Institutions, Machines, and Complex Orders (Part 7): The open texture of the words of the law

However, the law itself has its own endogenous system of production of rules, which operates on the abstract plane of the configuration of the structure of the relationships between its terms, and whose dynamics depends on the negative feedback process implied by the judicial work itself to clarify the words of the law for each specific case to be decided. Both in codified law systems and in customary law systems, the current positive law is clearly defined. The legal systems in which previous judgments oblige judges are even more rigid than codified systems, since in the latter it is enough for the legislature to enact a new code for the positive law to change. On the contrary, the judges must make a hermeneutical effort to modify the doctrine consecrated in a judicial precedent without this constituting an arbitrary ruling.

However, both in coded and customary legal systems, the law, which is always enunciated in express statements, carries with it the phenomenon of the open texture of language. These are not the cases of ambiguity, vagueness, or obscurity of the letter of the law. These latter cases can be solved by the doctrine, composed of scientific works that investigate the debates between the members of the legislative power at the moment of sanctioning the norm whose text carries such problems, or resorting to the normative antecedents of which the current law took its vocabulary.

However, vagueness, obscurity, and ambiguity in the words of the law configure linguistic problems with legal relevance, but not legal ones in themselves. What really matters to study are the cases of open texture of the language of the law, since it is through these cases that the law evolves.

In cases of open texture of language, the anomaly occurs in the universe of events to which the language refers. An obvious example: a constitution written in the 19th century can establish that the President is the Commander-in-Chief of land and sea forces. It would not be necessary to reform its text to incorporate the air force – or even weapons built to act outside Earth’s orbit.

However, the dynamics of legal traffic are mostly made up of less obvious cases in which the open texture of language forces judges to establish the words of the law for the specific case, resorting to a hermeneutic interpretation of the law for which “common sense” is not enough. In customary law these hard cases are those that generate a new precedent that often define what is inside and what is outside the “good legal sense.” The authors disagree among themselves on how to characterize this aspect of judicial work. However, the remarkable thing is that these “difficult cases” generated by the phenomenon of the open texture of the language are what make the law respond autonomously to changes in the conditions of the environment that the same right has as a regular task.

Indeed, Friedrich Hayek states in Law, Legislation and Liberty an attempt to separate law and politics based on the evolution of law according to a process of natural selection of norms. While it expressly recognizes that a legal system can be sanctioned in its entirety by the legislator, it also highlights the ability of legal systems to make an immanent critique of themselves, through the judicial system.

Although Hayek does not analyse the phenomenon of the open texture of language in his work, it does characterize law as a structure of norms that continually readjust to changes in circumstances following a negative feedback process, through successive judicial decisions. In Hayek’s own words, what establishes a legal order is a set of expectations about the behaviour of congeners that will be considered or not according to law. For example, if a party fails to meet its contractual obligations, it can expect the other party to refuse to comply with them and that, if sued, the latter will be supported by the courts. This expectation also works as an incentive to fulfil contracts and reduce litigation.

On the other hand, another feature of legal systems -particularly modern ones- that Hayek highlights is the definition of a range of expectations that will be systematically thwarted. This is what determines a structure for human action and implies the consecration of the principle of closure: everything that is not expressly prohibited is allowed. This allows individuals to form their life plans with the expectation that they will be fulfilled and with the ability to anticipate the behaviour of their peers, since they will be under the same incentive structure. The latter leads to a third characteristic of modern legal systems, which allows them to function as self-regulated systems: the principle of isonomy or of the same law for all. The incentive structure determined by the range of expectations that will be systematically frustrated, in a system that results from the same application for each individual, allows the definition of individual spheres of autonomy, within which each individual has free discretion, but when entering into collision with each other, each one will be able to infer what expectations they can have regarding a possible judicial ruling.

The reverse of this system is the “Administrative State,” by Carl Schmitt, in which only that which is expressly authorized by a decision based on expediency, and the status system of the Ancient Regime, is permitted, that each group had a private legal system or privilege-strictly speaking, our current modern system of rights consists in the extension to all human beings of the liberties or privileges that the nobles had wrested from the kings at the time. Therefore, it is a great risk that the number of regulations is such that the rule becomes that only what is specially expressly regulated can be done, depending on the dynamics of the change of the decision of the authority taken in administrative files, and that such is the segmentation of regulations according to pressure groups and interest groups, that they return to a system of privileges instead of equality before the law.

