Carlos Santiago Nino against Hayek

In Argentina Friedrich Hayek is often dismissed as a mere defender of privilege. But in the early 90's an academic, Carlos Santiago Nino, still thought it necessary to provide some arguments before rejecting Hayek's ideas. I would like to examine Nino's objections to the notion of spontaneous order.

Carlos Santiago Nino (1943–1993, link to the wikipedia) was an Argentine jurist and philosopher. He was very influential in the 80s, especially when Argentina returned to democracy after the defeat in the Falklands war. He became personal assistant to President Ricardo Alfonsin and coordinator of the Council for the Consolidation of Democracy, a body created by the new government for the purpose of designing institutional reforms.

Nino was what Americans call “a liberal”. He took the ideas of the academics that dominated the American and British universities –among others, John Rawls, Joseph Raz, and Jeremy Waldron– summarized them and made them popular among Argentine academics. Most importantly, in a country in which few people are able to read English, he put everything in Spanish. But he didn't just copy; though it is true that he adopted the theories that were already influential in American and British universities in his time (and remain dominant today), he was a capable thinker himself.

Nino accepted Waldron's idea that the moral justification for property rights must lead to a redistribution of wealth, even to limitations on the kind of goods that people are allowed to possess.¹ He endorsed the idea of collective rights², and made the usual objections against both the efficiency and the morality of free markets.³

From what I have written about Nino's mentors in this blog, it must be clear that I disagree with him. Nevertheless, Nino was much better than the kind of intellectual that dominates Argentina at the beginning of the 21^st century. While Nino provided arguments (flawed in my opinion) academics like Eugenio Zaffaroni use invective and scorn. Nino was under the spell of Oxonian Analytic-Philosophy. Professor Zaffaroni, recently retired from Argentine Federal Supreme Court, is an admirer of Michel Foucault. In fact Nino challenged Zaffaroni's theories in a very instructive debate. No academic seems able to find courage to do it today.

In the 80's, Nino's friend and like-minded liberal Genaro Carrió had a very civilized debate with Sebastián Soler, a “liberal” in the 19^th century sense. At the beginning of the 21's century, Soler is simply dismissed and insulted. The change in the ideas that dominate Argentine universities is made clear by the fact that Nino's main disciple, professor Roberto Gargarella, is a Marxist.⁴

Nino against spontaneous order

In his book Foundations of Constitutional Law (Fundamentos de Derecho Constitucional) Nino defended the notion of “positive” rights –sometimes called economic and social rights– that is, rights to a positive delivery of goods or services, usually from the government. In that context, he charged against Hayek's notion of a spontaneous order. He asserted that it was false and based on a series of confusions. Nino argued (I translate from p. 399) that “the market's order is based on the structure of property which, as it is obvious, is established by statutes deliberately dictated which validate certain acts of possession and transmission of goods -which may have not been recognized by them- and attribute to these acts certain rights and obligations -which may have been given different effects- statutes that establish punishments against those who interfere with those rights. Secondly, these statutes are enforced by courts and the police who are sustained by the product of the obligation to pay taxes. In the third place, the market works through contracts which demand statutes, courts, officials, and taxes to sustain them. In fact, to a greater autonomy of individuals it must correspond a larger State interventionism in the form of contract execution. And as more causes of contractual nullity are recognized, there will be less State interference, in the form of a negative to provide the public service of coercion to enforce those contracts”.

What is spontaneous order?

It is clear to me that Nino failed to understand Hayek's argument. First of all, he failed to see what is spontaneous: it is nothing less that the very activity that drives the life of a nation. Laws establish the formalities of contracts and how they are enforced, but they neither establish the purposes of these contracts nor the kind and quantities of things that people buy and sell. Statutes regulate the rights of inventors and innovators, but they neither create those inventions nor decide which of them will be successful in the market.

The French economist Frederic Bastiat pointed out that we should marvel at the fact that a big city like Paris is provided with all sorts of food, clothing for summer and winter, tools, bolts, cigarettes, and toys, without any authority's decision about how much fruit, flour, shirts, overcoats, pliers, and teddy bears are to be produced. Nobody decides how many trucks are needed to move all these goods. Nevertheless, they arrive in time, each one in proper quantities, and very little is wasted. That is the fundamental spontaneous order. That is the order on which the well-being of people, often their very survival, depends. But we don't marvel at it, it is so essential to our lives and so pervasive that we take it for granted.

Moreover, experience shows that it is precisely when authorities decide that they can impose a better order and take to themselves the task of deciding how much flour and shirts will be made that these goods become scarce and poorly made. Socialists of all parties seldom learn from these experiences; they don't stop and think about the odd fact that life went better without their orders. As they are unable to conceive that order might be spontaneous the only lesson they learn from disaster and hunger is that next time they will appoint better planners and regulators.

In Italy, Fascists thought that they had found a better way than marxists and socialists: production would be regulated by boards of employers and employees. They created corporations where each group in society (or rather, the groups in which they thought society was divided) had a place reserved, no matter how many votes they would have had in a regular election. That system didn't work either. Nevertheless, in Argentina a large number of people still believe that order would be better established if only the representatives of each relevant “sector” of society agreed to “sat down to a table” (that is the set phrase), have a talk, arrange their differences, and issue a plan that would secure everyone's well-being.

Plan by a single authority is bad; plan by committee is worse. What must be understood is that the problem is not how or by whom these decisions are made; the problem is that such order won't be spontaneous.

Furthermore, we must be aware that “spontaneous” does not mean “thoughtless”. There is much more thought and care involved in spontaneous order than in any plan or regulation. Except that they are the thoughts and goals of millions of people who interact and adapt to each other without anyone bossing them about and telling what they have to do.

Hayek wrote in his book Law, Legislation, and Liberty: “The possibility of men living together in peace and to their mutual advantage without having to agree on common concrete aims, and bound only by abstract rules of conduct, was perhaps the greatest discovery mankind ever made” (vol. 2, p. 136). That is the fundamental spontaneous order, the one that is defined by the fact that it requires no agreement on collective goals. Marxists, Nazis, corporatists, nationalists, and socialists of various kinds, thought (and still think today) that such common goals are indispensable. They can't conceive an order without them. So fundamental are they for these groups, their leaders, and intellectuals, that in default of agreement they are prepared to force people to adhere to their goals. That they describe them as national purposes, race world-views, or class interests, is –according to Hayek– secondary to the fact that all of these doctrines reject an order that is spontaneous and has not to be directed.

It is sad that well educated people and even academics like Nino fail to see that they get most of the goods that made life enjoyable –even possible– by an order that is spontaneous. The essential order to which Bastiat, Menger, and Hayek pointed out is not the system of laws, which of course they acknowledged, but the order that is established when millions of individual plans –each one different!– adapt to each other.

The legal system

But even laws and codes have much that is spontaneous. Nobody invented the notion of a contract, or of credit, or of paid services. Today we have laws about such things, but the practice, and the very concepts, originated long before those laws. Some people started exchanging food, firewood, or tools, and many others realized that they could improve their well-being in that way.

