- Hayek and liberal dictatorship Matthew McManus, Areo
- Rule of Law: the case of open texture of language and complexity Federico Sosa Valle, NOL
- How the Germans finally caught up with the West Wolfgang Streeck, London Review of Books
- Rebuilding Europe after World War II Barry Stocker, NOL
In a former post, we had explored the idea of considering the law as an abstract machine which provides its users with information about the correct expectancies about human conduct that, if fulfilled, would contribute to the social system inner stability (here). The specific characteristic of the law working as an abstract machine resides in its capability of dealing with an amount of information more complex than human minds. This thesis had been previously stated by Friedrich Hayek in his late work titled “Law, Legislation and Liberty”, aimed to provide the foundations to a proposal of an constitutional reform that would assure the separation of the law from politics -not in the sense of depriving politics from the rule of law, but to protect law from the interference of politics.
Paradoxically, the said opus had many unintended outcomes that surpassed the author’s foresight. One of them was the coinage of the notion of “Spontaneous Order”, which Hayek himself regretted about, because of the misleading sense of the word “spontaneous”. At the foreword of the third volume of the cited “Law, Legislation and Liberty”, he explained why he would prefer to use of the term of “Abstract Order”. Notwithstanding its creator’s allegations, the label of “Spontaneous Order” gained autonomy from him in the realm of the ideas (for example, here).
Why better “abstract order” than “spontaneous”? Because while no “concrete order” might be spontaneous, we could nevertheless find normative systems created by human decision, besides the spontaneous ones (see “Law, Legislation and Liberty”, Chapter V). Moreover, we do not see spontaneous orders whose rules fail to provide stability to the system, because of “evolutionary matters”: such orders could not endure the test of time. Nevertheless, for the same reason, we could imagine a spontaneous order whose rules of conduct became obsolete due to a change in the environment and, thus, fails to enable the social system with the needed stability.
Spontaneity is, thus, not the central characteristic of the law as a complex order. What delimits law from a “concrete order” is the level of abstraction. An alternative name given by Hayek to designate the concrete orders was the Greek term “taxis”, a disposition of soldiers for battle commanded by the single voice of the general. Concrete orders could be fully understood by the human mind and that is why they are regarded as “simple phenomena”: the whole outcome of their rules could be predicted by a system of equations simpler than the human mind.
Notwithstanding a single legislator could sanction a complete set of rules to be followed by the members of a given society, the inner system of decision making of those individuals are more abstract that the said set of rules and, thus, the human interactions will always result in some subset of unintended consequences.
These unintended consequences should not necessarily be regarded as deviations from the social order, but indeed as factors of stabilisation -and, thus, all abstract orders are, in some sense, still spontaneous. These characteristics of the law as a complex order concern on the information about the final configuration of a society given a certain institutional frame: we can establish the whole set of institutions but never fully predict its final outcome. At this stage, we reach what Hayek called in The Sensory Order “an absolute limit to knowledge”.
We now see that the legislator could sanction a complete system of rules -a system that provides solutions for every possible concrete controversy between at least two contenders-, but he is unable to be aware of the full set of consequences of that set of rules. We might ascertain, then, that being enabled with a “negative capability” to anticipate the outcome of the law as a complex phenomenon is a quality to be demanded to a good legislator.
By this “negative capability” we want to designate some understanding of the human nature that allows to anticipate the impact of a given norm among the human interactions. For example, simple statements about human nature such as “people respond to incentives”, or “all powers tend to be abusive”. These notions that are not theoretical but incompletely explained assumptions about human nature are well known in the arts and literature and constitute the undertow of the main narratives that remain mostly inarticulate.
Precisely, as Hayek stated, every abstract order rests upon a series of inarticulate rules, some of which might be discovered and later articulated by the judges, while other rules would remain inarticulate despite being elements of the normative system.
