A Proclivity for Plunder

The left and the right are united in wanting to regulate the internet by taking from their enemies and giving to their friends

You might think that Steven Guilbeault, environmentalist activist turned Canadian Heritage minister, and Josh Hawley, a leader of the will-to-power faction of the American right, don’t have too much in common. But, as it happens, they do: both think that, when it comes to regulating social media, plunder is the right policy. Even by the standards of the times, their positions are unusually crude. But they have at least the merit of exposing a widespread misunderstanding of the permissible bounds of the activity of the state.

Mr. Guilbeault, as Michael Geist has noted on his blog, is promising to throw more money at the Canadian media and cultural sector and, in order to do so, to “go and get that money where that money is. Which is web giants.” The current idea, as Professor Geist explains in another post, appears to be to charge Google, Facebook, et al. for linking to news articles listed or shared on their platforms, but there may be other chicanery in the works, such as requirements that these companies, or some others, spend some amounts determined by government fiat on content deemed Canadian, or that they give such content a prominence they otherwise would not.

This brings me to Mr. Hawley who, as Christian Schneider explains at The Bulwark, is trying to induce regulatory retaliation against Twitter and Facebook for blocking or limiting the sharing of a dodgy New York Post article. This demand is only the latest in a series of claims by people who used to believe in free speech and free markets (Mr. Hawley’s Twitter biography describes him as “constitutional lawyer” first and husband, father, and senator after that) that social media companies must be made to carry their or their ideological allies’ communications, and punished in case they limit these communications’ reach or prominence.


As you can see, these plans agree in the essential principle that successful platforms must either be requisitioned directly or have their bank accounts raided for the benefit of favoured constituencies. Only the details ― namely, the identity of the beneficiaries ― differ. But then again, once the principle has been accepted, the details can and will change as the partisan make-up of governments shifts. It would be a mistake to focus on the latter rather than the former, though as Mr. Schneider notes, it is a mistake that is quite common on American right: “[t]his may come as a shock to Republican senators, but a freshly empowered Biden/Harris [administration] will not likely make content moderation determinations premised on what produces the largest font of liberal tears.”

The principle on which Messrs. Guilbeault and Hawley operate is plunder. They are not alone, of course: so do countless other politicians, not to mention people who vote for them. As Frédéric Bastiat wrote in his great essay “The Law“:

Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property. But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder.

Plunder by a single person or a small band is criminal. Plunder by a monarch and a dictator is illegitimate. But plunder under colour of law by a democratically elected government ― why, that is simply public policy:

Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few — whether farmers, manufacturers, ship owners, artists, or comedians. 

By the way, lest you think that the belief that this sort of policy immoral is some peculiarly French radicalism, here’s Justice Chase, speaking in much the same terms in Calder v Bull, 3 Dall (3 US) 386 (1798):

An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. … A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. (388)

And lest you think that this is just American radicalism, let me also quote to your Sir William Blackstone, who wrote in his Commentaries on the Laws of England that “the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature”, (124) and which “may be reduced to three principal or primary articles; the right of personal security, the right of personal liberty, and the right of private property”. (129) The protection of these rights is the proper object of the law, so that

the law, which restrains a man from doing mischief to his fellow-citizens, though it diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practised by a monarch, a nobility, or a popular assembly, is a degree of tyranny. (125-26)

Yet wanton tyranny and plunder is precisely what Messrs. Guilbeault and Hawley propose. Google, Facebook, Twitter, Netflix, and the others have laboured to create platforms and services that hundreds of millions of people want to use. Their creators started from very little ― the beauty of the internet is that barriers to entry are pretty low. But now, instead of imitating them and creating platforms and services of their own, others ― be they journalists whom too few people want to pay for the privilege of reading, artists whose work is of little interest to anyone, or conspiracy theorists ― demand to be given access to these platforms or to the revenue that they generate. And politicians are only too happy to oblige.

