Immigration in the Time of Joe Biden: What to Do (Part 3 of 11)

Numbers Matter

Numbers have a way of sobering the imagination while dispelling some absurd beliefs. In 2016, about 1,200,00 people were admitted into the US. (Some had been physically in the country for a long time, due to technicalities not worth discussing here.) This is all about being a legal immigrant. If there were only 200 annual candidates to admission to the US, for example, no one would be speaking about immigration. But the figure of legal admissions has been consistently over one million in past years, with many candidates rejected. The proportion of the population born abroad is currently as high, – or as low – as it has ever been, somewhat under 15%. Many people, especially conservatives, vaguely feel that it’s too many. (The fact that many of those tell themselves fairy tales about the quality of past immigration in contrast to current immigration makes matters worse, of course. This is another story, something we can talk about if anyone asks.)

Quantitative limitations on immigration ought to be subject to cold- blooded assessments. First, there must be a mental recognition that the world’s misery is immense and that the US cannot take care of all of it however much Americans would like to. (Personally, I think it’s honorable for us Americans to take charge of our share of misery and of a little more than our share; it’s good for our collective soul and we can afford it.) Second, as I will explain below, the numbers of immigrants we agree to accept for reasons of either the mind (those we want) or the heart (those who want us) are subject to a near automatic multiplier. I explain this [here] under: “The Family Multiplier:….”

[Editor’s note: this is Part 3 of an 11-part essay. You can read Part 2 here, or read the essay in its entirety here.]

Biden’s Summit on Climate and Xi’s Belt and Road Initiative

Introduction 

US President Joe Biden hosted a Summit on Climate (April 22-23, 2021) which was attended by 40 world leaders, including Chinese President Xi Jinping. Ever since taking over as President, Biden has sent out a strong message that the US would take a leadership role as far as climate issues are concerned. During his address at the Summit, the US President also dubbed this decade as decisive. Said Biden: 

Scientists tell us that this is the decisive decade – this is the decade we must make decisions that will avoid the worst consequences of the climate crisis. 

Under the Trump Administration, the US had withdrawn from the Paris Agreement, while one of Biden’s first steps was getting the US to re-join the Paris Agreement, and he has also made a commitment of $1.2 billion to a Green Climate Fund.  Another important component of Biden’s climate change agenda includes an infrastructural package, which seeks to invest in clean energy transition. The Biden Administration has also been laying emphasis on creating clean energy jobs, and greater investment in Research and Development (R and D) related to clean energy. 

US-China scope for cooperation? 

While ties between US and China have witnessed a serious deterioration in recent weeks, Chinese President Xi Jinping attended the Climate Change Summit. Days before the Climate Summit, Xi, while addressing the Boao Forum at Hainan, was critical of the US for promoting a cold war mentality, but did clearly leave the door open for cooperation with the US in dealing with common challenges posed by climate change.

In spite of the downward spiral in bilateral relations, Biden and members of his administration have also repeatedly stated that there is scope for the US and China to work together.

Biden’s Climate Change envoy, John Kerry, had visited China earlier this month, and during the course of his trip exchanged notes with China’s special envoy for climate change, Xie Zhenhua. A joint statement released by both sides stated

The United States and China are committed to cooperating with each other and with other countries to tackle the climate crisis, which must be addressed with the seriousness and urgency that it demands,

An invitation to Chinese President Xi Jinping to attend the Summit was extended during Kerry’s visit, though China did not give any confirmation (Xi gave his confirmation to attend the Summit one day before).

Agenda of the Summit

During the summit, the US President made a commitment that US would reduce its greenhouse gas emissions by around 50% below its 2005 emissions levels, by 2030. (Former US President Barack Obama had made a commitment to reducing emissions around 26-28% by 2025.) Biden’s announcement has been hailed by some, and being cited as a reiteration of the point that Biden wants to show the way on climate change. Biden’s announcement may be opposed by certain quarters within the US who feel that the US should not be compelled to reduce emissions drastically.

Before the Summit, China had made it clear that it would not toe the US line. During John Kerry’s China visit the Chinese Vice Foreign Minister, Le Yusheng, said:  

Some countries are asking China to achieve the goals earlier. I am afraid this is not very realistic.

While addressing the summit, Chinese President Xi Jinping reiterated a commitment he had made last year while addressing the United Nations General Assembly (UNGA): that China would achieve carbon neutrality by 2060, and to peak carbon emissions by 2030. He reiterated the need for global cooperation. 

