Ideas Untrapped

Human cooperation has been one of the most common human experiences, yet one of the most contentiously debated. For some, human cooperation is a unique moral achievement given our multitude of interests and differences. Others proclaim that we are ‘‘selfish’’ individual utility-maximizers - and cooperation is only achieved via separate institutional arrangements. Researchers on human behaviour and biology are also divided on whether our instincts for cooperative behaviour originated from individuals or groups. Hence, it was refreshing to read an account of human cooperation that does not pretend to settle these debates but transcends them by placing cooperation in the mix of other natural human instincts. In her book, The Social Instinct, Nichola Raihani - a professor of Evolution and Behaviour at University College London - traces the trajectory of cooperation from the microcosm of cellular organization to the complexity of human societies. In this conversation, I explored most parts of her book, and what motivated her to write it now.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com

Welcome to another season of your favourite podcast! We are starting off the season by exploring the many explanations of The Industrial Revolution with economic historian and writer Davis Kedrosky. You can learn more about Davis' work from his excellent newsletter here. You can also listen to this podcast through all the other options here. The transcript of the conversation is below.

TRANSCRIPT

Tobi;

So briefly, what is the Industrial Revolution? And what is its significance? I mean, we've all seen the charts, you see these different trend lines charting world living standards from the Middle Ages, and then somewhere in the middle 18th century, there's this huge jump, you know, that is generally termed as around the time the Industrial Revolution started. So what's the Industrial Revolution, basically? And why is it significant?

Davis;

Right. So I guess what you've asked here is two impossibly three questions. So what is the Industrial Revolution? The Industrial Revolution is actually multiple events, which is the bad historian answer. But essentially, you first have the British Industrial Revolution. This is a period that starts around 1760 and continues for about a century until 1860. That's sort of the standard periodization and basically consists of the structural transformation of one economy, the British economy, from a largely agrarian country to one based on manufacturing, especially in a couple of key sectors, those being textiles, iron, and various types of steam goods.

So this event is transformative in a number of ways. It's not transformative, in that it brings about a titanic increase in living standards. Because really, for most of the period, living standards in Britain do not rise. It's significant because it is really the first true stirring of economic dynamism anywhere in the world, with the possible exception of the Netherlands in the 17th century. But in this case, in Britain, the industrial revolution is truly sustained.

And that brings us to the second part of the question, what is the Industrial Revolution? Because there's first the British Industrial Revolution, and then a European and then a Global Industrial Revolution. By the middle of the 19th century, the technologies that sustain the British Industrial Revolution are spreading to the European continent, and Britain's rivals - France, Germany, parts of Eastern Europe, and Northern Europe and southern Europe - are all starting to take part.

And this becomes a continental phenomenon. And this is occurring toward the middle and the latter half of the 19th century, eventually spreading to North America, and is based on new technologies. Primarily based on the application of science to the growth process. And this growth, unlike, perhaps the British industrial revolution, and certainly unlike any growth episode in world history was sustained. Because we are where we are today.

It was the beginning of modern economic growth. And so that actually gets into why this episode is significant because it is the spontaneous transformation of a largely stagnant, slow-growing economy, perhaps less so in Britain, but certainly the case in Europe and the rest of the world until something that increasingly approach the relatively rapid pace that we're seeing today, and learn to apply technological advances in a consistent fashion to the improvement of human welfare.

Tobi;

I'm curious, yeah, like you said, the data is usually put somewhere around 1760, to about 1860, for the first Industrial Revolution. Why did it happen when it did? Because usually, you get two sides of this story, where some scholars will argue it was a really long, slow buildup; while you get the impression from some other scholars that was a sudden discontinuity from a previous, longer trend. So why that period in time, what was different?

Davis;

If I said that I believe that the Industrial Revolution was a discontinuity from a long trend, I would have historians barking at my door for the next year, and I, you know, might not ever have a career in this discipline. But what I will say is that there are a number of theories about why the industrial revolution happened and how it happens. And this paints me as a historian, but I think it's sort of irresponsible to settle on one. So I borrow from all of them. But I'll just, you know, for the benefit of the listener, I will lay out as many as I can, that I think are relevant.

So I guess in the classic phase of the debate, starting in the 19th century when people realize starting with people like Karl Marx... realized that the changes that had been occurring over the previous century in the economy of Britain had been of truly historic magnitude.

Two competing theories for why the industrial revolution happens: and I'm borrowing from Deirdre McCloskey here - the conservative approach, which is to say, basically capitalists saved, they were frugal, they built up a larger capital stock, and eventually learned to make whatever gains and growth that they were achieving self-perpetuating. And of course, more capital per person means more productivity, more productivity means greater income per head. So that's the conservative interpretation.

The Socialist interpretation is that of Marx, which is that the industrial revolution is based on expropriation, that a process of force was involved in first, the primitive accumulation of capital by capitalists and by capitalist farmers; in dispossessing the peasantry from the countryside and driving them into the factories where they could serve as low wage labour. This increase the profits of the capitalists, and in turn created the self-perpetuating growth process that we are observing continuing today.

Both of those continue to be influential, and certainly, their strains have been incorporated into the modern economic history discourse. But so far as we're concerned in talking about economic history, I think that there are really three main theories. And so one of them is definitely the slow growth over time take. And that's the unified growth theory of people like Oded Galor and David Weil, and they essentially argue that an evolutionary process occurs over time whereby a combination of selection and population growth leads to the accumulation of technologies, increase in the rate of innovation.

And then this innovation in turn leads to economic growth. And that is also abetted by fertility transition, such that population growth is no longer correlated with economic growth. And that leads to a growth in income per head. Then we have... I think it's about the same year - the end of the first decade of this millennium, we had two theories that have really transformed economic history come out that really set the terms for the causes of the Industrial Revolution debate.

The one that's been, I think, most influential among economists is that of Bob Allen. And in his book, The British Industrial Revolution and Global Perspective, he argues that Britain had a unique combination of factor prices - that wages were extremely high in Britain, and capital and energy were extremely cheap.

And so what this led producers to do was to substitute labour for capital and also make innovations that would have this labour-saving effect by using lots of capital and energy. The prime example is the steam engine, which used cheap British coal to perform the work that would otherwise have been performed by muscle power. And so the continual creation of these labour-saving inventions is sort of the basis for the Industrial Revolution and increases worker productivity.

This is the Allen theory. The Allen theory has received some very strong critiques. People like Jane Humphries and Judy Stevenson have really attacked the empirical basis of Allen's work. They've suggested that wages in Britain were not nearly as high as Allen had computed and that his series made some improper assumptions that led it to be inflated and this really changed the sorts of profits to technological innovation that Allen had to suppose would be driving this process.

And so that's where the Allen theory stands today. It's sort of the cleanest mechanism for describing the industrial revolution in an economic sense, but it faces some factual challenges. The other one that occurred about the same time is that of Joel Mokyr. He wrote a book called The Enlightened Economy, I believe in 2009, in which he argued that it was rather ideas rather than economic incentives that led to the transformation of Britain.

That it was industrial enlightenment that occurred, and a culture of improvement that swept Britain and led many people of the intellectual class of the country to start taking an interest in practical matters, devising innovations that would improve society, that would make doing practical tasks easier, and then crucially, sharing them with the people around them in a sort of Republic of Letters - in which intellectuals across England and across the continent all communicated to iterate upon each other's technical ideas.

And this, in turn, provided the creative spark for modern economic growth and crucially incorporates the sort of scientific aspects that is the foundation of the second or European Industrial Revolution. These are the two main competing theories and people like Nicholas Crafts have attempted to synthesize them into a single argument suggesting that, you know, one explains the demand and one explains the supply of inventions. But others hold that they're incompatible. But you can kind of pick and choose your favourite aspects as Crafts did.

Tobi;

Yeah, I mean, I get that. But from a global perspective, you're looking at other parts of the world like India, Africa. There are other - I'd say, maybe within the economic history profession - not so popular, but quite popular with the lay public. For example, the institutionalist view of Acemoglu and Robinson who claim in their book and also in some of their papers that the Glorious Revolution laid the foundation for the Industrial Revolution. That's one, I'll like you to address some critiques of that. And secondly, what's the difference between Galor's Unified Growth Theory and sort of the Neo Malthusian story that people like Gregory Clark are constructing?

Davis;

Okay, I'll start with the Acemoglu and Robinson theory about the Glorious Revolution. So [what] they essentially argue is that the Glorious Revolution is a watershed event that turns England into a participatory democracy, in which people are free to possess, transfer and use private property without fear of expropriation from the supposedly tyrannical monarchy that existed beforehand.

And in the institutionalist view, the security of property rights and participatory democracy are both crucial for economic growth because they allow people to transfer assets to their most productive uses. And these sort of efficiency gains also lead to investment and modern economic growth is supposed to follow from that.

Yeah, so Acemoglu and Robinson are sorts of making a distinction between inclusive and extractive institutions. Extractive institutions are supposed to be the sort of, European and broadly global pattern whereby elites have no incentive to promote economic growth and do not allow participation by the common citizen in the political discourse. Whereas inclusive institutions are very much the exception but are established in Britain in the sense that I've previously described, in both the economic and political spheres.

They allege that, and I quote, "the industrial revolution started and made its biggest strides in England because of her uniquely inclusive economic institutions. These, in turn, were built on the foundations laid by the inclusive political institutions brought about by the Glorious Revolution, and that they gave man of talent and vision such as James Watt, the opportunity and incentive to develop their skills and ideas and influence the system in ways that benefited them and the nation".

So yeah, that's the Acemoglu and Robinson view. Um... I'm not so fond of this one.

Tobi;

Why?

Davis;

I have to be careful because there are many people who see a sort of, attack on Acemoglu and Robinson, or even a critique of Acemoglu and Robinson as a critique of institutionalism itself, and I am by no means an anti institutionalist. Because I mean, it's painfully obvious that institutions are extremely important in explaining differential development.

But some empirical flaws with the Acemoglu and Robinson contention, especially in its "Why Nations Fail" iteration is that the Glorious Revolution really didn't actually bring about the sort of sweeping political changes that they suppose occurred. British Parliament was still corrupt, the electorate was tiny and dominated by landed elites rather than merchants. Certainly, industrialists come [in the] early part of the 18th century. So those sorts of sweeping changes couldn't really have had a very big influence on the beginning of Britain's economic transformation.

Second of all, Parliaments just do not guarantee economic growth anyway, there are plenty of examples of Parliaments filled with wealth holders and merchants who use their political powers in order to just extract rents from the economy at large. So this happens in places like Poland, for example, where parliament is so strong that the ruler cannot issue any legislation without its consent. But that power is then used by the Polish parliament to support the feudal rights of landowners over their serfs and that leads to agricultural stagnation rather than economic growth.

So parliament is not necessarily the keystone of economic transformation. Finally, private property in England was already quite secure by the time of the Glorious Revolution. And that event did not bring about any kind of radical transformation in the way that property was treated in England. The Bill of Rights that was passed in 1689 did not impose any limits on Parliament's ability to confiscate property.

So you basically see the replacement of the monarch's despotic power over property such as it existed, which was in curtailed form by Parliament. So it's not clear to me that you can attach an economic discontinuity to a political discontinuity in this way. I mean, indeed, in the century following the Glorious Revolution, there really isn't an economic discontinuity.

There is perhaps an acceleration in the rate at which the British population is moving out of agriculture, but that had been occurring for over a century in Britain. Those are some of the main difficulties with the Acemoglu and Robinson theory. Then I believe you asked about...um...

Tobi;

Yeah, Greg Clark and...

Davis;

Right. So this is not an area that I've really worked with very much. And by the way, there are a number of iterations on the Unified Growth Theory. But as best as I understand it, unified growth theory is concerned with the sort of, the transition between a Malthusian regime and a post-Malthusian regime through the lens of the demographic transition and the returns to innovation.

And in their model, population growth tends to increase the rate of technological progress, and technological progress, in turn, increases the returns to investing in human capital. And there's sort of a positive feedback loop between investment in human capital and the rate of technological growth, which has the additional effect of decreasing fertility and a sort of quality versus quantity trade-off.

Clark's hypothesis is a little bit different. So Clarke, as I recall, argues most famously in the Farewell to Arms, sorry, A Farewell to Alms. (That is quite a slip there). His argument there is that, basically, the differential reproductive rates of the wealthy lead people of their habits and mindset to become the dominant subset of the population in certain advanced regions, and their behaviour - the behaviour that made them wealthy - is sort of the basis for growth-inducing economic interaction. Those are the main differences.

I guess they don't interact with one another that directly, in my point of view.

Tobi;

So I mean, as long as we are interrogating several theories of the causes of the Industrial Revolution, I read McCloskey's trilogy, right? And I mean, she spent a lot of time criticizing all these other theories about the causes of the Great Enrichment, as she called it. And at the end of the day, she basically, well, I'm not an expert, but in my opinion, she resorted to a bit of a sleight of hand as well, which is to say that well, the cause of this Great Enrichment is liberalism. The spread of freedom, and basically attributed that to luck. Do you buy that? And how does that differ from say, Acemoglu and Robinson, you know... Feels a bit arbitrary.

Davis;

As I understand it, liberalism is only a part of the McCloskey hypothesis. There's also an aspect to which it has to do with the spread of the bourgeois virtues among the people of Britain and an economic mentality that had not previously existed, and that these sorts of behaviours are the key to an efficiently transacting and innovating culture.

Yeah, so there's not just liberalism uber alles. But as far as liberalism is concerned, it's clearly not a sufficient condition for economic growth, it has to be combined to be even beneficial with certain kinds of state capacity such as the provision of some kinds of basic essential services, especially infrastructure, and the provision of social overhead capital in order for the benefits of industrialization not to be winnowed away.

I mean, a good example is Britain, in fact, where certain kinds of laissez-faire behaviour by the state are actually detrimental to the British economy. British cities grow much too fast for their infrastructure, and in many ways, they really are the sort of hives of scum, filth, and overcrowding they're drawn up as in your standard Charles Dickens novel.

And part of the reason for that is because much of the investment in public infrastructure was shunted away from the state and toward private individuals and this process did not occur as seamlessly as it might have. And so, you know, there's poor sanitation, improper access to good drinking water, inadequate housing stocks, and all these social bads, actually, probably, reduced the rate of economic growth.

So if liberalism is to be helpful, it has to be an appendage of a larger growth process. And I really do not think it's either sufficient or necessary for industrialization. You can look straight to one of the foremost industrializing countries of the last four decades in China, where industrialization has occurred apace in, really, the absence of political liberalism.

And you can make arguments about whether that growth will be sustained. But there is certainly dynamism and there is certainly an improvement in per capita living standards and convergence with the West. You can even make the argument for Soviet Russia and its early years as Bob Allen has - that from about the late 1920s until 1970, Soviet Russia under a planning regime grew quickly enough to have some measure of convergence with the West, and certainly an increase in living standards.

