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.]

Charter cities aren’t all that libertarian, and I doubt they’ll work either

Is economist Tyler Cowen bullish on a new charter city in Honduras? He says he’ll go and report on it if it ever gets off the ground. But let’s be honest with ourselves, it’s not going to ever get off the ground. Why? Two reasons. First (from Cowen’s excerpt):

It has its own constitution of sorts and a 3,500-page legal code with frameworks for political representation and the resolution of legal disputes

This is too many rules and not enough boundaries. A constitution of sorts? 3,500 pages of legal code, based off of…what, exactly? Some guys decided that they could purchase sovereignty (not a bad idea, actually) and then create – out of thin air and by using heterodox economic theory as their guide – all of the rules and regulations that this sovereign body would need to govern effectively? Did I get this right?

Second, when has a top-down central planning ever worked for something like this? Top-down central planning barely works for corporations when they reach a certain size threshold, and we all know how well this type of planning works in the public sphere. Even the U.S. federation – which can be considered a sort of top-down plan from a certain point of view – was built on top of already existing politico-legal institutions. Hong Kong and Singapore, two city-states that have long been the apple of libertarian eyes, were around long before they became city-states in the Westphalian state system. The British just grafted their imperial system onto already-existing indigenous politico-legal orders.

This charter city in Honduras is (I am assuming) not grafting itself onto an already existing indigenous politico-legal order. It is trying to forge an entirely new system out of thin air. That’s too rich for my blood.

Nightcap

  1. Hong Kong voices in American politics Hui & Shum, Diplomat
  2. Who would rather stay at home alone? Elizabeth Brina, Gulf Coast
  3. The Carolingians, the Church, & constitutions (pdf) Andrew Young, SSJ
  4. How common is democracy throughout history? David Stasavage, Aeon

Exit, federation, and scale (from the comments)

I think you make an interesting point, but allow me a bit of push back. The world government would set the rules of how federated entities would interact. This would be like standards and protocols. You are correct that a set of shared standards can allow for enhanced competition, of the good variety (what I call constructive competition). This would be a good thing.

However the same shared standards would lock in the world to one set of protocols, thus reducing the discovery via variation and selection of the shared institutions themselves.

Thus we would see more short range constructive competition between states, and less long term exploration of new and potentially better institutional standards.

This is from Rojelio. He is pushing back against my argument in favor of world government from a libertarian point of view. He’s right, of course. There’s two points I need to do a better job of clarifying when I advocate for world government from a libertarian point of view:

  1. I don’t think federating the entire world is a good idea. I think the piecemeal federation of political units is what libertarians ought to aim for. (I think the US interstate order is the best avenue for achieving this aim.) A healthy “world federation” would govern (say) 85% of the world’s population. This brings me to my second point I need to clarify.
  2. The importance of exit needs to be addressed and institutionalized in a proper federal order. This is difficult to do, but not impossible. My argument is to make exit difficult, but not too difficult. The difficulty of exit should be somewhere on the scale between a constitutional amendment (too difficult) in the US order and Brexit (too easy) in the Westphalian order.

The bottom line is that a more libertarian world will likely be composed of a large federal polity that protects the freedoms of the vast majority of its citizens better than most nation-states do today. The other 15% of the world would live under despotism (which will center around “cultural cores”), or under sparsely-populated democratic republics (i.e Australia), or within free-riding microstates that otherwise rely on the protection of the large federal unit.

If, say, England, Tamaulipas, and Duyên hải Nam Trung Bộ were to federate with the United States tomorrow, these polities would not be agitating for exit after 10 years of experimentation in self-governance. If, say, Texas or Vermont wanted to exit after 10 years of federation with those 3 polities, they would have to go through a process (via all of the legislative branches involved) to do so. A simple majority vote would be disastrous. It is unlikely, then, that Texas or Vermont would leave such a federation. Pure freedom would be unrealized, but billions of people would be much freer.

Afternoon Tea: Allegory of the Peace of Westphalia (1654)

This is by Jacob Jordaens, a Flemish painter, and it is not even one of his most famous paintings. Here’s Jordaens’ wiki page. The Peace of Westphalia ended the 30 Years War. The Habsburgs weren’t necessarily the bad guys. The Peace of Westphalia didn’t establish state sovereignty in a system of equal (in theory) nation-states within an interstate order. The Peace of Westphalia solved a religious constitutional question within the Holy Roman Empire and ended the war between the Dutch and the Spanish. The Westphalian state system that we speak of and live in today is not appropriately named. Here’s the best article (pdf) I’ve read on the Peace.

If we were to appropriately name the interstate order that we have today, it would be named the Napoleonic interstate system. Alas. It’s called the Westphalian system. The US, and a couple of other big states like China and Russia, have trouble fitting in to the “Westphalian” state system because they established their own regional state systems long before being wrangled into European imperial entanglements. It goes without saying that polities in Africa, Asia, and the Americas also had trouble fitting into the “Westphalian” state system.

