Frank van Dun, "Hayek and Natural Law: The Humean Connection"

From Hayek, Co-Ordination, and Evolution: His Legacy in Philosophy, Politics, Economics, and the History of Ideas, edited by Jack Birner and Rudy van Zijp, London: Routledge, 1994, 269-86.

Introduction

Can Hayek’s ideas be helpful in giving new force to the philosophy of natural law? The ruling positivist conception of law is in a state of crisis and some reformulation of natural law theory may well provide a way out of the present conundrums. Because there are a number of points of contact between Hayek and the natural law tradition, and it is beyond dispute that he was acutely aware of the confusions in modern legal thought, I shall look at some aspects of Hayek’s notion of the social order and of Hume’s legal philosophy, which has been Hayek’s main source of inspiration in developing his own brand of liberalism. The final section addresses the question of the consistency of Hayek’s conception of the liberal social order.

Natural Law and Positivism

In the history of legal and political thought the idea of natural law is that laws derive their validity from their relation to reality or nature. Regardless of the many metaphysical and theological guises under which this idea has been presented, the core of natural law thinking is the conviction that laws serve a purpose and can be judged according to their fitness with respect to this purpose.

The purpose of law, according to one interpretation of the old adage ubi societas ibi ius, is to make social life possible: where there is no law (ius) there is no society. Because a functioning society is at once a precondition for the successful achievement of whatever ends human beings may be pursuing, and a fragile thing, society and therefore law is understood as something that ought to be. The point of using the word “precondition” is of course to stress that social order is not a means to human ends. It is rather the only framework within which the ideas of means, ends and of valuing are intelligible.

As I read Hayek, this core of natural law thinking is present in his works. Legal positivism, which also comes in many varieties, has consistently denied that the reason for the validity of laws is to be found in nature. The validity of laws derives instead from the authority of those who make, apply and/or enforce them.

In many accounts the opposition between the two schools of thought is reduced to the question whether law is a part of morality. However, this approach diverts attention from the core of natural law. For it is the link to nature, not some moral content, which underlies the ambition of natural law thinking to provide a critical perspective on jurisprudence and law-making.

There is no logical or other need for a natural law theorist to deny the existence of positive laws which are valid only because they are properly enacted by the proper authorities. Nor is the natural law theorist compelled to deny legal validity to a contract merely because it contains clauses of an immoral character. Natural law theory rejects the positivist doctrine on the sources of law, which makes legislation the primary and supreme source or arbiter of all law. Moreover, natural laws are said to be more fundamental than mere enactments. Outside the context of natural law, legislation is nothing but an expression of sheer political power, of might, not of right.

Hayek’s distinction between law and legislation is familiar to natural law theorists. For Hayek, as for them, most law, indeed the most important law, could not be legislated law. They also, of course, accept Hayek’s claim that law is something to be discovered, not made. They have no need to deny the existence of custom as a source of law. But, again, they would insist that custom can be a source of law only within the context of natural law.

Custom cannot be the ultimate source for the same reason legislation cannot be. Outside the context of natural law, custom is as much a question of might as is legislation. Nevertheless, a custom can be unjust or immoral and still be a source of law, if it keeps to its proper role. It may be immoral to cut off a thief’s hand, but a customary or legislated rule imposing this punishment would still be a law if it served the purposes of natural law, however imperfectly. Natural law thus sets the boundary within which human enactments and practices can be said to have a law-like character, or to participate in the enterprise of law.

One of the unfortunate consequences of reducing the opposition between natural law and legal positivism to the question of whether law is necessarily a part of morality concerns the meaning of validity. Legal positivists have generally defined the validity of rules or norms in terms of their effectiveness, that is, the degree to which they actually determine the behaviour of those to whom they are addressed. Thus the commands of an effective or powerful political regime are said to be valid, and therefore to be part of the law, for no other reason than that they are in fact obeyed. Hence comes the positivists’ claim that they deal only with the law as it is or exists, not with the law as someone might feel it ought to be. Law as law exists only if it is effective. The position taken by the positivists suggests that natural law theory is merely concerned with law as it ought to be, and that therefore natural law has no legal validity because it is not as such effective. Relegated to a realm of pure oughtness, natural law is transformed into a woolly concoction of idealist speculation, completely divorced from the facts, and hence declared to be no matter of scientific concern.

