Do blacks have more police encounters than whites?
In 2015, the percentages of whites and blacks who experiences police initiated encounters with the police were equal, a little over 10% each. (Bureau of Justice Statistics.) These rates seem to debunk a popular alternative narrative appearing in the Boston Globe, among other liberal sources, that claims that blacks get killed more often by police than they should (see below) because they have more police encounters, including some prompted by racial profiling. There is also evidence from the Stanford Open Policing Project that police in various places stop black drivers at a higher rate than they do white or Hispanic drivers. The Prison Policy Initiative (a liberal organization) also asserts that African Americans share on average more contacts with police than whites and are stopped proportionately more often than whites, both on foot and in automobile traffic.
This disagreement is important for the following reason: Suppose that the probability of being killed by police depends completely and impartially on the probability of being stopped by police, say, in traffic. Think of a sort of deadly lottery: If you are stopped by police, there is a constant and equal probability of ending up dead. In this case, if police are more likely to stop black citizens than white citizens then, they are automatically more likely to kill black citizens, even for frivolous reasons or, in some other way, unfairly. Imagine further that black citizens are mostly stopped in traffic for having a missing taillight on their car and such, while white citizens are only stopped for such egregious conduct as going through a stoplight at 65 miles an hour. In that hypothetical situation, the killing of black drivers could easily be a result of police animus against them. Remember that this would be true although police would be just as likely to kill the whites as the blacks they stopped.
In the same situation, the killings of whites citizens by police would be more likely to be justified. In the hypothetical situation I describe, some black victims of police would be indirect victims of racism though black and whites would be stopped the ones as often as the others. In this scenario, the possibility of police hostility against African Americans could even remain in a situation where more whites than blacks are killed by police after a traffic stop. An extreme formulation of this perspective would go like this: Police kill whites they encounter as frequently as they kill blacks that they encounter, but all the blacks they kill are completely innocent while all the whites they kill are all guilty of some serious or violent legal trespass.
So, I ask, are there reasons other than racial animus, legitimate reasons, why police would stop black citizens more frequently than they do white citizens? This is a hard thing to figure out but it’s worth trying because the answer contains a potential explanation beyond the simple findings that police kill the whites they stop as much as the blacks they stop.
Is there any reason other than racial prejudice or animus why police would stop African Americans more than they do whites?
Ideally, a detailed study of police stops at every level of seriousness of suspected offense would answer this question. I think such a study does not exist. (I hope it will, soon.) So, I will use a trustworthy proxy for all forms of lawbreaking: murder convictions.
The assumption I make here is that there exists a continuity between such offenses as homicide, armed robbery, DUI, running stoplights, and driving with a broken taillight. Underlying this continuity would be a propensity to break the law. If no such continuity, no such propensity exist, my conclusions at the end of this section are correspondingly in doubt. I already know that my choice of indicator is imperfect in one respect: There is probably no continuity between crimes of passion and other transgressions. However, those are a small number of the total. This scheme also leaves aside whole categories of serious crimes that are almost certainly preponderantly white crimes, such as financial transgressions – because they seldom give rise to impromptu encounters with police.
I choose homicide as a substitute for all lacking measures of lesser categories of law breaking for several reasons. First, homicide is almost always an unambiguous act – as opposed to jumping stop signs, for example. Second homicides are more likely to be scrutinized than other forms of law breaking. Third, the race of homicide perpetrators is more likely to be known than the race of other crime perpetrators. Fourth, homicide is not as likely to be charged frivolously, without reason, as lesser offenses such as jumping stop signs may be.
Tech note: Below, I am dealing in broad orders of magnitude rather than is specific quantities. I mean that if I cut any figure I proffer by one third, the associated reasoning would remain intact.
African Americans regularly account at least for 40% and up of all homicides (“Race, Ethnicity and Sex ….” 2016 Crime in the United States, Table 3, already cited above.). The real situation is worse than this. It turns our that females in general commit ten times fewer homicides than males. So, it would be closer to the truth to state that something like the 6 to 8% of Americans, who are black and male, commit around 70% or more of the homicides in the United States. It matters to my reasoning that this is a long-standing situation. In 1976, a black male was 12 times more likely than a white male to commit homicide; in 2005 however, he was only 9 times more likely ( James Alan Fox, Northeastern University and Marianne W. Zawitz, BJS Statistician; BJS: Bureau of Justice Statistics Homicide Trends in the U.S. 2010.)
Why then would police stop African Americans preferentially? The seemingly ingrained current, as well as traditional answer is “racism.” One major objection to this view is that, as we have seen, the same supposedly racist police then and against expectations, are no more likely to kill the blacks they stop than the whites when given the opportunity.
The inference I make above may explain this paradox. Police, being well aware of a higher black propensity to break the law, stop African Americans more frequently that they stop whites. They would do so, perhaps, because stopping black offers a better yield than stopping whites. For the same reason (a speculation), they treat them more brutally, irrespective of degree of compliance (Fryer, Roland G. Jr: “What the Data Say About Police.” WSJ, 6/23/20, already cited). If racism guided their actions rather than a harsh but but basically rational realism, they would also kill the African Americans they stop more often than whites. The fact is that they do not.
Are black police officers as likely to kill black suspects as are white officers? If white officers preferentially killed blacks and black officers did not, or any attenuated version of this divergence would contribute to establish the thesis of systemic racism. So, what are the known facts on this? A 2018 Rutgers University study by Charles E. Menifield, Geiguen Shin, and Logan Strother, based on 2014- 2015 nation-wide data about all police killings answers a with a clear “Yes.”
If black officers kill black suspects as readily as do white officers, it’s unlikely that white officers’ killings of African Americans are generally expressions of any racism while the equal propensity of black officers to do the same is not. It’s more reasonable to suppose that the equal probability of black and white officers to kill blacks is the expression of, or is associated with something other than racism.
