- One nation’s heroes are another’s war criminals (statues) Clare Mulley, Spectator
- Unraveling the mindset of victimhood Scott Kaufman, Scientific American
- The rage machine comes to St. Louis Jerry Taylor, Niskanen Center
- Morals, politics, and evolutionary drift Federico Sosa Valle, NOL
- The Protestant Reformation and freedom of conscience Bruno Gonçalves Rosi, NOL
- The Counterfactual and the Factual Mark Koyama, NOL
- The Protestant Reformation and freedom of conscience II Bruno Gonçalves Rosi, NOL
- Freedom of Conscience and the Rule of Law Federico Sosa Valle, NOL
- Can you be confident about an economy you can’t see? Frances Woolley, WCI
- When rules don’t apply Chris Dillow, Stumbling & Mumbling
- Show me your books… Henry Farrell, Crooked Timber
- America’s first Tiger King Nathaniel Rich, NYRB
In the year 2020, occidental democracies face a time of lock-downs, social distancing, and a sort of central planning based on epidemiological models fueled by testing methodologies. An almost uniform consensus on the policy of “flattening the curve and raising the line” spread worldwide, both in the realms of politics and science. Since the said public policy is not for free, but nevertheless it is out of discussion, the majority of the efforts are focused on gathering data concerning the rate of infection and fatalities and on achieving accurate and fast methods of early detection of the disease (COVID-19). The more the data is collected, the more efficient the policy of “flattening the curve” will be, i.e.: minimizing the economical costs. Technology -in a broad sense- seems to be the key ingredient of every successful policy.
Nevertheless, since the countries that undertook the said task are democracies -and they were urged to do so because they are democracies-, there is a lot more than data provided by technology to take into account. Science and technology could reach a conclusive study about infection and fatality rates, but the outcomes of the societal discussions about the value of life and the right of every individual to decide upon the way of conducting their own plans of life will always remain inconclusive. Those discussions are not only philosophical and, fundamentally, are not only to be conducted in the terms of an academic research, since the values at stake entitle every human being to have their own say and, at the same time, are so deeply rooted in the upbringing of the individuals that seldom they might be successfully articulated -and surely that is why such questions are of philosophical interest.
In the race to determine the political agenda, technology plays with a significant advantage over philosophy: in times of emergency, conclusive assertions -despite proving right or wrong afterwards- enable political leaders with a sense of determination that any philosophy can hardly achieve. It is true that philosophical considerations mark the legitimate limits of science and its uses, but the predictable models and plausible scenarios depicted by the technology might lift the barriers of what had been considered at the time as politically illegitimate, i.e.: to describe a given situation as a state of exception.
However, there is still a dominion in which philosophical considerations might have high expectations of winning the competition against technology: the making of the abstract criteria to judge the fulfillment of the due procedures to be followed by the authorities given the account of the data gathered by the technology. Such philosophical considerations on which base authorities should personally account for their decisions, despite having been discussed by academics and writers, have being treated for centuries in particular legal procedures that crystallized the standards of conduct of the Civil Law (the diligence of a good father of a family, or of a good businessman, etc) or Common Law concepts (the reasonable person, the ordinary prudent man of business) or more recent -in terms of the evolution of the law- formulae, such as the Hand’s rule.
Such legal standards, concepts or formulae do not oblige the political authorities in their public sphere, but they perform as an incentive to be taken into account by the agent who is invested with the public authority; since he, eventually, will be personally accountable for his decisions. Moreover, those legal parameters to judge the personal responsibility of the agent in charge of the political authority are a true guarantee for the public servants, more reliable than the changing public opinion measurements to be provided by the technology.
Notwithstanding the Realist assertion about the division between law and politics might earn certain relevance in times of turmoil, individual rights and legal procedures should endure in the long run, in order to work as a benchmark to judge the personal performance of the political agents.