Tobi;

Two final questions before I let you go. One of which would be, as you mentioned in the introduction, after the 1760 or thereabout event, a lot of economies in Europe, France, and of course, Germany, caught up with the British economy and, of course, by the end of the Second World War, America had become the preeminent global economic power. Why did the British economy decline?

Davis;

That's a question that some economic historians don't accept at all, and that I'm hoping to explore in the relatively near future. But the old Edwardian argument that Britain has just matured, and that it's had its spell as the leading industrial nation, but there are inevitable limits to growth, and that they've reached the limit of their possibilities and handed over the torch to the United States and to Britain's European rivals.

You know, the answer here is obviously a little bit more complicated. But one of the standard responses is to say, well, the kind of growth that Britain experienced from 1760 to 1860, was of a fundamentally different character than that that made the United States and Western Central Europe successful during the 19th century.

And that's basically down to this distinction between tinkering and engineering-based innovation that is responsible for the creation of many of the main inventions of the British Industrial Revolution and the application of science to technology, drives innovation during the Second Industrial Revolution. So in the first industrial revolution, you see, particularly in the textile sector, a range of innovations arising from learning by doing, from people within the industry solving problems that occur to them in the production process and making incremental improvements, really, without the aid of any kind of formal knowledge.

Not all of these improvements are incremental, like inventions like the flying shuttle, the water frame, the spinning jenny, all these things bring about colossal improvements in productivity, and they make Britain by 1850 the world's leading textile exporter, but none of them required deep formal knowledge of how to construct machinery of the physics of the engineering process.

Whereas by the end of the 19th century, some of the leading sectors like steel, electricity, the construction of automobiles, chemicals, all of these industries require significant scientific knowledge in order to advance to an appreciable degree. So there's the argument that Britain's success in tinkering-based innovation-led it to undervalue the importance of investment in human capital, specifically through an education system.

And consequently, there was sort of an inadequate generation of young scientists and professional engineers coming through the ranks just at the time when they were most needed in transitioning the British economy toward the modern industries that we're taking hold in Germany and the United States.

That's probably true to an extent. But there's also a degree to which Britain is simply following its comparative advantage in other kinds of industries in the face of the industrialization of the United States and the Central European powers.

Britain is always going to have an advantage in the provision of financial services and shipping, and that is really one of the directions that the British economy takes in the years before World War One. And so the economic historian Simon Carly has argued that this isn't senescence, this is not the ageing and stagnation of the British economy, but really a movement in a new direction to conform with her resource possibilities and comparative advantages.

Obviously, the United States is always going to have a much larger advantage in heavy resource-based industrialization, because of the massive reserves of ores, minerals, timber at its disposal.

Tobi;

Final question before I let you go, if we look at contemporary economic growth and policies, especially in countries that are still behind income-wise, what can we learn from the Industrial Revolution? Because a lot of people project different things depending on the causal story that they buy, or that they want to believe.

Advocates of industrialization and the East Asian style of industrial policy take different lessons, people who favour the Institutionalists also use that to give their own sort of policy advice. People who favour liberalism will say, well, it's about political freedom. So what are we supposed to learn from the Industrial Revolution, so to speak, does that particular period of history have anything to teach us at all?

Davis;

You and every sort of public, economic intellectual in every country that has tried to develop ever since the Industrial Revolution wonders the same thing. And the thing that's really interesting and unique about the British Industrial Revolution is not just that it's the first of its kind, but that it's the only Industrial Revolution that occurs without a model.

Because every other industrialization process in history looked back on the British experience, and said, you know, we should imitate this aspect and that aspect. And that where Britain has been successful, we should expect to be successful too. They've taken Britain's successes and applied them to their own, to some extent. The British Industrial Revolution is unique because there is no precedent, there is no model for what occurred.

It really did happen spontaneously, because even though there may have been some elements in the British government that wanted to promote economic growth, that's the famous mercantilism of the 17th and 18th centuries and really, one of the reasons why Adam Smith writes his great book, The Wealth of Nations in 1776, is because these are all people interested in making the country wealthier. But they had no idea that industrialization was sort of what could or would follow.

And so, in terms of the lessons that we can draw from this, they are to some extent limited. We know that because of the degree to which all of these countries that have attempted to follow the British model have either successfully or unsuccessfully failed to do so.

The United States, for example, was moderately successful at industrializing, say, in New England, along British lines, but immensely successful in going its own way in a variety of Heavy Industries toward the end of the 19th century. Partly because of the simple scale, but also because of the human capital and skill advantages that we've been talking about.

You know, it's quite reasonable to argue that many of the East Asian countries would have struggled to industrialize in the spontaneous fashion that Britain did because they were situated in a position in the global economy in which they did not have a comparative advantage in the industries that would end up transforming them until they employed industrial policy in order to break free and to get out of low level local agrarian traps.

And I know that people will shout at me and say that Meiji Japan was already growing prior to the world wars. But I don't think it was necessarily true that Meiji Japan was set to grow in the spectacular fashion that Japan did after 1945. But all this is debatable. But what is certainly true from the British example, is that it demonstrates, in some respects, the extent to which a different combination of political liberalism and state capacity can make a difference in producing some economic separation.

So if you have the right political economy, by comparison with your neighbours, you can have a bit of a growth advantage. This is not to say that if you have had Britain's political economy from the 18th century, you would somehow grow faster today. Rather, if you had Britain's advantage in political economy, you might have.

But in my opinion, and this is not to sound too down, the genesis of the Industrial Revolution is primarily in the long process of the transformation of productive forces from the 16th century onward. And no hand was taken really by any institution in shaping them. And that spontaneity, and that mystery really, is what makes the Industrial Revolution so interesting. And so also just why it has been so difficult to copy. And why nations that have intentionally industrialized have needed to find their own recipes for doing so.

Tobi;

Finally, what are you working on right now? And why are you excited about it?

Davis;

Yeah, so I'm planning on obviously continuing with my Substack and blog, I never really know what to call it. I don't know if it's a newsletter or a blog, or what? I guess it just depends on...

Tobi;

I think it's both.

Davis;

Yeah, I guess it depends on how you access it. But yeah, I've got a couple of projects in various stages of production. I have an economic history paper that is presumably being refereed at the moment, so we'll see how that's received and whether major transformations will be needed to bring that toward publication.

And then I also am in some of the very early stages of what could be an exciting project in Canadian economic history. But I don't want to reveal too much about that at the present. I'm not exactly like throwing spaghetti at the wall and hoping that it sticks because I have way too much time in order to, sort of, incentivise desperation like that.

But I do think it's, at this point, beneficial to engage in a diverse array of possibilities for work that I can consider doing.

Tobi;

It's been great talking to you, Davis, and I wish you all the best.

Davis;

Yeah, thanks. Fun conversation.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com

Supply chains have been in the news a lot lately - because there have been shortages of many important things like food, semiconductor microchips, heating and cooking gas, and even shipping containers. Prices of many commodities have gone through the roof because of these shortages, and policymakers globally are scrambling to find a solution especially with the holiday season coming around. I tried to unpack some of the issues with Decision Scientist Oliver Beige. We also revisit some of the themes from our last conversation (note that this was recorded before the new Omicron variant!). It is always informative to talk to Oliver, and many thanks to him for his time. The transcript for the conversation is available below for everyone.

TRANSCRIPT

Tobi;

My guest, who is making his second appearance on the show, is Oliver Beige. He is a decision scientist and, welcome back to the show.

Oliver;

[A] pleasure to be on your podcast.

Tobi;

Yeah. So, the last time we talk pretty much about the pandemic. Mostly about some of the predictions that experts were making about the patterns of infection, and fatality, and so many of the public health implications of that.

But one thing we are now seeing, that as is quite becoming so clear, is some of the other I should say secondary "effects" of some of the measures that were taken because of the pandemic policy-wise.

One metaphor you use which I like so much - it pumps my intuition in all the right ways - is like the lockdown is like telling half of the cars on the route to stop instantly and the other half to just speed right ahead.

You know, and there is a global shortage of so many things. Supply chain is so much in the news now, from shipping costs going up about over 400%, food inflation is high. It's crazy in Nigeria, India is experiencing hunger, poverty has definitely worsened for a lot of vulnerable demography. There is also the issue of joblessness, businesses have gone under.

Again, I'll ask you and this may seem like picking up from the theme of where we stopped the last time. Could some of these problems we are now seeing, which we are going to delve into, could it have been prevented?

Oliver;

Clearly, like most of the policy has been over the last year and a half were not taking this into account. And the analogy you're saying about half of the cars on the highway, like being forced to stop and the other half being forced to speed up - the situation in 2020 was basically a lot of people were calling for a complete shutdown of the global economy until we're done with fighting this virus.

I remember like the prominent German economist, I think, probably two [to] three weeks into the lockdown was making fun of the German government's decision to bring in asparagus harvesters - so [who] usually [do] not come from Germany, they usually come from Czech [Republic] or Poland.

This particular economist [was like] whatever, asparagus is not important enough, we cannot let people in that might bring in the virus or something like that. Of course, very, very, very quickly, we had massive problems on both food production and, of course, we had food shortages very, very quickly.

So we basically had harvests dying on the field, and shortages within the supply chain in between the production and the consumption of things. We have, like, abattoirs and [...], [...], and so on.

So we are very much into a severe food crisis very quickly, and always a predictable food crisis very, very quickly. And so then we had fairly massive measures taken in order to alleviate that [by] giving people money, at least, in the Western world here.

That seemed to have stopped it. And suddenly people had got the feeling really [that] the economy is working again, and we can still buy our car and we can still consume, and people had money to spend and use the money to buy products because there was not a lot of other things they could spend it on. The movie theatres were closed.

So this is the situation. It looked like we're good for a while. Seemed like we had resolved this quickly emerging problem of a stopped economy. And of course, that's not how it works. And we've seen increasing numbers of reports of an economy that is not working anymore, because of the basic things we take for granted like, basically, shipping containers.

The basic things are not where they should be. We not only have severe shortages, we also have the situation where we're piling up empty shipping containers in certain ports, and they cannot be moved anywhere else because we don't have the shipping capacity.

And the current situation that things are not what they should be. Things we take for granted are in short supply which has all kinds of effects on other things. So, basically, we're having a global supply chain that is locking down just in time for Christmas and next year, you know, Chinese new year, sort of the highest capacity, highest load times.

Always the situation in supply chain is that it affects the most vulnerable parts of the supply chain the most. And that is usually the ports part, right? So the ones that don't have the alternatives… if you are a rich participant in a supply chain, if you are a big carmaker [or] something like that [and] you cannot get shipping capacities, you're currently moving your raw materials by airplane. It's more expensive, far more expensive, of course, but you need to stop to build your cars.

The worst thing you can have is... no, the second-worst thing you can have is an almost finished product, 99% of [a] finished product that sits on your parking lot and it's still missing one part. And this one part is like three months away from being delivered.

Companies that are rich enough [and] that can afford it are using any means possible to get these missing pieces. But what we're also seeing now, you have in automotive (it's not only in automotive, it's general but automotive fits very much) is missing microchips.

Microchip supply chain topic is the production topic. We don't have enough production capacity to fulfil demand. But of course, now that we see car manufacturers closing down plants - they used to close down for (a) week[s], now they're closing down for months.

Now you have a whole dependent supply chain that feeds into these plants that had nothing to do with microchips. They're doing whatever... glove compartments, plastic, glass, paint, everything else; they're not being used because [this] particular facility is not producing anymore [and] now they're being affected by this.

And this is the situation we have right now and this is something I've been predicting for a long time, basically, since last February [which] is that we're running into a situation where basically the whole thing goes out of control.

And the one thing I just posted like last week, I think, is Northern Europe, especially the UK is experiencing a gas shortage, which affects flower production. Flowers are usually grown in greenhouses in Europe, and Ireland and UK, apparently.

But they're closing down, which opens an opportunity for Kenya, which is also a flower producer to have less competitors (who are now in the situation to put fewer flowers on the market, of course), but they can't because they don't have the shipping containers they need to bring flowers to Europe or North America.

And this is a situation where basically the whole thing freezes up. I heard for the longest time, especially coming from something like the politically relevant economists said, Okay, "markets tend to self regulate," which is true for most of the time. "All of this is basically driven by capitalism and we should see all of these problems being short term. So we should see all of this to be temporary, and then it is just going back to normal eventually."

Now they have to admit that it's probably not gonna go away anytime soon. Basically, everything I see in global shipping assumes that these problems are with us through 2022 talking 2023 already. So, yeah, this was foreseeable. And it was like a situation where people who did not want to predict this for whatever ideological reason, like, basically, ignoring the pointers we had all along.

Tobi;

That's just depressing. But a bit of a trivia, well, maybe not so trivial question. You work on supply chains, I don't want to name names of some of the firms you work for, but like right now, who are the people calling you the most demanding for your expertise and help [in] understanding or solving this problem? Where I'm going with that question is, where exactly are the bottlenecks?

Oliver;

I don't currently work on a supply chain. This is some, just basically, 25 years of expertise. I think basically, where the most interest comes from right now is actually startups.

I think, of course, from what I see, [a] lot of current procurement managers, also logistics managers, they do everything they can to handle the situation, they're not really the ones that need my expertise. They have, what, 25 years logistics[of] experience, they don't really need me.

But what I see and what I'm trying to help [with] is sort of like resolve the underlying information problem we have and this is not something we can resolve within a couple months. Basically, people who are supply chain bottleneck managers do whatever they can with the tools they have.

Really to give better tools to be better prepared for these crises is all about having the information, shifting information across five, six tiers within the supply chain for someone with at the end of a supply chain to see what's happening at the beginning in order to make better plans. Also, like, if we have a surplus of shipping containers in the Port of Auckland, New Zealand, while the rest of the world is in severe shortage, how can we resolve these problems?

Yeah, this is definitely something that has to happen that I normally don't work on, like trying to come up with quick fixes. I'm usually working with people that sort of try to resolve this in the long term.

Tobi;

So there are two explanations that I've seen in the media and which I want you to help assess. So one explanation goes like [this] "We had the lockdown. Everybody stay at home. You work from home. You order whatever it is you want at home." A lot of countries give stimulus in form of money to households, though we weren't very successful with that in Nigeria, it was a massive failure and had its own problems. But you know, so the theory goes, that demand for most items went through the roof and that is what we are seeing feeding through the supply chain now.

But another explanation goes that what we are experiencing now is the result of economies starting to open up and that is where the surge in demand is coming from and that's why companies are struggling to meet this demand, you know, but usually, I don't see anything about the massive restriction on supply that also was policy during the pandemic, because, companies that had no house delivery capacity basically shut down or went out of business. So, I mean, how do you assess some of these explanations, perhaps there are others that we've seen in the media, from The Economist to the Financial Times to so many people trying to explain this?

Oliver;

They're not mutually exclusive, the explanations. This is probably definitely a combination of all of it that's coming all at the same time.

For one, both on the supply and the demand side, we had an expectation that the economy will shut down for a long time. So people stopped whenever... ordering cars, and then like two, three weeks, months on, they realize that so okay, it's still going on, I can actually order my car. And of course, all the manufacturers have to catch up with this. This has been going on two, three months of no production had to be produced in double triple shifts afterwards.

