Slavery is Freedom?
Published by Ravikiran Rao July 11th, 2005 in Anarcho CapitalismI’m afraid Sauvik’s post is the most bizarre one I’ve read from someone who identifies himself as a “libertarian” So now the way to achieve our ideals of limited government is to hand over absolute power to a monarch? How convenient! If only we had received the benefit of his insight earlier, the quest that has occupied intelligent minds for more than 200 years now - the quest to design the right set of checks and balances to ensure that the government does just what we want without overstepping his mark - could have been abandoned.
We capitalists frequently criticise socialists and statists because they prepend “The government should..” to their favourite policy prescriptions, but do not bother to examine why exactly a government composed of ordinary humans will in fact implement them. I dimly remember reading something like “The problem with most politico-economic thinking is that it fails to analyze the nature of the beast it seeks to advise - the state” in a book I read long back. I wonder what has come over the person who wrote it.
To be fair, I can understand how he got that idea. This is what comes of playing too many strategy games like “Age of Empires” or “Caesar”. In those games, you have absolute power over a territory and you get points for making it prosperous. If you play too many of those games, it is quite possible that you will think that this is a good way of organizing the real world. After all, in the real world too, an absolute monarch would get “points” in the form of taxes by increasing the wealth of his subjects. It looks like the perfect alignment of incentives that we are looking for.
Except, of course, that is not how things are in the real world. In online games, we usually have convenient tooltips giving us a quick overview of the affairs in our domain. In the real world, rulers don’t have information at their finger tips - this is something we capitalists never tire of pointing out. More importantly, rulers aren’t just looking for money. They are also looking for power. After a while, the pleasure that a ruler gets by accumulating surplus taxes is tempered by the need to be a control freak (you have to be a control freak, or you won’t be a ruler).
But most importantly, unlike normal markets, there is no check to ensure that irrational and bad rulers are thrown out of power. A megalomaniac owner who runs his company irrationally faces bankruptcy - there is no similar check over a ruler who rules badly. Wait - that’s not correct. There used to be a check at one time. A bad ruler used to face internal revolt and wars from outside. But with modern technology, those threats have subsided - as the happy experience of Kim Il Jong in North Korea indicates.
I can understand if Sauvik’s point is to illustrate the dangers of illiberal democracy - after all in a non-functioning democracy like Bihar, its rulers have a greater incentive to pillage (because they might get voted out tomorrow and hence do not have an incentive to invest in its well-being) without the old (rebellion and war) and new (getting voted out - because it is a “non-functional” democracy) disincentives against doing so. The answer to that among us capitalists used to be that democracy is not enough, we need things like rule of law, and those things are hard to establish. Sauvik’s answer seems to be to establish a Nepal-style monarchy - how he’s come up with it is beyond belief.
There seem to be two important components to a political system: law generation and law enforcement (the latter being what you call “rule” of law). What Sauvik said is that prosperity seems to be dictated more by law enforcement than the people in charge of law generation (particularly if there is something called a constitution which puts a restriction on possible set of laws)
What you address in your post is the relative merits of various law generators in generating laws. But that’s not the point of Sauvik’s post.
What would be interesting to see is a discussion on the effect of different law generating systems on law enforcement.
i hope ravikiran has read my earlier post at #6.
i repeat: this is not a discussion on monarchy vs democracy (although we should discuss this later). this is merely a discussion on how nepal can get around its current problems. the govt of india (socialist illiberal democracy and a predatory state) is getting the maoists and 6 other nepalese ‘political parties’ to parley with the king to fix a timeframe for a return to democracy. i am just saying that if the king does the 3 things adam smith asked of a sovereign, viz: defence, justice and public goods, then with free trade and a freely tradeable currency, nepal would flourish like never before and the maoists would be history.
about the query raised by seven times six: under the common law, there is a lot of difference between LAW and LEGISLATION. the LAW is the common law, on property rights, contracts and torts, and this law is JUDGE MADE under the principle of STARE DECISIS: that is, precedents. judges and lawyers in courtrooms however do not MAKE LAW, they FIND LAW by looking for property rights and precedents.
