There is a widespread myth about the word ‘liberty’, a myth propagated by philosophers from the “left” and “right”, by conservatives, radicals, modern liberals, and classical liberals.

The myth begins with a distinction:  Liberty takes two basic forms: negative and positive.  Negative liberty concerns the absence of constraints, impediments, or interference.  For instance, a person has freedom of property—understood as a negative liberty—if others may not take her property or interfere with her use of it.  In contrast, positive liberty concerns the power or capacity to do as one chooses, or the power to act autonomously.  A person has freedom of property—understood as a positive liberty—if she actually owns and controls some property. Bill Gates and I both have the negative liberty to own a yacht, but only Gates can afford a yacht.  He has the power to do something I cannot, and in that respect, he is more free.

Now for the myth about liberty.  The myth holds that negative liberty is the special concern of classical liberals and libertarians, while positive liberty is the special concern of Marxists, socialists, and modern liberals.  Many classical liberals reject positive liberty, saying that the power to do as one pleases or to make autonomous decisions, however valuable, are not really forms of liberty.  If it were, this would automatically license government to do whatever it wants in an attempt to force us to be free.  In contrast, many Marxists complain that if liberty is just about the absence of interference, then liberty will not be valuable or meaningful.  Negative freedom, they say, is the freedom to be poor, to be unemployed, and to sleep on public sidewalks.  Marxists might say, no one interferes with the homeless person, but he is not free in any meaningful sense.  On these issues, the classical liberals in question are wrong, as are the Marxists.

Isaiah Berlin is a principal exponent of the myth.  He might even be its originator.  After distinguishing between negative and positive liberty, Berlin argued that the two concepts of liberty are not merely different conceptual categories, but rival political ideals, with conflicting implications about the proper role and scope of government.  The assumption that different conceptions of liberty entail different political regimes recasts the semantic issue (“What is liberty?”) as a political one, where the debate is not merely about how to use the language but about how to use the police.

The myth is perpetuated because both sides to this debate make a common assumption: Liberty—whatever that is—is to be promoted by government in a direct way.  Both sides agree that government has the job of promoting liberty (whatever liberty turns out to be), and both sides agree that the government should promote it in a direct manner.

When we say government should promote some value, it could do so directly or indirectly.  The distinction is best illustrated by an analogy.  Suppose you think government’s job is to promote commerce.  A government might attempt to promote commerce directly, by creating new corporations, offering subsidies and grants to businesses, providing tariff protections, and buying products, or indirectly, by providing a basic institutional framework (such as the rule of law, constitutional representative democracy, courts, and a well-functioning property rights regime).

On the assumption that government should promote liberty directly, it’s vital to decide which kind of liberty is the real one, or the more important one.  On this assumption, determining that ‘liberty’ is best analyzed as “the capacity to choose autonomously for oneself” really would license government to force us to be free.

Yet, this assumption is a bad one.  Identifying a role for government—or any other institution—as a protector or promoter of liberty requires a real argument.  It requires that we examine historical, economic, legal, and sociological evidence to determine how well (and it what way) government can do the job.  Government gets the job of promoting a particular kind of liberty a particular way only if government is best qualified for that job.  We discuss this point further below.

Positive and Negative Liberty

Berlin coined the positive/negative liberty distinction.  (In fact, his use of the terms was somewhat different from the way we characterized them above.  However, the terms have come to be used in ways slightly different from Berlin’s original meanings.)  The negative/positive distinction naturally suggests that the categories of negative and positive liberty are supposed, jointly, to exhaust the possibilities. Not so. Berlin says historians documented two hundred ways of using the term, and he is writing only about two central ones.  Below, we list some of the ways we have seen people use the term ‘liberty’.

Negative Liberty

(a) Hobbes describes liberty as an “absence of external impediments.”[1] On Hobbes’s view, any obstacle whatever is an impediment to liberty.

(b) More specifically, we can define ‘liberty’ as an absence of impediments imposed by other people.

(c) Even more specifically, we can define ‘liberty’ as an absence of obstacles deliberately imposed by other people.

(d) Or we can define ‘liberty’ as an absence of obstacles wrongfully imposed by other people.

On a negative conception of liberty, it will be a matter of historical contingency whether a given liberty makes for happier or healthier or wealthier lives. Negative liberties are not guaranteed to make us better off, but neither is vitamin C, or exercise — so guarantees can be beside the point. The point of negative liberty has less to do with what liberty guarantees and more to do with what liberty gives people the chance to do for themselves.

Despite the lack of guarantees, the social sciences and history may well reveal that respecting negative liberties has a long, successful, non-accidental track record of making for better lives.  It may turn out that the most effective way to promote positive liberty is to protect negative liberty.  In any case, we can’t settle a debate about what negative liberty does for people by conceptual analysis alone. [2] We need to investigate what happens to people when negative liberties are reasonably secure, and what happens when they are not.  That is, if you want to know how valuable negative liberty is, you need to get off the armchair and go check.