How Biden and Xi linked their commitment to environment with their economic visions 

What was interesting was that both Biden and Xi Jinping also linked the climate goals to their economic goals. Xi Jinping spoke about a focus on a ‘green’ Belt and Road Initiative (BRI). Interestingly, the mega connectivity project, often dubbed as China’s ‘Marshall Plan,’ has often been criticised not just for its lack of transparency, but also for the fact that it is not environmentally friendly (in fact many observers have argued that Biden’s infrastructural plan is a counter to China’s BRI).

Biden has repeatedly spoken about creating clean jobs and infrastructure and repeated the same during his address. 

Conclusion

In conclusion, while Washington-Beijing ties are likely to face numerous strains, climate change seems to be one area where there is space for cooperation between the two. While the US under Biden is likely to follow a significantly different approach from that under Trump, China is unlikely to budge from its commitments. What would be interesting to see is whether Beijing actually addresses criticisms of the BRI not being environmentally friendly. While China and the US may find some common ground on climate change, it is likely that the Biden administration, given its focus on the environment, may come down more harshly on the BRI and may come up with an alternative.

Some Monday Links

Ayn Rand, Live from Los Angeles (Los Angeles Review of Books)

Appropriation artists (VOXEU)

Adding is favored over subtracting in problem solving (Nature)

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.]

What is “old?”: Middle-class pretensions

Recently to improve my German, I began viewing a soap opera titled Altes Geld (Old Money). The series was so bad, I stopped watching halfway through the first season. The show follows a super-rich family as they move from travesty to depravity and back. While the characters are presented as an old, established family, in truth they aren’t. The family made their fortune by collaborating with the Nazis. At the time the show aired, their fortune would have been only seventy years old. As a friend of mine said in response to the premise, “that isn’t old money—just an old way of making it,” meaning crony capitalism and opportunism, not siding with the Nazis. Despite my reaction to the series and its anti-rich message, it did make me think about what is “old” and what this means in the sense of legacy or tradition in a society, which in my view is turning increasingly toward fictions as part of a nostalgic utopian vision.

The so-called patriarch in the tv series pontificates on familial tradition and the way things have always been done. As they are a new family, I’m fairly certain the patriarch’s monologues are satirical; after all the family isn’t old enough to have any real traditions and the way they’ve done things is certainly not to be emulated. Yet, an attitude, a posturing of being people who know things, have tried-and-true ways of doing things which is (probably) satire on a soap opera appears in real life as a trope, repeated with gravity by public figures, often in the context of a “decline of the middle-class.”

A common feature in the declinist narrative is a supposed failure of public, or in American English, state schooling systems. Attached is an implicit or explicit middle-class proclamation of “this is the way we’ve always done things,” a claim which is taken at face value by both speakers and audience. Yet, it isn’t. At best, the “middle-class way” dates to post-World War II, much like the ersatz old family and their traditions in Altes Geld.

Anecdotally, I know one arch-Conservative who is devoted to the declinist narrative, particularly in relation to public education. He is a first generation public schooler. His own parents, who were of the War generation, attended private religious schools. Lest readers misinterpret the religious aspect, pre-World War II, private schooling offered by religious institutions was often the only option for children whose parents were of modest means but who wanted something better than a local state school.

The arch-Conservative’s parents were part of a phenomenon discussed by David Willett in his book The Pinch: How the Baby Boomers Took Their Children’s Future – And Why They Should Give It Back. Willett, who always has to issue a disclaimer that he is a boomer himself, talks about how the boomers were betrayed by the War generation as they were the ones who, for the first time in recorded human history, stopped putting the next generation first in that they stopped trying to find the best educations for the boomers. People who in previous generations would have sent their children to private schools, and who themselves had usually benefited from attending such schools, sent their children (the boomers) to public school instead. Willett argues that the boomers themselves were the victims of intergenerational theft; their crime was perpetuating it on their children, through repeating the patterns of their own parents.

Although Willett limited his study to Great Britain as that is his area of expertise, I can anecdotally say that a similar phenomenon occurred in the US. My grandfather was a boarding school boy, kept there at great expense and effort on the part of his coal miner father who wanted something better for his son. My grandfather, who fulfilled on his father’s dreams (graduate degrees from good universities, Naval commander, successful business owner) though, did not repeat the pattern exactly and his children attended (initially) an absolutely rubbish public school. If there was any logic to that decision, it was “that’s the way things are,” though he of all people should have known that there was no need for deterministic attitudes. To repeat: both coal miner’s son and boarding school boy – during the Great Depression!