Why wouldn’t they be? They think it costs them nothing. They are wrong. As Bastiat points out, one odious consequence of the perversion of the law into an instrument of plunder is that, because people naturally tend to associate what is just with what is lawful, they come to think of plunder and oppression as just: “Slavery, restrictions, and monopoly find defenders not only among those who profit from them but also among those who suffer from them.”

The other danger of turning the law from protection of liberty and property to their destruction is perhaps the more dangerous because it is even more widespread:

As long as it is admitted that the law … may violate property instead of protecting it … Political questions will always be prejudicial, dominant, and all-absorbing. There will be fighting at the door of the Legislative Palace, and the struggle within will be no less furious.

This, and with increasing intensity, is what we are seeing. The stakes of politics are so high because it is admitted on all sides that the power of the winners is virtually untrammeled. The limits and restraints whose existence would in the past have been recognized, at least implicitly, such as the principle that a government shouldn’t simply raid the coffers of a particular company or handful of companies, let alone dictate what messages media ― social or otherwise ― should carry, are no longer recognized. On the one hand this is an escalation. On the other, nothing more than accepted principles being taken to their logical conclusion.

The prize of victory ― a permission to plunder ― is great. The threat of defeat is greater still. Because one expects to use power to engage in plunder oneself, one comes to expect one’s opponents to do likewise, at one’s expense. Losing an election means not simply that someone else gets to enjoy the honours of office, but that they get to despoil and silence you. Hence the desperation of the American right to hang on to power; but hence also the conviction of the Canadian left that it is entitled simply to take from those whom it does not like. These afflictions are not peculiar to countries or to parties. They proceed from the same source: the common conviction that there is no limit to political power, and in particular that plunder is part of the legitimate spoils of political office.

Now of course no one wants any of this to happen. Political schemers do not want moral decadence and civil war. But, they feel, they have no choice. If their preferred schemes do not get implemented, there will be no Canadian newspapers or no right-wing conspiracy theories on Twitter! They are convinced that if something is not done by force and the behest of a politician (preferably themselves), it will not be done at all.

And hence the state becomes the answer to all problems. Much of the right now believes this as fervently as does the left. As in Bastiat’s and in Hayek‘s time, this socialist mindset is spread across political parties. Yet as Bastiat wrote,

Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

Messrs. Guilbeault and Hawley have no faith in the ability of their fellow-citizens to take care of themselves. Cede to the siren songs of libertarianism, they think, and the sky will fall. Let the other party take power, and it will fall just as surely, if a little slower. They want to save humanity with their projects. Alas, but their preferred means of doing so is plunder. For all their undoubted differences, their commitments to civilization are no more different than those of Alaric the Goth and Attila the Hun.


Again, the projects of Messrs. Guilbeault and Hawley are only an unusually start illustration of how much ― too much ― almost all ― of our politics is done. Very little of it is about establishing general rules that protect the rights of all equally. All that matters is ― as Lenin asked ― “who, whom?”. Who is going to plunder and silence whom? Who will be the winner and who the victim? For vae victis.

This is bad policy of course, but more importantly, dangerous and immoral. No person and no party, no matter the size of their majority, have the right to behave like this to their fellow human beings. As Bastiat said: “No legal plunder: This is the principle of justice, peace, order, stability, harmony, and logic. Until the day of my death, I shall proclaim this principle with all the force of my lungs (which alas! is all too inadequate).”

The Sex Appeal of Power

I’ve noticed a disturbing trend recently, in both politics and law. The idea is what I call the “one-way ratchet fallacy” of power. It goes like this: when an institution or entity obtains power of some kind, that power will only ever be used to fulfill certain goals rather than others. That is, people might assume that power will always run in favour of the policy outcomes they like. This is, in a word, naïve—but at worst, it is a gross misunderstanding of the problems with power. The increasing tendency to think this way only reinforces the need for law and custom to limit, rather than unleash, power.