Positive Freedom

(e) In a more positive vein, we can define freedom as a power to do what we want. Berlin would reject this as an analysis of political freedom (whether positive or negative), except in cases where one’s inabilities were caused by other people. [3] Still, even if such inabilities have no bearing on political freedom, they remain a part of the conceptual landscape of positive freedom.

Even on this positive, capacity-oriented, view of freedom, though, it remains a contingent matter whether increasing freedom makes for better lives. As children, and even as adults, some of our wants are self-destructive, and the power to satisfy our wants needn’t be good for us. Whether it is good for us will depend on the nature of our wants and on our level of maturity.  (Note: We should avoid the heroic leap of inferring that if the power of satisfying certain of my wants is bad for me, then it would be better for me if bureaucrats and police had the power to stop me from satisfying these wants.)

We can’t settle any debate about what positive liberty does for people by conceptual analysis alone.  We need to investigate what happens to people when positive liberties are present, and what happens when they are not.  In other words, if you want to know how valuable positive liberty is, you need to get off the armchair and go check.  We can easily imagine a world in which people have lots of positive liberty but remain miserable.  However, as a matter of fact, it may be that when people have positive liberty, they tend to be happy.  At any rate, philosophy cannot settle this debate.

(f) Moralizing the previous definition, we can think of freedom as a power to do what is right.

(g) Or we can define ‘freedom’ as a power to do what is right, free from all temptation to do otherwise.

(h) We note the possibility of a whole family of related conceptions according to which liberty is a power to do what we want, without self-imposed baggage (in other words being free of commitments or, more generally, free of plans, promises, hang-ups, and self-conceptions that no longer fit the person one has become).

An awkward, and by no means merely theoretical, puzzle is highlighted by this conception of positive freedom. Namely, we could have real choices and still be thwarted by factors like insufficient motivation, insufficiently independent judgment or insufficient information about our options, about our capacities, or – for that matter – about the authenticity of our goals. We might want too much, or too little, to be able to deal with our world of options as it is. In sum, not all the impediments to freedom are external. Psychological freedom, and how it relates to other forms of freedom, is the subject of the final chapter of our new book, A Brief History of Liberty.

We continue to speak of positive and negative liberty, but we remain aware that, as Berlin and as his critics stressed, positive versus negative liberty is a false dichotomy. Negative and positive liberty can themselves be viewed as clusters of related concepts, and there are conceptions of freedom such as Philip Pettit’s conception of freedom as non-domination that straddle the categories. [4]

Picking a Conception

People use the term ‘liberty’ to refer to a range of different things.  Time-honored conceptions of liberty tend to be time-honored for a reason. They play different, often complementary roles in common-sense thinking. There is value in identifying the essence that these various conceptions all share, but there is also much to gain from being aware of the differences.  Each of these freedoms is something people have for good reason struggled to secure.  One is concerned with liberty in all such contexts, but the concerns one aims to mark by using the word are only related, not identical.

Some theorists think a minimal set of protected negative liberties is all we need in order to launch a society that, over generations, produces explosive gains in positive liberty. Other theorists seek guarantees and do not find them in a system of mere negative liberty. I might be free from government interference, free from oppression by a rigid caste system, and so on, yet I might remain unable to do much because I am poor.

Such issues are real, so it would be a shame to let debate about negative freedom’s real effects degenerate into a terminological dispute. Perhaps, as a matter of fact, negative freedom often leads to poverty.  How would we know?  Manipulating definitions would not tell us much. The point of defining terms is not to cut off but rather to facilitate debate: not to stipulate that negative liberty leads by definition to prosperity, but to be precise enough to make a question answerable. For example, where there are fewer obstacles to seeking employment of one’s choice (fewer migration restrictions, fewer licensing or union membership requirements), are there fewer unemployed people? If so, then we can infer (not in the way a logician deduces but rather in the way a scientist guardedly infers causal connections from empirical regularities) that negative freedom is in that respect positively liberating. We can ask well-defined questions about the consequences of specific forms of negative freedom, such as the freedom from trade restrictions or from state-mandated religion. If we can document trends, making the debate less about whether a trend is real and more about why the world sometimes departs from it, we have made progress in lowering barriers to understanding — which is what we realistically hope for from philosophy.

The Role of Government

Simply acknowledging positive liberty as a valuable species of the genus liberty does not commit us to any particular view about what regime promotes it best. We share Berlin’s concern about giving governments a license to do whatever it takes in order to promote positive liberty. (In the real world, to give government officials the power to do x is to hope that officials will use it to do x, knowing that, no matter who actually ends up holding such office, the person in question will duly pay lip service to doing x, then will use the power for purposes of his or her own.) None of the conceptions of freedom discussed earlier entails that it is a government’s job to secure that kind of freedom. Defining terms cannot settle a government’s proper role as protector or promoter of particular liberties.