Such times of political and social upheaval are useful to test political theories and doctrines as well. Certain strains of Political Liberalism -particularly Classical Liberalism- have been largely criticized for -supposedly- trying to replace the political with the law. However, the law is there to remind the political agents that the state is an abstraction run by individuals who are expected to be personally accountable for their decisions. In this case, the true function of the law, although conceding that it should remain outside of the political sphere, is to provide the correct incentives for the political agents, who are not mere abstractions -and so, maximize their own plans- to take their own decisions. If technological devices might be the key instruments for public policy, the rule of law is its inescapable framework -or at least so it is, of course, for every democracy.
I haven’t written for a while – other duties get in the way – but I’d like to suggest this reading list in Philosophy, Politics, and Economics for the present time of crisis and perplexity. The main reason is that everyone seems to be an expert in Economics, Epidemiology, and Political Philosophy these days, assuming that from “facts” we can easily derive “values” and answer the question, “what is to be done?” I think this is at best a naïve attitude and at worst the same rationalistic hubris we experience everytime a political issue is simplified and reduced to a matter of “science”. Yes, there are facts and they shouldn’t be ignored, but it’s not easy to decide what is to be done, morally and politically, in light of those facts.
The first item on the list is Leviathan by Thomas Hobbes. A classic, and a reminder that people choose all the time to sacrifice some degree of liberty in the altar of survival (or a chance to survive), but also a reminder that Leviathan may turn from friend to foe, from protector to persecutor – and there is very little we can do about it. The second item is John Locke’s Second Treatise of Government, which then explores this topic in light of the fact that civil government shouldn’t have absolute power. It makes an attempt to show us how that power can, or should, be limited within a certain sphere of responsibility. Though it’s still there to protect us.
In this time of pandemic, people feel tempted to panic. People and politicians are calling for dramatic measures, and one reason is that the use of government coercion – which, according to Locke, ought to be limited – might be necessary to force people to cooperate, for example, by staying home. This is a proposed solution to the dilemmas of collective action posed by the problem that some may “free-ride” on the rest, and, as a result, the disease will keep spreading, frustrating any attempt to slow it down. Against dramatic, desperate and, perhaps, arrogant, use of political power, and in favor of prudence and wisdom, Edmund Burke’s collection of writings from the period of the French Revolution can be a beacon of light. On the other hand, explaining the dilemmas of collective action and suggesting ways of solving them, Mancur Olson offers an insightful look at incentives and group behavior in The Logic of Collective Action.
However, the idea that government coercion is the only solution to dilemmas of collective action (such as imposing a quarantine, for example) doesn’t hold water. In fact, other economists follow Olson in saying the problem is real and challenges a strict individualist way of thinking, but, adding to Olson’s point, they also acknowledge the role of private action and sanctions in fostering cooperation. Elinor Ostrom’s Governing the Commons is a wonderful study that opens up a number of possibilities for private enforcing of collective action to preserve and promote the frugal allocation of common goods. This can be complemented by The Quest for Community, an overlooked work by sociologist Robert Nisbet, where it becomes clear that, between individuals, the state, and the market, there’s room for other associations and communities that strengthen civil society – particularly in this challenging time. Nisbet’s lesson invites liberty-loving people to reflect on whether a hyper-individualistic view of the world ends up pitting helpess individuals against Leviathan instead of offering the buffer zone of community in between. This is something Alexis de Tocqueville discussed in the 19th century.
And just for the sake of dealing with the issue that “is” doesn’t easily lead to “ought”, and that science might have facts and an explanation for them, but does not easily conduce to a proper discussion on values policy, I must finish this PPE pandemic reading list with F. A. Hayek’s The Constitution of Liberty. On Chapter 4, for example, Hayek introduces a constrast between “rationalist liberalism” and “anti-rationalist liberalism”. Rationalist liberals assume too easily that knowledge of the facts on the ground will give them what they need to re-design a society governed by reason. Hayek warns us against this technocratic assumption and offers a defence of “anti-rationalist liberalism”. Anti-rationalist liberals understand the importance of spontaneous order and of constraining power (even at a time of crisis) while prudently balancing the values of liberty and safety in light of past experience and tradition.