However, we praise Negative Capability as a virtue to be cultivated by the legislator, not by the judge. The function of the judge is to decide about the actual content of the law when applied to a particular case. It is the legislator the one who should foresee the influence to be exerted by the law upon a general pattern of human behaviour.
Notwithstanding Negative Capability could be dismissed in order of not being a scientific concept, this negative attribute is one of its main virtues: it means lack of ideology, in the sense given to that term by Kenneth Minogue. While an ideological political discourse reassures itself in a notion of scientific truth, at least a legislator inspired by common and humble ideas about human nature would be free from that “pretence of knowledge”.
- Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation Charles Tarlton, Journal of Politics
- The asymmetry of European integration, or why the EU cannot be a ‘social market economy’ Fritz Scharpf, Socio-Economic Review
- The past and future of European federalism: Spinelli vs. Hayek Federico Ottavio Reho, Martens Centre
- Secular Nationalism, Islamism, and Making the Arab World Luma Simms, Law & Liberty
This article by Matt McManus (@MattPolProff) recently published at Quillette made me remember H.L.A. Hart’s theory of law and the problems derived from the open texture of language, a concept borrowed by him from Friedrich Waismann, an Austrian Mathematician and philosopher of the Vienna Circle. Many authors would rather distinguish “open texture” from vagueness: being the latter a proper linguistic matter, the former is related to the dynamic of the experience. As Kyle Wallace summarized the problem: “certain expressions are open textured simply because there is always the possibility that in some new experience we may be uncertain whether or not the new expression is applicable.”
However, Brian Bix, in his “H.L.A. Hart and the ‘open texture’ of language,” argues that, despite the concept of “open texture” being a loan from Waismann’s philosophy, the use gave to the term by Hart is not derogatory at all. With respect to Hart’s point of view, the “open texture” of the law is rather an advantage, since it endows the judges with a discretionary power to adjust the text of the law to the changing experience.
Concerning individual liberty, the laudatory qualification of the open texture of the law made by Hart and Bix might be shared by the jurists of the Common Law tradition, but it hardly would be accepted by anyone from the Civil Law System. According to the former, every discretionary power enabled to the judges helps to prevent the political power from menacing individual liberties, while, following the latter, the written word of the law, passed by a legislative assembly according to constitutional proceedings, is the main guarantee of individual rights.
But the subject of the open texture of the language of the law acquires a new dimension when it is related to the coordination problem derived from the limits to knowledge in society. As it was distinguished by F. A. Hayek in the last chapter of Sensory Order, we could talk about two types of limits to knowledge: the relative and the absolute. The relative limit to knowledge depends upon the sharpness of our instruments used to gather information, whereas the absolute limit to knowledge is sealed by the increasing degrees of abstraction that constitute every classification system. Since every new experience demands the rearrangement of the current system of classification we use to order our perception of reality, the description of this feedback process requires a supplementary system of classification of a higher level of complexity. The progress of the subject of knowledge into higher levels of abstraction reaches an unconquerable limit when he is tasked with the full study of himself.
Thus, we could ascertain that the judiciary function would be enough to fulfill the problems that could arise from the open texture of law, since the judge pronounces the content of the law not in general terms, but in concrete definitions in order to solve a case. In this labour, the judge not only applies the positive law, but he might “discover” abstract principles that become relevant in order to the given new experiences that begot the controversy over the content of the law he is due to solve. This function of “immanent critique” of the positive law by the judiciary system is well discussed by F. A. Hayek in the fifth chapter of his Law, Legislation and Liberty. Since the judiciary function solves in every concrete case the coordination problem derived from the fragmentation of knowledge in society, the open texture of the law does not make it opaque to the citizens.
That notwithstanding, the open texture of the law remains as a systemic limit to the legislative assemblies to define the whole content of the law. Thus, since the whole content of the law can only be achieved in a given concrete case by a judge solving a particular controversy, every central planner would have to accomplish his model of society not through decisions based on principles, but on expediency. Central planning and rule of law will be always set to collide. In this sense, the concept of open texture of the law might work as a powerful argument for the impossibility of every central planning to be performed, sooner or later, under the rule of law.
