by Laurent Dobuzinskis
Recovering ancient ideas with the hope of applying them to contemporary realities is an exercise fraught with daunting challenges. What made sense in a distant past, under circumstances we cannot fully apprehend, is difficult to translate in a modern language or to compare to contemporary practices. Eudaimonia, for example, does not mean what “happiness” stands for today. As Benjamin Studebaker explains in a previous issue of this journal, isonomia should probably be understood as meaning both a sort of passive equality before the law—the law should give every citizen an equal status—but also as a more dynamic principle that confers an equal right to actively participate in the formulation of the law (self-governance). The latter justifying the former: it is because the law is freely made by the citizens that they can be satisfied that it applies to each of them fairly, that it does not arbitrarily create differences that they would not themselves accept. Rules for enforcing established rights must be balanced with the exercise of these rights by active citizens intent on addressing new challenges. (I sidestep the question of whether it is appropriate to use the vocabulary of “rights” when looking so far back in time, but I note in passing that a side-effect of the recent rediscovery of isonomia has precisely been that whether something like the concept of rights informed the political thought of the Ancients has once again become an open question.) Space lacks here to examine in detail all the implications of this dilemma but I wish to briefly highlight the most salient ones.
One challenge is obviously that self-governing majorities may not be motivated to treat everyone equally. The second is that even if in principle a self-governing polity gives everyone the same right to participate, many will not have the effective capacity to do so. This is the aspect of the problem that I intend to zero in on in this article, by considering in particular how the problem is posed in contemporary societies, and to critically evaluate recent theoretical answers. But the two problems are intertwined. There is always the possibility that the attempt to empower those who arguably deserve to be empowered may pose a risk to the principle of equality before the law itself. And this for two reasons. One being that the means of empowering certain groups may threaten fundamental liberties; the other being that even a more inclusive majority is still a majority and, as such, may cause harm to the well-being of some other minorities.
That the law can fall short of being a venerable and majestic institution, merely reflecting the partisan interests of a partisan majority, let alone those of an oligarchy or tyranny, is a problem as old as political philosophy. Plato used the Sophist Thrasymachus as a foil to demolish the idea that justice—presumed goal of any legal order—is what those in power decree it to be. Brilliant as Plato’s refutation appears to be, it rests on some questionable assumptions, including of course the possibility of ever acquiring a perfect mastery of the art of governing. This being said, cynicism about the purpose of the legal order is indeed something that must be denounced as being ultimately self-defeating; critique for the sake of critique leads to a nihilist, passive resignation in the face of injustice. In an open-ended society where privileges are not cemented into existing institutions, fluid majorities can be formed that can be trusted to enact workable laws. According to Kojin Karatani, democratic Athens, which is usually associated with the concept of isonomia, was actually less truly isonomic than the Ionian cities that flourished about two centuries or so before Pericles’ foundational regime. That is because in these Ionian cities one did not find solidly rooted aristocratic clans that could dominate the democratic process. Moving forward to the present, plutocratic interests are indeed a menace to democratic politics but also to the very ideal of freedom of opportunity for all in the marketplace.
The next section analyzes the rule of law in its more passive sense (i.e., experiencing equality before the law), using the lens of Hayek’s discussion of this concept. Then I move to the challenging issue of legitimizing the rule of law by means of more or less active forms of participation in democratic politics and/or civil society. The concluding section briefly sketches out a pragmatic synthesis of these perspectives.
Isonomia as the Rule of Law
The rule of law is a complex and contested notion which can be interpreted as supporting more or less egalitarian or progressive ideals and more or less conservative justifications of a classical liberal political order and its socio-economic counterpart. It can be defined in more or less substantive terms or in more narrowly procedural terms, depending on whether one is more concerned with the contents of the “law” itself or with “the rule” (or more precisely set of rules) that guide the formulation and enforcement of “the law.” These differences in emphasis bring about different degrees to which isonomia includes isokratia—that is to say, the degree to which it emphasizes equality before the law and equal participation in enacting or enforcing legal rules. I hereafter use F.A. Hayek’s treatment of this subject as an illustration of the merits but also the limitations of a passive conception of the rule of law that ignores or sidesteps isokratia.
