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The Immunity Community

In America, American History, Arts & Letters, Britain, History, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy on September 10, 2014 at 8:45 am

Allen 2

This piece first appeared here as a Mises Emerging Scholar article for the Ludwig von Mises Institute Canada.

The doctrine of sovereign immunity derives from the English notion that “the king can do no wrong” and hence cannot be sued without his consent. The purpose of this doctrine was, in England, from at least the Middle Ages until eighteenth century, to bar certain lawsuits against the monarch and his or her ministers and servants. With the rise of the English Parliament after the death of Elizabeth I, government officers and politicians sought to gain the power of immunity that the monarch and his or her agents had enjoyed.

In practice, however, English subjects were not totally deprived of remedies against the monarch or the government. The doctrine of sovereign immunity was not an absolute prohibition on actions against the crown or against other branches of government;[1] subjects could avail themselves of petitions of right or writs of mandamus, for instance, and monarchs fearful of losing the support of the people would often consent to be sued.

It was not until the monarchy had been demonstrably weakened that the doctrine of sovereign immunity began to be espoused with added urgency and enforced with added zeal. In the late eighteenth century, Sir William Blackstone intoned in his Commentaries on the Laws of England that the king “is not only incapable of doing wrong, but ever of thinking wrong: he can never mean to do an improper thing: in him is no folly of weakness.” These lines convert sovereign immunity into sovereign infallibility, a more ominous yet more dubious pretension.

Once the monarchy had been abolished altogether, the idea that the sovereign had to consent to be sued no longer held credence. As Louis L. Jaffe explains, “Because the King had been abolished, the courts concluded that where in the past the procedure had been by petition of right there was now no one authorized to consent to suit! If there was any successor to the King qua sovereign it was the legislature,” which, having many members subject to differing constituencies, was not as accountable as the monarch had been to the parties seeking to sue.[2]

The principle of sovereign immunity carried over from England to the United States, where most states have enshrined in their constitution an absolute bar against suing the State or its agencies and officers whose actions fall within the scope of official duties. The Eleventh Amendment to the U.S. Constitution likewise states that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” This provision, which applies only in federal courts and which does not on its face prohibit a lawsuit against a state by a citizen of that same state, was adopted in response to the ruling in Chisholm v. Georgia (1793), a case that held sovereign immunity to have been abrogated and that vested in federal courts the authority to preside over disputes between private citizens and state governments.

Notwithstanding the complex issues of federalism at play in the Chisholm decision and in the Eleventh Amendment, the fact remains that the doctrine of sovereign immunity has been applied with widening scope and frequency since the states ratified the Eleventh Amendment in 1795. The U.S. Supreme Court has contributed to the doctrine’s flourishing. “The Supreme Court’s acceptance of sovereign immunity as constitutional principle,” explains one commentator, “depends on its determination of the intent of the Framers, which ignores a great deal of historical evidence from the time of the founding and relies primarily on a discredited account of the Eleventh Amendment first articulated in the 1890 case of Hans v. Louisiana.”[3]

State and federal courts have now built an impregnable wall of immunity around certain state and federal officers. The sovereign immunity that is enshrined in state constitutions is, in theory, not absolute because it is conferred only to certain agents and officers and does not prohibit lawsuits to enjoin such agents and officers from performing unconstitutional or other bad acts. In practice, however, the growth of qualified immunities, which is in keeping with the growth of government itself, has caused more and more agents of the State to cloak themselves in immunity.

Bus drivers, teachers, coroners, constables, high school coaches, doctors and nurses at university hospitals, security guards, justices of the peace, government attorneys, legislators, mayors, boards of education and health, university administrators, Indian reservations, prison guards and wardens, police officers and detectives, janitors in government facilities, licensing boards, tax assessors, librarians, railroad workers, government engineers, judges and justices, school superintendents and principals, towing companies, health inspectors, probation officers, game wardens, museum docents and curators, social workers, court clerks, dog catchers, contractors for public utilities, public notaries, tollbooth attendants, airport traffic controllers, park rangers, ambulance drivers, firefighters, telephone operators, bus drivers, subway workers, city council members, state auditors, agricultural commissioners—all have sought to establish for themselves, with mixed degrees of success, the legal invincibility that comes with being an arm of the state.

Yet the idea that “the king can do no wrong” makes no sense in a governmental system that has lacked a king from its inception. Its application as law has left ordinary citizens with limited recourse against governments (or against people claiming governmental status for the purpose of immunity) that have committed actual wrongs. When the government, even at the state level, consists of vast bureaucracies of the kind that exist today, the doctrine of sovereign immunity becomes absurd. If it is true that in nine states and in the District of Columbia the government employs more than 20% of all workers, imagine how many people are eligible to claim immunity from liability for their tortious conduct and bad acts committed on the job.

Local news reports are full of stories about government employees invoking the doctrine of sovereign immunity; few such stories find their way into the national media. Judge Wade McCree of Michigan, for instance, recently carried out an affair with a woman who was a party in a child-support case on his docket, having sexual intercourse with her in his chambers and “sexting” her even on the day she appeared as a witness in his courtroom. Although McCree was removed from office, he was immune from civil liability. An airport in Charleston, West Virginia, is invoking the doctrine of immunity to shield itself from claims that it contributed to a chemical spill that contaminated the water supply. Officer Darren Wilson may be entitled to immunity for the shooting of Michael Brown, depending on how the facts unfold in that investigation.

The U.S. Supreme Court once famously declared that the doctrine of sovereign immunity “has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”[4] A disestablishment is now in order. The size and scope of government is simply too massive on the state and national level to sustain this doctrine that undermines the widely held belief of the American Founders that State power must be limited and that the State itself must be held accountable for its wrongs. Friedrich Hayek pointed out that the ideal of the rule of law requires the government to “act under the same law” and to “be limited in the same manner as any private person.”[5] The doctrine of sovereign immunity stands in contradistinction to this ideal: it places an increasing number of individuals above the law.

If the law is to be meaningful and just, it must apply equally to all persons and must bind those who enforce it. It must not recognize and condone privileges bestowed upon those with government connections or incentivize bad behavior within government ranks. Sovereign immunity is a problem that will only worsen if it is not addressed soon. The king can do wrong, and so can modern governments. It’s time for these governments to be held accountable for the harms they produce and to stop hiding behind a fiction that was long ago discredited.

________

[1]See generally, Louis L. Jaffe, “Suits Against Governments and Officers: Sovereign Immunity,” 77 Harvard Law Review 1 (1963).

[2]Jaffe at 2.

[3]Susan Randall, “Sovereign Immunity and the Uses of History,” 81 Nebraska L. Rev. 1, 4 (2002-03).

[4]U.S. v. Lee, 106 U.S. 196, 207 (1882).

[5]F. A. Hayek, The Constitution of Liberty, Vol. 17 of The Collected Works of F.A. Hayek, ed. Ronald Hamowy(Routlege, 2011), p. 318.

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Thoughts on ‘The Road to Serfdom’: Chapter 4, “The ‘Inevitability’ of Planning”

In Arts & Letters, Austrian Economics, Book Reviews, Books, Britain, Economics, History, Humane Economy, Humanities, Liberalism, Libertarianism, Philosophy, Politics, Western Civilization, Western Philosophy on September 18, 2013 at 7:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

The following is part of a series of chapter-by-chapter analyses of Friedrich Hayek’s The Road to Serfdom. Other installments in the series can be found here: Introduction, Chapter 1, Chapter 2, Chapter 3.

In Chapter IV of The Road to Serfdom, entitled “The ‘Inevitability’ of Planning”, Hayek sets out to dispel the claim by advocates of socialist planning that controls are a necessary part of an advanced, modern economy and that without them the economy would cease to function. He recognizes that socialist claims as to the inevitability of planning can be broadly categorized into three types of argument, then proceeds to refute each. He does so thoroughly and effectively. In the course of reading his arguments, however, we unfortunately find more of the same sorts of errors that have punctuated previous chapters. Though these errors are not as numerous as those we have already seen from Hayek, they are fatal to the cause of liberty. Hayek’s flaws here confirm our earlier assertion that his view of the argument for freedom is so firmly rooted in an economic, cost/benefit framework as to make him unsuited to presenting the comprehensive defense that capitalism as a system of individual rights needs and deserves.

Hayek begins by accurately describing a circumstance quite familiar to us today: politicians who advocate central planning doing so on the claim that circumstances somehow demand controls, and that it is not a choice but a necessity that the government intervene if we are to retain a functioning economy. The familiarity one finds in reading his characterization of this mode of thinking reveals how constant and unchanging such arguments are across generations and throughout the Western world. The arguments he describes, though drawn from England in the 1940s, are replayed in the halls of the US Congress week after week, year after year to the detriment of the rights and success of private businesses, their vendors, customers, employees, investors, and all who share in the economy with them.

