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March 02, 2018

Comments

Mr Charlie

Not directly linked to Brexit but to the more general point of contracts, there is an interesting paper from Lisa Bernstein on the non-use of contracts in the international diamond trade (https://www.jstor.org/stable/724403?seq=1#page_scan_tab_contents)
The conclusion being in certain industries trust and culture matter more than formal contract mechanisms (that are often ineffectual).

Crispin Wright has a philosophical defence of vagueness:
"a language stripped of vague expressions would suffer not merely in point of usefulness—often, a vague judgement is exactly what we need— but in its very expressive power"
(http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.574.9903&rep=rep1&type=pdf)

Luke

A related question is when unwritten rules stop working/being adhered to. Think of sports where certain things are “just not done” - until someone does do them, and then a formal rule is made or people decide it is OK after all. Eg bowling bouncers at tailenders used to be taboo, now acceptable. I’m sure the likes of Stanley Matthews would never have wasted time with endless backpasses, but football eventually had to change the laws to stop that.

I’m guessing that the wider range of people involved, the more unwritten rules stop working.

e

I disagree entirely. Yes the British have long since been keen on vagueness – on informal understandings. Living breathing flexibility. All tied up with our unwritten constitution and our reliance on convention and precedent. Nonetheless, the idea the UK state – its institutions – don't look to law; don't arbitrarily rely on law as a backstop (regardless of what 'understanding' it has promoted) is for the birds. Perfidious Albion, its citizens 'foreigners'... hmm. The EU's not keen, there's a surprise.

From Arse To Elbow

It's an interesting contrast, but I think you're trying a little too hard in describing the Brexiteer position as vague or even implicitly pragmatic. People who are in favour of respecting ground truth and muddling through don't tend to insist on red lines.

Indeed, I'd go further and suggest that the EU's formality and legalism has always been partly a fiction used to accommodate ambiguity and flexibility. It couldn't really be otherwise, given that the union is a self-herding group of cats.

Blissex

As to DA Green:

«The EU produces papers and drafts. The UK produces newspaper articles and speeches. The EU is using process, the UK is using publicity. This is why the EU has the advantage in the Brexit negotiations.»

There is an obvious alternative interpretation: the kipper government is not much interested in negotiating with the EU, but they are very interested in negotiating with the voters for more votes in 2022. Our kipper government therefore they are dealing with exit as if they were campaigning, most obviously in the case of B Johnson.

Because exit is very much an electoral issues in England, but it is not in any EU27 country.

Many members of the kipper government are very keenly aware that there may be two elections soon: a new Conservative leadership election, which may be decided by members who are almost all on the extreme far-right (see G Williamson), and either a new snap election or the 2022 elections, which they will turn into a contest of jingoism.

Most Conservative members and even some government members are probably sincere in reckoning that exit in itself is no big deal, and vote-catching is far more important.

Therefore the difference may have nothing to do with a "contract" view of relationships and a "tacit understanding" based one.

Blissex

«They therefore supply goodwill. But this requires reciprocation in the form of employers respecting pension rights and not being heavy-handed. Lecturers must transmit to their students not just knowledge but an enthusiasm for their subject. They cannot do this if everybody is sticking to the letter of contracts and if they feel oppressed and ripped-off.»

Sometimes I feel astonished by what seems to me the oxonian/parliamentary convention adopted by our author to assume everything is done for the noblest motive and outside any political context.

As to universities and pensions, it is all about cutting the cost of labour so the government can cut university funding more, and very well paid VCs know perfectly well which side their toast is buttered on.

Plus as far as most governments are concerned most universities are diploma mills and parking areas to keep "bulk headcounts" out of the unemployment statistics, so they could not care less about "enthusiasm for their subject". Not a new concept, this is how "Doonesbury" represented the teaching job market in the USA in 1996:

http://images.UComics.com/comics/db/1996/db960909.gif
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Keith

Blissex is correct. Brexit has always been about politics not economics. It is a crazy scheme by right wing cranks,( aided by some left wing cranks) which makes no sense. A rejection of economic and geopolitical rationality which has been mainstream since Harold Wilson was persuaded to back EEC membership in the late sixties and early seventies. "The UK has lost an empire but not yet found a role." Then the Uk found a role and now has thrown it away on xenophobic stupidity encouraged by class interests of a small economic elite. The EU cannot deal with the UK as it cannot understand the mindset of people so divorced from reality. Legal treaties and rules embody the specifics of a rational worldview begun in the aftermath of the disastrous outbreak of barbarism between 1913 and 1945. The preference in the UK for windy rhetoric and childish posturing over reason speaks to the decline of political thinking and seriousness since 2010.