In retracing the history of “isonomy,” the term coined in Elizabethan England to recapture the meaning of the Ancient concept of isonomia, Hayek did acknowledge the double connotation of that term, as signifying both equality under the law and “participation of all in the government.” But he showed little interest in exploring the potential benefits of the latter and painted a bleak picture of the influence of rationalist radicalism on democratic politics and the growing threat that the latter has posed to the rule of law as a guarantee of individual freedoms. Democracy and the rule of law were meant to be mutually reinforcing in Ancient Athens but in the modern age they have become antagonistic to each other.
Hayek is certainly right in insisting that the rule of law is the indispensable foundation of a regime of liberty, but he reached a definition of “law” that is singularly divorced from the ideal of self-government. This is evident in the contrast he sets up between nomos and taxis. The former is a legal order that has not been purposefully designed but has evolved more or less spontaneously in a way that fortuitously happens to protect property rights and other liberties. (Hayek certainly owed a debt in that regard to David Hume’s evolutionary account of the origins of private property and to the thinkers of the Scottish Enlightenment whose paradigm of spontaneous order can be applied to the analysis of a wide range of phenomena, from language to economic life.) Hayek used the English common law to illustrate the spirit of nomos but more because it operates as the most evident manifestation of a tradition of liberty than because it’s technically based on stare decisis.
“Law,” in the Hayekian rule of law, is a set of traditional norms, values, and historical practices that, especially in the case of the Anglo-American world, consists of prescriptions against the arbitrary use of the coercive power of the state to infringe upon the citizens’ enjoyment of their (negative) freedoms.
Taxis consists of an ensemble of coercive measures intended to bring about specific outcomes. Although a legislative assembly can occasionally legislate in a style that is closer to the spirit of nomos than of taxis (this is what the Public Choice literature discusses under the rubric of “constitutional politics”), in most cases legislators/policy-makers enact legislation that aims at realizing a positive effect (e.g., lower environmental risks). In doing so, they typically create different benefits for different categories of citizens. At first sight, this exercise of the sovereign power of the modern state departs significantly from the logic of isonomia, i.e., treating citizens as equals. (A plausible argument can sometimes be made that to rectify past injustices it is justified to provide the members of certain groups, and most notably indigenous people, with resources or prerogatives they were unfairly deprived of in earlier times; but in the eyes of an increasing number of people the contemporary “politics of identity” has pushed this argument beyond reasonable limits.)
Hayek’s stark contrast between the law of liberty, which protects all against meddling legislators pursuing goals that are unlikely to be reached, either because the goals themselves are unrealistic or because they depend for their realization on having access to the sort of complete knowledge of the relevant facts that no institutional actor possesses, is overblown. Hayek himself grudgingly came to admit that much. I don’t have the space to elaborate on all the justifiable critiques one may want to raise. But a few key points will suffice for my purpose here (which is to articulate a defensible account of isonomia in contemporary times).
Let me begin with normative foundations of the “law of liberty.” The first is that the “traditional” values Hayek has in mind probably reflect more a nostalgic longing for a Whiggish worldview than a living tradition shared by a large proportion of the population. There does exist a large consensus that freedom is a core value of modern societies. But the way in which people define or understand freedom is complex. Liberty in a classical sense survives because it is often perceived as the corollary of property rights whose legitimacy, however, depends on the concurrent entrenchment of other, more positive, rights to protection against some of the (at least perceived) detrimental effects of economic liberty on inequality, precariousness, pollution, etc. In other words, if economic rights and liberty-as-non-interference was solely dependent on a firm and unflinching commitment to libertarianism (or even merely Whiggish beliefs) in public opinion at large—as opposed to a small group of true-believers—they would have long ceased to be upheld by the institutions of liberal democracies. Indeed, liberal democracies are not characterized by a single “tradition” but by constantly re-negotiated compromises among competing groups; classical liberal values endure because they are included in such delicate trade-offs among business interests, organized labour, environmentalists, the administrative state, etc. (or what Richard Wagner calls an “entangled political economy”).