Distinguishing the various arguments used to support this insistence upon the need for planning, Hayek finds three purported bases for their claims: technological advancement, societal complexity, and the need for coercive monopoly.

Argument I: Technological Advancement

As to the first, he writes, “Of the various argument employed to demonstrate the inevitability of planning, the one most frequently heard is that technological changes have made competition impossible in a constantly increasing number of fields, and that the only choice left to us is between control of production by private monopolies and direction by the government” (32). The preeminence of this argument above the others may not hold the number one position that it did in Hayek’s day, as other arguments for market regulation have debatably become more prevalent, but it certainly remains one of the leading lines of thought in antitrust.

Hayek characterizes such arguments as resting largely on deterministic conceptions of economic progress, ones that in the early 20th century viewed Germany, with its coincidence of economic planning, a strong industrial sector, and large companies operating in collusion with the national government as the vanguard of human progress. He points to the roots of this thinking in Germans’ misconceptions of their own system: “It is largely due to the influence of German socialist theoreticians, particularly Sombart, generalising from the experience of their country, that the inevitable development of the competitive system into ‘monopoly capitalism’ became widely accepted” (34), Hayek offers several valid economic and historical arguments against this, refuting the suggestion by many that a free economy naturally, inevitably congeals into small number of sprawling monopolies.

Hayek points out that monopolies arising purely from efficiency and natural market forces are rare and very difficult to sustain, thus making competitive arguments the norm in a free economy. He acknowledges that most monopolies arise from government favors and protection—constituting what can best be termed coercive monopolies. “Not only the instrument of protection, but direct inducements and ultimately compulsion, were used by the governments to further the creation of monopolies for the regulation of prices and sales” (34).

He makes clear that the progress of the German economy was not such that monopolies resulted naturally and were subsequently checked by government controls, but rather that the companies in question attained their monopoly status through that very culture of political collusion. He points to the same mechanism of political influence and pull-peddling in the establishment of protectionist policies and the formation of inefficient, monopolized industries in the United States and Great Britain as well.

“That [in Germany] the suppression of competition was a matter of deliberate policy, that it was undertaken in the service of the ideal which we now call planning, there can be no doubt. In the progressive advance towards a completely planned society the Germans, and all the people who are imitating their example, are merely following the course which nineteenth-century thinkers, particularly Germans, have mapped out for them. The intellectual history of the last sixty or eighty years is indeed a perfect illustration of the truth that in social evolution nothing is inevitable but thinking makes it so” (35).

Making this and other points as to the origins of large monopolies, Hayek establishes a strong historical case against the belief that unchecked market forces lead naturally to the creation of monopolized industries. What he does not do, however, is take a stand in defense of naturally occurring, non-coercive monopolies when and where they do occur. This is to be expected. Influenced by ideas dominant in the field of economics both then and now, Hayek has already established briefly in previous chapters his support for employing antitrust policies to facilitate competition.

What Hayek and others of this persuasion fail to note, however, is the two-fold case for free market monopolies: the profound economic value they offer and the protection of individual rights. As rare as these monopolies are, they do occur. When they arise, they do so because a company has achieved such a profound degree of efficiency that no other company is able to compete in the same market and must exit the market place.

Such monopolies have not attained their status through force or the rule of law, but through so consistently providing the best product for the money that their appeal in a market overwhelms all potential competitors. It may not conform to the idealized, Platonic notion of ‘competitive markets’ to which modern economics has become so hidebound, but that is a paltry explanation to offer people as an apology for why the company they patronize had to be divested of its assets for offering them too much value, and for why they are now better off having to pay higher prices for the same goods and services. To the contrary: the achievement of the kind of superlative efficiency that defines free market monopolies, from which the customers and general population gain as surely as the company itself, should not be condemned but praised.

More than this, the proper defense of free market monopolies is based in the property rights of the owners of the company—be they the operators themselves, or shareholders of a publicly traded company. No matter the extent to which their operations do or do not conform to economists’ notions of which market forms are to be favored, neither they nor policymakers nor the general public have the right to take from them that which is rightfully theirs in the name of creating a more efficient allocation of resources.

In today’s debates, a derivative line of thinking from the technology argument usually takes the form, ‘If one company gains such a technological advantage as to offer its goods and services at a price and quality with which no other company can compete, shouldn’t the government intervene?’ Faced with such a question, any defender of liberalism—that is, anyone who value’s man’s life and individual rights above subservience to some ill-defined collective ‘good’—should offer a resounding “Absolutely not!” As in his earlier chapters, though, Hayek makes no mention of rights here and is thus unable to offer this kind of principled defense—or, for that matter, any defense.

Argument II: Societal Complexity

The second argument for the inevitability of planning addressed by Hayek is loosely related to the first, with an added macroeconomic dimension. He writes,

“The assertion that modern technological progress makes planning inevitable can also be interpreted in a different manner. It may mean that the complexity of our modern industrial civilisation creates new problems with which we cannot hope to deal effectively except by central planning” (35) [Emphasis mine].

This argument should be strikingly familiar to those in modern America, ringing from both right and left as both sides of the political spectrum apologize for our massive regulatory system with vague, arbitrary claims to the effect that there exists some unnamed, undefined essential quality to today’s economy that so fundamentally differentiates it from that of earlier periods as to require the forcible regulation of trade. What is this fundamental difference? How and at what point did it emerge? What about the complexity of the economy negates the organizational virtues of the price system? Blank out. The apologists have no causal explanation, only inherited and unchallenged bromides.

“What they generally suggest is that the increasing difficulty of obtaining a coherent picture of the complete economic process makes it indispensable that things should be coordinated by some central agency if social life is not to dissolve in chaos” (36).

Such unsubstantiated conjectures and baseless arguments never require much to be toppled, but fortunately Hayek provides a more than adequate shove, making the case that greater complexity in an economy is not an argument in favor of central planning, but rather an argument against it. The more complex an economic system, the more valuable it becomes that each party, knowing their own costs and values, conducts their own planning, achieving order through the natural coordination of prices, each communicating information as to the supply and demand of resources in an open economy.

Argument III: The Need for Coercive Monopoly

The last argument in favor of planning somewhat reverses the trend of the first two, justifying planning as a means of imposing monopolies rather than preventing them, and revealing the crux of the statists’ argument to be not the protection of competition throughout the economy, but the socialist planner’s ability to pick and choose when and in what sectors competition will prevail.

“There is yet another theory which connects the growth of monopolies with technological progress, and which uses arguments almost opposite to those we have just considered; though not often clearly stated, it has also exercised considerable influence. It contends, not that modern technique destroys competition, but that, on the contrary, it will be impossible to make use of many of the new technological possibilities unless protection against competition is granted, i.e., a monopoly is conferred” (37).

This particular argument for government planning is less common, as its applications are less frequent throughout economies. The most notable circumstance in which this argument is presented is with respect to so-called ‘natural monopolies’ (a term used by economists that ambiguates other kinds of natural monopolies produced in a free market, as we described earlier) in the utilities sectors of modern economies. Large-scale enterprises such as electric companies that require heavy, permanent or semi-permanent installations of infrastructure such as power grids are described by those who teach this model of the ‘natural monopoly’ as incapable of making such investments without a guarantee from the local government that all competition will be prohibited within the municipality.

The history of the electric power industry in the Unites States, however, shows a different story—one in which the major driver of the ‘natural monopoly’ model was not the inefficiency of competitive markets, but rather the political collusion between state legislatures and early power industry executives who were, in many cases, given no choice but to keep legislators happy with rewards and employment or face losing the investments they had already made.

Intriguingly, however, Hayek makes only a passing mention of this obvious and most frequent application of the ‘natural monopoly’ argument. He opts instead to dismiss most instances of its application (rightfully) as “a form of special pleading by interested parties” (37), then to proceed into a bizarre hypothetical about England allowing only one make of automobile if it meant lower prices on all automobiles. He presents this as a potentially valid application of the idea, arguing only that such cases are “certainly not instances where it could be legitimately claimed that technological progress makes central direction inevitable. They would merely make it necessary to choose between gaining a particular advantage by compulsion and not obtaining it—or, in most instances, obtaining it a little later, when further technical advance has overcome the particular difficulties” (38).

Hayek the economist seems to consider such an interventionist policy at least plausible, if debatably desirable. But what of Hayek the liberal political theorist? Under what conditions would he find such a policy acceptable? Would the strict prohibition of initiating force, so frequently invoked among libertarians, be the standard? Not quite. “[I]t must be admitted,” Hayek writes, “that it is possible that by compulsory standardisation or the prohibition of variety beyond a certain degree, abundance might be increased in some fields more than sufficiently to compensate for the restriction of the choice of the consumer” (38) [Emphasis mine.].