Three Additional readings:
Buzan, Waever and De Wilde, Security: A New Framework for Analysis (1997). In a liberal democracy, the state steps in suspending some civil liberties only if it can persuade citizens that there’s a threat that justifies it. This book offers a framework to interpret how such threats are constructed in official and non-official discourse, and to what extent this construction of a threat can be effective.
Robert Higgs, Crisis and Leviathan (2013). 25th anniversary edition. Looks at US history and how government employed crises to its advantage and the advantage of the ruling elites. In particular, security and economy related issues are dealt with.
Sanford Ikeda, Dynamics of the Mixed Economy (2002). Shows that a time of crisis might be a time for further interventionism in the economy, as Higgs (see above) suggests, but might also be a time for disintervention, as seems to be the case with part of the agenda today (FDA deregulation, etc.) This is based on Ludwig von Mises’ view that interventionist economies are not very stable and are always swinging as a pendulum between socialism and capitalism.
- Artists for hire: the forgotten masters of the British East India Company Peter Parker (wait, what?), Literary Review
- Lenin, capitalists, rope Scott Sumner, MoneyIllusion
- Barriers to cognitive diversity Chris Dillow, Stumbling & Mumbling
- How the Saudi-Iran rivalry has unravelled the Middle East Toby Matthiesen, Financial Times
- Excellent analysis of Trump’s impeachment and acquittal Greg Weiner, Law & Liberty
- Chinese encounters with the rest of the world Henrietta Harrison, TLS
- “Moctezuma’s empire has fallen, but so too has the Spanish.” Ben Ehrenreich, Guardian
- Boundary conditions for emergent complexity Nick Nielsen, Grand Strategy Annex
Is civil disobedience justified when it invokes a moral objection to target a law that has been enacted through a legitimate process? The reason societies seek to establish a legitimate process in law making is because they want to set up common rules and norms which people who disagree with them will still have to abide by. However, history shows us many instances in which, even in a democratic system, civil disobedience both triggered and animated a debate on legitimately enacted rules and, often, led to their revision as well as the reform of the procedural rules that allowed their enactment in the first place.
Rawls’ position on civil disobedience struggles with this question. His position is that, once society has set up principles of justice in an institutional setting, acts of civil disobedience are just insofar as they appeal to the sense of justice of the majority and should be willing to bear the consequences of their actions. We may read the Rawlsian perspective as follows: these acts are still of value because they re-launch a process of public reasoning regarding the law itself.
However, the implications from this statement are broader and baffling. First, we don’t know how far this revision can go. Will it be allowed to cast doubt on the basic principles of justice which society previously agreed to observe? Can it challenge the procedural source of legitimacy for the contested norms?
Second, civic disobedience cannot be reduced to appeals to a sense of justice demanding the revision of law through the same process. Instead, the rationale behind civil disobedience reminds us that there will always be competing conceptions of justice that go as far as challenging the source of legitimacy – what some have come to accept as the just process may no longer seen as just by others. A society’s prior decision at a single historical moment that this is a just process for law making does not end the debate over different perceptions of justice concerning both norms and processes.
Moreover, acts of civil disobedience appear in moments in which different moral norms clash and judgment should be passed regarding which one takes precedence over the other. Episodes in the US history, particularly regarding the civil rights of African Americans, epitomize the important role of acts of disobedience in invoking a higher moral ground against norms approved by the majority through the institutions of a democratic system. We have learnt from history that these moments spawned animosities and brought about new episodes of conflict. They were emotionally disturbing episodes.
This implies that social contract theories tend to adopt an a-historical approach to norm-building and a, strangely- a-social view of public reasoning. Norm-building is seen as cleansed of emotions and often dismissive of the idea that there will be unintended and unforeseen consequences. A reduced historical and social conception of justice is what acts of civil disobedience reminds us of. The process of defining justice as norms and as process remains an open turf for never-ending, reflective social interactions that no constitutional moment can capture, crystallise and entrench indefinitely.
These three elements – the historicity and sociability of norms, normative contradiction, and the emotional dimension in the conflict over norms – is manifested in Sophocles’ masterpiece, Antigone. Sophocles’ theatrical play on civil disobedience was written around 441 BC, about 2,400 years before Rawls’s work. It conveys a nuanced message on norms, normative debates, public deliberation and reasoning, and sees the social nature of all as a human tragedy.
