New Concept: The Jurisprudence of “the Carrot and the Stick”
Vocabulary – Definitions:
Jurisprudence = Philosophy of Law
Carrot = Moral Authority / Perceived Legitimacy (인식정당성)
Stick = Coercive Authority/Coercive Force
Regime = Governing Legal Structure
Store = Reserves
The basic mechanism and how it functions:
Stick:
Coercive authority/coercive force is highly expedient to wield – meaning it works effectively and quickly. However, Coercive force is also extremely expensive to wield – and so over the long term, is not sustainable.
The more a regime relies upon coercive force, the sooner it will run out of resources.
- The more Stick (coercive authority) a regime uses, the less the store of coercive authority it has.
This is simple arithmetic: if I have 6 bullets, and I use 1 to exercise coercive authority, then I only have 5 left.
- The more Stick (coercive authority) a regime uses, the less Carrot (Moral Authority/Perceived legitimacy) a regime has.
- The less Carrot (moral authority/ perceived legitimacy) you have, the harder it is to replenish stick.
If I use 5 bullets, then I need to buy more bullets. To get the money to pay for more bullets I have to tax people. The less moral authority/perceived legitimacy you have, the more reluctant people will be to pay the tax.
- This is not sustainable.
- A regime highly reliant upon stick with little in the way of balance towards carrot, will quickly consume resources impoverishing its base and further undermining the regime’s moral authority/perceived legitimacy.
Carrot:
Moral Authority/Perceived legitimacy takes a long time to accrue – but it is very inexpensive to wield and therefore it is very sustainable.
Carrot:
- The higher a regime’s store of carrot the higher the regimes store of stick or potential stick.
- A regime with lots of carrot can request money to pay for stick and expect people to comply
- The higher a regime’s store of carrot the less likely a regime will have to use or rely upon stick.
- A regime with lots of carrot can make a request and people will likely comply without any recourse to coercive enforcement.
- The higher a regime’s store of carrot, the more likely a regime’s use of stick is viewed as valid.
- A regime with a high degree of moral authority or perceived legitimacy, when forced to use coercive force in specific instance will find little over all resistance to that use of force.
The wise legal system will try to align private action with public goals. For a wise legal system: moral authority arises out of a common, broad, sense of what constitutes fairness in norms. Sanctions exist to coerce those not persuaded by the moral authority of the legal system to nonetheless modify their behavior to be consistent with the public goals represented in legal norms.
The cost of applying sanctions is always quite high and prohibitive, so the success of any legal system over the long term is dependent on its ability to gain the broadest possible buy-in and acceptance as being fair, that is to say, having moral authority.
Example:
In 2001, the United States was the loan superpower. Ten years earlier the United States had made judicial use of force in freeing Kuwait from conquest by Iraq’s strong man Saddam Hussein. It limited its use of force to the liberation of Kuwait, and then withdrew its force. In the decade that followed the United States played a leadership role in bringing peace to Northern Ireland (the Good Friday accords) and then mostly, successfully, played a leadership role in bringing peace to the Balkan peninsula (in the former Yugoslavia) by judicious, limited use of air power and diplomacy, through the Dayton accords. At the same time, as the hub of a hub and spoke international economic system, the American economy was leading the world into a new era of prosperty. It was a mini-golden age driven by the wider inception of computer technology, which was also American centric.
In 2001 the United States was at, or near its peak, in the international community for moral authority/perceived legitimacy.
Then on September 11th, 2001, the United States was the victim of a monumental terrorist attack that destroyed the World Trade Center. The attack had been planned in Afghanistan.
The September 11th attack came at a point where the United States moral authority/perceived legitimacy was at or near its peak. Nearly the entire world pledged some form of sympathy or support for the United States, including otherwise adversaries, such as Iran. The United States then lead much of the international community in military attacks on Afghanistan.
Then two years later, the United States invaded Iraq on false pretenses – this had the effect of destabilizing the region.
A few years later the United States attempted to help re-shape Libya by participating in bombings that brought down the regime but left the country destabilized.
Finally, in 2013, during the Syrian civil war, after the regime allegedly used chemical weapons, the President of the United States, Barack Obama, attempted to rouse support for intervention against the regime. By that time American perceived legitimacy and moral authority had sunk so low that no foreign powers stepped forward to support such an action. At the same time there was also very little domestic popular support, either from the public or from politicians in the legislature, for armed intervention in the Syrian war. And so Obama chose to forgo taking any action in the Syrian civil war.