Let us ask: what level of abundance would you require to surrender your right to choose how you wish to dispose of your income? What is the exchange rate between degrees of efficiency and the right to trade freely? And for producers: how compensated will you feel at the knowledge your automobile is less expensive when your business is being shut down by the government for offering customers too much diversity in the marketplace? Many who read this in today’s mixed economy will likely have similarly mixed feelings and mixed premises in their responses to these questions. Thus, let us reframe the issue to put it in stark relief.

Imagine that you live in a society that enacts such a policy of homogenizing the nation’s automobiles. The government is left to decide who will remain in the automobile business in the ways it usually decides such matters. The last businessmen to grovel will be the first to go. There is no more choice in make or model. Competition in quality and unique features is gone. You, however, are left with a less expensive automobile, your neighbors are left with less expensive automobiles, and the supply of them to the general public skyrockets. (This is a fantasy, remember, so you’ll forgive me if I pretend a government program is successful even if only in the short term.)

Now imagine that instead of automobiles, the product is healthcare.

How much are you willing to trade of your rights for greater efficiency? What is your price? And how strong a defender of economic freedom is Mr. Hayek? The answer is clear and tragic.

Hayek establishes here firmly and conclusively that he is not, in fact, much of a political theorist. He is ultimately a dryly calculating economist plotting your rights on a utility curve.  Though many of Hayek’s admirers will no doubt reject this assessment, it is difficult to argue with his own words as he lays out his fundamental basis for liberalism as such. “[T]he argument for freedom,” according to Hayek, “is precisely that we ought to leave room for the unforeseeable free growth” (38).

To anyone who values man’s fundamental rights; who believes that those rights are derived from his nature and not subject to popular will; who thinks that freedom is rightfully his; who rejects force as a necessary or proper ingredient in human social relationships; who recognizes that the history of human innovation and progress has rested on the freedom of man’s mind to study and master the world around him; who claims the prerogative to pursue his own self-interest; who retains his self-esteem; who holds his own happiness as the purpose of his life: the only proper answer, the only moral answer is “Absolutely not!”

The argument for freedom, Mr. Hayek, is the assertion of man’s right to his own life, a life that is its own justification. Nothing else is required and nothing else will do.

Hayek’s fourth chapter, “The ‘Inevitability’ of Planning”, thus leaves us back at the low-point of Chapter I. It is impossible, based on the philosophical framework established in the introduction and first four chapters, that Hayek could at this point offer a proper defense of liberalism. Though I hesitated to make the comparison earlier, hoping he might redeem himself, it is fair to say now that Hayek is scarcely better than many of the pragmatist politicians today who argue for capitalism as a practical benefit, make no mention of its moral values, and ultimately treat principles as loosely-held guiding ideas with little more substance than campaign slogans. He may be much farther toward the liberal end of the spectrum than many of them; it would be inaccurate to say otherwise. Ultimately, though, half-hearted, half-formed defenses of freedom by advocates who lack the tenacity to defend their professed values only facilitate their destruction.

The real Road to Serfdom is paved with incomplete defenses of liberty, and once one has allowed them to serve as the foundation for the defense of a free society, matters of degree are only matters of time.

Thoughts on ‘The Road to Serfdom’: Chapter 1, “The Abandoned Road

In Arts & Letters, Austrian Economics, Book Reviews, Books, Britain, Economics, Epistemology, Essays, Ethics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Modernism, Philosophy, Politics, Pragmatism, Western Civilization, Western Philosophy on September 11, 2013 at 7:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

This analysis is the second installment in a series of chapter analyses of Friedrich Hayek’s The Road to Serfdom. The previous analysis of Hayek’s introduction can be found here.

If Hayek’s introduction gave us a brief summary of the ideas and practices he is setting out to oppose and contextualized the progression toward a socialist political culture in the last half century of Europe’s history, his first chapter, “The Abandoned Road”, firmly roots his grievances in the present and the problems facing England at the time of his writing and seeks to explain how England (and the West more generally) arrived there. He describes the intellectual evasions, distortions, and faulted epistemology—often consisting of poorly defined key concepts —that led to and are, in his time, perpetuating the state of affairs he observes. He then proceeds to address the subject of liberalism and how socialists who misconceive of their own system do so at least as much with its antithesis. In the process, Hayek makes many excellent observations, but also succumbs to several dangerous philosophical errors and unsubstantiated claims against laissez-faire capitalism that tarnish what might otherwise be an outstanding defense against government controls.

Hayek begins the chapter with one of the most argumentatively powerful, poignant approaches that one can take in opposing socialist ideas: illustrating to those who support more moderate, tempered versions of statist controls that though they may differ in degree from those statists they oppose, the philosophical fundamentals they advocate are the same. “We all are, or at least were until recently, certain of one thing,” he writes,

“that the leading ideas which during the last generation have become common to most people of goodwill and have determined the major changes in our social life cannot have been wrong. We are ready to accept almost any explanation of the present crisis of our civilisation except one:  that the present state of the world may be the result of genuine error on our own part, and that the pursuit of some of our most cherished ideals have apparently produced utterly different results from those which we expected” (8).

Hayek’s point is well made and much needed at a time when such widespread, utter contradictions were even more severe than they are today. Writing to Britons in the 1940s, but with as much truth to offer Americans who stumbled over the same contradictions in the 1960s and 1970s, as the platitude “we are all socialists now” manifested on Nixon’s lips as “we are all Keynesians now” (and with less fundamental difference between them than Keynesians would have you believe), he asks us to recognize that “the tendencies which have culminated in the creation of the totalitarian systems were not confined to the countries which have succumbed to them” (8-9). Nor, for that matter, are they confined to those times, and Hayek’s message to this effect—the importance of recognizing the same fundamental ideas across contexts—is as much needed today as it was then.

He goes on to recognize that the conflict between the Axis and Allied powers in World War II is fundamentally a conflict of ideas: “The external conflict is a result of a transformation of European thought in which others have moved so much faster as to bring them into irreconcilable conflict with our ideals, but which has not left us unaffected.” He is quick to point out, though, that “the history of these countries in the years before the rise of the totalitarian system showed few features with which we are not familiar” (9).

Such an appreciation for the motive power of ideas in human conflict was not so unique in Hayek’s time. In fact, the Allied leaders superlatively acknowledged the enemy they faced as “fascism” and condemned it explicitly (though the economic and social policies of FDR, along with his earlier overt flirtations with such ideas, may have made the condemnation somewhat ironic). If Hayek has a lesson to teach to this effect, it is most needed in today’s world, when the significance of philosophy is so frequently cast aside by the influences of multiculturalist nihilism and the failure, even in academia, to appreciate the role of broadly held cultural ideas in deciding man’s fate. At a time when the mention of a “clash of civilizations” invites accusations of oppressive Western chauvinism, Hayek’s acknowledgement that conflicting fundamental ideas may lead to actual conflict is a welcome reminder.

Much of the chapter appropriately looks to fundamental ideology as the cause for the rise of Nazism, seeing the rejection of individualism in favor of collectivism as a necessary prerequisite to the “National-Socialist revolution” and a “decisive step in the destruction of that civilisation which modern man had built up from the age of the Renaissance.” The spirit of this argument is undoubtedly sound. However, the method by which he proceeds to argue it leaves much to be desired. Hayek proceeds down a path of questionable historical interpretations, a half-cocked swipe at moral philosophy (that, as we shall see, is flawed but not unfamiliar to readers of this site), and ultimately an incomplete defense of the liberal policies he hopes to defend—showing the consequences of that brief glimpse of skepticism we witnessed in the introduction.

In his historical contextualization of the trends he observes, Hayek writes,

“How sharp a break not only with the recent past but with the whole evolution of Western civilisation the modern trend towards socialism means, becomes clear if we consider it not merely against the background of the nineteenth century, but in a longer historical perspective. We are rapidly abandoning not the views merely of Cobden and Bright, of Adam Smith and Hume, or even of Locke and Milton… Not merely the nineteenth- and eighteenth-century liberalism, but the basic individualism inherited by us from Erasmus and Montaigne, from Cicero and Tacitus, Pericles and Thucydides is progressively relinquished” (10).

Hayek’s invocation of these great names in the history of liberal thought is, in most instances, not misplaced. It is true that all emerged from Western civilization and that to varying extents they all fit well into the liberal, individualist tradition he means to illustrate. One would be wise to regard the inclusion of Hume and Montaigne, paragons of skepticism, as only conditional points on such a list, though Hayek’s own skepticism and that of many libertarians in his tradition would certainly allow them.

