Law and Liberty: Hobbesians vs Rechtsstaaters

Individual freedoms are tethered to law, but in what sense? We could call Hobbesian the insight into law and liberty which states that norms are addressed by the sovereign power to the individuals. The Sovereign is the only one who prescribes the law, being the individuals subject to the legal obligation. Even the limitations to the power of the government in the face of fundamental rights – such as the Due Process – are not expressed in terms of limits to the sovereign power but of commands to the public servants: for example, the imprisonment of an individual without accomplishing the legal standards of Due Process allows the government’s agents to punish their unlawful colleagues. The law is always addressed, in the last resort, to an individual by the State.

Proponents of individual liberty thus advocate equality before the law, which means simply “only one state for everyone,” or “individual rights before the state.” Examples include the said guarantee of Due Process, or a system of check and balances among the branches of the government as safeguards against arbitrary coercion by the State. However, they all have a severe difficulty in defending individual liberties without recourse to an extra-system concept, such as natural law, moral duties, or political statements. The emphasis in formal legal procedures would be the utmost in coherence between liberalism and Hobbesianism, but it is easy to slide from procedures that protect individual legal rights to devices assuring the enforcement of the law – which has the individual as its last subject. It seems it is hard to restrain oneself from invoking metaphysical rights when it comes time to advocate individual liberty.

Nevertheless, it should not be surprising that every limit to political power of the State over the individual depends on metaphysical notions, since it is a tenet of the Hobbesian insight that the power of the State is absolute. Moreover, the Minimal State – a true effort to advocate individual liberty without resting on metaphysical notions – owes to Thomas Hobbes its main inspiration.

Historical evidence suggests, however, that in the relation among power, law and liberty is the other way round. The development of common law in England and the phenomenon of the reception of the Roman law in Continental Europe show that law is not necessarily created ex nihilo by the State. The State could provide enforcement to a given system of law, as it is shown in the book System of the Modern Roman Law (System des heutigen Römischen Rechts), by F. K. v. Savigny. Moreover, the States could adapt legal notions originating in private law to elaborate procedures to follow in the public sphere. The principle “venire contra factum proprium non valet” was born in private law and today is a guarantee to the individual against the arbitrary action of the State.

This is the process of rationalization of power described by Max Weber, the German concept of Rechtsstaat or the widely known concept of “Rule of Law.” In that process of rationalization, lawyers outshone the sages, the mandarins, and the humanists in the administration of public affairs by incorporating legal procedures and principles taken from private law. There might be differences among these concepts and historical events, but their common invariances allows us to get the gist.

There is, also, an evolutionary case for the relative advantages of a Rechtsstaat over the notion of sovereignty. In the former the decisions are principle-based while in the latter they are mostly taken by expediency. Since the said principle of venire contra factum proprium non valet and other legal procedures constrain rulers’ whims, government actions are more rational, in the sense of transitivity of preferences.

Thus, in the long run, the performance of the Rule of Law is higher than the Rule of Men. Lawyers outshine mandarins in government posts and, in turn, governments run by lawyers outperform governments run by mandarins. One device to switch from a given form of State to another one is, for example, immigration: people flock to countries where the Rule of Law prevails.

What we have called the Hobbesian insight into Law and Liberty is tied up with the definition of liberty as power. Thus, the equation of law and liberty becomes a zero-sum game: the more state, the less individual liberty, and the less state, the more individual liberty. On the other hand, the definition of individual liberty as absence of arbitrary coercion engages with the concept of Rule of Law: to substitute principles for expediency reduces arbitrary coercion and, thus, enlarges individual liberty.

Does this Rechtsstaat insight into Law and Liberty dissolve the question about the dimensions of the State? Not at all. But it provides a more strategic view: a big State will demand more decisions to be taken on expediency. A small state will provide two advantages to the enjoyment of individual liberty as absence of arbitrary coercion: more decisions based on principles and a larger space for the law to evolve by its own and discover new legal principles in response to the constant changes in the society.