Returning to the first-generation state schooler, his children are second-generation public schoolers, and he complains about how expectations for them have not matched reality—an infallible sign of decline. But the chasm between expectation and reality is society’s fault, in his declinist narrative. That his own parents betrayed him and he then foisted that betrayal on his children is not a factor. No, public school is a “tradition” in his family. Yes, in the same way a new money family whose fortune is not even a century old can have traditions.

The gulf between the pre-War and the War generations did not occur in a vacuum. To close, I ask the reader to contemplate the following paragraph from Virginia Woolf’s speech “The Leaning Tower,” which she, a devoted Marxist, gave in 1940 to the Workers’ Educational Association:

(NB: Virginia Woolf used the term “public school” to signify old, private preparatory boarding schools, not state schools in the American sense.)

There are two reasons which lead us to think, perhaps to hope, that the world after the war will be a world without classes or towers. Every politician who has made a speech since September 1939 has ended with a peroration in which he has said that we are not fighting this war for conquest; but to bring about a new order in Europe. In that order, they tell us, we are all to have equal opportunities, equal chances of developing whatever gifts we may possess. That is one reason why, if they mean what they say, and can effect it, classes and towers will disappear. The other reason is given by the income tax. The income tax is already doing in its own way what the politicians are hoping to do in theirs. The income tax is saying to middle-class parents: You cannot afford to send your sons to public schools any longer; you must send them to the elementary schools. One of these parents wrote to the New Statesman a week or two ago. Her little boy, who was to have gone to Winchester, had been taken away from his elementary school and sent to the village school. “He has never been happier in his life”, she wrote. “The question of class does not arise; he is merely interested to find how many different kinds of people there are in the world…” And she is only paying twopence-halfpenny a week for that happiness and instruction instead of 35 guineas a term and extras. If the pressure of the income tax continues, classes will disappear. There will be no more upper classes; middle classes; lower classes. All classes will be merged in one class. How will that change affect the writer who sits at his desk looking at human life? It will not be divided by hedges any more. Very likely that will be the end of the novel, as we know it. Literature, as we know it, is always ending, and beginning again. Remove the hedges from Jane Austen’s world, from Trollope’s world, and how much of their comedy and tragedy would remain? We shall regret our Jane Austens and our Trollopes; they gave us comedy, tragedy, and beauty. But much of that old-class literature was very petty; very false; very dull. Much is already unreadable. The novel of a classless and towerless world should be a better novel than the old novel. The novelist will have more interesting people to describe—people who have had a chance to develop their humour, their gifts, their tastes; real people, not people cramped and squashed into featureless masses by hedges. The poet’s gain is less obvious; for he has been less under the dominion of hedges. But he should gain words; when we have pooled all the different dialects, the clipped and cabined vocabulary which is all that he uses now should be enriched. Further, there might then be a common belief which he could accept, and thus shift from his shoulders the burden of didacticism, of propaganda. These then are a few reasons, hastily snatched, why we can look forward hopefully to a stronger, a more varied literature in the classless and towerless society of the future.

A classless society built on betrayal of the futures of the young generations and treachery toward the sacrifices of the pre-World War II generation, that is the “tradition” of the modern middle-class. Their society is not even a century old, but it is already presented as a utopia of stability and homogeneity. It is time to recognize it for what it is: an ill-informed charlatan aping both the mannerisms of true tradition and the honor and dignity that come with it, while proclaiming itself the epitome of a classless society.   

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.

Monday’s hints and suggestions, rumors and hunches

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

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

The 1st American edition – source

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

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

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

The trolley problem problem (Aeon)

Organizations and Markets (Journal of Economic Perspectives)

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

Prospectus On Próspera (Astal Codex Ten)

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

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

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

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

Ideology in Bioshock: A Critical Analysis (Press Start)

Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 12 of 12)

Conclusions

To a large extent, the deficiencies in the application of legal norms were usually attributed to cultural issues related to a low level of regulatory compliance by the population because the first of the concepts – that of normative application – is extremely elusive when it comes to categorize it as a matter of law or politics. As has been pointed out, the law enforcement fulfills a function similar to that of the logical figure described by Ludwig Wittgenstein in his Tractatus Logico-Philosophicus: it does not fully belong to one or the other discipline, but rather marks the contours that they limit each other. The law enforcement depends on a political decision, but such a political decision makes up the defining characteristics of a political regime: Rule of Law or Rule by Law. Systems that have a low regulatory application give governments too wide a margin of excessive discretion to selectively apply the law, without respecting the principle of equality of the law and with the purpose of persecuting dissidents and opponents, which results characteristic of authoritarian and totalitarian regimes.

