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.

The Centre Holds: European Union Election

Summary 

There is no populist right anti-EU surge. Voting participation increased. The old centre-right and centre-left in the European Parliament declined but the centre holds with a  stronger role for Greens and Liberals. The European Union is not anti-democratic and does not impose its will on member states. Its decision-making is complex, but that is to achieve consensus, not to eliminate democracy. The EU and the Euro currency are more popular. At least for the moment, the EU’s institutions, democracy, and projects are strengthened.

Turnout

Elections for the European Parliament (the Parliament of European Union) the took place between 23rd and the 26th of May this year. The official results can be found here. The turn out was the highest since 1994 at 51%. This is higher than for the US Congressional Elections of last year, though that was the highest turnout in an ‘off  year’ (a year in which the President is not up for election) for over a century. There is no equivalent figure to the President of the United States in the European Union. Roughly speaking the US President is equivalent to a combination of the President of the European Commission and the President of the European Council, neither of which are directly elected, and have a tiny bureaucracy compared with the machine of the United states federal government, at their service.  There is no reason then for European Union elections to generate as much voter participation as US elections when the President is elected. Even so, such elections in the United States have only generated marginally more participation than EP elections, 55.5% in the 2016 election. It seems reasonable to conclude that the European Parliament has had some success in establishing itself as a representative institution, even compared with an elected body as old as the Congress of the United States.

Political Groups in the European Parliament

The European Parliament is mostly composed of Members (MEPs) who sit in transnational political groupings, which usually have a transnational party, essentially serving as a framework for co-operation between national parties. The political groups in the European Parliament are prone to change in their political boundaries and composition, but the four biggest groups have existed in a mostly stable way over multiple elections. They are:

  • European People’s Party (EPP, also referred to as Christian Democrats, centre-right),
  • Progressive Alliance of Socialists and Democrats (S&D, often referred to as the Socialists, centre left),
  • Alliance of Liberals and Democrats for Europe (ALDE, also known as the Liberals, containing classical liberals, left liberals, various moderates and centrists),
  • Greens/European Free Alliance (G/EFA, often referred to as the Greens, left leaning environmentalists plus leftwing regionalists).

The other groups, which have been less stable so far or have not existed for very long are:

  • European United Left-Nordic Green Left (GUE/NGL, left socialists, communists and left-wing greens),
  • European Conservatives and Reformists (Eurosceptic right),
  • Europe of Freedom and Direct Democracy (EFDD, Eurosceptic right and centrists),
  • Europe of Nations and Freedom (EFN, nationalist right).

Results 

I take results from here, focusing on percentage of seats as the easiest way to understand  the proportional support of these groups both within the EP and the EU electorate. It makes comparison with the last Parliament (elected in 2014) easier as the number of seats has slightly increased (from 749 to 751) and most importantly because defections, expulsions and reconstruction within and across groups means that a comparison with the seats for political groupings of the 2014  parliament at the end of its term is easiest. Percentage of seats in the outgoing EP in brackets.

  • EPP 23.83 (28.84)
  • S&D 20.37 (24.70)
  • ALDE 13.98 (9.21)

(This result relies on assuming Emmanuel Macron’s Renaissance list in France and and the Save Romania Union will join ALDE though this has not been confirmed. It does seem overwhelmingly likely. )

  • G/EFA 9.85 (6.94)
  • ECR 8.39 (10.28)
  • ENF 7.72 (4.81)
  • EFDD 7.19 (5.61)
  • GUE/NGL 5.06  (6.94)

(the remainder is composed of non-aligned MEPs)

Stories and Trends

The big story in the build up to the election was whether there would be a populist right/eurosceptic breakthrough. The political groups that could be classified as such are ECR, ENF and EFDD. Their total at the end of the 2014 Parliament was 20.7%. Their total now is 23.3%. There was a swing in this direction, but only of 2.6% of seats which is a good deal less than a breakthrough. It is a long way short of the 30% which might have enabled them, presuming they could co-ordinate, to block the EP from progress in the wrong direction, from its point of view, though the way committee memberships and chairs are distributed. GUE/NGL is sometimes classified as left populist/eurosceptic, though it contains a variety of views. It fell back and if we add it to the right-wing eurosceptic seats, we still only get a total of 28.9%. There is little prospect of the right-wing groups co-ordinating closely and none at at all of close co-ordination of these three plus GUE-NGL.