More broadly, however, it must be said that the individuals mentioned, no matter how great their contributions to political and social thought, were not often the rule in their place and time, but the exception. One can admire the works of Pericles, but should bear in mind the fickle reception he received among the Athenians. Likewise, Cicero may deserve praise above any in his time, but for those virtues we might praise he was slaughtered without trial by a dictator who faced no consequences.

Thus, as admirable as Hayek’s examples may be, to suggest that they were the norm throughout most of Western civilization is unsubstantiated. They may have embodied those qualities that most distinguished Western civilization and have been most responsible for its progress, but it was a progress often achieved by much-abused minorities. The Renaissance, Enlightenment, and nineteenth century were the high-points of individualism and Western ideals, and Hayek is right in singling them out. However, he also runs the risk of obscuring the philosophical roots of National Socialism, itself the product of contrary trends in Western thought, by engaging in careless generalization from those high-points and distinguished individuals to Western history in general.

Departing from this somewhat problematic historical interpretation, Hayek moves through a favorable discussion of the benefits of economic and political freedom on scientific innovation. His recognition and argument that “[w]herever the barriers to the free exercise of human ingenuity were removed man became rapidly able to satisfy ever-widening ranges of desire” is incontestable (12). He also anticipates the common objections by socialist apologists today who characterize the Industrial Revolution as a period of oppression by citing the difficult living conditions of the urban poor. He rightly rejects this by contextualizing the period in the experiences and expectations of those who lived through it, writing that

“[w]e cannot do justice to this astonishing growth if we measure it by our present standards, which themselves result from this growth and now make many defects obvious. To appreciate what it meant to those who took part in it we must measure it by the hopes and wishes men held when it began… that by the beginning of the twentieth century the working man in the Western world had reached a degree of material comfort, security, and personal independence which a hundred years before had seemed scarcely possible” (12-13).

What proceeds from there is where Hayek seems on unsteady footing, as he briefly undertakes the task of trying to explain what ideas diverted man from the individualist course set from the Renaissance to the nineteenth century. Inexplicably, Hayek credits an excess of ambition as responsible for the turn toward socialism. He writes,

“What in the future will probably appear the most significant and far-reaching effect of this success is the new sense of power over their own fate, the belief in the unbounded possibilities of improving their own lot, which the success already achieved created among men. With success grew ambition—and man had every right to be ambitious” (13).

He returns to the idea again later, writing that,

“Because of the growing impatience with the slow advance of liberal policy, the just irritation with those who used liberal phraseology in defence of anti-social privileges, and the boundless ambition seemingly justified by the material improvements already achieved, it came to pass that toward the turn of the century the belief in the basic tenets of liberalism was more and more relinquished” (14-15).

It is here that Hayek’s inadequacy in analyzing philosophical ideas, and perhaps an economic bias toward looking at matters purely as a function of supply and demand, begins to show. The notion that an inadequate or insufficiently rapid provision of living standards by capitalism is to blame for the introduction and spread of socialism is baseless, as it not only commits the philosophical error of attributing a total change in fundamental beliefs to external conditions, but also ignores the fact that the introduction of socialist policies preceded the slowdown in quality of living improvements in the Western world—and, furthermore, that the slowdown still wasn’t all that slow, as anyone who looks at world history from 1870 to 1928 will readily observe.

Thus, Hayek’s notion that “ambition” is somehow to blame is irrational. If we accept the notion that capitalism was responsible for man’s improved quality of living, then the only function that ambition should serve in this context is to drive men back toward capitalism and its fundamental values—not toward socialism. To the contrary, it is not an excess of ambition that drove men away from capitalism, but the fact that the philosophical principles that underlie and empower capitalism were not consistently established in the minds of its practitioners in the first place. That is: those who lived under capitalism had not explicitly embraced reason as man’s means of acquiring knowledge, nor rational egoism as his proper ethical system, and thus lacked the fundamentals on which individualism rests. Thus, ultimately, the individualism that Hayek admires was present in the West, but not firmly rooted enough to survive the philosophical revival of Plato in the forms of Kant and Hegel. Undercut by their philosophies, in the face of Marx and Engels the West was a pushover.

Hayek’s invocation of excess ambition as an explanation for socialism shows that though he understands the role of political ideology in man’s fate, his ability to explain how that ideology stems from deeper levels of philosophy is severely lacking. Unfortunately, he does not allow this lack of expertise to stop him from making such baseless speculations as to the roots of socialism being in man’s ambition, nor from making a similarly arbitrary and more dangerous conjecture: that the essential quality that animated the Renaissance and Western civilization’s embrace of individual man was “tolerance.”

“Tolerance,” he writes, “is, perhaps, the only word which still preserves the full meaning of the principle which during the whole of this period was in the ascendant and which only in recent times has again been in decline, to disappear completely with the rise of the totalitarian state” (3). Hayek offers no further explanation to support this statement or the implication that tolerance was the animating virtue of these times, or at the very least played some crucial role in it. Nor does he illustrate the point with citations or examples. The claim stands alone.

We are thus left to speculate as to his actual beliefs on this point. However, a look at a somewhat younger contemporary libertarian economist who dabbled in political writings such as this and who shares certain philosophical fundamentals—namely a skepticist epistemology—may shed some light on the claim. Milton Friedman similarly cited ‘tolerance’ and, more specific to Friedman’s case, “tolerance based on humility” as the fundamental basis of his libertarianism. That is: the rejection of statism based not on the rights of individuals but based on the fact that no one can rightly initiate force against another since the initiator has no basis by which to know whether the cause in whose name he would initiate that force is right or wrong. Put simply, it establishes a social system in which peaceable relations between men depend upon the impossibility of establishing objective principles. In which ignorance, not knowledge, is man’s saving grace. In which moral certainty is perceived to be the root of all tyranny.

(I will not go further into Friedman’s confused moral philosophy here, though it is encouraged that the reader reference my article “The Failures of Milton Friedman” for a fuller explanation his views and the dangers they entail.)

Whether Hayek’s implication in citing “tolerance” as the great virtue lost by the rise of collectivism is in line with Milton Friedman’s connections of “tolerance” and libertarianism is unknown, but the fact that the two men share a skepticist epistemology and both ultimately land at the same word to describe the virtue that they see to be animating their ideals cannot be ignored and provides a possible explanation for Hayek’s unsupported statement.

Where skepticist epistemology and haphazard forays into moral philosophy are found, an incomplete defense of freedom usually follows. So it is here with Hayek, who shows us precisely his conception of freedom and how it should be fought for, writing, “There is nothing in the basic principles of liberalism to make it a stationary creed, there are no hard and fast rules fixed once and for all. The fundamental principle that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible to coercion, is capable of an infinite variety of applications” (13).

I will not engage with this statement directly, as it has been soundly argued elsewhere in other essays from this publication such as “The Philosophy of Capitalism” and Brian Underwood’s “Political Capitalism”, as well as in Ayn Rand’s essays “Man’s Rights”, “The Objectivist Ethics”, and “The Nature of Government.” I will observe simply that for a man accepted by many to be symbolic of twentieth century liberalism to take such a pragmatic, unprincipled approach to the defense of freedom stands as much as a symbol of the unsteadiness and lack of a moral basis in that movement as it does a condemnation of the man himself. What’s more, it shows that no sound defense of liberty can be based on a skepticist epistemology. A defense of man begins with an admiration for man and his nature as a rational, efficacious being. Whoever hopes to undertake a task so daunting and so crucial as a defense of man’s rights against oppression cannot enter the fray with a puttering “Who knows?!” as his battle cry.

It is the inevitable fate of such pragmatists that they should ultimately abandon a strict conception of liberty and that they should shrink principles down to the level of momentarily expedient guidelines to be cast aside at the first sign of opposition. We must be immensely grateful that the Founding Fathers of the United States had the moral basis to recognize and firmly assert the rights of “life, liberty, and the pursuit of happiness”, yoking future statesmen to these principles rather than settling for such a shrugging recommendation that they “make as much use as possible of the spontaneous forces of society.” We must be proud that Jefferson swore “an oath upon the altar of God eternal hostility against every form of tyranny over the mind of man”, and not merely an oath to “resort as little as possible to coercion.”

The distortions, sadly, do not end there. Hayek confounds our expectations further by seeking to balance his critique of socialism with a contrary charge against advocates of full individual rights, writing that “[p]robably nothing has done so much harm to the liberal cause as the wooden insistence of some liberals on certain rough rules of thumb, above all the principle of laissez faire” [emphasis mine] (13).

