- The example of Charles Krauthammer Henry Farrell, Crooked Timber
- Turkey tries to legitimize incursion in northern Iraq Adnan Abu Zeed, Al-Monitor
- Why America won’t declare war Matthew Fay, Niskanen Center
- Stare Decisis and judge-made law Will Baude, Volokh Conspiracy
rule of law
RCH: the Cherokee Nation and the US Civil War
That’s the topic of my Tuesday column over at RealClearHistory. An excerpt:
Ross was critical of the success of the death warrants against the Treaty Party Men, but the most interesting aspect of the two mens’ rivalry was the fact that they used the rule of law to fight their battles. Now, the rule of law in the 19th century meant the use of violence between factions (think here about Tombstone, Ariz., where Wyatt Earp and his friends were U.S. Marshals and the friends of the Clantons were Sheriffs), but there was a belief held at the time that violence could only be used by civilized men if the law was on their side. Ross and Watie were both firm believers in this form of rule of law.
Please, read the rest and share it with your friends.
Nightcap
- The case against deporting immigrants convicted of crimes Ilya Somin, Volokh Conspiracy
- What happens when photographers turn their cameras on society’s outcasts? Joe Lloyd, 1843
- Trump’s dangerous game David Henderson, EconLog
- Indonesia clamps down on independence effort in Papua Joe Cochrane, NY Times
Nightcap
- The managerial state and rule by the perfectly unjust man Nick Nielsen, The View from Oregon
- What do left-liberal abusers really think? Bryan Caplan, EconLog
- Cthulhic tendrils lubricated by oil Xenogoth
- How Robert E. Lee’s home became Arlington National Cemetery Rick Brownell, Historiat
Explaining current Brazilian politics to known-Brazilians and why I believe this is time for optimism
It seems that many observers believe that Brazil’s current political situation is one of instability and uncertainty. Since the mid-1990s the national political scene has been dominated by two parties: the Worker’s Party (Partido dos Trabalhadores, PT, in Portuguese) and PSDB. Now, with the main leader of the PT imprisoned – former president Lula da Silva – the PSDB also seems to have lost its rationale. It is clear that this party never had faithful voters, only an anti-PT mass who saw in it the only viable alternative. Given these factors, it is true that a political cycle that began in the 1990s is coming to an end, but far from being a moment of uncertainty and pessimism, this may be the most fruitful moment in the country’s history, as it seems that finally classical liberalism is being vindicated in Brazil.
Brazil began its political history as a semi-parliamentary monarchy. As one observer of the time put it, the country had a “backward parliamentarism”: instead of parliament controlling the monarch, it was the emperor who controlled parliament. Moreover, the Brazilian economy was extremely based on slavery. In theory, Brazil was politically and economically a liberal country. In practice, it was politically and economically a country controlled by oligarchies.
With the proclamation of the republic in 1889, little changed. The country continued to be theoretically a liberal country, with a constitution strongly influenced by the North American one and a tendency to industrialization. In practice, however, Brazil continued to be politically and economically dominated by oligarchic interests.
The republic instituted in 1889 was overthrown in 1930 by Getúlio Vargas. Vargas was president from 1930 to 1945, and his political circle continued to dominate the country until 1964. Once again, political language was often liberal, but in practice the country was dominated by sectorial interests.
Vargas committed suicide in 1954, and his political successors failed to account for the instability the country went through after World War II. The Soviet Union had been trying to infiltrate Brazil since the 1920s, and this was intensified with the Cold War. The communist influence, coupled with the megalomaniacal administrative inability of Vargas and his successors, led the country to such an instability that the population in weight clamored for the military to seize power in 1964.