What if one of the regional orders established by the US, Russia, or China were embraced as the new global order, instead of the “Westphalian” (really Napoleonic) system based on nation-state sovereignty? I don’t think this would be a bad thing, and in their own way, the US, China, and Russia have been trying to do this since the end of World War II.

Nightcap

  1. Middle class: questioning the definitions Mary Lucia Darst, NOL
  2. On Romney’s child allowance proposal Scott Sumner, EconLog
  3. On the American constitutionalism, and nationalism Dennis Coyle, Modern Age
  4. Ottomanism, nationalism, and republicanism (IV) Barry Stocker, NOL

Why is the Republic of India a Civilization-State?

Why is the Republic of India a Civilization-State?

On 26 January 1950, India’s Constitution came into effect amidst severe apprehensions about India’s balkanization. So, seventy-one years later, the Indian democratic republic may still appear to be a historical accident, but it is not. Here is why:

India has always been a fertile territory for experiments in governance, but surprisingly, there is no more than a casual reference to the ideas underlying non-western civilizations in Political Science courses or History of Political Thought. The neglect of Indian polity is particularly striking, for apart from Western political thought, Indic political ideas comprise the most extensive and most crucial body of political philosophy. Moreover, these political ideas are integral to Indic civilization—one of the only surviving non-western civilizations. Today, we know that Western ideas have clearly impacted Indian political thought. Still, what is generally not realized is that India has also contributed to Western political thinking in all probability. 

The problem of scant attention given to Indic political thought compared to Indic religion and philosophy was partly remedied with the re-discovery of Kautilya’s Arthashastra —the Indic equivalent of the Machiavellian, The Prince. However, other great works like Kamandaki’s Nitisara— Elements of Polity, the Raj Dharma (administrative ethics) section of the epic, Mahabharata, the epic Ramayana, Digha Nikaya (Collection of Long Discourses), and to some extent antiquated Hitopadesha (Beneficial Advice) also deal with an Indian way of thinking about the state-society relationship. 

Drawing from these essential texts and Indic political thinkers, the king’s role is viewed mainly as an administrator—the ruler is not an agent of social change. This view is radically different from its counterparts in the West. In Western political theory—Rousseau, Locke, and Hegel—political order means the subjugation of society to the state. In Indian tradition, the society and culture are always supreme, and the ruler is accountable to dharma (Indic ethics—a common internal bond) and society. Therefore, the conception of the “state of nature” in Hobbes and Rousseau is irrelevant to Indic tradition because ethics and civilization preceded the state’s development in India. In the Ramayana and Mahabharata’s grand narratives, an esoteric reading accounts for personal ethics and the path to profound spiritual freedom. But an exoteric view informs us of political power, administrative ethics, and the limits of provisional freedom. According to these epics, the state is created to protect against the disintegration of social order, and the state is given only those powers required to do so. Thus, a ruler’s powers are not like those of the Leviathan conceptualized in Hobbes.

Despite these radical Indic political concepts, the popular view on ancient and early medieval India is that it was merely a region invested in despotism with no knowledge of Freedom or Liberty. Hegel assumed that only one tribe of men were free in Asia, and others were their slaves. It is worth noting that for almost thousand eight hundred years after the Greek republics collapsed, the Western world also lived through monarchical despotism and tyranny. Likewise, apart from ancient Greece and Rome, in India too, there existed republics and proto democracies. A fair study of Indic history informs you that ancient Indian republics were not only in existence from the 8th century B.C. to 4th century A.D., but they were doing some fascinating experiments in state-society relations. With time, at least four different forms of constitutions emerged. 

  1. Arajya: A political community without a king. These communities self-governed using Dharma texts (Indic ethics).
  2. Ganarajya: A state or a political community ruled by a ‘gana’ or an assembly of people.
  3. Youvarajya: A political community ruled by a crown prince.
  4. Dvairajya: A political community ruled by two kings.

For various reasons, Ganarajya and Youvarajya systems thrived much more than the other two. 

The ‘Gana‘ seems to be the earliest Indic political forum of the entire community (Jana). The Jana’s formulation of political policies rested with the Samiti (Sanskrit for Committee) and the Sabha (an assembly of elders). Over time, these Ganarajya states developed into Janapada—a self-sufficing political and cultural unit. Every Janapada had its peculiar dialect and customs developed from regional interpretations of Indic Dharma (ethics). Several of these Janapada states even joined hands to form a federation of Mahajanapada (mega-Janapada). Over time, however, powerful Indic monarchies who performed the state’s integrative functions better than the assemblies of Gana overwhelmed them. Fortunately, imperial states incorporated these republics into their fold; republics were not entirely stamped out, even after repeated invasions by the Turks, Mongols, Portuguese, French, and the British. 

