Since 1944, when The Road to Serfdom appeared, Friedrich A. Hayek has been perhaps the foremost defender of classical liberal politics and economics. Dedicated to “The Socialists of all Parties,” the message of The Road to Serfdom was clear:
Economic control is not merely control of a sector of human life which can be separated from the rest; it is the control of the means of all our ends. And whoever has sole control of the means must also determine which ends are to be served, which values are to be rated higher and which lower—in short, what men should believe and strive for.
Economic planning, the attempt to shackle the “invisible hand” of the free market, Hayek maintained, would lead to a creed of unrestrained egalitarian collectivism. When this misguided notion of equality came to infect democratic regimes, it would cause their destruction, and, therewith, the political concern for preserving individual liberty. Economic planning was, above all else, the most direct route to a new and stifling brand of serfdom. Hayek argued in behalf of what he saw to be the higher but abandoned road of classical liberalism.
Since writing The Road to Serfdom, Hayek has continued to bolster the literary defenses against infectious egalitarianism: The Sensory Order (1952), The Constitution of Liberty (1960), Studies in Philosophy, Politics, and Economics (1967), and New Studies in Philosophy, Politics, Economics, and the History of Ideas (1978). In 1974 Professor Hayek was awarded the Nobel Prize for Economics. We now have at our disposal his most comprehensive attempt yet to formulate a “new statement of the liberal principles of justice and political economy,” Law, Legislation and Liberty: The Political Order of a Free People being the third and final volume of Hayek’s magnum opus.
Hayek begins the first volume of this trilogy, subtitled Rules and Order, by pointing to what he sees as the root problem of modern politics: there has been a radical transformation in man’s understanding of law. The basis of the constitutionalism of the 18th century was the idea that constitutions were necessary to limit the powers of governments. But, as Hayek points out, that understanding, that “first attempt” to secure individual liberty through written constitutions, has “evidently failed.” For everywhere governments have, by constitutional means, drawn unto themselves the very powers the constitutions were intended to deny.
The cause of this transformation was that freedom ceased to be esteemed as a “supreme principle which must not be sacrificed to particular advantages.” In the political battle between principle and expediency, it seems, principle only rarely emerges the victor. Once the principle of freedom was sacrificed to the expediency of particular social problems— regardless of how pressing those problems were—it began to lose its charm. No longer seen as necessarily above the ordinary problems of politics, freedom ceased to be considered a general, universal principle with the power and nobility to inform the whole of man’s life. It became merely one choice among many, occasionally to be pursued, occasionally to be ignored, whichever course seemed more expedient to the majority of the people.
The ascendance of expediency over principle, in turn, caused a subtle but steady blurring of the necessary distinction between nomos, the universal law of just conduct, and thesis, the law of legislation. Legislation, a human invention, has had the most profound impact on the course of human existence. It has given men an awesome instrument with which they can achieve “some good,” but also, and more importantly, one with which they can produce “great evil.” The reason is clear: legislation or thesis, a matter of convention, has given man a new sense of power over his own fate which law or nomos, a matter of nature, had withheld.
With the growth of the popularity of thesis as a panacea for the ills of the natural “spontaneous order” of life, there has followed the gradual dissolution of the fundamental beliefs of classical liberalism. Discoverable principles of universal applicability have been abandoned in favor of man-made law directed not at universals but at particulars. With the loss of the teleological framework which had been provided by the faith in the general principle of freedom came the rapid enhancement of man’s self-confidence to create all things necessary for the ease of existence. There is no problem whose solution lies beyond man’s reach. It is this assumption by contemporary man that is Hayek’s target: “to hope that we can build a coherent order by random experimentation with particular solutions of individual problems and without following guiding principles is an illusion.”
Professor Hayek’s project is to salvage individual liberty from the onslaught of the modern fascination of achieving “social justice.” In volume two, The Mirage of Social Justice, Hayek makes his frontal assault on the prevailing ideology of our age. After critically analyzing the foundations of that ideology— utilitarianism and legal positivism—he concludes that the concern for social justice is really no concern for justice at all. It is, rather, a concern for leveling, for reducing the natural distinctions among men. It is essentially socialistic and, hence, unjust.
The concern for social justice is the result of the fundamental transformation in the way law is understood. Justice, no longer associated with the negative demands of nomos, is now linked to a “positive conception which makes it the duty of society to see that individuals have particular things.” The movement from nomos to thesis has resulted in the transformation of man’s view of justice itself.
Having pointed to the cause of the dilemma of modern politics in volumes 1 and 2, in volume 3 the author puts forth his teaching for The Political Order of a Free People. Hayek’s goal is the “Open Society.” His means of achieving that open state is largely the recovery of the free market as the basis of politics and policy. Hayek’s solution to the problem of politics is, ultimately, an economic solution: the slow but sure working of the “invisible hand.” His point is unambiguous:
If the Enlightenment has discovered that the role assigned to human reason in intelligent construction had been too small in the past, we are discovering that the task which our age is assigning to the rational construction of new institutions is far too big. What the age of rationalism—and modern positivism —has taught us to regard as senseless and meaningless formations due to accident or human caprice, turn out in many instances to be the foundations on which our capacity for rational thought rests.
Thus, we find that this new treatise is not really a “new” statement of Hayek’s view of liberalism; it is a restatement. What Hayek achieves here is only a re-paving of The Road to Serfdom.
Law, Legislation and Liberty, like Hayek’s earlier works, is an important contribution to the dialectic of social thought. But, also like his earlier works, its basic analytical perspective is distorted. What the author perceives as a problem of politics is, in fact, the problem of the modern philosophic tradition generally. And his economic solution rests upon the same foundation as the political problems he so clearly delineates. To be truly critical of modernity, one must attempt to step outside that tradition. Law, Legislation and Liberty is not so much a criticism of modernity as it is a criticism of one part of modernity by another.
To divorce oneself from the ideological prejudices of one’s age is no easy matter, but it can be accomplished. Ultimately, Hayek’s critique lacks the depth of, say, Leo Strauss’s Natural Right and History. It lacks that depth because Hayek’s analysis is more polemical than philosophical. Hayek cannot cut to the root of modernity because he cannot resist the allurements offered him by part of the modern project—Smith, Hume, Ferguson, and Kant, for example.
At its deepest level, Law, Legislation and Liberty seems to mistake the basic structure of human existence. Hayek assumes that economics is the high and politics the low, rather than assuming that politics may in fact be the architectonic science that Aristotle said it was. It just may be that the basic problem of modernity, in which Hayek shares, is the failure to take politics very seriously.