A Shackled Leviathan That Keeps Roaming and Growing (Regulation)
Do robots dream of paying taxes? (Bruegel)
The Janus of Debt (Project Syndicate)
A Shackled Leviathan That Keeps Roaming and Growing (Regulation)
Do robots dream of paying taxes? (Bruegel)
The Janus of Debt (Project Syndicate)
Another aspect of the discretionary law enforcement consists of its selective application to opponents and social groups that fulfill the function of “scapegoats.” The history of humanity, fundamentally of the 20th century, offers unfortunately plenty of examples of such types of practices: application of norms that apparently had fallen into disrepair on certain sectors of society, investigations and meticulous follow-ups of opponents and their families concerning compliance with regulations rarely required of the rest of the citizens, are news that are familiar to the inhabitants of countries with undemocratic governments.
On the other hand, countries in which compliance with the rules is relatively low, generally sanction and enact extremely severe laws, without greater social or political resistance, since, considering its low compliance, few grant it the seriousness that they truly have. However, bearing in mind that the primary and exclusive function of every government consists of enforcing legal norms, the lower the degree of application of them, the greater the degree of discretion that such government will have if it decides to raise the degree of regulatory compliance, either in general terms for the entire legal system, or for a certain set of rules and either for the entire population as a whole or for a selectively identified part of it.
Of course, the selective application of the rules, when it is practiced without distinguishing individuals or social groups, works as a “fine-tuned” mechanism that makes the legal system more efficient. What is sought here are those anomalies that imply an authentic dissolution of the Rule of Law and the outright persecution of individuals or social or ethnic groups. It goes without saying that a legal system with a very high degree of law enforcement gives governments a very restricted margin of maneuver, so it could also be said that the high regulatory application works as a safeguard aimed at guaranteeing equality before the law and to avoid the aforementioned persecutions.
Culturalist explanations vs. systemic ones
The opinion that adherence to the norm is a cultural characteristic that varies from people to people is widely extended, to the point of becoming commonplace. There would be countries or regions that have a higher level of compliance and respect for the law, while kilometers further east or south, the behavior of individuals would change drastically. Theories about climates, religions, the role of civic education, and so on attempt to explain why certain countries abide by the laws they give themselves while others use them as “fa trap for fools”
This writing tries to defend the opposite thesis: it is the level of application of the norms that determines the cultural characteristics of the peoples and not the other way around. Culture is an adaptive response to the institutional determinants in force in each country.
To illustrate this last assertion with a hypothetical example: In a country where regulations are 50% enforced -that is, the citizen interprets it as a coin that turns in the air- no one will want to be within the group of inhabitants whose decisions they are constrained by the rules, since that would place them at a strong disadvantage compared to their peers who do not receive equal limitations, even more so if they are their competitors. Furthermore, regulatory transgression – such as tax evasion, in a context in which competitors do not pay their taxes – can often mean commercial survival for the individual. If, for example, if the municipal authorities impose a series of charges on restaurants in terms of hygiene conditions, number of tables per square meter and labor regulations, but also does not control compliance with such provisions, the merchant who complies with them it will be at a severe disadvantage compared to its competitors, who will be in a position to offer better prices or reinvest the profits from the savings generated by the non-compliance with the regulations in a better quality of service in other aspects of the restaurant.
Of course, inspections by the control body represent a costly expense to finance and, therefore, governments deploy “exemplary actions.” That is, for our example, they inspect a small number of establishments, but enough so that all the rest of the non-inspected businesses still comply with the standard in the event of receiving a random inspection. In these cases, the selective law enforcement is highly efficient: since it achieves high compliance with the law at a relatively lower cost.
However, cases that are dysfunctional have other characteristics. The first of these is that the level of law enforcement by the public powers is really low. The second is that the penalties – imprisonment, fine or compensation – are extremely high, since their main function is to counterbalance the relatively low degree of regulatory application. The third is that the rulers have such a high margin of maneuver, attentive to the low habitual application of the norms, that their application has the same effects as a norm created at the time by the government for a special situation. In other words, in practice the Rule of Law has been dissolved.
This leads us to the distinction between a government that makes decisions based on rules and principles versus another that motivates its decisions on matters of opportunity, merit or convenience, that is, pure discretion. Of course, here we are also faced with two polar definitions, one and the other model of government are ideal types in the Weberian style. Every rule-based government needs to carry out its action with a certain level of discretion. At the same time, even a tyrant, who wields power despotically, needs a minimum of predictable structure, at least to maintain his own identity as a ruling subject. However, it is relevant to establish the distinction between government decisions based on norms and principles and those that are guided exclusively by reasons of opportunity, for the purpose of making a judgment on the level of individual freedom that predominates in a certain political regime.