It is not difficult to find numerous current examples: the public transport system could reach levels of regulation such that it could practically be said that only such activity can be carried out with the express authorization of the public authority to that effect. The alternative is not the absence of regulation, on the contrary, the alternative is the modern State of Law: a set of positive norms, dictated by the competent authority and formulated in general terms. These rules that regulate public transport do not have an abstract content, but rather a concrete one: the set of objectives expressly set by public policy. While the rules of private law have an abstract content, that is, they lack a specific purpose, the rules of public law not only have a specific and specific purpose, but that such purpose must be expressly declared, in such a way that justice they can evaluate whether the willing means disposed by the public authority are related and proportional to the purpose of the rule of public law and, in turn, the citizens consider whether such ends are worth pursuing.

To continue with the exemplification of public transport of passengers and merchandise: there is a sphere that corresponds exclusively to private law. This refers to the rules that attribute legal responsibility between the transporter and the transported: the obligation of the transported to pay the ticket or the freight, the obligation of the transporter to transfer the people and goods without them suffering damages. In this sphere there is no concrete purpose of the norm. It only limits itself to stating the set of expectations that the parties can count on, regardless of who they are specifically and what the specific purpose of the transport is.

Correlatively, the regulation of public transport, which belongs to the orbit of public law, does have certain specific purposes. For example, take care of public safety and ensure an efficient distribution of the cost of accidents. For this purpose, it may provide that public transport companies register, periodically review the status of their units, which must meet certain minimum standards, and establish the obligation to contract civil liability insurance. Anyone who complies with these provisions, for example, could devote himself to the activity of public transport, passengers or merchandise. How many and who will be the transporters is something that the public transport regime should not compete with. The number of carriers will be fixed by the price system. Nevertheless, to the control of public transport must concern that the units that circulate are in good condition, that their drivers are suitable and have an insurance that covers their civil liability, so that the transported does not have to face the cost of accidents before an eventual bankruptcy of the carrier. On the other hand, the system of private law, in a parallel and autonomous way, distributes the responsibilities between the parties, without addressing who is each one.

[Editor’s note: Part 6 can be found here, and the full essay is here.]

Learning Academic English Through Leftist Propaganda

Yesterday, in a large bookstore Apollo (part of the major shopping mall) in Tartu, Estonia, in a section “English books,” I stumbled upon a bunch of leftist literature.  It is offered as the mainstream political and social issues books to those Estonians who learn English and those English-speaking people who live in the country. Among this literature is virulently biased Fear: Trump in the White House by Bob Woodward (Trump as a “Russian asset,” “fascist,” and so on), then a diary of the leftist sociologist Zygmunt Bauman (progressive profs usually force their sociology students to love this “classic”), and a primer of the identitarian left Racism: A Critical Analysis by Mike Cole. The “crown jewel” of the shelf was Crowds and Party by Jodi Dean, a rising star of current aggressive college leftism. In this book, she seeks to exonerate communism and class warfare, and to rekindle the Leninist concept of the vanguard communist party as the alternative to “evil” “neoliberal” capitalism. Of course, one could not see any conservative or libertarian literature on those Apollo bookshelves to serve as an alternative. 

To me, this choice of social and political issues literature, which I frequently observe during my travels at airports, shopping malls, and major bookstores around the world, serves as an inspiration to fight on to change this “mainstream.” I also hope that the young YouTube generation does not pay attention to this paper garbage. What worries me is that some well-rounded Estonians who might purchase this propaganda in hope to learn non-fiction and academic English might internalize the leftist jargon and receive distorted picture about what is going on in US. 

