Japanese adoption

A recent article in the Economist describes the results from a study of an interesting Japanese custom. Traditionally (and according to the civil code until 1945), company ownership and leadership were passed on through primogeniture. This custom has continued to be practiced, and the study found solid evidence that family-managed companies outperform professionally managed companies. It could be argued that family unofficial training, continuity, and trust are at the root of this, but the authors find a different reason: adoption.

Japan and the US lead the world in adoption rate, but Japanese adoption is not necessarily what you would think. Over 90% of Japanese adoptions are of adults, who are usually men adopted into childless (or more specifically son-less) families for business purposes. This is also quite traditional, and since Japanese birth rates are extremely low, Japanese businessmen are likely to continue adopting talented, ambitious single men. This is often also accompanied by marriage to the daughter of the businessman (while women participate in business in Japan, they are more rarely the executives), which is referred to as mukoyoshi and combines familial with business ties.

This practice has the advantage of allowing for the trust, mutual investment, and long-term planning and teaching based on family relationship while avoiding the risk of having an unfit successor. In fact, in reading this, I am reminded of another culture’s custom of adoption: ancient Rome.

Ancient Rome also had a custom of adoption among its upper classes because of the prestige associated with old patrician family names and the incentives of inheritance laws (for a time it also served as a political means of a patrician gaining the tribuneship, as the Gracchi did). Similarly to the Japanese businessmen, adopted sons tended to excel (the earliest and best example is the Republican general Scipio Aemilianus), and it served as a method of political alliance and developing shared interest. It also became a typical method of succession for Roman emperors in the case that no son was available, a deal needed to be made between factions, or an emperor had a favored successor to whom he was not related. Adopted emperors included Trajan (adopted by Nerva as deal with the army, successful and beloved military leader), Hadrian (great builder and patron of the arts), and Marcus Aurelius (famed general and philosopher), and were generally well-reputed and effective leaders. In contrast, the sons of emperors (such as Domitian and Commodus, who were both infamously insane and harmful, or Maxentius, whose usurpation followed a blood-based claim) or blood-based successors (such as Caligula, who was blood-thirsty and childish, Nero, who was brutal and wasteful, and Elegabalus, who had was more interested in orgies than leadership).

It seems that the same potential reasons underlying Japanese business success through adoption were also at work in antiquity: emperors who were chosen and bred based on their abilities provided the continuity associated with heredity but with the advantage of meritocratic selection. This raises the question of whether this advantage has somehow been passed over by the Western world in those cases where we have avoided family-based succession in business (based on worries about nepotism and/or to gain the advantages of meritocratic selection). Even more interesting, does the adoption practice maintain the freedom of choice and opportunity found in Western careers while also conferring the ability to maintain trust and continuity that family-based succession offers?

Auftragstaktik: Decentralization in military command

Many 20th century theorists who advocated central planning and control (from Gaetano Mosca to Carl Landauer, and hearkening back to Plato’s Republic) drew a direct analogy between economic control and military command, envisioning a perfectly functioning state in which the citizens mimic the hard work and obedience of soldiers. This analogy did not remain theoretical: the regimes of Mussolini, Hitler, and Lenin all attempted to model economies along military principles. [Note: this is related to William James’ persuasion tactic of “The Moral Equivalent of War” that many leaders have since used to garner public support for their use of government intervention in economic crises from Great Depression to the energy crisis to the 2012 State of the Union, though one matches the organizing methods of war to central planning and the other matches the moral commitment of war to intervention, but I digress.] The underlying argument of the “central economic planning along military principles” was that the actions of citizens would be more efficient and harmonious under direction of a scientific, educated hierarchy with highly centralized decision-making than if they were allowed to do whatever they wanted. Wouldn’t an army, if it did not have rigid hierarchies, discipline, and central decision-making, these theorists argued, completely fall apart and be unable to function coherently? Do we want our economy to be the peacetime equivalent of an undisciplined throng (I’m looking at you, Zulus at Rorke’s Drift) while our enemies gain organizational superiority (the Brits had at Rorke’s Drift)? While economists would probably point out the many problems with the analogy (different sets of goals of the two systems, the principled benefits of individual liberty, etc.), I would like to put these valid concerns aside for a moment and take the question at face value. Do military principles support the idea that individual decision-making is inferior to central control? Historical evidence from Alexander the Great to the US Marine Corps suggests a major counter to this assertion, in the form of Auftragstaktik.

Auftragstaktik

Auftragstaktik was developed as a military doctrine by the Prussians following their losses to Napoleon, when they realized they needed a systematic way to overcome brilliant commanders. The idea that developed, the brainchild of Helmuth von Moltke, was that the traditional use of strict military hierarchy and central strategic control may not be as effective as giving only the general mission-based, strategic goals that truly necessitated central involvement to well-trained officers who were operating on the front, who would then have the flexibility and independence to make tactical decisions without consulting central commanders (or paperwork). Auftragstaktik largely lay dormant during World War I, but literally burst onto the scene as the method of command that allowed (along with the integration of infantry with tanks and other military technology) the swift success of the German blitzkrieg in World War II. This showed a stark difference in outcome between German and Allied command strategies, with the French expecting a defensive war and the Brits adhering faithfully and destructively to the centralized model. The Americans, when they saw that most bold tactical maneuvers happened without or even against orders, and that the commanders other than Patton generally met with slow progress, adopted the Auftragstaktik model. [Notably, this also allowed the Germans greater adaptiveness and ability when their generals died–should I make a bad analogy to Schumpeter’s creative destruction?] These methods may not even seem foreign to modern soldiers or veterans, as it is still actively promoted by the US Marine Corps.