Against this positivist view, one should stress that the aim of natural law theory is not to dispense with the creative inputs of lawyers and judges or even legislators, but to spell out the principles which these practical men ought to apply in order to justify their claim to be “practitioners of the law.” Far from seeking the principles of law in a realm of pure oughtness, natural law theorists turned to nature, the realm of necessary effectiveness. Law which is not in accordance with nature is not effective at all. What the positivists regard as effectiveness is merely a mark of the existence of political power of man over man. But the effectiveness of such power does not by itself explain why it should be considered a source of law, much less the only source of law. Unless the ends of power are the ends of law (i.e., the preservation of social life) effective power is not the same thing as effective law.

If we now turn to Hayek, with a view to finding out whether his theories share the central concern of natural law with respect to linking the concept of law to an effective reality, we can begin with what are arguably his most striking contributions to the critique of contemporary society: his conception of social order and its implications for assessing the claims of socialists and interventionists. My point is that, for Hayek, the reality of the social order and its fragility explain the necessary failures of socialist experiments and the destructive tendencies of interventionist policies.

Hayek’s Notion of Social Order

One of the enduring themes in Hayek’s thought is that much of what we usually refer to as social phenomena is the consequence or “result of human action, but not of human design.” Quoting Ortega y Gasset, Hayek maintained that order is not something imposed on society from without, but “an equilibrium set up from within.”¹ Social order is not something artificial, in the way in which a clock is an artificial thing, but neither is it something natural, in the way in which a tree or a cloud is a natural thing.

Such a view of human society can be dialectically opposed either (1) to the view that society is a fully artificial thing or (2) to the view that society is a strictly natural thing, not the product of some design, but not a consequence of human action either. Hayek has fought on both fronts, against the “constructivists” as well as against the “holists” and “organicists.”

Against the former he argued that human society cannot be, and could not have been, designed. Against the organicists and holists he argued that individual human beings are not and could not be the passive parts or cells making up a large natural organism. They have an entrepreneuerial capacity to initiate change, not because they are somehow outside their social and cultural context, but because their actions are necessarily underdetermined by that context.

The two arguments share a common ground in Hayek’s views on the complexity of the social order and of the human mind.² These are complex orders not just in the sense of having many parts and many relations, but primarily in the sense of being unsimulatable. There can be no predictive model of the social order which is not as complex as the social order itself. As a result, the consequences of an action cannot be predicted very far into the future or outside the immediate neighbourhood of the place where it originated: unforeseen and unintended consequences abound. On the other hand, the social order has within it human beings who are similarly complex: tracing the consequences of a social influence on an individual runs into similar limitations. At best we may be able to recognize and predict patterns, but there is no basis for assuming that the patterns themselves are causally active.

Hayek argued that socialist or collectivist central planning was a mistake, not because mistakes were made in implementing the grand designs, but because the very idea of collectivist central planning betrays a fundamental misunderstanding of the nature of social reality. Socialism is a mistake because it does not respect the objective limits to what is possible. It is, in a word, a denial of natural law, and as such bound to fail.³

Socialist theories were based on the idea that central planning would vastly improve upon the efficiency of the market with the fully informed ex ante co-ordination of the command economy. This could only be a fantasy, because the market uses much more knowledge or information than could possibly be made available to a central planner. If the market uses this knowledge less efficiently than one might hope, it is still true that the only way to remedy the deficiency is to exploit more of the opportunities the market order offers.

The centralization of dispersed knowledge in one centre is hopeless if, as Hayek maintained, a significant part of the knowledge actually used is of a type that cannot be collected and communicated without great or absolute loss of informational content. Thus, on account of the Hayekian knowledge problem, the central planner is an impossibility, and every attempt to have one must necessarily run out of steam far below the standard set by the market.

It was in this context that Hayek began to stress the importance of the particular localized knowledge of particular objects and relations at a particular time and place, which is useful only if acted on immediately by those who possess it, and the knowledge embedded in skills and personal experiences, which cannot be separated from the person who has it. “Tacit knowledge” became for him a very wide category indeed. It encompassed also the knowledge embedded in social practices, rules of conduct, institutions, which we follow without ever fully understanding them, because they are the outcomes of historical processes the details of which, being tied up with the subjective experiences, actions and choices of innumerable men and women in innumerable generations, are vitally important yet forever lost.

The Hayekian knowledge problem has made it clear that the economic system is far more complex than most people had realized. But it is not dear why an advocate of collectivist planning should regard it as a decisive refutation of the socialist ideal. However, there is an alternative argument against socialism, developed by Ludwig von Mises, which Hayek may have presupposed but did not stress.