[Note: this is a piece by Michalis Trepas, who you might recognize from the now-defunct NOL experiment “Be Our Guest.” Michalis is a newly-minted Notewriter, and this is the first of many more such pieces to come. -BC]
The Treasury and the Federal Reserve System have reached full accord with respect to debt-management and monetary policies to be pursued in furthering their common purpose to assure the successful financing of the Government’s requirements and, at the same time, to minimize monetization of the public debt.
– Joint announcement by the Secretary of the Treasury and the Chairman of the Board of Governors, and of the Federal Open Market Committee, of the Federal Reserve System, issued for release on Mar. 4, 1951
The Allied High Commission appreciates that these responsibilities [for the central bank] could not, without serious inconvenience, be given up so long as no legislation has been enacted establishing a competent Federal authority to assume them.
– Letter from the Allied High Commission to Chancellor Adenauer, Dated Mar. 6, 1951
A Financial Fable by Carl Barks, a short story starring Donald Duck and his duck-relatives, was published in Mar. 1951. It featured concepts like supply/ demand, money shocks, inflation and the ethics of productive labor, from a rather neoclassical perspective. Read today, it seems out of synch with the postwar paradigm of a subordinated monetary policy to the activist state and, more generally, with what came to be known as the Golden Age. As you have already probably noticed, this March also marks the 70th anniversary of two more instances against the currents of the time. It was back then that two main traditions of central bank independence – based on political consensus and judicial (“Chevron”) deference in the case of US, based on written law and judicial review in the case of Eurozone (read: Germany) – were (re)rooted. In the following lines, I offer an outline focused on institutional interplay, instead of then usual dramatis personae.
The first instance is the well-known Treasury – FED Accord. Its importance warrants a mention in nearly every institutional discussion of modern central bank independence. The FED implemented an interest rates peg – kind of capping the yield curve – in 1942, to accommodate public debt management during World War II. The details were complicated, but we can still think of it as a convenient arrangement for the Executive. The policy continued into the early 50s, with the inflationary backdrop of the Korean War leading to tensions between a demanding Executive and an increasingly resistant central bank. Shortly after the dispute became more pronounced, reaching the media, the two institutions achieved a compromise. The austere paragraph cited above ended the interest rates peg and prompted a shift of thinking within – and without – the central bank, on monetary policy and its independence of fiscal needs.
The second one is definitely more obscure, and as such deserves a little more detail. The Bank deutscher Länder (BdL) was established in 1948, in the Allied territory of occupied Germany. It integrated central banking institutions, old and new, in a decentralized fashion á la US FED. Its creation underpinned the – generally successful – double reform of that year (a currency conversion with a simultaneous abolition of price controls), which reignited free market forces (and also initiated the de facto separation of the country). The Allied Banking Commission (ABC) supervised the BdL and retained the sole right to issue direct instructions, a choice more practical than doctrinal or ideological. As the ABC gradually allowed a greater leeway to the central bank, while fending off even indirect German political interventions, the resulting institutional setting provided for a relatively independent BdL.
In late 1950, the Occupational Authority wanted out and an orderly transfer of powers required legislation from the Federal Government. Things deadlocked around the draft of the central bank law, the degrees of centralization and independence being the thorniest issues. The letter cited above, arriving after a few months of inertia, was the catalyst for action. The renewed negotiations concluded with the “Interim Law” of 10 Aug. 1951. The reformed BdL was made independent of instructions from the Federal Government, while at the same time assuming an obligation to support government’s general economic policy – without prejudice to its monetary duties.
This institutional arrangement was akin to what the BdL itself had pushed for, a de jure formalization of its already de facto status. Keep in mind that the central bank enjoyed a head start in terms of reputation and experience versus the Federal Government, after all. But it can also be traced to the position articulated by the free market-oriented majority in the German quasi-governmental bodies back in 1948, a unique blend of explicit independence from/ cooperation with the government. The 1951 law effectively set the blueprint for the final central bank law, the Bundesbank Act of 1957. The underlying liberal creed echoed in the written report of the Chairman of the Committee for Money and Credit of the parliament:
The security of the currency… is the highest precondition for the retention of a market economy, and hence in the final analysis that of a free constitution for society and the state… [T]he note-issuing bank must be independent of these [political bodies] and subject only to the law.
The Financial Fable was the only story featuring Disney’s characters that made it to an important history of comics book, published in 1971. Around that time, the postwar consensus on macroeconomic stabilization policy was reaching its peak. A rethinking was already underway on the tools and goals of monetary policy, taking it away from the still garbled understanding of the period. It took another decade or so for both sides of the Atlantic to recalibrate their respective monetary policies. The accompanying modern central bank independence, with its foundations set in 1951, became a more salient – and popular – aspect a bit later.
