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.

Joseph Raz against Friedrich Hayek on the rule of law

 This is the first of three articles on the criticism that Joseph Raz directed against Hayek’s defense of the rule of law. 
It is strange to see an economist (Hayek) stressing the value of the rule of law, and a law professor (Raz) contradicting him. I think that Raz made three mistakes, and they will be the subjects of the three articles. I will sum up their content:

1st. article:  Raz fails to understand Hayek’s main points.

2d. article: Raz strips from the notion of the rule of law  most of the content that belongs to it according to history and to common understanding; and he adds things that do not belong to it.

3d. article: Raz tries to show that the rule of law might be of no value in authoritarian non-Western nations. That doesn’t prove that the rule of law has little value for free Western nations (which are included in Raz’s low estimation of the rule of law). But in fact, Raz’s argument is also wrong concerning non-Western nations.
I have added another article, where I try to explain what I think is the main misunderstanding about Hayek's concept of the rule of law

An economist revives the interest in the rule of law

     A person not acquainted with the ideological map of the XXth century would find it surprising that it was Friedrich Hayek, an economist, who first revived the interest in the notion of the rule of law. He dedicated chapter V of his book The Road to Serfdom (link to a condensed version) to the analysis of the relations between planning and the rule of law. Hayek’s concern about that issue appears again in his other books.

     The notion of the rule of law had been neglected during most part of the XXth century –not without horrible consequences. Hayek rediscovered it and tried to put it back on the ideological map. That was odd enough and tells a lot about that map.
     But it was more surprising still, and more revealing, that it was a prominent law scholar at Oxford, Joseph Raz, who criticized Hayek’s efforts, and also –with just a few derogatory remarks– the great British thinkers that had taught the notion of the rule of law to generations of lawyers and politicians.

Hayek's ideas

     Hayek showed that there is a conflict between planning and the rule of law. He explained why it was possible to reach an agreement about rules, but not about planning at a national scale. When planning is confined to a single industry there may be agreement among capitalists and workers that it would be a fine thing to impose a ban on foreign products. But when the choices are whether to increase the salaries of nurses or of agricultural workers, have better schools or more generators in power plants, “nothing short of a complete system of values in which every want of every person or group has a definite place is necessary to provide an answer” (p. 86). The Soviets and the Nazis tried to impose that system of values.

     Hayek traced the ideas of national-socialism back to the time when they still had not been united by a hyphen. He reviewed the intellectual atmosphere that prevailed before Hitler gained supreme power over Germany. In The Road to Serfdom he showed how socialist thinkers had removed the obstacles for Hitler by sneering at the notion of the rule of law. He provided names and dates. In particular, he analyzed the ideas of Werner Sombart, a Marxist economist that became one of intellectual props of the Nazis. In the Germany of the 30s, the fight between communists and national-socialists was the inevitable and savage struggle for power between different collectivistic parties. However, both had a common enemy, says Hayek, in the bourgeois morality and its respect for limits and principles. Both Communists and Nazis derided laissez-faire as anachronistic

     Certainly Nazism wasn’t a return to the rule of law and free markets. For its millions of supporters, it was an improvement on socialism. It was still planning backed with the full force of the State, but better. Four year plans instead of the Stalinist five year plan. One of the improvements of the Nazis was the result of a lesson they learned from the experiments of the Soviets. Lenin himself had taken notice of the havoc created by the complete collectivization of all enterprises. That is why he provided some room for private ownership in his NEP (New Economic Policy). Lenin vaguely understood that you don’t have to own the shop in order to run it. It is enough (and better) if you just give orders to the owners (the miserable people they still called “owners”). One of the many advantages of that scheme is that when your orders lead to chaos and poverty, you can blame the owners.

     The Nazis extended Lenin’s NEP. They retained nominal owners for industries and shops, but all became executors of the State’s plans. Those capitalists who still clang to the notion that they directed their own enterprises found themselves in jail. For instance, Hugo Junkers, the inventor and entrepreneur that introduced new materials and techniques for the production of aircraft, was forced to give his patent rights to the government, his company was expropriated, and he was arrested. You are the owner, yes, but you must follow the orders, or you will quickly find that ownership has lost all substance. You are there to satisfy the bosses –and to take the blame for their mistakes.

     The Road to Serfdom includes a chapter entitled “Why the worst get on top” that shows how government enforced planning gives authority to people fond of exercising discretionary powers. Hayek shows why they must be discretionary and not subject to permanent rules. The chapter would sound very familiar to anyone who has worked under officials, judges, or bureaucrats who don’t recognize moral limits to their powers –only the power of those above them.