On the other hand, although it concerns an eminently legal field of action, the dynamics of the incentives generated by a low regulatory application prevent it from being increased by intra-legal mechanisms. This is because, in general, a low level of regulatory application is accompanied by relatively high penalties, so that the activation of judicial mechanisms aimed at achieving a higher level of law enforcements by officials leads to the generalization of sanctions disproportionate to the protected legal assets.

Therefore, the solution to such problems of normative application does not depend on the judicial system, but on its political processing through the legislative branch, since, to get out of the trap in which the political system is involved, in addition to increasing the provision of resources destined to ensure compliance with the law, the penalties provided should be reduced in order to function with a lower degree of application.

A good example of this could be the reduction of taxes in a framework of high tax evasion, which can be proposed by virtue of principles of equity and which can also be aimed at achieving higher tax collection. This last aspect is of particular relevance when considering the political incentives to proceed with the aforementioned reform. This is because, as has been stated, any increase in the law enforcement implies a reduction in the level of discretionary exercise of power, that is, a greater limitation of the power of governments.

In this last aspect, the political action to be deployed in the legislative chambers once again takes on importance, since such reductions in the levels of discretion can only be obtained thanks to the exchange of laws that characterizes all legislative work.

Finally, it should be noted that, if what is sought is a higher level of law enforcement in order to limit the discretion of the executive branch, then the most effective strategy will be to demand a reduction in the levels of taxes, penalties and fines, since this will serve as an incentive so that, in order to maintain the previous level of social control, to proceed, in view of the reduction of penalties, to raise the levels of law enforcement, thus generating a virtuous circle according to which the rates of spontaneous regulatory compliance by the population.

Such a political strategy is entirely consistent with the notion of every constitutionally limited government and every free society, according to which each citizen must enjoy the widest sphere of individual autonomy. Likewise, the results to be obtained in this way contribute to materialize the ideal of individual freedom understood as the absence of arbitrary coercion, since this depends in a singular measure on the characteristics of the legal system and its enforcement by public authorities.

However, as was duly stated, when a political legal regime has deficient levels of law enforcement, it is positively fed back adding a low rate of regulatory compliance by the population, thus worsening in a process of incessant deterioration. Consequently, those objectives of institutional improvement can rarely be achieved without political determination on the part of citizens committed to defending their freedoms.

[Editor’s note: this is Part 12 in a 12-part essay; you can read Part 11 here or read the essay in its entirety here.]

Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 11 of 12)

In the case of judicial decisions based on reasons of justice and equity, it must be taken into account that, although the substantive law in these cases is set aside, the other procedures informed by the principles of due process are respected: the law to be heard, to offer evidence and supervise its production and to access an impartial tribunal, among others. Likewise, so that the judicial resolution based on equity is not arbitrary, it must also configure a judicial precedent and it must not be contradictory with other judicial precedents, since, if the courts depart from the substantive law in order to attend to the special circumstances of the case, they should resolve in the same way before similar cases in which the same circumstances that motivated a resolution for equity have been or were presented.

With respect to the cases in which the law itself grants a public administration official a certain scope of discretion on a given matter, it should be noted that said powers do not violate higher-ranking norms, such as constitutional rights and guarantees. A public official has an indisputable margin of discretion to decide what color to paint the building of the body under his direction and, if he does it with too strident color, in any case he will incur not a legal responsibility but another of strict order. political, according to which a higher-ranking official shall proceed to exercise his respective discretionary powers to remove him from his functions.

Outside of these specific cases, it is expected that in the Rule of Law system all decisions, both governmental and judicial, will be taken based on rules that are intended to limit the arbitrariness of those. This limitation allows individuals to conform their expectations regarding the expected behavior of other individuals and of the powers of the state themselves and, in such a way, to devise their life plan and coordinate it with the plans of their fellow human beings. Such a legal system demarcates the spheres of individual autonomy, within which each person should not be accountable to anyone, except to their conscience, and provides for a conflict resolution system for the eventuality that a dispute arises between individuals or between individuals. and the state. Such controversy does not necessarily have to consist of a violation of the norm, but it can also come from an interpretative disagreement between the parties who are convinced that they are acting according to the law but who, nevertheless, reach conflicting decisions.

In such a system of dispute resolution, based on legal norms known to all, be they written or customary, arbitrariness is reduced to cases of judicial error – generating natural obligations, that is, of mere moral compliance. Consequently, a system of administrative and judicial decisions based on rules contributes to materializing the ideal of respect for individual freedom, understood as the absence of arbitrary coercion.