Cracks in the Ivory Tower, by Jason Brennan and Phillip Magness, brings a much needed discussion of the pathologies of US higher education to the table. Brennan and Magness are two well-known classical liberals with a strong record of thoughtful interaction with Public Choice political economy.
Public Choice is an application of mainstream economic concepts to political situations. One of the key points of Public Choice is that people are self-interested and rational. This drives the choices they make. But people also act within formal and informal institutional environments. This constrains and enables some of their choices to a large degree. In other words, people react to incentives.
The Public Choice approach is not so much a normative handbook, but rather an attempt to explain how politics operate. The application of this theory to understand higher education in the US is a welcome addition to a growing literature on the economics of higher education.
It is perhaps surprising how the subtitle of the book stresses an aspect that tends to be extraneous to Public Choice scholarship: “The Moral Mess of Higher Education”. Of course we all draw on moral reasoning and assumptions in order to pass judgment on economic and political phenomena, but normally the descriptive side is kept separate – at least by economists – from explicit value judgment.
John Staddon, from Duke University, has reviewed Brennan’s and Magness’ book. In his review, he focuses on three main key issues. First, colleges and universities act on distorted incentives created, for example, by college rankings, to recruit students in ways that are not necessarily related to maintaining or expanding the academic prestige of the institution.
Second, teaching in higher education, at least in the US, is poorly evaluated. Historically, it has shifted from student evaluation to administrative assessment.
So why the shift from student-run to administration-enforced? And why did faculty agree to give these mandated evaluations to their students? Faculty acquiescence — naiveté — is relatively easy to understand. Who can object to more information? Who can object to a new, formal system that is bound to be more accurate than any informal student-run one? And besides, for most faculty at elite schools, research, not teaching, is the driver. Faculty often just care less about teaching; some may even regard it as a chore.
The incentives for college administrations are much clearer. Informal, student-run evaluations are assumed to be unreliable, hence cannot be used to evaluate faculty for tenure and promotion. But once the process is formalized, mandatory, and supposedly valid, it becomes a useful disciplinary tool, a way for administrators to control faculty, especially junior and untenured faculty.
This is not necessarily conducive to improvement in the quality of teaching. Perhaps colleges fare better than universities here, given that their faculty is not expected to allocate a large amount of hours per week to research and writing.
Third, Brennan and Magness offer a critique of what is known in the US system as “general education” courses. In their view, it is clear that those courses are unhelpful in a world where academic disciplines are increasingly more specialized. However, offering those courses is a good excuse for universities to grab more money from the students.
This is where Staddon begs to differ:
Cracks in the Ivory Tower usefully emphasizes the economic costs and benefits of university practices. But absent from the book is any consideration of the intrinsic value of the academic endeavor. Remaining is a vacuum that is filled by two things: the university as a business; and the university as a social activist. Both are destructive of the proper purpose of a university.
I tend to agree with this point, and I do not think it is a minor point. We can do colleges and universities without football, without gigantic administrative bureaucracies, and without the gimmicks to game the college ranking system. I could even go further and argue that we should do colleges and universities without dorms and an artificial second and worse version of teenage years right when students are supposed and expected to behave like adults. Getting rid of those tangential features of US higher education should help refocus on knowledge and reduce the cost.
Colleges and universities in the US are also expensive and unnecessarily inflated because of the structure of the student loans system, which also generates perverse incentives. But this point has been explained and described to exhaustion in the economic literature. This also has to change.
However, I am not convinced that making universities focus on professionalizing their students would be the best way to go. Brennan and Magness raise some important issues and concerns, some of which also apply outside the US, but the Staddon highlights in his review an important counterpoint: higher education, at least on the undergraduate level, shouldn’t be seen 100% as an investment good, but also as a consumer good:
Higher education does not exist for economic reasons. It exists (in the famous words of Matthew Arnold) to transmit “the best that has been thought and said,” in other words the ‘high culture’ of our civilization. Job-related, practical training is not unimportant. Universities, and much else of society, could not exist without a functioning economy. But — and this point is increasingly ignored on the modern campus and by the authors of CIT — these things are not the purpose, the telos if you like, of a university.
Undergraduate education is there to hand over knowledge to the next generation. It can be small and cheap. You need an adequate building, a small library with the best classic books, electronic access to journals, and faculty that excels at teaching. Courses would be general, comprehensive, and interdisciplinary by definition. The program could last only three years. An optional additional year could be offered to those with an academic profile, where they could pursue more specialization as a bridge to graduate education.
This is more or less the mediaeval model. I am not sure we need to reinvent the wheel in order to deal with the crisis of higher education. What we need is to get back on track – back to the bread and butter of college education. This is a reflection that both sides of the story – those who demand education and those that offer it – need to make.