     One of the key distinctions we learn from Hayek is that between rules and orders (or in other words: between laws and commands). He says that rules are like traffic signs that show possible routes, forbid some turns, but don’t tell anyone where to go. In contrast, orders tell you where you have to go today, and tomorrow a new order may tell you to go to some order place. Orders are ad-hoc, they are dictated and replaced “on the merits”, that is: according to the evaluation that some leader or some board makes of individual circumstances.

     Hayek showed that orders were the basis of the command economy of the Soviets and Nazis, and to some extent of the interventionist policies of many Western governments. Still today, many people do not recognize any regulation other than that based on commands. For them, an economy based on general and permanent rules simply lacks order.

     The Road to Serfdom was first published in 1944. It was reprinted many times, and Hayek added new prefaces in 1956 and 1976.

A law professor says Hayek overvalued the rule of law

     In 1977, Joseph Raz, a professor at Oxford specialized in the philosophy of law, wrote and article in which he tried to show that the renewal of interest in the concept of the rule of law was largely unjustified and based on a fallacy. His article was later included in one of Joseph Raz’s books (The Authority of Law. Essays on Law and Morality, published in 1979 and reprinted in 2002. When I cite pages in Raz’s article, I refer to this book).
     Raz’s article was entitled The Rule of Law and its Virtue. The title was somewhat misleading and could have better sum up Raz’s main conclusion by saying: “The Rule of Law and its little Virtue”.

     Raz’s didn’t dispute Hayek’s conceptual and historical account of the notion of the rule of law. On the contrary, he started his article saying that “F.A. Hayek has provided one of the clearest and most powerful formulations of the rule of law” (p. 210). Raz’s line of attack was different: he asserted that there was not much value in the rule of law, and he finished his article saying that “Sacrificing too many social goals on the altar of the rule of law may make the law barren and empty” (p. 229). From the beginning of his article he said that Hayek’s conclusion was a fallacy. That fallacy was in Raz’s opinion “the assumption of its [the rule of law] overriding importance”. He announced that his purpose was to show that Hayek’s conclusions about the value of the rule of law were mistaken (p. 210).

Raz failed to understand Hayek’s book

     Certainly, Hayek never said that adherence to the rule of law overrides in importance any other value. Rather, he said that the attempts of planners (be they do-gooders, tyrants, or a combination of the two) that neglected the rule of law led to poverty and serfdom. Hayek never said that respect for the rule of law was more important than values like freedom and progress. Rather, he said that they come together, and in fact came together in history. The first chapter of The Road to Serfdom is entitled The abandoned road. Respect for the rule of law was a road. A road leading where? To the spectacular advances that Western nations achieved in the XIX century, and to those still in the future. So it is highly misleading to say that Hayek thought that the rule of law overrides any other value. It was the road to them. He never suggested that liberty and progress should be sacrificed on the altar of the rule of law. By abandoning it, one followed The Road to Serfdom. That was plainly clear in the book.

Hayek shows why planners cannot tie themselves to general and permanent rules

     Let’s see how Hayek described the conflict between the rule of law and planning (I will have to cite Hayek at some length in order to show later that Raz misunderstands him): “The planning authority cannot confine itself to providing opportunities for unknown people to make whatever use of them they like. It cannot tie itself down in advance to general and formal rules which prevent arbitrariness. It must provide for the actual needs of people as they arise and then choose deliberately between them. It must constantly decide questions which cannot be answered by formal principles only, and, in making these decisions, it must set up distinctions of merit between the needs of different people as they arise and then choose deliberately between them. It must constantly decide questions which cannot be answered by formal principles only, and, in making these decisions, it must set up distinctions of merit between the needs of different people. When the government has to decide how many pigs are to be raised or how many busses are to be run, which coal mines are to operate, or at what prices shoes are to be sold, these decisions cannot be deduced from formal principles or settled for long periods in advance. They depend inevitably on the circumstances of the moment, and, in making such decisions, it will always be necessary to balance one against the other the interests of various persons and groups. In the end somebody’s views will have to decide whose interests are more important and these views must become part of the law of the land, a new distinction of rank which the coercive apparatus of government imposes upon the people” (page 82, Fiftieth Anniversary Edition).