LEGISLATION, in the old days, was always considered the king’s instrument, disruptive in its effects on society. the people resisted LEGISLATION by the king and found their security under the common law. the british parliament was for many centuries just a body that voted on taxes and performed no legislative acts whatsoever. only in the 19th century, under the influence of blackstone, did the notion of PARLIAMENTARY SOVEREIGNTY gain ground, all over the common law countries, including the usa, and LEGISLATION became ABOVE THE LAW. (judicial review rarely worked). in the old days, it was said that THE KING IS UNDER GOD AND THE LAW: that is, SOVEREIGNTY LAY IN THE LAW. LEX, REX: there is no king where will rules and not the law. today, thanks to blackstone, LEGISLATION is interfering in each and every private property matter, from marijuana to dance bars. these would be unthinkable under the old common law, which guaranteed both LIBERTY as well as JUSTICE.
thanks all for a much spirited discussion: made my day!!
i hope ravikiran has read my earlier post at #6.
i repeat: this is not a discussion on monarchy vs democracy (although we should discuss this later). this is merely a discussion on how nepal can get around its current problems. the govt of india (socialist illiberal democracy and a predatory state) is getting the maoists and 6 other nepalese ‘political parties’ to parley with the king to fix a timeframe for a return to democracy. i am just saying that if the king does the 3 things adam smith asked of a sovereign, viz: defence, justice and public goods, then with free trade and a freely tradeable currency, nepal would flourish like never before and the maoists would be history.
about the query raised by seven times six: under the common law, there is a lot of difference between LAW and LEGISLATION. the LAW is the common law, on property rights, contracts and torts, and this law is JUDGE MADE under the principle of STARE DECISIS: that is, precedents. judges and lawyers in courtrooms however do not MAKE LAW, they FIND LAW by looking for property rights and precedents.
LEGISLATION, in the old days, was always considered the king’s instrument, disruptive in its effects on society. the people resisted LEGISLATION by the king and found their security under the common law. the british parliament was for many centuries just a body that voted on taxes and performed no legislative acts whatsoever. only in the 19th century, under the influence of blackstone, did the notion of PARLIAMENTARY SOVEREIGNTY gain ground, all over the common law countries, including the usa, and LEGISLATION became ABOVE THE LAW. (judicial review rarely worked). in the old days, it was said that THE KING IS UNDER GOD AND THE LAW: that is, SOVEREIGNTY LAY IN THE LAW. LEX, REX: there is no king where will rules and not the law. today, thanks to blackstone, LEGISLATION is interfering in each and every private property matter, from marijuana to dance bars. these would be unthinkable under the old common law, which guaranteed both LIBERTY as well as JUSTICE.
thanks all for a much spirited discussion: made my day!!
further to my above post (sorry it got repeated) i would like to stoke ravikiran’s ire by asserting that DEMOCRACY IS SLAVERY and, that living under the common law, with PRIVATE PROPERTY RIGHTS is the ONLY way to secure LIBERTY as well as solve THE MYSTERY OF CAPITAL.
for example: even till today, the king of england requires the lord mayor’s permission to march his army through the (old) city of london. if you own a small country cottage in england, the king needs your permission to enter it. the common law was a means by which englishmen achieved liberty and also managed to leverage their properties to obtain capital - often from foreign moneylenders. that is why ‘merrie old england’ was where modern capitalism was born - the industrial revolution.
under DEMOCRACY, with ‘parliamentary sovereignty’ and the ‘precious vote’ instead of private property rights what we have is what i call DEMOCRATIC DESPOTISM (75,000 dancing girls livelihoods threatened by a despot; smoking bans on celluloid etc) and POVERTY.
democratic despotism is writ large over the western world as with legislation against cannabis. they have subverted the common law, judicial review has not worked because supreme courts are also part of the government (a curse on both blackstone as well as montesquieu), and they have paved the way for every manner of despotism under the guise of democracy.
hans-hermann hoppe insists that the path of democracy taken in the past 200 years has been historic regress and de-civilisation. things were better under the good old common law, with private property and no vote. then, there was LIBERTY under the Law. and the king was restricted in his powers, as he too was UNDER THE LAW, with just 3 DUTIES to perform. under indian democracy, we the citizens have ‘fundamental duties’! and the democratic despots have no ‘checks and balances’ governing their whims.
Ok, quote 1 + quote 2 indicates that you want to discuss this NOW.
Here it goes.
Ok. I want to take the argument in 2 ways. First the theory. Then the evidence.
