legal history

Afternoon Tea: “Shareholder Activism at the Dutch East India Company 1622-1625”

Brandon Christensen History, Law, Links , , , , , ,

This paper explores the reason for the absence of control rights of shareholders in the Dutch East India Company (VOC) and the background of the conflict between shareholders and directors that arose in 1622/1623 when the VOC Charter of 1602 was extended.

The VOC was the result of a merger between several companies that had been trading in the East Indies between 1594 and 1602. The legal structure of most of these “pre-companies” which were incorporated for a single voyage to the East Indies, prevented shareholders from having actual influence. In most of these companies, the shareholders invested their money, not in the company itself, but via one of the individual directors. The relationship between a shareholder and most of the precompanies was therefore indirect, which impeded the exercise of control rights. Furthermore, shareholders may not really have been interested in their control rights given the high returns and the expectations of the newly opened trade route.

When these pre-companies were merged into the VOC in 1602, nothing changed with respect to the absence of shareholder control rights. The VOC, however, was established for a longer period and had to meet other more long-term challenges than those faced by the pre- companies. The failure to adapt the control structure to suit the different circumstances may have been a source of the conflicts that arose between the directors and shareholders between 1602 and 1623.

In 1622, upon extension of the 1602 Charter, a significant conflict erupted between the shareholders and directors. The so called dissenting participants complained about the numerous conflicts of interests that had been arising between the various directors and the VOC. They accused the directors of abuse of power, short-selling and self-enrichment. They argued that shareholder approval was required for the VOC to turn to the capital market to borrow funds. They also demanded that large investors be entitled to vote on the appointment of new directors. As the dissenting participants supported their arguments by referring to the English East India Company, the corporate governance of the EIC is briefly described.

Publishing their complaints in pamphlets, the shareholders mobilized public opinion and attempted to convince merchants not to invest in the Dutch West India Company, which was being incorporated at the same time. They exerted pressure on the government to ensure that more rights were granted to the shareholders when the VOC Charter was extended. To a limited extent, the activism of the “dissenting participants” was successful. The 1623 Charter granted certain rights to large investors, including the right to nominate new candidates for appointment as director. The 1623 Charter further regulated insider trading by the directors and encouraged the directors to pay a yearly dividend to the shareholders. In addition, a committee of nine shareholders was entrusted with the supervision of the VOC directors. This corporate body was known as the “Lords Nine” (Heren IX).

This is from Matthijs de Jongh, a judge in the Netherlands. Here is the link.

Afternoon Tea: “‘Chief Princes and Owners of All’: Native American Appeals to the Crown in the Early Modern British Atlantic”

Brandon Christensen Links , , , , , ,

This paper uncovers these indigenous norms by looking at a little-studied legal genre: the appeals made by Native Americans to the British Crown in the seventeenth and eighteenth centuries. These appeals show that they were aware of (and able to exploit) the complicated politics of the British Atlantic world for their own ends, turning the Crown against the settlers in ways they hoped would preserve their rights, and in the process becoming trans-Atlantic political actors. Focusing on three such appeals – the Narragansetts’ in the mid-seventeenth-century; the Mohegans’ which spanned the first three quarters of the eighteenth; and the Mashpee’s on the eve of the American Revolution – this paper explores the way that these Native peoples in eastern North America were able to resist the depredations of the settlers by appealing to royal authority, in the process articulating a powerful conception of their legal status in a world transformed by the arrival of the English. In doing so, it brings an indigenous voice to the debates about the legalities of empire in the early modern Atlantic world.

This is from Craig Yirush, a historian at UCLA. Here is a link.

Why protect speech?

