- Why Hayek was wrong about American and European conservatism, I Barry Stocker, NOL
- Why Hayek was wrong about American and European conservatism, II Barry Stocker, NOL
- Why Hayek was wrong about American and European conservatism, III Barry Stocker, NOL
- Why Hayek was wrong about American and European conservatism, IV Barry Stocker, NOL
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.
I have written a brief paper entitled ‘Hayek: Postatomic Liberal’ intended for a collection on anti-rationalist thinkers. For the time being, the draft is available from SSRN and academia.edu. Here are a couple of snippets:
Hayek offers a way of fighting the monster of Rationalism while avoiding becoming an inscrutable monster oneself. The crucial move, and in this he follows Hume, is to recognize the non-rational origins of most social institutions, but treating this neither as grounds for dismissal of those institutions as unsound, nor an excuse to retreat from reason altogether. Indeed, reason itself has non-rational, emergent origins but is nevertheless a marvelous feature of humanity. Anti-rationalist themes that appear throughout Hayek’s work include: an emphasis on learning by processes of discovery, trial and error, feedback and adaptation rather than knowing by abstract theorizing; and the notion that the internal processes by which we come to a particular belief or decision is more complex than either a scientific experimenter or our own selves in introspection can know. We are always, on some level, a mystery even to ourselves…
Departing from Cartesian assumptions of atomistic individualism, this account can seem solipsistic. When we are in the mode of thinking of ourselves essentially as separate minds that relate to others through interactions in a material world, then it feels important that we share that world and are capable of clear communication about it and ourselves in order to share a genuine connection with others. Otherwise, we are each in our separate worlds of illusion. From a Hayekian skeptical standpoint, the mind’s eye can seem to be a narrow slit through which shadows of an external world make shallow, distorted impressions on a remote psyche. Fortunately, this is not the implication once we dispose of the supposedly foundational subject/object distinction. We can recognize subjecthood as an abstract category, a product of a philosophy laden with abstruse theological baggage… During most of our everyday experience, when we are not primed to be so self-conscious and self-centered, the phenomenal experience of ourselves and the environment is more continuous, flowing and irreducibly social in the sense that the categories that we use for interacting with the world are constituted and remade through interactions with many other minds.
- Why do Ron Paul’s racist newsletters from the 80s and 90s still matter? Steve Horwitz, Bleeding Heart Libertarians
- A great profile of Pakistan’s Prime Minister Christopher Sandford, Modern Age
- Hayek’s tragic capitalism Edward Feser, Claremont Review of Books
- An observation on semiotics in national dialogue Mary Lucia Darst, NOL
This week, the United States and much of the world has been reeling from Trump’s xenophobic statements aimed at four of his Democratic opponents in Congress. But the U.S. economy continues to perform remarkably well for the time being and despite his protectionist spasms, Trump is widely considered a pro-growth, pro-business President.
This has led some classical liberals to consider Trump’s populist rhetoric and flirtations with the far right to be a price worth paying for what they see as the safest path to keeping the administrative state at bay. Many classical liberals believe the greater risk to liberty in the U.S. is inevitably on the left with its commitment to expanding welfare-state entitlements in ways that will shrink the economy and politicize commercial businesses.
In ‘Hayek vs Trump: The Radical Right’s Road to Serfdom’, Aris Trantidis and I dispute this complacency about authoritarianism on the right. In the article, now forthcoming in Polity, we re-interpret Hayek’s famous The Road to Serfdom in light of his later work on coercion in The Constitution of Liberty.
We find that only certain forms of state intervention, those that diminish the rule of law and allow for arbitrary and discriminatory administrative oversight and sanction, pose a credible risk of turning a democratic polity authoritarian. A bigger state, without more discretionary power, does not threaten political liberty. Although leftwing radicals have in the past shown disdain for the rule of law, today in the U.S. and Europe it is the ideology of economic nationalism (not socialism) that presently ignores democratic norms. While growth continues, this ideology may appear to be compatible with support for business. But whenever the music stops, the logic of the rhetoric will lead to a search for scapegoats with individual businesses in the firing line.
Several countries in Europe are much further down the 21st road to serfdom than the U.S., and America still has an expansive civil society and federal structures that we expect to resist the authoritarian trend. Nevertheless, as it stands, the greatest threat to the free society right now does not carry a red flag but wears a red cap.