While I wish that we had a bigger study covering more years than the study cited above, it is the only systematic treatment of the data we have. For the moment, I would rather go with it rather than with a dozen well documented, dramatic, lamentable episodes spread over five or six years. A principled new study covering more years showing that white officers are more likely than black to kill African Americans could undermine my provisional conclusion below any time. Incidentally, and here again, I am surprised that the many supporters of the thesis of systemic racism in academia have not yet produced such as study. Or, have they?
I am well aware of the adage that “absence of evidence is not evidence of absence” but it’s only partially correct. If you said that a presumptive wolf got into your house every other night and stole one of your children, and if you did not proceed to study wolves, I would quickly suspect that something was amiss. I would believe in a short time that your narrative is all askew. Or, I would even judge that your lack of due diligence conceals something important
Disposing of a slightly risky inference If the inference I make above about a kind of continuity of lawlessness from homicide to other, milder forms of law breaking is not credible, it can be replaced with the following more basic formulation: Police officers are likely to be aware of the high black homicide rate. As a consequence, they consider black people in general more dangerous than white people. This knowledge is the basis for their stopping black citizens more frequently than white and also for their rougher treatment of black citizens than of white.
In this scenario, police officers are acting in a rational way although it may be objectionable. Again, African American police officers kill blacks as often as white police officers do.
Perhaps these practices amount to systemic racism. I think the case has to be made explicitly and clearly. It should affirm that police officers should not act differently with those they consider dangerous than with those they do not. The explanation should also include an evocation of how police should act differently based on the information available to them.
Here is a detour, an obviously necessary detour. The analysis above does not seem to me to support the concept of systemic racism but it leaves plenty of room for charges of racial unfairness. The legions of African Americans who think of rolling through a stop sign as significant lawbreaking would be, according to the same analysis, possibly, just possibly, at greater risk of being killed by police than their white fellow-citizens just because of some African physical features. The unfairness resides mostly in the fact that such features could not be erased or masked would they wish to do so. (I don’t suggest they would or should.) Yet, differential treatments based on such or similar ascribed characteristics are common in other phases of real life and normally seen only as regrettable but unavoidable facts.
There is a large category of Americans who are systematically required to pay 20% higher premiums for life insurance than the majority of the population, the category of reference. This category is “Men.” It’s unfair because, in general, as a rule, men cannot stop being men. Insurance companies routinely advance the justification that, at every age, men are more likely to die than women thus creating a higher risk of disbursement for the company. Men are also known generally, on the average, to engage in more risky behavior than women. Yet, the premium surcharge imposed on all men is obviously unfair to some male human beings like me who never touch alcohol or any other drug, don’t smoke, exercise two hours of every day, and eat only tofu and kale. It’s even unfair to the probably many less saintly men who do not lead riskier lives than do women in general. Do you see the parallel?
If the police tendency to stop blacks more than whites based on general numbers and an ascribed characteristic constitutes systemic racism, isn’t it true that the absolute preferential treatment insurance companies afford women is “systemic sexism”?
I must add this: African Americans have allowed themselves to be treated as members of a “community” for at least fifty years or more (perhaps, since the Civil Rights Movement.) This makes it difficult to advance claims based on individual traits, like this: “I don’t smoke and I don’t even roll through stop signs.”
Putting all the numbers together, this higher risk for African Americans to die at the hands of the police is compatible with the idea that they are stopped more frequently than are whites although, once stopped – as we have seen – they suffer no greater risk of being killed. Though these figures indicate that African Americans are more likely to die from police action than others, they don’t demonstrate systemic racism in law enforcement. They may be compatible with that concept through some other path I have not discovered. Perhaps, more research is needed. I have trouble believing this. I think that if it were possible, it would have been done by one of the several organizations dedicated to the welfare of black Americans, or by any one team of American liberal academics.
Confusing Yesterday and Today
One must ask why much of the general public, helped by the largely left-leaning media seems to accept a narrative starkly negated by available figures. It seems to me that the explanation resides in a massive confusion in the mind of that fraction of the general public that is intellectually honest about racism.
The confusion concerns the passive collective inheritance of slavery. Those whose ancestors came here in chains and against their will (instead of being highly self-selected like all other immigrants. See my “Why Immigrants are Superior.”), those descendants of slaves who received a systematically inferior education or none at all, those whose grandparents were limited in their occupational choices by legal segregation, such members of American society will do less well economically and socially than those whose antecedents suffered no such limitations on their talent and character. Throw in thousands of lynchings and the occasional deadly race riot and you have a societal design for the failure of some.
If you could conduct an experiment replicating those conditions with people selected at random, marked with a blue tattoo on their left hand, and made to breed among themselves you would certainly observe in them below average rewards of life on any conceivable indicator. This would happen in the absence of any current (current) mistreatment of their descendants. The now vague factor of “racism” would not have to be investigated. The historical explanations above would suffice.
Last week, I sat down with Scott Johnson of the Device Alliance to discuss how medical research is communicated only through archaic and disorganized methods, and how the root of this is the “economy” of Impact Factor, citations, and tenure-seeking as opposed to an exercise in scientific communication.
We also discussed a vision of the future of medical publishing, where the basic method of communicating knowledge was no longer uploading a PDF but contributing structured data to a living, growing database.
You can listen here: https://www.devicealliance.org/medtech_radio_podcast/
As background, I recommend the recent work by Patrick Collison and Tyler Cowen on broken incentives in medical research funding (as opposed to publishing), as I think their research on funding shows that a great slow-down in medical innovation has resulted from systematic errors in organizing knowledge gathering. Mark Zuckerberg actually interviewed them about it here: https://conversationswithtyler.com/episodes/mark-zuckerberg-interviews-patrick-collison-and-tyler-cowen/.
It’s been a heck of a year. Thanks for plugging along with Notes On Liberty. Like the world around me, NOL keeps getting better and better. Traffic in 2019 came from all over the place, but the usual suspects didn’t disappoint: the United States, United Kingdom, Canada, India, and Australia (in that order) supplied the most readers, again.
As far as most popular posts, I’ll list the top 10 below, but such a list doesn’t do justice to NOL and the Notewriters’ contribution to the Great Conversation, nor will the list reflect the fact that some of NOL‘s classic pieces from years ago were also popular again.