Whatever Constant and Berlin meant to be doing by warning that different conceptions of liberty are also different political ideals, the takeaway value is not that different conceptions of liberty automatically translate into different government mandates, but rather that naïve conceptions of what is possible or what is at stake can leave people vastly overconfident about the likelihood of achieving a result by creating the political power to obtain that result by force.

Many people think that government’s job is to guarantee that we achieve a satisfactory level of liberty.  However, there is a difference between ‘guaranteeing’ as rendering inevitable (as when an economist says doubling the minimum wage would guarantee rising unemployment) versus ‘guaranteeing’ as when the government expresses a firm intention.  Clearly, guaranteeing something in the latter sense is no guarantee in the first sense.  Imagine a world where every time a government guarantees that people will achieve a given level of welfare, an evil demon makes sure (guarantees in the other sense) that people do not.  In that world, if you wanted people to be well off, you wouldn’t want to issue guarantees.  You’d permit people to be badly off, because that would be their only chance to prosper in that demon-plagued world.

Of course, we don’t live in a world of evil demons, so perhaps that is irrelevant.  Yet many real factors can and do disrupt, corrupt, or pervert our best-laid plans and guarantees. Therefore, imagining a world devoid of corruption and of unintended consequences—as some theorists like to do— is no more interesting than imagining a world of evil demons. We have to check how well legal guarantees work in our world.  We want governments to issue guarantees only to the extent that such guarantees work.

Only so much of practical consequence hangs on how we define our terms. By contrast, a lot depends on what we want from our lives and from our communities — whether we want to be free to stand or fall by our own merit, or whether we want to be free from the risks and costs that go with personal responsibility. A lot depends on how powerful and unconstrained we want our government to be, which in part turns on how confident we are that it will be used by, rather than against, our children.

We think both negative and positive liberty matter.  Negative liberty matters in part because it is a highly effective, if imperfect, way of promoting positive liberty. The result of freedom of thought, of freedom of association, of the division of labor within firms and of the specialization of roles that evolves between firms is that society becomes an unimaginably complex web of cooperation, moving ever further away from individual self-sufficiency. Although it may sound somewhat paradoxical, this is actually a contribution to positive freedom, because, as particular roles within society become redundant, a given individual grows less dependent on particular providers of a given service. Freedom in the positive sense can and sometimes does burgeon along with the increasing complexity of this web of interdependence. A Brief History of Liberty is a story of those preconditions of real choice slowly coming together.

Notes

[1]  Thomas Hobbes, Leviathan.  Indianapolis: Hackett  (1994): 79. The context is that Hobbes is describing the impediments to the Right of Nature as the liberty of people to do whatever they judge to be most conducive to self-preservation.

[2] We acknowledge the possibility that conceptual analysis alone might establish a given liberty’s intrinsic value.

[3] Berlin says this in a discussion of negative liberty, but he never suggests he would categorize such inability as a lack of liberty of any kind.

[4] Pettit, Philip  (1997) Republicanism: A Theory of Freedom and Government.  New York: Oxford University Press.

This essay first describes some of the problems of trying to define “terrorism,” taking the view that “terrorism” is used to describe “violence” that is “political” but is only selectively used to depict some such instances. Then it argues that the continued use of the term is creating the very phenomenon that we are attempting to prevent. In conclusion, it is posited that, while there is a very real threat of political violence, the current responses are disproportionate, leading to widespread erosion of civil liberties and human rights. Examples from the war in Northern Ireland will be used to illustrate the argument, as this is both my area of expertise and it provides a context from which policy and lawmakers can learn — however, this is by no means to suggest that all instances of political violence are the same.

The first problem with the term is the notion of terror and whether or not it should be central to the concept of terrorism. Its origins can be traced back to the eighteenth century when the new French state, following the uprisings of 1789, used organized and systematic terror to deal with its enemies. The specific aim was to cause extreme levels of fear among opponents. Many would argue that terror must be a key component to any definition of terrorism. Anyone who has been in a pub or city centre when a bomb, placed by the IRA, has exploded understands only too well the feeling of fear and panic. Similarly, anyone who has been informed by the police that they were on an Ulster loyalist hit list understands the feelings of constant and unremitting fear and expectation.

Few, therefore, would disagree that the purpose of many acts or attempted acts of political violence is indeed to cause terror. But there are many different circumstances in which people experience terror that are never defined as terrorism. For example, the daily personal violence experienced by women in abusive relationships is not defined as terrorism but by the quaint expression “domestic violence,” although in quantitative terms domestic violence does much more harm, measured by death and physical injuries, than terrorism. Moreover, as Richard English, an expert on the IRA and author of an excellent recent book, Terrorism: How to Respond, has asked: “is the deliberate creation and use of terror actually more central to what we usually consider terrorist violence than it is to other kinds of politically related, violent acts?” He points out that the “Shock and Awe” assault on Iraq in 2003 would have been far more terrifying that an ETA or IRA bombing. Moreover, he suggests that there is much more to terrorist forms of violence than just terror. Propaganda, political mobilization, and destruction of economic structures, for example, are all significant. The word terrorism fails to capture these broader dimensions of political violence and distorts an understanding of the different forms of the phenomena we are trying to understand.

