China and Great Britain, two misleading comparisons

I have been following the instructive debates held under the name Intelligence squared, in which two teams of experts and academics argue for and against a proposition. The public votes both before and after the debate and the questions. A number of those debates have been dedicated to the advantages and disadvantages of democracy. There was one that questioned whether Democracy is India's Achille's heel. Another debate was, One size doesn't fit all: Democracy is not always the best form of government. Yet another one under the title Democracy, even the best ideas may fail. There was a very heated exchange when the issue was, Better elected Islamists than dictators.

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 Western liberal democracy would be wrong for China.

First misleading comparison: development in 19^th century Britain vs 21^st century China

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^th century. That was said by Martin Jacques, senior research fellow at the London School of Economics, former editor of the journal Marxism Today, 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 The End of the Western World and the Birth of a New Global Order, 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.

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^th century. Her argument was in turn answered by Martin Jacques -already mentioned against democracy- who corrected her and said that the rate of growth was different, much faster in the case of 21^st century China.

It is a pity that nobody pointed out to him that comparing rates without comparing times and circumstances is absolutely flawed.

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.

In the late 20^th century and at the beginning of the 21^st 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.

Second misleading comparison: limited democracy in 19^th century Great Britain

Professor Jacques pointed out that not everyone could vote in 19^th 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 the rule of law.

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.
      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?

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^th 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.

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 right is only what a majority recognizes as such, then the rule of law is dead.

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^th century Great Britain.

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 the West. We shouldn't hear the same argument again without answering it.

The cultural argument

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.

Carlos Santiago Nino on social and economic rights

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 A country outside the law- 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 rational 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 of politics over the judiciary.

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.

Social and economic rights as a natural extension of individual rights

Nino's main strategy was to naturalize 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 simply a natural extension of those older rights. Moreover, he protested against the very names used to distinguish both kinds of rights. After all “social” rights aren't enjoyed by groups but by individuals, as any other right is. Nino wrote 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)

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 The Myth of Ownership, Nino said 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's book I have shown that this argument is sophistic (link). Both 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 on top of that, social and economic rights require a government's 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 consist of resources or advantages given by governments, which afterwards are protected by policemen and judges as any other right is.

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 enjoy them because 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 groups is what determines who will enjoy those 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 after all they are enjoyed by individuals, as any other right.

Actions and omissions

Nino's most distinctive contribution to the fusion (or confusion) of social and economic rights with traditional rights is his attack on the distinction between actions and omissions. He acknowledges 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 of liberalism that every social practice or convention must be subject to criticism (one might point out that this tends 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 way to distinguish them from actions (4). Both are conditions to results.

Nino reminds us that in certain cases we blame people for their omissions. For instance, a mother who fails to feed 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 linked to 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 cause results that violate rights when we have the duty not to cause them, be it by action or omission.(5) This would prove Nino's point, that omissions and actions are the same.

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.

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.

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.

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)

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)

Socialist roots of Nino's argument for social and economic rights

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.

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.

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.

Ideas, especially bad ones, have consequences

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.

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 (link to an entry with some comments on this ruling). 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.

The Court's majority opinion said that free speech must be strongly protected, though the right of having that speech heard 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.

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.

(1) Un país al margen de la ley 2005 (A country outside the law –published after his death) p. 205.

(2) Fundamentos de Derecho Constitucional 1992 (Foundations of Constitutional Law) 398.

(3) Op. cit. p. 399.

(4) Op. cit. p. 399

(5) Op. cit. p. 190.

(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).

(6) Op. cit. p. 403.

(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 Causing Death and Saving Lives. 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.

(7) Op. cit. p. 188.

(8) Op. cit. p. 191.

Carlos Santiago Nino against Hayek

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.

Carlos Santiago Nino (1943–1993, link to the wikipedia) 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.

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.

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.¹ He endorsed the idea of collective rights², and made the usual objections against both the efficiency and the morality of free markets.³

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^st 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.

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^th 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.⁴

Nino against spontaneous order

In his book Foundations of Constitutional Law (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”.

What is spontaneous order?

It is clear to me that Nino failed to understand Hayek's argument. First of all, he failed to see what 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.

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.

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.

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.

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.

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.

Hayek wrote in his book Law, Legislation, and Liberty: “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). That 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.

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.

The legal system

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.

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.

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”.

Those who write statutes and codes find these things already working; 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”.

1 See his Fundamentos de Derecho Constitucional (Foundations of Constitutional Law) p. 364.

2 Op. cit. p. 371.

3 Op. cit. p. 372-373.

4 A translator and follower of British Marxist Gerald Cohen.