Nick’s “One weird old tax could slash wealth inequality (NIMBYs, don’t click!)” was in the top ten for most of this year, and his posts on John Rawls, The Joker film, Dominic Cummings, and the UK’s pornographer & puritan coalition are all worth reading again (and again). The Financial Times, RealClearPolicy, 3 Quarks Daily, and RealClearWorld all featured Nick’s stuff throughout 2019.
Joakim had a banner year at NOL, and four of his posts made the top 10. He got love from the left, right, and everything in between this year. “Elite Anxiety: Paul Collier’s ‘Future of Capitalism’” (#9), “In Defense of Not Having a Clue” (#8), and “You’re Not Worth My Time” (#7) all caused havoc on the internet and in coffee shops around the world. Joakim’s piece on Mr Darcy from Pride and Prejudice (#2) broke – no shattered – NOL‘s records. Aside from shattering NOL‘s records, Joakim also had excellent stuff on financial history, Richard Davies, and Nassim Taleb. He is also beginning to bud as a cultural commentator, too, as you can probably tell from his sporadic notes on opinions. Joakim wants a more rational, more internationalist, and more skeptical world to live in. He’s doing everything he can to make that happen. And don’t forget this one: “Economists, Economic History, and Theory.”
Tridivesh had an excellent third year at NOL. His most popular piece was “Italy and the Belt and Road Initiative,” and most of his other notes have been featured on RealClearWorld‘s front page. Tridivesh has also been working with me behind the scenes to unveil a new feature at NOL in 2020, and I couldn’t be more humbled about working with him.
Bill had a slower year here at NOL, as he’s been working in the real world, but he still managed to put out some bangers. “Epistemological anarchism to anarchism” kicked off a Feyerabendian buzz at NOL, and he put together well-argued pieces on psychedelics, abortion, and the alt-right. His short 2017 note on left-libertarianism has quietly become a NOL classic.
Mary had a phenomenal year at NOL, which was capped off with some love from RealClearPolicy for her “Contempt for Capitalism” piece. She kicked off the year with a sharp piece on semiotics in national dialogue, before then producing a four-part essay on bourgeois culture. Mary also savaged privileged hypocrisy and took a cultural tour through the early 20th century. Oh, and she did all this while doing doctoral work at Oxford. I can’t wait to see what she comes up with in 2020.
Aris’ debut year at NOL was phenomenal. Reread “Rawls, Antigone and the tragic irony of norms” and you’ll know what I’m talking about. I am looking forward to Dr Trantidis’ first full year at NOL in 2020.
Rick continues to be my favorite blogger. His pieces on pollution taxes (here and here) stirred up the libertarian faithful, and he is at his Niskanenian best on bullshit jobs and property rights. His notes on Paul Feyerabend, which I hope he’ll continue throughout 2020, were the centerpiece of NOL‘s spontaneity this year.
Vincent only had two posts at NOL in 2019, but boy were they good: “Interwar US inequality data are deeply flawed” and “Not all GDP measurement errors are greater than zero!” Dr Geloso focused most of his time on publishing academic work.
Alexander instituted the “Sunday Poetry” series at NOL this year and I couldn’t be happier about it. I look forward to reading NOL every day, but especially on Sundays now thanks to his new series. Alex also put out the popular essay “Libertarianism and Neoliberalism – A difference that matters?” (#10), which I suspect will one day grow to be a classic. That wasn’t all. Alex was the author of a number of my personal faves at NOL this year, including pieces about the Austro-Hungarian Empire, constructivism in international relations (part 1 and part 2), and some of the more difficult challenges facing diplomacy today.
Edwin ground out a number of posts in 2019 and, true to character, they challenged orthodoxy and widely-held (by libertarians) opinions. He said “no” to military intervention in Venezuela, though not for the reasons you may think, and that free immigration cannot be classified as a right under classical liberalism. He also poured cold water on Hong Kong’s protests and recommended some good reads on various topics (namely, Robert Nozick and The Troubles). Edwin has several essays on liberalism at NOL that are now bona fide classics.
Federico produced a number of longform essays this year, including “Institutions, Machines, and Complex Orders” and “Three Lessons on Institutions and Incentives” (the latter went on to be featured in the Financial Times and led to at least one formal talk on the subject in Buenos Aires). He also contributed to NOL‘s longstanding position as a bulwark against libertarian dogma with “There is no such thing as a sunk cost fallacy.”
Jacques had a number of hits this year, including “Poverty Under Democratic Socialism” and “Mass shootings in perspective.” His notes on the problems with higher education, aka the university system, also garnered plenty of eyeballs.
Michelangelo, Lode, Zak, and Shree were all working on their PhDs this year, so we didn’t hear from them much, if at all. Hopefully, 2020 will give them a bit more freedom to expand their thoughts. Lucas was not able to contribute anything this year either, but I am confident that 2020 will be the year he reenters the public fray.
Mark spent the year promoting his new book (co-authored by Noel Johnson) Persecution & Toleration. Out of this work arose one of the more popular posts at NOL earlier in the year: “The Institutional Foundations of Antisemitism.” Hopefully Mark will have a little less on his plate in 2020, so he can hang out at NOL more often.
Derrill’s “Romance Econometrics” generated buzz in the left-wing econ blogosphere, and his “Watson my mind today” series began to take flight in 2019. Dr Watson is a true teacher, and I am hoping 2020 is the year he can start dedicating more time to the NOL project, first with his “Watson my mind today” series and second with more insights into thinking like an economist.
Kevin’s “Hyperinflation and trust in ancient Rome” (#6) took the internet by storm, and his 2017 posts on paradoxical geniuses and the deleted slavery clause in the US constitution both received renewed and much deserved interest. But it was his “The Myth of the Nazi War Machine” (#1) that catapulted NOL into its best year yet. I have no idea what Kevin will write about in 2020, but I do know that it’ll be great stuff.