All of this is well known to modern military historians and leaders: John Nelson makes an excellent case for its ongoing utility, and the excellent suggestion has also been made that its principles of decentralization, adaptability, independence, and lack of paperwork would probably be useful in reforming non-military bureaucracy. It has already been used and advocated in business, and its allowance for creativity, innovation, and reactiveness to ongoing complications gives new companies an advantage over ossified and bureaucratic ones (I am reminded of the last chapter of Parkinson’s Law, which roughly states that once an organization has purpose-built rather than adapted buildings it has become useless). However, I want to throw in my two cents by examining pre-Prussian applications of Auftragstaktik, in part to show that the advantages of decentralization are not limited to certain contexts, and in part because they give valuable insight into the impact of social structures on military ability and vice versa.

Historical Examples

Alexander the Great: Alexander was not just given exemplary training by his father, he also inherited an impressive military machine. The Macedonians had been honed by the conquest of neighboring Illyria, Thrace, and Paeonia, and the addition of Thessalian cavalry and Greek allies in the Sacred Wars. However, as a UNC ancient historian found, the most notable innovations of the Macedonians were their new siege technologies (which allowed a swifter war–one could say, a blitzkrieg–compared to earlier invasions of Persia) and their officer corps. This officer corps, made up of the king’s “companions,” was well trained in combined-arms hoplite and cavalry maneuvers, and during multiple portions of his campaign (especially in Anatolia and Bactria) operated as leaders of independent units that could cover a great deal more territory than one army. In set battles, the Macedonians showed a high degree of maneuverability, with oblique advances, effective use of reserves, and well-timed cavalry strikes into gaps in enemy formations, all of which depended on the delegation of tactical decision-making. This contrasted with the Persians, who followed standards into battle without organized ranks and files, and the Greek hoplites, whose phalanx depended mostly on cohesion and group action and therefore lacked flexibility. [Also, fun fact, the Macedonians had the only army in recorded history in which bodies of troops were identified systematically by the name of their leader. This promoted camaraderie and likely indicates that, long-term, the soldiers became used to the tactical independence and decision-making of that individual. Imagine dozens of Rogers’ Rangers.]

The Roman legion: As with any great empire, the Macedonians spread through their military innovations, but then ossified in technique over the next 150 years. When the Romans first faced a major Hellenistic general, Pyrrhus, they had already developed the principles of the system that would defeat the Macedonian army: the legion. In the early Roman legion, two centuries were combined into a maniple, and maniples were grouped into cohorts, allowing for detachment and independent command of differing group sizes. Crucially, centurions maintained discipline and the flexible but coordinated Roman formations, and military tribunes were given tactical control of groups both during and between battles. The flexibility of the Roman maniples was shown at the Battle of Cynoscephalae, in which the Macedonian phalanx–which had frontal superiority through its use of the sarissa and cohesion but little maneuverability–became disorganized on rough ground and was cut to pieces on one flank by the more mobile and individually capable Roman legionaries, This (as well as many battles in the Macedonian and Syrian Wars proved) showed the value of flexibility and individual action in a disciplined force, but where was the Auftragstaktik? At Cynoscephalae, after defeating one flank, the Romans on that flank dispersed to loot the Macedonian camp. In antiquity, this generally resulted in those troops becoming ineffective as a fighting force, and many a battle was lost because of pre-emptive looting. However, in this case, an unnamed tribune–to whom the duty of tactical decisions had been delegated–reorganized these looters and brought them to attack the rear of the other Macedonian flank, which had been winning. This resulted in a crushing victory and contributed to he Roman conquest of Greece. Decentralized control was also a hallmark of Julius Caesar himself, who frequently sent several cohorts on independent campaigns in Gaul under subordinates such as Titus Labienus, allowing him to conquer the much more numerous Gauls through local superiority, lack of Gallic unity, and organization. Also, at the climactic Battle of Alesia, Caesar used small, mobile reserve units with a great deal of tactical independence to hold over 20 km of wooden walls against a huge besieging force.

