Liberty Matters

Humboldt and What it is to be a Rule of Law Society

Michael Bentley states, “I neither believe that Humboldt simply failed (reasonably) to foresee later developments nor do I see – as I suspect Hartmut does – an historical ‘process’ that would lead inevitably to WEIRDness in modern society and into which Humboldt’s state needs to be enfolded.” 
When it comes to history Michael quite understandably sees whigs behind every bush. Yet, I am not wearing a whiggish hat but a critical rationalist wig. I am endorsing evidence-oriented explanatory efforts that are incompatible with uncritical trust in all three: historical determinism, teleology and expert judgment.[1] History is not heading like a horse to a pre-ordained stable. Neither does history unfold as an unbiased random march on an open field. As far as we can know, it unfolds along a trajectory which human actions can -- if mostly unintendedly -- as a matter of fact causally influence. Despite residual unpredictability lock-in effects will make certain historical trajectories more likely than other ones, and it seems that we might be able to learn something about these likelihoods.[2]
More concretely and closer to the main concerns of the platform on which this discussion takes place: after implementing federal institutions like those envisioned ingeniously by the American founding fathers it was more likely that rule of law would persist than after implementing institutions of a hierarchical unitary state organization.[3] The founding fathers speculated that this would be the case without tested empirical evidence that could support the implicit predictive “constitutional technology” presuppositions of their beliefs.[4] Yet, knowing more about causal co-factors we now seem to have some evidence-based reasons that have some explanatory force (and some is better than none). For instance, the early settlement by immigrants predominantly from Western Europe made the US trajectory certainly more likely than it would have been with immigrants from, say, Russia (or for that matter Spain or Portugal). “Bombastically” speaking, there are statistical identification strategies that provide some clues concerning possible causal influences in a stochastic causal model which render certain historical trajectories more likely than other ones. And, subscribers to ideals of the rule of law and liberty seem well advised to focus on the evidence.
Certain states of affairs including states of “state organization” become in a “probability enhancing sense” forerunners of later states of state organization. In that regard I take issue with Michael Bentley’s criticism of Hardy Bouillon, that “Hardy’s stiletto misses, for once, in saying that Humboldt’s state was a ‘forerunner’ of the modern one. I claim that it is better conceived as a different entity and that no historical configuration is a ‘forerunner’ of anything else.” There may not be logic in history, but certain empirical law-like regularities that justify using the term “forerunner” may apply.
That said, I believe that Michael raises a very important conceptual issue concerning qualitatively different forms of “state organization” when he writes that Weber “in announcing that states must be understood as agencies that possess a monopoly of force” distracted from the fact that states as we understand the concept of a state “need in fact to possess a good deal more; and the ‘more,’ I argued, came into being in the three generations after Humboldt’s death.” Michael’s criticism notwithstanding I believe that Weber rightly focused on the monopoly of violence (the translation of “Gewaltsamkeit” as “power” instead of the appropriate “violence” is misleading) and a credible threat to enforce the monopoly claim to the use of violence by an escalation of violence.[5] But Michael is right, there may indeed be something qualitatively new about our state as compared to Humboldt’s. It seems that “civilizing” violence within those states that by “historical accident” emerged in the 19th century as “inclusive rule of law organizations” in our Western sense took off fully only after Humboldt. It is our task to try to better understand the contributing factors if we are interested in preserving the prevalence of civilized threats of violence.
Here I tend to see Humboldt as endowed with a particular sensitivity for anticipating the unique historical “constitutional opportunity” that was vaguely on the horizon when he originally wrote his book.[6] The state that emerged in some societies may indeed be qualitatively different from all other forms of large numbers’ collective organization that emerged in human history before. As far as we know, it seems the only one that at least approximately solved the problem of “civilizing (state) violence” by politically creating a de-politicized private law society in which interpersonal externalities are overwhelmingly of the non-violent form.[7] That “The West” may seem on its way to put this greatest of its -- and as I personally believe -- all human achievements at risk because even its elites do not anymore understand the nature of the particular beast of “Western” rule of law is discomforting. At least before the apparently hopeless situation becomes serious, discussions like the present one need to be conducted.
[1] On expert judgment see Philip E. Tetlock. Expert Political Judgment: How Good Is It? How Can We Know? Princeton University Press, 2009, and since 1954 Paul E. Meehl. Clinical Versus Statistical Prediction: A Theoretical Analysis and a Review of the Evidence. Northvale, N.J.: Echo Point Books & Media, 2013.
[2] To illustrate, think of an “experiment 1” of drawings from an urn with a certain fixed number of red and green balls which are thrown back after each draw of a ball and then mixed before the next draw and an “experiment 2” of drawings from an urn into which after each draw of a green ball 7 green balls are thrown back and after each draw of a red ball, say, 17 red are thrown back and then mixed before the next draw. In the second urn model, the probabilities change along the path. Even though you cannot foresee which path will prevail you can say something about the likelihood of each potentially infinite path and the transition probabilities and probabilistic lock-in effects along it. Even if our knowledge of the real world would be best described as if we were facing the first urn model, we would be well advised to think of history rather in terms of the second (Polya) urn model while trying to learn more about likely and less likely trajectories whose specifics we cannot foresee.
[3] Acemoglu and Robinson are certainly right in pointing out that conditions in North America were not favorable for the establishment of extractive institutions but the cultural heritage that immigrants brought to the institutional founding table did in all likelihood matter, too; Daron Acemoglu and James A. Robinson. Why Nations Fail: The Origins of Power, Prosperity and Poverty. London: Profile Books, 2013.
[4] On “technology” in this context Hans Albert. Treatise on Critical Reason. Princeton: Princeton University Press, 1985.
[5] This is in a way the starting point of Douglass C. North, John Joseph Wallis, and Barry R. Weingast. Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History. Reprint. Cambridge: Cambridge University Press, 2013.
[6] Analogously, James Buchanan, “An American Perspective on Europe's Constitutional Opportunity“, Cato Journal, 1991, vol. 10, issue 3, 619-629.
[7] That this ideal of state organization was imperfectly realized and co-existed even in Europe with other forms seems popularly laid out for historical laypersons like me in Richard J. Evans The Pursuit of Power: Europe, 1815-1914. 1. Edition. London: Penguin, 2017.