Bruno, one of NOL’s most consistent bloggers and one of its two representatives from Brazil, did not disappoint. His “Liberalism in International Relations” did exceptionally well, as did his post on the differences between conservatives, liberals, and libertarians. Bruno also pitched in on Brazilian politics and Christianity as a global and political phenomenon. His postmodernism posts from years past continue to do well.
Andrei, after several years of gentle prodding, finally got on the board at NOL and his thoughts on Foucault and his libertarian temptation late in life (#5) did much better than predicted. I am hoping to get him more involved in 2020. You can do your part by engaging him in the ‘comments’ threads.
Chhay Lin kept us all abreast of the situation in Hong Kong this year. Ash honed in on housing economics, Barry chimed in on EU elections, and Adrián teased us all in January with his “Selective Moral Argumentation.” Hopefully these four can find a way to fire on all cylinders at NOL in 2020, because they have a lot of cool stuff on their minds (including, but not limited to, bitcoin, language, elections in dictatorships, literature, and YIMBYism).
Ethan crushed it this year, with most of his posts ending up on the front page of RealClearPolicy. More importantly, though, was his commitment to the Tocquevillian idea that lawyers are responsible for education in democratic societies. For that, I am grateful, and I hope he can continue the pace he set during the first half of the year. His most popular piece, by the way, was “Spaghetti Monsters and Free Exercise.” Read it again!
I had a good year here, too. My pieces on federation (#3) and American literature (#4) did waaaaaay better than expected, and my nightcaps continue to pick up readers and push the conversation. I launched the “Be Our Guest” feature here at NOL, too, and it has been a mild success.
Thank you, readers, for a great 2019 and I hope you stick around for what’s in store during 2020. It might be good, it might be bad, and it might be ugly, but isn’t that what spontaneous thoughts on a humble creed are all about? Keep leaving comments, too. The conversation can’t move (forward or backward) without your voice.
A good friend of mine encouraged me to read this note published by James Jay Carafano, Vice President of The Heritage Foundation.
Despite being as compelling as it is well intentioned, the article misses to mention one of the main arguments for free markets: what once Friedrich Hayek described as “the competition as a discovery process.”
Indeed, the concept is insinuated in Carafano’s piece of writing: “He decided to make a splash in the sports car market by jumping into the race car racket. Initially, he planned to do it by buying the world’s premier race car manufacturer, Ferrari. But that plan fell flat. So Ford moved to Plan B: to field his own, all-American team.”
Businessmen, like any other kind of people, are rational: initially, they try to maximize their profits by avoiding competition. They are not heroes and nobody can ask them to be so. People, businessmen included, respond to incentives.
When there is not any other choice than competition, then innovation, ingenuity, and creativity arise. Not because of a change in the mind of certain businessmen, but for new innovative entrepreneurs outperform the non competitive ones.
The free market capitalist system James Jay Carafano praises is mostly an institutional arrangement named -once again- by Hayek as “competitive order.” Nevertheless, the most interesting question for our times is not about the virtues of the said free market capitalist system -which seem to be out of discussion- but whether competition under the rule of law deserves to have a Kantian “Cosmopolitan Purpose.”
Institutions, whether formal or informal, consist of limitations on behaviour that allow structuring an order of human interaction (North, D.C., 1991). Such institutions endow decisions with their agents of transitivity and, consequently, with rationality and predictability. That is to say, an institution allows to conform expectations on a range of events dependent on individual decisions that will happen and, above all, on another range of events that will not happen or, if they do happen, they will generate an obligation to repair (either to a private individual through a pecuniary indemnity or to society through a criminal sanction).
For these reasons it is interesting to compare institutions with algorithms: a set of automatic procedures -and therefore devoid of arbitrariness on the part of any of the agents- that, according to the data provided by the environment, yield a range of possible results. In a modern political legal system (equality before the law, division of powers, political responsibility of high officials, principle of closure, etc.), such results show at the individual level a certain range of prohibited actions (the aforementioned principle of closure, everything that is not prohibited is allowed). At the individual level, an institution as an algorithm will allow us to predict what an individual will not do, but not what he will concretely do outside of that range of prohibited actions. At the governmental level, the opposite occurs: institutions allow us to anticipate what judicial decisions will be, which in turn will have to review laws and decrees that violate the rights and guarantees of individuals.
However, while institutions can function as algorithms, providing predictability to individual decisions and policies, they cannot function in a vacuum, but they need to be integrated into a legal and political system. This is so that it is impossible to enunciate them if it is not within the parameters configured by such systems. If institutions are algorithms, legal and political systems are abstract machines that select and integrate such institutions. It is the institutions integrated into a legal and political system that constitute a framework of incentives for human action.
Such institutions evolve following a natural selection pattern, when the legal-political system allows to act a negative feedback system mainly articulated by judicial decisions and precedents that readjust their meaning and content for the resolution of concrete controversies based on principles emanating from the legal system itself. Of course, each system represents the materialization of a set of values. Those of modernity, for example, are based, among others, on the dignity of the human person, which translates into the right to individual autonomy.
An ethic of political responsibility that defends such values can be carried forward by rescuing an abstract system of dispute resolution between individuals that refrains from designing society from a central command. In many cases, such an ethic of responsibility must face ideological political programs that are presented under the guise of an ethics of principles.
Such antagonism is asymmetric, since the central design of society presents its followers with a concrete model and the promise that everything works. Although, this only leads, in practice, to an increasing number of decisions based on expediency. Thus, the opposite of the predictability and absence of arbitrariness of a system of spontaneous coordination of individual plans.
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.
There is a thin line between the abstract model of “natural selection of institutions,” its instantiation in an imaginary example that interprets it and the application of that theory to interpret historical experience. The latter does not test the model, but is the result of the organization of the record of events around this interpretive model. The instantiation in an imaginary example is a visualization that allows us to identify the inconsistencies in the model -if there are any- and to test general predictions about the behaviour of the variables. Such interpretations of the model assume that the rest of the variables remain unchanged, that is, the ceteris paribus condition.
