Law, Legislation, and Liberty (Vol. II), by F.A. Hayek, Chicago: University of Chicago Press, 1976, 195 pp., $10
The long-awaited second volume of F.A. Hayek's Law, Legislation, and Liberty was delayed for an interesting reason. Instead of arguing that the notion of "social justice" leads to a number of conceptual problems, Hayek has come to the conclusion that the concept itself is meaningless! As he explains in the preface, Hayek had to delay publication in order to make the necessary changes in the manuscript. The central contention of the book that the concept of "social justice" is meaningless (certainly a very strong thesis) is one of the many surprises the reader may find. Another, also contained in the preface, is Hayek's assertion that he and John Rawl's, famous for his egalitarian Theory of Justice, agree on "the essential point." More on this later.
Volume two is a continuation of volume one and thus begins with chapter seven. Although it presupposes some of the previous discussion, a reader who has not read the first volume can get into this one without any problem. In fact, those features of Hayek's theory of law that are needed for his critique of "social justice" are repeated.
THE GREAT SOCIETY
The first chapter (chapter seven) is entitled "General Welfare and Particular Purposes." Here Hayek argues that the prime public concern should be, not to provide for particular needs, but to maintain conditions for a spontaneous order, or kosmos (see my review of volume one in REASON, November 1975), where people provide for their own needs. A spontaneous order, one that is not centrally controlled and directed, can function only where the rules of that order are of an abstract nature.
One reason the rules must be abstract—dealing with permissible kinds of actions in terms of general principles—is that no one can know all the consequences of the many actions being taken every day. As such, there is no way to control actions centrally for particular concrete ends without disruptive results, since those ends cannot be foreseen with certainty; nor can the means of coordinating the various actions for those particular ends be established without doing violence to the numerous tacit rules and sources of knowledge on which people act.
The Great Society, Hayek's term for a spontaneous market order, is fundamentally governed by abstract rules. Thus the government cannot be utilized for particular ends without eroding the very foundations of a free society. As Hayek puts it, "The idea that government can determine the opportunities for all, and especially that it can ensure that they are the same for all, is therefore in conflict with the whole rationale of a free society."
Because these abstract rules are not directed at particular ends, they must be enforced come what may (fiat justitia, pereat mundus). Even if at a particular moment some may thus be worse off relative to others, a free society cannot be maintained in any other way. A free society necessarily supposes that some will be better off relative to others if for no other reason than that circumstances are always changing. This state of affairs cannot be altered short of a totalitarian society (and even then…).
The foregoing represents the central thesis of the first chapter. Coupled with this are numerous side discussions. There is a nice critique of classical utilitarianism. Also, Hayek considers the question of evaluating an existing set of rules. Here he argues that there is no absolute system of morals apart from the system in which one lives. Criticism of certain rules governing society supposes that one holds constant (for the time being, at least) some of the governing social rules, which will thereby serve as the basis for evaluating others.
To show that we cannot criticize from outside our own social context, Hayek offers an example of an old Eskimo who is left behind by his tribe to die; he claims that it would clearly be immoral to interfere. But would it? What if the Eskimo was left behind against his will? Would we be immoral for saving the life of one who did not want to live by the "morals of his people"? Are there no moral principles applicable to humans as humans?
Hayek's cultural relativism seems to him to be a weapon in the arsenal of arguments for a free society. Since he is speaking primarily to people in Western democracies, his thought seems to be that they would all admit that freedom is the fundamental value to be held constant. With this admission he will then show that freedom cannot be maintained by current government trends. But since Hayek cannot insist that there is anything conceptually sacred about a traditional moral/political value like freedom (there is no "absolute" moral code), his argument says nothing to those who do not care much, or primarily, for freedom and want to change society accordingly (not to mention those with different views of the meaning of freedom). Nor is freedom itself defended other than by the view that it is "successful" (a point we shall take up shortly).
Basically chapter eight seeks to do two things: to show that justice depends upon human action and to offer the criteria for rules of just conduct. With respect to the former, Hayek demonstrates that it is human conduct which is just or unjust and not states of affairs. To say that a given state of affairs is unjust is meangingless unless it can be shown that unjust conduct brought that state about. In a spontaneous order where no one person or group wills the present order (as it is a product of a multiplicity of actions), it makes no sense to say that a certain state of affairs is unjust. In such a system the actions of people or of a government can be just or unjust but the "actions" of a society cannot.
