tag:blogger.com,1999:blog-40414597837886185252024-03-15T18:12:43.140-07:00The rule of lawComments about the rule of law, the concept itself, the misconceptions, and its effects on the lives of people. Not meant only for lawyers, but for all those who want to rely on laws and not on the whims of leadersAriel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.comBlogger38125tag:blogger.com,1999:blog-4041459783788618525.post-62053382303998345832023-07-19T12:51:00.005-07:002023-09-03T04:22:24.022-07:00The Iron Lady, film as a hit job<p><br /></p><p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: medium;"> I was reading an article about
Margaret Thatcher by John O'Sullivan when I encountered his
description of her visit to Poland in 1988. He writes that a<span lang="es-ES">s</span>
she left the port of Gdansk in a small boat, <span lang="es-ES">Polish</span>
workers dipped seawards the huge <span lang="es-ES">shipyard </span>cranes in
her honour (<a href="https://hungarianreview.com/article/20200921_after_she_lost_did_margaret_thatcher_win_/" target="_blank">link</a>). Then I thought, what a scene for a film! Yet I remembered
that there was no such scene in <i>The Iron Lady</i>, the 2011 film
about Thatcher's life.</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> When I first saw the film I said
to myself 'That was a hit job'. Certainly, if Meryl Streep was to
play the character of Margaret Thatcher and if the project had
financial support from the British Film Council, it was very likely
that <span lang="es-ES">the picture would not be favourable</span>.
On seeing it again I confirm my first impression but now I see how
skillful<span lang="es-ES">ly</span> it <span lang="es-ES">has been
done</span>. Instead of the too obvious hatchet they used a thin
dagger.
</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> Many found it odd that director
Phyllida Lloyd chose to portra<span lang="es-ES">y</span> The Iron
Lady at the time she was <span lang="es-ES">still living and</span>
suffering from dementia. Indeed, a doctor with no political
sympathies to Margaret Thatcher wrote an article in a leading British
newspaper (<a href="https://www.telegraph.co.uk/news/politics/margaret-thatcher/9013910/The-Iron-Lady-and-Margaret-Thatchers-dementia-Why-this-despicable-film-makes-voyeurs-of-us-all.html" target="_blank">The Telegraph, link</a>), saying that the film was 'despicable'
and made the public 'voyeurs' of the mental decline of an old woman
when she was still alive and ill. He wrote '<span style="color: #323232;"><span>as
a doctor, I have direct experience of the reality of dementia for the
su</span></span><span style="color: black;"><span>ff</span></span><span style="color: #323232;"><span>erer
and their family....As I watched scene after scene showing this once
all-powerful woman as old, bewildered and scared, my discomfort
turned to rage'. </span></span>
</span></p>
<p style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> Nevertheless, by choosing to
portray Thatcher's dementia the director could show, not an Iron Lady
but a woman who does not know what is real and what is not, someone
isolated who rigidly repeats stale phrases and clings to the past. In
short, we see Margaret Thatcher as their enemies like to see her.</span></span></p>
<p style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> From
<span lang="es-ES">Thatcher's</span> old age and dementia the film
makes flashbacks to her youth and time as a Prime Minister. We see
young Margaret looking wistfully <span lang="es-ES">as</span> three
girls pass by and make fun of her. They go to the cinema while she is
sweeping the pavement in front of the family store. She looks at the
girl's jewels, nice shoes and stockings (minute 09.11). The scene is
repeated later in the film when Margaret is already Prime Minister
and overhears members of her cabinet murmuring about her. That makes
her flash back to the scene that apparently still haunts her when
girls derided her for not going to the cinema. </span></span></p><p style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"><span lang="es-ES"> In
fact a</span>nyone who has read Thatcher's memoirs knows that as a
young woman she <span lang="es-ES">frecuently </span>enjoyed going
<span lang="es-ES">with friends </span>to the cinema <span lang="es-ES">(</span><span lang="es-ES"><i>The
Path to Power</i></span><span lang="es-ES"> ps. 14-15)</span>. She
<span lang="es-ES">even mentions that she liked musicals by Fred
Astaire and Ginger Rogers as well as the films of Alexander Korda.
She listed a number of other films and added that she liked actors
Barbara Stanwyck, Ingrid Bergman, Leslie Howard, Merle Oberon, James
Stewart, Robert Donat, and Charles Boyer. Thatcher's biographer
Charles Moore cites many letters that she wrote in her youth that
refer to films she saw with friends. In spite of all that those who
made the </span><span lang="es-ES"><i>The Iron Lady</i></span><span lang="es-ES">
chose to show Thatcher as a woman marked by her early experience of
seeing other girls go to the cinema while she swept the pavement.</span></span></span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #323232;"><span> The thin dagger is put to work
again in a scene where Thatcher preaches austerity to her cabinet
‒'we have to cut
spending'‒ while some
underling sews jewels to her magnificent dress. The camera comes and
goes between the jewels and Thatcher's argument with her ministers.
That is clever, the film does not tell you that Thatcher was
hypocritical, you see that with your own eyes. </span></span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> That
scene was duly prepared by another one taking place in Parliament
where the leader of the opposition, Michael Foot, piles data and
statistics about 'the biggest collapse of industrial production since
1921' and that Thatcher's 'free-market policy ensures that the rich
get richer and the poor are irrelevant' (59.12). The camera shows the
Primer Minister bored and unconcerned about all that. When cabinet
members join the criticism privately and tell her that there is the
perception that the government is 'out of touch with the country',
that 'people can't pay their mortgages', 'industry is practically on
its knees', and 'honest, hard-working people are losing their homes'
(1.01.00). Thatcher's answer is that she knows the price of butter
and margarine. All the while we see that Thatcher is having jewels
sewn to her dress.</span></span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> Apart from hypocricy, the point
is to portray Thatcher as a simple minded woman, not much different
from a poorly educated housewife in her political notions, someone
who thinks that she can dismiss statistics because she knows the
price of margarine. Then we can forget that she had two degrees
‒chemistry and law‒
that she worked in both those fields, and read, among many others,
the works of Lord Macaulay, Churchill, and Hayek ‒a
trio that provides excellent instruction to any statesman.
Moreover, Thatcher had the advice of brilliant men, among others
Keith Joseph, to whom she dedicated her authobiographical book <i>The
Path to Power</i>. It is also worth mentioning Shirley Robin Letwin,
who worked for Thatcher and wrote a insightful book about <i>The
Anathomy of Thatcherism</i>.</span></span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #323232;"><span> However, it is when it comes to
Thatcher's personal motives that the film turns really brutal. For
the job they chose none other than her husband Denis. Again, that was
clever as we must assume that nobody knew Margaret Thatcher's motives
better than her husband. Although there is no evidence for it, Denis
is shown as a cynical critic of his wife, dismissive of any higher
purpose for her actions in cutting remarks sprinkled throughout the
film. </span></span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #323232;"><span> There is a scene in which
Margaret announces she will enter the competition for leader of the
opposition and says that she probably will lose but had to do it as a
duty to force the party to reaffirm its principles. Denis interrups
her and in anger says 'Don't call it duty. It's ambition that's
gotten you this far' (40.00). </span></span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #323232;"><span> A few seconds later in that
scene, Thatcher's daughter Carol is added in support of the same
sordid view. Carol was about to take her test for a driving licence
‒for which her mother has
prepared her‒ and on hearing that she plans to run for the
positon of leader of the opposition she storms away protesting that
her mother is more concerned about her own political career than on
her daughter's approaching test. In truth, Carol Thatcher has always
been a self reliant woman ‒she
is a journalist and a keen traveller but was not afraid of working as
waitress. It is very unlikely that she made such a scene about her
driver's licence test. </span></span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #323232;"><span> Nor
is it likely that Denis was so cynical about her wife's aims. In
Carol Thatcher's autobiographical book <i>A Swim-on Part in the
Goldfish Bowl</i> she writes that the only time she saw her father
cry was when his wife resigned as Prime Minister. Both Carol and
Denis carried on with their lives without carping about the failure
of the head of government to minister to their personal needs. They
were not such wimps. </span></span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> Unconcerned
with truth, the creators of the film inserted scenes where Denis,
already dead, appears as a ghost to chastise his wife. When she
remembers the victory in the Falkland's war Denis mocks her jingoism
(?) making clowinsh gestures and donning a paper hat with the Union
Jack. Then he, or rather his ghost, blows a paper trumpet and tells
her 'Gotcha! Well, that paid off, old girl! Your ratings have soared
from the most hated Prime Minister of all time to the nation's
darling!' (1.18.37). Did Denis think that the war was a stunt to
increase her wife's popularity? For all we know, that was very
unlikely. The film would have been more honest if such view had been
put in the mouth of those who really thought that sending a task
force to the Falklands was meant to “pay off” raising the image
of the Prime Minister. There were some Britons, but not many, who
held that opinion.</span></span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #323232;"><span> In another scene Denis's spectre
is made to visit Margaret to blame her for neglecting him. The
spectre tells Margaret that she was so self-centered that probably
had to ask their house maid to discover that Denis had travelled to
South Africa to recover his health. He says 'Too busy climbing the
greasy pole, MT' (40.29). </span></span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> Denis's death is covered in a
scene in which, in Margaret's imagination, he abandons her. When she
asks him not to leave ‒'I don't
want to be on my own'‒, he retorts 'You will be fine on your
own, you always have been.' (1.35.00). If her own husband reveals to
the audience that she was pure ambition and no heart, we have to
believe it don't we?</span></span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #323232;"><span> Then there is the issue with tea
cups. At the beginning of the film Margaret opens a letter and full
of emotion tells her parents that she won a place at Oxford. Her
mother does not congratulate her, refuses even to look at the letter,
says that her hands are still damp, and returns to wash cups in the
kitchen. One wonders whether that was true, and if so why there were
no rags in the Roberts family home that could be used to dry one's
hands. </span></span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> Certainly many of the scenes in
the film are of a kind that make it impossible to ascertain how close
or how far they are from the truth. According
to a friend of the family (<a href="https://www.cbsnews.com/news/meryl-streep-film-has-margaret-thatchers-family-appalled/" target="_blank">link</a>), both Mark and Carol Thatcher
thought that the film is an appalling left-wing fantasy but decided
no to speak publicly for fear of giving it more publicity.</span></span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> Tea cups turn up again when
Denis proposes marriage to Margaret (26.00). She happily accepts but
warns him that she 'will never be one of those women...remote and
alone in the kitchen doing the washing up...One's life must matter,
Denis...I cannot die washing a tea cup'. Then in the last scene in
the film, Margaret Thatcher is shown old, alone, washing a tea cup.
The final defeat.</span></span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #323232;"><span> I cannot fathom how some people
reviewed the film and claimed that it showed sympathy for Margaret
Thatcher. Certanly there is no open attack on her, apart from showing
the images of protests, the diatribe by Michael Foot, the critical
choir in her cabinet, and above all the cynical remarks that the film
puts in Denis's mouth. But even that last stab, though cruel, is not
so serious as it is less credible. It is with images and scenes that
the film makes its most effective attacks. So they lead people to
find 'their own' conclusions. Thatcher haunted by the memory of her
humiliation by other girls ‒resentful
woman‒, Thatcher
repeating set phrases again and again ‒simpleton
woman‒, Thatcher
preaching austerity and having jewels sewn to her dress
‒hypocritical, detached
from reality. </span></span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #323232;"><span style="font-family: georgia; font-size: medium;"> Be it as it may, does the film
still matter, or even Margaret Thatcher? I think they do matter. The
fight between new Tory leaders and a party bureacracy bent on
administering decay still rages on. Leaks to the press are still used
as against Thatcher, and today perhaps even more effectively.
Besides, the portrait made in a film reaches more people than books. And as the left as always understood, the way a country sees its
past is never irrelevant.</span></span></p>Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-30283844655753647892023-04-29T07:21:00.005-07:002023-04-29T07:38:21.196-07:00Marx's two concessions to subjective economic value<p> <span style="font-size: large;"><span style="font-family: georgia;"> </span><span style="font-family: georgia;">Karl Marx added two qualifications
to a pure theory of labour as the only source of value. In both he
admitted the role of individual preferences. Nevertheless Marx failed
to see the implications of those concessions. I will try to show that
both, which are meant to rescue the theory from obvious objections,
amount in fact to a recognition that his theory is wrong.</span></span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: large;"><span> </span>Marx adopted the theory of value
ready made by Smith, Malthus, and Ricardo. They had just assumed
without much discussion that human labour is the only source of
economic value. <span lang="es-ES">However,</span> Smith never
followed the theory strictly, <span lang="es-ES">Ricardo admited
exceptions, and Malthus later rejected it altogether</span>. The
modern theory that we know under the not entirely satisfactory names
of marginalist or subjective, came just when Marx had given the final
touches to his theory, and apparently he never took notice of it.</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Marx <span lang="es-ES">adopted</span>
the <span lang="es-ES">labour </span>theory <span lang="es-ES">of
value with a dogmatism that was absent in his predecesors</span>.
<span lang="es-ES">S</span>uch theory must have looked attractive to
Marx for two reasons. Hours of labour can be counted, thus seem
proper in a theory that boasted of its scientific precision. They are
not capricious as individual preferences seem to be. And on the
political side, the labour theory of value gave Marx the basis on
which he built his theory of capitalist exploitation.</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Nevertheless, and in spite of
those great advantages, Marx soon found that there are obvious
objections to the idea that labour is the <span lang="es-ES">only
</span>source of economic value.</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: large;"><br />
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><b><span style="font-family: georgia; font-size: large;">The first qualification</span></b></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>First of all, it is patent that
there is no simple relation between hours spent working on an object
and its value. If one worker spends three hours to make a chair and
another finishes exactly the same chair in just an hour, both chairs
will have the same value. No buyer will pay more for the same chair
by being informed that one has taken more time to be made. So Marx
added a qualification to the simple theory: it is not just hours of
labour but the amount of labour that is “socially necessary”
taking into account available technology and average skill.
</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: large;"><span> </span>Marx wrote in the first chapter of
<span lang="es-ES">the first volume of Capital:</span> “The labour
time socially necessary is that required to produce an article under
the normal conditions of <span lang="es-ES">production,</span> and
with the average degree of skill and intensity prevalent at the time”
<span lang="es-ES">(Capital p. 29, I will cite the translation that
can be downloaded for <a href="https://www.marxists.org/archive/marx/works/download/pdf/Capital-Volume-I.pdf" target="_blank">free at marxists.org here</a>)</span></span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Although such qualification
allowed Marx to get rid of the obstacle, it should have led him to
ponder about the source of the objection. Why is that two identical
goods will have identical value regardless of the different amount of
time spent in making each of them? It is a pity that Marx did not
stop to consider such question. The obvious answer is that they have
the same value because they have the same utility for the buyer <span lang="es-ES">—but
that would have lead him to</span> the real source of value.
</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Marx contented himself with such
qualification and went on. However, there appeared a second
objection, this one even more damning, an obstacle that should have
led Marx to abandon his theory altogether instead of trying to prop
it up with a second qualification.</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: large;"><br />
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><b><span style="font-family: georgia; font-size: large;">The second
qualification</span></b></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: large;"> Say some company makes a new car
and that they employ the amount of labour “socially necessary”.
Nevertheless, for whatever reasons the public dislikes the car. It
will not sell at a price that rewards the company for the “socially
necessary” labour employed in making it. Yet Marx had assured us
that “The value of one commodity is to the value of any other, as
the labour time necessary for the production of the one is to that
necessary for the production of the other. As values, all commodities
are only definite masses of congealed labour time” <span lang="es-ES">(p.
29).</span> After reading that, an adviser to the car company comes
with an idea: we should advertise the fact that our factory uses the
amount of labour “socially necessary” according to the average
skill prevalent in industry. Our car has the same congealed
labour-time than that of the competition.
</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>As we know, that won't help a bit.</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>To parry this obvious objection to
his theory Marx was forced to add a second qualification. It is not
enough to produce a good according to the labour time necessary, so
he writes “nothing can have value, without being an object of
utility. <span lang="es-AR">If the thing is useless, so is the labour
contained in it, the labour does not count as labour, and therefore
creates no value” (</span><span lang="es-ES">p. 30</span><span lang="es-AR">).
Marx avoids mentioning people but it is clear that utility is always
utility to somebody, as judged by that somebody. At this point Marx
could have discarded the theory he received as a legacy from Smith,
Malthus, and Ricardo and could have formulated a better one, that
value comes from the utility that goods provide to individuals, and
that such utility must be acknowledged by them (rightly or wrongly),
otherwise it will have no economic relevance. </span>
</span></p>
<p lang="es-AR" style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Nevertheless, Marx
clinged on to the old school. He considered himself a serious
scientist and was used to counting average labour hours. Individual
choices seemed too frivolous. He also considered himself a
revolutionary and by ditching the old theory of value he would have
lost the basis for his theory of capitalist exploitation.</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Now and then Marx
provided hints that should have led anyone, including him, to
recognize his error. About manufactures he wrote “the product must
be not only useful, but useful to others” (p. 48). I would add that
it is plain that if the product is made for sale, useful and useful
to others are not different things. And about the exchange of commodities
Marx wrote “the labour spent upon them counts effectively only in
so far as it is spent in a form that is useful for others. Whether
that labour is useful for others and its product consequently of
satisfying the wants of others, can be proved only by the act of
exchange” (p. 60).</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>So Marx was very
close to the true theory of value but he skillfully avoided it. He
used averages to deny that different things were different, rehashed
Aristotelian arguments to “prove” that exchange requires a common
element (spent labour) in commodities, and rejected facts that
contradicted his definition of value on the authority of that very
definition. As an example of that last trick, we see that though he
admited that people pay a price for uncultivated land, he declared
that such land has no value. Why not? Because it would contradict his
definition of value, according to which labour is the source of
value.</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>That curious, even
desperate, argument about uncultivated land would lead us to the
point where Marx made his initial mistake. It was the same mistake
made by Malthus before him.</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: large;"><br />
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><b><span style="font-family: georgia; font-size: large;">Marx's error was not
even original</span></b></p>
<p lang="es-ES" style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Marx wrote that “A
thing can be a use-value, without having value. This is the case
whenever its utility to man is not due to labour, such as air, virgin
soil, natural meadows” (p. 30).</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Here Marx mixed up
things badly. Air is indispensable to life but has no economic value
precisely because it does not need <i>economizing</i>, it is not
scarce —tough
it would be different in a community that lived under water. However,
virgin soil and natural meadows are scarce, there are not unlimited
extensions of them, they are useful but scarce, they need
<i>economizing</i>, that is why —in
spite of Marx— they do
have economic value.
</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span lang="es-ES"><span> </span>Well before
Marx, Malthus had made the same mistake but he fell into it only in
passing and in a few remarks limited to air. Moreover, in the second edition of his
Principles of Political Economy, Malthus rejected the theory
altogether (the book can be <a href="https://oll.libertyfund.org/title/malthus-principles-of-political-economy" target="_blank">downloaded for free here</a>). Marx instead deepened the
mistake and built an entire doctrine upon it. Malthus had tried to
explain why certain things like air, though useful, have no economic
value. He wrote that this is because we do not have to expend labour
in order to enjoy them. To be precise, Malthus should have said that
as air is not scarce, we do not have to expend labour in order to
have it. That slight lack of precision (later corrected by Malthus)
was made far worse by Marx, who following blindly the consequences of
Malthus' initial error added “virgin soil¨ and “natural meadows”
as things that have no economic value. He should have noticed that
although people do not purchase air (unless we think of people going under water), virgin soil is sold and bought regularly. There have
been wars for land, but not wars for air. </span>
</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span lang="es-ES"><span> </span>Marx surely saw
that facts contradicted his theory so he tried to counter the
objetion by writing that prices of uncultivated land are “imaginary,
like certain quantities in mathematics”. Marx himself must have
seen that this way of explaining away facts was unsatisfactory so he
added that such imaginary prices “</span>may sometimes
conceal either a direct or indirect real value-<span>r</span>elation;
for instance, the price of uncultivated land, which is without value,
because no human labour has been incorporated in it” <span lang="es-ES">(ps.
70-71). </span>
</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span lang="es-ES"><span> </span>With
this Marx did not explain how is that virgin soil has a price but no
value, he only ofuscated the issue by suggesting that there might be
</span><span lang="es-ES">—</span><span lang="es-ES">sometimes</span><span lang="es-ES">—</span><span lang="es-ES">
some relation, even a direct one, to a real value. What was the
nature of such “concealed” relation, and how the “relation to a
value” differed from a plain “value”, he did not dared to
explain. </span>
</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span lang="es-ES"><span> </span>Certainly,
the difference cannot be based on the fact that uncultivated land may
play a role in the production of wheat and bread because that is also
the role of steam engines and of every good that is used in the
production of other goods. And Marx never said that only final goods
have value. </span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: large;"><span> </span>So in spite
of his references to imaginary quantities and to concealed relations,
Marx failed to explain why he declared that uncultivated land has
price but no value. The issue posed a danger to the theory so it was
prudent to keep it concealed in mist.</span></p>
<p style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span lang="es-ES"><span> </span>In truth, the
key is not average labour time but the all too common scarcity of
useful things, the fact that there is not enough of some good so that
it can be enjoyed freely and without limit by everyone. The key is
the need to </span><span lang="es-ES"><i>economize</i></span><span lang="es-ES">
such useful goods. Actually, that is what gives rise to economics as
a science. </span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0in;"> <span style="font-family: georgia; font-size: large;"><span> </span>Unfortunately, Marx
made that fundamental mistake at the beginning of his reasoning and
on top of it he based his theory of capitalistic exploitation. Certainly, in
spite of its flaws the labour theory of value remains powerful
today, not for the strength of the reasoning that sustains it, but
because of the services it provides in the political struggle.
Indeed, there have been marxist academics like G. A. Cohen ready
to ditch the labour theory of value and still keep the marxist brand
name. Which is like trying to plant a tree without its roots.</span></p>
<p style="margin-bottom: 0in;"> <span lang="es-ES"><span style="font-family: georgia; font-size: large;"><span> </span>Marx's theory
of value is not the only part of his system that shows unmerited
persistence. More than a century ago Eugene Böhm-Bawerk demonstrated
that Marx's theory about the rates of profit in different branches of
industry is wrong. On the political side, there is also the notion of
a “dictatorship of the proletariat”, which is almost a
contradiction in terms. Nevertheless, it has been very useful to
dictators, their coteries, and fellow travellers, to justify their
oppresion.</span></span></p>Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com1tag:blogger.com,1999:blog-4041459783788618525.post-74769740999765272932022-09-30T12:44:00.007-07:002023-11-05T12:16:55.650-08:00Mariana Mazzucato's political theory of economic value<div style="text-align: left;"><span style="font-size: medium;"> <span style="font-family: georgia;"> Professor Mariana Mazzucato is everywhere. According to the Wikipedia, she teaches Economics of Innovation and Public Value at University College London, she chairs the WHO Council on the Ec</span><span style="color: black; font-family: georgia;">onomics of Health for All, is member of </span><span style="color: black; font-family: georgia;">the Scottish Government's Council of Economic Advisers,</span><span style="color: black; font-family: georgia;"> the </span><span style="color: #202122; font-family: georgia;">South African President's Economic Advisory Council, and the United Nations' High-Level Advisory Board on Economic and Social Affairs. She has been advisor of the Italian, Swedish, and Brazilian governments, the British Labour Party, the OECD, the World Economic Forum, and the European Union, among others. Apart from a number of books, she publishes her opinions in The New York Times, the Guardian and the Financial Times. In 2022 she was a speaker at the World Trade Organization in Geneva and the World Economic Forum in Davos.</span></span></div><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> She has received the Leontief Award For Advancing the Frontiers of Economic Thought, an All European Academies Award, the von Neumann Award, the Grand Ufficiale Ordine al Merito della Repubblica Italiana, and honorary doctorates from many universities (among them the Argentine Universidad de San Martín).</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> And Pope Francis cites her work with admiration.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> Nevertheless professor Mazzucato defines herself as outside the mainstream (?). She advocates a bigger role of governments in the economy, which perhaps is music not entirely disagreeable to the institutions she advises.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> In books like </span><span style="color: #202122;"><i>The Entrepreneurial State </i></span><span style="color: #202122;">and</span><span style="color: #202122;"><i> Rethinking Capitalism </i></span><span style="color: #202122;">she describes government as a main source of technological innovation and prosperity </span><span style="color: #202122;">―</span><span style="color: #202122;">she even condemns outsourcing tasks to private companies. In her latest book </span><span style="color: #202122;"><i>Mission Economy </i></span><span style="color: #202122;">she writes that governments must shrug off traditional budgetary parsimony and assume missions modeled on the Apollo moon landing. She selects three main tasks for a government's mission: a Green New Deal, health care, and narrowing “the digital divide”.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><br /></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><b>The root of all problems <span lang="es-AR">(according to Mazzucato)</span></b></span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> But it is in her book </span><span style="color: #202122;"><i>The Value of Everything</i></span><span style="color: #202122;"> that Mazzucato deals with the deeper source of all the failures she attributes to modern capitalism: the very concept of economic value. She is convinced that without challenging mainstream notions about value all efforts will lack substance and will end in mere patches.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> The first chapters of the book set the scene for the rest. There Mazzucato tells the history of the various theories about economic value, starting with the oldest and finishing with the marginalists, the modern theory of value.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> Mazzucato tells us “<i>This book does not try to argue for any theory of value</i>” (p. 18). Nevertheless she makes a very positive description of Marx's theory and a very negative account of <span lang="es-ES">those who succesfully challenged it, </span>the marginalists. What is more, in her treatment of Marx<span lang="es-ES">'s</span> theory of value she omits obvious objections to it and does not even mention well known refutations, like the famous one written by Bohm-Bawerk (one of the ten greatest economists in history according to Joseph Schumpeter). On the other hand, the chapter Mazzucato dedicates to the marginalists is full of disparaging remarks. In subsequent chapters she connects marginalism with the subprime mortgage crisis of 2008, the growth of what she calls “casino capitalism”, excessive salaries for managers, and growing inequalities of wealth.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Already in the Introduction Mazzucato writes that “</span><span style="color: #202122;"><i>I will argue that the way the word </i></span><i>‘value’ is used in modern economics has made it easier for value-extracting activities to masquerade as value-creating activities. And in the process rents (unearned income) get confused with profits (earned income); inequality rises, and investment in the real economy falls</i>”. Along the book she castigates modern capitalism and puts the blame on the modern theory of value.</span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"><span lang="es-ES"> Nevertheless, she says that her purpose is not to defend any theory but to promote debate. In spite of such disclaimers, i</span></span><span style="color: #202122;">t is perplexing to find that </span><span style="color: #202122;"><span lang="es-ES">someone writes</span></span><span style="color: #202122;"> a whole book on the theories of economic value, blames the modern one for all sorts of calamities, but declares to have no definite preference for any theory. Worse, for someone who just wants to revive debate, it is odd that Mazzucato omits references to views that oppose her own. That approach is not limited to this book. For instance, as we will see later, Matt Ridely's book </span><span style="color: #202122;"><i>How Innovation Works</i></span><span style="color: #202122;"> makes significant objections to the role Mazzucato assigns to governments concerning innovation. The author and the book are very well known. Still, in her most recent book and in her many speeches on the Web Mazzucato does not even mention them.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><span lang="es-ES"> She follows the same tactic in her treatment of the subprime mortage crisis of 2008, for which she blames the private financial sector. S</span>he does not mention the many authors that point out the part of the blame that corresponds to governments.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><br /></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><b>The marginalists as defenders of privilege</b></span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Mazzucato puts the emergence of the modern (or "marginalist") theory of value in what she considers to be its historical context and purpose. She writes that by the end of the XIX century socialists became more and more influential, Marx and Engels challenged those who “</span><span style="color: #202122;"><i>had no proper </i></span><i>analysis of why things were going wrong</i>”. <span style="color: #202122;"><span lang="es-ES">Unions</span></span><span style="color: #202122;"> grew stronger. In Britain, the Labour Party was founded, in Germany the Socialist Workers' Party, and in France the Federation of Socialist Workers. Then she writes “</span><span style="color: #202122;"><i>Faced with these threats to the status quo, the powers that be needed a new theory of value that cast them in a more favourable light” </i></span><span style="color: #202122;">(p. 58)</span><span style="color: #202122;"><i> . </i></span><span style="color: #202122;">In case those words were not enough to prepare the reader for the arrival of the new theory, on the same page Mazzucato adds “</span><span style="color: #202122;"><i>Above all, perhaps, the rising power of capitalists in a society long dominated by aristocratic landowners and local gentry meant that a new analysis of capitalism was required to justify their standing</i></span><span style="color: #202122;">”.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Then Mazzucato proceeds to describe the theories of the economists that would pop up around 1870 to satisfy that nee</span><span style="color: #202122;"><span lang="es-ES">d</span></span><span style="color: #202122;">, Leon Walras in Switzerland, Stanley Jevons in Britain, and Carl Menger in Austria. Mazzucato follows the standard procedure of lumping together these three economists, although they show differences that are not limited to the use of mathematics. </span><span style="color: #202122;"><span lang="es-ES">T</span></span><span style="color: #202122;">hat unfortunate starting point is followed by more confusion. Mazzucato links the new theory </span><span style="color: #202122;">―</span><span style="color: #202122;">marginalism</span><span style="color: #202122;">―</span><span style="color: #202122;"> to a long tradition in which she </span><span style="color: #202122;"><span lang="es-ES">includes</span></span><span style="color: #202122;"> the medieval theory of the “just price” and Jeremy Bentham's utilitarian principle of the greatest </span><span style="color: #202122;"><span lang="es-ES">good</span></span><span style="color: #202122;"> </span><span style="color: #202122;"><span lang="es-ES">for</span></span><span style="color: #202122;"> the greatest number (ps. 60-61).</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Now to clarify: although Jevons cites Bentham with admiration, neither the medieval </span><span style="color: #202122;"><span lang="es-AR">“</span></span><span style="color: #202122;"><span lang="en-US">just price” nor utilitarianism</span></span><span style="color: #202122;"> has anything to do with marginalism and in many respects both are incompatible with the new theory. At the center of the marginalist revolution is the idea that individuals are the ones who judge and get value from goods, that there is no such thing as a collective utility to be decided by a coterie of experts. Certainly, a bridge may be valuable to a large number of people both directly and indirectly, but then that is </span><span style="color: #202122;"><i>all</i></span><span style="color: #202122;"> the value it has. A bridge that serves nobody apart from “the fatherland” and some government's notion of prestige has no economic value.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> But Mazzucato does something worse than provide erroneous historical influences, she reverses the meaning of what the marginalists actually wrote. Through the book she repeats again and again that according to marginalist theory “</span><span style="color: #202122;"><i>price determines value, not vice versa</i></span><span style="color: #202122;">” (p. 66). Already in the Introduction Mazzucato says that the modern theory was “</span><span style="color: #202122;"><i>a swing from value determining price to price determining value</i></span><span style="color: #202122;">” (p. 7, similar statements in pages 8, 271, 272, 273).</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Actually, the new theorists said the opposite of what Mazzucato attributes to them. Carl Menger wrote in one of the most famous books in economics history that “</span><span style="color: #202122;"><i>the price of a good is a consequence of its value to economizing men, and the magnitude of its price is always determined by the magnitude of its value</i></span><span style="color: #202122;">” (Menger </span><span style="color: #202122;"><i>Principles</i></span><span style="color: #202122;">, p. 173).</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><br /></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"><b>What really was the new theory</b></span><span style="color: #202122;">?</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> The new theory rejected that value is a property of goods themselves, like the amount of labour employed on them. Instead the marginalists related the value of goods to the people who supposedly are to use or enjoy them. They wrote that when men realize that a good or a number of them are necessary for their well-being, and when they perceive that such goods are scarce, i.e. that losing one or more would mean that some needs won't be satisfied, then they </span><span style="color: #202122;"><i>economize</i></span><span style="color: #202122;"> such goods, which for that reason are </span><span style="color: #202122;">―</span><span style="color: #202122;">unlike air</span><span style="color: #202122;">―</span><span style="color: #202122;"> economic goods. Or in other words, that they have economic value.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> As Carl Menger wrote in 1871 “</span><span style="color: #202122;"><i>Value is thus the importance that individual goods or quantities of goods attain for us because we are conscious of being dependent on command of them for the satisfaction of our needs</i></span><span style="color: #202122;">” (</span><span style="color: #202122;"><i>Principles</i></span><span style="color: #202122;"> p. 115). Then value is necessarily value for some individual, and changes with an individual's circumstances and needs. Lost in a desert he would value a bottle of water as his most valuable good, but he would not care about it if he is close to an abundant fountain.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> The word “marginalist” thought traditionally used to name the new theory is somewhat confusing because it refers to a corollary of the theory and not to the central theses mentioned above. For that reason sometimes the name “subjective” theory is used in order to stress that value is always value for an individual subject. Unfortunately “subjective” suggest caprice and arbitrariness which according to Menger is not part of the theory ―although some other thinkers would say so. Certainly abundance of goods may allow people to become capricious consumers and there is always the possibility of error in the appreciation of the usefulness of goods. But the central point is that value is always value to individuals in individual circumstances as they are able (or not) to recognize. It doesn't make sense to consider the value of goods in the abstract unrelated to persons, their needs, and their choices. That was the mistake of the old theories.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> The marginal theory of value does not assume that people have perfect knowledge and always make correct judgments. That is a straw-man often used to make the task of its adversaries ―like Mazzucato― easier. Carl Menger even treats the case of fake remedies and love potions, and more fundamentally dedicated a whole section of his <i>Principles</i> to “Time and Error” where he analyzed various production processes and said that economic judgment often requires thinking about the future, which is always uncertain.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> It is true that economists have occasionally pondered about the advantages of perfect knowledge, perfect competition, and other imaginary situations. They concluded that if we were perfect thinking machines with infinite knowledge about the present and the future, we would make perfect decisions. That is at best a tautology that adds nothing to our understanding and in no way is required by the marginalist theory of value. Nor does it serve to advocate more government intervention, unless we think that ministers and councils have infinite knowledge of present and future.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><br /></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"><b>Who started the debate <span lang="es-AR">about value</span>?</b></span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Piling more bad consequences against the new marginalist theory, Mazzucato says that because of it economists have ceased to discuss value, which used to be at the core of economic thinking (Preface XVIII). But in fact the marginalists were the ones that initiated the debate about value ―and they won it. Before them the labour theory of value had been accepted without any serious challenge. Indeed, I suspect that it was adopted by Malthus and Smith almost by accident in their commendable but misguided effort to limit the notion of economic value. Carl Menger tr<span lang="es-ES">aces</span> back that wrong turn in Malthus, a turn that might have seemed to solve a theoretical mistake but created another one that had lasting consequences.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> In 1820 Malthus published the first edition of his book “<i>Principles of Political Economy</i>” in which he defined wealth as “<i>those material objects which are necessary, useful, or agreeable to mankind</i>”. That definition was both too narrow and too broad. Too narrow because it excluded services, and too broad because it included non-economic goods like air. Nobody denies that air is useful, indeed indispensable to life, but it does not need <i>economizing. </i>We don't need to care about how much air we breath and so, although valuable in a broad sense, air has no economic value. Seven years later Malthus tried to correct that second mistake ―although he persisted in the first one, in limiting value to objects.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> In his book “<i>Definitions in Political Economy</i>” <span lang="es-ES">Malthus</span> assigned value to “<i>the material objects, necessary, useful or agreeable to man, which required some portion of human exertion to appropriate or produce</i>”. In the second edition of his “<i>Principles</i>” Malthus wrote that “<i>the latter part was added, in order to exclude air, light, rain, etc”. </i>Menger tells us that Malthus himself recognized that this way of restricting the definition was unsatisfactory and that he tried other paths in later books, but failing again to elaborate a correct definition (Menger <i>Principles</i> p. 291). <span lang="es-AR">Leon Walras, another pioneer of the modern theory of value at the second half of the XIX century, tells us that Adam Smith too, like Malthus, offered only hesitant remarks that put labour as the sole source of value but contradicted those remarks when he included land along labour as social wealth (Leon Walras </span><span lang="es-AR"><i>Elements of Theoretical Economics</i></span><span lang="es-AR">, parag. 158).</span></span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> That is why I think that the labour theory of value first appeared as an unfortunate effort to mend a definition that was too broad but without much debate or analysis of the issue. <span lang="es-ES">Later on</span>, Karl Marx saw in it an opportunity, a bedrock on which to build his theory of exploitation. <span lang="es-AR">Still,</span> he never considered alternatives, never dared question whether the foundation he found ready-made by Smith was solid. The marginalists Jevons, Menger and Walras were the ones that independently of each other challenged those assumptions and analyzed the whole issue. And now, more than a century later Mariana Mazzucato blames them for the lack of debate about the source of economic value (ps. 12, 76). Sure, the same way Copernicus is to blame for the lack of debate about whether the sun goes around the earth or the earth around the sun.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><br /></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><b>Collective creation does not require collective direction</b></span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Mazzucato writes that value is a collective creation and so it is the innovation that promotes progress. (ps. 160, 184, 185, 191, 222). From that she argues for a fairer collective distribution of profits and an entrepreneurial State.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Once again Mazzucato confuses the real question, which leads her to the wrong answers. Staunch defenders of free markets have always recognized that valuable goods are the result of collective efforts. What they deny is that this effort is or should be collectively directed.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> We must recall here the instructive story of how a pencil is made. It was first told in an essay by Leonard Read and it has been fondly repeated by Milton Friedman and many other champions of economic freedom. In the story, a pencil tells us: nobody knows how to make me. Those who fell trees to get the wood from which I am partly made know nothing about mining lead. And neither <span lang="es-ES">miners nor lumberjacks </span>know or care about how the paint that covers my body is made. None of them have the faintest idea about the work of those who make the rubber tip attached on me as eraser. Or about the construction of the trains and the ships that carry those raw materials from the place where they are produced to the place where I will be assembled.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> It is no news to tell defenders of free markets that production, even of humble pencils, involve collective efforts. What Leonard Read and Milton Friedman tried to show is that the process is not directed and <i>that</i> precisely is what makes it efficient, even possible.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> The story of the pencil should prove to everybody something that is seen everywhere in reality but nevertheless looks counter-intuitive. How is it possible that a complex production process works when nobody directs it? Indeed, how is it that the absence of direction is what makes it possible?</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> Mazzucato is not interested in these questions and has no time for a humble pencil. It was Carl Menger who in 1883 posed those questions in his book <i>Investigations into the Method of the Social Sciences with Special Reference to Economics. </i>There he showed how money and markets originated in the past without any direction from above. So Menger wasn't simply one of the earliest in challenging wrong theories of value, he was a pioneer in revealing the pervasive presence of spontaneous order in the economy. Later on, Friedrich Hayek and Ludwig von Mises followed in his tracks.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"> Mazzucato chooses to skip all that. She goes on to apply her collectivistic approach to innovation and from there she ―again― castigates high private profits and argues for more government. Here too the true question is not whether technical and scientific innovation are collective efforts but whether they are or should be collectively directed. Matt Ridley has written a book, <i>How Innovation woks, and Why it Flourishes in Freedom, </i>were he describes how ideas combine in unexpected ways to foster innovation without a central direction. Ridley says that as in the pencil story “<i>One person may make a technological breakthrough, another work out how to manufacture it and a third how to make it cheap enough to catch on. All are part of the innovation process and none of them knows how to achieve the whole innovation</i>” (p. 256).</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> In chapter 9 Ridley makes objections to Mazzucato's views on innovation. First, if government plays a central role in it, how is that the Industrial Revolution took place at a time when government had a negligible role in research and technical innovation? Ridley admits that “<i>In the second half of the twentieth century, the state did become a sponsor of innovation on a large scale, but that is hardly surprising given that it went from spending 10 per cent of national income to 40 per cent in almost all Western countries. As Mingardi put it: ‘With such extraordinary growth, it is improbable that public spending wouldn’t end up in the neighborhood of innovation-producing business at one point or another.’ So it is not a matter of whether the state has caused some innovation. The question is whether it is better at doing so than other actors, and whether it does so in a directed fashion”</i>(p. xxx)</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> Secondly, Ridley points out that “<i>Mazzucato’s examples of government-funded innovation are mostly cases of ‘spillover’, rather than direction. Nobody has claimed that government set out deliberately to create a global internet when it funded the Defense Advanced Research Projects Agency’s computer networking. Indeed, the internet only took off when it eventually escaped the clutches of the Defense Department and was embraced by universities and businesses</i>” (ps. 276-277).</span></span></p><p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> Moreover, says Ridley, the Soviet Union was <span lang="en-US">a </span>clear case of entrepreneurial state that founded a great deal of research and allowed virtually no private entreprise. The result was dismal lack of innovation in almost all sectors.</span></span></p><p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> Ridley's book was published in 2020. <span lang="en-US">The same year, McCloskey and Mingardi published a direct challenge to Mazzucato's theses “</span><span lang="en-US"><i>The Myth of the Entrepreneurial State</i></span><span lang="en-US">”. However, when in 2021 </span>Mazzucato published a new book “<i>Mission Economy. </i><span lang="en-US"><i>A Moonshot Guide to Changing Capitalism</i></span><span lang="es-AR">” s</span><span lang="en-US">he gave no answer to any of these objections, she didn't even mention these authors. As said, for someone who claims to have a vivid interest in fostering public debate, Mazzucato has an odd tendency to avoid any reference to different views.</span></span></span></p><p lang="en-US" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><br /></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"><span lang="es-AR"><b>The political theory of value</b></span><span lang="es-AR"></span></span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><span lang="es-AR"> When Mazzucato writes that value is a collective creation she does not mean merely that, as in the pencil story, lots of people intervene in the production of valuable things and services. </span><span lang="en-US">She means that the creation of value must be politically directed. And at times it seems</span><span lang="es-AR"> she </span><span lang="en-US">also </span><span lang="es-AR">means that the very concept of economic value is a collective creation. At the beginning of the book she writes “</span><span lang="es-AR"><i>The definition of value is always as much about politics, and about particular views on how society ought to be constructed, as it is about narrowly defined economics</i></span><span lang="en-US">” (p. 14). But then, what should we believe, politics or economics? For my part I would say that the labour theory of value was as wrong in Adam Smith's time as it was in ancient Egypt. No matter their political convictions, at no time people asked how much labour a thing had demanded in order to establish its usefulness. If someone digs a hole in search for water and finds none, he would not be able to sell the hole by pointing out that it demanded a lot of work. That was true in ancient Egypt as it is today. That is what modern theory of value says and it has nothing to do with politics.</span></span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><span lang="en-US"> As we noted before, one of the problems with Mazzucato's book is that it contains disclaimers that she immediately discards. She says that she is not arguing for one theory of value (p. 18). Well no, only arguing that Marx's theory was extraordinary in its insight that capitalism is dynamic, that Marx is the first to give capital a social dimension (p. 49), that Marx “</span><span lang="en-US"><i>introduced a powerful new idea which has informed thinking ever since: class struggle</i></span><span lang="en-US">” (p. 51), that Marx was “</span><span lang="en-US"><i>acute in his understanding of the capacity of technology to transform society”</i></span><span lang="en-US"> (p. 52), that “</span><span lang="en-US"><i>In Marx's hands, value theory became a powerful tool for analysing society</i></span><span lang="en-US">” (p. 57). All glowing marks for Marx.</span></span></span></p><p lang="en-US" style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> As we saw, when Mazzucato turns to those who challenged Marx, she introduces them by saying that the powers that be needed a justification for their privileges. Not a brilliant presentation. Then she goes on in many chapters blaming the new theory for almost all economic troubles, theoretical inaccuracies, and social injustice. It would have been much more useful if Mazzucato had disclosed her views and defended a theory of value openly.</span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><span lang="en-US"> In another disclaimer Mazzucato declares that </span><span lang="es-AR">“</span><span lang="en-US"><i>the point is not to create a stark divide, labelling some activities as productive and categorizing others as unproductive rent-seeking</i></span><span lang="en-US">”. But then she immediately adds “</span><span lang="en-US"><i>I believe we must instead be more forthright in linking our understanding of value creation to the way in which activities (whether in the financial sector or the real economy) should be structured, and how this is connected to the distribution of the rewards generated. Only in this way will the current narrative about value creation be subject to greater scrutiny, and statements such as ‘I am a wealth creator’ measured against credible ideas about where that wealth comes from</i></span><span lang="en-US">” (p. 14). If she won't label some to be inside and others outside the “production boundary” how would she know which sector needs “structuring”? And how does she “subject to greater scrutiny” claims about value creation if she won't categorize some as falling on the wrong side of the boundary? Indeed, she does exactly what she says she won't do when she writes that today the financial sector lies outside the production boundary (p. 19).</span></span></span></p><p lang="en-US" style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"> Besides, if Mazzucato doesn't want a stark divide, why is she concerned that the marginalists blurred a production boundary so neatly established before them? (p. 15).</span></span></p><p lang="en-US" style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><br /></span></p><p lang="es-ES" style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><b><span lang="en-US">Is economic value to be defined by referendum, or by committee, or by each individual?</span></b></span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><span lang="es-ES"> Mazzucato says that people should publicly debate who creates value in the economy, thus making everyone participate in a controversy that before was limited to </span><span lang="en-US">experts</span><span lang="es-ES">. </span><span lang="en-US">We must assume that she means debate not just for the sport of it but to adopt decisions.</span></span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><span style="color: #202122;"><span lang="es-ES"> Any country that follows that advice (and it seems that there are many people in high positions </span><span lang="es-AR">eager</span><span lang="es-ES"> </span><span lang="es-AR">to</span><span lang="es-ES"> </span><span lang="es-AR">adopt it</span><span lang="es-ES">) </span><span lang="es-AR">will have to establish a political procedure to decide questions </span><span lang="en-US">about value</span><span lang="es-AR">. Maybe a referendum with a form where people would tick what sectors in the economy they see as value creators. Then governments would have to decide the fate of those left outside. Or, what is more likely, a council of experts would advice ministers and legislators where to trace the “production boundary” </span><span lang="en-US">and its consequences</span><span lang="es-AR">. Or perhaps the question would be deferred to international organizations that would issue regulations to member countries. In any case, it would then be a political decision about what is economic value.</span></span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><span lang="es-AR"> That would be a regression to ancient times. In modern times politicians do not decide what professions are worthy of respect, who produces valuable things, and who must be seen as leechers extracting value from the masses of toilers. Not even majorities are asked to decide such things. Concerning economic value, each adult is his sovereign, and the 51 </span><span lang="en-US">percent</span><span lang="es-AR"> does not rule over the 49 </span><span lang="en-US">percent.</span><span lang="es-AR"> </span><span lang="en-US">Where that principle is lost, there is no longer economic freedom.</span></span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><span lang="en-US"><br /></span></span></span></p><p style="margin-bottom: 0in;"><span style="color: #202122;"><span style="font-family: georgia; font-size: medium;"><span lang="en-US">Note: book pages refer to Kindle editions of the books I cite, except for Menger <i>Principles</i>, in which case I cite the Mises Institute paper edition. Kindle pagination should correspond to that of the paper edition but there might be slight differences.</span></span></span></p>Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-6967433353179921482021-04-28T13:46:00.012-07:002021-11-12T02:36:04.194-08:00Stanley Fish against George Orwell on Politics and Language<p><br /></p><p> <span style="font-family: georgia; font-size: medium;"> I was surprised when I found that the
American academic Stanley Fish described Orwell's famous article
“<a href="https://www.orwell.ru/library/essays/politics/english/e_polit/" target="_blank">Politics and the English Language</a>” as “perhaps the worst essay
ever written by a major figure”. Fish made his remark at the beginning
of a debate that can be seen on YouTube (link at the end of this
article).</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> Orwell's essay has been cited thousands
of times as a masterpiece. In it, Orwell provided examples taken from
British books and newspapers that show how stale phrases and abstract
language can be used to distort facts and hide the truth (link at the
end of this article). It introduced many of the ideas that later
Orwell developed in <i>1984</i>.</span></p>
<p style="margin-bottom: 0in;"><b style="font-size: large;"><span style="font-family: georgia;">Stanley Fish's caricature</span></b></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia;"> <span style="font-size: medium;"> After the host finished presentations,
Stanley Fish mounts his attack (starts at 6.30 in the video).
