Distributive justice is primitive justice

Distributive justice according to Aristotle

It is agreed that it was Aristotle who introduced the notion of distributive justice. In his Nicomachean Ethics, and at the side of the general notion of justice, he mentioned special kinds of justice, which he called corrective justice and distributive justice.

The idea of corrective justice does not seem to have inspired much interest, as it is only the reversal of injustice done in the past. Therefore, it is entirely dependent on the more general or plain notion of justice. It can hardly be justified as a special concept, as it cannot “correct” anything that wasn’t unjust according to the general notion of justice, and it cannot (must not) provide reasons or criteria for acting in a way that is different from that recommended by plain justice.

In contrast, the other special justice mentioned by Aristotle seems to have aroused much interest –even passion. It is distributive justice.

What is it according to Aristotle? In a few words, it is the kind of justice that pertains to the distribution of things shared in common among a number of people. Aristotle introduces the concept of distributive justice in chapter 2 of book V of his Nicomachean Ethics. He writes (I cite the well known translation by W. D. Ross): “one kind [of justice] is that which is manifested in distributions of honour or money or the other things that fall to be divided among those who have a share in the constitution (for in these it is possible for one man to have a share either unequal or equal to that of another)”

In chapter 3 of the same book, Aristotle adds that there are quarrels “when either equals have and are awarded unequal shares, or unequals equal shares. Further, this is plain from the fact that awards should be 'according to merit'; for all men agree that what is just in distribution must be according to merit in some sense, though they do not all specify the same sort of merit, but democrats identify it with the status of freeman, supporters of oligarchy with wealth (or with noble birth), and supporters of aristocracy with excellence.”

Later, when in chapter 4 he introduces the other kind of special justice –corrective justice– Aristotle points out that it is different from distributive justice “For the justice which distributes common possessions is always in accordance with the kind of proportion mentioned above (for in the case also in which the distribution is made from the common funds of a partnership it will be according to the same ratio which the funds put into the business by the partners bear to one another); and the injustice opposed to this kind of justice is that which violates the proportion. But the justice in transactions between man and man is a sort of equality indeed, and the injustice a sort of inequality; not according to that kind of proportion, however, but according to arithmetical proportion. For it makes no difference whether a good man has defrauded a bad man or a bad man a good one, nor whether it is a good or a bad man that has committed adultery; the law looks only to the distinctive character of the injury, and treats the parties as equal, if one is in the wrong and the other is being wronged, and if one inflicted injury and the other has received it”.

From all this, we can draw two conclusions. First, that the concept of distributive justice presupposes that a number of people have a share in some goods. If they don’t have a share, the concept does not apply to them. Distribution in that case would be another name for robbery. Secondly, that distribution may not be equal, it must be proportionate to the share one has in the common goods –the “common goods of a partnership” as Aristotle calls them in the paragraph just cited.

So far, everything is very abstract and (perhaps for the same reason) unobjectionable. Now, one can ask, how is that some people come to get a common share in goods? We may think of partners that contribute funds to a common enterprise. That seems unproblematic too. More difficult questions arise when we consider Aristotle’s assertion that distribution should be made according to merit and to the part each one has in the common goods (and honors) according to the constitution. In modern societies, constitutions do not assign goods to anyone. And it would look odd (to say the least) that honors were to be assigned to any man or group of men by the constitution in proportion to ideas about their merit.

Of course, all that made more sense more than 2000 of years ago. Social ranks were important and stable, wealth and honors were determined mostly by a man’s position, by the fact that he belonged to a family of patricians, or of slaves. Land was the main source of wealth. Its cultivation and the use of the profits were largely determined by ancient customs and laws.

Primitive justice

Hunting large animals involves a concerted effort, especially if one has only primitive weapons. The distribution of meat, skins and the like must have been regulated by very stable customs. Effort was probably taken into account, but also position and prestige. In this way, primitive societies provided opportunities for applying distributive justice that make no sense in the modern world. Of course we have partnerships, but distribution in them is regulated by contract. If you don’t think that the deal is fair you don’t sign. There is no need to argue about justice in the distribution.

Primitive societies confronted yet another and very common situation that demanded the application of the concept of distributive justice. It was another kind of hunting: the hunting of human beings and the pillage of their belongings. That was a source of profits very highly regarded in primitive tribes, as well and in ancient civilizations.

