Thoughts on the Authority of Law

Precious little thought of law & economics is spent focusing on where the authority of law and legislation comes from.  Most economists just assume it to be given: Coase with his “bargaining in the shadow of the law” and even Ostrom with her Commons problem-solving.*  This post serves as a method to get some of my thoughts down.  This is hardly complete or refined.  Therefore, any questions, comments, helpful critiques (especially if sources are attached) are welcomed.

However, there are exceptions to my above criticism.  Three of the best examples of economists exploring this problem are James Buchanan in Limits of Liberty, Adam Smith in Lectures on Jurisprudence, and Frederic Bastiat in The Law.  All three tend to get at the root of the problem: the authority of law and legislation rests on its moral foundations.  As Buchanan writes (page 97-98, emphasis added):

Under what conditions are individuals most likely to adhere to the inherited rules of order, most likely to respect and to honor the assignment of individual rights in being?

This question can only be answered through an evaluation of the existing structure, as if it were the outcome of a current contract, or one that is continuously negotiated. Individuals must ask themselves how their own positions compare with those that they might have expected to secure in a renegotiated contractual settlement. If they accept that their defined positions fall within the limits, they are more likely to comply with existing rules, even in the acknowledged absence of any historical participation. 

Bastiat puts it more succinctly (page 111 of the Liberty Fund edition):

When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law. These two evils are of equal consequence, and it would be difficult for a person to choose between them.

In other words, people will respect the law and respect legislation to the extent they comply with morality.  When the law and morality are in conflict, then one has to lose respect for either one or the other.  This would suggest to me that the law’s authority comes from its alignment with morals.

We also tend to see the morality language in the way we discuss legislation.  Unfavorable legislation is often described as “unjust.”  The entire system of police (ie policy enforcement) is called the “justice system.”  These words smack of morality.  We expect legislation (ie policy) to comply with moral preconceptions.  When they do not, we are faced with the Bastiatian conundrum.

Where, then, do morals come from?  I contend, as does Adam Smith in Theory of Moral Sentiments, that morality comes from our interaction with one another (see, for example, Part III).  This is implied in the word “moral,” with its origins coming from the Latin word “mos,” or “custom.”  Morality deals with the rules of human interaction, either in a negative sense (mere justice) or a positive sense (ethics) (for a more in-depth discussion on this point, see Dan Klein’s paper on Smithian justice or Smith’s discussion in Part VII of TMS).  Therefore our sense of morality must come from interacting with one another.

If morality develops from our interactions with one another, and law is the set of rules developed to facilitate dealings, this suggests a tight connection between law and morality.  But how tight?  Can morality and law deviate?  I think the answer is “yes.”  Traditions and superstitions develop in law as a way to enforce and perpetuate morals (Dr Peter Leeson does a lot of interesting research in this field, as does Adam Smith in his Essay on Astronomy).  However, traditions and superstitions tend to be difficult to change when they have cultural inertia behind them (which is a good thing).  Even if there may be some scientific reason to change the transition and superstition, ie the law, it may be difficult to do precisely that (I am reminded of the line by Rick Sanchez in Rick and Morty: “Scientifically, traditions are a stupid thing, Morty!”).  The traditions/superstitions will change once the critical threshold of departure in morality from law occurs.

Turning to the question of incentive and punishment, if my above reasoning is correct, it’d explain why some legislation requires little enforcement/punishment but others require lots of punishment.  For example, a traffic ticket.  Many people complain about traffic tickets but still pay the fine.  And while there is always some violation of the limit (people going 70 in a 65), there are few major offenders.  Low fines are able to deter behavior because there is a strong moral presumption against speeding (ever been cut off in traffic?  How does one react?).  Conversely, something like drug prohibition requires heavy fines and penalties probably because there is a strong moral presumption against drug prohibition (especially in the case of marijuana).  When heavy punishment is required to enforce legislation, it may be a sign of a moral presumption against the legislation.**

What does all this mean?  I don’t know.  It may explain why some legislation/regulation is effective and others are not.  It may explain why development aid never accomplishes its goals.  It may explain, or suppliment, why optimal tariffs, taxation, and the like are impossible to calculate.  Lots of things to consider and feedback is appreciated.

*This comment is in no way a slight upon either economist.  I love and respect both Coase and Ostrom very much.  Their contributions to economic thought are extraordinarily valuable and their respective Nobel Prizes were well-deserved.

**Another possible reason is the natural desire for revenge/recompense from the violation.  For example, punishment of a murderer may be strong because of a large natural desire for revenge for the violation of justice.  However, this is a conversation for jurisprudence, which I will have to pick up at a different time.

The Confusion Around Shithole

Predictably, Trump made an undiplomatic description of certain people and countries and, just as predictably, people on the Left have objected to his comments.  And, just as predictably, Trump defenders have appeared with cries of “political correctness.”

However, the problem with Trump’s comments is not the profanity or disparaging of certain countries, as undiplomatic as they may be.  The problem is much older:

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society.

Given the context of Mr Trump’s comments, that he was questioning the wisdom of having immigrants from “shithole” countries, Mr Trump makes exactly the mistake Bastiat discusses: he confused people for the government.  The countries may, in fact, be shitholes (however one defines that), but the people aren’t necessarily so.  We are not our government; we are individuals.  And, as I have written elsewhere, the institutions under which we live matter a whole lot.

