Among scholars of freedom, few are more admired than the polymathic Friedrich Hayek, who helped articulate the case for liberty in economics, law, politics, and other disciplines. Perhaps his most famous idea is that social mores or legal rules can emerge as a result of particular individuals acting on local knowledge — and therefore that economic and political order need not be designed and implemented by conscious planning. Indeed, economic and political orders are so complex, and involve so much scattered and inarticulable information, that no central authority could harness the details required to design them. In a free society, countless individuals managing their own affairs end up cooperating without realizing it, thanks to the choices they make based on their limited information. The whole institution grows from the bottom up. This “spontaneous order,” Hayek argued, is a dynamic discovery process, in which people can experiment with new social mores, or new laws, just as they might with new technologies. As he put it in The Constitution of Liberty, “[t]he existence of individuals and groups simultaneously observing partially different rules provides the opportunity for the selection of more effective ones.”

Hayek contrasted this with “rational constructivism”: that is, the effort to construct an order through top-down planning that coordinates individual actions toward some chosen end. Government bureaucracies and socialized industries are constructed orders, which Hayek defined as “relatively simple, or at least necessarily confined to such moderate degrees of complexity as the maker can still survey… usually concrete, in the sense… that their existence can be intuitively perceived by inspection, and… they invariably do (or at one time did) serve a purpose of the maker.”

This is a useful observation, so far as it goes. Unfortunately, Hayek went further. In Law, Legislation and Liberty, he used this observation as the foundation for a critique of constructivism. In short, Hayek argues that we ought to prefer spontaneously generated orders and resist efforts to construct and impose intentional and purposive institutions. But, as I explain more thoroughly in “Some Problems with Spontaneous Order,” there are four major problems with his argument: (1) The difference between constructed and spontaneous orders is not a difference in principle. Indeed, the difference turns out to depend solely on the observer’s choice of perspective. This means that (2) while spontaneous order is descriptively useful, it provides no basis for a normative critique of constructivism, just as the concept of evolution by natural selection cannot tell us whether a lion should eat any particular antelope. In fact, (3) unless all orders that persist are ipso facto just, then the concept of spontaneous order gives us no basis for recognizing an unjust order. Hayek tried to resolve this problem by incorporating intentional planning into the process of spontaneous order, but this meant that (4) remedying injustice requires “rational constructivism,” which leads us back to problem (1).

1. The Difference Between Spontaneous and Constructed Orders

The distinction between spontaneous and constructed orders dissolves upon rigorous inspection. Any action by any individual or firm in the market looks on close-up view like a constructed, artificial order. But take three steps back, and from a distance the same action looks like part of the bustling, experimental give and take of spontaneous order.

If a company adopts a new policy for handling paperwork or manufacturing some product, that policy — the brainchild of an executive who decided to impose the policy from the top down — is surely a constructed order; it is “relatively simple,” “concrete,” and “serve[s] a purpose of the maker.” But from the perspective of the economy as a whole, that same policy is just a single experimental new idea, a crucial ingredient in spontaneous order: “[t]he existence of individuals and groups simultaneously observing partially different rules provides the opportunity for the selection of more effective ones.”

Consider an exchange between Judge Richard Posner and economist Donald Boureaux in the NYU Journal of Law and Liberty. Posner commented that Hayek’s belief in spontaneous order was “in considerable tension with his great admiration for the Constitution of the United States,” because the Constitution was a written plan of government formulated by experts — a constructed order. But Boudreaux disagreed: the Constitution’s authors “did not seek to create all or even most law de novo,” or “to replace wholesale one set of laws with another.” Rather, they incorporated “[t]he evolved common law rooted in English experience and modified by more recent experience in the colonies.”

Both Posner and Boudreaux were right. The Constitution was rationally constructed, if looked at up close — but it was also the product of a spontaneous order, seen in the context of the history of Anglo-American common law. One cannot distinguish between spontaneous and constructed orders on the basis that Boudreaux suggests — that spontaneous orders incorporate the ideas learned from past experience — because no constructed order is entirely brand new. “No system of law,” Hayek admits, “has ever been designed as a whole, and even the various attempts at codification could do no more than systematize an existing body of law, and in doing so supplement it or eliminate inconsistencies.” Even the most sophisticated bureaucratic, top-down plan is going to incorporate lessons learned through historical experience. In other words, the “partially different rules” that compete in the spontaneous order are necessarily “constructed” ones. And because Hayek incorporates these elements of constructivism into his account of spontaneous order, he ends up making it impossible to discriminate between a spontaneous and a constructed order.

Hayek exploited his concept’s flexibility when he said that “deliberate efforts… [to] improve the existing system by laying down new rules” were actually consistent with the principle of spontaneous order because “it remains true that the system of rules as a whole does not owe its structure to the design” of planners. The phrase “as a whole” is doing all the work here. As a whole, no order is constructed. The term “as a whole” here represents Hayek taking a convenient and unwarranted step back to look at the system through a lens so wide that anything, no matter how rationally constructed, can still qualify as part of the spontaneous order.

This trick renders the distinction between spontaneous and constructed order trivial, or, worse, rhetorical. If the observer draws a circle narrowly around a single transaction, a single reform proposal, a single firm, a single state, or a single nation, then the order appears constructed. But take a step back and look at the transaction in the context of the multitude of interactions between individuals and firms — “the system of rules as a whole” — and even the most radical, state-implemented reform is just a tiny experimental particle in the flux of spontaneous order. The difference between constructed and spontaneous orders, in fact, begins to look more like the difference between microevolution and macroevolution in biology. Whatever use that distinction might have in some contexts, it is not a distinction in principle: all evolution is microevolution; macroevolution is just an accumulation of microevolutionary changes over the course of aeons.

2. The Normative Critique of Constructed Order

If there’s no conceptual distinction between constructed and spontaneous order, there can be no foundation for a normative critique of constructed orders. It is true that order can emerge from particular actions, but that is not a good argument against implementing planned or constructed approaches to social problems. If a bureaucrat proposes a top-down, rational plan for economic or social organization, the Hayekian cannot object that doing so will disrupt the development of spontaneous order; indeed, that plan is a product of the spontaneous order — and, of course, new spontaneous orders will grow up around it once implemented.

Hayek recognized that spontaneous orders generally include, or are made up of, constructed elements: a spontaneous order, he wrote, is a process “in the course of which spontaneous growth of customs and deliberate improvements of the particulars of an existing system have constantly interacted.” But the boundaries of this interaction are so imprecise that the idea of spontaneous order loses all strength as a basis for criticizing rational constructivism.

Consider, for example, an architect designing a college campus, who wants to decide where to put the sidewalks between the buildings. The “constructivist” solution is to draw lines where the students “ought” to walk, and put sidewalks there. But a Hayekian advises the architect to wait a year and see where the students choose to walk, and then put the sidewalks there, products of a spontaneous order. The architect takes this advice, but a year later, when he goes to install the sidewalks, he meets his Hayekian friend again, who urges him to stop and wait another year! After all, the student body has changed in the interim; rooms were reassigned, and various other factors have reordered the students’ preferences. To put in sidewalks now would be to handicap the dynamic, ever-changing spontaneous order. Every year, he is met with the same advice! Spontaneous orders always evolve, and whenever anyone tries to implement a “discovered” rule, the same objection applies. (Of course, Hayek recognized that discovered rules must eventually be implemented, but as we’ll see, his response to this creates even more problems.)

Hayek seems to argue that lawyers and economists ought only to aim at improving the process of spontaneous order, rather than focusing on results: “we can preserve an order of such complexity not by the method of directing the members, but only indirectly by enforcing and improving the rules conducive to the formation of a spontaneous order.” But everything is “conducive to the formation of a spontaneous order” in one way or another, including coercive institutions. The many accountants who make a living helping fill out tax forms are testament to this.

If spontaneous order incorporates constructed or coercive elements, then it cannot serve as a basis for criticizing constructivism or coercion. As I said before, biological evolution is a spontaneous order process, but it cannot tell any particular lion whether or not to eat any particular antelope, because either way, that choice is incorporated into the process of evolution. Likewise, spontaneous order can give us no guidance about whether any particular rationally constructed plan should or should not be implemented.

3. Recognizing Injustice

Hayek does not fall into the Panglossian trap of arguing that whatever rules happen to persist through social evolution are ipso facto good (although he comes close at times). But his recognition that there may be “occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice” raises a new problem: how does one recognize unjust rules? Where do we get the “general principles of justice” against which to compare the existing order? Hayek’s antirationalism leads him to reject the idea of “construct[ing] social rules by deduction from explicit premises.” Indeed, he goes further: the individual mind is “itself the product of the same process of evolution to which the institutions of society are due,” and is “embedded in a traditional impersonal structure of learnt rules” so that “its capacity to order experience is a replica of cultural patterns which every individual mind finds given.” The process of cultural evolution actually “creates reason,” and philosophy’s “great error” is the idea “that the intuitively perceived ethical values, divined out of the depth of man’s breast, [are] immutable and eternal.”

But if the mind really is socially constructed, it would be untenable for the individual to criticize his social order by comparing it to some abstract notion of justice. As Chandran Kukathas puts it, Hayek’s premise would make it impossible to “stand outside the evolutionary process to evaluate different states of affairs that rational action might lead to.”

So despite Hayek’s (inconsistent) invocation of the “indispensable” necessity of “an ideal picture of a society which may not be wholly achievable,” it is not possible for the citizen of a spontaneous order to take steps toward reform without violating his precepts. The bulk of Hayek’s writing is devoted to attacking the constructivist impulse to impose designed, purposive schemes for making society conform to abstract ideals. Laws, he contends, should be purpose-independent — which means that, just as it is “nonsensical to judge the concrete results of competition by some preconception of the products it ‘ought’ to bring forth,” it is equally nonsensical to judge the concrete results of a rule by some preconception of the outcomes it “ought” to produce. An undesirable particular outcome cannot signal the need to revise the rule that produced it.

The only way Hayek can include social reform in his theory is to devise some account of “immanent” social criticism — criticism that comes not from philosophical abstractions, but is endogenous, and generated by the process of spontaneous order itself. This immediately suggests to Hayek that rules can and should be reformed when they prove inconsistent with other rules. This is the only basis for social criticism that Hayek seriously offers; he makes no effort to explain the origin or basis of the other values he sometimes mentions, like non-coercion. He chooses consistency because it seems more neutral, internal, and process-oriented than abstractions like justice.

But in fact it isn’t. Consistency is not itself an immanent or endogenous value. Inconsistency, like anything else, may very well be perfectly tolerable to members of society. In the days of slavery, white southerners were happy to live in a system that treated blacks differently, and when necessary, antebellum judges often resolved inconsistencies in the law of slavery by simply declaring slaves to be sui generis, subject to unique rules (which does formally eliminate the logical consistency) or by treating them more consistently like property. Consistency is not an adequate substitute for justice.

Yet Hayek believes that justice “depends on the requirements of an existing order to which we are committed.” Why should one be “committed” to that existing order? And, if we should be, why we should one ever seek to reform the existing order by eliminating inconsistencies that might actually strengthen it in ways we cannot understand? At most, Hayek’s advice to reformers is “be careful” — but that cannot serve as a meaningful guide to action in any particular situation.

4. Reforming Injustice

Hayek’s search for an “immanent” social reform is handicapped even more by his reverence for tradition. If we ought to “submi[t] to undesigned rules and conventions whose significance and importance we largely do not understand,” how are we to tell whether an inconsistency in the rules is real or merely apparent, or whether it ought to be eliminated or retained? Idealistic youths in the 1960s might have thought segregation inconsistent and senseless, but if they were counseled to revere conventions whose significance they could not understand, they would not have become freedom riders. Only abstract notions of justice, derived not from mere experience, but by “rationalistic” thinking, can lead to reform of long-standing, traditional injustices.

Hayek does try to incorporate this rationalistic reform into his account of spontaneous order, but only at the cost of stretching that conception so widely as to encompass any state of affairs, and thus render the observation trivial, as noted in part I above. To again quote Kukathas, “if ‘reason’ must be viewed as merely an aspect of the development of social order…not only does it become impossible to distinguish spontaneous processes from constructed organizations, but the very idea of criticism and social reform becomes illusory.”

In Law, Legislation, And Liberty, Hayek struggles and fails to explain how injustice can be eliminated consistently with respect for spontaneous order. He argues that judges should reform faulty rules through “piecemeal tinkering,” but because there is no principled distinction between spontaneous and constructed orders, it is also impossible to distinguish between the rational constructivism that Hayek attacks and the “piecemeal tinkering” he defends.

Consider Lawrence v. Texas, the U.S. Supreme Court decision striking down a Texas law against private, consensual homosexual sex between adults. Many states had such laws, and they were nothing new. Moral condemnation of homosexuality is an ancient custom, a product of spontaneous order, the purpose of which many cannot justify or understand — it is, in Hayek’s words, “part of a moral tradition of the community, a common ideal shared and unquestioningly accepted by the majority.” For the Court to declare those laws unconstitutional based on rationalistic individualism was surely a radical reworking of the social order! Unsurprisingly, conservatives have employed Hayek’s arguments in criticizing courts that rule in favor of gay rights.