Two examples come to mind that illustrate this phenomenon. The first is an issue near and dear to my heart, and that issue is constitutional interpretation. In Canada, a major misunderstanding of the Persons Case holds that Canada’s Constitution is a “living tree”—in other words, the Constitution must “grow” to fit the emerging realities of today’s society. Under this theory, judges in a system of strong judicial review decide when and in what direction the Constitution should evolve.

Putting aside the fact that only some work has been done to actually provide rules to govern the “living tree” theory, and also putting aside the fact that the Supreme Court has never provided such guidance (and in fact does not consistently endorse this theory), there is a certain “ideological sex appeal” to living constitutionalism, as Chief Justice Rehnquist once said. That appeal is that the law and the Constitution can be used to achieve policy outcomes that one likes, ensuring that the Constitution protects certain outcomes that are consistent with “evolving standards of decency” (to borrow an American phrase). Unsurprisingly, progressives see the potential in living constitutionalism. It is a good way to ensure the Constitution keeps up with modern times and, potentially, modern progressive causes.

But, there is a major risk that should cause those who endorse living constitutionalism to pause. Living constitutionalism contains within it a dangerous assumption: that judges will always be on the side of angels. The risk was put eloquently by Justice David Stratas of the Federal Court of Appeal in a talk a few years ago. The general gist of it is this: imagine, some years from now (or maybe we do not even need to imagine) that there is some existential crisis affecting our society. Courts are asked to deal with a legal issue arising out of that crisis. Would we rather the court decide the matter according to settled doctrine, painstakingly developed over generations? Or on the personal say-so of judges? There is a risk that the personal say-so of a judge might run in a direction that progressives would not like. Basically, without rules governing the exercise of legal power by judges, it’s a coin flip in terms of result.

Lest anyone think that this is an inherent flaw of progressives, those on the right can also fall victim to the alluring sex appeal of power. A good example is the recent Trump administration move to “ban” government contracting and other relations with businesses and others that offer some critical race theory training. Now, it is more than fair to say there are major debates raging right now about critical race theory. That’s a somewhat separate issue. What is important here is that the power of the government is being used to root out certain ideas rather than others.

This is a different issue from living constitutionalism, since here it could be argued that governments have the power to implement their view of the “public good;” law, by its nature, is supposed to be governed by rules that are as close to “neutral” as possible. So those on the right might feel emboldened by Trump’s move because it implements their view of the good. But once the precedent is set that governments can police ideology by picking winners and losers in business, and ferret out views it doesn’t like from the inside, it is just as possible that a future administration could fall victim to the sex appeal of power in the opposite direction. Power can be used, in the future, to limit the spread of ideas that those on the right might find appealing: free market economics, personal liberty, whatever it is.

While the situation is admittedly slightly different than the living constitutionalism example, this situation calls for a political custom surrounding the exercise of power. As Dicey said, laws are not enough; there must be a “spirit of legality” that governs the exercise of power. This is understood as a reference to customary norms governing the exercise of power. Surely, one custom might be that governments shouldn’t pick winners and losers based on ideology (within reason).

The living constitution example and the critical race theory example illustrate the sex appeal of power. It can be exercised in a certain political direction, to be sure. And it might feel good for power to be exercised to the benefit of certain political factions. But the more power is granted to certain actors, and the more that laws and customs liberate that power, the more we might expect the one-way ratchet to keep ratcheting up. In politics, this might be one thing. But in law—especially when it comes to constitutional interpretation—the sex appeal of power is positively dangerous.

Happy Canada Day!

The anniversary of an imperfect constitution drafted by imperfect men is well worth celebrating

Canada Day, like most other days it seems, comes at a bad time this year. A time when symbols of the history ― be they flags, monuments, names of buildings ― are objects of suspicion at best, and not infrequently unqualified vitriol, seems ill-suited to a celebration of what is now more than a sesquicentennial constitution. A constitution that is stubbornly monarchical in form, politically incorrect in wording, and dependent for its existence, livelihood, and amendment on old-fashioned procedures of parliamentary democracy rather than on heady revolutionary movements.

