My Kind of Liberalism: Hayek with Kierkegaard, Tocqueville, Nietzsche, Weber, Arendt, and Foucault.

In a post of 30th July I discussed Rawlsekianism, that is the combination of Rawls and Hayek in a form of libertarianism or liberalism, which both allows for: the emergence of economic patters, and other forms of social pattern, which are not directed by the state; and the construction of principles of social welfare to guide the rules used in designing institutions.  The first aspect refers more to Hayek, the second more to Rawls, though the distinction is not absolute.  

Having mentioned Hayek, I must mention issues of power and design.  A rather standard critique of Hayek is that he denies the existence of central design in the better kinds of society, and that he is indifferent to the realities of power in the emergence of orders.  The first criticism is not a fair comment on Hayek, at al times, and I doubt is it ever a fair comment.  Certainly Hayek is sometimes very clear that he is not arguing for laissez-faire or the free market, in the most absolute way, as if a market could ever exist independently of humanly designed rules.  He is sometimes very clear that design and state action have a role.  Some commentators, particularly the more radical kind of libertarian, argue that Hayek sometimes dispenses with the need for design, or for a framework.  These commentators do not agree on where those parts of Hayek are, and I don’t see it myself.  I would just say that Hayek goes too far in the direction of a completely ‘natural’ and autonomous development of law.  The claim that Hayek ignores power is a bit more fair, since it is not Hayek’s major preoccupation.  However, Hayek is aware that power shapes orders.  He is arguing that detailed state intervention increases the biggest form of power and tends to favour particular non-state sources of power.  The more there are different kinds of order largely independent of the state, the else chance of any one power source becoming dominant there is.  

The Rawlsekian material is not completely my kind of thing, because it is concerned with questions of institutions and markets that are not at the centre of my own work; and because the political theory side of this is written in a Normative Theory/Analytic Philosophy mode which does not appeal to my more literary, historical and cultural interests.  Even reading Hayek, though he does not write in an Analytic mode, is not a favourite occupation since his political thought is a bit too dogmatic and and a bit restricted in examining its own presuppositions.  

Where do I go, to put Hayekian themes in a context suitable for my own work?  In part, I go back to the classical liberal texts that Hayek himself, and likeminded people, were drawing on: Locke, Montesquieu, Smith, Hume, Constant, Tocqueville, and Mill, are some of the best known.

I also look at German Idealism in Kant, Fichte andHegel, along with associated Enlightenment and Romantic texts on morality, law, politics and individuality.  What that leads into, for me, is the reading of Kierkegaard who was very much drawing on that kind of German material.  The interest does come so much from taking Kierkegaard as a liberal, as from what he has to say about the single individual (Enkelte) as the centre of aesthetics, ethics, religion and all thought about human society.  How the individual may seek meaning in the social order, how the individual may feel alienated from that order, the importance of subjective communication, the difficulty of establishing that communication, and so on.  

Unlike Kierkegaard, Tocqueville is generally recognised as a liberal (including a very high opinion from Hayek but little in the way of detailed examination).  There are reasons why he is sometimes said to differentiate from liberalism, but I’ll come back to that in relation to Weber.  Tocqueville offers a very historically and socially based account of liberal concepts, and offers a full account of what he finds negative and positive in the democratic tendencies of his time, which relates closely to what we find in Kierkegaard and in Nietzsche.  Tocqueville’s historical vision gives him the basis of some of his critical understanding, in which he tries to resist tendencies to homogeneity and mediocrity, through pride, pursuit of excellence, breadth of historical vision, the deep nature of individuality, and the cultivation of the better part of aristocratic attitudes. 

Nietzsche features heavily for me despite his broadsides against liberalism.  The detail of his argument is less anti-liberal than some of the rhetoric suggests, and the more anti-liberal comments relate to liberal concerns of that time with regard to cultural mediocrity, the expansion of the state, the under-estimation of aristocratic virtues, the need for antique virtues, and the centrality of the genuinely autonomous individual.  He also contributes great insights into power relations and power struggles in the origins of moral and political values, along with social institutions and the state.  

Max Weber, the great sociologist, moved from strong conservative-nationalism to a later involvement with liberalism in Germany, including the design of the Weimar Constitution.  Even in his more liberal phase, he was deeply concerned with the role of national pride, political power, social force and the charismatic leadership of those driven by political ambition, to establish the framework for a liberal society.  These aspects of Weber lead to him sometimes being described as not a normal liberal.  The same is said about Tocqueville for similar reasons.  However, these ‘illiberal’ aspects are more or less present in all writers recognised to be liberal, and those aspects are part of what liberalism is.  Like Tocqueville, Weber has a respect for, and a desire to cultivate, individual responsibility and distinctiveness, pride, excellence, and competition for various kinds of glory.  Like Tocqueville, he looks in politics for what will unify and underpin the aggregate of individual concerns.

