Nightcap

  1. Democracy doesn’t matter to the defenders of ‘economic freedom’ Quinn Slobodian, Guardian
  2. After the Berlin Wall: whither democracy? Sabine Beppler-Spahl, spiked!
  3. How Europe stumped Britain’s conservatives Geoffrey Wheatcroft, New Republic
  4. Don’t forget the one-fifth clause (impeachment, American-style) Eugene Volokh, Volokh Conspiracy

There is no such thing as a sunk cost fallacy

The advocates of the sunk cost fallacy state that, since an agent ponders in his decisions marginal costs against marginal incomes, any consideration upon sunk costs would be irrational. Notwithstanding, as soon as we accept the arguments of the said sunk cost fallacy and try to put its recommendations into practice, we discover that we have just become an easy prey of a more severe kind of irrationality: the one that concerns with intransitive preferences.

Jon Elster exemplifies the sunk cost fallacy with the case of a huge snowfall that pours onto the city the very same day we were planning to attend a theatre play whose tickets we had bought the previous days and are not refundable. Elster points out that, since our attendance to the play will not bring the money we had paid for the tickets back, there is no reason to make the decision on whether or not to attend the play on the basis of the sunk costs of the tickets. The correct reasoning should take into account only the cost of enduring the heavy snowfall in order to reach to the theatre where the play would be performed. Nevertheless, the same Jon Elster makes the disclaimer that a zealous observance of avoiding the sunk cost fallacy could lead to make choices following non transitive preferences.

If we change our mind every day, discarding previous decisions and assuming a new direction just because a new opportunity has arisen, we risk to end up in the ruin. Transitive preferences tend to assure the agent of a certain profit and non transitive ones exposes him to losses. In evolutionary games simulations, agents who act according to transitive preferences outshine agents who do not. It seems, then, that the rational agents walks on the edge of the razor, between sunk cost fallacies and non transitive preferences.

That is why there is not such a thing as a sunk cost fallacy. The rational agent, to be such, must ponder a whole plan against an alternative plan in a whole as well, which in some cases, both of them last several periods of time. It is true that in the “very short term” all past costs are sunk and that it only matters the opportunity costs, but most decisions are made in the short term, which lasts more than just a moment. Otherwise, the very concept of transitive preferences would lack any meaning.

Of course certain costs are sunk: if the flux of earnings that a good of capital produces just covers the variable costs of putting it to work (for example, a truck whose earnings just pay for the gas and the salary of the driver), the more rational choice is to use it until it becomes full obsolete and do not replace it with a brand new unit.

But the sunk cost fallacy does not provide a criterion to distinguish sunk costs from just mere costs of a single plan. What a rational agent with transitive preferences discards in his considerations will be named sunk costs, and what he does not, will not. A pure tautology.

Even the snowfall case does not explain satisfactorily the said fallacy: when the agent bought the tickets, their cost were inferior to the income of watching the play, but a heavy snowfall adds not a marginal cost but increases the marginal cost of the plan composed by the cost of the tickets plus the cost of enduring the snowfall.

Notwithstanding, the sunk cost fallacy derives into a philosophical puzzle: what is the subject? How are relations between time and being and between being and becoming. It seems that our permanence as rational agents depends mostly upon not to put into practice the opportunistic approach of the sunk cost fallacy ad libidum.

Moreover, the matter has a political strand: constitutional constraints demand from the authorities to take into account the weight of certain principles in their decisions and those principles could be disregarded if the decisions are purely made on the basis of expediency. If it is the same authority the one who decides whether certain constitutional principle should be followed or not, then all the citizens would be left exposed to arbitrariness.

The considerations about the length of the period a plan should last, the responsibility upon the consequences of our past choices, and the weight of the constitutional principles on the legitimacy of political decisions, become rational if they are not pondered by an isolated agent but in the framework of the interplay among several agents.

This framework of human interaction upon which the agent’s choices take place had been characterised by Friedrich A.Hayek as a spontaneous, or abstract or extended order. He proposed to leave the term “economics” to the explanation of the choices made by an isolated agent and to establish the science of “catallaxy” as the study of the complex phenomena involved in the said structure of interactions. In the same line, James M.Buchanan labelled the interplay of individual agents as “symbiosis” and proposed to redefine the task of the political economy to its study.  More recently, in 2009, Douglass C. North, John Joseph Wallis and Barry R. Weingast, in Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History, coined the term “open access orders” to analyse the same set of events. To this stream of thought, it also belongs Vernon L. Smith’s own account of the concept of ecological rationality.