The Vikings: I do not mean to generalize about Vikings (who could be of many nations–the term just means “raider”) when they do not have a united culture, but in their very diversity of method and origin, they demonstrate the effectiveness of individualism and decentralization. Despite being organized mostly based on ship-crews led by jarls, with central leadership only when won by force or chosen by necessity, Scandinavian longboatmen and warriors exerted their power from Svalbard to Constantinople to Sicily to Iceland and North America from the 8th to 12th centuries. The social organization of Scandinavia may have been the most free (in terms of individual will to do whatever one wants–including, unfortunately, slaughter, but also some surprisingly progressive women’s rights to decisions) in recorded history, and this was on display in the famous invasion of the Great Heathen Army. With as few as 3,500 farmer-raiders and 100 longboats to start, the legendary sons of Ragnar Lothbrok and the Danish invaders, with jarls as the major decision-makers of both strategic and tactical matters for their crews, won a series of impressive battles over 20 years (described in fascinating, if historical-fiction, detail in the wonderful book series and now TV series The Last Kingdom), almost never matching the number of combatants of their opponents, and took over half of England. The terror and military might associated with the Vikings in the memories of Western historians is a product of the completely decentralized, nearly anarchic methods of Scandinavian raiders.

The Mongols: You should be sensing a trend here: cultures that fostered lifelong training and discipline (and expertise in siege engineering, which seems to have correlated with the tactics I describe, as the Macedonians, Romans, and Mongols were each the most advanced siege engineers of their respective eras) tended to have more trust in well-trained subordinates. This brought them great military success and also makes them excellent examples of proto-Auftragstaktik. The Mongols not only had similar mission-oriented commands and tactical independence, but they also had two other aspects of their military that made them highly effective over an enormous territory: their favored style of horse-archer skirmishing gave natural flexibility and their clan organization allowed for many independently-operating forces stretching from Poland to Egypt to Manchuria. The Mongols, like the Romans, demonstrate how a force can have training/discipline without sacrificing the advantages based on tactical independence, and the two should never be mixed up!

The Americans in the French and Indian War and the Revolutionary War: Though this is certainly a more limited example, there were several units that performed far better than others among the Continentals. The aforementioned Rogers’ Rangers operated as a semi-autonomous attachment to regular forces during the French and Indian War, and were known for their mobility, individual experience and ability, and tactical independence in long-range, mission-oriented reconnaissance and ambushes. This use of savvy, experienced woodsman in a semi-autonomous role was so effective that the ranger corps was expanded, and similar tactical independence, decentralized command, and maneuverability were championed by the Green Mountain Boys, the heroes of Ticonderoga. Morgan’s Rifles used similar experience and semi-autonomous flexibility to help win the crucial battles of Saratoga and Cowpens, which allowed the nascent Continental resistance to survive and thrive in the North outside of coastal cities and to capture much of the South, respectively. The forces of Francis Marion also used proto-guerrilla tactics with decentralized command and outperformed the regulars of Horatio Gates. Given the string of unsuccessful set-piece battles fought by General Washington and his more conventional subordinates, the Continentals depended on irregulars and unconventional warfare to survive and gain victories outside of major ports. These victories (especially Saratoga and Cowpens) cut off the British from the interior and forced the British into stationary posts in a few cities–notably Yorktown–where Washington and the French could siege them into submission. This may be comparable to the Spanish and Portuguese in the Peninsular War, but I know less about their organization, so I will leave the connection between Auftragstaktik and early guerrilla warfare to a better informed commenter.

These examples hopefully bolster the empirical support for the idea that military success has often been based, at least in part, on radically decentralizing tactical control, and trusting individual, front-line commanders to make mission-oriented decisions more effectively than a bureaucracy could. There are certainly many more, and feel free to suggest examples in the comments, but these are my favorites and probably the most influential. This evidence should cause a health skepticism toward argument for central control on the basis of the efficiency or effectiveness demonstrated in military central planning. Given the development of new military technologies and methods of campaign (especially guerilla and “lone wolf” attacks, which show a great deal of decentralized decision-making) and the increasing tendency since 2008 to revert toward ideas of central economic planning, we are likely to get a lot of new evidence about both sides of this fascinating analogy.

How to take over Syria, Roman edition

While Trump’s decision to bomb a Syrian airfield in response to use of chemical weapons by the Syrian government got the lion’s share of the press attention about American involvement in Syria (probably because of the contrast with Obama’s preference for diplomacy despite his “red line” threat), the more important strategic operations have not been discussed as fully. Building upon the successful establishment of two airfields last year, the US has expanded or established bases at crucial locations and begun to attack key targets in the northern part of Syria that show an excellent understanding of the topography and logistics of the region. These developments may be the linchpin in choking off traffic and crippling supply and movement of ISIL, and should contribute to the long-term goal of securing Hasakah and Raqqah provinces. What is interesting in all of this, perhaps due to the historical expertise of National Security Adviser H.R. McMaster, is that this logistical focus mimics the attack routes that were vital to invasions of the area from Alexander the Great down to Julian the Apostate.

The Euphrates River as an ancient supply highway

In the era of Alexander the Great, supply and communication were important constraints on military action; the logistics of his march through Syria are extremely well described by Donald Engels. Essentially, because of the lack of water sources in surrounding areas, the rough Taurus Mountains to the north and Arabian Desert to the south, and the provisions and easy transport supplied by it, the Euphrates River was a common “highway” for military movement in antiquity. Controlling and utilizing it was essential to control of the trade and military actions between the Mediterranean coast and Mesopotamia. In his defense against Alexander, Darius III kept his army on the Euphrates, and Alexander surprised him by crossing northern Mesopotamia to follow the Tigris River (near Mosul, which ISIL also recognized as vital) instead. However, almost every major invasion of the area from the west has gone through what is now southeastern Turkey to reach the headwaters of the Euphrates, including those of Trajan, Septimius Severus, and Julian the Apostate. Crassus reaped the gruesome rewards of avoiding the Taurus/Euphrates route.