They started using some forms, some words, ceremonies, and written documents for their agreements. Some thought that it would be a good idea to produce things they didn't need, just in order to exchange them for goods they needed. That is the beginning of specialization and the division of labor. Many of them found that there are certain goods that are readily accepted by most people, goods that are easy to transport, and don't get spoiled by the passing of time. Whenever they were uncertain about their future needs, or whenever they couldn't find the products they needed, they chose to exchange their products for those goods, as an intermediate step. These were, with various degrees of success, chunks of salt, hides, spices, gold, silver, and many other things. That is, according to the Austrian economist Carl Menger, the origin of money. In time, laws established coins and much later, paper money. But contracts, wills, marriage, property, and money started spontaneously, as parts of an order that laws secured and modified but seldom (if ever) they created.

Socialists of all parties prise themselves for their realism, nevertheless they seem to assume that nobody exchanged berries for firewood, nobody left his cows to his children, before some authority called people from the villages and adjacent farms and told them that from then on they will have an institution called “contract” and another called “will”.

Those who write statutes and codes find these things already working; they settle some things, modify others, but seldom invent a new practice from scratch. Even in the introduction of the French Civil Code, the jurist Portalis wrote that “codes are made by time, but to speak more properly, one does not make them”.

1 See his Fundamentos de Derecho Constitucional (Foundations of Constitutional Law) p. 364.

2 Op. cit. p. 371.

3 Op. cit. p. 372-373.

4 A translator and follower of British Marxist Gerald Cohen.

Are Rawls and Hayek compatible?

No way. That would be the answer to such question at first glance –and as you will see, that will be my final answer too. Nevertheless, Jinzhou Ye, a kind reader of my blog, has written to me and rightly pointed out that Hayek seems to have thought that his ideas weren’t so radically different from Rawls’s.

In the preface to the second volume of Law, Legislation and Liberty Hayek wrote that his differences with Rawls

 “seemed more verbal than substantial. Though the first impression of readers may be different, Rawls’s statement which I quote later in this volume (p. 100) seems to me to show that we agree on what is to me the essential point. Indeed, as I indicate in a note to that passage, it appears to me that Rawls has been widely misunderstood on this central issue”

Then in p. 100 Hayek writes that the problem of justice is relevant not only as the basis of the rules that judges apply but also for the “deliberate design of political institutions, the problem to which Professor John Rawls has recently devoted an important book. The fact which I regret and regard as confusing is merely that in this connection he employs the term ‘social justice’. But I have no basic quarrel with an author who, before he proceeds to that problem, acknowledges that the task of selecting specific systems or distributions of desired things as just must be ‘ abandoned as mistaken in principle, and it is, in any case, not capable of a definite answer. Rather, the principles of justice define the crucial constraints which institutions and joint activities must satisfy if persons engaging in them are to have no complaints against them. If these constraints are satisfied, the resulting distribution, whatever it is, may be accepted as just (or at least not unjust)’. This is more or less what I have been trying to argue in this chapter.”[1]

Though I admire him greatly, I think that here Hayek deluded himself. He wanted to hear a faint echo of his own ideas in Rawls’ book, and he overlooked the crucial differences.

An apparent agreement

Hayek wrote that the notion of social justice was a mirage, and a dangerous one. A few paragraphs before that quoted above, he wrote that it tends to destroy genuine moral feelings. It comes “into constant conflict with some of the basic principles on which any community of free men must rest”. Hayek defended the classic system in which rules have no other purpose than to allow each one to follow his own road without colliding with others. Such rules are –Hayek said– like road signs that tell people how to reach their own destination but without commanding any collective destiny. I have described that system in more detail in a previous article.

Of course, laws that comply with that requirement don’t establish who owns what. Distribution comes from the play of the market, that is, from the judicious, injudicious, lucky, or unlucky decisions of millions of people. The price mechanism makes it possible for them to collaborate without a general agreement about collective purposes. The men who make bolts do not have to agree –or have any idea– about the usefulness of the simple door, or of the complex machine in which bolts might be used. They agree with the maker of the door and the machine about the price. Nothing more is needed, and to require agreements about further and general goals is not only inefficient, but immoral. A system requiring more agreement than is possible, moral, and efficient can only attempt to work under the command of a bigger, more powerful, and ultimately uncontrollable government.

Rawls’s system might look similar at first glance. So it is when one reads the paragraph quoted by Hayek. Rawls too relies on general principles and says that whatever distribution of goods that results from a system that complies with those principles must be considered just. The difference, the enormous difference, is that Rawls’s system includes equalization by redistribution as a fundamental “principle”. In other words, Rawls made a goal into a principle. After that, one might think that his system relies only on general rules, not on collective goals. Wrong: what happens is that a collective goal about the distribution of goods has been adopted as if it were a rule like any other. But it is one of Hayek’s fundamental insights that rules and goals are different. And if one uses the name of “rule” for collective goals, that difference does not disappear. It is blurred only.

Oceans of discretion

One must remember that Rawls does not include property among the fundamental rights protected by the first principle of his community. Property is regulated by the difference principle which states that differences in wealth are allowed only if they improve the situation of the least fortunate members of the community (least favoured by nature, luck, or anything else). For instance, medical researchers might be allowed  (mind the passive voice) to buy and own expensive equipment, and perhaps be permitted to retain a considerable part of the profits that comes from their discoveries, if it is considered that such level of inequality works for the benefit of the least fortunate. The passive voice should alert us that some government official or authority is implied. The passive voice allows one to overlook the agent that performs the action, therefore its frequent use in bad political philosophy.

The difference principle is made both more stringent and more uncertain by two further requirements. First, the improvement of the least fortunate must be the maximum possible. That means that it is not enough to say of an inequality of distribution that it improves the situation of the least fortunate in some degree, if another distribution would make it even better.[2] Secondly, Rawls tells us that what must be improved are the “expectations” of the least fortunate, which some personal traits may make different from actual improvement of their wealth or situation. Government must care about classes or categories, not about individuals.

Now the two systems –Hayek’s and Rawls’s– look absolutely different –as indeed they really are. We must also be aware that Rawls’s system requires momentous decisions “on the merits”, a kind of decision that proper rules (in Hayek’s sense) must not put in the hands of governments. For instance, on what basis do authorities select the least favoured group? There are none, as Rawls openly admits “it seems impossible to avoid a certain arbitrariness in actually identifying the least favoured group”[3]. As to the reasons that would justify the taxes that will be used to nip off the inequalities that are not justified (in the view of the rulers) Rawls tells us with commendable frankness that “naturally, where this limit lies is a mater of political judgement guided by theory, good sense, and plain hunch, at least within a wide range”.[4] As another tool for equalization Rawls mentions “redefinition of property rights”.

Same conclusions reached from different paths?

Rawls said that his system was compatible both with socialism and with free markets –free markets with a considerable degree of intervention. In contrast, one would say that Hayek’s ideas aren’t compatible with socialism, and that they run against strong intervention.

