Cake: on the having and eating of it

Hi there, liberal arbitrary-use-of-authority fans!
Exactly what is it about the last -10- -25- -50- 200 years of history is it that convinces you that those in authority give a shit about redistribution?
If robbing the rich appeals to you, become an anarchist instead.

“Rob, I think you’ll find that very many people subscribe to a conception of the rule of law such that a government passing a law expropriating non-criminally acquired property without compensation would be a violation of the rule of law.”

Well, yes, it would be in certain circumstances in the UK. Because the UK has signed international treaties saying that such a thing would be illegal.

In the US it’s unconstitutional. It would be a “taking”.

Rule-of-law != law-never-changes.

The legislators may change laws in a manner consistent with the law governing the creation of new laws.

The weakness, imho, of your last post is the extent to which you rely on legislative intent and purpose in enabling other, non-legislative parts of government to expand the law as they may see fit. Legislative intent is a murky concept at best. The intentions and purposes of hundreds of elected politicians in voting for a law rarely are coherent.

And for another branch of government, deciding which intention or purpose to ascribe to the laws pass by the legislator can become an exercise in law-making itself, if that branch is unbound by the actual words that were actually voted upon and passed by the legislature.

I don’t see how your democratically accountable, rule-expanding enforcers are an improvement over democratically accountable, rule-making legislators. The latter, at least, has the feature of separating the rule-making from the rule-applying functions.

I think the rich and the poor understand alike that the rules and rule of law do not really protect them. You don’t hire a floor of expensive tax lawyers as a gesture of confidence in the system, although you will claim otherwise.

Chris, your argument is that it is essentially impossible to formulate a system of rules for rapid redistribution. Even a set of rules that will lead to some redistribution over the course of 5 generations will most likely be stopped by the residual power of the 1%.

But if we throw away the rules, redistribution is just an edict away!

So… how come it is impossible for liberals to put in place rules that will allow for more rapid redistribution, but we can expect unconstrained state power to be in the hands of liberals?

Rob, I think you’ll find that very many people subscribe to a conception of the rule of law such that a government passing a law expropriating non-criminally acquired property without compensation would be a violation of the rule of law.

Those people would be wrong. There’s nothing about a preference for the ‘rule-of-law’ that prevents the imposition of wealth taxes, luxury consumption taxes, or other means of redistributing wealth and/or property.

Indeed, the whole OP as you have written it only works if you ignore the taxation and redistribution functions of the modern law-based state. Which is clearly a bit mad – so what’s the point?

The ruling ideas may come from the ruling class, but those ideas, be they economic, political, social, or moral are protected and revered by the courtier and aspirational class.
Of course liberalism and Bourgeois democracy serve Capital.

I’m not entirely sure on this, but I believe at least parts of the Bush tax cuts were ex post, applying to the current year’s taxes when the bills were signed. I’m wondering if this is a rule of law violation–the system of rules wasn’t knowable ex ante; citizens couldn’t order their choices in accordance with it.

For me, the model of how this sort of thing might be done legitimately is Labour’s 1997 “Windfall Tax” http://en.wikipedia.org/wiki/Windfall_Tax_(United_Kingdom)
which I had no problems with at all.

Isn’t the point that an absolutist adherence to the ROL is simply morally unattractive, because relatively minor deviations from the ROL may be massively outweighed by the moral good secured by those deviations. As Raz said long ago “sacrificing too many social goals on the altar of the rule of law may make law barren and empty”. And if one is a 1%er living in a plutocracy and accumulating wealth according to highly unjust rules, one might expect that property tax might be introduced in the future.

If we look to some of the classic debates on this in legal philosophy, (Hart-Fuller 1958) we could talk about retrospective punishment of actions that were morally abhorrent but legal in the Nazi regime, which sharpens the point that sometimes people can play by the rules and not get much sympathy when their actions later have a different set of rules applied to them. The same can be said for men who found that common law judges had the power to alter the rule that allowed them to legally rape their wives.

Nope. Because taxes that are known about in advance, thereby permitting citizens to order their choices in accordance with them (choosing to work at a given rate of income tax, consume luxuries subject to a consumption tax) are not violations of the RoL.

Well if your objection to the status quo is (as I think it is) that vast accumulations of wealth lead to the accumulation of vast amounts of power (a concern I share) then you have to concede that said wealth has to be used in some manner to exercise power. You then tax the use. You can create very large scale redistribution by heavily and thoroughly taxing certain kinds of use (capital gains for instance) or simply large concentrations of wealth through stamp duties, sur-taxes and so forth. You can prevent people by moving money out of the country with capital controls. And you can announce this all at 5PM on Friday, say its going into effect at 12.01AM on Saturday and people won’t be able to do a thing about it.

Your suggestion that the wealthy will ‘Go Galt’ in response to some of these measures does not merit comment.

Yes, Nick, everything depends on whether the moral value created by infringement outweighs (even if not massively) the moral value of not infringing the ROL. All things considered, including how to deal with uncertainties of effects/incentives/etc. And this analysis is complex.

There were some more complicated/interesting examples in Nazi Germany, but I take your point that often the Nazi’s simply ruled outside of law, perhaps even from a legal positivist perspective, and so people could not even say that law justified their actions at the time.

Bill Scheuerman has written a lot about how the powerful get special ROL-infringing treatment in domestic and international law, and has argued that the left should take the ROL more seriously for this reason.

Can I have a reverse ad Stalinum argument?
Suppose I very much like the idea of a state that not only actively redistribute, but also directly runs a big part of the economy, statalizing stuff instead than privatizing it.
However I don’t want this to become an evil dictatorship. The way to avoid the evil dictatorship stuff is to instate some “freedom from the state” rights, such as the right of free speech, the right to not be discriminared in employment for political reasons etc.
All those rights require as a prerequisite that bureaucrats and prosecutors are bound to a strict interpretation of the law, that is the opposite of your arargumentation gument.

29: No the rich hire the lawyers (and politicians) in order to ignore, use and abuse the law in order to keep tour money. The “system” unless you want to include the extra-legal or some discursive rather than objective sense of law, neither protects or gets in the way of those with power and wealth. The law is something they use, never serve.

I read yesterday that the IRS simply doe not bother auditing billionaires. It costs far too much time and money for the marginal gains.

There’s a country of interest to a few commenters here with its own extreme rule of law behaviour recently. That would be Ireland — deciding by itself in September 2008 (and not at the behest of the ECB as later mythology would have it) that senior unsecured bondholders whose money was already long since sunk into insolvent banks must get paid back no matter what.

Excellent on rule of law grounds. Disastrous for incentives, since the obvious unsustainability of it all scared off would-be new lenders, precisely the people who could have been attracted at the expense of the legacy creditors. And the distributional consequences were big banks and investment funds getting their money, paid for by public spending cuts.

Steve Randy Waldman has belatedly discovered Michal Kalecki, and has a very interesting post on redistribution and the quite rational incentives for the rich to maximize their wealth and power at the expense of everyone else. He links to Peter Frase’s “Four Futures” post over at Jacobin.