Hayek’s ambiguous accusation against advocates of laissez-faire, that they are somehow partly responsible for the rise of socialist policies, apparently rests on the capitalists having viewed the principle as a “hard and fast… rule which knew no exceptions” (13).  He goes on to explain that the downfall of liberalism is explainable by reference to the liberal’s strict adherence to the laissez-faire principle, finding it “inevitable that, once their position was penetrated at some points, it should soon collapse as a whole” (13).

At this point, Hayek quickly reveals several key implications: that advocates of laissez-faire are partly responsible for the rise of socialism, that laissez-faire is a flawed system, and that its legitimacy has indeed “collapse[d]” through being disproven. He continues, “No sensible person should have doubted that the crude rules in which the principles of economic policy of the nineteenth century were expressed were only a beginning, that we had yet much to learn, and that there were still immense possibilities of advancement on the lines on which we had moved” (14).

To be clear: Hayek is not referring to changes in application or translation of the existing principles, but a shift in principles as such. ‘What’, one must ask, ‘could have fundamentally changed so drastically in the period in question, to make the basic principles of economic freedom no longer relevant or applicable in one period as they had been in the previous one?’ According to Hayek, it was the inevitable result of having

“gained increasing intellectual mastery of the forces of which we had to make use. There were many obvious tasks, such as our handling of the monetary system, and the prevention or control of monopoly, and an even greater number of less obvious but hardly less important tasks to be undertaken in other fields, where there could be no doubt that the governments possessed enormous powers for good and evil;” (14)

Thus, Hayek posits that our “increasing intellectual mastery” (though I can think of a century of economic instability primarily brought by government controls that would refute this alleged “mastery”) is to credit for government intervention in the economy. He implies that the belief that governments could regulate the economy by force somehow translates to the presumption that they should do so—a significant leap that Hayek does not and cannot, without reference to philosophy, explain. Not only does this misconceive of the problem; it carelessly implies that those statesmen of earlier times did not intervene in the economy because they could not conceive of how to do so. To the contrary: earlier liberal thinkers did not plead ignorance in the face of proposed interventionism—they opposed it on principle, and suggesting otherwise is a discredit to their defenses of liberty.

Hayek’s passing statements apparently endorsing the “control of monopoly” and his suggestion that “the governments possessed enormous powers for good and evil”—that is, that good could be achieved by force just as surely as evil—only add layers to the disappointing picture established thus far. He goes on to make an unconvincing argument that the slow pace of economic progress under liberalism was to blame for people having turned away from it—a confounding claim to make about a century that witnessed the most rapid and dramatic rise in quality of life in the history of humankind, and one that even Marx himself would likely have disputed as unsubstantiated.

Finally, he ends the chapter on an agreeable note with a brief description of how the geographical flow of ideas—from Britain and the US east to continental Europe—reversed at this period in history and the prevailing current turned westward, exporting German socialist ideas to the Atlantic. He astutely summarizes how the ideas of Marx, Hegel, List, Schmoller, Sombart, and Mannheim overtook the intellectual tone set by the English after 1870. He ends on the essential point that it was ultimately the lack of confidence in their own convictions by Western thinkers that made this shift possible. In this effort—narrating the history of philosophical and cultural trade balances—Hayek is excellent and displays the power of which he is capable when he remains in his purview, capitalizing on his unique perspective.

After a promising introduction, the first chapter of Hayek’s book has proven shaky at best. The flaws are numerous and fatal: a questionable interpretation of the histories of both liberalism’s origins and socialism’s ascendance, a dangerously inadequate grasp of the role of moral philosophy in the histories he details, a desire to blame liberalism for its own destruction with insufficient substantiation, a skepticist rejection of principles that leads to a pragmatist’s approach to policy, and, finally, a rejection of laissez-faire capitalism.

To his credit, Hayek is overall favorable on matters of economic history, arguing effectively for the role of capitalism in promoting scientific progress and advances in standards of living. However, his suggestion that advancement in the nineteenth and early twentieth centuries was slow, and that this slowness of progress is to blame for the West’s acceptance of socialism, is largely without a supporting argument, is contrary to the unrivaled history of economic progress that we know to have characterized that period, and, incidentally, indulges a determinist philosophy that we saw him as likely to avoid in the introduction—a serious point of inconsistency.

Overall, Hayek’s first chapter is a dramatic step down from the introduction and a disappointment considering the reputation of the book. It is, in its own way, an abandonment of the road, if in a slightly different direction than those whom Hayek criticizes. Though future chapters may redeem the work to some extent, the fact that so much ground is lost in the first few pages is a severe blow, but one that is in keeping with the suspicions which we noted in assessing the introduction and which we warned to be on the lookout for. It illustrates well the consequences of even small cracks in one’s intellectual foundation and confirms the value of critically applying careful philosophical detective work in reading works such as this, no matter their reputation.

Thoughts on ‘The Road to Serfdom’: Introduction

In America, Arts & Letters, Austrian Economics, Book Reviews, Books, Britain, Economics, Historicism, History, Humane Economy, Humanities, Liberalism, Libertarianism, Literature, Philosophy, Politics, Western Civilization, Western Philosophy on September 9, 2013 at 7:45 am

Slade Mendenhall

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

This piece commences a series of analyses on Friedrich Hayek’s The Road to Serfdom. For those unfamiliar with the work, first published in 1943, it details the famed Austrian economist’s observations, drawn from having lived in Austria in the years after World War I, witnessing firsthand the culture of political ideas that preceded and led to the rise of Nazism there, and then, some decades later, living in England, teaching at the London School of Economics, and observing the rise of similar ideas at work in English political culture at the onset of her own period of experimentation with socialism.

Britain was, at the time, feeling the onset of what would become a set of devastating postwar economic ailments: the loss of many colonies—sold off one by one to finance the war, severe physical destruction (though not as bad as on the Continent), a trade imbalance skyrocketing the prices of much-needed American goods, and an economy of permits and privation in basic commodities. The end of the war would bring the sweeping 1945 victory of Labour and greater troubles with the onset of the Brain Drain, a period of bitter class resentment, and nationalizations of industry. Shortly after the second edition of The Road to Serfdom was printed in 1946, England was facing strikes, falling exports, and almost £200m lost every week as dollar convertibility was introduced in 1947.

In the midst of it all was a growing culture of socialism in both major parties. As Hayek wrote, “the socialism of which we speak is not a party matter, and the questions which we are discussing have little to do with the questions at dispute between political parties” (3). Though Labour would be its more avowed exponents, the fundamentals of socialist ideology were well enough embedded so as not to be challenged at any basic moral or systematic level by either side. What’s more, many Britons would see this as a proud new political and economic identity for a Britain without an empire. Historian Norman Stone writes,

“the British were pleased with themselves, supposing also that their example was one to be widely followed as some sort of ‘third way’ between American capitalism and Soviet Communism… combining the ‘economic democracy’ of Communism and the ‘political democracy’ of the West: socialism without labour camps…. People who argued to the contrary [such as Hayek—ed.] were in a small minority… but even in the later 1940s these supposedly half-demented figures were starting to have reality on their side. It struck with a ferocious blow, in the second post-war winter. The money began to run out, and the government became quite badly divided as to priorities.”

It is easy to imagine how remorsefully vindicated Hayek must have felt in those first few years after the publication of The Road to Serfdom—affirmed and disappointed in the way that all those who warn of impending danger are wont to feel.

Though the book would be praised by proponents of liberalism from the time of its publishing to the present and cause a stir among his peers in academia, policymakers would be, as they ever are, roughly a generation late in feeling the aftershocks of this groundbreaking statement. By the time began its creep into the political lexicon, Hayek had moved on from the LSE, going on to teach at the University of Chicago (in its Committee on Social Thought, as the School of Economics vehemently opposed his hiring under their banner), the University of Freiburg, the University of California, and the University of Salzburg, where in 1974 he was awarded the Nobel Prize in Economics.

Since the onset of the 2007 recession, sales of The Road to Serfdom, along with other works that challenge the fabric and assumptions of modern Western philosophy, political culture, and economics such as Ayn Rand’s Atlas Shrugged, have skyrocketed. In 2010, 66 years after its publication, The Road to Serfdom became a #1 bestseller on Amazon.

As this and other such works grow in popularity, it is important to take a second look at them, assessing both their virtues and faults, their accomplishments and their shortcomings. The analysis that follows sets out to do just that. It is an overall favorable assessment, as this author agrees with many of Hayek’s basic political premises. However, for that reason, it will also more scrupulously critique and highlight perceived flaws, ambiguous wording, platitudes, and those floating abstractions common in political treatises that, though they seem plausible at first glance, prove deeply flawed when translated into concrete practice. Though these analyses will strive to give an adequate overall summary of what Hayek himself writes, the reader is encouraged to read Hayek’s words along with these critiques and to judge for himself their validity.