But on the other hand, many Americans regarded the Texas law as (in the words of one justice) “uncommonly silly,” and such laws seem to have been seldom enforced. The majority opinion in Lawrence forcefully marshaled precedent and moral and political arguments accepted by many people to conclude that such laws contradict Constitutional protections for individual liberty. Indeed, the justices made a strong argument that they were simply making the law more consistent with fundamental American values — just as Hayek recommended when he wrote that judges should “fill” in legal “gaps” by “appeal[ing] to yet unarticulated principles” that are “required by the rationale of the existing order,” and are “likely to receive general consent.” Judges, he writes, should overthrow existing rules “if they are in conflict with the general sense of justice.” Unsurprisingly, Hayekian arguments have also been used to defend judicial expansions of gay rights.

So was Lawrence a major rationalistic overhaul of American law, or was it just a piecemeal, immanent change? Once again, it’s all a matter of perspective.

Conclusion

Rules, Hayek tells us,

will in their first instance be the product of spontaneous growth, [but] their gradual perfection will require the deliberate efforts of judges (or others learned in the law) who will improve the existing system by laying down new rules…. Yet it remains still true that the system of rules as a whole does not owe its structure to the design of either judges or legislatures. It is the outcome of a process of evolution in the course of which spontaneous growth of customs and deliberate improvements of the particulars of an existing system have constantly interacted.

Under these criteria, any system of rules, and any decision by a judge — whether for the plaintiff or the defendant, or supporting, abolishing, or refining any existing rule — is just a benign part of the spontaneous order. Nothing a planner can do — and everything a planner can do — would violate Hayek’s precepts.

Timothy Sandefur has produced an interesting and thought provoking essay on Friedrich Hayek’s conception of spontaneous order. I have a slight quibble with his title, “Four Problems with Spontaneous Order,” however. On my reading, it appears that Sandefur is discussing two problems with spontaneous order and two problems with Hayek’s jurisprudential philosophy. In my judgment, Sandefur’s problems with the conception of spontaneous order are rather easily resolved. In contrast, Sandefur’s objections to Hayek’s jurisprudence are well-taken, but nevertheless are ultimately unimportant because Hayek’s basic jurisprudential approach can be salvaged from Hayek’s own errors.

Problem 1: The Difference between Spontaneous and Constructed Orders

Sandefur argues that there is no principled distinction between spontaneous and constructed orders. He contends that,

The distinction between spontaneous and constructed orders dissolves upon rigorous inspection. Any action by any individual or firm in the market looks on close-up view like a constructed, artificial order. But take three steps back, and from a distance the same action looks like part of the bustling, experimental give and take of spontaneous order…

If the observer draws a circle narrowly around a single transaction, a single reform proposal, a single firm, a single state, or a single nation, then the order appears constructed. But take a step back and look at the transaction in the context of the multitude of interactions between individuals and firms — “the system of rules as a whole” — and even the most radical, state-implemented reform is just a tiny experimental particle in the flux of spontaneous order.

Now, I may be missing something, but I would have thought the principled distinction between constructed and spontaneous orders was patent — constructed orders have a designated final decision maker; spontaneous orders do not. A single firm or state may consist of many independently functioning parts, but there is always some person or group of persons authorized to decide how the firm or state will act as a collective entity. A spontaneous order has no such centralized, collective decision maker. This is precisely how we distinguish a market from a firm or system of customary/common law from legislation. Spontaneous orders are evolving systems. What makes the state the state is its power to stop evolution. In short, spontaneous orders are systems of individual choice. Constructed orders are systems in which there is an official organ of collective choice.

If there is anything more to this problem, I am blind to it. Spontaneous orders are the product of human action but not human design; constructed orders are the product of human design. That’s about it. The former implies the absence of a conscious final decision maker; the latter implies its presence.

Problem 2: The Normative Critique of Constructed Orders

The solution to the first problem pretty much takes care of the second as well. Sandefur argues, “If there’s no conceptual distinction between constructed and spontaneous order, there can be no foundation for a normative critique of constructed orders.” Because there is a conceptual distinction between constructed and spontaneous order, the consequent of Sandefur’s conditional does not follow.

However, this leaves open the question of whether there actually is a good ground for criticizing a constructed order qua constructed order. As Sandefur points out, “It is true that order can emerge from particular actions, but that is not a good argument against implementing planned or constructed approaches to social problems.” Why prefer a spontaneous ordering process to a constructed one?

To answer this question — and to avoid running headlong into Hume’s is-ought problem — one must show that spontaneous orders advance a legitimate moral value more effectively than do constructed orders. They do. That value is peaceful cooperation.[1]

It is not a coincidence that what Hayek termed the rules of just order — purpose-independent, neutral, universally-applicable rules[2] — evolved through customary/common law processes while almost all the rules designed to exploit or oppress others originated in legislation. The essential characteristic of spontaneous orders — the absence of a conscious final decision maker — means that the rules of the system are always subject to re-evaluation. Rules that are regarded as unsatisfactory by any significant portion of the population, such as those that privilege the interests of some groups over others or otherwise work harsh or unfair results, stimulate increased conflict. This gives rise to increased litigation, which in turn increases the opportunity to try different rules that may be more productive of peaceful interaction. In contrast, rules that facilitate peaceful and cooperative human interaction — Hayek’s rules of just conduct — tend to reduce interpersonal conflict. As a result, there is less litigation, the rules are less frequently challenged, and hence they tend to survive and become a stable part of the order.

Constructed orders — whose essential characteristic is the existence of some person or persons invested with the power to make collective choices for the entire order — function under a different set of incentives. Even with the best of intentions, the inherent limitations on human knowledge make it unlikely that the collective decision makers can accurately identify rules of just conduct in advance of experience. But the combination of human beings’ limited capacity to recognize and admit their own mistakes, lobbying by interested parties, and the effect of basic human prejudices and normative preconceptions not only makes it difficult to correct any initial errors; it also makes it much more likely that exploitative or oppressive rules will become stubbornly entrenched within the order.

Spontaneous orders are normatively superior to constructed orders because the incentives in spontaneous orders make them relatively more likely to produce rules that facilitate peaceful cooperation while the incentives within constructed orders make them relatively more likely to produce rules that facilitate exploitation and oppression.

Problems 3 and 4: Recognizing and Reforming Injustice

Hayek was a brilliant economist and an innovative political thinker who graced the world with several wonderfully fertile insights that continue to bear fruit. Hence, I find it difficult to hold the fact that he was not the greatest philosopher or legal historian against him.

There is much that is wrong with Hayek’s jurisprudential thought. Sandefur highlights the difficulties Hayek becomes enmeshed in by denying any independent grounding for ethics outside of the process of social evolution and by attempting to make purely formal and essentially vacuous values such as generality and consistency do substantive normative work. And this is just the tip of the iceberg. Hayek also anachronistically reads the twentieth century common law process back into the past, inaccurately depicting the common law as a product of judges assimilating new standards into an existing body of rules. Further, despite his denial of any externally derived standards of value, Hayek clearly views the preservation of individual liberty as the proper normative end of the legal system. Sandefur is quite right to point out that by admitting the necessity of the “deliberate efforts of judges (or others learned in the law)” to ride herd on the spontaneous growth of the common law, Hayek simultaneously and inconsistently treats the common law as both a spontaneous and a constructed order.[3]

To the extent that Sandefur is criticizing Hayek’s ethical and jurisprudential theory, I have little disagreement with him. But in doing so, Sandefur is not identifying problems inherent in the concept of spontaneous order itself, but in Hayek the economist’s effort to apply the concept to Anglo-American common law — a field that, by his own admission,[4] he was not familiar with. Hayek’s failure in this regard should not trouble us overmuch. He was a brilliant, original thinker, and it would be uncharitable of us to criticize him for not doing all of the work himself. I, for one, am glad that he left something for us to do.

Hayek was unable to consistently apply his insight about spontaneous order to the law. He was unable to see the law as just another product of market forces. Like virtually everyone of his generation and, for that matter, like virtually everyone today, he saw the law as a unique monopoly, necessarily separate and apart from the market for which it supplied the rules of the game. His belief in the absolute need for a definite set of rules to undergird the market process — his rules of just conduct — made it impossible for him to treat the law as a truly spontaneous order. As a result, he spent much of Law, Legislation and Liberty searching for the square circle — a spontaneous order in which certain human beings were authorized to make collective choices for the entire order.

We, as Hayek’s heirs, however, need not fall into the same trap. I have no difficulty treating ethics as an independently grounded philosophical discipline rather than an inevitable product of social evolution. This provides me, and anyone else, with an Archimedean fixed point on which to stand to criticize any of the rules of a spontaneously evolving legal order as unjust and to call for the reform of those rules.

And indeed, there will be nothing surprising about the continual existence of such criticism. For it is in the nature of a spontaneous order to be riddled with injustice at any point in time. One cannot defend a spontaneous legal order on the ground that it will deliver the perfectly just society. The defense of a spontaneous legal order derives from the Hayekian recognition that limitations on human beings’ knowledge and virtue makes the realization of the perfectly just society impossible, and that the best we can do is subscribe to a flawed but self-correcting process that promises continual marginal improvement over time.

When we appreciate that the defining characteristic of a spontaneous order is the absence of a conscious collective decision maker, it becomes clear that there is nothing inconsistent about recognizing injustice and advocating for reform within a spontaneous legal order. In fact, such advocacy is essential to the proper functioning of the system. After all, a spontaneous order is nothing more than myriad individuals pursuing their individual plans in an environment that allows order to develop without an overarching human intelligence. It is the input of autonomously conceived individual plans and values that drives the system forward.

All we need do to correct Hayek’s mistakes is relinquish the belief that law is a unique realm standing outside of the market that must be consciously regulated to ensure the production of the proper rules of just conduct. I understand that this is not an easy thing to do. The allure of the constructed legal order is almost irresistibly enticing. It offers us the prospect of the just society as an end state that can be reached rather than as a remote limit that can only be approached incrementally. Nevertheless, it is a siren’s song luring us toward disaster on the rocks of the unanticipated consequences, rent-seeking, and venial power struggles that always accompany the existence of a mechanism for collective choice. In the end, the essence of the argument for a spontaneous legal order is, perhaps fittingly, the economic insight that the perfect is the enemy of the good.

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[1] I have defended this claim at greater length elsewhere. See John Hasnas, “Toward a Theory of Empirical Natural Rights,” Social Philosophy and Policy 22:111, 140-42 (2005).

[2] See Friedrich A. Hayek, Law, Legislation, and Liberty, vol 1, pp 85-86 (1973).

[3] I have treated this subject at length elsewhere. See John Hasnas, “Hayek, the Common Law, and Fluid Drive,” New York University Journal of Law & Liberty 1:79 (2005).

[4] See Friedrich A. Hayek, Law, Legislation, and Liberty, vol 1, p 116 (1973).

Timothy Sandefur’s “Four Problems with Spontaneous Order” insightfully questions the coherence or operability of the modifier “spontaneous” and, at least implicitly, whether the noun “order” has any particular meaning. Focusing especially on institutions, conventions, and rules, Sandefur suggests that whether their emergence is “spontaneous” is indeterminate, as it depends on the frame with which we view the matter, and that renders indeterminate the drawing of any practical guidance from Hayek’s discourse.

Sandefur concludes: “Nothing a planner can do — and everything a planner can do — would violate Hayek’s precepts.”

But here I’d change “precepts” to “statements.”

By 1930, largely by way of Ludwig von Mises, Hayek had come round to a quite firm classical liberalism. At the heart of any true liberal’s thinking are two notions: the distinction between voluntary and coercive action, and the maxim that freer is better. But Hayek didn’t lead with these liberal notions. He sensed problems with them as simple formulas, and he tried to trace out warrants that would deliver them as implications. Much of his resulting work could be termed excavation, yielding a lot of insight that did indeed help to develop the warrants for the presumption of liberty. Within that work there was a lot of vagueness, and some circumlocution and tenuous reasoning, even gerrymandering and inconsistency, all inviting necessary criticism like that which Sandefur provides.

I’m a sucker for Hayek, however, and tend to forgive the shortcomings. I can’t help seeing him as an historic figure, struggling desperately after the collapse and vanquishing of liberalism, the professionalization of scholarship, and the fierce advance of modernism. The voluntary-coercive distinction — The Distinction — was anathema to contemporary intellectuals, and today remains a matter of deep pervasive taboo. Hayek was aristocratic in upbringing and genteel in temperament, destined to make his thinking palatable, acceptable. In The Constitution of Liberty he defined liberty not properly, as others not messing with one’s stuff, but vaguely and inconsistently, mostly in terms of some of its appealing correlates. Had he, like Herbert Spencer, William Graham Sumner, and Mises, worked plainly and explicitly from The Distinction in developing his ideas, his fate would have been very different — well, very much like that of Spencer, Sumner, and Mises. Strategic or not, Hayek’s circumlocutions may have been for the best.