The military that governed Brazil between 1964 and 1985 were influenced mainly by positivism. In simple terms, they were convinced they could run the country like a barracks. For them, the motto “order and progress” written on the Brazilian flag was taken very literally. One great irony in this is that Auguste Comte’s positivism and Karl Marx’s communism are almost twin brothers, products of the same anti-liberal mentality of the mid-19th century. The result was that Brazilian economic policy for much of the military period was not so different from that of the Soviet Union at many points in its history: based on central planning, this policy produced spectacular immediate results (the period of the “Brazilian miracle” in the early 1970s), but also resulted in the economic catastrophe of the 1980s.
However, the worst consequence of the military governments was not in the economy but in the political culture. The military fought against communism in a superficial way, overpowering only the guerrillas and terrorist groups that engaged in armed struggle. But in the meantime, many communists turned to cultural warfare, joining schools, universities, newsrooms, and even churches. The result is that Brazilian intellectual life was taken over by communism.
Fernando Henrique Cardoso, elected president in 1994, is an important Brazilian intellectual. Although not an orthodox Marxist, his lineup is clearly left-wing. The difference between FHC (as he is called) and a good part of the Brazilian left (represented mainly by the PT) is that he, like Tony Blair in England and Bill Clinton in the US, opted for a third way between economic liberalism and more explicit socialism. In other words, FHC understood, along with leading PSDB leaders, that the Washington Consensus is called a consensus for good reason: there is a set of economic truths (pejoratively called neo-liberals) that are no longer the subject of debate. FHC followed these ideas, but he was heavily opposed by the PT for this.
Since the founding of the PT, in the late 1970s, Lula’s speech was quite radical, explicitly wishing to transform Brazil into a large Cuba. But Lula himself surrendered to the Washington Consensus in the early 2000s, and only then was he able to be elected president. Once in office, however, Lula commanded one of the greatest corruption scandals in world history. In addition, his historical links to the left were never erased. Although in his first term economic policy was largely liberal, this trend changed in his second term and in the presidency of his successor, Dilma Rousseff.
Today Brazil is still living in an economically difficult period, but an ironic result of more than a decade of left-wing government (especially the PT) is the strengthening of conservative and libertarian groups in Brazil. In the elections from 2002 to 2014 it was virtually impossible to identify candidates clearly along these lines. In this year’s election, we expected several candidates to explicitly identify themselves as right-wing. Jair Bolsonaro, the favorite in contention, is not historically a friend of the free market, but his more recent statements demonstrate that more and more he leans in this direction.
It is possible that in 2018 Brazil will not yet elect an explicitly libertarian president. But even so, the economic transformations initiated by FHC seem now to be vindicated. Only with the strengthening of the Internet did Brazilians have real access to conservative and libertarian ideas. With that, one of the most important political phenomena in Brazil in the last decade is the discovery of these ideas mainly by young people, and it is these young people who now cry for a candidate who defends their ideas. Bolsonaro seems to be the closest to this, although there are others willing to defend similar economic policy. After more than a decade of governments on the left, it seems that Brazil is finally going through a well-deserved right turn.
Explaining Jair Bolsonaro to non-Brazilians
I wrote about Jair Bolsonaro here some time ago, but I believe that, with the recent political changes in Brazil, it is worthy to write about him again.
Jair Messias Bolsonaro is a pre-candidate to the Brazilian presidency. Elections will happen in October, and so, following Brazilian electoral law, his candidacy won’t be official until later this year. However, it is already very public that he is going to run for president of the country.
Bolsonaro has been a congressman from Rio de Janeiro state since the 1990s, but he only achieved national notoriety fairly recently, during the last decade of government by the Worker’s Party (Partido dos Trabalhadores, PT, in Portuguese). A former captain of the Brazilian army, he entered politics mainly to defend the interests of his colleagues. As with much of South America at some point between the 1960s and 1980s, Brazil was ruled by the military from 1964 to 1985. Since those governments, there is a tendency of loss of prestige of the armed forces in the country. Bolsonaro defended simply better pay and better work conditions for his fellow soldiers.