Stimulus money, the interesting thing is not so much word [about] where the stimulus money went to but where we see it now, which is actually popping up in venture capital. Happy for all the startups that are [a] beneficiary of this money, but stimulus money should not go to venture capital. So something went wrong here.

But money, people were able to spend, which they did. And the third thing [is] we have a shift from money spent on things you can do outdoors - entertainment is an obvious one - to money being shifted on things you can do indoors, which is like stationary bicycles, bread makers, or PlayStations, all these things.

Basically physical goods that have to be shipped. And in general, we had a shift from shopping in stores to things being delivered by deliveries and this has put its strain on the whole supply chain and our supply chain is built to run at 90% capacity. And so pushing this over that limit, over a 100% limit, well there will be points where it gives out.

This is just [like] taking a leaky old pipeline system and you're putting like whatever, whether 100% of liquid you want to run through this pipeline, and [the] pipeline will burst in certain points. And that's exactly what happened. And it's usually the most vulnerable point of the pipeline system where it bursts. We're seeing that it emanates out from there.

Tobi;

One other thing (which is a point you've also made, albeit in different words), that the pandemic also, sort of, exposes is the pattern of economic specialization of the global economy. Because for one, I didn't know how Malaysia was important to the supply of hand gloves before the pandemic and so many other things like tissue paper, and so many other overlooked everyday household commodities that we found out through shortages and empty shelves, you know, [to] how important and how the supply chain is configured.

And I mean, this brings up issues around the theories of economic trade and the geopolitics of that, you know, and so many people have been - although for political reasons - talking about a reconfiguration of the supply chain. Joe Biden is talking about putting money in bringing America's supply chain closer to its borders, South Korea is spending so much money. There's so much talk of developing domestic capability. We've seen that too with the supply of vaccines, you know, so are politicians or I mean, local stakeholders just having an overreaction, or can the economics of [the] supply chain be reconfigured? Basically?

Oliver;

Yes, basically, we can think of the last 70 years as, what, the post-war economy which we had until like [the] late 80s, early 90s. If you look at the post World War, we had two very distinct periods, which was like the post-war, Cold War era, where every country had a strategic reserve on things they thought they needed in terms of a future war.

So, like, a lot of production was still in the country even if it was not economically efficient for those reasons. And then we had the end of the Cold War and economic efficiency overruled all kinds of strategic considerations. And we had the period of global sourcing, which matched the time, basically, I think, the mid-80s… sort of the time when we started having the enterprise systems that allowed us to source everything globally.

We need to take from wherever it's cheapest, or wherever we get the best quality for the least money and transportation cost, logistics, is not a concern. I wrote a thing like two years ago, as I said, we cannot simply ignore the rumblings of global supply in our considerations because, in comparison to production costs, or marketing costs, logistic costs are negligible, right?

So you can see very, very weird things that basically is being produced in say, Lebanon, and then it's being shipped to China where it's being manufactured and being brought back to Europe, because it's just cheaper.

Of course, we are in a situation where the supply chain layer, which basically nobody paid any attention to other than the operation and logistics people is the thing that's causing the problem and realizing that okay, we should probably be producing our own chips because the global chip manufacturers (microchip manufacturers) are not taking our urgent calls, they're taking others' calls.

So, they are basically sorting their customers by considerations which are not aligned with ours. I see this as a global trend going up, and probably over the next 20 years. Largely being connected to manufacturing trends like 3d printing, but also economies of scale becoming less important.

But this bringing production back home thinking is really at the root of what's happening in the United Kingdom now, because they basically decided that if they sort of disconnect themselves from the EU, they can do this by helping production back home. And that did not turn out to be correct in this case.

So this is like a major trend we're seeing overall. But this is something that will unfold over the next 20 years.

Tobi;

A bit of a side question, I'll say, on that point. I remember my operations research professor telling me in school that one of the wrong assumptions economists have is thinking that prices always clear markets. So which brings me to the question that, why does economics as opposed to other important parts on this particular issue, like operations research and the like...why does economics have so much influence on policy and the nature of public discourse?

Oliver;

The discipline is tasked with setting the ground rules for capitalism, in a way. So like, usually, if you get an operations research degree, you work for a company and you do like production or logistic stuff we're talking about and if you get an economics degree you end up in the white hallways in Washington, DC or similar.

And of course, it's always more attractive to set policy than to work in the trenches of manufacturing or logistics or the other operational stuff that is clearly not as appealing.

In the United States, we have very clearly the shift in operations research where they were, like, really world-leading to economics. I think one reason is because there's a Nobel Prize for Economics and not a Nobel prize for operations research.

Like, the operational stuff became less attractive, less interesting and sort of moved on to others. And of course, if you're very important, you always want to capture the strategic things.

So something I did not like seeing, um, I went to the United States and study operations research at a time when the United States [factories] were just shedding their manufacturing base. This was like the mid-90s. So it's a clearly recognizable decline.

Then [on] the other hand you saw economics on the ascendancy, but economists really don't know very much about production, or logistics, as we've seen. They're basically caught completely by surprise by this whole supply chain thing.

I remember having discussions "is this is a supply shock? Or is this demand shock? And I was like "it's an in-between shock, it's the stuff that happens in between supply and demand, and this is stuff, economists don't usually pay any attention to."

For me, the problem is really these very adjacent fields, right? If you're studying operations research, you're automatically studying economics along. But if you're studying economics, you're not studying operations research.

Tobi;

How is that possible?

Oliver;

Exactly. This is the problem of academic specialization [...], right? If you don't know how things are being made, and if you don't know how things are being shipped, that's a huge gap in your knowledge.

Tobi;

I think we've gotten to where I'd say [is] the most uncomfortable part of this conversation for me...

Oliver;

Okay...

Tobi;

Which is something that you and I have talked about so many times - which is, there are actual, real-life consequences or effects for some of these problems and the decisions that were made in terms of policy during the pandemic.

And I do not think it would be an exaggeration - even though that's where the world is currently fixated, but I don't think it would be an exaggeration to say that the fatality or the welfare consequences of some of the measures taken in terms of the pandemic response, lockdowns particularly, would have more cost in human lives than the pandemic itself.

I can certainly speak for Nigeria. Not as any kind of expert, but we see in the news every day [how] 2020 was a very tragic year both in terms of poverty, hunger, insecurity, that were all exacerbated by the measures during the lockdown. And I've seen so many other stories from all around the world, India, Kenya, Congo, Brazil, of the real-life consequences of lockdowns, you know, in terms of jobs, in terms of livelihoods.

Now, are we ever... this is like asking you to play a psychologist, I'm sorry I'm always asking you to put on so many hats. Are we have are going to get a reckoning from some of the experts who gave legitimacy to some of these policies that I would say were not well thought out, or maybe were developed in panic... Or, like you've also copiously documented were based on wrong models, wrong assumptions, are we ever going to get to a point where there will be a public reckoning for some of these policies?

Because what I see is a lot of these same people are sort of taking a victory lap, you know, we save the world, the curve is flattening, we are vaccines, you know, and are we ever going to discuss these other problems that we've relegated as secondary, but which may actually have more effects and even lasting consequences for people? Are we ever going to get to that point?

Oliver;

Sadly, I think, also a couple of weeks ago this career academic columnist, you had two career-defining events, and that's like 2007 and it's like 2020 and quite a remarkable majority of economists got both wrong.

Basically in 2007, they just didn't see it coming and in 2020, economics had a large part in actually triggering the event we were talking about, and none of them will lose their jobs over this. None of them will lose tenure over this.

Usually, the reckoning is generational - if incoming economists after 2007 came in to also understand and, sort of, have knowledge that is hopefully enough to avoid another 2007.

And I think emerging countries - Africa - in balance was much more negatively affected by all kinds of hapless attempts to stop the pandemic. There's also young people, basically young people [globally] got dropped off the two years of their lives, but severely restricted for something that they had really no part in.

And, of course, Africa is a very young continent too. So a lot of younger Africans were robbed of opportunities. Yes, but reckoning is generational. Young emerging generation basically realizing that they were shortchanged in this situation. So it's gonna unfold over 20 years. Yeah.

So but in the immediate, we will expect that, like they did in 2007, I remember Kirkman saying basically, "we did almost everything right, in a great financial crisis. We missed out on this big event. But afterwards, we did everything right." We'll see same things, just as normal. I predicted that the tenure system will crumble over this, but I'll wait [to see] if that happens. Yeah.

But there's definitely a problem if you have highly paid experts being so wrong on these momentous events, they should be trained to be able to predict.

Tobi;

For a layperson...Because I think there was this metaphor by the venture investor Naval. And I don't agree with him on a lot but I sort of agree with him on this one where he said, "the pandemic created a situation where epidemiologists were running the economy and economists were doing public health," you know? And I don't know if that's exactly correct but that creates this miasma of confusion for the public.

And we know with social media, there is so much talk about misinformation, disinformation campaign right now, and people just generally have a hard time telling what's what sometimes, or knowing basically sometimes what is good advice. And even for some of us who would like to be a bit more active in our local political process, we also struggle to know where to demand accountability or even common sense.

So, again, I'll ask you, like I did in the last podcast when we're talking about the infection models. Again, regarding associated policies for public health crisis, whether it is how to run the economy, how to run the transportation system, how to tell people what to do and what not to do, how should the public approach expert advice? Are there heuristics?

Oliver;

There was a lot of like reaching out from one's own expert domain into others. And then, of course, the incumbents trying to fend them off. My view of the problem is that we allowed people to get prominent positions, both academically and in the public discussions, who are very good at that and not very good at their field.

Like my field is highly mathematical, I would not be able to deal without having fairly in-depth math knowledge, but I have to understand what's happening in the ground. This is expertise, right? And we have people who are very good at math and have very little understanding of how does math translate into the real world. This is something to stop, right?

If I can contradict mathematical prediction models with 20 minutes of Excel work, then we have a problem. Because someone is living in their very very cloistered mathematical world with very little interaction with the real world they should be dealing with.

So we have to have people who are good at being actual epidemiologists and epidemiologists as modellers, you have to understand how the economy works. And not only what the academic knowledge [or] mathematical knowledge of economics portends to be. And this was the problem, we basically handed the control over to people who have extremely little exposure to how things work.

Tobi;

One last question though, one last question. And I may or may not put this in the podcast, it depends. The delta. Which I know you were tracking for the UK, and I mean, maybe possibly for other places...for a while it seemed like the delta is actually the strain that many people have predicted, you know, but you were also saying that It holds pretty much with the previous pattern.

But now, talk of the Delta has pretty much faded in the same media. What did you learn from that brief experience tracking the data?

Oliver;

We still continue to track the [...] virus more closely than we did before. I mean, it's been like testing procedures, like the amount of testing we do are still going up. In terms of predicting outbreak pattern, I was wrong...at least the ones that was like, the first time England happens up and down, we say this was over which is not over, it's like going up and down again.

It's definitely not going exponential but it didn't stop at the point with the others. Poland, Scotland, a good rate. India is not going through the roof. Yeah, I don't really see the predictive significant difference between what we're seeing with Delta and what we saw before.

What you should expect in the course of the pandemic if you think in terms of population heterogeneity, which is something we should always think about, is sort of, like, variants that emerge later are trying to capture the parts of the population that have not been affected yet. So they're basically closing the pocket.

And this is like, basically, a new vulnerable part of the population that were shielded from the variants before that's vulnerable to this particular new variant. And that goes up very quickly. It reaches this part of the population very quickly. And that's what happened with delta.

And of course, then you had the modellers who ignore population heterogeneity just extrapolating this as though it's gonna capture the whole population extremely quickly and this is definitely not.

I mean, India was the first obvious contradiction to that theory and, of course, India was ignored. And then we had the UK. The UK was like the first time where a government refused to take action. So you cannot retroactively attribute it to whatever kind of [...] action we took.

Of course, Boris Johnson said, "we're gonna open anyway." And most of the exponentialist modellers got it horribly wrong. They're still in the media, I'm still reading guarded articles about their dire predictions, it has not stopped. I think the general population is slowly catching up with the pattern.

Yeah, I expect more to come. We have a world population [and] there are still pockets that have not been affected by this. And this is like my claim from the very beginning [which] is the best strategy we can run is not hurt [halt] all interaction. We've seen that it doesn't work in Australia and New Zealand, that's another thing I predicted. At least for Australia that the virus will make a comeback in the southern winter, which it did.

But that we reduced the point of interaction to situations where we kind of have a buildup of the virus. So basically go away from close indoor events with crowded people until enough people are vaccinated.

And the big supply chain task we have, as of now, is like this massive surplus in vaccines we're building up in the developed Western world. I think we have more than 200 million charges of vaccines coming into Germany with a population of 80 million. So we should not be talking about registered Shot boosters until we get the rest of the world vaccinated.

And hopefully, we do this on a voluntary basis. Voluntary vaccination. That's the other major problem we have that we try to force the... I don't know what the number is 10% of [...] to also get vaccinated by stupid, exclusionary measures. This is not our primary concern, in a way. I think in Germany, we're good. We're just starting to realize that we are undercounting, as usual. So our much much more urgent target is to get the vaccine to people who want or need them.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com

Surely the biggest development in the last year is the record speed with which vaccines were discovered for the Covid-19 virus that shut down the entire world. I spoke to medicinal chemist and science blogger Derek Lowe about the many issues surrounding drug discovery like regulatory constraints, funding, and many other issues in the industry.

Enjoy the conversation with Derek Lowe - and the transcript is available for paid subscribers.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com

I spoke to Christopher Ogunmodede about some of the major themes from the events in Nigeria over the past year. We also talked about some of his more radical ideas - like the abolition of the nation-state. Talking to Chris always leaves me more informed and perceptive - and I want to thank him for being always willing to share his knowledge.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com

''Rule of law'' is the generally accepted description for how well a political system conforms to formal rules - rather than functioning through the whims of the most powerful social or political agents. For a society to be described as one functioning under rule of law - there must be rules and those rules must be equally applied to everyone in the society. Let us call this Letter of the Law. These rules are usually expressed through the constitution of a country and enforced through the courts. But simply having rules and enforcing them does not suffice in the making of the rule of law - and it is an incomplete (however accurate) conception of it. Some rules can be drafted in bad faith or with the express purpose of protecting the interest of the political elites responsible for governance. This is why many scholars have argued that the rule of law can only be said to exist in a state that functions under rules designed to protect the civil liberties (individual rights, freedom of speech, freedom of association, etc.) of the people living within its territory. Let us call this the Character or Spirit of the Law.

The character of the law understood as the fulfilment of constitutionally-guaranteed civil liberties is the most common standard by which governance is judged to conform or deviate from the rule of law. For example, countries that routinely violate the rights of citizens in whatever form cannot be said to be governed by the rule of law, even if it has a written constitution. Consideration of the character of the law is the context to understanding the work of my guest on this episode, Paul Gowder.