I suppose that’s enough from me.

“Uncompensated expropriation of the property of existing living persons (or corporations for that matter) clearly isn’t, so I think that rules out wealth taxes.”

Property taxes are wealth taxes, i.e. they are assessed on the value of a house or other property, not on its income flow. That’s clearly permissible and within the rule of law, right? Raising property taxes, or making property taxes progressive, would help redistribution.

In any case, I don’t agree with the premise that wealth taxes are per se against the rule of law. That’s a pretty bizarre use of “rule of law” in my eyes. France has a wealth tax, and it went through all the appropriate legal hurdles. While a French-like wealth tax would be unconstitutional in the U.S., I think, a Constitutional Amendment would make it legal and thus surely it’s within the “rule of law.”

“it isn’t socially and politically possible to effect a radical redistribution away from the 1% in a reasonable timescale in a manner compatible with the Hayekian conceptions of the rule of law that many Rawlsian appear to endorse”

I’m not sure why you add everything after “in a manner.” I don’t think it’s socially or politically possible [in the U.S.] to effect a radical redistribution away from the 1% full stop.

very many people subscribe to a conception of the rule of law such that a government passing a law expropriating non-criminally acquired property without compensation would be a violation of the rule of law

You’ve formulated a rule against uncompensated takings so broadly as to rule out taxation. Very few people think the government can’t legitimately tax. There may be extreme cases in which distinguishing taxes from takings requires close reasoning, but ordinarily, it’s fairly easy to tell the diference.

“Why? A tax is not a taking, that’s been established for centuries.”

The U.S. needed an amendment for an income tax. Surely the Supreme Court would not let a wealth tax pass unless an amendment specifically allowed it.

Shorter christian_h @49 – ‘unfortunately justice demands that some unspecified abstract people who aren’t me or people I know must be arbitrarily murdered. I will pretend to be upset about this’

Existing rules of the game hold that tax rates can be changed periodically. There’s nothing that undermines the integrity of our institutions about changing tax rates.

(There’s really few things as impressive as the liberal’s ability to be self-righteous while their favourite liberal states are murdering, maiming, enslaving and generally f****g over people around the world.)

I think those people arguing that an arbitrary level of redistribution can be achieved through RoL-compatible taxes might ask themselves if the rich people to be redistributed from would agree. The phrase “confiscatory taxation” exists, so somebody thinks it’s a thing.

@christian_h

Congrats – you’ve successfully identified a typographical error. My criticism of your glib declaration that “Some killing of resisters among the rich may be included in this” is obviously invalid as a result.

And while it’s always nice to be told what my opinions on various states are (FWIW – I’m actually not a fan of US or UK foreign policy in both its economic or military variants) I’m not sure I’m quite ready to accept accusations of self-righteousness from someone advocating the ‘elimination’ of social classes, given that for professional reasons, a large number of my friends are from former Soviet states – that is members of their family within living memory actually experienced the policies you seem to be endorsing. Beyond the initial brutality of having family members slaughtered for the crime of owning a pig or belonging to the professional classes, there was the general stigma of being related a vrag naroda limiting professional ambitions and doing all manner of psychological harm not only to the children, but grand children and even great grand children, of the men and women who were tortured and shot due to the whims of those who think like you.

As a result, I tend to find the expression of such sentiments deeply unsettling and I have about as much respect for the Internet International as I do for their neo-conservative Keyboard Kommando brethren. You both talk so airily about the sad necessity of murder in such a way that the rational reader can’t help but question your motives.

I think the rich and the poor understand alike that the rules and rule of law do not really protect them.

I daresay that people living in places without the rule of law, which I’m guessing is not you, might venture to disagree.

“all those people who got their houses repossessed when the economy went bad didn’t see that coming”

You have got to be kidding me here! How many of those people took out mortgages based on unrealistic expectations (on their own part!) that they could pay back a zero money down, interest only, variable rate mortgage. Give me a break with this machinery of capitalism oiled by the blood of the workers bit. If you want to give everything away to charity, go right ahead, but stay away from me and mine thank you very much.

Chris Bertram on August 3, 2012

“Hi there liberal rule-of-law fetishists!”

Chris, pulling lame jokes to cover up for a dumb idea does not make you or your idea sound smarter.

This probably belongs on the earlier thread but on the subject of taxes and politics:

http://taxprof.typepad.com/taxprof_blog/2012/07/argentine-president-.html

If you want to publicly criticize Argentina’s government, make sure all your tax filings are in order.

That was the thinly veiled message President Cristina Fernández de Kirchner sent Wednesday near the end of a speech broadcast on all national television and radio stations. Reiterating her standard criticism that media “operations” are depressing Argentinians with gloom-and-doom stories, she derided an article published last Sunday. … In the story, the owner of a real-estate agency, one of its directors and an employee were quoted complaining that recent government measures essentially blocking the sale of foreign currency to citizens had paralyzed their business.

Kirchner then dropped this bit of information: the firm in question hasn’t filed taxes since 2007 and neither has the director quoted in the story, whom she named.

How did she know? She had called up the head of the tax agency to ask, and this, too, she openly revealed on Wednesday’s broadcast. … [B]y saying that she had called the taxman out of supposed concern for the real-estate agency, she unabashedly established cause and effect: you criticize me; I punish you.

Perhaps not quite the power we’d like to see politicians have?

Mark @28
Scheuerman has written a lot about how the powerful get special ROL-infringing treatment in domestic and international law, and has argued that the left should take the ROL more seriously for this reason.

I’m interested in a cite here, if you have it. thanks.

the reason to let the wealthy keep their gelt whether from their own entrepreneurial efforts or those of previous generations is that it tells would be entrepreneurs that we might well let them keep any that they make.

I somehow suspect that the obvious negative socio-economic effects that come about due to large concentrations of inherited wealth would be more damaging to the entrepreneurial spirit than a mild “death tax”.

Maybe I’m missing something here. It might be against the rule of law to expropriate mansions, seize bank accounts, and authorize the howling mob to loot Park Avenue penthouses. But isn’t any redistribution going to happen through changes in the tax system?

I’m a middle class Canadian. I pay income taxes, property taxes on my house, and sales taxes. The rates can be and are changed by my democratically elected government all the time.

So I don’t see how it can be outside of the rule of law to institute, say, a 90 percent tax on all income above $1 million, or a property tax of 90 percent on all property over $2 million, or a graduated sales tax on big ticket items, or a big estate tax, etc. It’s just a matter of changing the rates. Even if we institute new taxes, so what? New taxes are nothing new.

Chris Bertram’s argument would seem to be compatible with an argument that high levels of inequality are better for most people (who’s going to pay for the art now that nobody’s building cathedrals anymore? why can’t we just have liberal-minded rich people who will do good things for the poor?), so redistribution should go in a somewhat different direction, in order to achieve the accordingly somewhat different results.

But of course everyone who’s been reading CT for a while knew this already.