Arendt provides a guide to how political understanding has evolved since antique times, and makes arguments for understanding political action as part of the individual quest for excellence and liberty.  She is aware of the individual, and the dangers to the individual from the modern state, but never sees the individual as just someone who has to be free of politics and collective action.  Individual capacities can only be pursued within the context of citizenship and political participation,  or at least living within a society where such activities are valued as the alternative to increasing state power and declining individual responsibility.

In Foucault, we see themes from Nietzsche and Weber (the latter not always sufficiently appreciated by ‘Foucauldians’) taken up through the limits of individuality.  Sometimes Foucault might seem to deny the value of individuality, but this is in the course of overcoming a limited understanding of individuality.  The individual has to be understood on the basis of the limits of experience, through encounters with power and with discourse.  Foucault’s later work shows his concern with the individual as self-creating, though not in the sense of an absolute detachment from psychological and social limits.  The strength of the individual in Foucault includes the capacity to experience the inner limits of reason and to act in the political world through free speaking.  No one can say that Foucault underestimates or ignores power.  Part of that understanding  of power is the understanding of the dangers of state activities and institutions, designed for ‘ideal’ socially concerned reasons.

Al of the above leads to an understanding of liberalism (in a libertarian limited government open market sense) which is republican, that is concerned with political action and participation as part of human liberty and flourishing, and in which all sources of power, of physical, psychological and social constraint are considered.  A conception in which the drive for democratic equality is appreciated, but so is the need for elites of some kind, and for the cultivation of excellence, rather than a conformist kind of community existence and equality.  

Amongst current writers, I find Samuel Flieschackeri particularly interesting, particularly his 1999 book, The Third Concept of Liberty.  Not that it is perfect from my point of view, since it dismisses Foucault and has a diminished view of the importance of politics.  His commitment to self-cutivation and the pursuit of excellence, the value of responsibility to self and others, under a limited state, and the search for a position between egalitarian liberalism and purist libertarianism  are all of interest.  I don’t share all Flesichacker’s conclusions, for example he is further towards egalitarian liberalism than I am, but his work is as close as anything I know of in recent literature to a model.  His understanding of liberty is social, historical, and cultural as is his whole understanding of ethical and political concepts.  

RSS Feeds and Safari: Another Option

You’ll have to go back to my last post to get the background to this.  Through Facebook, a friend has pointed out a good alternative to Vienna, Cappuccino, which is available through the Mac App Store for free.  It has a much better interface than Vienna, though Vienna is good compared with most feeder interfaces.  Cappuccino also has a full screen option, unlike Vienna.  It syncs with GoogleReader, so one form of back up is already there.  As I don’t have all my feeds on GoogleReader, I have to transfer about half from Vienna.  There is no option on Cappuccino for importing .opml files, which store RSS feeds and can be imported to and exported from many readers.  For this reason, I had to transfer a lot of feeds manually from Vienna to Cappuccino.  Cappuccino also has the advantage over Vienna that the number of unread items can be seen in the dock icon (which is more aesthetic than Vienna).  Another slight disadvantage is that there is no option to set it as the default RSS reader, therefore a simple click on an RSS feed in Safari will not result in the feed being saved by the reader, as in Vienna, presumably because it works as a GoogleReader extension.  However, there is a reasonably simple process of control clicking/right clicking on the link to an RSS feed, choosing to save the link, and then pasting the link into Cappuccino after clicking on  a ‘+’ icon.  

For me, Cappuccino is now the best option for an RSS reader, though I cannot guarantee it will suit everyone.  It appears to work with Mountain Lion, check the Cappuccino tumbir site.

RSS Feeds and Safari 6: Progress in the End.

I don’t often blog about tech, but I take some interest, particularly in Apple related matters, and while I’m  no techie I probably use my main computer more intensely, more variably and more continuously, with more awareness of basic tech issues, than the average user.  

This item is about the latest version of Safari, the native browser for  Mac computers.  It is also available for  Windows, but Apple appears to have stopped updating the Windows version, and it is less easy to find on the Apple website.  

As a regular reader of Apple related sites though my RSS feeds, I noticed early on that Apple was planning to disable RSS feeds on Safari 6, which was launched a few days ago.  I was not expecting this to be an issue before downloading Mountain Lion, the latest iteration of OS X (previously know as Mac OS X, and it is the operating system on a Mac), which was recently released, but which I won’t download until I’ve made some checks about compatibility with favourite third party apps.  Apple have released Safari 6 both for Mountain  Lion and its predecessor, Lion.  This has maybe saved me the bother of getting used to both Safari 6, and all the other features of Mountain Lion at the same time.

For those who know,and most people who use computers sadly don’t seem to know, RSS stands for Really Simple Syndication, and is a way in which feeds from websites and blogs can be aggregated in one place, and new items show up in that place, without the need to check sites individually and frequently.  Anyone who does a lot of browsing, and a has a large set of regular sites and blogs to visit, would benefit from using RSS.  Look carefully at sites and blogs for where you can click to get RSS feeds.