The play is set in the aftermath of a civil war in Thebes and the final battle which Thebes survives the attack of seven exiled Theban generals. One of the generals, Polynices, son of King Oedipus, fights his own brother, Eteocles, a defender of the city. In that fight, the two brothers kill each other.
Creon, the legitimate King of Thebes and uncle of the two brothers, issues a public order for Eteocles to be buried with honours and for Polynices to be left outside the walls to rot unburied as punishment for his betrayal. Creon also orders that whoever tries to bury Polynices’s body shall be arrested and executed.
Polynices’s sister, Antigone, defies Creon’s order and secretly buries her brother in accordance with the religious tradition that demands that the dead must be buried. Soon after, Antigone gets arrested and is brought by guards before Creon and the city. She chooses not to apologize for her actions or claim ignorance of law. Instead, she confronts Creon by invoking that the law of the gods is superior to the law of men.
Creon sentences her to death, publicly stating that everyone should be treated equally before the law. He would make no exception for her niece. Creon presents himself as a just leader who firmly adheres to ‘equality before the law’ even if that means he would sentence to death one of closest family members. The law, he stresses, is above everyone.
Antigone’s public act with an emotional appeal to the law of gods initially fails to trigger sympathy from the people of Thebes and Creon insists on his sentence. Antigone is taken off stage to be buried alive in a cave.
Creon’s own son and Antigone’s fiancé, Haemon, rushes to defend Antigone but he too fails to convince his father to change his decision. Even against his son, Creon reiterates his conviction that the law takes precedence over personal relations. But gradually the people of Thebes, the chorus of the play, changes its stance and starts showing more sympathy to Antigone’s drama.
In the next scene, a respected prophet named Tiresias makes a public interference. He tells Creon and the city that their neglect of the moral law will displease the gods and will bring more sorrow and pain to Creon’s family and the city of Thebes. The leader of the chorus changes his mind and asks Creon to reconsider his decision and set Antigone free. We are witnessing here that public is changing its views following a morally charged debate triggered by an act of civil disobedience. Antigone disobeyed the law guided by her love for her brother, but she was also honouring the law of the gods. Creon decides to spare Antigone. Emotions and fears have a drastic effect on public perceptions political decision making.
But Creon’s decision came too late. Antigone committed suicide. So did Haemon and, following the news of his death, her mother and Creon’s wife, Eurydice. The play ends with Creon devastated, isolated, discredited and vulnerable, and the city of Thebes descending back into chaos.
Rather than a clear clash between a hero and a villain, the two protagonists are tragic figures and so is the city itself. Creon wants to demonstrate that he is a prudent ruler who obeys the law that he rightfully sets. But he has to listen to the people he commands. His confrontation with Antigone is his own public act in which he defends his decision. The chorus, representing the people, initially sides with Creon but turns against him after observing a human drama unfolding and after hearing the menacing words of a prophet about the incoming doom. Perceptions of justice are drastically reshaped through an interplay of feelings, reasons and fears. Deliberation is emotionally charged.
Unlike Rawls, Sophocles’ theatrical play presents us with a richer blend of public reasoning, emotions, emotive responses, and unforeseen and unintended consequences in a debate over clashing norms and perceptions of justice. Creon – the personification of equal rules for everyone including his own relatives – is the legitimate political authority but his decision creates a personal and civic catastrophe. Thebes descends into a spiral of death and civil unrest. A just act of disobedience triggers a spiral of turmoil and tragedy. Emotions and personal affections guide decisions that produce unforeseen dramatic developments for the protagonists and the city as a whole.
The Greek drama is purposefully presented as a morally inconclusive story. Antigone had no initial intentions to make her actions a public statement and did not wish to bring down the entire political system. But after her arrest she did make a dramatic public defence of her stance invoking the moral law. Creon was surprised and angered, torn between his adherence to the rule of law and his duty towards his family. The Theban public watches all this astounded, emotional and anxious. This is far from a society that can be equilibrated into an orderly state. It cannot even rest secure about its own convictions.