</span></span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> Fish, a linguist who lectures on law,
hate speech, and university politics <span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>among
other issues<span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>
and whose contributions <span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>according
to the Wikipedia<span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>
decorate the editorial pages of the New York Times and the Wall
Street Journal, tells us that “nothing is sillier” than Orwell's
essay. Fish adds that it was “not only linguistically naive and
philosophically inept but was absolutely racist through and through”.</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> He chastises Orwell for saying that
language had been infected by politics and citing Soviet Russia,
Fascist Italy, and Nazi Germany as instances of that disease. Orwell
feared that this <span lang="es-ES">disease</span> <span lang="es-ES">was</span>
infect<span lang="es-ES">ing</span> the English language. <span lang="es-ES">According
to Fish, </span>Orwell's advice was to use only good Anglo-Saxon
words and avoid borrowing from French and Italian. That is something
that the English <span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>Fish
adds<span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>
have been saying for 800 years, namely, that the French and Italian
stand for effeminate decadence. Fish says that Orwell told his
readers not to use words, to think without words as far as possible,
and put into words thoughts that have been fully formed. By this time
the audience seems very amused and laughs at Orwell's naive solution:
think in pictures, to which Fish retorts “pictures of what?” He
asserts that objects are distinguished from each other only within a language,
so even if you use pictures, you rely on a system of language. To
complete his caricature of the article, Fish mocks the “English
antidote” to the <span lang="es-ES">ill</span> that caused Orwell's
concern. Fish finds it in Johnathan Swift's Gulliver Travels, in
which we are told about a curious country where people try to avoid
words and therefore carry with them bags with objects so that when
they have to refer to them, they pick them out and just showed the
objects to other people. By this time the audience laughs loud.</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> The other academic in the debate, the
linguist and English literature professor John McWorther, does not
join the general merriment but apart from looking down when Fish
makes his attack on Orwell, he does not contradict any part of it.</span></p>
<p style="margin-bottom: 0in;"><b style="font-size: large;"><span style="font-family: georgia;">The charge that the essay is “racist
through and trough”</span></b></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia;"> <span style="font-size: medium;"> It seems that at the beginning of the
XXI century, a progressive American academic cannot make a point
without adding the charge of racism to his arguments. But think a
bit: the English race <span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>if
there is such thing<span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>
is not so different from the German race <span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>if
there is such thing. It is difficult to assume, as Fish does, that
Orwell had a <i>racial</i> prejudice against other white European
people. But more importantly, Orwell does not put the blame for bad
English on foreign influence. Right on the second paragraph of the
essay he writes that English has become “ugly and inaccurate
because our thoughts are foolish, but the slovenliness of our
language makes it easier for us to have foolish thoughts.” He adds
that “As soon as certain topics are raised, the concrete melts into
the abstract and no one seems able to think of turns of speech that
are not hackneyed”. That is according to Orwell the main reason for
bad English, not effeminate European words.
</span></span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia;"> <span style="font-size: medium;"> Then Orwell enumerates four key
defects: dying metaphors, operators or verbal false limbs,
pretentious diction, and meaningless words. Orwell only mentions
borrowing from other languages <span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>including
Latin<span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>
as one of the many ways in which one incurs the third fault,
pretentious diction. One might say the same thing about German writers
borrowing from English or academics using unnecessary jargon.
</span></span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia;"> <span style="font-size: medium;"> In one of the most interesting parts of
his essay Orwell shows how a paragraph in good English can be
translated into bad English. And he admits that perhaps he himself
would have used the bad version, simply because it is easier. None of
that is a property of this or that language, or of race.</span></span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> So the charge of racism is silly <span lang="es-ES">(</span>to
use Fish's <span lang="es-ES">adjective).</span> Moreover, if Fish or
people in the audience had had any interest in Orwell's work, they
would have discovered that he also wrote about the sins of
nationalism (<a href="https://www.orwell.ru/library/essays/nationalism/english/e_nat" target="_blank">“Notes on Nationalism” link</a>). There he said:</span></p>
<p align="JUSTIFY" style="margin-bottom: 0in; orphans: 2; widows: 2;"><span style="font-family: georgia;"><span style="font-size: medium;"><span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;"> "By 'nationalism' I mean first of all the habit of assuming that human beings can be classified like insects and that whole blocks of millions or tens of millions of people can be confidently labelled 'good' or 'bad'. But secondly —and this is much more important— I mean the habit
of identifying oneself with a single nation or other unit, placing it
beyond good and evil and recognising no other duty than that of
advancing its interests.”</span></span></span></span></span><span style="font-size: small;">
</span>
</span></p>
<p align="JUSTIFY" style="margin-bottom: 0in; orphans: 2; widows: 2;"><span style="font-family: georgia; font-size: small;"> </span><span style="font-family: georgia; font-size: medium;"> And
in a footnote to that paragraph, Orwell added:</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> “Patently absurd remarks such as
‘Germany is naturally treacherous’ are to be found in any
newspaper one opens and reckless generalization about national
character (‘The Spaniard is a natural aristocrat’ or ‘Every
Englishman is a hypocrite’) are uttered by almost everyone.
Intermittently these generalizations are seen to be unfounded, but
the habit of making them persists, and people of professedly
international outlook, e.g., Tolstoy or Bernard Shaw, are often
guilty of them.”</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> So much for the charge that Orwell
hated Germans or any other nationals, or that he made any assumptions
about their national character, or classified humans as good or bad
according to their race. But there is more. In July 1939 Orwell
published his article “<a href="https://www.orwell.ru/library/articles/niggers/english/e_ncn" target="_blank">Not Counting Niggers.</a>” We must remember
that shortly after that, the 1<sup>st</sup> of September of that
year, Germany invaded Poland and that two days later the United
Kingdom and France declared war to Germany. In his article Orwell
criticized a book that made a proposal for confronting Hitler but
failed to take into account the voice<span lang="es-ES">s</span> of
the subjugated peoples of Africa and Asia. If there is something to
object in that article, it is an underestimation of the Nazi menace
and the assertion that the European dominion over its colonies was an
evil worse than the Nazi regime, a comparison that Orwell tried to
base, among other things, by showing that salaries were much lower in
<span lang="es-ES">British </span>India than in <span lang="es-ES">Nazi
</span>Germany. In the last lines of the article Orwell expressed his
hope that a mass party would emerge “whose first pledges are to
refuse war and to right imperial injustice” <span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>all
that written days before the war. Surely that wasn't one of Orwell's
most insightful pieces. But the one thing that cannot be said about
the article is that it showed hatred or disregard for other races.</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> Perhaps Stanley Fish ignored all that.
But one would think that John MacWorther, who according to the
Wikipedia teaches comparative literature at Columbia, would have some
acquaintance with Orwell's work. If that was the case, he chose not
to spoil the merriment by pointing out the errors in Fish's
caricature.</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"><b>The rise of fake scholarship</b></span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia;"> <span style="font-size: medium;"> Not satisfied with his attack against
Orwell, Stanley Fish further increased the ignorance of his audience
by linking Francis Bacon, the renowned politician and philosopher,
with a medieval project to reinstate the language used in the Garden
of Eden. But “ignorance”, the plain lack of knowledge, is not the
right word to describe the result of Stanley Fish's efforts. He
spreads disinformation. As any undergraduate knows, or should know,
Bacon was one of first thinkers who successfully promoted modern ways
of reasoning against medieval scholasticism. He wrote “The New
Organon” to replace the old one that had prevailed since antiquity.
If you simply ignore that, you may open an encyclopedia, search the
web, or <span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>better<span style="color: black;"><span><span style="font-style: normal;"><span style="font-weight: normal;">—</span></span></span></span>
read Bacon's books. But once you have learned a distortion, your
chances to gain true knowledge are drastically reduced.</span></span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> Stanley Fish has written against fake
news, but he engages in something far worse. From high academic
positions and from mass media he supplies vast audiences with
caricatures of Bacon and Orwell. He makes his readers and listeners
believe that they can laugh at the naive thoughts of previous
generations. Unlike plain ignorance, which offers an opportunity for
future knowledge, then people would be satisfied that they don't need
to waste time reading Orwell's silly article or Bacon's preposterous
medieval project. Once a man comes <span lang="es-ES">to them
</span>surrounded by an aura of academic titles and sells a story
that not merely simplifies but distorts <span lang="es-ES">ideas</span>,
<span lang="es-ES">there is </span>a huge obstacle on their path to
knowledge.</span></p>
<p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"> Fake scholarship has an influence that
goes deeper than fake news. And Stanley Fish is not alone in pursuing
that enterprise. Besides, fake news are usually promptly refuted <span lang="es-ES">so</span>
only some blockheads remain persuaded by them. But fake scholarship
deludes a far larger number of people, <span lang="es-ES">those</span>
<span lang="es-ES">who</span> looked for knowledge and think that
they have gained it <span lang="es-ES">after attending events such as
the one in the video</span>. <span lang="es-ES">Consequently,
a</span>cademics <span lang="es-ES">who don't engage in fake
scholarship should understand that it is not enough to</span> laugh
in private at the nonsense <span lang="es-ES">taught to general
audiences. They should make a stand against it.</span></span></p><p style="margin-bottom: 0in;"><span style="font-family: georgia; font-size: medium;"></span></p><div class="separator" style="clear: both; text-align: center;"><span style="font-family: georgia; font-size: medium;"><iframe allowfullscreen="" class="BLOG_video_class" height="343" src="https://www.youtube.com/embed/6W8wwmsOS5A" width="413" youtube-src-id="6W8wwmsOS5A"></iframe></span></div><span style="font-family: georgia; font-size: medium;"><br /></span><p></p>Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-28247872940836392082021-03-26T10:01:00.003-07:002021-06-07T07:39:27.965-07:00The vegetarian butcher: Eugenio Zaffaroni<p></p><p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><i><span style="font-family: georgia; font-size: medium;">I wrote the following article many years ago, when Eugenio Zaffaroni was appointed at the Supreme Court. At that time I worked in the judiciary and decided not to publish it, as I always thought that members of the judiciary -even in humble positions- must not engage in debates that might be considered political in nature (a rule that many in high positions often disregard). Now I am free to publish it</span></i></p>
<p style="line-height: 150%;"><span style="float: left;"><span style="font-family: Times New Roman, serif; font-size: medium;">T</span></span><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">hink</span></span><span style="font-family: Times New Roman, serif;"><span lang="en-US">
what would happen if the owner of a butcher's shop appointed a
zealous vegetarian to run his business. Or imagine that the owner of
a bar chose a strict prohibitionist as the person in charge of
selling whiskey, wine, and beer. Imagine that there has been no
mistake involved in these selections. Think, for instance, that the
prohibitionist has assured the owners beforehand that his efforts
will be directed to reduce the consumption of alcohol and, if
possible, to prevent any drinking. You will say that the owner is
very stupid; but perhaps you would think as well that, no matter how
zealous the prohibitionist is concerning his cause, he should refrain
from accepting a job in which he is bound to betray the confidence of
a fool.</span></span></span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;"><span lang="en-US">In
fact, that has actually happened, and in an issue far more important
than sausages and drinking. In 2003, the Argentine government
appointed Eugenio Zaffaroni to the Federal Supreme Court. Never
before had a criminal law scholar been appointed to the Supreme
Court, so it is assumed that, for the next decades, he will be the
one who will lead the Court in this most important branch of the law.
The trouble is that the man has said in several speeches, and
asserted in a host of books and articles, that he thinks that
criminal law is useless, "illegitimate", and morally
reprehensible. We must be clear here: Zaffaroni doesn't tell us that
this or that law is bad; he claims that a law system that punishes
criminals —no matter how gruesome their crimes— is wicked. As it
may sound too odd and too absurd a theory, it is better to say it
again: Zaffaroni has declared many times, and written in the clearest
of words, that he doesn't restrict his loathing to the law of a
particular nation or of a particular age: he thinks that legal
punishment can never be justified. He is a strict prohibitionist. He
is the barman refusing customers all alcoholic drinking. He is the
vegetarian butcher.</span></span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">In
a speech he gave in 1993 in Mexico City</span></span><sup><span style="font-family: Times New Roman, serif;"><span lang="en-US"><a class="sdfootnoteanc" href="#sdfootnote1sym" name="sdfootnote1anc"><sup>1</sup></a></span></span></sup><span style="font-family: Times New Roman, serif;"><span lang="en-US">,
a decade before he was appointed to the Argentine Supreme Court,
Zaffaroni declared that he would sum up the purpose of punishment in
two words: "no way". He boldly added that all those
thinkers that, along the centuries, have tried to justify punishment
were simply wrong. Punishment has no legal function, he asserts,
though it may happen to be useful to politicians. Of course, judge
Zaffaroni has no objections against providing psychological treatment
to criminals. Furthermore, he thinks that we are entitled to impose
fines, and that we (or more precisely, he, as the judge we appointed)
may order criminals to ask for the victim's forgiveness. He also
thinks that a judge may be justified in prompting both the criminal
and his victim to negotiate between themselves the outcome of the
trial. But to send a criminal to prison, Zaffaroni says, can never be
right. </span></span>
</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">Nor
was this speech the only one in which he had stated his doctrine.
Shortly before he was appointed to the Supreme Court, Zaffaroni had
been engaged in a debate with Carlos Santiago Nino, a law philosopher
very close to Alfonsin's government. His well known ties to the first
democratic government that befell Argentina after the defeat in the
Falklands allowed Nino a safe position from which to criticize
Zaffaroni, without the risk of being called "fascist" and
accused of supporting the military juntas (a risk which anyone
dissenting with Zaffaroni must face). The debate took the form of an
exchange of articles.</span></span><sup><span style="font-family: Times New Roman, serif;"><span lang="en-US"><a class="sdfootnoteanc" href="#sdfootnote2sym" name="sdfootnote2anc"><sup>2</sup></a></span></span></sup><span style="font-family: Times New Roman, serif;"><span lang="en-US">
Startled at Zaffaroni's refusal to send criminals to prison, Nino
asked whether Zaffaroni would maintain his doctrine in cases of
genocide, mass murder, and similar gruesome crimes. The master, as
many people now call Zaffaroni, proved impervious to reason and
asserted once more that punishment (other than fines, of course) is
always unjustified. He must have felt that he had gone a bit too far
in his foolishness, so he allowed that pain (he does not permit the
word "punishment") might be imposed to mass murderers. But
even this concession was belittled by burying it into theoretical
debris: Zaffaroni said that giving pain to mass murderers (or maybe
cruel rapists) was only an "alternative use of law", a
device, he explained, which is not limited to Marxist theory. What he
meant by that is difficult to say; or more precisely, it is likely
that its meaning, if it had one, was too absurd to be put in plain
words.</span></span></span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">Now,
apart from the general unsoundness of Zaffaroni's doctrines (a fact
that must be expected of a man that the Argentine intelligentsia finds admirable), there is an immediate objection to Zaffaroni's
appointment to the Supreme Court. Namely, how can he honestly accept
a job that requires him, either to betray his moral convictions, or
to betray the laws he has vowed to enforce as a judge? In other
words, how can a strict prohibitionist honestly accept a job as a
barman? Well, he can't, honestly. But, of course, if the
prohibitionist takes the job anyway, he will be in a position that
will enable him to root very effectively for his doctrine. It would
be as effective as to have strict vegetarians running butcher shops,
and puritans running porn shops. Success would mean total collapse.</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">Zaffaroni
himself is aware of this most obvious objection. In his Mexico City
speech, he pondered on the possible justification of a jurist that
decries punishment, and still vows solemnly that he will enforce a
Criminal Code which commands prison to about three hundred different
crimes, from murder to fraud. Ever confident about human gullibility,
Zaffaroni proceeded to explain the moral puzzle. He said: well, there
are many other facts in politics that can't be justified, and this is
one of them.</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">This
sounds right: imagine someone promised you to do something and then
failed to keep his word. You meekly mention that to him. Then he
answers: you know, there are many things that cannot be justified,
and my failure to keep my promises is one of them. Certainly, you
will admit your mistake and apologize: now I understand, I am sorry I
have bothered you, what a simpleton I am !</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">As
children do when they are caught throwing stones, Zaffaroni pointed
out that others do the same. He explained that he is not the only one
that profits from contradictory positions: others do the same. War,
he said, is illegal according to international law. Nevertheless,
international law has rules concerning the treatment of war
prisoners. There you have a contradiction: how can anyone have rules
about things that should not have happened in the first place? It is
like banning robbery, and then telling robbers that they must spare
your bed and your chairs. The audience must have been fascinated by
the master's powerful logic. Fortunately, his words have been
preserved in text form, so that future generations can profit from
them as well.</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">Zaffaroni's
reasoning has such number of mistakes that it is often difficult to
decide which must be tackled first. For a start, it is not true that
international law declares war illegal. A number of attacks might
have been declared so, but not war in itself. For instance, England
declared war to Germany at a time in which Germany was at peace with
England and nobody has ever suggested —with the possible exception
of Hitler— that this was illegal. So, the very starting point of
Zaffaroni's reasoning involves a falsehood of which he cannot be
unaware.</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">But
there is more: even if —at a moment nobody was paying attention—
all wars had been declared illegal by international law, this does
not mean that there is any contradiction in having rules concerning
the treatment of prisoners of war. If you engage in an unlawful
activity (war), you may make you crime worse if, on top of that, you
mistreat prisoners of war. The same happens with common crimes: if
you rob and kill you are more blamable than if you simply rob. Where
is the contradiction? How does this relate to Zaffaroni's moral
choices?</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">If
we follow Zaffaroni's meandering line of though, we will find that it
leads to something worse than bad logic. Explaining how he was
justified in vowing to enforce laws he regards as illegal and
immoral, or —to be precise— explaining why he thinks himself
entitled to break his vow, Zaffaroni continued with his comparison.
He told his audience at Mexico City that those who dictate
international rules for the treatment of prisoners escape logical
contradiction only by taking war as a mere fact. War cannot be
justified, never. But as it exists, international law givers can try
at least to curb its more awful consequences.</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;"><span lang="en-US">At
this point, one might wonder why all this relates to Zaffaroni's vow
as a judge. He left those in his audience to guess by themselves; but
the comparison is easy to understand. He takes legal punishment as a
fact he cannot justify but cannot avoid. He knows that only highly
trained law scholars would think right that, say, savage murderers
get away with their crimes with only psychological treatment. He
knows that legislators —let alone voters— would never admit the
reforms that Zaffaroni deems necessary to make criminal law morally
acceptable. Confronted with this evil fact he cannot change, he
thinks himself entitled to thwart the evil from inside. In other
words: the illegitimate fact against which Zaffaroni dedicates all
his efforts is not crime, but criminal law; at least, that major
portion of criminal law that commands prison to major crimes, and not
just psychological counsel, fines, a dialog with the victim, etc.</span></span></p>
<p lang="en-US" style="break-before: page; line-height: 150%; page-break-before: always; text-indent: 0.49in;">
<span style="font-family: Times New Roman, serif;"><span style="font-size: medium;"><b>Criminal
law is selective –yes, it must be selective</b></span></span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">In
the previous paragraphs, I have pointed out the dubious moral
character of a war against criminal law that is waged from inside,
while pocketing a high salary, and with all the advantages of
treachery and irregular fighting. But let's forget all that for a
moment, to consider Zaffaroni's objections to prison as if they
involved only a confrontation from outside, and not treason from
within. Let's consider the more favorable case of a scholar who takes
issue with criminal law, someone who has not vowed to enforce it. Why
should we remove prison from the Penal Code? How has Zaffaroni come
to such a complete rejection of punishment?</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">First
of all, Zaffaroni argues —in every article he writes on the
subject— that those taken to prison are mostly brutish and clumsy
criminals, the less proficient, the losers. The more cunning kind of
criminal is seldom caught. So what? Is Zaffaroni arguing that our
failure to catch all criminals is a good reason to free those who we
manage to catch? I have heard boys sustaining this line of argument;
indeed, probably I have used it myself when I was a child. But it
appalls me to hear a law scholar repeating over and over: others are
wicked too, and they have not been caught!</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">Zaffaroni
assures us that those in prison are there because they are stupid
losers. So what? Is it true that stupid criminals are less dangerous
than clever criminals? No, they are often more dangerous. They are
not able to rob without threatening and beating their victims; they
cannot refrain, once they have entered a house, from hitting the
husband, raping the wife, and setting fire to everything. A clever
thief would not act under the effect of alcohol and drugs; stupid
thieves do it all the time, and it is more likely that, in such
state, they will behave recklessly.</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">Besides,
how do you define stupidity in criminals? Criminal skill has many
sides, and a criminal might be very proficient in killing the victim,
but clumsy in hiding the corpse. I remember a case in which a gang
attacked a bank truck —which is seldom an easy enterprise. The
robbers had managed to get precise information about the route the
truck would follow. They had armed themselves with machine guns. In
short: they were quite good on that side of crime. The attack was
successful —success meaning, a truck guard dead, others wounded,
and the money taken. The robbers went to a safe house they had
prepared beforehand. To spend their time pleasantly, they took some
girlfriends with them. One day, one of the chicks had a row with one
of the neighbors. Two of the gang went out and threatened the
neighbor, making a display of their weapons. That probably looked
great and pleased the girl. Unfortunately for the robbers, the
neighbor returned to his home, picked up the phone, and told the
police that there were men carrying weapons nearby. The entire gang
was caught and the money was recovered (except a small amount they
had already consumed). The robbers had been very clever in almost
everything; but when they thought they were safe, they made one fatal
mistake; and that was enough. </span></span>
</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">It
is useless to discuss the exact combination of intelligence and
stupidity the robbers showed. What is certain is that their stupidity
didn't make them less dangerous. Try telling the guard's widow that
those sent to prison were nothing more than stupid men. Well, it is
likely that Zaffaroni would say it. Moreover, he declares that
Criminal Law must be redefined so that its goal becomes to encroach,
and if possible to eliminate, the power of punishing criminals (see
his Mexico City speech, paragraph 10). Of course, as he himself has
been given the power to punish, and at the highest court in the
country, he is now in the very place where he can easily thwart the
enforcement of criminal law.</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">In
a most Orwellian style, Zaffaroni tells us that the meaning of
"crime" must be redefined: it is only the imprisonment of
people that constitutes a crime. So, he boldly adds, "reducing
crime" really means reducing the number of inmates. That a law
scholar and a judge would say this, and that his audience would
cheerfully agree with him, seems hard to believe. But you can read
these assertions in Zaffaroni's Mexico City speech. He ruefully
mentions the "black numbers of crime" referring to the
number of inmates, whom he calls "victims". This is my
conclusion: I will make use of Zaffaroni's additions to Orwell's
newspeak: if someone stabs you, you know that the stabber is the
victim —unless, of course, he manages to avoid being sent to
prison, which then will be counted as a small triumph in the long
struggle against crime. This degree of confusion, these redefinitions
of words that would make the Party leaders of </span></span><span style="font-family: Times New Roman, serif;"><span lang="en-US"><i>1984</i></span></span><span style="font-family: Times New Roman, serif;"><span lang="en-US">
blush, in a word, this nonsense, may be thought to be incompatible
with the highest positions both at the bench and at the University.
In normal times and in normal countries, it must be thought
impossible. In Argentina, and at the beginning of the XXI century,
high nonsense is not incompatible with high rank: it is its most
important requisite. </span></span>
</span></p>
<p align="LEFT" lang="en-US" style="line-height: 150%; text-indent: 0.49in;">
<span style="font-size: medium;"><span style="font-family: Times New Roman, serif;">When he had to confront Nino,
Zaffaroni was more guarded. He refrained from absolute definitions;
he didn't dare, as he did in his Mexico City speech, to make use of
his "no way" answer to the question of the legitimate
functions of punishment. In his debate with Nino, Zaffaroni made a
strategic retreat to a more safe position, which <span style="font-family: Times New Roman, serif;">—</span>not
surprisingly<span style="font-family: Times New Roman, serif;">—</span> is the
position of someone who has doubts. This time, Zaffaroni said that
there is no evidence that sending people to jail works as deterrence
of crime. I would have suggested a trip along an area devastated by a
hurricane or an earthquake, where gangs operate freely, killing,
robbing and raping: that would give Zaffaroni a clearer idea. </span>
</span></p>
<p align="LEFT" lang="en-US" style="line-height: 150%; text-indent: 0.49in;">
<span style="font-size: medium;"><span style="font-family: Times New Roman, serif;">On the other hand, in his debate
with Nino, Zaffaroni admitted that there is no evidence that
punishment doesn't, to some extent, actually prevent crime. He
declared that, as to the affects of incarceration, he is an
"agnostic". But then, how can he say, when he is safe from
criticism and just addressing a mob of professors, that he is certain
that it is a crime to send criminals to jail? Moreover, is Zaffaroni
sure that fines do prevent crime? If not: how is it that he sees no
objection to them? </span>
</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">In
fact, it is useless to search for consistency in Zaffaroni's
opinions. Nevertheless, we must tackle them because they are becoming
the official ideology of the judiciary, of the government, and of the
universities. Let's see another reason Zaffaroni often mentions for
his rejection of punishment. He says that statistical studies made on
US jail populations have proved that poor people outnumber the middle
and high classes. Worse than that, statistics prove that there is no
proportion between the number of black inmates and the black
population of the US. Zaffaroni presents these revelations as if they
where evidence of a secret plot. After discovering this lack of
proportion, he lost his faith in criminal law, he would never believe
again, he lost his virginity. He realized that law was just the cruel
tool of the dominant classes. I must say that Zaffaroni's faith in
law must have been very little if it was shaken by statistics that
simply confirm what every adult (and most children) already knows.</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">So
now we know that prison populations are not representative of the
whole population. Why should they be? Old ladies do not engage in
crime as often as young men. In fact, I would start to suspect a bias
if I were told that we have sent to prison an equal number of young
men and of old ladies. And, what about the proportion between the
number of inmate drug addicts and the number of drug addicts in the
whole population? Is there a fair and representative proportion kept?
It is easy to see the mistake in Zaffaroni's argument: it consists in
requiring a proportion between the various sections of the population
and the number of inmates, and not between those who actually engage
in crime and those sent to prison. </span></span>
</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">Zaffaroni
believes that he has discovered a fundamental objection against all
criminal law systems. He says that all of them are "selective".
Well, somebody should have told him earlier in life that the law must
be selective: criminal laws say how this selection must be made. Of
course, a number of laws may be wrong and should be amended, and it
is certain that judges and public prosecutors often fail to apply the
law correctly. But this is no ground for rejecting punishment: it is
a reason to avoid wrong punishment.</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;">In
his articles and speeches, Zaffaroni often makes use of the phrase
"white collar crime" —its Spanish equivalent is
"delincuencia de guante blanco". Pampering the worst
instincts of his audiences, Zaffaroni suggests that criminal law is
too lenient with white collar criminals, and here he finds another
imbalance, and another objection against punishment. But, if he were
truly concerned with the evils of prisons (and there are such evils),
he would celebrate leniency —wherever it fell— and not frown at
it. But apart from this contradiction, he and all those who
constantly shout "white collar crime" fail to see that
there are obvious reasons for the imbalance they criticize. First of
all, "white collar crime" is often more difficult to
detect; as Zaffaroni himself acknowledges, some criminals are more
clever than others, and it is hardly a surprise that those not so
clever are the ones who are caught. Secondly, what are "white
collar crimes"? By far the most common one is tax evasion. But
then, we must think that if it were heavily punished, most
Argentinians would have their residences in prison. And this
comprises both the rich and the poor: in a rare example of national
unity, tax evasion joins the large majority of Argentinians in a
common endeavor. </span>
</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;"><span lang="en-US">Third,
Zaffaroni fails to see that criminal codes punish violent crime more
severely than any other thing. And, by definition, "white collar
crime" is not violent. Even a law scholar would understand that
it is one thing to take money from people by forging credit cards,
and quite another to take the same money by threatening them with a
gun. Unfortunately, the brutish losers pitied by Zaffaroni are better
at using guns than at using forging tools. Besides, according to the
Argentine Penal Code, fraud (art. 172) and robbery (art. 164) have
exactly the same punishment. Indeed, mere theft is punished less
severely than fraud. Of course, robbery with firearms is worse than
fraud (art. 166). But, is this difference the result of a conspiracy
against poor brutish losers? Or is it just common sense?</span></span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><b style="font-family: "Times New Roman", serif; text-indent: 0.49in;"><span style="font-size: medium;">The
“crime” of punishing criminals</span></b></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;"><span lang="en-US">In
his debate with Nino, Zaffaroni admitted that violence might be used
against criminals. But he allows it only if violence is directed to
prevent a crime they are about to commit. For instance, says
Zaffaroni, a policeman may be permitted to take the arm of somebody
who is about to stab his victim (thank God!). But if the murderer
succeeds in killing his victim, then it would be a crime to send him
to prison. Zaffaroni treats Nino as a simpleton for not being able to
distinguish these two different uses of force. "Direct coercion"
("coacción directa") directed to prevent imminent danger
is permissible; but punishment is different: it is always immoral and
—according to the view that defines law as those opinions shared by
judges— it might be illegal.</span></span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;">Zaffaroni
vowed to enforce laws he know he will betray. This is the only way in
which he will be able to force millions of citizens, and not just a
mob of intellectuals, to accept his doctrines. He has said in the
clearest of words that he believes that the only possible goal of a
judge is to fight criminal law from inside. Indeed, long before he
was appointed to the Supreme Court, in his Mexico City speech,
Zaffaroni devised a plan to reduce crime. We must remember that, in
his parlance, it means to reduce the number of criminals in prison.
He acknowledged that people at large would not accept his doctrines;
nevertheless, as in his view punishment has no true function,
people’s wish to see criminals in prison may be satisfied by just
choosing a figure, and deciding that this will be the number of
inmates we want to have. Though we cannot put an end to the foolish
practice of punishing criminals, we may put a limit to it: we must
choose a number of inmates that will keep the voters happy. </span>
</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;"><span lang="en-US">We
must choose a number. Actually, “we” won’t decide anything. A
board, or perhaps judges –Zaffaroni is not very clear as to whom he
would trust the decision—will set a number. Any criminal who is
convicted above this number will then be exempted from prison, or
—alternatively— some other inmate will be freed, so that the
limit is respected. In this way, the number of inmates will never
exceed the limit and, by setting the number low enough, crime
(remember the redefinition of words) will be reduced. In Zaffaroni’s
parlance, the plan consisted in putting a limit to the number of
victims (read "inmates").</span></span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">His
plan, said Zaffaroni, required a freeze in the construction of
prisons, otherwise, he insisted, it won't have any chance. Why is it
so? At first glance, it seems that if the limit to the number of
inmates is enforced, it doesn't matter whether there is more wasted
space inside prisons. The freeze seems to be only a matter of
avoiding useless constructions, but not a </span></span><span style="font-family: Times New Roman, serif;"><span lang="en-US"><i>requirement</i></span></span><span style="font-family: Times New Roman, serif;"><span lang="en-US">
for the plan. Strictly speaking, of course, the construction freeze
is no requirement. But if a freeze on the building and expansion of
prisons is decided, then it would be possible to argue that there is
no room for new inmates, and Zaffaroni's plan would look simply a
device prompted by practical considerations. But that is not the real
motive: it suffices to read Zaffaroni's 1993 speech to understand
that the plan has nothing to do with lack of facilities.</span></span></span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;">A
decade after the plan was announced, it has been put into practice.
No freeze has been adopted, but in fact, in this issue as well as in
others, the legendary Argentine carelessness amounts to an actual
freeze in new constructions, and probably even in the repair of old
prisons. Now at the Federal Supreme Court, Zaffaroni is engaged in a
battle against the Buenos Aires Province government. A maximum number
of inmates has been chosen, but there is still some wrangle as to
whether it is the right one. Nobody has been able to say what to do
with those convicted beyond the limit. </span>
</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">Of
course, a judge cannot order anything unless he has a case.
Accordingly, and most conveniently, a journalist —the former
terrorist and now influential journalist Horacio Verbitsky— sued
asking that Zaffaroni's plan was adopted, which Zaffaroni, now in the
role of judge, said was indeed required by federal and international
law.</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">Nino
had pointed out that it is undemocratic that judges, unelected
officials who enjoy life tenure, force their pet plans on the whole
population. Zaffaroni retorted by saying that, on the same grounds,
no resistance against Hitler could ever have been justified, because
he had been democratically elected. Again, this is nonsense.
Democratic elections do not mean rule of law. We don't need to go as
far as to Germany to learn this; here, in South America, people
routinely and cheerfully vote tyrants that oppress dissenters,
protect criminals, plunder bank accounts, and apply retroactive law
both in civil and criminal cases. For those who want to have a whiff
of the odor of the intellectual atmosphere, it is enough to remember
that democratically elected governments in Argentina still pay homage
to a general, Rosas, who ordered that a pregnant girl was executed
for the crime of loving a priest. </span></span>
</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;">But
nothing of this proves that elections are irrelevant. Besides, the
fact that there are elected tyrants that break the rule of law is
hardly a good reason to justify unelected tyrants that do the same.
In South America, as it once happened in Germany, these two kinds of
tyrants usually work in accord. And yet, as long as elected tyrants
don't suppress elections, we may hope of removing them in the next
election. Against unelected tyrants, we don't have that chance. This
is the only difference between them. </span>
</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><b style="font-family: "Times New Roman", serif; text-indent: 0.49in;"><span style="font-size: medium;">Zaffaroni,
an expert on many things</span></b></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">A
couple of years before he was appointed to the Argentine Supreme
Court, in a speech he gave in Guarujá, Brazil,</span></span><sup><span style="font-family: Times New Roman, serif;"><span lang="en-US"><a class="sdfootnoteanc" href="#sdfootnote3sym" name="sdfootnote3anc"><sup>3</sup></a></span></span></sup><span style="font-family: Times New Roman, serif;"><span lang="en-US">
Zaffaroni made another of his startling comparisons. He declared that
he followed a maxim he described as the logic of the reasonable
butcher. He asked his audience —a mob of criminal law professors
attending an international conference— to imagine that people
started going to a butcher, asking him medicines, plane tickets to
New Zealand, and trying to open bank accounts. A reasonable butcher
–Zaffaroni continued- must reject these requests and honestly tell
people that he only sells meat and sausages. But the butcher might
become mad, and start trying to provide all the different things
people ask from him. That, Zaffaroni asserted, is what many criminal
experts do. On his part, he adopts the logic of the reasonable
butcher, and acknowledges that criminal law is not the proper tool
for the achievement of all the goals that people assign to it.</span></span></span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;"><span lang="en-US">The
comparison has an obvious flaw. Although the reasonable butcher will
acknowledge that sausages aren't tickets to New Zealand, he will
never fail to tell us that sausages have some good and proper use,
namely, to eat them. Zaffaroni, on the other hand, says that
punishment, which is present in every penal law, has no good and
proper use: he tells us that punishment is the wicked tool that "the
system" uses to oppress his victims. Zaffaroni would have been
more precise if he had told his audience that he was a vegetarian
running the butcher's shop. He will make his job to tell the
customers that sausages are bad, that it is immoral to eat them, and
probably illegal. Zaffaroni is the vegetarian butcher.</span></span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">When
comparing himself with a reasonable butcher, Zaffaroni tried to show
himself as a modest man, a man dedicated to his own branch of the
law, and perfectly aware of his ignorance about other issues. I'm
only a criminal law scholar, he said, not an omnipotent wise man. But
immediately after having made these declarations, Zaffaroni started
to rant against globalization, politicians on TV, and the small
amount of investment dedicated to tackle social problems. Not content
with this, he assured his audience that international finance is very
similar to the Mafia, and that its methods are those of the Mafia.
Next, he denounced those who claim that international terrorism must
be tackled by criminal law (what an absurd idea!) accusing them of
using the fear for terrorism to encroach civil liberties. He, the
meek scholar limited to his own research field, denounced that the
world has been transformed into a big slave ship, with a few rich
people enjoying a first class deck, and a multitude of others who are
only waiting to die, without food, water, and even without light. He
said that those at the bottom would think it better to commit suicide
rather than to keep living, but that they will try to kill others
while killing themselves.</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;">I
wonder whether it was lack of food, lack of water, or lack of light,
that led a group of young English born Muslims to kill themselves and
hundreds of others in London, shortly after they had returned from
their hatred-learning trip in Pakistan. </span>
</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><span style="font-family: Times New Roman, serif; font-size: medium;">Eight
years before Zaffaroni made such measured technical survey of his own
legal branch, he had alerted his Mexican audience about a change in
the US economic system. He declared that it has been transformed from
one centered on production, to one centered on services, and
concluded that this most wicked turn has created an hypertrophic
criminal law system. He further complained against the US, saying
that it managed the world currency.</span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">I
almost forgot: in 2001, in his measured and scholarly survey,
Zaffaroni denounced that globalization was exempted from costs (I
think that he had some sort of tax in mind), and regretted that
governments everywhere had lost their power to mediate between the
forces of capital and the forces of labor. He warned that capital was
directed only to those places where there is less investment in
social care (yes, everyone is investing in Africa), and where workers
are treated as slaves. One must remember that Zaffaroni was vomiting
all this at the members of an International Congress on Criminal Law.
To that meekest of all audiences he repeated the list of commonplaces
one may hear at Muslim and Marxist madrasas around the world, but at
the same time he pretended that he was only making a humble
contribution to his own branch of knowledge, regretting that others
who think themselves omnipotent venture to address issues about which
they are not qualified. But then, what are Zaffaroni’s
qualifications on international finances, globalization, the effects
of the service sector on the economy and on society, the role of the
state on labor disputes, and terrorism? If Zaffaroni thought he was
qualified to harangue his colleagues on these issues, then it seems
that, when criticizing the omnipotent pretensions of wisdom of
others, he excluded himself from a similar restriction. Yet it is
clear that outside his field of study, and perhaps even inside it,
Zaffaroni knows as much as the man who will sweep the floor after he
and his audience have departed to the next international meeting in
their agenda. </span></span>
</span></p>
<p lang="en-US" style="line-height: 150%; text-indent: 0.49in;"><b style="font-family: "Times New Roman", serif; text-indent: 0.49in;"><span style="font-size: medium;">The
darling of the establishment</span></b></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif;"><span lang="en-US">It
was already bad that Zaffaroni had been in charge for so long of the
education of future lawyers and judges. But now, “the system” he
never ceases to denounce has also appointed him judge at the Supreme
Court, which shows once more how little truth there is in his
theories about power. It is certain that from his high position, this
man, who presents himself as a humble scholar, will try to enforce
his doctrines on us. </span></span><span style="font-family: Times New Roman, serif;">We'd
better know what he is up to.</span></span></p>
<p style="line-height: 150%; text-indent: 0.49in;"><span style="font-size: medium;"><span style="font-family: Times New Roman, serif; text-indent: 0.49in;"><span lang="en-GB"><b>Note
about web references</b></span></span><span style="font-family: Times New Roman, serif; text-indent: 0.49in;"><span lang="en-GB">:
I have provided web addresses in which Zaffaroni’s articles can be
read. Sometimes web sites change contents, or disappear. In that
case, you may simply google for the articles. For instance you may
search for “Zaffaroni Nino debate”, or “Zaffaroni Guarujá</span></span><span style="font-family: Times New Roman, serif; text-indent: 0.49in;"><span lang="en-US">”
(his speech in Brazil) or “Eugenio Zaffaroni qu</span></span><span style="font-family: Times New Roman, serif; text-indent: 0.49in;"><span lang="en-GB">é
hacer con la pena” (his speech in Mexico).</span></span></span></p>
<div id="sdfootnote1">
<p class="sdfootnote"><span style="font-size: medium;"><a class="sdfootnotesym" href="#sdfootnote1anc" name="sdfootnote1sym">1</a>
<span style="font-family: Times New Roman, serif;"><span lang="en-US">http://psicopenal.org/pdf/quehacerconlapena.pdf</span></span></span></p>
</div>
<div id="sdfootnote2">
<p class="sdfootnote"><span style="font-size: medium;"><a class="sdfootnotesym" href="#sdfootnote2anc" name="sdfootnote2sym">2</a>
<span style="font-family: Times New Roman, serif;"><span lang="es-ES">http://www.pensamientopenal.com.ar/nhd/.</span></span></span></p>
</div>
<div id="sdfootnote3">
<p class="sdfootnote"><span style="font-size: medium;"><a class="sdfootnotesym" href="#sdfootnote3anc" name="sdfootnote3sym">3</a>
h<span style="font-family: Times New Roman, serif;"><span lang="es-ES">ttp://www.homenajeazaffaroni.com.ar/confezaffa.htm.</span></span></span></p>
</div><p></p>Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-74383569091216228582020-11-03T09:20:00.005-08:002023-05-24T04:03:34.745-07:00Holmes and Sunstein: the fallacy about The Cost of Rights<p> <span style="font-family: georgia; font-size: large;">There is an argument
that appears in almost all of the many books and articles that
academics churn out in support of an enlargement of the welfare
state. They tell you that the new entitlements they would like to see
established by government and afforded by your taxes aren't really
different from traditional individual rights like freedom of speech
and private property.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> The argument goes this
way: all rights have costs, right? Freedom of speech, for instance,
must be protected from attacks by terrorists, and that costs money,
right? So happens with public housing, food stamps and the like,
right? So you opposition to those entitlements or even new ones is
based on prejudice, on the false idea that “traditional” rights
<span lang="es-ES">cost nothing or are</span> somewhat different from
welfare. <span lang="es-ES">You are wrong,</span> they all have costs
and all require taxes. In fact, a<span lang="es-ES">ll rights are
welfare rights.</span> Don't you feel ashamed of sustaining
nonsensical prejudices that academics have debunked so many times?</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> The issue is no longer
merely academic. In the last decade it has percolated into politics
and already many <span lang="es-ES">leaders</span> in the US
Democratic party call for an enlargement of the New Deal of the
1930s. Professor Cass Sunstein, who was appointed Regulation <span lang="es-ES">Tz</span>ar
by Barack Obama in 2009, had five years before published his book
“The Second Bill of Rights. FDR's Unfinished Revolution and Why We
Need it More than Ever” in which he praised Franklin D. Roosevelt
for the introduction of social and economic rights. Nevertheless, as
the title <span lang="es-ES">of the book </span>itself declares,
Sunstein thinks that the welfare revolution must be pushed forward.
He had prepared the way to such proposal in a previous book “The
Cost of Rights. Why Liberty Depends on Taxes” which he published in
2000 together with <span lang="es-ES">professor </span>Stephen
Holmes.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> These ideas have their
echoes all around the world. Where I live, Argentina, Carlos Nino, a
law professor and an adviser to former President <span lang="es-ES">Raúl
Alfonsin</span>, has tried to counter the opposition to economic and
social rights with arguments similar to those of Sunstein and Holmes,
to which he added some of his own (<a href="http://rule-of-law-not-of-men.blogspot.com/2015/07/carlos-santiago-nino-on-social-and.html" target="_blank">link to my two articles on Nino</a>).
The new star among Argentine left-wing academics, law professor
Roberto Gargarella, is a disciple of both Nino and Sunstein.
Gargarella seems to think that, after the prejudice in favor of
traditional rights has been debunked so thoroughly, it is enough to
point out that “as we all know” all rights have costs.