But we do not get to choose anniversaries, and perhaps this is a useful reminder that we do not get to choose everything, that there can be no such thing as a tabula rasa, and that demands for one can only be the products of ignorance or bad faith. This is not an apology for conservatism. As I have said before, I am no no conservative. Much in the world, and in Canada, should change. But the idea that everything can change, and that everything can be just as we ― whoever “we” are ― wish it to be, is unserious; indeed it is perhaps the nec plus ultra of solipsism.

The framers of our constitution understood this, and the constitution’s existence is proof of this, as of their wisdom and humility more generally. They were no doubt flawed in various ways, as men always were, still are, and ever will be. And in some ways we can, legitimately I hope, say that we are better than they. But we are certainly no better, on the whole, if we do not practice the virtues that were theirs: humility, as I have already said, and openness to compromise; magnanimity and willingness to live and let live; above all, perhaps, determination to hope for the future more than to dwell on the past.

Let George Brown’s words, spoken on February 8, 1865, during the Confederation debates, be our inspiration in this time of acute awareness of the imperfections of our institutions and the world around us:

No constitution ever framed was without defect; no act of human wisdom was ever free from imperfection; no amount of talent and wisdom and integrity combined in preparing such a scheme could have placed it beyond the reach of criticism. And the framers of this scheme had immense special difficulties to overcome. We had the prejudices of race and language and religion to deal with; and we had to encounter all the rivalries of trade and commerce, and all the jealousies of diversified local interests. To assert, then, that our scheme is without fault, would be folly.

It was necessarily the work of concession; not one of the thirty-three framers but had, on some points, to yield his opinions; and, for myself, I freely admit that I struggled earnestly, for days together, to have portions of the scheme amended. But, Mr. Speaker, admitting all this—admitting all the difficulties that beset us—admitting frankly that defects in the measure exist …  I believe it will accomplish all, and more than all, that we, … ever hoped to see accomplished. 

Canada itself stands as the greatest monument to these framers, and they could wish for no better. We are lucky to have it as their bequest. We can and must improve it, but today, of all days, we can and must simply be grateful for it. Happy Canada Day!

Expertise in Pandemic Life

 

With the COVID-19 pandemic in full swing, many (for example, Phil Lagasse) have written about the role of experts in public life. The controversy seems to centre around a few points of contention: (1) the degree to which quintessentially political decisions should depend on expert guidance (2) the degree to which the public can and should criticize experts in the midst of a public health dilemma; and (3) the degree to which politicians should or do use experts as the public face of political initiatives.

COVID-19 is an apt phenomenon through which to analyze the role of experts in public life. The pandemic is a health crisis at its core, which invites the contribution of public health officials, doctors, and other experts. At the same time, the health crisis is interwoven with decisions of a political nature: what sorts of programs will best ameliorate the economic strife that many are facing, when and how to “re-open” the economy, and what are the rules that should govern how people interact with one another during the pandemic? In turn, those questions raise this one: what is the proper province of the experts?

Finding this line is no easy task.  But there are, at the very least, a number of important considerations we should keep in mind as we try to find the proper approach to dealing with expertise in public life.

First, we should remember that speaking generally of expertise can belie the complications associated with applying expertise to particular problems. That is, we have to be clear about what sort of expertise we are speaking about. Expertise in public health or epidemiology is not expertise in public policy or program delivery and evaluation. We are familiar with this phenomenon in the law of judicial review. For some time, the Supreme Court presumed that administrative decision-makers in government were “experts” on all matters that came before them (see Edmonton East). But this was always a logically faulty assumption. There was never any evidence offered that experts in government policy—for example, in deciding whether someone is eligible for a certain benefit—ever translated into, say, legal expertise in interpreting statutes or the Constitution. So we must be clear about what sort of “expertise” we are speaking of when we judge the role of experts. Usually, it is not expertise in all things; but rather, it is expertise in some narrow, technical area. And so long as the expert remains confined to that specialized area, there is no reason to worry about over-extending expertise as a concept.