In their rush to criticize Trump, the Left has made similar errors.  They have focused on defences of the targeted nations or of blanket cries of “racism.”  They’ve ignored the individual aspect of immigration (no surprise given the Left’s overt infatuation with socialism).

Similarly, in their rush to defend Trump, many of his supporters miss the context and point of Trump’s comment.  They wonder why Trump can’t call a country a shithole, citing concerns about political correctness.  But they too make the mistake of confusing the government and the society.

In short, Trump, his defenders, and his detractors on the Left all show their socialist leanings, and subsequent fallacious thinking, with this flap over shithole and immigration.

Will Trump Oppose This Deal?

Toyota and Mazda announced today they are investing $1.6 billion in a new auto plant in Alabama.  The construction will bring some 4,000 jobs to the region.

However, since this plant is a foreign entity, the $1.6 billion will be counted toward the trade deficit.  In other words, the trade deficit will expand by $1.6 billion with this project.  This, of course, puts Trump and the mercantilists in his administration in a bind: they claim manufacturing is good and the trade deficit is bad, but here we see a clear case where the trade deficit is creating jobs (as it does anyway).

So, will Mr. Trump bite the bullet and argue this plant construction is “the worst trade deal in history” or will he admit his economic schemes are intellectually inconsistent?  Only time will tell…

Law Written By Experts Is No Law

In a discussion on jurisprudence and hate speech legislation on Facebook, commentator David Benson wrote:

[The arbitrary nature of defining hate speech] why I didn’t trust a novice like myself to come up with the wording. I DO, however, think this issue has gotten to the point where some steps need to be taken.

To understand the difficulty with this statement, we must first understand what, exactly, law’s purpose is.

The purpose of law is to govern human behavior.  This purpose appears to me to be so self-evident and to hardly require evidence.  However, I will explain further.  Any form of law, whether it be issues of justice (ie “don’t mess with other people’s stuff,”) or matters of ethics, seeks to govern human behavior: how we act in given situations, how we interact with each other, how we resolve conflicts, etc.  For example, there is law regarding behavior at a funeral: it is proper to cry or be sad/somber.  To laugh or be merry is generally considered inappropriate.  This is an example of an ethical law governing human behavior.

If the purpose of law is to govern human behavior, it follows that law should be simple.  Complex or complicated law cannot govern as effectively as simple law.  With simple law, it is easy to determine when violations happen, and more importantly, it is easy to determine how to behave.  If law is complicated, then such determinations are far more difficult to make.  And this matter is doubly important for matters of jurisprudence and legislation, where breaking the rule leads to a loss of liberty.  This is why the rules of mere justice, the fundamental arena of jurisprudence and legislation, are the most simple.

Which brings us back to David’s comment I highlighted at the beginning.  If legislation defining hate speech cannot be defined by novices, then it is destined to be bad legislation.  If it cannot be defined by novices, it cannot be understood by novices, and thus it cannot be practiced by novices.  This would leave a wide area of grey between what is punishable and what is not, determined by experts but not by novices.  And, since the vast majority of people are novices in matters of legislation and jurisprudence, such complicated law would naturally harm the vast majority of people, even if it exists for nominally virtuous reasons.

 

Punative Tariffs Are Manifestly Unjust

President Trump likes to call for tariffs to punish foreigners who sell goods to Americans cheaply.  Let’s assume, for the moment, that having American workers work fewer hours for the same standard of living is, indeed, bad; there is real injury caused by this action.  If the goal of a policy is to punish the guilty, tariffs are the exact opposite of what one should do.

As Adam Smith says (Theory of Moral Sentiments, Page 155):

That the innocent, though they may have some connexion or dependency upon the guilty (which, perhaps, they themselves cannot help), should not, upon that account, suffer or be punished for the guilty, is one of the plainest and most obvious rules of justice.

The people buying the goods/services offered cheaply are not the guilty ones.  The foreigners who are offering said products are.  Therefore, to punish buyers through tariffs (which, outside extremely strong assumptions, fall at least partially on buyers) is a violation of “one of the plainest and most obvious rules of justice.”

Protectionism is unjust; plain and simple.

Today’s Quote of the Day…

…comes from page 198 of the Liberty Fund edition of James Buchanan’s 1975 book The Limits of Liberty: Between Anarchy and Leviathan:

It is unrealistic to assume that elected officials who occupy executive and legislative positions of responsibility have no personal preferences about the overall size of the public sector, its sources of revenue, and, most important, the particular components of public outlays.  A person who is genuinely indifferent in all these respects would not be attracted to politics, either as a profession or an advocation.  Politicians are likely to be those persons who do have personal preferences about such matters and who are attracted to politics precisely because they think that, though politics, they can exercise some influence over collective outcomes.  Once this basic, if simple, point is recognized, it is easy to see that budgetary results will not fully reflect voters’ preferences, even of those who are members of the effective coalition that achieves victory for its own candidate or party.

This simple, if basic, point is one often forgotten in discussions of the political.  Politicians are assumed to either be guided by the Will of the People and The People just need to be educated on an issue, or politicians are guided by experts, and it’s just a matter of getting the right experts to the right ears, or politicians are influenced by dollars and donations, and it’s just a matter of limiting money in politics.  But none of these assumptions ascribe any agency to politicians.  In short, they forget politicians are people too, fashioned from the same clay as the rest of us.