If the abstract model does not have inconsistencies, i.e.: if in its imaginary interpretation, contradictory events do not arise, and, nevertheless, its explanatory or predictive power is contradicted with the experience, this does not imply a refutation. On the contrary, it is an indicator that another set of events are acting that neutralize the effects of the process described by the theory. In this case, although the theory does not achieve results in terms of explanations and predictions, it does fulfil a heuristic function: that is, it inspires new lines of research and discovery.
One such line of such lines is, for example, how politics plays out in the process of natural selection of social habits and practices. As indicated by the School of Public Choice, the regulations on economic activity that affect the distribution of corporate profits, assign monopolies, restrict imports, intervene in the market of credits and capital to favour certain activities over others, among others many cases of economic dirigisme encourage the development of practices known as “lobbying.” Investing in human capital and new technologies means an opportunity cost that will never be assumed if higher yields are obtained as a result of influencing government decisions that protect the producer from competition, or allowing the State to sell at a price higher than the market price. Therefore, if experience is indicating a low capacity for innovation, lack of initiative and stagnation, it is most appropriate to focus the observation on which incentives are acting effectively in that country.
The counterpart of the logical models is the empirical models, the latter consist of abstractions of elements that occur in reality, highlighting their common notes to obtain various classifications of such elements, and they are a simplified scheme of perceived reality. However, any system of abstraction of the common notes of a set of objects requires a prior conceptualization of such notes as defining a set or class. In order to classify diverse populations in countries, it is previously necessary to be in possession of the notion of population, for example.
On the other hand, abstract notions are not necessarily conformed by a deliberate operation of consciousness, but by the perception of series of events that are repeated and differentiated from one another, generating in the cognitive apparatus an association of diverse stimuli. Out of habit arises the expectation that from the appearance of a particular event or series of events a range of determined events will follow and not follow another range of events of various kinds. On these spontaneous classifications, articulated around the repetition of events, their differential in the system of stimuli of the nervous apparatus, and the predisposition generated by the habit of waiting and ruling out the consequent appearance of other events and stimuli is that consciousness is conformed and the cognitive apparatus of the knowledge subject.
But, likewise, those “spontaneous classifications” allow the appearance of an abstract set of functionally related notions whose ordering does not depend on a deliberate decision. These are the cases of norms with empirical observation and of what Douglass North called “informal institutions.” The value of the contribution of Friedrich Hayek in Law, legislation and Liberty consists in both the positive legal norms (deliberately created by the legislator) and the informal institutions that condition our conduct also depend for their enunciation of that abstract order of notions that it arises from pure experience.
These logical models -as they are abstract- that make up the consciousness and the cognitive apparatus of the subjects, are in permanent trial and error testing and, therefore, in continuous reformulation. It is a kind of negative feedback process in which the frustration of an expectation is corrected in the interpretative scheme of reality that the individual has, in a process of continuous readjustment. From the invariant reiteration of a certain series of events, a structure is formed that serves as a parameter to order other events of less frequency or more erratic behaviour.
To the extent that the subject continues its experimentation, the spontaneous classification system that makes up its consciousness becomes more complex, incorporating new ranges of events, adjusting its frequency and incorporating new structures. These are the relative limits of knowledge. They depend on the experimentation and the readjustment of the abstract patterns that allowed the subject to classify the events of reality.
However, knowledge can also grow in another direction: consciousness can focus not on the events that come from its perceptions but in the analysis of the classifications themselves. In this activity, the abstract classification schemes that had been shaped by habit do not apply to reality, but reflect on these classifications and extend and reformulate them, not in terms of their experience, but in virtue of their abstract speculation. This is the task of deliberately shaping the logical models to be applied to the interpretation of reality.
The elaboration of a legal theory -for example, about representation-, the description of a market structure -for example, monopolistic competition-, the outline of a sociological explanation -through the ideal types statement, to cite a case- , are situations in which the subject of knowledge does not experiment on events, but reformulates the classificatory systems that until then had arrived spontaneously. Knowledge in this case does not grow in specificity, but increases in levels of abstraction.
These are the cases in which the historian questions not only the interpretative frameworks he uses, but also the conditions that underlie these interpretative frameworks. The philosophy of science dabbled in the scientific paradigms (Thomas Kuhn), or in the research programs (Imre Lakatos), or in the great stories (Jean Francois Lyotard). The common denominator of these three concepts can be found in that they lack an “author,” they are inferences, true conjectures that we make about the framework in which a given scientific community develops tacitly.
Many interpret these currents of philosophy of science, although diverse, as relativistic, since they lend themselves to postulate that the statements of science are conditioned by the historical circumstances that serve as the frame of legitimation. There would not be a truth in itself, but a truth enunciated in a frame of reference. Another way to see it is to interpret these scientific communities structured around a set of practices, procedures, and validation rules whose origin is mainly spontaneous in a sort of “abstract discovery machines.”
In general, a series of physical devices conformed in a process of transforming inputs into exits is called a machine. But such physical devices are organized according to an abstract plane that assigns them functions for a certain process. This plane can be interpreted through mental operations without resorting to the construction of the physical machine, throwing said mental operations verifiable results; we are faced with an abstract machine. In recent times, the term “algorithm” has also been used to compare an information process that does not depend on the free will of the researchers, but consists in the follow-up of an automatic process.
In this line, Friedrich Hayek characterized competition as a process of discovery, that is, as an abstract machine that processes data and yields results that describe reality. In fact, the discovery would be the only function of a system of free competition that gives a differential over the rest of the systems. A monopoly, whose margins of profitability were controlled either by a maximum price or by a tax on profits, would be more efficient in terms of the production of a given good, than a set of small producers without market power and without scale. The scale of the monopolistic producer allows greater efficiency at a technological level than small producers competing with each other, being able to resolve economic inefficiency through regulatory or tax tools. However, in what a system of free competition is incomparably superior is in terms of the discovery process that drives its own dynamics. These are the benefits that innovation brings, as a consequence of an unanticipated system of free competition or competition, which far exceed all the supposed advantages of a regulated system.