It was Mises who started the debate on the “impossibility” of socialism.⁴ Mises made it clear that the command economy, whether of socialist inspiration or not, by displacing the market, deprived itself of a vital compass. All action is speculative, directed towards an unknown future that can only be anticipated on the basis of an understanding of how changes may affect present conditions. In a market economy people can speculate about future prices and on the basis of these calculate and compare the expected costs and revenues of various courses of action. When they embark on the one or the other of these courses of action they can then monitor their performance by comparing the prognosticated prices with the actual prices as they become known as well as with new assessments of future prices. This enables them to make adjustments to their plans on the basis of a continual evaluation. Market prices are essential for economic calculation and recalculation, and therefore for avoiding waste.

Thus, for Mises, even if the knowledge problem could be overcome, central planning could not exist except in the form of blind commands imposed without any calculational rationality and without any possibility for detecting errors. A socialist society will end up consuming its capital in wasteful efforts to implement plans that are simply irrelevant from an economic point of view.

There is a striking difference between Hayek and Mises here. Mises did not make much of the knowledge problem, not because he failed to recognize it, but because it is essentially the same in a market economy as in a socialist economy. With respect to making present arrangements for future outcomes people in a market economy have individually no more knowledge (in the Hayekian sense) than the socialist planner. They may and usually do have some information about “present [i.e.,, recent] prices.” However, the observed prices are simply raw, uninterpreted data, excusing no one from speculatively assessing their significance.

For Mises, then, the decisive argument against central planning is that it could not calculate even if perfect knowledge is assumed; whereas the argument for the market order is that regardless of the imperfections of knowledge it is capable of calculation. Hayek on the other hand seems to have lost interest in the calculation problem, perhaps because he became more and more interested in explaining social order in terms of the dark, unreasoned, under-the-surface tectonic movements of customs, traditions and institutions.

The main point of this discussion is to emphasize that for Hayek, as for Mises, the evaluation of socialism does not really depend on one’s ideology or ultimate values, but on one’s grasp of the reality of social order. Socialism is condemned because it is not in accordance with the nature of the thing it purports to be concerned about.

Both Hayek and Mises attempted to extend their criticism of socialist doctrines to interventionist ideas. If replacing the market economy with the centrally planned command economy is a mistake, then intervening in the market by way of coercive policies is also a mistake. Stated in this way the argument is a non sequitur. But it can be backed up with a slippery-slope argument to the effect that interventions in the market economy tend to call forth further interventions, strengthen the role of the state, and eventually lead to full socialism. This strategy was in fact an important element in Hayek’s and Mises’s attacks on interventionism. Hayek used it to explain why we were on “the road to serfdom,”⁵ and Mises warned that “middle-of-the-road policy leads to socialism.”⁶

The gravitational pull which causes the movement down the slope is explained first by the argument that interventions will produce unforeseen and unintended consequences which will often turn out to be the opposite of the stated aims of the intervention. The typical example is a price ceiling motivated by the desire to allow more people to buy the commodity. But if this maximum price increases the demand for the good (the intended consequence), it may also induce producers to cut back on production or to switch to other lines of business (the unintended consequence): shortages will develop, and one may expect calls for rationing the commodity, or for subsidizing production, that is, for further interventions.

Another element in the explanation of the movement down the slope is that intervention creates new formations of groups with vested interests in maintaining or expanding the interventionist apparatus of the state. For the members of such groups (politicians, bureaucrats and recipients of subsidies) power, influence, social standing and wealth are direct results of the interventionist policies. Not only will such groups defend their advantages, other people will be tempted to make interventionism work for their own benefit as well.

The main institutional aspect of the slippery-slope argument is indeed that interventionism opens up an additional way for reaching one’s goals. Political action, which aims at having the state provide goods or benefits at the expense of the taxpaying and/or of the law-abiding community (as in the case of regulations, restrictions of economic freedom), becomes available as an alternative to provision of the goods through the market. It is now rational for any individual, organization or group to ask whether it should invest in political or in economic means. Interventionism thus weakens reliance on market processes. Democratic pressures as well as the self-interest of politicians and bureaucrats may greatly increase the availability of opportunities and avenues of political action, thereby decreasing the oppor-tunity costs of such action relative to action through the market.

To the extent that the critique of socialism is a critique of the idea of an economic organization that professes to dispense with the market, it does not matter that none of the arguments mentioned here demonstrates that what lies at the bottom of the slope is socialism. For the slippery-slope argument surely purports to say that interventionism tends towards the destruction of the market order.

Hayek’s views on social evolution are particularly strong supports of the slippery-slope argument. If social institutions are the product of an evolutionary process, if they are embedded in a wide-ranging set of customs, traditions, modes of thought, and if they are mutually dependent in that not one of them is not an adaptation to other institutions in its environment, it should not be expected that a set of institutions, once destroyed or seriously impaired, can easily be restored.