At the beginning of the Iliad we have an example of a quarrel about distributive justice that conveys to us, modern men, the atmosphere and the assumptions that must have underlined the application of the concept by the ancients.

Agamemnon, the most powerful military leader of the Greeks who siege Troy is asked to give up a girl he had received as part of the booty. He must do that in order to placate the gods –the enslaved girl is the daughter of a priest. Agamemnon acquiesces, but says that then he will take another girl from the ones given to other chieftains. He takes Briseis, who had been given to Achilles.

Achilles protests that this amounts “to rob me of the prize for which I have toiled, and which the sons of the Achaeans have given me. Never when the Achaeans sack any rich city of the Trojans do I receive so good a prize as you do, though it is my hands that do the better part of the fighting”. Here we see a dilemma: should distributive justice be made according to the part which Achilles took in the common effort, or according to the undisputed higher status of Agamemnon?

Of course, today it shocks us to read that men would engage in a dispute about the ownership of a slave and the shares that belong to those who sacked a city, and that they would have the effrontery of talking of justice. However, distribution of land and prisoners taken in war was a common practice in antiquity. It was practiced in the West by Greeks, Romans, Vikings, Normans, etc. It was very well known in the East too and in America before the arrival of Europeans. Moreover, as a source of wealth the sword was generally much more highly esteemed than the plow. Its profits fell in the realm of distributive justice, and certainly not as a minor issue.

The famous jurist Rudolf von Ihering tells us in his book Prehistory of the Indo-Europeans that conquest was one of the main sources of the right to property among the nomadic peoples that populated Europe in ancient times. Perhaps some of his conclusions might be disputed today, but the testimony of the Iliad shows that Ihering’s conclusion wasn’t far off the mark.

Again, none of that applies to modern societies. Two thousand years ago there was a major issue that provided an occasion for the application of the notion of distributive justice –distribution of booty. It doesn’t exist today. Modern wars are seldom profitable. But even if they were, few people would think that it makes sense to use the concept of justice in a discussion about the distribution of the spoils of war.

The French historian Fustel de Coulagnes says in the introduction to his book The Ancient City that we have a natural but misguided tendency to think that the ancients meant for liberty something similar to our own notion. He writes that in ancient Greece and in primitive Rome: “The human person counted for very little against that holy and almost divine authority which was called country or the state. The state had not only, as we have in our modern societies, a right to administer justice to the citizens; it could strike when one was not guilty, and simply for its own interest”. He added that “There was nothing independent in man…His fortune was always at the disposal of the state. If the city had need of money, it could order the women to deliver up their jewels, the creditors to give up their claims and the owners of olive trees to turn over gratuitously the oil which they had made”.

In the introduction to the book Fustel de Coulagnes says that the infatuation of many thinkers with the collective liberties of the ancients has created confusion and an obstacle to the progress of individual liberties among modern men: “Having imperfectly observed the institutions of the ancient city, men have dreamed of reviving them among us. They have deceived themselves about the liberty of the ancients, and on this very account liberty among the moderns has been put in peril.”

The French historian died in 1889. Had he lived to see Communists, Fascists (“everything within the state, nothing outside the state, nothing against the state”), Nazis, Peronists, and the myriad of “modern” collectivistic parties, he would have said: I warned you about that!

By the way, if for a moment we do not take into account the slave’s wishes, which did not count at the time, we modern people tend to think that Achilles case was better, that he was unfairly treated. But we must not forget that Achilles himself recognizes that Agamemnon has a point. Achilles says: “I shall fight neither you nor any man about this girl, for those that take were those also that gave”. In our own modern times, many a receiver of government’s handouts must often see the truth in Achilles words.

The justice of the ancients compared with that of the moderns

Modern people do not depend for their subsistence on any distribution made of common property or of the spoils of war. Of course there is the exception of welfare recipients; nevertheless we can say that contracts for business or for work–and not distribution by some authority– is the characteristically modern way of earning a living.

In modern nations wealth does not come –as it did thousands of years ago– mainly from the possession of land. And even land is no longer possessed according to rank or military services paid to some chief. Land changes hands as any other good: by mutual agreement (Hitler found that very objectionable in Mein Kampf). Moreover, although commerce and industry have always played a role, today they are the main sources of wealth (Hitler regretted that too). Transactions are regulated by contracts so there is no room for anyone to place himself in the role of a distributor of the profits.