The second problem with the term is its ambiguity. This can be seen in its highly selective usage during the conflict in Northern Ireland. The political violence perpetrated by the IRA was always labeled as terrorism by the British government. Yet identical types of violence by loyalists were seldom given the same label. Under the Prevention of Terrorism Act, the Secretary of State had the power to ban selected organizations. The IRA was banned but the main loyalist paramilitary organization, the Ulster Defence Association (UDA), which was responsible for the murder of hundreds of Catholics, was not banned until 1992 — twenty four years after the conflict started. The security services were also responsible, either directly or indirectly, for many acts of terror leading to the deaths of hundreds of people. Yet their behavior and activity was never labeled as terrorism. Similarly, IRA members, but not UDA members, who committed violent acts were always labeled terrorists. Time also adds to the confusion: people once labeled terrorists in Northern Ireland are now called politicians following the 1998 Belfast Agreement.

Research suggests that there are now over one hundred different definitions of terrorism. Most countries have their own definition and even within the same country, various sections of government define the phenomenon differently, as for example in the United States. Definitions also shift with time. In the United Kingdom, the Prevention of Terrorism, Act of 1974 defined terrorism as: “the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear.” It failed to define what was meant by violence or political ends and could easily embrace, for example, violent activity on a picket line of striking miners. In 2000 the 1974 definition was replaced by a much more complex one, covering five sub-sections in the legislation. Instead of elucidating the notion, the new lengthier definition is even less clear.

A third problem with the definition is that it generally excludes any reference to violence perpetuated by states. Although the word terrorism has its origins in the activities of the French state, the term has been increasing used to cover only the activities of non-state actors. As Alexander George pointed out in his book Western State Terrorism: “terrorism is so often presented as the anti-thesis to the liberal state thereby suggesting that liberal states are incapable of supporting or engaging in terrorism.” The empirical evidence, however, suggests otherwise. For example, the United States has long supported, sponsored, and perpetrated terrorist incidents around the world in support of its imperial interests, leading Noam Chomsky to describe it as “a leading terrorist state.” The trail of terror, including murder, torture, rape, kidnapping, and the overthrow of elected governments, in which the United States has been involved either directly or indirectly over the years, is well-documented and makes it a nonsense to restrict the notion of terrorism to simply non-state actors. More importantly, this history of state inspired terror is crucial to any understanding of the political violence directed towards the United States.

Similarly, many of the activities of the police and security forces in Northern Ireland could easily be captured within the term terrorism: the use of five interrogation techniques, which many considered amounted to torture, on a selected number of people picked up during internment in 1971; the shooting dead of 14 unarmed civilians following an anti-internment march in Derry in 1972; the activities of a south Armagh gang, which included security forces personnel, who were involved in bombings and assassinations in the mid to late 1970s; or the assaults by the police on suspects during prolonged interrogation.

Much of this government instigated terror, however, was overshadowed by the violence that emerged in the new security strategy introduced in the early 1980s. Without any public or parliamentary debate, and on the basis of a document prepared by a senior official in the secret services (MI5), the Thatcher government changed the focus of policing in Northern Ireland from the prevention and detection of crime to the gathering of intelligence. The recruitment and use of informers became the sine qua non of policing. At the same time, the Army, through what was euphemistically called the Force Research Unit, expanded its use of agents. By the late 1980s there was widespread collusion between the security forces and assassins in both the IRA and UDA, leading to the deaths of many innocent people, Protestant and Catholic, creating terror in both communities. This then was a terror in which the state took a part, both against and alongside those labeled “terrorists.” The rule of law was secretly and systematically subverted in the belief that the means justified the ends.

A fourth problem with the term terrorism is that it is so emotionally charged and pejorative that it is difficult to have a rational debate about the risk and harm stemming from political violence. The issue is further compounded by the fact that many people working in the police and security services, as well as politicians, have a vested interest in distorting and talking up the risk. This is shown in John Mueller’s excellent book Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats and Why We Believe Them. As he points out, the number of Americans killed by international terrorism since 1960, including 9/11, is about the same as the number killed in the same period by severe allergic reactions to peanuts, by lightning, or by road accidents caused by deer. In addition, since then it is estimated that probably more Americans have lost their lives on the roads than were killed with the collapse of the twin towers — their deaths caused by a decision to drive rather than to fly. None of this empirical detail, however, has prevented the United States from going to war in two countries and spending billions of dollars on the “war against terror.”