Moreover, while Rawls rejected that property were to be considered a fundamental right, one would say that Hayek adhered to Edmund Burke’s definition: we all have equal rights, but not to the same things. And among such rights Burke (and Hayek) surely included property. Rights can be equal only if they are unrelated to the condition of the person or the amount of wealth. Rawls’s system pursues a redistribution of property: that is why property cannot be a fundamental right in it.

All that said about the differences, there is an element in Rawls’s system that makes its implications very vague (even more vague than they already are without it). And because of the haziness that this element adds, because of the fog that it suspends on the oceans of vagueness already opened by Rawls, one might say that his system could well provide a justification for capitalism. The trouble is that it could well justify almost anything else. Let’s see how Rawls introduces this new element.

Rawls tells us that there must be justice between generations too. Some amount of saving, for instance, is necessary for the well being of people not yet born. This new element must also be balanced (again mind the passive voice). Rawls uses it to show that perhaps considerable differences of wealth might be admitted as fair.[5] For, while they might not seem justified according to Rawlsian principles when applied to people living today, it might be argued that such inequalities are necessary for the well being of people in some future generation.

Rawls says that his difference principle cannot be applied between generations because economic benefits go only in one direction, that is, to the future.[6] Just for the record I would say that debts for loans taken today are often passed to future generations, and that will affect distribution in the future. But, leaving that aside, now Rawls has a new element that may justify the wide differences of wealth that are to be found in any place where the means of production are possessed by individuals or private companies. In this way, one could say that Rawls’s notion of justice may be presented as a justification for capitalism and free markets.

Nevertheless, it would be difficult to find a shakier basis. With its exclusion of property as a fundamental right, with equalization as a goal-principle, with its need of a myriad of momentous collective decisions for which it recommends a good “hunch”, it is the worst defence of freedom one may devise.

Hayek described and defended clear principles that build a stronghold for liberty. It is solid because it is rooted in history. In The Road to Serfdom he dealt with, among others, the British and German experiences. Rawls built a castle in the air with no reference to history. Anyone who plans to use that castle for the defence of liberty must be aware that it offers all its gates open for an easy access of attackers. Its basis could be used for as well as against freedom and personal independence. The question about the needs of future generations as against those of the present one will be argued, the selection of the least fortunate group and the proper transfer of wealth will give rise to many different hunches. The redefinition of property rights will provide room for ingenious but controversial schemes. But don’t you worry, in the end, some authority will settle everything down.

---

[1] Law, legislation and liberty, The University of Chicago Press.

[2] “In other words, however much a scheme improves the expectations of the less fortunate relative to full equality, it cannot be just if a more egalitarian scheme could sustainably do better for the less fortunate” Philippe van Parijs: Difference Principles, in The Cambridge Companion to Rawls. Cambridge University Press 2002.

[3] A Theory of Justice. Belknap Harvard University Press, Revised Edition p. 84

[4] A Theory of Justice p. 246.

[5] A Theory of Justice p. 252.

[6] A Theory of Justice p. 254.

Misreading Friedrich Hayek

It is unfortunate that law scholars usually describe Hayek’s ideas about the rule of law in a way in which he ends up saying the opposite of what he actually said. 

Hayek is usually classified among the few supporters of the formal, or “thin”, notion of the rule of law, as opposed to a “thick” notion that incorporates –according to the taste of the writer– from traditional rights, to economic rights, and even State intervention in the economy. Of course, Hayek himself never considered the choice between a thin and a thick notion –and he did very well in avoiding such misleading dichotomy, coined many years after he wrote his famous books.

In a previous article I have said that the criticism that Joseph Raz directed in the seventies against Friedrich Hayek was based on a fundamental misunderstanding of Hayek’s ideas. The mistake was then enlarged and compounded by others who followed his lead. In his often cited article The Rule of Law and its Virtue (included in his book The Authority of Law), Raz established what came to be the accepted understanding of Hayek’s position. Today, almost every academic article on the subject starts with the classification between thin and thick, puts Hayek and Raz on the thin side, and then goes on to more specific issues. That is correct as concerns Raz, but absolutely wrong when it refers to Hayek.

The origin of the mistake must be traced back to Raz’s article cited above. He said that he agreed with Hayek’s formal understanding of the notion of the rule of law (what today is called “thin” understanding) but that he disagreed on the value that Hayek saw in it. And that is wrong: Raz’s view is not the same as Hayek’s, not only concerning the value of the rule of law, but also concerning the concept. And the difference is not of shades of meaning, but fundamental.

Unfortunately, from then on we see that Hayek is always paired with Raz (who was in fact criticizing him), and not surprisingly, most law scholars find that Raz was right in thinking that Hayek has exaggerated the value of the concept that –as we are told- he shares with his critic. The thin notion is very deficient.

Let’s see what the thin notion is. I will follow professor Brian Tamanaha’s explanation because of his exhaustive treatment of the issue and because he provides an example of the way in which most modern scholars –following Raz’s lead- understand Hayek’s ideas (or rather, the way they misunderstand them).

In his book The Rule of Law, Tamanaha first repeats Raz’s description of Hayek's ideas (see my three articles on Raz’s criticism of Hayek). Assuming that description is accurate, he tells us that the formal notion defended by Hayek and Raz “imposes only procedural requirements, only restrictions about the form that law must take” (94). He adds that “The fact that this version of the rule of law has no content requirements renders it open to a range of ends”. Tamanaha cites opinions of those who see an advantage in that lack of content because it means that it is politically neutral and would be acceptable to people from the right, left, and center. On the other hand, as the formal rule of law is morally neutral it provides no grounds for rejecting the consistent application of pernicious laws like those that legalized slavery. In fact, Tamanaha says, wily tyrants will find in it support for their position (95).

He asserts that “The emptiness of formal legality, to make a broader point, runs contrary to the long tradition of the rule of law, the historical inspiration of which has been the restraint of tyranny by the sovereign. Such restraint went beyond the idea that the government must enact and abide by laws that take on the proper form of rules” (96)

One must notice that all that would mean that Hayek, who claimed to defend the original understanding of the rule of law, who cited and draw support from a long tradition of thinkers, failed to see that he “run contrary” to that tradition. Either Hayek did not understand the tradition, or many of those who read him have misrepresented his ideas.

As to the value of the formal or thin notion, Tamanaha says that “it is correct to conclude that formal legality has more in common with the idea of rule by law than with the historical rule of law tradition” (96). Again, if we say that Hayek adhered to a formal view in which the law is merely the instrument used by good, bad, or tyrannical governments to impose their policies (whatever they might be), then we must assume that Hayek adhered to a view that he himself considered absurd.

We must remember that in The Road to Serfdom he asked who would say that the rule of law prevails in Nazi Germany, only because Hitler obtained his powers according to the constitution then in vigor. In a preface that Hayek added years later, he said that he had meant it as a rhetorical question, and that he found it surprising that a famous jurist (Hans Kelsen) and a British politician (Harold Laski) held precisely that view. What would have been Hayek’s surprise if he had known that many years later, law scholars would ascribe that absurd idea to him.