This is not to undermine the importance of expertise in technical areas. Expertise in epidemiology, it turns out, is incredibly important at this time. But once we have narrowed down the scope of an expert’s particular knowledge, it becomes incumbent on the expert to demonstrate that her expertise somehow translates into some other field.

Secondly, and relatedly, using experts to make judgments that affect all of society could lead to certain pathologies. I am often reminded, these days, of Harold Laski’s famous piece “The Limitations of the Expert” (see also Professor Daly’s post here). In the piece, Laski outlines a number of pathologies associated with expertise, all of which are relevant today. For one, experts, even in their own fields, may “tend to neglect all evidence which does not come from those who belong to their own ranks” [4]. More generally, in relation to other fields, experts cannot claim finality for their views because “[e]very expert’s conclusion is a philosophy of the second best until it has been examined in terms of a scheme of values not special to the subject matter of which he is an exponent” [6].  That is, expertise itself in a technical area cannot be the sole means by which social problems are solved, particularly problems that are evasive of empirical analysis. Sometimes—most times—political judgment about social values or norms is required to round out an expert’s rather narrow or technical focus.

Deeper pathologies that affect the fundamental values of our constitutional order may run together with expertise. In an interesting study of the nature of expertise in decision-making, Sidney Shapiro argues: “A central reason why critical inquiry over expert decisions is necessary is that the expert rarely factors democratic liberal values into her decisions. Expertise tends to be narrowly focused and highly specialized, and the expert does not make her judgments in light of democratic liberal values” [1013].  Put differently, experts can tend to focus on their own narrow area of expertise without considering broader social norms or legal values. Health officials may suggest a particular response that maximizes health outcomes, but that does not take into account other constitutional or legal values. The two are not necessarily co-extensive, given the constitutional challenges that exist in respect of the COVID-19 response.

Third, the public has a role in evaluating the evidence, justifications, and reasoning underlying expert decisions. As Shapiro aptly notes, some “[d]ecisions within government institutions often occur within the shadows, concealed from public view” [1015]. This reality has two takeaways. First, experts should not be considered to be cloistered servants away from public scrutiny. If experts are indeed central to decision-making, those responsible for decisions should offer the public a chance to scrutinize the assumptions and reasoning underlying particular decisions. This is all a function of the theory, endorsed in Vavilov, of a “culture of justification” for administrative decision-makers in which the legitimacy of a particular decision depends on the way in which it is justified to the public. Secondly, to this end, the public should not shy away from criticizing the approach of experts when it does not jibe with common sense or experience. The public can legitimately ask, through their representatives, whether the World Health Organization adequately discharged its mandate in protecting the public; whether politicians were right to not close the border at the outset, based on expert judgment; and whether Dr. Theresa Tam’s about-face on masks was justified. These are all areas in which the public can play a role.

Finally, overreliance or trust in experts risks deflecting political responsibility.  This is a point made by Lagasse in his piece. In our system, the COVID response will be judged in political terms by the electorate at the next election(s). But if politicians stand behind experts, allowing them full rein to craft policy (and/or take responsibility for it), there is a risk that this responsibility can be deflected onto the experts. This is a worry that should be constantly guarded against. As Laski notes, experts should be on tap, but not on top. Putting them on top—allowing them to lead the charge, rather than take an assisting role in the public health crisis—undermines democratic accountability.

These are some rough-and-ready considerations to keep in mind as we think through the role of experts in this public health crisis.

