Another aspect of the discretionary law enforcement consists of its selective application to opponents and social groups that fulfill the function of “scapegoats.” The history of humanity, fundamentally of the 20th century, offers unfortunately plenty of examples of such types of practices: application of norms that apparently had fallen into disrepair on certain sectors of society, investigations and meticulous follow-ups of opponents and their families concerning compliance with regulations rarely required of the rest of the citizens, are news that are familiar to the inhabitants of countries with undemocratic governments.
On the other hand, countries in which compliance with the rules is relatively low, generally sanction and enact extremely severe laws, without greater social or political resistance, since, considering its low compliance, few grant it the seriousness that they truly have. However, bearing in mind that the primary and exclusive function of every government consists of enforcing legal norms, the lower the degree of application of them, the greater the degree of discretion that such government will have if it decides to raise the degree of regulatory compliance, either in general terms for the entire legal system, or for a certain set of rules and either for the entire population as a whole or for a selectively identified part of it.
Of course, the selective application of the rules, when it is practiced without distinguishing individuals or social groups, works as a “fine-tuned” mechanism that makes the legal system more efficient. What is sought here are those anomalies that imply an authentic dissolution of the Rule of Law and the outright persecution of individuals or social or ethnic groups. It goes without saying that a legal system with a very high degree of law enforcement gives governments a very restricted margin of maneuver, so it could also be said that the high regulatory application works as a safeguard aimed at guaranteeing equality before the law and to avoid the aforementioned persecutions.
Culturalist explanations vs. systemic ones
The opinion that adherence to the norm is a cultural characteristic that varies from people to people is widely extended, to the point of becoming commonplace. There would be countries or regions that have a higher level of compliance and respect for the law, while kilometers further east or south, the behavior of individuals would change drastically. Theories about climates, religions, the role of civic education, and so on attempt to explain why certain countries abide by the laws they give themselves while others use them as “fa trap for fools”
This writing tries to defend the opposite thesis: it is the level of application of the norms that determines the cultural characteristics of the peoples and not the other way around. Culture is an adaptive response to the institutional determinants in force in each country.
To illustrate this last assertion with a hypothetical example: In a country where regulations are 50% enforced -that is, the citizen interprets it as a coin that turns in the air- no one will want to be within the group of inhabitants whose decisions they are constrained by the rules, since that would place them at a strong disadvantage compared to their peers who do not receive equal limitations, even more so if they are their competitors. Furthermore, regulatory transgression – such as tax evasion, in a context in which competitors do not pay their taxes – can often mean commercial survival for the individual. If, for example, if the municipal authorities impose a series of charges on restaurants in terms of hygiene conditions, number of tables per square meter and labor regulations, but also does not control compliance with such provisions, the merchant who complies with them it will be at a severe disadvantage compared to its competitors, who will be in a position to offer better prices or reinvest the profits from the savings generated by the non-compliance with the regulations in a better quality of service in other aspects of the restaurant.
Of course, inspections by the control body represent a costly expense to finance and, therefore, governments deploy “exemplary actions.” That is, for our example, they inspect a small number of establishments, but enough so that all the rest of the non-inspected businesses still comply with the standard in the event of receiving a random inspection. In these cases, the selective law enforcement is highly efficient: since it achieves high compliance with the law at a relatively lower cost.
However, cases that are dysfunctional have other characteristics. The first of these is that the level of law enforcement by the public powers is really low. The second is that the penalties – imprisonment, fine or compensation – are extremely high, since their main function is to counterbalance the relatively low degree of regulatory application. The third is that the rulers have such a high margin of maneuver, attentive to the low habitual application of the norms, that their application has the same effects as a norm created at the time by the government for a special situation. In other words, in practice the Rule of Law has been dissolved.
This leads us to the distinction between a government that makes decisions based on rules and principles versus another that motivates its decisions on matters of opportunity, merit or convenience, that is, pure discretion. Of course, here we are also faced with two polar definitions, one and the other model of government are ideal types in the Weberian style. Every rule-based government needs to carry out its action with a certain level of discretion. At the same time, even a tyrant, who wields power despotically, needs a minimum of predictable structure, at least to maintain his own identity as a ruling subject. However, it is relevant to establish the distinction between government decisions based on norms and principles and those that are guided exclusively by reasons of opportunity, for the purpose of making a judgment on the level of individual freedom that predominates in a certain political regime.
