Posts Tagged 'rule of law'

Pedantry and Mastery in Following Rules

From George Polya’s classic How to Solve It (p. 148).

To apply a rule to the letter, rigidly, unquestioningly, in cases where it fits and cases where it does not fit, is pedantry. Some pedants are poor fools; they never did understand the rule which they apply so conscientiously and so indiscriminately. Some pedants are quite successful; they understood their rule, at least in the beginning (before they became pedants), and chose a good one that fits in many cases and fails only occasionally.

To apply a rule with natural ease, with judgment, noticing the cases where it fits, and without ever letting the words of the rule obscure the purpose of the action or the opportunities of the situation, is mastery.

Polya, of course, was distinguishing between pedantry and mastery in applying rules for problem solving, but his distinction can be applied more generally: a distinction between following rules using judgment (aka discretion) and following rules mechanically without exercising judgment (i.e., without using discretion). Following rules by rote need not be dangerous when circumstances are more or less those envisioned when the rules were originally articulated, but, when unforeseen circumstances arise,  making the rule unsuitable to the new circumstances, following rules mindlessly can lead to really bad outcomes.

In the real world, the rules that we live by have to be revised and reinterpreted constantly in the light of experience and of new circumstances and changing values. Rules are supposed to conform to deeper principles, but the specific rules that we try to articulate to guide our actions are in need of periodic revision and adjustment to changing circumstances.

In deciding cases, judges change the legal rules that they apply by recognizing subtle — and relevant — distinctions that need to be taken into account in rendering decisions. They do not adjust rules willfully and arbitrarily. Instead, relying on deeper principles of justice and humanity, they adjust or bend the rules to temper the injustices that would from a mechanical and unthinking application of the rules. By exercising judgment — in other words, by doing what judges are supposed to do — they uphold, rather than subvert, the rule of law in the process of modifying the existing rules. The modern fetish for depriving judges of the discretion to exercise judgment in rendering decisions is antithetical to the concept of the rule of law.

A similar fetish for rules-based monetary policy, i.e., a monetary system requiring the monetary authority to mechanically follow some numerical rule, is an equally outlandish misapplication of the idea that law is nothing more than a system of rules and that judges should do more than select the relevant rule to be applied and render a decision based on that rule without considering whether the decision is consistent with the deeper underlying principles of justice on which the legal system as a whole is based.

Because judges exercise coercive power over the lives and property of individuals, the rule of law requires their decisions to be justified in terms of the explicit rules and implicit and explicit principles of the legal system judges apply. And litigants have a right to appeal judgments rendered if they can argue that the judge misapplied the relevant legal rules. Having no coercive power over the lives or property of individuals, the monetary authority need not be bound by the kind of legal constraints to which judges are subject in rendering decisions that directly affect the lives and property of individuals.

The apotheosis of the fetish for blindly following rules in monetary policy was the ideal expressed by Henry Simons in his famous essay “Rules versus Authorities in Monetary Policy” in which he pleaded for a monetary rule that “would work mechanically, with the chips falling where they may. We need to design and establish a system good enough so that, hereafter, we may hold to it unrationally — on faith — as a religion, if you please.”

However, Simons, recovering from this momentary lapse into irrationality, quickly conceded that his plea for a monetary system good enough to be held on faith was impractical, abandoning it in favor of the more modest goal of stabilizing the price level. However, Simons’s student Milton Friedman, surpassed his teacher in pedantry, invented what came to be known as his k-percent rule, under which the Federal Reserve was to be required to make the total quantity of  money in the economy increase continuously at an annual rate of growth equal to k percent. Friedman actually believed that his rule could be implemented by a computer, so that he confidently — and foolishly — recommended abolishing the Fed.

Eventually, after erroneously forecasting the return of double-digit inflation for nearly two decades, Friedman, a fervent ideologue but also a superb empirical economist, reluctantly allowed his ideological predispositions to give way in the face of contradictory empirical evidence and abandoned his k-percent rule. That was a good, if long overdue, call on Friedman’s part, and it should serve as a lesson and a warning to advocates of imposing overly rigid rules on the monetary authorities.

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La Republique Constitutionelle, C’est Moi

In addition to being popular with the poorly educated, our President-elect also has a committed corps of  highly educated, scholarly supporters. One of the more notable of these is a scholarly type who, writing under the somewhat pretentious pseudonym “Publius Decius Mus” (hereinafter PDM), described the 2016 election as the Flight 93 Election, which seems an odd way to encourage voting for someone, inasmuch as the passengers on flight 93 could not have expected to survive their attack on their hijackers. By implication, a vote for PDM’s choice for President was a vote for national suicide. The suicide committed by the passengers on Flight 93 averted an even greater catastrophe, but what is the larger catastrophe averted by this act of national suicide? But I digress.