</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="es-ES"> To
my knowledge,</span> the most extensive exposition of the argument is
to be found in two books: Murphy and Nagel's “The Myth of
Ownership”, and the already mentioned “The Cost of Rights”. I
have dealt with the former in a series of articles (<a href="http://rule-of-law-not-of-men.blogspot.com/2011/09/murphy-nagel-sunstein-and-dworkin-on.html" target="_blank">link to the first</a>) and now I intend to do the same with the second. <span lang="es-ES">This
time</span> it is easier because, although the book includes some
secondary arguments, it rests almost entirely on the one about costs.
I will do the same, although there are many other objections against
a larger welfare system, I will concentrate on the one the authors
chose to rest their case.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><br /><b>Opposition to more
welfare rights is based on prejudice (is it really?)</b></span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> “<span lang="es-ES">The</span>
<span lang="es-ES">Cost of Rights”</span> starts with a description
of a fire in Long Island, New York. In august 1995 thousands of
firefighters, volunteers, police and even the military fought to
extinguish it. Fortunately nobody died and there was little damage to
properties. <span lang="es-ES">Holmes</span> and Sunstein write that
although volunteers helped, public resources made those efforts
possible. They assert that the costs were estimated at $ 1.1 million
but that they may have been as high as $ 2.9 million.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Using this case <span lang="es-ES">they</span>
counter the criticism of those who warn that government has become
too big. Here we meet an auxiliary fallacy (soon we will tackle
the main one) which is very common in promoters of a larger welfare
state. They <span lang="es-ES">implicitly</span> assume that those on
the other side reject all government services and all taxes.
<span lang="es-ES">Moreover</span>, <span lang="es-ES">professors
Holmes and Sunstein</span> <span lang="es-ES">are</span> not arguing
for the status quo, <span lang="es-ES">they</span> want to enlarge
the already enormous federal government. So pointing out to the
services provided by firefighters does not answer the criticism of
the welfare state, nor does it provide a reason for making it bigger.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="es-ES"> The
authors</span> <span lang="es-ES">themselves</span> must have had
some misgivings about that argument so <span lang="es-ES">they</span>
go to the main one: asserting that all rights are welfare rights.
Then, if you oppose government handouts you must oppose firefighters.
</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="es-ES"> Through
the book, the professors</span> declare <span lang="es-ES">again and
again </span>that all rights are welfare rights. Even traditional
rights like freedom of speech are not really that different from food
stamps and other government handouts. Why is it so? Well, all of them
cost money. <span lang="es-ES">Governments</span> have to spend money
protecting free speech against those who might try to violently
<span lang="es-ES">suppress</span> it. Without such protection and
that spending, the right to free speech has little value. They add
that the same applies to any other right, traditional or new,
negative of positive, all cost government's money.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Stretching things a
bit, <span lang="es-ES">the authors</span> claim that “A legal
right exists, in reality, only when and if it has budgetary costs”
(The Cost of Rights, 21, all further references made to it -Google
Books version- unless otherwise stated). Then <span lang="es-ES">they</span>
blame conservatives for being oblivious about “the way that taxes
of the whole community are used to protect the property rights of
wealthy individuals”. On the same vein, <span lang="es-ES">they</span>
add that it is plain that “the right to reasonable compensation for
property confiscated under the power of eminent domain has
substantial budgetary costs” (27).</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Corollary of all that
is that “public savings can be achieved just as effectively by
tightening standing requirements for civil actions (by curtailing
classical rights), as by tightening eligibility requirements for food
stamps (by curtailing welfare rights)” (28). <span lang="es-ES">These
are just two ways of allocating public resources.</span> Then, in an
analysis not blurred by prejudice, in a hard-nosed examination of the
issue from the angle of costs, the reader of the book should
understand that there is not much difference between welfare and
classical rights.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><b>The main fallacy</b></span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> The main trick in the
book is performed in two steps: first by speaking loosely about
rights and their protection as if they were the same thing. Secondly:
by sweeping under the carpet that money or housing provided as
welfare rights are protected by firefighters, police and the courts
as any other property but that <i>on top of that</i>, the money or
the houses are provided by government by taxing other people.
</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Loose reasoning is then
essential for the purpose. <span lang="es-ES">Holmes and Sunstein</span>
won't deny that firefighters would try to save any property, no
matter whether it was bought by the owner or received as welfare. But
<span lang="es-ES">they</span> keep dropping sentences here and there
that point to the shocking fact that the property of wealthy
individuals is protected by resources that come from taxes paid by
the whole community (and <span lang="es-ES">the rich</span> have the
gall to complain about welfare!).</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Sunstein repeat<span lang="es-ES">ed</span>
that strategy in his book “The Second Bill of Rights”. There he
first silently assumes that those who complain about welfare ask for
a return to a state of nature, and then he points out, <span lang="es-ES">for
the benefit of those who ignore it,</span> that rich people are
protected by policemen and judges. He asks: “In the state of nature
‒freed from the
protection of law and government‒
how well would wealthy people fare? (The Second Bill of Rights, 206).</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="es-ES"> The
trouble with that line of argument is that p</span>oor people would
fare as badly, or worse. They would be forced by powerful chieftains
to pay in kind, to give up part of their harvests no matter how
meager they are, they would be killed or enslaved. None of that is
speculation, it is a large part of history. Even today, poor people
are the first victims of crime, robbed, abused, and -as in Argentina-
forced to pay protection money merely to enter <span lang="es-ES">and
leave </span>the shanty towns where they live. The notion held by
some elites, that only rich people are interested and benefited by
the rule of law, or ‒as
Marx put it‒ that poor
people have nothing to lose but their chains, ignores the past as
well as the present.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Once you start thinking
that it is wise to view things that way, you may be convinced that it
is only fair that if the rich have their pockets protected by police,
then the poor must have their pockets supplied with money by
government. The fact that welfare implies two <span lang="es-ES"><i>different</i></span><span lang="es-ES">
</span>costs -first the handout and then its protection- is then
easily forgotten.</span></p>
<p lang="es-ES" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Criticism
of entitlements is, and has always been, criticism of that first
thing: the handout. It has never been directed against protecting the
property rights of anyone, rich or poor.</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><b>Was government
always such big?</b></span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> In his pursuit of
enlightening people about their prejudices, Sunstein writes that “it
is a huge blunder to suggest, as many do, that for the old-style
rights, the government apparatus required is relatively small...To
protect the first bill <span lang="es-AR">[traditional rights],
</span><span lang="en-US">government must do far more than provide a
military. Its apparatus must be very large indeed” (The Second Bill
of Rights, 200-201).</span></span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="en-US"> The
trouble with Sunstein argument is that government </span><span lang="en-US"><i>was</i></span><span lang="en-US">
indeed far smaller before welfare </span><span lang="es-ES">and
entitlements started to grow</span><span lang="en-US">. There is no
need to speculate whether </span><span lang="es-ES">government</span><span lang="en-US">
would be smaller, it </span><span lang="en-US"><i>was</i></span><span lang="en-US">
smaller. At the beginning of the XXth century the US government spent
about 0.2 % of GDP on welfare. To reach the present spending on
welfare you will have to multiply that figure more than ten times (<a href="https://www.usgovernmentspending.com/welfare_spending_history#:~:text=Welfare%20spending%2C%20on%20programs%20for,Gross%20Domestic%20Product%20(GDP).&text=Welfare%20costs%20are%20estimated%20at,percent%20of%20GDP%20by%202020." target="_blank">US Welfare Spending History</a>).</span></span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Again, for
those like <span lang="es-ES">Holmes and </span>Sunstein who push to
expand welfare even beyond its present level, it is not enough to
point out that government spends on courts, the police, etc. That
would be enough if they were debating people bent on disbanding all
government. Certainly, there are half a dozen scholars in a couple of
think tanks that dream of anarcho-capitalism but that is not the
point <span lang="es-ES">Holmes and </span>Sunstein <span lang="es-ES">are</span>
trying to counter. Nor <span lang="es-ES">are</span> <span lang="es-ES">they</span>
just suggesting that welfare spending is kept at the present level.
<span lang="es-ES">They</span> think that the New Deal is an
unfinished revolution, that its welfare programs ‒and
there was much added since‒
must be expanded.
</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="en-US"> One
of the many stumbling blocks on the way of such proposal is the usual
distinction between negative and positive rights. Traditional rights
like free speech a</span><span lang="es-ES">re</span><span lang="en-US">
seen as negative </span><span lang="en-US">‒</span><span lang="en-US">not
requiring much from government besides respect for freedom</span><span lang="en-US">‒</span><span lang="en-US">
while public housing and food stamps are seen as positive </span><span lang="en-US">‒</span><span lang="en-US">i.e.
they are provided by government. As we have seen, </span><span lang="es-ES">the
professors'</span><span lang="en-US"> main strategy to </span><span lang="es-ES">blur</span><span lang="en-US">
those concepts is to claim that both demand expenditures and to hide
that welfare demands two: one to provide housing, money, etc., and
another to protect them. The only thing that earned money and
government handouts share is the protection, not the provision.</span></span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="es-ES"> Certainly,
the </span><span lang="en-US">word</span><span lang="es-ES">
“negative” is </span><span lang="en-US">inaccurate</span><span lang="es-ES">
if one thinks about the protection </span><span lang="en-US">of
property</span><span lang="es-ES">, but not if one thinks about the
provision </span><span lang="en-US">of property. Traditional rights
are negative in the sense that they are only protected by government
action, but not provided by government </span><span lang="en-US">‒</span><span lang="en-US">as
entitlements are</span><span lang="es-ES">. </span><span lang="en-US">One</span><span lang="es-ES">
may try a play with words and claim that both food stamps and
policing must be called provision, or that both must be called
protection. But </span><span lang="en-US">using only one word does
not remove the difference, it only hides it.</span></span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Nevertheless,
<span lang="es-ES">Holmes and </span>Sunstein tr<span lang="es-ES">y</span>
hard to show that the distinction <span lang="es-ES">has no basis</span>.
<span lang="es-ES">They</span> write that “It does not appear
anywhere in the Constitution, for one thing. It was wholly unknown to
American framers” (39). Any schoolboy should be able to see that
the distinction cannot be found in the Constitution because its Bill
of Rights acknowledges only traditional negative rights. <span lang="es-ES">As
t</span>he distinction between dogs and cats is nowhere to see in a
dog show, <span lang="es-ES">the professors</span> would be able to
prove that such distinction must arise only from prejudice.
</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><b>Misconstruing
history</b></span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Holmes and
Sunstein fight the distinction further by saying that “Private
property is not only protected by government agencies, such as the
fire department. It is, more generally, a creation of state action.
Legislators and judges define the rules of <span lang="es-ES">ownership,</span>
just as they establish and interpret the regulations governing all of
our basic rights” (68)</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> That
assertion, <span lang="es-ES">namely </span>that private property is
a creation of the state, goes against the fundamental understanding
of individual rights in US history. Even today, in spite of the
strenuous efforts of so many academics, most Americans would think
that property is a right recognized in the Constitution, and that
interpretation and regulation cannot be stretched to the point where
<span lang="es-ES">rights become</span> just the creation of
legislators and judges. Even the Constitution didn't create property,
it simply acknowledged a right that existed well before it was
enacted. There is no need to enter into a debate about natural law;
a<span lang="es-ES">s a matter of fact and history there were
property rights in the US before the Constitution was enacted.</span></span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Perhaps
<span lang="es-ES">Holmes and </span>Sunstein <span lang="es-ES">themselves</span>
sense that <span lang="es-ES">their</span> view is alien to American
history and traditions so <span lang="es-ES">they</span> must go far
away and long ago for support. <span lang="es-ES">The professors</span>
go to medieval England, where the feudal order might provide a better
basis for <span lang="es-ES">their</span> understanding of property
rights. <span lang="es-ES">They </span>write “To simplify a complex
story, William the Conqueror created property rights when he
distributed plots of seized lands to the Norman noblemen who had
helped him overrun England. Common-law property rights, as
enforceable in court, did not descend from high principle but rather
rough-hewn in a process of social give-and-take. This historical
curiosity fits well with the fact that, as a matter of current legal
reality property rights, far from being rigidly fixed, remain subject
to considerable renegotiation” (196).</span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="en-US"> A
simplification may not be necessarily misleading, but the one above
points to the exception and silences the rule. </span><span lang="es-ES">William
the Conqueror treated the Saxons as a vanquished people with no right
to their land. That </span><span lang="en-US">never became the
leading principle of the common law. Soon that force was restrained
by rules and judges. When another king tried to play tricks with his
people's property he was forced to </span><span lang="es-AR">admit
that he had violated his subjects</span><span lang="es-ES">'</span><span lang="es-AR">
rights and </span><span lang="es-ES">promised to respect them in</span><span lang="es-AR">
Magna Charta. </span>
</span></p>
<p lang="es-ES" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="en-US"> Moreover,</span>
if <span lang="en-US">the description </span>is wrong about <span lang="en-US">the
beginning of common law in </span>medieval England, it is absurd to
<span lang="en-US">suggest </span>that <span lang="en-US">a</span>
<span lang="en-US">government that takes</span> property <span lang="en-US">from
some people </span>and giv<span lang="en-US">es</span> it to <span lang="en-US">its
</span>followers offers a pattern that is relevant to modern United
States ‒<span lang="en-US">or
so I</span> hope.
</span></p>
<p lang="es-ES" style="margin-bottom: 0.08in;"><b><span style="font-family: georgia; font-size: large;">Danegeld
theory</span></b></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="es-ES"> In
many parts of “The Cost of Rights” the authors argue as if only
the rich w</span><span lang="en-US">ere interested </span><span lang="es-ES">in
law and order and even in defense against foreign invasion. </span><span lang="en-US">They
write “When those with little or no property are reluctant to fight
fiercely against foreign looters and conquerors, the property rights
of the rich are of little worth. For prudential reasons alone,
property owners have an incentive to prevent the impoverished from
feeling alienated from the polity” (199). So </span><span lang="es-ES">we
learn that,</span><span lang="en-US"> before welfare, poor people
didn't fight foreign invaders. French peasants didn't follow Jean
d'Arc and American farmers refused to follow Washington. The
</span><span lang="es-ES">professors'</span><span lang="en-US">
mistaken assumption is the same that </span><span lang="es-ES">Vladimir
</span><span lang="en-US">Lenin made when he decided to invade Poland
in 1920, that the Polish poor had no interest in defending a
country that gave them no public housing and higher education for
free. Certainly, the Polish poor didn't agree with that assumption.</span></span></p>
<p style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="en-US"> Besides,
it is not true that only, or mostly, the rich suffer when their
country is invaded. From time immemorial poor people have seen their
huts burnt, their wives and daughters raped, and whole villages sent
into slavery. Nor is it right to assume that only the rich suffer the
attacks of criminals. If anything, poor people need protection
against them even more than the rich. I remember a case I saw when I
worked for one of the courts in Argentina. A man started a small
grocery in a shanty town. He prospered a bit and decided to buy a
second-hand saw so as to be able to cut and sell meat. A gang of
youngsters learned that the man was about to make a payment in cash
and planned a </span><span lang="es-ES">hit</span><span lang="en-US">.
It happened that the shopkeeper's son was a member of the gang, so he
told his father, who managed to avoid the attack. The gang killed his
son as a traitor. </span><span lang="es-ES">It wasn't only a tragedy
for the father, but it deprived the people of the shanty town from
the services of a man who had deared to provide them.</span></span></p>
<p lang="es-ES" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Never
mind, Holmes and <span lang="en-US">Sunstein</span> tell us that law
determines who must lack resources because it doesn't allow the poor
to remedy their situation by violent means <span lang="en-US">(200)</span>.
As with national defense, welfare must bee seen as a way to gain poor
people's cooperation in the fight against crime, from which they
might otherwise have taken advantage. To avoid being plundered, the
rich then pay the poor through government. That is more or less what
in ancient times English people ‒rich
and poor‒ paid to
vikings to gain peace. Not to be robbed, they paid what was known as
“danegeld”, the money paid to pirates to gain their forbearance.</span></p>
<p lang="es-ES" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><br /><b>If you
protect rights, you favor the rich</b></span></p>
<p lang="es-ES" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> In words
that would have made Karl Marx very proud, <span lang="en-US">Holmes
and Sunstein tell us that “Like wealth, poverty in America is in
important ways a product of political and legal choices. Our law of
property </span><span lang="en-US">‒</span><span lang="en-US">which
includes rules governing inheritance</span><span lang="en-US">‒</span><span lang="en-US">
determines who 'lacks resources'. Without government and law, some of
the propertyless would quickly be able to procure considerable
resources by private violence or stealth” (200).</span></span></p>
<p lang="es-ES" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"><span lang="en-US"> With
the help of the authors we discover that law does not treat people
equally. The law “determines” that some lack resources. </span>Moreover,
the professors add that those who have more resources can take better
advantage of the protection and services provided by the state. On
that basis they conclude that “This partiality of supposedly
impartial rights to those endowed, for whatever reasons, with private
resources is troubling” <span lang="en-US">(203)</span>.</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> But then
one wonders why do Holmes and Sunstein apply that reasoning only to
the protection of property rights. <span lang="es-ES">They</span>
might <span lang="es-ES">as well </span>point out that laws do not
allow a man to satisfy his sexual appetite by raping a woman. Is that
equal treatment? Is it not clear that the man should be compensated
in some form so has to gain his cooperation, to make him feel that he
is “included” by the system, so that his good will is not
dependent only on coercion?</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> And what
about free speech? Laws restrict people from silencing by force those
who publish newspaper articles that they don't like. But then,
according to the above reasoning, they are not treated equally. The
law favors the infidel against the offended follower of the Prophet.
At the very least the cooperation of the latter must be paid by taxes
collected from the infidels. Otherwise the glaring inequality would
remain as a mockery of our laws solemn declarations.</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Of course
<span lang="es-ES">Holmes and Sunstein</span> would<span lang="es-ES">n't</span>
argue that way when it comes to the laws that forbid rape and the
suppression of free speech. But then, it seems that it is done with
the laws that forbid robbery and looting because of the underlying
assumption that property rights are less satisfactory in moral terms.
<span lang="es-ES">Nevertheless,</span> that is an assumption that
Holmes and Sunstein never make explicit and never attempt to prove.
In other words, it is a prejudice against property rights under the
guise of a hard-nosed examination of our legal system and its costs.</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> Indeed,
there is a definite effort of academics and judges to make property a
lesser right. American law scholar James W. Ely Jr. has accurately
described the push that, starting in the New Deal, tried to make
property rights more vague and less protected against government
intervention. Early on there were many who fought against that trend.
Ely writes “Even during the heyday of post-New Deal liberalism,
some jurists criticized the subordination of property rights. In 1958
Learned Hand, a prominent federal circuit court judge, questioned
whether there was a principled distinction between personal and
property rights. He observed that 'it would have seemed a strange
anomaly' to framers of the Fifth Amendment 'to learn that they
constituted severer restrictions as to Liberty than Property'. Hand
added that here was 'no constitutional basis' for asserting greater
judicial supervision over personal freedom than over economic
liberty.”</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> “Speaking
for the Supreme Court, Justice Potter Stewart amplified this view in
Lynch v. Household Finance Corp. (1972). Stewart declared 'that the
dichotomy between personal liberties and property rights is a false
one. Property does not have rights, People have rights<span lang="es-ES">'</span>.
In language evoking the attitudes of the framers, he further stated,
'In fact, a fundamental interdependence exists between the personal
right to liberty and the personal right in property. Neither could
have meaning without the other. That rights in property are basic
civil rights has long been recognized.<span lang="es-ES">'</span>
Stewart's linkage of property rights with individual liberty
contradicted a major tenet of New Deal constitutionalism...” (Ely,
James W. Jr.: The Guardian of Every Other Right. A Constitutional
History of Property Rights, Oxford University Press 3<sup>rd</sup>
edition, 150-151).</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> It is no
surprise that Cass Sunstein, who has proclaimed himself an admirer of
the New Deal and even wants to expand its program, thinks that it is
permissible to reason about the safeguard of property rights in ways
that would be preposterous if applied to other <span lang="es-ES">personal</span>
rights.</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> That
property rights are second rank rights is simply taken for granted by
too many academics and judges. And it is revealing that when
Argentina's Federal Supreme Court published two online books with
what the Court itself sees as its landmark decisions, the judges
didn't feel necessary to include cases concerning the safeguard of
property ‒which were
always included in older listings used when I studied law. In the
sections about “Fundamental Rights” we see decisions concerning
discrimination, right to information, privacy, right to die, etc.
Then we find sections about political rights, labor rights, social
rights, cultural rights, right to housing, rights of unions,
collective rights, etc. Property is nowhere ‒which
is perhaps the best summary of the Court's performance (<a href="https://www.csjn.gov.ar/files/documentos/conmemoracin-25-aos-reforma-constitucional.pdf" target="_blank">link1</a>, <a href="https://sj.csjn.gov.ar/sj/suplementos.do?method=ver&data=relevantes2003_2016" target="_blank">link2</a>).</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><b><span style="font-family: georgia; font-size: large;">Two
kinds of welfare, and the perils of clientelism</span></b></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> As we have
seen, Holmes and Sunstein set forth arguments to justify government
provided welfare, and ‒in
a second step‒ Sunstein
has written a book dedicated to arguing for its expansion. I <span lang="es-ES">have
tried to show</span> that their reasoning is fallacious and <span lang="es-ES">that
</span>their references to history are inaccurate. Nevertheless one
of the oddest things about their arguments is that they omit to take
into account <span lang="es-ES">one of the</span> most obvious
motive<span lang="es-ES">s</span> why governments e<span lang="es-ES">xpand
welfare and entitlements:</span> to get votes.
</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> And this
shows that it is <span lang="es-ES">vital</span> to distinguish two
kinds of welfare,</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;">1 Public
services open to everyone and paid by the whole population</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;">2 Goods
given only to some people, and paid mostly by other people</span></p>
<p lang="en-US" style="margin-bottom: 0.08in;"><span style="font-family: georgia; font-size: large;"> E<span lang="es-ES">verywhere</span>
<span lang="es-ES">there is </span>a mixture of the two kinds of
welfare, certainly, but it is relevant <span lang="es-ES">to
distinguish them</span> <span lang="es-ES">because they have
different political effects. Both pose dangers, both tend to i</span>ncrease<span lang="es-ES">
the power of government over people, but the second f</span>orm of
welfare<span lang="es-ES"> creates a system of dependency that
already engulfs a considerable part of the world. That system has
degraded Argentina, my country, from being one of the most prosperous
nations on Earth at the beginning of the XXth century, to a failed
country a century later, where half of the population live in
poverty. From a nation that attracted immigrants from all over the
world, to a place that youngsters leave in search of a better future.
</span>A<span lang="es-ES"> people that </span>used to<span lang="es-ES">
lear</span>n<span lang="es-ES"> from the misakes of other nations </span>is
now <span lang="es-ES">a disillutioned crowd led by fools who embrace
every progressive fad they can find. That decline was e</span>ased<span lang="es-ES">
in no small m</span>easure<span lang="es-ES"> by the clever use of
vague words, intellectual confusion, and the distortion of the past.
</span>One should never assume that they have no consequences.</span></p>Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-89441920772907267402020-06-08T08:38:00.001-07:002020-08-06T05:06:34.085-07:00Carl Menger: the trouble with fiat money and fiat law<div bis_size="{"x":16,"y":26,"w":653,"h":18,"abs_x":160,"abs_y":189}" lang="" style="margin-bottom: 0cm;">
<div bis_size="{"x":16,"y":26,"w":653,"h":18,"abs_x":160,"abs_y":189}">
</div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<br /></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Carl
Menger wrote a famous essay about the origins of money and a less known
one about the origins of law. He showed that in both cases the
process must have been driven by individuals seeking their own
purposes and adapting to each other's actions. That is what we call
spontaneous order today. Menger also mentioned the case of cities,
most of which must have started spontaneously by a small number of
artisans, like blacksmiths and carpenters, settling on a place where
they could provide their services to peasants living in the
surrounding area. Then small merchants joined them, and so on.
Certainly some cities may have been created by royal command, by it
is unrealistic to assume that every village and city started with a
decree. For all we know, spontaneous order must have been the origin
of cities, of money, and of law.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">What I
want to point out here is that Menger's ideas are relevant not only
concerning the origins of money and law, but also about the way they
work today. After all, we cannot assume that the motives that led men
to use indirect means of exchange (money) to achieve their individual
purposes have ceased to work. The same applies to law, as we cannot
conceive that men no longer see the advantages of keeping one's word
or that they have become blind about the dangers of letting criminals
roam free.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Unfortunately
Menger's pioneering work on spontaneous order has been overshadowed
by Friedrich Hayek's better known contributions on the subject.
Nevertheless, they complement each other. Menger dealt with the
origins of money, cities, and law in appendixes to his book
“Investigations into the Methods of the Social Sciences and
Economics”. He limited his remarks to origins because he was
interested in dispelling the notion, popular among German economists,
according to which a national spirit was responsible for the creation
and development of law and the economy. Menger argued that such
explanation was both insufficient and wrong.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">It was
insufficient because it failed to say where that mythical collective
spirit peculiar to each nation came from. Was it part of the race and
transmitted along with the color of the skin and of the eyes? Was it
part of a cultural tradition? If so, how did that tradition started?
But besides being no explanation at all, said Menger, a collective
national spirit was not the working force that created money and law.
To counter that widespread opinion, he provided his own explanation.
And in doing so, he showed to us the importance of spontaneous order.
That he limited his analysis to origins and to primitive times must
be understood in the context of his arguments against the German
school of economics. But if the motives that created money, law, and
many other institutions have not dissapeared, then we should examine
what their influence today is.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Nowadays
we have fiat money, that is, money that unlike a bar of gold has a
value that does not come from people's want for such metal but from a
government's decision. Certainly, governments cannot fix money's
value at will. With the possible exception of politicians, most
people know that the powers of governments in that respect are
limited. When governments carelessly print money, they cause
inflation, which in turn discourages saving, makes markets less
efficient, etc. In short, by ignoring the limits of their powers
governments harm the function that money should serve, they impair
the advantages for which money was originally created by spontaneous
process.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><br />
</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<b><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Fiat
law</span></b></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Much
has been written about fiat money. But I think that we should make
similar observations concerning law. Today we have what we might call
“fiat law” which is no longer the result of a spontaneous process
but results from decisions taken by governments. As with money,
politicians often ignore the reasons that create spontaneous order
and thus proceed to undermine law's value. Sometimes they cause it
simply by inflating the number of laws in a process that makes each
of them less significant, more difficult to understand, and to
enforce. When subjects learn that there are always some statute or
regulation they are violating, even when they try to be punctilious
about their duties, they cease to reprobate legal transgressions.
</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">And it
is not only the sheer number of rules issued by governments,
including supreme courts and, increasingly, international courts.
Certainly, numbers alone create havoc, but there is also the fact
that some of these rules multiply the number of rights and
entitlements. Then they start to undermine each other's worth. A rule
that acknowledges your right to find an occupation or to hire people
would be undermined by another rule that makes it a a duty to give
preference to individuals of a certain race. Or as in Argentina's
Buenos Aires province, a rule that establishes the right the vote for
the candidate of one's preference will be modified by the requirement
that at least half of a party's candidates must be women. Again in
Argentina, a law that recognized people's rights to their own bank
accounts in hard currency was later “complemented” by a another
law that allowed the government to take those savings and in exchange
give bonds in depreciated currency to the savers. Which in turn
becomes necessary if government is to be able to satisfy the millions
of people who have received generous entitlements by -again- other
rules issued by the government.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Spontaneous
order creates a framework for action, one in which good and bad must
be clearly separated. The straight line isn't always fair but when
efforts to improve it make the line too crooked and muddy, law ceases
to work. It makes sense to keep one's word while the impulses that
give rise to spontaneous order are not thwarted. Nevertheless, in
their pursuit of what they call social justice legislators and judges
have multiplied the opportunities for going back on one's word. For
many decades in Argentina, people who default their debts get the
opportunity to argue that the interest rate they promised to pay is
too high -a claim that most often than not is seen as fair by judges,
who then proceed to fix the interest of loans below that of deposits.
By modifying the rate, they make the loan cheaper, indeed cheaper
than any loan available in the market. The trouble is that this is an
advantage that is given only to people who don't pay their debts.
Whereas the reasons that create spontaneous order make
trustworthiness a definite asset, laws often make it a heavy burden.
When legalized tricks become too many and are allowed to work against
spontaneous impulses for too long, one sees -as in Argentina- that
people get used to arguing about the terms of their contracts after
signing them and not before.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><br />
</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<b><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">The
same forces operate today</span></b></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Let's
think. Is it possible to assume that the impulses that created law
are not longer at work today? Menger wrote that men created order,
not by collective decision, but in their efforts to better pursue
their individual goals. All that is present today and still at work.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Lets
take e-commerce. Successful operators in that new field know that
being true to their clients is vital, so in order to pursue their
entrepreneurial goals they build trust. Enforcement through lawyers
and courts -sometimes across national borders- would be cumbersome
and expensive for a man who bought a couple of books on Amazon.
However, it doesn't matter because wise players know that trust is
essential for their business. Hotel managers strive to keep their
rooms clean and comfortable for their guests because they know that a
bad name would damage their prospects. A lawsuit is not so bad
because of the possibility of a sentence to pay damages, but for the
effect on the reputation of a company.
</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Commerce
would not survive a single week if it had to rest entirely on the
work of lawyers and courts. There are individual impulses that keep
order without following any collective purpose; these are the same
impulses that Menger described in his article about the origins of
law.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Police
and courts could not keep crime at bay if the majority of the
population would engage in robbery and murder. The delicate
mechanisms of constitutions would fail very soon if people were
convinced that the rules stamped in them are mere words. South
American history bears witness to that.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><br />
</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<b><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Weakening
spontaneous order</span></b></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Spontaneous
order begins and is kept working because people adapt to each others
expectations and actions. Statutes and codes may reinforce that
order, but they can also injure it. When government bans competition
in an area, the company thus protected can follow its goals without
taking into account their customers expectations. If workers know
that promotion in their job depends only on seniority, then it is
likely that skill and dedication would not flourish in their field.
Employers adapt to bad incentives too. If they realize that laws and
courts make it very costly to dismiss a worker, then they would hire
only the bare minimum of workers.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">It is
an unfortunate fact that many statutes and court decisions that
undermine spontaneous adherence to law don't always show their effect
the day after they are enacted. Although confidence in government
bonds may be damaged very swiftly by arbitrary rulings, the effects
on the levels of crime, on the labor market, on investment have a
delay. In family law, the effects may take decades. Confidence and
decency may endure for a while, and that makes it more difficult for
people to see why they deteriorate.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><br />
</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<b><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Why
is Menger still relevant today?</span></b></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">In
this and two previous articles I have tried to follow the paths
Menger opened. Now I want to tell you how I came to the idea of
writing them.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">When I
wrote <a href="https://rule-of-law-not-of-men.blogspot.com/2011/09/murphy-nagel-sunstein-and-dworkin-on.html" target="_blank">my criticism</a> of Murphy and Nagel's book “The Myth of
Ownership” I found that they repeated once and again the following
argument against ownership: “since there are no property rights
independent from the tax system, taxes cannot violate those rights”
(p. 4).</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">By
that they mean that an individual's creation of wealth cannot be
isolated from the services that governments provide, like judges,
police, roads, which are paid by taxes. Therefore, they argue, it is
absurd to complain against high taxes as if they infringed property
rights. Tax law and regulations are part of that legal framework
within which wealth is created. Therefore legislators can shape and
reshape the meaning of ownership, can tax away most of it, and that
shouldn't reasonably give grounds for complaints. Or should it?</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">The
argument has been repeated by other philosophers (Ronald Dworkin,
Cass Sunstain) and even by politicians (Elizabeth Warren). As I
pointed out in my articles there are many defects in that argument.
If consistently applied it would reject as absurd complaints against
restrictions on any right, not only property. Censorship? Well, one
disseminates ideas within the same legal framework that protects
property, so apparently you shouldn't complain if your opinion is
suppressed. Or should you?</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">There
are other objections to the argument apart from inconsistency -I
pointed them out in my articles on Murphy and Nagel's book. But apart
from them, I said to myself: these people should have read Carl
Menger. He wrote that law started as spontaneous order, that is,
unintentionally created by people who pursued their own goals and
adapted to each other's actions. People must have exchanged property
on things well before law codes where ever written. It isn't true
that there was a tabula rasa, no right to property before legislators
and their advisers started to enact statutes and codes. Even today,
life as we know and enjoy won't last a single week if it had to rest
only on the work of legislators, judges, and law professors</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Wherever
people are able to enjoy the fruit of their efforts and the peace of
their families, wherever law still survives without the constant
presence of fear, of policemen, and jails, the same spontaneous order
is at work.</span></div>
<div lang="" style="margin-bottom: 0cm; text-indent: 0.5cm;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">That
is what decided me to write these articles, trying to follow the lead
of the -unfortunately- very short insights provided by the great Carl
Menger.</span></div>
<br /></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-38432312162645712012019-03-24T07:43:00.001-07:002019-03-24T08:01:48.704-07:00Carl Menger and Edmund Burke, where do rights come from?<br />
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> I</span><span style="font-family: "baskerville old face" , serif;">n
a previous article (<a href="http://rule-of-law-not-of-men.blogspot.com/2018/04/carl-menger-on-origins-of-law.html" target="_blank">link</a>) we saw that Carl Menger traced the origin
of money, cities, and law back to the action of individuals who
pursued their own goals without following any common plan or being
ordered about by any central authority. Unintentionally, they created
an order that was spontaneous. Certainly, an order that grows out of
individual pursuits must include some form of rights over land and
other goods, as means to fulfill individual ends.</span></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Of
course, sooner or later chieftains and kings started to issue their
rules and impose their own order, which in their case wasn't
individual, it was meant for all; it had a common purpose -good or
bad. How exactly this process took place in different lands and
nations is difficult to ascertain. Nevertheless it is unrealistic to
assume that kings and parliaments started issuing commands on a blank
slate. An order that they didn't create <span style="font-family: "baskerville old face" , serif;">—</span>with
rights and duties<span style="font-family: "baskerville old face" , serif;">—</span>
was already in place. So it is not true that, as some assume, every
right and duty owns its existence either to the will of legislators
or to the musings of sages. Certainly, statutes gave rights new
shapes and thinkers inspired changes, but they did it on top of a
spontaneous order that neither of them created.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Unfortunately,
both men in positions of power and revolutionaries often fail to see
how it is possible that an order that is spontaneous works. The
French economist Frederic Bastiat once wrote that people who despise
the free market and its price mechanism do not realize how wonderful
it is that a big city like Paris is fed without any central plan that
tells bakers how much flour to buy and how many loafs of breed to
bake <span style="font-family: "baskerville old face" , serif;">—</span>and so with
potatoes, onions and thousands of other goods.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif;"><span style="font-size: large;"> There
was at the end of the XVIII century an inordinate number of
busybodies full with bright ideas about the way other people would
have to conduct their lives. Worse than that, a good number of them
thought themselves justified in imposing their plans by force. In
such conviction were united both men in government and those who
wanted to overthrow them <span style="font-family: "baskerville old face" , serif;">—</span>it
was simply that the latter thought they had better and more radical
plans to impose on others.</span></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> No
doubt at that time many nations, and in particular France, lived
under very defective rule, the result of centuries of absolute kings
imposing their will on people. The trouble was that on the other side
there were men, revolutionaries and their mentors, even more ruthless
in their disregard of anything and anyone that would hinder their
plans.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><br /></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><b>Edmund
Burke and the Rights of Man</b></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Carl
Menger cites Edmund Burke as one of the first who understood how
wrong they were those who, without understanding spontaneous order,
worked to destroy it. Burke was no denier of natural law. Yet he saw
that it was a very defective ground on which to defend rights, that
is, rights that people must enjoy in the real world, not rights
lingering in some theoretical cloud. Moreover, he realized that, as
it happened in France, natural law could be used to knock down rights
and even lead to tyranny.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> Neither
was Burke an enemy of positive law. On the contrary, he wrote
that “Men cannot enjoy rights of an uncivil and of a civil state
together” (</span><span style="font-family: "baskerville old face" , serif;"><a href="https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/burke/revfrance.pdf" target="_blank">Reflexions on the Revolution in France</a>, p. 50). On the issue of political power
he wrote “Government is not made in virtue of natural rights, which
may and do exist in total independence of it, and exist in much
greater clearness and in a much greater degree of abstract
perfection; but their abstract perfection is their practical defect”
(op. cit. p. 51). In a famous image about the way rights work in a
civil society Burke wrote “These metaphysic </span><span style="font-family: "baskerville old face" , serif;">rights entering into
common life, like rays of light which pierce into a dense medium, are
by the laws of nature refracted from their straight line. Indeed, in
the gross and complicated mass of human passions and concerns the
primitive rights of men undergo such a variety of refractions and
reflections that it becomes absurd to talk of them as if they
continued in the simplicity of their original direction” (op. cit.
p. 52).</span></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> So
Burke didn't deny natural rights and he acknowledged the importance
of positive law. What was he against then? Burke was against positive
law enacted on the basis of abstract reasoning resting only on very
general dogmas. </span>
</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> In
his answer to the French philosophers and their British admirers
Burke wrote that rights should be viewed as the inheritance of people
-of each and every man and woman- and not the result of the will of
the majority among them, or the majority in the assemblies they
elect, or the plans devised by doctrinaires. That was the key element
that distinguished British Glorious Revolution of 1688 from the
French revolution of 1789.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> Burke
compared the results of following English traditions and ancient laws
and those of the theories of philosophers and the experiments of
legislators. Already in his first essay “Vindication of Natural
Society” he had assumed -tongue in cheek- the attitude of those who
disdain the consequences of laws and value them only as the
necessary corollaries of their petty theories. </span>
</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> By
the way, if people had followed Burke's advice, Marxism would have
been discarded long ago, after its horrible consequences had become
manifest in real life. Of course Marxists rejected with scorn the
notion of natural rights, but they too built their systems on a few
abstruse postulates and <span style="font-family: "baskerville old face" , serif;">—</span>as
the French revolutionaries<span style="font-family: "baskerville old face" , serif;">—</span>
where ready to kill anyone who opposed them. Marxists say: the
reasoning looks good to us, so it doesn't matter if in the past all
our patients have died, lets try the same medicine again. This time
it will work.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Burke
was well aware of the many defects in the law of the land as it
stood. But he thought it better to improve on it than to take it down.
He used the image of a mortmain, that is, an estate that cannot be
sold o renounced, but on which one could build. That applied even to
legislatures. Burke wrote: “We entertain a high opinion of the
legislative authority, but we have never dreamt that parliaments had
any right whatever to violate property, to overrule prescription, or
to force a currency of their own fiction in the place of that which
is real and recognized by the law of nations” (op. cit. p. 126).</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Friederick
Hayek agreed. As he wrote in <i>The Road to Serfdom</i>, “The idea
that there is no limit to the powers of the legislator is in part a
result of popular sovereignty and democratic government. It has been
strengthened by the belief that, so long as all actions of the state
are duly authorized by legislation, the Rule of Law will be
preserved. But this is completely to misconceive the meaning of the
Rule of Law. This rule has little to do with the question whether all
actions of government are legal in the juridical sense. They may well
be and yet not conform to the Rule of Law…It may well be that
Hitler has obtained his unlimited powers in a strictly constitutional
manner and that whatever he does is therefore legal in the juridical
sense. But who would suggest for that reason that the Rule of Law
still prevails in Germany?” (p. 91, 50th edition).</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><br /></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><b>A
false dichotomy</b></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Neither
Burke nor Hayek based their convictions on an appeal to natural law
or human rights. They praised the tradition of the rule of law,
painstakingly built, first in Britain and then extended to other
European countries and the United States. Yet the value of that
tradition was not acknowledged by everyone. In Hayek's time (and still today) scholars
offered their readers a misleading choice between positivism ands
natural law. According to the first, we must assume that rights are
the creatures of legislators, who will grant them or take them away A
written constitution does not change significantly that picture
because after all constitutions are voted at constitutional
conventions, also by legislators. That is not a pretty picture.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> Then
we are told that the alternative is to assume that there is a law
that is “natural” in some sense. In its most simple formulation,
natural law is assumed to be woven into the structure of the world
and in every human heart. It is there for us to reveal, to discover
but not to change at will. That is a prettier picture but
unfortunately a very hazy one. </span>
</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> If
the source of that natural law is men's heart then we would have to
explain away the burning of wives at the pyre of their husbands,
practised in India for centuries. We would have to somehow dismiss
the relevance of pogroms practised enthusiastically by people in
Russia and Eastern Europe. Bear in mind that those were not actions
taken by arbitrary rulers and resisted, or at least lamented, by
common people. <i>People</i> did it, and often forced rulers to
accept cruel customs against their better will. Human hearts and the
natural law which, we are told, is written in each of them seem to
have been awkwardly silent in these and many similar cases. Even
sages like Aristotle saw no problem in endorsing slavery. If the
human heart is the pillar on which rights stand, it is a very shaky
one. Let alone the “structure of the universe”.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><br /></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><b>Hazy
natural law</b></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Well
aware of these objections, philosophers have tried to present refined
versions of natural law. Nevertheless, in their efforts to
bulletproof their theories they have distanced natural law from
nature, they no longer claim that it can be deducted in any way from
human nature or the structure of the universe. They readily
recognized that the human heart is no sure source of it. That was bad
enough a concession but at the same time philosophers have made
natural law less similar to law. They no longer try to come up with a
system that could remotely be compared to those that rule nations. By
these means philosophers have have made their theories less
susceptible to attack but also less useful as a weapon against
injustice.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> This
is no place to deal with the theories of Lon Fuller or John Finnis
<span style="font-family: "baskerville old face" , serif;">—</span>two of the most
renowned modern defenders of natural law<span style="font-family: "baskerville old face" , serif;">—</span>
who in different ways have tried to parry the most obvious criticisms
to which a naive version of natural law view is liable. I would just
say that Lon Fuller's strategy avoids the whole issue about the
origin and justification of natural law by arguing that it is already
part of positive law. Fuller says that one cannot understand how
judges (presumably he has in mind Western judges) apply law unless
one takes into account some basic moral principles. Unfortunately,
what he then enumerates are mostly procedural requirements for trials
but he says very little about substantive law. (<a href="http://people.brandeis.edu/~teuber/Positivism%20and%20Fidelity%20to%20Law%20-%20A%20Reply%20to%20Professor%20Hart.pdf" target="_blank">Lon Fuller:Positivism and Fidelity to Law</a>).</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> John
Finnis does take substantive law into account. And he does not, as
Fuller, make the rather self-defeating argument that natural law <span style="font-family: "baskerville old face" , serif;">—</span>or
a bit of it<span style="font-family: "baskerville old face" , serif;">—</span> is in
fact already positive law. The trouble is that Finnis provides only
very general views that could easily be used to justify very
different law systems, with the exception of the most obviously
absurd and arbitrary ones. Concerning the issue of property rights <span style="font-family: "baskerville old face" , serif;">—</span>a
usual subject of controversy<span style="font-family: "baskerville old face" , serif;">—</span>,
he cites Aristotle, who wrote that “property ought to be common in a
sense, but privately speaking generally...possessions should be
privately owned, but common in use; and to train the citizens in this
is the special task of the legislator”. If that wasn't sufficiently
vague, Finnis adds that “the analyses put forward in this section,
even when they are applicable on issues of current political debate
in the reader's community, are not to be taken as if they were
intended as a contribution to any particular such debate” (Finnis,
John: <i>Natural Law and Natural Rights</i>, Oxford University Press
1980, p. 171).</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> As
all modern defenders of natural law do, Finnis does not pretend that
even his highly general remarks would be acknowledged by all men as
truths written in their hearts. Nevertheless, he argues that after
all it is the same in science because -he asserts- all sciences rest
on some epistemic principles that are indemonstrable. He cites
Aquinas, who wrote that some propositions are self-evident only to
the wise (op. cit. p. 32).</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><br /></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><b>Collective
goals dictated from above</b></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> It
is interesting to realize that for all their differences,<span style="color: #26282a;"><span style="font-style: normal;"><span style="font-weight: normal;">
positivism and naturalism tend to converge to similar solutions. The
former relies on the views of legislators, the latter, at the end of
the day, on those of philosophers and wise men. Both authorities will
tell us what in their views is good not just for themselves but for
the community. Appeals to the political power or to the opinions of
wise men are different from appeals to an order that allows
individuals to pursue their own goals.</span></span></span> </span>
</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> While
positivists reserve the job of granting and taking rights to
legislators, natural law champions add above them the pronouncements
of sages who will find for us indemonstrable principles that they will
be able, somehow, to uncover. In modern times it often means the
opinions of Harvard, Yale, Oxford, and Cambridge professors <span style="font-family: "baskerville old face" , serif;">—</span>repeated
in a simplified form by hundreds of other sources. It isn't clear
that their findings are better informed or have more sense than those
of legislators.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> There
is another problem with naturalism, totally independent from the
issue of the soundness of the opinions about it. The fact that we
talk of natural “law” should not hide that it is <span style="font-family: "baskerville old face" , serif;">—</span>if
it exists at all<span style="font-family: "baskerville old face" , serif;">—</span>
something that cannot be viewed as being as detailed as positive law
and thus running parallel to it so that we can contrast them. It is
true that in the past some philosophers thought that they could
deduce a whole system of law from the study of human nature. But
modern thinkers have abandoned that pretension. One may peruse the
many volumes written by John Finnis <span style="font-family: "baskerville old face" , serif;">—</span>perhaps
the most lucid modern defender of natural law<span style="font-family: "baskerville old face" , serif;">—</span>
without finding a clear-cut answer to any of the controversies that
divide people today. I am not saying that Finnis's insights about the
proper ways of reasoning about moral issues are useless. Nor am I
saying that his remarks about what factors should be considered when
pondering about, say distributive justice, have no point. But it is
undeniable that they could be used to support too many answers,
leaving outside only the most obviously wrong ones. The same applies
to other philosophers and law scholars. As long as they remain
abstract and indeterminate, they command assent; as soon as they try
their methods in order to yield a direct answer, they became
controversial and dubious.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Law
philosopher Pauline Westerman wrote an insightful book on the history
of natural law for which she chose the title “<i>The Disintegration
of Natural Law Theory: Aquinas to Finnis</i>”. About the modern
efforts to make natural law less open to objections she wrote
“strictly speaking, the new theory of natural law neither has
anything to do with law nor with nature” (p. 256) and “In fact,
the more these theories are fortified, the less versatile they are in
dealing with practical problems (p. 293)</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> The
trouble is that the very purpose of having a natural law distinct
from positive law was to use the first to assess the second. And it
is very little comfort to say that perhaps even very hazy natural law
theories would exclude Hitlerite and Leninist immorality. Nazis and
communist empire builders are not easily persuaded by lectures about
ways of moral reasoning. We have to be able to deal with subtler
deviations from justice, those that open the road to the worst ones.