- The Protestant ethic and the spirit of…nationalism? Wohnsiedler, et al, VOXEU
- Protestantism and the rise of capitalism (pdf) Delacroix & Nielsen, Social Forces
- America’s debt to Swiss intellectuals Bradford Littlejohn, Modern Age
- Up from colonialism Helen Andrew, Claremont Review of Books
- How American couples are struggling through the pandemic Rafael Nam, NPR
- The thing party (GOP) vs. the idea party (Dems) Scott Sumner, EconLog
- Karl Marx was right (pretty much) Jacques Delacroix, NOL
- Does Max Weber’s theory hold up today? Corey Robin, New Yorker
- Searching for consolation in Max Weber’s Work Ethic George Blaustein, New Republic
- Keep doing what you love Federico Varese, Times Literary Supplement
- The conservative origins of British socialism Johnathan Rutherford, New Statesman
- The question that tormented Søren Kierkegaard Morton Jensen, American Interest
It is fairly common for young children in Brazil (or at least in Rio de Janeiro, the part of the country I know better) to call adults “uncle” or “aunt”. My closest friends’ children call me uncle and I’m totally ok with that. I do see them as my nephews and nieces. That also happens in schools: children up to 11 or 12 call the teachers “aunt”. Some people think that this is normal or even cute. However, I studied in a school that strictly forbid children to call the teachers aunt. The teachers were supposed to be called simply “teacher”. One interchange became folkloric in my house: “Am I your father’s sister? Am I your mother’s sister? Am I married to your uncle? Then I’m not your aunt.” Ouch! As gruff as it might sound, that’s the mentality I grew up with. My mother was also never totally comfortable with some of my friends calling her “aunt”.
One of my favorite interpretations of Brazil came from Sérgio Buarque de Holanda (1902-1982). In his book Raízes do Brasil (Brazil roots, 1936) he made an analysis of the country, saying that the problem with Brazilians is that they are cordial. Using Max Weber’s categories, Holanda said that Brazilians don’t know how to conduct formal, impersonal relationships. It is really hard for them (or I should say, for us) to understand that the guy in office is the guy in office and not our friend.
I would say that many times I saw Holanda’s interpretation in action. Students who thought they were my friends and that because of that I would go easy on their exams. Colleagues who thought I wouldn’t fine them when I was working in the library. People I barely knew, who were friends of my friends, who thought I would give them answers for the exams. I managed to be friends of some students, but that was the exception. Most students had a hard time distinguishing between “Bruno, my friend” and “Bruno, my professor”. Worse, some, I don’t know how, came to the conclusion that I was their friend.
Lula da Silva, Brazil’s former president, presented himself as a father. He introduced Dilma Rousseff, his successor, as a mother. Getúlio Vargas, the horrendous dictator from the 1930s was widely known as “the father of the poor”. I’m sad to say that Jair Bolsonaro, Brazil’s current and supposedly right-wing president, doesn’t really scape this logic. It may be nice and cute when little children call adults aunt or uncle, but it sickens me when grownups use this language. Even more so, when they use it to people they don’t even know!
Sergio Buarque de Holanda is one of the few things from college I profited from reading. It helped me to escape the Marxist bog that is much of Brazilian humanities academia. Years later I read Good Capitalism, Bad Capitalism and I discovered that Brazil was not alone. That is the problem with many so-called capitalist countries that still lag behind. They are not really capitalist in the sense that the US, much of Western Europe or Japan and other Asian countries are, and one of the main reasons for that is that people don’t know how to conduct impersonal, formal relationships. The teacher is not your aunt, and the country is not a big family.
The affirmation that one should not judge the historical past with current values forms a topic as widespread as the disobedience to it. However, a conscious exercise of the evaluative critique of the past allows us to identify continuities and disruptions in institutional patterns, i.e., in systems of incentives that are considered legitimate, whether by virtue of a question of social utility or principles.
Caste systems are obvious examples in which a differentiated attribution of rights, that is to say the legal protection of the interests of individuals assigned to a certain ethnic group, was interpreted as legitimate because it was a matter of principle.
While a caste is defined by an ethnic component, or at least with respect to its physiognomic marker, in the status system the ethnic differences lose preponderance, to transfer it to the different private orders or privileges that determine a function within the society. In both cases, both in the system of castes and status, it should be noted that they not only define privileges for its members but mainly establish obligations: war, worship or field work, for example. While the cult is reserved for a certain caste, in the status societies the cult is an institutionalized function, an order, whose members fulfilled certain procedures of admission and permanence.
In any case, beyond the similarities and differences in the systems of castes and status, what matters in this case is to emphasize that such attributions of rights and obligations, that is, of legal protection of interests, collective or particular, do not respond to a question of social utility but of principles. In the first place, because in such societies the power is fragmented and therefore there is no central power that can perform a critical judgment on the social utility of a given system of incentives; at the most, if there is a king, he assumes a role of primus inter pares, an arbitrator between castes or statuses or protector of order.
The emergence of central governments demanded the emergence of stable bureaucracies supported by a tax system to be systematized in a public accounting, that is, a calculation of utility. On the other hand, the incorporation of abstract procedures from private law to the administration of the government, displacing the systems of sages, mandarins, humanists, etc., allowed a better centralization and control and rational administrative decisions. However, what is important to note here is that such institutional innovations did not necessarily depend on a disruptive change, such as a revolution, but that many cases occurred through an evolutionary process, in which more efficient institutions displaced obsolete ones.
The emergence of central governments replaced fragmented political and social systems, because centralization allows a calculation of utility in decision making, which yields better results -not always but most of the time- than a decision system based mainly on honour. Most of the time but not always, since there is the possibility that, in a situation of extreme complexity, the calculation of utility has a wide margin of error and, in contrast, in such situations, a pattern of decisions based on emotions, traditions, or moral principles work as a kind of heuristic better adapted to the circumstances. After all, for the calculation of utility to be viable, it must have tools such as an accounting system, a literate bureaucracy, an abstract procedural system, among others. If you do not have such means, hardly a decision based on utilitarian issues is far from whimsical and arbitrary. Faced with such cases, traditional structures could be more efficient.
