The Institute for Justice podcast is always an interesting listen. I could write exclusively about the cases they talk about, but that's sort of what they do in their newsletter, and if I've learned anything about the law, it's that I don't want a lawyer suing me for plagiarism.
But one case made me rewind the podcast to make me sure heard it correctly, and sure enough, I did.
An internet security firm, Tiversa, intentionally broke into a medical laboratory's server, stole sensitive data, then approached the lab's management in an attempt to land them as a client. The lab refused, probably figuring that they'd be better served by a firm with a sightly more ethical approach.
When Tiversa did not get the job, they reported the breach to the Federal Trade Commission in the hopes that the heavy hand of the government would pressure the lab into purchasing their services.
Here's where I got confused. I was expecting that Tiversa would have been prosecuted for stealing the data. I was wrong. It took about 4 years, but the FTC eventually sued the lab over the data breach.
Maybe it's just me, but blaming the victim is never good policy. This is the kind of abuse that I trust Rand Paul would attempt to curb. I hope Donald Trump will as well.
Although the current low oil price is bankrupting many producers and explorers in North Dakota and elsewhere, and many rigs are now standing idle with jobs being lost, there has only been a very modest fall in production.
That is because the technology for getting oil out is improving rapidly and the cost is falling fast, so some producers can break even at $30 or even $20 a barrel and it takes fewer rigs to generate more oil. It is one of the cruel features of innovation that it usually benefits the consumers more than the inventors.
This means the shale industry can now put a lid on oil prices in future. Aguilera and Radetzki argue that not only is the US shale industry still in its infancy, but that there is another revolution on the way: when the price is right, conventional oil fields can now be redrilled with the new techniques developed for shale, producing another surge of supply from fields once thought depleted. They also expect that other countries — beginning with Australia, Argentina, China and Mexico — are ripe to join the technology revolution begun in American shale.
Discovery through political competition is not without risks, and it cannot guarantee the absence of severe error, but it is still the best way (1) to incorporate knowledge generated in civil society, (2) to keep politically dominant views exposed to ongoing corroboration, and (3) to include the largest possible number of interest groups in the permanent sequel of repeated games that produce effective trust in society, thus bringing about the dynamic equilibrium of dissension and pacification which defines feasible freedom.
Monadic Rights versus the Constant Rewriting of the Social Contract
Classical liberalism tends to misunderstand or ignore the political logic of freedom, owing to a monadic conception of the rights underlying personal freedom. In theory, these rights are absolute, immutable, and monadic, i.e. attached to and owned by the individual in inalienable form. Under feasible freedom, however, people, in exercising their liberty, negotiate and renegotiate these rights, both in politics and in private transactions. Free citizens constantly renegotiate new permutations of feasible freedom, thereby constantly rewriting the social contract.
Open Discovery Processes Underlying Economic and Political Freedom
We detect an unexpected and rather incongruous similarity of deficiency in socialist ambitions for central planning and liberal calls for a depoliticised society. Both desiderata are based on incomprehension of a vital spontaneous order which concerns politics and the state in the case of liberalism and also the economy in the case of socialism. Both political camps underrate or misconstrue the need and the logic of the indispensable discovery procedures required for strong economic performance (socialism's defect) and the feasibility of civil society at large (classical liberalism's defect).
Search by Free Persons versus Automatisms
As there is no single person or group of persons capable of registering all inputs needed to calculate an efficient allocative distribution, Hayek suggests inclusion of all citizens in a free economy to approximate far better the needed range and quality of information. Analogously, no single person or group of persons is capable of registering the inputs needed to take better political decisions than are available from a regime that guarantees the possibility for all citizens to make their contribution to political decision making. Incongruously, liberalisms akin to Hayek’s insinuate the equivalent of an impersonal central planer by suggesting that observance of certain rules activates automatisms in a free society, notably the market mechanism and the rule of law, that reduce the need of politics to such an extent as to render freedom a state of affairs distinguished by the absence of significant levels of politicisation - a visionary predilection that amounts to the disenfranchisement of the public.
Decentralisation versus Disenfranchisement
A free society, I contend, is akin to a free economy, in so far as only the mobilisation of dispersed knowledge lodged in decentralised units (citizens and their organisations) can bring about a discovery process capable of sustaining human relations that make freedom feasible.
