Thursday, February 02, 2006

Mechanism Not Policy: response

Nick Szabo has written a response to my Mechanism Not Policy article. Here's my response to Nick.

I really enjoy when I get a good, hostile reading of my ideas by somebody with an axe to grind. First, because it stimulates my thinking a great deal, and second because such emotional, ideological responses invariably contain many errors whose debunking educates me.

Nick, you start out with a gross misreading: I didn't say "the law", I said "the Constitution". I stuck to one example, primarily because I wanted to make a point about interpretation.

As for common law evincing "mechanism, not policy", no. It's just historically not true. Bob Black's White Man's Ghost Dance provides lots of counterexamples. First, we wouldn't expect a distributed decision making system to be able to adhere to such a restriction. Second, decisions about the nature of contracts or property amount to policies. Third, common law does not set up its own mechanisms of judges and courts, the sovereign does (to the best of my knowledge: you may know better.)

I'll grant that the common law does provide mechanism for the people (as opposed to my example of providing mechanism for itself.) Of course, statute law often does that as well. For example, laws creating limited liability corporations (which I think I recall had to override common law.) These too are important modern inventions by common law countries, but not inventions of common law.

But common law (a common libertarian obsession) is a distraction from my point, that the US Constitution was primarily intended to define mechanism, not policy such as rights. Now that statement may be "absurd and awful" to you, Nick, with your heavy investment in ideology and received interpretation of law. But it's a fair historical hypothesis begging for an unbiased examination. So what examination do you give it besides crying "absurd and awful"?

Not much that I can see. Instead you unleash a torrent of unbacked and arguable (if not incorrect) assertions. For example, you write:

"In this case, the Founders (which for the Bill of Rights are the anti-Federalists, not generally the Federalists as Mike suggests) clearly had in their minds that the main purpose of the mechanisms was to protect individual rights..."

While the anti-Federalists won their Bill of Rights, it was written by arch Federalist Madison. And mechanism proponent, if I'm right. If anti-Federalists had written the Bill of Rights, we'd expect rather clear statements of rights not just against the federal government, but against everybody. Instead, we see extremely skimpy statement of rights, almost as if invoking the principle of least authority in rights. But exactly enough for mechanism purposes. I don't know if the anti-Federalists were snookered into thinking the rights were more generous, or if they were satisfied that they were adequate. But it's obvious that they don't resemble the Virginia Bill of Rights very much in ways typical of Madison, as I discussed.

You also say:

""Life" and "liberty" occur three times in the Constitution; "property" is protected in four different places. Mike's beloved welfare state, on the other hand, occurs nowhere in the Constitution. Much of the Constitution was intended to protect the mechanisms of the common law from the hubristic policymaking of legislatures and the arbitrary actions of government officials."

Far be it from me to snicker at the lame argument of counting uses of words without context, but you're really silly here. And if you want to say welfare state doesn't occur in the Constitution, well neither does common law. But I wouldn't expect such an anacronism, would you? If I'm right about mechanism, not policy, then there's no contradiction between the Constitution and the welfare state. Unlike, say, the Virginia Bill of Rights.

Now, if you're going to insist that the idea was to protect the common law from legislators, then I really have to wonder how the 5th Amendment came to permit deprivation of life, liberty, and property by due process of law. How do you read that as protecting the common law?

"The recent great strides of progress in human history, such as the Industrial Revolution, the Information Revolution, and the abolition of slavery, were propagated by common law countries."

Now that's just silly. Those were widespread events, taking place over many nations with many different legal systems. Slavery, for example, was abolished innumerable times in innumerable countries. And we were among the last, with our commonlaw protecting slavery to the end. And slavery was never abolished by common law: always by legislation or other centralized fiat. The industrial revolution occurred in many other non-commonlaw nations, such as Germany. And the Information Revolution has prospered in large part due to non-commonlaw nations such as Japan and Sweden.

I recommend that you re-read my essay, and put up some real objections.


D.R.M. said...

"I really enjoy when I get a good, hostile reading of my ideas by somebody with an axe to grind. First, because it stimulates my thinking a great deal, and second because such emotional, ideological responses invariably contain many errors whose debunking educates me."

Well, if you enjoy that, then you may enjoy this

John H. Morrison said...

Common law does appear in the Seventh Amendment of the Constitution. Also, the phrase "in law and equity" appearing in Article III suggests common law. Common Law and Equity were two parallel systems of courts that arose in England.