Positive Liberty

Liberty Fund Conferences aren’t like scholarly meetings where people present papers or anything like that; it’s all just a free conversation about the material. So I can’t report that this person argues this or that person argues that. So far I’ve taken on the role of nay-sayer, complaining about several things in Law Legislation and Liberty that render Hayek’s argument unhelpful. During the break I made a quick list of things I don’t like about Hayek.

1. The difference between spontaneous order and constructive rationalism is not what Hayek claims.

Much of Hayek’s argument is that we should grow institutions from the bottom up rather than imposing them from the top down according to some preconceived notion of how institutions ought to work. I have no objection to this claim, and indeed I think it is often right. But push it a little, and it turns out not to be very helpful. Hayek admits that the outcome of a spontaneous order can often be unjust, and that people should intervene at such points and fix the order. By doing what? Why, imposing an idea that they’ve devised through constructive rationalism. Take the common law. Hayekians might really praise the common law for its spontaneity, and indeed I do too, but the common law devised many institutions, like coverture, which are positively awful, and which required intervention by legislatures to change. Now, if we’re going to compare the outcome of a spontaneous order with some standard of hypothetical rightness or justice, and then fix the order so as to conform more fully with that standard, then what are we if not constructive rationalists? Maybe we’re really well educated constructive rationalists, but just the same. Hayek seems to admit all of this, but if he does, then I don’t see how his observation isn’t just trivial.

Take his observations on the role of judges in chapter 5 of book 1, one of his weakest chapters. In the end, Hayek is arguing that a judge ought to go along with the standard social practices of his time and age—unless, that is, he finds that he cannot. Then, Hayek says, the judge can change the rules to fit the judge’s views of justice—so long as the judge can articulate the new rule in terms that are generally accepted, so that the new rule will be accepted by everybody. Well, by these standards, anything a judge does in a case will be acceptable. If the judge declares that slavery is unconstitutional under the constitution’s declaration that all men are created equal (as happened in the Massachusetts Supreme Judicial Court), then is he disrupting the social order? Sure, but Hayek’s still on the judge’s side because the judge appeals to terms that are generally accepted. Does the judge instead decide to retain slavery? Then Hayek is still on his side because he’s not overthrowing institutions that have gained longstanding acceptance in society. Hayek’s prescriptions are elastic enough to justify anything the court does except the most arbitrary decisions. And even those will give rise to spontaneous orders eventually. So Hayek tells us nothing, really.

2. His advocacy of the welfare state

Everyone here is bothered by this. Hayek seems to think that the welfare state is somehow not coercive redistribution of wealth. I believe, however, that the reason for this confusion is because of Hayek’s shyness with regard to pure political philosophical considerations with regard to justice. His definition of justice seems to be terribly vague. In addition, his desire to retain long-standing traditions, I think, is partly responsible—since, of course, some form of welfare state has been around for a very long time. I don’t think that his endorsement of it is just a bizarre, inconsistent tic. I think it’s entirely predictable given his confused premises.

3. Is generality meaningful?

One of the bases of the rule of law is that laws must be general—they must apply similarly to all like cases. That’s a great rule, and I like it a lot, but as Anthony de Jasay shows in Justice And Its Surroundings, its actually quite meaningless, because if we are going to determine what cases are alike, then we are already rigging the game at the outset. Everyone agrees to treat like cases alike, but at what point do we decide that a case is like case A, or like case B? Once we make that decision—which will depend on our political predispositions—we’ve pretty much answered the final question.

4. Drawing the circle

Another problem I have with Hayek’s discussion of spontaneous order is that it is possible to find a spontaneous order anywhere so long as we draw the circle wide enough. Take, for instance, the Shaker community. Were they a spontaneous order? No—they were consciously created to serve a predesigned list of rules: no private property, no sex, and so forth. Yet Hayek loves social experimentation, and in The Constitution of Liberty says that this sort of community experimentation is necessary for social advancement. So if we stand back and look and the whole 19th century American society, the Shakers were but one institution in the whole spontaneous order. Just as Bette Midler’s God is “watching us from a distance,” so Hayek finds a spontaneous order wherever he wants to by just sitting back a little. Take the common law judges. None of them thought that they were serving the spontaneous order of the common law (and what difference would it have made if they had?)—they were trying to solve a particular case by particular standards, and construct a rational account for that decision. Yet Hayek takes the perspective of the law as a whole and finds a spontaneous order, which renders his observation, again, trivial.

5. Metanorms and the right of exit.

In Constitution of Liberty, Hayek says that if society allows these different groups to experiment, we’ll all discover new rules that we can implement and improve society. Sure, that’s great, but only if people have a right to exit those subsocieties. What do you do if a subsociety decides that it doesn’t like experimentation and it doesn’t like to let its people out? The overall society must have some ability to enforce that right of exit, and to do so it must be able to appeal to an overarching political norm. Where does Hayek get his overarching norms? He suggests that they have to be “immanent,” or come from within the system. But I think that it’s appropriate to look outside of the particular system—again, it depends on how widely we draw the circle—for the values of that system. What gives validity to the American Constitution are values which we can find in the Declaration of Independence.

This is a brief list, since I’ve got to run to the next session.

Trackback URI |