Freedom's Boundaries of Contingencies
Liberalism cannot fulfil its role in a free society unless it acknowledges that its leadership in matters of constitutional integrity does not carry over into the area of legitimate political discretion. And liberalism must recognise that within the boundaries of constitutional integrity there is substantial leeway for political discretion by players of quite distinct emphases of vision. Freedom remains an open-ended project.
Feasible Freedom - A Dynamic Equilibrium Balancing Dissension and Peaceableness
In order to establish her meaning and detailed shape, liberty depends on a political infrastructure that engages contestants in a competitive discovery process that is likely to result in eclectic policy outcomes deviating from puristic ideological positions. Adaptability is a survival requirement for any agent participating in the political discovery process. Puristic ideologies fail to stay in touch with the diversity of interests and views that push toward concrete policies. Feasible freedom may be conceived of as a dynamic equilibrium balancing dissension and peaceableness. Approximating the balance requires that the competing agents continuously search for new information about the prospects of their agendas, swiftly adjusting the latter to sustain support and the power to exercise influence. Precise and consistent accounts of freedom such as endeavoured by classical liberalism play an important role in clarifying the rules of the discovery game and the inalienable contours of freedom, but they are too abstract and too general to be able to prejudge the differing aims that people ought to be free to pursue within the competitive political framework of an open access society. Ideologies lend impetus to freedom’s sine qua non: discovery by political competition, but they do so fruitfully only when being capable of changing and renewing themselves in response to the findings elicited by the search.
The success of politics under feasible freedom is to be judged by the ability to balance dissension and peaceableness under the auxiliary conditions of high levels of personal autonomy, productivity, and wealth. We may register good performance and even progress along these lines in the very presence of states of affairs that appear insufferable from a classical liberal point of view. But it should not be forgotten that classical liberalism is just a set of hypotheses, some of which are rejected by freedom. Freedom is not identical with liberalism. Freedom is not identical with liberalism‘s account or expectations of her.
Volkswagen’s deception was a self-deception because with some of the best engineers and scientists, they chose to accept the claims of the Intergovernmental Panel on Climate Change (IPCC). Clearly they did not look at the IPCC reports because if they had they would discover what Klaus-Eckart Puls discovered.
“Ten years ago I simply parroted what the IPCC told us. One day I started checking the facts and data—first I started with a sense of doubt but then I became outraged when I discovered that much of what the IPCC and the media were telling us was sheer nonsense and was not even supported by any scientific facts and measurements. To this day I still feel shame that as a scientist I made presentations of their science without first checking it.” ”Scientifically it is sheer absurdity to think we can get a nice climate by turning a CO2 adjustment knob.”
If they looked at the IPCC Reports and didn’t reach the same conclusion, then they are grossly incompetent, or the corporation took a political decision with their tacit approval.
They, like all automotive producers chose to pursue CO2 reduction as a marketing tool rather than examine the science and make the proper decision. Figure 2 shows their, now laughable, attempt to exploit the marketing opportunity.
Volkswagen was not alone in the decision to capitulate to the green lobby and government deception about climate change. Almost all industry chose to cow and beg forgiveness for their sin of using fossil fuels. [...]
They surrendered to the eco-bullying even promoting what they had to know, or could easily discover, was bad science. They abjectly backed away despite simple and plausible options – they became appeasers. Like all appeasers, they only created bigger problems for themselves and society.
The crocodile is now eating them. Consider the case of Exxon. They totally surrendered to the ridiculous charge that they spent $16 million on climate change research. A simple comparison with government spending on climate research offsets the charge of bias as Joanne Nova so ably exposed. Couple this with the legitimate argument that understanding climate and climate change is basic research and development essential for any energy company. No sensible investor would put money into a company that was not doing such research. Now compare Exxon’s behavior with that of the insurance industry. They spend millions, to great praise, funding documentaries and promoting and exploiting severe weather threats for the sole purpose of selling more products.
The various "branches of government have their roles, but it's time to give us some of our government back, to embrace our heritage, and to breath life back into our constitutional system," thus argues Mark Levin, whose book "The Liberty Amendments" Ed Stevens has recommended to me to better understand the LR 35 initiative.
