Reflections on Dead Horses, Semantic Confusion, and Straw Men

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.”

Also from this issue

Lead Essay

  • 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

  • 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.

  • 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.

  • 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.