Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 9 of 12)

If individual freedom is defined as the absence of arbitrary coercion – as F. A. Hayek did in his The Constitution of Liberty (1960) – it is clear that a government that bases most of its decisions on rules known to all will have to be less arbitrary than the one who makes decisions according to his own criteria of opportunity. Of course, this also requires an effective notion of the principle of equality before the law, since decisions based on norms that prescribe privileges according to definitions of races, estates or social classes will also be arbitrary. The same occurs with the other characteristics of what some authors have called a free government: division of powers, system of cross-checks between them, declarations of rights and guarantees, principles such as that of closure, the notion of representativeness of public offices and the requirement of their suitability to exercise them and other elements that make up the Rule of Law. The protection of individual liberty as the absence of arbitrary coercion comprises a whole set of political institutions and judicial procedures that make the limits to the free will of citizens and rulers legitimate. However, the level of law enforcement has generally been considered sidelong for both political and legal theory, relegating it to a purely sociological and even anthropological level. The law enforcement thus appears as a kind of “logical form” of law and politics, since it does not fully belong to either of the two territories, but rather delimits them.

This meant that the level of normative application has been seen as a social phenomenon, which in any case could be studied by an intersection between sociology and economics, as can be seen in the studies carried out by Gary Becker at the time; the same as the approach practiced centuries ago by Cesare Beccaría (who Joseph Schumpeter would label “the Italian Adam Smith”).

However, the high or low level of application of legal norms does not in itself constitute a sociological or anthropological phenomenon, since the commitment to the effective law enforcement depends directly on a political decision. This political decision activates a series of feedback mechanisms in society that allows it to be described as an autonomous and automatic system, as is any incentive system, but such uses and social practices are not the cause of regulatory compliance or non-compliance, but rather its adaptive response to the aforementioned political decision that underlies at all times.

Therefore, an approach that characterizes low regulatory compliance as the social response to the political decision to implement a low level of law enforcement requires a behavioral model consisting of individual utility-maximizing agents in their decisions, both at the level of citizens as well as government officials and magistrates. According to this behavioral model, it is government agents who seek to maximize their power by reducing the level of law enforcement, in order to gain discretion in its exercise; while ordinary citizens seek to minimize the costs of such discretion on the part of the rulers trying to evade compliance with a law that in a relatively low number of cases is actually applied.

Putting an end to such a state of affairs depends on a political decision: that of enforcing the law for the majority of cases and limiting exceptions to it to the minimum possible. However, since this will bind the rulers to the law and reduce their discretionary power, it should not be expected that such a decision will be taken spontaneously by the governing bodies, but under pressure from the branches of the state whose function consists of the control of government acts, such as the congress and the judicial system.

However, as already mentioned, the political system itself is in a trap, since raising the levels of law enforcement right off the bat would mean making effective punishments and sanctions pressed for a lower level of enforcement. For this reason, an improvement in the levels of law enforcement requires, previously or at least simultaneously, a reduction in the volumes of repressive sanctions, fines and compensation. A similar reasoning must be done for tax collection cases, since many times the tax levels discount a certain evasion rate. Reducing the tax evasion rate requires a prior or simultaneous tax reduction.

Law enforcement and political regime

As has been stated, the degree of compliance with legal norms by a population does not depend on cultural issues (far from it, ethnic), but is a variable on which governments can influence in a decisive way. The main instrument that governments have when it comes to encouraging (or discouraging) citizens’ compliance with the right is to regulate the degree of law enforcement. Once it has been decided what degree of regulatory compliance by the population the government intends to achieve, it remains to implement an efficient use of the budget item in order to achieve said objective while sacrificing the least amount of resources possible.

