Rule of Law: the case of open texture of language and complexity

This article by Matt McManus (@MattPolProff) recently published at Quillette made me remember H.L.A. Hart’s theory of law and the problems derived from the open texture of language, a concept borrowed by him from Friedrich Waismann, an Austrian Mathematician and philosopher of the Vienna Circle. Many authors would rather distinguish “open texture” from vagueness: being the latter a proper linguistic matter, the former is related to the dynamic of the experience. As Kyle Wallace summarized the problem: “certain expressions are open textured simply because there is always the possibility that in some new experience we may be uncertain whether or not the new expression is applicable.”

However, Brian Bix, in his “H.L.A. Hart and the ‘open texture’ of language,” argues that, despite the concept of “open texture” being a loan from Waismann’s philosophy, the use gave to the term by Hart is not derogatory at all. With respect to Hart’s point of view, the “open texture” of the law is rather an advantage, since it endows the judges with a discretionary power to adjust the text of the law to the changing experience.

Concerning individual liberty, the laudatory qualification of the open texture of the law made by Hart and Bix might be shared by the jurists of the Common Law tradition, but it hardly would be accepted by anyone from the Civil Law System. According to the former, every discretionary power enabled to the judges helps to prevent the political power from menacing individual liberties, while, following the latter, the written word of the law, passed by a legislative assembly according to constitutional proceedings, is the main guarantee of individual rights.

But the subject of the open texture of the language of the law acquires a new dimension when it is related to the coordination problem derived from the limits to knowledge in society. As it was distinguished by F. A. Hayek in the last chapter of Sensory Order, we could talk about two types of limits to knowledge: the relative and the absolute. The relative limit to knowledge depends upon the sharpness of our instruments used to gather information, whereas the absolute limit to knowledge is sealed by the increasing degrees of abstraction that constitute every classification system. Since every new experience demands the rearrangement of the current system of classification we use to order our perception of reality, the description of this feedback process requires a supplementary system of classification of a higher level of complexity. The progress of the subject of knowledge into higher levels of abstraction reaches an unconquerable limit when he is tasked with the full study of himself.

Thus, we could ascertain that the judiciary function would be enough to fulfill the problems that could arise from the open texture of law, since the judge pronounces the content of the law not in general terms, but in concrete definitions in order to solve a case. In this labour, the judge not only applies the positive law, but he might “discover” abstract principles that become relevant in order to the given new experiences that begot the controversy over the content of the law he is due to solve. This function of “immanent critique” of the positive law by the judiciary system is well discussed by F. A. Hayek in the fifth chapter of his Law, Legislation and Liberty. Since the judiciary function solves in every concrete case the coordination problem derived from the fragmentation of knowledge in society, the open texture of the law does not make it opaque to the citizens.

That notwithstanding, the open texture of the law remains as a systemic limit to the legislative assemblies to define the whole content of the law. Thus, since the whole content of the law can only be achieved in a given concrete case by a judge solving a particular controversy, every central planner would have to accomplish his model of society not through decisions based on principles, but on expediency. Central planning and rule of law will be always set to collide. In this sense, the concept of open texture of the law might work as a powerful argument for the impossibility of every central planning to be performed, sooner or later, under the rule of law.

A Millennial’s New Perspective on Home Ownership

The last few years I’ve loudly protested that home ownership is overrated; it’s a bad investment plus lots of responsibility. And yet, this summer my fiance and I bought a 100 year old house on the south shore of Long Island.

Yes, I have lost my mind.

I basically stand by my earlier position, but with greater nuance. Owning a home is a complicated undertaking. But it’s given me a greater appreciation for the nuance involved in managing real estate.

Home ownership is a great big Gordian knot of inter-dependencies. It’s massive set of knowledge problems wrapped in externality problems.There’s a massive role for local knowledge which means policy makers’ attention should be less focused on things like home ownership rates, and more on guiding the right people into the right places to take advantage of that local knowledge.

With local knowledge comes local politics. I don’t know anything about local politics, but expect more posts about what’s going on in my town hall over the next few decades.

So what have I learned in this first month of home ownership?

  • There’s something to be said about pride in ownership

It’s still a real trip to turn on my lights in my kitchen so I can do my laundry in my laundry machines. I didn’t think I’d enjoy it this much. The endowment effect is real. One effect has been to increase my interest in contributing to local public goods via civic engagement and other routes.

I haven’t been to a town hall meeting yet, but I plan on going to one tomorrow. I suspect it will be awful. But I’m walking distance, so I’ll be a little bit drunk.

  • The real estate market has some serious frictions

This might be obvious, but it’s interesting. There are artificial and natural obstacles to the efficient use of real estate. Transaction costs are significant and property rights issues are hairy.

Buying a house is a complicated transaction and going through the process has really made clear to me how difficult it is to commodify land. Each piece of land has a unique location and history. Information asymmetries are substantial. The neighborhood you’re buying into is utterly out of your control. Put simply: Amazon won’t be selling real estate any time soon.

Part of the reason I’m happy with buying a house is that our rent had been increasing about $100/month/year. Land lords absolutely take advantage of real estate frictions to charge as much as they can. The alternative (which I chose) is to lock-in to a specific property.