Another issue to consider is not to be confused between the rationalization of political power in a central administration – public budgets and control of their execution, a neutral and efficient tax system, administrative decisions of a particular nature adopted according to abstract and general procedures – with the rationalization of each subsystem of society and even of the individual in particular.
It is true that, as indicated by Max Weber, the bureaucratization of political power leads to the gradual bureaucratization of the rest of society: the generalization of the same accounting system for all companies, in order to verify compliance with tax obligations, the public instruction of the whole population, to name a few examples. These processes of rationalization are extremely beneficial and generate a jump in productivity. This is what William Easterly, in his work The Quest for Economic Growth, highlights as a phenomenon in which knowledge leaks and spreads throughout society. In this way the relations of complementarity generated by the knowledge shared with the rest of the individuals that make up a given community are much more important than the substitution effect could give an advantage to a single possessor of such knowledge. For example, having knowledge of accounting represents an advantage over the competition, but that all companies are organized according to reasonable and homogeneous accounting principles allows a jump in productivity throughout the system that yields even greater individual profits. Likewise, not only the leaking of knowledge is beneficial for all members of society, but reached a point is inevitable.
However, this does not mean that a rationalization of the society as a whole and of the individuals that compose it is necessarily possible or desirable; much less that such process is directed from a central political power. A process of compulsive and totalizing rationalization is not always modernizing. Both in biological and cultural terms, the evolution occurs in the margins, it is the mutations of small isolated populations that allow them to adapt to changes in the environment.
Moreover, the totalizing political systems, which not only seek to define from a central power each one of the functions of the social subsystems in function of a supposed calculation of utility, also seek to build a notion of “citizenship” that stifles the sphere of autonomy that defines each individual with civic obligations. Such conceptions are the first to see the processes of innovation and creative destruction and any individual initiative as dangerous. Thus, by cutting off all possible adaptation to changes in circumstances, by mutilating all possible discoveries, it is not uncommon for such political systems to experience stagnation and be displaced by other systems more open to innovation – or at least be invaded by results of said competition, discovery and innovation processes.
It is a characteristic feature of Modernity to separate between private morality and public ethics. The first concerns the ethics of principles by virtue of which each individual governs his own sphere of autonomy. Each individual, while not interfering in the interests of third parties, is a legislator, judge, and part of their own moral issues. The law regulates conflicts of interest between individuals, giving legal protection to a certain range of interests and systematically denying it to others (Friedrich Hayek, Law, Legislation and Liberty, Volume I, “Norms and Order”, 1973). For example, in almost all modern legal systems the interest to move and, fundamentally, to leave a territory is protected through the freedom of locomotion. In the meantime, a producer may feel prejudiced by the mere existence of competition and nevertheless he may be denied the right to protection of his monopoly (since a “right” is a legally protected interest). In both cases, questions of principle and questions of social utility are combined.
In most modern systems, the interest to circulate freely is solved more by addressing questions of principles than of social utility – the right to freedom of locomotion is enshrined without addressing arguments about the utility of denying legal protection with respect to another interest. While the problems of protectionism and competition are considered mainly in terms of their social utility, the arguments about whether a certain individual or group of individuals have, as a matter of principle, the right to monopolize an economic activity by the mere fact of belonging to a certain ethnic group, estate, or guild today sounds ridiculous, but not in the past.
The widespread distinction practiced by Max Weber between ethics of conviction and ethics of responsibility continues in force. Individuals, in their private lives, have the right to make decisions following the ethics of conviction, although their principles may be debatable, obsolete, incongruous, and arbitrary. In any case, the consequences will have to weigh on the agents of the decision themselves. On the other hand, the consequences of the decisions of politicians extend to the whole society. The ethics of responsibility becomes relevant here, which, although it may come into conflict with the ethical principles most widely spread among members of society – that is, the current morality – it must address issues related to social utility. This is to say that a substitution of the current morality for welfare economics would be operated.
However, the Weberian notion of ethics responsibility brings with it all the problems of instrumental reason: the means-that is, the resources to be sacrificed-must be proportional to the ends-in this case, the social utility-but remains open to definition what are the values that will define social utility. This is how the question of principles is reintroduced, the discussions about what is right and what is wrong, i.e. morality, in the political sphere. Correlatively, the critiques around the notion of subjective or instrumental reason once formulated by Max Weber are also applicable to the aforementioned welfare economy, so that they retain special validity.
When Friedrich A. Hayek referred to the coordination problems among rational agents as a consequence of the dispersion of information in the economic system -and that made him worthy of the Nobel Prize in Economics- he did not refer to an information problem that could be solved with better statistical tools. This is also a problem of the economics of information and what Hayek himself called “limit relative to knowledge,” since the frontiers of science could be continuously extended, generating more and more information. The limit that Hayek qualified as absolute for knowledge came from the increasing degrees of abstraction and complexity characteristic of any “extended society.” This to the point of calling such phenomena spontaneous orders, or abstract or extended. Such orders allowed the prediction of the general configuration of the system, but they made impossible the concrete prediction regarding the relative position of each particular element of the system. If one looks for an example of such an institutional arrangement, Hayek himself would point as such to the legal systems that structured the mercantile communities, not because they lacked legislation or a state that monopolized its enactment, but because it provided the members of such a mercantile community of a dispute resolution system whose complexity acted as a guarantee of impartiality.
