Friedrich Von Hayek – Law, Legislation and Liberty (1998).Pdf Uploaded Successfully

t of e ofj “cc L AW, LEGISLATION AND LIBERTY This is Hayek’s major statement of political philosophy. Rejecting Marx, Freud, logical positivism and political egalitarianism, Hayek shows that the naive application of scientific methods to culture and education has been harmful and misleading, creating superstition and error rather than an age of reason and culture. Law, Legislation and Liberty combines all three volumes of Hayek’s comprehensive study on the basic principles of the political order of a free society.

Rules and Order deals with the basic conceptions necessary for a critical analysis of prevailing theories of justice and of conditions which a constitution securing personal liberty would have to satisfy. The Mirage of Social Justice presents a critical analysis of the theories of utilitarianism, legal positivism and ‘social justice’. The Political Order of a Free People demonstrates that the democratic ideal is in danger of miscarrying due to confusions of egalitarianism and democracy, erroneous assumptions that there can be moral standards without moral discipline, and that tradition can be ignored in proposals for restructuring society.

F. A. Hayek became both a Doctor of Law and a Doctor of Political Science at the University of Vienna. He was made the first Director of the Austrian Institute of Economic Research and in 1931 was appointed to a chair at the London School of Economics. In 1950 he went to the University of Chicago as Professor of Social and Moral Sciences and then became Professor of Economics at the Albert-Ludwigs-Universitat of Frieburg and Professor Emeritus in 1967. He was also a Fellow of the British Academy and was awarded a Nobel Memorial Prize in Economics in 1974. Hayek died in 1992. L AW, LEGISLATION AND LIBERTY

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International Ltd, Padstow, Cornwall All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 0-415-09868-8 C ONTENTS Volume 1 RULES AND ORDER xv CONSOLIDATED PREFACE INTRODUCTION 8 REASON AND EVOLUTION Construction and evolution

The tenets of Cartesian rationalism The permanent limitations of our factual knowledge Factual knowledge and science The concurrent evolution of mind and society: the role of rules The false dichotomy of ‘natural’ and ‘artificial’ The rise of the evolutionary approach The persistence of constructivism in current thought Our anthropomorphic language Reason and abstraction Why the extreme forms of constructivist rationalism regularly lead to a revolt against reason 2 8 9 11 15 17 20 22 24 26 29 31 COSMOS AND TAXIS 35 The concept of order The two sources of order The distinguishing properties of spontaneous orders Spontaneous orders in nature

In society, reliance on spontaneous order both extends and limits our powers of control Spontaneous orders result from their elements obeying certain rules of conduct The spontaneous order of society is made up of individuals and organizations 35 36 38 39 v 41 43 46 C ONTENTS The rules of spon taneous orders and the rules of organization The terms ‘organism’ and ‘organization’ 5 55 55 67 THE CHANGING CONCEPT OF LAW 72 Law is older than legislation The lessons of ethology and cultural anthropology The process 0. [ articulation of practices Factual and normative rules Early law The classical and the medieval tradition

The distinctive attributes of law arising from custom and precedent Why grown law requires correction by legislation The origin of legislative bodies Allegiance and sovereignty 4 PRINCIPLES AND EXPEDIENCY Individual aims and collective benefits Freedom can be preserved only by following principles and is destroyed by following expediency The ‘necessities’ of policy are generally the consequences of earlier measures The danger ofattaching greater importance to the predictable rather than to the merely possibleconsequences ofour actions Spurious realisln and the required courage to consider utopia The role of the lawyer in political evolution

The modern development of law has been guided largely by false economics 3 48 52 72 74 76 78 81 82 85 88 89 91 NOMOS: THE LAW OF LIBERTY 94 The functions of the judge How the task of the judge differs fro In that of the head of an organization The aiJn of jurisdiction is the Inaintenance of an ongoing order of actions ‘Actions towards others’ and the protection ofexpectations 94 vi 56 59 61 62 65 97 98 101 C ONTENTS In a dynamic order of actions only some expectations can be protected The maximal coincidence of expectations is achieved by the deli/nitation of protected domains The general problem of the effects of values on facts

The ‘purpose’ of law The articulations of the law and the predictability of judicial decisions Thefunction ofthejudge is confined to a spontaneous order Conclusions 6 THESIS: THE LAW OF LEGISLATION Legislation originates from the necessity of establishing rules of organization Law and statute-the enforcement of law and the execution of commands Legislation and the theory of the separation of powers The governmental functions of representative asselnblies Private law and public law Constitutional law Financial legislation Administrative law and the police power The ‘In easures , of policy

The transformation of private law into public law by ‘social’legislation The Inental bias ofa legislature preoccupied with governlnent 102 106 110 112 115 118 122 124 124 126 128 129 131 134 136 137 139 141 143 145 NOTES vii C ONTENTS Volume 2 THE MIRAGE OF SOCIAL JUSTICE 7 GENERAL WELFARE AND PARTICULAR PURPOSES In a free society the general good consists principally in the facilities for the pursuit of unknown purposes The general interest and collective goods Rules and ignorance The significance of abstract rules in a world in which most of the particulars are unknown Will and opinion, ends and values, commands and rules, nd other terminological issues Abstract rules operate as ultimate values because they serve unknown particular ends The constructivist fallacy of utilitarianism All valid criticism or improvement of rules of conduct must proceed within a given system of rules ‘Generalization’ and the test of universalizabiiity To perform their functions rules must be applied throughout the long run 8 29 THE QUEST FOR JUSTICE 31 Justice is an attribute of human conduct Justice and the law Rules of just conduct are generally prohibitions of unjust conduct Not only the rules ofjust conduct, but also the test of their justice, are negative