Sophocles grasped much of what political theory tends to shy away from: the complexity and ambiguity surrounding normative thinking in human societies that tends to bring about tragic or fatal results for every system of norms shaken by its own contradictions. In short, Sophocles lyrically presents us the tragic irony of norms creation. Rather than taking a nomothetic stance, his play helps us reflect on the tragedy of human interactions from a nearly anthropological viewpoint.
Sophocles allows the audience to pass their own judgment through both logical and emotional engagement. The audience is baffled by the merits of each of the opposing viewpoints – Creon’s defence of formal equality before the law and Antigone’s defence of a higher moral ground. But it is also touched and distraught by how tragic the protagonists are, trapped in the consequences of their own moral standing and reasoning. In Sophocles’ play, society is watching and reflecting on behaviors and norms through pathos, ethos and logos. After each performance, the verdict is a flow of tears rather than a canonical judgment.
- Democracy doesn’t matter to the defenders of ‘economic freedom’ Quinn Slobodian, Guardian
- After the Berlin Wall: whither democracy? Sabine Beppler-Spahl, spiked!
- How Europe stumped Britain’s conservatives Geoffrey Wheatcroft, New Republic
- Don’t forget the one-fifth clause (impeachment, American-style) Eugene Volokh, Volokh Conspiracy
Each of the past few years, about 35,000 Americans died in traffic accidents. This fact should be taken into account when considering recent massacres of civilians. I was wondering if anyone else would be cold hearted enough to go that way. So I waited a few days to comment on the massacres in Gilroy, El Paso, and Dayton, to avoid duplicating others’ commentaries. Plus, I have technical difficulties associated with my current location. Please, comment or wave if you see this.
Of the approximately 35,000 victims about half died in accidents involving alcohol. I will assume, against my thesis, that only 10,000 people each year died indirectly or directly because someone drank too much alcohol and drove.
How to count victims of mass shootings has become – strangely enough- controversial. Nevertheless, I am quite certain that shootings, specifically, of strangers for other than greed, or jealousy, or disappointed love have not caused 10,000 deaths in any of the past few years, not even close.
Do you agree; do you see where I am going?
So drunk drivers kill many more people – about 10,000 annually – than mass shooters. The victims of the ones are just as dead as the victims of the others; the loss and grief associated with the ones must be similar to those associated with the others. The deaths from one cause seem to me to be as meaningless as the deaths from the other. (That’s by contrast with the death of a firefighter in the line of duty, for example.)
A rational collective response should give priority to the avoidance of the many deaths from drunk driving over the much fewer deaths caused by mass assassins. Yet, the public reactions of the left are exactly the reverse of those rational expectations. In part, this inversion of priorities is due to the magnification the media affords mass shootings but not the slow massacre on the roads. In part, it may be due to the sometimes concentrated nature of the death tolls by mass shooting. This explanation, however, has only limited value because the small death toll at the Gilroy Garlic Festival, for example, was given much more publicity than is conceivable for any drunk driving accident with three lethal casualties.
This irrational ordering of priorities is made all the more puzzling by the fact that it would be much easier to reduce the number of deaths from drunk driving than by domestic mass shootings. Two reasons. First, people in jail can’t kill anyone with a car. The second reason is a little more subtle; bear with me.
Drunk drivers fall into two main categories, alcoholics who think they have to drive, and self-indulgent slobs. My intuition is that there are many more of the latter than of the former (especially among the young, who are overrepresented in car accidents) but I don’t have any figures. Self-indulgent slobs are capable of rational calculus. If the relevant punishment is severe enough and certain enough, they will become less self-indulgent. I used to be one of them. When the penalty for drunk driving went from about $100 to several thousand during my lifetime, I discovered that I could take a taxi, or pay a friend to drive me back, or drink at home. The quality of my life declined but it was worth it. It’s likely that my fear of heavy punishment saved someone’s life over the long run.
So, a credible remedial scheme is simple: withdrawal of driver’s license for a long period on the first offense associated with heavy fines for driving without a license. A significant jail term without possibility of parole would punish each subsequent infraction. Again, imprisoned drivers don’t kill anyone through their drunk driving. That’s a valid reason in itself to keep them locked up for a long time. It’s probably also economically reasonable.
