Tuesday, March 22, 2011

Law, Legislation and Spring Break

Good afternoon, folks, and welcome from sunny Florida, where I am visiting my grandparents over spring break.

I must start this week with a confession: my mind was addled by the tapioca pudding and hours of tantalizing bingo in the retirement home, and I... completely forgot until this morning about this week's post. This, of course, wouldn't be a problem on its own, except I conveniently left my copy of _Constitution of Liberty_ and my reading notes at home. I had considered BSing my way through this week's post and looking for summaries on-line (hey, I too was once an undergrad!), but I won't waste your time. Instead, I'll keep this week's comments general (with my apologies) and brief (no apology needed). Parenthetically, I resent the jab about economists (you know "an animmal on low sleep and socially awkward"; I get plenty of sleep, thank you very much).

All your good comments this week are inter-related, so I will respond by theme, rather than by comment.

First, we have in this chapter the classic Hayekian dichotomy between emergent rules (law) and constructed rules (legislation). Naturally, Hayek trusts the former, because they overcome the knowledge problem, having been "slowly forged on the anvil of time" (not Hayek, btw; Justice Hugo Blackman on the common law). Naturally, Hayek mistrusts the latter, as it is the engineered imposition of the Legislator's mind -- and thus a violation of the knowledge problem.

Second, this does not mean there can be NO order, no planning... but we have to be careful about it. Hayek writes in an earlier chapter about the importance of piecemeal changes, as we tinker at the margin, using our limited reason, to correct path-dependence, or existing law that was in fact legislation. Likewise, Hayek would never argue that we don't need planning, but should trust everything to spontaneous order. The question is the level of planning. So, to repeat my earlier example, if you try to engineer a country's economy, you're set for failure (exhibit one, Soviet communism). But if you don't get out of bed in the morning, because spontaneous order will do your homework, you're also in for a bad surprise. I think, then, this is the "middle way" between spontaneous order and planning (I use this expression cautiously, because middle way has come to mean light socialism, gentle central planning -- I mean it here in the sense of using reason to find the limits of reason, and also figuring out what we need to plan, and what we need to leave to spontaneous order).

Third, we can go back to the central them of Hayekian thinking: epistemology and overcoming the knowledge problem. The law, then, is knowledge -- knowledge about the limits of our individual sphere, knowledge about the limits of the individual spheres of others, knowledge about how we're expected to treat other people. This implies a few things: (1) legislation is not going to be knowledge, because it's not general, and because it imposes the goals of some over others; legislation, then, comes closer to coercion; (2) we will have to bow to rules that we don't understand; just as we don't understand where individual prices come from (but we don't need to... all we need to know is the price, and that's enough to act and plan); just as we don't need to know the origins of social rules (we just need to learn what it takes for peaceful cooperation, through the signal of approbation); we also don't understand the law, yet we submit to rules we don't understand (we don't need to understand them -- they're part of tacit knowledge -- and if they're really law, they're general rules and thus not discriminatory. If they're actually legislation, then they ARE discriminatory, and the excuse of conforming rules to which we don't understand is merely a tool of imposition (see next paragraph)... but there's always the option to correct past abuses.

Finally, I close with a question. Instead of a generous reading of Hayek, how about a public choice reading. Hayek seems to think that most rules will be emergent (if we gets things right), and the occasional bad rule (or the plainly visible, thinly veiled legislation) will be easy to fix, because fixes will be marginal. But what if Hayek is being overly optimistic. I'm thinking of the extreme scenario of the noble lie (from Plato, that famous noble liar); basically (pardon my lack of philosophical sophistication), if a political order is to persist, people need to be made to follow it, so you have to lie to them about certain things, like the specialness of the regime, like the fact that the government is of/by/for the people, etc. So it's noble because it allows for order, cooperation, civilization. But it's a lie because... well, it's not true. Think about it for a second. Back to the US founding. The heavens parted, the selfless founders wrote a perfect constitution, and then went back to farming? Well, again, the American founding is pretty amazing, and we lucked out on many margins. But there was public choice at work, horsetrading and compromising left and right, agricultural v. commercial v. antifederalist interests, jockeying for post-constitutional power, etc. And need I really, with this audience, question the claim that the government serves the people and that democracy works?

Well, Hayek comes along and argues that we have to submit to rules that we don't understand. I am inclined to agree. After all, we can't simply rely on everybody making an on-the-spot cost-benefit analysis or philosophical argument; instead, we rely on the past, we rely on emergent rules, we rely on custom, and we rely on law, all of which are heuristics to aid our limited reason, with the simple goal of social cooperation, so we can all thrive and not kill each other. I wonder, though, if Hayek is a touch too optimistic about the law-to-legislation balance, and if he is not accidentally playing into the noble lie. After all, if it is indeed noble, let us not forget that it's also a lie. Thoughts?

I'll mop up next week with any particularly relevant passages I want to re-examine. My apologies for the sloppiness. Until next week then, NW


  1. A lie can not be noble no matter what "good" comes from it. If I could go back in time and murder Hitler or Stalin before they harmed anyone, would it still not be murder? It still would be murder and would still be wrong, and a lie would fall into the same category.

  2. Sometimes there are white lies though which can be good. I mean it is still a lie, but at times the benefits of the lie and the good it brings can outstrip the bad of lying. One of my best friends in highschool could never lie and she was naturally outspoken with her thoughts. She hurt so many feelings and was rejected. I think it is ok to lie in situations where one is asked a question and tact is needed to answer it. It happens and it is part of life.

    PS- For further understanding of this point I would recommend watching the excellent film "The Invention of Lying"

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  4. I was thinking about the middle way you mention between spontaneous order and planing. Shouldn't we think of planing in it's different forms and describe it as the total spectrum, but where it is really the origin of where this planing is originating from of importance. Planing can come from the bottom up or the top down or any place in between. I would think from the Comos and Taxis work we read at one point in time that Heyak would be in favor of planing and organization from the bottom up (the individual on a person or group planing for the individual). This would tie directly into spontaneous order, as if many can plan their personal chooses they can without knowing it create a system of emerging order. Perhaps I am misunderstanding this point though.