Friday, March 26, 2021

The vegetarian butcher: Eugenio Zaffaroni

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

Think 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.

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.

In a speech he gave in 1993 in Mexico City1, 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.

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.2 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.

Now, apart from the general unsoundness of Zaffaroni's doctrines (a fact that must be expected of a man that the Argentine intelligentsia find 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.

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.

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 !

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.

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.

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?

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.

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.

Criminal law is selective –yes, it must be selective

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?

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!

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.

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.

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.

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 1984 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.

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 not surprisingly 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.

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?

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.

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.

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.

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.

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?

The “crime” of punishing criminals

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.

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.

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").

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 requirement 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.

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.

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.

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.

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.

Zaffaroni, an expert on many things

A couple of years before he was appointed to the Argentine Supreme Court, in a speech he gave in Guarujá, Brazil,3 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.

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.

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.

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.

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.

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.

The darling of the establishment

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. We'd better know what he is up to.

Note about web references: 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” (his speech in Brazil) or “Eugenio Zaffaroni qué hacer con la pena” (his speech in Mexico).

1 http://psicopenal.org/pdf/quehacerconlapena.pdf

2 http://www.pensamientopenal.com.ar/nhd/.

3 http://www.homenajeazaffaroni.com.ar/confezaffa.htm.

Tuesday, November 3, 2020

Holmes and Sunstein: the fallacy about The Cost of Rights

     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.

     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 cost nothing or are somewhat different from welfare. You are wrong, they all have costs and all require taxes. In fact, all rights are welfare rights. Don't you feel ashamed of sustaining nonsensical prejudices that academics have debunked so many times?

     The issue is no longer merely academic. In the last decade it has percolated into politics and already many leaders in the US Democratic party call for an enlargement of the New Deal of the 1930s. Professor Cass Sunstein, who was appointed Regulation Tzar 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 of the book 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 professor Stephen Holmes.

     These ideas have their echoes all around the world. Where I live, Argentina, Carlos Nino, a law professor and an adviser to former President Raúl Alfonsin, 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 (link to my two articles on Nino). 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.

     To my knowledge, 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 (link to the first) and now I intend to do the same with the second. This time 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.


Opposition to more welfare rights is based on prejudice (is it really?)

     “The Cost of Rights” 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. Holmes 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.

     Using this case they 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 implicitly assume that those on the other side reject all government services and all taxes. Moreover, professors Holmes and Sunstein are not arguing for the status quo, they 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.

     The authors themselves must have had some misgivings about that argument so they go to the main one: asserting that all rights are welfare rights. Then, if you oppose government handouts you must oppose firefighters.

     Through the book, the professors declare again and again 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. Governments have to spend money protecting free speech against those who might try to violently suppress 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.

     Stretching things a bit, the authors 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 they 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, they 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).

     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). These are just two ways of allocating public resources. 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.

The main fallacy

     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 on top of that, the money or the houses are provided by government by taxing other people.

     Loose reasoning is then essential for the purpose. Holmes and Sunstein 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 they 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 the rich have the gall to complain about welfare!).

     Sunstein repeated 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, for the benefit of those who ignore it, 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).

     The trouble with that line of argument is that poor 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 and leave 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.

     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 different costs -first the handout and then its protection- is then easily forgotten.

     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.

Was government always such big?

     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 [traditional rights], government must do far more than provide a military. Its apparatus must be very large indeed” (The Second Bill of Rights, 200-201).

     The trouble with Sunstein argument is that government was indeed far smaller before welfare and entitlements started to grow. There is no need to speculate whether government would be smaller, it was 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 (US Welfare Spending History).

     Again, for those like Holmes and 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 Holmes and Sunstein are trying to counter. Nor are they just suggesting that welfare spending is kept at the present level. They think that the New Deal is an unfinished revolution, that its welfare programs ‒and there was much added since‒ must be expanded.

     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 are seen as negative not requiring much from government besides respect for freedom while public housing and food stamps are seen as positive i.e. they are provided by government. As we have seen, the professors' main strategy to blur 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.

     Certainly, the word “negative” is inaccurate if one thinks about the protection of property, but not if one thinks about the provision of property. Traditional rights are negative in the sense that they are only protected by government action, but not provided by government as entitlements are. One 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 using only one word does not remove the difference, it only hides it.

     Nevertheless, Holmes and Sunstein try hard to show that the distinction has no basis. They 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. As the distinction between dogs and cats is nowhere to see in a dog show, the professors would be able to prove that such distinction must arise only from prejudice.

Misconstruing history

     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 ownership, just as they establish and interpret the regulations governing all of our basic rights” (68)

     That assertion, namely 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 rights become 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; as a matter of fact and history there were property rights in the US before the Constitution was enacted.

     Perhaps Holmes and Sunstein themselves sense that their view is alien to American history and traditions so they must go far away and long ago for support. The professors go to medieval England, where the feudal order might provide a better basis for their understanding of property rights. They 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).

     A simplification may not be necessarily misleading, but the one above points to the exception and silences the rule. William the Conqueror treated the Saxons as a vanquished people with no right to their land. That 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 admit that he had violated his subjects' rights and promised to respect them in Magna Charta.

     Moreover, if the description is wrong about the beginning of common law in medieval England, it is absurd to suggest that a government that takes property from some people and gives it to its followers offers a pattern that is relevant to modern United States ‒or so I hope.

Danegeld theory

     In many parts of “The Cost of Rights” the authors argue as if only the rich were interested in law and order and even in defense against foreign invasion. 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 we learn that, 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 professors' mistaken assumption is the same that Vladimir 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.

     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 hit. 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. 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.

     Never mind, Holmes and Sunstein tell us that law determines who must lack resources because it doesn't allow the poor to remedy their situation by violent means (200). 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.


If you protect rights, you favor the rich

     In words that would have made Karl Marx very proud, 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 which includes rules governing inheritance 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).

     With the help of the authors we discover that law does not treat people equally. The law “determines” that some lack resources. 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” (203).

     But then one wonders why do Holmes and Sunstein apply that reasoning only to the protection of property rights. They might as well 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?

     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.

     Of course Holmes and Sunstein wouldn't 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. Nevertheless, 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.

     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.”

     “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'. 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.' 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 3rd edition, 150-151).

     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 personal rights.

     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 (link1, link2).

Two kinds of welfare, and the perils of clientelism

     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 have tried to show that their reasoning is fallacious and that their references to history are inaccurate. Nevertheless one of the oddest things about their arguments is that they omit to take into account one of the most obvious motives why governments expand welfare and entitlements: to get votes.

     And this shows that it is vital to distinguish two kinds of welfare,

1 Public services open to everyone and paid by the whole population

2 Goods given only to some people, and paid mostly by other people

     Everywhere there is a mixture of the two kinds of welfare, certainly, but it is relevant to distinguish them because they have different political effects. Both pose dangers, both tend to increase the power of government over people, but the second form of welfare 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. A people that used to learn from the misakes of other nations is now a disillutioned crawd led by fools who embrace every progressive fad they can find. That decline was eased in no small measure by the clever use of vague words, intellectual confusion, and the distortion of the past. One should never assume that they have no consequences.

Monday, June 8, 2020

Carl Menger: the trouble with fiat money and fiat law


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.
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.
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.
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.
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.

Fiat law
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.
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.
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.

The same forces operate today
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.
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.
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.
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.

Weakening spontaneous order
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.
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.

Why is Menger still relevant today?
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.
When I wrote my criticism 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).
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?
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?
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
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.
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.