But even if the conclusions might be the same (a smaller State), the two insights carry within them a set of premises that ineluctably will unravel by themselves when it comes the time of a deeper controversy. Then, the Hobbesian Insight will present the disjunction between Minimal State and metaphysical boundaries to the absolute power of the State. The Rechtsstaat strain, instead, will provide a humbler but subtler position.

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2017: Year in Review

Well folks, another year has come and gone. 2017 was Notes On Liberty‘s busiest year yet. Traffic came from all over the place, with the most visits coming from the US, the UK, Canada, Australia, and India. (In the past, India and Germany have vied for that coveted 5th place spot, but this year India blew Germany out of the water.)

NOL is a voluntary cooperative, and as such this year saw the introduction of 6 new Notewriters: Kevin Kallmes, Nicolás Cachanosky, Ash Navabi, Tridivesh Maini, Matthew Bonick and Trent MacDonald.

Michelangelo invited Kevin to join, Nicolás is an old grad school buddy of Rick‘s, I reached out to Tridivesh, and Ash and Matthew were invited on Vincent‘s initiative.

Speaking of Vincent, 2017 was his year. He had Tyler Cowen (MarginalRevolution), Mark Thoma (Economist’s View), Anthony Mills (RealClearPolicy), Barry Ritholtz (Bloomberg), Don Boudreaux (Cafe Hayek), John Tamny (RealClearMarkets) and Pseudoerasmus (a well-regarded economic historian) all link to his thoughts multiple times over the course of the year. His Top 10 list for best papers/books in recent economic history (Part 1 and Part 2) were legitimate viral sensations, dominating the top 2 spots on NOL‘s most-read list. Other huge posts included “Did the 30 Glorious Years Actually Exist? (#5),” “The Pox of Liberty – dixit the Political Economy of Public Health (#9),” “James Buchanan on racism,” “The GDP, real wages and working hours of France since the 13th century,” “Did 89% of American Millionaires Disappear During the Great Depression?,” and “A hidden cost of the war on drugs.” My personal favorite was his “Star Trek Did More For the Cultural Advancement of Women Than Government Policies.” Dr Geloso’s thoughts made up 40% of NOL‘s 10 most-read 2017 posts.

My favorite posts from Edwin this year were his analyses of Dutch politics – “Dutch politics, after the elections” and “North Korea at the North Sea?” – but the reading public seemed to enjoy his posts on Ayn Rand, especially her thought on international relations, and his summary of Mont Pelerin Europe more than anything else. Van de Haar’s day job is in the private sector, so his blogging is understandably light (especially given his incredible publishing output in academic journals). I look forward to what looms ahead in 2018.

Federico’s most recent post on artificial intelligence and the law got love from some major outlets, including FT‘s Alphaville blog and 3 Quarks Daily. His question “Does business success make a good statesmen?” and his report on a Latin American Liberty summit are worth reading again, but my personal favorites were his comments on other Notewriters’ thoughts: first jumping in to add some historical clarity to Bruno’s post on Latin American conservatism and then to add layers onto the debate between Mark and Bruno on the Protestant Reformation. Federico has been invaluable to NOL‘s welcoming, skeptical culture and I cannot wait to see what he comes up with in 2018.

Barry was generous enough recount the situation in Turkey after the coup earlier in the year, and fruits of this endeavor – Coup and Counter Coup in Turkey – can be found in six parts:

  1. First of a series of posts on Turkey since 15th July 2016 and background topics
  2. Immediately after the coup and party politics
  3. Gülenists and Kemalists
  4. The Kurdish issue in Turkey
  5. Jacobins and Grey Wolves in Turkey
  6. Presidential Authoritarianism in Turkey

Dr Stocker also began writing an appendix to his six-part series, which resulted in a first post on authoritarianism and electoral fixes. Barry is hard at work on a new book, and of course the situation in Turkey is less than ideal, so I can only hope he has a bit more time in 2018 for NOL.

