Both the United States (1787) and Mexico (1824, 1857, 1917) drew more heavily on Locke and Montesquieu than Hobbes in their creation of liberal constitutions. As a result, both created systems whereby the equality of humanity was established and where people were considered participants working together to protect each other rather than miscreant children in need of a good ear-boxing by an all-powerful state. Explicit in these systems is the rule of law – the equal application of the law to all parties, regardless of political power, sex, religion, geographic location, or economic status.
However, as Greg Grandin masterfully points out in his heart-breaking Empire’s Workshop, Hobbes is the new vogue among the pseudo-free market set and, I might add, the rule of law is a pretext for Leviathan to pound the populace into submission. While I accept the sincerity of Milton Friedman’s vision that man’s greed can be harnessed in some ways to drive them to create a better society as well as his emphasis on freedom, I object to the death of Montesquieu as a result. I also object to the application of Locke to the wealthy (they are good, kind, social beings that need freedom of choice) with the simultaneous application of Hobbes to the poor (the really are too stupid to make their own choices and must be beaten into submission). While that transition in the United States has been gradual over a long period of time, Mexico shows us well how this transition has played out over a short period of time.
Mexico’s decidedly Roman-style legal system allows a great deal of flexibility in the power of the judge to make decisions based on the situation rather than on a flat application of the law. While this might not be the legal Utopia of the rule of law, it is an interesting nod to the concept of mercy tempering justice, and at the end of the day has the potential for creating a humane legal system. Law exists to protect, not to “send a message” or intimidate. In Mexico, the general repercussion of this has been the creation of a society that focuses on the humane interaction between vecinos (in the non-legal sense) and the realistic view of the law where the rich and poor alike have access to legal flexibility. Not all crimes may be solved, but society existed with less anxiety, and contributes to those lovely indexes of Mexican happiness versus US happiness. Add to that a state that recognizes the legal right of corporate bodies (particularly in labor and religion) to organize, and you have a system that allows the individual to find the protection of their equality as Montesquieu envisioned. What about bribery? I would echo the thoughts of others that rightly point out that bribery, greasing the wheels of the local level to the highest perches of governance, is also something of an equalizer. In the United States, where only the rich can legally play the bribery game, the poor are at a decided disadvantage.
Starting with the technocrats of the 80s and running through the PANistas of today, Mexico has sought to follow the advice of economists and business owners to improve the rule of law to increase investment in the country. This is an attractive idea with the potential to protect the rights of all – if that is what it really meant. Unfortunately, what is passing as the application of the rule of law is really a philosophical change in the concept of governing Mexico. Starting with Salinas de Gortari, the flexibility surrounding the 1917 Constitution was eliminated – at least for the poor – and the Mexican state became not the guarantor of rights for all, but the Hobbesian enforcer, working to guarantee rights – for corporations. While American and Mexican businesses are considered rational and thinking entities capable of making their own choice and, therefore, legitimate in their shaping of society, Mexican citizens are considered irrational in their choice to regulate the actions of corporations and the effect those companies have on their lives (consider the assaults on those that cry for protection of water quality in maquila zones). They are also increasingly denied the ability to effectively organize to protect their interests (see the example of workers in maquilas), while corporations are certainly not denied that ability (see the Salinas mining interests in northern Mexico). When presented in an interview for the documentary One Percent with the data on poverty and the problems people face as the wealthier grow wealthier, Milton Friedman said “you have to break a few eggs to make an omelet.”
I agree with Milton Friedman that choice is important. I agree with Milton Friedman when he said that the wealthy grow wealthy because they do offer something for the population that the public wants. What I disagree with is the protection of that offering at the expense of other goods and services, such as a real protection from crime, equal access to the mechanisms of capitalism that allow for a measure of upward mobility (such as quality education or equal protection of private property), and equal access to the freedoms of political participation. If breaking eggs to make omelets is an acceptable practice, then those in power should be prepared to find that one day the majority is going to order a different style of omelet. Hopefully, in the Mexico of the upcoming elections in 2012, Mexicans will have the huevos to return to a state that protects the rights of all, demilitarizes the society, and makes the United States pay for their own drug “war.”