So, I wonder why is there not a passionate public outcry on the political left and among its media partners in favor of a nation-wide remedial endeavor of the kind I just described?
Drunk driving kills many more Americans than do criminal mass shootings of the Gilroy, El Paso, and Dayton kind. This, although suppressive remedies to drunk driving are conceptually straightforward. My friend Vernon Bohr pointed out in a comment on Facebook that accidental drownings of children alone claim more lives of all categories of Americans than do mass shootings. There are better priorities.
The indifference of the left to those more important preventable causes of mortality as compared to its display of strong collective emotion with respect to sudden death by shooting seems strange, on the surface. This strong emotion is usually, almost always associated with urgent calls for some sort of federal gun control.
The contrast is made all the more striking by the following legal facts: First, the regulation of behavior that is potentially harmful to others – such as driving automobiles – falls squarely within the purview of state legislatures, primarily, of Congress, secondarily. Number two, driving is nowhere a right, except by default. Possessing weapons, by contrast, is a right explicitly guaranteed by the US Constitution, and twice reaffirmed by the US Supreme Court.
So, why would the considerable emotional and political resources of the left, aptly guided by the mass media, be expanded on the deaths of comparatively few, on a problem that is difficult to understand, one whose resolution would also encounter strong legal obstacles? Why this relentless emphasis when there are obvious, bigger, more rational objects of collective compassion?
I am thinking of two answers. One, the unpredictability of shooting events make them seem more disruptive than the somewhat routinized highway deaths, including by drunk drivers. The logical implication of this explanation is that if mass shootings became more frequent, they would appear more routine, and thus, less disruptive, and less deserving of left-wing attention. Note that there is a long way to go between the few hundred annual casualties by mass killings, and the 10,000 I attribute to drunk driving alone.
Thus, mass shootings garner both attention and emotion – including on the left – precisely because they are comparatively rare. If this were correct, attention and emotion would diminish with an increased frequency of such events. That is not a trend I observe. Others may see it.
Two, the left, and its media component, may focus on mass shootings in preference to making more rational choices, not in spite of the legal obstacles in their path but because of them. In this perspective, the focus on mass shootings may not be an exercise in misguided compassion, but a means to a higher end.
Americans are, on the whole, much attached to their Constitution. Modifying it is an arduous and uncertain task. Shortcuts to this effect are much appreciated. It would be difficult to find a more effective shortcut than the guided emotionalism the left supplies on the occasion of each mass shooting perpetuated by an American who is not also a violent jihadist. The spectacle of perfectly innocent victims, including children, cut down by someone seemingly exercising his constitutional right to bear arms must be the most formidable nonrational argument against that constitutional right. It can be mustered to sidestep collective choices – such as further reductions in deaths by drunk drivers – that would make the most sense from the standpoint of simple compassion. Thus, a one tenth reduction in deaths by drunk driver, and the corresponding shrinking of human misery, would do about twice more good than would the total (total) elimination of mass shootings.
The outburst of emotionalism expertly guided by the media we witnessed following three civilian mass shootings in quick succession is not about compassion, it’s about power. Every reduction in the autonomy of individuals increases the power of government, of those who are in charge of it through legitimate political means, and of the permanent bureaucracy.
Incidentally, I suspect there must be libertarian solutions to the vast and continuing problem of death by drunk driver, solutions that don’t involve putting people in jail. I don’t know what those are. I would like to hear about them.
- On gratitude and immigration Charles Cooke, National Review
- The myth of the welfare queen Bryce Covert, New Republic
- “Why did the Department of Justice cut such a deal?” Ken White, the Atlantic
- When the sun never set Michael Auslin, Claremont Review of Books
However, the law itself has its own endogenous system of production of rules, which operates on the abstract plane of the configuration of the structure of the relationships between its terms, and whose dynamics depends on the negative feedback process implied by the judicial work itself to clarify the words of the law for each specific case to be decided. Both in codified law systems and in customary law systems, the current positive law is clearly defined. The legal systems in which previous judgments oblige judges are even more rigid than codified systems, since in the latter it is enough for the legislature to enact a new code for the positive law to change. On the contrary, the judges must make a hermeneutical effort to modify the doctrine consecrated in a judicial precedent without this constituting an arbitrary ruling.