Of course, one might lament that classical liberal values have not fared all that well in these compromises, even though they arguably have become stronger in recent decades as compared to the heydays of Keynesianism. But my point is that there is a difference between understanding the traditional origin of liberty and the way it is actually upheld nowadays. Hayek concedes that much by i) acknowledging that legislative acts might be required to adapt the law of liberty to changing circumstances; and ii) the state cannot justifiably refuse to provide essential public goods, nor can it justifiably refuse to assist individuals or households whose income level remains below what can be considered a minimally decent standard of living when they are unable to achieve such a level on their own. Two points of clarification need to be added here. The first is that Hayek insists that the state should never be allowed to have a monopoly in the delivery of the public goods it provides; the idea here is of course that a healthy competition between the public and private sectors with respect to health, education, etc., works to the advantage of all. The second is that although the level of income assistance Hayek has in mind is rather minimal, it need not necessarily be pegged at the lowest possible level.
I see two problems here. The first is that for all the precautionary qualifications with which Hayek advances his otherwise convincing ideas, he offers no principled rule that could prevent the sort of slide into “serfdom” at the hands of an interventionist state that he himself famously warned against. The second is that he says nothing about how, and the degree to which, ordinary citizens should be involved in the formulation and implementation of the limited legislative interventions he concedes are required. Searching for answers to these admittedly daunting problems depends in large measure on a rediscovery of isonomia as a complex idea that subsumes isokratia. I develop these answers in a little more detail in the last sections but let me first briefly outline the core of the argument.
Because Hayek—but for that matter most economists and social theorists—approached the question of balancing liberty with equity in terms of finding an equilibrium between economic efficiency and avoiding unsustainable patterns of income distribution, he neglected the question of how assets can be fairly shared. I suggest that paying more attention to the latter goes a long way toward finding more convincing solutions to the question of how to avoid creating inequalities that are so deep that they seriously endanger the legitimacy of free markets and the socio-political institutions within which they function best. A fairer allocation of assets/wealth should a) make markets work better for all, thereby reducing the demand for income assistance; and b) a fairer allocation of resources should empower citizens in ways that one hope would make them take their responsibility as citizens more seriously, thereby making participatory democracy (or some realistic approximation of it) safer for the cause of liberty. I elaborate on these points in the following section.
Isonomia as Isokratia
Since the early decades of the 20th century, the characteristic response of liberal democracies to the legitimation problem posed by socio-economic inequalities has consisted of the defence of the welfare state. The New Deal in the United States was historically the first major move in that direction but in the second half of the 20th century, all western liberal democracies set up their own redistributive systems. The panoply of increasingly more complex, not to mention costly, social policies that make up the welfare state have come under more and more intense scrutiny in recent decades. The criticisms—which I briefly discuss hereafter—suggest that there is a strong case for attempting radical reforms. Indeed, I propose an alternative which is arguably not only more efficient but more consistent with the very notion of isonomia. That is to say, I propose to substitute “predistribution” for the redistribution; building wealth across all classes and categories rather than redistributing income is what is at stake here.
But the welfare state is not on the verge of collapse and it is crucial to understand why it is so firmly entrenched in liberal democracies or, more specifically, in regimes resting on two pillars: the politico-legal pillar of the rule of law and the economic pillar of the competitive market economy. The welfare affects these twin pillars in paradoxical ways. On the one hand, as classical liberals and libertarian critics have aptly argued, the welfare state undermines the rule of law and places a heavy burden on the economies of liberal democracies by saddling them with an enormous debt burden. And yet, it fulfills an indispensable function in legitimizing liberal democracies and economic competition. The point is simply that the emergence of the generic welfare state—regardless of the specific models observable in North America, Europe, or Australasia—appears to have been an almost inevitable development. But that does not mean that in its present form it is or should continue to be the only substantive way of lessening, and thereby legitimizing, the socio-economic consequences of competitive markets and a classical liberal interpretation of the rule of law upon which markets depend for their efficient functioning.
A long list of theorists, from T.H. Green to Leonard Hobhouse to Herbert Croly to Ronald Dworkin to Richard Arneson, have advanced that argument. Due to space constraints, I just wish to add a few remarks about Hobhouse and Dworkin. For Hobhouse, the challenge was to convince his fellow liberals that mandating the state to achieve some measure of distributive justice was not only consistent with liberal principles but necessary to address the problems of the industrial age. He built his arguments on Mill’s political economy—taking advantage of Mill’s reputation as a defender of liberty, while at the same time drawing from Mill’s reflections on self-development his inspiration for seeking the practical means of equalizing opportunities for all. Dworkin, on the other hand, devised a clever argument for justifying something that looks very much like the U.S. or Canadian welfare state in terms of setting up an insurance scheme against “brute luck,” that is to say unforeseen circumstances that, through no fault of their own, leave people unable to adequately take care of themselves and their dependents. Using an admittedly rather contrived initial hypothesis, Dworkin claims that there would be a consensus for the adoption of this scheme. What is clear is that today no consensus could be found for dismantling the extant welfare state.