It seems to me an exceedingly commendable initiative, for nothing is more important than keeping the public aware of and actively participating in the constitutional framework of American politics.
You may disagree with Levin on this or that issue, or not; in any case, the initiative offers an excellent opportunity to compete politically in the context of a set of needful and constructive categories such as living federalism and true subsidiarity.
And it is recognised across party lines that we need to engage in a discussion that restores the respect for the fundamental principles of a constitutional republic:
Image credit. Fish derive many benefits from shoaling behaviour including defence against predators (through better predator detection and by diluting the chance of individual capture), enhanced foraging success, and higher success in finding a mate. It is also likely that fish benefit from shoal membership through increased hydrodynamic efficiency. More.
I am working on a presentation about "The Paradox of Freedom - Hayek and the Crisis of (Classical) Liberalism."
Spontaneous Order - The Core Concept of Classical Liberalism
In designing the introductory slides, I wish to convince my audience that spontaneous order is THE PIVOTAL CONCEPT that gives cohesion to classical liberalism over a period of 300 years from John Locke to perhaps the last of the Mohicans, F.A. Hayek (1899 - 1992).
To be sure, the term spontaneous order comes into play at a late stage - I understand it was Michael Polanyi (1891 - 1976) who coined the term perhaps sometime during the first half of the 20th century. The new expression was eagerly taken up by F.A. Hayek, whose work is nowadays generally associated with the concept.
Spontaneous order means order that comes about by the observance of evolutionarily selected rules.
Well, that is not entirely correct as (some of) the rules - whose abidance engenders spontaneous order - may be consciously chosen - as an act of imitation or insight into the working of a certain spontaneous order - for instance, the Prussian ruling elite copied British capitalism, and Ludwig Ehrhard set the course for West German post-war success in using his understanding of the capitalist spontaneous order. Here we are touching upon the complicated relationship between spontaneous order and conscious design, which has been unsatisfactorily accounted for by Hayek, and tends to be the weak point in classical liberalism, as we shall show in the sequel to this post.
The hallmark of a spontaneous order, however, is that it cannot be achieved in its essential entirety by conscious design. In other words, it is not possible to consciously choose all of the rules that govern it, in contrast to a mechanism that is fully determined by human design.
To be more precise, what I mean by "its entirety" is: spontaneous order evolves without a designer responsible for its essential features, and by playing according to its rules we keep initiating the constantly evolving stages of a spontaneous order. It may be possible to copy the rules of a well-tried spontaneous order (as Ludwig Ehrhard did) or even kick-off a spontaneous order (as a gardener does), but the overall working and outcome of this order is not under the full control of the initiator.
Ehrhard could not possibly predict the future detailed performance of post-war capitalism in Germany, and the gardener is surprised by the way "his" garden develops, and how it reacts idiosyncratically to foreseen and unforeseen events, not to mention the fact that the growth of the plants is itself an emergent phenomenon rather than a form of conscious construction by a human author.
A spontaneous order consists of the orderly interaction of its elements which may be animate or inanimate and therefore do not have to be aware of their complying with the order's rules. For instance, the genesis of the universe may be described as a spontaneous order.
A School of Fish
A school of fish is an example of spontaneous order.
The school's orderly behaviour is not the result of an orchestrating mind. There is no such thing as a boss-fish who anticipates a strategy and directs the rest of the school to follow suite.
The order is entirely due to all members of the school honouring certain rules - which ability evidently is part of their instinctual make up. They react to certain stimuli in ways that can be described in terms of rules. It is this rule-following that makes them bring about order as a school.
The crucial point is that human interaction can also be of the type of spontaneous order - and that is a good thing, because spontaneous order can achieve far higher levels of complexity (as in the interactions of a modern economy) than man-made order, and thus accomplish feats that humans depending on their talents for design are incapable of.
Why? Because the number, kind and range of experiments taking place in the universe, part of which we are, is unlimited or at least considerably larger than any creative attempts attainable by human imagination and experimentation/corroboration. To the extent that our knowledge is imperfect and limited, we are always unaware of countless options that only continued evolution will bring to the fore.