A final characteristic of the notion of terrorism is its discursive aspect. It functions ideologically to reinforce and reify the existing structures of power in society, as Richard Jackson has pointed out. It disguises the role of states and particular political elites globally. There is a shared set of assumptions about the definition, the nature, causes and responses to what is labeled as terrorism. This “knowledge” legitimizes the “war on terror” and its associated policies of regime change, military expansion in new regions, torture, and extraordinary rendition. Moreover, it provides the justification for the expansion of national security, the introduction of extraordinary legal powers, and the development of a panoptic surveillance system, of which Jeremy Bentham would have been proud. It also produces a quiescent and obedient population.

Further, the discursive nature of the term terrorism actually creates the very phenomenon which it ostensibly seeks to avoid — political violence against liberal states. The terrorism discourse, as Joseba Zulaika and William Douglass point out in their brilliant book, Terror and Taboo (written five years before 9/11), provides powerful cultural frames and narratives with which to understand the phenomenon. By defining many different and disparate politically violent groups together under one label, a relationship is established where none may have existed in the past. The label itself enhances the status of every minor group and encourages the further use of political violence. The enemy, “Al-Qaeda,” has been constituted as “the other,” making it easy to capture under its umbrella a whole range of acts of political violence which have very different motivations and contextual features, but all supposedly coordinated by a man in a cave who gave up using a cell phone years ago. The term “Axis of Evil” has extended the umbrella to include the PLO, Fidel Castro, the Sandinistas and more recently Iran and Yemen. A further discursive turn occurred with the use of the adjective Muslim or Islamic in front of the term creating dozens of suspect nations, thousands of suspect communities and millions of suspect individuals.

There is nothing in new appending an ethnic or racial description to terrorism. During the troubles in Northern Ireland journalists and some academics used the term “Irish terrorism.” The detention process for many started with a form stamped with the words “Irish Suspect” — a term sufficiently ambiguous as to which is the noun in the phrase — that a police officer could either consider the individual in racist terms or the whole of the Irish race. At UK airports and ports Irish people were separated out from other passengers for checking with signs that stated “Northern Ireland and Republic of Ireland passengers this way,” further increasing the general public’s suspicion of Irish people. Security experts are now arguing that the same procedures should be introduced at all airports for Muslims.

All the evidence from the thirty year war in Northern Ireland shows that discriminatory practices, the |”dramatization of evil,” the demonization of the “other,” created widespread anger and resentment among those affected. Irish people and people of Irish descent began to see themselves as “different” and their sense of being Irish was strengthened in the wake of the rising levels of suspicion. The impact on some was more dramatic. As a consequence of being defined, abused, humiliated, and segregated out for special treatment, many young men and women joined the IRA and became the very object of the discursive constructions.

This brings us to issue of responding to political violence. Now that there is widespread acceptance of the term terrorism, notwithstanding its vagueness, ambiguity, and dangerous discursive characteristics, it has become all too easy for the authorities to introduce more and more counter-terrorism measures, which curtail fundamental democratic rights of freedom of movement, speech, and protest. Significantly, there appear to be no limits to the expansion of these countermeasures. After each atrocity or, more typically, after each security breach, the measures are ramped up.

For example, following allegations that a group of British men had planned to build bombs using liquid explosives disguised as beverages, a ban, as millions know, was introduced on liquids of more than 100ml being allowed in hand luggage. This led to one of the biggest seizures of property in the history of modern society with thousands kilograms of drink, cosmetics and perfumes, shaving gels and mousse, being taken from travelers on a daily basis. Similarly, following the arrest in December of Umar Farouk Abdulmutallab, who is accused of attempting to blow up a plane as it came into land at Detroit airport, full-body scanners are to be introduced at airports.

But this development is already being questioned. Some security experts are predicting that soon the suicide bomber will have the bomb sewn inside his or her body with miniature wires under the skin which can be detonated by needles. The logical response to this potential threat will be for all passengers to be strip-searched to check for recent surgery and anything that might be concealed in body orifices. But the experience of Northern Ireland is instructive again. There, strip-searching and forced visual examinations of bodily orifices in the jails was commonplace, but the searches failed to detect many items, and miniature radios, lighters, and tobacco were all smuggled in.

Zygmunt Bauman, one of the most perceptive and original thinkers of our time, argues that we now live in a new political economy — a political economy of uncertainty that has developed as a result of globalization and the freeing up of financial, capital, and trade powers, against a backdrop of growing polarization of wealth, income, and life chances within and between countries. While billions of poor people live a life of certainty in poverty, their vast presence creates uncertainty among those in work, making redundant the traditional and costly disciplinary apparatus.

The political economy of uncertainty boils down essentially to the prohibition of politically established and guaranteed rules and regulations, and the disarming of the defensive institutions and associations which used to stand in the way of capital and finance becoming truly sans frontières. The overall outcome of both measures is the state of permanent and ubiquitous uncertainty which is to replace the rule of coercive law and legitimating formulae as the grounds for obedience (or, rather warranty for the lack of resistance) to the new, this time suprastate and global powers.