The significance of the negative character of the test of injustice The ideology of legal positivism The ‘pure theory of law’ 31 34 viii 1 6 8 11 12 15 17 24 27 35 38 42 44 48 C ONTENTS Law and morals The ‘law of nature’ Law and sovereignty 9 56 61 ‘SOCIAL’ OR DISTRIBUTIVE JUSTICE 62 59 The concept of ‘social justice’ The conquest of public imagination by ‘social justice’ The inapplicability of the concept ofjustice to the results of a spontaneous process The rationale of the economic game in which only the conduct of the players but not the result can be just The alleged necessity of a belief in the justice of rewards

There is no ‘value to society’ The meaning of ‘social’ ‘Social justice’ and equality ‘Equality of opportunity’ ‘Social justice’ and freedom under the law The spatial range of ‘social justice’ Claims for compensation for distasteful jobs The resentment of the loss of accustomed positions Conclusions APPENDIX TO CHAPTER 9 62 65 67 70 73 75 78 80 84 85 88 91 93 96 JUSTICE AND 101 INDIVIDUAL RIGHTS lOT HEM ARK E TOR DE R 0 RCA TAL L A X Y The nature of the market order A free society is a pluralistic society without a common hierarchy of ends Though not asingle economy, the Great Society is still held ogether by what vulgarly are called economic relations The aim of policy in a society offree men cannot be a maximum offoreknown results but only an abstract order The game of catallaxy In judging the adaptations to changing circumstances comparisons of the new with the former position are irrelevant ix 107 107 109 112 114 115 120 C ONTENTS Rules of just conduct protect only material domains and not market values The correspondence of expectations is brought about by a disappointment of some expectations Abstract rules of conduct can determine only chances and not particular results Specific comlnands (‘interference’) in a catallaxy create isorder and can never be just The aim of law should be to improve equally the chances of all The Good Society is one in which the chances of anyone selected at random are likely to be as great as possible 11 123 124 126 128 129 132 THE DISCIPLINE OF ABSTRACT RULES AND THE EMOTIONS OF THE TRIBAL SOCIETY 133 The pursuit of unattainable goals may prevent the achievement of the possible The causes of the revival of the organizational thinking of the tribe The immoral consequences of morally inspired efforts In the Great Society ‘social justice’ becomes a disruptive force From the care of the most unfortunate to the protection f vested interests Attempts to ‘correct’ the order of the market lead to its destruction The revolt against the discipline of abstract rules The morals of the open and of the closed society The old conflict between loyalty and justice The small group in the Open Society The importance of voluntary associations 149 150 NOTES 153 x 133 134 135 137 139 142 143 144 147 C ONTENTS Volume 3 THE POLITICAL ORDER OF A FREE PEOPLE 12 MAJORITY OPINION AND CONTEMPORARY DEMOCRACY The progressive disillusionment about democracy Unlimited power the fatal effect of the prevailing form of democracy The true content of the democratic ideal

The weakness of an elective assembly with unlimited 3 5 8 powe~ Coalitions of organized interests and the apparatus of para-government Agreement on general rules and on particular measures 13 13 17 THE DIVISION OF DEMOCRATIC POWERS 20 The loss of the original conception of the functions of a legislature Existing representative institutions have been shaped by the needs of government, not of legislation Bodies with powers of specific direction are unsuitedfor law-making The character of existing ‘legislatures’ determined by their governmental tasks Party legislation leads to the decay of democratic society

The constructivistic superstition of sovereignty The requisite division of the powers of represen tative assemblies Democracy or demarchy? xi 20 22 25 27 31 33 35 38 C ONTENTS 14 THE PUBLIC SECTOR AND THE PRIVATE SECTOR The double task of government Collective goods The delimitation of the public sector The independent sector Taxation and the size of the public sector Security Government monopoly of services Information and education Other critical issues 15 41 41 43 46 49 51 54 56 60 62 GOVERNMENT POLICY AND THE MARKET 65 The advantages of competition do not depend on it being ‘perfect’ Competition as a discovery procedure

If the factual requirements of ‘perfect’ competition are absent, it is not possible to makefirms act ‘as if’ it existed The achievemen ts of the free market Competition and rationality Size, concentration and power The political aspects of economic power When monopoly becomes harmful The problem of anti-monopoly legislation Not individual, but group selfishness is the chief threat The consequences of a political determination of the incomes of the different groups Organizable and non-organizable interests 16 65 67 70 74 75 77 80 83 85 89 93 96 THE MISCARRIAGE OF THE DEMOCRATIC IDEAL: A RECAPITUALATION The miscarriage of the democratic ideal

A ‘bargaining’ democracy The playball of group interests Laws versus directions Laws and arbitrary government Froln unequal treatment to arbitrariness Separation of powers to prevent unlimited governlnent xii 98 98 99 99 100 101 102 104 C ONTENTS 17 105 The wrong turn taken by the development ofrepresentative institutions The value of a model of an ideal constitution The basic principles The two representative bodies with distinctive functions Further observations on representation by age groups The governmental assembly The constitutional court The general structure of authority Emergency powers The division offinancial powers 8 A MODEL CONSTITUTION 105 107 109 111 117 119 120 122 124 126 THE CONTAINMENT OF POWER AND THE DETH RONEM ENT OF POL ITICS 128 Lilnited and unlimited power Peace, freedom and justice: the three great negatives Centralization and decentralization The rule of the Inajority versus the rule of laws approved by the majority Moral confusion and the decay of language Democratic procedure and egalitarian objectives ‘State’ and ‘society’ A game according to rules can never know justice of treatment The para-government of organized interests and the hypertrophy of go vern men t Unlimited democracy and centralization

The devolution of internal policy to local government The abolition of the government monopoly of services The dethronement ofpolitics 128 130 132 133 135 137 139 141 143 145 146 147 149 EPILOGUE: THE THREE SOURCES OF HUMAN VALUES 153 The errors of sociobiology The process of cultural evolution The evolution of self-maintaining complex systems The stratification of rules of conduct 153 155 158 159 xiii C ONTENTS Customary rules and economic order The discipline offreedom The re-emergence of suppressed primordial instincts Evolution, tradition and progress The construction of new morals to serve old instincts: A1arx