Catallaxy, Symbiosis, Complex Phenomena, and Open Access Order or Ecological Rationality are some of the aspects of what Karl Popper once called “critical rationalism” and supersedes old problems such as those of the instrumental or subjective reason. An authentic “toolbox,” ready to be used.

Be Our Guest: “Of Monies and Juries and Freedoms”

Be Our Guest is a new, experimental series at NOL. Basically, NOL is invite-only but you can, and should, submit your thoughts to us. The latest piece is by Michalis Trepas, a Greek national working in the financial sector. An excerpt:

The judicial system was reluctant to intervene, out of respect of the separation of powers (according the Weimar Constitution, currency matters were reserved for the parliament). So, at first, the courts upheld the nominalistic principle and refused to accept a revalorisation of debts. But then, something began to change in the courts’ reasoning. The currency’s slide prior to 1921 could be attributed to the conditions of the “war economy”, whose burden was to be shared by everyone in the country. The unrestrained fall thereafter, the courts said, was a monetary phenomenon, punishing “blindly and unpredictably” only the creditor class.

If you cannot guess by now what Michalis is writing about, read on! If you have figured out what the subject of his piece is about, read on, as it only gets more interesting.

There are cultural and geopolitical considerations to think about here, too, in regards to Greece and Germany and financial markets and constitutionalism.

Mass shooting in perspective

Each of the past few years, about 35,000 Americans died in traffic accidents. This fact should be taken into account when considering recent massacres of civilians. I was wondering if anyone else would be cold hearted enough to go that way. So I waited a few days to comment on the massacres in Gilroy, El Paso, and Dayton, to avoid duplicating others’ commentaries. Plus, I have technical difficulties associated with my current location. Please, comment or wave if you see this.

Of the approximately 35,000 victims about half died in accidents involving alcohol. I will assume, against my thesis, that only 10,000 people each year died indirectly or directly because someone drank too much alcohol and drove.

How to count victims of mass shootings has become – strangely enough- controversial. Nevertheless, I am quite certain that shootings, specifically, of strangers for other than greed, or jealousy, or disappointed love have not caused 10,000 deaths in any of the past few years, not even close.

Do you agree; do you see where I am going?

So drunk drivers kill many more people – about 10,000 annually – than mass shooters. The victims of the ones are just as dead as the victims of the others; the loss and grief associated with the ones must be similar to those associated with the others. The deaths from one cause seem to me to be as meaningless as the deaths from the other. (That’s by contrast with the death of a firefighter in the line of duty, for example.)

A rational collective response should give priority to the avoidance of the many deaths from drunk driving over the much fewer deaths caused by mass assassins. Yet, the public reactions of the left are exactly the reverse of those rational expectations. In part, this inversion of priorities is due to the magnification the media affords mass shootings but not the slow massacre on the roads. In part, it may be due to the sometimes concentrated nature of the death tolls by mass shooting. This explanation, however, has only limited value because the small death toll at the Gilroy Garlic Festival, for example, was given much more publicity than is conceivable for any drunk driving accident with three lethal casualties.

This irrational ordering of priorities is made all the more puzzling by the fact that it would be much easier to reduce the number of deaths from drunk driving than by domestic mass shootings. Two reasons. First, people in jail can’t kill anyone with a car. The second reason is a little more subtle; bear with me.

Drunk drivers fall into two main categories, alcoholics who think they have to drive, and self-indulgent slobs. My intuition is that there are many more of the latter than of the former (especially among the young, who are overrepresented in car accidents) but I don’t have any figures. Self-indulgent slobs are capable of rational calculus. If the relevant punishment is severe enough and certain enough, they will become less self-indulgent. I used to be one of them. When the penalty for drunk driving went from about $100 to several thousand during my lifetime, I discovered that I could take a taxi, or pay a friend to drive me back, or drink at home. The quality of my life declined but it was worth it. It’s likely that my fear of heavy punishment saved someone’s life over the long run.

So, a credible remedial scheme is simple: withdrawal of driver’s license for a long period on the first offense associated with heavy fines for driving without a license. A significant jail term without possibility of parole would punish each subsequent infraction. Again, imprisoned drivers don’t kill anyone through their drunk driving. That’s a valid reason in itself to keep them locked up for a long time. It’s probably also economically reasonable.