Michelangelo had a banner year at NOL. His #microblogging has been fun, as were his post analyzing relevant data from his surveys: What libertarians think of climate change, for example, or urban planning in Oregon. Michelangelo also utilized NOL to play around with concepts like race, marriage markets, data, Spanish language services, affirmative action, and freeware, to name a few. My absolute favorite Michelangelo post this year was his excellent “Should we tax churches? A Georgist proposal.” Michelangelo is a PhD candidate right now, too, so if he ever gets some time to himself, watch out world!

Rick also had a banner year at NOL. His post arguing against Net Neutrality was one of the most-read articles of the year here (#4), and many of his wonkier thoughts have been picked up by the sharp eye of Anthony Mills (RealClearPolicy) and the excellent Chris Dillow (Stumbling and Mumbling). Rick is my favorite blogger. Posts on cycling in Amsterdam, subsidies, management and measurement, linguisticsmore subsidies, and my personal favorite of his for the year, “Why do we teach girls that it’s cute to be scared,” always make me think and, more importantly, smile.

Bruno’s blogging was also amply rewarded this year. His thoughts on some of the problems with postmodernism brought in the most eyeballs, but thankfully he didn’t stop there: Articles introducing postmodernism and highlighting the origins of postmodernism also generated much interest. RealClearWorld picked up his post analyzing Brazil post-Rousseff (he had more analysis of Brazilian politics here and here), and his post delving into whether Nazism is of the left or the right provoked quite the dialogue. Dr Rosi was at his best, though, when prompted by Mark to further advance his argument that the Protestant Revolution played an integral role in the rise of the freedom of conscience. Times are tough in Brazil right now, so I can only hope that Bruno continues to play a vital role as a Notewriter in 2018.

Chhay Lin, now in the private sector, had his post about Bruce Lee’s application of Taoist philosophy head to the top of reddit’s philosophy sub, and his post on Catalonia and secession got love from RealClearWorld and Lew Rockwell (Political Theater). I hate to be *that* guy distracting a man from making his money, but I hope to see Chhay Lin pop in at NOL much more often in 2018!

Zak has been busy with a number of different projects, as well as attending Michigan-Ann Arbor full-time. He still managed to have one of his posts, on “libertarian” activist hypocrisy (#10), highlighted in the Guardian, the UK’s premier left-wing mouthpiece. His post on The Nancy MacLean Disgrace earned him plaudits from the online libertarian community and Don Boudreaux (Cafe Hayek), and his posts on open borders and income inequality show just how much of a bad ass he has become. I had a tough time trying to pick out my favorite Zak article of 2017, so I’m just gonna highlight all three of them:

  1. Immigration, Cultural Change, and Diversity as a Cultural Discovery Process
  2. Why I’m No Longer A Christian…
  3. Against Libertarian Populism

They’ve all got great self-explanatory titles, so do yourself a favor and read ’em again! Hopefully Zak can continue to work NOL in to his many successful ventures in 2018.

Jacques continues to amaze me. He’s been retired from academia for – as far as I can tell – at least a decade and he’s still producing great material that’s able to reach all sorts of people and places. His post on the Ottoman Empire and libertarianism (#6), which was featured at RealClearWorld and much-shared in Ottomanist corners of Twitter – took aim at popular American libertarian understandings of decentralization and seems to have landed pretty squarely on target. My favorite post of Dr Delacroix’ this year was about French Africa (also featured at RealClearWorld), but his late-year book review on Christopher De Bellaigue’s 2017 book about Islam might end up being a classic.

Bill’s 2017 here at NOL was productive and he continues to impress. His “Speech in academic philosophy: Rebecca Tuvel on Rachel Dolezal” brought in thousands of readers, but it was not his ability to draw crowds that I found impressive. His ability to tackle tough concepts and tough issues came to the forefront this year: drug use, “vulvæ,” more drug use, party culture (my personal fave), schooling (another personal fave), more schooling, and music (personal fave). Bill’s ability to weave these trends together through the lens of individual freedom is so much fun to read and important for fostering a culture of tolerance and respect in today’s world. I can’t wait to see what 2018 has in store for him!