And this being the Internet, there’s the ever-looming issue of IP law lurking behind any question involving property rights. Like land, there is a potential disconnect between use and ownership. Unlike land, historically, IP has been widely dispersed and decentralized, both in use and in ownership. Regarding the OP’s implications for current debates in IP reform, I am not sure which “redistribution” scheme the plurality of readers would actualyl have in mind.

There’s also the kulak thing, but nobody likes kulaks anyway.

@bob mcmanus – Ahhh, now we’re getting somewhere. Funnily enough as a self-identified liberal, I’m quite happy with the threat or use of social disorder as a negotiating tool. I might call it ‘civil disobedience’ but that’s splitting hairs. I also think that it can be used in different ways – lets call them positive-intentional (‘we’ll protest Vodafone and find other means of disrupting its business if it continues to avoid tax’) and negative-consequentialist (‘if the government continues to pursue policies that drastically increase inequality, riots are the inevitable result.’) I would argue both are extremely different from a policy of ‘killing the rich and taking their stuff.’

I also don’t think this is incompatible with the ‘Rule of Law’ since most theorists in this area (to my knowledge) accept that broad-based social acceptance of the ‘rightness’ of certain laws is a necessary condition for both their implementation and legitimacy. Mass civil disobedience demonstrates, quite forcefully, that this consent has not been given.

However the same tradition of protest has often relied on two key factors – a) accepting legal sanction for these acts, if only to show that said sanctions are unjust b) operating in a manner that, while seeking to disrupt certain key economic or state functions, is not directly violent to other human beings.

I’d also quibble with Tahrir square as an example, given that it was more of an act of revolt against an unjust regime (incidentally, a regime whose architects implicitly rejected rule-of-law in the interests of social justice. How’d that work out?)

Chris Bertram – may I respectfully request you read christian_h’s latest missive and then reevaluate a) his humourous intent b) who it is exactly that needs to get a grip?

A conception of rule of law that accepts that Hayekian principle gives away most of the game. Property rights themselves depend on state coercion for enforceability. It’s not clear why taxes or a different set of property rights should be characterized as fundamentally different in kind–it’s all the state using its power to direct how/where surpluses are allocated.

And there’s certainly nothing about the way legal rules function that would prevent different allocations. It’s not a natural or neutral implication of “rule of law” that unearned incomes (i.e. rents that flow from land, capital equipment, other people’s labor based on how we define property rights) must be privatized rather than distributed according to democratic and constitutional legislation. Just because some people think rules that benefited them are unchangeable doesn’t mean those are the rules of the game forever or that all other rules are inherently illegal.

Whether any of these changes are likely to come about, in light of the way power is exercised in our legal system, is another question. And i tend to agree w bob mcmanus there.

Wait. I thought Chris Bertram was some sort of professor of political philosophy, not someone fundamentally confused about the meaning of “the rule of law.”

CT needs to improve its security measures to prevent hackers from posting under the names of its members. Obviously, there’s a great risk of embarrassment.

… Pretty freakin’ obviously, in the United States for example, the possibility of future tax increases, which may affect property already obtained, is part of the set of operating assumptions.

Perhaps this is Worldwide Pretend Hayek Was Right Day, and I’m just behind on the joke?

Ok so to be clear: I would much prefer it if we could achieve radical change without any violence. I just doubt it’s possible – the powerful usually don’t surrender without a fight – and won’t pretend otherwise. This does not mean I’m “calling for murder” any more than someone supporting Obama’s reelection despite the drone warfare etc. is “calling for murder” or someone who supported the 1989 revolutions in Eastern Europe was “calling for” radically lower life expectancies in Russia. And I was being ironic in my original comment – I thought my use of the Stalinist phrase “eliminate … as a class” gave it away…

Like everything in real life (as opposed to philosophy textbooks) the “rule of law” is contested ground. Its fetishization (I believe Chris used this term very precisely, in relation to what was argued in the previous post) is not a neutral act; rather, it is a way of hegemonizing current social practices and power relations.

Current law, for example, makes just about all practices of social disruption illegal in many places (certainly in the US), including civil disobedience, strikes and such. On the other hand, current law legitimizes the application of power by (excuse the jargon) the ruling classes. The claim that the power of the powerful could be broken within current law – by raising taxes or whatever – is thus exposed as a convenient fiction. Of course the liberal form of our politics does not as such make the achievement of a more just and equitable society “illegal” – but it does make it all but impossible without first transcending law. This is not exactly new – most of the social achievements that we have came about via the application of social disruptive power that was at the time illegal.

Yes Daragh, being honest about the implications of one’s politics can be pretty appalling – history often is pretty appalling. It’s still preferable to lying to yourself.

On appals v. appalls: nevermind, I guess it’s a British thing.

Perhaps not quite the power we’d like to see politicians have?
Tim @ 66: there is a difference between a politician having the tax returns of her political opponents audited (bad) and noticing that her political opponents hadn’t bothered to file tax returns since 2007 (unexceptional).

Rea, I sort of agree with you, but sort of don’t on the tax returns issue. The information discovered in Tim’s example was of the unexceptional kind. The impulse to call the tax authority about your political opponents when they gain prominence is bad.

It strikes me that one of Chris’s major mistakes in these two threads is to attack the rule of law and propose replacing it in certain instances with enforcers who are allegedly subject to democratic accountability without realizing that one of the real-world functions of the rule of law is to provide accountability as to the legislature (to make clear laws) and between the legislature and the enforcers (to enforce the laws that have democratic backing as opposed to their own personal animus or impulse).

Chris, I think this is one where you should just admit that your original post made no sense. (unless it’s just trolling, in which case fess up)

1. Inheritance tax increases are compatible with the ROL in a democratic republic like the US
2. Income tax increases are compatible with the ROL in a democratic republic like the US
3. Income tax increases are compatible with the ROL in a democratic republic like the US
4. Heck, even the institution of a direct wealth tax is compatible with the ROL in the US. Maybe you’d need to pass an amendment, but fine.

Your gripe is actually that your preferred policies have no chance of being democratically enacted. That’s not a problem with the rule of law.

Chris, if we returned to the marginal tax rates of the mid 1950’s wouldn’t that have a redistributive effect without requiring the abolition. Congress is also explicitly permitted to change the bankruptcy laws in the Constitution. So long as we live in a democracy the fortunes of the 1% are the result of democratic agreement: if the working class was to organize for a progressive income tax, we would have a progressive income tax.

rea: Actually, Congress could change the formula for capital gains, charging on prerealization as well. The difficulty of this approach is obvious: illiquid assets are hard to value.

Chris,

Let’s stipulate that this sentence fully captures Hayek’s notion of the ROL. Let’s further stipulate that significantly increasing taxes violates Hayek’s conception of the ROL. Seems like a weird position for Hayek to take, but again, let’s stipulate it.