Here is an extract from the penultimate section:
The economic agenda of the Radical Right is an extension of political nationalism in the sphere of economic policy. While most Radical Right parties rhetorically acknowledge what can be broadly described as a “neoliberal” ethos – supporting fiscal stability, currency stability, and a reduction of government regulation – they put forward a prominent agenda for economic protectionism. This is again justified as a question of serving the “national interest” which takes precedence over any other set of values and considerations that may equally drive economic policy in other political parties, such as individual freedom, social justice, gender equality, class solidarity, or environmental protection. Rather than a principled stance on government intervention along the traditional left-right spectrum, the Radical Right’s economic agenda can be described as mixing nativist, populist and authoritarian features. It seemingly respects property and professes a commitment to economic liberty, but it subordinates economic policy to the ideal of national sovereignty.
In the United States, President Trump has emerged to lead a radical faction from inside the traditional right-wing Republican Party on a strident platform opposing immigration, global institutions, and current international trade arrangements that he portrayed as antagonistic to American economic interests. Is economic nationalism likely to include the type of command-and-control economic policies that we fear as coercive? Economic nationalism can be applied through a series of policies such as tariffs and import quotas, as well as immigration quotas with an appeal to the “national interest.”
This approach to economic management allows authorities to treat property as an object of administration in a way similar to the directions of private activity which Hayek feared can take place in the pursuit of “social justice.” It can take the form of discriminatory decisions and commands with a coercive capacity even though their authorization may come from generally worded rules. Protectionism can be effectuated by expedient decisions and flexible discretion in the selection of beneficiaries and the exclusion of others (and thereby entails strong potential for discrimination). The government will enjoy wide discretion in identifying the sectors of the economy or even particular companies that enjoy such a protection, often national champions that need to be strengthened and weaker industries that need to be protected. The Radical Right can exploit protectionism’s highest capacity for partial discriminatory applications.
The Radical Right has employed tactics of attacking, scapegoating, and ostracizing opponents as unpatriotic. This attitude suggests that its policy preference for economic nationalism and protectionism can have a higher propensity to be arbitrary, ad hoc and applied to manipulate economic and political behavior. This is perhaps most tragically demonstrated in the case of immigration restrictions and deportation practices. These may appear to coerce exclusively foreign residents but ultimately harm citizens who are unable to prove their status, and citizens who choose to associate with foreign nationals.
François Furet, in the preliminary essay that serves as an introduction to The Past of an Illusion, entitled “The Equalitarian Passion,” highlights that in the Ancient Regime inequality was legally consecrated, while after the French Revolution, inequality persists surreptitiously, of contraband, thus cementing a feeling of vindication in the face of illegitimate inequality. Something similar happens in a system of regulations that, with the intention of serving the common good, re-establishes, de facto, a system of monopolies and oligopolies.
It is paradoxical that a political legal system made up mostly of general and abstract rules finds an unintended consequence of an increase in general well-being, while a regimented system based on a specific goal of social justice and growth finds itself as an involuntary stagnant consequence and with high rates of inequality. However, attentive given that no one can be judged morally for their involuntary results and instead for their intentions, it is commonly interpreted that the success of societies organized around abstract and general principles cannot be adjudicated to such principles, as it is also considered active policies that deliberately seek the common good cannot be reviewed by virtue of their poor results, but in any case what deserves to be discussed are the means to reach such objectives.
Once this point is reached, we discard any political program that does not have a purpose of reform or transformation based on a specific objective and in which the political discussion is about society models and the means to achieve in the practice of the realization of such models, the table is served for the ideologization of political discourse. Kenneth Minogue had rescued the original concept of “ideology” -before the Marxist who points to a set of values of the ruling class at the service of the perpetuation of his power-, which dealt with the set of claims with scientific pretension that, through a redemptorist program, he proposed a series of concrete transformations of society. This word and notion comes from the ideologues of the French Revolution, which mostly fulfilled a pedagogical function.
Since the ideology of politics is installed, any doctrine that arises from its discourse in terms of defending a system of coexistence articulated around abstract and general norms and lacking a specific purpose of designing the society according to a certain model. In the political arena, therefore, there are political programs that seek to impose a certain model of society, articulated around a series of assertions with alleged scientific validity. Whatever the model of society under discussion, by the mere fact of proposing such political programs the transformation of society in function of those, the legal norms expressed in abstract and general terms that make up both the individual guarantees and the private right run the serious risk of being considered as an obstacle and an irrational hindrance of the past that prevents the realization of such models of society. This is the process that Friedrich A. Hayek had described in The Road to Serfdom.