It is broadly understood that those concerned with the cause of liberty must be vigilant in our criticisms of its destroyers, but it is no less essential—if not more so—that we be judicious toward those authors and works on which we base our own beliefs, as every philosophy is a structure and every flaw in that structure a weakness. The closer our faults are to our foundations, the greater our vulnerability. As more and more libertarians and capitalists turn to works such as Hayek’s to form understandings and shape their beliefs, let us look carefully to what ideas we are resting upon. We have nothing to lose but our contradictions.

Note on citations: all page references, unless otherwise stated, are based on the February 1946 edition published by George Routledge & Sons LTD.

Introduction

Hayek’s introduction effectively sets the tone for the rest of the work by illustrating his own unique perspective, having come “as near as possible to twice living through the same period—or at least twice watching a very similar evolution of ideas,” (1) then giving us a brief summary of what wisdom that twice-lived experience has offered him: an understanding of the linkages between the spread of socialist ideas, the various debates it engenders in countries operating on similar philosophical premises, and the eventual rise of dictatorship.

The summary of events transpiring in the half-century leading up to World War II that Hayek describes is perhaps most powerful and most distinctive for its recognition of the role of ideas in man’s life. Hayek superbly recognizes the consequential nature of ideas in human life, writing “If in the long run we are the makers of our own fate, in the short run we are the captives of the ideas we have created. Only if we recognise the danger in time can we hope to avoid it” (2).

In this short passage, just a few paragraphs in, Hayek has already distinguished himself from the long and destructive philosophical and political tradition of determinism and, more subtly and implicitly, by viewing the connection between man’s ideas and actions, rejected the mind-body dichotomy, which has long divided philosophers and intellectuals between those who concerned themselves with the workings of man’s mind, dismissing his physical actions as inconsequential marginalia, and those concerned with man’s physical nature but who view the content of his mind as meaningless.

These abstract philosophical notes are crucial, allowing us to establish several inferences as to what misguided political camps and ideologies Hayek will successfully avoid being mired in. By denying the metaphysical premise of determinism (whether in its environmental or genetic forms), Hayek embraces the concept of free will and the essential premise that ideas matter, inviting us to commence his work with the presumption that what wisdom we glean from it individually might be actionable and applicable in our own lives and experiences. This quickly separates him from the philosophical premises of the Left (or, to indulge a common but unbearably ironic label, “progressivism”), whose policies largely rest upon some variant of determinist metaphysics, leading them perpetually to the conclusion that man, left to his own free will, is doomed to irrationality, but that the ideal society is achievable through the right amount of systematic tweaking and statist controls. It already begins to become clear what premises lead Hayek to become the symbol of liberalism he is today.

In embracing the importance of the mind and the function of ideas, however, he does not assume a mysticist rejection of reality. To the contrary, he presents to us the implicit proposition that the “ideas we have created” will have very real consequences, and that to change our fates we must scrutinize and perhaps alter our ideas and those of our culture. It rests on the recognition that man is not immune from his own illogic and that, to paraphrase Rand, while the practice of reason may be evaded, the consequences of evading reason cannot be. This acknowledgment separates him from the premises that underlie much of conservative political thought, also concerned with the perfection of man, but oriented toward controlling his thoughts and beliefs, viewing the force of government as a means of instilling values in the minds of its people to produce a more moral citizenry.

Hayek’s Road to Serfdom is a warning, and all warnings are fundamentally rejections of the determinist premise.  What’s more: it is an intellectual warning connecting certain ideas and beliefs to their metaphysical consequences. While common logic, particularly among those who recognize the practical benefits of liberty, would suggest that that which one values should be left free to flourish, to the contrary, both progressives and conservatives seek to control those aspects of man which they most value—progressives, man’s body; conservatives, man’s mind—relegating its opposite to a status of expendability.

If all philosophy can be thought of as the great duel between two men—Plato and Aristotle—both sides of the political spectrum in Hayek’s time, as in our own, are operating on a fundamentally Platonic premise that divides man’s physical and spiritual nature. True liberalism is fundamentally a diversion from this view in favor of the Aristotelian view of man as a unified entity, to be treated and thought of as such, his life and fate as his own, and his right to dispose of them as he sees fit unchallenged. Thus, Hayek, as an exponent of such liberalism, whether he recognizes and describes it as such himself, begins with this philosophical framework. Whether he maintains it in the chapters to come is a separate question, but his grounding is thus far solid.

Wasting no time, Hayek soon enters the fundamental comparison of his book: that of the ideological roots of Nazism and the rise of socialist thought in Britain precisely at a time when the two nations are at war.

Much equivocating in classrooms, editorial pages, and student coffee shops has transpired in the last seventy-plus years as to the differences between Nazism and true socialism, with socialist apologists quibbling about how Nazis abused what was a noble ideal in socialism. Most engage in such momentous evasions and distortions as to treat socialism and fascism as in any way opposites, portraying what is in fact a genus-type distinction as fundamentally inimical, when they are, in fact, merely differences in application of the same basic premises.

Hayek tolerates none of this, observing,

“Few are ready to recognize that the rise of Fascism and Nazism was not a reaction against the socialist trends of the preceding period, but a necessary outcome of those tendencies… As a result, many who think themselves infinitely superior to the aberrations of Nazism and sincerely hate all its manifestations, work at the same time for ideals whose realization would lead straight to the abhorred tyranny” (3).

Indeed, one cannot help but feel that little has yet changed in Western intellectualism when Hayek describes the parallels between Germany after World War I and England during World War II: “There is the same contempt for nineteenth-century liberalism, the same spurious ‘realism’, and even cynicism, the same fatalistic acceptance of ‘inevitable trends’… It does not affect our problem that some groups may want less socialism than others, that some want socialism mainly in the interest of one group and others in that of another. The important point is that, if we take the people whose views influence developments, they are now in this country in some measure all socialists” (2-3).

More familiarity ensues when Hayek notes how Germany was once held in England and other Western countries as an ideal to be pursued and how that idealized conception has since been transferred elsewhere: “Although one does not like to be reminded, it is not so many years since the socialist policy of [Germany] was generally held up by progressives as an example to be imitated, just as in more recent years Sweden has been the model country to which progressive eyes were directed” (2). One so often sees the case of Swedish socialism invoked as a statist ideal in today’s world, since the recession of 2008, but it is often forgotten how old this example is—mentioned here by Hayek in the 1940s, discredited for its proclaimed cultural superiority by Ayn Rand in the 1960s, but still going strong as part of statist mythology today.

In support of his parallel, Hayek rightly rejects the concrete superficial details of German National Socialism to which the broader abstraction of ‘fascism’ is so unproductively and irrationally married in the minds of most who refer to and write of it. More than any other ideology, the word ‘fascism’ has attained a pejorative quality that has overcome its literal meaning and distorted the popular understanding of it to such an extent that most today will readily proclaim that they reject it, but remain utterly incapable of defining it. Modern dictionaries and encyclopedias are similarly unhelpful, as much victims of the disintegrated epistemology of their times as those who reference them.

(This is not the place to go into a fuller explanation of the meaning of fascism, but those interested would do well to refer to my previous essay on the subject, “Understanding Fascism”.)

Thus, in Hayek’s understanding of National Socialism will be found no deterministic German racial explanations, recognizing both the influences of German fascist thought on the English and the early role played by Thomas Carlyle and Houston Stewart Chamberlain, a Scot and an Englishman, on the formation of fascist ideas.

A cautious approach is wise here, as while no racial explanation to the effect that some innate German-ness led to National Socialism can be held as rational, the role of culture and philosophy in German society is indispensable to understanding its rise. Hayek goes on to write, “It would be a mistake to believe that the specific German rather than the socialist element produced totalitarianism. It was the prevalence of socialist views and not Prussianism that Germany had in common with Italy and Russia—and it was from the masses and not from the classes steeped in the Prussian tradition, and favored by it, that National-Socialism arose” (7).

True as much of that is, to say “the socialist element produced totalitarianism” is perhaps only to scratch the surface by acknowledging that one political idea was connected to another It does not explain why the socialist element was accepted in the first place. For that, one must look to German culture. To that end, Leonard Peikoff’s The Ominous Parallels offers an incomparable philosophical genealogy of Nazism that would serve as a necessary complement to Hayek’s work, assuming Hayek continues down the path he is setting out here.