Even so, what does this have to do with left-liberals you were tweaking above? Almost *no* left-liberal I know (I’m not one) thinks tax increases violate the ROL. Your statement:

This idea that we all order our affairs under a system of predictable rules sounds very nice, but I do wonder whether it’s compatible with some of the other things that you seem to be signed up for.

is only relevant if you think left-liberals take on board the view of the ROL you ascribe to Hayek. Which they manifestly don’t. So again, I think this doesn’t make sense .

I was going to contribute to the debate on this post, but by the time I got to it the comment count was up to 101, and thread longa, vita brevis.

On the OP I’m basically with Pashukanis – the rule of law is inscribed with the foundational assumptions of bourgeois society, and the law under communism would either look very different indeed or (in a more utopian view) not exist at all. I don’t think it follows from this that, starting from where we are now, the protections of the rule of law should be dismantled, even where the short-term effect of doing so would be to the benefit of the working class. The “Man For All Seasons” argument is very much to the point – in the absence of a mass movement pushing for regulation of the rich, “more regulation” is likely to mean “more regulation of the poor” first and foremost. (There are those who argue that a rise in regulation of the poor is actually to be welcomed, as it will be accompanied by a fall in the punitive policing of the poor. To which I say, “show your working” – it sounds a bit like the argument that workers who put up with sexual harassment get higher wages.)

The law needs pushing – and ultimately, in the lonely hour of the last instance, pushing till it breaks. But we’re nowhere near there yet – and not likely to get there any time soon; at the moment I don’t see much sign of anyone pushing it from below.

Chris @99
But your original post was directed at liberal rule-of-law fetishists. And now you’re trying to saddle us with a Hayekian conception of the rule of law which I doubt any of us accept. I sure don’t.

From the OP: But don’t kid yourselves that you can do the redistribution you want and treat the rule of law as absolute

In fact, a lot of us are saying straight out that the redistribution we want is perfectly compatible with the rule of law as we understand it. As Watson says @100, just returning to Eisenhower-era tax rates in the US would go a long way to accomplishing what we want.

Are you pulling our legs?

being honest about the implications of one’s politics can be pretty appalling

But what are your politics? Being pissed off by the status quo and screaming “revolution” isn’t politics. Neither is wishing for a pony once you get your way.

Chris, I got it from your Hayek quote:

Under the rule of law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game, the individual is free to pursue his personal ends and desires certain that the powers of government will not be used deliberately to frustrate his efforts…

Individuals are not free to pursue [their] personal ends and desires certain that the powers of government will not be used deliberately to frustrate [their] efforts because thems as gots there first are doing exactly that.

I think the discussion at this juncture might benefit from consideration of whether or not “liberal socialism” (John Roemer), assuming its coherence and plausibility, has the redistributive properties or effects Chris, and others, believe necessary. Rawls, who endorsed a conception of liberal socialism (and referenced Roemer’s book on same), described it as an “illuminating and worthwhile view” characterized by four elements:

(a) A constitutional democratic political regime, with the fair value of the political liberties.
(b) A system of free competitive markets, ensured by law as necessary.
(c) A scheme of worker-owned business, or, in part, also public-owned through stock shares, and managed by elected or firm-chosen managers.
(d) A property system establishing a widespread and a more or less even distribution of the means of production and natural resources.

As Rawls wrote, “Of course, all of this requires much more complicated elaboration.” From Rawls’ Lectures on the History of Political Philosophy. Samuel Freeman, ed. (Belknap Press of Harvard University Press, 2007).

we would have a progressive income tax.

2) But all mainstream economists are adamantly opposed to wage inflation over productivity, and are horrified at the thought of a regime of expected wage inflation over productivity.

3) So divert new revenues into infrastructure and social services (education, health care, retirement)? Well, this should increase productivity and profits and we will get an expanding pie, but again without allowing wages to outpace prices, my guess will get renewed inequality.

4) The Great Compression had several factors besides high tax rates, and wage increases outpacing prices and asset/equity gains was another important part of the story.

Rawls was basically reverse-engineering contemporary US society

No. Totally wrong.

I don’t think I’ve ever actually come across a booster of Rawls’ “property-owning democracy”, despite the popularity of Rawls as a political philosopher. The welfare state is accepted by most, and folks further left aren’t fixated on Rawls (much less Hayek).

OCS,

I think Chris isn’t paying as much attention to the recursive nature of a phrase like “Rule of Law” as perhaps we’d like him to.

When people change the rules of the game to make sure that they never or rarely lose, then they’re forcing people who oppose them into an equivocation on the phrase “Rule of Law”. Prior to any such changes, presumably the law was fair and just. After the changes made by the powerful, the rule of law is no longer either fair or just, yet it remains ‘Law’, just of a different kind and quality than what existed before.

Roger, fair and just does not imply a unique configuration of laws. Is it juster to have a law proclaiming that one can turn right on red, or the opposite? What about a law permitting the operation of a chemical plant in a particular region, or a law banning such operation? Now suppose I lobby to operate a chemical plant, and the law is changed through democratic processes. Is my wealth somehow illegitimate, merely because there used to be a law prohibiting it? Must every condom manufacture look over their shoulder for the aftermath of the Comstock laws?

Chris,

Sorry to misunderstand you, and thanks for the clarification. But I think there are a couple of problems that remain even under my new (clarified) understanding of your point.

1. First, I think it’s obviously correct that a Rawlsian will believe some actions with desirable consequences can’t pursue because the means are illiberal. That’s just the definition of liberalism. So, can a Rawlsian liberal in a well-ordered state aid substantive fairness by stealing rich people’s money, Robin Hood style. No, he cannot.

2. But I think to force Rawlsian liberals into the kind of dilemma you were posing requires two semi-equivocations:
a) Defining ROL as “society ought to be run according to predictable rules that provide individuals with *certainty* that their efforts won’t be nullified by state action” seems fair enough. But any liberal (and I would think Hayek as well, although I’m very ill-read on Hayek) is going to have to admit that the certainty provided can’t be absolute. The law can change to adjust to new situations and may burden some minority more than the public generally. Whether these changes are permissible will likely be a sum of i) whether the objective is itself a liberally permissible one, ii) how it is instituted, iii) how grave a violation of liberty/justice/fairness it imposes on the minority.
b) As others have noted, there’s an ideal vs. non-ideal tension running through here. The problem with the 1%, in your OP, is not that they are rich, but that they are using wealth to actively corrupt the rule of law. That’s a prototypical non-ideal situation. It almost feels like you’re asking under what conditions the “Hayekian Rawlsian” cam support a right to revolution.

@ + Roger “Chris Bertram, you’re making a mistake in thinking that wealth was non-criminally acquired.”

I tend to agree with Roger that a great deal of the wealth held by the 1% was acquired, if not criminally, then at least unlawfully (aggressive tax planning that wouldn’t stand up to audit, wealth accumulated from violations of securities laws, environmental laws, consumer protection laws, anti-trust laws, worker protection laws). I’m a corporate lawyer and I see first hand how a LOT of decisions get made in the full knowledge that it’s in violating a rule or reg, but the risk of detection and prosecution is low to negligible. So I kind of wonder about the “basic legitimacy of existing liberal democratic states (and hence property ownership etc under them)”

Which tends to argue for the point that, at least to some extent, we will need to relax our devotion to RofL, and stop fetishizing it. I can assure you that those what have wealth are not nearly so scrupulous.+

“Nice rhetorical move that, but I’m not buying, because I think that respecting this procedural constraint ensures that the poor are always with us: we need to get the stuff off the rich.”

