# Crosscurrents (Vol. 2 No. 2) **URL:** **By** David Hart **Published:** June 1, 1983 --- “Quite the contrary: if allowed to develop freely, law evolves out of customs based upon need and experience.” ## Revolution in Central America Several recent books are very helpful in understanding the complex events taking place in Latin America. On the struggle by Christians for human dignity and human rights in the face of ruthless and brutal régimes, see Penny Lernoux, _Cry of the People: The Struggle for Human Rights in Latin America— The Catholic Church in Conflict with U.S. Policy_ (New York: Penguin, 1982). A useful collection of essays, along with an excellent bibliography, by a group sympathetic to the popular movements and opposed to current U.S. policy, is _Revolution in Central America_, ed. Stanford Central America Action Net-actions (Lex Mercatoria),” _Harvard International Law Journal_, 1978, Vol. XIX, No. 1, pp. 221–77. On the benefits of a truly spontaneous modern international merchant law, see Clive M. Schmitthoff, “International Business Law: A New Law Merchant,” _Current Law and Social Problems_, 1961, Vol. II, No. 1, pp. 129–53; Aleksander Goldstajn, “The New Law Merchant,” _Journal of Business Law_, 1961, Vol. XII, pp. 12–17; and Leon E. Trakman, _The Law Merchant: The Evolution of Commercial Law_ (Colorado: Fred B. Rothman, 1983). Let me conclude with a few reflections. Spontaneous ordering in law is not an irrational process. Quite the contrary: if allowed to develop freely, law evolves out of customs based upon need and experience. Men and women develop means of conducting their contractual relationships based upon the belief that a self-ordered relationship is mutually beneficial and superior to conflict or an arbitrarily imposed order. Individuals engage in trade on the common-sense realization that deficiencies in the agreement process can be identified over time and removed if necessary. It must be appreciated that, in order for law to evolve naturally, the legal system should be based upon the attitudes and behavior of those whom the legal system actually affects. Thus, certain aspects of spontaneously-ordered social and economic systems inevitably find their way into a spontaneously-ordered legal system. The main insight that we can gain from the theory of spontaneous ordering is, as Michael Polanyi put it in _The Logic of Liberty: Reflections and Rejoinders_ (University of Chicago Press, 1980), “Wherever we see a well-ordered arrangement of things or men” we should not “instinctively assume that someone has intentionally placed them that way.” Indeed, wherever we find a well-ordered legal system (the Law Merchant or the Common Law system itself), we should appreciate that much of its growth has evolved spontaneously and naturally out of the needs and experiences of men and women. Leon Trakman is a Professor of Law at the Dalhousie Law School, Halifax, Canada. He was a Summer Fellow at the Institute for Humane Studies in 1982 and is the author of _The Law Merchant and The Evolution of Commercial Law_ (Colorado: Fred B. Rothman, 1983). work (Boulder, CO: Westview Press, 1983). For a concise history of U.S. involvement in Central America, see Jenny Pearce, _Under the Eagle: U.S. Intervention on Central America and the Caribbean_ (Boston: South End Press, 1982). On the problems of one of the key countries in U.S. Central American foreign policy, see _El Salvador: Central America in the Cold War_, ed. Marvin E. Gettleman et al. (New York: Grove, 1981), and _Report on Human Rights in El Salvador_, compiled by the Americas Watch Committee and the American Civil Liberties Union (New York: Vintage, 1982). Also recommended is the interview with the Colombian Nobel Laureate for Literature, Gabriel Garcia Márquez, in _Playboy_, February 1983. In this interview the author of _One Hundred Years of Solitude_ and _The Autumn of the Patriarch_ talks about the important role politics plays in his writings and the unfortunate misunderstandings many North Americans have about the nature of the revolutions currently taking place in Latin America. ## War Studies > “The U.S. government has increased its diplomatic, economic, and military support for El Salvador precisely during the period when human rights violations there have accelerated.” > “The violations of human rights taking place in El Salvador are not aberrations. Rather, they are selectively directed against those perceived as opposing the country’s economic and political system.” > > — Report on Human Rights in El Salvador > “The Reagan administration sees any nonconformity by the people of Latin America not as an end product of the miserable condition in those countries but as some kind of Soviet operation. In believing that, the Reagan administration is creating a self-fulfilling prophecy.” > > — Márquez A recent series from the British publisher Fontana, _The Fontana History of European War and Society_, ed. Geoffrey Best, aims to summarize the massive amount of recent literature on the interrelationship between war and the social, political, and economic development of modern Europe. Three volumes have appeared so far: Geoffrey Best, _War and Society in Revolutionary Europe, 1770–1870_ (London: Fontana, 1982); V.G. Kiernan, _European Empires from Conquest to Collapse, 1815–1960_ (London: Fontana, 1982); Brian Bond, _War and Europe, 1865–1955_ (London: Fontana, 1984). Best deals with the military and social changes brought about by the transformation of the French Revolution from a liberal revolution (1789–1792) into the political despotism that culminated in the Napoleonic Empire (1793–1815). Kiernan discusses the savage and bloody manner in which the European powers