The market order is the result of a long process of learning, but not a result that can be divorced from the process that gave rise to it. It is a spontaneous social order, and as such cannot be imposed “from without,” only “set up from within.” The evolutionary aspect of Hayek’s thought does not support an optimistic attitude with respect to the (re)emergence of a market order in a setting where most of the customary and traditional sources from which it must draw its strength have dried up.

Compared to Hayek, Mises comes across as a rationalist. He insisted on the importance of ideology. “Society,” he wrote in Human Action, “is a product of human action. Human action is directed by ideologies. Thus society and any concrete order of social affairs are an outcome of ideologies.” Mises did not mean to say that societies are rationally designed.⁷ For him, reason (i.e., understanding) was a necessary condition for maintaining a complex social order. Not denying that a social order may come into existence as an unintended outcome of an innumerable set of interactions, he nevertheless rejected the Hayekian approach which eventually made customs, traditions, and so on, virtually the ultimate referents of social analysis. Without an articulate theory of social order any marginal deviation from established custom would be as likely to be allowed as any other. The weight and direction of custom would shift in imperceptible ways, and social disorder would be as spontaneous as social order, if people act according to a false ideology, or are incapable of recognizing false doctrines of social causation.

For Mises, then, social order and its progressive development require that people grasp or understand why certain types of actions are to be forbidden and others to be allowed. Consequently Mises had a much more positive view of formal constitutions and explicit conventions. Hayek had a tendency to approve of these only if they express a knowledge embedded in customs and traditions. For Mises the question was whether they express an understanding of how individual actions produce social effects.⁸

Whether the slippery-slope argument itself is sound or not, it should be obvious that it too relies on the primacy of real forces. What is wrong with interventionism is that it does not have an adequate idea of how the social order links causes and effects into recurring patterns. That is why interventionism tends to undermine social institutions even if that is not its intention. It too is a violation of the natural laws of social order.

The Humean Connection

If Hayek has a contribution to make to natural law, the most obvious place to look for it is Hume’s theory of natural law, which Hayek has openly and repeatedly praised as the first true philosophy of his own brand of liberalism.⁹ Of course, such an undertaking must avoid the Scylla of seeing Hayek as a Kantian as well as the Charibdis of seeing Hume as a utilitarian, since in either case we shall miss the link to the central concern of natural law theory. Nevertheless, I do not think the voyage is doomed to fail from the start.

“The sense of justice,” Hume wrote, “cannot be derived from nature, but arises artificially, tho’ necessarily from education and human conventions.”¹⁰ This concept of something that is at once artificial and necessary is basic to Hume’s theory of natural law. Once it is understood, there can be no objection to calling what it denotes “natural”:

Mankind is an inventive species; and where an invention is obvious and absolutely necessary, it may as properly be said to be natural as any thing that proceeds immediately from original principles, without the intervention of thought and reflection. Tho’ the rules of justice be artificial, they are not arbitrary. Nor is the expression improper to call them Laws of Nature; if by natural we understand what is common to any species, or even if we confine it to mean what is inseparable from the species.¹¹

Human survival would not be possible without the invention of rules of justice, which are the result of thought and reflection, judgement and understanding, that is, of what Hume called the natural remedies, “for what is irregular and incommodious in the affections.”¹² But thought or reason could never have grasped the laws of justice as such if it had not been for the long experience with the effects of adhering to, and departing from, them.

The basic rules of justice, in Hume’s account of natural law, are “the stability of possessions, the transference of possession by consent, and the performance of promises.” It is because men appreciate its vital importance for the maintenance of society and therefore of their own well-being and subsistence, that they come to see justice as something that ought to be, even if irregular and incommodious affections prevent it from being assured. Stability of possessions is the first natural law of society, and therefore of justice and property. Property is “nothing but those goods, whose constant possession is establish’d by the laws of society; that is by the laws of justice.” A person’s property is some relation to external objects, but the relation is “not natural, but moral, and founded on justice.” Property, then, is an artificial yet necessary and non-arbitrary relation; it is a natural right in the same sense in which the laws of justice or of society are natural.

The natural laws of society should be distinguished from natural laws of human behaviour, or of human action—that is, the laws which govern man’s pursuit of his interests. Obviously human action is capable both of strengthening and of impairing the conditions for social life. Therefore the laws of society are compatible with, but not implied by, the laws of human action. That is, basically, why Hume felt it necessary to insist on the artificial character of the rules of justice, while at the same time affirming their necessity. The necessity is natural, however, if we consider that man and human society are coeval. Language, reason, understand-ing, judgement are attributes of social man, and that is the only sort of man there really is.

