ours. This too would have consequences: As I have pointed out, by and large Europeans are not shy about using any form of welfare, broadly defined, including unemployment benefits. I note shyly that placing a ceiling on the contribution of any one nation-state to US immigration would seem “fair” to liberal opinion, making the whole project more acceptable than would otherwise be the case.

Incidentally, a reasonable merit-based system, aimed as it would at foreigners of some competence, might produce additional revenue to help defray both the cost of better enforcement of immigration laws, and the cost of caring for people admitted on altruistic grounds.

[Editor’s note: in case you missed it, here is Part 18]

Nightcap

Brandon Christensen Links , , ,
  1. Armistice Day John Quiggin, Crooked Timber
  2. The Second Hundred Years’ War Nick Nielsen, The View from Oregon
  3. When the World Tried to Outlaw War Stephen Wertheim, the Nation
  4. Blood, Oil, and Citizenship Kenan Malik, Guardian

The Negative Capability of a Good Legislator

Federico Sosa Valle Law, Philosophy , , , , , , ,

In a former post, we had explored the idea of considering the law as an abstract machine which provides its users with information about the correct expectancies about human conduct that, if fulfilled, would contribute to the social system inner stability (here). The specific characteristic of the law working as an abstract machine resides in its capability of dealing with an amount of information more complex than human minds. This thesis had been previously stated by Friedrich Hayek in his late work titled “Law, Legislation and Liberty”, aimed to provide the foundations to a proposal of an constitutional reform that would assure the separation of the law from politics -not in the sense of depriving politics from the rule of law, but to protect law from the interference of politics.

Paradoxically, the said opus had many unintended outcomes that surpassed the author’s foresight. One of them was the coinage of the notion of “Spontaneous Order”, which Hayek himself regretted about, because of the misleading sense of the word “spontaneous”. At the foreword of the third volume of the cited “Law, Legislation and Liberty”, he explained why he would prefer to use of the term of “Abstract Order”. Notwithstanding its creator’s allegations, the label of “Spontaneous Order” gained autonomy from him in the realm of the ideas (for example, here).

Why better “abstract order” than “spontaneous”? Because while no “concrete order” might be spontaneous, we could nevertheless find normative systems created by human decision, besides the spontaneous ones (see “Law, Legislation and Liberty”, Chapter V). Moreover, we do not see spontaneous orders whose rules fail to provide stability to the system, because of “evolutionary matters”: such orders could not endure the test of time. Nevertheless, for the same reason, we could imagine a spontaneous order whose rules of conduct became obsolete due to a change in the environment and, thus, fails to enable the social system with the needed stability.

Spontaneity is, thus, not the central characteristic of the law as a complex order. What delimits law from a “concrete order” is the level of abstraction. An alternative name given by Hayek to designate the concrete orders was the Greek term “taxis”, a disposition of soldiers for battle commanded by the single voice of the general. Concrete orders could be fully understood by the human mind and that is why they are regarded as “simple phenomena”: the whole outcome of their rules could be predicted by a system of equations simpler than the human mind.

Notwithstanding a single legislator could sanction a complete set of rules to be followed by the members of a given society, the inner system of decision making of those individuals are more abstract that the said set of rules and, thus, the human interactions will always result in some subset of unintended consequences.

These unintended consequences should not necessarily be regarded as deviations from the social order, but indeed as factors of stabilisation -and, thus, all abstract orders are, in some sense, still spontaneous. These characteristics of the law as a complex order concern on the information about the final configuration of a society given a certain institutional frame: we can establish the whole set of institutions but never fully predict its final outcome. At this stage, we reach what Hayek called in The Sensory Order “an absolute limit to knowledge”.

We now see that the legislator could sanction a complete system of rules -a system that provides solutions for every possible concrete controversy between at least two contenders-, but he is unable to be aware of the full set of consequences of that set of rules. We might ascertain, then, that being enabled with a “negative capability” to anticipate the outcome of the law as a complex phenomenon is a quality to be demanded to a good legislator.

By this “negative capability” we want to designate some understanding of the human nature that allows to anticipate the impact of a given norm among the human interactions. For example, simple statements about human nature such as “people respond to incentives”, or “all powers tend to be abusive”. These notions that are not theoretical but incompletely explained assumptions about human nature are well known in the arts and literature and constitute the undertow of the main narratives that remain mostly inarticulate.

Precisely, as Hayek stated, every abstract order rests upon a series of inarticulate rules, some of which might be discovered and  later articulated by the judges, while other rules would remain inarticulate despite being elements of the normative system.

However, we praise Negative Capability as a virtue to be cultivated by the legislator, not by the judge. The function of the judge is to decide about the actual content of the law when applied to a particular case. It is the legislator the one who should foresee the influence to be exerted by the law upon a general pattern of human behaviour.

Notwithstanding Negative Capability could be dismissed in order of not being a scientific concept, this negative attribute is one of its main virtues: it means lack of ideology, in the sense given to that term by Kenneth Minogue. While an ideological political discourse reassures itself in a notion of scientific truth, at least a legislator inspired by common and humble ideas about human nature would be free from that “pretence of knowledge”.