Law, Legislation and Liberty

Law Legislation & Liberty, by F.A. Hayek. Chicago: University of Chicago Press, 1973, 184 pp., $7.95.

Professor F.A. Hayek, who shared the 1974 Nobel Prize in economics, has contributed prolifically to the admittedly meager literature of the last thirty years which attempts to delineate and justify a political order based on individual liberty. His books include The Road to Serfdom, Individualism and Economic Order, and The Constitution of Liberty. He currently is Visiting Professor of Economics at the University of Salzburg.

Scholars among us will appreciate Hayek's latest work, Law, Legislation, and Liberty, the first volume of a projected trilogy dealing with the general topics of the title. Hayek is attempting to come to grips with the intellectual history of western thought, sorting out those trends which are likely to promote liberty from those which are not.

In Hayek's estimation the intellectual root of the trend away from liberty is "Cartesian rationalism." Reason for the rationalists was defined as a logical deduction from explicitly stated premisses. The problem with this view of reason is that it leads to what Hayek calls "constructivism," which holds that human institutions will serve human purposes only if they are deliberately designed for these purposes. In other words, human institutions will only be rational if the purposes of those institutions are made completely explicit, along with the projected steps necessary in order to achieve those purposes.

To counter rationalism and constructivism Hayek adopts a Humean and Kantian view of reason. His view is that human reason is greatly limited; he stresses human ignorance and our inability to fully grasp the particulars of reality. In order to deal with the particulars of reality we employ abstractions, categories of thought by which to organize the particulars. As Hayek puts it, "abstract concepts are a means to cope with the complexity of the concrete which our mind is not capable of fully mastering." (p. 29) The implication here is that abstractions are not reflective of reality itself but are more like tools or modes of understanding which individuals bring to reality. This Kantian view of human reason is indicated more fully by the following passage:

Abstraction is not something which the mind produces by processes of logic from its perception of reality, but is rather a property of the categories with which it operates—not a product of the mind but rather what constitutes the mind. (p. 30)

Unfortunately Hayek does not consider the classic (Platonic-Aristotelian) view of reason at all. Thus those of us who have adopted this classic view of reason, in one form or another, will find no arguments which might cause us to question our beliefs and to look more favorably upon the view adopted by Hayek.

It is important to realize that Hayek is doing intellectual, not philosophic, history. When he speaks of Descartes or the rationalists he is only considering an aspect of their thought without pointing out qualifications, modifications, and revisions which must be taken up in doing philosophic history. Moreover, Hayek neglects certain features or connections between rationalists and "anti"-rationalists which do not fit his dichotomy. For example, the greatest constructivist and rationalist of them all, Leibniz, has close affinities to David Hume with respect to reason and experience. (Both Leibniz and Hume share the view that experience is wholly contingent, and that necessary connections can exist only between ideas or concepts—we can have no basis for ascribing necessary connections to experience.) Nonetheless, what Hayek does focus on with respect to the rationalists is quite important, and one can most reasonably agree with his contention that this aspect of rationalism is mistaken.

FREE ORDER

The view of reason which Hayek adopts underlies his alternative to constructivism. Hayek makes the following arguments: 1.) we are often guided by rules which are not explicit, i.e., which tacitly guide our behavior even though we may not know about them, 2.) the liberal order is one which is founded upon abstract principles, i.e., principles which are wholly general (though categorical) and do not attempt to dictate the particular actions of individuals. Such principles only provide a kind of framework in which individuals may freely pursue their ends, and 3.) any attempt to make explicit and dictate rules on a particular or concrete level is doomed to cause destruction in a complex social system, first, because it is simply impossible to take into account all the relevant particulars of human actions, and second, because such dictatorial procedures would eliminate the spontaneity and natural readjustments a society must have and make in order to remain complex.

Hayek thus defends the liberal order from an evolutionary perspective: the liberal order is, and must be, a product of human action but not of human design. This means that the particular characteristics of a given society at any given time will not be intended by the participants of the society but will rather be an evolutionary product of their natural interactions. In other words, the entire configuration of interaction among men will produce institutions which are not designed for a specific holistic purpose but rather spontaneously arise to fulfill a need which the system has created. There will be an overall order but not an overall designed order.

It is in this connection that Hayek distinguishes two sorts of order—taxis and kosmos. Taxis is a made order, one which is the product of design. Kosmos is a grown order, one which develops evolutionarily but is not part of a conscious design. Taxis is only concerned with simple orders, ones where a human mind can perceive all the particulars, whereas kosmos is the sort of order which is too complex for any mind to master and is based on wholly abstract relations. Hayek has chosen the Greek terms "taxis" and "kosmos" to distinguish two kinds of orders not distinguished in English. It should be noted however that for the ancients the term "kosmos" always implied an order pervaded by intelligibility. Hayek's conjunction of kosmos with evolution implies an order whose intelligibility is only reconstructed after the order has reached a certain stage. On the other hand, kosmos for the ancients meant that human intelligibility was a guiding force at all stages, though not in the sense of taxis. In any case, the contemporary mistake has been to suppose that a reasonable social order must conform completely to something of the taxis type. This view is not only unreasonable, according to Hayek, but is destructive as well. It commits the "constructivist fallacy" of supposing that human reason is capable of accounting for all the particulars in the social order in a way that allows human reason to fully plan that order.