There is much talk of the virtues of institutions as guarantors of predictability, or legal security, or political stability and clear rules of the game. All of them are positive qualities that express the favorable consequences of a negative quality -negative not in the sense of pernicious, but of absence of a particular characteristic- that can be defined as “absence of arbitrariness.” In general, the concept of freedom is related to that of “free will,” which is very desirable for those who exercise it, but it could become a hell for those who suffer the free will of a third party. The institutions are, as it was pointed out, abstract limitations to the social human action that are structuring of the political, economic, and social interaction; in other words, they limit the arbitrariness of the decisions of own and third parties.
In a certain sense, institutions limit individual freedom, whether we define it in a positive way -as the faculty to exercise its own free will in a legitimate way- or negative -like the absence of coercion to exercise one’s free will. However, for the definition of freedom as absence of domination or absence of arbitrary coercion (similar to that coined by Quentin Skinner), institutions cease to be limiting of individual freedom to be functioning as the abstract devices that make it possible.
An institution is made up of a set of rules that not only limits the action of the rational agent and the action of a third party, but also limits, fundamentally, the actions of the political authority. The said procedural due process, for example, belong to the category of institutions that limit governmental action: no one can be punished except by a judgment based on a law prior to the fact of the process and dictated by its natural judges. The due process is not exhausted in this formulation, but this already constitutes in itself a strong restriction to the power of the government over the citizens. These limits make foreseeable the actions of the government that can interfere in the free will of the individuals and, therefore, define their spheres of autonomy.
Of course, although an institution by itself provides stability and predictability to the system and this generates dividends in terms of the coordination of expectations and individual plans, not all institutions are equally efficient if the mentioned predictability is taken as an evaluation parameter. A system of multiple castes, for example, depends on numerous but ambiguous indicators for the identification of each individual, necessary for the purpose of determining what rights and obligations that person owns. In contrast, a modern system, at the other end of the arch, which equates, with the exception of certain political rights, citizens with inhabitants, and agrees equal rights and obligations for anyone who proves distinctive features of humanity, drastically reduces the “transaction costs” of a system of social control structured around abstract institutions.
The summum of arbitrariness can be identified in despotic systems, in which the free will of the ruler or the group of rulers finds no abstract limit in the law -only concrete limits of other more powerful ones. In these systems, the rules are mere orders to the subjects that have a changing and unpredictable content. In any case, if there are positive laws, we are not facing the rule of law, but government through law. When a case of such extreme arbitrariness is exercised from one man to another, we call it slavery or, in the best of cases, servitude.
At the other pole of the arch we have, as has been pointed out, the modern system, which recognizes in each individual the inalienable right to exercise his free will within a sphere of autonomy that is equal for all. Thus, in a system of isonomy, knowing the limits of the sphere of autonomy itself, the limits of the spheres of autonomy of the third parties are known and, consequently, each individual can form expectations regarding a range of expected behavior of his fellows. They will have a high degree of certainty, as will their respective plans.
In the middle of the two poles of these two ideal types of legal-political systems we have the range of possible and specifically given societies, in which freedom as absence of arbitrary coercion (in the meanings given by both Skinner and Hayek) verify to a greater or lesser extent. What Daron Acemoglu & James Robinson do in this regard, is to open two axes of institutional analysis: the political and the economic, and in turn introduce the distinction between extractive and inclusive institutions. Extractive institutions would be halfway between despotism and isonomy: there are limiting rules of free will, but they are not equal for all, fundamentally restricting the right to access certain prerogatives: limitations on access to food, of political decisions or legal monopolies, to cite examples.
It is worth remembering that the birth of individual rights took place, primitively, as prerogatives that the powerful took from the despot. Such is the case of the Magna Carta of 1215. That is why it is said that rights do not pre-exist the individual but that they are conquered. These prerogatives that were pulling the sovereigns one by one and that is why there is no talk of “liberty” in the singular, but of “liberties”: of trade, of industry, of speech, of transit, etc. These prerogatives or liberties were initially torn from the ruler by militarily or financially powerful men and then extended to the rest of the inhabitants, to the point of recognizing their ownership every human being. Correlatively, by virtue of this process of institutionalization, in which each new prerogative was taken from the ruler, this implied a new limit to governmental power, so that the political system was evolving from tyranny to a constitutional system.
Following the course of this evolution, Acemoglu & Robinson work with the ideal substitute types of “failed state” and “modern state,” the complementary ideal types of “political institutions” and “economic institutions” and again with ideal substitute types of “extractive institutions” and “inclusive institutions.” Political democracy, with a plurality of voices and the extension of political rights, as to elect and be elected to public office, means the realization of inclusive political institutions. An economy that enjoys of sound money, a balanced public budget, openness to international trade, free access to markets, absence of legal monopolies and regulation of natural monopolies is the example of what inclusive economic institutions mean. For all this, we need a degree of political centralization crystallized in the modern state, which enforces the law, whose prescriptions must establish a public sphere whose administration the rulers must be accountable of.