Dennis Smith

There are good reasons for thinking that vagueness is a feature, not a bug, and that some things cannot be expressed formally (look at Gödel’s theorems for a start). Equally, not everything can be done by laws. As Wittgenstein argued, if you have to have rules for applying rules you are on the slippery slope into an infinite regress: at some point rules must be grounded in practices, actions or decisions which are not themselves rules. (Not at this point, anyway, though they may be converted into rules at some future date.) The rule of law requires a constant interplay between laws and administrative decisions implementing those laws.

From this perspective the “culture clash” between the EU and Brexiters looks like a false opposition. Both parties occupy different points (for the moment) on a single spectrum. In general, disputes may be settled by resort to an external law-giver or by informal negotiation. The problem is that informal negotiation relies on the existence of public goods like goodwill and mutual trust which may be in short supply. And in this case there is no external law-giver to fall back on: this is where the whole controversy about sovereignty kicks in.

Blissex

«And in this case there is no external law-giver to fall back on: this is where the whole controversy about sovereignty kicks in.»

You are trying too hard, like our blogger, to fit the "explicit laws"/"tacit culture" duality onto the "EU"/"Leave" story, because there is no such fit as to "sovereignty": the sovereignty that matters is not that of the Bristol local council, of the scottish devolved administration, of the UK, or of the EU: it is that of the people, "because democracy".

As to that the people of Bristol and Scotland are represented at the local council level, at the devolved administration level, at the UK level, at the EU, in an impeccably democratic and fair way. The people of the UK have fair representation with the same rules as those of every other member country, just like the people of Bristol have fair representation with the same rules as those of any other region of the UK.

The argument that a certain faction of "Leavers" make as to sovereignty therefore always seemed absurd to me however heartfelt it was: after all the English Empire and the English Union (aka the UK) have always been multinational, multiethnic, multilanguage, with several levels of representation, just like the EU is (in somewhat diluted form as it is fairly embryonic).

Except for a big difference which I now think is the root of the "sovereignty" argument: that in the English Empire in the past and in the English Union today the southern/London english upper-middle and upper class elites are "TOP DOG", "sovereign", but they are just one of the larger lobbies in the EU just "big dog", but they don't dominate it, so they are not collectively "sovereign".

I think that explains why largely "Leave" is an english nationalist issue, at least for right-wing "Leavers".

A large chunk of the english elites have no objections to "pooled sovereignty" as for example in the English Empire and the English Union, but only when they are in control of that "pooled sovereignty".

That is a *political* issue, of which faction/elite/class/... gains paramount power, not one of primacy of formal laws or of tacit culture.

Blissex

«Brexit has always been about politics not economics. It is a crazy scheme by right wing cranks,( aided by some left wing cranks) which makes no sense.»

I reject this description, it is a "Remain" crank type of claim, it is ridiculously hyperbolic, it is just "Project Fear".

I think "Leave" is a big mistake, but not a fatal one, just an expensive one, as there are countries outside the EU that sort of are doing OK too.

I also reckon that there are some reasonable arguments for being outside the EU, even if I disagree with them.

It is sad however that so many "Leavers" instead of making the better cases for exiting the EU are indeed making delusional hyperbolic cases, like the crank "Remainers" predict unlikely catastrophes.

The best example I have found of delusional hyperbolic "Leave" case is from N Tebbit on "The Telegraph", one of my favourite quotes, which is a classic:

“It is time that the Brexit campaign seized its chance and set the scene for the debate: it's time for the British to get off our knees. .... Our record of successful self government, democracy and the rule of law is far, far superior to that of the other Member states of the EU. Time and time again, we have rescued the people of the continent from the follies of their leaders. They have never rescued us. ... Freedom beckons. Will a generation of politicians who have never fought for it betray the many thousands who died for it?”