Safari used to have RSS feeds in the browser, and that was a convenient way to aggregate feeds, with the advantage of an elegant Apple interface.  Safari 6 has been designed so that clicking on an RSS feed takes the user to an RSS reader outside Safari.  If no default RSS feeder has been designated then some application is opened in what looks like a random way.  To stop this, download an RSS app.  I found the best solution was Vienna, which is a reader for Mac, and can be downloaded for free  I tried the Mac App store, and downloaded the top result from RSS readers, iReader (for free fortunately), but was disappointed.  It froze on me and  just would not work, even after deleting from my applications folder and downloading again.  There is nothing unreliable about my computer and I do not have these kind of problems otherwise.  NetNewsWire is a popular reader app from outside the Mac App Store, but I found it crashed.  Vienna does not have such a great interface as Apple’s own software, but it’s good enough, is easy to use and is very reliable.  

I was irritated with Apple for disabling RSS feeds in Safari, but I’ve found since using Vienna, that I do not need to quite and relaunch Safari.  I was doing this several times a day, which is not unusual for an intensive user ( have a at least 15 tabs open in three different windows at all times), since browsers consume more and more RAM (short term memory) over time and consequently slow down, possibly slowing down other applications, since all RAM may be taken in this way.  RSS feeds obviously have a big impact on RAM, and are better out of of the browser in a dedicated application.

There is a small but noticeable number of Mac users disappointed to find that Safari 6 has disabled RSS feeds, and some have gone back to Safari 5.  I agree that the loss of the Safari interface is a drawback, but the right app for feeds will benefit overall user experience and productivity.  Different solutions will work for different people, but Vienna does have some ardent fans amongst Mac users, and it looks really good to me.  

Rawls, Hayek and Libertarian Political Philosophy: The Rise of the Rawlsekians

Rawlsekian is a word that was first used, to the best of my knowledge, in the headline of a piece by Will Wilkinson for Cato@Liberty (part of the website of the libertarian foundation, Cato), ‘Is Rawlsekianism the Future?’, posted on 4th December 2006.  The item builds on an idea floated by Brink Lindsey (like Wilkinson now an ex-Cato employee) of ‘liberaltarianism’, that is an alliance between libertarians and liberals (as social democrats are known in the United States) rather than the more familiar alliance between libertarians and conservatives.  Hopes of a liberaltarian moment around Barack Obama’s election have now been obliterated, but the idea lives on, and is gaining influence, at the more philosophical and theoretical level, which is where Rawlsekianism enters the stage.

Rawlsekianism is one way of referring to the combination of the ideas of the political philosopher John Rawls with the ideas of the economist and political thinker Friedrich Hayek.  I say thinker rather than philosopher for Hayek, because though his work is very interesting philosophically, and touches on various areas of philosophy, he did not write about political ideas through the kind of very systematic, or at least thorough exploration, of principles and concepts, you would expect from a philosopher.  Rawls is most famous for his monumental  1971 book A Theory of Justice.  An early version of some of the arguments from that book can be found freely online in the paper ‘Justice as Fairness’.  Rawls was famously committed to the idea that the institutions of a society should be designed to promote first liberty, and then the maximum welfare of the poorest people in that society, which includes the ‘difference principle’ according to which income and wealth inequality can only be just, where they leave the poorest better off than in other institutional arrangements with less inequality. Rawls’ position is typically referred to as ‘egalitarian liberalism, because his argument is very weighted to a preference for equality, except where there are strong arguments for saying it is not in the interests of the poorest.  Nevertheless, A Theory of Justice is designed to put forward a set of criteria for evaluating different models with regard to economic outcomes, and does not explicitly presume any preference for a particular choice.

Hayek argues in his to biggest books, The Constitution of Liberty (1969) and Law, Legislation and Liberty (1973-1979) that institutions should promote individual liberty and open market economies.  Market economies are preferred for economic reasons and for reasons of liberty.  Freedom in the market place corresponds with individual liberty, in part, because long term economic growth can only come from individual responses to dispersed economic information, particularly prices.  No planning agency can capture that dispersed, subjective and changeable process of receiving information and reacting to it.  There is considerable scepticism about the possibility of planning economic outcomes, though Hayek does not reject all economic planning.  From his point of view, like all laws and state actions, it should be directed at the most general level.  One thing that Hayek certainly thinks goes beyond the capacity of any planner, is to aim at any particular distribution of income and property.  Furthermore, he thinks questions of the economic ranking of individuals should to a large degree be separated from theories of justified wealth, since inevitably luck and changeable context plays a large role in determining the economic situation of individuals.  Hayek’s views on economic knowledge can be found freely online in his 1945 paper ‘The Use of Knowledge in Society’.  His broader views can be found freely online in an abbreviated version of his 1944 book, The Road to Serfdom.  Hayek strongly criticises welfarism in the sense of widespread dependency on state benefits, and the growth of a large state apparatus to administer those benefits.