Thus, if a government decides that regulatory compliance should be close to 100%, then it will have to provide its supervisory system, security forces, and its judiciary with the necessary resources to obtain such a degree of law enforcement that show a clear signal to the population that the sanctions, repressive or pecuniary, that the law provides, will have to be applied. This will mean that whoever complies with the law will not incur any opportunity cost in terms of waiving possible advantages derived from its non-compliance, since such non-compliance by its competitors and other third parties is highly unlikely.

Of course these considerations belong to the field of “instrumental reason.” Before discussing the necessary mechanisms to achieve a high degree of compliance with the law by the population, it is imperative to discuss what type of law such a political regime will have. A democratic, modern, and liberal regime requires that the laws respect and ensure the validity of certain values, such as recognition and respect for human dignity, the right of each individual to have their own life plan, or as at the time It had been listed by the Scottish philosopher David Hume, ensuring stability in possession, his peaceful transfer of property, and the fulfillment of promises. It is useless to theorize about techniques to achieve a high degree of compliance with the law, if they are to be used by a regime that is dedicated to curtailing freedoms.

[Editor’s note: this is Part 9 in a 12-part essay; you can read Part 8 here or read the essay in its entirety here.]

Eye Candy: Gay marriage in Europe (2018)

NOL gay marriage Europe
Click here to zoom

Opponents of gay marriage might have trouble explaining this one, at least in the free world.

Too many shadows whispering voices. Faces on posters too many choices. If when why what how much have you got…

2018 Hayek Essay Contest

The 2018 General Meeting of the Mont Pelerin Society will take place from September 30 – October 6, 2018 at ExpoMeloneras and Lopesan Hotels in Meloneras, Gran Canaria, Canary Islands. As with past general meetings, the Mont Pelerin Society is currently soliciting submissions for Friedrich A. Hayek Fellowships. The fellowships will be awarded through the Hayek Essay Contest.

The Hayek Essay Contest is open to all individuals 36 years old or younger. Entrants should write a 5,000 word (maximum) essay that addresses the quotation(s) and question(s) detailed on the contest announcement (available at the above link). The deadline for submissions is May 31, 2018. The winners will be announced on July 31, 2018. Essays must be submitted in English only. Electronic submissions should be sent in PDF format to this email address ( Authors of winning essays must present their papers at the General Meeting to receive their award. The essays will be judged by an international panel of three members of the Society.

Please feel free to share this announcement with any individuals who may have an interest in submitting an essay for consideration of a fellowship award. All questions may be directed to the MPS Young Scholars Program Committee by email at or phone at +1.806.742.7138.

MPS Young Scholars Program Committee

On Robots and Personal Identity

When I came across this documentary on robots and their ability to carry on a conversation between each other, the well-known ideas on the spontaneous emergence of language inevitably crossed my mind. The resemblances to Hayek’s Sensory Order are obvious as well, notwithstanding his later remarks on negative feedback processes, which involve spontaneous orders that are borrowed, precisely, from cybernetics. But what grabbed my attention the most was the importance attached to the fact that the robots had a body. According to the documentary, the shape of the body of the robots allows them to develop certain patterns of classification for facts and behavior that would be different if their bodies were different as well. In this sense, “to have a body” is a requisite characteristic of the robots to make possible artificial intelligence; to evolve following a process of negative feedback.

That brought me back the works of Peter Geach on personal identity. He confronted John Locke’s notion of personal identity as mere memory and stated, instead, that the body was essential to the said concept. Memory and human body are, in order to develop an individual personality, inherent to each other.

This is relevant to our discussions about the definition of individual freedom. If the body is inherent to our personal identity, there are not much place left for Spinoza’s freedom of thought, or inner liberty, as the ultimate definition of individual liberty. Besides freedom of thought, we need freedom to move in order to be regarded as free individuals, and our sphere of individual autonomy should be extended to our body and its surroundings. Moreover, it would be impossible to exercise any freedom of thought and expression if such individual liberties are not protected.