Theory – what is the job of the king? To provide for protection and justice, right? The point made by Ravikiran is that the need to appear more just and earn more money is tempered by the need to be a control freak. The same theory of subjective preferences that Austrian economics professes, indicates to the possibility that a king may not necessarily be interested in wealth as measured in conventional terms. He may be interested in being a control freak. He may not be interested in leaving a legacy at all. He may be interested in blowing it all away. And his feedback mechanism is pathetic to say the least. So, even in theory, there is no certainty that the king will do what he is supposed to be doing.
Evidence - what has happened in history? What is the empirical evidence? What happens when this kingdom expands into an empire? Do the words “Jalianwala Bagh” ring any bells? Why is it that Indians were denied the very things that britishers could take for granted under English common law? Did the Czars in Russia care about the property rights of the jewry? (eg. The movie - fiddler on the roof). And, what about slavery? England grew because of recognition of property rights, agreed. But this recognition was incomplete. It didn’t include people of other races (and that includes you sauvik) or women. It is only with the individualist anarchists that the doctrine we are familiar with actually came into being.
I still believe in a vision which was articulated by you in the LSS seminars, that of cities which compete for talent in a truly global free market. This latest turn taken by you is quite inexplicable. I think you need a serious dose of Spooner and Rothbard to get back on track.
Sauvik, your analysis of English history ignores a crucial fact about England. Even since King John was forced to sign the Magna Carta at sword-point, England had an extremely powerful class of Anglo-French nobles who could and did challenge royal authority when it trampled on their rights. Traditions, such as “a man’s home is his castle” or the prohibition on marching troops through the City of London, come from the long-standing agreement to divide powers between the Crown and the nobles. This compact was not completely stable, particularly during the 17th century when clashes between Parliament (representing landed nobles) and the Crown resulted in a series of wars that ultimately established the supremacy (or sovereign power) of Parliament over the Crown. For instance, the Star Chamber, which existed for hundreds of years and had the power to overrule common-law decisions and enforce royal edict, was grossly abused by Charles I in the early 17th century. Parliament fought a war which resulted in Charles I being tried and beheaded for treason. Such a thing would have not been possible without an institution such as Parliament which could not only question royal authority but could back up its will with force. No King would voluntarily put his head on the chopping block out of respect for the rule of law! English Kings upheld the rule of law not because they were nice guys or took their jobs seriously but because they ran the risk of instability and revolution if they did not. To use an example from American history, President Andrew Jackson is quoted as saying after a Supreme Court ruling he disagreed with, “[Chief Justice] John Marshall has made his decision, now let him enforce it,” and subsequently ignored the decision (there’s no convincing record of him saying this, but he certainly believed it).
The point of all of this is that a free society governed by the rule of law needs institutions capable of restraining an out-of-control monarch of executive. Anarcho-capitalists see the competitive market as being the effective check on private protection agencies (I’m skeptical) while limited-government libertarians see an effective set of checks and balances and clear constitutional bounds as the key to a free society.
To bring this back to Nepal, I don’t claim to be an expert on the political situation there but I doubt there is an effective institutional check (either formal or informal) to royal power. We can all hope that the King will respect the rule of law (which would require restoring Parliament, for one) but he could just as easily turn out to be a Charles I or an Andrew Jackson who feels unbound by laws he disagrees with.
Incidentally, the claim that Parliaments inevitably trample on rights should not go unanswered. After Parliament’s victory in England following the last Civil War, Parliament passed the English Bill of Rights which listed traditional rights that all Protestant, property-owning male subjects possessed. The implication was that if William and Mary of Orange or their successors violated this, they could be forcibly removed from power and replaced. Subsequently, the scope of these rights expanded to other social classes, religions, and races through Acts of Parliament. Tradition and precedent could not justify such an expansion of rights (common law courts, for instance, did not accept the testimony of Jews because they could not swear on the Bible): only explicit legislation and the will to enforce it could. Hans Hermann Hoppe ignores the fact that modern Western democracies have done a much better, though obviously imperfect, job of enforcing rights for all citizens than monarchies.
1. about the king turning out to be a control freak: this is impossible unbder the common law, as each citizen’s property rights are protected AGAINST the king. the idea that the KING IS UNDER THE LAW - or the notion of sovereignty of the law, guarantees it. control freaks mushroom under parliamentary sovereignty especially because of SUBORDINATE LEGISLATION. for example: i have been a member of the delhi gymkhana club for over 20 years and we have had a separate bar for non-smokers (a small one) for over 10 years. thanks to the supreme court order and SUBORDINATE LEGISLATION (and government departments adding their own ‘rules’) the main bar has now been forced to have a no-smoking section. the rules apparently state that no bar can have a smoking section whose capacity exceeds 30! this is just an example of control freaks in our midst. under the common law, a club is the private property of its members and the king cannot interfere. a rational king will also not recruit millions of control freak bureaucrats as this will jeopardise the health of his treasury. democracy recruits bureaucrats en-masse (1 in every 50 indians is in government employ) in order to CO-OPT the citizenry into government.
