Is “Know It When I See It” Enough?

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.

Also from This Issue

Lead Essay

  • Four Problems with Spontaneous Order by Timothy Sandefur

    In his lead essay, lawyer and legal theorist Timothy Sandefur proposes that Friedrich Hayek’s understanding of law and justice is flawed: Spontaneous order may be a descriptively accurate concept, but it has little or no effective normative content. Depending on how one chooses to focus, those who wish to reform a spontaneous order are either constructive rationalists – thus, outside the order, and presumptively bad – or they are manifestations of the spontaneous order itself, which changes over time. He suggests that the Hayekian approach to legal reform is simply “be careful,” and that this is not terribly helpful advice.

Response Essays

  • Four Solutions to Sandefur’s Problems by John Hasnas

    In his response essay, John Hasnas offers solutions to Sandefur’s problems. He suggests that genuine spontaneous orders can be recognized as having no final decision makers, and hence as recognizing a multitude of individual choices. Constructed orders have a final decision maker, and do not respect individual choice. The normative benefits of a spontaneous order are therefore clear: It offers a greater scope for peaceful cooperation, while tending to reduce coercion incrementally. Still, Hasnas admits, spontaneous orders will always be “riddled with injustice,” in part owing to our own limited knowledge and virtue. He suggests that one key missing insight helps rescue much of Hayekian legal thought: the notion that laws, too, respond to market forces.

  • Liberty between the Lines in a Modernist Age by Daniel B. Klein

    Daniel Klein argues that much of the fuzziness in Hayek’s writing was strategic – designed to bring lapsed liberals back into the fold, or to appeal to people who would never accept an unvarnished liberalism. Still, Klein finds great value in Hayek’s work. He argues that, while out of fashion at the time, Hayek’s own willingness to be indeterminate, and to embrace indeterminateness, was both consistent with the Smithian understanding of the social order – and predictive of some of the best work being done today in economics and in other social sciences.

  • Making Sense of Hayek on Spontaneous Order by Bruce Caldwell

    Bruce Caldwell proposes two solutions to Sandefur’s problems. The first is to acknowledge that Hayek was a rule utilitarian, albeit one who recognized that the rules we have inherited are the products of a spontaneous order. The second is to claim that Hayek wasn’t proposing any normative conclusions at all – he was simply making observations in a value-neutral way, as might befit a member of the Austrian School, which was deeply influenced by Max Weber’s ideal of a value-neutral social science. Both approaches have their strengths and weaknesses, Caldwell admits, yet in the end he cannot accept Sandefur’s claim that there is no meaningful distinction between spontaneous and designed orders. Although the difference can be difficult to put into words, we know them when we see them.

The Conversation