To some extent Hayek wrote in code. When he wrote of “custom” being between instinct and reason, he mainly or often meant liberal principles; of “competition as a discovery procedure,” freedom as a discovery procedure; of “the market,” freedom; of noncentral versus central decisionmaking, freer versus less free. All liberals still practice such code when circumstances warrant it. Between the lines, then, is focus on The Distinction.

Sandefur is right that we apply the noncentral-central distinction at different frames, but some frames are more focal than others. Though the noncentral-central distinction can be applied to skating in the roller rink or tasks within the firm, Hayek the political thinker is often referring specifically to a frame of freer versus less free. “Spontaneous” often means free (or freer). I would second Sandefur’s criticism that Hayek unduly denied and downplayed the rationalistic deployment of the liberty principle, for it is a powerful analytical fulcrum and engine of inquiry — three cheers for Jeremy Bentham’s rationalistic challenge to Adam Smith on usury, and for Walter Block’s defenses of the undefendable! — but I don’t have difficulty salvaging much cogency from Hayek’s discourse and forgiving much of his obscurantism.

Then there is the second word, “order.” Here, Sandefur raises important issues but goes too far. In one sense, order is any old order: Even right after the deck is repeatedly shuffled, the cards are in an order. Strictly speaking, spontaneous-order talk frames some concatenation and merely says that, by some relevant comparison, the decisionmaking is noncentral. But what makes spontaneous order especially intriguing is when — as in the concatenation flowing into Smith’s woolen coat or Leonard Read’s pencil, or in the spontaneous processes by which language, money, and other beneficial conventions emerge — that order exhibits coordination much better than would come from relevant, more centralized approaches. Such an order is, in Smith’s words, “not originally the effect of any human wisdom, which foresees and intends that general opulence to which it gives occasion” (WN, 25). “Spontaneous order,” per se, does not imply pleasing concatenate coordination, but in context it typically does. Sandefur misses that or looks beyond it — as when he writes of accounting services spontaneously answering demands induced by tax law. A complicated tax code and heavy burden produces a less pleasing, less well coordinated social concatenation.

I think that concatenate coordination is an evaluative affair, one based on sensibilities we ascribe to the being we imagine to behold the concatenation in question. If we refer to the concatenation within a firm, it is natural for the beholder to correspond to the owners, and to assume that the criterion behind coordinativeness is honest profits — a fairly precise and accurate rule. But when Hayek, Ronald Coase, and many others took the idea of coordination beyond the firm, the precision and accuracy melted away. For the concatenation of the great skein, the imagined beholder is much less clearly defined. That did not stop them, however, from talking about coordination of the vast concatenation. Concatenate coordination invokes a Smithian sort of beholding, that of a figurative being (whose hands are invisible!). In talking about concatenate coordination we develop ideas of the sensibilities proper to such a being. Those sensibilities are, as Smith put it, “loose, vague, and indeterminate” — by which he did not mean purely arbitrary or lacking any standard at all. Smith likened such ethical rules to “the rules that critics lay down for the attainment of what is sublime and elegant in composition” (TMS, 175, 327). Picking up on Smith, Lon Fuller (1969) refers to such rules as the morality of aspiration — making becoming use of what is one’s own. Such rules are still rules, and they are still instructive. In talking coordination, we learn both about mechanisms on the ground and about the sensibilities we should hold and uphold. Those larger sensibilities are where we may find warrant for the presumption of liberty — and for the exceptions we would make to it. Liberty is a political grammar and commutative justice a social grammar, to be associated with what Fuller called the morality of duty (refrain from what is another’s).

In Hayek’s day, the Smithian approach was unacceptable in several respects. Science, the modernists said, was about precision and accuracy, so one could not fess up to the loose, vague, and indeterminate. Second, science was value-free: positive, not normative. Our social scientists are not here to help us explore and cultivate our ethical sensibilities. Third, the Smithian approach is about developing important truths that are true by-and-large, not categorically. Fourth, the most important of those truths, or verities, revolve around the liberty principle and its contravention, matters surrounded by taboo. Fifth, the development of such a nexus of learning doesn’t fit the modernist image of a progressive research program, epistemically conquering the cosmos and administered by specialists and expert-advisors.

Hayek was significantly out of step with the modernists (including Mises, by the way). In his day — and today — Smithianism had to be somewhat covert; in fact, The Theory of Moral Sentiments was long neglected. And, during the twentieth century, even talk of “coordination” (in the sense of concatenate coordination) ebbed away, as notions of “efficiency,” “optimality,” and “social welfare,” each carrying an ostentatious semblance of precision, pervaded the discourse, at least in economics.

Still, in Hayek, Coase, Fuller, Michael Polanyi, and others, sometimes somewhat esoterically, and nowadays more exoterically in folks like Russ Roberts, Tyler Cowen, Don Boudreaux, James Gwartney, Robert Lawson, James Otteson, Richard Epstein, especially Deirdre McCloskey — to mention a few Americans, haphazardly — one can find something more sensible, the Smithian way.

Sandefur, then, usefully points out problems, but when we adjust our viewpoints Hayek and “spontaneous order” come through quite OK, perhaps even with new luster.

References

Fuller, Lon. 1969. The Morality of Law. New Haven: Yale University Press.

Smith, Adam. 1776. The Wealth of Nations. Indianapolis: Liberty Fund, 1981.

Smith, Adam. 1790. The Theory of Moral Sentiments. Indianapolis: Liberty Fund, 1982.

Acknowledgement:

I thank Jason Briggeman for valuable feedback.

Timothy Sandefur criticizes Hayek for not making clear the distinction between a spontaneous and a constructed order. Furthermore, because all spontaneous orders also contain constructed elements, so that the difference between the two orders is not a difference in principle, but depends on one’s point of view, any criticism of a constructed order must be hopelessly ambiguous. Finally, given Hayek’s reliance in later writings on evolutionary theory, unless he were to commit the naturalistic fallacy (that is, to make the claim that, whatever evolves, is good), he has no grounds for criticizing constructed orders.

Sandefur could have made an even stronger case against Hayek. In his early writings Hayek talked about planning the general systems of rules under which individuals operate, which certainly mixes together the two concepts. Furthermore, in the third volume of the offending Law, Legislation and Liberty, the book in which Hayek criticizes constructed orders, Hayek offers a model constitution which is itself as bald an example of rationalist constructivism as ever existed.

How do we respond to this? One way is to agree with Sandefur that Hayek was on these matters simply hopelessly muddled. Another is to try to make sense of what he was saying, and for that, we need recourse to history.

In the 1930s and 1940s Hayek was attempting to revive liberalism in the face of calls for extensive central planning of the economy. The word “planning” was then very popular: the public saw it as the answer to all social problems. He talked about planning a system of general rules to show that the concept of “planning” need not exclusively mean central planning. But Hayek also disavowed laissez faire in these earlier writings. He thought that the government needed to provide a stable framework within which individuals acted. This is how he put it in “Freedom and the Economic System.”

We can ‘plan’ a system of general rules, equally applicable to all people and intended to be permanent (even if subject to revision with the growth of knowledge), which provides an institutional framework within which the decisions as to what to do and how to earn a living are left to the individuals. In other words, we can plan a system in which individual initiative is given the widest possible scope and the best opportunity to bring about effective coordination of individual effort. Or we can ‘plan’ in the sense that the concrete action of the different individuals, the part each person is to play in the social process of production — what he is to do and how he is to do it — is decided by the planning agency… The planning of the planners of our time… involves the idea that some body of people, in the last instance some individual mind, decides for the people what they have to do at each moment.

The last sentence holds the key to Hayek’s critique of central planning: that no central body could ever have the knowledge necessary to plan something as complex as an economy. In contrast, as Hayek demonstrated in his classic piece “The Use of Knowledge in Society,” a well-functioning free market economy allows the local knowledge of millions of individuals to be made available to the rest, allowing them to make better decisions.

Hayek maintained throughout his life that a market system, to work effectively, needed to be embedded in a host of other social institutions. In his later writings, however, the “twin ideas of spontaneous order and evolution” carried increasing emphasis. Rather than us planning or constructing those other institutions, some of them, he claimed, emerged on their own. The common law and a system of morals that promoted trade (he frequently invoked Hume’s three fundamental laws of nature: “the stability of possession, of its transference by consent, and of the performance of promises”) were chief among them.

In this later work Hayek was no longer criticizing central planning. Rather, he was worried that the liberal constitutionalism that he had described and advocated in The Constitution of Liberty was being undermined by all sorts of interventionist proposals, often promoted by coalitions of special interests, and usually cloaked in calls for “social justice.” It is probably worth recalling that in the United States in the decade that Law, Legislation and Liberty was published, Nixon imposed wage-price controls, the Department of Energy and the Environmental Protection Agency were created, and there were widespread calls for incomes policies.

But he was also trying to answer another question: how is it that the complex adaptive order that constitutes a market system ever emerged at all? After all, markets go against our instincts (that is, our hunter-gatherer heritage) and offend our reason (we think we can, through conscious intervention, improve on their flaws). Yet still they emerged. How? Hayek’s answer was that those groups that adopted certain practices and moral stances that promoted the spread of trade, and later the division of labor and specialization, and the invention of new products and processes, were more successful than those that did not.

Having made morals a product of evolution, however, Hayek apparently undermined any foundation from which to make normative judgments about orders of any kind. How does one deal with this?

I think that there are two possible solutions. One is to say that Hayek’s criticisms of constructed orders and his evolutionary account of the development of ethics were on two different levels. Hayek himself was a type of rule utilitarian, and his criticisms of constructed orders had to do with the bad consequences he thought they entailed. On the other hand, his evolutionary writings were a positive account of the origins, persistence, and functions of a system of ethics and of certain specific ethical norms. This also may hold the key for explaining his model constitution proposal. Here we must distinguish between rule proposal or design, and rule selection. Anyone, including Hayek, is free to propose new designs for rules. Rule selection, though, takes place through an evolutionary process: new rules and practices are tried out, and they succeed or fail. (It must be admitted, though, that the model constitution goes considerably beyond the sort of “piece-meal” proposals for change that Hayek typically viewed as acceptable. Another solution for this particular problem is to take him at his word, that it is only a model, a kind of thought experiment.)

Another way to make sense of Hayek is simply to assert that he was making no normative claims at all, that he was doing positive science. This would probably be Hayek’s preferred route, given that the Austrians always claimed to be following Weber’s strictures regarding Wertfreiheit. Thus when he criticized central planning, Hayek was actually claiming that, given the goals of socialists, central planning was not the appropriate means by which to reach them. Likewise, in criticizing the imposition of extensive planning on the already existing complex order that comprises “the great society,” he might as easily be read as saying that if you take this approach, you should realize that you will be condemning millions of people to relative deprivation, and in some instances to starvation and even death. That is a positive statement, not a normative one. If one wants evidence that bears on the truth or falsity of the claim, one might examine the history of North versus South Korea, or East versus West Germany, or take a trip to Robert Mugabe’s Zimbabwe, once the breadbasket of Africa, but now simply just another basket case.

In his discussions of spontaneous orders, sometimes Hayek was simply trying to make the point that they exist; that is, he was trying to counter the claim that any beneficent social order needed to be constructed. This view was widespread when he first was writing; the mania for planning was then ubiquitous, so it was a point worth making. In later writings, Hayek sometimes did say, let’s trust to evolved orders rather than constructed ones, but then allowed that sometimes we needed to make piece-meal changes, and he gave no criteria for deciding. On this point Sandefur is right to criticize him.

But it is a long way from there to Sandefur’s claim that, because there is no difference in principle between a constructed order and a spontaneous order, we are helpless to distinguish between them. On this, I would simply invoke Potter Stewart on hard-core pornography: I know it when I see it. When Paris gets fed though no one plans it, even though it involves millions of people acting on their own individual plans, I see such an order. When the firing of millions of neurons creates the consciousness required to plow through Hayek’s dense prose, I see one. When I read Bill Easterley’s (but not Jeffrey Sach’s) recommendations about how to deal with global problems, I see suggestions that depend on orders forming, on providing frameworks in which people are allowed to use their own local knowledge to improve things. Some things are just not that hard to see.

I want to thank Professor Hasnas for so eloquently describing my crucial point: Hayek’s critique of economic or political planning falls short because he “den[ies] any independent grounding for ethics outside of the process of social evolution and… attempt[s] to make purely formal and essentially vacuous values such as generality and consistency do substantive normative work.” Precisely. Hayek’s observations about spontaneous order are useful and important, particularly to counteract some people’s hasty assumption that economic or legal design requires a designer. But that observation must be, so to speak, part of this complete breakfast. Spontaneity itself is not enough; Hayek’s observations must be supplemented by a philosophically rigorous account of justice and human values. But, of course, once we appeal to such values, and use them as “an Archimedean fixed point on which to stand to criticize any of the rules of a spontaneously evolving legal order as unjust and to call for the reform of those rules,” what we are doing is rational constructivism. And Hayek’s descriptive account begins to fall apart when he tries to incorporate this into the process of spontaneous order. He can do so only by diluting the distinctions between spontaneous and constructed orders in such a way that it depends entirely on the observer’s point of view; then it means nothing and everything, and provides no foundation for a normative critique of rational constructivism.