Nicolás came out firing on all cylinders this year. With excellent dialogues between himself and Vincent, as well as between himself and guest blogger Derrill Watson (who I hope will be back for more in 2018), Dr Cachanosky’s passion for teaching has shown through clearly and brightly. I hope 2018 – his first full year with NOL – is filled with much more hard-hitting but insightful blogging from Nicolás.

Ash brought the heat, too. Check out the subject matter of his first few posts here at NOL: “A Right is Not an Obligation,” “Physical Goods, Immaterial Goods, and Public Goods,” “The Economics of Hard Choices,” “Markets for Secrets?,” “A Tax is Not a Price,” and “A Radical Take on Science and Religion.” Like Nicolás, Ash’s first full year at NOL is coming up, and if 2017 is any indication, readers can look forward to an interesting and engaging 2018.

Mark’s first full year here at NOL was a definite barnburner. His debate with Bruno on the Protestant Reformation (#8) brought in a bunch of eyeballs, including from RealClearHistory, while his “The Return of Cyclical Theories of History” also brought in thousands of readers, thanks in large part to Robert Cottrell’s excellent website, the Browser. Dr Koyama’s review of Aldo Schiavone’s The End of the Past also caught Mr Cottrell’s eye and the attention of his readers. Mark’s post on geopolitics and Asia’s “little divergence” is well worth reading again, too. Like Zak and Bill’s posts, I couldn’t choose just one favorite, so I give you two:

  1. Political Decentralization and Innovation in early modern Europe
  2. Some Thoughts on State Capacity” (an especially good criticism of American libertarian understandings of the “state capacity” literature)

We’re lucky to have Mark here at NOL.

Kevin, like Ash and Nicolás, brought the ruckus for his first few posts here at NOL. Kevin’s very first post at Notes On Liberty – “Rules of Warfare in Pre-Modern Societies” (#3) – ended up on the front page of RealClearHistory while his “Paradoxical geniuses…” earned a spot on the Browser‘s prestigious reading list. Not a bad start. Kevin will be finishing up the second half of his first year of law school (at Duke), so I doubt we’ll see much of him until June or July of 2018. My personal favorite, by the way, was Kevin’s “Auftragstaktik: Decentralization in military command.” His posts on taking over Syria – Roman style, the median voter theorem, and inventions that didn’t change the world also got lots of love from around the web.

Nick’s post on public choice and Nancy MacLean (#7) earned a nod from Arnold Kling (askblog), Don Boudreaux (Cafe Hayek), Chris Dillow (Stumbling and Mumbling), Mark Thoma (Economist’s View), and pretty much the entire online libertarian community, while his post analyzing the UK’s snap election earned a spot at RealClearWorld. Dr Cowen’s thoughts on school choice and robust political economy, as well as a sociological analysis of Trump/Brexit prompted by Vincent, all garnered love from libertarians and scholars around the world. My favorite Cowen post was his question “Is persecution the purpose?

Overall, it was a hell of a year here at Notes On Liberty. I’m really looking forward to 2018. Here’s to a happy, healthy you. Oh, and my proudest piece this year was “North Korea, the status quo, and a more liberal world.” HAPPY NEW YEAR!

What if we have already been ruled by an Intelligent Machine – and we are better off being so?

Common people and even reputed scientists, such as Stephen Hawking, have been worrying about the very menace of machines provided with Artificial Intelligence that could rule the whole human genre in detriment of our liberty and welfare. This fear has two inner components: the first one, that the Artificial Intelligence will outshine human intellectual capabilities; and the second one, that the Intelligent Machines will be endowed with their own volition.

Obviously, it would be an evil volition or, at least, a very egotistic one. Or maybe the Intelligent Machines will not necessarily be evil or egotistic, but only as fearful of humans as they are of machines – although more powerful. Moreover, depending on their morality on a multiplicity of reasonings we cannot grasp, we could not ascertain whether their superior intelligence (as we suppose the feared machines would be enabled with) is good or evil, or just more complex than ours.

