I go back and forth on whether there’s a valuable core to this book, or whether the whole thing is as objectionable as its worst parts. Partly the answer will depend upon whether the book is a prolonged shaggy-dog story, whose useless punchline is something to do with price controls.
Giving the man his due: he uses the word “constitution” advisedly. A constitution isn’t just a set of laws; it’s an outline of the basic structure of a society. It tells us where the government cannot go; it defines a sphere of liberty around each citizen. So if we were building a government that maximally honored the dignity of each citizen, how would we constrain that government?
Among the first constraints we’d impose is the rule of law: when the legislature makes a law, it doesn’t know the specific people upon whom that law will be enforced. In that sense, laws cannot be arbitrary; they must apply to everyone equally. To enforce this impartiality, the people who execute the laws, and those who decide whether laws are constitutional, must be separate from those who write the laws. The legislature writes the laws; the executive branch enforces them; the courts measure legislation for conformity with the capital-L Law.
A world in which the laws are non-arbitrary is a world in which people can make plans. There will still be arbitrariness—a tornado can still flatten your house—but at least there’s order in this corner of the world.
But wait. There are lots of terrible laws which nonetheless allow people to make plans. What if the law says that it’s illegal to be Jewish, or to marry someone whose gender is the same as yours? Those are non-arbitrary, in the sense that they don’t single out anyone in particular. You can certainly plan around that sort of law: just stop practicing Judaism, or leave the country, or marry someone you don’t love. Simple! But surely we would consider such laws unjust. How does Hayek feel about such laws? The answer seems to be: not so bad. Witness:
The enforcement of religious conformity, for instance, was a legitimate object of government when people believed in the collective responsibility of the community toward some deity and it was thought that the sins of any member would be visited upon all. But where private practices cannot affect anybody but the voluntary adult actors, the mere dislike of what is being done by others, or even the knowledge that others harm themselves by what they do, provides no legitimate ground for coercion.
So he seems to have no problem with laws that are non-arbitrary in this sense, so long as they pursue an end that, in some broad sense, is reasonable in that time and place.
We might grant him this, because the reason he goes into great detail about his definition of the rule of law is that he wants to show how broad a definition it is. It should be easy, implies Hayek, to adhere to the rule of law, and yet—by his lights—much modern economic policy is a violation of the rule of law.
This is probably granting him too much, though. I want to interpret him as defending a certain narrow definition of the rule of law, and a narrow definition of coercion, purely for the sake of argument, which would then allow him to show that something which we all object to is a violation of even this narrow idea of coercion. If he were doing that, we’d expect him to say something like “Surely it’s bad if people are coerced in lots of different ways. But let’s assume for the sake of argument that ‘coercion’ just means a monopolistic power, like a government, forcing you to carry out its will rather than your own. This is the least we can expect out of a definition of coercion. Obviously the definition of coercion I actually believe in is much more expansive than that, but follow along with me.” Hayek gives us no reason to believe that he would prefer a broader definition. Witness:
Provided that I know beforehand that if I place myself in a particular position, I shall be coerced and provided that I can avoid putting myself in such a position, I need never be coerced. At least insofar as the rules providing for coercion are not aimed at me personally but are so framed as to apply equally to all people in similar circumstances, they are no different from any of the natural obstacles that affect my plans.
He’s defining coercion this narrowly because it’s the only kind of coercion that concerns him. Yet it immediately invites a lot of questions that, so far as I can tell, he never answers. If I can’t enter a given neighborhood because it’s dominated by mobsters who demand a bribe in exchange for keeping my kneecaps intact, is that coercion? After all, I can choose to not live in that neighborhood. One version of Hayek’s argument says that that is coercion:
True coercion occurs when armed bands of conquerors make the subject people toil for them, when organized gangsters extort a levy for “protection”
I can leave, though; so why is this not coercion, by his “Provided that I know beforehand” idea above?
Likewise, the sexual coercion of a boss over his subordinates wouldn’t concern him, because the only sort of coercion he’ll admit is that of a monopolist in a strict sense:
The individual provider of employment cannot normally exercise coercion, any more than can the supplier of a particular commodity or service. So long as he can remove only one opportunity among many to earn a living, so long as he can do no more than cease to pay certain people who cannot hope to earn as much elsewhere as they had done under him, he cannot coerce, though he may cause pain.
If you don’t like your boss’s advances, why don’t you just quit? Here Hayek gives us the “notably rare exceptions” of employment law:
in a competitive society the employed is not at the mercy of a particular employer, except in periods of extensive unemployment.
The argument is incoherent. The problem lying at the root of this incoherence is that Hayek contorts himself to define “coercion” as exactly—and only—the narrow type of coercion that he cares about:
In the sense in which we use the term, the penniless vagabond who lives precariously by constant improvisation is indeed freer than the conscripted soldier with all his security and relative comfort. But if liberty may therefore not always seem preferable to other goods, it is a distinctive good that needs a distinctive name.
The final sentence here tries to give him an out, namely: yes, maybe other sorts of coercion are problematic, but let’s just keep our types of coercion separate. Yet nowhere in The Constitution of Liberty does Hayek come back around to opposing these other sorts of coercion. They just don’t concern him.