In the 1990s he opposed several policies of the Fernando Henrique Cardoso (FHC) government. FHC was responsible for bringing Brazil closer to the Washington Consensus, modernizing the Brazilian economy in many ways. Bolsonaro, however, believed that FHC was selling Brazil to foreigners. Ironically, in that opinion, he was in the company of the Worker’s Party. When the Worker’s Party came to power in 2003, Bolsonaro remained in silence for quite a while. His public opposition to the Lula and Dilma governments began only when the Ministry of Education tried to send to public schools material concerning gender ideology. Bolsonaro and others saw in that an infringement of the separation between the responsibilities of church, government, and state.
Because of his opposition to gender ideology in public schools, Bolsonaro is constantly unjustly accused of misogyny and homophobia, something silly to say the least. Bolsonaro is not a hater of women and homosexuals, at least not more than the majority of the Brazilians. The only thing one can say about him is that, as with many Brazilians, he is very crude with his language. One anecdote might help to explain. When Bolsonaro was already father to four sons, he had his first daughter. Joking, he told his friends that “he’d got weaker.” To many in the Brazilian leftist press, this means that Bolsonaro thinks that women are lesser than men. The same press, however, is not as judicial with the language of other politicians, including former president Lula da Silva, who commonly makes much worse statements. Bolsonaro’s every statement has been scrutinized by people on the left searching for something to blame.
The truth is that apparently unknowingly, Bolsonaro was one of the first Brazilian politicians to consistently fight against Gramscianism. I explain. As I was saying before, from 1964 to 1985 Brazil was ruled by the military. This happened because since the 1920s Brazil was a target of influence by the USSR. Luís Carlos Prestes, one of the most important historical leaders of the Brazilian Communist Party (Partido Comunista Brasileiro, PCB, in Portuguese), trained in the Soviet Union in the 1930s. All leftist parties in Brazil today (including the Worker’s Party) have some historical connection to the PCB. The Soviets (and Chinese, and Cubans) intensified their pressure on Brazil in the 1950s and 1960s. The result was that the vast majority of Brazilian society urged the militaries to take power in 1964.
The armed forces were great in fighting the conventional war against the communists, defeating several guerrillas in the Brazilian interior. But they were simply awful in fighting the cultural war. Early on, many on the Brazilian left noticed that they shouldn’t fight the government in a conventional Marxist-Leninist style, trying to come to power by force. Instead, they should follow Italian socialist leader Antonio Gramsci, and get to power winning hearts and minds first. And so they did. While the soldiers were busy fighting guerrillas, communist occupied schools, universities, the press, and even churches (mainly the Roman Catholic) by the Liberation Theology.
Thanks to Gramsci and his followers, when the military regime was over, Brazilian culture was majorly leaning to the left. The Worker’s Party, publicly socialist, came to power not by force, but by votes. However, Marxism as an economic agenda died a long ago. Lula and Dilma know perfectly well that classical liberalism is the way to go in economics. The aim of the Worker’s Party and associated political groups – most of whom are economically illiterate – is to transform culture. In post-marxism, the “oppressed” are no longer the factory workers, but women, homosexuals, blacks and however fits their agenda for power. We have to sympathize with some of the leftist agenda in Brazil. Historically, thanks to the false capitalism practiced there, Brazil was not a good place for minorities. The individual was never privileged in Brazil. However, the leftist solution (socialism) only makes things worse. Many countries in Latin America, starting with Cuba and Venezuela, can testify to that.
Back to Jair Bolsonaro. Bolsonaro came to the opposition of the Worker’s Party because of the falsely progressive agenda the ruling party was trying to implement. However, since then, Bolsonaro is becoming more and more convinced of the entirety of the liberal-conservative agenda, including its economics. By liberal-conservative I mean the tradition of John Locke, Adam Smith, the Founding Fathers, Edmund Burke, Von Mises and others. Bolsonaro was intelligent and honest enough to cry that “the king is naked.” The Brazilian left doesn’t care about minorities. If they did, they would be conservative or libertarian. Classical liberal ideas have a proven record of helping the poor and the oppressed. Socialism continues to hurt everybody but the very few in power.