Therefore, it is understood how the low law enforcement by the public powers, which generates incentives for systematic legal non-compliance by individuals and, likewise, grants a wide margin of discretion to those public powers to carry out a whimsical law enforcement, implies a real change of political regime.

[Editor’s note: this is Part 11 in a 12-part essay; you can read Part 10 here or read the essay in its entirety here.]

Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 10 of 12)

However, theorizing about law enforcement takes on vital importance when it comes to considering whether a low level of law enforcement denatures the Rule of Law in such a way that it implies, de facto, a change of regime. That is, when it happens that, under the shell of a constitutional system, an increasingly authoritarian system begins to develop, which successively curtails freedoms and deteriorates the viability of individual life plans, denigrating the dignity of people, through the file to weaken the application of the legal norms destined to protect said rights, guarantees, and freedoms.

For this reason, a liberal political regime requires a substantive content that involves the express recognition of individual freedoms and rights, but also requires in a vital way the respect and enforcement of those procedures that make their effective exercise possible. This is, through a high degree of law enforcement, previously inspired by those political principles typical of liberal democracies.

When we are in the presence of a constitutional system that is designed to guarantee the existence of a government limited by the law itself and to protect the freedoms and rights of individuals, a low level of application of legal norms implies a true denaturalization of such a regime. political and a de facto transition to an authoritarian system of government. As has been pointed out, given that the low law enforcement imposes high opportunity costs on those who spontaneously choose to comply with the law and places them at a severe disadvantage compared to their competitors, the reduced law enforcement works as an incentive to generate low regulatory compliance by the population. In turn, assigning such low regulatory compliance by citizens to cultural or ethnic characteristics works as a pseudo-sociological foundation to increase punishments and continue the aforementioned de facto transition towards an authoritarian or totalitarian system.

A similar mechanism had been noted at the time by Friedrich Hayek in his well-known book The Road to Serfdom, although he did not focus so much on the low law enforcement as on the pretexts and excuses used to justify such a transition towards an authoritarian system. Generally, in a mistaken way, the “road to serfdom” is characterized as a process of increasing state interventions, but such assertion does not constitute the core of either the aforementioned book or about what should be understood by a road of servitude. As Hayek stated on that occasion, we are not faced with a political process of this type when governments intend to carry out a plan of social and economic transformation in accordance with a model of society whose characteristics are rarely stated expressly and which is placed above the procedures and constitutional safeguards designed to legally limit the power of governments and defend the rights and guarantees of individuals. Thus, the system of constitutional safeguards is seen as too onerous an obstacle for the transformation process set in motion and, consequently, it begins to be de facto repealed through a low level of regulatory application and the gradual replacement of a political decision-making system. based on rules by another of decisions taken based on the opportunity, merit and convenience related to the aforementioned model of society to which it is aspired to achieve.

Both in the case of the path of servitude, as of a smooth and flat deterioration of the levels of law enforcement, we find ourselves in the presence of a transition of political regime: from the Rule of Law towards an increasingly authoritarian system: the government of the pure will of men, free from legal and constitutional ties. In both cases, the validity of the notion of individual freedom as the absence of arbitrary coercion is under serious threat.

As it will have to be repeated every time it is necessary to do so, it does not depend on cultural, historical or ethnic traits. Such processes of political regime change respond to an incentive system that perverts the functional dynamics of the Rule of Law. In the case under study here, the low application of legal norms.

But to describe with a greater degree of precision what the aforementioned process of de facto change of the political regime, from liberal democracy and the Rule of Law to authoritarian or totalitarian systems consists of, it is necessary to delve into the distinction between decisions based on rules and those that are They are motivated by reasons of opportunity, merit or convenience, that is, in the exercise of discretionary power.

As previously admitted in this writing, every government official, whether he belongs to the administration or is a judicial magistrate, enjoys a certain margin of discretion in the exercise of his functions and within the framework of competences that the Constitution and the laws give him. grant. Thus, a judge can say the right for a specific case that is subject to his jurisdiction within a range of alternative solutions that the law and judicial precedents impose on him. Thus, we are not faced with a mechanical law enforcement -which is reminiscent of the modern aspiration of “mechanization of thought” – but rather in a judgment of the adequacy of the rules to the specific case that the courts carry out taking into account the special circumstances of people, time, and place that the law, being expressed in abstract and general terms, cannot foresee. However, such adaptation of the law to the specific case should not in any way distort the meaning, scope and purpose of the law. Something similar occurs with administration officials, who enjoy certain powers granted by law and who have a margin of discretion to operate within it, which is subject to control by other hierarchical state bodies, superior or judicial.