Watson my mind today

Apart from grading, reviewing, and my soon-to-be 5-yr-old’s birthday, that is…

–  A good question from Don Boudreaux. “Assuming (contrary to fact) that American trade deficits do necessarily cause Americans’ indebtedness to foreigners to rise, why do you bemoan these deficits? Why not instead cheer them? … Being indebted to foreigners means that we Americans must repay these debts, which in turn means that we Americans must in the future work to produce more goods and services for export. Isn’t this situation precisely what you and other protectionists want? Isn’t a rise in the demand for American exports – especially a rise not derived from, or offset by, a simultaneous rise in American imports – your very ideal?”

–  Speaking of protectionism, Tyler Cowen on Elizabeth Warren’s agriculture proposal: “a disappointment on two fronts: too wonky to be considered a purely political document, but not nearly wonky enough to be defensible in terms of substance.” It fails to understand inflation and food price data, calls for more protectionism, and doesn’t remove subsidies. He says he might be persuadable on a “right to repair” law, but worries about copyright infringement.

–  One of the issues Ludwig von Mises himself, I am told, never fully settled in his mind was over patents and copyright. It seems a necessary evil to encourage innovation, but granting someone a government-sanctioned monopoly just grates the wrong way. Now we’ve got “patent trolls” to add to the mix, who do not innovate themselves but buy up patents to collect licenses and sue or threaten to sue others. A paper finds that patent trolls encourage more upstream innovation while discouraging downstream innovation.

–  Why does Scott Sumner simultaneously support the Federal Reserve’s interest rate hike last year and expect a cut this year? As a market monetarist, he would like the market to dictate Fed policy and “the fed funds futures market forecasts a rate cut. … Because markets continue to forecast slightly below 2% inflation, even as the economy slows, the market forecast of an interest rate cut should be taken as evidence that a rate cut is probably needed at some point this year.” I also enjoyed the picture that goes with the article – he is an owl, neither a hawk nor a dove.

–  There’s a dictionary, detailing how Africans speak about politics, including some fascinating idioms. “Three-piece suit voting” refers to supporting the same party for all elected positions. On the contrary, “skirt-and-blouse voting” means to vote for different parties for presidential and legislative elections.” Other enjoyable examples at the link.

–  538 has an interesting piece on the perceived fairness of kidney donation systems, and the real struggle that still exists trying to get people to accept slightly less-regulated systems (let alone actually compensating donors’ families).

–  David Henderson: Occupational Licensing is a Bad Idea. Still. Really.

Nazism: left or right? (again)

A few days ago, Brazil’s Foreign Affair’s Minister declared that Nazism “derives from the left”. Asked about his minister’s remark, president Jair Bolsonaro confirmed that he understands Nazism as a left-wing movement.

The understanding that Nazism is a left-wing movement is growing among Brazilian conservatives, especially those who support Bolsonaro’s government. On the other side of the debate, Bolsonaro’s adversaries ridiculed his remark or manifested concern with his “historical revisionism”.

Seems to me that classifying Nazim as a left-wing movement is not a Brazilian exclusivity. Political commentators from other countries (such as Dinesh D’Souza) are saying the same thing. It is probably more accurate to say that Brazilians are following a trend.

This trend, however, is not new. One of Friedrich Hayek’s main points in Road to Serfdom was to tell social democrats (who were indeed democrats in the classical liberal sense of the word) that they were closer to Nazis than they would like to admit. Hayek’s remark was as polemic then as it is now, but mainly because he is saying the truth: as Milton Friedman said, “The society that puts equality before freedom will end up with neither. The society that puts freedom before equality will end up with a great measure of both.” If I remember correctly, it was also Friedman who said that in order to obtain perfect equality more government would be necessary, which would completely undermine the desire for equality, for those in government would most certainly not be equal to everyone else.

The standard in Political Science is, of course, to call Nazim a right-wing movement. However, we see in moments like this how political and how little scientific Political Science can be. What many people observe is that Nazism shares a lot with communism: both are violent, both emphasize the collective (and not the individual), both rely on popular leaders, and so on. Of course, there are also differences: Nazism has nothing of the class-struggle so central to communism and certainly doesn’t appeal to the cosmopolitanism present in “workers of the World, unite!”.

