The rhetoric of Bentham's critique must not prevent us from recognizing the very real difficulties that go with the implementation of individual rights limiting or modifying the binding force of legislative acts. Bentham points out uncertainties of interpretation and application that, to this day, trouble judges and law-makers. They concern the applicability of human rights in private law relations, particularly in family law and labour law; the limits of human rights where strict discipline is required as a matter of law as, for example, in the military; and finally, the balancing of legislation by majority rule and the power of courts to interfere with or declare void, specific legislation.
To take these objections seriously does not mean that they are dispositive. Experience shows that, on balance, the benefits of protecting individual rights justify its costs. One reason is foremost in this context. It is the protection of minorities and of individuals against the majority. "Even in republics", James Madison observed, "a danger to the minority arises from opportunities tempting a sacrifice of their rights to the interests real or supposed of the majority" Just as relevant is the finding that even the most conscientious and equal-handed legislator is unable to foresee the actual effects his legislation is going to have upon individual liberties. Those effects are dependent upon a great variety of present and future circumstances. Judicial review of these effects in individual cases is the only effective remedy.These observations are directly relevant for the jurisprudence of the Strasbourg institutions on human rights. The difference to individual rights recognized in the EC is one of degree only. Some of these protect personal interests similar to human rights in general...Although European law is based upon international agreements and its source is still the sovereignty of Member States, it is no longer the instrument of implementing the will of national sovereigns. In the light of these developments, Community law may be defined as a federalized and functionally limited legal system. Ernst-Joachim Mestmäcker (1994) "On the Legitimacy of European Law" The Rabel Journal of Comparative and International Private Law, 625-626 [emphasis added!--ES]
As I have said before (recall here. here, here), Quinn Slobodian's Globalists introduces a significant number of interesting and sometimes influential twentieth century neoliberal thinkers which do not ordinarily figure in the polemics surrounding neoliberalism. One of these is the Ordoliberal jurist Ernst-Joachim Mestmäcker, who was a "special adviser to the Commission of the EEC from 1960 tpo 1970." Now, it turns out I had encountered his name before, in 2005, when I was starting to research my paper on Milton Friedman and the Chicago Boys (in Chile). At the time, I wrote Bruce Caldwell -- the world's leading Hayek scholar -- for some leads.*
In his email response to me, Bruce kindly gave me some advice and offered some background. This background included the circumstances of an invitation to Hayek to Chile in order to be (now quoting from his 2015 article with Montes) "Honorary President and Council Member of the newly formed Centro de Estudios Públicos (CEP, or Center for Policy Studies)."+ CEP also hosted a conference which included some of its other foreign council members. In his 2005 email to me, Bruce wrote (and I quote with his generous permission), "The others who attended were Theodore Schultz, Armen Alchian, Ernst Mestmacker (I don't know him), and Chiaki Nishiyama." With the benefit of hindsight I am struck by Bruce's candor of ignorance about Mestmäcker and my own lack of further curiosity. As it happens I did investigate Alchian, who has (recall here and here) ended up important in my story about the displacement of Knightian uncertainty. I write this not to make fun of Caldwell. It is just to note that knowledge about the Ordos that played an important role in the Bonn republic and the development of the EU was really relatively scarce even among specialist scholars (like myself) in the English speaking world. (Much of what I know about the Ordos has been taught by Stefan Kolev.)
Okay, now let's turn to the texts. At the end of the quoted passage, Mestmäcker mentions a theme discussed throughout his writings. For Mestmäcker the original source of legitimacy of European treaties can be found in the democratic sovereignty of the member states. (This was especially so when each of the member states had a veto power.) These express a kind of general will. Now, to be sure, Mestmäcker is no fan of Rousseau's doctrine of the general will, but he recognizes that in social and historical context Rousseau's views are a kind of shared background commitment in European liberal democracies. And he recognize the significance of such commitments. But the treaties tend to be too vague (or too full of compromises) and, like all law, encounter new circumstances. So, in practice, European courts develop (much like the common law tradition) the treatises into European law on a case by case basis. Mestmäcker thinks this is a good thing. In fact, let me quote one of his most characteristic passages (from another (1972) article):
That is to say, and this echoes the preamble of the treaty of Rome ("ever closer union"), Mestmäcker sees the EU as an unfolding work in progress in which developing law functions (a) as a means of integration. It is also, simultaneously, an exemplar to other such regional integrations. Mestmäcker, too (recall), is inspired by Kant's Perpetual Peace! But this means that as law develops away from its original source democratic control and so legitimacy is reduced. That's a feature not a bug. To see why, we need to realize there is a second function of law: it is explicitly aimed at (b) "restraining economic power," that is, cartels and other rent-seeking economic elites (Mestmäcker often writes of multinational businesses and unions in this way; today he would surely include oligarchs). In so far as law does so, and becomes impartial, and -- as part of an economic constitution -- generates a kind of second order output legitimacy. This output is both economic (growth, no concentrated economic power) and legal-moral (human rights are protected in an impartial, rule-governed way).
I don't mean to suggest that democratic legitimacy cannot be renewed. In the European context, treaties end up being updated and refreshed rather regularly by the (sovereign) member states. So, there is a kind of tacit democratic and explicit ongoing legitimacy to law as developed by the European courts.
Yet, the point of (b) raised an important issue. Mestmäcker understands politics as a realm of competing interests from which one is unlikely to expect neutral legislation. He rejects both the tacit idealism about politics and its black-boxing of the earlier (recall here and here) generation of neoliberals. But it also means the treaties themselves are going to be sub-optimal from the perspective of, say, protecting minorities. I return to this below.
In the passage quoted above the post, Mestmäcker rejects the Benthamite critique of rights on empirical, even cost-benefit grounds. As it turns out, societies that protect rights may incur some costs, but also gain, in the right circumstances, many considerable benefits (moral, legal, and economics). Many human rights can also good for the economy over time.
While some readers may be made uncomfortable by Mestmäcker's pragmatic defense of rights, I want to close with a different issue. In the passage that I highlighted above ("Judicial review...is the only effective remedy"), Mestmäcker tacitly rejects a number of alternative remedies against the rent-seeking and other oppressive practices by majorities: 1) compensation of the minority by the majority; 2) moral appeals by the minority to the majority; 3) medium term effects of economic competition; 4) exit.** We may say that the first two are much beloved by democratic theorists, while the latter two are beloved by folk with sympathy for libertarianism (with an economic flavor). Mestmäcker' does not expect much from the political arena to redress wrongs it generates, but he is equally unlikely to expect the market to solve them.
So, for Mestmäcker, judges must, when they do their job, find ways to make the law more impartial and side with the vulnerable against majorities. This is a normative desideratum that Mestmäcker puts on them. The problem is not that judges may lack democratic legitimacy (although Mestmäcker does worry about it). Rather, that the judges are themselves products of particular political cultures (if not indirectly simply political appointments in disguise). This tension seems to me unresolved in his thought, and difficult to resolve.
*He was just starting to research this paper on Hayek and Pinochet he ended up publishing with my friend Leonidas Montes.
+Full disclosure: I have been a visiting scholar at CEP and have been serving on the editorial board of one of its publications, Estudio Publicos.
**I don't mean to suggest exit plays no role in his thought. Not unlike James Buchanan, Mestmäcker thinks that one of the virtues of economic federalism is to encourage movement of people to member units that have the right mixture of economic and political policies.
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