But what about the justice of the rules of spontaneous order itself? To be just, they must fulfill three basic conditions: universality, negativity, and indeterminate future applicability. The first condition holds that rules ought to apply to all equally. As indicated earlier, the more diverse interests there are the more abstract and universal the rules need to become. And, because interests are diverse and knowledge of all the consequences of actions is absent, rules will most often be formulated in negative terms, setting down what people ought not to do to one another rather than what they ought to do. Finally, these rules of just conduct must apply to an unknown number of future instances.
Since this chapter is devoid of any concrete example of rules that meet these criteria, one is forced to think up one's own. Surely governmental action directed at aiding a particular industry would violate justice by these standards. But what about: No one may make more than twice as much as any other member of society? This last rule is universal, negative, and applies to an unknown number of future instances. Furthermore, since Hayek is in "essential" agreement with Rawls it would seem that Rawls' difference principle could also be made to qualify as just. Indeed, one of the sad confessions of this book is Hayek's admission that he simply cannot understand why Rawls employs the term "social justice." Rawls employs the term because his theory just is a theory of social justice. Hayek focuses merely on Rawls' view that no theory of distribution can be assumed to hold prior to the original position of the contractors. But this ignores what comes out of the original position for Rawls. Hayek's attachment to Rawls and lack of examination of the apparently antimarket aspects of Rawls' theory can only undermine Hayek's case.
FREEDOM ON THE LINE
But returning to Hayek himself, the question is, Do the criteria for just conduct necessarily support freedom? We said above that aid to particular groups would be excluded by his rules, but consider the following: "As it is the essence of justice that the same principles are universally applied, it requires that government assist particular groups only in conditions in which it is prepared to act on the same principle in all similar circumstances" (emphasis added). Would the foregoing preclude aid to businesses adversely affected by the weather (for example, farmers and Colorado ski lodges)?
Consider this principle: No one shall have the right to retain all of his earnings as long as there are those who make less than X. Doesn't this constitute a principle of distributive justice? Surely no one attacking the notion of social or distributive justice as meaningless would hold such a principle. But here is what Hayek says: "There is no reason why in a free society government should not assure to all protection against severe deprivation in the form of an assured minimum income, or a floor below which nobody need to descend."
In short, the criteria Hayek offers for rules of just conduct do not seem to carry enough moxie to guarantee a free society.
Now Hayek might object that some of the rules we have given above would still not meet a fourth criterion that runs through the book, usually tacitly, "success." Yet we are given no idea of what constitutes social success other than a potentially question-begging one: whatever happens to accord with market principles. There's nothing wrong with an economist, writing as an economist, operating on the assumption that a system that satisfies most people's desires is successful. Hayek is writing as a social and legal theorist, however, and some recognition or discussion of those theories holding differing standards of success should be forthcoming.
One bright spot of this chapter is Hayek's detailed attack on legal positivism, which, he argues, is "simply the ideology of socialism." Also enlightening are his views on H.L.A. Hart, with whom he agrees that there is no necessary connection between morals and laws. But then he goes on to say that legal rules, as opposed to moral rules, are ones where a recognized "procedure of enforcement by an appointed authority ought to apply." I leave it to the reader to puzzle over the meaning of the "ought."
A NEBULOUS CONCEPT
The ninth chapter is exclusively devoted to the question of social, or distributive, justice. Here a number of central points made earlier are repeated with valuable and often brilliant insights. Hayek attacks egalitarianism head on, pointing out that there is no way to maintain universal rules of justice and at the same time have the government manipulate social standing so that all come out equal: "So long as the belief in 'social justice' governs political action, this process must progressively approach nearer and nearer to a totalitarianism system." For social justice presupposes that individuals are ordered what to do as opposed to being allowed to act for their own ends. Moreover, the notion of social justice is so nebulous as to provide almost no help in determining what steps should be taken, even supposing we wanted an egalitarian society. This is one of the reasons Hayek calls social justice a "quasi-religious sentiment."
The key point to keep in mind is that the kind of distributive justice at which socialism aims is incompatible with the rule of law in a free society. In a free society, strangers are accorded the same rights as friends, and many of our actions affect and are affected by people we do not know. The transition from the small group to the Great Society requires a reduction in the number of duties we have towards others: "The great moral adventure on which modern man has embarked when he launched into the Open Society is threatened when he is required to apply to all his fellow men rules which are appropriate only to fellow members of a tribal group."
One of the themes running through the book is that there are two kinds of ethics: tribal ethics and open-society ethics. Although this issue is discussed most fully in the last chapter of the volume, it is appropriate to bring it up here. Hayek sees the great conflict of Western society to be one of tribal ethics versus universal justice.
