What is this thing Hayek called "the rule of law"?
LATE last week, New York Times reporter Kate Zernike noted that many tea partiers, often at Glenn Beck's urging, have availed themselves of several classic texts, including F.A. Hayek's 1943 blockbuster "The Road to Serfdom"—surely one of the most influential political tracts of the last century. Ms Zernike, however, appears somewhat out of her element handling this sort of exotica. She writes:
Perhaps Ms Zernike missed the chapter titled "Planning and the Rule of Law" as she read "The Road to Serfdom" in preparation for this article. There, Hayek draws out the difference between "a free country" and "a country under arbitrary government". A country counts as free only if its government is bound by the rule of law, which, according to Hayek, "means that government in all its actions is bound by rules fixed and announced beforehand". Typically, these rules, once fixed, are written down and then published through official state organs. The idea is that politically-determined rules need to be relatively fixed and publicly known in order to create a stable and certain framework in which individual planning and complex social coordination can flourish. The goal of replacing arbitrary government with the rule of law implies for Hayek, among other things, that executive discretion ought to be reduced "as much as possible".
As far as I can tell, Ron Johnson, the Republican Senate candidate from Wisconsin, hit the nail on the head when he identified the Obama administration's demand that BP set up an escrow fund as an instance of arbitrary government at odds with the rule of law. The issue here is not whether requiring such an account was a good idea. It probably was. The question is whether the executive branch, in issuing this demand, acted according to general legal rules already in place, or if it ignored established procedure and simply exercised power without prior authorization in a manner unconstrained by known rules. One can ask similar questions about the Wall Street bail-outs, the partial nationalization of General Motors, and the growing list of new executive powers claimed under the Bush and Obama administrations.
I should add that the rule of law, as Hayek understands it, does not, as Ms Zernike writes, prohibit government from interfering with the pursuit of personal ends and desires. The idea certainly is to maximise the chance that individuals and groups will be able to achieve their goals, but this requires some constraints on the way goals are pursued. For Hayek, the rule of law means that these constraining rules must not play favourites, but rather must embody ideals of impartiality, generality, and equality before the law. Hayek's proposal for a generality or non-discrimination amendment to the constitution (defended here by James Buchanan) nicely illustrates what he took to be the practical upshot of his ideal of the rule of law.
Of course, none of this is to say that Hayek's new tea-party fans generally care much or at all about his conception of the rule of law. If only! Mostly they have fixed on the least impressive part in all of Hayek's impressive oeuvre. In the age of Hitler, Stalin, and Mussolini, it was profoundly wise to vigilantly stand guard against any possible slide into collectivist totalitarianism. But now, almost 70 years later, it is abundantly clear that the prevailing sort of liberal-democratic welfare state has no general tendency toward tyranny. David Frum is right: we are not on the road to serfdom. Indeed, that the New York Times finds it necessary to write about the influence of Hayek's ideas at all strikes this Hayekian as a hopeful sign.
LATE last week, New York Times reporter Kate Zernike noted that many tea partiers, often at Glenn Beck's urging, have availed themselves of several classic texts, including F.A. Hayek's 1943 blockbuster "The Road to Serfdom"—surely one of the most influential political tracts of the last century. Ms Zernike, however, appears somewhat out of her element handling this sort of exotica. She writes:
Representative Paul D. Ryan, Republican of Wisconsin, alluded to “The Road to Serfdom” in introducing his economic “Roadmap for America’s Future,” which many other Republicans have embraced. Ron Johnson, who entered politics through a Tea Party meeting and is now the Republican nominee for Senate in Wisconsin, asserted that the $20 billion escrow fund that the Obama administration forced BP to set up to pay damages from the Gulf of Mexico oil spill circumvented “the rule of law,” Hayek’s term for the unwritten code that prohibits the government from interfering with the pursuit of “personal ends and desires.”
It's the last sentence that has me in stitches. Have you heard of this peculiar thing some call "the rule of law"? To be fair, Mr Hayek did eventually develop a distinctive conception of the rule of law, but it's not that distinctive, and the idea of "an unwritten code" certainly isn't part of it. Mr Hayek's late-period thought on cultural evolution did emphasise the heavy reliance of successful societies on unwritten and often inarticulable norms of behaviour, and our culture's will to uphold the ideals of the rule of law flows in large part from our unwrittern cultural endowment, but the idea of an unwritten code is pretty much the opposite of what Hayek had in mind when it came to the rule of law.Perhaps Ms Zernike missed the chapter titled "Planning and the Rule of Law" as she read "The Road to Serfdom" in preparation for this article. There, Hayek draws out the difference between "a free country" and "a country under arbitrary government". A country counts as free only if its government is bound by the rule of law, which, according to Hayek, "means that government in all its actions is bound by rules fixed and announced beforehand". Typically, these rules, once fixed, are written down and then published through official state organs. The idea is that politically-determined rules need to be relatively fixed and publicly known in order to create a stable and certain framework in which individual planning and complex social coordination can flourish. The goal of replacing arbitrary government with the rule of law implies for Hayek, among other things, that executive discretion ought to be reduced "as much as possible".
As far as I can tell, Ron Johnson, the Republican Senate candidate from Wisconsin, hit the nail on the head when he identified the Obama administration's demand that BP set up an escrow fund as an instance of arbitrary government at odds with the rule of law. The issue here is not whether requiring such an account was a good idea. It probably was. The question is whether the executive branch, in issuing this demand, acted according to general legal rules already in place, or if it ignored established procedure and simply exercised power without prior authorization in a manner unconstrained by known rules. One can ask similar questions about the Wall Street bail-outs, the partial nationalization of General Motors, and the growing list of new executive powers claimed under the Bush and Obama administrations.
I should add that the rule of law, as Hayek understands it, does not, as Ms Zernike writes, prohibit government from interfering with the pursuit of personal ends and desires. The idea certainly is to maximise the chance that individuals and groups will be able to achieve their goals, but this requires some constraints on the way goals are pursued. For Hayek, the rule of law means that these constraining rules must not play favourites, but rather must embody ideals of impartiality, generality, and equality before the law. Hayek's proposal for a generality or non-discrimination amendment to the constitution (defended here by James Buchanan) nicely illustrates what he took to be the practical upshot of his ideal of the rule of law.
Of course, none of this is to say that Hayek's new tea-party fans generally care much or at all about his conception of the rule of law. If only! Mostly they have fixed on the least impressive part in all of Hayek's impressive oeuvre. In the age of Hitler, Stalin, and Mussolini, it was profoundly wise to vigilantly stand guard against any possible slide into collectivist totalitarianism. But now, almost 70 years later, it is abundantly clear that the prevailing sort of liberal-democratic welfare state has no general tendency toward tyranny. David Frum is right: we are not on the road to serfdom. Indeed, that the New York Times finds it necessary to write about the influence of Hayek's ideas at all strikes this Hayekian as a hopeful sign.