The Euphrates valley was important not only as a military route, but also as a source of agricultural income and a crucial portion of the early Silk Road. Therefore, the nation that controlled the northern Euphrates valley could finance their military through control of trade and taxation (which Zenobia’s husband used to assert his own quasi-independence from a city that ISIL has ironically destroyed), a fact that has changed only in the economic transition from agricultural production to petroleum extraction. Now, ISIL not only taxes and sells oil to support its endeavors, but it knew from the outset to seize strategic locations on the route and even wanted to use the Euphrates river as its logo!

The mountains north of the Euphrates

The famous historian and general, Xenophon, was part of an army that followed the Euphrates down to a fateful battle at Cunaxa, and his retreat through the Taurus Mountains and ancient Armenia involved encounters with natives who were extremely capable in skirmishing on mountainous terrain. Both Xenophon and Mark Antony learned how difficult this route was, and the successful Kurdish defense of the Sinjar mountains and victories in the mountains of northeastern Syria using small arms and mobile forces while conceding villages is reminiscent of these ancient raiding methods. Though bombing obviously differs in technology and methods from ancient infantry, it also involves avoiding direct battle in order to destroy resources and harass enemy armies in motion, and so the American strategies based on assaults from the Rmeilan and Incirlik airfields over the past year have used the same attrition tactics to wear down ISIL strongholds.

What comes next?

If ancient campaigns can tell us anything, it may be that the US is transitioning from bombing from afar to more direct assaults on the cities, roads, and resources of ISIL along the northern Euphrates. The US still holds bases in northwestern Syria, defending the western flank of Kurdish-controlled territory and providing a buffer to Turkey (which, along with Turkish efforts to stop individual penetration of the border, should mitigate ISIL recruitment and international travel). Now that it has augmented this by creating bases that choke off routes to the headwaters of the Euphrates and allow closer engagement with ISIL since January, the US seems to be poised to contain ISIL attacks with greater alacrity and support Kurdish ground assaults on the ISIL capital of Raqqa. The escalation may be as support in the race to Raqqa and to take advantage of victories in eastern half of the campaign in Mosul, and comparison to the campaigns cited above would indicate that the US and Kurds are moving much slower than ancient campaigns, but using the same routes, attacking targets in similar ways, and with the same respect for topography and logistics.

Rules of Warfare in Pre-Modern Societies

As my first foray into NOL blogging, I figured I would bring up a recent debate I had liberty, war, and peace that lingered in my mind: how have rules of war been maintained throughout history without a central enforcing agency? This question is fundamental to the understanding of the nation-state in IR theory, and is also an astonishing example of spontaneous order in an anarchic and chaotic scenario.

The quandary exists because even the laudable negative rights of life, liberty, and property ownership, as Eric Mack discusses in his essay on Just War Theory, require a positive enforcement by others. Similarly, “rules of war”–such as refraining from attacking non-regulars, not attacking neutral parties, abiding by the terms of treaties, treating prisoners of war with respect, etc.–are, theoretically, difficult to establish and dependent on positive enforcement. This is because if Party A respects these rules, they provide a perverse incentive to Party B to take advantage of Party A’s restraint, and if doing so gives Party B the upper hand, they can enjoy the benefits of betraying the rules of war with impunity. This is a classic Prisoner’s Dilemma, and if it generalized across many nations, the theory of rational choice would lead us to expect a coordination problem, in which those using the strategy of Party B would dominate the Party A’s.

I am certainly not the first to identify this, and the literature on overcoming coordination problems through iteration of the Prisoner’s Dilemma, regime collaboration, and international organizations and treaties is incredibly thorough (just for a taste, you can see James Morrow’s book, F.V. Kratochwil’s book, and articles by Duncan Snidal, Arthur A. Stein, and even James Buchanan and Victor Vanberg). However, I thought it would be interesting to examine the historical evidence of effective rules of war, particularly from the premodern period. Because global communication technology and networks, international courts, treaties, and organizations, and deterrence based on the terrifying weapons of modern war were lacking in antiquity and on through roughly the 18th century (open to argument on that one), premodern societies seem to be the best test of the effectiveness of rules of war and their mechanisms. I won’t discuss any in detail, and I am skipping many rules of war for which their effectiveness is not discernable (such as the Mahabarata, Deuteronomy, and the Quran), but here is a list of interesting examples for discussion:

  • The archaic Greek poleis:
    • As Victor Davis Hanson argues in his influential book, the Western Way of War, the incentive to focus on agricultural production and the fact that citizen-warriors were personally responsible for military service made the costs of long-term campaigns, especially given the lack of siege technologies and the difficulty in laying waste to wheat fields and olive trees, higher than the potential benefits. However, there were still disputes to be resolved, and raiding was still harmful to the agriculture of polis that was raided. In order to limit costs to both invader and defender, the poleis developed the hoplite warfare strategy, in which citizen-soldiers met for decisive conflicts in traditional, if not previously agreed, locations, in which limited territorial gains were afforded to the victor. While this does not describe every aspect of 7th-5th century warfare in Greece, this strategy pervaded the Greek mainland and allowed disputes to be resolved with minimal collateral damage and investment.
  • Thucydides’ Athens:
    • Though Thucydides’ History of the Peloponnesian War is seen as the invention of realism based on its “the strong did what they could, and the weak suffered what they must” representation of self-interest in foreign policy, his narrative as a whole shows an important constraint in war: if a military power makes war with the expressed intent of empire-building without casus belli, they will entrench their enemies, alienate neutral states, and cause divisiveness on the home front because they have lost the moral high ground. Thucydides notes that the majority of Greeks opposed Athens on the grounds of their selfish empire-building, and because of their inability to convince Sparta of their just motives, brutality to neutral states, internal dissension during the Sicilian expedition, and many other misfortunes of war (plague, death of Pericles, Persian intervention), Athenian power was broken. The lesson: Party B (from above) must consider the international reaction to abusing Party A, and at least make a public showing that the war is just. Also, if Hitler had only read his Thucydides, he might have known that marching through Belgium may be tactically sound, but he was risking the same reaction that the Athenians risked in the Melian massacre.
  • POW’s and ransoming in antiquity
    • Several rules of warfare were maintained through the mutual benefits to combatants, the most notable being the conventions concerning ransoming. From at least 5th century Greece (in the Sphacteria incident) to Caesar, citizens could be ransomed following a battle—and there were even conventional levels of payment for these POW’s. This was a benefit specifically afforded to “civilized” foes, and Roman practice increasingly became enslavement rather than ransom, but this convention was widespread for centuries, possibly showing that ransoming enemies is an Iterated Prisoner’s Dilemma.
  • Ancus Marcius and Just War Theory:
    • Along the same lines as the Thucydides example, the Romans engaged in the ritual of the fetiales, including the enumeration of the just cases for war, before invading an enemy. This limited war to official disagreements with neighboring states, and other religious conventions were maintained that limited certain tactics in war (a noteworthy passage of the Aeneid shows that putting on the armor of your enemies for stealth purposes would be doubly punished by the gods). These conventions included looking down on poison as woman’s weapon and on taking some religious statuary as booty, and though Roman generals still poisoned wells or robbed cities of their gods, they received negative reactions by their contemporaries.
  • Hostage policies throughout antiquity:
    • Another problem with the rules of war is the enforcement of treaties, which have credible commitment problems. Both Greeks and Romans made imperial gains by breaking treaties, but it was common practice to overcome the credible commitment problems of both alliances and treaties to end wars that hostages, usually the children of influential citizens or nobles, were exchanged. Whether they were exchanged both ways (more common in alliances) or passed only one way (usually from the defeated to the victorious), hostages were used at least 250 times by Rome and countless times by other ancient civilizations to ensure the enforcement of treaties.
  • Carthage’s “Truceless War”:
    • While we often think of ancient war as anarchic and based on the whims of generals, wars that completely lacked conventions or limitations were rare. In fact, following truces that allowed for collection of the dead, ransoming of both the living and the dead, and supplication for one’s own life go back at least as far as the Iliad, and wars that lacked such conventions were shocking to ancient historians. Such wars occurred when one side broke a general convention, usually the convention of allowing enemies to surrender alive and be ransomed. Because of this betrayal, their opponents would also stop following any rules of war, and such wars became not about achieving strategic goals but annihilating the opponent entirely. Carthage, following their loss in the First Punic War, fought a truceless war with their former mercenaries due to lack of payment that featured escalations in mutilation and crucifixion until the mercenaries were wiped out, at great cost in men and money to Carthage.
  • Roman 3rd party arbitration or intervention:
    • The Romans, after they gained international prominence but before they ruled the whole Mediterranean, took an interest in wars between their neighbors. While this sometimes included imperialism, in several instances they served as a 3rd party arbitrator of peace, and even as an enforcer of peace in Antiochus IV’s invasion of Egypt.
  • Blood feuds:
    • While mentioning blood feuds brings up images of Hatfields, McCoys, and senseless brutality over generations, blood feuds were actually a mechanism for limiting violence through threat of reprisal. While the effectiveness of this mechanism may be debatable, its intention as a limitation of violence is notable in several pre-modern societies, especially the Scots and Slavs.
  • Chivalric codes:
    • We should be careful of romanticizing this example, but from the 12th to 14th centuries, chivalry established rules of conduct for how knights should treat knights on and off the battlefield. Much of the conception of chivalry comes from poetic fictions about historical figures that were vicious or corrupt in many ways. However, it was actually the battlefield codes, such as ransoming rather than killing noble foes, that were actually practiced the most often, a trend that saw a brutal reversal in the War of the Roses. One might point out that neither the chivalric codes nor the earlier Roman codes of war included avoidance of harming civilians. This shows that, while rules of war were effective in practice at many points in history, they did not always have the same conceptions of what these rules were made to protect.
  • The Roman Catholic Church:
    • Catholicism influenced the rules of war in two ways: like the fetiales of the Romans, it established the grounds on which war was justifiable (and was influential on the ideals of chivalry), and the pope himself, through the power of excommunication, could limit the warring impulses of kings and lords. While many popes used their power to cause conflict, the church still had both moral influence and bargaining power, and was a powerful international institution for centuries that forced treaties on Christian rulers, provided a court of arbitration, and, several times, that tried to unite these leaders in war against non-Christians. The influence of Catholic peacekeeping measures waxed and waned from Charlemagne onward, but the Peace and Truce of God was one of the earliest attempts to protect non-combatants in wartime