I think a far more useful distinction than Hayek’s is offered by Randy Barnett, who, building on Hayek’s work in The Structure of Liberty, distinguishes between “centralized” and “decentralized” orders, and bases that distinction on the use of coercion. Hayek did not use this criterion, and I think for two reasons. First, because his definition of coercion was notoriously feeble, and second, because although he insisted on a principled, even “dogmatic” opposition to the use of coercion, such a principle is not “immanent” — it derives, not from the imperatives of spontaneous order itself, but from the kind of abstract rationalism that Hayek goes to such lengths to criticize. But Hayek gives no real reason for embracing non-coercion[1]; in his system it hangs arbitrarily, like a skyhook, from nothing.

Where I differ from Prof. Hasnas is that I continue to believe that Hayek has given insufficient ground for distinguishing a constructed from a spontaneous order. Indeed, the basic problem is that Hayek incorporates constructed orders into his definition of spontaneous orders, resulting in a sort of logical nesting doll or fun-house mirror in which any action can qualify as constructed or spontaneous depending on how one frames the issue.

Constructed orders, writes Hasnas, “have a designated final decision maker; spontaneous orders do not.” At first this looks like a good dividing line, but on closer inspection it really isn’t. Consider: Hasnas is not contending that only those orders with a single decision maker — say, the CEO at a corporation — qualify as constructed orders. Surely an order where final decisions are made by a committee are constructed. And, really, the final decisions aren’t made by the CEO, since he only exercises the authority conferred by the board of directors. Of course, the board of directors isn’t really the final decision maker either. The final, final decision is made by the shareholders who elect the board — they are the ones who “authorize” the board to authorize the CEO to decide how the firm will act. And yet… the shareholders themselves also aren’t really the final decision maker, since the makeup of the shareholding population is determined by the purchase and sale of stock, the real final decision is made by the stock market in response to the company’s sales figures. So the “final decider” that makes the corporation a “constructed order” is really… millions of consumers?

But we can just as easily reverse the equation. The actions of the corporate officers are really just part of the spontaneous order. The board of directors or the CEO, after all, act only in response to the information that comes to them from individual transactions (stock prices, the cost of raw materials and capital goods, and so forth); all they do is to make single decisions based on local information — in this sense, the decisions they make are only individual components of the spontaneous market process in exactly the same way that my decision to buy a coffee at Starbucks is only a single transaction based on my local information. In both cases, there’s a final decision maker — and yet in both cases, that decision maker is only making a single decision based on local information and preferences. All decisions are really just tiny drops in the sea of spontaneous order. So, once again, we find that the distinction between spontaneous and constructed order does not depend on anything that takes place within the scope of our observation — it depends only on how broadly we draw the circle of our observation. All transactions are simultaneously “spontaneous” and “constructed.”

This is not just a parlor game to play at particularly nerdy libertarian Christmas parties. The point is that terms like “decision maker,” “authorized,” and “decision” are not clear criteria. Who is the “final decision maker” in implementing a national health care plan? Such a plan must pass by two separate houses of Congress after months of negotiation by hundreds or thousands of participants; it must be signed by the president after consultation with teams of advisors and lobbyists; and, probably, it will be tested in the Supreme Court after review by teams of lawyers and lower court judges. The individuals who comprise these branches of government do not act for themselves; they rely on the advice of countless others, and respond to constituencies with significant political influence. None of them makes the “final” decision, and even then their decision is subject to change by voters. All of these officials are “authorized” to act (if at all) by millions of voters. None of these is a “designated final decision maker.” So a centralized government-controlled health care system isn’t a constructed order. But that hardly seems right.

Hasnas continues: “A single firm or state may consist of many independently functioning parts, but there is always some person or group of persons authorized to decide how the firm or state will act as a collective entity.” This is actually not true, as we have seen — even dictatorships have multiple heads of power who exercise authority on behalf of others who have power to limit them. (Dictators can be overthrown, after all.) But aside from this, Prof. Hasnas is unable to avoid the problem that by drawing the circle as broadly or narrowly as we wish, we can define the exact same action or entity as a constructed or spontaneous.

Consider Wal-Mart, the subject of a very interesting EconTalk podcast some months ago. Although Wal-Mart has a central decision making agency and a CEO, the company leaves many important decisions entirely to the discretion of store managers. This includes not only hiring and promotion decisions, but even decisions about discounts and sales. How do we apply the label “constructed” or “spontaneous” here? In one sense, it’s a constructed order — Wal-Mart’s internal “hands-off” policy was intentionally created by corporate staff who are authorized to change it tomorrow if they choose. And yet, in another sense, Wal-Mart doesn’t act “as a collective entity”: there is no central decision-maker.

This point is critical in one sense: Wal-Mart’s policy of leaving hiring and promotion decisions to local managers is the subject of an ongoing class-action discrimination lawsuit — the largest class-action lawsuit in American history. One of the central questions in the case is whether Wal-Mart’s hands-off approach qualifies as a corporate “policy” or not. (You can read my brief in that case here.)

More important to my point is that Hayek explicitly contemplates spontaneous order as including — indeed, depending on — constructed orders. In his essay “Kinds of Order in Society,” Hayek wrestled with some of the problems I’ve been talking about, and concluded that spontaneous order is the kind of order that arises between constructed orders interacting amongst themselves. This is sensible: all human action is intentional at some level, and the spontaneous order of the overall market is populated by the “constructed” orders that are the conscious and deliberate transactions between particular individuals. But if this is the case, it’s very easy to rationalize any particular act of rational constructivism by simply taking a broader view of the overall order. If one institution appears to be a planned, constructed order on up-close examination, just take three steps back and suddenly it’s just a part of an overall spontaneous order and therefore not only legitimate on Hayek’s criteria, but actually praiseworthy — just the kind of social experimentation that progress depends on.

So spontaneous order seems rather like the rather hapless God in the Bette Midler song “From a Distance.” In that song, God is “watching us from a distance,” and, indeed, from such a distance that the Earth looks just dandy:

From a distance, there is harmony

And it echoes through the land….

From a distance we all have enough

And no one is in need,

And there are no guns, no bombs, and no disease,

No hungry mouths to feed.

From a distance we are instruments

Marching in a common band…

In other words, if you take a broad enough view, even the worst conflicts and misery look like nothing more than the necessary ingredients in the whole complex spontaneous order. But a God who is so far away as to not see guns, bombs, disease, and hunger, seems rather negligent. In the same way, if we take such a broad view of the miseries of the world, we run the risk of falling into just the sort of Panglossian attitude that shrugs at humanity’s worst injustices.

Taking this perspective, a libertarian who objects to, say, the implementation of a statewide government-organized and government-run health care plan would be advised to stop, and instead look upon it from a distance. It’s just a single state running a single experiment in the overall flux of the national or world-wide market for medical services — such experiments are not only perfectly acceptable by Hayekian standards, but actually crucial ingredients in social evolution! “The existence of individuals and groups simultaneously observing partially different rules provides the opportunity for the selection of more effective ones.” And yet on the other hand, any attempt to free the health care market is also an experiment in the overall spontaneous order. Dr. Pangloss’s philosophy is not just morally vacuous, it’s also paralyzing: it can no more advise us whether to act or not to act than the concept of evolution can tell any particular lion to eat any particular antelope.

The fuzziness of the boundary dividing constructed and spontaneous orders throws into confusion any argument that spontaneous orders have better consequences than constructed ones. Prof. Hasnas writes,

the rules of just order — purpose-independent, neutral, universally applicable rules — evolved through customary/common law processes while almost all the rules designed to exploit or oppress others originated in legislation.

I would strongly disagree with this. To take only the limited example of race relations in the United States, one finds that rules designed to exploit or oppress minorities usually did not begin in legislation but were codified in legislation only after a long and dreadful life as social prejudices. No law created slavery; indeed, slavery seems like one of the more obvious examples of a spontaneous order. No central authority was ever responsible for implementing it or deciding how it should operate as a collective whole. The abolitionists, by contrast, were nothing if not rational constructivists. They wanted to radically redesign society on the basis of their preconceived notions of justice. And, in fact, the arguments that John Calhoun, George Fitzhugh, and others of the “positive good” school of slavery employed against abolitionists were based on anti-rationalism and a defense of “undesigned rules and conventions whose significance and importance we largely do not understand.” They argued that abolitionists were ignorant of the complicated details of the “southern way of life”; that freeing the slaves would impose tremendous unforeseeable costs; that the heart had reasons the head could not understand — indeed, that liberty led to social problems that could “not have been foreseen and pointed out by any process of a priori reasoning.” This was, Fitzhugh argued, “but another proof of the fallibility of human sagacity and foresight when attempting to foretell the operation of new institutions.”

The conflict between the supposedly “artificial” contractarian perspective of liberal rationalism and the static, hierarchical, “organic” perspective of conservative anti-rationalism has reverberated in politics since at least the French Revolution — from the debate between Paine and Burke to the zivilisation-kultur dichotomy of pre-war Germany. In the end, I believe there is far more blood on the hands of the latter. Centralized planning has certainly racked up a horrible human cost. But what I call the “romance of gradualism,” along with the mystique of loyalty, and the appeals to caste, race and supernaturalism that are all part of the anti-rationalist tradition have had and are still having far more wicked consequences. Hayek is right to be skeptical of reformers, and to be fair he acknowledged that the spontaneous origin of an order is no guarantee that the resulting order is just. But his reaction against rationalism goes much too far toward being reactionary, and his vague preference for viewing things “from a distance” and obeying rules whose significance we cannot understand casts a superficial aura of benevolence over historical scenes that, on closer inspection, are often brutal, cruel, and hideous. Thank God for nineteenth century rational constructivists who overthrew the complex spontaneous orders of slavery![2]

Prof. Hasnas also believes spontaneous orders are preferable because they are more quickly amended if they go wrong: rules that “are regarded as unsatisfactory by any significant portion of the population, such as those that privilege the interests of some groups over others or otherwise work harsh or unfair results, stimulate increased conflict,” and this “gives rise to increased litigation, which in turn increases the opportunity to try different rules.” There are three problems with this.

First, it hastily assumes that conflict will give rise to increased litigation. But unjust rules usually game the system precisely to prevent such challenges — such as the rule in nineteenth century California that barred the Chinese from access to the courts. That rule was not produced by legislation, but by common law courts acting exactly as Hayek prescribes: patching holes in existing rules with refinements inferred from existing rules that will preserve the existing order, receive general assent, and render the system more internally consistent.

Second, Prof. Hasnas is simply saying that because bad rules will lead to bad results, people will try to implement new rules. Obviously that’s so, but saying “well, it’ll all work out in the end” does nothing to help those who are suffering here and now. Injustice will end eventually, but only if we take the steps necessary to end it. And just as with the architect in my earlier example of the college sidewalks, any time a person takes a step to end an injustice, the Hayekian will accuse him of “rational constructivism.” Hayek tried to resolve this problem by incorporating reform into his picture of spontaneous order, but this does not work. People will “try different rules” only by constructing them. To describe their doing so as an example of spontaneous order is to commit the fallacy of petitio principii. But, of course, that fallacy is unavoidable given the logical fun-house mirror Hayek has given us. The question at issue is whether spontaneous orders are preferable to constructed ones, but Hayek holds that spontaneous orders are and necessarily must be composed of constructed orders. Pointing to the fact that rational constructivism can sometimes cure the injustices resulting from spontaneous order, and then calling such constructed reform part of the spontaneous process, is simply to beg the question.

Third, we return to the point where we began: the spontaneity of an order is not sufficient to guide us in making policy choices, either pro or con. We see this because Prof. Hasnas is forced immediately to employ normative language that finds no grounding in Hayek’s own arguments: he refers to rules that produce “harsh” or “unfair results,” and talks about a “significant” portion of the population. I agree that such normative criteria must enter the picture at some point, but they certainly do not originate in spontaneity qua spontaneity. Those values come from elsewhere, and it is they that give us the ground for judging the results of — and reforming — the spontaneous order. Indeed, these values are doing all of the real work in Hayek’s account of social reform. Without accounting for them in some way, they simply hang in the air like a lifeline, to rescue us whenever Hayek’s impersonal social forces create something that makes us uncomfortable. When we tug on that lifeline, we find that the other end is attached to rational constructivism. Prof. Hasnas began by referring to “purpose-independent” rules, but within the same paragraph began looking at the consequences of the rules to judge whether such rules are “harsh” or “unfair,” so that we might try different ones. This is rational constructivism, and if we incorporate it into the picture of spontaneous order, all we’re really doing is stepping back and looking at the “picture as a whole.” Yes, “from a distance,” it’s all a spontaneous order.

