Was Hayek Right?

I want to assess the arguments for a minimal state in Hayek's classic The Road to Serfdom. I think, and perhaps I can show, that the situation is not so simple as he thinks.

Firstly, he extrapolates what he calls the Rule of Law. He is at pains to stress that this is not to be equated with brute legality: laws are only consonant with the Rule of Law if they fulfil certain conditions, and indeed, he cites the example of Hitler's rise to power in 1933, which was attained by perfectly constitutional means. (He may have mentioned Mussolini's march on Rome in 1922). So what is the Rule of Law? Quite simply, it is the constellation of norms and rules which serve the dual purpose of limiting the power of the state and, by so doing, providing the "fair certainty" under which individuals can pursue their freely chosen ends. These rules, in undergirding the transactions of and between free people, impart an air of predictability; and, in turn, supply the means of greater collaboration that is the sine qua non of a prosperous economy.

In order to tease out the implications of this formulation, it will be necessary to contrast it with collectivism. This is the doctrine, in sum, that the means of production should be centrally owned by a single, monolithic authority which delegates to itself the power to distribute the fruits of the economy, with no external limits whatsoever to that power. Whether this a fair definition or not does not really matter; the point is that such a conception fails to take the measure of the fact that no unitary, all-embracing and self-avowedly unimpeachable set of values can ever be satisfactory for any one man, let alone a whole society. Note here that, or so it seems, Hayek is not denying the thrust of moral argument per se: he is only saying that moral truths in the crystalline, irrefragable sense are beyond the purview of man's reason. This is his basis for saying that laws, to be worthy of the name, should be framed in strictly general terms. If they trespass such a restriction, and dictate on specificities of time and place, they deprive a man of his economic freedom, in that the state will no longer facilitate the achievement of his private ends; but, more importantly, they are a canker to his moral freedom, divesting him, as they do, of the ability to choose those ends in the first place. Collectivism is thus doubly pernicious: it poisons both the means and the ends of man's pursuit of the good life.

The problem with Hayek's argument is that it is an enthymeme: there are a host of unargued assumptions which demand explication. Not least of these is his always present but never quite articulated Liberalism, the substance of which is that there are a plurality of competing conceptions of the good that it is the job of politics to express but not controvert. As I have adverted, he does not necessarily go as far as someone like Rawls, who stressed that these concepts of the good are equally valid but irreconcilable. His reservation is epistemological rather than ontological: morality is too complex to admit of a monopoly by any one party or group of parties. Politics must occupy a neutral ground between these conceptions, providing the "rules of the game" which are a condition of individual flourishing. And now a problem arises. What is this vaunted neutrality, and how is it possible? Hayek says that the Rule of Law stipulates rules with no substantive content in that they merely enumerate how society is to be run without favouring one group over another, or allowing one such group to gain a monopoly of power, and so forth. But is this sleight of hand really valid? Isn't it a kind of forfeit logic to suppose that any rules pertaining to human nature can be purged, voided, dredged and emptied of all substantive content? Does the Rule of Law logically precede the legal system as it is instantiated in a given political order? And of course, he has one tacitly assumed article of faith that emphatically cannot be defended on neutralist grounds, but which is everywhere present in his pages: that is, the priority of liberty over equality.

It is not the case that this line of argument, however unarticulated, is completely without force. He espouses equality before the law, but it quickly becomes clear that this is essentially a means of promoting the "inviolable right of the individual". It is interesting to note in passing that there is a vexed relationship between natural rights and collectivism, given that they both find their origin in the French Revolution. In any case, criticisms of natural rights are too numerous and too familiar to rehearse here. I will mention what I consider to be the key one. It argues that natural rights conceive man as a mere abstraction, occluding his complexity as a moral agent
and failing to capture not only his internal existence but his relation to the society which he inhabits. It is not quite true that the rational choice model of the self and that conceived in terms of natural rights are identical, but they do have some striking similarities: namely, they are predicated on the notion that the individual is not only "free from" but "free to" - separable from, and to some extent free to choose, the social identity which otherwise constitutes him. Communitarians would protest that Liberals like Hayek treat society like a collection of strangers, forgetting
that people are animated by communal ties and a sense of shared understandings, that they are not simply atomistic rational egoists pursuing their own paltry, private gains under a halo of solipsism. Hayek, of course, bridles at this interpretation. Self-interest may be as broadly conceived as possible, he says: it is whatever we will. So altruism is not ruled out of court - rather, it is left for people to choose it of their own free will.

(As corollary of this, Alan Duncan and Dominic Hobson turned the tables by arguing that it was the communitarians who were being metaphysical, since the unit of society is the individual: that is, it can only be understood by reference to the people who comprise it. This is approximately what Thatcher meant when she said that there is "no such thing as society".)