Jürgen Habermas offers a more qualified and critical defence. Habermas thinks that the philosophical justification of the welfare state must ultimately rest on the ideal of participatory democracy. Any existing welfare state will be more or less legitimate in accordance with the degree to which this ideal is realized. This argument is not inconsistent with the notion of an active isonomia, although Habermas does not use the term. Citizens must be empowered to influence or guide the implementation of the legal and administrative attributes of the welfare state. The aim here is to attain some sort of balance between the private autonomy citizens enjoy in civil society and the public autonomy they experience through the practice of democratic politics; it being posited that these two ways of achieving autonomy are co-dependent. Free and autonomous individuals, through their participation in democratic politics, must given the resources they need to perform well in civil society, but their identity as active citizens should not require that they surrender their autonomy in the private sphere. I accept this line of reasoning, but I argue that the redistributive policies that define the welfare state are not the best means of achieving this delicate balance.
To sum up, the welfare state contributes to legitimizing the rule of law in two overlapping and yet distinct respects. On the one hand, by smoothing out income and other material inequalities that are the inevitable side-effects of free markets, it makes the rule of law more acceptable. The rule of law protects formal equality in general and property rights in particular. The welfare state reduces the social frictions that are likely to result from coming to grip with the bitter irony implied in Anatole France’s remark that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” On the other hand, the welfare state legitimizes isonomia in its more active sense by giving citizens the means to take part in democratic debates concerning the adjustments of the legal system and its implementation by a cumbersome administrative machinery. But I argue that in both respects the redistributive welfare state is less efficient than an alternative assets-based or predistributive approach.
The welfare state appears to have become less and less good at remedying injustices in a fair and efficient manner. One reason being its formidable fiscal cost and the impact it has had on the sovereign debt of major economies. (Space again lacks here to go into the details but it is an incontrovertible point.) There is also growing concern about the deteriorating quality of service, especially in health care. Another challenge is that the welfare state is failing to meet the needs of an increasing number of marginalized communities (homeless, individuals suffering from mental illness, substance abuse, and so on).
Important as these empirical considerations may be, they are not the main reason why, from the normative standpoint of isonomia, the welfare state needs to be rethought. The welfare state addresses the symptoms of unequal political capabilities but not the causes. Redistributing income provides a floor below those who suffer from the consequences of the aforementioned “brute luck” (e.g., laid-off employees, individuals with temporary or permanent disabilities, etc.), but the extent to which these gains empower them to play an active role in politics, civil society, or competitive markets is limited. What they lack is wealth which can also be said of those who enjoy a little more than minimally sufficient income but do not own assets that would provide them with the means to plan ahead, to act as self-standing citizens (e.g., owning a house, savings, stocks and bonds, etc.). Self-standing individuals have a stake in their communities and are motivated to remedy inequities or advocate necessary corrections without being tempted to overthrow “the system.”
Contemporary scholars have shown a great deal of interest in “asset-based” social policy initiatives. But the idea is certainly not new. It can be traced back to the agrarian reforms of the Gracchi brothers in the Roman republic who fought for the ideal of redistributing public lands to landless peasants. Land reform ever since has always been associated with the ideal of building more stable democratic institutions even though history has shown that the path toward that goal is fraught with complex problems: the Scandinavian countries managed these obstacles peacefully in the 18th and early 19th centuries, thereby building a foundation for their success as well-functioning democracies in the 20th century, but Latin America offers many examples of more intractable conflicts over land and natural resources.
The fairer allocation of land assets in a modern industrial or post-industrial society are only one piece of a far more complex puzzle. To simplify things, predistributive approaches can be categorized as follows: on the one hand, we find proposals designed to assist capital poor individuals or households in acquiring tangible assets; on the other hand, we find proposals intended to equalize opportunities for developing and fully taking advantage of one’s “human capital” (skills, talents, creativity, etc.). There is no space to examine these proposals in detail. As examples of the former, I can cite Ackerman and Alstott’s “stakeholder grant” which they suggest could enable young adults to start their productive lives with the equivalent of years of savings. One can also point to various—regrettably not always successful—attempts at facilitating access to home ownership.