Ethan Blevins Law, Liberty , , , , , , , , ,

The U.S. Supreme Court has extended more protection for speech than other major courts that adjudicate rights, such as the European Court of Human of Rights. Nonetheless, the Supreme Court is frequently wrong about why speech deserves constitutional protection. That error has undermined the First Amendment that the Court purports to protect. Continue reading →

Nightcap

Brandon Christensen Links , , ,
  1. Libertarianism is just as feasible as the rest Nikolai Wenzel, Law and Liberty
  2. Trump’s war on the Deep State Conrad Black, National Interest
  3. Black litigation under Jim Crow Melissa Milewski, OUPblog
  4. Avoiding the Cicero trap Bruce Fein, American Conservative

Nightcap

Brandon Christensen Links , , ,
  1. Canada’s Jews: Maple Leaves and Mezuzahs Bruce Clark, Erasmus
  2. We’re still no closer to the end of Pi Oliver Roeder, FiveThirtyEight
  3. Why is Trump turning his back on Iran’s Christians? Doug Bandow, the Skeptics
  4. What’s divine about divine law? Jacob P. Ellens, Law and Liberty

Nightcap

Brandon Christensen Links , , ,
  1. The NLRB-Damore Memo Ken White, Popehat
  2. Justice Sotomayor on legislative history Jonathan H Adler, Volokh Conspiracy
  3. Bad legal news from China Scott Sumner, EconLog
  4. Hobbesians vs. Rechtsstaaters Federico Sosa Valle, NOL

James Buchanan on racism

Vincent Geloso Economics, History , , , , , , ,

McLean

Ever since Nancy MacLean’s new book came out, there have been waves of discussions of the intellectual legacy of James Buchanan – the economist who pioneered public choice theory and won the Nobel in economics in 1986. Most prominent in the book are the inuendos of Buchanan’s racism.  Basically, public choice had a “racist” agenda.  Even Brad DeLong indulged in this criticism of Buchanan by pointing that he talked about race by never talking race, a move which reminds him of Lee Atwater.

The thing is that it is true that Buchanan never talked about race as DeLong himself noted.  Yet, that is not a sign (in any way imaginable) of racism. The fact is that Buchanan actually inspired waves of research regarding the origins of racial discrimination and was intellectually in line with scholars who contributed to this topic.

Protecting Majorities and Minorities from Predation

To see my point in defense of Buchanan here, let me point out that I am French-Canadian. In the history of Canada, strike that, in the history of the province of Quebec where the French-Canadians were the majority group, there was widespread discrimination against the French-Canadians. For all intents and purposes, the French-Canadian society was parallel to the English-Canadian society and certain occupations were de facto barred to the French.  It was not segregation to be sure, but it was largely the result of the fact that the Catholic Church had, by virtue of the 1867 Constitution, monopoly over education. The Church lobbied very hard  in order to protect itself from religious competition and it incited logrolling between politicians in order to win Quebec in the first elections of the Canadian federation. Logrolling and rent-seeking! What can be more public choice? Nonetheless, these tools are used to explain the decades-long regression of French-Canadians and the de facto discrimination against them (disclaimer: I actually researched and wrote a book on this).

Not only that, but when the French-Canadians started to catch-up which in turn fueled a rise in nationalism, the few public choice economists in Quebec (notably the prominent Jean-Luc Migué and the public choice fellow-traveler Albert Breton) were amongst the first to denounce the rise of nationalism and reversed linguistic discrimination (supported by the state) as nothing else than a public narrative aimed at justifying rent-seeking attempts by the nationalists (see here and here for Breton and here and here for Migué). One of these economists, Migué, was actually one of my key formative influence and someone I consider a friend (disclaimer: he wrote a blurb in support of the French edition of my book).

Think about this for a second : the economists of the public choice tradition in Quebec defended both the majority and the minority against politically-motivated abuses. Let me repeat this : public choice tools have been used to explain/criticize attempts by certain groups to rent-seek at the expense of the majority and the minority.

How can you square that with the simplistic approach of MacLean?

Buchanan Inspired Great Research on Discrimination and Racism

If Buchanan didn’t write about race, he did set up the tools to explain and analyze it. As I pointed out above, I consider myself in this tradition as most of my research is geared towards explaining institutions that cause certain groups of individuals to fall behind or pull ahead.  A large share of my conception of institutions and how state action can lead to predatory actions against both minorities and majorities comes from Buchanan himself!  Nevermind that, check out who he inspired who has published in top journals.