 

 

 

Common Good and Evil

Removing constitutional obstacles to power in the name of the common good is a dangerous, delusional idea

Last month, I wrote about what I termed “right-wing collectivism“, an emerging political doctrine that blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism. Two texts published last week have prompted me to return to this subject: Adrian Vermeule’s instantly-notorious essay in The Atlantic urging a “robust, substantively conservative approach to constitutional law and interpretation”, and Thomas Falcone’s guest post on this blog defending right-wing collectivism against my criticisms. Between them, they show this ideology’s incipient authoritarianism and incompatibility with any genuine belief in human dignity, freedom, and the Rule of Law.

Before proceeding further, I should note that one reaction people have had to Professor Vermeule’s argument has been to wonder whether he is simply trolling everyone. Sarah Isgur made this case quite forcefully on the Advisory Opinions podcast, for instance. And certainly his “response” to criticism of his article, over at Mirror of Justice, is trollish. But, as David French argued on Advisory Opinions, Professor Vermeule’s argument reflects a real, if eccentric, current of thought on the political right. Randy Barnett, in his reply to Professor Vermeule, also worries about “a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists … disappointed in the results they are getting from a ‘conservative’ judiciary” in the United States. I too will treat the arguments of Professor Vermeule and Mr. Falcone seriously; all the more so since the rhetoric of combating epidemics of various ills, which they both employ, is, as Anne Appelbaum points out, already being used by the Hungarian dictatorship ― much admired, as Damon Linker has observed, on among American right-wing collectivists.


Professor Vermeule’s argument is, on its face, about constitutional interpretation. But he makes it clear from the outset that constitutional doctrine is, for him, only a tool in the service of politics. Addressing conservatives, he argues that they should give up on originalism, which many have supported in recent decades, because it has become “an obstacle” to the promotion of “strong rule in the interest of attaining the common good”. Mr. Falcone too defends, if less articulately, an activist government acting, supposedly, in the service of “the highest good”.

What, then, is the “common good”, the banner under which Professor Vermeule wants to make a stand against and defeat what he says as “the relentless expansion of individualistic autonomy”? Generally speaking, it consists in

respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.

In terms of substantive policies, the common good involves “cop[ing] with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social”. It means “protect[ing] the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events”, “from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment”. It also means and “enforcing duties of community and solidarity in the use and distribution of resources”, and empowering “[u]nions, guilds and crafts, cities and localities, … as will the traditional family”. 

Mr. Falcone too suggests that “when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family”. Like Professor Vermeule, he abhors the idea that the state ought to be impartial as between competing conceptions of the good life, illustrating it with the example of a “state … ‘neutral’ as to whether people choose have [sic] jobs or sit around smoking cannabis”, which he claims “would be nonsensical to the average person on the street”.

Professor Vermeule outlines a fairly detailed agenda for constitutional law, put in the service of the common good, so understood. Its “main aim” would be “certainly not to maximize individual autonomy or to minimize the abuse of power” (an idea that Professor Vermeule declares “incoherent”). Mr. Falcone does not provide detailed prescriptions for the law, but he similarly rails against the idea, which he attributes to me (only half-correctly) “that power itself is an evil and thus there should be no power”. Professor Vermeule argues that, rather than limiting power, constitutional law must “ensure that the ruler has the power needed to rule well”. So too Mr. Falcone is adamant that “power is real and always will be”. The question is who wields it, and against whom.

Indeed, the ruler needs to be able to exercise this power

for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

To achieve this, constitutional language can be repurposed and read so as to suit the new agenda. More importantly, constitutional doctrine should be built not on textual provisions, but on insights into “the general structure of the constitutional order and in the nature and purposes of government”. And so, much of the existing constitutional jurisprudence ― in areas such as “free speech, abortion, sexual liberties, and related matters”, as well as “property rights and economic rights” ― will be “vulnerable”, “have to go”, “fall under the ax”, or indeed “be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after”. (This latter sentence is reserved for “[t]he claim, from the notorious joint opinion in Planned Parenthood v Casey, that each individual may ‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life'”.)