Obviously, the analytical instruments of Acemoglu & Robinson are useful both in political and economic liberalism and, although they do not make a total use of almost three centuries of doctrinal and philosophical elaborations, their classification system is susceptible of being deepened by the incorporation of such concepts. For example, on the end of Why Nations Fail, the authors are at the crossroads of answering the question that serves as the title for the work. For this, they allude to the fact that certain critical situations cause a country to take one or another path: the development of inclusive political and economic institutions or the fate of stagnation, but that there is no such thing as a general law of history that determines that one or the other path will be taken forcibly at some specific historical moment.
This is how the authors invoke, timidly and tangentially, the current of cultural evolutionism, according to which the social customs and habits are evolving following the changes in environmental conditions, but without having a predetermined course, following an evolutionary drift. In the same way, they could have explained the institutionalization that the emerging state implies a modern state through the names and procedural principles that are previously in the uses and customs that make up private law. This is how Max Weber explained it and such studies can be used to delve into the historical analyzes formulated by Acemoglu & Robinson when answering why countries fail.
Notwithstanding this, these economists do establish certain patterns of institutional evolution that are apt to be applied when designing public policies or, plain and simple, a government program. In this sense, they allude to cases such as those of Argentina in the late nineteenth and early twentieth centuries, which had a resounding success at the moment of formal institutionalization through the enactment of a written constitution and the establishment of a central government of a federal nature. As explained by Acemoglu & Robinson, Argentina incorporated inclusive economic institutions, while it was slower to leave behind extractive political institutions. Initially, Argentina was strongly benefited by the “catch up” regarding the degree of progress of its economic partners, mainly England.
However, following these evolutionary patterns, sooner or later a crucial point is reached in which, in order for the economy to continue to progress, higher levels of competition must be developed that make it necessary to tolerate the impact of the so-called “creative destruction.” When the political system is extractive, it is much easier to resist innovation in the economic sphere when it threatens their economic rents. Arriving at that stage, there are the conditions given for the economic and political progress of a country to be reverted to extractive economic institutions.
That is to say, with inclusive institutions, both politically and economically, it becomes more difficult to find shortcuts to the sectors threatened by the creative destruction of all innovation that progress brings, in order to neutralize it. Once the regulatory, interventionist and protectionist apparatus that characterizes the extractive economic institutions is assembled, the contest moves to the political level: whoever has the springs of political power will distribute the benefits of the economic system. If we add to this a polarized society, it is not difficult to explain why the alternation of popular governments emerged from popular democracies and military civic coups. Specifically, in the case of Argentina, Acemoglu & Robinson add the factor of justice: for a country to be involved in such a spiral of institutional involution, it was necessary for justice to lose its independence from political power.
Bruno (responding to this and your previous linked post), I’m delighted to be assured that Bolsonaro is not a homophobe, misogynist, a racist or a fascist (an absurdly over used term anyway). However, you offer no evidence to counter the impression that Bolsanaro has leanings in these directions in the Anglophone media, and not just the left-wing media.
Can you deal more precisely with some well known claims about Bolsanoro: he has praised at least one military officer who was a notorious torturer under the last dictatorship, he has praised the dictatorship. I’ve just checked your previous contributions on Brazilian politics and you seem to be in favour of the dictatorship as a agent of struggle against Marxism. I agree that marxism is a bad thing, but it’s not clear to me that means supporting rightist dictatorship.
You say that Bolsanaro understands the need for ‘order’ in Brazilian society. I’m sure we can all agree that Brazil would benefit from more rule of law, but calling for ‘order’ has a rather unpleasant ring to it. The ‘party of order’ has rarely been good for liberty. Can you identify some restrictions on liberty in Brazil that Bolsanaro would remove? Don’t you think there is the slightest risk his attitude to ‘order’ might lead the police to act with more violence? Do you deny that the police sometimes act with excessive violence in Brazil? Do you have any expectation that Bolsanaro will do anything to resolve this or the evident failings of the judicial system?
Do you deny that Bolsanaro said he would prefer his son to be gay rather than die? Don’t you think this gives gays good reason to fear Bolsanaro? I have had a message from a gay American friend who says he is afraid of what will happen and may have to flee the country? Do you understand and care why he is afraid? Do you have any words I can pass onto my friend to reassure him? Preferably not angry words about Gramsci, ‘cultural Marxism’ and ‘gender theory’. Could you actually explain what this ‘gender theory’ in schools is that it i so terrible and apparently justifies Bolsanaro’s crude language? Do you deny that he said a congress woman was too ugly to rape? Can you explain how someone can be fit to hold the highest office in Brazil who makes such a comment?
It’s nice of course that Bolsanaro says now he is favour of free market economics, but isn’t he now back pedalling on this and promising to preserve PT ‘reforms’? Exactly what free market policies do you expect him to introduce and what do you think about the rowing back even before he is in office? Could you say more about which parties and personalities represent classical liberalism now in Congress? If Lula and other leftist politicians (who of course I don’t support at all) have used worse language than Bolsonaro, could you please give examples?