The big story as the results came in was less the right-wing eurosceptic swing than the swing within the groups which support the EU with as much power as it has now, or movement towards more EU powers.

There was a notable shift from EPP and S&D to ALDE and G/EFA, so from the centre-right and centre-left to the liberal centre, greens, and regionalists.

Generally speaking the EPP has moved from previous domination by a grand coalition of EPP and S&D to  a more fragmented or pluralist situation in which a centre ground, pro-EU middle ground requires ALDE for a majority and is also likely to bring in G/EFA, with the place of the Eurosceptic right consolidated.

The Liberal swing is largely based on Liberal Democrat success in the UK and the new Macronist list in France. The Green swing is based in northwestern Europe. S&D remain comparatively strong in Spain and Portugal, with a good result in the Netherlands. ENF is dominated by the League in Italy and the National Rally in France. ECR is dominated by PIS in Poland.

Traditional centre-right and centre-left parties had very bad results in France and the UK. The radical and populist left has fallen back, particularly in France, Spain, Greece, and Ireland.

Misunderstandings

Despite what some reporting might lead you to believe, hard Brexit did not win in the UK and Marine Le Pen’s National Rally did not have a big success in France. The Brexit Party was the single most popular party in Britain, but even if its vote is combined with the United Kingdom Independence Party (from where its leader Nigel Farage came from), the no-deal hard Brexit vote (33.8%) was distinctly less than the combined vote for second referendum and remain supporting parties (39.8%): Liberal Democrats, Greens, Change UK, Welsh and Scottish Nationalists, Alliance Party (Liberal Democrat partners in Northern Ireland). The European trend for the traditional centre-right and centre-left to collapse was heightened by the inability of both the Labour and Conservative parties to find a clear direction on Brexit and achieve internal unity on the issue. UK participation in the election was the result of the failure of the pro-Brexit Conservative government to find a Brexit policy with majority support in the UK Parliament.

In France, despite transforming the National Front into the National rally with the aim of broadening support, Marine Le Pen lost ground compared with the 2014 European election. National Rally was slightly ahead of Emmanuel Macron’s Renaissance list, but given Le Pen has not increased her base and given that Macron is clearly ahead of all non Le Pen forces, it is likely that the next Presidential election in France will be between Le Pen and Macron again, with another victory for Macron.

Democracy, Law, and Bureaucracy in the European Union

Two ideas circulate widely about the European Union that cannot both be true, though the same people often state both. 1. The EU Parliament has no power. 2. The European Union imposes over-regulation and bureaucratisation on member states to an oppressive degree. As the European Parliament’s main role is as co-legislator in matters of regulation, it is a major actor in this issue. It co-legislates on regulation with the European Council, an assembly of government  ministers from member states varying according to the policy area in question.

The European Council and the European Parliament act under the direction of the Council of the European Union, which is composed of heads of governments of member states and the heads of EU institutions. The European Commission drafts legislation. It has the sole power to initiate legislation, but only under the direction of the Council of the EU and with the agreement of Parliament and the European Council.

Despite what is frequently assumed, the Commission is not an oligarchy of unaccountable permanent civil servants commanding a vast expensive, complex bureaucracy. The Commission is nominated by member states and is very largely, if not entirely, composed of commissioners who have been elected politicians at a senior level and not civil servants. The Commission has to be confirmed by the Parliament which can also forced the Commission to resign. The Commission did resign in 1999 before the Parliament could force it to do so. The Parliament has the right to suggest legislation to the Commission, and since it can sack the Commission, it cannot be ignored. The bureaucracy of the Commission is no greater in numbers than the larger units of local and municipal government in the UK.