The Gana-Sabha system emerged from the shadow as soon as these imperial powers became weak. The Sabha system was active in the village setting as Panchayat (village associations) that included both notable big men and peasants, in contestation with each other and in opposition to the state. Here, different qualities of people and opinions were tested, rather than the scene of a pronunciamento by elders. Even the British acknowledged this system. Henry Maine, who was influenced by J. S. Mill, was sent to India in the 1860s to advise the British government on legal matters. He came across several accounts of thriving indigenous systems of autonomous village governments, whose structure and practice shared many characteristics of participatory democracy. Later, Maine articulated a theory of the village community as an alternative to the centralized state. In the Panchayat system, De Tocqueville saw an ideal model of a society with a limited state. He planned to study it, comparable to Democracy in America but overwhelmed by his political duties, he never managed a trip. So, while Indian electoral democracy was only instituted in the first half of the twentieth century, the practice of public reasoning, deliberation, and toleration of a plurality of ideas is a much older phenomenon, dating back to ancient Indic traditions. 

During the 1947 Constituent Assembly Debates of post-colonial India, there was an Alexander Hamilton vs. Thomas Jefferson sort of debate between Gandhi’s idea of Indic village-style, decentralized administration vs. B. R. Ambedkar’s —the principal architect of the Indian constitution—healthy centralized state. Although Ambedkar’s view prevailed, the village democracy did not entirely disappear from the Indian constitution. India officially called itself Bhārat Gaṇarājya, and the first two words of the Indian national anthem honor Jana and Gana. Hence, the constitutional democracy of the Indian republic was not an accident; it is a sui generis phenomenon reflecting the plural character and age-old but essential values of Indic civilization. Therefore, modern-day India is a Civilization-State. The West can only describe it from the outside, but it is for India to interpret herself from within—an ongoing process.  

Finally, it merits mentioning that Professor of international history Arnold J. Toynbee reminded the world, “India is a whole world in herself; she is a society of the same magnitude as our Western society.”

To know more about India’s constitutional debates, check this excellent ten-episode series. Subtitles are available in English.

Nightcap

  1. Modern conquest and the India-China border Dan Altman, War on the Rocks
  2. The political economy of feudalism in medieval Europe (pdf) Andrew Young, Constitutional Political Economy
  3. Medieval modernity: On citizenship and urbanism in a global era (pdf) Alsayyad & Roy, Space & Polity
  4. Constitutional political economy, democratic theory and institutional design (pdf) Georg Vanberg, Public Choice

Nightcap

  1. Trotsky and the wild orchids Richard Rorty, P&SH
  2. Radicalising Hayekian constitutionalism Jonathan Crowe, UQLJ
  3. De facto states in the international system Scott Pegg, WP #21
  4. The WEIRDest people in the world? Nicholas Guyatt, Guardian

Nightcap

  1. The American Founders’ priceless legacy Myron Magnet, New Criterion
  2. The gonzo constitutionalism of the American Right Corey Robin, NYRB
  3. Britain at the end of history Robert Saunders, New Statesman
  4. Law’s disorder in Nigeria Marc-Antoine Pérouse de Montclos, LMD

The Westphalian myth

Was the Peace of Westphalia and its implications for state sovereignty one big myth?

The apparently ineradicable notion (repeated even by many recent historians of the war) that the Peace of Westphalia sanctioned the “sovereignty” of Switzerland and the Netherlands and their independence from the empire demonstrates this. In the case of the Swiss it is based on a willful (and sometimes uninformed) interpretation of the relevant clause in the treaties, giving it a meaning that its drafters did not intend. And as to the Dutch the treaties do not even deal with them.

The complete autonomy of Switzerland vis-a-vis the empire was uncontroversial in practice, and the Swiss were reluctant to have anything to do with the peace congress. If they eventually allowed themselves to be represented there by the burgomaster of Basel, it was because this city had only joined the Swiss confederation after the other cantons had had their autonomy recognized in a treaty of 1499. The supreme courts of the empire (more particularly, the Imperial Cameral Tribunal) did not consider Basel to be exempt from their jurisdiction and allowed lawsuits against Basel and its citizens, a situation that had caused continual irritation. For this reason Basel insisted on having the immunity of the entire confederation reconfirmed in such a way that it would cover Basel, too. The request was granted, and a clause to that effect included in the treaties. This clause, which explicitly names Basel as its initiator and beneficiary, restates the immunity (exemptio) of the Swiss cantons from the jurisdiction of the empire and their complete autonomy (plena libertas).

Read the rest (pdf). All you Holy Roman Empire fans will enjoy it, too.