Likewise, there are situations in which both judges and public officials deviate exceptionally from the abstract and general guidelines of the laws without them configuring any illicit, that is, exceptions that are within the legal system itself. Thus, we find ourselves in the judicial sphere with judgments that are based on notions of justice and equity and in the administration sphere with discretionary powers expressly granted to officials by law.

[Editor’s note: this is Part 10 in a 12-part essay; you can read Part 9 here or read the essay in its entirety here.]

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

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

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

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

Copyrighting Code: Function masquerading as form

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

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

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

Patenting Code: Calling Dibs on How Everything Works

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

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

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

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

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

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

The shared vision: Wine without Bottles:

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 9 of 12)

If individual freedom is defined as the absence of arbitrary coercion – as F. A. Hayek did in his The Constitution of Liberty (1960) – it is clear that a government that bases most of its decisions on rules known to all will have to be less arbitrary than the one who makes decisions according to his own criteria of opportunity. Of course, this also requires an effective notion of the principle of equality before the law, since decisions based on norms that prescribe privileges according to definitions of races, estates or social classes will also be arbitrary. The same occurs with the other characteristics of what some authors have called a free government: division of powers, system of cross-checks between them, declarations of rights and guarantees, principles such as that of closure, the notion of representativeness of public offices and the requirement of their suitability to exercise them and other elements that make up the Rule of Law. The protection of individual liberty as the absence of arbitrary coercion comprises a whole set of political institutions and judicial procedures that make the limits to the free will of citizens and rulers legitimate. However, the level of law enforcement has generally been considered sidelong for both political and legal theory, relegating it to a purely sociological and even anthropological level. The law enforcement thus appears as a kind of “logical form” of law and politics, since it does not fully belong to either of the two territories, but rather delimits them.

This meant that the level of normative application has been seen as a social phenomenon, which in any case could be studied by an intersection between sociology and economics, as can be seen in the studies carried out by Gary Becker at the time; the same as the approach practiced centuries ago by Cesare Beccaría (who Joseph Schumpeter would label “the Italian Adam Smith”).

However, the high or low level of application of legal norms does not in itself constitute a sociological or anthropological phenomenon, since the commitment to the effective law enforcement depends directly on a political decision. This political decision activates a series of feedback mechanisms in society that allows it to be described as an autonomous and automatic system, as is any incentive system, but such uses and social practices are not the cause of regulatory compliance or non-compliance, but rather its adaptive response to the aforementioned political decision that underlies at all times.

Therefore, an approach that characterizes low regulatory compliance as the social response to the political decision to implement a low level of law enforcement requires a behavioral model consisting of individual utility-maximizing agents in their decisions, both at the level of citizens as well as government officials and magistrates. According to this behavioral model, it is government agents who seek to maximize their power by reducing the level of law enforcement, in order to gain discretion in its exercise; while ordinary citizens seek to minimize the costs of such discretion on the part of the rulers trying to evade compliance with a law that in a relatively low number of cases is actually applied.

Putting an end to such a state of affairs depends on a political decision: that of enforcing the law for the majority of cases and limiting exceptions to it to the minimum possible. However, since this will bind the rulers to the law and reduce their discretionary power, it should not be expected that such a decision will be taken spontaneously by the governing bodies, but under pressure from the branches of the state whose function consists of the control of government acts, such as the congress and the judicial system.

However, as already mentioned, the political system itself is in a trap, since raising the levels of law enforcement right off the bat would mean making effective punishments and sanctions pressed for a lower level of enforcement. For this reason, an improvement in the levels of law enforcement requires, previously or at least simultaneously, a reduction in the volumes of repressive sanctions, fines and compensation. A similar reasoning must be done for tax collection cases, since many times the tax levels discount a certain evasion rate. Reducing the tax evasion rate requires a prior or simultaneous tax reduction.

Law enforcement and political regime

As has been stated, the degree of compliance with legal norms by a population does not depend on cultural issues (far from it, ethnic), but is a variable on which governments can influence in a decisive way. The main instrument that governments have when it comes to encouraging (or discouraging) citizens’ compliance with the right is to regulate the degree of law enforcement. Once it has been decided what degree of regulatory compliance by the population the government intends to achieve, it remains to implement an efficient use of the budget item in order to achieve said objective while sacrificing the least amount of resources possible.