     The difference between enacting permanent formal rules and taking decisions “on the merits” of ever changing situations can be compared to that “between providing signposts and commanding people which road to take”. Formal rules such as those that describe the requisites of contracts or the consequences of failing to fulfill one’s promises “refer to typical situations into which anyone may agree and in which the existence of such rules will be useful to a great variety of individual purposes. The knowledge that in such situations the state will act in a definite way, or require people to behave in a certain manner, is provided as a means for people to use in making their own plans. Formal rules are thus merely instrumental in the sense that they are expected to be useful to yet unknown people, for purposes for which these people will decide to use them, and in circumstances which cannot be foreseen in detail. In fact, that we do not know their concrete effect, that we do not know what particular ends these rules will further, or which particular people they will assist, that they are merely given the form most likely on the whole to benefit all the people affected by them, is the most important criterion of formal rules in the sense in which we here use this term. They do not involve a choice between particular ends or particular people, because we just cannot know beforehand by whom and in what way they will be used.” (p. 83, I have added emphasis in bold letters for reasons that will be clear later).

     Hayek continues: “In our age, with its passion for conscious control of everything, it may appear paradoxical to claim as a virtue that under one system we shall know less about the particular effect of the measure the state takes…Yet this consideration is in fact the rationale of the great liberal principle of the Rule of Law”. That Raz failed to understand the paradox will be clear later.

     Hayek provides two arguments for the superiority of formal rules. One is economic: “the state should confine itself to establishing rules applying to general types of situations and should allow the individuals freedom In everything which depends on the circumstances of time and place, because only the individuals concerned in each instance can fully know these circumstances and adapt their actions to them. If the individuals are to be able to use their knowledge effectively in making plans, they must be able to predict actions of the state which may affect these plans. But if the actions of the state are to be predictable, they must be determined by rules fixed independently of the concrete circumstances which can be neither foreseen nor taken into account beforehand” (p. 84). That explains why government enforced planning is less productive than free enterprise.

     Hayek presents also a moral and political argument in favor of formal rules. “If the state can exactly foresee the incidence of its actions, it means that it can leave those affected no choice…General rules, genuine laws as distinguished from specific orders, must therefore be intended to operate in circumstances which cannot be foreseen in detail, and, therefore, their effect on particular ends or particular people cannot be known beforehand. It is in this sense alone that it is at all possible for the legislator to be impartial. To be impartial means to have no answer to certain questions –to the kind of questions which, if we have to decide them, we decide by tossing a coin” (pages 84-85). Who is to benefit more from a contract over futures? What industry can make better use of iron? Formal rules have no answers for these questions. And that is both efficient and impartial.

     But in planning the government “must, of necessity, take sides, impose its valuations upon people and, instead of assisting them in the advancement of their own ends, choose the ends for them…the state ceases to be a piece of utilitarian machinery intended to help individuals in the fullest development of their individual personality and becomes a ‘moral’ institution –where ‘moral’ is not used in contrast to immoral but describes an institution which imposes on its members its views on all moral questions whether these views be moral o highly immoral. In this sense the Nazi or any other collectivist state is ‘moral’, while the liberal state is not” (p. 85, emphasis added for reasons that will be clear later).

     Again on the moral argument for formal rules, Hayek says “equality before the law is in conflict, and in fact incompatible, with any activity of the government deliberately aiming at material or substantive equality of different people, and that any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law. To produce the same result for different people, it is necessary to treat them differently. To give the same objective opportunities in not to give them the same subjective chance”. That is the different between equality under the law and equality of outcome.

     Hayek admits that “It cannot be denied that the Rule of Law produces economic inequality –all that can be claimed is that this inequality is not designed to affect particular people in a particular way. It is very significant and characteristic that socialists (and Nazis) have always protested against ‘merely’ formal justice, that they have always objected to a law which had no views on how well off particular people ought to be, and that they have always demanded ‘a socialization of the law’”. He says that the legal theorist of National Socialism, Carl Schmitt, was not altogether false when he opposed the liberal Rechstaat (i.e. the Rule of Law) and the ideal of the gerechte Staat (i.e. the just State). Where I live, Argentina, you can fill many libraries with books and articles that still today repeat Carl Schmidt’s words.

Raz's objetion: the same made by Socialists and Nazis

     We must assume that Raz read The Road to Serfdom. But then it is clear that he failed to understand what he read. Let’s see what Raz says against Hayek’s arguments. Raz writes that the rule of law “is not a moral virtue has such” (p. 226). It has only a negative value, it prevents arbitrariness, but adds no positive good. Raz admits that conformity to the rule of law is essential for securing whatever purposes the law is designed to achieve but it “also enables the law to serve bad purposes” (p. 225). It has only the virtue of an instrument; Raz compares it with a sharp knife, which can serve good or bad purposes. What counts are social goals, and they may justify departures from the rule of law. Raz concludes his article saying that we must not “make the law barren and empty” (p. 229).