Self-interest cannot be a sufficient motive for the performance of just acts. If nothing else, death may shield us from the consequences of our own actions. Our own injustice may have its rewards in this life, and impose its costs only on those who come after us. Thus mortality allows us to ignore justice, reap the rewards, escape the inevitable costs and raise our children in the belief that our conduct instantiates the preconditions for their welfare and happiness. That is why blind custom or the rule of precedent is not necessarily a store of wisdom, but possibly the accumulation of folly.

The problem, then, is that while “society” cannot escape the “punishment” for unjust acts, it is different for the individuals responsible for them. Society cannot escape the punishment because it is a real order, a pervasive network of causal relation-ships. Some people will have to pay, and to pay dearly, because the effects of injustice in the end reduce themselves to the destruction of the social order. Injustice, therefore, is objectively bad in its consequences, and naturally esteemed to be wrong. We cannot sympathize with what is objectively bad, and we cannot approve of it when there is no personal interest which in our own estimation outweighs its badness for others. But the only interest we can have in something for which we have no other personal interest is that of sympathy. Hume’s argument is that sympathy is a natural sentiment, which if it were not naturally present in the soul could not be produced by “any combination or convention.” Sympathy explains why we feel we ought to respect the laws of justice.

It is therefore a mistake to claim that Hume gave a utilitarian account of morality and law. His is a consequentialist argument, but only because it relies heavily on the notion that causes produce effects. Actions may produce social order, but they may also destroy it; they can be good as well as bad. Because man is a social being, endowed with a capacity for sympathy, he cannot escape rating actions according to the contribution they make to the good or to the bad. But there is no calculus and no maximizing of any sort of utility. There could not be, because there is no calculating subject choosing morality or law. We naturally approve of what tends to be beneficial to society, not because we want to benefit society, but because we recognize in what is beneficial to society the solution to a problem we all have to deal with. If we are led astray in our sympathies, the reason must be that we have a false conception of what social order really is.

For the reasons set out above, one cannot induce an individual to conform to the natural laws of justice only by appealing to his self-interest. We can convince him of their rightness, by an appeal to his sympathy, but only if he has a dear understanding of the causal relations which make justice what it is, the fountainhead of all human welfare and happiness. But such conviction cannot be expected to carry much weight in practice, however conclusive it may be for the person in a speculative or philosophical mood. The continued existence of social order requires institutions which provide ways to make the individual effectively accountable for even the remoter consequences of his actions. It requires institutions which make him self-interestedly concerned to behave in accordance with the natural laws of justice.

Property and freedom of contract may be natural rights (in the sense referred to earlier), but respect for them is not automatically secured. Here we enter into the province of positive or man-made law (whether customary or judge-made or legislated law). Property law and contract law as well as liability rules are rooted in the natural laws of justice, but they do not define the conditions of social order, they are only methods for securing their observance. Their conventional component is therefore much more prominent. There can be no a priori determination of the form they should take, because their concern is to secure the principles of social order under the particular circumstances of time and place—hence the variety of national legal rules. Nevertheless, as they are means to secure the natural laws of justice, and partake in the morality of justice only because they are means to that end, they can claim no validity in and by themselves. This is so because they are and can be effective only to the extent they determine (i.e., apply) the natural laws of justice. To think of them as effective in any other sense—for example, because they are effectively enforced by the authorities or adhered to by the masses—is to regard them as no more than the particular actions of particular men seeking particular ends: it is to disregard their law-like character.

Hayek has wholeheartedly accepted the Humean philosophy of law, and extended it with his own insights on the co-ordination problem and on what became known as the Hayekian knowledge problem. The laws of justice are accepted as necessary conditions for solving the problem of co-ordinating the actions of many people in an environment characterized by radical ignorance. For the rules of justice can be translated into the basic institutions of the market order, which Hayek has consistently defended as the only type of social order in which that problem can be solved. As long as man is a social being and as such unable to stand outside society, all we can know is a number of patterns or laws of society, which do not express knowledge of the thing itself in all its complexity, but an abstract understanding of what makes it tick. The application of these articulated rules must necessarily be underdetermined at the conscious level and therefore proceed on the basis of tacit knowledge the full articulation of which will forever elude us.

If, as Hayek has argued, it is a mistake to assume that we have or can have knowledge about society we cannot in fact have, it is equally mistaken to assume that any combination of abstract rules of justice can be made to work. To assume that the transference of possessions by universal consent is a “better” rule of justice may not be to assume knowledge we cannot in fact have, but is none the less a denial of the reality of the social order. Also, to guarantee the stability of possessions regardless of property relations—for example, by enforcing an arrangement under which the income earned by an individual is regarded as the property of some other individual—is to forget that the rules of justice are necessarily what they are given the historical processes and the realities of the factors that produced them, especially human nature and scarcity.