This very incomplete list represents a lot of the more conventional examples of this phenomenon (sorry, but I am very conventionally educated). I would love if those who have other examples, especially from outside of Greece, Rome, and the Western World, would bring them up in the comments so I can expand my knowledge of the history of the rules of war!

The many iterations of rules of war in pre-modern societies shows the effectiveness of spontaneous order in creating systems that promote liberty and peace. These rules did not eliminate violence, cruelty, or imperialism, but they forced self-interested parties to check their selfish impulses. This is not an argument that international organizations with the goal of limiting war are unnecessary (and the Geneva Conventions are a laudable example of voluntary self-enforcement), but rather a demonstration of the wide reach of both Smith’s invisible hand and Hayek’s spontaneous order: even in the most anarchic of trades, long-term individual self-interest can support general interest, and a certain level of order is imposed on the chaos of war through the unplanned conventions of societies.

 

ἐν μὲν γὰρ τῇ οἱ παῖδες τοὺς πατέρας θάπτουσι, ἐν δὲ τῷ οἱ πατέρες τοὺς παῖδας

In [peace], sons bury their fathers, but in [war], fathers bury their sons.

–Herodotus, The Histories, 1.87.4.

Myths of Sovereignty and British Isolation XVIII: Laws, Juridification and the Administrative State

The last post focused on the distinction between civil and common law, with regard to Britain’s position as a common law country in contrast with the civil law tradition of the rest of Europe. The promise at the end was to move onto laws, charters, and constitutions in this post. However, I have found it necessary to discuss the idealisation of common law further and look at how a large part of this looks back to a world which is lost, regardless of predominant legal system as societies have roughly speaking moved from customary law to ‘juridification’ (state centred comprehensive law penetrating all social relations), and then the world we live in now of the administrative state.

The British sovereigntist and Eurosceptic position tends to emphasise a supposed unique British exception from the statist rationalism of civil law, in the ‘common sense’ of the accumulation of law arising from judicial precedent in the decisions of judges in previous cases. This supposedly British exception looks rather challenged when we consider the thoughts of the influential German philosopher Hans-Georg Gadamer in his 1960 book Truth and Method. Gadamer refers to French rationalist Enlightenment in contrast with a German form of Enlightenment based on the original understanding of ‘prejudice’.

Prejudice, in Gadamer’s account, did not begin as a negative term for the constraints of false assumptions, but in a legal process in which the court forms a preliminary opinion in an early stage of proceedings. For Gadamer this represents the continuity of custom and the communal sense of justice in contrast to abstract rationalism. What he describes is not the same as the common law tradition, but represents another way in which the apparent underlying advantages of common law can appear in another system.

The idealisation of common law is really a claim to prolong the role of custom in law into the age of state statutes and deliberately constructed legal codes. Not that an age can be identified in which pure custom operated and no state created laws existed. It can be said that laws used to be less in number and articulated in terms of defending the wisdom of ancestors as part of a generally shared sense of justice.

However, the destruction of such a world, which depends on accepting fictions about the harmonious origin of laws outside the interests of power, was not from the triumph of civil law. The heroic moments of civil law in the process that leads from 1789 French Revolution through constitutional monarchy, republic, and Bonapartist autocracy, are the product of the decay of traditional societies in which localised and regionalised kinds of authority operated in ways which mixed statute and customary law, and where even in conditions of political autocracy the state ruled over either a very small community unified by common experience, or larger units which aggregated such communities rather than enforcing a very uniform and unitary form of sovereignty back by a hierarchical bureaucratic-military state machine.

There were of course elements of the latter, as in the eleventh century Norman Conquest of England, but even this established only a minute state machine by modern standards, which recognised the ‘privileges’ and ‘liberties’ of the City of London, the church, the barons, and so on. The idea of civil law is generally traced back to Rome, bracketed by the Twelve Tables of fifth century BCE Rome and the Corpus Juris of Civilis (often identified with the Institutes which form just one part of it) Justinian promulgated in the New Rome of Constantinople in the sixth century CE.

This civil law prevailed in Roman Britain for four centuries as it did from the Rhine to the Euphrates. The Roman world, including the Greek empire governed from Constantinople, that emerged in the sixth century, was nevertheless a world of localised traditional authority in which central state institutions were more like connecting threads rather than an all inclusive structure.

The Middle Ages saw a process of juridification, as Roman law continued in the church and was revived for the state, in which the uniform administration of justice became strong enough for a system of dominating unifying state military-bureaucratic power to emerge underneath sovereignty that was beginning to become more distinct from the person of a king (or occasionally the persons of an aristocratic assembly).