     Raz repeats the objections of the socialists and Nazis, to which Hayek had already answered, with the difference that Raz uses the language of analytical philosophy instead of Socialist or Nazi rhetoric. He does not even mention Hayek's argument about the impossibility of agreement about plans, says nothing about the conflict with democracy, no reference to Hayek's historical analysis, no comment about Hayek's account of the erosion of the rule of law by socialist thinkers, no observation about Marx, Sombart, Schmidt, Laski,...nobody. Raz approaches the problem as if it had no history and no characters. He just repeats the objection to the rule of law made by socialists and Nazis and thinks that he has found a decisive argument.

     The socialists complained that bourgeois law had only formal value; Raz says that it has only a negative value. Carl Schmitt praised the advantages of the just State over the Rule of Law; Raz tell us not to sacrifice social goals on the altar of the rule of law. The Nazis fought to make the law a tool that would serve the material and moral needs of the Fatherland; Raz says that there is no moral value in the instrument as such, only in the goals it serves.

An instrument to whom?

     Raz misunderstands Hayek in yet another point. Hayek explains that formal rules that recognize general principles in advance can be used for people to make their plans –their own plans. In contrast, when Raz mentions goals and purposes he mostly refers to those of the lawmakers and judges.

     Raz does not deny that stable laws “provide a safe basis for individual planning” (p. 220). But then he seems to forget it and writes that “it is of particular importance to remember (?) that the rule of law is essentially a negative value. It is designed to minimize the harm to freedom and dignity which the law may cause in its pursuit of its goals however laudable these may be” (p. 228, emphasis added). Here we see that he assumes that the goals that the law serves are its goals. Hayek writes about the goals of the man who signs a contract to buy a shop with the idea of starting a company; Raz writes about the State’s goal.

     Again he writes that “The rule of law is essentially a negative value. The law inevitably creates a danger of arbitrary power –the rule of law is designed to minimize the danger created by the law itself…Thus the rule of law is a negative virtue in two senses: conformity to it does not cause good except through avoiding evil and the evil which is avoided is evil which could only have been caused by the law itself” (p. 224). According to that, the only purpose of the rule of law is to prevent the bad deeds of public officials in applying the law. But if there were no laws and officials, there would be no room for arbitrariness.

     Raz assumes that no good is ever done by the rule of law (no small company started with the security provided by a contract), only the prevention of harm from public officials. That a new company has started its life does not count as a good that law made possible, easier, or safer because it was an individual’s decision (not the law imposing its puposes on him) and that does not count.

     Raz confirms his notion about whose purposes laws serve when he writes: “We could divide the purposes a law is intended to serve into two kinds: those which are secured by conformity with the law in itself and those further consequences of conformity with the law or of knowledge of its existence which the law is intended to secure. Thus a law prohibiting racial discrimination in government employment has as its direct purpose the establishment of racial equality in the hiring, promotion, and conditions of service of government employees (since discriminatory action is a breach of law). Its indirect purposes may well be to improve race relations in the country in general, prevent a threat of a strike by some trade unions, or halt the decline in popularity of the government. Conformity to the rule of law does not always facilitate realization of the indirect purposes of the law, but it is essential to the realizations of its direct purposes…Therefore, if the direct purposes of the law are not to be frustrated it must be capable of guiding human behaviour, and the more it conforms to the principles of the rule of law the better it can do so” (p. 225). The law has direct and indirect purposes and it must guide people’s behavior so as to reach them. It is plain that Raz is not talking about people’s goals and plans.

No positive value?

     Raz’s focus on the purposes of the State prevents him from realizing that formal rules allow individuals to be truly moral. Whenever he sees no values imposed on people by the coercive apparatus of the State, he concludes that no value is served. Repeating the objections of the Socialists and Nazis, he fails to see that only true laws, those that have no other purpose than to serve the lawful purposes of individuals, allow individuals to be moral. 

     Should I work more in order to earn more? Or should I parade my misery and that of my children? Should I acquire those skills that people consider useful? Or should I ask the government to force others to pay me for what they don’t want? Should I be concerned about the education of my children? Or should I leave their education to community organizers and teenage gangs? All these are practical questions and also moral questions.

     The Nazis boasted that they had introduced morality into barren and empty laws. Point 19 in the Party’s program demanded “substitution of a German common law in place of the Roman law serving a materialistic world-order”. In fact, Weimar laws had already “advanced” a great deal in that direction. As Hayek acknowledges, in a way that boasting of the Socialists and Nazis was not without basis. A law that says that contracts should be interpreted so as to promote the interests of the nation, or of the working-class, has a moral purpose that a XIXth century code typically lacks. But it is that formal character of the rules that allows individuals to assume responsibility for their own lives. That is the paradox that collectivists of left and right failed to understand.

     Many years later, and in spite of the advantage of having Hayek’s books at his disposal, Joseph Raz repeated the mistake.