For example, take the case of the beautifully written articles of Jennifer Roback who presents racism as rent-seeking. She sets out the theory in an article in Economic Inquiry , after she used a case study of segregated streetcars in the Journal of Economic History. A little later, she consolidated her points in a neat article in the Harvard Journal of Law and Public Policy. She built an intellectual apparatus using public choice tools to explain the establishment of discrimination against blacks and how it persisted for long.

Consider also one of my personal idols, Robert Higgs who is a public-choice fellow traveler who wrote Competition and Coercion which considers the topic of how blacks converged (very slowly) with whites in hostile institutional environment. Higgs’ treatment of institutions is well in line with public choice tools and elements advanced by Buchanan and Tullock.

The best case though is The Origins and Demise of South African Apartheid by Anton David Lowenberg and William H. Kaempfer. This book explicitly uses a public choice to explain the rise and fall of Apartheid in South Africa.

Contemporaries that Buchanan admired were vehemently anti-racist

Few economists, except maybe economic historians, know of William Harold Hutt. This is unfortunate since Hutt produced one of the deepest and most thoughtful economic criticism of Apartheid in South Africa, The Economics of the Colour Bar.  This book stands tall and while it is not the last word, it generally is the first word on anything related to Apartheid – a segregation policy against the majority that lasted nearly as long as segregation in the South.  This writing, while it earned Hutt respect amongst economists, made him more or less personae non grata in his native South Africa.

Oh, did I mention that Hutt was a public choice economist? In 1971, Hutt published Politically Impossible which has been an underground classic in the public choice tradition. Unfortunately, Hutt did not have the clarity of written expression that Buchanan had and that book has been hard to penetrate.  Nonetheless, the book is well within the broad public choice tradition.  He also wrote an article in the South African Journal of Economics which expanded on a point made by Buchanan and Tullock in the Calculus of Consent. 

Oh, wait, I forgot to mention the best part. Buchanan and Hutt were mutual admirers of one another. Buchanan cited Hutt’s work very often (see here and here) and spoke with admiration of Hutt (see notably this article here by Buchanan and this review of Hutt’s career where Buchanan is discussed briefly).

If MacLean wants to try guilt by (inexistent) association, I should be excused from providing redemption by (existent) association.  Not noting these facts that are easily available shows poor grasp of the historiography and the core intellectual history.

Simply Put

Buchanan inspired a research agenda regarding how states can be used for predatory purposes against minorities and majorities which has produced strong interpretations of racism and discrimination. He also associated with vehement and admirable anti-racists like William H. Hutt and inspired students who took similar positions. I am sure that if I were to assemble a list of all the PhD students of Buchanan, I would find quite a few who delved into the deep topic of racism using public choice tools. I know better and I did not spend three years researching Buchanan’s life. Nancy MacLean has no excuse for these oversights.

Myths of Sovereignty and British Isolation XIX, Charters and Constitutions

Barry Stocker History, Law, Liberty , , , , , , ,

The last post discussed the historical role of law. This post finally delivers the promise to discuss constitutions and charters. The sovereigntist Eurosceptic position in Britain standardly includes an elevation of Magna Carta into the greatest document ever in human liberty or, in more moderate versions of this position, certainly the greatest since it was issued in 1215 and the fount of all worthwhile liberties ever since: blessing Britain and countries which might be considered off shoots, like the USA, Canada, Australia and New Zealand (the ‘Anglosphere’), with a unique appreciation of liberty and parliamentary democracy.

While Magna Carta is of course a remarkable document and the moment it was issued was a remarkable historical moment, these claims are a distortion. It was a Latin document issued under duress during civil war conditions, the duress applied to the king by barons, at a time when the the English aristocracy and monarchy was distinguished from the great body of English by use of the French language and holdings in France.