forged and defended their colonial empires from the end of Napoleon until the period of decolonization after the Second World War. Bond deals with the revolutionary changes in destructive capacity that technology, industrialism, and the authority of the modern state make possible. The deleterious effects of war, both internal and external, were understood by English liberals, many of whom worked assiduously to oppose war and militarism. This is the fascinating subject of J.E. Cookson’s _The Friends of Peace: Anti-War Liberalism in England, 1793–1815_ (Cambridge University Press, 1982). Once again, it is clear that liberalism is intimately tied to opposing the twin evils of war and imperialism. Of particular interest in Cookson’s book is Chapter Three, “The Warring Society,” in which the pacific tendency of the market is contrasted with the warlike qualities of the aristocracy and the problems of class and class interest figure prominently. Geoffrey Best has also written a history of the attempts to mollify the destructive effects of war, _Humanity in Warfare: The Modern History of the International Law of Armed Conflicts_ (London: Methuen, 1983). The belief that war could be limited by certain customary practices and the strict adherence to an international code of law is a legacy of the optimism of the liberal enlightenment. It became a platitude of nineteenth-century liberalism that industrial development and material progress would eliminate once and for all the major causes of war. See the classic work by Edmund Silberner, _The Problem of War in Nineteenth-Century Economic Thought_ (New Jersey: Princeton University Press, 1946) and W.B. Gallie, _Philosophers of Peace and War: Kant, Clausewitz, Marx, Engels, and Tolstoy_ (Cambridge University Press, 1979) for a discussion of the pacific legacy of the enlightenment and the naive optimism of nineteenth-century liberalism. > “The government’s economic policy was actually accelerating the redistribution of wealth in favour of the rich, the Friends of Peace argued, because taxation ultimately profited the creditors of the state and the availability of paper credit allowed the ‘great capitalists’ to expand their operations.” ## Textbook on Modern Political Theory In the previous issue of the _Humane Studies Review_ we reviewed a guide to economics textbooks for those looking for free-market alternatives to the usually unpleasant fare foisted upon undergraduates. The same problem is faced by students of political science and, although there is no guide to textbooks as such, there is at least one textbook on political theory we are happy to recommend: Norman Barry’s _An Introduction to Modern Political Theory_ (London: Macmillan, 1981). It is refreshing to see a textbook that explicitly adopts what Barry calls a “liberal-rationalist” position and where the ideas of Hayek, Friedman, Rothbard, Nozick, and Buchanan are taken seriously and discussed at length. However, the book lacks a discussion of class analysis (apart from a rather brief and unsatisfactory mention of Pareto’s and Mosca’s theory of elites), a subject that is of central importance to libertarian political theory. The best introduction to libertarian class theory is still Albert Jay Nock, _Our Enemy the State_ (New York: Free Life Editions, 1973), introduced by Walter E. Grinder. Barry’s thoughts on liberalism are also presented at some length in a review article on “The New Liberalism,” _British Journal of Political Science_, Vol. XIII, No. 1, January 1983, pp. 93–123, where he distinguishes between the “consequentialists” (The _Wertfrei_ approach of the Chicago, Austrian, and Virginia Schools) and the “rights” traditions (Rand, Nozick, and Rothbard) in modern libertarian thought. ## Locke and Property Rights Three important books on John Locke’s political philosophy have recently been republished in paperback. The first is by John Dunn, _The Political Thought of John Locke: An Historical Account of the Argument of the “Two Treatises of Government”_ (Cambridge University Press, 1982), who stresses that Locke’s theological assumptions provide the basis for his political theory. The second is by James Tully, _A Discourse on Property: John Locke and His Adversaries_ (Cambridge University Press, 1982), who places Locke’s Second Treatise in the context of the important seventeenth-century debate on natural rights, in order to ascertain precisely what aspects of Locke’s property rights theory are a unique contribution to political theory and what were the common assumptions of the age. The third contribution to Lockean political studies, Julian Franklin’s _John Locke and the Theory of Sovereignty: Mixed Monarchy and the Right of Resistance in the Political Thought of the English Revolution_ (Cambridge University Press, 1981), continues the important scholarly process of demonstrating how radical Locke really is. Franklin argues that Locke transformed the traditional theory of sovereignty (which gave the right to resist a tyrant only to certain representatives of the people) into a much more radical view in which sovereignty and, hence, the right of resistance, was granted to the people themselves rather than to any intermediate representative body. The collection of essays entitled _Theories of Property: Aristotle to the Present_ (Waterloo, Ontario: Wilfrid Laurier University Press, 1979), ed. Anthony Parel and Thomas Flanagan, has some valuable pieces that should be of interest to our readers. It includes essays on the notion of property in the work of such thinkers as John Locke (J. Tully), John Stuart Mill (John Gray), F.A. Hayek (T.E. Flanagan), and Robert Nozick (S.B. Drury). Also of note is the essay on “The Mobility of Property