Perhaps the most detrimental statement in Hayek’s introduction is said rather in passing. After having written that “by moving from one country to another, one may sometimes watch similar phases of intellectual development… They suggest, if not the necessity, at least the probability, that developments will take a similar course” (1), “some of the forces which have destroyed freedom in Germany are also at work here” (2), and “our chance of averting a similar fate depends on our facing the danger and on our being prepared to revise even our most cherished hopes and ambitions if they should prove to be the source of the danger” (2-3), Hayek betrays the premise upon which he has built up his whole work by conceding, “All parallels between developments in different countries are, of course, deceptive; but I am not basing my argument mainly on such parallels” (3).

Certainly it must be admitted that parallels between such developments are not deterministic or without mitigating factors, not immune to changes in trajectory. But to suggest that they “are, of course, deceptive” is perilously asserting a skepticist rejection of the principle of causality and the recognition in earlier statements of the role of ideas. Hayek would do well to apply the same social scientific rigor to the subject of politics that he does in economics, recognizing that just as effects of supply and demand on prices are assessed by holding constant certain variables, so the effect of ideas presumes a measure of ceteris paribus, but this does not negate the principle demonstrated by such models or demand of the author some token measure of self-doubt.

In all, Hayek’s introduction is strong and offers much to think about, hope for, and consider proceeding onward into his analyses. His overall support for the importance of ideas, propensity (if somewhat unconfidently) toward conceptual integration and a comparative approach to political ideologies, and positive views of individual man and political freedom make for a promising start. Hayek even provides sound reasoning for why England should be interested in engaging in such self-critical analysis, arguing,

“[T]his will enable us to understand our enemy and the issue at stake between us. It cannot be denied that there is yet little recognition of the positive ideals for which we are fighting. We know that we are fighting for freedom to shape our life according to our own ideas. That is a great deal, but not enough. It is not enough to give us the firm beliefs which we need to resist an enemy who uses propaganda as one of his main weapons not only in the most blatant but also in the most subtle forms. It is still more insufficient when we have to counter this propaganda among the people under his control and elsewhere, where the effect of this propaganda will not disappear with the defeat of the Axis powers… It is a lamentable fact that the English in their dealings with the dictators before the war, not less than in their attempts at propaganda and in the discussion of their war aims, have shown an inner insecurity and uncertainty of aim which can be explained only by confusion about their own ideals and the nature of the differences which separated them from the enemy. We have been misled as much because we have refused to believe that the enemy was sincere in the profession of some beliefs we shared as because we believed in the sincerity of some of his other claims” (4).

Likewise, we begin to see his potential faults: a propensity to begin at the level of politics without looking more deeply toward philosophical and cultural ideas, and a creeping skepticism that may lead him to an unconfident defense of his comparative approach and, thus, the warning he seeks to achieve with it. Whether these virtues and potential faults continue, only time and further reading will reveal, but as for the introduction, Hayek hits all of his marks: providing context, provoking questions and challenges, establishing a conceptual framework, and enticing our curiosity. A solid start to a modern defense of classical liberalism.

A Tale of the Rise of Law (Part Two of Two)

In Arts & Letters, Britain, Fiction, Historicism, History, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Liberalism, Literary Theory & Criticism, Literature, Politics, Western Civilization, Writing on March 13, 2012 at 1:00 am

Allen Mendenhall

This essay originally appeared here at Inquire: Journal of Comparative Literature (Issue 2.1, 2012)

As the sovereign, or king, was never fixed in Geoffrey’s lifetime, even if the idea of sovereignty was, The History treats law as transcending any particular human sovereign. Geoffrey creates a need for law by portraying it as sovereign, anchored in a classical past and cloaked in religious terms. Austin works as a functional lens through which to view The History’s suggestion that law is necessary to provide shape to the nation-state. Geoffrey’s text signals what Mooers calls the “outgrowth” of twelfth-century legal principles that enabled coercive, nationalist projects and agendas before people could speak of concepts like nation-states. Put another way, Geoffrey was an originator of and a participator in twelfth-century jurisprudence not necessarily a transcriber of an ancient corpus juris.5 This claim is not to reduce Geoffrey’s text to the grade of propaganda but rather to adduce jurisprudence from The History to support a claim that Geoffrey champions legal theory instead of simply documenting it. Because the term “uniform and rational justice” does not admit ready definition, I defer to Mooers’s clarifying focus on the comprehensive systemization of law manufactured by royal writs and other like instruments (341). Uniform and rational justice had to do with the proliferation of court systems whereby centralized authorities could begin to impose and enforce sets of common, consistent rules. The twelfth century was, after all, the age laying the institutional structures of the Anglo common law.6 The common law was the distillation of custom (a claim made by its iconic protagonists such as Bracton, Fortescue, and St. German) and thus was of time immemorial, beyond the memory of man. But the solidification of the common law as a mass system enforceable by a centralized body – the precursor to the modern state – began in the twelfth century. Roman law may have influenced these common, consistent rules and inspired Henry I, Matilda, Henry II, Geoffrey and their contemporaries, but tracing the concept of uniform and rational justice back to pre-Britain is not my aim, for that would entail looking beyond Britain in a way that Geoffrey refuses (or fails) to do. Medieval and early modern common law derived its authority from religion, and medieval jurists claimed unequivocally that common law was derived from God.7

Geoffrey’s first sustained treatment of law and the sovereign and their relationship to uniform and rational justice appears at the end of Brutus’ section. Here, Geoffrey submits that when Brutus built his capital on the River Thames, Brutus not only presented the city “to the citizens by right of inheritance,” but also gave those citizens “a code of laws by which they might live peacefully together” (74). Coming as they do after Brutus’ many battles and conquests, these laws suggest peace and order befitting a civilization prophesied by a goddess: Diana. No sooner is this putative history of a nation professed in terms of law than it is consumed in mythology and institutional legend. That Brutus, the eminent Trojan, would establish this city (“Troia Nova” or “New Troy”) suggests that the British legal system had the proper pedigree, according to Geoffrey and his contemporaries. 

Authored during the reign of Henry II in the late 1180s, roughly half a century after the publication of The History, Ranulf de Glanvill’s landmark legal treatise, The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, is important as it suggests that The History reflects ideas common to the period, showing the workaday application of various strands of jurisprudence. Moreover, like The History, The Treatise anchors law in history and tradition, asserting that the “laws and customs of the realm had their origin in reason and have long prevailed,” and as if to neutralize anxieties about the fact that many of these laws remained unwritten, Glanvill adds that if “merely for lack of writing, they were not deemed to be laws, then surely writing would seem to supply to written laws a force of greater authority than either the justice of him who decrees them or the reason of him who establishes them” (2). The epigram preceding the prologue of Glanvill, apparently affixed to the text after Glanvill’s death, adds to this invocation of history and celebrates Glanvill himself as “the most learned of that time in the law and ancient customs of the realm” (1). Foregrounding custom and tradition seems like a strategy for both Geoffrey and Glanvill as well as other contemporary writers who sought to anticipate objections to law or to mobilize support for legal mechanisms currently in flux (because the monarchy is in flux).     

The History is thus a model for government and for those subject to government. It mythologizes what law can be – derivations of divine prophesy couched in terms of Roman mythology and not Christian truth – and so inspires readers to ensure that law realizes its full potential. From Geoffrey’s attention to Brutus, for instance, readers are supposed to learn that law corresponds with peace and that the king initiates and sanctions law. It is Brutus, after all, who drives away the giants from the caves of Britain into the mountains and who commands the populace to “divide the land among themselves,” “cultivate the fields,” and “build houses” (72). Geoffrey uses Brutus to establish the image of an authoritative king and, more specifically, a glorified body as a site of sanctified authority.8   

Glanvill underscores the centrality of peace to law and even suggests that law, which vests in the king, endeavours primarily toward peace and harmony. Glanvill opens by rendering law as the sovereign’s decorative yet lethal façade: “Not only must royal power be furnished with arms against rebels and nations which rise up against the king and the realm, but it is also fitting that it should be adorned with laws for the governance of subject and peaceful peoples” (1). Like Geoffrey, Glanvill does not put a name on the sovereign; he merely extols law and its utility to the king. These lines suggest that peace cannot exist without war and that law obtains in the jurisdiction not to make peace or war but to assist the king in the functioning of his office. Uniform and rational justice does not arise for its own sake but for the service of the sovereign so that he “may so successfully perform his office that, crushing the pride of the unbridled and ungovernable with the right hand of strength and tempering justice for the humble and meek with the rod of equity, he may both be always victorious in wars with his enemies and also show himself continually impartial in dealing with his subjects” (1). For Glanvill and for Geoffrey, law is mostly about utility to the king in that it sanctions sovereign violence and centralizes power such that one individual, the sovereign, can issue commands to his subjects, demand the submission of his subjects to his authority by visiting punishment upon those who violate his commands and, therefore, ensure the habitual obedience of multiple subjects across a vast territory.