He is a professor of law at NorthWestern university with a broad research interest and expertise. Paul departs from this common derivation of the character of the law as rooted in liberty - and argued that for the rule of law to be broadly applicable in different societies (not dependent on the political institutions and ethical ideals of any specific society) with varying cultures and traditions of governance, it must be rooted in Equality. To understand Paul's argument, I will briefly state two important aspects that set the tone for our conversation - this should not be taken as an exhaustive summary of his work and I encourage you to check out his website and book. The first is that the rule of law as a principle regulates the actions of the state (government), and it is not to be conflated with other rules that regulate the actions of citizens.

This is such an important point because one of the most egregious expressions of the law is when a government uses it to oppress citizens. Secondly, Paul outlines three components of the rule of law based on equality as 1) regularity - the government can only use coercion when it is acting in ''good faith'' and under ''reasonable interpretation'' of rules that already exist and are specific to the circumstances. 2) publicity - the law has to be accessible to everyone without barriers (''officials have a responsibility to explain their application of the law, ...failure to do so commits hubris and terror against the public"). 3) generality - the law must be equally applicable to all. Putting all these elements together gives us a rule of law regime where everyone is equal before the law, and the state does not wantonly abuse citizens or single out particular groups for systematic abuse.

I enjoyed this conversation very much, and I want to thank Paul for talking to me. Thank you guys too for always listening, and for the other ways you support this project.

TRANSCRIPT

Tobi;

I greatly enjoyed your work on the rule of law. I've read your papers, I've read your book, and I like it very much. I think it's a great public service if I can say that because for a lot of time, I am interested in economic development and that is mostly the issue that this podcast talks about. And what you see in that particular conversation is there hasn't really been that much compatibility between the question of the rule of law or the laws that should regulate the actions of the state, and its strategy for economic development.

Most of the time, you often see even some justification, I should say, to trample on rights in as much as you get development, you get high-income growth for it. And what I found in your work is, this does not have to be so. So what was your eureka moment in coming up with your concept, we are going to unpack a lot of the details very soon, but what motivated you to write this work or to embark on this project?

Paul;

Yeah, I think for me, part of the issue that really drives a lot of how I think about the rule of law and you know, reasons behind some of this work is really a difference between the way that those of us who think about human freedom and human equality, right? I think of it as philosophers, right. So they're philosophers and philosophers think about the ability of people to live autonomous lives, to sort of stand tall against their government, to live lives of respect, and freedom and equality.

And that's one conversation. And so we see people, like, you know, Ronald Dworkin, thinking about what the rule of law can deliver to human beings in that sense. And then, you know, there's this entire development community, you know, the World Bank, lots of the US foreign policy, all of the rest of those groups of people and groups of ideas, talk about the rule of law a lot and work to measure the rule of law and invest immense amounts of money in promoting what they call the rule of law across the world.

But mostly, it seems to be protecting property rights for multinational investment. And I mean, that makes some kind of sense, if you think that what the rule of law is for is economic development, is increasing the GDP of a country and integrating it into favourable international networks of trade. But if you think that it's about human flourishing, then you get a completely different idea of what the rule of law can be, and should be.

And so this sort of really striking disjuncture between the two conversations has driven a lot of my work, especially recently, and especially reflecting even on the United States, I think that we can see how domestic rule of law struggles - which we absolutely have, I mean, look at the Trump administration, frankly, as revolving around this conflict between focusing on economics and focusing on human rights and human wellbeing.

Tobi;

It's interesting the polarization you're talking about. And one way that I also see it play out is [that] analyst or other stakeholders who participate in the process of nation-building in Africa, in Nigeria… a lot of us that care about development and would like to see our countries grow and develop and become rich, are often at opposite ends with other people in the civil society who are advocating for human rights, who are advocating for gender equality, who are advocating for so many other social justice issues.

And it always seems like there's no meeting ground, you know, between those set of views, and I believe it does not have to be so. So one thing I'm going to draw you into quite early is one of the distinctions you made in so many of your papers and even your book is the difference between the conception of the rule of law that you are proposing versus the generally accepted notion of the rule of law based on individual liberty in the classical liberal tradition.

I also think that's part of the problem, because talking about individual liberty comes with this heavy ideological connotation, and giving so many things that have happened in Africa with colonialism and so many other things, nobody wants any of that, you know. So you are proposing a conception of the rule of law that is based on equality.

Tell me, how does that contrast with this popularly accepted notion of the rule of law [which is] based on individual liberty?

Paul;

So I think the way to think about it is to start with the notion of the long term stability of a rule of law system. And so here is one thing that I propose as a fact about legal orders. Ultimately, any kind of stable legal order that can control the powerful, that is, that can say to a top-level political leader, or a powerful multinational corporation, or whomever, no, you can't do this, this violates the law and make that statement stick depends on widespread collective mobilization, if only as a threat, right.

And so it's kind of an analytic proposition about the nature of power, right? If you've got a top-level political leader who's in command of an army, and they want to do something illegal, it's going to require very broad-based opposition, and hence very broad-based commitment to the idea of leaders that follow the law in order to prevent the person in charge of an army from just casually violating it whenever they want.

Okay, accept that as true, what follows from that? Well, what follows from that is that the legal system has to actually be compatible with the basic interests of all. And what that tends to mean and I think this is true, both historically, and theoretically, is leaving aside the philosophical conceptual difference between liberty and equality, which I'm not sure is really all that important. Like I think, ultimately, liberty and equality as moral ideas tend to blur together when you really unpack them.

But practically speaking, any stable legal order that can control the powerful has to be compatible with the interests of a broad-based group of the human beings who participate in that legal order. And what that entails is favouring a way of thinking about the rule of law that focuses on being able to recruit the interests of even the worst off.

In other words, one that's focused on equality, one that's focused on protecting the interests of the less powerful rather than a laissez-faire libertarian conception of the rule of law that tends to be historically speaking, compatible with substantial amounts of economic inequality, hyper-focus on ideas - like property rights, that support the long-standing interests of those who happen to be at the top of the economy, often against the interests of those that happened to be at the bottom of the economy, right. That's simply not a legal order that is sustainable in the long run.

Lately, I've been thinking a lot about the way that this has played out in [the] United States history, in particular. I might have a book that's coming out in December that focuses on a historical account of the development of the rule of law, particularly in the United States. I mean, it's my own country. And so at some point, I had to get talked into writing that book.

And we can see that in our history right at the get-go, you know, in the United States, at the very beginning, the rule of law dialogue tended to be focused on protecting the interests of wealthy elite property holders. And this actually played a major part, for example, in the United States' most grievous struggle, namely the struggle over slavery, because slaveholders really relied on this conception of the Rule of Law focusing on individual freedom and property rights to insist on a right to keep holding slaves against the more egalitarian idea that “hey, wait a minute, the enslaved have a right to be participants in the legal system as well.”

And so we can see these two different conceptions of legality breaking the United States and breaking the idea of legal order in the United States right at the get-go. And we see this in country after country after country. You know, another example is Pinochet's Chile, which was the victim of [the] United States' economics focused rule of law promotion efforts that favoured the interests of property holders under this libertarian conception over the interests of ordinary citizens, democracy and mass interests. In other words, over the egalitarian conception, and again, you know, devolved into authoritarianism and chaos.

Tobi;

Yeah, nice bit of history there, but dialling all the way, if you'll indulge me... dialling all the way to the present, or maybe the recent past, of course; where I see another relevance and tension is development, and its geopolitical significance and the modernization projects that a lot of developed countries have done in so many poor and violent nations, you know, around the world.

I mean, at the time when Africa decolonized, you know, a lot of the countries gravitated towards the communist bloc, socialism [and] that process was shunted, failed, you know, there was a wave of military coups all over the continent, and it was a really dark period.

But what you see is that a lot of these countries, Nigeria, for example, democratized in 1999, a lot of other countries either before then or after followed suit. And what you see is, almost all of them go for American-style federal system, and American-style constitutional democracy, you know. And how that tradition evolved... I mean, there's a lot you can explain and unpack here... how that tradition evolved, we are told is the law has a responsibility to treat people as individuals.

But you also find that these are societies where group identities are very, very strong, you know, and what you get are constitutions that are weakly enforced, impractical, and a society that is perpetually in struggle. I mean, you have a constitution, you have rules, and you have a government that openly disregards them, because the constitutional tradition is so divorced from how a lot of our societies evolve.

And what I see you doing in your work is that if we divorce the rule of law from the ideal society, you know [like] some societies that we look up to, then we can come up with a set of practical propositions that the rule of law should fulfil, so walk me through how you resolve these tensions and your propositions?

Paul;

Well, so it's exactly what you just said, right? I mean, we have to focus on actual existing societies and the actual way that people organize their lives, right. And so here's the issue is, just like I said a minute ago, the rule of law fundamentally depends on people. And when I say people, I don't just mean elites. I don't just mean the wealthy, I don't just mean the people in charge of armies, and the people in charge of courthouses, right?

Like the rule of law depends, number one, on people acting collectively to hold the powerful to the law. And number two, on people using the institutions that we say are associated with the rule of law. And so just as you describe, one sort of really common failure condition for international rule of law development efforts - and I don't think that this is a matter of sort of recipient countries admiring countries like the US, I think this is a matter of international organizations and countries like the US having in their heads a model of what the law looks like and sort of pressing it on recipient countries.

But you know, when you build institutions that don't really resemble how the people in a country actually organize their social, political and legal lives, you shouldn't be surprised when nobody uses them. You shouldn't be surprised when they're ineffective.

But I mean, I think that it's been fairly compared to a kind of second-generation colonialism in that sense where countries like the US and like Germany, attempt to export their legal institutions to other countries, without attending to the ways that the people in those countries already have social and legal resources to run their lives.

And so I'll give you an example that's interesting from Afghanistan. So in Afghanistan, sort of post the 2000s invasion, and so forth, some researchers, mostly affiliated with the Carnegie Institution, found that the really effective rule of law innovations, the really effective interventions were ones that relied on existing social groups and existing structures of traditional authority.

And so, you know, you could build a courthouse and like, ask a formal centralized state to do something, maybe it would work, maybe it wouldn't, maybe people would use it, maybe they wouldn't. But if you took local community leaders, local religious leaders, gave them training, and how to use the social capital they already have to help do things like adjudicate disputes, well, those would actually be effective, because they fit into the existing social organization that already exists.

So I'll give you another example. I have a student who... I had… I just graduated an S.J.D student from Uganda who wrote a dissertation on corruption in Uganda. And one of the things that he advocated for I think, really sensibly was, “ okay, we've got this centralized government, but we've also got all of these traditional kingdoms, and the traditional kingdoms, they're actually a lot more legitimate in the sociological sense than the centralized government.

People trust the traditional kingdoms, people rely on the traditional kingdoms for services, for integrating themselves into their society. And so one useful way of thinking about anti-corruption reforms is to try and empower the traditional kingdoms that already have legitimacy so that they can check the centralized government. And so that kind of work, I think, is where we have real potential to do global rule of law development without just creating carbon copies of the United States.

Tobi;

The process you describe, I will say, as promising as it may sound, what I want to ask you is how then do you ensure that a lot of these traditional institutions that can be empowered to provide reasonable checks to the power of the central government also fulfil the conditions of equality in their relation to the general public? Because even historically, a lot of these institutions are quite hierarchical...

Paul;

Oh, yeah... and I think in particular, women's rights are a big problem.

Tobi;

Yeah, yeah and there's a lot of abuses that go on locally, even within those communities, you know. We have traditional monarchies who exercise blanket rights over land ownership, over people's wives, over so many things, you know, so how then does this condition of equality transmit across the system?

Paul;

Yeah, no, I think that's the really hard question. I tell you right now that part of the answer is that those are not end-state processes. By this I mean that any realistic conception of how we can actually build effective rule of law institutions, but also genuinely incorporate everyone's interests in a society is going to accept that there's going to be a kind of dynamic tension between institutions.

You know, sometimes we're going to have to use the centralized state to check traditional institutions. Sometimes we're going to have to use traditional institutions to check the centralized state. Elinor Ostrom, Nobel Prize-winning political scientist and her sort of the Bloomington School of Political Economy, emphasized for many years this idea that they called Polycentrism.

That is the idea that multiple, overlapping governance organizations that are sort of forced to negotiate with one another, and forced to learn from one another, and really integrate with one another in this sort of complex tension-filled kind of way, actually turns out to be a really effective method of achieving what we might call good governance.

And part of the reason is because they give a lot of different people, in different levels of [the] organization, ways to challenge one another, ways to demand inclusion in this decision, and let somebody else handle that decision, and participate jointly in this other decision. And so I think that neither the centralized state alone, nor traditional institutions alone is going to be able to achieve these goals.

But I think efforts to integrate them have some promise. And India has done a lot of work, you know, sort of mixed record of success, perhaps, but has done a lot of work in these lines. I think, for example, of many of the ways that India has tried to promote the growth of Panchayats, of local councils in decision making, including in law enforcement, but at the same time, has tried to do things like promote an even mandate, the inclusion of women, the inclusion of Scheduled Castes, you know, the inclusion of the traditionally subordinated in these decision making processes.

And as I said, they haven't had complete success. But it's an example of a way that the centralized state can both support traditional institutions while pushing those institutions to be more egalitarian.

Tobi;

Let's delve into the three conditions that you identified in your work, which any rule of law state should fulfil. And that is regularity, publicity, and generality. Kindly unpack those three for me.

Paul;

Absolutely. So regularity is...we can think of it as just the basic rule of law idea, right? Like the government obeys the law. And so if you think about this notion of regularity, it's... do we have a situation where the powerful are actually bound by legal rules? Or do we have a situation where, you know, they just do whatever they want? And so I'd say that, you know, there's no state that even counts as a rule of law state in the basic level without satisfying that condition, at least to some reasonable degree.

The idea of publicity really draws on a lot of what I've already been saying about the recruitment of broad participation in the law. That is, when I say publicity, what I mean is that in addition to just officials being bound by the law, ordinary people have to be able to make use of the law in at least two senses.

One, they have to be able to make use of the law to defend themselves. I call this the individualistic side of publicity, right? Like if some police officer wants to lock you up, the decision on whether or not you violated the law has to respond to your advocacy, and your ability to defend yourself in some sense.

And then there's also the collective side of this idea of publicity, which is that the community as a whole has to be able to collectively enforce the boundaries of the legal system. And you know, we'd talk a lot more about that, I think that's really the most important idea.

And then the third idea of generality is really the heart of the egalitarian idea that we've been talking about, which is that the law has to actually treat people as equals. And one thing that I think is really important about the way that I think about these three principles is that they're actually really tightly integrated.

By tightly integrated, I mean you're only going to get in real-world states, regularity (that is, officials bound by the law) if you have publicity (that is, if you have people who aren't officials who actually can participate in the legal system and can hold officials to the law). We need the people to hold the officials in line.