Thus, if a government decides that regulatory compliance should be close to 100%, then it will have to provide its supervisory system, security forces, and its judiciary with the necessary resources to obtain such a degree of law enforcement that show a clear signal to the population that the sanctions, repressive or pecuniary, that the law provides, will have to be applied. This will mean that whoever complies with the law will not incur any opportunity cost in terms of waiving possible advantages derived from its non-compliance, since such non-compliance by its competitors and other third parties is highly unlikely.

Of course these considerations belong to the field of “instrumental reason.” Before discussing the necessary mechanisms to achieve a high degree of compliance with the law by the population, it is imperative to discuss what type of law such a political regime will have. A democratic, modern, and liberal regime requires that the laws respect and ensure the validity of certain values, such as recognition and respect for human dignity, the right of each individual to have their own life plan, or as at the time It had been listed by the Scottish philosopher David Hume, ensuring stability in possession, his peaceful transfer of property, and the fulfillment of promises. It is useless to theorize about techniques to achieve a high degree of compliance with the law, if they are to be used by a regime that is dedicated to curtailing freedoms.

[Editor’s note: this is Part 9 in a 12-part essay; you can read Part 8 here or read the essay in its entirety here.]

Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 8 of 12)

Another aspect of the discretionary law enforcement consists of its selective application to opponents and social groups that fulfill the function of “scapegoats.” The history of humanity, fundamentally of the 20th century, offers unfortunately plenty of examples of such types of practices: application of norms that apparently had fallen into disrepair on certain sectors of society, investigations and meticulous follow-ups of opponents and their families concerning compliance with regulations rarely required of the rest of the citizens, are news that are familiar to the inhabitants of countries with undemocratic governments.

On the other hand, countries in which compliance with the rules is relatively low, generally sanction and enact extremely severe laws, without greater social or political resistance, since, considering its low compliance, few grant it the seriousness that they truly have. However, bearing in mind that the primary and exclusive function of every government consists of enforcing legal norms, the lower the degree of application of them, the greater the degree of discretion that such government will have if it decides to raise the degree of regulatory compliance, either in general terms for the entire legal system, or for a certain set of rules and either for the entire population as a whole or for a selectively identified part of it.

Of course, the selective application of the rules, when it is practiced without distinguishing individuals or social groups, works as a “fine-tuned” mechanism that makes the legal system more efficient. What is sought here are those anomalies that imply an authentic dissolution of the Rule of Law and the outright persecution of individuals or social or ethnic groups. It goes without saying that a legal system with a very high degree of law enforcement gives governments a very restricted margin of maneuver, so it could also be said that the high regulatory application works as a safeguard aimed at guaranteeing equality before the law and to avoid the aforementioned persecutions.

Culturalist explanations vs. systemic ones

The opinion that adherence to the norm is a cultural characteristic that varies from people to people is widely extended, to the point of becoming commonplace. There would be countries or regions that have a higher level of compliance and respect for the law, while kilometers further east or south, the behavior of individuals would change drastically. Theories about climates, religions, the role of civic education, and so on attempt to explain why certain countries abide by the laws they give themselves while others use them as “fa trap for fools”

This writing tries to defend the opposite thesis: it is the level of application of the norms that determines the cultural characteristics of the peoples and not the other way around. Culture is an adaptive response to the institutional determinants in force in each country.

To illustrate this last assertion with a hypothetical example: In a country where regulations are 50% enforced -that is, the citizen interprets it as a coin that turns in the air- no one will want to be within the group of inhabitants whose decisions they are constrained by the rules, since that would place them at a strong disadvantage compared to their peers who do not receive equal limitations, even more so if they are their competitors. Furthermore, regulatory transgression – such as tax evasion, in a context in which competitors do not pay their taxes – can often mean commercial survival for the individual. If, for example, if the municipal authorities impose a series of charges on restaurants in terms of hygiene conditions, number of tables per square meter and labor regulations, but also does not control compliance with such provisions, the merchant who complies with them it will be at a severe disadvantage compared to its competitors, who will be in a position to offer better prices or reinvest the profits from the savings generated by the non-compliance with the regulations in a better quality of service in other aspects of the restaurant.

Of course, inspections by the control body represent a costly expense to finance and, therefore, governments deploy “exemplary actions.” That is, for our example, they inspect a small number of establishments, but enough so that all the rest of the non-inspected businesses still comply with the standard in the event of receiving a random inspection. In these cases, the selective law enforcement is highly efficient: since it achieves high compliance with the law at a relatively lower cost.