Locke - Hume - Smith - Hayek - The Arc of Unity
Hume
I contend that all great classical liberals believed in spontaneous order, certainly David Hume, the co-inventor of the evolutionary paradigm (together with other classically liberal proto-social-scientists and other "Darwinians before Darwin"). There are good grounds to think that Darwin was inspired by writers like Hume and Smith, coming up 150 years later with the application of evolutionary concepts pioneered in the study of human social phenomena like language, law, morality, money etc by classically liberal thinkers.
Smith
In Adam Smith, the idea of spontaneous order is epitomised by his famous notion of the invisible hand. We pursue our self-interest (following the laws of our nature) respecting certain commonly applicable rules and thereby create a beneficial order, of which none of us is the author. An order that allows us to serve the needs of (largely anonymous) others by observing our own needs.
Locke
And even John Locke, the originator of classical liberalism, though hardly acquainted with modern evolutionary thought, did surely think in terms of spontaneous order, as implied in the scholastic natural law tradition to which he adhered: the compliance with natural laws makes for a good order, in fact, an order pleasing to God, as these laws express the will of God. There is a human nature that conforms with the will of God, and he who lives according to laws that agree with human nature thus produces and partakes in a spontaneous order. An order attained by conforming to the right set of rules.
Rule-Based Order versus Command-Based Order - Breakthrough for Liberty
The discovery of spontaneous order in human society by liberal thinkers may be the single most consequential intellectual attainment helping to further the cause of liberty. Liberal spontaneous order in human affairs establishes:
There is an order better than one derived from determinations of the authorities.
There is a standard against which the performance and limits of government can be rationally judged and asserted.
Instead of relying on the wisdom and benignity of a ruler, a human spontaneous order under liberal auspices is a far more effective way to build and maintain the "good society".
Common rules to be adhered to by all members of society produce a superior outcome compared to the best judgement of a ruling genius or elite.
The rule of law is born, eclipsing the rule of (mighty) man (over powerless man).
The individual appreciates in value tremendously and becomes emancipated at the same time.
The citizen is born.
What is needed to uncouple society's, i.e. almost everybody's prospects from the stiflingly parochial intelligence of a ruling clique is the participation of all citizens in a game of common rules.
Thus, confidence in the existence of spontaneous order in human affairs is the most fundamental presumption employed by the classical liberal mentors of modern concepts of freedom. The break-through idea remains essential for understanding the nature and value of freedom to this day.
At the same time, it is the improper application of this concept that is at the core of the decline and contemporary political ineffectiveness of classical liberalism. To be continued at The Paradox of Freedom - Limits of Spontaneous Order (3/5).
From my point of view, one of the most virulent threats to freedom nowadays in the Western world derives from a new state "religion" called global warming. In the absence of an effective separation of state and "religion," science is under massive attack and in advanced decline in many of its institutions.
During a conference I attended in Prague, Czechia, a gentleman from the University of Cambridge, UK, admitted he was impressed to have met in me the first German, who is opposing the theory and corresponding policies of anthropocentric global warming (AGW). Not only that people in my country are being systematically misled and discouraged to take an oppositional stance, I know a number of players in the huge subsidised markets that have grown up around the new "religion" who tell me on the quite that they think the whole AGW-thing a scam, yet either fear to swim against the tide or pragmatically conclude that there is easy and big money to be made from jumping on the bandwagon. My country is criss-crossed by drag marks of fanaticism and corruption. This cultus is totalitarian (like any state of war) and it is accustoming people to accept totalitarian practices.
... very few [scientists opining on climate change/global warming; G.T.] are familiar with the science. They, like most of the public, assume other scientists would not distort, manipulate, or do anything other than proper science. When scientists find out, they are shocked, as exemplified in German meteorologist Klaus-Eckert Puls’s comment:
“Ten years ago I simply parroted what the IPCC told us. One day I started checking the facts and data—first I started with a sense of doubt but then I became outraged when I discovered that much of what the IPCC and the media were telling us was sheer nonsense and was not even supported by any scientific facts and measurements. To this day I still feel shame that as a scientist I made presentations of their science without first checking it.”
As we have seen in Liberty and Totalitarianism - Michael Polanyi (2/3) - The Moral Inversion of Liberalism, Michael Polanyi is saying that from its inception liberalism let two virulent genies out of the bottle. Anti-authoritarian and tolerant of scepticism, it would prove hard to inhibit these two traits of liberalism as they begin to wind their probing way toward nihilism.