On more theoretical matters
‘Cultural marxism’ to my mind is not an excuse for Bolsanaro’s words and behaviour, or what I know about them. Your account of cultural Marxism anyway strikes me as fuzzy. I very much doubt that Gramsci would recognise himself amongst current ‘cultural Marxists’ and the topics that concern them. I can assure you that a lot of people labelled ‘cultural Marxists’ would not recognise themselves as Marxist or as followers of Marcuse or Gramsci.
The politics of Michel Foucault are a rather complicated and controversial matter but lumping him with some Marxist bloc is hopeless. This isn’t the place to say much about Foucault, but try reading say: *Fearless Speech*, *Society Must Be Defended*, or *Birth of Biopolitics* then see if you think that Foucault belongs with some Marxist or cultural Marxist bloc. The claim that relativism about truth is something to do with Marxism and the anti-liberal left is absurd, all kinds of people with all kinds of politics have had all kinds of views about the status of truth over history. Jürgen Habermas who is an Enlightenment universalist is an influence on the intellectual left, as is Noam Chomsky, a belief in innate knowledge in the form of the universal grammar of languages and associated logical capacity.
Conservatism has often resorted to relativism about the unique values of different countries. Do you think the ancient Sceptics and Sophists have something to do with cultural Marxism? You are referring to these phenomena in a series of familiar talking points from conservative pundits which do not make sense when applied to rather disparate people with different kinds of leftism, of course I have criticisms of them but different kinds of criticisms respecting differences between groups, in which I try to understand their arguments and recognise that sometimes they have arguments worth taking seriously, not a series of angry talking points.
I look forward to being educated by your reply. Please do give us detail and write at length. I write at length, so does Jacques, so there is no reason why you should not.
Again, Barry’s arguments are a good indication of how many in the libertarian movement, worldwide, view Bolsonaro (and others like him, such as Trump), but, while I eagerly await Bruno’s thoughts on Barry’s questions, I have my own to add:
Bolosonaro got 55% of the vote in Brazil. How long can leftists continue to keep calling him a “fascist” or on the “far-right” of the Brazilian political spectrum, especially given Brazil’s cultural and intellectual diversity? Leftists are, by and large, liars. They lie to themselves and to others, and maybe Bruno’s excitement over Bolsonaro’s popularity has more to do with the cultural rebuke of leftist politics in Brazil than to Bolsonaro himself; he’s well-aware, after all, that Brazil’s problems run deeper than socialism.
Bolsonaro’s vulgar, dangerous language might be entertaining, and Brazil’s rebuke of socialist politics is surely encouraging, but it can be easy to “take your eye off the ball,” as we say in the States. Brazil has a long way to go, especially if, like me, you think Brazilians have elected yet another father figure rather than a president tasked with running the executive branch of the federal government.
This is a very rough work in progress continuing on from my recent post on ‘Law, Judgement, Republicanism’.
The problems with a free and open political and judicial culture were diagnosed by Max Weber in his discussion of bureaucracy, which itself draws directly and indirectly on various accounts of the problems of bureaucratisation and administration of the social world (which itself began in the 18th century, at least in terms of explicit discussion of bureaucracy). Wilhelm von Humboldt’s comments on bureaucracy in Limits of State Action is, as far as I can see, the first clear instance. Before that, the closest precedents are, I believe, in comments on the rigidity of Roman law in Montesquieu, which may have been at least in part against the laws and legal institutions of France in his own time.
Bureaucratisation and an administered world can themselves be seen as resting on the necessity of an integrated, hierarchical, rigid, and institutionalised legal system of a ‘Roman’ model, which is true even when thinking of ‘common law’ jurisdiction in England and its off-shoots (England, not Britain, because Scotland has its own more Roman system, and differences between English and Scottish legal institutions survived political union). This process, described in various ways by Weber, Schmitt and Foucault, Austrian school liberals and Frankfurt School Marxists, also rested on the simultaneous formation of commercial society and national economy described by Arendt. Arendt’s account is particularly enriched by comparison with Foucault on the emergence of the art of government.
The consequences of these legal, administrative, governmental, and economic processes is that the political sphere is deprived of content as a means for addressing the community as a community of judging, reflective individuals. Politics becomes competition for control of administration and the distribution of economic benefits that come with with this control. The political world is influenced by a drive to the kind of homogenisation favoured by the world of administration and positive law, which turns into struggles about identity and ‘political correctness’. That is, the struggle to define the dominant identity, with claims to a pluralist position still governed by the wish to establish the dominating identity as more tolerant (which can happen in a ‘progressive’ manner), as in a community seen as a community of communities or a ‘conservative’ manner, where there are distinct communities tied to nations or possibly non-interacting historical communities within nations.
Arendt suggests a perspective aristocratic contest in politics taken from Greek antiquity, particularly Athens, as the antidote to the above. Foucault also has a perspective taken from Greek antiquity, of care of the self, which can also be understood as aesthetic techne, in which our capacity for self-affection is developed in self-creation and recreation, though not as a purely aesthetic play. Machiavelli was in some respects the advocate of the modern integrated state, of sovereignty concentrated in an individual who integrates society through the power of his political skill and creation of a dominating rhetoric or symbolism. In Machiavelli, though, we can also see much that comes from Ancient republicanism filtered through the republicanism of the late medieval city states of northern Italy.