Once they have grown into gross arbitrariness, debate is usually
pointless. </span>
</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm; text-align: justify; text-indent: 16px;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> That
is because, as David Hume wrote “It is seldom, that liberty of any
kind is lost all at once. Slavery has so frightful an aspect to men
accustomed to freedom, that it must steal upon them by degrees”.
Lord Macaulay was of the same opinion. He wrote that in medieval
times deviations from the law had a check in the ability of people or
aristocrats (or both) to rise up in arms against royal power, "Our forefathers might indeed safely tolerate a king in a few excesses; for they had in reserve a check which soon brought the fiercest and proudest king to reason, the check of physical force"</span><span style="background-color: #faebd0;">.</span></span><span style="font-family: "baskerville old face" , serif; font-size: large;"> While
the weapons at the disposal of kings were not very different from the
pikes and the swords in the hands of their subjects, there was a
limit that rulers had to take into account. That changed with
professional armies. Moreover, Macaulay argued, in pre-industrial
economies civil wars destroyed huts, cattle, and a few castles.
Recovery took a short time.</span><span style="background-color: #faebd0; font-size: large; text-align: justify; text-indent: 16px;"> </span><span style="font-family: "baskerville old face" , serif; font-size: large;">But in highly developed economies the
material losses are immensely higher and people become reluctant to
risk them. </span><span style="font-family: "baskerville old face" , serif; font-size: large;">It is for these two reasons, says Macaulay, that in modern
nations even small deviations have to be promptly controlled.
(</span><i style="font-family: "Baskerville Old Face", serif; font-size: x-large;"><a href="https://www.gutenberg.org/files/1468/1468-h/1468-h.htm" target="_blank">History of England</a></i><span style="font-family: "baskerville old face" , serif; font-size: large;"><a href="https://www.gutenberg.org/files/1468/1468-h/1468-h.htm" target="_blank">,</a> Vol. 1 p. 23).</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> A
natural law that commands assent as long as its precise meaning
remains uncertain is not very useful in that respect. And today there
are attacks against rights of the more subtle kind, of the kind that,
as Lord Macaulay advised, should be controlled before the issue is no
longer about ideas but about force, no longer about arguments but
about secret police knocking doors at night.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"><b>Natural
rights against the rule of law</b></span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> The
tradition of the rule of law has often been confronted, as Burke
described, by abstract theories about natural law and the rights of
man. In our own time, so-called second and third generation human
rights to free education, to a job, to a basic income, to subsidized
prices, are among the most powerful weapons against the rule of law.
This is exactly what Burke warned against; legislating <span style="font-family: "baskerville old face" , serif;">—</span>be
it from Congress or from the bench<span style="font-family: "baskerville old face" , serif;">—</span>
on the basis of abstract reasoning.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> In
Argentina, law professors waged for decades a relentless war against
the liberal rules in the old Civil Code (“liberal” in its
classical meaning). Starting from a few abstruse postulates (the
unity of the illicit phenomenon, the theory of the “adecuate”
cause) seasoned with Roman maxims never known as law in Rome, they
turned the Code upside down. Already in 1968, they convinced a
military government to amend the Code and establish that applying new
laws to contracts signed before them was not really retroactive.
Finally, towards the end of Cristina Kirchner's government they got
their victory, the complete replacement of the old code and the
enthronement of their doctrines in a new one.</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-size: large;"><span style="font-family: "baskerville old face" , serif;"> Unfortunately,
too many law professors wax lyrical about the new rights that they
discover in the Constitution and human rights conventions but they
have little time for the old rights. The trend includes the federal
Supreme Court, which has recently published a summary of the cases
the Court sees as more relevant in its record, covering the period
2003-2016 (link to the document, in Spanish). The report has a
chapter on cases about “Fundamental Rights” which does not
include property among them. In turn, we find special chapters on
social rights, economic rights, environmental rights, union rights,
collective rights but not one about property rights. </span>
</span></div>
<div lang="en-US" style="margin-bottom: 0.2cm;">
<span style="font-family: "baskerville old face" , serif; font-size: large;"> Yet
there have been very relevant cases on such issue, though there is
very little to boast about them. In 2002 a Peronist government
started confiscating people's dollar bank accounts and giving them
bonds in exchange <span style="font-family: "baskerville old face" , serif;">—which</span>
was done with the approval of most of the opposition. When the Court
declared it was against the Constitution, Congress removed some
judges from the Court and appointed new ones. In 2004 the new
majority in the Court reversed its previous decision <span style="font-family: "baskerville old face" , serif;">—now
</span>taking the dollars was right. In 2013 the same “revamped”
Court rejected the claim of a man who tried to defend his private
retirement account against its confiscation by the government. That
case sealed the fate of the whole system of private pension funds
which then were taken by the government. None of that comes out of
mere chance or whim. In order to pay for the myriad of new special
rights, the old ones must be looted.</span></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-42703187285061379442018-04-02T16:11:00.000-07:002018-04-03T18:07:46.313-07:00Carl Menger on the origins of law<br />
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Carl
Menger was the father of the Austrian School of Economics. Today, we
know better the contributions of those who followed on his path, like
Hayek and Mises, than those of the initiator. Neverthless, I think
that there are still in Menger's works gems of thought that deserve greater
consideration.</span></span></div>
<div align="LEFT" lang="en-US" style="font-style: normal; font-weight: normal; margin-bottom: 0.3cm; orphans: 2; text-indent: 1cm; widows: 2;">
<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">I
plan to write three posts about one of those neglected gems,
Menger's thoughts about the orgins of law. His article has been included as appendix VIII of his book "Investigations into the Method of the Social Sciences" (<a href="https://mises.org/sites/default/files/Investigations%20into%20the%20Method%20of%20the%20Social%20Sciences_5.pdf" target="_blank">link to the book at Mises.org</a>). </span></span></div>
<div align="LEFT" lang="en-US" style="font-style: normal; font-weight: normal; margin-bottom: 0.3cm; orphans: 2; text-indent: 1cm; widows: 2;">
<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">This first post will
tell briefly how he came to the notion of spontaneous order, and how
he applied it to the origins of law. In the second post I will try
to show how Menger provided a better understanding of law than today's
dominant theories. In the last post I will trace a parallel
between Menger's descriptions of the orgins of money and of law and
will suggest that they are relevant not only concerning the origins
of both in the distant <i>past</i> but to understand how money and
law work <i>today</i>. So Menger's little article on the origins of
law sheds light not only on history, but on legal and economic
theory.</span></span></div>
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">How did Menger come to the idea of spontaneous order? A few years after writing his book Principles of Economics (1871), he engaged in a famous debate with German economists who denied the
very possibility of an economic theory. They claimed that economics
had to be dissolved into national history as economic life was merely
another manifestation of an undefined national "spirit". As
part of his reply, Menger wrote about the real origins of economic
institutions, showing that it wasn't a mistical collective spirit
peculiar to every nation that shaped them, but the action of people
who everywhere on earth tried to improve their situation. In his
study, Menger came to the notion of spontaneous order, an order that
results from individual efforts of people who pursue individual goals
by adapting to each other's action. That is how markets work, without
the need of a common national goal, State plan, or Weltanshauung.
The notion of spontaneous order became one of the key ideas of the
Austrian School of Economics. It was later developed by Friedrich
Hayek and many others who followed Menger's insight.</span></span></div>
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">It is well known that Menger
wrote an essay in which he explained that it was spontaneous
order that created money. It is less often mentioned that he applied
the same idea to the origins of cities and of law.</span></span></div>
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Menger
said that the use of money came as the result of spontanous human
actions that weren't commanded by any king or parliament but evolved
from the mutual adaptation of people who pursued their own goals.
Certainly, that is how barter must have started, as it is difficult
to assume that some tribal leader gathered his people some day and
told them: from now on you will have to exchange things. No, barter
must have started by people who shought to improve their situation by
offering things they had in excess -say animal skins- in exchange for
things they lacked -say arrows. By the same spontaneous process -not
following orders-, some individuals came to the idea of using
intermediate objects that were easier to carry and were readily
accepted everywhere. So they would exchange their excess goods for
things they didn't really need, but which they could easly exchange
for those they did need. Skins, salt, pieces of iron, silver, gold
and many other things started to be used as intermediate goods that
facilitated exchange well before any king decided to put his seal on
a coin.</span></span></div>
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">I
won't try to repeat Menger's magnificent article about the origins of
money and must simply recommend the lecture of the original (<a href="https://mises.org/library/origins-money-0" target="_blank">link</a>). But, as
said, I would point out that it is often forgotten that Menger used
the same method he applied to the origins of money, to the more general issue of the origins of
law. </span></span></div>
<div align="LEFT" lang="en-US" style="font-style: normal; font-weight: normal; margin-bottom: 0.3cm; orphans: 2; text-indent: 1cm; widows: 2;">
<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Today
we tend to see law as something made by legislators, perhaps also by
judges, maybe even by regulatory agencies. But we seldom stop to
think that law must have started the same way money started, by the
efforts of individuals who had in mind their own improvement and that
of their families. If it is unrealistic to assume that kings ordered
their people to engage in barter and then to use intermediate goods,
it is even more so to assume that some day a king gathered his
subjects and told them about a bright idea he had that he decided to
call "inheritance", commanding his people to leave their
huts and kattle to their children. </span></span></div>
<div align="LEFT" lang="en-US" style="font-style: normal; font-weight: normal; margin-bottom: 0.3cm; orphans: 2; text-indent: 1cm; widows: 2;">
<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">No,
some people must have started to do these things spontaneously, and
many of them must have observed that those who respected their
neighbours' children inheritance had a better chance of having their
own children's inheritance respected. Of course, as with barter and
money, there must have been variations and even exceptions -tribes
that never came to these practices. But on the whole people tended to
imitate the most sucessful ways of action.</span></span></div>
<div align="LEFT" lang="en-US" style="font-style: normal; font-weight: normal; margin-bottom: 0.3cm; orphans: 2; text-indent: 1cm; widows: 2;">
<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In
commerce, clever individuals in many places around the world must
have observed that it is better to honor your word than to cheat.
That if you manage to trick your neighbour and sell him a sick animal
you won't be able to sell him another one, and probably won't sell
kattle again in the whole village. Others would imitate that
practice. Some must have observed that it is a good thing to isolate
those who broke their promises and refrain to deal with them, which
must have been an informal but effective punishment -as it is still
today.</span></span></div>
<div align="LEFT" lang="en-US" style="font-style: normal; font-weight: normal; margin-bottom: 0.3cm; orphans: 2; text-indent: 1cm; widows: 2;">
<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Some
villagers must have started to use some formal words to stricke their
agreements as a way to be certain about the meaning of what is
promised. That was advantageous as a way to prevent disputes. Doing
it in public must have worked in the same way. Helping others in the
persecution and punishment of robbers and other criminals was bound
to be seen as a way to protect yourself, your family, and the whole
area from suffering future outrages. </span></span></div>
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">None
of this implies that this evolution was perfect and without setbacks.
Nor does it mean that legal practices were uniform (as there was wide
diversity in the objects used to facilitate exchange). Nevertheless,
discovery through experience, insight, and imitation of succesful
practices worked in law as worked in building, cultivation, sailing,
and many other human activities. </span></span></div>
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">We
must understand that "spontaneous" does not mean
"thoughtless". On the contrary: there are the thoughts of
millions of people doing things that benefit each other. It means:
practices and order that arise without anyone commanding people what
to do, and without the need of an agreement on common goals.</span></span></div>
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Menger
says that sooner or later, chieftains must have started to put their
seal on these practices, as they did with money. They must have
organized the persecution of criminals, given protection to
commercial fairs...and too often abused their power. </span></span></div>
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<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">When
kings issued orders, they called them "law" too. More often
than not, it was simply an official seal given to ancient practices
that had emerged spontaneously. Sometimes though, these laws were
truly just the will of the rulers. Nevertheless, kings and governing
bodies must have soon realized that issuing their commands under the
name of "law" gave them an aura of respect that ancestral
customs and rights possessed, and mere personal whim could not
provide. Still, it seems that in some places people refused to use
the same name for law that resulted from their own action and the
edicts of some authority. In Roman law, the word "delicto"
was reserved for those punished by the old rules of the city from time
immemorial. Those other ones created by authorities received the name
of "cuasidelicto", that is, "like delicto", but
different in origin and therefore not to be confused. </span></span></div>
<div align="LEFT" lang="en-US" style="font-style: normal; font-weight: normal; margin-bottom: 0.3cm; orphans: 2; text-indent: 1cm; widows: 2;">
<span style="color: #26282a;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In
modern times, we tend to think that law is simply the expression of
the will of some authority, usually an assembly of legislators. That
is because we see only the end result of a long historical evolution
and, as with money, we tend to assume that everything must have
started as it is today, with some authority putting its seal on
something.</span></span></div>
<br />Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-45356163145175493012016-09-08T04:26:00.001-07:002022-02-24T01:01:13.537-08:00Do International Conventions Prevail Over State Constitutions?<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">In 2007 the Buenos Aires Province Supreme Court decided a case that
shows how far international law has made inroads into federal
nations (<i>de Narváez</i>, <a href="https://juba.scba.gov.ar/VerTextoCompleto.aspx?idFallo=73343" target="_blank">link to the decision in Spanish</a>). At least in theory, Argentina is a federal country with
member states (provinces) that have their own constitutions and local
laws. Nevertheless, for more than a century the three branches of the
federal government have greatly enlarged their powers at the expense
of local authorities, usually without much resistance from them.
Public opinion has remained indifferent to the process. In my last
article I made general remarks about the issue. Now I want to
illustrate it with a case in which a provincial Supreme Court
invalidated a rule in the provincial constitution about the election
for the post of governor, as being contrary to international law.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
A clause in Buenos Aires Province Constitution (Art. 121 inc. 1)
states that governors must have been born in Argentina, or -if born
abroad- be the sons of Argentine parents (this latter provision
contemplates the situation, not uncommon in our history, of political
expatriates). The federal Constitution has the same rule for the post
of President (Art. 89).</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
In 2007 the Colombian-born businessman Francisco De Narváez Steuer
announced his postulation to the post of governor for one of the many
branches of the Peronist party. Two small parties objected on the
grounds of the previously mentioned rule. The issue reached the
provincial Supreme Court which decided to invalidate the
constitutional rule as being contrary to international law.
Evidently, it means that international conventions are superior to
state's constitutions. And as the Argentine federal constitution has
the same rule for the post of president, one may wonder whether
international law might prevail against it too.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
As it is usual with cases that are decisive to the life of the
nation, Argentine academics and jurists have payed no attention to
that ruling. No review, no comment, for or against. The notion that
there is no point in examining the legal arguments of a decision that
is “final” -i.e. that there is no appeal from it- has been
adopted by most Argentine law scholars, at least when the decision
has deep economic or political consequences. Perhaps that comes from
a misconceived "realism", and possibly also from an overcautious
aversion to issues that might not be wholly advantageous from an
academic point of view.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
In a previous article I have made a summary of three federal Supreme
Court's rulings of such kind (<a href="http://rule-of-law-not-of-men.blogspot.com.ar/2015/03/argentina-rift-between-court-and.html" target="_blank">link</a>). The legal arguments that
supported those decisions received very little attention, not only
from journalists, but also from law scholars. I think that such lack
of interest is not prudent. Nevertheless, as I work in a humble
position for the above mentioned local Supreme Court I cannot give an
independent opinion concerning the case of the candidate for the post
of governor. Still, I think it necessary to fill the gap in the
information provided to the public, and at least point out the
momentous relevance of the case -whether one agrees with the judgment
or not.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
The Buenos Aires Province Supreme Court invalidated the rule in the
provincial constitution as being against Article 25.2 of the
International Convention on Civil and Political Rights which states
that
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<i><span style="font-family: "times" , "times new roman" , serif; font-size: large;">Every citizen shall have the right and the opportunity, without
any of the distinctions mentioned in article 2 and without
unreasonable restrictions...(b) To vote and to be elected at genuine
periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of
the will of the electors.</span></i></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
In turn, Article 2 states that</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"><i> Each State Party to the present Covenant undertakes to respect
and to ensure to all individuals within its territory and subject to
its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status. </i>
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="line-height: 150%; text-indent: 0.24in;"><span style="font-family: "times" , "times new roman" , serif; font-size: large;">It must be added that in 1994 the Argentine Federal Constitution was
amended, and that along with many other innovations, a new Article
75.22 enumerates a number of international treaties and conventions
from which Argentina cannot quit unless it is so decided by the vote
of 2/3rds of the federal Congress' members. Among these
hard-to-abandon treaties is the above cited International Convention
on Civil and Political Rights.</span></span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Evidently, no law can alter the
rights recognized in those treaties, unless of course it is voted by
2/3rds
of the Congress' members. Although it is not exactly the same, one
might also
deduce
that laws passed before these treaties where so elevated,
must be considered automatically
altered by the treaties. So
has been generally understood by the courts. However,
the federal Constitution doesn't answer the question whether those
treaties and conventions are above the state's
<i>constitutions</i>.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"><br />
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<b><span style="font-family: "times" , "times new roman" , serif; font-size: large;">The
judges give their arguments</span></b></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Judge de Lázzari was
the first to give his opinion, from
which all the other judges dissented.
He was the only one who said that there was no legal basis for invalidating the requisites that the provincial Constitution establishes for the post of governor. He pointed out that the Federal Constitution itself requires that
candidates for the post of President be citizens born in Argentina,
or if born abroad, be the sons of Argentine parents. Thus he reasoned
that state's constitutions cannot be said to violate the federal
constitution -not even
indirectly- when they require
exactly the same for the post
of governor.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">The
judge added
that the prohibition against discrimination in Article 25.2 of the
International Convention on Civil and Political Rights is somewhat
softened by the caveat that distinctions must be reasonable, and the
dissenting judge found that the requisite in both the local and
federal Constitution was reasonable.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Nevertheless, the
majority of the Court followed judge Hitters vote, who
reasoned thus: it is indisputable that local constitutions cannot
contradict the Federal Constitution. The Federal Constitution
elevates these treaties and conventions above normal statutes, so in
a way they are incorporated into the federal Constitution. Therefore,
if a state's constitution contradicts any of the rules in the
treaties, it is as if it were against the Federal Constitution
itself. He didn't answer his colleague argument -i.e. that the federal Constitution establishes the same requisite. This is customary in Argentine higher courts, where judges seldom mention the arguments they don't share. As a matter of courtesy, their votes run in parallel but never touch each other.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">Judge Pettigiani joined
the majority's answer but provided a different argument for it. He
wrote
that as Buenos Aires Province
constitution forbids discrimination
in very general terms, it
must be understood that it forbids a form of discrimination that
results from one of its own clauses. Therefore, the rule against
governors born abroad must
be considered as if forbidden
by the same provincial
constitution that establishes
it.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">The strategy
of using one article to invalidate another
article in the same
constitution
might seem odd to
those not acquainted with modern methods of interpretation,
but it has been used by renowned authors. Ronald Dworkin, much
admired in Argentina and
cited in this sentence, has
argued that as the US federal Constitution forbids “cruel and
unusual punishments” it may be concluded that it forbids states
from
imposing
the capital punishment. To
the objection that the US
federal Constitution itself
establishes that no one shall
be deprived <i>of life</i>
without the due process of law -a
provision that would be
contradictory if that punishment were forbidden by the same
constitution-,
Dworkin answers
that the founding fathers
might not have been aware that
capital punishment is indeed cruel. They might not have realized that
after banning cruel punishments,
there was no need to provide
procedural guarantees for the trial of capital crimes. Dworkin
declares that at the very
least the question is “open”
which in his parlance means that it is
closed to the states and must
be finally decided
by the federal Supreme Court (<i>Taking
Rights Seriously</i> p. 135, also
in <i>Freedom's Law</i> p.
291).</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
But we must return to our case. Judge Negri joined the majority
although he based his answer on his own arguments. He declared that
it wasn't unreasonable to interpret the prohibition against governors
born abroad as if it didn't actually forbid it. And he stressed that
Colombia, where the would-be candidate was born, was part of
Latin-America, which the judge considered only a part of an
unfortunately dismembered nation.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
At the time the case was decided there were two vacant seats in the
Court. Two judges from a lower court filled the empty places and they
too jointed the majority's opinion. To the argument provided by Judge
Hitters, Judge Domínguez added that according to the federal
Constitution, only the federal government is authorized to pass laws
establishing the the rights that pertain to citizenship. He didn't
address the objection pointed out by judge de Lázzari: federal
legislation -the federal Constitution itself-, establishes the same
restriction. As said, that is the custom in our higher courts.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
As a consequence of this decision, one must understand that
international conventions -at least those that cannot be abandoned
but by 2/3rds of votes in the federal Congress- are above local
(state) constitutions. And as this case shows, that applies not only
to traditional human rights issues, but to matters that influence the
member state's elections and institutions.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"><br />
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<b><span style="font-family: "times" , "times new roman" , serif; font-size: large;">Which international convention prevails?</span></b></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Now we know that conventions prevail over state constitutions, at least according to this decision. But it
must be said that the sentence also means that the International
Covenant on Civil and Political Rights prevails over and renders
ineffective a rule in another international convention listed in the
Argentine federal Constitution. The American Convention of Human
Rights (Pact of San José, Costa Rica) forbids discrimination but
admits that the right to participate in government may be restricted
“on the basis of age, nationality, residence, language, education,
civil and mental capacity, or sentencing by a competent court in
criminal proceedings” (Article 23). Although the issue was not
discussed explicitly in their sentence, it is evident that on this
point the judges in the majority assumed that the International
Covenant prevails over the American Convention. Implicitly, the
majority must have applied the principle known as “pro homine”
which means that rules in human rights conventions shouldn't be
interpreted as restricting others in other conventions or in local
statutes that provide a more extensive protection to human rights.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
So in order to allow provinces to enact a restriction not admitted in
the Covenant, it is not enough to sign a Convention that admits it.
The Covenant would have to be abandoned by 2/3rds of the members of
the federal Congress.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
There is an interpretation that might have made the Covenant, the
Convention, and our constitutions compatible, but which to my
knowledge has never been explored. As we know, there are
multinational states. The former Yugoslavia is the most cited
example, but there are many others. One might think that the
prohibition against discrimination based on nationality for the post
of high governing offices refers to nationals within a multinational
state. So in the former Yugoslavia, Serbs, Croats, etc, should have
had the same right to govern the country where they were born. Today,
for example, Russians should not prevent Tatars born in the Russian
Federation from reaching the highest public offices, etc.
Nevertheless it might be argued that denying the post of president or
governor to people born in a different country is not a violation of
a basic human right. I am not sure whether this construction is
possible. As I said, it was not explored in the case.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;"><br />
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<b><span style="font-family: "times" , "times new roman" , serif; font-size: large;">Conclusion</span></b></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "times" , "times new roman" , serif; font-size: large;">
Though these issues remain indifferent to most of the public, one
cannot discard that future generations might consider important to
inform themselves about them -perhaps even to consider the legal
arguments both of the majority and of the minority. Unfortunately,
the task is not simple. As it happens with most judicial rulings, the
sentence is very long and it is difficult for those untrained to
separate the <i>ratio decidendi</i> from the <i>obiter dicta. </i>These
two Latin expressions point out to a very important distinction. The
former are the real basis for the decision, the latter are general
remarks, opinions of the judges concerning issues not at stake in the
case, etc. I have tried to sum-up the key arguments in a short space
and have avoided legal jargon as far as possible. Certainly the
sentence touches many more matters apart from question about the
requisite for the post of governor that was controverted in the case.
Judge Negri expressed his brotherly love to the Latin portion of the
Americas, Judge Domínguez justly protested against the
discriminatory fees that must be paid by foreigners who want to visit
our national parks, and of course the sentence contains innumerable
references to the decisions of federal and international courts. The
public, which is the sovereign in democracies, should be able to
distinguish what is relevant and what is not. They should be able to
ascertain the consequences of judicial decisions. I see some hints
that the public is starting to feel that not only prudence compels
them to do it, but also the honest pride of living in a free nation.</span></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-10741624687182672002016-03-07T18:04:00.000-08:002020-07-28T07:29:41.832-07:00International Law, a weapon for Federal Government against State's rights<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="line-height: 150%; text-indent: 0.24in;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Who is in charge of applying international treaties within a federal
nation? The natural answer seems to be that it is the federal
government. But that wasn't an issue when treaties covered only limited
matters that were truly international in character, like navigation
along rivers that stretch across many nations, etc. But what happens
when federal governments sign treaties as a way to impose rules on matters that used to be reserved to the states?</span></span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
When federal governments signed treaties meant to secure well defined
fundamental human rights, nobody foresaw any possible clash with local states within each country's borders. But nowadays, international
conventions bestow dozens of rights and entitlements upon everybody, from
enjoyment of the environment, to the rights to a sustainable development, to
participation in cultural activities. Does it mean that those
international agreements transfer such matters to federal
authorities?</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
That is what the Argentine federal Supreme Court seems to assume.
Argentina is a federal nation composed of 23 provinces and one
autonomous city, Buenos Aires, the federal capital. The arrangement resembles to that of the US to some extent,
although the Argentine Constitution makes the federal Congress much
more powerful than its US counterpart. In Argentina, the National
Congress is in charge of enacting not only federal laws, but also
“common” laws, that are uniform throughout the whole nation,
covering criminal, civil, mining, labor, and pensions.
Nevertheless, the federal Constitution says that cases arising on
these matters will be tried in provincial courts which will have the final say on them (art. 75, section 12).</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
Today, that is no longer the case.</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<b style="line-height: 150%; text-indent: 0.24in;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">A power that already had few boundaries</span></b></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
Certainly, the Supreme Court has always been very generous in the
interpretation of its own powers. Around the middle of the 20th
century, the Court started to declare that the above mentioned rule
has an unwritten exception. It decided that cases would't be settled by state courts, that on the contrary, the federal Supreme
Court will have the last word whenever it finds that the local
court's decision is not simply wrong, but arbitrary. That
necessitated a difficult distinction between mere legal error and
arbitrariness, a distinction that the court manages at its own
discretion. Today, most of the cases decided by the federal Supreme
Court -which includes the most significant ones- are of the kind that the
federal Constitution reserves to state judges.</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
At the beginning there were a few timid warnings about this
process of encroachment upon local autonomy. Unfortunately, most
Argentines seldom show concern about matters of principle if the
goal seems to lead to new and more generous entitlements and rights. Law scholars
applauded every step forward taken by the federal Supreme Court, and
cared little when it trampled on State's (“provincias”) rights.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
With an awkward sense of humor that should have been reserved for
lighter issues, the new broader powers that the Court claimed to
possess have been grouped by law scholars under section <i>four</i> of Article 14 of the federal law that defines and limits the
Court's powers (Law 48). Article 14 has only <i>three</i> sections.</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<b style="line-height: 150%; text-indent: 0.24in;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">A new weapon: international law</span></b></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
The previous powers of the federal Supreme Court -already almost
unbounded- today seem small when compared with those that it receives
from international conventions. The Court has established itself as
the guardian of all the rights, guaranties, goals, entitlements, and
pledges declared by international conventions. Of course, that means
that the Court no longer needs to make use of old devices such
as the “fourth” section of Article 14, and it can assert its
reviewing jurisdiction citing solemn international declarations.
Without completely abandoning the cherished imaginary clause that
served the federal Court so well for such a long time, the Court now
uses international law to impose its own interpretation of “common”
statutes previously reserved to local courts. Nowadays the federal
Court even reforms local rules of procedure.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
The federal Argentine Constitution dates back to 1853, but Buenos Aires Province,
by far the largest and most populated, joined the union in
1860. The federal system was adopted as a means to preserve local
autonomy and put an end to civil wars. The Constitution declares
that all powers not expressly delegated to the federal government are retained by the provinces (art. 121).
</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
Without changing that arrangement, the federal Constitution was
amended in 1994 by adding every progressive new right that the
drafters managed to find in foreign constitutions and academic
conferences. They made positive discrimination for elected positions
mandatory, declared collective rights, provided that the federal
Congress has to delegate powers to supranational entities, ordered
cultural plurality, established consumer rights, and guaranteed a
healthy environment to every inhabitant -among many other things.</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
Just in case they forgot a right or two, the members of the
Constitutional Convention of year 1994 incorporated to the federal
Constitution a number of international conventions on genocide,
children's rights, women's rights, discrimination, economic, social,
cultural rights, etc., and provided that Argentina could not get out
of them unless a majority of 2/3 of all members of the federal
Congress decided to do so (art. 75 section 22).
</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
The federal Court set itself to the task of interpreting all these
rules in the light provided by the Inter-American Court of Human
Rights, but also of other international courts -even on
recommendations of international councils and expert bodies. And it
decided to impose its views on each one of the autonomous provinces
that form the Argentine federation.</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<b style="line-height: 150%; text-indent: 0.24in;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Amending criminal procedure</span></b></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
Apart from the its landmark decisions on criminal, civil, and social
security issues (“common” law that still today is theoretically
outside its reviewing powers according to the Constitution) the
federal Court has established new principles that modify local rules
of procedure, an area in which it seldom ventured before, as it is
completely outside the power of federal authorities -be they
judicial, legislative, or executive.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
And yet, some years ago the Supreme Court started to require high
provincial courts to review facts and evidence in appeals against
criminal convictions. The Court imposed its new policy by
invalidating sentences that didn't comply with the new standard (“Casal” case).
That created havoc in those provinces that have public oral trials
and laws that provide appeals limited to matters of law only. The new
rules imposed by the federal Court forced many provinces to multiply
the number of higher tribunals to cope with tasks for which they were
unprepared. Still today, the provinces struggle to adapt the
structure and number of their courts to the rules imposed on them.</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
Along the same lines, the federal Supreme Court has decided that
judges that had ruled on controversies arising during the
investigation of a crime (searches, detention, bail, etc.) could not
decide on the final verdict of guilt or innocence (cases “Llerena”
and “Fraticelli”). The Court argued that a judge that had
authorized a search <i>might</i> afterwards be predisposed against
the defendant, and find it difficult to admit that the person under
investigation was innocent after all. However, in order to require
provinces to provide different judges to such tasks -a matter that is
clearly beyond the Court's or any other federal authority's powers-
the Court had to base its decision on the fundamental right to be
judged by impartial judges, which certainly is recognized by many
international conventions. But in reality the Court never said that
those judges that had decided about searches and bails were <i>actually</i>
partial judges. It only claimed that a law system that provides
different judges for such tasks and for the final decision about
guilt or innocence is better at preventing <i>the risk</i> of having
a partial judge. Nevertheless, all that the federal Court is allowed
to decide is whether a judge has <i>actually</i> failed to his duty
to be impartial -not whether a procedural scheme is better or worse
at preventing such failure. In fact, the federal Court was
redesigning local institutions.</span></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<b style="line-height: 150%; text-indent: 0.24in;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Two problems</span></b></div>
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">
The wide range of issues that are covered by modern international
conventions pose a challenge to federal states. Simply by signing
treaties and conventions, the central government can encroach on the
individual provinces (or states) that form the union. Federal
authorities can always claim that all that they are doing is to
fulfill the nation's new international obligations.</span></div>
<br />
<div style="line-height: 150%; margin-bottom: 0.08in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"> But on top of that, there is a second problem when the advancing
federal authority is the judiciary. While a legislature can plan its
reforms so as to allow for adaptation, a court's decision is almost inevitably retroactive. While legislators enact the rules that will be
applied in the future, judges decide whether rules have been violated
in the past. Federal laws that invade local autonomies can at least
be mindful of time and resources. But federal Court sentences that
alter local rules, by their very nature, create havoc by demanding
immediate compliance. They alter, not only the future, but also the
present, and even the past.</span></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-73004412287214966582015-09-16T16:38:00.000-07:002015-10-04T09:53:01.420-07:00China and Great Britain, two misleading comparisons<div style="line-height: 100%; margin-bottom: 0in;">
<br /></div>
<div style="margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">I have been
following the instructive debates held under the name <i>Intelligence
squared, </i><span style="font-style: normal;">in which two teams of
experts and academics argue for and against a proposition</span><i>.
</i><span style="font-style: normal;">The public votes both before and
after the debate and the questions. </span><span style="font-style: normal;">A
number of those debates have been dedicated to the advantages and
disadvantages of democracy. There was one that questioned whether</span>
<i>Democracy is India's Achille's heel</i>. Another debate was, <i>One
size doesn't fit all: Democracy is not always the best form of
government. </i><span style="font-style: normal;">Yet another one
</span><span style="font-style: normal;">under the title </span><i>Democracy</i><span style="font-style: normal;">,
e</span><i>ven the best ideas may fail. </i><span style="font-style: normal;">There
was a very heated exchange when the issue was, </span><i>Better elected
Islamists than dictators.</i></span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
In one way or another, all these debates were about democracy, and in
particular, its pros and cons for developing countries.
Unfortunately, in most of them the idea and the value of the rule of
law have been neglected or confused with the advantages of having a democratic government. That was clear in a debate about whether
<i>Western liberal democracy would be wrong for China</i><i>.</i></span></div>
<div class="separator" style="clear: both; text-align: center;">
<iframe allowfullscreen="" class="YOUTUBE-iframe-video" data-thumbnail-src="https://i.ytimg.com/vi/EwM9CuGcBgI/0.jpg" frameborder="0" height="266" src="https://www.youtube.com/embed/EwM9CuGcBgI?feature=player_embedded" width="320"></iframe></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><i><br /></i></span></div>
<div style="font-style: normal; margin-bottom: 0in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><br />
</span></div>
<div style="font-style: normal; margin-bottom: 0in;">
<b><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">First misleading
comparison: development in 19<sup>th</sup> century Britain vs 21<sup>st</sup>
century China</span></b></div>
<div style="font-style: normal; margin-bottom: 0in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><br />
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
Arguing against democracy for China, one of the panelists said that
in our time China has far surpassed the speed (the annual rate) of
the economic development achieved by Britain in the 19<sup style="font-style: normal;">th</sup>
century. That was said by Martin Jacques, senior research fellow at
the London School of Economics, former editor of the journal <i>Marxism
Today</i><i style="font-style: normal;">, </i>and author of a book about (or rather against) Margaret
Thatcher. More recently he has written a best-seller book which in
its title gleefully announces <i>T</i><i>he End of the Western World and the
Birth of a New Global Order</i>, a world ruled by China. Right from
the beginning professor Jacques extolled China's spectacular growth,
which he linked to the wise direction of the Communist Party. He has
seconded in more moderate tones by Zhang Weiwei, a writer and a
member of a Chinese think tank who, perhaps not very consistently,
acknowledged that he prefers to live in Paris.
</span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
The point about the growth rate came in answer to another Chinese
panelist (on the other team), Anson Chan, former Chief Secretary of
Hong Kong and campaigner for democracy. She had said that, after all,
China wasn't the only country that achieved fast economic
development, and she mentioned the case of Great Britain in the 19<sup>th</sup>
century. Her argument was in turn answered by Martin Jacques -already
mentioned against democracy- who corrected her and said that the <i>rate</i>
of growth was different, much faster in the case of 21<sup>st</sup> century China.</span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
It is a pity that nobody pointed out to him that comparing rates
without comparing times and circumstances is absolutely flawed.
</span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
People in Great Britain had to develop techniques, improve steam
engines, experiment with turbines, design more efficient steel
furnaces and mines. They had to apply new inventions to ships, making
them bigger, faster, and safer. They have to design locomotives. They
had to establish telegraph lines, build railways, and learn how to
control electric power. Of course, there was trial and error,
inventions that never worked, and wasted effort. In the background we
have the miraculous development of science, the study that went from Chemistry to the movements of the stars.</span></div>
<div style="font-style: normal; margin-bottom: 0in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
In the late 20<sup>th</sup> century and at the beginning of the 21<sup>st</sup>
century, China didn't have to go through the same process. They can
always make use of the latest turbine, they don't have start with the
steam engine. Then can make use of modern chips, they don't have
start with Babbage's wheels. They don't need to create the
mathematics and the physics that help to establish the best designs.
They can transfer all that in one go. Moreover, they had at their
disposal the the know-how, and sometimes even the capital of Western
entrepreneurs. To say triumphantly that in those conditions their
rate of growth was faster than that of those who had to create and
try everything from zero shows a lack of historical perspective that
is alarming, but perhaps not surprising, in a scholar from the London
School of Economics. Certainly there has been remarkable economic
growth in China in the last three decades, but even if it had been
twice as fast it could not reasonably be compared to the industrial
revolution.
</span></div>
<div style="font-style: normal; margin-bottom: 0in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><br />
</span></div>
<div style="font-style: normal; margin-bottom: 0in;">
<b><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Second
misleading comparison: limited democracy in 19<sup>th</sup> century
Great Britain</span></b></div>
<div style="font-style: normal; margin-bottom: 0in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><br />
</span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
Professor Jacques pointed out that not everyone could vote in 19<sup>th</sup>
century Great Britain. As with the rate of growth, that is true but
very misleading. Apart from that fact that at least there were
different parties contending for the vote, the argument leaves out
<i>the rule of law.</i></span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
In Great Britain, long before the franchise was extended to everyone,
there was habeas corpus, property was safe from expropriation,
disputes were decided by independent judges according to non
retroactive rules, and there was freedom of speech.
</span><br />
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"> The team against democracy argued that China would collapse under multiparty democracy (what is one-party democracy?). But what about the rule of law? Would China collapse without censorship? And if so, why?</span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
It is very sad that so many debates focus on the vote, and mention
the rule of law only as a complement that more or less comes together
with democracy. Indeed, if one had to find a ground, a link to
something that would explain the extraordinary improvements and
creativity that flourished in 19<sup>th</sup> century Britain, it
would be the rule of law. Because of it, though not everyone could vote, the government could do very
little damage, it could not thwart a man's attempt to improve his
life and that of his family, and it had very limited means to direct
what an entrepreneur would do.
</span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
Very often in these and other debates, the rule of law is conflated
with democracy, thus making it true by definition that establishing
the vote is a sure means to establishing the rule of law. Of course, it
is not. Indeed, as Friedrick Hayek has pointed out, the modern idea
that “the law” is whatever the majority passes as such, derives
its convincing power from democracy and majority rule. By the way,
constitutions make very little difference on this issue because they
only require a qualified majority. Witness Latin America and its ever
changing constitutions. Whenever the notion that majorities can make
and remake laws and constitutions at their pleasure spreads, when it
is held that <i>right</i> is only what a majority recognizes as such,
then the rule of law is dead.</span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
So perhaps a better argument for the panelists who argued against the
assertion that “Western liberal democracy would be wrong for
China”, would have been that apart from not establishing democracy
(i.e. free elections), China has made very little progress towards
the rule of law. That is a major difference with 19<sup>th</sup>
century Great Britain.</span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">
I would say that the question itself chosen for the debate was framed
in a misleading way. It might imply that more than the vote was
meant. But it also implies that “Western”democracy is merely one
of the many varieties of democracy. It implies that there is some
“Oriental” variety, with contours that are best kept vague. Such
has been the claim of many enemies of democracy: Oh yes, we have
democracy, except that we understand it differently. Such was the
claim of the leaders of the “socialist democratic republics” of
the former Eastern bloc and of many of their fellow travelers in <span style="text-indent: 0.26in;">the
West. We shouldn't hear the same argument again without answering it.</span></span></div>
<div style="font-style: normal; margin-bottom: 0.1in; text-indent: 0.26in;">
<span style="text-indent: 0.26in;"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><br /></span></span></div>
<div style="margin-bottom: 0.1in;">
<b><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">The cultural argument</span></b></div>
<div style="line-height: 100%; margin-bottom: 0.1in; text-indent: 0.26in;">
</div>
<div style="margin-bottom: 0.1in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">As an aside, it is interesting to
mention that the British academic -who argued against democracy for
China- played the argument of respect for a different culture, and
said that we have to “think out the box”, that we don't
understand Chinese history and attitudes, that we must not judge
others from the point of view of “our Western jail”, etc. This
kind of argument almost always wins among Western audiences, in which
the call to suppress judgment about different cultures seems to
activate a Pavlovian reflex. Nevertheless, in this debate the argument failed
because there was actually a Chinese woman in the team arguing for
democracy. Probably it seemed odd that a British academic would tell
her that she doesn't understand Chinese attitudes.</span></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-54822896719476593622015-07-09T08:05:00.001-07:002021-06-03T06:52:35.502-07:00Carlos Santiago Nino on social and economic rights<br />
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">In my last article I made some comments
on the too easy dismissal that Argentine philosopher Carlos Santiago
Nino (1943-1993) made of the idea of spontaneous order. Nino's ideas
have been very influential; he advised President Ricardo Alfonsin in
the 80s, and his books have been required reading in Law Schools for
many decades. He wrote about Ethics, Constitutional and Criminal Law.
Nino was what Americans call a liberal; he presented philosophical
arguments in support of strong State intervention in the economy,
even to severe limitations to property rights. He advocated social
and economic rights. Though Nino was aware of the many Argentina's
ailments -more pointedly in his book <i>A country outside the law-
</i><span style="font-variant: normal;"><span style="font-style: normal;">the
measures he recommended seem to stop half of the way to a real
answer. Though he acknowledged the damage caused by restrictions and
regulations issued by Argentine bureaucrats, though he recognized
that they distorted economic life, Nino opposed deregulation and
suggested replacing today's mess of decrees with a </span></span><span style="font-variant: normal;"><i>rational</i></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">regulation.
Aware of the executive branch's domination over the judiciary in
Argentina, Nino suggested a separation between ordinary courts and a
constitutional court, hoping, he said, the the latter would have a
higher view of policy issues (1). It seems to me that the arrangement
he suggested might crystallize the domination</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">of
politics over the judiciary.</span></span></span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Today, most Argentine academics have
moved to the left of Nino -or perhaps we should say that they have
traveled further on the same track. His main disciple, Buenos Aires
University professor Roberto Gargarella, is a promoter of Analytic
Marxism, a school of thought that tries to use the methods of
analytic philosophy to support Marx's theses. Nevertheless I would
say that Nino prepared the ground. Indeed, we will see that Nino's
main argument for social and economic rights has deep roots in
Socialist and Marxist doctrines.
</span></div>
<div style="break-after: avoid; margin-top: 0.17in; page-break-after: avoid; text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><b>Social
and economic rights as a natural extension of individual rights</b></span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Nino's main strategy was to <i>naturalize</i><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">the
idea of social and economic rights, to deny that there is any
significant difference between them and classic liberal (in the
original sense) rights. He wrote that social and economic rights are</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">simply
a natural extension of those older rights. Moreover, he protested
against the very names used to distinguish both kinds of rights.</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">After
all</span></span><span style="font-variant: normal;"> “</span><span style="font-variant: normal;"><span style="font-style: normal;">social”</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">rights
aren't</span></span><span style="font-variant: normal;"> </span><span style="font-variant: normal;"><span style="font-style: normal;">enjoyed
by groups but by individuals, as any other right is. Nino wrote</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">that
much like those traditional rights to life and personal integrity
which protect conditions necessary for personal autonomy, the new
social and economic rights protect further conditions to it. (2)</span></span></span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Again
in an effort to reject that there is any relevant difference between
older rights and social and economic ones, Nino criticized Hayek's
idea of spontaneous order. I have dedicated my previous article on Nino to criticise his criticism. I would only add that, like Murphy
and Nagel argued in their attempt to bust <i>The Myth
of Ownership, </i><span style="font-variant: normal;"><span style="font-style: normal;">Nino</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">said</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">that
both old and new rights demand State intervention. Government has to
spend money on handouts and subsidies, but it also has to spend on
police and tribunals to protect traditional property rights (3). I
think that in my articles about Murphy and Nagel</span></span><span style="font-variant: normal;"><span style="font-style: normal;">'s
book</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
I have shown</span></span><span style="font-variant: normal;"> </span><span style="font-variant: normal;"><span style="font-style: normal;">that
this argument is sophistic (<a href="http://rule-of-law-not-of-men.blogspot.com.ar/2011/11/who-needs-replacement-for-marxism.html" target="_blank">link</a>). </span></span><i>Both</i><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">traditional
and new rights are protected by policemen and judges; the pockets of
those who receive government aid are protected as well as the pocket
of everyone else. But </span></span><i>on top of that</i><span style="font-variant: normal;"><span style="font-style: normal;">,
social and economic rights require a government</span></span><span style="font-variant: normal;"><span style="font-style: normal;">'s
</span></span><span style="font-variant: normal;"><span style="font-style: normal;">intervention
for their very existence; money has to be first transferred and then
protected. The sophism gains its apparent convincing force from the
suggestion, always implied though never openly stated, that while
traditional rights demand some kind of State action, newer ones
demand another kind of intervention -so at the end of the day we are
just dealing with different ways in which governments spend money.