Liberty and Homer

The ‘Expanding the Liberty Canon’ label is not adequate for some texts that ought to be discussed with regard to liberty, since they have something important to say about liberty, but even on an expanded inclusive definition cannot be said to put forward a case for liberty, certainly  not from the perspectives of classical liberalism, libertarianism, the liberty movement, or any other label for thinking which favours liberty understood as individual rights, markets, voluntary association, and rule of law over communalism, collectively directed distribution, state domination of society, and administrative rules.

I have plenty of further texts to discuss under the ‘Expanding the Liberty Canon’ heading, but here is a beginning to the ‘Liberty and…’ sequence. It is an appropriate starting point in that the epic poems associated with the name of Homer, The Iliad and The Odyssey are at the very beginning of European literature, culture, and knowledge. This is not say that there is pure beginning to Europe’s cultural and intellectual heritage with no precursors and no outside influence. It is to say that these are the first big texts in the history of anything that can be labelled European history. The name ‘Homer’ conceals considerable uncertainty about whether these poems have a single author and if so who.  What can be safely said is that these are long poems written down in approximately 800 BCE, drawing on a long oral tradition of sung poetry, referring to a world of Mycenaean late Bronze Age Greeks, who traded with and fought with the peoples of Anatolia, in a civilisation that disappears from the archaeological record in about 1 100 BCE.

On the side of Homer not being a hero of liberty is the apparent endorsement of a world where war and piracy have greater respect than trade and manufacture, the greatest role for a man is to defeat enemy armies and sack their cities, women’s role is to stay at home, do a lot of weaving, and obey their husband. Political authority is patriarchal-monarchical, based on the claim that kings are warrior-hero aristocrats are close to the gods. Ordinary people are deprived of choices and influence, subordinated to the hero-aristocrat class and may even be slaves. In The Iliad, a league of Greek kings lays siege to Troy for ten years, purely for reasons of honour connected with a Trojan Prince taking a Greek queen from her husband back to Troy. The violent destruction on enemy cities, the enslavement and murder of civilians, the organised theft of property are all part of the value system of Greeks and Trojans. In The Odyssey after various adventures on the way back from Troy, Odysseus massacres a group of aristocrats who have been trying to marry his wife during the twenty years of his absence, living in his palace using up the wealth, and follows this up with a massacre of those servant women who were too friendly with the massacred men.

So where does liberty come into this world of violence and traditionalist authority? One part of the answer to this question is that maybe the Homeric epics are critical of this world, at least in some part. The exploration of where there might be a critical distance in the Homeric poetry from the most disturbing aspects of the world it depicts gets into much detailed and questions of ambiguity to pursue here, but is something to bear in mind when reading Homer. Leaving that aside, there is the underlying issue of the formation of a world of poetic creation, which in some degree must be distant from and reflect on a world, so raising the possibility of individual critical perspectives.

Anyway, even staying at the level of the more direct and literal meaning, it portrays different possibilities of individual character and ways of being. In The Iliad we are see Achilles the proud angry warrior who lives to become the hero of song, even if that means dying young. His devotion to violence co-exists with a belief that he has rights as an individual against his overlord, a passionate devotion to his best friend, a capacity to overcome his angry nature when he allows the father of the Trojan hero, Hector, who killed his friend to take the body for honourable burial.

Hector himself has a near Achilles level of ‘heroic’ violence combined with a deep and self-effacing attachment to his wife and child. Many other possibilities of human individuality are explored including that of the most intelligent and cunning of the Greek leaders, Odysseus, who understands that war is won by stratagems as well as devotion to violence. This man of reflection, forethought and an early form of the life of the mind, becomes the centre of the second Homeric epic, The Odyssey, which recounts the ten years of his journey back from Troy to his homeland of Ithaca.