I’ve highlighted those points on which the divergence between Rawls and Hayek looks strongest.  However, we can reconcile them.  That does not mean that we should think Rawls and Hayek are saying the same thing, but we do find if we concentrate on underlying principles rather than the most radical sounding moments in their work, that it is not so  difficult to find unity.  Rawls’ has arguments for inequality, and largely assumes that a market economy will generate inequalities necessary to improve the condition of the poorest.  Hayek himself sometimes expresses the opinion that capitalism is justified by the benefits it brings the poorest and most marginal.  Raws does not have an ideal distribution pattern in any of his publications.  Hayek had a favourable reaction to Rawls in Law, Legislation and Liberty.  Though Hayek opposed ‘welfarism’, he did not oppose minimum income schemes and state promoted social insurance , he just thought these should be designed in ways that minimise dependency and expansion of the state.  Rawls’ arguments for equality are always based on the assumption that liberty comes first, and outranks equality as a principle, much to the horror of many of Rawls most  left-wing readers.  The well known political philosopher Raymond Geuss, condemns Rawls for betraying the revolutionary and egalitarian hopes of the 1960s.  The political philosopher, John Tomasi, argues that Hayek himself anticipated Rawls’ ‘difference principle’ (defined above).

Mention of Tomasi leads me to links to various forms of content about ‘Rawlsekianism’.  Three figures have really emerged as important in this, though not just through discussion of Rawls and Hayek, but also through a general concern to integrate libertarian individualistic concerns with other concerns, including those of public assistance to the poorest : John Tomasi, for example his 2012 book Free Market Fairness; Jerry Gaus, for example in his 2010 book, The Order of Public Reason; David Schmidtz, for example his 2006 book The Elements of Justice. Gaus and Schmidtz are both associated with the Department of Philosophy at the University of Arizona, and the The Freedom Center at the same university.  Tomasi whose permanent appointment at Brown University will be at the Center in the coming academic year.  So Arizona is the place for Rawlsekain action.

So there has been some egalitarian liberal engagement with this approach,and this is where I’ll start putting up a systematic set of links.  Elizabeth Anderson has discussed ‘Rawlsekianism’ from a more egalitarian approach than Schmidtz, Tomasi and Gaus in the inappropriately titled podcast, ‘Tom Paine and the Ironies of Social Democracy’, and a webcast with David Schmidtz on Philosophy TV.  Further information about Anderson and links to her work can be found at her University of Michigan, Department of Philosophy homepage.

For David Schmitdtz go to his website for information and links to his work.  For a Schmidtz discussion with Russ Roberts, in the Econtalk series, on Rawls and Nozick, click here.

For Gerald Gaus, and links to his work, go to his personal website.  A podcast introduction to his recent work can be be found at Kosmos, which is affiliated with the libertarian Institute for Humane Studies.

John Tomasi discusses his recent work in a Cato Book Forum event available in various formats.  He discusses his ideas with Glenn Loury on a Blogging Heads webcast available in various formats.  There is a discussion in the form of online posts of Tomasi’s understanding of libertarianism at CatoUnbound and of Free Market Fairness at the Bleeding Heart Libertarianism group blog, which includes contributions from Anderson, Will Wilkonson and the Rawlsian political philosopher Samuel Freeman.

Schmidtz’s discussion of Robert Nozick and Rawls leads us onto the topic of the direction of libertarian political philosophy.  It was a field largely defined by Nozick’s Anarchy, State and Utopia (1974), which is maybe the most influential work of normative theory (Analytic politicalş philosophy) after Rawls’ A Theory of Justice, though more because of the methods of argument then the substantive claims.  Nozick’s position is strictly monarchist, that is he regards the state as restricted to the provision of law and order, along with national security.  Schmidtz, Gaus and Tomasi, along with interlocutors like Anderson, have moved the centre of libertarian political philosophy to the position advocated by Hayek, in which a wish to minimise the role of the state, is combined with the belief that the state has a more than minarchist role in maintaining the income of the poorest and providing public goods beyond security from violence.

All this is very welcome as far as I am concerned, but not what I do in my own work.  I will try to address my own related, but different, work in a post soon.

 

T

The Future. Europe and Liberalism Beyond the Cliches: Follow Up Post 12

12. The nature of EU federalism is clearly shaped by German experience in the federal republic, which itself draws on Weimar federalism, which evolved out of the federal aspects of Bismarckian Germany, itself developing of of the proto-federal nature of the Holy Roman Empire of the German Nation,a nature which it had acquire by early modern times. We can also see precedents in the unification of Italy (Mazzini was an enthusiast for European Federation) and the federal nature of the Netherlands going back to the formation of the Dutch Republic, itself an important precedent for the American Republic.
13. The EU also draws on the precedent of the Concert of Nations that emerged from the Congress of Vienna and which led to intervention in national affairs by the major powers claiming to act on behalf of Europe. It can also look back to the transnational legal and political role of the Medieval Catholic Church, a legacy of the the Roman Empire which itself provides an important precedent for ideas of pan-European law and sovereignty.

 Continuing posts which expand on points in a post of 1st June, which argues that some are seeing issues around European integration through a one sided reading of Hayek.  The points above really refer to what I covered in follow up post 11, so that suggests and end to the series.  A few things to wrap up.

