Sunday, July 09, 2006

draft of essay on Hayek

Contemporary political discourse frowns upon accusing someone of having too moderate views. Extremism, it is thought, is always wrong. This is partly true – because extremism usually means taking a wrong view to its logical conclusion, extremists are often much more horrendously awful than their more moderate counterparts. But the fundamental error of such extremists is that they are wrong, not tha they are extreme. If Frost had not chosen “the path less traveled by,” he would have made a mistake no matter how far he traveled along his incorrect path. Indeed, if one sets off on a correct track towards the truth, the moderation of stopping halfway is a drawback, not an advantage. If an author’s moderation is of this type, it becomes necessary to point out the weaknesses in their argument – not as a blind call to dogma but instead as a plea for consistency.

Such a plea becomes even more necessary when confronted with a work as ambitious as Friedrich von Hayek’s Constitution of Liberty. Hayek in fact states that he “is not chiefly concerned with the problems of any particular country or of a particular moment but, at least in [the book’s] earlier parts, with principles that claim universal validity...[The book is] an attempt at restating a philosophy of men’s living together which has slowly developed through more than two thousand years.”[1] His aim is to guard a personal sphere of liberty for each individual. Under Hayek’s system, all laws must be derived from general rules, with universality the main criterion for a rule’s validity. These laws would not be enforced by administrators, but instead pu into force by judges without discretionary powers, that apply rather than make the law. This, Hayek believes, would safeguard individuals from the exercise of arbitrary power. If all rules “must apply to those who lay them down and those who apply them – to the government as well as the governed – and nobody has the power to grant exceptions,” if “even authority has no special powers except that of enforcing the law,” then “little that anyone may reasonably wish to do is likely to be prohibited.”[2] But as I explain in this essay, Hayek largely neglects the fact that while these conditions may be necessary for a system of “freedom under the law,” they are not sufficient. I shall begin by further explaining Hayek’s position.

What Hayek is mostly concerned about is establishing the rule of law, where “men are ruled by laws and not by men.” Hayek’s conception of society is that of a self-generating order, and the function of the rule of law, as he sees it, is “not to set up a particular order but merely to create conditions under which an orderly arrangement can establish and renew itself.”[3] He spends the middle third of his book elaborating on the effects of such a policy, its status as an ideal governing legislation, and what sort of a government is best suited to uphold it. According to Hayek, “protection against unpredictable interference...is the essential condition of individual freedom, and to secure it is the main function of law.”[4] He then explains how, to serve this end, British and American thinkers developed concepts like judicial review, separation of powers, and constitutionalism that limited administrative discretion and promoted equality under the law.

Perhaps his most enlightening discussion, however, is of the turn-of-the-20th-century attacks on these principles upholding a rule of law. Hayek explains how many socialists were unhappy with the largely laissez-faire policies resulting from equality under the law, and argued that “government should enforce not merely ‘formal’ but ‘distributive’ or ‘social’ justice.”[5] They were helped in their quest by the legal positivists, who sought to reshape the legal code according to their philosophy that “law by definition consists exclusively of deliberate commands of a human will.”[6] Logically then, law should be explicitly molded to enhance powers of administrative discretion, instead of blindly following the will of past generations masked under outdated conceptions like ‘the rule of law’. Hayek argues that this new philosophy stood in stark contrast to natural-law-based theories, which

agree that all positive law derives its validity from some rules that have not been made by men but which can be ‘found’....Whether they seek the answer in divine inspiration or in the inherent powers of human reason or in non-rational principles that govern the working of he human intellect, whether they conceive of the natural law as immutable or as variable, they all seek to answer a question which positivism does not recognize.[7]

Having laid out the battleground, Hayek places his flag firmly on the side of natural law. Then, he says that he has “so far deliberately avoided discussing our problems with reference to this conception:, because the numerous schools which go under this name hold really different theories and an attempt to sort them out would require a separate book.[8]” He then refers the reader to d’Entreves’ Natural Law and more or less leaves it at that. But in doing so, he ignores that,while supporting some sort of natural law may be necessary for the preservation of liberty, it is not sufficient.

This insufficient distinction primarily manifests itself when Hayek points out the crucial distinction between natural law-based legal philosophies and legal positivism.[9] He fails to note that many, perhaps most, believers in natural law are not primarily concerned with liberty and a personal sphere, as he is. Though it is impossible for liberty to be consistently advocated by someone who believes that “a wrong of the State must under all circumstances be a contradiction in terms,”[10] this does not automatically vindicate those who believe in justice distinct from State decrees. Many groups have concepts of justice that do not serve Hayek’s goal of protecting the individual’s personal sphere. And worse, some such concepts are compatible with the system of rules that Hayek advocates. Were groups advocating such concepts to gain power, Hayek’s system, his means to achieve liberty, would contrary to purpose further tyranny.