I am continuing from here, where I mainly discussed definitions of liberalism and conservatism. This sequence of posts was inspired by F.A. Hayek’s essay ‘Why I am Not a Conservative’. I am happy to share Hayek’s sentiment that market liberalism is not the same thing as conservatism, but I find some of the argument rather unsatisfactory. What I have concentrated on so far is what I see as the inadequacy of Hayek’s view of conservatism as just a position of slowing down change. What I am getting on to is firstly his view of European liberalism and then of American conservatism.
Hayek’s essay seems to me to contain rather odd claims about the difference between British and continental European liberalism. He suggests:
the majority of Continental liberals stood for ideas to which these men were strongly opposed, and that they were led more by a desire to impose upon the world a preconceived rational pattern than to provide opportunity for free growth. The same is largely true of what has called itself Liberalism in England at least since the time of Lloyd George.
I certainly sympathise with his suggestion that British (unfortunately Hayek makes the common place but still highly incorrect error of substituting England for Britain, particularly absurd here because David Lloyd George was Welsh) liberalism went to much in the direction of top down rationalism (i.e. statism) from about the time of Lloyd George in the early 20th century. It is of interest here that LG (as he was frequently know) split the Liberal Party and was Prime Minster with Conservative support, wishing his faction of the Liberal Party to merge with the Conservative Party, while advocating statism at home and foreign policy adventurism abroad (in Ottoman Anatolia, shortly before it became Turkey), topped by a rather Caesarist personal style.
Returning to the main issue, the sweeping views Hayek indicates of continental liberalism are rather reductive. He equates continental liberalism (or at least a very large part of it) with what comes out of the French Revolution. He can only be thinking of neo-Jacobin currents in France (known as ‘radicals’) and related national-republican currents elsewhere. There is certainly also a history of more individualistic market liberalism on the continent along with what could be called a kind of liberal moderate constitutional royalism.
It would be better, I suggest, to think of continental liberalism as tending to split between the poles of national-republicanism and constitutional royalism. Hayek concedes in this essay that conservatism can be aligned with nationalism, but claims he cannot follow this up because he is not sympathetic enough to nationalism to be able to talk about it. This does not stop him from a more unrestrained attack on the nationalist tendencies of neo-Jacobins, though frequently such people had a desire for a union of European nations. The Italian national-republican and admirer of British liberalism, Giuseppe Mazzini, is a good example.
It seems clear enough that Hayek leans in the conservative direction of the two pole distinction I mention above. We can see this in his list of liberal heroes in the essay: Edmund Burke, Thomas Babington (Lord) Macaulay, Alexis de Tocqueville, David (Lord) Acton, and William Ewart Gladstone. Burke is a hero of conservatism and my last post explains why I think he stands for conservatism rather than liberalism, calling Benjamin Constant as my prime witness.
Macaulay was a Whig Liberal, deeply attached to the landowning classes and the empire, the sort of people who abandoned Gladstone when he started to emphasise the rights of the Irish. Macaulay ought to be read by liberty advocates. He was a great historian and had some admirable pro-liberty sentiments, but we cannot doubt that he leaned towards the conservative imperial state end of liberalism.
Tocqueville is someone popular with conservatives, but then there are also many left leaning Tocqueville admirers. It is part of the character of his writing that there is something for almost anyone. There was certainly an aristocratic and imperial side of his thinking, with strong criticisms of the Jacobins during the French Revolution and after. However, it should also be noted that he was at least happy to work with moderate republicans in French politics, that is those following a toned down Jacobinism and preferred them to the strong royalists. He saw the world as taking a democratic turn, which he thought had some dangerous aspects, but which he said should be followed in a way foreign to Burke and Macaulay.
