RedStateEclectic

A Survey of Law - Simple Rules for a Complex World

Image credit.

Richard Epstein is a rich source of insight and inspiration for the classical liberal who seeks to tread the middle ground between 

(1) F.A.Hayek's highly abstract theory of the rule of law - valuable in its own right, but often of limited use in discussing concrete issues - and

(2) the broad and uncertain schemes of law attributed to a social utopia void of the state, the attendant summary denouncement of legal arrangements and the denial of freedom in contemporary societies with pervasive state structures, or

(3) today's predominant legal positivism based on the assumption that the state has a superior problem solving capability compared to all other societal agents and is therefore entitled to practice unrestrained discretion in its capacity as the the sole legitimate source of all law.

 

Recidivism

I just bumped into him again - Theodore Dalrymple. Electronically, that is. We first met in Bodrum, Turkey, last September. His lovely French wife was the first person I got to talk to in the hotel's luscious garden, after I had arrived late and hungry and glad to find myself amongst a crowd of diners. Soon Theodore appeared, back from a buffet prowl, I seem to remember. We were also joined by the historian Professor Norman Stone, formerly of Oxford university, who now teaches at universities in Istanbul and Ankara. With the three of them, I spent a wonderfully convivial evening of a British and a pronounced academic flavour. I would be only too happy to fall into relapse.

A retired prison doctor and psychiatrist, Theodore writes:

I was on my way a few days ago to France via the Eurostar, the train that goes from the center of London to the center of Paris via the Channel Tunnel, and bought Le Figaro, the French newspaper of conservative posture, to read on the way. Its lead story was about the plans of the French Minister of Justice, Christiane Taubira, to suppress short prison sentences in favor of such penalties as probation, community service and the wearing of electronic bracelets, to release substantial numbers of prisoners before their prison sentences were completed, to give future prisoners the automatic right of release after serving two thirds of their prison sentences, and to remove certain crimes (unspecified) from the penal code. My heart sank; we’ve tried all that in Britain, with results that only an intellectual with years of training to prevent him from being able to see what is in front of his nose would or could find surprising.

The entire article.

Edmund Burke and the Woman on the A-Train

"The cloudy sky is more grand than the blue," said Edmund Burke, according to the image source.

Following up on Laura's post Conservatives and Libertarians: Uneasy Cousins, I offer the lucid - and to me highly inspiring - below lecture on the great "conservative-libertarian" thinker and politician Edmund Burke, delivered by Ian Shapiro, Professor of Political Science at Yale University.

I have always neglected "my Burke". Though, I once had a go at Conor Cruise O'Brien's magisterial biography. At the time, however, I was insufficiently prepared to cope with the onslaught of historic ideas and circumstances jumping at me from the tome.

Shapiro's presentation certainly is a paragon of clarity and concentration.

 

Putting Parameters on Our Utopias

In recent posts and comments, I have endeavoured to advise against the inclination of many fellow-libertarians to effectively stop the process of building a positive theory of the state as a result of adopting a largely normative theory that systematically selects aspects of the state considered undesirable at the expense of a(n unbiased) comprehensive picture of the state-society-nexus.

These recent comments can be read as a homage to James M. Buchanan, a classical liberal, to whose sober and incisive mind the state has been equally important and worthy of in-depth study (i) as a condition of liberty and (ii) as her antagonist.

My initial encounter with Buchanan was effected by reading his What Should Economists Do? - a paper that made him stand out vis-à-vis most of the economists I had hitherto studied. Exchange, not choice, he argues, not maximization, not allocation, is the most fundamental subject-matter of economics.

I still have the book with my tremulous underlining and lots of scrawly comments, some by pencil, some by ball-pen. Here is a passage I somehow felt urged to underscore with particular ardency, apparently first using pencil and then ball-pen:

Economics is the study of the whole system of exchange relationships. Politics is the study of the whole system of coercive or potentially coercive relationships.

Watch here Buchanan interview Hayek.

See also my Public Choice and Thinking Government Failure - James Buchanan, Father of Public Choice Turns 90.