However, both in coded and customary legal systems, the law, which is always enunciated in express statements, carries with it the phenomenon of the open texture of language. These are not the cases of ambiguity, vagueness, or obscurity of the letter of the law. These latter cases can be solved by the doctrine, composed of scientific works that investigate the debates between the members of the legislative power at the moment of sanctioning the norm whose text carries such problems, or resorting to the normative antecedents of which the current law took its vocabulary.
However, vagueness, obscurity, and ambiguity in the words of the law configure linguistic problems with legal relevance, but not legal ones in themselves. What really matters to study are the cases of open texture of the language of the law, since it is through these cases that the law evolves.
In cases of open texture of language, the anomaly occurs in the universe of events to which the language refers. An obvious example: a constitution written in the 19th century can establish that the President is the Commander-in-Chief of land and sea forces. It would not be necessary to reform its text to incorporate the air force – or even weapons built to act outside Earth’s orbit.
However, the dynamics of legal traffic are mostly made up of less obvious cases in which the open texture of language forces judges to establish the words of the law for the specific case, resorting to a hermeneutic interpretation of the law for which “common sense” is not enough. In customary law these hard cases are those that generate a new precedent that often define what is inside and what is outside the “good legal sense.” The authors disagree among themselves on how to characterize this aspect of judicial work. However, the remarkable thing is that these “difficult cases” generated by the phenomenon of the open texture of the language are what make the law respond autonomously to changes in the conditions of the environment that the same right has as a regular task.
Indeed, Friedrich Hayek states in Law, Legislation and Liberty an attempt to separate law and politics based on the evolution of law according to a process of natural selection of norms. While it expressly recognizes that a legal system can be sanctioned in its entirety by the legislator, it also highlights the ability of legal systems to make an immanent critique of themselves, through the judicial system.
Although Hayek does not analyse the phenomenon of the open texture of language in his work, it does characterize law as a structure of norms that continually readjust to changes in circumstances following a negative feedback process, through successive judicial decisions. In Hayek’s own words, what establishes a legal order is a set of expectations about the behaviour of congeners that will be considered or not according to law. For example, if a party fails to meet its contractual obligations, it can expect the other party to refuse to comply with them and that, if sued, the latter will be supported by the courts. This expectation also works as an incentive to fulfil contracts and reduce litigation.
On the other hand, another feature of legal systems -particularly modern ones- that Hayek highlights is the definition of a range of expectations that will be systematically thwarted. This is what determines a structure for human action and implies the consecration of the principle of closure: everything that is not expressly prohibited is allowed. This allows individuals to form their life plans with the expectation that they will be fulfilled and with the ability to anticipate the behaviour of their peers, since they will be under the same incentive structure. The latter leads to a third characteristic of modern legal systems, which allows them to function as self-regulated systems: the principle of isonomy or of the same law for all. The incentive structure determined by the range of expectations that will be systematically frustrated, in a system that results from the same application for each individual, allows the definition of individual spheres of autonomy, within which each individual has free discretion, but when entering into collision with each other, each one will be able to infer what expectations they can have regarding a possible judicial ruling.
The reverse of this system is the “Administrative State,” by Carl Schmitt, in which only that which is expressly authorized by a decision based on expediency, and the status system of the Ancient Regime, is permitted, that each group had a private legal system or privilege-strictly speaking, our current modern system of rights consists in the extension to all human beings of the liberties or privileges that the nobles had wrested from the kings at the time. Therefore, it is a great risk that the number of regulations is such that the rule becomes that only what is specially expressly regulated can be done, depending on the dynamics of the change of the decision of the authority taken in administrative files, and that such is the segmentation of regulations according to pressure groups and interest groups, that they return to a system of privileges instead of equality before the law.