The European Union project draws on a history of federalism in Germany, going back to the point in the Middle Ages when the Holy Roman Empire centred on German lands lost substantial sovereignty, so that the Emperor was left with real power over hereditary Hapsburg lands inside and outside the Empire.  Authority became very limited to the multitude of states of very different size, and form of government, in the Empire outside the Hapsburg lands, but the Empire continued to be a recognisable political unit.  

The Holy Roman Empire became the Holy Roman Empire of the German Nation in the early sixteenth century, when religious divisions between Protestant and Catholic state confirmed the limited sovereignty of the Emperor.  The Empire lasted until the time of Napoleon, who abolished the Empire, gave the Hapsburgs the title of Emperor of Austria, and imposed a Rhineland confederation.  The end of the Napoleonic Wars led to the creation of a German Confederation until 1848, when a North German Confederation emerged.  Germany was unified without the Hapsburg lands in 1870, under Prussian hegemony, as a German Empire.  The Empire itself had a federal structure of a rather asymmetrical kind, in which Prussia continued as a kingdom taking up about half of the Empire.  The Weimar Republic of 1919 to 1933 had a federal structure of a more consistent kind than under the Empire, but Prussia became even more dominant, because of loss of German territory at the end of the First World War.  

The Federal Republic was established in 1949, and looks like a model of successful federalism.  The formation of the European Union can be considered an expansion of the idea of democracy and rights through dividing power between different regions of a state, as it appeared in the Federal Republic of Germany.  

European integration has reached a very difficult point with the Euro crisis.  I’m not making any predictions, but there is without doubt a possibility that the Euro currency will collapse, either through complete disintegration, or through the expulsion of those countries who have had problems maintaining the credibility of sovereign debt, and which have economies more handicapped by market rigidities, corrupt and inefficient state institutions, weak rule of law, and short term politics.  The European Union will continue to exist and will probably seek to relaunch the Euro project, even if the present Eurozone completely disintegrates.

A reformed, or relaunched, Euro currency will be embedded in a fiscal union, with Europe wide bonds, to finance pooled debt, bail out provisions,  and strict enforcement debt limits, along with economic and administrative reforms. On the political side, the unpopularity of the Commission in European public opinion, and the lack of public interest in the European Parliament, means that the intergovernmental aspect of the European Union, in the Council of Ministers, will continue to gain in importance, as it already has in the Lisbon Treaty.  The role of President of the European Council will be down played, if not completely abolished.  It is a failed attempt to add a Union element to the intergovernmental nature of the Council.  The Commission should really be abolished and replaced with a civil service clearly responsible to a politically convincing executive body.  That is a European government responsible to the European Parliament.  The phrase European government will draw horror from some quarters, but even after a Eurozone collapse, the European Union will have enough competences to make this a matter of labelling. A  government could be formed by  consensus between the political blocs in the Parliament, which should have more rights in initiating legislation, and controlling the legislative process.  There could also be a directly elected President, which might stimulate further interest in European politics.  More powers can be returned to national parliaments while strengthening European capacities to deal with core areas for any viable European government, such as the internal market, world trade negotiations, defence and diplomatic matters.  One area that should be regarded as a deep concern of the European Union, is complete passport union through the Schengen area.  All states should be in the Schengen agreement, there should be complete freedom of movement within the European Union, with no need for visas, and passports only for checking identity.  The U opt out of the Schengen agreement is the single most shameful moment in its history of European Union membership, negating what should be regard as a a very basic and un-revisable purpose of the EU: free movement across borders.  

A reformed European Union will need to accommodate both stricter enforcement of rules in the areas in which it has full competence, to avoid the nonsense of France and Germany early on breaking the Eurozone rules referring to deficit financing.  It also needs to accommodate joint action by member states which is not fully part of EU structures.  We are a very long way from Ireland, Austria or Finland giving up neutralism in foreign policy for participation in out of area armed actions, such as assistance to rebels against despotic governments in the north Africa and the Middle East.  France and Britain were able to co-operate on assistance to Libyan rebels, but this is not likely to be always possible for France and Britain, before even thinking about all 27 member states.  There is already some recognition for the idea that various forms of military co-operation can take place between member states using an EU framework, but not including all states.  This principle could apply to a reform Euro currency, or later version of that project if the Eurozone does collapse.  The Euro itself excluded countries which had negotiated an opt out, or were new members unready to meet the entry criteria.  More experimentation in co-operation  within the EU between a limited number of state, and more of an emphasis on opt in to new schemes, would be appropriate.  This could be an appropriate way to deal with infrastructure projects, environmental activities, educational exchange and co-operation, cross-border policing and so on.  