It is this innovation that produces, most of the time involuntarily, an institutional system of free competition, called by Acemoglu & Robinson “inclusive economic institutions” – the one that allowed Hayek to characterize it as a process of discovery, in other words, as an abstract innovation machine.
This characterization of innovation processes through institutions that function as algorithms that produce new knowledge can also be extended to scientific communities and to the evolutionary process of legal norms.
The institutional evolutionism has a history before Darwin, parallel to it and even later divergent. In parallel, Darwin for the elaboration of his concept of natural selection took from the political economy the notion of population analysis by Robert Malthus, the one that also comes from the analysis of the institutions as a framework of incentives. At the time Malthus sought to refute the anarchist philosopher William Godwin, who proposed abolishing marriage as a social institution. Mindful that the extra-marital children lacked at that time fewer rights than those born in marriage, Malthus replied that such a measure would lead to an exponential growth of the population and, therefore, marriage as an institution fulfilled the containment function of population growth. A similar analysis makes Malthus of the laws of poor: aid to the poor increases the cost of food, which generates more poor, assuming the dynamics of a vicious circle. The judgments of Malthus have an empirical character that makes them susceptible of refutation, it can be verified if Malthus was right or wrong. However, what has an abstract, methodological, propaedeutic character is its population analysis. That is what Darwin took to conceive natural selection processes and that today can be used in the analysis of institutional evolution.
When one speaks of a political, economic, or social institution displacing another, such movement becomes effective at the level of the populations. For example, literacy and accounting applied to business administration generates a leap in efficiency in the administration and auditing of businesses. It is not surprising that literate traders who carry inventory and accounting processes displace illiterate traders. This is how literacy and accounting can be extended without any central political decision, nor any disruptive phenomenon. (Of course, the modern state, in its process of rationalization, can impose the obligatory nature of certain principles of accounting or schooling, but not necessarily depend on it.)
To a large extent, the arrival of European immigration to South America in the second half of the 19th century consisted in the importation of habits, practices and techniques that immigrants already incorporated. It is widely known the arrival of new techniques of field work and breeding and care of livestock. Also many immigrants who arrived implemented inventory practices and cash management that were leaking into the rest of the population.
William Easterly characterizes this phenomenon as a leaking of knowledge. Following the example of the previous paragraph: those immigrants were more competitive because they brought with them new techniques of rationalization of time, they took inventories and accounted for income and expenditure of funds methodically. This advantage translated into prosperity and expansion of their businesses. However, in order to implement this type of “technology” they must necessarily share it with their collaborators. There is in these collaborators an incorporation of human capital through what Gary Becker called “on-the-job training”: a learning of how to work at a general level (to arrive at schedule, to concentrate on the task, to meet deadlines) and also at a particular level (particular techniques of sowing, raising livestock, managing a certain inventory system). Human capital is a set of habits and practices that “travels” incorporated in each “apprentice”. In this way, the entrepreneur can finance himself by paying part of the compensation to the dependent in kind: the training. On the other hand, there is the phenomenon characterized by Easterly as “leakage of knowledge”. This knowledge is transmitted, migrated, from person to person. To the extent that it reports a greater utility to its “bearer” it is expanding, extending, throughout the social fabric, often not as a deliberate education, but as an unintended consequence of the use of such knowledge, which, for can be put into practice, needs the help of more than one person.
It is in this sense that what evolve are the practices and habits, in this case of work and business. It is extended by its incorporation by individuals who adopt them, often involuntarily, either through the incorporation of guidelines from their place of work, or through imitation or emulation. Following the terminology of evolutionism, practices and habits are the unit of evolution and the people who incorporate their replicators. A practice or habit is more successful to the extent that it extends into the population. In turn, the populations carrying practices and habits more adapted to the environment will extend them to others.
The affirmation that one should not judge the historical past with current values forms a topic as widespread as the disobedience to it. However, a conscious exercise of the evaluative critique of the past allows us to identify continuities and disruptions in institutional patterns, i.e., in systems of incentives that are considered legitimate, whether by virtue of a question of social utility or principles.
Caste systems are obvious examples in which a differentiated attribution of rights, that is to say the legal protection of the interests of individuals assigned to a certain ethnic group, was interpreted as legitimate because it was a matter of principle.
While a caste is defined by an ethnic component, or at least with respect to its physiognomic marker, in the status system the ethnic differences lose preponderance, to transfer it to the different private orders or privileges that determine a function within the society. In both cases, both in the system of castes and status, it should be noted that they not only define privileges for its members but mainly establish obligations: war, worship or field work, for example. While the cult is reserved for a certain caste, in the status societies the cult is an institutionalized function, an order, whose members fulfilled certain procedures of admission and permanence.
In any case, beyond the similarities and differences in the systems of castes and status, what matters in this case is to emphasize that such attributions of rights and obligations, that is, of legal protection of interests, collective or particular, do not respond to a question of social utility but of principles. In the first place, because in such societies the power is fragmented and therefore there is no central power that can perform a critical judgment on the social utility of a given system of incentives; at the most, if there is a king, he assumes a role of primus inter pares, an arbitrator between castes or statuses or protector of order.
The emergence of central governments demanded the emergence of stable bureaucracies supported by a tax system to be systematized in a public accounting, that is, a calculation of utility. On the other hand, the incorporation of abstract procedures from private law to the administration of the government, displacing the systems of sages, mandarins, humanists, etc., allowed a better centralization and control and rational administrative decisions. However, what is important to note here is that such institutional innovations did not necessarily depend on a disruptive change, such as a revolution, but that many cases occurred through an evolutionary process, in which more efficient institutions displaced obsolete ones.
The emergence of central governments replaced fragmented political and social systems, because centralization allows a calculation of utility in decision making, which yields better results -not always but most of the time- than a decision system based mainly on honour. Most of the time but not always, since there is the possibility that, in a situation of extreme complexity, the calculation of utility has a wide margin of error and, in contrast, in such situations, a pattern of decisions based on emotions, traditions, or moral principles work as a kind of heuristic better adapted to the circumstances. After all, for the calculation of utility to be viable, it must have tools such as an accounting system, a literate bureaucracy, an abstract procedural system, among others. If you do not have such means, hardly a decision based on utilitarian issues is far from whimsical and arbitrary. Faced with such cases, traditional structures could be more efficient.