The destruction ofindispensable values by scientific error: Freud The tables turned 161 163 165 168 169 173 175 177 NOTES I N DE X 0 F AUT H 0 R SCI TED I N VOL U M E S SUBJECT INDEX TO VOLUMES xiv 1-3 1- 3 209 217 C ONSOLIDATED PREFACE TO ONE-VOLUME EDITION At last this work can appear in the form it was intended to take when I started on it nearly twenty years ago. Half way through this period, when a first draft was nearly completed, a weakening of my powers, which fortunately proved to be temporary, made me doubt whether I should ever be able to complete it and led me to publish in 1973 a fully completed part of what were to become three eparate volumes. When a year later I found my powers returning I discovered that various circumstances made substantial revisions necessary of even those further parts of the draft which I had thought to be in fairly finished state. As I explained in the preface to the second volume, which appeared in 1976, the chief reason was my dissatisfaction with that central chapter which gave that volume its sub-title The Mirage of Social Justice. This account] had better repeat here: I had devoted to this subject an enormous chapter in which I had tried to show for a large number of instances that what as claimed as demanded by ‘social justice’ could not be justice because the underlying consideration (one could hardly call it a principle) was not capable of general application. The point I was then mainly anxious to demonstrate was that people would never be able to agree on what ‘social justice’ required, and that any attempt to determine remunerations according to what it was thought was demanded by justice would make the market unworkable. I have now become convinced, however, that the people who habitually employ the phrase simply do not know themselves what they mean by t and just use it as an assertion that a claim is justified ‘without giving a reason for it. In my earlier efforts to criticize the concept I had all the time the feeling that I was hitting into a void and I finally attempted, what in such cases one ought to do in the first xv P REFACE instance, to construct as good a case in support of the ideal of ‘social justice’ as was in my power. It was only then that I perceived that the Emperor had no clothes on, that is, that the term ‘social justice’ was entirely empty and meaningless. As the boy in Hans Christian Andersen’s story, I ‘could not see anything, because there was nothing to be seen. The more I tried to give it a definite meaning the more it fell apart-the intuitive feeling of indignation which we undeniably often experience in particular instances proved incapable of being justified by a general rule such as the conception of justice demands. But to demonstrate that a universally used expression which to many people embodies a quasi-religious belief has no content whatever and serves merely to insinuate that we ought to consent to a demand of some particular group is much more difficult than to show that a conception is wrong.

In these circumstances I could not content myself to show that particular attempts to achieve ‘social justice’ would not work, but had to explain that the phrase meant nothing at all, and that to employ it was either thoughtless or fraudulent. It is not pleasant to have to argue against a superstition which is held most strongly by men and women who are often regarded as the best in our society, and against a belief that has become almost the new religion of our time (and in which many of the ministers of old religion have found their refuge), and which has become the recognized mark of the good man.

But the present universality of that belief proves no more the reality of its object than did the universal belief in witches or the philosopher’s stone. Nor does the long history of the conception of distributive justice understood as an attribute of individual conduct (and now often treated as synonymous with ‘social justice’) prove that it has any relevance to the positions arising from the market process. I believe indeed that the greatest service I can still render to my fellow men would be if it were in my power to make them ashamed of ever again using that hollow incantation.

I felt it my duty at least to try and free them of that incubus which today makes fine sentiments the instruments for the destruction of all values of a free civilization-and to try this at the risk of gravely offending many the strength of whose moral feelings I respect. xvi P REFACE The present version of the central chapter of this volume has in consequence of this history in some respects a slightly different character from the rest of the volume which in all essentials was completed six or seven years earlier. There was, on the one hand, nothing I could positively demonstrate but y task was to put the burden of proof squarely on those who employ the term. On the other hand, in re-writing that chapter I no longer had that easy access to adequate library facilities which I had when I prepared the first draft of this volume. I have in consequence not been able in that chapter systematically to take account of the more recent literature on the topics I discussed as I had endeavoured to do in the rest of this volume. In one instance the feeling that I ought to justify my position vis-a-vis a major recent work has also contributed to delay the completion of this volume.

But after careful consideration I have come to the conclusion that what I might have to say about John Rawls’ A Theory of Justice (1972) would not assist in the pursuit of my immediate object because the differences between us seemed more verbal than substantial. Though the first impression of readers may be different, Rawls’ statement which I quote later in this volume (p. 100) seems to me to show that we agree on what is to me the essential point. Indeed, as I indicate in a note to that passage, it appears to me that Rawls has been widely misunderstood on this central issue.

The preface to the third volume, which ultimately appeared in 1979, gives a similar account of the further development that also had better be repeated here: Except for what are now the last two chapters, most of it was in fairly finished form as long ago as the end of 1969 when indifferent health forced me to suspend the efforts to complete it. It was then, indeed, doubt whether I would ever succeed in doing so which made me decide to publish separately as volume 1 the first third of what had been intended to form a single volume, because it was in completely finished form. When I was able to return to ystematic work I discovered, as I have explained in the preface to volume 2, that at least one chapter of the original draft of that part required complete re-writing. Of the last third of the original draft only what was xvii P REFACE intended to be the last chapter (chapter 18) had not been completed at the time when I had discontinued work. But while I believe I have now more or less carried out the original intention, over the long period which has elapsed my ideas have developed further and I was reluctant to send out what inevitably must be my last systematic work without at east indicating in what direction my ideas have been moving. This has had the effect that not only what was meant to be the concluding chapter contains a good deal of, I hope, improved re-statements of arguments I have developed earlier, but that I found it necessary to add an Epilogue which expresses more directly the general view of moral and political evolution which has guided me in the whole enterprise. I have also inserted as chapter 16 a brief recapitulation of the earlier argument. There were also other causes which have contributed to delay completion. As I had hesitated whether I ought to ublish volume 2 without taking full account of the important work of John Rawls, A Theory of Justice (Oxford, 1972), two new important books in the field have since appeared which, if I were younger, I should feel I must fully digest before completing my own survey of the same kind of problems: Robert Nozik, Anarchy, State and Utopia (New York, 1974) and Michael Oakeshott, On Human Conduct (Oxford, 1975). Rightly or wrongly I finally decided that if I made an effort fully to absorb their argument before concluding my own exposition, I would probably never do this. But I regard it as my duty to tell the younger readers that they cannot fully omprehend the present state of thought on these issues unless they make that effort which I must postpone until I have completed the statement of the conclusions at which I had arrived before I became acquainted with these works. The long period over which the present work has been growing also had the effect that I came to regard it as expedient to change my terminology on some points on which I should warn the reader. It was largely the growth of cybernetics and the related subjects of information and system theory which persuaded me that expression other than those which I habitually used may be more readily comprehensible o the contemporary reader. Though I still like and occasionally use the term ‘spontaneous order’, I agree that xviii P REFACE ‘self-generating order’ or ‘self-organizing structures’ are sometimes more precise and unambiguous and therefore frequently use them instead of the former term. Similarly, instead of ‘order’, in conformity with today’s predominant usage, I occasionally now use ‘system’. Also ‘information’ is clearly often preferable to where I usually spoke of ‘knowledge’, since the former clearly refers to the knowledge of particular facts rather than theoretical knowledge to which plain ‘knowledge’ might be thought to refer.