What is overlooked is that social and economic rights </span></span><i>consist</i><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">of
resources or advantages given by governments, which afterwards are
protected by policemen and judges as any other right is.</span></span></span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><span style="font-variant: normal;"><span style="font-style: normal;">There
is a mistake too in Nino's protest against the distinctive names
given to these new rights, ”social and economic”. He says that
they are simply rights as any other, enjoyed by individuals and not
by groups. Yes, but they</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">enjoy
them </span></span><i>because</i><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">they
belong to a social group. Laws and regulations may give advantages
and money to those whose earnings are below some minimum, or because
they belong to a minority race, or to a union, etc. Being inside or
outside those </span></span><span style="font-variant: normal;"><span style="font-style: normal;">groups</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
is what determines who will enjoy th</span></span><span style="font-variant: normal;"><span style="font-style: normal;">o</span></span><span style="font-variant: normal;"><span style="font-style: normal;">se
rights. Moreover, they are given as a result of a collective
decision. If one decides to overlook these differences (!), one may say
with Nino that</span></span><span style="font-variant: normal;"> </span><span style="font-variant: normal;"><span style="font-style: normal;">after
all they are enjoyed by individuals, as any other right.</span></span></span></div>
<div style="break-after: avoid; margin-top: 0.17in; page-break-after: avoid; text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><b>Actions
and omissions</b></span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><span style="font-variant: normal;"><span style="font-style: normal;">Nino's
</span></span><span style="font-variant: normal;"><span style="font-style: normal;">most
distinctive</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
contribution to the fusion (or confusion) of social and economic
rights with traditional rights </span></span><span style="font-variant: normal;"><span style="font-style: normal;">is</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
</span></span><span style="font-variant: normal;"><span style="font-style: normal;">h</span></span><span style="font-variant: normal;"><span style="font-style: normal;">is
attack on the distinction between actions and omissions. He
acknowledge</span></span><span style="font-variant: normal;"><span style="font-style: normal;">s</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
that everyone intuitively distinguishes between shooting and killing
someone and not giving food to people in need, which may also result
in death. Nevertheless, Nino says that this is just positive morality
-that is, morality actually held by people- and that it is one of the
tenets</span></span><span style="font-variant: normal;"> </span><span style="font-variant: normal;"><span style="font-style: normal;">of
liberalism that every social practice or convention must be subject
to criticism (one might point out that this </span></span><span style="font-variant: normal;"><span style="font-style: normal;">tends</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
to apply only to Western traditional values, but we may leave that
point aside). Nino claims that there is a prejudice against omissions
and that there is no logical</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">way
to distinguish them from actions (4). Both are conditions to results.</span></span></span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><span style="font-variant: normal;"><span style="font-style: normal;">Nino
reminds us that in certain cases we blame people fo</span></span><span style="font-variant: normal;"><span style="font-style: normal;">r
their</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
omissions. For instance, a mother who fails to </span></span><span style="font-variant: normal;"><span style="font-style: normal;">feed</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
her child and thereby kills him will be blamed for it, while a
neighbor who could have done it won't be considered responsible. This
shows, according to Nino, that the notion of cause must be </span></span><span style="font-variant: normal;"><span style="font-style: normal;">linked</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
</span></span><span style="font-variant: normal;"><span style="font-style: normal;">to</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
the notion of duty. Therefore, he wrote, we must invert our usual way
of thought: it is not that we have the duty not to shoot someone
because it will cause his death, or that we have the duty of
providing food to our children because otherwise they will starve. It
is the reverse: we </span></span><i>cause</i><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">results
that violate rights when we have the duty not to cause them, be it by
action or omission.</span></span><span style="font-variant: normal;"><span style="font-style: normal;">(5)</span></span><span style="font-variant: normal;">
</span><span style="font-variant: normal;"><span style="font-style: normal;">Th</span></span><span style="font-variant: normal;"><span style="font-style: normal;">is
would prove Nino's point, that</span></span><span style="font-variant: normal;"><span style="font-style: normal;">
omissions and actions are the same.</span></span></span></div>
<div style="font-style: normal; font-variant: normal; text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">I don't see the use of playing with the notion of cause. First of
all, that we cause or not a result does not depend on our moral
convictions. If a contractor builds a house, there will be a house,
not matter whether building it was his contractual duty or not. A
policeman who kills a criminal really causes his death, no matter
whether it was his duty or not. What duties change is not the result
and its cause, but whether we blame someone for it. And unless we are
mad or have evil purposes, we don't decide whom to blame on whim -we
blame the one who did it. We ask whodunit not who-do-we-like-to-blame.</span></div>
<div style="font-style: normal; font-variant: normal; text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">But worse than Nino's treatment of the notion of cause is his neglect
of an obvious and significant difference between actions and
omissions. I can abstain from trespassing on any of my neighbors'
property while I work in my garden; I omit murdering any man, woman,
children, or beast while I read the newspaper; in fact, I respect
zillions of property rights while I shave in the morning. But if I am
required to perform some positive action, I cannot do other things at
the same time.(5a) Moreover, if that positive right requires not only
time but also resources, then I won't be able to use those resources
for other purposes. Of course, as we assume that these duties are
required by laws, decrees, and regulations, those purposes won't be
chosen by myself. They will be chosen by those who issue those rules.
</span></div>
<div style="font-style: normal; font-variant: normal; text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Taxes provide the illusion that a large number of positive
obligations may be fulfilled at the same time. You just pay what
government requires and then they will bother about priorities and
entitlements. Nevertheless, governments cannot use the same resources
twice. Positive duties always imply trade-offs that must be decided
by authorities: should a dollar be used to increase nurses' salaries,
subsidize some branch of industry, fund medical research, relieve
farmers in debt, or what? So, it is not true that paying taxes allows
me -through government- to do many things at the same time. Time and
resources spent on something are not available for other government's
purposes. And of course, that applies to my own purposes, as the
money I pay in taxes cannot be used to pursue them. But one might
say: at least, by paying taxes I won't be required to fulfill many
duties towards lots of people at the same time, isn't it? At least my
time will remain mine, isn't it? Not quite. Time is money, and money
is time. The money I pay is the product of my time, and the time that
it will take to me to fulfill my own purposes will depend, to a large
extent, on the money that I can spend on them.</span></div>
<div style="font-style: normal; font-variant: normal; text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Nothing of what I said means that every tax is unfair, or that every
government's activity can be replaced by private efforts. But it
means that it is wrong to argue, as Nino does, that actions and
omissions are equivalent, and that social rights are no different
from individual rights. Nino himself seems to realize that too many
positive duties to provide for increasing social and economic rights
might result in less room for personal life choices and more power to
authorities. However, as he often does, Nino's answer to this danger
-perhaps the gravest one in politics- is that the right balance
between positive and negative duties must be left to be decided by
democratic debate. (6)</span></div>
<div style="font-style: normal; font-variant: normal; text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Certainly, there isn't much sense in asking in the abstract whether
actions and omissions have the same moral value, regardless of what
they might consist of. Nevertheless, apart from that misleading
ethical puzzle, there is the political issue. When we come to
consider the chances of liberty and of oppression, we must realize
that rules requiring the performance of duties that will serve social
and economic rights pose dangers that are very different from those
of traditional rights. In that respect, I think that Nino was
fundamentally wrong.(6a)</span></div>
<div style="break-after: avoid; margin-top: 0.17in; page-break-after: avoid; text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><b>Socialist
roots of Nino's argument for social and economic rights</b></span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Before Socialists and Marxists, liberty
was understood as freedom from the oppression of men, be they kings,
party leaders, or even majorities. Socialists and Marxists scorned
that “burgeois” liberty and instead concentrated on the material
conditions that may put limits to man's actions and desires. Their
argument was (and with little variations still is): What is the value
of freedom unless it is freedom from want? Karl Marx put a twist to
it by saying that exclusive focus on material conditions was a
requirement of the scientific method, and that all previous talk
about rights and legal guarantees was either nonsense or worse, cheap
propaganda paid by the representatives of the bourgeoisie.</span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Nino does not use socialist
phraseology, but he lumps together classic freedoms and material
conditions. He argues that we must combine liberty and equality and
pursue an equal distribution of liberty (7). Of course, it doesn't
make much sense to pursue an equal distribution of the freedom of
speech, or the freedom to work, or of traveling wherever one chooses,
unless one has in mind a distribution of the material means that are
spent on and gained from the exercise of those freedoms. And that is
certainly Nino's idea. He wouldn't agree with Edmund Burke's classic
summary of the meaning of English liberties: we have the same rights,
but not to the same things.</span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Instead, for his equal distribution
Nino adopts Rawls's scheme (8), inequalities can only be justified if
they improve the condition of those who have less, which -as Rawls
requires- doesn't mean simply to improve to some measure, but improve
more than any other distribution.</span></div>
<div style="break-after: avoid; margin-top: 0.17in; page-break-after: avoid; text-indent: 0.3in;">
<b><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Ideas, <span style="text-indent: 28.8px;">especially bad ones,</span><span style="text-indent: 0.3in;"> have consequences</span></span></b></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">No better place than Argentina to
reveal the consequences of bad ideas. With few and scattered
exceptions, Argentine writers and academics have been promoting every
distorted doctrine that they have found abroad, and that for almost a
century. The results are for everyone to see.</span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">After so much labor from so many people
to promote a new, twisted, collectivist understanding of the notion
of liberty, it isn't mere chance that when in 2013 the Argentine
Supreme Court decided in favor of Cristina Kirchner's government in a
case about a new statute that regulates mass media, they thought it
proper to cite Nino's opinion (<a href="http://rule-of-law-not-of-men.blogspot.com.ar/2015/03/argentina-rift-between-court-and.html" target="_blank">link to an entry with some comments on this ruling</a>). The new statute limits the audience that a company can
reach, so that smaller companies don't have to compete with bigger
ones -or just more popular ones. The system creates captive markets
that are closed to companies that have reached the limit. In fact,
the case and the constitutional challenge was brought by a company
that, before the new rules were enacted, had an audience that was
well above the limit. This meant that the statute effectively
required that company to shrink and to cease offering its programs to
a portion of the audience. Some said that the in fact that was the
only purpose of the new statute -the TV channels and radios owned by
that company are very critical of Cristina Kirchner's government.</span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">The Court's majority opinion said that
free <i>speech</i> must be strongly protected, though the right of
having that speech <i>heard</i> by others may be restricted by “more
intensive” (the judges' words) regulations. But apart from splitting
hairs, the judges said that, according to Nino, democratic consensus
must be achieved by multiple voices, which must have equal
capabilities to introduce their agenda. From that premise, they concluded that
a democracy cannot allow some voices to predominate and thereby make
the debate obscure (paragraph 23 of the majority's opinion). Then it
is right to restrict the number of people that a company can reach,
so that a small channel, or perhaps a government's channel not much
favored by the audience, can have its own public. At this point,
people themselves has become a resource that must be fairly
distributed.</span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">I think that it is most likely that
Nino would have recoiled in horror at the sight of the consequences
that others have drawn from his doctrines. On the other hand, I don't know whether he would have realized how much his doctrines
eased the way to those consequences, perhaps even made them possible.</span></div>
<div style="text-indent: 0.3in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><br /></span></div>
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(1) Un país al
margen de la ley 2005 (A country outside the law –published
after his death) p. 205.</span></div>
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(2) Fundamentos de
Derecho Constitucional 1992 (Foundations of Constitutional Law) 398.</span></div>
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(3) Op. cit. p.
399.</span></div>
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(4) Op. cit. p. 399</span></div>
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(5) Op. cit. p.
190.</span><br />
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(5a) New footnote: In one of his lectures, Nino briefly mentions this objection regarding time (but not costs); nevertheless, that doesn't make him change his position and he sticks to the Rawlsian scheme (Ocho lecciones sobre ética y derecho -Eight lessons on ethics and law- 3rd lesson).</span></div>
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(6) Op. cit. p.
403.</span><br />
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;"><br /></span>
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(6a) New footnote: Nino also deals with actions and omissions in his book Etica y Derechos Humanos (Ethics and Human Rights) p. 317 and relies heavily on Glover's book <i>Causing Death and Saving Lives</i>. Nevertheless, Glover acknowledges that actions and omissions should be treated differently in law, though perhaps not in pure morals (p. 61). As Nino is arguing for legal entitlements, Glover's arguments aren't exactly to the point.</span></div>
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(7) Op. cit. p.
188.</span></div>
<div style="text-indent: 0.3in;">
</div>
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-family: Georgia, Times New Roman, serif; font-size: large;">(8) Op. cit. p.
191.</span></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-12368760223535572922015-05-11T17:01:00.000-07:002016-04-19T14:57:23.971-07:00Carlos Santiago Nino against Hayek<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<i><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In Argentina Friedrich Hayek is often dismissed as a mere defender
of privilege. But in the early 90's an academic, Carlos Santiago
Nino, still thought it necessary to provide some arguments before
rejecting Hayek's ideas. I would like to examine Nino's objections to
the notion of spontaneous order.</span></i><br />
<i><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><br /></span></i></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Carlos Santiago Nino (1943–1993, <a href="http://en.wikipedia.org/wiki/Carlos_Santiago_Nino" target="_blank">link to the wikipedia</a>) was an
Argentine jurist and philosopher. He was very influential in the 80s,
especially when Argentina returned to democracy after the defeat in
the Falklands war. He became personal assistant to President Ricardo
Alfonsin and coordinator of the Council for the Consolidation of
Democracy, a body created by the new government for the purpose of
designing institutional reforms.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Nino was what Americans call “a liberal”. He took the ideas of
the academics that dominated the American and British universities
–among others, John Rawls, Joseph Raz, and Jeremy Waldron–
summarized them and made them popular among Argentine academics. Most
importantly, in a country in which few people are able to read
English, he put everything in Spanish. But he didn't just copy;
though it is true that he adopted the theories that were already
influential in American and British universities in his time (and
remain dominant today), he was a capable thinker himself.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Nino accepted Waldron's idea that the moral justification for
property rights must lead to a redistribution of wealth, even to
limitations on the kind of goods that people are allowed to possess.<a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote1sym" name="sdendnote1anc" sdfixed=""><sup>1</sup></a>
He endorsed the idea of collective rights<a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote2sym" name="sdendnote2anc" sdfixed=""><sup>2</sup></a>,
and made the usual objections against both the efficiency and the
morality of free markets.<a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote3sym" name="sdendnote3anc" sdfixed=""><sup>3</sup></a></span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">From what I have written about Nino's mentors in this blog, it must
be clear that I disagree with him. Nevertheless, Nino was much better
than the kind of intellectual that dominates Argentina at the
beginning of the 21<sup>st</sup> century. While Nino provided
arguments (flawed in my opinion) academics like Eugenio Zaffaroni use
invective and scorn. Nino was under the spell of Oxonian
Analytic-Philosophy. Professor Zaffaroni, recently retired from
Argentine Federal Supreme Court, is an admirer of Michel Foucault. In
fact Nino challenged Zaffaroni's theories in a very instructive
debate. No academic seems able to find courage to do it today.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In the 80's, Nino's friend and like-minded liberal Genaro Carrió had
a very civilized debate with Sebastián Soler, a “liberal” in the
19<sup>th</sup> century sense. At the beginning of the 21's century,
Soler is simply dismissed and insulted. The change in the ideas that
dominate Argentine universities is made clear by the fact that Nino's
main disciple, professor Roberto Gargarella, is a Marxist.<a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote4sym" name="sdendnote4anc" sdfixed=""><sup>4</sup></a></span></div>
<h2 class="western" style="line-height: 150%;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: x-large;"><br /></span></h2>
<h2 class="western" style="line-height: 150%;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: x-large;">
Nino against
spontaneous order</span></h2>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In his book <i>Foundations of Constitutional Law</i> (Fundamentos de
Derecho Constitucional) Nino defended the notion of “positive”
rights –sometimes called economic and social rights– that is,
rights to a positive delivery of goods or services, usually from the
government. In that context, he charged against Hayek's notion of a
spontaneous order. He asserted that it was false and based on a
series of confusions. Nino argued (I translate from p. 399) that “the
market's order is based on the structure of property which, as it is
obvious, is established by statutes deliberately dictated which
validate certain acts of possession and transmission of goods -which
may have not been recognized by them- and attribute to these acts
certain rights and obligations -which may have been given different
effects- statutes that establish punishments against those who interfere with
those rights. Secondly, these statutes are enforced by courts and the
police who are sustained by the product of the obligation to pay
taxes. In the third place, the market works through contracts which
demand statutes, courts, officials, and taxes to sustain them. In
fact, to a greater autonomy of individuals it must correspond a
larger State interventionism in the form of contract execution. And
as more causes of contractual nullity are recognized, there will be
less State interference, in the form of a negative to provide the
public service of coercion to enforce those contracts”.</span></div>
<h2 class="western" style="line-height: 150%;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: x-large;"><br /></span></h2>
<h2 class="western" style="line-height: 150%;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: x-large;">
What is spontaneous
order?</span></h2>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">It is clear to me that Nino failed to understand Hayek's argument.
First of all, he failed to see <i>what</i> is spontaneous: it is
nothing less that the very activity that drives the life of a nation.
Laws establish the formalities of contracts and how they are
enforced, but they neither establish the purposes of these contracts
nor the kind and quantities of things that people buy and sell.
Statutes regulate the rights of inventors and innovators, but they
neither create those inventions nor decide which of them will be
successful in the market.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">The French economist Frederic Bastiat pointed out that we should
marvel at the fact that a big city like Paris is provided with all
sorts of food, clothing for summer and winter, tools, bolts,
cigarettes, and toys, without any authority's decision about how much
fruit, flour, shirts, overcoats, pliers, and teddy bears are to be
produced. Nobody decides how many trucks are needed to move all these
goods. Nevertheless, they arrive in time, each one in proper
quantities, and very little is wasted. That is the fundamental
spontaneous order. That is the order on which the well-being of
people, often their very survival, depends. But we don't marvel at
it, it is so essential to our lives and so pervasive that we take it
for granted.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Moreover, experience shows that it is precisely when authorities
decide that they can impose a better order and take to themselves the
task of deciding how much flour and shirts will be made that these
goods become scarce and poorly made. Socialists of all parties seldom
learn from these experiences; they don't stop and think about the odd
fact that life went better without their orders. As they are unable
to conceive that order might be spontaneous the only lesson they
learn from disaster and hunger is that next time they will appoint
better planners and regulators.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In Italy, Fascists thought that they had found a better way than
marxists and socialists: production would be regulated by boards of
employers and employees. They created corporations where each group
in society (or rather, the groups in which they thought society was
divided) had a place reserved, no matter how many votes they would
have had in a regular election. That system didn't work either.
Nevertheless, in Argentina a large number of people still believe
that order would be better established if only the representatives of
each relevant “sector” of society agreed to “sat down to a
table” (that is the set phrase), have a talk, arrange their
differences, and issue a plan that would secure everyone's
well-being.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Plan by a single authority is bad; plan by committee is worse. What
must be understood is that the problem is not how or by whom these
decisions are made; the problem is that such order won't be
spontaneous.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Furthermore, we must be aware that “spontaneous” does not mean
“thoughtless”. There is much more thought and care involved in
spontaneous order than in any plan or regulation. Except that they
are the thoughts and goals of millions of people who interact and
adapt to each other without anyone bossing them about and telling
what they have to do.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Hayek wrote in his book <i>Law, Legislation, and Liberty</i>: “The
possibility of men living together in peace and to their mutual
advantage without having to agree on common concrete aims, and bound
only by abstract rules of conduct, was perhaps the greatest discovery
mankind ever made” (vol. 2, p. 136). <i>That</i> is the fundamental
spontaneous order, the one that is defined by the fact that it
requires no agreement on collective goals. Marxists, Nazis,
corporatists, nationalists, and socialists of various kinds, thought
(and still think today) that such common goals are indispensable.
They can't conceive an order without them. So fundamental are they
for these groups, their leaders, and intellectuals, that in default
of agreement they are prepared to force people to adhere to their
goals. That they describe them as national purposes, race
world-views, or class interests, is –according to Hayek–
secondary to the fact that all of these doctrines reject an order
that is spontaneous and has not to be directed.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">It is sad that well educated people and even academics like Nino fail
to see that they get most of the goods that made life enjoyable –even
possible– by an order that is spontaneous. The essential order to
which Bastiat, Menger, and Hayek pointed out is not the system of
laws, which of course they acknowledged, but the order that is
established when millions of individual plans –each one different!–
adapt to each other.</span></div>
<h2 class="western" style="line-height: 150%;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: x-large;">
The legal system</span></h2>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">But even laws and codes have much that is spontaneous.
Nobody invented the notion of a contract, or of credit, or of paid
services. Today we have laws about such things, but the practice, and
the very concepts, originated long before those laws. Some people
started exchanging food, firewood, or tools, and many others realized
that they could improve their well-being in that way.
</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">They started using some forms, some words, ceremonies, and written
documents for their agreements. Some thought that it would be a good
idea to produce things they didn't need, just in order to exchange
them for goods they needed. That is the beginning of specialization
and the division of labor. Many of them found that there are certain
goods that are readily accepted by most people, goods that are easy
to transport, and don't get spoiled by the passing of time. Whenever
they were uncertain about their future needs, or whenever they
couldn't find the products they needed, they chose to exchange their
products for those goods, as an intermediate step. These were, with
various degrees of success, chunks of salt, hides, spices, gold,
silver, and many other things. That is, according to the Austrian
economist Carl Menger, the origin of money. In time, laws established
coins and much later, paper money. But contracts, wills, marriage,
property, and money started spontaneously, as parts of an order that
laws secured and modified but seldom (if ever) they created.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Socialists of all parties prise themselves for their realism,
nevertheless they seem to assume that nobody exchanged berries for
firewood, nobody left his cows to his children, before some authority
called people from the villages and adjacent farms and told them that
from then on they will have an institution called “contract” and
another called “will”.</span></div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Those who write statutes and codes find these things <i>already
working</i><span style="font-style: normal;">;</span> they settle some
things, modify others, but seldom invent a new practice from scratch.
Even in the introduction of the French Civil Code, the jurist
Portalis wrote that “codes are made by time, but to speak more
properly, one does not make them”.
</span></div>
<div style="line-height: 100%; margin-bottom: 0in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><br /></span></div>
<div id="sdendnote1">
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote1anc" name="sdendnote1sym">1</a>
See his Fundamentos de Derecho Constitucional (Foundations of
Constitutional Law) p. 364.</span></div>
</div>
<div id="sdendnote2">
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote2anc" name="sdendnote2sym">2</a>
Op. cit. p. 371.</span></div>
</div>
<div id="sdendnote3">
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote3anc" name="sdendnote3sym">3</a>
Op. cit. p. 372-373.</span></div>
</div>
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
</div>
<div id="sdendnote4">
<div style="line-height: 150%; margin-bottom: 0.1in; text-indent: 0.24in;">
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote4anc" name="sdendnote4sym">4</a>
A translator and follower of British Marxist Gerald Cohen.</span></div>
</div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-55994398212512179352015-03-24T15:57:00.000-07:002019-03-21T07:39:34.112-07:00Argentina, the rift between the Court and the President<div font-family:="" liberation="" serif="" style="text-indent: 0.8in;">
<br />
<br /></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">At the end of her
second term, Argentina's President Cristina Kirchner accuses judges,
and especially the Supreme Court, of plotting against her. For their
part, and after long years of awkward silence, some judges and public
prosecutors seem to have recovered their eyesight and are
investigating cases of embezzlement, money laundering, and abuse of
power that reach the president, her son, as well as some very
fortunate new millionaires who are said to be their front-men. On top
of that, <a href="http://www.nytimes.com/interactive/2015/02/07/world/americas/argentina-alberto-nisman-case.html?_r=0">Alberto
Nisman</a>, the prosecutor appointed to investigate the bomb attack
perpetrated in 1994 against the Jewish community AMIA building,
accused Cristina Kirchner of plotting together with the Iranian
government to cover-up the crime. Worst of all, the day before Nisman
had to present his charges in Congress he was found dead in his
apartment. The government never sent a word of solidarity to his
widow and two little daughters.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">All that is in
the news. Nevertheless, the present rift between the federal
judiciary and the President should not hide the fact that the Supreme
Court has decided every key case in favor of Kirchner's government.
It is important to set the record straight. Those who admire the
Kirchner's regime will be less inclined to criticize the Court. On
the other hand, those who deplore their government will be more
realistic in their evaluation of the Court's role.</span></div>
<h1 style="margin-bottom: 0.1in; margin-top: 0in; text-indent: 0.5in;">
<span style="font-size: large;">How the new Supreme Court was
born
</span></h1>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">In December 2001
a civilian coup toppled President Fernando de la Rua. Congress was
dominated by his enemies, both in the Peronist party and even more
virulently in his own party, the Radical party (which, in Argentina, is a center-left moderate party). There was some
haggling over the succession, and Argentina had 4 presidents
appointed successively by Congress in 10 days. Though people in
the streets demanded elections to replace the fallen government, it
was decided not to risk it. Instead, and by an overwhelming majority,
Congress finally chose the candidate who had lost the election against de
la Rua, the Peronist Eduardo Duhalde.
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">The new
government decided to take the dollars people had in their bank
accounts. That was rather unexpected because, beside other
grievances, the immediate motive for the protests against de la Rua
-which led to his demise- had been the limits his government had
imposed on the amount of cash people could withdraw from their bank
accounts -limit that concerned cash, but not other ways of disposing
of their savings. Instead, the newly elected government took people's
dollars and gave bonds in exchange. A law to that effect was duly
approved in Congress by the same combination of forces that toppled
the former president.
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Perhaps already
longing the times when they protested against mere limits on cash
withdrawal, many Argentines went to the courts reclaiming their
dollars, and they won their cases. After a while, appeals reached the
federal Supreme Court. The judges said that in taking the dollars,
the government had violated article 17th of the federal Constitution
which states that "property is inviolable". One of the
first cases was <i>"Smith"</i> and it was followed by <i>"San
Luis" </i><span style="font-style: normal;">(link to the Court's
site</span><span style="font-style: normal;"><a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote1sym" name="sdendnote1anc" sdfixed=""><sup>1</sup></a></span><span style="font-style: normal;">)</span>.
This latter case was peculiar because it involved a provincial
government suing the federal government in order to recover its
dollars –the federal government had taken even the dollars that
belonged to one of the states (provinces) that form Argentina. The
Supreme Court decided in favor of San Luis.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">By that time
Eduardo Duhalde had been replaced by Néstor Kirchner, also a
Peronist, elected president in 2003 with president Duhalde's
patronage. In fact Kirchner had lost the election's first round, but
then the winner –Carlos Menem– retired from the contest and
Kirchner was appointed president without a second run. Meanwhile,
with their decisions confirmed by the highest court of the land,
lower courts were piling up thousands of sentences against the
government and in favor of the right of people to their savings in
foreign currency. Then Kirchner, again with the support of both the
Peronist and Radical parties, decided to change the Supreme
Court.</span></div>
<h1>
<span style="font-size: large;">The new Court changes
course</span></h1>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Then Congress
accused some of the judges of the old Court of having been
subservient to a <i>previous</i> (Menem's) government. Nevertheless,
some argued that the real problem was that they had refused to be
subservient to the <i>new</i> government. Under pressure, three of
the judges retired –one argued
“moral exhaustion”, another denounced an attempt against
his life. Two others refused to retire and were removed by Congress,
still dominated by the same forces that brought down Fernando de
la Rua's government. The Attorney General, whose legal report to the
Court had supported the saver's claims, resigned too and was replaced
by a former Peronist minister. Newspapers, TV channels, and radio
unanimously celebrated those decisions. Now Argentina would have a
Court that would be independent from a previous government!</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">The first three
seats thus emptied where filled by appointing judges Maqueda,
Highton, and Zaffaroni (the first had been President of the Senate
after the coup against de la Rua). The new majority in the Court
reversed the course and declared that taking the dollars was
according to the Constitution (case <i>"Bustos"</i>
10/26/2004). The judges used the occasion to harshly criticize the
former decisions of the Court. They said that they had caused
economic and legal chaos. They scourged the savers who had gone to
the courts and had already recovered their dollars saying that they
had obtained an unfair privilege. They criticized the economic
measures of the two previous governments. They declared that the
so-called property over dollars was “a big fallacy” and gave two
reasons to support that conclusion (paragraph 9, majority's opinion):
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">1. Argentines
don't earn their salaries in dollars</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">2. To exchange Argentine pesos for dollars in currency exchange offices was possible only in border
countries, but not further away</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">I mention this
reasoning because it is a good example of the kind of economic
analysis often displayed by the Argentine Supreme Court. Certainly,
the first argument should have alerted other courts around the globe
of similar fallacies: Swedes don't earn their salaries in dollars,
nor do Russians, Chinese, Japanese, or Lithuanians. They might be
told that their savings in foreign currencies have been transformed
into bonds by the force of a syllogism.
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">The second
argument was considered by many Argentines a decisive proof of the
fallacy. The Court simply repeated that piece of popular wisdom. I
remember that a man told me that at Paris airport he had tried to pay
for a cup of coffee with pesos, and that the waiter had refused them
and demanded Euros. The man adopted that shrewd expression Argentines
show in the many occasions in which they unearth such global
conspiracies and told me that evidently the parity between peso and
dollar had been a big lie concocted by banks and the media for more
than ten years. Of course, he as well as the judges confused the
readiness with which a currency is accepted and its exchange value.
They didn't realize that they couldn't have paid for the cup of
coffee with Swiss Francs, Yens, or Swedish Krona. Moreover, what was
that supposed to prove? That all those currencies not accepted by
waiters have no value, zero value? The waiter in the story didn't ask
for a more favorable exchange rate, he simply rejected the foreign
currency. I failed to convince the man that he was mistaken. No
doubt, the savers failed to convince the judges.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Concurring with
the majority, judge Zaffaroni, the closest to the new government
among the new members of the Court, said that those economists who
had given advice to the two previous administrations should be
criminally persecuted.
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">After further
places had been emptied, two new judges, Lorenzetti and Argibay,
filled them. Then, the new Court in full ratified the precedent
"<i>Bustos</i>" and again declared that taking the dollars
was right (precedent <i>"Massa"</i>). But these two new
judges weren't so assertive in their support to the government's
right to the savings of the population. They produced very odd
opinions: using only general words, judge Lorenzetti warned that it
would be necessary to think carefully about the negative consequences
of the Court's long tradition of "tolerance" (his word) for emergency laws that make inroads into property rights. He recalled
the example of old cases in which, although in single dissenting
opinions, a few judges firmly supported property rights.
Nevertheless, he sided with the new majority.
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Judge Argibay's
opinion was even more peculiar: she explained at length why the
presidential decree that commanded banks to give dollars in private
accounts to the government was against the Constitution and even
declared that the saver had the right on his side. Nevertheless, in a
short final paragraph she said that for "institutional reasons"
(her words) it was "prudent" (idem) to reject the claim.
That was perhaps one of the strangest opinions ever issued in the
history of the Supreme Court.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">More perplexities
were added when in 2007 the Court admitted –with one dissenting
opinion– a claim for the dollars that had been deposited in a bank
during the course of a trial (case “<i>EMM S.R.L.</i>”). It often
happens that in a trial some party has to deposit money in a State
owned bank, sometimes to pay for expenses, sometimes as a caution,
etc. Money in those accounts cannot be extracted without
authorization of the judge in charge of the case. In “<i>EMM”</i>,
the Supreme Court said that the government couldn't take these
dollars from their bank accounts without violating the Constitution.
What was the difference with common bank deposits in dollars? The Court
declared that judges have to protect the goods put under their
custody –a duty which apparently they limited to such goods. And
they added that if the government took those dollars, it would
violate not only property rights but the independence of the
judiciary.
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">In my Spanish
blog I have included a detailed analysis of the Court's ruling<a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote2sym" name="sdendnote2anc" sdfixed=""><sup>2</sup></a>.
In short, we must conclude that in “<i>EMM”</i> the judges
considered that their duty of protecting deposits in foreign currency
made during trials was different from that other –which they must
have deemed much weaker– of protecting dollars deposited in any
other bank account, or of property in general.</span></div>
<h1>
<span style="font-size: large;">The government takes
retirement savings</span></h1>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">A law passed in
1994 allowed workers to choose between a State managed retirement
system and private accounts administered by companies known in
Argentina by the acronym AFJP (Pension Fund Administrators, similar systems exist in many countries). While in
the first scheme money enters a common fund that the government uses for many purposes besides paying pensions, in those privately
administered ones each saver had an individual account. The law
stated that money in those accounts belonged to each saver and that
they could be left as property to heirs.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">These private
funds had invested in Argentine bonds </span><span style="font-size: large; text-indent: 0.5in;">–a law had forced them to do it</span><span style="font-size: large; text-indent: 0.5in;">–</span><span style="font-size: large; text-indent: 0.5in;">, so the future pensioners were
among the main creditors of the State's defaulted debt. In December 2007, at the end of Néstor Kirchner's term, Cristina Kirchner was
elected to replace her husband. A year later, she decided to take the
retirement savings held by people in their individual accounts. In
this way, together with many other assets, the government took
possession of its own bonds and the debt was wiped out.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Some savers sued
the government and in March 2013 one of these cases reached the
Supreme Court (this was of course, the <i>new</i> Court). The judges rejected the claim<a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote3sym" name="sdendnote3anc" sdfixed=""><sup>3</sup></a>.
Their decision is remarkable for its brevity, just three lines. The
judges said that they shared the Attorney General's advice against
the saver. Certainly, it isn't unusual that in very simple cases and
for brevity's sake the Court just asserts that it shares the Attorney
General's reasoning. But never before had a case of such importance
been decided that way. Though the case directly concerned a single
saver, in fact it decided the fate of about ten million future
pensioners, thousands of millions of dollars, assets in Argentina as
well as investments abroad, and in fact the future of the whole
pension system.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Just three lines.
And what was the reasoning provided by the Attorney General that the judges found so convincing? He said
that though the law stated that savings in individual accounts in
pension funds belonged in property to each saver, that wasn't <i>really</i>
property, so the government wasn't <i>really</i> violating the
Constitution's clause that protects property (art. 17 “...property
is inviolable...”). Why wasn't it property? It wasn't because
saving for future retirement was compulsory. Though such savings remained in a private account that the law distinctly declared as property, it wasn't money that the
saver could use immediately, he couldn't touch it before he retired, and that proved –according
to this argument– that the account in the pension fund wasn't
<i>really</i> property.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">The case received
little attention in the media and only a few perfunctory articles were published about it in law reviews.</span></div>
<h1>
<span style="font-size: large;">The battle for the control
of mass media</span></h1>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">In June 2009
Cristina Kirchner's government lost the legislative elections and
therefore its hegemony in both houses of Argentina's Congress. Her
husband and former president Néstor Kirchner had lost the elections
in the most important province, Buenos Aires. Two months later, the
government presented a draft for a law to regulate the mass media:
television and radio. This was called “the mother of all battles”.
As it was announced, the purpose of the law was to fight the few
so-called monopolies that shared the biggest part of the audience in
detriment of others –the State owned channel being among those less
favored by the public. The government proposed to limit the number of
viewers and listeners that each broadcasting company could reach,
thus establishing a fair partition of the audience among them. The
law was approved in Congress though most of the opposition chose not
to be present. Nevertheless, as it has been the case in many other
issues, their objections didn't concern the main points in the law
and were related to matters of form.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">A major media
company, the Clarín group, sued in defense of its broadcasting
license. After having supported the Kirchner's government for some
years, they had become one of their main critics. The case finally
reached the Supreme Court. By a majority of 4 to 1 (and 2 others in
between, with partially dissenting opinions) the judges decided that
the law was constitutional.<a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote4sym" name="sdendnote4anc" sdfixed=""><sup>4</sup></a>
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">The objections
against the new statute covered both its main technique of dividing
the audience among companies and the fact that it violated
broadcasting licenses still in vigor. The law forced Clarín to
“disinvest” (that was the word in the new statute), to shrink its
size, well before its licenses had finished. As mentioned, 4 judges
said all was unobjectionable, 1 said both things were against the
Constitution, 1 said that though the main system was OK, the
government had to wait till the licenses granted under the previous
law had finished, and 1 also said that the government had to wait,
but that it was better for the Court to postpone its decision about
whether the system was constitutional till that time. That last
opinion was judge Argibay's and was remarkable because there won't be
any future occasion to discuss the matter. Judge Argibay must have
understood perfectly well that, as all the other judges gave their
views concerning the objections against the main system, the
plaintiff won't have another chance to challenge the statute.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">In total, there
were 5 judges who said that the limits to the number of people who
can view a TV channel or listen to some radio broadcaster don't
affect freedom of expression. Judge Fayt said it did (judge Argibay
dodged the issue). The majority's argument was that the size of the
public anyone can reach isn't relevant. Judge Maqueda asked, isn't it
true that the freedom enjoyed by a little local radio station is no
different from that of a big media company? Both are free. So if a
law forces the latter to shrink to the size of the former, freedom of
expression in itself isn't violated. As long as some way of
expressing one's opinions is preserved, there is no constitutional
objection, only a matter of size. The majority said that as long as a
media company isn't “asphyxiated” by regulation (their word,
pages 11, 38, 94 of the sentence), freedom isn't affected.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Furthermore, the
judges distinguished between what they called individual and
collective freedom of expression. The first is simply the right to
voice one's opinions. The judges acknowledged that in that respect,
restrictions must be carefully scrutinized. On the other hand, there
is a collective freedom: that of those who may listen to those
opinions. In that respect, State regulation may be more “intense”(the
judges' word, page 38).
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">The judges used
yet another distinction: they said that there are two ways to fight
monopolies. Government can suppress them if and when they appear, or
–without waiting for that– it can regulate beforehand how people
can access information so that they receive a well balanced stream of
information (page 36). I have dedicated two articles to the Court's
decision in my Spanish blog. There I argued that in fact, these
aren't two different techniques, but two different goals. To monitor
and shape the kind of information the population receives (checking
whether it is fair and balanced, according to the authorities) is a
goal very different from that –much more limited– of fighting
monopolies. In his dissenting opinion, judge Fayt said that to
replace people's judgment with that of the authorities is the essence
of unconstitutional paternalism (page 338).</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Judge Zaffaroni,
always more prone to ideological pronouncements, concurred with the
majority and said that nobody can doubt that the mass media has an
influence on people's ideas, tastes, fears, stereotypes, aesthetic
judgment, even people's language and existential goals. He said that
dominant economic groups may make people more culturally homogeneous,
in detriment of diversity. He concluded that in a time in which
technology changes communication in revolutionary ways, a government
that leaves that power to monopolies commits “cultural suicide”
(page 77).</span></div>
<h1>
<span style="font-size: large;">General indifference, no
debate of ideas</span></h1>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">Most Argentines
have shown no interest in the cases here reviewed. Journalists have
covered them as battles where the only relevant question is, Who is
the winner, who has managed to impose his will? Though the Court's
decisions are easily accessible on the web, journalists never cared to look at them and examine the reasons presented by each side.
Only a few academics published some articles in law reviews.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">The Argentine
legal philosopher Carlos Santiago Nino, many times cited by the Court
itself, wrote that Argentines suffer from anomie, a lack of interest
about their own future.<a class="sdendnoteanc" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote5sym" name="sdendnote5anc" sdfixed=""><sup>5</sup></a>
Nino died before any of these Court controversies took place, but in
them he would have found ample justification for his remark.</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;">This post is not
the place to analyze why so many Argentines limit their attention to
soccer. Nevertheless, I will add that even among politicians and
academics, the debates seldom tackle fundamental questions. And when
there is a rift, it often takes place between people who share the
same fundamental view. They only dispute who is better prepared to
realize it. People who have struggled together for power often become
bitter enemies once they conquer it.
</span></div>
<div style="margin-bottom: 0.1in; text-indent: 0.5in;">
<span style="font-size: large;"><br /></span>
<span style="font-size: large;"><br /></span></div>
<div id="sdendnote1">
<div class="sdendnote">
<span style="font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote1anc" name="sdendnote1sym">1</a>These
and other cases commented here can be found in full text in the
Argentina's Supreme Court web site (in Spanish):
<a href="http://www.csjn.gov.ar/data/em_econom2.pdf"><b>www.csjn.gov.ar</b>/data/em_econom<b>2</b>.pdf</a>.