Acton’s view of liberty leaned strongly in the direction that any restraint on central power was a good thing, to an extent that meant disregarding universal rights. The most famous example of this is his support for the slave states during the American Civil War and his correspondence with Robert E. Lee, which expressed gushing admiration for this prominent Confederate general and slave holder. Acton had some very pertinent things to say about the dangers of democracy, but failed to see that the danger is unrestrained majoritarianism rather than democracy as such, or at least failed to see that democracy constrained by constitutionalism was a better corrective for democratic vices than his attempts to cling onto non-democratic forms of government, or at least very attenuated forms of democracy (as in indirect elections). We can safely place him on the extreme right of the liberty movement.
Gladstone was a friend of Acton and was strongly influenced by him for many years. However, Gladstone, who started off as a High Tory (traditionalist conservative), ended up as a radical promoting home rule for Ireland and Scotland (to the horror of the Whig, that is conservative, Liberals) and extension of the suffrage beyond the property owning classes, who restricted the rights of Irish and Scottish landowners when he saw how they were treating their tenants against natural justice. These measures led him to be condemned as a dangerous socialist at the time, which is of course nonsense. He had an understanding that traditional property rights could become abusive and oppressive over time and that it was the legitimate role of the representative state to use its law making capacity to to challenge such abuse despite the protests of traditional landowners. Though he was influenced by Acton in his view of the US Civil War, he took a rather more national-republican leaning view of the Risorgimento (Italian movement of unification), and his later policies certainly suggest a less Burke-Macaualy-Acton oriented approach.
Hayek’s views of 18th and 19th century liberalism show a strong inclination towards the conservative end of liberalism (even if we assume that we are only concerned with individualistic market based liberalism here) and a very strong reaction against any national-republican elements of liberalism, while evading the issue of conservative-nationalist affinities.
To be continued
The first post in this series concentrates on the more radical authoritarian populist side of conservatism in Europe. Before getting on to American conservatism and other aspects of European conservatism, I will respond to requests in the comments for definitions of what I mean by liberalism and conservatism. The shortest class definition I am aware of is that of David Hume in his essay ‘Of the Parties of Great Britain’ where he suggests that Whigs (liberals) favour liberty with a monarchy and that Tories (conservatives) favour monarchy with liberty. This can be expanded with little, if any controversy, to be taken as: liberals advocate liberty with order; conservatives favour order with liberty.
I will move from Hume to Benjamin Constant in Principles of Politics Applicable to all Governments. Constant is surely an unimpeachable source on what it is to be a classical liberal and it is important to note that Constant thinks there is something different in a politics based on principles of freedom than the thought of Edmund Burke. The distinction Constant makes is key to thinking about the relation between classical liberalism and conservatism, so is key to the claim that I make that (classical) liberalism are very distinct.
To increase the force of collective authority is never other than giving more power to some individuals. If the wickedness of men [an emphasis on this is a mark of conservative thinking], it is an even stronger one against power. For despotism is only the freedom of one or a few against the rest. Burke says that freedom is power. One can likewise say that power is freedom.(Book XV, Chapter 2)
This thought flows right into this thought from a later chapter:
Freedom is a power only in the sense that a shield is a weapon. So that when one speaks of possible abuses of the principle of freedom, such an expression is inaccurate. The principles of freedom would have prevented anything under the heading of abuses of freedom. These abuses, whoever their author, taking place always at the expense of another’s freedom, have never been the consequence of these principles, but rather their reversal. (Book XVII. Chapter 1)
In my summary of the above: conservatism defines freedom as limited because of a dangerous power in excess, so requiring tradition, hierarchy, and the aggressive use of state sovereignty to to curb it, while liberalism suggests that more freedom is the answer to abuses of power.
Since Burke is a key figure for those advocating some kind of kind of intimate alliance, or even identity, between (classical) liberalism and conservatism or libertarian conservative fusionism, Constant’s criticism of Burke is important. I won’t get into the detail of Reflections on the Revolution in France, Burke’s central text on politics here, I will just note that the reader of this classic of conservatism will find many passages on the absolute sovereignty of the state, the virtues of rigid social hierarchy and of traditions supporting such hierarchy, along with the perfection of the British constitution of the time.