Finally, since ‘constructivist’ appears to some people still to carry the commendatory connotation derived from the adjective ‘constructive’, I felt it advisable, in order clearly to bring out the deprecatory sense in which I use that term (significantly of Russian origin) to employ instead the, I am afraid, still more ugly term ‘constructivistic’. I should perhaps add that I feel some regret that I have not had the courage consistently to employ certain other neologisms I had suggested, such as ‘cosmos’, ‘taxis’, ‘nomos’, ‘thesis’, ‘catallaxy’ and ‘demarchy’.

But what the exposition has thereby lost in precision it will probably have gained in ready intelligibility. Perhaps I should also again remind the reader that the present work was never intended to give an exhaustive or comprehensive exposition of the basic principles on which a society of free man could be maintained, but was rather meant to fill the gaps which I discovered after I had made an attempt to restate, in The Constitution of Liberty, for the contemporary reader the traditional doctrines of classical liberalism in a form suited to contemporary problems and thinking.

It is for this reason a much less complete, much more difficult and personal but, I hope, also more original work than the former. But it is definitely supplementary to and not a substitute for it. To the non-specialist reader I would therefore recommend reading The Constitution of Liberty before he proceeds to the more detailed discussion or particular examination of problems to which I have attempted solutions in these volumes. But they are intended to explain why I still regard what have now long been treated as antiquated beliefs as greatly superior to any alternative octrines which have recently found more favour with the public. The reader will probably gather that the whole work has xix P REFACE been inspired by a growing apprehension about the direction in which the political order of what used to be regarded as the most advanced countries is teuding. The growing conviction, for which the book gives the reasons, that this threatening development towards a totalitarian state is made inevitable by certain deeply entrenched defects of construction of the generally accepted type of ‘democratic’ government has forced me to think through alternative arrangements.

I would like to repeat here that, though I profoundly believe in the basic principles of democracy as the only effective method which we have yet discovered of making peaceful change possible, and am therefore much alarmed by the evident growing disillusionment about it as a desirable Inelhod of government-much assisted by the increasing abuse of the word to indicate supposed ailns of governmentI am becoming more and more convinced that we are moving towards an impasse from which political leaders will offer to extricate us by desperate means. When the present volume leads up to a proposal of basic lteration of the structure of democratic government, which at this time most people will regard as wholly impractical, this is meant to provide a sort of intellectual stand-by equipment for the time, which may not be far away, when the breakdown of the existing institutions becomes unmistakable and when I hope it may show a way out. It should enable us to preserve what is truly valuable in democracy and at the same time free us of its objectionable features which most people still accept only because they regard them as inevitable. Together with the similar stand-by scheme I have proposed for depriving overnment of the monopolistic powers of control of the supply of money, equally necessary if we are to escape the nightmare of increasingly totalitarian powers, which I have recently outlined in another publication (Denationalisation of Money, 2nd edn, Institute of Economic Affairs, London, 1978), it proposes what is a possible escape from the fate which threatens us. I shall be content if I have persuaded some people that if the first experiment of freedom we have tried in modern times should prove a failure, it is not because freedom is an impracticable ideal, but because we have tried it the wrong way. xx P REFACE

I trust the reader will forgive a certain lack of system and some unnecessary repetitions in an exposition which has been written and re-written over a period of fifteen years, broken by a long period of indifferent health. I am very much aware of this, but if I tried in my eightieth year to recast it all, I shall probably never complete the task. The Epilogue I added to that volume before publication indicates that even during the period of restricted activity my ideas have continued to develop imperceptibly more than I was aware before I attempted to sketch my present general view of the whole position in a public lecture.

As I said in the concluding words of the present text, it became clear to me that what I said in that Epilogue should not be an Epilogue but a new beginning. I am glad to be able to say now that it has turned out to be such and that that Epilogue has become the outline of a new book of which I have now completed a first draft. There are a few acknowledgments that I ought to repeat here. Some ten years ago Professor Edwin McClellan of the University of Chicago had again, as on earlier occasions, taken great trouble to make my exposition more readable than I myself could have done.

I am deeply grateful for his sympathetic efforts but should add, that since even in the early parts the draft on which he has worked has since undergone further change, he must not be held responsible for whatever defects the present version still has. I have however incurred further obligations to Professor Arthur Shenfield of London who has gone through the final text of the third volume and corrected there a variety of substantial as well as stylistic points, and to Mrs Charlotte Cubitt who, in preparing the final copy of that volume, has further polished the text.