Without exactly addressing the peculiarity of the metaphor he used to frame the choice facing voters in 2016, PDM, in a subsequent response to critics, explained that his point was that, although the United States of America might continue to exist if Hillary Clinton were elected President, it would no longer be a Constitutional Republic. A Clinton election, PDM argued, would mean that the country would inevitably continue on its current irreversible path toward an Administrative State ruled by a cadre of faceless bureaucrats and experts unaccountable to the people or their elected representatives.

Thus, in PDM’s view, the outcome of the election has preserved the future of the US as a Constitutional Republic, though, as already noted, that interpretation seems to be belied by the metaphor with which PDM chose to frame the choice presented to voters. At any rate, PDM, while acknowledging that his chosen candidate was an imperfect standard bearer for the cause of Constitutional Republicanism, argued that, by speaking out against the policies of unrestricted immigration, free trade, and military interventionism pursued by all recent administrations, his preferred candidate was the last, best — indeed the only — hope for the preservation of our Constitutional Republic.

The transfer of power to the new administration has not yet taken place, but we have already seen evidence of the commitment of PEOTUS to Constitutional Republicanism. Of course to gauge the commitment, it may help to first have a general idea of the main characteristics of a Constitutional Republic, which we may summarize as follows:

  • The people are sovereign and exercise their sovereignty through a government of elected representatives.
  • The powers exercised by these representatives are limited by a basic law (the Constitution) defining the lawful powers that these representative may exercise.
  • The rights of the people are protected by a rule of law that allows the government to restrict or abridge the rights of citizens only by enacting laws consistent with the Constitution.

But before discussing the attachment of the PEOTUS to Constitutional Republicanism, I want to refer to a post I wrote about six months ago in which I discussed an extraordinary 20th century British politician whose influence, for better or worse, is still felt in Britain, a politician who, in opposing immigration by non-whites, including those already legally residing in Britain, and, in arguing for preserving England/Britain as a legally homogeneous ethnic nation, expressed almost 50 years ago many of the feelings and resentments now animating supporters of PDM’s preferred candidate for President in 2016. That politician was Enoch Powell.

Whatever one might think of Powell — and my own feelings about him are a mixture of admiration and revulsion — he had a genuine commitment to the ideals of personal liberty and the rule of law, though those ideals, as he himself acknowledged, did not rank at the top of his scale of values. I mention Powell in this context because, in criticizing the concept of “voluntary” wage-and-price guidelines to combat inflation – a popular idea in the 1960s and 1970s —  Powell brilliantly described these guidelines as the “rule of the threat of law,” meaning that the government forced coerced businesses and unions to comply with its wishes, not by enacting legislation, thereby requiring compliance by the force of law, but by making it understood, either by explicit statement or by implication, that failure to comply with the guidelines would result in the enactment of legislation requiring compliance under even more onerous terms. This method of achieving policy objectives, by coercing members of the public, not by law, but through open or veiled threats, is the antithesis of the rule of law; it aims at coercing members of the public – businesses and workers – to take actions against their best interests by threatening them with even more unpleasant consequences if they fail to comply with requests or demands of government officials that have no legal standing.

Interestingly, when queried about not having paid taxes in past years, and about having sold products in the US produced overseas, and about having employed foreign workers in domestic construction projects, the PEOTUS pointed out that, in not paying taxes, in selling products in the US produced overseas, and in employing foreign workers on domestic construction projects, he had been in full compliance with the laws of the United States, so that he was only pursuing his own economic self-interest as he, a US citizen, had every right to do. However, the PEOTUS apparently now finds it intolerable that private business firms should make economic decisions in the interests of their owners in the way that he, by his own admission, had done when he ran his own business.

Unless Carrier, GM, and Ford and other businesses do what the PEOTUS wants them to do, they will suffer retribution; non-compliant companies are threatened with a 35% tariff applied on products they manufacture abroad. It is one thing to impose a tariff on imported goods in general; it is quite another to impose a tariff selectively to punish companies for taking actions in the economic interests of their owners of which the PEOTUS disapproves. That is precisely the rule of the threat of law against which Enoch Powell eloquently and rightly warned.

This kind of trampling on the rule of law is not what one would expect to occur in a Constitutional Republic. And remember, that according to PDM, it was with a view to preserving our Constitution Republic that he decided whom to support for President in 2016. So one can’t help wondering if PDM now feels that he has now been vindicated. Perhaps . . . if his idea of a Constitutional Republic approximates the idea of the state held by King Louis XIV.


About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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