In a recent contribution to Notes on Liberty, Mary Lucia Darst has recently commented on the status of higher education during the 2020 pandemic and prospects for the future.
I also wrote about the college trap in the US a few years ago.
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.
Without noticing it, I heavily built my reading schedule this year around of what one might call a “post-liberal reading list”. The idea, that the demise of social institutions might be the inevitable consequence of an ongoing individualization of society struck me as initially convincing. I am currently in search of good examinations on the ultimate effect Liberalism has on the development of social institutions. Hopefully, Steven Horwitz’ “Hayek’s Modern Family” will provide me with some compelling arguments to refute the post-liberal agenda.
Not directly being post-liberal, but pointing towards the importance of “homecoming and belonging”, Sebastian Junger’s book “Tribe” has had a lasting influence on me. I found the following observations of a war refugee voluntary reentering Sarajevo during its siege both fascinating and devastating.
“What catastrophes seem to do – sometimes in the span of a few minutes – is to turn back the clock on ten thousand years of social evolution. […]
“‘I missed being that close to people. I missed being loved in that way’, she told me. ‘In Bosnia – as it is now – we don’t trust each other anymore; we became really bad people. We didn’t learn the lesson of the war, which is how important it is to share everything you have with humans being close to you. The best way to explain it is that the war makes you an animal. We were animals. It’s insane – but that’s the basic human instinct, to help another human being who is sitting or standing or lying close to you.’
I asked Ahmetašević if people had ultimately been happier during the war.
‘We were the happiest,’ Ahmetašević said. Then she added: “And we laughed more.'”
I wish you all a pleasant Sunday.
After a not so short break I took from blogging in which I submitted my Bachelor Thesis and took some much-needed vacations, I finally got my hands back on writing again. Before opening up something new, I first need to finish my Case for Constructivism in IR.
In my first post, I described how constructivism emerged as a school of thought and how the key concept of anarchy is portrayed. In this part, I want to discuss power and the differences between moderate constructivism, radical constructivism and poststructuralism.
The connection between moderate constructivism and radical constructivism is more of a flowing transition than a sharp distinction. Scholars have further developed the idea of social constructivism and expanded it beyond the realms of the international system. Not only the international system but also states, tribes and nations are socially constructed entities. Thus taking “states” as given entities (as moderate constructivist do) in the international system neglects how national identities are constructed. Why do nations act so differently although they are subjugated to the same international system? The implications of these findings have been the subject of many influential works, notably Francis Fukuyama’s latest book “Identity” or Samuel Huntington’s “Clash of Civilization”.
The most important component which radical constructivist brought into consideration was language. The linguistic turn induced by Ludwig Wittgenstein disrupted not only philosophy but all social sciences. For decades language has been portrayed as a neutral mean to communicate between the human species which evolved from spontaneous order. Wittgenstein dismantled this image and explained why we so often suffer from linguistic confusion. Friedrich Krachtowil further applied Wittgenstein’s findings to social sciences by dividing information into three categories: Observational (“brute”), mental and institutional facts. All these three dimensions need to be taken into account in order to understand a message. The institutional setting of spoken words directly builds a bridge between speaking and acting (speech act theory). If I say, let’s nuke North Korea, I might get a weird look on the streets, but nothing significant will happen. On the other hand, if the president of the USA says the same, the institutional setting has changed, and we might have a problem with the real-world implications of this statement. The social construction of the institutional setting is highlighted by paying special interest to language as a mean of human interaction. However, how far one can go with analyzing the results of a socially constructed language without losing the bigger picture out of sight remains a difficult task.
While the radical constructivists first established a connection between language and physical action, the poststructuralists sought to discover the immanent power structures within social constructs. Michel Foucault (one of the most prolific sociologists of the 20th century with some neoliberal influence) brought the discourse and moreover discursive action into perspective, whilst Derrida or Deleuze focused more on the deconstruction of written texts. Contrary to many poststructuralists, moderate constructivists avoid being constantly fooled by Maslow’s Hammer: While it is irrefutable that power relations play a vital role in analyzing social structures, an exceedingly rigid focus on them conceals other driving forces such as peaceful, non-hierarchical cooperation for example.
Moderate Constructivism puts special emphasis on the institutional setting in which certain behaviour is incentivized. This setting, however, is subject to permanent changes and perceived differently by every subjective actor in the international system. Thus, the driving problem of IR remains a coordination problem: Instead of simple state interest directed to maximize their share of the Balance of Power (as Hans Morgenthau, the father of modern IR theory, proclaimed), we must now coordinate different institutional settings in the international system resulting in a different understanding of key power resources. None of the traditional IR schools of thought hypothesizes that ontology may be subjective. Moderate constructivism manages to integrate a post-positivist research agenda without getting lost in the details of language games (like radical constructivist) or power analytics (like poststructuralists).
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.