Nightcap

  1. Paul Gauguin in San Francisco Bradley Anderson, Claremont Review of Books
  2. Did European colonisation precipitate the Little Ice Age? Dagomar Degroot, Aeon
  3. What if climate warriors put their money where their mouths are? Joakim Book, Mises Wire
  4. It all started with my balls.” Colm Tóibín, London Review of Books

Eye Candy: the US Asian population, circa 2010

NOL map US Asian population
Click here to zoom

“Asian” is a pretty broad term. Racial classifications are, perhaps, the dumbest thing in the world.

Imagine seeing something like this in the press today, or this as an advertisement. There’s been lots of progress in this country, it’s just hard to see sometimes.

Nightcap

  1. Whatever Happened to Patient Confidentiality? Irfan Khawaja, Policy of Truth
  2. What Critics Don’t Understand About Gun Culture David French, the Atlantic
  3. Making Guns Obsolete Frances Woolley, Worthwhile Canadian Initiative
  4. Can Libertarianism Be A Governing Philosophy? Michael Munger, Law & Liberty

A quick update, then liberals and democracy, followed by racism and rectification

I have been busy. I picked up a gig at RealClearHistory as a ghost editor, and I also write a weekly column there. I have a baby daughter (she’s 8 months old). My musings here at NOL have been sporadic, but I have been learning a lot. Bill (morality) and Federico (law and liberty) continue to make me smarter.

Tridivesh’s thoughts here so far have a heavy element of “democracy-is-best” in them. I find this to be the case for most South Asian liberals. I wonder if this community has had the time to ponder Fareed Zakaria’s The Future of Freedom…, which laments the fact that most liberals worldwide have eschewed the “liberty” in the phrase “liberty and democracy.” One is surely sexier than the other, and there are probably many pragmatic reasons for this phenomenon, but it’s worth repeating here that you can’t have liberal democracy without liberty. China holds elections all the time, but this doesn’t mean the Chinese are free.

Michelangelo’s most recent note on race is interesting, as always. If it’s just the US Census then I agree with Thomas: eliminate the race question. Matt’s idea, to leave it blank and let people fill it in themselves, is a good idea, too, provided the Census continues to pry too much into the lives of people living in the US. As far as race goes in general, the American system of classification is ridiculous (to be fair to us, I’ve never come across a good one). However, the US government has committed some heinous crimes based on racist classifications and as such I do think there is a need to continue asking race-based questions. My approach would be much simpler, though. I’d ask:

  • Do you identify as African-American?
  • Do you identify as Native American?
  • Do you identify as Japanese-American?

That’s it. Those are the only 3 questions I would ask about race. These three groups are groups because the US government, at some point in time, classified them as such and then proceeded to implement plans that robbed them of their labor, or their land, or their freedoms, and justice has yet to be delivered.

From the Comments: Foucault’s purported nationalism, and neoliberalism

Dr Stocker‘s response to my recent musings on Foucault’s Biopolitics is worth highlighting:

Good to see you’re studying Foucault Brandon.

I agree that nationalism is an issue in Foucault and that his work is very Gallocentric. However, it is Gallocentric in ways that tend to be critical of various forms of nationalist and pre-nationalist thought, for example he takes a very critical line of the origins of the French left in ethnic-racial-national thought. Foucault does suggest in his work on Neoliberalism that Neoliberalism is German and American in origin (which rather undermines claims that Thatcherism should be seen as the major wave). He also refers to the way that Giscard d’Estaing (a centre-right President) incorporated something like the version of neoliberalism pursued by the German Federal Chancellor, Helmut Schmidt, from the right of the social democratic party.

Thoughts about the relations between France and Germany going back to the early Middle Ages are often present in Foucault, if never put forward explicitly as a major theme. I don’t see this as a version of French nationalism, but as interest in the interplay and overlaps between the state system in two key European countries.

His work on the evolution of centralised state judicial-penal power in the Middle Ages and the early modern period, concentrates on France, but takes some elements back to Charlemagne, the Frankish king of the 8th century (that is chief of the German Franks who conquered Roman Gaul), whose state policies and institutional changes are at the origin of the French, German and broader European developments in this are, stemming from Charlemagne’s power in both France and Germany, as well as other areas, leading to the title of Emperor of the Romans.

Getting back to his attitude to neoliberalism, this is of course immensely contentious, but as far as I can see he takes the claims of German ordoliberals to be constructing an alternative to National Socialism very seriously and sympathetically and also regards the criticisms of state power and moralised forms of power with American neoliberalism in that spirit. I think he would prefer an approach more thoroughly committed to eroding state power and associated hierarchies, but I don’t think there is a total rejection at all and I don’t think the discussion of ordoliberalism is negative about the phenomenon of Germany’s role in putting that approach into practice in the formative years of the Federal Republic.

Here is more Foucault at NOL, including many new insights from Barry.

Foucault’s biopolitics seems like it’s just a subtle form of nationalism

I’ve been slowly making my way through Michel Foucault’s The Birth of Biopolitics, largely on the strength of Barry’s recommendation (see also this fiery debate between Barry and Jacques), and a couple of things have already stood out to me. 1) Foucault, lecturing in 1978-79, is about 20 years behind Hayek’s 1960 book The Constitution of Liberty in terms of formulating interesting, relevant political theory and roughly 35 years behind his The Road to Serfdom (1944) in terms of expressing doubts over the expanding role of the state into the lives of citizens.

2) The whole series of lectures seems like a clever plea for French nationalism. Foucault is very ardent about identifying “neo-liberalism” in two different models, a German one and an American one, and continually makes references about the importation or lack thereof of these models into other societies.

Maybe I’m just reading too deeply into his words.

Or maybe Foucault isn’t trying to make a clever case for French nationalism, and is instead trying to undercut the case for a more liberal world order but – because nothing else has worked as well as liberalism, or even come close – he cannot help but rely upon nationalist sentiments to make his anti-liberal case and he just doesn’t realize what he’s doing.

These two thoughts are just my raw reactions to what is an excellent book if you’re into political theory and Cold War scholarship. I’ll be blogging my thoughts on the book in the coming weeks, so stay tuned!

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.