I am also much indebted to Mrs Cornelia Crawford of Irvington-on-Hudson, New York, who has again applied her proven skill and understanding in preparing the subject index giving references to all three still separately paginated volumes. xxi L AW, LEGISLATION AND LIBERTY Volume 1 RULES AND ORDER Intelligent beings may have laws of their own making; but they also have some which they never made. (Montesquieu, De l’Esprit des lois, I, p. i) I NTRODUCTION

There seems to be only one solution to the problem: that the elite of mankind acquire a consciousness of the limitation of the human mind, at once simple and profound enough, humble and sublime enough, so that Western civilisation will resign itself to its inevitable disadvantages. G. Ferrero* When Montesquieu and the framers of the American Constitution articulated the conception of a limiting constitution 1 that had grown up in England, they set a pattern which liberal constitutionalism has followed ever since.

Their chief aim was to provide institutional safeguards of individual freedom; and the device in which they placed their faith was the separation of powers. In the form in which we know this division of power between the legislature, the judiciary, and the administration, it has not achieved what it was meant to achieve. Governments everywhere have obtained by constitutional means powers which those men had meant to deny them. The first attempt to secure individual liberty by constitutions has evidently failed. Constitutionalism means limited government. But the interpretation given to the traditional formulae of constitutionalism has made it possible to reconcile these with a conception of democracy according to which this is a form of government where the will of the majority on any particular matter is unlimited. 3 As a result it has already been seriously suggested that constitutions are an antiquated survival which have no place in the modern conception of government. 4 And, indeed, what function is served by a constitution which makes omnipotent government possible?

Is its function to be merely that governments work smoothly and efficiently, whatever their aims? In these circumstances it seems important to ask what those founders of liberal constitutionalism would do today if, pursuing I NTRODUCTION the aims they did, they could command all the experience we have gained in the meantime. There is much we ought to have learned from the history of the last two hundred years that those men with all their wisdom could not have known. To me their aims seem to be as valid as ever.

But as their means have proved inadequate, new institutional invention is needed. In another book I have attempted to restate, and hope to have in some measure succeeded in clarifying, the traditional doctrine of liberal constitutionalism. 5 But it was only after I had completed that work that I came to see clearly why those ideals had failed to retain the support of the idealists to whom all the great political movements are due, and to understand what are the governing beliefs of our time which have proved irreconcilable with them.

It seems to me now that the reasons for this development were chiefly: the loss of the belief in a justice independent of personal interest; a consequent use of legislation to authorize coercion, not merely to prevent unjust action but to achieve particular results for specific persons or groups; and the fusion in the same representative assemblies of the task of articulating the rules of just conduct with that of directing government.

What led me to write another book on the same general theme as the earlier one was the recognition that the preservation of a society of free men depends on three fundamental insights which have never been adequately expounded and to which the three main parts of this book are devoted. The first of these is that a selfgenerating or spontaneous order and an organization are distinct, and that their distinctiveness is related to the two different kinds of rules or laws which prevail in them.

The second is that what today is generally regarded as ‘social’ or distributive justice has meaning only within the second of these kinds of order, the organization; but that it is meaningless in, and wholly incompatible with, that spontaneous order which Adam Smith called ‘the Great Society’, and Sir Karl Popper called ‘the Open Society’.

The third is that the predominant model of liberal democratic institutions, in which the san1e representative body lays down the rules of just conduct and directs government, necessarily leads to a gradual transformation of the spontaneous order of a free society into a totalitarian system conducted in the service of some coalition of organized interests. This development, as I hope to show, is not a necessary consequence of democracy, but an effect only of that particular form of unlimited government vvith which delllocracy has come to be identi2 I NTRODUCTION fied.

If I aln right, it would indeed seem that the particular form of representative government which now prevails in the Western world, and vhich many feel they must defend because they nlistakenly regard it as the only possible form of democracy, has an inherent tendency to lead away from the ideals it was intended to serve. It can hardly be denied that, since this type of democracy has come to be accepted, we have been moving away from that ideal of individual liberty of which it had been regarded as the surest safeguard, and are now drifting towards a system “,~hich nobody wanted.

Signs are not wanting, however, that unlimited democracy is riding for a fall and that it will go down, not with a bang, but with a whimper. It is already becoming clear that many of the expectations that have been raised can be met only by taking the powers of decision out of the hands of democratic assemblies and entrusting them to the established coalitions of organized interests and their hired experts. Indeed, we are already told that the function of representative bodies has become to ‘mobilize consent’, 6 that is, not to express but to manipulate the opinion of those whom they represent.

Sooner or later the people will discover that not only are they at the mercy of new vested interests, but that the political machinery of para-government, which has grown up as a necessary consequence of the provision-state, is producing an impasse by preventing society from making those adaptations which in a changing world are required to maintain an existing standard of living, let alone to achieve a rising one. It will probably be some time before people will admit that the institutions they have created have led them into such an impasse. But it is probably not too early to begin thinking about a way out.

And the conviction that this will demand some drastic revision of beliefs now generally accepted is what makes me venture here on some institutional invention. If I had known when I published The Constitution of Liberty that I should proceed to the task attempted in the present work, I should have reserved that title for it. I then used the term ‘constitution’ in the wide sense in which we use it also to describe the state of fitness of a person. It is only in the present book that I address myself to the question of what constitutional arrangements, in the legal sense, might be most conducive to the preservation of individual freedom.

Except for a bare hint which fev readers will have noticed,7 I confined myself in the earlier book to stating the principles which the existing types of government would have 3 I NTRODUCTION to follow if they wished to preserve freedom. Increasing awareness that the prevailing institutions make this impossible has led me to concentrate more and more on what at first seemed merely an attractive but impracticable idea, until the utopia lost its strangeness and came to appear to me as the only solution of the problem in which the founders of liberal constitutionalism failed.

Yet to this problem of constitutional design I turn only in volume 3 of this work. To make a suggestion for a radical departure from established tradition at all plausible required a critical re-examination not only of current beliefs but of the real meaning of some fundamental conceptions to which we still pay lip-service. In fact, I soon discovered that to carry out what I had undertaken would require little less than doing for the twentieth century what Montesquieu had done for the eighteenth.