  • The required knowledge to operate a home is significant and difficult to evaluate.

It takes a lot of knowledge to manage a house. If I were to take a wild guess (at this non-quantifiable variable), I’d say that between 5% and 50% of a homeowner’s brain is necessary to operate a house. Even if you bring in experts to do everything, evaluating those experts is a lot of work.

There are repairs and upgrades to make, and my formal education prepared me for exactly none of those projects. On the other hand, I’ve got the Internet. Without YouTube and Reddit I’d be a half dozen unlucky mistakes away from homelessness.

On the other other hand, I’ve learned a ton of stuff I’ve got no use for. Like how to grow asparagus (which it turns out it isn’t worth doing except out of boredom).

You can’t evaluate knowledge until it’s too late. And there’s more to learn than you ever will, so you have to make mistakes. It’s true of home ownership and it’s true of life more generally.

  • Gardening is a real trip.

In History of Economic Thought professor Gonzalez shared a story about two economists meeting in Switzerland during WWII. On showing his vegetable garden to the visiting economist, the visitor said “that’s not a very efficient way to grow food,” to which the gardener said, “yes, but it’s a very efficient way to grow utility.”

I’ve wanted to garden for some time, but the market for gardens is thin. So now I’m starting with almost no useful experience. My public stance has been that lawns are boring and dumb. But figuring out how to manage a little ecosystem ain’t easy. I now get why someone would just put in a lawn and be done with it.

At my old apartment complex the entire ecosystem was made of: humans, trees, lawns, cockroaches. I suspect the cockroaches did so well because all their competition was poisoned away. As an emergent order guy, I’m not really into that. But I get it now. In the same way the king wants everyone living in neat little taxable rows my life would be easier if I could just slash and burn all the complexity out of my yard.

Tl;dr: My biggest surprise as a new home owner is just how big a cognitive load owning a house is. You hear homeowners talk about how much work it can be, but I think it’s rare to hear someone talk about how much know-how is required.

Given the capacity to generate externalities, I’m a bit surprised that there isn’t more public policy devoted to issues of home ownership* (beyond subsidizing finance and increasing barriers to entry). I supposed I’ll learn a lot more about these issues as I learn about local politics.

*That isn’t to say I think it’s a good idea to get the government involved in trying to tell people how to go about the business of daily life. I think homeowners are (basically) doing fine left to their own devices.

Nightcap

  1. Artificial Intelligence: How the Enlightenment ends Henry Kissinger, the Atlantic
  2. What if we have already been ruled by an Intelligent Machine – and we are better off being so? Federico Sosa Valle, NOL
  3. We are in a very, very grave period for the world Henry Kissinger (interview), Financial Times
  4. What should universities do? Rick Weber, NOL

Could free speech have led to overseas empires?

Tridivesh’s recent post on China’s multilateral struggles got me thinking about the difference between the United States and China when it comes to coalition-building and international affairs more broadly.

I don’t think the Chinese are purposely attempting to smaller countries in debt so that Beijing may have a shorter leash for them. I think Beijing simply doesn’t know what it’s doing, and is proceeding apace with multilateral initiatives like the BRI through a trial-and-error process. Unfortunately, trial-and-error processes only work if there is a mechanism to identify the error that takes place during the trial. In the West, we call this mechanism “free speech.” In China, free speech ruins order and is thus discouraged at best and disposed of at worst.

China’s expansionist efforts will probably, as a result of the lack of free speech, end poorly for the regime. Beijing’s reputation will suffer, and it will have to resort to more coercive tactics to secure its alliances and influence over its smaller neighbors.

This thought process, in turn, got me thinking about how the West came to churn out so many powerful worldwide empires in such a short span of time, and how these empires managed to coexist with each other at various points in time. Given China’s troubles with establishing hegemony, the fact that the United Kingdom, the Netherlands, France, and the United States were able to achieve what they achieved is amazing. Throughout most of history, empires (or wanna-be empires) have sought to expand abroad while keeping order at home, just like China is doing today. In the sixteenth-century West, order at home was rejected in favor of liberty at home, and as a result the few societies that tried liberty ended up being able to afford overseas empires, where order was sought instead of liberty!

The short-sightedness of imperialists continues to astound me. If liberty at home leads to opportunities to establish colonies abroad, why on earth would you try to stamp out liberty in the colonies you’ve been able to establish thanks to liberty? Imagine if the people living in Indonesia, or India, or Algeria, or the Philippines, had all the liberty that Americans and western Europeans had. Alas…

Nightcap

  1. Tech platforms and the knowledge problem Frank Pasquale, American Affairs
  2. Exploring the New Science of Psychedelics Mick Brown, Literary Review
  3. A new history of Islamic mysticism Kamal Gasimov, Voices on Central Asia
  4. Within the triangle of politics, philosophy, and religion Aurelian Craiutu, Law & Liberty

Nightcap

  1. What is the cost of “tractable” economic models? Beatrice Cherrier, Undercover Historian
  2. Facts vs. hand-waving in economics Chris Dillow, Stumbling and Mumbling
  3. How factories changed the world Donald Sassoon, New Statesman
  4. Defending the Mughals became a way to defend colonial rule Blake Smith, the Wire