The paradox is that a legal – political system composed mostly of abstract (that is, lacking a concrete purpose) and general (that is, the same for all citizens regardless of their status) rules allows to coordinate in a more efficient way the resources of those that a society has, through a better coordination of individual plans, about whose content we know nothing and whose final configuration is impossible to predict, that is, a complex social order. On the other hand, the abolition or gradual weakening of such a system of coordination in the allocation of resources and its replacement by a system of planning or centralized control of the economy and society based on a specific model generates an economic breakdown that only serves of excuse to redouble centralization in the administration of resources. At one point, neither the model of society nor the need to have a central planning to reach it, nor even that there is such a model or such a central planning of society, is only discussed, but it is indeed discussed which are the most appropriate means to “improve” said model.
That said, it is worth making a terminological clarification: what Hayek called in The Road to Serfdom “socialism” and then in Law, Legislation and Liberty “constructivism,” can be assimilated to a large extent to what Kenneth Minogue called “ideology” (although in truth, it must be recognized that Minogue, at the time, accused Hayek of being an ideological author). But, as Hayek himself clarifies in his prologue to the 1974 edition of The Road to Serfdom, the socialism to which he alluded in 1944 was not income redistribution programs, but the centralized planning of the economy and society . Similarly, Hayek’s critique of the notion of social justice concerns precisely those programs of political reform that seek to establish, through centralized planning, a designed social order. Another issue is the positivization of values through abstract and general rules. A negative income tax – as proposed by Milton Friedman at the time – can be implemented through abstract and general norms, as well as patterns of redistribution inspired by John Rawls’ theory of justice. The problem is not redistribution, but the replacement of a spontaneous social organization system with a centralized planning system.
At the heart of the dispute between the prevalence of a spontaneous social order versus its replacement by a system of centralized planning of society is a divergence around the concept of the abstract. The supporters of the centralized planning of society are convinced that, through the measuring elements provided by science, the wealth of social events can be selected in aggregates that allow forming an abstract model of society, which In turn, it allows planning its reform according to the ideal model of society in whose transformation the political program that gives it reason to be to the politician’s own activity and that justifies his ethics of responsibility.
Of course, statistical tools, which are constantly developing (Hayek himself was a professor of statistics, and from The Road to Serfdom to today appeared the desktop computer and the science of Big Data, for example), allow a better allocation of public resources in the implementation of government programs. It is very useful for the rationalization of the government administration to know how much the population is going to vaccinate, the poverty and indigence statistics in order to determine, for example, subsidies to the demand, or the needs of schooling at its various levels. However, if there is consensus on the need for a vaccination program, or on the importance of subsidizing access to certain goods or the importance of schooling the population, it is because the members of that society already have a set of principles about what is considered good or bad, desirable or undesirable, necessary or superfluous. Such abstract notions do not arise from the abstraction of social events in statistical aggregates, but, on the contrary, these abstract concepts allow to form the groupings by virtue of which the social reality will have to be interpreted.
Such principles are born, develop and evolve according to the game of continuous human interaction. As described above, they consist of uses and customs that individuals incorporate in the course of exchanges and that prove with the passage of time to provide a better performance to the members of the community that follow them. Accounting standards, public behaviour guidelines, compliance with the word pledged, good faith, are examples of such practices that are extended throughout the population by incorporating such standards into the habits of its members. It was what Max Weber at the time conceptualized as the emergence of “rational capitalism.” These principles are not immutable, but on the contrary they adapt to the circumstances. However, they also enjoy certain permanence in time that allows them to serve as a structure or parameter for rational decision-making, since such a structure of values prohibits a certain range of decisions, which makes its transitivity possible.
This system of discovery and spontaneous evolution of the abstract values according to which reality is perceived and its respective organized elements can assume various configurations and has its own process of immanent criticism. The egalitarian guidelines that we can characterize as typical of modern society, in which every human being has the right to have equal consideration and respect, were extended over less efficient structures such as those of the caste and estates societies, in which the restrictions of competition and the unpredictable exercise of political authority generate stagnation (what Acemoglu and Robinson call “extractive economic and political institutions,” as opposed to “inclusive”). For its part, the peaceful resolution of disputes through the right of judges allows readjusting the set of expectations with which each member of society usually makes its decisions.
Such a system of discovery of abstract values with which each individual can count on to coordinate their respective life plans and their corresponding immanent criticism through the judicial system is also susceptible of receiving a critical analysis by a reasoned examination regarding it and as a result of this, a new political legal order or partial reform of the existing one may arise through the legislative promulgation or even of a constituent assembly. A spontaneous order may have as its origin the enactment ex nihilo of it by a legislator, but among its defining characteristics is the note that it should not necessarily be so. Another of its defining characteristics is that the consequences of a political legal order, still created by the will of a legislator or constituent, cannot be foreseen in its entirety. Moreover, the future evolution of this order cannot be foreseen in its totality and detail. Such degree of uncertainty does not come from the deficiency or insufficiency of the elements of measurement that have for object to know the reality, but in the levels of complexity to which such order can arrive in their more abstract planes.