The reader will believe me when I say that in the course of the work I more than once despaired of my ability to come even near the aim I had set myself. I am not speaking here of the fact that Montesquieu was also a great literary genius whom no mere scholar can hope to emulate. I refer rather to the purely intellectual difficulty which is a result of the circumstance that, while for Montesquieu the field which such an undertaking must cover had not yet split into numerous specialisms, it has since become impossible for any man to master even the most important relevant works.

Yet, although the problem of an appropriate social order is today studied from the different angles of economics, jurisprudence, political science, sociology, and ethics, the problem is one which can be approached successfully only as a whole. This means that whoever undertakes such a task today cannot claim professional competence in all the fields with which he has to deal, or be acquainted with the specialized literature available on all the questions that arise.

Nowhere is the baneful effect of the division into specialisms more evident than in the two oldest of these disciplines, economics and law. Those eighteenth-century thinkers to whom we owe the basic conceptions of liberal constitutionalism, David Hume and Adam Smith, no less than Montesquieu, were still concerned with what some of them called the ‘science of legislation’, or with principles of policy in the widest sense of this term.

One of the main themes of this book will be that the rules of just conduct which the lawyer studies serve a kind of order of the character of which the lawyer is largely ignorant; and that this order is studied chiefly by the economist who in turn is similarly ignorant of the character of 4 I NTRODUCTION the rules of conduct on which the order that he studies rests. The most serious effect of the splitting up among several specialisms of what was once a common field of inquiry, however, is that it has left a no-man’s-land, a vague subject sometimes called ‘social philosophy’.

Some of the chief disputes within those special disciplines turn, in fact, on differences about questions which are not peculiar to, and are therefore also not systematically examined by, anyone of them, and which are for this reason regarded as ‘philosophical’. This serves often as an excuse for taking tacitly a position which is supposed either not to require or not to be capable of rational justification. Yet these crucial issues on which not only factual interpretations but also political positions wholly depend, are questions which can and must be answered on the basis of fact and logic.

They are ‘philosophical’ only in the sense that certain widely but erroneously held beliefs are due to the influence of a philosophical tradition which postulates a false answer to questions capable of a definite scientific treatment. In the first chapter of this book I attempt to show that certain widely held scientific as well as political views are dependent on a particular conception of the formation of social institutions, which I shall call ‘constructivist rationalism’ -a conception which assumes that all social institutions are, and ought to be, the product of deliberate design.

This intellectual tradition can be shown to be false both in its factual and in its normative conclusions, because the existing institutions are not all the product of design, neither would it be possible to make the social order vvholly dependent on design without at the same time greatly restricting the utilization of available knowledge. That erroneous view is closely connected with the equally false conception of the human mind as an entity standing outside the cosmos of nature and society, rather than being itself the product of the same process of evolution to which the institutions of society are due.

I have indeed been led to the conviction that not only some of the scientific but also the most important political (or ‘ideological’) differences of our time rest ultimately on certain basic philosophical differences between two schools of thought, of which one can be shown to be mistaken. They are both commonly referred to as rationalism, but I shall have to distinguish between them as the evolutionary (or, as Sir Karl Popper calls it, ‘critical’) rationalism on the one hand, and the erroneous constructivist (Popper’s naIve’) rationalism on the other. If the constructivist rationalism 5 I NTRODUCTION can be shovn to be based on factually false assumptions, a whole family of schools of scientific as well as political thought will also be proved erroneous. In the theoretical fields it is particularly legal positivisn1 and the connected belief in the necessity of an unlimited ‘sovereign’ pover which stand or fall vith this error.

The same is true of utilitarianism, at least in its particularistic or ‘act’ variety; also, I am afraid that a not inconsiderable part of what is called ‘sociology’ is a direct child of constructivisn1 when it presents its aims as ‘to create the future of mankind’ 8 or, as one writer put it, claims ‘that socialism is the logical and inevitable outcome of sociology’. 9 All the totalitarian doctrines, of vhich socialism is merely the noblest and most influential, indeed belong here.

They are false, not because of the values on vhich they are based, but because of a misconception of the forces vhich have Inade the Great Society and civilization possible. r-rhe demonstration that the differences between socialists and non-socialists ultimately rest on purely intellectual issues capable of a scientific resolution and not on different judgments of value appears to me one of the most important outcomes of the train of thought pursued in this book.

It appears to me also that the same factual error has long appeared to make insoluble the most crucial problem of political organization, namely ho” to limit the ‘popular will’ vithout placing another ‘”rill’ above it. As soon as ve recognize that the basic order of the Great Society cannot rest entirely on design, and can therefore also not aim at particular foreseeable results, we see that the requirement, as legitilnation of all authority, of a commitment to general principles approved by general opinion, Inay well place effective restrictions on the particular yill of all authority, including that of the Inajority of the rnoment.

On these issues vhich vill be my main concern, thought seems to have made little advance since David Hume and Imlnanuel Kant, and in several respects it vill be at the point at which they left off that our analysis will have to resume. It was they who came nearer than anybody has done since to a clear recognition of the status of values as independent and guiding conditions of all rational construction.

What I am ultimately concerned with here, although I can deal only vith a small aspect of it, is that destruction of values by scientific error which has increasingly come to seem to me the great tragedy of our time-a tragedy, because the values which scientific error tends to dethrone are the indispensable foundation of all our 6 I NTRODUCTION civilization, including the very scientific efforts which have turned against them.