Nice zero sum fallacy there.

My argument is much more compact that this Hayek/Rawls thing that I don’t understand (cue, so, what’s new with Worstall not understanding?).

“Within the known rules of the game”

That’s the point I consider important. I don’t mind (so much) what the rules of the game are. I just insist that they be known. To be absurd, if you get out of the left side of the bed then the tax rate on your income is 10%. On the right then it’s 50%.

If that’s something that is detailed by the law only after you’ve got out of bed then we’re not operating to my concept of the rule of law. If it’s something that you know and are told before you go to bed at night it may well be a ludicrous tax law but it doesn’t violate my (obviously idiosyncratic) definition of the rule of law.

Which brings us back to Bertram’s original, the enforcers should have more power to zap the bad ‘uns even if they haven’t actually broken the law.

Err, no.

Lizardbreath!

Nice to run into you again. All well I trust?

Chris, for that next post, I suggest you run some numbers:

Assume you don’t confiscate and redistribute capital, but redistribute just the income generated by that capital through a steeply progressive income tax system (including dividends, rental income and capital gains, maybe unrealized capital gains too), using the revenue to fund policies that have redistributive effects, such as universal health care, better education at all levels, enhanced pension benefits, etc. Those steps would stay within your confines of ROL and accepted procedural limits, right? You may be able to get to a higher level of equality faster than you may have thought; i.e. in a decade or two as opposed to several generations. Although not being an economist, I’m just speculating. (Whether or not the result is egalitarian enough is another question.)

But this won’t address the question of whether any such course of action would be politically doable.

Hi there liberal rule-of-law fetishists!

Let me Onion that for you.

The kind of intervention where I think Rawls would see the ROL as being violated is where someone has accumulated property according to the law in a legitimate (though not fully just) state and where the state then takes this property off them (ex post) for redistribution to others.

The move you make that I can’t quite follow in the original post is “If you really want a shift in the distribution of wealth and income, if you really really want it, then realistically you’re going to have to use state power to do a bit of ex post redistribution. ” I think that’s a claim that that the sort of gradual shift that wouldn’t violate the RoL (as you define it) might have some redistributive effect, but realistically wouldn’t actually work to meaningfully serve the goal of redistribution, and that claim doesn’t seem to me to be obviously well supported.

Say, consumption taxes: would the institution of a draconianly progressive consumption tax strike you as a violation of the RoL as you define it? Financial transaction taxes? Changes in real property tax rates? Policies leading to inflation sufficient to decrease the value of currently held wealth, combined with progressive income tax rates on the income derived from that wealth? There seem to me to be plenty of policies that would work (whether or not we could successfully enact them) to meaningfully reduce inequality of wealth, that wouldn’t appear to me to violate the RoL — to the extent that your post rests on the claim that anything that would work, would also violate the RoL, I think that’s where the problem lies.

Baa! Haven’t noticed you around in forever. You should come by Unfogged and argue about stuff sometime, and I’ll try ineffectually to keep my temper. It’s no fun when everyone’s agreeable.

After 148, I apparently completely misunderstood the original post. If I’ve got it now, it could be roughly summarized as: Given that the holders of wealth control the levers of ‘legitimate’ government power, it’s probably prohibitively difficult in practice to institute policies that would have the effect of significantly redistributing wealth without abandoning the RoL.

At which point I’d agree that such policies are terribly difficult to institute, but that they have been successfully put in place in other times and places, and I hope, possibly in vain, that we can do the same thing again in the future.

leederrick – I think you’re right.

Chris is saying that he will not take away your boat and give it to a poor person.

But if you lease the boat, and generate income, it is OK to tax the income, and presumably within a progressive system.

There are a lot of problems with this in practice.

Normally, for a capital property, you’re allowed capital cost allowance (CCA), which means you don’t have to pay income tax on the depreciation of the asset. In theory anyway, you should be able to replace your boat at the end of its useful life. So in Chris’ conception, in order for the state not to be confiscating capital which was legitimately acquired, the CCA provisions would have be be pretty generous. Then of course there are no shortage of ways to generate other deductions from the gross rental revenues to ensure that very little income is actually taxable. Not to mention the problem that you can enjoy the boat without paying any rental fees to yourself, whereas arguably, that imputed rent should be taxable revenue. It turns out to be really, really difficult and complex in practice to maintain the difference between capital and income, because it is sort of artificial. (Although many extremely capable individuals are paid highly to do just this.)

Chris, I’m confused by your capital strike argument. If the argument is that productive resources do less work when taxed, but wouldn’t if confiscated, then the state should be able to buy out the capitalist compulsatorially, but with compensation. After all, the state can make more with the property then the capitalist can. But in practice people maximize profit, no matter how much they give to the tax man as a result. This seems like the Laffer curve in reverse.

Your basic premise, that the 0.1% got its stuff fairly, is wrong
It is a fundamental rule western civilization that a criminal may not keep his or her ill gotten gains.
The gains of the 0.1% were done by , in many cases, crimminal activity (see Mortgage underwriting, WaMu).
In other cases, it was, at the very least, so morally and ethically wrong that no reasonable person could have believed that the actions were ok; see Bain Capital, taking of pension funds.

Here in the Sate of MA, we are having a debate of seniority for teachers in public schools.
The reason we hare having the debate is a “pseudograssroots” organization funded by un accountable rich guys – gates and koch and walton.
They have given an organization so much money that its threat to work on this is enough to move the debate here in Mass.
regardless of where you stand on this issue, the idea that faceless, un elected, un acccountable to anyone billioniairs are essentially running out country, as a practical matter, ought to scare you.

“But there are a number of reasons why you might not be able to. Overtly political resistance, obviously.”

Why do you get to use this as a curt dismissal, while your proposal doesn’t seem to have to deal with it?

So many comments on such a basic point: major changes to tax laws on property seem to violate the ROL requirement of non-retrospectivity, because they take property that has legally been acquired according to the prior order of rules. This is similar to taxing income earned in the past at a higher rate. Or punishing action that was legal when it was done, or increasing the penal tariff on a crime retrospectively. There is clearly some aspect of autonomy and dignity that is frustrated when one’s actions in the past are made to have different effects in law than they had at the time they were done.

But where the rules are unjust, our expectations that our actions won’t be legally judged a different way in the future are not so legitimate. And in any case, we will have to ask what moral harm is done by ROL violations and what good is achieved.

Of course many other things we might want to do in the name of other moral values also may be contrary to other rule of law values as well.

The Scheuerman article I am thinking of in particular is ‘The Rule of Law and the Welfare State: Toward a New Synthesis’ (1994) 2 Politics and Society 195 (no free version, unfortunately).