So, I wonder why is there not a passionate public outcry on the political left and among its media partners in favor of a nation-wide remedial endeavor of the kind I just described?

Drunk driving kills many more Americans than do criminal mass shootings of the Gilroy, El Paso, and Dayton kind. This, although suppressive remedies to drunk driving are conceptually straightforward. My friend Vernon Bohr pointed out in a comment on Facebook that accidental drownings of children alone claim more lives of all categories of Americans than do mass shootings. There are better priorities.

The indifference of the left to those more important preventable causes of mortality as compared to its display of strong collective emotion with respect to sudden death by shooting seems strange, on the surface. This strong emotion is usually, almost always associated with urgent calls for some sort of federal gun control.

The contrast is made all the more striking by the following legal facts: First, the regulation of behavior that is potentially harmful to others – such as driving automobiles – falls squarely within the purview of state legislatures, primarily, of Congress, secondarily. Number two, driving is nowhere a right, except by default. Possessing weapons, by contrast, is a right explicitly guaranteed by the US Constitution, and twice reaffirmed by the US Supreme Court.

So, why would the considerable emotional and political resources of the left, aptly guided by the mass media, be expanded on the deaths of comparatively few, on a problem that is difficult to understand, one whose resolution would also encounter strong legal obstacles? Why this relentless emphasis when there are obvious, bigger, more rational objects of collective compassion?

I am thinking of two answers. One, the unpredictability of shooting events make them seem more disruptive than the somewhat routinized highway deaths, including by drunk drivers. The logical implication of this explanation is that if mass shootings became more frequent, they would appear more routine, and thus, less disruptive, and less deserving of left-wing attention. Note that there is a long way to go between the few hundred annual casualties by mass killings, and the 10,000 I attribute to drunk driving alone.

Thus, mass shootings garner both attention and emotion – including on the left – precisely because they are comparatively rare. If this were correct, attention and emotion would diminish with an increased frequency of such events. That is not a trend I observe. Others may see it.

Two, the left, and its media component, may focus on mass shootings in preference to making more rational choices, not in spite of the legal obstacles in their path but because of them. In this perspective, the focus on mass shootings may not be an exercise in misguided compassion, but a means to a higher end.

Americans are, on the whole, much attached to their Constitution. Modifying it is an arduous and uncertain task. Shortcuts to this effect are much appreciated. It would be difficult to find a more effective shortcut than the guided emotionalism the left supplies on the occasion of each mass shooting perpetuated by an American who is not also a violent jihadist. The spectacle of perfectly innocent victims, including children, cut down by someone seemingly exercising his constitutional right to bear arms must be the most formidable nonrational argument against that constitutional right. It can be mustered to sidestep collective choices – such as further reductions in deaths by drunk drivers – that would make the most sense from the standpoint of simple compassion. Thus, a one tenth reduction in deaths by drunk driver, and the corresponding shrinking of human misery, would do about twice more good than would the total (total) elimination of mass shootings.

The outburst of emotionalism expertly guided by the media we witnessed following three civilian mass shootings in quick succession is not about compassion, it’s about power. Every reduction in the autonomy of individuals increases the power of government, of those who are in charge of it through legitimate political means, and of the permanent bureaucracy.

Incidentally, I suspect there must be libertarian solutions to the vast and continuing problem of death by drunk driver, solutions that don’t involve putting people in jail. I don’t know what those are. I would like to hear about them.

Introducing: the Federation of Free States, an ongoing thought experiment

The most popular article I have ever written, in terms of views, has been, by far, “10 Places that Should Join the U.S.,” a short piece at RealClearHistory pining for an enlarged geographic area under the American constitution.

This is not a strange concept for longtime NOL readers. I’ve been pleading for stronger political ties between the U.S. and its allies for quite some time. There has been lots of push back to this argument, from everywhere. So I’m going to spend some more time explaining why I think it’d be a great idea for the American constitutional regime to expand geographically and incorporate more political units into its realm. Here is what an initial “federation of free states” would look like in, say, 2025:

NOL map United States in 2020 with 79 states

I’ve incorporated two of the strongest voices against such a federation, NOL‘s very own Michelangelo and Edwin. Michelangelo’s Pacific and Caribbean bias is somewhat acknowledged, and Edwin’s pessimistic socio-linguistic argument against adding continental European states to the federation has also been incorporated.