The tendency of constructivism to represent those values which it cannot explain as determined by arbitrary human – decisions, or acts of will, or mere emotions, rather than as the necessary conditions of facts which are taken for granted by its expounders, has done much to shake the foundations of civilization, and of science itself, which also rests on a system of values which cannot be scientifically proved. 7 ONE REASON AND EVOLUTION To relate by whom, and in what connection, the true law of the formation of free states was recognized, and how this iscovery, closely akin to those which, under the names of development, evolution, and continuity, have given a new and deeper method to other sciences, solved the ancient problem betveen stability and change, and determined the authority of tradition on the progress of thought. Lord Acton* Construction and evolution There are two ways of looking at the pattern of human activities which lead to very different conclusions concerning both its explanation and the possibilities of deliberately altering it. Of these, one is based on conceptions which are demonstrably false, yet are so pleasing to human anity that they have gained great influence and are constantly employed even by people who know that they rest on a fiction, but believe that fiction to be innocuous. The other, although few people will question its basic contentions if they are stated abstractly, leads in some respects to conclusions so unwelcome that few are willing to follow it through to the end. The first gives us a sense of unlimited power to realize our wishes, while the second leads to the insight that there are limitations to what we can deliberately bring about, and to the recognition that some of our present hopes are delusions.

Yet the effect of allowing ourselves to be deluded by the first view has always been that n1an has actually limited the scope of what he can achieve. For it has always been the recognition of the limits of the possible which has enabled man to make full use of his powers. 1 The first view holds that human institutions will serve human purposes only if they have been deliberately designed for these purposes, often also that the fact that an institution exists is evidence of its having been created for a purpose, and always that we R EASON AND EVOLUTION should so re-design society and its institutions that all our actions will be wholly guided by known purposes. To most people these propositions seem almost self-evident and to constitute an attitude alone worthy of a thinking being. Yet the belief underlying them, that we owe all beneficial institutions to design, and that only such design has made or can make them useful for our purposes, is largely false.

This view is rooted originally in a deeply ingrained propensity of primitive thought to interpret all regularity to be found in phenomena anthropomorphically, as the result of the design of a thinking mind. But just when man was well on the “vay to emancipating himself from this naive conception, it was revived by the support of a powerful philosophy with which the aim of freeing the human mind from false prejudices has become closely associated, and which became the dominant conception of the Age of Reason.

The other view, which has slowly and gradually advanced since antiquity but for a time was almost entirely overwhelmed by the more glamorous constructivist view, was that that orderliness of society which greatly increased the effectiveness of individual action was not due solely to institutions and practices which had been invented or designed for that purpose, but was largely due to a process described at first as ‘growth’ and later as ‘evolution’, a process in which practices which had first been adopted for other reasons, or even purely accidentally, were preserved because they enabled the group in which they had arisen to prevail over others. Since its first systematic development in the eighteenth century this view had to struggle not only against the anthropomorphism of primitive thinking but even more against the reinforcement these naive views had received from the new rationalist philosophy. It was indeed the challenge which this philosophy provided that led to the explicit formulation of the evolutionary view. 2 The tenets of Cartesian rationalism The great thinker from whom the basic ideas of what we shall call constructivist rationalism received their most complete expression was Rene Descartes.

But while he refrained from drawing the conclusions from them for social and moral arguments, 3 these were mainly elaborated by his slightly older (but much more long-lived) contemporary, Thomas Hobbes. Although Descartes’ immediate concern was to establish criteria for the truth of propositions, these 9 R EASON AND EVOLUTION were inevitably also applied by his follovers to judge the appropriateness and justification of actions. The ‘radical doubt’ which made him refuse to accept anything as true which could not be logically derived from explicit premises that were ‘clear and distinct’, and therefore beyond possible doubt, deprived of validity all those rules of conduct which could not be justified in this manner. Although Descartes himself could escape the consequences by scribing such rules of conduct to the design of an omniscient deity, for those among his followers to whom this no longer seemed an adequate explanation the acceptance of anything which was based merely on tradition and could not be fully justified on rational grounds appeared as an irrational superstition. The rejection as ‘mere opinion’ of all that could not be demonstrated to be true by his criteria became the dominant characteristic of the movement which he started. Since for Descartes reason was defined as logical deduction from explicit premises, rational action also came to mean only such action as was determined entirely by known and demonstrable truth. It is almost an inevitable step from this to the conclusion that only what is true in this sense can lead to successful action, and that therefore everything to which man owes his achievements is a product of his reasoning thus conceived.

Institutions and practices which have not been designed in this n1anner can be beneficial only by accident. Such became the characteristic attitude of Cartesian constructivism with its contempt for tradition, custom, and history in general. Man’s reason alone should enable him to construct society anew. 4 This ‘rationalist’ approach, however, meant in effect a relapse into earlier, anthropomorphic modes of thinking. It produced a reneved propensity to ascribe the origin of all institutions of culture to invention or design. Morals, religion and law, language and writing, money and the market, were thought of as having been deliberately constructed by somebody, or at least as owing whatever perfection they possessed to such design.

This intentionalist or pragmatic 5 account of history found its fullest expression in the conception of the formation of society by a social contract, first in Hobbes and then in Rousseau, who in many respects was a direct follover of Descartes. 6 Even though their theory was not alvvays meant as a historical account of what actually happened, it was always meant to provide a guideline for deciding whether or not existing institutions were to be approved as rational. 10 R EASON AND EVOLUTION I t is to this philosophical conception that we owe the preference which prevails to the present day for everything that is done ‘consciously’ or ‘deliberately’, and from it the terms ‘irrational’ or ‘non-rational’ derive the derogatory meaning they now have.

Because of this the earlier presumption in favour of traditional or established institutions and usages became a presumption against them, and ‘opinion’ came to be thought of as ‘mere’ opinionsomething not demonstrable or decidable by reason and therefore not to be accepted as a valid ground for decision. Yet the basic assumption underlying the belief that man has achieved n1astery of his surroundings mainly through his capacity for logical deduction from explicit premises is factually false, and any attempt to confine his actions to what could thus be justified would deprive him of many of the most effective means to success that have been available to him. It is simply not true that our actions owe their effectiveness solely or chiefly to knowledge which we can state in vords and vhich can therefore constitute the explicit premises of a syllogism.