Tamanaha then turns to the question of what the formal, or thin (or empty, as he aptly describes it) notion of the rule of law rules out. And he finds that it is very little. Raz stated some formal requirements about the rules themselves like generality and clarity, but most of his requisites relate to court procedure. Of course, that would allow ruthless dictatorships and discrimination. Following Raz’s thin notion, professor Tamanaha tells us that this understanding (remember it is also presented as being Hayek’s notion) is compatible with socialism: “Social welfare systems, however, as well as socialist ones, also rely upon rules to function. When rules exist and are honored by the legal system formal legality operates. The essential question is: in what areas, or with respect to what activities, should legal rules govern? Formal legality has nothing to say about this question” (97).

However, Hayek seems to have cherished the idea that, when he revived the notion of the rule of law, he was saying something against socialism. He even thought and wrote that socialism was the Road to Serfdom, not to the rule of law. He seems to have imagined that there was some contradiction between them. Again, either his intellect was not as good as many people think, or his notion of the rule of law has been somewhat misunderstood by law scholars.

But let’s examine more closely why Tamanaha asserts that under the formal notion of the rule of law, there is no objection to the welfare state. Why? Because these are new areas of government intervention, so there were no previous laws about it. There is more law, not less law and that should make Hayek happy. Tamanaha reasons thus: “Hayek cannot resort to formal legality to complain about this development, as formal legality only addresses the form that law should take, not the proportion of circumstances of its application. Outside the administrative context, in areas of private law there has been an increase in the use of open-ended standards, like fairness and reasonableness, and an increase orientation of judges to achieving justice in individual cases. Yet these changes have not altered the overall rule-bound character of the legal system; nor have they led to any significant reduction in the degree of predictability, nor have they led to any evident adverse consequence on commercial transactions. If anything, modern complaints are about too much law –the vast bulk of which satisfies formal legality- not too little” (98). Tamanaha seems to declare that  Hayek could have complained only if there have been fewer laws; but the more the merrier.

Tamanaha reaffirms his (mis)understanding of Hayek’s basic ideas in his book Law as a Means to an End. Threat to the Rule of Law. After justly criticizing the modern notion of the law as a mere instrument for whatever ends, Tamanaha goes on to classify Hayek as a supporter of that pernicious view. He transcribes a tiny portion of Hayek’s characterization of the rule of law (exactly the same cited by Raz) and writes: “The formal rule of law is complementary to an instrumental view of law when considered in connection with legislative declarations of law. Both the formal rule of law and an instrumental approach hold that law is an empty vessel that can consist of any content whatsoever to serve any end desired. Lon Fuller, as indicated earlier, remarked that the formal rule of law is ‘indifferent toward the substantive aims of the law and is ready to serve a variety of such aims with equal efficiency’. That is precisely how the instrumental approach portrays law: open with respect to content and ends” (227-228).

The fundamental mistake

Hayek said that according to the ideal of the rule of law, laws are indifferent to goals: they are like signposts on the road; they do not tell you where you have to go. Joseph Raz, said that he shared with Hayek the view that the ideal of the rule of law itself is indifferent about the goals that laws might have. The use of the word “indifferent” hides the fact that these are two opposite views.
         That is the mistake in a few words, now let's examine it more closely. As said, in describing the "thin" notion of the rule of law (supposedly Hayek's notion) I have used professor Tamanaha’s books because they are representative of today’s understanding among law scholars concerning Hayek’s contribution to the study of the rule of law. I haven’t chosen his opinions for being particularly shocking or especially misleading. On the contrary, I could have cited more extreme examples. Tamanaha’s books and articles on the subject show learning, are fully guarded by caveats and disclaimers, and his deficient representation of Hayek’s ideas is no more and no less than standard academic thought. That is in fact what makes them more worrying.

Just on the Social Science Research Network I could have cited more extreme examples: scholars who suggest that strong state intervention in the economy is compatible with the rule of law, others who claim that state allocation and redistribution of resources is a requirement of the rule of law, and yet others who claim that in my country, Argentina, a president who fired the judges who said it was against the Constitution to take dollars from private bank accounts and forcibly exchange them for devaluated pesos (Argentine Constitution declares that property is “inviolable”), a president who replaced these judges with others more pliable to his plans, with the new judges shortly after declaring that taking the dollars was perfectly in accordance with the Constitution, yes, that president took a right step on the path that leads to the rule of law.

Certainly, professor Tamanaha also indulges in some curious attacks against classic liberalism. He warns us that around 1948, just when the notion of the rule of law started to receive much attention (?) “Hayek astutely, though by all indications with true conviction, hitched his liberalism to the rising star of the rule of law” (The Dark side of the Relationship between the Rule of Law and Liberalism, 24). Hayek hitched the two things together? This is like telling us that a man writing about the history of theatre has astutely hitched the name of William Shakespeare to a play called King Lear, but that as far as we know, the poor man made the connection in good faith. 
          However, even that comparison involves an understatement: for you can understand King Lear without knowing it was written by Shakespeare. But you will have a very deficient understanding of the ideal of the rule of law if you fail to make the connection with classic liberalism.
           In the same article, professor Tamanaha tells us that the rule of law is used by international aid agencies as the "front-man"  for the liberal package and against democratically elected governments in non-Western nations. Nevertheless, also these statements seem to be representative of the convictions that prevail among law scholars.

But I am not concerned with details at this moment. I would like to point out what I think is the fundamental mistake in the usual (mis)representation of Hayek’s thought. What Hayek truly wrote was that under the ideal of the rule of law, laws have no altruistic aim to impose on people, no worldview, and no goal of favoring one man or one class. That was precisely what socialists had for decades criticized as being bourgeois law. In their view, it lacked substantial justice. It failed to treat poor people differently. It assured to anyone the right to apply for a job, but not the job. It guaranteed to anyone the right to pursue happiness, not happiness. In Anatole France’s celebrated phrase “the law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread”. That was in their view not equality but a sham. Socialists saw no value in the rule of law because, in Harold Laski’s words, without economic security, liberty is not worth having.

Hayek turned the tables on the socialists. He argued for the moral as well as the economic value of a law that imposes no social goal on people. That is the essential message of The Road to Serfdom. For whatever reasons, Raz failed to understand it. While Hayek has written that formal law imposes no goal, Raz assumed that Hayek argued for a law that could be used to impose any goal. While Hayek wrote that the ideal of the rule of law means that law is indifferent concerning the goals pursued by individuals, Raz assumed that it means that the ideal of the rule of law is indifferent concerning the goals that might be imposed by governments on individuals.

Skipping Hayek’s arguments entirely, Raz then repeated the original objection of the socialists: what? An ideal that says nothing about the goals of the law? How can it do any positive good? Of course, there was a difference in style: Raz used the highly abstract language of analytic philosophy and not the colorful descriptions of the socialists.