Magna Carta has nothing to do with parliamentary democracy, it refers to a council of 25 which barons might form if they found the king to be misbehaving, and does not refer to a standing representative body but rather something more like a right of insurrection against a ‘tyrannical’ monarch. This has no more to do with parliamentary democracy than a variety of councils and assemblies existing across Europe at this time, and rather less than some.

Though Magna Carta is dressed up in the language of reasserting traditional rights, this does not make it the expression of a distinctly English or British love of rights based in tradition rather than innovation as the sovereigntists standardly claim. All demands for rights across Europe were expressed in that way at that time, and for centuries before and centuries after. The French Revolution itself started as a demand for ‘restoration’ of rights. The language of restoration is of course frequently a cover for innovation, an attempt to justify innovation by denying what it is.

Magna Carta was the innovatory product of political struggle, not the writing down of the unchanging liberties of old England. The same goes for the struggles for parliamentary power in the seventeenth century which frequently took on the deceptive form of ‘restoration’ of a Magna Carta which was already supposedly a restoration. It is even more fantastical to see the US Constitution as the outcome of Magna Carta, which does not stop many Anglosphere sovereigntist Eurosceptics doing so.

The history, or histories of liberty, is the accumulation of many interacting events, charters and theories in many countries. The growth of British parliamentary power took place in that context as did the US constitution and the Declarations of the Rights of Man and Citizen, which took place during the French Revolution. Like the French Declarations, Magna Carta exists in different versions so there is no pure origin text of liberty in either place. Rival French and Anglosphere attempts to proclaim the priority of either are particularly absurd. These are documents separated by hundreds of years and many other factors.

We cannot imagine modern liberty without either source, though both sources are flawed and open to challenge. The last thing thought and politics based on liberty needs is some sacred unchallengeable text as foundation, inevitably distorting understanding of the varied contexts and sources of liberty, and inevitably distorting our understanding of how ‘sacred’ documents had a source in power politics and political economy. There is no immaculate liberty born outside of struggles over power and appropriation of wealth.

The writing down of liberties in a legal document itself, particularly one that has a special, difficult-to-overturn foundational status, places some constraint on liberty, on how some people now and even more in the future might have some different ideas about liberty and see the earlier document as constraining.

It is certainly the case that a strongly entrenched document like the US Constitution deprives later generations of the liberty to re-imagine liberty and it is certainly the case that such a Constitution conflicts with the common law tradition exalted by British sovereigntist-Eurosceptics, according to which law progresses through the way judges build gradually on earlier cases to interpret statutes and formulate principles of justice.

Clearly a strongly entrenched Constitution with a Bill of Rights added does not come from common law, though it may try to capture some of the principles supposed to be widespread in common law, and must heavily constrain common law judges. The idea of a Constitution standing above politics, constraining it according to pure justice, has at least in the United States made the membership of the Supreme Court and its decisions a matter of constant political contention.

No attempt at a system of liberty can avoid tensions between different sources and understanding of liberty. Unfortunately the Eurosceptic-sovereigntist position largely tends to overlook this, or like someone looking at the Sun, cannot have it directly in its gaze without serious damage. The elevation of common law tradition, Magna Carta, and parliamentary democracy is the elevation of different things which in some sense must always be part of liberty, thinking of the general principles of judicial independence, institutional harmony, and representative government. However, as they conflict there can be no perfect version and no reason to think English, British or Anglosphere solutions can be regarded as above all others and with nothing to learn from the law-governed democracies of mainland Europe.

Next week, the end, a final summary.

Myths of Sovereignty and British Isolation XVIII: Laws, Juridification and the Administrative State

Barry Stocker History, Law , , , , , , , ,

The last post focused on the distinction between civil and common law, with regard to Britain’s position as a common law country in contrast with the civil law tradition of the rest of Europe. The promise at the end was to move onto laws, charters, and constitutions in this post. However, I have found it necessary to discuss the idealisation of common law further and look at how a large part of this looks back to a world which is lost, regardless of predominant legal system as societies have roughly speaking moved from customary law to ‘juridification’ (state centred comprehensive law penetrating all social relations), and then the world we live in now of the administrative state.