The EU structure of decision making is complex and indirect. It is not anti-democratic rule  by bureaucrats. Laws and decisions are made by bodies  which are either directly elected by the citizens of the European Union or are made up of members of elected governments. The Commission can only exist through the will of elected member state governments and the Parliament. The President of the Commission tends to be the public face of the European Union, though recently that has been shared with the President of the Council of the EU. This public role tends to create confusion and exaggerated ideas about the power of the Commission. Though in EU thinking, the Commission is the civil service of the Union, it also a political body appointed to guard the treaties that have constituted the EU. The role of defending agreed basic law is not obviously an anti-democratic conspiracy, it is surely part of a stability of law necessary to the functioning of any political institution. Clearer lines of decision making would be preferable in some respects, but is difficult to achieve so long as the EU operates on a consensus between member states.

Those who are most hostile to the idea of a fully federalised European Union with strong decision making powers are also those most likely to claim that the EU is a bureaucratised conspiracy against member states, lacking clear and direct lines of political decision making. Decisive decision making by directly elected bodies would go beyond what is politically feasible now or in any feasible future. Such clear decision making would require a far far larger bureaucracy and much more intervention in member states. The EU works by consensus between member states and institutions. Unfortunately at any one time it tends to suit some people to claim that the EU is a conspiracy against member states, or a member state supposedly under siege from other members state, or the Commission turned into some monstrosity of unaccountable power which has no basis in reality.

I would certainly welcome less enthusiasm for regulating from above in the European Parliament and other institutions. The drive to the administrative and regulatory state long precedes the European Union and is a universal phenomenon across the globe of the last two centuries. There is no reason to think the member states of the EU would be less regulatory outside the Union. By creating common regulation, the EU at least ensures that regulation does  not impede continent wide trade.

The EU does things to promote trade that no existing free trade agreement has ever done. It has uniquely achieved a single market in services and human capital (that is labour), as well as goods, over a continent, over hundreds of millions of people. The creation of regulation at the EU level is a necessary aspect of this, which still leaves considerable scope for countries to have a relatively less statist approach, with a wide variety within member states regarding the scope of the state in the economy. This can be confirmed by careful examination of the Cato Institute’s Human Freedom Index.

The Political State of the European Union

Despite fears and hopes of a eurosceptic ‘populist’ right surge in the European Union leading to its weakening and possible disintegration, these political forces have stabilised at less than one-quarter elected seats in the EP. Support for the European Union and for the Euro currency (frequently pronounced dead in the past by sceptics) has increased in recent years. The continuing political confusion regarding Brexit in the UK has discredited claims about the benefits of leaving and have made it increasingly uncertain that the UK will leave.

Participation in European level voting has increased. The EU has been strengthened in credibility in recent years. Donald Trump’s enthusiasm for trade wars, and  bypassing the World Trade Organisation, has undermined claims that the UK could seek a place in the world after Brexit based on free trade with the US. An EU trade agreement with Japan soon after Trump pulled the US out of the Trans Pacific Trade Partnership, which includes Japan, has undermined the idea that the UK would be better off outside the EU in pursuing world trade. Trumps’s tolerance (along with Congress) of an ever increasing federal deficit in the US looks highly imprudent compared with the fiscal prudence imposed by Euro currency institutions and regulations.

Not everything is great about the EU, there are certainly some things the US does better with regard to innovation and regulation, but the EU is increasingly popular and and weakening or breakup would weaken a single market under a unified, predictable regulatory regime. The concentration of powers in national governments is not advantageous to liberty, as the Framers of the US Constitution recognised when they turned thirteen ex-colonies in a loose confederation into components of a Federation based on balance of powers and consensual decision making across institutions.