I must say that the socialists had a better insight than Raz concerning the meaning of the rule of law. They were wrong about its value, but they understood its meaning. They never charged the rule of law for being an instrument that could be used for whatever purpose as long as it was stated in general and clear terms so as to guide people to that end. Their objection was that the rule of law required laws to be indifferent to ends, and they saw no good in it. To that, Raz added: then it is an instrument that can be used for very bad purposes, for discrimination, etc. Socialist thinkers must have seen that this second charge required a misunderstanding of the very meaning of the ideal of the rule of law.

In view of the abundance of confusions, I have tried in the previous paragraphs to show the contrast between Raz and Hayek in the clearest way. It might be argued that I have used a broad brush. However, though I have omitted details, the contrast is there and is fundamental. As with every academic work, one can find disclaimers and nuanced remarks in Raz’s article that could be used to soften the contrast. Nevertheless, I do not think that they can be used to deny it.

Hayek said that according to the ideal of the rule of law, laws are like signposts on the road: they do not tell people where to go. They have no preference about that; they are indifferent concerning directions. Raz assumed that indifference meant that law could be used to impose any direction. If it has no goal, then it could have any goal, so long as it is stated in general terms. That was turning Hayek’s explanation on its head.

Hayek wrote in The Road to Serfdom: “The distinction we just used between formal law or justice and substantive rules is very important and at the same time most difficult to draw precisely in practice. Yet the general principle involved is simple enough. The difference between the two kinds of rules is the same as that between laying down a Rule of the Road, as in the Highway Code, and ordering people where to go; or, better still, between providing signposts and commanding people which road to take” (50^th edition, 82) . Raz, and others who followed his lead, understood that explanation as if it meant that the ideal of the rule of law had nothing to say about the direction authorities could give to the content of laws. After that fatal mistake, law scholars can assuredly write that Hayek could not resort to the ideal of formal laws to complain about the barrage of regulations of the welfare state. Since that ideal refers only to the form of the law, to procedure and not to content, then it looks right to say, as does professor Tamanaha, that such formal ideal is very deficient, and very close to government by laws.

Neutralizing Friedrich Hayek

Hayek’s insight into the concept and value of the rule of law is a precious gift. It sheds light on a subject where confusions have led, and still lead today, to poverty, injustice, and often to death. Hayek wrote in Law, Legislation, and Liberty: The possibility of men living together in peace and to their mutual advantage without having to agree on common concrete aims, and bound only by abstract rules of conduct, was perhaps the greatest discovery mankind ever made” (vol. 2, 136). He never meant to say that the precious discovery was that legislators can impose whatever goals they want, as long as they state them in general terms, and provided there are unbiased trials based on biased laws, with a right to plead and be heard before a sentence is pronounced.

We are not discussing here whether there can be entities devoid of form and accidents, or whether it is in the nature of causes that they must act through a medium. People do not die because of mistakes made on such questions. It is not the same with the concept of the rule of law. Unfortunately, the understanding of Hayek’s contribution that prevails among law scholars (though perhaps not among economists) misleads people about its meaning.

In turn, the confusion about the concept produces a second negative consequence: it gives plausibility to a rejoinder that simply skips Hayek’s arguments against the traditional objections raised by collectivist thinkers. Socialists, Communists, Fascists, and Nazis charged bourgeois law for being indifferent to its consequences, for a lack of moral content and direction. Because of the confusion about Hayek’s arguments, scholars writing in the XXI century repeat the same objections, though in a style better adjusted to prevalent academic taste.

But there is yet another, even worse consequence of the confusion. It also gives plausibility to a “solution” for the “shortcomings” of the rule of law that simply destroys its base. Let’s see how Raz did it. It is a recipe that others have adopted with small variations but with the same unsavory consequence. After proving to his own satisfaction that the idea that he supposedly shared with Hayek has only a negative value, after comparing it with a sharp knife, after denying any moral value to it, Raz concluded that we should not simply accept the ideal of the rule of law on its face value. It is not a universal good. We have to balance it against other social goals we want to pursue. We must not, as Raz says in concluding his article, sacrifice them on the altar of the rule of law.

So we must balance goals and values. And we must evaluate them “on their merits”, which means: considering the circumstances as they present themselves in each case. We cannot state in advance that elementary education is in all circumstances more valuable than higher education, and cannot fix once and for all that environmental considerations must prevail over the goal of keeping jobs. For a detailed and superb explanation of what decisions “on the merit” entail, I recommend chapter VI of The Road to Serfdom and chapter XVIII of vol. 3 of Law, Legislation and Liberty.

Certainly, when one reads academic contributions on the subject, one should always stop after each “we” and be certain as to whom it refers. When one reads that “we must balance”, that “we must decide between competing values”, one must understand that on this our planet, it means that some authority will decide it. And, since it is a State’s authority, one must realize that the decision will be imposed with the full force of the State.

Now, the ideal of the rule of law means precisely that authorities must not do that. The solution suggested by Raz and the large number of scholars that follow him on this subject, is not a way out of a problem, it is a way out of the ideal of the rule of law. It cuts it from its base. It places “judgment on its merits” as the arbiter of whether the law should rule or public officials should decide.

Of course, neither Hayek nor any other defender of the ideal of the rule of law has argued that discretion must or can disappear altogether. What they have said is that progress means a reduction of discretion, that people will do well in distrusting and distasting discretion, and that most of the “competing goals” that do-gooders want to see imposed by governments can be better pursued by remaining faithful to the ideal of the rule of law. Friedrich Hayek did not discover that ideal, he only reminded us about it. It was not an ideal shared only by Englishmen; W. von Humboldt had written about it already at the end of the XVIII century, and in Prussia no less.

But Hayek’s contribution was fundamental. He did a magnificent work in explaining the concept and in relating it to the values on which Western civilization was built, the values for which that civilization was once admired by the rest of the world. Moreover, Hayek wrote at a time when most people had been converted to the notion that the rule of law was a matter of the past; only a stumbling block on the way to progress. Today, more than half a century after The Road to Serfdom was written, we must recover again that ideal, not from oblivion, but from confusion.

More flawed arguments against the rule of law

Friederich Hayek’s book The Road to Serfdom renewed the interest in the notion of the rule of law. However, not many of those who follow Hayek’s ideas seem to realize that Joseph Raz, a renowned law philosopher teaching at Oxford, published in 1977 a critique of what in his view was the exaggerated value that Hayek saw in the rule of law. He called it a fallacy.

In academic circles and in philosophical reviews Raz’s objections to Hayek are the starting point of most studies that deal with the concept of the rule of law. On his part, it seems that Hayek was never aware of the criticism, and the same applies to those who follow his ideas. Today, each group writes for its public.

I have tried to examine Raz’s objections to Hayek. This is the third article on the issue.

Raz concludes his criticism of Hayek’s ideas by saying that we should not sacrifice social goals on the altar of the rule of law (The Rule of Law and its Virtue p. 229). However, he never tells us what are the social goals he has in mind and why the rule of law might be an obstacle to them. Andrei Marmor, also a law philosopher, agrees with Raz and reminds us that, as with delicious jam, we may have too much of a good thing (The Rule of Law and its Limits).