This is a document that collects most of the cases related to
emergency decrees and laws.</span></div>
<div class="sdendnote">
<span style="font-size: large;"><br /></span></div>
</div>
<div id="sdendnote2">
<div class="sdendnote">
<span style="font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote2anc" name="sdendnote2sym">2</a><a href="http://arielbarbero.blogspot.com.ar/2011/04/area-de-reserva-vs-independencia-de-los.html">http://arielbarbero.blogspot.com.ar/2011/04/area-de-reserva-vs-independencia-de-los.html</a></span></div>
<div class="sdendnote">
<span style="font-size: large;"><br /></span></div>
</div>
<div id="sdendnote3">
<div class="sdendnote" style="margin-bottom: 0.2in;">
<span style="font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote3anc" name="sdendnote3sym">3</a>Case
R. 37. XLVI. RHE; ROSSI PABLO ARIEL c/ ESTADO NACIONAL - MINISTERIO
DE TRABAJO EMPLEO Y SEGURIDAD SOCIAL Y OTROS Y OTRO s/AMPAROS Y
SUMARISIMOS; 26/03/2013. Unfortunately, there is no direct link to
the decision. Nevertheless, it can be retrieved from the search page
of the Supreme Court:
<a href="http://servicios.csjn.gov.ar/confal/ConsultaCompletaFallos.do?method=iniciaConsulta">http://servicios.csjn.gov.ar/confal/ConsultaCompletaFallos.do?method=iniciaConsulta</a></span></div>
</div>
<div id="sdendnote4">
<div class="sdendnote">
<span style="font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote4anc" name="sdendnote4sym">4</a>There
are two detailed articles about this decision in my Spanish blog, as
well as a link to the full text of the sentence (all in Spanish):
<a href="http://arielbarbero.blogspot.com.ar/2013/11/conceptos-juridicos-del-fallo-clarin.html">http://arielbarbero.blogspot.com.ar/2013/11/conceptos-juridicos-del-fallo-clarin.html</a>
and
<a href="http://arielbarbero.blogspot.com.ar/2013/11/derechos-adquiridos-y-ley-de-medios.html">http://arielbarbero.blogspot.com.ar/2013/11/derechos-adquiridos-y-ley-de-medios.html</a></span></div>
<div class="sdendnote">
<span style="font-size: large;"><br /></span></div>
</div>
<span style="font-size: large;"><br /></span>
<br />
<div id="sdendnote5">
<div class="sdendnote">
<span style="font-size: large;"><a class="sdendnotesym" href="https://www.blogger.com/blogger.g?blogID=4041459783788618525#sdendnote5anc" name="sdendnote5sym">5</a>Nino,
Carlos Santiago: Un país al margen de la ley [A country outside the
law] published in 2005, many years after his death.</span></div>
</div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-4470639356085611112015-02-17T16:35:00.000-08:002015-07-09T08:06:58.536-07:00Argentina abandons legality, by law<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large; text-indent: 35.45pt;"><br /></span><span style="text-indent: 47.2666664123535px;"></span><span style="font-size: large; text-indent: 35.45pt;"><b>Argentina's new Civil Code formally rejects the rule of law</b></span><br />
<span style="font-size: large; text-indent: 35.45pt;"><b><br /></b></span>
<span style="font-size: large; text-indent: 35.45pt;"> In October 2014 Cristina Kirchner's government enacted a <a href="http://www.infojus.gob.ar/nuevo-codigo-civil-y-comercial-de-la-nacion" target="_blank">new Civil Code</a> replacing the one that had been in vigor since 1871. The <a href="http://www.infoleg.gov.ar/infolegInternet/anexos/105000-109999/109481/texact.htm" target="_blank">old code</a> was one of many magnificent legacies </span><span style="font-size: large; text-indent: 47.2666664123535px;">left by</span><span style="font-size: large; text-indent: 35.45pt;"> the generation that once made Argentina the 6th economy in the world. Now Argentines have decided to reject that legacy, formally, by law.</span><br />
<span style="font-size: large; text-indent: 35.45pt;"> In fact the old code had been rejected by Argentine doctrinaires long ago. Now that rejection has become a law, a new Code. This is the doctrinaires' final victory, the end of their long struggle against the principles of liberty protected by precise rules in the old code. As far back as the 1930s, coinciding with the shift of the majority of Argentine intellectuals from "old fashioned" liberalism to "modern" nationalism, statism, and interventionism, they started a relentless campaign for the abrogation of the old code. Their tactic was two-pronged: law professors promoted new imaginative interpretations of the old rules, more in line with the ideas they deemed progressive -and judges adopted them with gusto. At the same time, conscious that their constructions were highly dubious, they clamored for a new code that would truly adopt the new doctrines.</span><br />
<span style="font-size: large; text-indent: 35.45pt;"> For that reason, and during many decades, law students were introduced by their professors to a very odd scenario: they were told that a new and better code would soon replace the old one, but that such substitution would change nothing. Why? because the old rules -correctly interpreted- already coincided with those proposed to replace them.</span><br />
<span style="font-size: large; text-indent: 35.45pt;"><br /></span>
<br />
<h3>
<span style="font-size: large; text-indent: 35.45pt;"><b>Article 1066: old-fashioned freedom</b></span></h3>
<br />
<span style="font-size: large; text-indent: 35.45pt;"> One of the most offensive principles in the old code was article 1066, placed at the very beginning of the code's section on torts (for non-lawyers: torts are actions against the law for which the wrong-doer has to compensate the victim, paying for the damages caused).</span><br />
<span style="font-size: large; text-indent: 35.45pt;"> Article 1066 stated that if you haven't done anything forbidden by law, then you couldn't be condemned to pay damages to anyone. That sounds pretty reasonable: if you keep yourself within the law, you are free from claims from anyone. How uncertain would you fate be it you couldn't be sure of that!</span><br />
<span style="font-size: large; text-indent: 35.45pt;"> Nevertheless, it had to go. The principle is squarely against the authoritarian statist doctrines that became fashionable in Argentina in the 1930s and still prevail. Law professors such as Borda, Llambías, Alterini, Bueres (to mention only a few at the top of the academic pyramid) argued that it was unacceptable that the powers of judges and their desire to impose justice would be restrained merely because Congress had been slow in passing a law forbidding some action. Wouldn't it be better to allow judges the liberty to decide according to their good sense, beyond the law, and enlightened by the new doctrines about a modern society's needs?</span><br />
<span style="font-size: large;"> The reader may have noticed that this new liberty for judges means an equivalent lack of liberty for the common man.</span><br />
<span style="text-indent: 35.45pt;"><span style="font-size: large;"> Following another line of attack law professors complained that it was too cumbersome to require a law in order to make something illegal, as did article 1066 of the old Civil Code. Why not a presidential decree or a regulation issued by some ministry? In the old times, before statism seized Argentina, it was thought that the president alone -much less his ministers- couldn't make something illegal thereby forcing anyone to pay damages for it. But that restriction was considered inappropriate for modern times, a relic from the 19th century, from the times of the much detested liberalism. It had to go.</span></span><br />
<span style="font-size: large; text-indent: 35.45pt;"><br /></span>
<br />
<h3>
<span style="font-size: large; text-indent: 35.45pt;"><b>An illusory safeguard against arbitrariness</b></span></h3>
<br />
<span style="font-size: large; text-indent: 35.45pt;"> The new code was enacted in October 2014 and will rule Argentina starting in August 1, 2015 -though some judges couldn't control their excitement and began citing its provisions even before it had been approved by Congress. </span><br />
<span style="font-size: large; text-indent: 35.45pt;"> The new code removes the hated restriction on the powers of judges: now they can condemn people to pay damages without even asserting that they had violated any law. Nevertheless, people are told that it doesn't mean that they are absolutely at the mercy of the good or bad sense of judges. There is a safeguard: an action that constitutes the exercise of a right cannot be considered a tort, and consequently cannot provide grounds for compensation. </span><br />
<span style="font-size: large; text-indent: 35.45pt;"> That safeguard is considerably weakened by the caveat, also included in the code, that rights must be exercised according to the goals pursued by the entire legal order (including not just laws but also presidential decrees, ministerial orders, etc.). So you don't simply use your rights to pursue your own goals, you have to consider those of the legal order (whatever that may mean). This is an extension of the idea, long ago adopted by most Argentine doctrinaires, that property rights are "social functions" rather than individual rights. Now <i>every</i> right will be subject to the same limitation. </span><br />
<span style="font-size: large; text-indent: 35.45pt;"><br /></span><span style="text-indent: 47.2666664123535px;"></span>
<br />
<h3>
<span style="font-size: large; text-indent: 35.45pt;"><b>The logical contradiction in the new code</b></span></h3>
<br />
<span style="font-size: large; text-indent: 35.45pt;"> But even if we leave aside that weakening proviso about the meaning and substance of rights, the alleged safeguard involves a logical contradiction. I have written about it at length in a book (1) and in many articles in </span><span style="font-size: large; text-indent: 35.45pt;">La Ley</span><span style="font-size: large; text-indent: 35.45pt;"><i> </i>Law Review -one of the most prestigious</span><span style="font-size: large; text-indent: 35.45pt;"> in Argentina. To this date, no answer has been given, no way out of the contradiction has been shown.</span><br />
<span style="font-size: large; text-indent: 35.45pt;"> The contradiction is this: the new code states that one can be condemned without having violated any law, though not if one was exercising one's rights. But that may mean two very different things: </span><br />
<span style="font-size: large; text-indent: 35.45pt;"> a) Do I need a right that I have purchased, or rented, or inherited from my parents, or that was given to me in any other way? That is called a "subjective right" in continental jurisprudence -a "title" is perhaps the closest common-law version. </span><br />
<span style="font-size: large; text-indent: 35.45pt;"> b) Or is it enough that by "exercising a right" we mean that I do whatever isn't forbidden by law, that is, what we call "freedom"?</span><br />
<span style="font-size: large;"> The first alternative is horrible: it would mean that I could do only what is expressly granted to me. Nobody has dared to openly defend that monstrous system. </span><br />
<span style="font-size: large;"> The second alternative is more reasonable: it means that I can do whatever is not forbidden by law without fear of any claim against my pocket. But if the new code means this, it has returned by a circuitous and confusing road to the old system: to the much reviled old fashioned notion that there can be no tort unless one does what the law forbids. </span><br />
<span style="font-size: large;"> The answer of the new code to this fundamental question about the powers of authorities and the liberties of people is -to say the least- uncertain. The principle that guards liberty in the old code is formally rejected. Nevertheless, a limit to judicial arbitrariness is provided that involves a contradiction: it means either that the old principle has not really been rejected, or that Argentina has inadvertently adopted a monstrous system in which everything that is not expressly allowed to people is forbidden to them.</span><br />
<span style="font-size: large;"> An idle logician might argue that the new system is still based on the rule of law: precisely on the legal rule that authorizes judges to condemn people who have violated no law. But </span><span style="font-size: large; text-indent: 47.2666664123535px;">by now </span><span style="font-size: large; text-indent: 35.45pt;">we should have learned the lessons taught by Hayek: the rule of law has nothing to do with the fact that some majority has enacted some arbitrary rule.</span><br />
<span style="font-size: large; text-indent: 35.45pt;"><br /></span>
<br />
<h3>
<b style="text-indent: 35.45pt;"><span style="font-size: large;">Preserving legal concepts for future generations</span></b></h3>
</div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;">Criticism of the new code has been limited to the many innovations it introduces in family law and concerning the manipulation of human embryos. The Catholic Church succeeded in their opposition against some of these changes. But the population as a whole has shown no interest in these limited debates. It was the same lack of concern they showed when in 1994 the Federal Constitution was changed. Then the innovations went from new rules for elections to new governing bodies for the judiciary. Reverse discrimination was made <i>mandatory</i> by the Constitution itself. But why should people care? What does it have to do with soccer? </span><br />
<span style="font-size: large;"> During most of the 20th century, too many Argentines yawned while they were deprived of liberties that other peoples defended with their lives. In this new century, the changes that weaken the rule of law have received very little attention, even by academics. Or rather, law professors and politicians have celebrated the new code as the long delayed victory of their modern doctrines. But let's be clear: these are the same doctrines that were <i>modern</i> when first adopted in the 1930s, when Argentina's long decay started. It is no coincidence. </span><br />
<span style="font-size: large;"> Though at present it may seem unlikely, nobody can rule out that in one or two generations (or in ten) there would be again in this land a keen concern for the principles of freedom. At that time, Argentines will need precise concepts, non contradictory reasoning, and a knowledge of history. Law is a complex science in which errors are paid dearly. We cannot progress if we disregard what past generations have learned. People cannot invent locomotives without knowledge of the wheel. I hope I may have contributed to preserve a portion of that knowledge for the future.</span><br />
<span style="font-size: large;"><br /></span>
<span style="font-size: large;">(1) Ariel Emilio Barbero: <i>La Responsabilidad Civil. Volver a los límites del Código Civil. </i>Ed. La Ley 2001. The book dealt with a proposal which, on the issue commented in the post, was substantially similar to the one now made into a new Code. In turn, that proposal had been preceded by similar ones along the decades. </span><br />
<br /></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-59585301577933855572015-01-11T07:46:00.000-08:002015-07-09T08:10:09.118-07:00Argentina: ideas that erode the rule of law <div class="MsoNormal" style="text-indent: 35.45pt;">
<div style="margin-bottom: 0.06in; text-indent: 35.45pt;">
<div style="line-height: 150%; margin-bottom: 0.06in; text-indent: 0.38in;">
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<i><span style="font-size: large;">
Note: after the floods that affected La Plata –the city where I
live– in April 2013, I have added entries to this blog at a slower
pace. Moreover, I thought it very necessary to dedicate time to a
number of articles in my Spanish blog about the massive changes that
Cristina Kirchner's government is making on Argentine legislation.</span></i></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="line-height: 150%; text-indent: 0.46in;"><span style="font-size: large;">It has occurred to me that a reader of this blog might find it
surprising that so many of my articles are dedicated to political and
economic doctrines, and not to legal issues. Of course, there are a
good number of articles dedicated to the very notion of the rule of
law and to confront its distortions. But then, shouldn't I limit the
scope of my observations to law? Is this blog the proper place for
discussions about moral relativism, interventionist economics, or
about the true legacy of Adam Smith? How do such issues relate to the
subject of the blog?</span></span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
There are two reasons that have decided me to include articles that
might seem unrelated to the rule of law. One is accidental, and
perhaps superficial. The other is fundamental.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="line-height: 150%; text-indent: 0.46in;"><b><span style="font-size: large;">My job</span></b></span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
As to the first reason, I must say that as a law clerk working for
the Argentine judiciary, I should refrain from giving my opinion
about cases that may have to be decided by my superiors. Strictly
speaking, that restriction does not apply to the legal controversies
that have a bearing on the scope and effectiveness of the rule of
law. Even judges –to whom the duty of discretion is more severe
than for mere helpers like me– publish now and then their views
about past legal rulings –and their conclusions are not uniformly
favorable. Nevertheless, it is considered unwise for them to switch
too frequently between the roles of commentators and judges.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
Certainly, I'am not a judge, so I am bound by good sense and
moderation, but not by the stricter rules that apply to judges (which
sometimes they disregard). I am a lawyer working as a drafter for the
judges of the Buenos Aires Province Supreme Court (i.e. a state
court, not the federal Supreme Court). Unlike most high courts in
the world, those in Argentina have staffs of hundreds of lawyers in
charge of drafting their rulings. This is because in each weekly
seating, an Argentine Supreme Court (state or federal) may typically
decide more than 100 cases, that is many more than those decided by
the US federal Supreme Court in a year. In turn, this is a result of
the fact that, unlike most courts in the world, Argentine high courts interpret the constitutional and legal limits to their
reviewing powers as binding only for normal cases, and not for those
they consider exceptional where the error the judges want to correct
is –in their opinion– too evident, arbitrary and not simply
mistaken. This means that the federal Supreme Court itself decides
when it is bound by the constitutional clauses that limit its
reviewing powers to matters concerning federal laws and when it may
leave those restrictions aside.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
In fact, the powers of high courts have become discretionary; they
lack even any self-imposed ruling principle, as was freely admitted
by Genaro Carrio, a former President of the federal Supreme Court in
a book he dedicated to its extended, self-created, new jurisdiction.
Certainly, such new powers mean more work, and Argentine high courts have ended up with huge teams of drafters, coordinators of
such teams, and two or more levels of reviewers of drafts before they
are sent to the weekly meetings. The sheer number of sentences issued
by the same court and the possibilities of contradictions among them
has led the federal Supreme Court to include a Coherence Office
("Sección Coherencia") within its large structure.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
So, until I retire, I can deal only in general terms with issues that
may be put to the decision of Argentine courts. That is the first
reason why I have broadened the scope of my blog.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<b style="line-height: 150%; text-indent: 0.46in;"><span style="font-size: large;">A deeper reason</span></b></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
But there is a second reason, one that goes deeper into the issue and
has nothing to do with my professional situation. It is my conviction
that attacks against the rule of law are seldom if ever motivated by
legal technicalities, theoretical doctrines about the nature of
interpretation, or about the scientific status of jurisprudence.
There are always at play political and economic agendas that cannot
be pursued without trampling on the rule of law. Unless one tackles
that cause it is of little use to complain about the consequences.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
That is why in defending the the rule of law, I don't simply confront
the legal theories that distort its meaning or belittle its value –as
I did in my four articles about Joseph Raz. I don't simply challenge
the arguments of those who teach that ownership is a myth –as I did
in my seven articles about Nagel and Murphy's book. I must also deal
with the political and economic theories that move these writers to
erode the value, extent, or meaning of the rule of law.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
That is why, for instance, I decided to write an article about Nobel
Prize winner Amartya Sen's claim that Adam Smith actually favored
state intervention in the economy, education provided at not cost,
and "income creation" by governments. That is why in one of
my articles about Orwell, I wrote that the general ideas prevailing
in a country are much more important as a basis for the rule of law
than the declarations contained in constitutions. After all, though
the Argentine federal Constitution bans so-called "forced <i>loans</i>"
to the government (a wise clause that is the product of a long
history of abuses) it didn't prevent the two parties that have
governed Argentina for many decades from imposing "forced <i>savings</i>"
–savings that of course have to be paid to the government and are
returned later at their nominal value in a highly depreciated
currency. The federal Supreme Court has always rejected the
challenges raised against these laws.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
That these measures have been accepted by the population without much
complaint cannot be properly understood unless we take into account
that, for instance, schools have been teaching Argentine youngsters
for more than half a century that civil and economic liberties
are unrelated, and that restrictions to the latter do not undermine
the former. This is one of the lessons that I remember from my book
of elementary civic education. It already looked odd to me at that
time.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
Certainly, the original text of the Argentine Constitution comes from
a time when economic freedom was understood as a requisite for
progress and indeed for liberty in general. But many decades later,
in 2002, the clause in the Argentine Constitution that states that
property is inviolable (art. 17: "La propiedad es
inviolable...") didn't stop the government from taking the
foreign currency saved by people in their bank accounts. The federal
government even took the dollars that belonged to one of the
provinces that compose Argentina, San Luis –other provinces had
followed the advice of keeping their money safely abroad. This is as
if the federal US government took Texas's money! When the federal
Supreme Court ruled that such takings were unconstitutional, Congress
accused the judges of having been subservient to a <b>previous</b>
government, removed some of them and appointed new ones...who in due
time ruled that everything was according to the Constitution.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
I would leave to the reader the not very complex task of passing
judgment on those proceedings. But I must mention the fact that in
Argentina, few people saw anything noticeable in such changes; even
law scholars found no reason to raise an eyebrow. A renowned
professor, the late Augusto Morello, a teacher of many generations of
lawyers and judges, wrote in praise of <i>both</i> court decisions –i.e.
for and against the claims of people concerning their dollars–
because regardless of the outcome, what mattered in his view was that
in both cases the federal Supreme Court "delineated the torso of
reality" (Morello: The Supreme Court in the Political System, p.
101).</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
What is surprising in these an similar examples isn't merely the
nature of the government's measures, but the lack of reaction. In
particular, the deafening silence of most academics is revealing of
the general ideas about law, morals, and the limits of state action
that prevail in Argentina. Express support like that of Professor
Morello is not characteristic. Rather, it is the uncomfortable
acquiescence; at most, the ironic comment followed by the assertion
that all that is inevitable.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
That is why I think that those of us who write about the notion of
the rule of law must not restrict their comments to those instances
where pernicious doctrines have led governments to trample on it, but
must deal with those doctrines themselves. This is what Hayek did in
<i>The Road to Serfdom</i>.</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;">
Moreover, in Argentina, and I suspect in the rest of South America,
these doctrines frequently come ready-made from abroad. Professor
Roberto Gargarella who teaches Constitutional Law at Buenos Aires
University, is a promoter of the Analytic-Marxist creed of the
British philosopher G. A. Cohen, and made postgraduate studies in the
United States under Cass Sunstein. Argentina's most influential
criminal law academic, professor Eugenio Zaffaroni –recently
retired from the federal Supreme Court– is a follower of Michael
Foucault, whose work he has made the dominant inspiration for
scholars and policy advisers in that field. Zaffaroni was a member of
the Convention of 1994 which –among many other things–
incorporated positive discrimination into the federal Constitution.
From their professorships in Britain, Gramscian theorists Ernesto
Laclau and Chantal Mouffe provided ideological inspiration and
support to the present government in Argentina. Ronald Dworkin's
opinions has been cited by our highest courts in support for some of
their most decisive rulings, and a book seller tells me that Spanish
translations of his books sell very well among students, lawyers, and
judges. On the other hand you wouldn't find a translation of any book
written by Hayek (I have never seen a translation for sale; I just
checked on the biggest online bookstore in Buenos Aires: no results).</span></div>
<div style="line-height: 150%; margin-bottom: 0.2in; text-indent: 0.46in;">
<span style="font-size: large;"> So again, if one must go to the source, one cannot stop at the
local echoes and consequences of ideas. One must deal with the ideas
themselves. </span></div>
</div>
</div>
</div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-19881362151630122452013-09-18T10:06:00.001-07:002014-04-23T07:56:16.819-07:00Amartya Sen rewrites the legacy of Adam Smith<div class="MsoNormal" style="text-indent: 35.45pt;">
<br /></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Nobel Prize winner Amartya Sen distrusts free
markets, wants more regulations, and calls for a global redistribution of
wealth. In doing that, Sen claims that he follows Adam Smith’s lessons, which
others have misunderstood. But has everyone been wrong about Adam Smith?<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">So that you can judge for yourself, below I
have embedded two videos showing lectures by Professor Sen, those in which he deals with Adam
Smith’s legacy. </span><br />
<span lang="EN-GB" style="font-size: large;"> In 2011, together with 19 other Nobel Prize winners (three of
them also economists), Sen signed the <a href="http://globalsymposium2011.org/news-and-media/memorandum" target="_blank">Stockholm memorandum</a> in which they announced that recurring economic
crisis won’t be prevented by minor reforms and that governments will have to “<i>reset economic incentives so that innovation
is driven by wider societal interests</i>”. In his articles and lectures Professor
Sen has used the sub-prime crisis of 2008 as an example of the severe
limitations of a capitalism that is not strictly controlled by regulations
issued by governments. Moreover, Amartya Sen writes that world leaders should pursue
a more egalitarian distribution of the benefits of economic development around
the globe. In short, Professor Sen subscribes the whole agenda of
interventionism, regulation, and redistribution on a global scale.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">But Sen has also tried to show that his agenda
was actually supported, or at least hinted, by Adam Smith, the economist that
most people place among the earlier and most revered defenders of free markets.
Sen has severely criticized the traditional interpretation of Adam Smith’s legacy.
He sneers at those who assume that Smith’s essential message was that free
markets, not restrictions, are the best path to the wealth of nations. Sen
makes his audiences laugh at those simpletons who never go further than the
famous lines in which Smith declared that it is not from the kindness from the
butcher that we get our meat.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Professor Sen uses the authority of Adam Smith
to chastise the defenders of deregulation and blames them, together with “prodigals
and projectors”, for the sub-prime mortgage crisis. In his view, that came from
“an implicit faith in the wisdom of the market” an idea which must not be
attributed to Smith –Sen tells us–, but to those who misunderstand and misuse
him. He tells us that Adam Smith was actually a promoter of public spending; for
instance in education –which Sen classifies as a public good as a matter of
course. From there Sen deduces that nothing in Adam Smith's thought denies that "<i>state action must </i></span><span style="text-indent: 35.45pt;"><span style="font-size: large;"><i>supplement the operations of the market by creating </i></span></span><span style="font-size: large; text-indent: 35.45pt;"><i>jobs and incomes (e.g., through work programs)</i>"</span><span style="font-size: large; text-indent: 35.45pt;">. Sen declares that Adam
Smith has </span><span style="font-size: large; text-indent: 35.45pt;">for a long time </span><span style="font-size: large; text-indent: 35.45pt;">been misused and misrepresented as an unequivocal
defender of free markets. He wants to put an end to it (</span><i style="font-size: x-large; text-indent: 35.45pt;">Capitalism beyond the Crisis</i><span style="font-size: large; text-indent: 35.45pt;">, New York Times Review of Books, 3/26/2009 p. 4)</span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">I disagree. I think that, at best, Sen points
out some caveats that have never been denied by his much reviled
“traditional” interpretation of Adam Smith’s work. At worst, Sen distorts his
legacy, and not in its details, but in its fundamentals.<o:p></o:p></span><br />
<span lang="EN-GB" style="font-size: large;"><br /></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<div class="separator" style="clear: both; text-align: center;">
<span style="font-size: large;"><iframe allowfullscreen='allowfullscreen' webkitallowfullscreen='webkitallowfullscreen' mozallowfullscreen='mozallowfullscreen' width='320' height='266' src='https://www.youtube.com/embed/TUPAIdK126s?feature=player_embedded' frameborder='0'></iframe></span></div>
<span style="font-family: Times, Times New Roman, serif; font-size: large;"> There is a lengthy introduction, Professor Sen's lecture starts at 6.28</span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify; text-indent: 35.45pt;">
<b><span lang="EN-GB" style="font-size: large;">Misuses of <i>The Theory of Moral
Sentiments</i><o:p></o:p></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">One of the main strategies that Amartya Sen
uses in rewriting Adam Smith is to interpret <i>The Wealth of Nations</i> in the light provided by another –earlier–
book by Smith: <i>The Theory of Moral
Sentiments</i>.<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Amartya%20Sen%20reinterprets%20Adam%20Smith.doc#_edn1" name="_ednref1" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span lang="EN-GB">[1]</span></span><!--[endif]--></span></a><o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Now, it should be plain, right from the very
titles of the books, that they deal with different subjects. In fact Adam Smith
wrote about many and very different issues: from economy to literature and
jurisprudence, including a bit of the history of astronomy. Passing lightly
over the differences of such issues, Sen surprises his academic audiences with
citations from <i>The Theory of Moral
Sentiments</i> that prove that Smith assigned a great weight to the sentiment
of benevolence towards other human beings. Doesn’t it prove then, by words from
the master himself, that the usual interpretation of <i>The Wealth of Nations</i> is wrong? –and to think that simpletons keep
talking about self-interest and the invisible hand! Sen points out that –in
analysing sentiments– Smith wrote that people are usually very concerned about
the trust and good opinion that others may develop about them. Smith devotes a
whole chapter to the sentiment of approbation. Surely, reading Smith’s earlier
book we should have understood that trust in the economy and banks must be
fostered by regulation!<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Again using <i>The
Theory of Moral Sentiments </i>in order to shed light on <i>The Wealth of Nations</i>, Professor Sen finds support for his idea
that governments should pay attention, not merely to the point of view and
interests of their citizens, but also to the opinions of people living in
distant countries. Leaders should hear distant voices in order to enrich their
perspective. Along the same line, Sen has often criticised John Rawls for restricting
the relevant opinions to the citizens of each country. Sen finds that too
limited. After all, we may ask, why should only Americans have a saying about
the proper regulation of the American economy? Why not a Congolese or a
Venezuelan? Why should Swedish legislators consider only the perspectives of
the Swedish people? <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">According to Sen, all these lessons come from Adam Smith if one
looks in the proper places. Certainly, in the <i>Theory of Moral Sentiments</i>, Smith made occasional use of the
imaginary device of the impartial spectator. In evaluating our own actions and
moral commitments one can consider what an impartial spectator would think of
them. But we shouldn’t exaggerate the importance of the device: the spectator
doesn’t really exist –no more than the Rawlsian assembly of people behind the
veil of ignorance. Moreover, while an imaginary device has a central role in
Rawls system, it has only a minor place in Smith’s –which is to the great
advantage of the latter.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Nevertheless, Smith’s mention of the impartial
spectator is used by Amartya Sen to claim that such revered thinker has hinted
some support for his own suggestion about “distant voices”. Would Smith have
approved the suggestion that the British government should take into account
the opinions of spectators from outside its dominions? I doubt it, unless it was
on the issue of foreign policy.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">But Professor Sen thinks that governments
should consult distant voices even when deciding domestic matters. Moreover, Sen
writes that Smith’s occasional use of the impartial spectator in <i>The Theory of the Moral Sentiments</i> sheds
light into another contemporary issue, namely: should judges take into account
the views prevailing in other countries when deciding a case? Should American
judges weigh the opinions of French or German courts about the death penalty
when deciding a case involving the murder of an American by an American in <st1:country-region w:st="on"><st1:place w:st="on">America</st1:place></st1:country-region>? Why
not? If one follows Sen’s train of deductions, one will conclude that Adam
Smith gave support to that too.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">It baffles me to hear Sen delivering such
lessons to academic audiences and to see that nobody points out to him that it
is one thing to enrich one’s perspective, and another one to judge a fellow
citizen according to the law of the land. There is a difference between judges
and philosopher-kings. Nevertheless, in his book <i>The Idea of Justice</i>, Sen criticizes the US Supreme Court for
refusing to take into account the opinions of judges and people living in
different countries and different cultures. Why are they so close-minded? Sen
writes that common Americans don’t share that limited view because they pay
attention to the ideas of foreigners like Jesus, Gandhi, and Mandela. And Sen
argues: “<i>It is quite a specialized thesis
to assert that while it was OK for Jefferson to be influenced by the arguments
of foreigners, the ears should now be closed to arguments presented outside the
<st1:place w:st="on"><st1:country-region w:st="on">United States</st1:country-region></st1:place></i>”.<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Amartya%20Sen%20reinterprets%20Adam%20Smith.doc#_edn2" name="_ednref2" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span lang="EN-GB">[2]</span></span><!--[endif]--></span></a>
<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Maybe Smith’s notion of the division of labor –or
rather of power– could have helped Professor Sen to understand that puzzling
distinction. Some people write laws, some others apply them. Leaving aside Professor
Ronald Dworkin’s theories, most Americans agree with their judges that these are
different tasks. Moreover, the question is misleadingly stated in terms of
nationality. That isn’t the point; if a German professor writes a persuasive
article about the meaning of the US Constitution, his arguments might be
considered as such. Conversely, if an American born academic comes up with some
good idea that he believes the Court should impose to the rest of the nation, he
won’t be considered.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">I wouldn’t think it necessary to assert such
plain truths if it weren’t for the fact that I see that they are so easily forgotten.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;"><br /></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b><span lang="EN-GB" style="font-size: large;">Smith’s lesson
restated: distrust the wisdom of the market<o:p></o:p></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">In almost every writer it is possible to find,
along with the main ideas, peculiar opinions on special subjects, exceptions to
the principles, and caveats to his recommendations. That is especially so with
an author like Smith, for two reasons. First, he wrote about absolutely
disparate issues: morals, fashion, jurisprudence, literature, economy, astronomy,
and a host of other issues. Secondly, Smith opened the way in some of these
areas. He was among the first to tread on uncultivated land. It must be
expected that some of his notions are not yet fully developed and that some of
the old prejudices still remain in his body of work. For instance, Smith’s
theory of value was defective, and such fundamental issue would remain in that
state for a century. Certainly, none of that should be used to reject the great
lessons taught by Smith. There is no mechanism to separate the wheat from the
chaff other than balanced judgement, but I am afraid that Sen fails in that
respect.<o:p></o:p></span><br />
<span lang="EN-GB" style="font-size: large;"><br /></span>
<br />
<div class="separator" style="clear: both; text-align: center;">
<span style="font-size: large;"><iframe allowfullscreen='allowfullscreen' webkitallowfullscreen='webkitallowfullscreen' mozallowfullscreen='mozallowfullscreen' width='320' height='266' src='https://www.youtube.com/embed/y97L0mjSbMc?feature=player_embedded' frameborder='0'></iframe></span></div>
<span style="font-size: large;"><span lang="EN-GB" style="font-family: Helvetica Neue, Arial, Helvetica, sans-serif;"> </span><span lang="EN-GB" style="font-family: Times, Times New Roman, serif;">An introduction, then a lecture by Sen's wife Emma Rothschild. Sen starts at 37.30</span></span><br />
<span lang="EN-GB" style="font-size: large;"><br /></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">The traditional understanding of Smith’s
contribution –the understanding that Sen tries to debunk- is that he gave a
very good answer, one that others later perfected and refined, to the question
that he posed in the very title of his book, which was an inquiry into the
nature and causes of the wealth of nations. Smith’s answer was that wealth
doesn’t come from restrictions of trade or from laws that promote the
accumulation of gold within the territory of the nation. Those were the usual
answers in Smith’s time. Those were the policies of <st1:country-region w:st="on">Spain</st1:country-region>,
of <st1:country-region w:st="on">France</st1:country-region>, and even of <st1:country-region w:st="on"><st1:place w:st="on">Britain</st1:place></st1:country-region> to a
large extent. In contrast, Smith pointed out in the direction of the division
of labor, of markets, and of exchange –all of which required freedom. Of course
governments were there enforcing contracts, punishing criminals, providing
defense, and many other things besides. But, again, that is not the point. With
the exception of a few modern anacho-capitalists, almost nobody denies that
governments are necessary, in Smith’s time or in our time. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Besides, interventionists and promoters of
redistribution aren’t criticising a future stateless world. They are trying to
change this one, were there is a State, and not a small one. A market without
laws, courts and the rest is a straw man that interventionists like very much
to imagine and attack. But in doing so they evade the real question, which
isn’t today –and never was– whether governments are needed at all, but whether
governments should erect custom barriers, prevent people from opening shops and
starting enterprises, tell banks what rate they should charge to customers for whom
politicians feel sympathy, direct or misdirect investment, and a thousand other
brilliant ideas for the use of other people’s money.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Adam Smith gave a good answer to that question
–to the real question. And his answer was that restrictions of trade,
regulations, and intervention caused poverty, not wealth. Which is precisely
the answer that Amartya Sen rejects. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Professor Sen could enlist Smith as a supporter
of his ideas only by making deductions in leaps that would astonish Olympic champions
in long jump. From Adam Smith’s use of an impartial spectator (which by the
way, Smith placed in each man’s heart, not in distant lands) Sen deduces that
the US Supreme Court should ponder about the opinions of foreign citizens and
academics in deciding a legal case. From the fact that governments “were there”
performing some limited functions in Smith’s time, Sen extracts support for
intervention, regulation, and redistribution at a global scale. That is the
proper use of Adam Smith’s legacy in his view.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">All the while, Sen laughs at those who know
nothing about Smith other than the words about the interest of the butcher. But
that is not the only lesson that he must dismiss. There are many others. For
instance, simpletons like F.A. Hayek have also found great insight in Smith’s
words: <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">“<i>The
stateman, who should attempt to direct private people in what manner they ought
to employ their capitals, would not only load himself with a most unnecessary
attention, but assume an authority which could safely be trusted, not only to
no single person, but to no council or senate whatever, and which would nowhere
be so dangerous as in the hands of a man who had folly and presumption enough
to fancy himself fit to exercise it</i>”. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">And there is much more in the same line. For
instance:<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;"><i><span lang="EN-GB">“It is the highest
impertinence and presumption, therefore, in kings and ministers, to pretend to
watch over the oeconomy of private people, and to restrain their expence either
by sumptuary laws, or by prohibiting the importation of foreign luxuries. They
are themselves always, and without any exception, the greatest spendthrifts in
the society. Let them look well after their own expence, and they may safely
trust private people with theirs. If their own extravagance does not ruin the
state, that of their subjects never will</span></i><span lang="EN-GB">.”<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">But then, apart from referring to a book that
Smith wrote about a different subject, what has Sen found to support his idea that
people have misunderstood Smith’s legacy? Sen cites again and again three
examples he has managed to find in the whole <i>Wealth of Nations</i>. Nevertheless, I think that it is easy to see
that two of them –when read in full context– don’t support Sen’s interpretation.
The third one does: it actually shows Smith supporting intervention. But this third
example is also an instance of a rare fault of judgement on Smith’s part, a
kind of intervention that no modern economist would approve –perhaps not even
Sen, which is a lot to say. It is impossible to reject the main body of the
book on these three isolated examples.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;"><br /></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b><span lang="EN-GB" style="font-size: large;">Did Adam Smith support
free education?<o:p></o:p></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">In his speeches and articles Sen stresses the
point that Smith actually supported education at the public’s expense. But
let’s follow Sen’s own advice and look at the context. In <i>The Wealth of Nations</i>, Smith says that division of labor, so
beneficial in general, doesn’t come without some drawbacks. People forget to
take responsibility for the defense of their own country. So people should
learn how to use weapons as every man does in less developed societies. And
there are deficiencies in basic education as well. Although the higher ranks
can take care of it by themselves, it is different with poor people. Let’s see
Smith’s whole argument so that we cannot be blamed of neglecting context:<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">“<i>It is
otherwise with the common people. They have little time to spare for education.
Their parents can scarce afford to maintain them even in infancy. As soon as
they are able to work, they must apply to some trade by which they can earn
their subsistence. That trade too is generally so simple and uniform as to give
little exercise to the understanding; while, at the same time, their labour is
both so constant and so severe, that it leaves them little leisure and less
inclination to apply to, or even to think of any thing else</i>.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;"><i><span lang="EN-GB">But though the common
people cannot, in any civilized society, be so well instructed as people of
some rank and fortune, the most essential parts of education, however, to read,
write, and account, can be acquired at so early a period of life, that the
greater part even of those who are to be bred to the lowest occupations, have
time to acquire them before they can be employed in those occupations. For a very
small</span></i><span lang="EN-GB"> <i>expence the publick can facilitate, can
encourage, and can even impose upon almost the whole body of the people, the
necessity of acquiring those most essential parts of education. The publick can
facilitate this acquisition by establishing in every parish or district a
little school, where children may be taught for a reward so moderate, that even
a common labourer may afford it; the master being partly, but not wholly paid
by the publick; because if he was wholly, or even principally paid by it, he
would soon learn to neglect his business.</i>” p. 175 <a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Amartya%20Sen%20reinterprets%20Adam%20Smith.doc#_edn3" name="_ednref3" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span lang="EN-GB">[3]</span></span><!--[endif]--></span></a><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">That is, in full, the passage that Sen uses in
order to claim that Smith supported education at the public expense. Certainly
Smith never meant that the public should pay for the education of all,
including the rich. He wouldn't recommend the system that has been in use in <st1:place w:st="on"><st1:country-region w:st="on">Argentina</st1:country-region></st1:place>
for decades, where rich youngsters spend many years in public universities
maintained by the whole nation. Nevertheless, sometimes Sen likes to quietly drop
the limitation and speaks of education in general as a public service.<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Amartya%20Sen%20reinterprets%20Adam%20Smith.doc#_edn4" name="_ednref4" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span lang="EN-GB">[4]</span></span><!--[endif]--></span></a><o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">In contrast, Smith meant basic education for
the poor people who, in his time, had to send their children to work at a very
early age. In our time the situation has changed greatly. But what is much more
significant, even for those in such appalling conditions, Smith recommended
that the costs should not be “<i>wholly, or
even principally paid</i>” by the public. His reason is that if people have to
pay for education, they will be more careful about its quality. Now, to extract
from that the lesson that Adam Smith supported free education as a public
service, to further build upon that example an argument for State intervention,
and think it fair to scoff at the unenlightened people who miss the context in
Smith’s work, is well beyond what I am prepared to accept, even from a renowned
academic like Amartya Sen.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Let’s see a second example. In his article in <i><a href="http://www.newstatesman.com/ideas/2010/04/smith-market-essay-sentiments" target="_blank">The New Statesman</a></i>, Sen writes that Smith <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">“<i>was
deeply concerned about the inequality and poverty that might remain in an
otherwise successful market economy. Even in dealing with regulations that
restrain the markets. Smith additionally acknowledged the importance of interventions
on behalf of the poor and the underdogs of society. At one stage, he gives a
formula of disarming simplicity: "When the regulation, therefore, is in
favour of the workmen, it is always just and equitable; but it is sometimes
otherwise when in favour of the masters</i>."<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Such formula would delight more than one union
leader. Was Smith really recommending intervention based on that formula? Let’s
see the full context. Smith writes:<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;"><i>“Particular acts of
parliament, however, still attempt sometimes to regulate wages in particular
trades and in particular places. Thus the 8th of George III. prohibits under
heavy penalties all master </i><st1:city style="font-style: italic;" w:st="on">taylors</st1:city><i> in </i><st1:city style="font-style: italic;" w:st="on"><st1:place w:st="on">London</st1:place></st1:city><i>, and five miles
round it, from giving, and their workmen from accepting, more than two
shillings and seven–pence halfpenny a day, except in the case of a general
mourning. Whenever the legislature attempts to regulate the differences between
masters and their workmen, its counsellors are always the masters. When the
regulation, therefore, is in favour of the workmen, it is always just and
equitable; but it is sometimes otherwise when in favour of the masters. Thus
the law which obliges the masters in several different trades to pay their
workmen in money and not in goods, is quite just and equitable. It imposes no
real hardship upon the masters. It only obliges them to pay that value in money,
which they pretended to pay, but did not always really pay, in goods” </i>(p. 163)<i><o:p></o:p></i></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">What Smith says is that, as masters were in his
time the advisers of legislators, they managed to get laws imposing maximum
salaries. But today we don’t have maximum salaries, we have minimum salaries. Today,
employers are seldom if ever the advisers of legislators in such matters. So if
we speak of Adam Smith’s legacy, we have to realize that his real message is
that intervention works unfairly in favour of those who can influence
legislators. It is hardly a recommendation for intervention in favour of some
group or other.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;"><br /></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b><span lang="EN-GB" style="font-size: large;">A real example<o:p></o:p></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Professor Sen provides a third example, this
time a real one. In <i>The Wealth of Nations</i>
Smith deals with the interest paid for loans. Certainly Smith doesn’t build a
system for intervention in this area. There is no general discussion of the
principles that would justify intervention in the money market. But writing
about the legal ceiling for rates that was almost universal in his time (in
places were interest was allowed at all), Smith recommends fixing the ceiling “<i>but a very little above the lowest market rate</i>”.
His motive? He says that if the ceiling fixed by law –above which interest was
illegal and in some countries even a crime– is rather low, very little above
the lowest paid in the market, then creditors won’t be tempted to risk their
money in dubious enterprises in order to get a higher interest. A low ceiling
would have the effect of directing credit to “<i>sober people</i>”, in Smith’s words. If a higher rate is permitted,
then credit would be directed to –again in Smith’s words– “<i>prodigals and proyectors”</i>.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Amartya Sen triumphally cites this passage of <i>The Wealth of Nations</i> as a proof that
Smith’s legacy has been misunderstood, that he recommended regulation. Sen even
draws lessons for our own time, and blames the sub-prime mortage crisis on
“proyectors”. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">So Sen has shown, though with a single example
fished out from the whole book– that the lesson of <i>The Wealth of Nations</i> is that we must distrust the wisdom of free
markets, and that Adam Smith actually supported government’s intervention in
the economy. Thesis demonstrated: Adam Smith’s legacy has been misunderstood.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Has it? What the example of the low ceiling for
interest rates shows is that Smith wasn’t free of human error. Nevertheless, <i>The Wealth of Nations</i> is full of
examples in which Smith shows that governments’ intervention in the economy is
both unfair and damaging. That applies to many areas: in page after page Smith
shows how intervention fails, in foreign trade, monetary policy, salaries, the
price of goods, and everything else. That, with the exception of this example which
occupies less than a page, and in which Smith made a clear mistake. So the
legacy of the great economist, the lesson that we have to learn from his work,
must be built around this error of judgement which nobody –with the possible
exception of Sen– would approve today?<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">To fix by law a ceiling for all interest rates
is already objectionable; but to fix it very close to the lowest market rate is
madness. Smith made this single mistake when treading in new territory, but we
cannot be mistaken about it today. We cannot present it as an example of
Smith’s wisdom and –worse– pretend to base our understanding of his legacy on
it.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Let’s compare: Johannes Kepler legacy doesn’t
rest on his attempt to find some geometrical relation in the distances between
planets. Kepler was another genius exploring new territory. But we know that his
conviction about geometrical relations was wrong. Moreover, the comparison is
unfair to Smith, because Kepler’s error has a much more important role in his
work than the recommendation about low rates has in Smith’s.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;"><br /></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b><span lang="EN-GB" style="font-size: large;">Should Bentham’s
letter to Smith be laugh at?<o:p></o:p></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Professor Sen finds it amusing that Jeremy
Bentham tried to convince Smith that he was wrong in recommending a very low ceiling
for rates. Figure that! Bentham, a philosopher with a modest knowledge of
economy –says Sen– trying to teach economics to Smith, who was perhaps the
greatest economist of all ages. How ridiculous.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">In <a href="http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=277&chapter=35606&layout=html&Itemid=27" target="_blank">his letter </a>Bentham defended the “proyectors”
who Smith had snubbed. Bentham said that a low maximum rate won’t distinguish
between good and bad among the new projects. He added that all well established
enterprises have been at the beginning uncertain endeavours. Bentham even cited
Smith’s arguments in order to convince him; for instance, he said that Smith’s
had rightly asserted that people often exaggerate the importance of bankruptcies:
<i>After all our complaints of the frequency
of bankruptcies, the unhappy men who fall into this misfortune make but a very
small part of the whole number engaged in trade, and all other sorts of
business; not much more perhaps than one in a thousand.</i> And Bentham argued
further that even if it were true that all untried projects and new machines must
fail, they would have opened the path to others who will succeed. He concluded
saying that if all new and uncertain projects had ever been abandoned in favour
of the well known ways, men would still be shivering in caves.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">Can Bentham’s arguments be dismissed simply by
scoffing at the attempts of an amateur?<o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span style="font-size: large;"><br /></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b><span lang="EN-GB" style="font-size: large;">Rewriting the past<o:p></o:p></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">In the classic film <i>La belle de Moscou</i> an American man says to a Russian apparatchik: <i>we don’t change the past, only the future </i>(I
am citing from memory, I love that line)<i>.
</i><o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB" style="font-size: large;">But why is that some try to debunk the usual
understanding about one of the earliest defenders of free markets? Why does it
matter today whether Adam Smith really supported public financed education,
whether he provided a simple policy maxim in favour of labor and against
employers, or whether his legacy can be better assessed by recalling his advice
about a very low ceiling for interest? <o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Friedrich Hayek explained why. He wrote in <i>The Road to Serfdom</i> that the doctrines
of intervention and redistribution can be made more palatable if we get
convinced that they are simply our own traditional ideas about liberty and
progress, only that we have failed to grasp them correctly. </span><o:p></o:p></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
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<div class="MsoNormal">
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<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Amartya%20Sen%20reinterprets%20Adam%20Smith.doc#_ednref1" name="_edn1" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[1]</span></span><!--[endif]--></span></a><span lang="EN-GB"> <a href="http://www.newstatesman.com/ideas/2010/04/smith-market-essay-sentiments" target="_blank">The Economic Manifesto</a>, article by Amartya Sen
in <i>New Statesman</i>. Sen writes: “<i>since the ideas presented in The Wealth of Nations have been
interpreted largely without reference to the framework already developed in Moral Sentiments (on which Smith
draws substantially in the later book), the typical understanding of The Wealth of Nations has been
constrained, to the detriment of economics as a subject</i>.” Constrained? Yes,
and rightly so. Constrained to what is relevant to the issue of economics.<o:p></o:p></span></div>
</div>
<div id="edn2">
<div class="MsoEndnoteText">
<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Amartya%20Sen%20reinterprets%20Adam%20Smith.doc#_ednref2" name="_edn2" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[2]</span></span><!--[endif]--></span></a> <span lang="EN-GB">Amartya Sen: The idea of Justice. Belknap Harvard 2009,
p. 406.<o:p></o:p></span></div>
</div>
<div id="edn3">
<div class="MsoEndnoteText">
<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Amartya%20Sen%20reinterprets%20Adam%20Smith.doc#_ednref3" name="_edn3" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[3]</span></span><!--[endif]--></span></a> <span lang="EN-GB">The Wealth of Nations. <a href="http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=200&Itemid=99999999" target="_blank">Link to book</a> vol. II. The complete
works of Adam Smith can be read or downloaded for free from the same site. I
cite the pages according to the pagination in the pdf document.<o:p></o:p></span></div>
</div>
</div>
<span lang="EN-GB" style="font-size: 12pt;"><a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Amartya%20Sen%20reinterprets%20Adam%20Smith.doc#_ednref4" name="_edn4" title=""><span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[4]</span></span></span></a><span lang="EN-GB"> <a href="http://www.nybooks.com/articles/archives/2009/mar/26/capitalism-beyond-the-crisis/?pagination=false" target="_blank">Amartya Sen: Capitalism beyond the crisis. New York Review ofBooks</a>, March 26 2009.</span> </span>Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-87602565635675195522013-09-07T07:09:00.004-07:002021-07-17T05:11:45.555-07:00Are Rawls and Hayek compatible?<div class="MsoNormal" style="text-indent: 35.45pt;">
<br /></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">No way. That would be the answer to such
question at first glance –and as you will see, that will be my final answer
too. Nevertheless, Jinzhou Ye, a kind reader of my blog, has written to me and rightly pointed
out that Hayek seems to have thought that his ideas weren’t so radically
different from Rawls’s.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">In the preface to the second volume of <i>Law, Legislation and <st1:place w:st="on"><st1:city w:st="on">Liberty</st1:city></st1:place></i> Hayek wrote that his differences
with Rawls<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;"> “<i>seemed more verbal than substantial. Though
the first impression of readers may be different, Rawls’s statement which I
quote later in this volume (p. 100) seems to me to show that we agree on what
is to me the essential point. Indeed, as I indicate in a note to that passage,
it appears to me that Rawls has been widely misunderstood on this central issue</i>”<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Then in p. 100 Hayek writes that the problem of justice is relevant not only as the basis of the
rules that judges apply but also for the “<i>deliberate
design of political institutions, the problem to which Professor John Rawls has
recently devoted an important book. The fact which I regret and regard as
confusing is merely that in this connection he employs the term ‘social
justice’. But I have no basic quarrel with an author who, before he proceeds to
that problem, acknowledges that the task of selecting specific systems or
distributions of desired things as just must be ‘ abandoned as mistaken in
principle, and it is, in any case, not capable of a definite answer. Rather,
the principles of justice define the crucial constraints which institutions and
joint activities must satisfy if persons engaging in them are to have no
complaints against them. If these constraints are satisfied, the resulting
distribution, whatever it is, may be accepted as just (or at least not unjust)’.