However, these degrees of complexity decrease drastically in the daily experience of the subjects that interact with each other, seeking to coordinate or compete in their respective individual plans, since each one of them knows what expectations to have regarding the actions of the rest of the subjects (the more “inclusive” the institutions are, the lower the degree of uncertainty). For the case in which two spheres of autonomy collide, the controversy will be resolved by a court that will have to say the content of the law for the specific case submitted to its decision. From this result, they will have to configure a set of expectations with which agents will know that they can count or not.
In contrast to this, at the level of the legislator and the political authority, such levels of certainty leave room for increasing degrees of complexity. Although there are many administrative decisions that can be taken with a high degree of probability of being successful following the procedures of administrative law and the general principles of law – what Max Weber described as a process of rationalization in political decision-making , the certain thing is that it arrives at a point in which the legal reasoning arrives at a limit – what in his moment Carl Schmitt characterized like an instance in which the right dies and leaves its place to the policy. This is where the political authority is faced with the need to dispense with the rationalizing element of law and articulate its decision-making process based on another type of “anchoring”: a philosophical doctrine, a conception of life, a political doctrine, a reason of state or an ideology.
Those who oppose the extension of political power over the autonomous institutions and processes of society maintain that such philosophies, reasons of state, or ideologies are mere masks of pure political will left to their free will. However, at least in principle, they can serve as limitations or at least elements of political responsibility of the ruler in a democracy. There are numerous cases in which a democratically elected governor receives criticism from public opinion regarding a supposed lack of consequence with his political doctrine, a double discourse, or the configuration of a consistent but mistaken ideology. Even so, except for the cases of impeachment and the impossibility of re-election, the tools to control the political reasons of the rulers and their consequences are rather scarce.
However, a distinction can be made between a simple political doctrine and an ideologized political doctrine – or, in Minogue’s terms, quite simply an ideology. A political doctrine can sustain a series of diffuse principles that do not exhaust a totalizing vision of reality. For example, German Christian Democracy can be defined equally by rejection of the extreme left, as the extreme right, a market freedom regulated by the State in order to preserve competition from the actions of monopolies (the “competitive order” of Ordo-Liberalism) and the moderate defence of certain values prevalent in society through the non-interference of the government in its autonomous processes, that is, a clear division between society and State. However, no one can define in detail an ideology of German Christian Democracy.
In many circumstances, this “de-ideologization” is interpreted as “pragmatism” or “opportunism.” However, there is also room for opportunism in the interpretation of a political ideology by the public power that invokes it as a reason of state. The great problem that “ideologies” or ideological visions of politics do present is that, by offering a totalizing and scientific version of reality, they can be used as tools to discredit the legal system.
It is true that a legal system could be replaced by another in its entirety through a legislative reform – in the case of private law, a new civil code, for example – or a constitutional reform. But once reformed or replaced by the new, unless a tyranny has been instituted, it becomes the new legal order that will limit the political power. The problem arises when there is a phenomenon that can be named as the “road to serfdom”: the continuous, permanent and incremental discrediting, erosion, violation and exception to the current legal order.
When such a process is presented, freedom understood as the absence of arbitrary coercion is in decline, since, by invoking a reason of state or a state of exception, the expectations with which individuals counted to form their plans of life are frustrated in a way impossible to foresee. As a result, the political legal order becomes perceived as arbitrary and its obligation to obey it put in doubt.
Another consequence of the phenomenon known as the “road to serfdom” is that the system of immanent criticism of positive law affected by the application of this by judges in the face of concrete controversies is eroded. As already mentioned, attentive to the open texture of legal language, the judicial system allows for marginal readjustments on the content of the law that represent a true process of evolution, in the sense of adaptation to changes in the environment. In turn, this readjustment introduces new expectations in the agents, which generates a change in reality and opens the way for a new interpretation change through the open texture of the letter of the law, in a real feedback process negative that gives stability and predictability to the system.
On the contrary, the state of emergency and emergency legislation, as well as legislative and judicial activism, which seek to modify the content of the law not to solve the internal contradictions generated by its open texture, but to transform it according to concepts alien to the law. Right, they erode such a negative feedback system of expectations and, far from achieving the modernization of the law, what they obtain is their obsolescence, their discredit, and their disobedience. See that in countries with a greater authoritarian tradition, the adherence to standards by the population is significantly lower than in countries where emergency legislation and the state of emergency was limited to cases of war.
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.