I think that we all agree that deviations from the rule of law are not to be lightly considered. Especially so if we bear in mind that the very idea that the law rules, and not men, requires that we do not adhere to it only when we find it convenient.

Moreover, Raz compares the rule of law with a sharp knife. In his view, it is a tool that may be useful for different purposes. But then, why is that he argues against that multi-purpose tool saying that we should not sacrifice “social goals” to it? What is in the goals Raz has in mind that make the tool unsuitable?

One would have expected Raz and those who follows his tracks would have been more explicit about the goals they want to see pursued by means of deviations from the rule of law. What deviations, decided by whom, in what areas, for what goals?

We may have an inkling of the kind of goals that Raz does not like to see injured by too much respect for the rule of law by noticing that he refers to “social” goals. We may get another clue if we consider what are the goals that require that governments do not tie themselves to rules and instead decide each issue “on the merits”, according to circumstances that cannot be evaluated beforehand.

Of course Hayek has explained in detail what these goals are, and why they require that we abandon the ideal of the rule of law. I have summed up Hayek’s explanation in the first article of this series. Economic planning cannot be even attempted if one is not prepared to leave fundamental decisions to bureaucrats that will evaluate them –as Hayek put it- “on the merits”. That means, according to the situation as it looks to them, but not according to any rule. Unless, of course, we play with words and call the statutes that command them to pursue some goals, “rules”. Hayek has explained why stating a goal, say “economic inequality must be reduced”, is different from ruling that “contracts should be signed by the parties”.

The problem is not solved by putting judges instead of bureaucrats in charge of making decisions “on the merit”. That changes only the man who rules, but does not comply with the rule of law.

The social goals that require deviations from the rule of law and prompted Raz to criticize Hayek’s “fallacy” must have been economic improvements sought through planning, income equalization, and the like. We must remember that Raz wrote in 1977, at a time when many people still took central planning very seriously.

If Raz had tried a direct attack, he should have argued that these other social goals that clash with the rule of law are indeed at our reach and not a mirage, and that they are of such value that they compensate us for what we would lose by deviating from the rule of law. He did neither of that.

In his article, Raz follows an indirect path. He does not dwell much on what we might gain by pursuing his “social goals”; instead, he tries to show that we may lose little; that what we put in the balance is not as valuable as Hayek makes us believe.

As we have seen, Raz asserts that the value of the rule of law is merely negative (see first article), and so he implies –without asserting it or proving it- that the loss might not be so big. We may lose some of the sharpness of the knife, but that concerns only a tool.

The use of imaginary situations

Modern philosophy of morals is based to a large extent on counterfactuals, that is imaginary situations that we know are different from what is actually true. Paradoxically, the most useful of these counterfactuals seem to be those that are not merely false, but impossible. John Rawls ask us to imagine people who know nothing about their property, their achievements, and their faults but must decide who owns what; Ronald Dworkin ask us to imagine people who contract insurance against the risks of life before they are born; and I have heard of other thinkers who imagine legislators that are separated form their voters by a wall that prevents any communication.

The key trick in using that method is this: one does not store our well meditated conclusions for the time when these situations present themselves (if that ever happens). No, we say that our conclusions apply to the real world, where people know what belongs to them, where ghosts cannot insure themselves before acquiring human features, and where legislators can –if they want- talk with voters.

To convince us that Hayek has overvalued the rule of law, Raz writes: “A non-democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law” (p. 211).

Certainly, in principle all that is possible. But “in principle” means here: if we set aside all that we know about dictatorial regimes, and if we refrain from searching for real examples, then we can say that we have shown that there is a fallacy in Hayek’s praise of the rule of law. For at least in principle things could be as they are not.

Raz's argument has been repeated in many books. Back on this world of ours, we know that disrespect for the rule of law is the first fault of tyrannies, and the one that leads to all their other calamities. But apart from that, we must remember that Hayek’s book was not dedicated to the problems of backward, non-Western, tyrannies. He was concerned with the pressing fact that many Western democracies were abandoning the ideal of the rule of law.

Neither was Raz writing about the pros and cons of the rule of law for non-Western tyrannies. He was teaching and writing in England, he was answering to a book that touched almost only Western experiences, a book that was first meant –as Hayek said in its prolog-  to an English audience, and the “social” goals that demanded departures from the rule of law, were goals recommended by many English political thinkers, and of course –at that time- by the Labour party. So to argue by referring to an unidentified non-Western regimen is rather circuitous.

But even if we accept for a moment that unjustified change of context, we must realize that –for instance- women suffer in backward countries because they are in a way outside the law, they are ruled by the whim of their husbands, their parents, and even their brothers. Slaves were in a similar situation. None of them can sue their masters. Of course we can say that the law of the land is that women must be ruled by men, or slaves by their owners. But then they are not ruled by laws in the way we understand the rule of law. They are ruled by men authorized by laws to do so.

Moreover, in what way would the situation of persecuted minorities improve if those who oppress them refuse to follow certain and established rules? First of all, oppressors do exactly that, they rarely limit themselves by rules; and much of their power comes from the fact that their victims cannot know in advance where the next blow will come from. It is true that discretionary powers may sometimes allow victims to buy some relief from corrupt officials. But legal restrictions also offer loopholes that may be used to palliate their oppression. However, all that refers to relief and palliation, not to firm rights.

The surest way of improving the situation of oppressed women and persecuted minorities is to subject them to the same rules that are applied to all others. The tried method involves, among other things, allowing them to sue their oppressors in the same independent courts that are open to everyone else; allowing them to acquire property by their work, as any other person.

As to “extensive poverty”, Hayek has given detailed reasons that show why failure to uphold the rule of law is an obstacle to progress. Experience has confirmed him. Raz examined neither reasons nor experience.

The case of the Apartheid

In an attempt to descend to reality, Andrei Marmor mentions the Apartheid regime in South Africa and says that it was “quite legalistic”. After Hayek, it should not be necessary to say that respect for the rule of law and “legalistic” are not the same.

The Apartheid was a policy, and its goals demanded many deviations from the laws that had ruled South Africa before the elections of 1948. That change was pursued by politicians with the aim (the “moral” purpose, see first article) of favoring the white minority because it constituted the majority of voters. As it is shown in a detailed study of the beginning and the evolution of the Apartheid (W.H. Hutt: The Economics of the Color Bar), the resulting regime presented the typical features of those where a majority of voters use law to oppress a minority (with the difference that in South Africa the majority of voters was a minority among the whole population).

To use Hayek’s image, the statutes enacted after 1948 were not signposts on the road indifferent as to where drivers wanted to go: they had a definite direction. Only the goal of favoring whites was stable, not the rules. Black workers were excluded from certain areas, from certain jobs, and sometimes from certain companies, according to the needs and preferences of public officials. People of Indian origin were removed from the shops they had owned -again, so that they did not compete with white shopkeepers.