Let us take a concrete example. Consider universally-enforced prohibitions of consensual actvities, like drug laws or religiously-inspired laws against things like homosexuality and premarital sex. Hayek acknowledges, immediately after saying that universally applicable rules are a chief safeguard of liberty, that “it is possible that a fanatical religious group will impose on the rest restrictions which its members will be pleased to observe but which will be obstacles for others in the pursuit of important aims.”[11] But he discounts this possibility, saying that “most restrictions on what we regard as private affairs....as in the case of prohibition, were practicable only because only because the government reserved the right to grant exceptions.” [12] Now, I’m not a scholar of the Prohibition era, but something here doesn’t strike me as right. Universal enforcement of massively broad and restrictive laws like Prohibition may well be impractical. But this is not in and of itself an argument against Prohibition, any more than the impracticality of universally enforcing murder laws when the Mafia controls the police is in and of itself an argument against murder laws. If a specific law is not universally enforceable, there are two ways to alter the status quo in order to enhance equality under the law. The first is to abolish the law. The second is to add enough policing power to make the law enforceable. Hayek’s problem is hthat when the first avenue is preferable, as in the case of Prohibition, his philosophy of “universal rules applicable to all” is neutral between the two options. Equality under the law may mean either equality in slavery or equality in freedom. Hayek’s rules are equally tolerant of each possibility; nor could he consistently set forth any criterion like ‘universal rules must be non-coercive,’ since he is willing to use coercive measures like taxation.[13]

To reiterate, the danger is that a group which believes in some form of natural rights – a group that is in favor of equality under the law – will enforce equality in slavery through laws like Prohibition.[14] And it is hard for Hayek to argue against such laws when, while generally discussing governmental threats of coercion, he says that

provided that I know beforehand that if I place myself in a particular position, I shall be coerced and provided I can avoid putting myself in such a position, I need never be coerced. At least insofar as the rules providing for coercion are not aimed at me personally but are so framed as to apply equally to all people in similar circumstances, they are no different from any of the natural obstacles that affect my plans. In that they tell me what will happen if I do this or that, the laws of the state have the same significance to me as the laws of nature.[15]

In other words, according to Hayek being sent to jail for consuming a large amount of alcohol is practically the same as getting a hangover as the result of doing so. He is conflating State actions with natural laws conditional only on the former’s universality, a gigantic loophole enabling highly antilibertarian groups to operate as Trojan horses inside a Hayekian framework. For example, if the leaders of the Islamic Republic of Iran, who believe that alcohol is a tool of the devil and should be prohibited, systematize their persecution of consumers of alcohol, they would satisfy Hayek’s universality requirement. Hayek, in showing the fundamental opposition between natural law and legal positivism, between universally applicable laws and discretionary administrative power, omits to mention that many of those who may be on his side during these battles are still no friends of liberty.

This problem, seen in Hayek’s discussion of the abstract principles governing law, pervade as well his treatment of particular examples of law. His discussion of the Constitution concludes only with the statement it has helped to “establish that the legislature is bound by general rules; that it must deal with particular problems in such a manner that the underlying principle can also be applied in other cases.” Hayek adds that this state of affairs is one in which “it becomes impossible for government to undertake certain tasks,” making it “not compatible with every kind of economic order.”[16] Perhaps it is pertinent to ask: what certain tasks? Which kinds of economic order? The reader may be supposed to infer that Hayek means systems that promote coercion; he certainly never specifies. As in his position on natural rights, he is here attempting to set forth a principle that separates philosophies that promote liberty from those that stifle it, but refuses to draw the distinguishing lines sharply enough. Earlier in the book, Hayek admitted that liberty “is an ideal that will not be preserved unless it is itself accepted as an overriding principle governing all legislation.”[17] But he almost entirely glides over the Ninth Amendment, and misses an excellent opportunity to do so.

In a book of legal history Hayek could have been excused for this. After all, the Ninth Amendment is known as the “Forgotten Amendment” for a reason. But doing so in a book entitled The Constitution of Liberty is rather curious. Certainly, an amendment which declares that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” could be powerful in forcing government to respect the private sphere of the individual. Hayek notes that its decline was a result to a large degree with the rise of concepts of popular sovereignty, and vaguely laments its passing for that reason.[18] But he seems to shy away from explicitly endorsing the libertarian proviso of the Ninth Amendment in favor of a blandly vague advocacy of ‘general rules.’