If you can’t access that, you will be pleased to know that Jeremy Waldron – one of the major theorists of both the ROL and property – has posted a version of his recent Hamlyn Lectures on ‘The Rule of Law and the Measure of Property’ on SSRN. I think the third and parts of the second lecture are right on the point in this post and thread.

(hopefully the link works!?)

I’m a bit curious about the dialectic here. Because as far as I can tell, almost all liberal RoL are defending one or both of the following points:

1. You can too get redistributive/egalitarian outcomes while staying within Rawlsian RoL strictures.

2. Getting rid of RoL is actually going to hurt the poor/disadvantaged/minorities/etc. more than it’s going to hurt the dominant classes.

But neither of these seems like a Rawlsian defense. The first is either a feasibility argument or perhaps a claim that the argument is (roughly) semantic — depending on where you put the stress. The second is a straight-up consequentialist defense. But again, a proper Rawlsian defense it seems to me would have to be a bit more “in-principle”. There’d have to be something just straight-up wrong about ex-post extractions. But as far as I can see this is not on offer–from liberals.

(And just to be clear, my own views on this are somewhere between CB and christian_h.)

But most of the actual existing liberals objecting to Bertram’s first post did not object to it on the grounds that it violated some prohibition on ex-post extraction. One or two (libertarian?) commenters did make that point but the main argument against seemed to be that it gives too much power to regulators to interpret the laws. So this post just seems like a strange response.

The argument to make, I think, is that 1) democratically-elected legislators are not actually any more resistant to corruption than the regulators they appoint 2) direct legislation isn’t flexible enough, fast enough, or smart enough to effectively expropriate from the wealthy. So if society has decided it wants a more balanced wealth distribution, it’s legitimate for it to appoint regulators to move things in this direction and give them the necessary powers to do so.

LFC:
Okay, I can see why you’d say that. I’m not going to go word-by-word through the post and nitpick, because it would be rude and miss the point besides. I really do think the post overall is so abstract that it isn’t going to bother someone who really is authoritarian or who’s mostly encountered authoritarian-like arguments in the past.

The second paragraph, obviously, is entirely abstract. There aren’t even any nouns that name specific people to the exclusion of other specific groups of people. Someone is going to have to give more and other people are going to receive more. An argument that the peasants should be taxed more to pay for building Versailles would have the same form.

The third paragraph, like the others, has a lot of rhetoric in it, and I’m not sure how much attention you would want to pay to that, so I’ll leave it out. The core of the argument is If you . . . want a shift in the distribution of wealth . . . you’re going to have to use state power to . . . take stuff from some people and give it to others.

You and I know that CB means the pattern of distribution, not the specific distribution at any given moment—but he didn’t say that, and it works very well either way. It could just as easily describe something like a game of king of the hill where the kid who won last tries to change the rules so that anyone else who tries to continue to play is now breaking the rules, and yells at them the whole time that they’re being mean in trying to make him move. “Debt cancellation” is also abstract in the sense that it doesn’t say which debts, whose debts, who will cancel them, or by what means (could it possibly be stretched to mean “canceling” them by working them off?).

Part of the problem, for me, here, is that I’m not sure exactly what CB means for “rule of law.” If it means predictability, it’s definitely more predictable to choose one king of the hill and let him be king forever. And then there’s “what’s best for the least advantaged.” If you haven’t heard the argument that undemocratic systems can be better for the poorest than democratic systems can be, all I can say is that I have, and maybe educators through the 1970s and 1980s started doing a more thorough job in making sure the kids in their care didn’t turn out to be hippies.

Bianca @167:
A ‘liberal’ in the European sense roughly equals (to my understanding) a small-government, business-oriented conservative in the US sense (with allowances, of course, for the somewhat different political spectrums in US vs. most of Europe). So Rawls is not a ‘liberal’ in the European sense (and I doubt that js. was reading him as such).

Rawls worked in what political philosophers usually call the liberal tradition, but whether Rawls is a ‘liberal’ in the sense in which that word is used in contemporary US politics, or whether he is something somewhat to the left of that, has been the subject of debate, as you might infer from a comment or two on this thread. The lack of precise definitions (what exactly is a ‘liberal’ in contemporary US politics? what is a ‘left-liberal’? a ‘social democrat’? etc.) is a problem here. At any rate, I might suggest that you scroll up to Patrick O’Donnell’s comment @114. Also you might want to take a look at this.

js. @169:
Well, if such ex-post extractions seem, intuitively, basically unfair to X, and X then puts that intuition into ‘reflective equilibrium’ with philosophical doctrines A, B, and C, and comes out still thinking intuitively that it’s unfair, there’s your ‘Rawlsian defense’, I guess. (Which doesn’t necessarily mean Rawls himself would come out that way.) But obviously CB is relying on very specific things Rawls says about RoL, which I am not immediately familiar with b/c it’s been a long time since I read Rawls. CB also relies, as he has said repeatedly, on Hayek’s exempting Rawls from Hayek’s strictures vs. various theories of justice. (I haven’t read Hayek.)

js, maybe I’m just so stepped in that Anglo-American conception of law by watching “Law and Order” so much, but are there conceptions of justice that aren’t rooted in procedure? We object to kangaroo courts because they are inherently illegitimate, not because they wrongfully convict people. The Secret Service protected the man who shot Regen from the crowd because justice, not vengeance, must be served. How is this not placing procedure high above any other consideration? Caught red-handed in front of a crowd of witnesses, the gun still smoking, we read him his rights instead of shooting him right then and there. So what then makes taxation higher then justice, when every murderer may avail himself of the law.

Damn. Next thing you’ll come out in favor of freeing the slaves, despite the legitimate property rights of the owners.

This, of course, is exactly the dilemma that kept the Whigs from remaining a viable opposition to the ante-bellum Democrats. What we may see in the next few years is the crack-up of the modern Democratic Party over its inability to either oppose effectively or support as effectively as the modern Republican Party, the property rights of the folks who have expropriated the rest of us. We will see effective opposition to our latter-day Slavocrats only if and when we get a party willing to do things analogous to the nullification of the Fugitive Slave Act by several Republican controlled state governments in the late 1850s.

js. @175
You may be right; there may be a ‘deep internal tension’. But seems to me it would depend, at least partly, on whether the restrictions on “the methods available to the state to achieve the desired outcomes” are viewed as ‘principled’ or ‘ad hoc’. Presumably a Rawlsian would say that those restrictions derive from principled considerations; moreover, R. did make some effort to deal with possible tensions between different principles by giving certain principles priority over others (though I’m not sure how much that helps here). Some of this turns on how one views ‘retroactive’ application of rules (per, e.g., the comments @160 and 173).