—–

Notes

[1] Actually, in The Constitution of Liberty, Hayek tells us that the reason coercion is bad is because it “prevents a person from using his mental powers to the full and consequently making the greatest contribution that he is capable of to the community.” This unpalatably collectivist justification for liberty directly contradicts the presumption of liberty that underlies classical liberalism. It also leaves unanswered the disturbing question: in whose judgment? If service to the community is the source and justification of individual liberty, then liberty is really only a privilege given to us by society, and revocable whenever it fails to serve that end.

[2] Anti-rationalists often point to the French Revolution as the prototypical example of rational constructivism gone haywire. There’s no debating that the French Revolution was in many ways a disaster. But there are two points that must be kept in mind. First, a Hayekian really has no logical basis for attacking the French Revolution, since it was presumably just a spontaneous attempt to reform rules that had proven themselves prone to cause conflict. Take a look at the Revolution “as a whole” and it’s not a case of rational constructivism. Second, when assessing the French Revolution’s cruelties, we must keep in mind how awful the situation was prior to it. As Mark Twain wrote,

There were two “Reigns of Terror,” if we would but remember it and consider it; the one wrought murder in hot passion, the other in heartless cold blood; the one lasted mere months, the other had lasted a thousand years; the one inflicted death upon ten thousand persons, the other upon a hundred millions; but our shudders are all for the “horrors” of the minor Terror, the momentary Terror, so to speak; whereas, what is the horror of swift death by the axe, compared with lifelong death from hunger, cold, insult, cruelty, and heart-break? What is swift death by lightning compared with death by slow fire at the stake? A city cemetery could contain the coffins filled by that brief Terror which we have all been so diligently taught to shiver at and mourn over; but all France could hardly contain the coffins filled by that older and real Terror — that unspeakably bitter and awful Terror which none of us has been taught to see in its vastness or pity as it deserves.

I hope my critique of Hayek’s notion of spontaneous order and of his attempts to draw normative conclusions from it are not taken as a complete rejection of Hayek’s work, or of the important insights he had. I don’t think any argument for economic liberty is complete without “The Use of Knowledge in Society.” And I find some of his arguments eloquent and powerful — I love his discussion of labor unions in The Constitution of Liberty, for instance, and his critique of the notion of “social justice” is excellent.

But Caesar had his Brutus, Linus Pauling had Vitamin C, and Friedrich Hayek had “spontaneous order.” His experiences in Europe go far, no doubt, to explain his anti-rationalism, and maybe he wrote as he did in an effort to appeal to the moderate left. But whatever his reasons for advancing the arguments he did, they just don’t work as a normative critique of economic or legal planning. It’s true that order can emerge, unplanned, from dynamic processes — but this is practically useless in advising any political leader or any voter or any consumer about any course of action. Worse, it is all too likely to become a rationalization for passively shrugging at injustice.

I agree with Professor Klein that in post-World War II Europe, intellectuals overwhelmingly believed economic planning to be the rational path to peace and plenty, and Hayek’s critique of planning addressed many of the sloppy fallacies in their arguments — that economic planning was more efficient and scientific, and so forth. But I disagree with his claim that Hayek was “significantly out of step with the modernists.” Hayek responded to economic planning by trying to formulate a self-contained argument that was rooted, not in ethical principles, but in system as such — and this was actually quintessentially modern. In fact, it is typical of Pragmatism to try to evade the conflicts between fundamentally incompatible ethical perspectives by reaching for some meta- level (“practical” or “realistic”) common ground. But this attempt invariably falls apart, if for no other reason, because that common ground turns out to represent very type of normative commitment that the Pragmatist set out to avoid. In other words, if you endeavor to formulate an “anti-ideology” (as some conservatives are fond of labeling their creed) you eventually discover that what you have is an ideology. At that point, you have a choice: either you can admit that you do have an ideological commitment after all, and account for that commitment — or you can embrace paradox and mystique, and camouflage the resulting injustices as social harmonies.

It’s this latter route that most anti-rationalists take; that’s why anti-rationalism and Romanticism are so often found together. And that’s the source of the haunting similarities between Hayek’s “reverence for tradition” and the cruel hierarchical politics exemplified by, for example, D.H. Lawrence’s infamous defense of the flogging of Sam in Dana’s Two Years Before The Mast. In his Studies in Classical American Literature, Lawrence described a scene from that book in which a sailor named Sam is flogged, much to Dana’s horror. But, Lawrence argued that “it is good for Sam to be flogged,” and that Dana’s indignation represents a constructed, rationalistic interference with the tradition of flogging that had grown up over generations in the Navy — a tradition Dana’s vulgar rationalism hadn’t the grace to comprehend:

Dana, as an idealist, refusing the blood-contact of life, leaned over the side of the ship powerless, and vomited: or wanted to… Sam was justly whipped. It was a passional justice… Mechanical justice even is a foul thing. For true justice makes the heart’s fibres quiver. You can’t be cold in a matter of real justice… Sam got no more than he asked for. It was a natural event. All would have been well, save for the moral verdict. And this came from theoretic idealists like Dana… rather than from the sailors themselves. The sailors understood spontaneous passional morality, not the artificial ethical.

I’m not saying Hayek favored brutality — obviously not — but the framework he provides is entirely in line with Lawrence’s position: that a rationalistic, artificial critique of the mistreatment of sailors is a foolish, hubristic interference with the spontaneous, anti-rational dynamic of naval discipline. Dana, like me, is a rational constructivist.

Hayek was nowhere near as sanguinary as Lawrence, but consider an example from the opening pages of The Constitution of Liberty. Hayek tells us that general rules “allow for gradual and experimental change. The existence of individuals and groups simultaneously observing partially different rules provides the opportunity for the selection of the more effective ones.” And then, in the next sentence, he advocates “submission to undesigned rules and conventions whose significance and importance we largely do not understand, this reverence for the traditional,” which is central to the process of social evolution.

By these precepts, I would imagine a Hayekian world to be like those cities with walled housing developments, each one of which is dominated by some religious or ethnic group, each observing partially different social rules: some beat their children, some abuse women, some oppress racial minorities, some flog sailors… Now, maybe in the end, this will all result in the selection of better social rules, but only if everyone has the right to exit the walled communities if they want to. It’s only the freedom of choice that makes competition work. But what do you do when a walled community refuses to allow its citizens to exit? If you require all these communities to let people exit, then you have committed yourself to a universal principle of justice. And where does that principle come from? It comes from normative concepts that do not arise spontaneously from the interaction of groups, and are not merely traditional or generated by the system itself. In other words, it means we must not just submit to undesigned rules and conventions whose importance and significance we largely do not understand!

This is why I don’t go after Hayek, as Prof. Caldwell suggests, for offering an ideal constitution in Law, Legislation, And Liberty. Of course he resorted to constructivism — it’s impossible not to, unless you conclude that everything is for the best in this best of all possible worlds.

No, Hayek was (fortunately) not willing to go completely wertfrei — the most worthless kind of freedom in the world. But he tried to have it both ways: to make arguments for freedom as a good — while simultaneously, and very modernly, trying to avoid contentious moral claims by arguing that the normative values came from the system itself.

And here’s where it gets dangerous. If you believe that values come from the system itself, then it’s very easy to fall into the argument that valuers, too, come from the system itself: that is, that moral truths are socially constructed — that their truth value is a function of history, rather than anything in the statements themselves. And if you make that argument, you end up, in all places, in the realm of historicism.

Now, it may seem odd to accuse Hayek of historicism, but I think there’s reason for it. Linda Raeder describes Hayek’s position as “value-centered historicism,” noting that his “passionate evocation of the transcendent significance of the person is starkly incongruous with his naturalistic-evolutionary justification of liberal values and principles.” Because he tries to anchor that significance in an historical account of values, Hayek ends up with the idea that the moral worth of human beings, and all other concepts of “good,” are just products of historical and social circumstance — that is, that we are valuable only insofar as society says we are. Indeed, Hayek goes far in this direction when he says:

The mind is embedded in a traditional impersonal structure of learnt rules, and its capacity to order experience is an acquired replica of cultural patterns which every individual mind finds given… [M]ind can exist only as part of another independently existing distinct structure or order, though that order persists and can develop only because millions of minds constantly absorb or modify parts of it.

Now, if individual personality, values, and patterns of thought are produced by the spontaneous order, so that they cannot stand outside the system and criticize it, but can only offer an “immanent” critique of the system in which they are embedded, then where does the individual get the ability to reach out for other kinds of values? Where do we get any universal pre-political standard of justice? Add to this Hayek’s argument that coercion is only bad because it means the individual is not as useful to society as he might be, and you’ve got serious trouble on the individualism front. Hayek — like his friend, Karl Popper — critically weakens his attack on historicism when he argues that individuals and their values are socially or culturally determined.

Be that as it may, my point here has only been to argue that there is no conceptual distinction between spontaneous and constructed orders such that constructed orders are bad and spontaneous orders good. As a descriptive matter, I think it’s unassailable that there can be orders that are the product of human action but not of human design. But that tells us nothing about whether we ought to change the orders that so arise.

It appears that Timothy Sandefur disagrees with me. There is certainly a lot of evidence for this in his response to my first posting. However, it is not clear to me how much Mr. Sandefur is disagreeing with me, how much he is disagreeing with Hayek, and how much the disagreement with either of us derives from a semantic confusion. Perhaps some distinctions would help clarify matters.

To begin with, I am willing to classify myself as a Hayekian in the sense that I believe Hayek’s scholarly work to contain several brilliant and incredibly fruitful insights that both advance our understanding of how the world works and supply useful premises in the argument for a free society. I believe his description of spontaneous order to be among these insights. I am neither a Hayek scholar — that would be Bruce Caldwell’s role in this exchange — nor a Hayek disciple — one who believes that Hayek discovered the unvarnished truth and everything he said needs to be defended.

I myself have criticized Hayek’s jurisprudential thinking and understanding of the English customary/common process.[1] I further recognize that Hayek was a rather bad moral philosopher. In his original essay, Mr. Sandefur points out that Hayek asserts that moral principles are a product of an evolutionary selection process while simultaneously and inconsistently employing externally grounded moral principles to “correct” the output of the evolutionary process and criticize rational constructivism. This is a frequently made objection to Hayek’s philosophical thought with which I agreed in my original posting. In addition, I pointed out that Hayek’s commitment to viewing moral principles as a product of evolution leads him to call upon purely formal values such as generality and consistency to do substantive normative work, which they are incapable of doing. Thus, if there is genuine, substantive disagreement between Mr. Sandefur and myself, it concerns the question of whether spontaneous order is a viable concept and whether there is a principled basis for distinguishing spontaneous orders from constructed orders.

The next distinction I’d like to draw is that between orders and actions. The adjectives “spontaneous” and “constructed” are designed to describe two different types of “orders.” An order is a systematic arrangement of items of a particular type or with some common feature or property. A spontaneous order is such an arrangement that arises without any guiding intelligence. A constructed order is an arrangement that is intentionally produced a guiding intelligence. The symmetrical crystalline structure of a snowflake is an example of a spontaneous order. A set of standing dominoes arranged to fall in a snowflake pattern when the first one is knocked over is an example of a constructed order.

These are facile examples of the two types of orders. Why? Because the type of items being ordered — ice crystals and dominoes — are inanimate objects with no wills of their own. Such items are not capable of independent action.

Things become more complex when the items being ordered are human actions. Human beings have free will and can act intentionally. The actions of individual human beings are almost always a product of a guiding intelligence — one’s own. Hence, individual actions are almost always “constructed.” When the items being ordered are human actions, what is being created is an order of intentional (i.e., constructed or planned) actions. Thus, a spontaneous order of human actions is an ordering of individual plans that arises without a guiding intelligence to coordinate them, and a constructed order of human actions is an ordering of individual plans that is itself a product of a conscious plan.

The development of language and the selection of media of exchange are often offered as examples of spontaneous order. In the case of language, individuals intentionally assign meanings to sounds in their dealings with each other, some of which, through repeated interaction, gain general acceptance among a particular community of people, and become a spoken language such as English. This occurs even though there is no overarching guiding intelligence making authoritative assignments of meaning to particular sounds. In the case of media of exchange, individuals select different items as stores of value, some of which, through repeated interpersonal transactions gain general acceptance among a group of people, and become the accepted medium of exchange such as gold generally or hogsheads of tobacco in early Virginia. Of course, both language and media of exchange may be consciously constructed as well, as examples such as Esperanto, Klingonese, the language created for the new movie Avatar, and various forms of government-created fiat money demonstrate.

My working definitions of the terms we are considering, then, are as follows. A spontaneous order of human actions is an ordering of intentionally undertaken or planned individual actions that occurs without the conscious coordination of any guiding intelligence. A constructed order of human actions is an ordering of intentionally undertaken or planned individual actions that is consciously created by a guiding intelligence.

With these distinctions in mind, let’s me see if I can identify the points of disagreement between Mr. Sandefur and myself.