Essentially, over the course of 12 years, the United States use of coercive force had caused its moral authority/perceived legitimacy to decline that even close allies were no longer interested in supporting another attempt at the use of coercive force, regardless as to the validity of the cause for which the force was to be used. Roughly six months later another international crisis emerged when Russia invaded the Ukraine. In the diplomacy that followed, the United States was more successful at gaining diplomatic support against the Russia’s violation of Ukrainian territory in the creation of a regime of international economic sanctions against Russia.
Presumably, under the theory of the Jurisprudence of the Carrot and the Stick, the United States moral authority/perceived legitimacy had bottomed out in 2013. Perhaps by not intervening in Syria, despite what one could argue are some strong merits for doing so, the United States moral authority had recovered enough to allow it to lead an international coalition of economic sanctions against Russia for its violation of Ukrainian territory.
At the highest level, one of the most basic concepts of jurisprudence is that a successful governing regime or legal system constitutes some combination of the ability to issue sanctions on the one hand and the exercise of moral authority on the other: that is to say a sound regime or a complete legal system must constitute a “carrot and stick” approach.
Conclusion:
A sound regime or legal system will seek a balance between these two poles (but note, they are not symmetrical).
At the extreme we see the characteristics of regimes that are unable or fail to achieve a balance between the two poles which impairs the efficacy of the regime, which then confirms the nature of the two poles.
The United Nations represents a regime that has virtually no “stick”, that is to say, no sanctioning authority. As a result, the reception of norms proposed and/or promulgated by the United Nations is a ‘mixed’ success.
The United Nations in a sense is no different, in many ways, to any other governing body. If anything, the resort to the use of force is perhaps even more costly at the level of the United Nations because the legal implications of violating sovereignty of a nation state on the one hand and the logistics of marshalling such force on the other.
At the other end of the spectrum is a regime like the one in North Korea: it’s governance is tied mostly to the application of stick with little or no moral authority (it has tried to erect an ersatz doctrine for moral authority styled “Juche” which is an ideology based on self reliance for the state). As a result, because of the cost of enforcement of its heavy reliant upon “stick” North Korea is chronically impoverished.
(Much of North Korea’s income might actually be accrued through black market activities in things like drugs and munitions.)
In between the two extremes we find the broad majority of governing regimes and legal systems, which generally speaking, tends to have greater efficacy than those situated near one pole or the other. Success appears to rely upon achieving the best balance between the two poles.
HOW THE JURISPRUDENCE OF THE CARROT AND THE STICK HELPED CREATE THE MODERN AGE
The King’s Dilemma and the evolution of the Common Law
(King of Scotland) ç=====è (King in England) ç=====è (King of France)
#1) King must conserve the use of Coercive Force for use against other Kings
(Where does the money come from to fund the King’s wars? )
Feudal Structure
King of England
| Nobles:
| -Duke
| -Count/
| -Baron
| -Earl
| -Lord
| ============
| Common People (actual source of )
|—————>Farmer
|————–>Merchant
#2) So, the King (in England) must cultivate Moral Authority/Perceived Legitimacy
Note: The ultimate source of tax revenue are the common people. The King would like to bypass Feudalism so he would not have to share tax revenue with those below him in the feudal hierarchy.
The King’s Legal System becomes a way for King to have a direct relationship with common people and build his moral authority
The Judge’s Dilemma…
Principles for a legal system…
Jurisprudence: The Philosophy of Law ~ Theories of Law
| What does Jurisprudence demand from a legal system?
|
What does King want from a legal system? | What do People want from legal system? |
| 1) Efficacy: System must work
2) Consistency 3) Justice/fairness 4) Efficient/sustainable/cheap 5) Promote Peace 6) Power (coercive authority) 7) Moral Authority/Perceived legitimacy 8) Ethical |
1) Cheap Cheap Cheap
2) Order 3) Enhance his authority (moral or otherwise) 4) Efficacy 5) More money · More tax revenue, therefore · More wealth generally, therefore · Promote more commerce
|
1) Peace
2) Fairness/Justice 3) Liberty/Freedom 4) Ethics 5) Consistency 6) Respect for property rights
|
What must judges do? Who is their boss? What does he want? What do judges want? What priority do Judges give to the demands of jurisprudence/king/people?
General Narrative:
After the invasion of William the Conqueror, England was ruled by a French speaking aristocracy for the next 300 years. For most of this time the kings of England spent much, if not most, of their time fighting in France to defend or extend their land holdings there, quite often they were very successful. Henry II held title to more land in France than the King of France.
The kings left behind administrators in England to manage things. This would include the King’s judges. Early in the year, judges would mount a horse and ride a circuit (circle), a course that ran them out into the countryside and back to London again by years end. By-in-by the king’s judges would visit all the towns on his route, and hear cases and disputes.