Catholic Emancipation as a Constitutional Revolution 

Religious toleration is important to Britain’s historical self-image as a bastion of liberty against continental tyrants like Hitler, Napoleon, and Louis XIV.

But for much of the 18th century, Catholics in Britain were barred from government service, the army and navy, the law, and the universities. Formally, they were not allowed to inherit land or even marry with Catholic rites (though in practice there were well-recognized workarounds). Catholic priests faced life imprisonment and Catholic schools were illegal. When these laws were liberalized in 1778, this provoked the worst riot in early modern British history, the Gordon Riots.

Frazer details the travails involved in passing Catholic Emancipation. The King and the Anglican establishment were strenuously opposed to liberalizing laws against Catholics. Despite the fact that he had Catholic friends, George III opposed emancipation because it violated his coronation oath to champion the Protestant religion.

Prime Minister William Pitt proposed emancipation in 1801 and offered to resign if the King disapproved. This prompted George III’s descent into paranoia or “madness”. Frazer notes that

“There had already been a bout of this madness in 1788 and 1789, with the younger George as temporary Regent. Whatever the actual illness from which he periodically suffered, it included among the symptoms an obessional quality which certain topics unquestionably aroused. Catholic Emancipation, that appalling prospect which would cause him to be damned for breaking his sacred vow, was prominent among them:

None of this is mentioned in the 1996 film, featuring Nigel Hawthrone, of course!


Why did Catholic emancipation provoke this reaction? The British state faced a crisis in the early 19th century. Most accounts focus on the French and Industrial Revolutions, which disrupted the existing social order and alarmed ruling elites. Religion is scarcely mentioned. Thus from a Marxian perspective, the Chartists and the passing of the Great Reform Act — which extended the franchise to property holders — represent the bourgeoisie, demanding political rights to match their economic power. Acemoglu and Robinson model the transition from oligarchy to democracy as a game theoretic problem, in which the threat of revolution from below obliged elites to grant democratic rights, in order to make the promise of economic redistribution credible. Neither spends much time on religion.

But an older historical tradition saw the Catholic Emancipation as among the key causes of the constitutional crisis that the British state underwent in the 1820s and 1830s. According to John Derry (1963, 95):

‘The Protestant ascendancy was part of the Constitution: one might say without it the Constitution would never have existed. The Coronation Oath pledged the monarch to maintain the Protestant religion as by law established, while the Act of Settlement ensured a Protestant succession. Both the landed gentry and the commercial classes — as well as the urban mob — believed that if the Protestant ascendancy went the gates were open to unimaginable horrors.”

To understand why this was so, and why Catholic Emancipation paved the way for further liberalization and the rise of liberal democracy, let us revisit the argument of Persecution & Toleration.

The significance of the Protestant Ascendency reflected Reformation England’s Church-State equilibrium. The treatment of Catholics is a canonical instance of what we call condition toleration. Catholicism per se was not illegal, but it was constrained, and these constraints were justified in political terms. Throughout the 17th century, Protestants feared a return of Catholicism which they associated with unrestrained autocratic rule. For Henry Capel MP in 1679:

“From popery came the notion of a standing army and arbitrary power. Formerly the Crown of Spain, and now France, supports the root of this popery amongst us; but lay popery flat and there’s an end of arbitrary government and power. It is a mere chimera without popery”.

It was on these grounds that the Whigs sought to disbar James II from the throne. After the Glorious Revolution, the Toleration Act of 1689 excluded both Catholics and atheists. And famously, the great advocate of religious toleration, John Locke rejected toleration for Catholics, as they were loyal to a foreign prince.