Big 'SIS'

From the review at Amazon:

"Ending Big SIS (The Special Interest State) and Renewing the American Republic" is a stern look at the current crisis in politics and government. The surface problems are known to all: uncontrolled spending; exploding debt; legal and regulatory absurdity; imperious bureaucracy; misdirected investment; and crippled private businesses and institutions. But these are actually symptoms, not basic problems. They cannot be cured until we face up to a deep crack in the structure of our political institutions. We have allowed special interest groups of all kinds – the Founders of the republic called them “factions” – to capture segments of the government and then use its sovereign powers to tax, legislate, spend, and regulate to promote their own agendas rather than the interests of the nation as a whole. Indeed, we celebrate capture. We assume that this jockeying for governmental advantage is part of democracy, and that somehow it will all work out. But it will not work out, because too many interests have won too much over too long a period. Our institutions, which were designed to make government act slowly, make it impossible to reverse course, especially because the winning interests support politicians who will block reform. In fact, the problems will worsen, as ever-more groups demand a share of the pie. The Founders regarded capture by faction as a threat to the existence of the republic, using, in the words of one historian, “a dreadful image of a spreading rot” of a cancer eating at the vitals of the body politic. They were right, and American politics is approaching the day when the very legitimacy of the government will come into question. The book assesses the fears of the Founders, how their ideas governed our political arrangements for 150 years, and the rise of the special interest state in the 20th century. It analyzes the powerful forces that uphold Big SIS, and closes with some specific suggestions on how to reverse course. From the book: The Founders’ view: Like architects analyzing the lines of force necessary to prevent the collapse of a building, the Founders focused on making the forces of factional passion neutralize each other, thus keeping the republic standing. (p.2) Effect on other institutions: The leverage exerted by Big SIS affects decisions far beyond the money that it commandeers directly. It distorts the incentive structures throughout society, and sends investors and workers skittering off in unproductive directions. (p.91) The ratchet: Big SIS [is a ratchet that allows] motion in one direction only – toward greater government activism -- and then locks. (p.112) Rational ignorance: As more rules are created, and as complexity and opacity grow, it becomes more difficult to be “well-informed”. The rational response is not to increase one’s efforts but to cut them back, becoming even less diligent in seeking knowledge. 9p.119) Rapacity: The interest gets the benefits while the costs are borne by society at large, so there is “no constraint on the social cost such an organization will find it expedient to impose on society in the course of obtaining a larger share of the social output for itself.” (p.120)

 

The source:

Natural Ends and Prudential Judgement

Lately I have been surrounded by what appeared to me large doses of dogmatism; and dogmatism never fails to torment me with a sense of suffocation. As an almost inadvertent backlash, I have developed a voracious appetite for criticism, for diverging assessments and different perspectives on a number of topics that are foremost among my intellectual interests. In the process, I have come across a certain Edward Feser (see also here), who strikes me as one of the finest minds I have met in quite some time.

I recommend wholeheartedly full perusal of Feser's clear and fascinating juxtaposition of the Catholic natural law tradition with the thought of Friedrich Hayek and Murray Rothbard.

Writes Edward Feser:

The natural law theory associated with Aquinas and the Scholastic tradition in general is committed to the idea that human beings have a natural end or purpose and that their particular natural capacities (whether intellectual, procreative, or whatever) have natural ends or functions as well.  These various natural ends determine the content of the moral law, including (for those Scholastic natural law thinkers who are also natural rights theorists) the rights we possess.  By contrast, Locke, who is also usually classified as a natural law theorist, denies that we can know the real essences or natures of things, and thus rejects any appeal to natural ends or purposes as a basis for determining the content of the natural law.  Locke instead grounds his natural law theory directly on God’s ownership of each human being, and derives our rights from the idea that to harm anyone in his life, liberty, or property is to damage God’s property.

 

 

Locke’s approach, rejecting as it does the traditional Scholastic grounding of natural law in natural ends and functions, is notoriously problematic.  Without any appeal to such natural ends or purposes, it is hard to see how to give natural law any detailed content.  Merely referring to God’s ownership of us may suffice to show that we cannot do just anything we want to each other, but deriving specific moral principles is much harder.  Yet Rothbard’s position seems if anything in worse shape.  For if Lockean natural law is a watering down of the traditional Scholastic conception of natural law, Rothbardian natural law theory seems itself little more than a watering down of Locke. 

