A Bit of Backpedaling

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

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

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

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

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.