This is more or less what I have been trying to argue in this chapter.”<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_edn1" name="_ednref1" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><b><span lang="EN-GB">[1]</span></b></span><!--[endif]--></span></a></i><o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Though I admire him greatly, I think that here
Hayek deluded himself. He wanted to hear a faint echo of his own ideas in
Rawls’ book, and he overlooked the crucial differences.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<br /></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b><span lang="EN-GB"><span style="font-size: large;">An apparent agreement<o:p></o:p></span></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Hayek wrote that the notion of social justice was a
mirage, and a dangerous one. A few paragraphs before that quoted above, he
wrote that it tends to destroy genuine moral feelings. It comes “<i>into constant conflict with some of the
basic principles on which any community of free men must rest</i>”. Hayek
defended the classic system in which rules have no other purpose than to allow
each one to follow his own road without colliding with others. Such rules are
–Hayek said</span></span><span style="font-size: large; text-indent: 35.45pt;">–</span><span style="font-size: large; text-indent: 35.45pt;"> like road signs that tell people how to reach their own
destination but without commanding any collective destiny. I have described that system in more detail in <a href="http://www.rule-of-law-not-of-men.blogspot.com.ar/2011/11/joseph-raz-against-friedrich-hayek-on.html" target="_blank">a previous article</a>.</span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Of course, laws that comply with that
requirement don’t establish who owns what. Distribution comes from the play of
the market, that is, from the judicious, injudicious, lucky, or unlucky
decisions of millions of people. The price mechanism makes it possible for them
to collaborate without a general agreement about collective purposes. The men
who make bolts do not have to agree –or have any idea</span></span><span style="font-size: large; text-indent: 35.45pt;">–</span><span style="font-size: large; text-indent: 35.45pt;"> about the usefulness of
the simple door, or of the complex machine in which bolts might be used. They
agree with the maker of the door and the machine about the price. Nothing more
is needed, and to require agreements about further and general goals is not
only inefficient, but immoral. A system requiring more agreement than is
possible, moral, and efficient can only attempt to work under the command of a
bigger, more powerful, and ultimately uncontrollable government.</span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Rawls’s system might look similar at first
glance. So it is when one reads the paragraph quoted by Hayek. Rawls too relies
on general principles and says that whatever distribution of goods that results
from a system that complies with those principles must be considered just. The
difference, the enormous difference, is that Rawls’s system includes
equalization by redistribution as a fundamental “principle”. In other words,
Rawls made a <i>goal</i> into a <i>principle. </i>After that, one might think
that his system relies only on general rules, not on collective goals. Wrong:
what happens is that a collective goal about the distribution of goods has been
adopted as if it were a rule like any other. But it is one of Hayek’s
fundamental insights that rules and goals are different. And if one uses the
name of “rule” for collective goals, that difference does not disappear. It is
blurred only.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<br /></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b><span lang="EN-GB"><span style="font-size: large;">Oceans of discretion<o:p></o:p></span></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">One must remember that Rawls does not include
property among the fundamental rights protected by the first principle of his
community. Property is regulated by the <i>difference
principle</i> which states that differences in wealth are allowed only if they
improve the situation of the least fortunate members of the community (least
favoured by nature, luck, or anything else). For instance, medical researchers
might <i>be allowed</i> (mind the passive voice) to buy and own
expensive equipment, and perhaps <i>be
permitted</i> to retain a considerable part of the profits that comes from
their discoveries, <i>if it is considered</i>
that such level of inequality works for the benefit of the least fortunate. The
passive voice should alert us that some government official or authority is
implied. The passive voice allows one to overlook the agent that performs the
action, therefore its frequent use in bad political philosophy.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">The difference principle is made both more
stringent and more uncertain by two further requirements. First, the
improvement of the least fortunate must be the maximum possible. That means
that it is not enough to say of an inequality of distribution that it improves
the situation of the least fortunate in some degree, if another distribution
would make it even better.<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_edn2" name="_ednref2" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span lang="EN-GB">[2]</span></span><!--[endif]--></span></a>
Secondly, Rawls tells us that what must be improved are the “expectations” of the
least fortunate, which some personal traits may make different from actual
improvement of their wealth or situation. Government must care about classes or
categories, not about individuals.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Now the two systems –Hayek’s and Rawls’s</span></span><span style="font-size: large; text-indent: 35.45pt;">–</span><span style="font-size: large; text-indent: 35.45pt;"> look
absolutely different –as indeed they really are. We must also be aware that
Rawls’s system requires momentous decisions “on the merits”, a kind of decision
that proper rules (in Hayek’s sense) must not put in the hands of governments.
For instance, on what basis do authorities select the least favoured group? There
are none, as Rawls openly admits “</span><i style="font-size: large; text-indent: 35.45pt;">it
seems impossible to avoid a certain arbitrariness in actually identifying the
least favoured group</i><span style="font-size: large; text-indent: 35.45pt;">”</span><a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_edn3" name="_ednref3" style="font-size: large; text-indent: 35.45pt;" title=""><span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span lang="EN-GB">[3]</span></span></span></a><span style="font-size: large; text-indent: 35.45pt;">.
As to the reasons that would justify the taxes that will be used to nip off the
inequalities that are not justified (in the view of the rulers) Rawls tells us
with commendable frankness that “</span><i style="font-size: large; text-indent: 35.45pt;">naturally,
where this limit lies is a mater of political judgement guided by theory, good
sense, and plain hunch, at least within a wide range</i><span style="font-size: large; text-indent: 35.45pt;">”.</span><a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_edn4" name="_ednref4" style="font-size: large; text-indent: 35.45pt;" title=""><span class="MsoEndnoteReference"><span class="MsoEndnoteReference"><span lang="EN-GB">[4]</span></span></span></a><span style="font-size: large; text-indent: 35.45pt;">
As another tool for equalization Rawls mentions “redefinition of property
rights”.</span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<br /></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b><span lang="EN-GB"><span style="font-size: large;">Same conclusions
reached from different paths?<o:p></o:p></span></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Rawls said that his system was compatible both
with socialism and with free markets –free markets with a considerable degree of
intervention. In contrast, one would say that Hayek’s ideas aren’t compatible
with socialism, and that they run against strong intervention. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Moreover, while Rawls rejected that property
were to be considered a fundamental right, one would say that Hayek adhered to
Edmund Burke’s definition: we all have equal rights, but not to the same
things. And among such rights Burke (and Hayek) surely included property.
Rights can be equal only if they are unrelated to the condition of the person
or the amount of wealth. Rawls’s system pursues a redistribution of property:
that is why property cannot be a fundamental right in it.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">All that said about the differences, there is
an element in Rawls’s system that makes its implications very vague (even more
vague than they already are without it). And because of the haziness that this
element adds, because of the fog that it suspends on the oceans of vagueness already
opened by Rawls, one might say that his system could well provide a
justification for capitalism. The trouble is that it could well justify almost anything
else. Let’s see how Rawls introduces this new element.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Rawls tells us that there must be justice
between generations too. Some amount of saving, for instance, is necessary for
the well being of people not yet born. This new element must also be balanced
(again mind the passive voice). Rawls uses it to show that perhaps considerable
differences of wealth might be admitted as fair.<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_edn5" name="_ednref5" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span lang="EN-GB">[5]</span></span><!--[endif]--></span></a>
For, while they might not seem justified according to Rawlsian principles when
applied to people living today, it might be argued that such inequalities are
necessary for the well being of people in some future generation.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Rawls says that his difference principle cannot
be applied between generations because economic benefits go only in one
direction, that is, to the future.<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_edn6" name="_ednref6" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span lang="EN-GB">[6]</span></span><!--[endif]--></span></a>
Just for the record I would say that debts for loans taken today are often
passed to future generations, and that will affect distribution in the future.
But, leaving that aside, now Rawls has a new element that may justify the wide
differences of wealth that are to be found in any place where the means of
production are possessed by individuals or private companies. In this way, one
could say that Rawls’s notion of justice may be presented as a justification for
capitalism and free markets.<o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Nevertheless, it would be difficult to find a
shakier basis. With its exclusion of property as a fundamental right, with
equalization as a goal-principle, with its need of a myriad of momentous
collective decisions for which it recommends a good “hunch”, it is the worst
defence of freedom one may devise. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang="EN-GB"><span style="font-size: large;">Hayek described and defended clear principles
that build a stronghold for liberty. It is solid because it is rooted in
history. In <i>The Road to Serfdom</i> he
dealt with, among others, the British and German experiences. Rawls built a
castle in the air with no reference to history. Anyone who plans to use that
castle for the defence of liberty must be aware that it offers all its gates
open for an easy access of attackers. Its basis could be used for as well as
against freedom and personal independence. The question about the needs of
future generations as against those of the present one will be argued, the
selection of the least fortunate group and the proper transfer of wealth will give
rise to many different hunches. The redefinition of property rights will provide
room for ingenious but controversial schemes. But don’t you worry, in the end,
some authority will settle everything down. <o:p></o:p></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<br /></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<br /></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<br /></div>
<br />
<div>
<!--[if !supportEndnotes]--><br clear="all" />
<hr align="left" size="1" width="33%" />
<!--[endif]-->
<br />
<div id="edn1">
<div class="MsoEndnoteText">
<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_ednref1" name="_edn1" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[1]</span></span><!--[endif]--></span></a><span lang="EN-GB"> Law, legislation and liberty, The University
of Chicago Press.<o:p></o:p></span></div>
</div>
<div id="edn2">
<div class="MsoEndnoteText">
<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_ednref2" name="_edn2" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[2]</span></span><!--[endif]--></span></a><span lang="EN-GB"> “In other words, however much a scheme
improves the expectations of the less fortunate relative to full equality, it
cannot be just if a more egalitarian scheme could sustainably do better for the
less fortunate” Philippe van Parijs: <i>Difference
Principles</i>, in <i>The Cambridge
Companion to Rawls</i>. <st1:place w:st="on"><st1:placename w:st="on">Cambridge</st1:placename>
<st1:placetype w:st="on">University</st1:placetype></st1:place> Press 2002.<o:p></o:p></span></div>
</div>
<div id="edn3">
<div class="MsoEndnoteText">
<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_ednref3" name="_edn3" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[3]</span></span><!--[endif]--></span></a> <i><span lang="EN-GB">A Theory of
Justice</span></i><span lang="EN-GB">. <st1:place w:st="on"><st1:placename w:st="on">Belknap</st1:placename>
<st1:placename w:st="on">Harvard</st1:placename> <st1:placetype w:st="on">University</st1:placetype></st1:place>
Press, Revised Edition p. 84<o:p></o:p></span></div>
</div>
<div id="edn4">
<div class="MsoEndnoteText">
<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_ednref4" name="_edn4" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[4]</span></span><!--[endif]--></span></a> <i><span lang="EN-GB">A Theory of
Justice</span></i><span lang="EN-GB"> p. 246.<o:p></o:p></span></div>
</div>
<div id="edn5">
<div class="MsoEndnoteText">
<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_ednref5" name="_edn5" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[5]</span></span><!--[endif]--></span></a> <i><span lang="EN-GB">A Theory of
Justice</span></i><span lang="EN-GB"> p. 252.<o:p></o:p></span></div>
</div>
<div id="edn6">
<div class="MsoEndnoteText">
<a href="file:///C:/Documents%20and%20Settings/user/Mis%20documentos/notes/Are%20Rawls%20and%20Hayek%20compatible.doc#_ednref6" name="_edn6" title=""><span class="MsoEndnoteReference"><!--[if !supportFootnotes]--><span class="MsoEndnoteReference"><span style="font-size: 10pt;">[6]</span></span><!--[endif]--></span></a> <i><span lang="EN-GB">A Theory of
Justice</span></i><span lang="EN-GB"> p. 254.<o:p></o:p></span></div>
</div>
</div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com3tag:blogger.com,1999:blog-4041459783788618525.post-13991731873085424562012-12-30T08:18:00.001-08:002020-08-09T05:17:32.983-07:00John Rawls: blind bias as impartiality<br />
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Before John Rawls (1921-2002), Socialists and Marxists had justified redistribution saying that workers were the ones who had produced the goods unfairly distributed by the capitalist system. In short: it was fair to plunder the rich because the rich had first robbed the workers. Expropriate the expropri<span style="font-size: large;">a</span>tors<span style="font-size: large;"> !!!</span> they shouted. In spite of all the complexities of surplus value and exploitation theories, they rested on the very convincing idea of redress.</span></span><br />
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"> That traditional basis had collapsed intellectually long before it ceased to dominate half of the World. Somewhat
late, and with a readership composed mostly by academics and scholars, John
Rawls provided a new rationalization for a redistribution of goods.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">The most that
Marxists could do about the thorough refutation that thinkers like
Böhm-Bawerk (<a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&ved=0CEAQFjAB&url=http%3A%2F%2Fmises.org%2Fbooks%2Fkarlmarx.pdf&ei=VGbgUL_DD5GE9QTsnICIDA&usg=AFQjCNEpjHWpaEk_c4rJ1SXX1fnvkV8fBA&sig2=vpMqEomwnY4TO6qZy1ZfBA&bvm=bv.1355534169,d.eWU" target="_blank">link </a>to his book on the mistakes of the theory of the surplus value) made of the Marxian system was to avoid mentioning it. But if Marx was wrong and if it wasn't true that value comes from labor alone, then plundering the rich wasn't so clearly fair. The seizure of all productive goods was no longer redress of previous injustice.</span></span><span face="" style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;">.</span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">By the ‘30s, though some academics still called themselves
“Marxists” they no longer used Marx’s economic concepts. They contented
themselves and their public with a repetition of some words and gestures. But a new basis was urgently needed.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">What justification
did Rawls offer in substitution of the Marxian apparatus? In a word, nothing:
no justification at all. As to <i>goals</i>,
his theory of justice proposed an ideal of egalitarian redistribution
where even skill and intelligence were rejected as justifications for a higher
income. That first rule was tempered only by a second rule or proviso by which differences would be allowed only if they worked for the benefit of the
unskilled and the dumb – whom Rawls called “the less favored by the lottery of
nature”. But, how did Rawls argument succeed where Marx failed? </span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b style="text-indent: 35.45pt;"><span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><br /></span></span></b>
<b style="text-indent: 35.45pt;"><span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Rawls's strategy</span></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Rawls provided
no moral, economic, or historical reasoning –and that was the cleverest part of
his theory. Instead, Rawls asserted that
every person would agree to his egalitarian proposals if every person were
impartial and had no convictions about what is right and what is wrong.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">His
justification is similar to what anyone says to an adult who has signed a
contract. You don’t need to argue that the deal is good for him. You just point
out that without being forced or misled in any way, he signed the contract.
Well, Rawls’s justification is pretty much the same. He skips all other
considerations, and defeats everyone saying that they <i>would have signed</i> a contract for the making of an egalitarian
society. We must bear in mind that, as any contract, Rawls’s agreement would be
enforceable –that is, the State would use its force on those recalcitrant. The
justification for that use of force comes from the contract: you signed it. Or
rather, you <i>would have signed it.</i> So
Rawls has to convince you about that and has no need to bother himself with all
the issues that have for ages occupied the minds of statesmen, moralists, and
philosophers.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Rawls imagined
rational people with no moral conviction and no knowledge about their
individual characteristics. He prescribed that they should know the laws of
physics, economics, psychology, etc. but all knowledge about what makes them
individuals has to be excluded. Rawls called it “the original position” and he
assumed that it would make people <i>impartial</i>
about this agreement. Impartiality is a key requisite in the Rawlsian system,
indeed, the only requisite. </span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Therefore, a
fair scheme of rules is not defined by any reference o argument about its
content; it is fair because impartial people would agree to it.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;">Rawls asserted that the agreement would establish “a purely procedural” notion of justice -one that has no independent criterion for justice, except that it is the result of a procedure. This assertion is disputable, but it should be the subject of another article.</span><br />
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;"> However, we may ask: What about the original position itself? People situated in that imaginary position would agree to a a system of rules where justice is purely procedural. But is the device of the original position in turn purely procedural? I think it isn't. The original position is designed so as to produce a definite contract -a contract that Rawls thinks would establish a just society. </span><br />
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;"> Rawls himself acknowledges that he designs the conditions of the original position and the veil of ignorance so as to achieve of a definite outcome, a certain contract he sees as fair (A Theory of Justice, p. 122). </span><br />
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;"> As a smaller example of the design of a procedure that must yield a preconceived result, Rawls mentions a procedure for dividing the
portions of a cake. Assuming that it is fair to divide it in equal portions,
“the obvious solution –says Rawls- is to have the man who divides the cake take
the last piece. He will divide it equally, since in this way he assures for
himself as large a share as he can”</span><a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftn1" name="_ftnref1" style="font-family: georgia, "times new roman", serif; font-size: x-large; text-indent: 35.45pt;" title=""><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span lang="">[1]</span></span></span></a><span face="" style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;">. This is “procedural” but not <i>purely </i>procedural (the looked-for outcome defines the procedure, and not the other way). It excludes any question
about justice and takes as indisputable from the beginning that everyone
deserves equal pieces (e.g. who made the cake? does not count). Certainly that initial assumption and goal for the system may be wrong. I think that is the case with Rawl's original position.</span><br />
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><b><br /></b></span></span>
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><b>A new name for bias: impartiality</b></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">But we may
leave that objection for a future article in order to come to grips with another
very odd characteristic of the path to justice that Rawls has designed. People in the
“original position” should not ponder about the justice of leaving products in
the hands of those who produce them, or about the merits of skill or
perseverance. All that is excluded. Otherwise these considerations could
lead people to dangerous thoughts about desert and merit and maybe to refuse
the Rawlsian contract. After all, even people who ignore their personal qualities may decide that the products of skill belong to the skillful, the results of perseverance to the perseverant, whoever they might be. </span></span><br />
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"> That is why Rawls must introduce a second condition: people should have no convictions about right and wrong. Each man in the original position should only
try to maximize his share of all the goods (like the man dividing the cake).
Rawls says that his way of reasoning about justice (or of avoiding reasoning) has
the advantage that it is simpler and therefore may command wider assent.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Rawls
postulates that in deciding what belongs to whom, people in the “original
position” should not apply any conception of justice.<a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftn2" name="_ftnref2" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang="">[2]</span></span><!--[endif]--></span></a>
Everyone should try to get the largest portion he can get, and if no one is
forced to give up his share to others, then the only possible arrangement is
that everyone receives an equal part of income and wealth. Nobody can argue
higher merit because that is excluded by the “veil of ignorance” (meant to
guarantee impartiality). And given the conditions postulated by Rawls, the
outcome is evident: he has excluded individual merit, convictions about what is
right and wrong, and left only a desire to get the largest piece one can get
for oneself.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">We must realize
that Rawls adopts a very objectionable notion of impartiality. His impartial
man should adopt general rules (enforceable on everyone) considering his own advantage
and nothing else. In evaluating the portions that would be allocated to skilled
and unskilled people he must have in mind that he might come to be one of the
most able as well as one of the most incompetent of men. Only that calculation
matters, with no consideration to desert. Understood in this way, impartiality
requires absolute personal bias. Impartial people are those who seek their own
advantage by means of rules and force –not by means of skill and intelligence.
Rawls notion of impartiality would fit well in the Ingsoc’s Newspeak. </span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">I have found
that an expounder of the Rawlsian system writes that we shouldn’t think that
people in the original position “are purely self-interested, like rational
egoists”.<a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftn3" name="_ftnref3" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang="">[3]</span></span><!--[endif]--></span></a>
Professor Freeman claims that “they are not egoists any more than chess players
who play to win or buyers who shop for the lowest price are egoists. Just as
chess players and ordinary consumers usually have all sort of moral convictions
and motives a well, so parties in the original position are assumed to have
them too. Indeed, their moral interests and benevolent concerns are among the
interests they aim to protect in their choice among principles of justice.”<span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang=""><a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftn4" name="_ftnref4" title="">[4]</a> (<a href="http://assets.cambridge.org/052165/1670/sample/0521651670WS.pdf" target="_blank">link to his article</a>)</span></span><a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftn4" name="_ftnref4" title=""><!--[endif]--></a></span></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Certainly, this
is such a complete misrepresentation of Rawls’s requirements for the “original
position” that professor Freeman must add that “But for the purposes of this
particular decision –namely, deciding on principles of justice for the basic
structure of society– the parties do not act from their benevolent affections
and moral sentiments. They ‘take no interest in one another’s interest’ as
contracting agents but are concerned only with promoting their own interests”.<a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftn5" name="_ftnref5" title=""><span class="MsoFootnoteReference"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang="">[5]</span></span><!--[endif]--></span></a></span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Professor
Freeman’s assertion that signatories to Rawls’s agreement have moral
convictions, except that they are suspended for the purposes of judging the agreement
reminds me of a personal anecdote. It was a very hot summer in <st1:city w:st="on"><st1:personname productid="La Plata" w:st="on">La Plata</st1:personname></st1:city> (<st1:country-region w:st="on"><st1:place w:st="on">Argentina</st1:place></st1:country-region>)
where I live. I was walking at noon in the city’s center; the rather short
buildings provided no shade at all. Then I glimpsed a Restaurant with a
billboard saying “Air conditioned inside”. I entered and ordered some meal.
Then I realized that the restaurant was as hot as the street. When the waiter
returned with the meal I asked about the “air conditioned” advertised outside. Unmoved,
he answered that they had air conditioned indeed, except that it was turned off
and they had no intention of turning it on.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Professor Freeman’s explanation would seem perfectly natural in <st1:place w:st="on"><st1:country-region w:st="on">Argentina</st1:country-region></st1:place>, but perhaps attitudes
and standards are different in other nations. Certainly, people in the original
position have all sorts of moral convictions and benevolent sentiments. But
they turn them off for the purpose of judging the general arrangement of their
society.</span></span><br />
<span face="" style="font-family: georgia, "times new roman", serif;"><span style="font-size: large;"> </span></span><span face="" style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;"> Rawls himself tries a similar argument in a later book, </span><i style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;">Political Liberalism</i><i style="font-family: georgia, "times new roman", serif; font-size: x-large; text-indent: 35.45pt;"> </i><span face="" style="font-family: georgia, "times new roman", serif; font-size: large; text-indent: 35.45pt;">p. 310. He says that people would have all sorts of convictions, but the contract will be signed in the original position by representatives (not by themselves) and he postulates that these representatives must not know what moral convictions the people they represent have (only that they have moral convictions of an unknown nature).</span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Let’s see: why
is Rawls so sure that rational people would unanimously mandate that higher
skills don’t justify higher earnings? Because each one of them knows that there
is the risk that they might be among the unskilled or the stupid –and they have
no moral standard, only the wish to take the most they can get. In the original
position they still defend their own interest, they aren’t really impartial.
Rawls lets them know only the chances and the risk. If they are rational but
have no moral convictions whatsoever, each will try to get the largest part
they can get from the others. They will settle for an equal division. Rawlsian
justice has been made.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Blind bias is
no impartiality. Suppose a judge must decide a case concerning the ownership of
some property. In the non-Rawlsian world, the fact that one of the parties is a
friend, an enemy, a gorgeous girl, or a repulsive man must have no weight in
his mind. It would be wrong for him to make it a factor; it would be immoral,
partial, and illegal (indeed, he might have to leave the case if there is a
risk of bias). </span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">However, we
might adopt the Rawlsian inversion of the notion of impartiality: we might
postulate that in order to be impartial and fair, the judge should consider <i>only his bias</i>. He must have in mind only
that there is a chance that his friend, or his enemy, or the gorgeous girl, or
the repulsive man, is one of the parties in the case. Well then, if the chances
are even, he will decide the case according to justice, isn’t it? No, no, he
shouldn’t bother about titles and proof. That would make him partial towards
truth and justice. No, no, we must eliminate also his moral convictions and any
standard of what is right and wrong. To be impartial, the judge must consider
his own propensities and aversions <i>and
nothing else</i>. He will divide the property in two. That is the new name for
impartiality.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">I would say
that old Karl Marx’s attempt was much better than this. At least he tried hard
with arguments about plus value, interest, variable capital, and exploitation.
He was wrong of course, but he didn’t start by assuming that his egalitarian
proposals were right –as Rawls did. Why should it be seen as fair that I try to
establish rules that will force others to improve my own living conditions,
just in case I happen to be unskilled or dumb? Rawls confuses two things </span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">1) that in
adopting general rules I shouldn’t try to improve my own situation (or that of
friends, relatives, etc.) over that of other people</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">2) that I may
try to get rules that work to my advantage, but I must calculate without
knowing my own situation, only the chances.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Only the first
is right. Rawls actually argues for the second as if it were the embodiment of
impartiality, but whatever looks convincing in his reasoning comes from the
appearance that he is arguing for the first.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Rawls’s sole
formula for justice is impartiality, and his sole formula for impartiality is
blind bias. After that, the egalitarian outcome is guaranteed.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b style="text-indent: 35.45pt;"><span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><br /></span></span></b>
<b style="text-indent: 35.45pt;"><span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">A new justification for coercion</span></span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">I have no
objection against those who seek their own advantage. What I find objectionable
is that they would use force for that purpose.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Let’s see: Why
shouldn’t I try to get advantages for myself when adopting <i>rules</i>? Because they imply coercion; rules are meant to be enforced.
The exploits of robber barons and the gain from predatory incursions have not
been celebrated by the bards for quite a long time. We think that gain may come
from free agreements among the parties concerned, but it is not to be mandated
in any way. We may have special provisions for children, the elderly, and the
sick, but they are exceptions, not the basic arrangement of society.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Then Rawls
comes and says: what if we had an agreement about forced advantages for
some people at the expense of others? If everyone agrees to it, even those to
be exploited, we can remove the objection against advantages taken by force. But how would
it be possible? Rawls answers: make people blind about what makes them
individuals, and make them blind about moral convictions. That is the only way
in which they may sign to a contract that would justify the use of violence for
personal gain. Rawls chose to call it “the original position”. </span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">You will be
forced to work for the advantage of other people simply because you <i>would</i> have agreed to it. In the actual
world, you don’t sign because you know yourself and what your work has
produced, but that is what makes you partial. You would be impartial if you
sought gain for yourself without knowing or caring about whether there was any
justification for it.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<b style="text-indent: 35.45pt;"><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><br /></span></b>
<b style="text-indent: 35.45pt;"><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Philosopher’s
blind spot</span></b></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">That inversion brings to mind Orwell’s Newspeak. Besides, the name “original position” seems to
me very misleading because there was never such an origin. </span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">But we must
return to the justifications for coercion, and realize that this has been the
blind spot of XXth century political and moral philosophers. That was a
complete reversal in the direction of Western thought. Since at least the XVII
century, the main concern of political and moral philosophers was the limit of
power. How power could be controlled, how its excesses avoided, how its bad
tendencies could be spotted before they become dangerous to liberty? Locke,
Montesquieu, Burke, Constant, Humboldt and many others that followed their path
dedicated their efforts to the task of taming power.</span></span></div>
<div class="MsoNormal" style="text-indent: 35.45pt;">
<span lang=""><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">The XXth
century seems to have felt that the dangers counted for nothing when compared
with the good things that might come from the use of the State’s power. Marx
was ahead of his time in that respect –he never seemed to be worried about the
dangers of a dictatorship of the proletariat. What if the dictators decide to
send millions to labor camps? Well, that was excluded by the theory, wasn’t it?
Rawls too wasn’t much interested about the limits of power and the connection between economic liberty and all other liberties. Against all historical
evidence, against the examples of his own time, he joined -or led- the large number of thinkers blind to the dangers of a State
that would dictate who owns what. </span></span></div>
<div>
<!--[if !supportFootnotes]--><span face="" style="font-family: georgia, "times new roman", serif; font-size: large;">Note: I have modified the first paragraphs of this article after it was posted, without change in the meaning.
</span><br />
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<!--[endif]-->
<br />
<div id="ftn1">
<div class="MsoFootnoteText">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftnref1" name="_ftn1" title=""><span class="MsoFootnoteReference"><span lang=""><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang="">[1]</span></span><!--[endif]--></span></span></a><span lang=""> Distributive justice. Included in Collected Papers, 2001 p. 148).</span></span></div>
</div>
<div id="ftn2">
<div class="MsoFootnoteText">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftnref2" name="_ftn2" title=""><span class="MsoFootnoteReference"><span lang=""><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang="">[2]</span></span><!--[endif]--></span></span></a><span lang=""> A theory of justice p. 125.</span></span></div>
</div>
<div id="ftn3">
<div class="MsoFootnoteText">
<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftnref3" name="_ftn3" title=""><span class="MsoFootnoteReference"><span lang=""><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang="">[3]</span></span><!--[endif]--></span></span></a><span lang=""> Samuel Freeman: Introduction, p. <st1:metricconverter productid="13. In" w:st="on">13. In</st1:metricconverter> Samuel Freeman and
others. The <st1:city w:st="on"><st1:place w:st="on">Cambridge</st1:place></st1:city>
Companion to Rawls, 2003</span></span></div>
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<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftnref4" name="_ftn4" title=""><span class="MsoFootnoteReference"><span lang=""><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang="">[4]</span></span><!--[endif]--></span></span></a><span lang=""> </span>Op. cit. p. 14.<o:p></o:p></span></div>
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<span face="" style="font-family: georgia, "times new roman", serif; font-size: large;"><a href="file:///C:/Documents%20and%20Settings/User/Mis%20documentos/__notes/blog/John%20Rawls%20and%20blind%20partiality.doc#_ftnref5" name="_ftn5" title=""><span class="MsoFootnoteReference"><span lang=""><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span lang="">[5]</span></span><!--[endif]--></span></span></a><span lang=""> </span>Op. cit. loc. cit.</span><o:p></o:p></div>
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Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-48053410338168347552012-11-13T15:38:00.000-08:002013-09-03T16:37:07.993-07:00Distributive justice is primitive justice<br />
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<b><span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Distributive
justice according to Aristotle</span></span></b></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">It is agreed that it was Aristotle who introduced the notion of
distributive justice. In his Nicomachean Ethics, and at the side of the <i>general</i> notion of justice, he mentioned <i>special</i> kinds of justice, which he
called corrective justice and distributive justice.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">The idea of corrective justice does not seem to have inspired much
interest, as it is only the reversal of injustice done in the past. Therefore,
it is entirely dependent on the more general or plain notion of justice. It can
hardly be justified as a special concept, as it cannot “correct” anything that
wasn’t unjust according to the general notion of justice, and it cannot (must
not) provide reasons or criteria for acting in a way that is different from
that recommended by plain justice.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">In contrast, the other <i>special</i>
justice mentioned by Aristotle seems to have aroused much interest –even
passion. It is distributive justice.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">What is it according to Aristotle? In a few words, it is the kind of
justice that pertains to the distribution of things shared in common among a
number of people. Aristotle introduces the concept of distributive justice in
chapter 2 of book V of his Nicomachean Ethics. He writes (I cite the well known
translation by W. D. Ross): “<i>one kind </i>[of
justice]<i> is that which is manifested in
distributions of honour or money or the other things that fall to be divided
among those who have a share in the constitution (for in these it is possible
for one man to have a share either unequal or equal to that of another)</i>”</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">In chapter 3 of the same book, Aristotle adds that there are
quarrels “<i>when either equals have and are
awarded unequal shares, or unequals equal shares. Further, this is plain from
the fact that awards should be 'according to merit'; for all men agree that
what is just in distribution must be according to merit in some sense, though
they do not all specify the same sort of merit, but democrats identify it with
the status of freeman, supporters of oligarchy with wealth (or with noble
birth), and supporters of aristocracy with excellence</i>.”</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Later, when in chapter 4 he introduces the other kind of special
justice –corrective justice– Aristotle points out that it is different from
distributive justice “<i>For the justice
which distributes common possessions is always in accordance with the kind of
proportion mentioned above (for in the case also in which the distribution is
made from the common funds of a partnership it will be according to the same
ratio which the funds put into the business by the partners bear to one
another); and the injustice opposed to this kind of justice is that which
violates the proportion. But the justice in transactions between man and man is
a sort of equality indeed, and the injustice a sort of inequality; not
according to that kind of proportion, however, but according to arithmetical
proportion. For it makes no difference whether a good man has defrauded a bad
man or a bad man a good one, nor whether it is a good or a bad man that has
committed adultery; the law looks only to the distinctive character of the
injury, and treats the parties as equal, if one is in the wrong and the other
is being wronged, and if one inflicted injury and the other has received it”.<o:p></o:p></i></span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">From all this, we can draw two conclusions. First, that the concept
of distributive justice presupposes that a number of people <b>have a share</b> in some goods. If they don’t have a share, the concept
does not apply to them. Distribution in that case would be another name for robbery.
Secondly, that distribution <b>may not be
equal</b>, it must be proportionate to the share one has in the common goods
–the “common goods of a partnership” as Aristotle calls them in the paragraph
just cited.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">So far, everything is very abstract and (perhaps for the same
reason) unobjectionable. Now, one can ask, how is that some people come to get
a common share in goods? We may think of partners that contribute funds to a
common enterprise. That seems unproblematic too. More difficult questions arise
when we consider Aristotle’s assertion that distribution should be made
according to merit and to the part each one has in the common goods (and
honors) according to the constitution. In modern societies, constitutions do
not assign goods to anyone. And it would look odd (to say the least) that <i>honors</i> were to be assigned to any man or
group of men by the constitution in proportion to ideas about their merit.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Of course, all that made more sense more than 2000 of years ago. Social
ranks were important and stable, wealth and honors were determined mostly by a
man’s position, by the fact that he belonged to a family of patricians, or of
slaves. Land was the main source of wealth. Its cultivation and the use of the
profits were largely determined by ancient customs and laws. </span></span></div>
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<b><span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Primitive
justice<o:p></o:p></span></span></b></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Hunting large animals involves a concerted effort, especially if one
has only primitive weapons. The distribution of meat, skins and the like must
have been regulated by very stable customs. Effort was probably taken into
account, but also position and prestige. In this way, primitive societies provided
opportunities for applying distributive justice that make no sense in the
modern world. Of course we have partnerships, but distribution in them is
regulated by contract. If you don’t think that the deal is fair you don’t sign.
There is no need to argue about justice in the distribution.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Primitive societies confronted yet another and very common situation
that demanded the application of the concept of distributive justice. It was another
kind of hunting: the hunting of human beings and the pillage of their
belongings. That was a source of profits very highly regarded in primitive
tribes, as well and in ancient civilizations.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">At the beginning of the <i>Iliad</i>
we have an example of a quarrel about distributive justice that conveys to us,
modern men, the atmosphere and the assumptions that must have underlined the
application of the concept by the ancients.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Agamemnon, the most powerful military leader of the Greeks who siege
<st1:place w:st="on"><st1:city w:st="on">Troy</st1:city></st1:place> is asked to
give up a girl he had received as part of the booty. He must do that in order to
placate the gods –the enslaved girl is the daughter of a priest. Agamemnon
acquiesces, but says that then he will take another girl from the ones given to
other chieftains. He takes Briseis, who had been given to Achilles. </span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Achilles protests that this amounts “<i>to rob me of the prize for which I have toiled, and which the sons
of the Achaeans have given me. Never when the Achaeans sack any rich city
of the Trojans do I receive so good a prize as you do, though it is my
hands that do the better part of the fighting</i>”. Here we see a dilemma:
should distributive justice be made according to the part which Achilles took
in the common effort, or according to the undisputed higher status of Agamemnon?</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Of course, today it shocks us to read that men would engage in a
dispute about the ownership of a slave and the shares that belong to those who
sacked a city, and that they would have the effrontery of talking of justice. However,
distribution of land and prisoners taken in war was a common practice in
antiquity. It was practiced in the West by Greeks, Romans, Vikings, <st1:city w:st="on"><st1:place w:st="on">Normans</st1:place></st1:city>, etc. It was very
well known in the East too and in <st1:country-region w:st="on"><st1:place w:st="on">America</st1:place></st1:country-region> before the arrival of
Europeans. Moreover, as a source of wealth the sword was generally much more
highly esteemed than the plow. Its profits fell in the realm of distributive
justice, and certainly not as a minor issue.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">The famous jurist Rudolf von Ihering tells us in his book <i>Prehistory of the Indo-Europeans</i> that conquest
was one of the main sources of the right to property among the nomadic peoples
that populated <st1:place w:st="on">Europe</st1:place> in ancient times. Perhaps
some of his conclusions might be disputed today, but the testimony of the Iliad
shows that Ihering’s conclusion wasn’t far off the mark.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Again, none of that applies to modern societies. Two thousand years
ago there was a major issue that provided an occasion for the application of
the notion of distributive justice –distribution of booty. It doesn’t exist
today. Modern wars are seldom profitable. But even if they were, few people
would think that it makes sense to use the concept of justice in a discussion
about the distribution of the spoils of war.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">The French historian Fustel de Coulagnes says in the introduction to
his book <i>The Ancient City</i> that we have
a natural but misguided tendency to think that the ancients meant for liberty
something similar to our own notion. He writes that in ancient <st1:country-region w:st="on">Greece</st1:country-region> and in primitive <st1:city w:st="on"><st1:place w:st="on">Rome</st1:place></st1:city>: “<i>The
human person counted for very little against that holy and almost divine
authority which was called country or the state. The state had not only, as we
have in our modern societies, a right to administer justice to the citizens; it
could strike when one was not guilty, and simply for its own interest</i>”. He
added that “<i>There was nothing independent
in man…His fortune was always at the disposal of the state. If the city had
need of money, it could order the women to deliver up their jewels, the
creditors to give up their claims and the owners of olive trees to turn over
gratuitously the oil which they had made</i>”. </span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">In the introduction to the book Fustel de Coulagnes says that the
infatuation of many thinkers with the collective liberties of the ancients has
created confusion and an obstacle to the progress of individual liberties among
modern men: “<i>Having imperfectly observed
the institutions of the ancient city, men have dreamed of reviving them among
us. They have deceived themselves about the liberty of the ancients, and on
this very account liberty among the moderns has been put in peril.</i>”</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">The French historian died in 1889. Had he lived to see Communists,
Fascists (“<i>everything within the state,
nothing outside the state, nothing against the state</i>”), Nazis, Peronists,
and the myriad of “modern” collectivistic parties, he would have said: I warned
you about that!</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">By the way, if for a moment we do not take into account the slave’s
wishes, which did not count at the time, we modern people tend to think that
Achilles case was better, that he was unfairly treated. But we must not forget that
Achilles himself recognizes that Agamemnon has a point. Achilles says: “<i>I shall fight neither you nor any man about
this girl, for those that take were those also that gave</i>”. In our own
modern times, many a receiver of government’s handouts must often see the truth
in Achilles words.</span></span></div>
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<b><span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">The
justice of the ancients compared with that of the moderns<o:p></o:p></span></span></b></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Modern people do not depend for their subsistence on any
distribution made of common property or of the spoils of war. Of course there
is the exception of welfare recipients; nevertheless we can say that contracts for
business or for work–and not distribution by some authority– is the
characteristically modern way of earning a living.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">In modern nations wealth does not come –as it did thousands of years
ago– mainly from the possession of land. And even land is no longer possessed
according to rank or military services paid to some chief. Land changes hands
as any other good: by mutual agreement (Hitler found that very objectionable in
<i>Mein Kampf</i>). Moreover, although commerce
and industry have always played a role, today they are the main sources of
wealth (Hitler regretted that too). Transactions are regulated by contracts so
there is no room for anyone to place himself in the role of a distributor of
the profits.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">I doubt whether we modern people have fully realized what these
changes mean for our notion of justice.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">I think that there is a parallel between the historic changes that
took place more than two centuries ago concerning the notions of liberty and of
justice. In his remarkable essay <i>The
liberty of the Ancients compared with that of the Moderns</i>, Benjamin
Constant said that many of his contemporaries had not realized that liberty
meant something different in ancient city states and in the XIXth century. For
the modern man <i>liberty</i> means the
right to follow his own way of life, to choose his own line of work, to use and
dispose of his property, to choose his religion (or choose none), to travel
within and outside the country, to speak his mind –to do all that without
having to depend on the opinion of any authority.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">The ancients knew a very different kind of liberty. Constant wrote:
the ancients carried out collectively but directly many of the functions of
government. They debated and made decisions about war and peace; common
citizens passed judgments, and imposed even capital punishment; they voted
laws. On the other hand, all of them were subject to the collective will. In <st1:country-region w:st="on"><st1:place w:st="on">Greece</st1:place></st1:country-region>, anyone
could be expelled from the community by ostracism. In <st1:city w:st="on"><st1:place w:st="on">Rome</st1:place></st1:city>, the censors had a right (and a duty) to
intrude in anyone’s personal life. Thus, the ancients combined collective
freedom with the complete subjection of the individual to the authority of the
group.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Constant traced these differences back to the conditions of life that
prevailed in ancient city-states and in modern nations. Here I must direct the
reader to his enlightening analysis. What I want to point out now is this: much
as liberty changed, so did justice. Nations that no longer live from the
products of a land possessed according to rank and tilled by slaves, men who
earn their own living without ever dreaming of the part they might receive as
property taken from enemies, must have a notion of justice that is different
from that which belonged to an age when these conditions prevailed.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Constant wrote that many of the misfortunes and horrors of the
French revolution came from a misguided attempt to force upon people the
liberty of the ancients, when in fact they wanted and needed the liberty of the
moderns. The French ideologues had been inspired by their reading of Greek and
Roman authors. They made vehement speeches about the collective will of the
citizens without <span style="font-size: large;">giving</span> a thought <span style="font-size: large;">to</span> the differences between ancient <st1:country-region w:st="on"><st1:place w:st="on">Greece</st1:place></st1:country-region> and modern
nations.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Aren’t we doing the same with the notion of justice? Aren’t we still
using notions of justice that no longer make sense? Aren’t we merely repeating
opinions received from the ancients but without confronting them with the
conditions of our own age? </span></span></div>
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<b><span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Let’s distribute your
property among us<o:p></o:p></span></span></b></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">We read all the time alarming statistics: the upper 10 per cent of
the country’s population gets a disproportionate share of the “national
product”. Worse still: we are told that a few developed nations in Europe
together with the United States, Canada, and Japan get a disproportionate share
of the world’s production of iron, energy, computers, mobile phones, everything!
