Liberal Democracies and Authoritarian Regimes: The Case for Law Enforcement. (Part 1 of 12)

The topicality of the distinction between natural and artificial virtues

This essay aims to highlight that the low generalized application of positive legal norms in any legal system, by allowing greater discretion on the part of the public powers, leads to a gradual increase in the levels of authoritarianism, both on the part of governments and of society itself.

Here the concept of “positive legal norms” is used in order to establish a distinction with empirical social norms. The latter consist of factual rules, not enunciated by any specific authority, which are of common and spontaneous observance by the members of a given society and which have extremely diffuse enforcement bodies. The rules of courtesy, of what is known as “fair play,” the expected ethical conduct among the members of a certain group constituted in an unintentional way -such as a business community or a group of friends-, are typical cases of empirical social norms, of which everyone knows their content to a certain extent, although they are not always in a position to state it and transmit it clearly and precisely and that, in general, do not have a “disciplinary court” that applies sanctions; rather, these are usually administered by the group members themselves in a tacit and diffuse way, or they are still relegated to the own conscience of each individual.

A positive legal norm, on the other hand, is sanctioned and promulgated by the public powers and has bodies for the application of its consequences before the verification of certain antecedents, which may consist of repressive sanctions or the establishment of certain creditor relations between individuals. The said consequences will be supported by the application also of the public powers or, expressed in other terms, the officials who exercise the public powers will not incur in any crime or contravention if they execute the dictation of a given sentence. Furthermore, they risk receiving a legal sanction if they abstain from enforcing the law without just cause of its own accord.

To illustrate what has just been expressed with some exemplary cases: If a private individual claims a certain sum of money from another – such as compensation for a breach of contract, or for damage caused to his property- he goes to court, the evidence is debated and the titles of the claim are examined and the court sentences condemning the defendant to a certain sum of money, if he does not pay it within the term stipulated in the sentence, then the claimant would be authorized to initiate the enforcement proceedings. As a consequence, an official with specific powers, summoned for this purpose, would be legally authorized to seize the debtor’s assets and sell them at auction in order to obtain the sum of money whose ownership corresponds to the creditor. Furthermore, the creditor has the power to order the official to activate the enforcement procedures, under the threat of incurring, likewise, legal consequences for the official himself in the event of a possible omissionate conduct.

On the other hand, if in a group of friends someone lies with the purpose of refraining from attending or inviting a certain member of the group to a given social gathering, the eventual discovery of the lie by the rest of the friends or the victim himself will not entail more than what is usually known as a “social sanction,” i.e., a change of concept about the person of the offender. In these cases expressing a negative opinion about the offender or “retaliating” with a similar attitude in turn would not have to carry any social sanction. Or perhaps yes, if the offender is offended by the interpretation given to his actions or considers the retaliation disproportionate or illegitimate. Logically, this can lead to an escalation of sanctions, but since this does not involve relevant interests for society nor does it generally lead to events of physical violence, everything remains at the level of the empirical social norms system.

Finally, if the interests involved gain social relevance -for example, retaliations involve events of physical violence-, positive legal norms begin to be activated that clearly demarcate the antecedents and responsibilities of each party and the compensation and sanctions to be determined and applied by part of an impartial tribunal. This is because, as is well known, one of the main tasks of the law is to “keep the peace.”

[Editor’s note: this is Part 1 in a 12-part series; the essay in its entirety can be found here.]

People: neither blithering idiots nor towering geniuses

Or is it that they’re both?

As a young libertarian first exposed to economics (actually it was my third exposure where it took) I was struck with an exciting proposition: people don’t need the government to look after them because (we’ve assumed that) they’re rational! In that case, government can almost only ever do harm. Add in some public choice and Austrian insights and you’ve got a water tight defense of liberty.

But actually you don’t. Because as it turns out, people might actually be complete morons. I’ll bet if you marketed a brand of bottled water as having never been warm–cleaned with pre-chilled filters made in iceland, and never poured into room temperature bottles–it would sell. But if that’s the case, the world should be a scary place. People would be doing ridiculous things and electing ridiculous politicians to help them act even more absurdly.

I’m an economist and I still do plenty of irrational things. But it turns out that first taste of economics was econ of a particular variety: the study of what is rational. Not the study of how people rationally act. That’s not to say it’s worthless. David Friedman put it well in Hidden Order: if people are rational some times and act randomly other times, then we can still make useful predictions about their behavior. But I don’t think that economics is some sort of half-science that assumes away randomness in order to study some portion of people’s actions.

Mostly, I think the study of rationality lays a foundation, and offers a puzzle, to allow further study of ecological rationality. The world is orderly and roughly follows the predictions we make when we assume individuals are rational. And yet people seem far from rational. What gives?!

It turns out we have to pay attention to institutions. These often hidden rules of the game direct our actions and embed our learning in social rules. Those crazy (probably imaginary) sociologists might have been on to something when they said that individuals’ actions are shaped by social forces. It’s not that people don’t have autonomy, it’s that people don’t exist in a vacuum.


Yes they are.

What’s my point? Learning a little bit of economics goes a long way to making good arguments for liberty, but it doesn’t go far enough. We live in an a much more interesting world than the one we learn about in econ 101.