The mobilization of the concepts of “terrorism” and “counter-terrorism” further reinforces the levels of uncertainty and produces more compliance and ever greater erosion of civil liberties and human rights. Insecure individuals are in no position to act collectively and oppose “counter-terrorism” measures. On the contrary most people are in support of them precisely because they believe erroneously that it enhances their “security” and paradoxically helps reduce their growing levels of uncertainty. In the meantime, liberal democratic states with all their checks and balances against the abuse of power are being steadily transformed in exactly the ways that those who perpetrate political violence wish to achieve.

The main conclusion of this essay is that while the threat from political violence is real, we should stop using the word terrorism and instead use the concept of “political violence” to cover acts of violence within clearly defined political contexts — whether by states or others. In addition, we should rely solely on the substance and processes of the ordinary criminal law to deal with those who are involved in perpetuating acts of violence. Extraordinary measures only serve to create an extraordinary sense of injustice and increase anxiety. Finally, contrary to what Alan Dershowitz argues, we should begin to address the specific underlying causes which give rise to the various different types of political violence. This must include dealing with structural inequalities which exist in the world between rich and poor, and finding solutions to the many ethno-religious conflicts without the resort to unilateral military force. If any lesson is to be learnt from the Northern Ireland peace process, it is that for a resolution to occur, it is essential to convince the protagonists that there are other more effective means of achieving justice than through the use of violence.

At one level, the increased attention given to Rand’s views seems to be due to how aptly her account of the destruction of capitalism in Atlas Shrugged captures what has been happening in reality.  Here we find the description of how government and certain businesses work together to create a political/legal order that favors certain groups at the expense of others, destroys economic growth and enterprise, and makes an ever-increasing number of citizens dependent on government for their livelihoods.  In a word, we have a story about how government working with business and labor creates a fascist economic, political, and legal order.

Yet, this alone cannot explain the increased attention given to Rand, for both F. A. Hayek and Ludwig von Mises describe such a development, and while there is increased attention to their works too, it has not been as intense as that given to Rand’s. It would seem that the reason Rand’s views have been thrust into the public square is due to more than economic matters. No doubt, it is because of the moral or ethical dimension of her understanding of the role of government and the nature of capitalism.  This understanding is as follows:

1. The purpose of government is the protection and implementation of the basic individual rights of life, liberty, and property.  These ethical principles define, sanction, and provide the foundation for liberty as the paramount value for the political/legal order. The sole legitimate purpose of the state is the protection of liberty, and if the state pursues any other ends, then it debases its legitimacy.
2. Capitalism is neither immoral nor amoral.  Rather, it is, as Rand states, “a social system based on the recognition of individual rights, including property rights, in which all property is privately owned.”

Individual rights are the linchpin of Rand’s political philosophy, and it is in terms of this concept that she understands capitalism.   It provides the ethical ideal by which to measure political orders and economies.  The United States has from its inception fallen short of this ideal, but it has more closely approximated it than any other political/legal order.  Thus, many Americans have a sense that their country is now explicitly rejecting this ethical ideal for another.  So, this is certainly part of the explanation for the resurgence of Rand.

This does not seem to be sufficient, however.  The classical liberal tradition is full of references to individual rights and their importance for politics and the economics.  One has only to think of the works of Frédéric Bastiat, particularly The Law, to find a view of government’s function and a commitment to laissez faire capitalism that is equivalent to Rand’s.   Moreover, Bastiat’s wit and writing style certainly make him as accessible as Rand.  So, again, why Rand?

The next part of the answer seems to be this:  It is for Rand both right and a right for individuals to live for their own sakes.  The moral standard to be followed is for each individual to live as full and as complete a human life as possible. Each individual human being is an end in him- or herself and has no higher moral purpose.  One is certainly not merely a means to the ends of others. This is what Rand meant by speaking of the virtue of “selfishness.” Her purpose in using a term that is normally thought of as a vice to describe her fundamental virtue was to indicate just how profound a paradigm shift is needed in order to defend liberty.  The right to liberty will not long exist in a culture that sees the pursuit of happiness (and by “happiness” she meant something more like human flourishing than merely pleasure) as either unworthy or simply amoral.  Fundamentally, when it comes to culture and the institutions that constitute a social system, homo moralis is what mattered for Rand, not homo economicus.

Rand’s point was not, however, merely a matter of sociology of knowledge.  She argued not only that moral knowledge is in fact possible but that such knowledge is found by an understanding of what human beings are—that is, by an appeal to human nature.  She thus sought to make a deep and profound philosophical claim about the nature of ethics and to link her advocacy of the ideal of liberty to this claim. Individual rights are natural rights. Indeed, Rand can be understood in most general terms as basing her advocacy of natural rights in natural law, if by the latter one understands “law” as meaning the measure and human nature as providing the measure that is the law.  So, what one finds in Rand is (despite her atheism) an echo of an older ethical tradition whose basic note is that human nature grounds the moral order.  This echo rings true, in many ways, to Americans who find themselves lost in the seemingly contradictory norms of political correctness and ethical relativism and who increasingly fear a culture (and politics) of nihilism.