The mix should be very strict enforcement of agreed basics, emphasis on opt ins and flexible co-operation on the less basic areas of transnational concern, and a convincing political leadership for the Union, which is visibly connected with public opinion in Europe, rather than slipping through maximum integration through Commission directives and projects like the Euro which aim to foster political union, while pretending to be bases on a purely economic logic (if such a thing exists).  The current crisis has I hope brought that kind of strategy to an end, a strategy known as ‘institutionalisation’ based on Jean Monnet’s belief that political integration would follow on from politically uncontroversial technocratic economic cooperation.  The European public must be able to easily see where decisions are made and who to hold accountable.  There must also be a strong role for inter-governmentalism as it exists in the European Council and the Council of the European Union/Council of Ministers.  These two bodies should be merged for a start.  The existence of both is confusing and only adds to the opacity of the European Union.  The question arises of what relations a unified Council would have with meetings between heads of government, which have proved very important during the Euro crisis.  Those summits will be continue to be important, and will continue to be dominated by Germany for the foreseeable future.  This reality must exist in conjunction with a clearly defined role for the Council. That roe should most obviously senatorial, a house of revision and consideration, with regard to legislation largely originating in a chamber of legislative initiative, in this case the European Parliament.  The best model for a European government is the Federal Council in Switzerland, elected in a consensual cross-party way by the Federal Assembly.  On the Swiss model, the government council would also act as a collective head of state.  However, since creating a genuine European political space is a major issue, a directly elected President might work with that council. Another possibility for the European Council is that it might be elected by national parliaments, though perhaps that could be considered a matter for member states.  

A directly elected president is important because elections to the European Parliament are entirely national in practice even if MEPs belong to European political blocs.  There cannot be a political union without some element of the governmental structure that is connected with a unified European political decision of some kind.  The President could have power with regard to vetoes, chairing meetings of the governmental body, representing the European Union externally, directing the European civil service, co-ordinating institutions, and resolving conflicts between them.  Another possible way to create a European political will which is being promoted, is to have some part of the European Parliament filled by candidates on Europe wide lists, rather than standing for constituencies.  That seems a very partial gesture though, which is maybe more of a supplement to a directly elected president than an alternative.  

The above suggestions are not likely to be what happens in the future evolution of the EU, but I think represent a reasonable set of points with regard to what principles of reform will be necessary for improved, efficient, and legitimate EU institutions.   Continue reading

The History of Transnational Europe: Liberalism and Europe Beyond the Clichés: Follow Up Post 11.

The politicians of European nations who created the European Union are no less part of tradition than the politicians who created the American Republic and its Constitution. The idea of the European Union, and its political basis in the Franco-German relationship has evident roots in the 9th Century Carolingian Empire, and even earlier in the Frankish monarchy.

11 out of a 13 post series expanding on a post of 1st June where I made 13 points in criticism of the clichéd used of Hayek’s style of liberalism to make sweeping criticisms of the European Union project.  Go to my original post to link the item to which I was reacting.

The criticism of the European Union is often in comparison with the United States, which is held up as some more natural political union.  The 13 colonies that formed the original union certainly had much in common, as far as the white population was concerned, with regard to shared origins in Britain, so that they were mostly Protestant English speakers, who could trace their laws and forms of government back in British history.  As I have argued in earlier posts, their was less unity and less continuity than the EU bashing comparative account suggests.  This kind of account ends up writing all political history and struggles out of the record.

I don’t have any story of the perfect continuity and deep primeval unity of Europe, but I d have a lot to say about European identity, transnational sovereignty, and inter-state structures throughout European history.

We can go back to the Celts, who clearly did not have a pan-European state, or a sense of European identity.  Nevertheless, they existed in communities across the continental, which a shared if variable linguistic, religious and social characteristics.  Even before the Celts there was cross European traffic in goods, people and culture.  Their languages survive in the form of communities speaking descendendent languages in Brittany, Wales, Scotland and Ireland.  Attempts are underway to revive Celtic languages in Cornwall (south-west peninsula of England) and the Isle of Man (Crown territory outside the United Kingdom, but located off the coast of north western England).  Celtic legends and the first layer of precedents for the King Arthur story, and for the tales of the Grail Quest (originally concerned with a Celtic cauldron) which merge through the story of Pervcival/Parsifal.  The Celts, particularly Gauls, were primary enemies of the Ancient Romans and were also known to the Ancient Greeks.  The Romans conquered Celtic states in France, Enland and Wales, thereby absorbing some part of the Celtic world.

The Celts have led us to the Romans who formed a state incorporating southern Europe (including Cyprus and what is now Turkey), large parts of central Europe, and northwestern Europe stretching up through France into Britain and the low countries.  A common system of law and administration, and a common Latinate culture of the elite prevailed across the whole of this territory from the first to fifth centuries.  The creation of  a second Rome at Constantinople  (Istanbul), with an eastern Emperor, who tended to be senior to the Emperor in Rome (or Milan or Ravenna), means that Europe from eastern Anatolia to the north west coast of England was  at least nominally ruled from what is now Istanbul, from the fourth century into the early firth century, when Roman authority started to break down in the west.

The Roman Empire in the east lasted, as Byzantium (officially Romania), until 1453.  The Ottoman Empire ruled over roughly the same lands as the Byzantines, and the Sultans even used the title of Kaiser-i Rum (Emperor of Rome) for  a while.  The Byzantine Empire even in its weakening, and disappearance, created a form of Christianity (Orthodoxy), along with associated ideas about the state and sovereignty, in the empires of Bulgaria, Serbia and Russia, and all states influenced by those examples.