I doubt whether we modern people have fully realized what these changes mean for our notion of justice.

I think that there is a parallel between the historic changes that took place more than two centuries ago concerning the notions of liberty and of justice. In his remarkable essay The liberty of the Ancients compared with that of the Moderns, Benjamin Constant said that many of his contemporaries had not realized that liberty meant something different in ancient city states and in the XIXth century. For the modern man liberty means the right to follow his own way of life, to choose his own line of work, to use and dispose of his property, to choose his religion (or choose none), to travel within and outside the country, to speak his mind –to do all that without having to depend on the opinion of any authority.

The ancients knew a very different kind of liberty. Constant wrote: the ancients carried out collectively but directly many of the functions of government. They debated and made decisions about war and peace; common citizens passed judgments, and imposed even capital punishment; they voted laws. On the other hand, all of them were subject to the collective will. In Greece, anyone could be expelled from the community by ostracism. In Rome, the censors had a right (and a duty) to intrude in anyone’s personal life. Thus, the ancients combined collective freedom with the complete subjection of the individual to the authority of the group.

Constant traced these differences back to the conditions of life that prevailed in ancient city-states and in modern nations. Here I must direct the reader to his enlightening analysis. What I want to point out now is this: much as liberty changed, so did justice. Nations that no longer live from the products of a land possessed according to rank and tilled by slaves, men who earn their own living without ever dreaming of the part they might receive as property taken from enemies, must have a notion of justice that is different from that which belonged to an age when these conditions prevailed.

Constant wrote that many of the misfortunes and horrors of the French revolution came from a misguided attempt to force upon people the liberty of the ancients, when in fact they wanted and needed the liberty of the moderns. The French ideologues had been inspired by their reading of Greek and Roman authors. They made vehement speeches about the collective will of the citizens without giving a thought to the differences between ancient Greece and modern nations.

Aren’t we doing the same with the notion of justice? Aren’t we still using notions of justice that no longer make sense? Aren’t we merely repeating opinions received from the ancients but without confronting them with the conditions of our own age?

Let’s distribute your property among us

We read all the time alarming statistics: the upper 10 per cent of the country’s population gets a disproportionate share of the “national product”. Worse still: we are told that a few developed nations in Europe together with the United States, Canada, and Japan get a disproportionate share of the world’s production of iron, energy, computers, mobile phones, everything! Isn’t that unfair? In view of it, is it not plain that the government should step in and distribute the product of the whole nation more fairly among its inhabitants? Does it not apply also to the entire world’s population? Is it not a scandal that a Swiss receives a bigger slice than a Somali?

Certainly, all that would make sense if we were talking of the distribution of things held in common according to ancient custom, or land taken from an enemy we have defeated. But it is entirely wrong that we modern people go on reasoning as if it were a natural thought that there is a common pool of “wealth” out there that simply has to be seized and distributed. That made some sense with land and slaves, but not with industry and commerce. By the way, this difference also explains why modern revolutionaries so often see that the wealth they have taken from their class enemies melts away in their hands. You can conquer land; you cannot conquer a modern enterprise. Many ideologues still don’t understand the difference.

After the roman legions had conquered a city, the land around it still produced crops. The gold and the slaves taken to Rome as booty from war actually increased the wealth of the Roman citizen. But modern revolutionaries have found time and again that when they confiscate finance and commerce, they destroy it. Popular tribunals can in a couple of hours send thousands of entrepreneurs to prison, but then they will find that the thousands of companies they seize do not increase the wealth of anyone (except perhaps a dozen commissars). They will have nothing to distribute to the millions of followers who still wait eagerly for the spoils. In the end, they will receive their fair share of poverty.

When Margaret Thatcher remarked that “the problem with Socialism is that eventually you ran out of other people’s money” she showed, not only her wit, but also that she understood the consequences of the changes in the way modern people produce wealth –something that has yet to penetrate the head of many an Oxford’s professor.

Justifications for distribution

I have said that too many ideologues and their followers eager for a share of other people’s money have not considered sufficiently the differences between ancient times and modern times. They pretend to be modern when in fact they have yet to understand the modern world. And that is confirmed, not only by the poverty they have brought about wherever they have been allowed to govern, but by the contempt these ideologues have shown for history and experience in formulating theories that justify distribution of other people’s wealth.