You're only going to get publicity if you have generality. That is, the people are only going to be motivated to use the legal system and to defend the legal system if the legal system actually treats them as equals. And so you really need publicity to have stable regularity, you really need generality to have stable publicity.

Tobi;

Speaking of regularity, when you say what constrains the coercive power of the state is when it is authorised by good faith and reasonable interpretation of pre-existing reasonably specific rules. That sounds very specific. And it's also Scalonian in a way, but a lot of people might quibble a bit about what is reasonable, you know, it sounds vague, right?

So how would you condition or define reasonable in this sense, and I know you talked about hubris when you were talking about publicity. But is there a minimum level of responsibility for reasonability on the part of the citizen in relation to a state?

Paul;

That's, in a lot of ways, the really hard philosophical question, because one of the things that we know about law is that it is inherently filled with disagreement, right? Like our experience of the legal system and of every state that actually has something like the rule of law is that people radically disagree about the legal propriety of actions of the government.

And so in some sense, this idea of reasonableness is kind of a cop-out. But it's a cop-out that is absolutely necessary, because there's no, you know, what [Thomas] Nagel called a view from nowhere. There's no view from nowhere from which we can evaluate whether or not on a day to day basis, officials are actually complying with the law in some kind of correct sense.

But again, I think, you know, as you said, to some extent, that implies that some of the responsibility for evaluating this reasonableness criterion falls down to day to day politics, falls down to the judgment of ordinary citizens. Like, my conception of the rule of law is kind of sneakily a deeply democratic conception, because it recognizes given the existence of uncertainty as to what the law actually requires of officials both on a case by case basis.

And, broadly speaking, the only way that we're ever going to be able to say, Well, you know, officials are more or less operating within a reasonable conception of what their legal responsibilities are, is if we empower the public at large to make these judgments. If we have institutions like here in the US, our jury trials, if we have an underlying backstop of civil society and politics, that is actively scrutinizing and questioning official action.

Tobi;

So speaking of publicity, which is my favorite...I have to say...

Paul;

Mine too. You could probably tell.

Tobi;

Because I think that therein lies the power of the state to get away with abusive use of its legitimacy, or its power, so to speak. When you say that officials have a responsibility to explain their application of the law, and a failure to do so commits hubris and terror against the public. So those two situations - hubris and terror, can you explain those to me a bit?

Paul;

Yeah. So these are really, sort of, moral philosophy ideas at heart, particularly hubris. The idea is there's a big difference, even if I have authority over you, between my exercising that authority in the form of commands and my exercising that authority in the form of a conversation that appeals to your reasoning capacity, right.

So these days, I'm thinking about it in part with reference to... I'm going to go very philosophical with you here... but in reference to Kant's humanity formulation of the categorical imperative, sorry.

But that is a sense in which if I'm making decisions about your conduct, and your life and, you know, affecting your fundamental interests, that when I express the reasons to you for those decisions, and when I genuinely listen to the reasons that you offer, and genuinely take those into account in my decision making process, I'm showing a kind of respect for you, which is consistent with the idea of a society of equals.

As opposed to just hi, I'm wiser than you, and so my decision is, you know, you go this way, you violated the law, right? Are we a military commander? Or are we a judge? Both the military commander and the judge exercise authority, but they do so in very different ways. One is hierarchical, the other I would contend is not.

Tobi;

Still talking about publicity here, and why I love it so much is one important, should I say… a distinction you made quite early in your book is that the rule of law regulates the action of the state, in relation to its citizens.

Paul;

Yes.

Tobi;

Often and I would count myself among people who have been confused by that point as saying that the rule of law regulates the action of the society in general. I have never thought to make that distinction. And it's important because often you see that maybe when dealing with civil disobedience, or some kind of action that the government finds disruptive to its interests, or its preferences, the rule of law is often invoked as a way for governments to use sometimes without discretion, its enforcement powers, you know.

So please explain further this distinction between the rule of law regulating the state-citizen relation versus the general law and order in the society. I mean, you get this from Trump, you get this from so many other people who say, Oh, we are a law and order society, I'm a rule of law candidate.

Paul;

Oh, yeah.

Tobi;

You cannot do this, you cannot do that. We cannot encourage the breakdown of law and order in the society. So, explain this difference to me.

Paul;

Absolutely, then this is probably the most controversial part of my account of the rule of law. I think everybody disagrees with this. I sort of want to start by talking about how I got to this view. And I think I really got to this view by reflecting on the civil rights movement in the United States in particular, right.

Because, you know, what we would so often see, just as you say about all of these other contexts, is we would see officials, we would see judges - I mean, there are, you know, Supreme Court cases where supreme court justices that are normally relatively liberal and sympathetic, like, you know, Justice Hugo Black scolding Martin Luther King for engaging in civil disobedience on the idea that it threatens the rule of law.

It turns out, and this is something that I go into in the book that's coming out in December... it turns out that King actually had a sophisticated theory of when it was appropriate to engage in civil disobedience and when it wasn't.

But for me, reflecting on that conflict in particular, and reflecting on the fact that the same people who were scolding peaceful lunch-counter-sit-ins for threatening the rule of law and, you know, causing society to descend into chaos and undermining property rights and all the rest of that nonsense, were also standing by and watching as southern governors sent police in to beat and gas and fire hose and set dogs on peaceful protests in this sort of completely new set of like, totally unbounded explosions of state violence.

And so it seems to me sort of intuitively, like these can't be the same problem, right, like ordinary citizens, doing sit-ins, even if they're illegal, even if we might have some reason to criticize them, it can't be the same reason that we have to criticize Bull Connor for having the cops beat people.

And part of the reason that that's the case, and this is what I call the Hobbesian property in the introduction to the rule of law in the real world...part of the reason is just the reality of what states are, right? Like, protesters don't have tanks and police dogs, and fire hoses, right? Protesters typically don't have armies. If they do, then we're in a civil war situation, not a rule of law situation, the state does have all of those things.

And so one of the features of the state that makes it the most appropriate site for this talk about the rule of law is this the state has, I mean, most modern states have, at least on a case by case basis, overwhelming power. And so we have distinct moral reasons to control overwhelming power than we do to control a little bit of legal disobedience, right, like overwhelming power is overwhelming.

It's something that has a different moral importance for its control. Then the second idea is at the same time what I call the [...] property... is the state makes claims about its use of power, right? Like ordinary people, when they obey the law or violate the law, they don't necessarily do so with reference to a set of ideas that they're propagating about their relationship to other people.

Whereas when modern states send troops in to beat people up, in a way what they're doing is they're saying that they're doing so in all of our names, right, particularly, but not exclusively in democratic governments. There's a way in which the state represents itself as acting on behalf of the political community at large. And so it makes sense to have a distinctive normative principle to regulate that kind of power.

Tobi;

I know you sort of sidestepped this in the book, and maybe it doesn't really fit with your overall argument. But I'm going to push you on that topic a bit. So how does the rule of law state as a matter of institutional design then handles... I know you said that there are separate principles that can be developed for guiding citizen actions, you know...

Paul;

Yes.

Tobi;

I mean, let's be clear that you are not saying that people are free to act however they want.

Paul;

I'm not advocating anarchy.

Tobi;

Exactly. So how does the rule of law state then handle citizens disagreements or conflicting interests around issues of social order? And I'll give you an example. I mentioned right at the beginning of our conversation what happened in Nigeria in October 2020.

There's a unit of the police force that was created to handle violent crimes. Needless to say that they went way beyond their remit and became a very notoriously abusive unit of the police force.

Picking up people randomly, lock them up, extort them for money. And there was a situation where a young man was murdered, and his car stolen by this same unit of the police force and young people all over the country, from Lagos to Port Harcourt to Abuja, everywhere, felt we've had enough, right, and everybody came out in protest.

It was very, very peaceful, I'd say, until other interests, you know, infiltrated that action.

Paul;

Right.

Tobi;

But what I noticed quite early in that process was that even within the spirits of that protests, there were disagreements between citizens - protesters blocking roads, you know, versus people who feel well, your protest should not stop me from going to work, you know, and so many other actions by the protesters that other people with, maybe not conflicting interests, but who have other opinions about strategy or process feel well, this is not right.

This is not how to do this. This is not how you do this, you know, and I see that that sort of provided the loophole, I should say, for the government to then move in and take a ruthlessly violent action. You know, there was a popular tollgate in Lagos in the richest neighbourhood in Lagos that was blocked for 10 days by the protesters. And I mean, after this, the army basically moved in and shot people to death.

Today, you still see people who would say, Oh, well, that's tragic. But should these people have been blocking other people from going about their daily business? So how does the rule of law regulate issues of social order vis-a-vis conflict of interest?

Paul;

So I think this is actually a point in favour of my stark distinction between state action and social action as appropriate for thinking about the rule of law. Because when you say that the state used...what I still fundamentally think of as like minor civil disobedience...so, like blocking some roads, big deal!

Protesters block roads all the time, right, like protesters have blocked roads throughout human history, you know, like, sometimes it goes big, right? Like they love blocking roads in the French Revolution. But oftentimes, it's just blocking... so I blocked roads.

I participated in, you know, some protests in the early 2000s. I participated in blocking roads in DC, right, like, fundamentally "big deal!" is the answer that the state ought to give. And so by saying to each other and to the government, when we talk about the rule of law, we mean, the state's power has to be controlled by the law, I think that gives us a language to say... even though people are engaging in illegal things, the state still has to follow legal process in dealing with it, right.

The state still has to use only the level of force allowed by the law to arrest people. The state can't just send in the army to shoot people. And the principle that we appeal to is this principle of the rule of law.

Yeah, maintaining the distinction between lawbreaking by ordinary people and law-breaking by the state helps us understand why the state shouldn't be allowed to just send in troops whenever people engage in a little bit of minor lawbreaking and protests.

Tobi;

So how does the law... I mean, we are entering a bit of a different territory, how does the law in your conception handles what... well, maybe these are fancy definitions, but what some people will call extraordinary circumstances. Like protests with political interests? Maybe protesters that are funded and motivated to unseat an incumbent government?

Or in terrorism, you know, where you often have situations where there are no laws on paper to deal with these sort of extraordinary situations, you know, and they can be extremely violent, they can be extremely strange, they're usually things that so many societies are not equipped to handle.

So how should the rule of law regulate the action of the state in such extraordinary circumstances?

Paul;

Yeah, so this is the deep problem of the rule of law, you know, this is why people still read Carl Schmitt, right, because Carl Schmitt's whole account of executive power basically is, hey, wait a minute emergencies happen, and when emergencies happen, liberal legal ideas like the rule of law dropout, and so fundamentally, you just have like raw sovereignty. And that means that the state just kind of does what it must. Right.

So here's what I feel about Schmitt. One is, maybe sometimes that's true, right? And again, I think about the US context, because I'm an American and you know, I have my own history, right? And so in the US context, I think, again, about, Abraham Lincoln and the Civil War, right.

Like Abraham Lincoln broke all kinds of laws in the Civil War. Like today, we'd call some of the things that he did basically assuming dictatorial power in some respects. I mean, he did that in the greatest emergency that the country had ever faced and has ever faced since then. And he did it in a civil war. And sometimes that happens, and I think practically speaking, legal institutions have a habit of not standing in the way in truly dire situations like that.

But, and here's why I want to push back against Carl Schmitt... but what a legal order can then do is after the emergency has passed...number one, the legal order can be a source of pressure for demanding and accounting of when the emergency has passed, right. And so again, I think of the United States War on Terror, you know, we still have people in United States' custody imprisoned at Guantanamo Bay.

September 11 2001, was almost 20 years ago. It's actually 20 years ago and a month, and we still have people locked up in Guantanamo Bay. That's insane. That's completely unjustifiable. And one of the jobs of the legal system is to pressure the executive to say, okay, buddy, is the emergency over yet? No, really, we think that the emergency is over yet. I want reasons, right, publicity again, I want an explanation from you of why you think the emergency is still ongoing. And the legal system can force the executive to be accountable for the claim that the emergency is still ongoing.

That's number one. Number two is that law tends to be really good at retroactively, sort of, retrofitting things into legal order, right. And so again, I think about the Civil War. You know, after the US Civil War, lots of civil wars, sorry. American-centric person trying to fight against it.

But after the US Civil War, you know, the courts took a pause. And then we have a lot of cases where they took a lot of the things that Lincoln did, they said, okay, some of them at least were illegal, some of them were legal, but only under very specific circumstances.

And so they actually built legal doctrine that took into account the emergency that Lincoln faced, and then later wars, such as in the Second World War, the courts took the lessons from the experience in the American Civil War, and used that to impose more constraints.

So to bring it about that the emergency actions that Franklin Roosevelt took in the Second World War weren't completely sui generis, sort of like right acts of sovereignty, but were regulated by legal rules created during the Civil War, and after the Civil War.

And again, they weren't perfect, right? You know, during the Second World War, the United States interned Japanese Americans, you know, again, sort of completely lawless, completely unjustifiable, but you know, it's an ongoing process. The point is that the legal system is always... the law is always reactive in emergencies.

But the reactive character of the law can nonetheless be used as a way to control and channel sovereign power, even in these sort of Schmittian emergency situations.

Tobi;

So two related questions, your work is interdisciplinary, because you try to blend a lot of social science into legal philosophy. But speaking of legal order and your primary profession, I mean.. for the sake of the audience parties into a lot of other cool stuff, I'm going to be putting up his website in the show notes.

But speaking of legal order, and the legal profession, why is so much of the legal profession fascinated with what I would say the rule by law, as opposed to the rule of law. A lot of what you get from lawyers, even some law professors in some situations is [that] the law is the law, and you have to obey it.

And even if you are going to question it, however unjustified it may seem, you still have to follow some processes that maybe for ordinary citizens are not so accessible or extremely costly, you know, which I think violate regularity, right, the way you talk about it retrospective legislation, and so many other things. So why is the legal profession so fascinated with the law, as opposed to justification for the law?

Paul;

Yeah, I think that question kind of answers itself, right. It's unfortunate... I mean, it's sort of natural but it's unfortunate that the people who most influence our dialogue about the way that we, you know, live in [the] society together with a state, namely by organizing ourselves with law happen to be people who are the specialists who find it easiest, right?

And so I think the simple answer is right on this one, at least in countries like the United States, I'm not sure how true this is in other countries. But in the United States, the domination of legal discourse by lawyers necessarily means that the sort of real practical, real-world ways in which ordinary people find interacting with anything legal to be difficult, oppressive, or both just aren't in view, right? This is hard for them to understand.

But I think in the US, one of the distortions that we've had is that we have an extremely hierarchical legal profession, right. So we have very elite law schools, and those very elite law schools - one of which I teach at - tend to predominantly produce lawyers who primarily work for wealthy corporations and sort of secondarily work for the government. Those lawyers tend to be the ones that end up at the top of the judiciary, that end up in influential positions in academia, that end up, you know, in Congress.

The lawyers that, you know, see poor people, see people of subordinated minority groups and see the very different kinds of interactions with the legal system that people who are worse off have, that see the way that the law presents itself, not as a thing that you can use autonomously to structure your own life. But as a kind of external imposition, that sort of shows up and occasionally inflicts harm on you.