It is thus a mistake to regard the Hayekian conception of the rules of justice as merely procedural. They are procedural in that they do not prescribe specific outcomes or end-states, but it is not their procedural character, nor even their being concerned with possessions, consent and promise, that accounts for their justice. They have to be seen in connection with entitlements. For these too evolved over time in response to practical problems. I doubt that either Hume or Hayek would have cared to speculate about the evolution of a system of entitlements that was radically at odds with Locke’s theories of self-ownership and labour. In fact, while Locke, like Hobbes and Rousseau, presented his thoughts on property in the context of a social contract theory, his picture of the state of nature, unlike their accounts of it, was merely a description of a society governed by the customs and traditions of social life with which he was familiar—including the rules of justice, but leaving out the formal apparatus of government. He described the prevailing sentiments about the justice of entitlements other than legal entitlements deriving from the exercise of political authority or conquest. From a Hayekian perspective this Lockean approach is an eminently sensible and commonsensical way to proceed when one endeavours to criticize one aspect of a culture, in this case the development of a practice of absolutist rule. How else can one consider its consistency with the rest of the culture, which is, according to Hayek, the only possible way to practice the art of social criticism?

One difficulty in understanding Hayek is the problem of reconciling his ideas of immanent criticism of aspects of a culture within a process of cultural evolution and of our radical ignorance of what is going on, on the one hand, with his advocacy of the market order, liberty and liberalism as a superior social and political philosophy, on the other. Part of the problem is that talk about traditions tends to evoke images of traditional societies which are usually not known for their highly developed division of labour or extensive markets but rather for their hierarchical, or in some cases egalitarian, social structures. If such societies are considered, one could easily find that there is absolutely no basis in tradition or cultural history for advocating, say, a market economy or liberty. But Hayek’s (and Hume’s frame of reference was the great society, the extended order, when the problem of co-ordination exceeds the capacities for explicit direct social control either by a cohesive hierarchy or by mutual observation. While he obviously did not believe that nothing can destroy the great society, he did believe that there is no way back—either we learn to live comfortably with it or we had better be prepared to die miserably without it. Once it has emerged, regardless of how it did so, the critical task is to improve it within the limits of what is practically and epistemologically possible and on the basis of the laws that make it what it is.

Neutrality

The main characteristic of the great society is that whatever unity it possesses can no longer be traced back to common ends. Its problem of co-ordination is precisely that it is not one of arranging means towards the attainment of a single goal. The great society is the home of people who are not only strangers to one another, but who are also exponents of different cultures and traditions, who have widely divergent moral and religious beliefs, personal backgrounds and ambitions. How can they live and work together with a minimum of conflict? For Hayek, the problem of co-ordination must be solved without disregard for the many divergent aims people have. The rules of justice of a great society can take no account of the particular ends people pursue, but only of the manner in which they do so.

The implication of this view is that law and morality should be separated. For law, being related to the real conditions of the existence of the social order, is now called upon not merely to express tradition, but to co-ordinate the actions and outputs of people about whose cultural background almost nothing is known. In other words, the great society requires the evolution of a specifically legal tradition. This is what happened with fits and starts in the history of Western civilization. But Hayek was not happy with the more recent developments of the legal tradition in the West. Rather than adapting itself to the requirements of the social order of a great society, it adapted itself to the requirements of a hierarchical structure, the state, with the result that it now seems that legislation is the primary source of law, rather than an incidental aspect of law.

The preceding discussion of Hayek’s reasoning on the co-ordination problem suggests the hypothesis that the separation of law and morality is a conclusion of applying natural law thinking to the problems of a great society. For it was on the basis of the real constraints on what is possible that he came to see the neutrality of law with respect to particular ends as an implication of its justice.

I believe the hypothesis can be used to defuse a common criticism of Hayek’s thesis about the requirement of neutrality and the distinction between law and morality, and therefore of his liberalism. One recent exponent is Jeffrey Friedman, who has boldly declared that “liberal neutrality is a myth.”¹³ “The reason,” he says, “is that . . . to adhere to the value of neutrality is patently to take a moral position: it is to say that it is better for the law to allow people to do what is ‘morally wrong’ than to force them to do what is morally right.” However, from the perspective of natural law, the question, whether it is better for the law to do this or that, hardly makes sense. The more appropriate question is whether natural law allows people to force other people to do what the first think or claim is morally right. The answer to this question is not a matter of choice or of consequentialist evaluation, but of appreciating the nature of things.