With all that said, I have a growing feeling that there are only two political tendencies: “live and let live” and all others. Some people can’t stand the possibility of having others living a different lifestyle from them. Some people can’t stand people who disagree. Some people like to blame others. Some people truly believe that those who think and do like they do are superior to everyone else. These people come together and ask the government to force everyone else to comply.

Proposal: Let’s stop calling them “Property Rights”

I think an alternative that is both clearer and more general is “Decision Rights”. When I teach Coase Theorem I use both terms, and (I think) students have an easier time grasping it when they realize that property rights are really just rights to make certain decisions. I can’t see a good reason to keep using the term property rights except that by historical accident it’s become entrenched jargon.

Property sounds like “stuff” to most people. And property rights sounds like “owning stuff”. This raises two points that need clarifying:

1. There is more to the world than just the physical, and there is more to property than just stuff.

I would argue that economic rights are human rights. (I would also argue that corporations are owned and staffed by humans but are not humans themselves.) And I would say that right to self-ownership is a particular type of economic/human right.

When we talk about environmental issues, the root problem is usually over some shared resource (e.g. we can’t neatly privatize the atmosphere and let now-private conflicts be resolved in court). It’s much easier to focus in on the relevant particulars when our language directs us to what’s really at stake (e.g. whether I can decide to put more than X amount of pollution into the atmosphere without legal consequences).

2. I own a bit of land and I can make many decisions about how to use it. But I can’t set up a nuclear reactor or burn a massive pile of debris. My ownership is not carte blanche, but a bundle of different rights. I have the right to use (for normal domestic purposes), to exclude, to sell, etc. By “I own” what I really mean is “I can make a particular set of decisions.

I hope my hard core libertarian friends will agree with me that the decisions I can make are not limited by what is explicitly legislated. I suspect my interventionist friends will disagree. But I also think interventionists can agree that it’s more reasonable for me to have a set of decision rights (how ever nebulous the extent of that set is) than some more magical sounding dominion/ownership over a particular fifth of an acre.

The notion of decision rights makes it clearer what political debates are over. If we want to pass a law saying you can’t put a pool in your yard because of spotted owls, “property rights” muddies the discussion. The law would take away a particular property right–which is to say, the right to make a particular decision. But the debate is going to devolve into “you’re taking our land” vs. “no we aren’t.” It’s close to the real issue, but not close enough.

tl;dr: When we talk about “property rights” or ownership what we really mean is a set of various decisions that one has a right to make. Those decisions might be over the use of what we traditionally call property (e.g. my yard), but it might also be over shared resources (e.g. the atmosphere), decisions with collective impacts (e.g. ecosystem management–or lack thereof), or socially constructed issues (e.g. intellectual property). The term “property rights” is not clear or obvious (particularly for people who aren’t already likely to read this blog). A better term would be “decision rights.”

SOTU: a Masterwork of Co-option.

Sheila Broflovski ‘solves’ the ‘problem’ of ‘obscenity’.

A professor of Political Science at my school described the modern left-right paradigm for the class today — to paraphrase, he summed up the political landscape of the US with the all-too familiar perspective: ‘conservatives want less government, and liberals want more government’.

I opined, silently, in my seat.  Sensing my disapproval, the professor asked if anyone had a differing perspective on the country’s political spectrum.  I raised my hand and pointed out the perspective of this oft-regurgitated axiom of political theory.  rephrased the point: Conservatives want liberty, and Liberals want safety.  When it was suggested by a classmate that I was coloring the axiom to suit my political bent, I defended my choice of language.  This phrasing, I argued, is the happy middle ground between the original, popular formulation that the professor used, and a statement that more closely aligns with my actual opinion: Conservatives want freedom, and Liberals want slavery.

When placed together, these three phrasings of the same observation illustrate the powerful effect nomenclature can have on a statement — and sheds a pinhole of light onto the vastness of the power of language analysis with respect to ideology:

Conservatives want less government, and Liberals want more government.

Conservatives want liberty, and Liberals want safety.

Conservatives want you to be free, and Liberals want you to be a slave. 