In all cases, the trick consists in presenting the wealth they want to distribute as an undifferentiated common pool. Marx tried it in the XIXth century with his elaborate theory of the work-value –that was perhaps the best attempt ever made, although it had been thoroughly refuted by Böhm-Bawerk before the XIXth century came to a close.

John Rawls tried a different justification in the XXth century but he mostly rested on ex cathedra assertions to convince his readers that skills and ingenuity must be treated as a common pool unfairly distributed among human beings. Skilled and clever people must be made to atone for that.

In the XXIth century, Barak Obama justifies higher taxes by telling Americans “you didn’t build that”. The infamous phrase is a good summary of the main argument in the book The Myth of Ownership by professors Murphy and Nagel. I have criticized that book in seven articles.

Though presented as philosophical advances over older ideas, these theories still rest on primitive notions that are out of touch with the modern world. None of those who promote a greater distribution by the coercive apparatus of the government seem to have grasped the differences between the justice of the ancient and the justice of the moderns

Ludwig von Mises and moral relativism

About a century ago, most economists had already understood that the theory that explains the value of economic goods (the value of railways, oil, wood, or computer games) cannot be based on the amount of labor invested in making them.

First of all, there is the objection that comes from the usual experience most of us have of having worked many hours on some useless piece of trash of no value at all. To avoid this objection the labor theory of value must be supported with some props that deviate it from its simple formulation. But there are more objections, and more props have to be added, until we realize that the theory does not help to explain anything, and only those who have invested many useless academic years in defending it would insist in adding more props, ad-hoc limitations, and caveats to salvage it. In many respects, their efforts can be compared to those of Ptolemy astronomers, who tried to shield their cherished theory from the criticism of Copernicus by adding more celestial spheres and epicycles to explain away the facts that contradicted it.

Karl Marx was the last of those Ptolemy economists. He still adhered to the old theory he had learned from classic English economists and never realized that, by the end of his life, younger generations of economists were making their own Copernican revolution. Theirs is called sometimes "the marginalist revolution", though that name points out to only one of their innovations.

These newer generations of economists argued that the value of goods cannot be deduced from any of their physical characteristics, or from labor invested in them, but from the utility they provide to a particular man, in specific circumstances, at a determined time. That change of perspective, from the goods themselves to the individuals, allowed the new economists to see what was wrong in many questions that had puzzled people for centuries. For instance, they realized that it was misleading to ask why is it that gold is more valuable than water when it is clear that we can survive without gold, but not without water. They said: don’t argue in the abstract, don’t ponder about the goods in themselves; instead, consider individual circumstances in full context, without leaving out time, place, and resources, and you will see that for men with plenty of water at their disposal (as most of us are), another glass of water may have very little value. In those circumstances, gold may reasonably have more value than water.

Moreover, they said that we have to consider each man’s own valuation of that good, not our own. Not value as seen by an economist, a philanthropist, or a central planner, but by each man and woman that decides that some good is useful to them. Of course, we might see no value in many of the goods that crowds of people buy eagerly. But then it is nevertheless certain that such trash will sell for a good price. That is what counts for the economist.

I won’t dwell more deeply on these new economic theories (that is, “new” more than a century ago), which form today the basics of economics. For those who want to learn more about them, I recommend the books of Carl Menger, Eugene Böhm-Bawerk, and Ludwig von Mises (in my view, Menger and Böhm-Bawerk are still today the clearest expositors of that conceptual revolution). What I want to point out is that these new views, by focusing on each man’s valuation –and not on a supposedly objective value determined by some expert- made them friends of free markets and led them to discover new objections to central planning. Indeed, the Austrian von Mises and the Norwegian Trigve pushed these ideas to their logical consequence, and showed that without the price system that results from individual’s free choices, central planners have no way of making economic calculations. They can play with statistics, with tons and kilowatts, but they cannot make calculations with them. You need a unit. You cannot multiply numbers of kilowatts by numbers of penicillin doses, and substract hours of packaging work. Only prices provide a way to do it. An entrepreneur takes into account the prices of raw materials, wages, etc. But planners fix all prices, so prices provide no data to them.