With respect to liberty, the natural law answer is not that liberty produces consequences which one may or may not value higher than the consequences of interfering with liberty. The answer is, rather, that liberty or justice is the precondition of complex social order without which no economic, moral or political values could exist. In any particular case one’s verdict on the merits of interfering with someone’s liberty as against the merits of noninterference may be in favour of the former, but even if this were true in all cases, the argument for liberty or justice would still stand. For it does not depend on a utilitarian calculus (i.e., on perceptions, expectations and the valuation of consequences), but on the conditions for the existence of the social order itself.¹⁴ It is, then, not necessarily the case that “to adhere to the value of neutrality is patently to take a moral position.” Moral choice presupposes the conditions of social existence; it is not about those conditions. The liberal contention is, in Hume’s words, that the

question . . . concerning the wickedness or goodness of human nature, enters not in the least into that other question concerning the origin of society. . . . For whether the passion of self-interest be esteemed vicious or virtuous, ‘tis all a case; since itself alone restrains it: So that if it be virtuous men become social by their virtue; if vicious, their vice has the same effect.¹⁵

Friedman also finds that neutrality is paradoxical “when we prize liberty as an intrinsic good rather than as a means to good consequences.”¹⁶ He notes that freedom “is properly the description of an agent before he or she chooses a value . . . . Seen in this way, morality is fundamentally at odds with freedom: freedom is the multiplication of options, morality is the narrowing of them by the selection of one over the others.”¹⁷ But this argument begs the question: it presupposes the reduction of politics and law to morality. Let us accept the definition that moral freedom is the absence of moral obligations towards oneself or others (“I am not free tonight: I have to prepare for my exams/my parents are coming over”); it does not follow that there is such a thing as moral freedom, or that a person in society is at any time without moral obligations. In any case, this is hardly what we mean by political freedom. One is free, in the politically relevant sense, to the extent one’s rights are respected. Far from being at odds with morality, such political freedom is a precondition of moral action. Yet Friedman boldly asserts that “libertarian liberalism implicitly denies the legitimacy of any other values, since what it values is not values but the pre-moral condition of freedom to select among them.”¹⁸ But to value the pre-moral condition of political freedom is not the same thing as to value moral freedom, that is, the condition of being under no moral obligations. That I resent being coerced does not mean I resent taking care of my children.

Friedman goes on to state that “attempts to enforce a given standard of appropriate behavior are seen in libertarian societies as mere efforts to ‘impose one person’s values on another.’”¹⁹ But there is, to begin with, a distinction between “a mere effort to impose one’s values on another” (without which it is difficult to see how there could be cultural transmission and communication of values) and “enforcing a given standard of appropriate behavior” (which presumably means coercively preventing people from acting on their own values). There is no need for a liberal to say that coercively imposing one’s values on another is wrong because it is a form of imposing one’s values.

Friedman also repeats the old canard that the argument for the separation of law and morality requires the assumption that individual choice is “a mere exercise of what economists like to call ‘individual tastes.’”²⁰ Natural law theory, and Hayek’s Humean theory as well, regard persons as real things with a complexity that can never be completely mastered, not even by themselves. There is an objective quality to the person which allows him to act on the basis, not of whim or mere taste or preference, but of his (limited) understanding of himself. True, such choices are still relative to himself, but they are not merely subjective or whimsical.

This will not satisfy Friedman. So intent is he on finding paradox upon paradox, that he now claims that liberalism is really a form of determinism:

Libertarianism rests implicitly on an endogenous determinism, which just as effectively as the exogenous variety stops one (let alone others) from criticizing oneself, i.e., from accounting for one’s tastes in order to consider the possibility of changing them, rather than merely expressing them.²¹

Again this goes far too fast. To begin with, whether there is such a natural self is a question of fact. But if there is one (and I cannot see how there could not be one),²² why should this be taken to mean that there is no room for criticizing what one does or wants? Friedman undercuts his own claim, that “anyone with a modicum of self-awareness understands that there is no spontaneous ‘there’ in there,” by immediately qualifying it out of existence with the remark “that one’s actions are in large measure susceptible to rational control.”²³ Consistency would have required him to say “fully susceptible.” On the Hayekian view, of course, there is a spontaneous “there” in there, which is why we can never have more than a measure of rational control over our actions, but also why we can contextually criticize our actions and choices as being consistent with what we are.