The religious aspect of the Glorious Revolution is neglected in the seminal accounts of it in the political economy and economic history literatures (i.e. here). But the Glorious Revolution settlement did not only guarantee the independence of Parliament from the Crown, it also safeguarded the political position of the Anglican Church by excluding Catholics from positions of power. In return, the Church of England remained the mainstay of state. As J.C.D. Clark (1985, 438) observed:

“The Church justified its established status on a principle of toleration — the toleration of other forms of Trinitarian Christian worship. It drew a sharp distinction between this and the admission of Nonconformists to political power.”

This was particularly significant in Ireland, where the Protestant Ascendency ensured the political and economic dominance of the Anglo-Scottish Protestant elite over the Catholic majority.

Now 18th century Britain was much less reliant on religion to legitimate political authority than prior regimes. As Jared Rubin argues, one consequence of the Reformation was a decline in the legitimizing power of religion; it was superseded by institutions such as parliaments, which represented economic rather than religious elites.

Other things had changed too. The ascendancy of the Church of England was seen as crucial to state security in post-Reformation England. But this was no longer the case by 1800. Following the initial break with Rome in the 16th century, these fears had not been groundless: Protestant Englishmen felt threatened by revanchist Catholic powers such as Spain and France and, in the Gunpowder plot, Catholic conspirators threatened the death of the king and the destruction of Parliament. The fact that the vast majority of Catholics were loyal to crown and country was not enough to alleviate Protestant fears, which occasionally erupted into persecutions, such as those that accompanied the Popish plot.

Following the French Revolution, however, Catholicism was no longer associated with an aggressively expansionist continental power. The old enemy was now secular. Catholic priests fleeing Revolutionary persecution found sanctuary in Britain. And by the 1820s there was a growing pragmatic and liberal opinion in favor of Catholic Emancipation. Lord Palmerston’s argument, as summarized by Frazer (p 157), was that

“. . . times had inevitably changed, and the argument to history could not be sustained: what if Nelson, Fox and Burke had all happened to be Catholics by birth. Would it have been right to deprive the nation of their services?”

Liberal Protestant clergy further argued that

“a Catholic layman who finds all the honor of the state open to him, will not, I think, run into treason and rebellion” (quoted from Frazer, 2018, 158).

Translated into the framework of Persecution & Toleration: the equilibrium had changed. Catholics no longer posed a political threat. The legitimatizing power of the Church of England was waning. Population growth, urbanization — particularly the rise of new urban centers — as well as immigration from Ireland, undermined the ideological hold of the Church of England.

Nevertheless, when the issue finally came to head in 1827–1829, it brought down the government. Catholic Emancipation was the Brexit of its day. When the pro-emancipation George Canning became Prime Minister, its leading opponents, the Duke of Wellington and Robert Peel resigned and the Tory party split into two. Canning then died. But the move towards liberalization now had momentum. Agitation in Ireland raised fears of revolution. In 1828 the Test Act was Repealed. Wellington and Peel reluctantly switched sides. 1829 Catholic Emancipation passed, despite the fact that King George IV disapproved of it.

Thus according to J.C.D. Clark’s insightful (though contested) account:

“As significant were the consequences of Emancipation: the belief that the sovereign would not resist massive constitutional change; and the profound schism which now rent the party of Wellington and Peel” (Clark, 1985, 536).

Catholic Emancipation thus set in motion a more general constitutional revolution. Both Whigs and Tory ultras who opposed Catholic Emancipation lost faith in the existing Parliamentary system. A fundamental pillar of society, the Church-State alliance, had been undermined. It was followed by the Great Reform Act and the rise of liberal democracy. In Clark’s word’s

“. . . the effect of the measures of 1828–1832 was to open the floodgates to a deluge of Whig or radical reform aimed against the characteristics institutions of the former social order . . . English society can point to few events which changed the pattern on the ground with the totality and the dynamism of 1776, 1789 or 1917: 1832 was not such an event. It was, however, decisive in many other ways, for it dealt a death blow to England’s old order. In the process, it produced what in other disciplines is called a ‘paradigm shift’”(Clark 1985, 555–556).