Those lawyers aren't the ones who end up in our corridors of power. And it's very unfortunate, it's a consequence of the hierarchical nature of, at least in the US, our legal profession. And I suspect it's similar in these other countries as well.

Tobi;

In your opinion, what's the... dare I say the sacrosanct and objective - those are rigid conditions sorry - expression of the rule of law? The current general conception of the rule accedes to the primacy of the Constitution, right.

I've often found that problematic because in some countries you find constitutional provisions that are egregious, and in other cases, you find lawyers going into court to challenge certain actions that they deem unjust, or that are truly unjust on the basis of the same constitution. Right. So what do you think is the most practical expression of the rule of law? Is it written laws? Is it the opinion of the judges? Is it how officials hold themselves accountable? What's the answer?

Paul;

So I think I'm gonna like sort of twist this a little bit and interpret that question is like, how do you know the extent to which the rule of law exists in a particular place? And my answer is, can ordinary people look officials in the eye, right, you know... if you're walking down the street, and you see a police officer, you know, are you afraid? Or can you walk past them and confidently know you're doing nothing wrong so there's nothing really effectively but they can do to you, right?

If you're called in to deal with some kind of bureaucratic problem, like the tax office, can you trust that you exist in a relationship of respect? You know, can you trust that when you show them, actually here are my receipts, I really did have that expense, that that's going to be taken seriously? You know, if people, everybody, feels like they can stand tall, and look government officials in the eye, then to that extent, I think that the rule of law exists in a society.

Tobi;

Final question, what's the coolest idea you're working on right now?

Paul;

Oh, gosh. So like I said, I've got two books under contract right now. The first book is a history/theoretical constitutional law account of the development and existing state of the rule of law in the United States.

The second book, which I'm more excited about, because it's the one that I plan to write this year, but it's also a lot harder, is I'm trying to take some of the governance design ideas that we see from the notion of rule of law development, and others such as governance development things and apply them to Private Internet platforms, right? Like, basically to Facebook.

Um, I was actually involved in some of the work, not at a super high level, but I was involved in some of the work in designing or doing the research for designing Facebook's oversight board. And I'm kind of trying to expand on some of those ideas and think about, you know, if we really believe that private companies, especially in these internet platforms are doing governance right now, can we take lessons from how the rest of the world and how actual governments and actual states have developed techniques of governing behaviour in highly networked, large scale super-diverse environments and use those lessons in the private context?

Maybe we can maybe we can't I'm not sure yet. Hopefully, by the time I finish the book, I'll know.

Tobi;

That's interesting. And I'll ask you this, a similar, I'll say a related situation is currently happening in Nigeria right now, where the President's Twitter handle or username, tweeted something that sounded like a thinly veiled threat to a particular ethnic group. And lots of people who disagreed with that tweet reported the tweet, and Twitter ended up deleting the tweet in question, which high-level officials in Nigeria found extremely offensive, and going as far as to assert their sovereign rights over Twitter and say, well, it may be your platform, but it is our country and we are banning you.

How would you adjudicate such a situation? I mean, there's the question of banning Donald Trump from the platform and so many other things that have come up.

Paul;

Yeah, I mean, it's hard, right? So there are no easy answers to these kinds of problems. I think, ultimately, what we have to do is we have to build more legitimate ways to make these decisions. I mean, here are two things that we cannot do, right?

Number one is we can't just let government officials, especially when, you know, as with the Donald Trump example, and so many others, the government officials are the ones who are engaging in the terrible conduct make these decisions.

Number two is we also just can't let a bunch of people sitting in the Bay Area in California make those decisions. Like, ultimately, this is on, you know, property in some abstracted sense of like the shareholders of these companies. But we cannot simply allow a bunch of people in San Francisco, in Menlo Park, and you know, Cupertino and Mountain View, and all of those other little tech industry cities that have no understanding of local context to make the final decisions here.

And so what we need to do is we need to build more robust institutions to include both global and local and affected countries, grassroots participation, in making these decisions. And I'm trying to sort of sketch out what the design for those might look like. But, you know, talk to me in about a year. And hopefully, I'll have a book for you that will actually have a sketch.

Tobi;

You bet I'm going to hold you to that. So, a year from now. So still on the question of ideas, because the show is about ideas. What's the one idea you'd like to see spread everywhere?

Paul;

Oh, gosh, you should have warned me in advance... that... I'm going to go back to what I said at the very beginning about the rule of law. Like I think that the rule of law depends on people, right? Like there is no such thing as the rule of law without a society and a legal system that genuinely is equal and advantageous to ordinary people enough to be the kind of thing that people actually support.

Like ordinary people... if you cannot recruit the support of ordinary people for your legal political and social system, you cannot have the rule of law. That's true whether you're a developing country, that's true whether you're the United States, right. Like I think, you know, part of the reason that we got Donald Trump in the United States, I think, is because our legal system and with it our economy, and all the rest are so unequal in this country, that ordinary voters in the United States didn't see any reason to preserve it.

Right and so when this lunatic and I mean, I'm just going to be quite frank here and say Donald Trump is a complete lunatic, right... when this lunatic is running for office who shows total disregard for existing institutions, like complete willingness to casually break the law.

An electorate that actually was full of people who felt (themselves) treated respectfully and protected and supported by our legal and political institutions would have sent that guy packing in a heartbeat. But because the American people don't have that experience right now, I think that's what made us vulnerable to somebody like Donald Trump.

Tobi;

Thank you so much, Paul. It's been so fascinating talking to you.

Paul;

Thank you. This has been a lot of fun. Yeah, I'm happy to come back in a year when I've got the platform thing done.

Tobi;

Yeah, I'm so looking forward to that.

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The problem of the rule of law is inescapable in any society - and even more especially in the context of economic development. Policies that promote prosperity cannot be devoid of considerations for the rights of people who make up the society and the economy, regardless of all technocratic pretensions otherwise. Adam Smith himself stated that economic prosperity thus requires ''a tolerable administration of justice''. Some readers might already start objecting to my treatment of the rule of law as merely an ''instrumental variable'' of a more desirous economic end-state, whereas the more familiar treatment is that of a society governed by the rule of law as an end-state in itself. There are merits to such quibbles, but there is also plenty of evidence in modern history that the rule of law is an essential cog in the wheel of prosperity.

WHAT IS ''RULE OF LAW''?

''Rule of law'' is the generally accepted description for how well a political system conforms to formal rules - rather than functioning through the whims of the most powerful social or political agents. For a society to be described as one functioning under rule of law - there must be rules and those rules must be equally applied to everyone in the society. Let us call this Letter of the Law. These rules are usually expressed through the constitution of a country and enforced through the courts. But simply having rules and enforcing them does not suffice in the making of the rule of law - and it is an incomplete (however accurate) conception of it. Some rules can be drafted in bad faith or with the express purpose of protecting the interest of the political elites responsible for governance. This is why many scholars have argued that the rule of law can only be said to exist in a state that functions under rules designed to protect the civil liberties (individual rights, freedom of speech, freedom of association, etc.) of the people living within its territory. Let us call this the Character or Spirit of the Law.

The character of the law understood as the fulfilment of constitutionally-guaranteed civil liberties is the most common standard by which governance is judged to conform or deviate from the rule of law. For example, countries that routinely violate the rights of citizens in whatever form cannot be said to be governed by the rule of law, even if it has a written constitution. Consideration of the character of the law is the context to understanding the work of my guest on this episode, Paul Gowder.

He is a professor of law at NorthWestern university with a broad research interest and expertise. Paul departs from this common derivation of the character of the law as rooted in liberty - and argued that for the rule of law to be broadly applicable in different societies (not dependent on the political institutions and ethical ideals of any specific society) with varying cultures and traditions of governance, it must be rooted in Equality. To understand Paul's argument, I will briefly state two important aspects that set the tone for our conversation - this should not be taken as an exhaustive summary of his work and I encourage you to check out his website and book. The first is that the rule of law as a principle regulates the actions of the state (government), and it is not to be conflated with other rules that regulate the actions of citizens.

This is such an important point because one of the most egregious expressions of the law is when a government uses it to oppress citizens. Secondly, Paul outlines three components of the rule of law based on equality as 1) regularity - the government can only use coercion when it is acting in ''good faith'' and under ''reasonable interpretation'' of rules that already exist and are specific to the circumstances. 2) publicity - the law has to be accessible to everyone without barriers (''officials have a responsibility to explain their application of the law, ...failure to do so commits hubris and terror against the public"). 3) generality - the law must be equally applicable to all. Putting all these elements together gives us a rule of law regime where everyone is equal before the law, and the state does not wantonly abuse citizens or single out particular groups for systematic abuse.

I enjoyed this conversation very much, and I want to thank Paul for talking to me. Thank you guys too for always listening, and for the other ways you support this project.

TRANSCRIPT

Tobi;

I greatly enjoyed your work on the rule of law. I've read your papers, I've read your book, and I like it very much. I think it's a great public service if I can say that because for a lot of time, I am interested in economic development and that is mostly the issue that this podcast talks about. And what you see in that particular conversation is there hasn't really been that much compatibility between the question of the rule of law or the laws that should regulate the actions of the state, and its strategy for economic development.

Most of the time, you often see even some justification, I should say, to trample on rights in as much as you get development, you get high-income growth for it. And what I found in your work is, this does not have to be so. So what was your eureka moment in coming up with your concept, we are going to unpack a lot of the details very soon, but what motivated you to write this work or to embark on this project?

Paul;

Yeah, I think for me, part of the issue that really drives a lot of how I think about the rule of law and you know, reasons behind some of this work is really a difference between the way that those of us who think about human freedom and human equality, right? I think of it as philosophers, right. So they're philosophers and philosophers think about the ability of people to live autonomous lives, to sort of stand tall against their government, to live lives of respect, and freedom and equality.

And that's one conversation. And so we see people, like, you know, Ronald Dworkin, thinking about what the rule of law can deliver to human beings in that sense. And then, you know, there's this entire development community, you know, the World Bank, lots of the US foreign policy, all of the rest of those groups of people and groups of ideas, talk about the rule of law a lot and work to measure the rule of law and invest immense amounts of money in promoting what they call the rule of law across the world.

But mostly, it seems to be protecting property rights for multinational investment. And I mean, that makes some kind of sense, if you think that what the rule of law is for is economic development, is increasing the GDP of a country and integrating it into favourable international networks of trade. But if you think that it's about human flourishing, then you get a completely different idea of what the rule of law can be, and should be.

And so this sort of really striking disjuncture between the two conversations has driven a lot of my work, especially recently, and especially reflecting even on the United States, I think that we can see how domestic rule of law struggles - which we absolutely have, I mean, look at the Trump administration, frankly, as revolving around this conflict between focusing on economics and focusing on human rights and human wellbeing.

Tobi;

It's interesting the polarization you're talking about. And one way that I also see it play out is [that] analyst or other stakeholders who participate in the process of nation-building in Africa, in Nigeria… a lot of us that care about development and would like to see our countries grow and develop and become rich, are often at opposite ends with other people in the civil society who are advocating for human rights, who are advocating for gender equality, who are advocating for so many other social justice issues.

And it always seems like there's no meeting ground, you know, between those set of views, and I believe it does not have to be so. So one thing I'm going to draw you into quite early is one of the distinctions you made in so many of your papers and even your book is the difference between the conception of the rule of law that you are proposing versus the generally accepted notion of the rule of law based on individual liberty in the classical liberal tradition.

I also think that's part of the problem, because talking about individual liberty comes with this heavy ideological connotation, and giving so many things that have happened in Africa with colonialism and so many other things, nobody wants any of that, you know. So you are proposing a conception of the rule of law that is based on equality.

Tell me, how does that contrast with this popularly accepted notion of the rule of law [which is] based on individual liberty?

Paul;

So I think the way to think about it is to start with the notion of the long term stability of a rule of law system. And so here is one thing that I propose as a fact about legal orders. Ultimately, any kind of stable legal order that can control the powerful, that is, that can say to a top-level political leader, or a powerful multinational corporation, or whomever, no, you can't do this, this violates the law and make that statement stick depends on widespread collective mobilization, if only as a threat, right.

And so it's kind of an analytic proposition about the nature of power, right? If you've got a top-level political leader who's in command of an army, and they want to do something illegal, it's going to require very broad-based opposition, and hence very broad-based commitment to the idea of leaders that follow the law in order to prevent the person in charge of an army from just casually violating it whenever they want.

Okay, accept that as true, what follows from that? Well, what follows from that is that the legal system has to actually be compatible with the basic interests of all. And what that tends to mean and I think this is true, both historically, and theoretically, is leaving aside the philosophical conceptual difference between liberty and equality, which I'm not sure is really all that important. Like I think, ultimately, liberty and equality as moral ideas tend to blur together when you really unpack them.

But practically speaking, any stable legal order that can control the powerful has to be compatible with the interests of a broad-based group of the human beings who participate in that legal order. And what that entails is favouring a way of thinking about the rule of law that focuses on being able to recruit the interests of even the worst off.

In other words, one that's focused on equality, one that's focused on protecting the interests of the less powerful rather than a laissez-faire libertarian conception of the rule of law that tends to be historically speaking, compatible with substantial amounts of economic inequality, hyper-focus on ideas - like property rights, that support the long-standing interests of those who happen to be at the top of the economy, often against the interests of those that happened to be at the bottom of the economy, right. That's simply not a legal order that is sustainable in the long run.

Lately, I've been thinking a lot about the way that this has played out in [the] United States history, in particular. I might have a book that's coming out in December that focuses on a historical account of the development of the rule of law, particularly in the United States. I mean, it's my own country. And so at some point, I had to get talked into writing that book.

And we can see that in our history right at the get-go, you know, in the United States, at the very beginning, the rule of law dialogue tended to be focused on protecting the interests of wealthy elite property holders. And this actually played a major part, for example, in the United States' most grievous struggle, namely the struggle over slavery, because slaveholders really relied on this conception of the Rule of Law focusing on individual freedom and property rights to insist on a right to keep holding slaves against the more egalitarian idea that “hey, wait a minute, the enslaved have a right to be participants in the legal system as well.”

And so we can see these two different conceptions of legality breaking the United States and breaking the idea of legal order in the United States right at the get-go. And we see this in country after country after country. You know, another example is Pinochet's Chile, which was the victim of [the] United States' economics focused rule of law promotion efforts that favoured the interests of property holders under this libertarian conception over the interests of ordinary citizens, democracy and mass interests. In other words, over the egalitarian conception, and again, you know, devolved into authoritarianism and chaos.

Tobi;

Yeah, nice bit of history there, but dialling all the way, if you'll indulge me... dialling all the way to the present, or maybe the recent past, of course; where I see another relevance and tension is development, and its geopolitical significance and the modernization projects that a lot of developed countries have done in so many poor and violent nations, you know, around the world.