Yet the relevance of Rand does not end here, because it is not merely the existence of a moral order that human beings desire, but something even larger—namely, the existence of an order that is open to human reason, achievement, and flourishing. Rand held that reality is intelligible and that there is nothing in principle which prevents human beings from knowing it.  Moreover, not only can we know reality, we can also use our knowledge to control nature so as to fulfill our needs and achieve our goals.  This world is not a “vale of tears,” but a place in which humans can triumph over poverty, disease, and ignorance. It is a place where human happiness is possible.  There may be no other writer who so fully conveys the sense of triumph that is possible for human life.  For Rand, Prometheus is unbound.  It is in this regard that Rand has a drawing power that may be the most profound of all.

I think, then, that Rand is in the news for these reasons: her ability to note with dramatic force the immorality and hypocrisy of our current political age; her commitment to individual rights; her holding liberty and capitalism inviolate; her rejection of “moral cannibalism” in any form; her advocacy of moral individualism; her recognition of a moral order grounded in human nature; and her realization that reality is not only intelligible but open to possibilities for human achievement far more wondrous than ever realized.  Overall, Rand’s philosophy supports ideas that were once thought to pertain to the very essence of being an American.  This essence is illustrated well by a poem, which I learned over forty-five years ago.  It is known simply as “My Creed.”

I do not choose to be a common man.

It is my right to be uncommon—if I can.

I seek opportunity—not security.

I do not wish to be a kept citizen,

Humbled and dulled by having the state look after me.

I want to take the calculated risk,

To dream and to build, to fail and to succeed.

I refuse to barter incentive for a dole.

I prefer the challenges of life to the guaranteed

existence,

The thrill of fulfillment to the stale calm of utopia.

I will not trade freedom for beneficence

Or my dignity for a handout.

I will never cower before any master

nor bend to any threat.

It is my heritage to stand erect, proud,

And unafraid, to think and act for myself,

Enjoy the benefits of my creations

And to face the world boldly and say, this I have done.

All this is what it means to be an American.

Rand can be viewed as seeking to provide the philosophical foundations for the ideas expressed in this poem.

Despite the power of Rand’s views, they can leave the critical reader in a quandary.  I believe the reason for this was expressed well by Professor John Hospers.  He once described Rand’s philosophical style as being like the broad brush strokes of a painter but without the tiny strokes that make the painting complete.  In other words, Rand’s thought lacks the attention to details, counter-examples, and context that are the hallmarks of the philosopher’s task.  As a result, she leaves many lacunae in her views and room for various interpretations of her basic positions.  Given the increased interest in Rand’s views, as well as her uncompromising defense of liberty, it might be worthwhile, then, to state some questions about Rand’s philosophy that critical readers might wish to ponder.  I will list six sets of questions. It is my hope that these can be used as the basis for discussion.

1. What is Rand’s justification for individual rights? Does it succeed? What is the function of the concept of rights?  Is it rooted in human flourishing?  If so, how?  Is it a human virtue? Is it a deontological (duty) concept, or is it a different type of ethical norm?  Does Rand have a single justification for rights?  If Rand does not have an adequate argument, does she suggest paths that might be developed?  Or, is there no hope in this regard, and if so, is there any way to justify individual rights?
2. Is Rand’s account of capitalism accurate?  Is it true to the work-a-day reality that people confront?  In terms similar to those used by Howard Roark in The Fountainhead, do most people have customers in order to create, or do they create in order to have customers?  Does it matter? Does capitalism require a moral backdrop to work, to be understood, to be defended?  Are individual rights the only moral concept required?  What are the differences between Rand’s vision of capitalism and that of Smith’s, Mises’s, or Hayek’s? Does homo moralis really trump homo economicus?
3. Does Rand succeed in showing that there is moral knowledge?  Does she succeed in showing that human nature is its foundation?  Does she provide a way to derive what is valuable from what is and thus avoid the so-called naturalistic fallacy?  Is she committed to some version of naturalistic teleology (for example, that life is the ultimate end) and is this defensible?  Or, is Rand also committed to the idea that all morality rests on a pre-moral choice to live, and if so, has she really shown that our knowledge of what is can provide guidance as to what we ought to do?
4. The subtitle of The Virtue of Selfishness is “A New Concept of Egoism.”  Does Rand provide a new concept?  Is it egoism?  In Atlas Shrugged, the standard of moral value is “Man’s Life,” and in The Virtue of Selfishness, it is “man’s survival qua man.”  Are these the same?  Are all the goods and virtues that are involved in living “qua man” merely instrumental values, or are some valuable in themselves?  How are such goods and virtues to be understood? What is the place, if any, for the friendship and charity in Rand’s ethics?  Is it really true that what is objectively good and right for one individual cannot as a matter of principle ever conflict with what is objectively good and right for another individual?  Does Rand fully appreciate the role of individuality when it comes to making moral determinations, and why is there no discussion of the intellectual virtue of practical wisdom? What is the role, if any, of the contingent and the particular in determining what one ought to do? Is there no place for moral pluralism? Is Rand’s ethical individualism really a form of atomism, or does she have a place for sociality in her account of the moral life?  How do Rand’s ethical views compare to those of Aristotle, Aquinas, Hobbes, Smith, Kant, and Nietzsche?
5. Is the idea of human nature defensible?  In general, can one be realistic about the nature of anything, or does one have to be more pragmatic when it comes to how the world is conceptually divided? Is Rand’s account of human nature defensible?  Does her account of human volition stand up?  Does Rand always maintain a clear distinction between the “concept of X” and “X,” or does she sometimes fall into a rationalism that conflates the tools of human reason with reality?
6. Is Rand’s view of religion accurate?  Is there no place for the transcendent in human life, and is faith in God simply a form of irrationalism?  Has natural theology truly been dismissed from the realm of rational discussion? What is the proper object of religious worship? Is there no place for tragedy in a realistic account of the world?  Is philosophy as close to reality as Rand seems to think?