Many of the institutions of society which are indispensable conditions for the successful pursuit of our conscious aims are in fact the result of customs, habits or practices which have been neither invented nor are observed with any such purpose in view. We live in a society in which we can successfully orientate ourselves, and in which our actions have a good chance of achieving their aims, not only because our fellows are governed by known aims or known connections between means and ends, but because they are also confined by rules whose purpose or origin we often do not know and of whose very existence we are often not aware. Man is as much a rule-following animal as a purpose-seeking one. And he is successful not because he knows why he ought to observe the rules vhich he does observe, or is even capable of stating all these rules in vords, but because his thinking and acting are governed by rules which have by a process of selection been evolved in the society in which he lives, and vhich are thus the product of the experience of generations. The permanent limitations of our factual knowledge The constructivist approach leads to false conclusions because man’s actions are largely successful, not merely in the primitive stage but perhaps even more so in civilization, because they are adapted both II R EASON AND EVOLUTION to the particular facts which he knows and to a great many other facts he does not and cannot know. And this adaptation to the general circumstances that surround him is brought about by his observance of rules which he has not designed and often does not even knovv explicitly, although he is able to honour them in action.

Or, to put this differently, our adaptation to our environment does not consist only, and perhaps not even chiefly, in an insight into the relations between cause and effect, but also in our actions being governed by rules adapted to the kind of world in which we live, that is, to circumstances which we are not aware of and which yet determine the pattern of our successful actions. Complete rationality of action in the Cartesian sense demands complete knowledge of all the relevant facts. A designer or engineer needs all the data and full power to control or manipulate them if he is to organize the material objects to produce the intended result. But the success of action in society depends on more particular facts than anyone can possibly know. And our whole civilization in consequence rests, and must rest, on our believing rnuch that we cannot know to be true in the Cartesian sense. What we must ask the reader to keep constantly in mind throughout this book, hen, is the fact of the necessary and irremediable ignorance on everyone’s part of most of the particular facts which determine the actions of all the several members of human society. This may at first seem to be a fact so obvious and incontestable as hardly to deserve mention, and still less to require proof. Yet the result of not constantly stressing it is that it is only too readily forgotten. This is so mainly because it is a very inconvenient fact which makes both our attempts to explain and our attempts to influence intelligently the processes of society very much more difficult, and which places severe limits on what we can say or do about them. There exists therefore a great temptation, as a first approximation, to begin with the assumption that we know everything needed for full explanation or control.

This provisional assumption is often treated as something of little consequence which can later be dropped without much effect on the conclusions. Yet this necessary ignorance of most of the particulars which enter the order of a Great Society is the source of the central problem of all social order and the false assumption by which it is provisionally put aside is mostly never explicitly abandoned but merely conveniently forgotten. The argument then proceeds as if that ignorance did not matter. 12 R EASON AND EVOLUTION The fact of our irrcrnediable ignorance of most of the particular facts which determine the processes of society is, however, the reason why most social institutions have taken the form they actually have.

To talk about a society about vvhich either the observer or any of its members knows all the particular facts is to talk about something wholly different from anything vhich has ever existcda society in which lnost of vhat ve find in our society vould not and could not exist and vhich, if it ever occurred, vould possess properties ve cannot even imagine. I have discussed the importance of our necessary ignorance of the concrete facts at some length in an earlier book 8 and will emphasize its central importance here mainly by stating it at the head of the vhole exposition. But there are several points vhich require re-statement or elaboration. In he first instance, the incurable ignorance of everyone which I am speaking is the ignorance of particular facts which are or will become knovn to somebody and thereby affect the vhole structure of society. rrhis structure of human activities constantly adapts itself, and functions through adapting itself, to millions of facts which in their entirety are not known to anybody. The significance of this process is most obvious and \Tas at first stressed in the economic field. As it has been said, ‘the economic life of a non -socialist society consists of millions of relations or flows between individual firms and households. Ve can establish certain theorems about them, but vve can never observe all. 9 The insight into the significance of our institutional ignorance in the economic sphere, and into the methods by vhich ve have learnt to overcome this obstacle, vas in fact the starting point 10 for those ideas which in the present book arc systelnatically applied to a much wider field. It will be one of our chief contentions that most of the rules of conduct vhich govern our actions, and lnost of the institutions which arise out of this regularity, are adaptations to the impossibility of anyone taking conscious account of all the particular facts which enter into the order of society. vVe shall see, in particular, that the possibility of justice rests on this necessary limitation of our factual knowledge, and that insight into the nature of justice is therefore denied to all those constructivists \·ho habitually argue on the assulnption of omniscience.

Another consequence of this basic fact vhich must be stressed here is that only in the small groups of primitive society can collaboration betveen the members rest largely on the circumstance that at anyone moment they will know more or less the same particular 13 R EASON AND EVOLUTION circulnstances. SOl1le wise men 111ay be better at interpreting the immediately perceived circumstances or at remembering things in rClnote places unkndvvn to the others. But the concrete events vhich the individuals encounter in their daily pursuits will be very much the same for all, and they will act together because the events they know and the objectives at which they aim are more or less the same.

The situation is wholly different in the Great 11 or Open Society where millions of men interact and where civilization as we know it has developed. Econon1ics has long stressed the ‘division of labour’ which such a situation involves. But it has laid much less stress on the fragmentation of knowledge, on the fact that each Inember of society can have only a small fraction of the knowledge possessed by all, and that each is therefore ignorant of most of the facts on which the working of society rests. Yet it is the utilization of much more knowledge than anyone can possess, and therefore the fact that each moves within a coherent structure most of whose deterlninants are unknown to him, that constitutes the distinctive feature of all advanced civilizations.

In civilized society it is indeed not so much the greater knowledge that the individual can acquire, as the greater benefit he receives from the knovledge possessed by others, which is the cause of his ability to pursue an infinitely wider range of ends than merely the satisfaction of his most pressing physical needs. Indeed, a ‘civilized’ individual may be very ignorant, more ignorant than many a savage, and yet greatly benefit from the civilization

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