and the Rise of Eighteenth Century Sociology” by J.G.A. Pocock. > “For Locke, however, a distinction must be drawn between isolated acts of tyranny—or occasional abuses of executive authority that do not disrupt the law in general—and a calculated design to subvert the law and public liberty as such. . . (in the former case) where recourse to appeal is still available the use of force is always premature. . . (in the latter case) revolution is appropriate.” > > — Franklin ## Gray on Mill and Hayek The Oxford political philosopher John N. Gray has written a challenging book on John Stuart Mill’s theory of liberty, _Mill on Liberty: A Defense_ (London: Routledge and Kegan Paul, 1983). According to Gray, Mill can be interpreted as an advocate of “indirect” rather than “direct” utilitarianism. By this, Gray means that the direct promotion of happiness, sometimes at the expense of liberty, is self-defeating. Gray argues that, on the other hand, in a theory of indirect utilitarianism, “there are utilitarian reasons for according the vital interests in autonomy and security a priviledged immunity from utilitarian trade-off” (p. 128). We recommend it to those natural-rights advocates who have dismissed utilitarianism out-of-hand as an unsuitable defense of liberty. John Gray has also written an important appraisal of Hayek and his contribution to the rebirth of the classical liberal tradition— Gray —tion in this century, _Hayek on Liberty_ (New York: Basil Blackwell, 1984). In this study, which originally appeared as “F.A. Hayek and the Rebirth of Classical Liberalism,” _Literature of Liberty_, Vol. V, No. 4, Winter 1982, pp. 19–66, Gray concludes that Hayek has been able to fuse certain aspects of the rival paradigms of conservatism and libertarianism with his theory of social evolution and “voluntaristic traditionalism.” How well this marriage of conservative and libertarian values works is left for the reader to decide. This issue of _Literature of Liberty_ also contains the most comprehensive bibliography to date of writing by and on Hayek, compiled by John Cody. This fine bibliography, in expanded form, also appears in Gray’s book. > “These vital interests (autonomy and security) are to be protected before any others a man may have and they are not to be invaded or damaged simply because it seems that a greater satisfaction of overall preferences might thereby be achieved.” ## Alternative Defense The current re-thinking of the role of nuclear weapons by some senior military figures on both sides of the Atlantic has been brought about by the growing awareness that nuclear weapons are, for all intents and purposes, unusable. Four very senior ex-officials have recently confirmed this view by calling for the urgent adoption of a “no first use” policy in order to ease international tension. See McGeorge Bundy, George F. Kennan, Robert S. McNamara, Gerard Smith, “Nuclear Weapons and the Atlantic Alliance,” _Foreign Affairs_, Spring 1982, Vol. LX, No. 4, pp. 753–68, and the debate that followed in ibid., Vol. LX, No. 5, especially the comment by Earl C. Ravenal, pp. 1174–76. ## Nuclear Winter > “In any large-scale nuclear exchange between the superpowers, global environmental changes sufficient to cause the extinction of a major fraction of the plant and animal species on the Earth are likely. In that event, the possibility of the extinction of _homo sapiens_ cannot be excluded.” A view is beginning to emerge that considers any use of nuclear weapons, in the words of Andrei Sakharov, “the collective suicide of mankind.” See Sakharov’s open letter, “The Dangers of Thermonuclear War: An Open Letter to Dr. Sidney Drell,” _Foreign Affairs_, Summer 1983, Vol. LXI, No. 5, pp. 1001–16. According to this interpretation the use of nuclear weapons is viewed as suicidal, for two reasons. First of all, on a purely tactical level, in densely populated areas such as western Europe it is impossible to use nuclear weapons to defend life and property without destroying that which one is supposed to be defending. Far more importantly, on a global level, there is also the likelihood that the detonation of several hundred nuclear warheads would bring on a devastating “nuclear winter.” See R.P. Turco, O.B. Toon, T.P. Ackerman, J.B. Pollack, and Carl Sagan, “Nuclear Winter: Global Consequences of Multiple Nuclear Explosions,” _Science_, 23 December 1983, Vol. CCXXII, No. 4630, pp. 1283–92; Paul Ehrlich, et al., “The Long-Term Biological Consequences of Nuclear War,” ibid., pp. 1283–1300; Carl Sagan, “Nuclear War and Climatic Catastrophe: Some Policy Implications,” _Foreign Affairs_, Winter 1983–84, Vol. LXII, No. 2, pp. 257–92; Anne Ehrlich, “Nuclear Winter,” _Special Supplement, Bulletin of the Atomic Scientists_, April 1984, Vol. XL, No. 4; and the collection of essays in _Nuclear War: The Aftermath: A Special AMBIO Publication_ (New York: Pergamon Press, 1983). The second reason for becoming disillusioned with the idea of nuclear “defense” is tied up with the broader disillusionment of being involved in a conflict between two military blocs. _Defense without the Bomb: The Report of the Alternative Defense Commission_ (New York: International Publications Service, Taylor and Francis Inc., 1983) suggests a range of options for European countries to insure adequate defense without recourse to nuclear weapons or dependence on nuclear allies. _David Hart, the editor of the Humane Studies Review, has studied history and political philosophy at Macquarie University in Sydney, Australia; the Johannes Gutenberg Universitat in Mainz, West Germany; and Stanford University in California. He is currently working on a PhD in French Liberal thought at King’s College, Cambridge._