Another issue to consider is not to be confused between the rationalization of political power in a central administration – public budgets and control of their execution, a neutral and efficient tax system, administrative decisions of a particular nature adopted according to abstract and general procedures – with the rationalization of each subsystem of society and even of the individual in particular.
It is true that, as indicated by Max Weber, the bureaucratization of political power leads to the gradual bureaucratization of the rest of society: the generalization of the same accounting system for all companies, in order to verify compliance with tax obligations, the public instruction of the whole population, to name a few examples. These processes of rationalization are extremely beneficial and generate a jump in productivity. This is what William Easterly, in his work The Quest for Economic Growth, highlights as a phenomenon in which knowledge leaks and spreads throughout society. In this way the relations of complementarity generated by the knowledge shared with the rest of the individuals that make up a given community are much more important than the substitution effect could give an advantage to a single possessor of such knowledge. For example, having knowledge of accounting represents an advantage over the competition, but that all companies are organized according to reasonable and homogeneous accounting principles allows a jump in productivity throughout the system that yields even greater individual profits. Likewise, not only the leaking of knowledge is beneficial for all members of society, but reached a point is inevitable.
However, this does not mean that a rationalization of the society as a whole and of the individuals that compose it is necessarily possible or desirable; much less that such process is directed from a central political power. A process of compulsive and totalizing rationalization is not always modernizing. Both in biological and cultural terms, the evolution occurs in the margins, it is the mutations of small isolated populations that allow them to adapt to changes in the environment.
Moreover, the totalizing political systems, which not only seek to define from a central power each one of the functions of the social subsystems in function of a supposed calculation of utility, also seek to build a notion of “citizenship” that stifles the sphere of autonomy that defines each individual with civic obligations. Such conceptions are the first to see the processes of innovation and creative destruction and any individual initiative as dangerous. Thus, by cutting off all possible adaptation to changes in circumstances, by mutilating all possible discoveries, it is not uncommon for such political systems to experience stagnation and be displaced by other systems more open to innovation – or at least be invaded by results of said competition, discovery and innovation processes.
It is a characteristic feature of Modernity to separate between private morality and public ethics. The first concerns the ethics of principles by virtue of which each individual governs his own sphere of autonomy. Each individual, while not interfering in the interests of third parties, is a legislator, judge, and part of their own moral issues. The law regulates conflicts of interest between individuals, giving legal protection to a certain range of interests and systematically denying it to others (Friedrich Hayek, Law, Legislation and Liberty, Volume I, “Norms and Order”, 1973). For example, in almost all modern legal systems the interest to move and, fundamentally, to leave a territory is protected through the freedom of locomotion. In the meantime, a producer may feel prejudiced by the mere existence of competition and nevertheless he may be denied the right to protection of his monopoly (since a “right” is a legally protected interest). In both cases, questions of principle and questions of social utility are combined.
In most modern systems, the interest to circulate freely is solved more by addressing questions of principles than of social utility – the right to freedom of locomotion is enshrined without addressing arguments about the utility of denying legal protection with respect to another interest. While the problems of protectionism and competition are considered mainly in terms of their social utility, the arguments about whether a certain individual or group of individuals have, as a matter of principle, the right to monopolize an economic activity by the mere fact of belonging to a certain ethnic group, estate, or guild today sounds ridiculous, but not in the past.
The widespread distinction practiced by Max Weber between ethics of conviction and ethics of responsibility continues in force. Individuals, in their private lives, have the right to make decisions following the ethics of conviction, although their principles may be debatable, obsolete, incongruous, and arbitrary. In any case, the consequences will have to weigh on the agents of the decision themselves. On the other hand, the consequences of the decisions of politicians extend to the whole society. The ethics of responsibility becomes relevant here, which, although it may come into conflict with the ethical principles most widely spread among members of society – that is, the current morality – it must address issues related to social utility. This is to say that a substitution of the current morality for welfare economics would be operated.
However, the Weberian notion of ethics responsibility brings with it all the problems of instrumental reason: the means-that is, the resources to be sacrificed-must be proportional to the ends-in this case, the social utility-but remains open to definition what are the values that will define social utility. This is how the question of principles is reintroduced, the discussions about what is right and what is wrong, i.e. morality, in the political sphere. Correlatively, the critiques around the notion of subjective or instrumental reason once formulated by Max Weber are also applicable to the aforementioned welfare economy, so that they retain special validity.
Countries can change their course, they can turn from stagnation towards growth, as it is the case of South Korea in the last fifty years. They can also decline after a boom period. Together with other examples of successes and failures, these are indications that economic performance does not depend on geography, culture, or the education of ruling elites. Following the line expressed by other authors such as Douglass C. North (Institutions, Institutional Change and Economic Performance, 1990), William Easterly (The Elusive Quest for Growth, 2001) and Daron Acemoglu and James A. Robinson (Why Nations Fail, 2012), it is appropriate to maintain that the economic performance of nations, expressed in their growth, depends on the incentives provided to individuals by institutional frameworks. The incentive systems -that is, the institutions- evolve, and with them the fate of the countries. But to achieve such evolution, there must first be a change in the level of commonly accepted notions about what is right and what is wrong for governments to put into practice. That is, what are the principles that should inform the legislative policy that puts into effect such institutional frameworks to order the expectations of society.
[Editor’s note: This is the first part of a new series. You can find the full essay here.]
Humankind’s struggle with moral is of course nothing new, it rather inherent to our nature to revolt against the meaningless world and the manmade system of reason. Furthermore, moral values vary over a specific period of time swinging from rather high moral standards to very low ones. Regarding morality as an abstract compass guiding our thought, goals and behaviour, Economist, in general, are not known for dealing in depth with the metaphysical reason behind our behaviour yet they explore and explain human actions through our surrounding incentives, which also structure and direct our action. Economist such as Daron Acemoglu & James Robinson or William J. Baumol have explored these changes in human behaviour through changing incentive structures thoroughgoingly.
