Representative Paul D. Ryan, Republican of Wisconsin, alluded to “The Road to Serfdom” in introducing his economic “Roadmap for America’s Future,” which many other Republicans have embraced. Ron Johnson, who entered politics through a Tea Party meeting and is now the Republican nominee for Senate in Wisconsin, asserted that the $20 billion escrow fund that the Obama administration forced BP to set up to pay damages from the Gulf of Mexico oil spill circumvented “the rule of law,” Hayek’s term for the unwritten code that prohibits the government from interfering with the pursuit of “personal ends and desires.”
It’s the last sentence that has me in stitches. Have you heard of this peculiar thing some call “the rule of law”? To be fair, Mr Hayek did eventually develop a distinctive conception of the rule of law, but it’s not that distinctive, and the idea of “an unwritten code” certainly isn’t part of it. Mr Hayek’s late-period thought on cultural evolution did emphasise the heavy reliance of successful societies on unwritten and often inarticulable norms of behaviour, and our culture’s will to uphold the ideals of the rule of law flows in large part from our unwrittern cultural endowment, but the idea of an unwritten code is pretty much the opposite of what Hayek had in mind when it came to the rule of law.
Perhaps Ms Zernike missed the chapter titled “Planning and the Rule of Law” as she read “The Road to Serfdom” in preparation for this article. There, Hayek draws out the difference between “a free country” and “a country under arbitrary government”. A country counts as free only if its government is bound by the rule of law, which, according to Hayek, “means that government in all its actions is bound by rules fixed and announced beforehand”. Typically, these rules, once fixed, are written down and then published through official state organs. The idea is that politically-determined rules need to be relatively fixed and publicly known in order to create a stable and certain framework in which individual planning and complex social coordination can flourish. The goal of replacing arbitrary government with the rule of law implies for Hayek, among other things, that executive discretion ought to be reduced “as much as possible”.
Hayek is used and abused by partisans on the left and the right these days, his writing and ideas made into caricatures by both groups. On the left, he’s become a cartoon villain – a criminal mastermind in league with Ayn Rand and the Joker. On the right he’s been almost deified, in the way many of the Founding Fathers have been made more than mere mortals. The fact of the matter is, Hayek was writing for a different time, from a much different perspective than we have now, and had far more nuanced views about government and free markets than many in the current debate give him credit for, making much of the discussion of the man’s ideas rather silly.
Here’s more Wilkinson:
I should add that the rule of law, as Hayek understands it, does not, as Ms Zernike writes, prohibit government from interfering with the pursuit of personal ends and desires. The idea certainly is to maximise the chance that individuals and groups will be able to achieve their goals, but this requires some constraints on the way goals are pursued. For Hayek, the rule of law means that these constraining rules must not play favourites, but rather must embody ideals of impartiality, generality, and equality before the law. Hayek’s proposal for a generality or non-discrimination amendment to the constitution (defended here by James Buchanan) nicely illustrates what he took to be the practical upshot of his ideal of the rule of law.
Of course, none of this is to say that Hayek’s new tea-party fans generally care much or at all about his conception of the rule of law. If only! Mostly they have fixed on the least impressive part in all of Hayek’s impressive oeuvre. In the age of Hitler, Stalin, and Mussolini, it was profoundly wise to vigilantly stand guard against any possible slide into collectivist totalitarianism. But now, almost 70 years later, it is abundantly clear that the prevailing sort of liberal-democratic welfare state has no general tendency toward tyranny.
The New York Times was unforgivably lazy in its interpretation of Hayek, but that’s no surprise. These days, from the Gray Lady to the Tea Party, Hayek is doomed to be misunderstood, to be used as just another weapon in our lazy political discourse. Such is the price of fame, I suppose. Or infamy, depending on how you look at it.
P.S. Tyler Cowen recently reread The Road to Serfdom. His thoughts:
1. It was more boring and less analytic on matters of public choice than I had been expecting.
2. Although some of Hayek’s major predictions have been proven wrong, they are more defensible than I had been expecting.
3. The most important sentence in the book is “This book, written in my spare time from 1940 to 1943…” In those years, how many decent democracies were in the world? How clear was it that the Western powers, even if they won the war, would dismantle wartime economic planning? How many other peoples’ predictions from those years have panned out? At that time, Hayek’s worries were perfectly justified.
4. If current trends do turn out very badly, this is not the best guide for understanding exactly why.
It’s fine to downgrade the book, relative to some of the claims made on its behalf, but the book doesn’t give us reason to downgrade Hayek.