Mr. Sandefur begins his response by stating:

I want to thank Professor Hasnas for so eloquently describing my crucial point: Hayek’s critique of economic or political planning falls short because he “den[ies] any independent grounding for ethics outside of the process of social evolution and… attempt[s] to make purely formal and essentially vacuous values such as generality and consistency do substantive normative work.” Precisely. Hayek’s observations about spontaneous order are useful and important, particularly to counteract some people’s hasty assumption that economic or legal design requires a designer. But that observation must be, so to speak, part of this complete breakfast. Spontaneity itself is not enough; Hayek’s observations must be supplemented by a philosophically rigorous account of justice and human values.

These represent points of agreement between us. However, Mr. Sandefur continues by stating:

But, of course, once we appeal to such values, and use them as “an Archimedean fixed point on which to stand to criticize any of the rules of a spontaneously evolving legal order as unjust and to call for the reform of those rules,” what we are doing is rational constructivism.

I do not believe that this statement follows from what precedes it. It seems to me that in making this assertion, Mr. Sandefur is conflating constructed orders with constructed actions.

We have already agreed that moral principles are not necessarily a product of evolutionary forces, and may be derived from externally grounded, reasoned philosophical positions. Hence, to the extent that any of us perceive that the results of a spontaneous order within which we reside diverge from our conception of justice, we have grounds to criticize them and call for reform. There is a sense in which one can call this “rational constructivism” since my individual position is a product of my own conscious rational design. But this is irrelevant to the question of whether the order within which I make my appeal to justice is spontaneous or constructed. As noted above, when we are ordering human actions, we are always ordering the conscious output of individual human intelligences. The order, as opposed to the actions of the individuals within it, is a spontaneous order just in the case there is no conscious human agency endowed with the authority to make a collective choice. The order is a constructed one if there is. In a spontaneous order, my rationally constructed appeal is successful to the extent it is accepted by other individuals in the order who act upon it. In a constructed order, my appeal is successful to the extent that it influences the agency of collective choice to decide in my favor.

Individuals always function on the basis of their “constructed” beliefs (and sometimes even on the basis of their “rationally constructed” beliefs), but recognizing this fact does nothing to “dilut[e] the distinctions between spontaneous and constructed orders in such a way that it depends entirely on the observer’s point of view; …” This will be a problem only if we hold rigorously to the proposition that ethics is necessarily a product of the spontaneous order process itself — a position that both Mr. Sandefur and myself reject.

I will accept some of the blame for Mr. Sandefur’s second disagreement with me. In my original essay, I carelessly employed the word “final” in describing the essential characteristic of constructed orders as having “a designated final decision maker.” This misleadingly suggests that there is some point in time at which questions are settled and no longer open for review and reform. As Mr. Sandefur points out, constructed orders can change over time as well as spontaneous orders. A more felicitous way of expressing my point would have been to identify the essential characteristic of constructed orders as “having a human agency authorized to make collective choices for the entire order.”

An implication of Mr. Sandefur’s observation is that it can make sense to describe constructed orders as “evolving.” The law of the United States certainly changes in response to the relative success of the various political interests group and rent-seekers who operate within the political sphere. Hence, it is fair to say that the distinguishing feature of spontaneous and constructed orders is not the presence of evolution in one and its absence in another. I did not mean to suggest that it was, but may have inadvertently done so by employing the term “final.”

The presence of some form of evolution in both spontaneous and constructed orders does not imply that there is no principled distinction between them. It may be that the same type of game is being played in each case — there is competition in both spontaneous and constructed orders — but they are being played in different ballparks. Competition in spontaneous orders occurs in the ballpark of individual choice; competition in constructed orders occurs in the ballpark of collective choice.

It is important to appreciate that there can be many different social orders that function at different levels. The question of whether an order is a spontaneous or constructed order is always relative to the particular order under consideration, as is the judgment as to which is more desirable. For example, consider a firm competing in a market within the United States on the planet Earth. If one focuses on the firm, the items being ordered are the employees working for the firm. This is a constructed order because there are identifiable persons authorized to make collective choices that bind the entire firm.[2] If one focuses on the market, the items being ordered are the individuals and firms competing for business. This is a spontaneous order because the arrangement of the order is determined by the individual choices of consumers and no one is authorized to determine who wins and who loses for the entire order.[3] If one focuses on the government of the United States, the items that are being ordered are the citizens of the nation. This is a constructed order because the ordering is done by collective decision-making processes.[4] If one focuses on the planet Earth, the items that are being ordered are the nation-states it contains. This is a spontaneous ordering because there is no agency invested with the power to make collective decisions for the world.

By zooming in and zooming out, Mr. Sandefur claims to show that spontaneous orders can be transformed into constructed orders and vice versa, and hence that there is no principled way of distinguishing them. I do not think he is doing this. I think he is simply transcending levels and looking at different orders. The firm is a constructed order if what is being ordered is its internal components. Zoom out one level and the firm’s rationally constructed actions are simply data points in the spontaneous order of the market. Zoom out another level and you are in a semi-constructed order where the items being arranged are the actions of the citizens of a nation. Zoom out once more and the citizens disappear and the items being arranged are nations-states. Whether one sees a spontaneous or constructed order changes, but that is because one is looking at different orders. In each instance, however, there is no difficulty telling whether the order being observed is a constructed or spontaneous one. This is why Bruce Caldwell can confidently assert that he knows a spontaneous order when he sees one.

A final note on this point. Mr. Sandefur and I are in agreement that spontaneous orders are not desirable merely because they are spontaneous. My argument for a spontaneous legal order — one in which the items being ordered are the rules of interpersonal conduct — is explicitly based on a comparative assessment of the incentives at work in spontaneous and constructed legal orders. Because the incentives in a spontaneous legal order tend to favor peaceful interaction and justice in the long term more than those in constructed legal orders, which grease the path to exploitation, I argue for the former. This argument is not generalizable, however. If the items being ordered are the world’s nation-states, I have reason to doubt that incentives at work in that system would favor peaceful interaction more than those in a constructed world order. On this level, the question whether a spontaneous or constructed order is preferable is an open one.

This brings me to Mr. Sandefur’s and my final area of disagreement. He claims to strongly disagree with my assertion that what Hayek called the rules of just conduct “evolved through customary/common law processes while almost all the rules designed to exploit or oppress others originated in legislation.” He offers as evidence against this the observation that slavery did not arise through legislation. I confess that the appeal to the example of slavery does not come as a surprise to me. I purposely employed the word “almost” in my assertion advisedly. A spontaneous legal order does not guarantee and will not supply a completely just legal order. As I mentioned in my original posting, at any point in time, it will be rife with injustice. Advocating for a spontaneous legal order entails abandoning utopian aspirations. In the real world, the relevant question is always the comparative one: Compared to what? But in this context, Mr. Sandefur’s example not only is not a refutation of my assertion, it is strongly supportive of it.

Mr. Sandefur states, “To take only the limited example of race relations in the United States, one finds that rules designed to exploit or oppress minorities usually did not begin in legislation but were codified in legislation only after a long and dreadful life as social prejudices.” Indeed. When was racial oppression codified in legislation? When it could no longer be sustained without it.

During the “long and dreadful life as social prejudices” when slavery was widely considered an acceptable practice, market and spontaneous ordered legal forces supported it. During that time, I didn’t notice much legislation enacted to end the exploitation. However, in the 19th century, when cracks began to appear in the legal structure upholding the institution of slavery due to the increasing erosion in people’s belief in its legitimacy, national legislation such as the Fugitive Slave Act and nationally binding rulings such as that of the Dred Scott case began to appear to shore it up. The abolitionists that Mr. Sandefur refers to significantly influenced public opinion regarding the legitimacy of slavery, but they were notable for their lack of success on the legislative front where they were opposed by entrenched political interests that benefited from slavery’s existence.

Following the Civil War, the legislation that flowed from the “constructed” legal orders of the states provided an additional century of racial oppression that was completely unattainable through market and common law forces. The surest sign of what a spontaneous order produces can be read off the face of contemporary legislation. Legislation, the embodiment of collective choice, is always enacted to achieve what cannot otherwise be achieved through individual action — in modern terminology, to correct “market failures.” Jim Crow legislation was enacted for precisely this reason — to address the difficulty in attaining effective racial oppression in the realm of individual choice.

A customary/common law spontaneous legal order can contain unjust or oppressive elements as long as the vast majority of the relevant community find them morally acceptable. Of course, under that assumption, there is utterly no prospect that a representative government will improve the situation through legislation. But as the consensus in support of the oppressive practices decays, a spontaneous legal order allows motivated individuals to find ways around it, and facilitates the gradual liberalization of the order. It is here that legislation usually makes its appearance as the politically powerful beneficiaries of the oppressive practice employ the mechanism of collective choice to oppose the liberalizing aspects of the spontaneous order. I am glad that the political struggle against official racial oppression was finally won by the “rational constructivists” that Mr. Sandefur praises so highly, but that victory can hardly justify support for the constructed legal order that gave us the decades of oppression that preceded it.

Mr. Sandefur writes,

Prof. Hasnas is simply saying that because bad rules will lead to bad results, people will try to implement new rules. Obviously that’s so, but saying “well, it’ll all work out in the end” does nothing to help those who are suffering here and now. Injustice will end eventually, but only if we take the steps necessary to end it.

This suggests that he has missed my point entirely. I think it is fairly clear that I have not advocated doing nothing to help those who are suffering or to end injustice. Indeed, we should all work as hard as we can to end injustice. But the question under consideration in the present context is whether a spontaneous or constructed legal order is normatively preferable. Will advocacy against injustice be more likely to be successful in system of rules that evolve without any identifiable human agency having the power to impose a decision on the entire order or in one in which there is such an agency? I have argued for the former. My position is that advocacy against injustice is more likely to be successful in a spontaneous legal order than in a constructed one.

I understand the allure of the latter — the temptation to swoop in with the power of legislation to right wrongs and eliminate injustice. I also find the image of Don Quixote inspiring. But I believe both to be fantasies. The mechanism of collective choice that allows one to dream of achieving justice now and once and for all equally lends itself to the achievement of exploitative ends, and the incentives in constructed orders favor the latter.

Advocating against injustice in an open-ended spontaneous legal order can be unsatisfying in that it often requires a protracted effort and produces only partial success. One has to accept that progress will be gradual and incremental, and that the ideal of justice cannot be rapidly achieved, but can be heartened that the progress is likely to be sustained. One advocates for a continuously evolving customary/common law legal order not because it is ideal, but because human experience teaches that we need a prophylactic against the temptation to use the power of collective choice to achieve our ideals.

The power to legislate gave us Jim Crow. Thurgood Marshall and Charles Hamilton Houston fought a decades long campaign to gradually undermine and destroy the injustice of this legislation through private lawsuit. I would not characterize their efforts as “doing nothing.” But I would suggest that their efforts might not have been necessary in a purely customary/common law legal order in which the power to pass such legislation in the first place does not exist.

—-

Notes

[1] See John Hasnas, Hayek, the Common Law, and Fluid Drive, New York University Journal of Law & Liberty 1:79 (2005).

[2] Mr. Sandefur correctly points out with his Wal-Mart example that constructed orders can permit decentralization and the formation of internal markets to some extent, and so can consist of a mixture of spontaneous orders within a larger constructed order. This is, in fact, the state of most real-world constructed orders since true totalitarian control is usually impossible. Nevertheless, the larger order remains an constructed one, and is easily identifiable as such.

[3] Once again, Mr. Sandefur can rightly point out that there are no pure laissez-faire markets, and that in the real world large areas of the market are carved out by government in which winners and losers are indeed determined by collective choice. But also once again, there is no difficulty identifying the portion of the market that remains free as a spontaneous order.

[4] Although, like Wal-Mart, there are large areas that are consciously permitted to remain free of direct control.

I believe I have made honest use of what I know about the world in which we live. The reader will have to decide whether he wants to accept the values in the service of which I have used that knowledge. — Friedrich Hayek, Preface, The Constitution of Liberty [1]

In his response to me, Sandefur writes that Hayek’s “arguments … just don’t work as a normative critique of economic and legal planning.” They don’t work as critique of every case of such planning, but, when we enter into Hayek’s liberal foci (again, The Distinction, the liberty maxim), they work against much of the statist folly and misadventure of his day and ours.

Sandefur posits walled communities and pleas for free exit, that glorious principle. And then asks: “And where does that principle come from?” Well, it must go way back, but, proximately, it comes from Sandefur. Sandefur cites system(i) — the nexus and legacies of the walled communities — and then adds himself (and, accordingly, the legacies he carries), augmenting system(i) and yielding system(i+1). No quarrels there. But if you want to do the spontaneous-vs.-rationalistic thing, you get a spiral — no First moment, no Last moment. Others put it in terms of circles of “we,” again a sequence in which each circle gets a subscript.