Isn’t that unfair? In view of it, is it not plain that the government should
step in and distribute the product of the whole nation more fairly among its
inhabitants? Does it not apply also to the entire world’s population? Is it not
a scandal that a Swiss receives a bigger slice than a Somali?</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Certainly, all that would make sense if we were talking of the
distribution of things held in common according to ancient custom, or land
taken from an enemy we have defeated. But it is entirely wrong that we modern
people go on reasoning as if it were a natural thought that there is a common
pool of “wealth” out there that simply has to be seized and distributed. That
made some sense with land and slaves, but not with industry and commerce. By
the way, this difference also explains why modern revolutionaries so often see
that the wealth they have taken from their class enemies melts away in their
hands. You can conquer land; you cannot conquer a modern enterprise. Many
ideologues still don’t understand the difference.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">After the roman legions had conquered a city, the land around it still
produced crops. The gold and the slaves taken to <st1:city w:st="on"><st1:place w:st="on">Rome</st1:place></st1:city> as booty from war actually increased the
wealth of the Roman citizen. But modern revolutionaries have found time and
again that when they confiscate finance and commerce, they destroy it. Popular
tribunals can in a couple of hours send thousands of entrepreneurs to prison,
but then they will find that the thousands of companies they seize do not
increase the wealth of anyone (except perhaps a dozen commissars). They will
have nothing to distribute to the millions of followers who still wait eagerly
for the spoils. In the end, they will receive their fair share of poverty.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">When Margaret Thatcher remarked that “<i>the problem with Socialism is that eventually you ran out of other
people’s money</i>” she showed, not only her wit, but also that she understood
the consequences of the changes in the way modern people produce wealth
–something that has yet to penetrate the head of many an Oxford’s professor. </span></span></div>
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<br /></div>
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<b><span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Justifications for
distribution<o:p></o:p></span></span></b></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">I have said that too many ideologues and their followers eager for a
share of other people’s money have not considered sufficiently the differences
between ancient times and modern times. They pretend to be modern when in fact
they have yet to understand the modern world. And that is confirmed, not only
by the poverty they have brought about wherever they have been allowed to
govern, but by the contempt these ideologues have shown for history and
experience in formulating theories that justify distribution of other people’s
wealth.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">In all cases, the trick consists in presenting the wealth they want
to distribute as <b>an undifferentiated
common pool</b>. Marx tried it in the XIXth century with his elaborate theory of
the work-value –that was perhaps the best attempt ever made, although it had
been thoroughly refuted by Böhm-Bawerk before the XIXth century came to a close. </span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">John Rawls tried a different justification in the XXth century but he
mostly rested on ex cathedra assertions to convince his readers that skills and
ingenuity must be treated as a common pool unfairly distributed among human
beings. Skilled and clever people must be made to atone for that. </span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">In the XXIth century, Barak Obama justifies higher taxes by telling Americans
“you didn’t build that”. The infamous phrase is a good summary of the main
argument in the book <i>The Myth of
Ownership</i> by professors Murphy and Nagel. I have criticized that book in
<a href="http://rule-of-law-not-of-men.blogspot.com.ar/search/label/Murphy%20and%20Nagel" target="_blank">seven articles</a>.</span></span></div>
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<span lang="EN-US"><span style="font-family: Georgia, Times New Roman, serif; font-size: large;">Though presented as philosophical advances over older ideas, these
theories still rest on primitive notions that are out of touch with the modern
world. None of those who promote a greater distribution by the coercive
apparatus of the government seem to have grasped the differences between the
justice of the ancient and the justice of the moderns</span></span></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-90290541149255238962012-08-18T16:53:00.014-07:002023-10-06T06:25:58.844-07:00Ludwig von Mises and moral relativism<div class="MsoNormal" style="margin-bottom: 6pt; text-indent: 35.4pt;">
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<span style="font-family: "georgia" , "times new roman" , serif; font-size: large; text-indent: 35.45pt;">About a century ago, most economists had already understood that the theory that explains the value of economic goods (the value of railways, oil, wood, or computer games) cannot be based on the amount of labor invested in making them.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">First of all, there is the objection that comes from the usual experience most of us have of having worked many hours on some useless piece of trash of no value at all. To avoid this objection the labor theory of value must be supported with some props that deviate it from its simple formulation. But there are more objections, and more props have to be added, until we realize that the theory does not help to explain anything, and only those who have invested many useless academic years in defending it would insist in adding more props, ad-hoc limitations, and caveats to salvage it. In many respects, their efforts can be compared to those of Ptolemy astronomers, who tried to shield their cherished theory from the criticism of Copernicus by adding more celestial spheres and epicycles to explain away the facts that contradicted it.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Karl Marx was the last of those Ptolemy economists. He still adhered to the old theory he had learned from classic English economists and never realized that, by the end of his life, younger generations of economists were making their own Copernican revolution. Theirs is called sometimes "the marginalist revolution", though that name points out to only one of their innovations.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">These newer generations of economists argued that the value of goods cannot be deduced from any of their physical characteristics, or from labor invested in them, but from the utility they provide to a particular man, in specific circumstances, at a determined time. That change of perspective, from the goods themselves to the individuals, allowed the new economists to see what was wrong in many questions that had puzzled people for centuries. For instance, they realized that it was misleading to ask why is it that gold is more valuable than water when it is clear that we can survive without gold, but not without water. They said: don’t argue in the abstract, don’t ponder about the goods in themselves; instead, consider individual circumstances in full context, without leaving out time, place, and resources, and you will see that for men with plenty of water at their disposal (as most of us are), another glass of water may have very little value. In those circumstances, gold may reasonably have more value than water. </span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Moreover, they said that we have to consider each man’s own valuation of that good, not our own. Not value as seen by an economist, a philanthropist, or a central planner, but by each man and woman that decides that some good is useful to them. Of course, we might see no value in many of the goods that crowds of people buy eagerly. But then it is nevertheless certain that such trash will sell for a good price. That is what counts for the economist. </span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">I won’t dwell more deeply on these new economic theories (that is, “new” more than a century ago), which form today the basics of economics. For those who want to learn more about them, I recommend the books of Carl Menger, Eugene Böhm-Bawerk, and Ludwig von Mises (in my view, Menger and Böhm-Bawerk are still today the clearest expositors of that conceptual revolution). What I want to point out is that these new views, by focusing on each man’s valuation –and not on a supposedly objective value determined by some expert- made them friends of free markets and led them to discover new objections to central planning. Indeed, the Austrian von Mises and the Norwegian Trigve pushed these ideas to their logical consequence, and showed that without the price system that results from individual’s free choices, central planners have no way of making economic calculations. They can play with statistics, with tons and kilowatts, but they cannot make calculations with them. You need a unit. You cannot multiply numbers of kilowatts by numbers of penicillin doses, and substract hours of packaging work. Only prices provide a way to do it. An entrepreneur takes into account the prices of raw materials, wages, etc. But planners <i>fix</i> all prices, so prices provide no data to them.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Another Austrian, Friederich von Hayek, explained that market prices work as signals that provide people with information about each other’s needs and valuations. When planners try to replace the market with their decrees, they cut out these channels of information. Of course, some entrepreneurs may be stupid and fail to pay attention to prices (at their peril). Some may fail to hear the signals prices convey. But without a market, planners have <i>no way</i> of getting such information, they have no signals. Certainly they can put prices to goods as they please, but then they will always hear their own echo.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In this way, the change a new generation of economists thought necessary in one of the most basic economic concepts –the concept of value-, led them to appreciate the importance of free markets. That put them at odds with the tendencies that prevailed among politicians and the public (and indeed, among most of their colleagues) during the last decades of the XIX and the beginning of the XX centuries. By that time, most people were being converted to the ideal of central planning.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">On the other hand, that same change in the concept of value seemed to place these economists closer to a tendency that was becoming popular among the intellectual elites. That was moral relativism, or perhaps we could say, moral irrationalism.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Against the wisdom of all previous ages, philosophers had started to argue that moral principles have no rational basis. They taught that all moral choices are ultimately irrational. Slowly permeating to the public at large, that new view led to horrible consequences. People started to get used to the notion that the essence of politics was struggle, and not rational debate. It was significant that new parties started to call their followers “militants”.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">I think that the first of those two intellectual links, the one with free markets, is correct and logical (the expression “free market” is, of course, a redundancy, like “free exchange of ideas”). But I think that the second link, the one with moral irrationalism, is wrong because it does not really derive from the new ideas about value introduced by economists. Unfortunately some among them, most notably Mises, seem to believe the contrary.</span></div>
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<b><span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Subjective economic value and a non sequitur <o:p></o:p></span></b></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">The expression “subjective value”, so much in use in economic theory, is very apt to lead to confusion. It would be better to call it “individual value”, or “personal value”. Certainly “subjective” value is opposed to “objective” value such as labor-value. But this is only because “labor” value is not linked to any <i>person’s</i> values, neither rational and sound nor irrational and stupid. It was a value deduced from hours of work. That was a mistake corrected by the conceptual revolution in economic thought that took place at the end of the XIX century. But from that –which was right- some have thought it necessary to derive another conclusion: that we cannot distinguish between sound and stupid preferences. That was wrong, a non sequitur, i.e. a conclusion that does not follow from the premises.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Of course, one might try other arguments in order to show that values are irrational, and that they cannot be defended and rejected by objective reasons. But then one should look for arguments elsewhere: modern economic theory provides no basis for it. </span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">It is easy to understand why even foolish economic decisions count for the science of economics; there is no need to justify that with moral relativism and to deny that indeed people often make very stupid economic decisions. Of course, the entrepreneur must take prices as they are. He may rightly deplore the fact that in some neighborhoods men buy more gin than tea, but he cannot ignore it. The economist is in the same position: no matter how much he abhors videogames, there still will be prices paid for them. Neither the entrepreneur nor the economist can force you not to pay for them. However, that doesn’t mean that they can’t try to convince you. </span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">It is not relativism but true morals that determine that my preferences cannot replace yours. Your choices or my choices may be foolish, and sometimes they are plainly foolish. There is no impediment to acknowledge that. What is wrong, but has been attempted many times, is to force us not to be fools. If we are adults and do not violate the law, then we are free to make our foolish choices. Again, this does not mean that other people can never be certain that we are wrong (as if it were an epistemological impossibility) or that other people must refrain from saying that we are wrong (as a matter of political correctness). Or that each of us can objectively realize that we have made mistakes in our choice of ends.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">That a man examines objectively his own actions poses no problems. They begin when he does the same with the actions of others. However, this shows that the problem is moral and political, not epistemological. Of course, when it comes to other people’s decisions, constitutional experience and a long tradition of political thought tell us that we must be very careful. And apart from that, just from the economic point of view, even plain prudence tells one that one often lacks the information -and the wisdom, and the creativity,…and the luck- that one would need if one wanted to replace others in making their personal decisions. Hayek stressed that point. But prudence and relativism are different.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Unfortunately, though he was a great economist and made fundamental contributions to his science, Ludwig von Mises seems to have thought that he had to complement his magnificent economic lessons with moral relativism. He wrote in his rightly celebrated book <i>Human Action, page 721:<o:p></o:p></i></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><i><span lang="EN-US">“…it is obvious that the appeal to justice in a debate concerning the drafting of new laws is an instance of circular reasoning. </span></i><span lang="EN-US">Delege ferenda<i> there is no such thing as justice. The notion of justice can logically only be resorted to </i>de lege lata<i>. It makes sense only when approving or disapproving concrete conduct from the point of view of the valid laws of the country…There is no such thing as an absolute notion of justice not referring to a definite system of social organization. It is not justice that determines the decision in favor of a definite social system. It is, on the contrary, the social system which determines what should be deemed right and what wrong”.<o:p></o:p></i></span></span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">The latin expressions he used mean: de lege ferenda = evaluating whether a proposed law is good or bad; de lege lata = evaluating human action according to already enacted laws (without judging whether the law is good or bad). But I think that even without these translations Mises thought is clear: total moral relativism.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Earlier in the same book he had written (page 19):</span></div>
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<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><i><span lang="EN-US">“Human action is necessarily always rational. The term </span></i><span lang="EN-US">rational action<i> is therefore pleonastic and must be rejected as such. When applied to the ultimate ends of action, the terms </i>rational<i> and </i>irrational<i> are inappropriate and meaningless. The ultimate end of action is always the satisfaction of some desires of the acting man. Since nobody is in a position to substitute his own value judgments for those of the acting individual, it is vain to pass judgment on other people’s aims and volitions. The critic either tells us what he believes he would aim at if he were in the place of his fellow, or, in dictatorial arrogance blithely disposing of his fellow’s will and aspiration, declares what condition of this other man would better suit himself, the critic</i>.”</span></span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">But then, how does Mises justify his books –and they are very good indeed- against interventionism and Marxism? He says that he just points out at contradictions between the ends that interventionists and Marxists pursue and the actions they take. He explains that he doesn’t question the ends themselves. But even this justification fails, because he has told us that human action is always rational by definition. Perhaps Mises would say that though he never objects to ends, he might uncover contradictions between declared purposes and the purposes that reveal themselves in actions. For instance, he might discover that if the goal is to annihilate a racial minority at the lowest cost, then it is contradictory to use bullets instead of gas. But then, what is the point of being so testy about that? If I cannot judge, why not leave brutes alone with their bullets versus gas choices, and their regulation versus deregulation preferences? </span></div>
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<b><span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Confusing the moral with the epistemological<o:p></o:p></span></b></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Of course we can pass judgment on other people’s actions. Even relativists do it, if only surreptitiously. Of course we can say that a child is wrong in eating too many sweets and making himself sick. And we can say that a grown-up man is doing even worse if he makes himself sick by drinking too much. There is no epistemological barrier that forbids us to realize that.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">It is morals and not epistemology that tells us that we should not force a grown up man to be good and reasonable. There is a long experience and many excellent books that explain why it is so, starting with Humboldt’s <i>The limits of State Action</i>. Of course, I won’t try to sum up these books here.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Mises confusion is very unfortunate because it misleads people into thinking that modern economic theory supports moral relativism. I live in <st1:country -region="-region" w:st="on"><st1:place w:st="on">Argentina</st1:place></st1:country> where easy indifference and nihilism are the marks of politics, and even of social life. In this my land, governments find it easy to take away from us liberties and rights that other peoples have surrendered only at the point of a gun. But most Argentines just yawn and repeat that nobody can be sure about what is right and what is wrong. If that is the present of a nation that once was among the most promising in the world, we’d better think again about the basis and the consequences of moral relativism. </span></div>
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<b><span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Moral relativism is no safeguard against tyrants<o:p></o:p></span></b></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">The confusion between what we can <i>know </i>and <i>say</i> about morals and what we can <i>impose</i> on other people is very dangerous. Some may conclude, as apparently did Mises, that if we must not impose our convictions on other men, it is only because we have no rational basis for judging their actions. However, from the same confusion others will deduce that, as indeed we may pass judgment on other people, the only objection against directing their actions disappears. Both are wrong. Western civilization learned to distinguish these two questions long ago, and we shouldn’t forget it. </span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In any case, we shouldn’t assume that relativism is a safeguard against tyrants and busybodies. At the end of the day, all that relativism tells us is that there is no rational basis for moral convictions. It doesn’t deny that people make choices and have preferences. Then, if there are no rational arguments for one or the other, we must look for other means: power struggle by treats and threats.</span></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;">I have a limited experience with politicians, functionaries, judges, and people in positions of power. But that experience tells me that those who see no role for reason in morals are seldom inclined to allow a free debate about ideas and choices. They say: what basis can that man have for opposing my will? Surely, not reason. When he counters my plans with “objective” arguments he is only trying to pull the wool over my eyes. I know very well that everything is just about national or class interests that can never be called just or unjust. I have read it in the back covers of many famous books.</span></div>
<br />Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-38803509237367917232012-04-06T05:44:00.002-07:002012-10-06T04:22:13.843-07:00Distaste for arbitrary power: Orwell and Dicey<div class="MsoNormal">
<span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">In two former articles (<a href="http://rule-of-law-not-of-men.blogspot.com.ar/2011/07/george-orwell-and-rule-of-law-power-of.html" target="_blank">The Power of Illusions</a>, <a href="http://rule-of-law-not-of-men.blogspot.com.ar/2011/08/george-orwell-and-rule-of-law-you-dont.html" target="_blank">You don't shoot a man who is running with his trousers down</a>) I have tried to show why George Orwell’s description of English attitudes about law might still be important for us today. Those attitudes can be found outside <st1:country -region="-region" w:st="on">England</st1:country>: in the <st1:country -region="-region" w:st="on">US</st1:country>, in <st1:country -region="-region" w:st="on">Switzerland</st1:country>, but they are becoming rare –perhaps they are already fading in <st1:country -region="-region" w:st="on"><st1:place w:st="on">England</st1:place></st1:country>. This explains why law rules only in a few countries and arbitrary men rule everywhere else. If Orwell was right in his description of English people, then a power that follows no rules will be detested by them, even when that power is exercised for good causes.</span></div>
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<span lang="EN-GB" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">I was born and have lived all my life in <st1:country -region="-region" w:st="on"><st1:place w:st="on">Argentina</st1:place></st1:country>. I was a law student at a time when my country was governed by a military junta, and tried hard to understand why dictatorship was possible in <st1:country -region="-region" w:st="on">Argentina</st1:country>, and unthinkable in countries like <st1:country -region="-region" w:st="on">Britain</st1:country>, the <st1:country -region="-region" w:st="on">US</st1:country>, or <st1:country -region="-region" w:st="on"><st1:place w:st="on">Switzerland</st1:place></st1:country>. I first got some grasp of the reasons when I read Orwell. By describing English attitudes, he taught me the meaning of the rule of law better than any of the books we read at the university. Distrust against arbitrary power –or better perhaps, distaste for it– seems to me the cornerstone of the law of the land (of Orwell’s land). This must have been an old English peculiarity: already in the XVII century, John Locke warned that a good king is more dangerous to liberty than a bad one because then it is easier to persuade people to brush aside their scruples about legality and so set a precedent for abuse. When the purpose seems good, it looks mean to quibble about legal restraints. Very often and in many places in the world, arbitrary power will be readily accepted if it seems to be the way to fight “imperialism”, or a tool to achieve full employment. People often think that arbitrary power is not just a way, but the only way to achieve good results –and this seems to be the prevalent opinion in many countries. But not in Orwell’s <st1:country -region="-region" w:st="on"><st1:place w:st="on">England</st1:place></st1:country>. <o:p></o:p></span></div>
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<span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;"><span lang="EN-GB">Distaste for arbitrary power</span><span lang="EN-US"> and confidence in rules. Nothing</span><span lang="EN-GB"> can be understood about English law if one forgets it. Once on the track, I saw that others had stressed the same point. Alfred Dicey, a law professor writing at the close of the XIX century, confirms Orwell’s description. Explaining in his book <i><a href="http://files.libertyfund.org/files/1714/0125_Bk.pdf" target="_blank">The Law of the Constitution</a> </i>why English people rejected censorship –which involves a large amount of discretion on those who decide what is to be published–, he wrote “<i>even at a time when the people wished the Crown to be strong, they hardly liked the means by which the Crown exerted its strength. Hundreds of Englishmen who hated toleration and cared little for freedom of speech, entertained a keen jealousy of arbitrary power, and a fixed determination to be ruled in accordance with the law of the land</i>”. Nothing describes the attitude better than this example, says Dicey. It was not a triumph of toleration, he adds, but of legalism. <o:p></o:p></span></span></div>
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<span lang="EN-GB" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">I would say that most people in most countries hold exactly the opposite view: they would welcome an arbitrary leader, or a supreme court that openly distorts the law, if it serves them in their fight for freedom of speech –or against it. The goal is everything, the legal scruple is nothing.<o:p></o:p></span></div>
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<span lang="EN-GB" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Today, many years after Dicey and Orwell have died, I am not sure the view they described still prevails among ordinary English people. At any rate, it seems there is no place for it in academic debates, which are concerned mostly with the design of a new structure that will closely follow those found in continental <st1:place w:st="on">Europe</st1:place>. Scholars find it objectionable that the English constitution lacks a declaration providing higher protection for a number of fundamental rights. Perhaps they do not realise that this is because English law protects each and every right equally. Every right, as long as it is really a right and not a wish, is fundamental. The rule of law is a powerful illusion, but once the spell is broken, once people get used to the idea that the beloved leader of the nation may trample on one right in order to promote another, they lose their scruples –their taboos, as Orwell said. They lose their distaste for arbitrary power. They scorn the gentle-man and respect only the ruthless-man.<o:p></o:p></span></div>
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<span lang="EN-GB" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Once that happens, nothing else will help. I am not sure English people still realize –as they did in Orwell’s time– that there is no institutional device, no legal text, no matter how carefully they are crafted, that would provide common decency when men and women –those in power and those who empower them– no longer care about it. Written constitutions often guarantee what nobody can guarantee, and though their declarations look grand, they are very misleading. They make it possible to think that eternal vigilance will no longer be the price of liberty. Once rights have been listed, we can rest. Judges and NGOs will take care.<o:p></o:p></span></div>
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<span lang="EN-GB"><span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Six years ago I visited <st1:city w:st="on">London</st1:city> and went to the <st1:place w:st="on"><st1:placename w:st="on">Imperial</st1:placename> <st1:placename w:st="on">War</st1:placename> <st1:placetype w:st="on">Museum</st1:placetype></st1:place>. On a wall in the section dedicated to the Holocaust, I read words attributed to Edmund Burke: “<i>All that is necessary for the triumph of evil is that good men do nothing</i>”. It has been pointed out that it is not certain whether Burke ever wrote these words. It does not matter really because he said the same thing in a thousand ways. Moreover, English people seem to have known it instinctively –perhaps they still do. While other peoples see haughty inaction as the highest moral position one can adopt, English people feel it is right to do something –late sometimes, as against Hitler, but better late than never. While other peoples see arbitrary power as the shortest path to success, English people think it better to stick to the law of their land –well, most of the time. They would think that half a loaf is still bread. They will never understand why their doing a bit of what is right is called hypocrisy by those who do a great deal of what is wrong. They acknowledge the shortcomings of the gentleman –sometimes too readily. I hope they will never learn to worship the ruthless man.</span><o:p></o:p></span></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com1tag:blogger.com,1999:blog-4041459783788618525.post-42059410886076863872012-02-01T19:11:00.003-08:002012-07-17T16:28:49.191-07:00Elizabeth Warren’s non sequitur about taxes<div class="MsoNormal"></div><div class="MsoNormal" style="margin-bottom: 6pt; text-indent: 35.45pt;"><span lang="EN-US" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">People tend to think that theoretical and philosophical stuff can be left to professors, to the kind of people ready to write 100 page papers to argue a minor point (or no point at all). Common people tend to think that no harm may come from theory, even very bad theory. Unfortunately, it is not so. Ask the Germans, ask the Russians.<o:p></o:p></span></div><div class="MsoNormal" style="margin-bottom: 6pt; text-indent: 35.45pt;"><span lang="EN-US"><span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;"><a href="http://en.wikipedia.org/wiki/Elizabeth_Warren" target="_blank">Elizabeth Warren</a>, an American politician in the Obama administration, and also a Harvard law professor, made use of the arguments about taxes and ownership that professors Murphy and Nagel presented in their book <i>The Myth of Ownership </i>(<a href="http://www.amazon.com/Myth-Ownership-Taxes-Justice/dp/0195150163" target="_blank">Amazon</a>)<i>.</i> Here is Elizabeth Warren repeating the argument:</span><o:p></o:p></span></div><div class="MsoNormal" style="margin-bottom: 6pt; text-indent: 35.45pt;"><span lang="EN-US"><br />
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<span lang="EN-US" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">I have dedicated seven posts to the analysis of that very deficient argument: </span><br />
<span lang="EN-US" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;"><a href="http://rule-of-law-not-of-men.blogspot.com/2011/09/murphy-nagel-sunstein-and-dworkin-on.html">Murphy, Nagel, Sunstain, and Dworkin on property rights</a></span><br />
<span lang="EN-US" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;"><a href="http://rule-of-law-not-of-men.blogspot.com/2011/09/murphy-nagel-and-lenin-on-ownership.html">Murphy, Nagel, and Lenin, on ownership</a></span><br />
<a href="http://rule-of-law-not-of-men.blogspot.com/2011/09/rhetorical-devices-in-myth-of-ownership.html" style="text-indent: 35.45pt;"><span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Rhetorical devices in The Myth of Ownership</span></a><br />
<a href="http://www.rule-of-law-not-of-men.blogspot.com.ar/2011/10/murphy-nagel-and-marx-on-surplus-value.html" style="text-indent: 35.45pt;" target="_blank"><span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Murphy, Nagel, and Marx on surplus value</span></a><br />
<a href="http://rule-of-law-not-of-men.blogspot.com/2011/10/philosophers-on-efficiency-of-taxes-and.html" style="text-indent: 35.45pt;"><span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Philosophers on the efficiency of Taxes and Welfare</span></a><br />
<a href="http://rule-of-law-not-of-men.blogspot.com/2011/11/nagel-and-hayek-on-government-and.html" style="text-indent: 35.45pt;"><span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Nagel and Hayek on government and wealth</span></a><br />
<a href="http://rule-of-law-not-of-men.blogspot.com/2011/11/who-needs-replacement-for-marxism.html" style="text-indent: 35.45pt;"><span style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Who needs a replacement for Marxism?</span></a><br />
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<span lang="EN-US" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">The main book, the most extensive defense of the fallacy, the source where everyone who wants to justify higher taxes goes for inspiration is <i>The Myth of Ownership. </i>But it is not the only source, as I mentioned in the posts cited above. Cass Sunstein, Obama’s regulation Tzar, has adopted it too. So has done Ronald Dworkin, a law professor whose influence extends even to <st1:place w:st="on"><st1:country-region w:st="on">Argentina</st1:country-region></st1:place>, where I was born and live. Argentines in high positions have a peculiar taste for unsound ideas.<o:p></o:p></span></div><div class="MsoNormal" style="margin-bottom: 6pt; text-indent: 35.45pt;"><span lang="EN-US" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">What prompted me to publish the posts about the issue was the astonishing fact that, with the exception of <a href="http://www.fff.org/freedom/fd0212f.asp">a reviewer</a>, nobody seemed to have contradicted the main argument of <i>The Myth of Ownership</i>, now repeated by Elizabeth Warren. And I have learned that when very bad ideas, presented by famous professors, praised by other professors, by reviews and newspapers, when these ideas meet little or no resistance, they become undeniable truths –the kind of truth that only ignorant people ignore, and half-educated people don't dare to question. Professor Sunstein feels that it is safe to write that those who refuse to accept the argument are “comically implausible”.<o:p></o:p></span></div><div class="MsoNormal" style="margin-bottom: 6pt; text-indent: 35.45pt;"><span lang="EN-US" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">Elizabeth Warren is merely repeating an idea that has reigned almost unchallenged in the academia. Certainly, I have read that some journalists have attempted to defend <st1:city w:st="on"><st1:place w:st="on">Warren</st1:place></st1:city>’s argument by diluting the poison in it. She doesn’t argue for collectivism, they say, only for higher taxes. But how high? And more importantly: on what grounds? For the grounds on which the higher taxes are justified will define the limits of the State that will impose them (or whether any limit will remain).<o:p></o:p></span></div><div class="MsoNormal" style="margin-bottom: 6pt; text-indent: 35.45pt;"><span lang="EN-US" style="font-family: Georgia, 'Times New Roman', serif; font-size: large;">The grounds are collectivistic. As I have tried to show -see the <a href="http://rule-of-law-not-of-men.blogspot.com/2011/09/murphy-nagel-and-lenin-on-ownership.html">second post</a> on the issue- the argument runs against the most fundamental ideas that define property rights and contractual liberty, against the assumptions we share when we buy a car, start a company, or collect our salary. That is to say, it runs against the way we live our lives.<o:p></o:p></span></div><br />
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</div>Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0tag:blogger.com,1999:blog-4041459783788618525.post-28218203219839246752012-01-19T16:47:00.004-08:002016-03-19T13:45:48.986-07:00Misreading Friedrich Hayek<div class="MsoNormal" style="margin-bottom: 6.0pt; text-indent: 35.45pt;">
<span style="text-indent: 35.45pt;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">It is unfortunate that law scholars usually describe <a href="http://www.google.com.ar/url?sa=t&rct=j&q=friederich%20hayak&source=web&cd=1&ved=0CDEQFjAA&url=http%3A%2F%2Fen.wikipedia.org%2Fwiki%2FFriedrich_Hayek&ei=e6wYT9_AJcXe0QGbvIXSCw&usg=AFQjCNF1q4tBjOhWbrXfzZup2FkQrrto4A&sig2=Jus7XtetzmTtlTFxks_f9A" target="_blank">Hayek</a>’s ideas about the rule of law in a way in which he ends up saying the opposite of what he actually said. </span></span></div>
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<span style="text-indent: 35.45pt;"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Hayek is usually classified among the few supporters of the formal, or “thin”, notion of the rule of law, as opposed to a </span></span><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">“</span><span style="font-family: "georgia" , "times new roman" , serif; font-size: large; text-indent: 35.45pt;">thick</span><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">”</span><span style="font-family: "georgia" , "times new roman" , serif; font-size: large; text-indent: 35.45pt;"> notion that incorporates –according to the taste of the writer</span><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">–</span><span style="font-family: "georgia" , "times new roman" , serif; font-size: large; text-indent: 35.45pt;"> from traditional rights, to economic rights, and even State intervention in the economy. Of course, Hayek himself never considered the choice between a thin and a thick notion –and he did very well in avoiding such misleading dichotomy, coined many years after he wrote his famous books.</span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In a <a href="http://www.rule-of-law-not-of-men.blogspot.com/2011/11/joseph-raz-against-friedrich-hayek-on.html" target="_blank">previous article </a>I have said that the criticism that <a href="http://www.google.com.ar/url?sa=t&rct=j&q=joseph%20raz%20wiki&source=web&cd=1&ved=0CB4QFjAA&url=http%3A%2F%2Fen.wikipedia.org%2Fwiki%2FJoseph_Raz&ei=abAYT9rkHNGctwes64SjCw&usg=AFQjCNGap0Yh2yv_krQ2D2LtXcWhDJewyg&sig2=cJa_TI012d1W9jiQ68ZK9g" target="_blank">Joseph Raz</a> directed in the seventies against Friedrich Hayek was based on a fundamental misunderstanding of Hayek’s ideas. The mistake was then enlarged and compounded by others who followed his lead. In his often cited article <i>The Rule of Law and its Virtue </i>(included in his book <a href="http://www.amazon.com/Authority-Law-Joseph-Raz/dp/0198254938" target="_blank">The Authority of Law</a>), Raz established what came to be the accepted understanding of Hayek’s position. Today, almost every academic article on the subject starts with the classification between thin and thick, puts Hayek and Raz on the thin side, and then goes on to more specific issues. That is correct as concerns Raz, but absolutely wrong when it refers to Hayek.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">The origin of the mistake must be traced back to Raz’s article cited above. He said that he agreed with Hayek’s formal understanding of the notion of the rule of law (what today is called “thin” understanding) but that he disagreed on the value that Hayek saw in it. And that is wrong: Raz’s view is not the same as Hayek’s, not only concerning the value of the rule of law, but also concerning the concept. And the difference is not of shades of meaning, but fundamental.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Unfortunately, from then on we see that Hayek is always paired with Raz (who was in fact criticizing him), and not surprisingly, most law scholars find that Raz was right in thinking that Hayek has exaggerated the value of the concept that –as we are told- he shares with his critic. The thin notion is very deficient.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Let’s see what the thin notion is. I will follow professor <a href="http://law.wustl.edu/faculty_profiles/profiles.aspx?id=7287" target="_blank">Brian Tamanaha</a>’s explanation because of his exhaustive treatment of the issue and because he provides an example of the way in which most modern scholars –following Raz’s lead- understand Hayek’s ideas (or rather, the way they misunderstand them).<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In his book <i>The Rule of Law</i>, Tamanaha first repeats Raz’s description of Hayek's ideas (see my <a href="http://www.rule-of-law-not-of-men.blogspot.com/2011/11/joseph-raz-against-friedrich-hayek-on.html" target="_blank">three articles on Raz’s criticism of Hayek</a>). Assuming that description is accurate, he tells us that the formal notion defended by Hayek and Raz “<i>imposes only procedural requirements, only restrictions about the form that law must take</i>” (94). He adds that “<i>The fact that this version of the rule of law has no content requirements renders it open to a range of ends</i>”. Tamanaha cites opinions of those who see an advantage in that lack of content because it means that it is politically neutral and would be acceptable to people from the right, left, and center. On the other hand, as the formal rule of law is morally neutral it provides no grounds for rejecting the consistent application of pernicious laws like those that legalized slavery. In fact, Tamanaha says, wily tyrants will find in it support for their position (95).<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">He asserts that “<i>The emptiness of formal legality, to make a broader point, runs contrary to the long tradition of the rule of law, the historical inspiration of which has been the restraint of tyranny by the sovereign. Such restraint went beyond the idea that the government must enact and abide by laws that take on the proper form of rules</i>” (96)<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">One must notice that all that would mean that Hayek, who claimed to defend the original understanding of the rule of law, who cited and draw support from a long tradition of thinkers, failed to see that he “run contrary” to that tradition. Either Hayek did not understand the tradition, or many of those who read him have misrepresented his ideas.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">As to the value of the formal or thin notion, Tamanaha says that “<i>it is correct to conclude that formal legality has more in common with the idea of rule</i> <b>by</b><i> law than with the historical rule of law tradition</i>” (96). Again, if we say that Hayek adhered to a formal view in which the law is merely the instrument used by good, bad, or tyrannical governments to impose their policies (whatever they might be), then we must assume that Hayek adhered to a view that he himself considered absurd. <o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">We must remember that in <i>The Road to Serfdom </i>he asked who would say that the rule of law prevails in Nazi Germany, only because Hitler obtained his powers according to the constitution then in vigor. In a preface that Hayek added years later, he said that he had meant it as a rhetorical question, and that he found it surprising that a famous jurist (Hans Kelsen) and a British politician (Harold Laski) held precisely that view. What would have been Hayek’s surprise if he had known that many years later, law scholars would ascribe that absurd idea <i>to him</i>.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Tamanaha then turns to the question of what the formal, or thin (or empty, as he aptly describes it) notion of the rule of law rules out. And he finds that it is very little. Raz stated some formal requirements about the rules themselves like generality and clarity, but most of his requisites relate to court procedure. Of course, that would allow ruthless dictatorships and discrimination. Following Raz’s thin notion, professor Tamanaha tells us that this understanding (remember it is also presented as being Hayek’s notion) is compatible with socialism: “<i>Social welfare systems, however, as well as socialist ones, also rely upon rules to function. When rules exist and are honored by the legal system formal legality operates. The essential question is: in what areas, or with respect to what activities, should legal rules govern? Formal legality has nothing to say about this question</i>” (97). <o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">However, Hayek seems to have cherished the idea that, when he revived the notion of the rule of law, he was saying something against socialism. He even thought and wrote that socialism was the <i>Road to Serfdom</i>, not to the rule of law. He seems to have imagined that there was some contradiction between them. Again, either his intellect was not as good as many people think, or his notion of the rule of law has been somewhat misunderstood by law scholars.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">But let’s examine more closely why Tamanaha asserts that under the formal notion of the rule of law, there is no objection to the welfare state. Why? Because these are new areas of government intervention, so there were no previous laws about it. There is <b><i>more</i></b> law, not <b><i>less</i></b> law and that should make Hayek happy. Tamanaha reasons thus: “<i>Hayek cannot resort to formal legality to complain about this development, as formal legality only addresses the form that law should take, not the proportion of circumstances of its application. Outside the administrative context, in areas of private law there has been an increase in the use of open-ended standards, like fairness and reasonableness, and an increase orientation of judges to achieving justice in individual cases. Yet these changes have not altered the overall rule-bound character of the legal system; nor have they led to any significant reduction in the degree of predictability, nor have they led to any evident adverse consequence on commercial transactions. If anything, modern complaints are about too much law –the vast bulk of which satisfies formal legality- not too little</i>” (98). Tamanaha seems to declare that Hayek could have complained only if there have been fewer laws; but the more the merrier.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Tamanaha reaffirms his (mis)understanding of Hayek’s basic ideas in his book <i>Law as a Means to an End. Threat to the Rule of Law. </i>After justly criticizing the modern notion of the law as a mere instrument for whatever ends, Tamanaha goes on to classify Hayek as a supporter of that pernicious view. He transcribes a tiny portion of Hayek’s characterization of the rule of law (exactly the same cited by Raz) and writes: “<i>The formal rule of law is complementary to an instrumental view of law when considered in connection with legislative declarations of law. Both the formal rule of law and an instrumental approach hold that law is an empty vessel that can consist of any content whatsoever to serve any end desired. Lon Fuller, as indicated earlier, remarked that the formal rule of law is ‘indifferent toward the substantive aims of the law and is ready to serve a variety of such aims with equal efficiency’. That is precisely how the instrumental approach portrays law: open with respect to content and ends</i>” (227-228).<o:p></o:p></span></span></div>
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<b><span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">The fundamental mistake<o:p></o:p></span></span></b></div>
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<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><span style="text-indent: 35.45pt;">Hayek said that according to the ideal of the rule of law, </span><span style="text-indent: 35.45pt;"><i>laws are indifferent</i></span><span style="text-indent: 35.45pt;"> to goals: they are like signposts on the road; they do not tell you where you have to go. Joseph Raz, said that he shared with Hayek the view that </span><span style="text-indent: 35.45pt;"><i>the ideal of the rule of law itself is indifferent</i></span><span style="text-indent: 35.45pt;"><b><i> </i></b>about the goals that laws might have. The use of the word “indifferent” hides the fact that these are two opposite views.</span></span><br />
<span lang="EN-US" style="font-family: "georgia" , "times new roman" , serif; font-size: large;"> That is the mistake in a few words, now let's examine it more closely. </span><span style="font-family: "georgia" , "times new roman" , serif; font-size: large; text-indent: 35.45pt;">As said, in describing the "thin" notion of the rule of law (supposedly Hayek's notion) I have used professor Tamanaha’s books because they are representative of today’s understanding among law scholars concerning Hayek’s contribution to the study of the rule of law. I haven’t chosen his opinions for being particularly shocking or especially misleading. On the contrary, I could have cited more extreme examples. Tamanaha’s books and articles on the subject show learning, are fully guarded by caveats and disclaimers, and his deficient representation of Hayek’s ideas is no more and no less than standard academic thought. That is in fact what makes them more worrying.</span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Just on the <a href="http://www.ssrn.com/" target="_blank">Social Science Research Network</a> I could have cited more extreme examples: <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=445821" target="_blank">scholars who suggest that strong state intervention in the economy is compatible</a> with the rule of law, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1489492" target="_blank">others who claim that state allocation and redistribution of resources is a <i>requirement</i></a> of the rule of law, and <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=922393" target="_blank">yet others who claim that in my country, Argentina,</a> a president who fired the judges who said it was against the Constitution to take dollars from private bank accounts and forcibly exchange them for devaluated pesos (Argentine Constitution declares that property is “inviolable”), a president who replaced these judges with others more pliable to his plans, with the new judges shortly after declaring that taking the dollars was perfectly in accordance with the Constitution, yes, that president took a right step on the path that leads to the rule of law.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Certainly, professor Tamanaha also indulges in some curious attacks against classic liberalism. He warns us that around 1948, just when the notion of the rule of law started to receive much attention (?) “<i>Hayek astutely, though by all indications with true conviction, hitched his liberalism to the rising star of the rule of law</i>” (<i><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1087023" target="_blank">The Dark side of the Relationship between the Rule of Law and Liberalism</a></i>, 24). Hayek hitched the two things together? This is like telling us that a man writing about the history of theatre has astutely hitched the name of William Shakespeare to a play called <i>King Lear</i>, but that as far as we know, the poor man made the connection in good faith. </span></span><br />
<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"> However, even that comparison involves an understatement: for you can understand <i>King Lear</i> without knowing it was written by Shakespeare. But you will have a very deficient understanding of the ideal of the rule of law if you fail to make the connection with classic liberalism.</span></span><br />
<span style="font-family: "georgia" , "times new roman" , serif; font-size: large; text-indent: 35.45pt;"> In the same article, professor Tamanaha tells us that the rule of law is used by international aid agencies as the "front-man" for the liberal package and against democratically elected governments in non-Western nations. Nevertheless, also these statements seem to be representative of the convictions that prevail among law scholars.</span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">But I am not concerned with details at this moment. I would like to point out what I think is the fundamental mistake in the usual (mis)representation of Hayek’s thought. What Hayek truly wrote was that under the ideal of the rule of law, laws have no altruistic aim to impose on people, no worldview, and no goal of favoring one man or one class. That was precisely what socialists had for decades criticized as being bourgeois law. In their view, it lacked substantial justice. It failed to treat poor people differently. It assured to anyone the right to <i>apply</i> for a job, but not the job. It guaranteed to anyone the right to <i>pursue</i> happiness, not happiness. In Anatole <st1:place w:st="on"><st1:country-region w:st="on">France</st1:country-region></st1:place>’s celebrated phrase “<i>the law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread</i>”. That was in their view not equality but a sham. Socialists saw no value in the rule of law because, in Harold Laski’s words, without economic security, liberty is not worth having.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Hayek turned the tables on the socialists. He argued for the moral as well as the economic value of a law that imposes no social goal on people. That is the essential message of <i>The Road to Serfdom. </i>For whatever reasons, Raz failed to understand it. While Hayek has written that formal law imposes no goal, Raz assumed that Hayek argued for a law that could be used to impose any goal. While Hayek wrote that the ideal of the rule of law means that law is indifferent concerning the goals pursued by individuals, Raz assumed that it means that the ideal of the rule of law is indifferent concerning the goals that might be imposed by governments on individuals.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Skipping Hayek’s arguments entirely, Raz then repeated the original objection of the socialists: what? An ideal that says nothing about the goals of the law? How can it do any positive good? Of course, there was a difference in style: Raz used the highly abstract language of analytic philosophy and not the colorful descriptions of the socialists. <o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">I must say that the socialists had a better insight than Raz concerning the meaning of the rule of law. They were wrong about its value, but they understood its meaning. They never charged the rule of law for being an instrument that could <i>be used for whatever purpose</i> as long as it was stated in general and clear terms so as to guide people to that end. Their objection was that the rule of law required laws to be <i>indifferent to ends</i>, and they saw no good in it. To that, Raz added: then it is an instrument that can be used for very bad purposes, for discrimination, etc. Socialist thinkers must have seen that this second charge required a misunderstanding of the very meaning of the ideal of the rule of law.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In view of the abundance of confusions, I have tried in the previous paragraphs to show the contrast between Raz and Hayek in the clearest way. It might be argued that I have used a broad brush. However, though I have omitted details, the contrast is there and is fundamental. As with every academic work, one can find disclaimers and nuanced remarks in Raz’s article that could be used to soften the contrast. Nevertheless, I do not think that they can be used to deny it.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Hayek said that according to the ideal of the rule of law, laws are like signposts on the road: they do not tell people where to go. They have no preference about that; they are indifferent concerning directions. Raz assumed that indifference meant that law could be used to impose any direction. If it has no goal, then it could have any goal, so long as it is stated in general terms. That was turning Hayek’s explanation on its head.<o:p></o:p></span></span></div>
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<span style="font-family: "georgia" , "times new roman" , serif; font-size: large;"><span lang="EN-US">Hayek wrote in <i>The Road to Serfdom</i>: “<i>The distinction we just used between formal law or justice and substantive rules is very important and at the same time most difficult to draw precisely in practice. </i></span><i><span lang="EN-GB">Yet the general principle involved is simple enough. The difference between the two kinds of rules is the same as that between laying down a Rule of the Road, as in the Highway Code, and ordering people where to go; or, better still, between providing signposts and commanding people which road to take</span></i><span lang="EN-GB">” (50<sup>th</sup> edition, 82) . Raz, and others who followed his lead, understood that explanation as if it meant that the ideal of the rule of law had nothing to say about the direction authorities could give to the content of laws. After that fatal mistake, law scholars can assuredly write that Hayek could not resort to the ideal of formal laws to complain about the barrage of regulations of the welfare state. Since that ideal refers only to the form of the law, to procedure and not to content, then it looks right to say, as does professor Tamanaha, that such formal ideal is very deficient, and very close to government <b><i>by</i></b> laws.<o:p></o:p></span></span></div>
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<b><span lang="EN-GB"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Neutralizing Friedrich Hayek<o:p></o:p></span></span></b></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Hayek’s insight into the concept and value of the rule of law is a precious gift. It sheds light on a subject where confusions have led, and still lead today, to poverty, injustice, and often to death. Hayek wrote in <i>Law, Legislation, and Liberty</i>: <i>The possibility of men living together in peace and to their mutual advantage without having to agree on common concrete aims, and bound only by abstract rules of conduct, was perhaps the greatest discovery mankind ever made” </i>(vol. 2, 136). He never meant to say that the precious discovery was that legislators can impose whatever goals they want, as long as they state them in general terms, and provided there are unbiased trials based on biased laws, with a right to plead and be heard before a sentence is pronounced.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">We are not discussing here whether there can be entities devoid of form and accidents, or whether it is in the nature of causes that they must act through a medium. People do not die because of mistakes made on such questions. It is not the same with the concept of the rule of law. Unfortunately, the understanding of Hayek’s contribution that prevails among law scholars (though perhaps not among economists) misleads people about its meaning.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">In turn, the confusion about the concept produces a second negative consequence: it gives plausibility to a rejoinder that simply skips Hayek’s arguments against the traditional objections raised by collectivist thinkers. Socialists, Communists, Fascists, and Nazis charged bourgeois law for being indifferent to its consequences, for a lack of moral content and direction. Because of the confusion about Hayek’s arguments, scholars writing in the XXI century repeat the same objections, though in a style better adjusted to prevalent academic taste.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">But there is yet another, even worse consequence of the confusion. It also gives plausibility to a “solution” for the “shortcomings” of the rule of law that simply destroys its base. Let’s see how Raz did it. It is a recipe that others have adopted with small variations but with the same unsavory consequence. After proving to his own satisfaction that the idea that he supposedly shared with Hayek has only a negative value, after comparing it with a sharp knife, after denying any moral value to it, Raz concluded that we should not simply accept the ideal of the rule of law on its face value. It is not a universal good. We have to balance it against other social goals we want to pursue. We must not, as Raz says in concluding his article, sacrifice them on the altar of the rule of law.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">So we must balance goals and values. And we must evaluate them “on their merits”, which means: considering the circumstances as they present themselves in each case. We cannot state in advance that elementary education is in all circumstances more valuable than higher education, and cannot fix once and for all that environmental considerations must prevail over the goal of keeping jobs. For a detailed and superb explanation of what decisions “on the merit” entail, I recommend chapter VI of <i>The Road to Serfdom </i>and chapter XVIII of vol. 3 of <i>Law, Legislation and <st1:place w:st="on"><st1:city w:st="on">Liberty</st1:city></st1:place>.<o:p></o:p></i></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Certainly, when one reads academic contributions on the subject, one should always stop after each “we” and be certain as to whom it refers. When one reads that “we must balance”, that “we must decide between competing values”, one must understand that on this our planet, it means that some authority will decide it. And, since it is a State’s authority, one must realize that the decision will be imposed with the full force of the State. <o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Now, the ideal of the rule of law means precisely that authorities must not do that. The solution suggested by Raz and the large number of scholars that follow him on this subject, is not a way out of a problem, it is a way out of the ideal of the rule of law. It cuts it from its base. It places “judgment on its merits” as the arbiter of whether the law should rule or public officials should decide.<o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">Of course, neither Hayek nor any other defender of the ideal of the rule of law has argued that discretion must or can disappear altogether. What they have said is that progress means a reduction of discretion, that people will do well in distrusting and distasting discretion, and that most of the “competing goals” that do-gooders want to see imposed by governments can be better pursued by remaining faithful to the ideal of the rule of law. Friedrich Hayek did not discover that ideal, he only reminded us about it. It was not an ideal shared only by Englishmen; <a href="http://www.google.com.ar/url?sa=t&rct=j&q=humboldt%20limits%20of%20state%20action&source=web&cd=2&ved=0CCsQFjAB&url=http%3A%2F%2Foll.libertyfund.org%2F589&ei=CLYYT6eOEtPYtwe4ze2TCw&usg=AFQjCNEMMG-ZL4lx5imZ9vrnn5sJzG25bA&sig2=UP-Vlwlg1iwInErMW6sI6w" target="_blank">W. von Humboldt</a> had written about it already at the end of the XVIII century, and in <st1:place w:st="on"><st1:country-region w:st="on">Prussia</st1:country-region></st1:place> no less. <o:p></o:p></span></span></div>
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<span lang="EN-US"><span style="font-family: "georgia" , "times new roman" , serif; font-size: large;">But Hayek’s contribution was fundamental. He did a magnificent work in explaining the concept and in relating it to the values on which Western civilization was built, the values for which that civilization was once admired by the rest of the world. Moreover, Hayek wrote at a time when most people had been converted to the notion that the rule of law was a matter of the past; only a stumbling block on the way to progress. Today, more than half a century after <i>The Road to Serfdom </i>was written, we must recover again that ideal, not from oblivion, but from confusion.</span><o:p></o:p></span></div>
Ariel Barbero arielbarbero@yahoo.comhttp://www.blogger.com/profile/17511188958107427644noreply@blogger.com0