The British sovereigntist and Eurosceptic position tends to emphasise a supposed unique British exception from the statist rationalism of civil law, in the ‘common sense’ of the accumulation of law arising from judicial precedent in the decisions of judges in previous cases. This supposedly British exception looks rather challenged when we consider the thoughts of the influential German philosopher Hans-Georg Gadamer in his 1960 book Truth and Method. Gadamer refers to French rationalist Enlightenment in contrast with a German form of Enlightenment based on the original understanding of ‘prejudice’.

Prejudice, in Gadamer’s account, did not begin as a negative term for the constraints of false assumptions, but in a legal process in which the court forms a preliminary opinion in an early stage of proceedings. For Gadamer this represents the continuity of custom and the communal sense of justice in contrast to abstract rationalism. What he describes is not the same as the common law tradition, but represents another way in which the apparent underlying advantages of common law can appear in another system.

The idealisation of common law is really a claim to prolong the role of custom in law into the age of state statutes and deliberately constructed legal codes. Not that an age can be identified in which pure custom operated and no state created laws existed. It can be said that laws used to be less in number and articulated in terms of defending the wisdom of ancestors as part of a generally shared sense of justice.

However, the destruction of such a world, which depends on accepting fictions about the harmonious origin of laws outside the interests of power, was not from the triumph of civil law. The heroic moments of civil law in the process that leads from 1789 French Revolution through constitutional monarchy, republic, and Bonapartist autocracy, are the product of the decay of traditional societies in which localised and regionalised kinds of authority operated in ways which mixed statute and customary law, and where even in conditions of political autocracy the state ruled over either a very small community unified by common experience, or larger units which aggregated such communities rather than enforcing a very uniform and unitary form of sovereignty back by a hierarchical bureaucratic-military state machine.

There were of course elements of the latter, as in the eleventh century Norman Conquest of England, but even this established only a minute state machine by modern standards, which recognised the ‘privileges’ and ‘liberties’ of the City of London, the church, the barons, and so on. The idea of civil law is generally traced back to Rome, bracketed by the Twelve Tables of fifth century BCE Rome and the Corpus Juris of Civilis (often identified with the Institutes which form just one part of it) Justinian promulgated in the New Rome of Constantinople in the sixth century CE.

This civil law prevailed in Roman Britain for four centuries as it did from the Rhine to the Euphrates. The Roman world, including the Greek empire governed from Constantinople, that emerged in the sixth century, was nevertheless a world of localised traditional authority in which central state institutions were more like connecting threads rather than an all inclusive structure.

The Middle Ages saw a process of juridification, as Roman law continued in the church and was revived for the state, in which the uniform administration of justice became strong enough for a system of dominating unifying state military-bureaucratic power to emerge underneath sovereignty that was beginning to become more distinct from the person of a king (or occasionally the persons of an aristocratic assembly).

All European states went through a process, which has been implemented elsewhere, leading to what is now known as an administered society, administrative state, biopower, and all the other terms referring to the inclusive, comprehensive and unifying power of state law and state bureaucracy in relation to society. This was simultaneous with the development of capitalism as a dominant economic system working through unified national markets and trade between states.

A lot of what is said about the difference between common law and civil law represents a wish to return as far as possible to go back to a time before administered societies and even before juridification. There is no time at which law was purely traditional and consensual and no current possibility of even approaching that ideal. Concerns about the administered-juridified society have to be addressed with that world.

The common law tradition might or might not on average be better than the civil law tradition from that point of view, but common law is not what its strongest defenders wish it was and it is not obvious that civil law states in northern Europe including Switzerland, the Netherlands and Denmark, and in a slightly more qualified but real way, Germany are doing worse for liberty and prosperity than the English speaking common law countries. France, the homeland of modern civil law, is itself not doing at all badly compared with most countries in the world as it is and certainly in terms of human history.