Other "Remainers" should try to "feel" the power of that unexplained “get off our knees”, which on the face of it seems quite insane to me, but conveys a profound feeling that cannot be disregarded.

Dipper

The EU (and others) have extensive regulations on toasters. The UK law is "goods shall be fit for purpose". So the arguments in the UK come after the law is formed to determine whether the toaster is fit for purpose or not, whereas in Europe the arguments come before the law is formed.

Brexiters are deliberately vague as they are laying the basis for a negotiated relationship. Europe does not understand negotiated relationships.

Metatone

Surely the point is that the EU doesn't appear to think that "a little smuggling" is a small matter. (For obvious reasons: e.g. food standards etc.)

Now they may be wrong about that - but it's not about a resistance to vagueness, it's based on a judgement about the severity of likely impacts.

Indeed, we'd be more likely to get a deal (vague or not) if we could come up with a proposal that looked reasonably likely to solve our problems without just making lots of problems for them...

Blissex

«without just making lots of problems for them.»

I am not sure this is compatible with the point of view of many "Leavers": why should a nuclear armed, sovereign and independent England that wants to “get off our knees” care about whether what England does makes lots of problems for "them"?
England never needed to care about that with New England, or Rhodesia, or Ceylon, etc. As H Belloc wrote, "Whatever happens we have got / the Maxim gun and they have not." :-)

joe

As far as contracts go descriptive clauses of how each thing is to be done are very old fashioned and if the instructions are wrong the output is wrong. The modern contracts tend to performance - "I do not care how you produce what I want but I want it to do this and that for so many years without breaking down". That is very unambiguous and short.

If someone actually set down what performance is required (not how) from a border with N Ireland then perhaps some (how) solutions could be found. At the moment no one has any idea of what performance is required - is it to control guns, drugs, criminals, terrorists, international or local smugglers, tariffs, standards, illegal migrants - who knows? The Brexiteers actually have stated they do want to take back control of UK's borders. That is very explicit.

UK law is much the same as performance contracts. For example, health and safety "risks to personnel should be as low as practicably possible". They do not necessarily say how that safeness is to be achieved.

EU regulation is very high quality in that it starts with a precise need; carries out full risk and cost benefit analysis; consults widely with the hugely diverse views from all Member States, bodies, individuals and overseas; it is refined over several years before publication. It is often performance based rather than descriptive.

UK regulation is supposed to be evidence based but is often knee jerk reactions pushed by the party in power, inconvenient consultation points are ignored, the debating chamber is near empty, MPs have no clue as to what they are voting on, and the briefing papers remain unopened. the Committees and Lords patch up the dog's breakfast. Grenfell fire "regulations" are one tragic bad example.

Ministers take the same attitudes to Brussels, when they can be bothered to turn up, then complain that things seem to be going on without them. Their total unpreparedness for the UK-EU negotiations is just the normal, shambolic way they always do things.

Blissex

«As far as contracts go descriptive clauses of how each thing is to be done are very old fashioned and if the instructions are wrong the output is wrong. The modern contracts tend to performance - "I do not care how you produce what I want but I want it to do this and that for so many years without breaking down". That is very unambiguous and short.»

For supply contracts that is very easy indeed. But we are talking about service contracts here, e.g. employment contracts and outsourcing contracts.

As to those "work to rule" as in «I do not care how you produce what I want but I want it to do this» is considered a hostile attitude, whether it is "running a hospital" or "assembling a car".

All the discussion above is ridiculously simplified and naive because "business" whether buying or selling bread or running a hospital is not based on just on formal law or just on mutual understandings, but on social relationships and conventions created within social institutions, that are merely described and given boundaries by contracts and understandings, in varying degrees.

Businesses, from sole traders to multinational conglomerates, are social institutions involving people first and foremost that grow around a legal skeleton, and interactions among businesses are also social relationships involving people, even if they grow around a legal skeleton too. In different cultures and times the relative importance of the legal skeleton and the social flesh around it change, of course.

What spivs and at the other extremes aspies try to do is to reduce certain types of business interactions to purely impersonal and abstract "trades", like buying and selling gold contracts on the LME, because that eliminates the "complications" of social relationships or they think that they can always screw their counterparties by playing "gotchas!" and writing overly clever contracts, or having rules written to their advantage.

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