But let’s ride along with him for a bit about the sort of coercion, and the sort of rule-of-law, that he cares about. If the goal is just to have laws that are exercised uniformly against all people, and to allow people to make plans, then a lot of the modern welfare state seems to be admissible. For instance, why not establish a guaranteed minimum income? To quote Hayek:
There is then the important issue of security, of protection against risks common to all, where government can often either reduce these risks or assist people to provide against them. Here, however, an important distinction has to be drawn between two conceptions of security: a limited security which can be achieved for all and which is, therefore, no privilege, and absolute security, which in a free society cannot be achieved for all. The first of these is security against severe physical privation, the assurance of a given minimum of sustenance for all; and the second is the assurance of a given standard of life, which is determined by comparing the standard enjoyed by a person or a group with that of others. The distinction, then, is that between the security of an equal minimum income for all and the security of a particular income that a person is thought to deserve.
This seems to say that he’d be perfectly okay with a Universal Basic Income. We view him as the arch-conservative, and in many ways he is, but by modern lights many of his views would count as very left-wing.
Much of the time I don’t understand which left-wing bogeyman he’s setting himself up against. What is “the security of a particular income that a person is thought to deserve”, for instance? Is there some version of the welfare state in which we each are given a specific allotment based on various details of our lives? Even if so, on what grounds could Hayek object? Suppose we pass a law according to which African-Americans, specifically, are entitled to tens of thousands of dollars off their taxes every year as reparations for centuries of bondage? Which principle of Hayek’s would this violate? Surely it allows people to make plans; it treats people as classes, not as individuals, so it seems consistent with the rule of law. Yet I get the sense that Hayek would oppose it.
I can only really say that I “get the sense” here, because Hayek’s engagement with facts on the ground is fairly limited. The final third of the book is a grab-bag of attacks on various parts of the regulatory state, taking as its foundation the fundamental theoretical attack from the book’s first third. The final third is where, for instance, he attacks something so fundamental as progressive taxation. (See the big chunk starting on page 431.) Here he sets himself against virtually everyone, including the sainted Adam Smith:
The necessaries of life occasion the great expense of the poor. They find it difficult to get food, and the greater part of their little revenue is spent in getting it. The luxuries and vanities of life occasion the principal expense of the rich; and a magnificent house embellishes and sets off to the best advantage all the other luxuries and vanities which they possess. A tax upon house-rents, therefore, would in general fall heaviest upon the rich; and in this sort of inequality there would not, perhaps, be any thing very unreasonable. It is not very unreasonable that the rich should contribute to the public expense, not only in proportion to their revenue, but something more than in that proportion.
At root, he opposes progressive taxation mostly because much of the welfare state, by his lights, is driven by envy:
When we inquire into the justification of these demands, we find that they rest on the discontent that the success of some people often produces in those that are less successful, or, to put it bluntly, on envy. The modern tendency to gratify this passion and to disguise it in the respectable garment of social justice is developing into a serious threat to freedom.
That’s why the book feels mostly incoherent: the first third lays down a moderately respectable portrait of what his ideal government would look like, and then the second and final thirds try to pretend that they’re logical consequences of the first third. But they’re not. He opposes the welfare state for reasons that seemingly have little to do with any claim that it violates the rule of law.
I could get into much of the rest of the book—for instance, Hayek’s claim that modern welfare-state liberalism (as opposed to classical Adam Smith-style liberalism) mostly derives from the French Revolution, and has thereby proven wrong in every particular—but it hardly seems worth the effort. He uses this patient logical apparatus to set up a series of straw men. If the welfare state doesn’t aim to make every citizen happy, and instead just tries to get rid of egregious suffering, Hayek has nothing to say. Hayek’s grand pronouncements, like these, fall flat:
The proper answer is that in a free system it is neither desirable nor practicable that material rewards should be made generally to correspond to what men recognize as merit
Perhaps he’s right. But it hardly seems to matter. Suppose I’m born into this world to impoverished parents, without access to quality education and nourishing food. Suppose my home is crawling with roaches, and cold air blows in through visible cracks between the floorboards. Do we as a society have an obligation to do something about that? Must the child suffer just because she was born into these conditions?
Mostly I think Hayek would say yes. To the extent that he would say no, it’s because he’s arguing with a non-existent version of the welfare state. I just don’t see the point.
I’d like to get Hayek and Popper in a room together. They might agree on a lot. They might even agree on method: both were adamantly against social engineering, and Popper wanted to bring science to his social engineering: solve a problem at the smallest scale possible; observe the results; change your methods; scale up to a larger social unit; repeat. I’m just not sure about the moral core within either Hayek or Popper. Would either man describe his motivations the way Russell did?
Three passions, simple but overwhelmingly strong, have governed my life: the longing for love, the search for knowledge, and unbearable pity for the suffering of mankind.
I’d have an easier time stomaching Hayek if I felt as though, back of his cold libertarian theorizing, there were the beating heart of a human.