Also, a side point: R’s focus on the ‘basic structure’ is, I think, not a ‘procedural constraint’ on methods available to the state. It simply means R. is concerned with “the political constitution and the principal economic and social arrangements” (TOJ, p.7) rather than with, e.g., individuals’ private, voluntary decisions about how to use and dispose of their income and wealth. Now, there are arguments to be made that such decisions are too important to be ignored by a theory of justice (cf. Cohen, If You’re an Egalitarian…), but in itself the focus on the basic structure is not, ISTM, a limit on the powers of the state or the methods available to the state. Those limits come from other aspects of R’s theory.

Here’s a strong argument against ex-post taxation. Two similarly situated individuals are treated differently because of their histories. A wealth tax doesn’t do this. The argument against seizure of property without compensation is obvious if you’ve payed any attention to how property seizure actually works.

So Chris, I know I’m coming to this late, but aren’t you basically saying that the cake is a lie?

(Everyone who gets that joke – you play too many video games!)

Tax dodges are legal. So is taxation. But you can’t pass laws deciding that Mitt Romney personally owes so-and-so much in additional taxes this year because he’s been abusive employing tax dodges, no matter how just they are. To do is precisely the kind of role as moral judge that the state isn’t supposed to have, even in democracies.

Chris, how is that different from the current state of US tax law? What makes a Double Dutch with an Irish Sandwich a ruse, but leasing instead of buying not a ruse? As for caring about our Constitution, if you had it English courts wouldn’t have super injunctions and the police could not imprison suspects indefinitely without charge.

If experience is any guide, stupidity is consequential. Anyway, you are as always evading the point, which I will repeat because I’m not going to let you misrepresent my critique:

“That post is what happens when you allow your opponents to define the terms of the debate.”

When you allow wingnuts and extremists to define “Rule of Law” then you may end up having to oppose it. When you allow extremists and wingnuts to define “liberty” or “rights” then you end up having to argue against liberty or rights. Which is exactly the position they would like to see us in. If you can’t see why that is not only stupid but damaging to the progressive cause then I’ll stop right here. But don’t you dare misrepresent my argument.

Piglet, so far as I can tell Chris is the one with the weird definition of “Rule of Law”. The number of people who think you can’t change tax laws because of the rule of law seems vanishingly small.

Hayek’s ideal of the ROL, namely that “Within the known rules of the game, the individual is free to pursue his personal ends and desires certain that the powers of government will not be used deliberately to frustrate his efforts…” is shared by plenty of liberals far to his left.

Provided that’s true, it’s depressing news. I don’t think it’s possible to write anti-monopoly trust busting legislation under that kind of ROL. Even if the trust-busting legislation says “we come break up your company once you have 80% or more market share according to this objective measurement standard” it’s still in violation. When you don’t have a monopoly yet you don’t know if you’ll ever cross that line, so you don’t know for certain that “the powers of government will not be used deliberately to frustrate” you. Same thing applies to e.g. pollution control. Are you sure that many of the folks you’re identifying as “ROL fetishists” from the first post, would accept this definition of ROL as their own?

Guys, I think we are all reading Hayek ridiculously, or using what Hayek thought to paint rule of law as a bad thing. Rule of Law doesn’t mean that the law won’t be used against you, it means the law will not be used as an instrument against you. Let’s imagine that smoking indoors was legal, and now it is not. You as a smoker had no way of knowing that this was going to happen, and it does make life more difficult. But I don’t see that the rule of law was violated. Likewise in the anti-trust analogy certain acts are prohibited by monopolies. If before the Clayton anti-trust act you owned a monopoly, that doesn’t give you the right to complain when the law comes into place. But if this is narrowly tailored against you and there aren’t neutral justifications for it, then we’ve got a problem.

Bruce, the issue with that argument is we judge people ex post with rules set out ex ante. Making new rules is different from judging people’s past actions with the new ones: it’s the latter which I take Chris to be defending, and which I’m attacking.

Chris 187: when you start invoking Hayek as authority on what leftists should mean when they say “Rule of Law”, something is … weird. And when you make claims like “Hayek’s conception of X is shared by plenty of liberals far to his left”, you better provide some good evidence for that claim; with due consideration of the word “plenty”.

And similar to BW 197: “Rule of Law as, “a system of predictable rules” is a fairly authoritarian view (aka wingnutty)”. Can you provide some kind of support for that claim, an argument, a citation, anything? You go on to say that revising rules and making new ones is inconsistent with the concept of “Rule of Law”, huh? How come you are the first to notice such a huge conceptual inconsistency? This is all deeply depressing, not even because I think you are wrong (it’s more like “not even wrong”) but because this whole thread is built on some absurd strawman argument. I’m far from claiming to be an expert but surely you must be aware that these concepts have been debated for centuries by philosophers, legal scholars, political scientists and what not. To think that you can ride in and in a few incoherent lines of blogging expose that whole idea as absurd and untenable and whatnot? It reminds me of those poor souls who sincerely believe that they can disprove the whole science of evolution or global warming in a few sentences, needing not even high school level of science education.

Watson:
When I say “certainly no one has said P,” I mean it’s kind of pointless to even discuss P because it would only be a strawman. Here, where P is “regulation acts before the fact,” you and Bruce Wilder seemed to allude to it, though if you did it was admittedly too vague to count.

But to clarify, yes, a rule against murder is supposed to prevent murder. But it’s supposed to prevent murder by specifying a penalty to be applied after the fact. It would be dumb to refuse to prosecute a murder on the grounds that the law was defective in not preventing the murder, and that the purpose of the law is not to work ex post facto. It would be just as dumb to expect a law against murder to change the citizens instantly so that there would be zero murders. And when we say “rule of law,” we’re talking about how the government works. We don’t mean the people have internalized a system of laws.

The same for regulation. When something happens you didn’t expect, it’s entirely possible that there was already a rule against it; it’s not NECESSARILY the case that the problem was you’d failed to regulate against those consequences. You also wouldn’t say, “somehow or other the guys on the front lines seem to be running around without any self-control at all! clearly there’s no point in going after them, much less their supervisors. after all we were responsible for making sure they did the right thing.” Or “well, but it’s bad form to complain after you’ve lost.”

(On second thought, “no one” may not include China Mieville, who in Kraken has people programming the denizens of the spirit world with something like JavaScript.)

Watson: Rather he’s proposing we change the law, then go back and find people who broke it before the law existed.

That was in the other thread, and I don’t see that that’s what CB is saying. He’s suggesting we change the line between acceptable and unacceptable discretion when something falls between the rules. And I’m not sure he’s actually proposing that. I don’t know enough about how the law is interpreted now to know whether it’s a change.

“Oh dear Sebastian, are you really so incapable of paying attention.”

If a huge portion of your readers come to a (wrong?) conclusion, and it hits across two different posts, and it spans the ideological spectrum from Sebastian to Phil to Lizardbreath to rea, maybe you aren’t being very clear.

But your ability to drip with condescension is coming through like crystal. So your ability to communicate emotional content isn’t lacking.

Important areas you’ve left unaddressed:
1) you’re quick to brush aside rule of law changes due to political difficulties, but your own (imho harder to enact) proposals don’t seem to draw that criticism in your mind. Why is that?