Sandefur quotes Hayek on the embeddedness of the mind, and infers Hayek to be saying that “patterns of thought … cannot stand outside the system and criticize it.” But speaking of “the system” is wrongheaded; we need subscripts on “system,” and it is wrong to infer Hayek to be saying someone cannot stand with at least one foot outside system(i) and criticize it. Sandefur’s critique is helpful as caution against some of Hayek’s muddy swirls and dubious ratiocinations, but not as challenge to his central drift.

In his final paragraph, Sandefur writes, “there is no conceptual distinction between spontaneous and constructed orders such that constructed orders are bad and spontaneous orders good.” As a matter of “every,” that’s correct. But, Tim, when we mind Hayek’s liberal foci, what about preponderantly?

In most policy conversations, an enlightened view holds that, mostly, more freedom, good; more coercion, bad. Hayek negotiated a way up and stood tall for that presumption.

—

Acknowledgment: I thank Jason Briggeman for valuable feedback.

Note

[1] Friedrich Hayek, Preface, The Constitution of Liberty University of Chicago Press, 1960, p. 6.

There’s an old joke about libertarians that goes, “How many libertarians does it take to change a lightbulb?” The answer: “None: if the lightbulb needed changing, the market would have taken care of it.” This joke highlights the problem I have with arguments based on spontaneous order. There’s no doubt that there are such things as spontaneous orders; they are the unintended patterns that emerge from the intentional actions of individuals who don’t really give much thought to the big picture. But the phenomenon of spontaneous order tells us nothing about how lightbulbs ought to be changed or not changed, because the only way to change lightbulbs is through intentional, “constructed” action.

Prof. Hasnas says that “A spontaneous order of human actions is an ordering of intentionally undertaken or planned individual actions that occurs without the conscious coordination of any guiding intelligence.” Exactly. Spontaneous orders arise out of planned, intentional actions, so the phenomenon of spontaneous order cannot counsel us against planned, intentional actions. Since constructivism is a component of spontaneous order, spontaneous order gives us no traction for a critique of planning.

That’s why the evolution analogy works: evolution is the long-term order resulting from countless individual actions of animals in the ecosystem. But we cannot draw normative conclusions from this descriptive account. Spontaneous orders emerge no matter what you do. Since spontaneous orders are the unintended “from a distance” consequences of intentional actions, whatever you do will result in some sort of big-picture effect that will then be properly described as a “spontaneous order.” This is true even if what you’re doing is really, really constructed and planned. That’s what I meant by my example of the accounting firms that do people’s taxes for them. Even if we assume the IRS code is a constructed order, it has still given rise to a spontaneous order of incredible complexity — everything from accounting firms to those people who sell refreshments to folks in line at the post office on April 15! Even totalitarian polities will generate spontaneous orders. Not long ago, I heard a refugee from the Soviet Union say that one difficulty of adjusting to life in the United States was that he had gained the habit of carrying large amounts of cash with him, because you never knew when you would find a queue forming at a store that just got a shipment of some item. That habit is as good an example of a spontaneous order as any. (Of course, if that seems too petty an example, the Soviet Union’s black markets and the entire system of nomenklatura were also spontaneous orders.)

What difference does it make if the distinction between spontaneous and constructed orders is really just a matter of degree? Professor Caldwell says,

I would simply invoke Potter Stewart on hard-core pornography: I know it when I see it. When Paris gets fed though no one plans it, even though it involves millions of people acting on their own individual plans, I see such an order. When the firing of millions of neurons creates the consciousness required to plow through Hayek’s dense prose, I see one. When I read Bill Easterley’s (but not Jeffrey Sach’s) recommendations about how to deal with global problems, I see suggestions that depend on orders forming, on providing frameworks in which people are allowed to use their own local knowledge to improve things.

But there’s a reason why Justice Stewart’s “know it when I see it” phrase is not the law of the land. (It appears in his concurring opinion in Jacobelius v. Ohio (1964)). It’s because such a vague definition can’t serve as a guide to action; it’s arbitrary. Indeed, as Justice Harlan wrote four years later, “anyone who undertakes to examine the Court’s decisions… which have held particular material obscene or not obscene would find himself in utter bewilderment.” The same is true of anyone who tries to decide what to do on the basis of spontaneous versus constructed order. (This was the basis of my critique of Easterly some time ago on my blog.)

Spontaneous order is a great descriptive tool for explaining how Paris gets fed even though nobody plans it. But it does not give us a foundation for a normative critique of constructed plans for feeding Paris. The conscientious Hayekian elected official is totally stuck when asked whether to vote in favor of, or against, any particular program to feed Paris. If he votes for it, he’s a constructivist because he’s imposing a top-down order… but since spontaneous orders arise from constructed orders, his yes vote is also an integral part of the spontaneous order; one of those crucial experiments Hayek praises. On the other hand, if he votes no, he’s a constructivist because he’s imposing his view of a just society on a complex system of interconnected social institutions, wiping them all away in service of his a priori conceptions of justice…and yet, since spontaneous orders will arise to fill the gap left by the lack of a government program, it is his no vote really serves the spontaneous order.

In saying this, I’m mindful of Aristotle’s warning that “it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probable reasoning from a mathematician and to demand from a rhetorician scientific proofs.” Economics necessarily deals in things that are so “for the most part.” But in Law, Legislation And Liberty and The Constitution of Liberty, Hayek is not writing simply as an economist: he’s writing as a lawyer, and he promises us a clear-cut conceptual distinction — he even comes up with Greek names (taxis and kosmos) and always speaks of spontaneous and constructed orders as though they are conceptually distinct; this distinction is crucial to his prescriptive sociology.

And yet, on closer scrutiny, all Hayek is really telling us is to “be careful” and reform things “piecemeal.” And this doesn’t help because “piecemeal” is a relative term. Any time a bill is offered to feed Paris, or to change the lightbulb, free marketers might object that this is a “constructed order,” and yet the rebuttal is obvious: no, it’s just one piecemeal, experimental component of a larger-scale spontaneous order. A government program to feed Paris is a piecemeal program seen from the perspective of France, or Europe, or the hemisphere, or the earth. Indeed, even a government program forcing you to replace lightbulbs is just an experiment in a higher-level spontaneous order, because it is only a piecemeal change when viewed “from a distance.” Such a law certainly generates new, unplanned orders, particularly seen from a worldwide scale. Unless you regard it as wrong for the government to tell you what lightbulb to buy, you cannot use the spontaneous/constructed order argument to oppose such plans. And, of course, Hayek gives us no grounds for arguing that coercion is wrong. For him, coercion is just as much a part of spontaneous order as anything else.

But my point here isn’t so much to attack Hayek as to defend rationalism — more specifically, to defend reformers who seek to implement constructed change in the service of philosophical values — to defend idealists. And on that score, let’s look at slavery as a constructed order. Prof. Hasnas argues that slavery was propped up by legislation in a reaction against social anti-slavery trends. True, but could a devout Hayekian oppose such laws? They were “framework” laws — not specific orders to particular people — devised to maintain the spontaneously generated social order. Indeed, it seems to me that abolitionism is as good an example of “market failure” as anything else: people were “stealing” valuable “assets” or encouraging them to run away or to violently rebel; that is “market inefficiency,” no? Banning anti-slavery pamphlets from the U.S. Mail, as the Jackson Administration did, served what Hayek called “[t]he preservation of an enduring system of abstract relationships, or of the order of a cosmos with constantly changing content.” Such a rule “fill[ed] a definite gap in the body of already recognized rules in a manner that…serve[d] to maintain and improve that order of actions which the already existing rules made possible.”

What’s more, you’d be hard-pressed to find a more “constructed” legal order than the post-Civil War work of the Radical Republicans, including the Fourteenth Amendment. The Radical Republicans sought to radically revise the federalist structure of the United States on the basis of abstract moral notions derived from the Declaration of Independence. If that isn’t rational constructivism, I don’t know what is! And, again, the complaint against abolitionists articulated by John Calhoun, George Fitzhugh, Jeremiah Sullivan Black, and others, was precisely that abolitionists were radical constructivists who wanted to overthrow the spontaneous order. Northern interlopers, they said, were destroying the complex, evolved southern way of life in the service of some preconceived picture of justice; Radical Republicans were, one might say, “swooping in with the power of legislation to right wrongs and eliminate injustice.” Radical Republicans very much intended to change the lightbulb, and I think we should all be happy that they did so.

So I agree with Prof. Hasnas that spontaneous order is an important concept — but it can only be a component in an argument for liberty that must be rooted in human values. Liberty is a good thing because it is right — not because it fosters spontaneous orders. Everything does that, one way or the other, and spontaneity itself goes nowhere and does nothing. It changes no lightbulbs. People have to change the lightbulbs, and they do so through intentional, rational, constructed action. The reason centralized planning and government coercion is wrong is not because it disrupts spontaneous order, but because freedom is a good, something to which all people are justly entitled. The reason government intervention in the lightbulb market is bad is because I should have a right to use what lightbulbs I want to. Yes, markets are remarkable phenomena, but the argument for liberty must be rooted on the sort of exogenous, and contentious, moral values of which Hayek was so suspicious.

I read Timothy Sandefur’s latest contribution to our on-line conversation with interest. I do not believe, however, that I am able to respond in an interesting way. It appears to me that Mr. Sandefur and I are talking past each other. We are using the essential terms of the debate in different ways, and apparently not addressing each other’s points. If you will forgive my use of cliches, from my perspective, Mr. Sandefur is simultaneously beating a dead horse and relentlessly attacking a straw man. I can only assume that he perceives my comments as similarly abstruse. Rather than continue to rehearse the same points, let me make a few remarks to explain my perception of the state of the debate, and then subside.

First, the beating of a dead horse. Mr. Sandefur repeatedly and relentlessly hammers home the point that the fact that an ordering arises through spontaneous processes carries no normative implications. To wit,

Spontaneous orders arise out of planned, intentional actions, so the phenomenon of spontaneous order cannot counsel us against planned, intentional actions. Since constructivism is a component of spontaneous order, spontaneous order gives us no traction for a critique of planning… .

That’s why the evolution analogy works: evolution is the long-term order resulting from countless individual actions of animals in the ecosystem. But we cannot draw normative conclusions from this descriptive account. Spontaneous orders emerge no matter what you do… .

Spontaneous order is a great descriptive tool for explaining how Paris gets fed even though nobody plans it. But it does not give us a foundation for a normative critique of constructed plans for feeding Paris…

Liberty is a good thing because it is right — not because it fosters spontaneous orders. Everything does that, one way or the other, and spontaneity itself goes nowhere and does nothing.

The problem is that no one is asserting the contrary. No one is arguing that spontaneous orders are good or right or have any normative force simply because they arise spontaneously. It is true that Hayek often wrote as though this was the case. But Hayek’s unsuccessful effort to jump the is-ought gap has long been noted. This is an old objection to his work and one with which we agreed at the outset of the discussion.

I, and others, argue for certain forms of spontaneous orders explicitly because human beings are more likely to realize important, independently verified ethical values through them than through constructed orders, not merely because they spontaneous. There is no need to repeatedly make a point that no one disagrees with.

Next, the different use of the essential terms. I am not sure how I can make this plainer than in my previous posting. Social orders are orders of human actions. Human beings usually act intentionally. Hence, social orders are orderings of intentional human actions. The modifiers “spontaneous” and “constructed” apply to orders, not actions. “Constructivism” is not a synonym for “intentional” that can be applied to individual actions. Constructivism implies an intentional construction of the overall order, not the “construction” of the intentional acts of the human beings who make up the order. When Mr. Sandefur argues that “constructivsm” is a component of spontaneous order, he is conflating intentionally undertaken individual action with intentional efforts to order the overall system of individual actions. To wit:

But the phenomenon of spontaneous order tells us nothing about how lightbulbs ought to be changed or not changed, because the only way to change lightbulbs is through intentional, “constructed” action…

Spontaneous orders arise out of planned, intentional actions, so the phenomenon of spontaneous order cannot counsel us against planned, intentional actions. Since constructivism is a component of spontaneous order, spontaneous order gives us no traction for a critique of planning… .

… whatever you do will result in some sort of big-picture effect that will then be properly described as a “spontaneous order.” This is true even if what you’re doing is really, really constructed and planned… .

People have to change the lightbulbs, and they do so through intentional, rational, constructed action.

The equivocal use of the term “constructed” to apply to both the intentional actions of individuals and the intentional efforts to order the actions of individuals introduces significant confusion into the discussion and obfuscates the distinction between the realms of individual and collective choice, which lies at its heart.

This obfuscation is illustrated by Mr. Sandefur’s example of the French politician,

The conscientious Hayekian elected official is totally stuck when asked whether to vote in favor of, or against, any particular program to feed Paris. If he votes for it, he’s a constructivist because he’s imposing a top-down order… but since spontaneous orders arise from constructed orders, his yes vote is also an integral part of the spontaneous order; one of those crucial experiments Hayek praises. On the other hand, if he votes no, he’s a constructivist because he’s imposing his view of a just society on a complex system of interconnected social institutions, wiping them all away in service of his a priori conceptions of justice… .