There is not just the remnants of ancient republicanism but its transformation in a world where the state is increasingly invested in territorial control, distinct from the personalised nature of the state as understood before (either in the person of the monarch or the persons making up a republic). The ‘cynicism’ of Machiavelli has its starting point in Aristotle’s Rhetoric, where reason is applied to speech in public places, particularly the courts of law and the political assembly. Though Aristotle distinguishes between the rhetoric of courts and assemblies, he does show a commitment to the idea that they belong to a common world of persuasive speech. Rhetoric appeals to the less deductive parts of human judgement, even the parts of human judgement which come from immediate emotional reactions, but never just that.
The prince who is human and animal, moral and self interested, is also the strong lion and the cunning fox, within his animal self. There is a sense of the total possibility: symbolism and self invention of individuals engaged in the political world. The judicial connection with politics and the social world for whom law is in some sense dead, an accumulated wisdom from the ancients now codified and open to commentary, but not part of political life except in the administrative and governmental roles that Machiavelli himself had for a while on the basis of his legal training, mingled with humanistic (Latinate and literary) education.
Even so, we can see some ideas lingering in Machiavelli of the importance of law in political life, so that it is the ‘parlements’, partly independent and locally representative law courts, of France which gives its monarchy some of the liberty of a republic. In The Prince it is the case that the energy of the people defending its state and its liberties, where they have some history, outweighs the power of the princely ruler, so that classical Polybian republicanism of the Discourses is never completely absent from The Prince.
Most significantly, Machiavelli leaves a legacy which can be seen behind the 20th century attempts to find an alternative to an administered social world. There is the charismatic leader in Weber, the agonistic aspects of politics in Arendt, and the ethics of self-creation and transformation of the self in Foucault. The charismatic leader in Weber should not be understood as a dictator or a person above politics, but as the way in which legally and formally constrained politics can still engage with the social world and the free judgements of individuals. The agonistic politics in Arendt is not just nostalgia for Athens, but an account of what it is to have individual goals and public awareness in a political community. Ethics in Foucault is not just self-creation out of nothing or a non-political playfulness, it is about how we can have free judgement in politics and law. The glory the prince seeks in Machiavelli, and by the citizens of a republic, is a way of seeing that politics combines autonomy and prestige as driving forces in a historically located and contingent political community. Machiavelli anticipates the ways that Arendt understands political freedom to be related to a Homeric culture of seeking fame in public life.
In the last post, I gave some historical background on how the Ottoman state, whether in reformist or repressive mode (or some combination of the two), was on a road, at least from the early nineteenth century, that was very likely to end in a nation-state for the Turks of Anatolia and the Balkan region of Thrace, which forms a hinterland in its eastern part for the part of Istanbul on the Balkan side of the Bosphorus. Despite the centuries of the Ottoman dynasty (the founder Othman was born in 1299 and this is usually taken as the starting point of the Ottoman state, though obviously there was no such thing when Othman was born), it was also an increasing possibility that the nation-state would be a republic on the French model.
The obvious alternative being a style of monarchism mixing populism and (rather constructed) tradition, born out of a national movement and accommodating the idea of a popular will represented by the monarch, mixed in varying degrees with constitutional and representative institutions. The clearest example of this style is maybe Serbia, to which can be added Montenegro, Bulgaria, Romania and Greece. The older monarchies of imperial Germany and Russia incorporated elements of populist-national monarchy. The Austro-Hungarian Empire, as the Habsburg empire based in Vienna for many centuries became known in 1867, was the Empire most lacking in a core and not surprisingly suffered the most complete disintegration after World War One (that great killer of Empires).
France was the exception in Europe as a republic, particularly as a unitary republic, and was only continuously a republic from 1870. In 1870, Switzerland was the only other republic, but known as the Swiss Confederation, with strong powers for the constituent cantons. The example of French republicanism was still supremely important because of the transformative nature of the 1789 French Revolution, and the ways its development became central events in European history. Part of that came out of the preceding status of France as the premier European nation and the biggest cultural force of the continent. Educated Ottomans were readers of French, and Ottoman political exiles were often in Paris.
High level education often meant studying in Paris. This had such a big influence on the fine arts, including architecture, that apparently 19th century architecture in Istanbul was more based on French Orientalism than earlier Ottoman architecture. The religious conservatives and neo-Ottomanists in power today, who claim to represent authenticity and escape from western models, in reality promote imitation of these 19th century imports.
Ottoman intellectuals and writers read French and were familiar with the idea of France as intellectual and political leader. There were other influences, including important relations with Imperial Germany, but French influence had a particular status for those aiming for change.
Namık Kemal, the ‘Young Ottoman’ reformer who has some continuing appeal to the moderate political right in Turkey, as demonstrated in the foundation of a Namık Kemal University in Thrace 4 years after the AKP came to power, appearing more moderate conservvative than it does now, translated Montesquieu’s The Spirit of the Laws into Ottoman Turkish (modern Turkish is based on major changes from Ottoman).