Odysseus starts back with his own fleet of ships carrying an army of Ithaca, by the time he gets back to Ithaca all of this is lost, and he is alone, in disguise playing the part of a vagabond when he arrives on his home island. Early in his adventures he described himself as No-man to trick his way out of danger from the giant Polyphemus and then proudly shouts his real name at the giant on his escape. This is at the base of his ten year journey since the god Poseidon is the father of  Polyphemus and takes revenge on Odysseus when Polyphemus can tell his father how Odysseus harmed him. Again and again Odysseus has to struggle with his own impulses and with the need to play a part, stretching his identity, in order to return to his island kingdom. So he is growing as an individual, exploring all the possibilities of individuality, including self-concealment, self-invention, and self-transformation.

The extreme violence of the return of Odysseus is followed by the brief description of a new beginning in Ithaca, an order of social peace in which a possible cycle of revenge is pre-empted through oaths and the prospect of justice settling differences rather than violence. This reconciling ending of The Odyssey itself builds on the sombre peace at the end of The Iliad, when a truce is agreed so that the city of Troy can bury and mourn its hero Hector, so that the values of peace and acknowledgement of individual suffering can stand up against the cycle of destructive violence.

In these and many other ways, Homeric epic offers much to stimulate thought about the nature of individuality and the kinds of social form which might allow individuals to flourish together, even in its depiction of the most destructive outcomes of human passions.

Expanding the Liberty Canon: Marsilius of Padua on the Defence of civic Peace

There is a leap of more than a millenium from  my last post on Seneca to Marsilius (originally Marsiglio) of Padua (c. 1275 to c. 1342). I am not saying that no one wrote any texts advancing liberty during that time, but the major texts of late antiquity and the Middle Ages up to the thirteenth century concerning political ideas lean towards the desirability, or at least unavoidability, of law making and governmental powers centralised in a monarchical figure, rather than constraints on power,  or a positive vision of individual autonomy.

One might argue that the spread of Christian monotheism enhanced the value placed on individuality, and that the codification of Roman law in Constantinople in the sixth century CE (commanded by the Emperor Justinian) advanced the idea of liberty under law. Even if we take a very positive view of those developments, and they are certainly deeply important, they can be no more than elements in the creation of laws and institutions that promote liberty.

There must be more to social and political liberty than a belief in an inner soul and the institutionalisation  of the law outside the individual. The importance of the individual and the rule of law at least require some further articulation in how to form a political community that recognises the merits of individual liberty in every sense.

There were great thinkers who addressed political questions  during the time between the early Roman Empire (Seneca) and the late Middle Ages (Marsilius of Padua), most obviously Augustine of Hippo (354-430), Al-Farabi (872-950), and Thomas Aquinas (1225-1274), but in my judgement they lean too far towards emphasising the sovereign power, assumed to be be ideally a monarch, who can enforce law and religiously inflected notions of virtue, to be regarded as promoters of liberty, even if much of what they wrote is of value from a liberty advocating point of view.

Others may disagree, Murray Rothbard for example thought of Aquinas as very close to his own individualist anarchist point of view, which however does not strike me as the strongest point in his writings. My argument is that Marsilius made a decisive step in turning a rich tradition of writing on virtue, civil law, natural law, and sovereignty, towards  a concern with individual diversity and the right for everyone to play some part in determining the laws that one is obliged to obey.

In this, he was maybe anticipated by Florentine humanist and republican thinking, but not by any great historical distance, and there is lack of readily obtained in print or online texts in English from that time in Florentine history, though I hope to return to this in a  future post.

The historical background to Marsilius’ thought includes the political life of medieval north Italian city states, little republics often known as communes. Conflict between the Papacy and German Emperors gave them the opportunity to maintain independence through playing off the great medieval political powers against each other.

Their independence, like that of the ancient Greek city states, ,involved a good deal of conflict with each other about boundaries and alliances, and internally with regard to governmental power. This of course was a violent process, but there was violence elsewhere with less productive results for liberty.