2) Your focus appears to be on discretionary enforcement mechanisms but you don’t respond to the historical problem that in vast areas of legal enforcement, across huge numbers of varying cultural climates, that is a great way for the poor, the poorly connected, and the minority to get screwed over. How is arbitrary enforcement going to be mitigated under your proposed structure? (See for example the problem of overcharging to induce plea bargaining or almost the entire history of dealing with racial minorities).

3) And I hesitate to mention it because I worry that you’ll ignore the other two, but is Hayek really anyone’s go to guy on Rule of Law? What is mentioning him getting you in the discussion other than gratuitous libertarian swiping? Yes, he talks about it (and it seems like you are misinterpreting him in the quotes), but who cares? Does the average person who uses ‘rule of law’ mean what you claim Hayek means? If not, why in the world would you muddy the water by introducing it? You should either use the term as most people you’ll be interacting with it use it, or you should capture Hayek’s [alleged] meaning in some other term if you think you absolutely have to discuss it. So far as I can tell, just about no living person uses the rule of law in the way you claim Hayek used it, and I’m not particularly sure that Hayek used it the way you think he did. So why bring him in at all?

Tim Wilkinson @ 173. I would read prospectivity as core rule of law principle that applies beyond the criminal law. As would most legal philosophers.

If you don’t mind having things you have already done being subjected to different rules now, that’s fine. But I like to be able to plan my life on the basis that what I do according to the rules will not have a different consequence attached to it, by new rules, in the future. We should at least recognise the moral trade-off involved in retrospective rule-making.

And Pat @ 179 – way to miss the point!

Watson Ladd: “Making new rules is different from judging people’s past actions . . . ”

I’m not so sure that it is different, or can be different. In a world in which we are learning as we go along, ex ante and ex post are just hopscotch along the path. Every judgment we make is a dual judgment. We are judging whether the ball has bounced out of bounds, and, also, at the same time, whether the bounds are correctly set and marked.

“Rule of law”, for a philsophical liberal, implies institutions of law regulating the terms of social cooperation, and productive of a public (or general) good. It is perfectly sensible to balance the arbitration of conflicts over private interests with consideration of a general, public good or interest, and that calls for exercise of such dual judgment in governance.

Mark – All my classic works of jurisprudence are currently hidden in a large stack of unmarked boxes, so I’ll stick with materials linked here.

I acknowledge the possibility of a tradeoff (‘cheerfully accepted’). Just because something is generally desirable, or a feature of good law, or necessary for justice doesn’t mean it is part of the Rule of Law, though. While I agree that plenty of (post-Dicey) theorists would include non-retroactivity (and such things as generality) as elements of the rule of law, I would be inclined not to, for the reasons given. That laws be prospective may be a requirement of justice, but the laws, rather than persons, can perfectly well be in charge and yet still have some retroactivity. I would even suggest the same might be said for non-general laws – those aimed at named individuals, for example. These may be odious but need not be incompatible with rule being by law rather than persons.

I think the reason why these two (undeniably important) aspects of good law are easily dumped into the expanding file marked ‘RoL’ is that one would naturally tend to associate both retroactivity and victimisation with partial or (to use a nebulous term) ‘arbitrary’ rule, as of for example, a dictator. And in fact I suspect one might tend to see retroactivity as typically a vehicle for such victimisation: retroactivity is likely to be a reaction to something, and that something is going to be a concrete state of affairs involving particular people, and so teyhre is likely to be at least the suspicion of victmnisation. (Of course if one is Hayek one might go over the top and weaken one’s position by first taking the kind of view that in other circumstances might be called ‘paranoid’: supposing that ‘interference’ in the market amounts to ‘deliberate frustration’ of plans, and then, directing one’s objections only at such victimisation.)

This is a somewhat idiosyncratic position, perhaps, but not one I rely on anyway. I think limiting the requirement of prospectivity to crime is more common (a very quick scan of couple of those papers, suggests that they are very much directed at the criminal law), and I’m arguing in particular that it is not something that applies to rules of entitlement, as a matter of the RoL, at least. Rules of entitlement are not primarily, and certainly need not be, intended to guide action in the way that criminal prohibitions are. Here I go further than, say Waldron supra, who only goes as as far as commenting that what I don’t think we should concede is that the rhythm and timetabling of a society’s legislative flexibility should be adjusted additionally to pander to the profit horizons of individual investors who crave a certainty in the property market that they cannot secure in other investment environments.

I would say first that ensuring the functioning of markets is not an aim which it falls to the RoL to achieve. This may depend on what sort of ‘functioning’ we are talking about, but if we were using Laffer logic and trying to maximise revenue for example, the issue would be whether messing about in the market would upset incentives blah blah. But this is far too substantive an aim for the Rule of Law to be responsible for. And I can’t see any other kind of failure of the market grounding a charge of abrogating the Rule of Law.

There’s an ambiguity in the common term ‘legitimate expectations’, which tends to muddy waters here. If upsetting ‘the rules’ of property were to ground a complaint of fundamental injustice, it would need to involve not just frustration of sensible expectations, but frustration of valid claims to have those expectations honoured (the Waldron quote makes a mild version of this point – without foreclosing the option of going further). And then we are arguing about distributive justice rather than the rule of law.

I would also add as yet another aside that markets can take a lot more messing around with than one might suppose if one were to listen to right-wingers like Rawls, Hayek and the fabled ‘markets’ whose opinions and sentiment are conveyed with such clarity to journalists. I’m reminded of the observation that sovereign default seems to be ‘forgiven’ rather quickly by the markets.

In any case, should this argument go against me, I can sidestep it by pointing out, as above, that in any case confiscating property, by whatever means, does not involve retroaction; and even more clearly neither does imposing a debt. Tax laws are unpredictable, like lots of other things. that doesn’t mean that when they hit some ‘protected’ expectation must have been violated, nor that any past entitlements have been altered, nor some new prohibition imposed on past conduct.

I think the opposite view may have been encouraged to some extent by the intial focus on anti-avoidance rules, which seem to have been thought of as analogous to some post hoc loophole-closure device. But in fact anti-avoidance provisions (certainly those currently under consideration in the UK) are much more a matter of a better approach to drafting aimed at (prospectively) eliminating a whole range of ‘loopholes’ by attending to the reality of the situation rather than formal accounting procedures. I think there may also be a tendency to think of tax laws as penal (the libertarians’ men with guns) and thus to suppose that a tribunal’s finding that a certain avoidance strategy is ineffective is, or is ‘tantamount to’ (whatever that means), a finding of fraud or other crime.

I’m sorry, I couldn’t read through all these comments. I did search and find “slave” mentioned, but not this:

I’d just like to point out how closely the disagreement here resembles that old conflict about the abolition of slavery — whether to compensate the slave owners. The British Empire compensated the expropriated slave owners — putting the government in severe debt. (If I recall correctly, its deepest level of debt ever.) In clear violation of its own constitution, the USA did not compensate expropriated slave owners (except in Washington, DC).

To my mind, it only seems odd that no one thought to compensate the slaves.