I’ve also tweaked the “10 places” that I originally saw fit to join the US.

In the map above I’ve got parts of Canada (the 3 “prairie provinces”) and Mexico (3 “ranching states”) joining the American federation. The prairie provinces of Canada – Alberta, Saskatchewan, and Manitoba – would be admitted as separate “states,” and would thus get to send 2 senators each to Washington. According to my napkin calculations, Alberta would only be sending 3 representatives to DC while Saskatchewan and Manitoba would only get 1 representative each in the House. The ranching states of Mexico – Coahuila, Tamaulipas, and Nuevo León – wold likewise be admitted as separate “states,” and would also get to send 2 senators each to Washington. These three states, which have plenty of experience with federalism already, are a bit more populated than the prairie provinces, but not by much. Nuevo León would send 4 representatives to DC, while Tamaulipas would send 3 and Coahuila, 2. Why be so generous to these polities? Why not lump them together into one unit each – a Mexican one and a Canadian one? Mostly because these new states would be giving up a lot to leave their respective polities. Military protection and the rule of law wouldn’t be enough, on their own, to persuade these states into joining the Federation of Free States. They’d need disproportionate representation in Washington, via their Senate seats, in order to leave Canada and Mexico and join the republic.

Antilles (Cuba, Dominican Republic, US Virgin islands, and Puerto Rico). This is a random collection of polities, I admit, and lumping them together into one “state” is even more random. But lump them together I would. On their own I don’t think these polities would do well in a federated system, even with their own Senate seats. There’s just not enough historical parliamentary experience in these Caribbean states. If they were lumped together, though, they’d be a formidable presence in Washington. While Antilles would only get 2 Senators, its combined population would be enough to send 19 representatives to the House, more than Florida, New York, and a gang of other influential states in the current union. At the heart of Antilles joining the US as a “state” in its union is a great trade off: sovereignty in exchange for the rule of law and democratic self-governance.

IsPaJo. Israel, Palestine, and Jordan would also be incorporated into 1 voting state, though I don’t have a good name for this state yet. This isn’t nearly as crazy as it sounds. The populations of these 3 polities would benefit immensely from living under the US constitution. Questions of property would be handled fairly and vigorously by the US court system, which is still widely recognized as one of the best in the world when it comes to property rights. Concerns about ethnic cleansing or another genocide would be wiped away by the fact that this new state is now part of the most powerful military in world history. Sure, this state would only get to send 2 Senators to Washington, but its representation in the House would be sizable: 18 representatives.

England and Wales (but not Scotland or Northern Ireland). England would be the crown jewel of the federation free states. The United Kingdom is dying. Scotland wants out. Northern Ireland wants to rejoin Ireland. In England, London is thriving but the rest of the country is suffering from the effects of de-industrialization. The kingdom’s once-vaunted military depends on the United States for nearly everything. Adam Smith put forth a proposal in his 1776 treatise on the wealth of nations that’s worth re-discussing here. Smith argued that the best way to avoid a costly war with the 13 American colonies was to give them representation to go along with taxation. He proposed that the U.K.’s parliament should add some seats and give them to North American representatives. This way both sides could avoid the whole “no taxation without representation” dispute. Smith further opined that, were this federation to happen, the center of the British empire would inexorably move in the direction of the North American colonies. England and Wales would both get to send 2 Senators to Washington, giving the Isle of Liberty 4 Senators in the upper house. Wales wouldn’t get much in the way of the lower house (only 2 representatives according to my napkin calculations), but England, in exchange for its sovereignty, would become the republic’s most populated “state” and would therefore get to dictate the terms of discourse within the republic in much the same way that California and Texas have been doing for the past 3 or 4 decades. That’s not a bad trade-off, especially if you consider how awful life has become in once-proud England.

Liberia. In 1821-22, the American Colonization Society founded a colony on the Pepper Coast of West Africa and called it Liberia. The aim of the colony was to provide freed slaves in the Americas a place to enjoy their freedom, since racism was still rampant in the Americas. The freedman quickly came into conflict with the locals (a clash of cultures that has continued into the present day). Liberia, governed by its New World migrants, declared its independence in 1847 but it wasn’t until 1862, in the early stages of the American Civil War, that the US recognized Liberia’s declaration. The African continent’s first and oldest republic, predating Ghana by over one hundred years, survived, as an independent entity, the Scramble for Africa in the late 19th century and has been at the forefront of regional coalition-building in Africa since the end of World War II (when the British and French empires collapsed). Liberia, like almost all republics, has decayed politically and socially, especially over the last few decades. Federating with the United States would do wonders for Liberians, and give the federation of free states a legitimate stamp on the African continent (and breath new life into America’s own republican decay). The West Africans would send 2 Senators to Washington, and about as many representatives as Louisiana or Kentucky.