Another Austrian, Friederich von Hayek, explained that market prices work as signals that provide people with information about each other’s needs and valuations. When planners try to replace the market with their decrees, they cut out these channels of information. Of course, some entrepreneurs may be stupid and fail to pay attention to prices (at their peril). Some may fail to hear the signals prices convey. But without a market, planners have no way of getting such information, they have no signals. Certainly they can put prices to goods as they please, but then they will always hear their own echo.

In this way, the change a new generation of economists thought necessary in one of the most basic economic concepts –the concept of value-, led them to appreciate the importance of free markets. That put them at odds with the tendencies that prevailed among politicians and the public (and indeed, among most of their colleagues) during the last decades of the XIX and the beginning of the XX centuries. By that time, most people were being converted to the ideal of central planning.

On the other hand, that same change in the concept of value seemed to place these economists closer to a tendency that was becoming popular among the intellectual elites. That was moral relativism, or perhaps we could say, moral irrationalism.

Against the wisdom of all previous ages, philosophers had started to argue that moral principles have no rational basis. They taught that all moral choices are ultimately irrational. Slowly permeating to the public at large, that new view led to horrible consequences. People started to get used to the notion that the essence of politics was struggle, and not rational debate. It was significant that new parties started to call their followers “militants”.

I think that the first of those two intellectual links, the one with free markets, is correct and logical (the expression “free market” is, of course, a redundancy, like “free exchange of ideas”). But I think that the second link, the one with moral irrationalism, is wrong because it does not really derive from the new ideas about value introduced by economists. Unfortunately some among them, most notably Mises, seem to believe the contrary.

Subjective economic value and a non sequitur

The expression “subjective value”, so much in use in economic theory, is very apt to lead to confusion. It would be better to call it “individual value”, or “personal value”. Certainly “subjective” value is opposed to “objective” value such as labor-value. But this is only because “labor” value is not linked to any person’s values, neither rational and sound nor irrational and stupid. It was a value deduced from hours of work. That was a mistake corrected by the conceptual revolution in economic thought that took place at the end of the XIX century. But from that –which was right- some have thought it necessary to derive another conclusion: that we cannot distinguish between sound and stupid preferences. That was wrong, a non sequitur, i.e. a conclusion that does not follow from the premises.

Of course, one might try other arguments in order to show that values are irrational, and that they cannot be defended and rejected by objective reasons. But then one should look for arguments elsewhere: modern economic theory provides no basis for it.

It is easy to understand why even foolish economic decisions count for the science of economics; there is no need to justify that with moral relativism and to deny that indeed people often make very stupid economic decisions. Of course, the entrepreneur must take prices as they are. He may rightly deplore the fact that in some neighborhoods men buy more gin than tea, but he cannot ignore it. The economist is in the same position: no matter how much he abhors videogames, there still will be prices paid for them. Neither the entrepreneur nor the economist can force you not to pay for them. However, that doesn’t mean that they can’t try to convince you.

It is not relativism but true morals that determine that my preferences cannot replace yours. Your choices or my choices may be foolish, and sometimes they are plainly foolish. There is no impediment to acknowledge that. What is wrong, but has been attempted many times, is to force us not to be fools. If we are adults and do not violate the law, then we are free to make our foolish choices. Again, this does not mean that other people can never be certain that we are wrong (as if it were an epistemological impossibility) or that other people must refrain from saying that we are wrong (as a matter of political correctness). Or that each of us can objectively realize that we have made mistakes in our choice of ends.

That a man examines objectively his own actions poses no problems. They begin when he does the same with the actions of others. However, this shows that the problem is moral and political, not epistemological. Of course, when it comes to other people’s decisions, constitutional experience and a long tradition of political thought tell us that we must be very careful. And apart from that, just from the economic point of view, even plain prudence tells one that one often lacks the information -and the wisdom, and the creativity,…and the luck- that one would need if one wanted to replace others in making their personal decisions. Hayek stressed that point. But prudence and relativism are different.

Unfortunately, though he was a great economist and made fundamental contributions to his science, Ludwig von Mises seems to have thought that he had to complement his magnificent economic lessons with moral relativism. He wrote in his rightly celebrated book Human Action, page 721:

“…it is obvious that the appeal to justice in a debate concerning the drafting of new laws is an instance of circular reasoning. Delege ferenda there is no such thing as justice. The notion of justice can logically only be resorted to de lege lata. It makes sense only when approving or disapproving concrete conduct from the point of view of the valid laws of the country…There is no such thing as an absolute notion of justice not referring to a definite system of social organization. It is not justice that determines the decision in favor of a definite social system. It is, on the contrary, the social system which determines what should be deemed right and what wrong”.