The more radical reformers who came to power in 1908 were known as Young Turks, that is Jeunes Turcs, often now written in half-Turkish, half-French style as Jön Türkler. The more radical reformers wanted less role for Islam in public life and at the most radical end even regarded Islam as responsible for backwardness. French laicism was therefore a natural pole of attraction, as were the ways nationalism and republicanism came together in the French revolutionary legacy as an expression of the sovereignty of the people.
The Ottomans studying in France were strong influenced by the sociology of Emile Durkheim, who is usually counted as one of the three founders of the discipline of sociology, along with Karl Marx and Max Weber. Durkheim’s social thought was very influenced by an understanding of Montesquieu and Jean-Jacques Rousseau as precursors of sociology. This partly reflects the social analysis they engaged in, but also their idea of how a society is constituted legally and politically, particularly Rousseau’s theory of the social contract. Durkheim’s social thought is permeated by concerns with what kind of social solidarity there can be in modern societies in ways which build on the long history of republican thinking about a community of citizens. This was very important in the late Ottoman and early republican period.
Max Weber was also a major influence. His ideas about disenchantment (a version of secularisation) and the role of the nation-state were of definite interest to Turkish thinkers inclined towards republicanism, nationalism, and secularism. One of the consequences of this is that criticisms of the Turkish republican tradition, as it passed through Kemal Atatürk (‘Kemalism’), are tied up with criticisms of Weber. Some of this Turkish absorption of Durkheim and Weber can be found in English in the work of Ziya Gökalp (1876-1924) and Niyazi Berkes (1908-1988).
It is also worth finding Atatürk’s Great Speech of 1927 (a book length text read out over several days), which is a political intervention not a discussion of social theory, but does show how ideas connected with social theory enter political discourse in Turkey. It is very widely distributed in Turkey, I’ve even seen it on sale in Turkish supermarkets; and it has been translated into English. Berkes is the social scientist and has a rather more academic way of writing than Gökalp (a famously ambiguous thinker) or Atatürk. His The Development of Secularism in Turkey (published in English 1964, while he was working at McGill University in Montreal) must be the single most influential work of social science by a Turk or about Turkey.
Unfortunately a discussion of republicanism in relation to Durkheim, Weber, or any other major thinkers declined after the 1920s and Berkes is really the last great flowering of this tradition in Turkey. This is part of the story of how Turkish republicanism as a mode of thinking declined into defensive gestures and the repetition of dogmas, so is also the history of how extremely superficial gestures towards liberalism by leaders of the Turkish right had undue influence over the more liberal parts of Turkish thinking.
The weakness of thought about republicanism and the superficial absorption of liberalism was the main thread on the intellectual side leading to the disaster of Erdoğan-AKP rule. The rise of AKP was welcomed by many (I suspect most, but I don’t know any ways in which this has been quantified) Turkish liberals until the suppression of the Gezi movement in 2013 and even in some cases until the wave of repression following the coup attempt of 2016.
To be continued
The problem with Brazil is not Luis Inacio Lula da Silva. It’s not the Worker’s Party. It’s not Socialism.
Certainly one of the most important politicians in Brazilian History was Getulio Vargas. Vargas came to power in a coup (that symptomatically most Brazilian historians call a revolution) in 1930. He ended up staying in power, without ever being elected by popular vote, until 1945. Then he peacefully resigned, not without electing his chosen successor, Eurico Gaspar Dutra. Vargas came back to power immediately after Dutra, and committed suicide while in office. Almost all Brazilian presidents from 1945 to 1964 were from Vargas’ close circle.
Brazilians to this day are still taught that Vargas was a hero, persecuted by an evil opposition. Initially, Vargas was some kind of Brazilian positivist. He was anti-liberal because liberalism is weak and slow. We need a strong technical government, able to identify problems and come with solutions fast. However, while in office, he became “the father of the poor,” a defensor of the lower classes. Nothing could be farther from the truth, of course, but that’s how Vargas is remembered by many.
One of my favorite interpretation of Brazil comes from Sergio Buarque de Holanda. According to Holanda, the problem with Brazil is that Brazilians are cordial. What he means by that is this: using Weber’s models of authority, he identified that Brazilians were never able to support a Legal-Rational authority. Vargas was seen as “a father.” not a president. The country is seen as a big family. Lula used a very similar vocabulary and tried to reenact Vargas’ populism.
As I mentioned, Holanda’s interpretation is Weberian. Weber’s most famous book is The Protestant Ethic and the Spirit of Capitalism. The problem with Brazil is that it never went through a protestant reformation. And because of that, it never developed the “spirit of capitalism” that Weber describes. Brazil is still, to a great degree, stuck with traditional and charismatic forms of authority.
To be sure, Brazil has many features of a modern liberal state. Since late 18th century Portugal tried to copy these from more advanced nations, especially England. Brazil followed suit. But you can’t have the accidents without the substance. Unless Brazil actually goes through a transformation in its soul, it will never become the modern liberal state many want it to be. Quoting Domingo Faustino Sarmiento, “An ignorant people will always choose Rosas.”
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.