The people of England in the middle ages had a choice of legal systems to hear their dispute. They could take their dispute to canon courts, law merchant courts (mostly applied to medieval trade fairs), their local lord’s court or present their case to the king’s judges when they came to town, just to name a few venues. Over the broad sweep of history, the king’s law, also known as the Common Law, emerged as the prevailing legal system.
The Cheap King Paradigm:
A king in Europe’s main concern was always going to be money. Europe was politically fractured. If a King failed to maintain a strong army he would lose his holdings to a foreign rival. Together with dynastic considerations, this would happen from time to time in Europe. Poland was dismembered in the 18th century. A near nation-state consisting of Burgundy, Loraine and the Netherlands nearly came together only dissolve in the 16th century. Various small states came and went in Germany and Italy. Ireland and Scotland struggled to maintain their distinction from England. So a king in Europe had to conserve money for the purpose of maintaining a strong army.
So when it came to administration, kings were cheap. Also, the wise king did what he could to promote commerce so as to increase wealth and therefore the tax base.
The Lazy Judge Paradigm:
Because king’s were cheap, the king’s judges then were overworked and underpaid.
In reaction to these conditions, you can think of the judges as being ‘lazy’. (More accurately they were trying to make their own job more efficient while increasing their productivity, while making it easier for them to do.) To facilitate their work judge’s restricted their role to finding the law, and delegated the role of finding the facts of a case to juries.
A judge would come to town, the people of the town would present their issues before the judge in the form of a question. If the question had never been asked before the Judge’s answer would be recorded in a book. That answer then became the law for whenever that context emerged. The new law would then be recorded in a book called a recorder, a copy of which each judge carried around with him as he rode circuit.
As judges were “lazy” they generally did not want to have to answer a “big question”: something like ‘what is love’ or ‘what is art’ or something vague like that. Judges would only entertain narrow or small or very specific questions. The judges were predisposed to answer only well articulated questions. This lead people to hire professional ‘question writers’, which is how the role of professional lawyers emerged in the Common Law system.
Once again, as judges were “lazy” they not only wanted a lawyer to present a well written and formulated question, they also wanted the lawyer to suggest a model answer. So by-in-by, legal memos evolved into a form of a persuasive essay where lawyers would present background facts, a well written question, and a discussion session of the arguments and conclusion suggesting an answer to the question that favored the lawyer’s clients.
As judges were lazy, they might rely upon the best legal memo to help them render an answer to the question.
As judges were “lazy” they generally did not want to have to answer a question if they didn’t have to. Before a judge would have to create a rule, they would check the recorder to see if some other judge had already faced the same or similar question. If they had, the judge’s would use the existing rule. This is called “stare decisis” (“let the prior decision stand”), the use of a precedent ruling.
In situations where the judge had to answer the questions posed by the litigants afresh, the judges then had to consider the competing and/or complementary interests of the king, the people (broadly speaking and narrowly speaking) and jurisprudence, as laid out above.
Jurisprudence demanded that the law have efficacy, there was no point in creating an answer that would be ignored or hated to broadly. The people’s natural interests were to seek peace first, fairness second, and liberty third. The king demanded answers that made the least claim upon his purse, on the one hand, and that helped facilitate increases in commerce and wealth and therefore increasing the tax base on the other hand. Judges, acting on behalf of the king’s interests then might reward industry at the expense of fairness. One example of this is the doctrine of “adversary title” in property law: a man that works land that is left fallow over a number of years gains title to the land on the basis of his occupation of it and the industry he applied to that land during his occupation, in part, because that industry created wealth and increased the king’s tax base.
Importantly, judges did not answer questions based upon ideology. They simply looked at the context of a given question (issue) and returned the answer that made the most sense given the context and the competing interests. As Oliver Wendell Holmes said in “The Common Law” judges were pragmatic: free to choose from the market place of ideas for an answer that best addressed a given situation.
As a result Common Law countries evolved into an ideological “patchwork”, embracing practically any and all ideologies, but only where the made the most sense, and ignoring any and all ideologies where they made the least sense. The strength and soundness of this system is probably what impelled England into becoming a global power far exceeding its size or geographical position (in a small, wet, windswept corner of the world off the continent of Europe).
PDF File: Ideology Matrix + Communitarianism versus Libertarianism
The Ideology Matrix – i.e. The Marketplace for Ideas – Page 1:
The Ideology Matrix – i.e. Communitarianism versus Libertarianism – Page 2:
The Jurisprudence of the Carrot and the Stick explain to us why wise monarchs in medieval Europe were cheap, or had strong reasons to be cheap (and unwise monarchs were not). English Kings from the time of William the Conqueror after 1066 until the loss of Calais in 1558, were constantly facing external competition in France from various contenders and from Scotland in Britain. So, English Kings needed a large army and navy. These things cost a lot of money. The threat from external competition necessitated a large army and navy, and that encouraged English kings to be cheap in all other areas of their administrative affairs. (Furthermore, the wise King should pursue accrual of ever greater Moral Authority/Perceived legitimacy in case he needed to turn to the people for even more money.)