The latin expressions he used mean: de lege ferenda = evaluating whether a proposed law is good or bad; de lege lata = evaluating human action according to already enacted laws (without judging whether the law is good or bad). But I think that even without these translations Mises thought is clear: total moral relativism.

Earlier in the same book he had written (page 19):

“Human action is necessarily always rational. The term rational action is therefore pleonastic and must be rejected as such. When applied to the ultimate ends of action, the terms rational and irrational are inappropriate and meaningless. The ultimate end of action is always the satisfaction of some desires of the acting man. Since nobody is in a position to substitute his own value judgments for those of the acting individual, it is vain to pass judgment on other people’s aims and volitions. The critic either tells us what he believes he would aim at if he were in the place of his fellow, or, in dictatorial arrogance blithely disposing of his fellow’s will and aspiration, declares what condition of this other man would better suit himself, the critic.”

But then, how does Mises justify his books –and they are very good indeed- against interventionism and Marxism? He says that he just points out at contradictions between the ends that interventionists and Marxists pursue and the actions they take. He explains that he doesn’t question the ends themselves. But even this justification fails, because he has told us that human action is always rational by definition. Perhaps Mises would say that though he never objects to ends, he might uncover contradictions between declared purposes and the purposes that reveal themselves in actions. For instance, he might discover that if the goal is to annihilate a racial minority at the lowest cost, then it is contradictory to use bullets instead of gas. But then, what is the point of being so testy about that? If I cannot judge, why not leave brutes alone with their bullets versus gas choices, and their regulation versus deregulation preferences?

Confusing the moral with the epistemological

Of course we can pass judgment on other people’s actions. Even relativists do it, if only surreptitiously. Of course we can say that a child is wrong in eating too many sweets and making himself sick. And we can say that a grown-up man is doing even worse if he makes himself sick by drinking too much. There is no epistemological barrier that forbids us to realize that.

It is morals and not epistemology that tells us that we should not force a grown up man to be good and reasonable. There is a long experience and many excellent books that explain why it is so, starting with Humboldt’s The limits of State Action. Of course, I won’t try to sum up these books here.

Mises confusion is very unfortunate because it misleads people into thinking that modern economic theory supports moral relativism. I live in Argentina where easy indifference and nihilism are the marks of politics, and even of social life. In this my land, governments find it easy to take away from us liberties and rights that other peoples have surrendered only at the point of a gun. But most Argentines just yawn and repeat that nobody can be sure about what is right and what is wrong. If that is the present of a nation that once was among the most promising in the world, we’d better think again about the basis and the consequences of moral relativism.

Moral relativism is no safeguard against tyrants

The confusion between what we can know and say about morals and what we can impose on other people is very dangerous. Some may conclude, as apparently did Mises, that if we must not impose our convictions on other men, it is only because we have no rational basis for judging their actions. However, from the same confusion others will deduce that, as indeed we may pass judgment on other people, the only objection against directing their actions disappears. Both are wrong. Western civilization learned to distinguish these two questions long ago, and we shouldn’t forget it.

In any case, we shouldn’t assume that relativism is a safeguard against tyrants and busybodies. At the end of the day, all that relativism tells us is that there is no rational basis for moral convictions. It doesn’t deny that people make choices and have preferences. Then, if there are no rational arguments for one or the other, we must look for other means: power struggle by treats and threats.

I have a limited experience with politicians, functionaries, judges, and people in positions of power. But that experience tells me that those who see no role for reason in morals are seldom inclined to allow a free debate about ideas and choices. They say: what basis can that man have for opposing my will? Surely, not reason. When he counters my plans with “objective” arguments he is only trying to pull the wool over my eyes. I know very well that everything is just about national or class interests that can never be called just or unjust. I have read it in the back covers of many famous books.

Distaste for arbitrary power: Orwell and Dicey

In two former articles (The Power of Illusions, You don't shoot a man who is running with his trousers down) I have tried to show why George Orwell’s description of English attitudes about law might still be important for us today. Those attitudes can be found outside England: in the US, in Switzerland, but they are becoming rare –perhaps they are already fading in England. This explains why law rules only in a few countries and arbitrary men rule everywhere else. If Orwell was right in his description of English people, then a power that follows no rules will be detested by them, even when that power is exercised for good causes.