Nevertheless, there is still a additional third assumption which accompanies all the warnings about the perils of thinking machines: that they are a physical shell inhabited by an Artificial Intelligence. Inspired by Gilbert Ryle’s critique of Cartesian Dualism, we can state that the belief of Intelligent Machines provided with an autonomous volition rests upon the said assumption of an intelligence independent from its physical body: a self-conscious being whose thoughts are fully independent from the sensory apparatus of its body and whose sensations are fully independent from the abstract classification which its mind operates by.

The word “machine” evokes a physical device. However, a machine might as well be an abstract one. Abstract Machines are thought experiments compounded by algorithms which delivers an output from an input of information which, in turn, could be used as an input for another circuit. Theses algorithms can emulate a decision making process, providing a set of consequences for a given set of antecedents.

In fact, all recent cybernetic innovations are the result of the merging of abstract machines with physical ones: machines that play chess, drive cars, recognize faces, etc.. Since they do not have an autonomous will and the sensory data they produce are determined by their algorithms, whose output, in turn, depends on the limitation of their hardware, people are reluctant to call their capabilities “real intelligence.” Perhaps the reason of that reluctance is that people are expecting automata which accomplish the Cartesian Dualism paradigm of a thinking being.

But what if an automaton enabled with an intelligence superior to ours has already existed and is ruling at least part of our lives? We do not know of any being of that kind, if for a ruling intelligent machine we regard a self-conscious and will-driven one. But the ones who are acquainted with the notion of law as a spontaneous and abstract order will not find any major difficulty to grasp the analogy between the algorithms that form an abstract machine and general and abstract laws that compound a legal system.

The first volume of Law, Legislation, and Liberty by Friedrich A. Hayek, subtitled “Norms [Rules] and Order” (1973), is until today the most complete account of the law seen as an autonomous system, which adapts itself to the changes in its environment through a process of negative feedback that brings about marginal changes in its structure. Abstract and general notions of rights and duties are well-known by the agents of the system and that allows to everyone to form expectations about the behaviour of each other. When a conflict between two agents arises, a judge establishes the correct content of the law to be applied to the given case.

Notwithstanding our human intelligence -using its knowledge about the law- is capable of determining the right decision to each concrete controversy between two given agents, the system of the law as whole achieves a higher degree of complexity than any human mind might reach. Whereas our knowledge of a given case depends on acquiring more and more concrete data, our knowledge of the law as a whole is related to more and more abstract degrees of classifications. Thus, we cannot fully predict the complete chain of consequences of a singular decision upon the legal system as a whole. This last characteristic of the law does not mean its power of coercion is arbitrary. As individuals, we are enabled with enough information about the legal system to design our own plans and to form correct expectations about other people’s behaviour. Thus, legal constraints do not interfere with individual liberty.

On the other hand, the absolute boundary to the knowledge of the legal system as a whole works as a limitation to the political power over the law and, thence, over individuals. But, after all, that is what the concept of rule of law is about: we are much better off being ruled by an abstract and impersonal entity, more complex than the human mind, than by the self-conscious -but discretional- rule of man. Perhaps, law is not at all an automaton which rules our lives, but we can ascertain that law -as a spontaneous order- prevents other men from doing so.

Lunchtime Links

  1. oil and Kurdistan
  2. after Raqqa, Iraq’s army turns on Kurdistan
  3. “There has been a common and unfortunate tendency among many analysts and policy makers to underestimate the strength of Iraqi nationalism”
  4. separatist movements in Europe don’t actually want independence
  5. GREAT topic, but poor methodology, poor theory, poor use of data, and bad faith
  6. meh (try this book review instead)
  7. Law without the State [pdf]

On the Difference between Hayek’s Road to Serfdom and Increasing Central Planning

Once, in another place, I had pointed out the misunderstandings of the common interpretation of Hayek’s road to serfdom thesis. This was not an unintended process by which government intervention on markets inevitably leads to further and increasing interventions. That might be Ludwig v. Mises’ thesis, but not Hayek’s.