The fundamental law or abstract rule which must be the guiding principle for society is liberty. Freedom must be treated as supreme and not sacrificed for particular advantage. It is freedom which will readily serve as the context in which the actions of individuals will evolve institutions. Other principles will guide people as well, but these will operate under the general principle of freedom, and come under the heading of "nomos" or "the law." Nomos is not made law but developed law or that law which guides people's actions but is not delegated by political authority or perhaps even generally known. It is something like the conventions of society. Judges, for example, would attempt to follow the dictates of nomos when rendering a decision, following the general sets of expectations which people live by and which are often only a tacit part of social existence. The desirability of nomos is expressed by Hayek in the following passage:

Principles are often more effective guides for action when they appear as no more than an unreasoned prejudice, a general feeling that certain things simply 'are not done'; while as soon as they are explicitly stated speculation begins about their correctness and their validity. (p. 60)

MORES

Hayek depends a great deal upon the existence of the kind of nomos expressed in the above passage, yet one wonders how necessary it is to the liberal order. One wonders because it seems that in a complex society tacit rules or principles are brought to a level of explicitness. The division of labor alone means that some people (e.g., sociologists) will spend their entire lives studying the mores of a society and making them explicit, and efficient mass communication techniques will make the products of such studies generally known. It is unclear to me just why stress is laid on these tacit principles in Hayek's work. Could we imagine a condition where guiding principles were made explicit and yet were not incorporated or dictated by a legislative authority? Is there some virtue in having certain principles remain tacit? Is there a necessary connection between the increasing attempt to make explicit guiding principles and the rise of constructivism? When reading the book the reader may share my confusion about these and similar questions.

Hayek does not view nomos as being in a constant steady state, however. His evolutionary approach leads him to argue that there will be a kind of competition between various nomoi. Those guiding principles of a society which are more efficient will tend to become adopted, and those societies which are guided by the most efficient principles will tend to be more successful. Hayek thus supposes there to be a kind of progress to social evolution.

The reader of this book may share another puzzle with this reviewer. The book is often confusing with respect to what is the case, what must be the case, what will be the case, what ought to be the case, and what will, should, or must not be the case. Since Hayek mixes history, studies by social scientists, arguments for a certain kind of order, and projections of social development, it is often difficult to discriminate just where such discussions are meant to apply.

This problem reflects, I believe, a deeper one, which is Hayek's avoidance of all moral issues. Because he avoids the moral "ought" the reader is often left with the problem of whether the "oughts" and "shoulds" which he does mention are really "musts," or "maybes" or simply what is desirable. Indeed, it seems that if moral questions were to have a place in this work at all it would be that moral speculation is speculation about nomos law. In other words, morality is simply that which constitutes the nomos of a given society and is therefore wholly conventional.

This is not so much a criticism of Hayek as it is an attempt to ask once again about the relation between morality and the liberal order. Here we seem to have an attempt to justify the liberal order without recourse to moral arguments. Thus the question is, do we need such arguments at all? Even among those who would justify the absence of coercion on moral grounds there is a tendency to drop all moral questions after that; in other words, the moral question is regarded as being fully answered once coercion is shown to be reprehensible. Yet if coercion can be shown to be reprehensible on other than moral grounds (as with Hayek's book) then why engage in moral talk at all? If there is more to the moral question than coercion then what more is there? It seems to me that Hayek's book points us to the problematic nature of these two questions.

The whole set of theoretical principles we have been discussing is buttressed by a great deal of input from various disciplines such as sociology, legal theory, anthropology, economics, and biology. The scholarship and insights are vast; indeed so vast that this reviewer felt it best to concentrate on the overall philosophic position of the book. Those who find Hayek's philosophic foundation questionable will nonetheless find his insights into the nature of society and law illuminating. For those who do not find Hayek's philosophic position bothersome or who agree with it, a pure bonanza is in store. In short, the book is an absolute must for any thinking person. This reviewer (who shares none of Hayek's philosophic framework) is eagerly looking forward to the next two volumes.

Douglas den Uyl received his B.A. in political science and philosophy from Kalamazoo College and an M.A. in political science from the University of Chicago. He is presently in the Ph. D. program in philosophy at Marquette University. He has forthcoming papers in The Personalist, the Journal of the History of Philosophy, and Reason Papers, and has contributed to The Libertarian Scholar.