All European states went through a process, which has been implemented elsewhere, leading to what is now known as an administered society, administrative state, biopower, and all the other terms referring to the inclusive, comprehensive and unifying power of state law and state bureaucracy in relation to society. This was simultaneous with the development of capitalism as a dominant economic system working through unified national markets and trade between states.

A lot of what is said about the difference between common law and civil law represents a wish to return as far as possible to go back to a time before administered societies and even before juridification. There is no time at which law was purely traditional and consensual and no current possibility of even approaching that ideal. Concerns about the administered-juridified society have to be addressed with that world.

The common law tradition might or might not on average be better than the civil law tradition from that point of view, but common law is not what its strongest defenders wish it was and it is not obvious that civil law states in northern Europe including Switzerland, the Netherlands and Denmark, and in a slightly more qualified but real way, Germany are doing worse for liberty and prosperity than the English speaking common law countries. France, the homeland of modern civil law, is itself not doing at all badly compared with most countries in the world as it is and certainly in terms of human history.

For the next post the intention is to finally get onto charters and constitutions.

Myths of Sovereignty and British Isolation XVII: Common and Civil Law

The last post referred to the need to investigate ideas about law and related ideas in discussing Britain’s relation both with the Anglosphere (USA, Canada, Australia, New Zealand) and with the rest of Europe. The big issue here is Anglosphere common law tradition versus Roman or civil law tradition in the European mainland and indeed most of the world outside the Anglosphere. Common law in this context refers to judge-made law based on precedent versus civil law referring to statute laws based on the will of the sovereign. Statute laws are laws instituted by the state, in writing, in public explicit acts of law making.

Judge-made laws based on precedent refers to the ways in which judges, using a general sense of justice, make judgements according to that sense of justice with the precedents of previous relevant judgements shaping the sense of justice along with the whole set of laws and their general principles. Civil law judges look at the text of statutes, as do common law judges, but apparently the latter category of judges are also concerned with the mixture of precedents and general spirit of the laws.

There are certainly some real differences between common law and civil law traditions, but how straight forward are these difference? The phrase ‘common law’ itself comes from the codification and national harmonisation of laws undertaken by French-speaking kings of England, after William, Duke of Normandy, conquered England. So the phrase ‘common law’ itself refers to the opposite of what common law has come to mean: the English legal tradition since the High Middle Ages has come out of conquest by an external power. We can argue about how far Anglo-Saxon laws and judicial formalities survived the Norman and Angevin re-codification, but there is no denying that the re-codification happened and that nothing now survives from the Anglo-Saxon era.

England started off in the earlier Middle Ages where all of post-Roman Europe stood, that is Roman law had collapsed and Germanic tribes introduced their own laws in conquered territories, where some elements of Roman law survived in the canon law of the church. The Roman law system itself reached a peak with the final codification undertaken under the Emperor Justinian in Constantinople during the sixth century. The transformation of the eastern part of the Roman Empire into a Greek empire included a decline in knowledge of Latin so understanding of the definitive law text was limited, but survived in the Empire including the last Roman-‘Byzantine’ holdings in Italy.

Knowledge of Roman law increased in the thirteenth century, in association with the growth of new universities where legal education played a very large role. England was not outside this process, but it is fair to say that it was less influenced by it than some continental powers, particularly France. The process of Revolution and Bonapartist rule, from 1789, produced a large scale deliberate construction of law as a unified system based on the will of the sovereign (whether elected assembly or absolute monarch) with regard to the laws, which was exported to other parts of Europe in the Revolutionary and Napoleonic wars.

The British commitment to common law was not entirely consistent since Scotland has always retained some differences from England in its legal system, which place it closer to the civil law tradition, at least compared with England. In the United States, there was a parallel to the French republican and Bonapartist experience of redesigned institutions in the process of adopting first the Articles of Confederation and then the Constitution of the United States, which unified the thirteen British colonies in a common structure.

The difference between French and American constitution making is often held to be that the French constitutions claimed that laws are the will of the people and the product of nature, while the American constitution is designed to disperse any idea of a single political law-making will between the different branches of federal government and the ‘several states’. However, the preamble to the US Constitution refers to ‘we the people’ and therefore asserts that it is the product of a single political will of the people in the union.

While the US Constitution does not refer directly to good laws as the work of nature, there were shared underlying assumptions in France and the US concerning the ‘natural’ status of good laws, good political institutions, and justice. It is at least true that the US constitution federalises rather than centralises, while the French process of about the same time ended in a very centralised state. This cannot be the difference between common and civil law systems though, since there are federal civil law states like Germany and Switzerland and unitary common law states like the UK and New Zealand, though the UK has been evolving in a more federal direction, if in a rather ad hoc and limited way, since the turn of the century.

Next, laws, charters and constitutions

Expanding the Liberty Canon: Seneca on Mercy and on Anger

Lucius Annaeus Seneca the Younger (4-65 CE) was born in the Roman Spanish city of Cordoba. Southern Spain was one of the most Romanised parts of the Roman Empire outside of Italy, so it is not surprising that Seneca made his way to Rome where he became a writer and, it seems, a money lender. He was also tutor to and then adviser to the Emperor Nero. He had previously been in conflict with the Emperor Claudius, for unknown reasons, and was exiled to Corsica for a while as a consequence.