What Hayek stated in The Road to Serfdom was that the checks- and-balances system of modern constitutionalism appears as an obstacle to the quick achievement of the concrete ends that an interventionist policy aims for. Thus, the road to serfdom is an unintended process by which legal constitutional processes are eroded by decisions based on expediency.

On that occasion it was left pending to solve the question of where the confusion on the central thesis of “The Road to Serfdom” came from.

The source of the answer to this question is yet Ludwig v. Mises. The Road to Serfdom was first published in 1944, but, previously, in essays published in 1935, we find Hayek, still heavily influenced by L. v. Mises, stating opinions that are very similar to the common confusion about the meaning of the road to serfdom: “In fact, however, if by planning is meant the actual direction of productive activity by authoritative prescription to be used, or the prices to be fixed, it can be easily shown, not that such a thing is impossible, but that any isolated measure of this sort will cause reactions which will defeat its own end, and that any attempt to act consistently will necessitate further and further measures of control until all economic activity is brought under one central authority” (“Socialist Calculation I: The Nature and History of the Problem”, first published in Collectivist Economic Planning, London,  1935, and reprinted in Individualism and Economic Order, Chicago, 1948).

F. A. Hayek did not change his opinions of 1935 in The Road to Serfdom (1944), he just shifted the realm of his inquiry from economics to political philosophy. Nevertheless, it would be a crass error to judge Hayek’s political and legal theory -for good or for bad- using his former opinions as an economist.

The Political is about to disrupt the crypto-currency scene -or at least they say so.

According to this Financial Times report, Bitcoin is at the verge of a critical decision.

The implications of the chosen terms (“existential crisis,” “decisive leadership,” “political flaw”) are not casual. It looks like the market that crypto-currency had carried from the beginning contain the germ of its own destruction. As in an Escher’s drawing, Bitcoin has unraveled its political strand and its whole existence is, now, dependent upon a moment of decision of the sovereign: the assembly of miners. The decisionist narrative would be fulfilled if the political decision had to be taken by acclamatio instead of voting.

Nevertheless, the decision by acclamation would be still possible: the ones who want “Bitcoin Core” might follow one direction and the other ones, who choose “Bitcoin Unlimited,” might follow their own way. After all, no existential crisis can be solved by voting.

So, which is inside of which? Is the market framed in a system depending upon a political decision of the sovereign? Or does every decision need to be taken inside a spontaneous framework of rules?

We are used to praising Bitcoin for its independence from any political factor: Bitcoin supply depends on a set of rules which allows the public to form expectations about its value with a high degree of probability of proving to be correct.

Taken in isolation, Bitcoin emulates the market. Nevertheless, being independent of political institutions is not enough for being “the market.” The attractiveness of Bitcoin is that it operates in an open system of competition of currencies. In this system, there are many other crypto-currencies, and there might be several variances of Bitcoins as well –in esse or in posse.

Imagine, for example, that Bitcoin effectively splits into Bitcoin Core and Bitcoin Unlimited. Which of the two will prevail over the other? It does not matter. What really matters is that there will be several variances of currencies in competition. The factors that determine the selection of the prevailing currency depends upon a higher level of abstraction that impose an absolute limit to our knowledge.

So, is Bitcoin in an existential crisis? Does a political decision need to be made? Maybe.

But that does not imply that “The Political” will take over the reins of the crypto-currency market. Moreover, opposite political decisions are the linkages which the spontaneous selection process -in this case, of currencies- is made of. In this sense, “Bitcoin Core” and “Bitcoin Unlimited” are attributes of a competitive system and the final prevalence of one variance among other alternatives will not be the result of a deliberate decision but of an abstract process of evolution.

Lunchtime Links

  1. Trophy-taking and dismemberment as warfare strategies [pdf]
  2. optimally vague contracts and the law [pdf]
  3. Germanic and Carthaginian republicanism
  4. traditional resurgence in tropical Africa [pdf]
  5. crisis bureaucracy: homeland security and the political design of legal mandates [pdf]