In the Medieval west, claims to transnational pan-European political sovereignty was back at the end of the 7th century with the Franco-German monarch Charlemagne, who crowned Emperor of the Romans in 800.  His authority extended across northern Spain, France, Germany, the low countries, northern Italy, and central Europe moving into the north Balkans.  His influence stretched well beyond those lands, creating a model of  monarchy, and attracting advisers like Alcuin of York.  Charlemagne’s rule was preceded by Frankish kings going back to Clovis who claimed a kind of Roman consular legitimacy, so we see that the Roman thread in Europe is a constant.  Charlemagne’s empire fragmented but still left a core in Germany, the low countries, and northern Italy which produced figures of European importance like the Hohenstaufen Friedrichs in the 12th and 13th centuries.  It was the era of crusades, a very ugly phenomenon, but a cross European phenomenon, uniting fanatics, power grabbers and their victims across the continent.  Major participants in the crusades included Robert Guiscard, a Norman prince form southern Italy.  That is the Normans who conquered England from Normandy under a Duke descended fromViking conquerors, Vikings who were active across Europe as founders of Dublin in Ireland and originators of the Russian state.

In the Medieval west, Christian nations were also unified by the transnational authority of the Catholic Church, under the Pope who took one of the titles used by the Roman Emperors, Pontifex Maximus.  There was an idea of Christendom which extended to the Orthodox east, and Monophysite ‘Eastern’ Christianity, but which was focused on a Catholic Commonwealth, in which Church law operated across boundaries between secular princedoms and republics.  Church concern with law led to the revival of Roman law in the Medieval universities, with huge impact on ideas of law, politics,state and sovereignty.  Part of that impact was the rise of the idea of the undivided sovereignty of secular states.  That intellectual development also fed into the Reformation which fragmented ‘western’ Christianity between the Catholic Church and various Protestant churches.  Nevertheless, Europe did not disappear.  Byzantine scholars fleeing from the Ottomans brought renewed knowledge of Greek antiquity to the west, in a complex process which also included the work of translators and philosophers in the Muslim world.  Out of this, and many other developments, we have the European phenomenon of Renaissance, which joins the Reformation and Counter-Reformation (or Catholic Reformation) as pan-European movements.  The fragmentation itself was part of an intensifying European struggle.

The European struggle reached a long period of intense violence in the Thirty Years War of 1618 t0 1648, which brought European states together and confirmed their entanglement, though in the most negative way.  That period ended with the Treaty of Westphalia, generally understood as the highpoint of the doctrine of state sovereignty in which states can do whatever they choose within their own territory.  However, we should note the complications around this.  The Treaty of Westphalia left in place a Holy Roman Empire of the German Nation, descended from Charlemagne’s empire, in which sovereignty was very ambiguous.  The Emperor was normally the ruler of the Habsburg lands in and around Austria.  However, the Emperor only had clear administrative and political power in those lands, much of which were outside the Empire, and not over most of Germany, which was divided into a extraordinary complex mass of kingdoms, principalities, duchies, margravates, free cities, Bishoprics, abbeys, and lands of knights of the Empire, who accepted some very limited kind of last resort sovereignty from the Emperors.  We can see the origins of European federalism in that peculiar Imperial confederacy, which lasted until the time of Napoleon Bonaparte.  Napoleon represents another reappearance of the neo-Roman dream of pan-European sovereignty, in a short lived, violent and despotic way.  In any case the Promethean figure of Napoleon transforming Europe and the world from a start in live as a Corsican aristocrat inspired heroic individualism in   Stendhal, Nietzsche and others, and maintained the idea that Europe is more than a geographical expression.  The fall of Napoleon confirmed that Europe has always existed as a political entity, in the Concert of Nations that emerged from the peace negotiations  at the Congress of Vienna.  The political structure of the Concert was loose, but was real enough to justify intervention in southern Italy and the Balkans against Bourbon and Ottoman rulers who were believed to have failed to match the most civilised values in their rule.  There was a growth of nationalism at this time, but by no means in opposition to European union.  The great leader of Italian nationalism, Giuseppe Mazzini was also an enthusiast for a federal Europe.