However, cases that are dysfunctional have other characteristics. The first of these is that the level of law enforcement by the public powers is really low. The second is that the penalties – imprisonment, fine or compensation – are extremely high, since their main function is to counterbalance the relatively low degree of regulatory application. The third is that the rulers have such a high margin of maneuver, attentive to the low habitual application of the norms, that their application has the same effects as a norm created at the time by the government for a special situation. In other words, in practice the Rule of Law has been dissolved.

This leads us to the distinction between a government that makes decisions based on rules and principles versus another that motivates its decisions on matters of opportunity, merit or convenience, that is, pure discretion. Of course, here we are also faced with two polar definitions, one and the other model of government are ideal types in the Weberian style. Every rule-based government needs to carry out its action with a certain level of discretion. At the same time, even a tyrant, who wields power despotically, needs a minimum of predictable structure, at least to maintain his own identity as a ruling subject. However, it is relevant to establish the distinction between government decisions based on norms and principles and those that are guided exclusively by reasons of opportunity, for the purpose of making a judgment on the level of individual freedom that predominates in a certain political regime.

[Editor’s note: this is Part 8 in a 12-part essay; you can read Part 7 here or read the essay in its entirety here.]

Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 7 of 12)

Of course, for this hypothetical example to have an acceptable degree of relevance, a distinction must be made between highly probable consequences and merely contingent consequences. It is highly probable that a greater application of the norm will generate a change of behavior on the part of the public and that this will translate into fewer infractions. However, the fact that this lower number of infringements produces a relatively negative tax collection result is a matter of fact on which no nexus of necessity or probability can be predicated. An increase in the levels of regulatory application may result in an increase, in a reduction or neutral to the collection purposes, the final result depending on a multiplicity of circumstances. Notwithstanding this, the mere possibility of having a collection failure already represents a negative incentive for the government that is considering investing resources in increasing the degree of application of the regulations.

Another means of increasing the deterrent power of traffic regulations without incurring the costs of greater supervision of the streets and enforcement of fines is the expeditious solution of maintaining the level of regulatory enforcement but increasing the face value of the penalty. If with an application level of 1%, a fine of $1,000 – generates the same conditioning of conduct as a fine of $10, – with a 100% probability of application, then it is expected that the same fine will be increased to $80,000 obtain the same deterrent result as a fine of $1,000 – with 80% application. Thus, the government would obtain the same behavioral results of raising the level of regulatory enforcement without investing any additional resources, beyond the announcement of the new fines. Furthermore: if in fact the behavior modification were not so successful, since the level of infractions did not drop as expected, then the government would obtain a collection award, since they would mean an increase in its income from fines.

Thus, we see how, in terms of collection costs and benefits, faced with the dilemma between increasing the level of application of the rules or increasing the value of punishments (years in prison, fines or compensation in favor of third parties), incentives operate so that the governments decide for the latter type of solutions. Moreover, a low level of normative application generates the social unrest typical of any system of coexistence rules that does not work, which leads, in a kind of positive feedback mechanism, to a demand for an increase in the severity of the punishments. It is for this reason that, when there is evidence of a low level of regulatory compliance, governments find themselves in a trap, since the very dynamics of incentives induce them to increase the severity of sanctions instead of increasing the level of enforcement of the law.

However, although the behavioral effects of both models (low punishments with high application vs. high punishments with low application) could be quantitatively similar, they are not similar in terms of long-term social and political dynamics: societies with a High law enforcement tends to be democratic and liberal while low law enforcement societies tend to be opaque and authoritarian. The biggest trap that both governments and civil society can fall into is to attribute the consequences of low regulatory enforcement to cultural factors. Such a culturalist explanation definitively closes off any possibility of finding a reasonable solution and avoiding the trap of systematically increasing levels of authoritarianism.

This tendency to increase authoritarianism on the part of governments and societies manifests itself at various levels. One of them is the aforementioned increase in prohibitions and punishments. But another factor of authoritarianism is also represented by the wide margin of discretion that a low level of law enforcement grants to governments, since they are empowered to raise said levels of application at their own will.

To continue with the example with which the exhibition has been illustrated, although a fine for passing a red light of $80,000 that has an application of 1% is experienced by the population as a fine of $800 – with 100% application, nothing prevents the government from deciding to activate a mechanism for the control of infractions that raise the application to 50%, for putting a case, which means having fines of $40,000 in practice.

[Editor’s note: this is Part 7 in a 12-part essay; you can read Part 6 here or read the essay in its entirety here.]