The words we chose to use when we frame our thoughts betray our underlying perspective.  Language is the seat of understanding, and can be deconstructed to suggest motivation and perspective.  Analyzing the language used by self-styled ‘progressive liberals’  (forgive the quotes — the term itself is completely removed from cogency as a representation of meaning, as is ‘conservative’.  These two terms as used in modern US politics do not come anywhere near connoting accurate definitions) yields a lexicon that I dub the language of Co-option.  This liberal dictionary is used by a vast majority of the public out of rote; most people do not consider deeply the meaning of the language they use.  Those that speak this dialect knowingly craft the language, and therefore, the thinking, of the larger public who adopts the dialect and spreads the meme and built-in collectivist programming therein.

This Language of Co-option is the language of our classrooms.  It is the language of our politicians.  It is Hegel.  It is Sociology.

Let’s vivisect the following liberal sociological speech pattern:

is bad for society.  We should do so that happens instead.”

To make the point that much clearer, let’s translate the above formulation into political rhetoric:

“For American families, x is a real problem, so our administration is committed to policy so that z will result.”

To define our terms:  the value in this construction represents a ‘problem’ — to be specific, some suggested verifiable disadvantageous phenomena, that would be mitigated by taking action.  These instances exist; we can plug in some terms for our variables to create cogent statements:  Suffocating is problematic for humans, therefore humans should breathe.  This construction is cogent because human beings need to breathe in order to avoid suffocation, which is indeed, harmful to humans.  However, such statements rarely provide people with new insights, because cause and effect tend to be plainly apparent; most everyone knows that they need to breathe to live.  It seems tedious to think such obvious statements would warrant comment, let alone, say, a State of the Union address.

The power of this statement only manifests when coupled with action — the y variable.  The point of x, of stating an obvious ‘problem’, is merely to gain the agreement of the audience to the that will follow.  In fact, in political speech, and need not have any real connection at all.  This effect has been pointed out by others, including the research of behaviorist Ellen Langer, who’s research suggests merely by adding any explanation to a request one can improve the chance of a ‘yes’ in response.

For example, take this phrase from the State of the Union Address last night:

“There are other steps we can take to help families make ends meet, and few are more effective at reducing inequality and helping families pull themselves up through hard work than the Earned Income Tax Credit.”

to simplify:  “Poverty (x) is a problem for people, and we can fix inequality (z) with the EITC (y).”

Let’s break it down critically.  Poverty is always a problem for a family, as it is averse to survival.  If you don’t eat, you starve — as obvious as the sun shining in the sky.  This statement alone is almost as bereft of importance as ‘nice day, huh?’ or ‘how about those (insert local sports team name)!’ The President must have had a reason to make the comment.  The statement made in this way implies poverty is a fixable problem in society, rather than a product of the human condition or the laws of our natural world.  The first law of the human condition is scarcity; there is never enough of any resource to satisfy demand in any economy.  When coupled with the Second Law of Thermodynamics, any natural system in the universe behaves the same way.  POTUS makes the statement about poverty implying a collective problem that can be solved by some action.

The showstopper for libertarians is usually y.  The solution to the problem offered by the state is ALWAYS aggressive force.  In the above example, that aggression is in the form of extortion — specifically, theft of property through threat of violent action via taxation.  This is stated in a positive light as phrased; the Earned Income Tax Credit is sold to the public as a tax break for some people, but comes at the expense of everyone else.  The fact that your government is extorting less money from some than from others is aptly defined as ‘inequality’, but this obvious truth is distorted and reversed completely with Co-optive language to masquerade as benevolence, yielding the aberration cited.

This construct is the essence of the Hegelian ‘crisis, reaction, solution’, and is a hallmark of Co-optive speech and thought, and permeates our zeitgeist.  Freedom-minded individuals hear this language and know just how ubiquitous it is in society — keep it in mind the next time you hear someone spray about what ‘We’ must ‘do’.  Co-option is built in to the culture and mindset of authoritarianism, and in fact, the democratic process itself as naked tyranny of the supposed majority.

Please, feel free to post your co-optive, authoritarian quotes in response below!

Narrating the Decline from a Classroom Desk,

L.A.Repucci