Nevertheless, in the Anglo-American world, religious freedom (the toleration of distinct creeds) coexisted with continued widespread practice of religion and a vibrant democratic culture, both of which traditions being helpful in shielding long-established moral principles from the morally corrosive effects of relativism or nihilism. Not so in Europe:
Both these protective restraints ... were absent in those parts of Europe where liberalism was based on French enlightenment. This movement being anti-religious, it imposed no restraint on sceptical speculations; nor were the standards of morality embodied here in democratic institutions [which keep public debate alive and open, challenging the powers-that-be with defiance and the prospect of political change, G.T.]. When a feudal society, dominated by religious authority, was attacked by a radical scepticism, there emerged a liberalism which was unprotected either by a religious or a civic tradition against destruction by the philosophic scepticism to which it owed its origin.
Universal standards of human behaviour having fallen into philosophic disrepute, various substitutes were put forward in their place.
(Ibid. p.123)
The first kind of substitute standard comes in the form of a radical hedonism, according to which the creative genius is entitled to act as
... the renewer of all values and therefore to be incommensurable. This claim was to be extended to whole nations; according to it, each nation had its unique set of values which could not be validly criticized in the light of universal reason. A nation's only obligation was, like that of the unique individual, to realize its own powers. In following the call of its destiny, a nation must allow no other nation to stand in its way.
If you apply this claim for the supremacy of uniqueness - which we may call Romanticism - to single persons, you arrive at a general hostility to society, as exemplified in the anti-conventional and almost extra-territorial attitude of the Continental bohème. If applied to nations, it results on the contrary in the conception of a unique national destiny which claims the absolute allegiance of all its citizens. The national leader combines the advantages of both. He can stand entranced in the admiration of his own uniqueness, while identifying his personal ambitions with the destiny of the nation lying at his feet.
(Ibid. p. 123 - 124)
Romanticism's
... counterpart in systematic thought was constructed by the Hegelian dialectic. Hegel took charge of Universal Reason, emaciated to a ghost by the treatment at the hands of Kant, and clad it with the warm flesh of history. Declared incompetent to judge historic action, reason was given the comfortable position of being immanent in history. An ideal situation: "Heads you lose, tails I win." Identified with the stronger battalions, reason became invincible; but unfortunately also redundant.
(Ibid. p.124)
Marx and Engels arrive at the scene:
The next step was therefore quite naturally the complete disestablishment of reason ... The bigger battalions should be recognized as makers of history in their own right, with reason as a mere apologist of the outcome of class conflicts ...
[A]s new technical equipment becomes available from time to time, it is necessary to change the order of property in favour of a new class, which is invariably achieved by overthrowing the hitherto favoured class. Socialism, it was said, brings these violent changes to a close by establishing the classless society.
Europe becomes inundated with philosophies of violence, and
... the really effective idea of Hitler and Mussolini was their classification of nations into haves and have-nots on the model of Marxian class war. The actions of nations were in this view not determined, nor capable of being judged by right and wrong. [...]
Romanticism had been brutalized and brutality romanticized ... The process of replacing moral ideals by philosophically less vulnerable objectives was carried out in all seriousness. [What is going on] is a real substitution of human appetites and human passions for reason and the ideals of man.
(Ibid. p. 125)
And here is where I disagree with Polanyi, who claims:
We can see now how the philosophies which guided these revolutions and destroyed liberty wherever they prevailed, were originally justified by the anti-authoritarian and sceptical formula of liberty.
(Ibid. p. 125)
Admittedly, it is eerie and truly tragic to see how the liberal impulse has been absorbed into currents that gradually transformed themselves into totalitarian affective patterns and the crude thought that attends them.
However, I do not think, Michael Polanyi is right in accusing liberalism of a pathological self-contradiction, whereby its explosive initial twin aspects of
anti-authoritarianism (in support of the new natural sciences' struggle against dogmatic authorities), and
philosophic doubt (which can hardly be prevented in a world valuing freedom of conscience and expressed thought)
were supposedly bound to stoke up the fires of a culture of radical intolerance. After all, in America and England they did not give rise to any such effect.