Japan (8 “states”). With nearly 127 million people, Japan’s presence in the American federation would alter the latter’s composition fundamentally. Federating the United States with Japan also presents some logistical problems. As it stands today, Japan has 47+ prefectures, which are roughly the equivalent of US states. If we added them all as they are, the Japanese would get over 100 senate seats, which is far too many for a country with so few people. So, instead, I would bring Japan on board via its cultural regions, of which there are 8: Kantō, Kansai, Chūbu, Kyushu, Tōhoku, Chūgoku, Hokkaidō, and Shikoku. The country formerly known as Japan would get 16 Senate seats (which would be roughly divided between left and right) and the new “states” would be able to send a plethora of representatives, ranging from 32 for Kantō to 3 for Shikoku. In exchange for its sovereignty Japan would get the military protection from China it wants. The US would no longer have to worry about a free-rider problem with Japan, as its inhabitants would be citizens under the Madisonian constitution. It is true that a federation would lead to more non-Japanese people being able to migrate and take root in Japan, but this is a feature of federation, not a bug. (A federation of free states would devastate ethno-conservatism in several societies around the world.)

Micronesia.” Made up of 8 current countries and territories in the Pacific Ocean, Micronesia is also a cultural territory that encompasses a huge swath of the Pacific. While it doesn’t have a whole lot of people, Micronesia has been important to US military efforts in the Pacific for centuries. Federating with the area is the least we could do for the inhabitants of the Northern Marianas, Guam, the Federated States of Micronesia, the Marshall Islands, Palau, Nauru, Kiribati, and Wake Island. Micronesia would only get 1 seat in the lower house, but with 2 sitting Senators in DC the area would finally get a say in how the United States conducts its business in the region.

Visayas, Mindinao, and Luzon. These 3 regions in the Philippines would do much to enrich the federation of free states. Like Japan above (and South Korea below), the Philippines has a complicated representative system that would need to be simplified in order to better fit the Madisionian constitutional system. Through this cultural-geographic compromise, the Philippines would be able to send 6 senators to Washington, but these three “states” would also get to send more representatives to Washington than New York, Pennsylvania, and a bunch of other current heavyweights. There is already a long history between Filipinos and Americans, and while the first half century was a rough one for both peoples, today Filipinos hold some of the most pro-American views in the world. Of course, Americans who live near Filipino communities in the United States know just how awesome Filipinos are.

Taiwan. Even though Washington doesn’t officially recognize Taiwan as a country (a deal Washington made with post-Mao reformers on the Chinese mainland, in exchange for peace and trade), the two polities are deeply intertwined. Taiwan spends billions of dollars on American military equipment, and the U.S. spends significant political capital protecting Taiwan from China’s bellicosity. Taiwanese statehood would not only bring two close societies even closer together, it would force China to either fight the United States or reveal itself to be a paper tiger. That’s a gamble I’m willing to take, since China is a paper tiger.

South Korea (5 “states”). Another wealthy free-riding ally of the United States, South Korea has 5 cultural regions that could easily become “states” in a trans-oceanic federation: Gangwon, Jeolla, Chungcheong, Gyeongsang, and Gyeonggi. This would give South Korea 10 senators and 50 representatives (spread out according to population size, just like all the other states in the union).

Altogether we’re looking at adding 29 states to the union. That’s a lot, but I think you’ll find that not only would we be expanding liberty but also limiting the size and scope of the federal government, and forcing it to do more of what it is supposed to do: provide a standardized legal system with plenty of checks & balances and maintain a deadly, defensive military.

Ending Empire

Check out this map of known American military bases in the world today:

NOL known US bases
h/t Dissent Magazine

Expanding liberty and the division of labor are not the only positive side-effects of an enlarged federation under the Madisonian constitutional system. Ending empire – which is expensive and coercive, and gives the United States a bad name abroad – would also be a key benefit of expanding the republic’s territory.