Some background on  the Papacy and the Empire is necessary here, as general background, and with regard to the life of Marsilius, who was very much part of the struggle between the two. The Roman Empire was revived, in name anyway, in 800 for Charlemagne, the ruler of what is now France, Germany, Austria and neighbouring territories, including northern Italy.

Charlemagne was crowned by the Pope in Rome in a move the emphasised separation from the continuing eastern Empire in Constantinople and a strong ally for the power of a Roman centred Catholic church in the west. By the time of Marsilius, the title of Emperor had disappeared, revised, and evolved in its meaning.

The stage reached was the Emperor was elected by major German princes and was known as the Emperor of Germany, though also as Holy Roman Emperor, or Emperor of the Romans, in recognition of his preeminence in Catholic Europe, and apparent role of providing secular partnership to the divinely ordained role of the Papacy.

The Emperor’s power over most of Germany, outside the hereditary lands of the prince elected, was very limited, so that Germany was essentially a patchwork of a very large number of very varied kinds of sovereign entity (city republics, bishoprics, monasteries, domains of a margrave, duke, knight, etc) under a grand  but weak monarch, who had some claim to universal monarchy within the Catholic world but only at the level of symbolism .

The Emperors had continuing claims in northern Italy, which brought them into conflict with the political ambitions of Popes to dominate the region, and generally the supposed partnership of throne and alter led to violent conflict about how to share the power.

It was also a time of growing commercial life in Europe, with northern Italy as part of the vanguard. The erosion of traditional forms of authority and loyalty which accompanied increasing commerce, combined with an intensification of conflicts between Emperor and Pope, along with competing candidates to be Emperor or Pope.

Marsilius was in the middle of this, born in northern Italy, in the city of Padua as his name indicates. He trained as a doctor, after a period as an Imperial solider and became Rector of the University of Paris, then engaging in work on theology and politics which led to conflict with the Papacy. He was sheltered by the German Emperor at his base in Munich.

The major result of this was the large book, The Defender of the Peace, often known by its Latin title of Defensor Pacis. It contains three discourses, the first of which is less than half the book, but contains his thought on the nature of politics, civil law, and the state. This might be seen as a defence of the role of the Emperor as defender of the peace, who the right to autonomy from the Pope with regard to worldly matters.

However, there is much about the First Discourse, which challenges the role of princes. That Marsilius was able to do so while relying on the Emperor for protection from accusations of heresy, is suggestive of the value of the papacy-empire and church-state splits in medieval Europe along with competition between states and the contestation of Church doctrine by ‘heretical’ groups, in fostering liberty in a Europe, which lacked any absolute overarching political or religious power centre.

As is normal with medieval philosophy, Marsilius writes with regard to the text of the Bible and even more with regard to the writings of Aristotle, which in this case means mostly the Politics and the politically oriented parts of the Nicomachean Ethics. As normal, there is also reference to the Commentator, that is Ibn Rushd, known in Latin as Averroes (1126-1198), a Muslim philosopher who like Seneca was born in Cordoba, Spain. His commentaries on Aristotle transformed Medieval philosophy, Christian and Jewish, as well as Muslim.

Marsilius builds up his political ideas taking Aristotle as the major philosophical source, which raises questions about the correctness of his view of Aristotle. I won’t go into that issue any further and will just note that since Marsilius, one way of taking Aristotle has been as a proponent of republicanism with a democratic emphasis. The ‘republican’ thinking is not about abolishing monarchs, and strictly speaking republican political thought has always been about how to share power between all citizens, or some significant part of the citizen body, rather than the abolition of all monarchical titles. This is why Marsilius can be both a republican and support the power of the Emperor, at least in relation to the Pope.

The argument is built up through reading of Aristotle, which emphasises the merits of elective monarchy, so turning the monarch into an elected for life president. If that life time tenure rests on the will of citizens, then at least some possibility is raised on ending that tenure early should the monarch prove unsatisfactory.