Seneca’s writing career covered philosophical essays, tragedies, and letters which amounted to an exploration of his philosophical interests. He followed the Stoic school of philosophy, which goes back to the Greek philosopher Zeno of Citium (334-226BCE), and was influential on the Roman upper classes. So much so that the Emperor Marcus Aurelius (121-180CE) wrote his Meditations with regard to Stoic thinking on character and ways of living. It was written in Greek, indicating how far Roman thought on ethics, politics, and other topics was continuous with, or at least engaged with, ancient Greek thought.

Seneca’s relations with Nero turned out to be even more destructive than those with Claudius. Seneca tried to educate and advise Nero to be honest, just, and restrained in the use of power. However, Nero turned out to be one of the most infamously cruel, paranoiac, and violent Emperors. These negative tendencies were turned on Seneca, so that even after Seneca had retired to the countryside to avoid the bad atmosphere around Nero, he was forced to commit suicide on suspicion of complicity with a conspiracy to assassinate Nero. (Nero himself was overthrown and pressured to commit suicide three years later.) Suicide was a relatively honourable form of death for Romans, and it was a privilege to be allowed to commit suicide rather than face execution, nevertheless Seneca and Nero can be said to have both met sorry ends as a result of political turmoil initiated by Nero.

Nero’s behaviour was really the direct opposite of that recommended to rulers by Seneca’s essays on anger and on mercy, and was a painful failure for Seneca who had tried to educate him from childhood for a moderate self-restrained use of power. Seneca’s approach to politics is to advise an absolute ruler in the use of power, so he might seem a bit paradoxical as part of a series on liberty. However, Seneca was considered as a major supporter of republics, of government based on individual liberty in the early modern period, so that Thomas Hobbes, the authoritarian-minded philosopher and political thinker, considered his thought a danger to sovereign state power.

Seneca’s thought certainly did mark the death of the Roman Republic, which was essentially abolished in substance (after a historical phase of hollowing out) by Julius Caesar in his period of absolute power from 49BCE until his assassination in 44BCE. The failure of the assassins to restore the republic led to the absolute power of Augustus and the inauguration of the autocratic emperor system.

Seneca refers unfavourably to those who use the Greek idea of ‘parrhesia’, that is free and critical public speaking, to excess, going against what had been taken as central to the liberty of citizens. The reason Seneca can be placed in the liberty tradition is that even when criticising excess in free speech, he praises a Macedonian-Greek king on the receiving end for the restraint of his reaction. Living in an age of absolute rulers, Seneca’s main concern is that they rule as the foundation of individual rights rather than as a source of arbitrary power over citizens.

The essays on mercy and anger bring together the fields of personal virtue and the best ways of governing. Virtue for Seneca, as was normal for ancient thinkers, was deeply embedded in ideas of self-restraint and moderation. From this point of view anger damages the angry person, as an example of self-harming extreme behaviour. Anger is a negative painful state of mind and to act under its influence leads to great harm.

Seneca is not simply saying that a ruler should follow general moral virtue in the manner of ruling. He places a particular responsibility on the ruler to resist anger and show mercy. The individual may harbour resentment against some enemy who caused harm, but the ruler must avoid such resentment. The ruler who publishes and executes all those regarded with suspicion as present or future enemies harms the state and the public good. Harsh treatment of individuals by rulers leads to those individuals becoming angry with the ruler so conspiring against that person. Executions will only stimulate further rebellion by those who were closest to the executed and leads to an increasingly violent period of rule. All the violence and revenge has negative consequences for the public good as well as for those persecuted.

The ruler should regard all individuals as part of the state, which he should be trying to manage responsibly. The state is harmed if any individual within the state is harmed, as the state exists to promote the public good. The ruler who cannot restrain desires for cruelty and who ignores the rights of individuals is suffering from a self-harming weakness of character and is likely to suffer violent revenge. Seneca mentions the third Roman Emperor, Caligula, in this context, who was assassinated in 41CE, four years after succeeding Tiberius.

The best thing the ruler can do is show mercy. Those who receive mercy, even after plotting assassination, are likely to start supporting the ruler, and even work for the ruler. It is better to forgive and try to integrate a conspirator than kill the conspirator so that others will wish to avenge that murder. The ruler should obey laws as much as ordinary citizens, and should be mild in applying laws. Everyone is guilty of some fault, of some minor breach of law, at some time, so that punishing all wrong-doers will lead to the destruction of a society, as nearly all inhabitants of the territory of the state disappear.

While Seneca assumes that political power rests with one person, he argues that the continuing exercise of the power rests both on reliable justice with regard to the execution of laws and restraint from the most extreme or obsessive punishment. The powers of the state are understood as different from those of an individual, and as such must be much more limited in use than the power of citizens. The rights and welfare of citizens depend on a ruler who follows law and assumes less power than individuals, which makes a worthy contribution to thought about liberty.