I mean, at the time when Africa decolonized, you know, a lot of the countries gravitated towards the communist bloc, socialism [and] that process was shunted, failed, you know, there was a wave of military coups all over the continent, and it was a really dark period.

But what you see is that a lot of these countries, Nigeria, for example, democratized in 1999, a lot of other countries either before then or after followed suit. And what you see is, almost all of them go for American-style federal system, and American-style constitutional democracy, you know. And how that tradition evolved... I mean, there's a lot you can explain and unpack here... how that tradition evolved, we are told is the law has a responsibility to treat people as individuals.

But you also find that these are societies where group identities are very, very strong, you know, and what you get are constitutions that are weakly enforced, impractical, and a society that is perpetually in struggle. I mean, you have a constitution, you have rules, and you have a government that openly disregards them, because the constitutional tradition is so divorced from how a lot of our societies evolve.

And what I see you doing in your work is that if we divorce the rule of law from the ideal society, you know [like] some societies that we look up to, then we can come up with a set of practical propositions that the rule of law should fulfil, so walk me through how you resolve these tensions and your propositions?

Paul;

Well, so it's exactly what you just said, right? I mean, we have to focus on actual existing societies and the actual way that people organize their lives, right. And so here's the issue is, just like I said a minute ago, the rule of law fundamentally depends on people. And when I say people, I don't just mean elites. I don't just mean the wealthy, I don't just mean the people in charge of armies, and the people in charge of courthouses, right?

Like the rule of law depends, number one, on people acting collectively to hold the powerful to the law. And number two, on people using the institutions that we say are associated with the rule of law. And so just as you describe, one sort of really common failure condition for international rule of law development efforts - and I don't think that this is a matter of sort of recipient countries admiring countries like the US, I think this is a matter of international organizations and countries like the US having in their heads a model of what the law looks like and sort of pressing it on recipient countries.

But you know, when you build institutions that don't really resemble how the people in a country actually organize their social, political and legal lives, you shouldn't be surprised when nobody uses them. You shouldn't be surprised when they're ineffective.

But I mean, I think that it's been fairly compared to a kind of second-generation colonialism in that sense where countries like the US and like Germany, attempt to export their legal institutions to other countries, without attending to the ways that the people in those countries already have social and legal resources to run their lives.

And so I'll give you an example that's interesting from Afghanistan. So in Afghanistan, sort of post the 2000s invasion, and so forth, some researchers, mostly affiliated with the Carnegie Institution, found that the really effective rule of law innovations, the really effective interventions were ones that relied on existing social groups and existing structures of traditional authority.

And so, you know, you could build a courthouse and like, ask a formal centralized state to do something, maybe it would work, maybe it wouldn't, maybe people would use it, maybe they wouldn't. But if you took local community leaders, local religious leaders, gave them training, and how to use the social capital they already have to help do things like adjudicate disputes, well, those would actually be effective, because they fit into the existing social organization that already exists.

So I'll give you another example. I have a student who... I had… I just graduated an S.J.D student from Uganda who wrote a dissertation on corruption in Uganda. And one of the things that he advocated for I think, really sensibly was, “ okay, we've got this centralized government, but we've also got all of these traditional kingdoms, and the traditional kingdoms, they're actually a lot more legitimate in the sociological sense than the centralized government.

People trust the traditional kingdoms, people rely on the traditional kingdoms for services, for integrating themselves into their society. And so one useful way of thinking about anti-corruption reforms is to try and empower the traditional kingdoms that already have legitimacy so that they can check the centralized government. And so that kind of work, I think, is where we have real potential to do global rule of law development without just creating carbon copies of the United States.

Tobi;

The process you describe, I will say, as promising as it may sound, what I want to ask you is how then do you ensure that a lot of these traditional institutions that can be empowered to provide reasonable checks to the power of the central government also fulfil the conditions of equality in their relation to the general public? Because even historically, a lot of these institutions are quite hierarchical...

Paul;

Oh, yeah... and I think in particular, women's rights are a big problem.

Tobi;

Yeah, yeah and there's a lot of abuses that go on locally, even within those communities, you know. We have traditional monarchies who exercise blanket rights over land ownership, over people's wives, over so many things, you know, so how then does this condition of equality transmit across the system?

Paul;

Yeah, no, I think that's the really hard question. I tell you right now that part of the answer is that those are not end-state processes. By this I mean that any realistic conception of how we can actually build effective rule of law institutions, but also genuinely incorporate everyone's interests in a society is going to accept that there's going to be a kind of dynamic tension between institutions.

You know, sometimes we're going to have to use the centralized state to check traditional institutions. Sometimes we're going to have to use traditional institutions to check the centralized state. Elinor Ostrom, Nobel Prize-winning political scientist and her sort of the Bloomington School of Political Economy, emphasized for many years this idea that they called Polycentrism.

That is the idea that multiple, overlapping governance organizations that are sort of forced to negotiate with one another, and forced to learn from one another, and really integrate with one another in this sort of complex tension-filled kind of way, actually turns out to be a really effective method of achieving what we might call good governance.

And part of the reason is because they give a lot of different people, in different levels of [the] organization, ways to challenge one another, ways to demand inclusion in this decision, and let somebody else handle that decision, and participate jointly in this other decision. And so I think that neither the centralized state alone, nor traditional institutions alone is going to be able to achieve these goals.

But I think efforts to integrate them have some promise. And India has done a lot of work, you know, sort of mixed record of success, perhaps, but has done a lot of work in these lines. I think, for example, of many of the ways that India has tried to promote the growth of Panchayats, of local councils in decision making, including in law enforcement, but at the same time, has tried to do things like promote an even mandate, the inclusion of women, the inclusion of Scheduled Castes, you know, the inclusion of the traditionally subordinated in these decision making processes.

And as I said, they haven't had complete success. But it's an example of a way that the centralized state can both support traditional institutions while pushing those institutions to be more egalitarian.

Tobi;

Let's delve into the three conditions that you identified in your work, which any rule of law state should fulfil. And that is regularity, publicity, and generality. Kindly unpack those three for me.

Paul;

Absolutely. So regularity is...we can think of it as just the basic rule of law idea, right? Like the government obeys the law. And so if you think about this notion of regularity, it's... do we have a situation where the powerful are actually bound by legal rules? Or do we have a situation where, you know, they just do whatever they want? And so I'd say that, you know, there's no state that even counts as a rule of law state in the basic level without satisfying that condition, at least to some reasonable degree.

The idea of publicity really draws on a lot of what I've already been saying about the recruitment of broad participation in the law. That is, when I say publicity, what I mean is that in addition to just officials being bound by the law, ordinary people have to be able to make use of the law in at least two senses.

One, they have to be able to make use of the law to defend themselves. I call this the individualistic side of publicity, right? Like if some police officer wants to lock you up, the decision on whether or not you violated the law has to respond to your advocacy, and your ability to defend yourself in some sense.

And then there's also the collective side of this idea of publicity, which is that the community as a whole has to be able to collectively enforce the boundaries of the legal system. And you know, we'd talk a lot more about that, I think that's really the most important idea.

And then the third idea of generality is really the heart of the egalitarian idea that we've been talking about, which is that the law has to actually treat people as equals. And one thing that I think is really important about the way that I think about these three principles is that they're actually really tightly integrated.

By tightly integrated, I mean you're only going to get in real-world states, regularity (that is, officials bound by the law) if you have publicity (that is, if you have people who aren't officials who actually can participate in the legal system and can hold officials to the law). We need the people to hold the officials in line.

You're only going to get publicity if you have generality. That is, the people are only going to be motivated to use the legal system and to defend the legal system if the legal system actually treats them as equals. And so you really need publicity to have stable regularity, you really need generality to have stable publicity.

Tobi;

Speaking of regularity, when you say what constrains the coercive power of the state is when it is authorised by good faith and reasonable interpretation of pre-existing reasonably specific rules. That sounds very specific. And it's also Scalonian in a way, but a lot of people might quibble a bit about what is reasonable, you know, it sounds vague, right?

So how would you condition or define reasonable in this sense, and I know you talked about hubris when you were talking about publicity. But is there a minimum level of responsibility for reasonability on the part of the citizen in relation to a state?

Paul;

That's, in a lot of ways, the really hard philosophical question, because one of the things that we know about law is that it is inherently filled with disagreement, right? Like our experience of the legal system and of every state that actually has something like the rule of law is that people radically disagree about the legal propriety of actions of the government.

And so in some sense, this idea of reasonableness is kind of a cop-out. But it's a cop-out that is absolutely necessary, because there's no, you know, what [Thomas] Nagel called a view from nowhere. There's no view from nowhere from which we can evaluate whether or not on a day to day basis, officials are actually complying with the law in some kind of correct sense.

But again, I think, you know, as you said, to some extent, that implies that some of the responsibility for evaluating this reasonableness criterion falls down to day to day politics, falls down to the judgment of ordinary citizens. Like, my conception of the rule of law is kind of sneakily a deeply democratic conception, because it recognizes given the existence of uncertainty as to what the law actually requires of officials both on a case by case basis.

And, broadly speaking, the only way that we're ever going to be able to say, Well, you know, officials are more or less operating within a reasonable conception of what their legal responsibilities are, is if we empower the public at large to make these judgments. If we have institutions like here in the US, our jury trials, if we have an underlying backstop of civil society and politics, that is actively scrutinizing and questioning official action.

Tobi;

So speaking of publicity, which is my favorite...I have to say...

Paul;

Mine too. You could probably tell.

Tobi;

Because I think that therein lies the power of the state to get away with abusive use of its legitimacy, or its power, so to speak. When you say that officials have a responsibility to explain their application of the law, and a failure to do so commits hubris and terror against the public. So those two situations - hubris and terror, can you explain those to me a bit?

Paul;

Yeah. So these are really, sort of, moral philosophy ideas at heart, particularly hubris. The idea is there's a big difference, even if I have authority over you, between my exercising that authority in the form of commands and my exercising that authority in the form of a conversation that appeals to your reasoning capacity, right.

So these days, I'm thinking about it in part with reference to... I'm going to go very philosophical with you here... but in reference to Kant's humanity formulation of the categorical imperative, sorry.

But that is a sense in which if I'm making decisions about your conduct, and your life and, you know, affecting your fundamental interests, that when I express the reasons to you for those decisions, and when I genuinely listen to the reasons that you offer, and genuinely take those into account in my decision making process, I'm showing a kind of respect for you, which is consistent with the idea of a society of equals.

As opposed to just hi, I'm wiser than you, and so my decision is, you know, you go this way, you violated the law, right? Are we a military commander? Or are we a judge? Both the military commander and the judge exercise authority, but they do so in very different ways. One is hierarchical, the other I would contend is not.

Tobi;

Still talking about publicity here, and why I love it so much is one important, should I say… a distinction you made quite early in your book is that the rule of law regulates the action of the state, in relation to its citizens.

Paul;

Yes.

Tobi;

Often and I would count myself among people who have been confused by that point as saying that the rule of law regulates the action of the society in general. I have never thought to make that distinction. And it's important because often you see that maybe when dealing with civil disobedience, or some kind of action that the government finds disruptive to its interests, or its preferences, the rule of law is often invoked as a way for governments to use sometimes without discretion, its enforcement powers, you know.

So please explain further this distinction between the rule of law regulating the state-citizen relation versus the general law and order in the society. I mean, you get this from Trump, you get this from so many other people who say, Oh, we are a law and order society, I'm a rule of law candidate.

Paul;

Oh, yeah.

Tobi;

You cannot do this, you cannot do that. We cannot encourage the breakdown of law and order in the society. So, explain this difference to me.

Paul;

Absolutely, then this is probably the most controversial part of my account of the rule of law. I think everybody disagrees with this. I sort of want to start by talking about how I got to this view. And I think I really got to this view by reflecting on the civil rights movement in the United States in particular, right.

Because, you know, what we would so often see, just as you say about all of these other contexts, is we would see officials, we would see judges - I mean, there are, you know, Supreme Court cases where supreme court justices that are normally relatively liberal and sympathetic, like, you know, Justice Hugo Black scolding Martin Luther King for engaging in civil disobedience on the idea that it threatens the rule of law.

It turns out, and this is something that I go into in the book that's coming out in December... it turns out that King actually had a sophisticated theory of when it was appropriate to engage in civil disobedience and when it wasn't.

But for me, reflecting on that conflict in particular, and reflecting on the fact that the same people who were scolding peaceful lunch-counter-sit-ins for threatening the rule of law and, you know, causing society to descend into chaos and undermining property rights and all the rest of that nonsense, were also standing by and watching as southern governors sent police in to beat and gas and fire hose and set dogs on peaceful protests in this sort of completely new set of like, totally unbounded explosions of state violence.

And so it seems to me sort of intuitively, like these can't be the same problem, right, like ordinary citizens, doing sit-ins, even if they're illegal, even if we might have some reason to criticize them, it can't be the same reason that we have to criticize Bull Connor for having the cops beat people.

And part of the reason that that's the case, and this is what I call the Hobbesian property in the introduction to the rule of law in the real world...part of the reason is just the reality of what states are, right? Like, protesters don't have tanks and police dogs, and fire hoses, right? Protesters typically don't have armies. If they do, then we're in a civil war situation, not a rule of law situation, the state does have all of those things.

And so one of the features of the state that makes it the most appropriate site for this talk about the rule of law is this the state has, I mean, most modern states have, at least on a case by case basis, overwhelming power. And so we have distinct moral reasons to control overwhelming power than we do to control a little bit of legal disobedience, right, like overwhelming power is overwhelming.

It's something that has a different moral importance for its control. Then the second idea is at the same time what I call the [...] property... is the state makes claims about its use of power, right? Like ordinary people, when they obey the law or violate the law, they don't necessarily do so with reference to a set of ideas that they're propagating about their relationship to other people.

Whereas when modern states send troops in to beat people up, in a way what they're doing is they're saying that they're doing so in all of our names, right, particularly, but not exclusively in democratic governments. There's a way in which the state represents itself as acting on behalf of the political community at large. And so it makes sense to have a distinctive normative principle to regulate that kind of power.

Tobi;

I know you sort of sidestepped this in the book, and maybe it doesn't really fit with your overall argument. But I'm going to push you on that topic a bit. So how does the rule of law state as a matter of institutional design then handles... I know you said that there are separate principles that can be developed for guiding citizen actions, you know...

Paul;

Yes.

Tobi;

I mean, let's be clear that you are not saying that people are free to act however they want.

Paul;

I'm not advocating anarchy.

Tobi;

Exactly. So how does the rule of law state then handle citizens disagreements or conflicting interests around issues of social order? And I'll give you an example. I mentioned right at the beginning of our conversation what happened in Nigeria in October 2020.

There's a unit of the police force that was created to handle violent crimes. Needless to say that they went way beyond their remit and became a very notoriously abusive unit of the police force.

Picking up people randomly, lock them up, extort them for money. And there was a situation where a young man was murdered, and his car stolen by this same unit of the police force and young people all over the country, from Lagos to Port Harcourt to Abuja, everywhere, felt we've had enough, right, and everybody came out in protest.