The watered-down nature of Hayek’s message is perhaps most evident when he resorts to an odd argumentative tactic. At one point, he admits that his system is still conducive to highly unlibertarian policies. But he does not argue that his system is, even in light of its drawbacks, the best way to defend liberty and the greater good; instead, he advances the rather obvious proposition that it protects freedom better than collectivist systems:

If a period of military service is a foreseeable part of my career, then I can follow a general plan of my own making and am as independent as men have learned to be in society. Though compulsory military service, while it lasts, undoubtedly involves severe coercion, and though a lifelong military conscript could not said ever to be free, a predictably limited period of military service certainly restricts the possibility of shaping one’s own life less than would, for instance, a constant threat of arrested resorted to by an arbitrary power to ensure what it regards as good behavior.[19]

Hayek is of course correct that predictable coercive power is more conducive to personal planning than arbitrary power. But he gives short shrift to the larger point that universal military service is still highly antilibertarian, quickly proceeding to why it is not as bad as a possible collectivist arrangement. This is hardly a ringing endorsement of his system, and suggests that Hayek is trying to avoid admitting the degree to which his system can foster tyranny. Given that the draft is indeed a grave violation of liberty, one would have expected at least a discussion of why his system is still a good way to defend liberty – perhaps such problems are endemic under any government. Instead, Hayek says nothing.

Furthermore, this excessive justification leads Hayek to a recurrent theme: insufficiently questioning the necessity of governmental activity permitted under his system. For example, he says that the “most disturbing” form of governmental coercion are programs like mandatory jury duty that are “neither avoidable nor predictable.” Hayek thinks harms from this coercion can be minimized: if “the decision as to who must serve is made to rest on processes like the drawing of lots” then “these unpredictable acts of coercion affect out lives as do other ‘acts of God,’ but do not subject us to the arbitrary will of another person.” But he still holds that “such coercion is necessary even in a free society.”[20] Now, I don’t know whether, if mandatory jury duty was abolished, other institutions would evolve to serve its role. Maybe some will. Maybe not. But certainly, he could have spent at least a sentence or two explaining his position. As Hayek accepts the necessity of mandatory jury duty, he accepts universal military service without asking if such an arrangement is either necessary or inevitable.

These unquestioning concessions may be of minor import alone, but as I have tried to show, they are representative of Hayek’s larger tendencies to underestimate the amount of coercion that would still be legitimate under his system, and to not consider the viability of alternative systems to protect liberty. Much of this stems from lack of clarification: Hayek spends most of his time arguing that government governed by general rules is better than unlimited government, but neglects to elaborate on what the ideal general rules are. He emphasizes the importance of natural law without ever saying what theories of natural law protect liberty the most. But for what purpose? Perhaps he does not want to alienate possible supporters; maybe he is so caught up in the importance of general principles that he neglects the content of those principles. There could be some other reason entirely. But the end result of this lack of specificity is that Hayek almost entirely ignores problems like rule by religious fanatics, drug wars and Prohibition. He fails to see that by focusing almost exclusively on the perils of the state having arbitrary power, he neglects the dangers that result from any power the state holds. If extremism in the defense of liberty is no vice, than surely unambiguity isn’t too much to ask.


[1] p. 4-7

[2] p. 155

[3] p. 161

[4] p. 161.

[5] p. 234-5

[6] p. 237

[7] p. 237

[8] p. 236

[9] Daniel B. Klein theorized that this lack of clarification is deliberate: “Drenched in sunlight, Hayek would have been dismissed and ignored. To speculate, we might imagine that Hayek’s meta-conscious faced a trade-off between obscurantism and obscurity.” “Mere Libertarianism: Blending Hayek and Rothbard,” Reason Papers

[10] From leading legal positivist Hans Kelsen, quoted by Hayek on p. 494, n. 15.

[11] p. 155

[12] p. 155. Hayek also seems to be downplaying something that he noted in The Road to Serfdom, namely that “The chance of imposing a totalitarian regime on a whole people depends on the leader’s first collecting round him a group which is prepared voluntarily to submit to that totalitarian discipline which they are to impose by force on the rest,” (emphasis mine), p. 151. While, as he noted, the Rule of Law and a lack of administrative discretion is incompatible with totalitarianism, the fact that adherents to totalitarian movements accepted their discipline and then imposed it on everyone else surely bodes ill for the prospects that the same cannot happen with other groups.

[13] Hayek defines coercion as “such control of the environment or circumstances of a person by another that, in order to avoid greater evil, he is forced to act not according to a coherent plan of his own but to serve the ends of another.”

[14] Religious groups are the most likely candidates here, considering they often see their version of divine laws as universally applicable and stemming from some aspect of man’s nature as created by God. But it is quite possible that such a group will only be vaguely religiously-inspired, as in the case of drug laws.

[15] p. 142.

[16] p. 192

[17] p. 68

[18] The resurrection of the Ninth Amendment was effected to some extent in 1965, five years after the publishing of The Constitution of Liberty, with the Supreme Court’s decision in Grisworld v. Connecticut. Unfortunately, while the decision cited the Founders' belief idea that “there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments,” as Justice Goldberg put it in his concurring opinion, Goldberg also wrote that he could find only three previous Supreme Court decisions that referred to the Ninth Amendment. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=381&invol=479)

[19] p. 143. In fairness to Hayek, we must remember this was written in 1960, before Vietnam.

[20] p. 143

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