How should it have been possible to arrive at the copious blessings of freedom if men had refrained from letting the genies of anti-authoritarianism and philosophic doubt out of the bottle? Also, it is not clear which alternative formula liberalism should have adopted to avoid its putative authorship of totalitarianism. Polanyi does not propose such a formula. I do not think that a misspecification of the fundamental tenets of liberalism has led to the totalitarian excesses of the 20th century. After all, anti-authoritarianism and philosophic doubt are alive and kicking, whereas totalitarianism is dead.
Distressing as the experiences of totalitarianism are, we also have examples of free societies that withstood the totalitarian temptation inside and from without, and they teach us wisdoms we better heed.
Perhaps the most important among these wisdoms advises us to participate in politics, to advance and defend and experience our conceptions of the policies of freedom in the reverberating sphere of public engagement, among friends and strangers, supporters and dissenters. Nothing is less tractable for the despot than a vibrant culture of pluralism.
How was it possible that the liberal impetus of Milton and Locke would be so distorted in Europe as to nourish a "moral inversion" from which eventually issues the totalitarian mindset? And why was the Anglo-American sphere resistant to such "moral inversion?"
Explains Michael Polanyi:
The argument of doubt put forward by Locke in favour of tolerance says that since it is impossible to demonstrate which religion is true, we should admit them all. This implies that we must not impose beliefs that are not demonstrable.
(Ibid. p. 120)
When we extend this conclusion to ethical principles:
It follows that unless ethical principles can be demonstrated with certainty, we should refrain from imposing them and should tolerate their total denial.
But of course, ethical principles cannot be demonstrated: you cannot prove the obligation to tell the truth, to uphold justice and mercy. It would follow therefore that a system of mendacity, lawlessness, and cruelty is to be accepted as an alternative to ethical principles on equal terms. But a society in which unscrupulous propaganda, violence and terror prevail offers no scope for tolerance.
Here the inconsistency of a liberalism based on philosophic doubt becomes apparent: freedom of thought is destroyed by the extension of doubt to the field of traditional ideas.
(Ibid. p. 120 - emphasis added)
When we cannot be sure of the truth of ethical principles and therefore need not heed any, superior strength, ruthlessness and brutality may fill the gap. And surely, this is precisely what happened in the hotbeds of European totalitarianism - Italy, Germany, and Russia.
At a time when - with a vengeance - Europe was accepting "a system of mendacity, lawlessness and cruelty as an alternative to ethical principles," how come this transformation, this "moral inversion" would not lay hold of the Anglo-American world?
The consummation of this destructive process was prevented in the Anglo-American region by an instinctive reluctance to pursue the accepted philosophic premises to their ultimate conclusions.
One way of avoiding this was by pretending that ethical principles could actually be scientifically demonstrated. Locke himself started this train of thought by asserting that good and evil could be identified with pleasure and pain, and suggesting that all ideals of good behaviour are merely maxims of prudence.
However, the utilitarian calculus cannot in fact demonstrate our obligations to ideals which demand serious sacrifices from us. A man's sincerity in professing his ideals is to be measured rather by the lack of prudence which he shows in pursuing them. [...]
I believe the preservation up to this day of Western Civilization along the lines of the Anglo-American tradition of liberty was due to this speculative restraint ...
(Ibid. p. 121)
Polanyi believes that two factors of a cultural and historical nature saved liberalism in the Anglo-American world from the "moral inversion" it suffered in Europe:
The speculative and practical restraints which saved liberalism from self-destruction in the Anglo- American area were due in the first place to the distinctly religious character of this liberalism.
So long as philosophic doubt was applied only in order to secure equal rights to all religions and was prohibited from demanding equal rights also for irreligion, the same restraint would automatically apply in respect to moral beliefs. A scepticism which was kept on short leash for the sake of preserving religious beliefs, would hardly become a menace to fundamental moral principles.
(Ibid. p. 122)
Furthermore, Polanyi stresses the importance of democratic institutions in avoiding a degenerate turn of liberalism:
A second restraint on scepticism ... lay in the establishment of democratic institutions at a time when religious beliefs were still strong. These institutions (for example the American Constitution) gave effect to the moral principles which underlie a free society. The tradition of democracy embodied in these institutions proved strong enough to uphold in practice the moral standards of a free society against any critique which would question their validity.
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