Tribal ethics demands positive duties such that the lack of well-being of another imposes upon all in the community enforceable obligations to rectify the situation. But universal justice, as we have seen, has minimal content and few positive duties. The open society was "bought at the price of an attenuation of the enforceable duty to aim deliberately at the well being of other members of the same group." Thus our emotions with respect to others' being worse off may be in conflict with the intellectual necessity of recognizing the universal rules of just conduct. This is why it is often so difficult to persuade people of the problems involved with social justice.
Now the notion of tribal ethics has been with libertarians for a long time and is generally useful. Moreover, Hayek's point about the conflict of emotions is an interesting one. Yet in making his case, he seems to subject personal morality (for instance, giving a neighbor a hand when he's down) to certain dark forces in human nature that are an evolutionary by-product of days gone by. While he certainly admits the "usefulness" of this kind of morality, his view nevertheless serves to undermine any legitimacy it might have.
Hayek attaches himself to the dubious thesis of two conflicting moral realms because he does not take seriously the view that the question of coercion is central—the one that sets the basic context in which any other moral claim must function. We need not admit two moral realms if we take the proscription of coercion to be the fundamental principle of social life with which all moral principles must accord. For Hayek, however, there can be no subsisting base, apart from social mores, providing the legitimate context in which other moral rules must operate. Nevertheless, he does draw the right conclusion when he says, "It is one of the greatest weaknesses of our time that we lack the patience and faith to build up voluntary organizations for purposes which we value highly, and immediately ask the government to bring about by coercion…anything that appears as desirable to large numbers."
In the tenth chapter, "The Market Order or Catallaxy," Hayek's intention is to show how the market order operates. Unfortunately, there is a good deal of tedious repetition of points made earlier, with little variation or development. Indeed, such repetition characterizes the last 50 pages of the book (roughly the last two chapters). This would have been a good place to have included some concrete insights, but instead, Hayek remains on the general level of the other chapters. Some highlights do stand out, such as his discussion of the pricing mechanism as an efficient vehicle for the transfer of information. He also draws an interesting distinction between catallactics and economy. The latter is an organization of means in accord with a given set of ends. The market order is, strictly speaking, not an economy but a network of many economies. Hayek thus avoids the use of "economy" for the market order as a whole and uses instead the terms "catallaxy" or "catallactics."
We have already dealt with one of the major themes of the last chapter, namely, tribal ethics. Perhaps the other most central point of this chapter is the actual divisiveness of social justice. Hayek quite brilliantly points out that because social justice requires a command economy the practical political effects come down to social warfare. If your interests and my interests diverge, then in a command economy we become enemies, for our interests depend upon gaining political power. The paradox is that by pursuing my own ends social harmony is served, whereas the pursuit of so-called social ends leads to disruption of order.
Before closing, one question remains to be asked. We have seen that Hayek has an evolutionary theory of law. But what then is the evolutionary status of those "made" laws that Hayek so profoundly attacks? In other words, does Hayek hold a radical evolutionary thesis? If so, he would be forced to admit that current trends are a natural development. If not, then Hayek's theory is at least partially normative and not purely descriptive of social processes. This latter would pose some problems for Hayek's thesis that morality, too, is evolutionary, not to mention his views on what distinguishes morals and law.
One can, in my view, admit the evolutionary thesis on custom and recognize changes or advances in moral thinking without having to posit a position of radical evolution. Moreover, one can admit that laws or moral rules are discovered and not made without having to go the whole evolutionary route. This can be done if one holds that the moral order is a real order of which humans can have knowledge. With the moral order as a real order, not all moral rules will be the products of evolutionary forces. Some will be aspects of new knowledge, making some law of the same character. Such a position, however, does not seem to be Hayek's, leaving us with our question.
Any work, especially one written by a great man such as Hayek, that systematically attacks a pernicious notion like "social justice" deserves both our attention and serious consideration. My reaction toward this particular volume, however, is quite mixed. I find problems with the book on all levels—from the profound to the mundane. The strong thesis that "social justice" is conceptually meaningless has not been shown by Hayek. He nevertheless scores important points against proponents of "social justice." We who are friendly to Hayek's position should remember and use these points, while not forgetting the shortcomings of his thesis.
Mr. Den Uyl is a graduate student in philosophy at Marquette University. He has published in scholarly journals and in REASON and is co-founder of the American Association for the Philosophic Study of Society, an outgrowth of the Equitarian Associates.