Unless we are prepared to say –as did many distinguished law scholars- that Hitler respected the rule of law because all his exactions and murders were authorized by laws, we cannot say the same of the Apartheid.

To argue against the value of the rule of law by referring to the fate of persecuted people under tyrannical regimes is like lecturing about the dangers of drinking too much water and presenting as illustration the case of those who die from lack of it. Surely, those who suffer from thirst or from injustice will not be among those who dispute the value of water, or of the rule of law.

Rule of law: neither thin nor thick

This is the second article on the criticism that Joseph Raz directed against F. A. Hayek. Link to the 1st article

A false dilemma

     One of the most common ways in which thinkers mislead other people (often without meaning to) consists in presenting false choices between alternatives. When both alternatives are wrong, confusion is guaranteed.

     In discussing the notion of the rule of law, law professors have managed to create one of those misleading dilemmas. They tell us that we have to choose between a thin and a fat (or thick) concept of the rule of law. I think that both gravely distort the concept.

     Professor Joseph Raz, a law scholar at Oxford, is the champion of the thin notion. Most of his colleagues defend the fat version –among these, the late Tom Bingham, Lord Chief Justice of Britain. One kills the rule of law by starvation, the other by overfeeding.

     To sum up the choices that I will analyze, one can say that Raz’s thin notion reduces the rule of law to some formal properties, most of them related to trials and the work of judges, but without much content. So for instance, Raz states that the rule of law means that laws and statutes are clear -not vague-, that judges are independent, that judges have review powers over parliamentary legislation, that courts should be easily accessible, and some other principles. But apart from that, the laws themselves may have any content. Raz includes “the principles of natural justice” such as fair hearing and absence of bias as essential for the correct application of the law (of whatever content). As said, his principles refer mostly to procedure and the work of judges.

     The thick notion requires much more. Its advocates enumerate rights that laws must recognize so that a legal system can be said to uphold the rule of law. The list of rights may be shorter or longer according to the writer.

     In Raz’s opinion, those who support the fat notion of the rule of law make the same mistake people make with the notion of democracy: they often ascribe to it all the good characteristics they want to see in a legal system. By doing that, the notion becomes useless. Raz argues that we should not confuse the rule of law with the rule of good law. As we saw in the first article about his criticism of Hayek, Raz says that the rule of law must not be confused with democracy, justice, equality before the law, human rights of any kind, or respect for persons or for the dignity of man (The Rule of law and its virtue, page 211, included in The Authority of Law, Oxford University Press, 1979, reprinted 2002).

     Rather than a thin notion, I think that Raz’s is an empty notion of the rule of law. We've seen in the first article that Raz does not controvert Hayek’s account of the rule of law. He disputes the value that Hayek sees in it. In rejecting the fat (or thick) notion, he asserts that he is “following in the footsteps of Hayek and many others who understood ‘the rule of law’ in similar ways” (p. 211). I do not think that is correct; I think Raz failed to understand Hayek. Link to my article: Misreading Hayek.

Rule of law: not a blueprint for a constitution

     Hayek wrote that what people understand by “law” when they refer to the government of the laws is not any law that the legislature approves. He wrote in The Road to Serfdom that “The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that, so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. This rule has little to do with the question whether all actions of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law…It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?” (p. 91, 50^th edition).

     That was written in 1944. In the preface he wrote in 1976 Hayek says that when he asked whether anyone would say that nonsense about Hitler’s government, he considered it a rhetorical question, only to find that professors Hans Kelsen (a very influential law scholar before and after the war) and Harold Laski (a British Labour politician) had maintained precisely that.

     So, not just any law is compatible with the rule of law. Not the edicts against the press of some Politburo or the confiscations allowed by the many Latin American permanent emergency laws and sanctioned by their courts. But then, what rules and rights? Too few or too many? Should we choose a thin or a fat rule of law?

    The choice is misleading, and in itself reproduces a fundamental mistake against which Hayek warned us. The task does not consist in making a list, short or long, of the rights we would like to have. Those who discuss whether “the rule of law” should include a shorter or longer list of rights have in mind a constitution. Our way of thinking in terms of constitutions and declarations of rights leads us to apply the same scheme to “the rule of law” but that is alien to the idea.

What rights are covered? All of them

     We received that idea from a long tradition of Western thought and practice. To a large extent, it is an English concept. A.V. Dicey was one of the most renowned English law scholars at a time when the notion of rule of law was still understood by English scholars. Therefore Hayek often refers to Dicey’s The Law of the Constitution (link to the full text ).

     When I say that the notion of the rule of law is no longer understood by many contemporary English law scholars I don’t mean to be disrespectful. I only mean that in their efforts to get a list of rights, judicial review, and possibly a written constitution, they have moved such a distance from English traditions that their way of reasoning is closer to that of German or American law scholars than to Dicey’s. Take for instance one of the most insightful and intriguing remarks made by him: he wrote that the British constitution is not the source but the consequence of the rights of individuals (The Law of the Constitution p. 121). That applies not only to John Smith’s right to his farm, but also to his right to vote at elections. Dicey says that in England the principles of private law have been so extended by the Courts and Parliament as to determine the position of the Crown and of its servants “thus the constitution is the result of the ordinary law of the land”.

     Law professors usually criticize English law because it lacks a list of constitutional rights. What they do not realize is that in the classic English understanding, all rights were equal, all had equal protection, all were constitutional. Or better, the distinction between constitutional and non-constitutional rights made no sense. If you had a right, a true right and not a wish or a privilege granted by some bureau, then it was part of the law of the land as much as the succession to the Crown.

Dicey tells us that “To say that the ‘constitution guaranteed’ one class of rights more than the other would be to an Englishman an unnatural or a senseless form of speech” (p. 119).

     It is also necessary to bear in mind that Dicey says that the principles of private law (contracts, torts, etc.) formed the basis of the constitution. In the continent, in the US, and probably in contemporary UK, the process is the reverse: we descend from public law to private law. In my country, Argentina, law scholars have been pushing public law principles into private law since the 30’s, and that is still considered “the modern trend”. Private law becomes less private each year, as it is mostly concerned with social goals, rights of minorities, and fair prices for consumers.

     So, what was covered by the rule of law in its original understanding? Everything; and the exceptions were viewed as such, as anomalies to be fixed or kept, but always suspected and distrusted. That laws ruled meant that all rights, be them contractual claims or the vote, were subject to general and abstract laws that described situations (buying a car, stealing a car) in which anyone could find himself at one moment or other. The question whether the list of rights should be short or long is nonsensical. Again, this is not meant to be disrespectful of the renowned thinkers who pose and decide that question in one way or the other. It merely shows that they refer to “the rule of law” in the same way in which they talk of a constitution or a human rights convention.

     The rule of law covers every right –the rights that I have, not the rights that I want to have. The house that I bought, not the one that I would have liked to buy. The right to apply for a job, not the right to force employers to hire me. As Edmund Burke said: we have equal rights, but not to the same things. That “the law rules and not men” means that these things belong to me by law, not because some official thought it best to adjudicate them to me. That right, and all the other rights that I have, and all the rights that people have, are the content of the rule of law.