It is not difficult to find numerous current examples: the public transport system could reach levels of regulation such that it could practically be said that only such activity can be carried out with the express authorization of the public authority to that effect. The alternative is not the absence of regulation, on the contrary, the alternative is the modern State of Law: a set of positive norms, dictated by the competent authority and formulated in general terms. These rules that regulate public transport do not have an abstract content, but rather a concrete one: the set of objectives expressly set by public policy. While the rules of private law have an abstract content, that is, they lack a specific purpose, the rules of public law not only have a specific and specific purpose, but that such purpose must be expressly declared, in such a way that justice they can evaluate whether the willing means disposed by the public authority are related and proportional to the purpose of the rule of public law and, in turn, the citizens consider whether such ends are worth pursuing.
To continue with the exemplification of public transport of passengers and merchandise: there is a sphere that corresponds exclusively to private law. This refers to the rules that attribute legal responsibility between the transporter and the transported: the obligation of the transported to pay the ticket or the freight, the obligation of the transporter to transfer the people and goods without them suffering damages. In this sphere there is no concrete purpose of the norm. It only limits itself to stating the set of expectations that the parties can count on, regardless of who they are specifically and what the specific purpose of the transport is.
Correlatively, the regulation of public transport, which belongs to the orbit of public law, does have certain specific purposes. For example, take care of public safety and ensure an efficient distribution of the cost of accidents. For this purpose, it may provide that public transport companies register, periodically review the status of their units, which must meet certain minimum standards, and establish the obligation to contract civil liability insurance. Anyone who complies with these provisions, for example, could devote himself to the activity of public transport, passengers or merchandise. How many and who will be the transporters is something that the public transport regime should not compete with. The number of carriers will be fixed by the price system. Nevertheless, to the control of public transport must concern that the units that circulate are in good condition, that their drivers are suitable and have an insurance that covers their civil liability, so that the transported does not have to face the cost of accidents before an eventual bankruptcy of the carrier. On the other hand, the system of private law, in a parallel and autonomous way, distributes the responsibilities between the parties, without addressing who is each one.
Jair Bolsonaro has been in government for almost six months now. I believe I can proudly say that I saw this coming before many people: Bolsonaro would be the next president in Brazil. However, he might not be the best person for the job.
In my assessment, Bolsonaro is not the usual politician. As John Mearsheimer brilliantly observed, politicians lie. A lot. It should be a given: dogs bark, cats climb on trees, and politicians lie. Bolsonaro, as far as I can tell, doesn’t. And that might be part of the problem: he always speaks his mind. Nothing is concealed, even when strategy might call for that.
In the past week, Bolsonaro sent an open letter to some of his followers (not written by him) manifesting how hard it is to govern Brazil. The letter sounds like a vent for the president’s frustration: “You Either Die A Hero, Or You Live Long Enough To See Yourself Become The Villain”. But what Bolsonaro means by all that is not clear. For all sorts of reasons, corruption is a living part of Brazilian politics. Actually, of politics in general, just a little more down there. So why the president sounds surprised by that?
Some people in the press speculated that Bolsonaro plans a coup. Call that it is impossible to govern with the current congress and just close it. To be sure, that is not unthinkable, and Brazil has historical precedents for that. But that doesn’t sound like something that Bolsonaro would do. Sounds more like that he is trying to bypass Congress and govern with direct popular support.
Brazilian congress is fabulously corrupt, and Bolsonaro still enjoys great popularity. Maybe he wants to use that to press Congress for the changes Brazil needs. In any case, it is a good opportunity to remember some lessons: power corrupts and absolute power corrupts absolutely. Or, in other words, if men were angels, we wouldn’t need government. And if we were governed by angels, we wouldn’t need checks and balances. But we are not governed by angels. Therefore, checks and balances are necessary. The downside is that this makes the government slow when important changes are necessary. The temptation is to close democratic institutions and just do things the old fashion way: through a dictatorship. I don’t think that is where Brazil is going right now. But it’s important to remember that we need way more than a president. We need people who really understand and appreciate freedom. An uneducated people on these matters will always grow impatient and vote for an easy solution.