The leftist media covering Brazil is frightened and trying everything possible to denigrate Bolsonaro. However, so far their strategy is backfiring. Bolsonaro’s popularity in Brazil grows with every attack. On the internet, his followers call him “Mito” (Myth, in Portuguese). In every city that he visits he is followed by a large crowd of fans. In that sense, he is very much a Brazilian Donald Trump. The left insisted so much on talking about minorities that now the large minority that doesn’t fit into leftist stereotypes found his candidate.
Brazil has severe problems and one solution: rule of law. Bolsonaro seems to be not a populist, but someone who understands that society and economy need order to thrive. And it is becoming very apparent that, to the despair of the left, he might be the next Brazilian president.
Brazilian Senator Aécio Neves close to jail
Brazilian Senator Aécio Neves is close to the jail. He is charged with corruption and obstruction of justice.
Aécio Neves is one of the main leaders of PSDB, the party that, especially since 1994, has been the main electoral opposition to the Worker’s Party (PT) of Luis Inacio Lula da Silva. Fernando Henrique Cardoso, president from 1995 to 2002, is also in the PSDB. Neves was presidential candidate in the last elections, in 2014, and was really close to defeating Dilma Rousseff, the candidate of PT that was later impeached.
The Aécio Neves trial is extremely symptomatic in Brazilian politics. There are no popular manifestations in his favor. No political analyst is claiming that he is innocent and being unjustly accused. In other words, the contrast between Aécio Neves and Lula, recently sent to jail under a lot of noise, couldn’t be greater.
A popular phrase in Brazil is very telling. The translation to English loses the rhyme, but here it goes: when Lula was facing trial, some militants of PT carried signs saying “Lula is my friend, you mess with him, you mess with me.” Former Aécio voters later carried signs saying “Aécio is not my friend, if you mess with him I couldn’t care less.” As usual, the right is right.
Leftism = Victim blaming
Trying his best to become a martyr, former President Lula didn’t surrender to the police as it was stipulated by judge Sergio Moro.
Lula and his gang stole billions of dollars from the Brazilians. Now, all of a sudden, the left is worried about the rule of law.
Lula wanted to surrender Brazil to the interests of Foro de São Paulo, a supranational organization whose aim is to transform Latin America into a new USSR. Now, all of sudden, the left blames judge Sergio Moro for destabilizing Brazil’s democracy.
The only faction responsible for Brazil’s predicament is Lula and his gang. Thanks, judge Sergio Moro and his team for giving Brazilians a glimpse of hope.
A glorious day in Brazil
A glorious day in Brazil: former president Lula da Silva expected to be sent to jail soon.
Contrary to what the Washington Post says, there is no “political chaos” in Brazil. Former president Lula was ordered to jail, plunging Brazil into cosmos ahead of a presidential election.
Contrary to the Guardian, most Brazilians don’t hold any affection for Lula. Lula had support while he was able to feed the poor. Many poor people are already migrating their votes to Jair Bolsonaro.
Also contrary to the Guardian, Brazilian democracy is not connected to Lula. The country’s democracy will be alive and well without him. As for the “parliamentarians, academics and others” who say “Lula should be allowed to stand in the presidential elections,” please, be my guest: take him to run in your country.
A good day for Brazil, Latin America, and the world!
Brazil top court delays decision on blocking prison for ex-president Lula
Brazil’s Supreme Court decided that leftist former president Luiz Inacio Lula da Silva cannot be sent to prison for a corruption conviction until he exhausts all possible appeals. About that:
“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood: if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be tomorrow.” – James Madison (16 March 1751 – 28 June 1836), fourth President of the United States (1809–1817), co-author, with John Jay and Alexander Hamilton, of the Federalist Papers, and traditionally regarded as the Father of the United States Constitution.
“Brazil is not for beginners.” – Antônio Carlos Jobim (January 25, 1927 – December 8, 1994), also known as Tom Jobim, Brazilian composer, pianist, songwriter, arranger, and singer. Widely considered as one of the great exponents of Brazilian music.