2. coming to mark’s points: we must go back to henry II to understand how the common law evolved, long before the star chamber. henry II ruled almost 100 years BEFORE the magna carta. he recruited top judicial talent without paying a penny (they collected court fees: THE ENTERPRISE OF LAW!). the courts under henry II guaranteed freeholders of their property rights, but by the 14th century (edward II) even leaseholders had secure possession. the system of writs begun by henry (about 40 in his time) expanded to over 400 writs by the time of edward. all these redressal systems lie forgotten now. by the time of charles I religious politics played a major role. the subsequent ‘glorious revolution’ enthroned the “KING-in-PARLIAMENT”, but later doctrines of ‘parliamentary sovereignty’ (and the ‘flood of legislation’ that resulted therefrom) overturned all notions of sovereignty lying in the common law.
latter-day parliaments in the western world have completely evaded judicial review and are guilty of seriously undermining the basic property rights of their citizens. in india we see democratic despotism every day. but the same is true of the usa with regard to marijuana or even the enormous TAXATION (another violation of property rights) that western societies pay their states. my post was written hoping the nepal monarch can emulate henry II by cementing the common law. i do believe it is his only hope and the RATIONALITY OF A STATIONARY BANDIT should enable him to see that he can only secure his and his dynasty’s future thus. allowing the ‘political parties’ of nepal and the maoists to take control through the ballot will unleash droves of ROVING BANDITS (as seen throughout india).
PS: this is getting to be a good discussion. keep up the posts.
Sauvik,
1. Who makes newer laws which might be required, even after common law is embraced? Or do you think new laws just will not be required?
2. How is the King to be chosen?
3. How can you ensure fairness of the judiciary? A common law might be in place, but who will ensure it is not misused? Look at the courts in Pakistan after Musharraf took over.
4. You are saying if a King ensures defence, justice and public goods, Nepal will prosper. Replace “King” with “Parliament” and you get the same conclusion. It seems to me like you are saying that parliamentary democracy under common law is more likely to misuse power and control citizens than monarchy under common law. Is that so?
1. common law refers to all law that is NOT special, requiring special courts or tribunals. in england of old, therefore, it referred to all law that is NOT ecclesiastical, and matters covered by the law merchant. interestingly, the law merchant got incorporated into the common law. under the common law, looking at precedents, judges “make” law when any NEW matter comes up. as more and more decisions affect the matter, law is “found”. it is not made.
2. how are kings ‘chosen’? as in the case of nepal, there is a ‘royal family’ and primogeniture rules.
3. ‘fairness of the judiciary’ CANNOT be assured under the montesquieu ’separation of powers’ in a democracy, because the supreme court and high courts all are part of the government and hence biased in favour of it. if courts are part of the ‘enterprise of law’, as the old common law courts were, there is an incentive for the legal community to resolve disputes fairly and speedily, as they get to make the money. in enlgand, because of this, common law courts took all the business away from baronial and manorial courts. there were competing courts, and the best courts system won the day.
4. the post was with reference to nepal, where a king is already in place but parliament is not. hence, if the king perfroms his DUTIES under the ’system of natural liberty’ nepal will prosper even without democracy. if we wait for a parliament to be elected, it is quite likely that all kinds of kleptocrats will ateempt to get on the bandwagon.
It seems to me like you are saying that parliamentary democracy under common law is more likely to misuse power and control citizens than monarchy under common law. Is that so?
in response to dand: this is a truth we learnt from history, that liberty under natural law was more secure under monarchs (because the king was under the law) than under modern parliamentary democracy (because parliament is sovereign and hence above the law).
a good example of democratic despotism (without any judicial check on it) is the LEGISLATION that has been passed by the maharashtra sarkaar banning dance bars. this would be thrown out by any common law court on the grounds that these are matters of private property rights: - that is, the girls own their bodies and the dance bar owners have property rights over the bars. also, the paying customer has temporary property rights by virtue of buying a ticket for the show (if this is the case).