Most American libertarians are isolationists/non-interventionists. Most European libertarians are wishy-washy hawks. Neither position is all that libertarian, which is why I keep keep arguing that “a libertarian position in foreign affairs should emphasize cooperation, choice, and trade-offs above all else.” Non-interventionism is uncooperative, to say the least, but you could argue that it’s at least a position; the Europeans seem to take things on a case-by-case basis, which is what you’d expect from a people who haven’t had to make hard foreign policy decisions since 1945. Open borders is a cool slogan, but that’s just a hip way of arguing for labor market liberalization.

It’s time to open up our doors and start talking to polities about going all the way.

Institutions, Machines, and Complex Orders (Part 7): The open texture of the words of the law

However, the law itself has its own endogenous system of production of rules, which operates on the abstract plane of the configuration of the structure of the relationships between its terms, and whose dynamics depends on the negative feedback process implied by the judicial work itself to clarify the words of the law for each specific case to be decided. Both in codified law systems and in customary law systems, the current positive law is clearly defined. The legal systems in which previous judgments oblige judges are even more rigid than codified systems, since in the latter it is enough for the legislature to enact a new code for the positive law to change. On the contrary, the judges must make a hermeneutical effort to modify the doctrine consecrated in a judicial precedent without this constituting an arbitrary ruling.

However, both in coded and customary legal systems, the law, which is always enunciated in express statements, carries with it the phenomenon of the open texture of language. These are not the cases of ambiguity, vagueness, or obscurity of the letter of the law. These latter cases can be solved by the doctrine, composed of scientific works that investigate the debates between the members of the legislative power at the moment of sanctioning the norm whose text carries such problems, or resorting to the normative antecedents of which the current law took its vocabulary.

However, vagueness, obscurity, and ambiguity in the words of the law configure linguistic problems with legal relevance, but not legal ones in themselves. What really matters to study are the cases of open texture of the language of the law, since it is through these cases that the law evolves.

In cases of open texture of language, the anomaly occurs in the universe of events to which the language refers. An obvious example: a constitution written in the 19th century can establish that the President is the Commander-in-Chief of land and sea forces. It would not be necessary to reform its text to incorporate the air force – or even weapons built to act outside Earth’s orbit.

However, the dynamics of legal traffic are mostly made up of less obvious cases in which the open texture of language forces judges to establish the words of the law for the specific case, resorting to a hermeneutic interpretation of the law for which “common sense” is not enough. In customary law these hard cases are those that generate a new precedent that often define what is inside and what is outside the “good legal sense.” The authors disagree among themselves on how to characterize this aspect of judicial work. However, the remarkable thing is that these “difficult cases” generated by the phenomenon of the open texture of the language are what make the law respond autonomously to changes in the conditions of the environment that the same right has as a regular task.

Indeed, Friedrich Hayek states in Law, Legislation and Liberty an attempt to separate law and politics based on the evolution of law according to a process of natural selection of norms. While it expressly recognizes that a legal system can be sanctioned in its entirety by the legislator, it also highlights the ability of legal systems to make an immanent critique of themselves, through the judicial system.

Although Hayek does not analyse the phenomenon of the open texture of language in his work, it does characterize law as a structure of norms that continually readjust to changes in circumstances following a negative feedback process, through successive judicial decisions. In Hayek’s own words, what establishes a legal order is a set of expectations about the behaviour of congeners that will be considered or not according to law. For example, if a party fails to meet its contractual obligations, it can expect the other party to refuse to comply with them and that, if sued, the latter will be supported by the courts. This expectation also works as an incentive to fulfil contracts and reduce litigation.

On the other hand, another feature of legal systems -particularly modern ones- that Hayek highlights is the definition of a range of expectations that will be systematically thwarted. This is what determines a structure for human action and implies the consecration of the principle of closure: everything that is not expressly prohibited is allowed. This allows individuals to form their life plans with the expectation that they will be fulfilled and with the ability to anticipate the behaviour of their peers, since they will be under the same incentive structure. The latter leads to a third characteristic of modern legal systems, which allows them to function as self-regulated systems: the principle of isonomy or of the same law for all. The incentive structure determined by the range of expectations that will be systematically frustrated, in a system that results from the same application for each individual, allows the definition of individual spheres of autonomy, within which each individual has free discretion, but when entering into collision with each other, each one will be able to infer what expectations they can have regarding a possible judicial ruling.