 

To be sure, Rothbard does pay lip service to the Scholastic tradition, and even endorses the general idea that human beings have natural purposes.  But there the similarity to the Scholastic tradition ends, for Rothbard appears to accept none of the distinctive ends or purposes that that particular tradition would attribute to us.  Instead, he formulates the content of the natural law in terms of the thesis of self-ownership, which he borrows from Locke.  Now for Locke, talk of self-ownership is really just a shorthand way of talking about the lease God has given each of us on our own lives.  Locke’s view is that it is, strictly speaking, really God who owns us and that we are merely stewards of His property.  If we “own” ourselves at all, it is only in a loose sense and only relative to other human beings.  But Rothbard rejects any such theological foundation for self-ownership.  His aim is to give it a purely secular basis.

 

That basis seems to me to be severely inadequate, however.  Rothbard’s defense of self-ownership is stated in the form of a dilemma: if a person A does not own himself, then either some other person B owns him or A and B have joint ownership of A; and either alternative to self-ownership, Rothbard goes on to argue, will have absurd consequences.  I will not bother discussing those consequences here, though, because I think Rothbard’s argument has gone wrong already insofar as the dichotomy he describes is a false one.  There is a third alternative he fails to consider, namely that no one at all owns either himself or anyone else.  To own oneself, after all, is just to have certain rights over oneself, and there are certainly philosophers who would deny that we have any rights, or at least any natural rights, at all.  So before Rothbard can establish that a person A owns himself rather than being owned by B or sharing ownership of himself with B, he first has to establish that anyone owns anything at all, and thus that anyone has any rights at all. 

 

The only hint Rothbard gives of how this might be done is to suggest that a person has by nature and in general a need to use his body and its parts in order to interact with the world in a way that will allow him to survive, and in particular a need to use his cognitive faculties, vocal chords, and the like in order even to argue about whether or not there are any natural rights.  He seems to think that this shows that a person does in fact have rights over his body, cognitive faculties, vocal chords, etc., otherwise he wouldn’t be able to survive or do so much as consider the question of whether he has rights.  But in fact it shows no such thing.  To have a mere need is not to have a right: a maggot might need rotting tissue to consume if it is to survive, but it does not follow that maggots are self-owners or have rights.  Nor does the pragmatic self-contradiction Rothbard seems to think is entailed by using your vocal chords, etc. to deny the existence of rights establish what he seems to think it does.  The most this argument would prove, if it really proves anything, is that we have to act as if we have rights over our body parts; it does not show that we really do have them.  Moreover, even if Rothbard’s argument succeeded in proving that we have any rights at all, it would at most show that we have rights to the use of our body parts to the extent required to stay alive.  It would not establish that we have full ownership of ourselves in the sense Rothbard thinks we do.  After all, a person might have a right to use something for certain purposes without having full ownership of that thing, or any ownership at all for that matter.

 

Now the Catholic natural law tradition would argue that the fountainhead of all rights is the natural end human beings have.  And by “end” it means purpose or aim, not mere need.  The Catholic natural law tradition, that is to say, is teleological through and through, committed to the objective existence of final causes or purposes in nature.  This is one reason why even though Catholic natural law thinking, unlike Locke’s natural law theory, does not appeal directly to God’s will in order to determine the content of natural law, it nevertheless does insist on the existence of God as a precondition of the intelligibility of natural law, because without God there can be no objective ends or purposes in nature.  There can at most be, perhaps, certain naturalistic/evolutionary analogues to ends or purposes, but without God these can only be ersatz, “as if” purposes, not real ones, and thus they cannot be the source of genuine moral obligation. 

 

Given that we do have an objective end or purpose, however, and that we have moral obligations that follow from this end or purpose, it follows according to the Catholic natural law tradition that we have certain natural rights.  But the ground of these natural rights is nothing other than the fact that the recognition of certain rights is necessary if we are to be able to follow our moral obligations and fulfill our natural end.  The natural rights we have just are, and can only be, the rights that we require in order to fulfill those obligations and realize that end.

The source.

