Positive Liberty

Preparing for a conference I’ll be attending in November, I’m reading Friedrich Hayek’s Law, Legislation And Liberty. I’ve never been an enthusiastic admirer of Hayek, although I think some of what he says has merit. (Many of his flaws are well documented in Anthony de Jasay’s outstanding Justice And Its Surroundings.)

Still, I thought The Constitution of Liberty was pretty good. But I have a more mixed reaction to Law, Legislation And Liberty, or at least, to the first volume, which I finished today. In it, Hayek argues against what he calls “constructivist rationalism,” which is the attitude that we can enact positive legislation and thereby change the social order of society. Hayek prefers common law to statutes, and general rules to specific ones, because they are amenable to the process of spontaneous order.

Now, I have nothing at all against spontaneous order; I think it’s a brilliant insight. And I have great admiration for the common law. But his antipathy to constructivist rationalism not only suffers from extremely poor definition, but is profoundly confused, leading to contradictory passages on different pages of his book. He repeatedly defends social institutions which are “based merely on tradition and [can] not be fully justified on rational grounds,” id. at 10, and says that “[m]any…indispensable conditions for the successful pursuit of our conscious aims are in fact the results of customs, habits, or practices which have been neither invented nor are observed with any such purpose in view.” Id. at 11. Hayek prefers Burke to Paine because trying to remake society from the ground up overlooks the importance of rules that have evolved through no directed, rational consideration. Fair enough. But what makes these rules just? Hayek seems to argue that their mere survival ensures that they are the best rules—he rigorously avoids the term “justice” in this volume (though promising more for volume 2): “such rules come to be observed because in fact they give the group in which they are practiced superior strength….” Id. at 19. But surely a rule can be both unjust and evolutionarily stable—slavery, for example, which has evolved in countless cultures and is one of the oldest human cultural institutions. Hayek does not answer this question, but goes on to deride the Paine Set, who believed that we can “construct [social] rules by deduction from explicit premises.” Id. at 21. This is constructivist rationalism, and it ought to be avoided so that society can evolve the most efficient rules. How long this will take, and how much injustice will be committed in the meantime, Hayek again does not address. Indeed, he tells us that ideology itself is inherently irrational, id. at 58, because projecting a conception of justice onto society through positive enactment is “possible only in the service of particular ends which in the last resort must be non-rational, and on which no rational argument can produce agreement.” Id. at 34.

And yet, after having rebuked those who believe in “[t]he illusion that reason alone can tell us what we ought to do, and that therefore all reasonable men ought to be able to join in the endeavour to pursue common ends as members of an organization,” id. at 32, and after deriding those who “are pleased to think that by proceeding experimentally and therefore ‘scientifically’ they will succeed in fitting together in a piecemeal fashion a desirable order,” id. at 58—he then suddenly turns into an idealist, telling us that “[a] successful defense of freedom must therefore be dogmatic and make no concessions to expediency,” id. at 61; that we must always imagine the perfect society and strive toward it, id. at 65; that “[t]he necessity of…radical changes in particular rules may…be due simply to the recognition that some past development was based on error or that it produced consequences later recognized as unjust,” id. at 89; and even that it is right and proper for us to “remov[e]…the discrimination by law which ha[s] crept in as a result of the greater influence that certain groups like landlords, employers, creditors, etc., had wielded on the formation of the law”! Id. at 141.

I ask you, what constructivist rationalist would disagree with these latter propositions, and particularly the last? Hayek seems to be saying that we shouldn’t legislate on the basis of philosophical preconceptions of justice, but should let the legal system evolve rules on a common law, case-by-case basis, because this will produce the most efficient rules—and this is desirable because societies that don’t do this will dissolve. Yet at the same time we must imagine utopia, to see rules of justice by which we can determine the legitimacy or worth of the laws that have evolved—yet we do so only on an emotional level, because it is impossible to logically prove that some law is unjust, only that it is unstable. And it’s right and proper for us to change the evolved system through positive enactments that eliminate injustices that have crept into the system due to various inequalities. This last isn’t inconsistent, he says, with his Panglossian notion that the system will evolve its own rules, because “the system of rules as a whole does not owe its structure to the design of either judges or legislatures.” Id. at 100 (emphasis added). In other words, if we look at the system from far enough away, it all balances itself out nicely. Well, I suppose that’s true, but what good does it do to look at it from that far away?

I am reminded of Bette Midler’s awful song “God is Watching Us,” in which she tells us that “From a distance we all have enough, / And no one is in need. / And there are no guns, no bombs, and no disease, / No hungry mouths to feed. / From a distance we are instruments / Marching in a common band…./ God is watching us. / God is watching us from a distance.” Well, if God is so far away that He thinks there are no hungry mouths to feed, He’s not a very useful God to have around, now is He? In the same way, it may certainly be true that “radical changes in particular rules” fit into a nice system of cultural evolution—obviously true—but how does that help us here and now?

The practical consequences of this flaw comes in Hayek’s discussion about how a free society allows different sub-societies to develop new rules which can help us move forward generally. Id. at 47. This is no-doubt true, but it can only be healthy for the overall society so long as some basic overall rules are in place that ensure the system works healthily. If the sub-societies become insular, commit positive injustices, and, particularly, refuse their members the right to exit, then some overall authority must step in or the result will be the disintegration of the society, much as we’re seeing in some European countries right now.

Some time ago I complained about the misuse of the concept of spontaneous order. The sidewalk, I said, never gets poured. Randy Barnett and Marcus Cole provided nice responses, but I see that my concerns are only exacerbated by reading Hayek himself. I certainly agree that society generates spontaneous orders and that one benefit of a free society is that it allows different groups to generate different rules, and so forth. But it allows groups to generate unjust rules, as well, and it is right for the legislature to intervene in such cases. Hayek agrees with this. But the problem is that the “constructivist rationalists” see themselves* as doing nothing other than that. Socialists merely see themselves as “remov[ing]…the discrimination by law which ha[s] crept in as a result of the greater influence that certain groups like landlords, employers, creditors, etc., had wielded on the formation of the law.” Id. at 141. If Hayek has room for this proposition in his scheme, then his scheme looks at the world “from a distance.”

I am hopeful some of these problems will be addressed in volume 2.

*-Astonishingly, Hayek at one point says John Milton was not a constructivist rationalist. Id. at 107. If Milton wasn’t a constructivist rationalist, then the term has no meaning.

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