What is the reason for Friedman’s claim that liberalism reduces the self to “given (and as such uncriticizable) wants”? Apparently none other than his belief that to oppose interference in the market is to defend whatever people want on the ground that it is freely chosen.²⁴ But, again, to oppose coercive interference in the market is not to defend or even condone whatever outcomes the market produces. It is not to free the individual of moral responsibility, but to insist on it. For the rules of the market at least tend to ensure that people bear the consequences of their own actions; but they do not rule out noncoercive attempts to improve the morals of other people. For Friedman this is not enough: the failure of liberalism is that it does not allow coercive paternalism. He adds, that we—but who does he have in mind?—should practice such paternalism whenever it will not “backfire.”²⁵ This is to sweep aside all warnings about the limitations of our knowledge, which Hume had in mind when he said that “tis impossible to separate the good from the ill.” Reading Hayek from a natural law perspective, I can only conclude that there is no substance to the charge that liberalism is inconsistent because of its claims of moral neutrality.

Notes

This paper was prepared for a symposium on Hayek organized by Jack Birner held at the University of Limburg, 8 May 1992.

¹1 F.A. von Hayek, The Constitution of Liberty, London; Routledge & Kegan Paul, 1976, motto for Chapter 10.

² Hayek’s first thoughts on complex orders were concerned with the mind, although these were not published until 1952, in The Sensory Order, Chicago: University of Chicago Press.

³ Hayek’s comments on socialism can be followed from his early contributions to the debate on collectivist economic planning in the 1930s to his last book, The Fatal Conceit, London: Routledge, 1988, where he declares that ‘socialist aims and programmes are factually impossible” and even “logically impossible” (p. 7).

⁴ Ludwig von Mises, “Economic Calculation in the Socialist Commonwealth,” in F. A. von Hayek (ed.) Collectivist Economic Planning, London: Routledge & Kegan Paul, 1935, pp. 89-130. Originally published in German in the Archiv fur Sozialwissenschaften, 1920.

⁵ The title of his famous polemical tract of 1944.

⁶ The title of one of Mises’s many papers on interventionism.

⁷ “The individual does not plan and execute actions intended to construct society. His conduct and the corresponding conduct of others generate social bodies”: Human Action, Chicago: Regnery, 1966, p. 188.

⁸ But it should be remembered that Hayek (notably in the first volume of Law, Legislation and Liberty, Chicago: University of Chicago Press, 1973) repeatedly backed away from the position that customs and traditions are unopposable and sacrosanct, although his views on our “inevitable ignorance” often seem to imply it.

⁹ F.A. von Hayek, “The Legal and Political Philosophy of David Hume,” in Studies in Philosophy, Politics, and Economics, Chicago: University of Chicago Press, 1967. The link has been obscured by and even depreciated on account of Hayek’s attempts to state his social and political philosophy in Kantian terms. See, for example, John Gray, Hayek on Liberty, Oxford: Blackwell, 1984, and Chandran Kukathas, Hayek and Modern Liberalism, Oxford: Clarendon Press, 1989. To what extent the Kantian influences should be discounted or given a prominent place in an interpretation of Hayek is a question I cannot deal with. (See the contribution by Nico Roos, Ch. 15 of this volume.) However, it seems to be beyond dispute that Hayek has always tried to present Kant as being in all important respects in accord with Hume.

¹⁰ David Hume, A Treatise of Human Nature, ed. L.A. Selby-Bigge, Oxford: Oxford University press III, 2, 1.

¹¹ Ibid.

¹² Ibid., III, 2, 2.

¹³ Jeffrey Friedman, “Accounting for Political Preferences: Cultural Theory versus Cultural History,” Critical Review 5(3), 1991: 327.

¹⁴ “However single acts of injustice may be contrary, either to public or private interest, “tis certain, that the whole plan or scheme is highly conducive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual. “Tis impossible to separate the good from the ill” (Hume, Treatise, III, 2, 2).

¹⁵ Hume, Treatise, III, 2, 2.

¹⁶ Friedman, “Accounting for Political Preferences,” p. 327.

¹⁷ Ibid., p. 328.

¹⁸ Ibid.

¹⁹ Ibid., p. 327.

²⁰ Ibid.

²¹ Ibid., p. 329-30.

²² Cf. Frank van Dun, Het Fundamenteel rechtsbeginsel, Antwerpen: Kluwer-Rechtsweten-schappen, 1982.

²³ Friedman, “Accounting for Political Preferences,” p. 330 (emphasis added).

²⁴ Ibid.

²⁵ Ibid., p. 329. I admit that in a free society an act of coercive paternalism may sometimes be found to be excusable, even if condemned as a matter of principle. But this no more calls into question the coherence of the idea of neutrality (separation of law and morality) than does the fact that in some cases an act of premeditated murder may be found to be excusable.

Posted November 19, 2007

van Dun page