I was born and have lived all my life in Argentina. I was a law student at a time when my country was governed by a military junta, and tried hard to understand why dictatorship was possible in Argentina, and unthinkable in countries like Britain, the US, or Switzerland. I first got some grasp of the reasons when I read Orwell. By describing English attitudes, he taught me the meaning of the rule of law better than any of the books we read at the university. Distrust against arbitrary power –or better perhaps, distaste for it– seems to me the cornerstone of the law of the land (of Orwell’s land). This must have been an old English peculiarity: already in the XVII century, John Locke warned that a good king is more dangerous to liberty than a bad one because then it is easier to persuade people to brush aside their scruples about legality and so set a precedent for abuse. When the purpose seems good, it looks mean to quibble about legal restraints. Very often and in many places in the world, arbitrary power will be readily accepted if it seems to be the way to fight “imperialism”, or a tool to achieve full employment. People often think that arbitrary power is not just a way, but the only way to achieve good results –and this seems to be the prevalent opinion in many countries. But not in Orwell’s England.

Distaste for arbitrary power and confidence in rules. Nothing can be understood about English law if one forgets it. Once on the track, I saw that others had stressed the same point. Alfred Dicey, a law professor writing at the close of the XIX century, confirms Orwell’s description. Explaining in his book The Law of the Constitution why English people rejected censorship –which involves a large amount of discretion on those who decide what is to be published–, he wrote “even at a time when the people wished the Crown to be strong, they hardly liked the means by which the Crown exerted its strength. Hundreds of Englishmen who hated toleration and cared little for freedom of speech, entertained a keen jealousy of arbitrary power, and a fixed determination to be ruled in accordance with the law of the land”. Nothing describes the attitude better than this example, says Dicey. It was not a triumph of toleration, he adds, but of legalism.

I would say that most people in most countries hold exactly the opposite view: they would welcome an arbitrary leader, or a supreme court that openly distorts the law, if it serves them in their fight for freedom of speech –or against it. The goal is everything, the legal scruple is nothing.

Today, many years after Dicey and Orwell have died, I am not sure the view they described still prevails among ordinary English people. At any rate, it seems there is no place for it in academic debates, which are concerned mostly with the design of a new structure that will closely follow those found in continental Europe. Scholars find it objectionable that the English constitution lacks a declaration providing higher protection for a number of fundamental rights. Perhaps they do not realise that this is because English law protects each and every right equally. Every right, as long as it is really a right and not a wish, is fundamental. The rule of law is a powerful illusion, but once the spell is broken, once people get used to the idea that the beloved leader of the nation may trample on one right in order to promote another, they lose their scruples –their taboos, as Orwell said. They lose their distaste for arbitrary power. They scorn the gentle-man and respect only the ruthless-man.

Once that happens, nothing else will help. I am not sure English people still realize –as they did in Orwell’s time– that there is no institutional device, no legal text, no matter how carefully they are crafted, that would provide common decency when men and women –those in power and those who empower them– no longer care about it. Written constitutions often guarantee what nobody can guarantee, and though their declarations look grand, they are very misleading. They make it possible to think that eternal vigilance will no longer be the price of liberty. Once rights have been listed, we can rest. Judges and NGOs will take care.

Six years ago I visited London and went to the Imperial War Museum. On a wall in the section dedicated to the Holocaust, I read words attributed to Edmund Burke: “All that is necessary for the triumph of evil is that good men do nothing”. It has been pointed out that it is not certain whether Burke ever wrote these words. It does not matter really because he said the same thing in a thousand ways. Moreover, English people seem to have known it instinctively –perhaps they still do. While other peoples see haughty inaction as the highest moral position one can adopt, English people feel it is right to do something –late sometimes, as against Hitler, but better late than never. While other peoples see arbitrary power as the shortest path to success, English people think it better to stick to the law of their land –well, most of the time. They would think that half a loaf is still bread. They will never understand why their doing a bit of what is right is called hypocrisy by those who do a great deal of what is wrong. They acknowledge the shortcomings of the gentleman –sometimes too readily. I hope they will never learn to worship the ruthless man.