Deep Learning and Abstract Orders
It is well known that Friedrich Hayek once rejoiced at Noam Chomsky’s evolutionary theory of language, which stated that the faculty of speaking depends upon a biological device which human beings are enabled with. There is no blank slate and our experience of the world relies on structures that come from the experience in itself.
Hayek would be now delighted if he were told about the recent discoveries on the importance of background knowledge in the arms race between human beings and Artificial Intelligence. When decisions are to be taken by trial and error at the inside of a feedback system, humans are still ahead because they apply a framework of abstract patterns to interpret the connections among the different elements of the system. These patterns are acquired from previous experiences in other closed systems and provide with a semantic meaning to the new one. Thus, humans outperform machines, which work as blank slates, since they take information only from the closed system.
The report of the cited study finishes with the common place of asking what would happen if some day machines learn to handle with abstract patterns of a higher degree of complexity and, then, keep up with that human relative advantage.
What is worth being asked is not whether Artificial Intelligence eventually will surpass human beings, but what group of individuals will overcome the other: the one which uses technology or the one which refuses to do so.
The answer seems quite obvious when the term “technology” is related to concrete machines, but it is not so clear when we apply it to abstract devices. I tried to ponder the latter problem when I outlined an imaginary arms race between policy wonks and lawyers.
Now, we can extend these concepts to whole populations. Which of these nations will prevail over the other ones: the countries whose citizens are enabled with a set of abstract rules to based their decisions on (the rule of law) or the despotic countries, ruled by the whim of men?
The conclusion to be drawn is quite obvious when we are confronted with a so polarised question. Nevertheless, the problem becomes more subtle when the disjunction concerns on rule of law vs deliberate central planning.
The rule of law is the supplementary set of abstract patterns of conduct that gives sense to the events of the social reality in order to interpret human social action, including the political authority.
In the case of central planning, those abstract patterns are replaced by a concrete model of society whose elements are defined by the authority (after all, that is the main function of Thomas Hobbes’ Leviathan).
Superficially considered, the former – the rule of law as an abstract machine – is irrational while the latter – the Leviathan’s central planning – seems to respond to a rational construction of the society. Our approach states that, paradoxically, the more abstract is the order of a society, the more rational are the decisions and plans that the individuals undertake, since they are based on the supplementary and general patterns provided by the law, whereas central planning offers to the individuals a poorer set of concrete information, which limits the scope of the decisions to those to be based on expediency.
That is why we like to state that law is spontaneous. Not because nobody had created it -in fact, someone did – but because law stands by itself the test of time as the result of an evolutionary process in which populations following the rule of law outperform the rival ones.
Nightcap
- The NLRB-Damore Memo Ken White, Popehat
- Justice Sotomayor on legislative history Jonathan H Adler, Volokh Conspiracy
- Bad legal news from China Scott Sumner, EconLog
- Hobbesians vs. Rechtsstaaters Federico Sosa Valle, NOL
Law and Liberty: Hobbesians vs Rechtsstaaters
Individual freedoms are tethered to law, but in what sense? We could call Hobbesian the insight into law and liberty which states that norms are addressed by the sovereign power to the individuals. The Sovereign is the only one who prescribes the law, being the individuals subject to the legal obligation. Even the limitations to the power of the government in the face of fundamental rights – such as the Due Process – are not expressed in terms of limits to the sovereign power but of commands to the public servants: for example, the imprisonment of an individual without accomplishing the legal standards of Due Process allows the government’s agents to punish their unlawful colleagues. The law is always addressed, in the last resort, to an individual by the State.