Property Rights

The more I study the pertinent arguments, the more I am frustrated by the simplistic libertarian or rather anarcho-capitalist take according to which the world is evil because of the presence of the state and the concomitant article of faith that complete - and hence morally compelling - betterment is just a matter of removing the state.

Things are a lot more subtle and complicated. Summary visceral dismissal of "the state" may elicit a high feel-good-factor within a choir of predisposed hecklers, but it is not apt to advance comprehension and adaptation to the challenge.

"The state" has never been decreed into existence, and it will never be decreed out of existence; relations and relationships of power, fiat, coercion imposed and agreed are the substratum in which liberty and markets are enmeshed. Out of this substratum we must form markets and liberty, if they are to be.

I know of no way to reduce the prospective enhancement from greater political power-seeking, but I do know ways to reduce the rewards to market-oriented capitalist competition. Political power is dominant in being able to set the rules of the game to reduce the rewards to capitalist-type successful competitors. It is rule maker, umpire, and player: by taxes, regulations, controls, national planing and directives, lawsuits, etc. But I have been unable to discern equivalently powerful ways for economic power to reduce the rewards to competitors for political power! Each capitalist may buy off a politician, but that only enhances the rewards to political power.

The Collected Works of Armen A. Alchian, Volume 2, p. 604

 

Toward the very end of the video, Alchian offers a momentous proposition: "After all, property rights are what the rest of society will enforce for me."

More on authors and literature mentioned by Alchian.

Liberty and Women

"Gender" issues tend to be at the forefront of political activism undermining liberty. People are scared to deny women their special "rights", so strong is the affective conditioning concerning the issue - a perfect inroad for politicians, who thrive on substituting law by commands advancing special interests.

"Women's Rights - A War on Liberty", would be a title more apposite for the below book, it would seem. But even libertarians seem to dread the emotional storm that pricking this sacred cow is bound to trigger.

Not too long ago, the German state decreed special laws for the Jews in Germany, today, we are fond of passing laws that apply only to women, demolishing the fundamental principle of equality before the law - a more complete perversion of the emancipation of human beings (including, naturally, those that happen to be female) is hard to imagine.

Here is one of the hundreds of good, important or at least promising books that I am not likely to read in the foreseeable future or ever. I wonder, if some of our readers might want to look more closely at Liberty is No War on Women by Lukas, Schaeffer.

A recension would be most welcome.

Keeping Dirty Capitalists at Bay

The source.

See also The Red Tape Horse of Australia.

The Art and Science of Self-Governance

Richard Ebeling has in his blog an article on the work of Vincent Ostrom (1919 - 2012), who passed away only three weeks after his Nobel Prize winning wife died.

The language of liberty — the language of a free, and self-governing people – is being lost. And it is through our language that we think about ourselves, our relationships to others, and the general social order that we share.

Victor Klemperer, a German Jew, who survived life in Nazi Germany, wrote a book after the war called The Language of the Third Reich. He argued that virtually everyone in Nazi Germany was a Nazi – whether or not they considered themselves to be National Socialists, including many of the victims of the regime (including German Jews).

Why? Because they had been captured by and had adapted in their thoughts and beliefs the ideas and ideology of their Nazi masters. They found it difficult to think about life and morality in any other way; that is, to reason in a way independent of the language of words and political phrases reflecting the Nazi conceptions of man, “race” and society. In their minds, Klemperer was suggesting, they were no longer self-governing human beings, but slaves of the regime since they thought and acted in terms of the lexicon and logic of Hitler’s National Socialism.

[...]

Whether we succumb to collectivist paternalism or preserve the language and ideas of freedom will determine whether or not the great American experiment in self-governance, which so impressed Alexis de Tocqueville when he travelled in America in the 1830s, will endure.

Vincent Ostrom’s writings not only explain the nature and logic and premises of American self-governance. They also direct us to appreciate the uniqueness in human history of this great American experiment of liberty through divided and decentralized political power; and what a tragic loss it will be if American’s give it up.

He leaves a profound legacy of writings devoted to the philosophy of freedom, with his brilliant analysis of the political institutions and socially shared ideas without which liberty cannot endure.

The source.

See also here.