Of course the German Emperor was elected by a few princes, but Marsilius is very clear that he is referring to a broader electorate of all citizens. He contests readings of Aristotle, according to which Aristotle only allows for the election of a king by a small aristocracy of those citizens supposed to be very best. Marsilius both denies this is what Aristotle supports and makes his own arguments for saying that the wisdom of all citizens collectively is greater than that of a few privileged citizens taken to be particularly wise.

The wisdom of a few, however intellectually accomplished, cannot match the wisdom of all citizens as that collective wisdom contains all the knowledge there is of the society concerned. Social knowledge comes from the many thousands and even millions of individual perspectives on experienced reality, not the distanced theoretical wisdom of a few. Therefore the wisdom to elected the best candidate as monarch must come from all citizens, and they must all have the right to participate in the vote.

A decision resting on such a multitude also creates a strength and endurance in the state, with regard to external enemies, but more importantly with reference to the capacity of the state to sustain itself and allow a ‘sufficient’ life for citizens. That is a sufficient life of fully developed human faculties, not just pure physical survival which might take place without laws, but only in conditions of insecurity and with little hope of a ‘sufficient’ life.

The laws which allow sufficient life are more a matter of codifying the wisdom and experience of history, in forms which are acceptable to all citizens, than the kind of innovations in state power we have come to associated with new law in more recent times. The citizen body which participates in electing the head of the government must also participate in making laws since the same arguments invoked for electing a leader must apply to the laws. Laws, which Marsilius understands as what has the  consent of all, or close enough, rather than the imposition of the views of a narrow temporary majority on everyone.

He does not make explicit barriers to majoritarian abuse of power, but does not need to since law clearly means to him what is acceptable to the community as a whole with regard to its collective wisdom and the historical experience of laws. The ‘monarch’ or ‘prince’ is clearly expected to apply those laws and to exercise no further powers beyond what defends the existence of the community from lawlessness and external aggression.

Marsilius emphasises the viability and sustainability of the community as a community of sufficient life rather than as a deduction of law making sovereignty from individual rights. His approach, grounded in antique political and legal thought, might sound less respectful of individual liberty than the deduction from individual rights, but the modern tradition of such deductions, these days forming the major part of ‘normative’ political theory/analytic political philosophy, have not proved at all immune to statist ideas, while individual rights to pursue ‘sufficiency’ are so deeply embedded in Marsilius’ assumptions as what is natural to an individual and to a sustainable community, that it does not need articulation in the form of pure abstract rights detached from the necessary conditions of lived communities.

How democratic Marsilius is, by our standards, can be debated on at least two counts. One count is that at this time, and right into the nineteenth century, ‘democratic’ politics might might still exclude ‘dependent’ individuals from political rights, that is those who were thought to be lacking in the economic independence and self-dependence, which would supposedly allow for free and considered judgement.

Those excluded included those making a living from employment by someone else rather than through property, self-employment as a skilled worker, or membership of some legally recognised corporation of individuals with equal rights (like a university or a trade guild). Farm labourers, employees of urban enterprises,  vagrants, and domestic servants were likely to be excluded along with women, religious minorities, and those still  carrying the vestiges of medieval serfdom in their legal status.

The second count is that Marsilius offers little indication of how his democratic ideas could be applied in practice, though he was presumably relying on memories of Italian communed, still leaving a huge gap on how to apply such principles to a political community as large as the German Empire, leaving the suspicion that he was mainly arguing for the power of the Emperor on the basis of pretended democracy, and a supposed rule by laws rather by any individual.

There is nevertheless more than enough in Defensor Pacis overall to stimulate considerable creative thinking about what it is to create the laws and government best suited to liberty. His criticisms of the supposed wisdom of  few at the top, are very powerful and necessary now with regard to the pretences of state planning and regulation. His understanding of how wisdom arises from the multiple experiences of the multitude, with regard to the limited   goals of government and legislation, have great application to the role of markets and voluntary co-operation in a society of free individuals.