The lack of a centralized authority or definite sovereign is the reason that Britain falls into disarray when, after Brutus’ death, Brutus’ sons Locrinus, Kamber, and Albanactus divide the kingdom of Britain into thirds (Geoffrey 75). As a result of this partition, the brothers are unable to maintain the military presence necessary to preserve the polis and its laws, and therefore the island suffers from foreign invasion and bloodshed. Likewise, Maddan’s sons quarrel over the crown upon Maddan’s death, and as a result, law becomes something oppressive as one son, Mempricius, given to sodomy and other “vices,” murders the other son, Malin, and “by force and by treachery” does away with “anyone who he feared might succeed him in the kingship” (78). Unlike Brutus, Mempricius exercised “so great a tyranny over the people that he encompassed the death of almost all the more distinguished men” (78). Geoffrey redeems law by giving Mempricius the fate of being devoured by wolves, presumably due to his despotism (78). The suggestion here is that although laws are, as Austin claims, the commands of a sovereign, a sovereign like Mempricius will forfeit sovereignty if his commands take on forms that the polis cannot or will not habitually obey. God or Nature will destroy him for that failing, since the devouring by wolves seems to have some kind of divine justice. Such bodily mutilation signifies destruction of law itself; as Goodrich points out, law and the body are interactive in religious terms:

[The annunciation] is logos, the word as incarnation of divine presence, the spirit made flesh. For the law, the spirit made flesh takes the form of a text, vellum or skin in which is inscribed the form of the institution, of society and its subjects as the unified members and membrane of a body, the corpus iuris civilis or civilised body, the corpus mysticum or body politic, Leviathan or law. (248-49) Read the rest of this entry »

A Tale of the Rise of Law (Part One of Two)

In Arts & Letters, Britain, Christianity, Fiction, Historicism, History, Humanities, Imagination, Jurisprudence, Justice, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Politics, Rhetoric, Rhetoric & Communication, Western Civilization on March 9, 2012 at 10:09 pm

Allen Mendenhall

This essay originally appeared here at Inquire: Journal of Comparative Literature (Issue 2.1, 2012)

Geoffrey of Monmouth’s The History of the Kings of Britain is a tale of the rise of law that suggests that there can be no Britain without law – indeed, that Britain, like all nation-state constructs, was law or at least a complex network of interrelated processes and procedures that we might call law. During an age with multiple sources of legal authority in Britain, The History treats law as sovereign unto itself in order to create a narrative of order and stability.1 This article examines the way Geoffrey establishes the primacy of law by using the language-based, utilitarian methodologies of John Austin, who treats law as an expression of a command issued by a sovereign and followed by a polis, and whose jurisprudence enables twenty-first-century readers to understand Geoffrey’s narrative as a response to monarchical succession and emerging common law. The first section of this article briefly explains Austin’s jurisprudence and provides historical context for The History. The second section considers The History in terms of uniform and rational justice in the twelfth century, situating Geoffrey’s jurisprudence alongside that of Ranulf de Glanvill and analyzing the complex relationships between sovereignty, law, polis and nation state.

 The Jurisprudence of John Austin

Austin treats law as an expression of will that something be done or not done, coupled with the power to punish those who do not comply: “A command […] is a signification of desire […] distinguished from other significations of desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he not comply with the desire” (Province 6).  Accordingly, law is a command that carries the power of sanction. Austin, who writes in the nineteenth century, is in many ways different from the twelfth-century Geoffrey. Whereas Geoffrey employs fiction to instruct his contemporaries in the official narrative of incipient nationalism, Austin proclaims that many “of the legal and moral rules which obtain in the most civilized communities, rest upon brute custom, and not upon manly reason” (Province 58). Austin adds that these legal and moral rules “have been taken from preceding generations without examination, and are deeply tinctured with barbarity,” and also that these takings are particularly harmful because the rules “arose in early ages” during “the infancy of the human mind” when people ruled based on “the caprices of fancy” (Province 58). Because The History is more mythology than fact, Austin probably would have accused Geoffrey of perpetuating “obstacles to the diffusion of ethical truth” and of “monstrous or crude productions of childish and imbecile intellect” that nonetheless “have been cherished […] through ages of advancing knowledge” (Province 58). Austin, in short, was skeptical of mythology and claims about absolute law, whereas Geoffrey embraced mythology and implied that law was a constant corrective.

Despite this disjuncture, or perhaps because of it, Austin’s theories provide an illuminating framework in which to consider The History. Austin’s proposition that laws are commands backed with the power to sanction stands in contradistinction to Geoffrey’s suggestion that law emerged out of an ancient precedent and achieved its fullest expression under the great King Arthur. The conception of law as merely language reinforced by the possibility of physical threat undercuts the idea that law is based in first principles discovered by the fathers of civilization. Austin’s proposition – that customary laws carry no threat of punishment and therefore are not laws at all unless a sovereign, who can punish, declares them to be laws – also contradicts Geoffrey’s suggestion that law is embedded in custom and represents a point of authority from which kings may or may not deviate. Finally, Austin’s proposition that “every law which obtains in all societies, is made by sovereign legislators” (Lectures 566), even if such law derives its lexicon from divine inspiration or religious texts, weakens Geoffrey’s suggestion that law is relatively fixed in custom and tradition despite the whims and fancies of a given age. To employ Austin’s jurisprudence is not to privilege Austin’s reading over Geoffrey’s or Geoffrey’s reading over Austin’s but to treat Austin as a lens through which to examine how Geoffrey navigates the legal terrain of his day and negotiates conflicts about law and monarchy that unsettled the harmony of the burgeoning state. Geoffrey uses myth both to validate law and British unity and to reassure the anxious polis of law’s ultimate supremacy over temporary ideological disruptions. He establishes models of behavior for both monarchs and the polis. Read the rest of this entry »

Then There Was Light

In Arts & Letters, Christianity, Conservatism, History, Humanities, King James Bible, Literary Theory & Criticism, Literature, Religion, Western Civilization, Western Philosophy, Writing on December 27, 2011 at 2:02 am

James Banks is a doctoral student studying Renaissance and Restoration English literature at the University of Rochester. He also contributes to the American Interest Online. He has been a Fellow with the Intercollegiate Studies Institute Honors Program; in addition to The Literary Lawyer, he has written for the Intercollegiate Review, First Principles and The Heritage Foundation’s blog The Foundry. A native of Idaho’s panhandle, he lives in upstate New York and serves in the New York Army National Guard.

A politician calls for his country’s ecclesiastical leaders to “stand up and defend” the moral codes of the King James Bible and says that promoting “Christian values” is not a snub to other religions. This is just the kind of thing that America’s “Christianist” watchdogs have been waiting for Michelle Bachmann to say. But she didn’t say it. David Cameron did.

The fact that Cameron can say this in a country where less than 40% of the population believes in God suggests the cultural significance of the King James Version in Great Britain.  (The King James Version, that is, not the Bible itself so much.) This is not wholly surprising. It would be impolite to say anything against the King James Bible on its 400th birthday. Still, this is the first time in recent memory that the King James Version has been glorified in the mainstream media by a popular political figure.

I should note that the King James Bible is—in my non-expert opinion—the best translation available in English. Whereas there have been numerous translations that have, no doubt, captured the literal meaning of the words better, there is none that captures the sublimity more perfectly than the old text of 1611.  The King James Bible is not only in English, it is also very much of English. Translating scriptures into Britannia’s native tongue had been enough to endanger Wycliffe and Tyndale. Nonetheless, by the time that the King James was printed, its heavily Tyndale-influenced Old and New Testaments were typical symbols of British conservative moderation.

Yes, it would be in English, offensive to Roman Catholicism’s preferred Latin Vulgate.  But it would lack the marginal notes of the radical Calvinists: Popery and Puritans! A pox on both your houses! It’s hard to imagine a more appropriate text for the Church of England. Auberon Waugh once wrote that the modern Church of England managed to take such broad positions in public discourse that no one, from Mau Zedong to the pope, could say with any level of certainty that he was not an Anglican.

It is in this historical context of moderation that David Cameron’s comments should be read: The prime minister did not mean that he expected the Church to speak out on moral issues more commonly found in American discourse: abortion, gay marriage, prayer in schools. Rather, he feels that the traditional Anglo paradigm of tolerance and temperateness is threatened by radicals (on the left), nativists (on the right) and youth run wild (in the contact zone in between). He wants the Church to take a more activist role in reasserting the moral virtues which made Britain strong—presumably by saying that looting, pillaging and burning are bad things. Read the rest of this entry »

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