Nightcap

  1. Hayek (Streeck, Hazony) and world federation and colonialism Eric Schliesser, Digressions & Impressions
  2. The new secessionism Jason Sorens, Modern Age
  3. Winning the court, losing the constitution John Grove, Law & Liberty
  4. The quest for German national identity Anna Corsten, JHIBlog

Nightcap

  1. The meaning of Amy Coney Barrett Ross Douthat, NY Times
  2. What does Ruth Bader Ginsburg mean for women? Amy Wax, CRB
  3. Talking about a constitutional restoration Titus Techera, L&L
  4. Give it away (Marcel Mauss) David Graeber, Free Words

Nightcap

  1. The high stakes of quantum computing Edward Luttwak, American Affairs
  2. A metaphor for the socialist calculation debate Rick Weber, NOL
  3. The American constitution and its consequences (pdf) Mittal, et al, NBER
  4. NATO’s strategic malaise Sara Bjerg Moller, War on the Rocks

The Vexing Libertarian Issue of Transition

I have appointed myself an old sage to the world. When your knees are creaky and every snotty eighteen-year-old treats you patronizingly, the least you can do to compensate is award yourself wisdom. Anyway, long story short, it’s a good excuse to spend much time on Facebook. I feel I am rendering a public service. I am continuing my teaching career there. It’s unpaid but the conditions are much better and all the students actually want to be in class.

Of course, it’s also true that Facebook is addictive. It’s not a bad addiction. For this old guy, it’s almost incredible to have frequent conversations with an MD in Pakistan, my niece in India, an old girlfriend in Panama, a young friend’s wife in Japan, and of course, many different kinds of French people. I even have a Facebook friend who lives in the mountains of Algeria; we have lively talks in French. Recently, a young woman who described herself as a Myanmar village girl reached out. (I know what you are thinking but if she is really one of those internet sex trolls, I salute the originality of her marketing strategy.) At all times a day and night, I have at least one Facebook friend who is not asleep. It’s pleasant in these days of confinement.

The same confinement, perhaps, slows me down and makes me more likely to tally up everything. As a result, a new impression has pierced my consciousness. Expressing contempt for democracy seems to be in vogue among people who identify as libertarians (with a small “l,” big “L” Libertarians have nearly vanished from my world. It could just be me.) This contempt reminds me that I have been asking the same question of libertarianism for now about fifty years, all with not much success.

I refer to the question of transition. I mean, what is it supposed to look like moving from wherever we are, in terms of governance, to a society with a drastically diminished government interference in individual lives? I have been receiving evasive answers, answers that don’t make even superficial sense, and swift escapes effected by changing the subject.

Let me say right away that I am not looking for a crushing reading assignment (a common punitive, passive-aggressive maneuver among intellectuals). Mine is a simple question. One should be able to sketch a rudimentary answer to it. Then, it would be up to me to follow through. Then, no excuse!

To my mind, there are only two extreme transition scenarios. One is the Somali scenario. The state falls apart under its own incapacity to limit internal aggression. It disappears or nearly so. When the point is reached where government authority extends only three blocks from the presidential palace to the north and east, and one block from the south and west, you pretty much have a stateless society. Goal reached!

The second scenario is a gradual change from the current “democratic” arrangements. I mean by this fair and reasonably honest elections followed by a peaceful transfer of power. I mean freedom of expression. And, disturbingly, this also includes courts of law. This is disturbing because courts without enforcement of their decisions are not really courts. This fact implies the threat of coercion, of course.

Now, I can imagine a situation like right now with the Corona Virus epidemic when governments (plural) demonstrate on a large scale their inability to do the obvious. The citizens often react to this sort of demonstration by asking for better and more government. However, it does not have to be that way. The combination of wide communication through the internet and – like now – of enforced leisure – may switch the dial. It’s conceivable that large numbers will get the idea that government that is at once heavy-handed, expensive, and incapable is not a good answer to much of anything. With that scenario one can imagine a collective demand for less government.

Strangely, this sort of scenario may be on display in France now, as I write. Well, this is not so strange after all. A deeply statist society where govt absorbs 55% of GDP and up may be exactly the best place to figure out that more government is not the answer. From this thought to the idea that less government may be the answer there is but one step. My intuition though is that it’s a big step. That’s because few people understand markets. No one but a handful of college professors seems to have read the moral philosopher Adam Smith. (Tell me that I am wrong.)

So, I would like for those who are more advanced than I am on this issue of transition (a low bar) to engage me. I am not interested in the same old ethical demonstrations though. Yes, the state is an instrument of coercion and therefore, evil. I already know this. In the meantime, the First Amendment to the Constitution of the United States does a fair job of protecting my freedom of speech, my freedom, of thought, my freedom of religion. I am not eager to leave this behind for the complete unknown. Are you? Why? How?