Proponents of individual liberty thus advocate equality before the law, which means simply “only one state for everyone,” or “individual rights before the state.” Examples include the said guarantee of Due Process, or a system of check and balances among the branches of the government as safeguards against arbitrary coercion by the State. However, they all have a severe difficulty in defending individual liberties without recourse to an extra-system concept, such as natural law, moral duties, or political statements. The emphasis in formal legal procedures would be the utmost in coherence between liberalism and Hobbesianism, but it is easy to slide from procedures that protect individual legal rights to devices assuring the enforcement of the law – which has the individual as its last subject. It seems it is hard to restrain oneself from invoking metaphysical rights when it comes time to advocate individual liberty.
Nevertheless, it should not be surprising that every limit to political power of the State over the individual depends on metaphysical notions, since it is a tenet of the Hobbesian insight that the power of the State is absolute. Moreover, the Minimal State – a true effort to advocate individual liberty without resting on metaphysical notions – owes to Thomas Hobbes its main inspiration.
Historical evidence suggests, however, that in the relation among power, law and liberty is the other way round. The development of common law in England and the phenomenon of the reception of the Roman law in Continental Europe show that law is not necessarily created ex nihilo by the State. The State could provide enforcement to a given system of law, as it is shown in the book System of the Modern Roman Law (System des heutigen Römischen Rechts), by F. K. v. Savigny. Moreover, the States could adapt legal notions originating in private law to elaborate procedures to follow in the public sphere. The principle “venire contra factum proprium non valet” was born in private law and today is a guarantee to the individual against the arbitrary action of the State.
This is the process of rationalization of power described by Max Weber, the German concept of Rechtsstaat or the widely known concept of “Rule of Law.” In that process of rationalization, lawyers outshone the sages, the mandarins, and the humanists in the administration of public affairs by incorporating legal procedures and principles taken from private law. There might be differences among these concepts and historical events, but their common invariances allows us to get the gist.
There is, also, an evolutionary case for the relative advantages of a Rechtsstaat over the notion of sovereignty. In the former the decisions are principle-based while in the latter they are mostly taken by expediency. Since the said principle of venire contra factum proprium non valet and other legal procedures constrain rulers’ whims, government actions are more rational, in the sense of transitivity of preferences.
Thus, in the long run, the performance of the Rule of Law is higher than the Rule of Men. Lawyers outshine mandarins in government posts and, in turn, governments run by lawyers outperform governments run by mandarins. One device to switch from a given form of State to another one is, for example, immigration: people flock to countries where the Rule of Law prevails.
What we have called the Hobbesian insight into Law and Liberty is tied up with the definition of liberty as power. Thus, the equation of law and liberty becomes a zero-sum game: the more state, the less individual liberty, and the less state, the more individual liberty. On the other hand, the definition of individual liberty as absence of arbitrary coercion engages with the concept of Rule of Law: to substitute principles for expediency reduces arbitrary coercion and, thus, enlarges individual liberty.
Does this Rechtsstaat insight into Law and Liberty dissolve the question about the dimensions of the State? Not at all. But it provides a more strategic view: a big State will demand more decisions to be taken on expediency. A small state will provide two advantages to the enjoyment of individual liberty as absence of arbitrary coercion: more decisions based on principles and a larger space for the law to evolve by its own and discover new legal principles in response to the constant changes in the society.
But even if the conclusions might be the same (a smaller State), the two insights carry within them a set of premises that ineluctably will unravel by themselves when it comes the time of a deeper controversy. Then, the Hobbesian Insight will present the disjunction between Minimal State and metaphysical boundaries to the absolute power of the State. The Rechtsstaat strain, instead, will provide a humbler but subtler position.
What if we have already been ruled by an Intelligent Machine – and we are better off being so?
Common people and even reputed scientists, such as Stephen Hawking, have been worrying about the very menace of machines provided with Artificial Intelligence that could rule the whole human genre in detriment of our liberty and welfare. This fear has two inner components: the first one, that the Artificial Intelligence will outshine human intellectual capabilities; and the second one, that the Intelligent Machines will be endowed with their own volition.