As said, I offer these questions as the basis for discussion.  I make no pretense that they are exhaustive, but they are the sorts of questions regarding Rand that I have thought about for years.  This should be enough to get the ball rolling, so to speak.

Before I close these remarks, I want to note what my colleague, Douglas J. Den Uyl, has observed regarding Rand’s view of the connection between philosophy and reality.

As philosophers have known since antiquity, what moves the world may not map exactly onto the rarified and subtle nuances of thought suitable to philosophical truth.   This asymmetry is, for the most part, denied by Rand.  But the truth is that it manifests itself either by issuing in a state of persistent pessimism about the world around one, or in a small but deep sense of “tragedy” that the path from philosophic principle to practical action is a long, twisted, and obstacle ridden one with no smoother alternative.  I, for one, find the “tragic” path more conducive to the enjoyment of living, but its danger is a pessimism (or equally problematic, an enthusiasm) that comes from trying to obliterate the distance between philosophy and life.

I think that Rand lost sight at times (both in her work and life) of the distance between thought and reality.  I think this causes her no end of troubles on certain occasions (for example, when she attempted to provide an account of an “objective” theory of the moral good in “What is Capitalism?” in Capitalism: The Unknown Ideal), but I do not think that it is an overwhelming problem. The answer is to be found in observing the appropriate mean:  we are not cut off from reality; happiness is possible.  But the road we travel is not easy and nothing is guaranteed.  We must always keep in mind the distance between thought and reality if we are to triumph.

Not only do I think these observations are important for individuals in facing the challenges of their lives, but also for all who seek to defend liberty.  We live in a most trying time, and we are called upon to discover what is true and defend it with all of our abilities.  The truth behind liberty will ultimately prevail, but this may not happen in our lifetimes. Even if we were to succeed in our defense of liberty, nothing would be guaranteed.  Our work would need to continue.  Such is the human condition.  So, if there is any single reason for why Rand’s views should be worthy of the attention they are currently receiving, it is this: philosophical principles matter, and persons and cultures that ignore them do so at their peril.  This is the basis for the continued appeal of Atlas Shrugged, for there she pointed out more vividly than anyone else in our time what happens when the right principles are subverted and the wrong ones take their place.

Postscript:

I have over these years worked not only with such philosophers as Hospers and Den Uyl, but also Tibor Machan, Eric Mack, Fred Miller, Aeon Skoble, and many others, and so I think I can say fairly that there has been much philosophical progress in developing, expanding, and improving upon the insights of Rand.   Moreover, there has been the creation of the Ayn Rand Society, which has been meeting at the American Philosophical Association for more than twenty years, as well as the Journal of Ayn Rand Studies (edited by Chris Sciabarra), which is devoted to a careful and no holds barred analysis of her thought.  Rand’s thought thus is part of the current intellectual scene, and so it is altogether proper to assess her views at this time. I say this not because I see Rand as the ending point for discussion but as a starting point.  Finally, it is possible to advance liberty and defend individual rights in a manner different from Rand’s, as the works of Robert Nozick, Loren Lomasky, Jan Narveson, and David Schmidtz attest, and thus there is nothing in this proposed discussion that should be taken to deny the importance of their works.

Two final matters:  “My Creed” was written by Dean Alfange, and I would like to thank Will Wilkinson and Cato for this opportunity as well as Douglas Den Uyl, Aeon Skoble, and Roger Bissell for their helpful suggestions.

—

Douglas B. Rasmussen is professor of philosophy at St. John’s University in New York City.

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.

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.

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.