The reverse of this system is the “Administrative State,” by Carl Schmitt, in which only that which is expressly authorized by a decision based on expediency, and the status system of the Ancient Regime, is permitted, that each group had a private legal system or privilege-strictly speaking, our current modern system of rights consists in the extension to all human beings of the liberties or privileges that the nobles had wrested from the kings at the time. Therefore, it is a great risk that the number of regulations is such that the rule becomes that only what is specially expressly regulated can be done, depending on the dynamics of the change of the decision of the authority taken in administrative files, and that such is the segmentation of regulations according to pressure groups and interest groups, that they return to a system of privileges instead of equality before the law.

It is not difficult to find numerous current examples: the public transport system could reach levels of regulation such that it could practically be said that only such activity can be carried out with the express authorization of the public authority to that effect. The alternative is not the absence of regulation, on the contrary, the alternative is the modern State of Law: a set of positive norms, dictated by the competent authority and formulated in general terms. These rules that regulate public transport do not have an abstract content, but rather a concrete one: the set of objectives expressly set by public policy. While the rules of private law have an abstract content, that is, they lack a specific purpose, the rules of public law not only have a specific and specific purpose, but that such purpose must be expressly declared, in such a way that justice they can evaluate whether the willing means disposed by the public authority are related and proportional to the purpose of the rule of public law and, in turn, the citizens consider whether such ends are worth pursuing.

To continue with the exemplification of public transport of passengers and merchandise: there is a sphere that corresponds exclusively to private law. This refers to the rules that attribute legal responsibility between the transporter and the transported: the obligation of the transported to pay the ticket or the freight, the obligation of the transporter to transfer the people and goods without them suffering damages. In this sphere there is no concrete purpose of the norm. It only limits itself to stating the set of expectations that the parties can count on, regardless of who they are specifically and what the specific purpose of the transport is.

Correlatively, the regulation of public transport, which belongs to the orbit of public law, does have certain specific purposes. For example, take care of public safety and ensure an efficient distribution of the cost of accidents. For this purpose, it may provide that public transport companies register, periodically review the status of their units, which must meet certain minimum standards, and establish the obligation to contract civil liability insurance. Anyone who complies with these provisions, for example, could devote himself to the activity of public transport, passengers or merchandise. How many and who will be the transporters is something that the public transport regime should not compete with. The number of carriers will be fixed by the price system. Nevertheless, to the control of public transport must concern that the units that circulate are in good condition, that their drivers are suitable and have an insurance that covers their civil liability, so that the transported does not have to face the cost of accidents before an eventual bankruptcy of the carrier. On the other hand, the system of private law, in a parallel and autonomous way, distributes the responsibilities between the parties, without addressing who is each one.

[Editor’s note: Part 6 can be found here, and the full essay is here.]

From the Comments: Yes, the EU is, and will continue to be, democratic and voluntary

Here’s Barry countering a good, common, anti-EU argument:

Denmark Maastricht Treaty: after a referendum rejected it, opt outs were negotiated and the Treaty was approved by referendum with the opt outs

There was no referendum in Italy on the Nice Treaty, or if there was evidence appears to have disappeared from the net. Maybe it’s a beneficiary of the right to be forgotten law.

France and Netherlands: Constitution was dropped. Replaced by less ambitious Lisbon Treaty.

Italy: same comment for Lisbon Treaty as for Nice Treaty

Greece: Euro bailout referendum The rejection of the bailout package was a referendum held in Greece only for an agreement affecting all member states of the Eurozone. They did not wish to change the terms of the bailout and how would it be democratic for a vote in one state to override the wishes of the elected governments in other states. The elected Greek government was free to choose to leave the Euro if it was not willing to accept the terms for a bailout, The elected government and the national assembly chose to stay in the Eurozone and continue bail out negotiations on terms acceptable to the other states.

All states choose freely to remain in the EU apart from the UK, which has not provided a brilliant example so far of the advantages of withdrawal. When the UK voted to leave, the EU respected the result and entered into negotiations while the UK Parliament failed to agree on a withdrawal plan. States which stay in the Union are to some degree constrained by other stages of the union, as applies to the member states of the USA or the states which make up federal Germany.

Here is more from Barry on Brexit. And here is his stuff at NOL on the European Union. Tridivesh has some interesting stuff on the EU, too.

For a more skeptical take on the EU, try Edwin. Or Chhay Lin.