For the next post the intention is to finally get onto charters and constitutions.

Myths of Sovereignty and British Isolation XVII: Common and Civil Law

Barry Stocker History, Law , , , , , , , , , , , , , , ,

The last post referred to the need to investigate ideas about law and related ideas in discussing Britain’s relation both with the Anglosphere (USA, Canada, Australia, New Zealand) and with the rest of Europe. The big issue here is Anglosphere common law tradition versus Roman or civil law tradition in the European mainland and indeed most of the world outside the Anglosphere. Common law in this context refers to judge-made law based on precedent versus civil law referring to statute laws based on the will of the sovereign. Statute laws are laws instituted by the state, in writing, in public explicit acts of law making.

Judge-made laws based on precedent refers to the ways in which judges, using a general sense of justice, make judgements according to that sense of justice with the precedents of previous relevant judgements shaping the sense of justice along with the whole set of laws and their general principles. Civil law judges look at the text of statutes, as do common law judges, but apparently the latter category of judges are also concerned with the mixture of precedents and general spirit of the laws.

There are certainly some real differences between common law and civil law traditions, but how straight forward are these difference? The phrase ‘common law’ itself comes from the codification and national harmonisation of laws undertaken by French-speaking kings of England, after William, Duke of Normandy, conquered England. So the phrase ‘common law’ itself refers to the opposite of what common law has come to mean: the English legal tradition since the High Middle Ages has come out of conquest by an external power. We can argue about how far Anglo-Saxon laws and judicial formalities survived the Norman and Angevin re-codification, but there is no denying that the re-codification happened and that nothing now survives from the Anglo-Saxon era.

England started off in the earlier Middle Ages where all of post-Roman Europe stood, that is Roman law had collapsed and Germanic tribes introduced their own laws in conquered territories, where some elements of Roman law survived in the canon law of the church. The Roman law system itself reached a peak with the final codification undertaken under the Emperor Justinian in Constantinople during the sixth century. The transformation of the eastern part of the Roman Empire into a Greek empire included a decline in knowledge of Latin so understanding of the definitive law text was limited, but survived in the Empire including the last Roman-‘Byzantine’ holdings in Italy.

Knowledge of Roman law increased in the thirteenth century, in association with the growth of new universities where legal education played a very large role. England was not outside this process, but it is fair to say that it was less influenced by it than some continental powers, particularly France. The process of Revolution and Bonapartist rule, from 1789, produced a large scale deliberate construction of law as a unified system based on the will of the sovereign (whether elected assembly or absolute monarch) with regard to the laws, which was exported to other parts of Europe in the Revolutionary and Napoleonic wars.

The British commitment to common law was not entirely consistent since Scotland has always retained some differences from England in its legal system, which place it closer to the civil law tradition, at least compared with England. In the United States, there was a parallel to the French republican and Bonapartist experience of redesigned institutions in the process of adopting first the Articles of Confederation and then the Constitution of the United States, which unified the thirteen British colonies in a common structure.

The difference between French and American constitution making is often held to be that the French constitutions claimed that laws are the will of the people and the product of nature, while the American constitution is designed to disperse any idea of a single political law-making will between the different branches of federal government and the ‘several states’. However, the preamble to the US Constitution refers to ‘we the people’ and therefore asserts that it is the product of a single political will of the people in the union.

While the US Constitution does not refer directly to good laws as the work of nature, there were shared underlying assumptions in France and the US concerning the ‘natural’ status of good laws, good political institutions, and justice. It is at least true that the US constitution federalises rather than centralises, while the French process of about the same time ended in a very centralised state. This cannot be the difference between common and civil law systems though, since there are federal civil law states like Germany and Switzerland and unitary common law states like the UK and New Zealand, though the UK has been evolving in a more federal direction, if in a rather ad hoc and limited way, since the turn of the century.

Next, laws, charters and constitutions