Obviously, it would be an evil volition or, at least, a very egotistic one. Or maybe the Intelligent Machines will not necessarily be evil or egotistic, but only as fearful of humans as they are of machines – although more powerful. Moreover, depending on their morality on a multiplicity of reasonings we cannot grasp, we could not ascertain whether their superior intelligence (as we suppose the feared machines would be enabled with) is good or evil, or just more complex than ours.
Nevertheless, there is still a additional third assumption which accompanies all the warnings about the perils of thinking machines: that they are a physical shell inhabited by an Artificial Intelligence. Inspired by Gilbert Ryle’s critique of Cartesian Dualism, we can state that the belief of Intelligent Machines provided with an autonomous volition rests upon the said assumption of an intelligence independent from its physical body: a self-conscious being whose thoughts are fully independent from the sensory apparatus of its body and whose sensations are fully independent from the abstract classification which its mind operates by.
The word “machine” evokes a physical device. However, a machine might as well be an abstract one. Abstract Machines are thought experiments compounded by algorithms which delivers an output from an input of information which, in turn, could be used as an input for another circuit. Theses algorithms can emulate a decision making process, providing a set of consequences for a given set of antecedents.
In fact, all recent cybernetic innovations are the result of the merging of abstract machines with physical ones: machines that play chess, drive cars, recognize faces, etc.. Since they do not have an autonomous will and the sensory data they produce are determined by their algorithms, whose output, in turn, depends on the limitation of their hardware, people are reluctant to call their capabilities “real intelligence.” Perhaps the reason of that reluctance is that people are expecting automata which accomplish the Cartesian Dualism paradigm of a thinking being.
But what if an automaton enabled with an intelligence superior to ours has already existed and is ruling at least part of our lives? We do not know of any being of that kind, if for a ruling intelligent machine we regard a self-conscious and will-driven one. But the ones who are acquainted with the notion of law as a spontaneous and abstract order will not find any major difficulty to grasp the analogy between the algorithms that form an abstract machine and general and abstract laws that compound a legal system.
The first volume of Law, Legislation, and Liberty by Friedrich A. Hayek, subtitled “Norms [Rules] and Order” (1973), is until today the most complete account of the law seen as an autonomous system, which adapts itself to the changes in its environment through a process of negative feedback that brings about marginal changes in its structure. Abstract and general notions of rights and duties are well-known by the agents of the system and that allows to everyone to form expectations about the behaviour of each other. When a conflict between two agents arises, a judge establishes the correct content of the law to be applied to the given case.
Notwithstanding our human intelligence -using its knowledge about the law- is capable of determining the right decision to each concrete controversy between two given agents, the system of the law as whole achieves a higher degree of complexity than any human mind might reach. Whereas our knowledge of a given case depends on acquiring more and more concrete data, our knowledge of the law as a whole is related to more and more abstract degrees of classifications. Thus, we cannot fully predict the complete chain of consequences of a singular decision upon the legal system as a whole. This last characteristic of the law does not mean its power of coercion is arbitrary. As individuals, we are enabled with enough information about the legal system to design our own plans and to form correct expectations about other people’s behaviour. Thus, legal constraints do not interfere with individual liberty.
On the other hand, the absolute boundary to the knowledge of the legal system as a whole works as a limitation to the political power over the law and, thence, over individuals. But, after all, that is what the concept of rule of law is about: we are much better off being ruled by an abstract and impersonal entity, more complex than the human mind, than by the self-conscious -but discretional- rule of man. Perhaps, law is not at all an automaton which rules our lives, but we can ascertain that law -as a spontaneous order- prevents other men from doing so.
Lunchtime Links
- oil and Kurdistan
- after Raqqa, Iraq’s army turns on Kurdistan
- “There has been a common and unfortunate tendency among many analysts and policy makers to underestimate the strength of Iraqi nationalism”
- separatist movements in Europe don’t actually want independence
- GREAT topic, but poor methodology, poor theory, poor use of data, and bad faith
- meh (try this book review instead)
- Law without the State [pdf]
Notes On Liberty 