It was very, very peaceful, I'd say, until other interests, you know, infiltrated that action.

Paul;

Right.

Tobi;

But what I noticed quite early in that process was that even within the spirits of that protests, there were disagreements between citizens - protesters blocking roads, you know, versus people who feel well, your protest should not stop me from going to work, you know, and so many other actions by the protesters that other people with, maybe not conflicting interests, but who have other opinions about strategy or process feel well, this is not right.

This is not how to do this. This is not how you do this, you know, and I see that that sort of provided the loophole, I should say, for the government to then move in and take a ruthlessly violent action. You know, there was a popular tollgate in Lagos in the richest neighbourhood in Lagos that was blocked for 10 days by the protesters. And I mean, after this, the army basically moved in and shot people to death.

Today, you still see people who would say, Oh, well, that's tragic. But should these people have been blocking other people from going about their daily business? So how does the rule of law regulate issues of social order vis-a-vis conflict of interest?

Paul;

So I think this is actually a point in favour of my stark distinction between state action and social action as appropriate for thinking about the rule of law. Because when you say that the state used...what I still fundamentally think of as like minor civil disobedience...so, like blocking some roads, big deal!

Protesters block roads all the time, right, like protesters have blocked roads throughout human history, you know, like, sometimes it goes big, right? Like they love blocking roads in the French Revolution. But oftentimes, it's just blocking... so I blocked roads.

I participated in, you know, some protests in the early 2000s. I participated in blocking roads in DC, right, like, fundamentally "big deal!" is the answer that the state ought to give. And so by saying to each other and to the government, when we talk about the rule of law, we mean, the state's power has to be controlled by the law, I think that gives us a language to say... even though people are engaging in illegal things, the state still has to follow legal process in dealing with it, right.

The state still has to use only the level of force allowed by the law to arrest people. The state can't just send in the army to shoot people. And the principle that we appeal to is this principle of the rule of law.

Yeah, maintaining the distinction between lawbreaking by ordinary people and law-breaking by the state helps us understand why the state shouldn't be allowed to just send in troops whenever people engage in a little bit of minor lawbreaking and protests.

Tobi;

So how does the law... I mean, we are entering a bit of a different territory, how does the law in your conception handles what... well, maybe these are fancy definitions, but what some people will call extraordinary circumstances. Like protests with political interests? Maybe protesters that are funded and motivated to unseat an incumbent government?

Or in terrorism, you know, where you often have situations where there are no laws on paper to deal with these sort of extraordinary situations, you know, and they can be extremely violent, they can be extremely strange, they're usually things that so many societies are not equipped to handle.

So how should the rule of law regulate the action of the state in such extraordinary circumstances?

Paul;

Yeah, so this is the deep problem of the rule of law, you know, this is why people still read Carl Schmitt, right, because Carl Schmitt's whole account of executive power basically is, hey, wait a minute emergencies happen, and when emergencies happen, liberal legal ideas like the rule of law dropout, and so fundamentally, you just have like raw sovereignty. And that means that the state just kind of does what it must. Right.

So here's what I feel about Schmitt. One is, maybe sometimes that's true, right? And again, I think about the US context, because I'm an American and you know, I have my own history, right? And so in the US context, I think, again, about, Abraham Lincoln and the Civil War, right.

Like Abraham Lincoln broke all kinds of laws in the Civil War. Like today, we'd call some of the things that he did basically assuming dictatorial power in some respects. I mean, he did that in the greatest emergency that the country had ever faced and has ever faced since then. And he did it in a civil war. And sometimes that happens, and I think practically speaking, legal institutions have a habit of not standing in the way in truly dire situations like that.

But, and here's why I want to push back against Carl Schmitt... but what a legal order can then do is after the emergency has passed...number one, the legal order can be a source of pressure for demanding and accounting of when the emergency has passed, right. And so again, I think of the United States War on Terror, you know, we still have people in United States' custody imprisoned at Guantanamo Bay.

September 11 2001, was almost 20 years ago. It's actually 20 years ago and a month, and we still have people locked up in Guantanamo Bay. That's insane. That's completely unjustifiable. And one of the jobs of the legal system is to pressure the executive to say, okay, buddy, is the emergency over yet? No, really, we think that the emergency is over yet. I want reasons, right, publicity again, I want an explanation from you of why you think the emergency is still ongoing. And the legal system can force the executive to be accountable for the claim that the emergency is still ongoing.

That's number one. Number two is that law tends to be really good at retroactively, sort of, retrofitting things into legal order, right. And so again, I think about the Civil War. You know, after the US Civil War, lots of civil wars, sorry. American-centric person trying to fight against it.

But after the US Civil War, you know, the courts took a pause. And then we have a lot of cases where they took a lot of the things that Lincoln did, they said, okay, some of them at least were illegal, some of them were legal, but only under very specific circumstances.

And so they actually built legal doctrine that took into account the emergency that Lincoln faced, and then later wars, such as in the Second World War, the courts took the lessons from the experience in the American Civil War, and used that to impose more constraints.

So to bring it about that the emergency actions that Franklin Roosevelt took in the Second World War weren't completely sui generis, sort of like right acts of sovereignty, but were regulated by legal rules created during the Civil War, and after the Civil War.

And again, they weren't perfect, right? You know, during the Second World War, the United States interned Japanese Americans, you know, again, sort of completely lawless, completely unjustifiable, but you know, it's an ongoing process. The point is that the legal system is always... the law is always reactive in emergencies.

But the reactive character of the law can nonetheless be used as a way to control and channel sovereign power, even in these sort of Schmittian emergency situations.

Tobi;

So two related questions, your work is interdisciplinary, because you try to blend a lot of social science into legal philosophy. But speaking of legal order and your primary profession, I mean.. for the sake of the audience parties into a lot of other cool stuff, I'm going to be putting up his website in the show notes.

But speaking of legal order, and the legal profession, why is so much of the legal profession fascinated with what I would say the rule by law, as opposed to the rule of law. A lot of what you get from lawyers, even some law professors in some situations is [that] the law is the law, and you have to obey it.

And even if you are going to question it, however unjustified it may seem, you still have to follow some processes that maybe for ordinary citizens are not so accessible or extremely costly, you know, which I think violate regularity, right, the way you talk about it retrospective legislation, and so many other things. So why is the legal profession so fascinated with the law, as opposed to justification for the law?

Paul;

Yeah, I think that question kind of answers itself, right. It's unfortunate... I mean, it's sort of natural but it's unfortunate that the people who most influence our dialogue about the way that we, you know, live in [the] society together with a state, namely by organizing ourselves with law happen to be people who are the specialists who find it easiest, right?

And so I think the simple answer is right on this one, at least in countries like the United States, I'm not sure how true this is in other countries. But in the United States, the domination of legal discourse by lawyers necessarily means that the sort of real practical, real-world ways in which ordinary people find interacting with anything legal to be difficult, oppressive, or both just aren't in view, right? This is hard for them to understand.

But I think in the US, one of the distortions that we've had is that we have an extremely hierarchical legal profession, right. So we have very elite law schools, and those very elite law schools - one of which I teach at - tend to predominantly produce lawyers who primarily work for wealthy corporations and sort of secondarily work for the government. Those lawyers tend to be the ones that end up at the top of the judiciary, that end up in influential positions in academia, that end up, you know, in Congress.

The lawyers that, you know, see poor people, see people of subordinated minority groups and see the very different kinds of interactions with the legal system that people who are worse off have, that see the way that the law presents itself, not as a thing that you can use autonomously to structure your own life. But as a kind of external imposition, that sort of shows up and occasionally inflicts harm on you.

Those lawyers aren't the ones who end up in our corridors of power. And it's very unfortunate, it's a consequence of the hierarchical nature of, at least in the US, our legal profession. And I suspect it's similar in these other countries as well.

Tobi;

In your opinion, what's the... dare I say the sacrosanct and objective - those are rigid conditions sorry - expression of the rule of law? The current general conception of the rule accedes to the primacy of the Constitution, right.

I've often found that problematic because in some countries you find constitutional provisions that are egregious, and in other cases, you find lawyers going into court to challenge certain actions that they deem unjust, or that are truly unjust on the basis of the same constitution. Right. So what do you think is the most practical expression of the rule of law? Is it written laws? Is it the opinion of the judges? Is it how officials hold themselves accountable? What's the answer?

Paul;

So I think I'm gonna like sort of twist this a little bit and interpret that question is like, how do you know the extent to which the rule of law exists in a particular place? And my answer is, can ordinary people look officials in the eye, right, you know... if you're walking down the street, and you see a police officer, you know, are you afraid? Or can you walk past them and confidently know you're doing nothing wrong so there's nothing really effectively but they can do to you, right?

If you're called in to deal with some kind of bureaucratic problem, like the tax office, can you trust that you exist in a relationship of respect? You know, can you trust that when you show them, actually here are my receipts, I really did have that expense, that that's going to be taken seriously? You know, if people, everybody, feels like they can stand tall, and look government officials in the eye, then to that extent, I think that the rule of law exists in a society.

Tobi;

Final question, what's the coolest idea you're working on right now?

Paul;

Oh, gosh. So like I said, I've got two books under contract right now. The first book is a history/theoretical constitutional law account of the development and existing state of the rule of law in the United States.

The second book, which I'm more excited about, because it's the one that I plan to write this year, but it's also a lot harder, is I'm trying to take some of the governance design ideas that we see from the notion of rule of law development, and others such as governance development things and apply them to Private Internet platforms, right? Like, basically to Facebook.

Um, I was actually involved in some of the work, not at a super high level, but I was involved in some of the work in designing or doing the research for designing Facebook's oversight board. And I'm kind of trying to expand on some of those ideas and think about, you know, if we really believe that private companies, especially in these internet platforms are doing governance right now, can we take lessons from how the rest of the world and how actual governments and actual states have developed techniques of governing behaviour in highly networked, large scale super-diverse environments and use those lessons in the private context?

Maybe we can maybe we can't I'm not sure yet. Hopefully, by the time I finish the book, I'll know.

Tobi;

That's interesting. And I'll ask you this, a similar, I'll say a related situation is currently happening in Nigeria right now, where the President's Twitter handle or username, tweeted something that sounded like a thinly veiled threat to a particular ethnic group. And lots of people who disagreed with that tweet reported the tweet, and Twitter ended up deleting the tweet in question, which high-level officials in Nigeria found extremely offensive, and going as far as to assert their sovereign rights over Twitter and say, well, it may be your platform, but it is our country and we are banning you.

How would you adjudicate such a situation? I mean, there's the question of banning Donald Trump from the platform and so many other things that have come up.

Paul;

Yeah, I mean, it's hard, right? So there are no easy answers to these kinds of problems. I think, ultimately, what we have to do is we have to build more legitimate ways to make these decisions. I mean, here are two things that we cannot do, right?

Number one is we can't just let government officials, especially when, you know, as with the Donald Trump example, and so many others, the government officials are the ones who are engaging in the terrible conduct make these decisions.

Number two is we also just can't let a bunch of people sitting in the Bay Area in California make those decisions. Like, ultimately, this is on, you know, property in some abstracted sense of like the shareholders of these companies. But we cannot simply allow a bunch of people in San Francisco, in Menlo Park, and you know, Cupertino and Mountain View, and all of those other little tech industry cities that have no understanding of local context to make the final decisions here.

And so what we need to do is we need to build more robust institutions to include both global and local and affected countries, grassroots participation, in making these decisions. And I'm trying to sort of sketch out what the design for those might look like. But, you know, talk to me in about a year. And hopefully, I'll have a book for you that will actually have a sketch.

Tobi;

You bet I'm going to hold you to that. So, a year from now. So still on the question of ideas, because the show is about ideas. What's the one idea you'd like to see spread everywhere?

Paul;

Oh, gosh, you should have warned me in advance... that... I'm going to go back to what I said at the very beginning about the rule of law. Like I think that the rule of law depends on people, right? Like there is no such thing as the rule of law without a society and a legal system that genuinely is equal and advantageous to ordinary people enough to be the kind of thing that people actually support.

Like ordinary people... if you cannot recruit the support of ordinary people for your legal political and social system, you cannot have the rule of law. That's true whether you're a developing country, that's true whether you're the United States, right. Like I think, you know, part of the reason that we got Donald Trump in the United States, I think, is because our legal system and with it our economy, and all the rest are so unequal in this country, that ordinary voters in the United States didn't see any reason to preserve it.

Right and so when this lunatic and I mean, I'm just going to be quite frank here and say Donald Trump is a complete lunatic, right... when this lunatic is running for office who shows total disregard for existing institutions, like complete willingness to casually break the law.

An electorate that actually was full of people who felt (themselves) treated respectfully and protected and supported by our legal and political institutions would have sent that guy packing in a heartbeat. But because the American people don't have that experience right now, I think that's what made us vulnerable to somebody like Donald Trump.

Tobi;

Thank you so much, Paul. It's been so fascinating talking to you.

Paul;

Thank you. This has been a lot of fun. Yeah, I'm happy to come back in a year when I've got the platform thing done.

Tobi;

Yeah, I'm so looking forward to that.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com

I had a great conversation with David Roodman - researcher and senior adviser at Open Philanthropy. He played an important role in helping us understand and interpret the evidence on the microfinance phenomenon that was sweeping through the development community a little while back. We also talked about his work in evaluating foreign aid, how his background in mathematics has helped him throughout his career, and why he writes so well.

The transcript for this episode is available for paid subscribers.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com

I had a very stimulating conversation with Nathan Lane. Nathan is an empirical economist and an Associate Professor of economics at the University of Oxford. His research focuses on the political economy of development, the economics of the state, and Industrial Policy. Nathan's work combines new methods from data science and traditional micro-data to understand questions at the heart of economic development -in particular, industrial development.

His work has focused on the policies behind the East Asian miracle, and the comparative experience of Asian economies. We discussed Industrial Policy in this conversation - and Nathan brought the careful nuance and clarity that characterizes his research. It was Nathan's research that inspired me to start the newsletter that evolved into the podcast - and I am grateful to him for having this conversation with me.

You can subscribe to the podcast on all the major podcast vendors (major links here) - and you can rate us generously to help others discover the show. If you care about the work my team and I do in bringing you these conversations, then consider supporting us by becoming a paid subscriber or by becoming a patron on Patreon.

This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com

Many low-income countries confront the challenge of transforming from an agrarian or resource-based economy to an industrial economy. We can see this in how countries struggle to diversify their exports and sources of public revenues. Nurturing a policy environment for economic transformation - despite the abundance of literature and example for the recent East Asian experience - is often the hardest part of the challenge.

Joining me on today's episode to explore this and many more is economist Pritish Behuria. He is a Professor of Politics, Governance, and Development at the University of Manchester. He has contributed immensely to the study of the political economy of many development policy paradigms like economic transformation, diversification, and import substitution. I started by asking Pritish whether “Leapfrogging” (growth through bypassing manufacturing into services) is a promising idea or a fad.

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This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit www.ideasuntrapped.com