Because king’s were cheap and judges were lazy, over the long sweep of time, judges developed a bias towards self enforcing decisions. A self enforcing decision is simply a decision that enforces itself. That means, the self enforcing decisions does not require the king to spend money from his purse, to send a soldier to a village, to force a villager to comply with a judge’s decision. Self enforcing decisions cost nothing to enforce. The more judge’s reached self enforcing decisions, the easier it was on the king’s purse. Further more, such decisions helped increase the King’s moral authority and perceived legitimacy.
Over the long sweep of time judges developed a bias, but only a bias, towards rendering decisions that had a bias towards fairness (high priority) and liberty (a secondary priority to fairness) simply because such decisions were self enforcing decisions.
In the process of kings being cheap and judges being lazy, judges invented a new concept in civics: liberty under the law. Essentially, liberty, but liberty subordinate to notions of fairness and other jurisprudential considerations. This is the modern concept of liberty: the grant of maximum possible personal freedom but only to where it does not conflict with other legal imperatives and only to where it does not conflict with your personal freedom; my freedom ends only where your freedom begins.
The invention of liberty under the law (liberty constricted by fairness) is an enormous and transformational development. Prior to this development, freedom or liberty meant everyone being free to do whatever they wanted, whenever they wanted, to whomever they wanted. In the course of events, only the strong and the powerful get to do what they want, and everyone weaker or less powerful becomes a potential victim. This is the primitive notion of “might makes right” or “the law of the jungle.” The last time freedom existed in Europe might have been in the brief span of time after the fall of Rome but before the emergence of the barbarian kingdoms. Humanity everywhere, since the dawn of time, had then expended great resources and endured great trials in an almost single minded pursuit of fairness to spare humanity from the cruelty of the law of the jungle. The concept of liberty under the law did not come from the minds of men, but evolved out of the cheapness of English kings and the lazyness of Common Law judges and the desire to reduce demands upon the king’s purse.
In the case of liberty, it turns out, as Adam Smith would eventually articulate, that liberty and economic productivity are highly correlated. So not only did decisions with a bias towards liberty not tax the king’s purse, it helped to grow the tax base upon which the king’s purse relied.
Out of the cheapness of England’s kings and the laziness of its judges, came the modern concept of liberty: liberty under the law. This in turn helped impel England’s economic development. Eventually this would lead to England arriving first at industrialization. The overwhelming efficacy of England’s cheap but functional system help promote Anglo-Saxon culture and its agencies to global prominence. People around the globe now value freedom, sometimes, having lost an understanding of how the modern notion of freedom emerged, at the expense of fairness and rule of law, which in turn threatens to destabilize modern society all over again – especially in cases where wealth becomes so concentrated it threatens to overturn all civic stability.
Because ideological issues were largely resolved in the judiciary in Anglo-Saxon societies, the main issue left to the political branch of government and civics is economics. (see “The Impact of Economics on Politics” in “How to run your country…” at: https://goo.gl/FT91dx). In turn, economics is largely a two dimensional field. The main issue in economics is which policy bias should a government pursue: demand or supply? This, in turn, explains how a two party system can function and function exceedingly well in a quasi-democratic system with an almost infinite amount of competing interests.
So, out of primitive, simple and austere set of circumstances, with the passing of time, Anglo-Saxon civics evolved into a very successful, going concern. There is one catch though. Anglo-Saxon civics only work well when people pursue their own interests: an in the political sphere of Anglo-Saxon civics, that means the pursuit of their own economic interests.
(In the case of the United States, which uses its own version of Anglo-Saxon civics, the rich have been highly successful in the pursuit of their interests: which is the capture of more and more of society’s resources. [See the Crocodile Jaws Graph on Wealth Distribution – not yet created]. Their success was born on convincing many groups to vote against their economic interests. They do this by convincing many people that politics is about ideology and ideological issues. (This is mostly true in Civil Code countries where the tradition is for legislatures to create law instead of judges.) So the American rich get people to vote against their economic interest by getting them to think that they are voting for their ideological interests. As a result American society is becoming increasingly unstable as wealth concentrates and the interests of deconcentration are suppressed.
Compare Common Law tradition’s Civics with Civil Code tradition’s Civics.
Modern Civics Made Easy 