The Vienna Congress system, and on many accounts the Westphalian European state system ended in the First World War, which terminated 4 empires (German-Hohenzollern, Austrian-Habsburg, Russian-Romanov and Ottoman), and brought totalitarianism into Europe.  The Paris Peace Treaties represent and attempt to internationalise European  national borders, and the rights of the citizens within those borders.  Since Europe exploded again 20 years later, that attempt was evidently not too successful.  It was the beginning of a major American role in stabilising Europe, since President Woodrow Wilson paid the leading role in formulating the supposed principles of the Paris Peace Treaties.  The Second World War ended with a deeper Americanisation of Europe, Marshall Aid to maintain living standards in the countries of the western camp, including Turkey.  On the other hand Europe became more organised as a consciously political area than ever before with the Council of Europe to promote human rights, and the European Union to promote all forms of cooperation.  Whatever happens to the Euro, there is no going back from the way that Europe has recognised itself as a polity, and as more than a geographical expression.  The experience of cross European co-operation and empire, the experience of a federal Germany/Holy Roman Empire from the late Middle Ages onward, the experience of transnational organisation in parts of Europe like the Hanseatic League for the Baltic Sea region, in the late medieval and early modern periods, the alliances of Greek states in ancient history, then the experience of federalism and confederalism in Switzerland and  in the Netherlands from the 16th to the late 18th centuries, have all flowed into the European Union, amongst all the other many ways in Europe, and European nations have co-operated and shared sovereignty.

The difficulty in grounding the European Union in European history  is not the lack of precedents but the abundance of precedents which defy summary.  The extent of the European Union project does not have any exact precedent, but it builds on many precedents to work out a new form of government for the continent.  Such attempts are part of history just as much as ‘spontaneous orders’ and historical tradition, neither of which has ever existed in pure form.

Legal Innovation. Liberalism and Europe: Beyond the Clichés. Follow up post 10

If these bits of Hayek are going to be trotted out, again, it would be instructive to at least have some consideration of how compatible his very traditionalist views about law are with his views about economic and social innovation

 

Number 10 in a series of 13 posts, expanding on points I made in a post of 1st June, which was a reaction to the thoughtless use of bits of Hayek, without much consideration for context, in order to dismiss the European Union.

Part of that argument I am criticising is the appeal to Hayek’s understanding of law.  When Hayek discusses law in Constitution of Liberty, and Law, Legislation and Liberty, he advocates that law be understood as very continuous and traditional building on widely shared assumptions in a given society about what is right and what is wrong, refining them through the work of judges in applying laws to particular cases.  This element of Hayek, sometimes goes in the direction of ‘nomocracy’, which could be taken to mean simply rule of law, but what we are really talking about is the idea that judicial institutions should take over some significant part of what governments and legislative bodies do.  So Hayek’s vision of law does not welcome rapid innovation, or the value of conflicting views. 

WE might think there is some tension with the way that Hayek understands the economy, which is that there is constant change through the interaction of the different and variable preferences that individuals have.  Famously, Hayek argues that the price mechanism, which reflects those constant changes and variations, is the best way in which producers can understand what to produce and consumers can understand the scarcity of products, and information can circulate about supply and demand.  Criticisms of Hayek which suggest that he is only thinning of the price mechanism as the source of information in the economy are missing the point.  The price mechanism is just the most obvious way in which tacit knowledge, knowledge that is not formulated as fully conscious statements, that şs based on experience, learned behaviours, and shared patterns of action can be brought about and coordinated.  A Hayekian approach does not exclude other ways in which knowledge is created from the incomprehensibility of masses of changing preferences.  Law is one example, because rules gradually adopted by society about behaviour are made clear to everyone through the existence of laws, and the punishment of those who break laws.  

If law is backward looking and changes slowly, while prices change quickly and are concerned with anticipating the future, because they refer to expectations about demand and future use, we could ask how far the two views are compatible.  One part of what Hayek is saying is that institutional frameworks are necessary for there to be economic exchange.  In that sense, laws and other aspects of institutional rules and design, are not going to change as quickly as market prices.  Nevertheless, innovation and changing conditions in the economy has an effect on institutions and rules, which must have some feedback processes, or they will be become a drag on new patterns of coordination.  Some tension is necessary, but if we emphasise too strongly the traditionalist nomocratic aspects of Hayek’s view of law then we will not understand now law law should change.  The anachronistic look of intellectual property law, which  is currently leading to endless legal cases between companies, particularly tech countries, and is slowing down legal ways of making music, TV, cinema, books act available as files to download online is one example of hıw law may have difficulty keeping up with change, and therefore stifles innovation.

The case I am criticising tends to favour the European Union unfavourably with the United States and European nations with regard to traditionalist law.  However, law has changed a lot in the United States. The Constitution has remained in place almost intact since the 1780s, but its interpretation  has changed radically, is constantly debated in quite far reaching ways, and even ‘Originalists’ who think we should stick to the ‘Original’ meaning allow for a şlot of constructions which are not in the Constitution, such as abortion based on a way of thinking about privacy not present in the text of constitution.  The rapidly innovating natures of capitalist economies itself demands legal innovation, while still requiring some stability of framework.  The European nations had been through all manner of changes in law, constitution, borders, social realities and so on before the European Union was instituted.  The European Union itself, and other aspects of the European order, such as the Council of Europe’s Convention on Human Rights, are themselves developed from earlier European laws, and the institutional arrangements within which they have been embedded. The changes involved are no more radical than those of the American Revolution, despite bizarre attempts to make the European Union the equivalent of the Jacobin Terror in the French Revolution, by way of comparison with the violence of the American War of Independence (violence generally not mentioned in those kinds of discussion, weakening their basis even further).