However, folks mourning the moral decline of today’s west often fail to provide concrete evidence for their argument. They either cherry-pick events or legislatures to infer a macro trend inductively or they lose themselves in difficult language trying to somehow save their argument by making it incomprehensible. I cannot help feeling that mourning the moral decay of the west has somehow become a shibboleth for eloquently expressing the “Things used to be way better back then” narrative. However, I admit that there were probably a couple of sociological papers who have covered this issue very well which I am unaware of. Contrary, the public debate was dominated by a few grumpy intellectuals holding the above-named attitude. I was recently provided with a very concrete set of indicators to measure moral decline while digging through Samuel P. Huntington’s infamous classic “The clash of civilization” from 1996. He states that there are five main criteria which indicate the ongoing decline of moral values in the West. 
After being provided with a concrete framework to quantify the moral decline of the west, I was keen to see how the moral decline of the west has developed in the 20 years since the book has first been published in 1996. Although I also take issue with some of these indicators to measure moral decline, I avoid any normative judgement in the first part and just look at their development over time. Furthermore, since Samuelson himself mostly takes data from the USA representing the West, I might as well do so too for the sake of simplicity. So, let’s see what happened to moral values in the West in the last years by checking each of Huntington’s indicator one by one.
1. Increasing antisocial behaviour such as acts of crime, drug use and general violence
Apart from the global long-term trend of declining homicides, we can also observe a recent downward trend in the reported violent crime rate since 1990 in the USA. Scholars agree that the crime rate is in an extreme decline. Expanding the realm towards Europe, you will see similar results (see here).
Despite these trends, the public (as well as some intellectuals as well I assume) vastly still holds a distorted perception of the crime rate. The sharp decline in actual crimes strongly contradicts the fact that a majority of the people still uphold the myth of increasing crime rates.
Regarding drug use in the USA, it is important to mention that the absolute amount of illicit drugs consumed has slightly gone up since 1990. This development is mostly driven by an increasing consumption of marijuana: “Use of most drugs other than marijuana has stabilized over the past decade or has declined.”, states the National Institute on drug abuse in 2015.
2. Decay of the family resulting in increasing divorce rates, teenage motherhood and single parents
It is hard to measure the “Decay of the family” itself. Luckily, Huntington further concretizes his claim by naming some of the measurable effects. There is nothing much to do to refute these statement except for looking at the following graphs.
a) Firstly, the divorce rate is sharply declining.
b) Second, teenage pregnancy rates are also dropping since 1990.
Source: National Vita Statistics Report
c) Third, the number of Americans living in single parenthood is not increasing drastically since 1990.
I often take issue when (especially conservative) scholars mourn the declining importance of family. Even if there are certain indicators which would back up Huntington’s claims, he does not name them himself. While it is indeed true that “family” as an institution is undergoing changes, there is no evidence (at least named by Huntington) to back up the claim of a decline of its importance.
3. Declining “social capital” and voluntarism leading to less trust.
It is indeed true, that the adult volunteering rate declined from early 2000 to 2016 from 27.4% to 24.9%. Interestingly, it recently bounced back to a new high in 2018, hitting the 30% target. Really the only point where one must agree to Huntington’s claim is the decrease of interpersonal trust as well as trust in public institutions. This trend is indeed very worrisome considering that trust is a major factor for flourishing societies.
4. The decline in work ethic
The research here is a little bit tricky and points in both directions. Although there has been wide academic coverage of the millennial work ethic scholars could not find a consensus on this issue. Its is especially difficult to extract the generational influence from other key determinants of work ethic, such as position or age. Academics warn to mistake the ever-ongoing conflict between young vs. old with the Boomer vs. Millenial conflict. I haven’t settled my opinion on this one. These Articles from Harvard Business Review and Psychology Today provide a good overview of both sides of the medal.
5. Less general interest in Education
This indicator is particularly interesting for me because as a member of the 90’ generation, I have experienced quite the opposite in Germany. But let’s have a look at the data.
Despite ranking only in the middle in a global country comparison, the US students still made a huge leap in terms of maths and reading proficiency, which only slowed down in 2015:
Source: Pew Research Center
Furthermore, the overall educational level of the USA continues to rise, resulting in the fact that “the percentage of the American population age 25 and older that completed high school or higher levels of education reached 90% [for the first time ] in 2017.” Contrary, there are still major differences when one looks at features like race or parent household (See here), but the overall trajectory of the educational level is sloping upwards.
What do these criteria measure?
As you can see, there is little to no evidence to empirically back up the claim of western moral decay. Furthermore, while many case studies have shown that lack of interpersonal trust, lack of education or a declining work ethic can pose a great threat to society, I refuse to see a connection (a no known to me study disproves me here) between (recreational) drugs consumption, alternative family models, increasing hedonism and moral decline. Thus I believe that many advocates of the moral decay theory regard it as an opportunity to despise developments they personally do not like. I do not imply that everyone arguing for the moral decline of the west is unaware of the global macro-trends which heavily improved our life, but I highly doubt their assumption, that we are currently in a short-to-medium term “moral recession”. Even when one upholds the very conservative statements such as drug consumption adding to moral decline, is hard to argue that we are currently witnessing a moral decay of the west. Contrary, It may be true that Huntington has observed something different in the period before publishing “The clash of civilization” in 1996. Of course, I myself witness the ongoing battle against norms on the increasing hostility towards the intellectual enemy in the west, but one should always keep in mind the bigger picture. Our world is getting better – in the long- and in the short-run; There is no such thing as a moral decline of the West.
 Huntington, Samuel P. (2011): Kampf der Kulturen. Die Neugestaltung der Weltpolitik im 21. Jahrhundert. Vollst. Taschenbuchausg., 8. Aufl. München: Goldmann (Goldmann, 15190). P. 500