     But then, what if we happen to live in a situation where for most people those rights are few, as were those of peasants in medieval England? What if some men have a right of life and death over some others? Is it not true then that –as Raz writes- the rule of law might in principle cover very little? Well, that is true in a most peculiar way: it is true if we think of a situation that is not true.

     Certainly, if we go back many centuries we find few and uncertain rights, but then we also find that there was little of what we know as the rule of law. Hayek's analysis does not refer to the Middle Ages, that is quite clear.

No historical coincidence

     By the time the ideal of the rule of law had developed, Englishmen enjoyed more rights (and more certain rights) than most other people, and no Englishman had a right of life and death over others. More importantly, that fact wasn’t mere historical coincidence. It wasn’t by chance that where law ruled, people had more rights –and more certain rights- than in other places. The system wasn’t perfect, but it was infinitely better than arbitrary rule. And it was perfecting itself all the time.

     Edmund Burke compared the English way of securing some rights and then advancing with a mortmain. You secure some capital of rights and then try to improve. The comparison is instructive, because it is the capital that you already have secured that allows you to acquire more.

     Of course, we can argue that it is possible to think of the rule of law in isolation, without referring to all the rights that grew with it, as free speech, habeas corpus, property rights, limited taxation, subjection of public officials to the law of the land, and many others. But our powers of abstraction are no ground for denying that in history, rights and the rule of law are born and die together.

Distorting the meaning of the rule of law

     As Hayek pointed out, we can’t have both the rule of law and government planning. When we advance on one direction, we retreat from the other. We can’t have both the rule of law and “positive discrimination”.

     Joseph Raz claims that after all the rule of law is not so important, that it has no moral value in itself. As I said in the first article in which I criticized his criticism, he failed to understand Hayek’s main arguments. But he also removes from the notion a great deal of its content. Even more confusingly, Raz adds content that do not belong to it.

     As to the latter, Raz tells us in his enumeration of what the rule of law requires that “The courts should have review powers over the implementation of the other principles. This includes review of both subordinate and parliamentary legislation and of administrative action, but in itself it is a very limited review –merely to ensure conformity to the rule of law” (6^th point in the enumeration, p. 217). It seems that Raz thinks that one of the requisites of the rule of law is that judges have review powers, and that he includes parliamentary legislation in those powers. That is odd because it would mean that England, the land where the notion developed, was at the same time the land were people failed to see one of its requisites. The issue cannot be treated here at length, but clearly judicial review of parliamentary decisions is no requisite of the rule of law. Some may consider that it is a better safeguard against parliamentary arbitrariness, but of course judicial review provides no remedy against judicial arbitrariness –it may even encourage it. The rule of law is not –and has never been- an answer to the question: Who has the last word on constitutional issues? As Hayek writes: "Whether, as in some countries, the main applications of the Rule of Law are laid down in a bill of rights or in a constitutional code, or whether the principle is merely a firmly established tradition, matters comparatively little" (The Road to Serfdom, 93).

     Raz also removes from the notion content that truly belongs to it. He writes that retroactive laws do not conflict with the rule of law if “it is known for certain that a retroactive law will the enacted” (p. 214). The assertion is very questionable. If all that is known is that some law will be enacted but not its content, then all we know is that the lawgiver will act in some way or other –and that is clearly in conflict with the rule of law. If on the other hand we know that a law will be enacted and we know for certain what its content will be, then that law is retroactive only in name or form –but that is an unreal situation and certainty is almost impossible to be real before the law is actually enacted.

     In any case, I don’t think it advisable to try to reconcile the rule of law and retroactive laws –not with such a vague formula as that provided by Raz. After all, the principle against retroactive rules has always been one of the most definite elements in the idea of the rule of law.

     It is alarming to see that the American law scholar Ronald Dworkin agrees with Raz when he writes that it might be enough to warn the population that moral standards will be applied in judging particular behavior (see his book Justice in Robes, 176). Raz’s exception in favor of retroactive legislation is ambiguous; Dworkin’s is vague –which is worse because more difficult to disentangle.

     Raz also writes that the rule of law does not mean equality, and he adds “before the law or otherwise” (p. 211). But it is certain that equality before the law is one of the central elements of the idea of the rule of law as it has been understood for generations, and that cannot be dismissed by simply telling us that it is not. Of course, I do not know what Raz includes in his otherwise but if he means equality of income or fortune, then it is clearly not part of the meaning of the rule of law. As Hayek explained, it is against it.

The rule of law is not a law

     Of course, there are exceptions to a perfect equality before the law. Minors are treated differently, and in the past women too. But even then we must not base general conclusions on exceptions. The rule of law is not a law, it is an ideal; it is a conception about law, about government, and about liberty. Besides, the inequality of minors has definite limits –and the same applies to the situation of women in the past. The right of a minor to his inheritance is protected by the law as much as that of an adult –the limitations apply to the exercise that a minor can make of that right over his possessions. Women were protected in their persons and property no less than men. Certainly, there were some differences as to the way of disposing of their property, the right to vote, etc. But we must keep a sense of proportion: even in Victorian times, English women enjoyed more certain rights than most other women in Europe –not to mention the rest of the world.

Judges are not the main players

     Another way in which Raz’s explanation misleads us about the content of the idea of the rule of law is that he exaggerates the importance of the work of judges. Most of his principles apply to what he describes as the machinery of enforcing the law (p. 218). That is a common error of law scholars (or rather a lack of perspective) against which Hayek warned us.

     Hayek says about the certainty of the law: “It has become the fashion to belittle the extent to which such certainty can be achieved, and there are understandable reasons why lawyers, concerned mainly with litigation, are apt to do so. They have normally to deal with cases in which the outcome is uncertain. But the degree of certainty of the law must be judged by the disputes which do not lead to litigation because the outcome is practically certain as soon as the legal position is examined. It is the cases that never come before the courts, not those that do, that are the measure of the certainty of the law. The modern tendency to exaggerate this uncertainty is part of the campaign against the rule of law…” (The Constitution of Liberty, p. 208).

     Without denying that people may apply rules by themselves, lawyers and law professors tend to focus on the application of rules by judges. When that is coupled with a misleading way of referring to judicial and administrative decisions by the name of “particular laws” (thus creating a false analogy between them and true laws) we are almost bound to misunderstand what is crucial for the rule of law.

     Raz tells us that “what the doctrine requires is the subjection of particular laws to general, open, and stable ones. It is one of the important principles of the doctrine that the making of particular laws should be guided by open and relatively stable general rules” (p. 213). That is not wrong, but it puts the stress on the wrong place.

     There is yet another false analogy lurking when we say that general rules “guide” both judges and ordinary people. The latter pay attention to laws in order to pursue their own plans. To use Hayek’s image, they use road signposts to guide them in following the path they have chosen according to their preferences. Judges aren’t guided by laws in that way when they decide a case –or rather, they should not.