These passages, it seems to me, should raise concern to the advocate of liberty, which I believe derives its energy from the criticism of tradition, hierarchy, and existing institutions. As Constant recognises, we should not be quick to replace institutions that have grown over centuries with a perfect new design, but we should certainly not be afraid to innovate either, as we should not be slow to notice the growing faults of institutions over time as they come into conflict with new circumstances.
Burke was perhaps a bit more liberty-minded and a bit more innovation-friendly than the other famous critics of liberalism and Jacobinism – de Maistre, de Bonald and Donoso Cortés, but the understanding of liberty as particular Liberties inherited from tradition, upheld by a state that insists on its own absolute authority is something he has in common with them. For Constant, the excesses of the French Revolution are a reason to argue for more liberty, for Burke they are a reason to uphold hierarchy, tradition, and royal authority along with endless war against the French.
While addressing comments to the last post, I should refer to my fellow Notewriter, Edwin van de Haar, though thinking just as much of a previous social media conversation as his recent comment. As far as I understand, he advocates a definition of conservative liberalism that corresponds with F.A. Hayek’s views in The Constitution of Liberty and a share of GDP devoted to public spending substantially below the the average in advanced industrial countries. I’m not aware of anywhere in which Hayek used such a term, though he was certainly more sympathetic to Burke than I am here.
My argument is that there is nothing inherent to conservatism that makes it opposed to expanding the state in terms of welfare intervention or in terms of the police power of the state. Otto von Bismarck is just one particularly notable conservative from history who had a great belief in an intrusive state in various ways, including measures designed to take voters away from the strong Marxist-socialist current of the time, through incorporating socialist-friendly policies. Conservatism is a doctrine of order, state power (where national or imperial), and tradition.
Where conservatives have favoured market-friendly and relatively small state polices, they have done so in order to preserve order, the core of state power and tradition. Economically liberal conservatives like Margaret Thatcher and Ronald Reagan were also great believers in narratives of restored national grandeur, the security state, ‘law and order’ and ‘war on drugs’ polices expanding state power, while sucking an increasing number of people into the extreme state-socialist institution of prison.
As far as I can see Thatcher and Reagan are the heroes of ‘liberal conservatism’. With all due respect to their valuable economic reforms, the liberalism seems to me to be very subordinate to the conservatism. As I pointed out in the last post, ideas of aggressive populism are growing in the conservative world, ideas which have deep precedents in the ways that Bismarck figures have mobilised nationalism, statism, and reactionary identity politics against liberals.
I was very fortunate to learn that my essay ‘Markets for rules‘ has won the Mont Pelerin Society’s 2018 Hayek essay competition for young scholars (one of the perks of academia is being defined as young well until your 30s). I am now looking forward to presenting at MPS’s famous conference, originally organised by F.A. Hayek to build the post-war intellectual case for liberalism.
The essay is an attempt to explain the governance possibilities of blockchain technology through the lens of new institutional economics and more specifically private governance. Blockchains allow people to develop rules that can then enforced autonomously by the participants that use them without further central direction. This could allow communities to rely more on common rules and less on formal coercive authorities to achieve widespread social cooperation. I am cautiously optimistic about the technology (it could also turn into a dystopian nightmare) though not any particular currently existing blockchain.
Here is the abstract: Classical liberals seek the paradoxical: government powerful enough to protect individuals from preying off each other, but limited enough to prevent it becoming a fierce predator itself. The emergence of blockchain technology heralds a potential revolution in our collective capacity to implement limited government. Blockchains offer a more secure and transparent way of implementing rules while permitting individual choice between rulesets that can co-exist at the same time and place. What this could ultimately mean is that a great deal of what we have traditionally conceived to be governance might be disintermediated from the territorially defined monopolistic coercive authorities that classically define states.