Of course it does not matter how the politician votes. He is playing in the ballpark of collective choice. Whatever he does he is engaging in constructivism because he is engaging in political decisionmaking, which by its nature will impose one rule on all. The alternative that is relevant to the subject we are discussing is not how politicians vote, but whether Paris is more likely to be effectively fed through political action or the actions of individual human beings functioning in the market.

Finally, attacking a straw man. Mr. Sandefur states,

But my point here isn’t so much to attack Hayek as to defend rationalism — more specifically, to defend reformers who seek to implement constructed change in the service of philosophical values — to defend idealists.

Such idealists need no defense, since no reasonable person is attacking them. The only party such idealists could need defense against is one who reads Hayek as asserting that no intentional action to change the status quo should be taken. But this is to again conflate criticism of intentional efforts to construct orders with criticism of intentional individual action to end injustice. Mr. Sandefur states,

Prof. Hasnas argues that slavery was propped up by legislation in a reaction against social anti-slavery trends. True, but could a devout Hayekian oppose such laws? They were “framework” laws — not specific orders to particular people — devised to maintain the spontaneously generated social order… . Banning anti-slavery pamphlets from the U.S. Mail, as the Jackson Administration did, served what Hayek called “[t]he preservation of an enduring system of abstract relationships, or of the order of a cosmos with constantly changing content.” Such a rule “fill[ed] a definite gap in the body of already recognized rules in a manner that…serve[d] to maintain and improve that order of actions which the already existing rules made possible.”

The straw man here is the “devout Hayekian.” I began my last post by distinguishing those who are interested in advancing Hayek’s work from Hayekian “disciples.” We began by recognizing that Hayek’s jurisprudential thought was defective. We agreed that Hayek erroneously tried to have the formal values of consistency and generality do substantive normative work. Continually reviving this position only to knock it down again is a classic attack on a straw man.

Mr. Sandefur defends the rational constructivism of the political action of the abolitionists — “The Radical Republicans sought to radically revise the federalist structure of the United States on the basis of abstract moral notions derived from the Declaration of Independence. If that isn’t rational constructivism, I don’t know what is!” It is unclear who he is defending it against. If one is playing in the collective choice ballpark, all one can do is engage in political struggle to try to influence the collective decisionmaker to do the right thing. Such action is noble and even inspiring. But as I pointed out previously, due to the incentives within the political system, it is usually unavailing, as it was in the case of the abolitionists. No one is criticizing such action within the political sphere. Advocates of spontaneous order are simply pointing out that we would be more likely to achieve justice if we didn’t enter that sphere in the first place. Once again, Mr. Sandefur is arguing against the straw man who argues that individuals should take no action to end injustice.

Mr. Sandefur concludes his posting with,

So I agree with Prof. Hasnas that spontaneous order is an important concept — but it can only be a component in an argument for liberty that must be rooted in human values. Liberty is a good thing because it is right — not because it fosters spontaneous orders… . The reason centralized planning and government coercion is wrong is not because it disrupts spontaneous order, but because freedom is a good, something to which all people are justly entitled. The reason government intervention in the lightbulb market is bad is because I should have a right to use what lightbulbs I want to. Yes, markets are remarkable phenomena, but the argument for liberty must be rooted on the sort of exogenous, and contentious, moral values of which Hayek was so suspicious.

These comments are entirely correct. No one other than the crude Hayekian disciple who remains unreasonably wedded the naturalistic fallacy at the heart of Hayek’s moral philosophy — one who finds it problematic that “the argument for liberty must be rooted on the sort of exogenous, and contentious, moral values of which Hayek was so suspicious” — would disagree with them. But this position was rejected in the first posting. Continuing to attack a position not held by one’s interlocutor is an archetypical example of attacking a straw man.

Addendum: Although not strictly relevant to this discussion, I cannot close without a defense of Potter Stewart, a great champion of the First Amendment. In making his famous statement that “I know it when I see it,” he was not proposing a personal and arbitrary standard of law. In fact, he was arguing against precisely such a standard. Earlier in his brief opinion, he recognized that obscenity “may be undefinable,” and hence that attempts to regulate it should be minimized. His statement was made in support of the decision not to regulate the movie in question. He was saying that no matter how the category of regulated speech is defined, the movie does not fall within it. The full quote is, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not it.”

Tim’s recent declarations for rationalism and idealism succinctly express his impetus against Hayek.

I think it’s misguided to think that there is Ethics, which tell us what is Right, and then there are “positive” understandings, to which we may then apply our ethical conclusions. I more see it as one big conversation, with ises and oughts naturally and tacitly interwoven and easily translated one into the other. So I can’t really enter in Tim’s mode of thought.

But in an important respect I second his stand for rationalism, and, correspondingly, some dissatisfaction with Hayek.

As I see it, we organize classical liberal thought as a web of statements. Those more central to the web may be called verities — important by-and-large truths.

The central verity of liberalism/libertarianism concerns the liberty principle, which says: In a choice between a dyad of policy reforms (one of which may be no reform at all), the reform that ranks higher in liberty is the more desirable.

The central verity of liberalism/libertarianism may be called the liberty maxim, which says: By and large, the liberty principle holds.

If Tim would drop the “by and large,” making the liberty principle the central verity of liberalism/libertarianism, then I think he’s mistaken.

But that aside, I, too, see the liberty principle as an analytic fulcrum and engine of inquiry. The liberty principle deserves the presumption, placing the burden of proof on the interventionists, even when they are defending the status quo. I favor that some — not all — liberals go on the offensive swinging the liberty principle at most anything standing in its way. I hazard to say that, in a significant way, Hayek thought so, too. He wasn’t one of those suited to proceeding in such fashion. But when Walter Block asked him to contribute a Foreword endorsing Block’s Defending the Undefendable, Hayek graciously did so and tipped his hat to Block’s regimen of “shock therapy.”

The approach — working off the liberty principle — is, however, often less patent and elementary than some think. In many areas of policy there are issues of disagreement between direct and overall liberty (for the distinction, see Klein and Clark, forthcoming). In those troublesome areas, if we define the liberty maxim in terms of direct liberty (which I think we usually do), the “by and large” qualification grows in significance. If we define it in terms of overall liberty, its application becomes much fuzzier. (Did bailing out the banks augment or reduce overall liberty? Did the United States pitching in against Hitler augment or reduce overall liberty?)

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Reference:

Klein, Daniel B. and Michael J. Clark. “Direct and Overall Liberty: Areas and Extent of Disagreement,” Mercatus Center Working Paper. Reason Papers, forthcoming.

I have attended a lot of Liberty Fund meetings on Hayek and have noticed that as a rule economists tend to like Hayek’s ideas much more than political philosophers (whether housed in philosophy or political science departments) do. The fascinating and instructive exchange between Sandefur and Hasnas has helped me to understand why. Hayek doesn’t answer the questions they feel are important.

For economists the existence of spontaneous orders is obvious. I am writing from home so do not have the texts in front of me, but I believe that Hayek in his 1933 inaugural lecture said something like recognizing the existence of such an order (though I think the word that he used there was “organism”) was the beginning of economics as a discipline. That sounds about right. That a whole new field studying complex adaptive systems has emerged since Hayek first began writing about these issues suggests at a minimum that economists are not alone. Because such orders when humans are involved contain intentional action which gives rise to unintended orders does provide complications, but I think that Hasnas’ careful discussion in his second reply answers the questions that Sandefur raised.

In his latest post, Sandefur writes,

In Law, Legislation And Liberty and The Constitution of Liberty, Hayek is not writing simply as an economist: he’s writing as a lawyer, and he promises us a clear-cut conceptual distinction — he even comes up with Greek names (taxis and kosmos) and always speaks of spontaneous and constructed orders as though they are conceptually distinct; this distinction is crucial to his prescriptive sociology.

This gets at, I think, a key reason why he and I read Hayek so differently. I am not trained as a lawyer and I never thought of Hayek in either Law, Legislation and Liberty or Constitution of Liberty as writing as a lawyer. (I do not have either text at home with me, so cannot check whether he anywhere “promised us a clear-cut conceptual distinction,” but perhaps Sandefur has a particular passage in mind that he might provide.) More important, I don’t think Hayek saw himself as doing so, either. That may account for why he does not set his problem up in the way that Sandefur would prefer, or provide answers to questions he’d like to have answers to.

Economists sometimes feel a similar frustration. Hayek always wrote at a very abstract level. A lot of economists who hope to find in his writings direct answers to specific policy questions will not come away satisfied. I challenge our audience to tell me what Hayek thought about anti-trust policy. I think that he had good reasons to keep things vague — the Mont Pelerin Society had members from countries who defined a liberal society very differently, and he wanted to keep them talking to one another. But in the end it is also true that Hayek was no policy wonk, and those who are would probably do better reading either Milton Friedman or the Cato Handbook for Policymakers (the latest copy of which I would be delighted to receive from our good host as a belated Christmas present!) than him. [I’ll see to it. — Ed.]

I’d like briefly to defend Hayek’s recourse to evolutionary theory and in particular his claim that our morals are a product of evolution. Both Sandefur and Hasnas see this as a weakness, whereas I see it as a strength, at least for what I think Hayek was trying to do. I read Hayek as a scientist trying to explain how we moved from a hunter-gatherer society to what he termed “the great society,” and also to explain why humans so often hate markets, even though the evolution of a market society was fundamental in the movement to the great society. The evolution of our morals also played a fundamental role. In the end, Hayek was no foundationalist when it came to morals. This was the reason why Bill Bartley, the Popperian philosopher who was the first General Editor of Hayek’s Collected Works and who as a follower of Popper argued that Popper’s whole enterprise involved replacing the problem of justification with that of criticism, was so attracted to Hayek’s late work, what Bartley called his evolutionary epistemology and his evolutionary ethics.[1] Bartley was pleased with Hayek’s lack of foundations. And it is why people with specifically normative concerns, people like Hasnas and Sandefur who are seeking for that elusive “Archimedean fixed point,” find this aspect of Hayek’s work so unsatisfactory. Hasnas finds Hayek to be a bad moral philosopher. I think it is more accurate to say that he was a good scientist and social theorist, and not really a moral philosopher at all, at least not of the foundationalist variety.

I’ll close by saying that the Austrian wertfreiheit tradition which feels so comfortable to those trained as economists — we tell ourselves that our task is not to make judgments, but to evaluate whether a particular set of means will achieve the ends that people say they want to pursue — is probably also part of the “problem.”[2] We consider this stance a “virtue,” but that is as far as we feel comfortable to go normatively.

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References

[1] For more on this see my paper “Clarifying Popper,” Journal of Economic Literature 29, March 1991, pp. 1–33, especially the section on “Popper on Critical Rationalism.”

[2]Although Robert Nelson is probably right that as the 20th century progressed the economics profession moved from “neutral policy experts” to advocates for efficiency in policymaking. See his “The Economics Profession and the Making of Public Policy,” Journal of Economic Literature 25, March 1987, pp. 49–91.

Bruce Caldwell’s recent posting prompts me to partially retract one of my earlier comments. Bruce points out the unfairness of my characterization of Hayek as a bad moral philosopher. He is correct in this criticism, although perhaps not for the reason he has given.

Bruce states that Hayek never thought of himself as doing moral philosophy, suggesting that it would be unfair to criticize him for doing it badly. There is some truth in this, but I think that the thrust of one of Sandefur’s attacks on Hayek was that his argument for spontaneous rather than constructed order relied on an implicit, undefended, and internally inconsistent commitment to the normative value of liberty. I believe Sandefur is correct about this, and because Hayek was arguing for normative conclusions without recognizing when he was crossing the is-ought barrier, I characterized him as a bad moral philosopher.

However, there is another sense in which this characterization may be genuinely unfair. As Bruce points out, Hayek was not a foundationalist. I should probably not own up to this in a public forum, but I have often sent some of my postmodernist colleagues unattributed quotations from Hayek, with which they expressed enthusiastic agreement, merely to be able to needle them later when I revealed that it was Hayek with whom they were agreeing. Now, I am not personally a postmodernist. I do not believe that it is “turtles all the way down,” to use the contemporary idiom. My basic position is a deontological one, and I think there are some moral fixed points. Sandefur’s comments led me to believe that he shares this approach. This may lead both Sandefur and I to disagree with Hayek’s non-foundationalist, postmodern approach to ethics, but it would be unfair to characterize him as a bad moral philosopher for holding it. Doing so would be to diss not only Hayek, but postmodernism as a school of thought. If Hayek is indeed a bad moral philosopher, it is not because of his postmodernism, but because of his lack of perception regarding the underpinnings of his own arguments.

I hope it is clear from my earlier remarks that criticizing Hayek for being a poor moral philosopher, legal historian, or jurisprudential thinker is hardly criticism at all. It is unfair to expect him to have been a Renaissance man. His contributions in his field of expertise, economics, completely overshadow any overreaching in the fields in which he was, by his own admission, an amateur.