The second strategy also includes a wide range of institutional reforms. I want here to briefly zero in on the ideal of employee-ownership. The concept can be traced back to Pierre-Joseph Proudhon or, rather paradoxically, John Stuart Mill. Both theorists used the label “socialist” to characterize their visions of a society in which workers-owned cooperatives would be the most common pattern for organizing production and distribution. But the contemporary theorist David Ellerman categorically rejects this label in articulating his own plan. Indeed, the ethical argument he offers in defending the democratic control of most firms by their employees is closer to Locke than to Marx or any other advocate of socialism. In essence, just as one is not morally entitled to sell himself or herself into slavery, let alone alienating one’s own conscience, one cannot “rent” one’s creative abilities to an employer. The only ethically justifiable use of these self-owned talents is to control the ways in which they are put to use in any enterprise.
Even considering that Ellerman does not advocate the dispossession of the “owners of capital” but merely altering the nature of the contractual arrangements that assign to them rather than to employees the effective control of firms, the realization of the ideal of economic democracy could take a long time. Indeed, Mill’s prediction that in the long run, i.e., by the end of the 20th century, cooperatives would have become the dominant form of ownership and control has proven to be based on a false hope. An interesting and more realistic approximation of the ideal is the German system of co-determination which allocates half of the seats on the boards of medium-sized and large corporations to employees; this practice could advantageously be extended throughout many liberal democracies.
More Pragmatic Variations on a Theme
To sum up, isonomia can be understood in more or less passive or active terms. Depending on whether the focus is on the enforcement of the rule of law or its continued adjustment to changing circumstances. The latter contributed to legitimizing the ideal of liberty as an act of constantly creating and re-creating the political and socio-economic conditions under which the rule of law is upheld, thereby, under the best of circumstances, buttressing free markets and entrepreneurial initiatives but sometimes at the risk of deviating from that path. Classical liberals must engage in political debates in a pragmatic way to prevent such deviations without, however, appearing to negate the democratic impulse to remedy the injustices that often follow from a merely passive acceptance of the existing order.
As I suggested, there are a number of proposals on how to effect a transition to a political economy in which individuals are empowered and, as such, are more capable of acting as free and autonomous citizens and moral agents actively contributing to the realization of the ideal of isonomia. However, a sceptical observer would be justified in remarking that the practical feasibility of many of these proposals is rather tenuous. To address this concern, I propose to follow in the path already opened by the “civil economy” school of thought. This approach originates in the Italian civil economy tradition going back to Antonio Genovesi, but it has been modernized by contemporary economists, most notably Luigino Bruni1. I cannot discuss all its theoretical and applied components but, in essence, it consists in adopting a perspective whereby myopic self-interest is replaced by enlightened self-interest. Consequently, reciprocity becomes the lever that can transform socially ineffective interactions into more virtuous ones.
But the key point here is not that we ought to become more other-regarding. It is rather—and this is crucial—that actual human interactions already fit that mold (behavioural economics and other parallel explorations have powerfully contributed to our awareness of this reality). Legal scholars, political economists, and other scholars could benefit from paying more attention to reciprocal interactions because they offer a more truthful lens on what is going on than many of our current models. To come back to isonomia, the lens of reciprocity can be expected to reveal all sorts of large as well as small scale exemplars of reciprocal engagement (e.g., within firms, local communities, etc.) that could be used by social and political entrepreneurs operating in different contexts to effect a shift from cumbersome redistributive schemes to more polycentric and adaptive predistributive practices which do not all have to be as far-reaching as doing away with the control of firms by financial institutions. Such practices, I insist, constitute the best means of legitimizing the rule of law in the eyes of moral agents who value their own contributions to politics and civil society.
NOTES
- see, for example, his 2012 The Genesis and Ethos of the Market and his 2016 Civil Economy Another Idea of the Market (co-authored with Stefano Zamagni) ↩︎
Laurent Dobuzinskis is an Associate Professor of Political Science at Simon Fraser University. Send him mail.
Isonomia Quarterly 