This will enable government “to protect the public’s health and well-being … even when doing so requires overriding the selfish claims of individuals to private ‘rights'”.  Mr. Falcone echoes Professor Vermeule, denouncing what he describes as libertarians’ ” religious devotion of individual preference maximization and” desire to “ruthlessly supress [sic] any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person”.


As noted at the outset, Professor Vermeule and Mr. Falcone are defending authoritarianism against the claims of freedom and the Rule of Law. They think that the government can identify moral objectives that deserve to be pursued, and the citizens ― or rather the subjects ― have no moral claim against conscription into this pursuit. At best, those who disagree with the objectives or with being made to serve them will come to see the error of their ways, as Professor Vermeule hopes. But if not they will simply be silenced. After all, politics is nothing more than a power struggle; to limit power is a fool’s hope ― the wise man knows that he must put himself into a position to exercise it. These disciples of Saruman are wrong at every step in their reasoning.

How are the governments to decide on their definitions of the common good, on the morality they will legislate? Professor Vermeule is coy about this ― in his essay in The Atlantic. But, as Professor Barnett notes, from his other writings, we know that he makes “an argument for the temporal power of the state to be subordinated to the spiritual power of the [Catholic] Church” (emphasis Professor Barnett’s). Mr. Falcone’s position, as best I can tell, is that moral the appropriate moral values are already widely shared. Now, these two are obviously at odds with one another: it is quite clear that, to the extent that Americans or Canadians share values, these values are certainly not those of the Vatican. This makes Professor Vermeule’s position all the more remarkable ― his understanding of the common good is rejected by an overwhelming majority of the people whose common good it purports to be. It can only be forced on them by a ruthless dictatorship. But Mr. Falcone’s position is no more attractive. If Canadians already agree on the importance of particular values, what’s stopping them from living accordingly? Why do they need to be coerced by the government into acting in accordance with what are supposedly their beliefs? If people already prefer working to “sit[ting] around smoking cannabis” ― as I agree with Mr. Falcone most probably do ―, then why does the state need to subsidize or force them to do so?

Of course, as Jonah Goldberg points out in a recent episode of his The Remnant podcast, even when people largely agree on values stated in the abstract, as they do on the proverbial motherhood and apple pie, it does not follow that they agree on any particular policies that purport to implement them. To value work may entail the sort of wage-support policies to which Mr. Falcone refers or it may, on the contrary, suggest repealing the minimum wage to avoid pricing people out of the labour market. Similarly, valuing families may well push us towards policies of which right-wing collectivists would disapprove, be they marriage equality that helps people form families in the first place, free trade that leaves more money in families’ pockets, or school choice ― even when it is exercised in favour of schools that transmit decidedly non-conservative values.

But, beyond such policy disagreements, important though they are, understandings of both the common good and of personal morality and the nature of the good life are subject to endless debate. Again, the only way to avoid this is to simply prevent the expression of all but the officially approved views, as Professor Vermeule recognizes on at least some points. If the debate is allowed to continue but the majority is empowered to impose its views on the minority, then, as Professor Barnett explains “[i]n the legislature, might will make right”. And as the price of political defeat is nothing short of one’s annihilation as a morally autonomous individual, prospective losers are unlikely to accept this outcome. As Professor Barnett further writes: “what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?”

This is why state neutrality as between the competing conceptions of the good life is both morally right and good policy. It allows people of divergent views to remain in a political community with one another, combining their efforts for those limited common purposes on which they agree, such as self-defence and the enforcement of a limited subset of universal rights, notably life, liberty, and property through of framework of stable and general laws. This framework allows individuals and freely-formed associations ― although it should certainly not allow coercive “[u]nions [and] guilds” ― to pursue their moral aims, including charitable and benevolent ones, with minimal interference on the part of the state. A liberal society is not one of “atomized” individuals with no ties to one another; but the ties that exist in it are a web spun by individuals themselves, rather than a chain forged by the state.

But is neutrality simply a delusion, as Professor Vermeule and Mr. Falcone both contend? In a sense, of course, they have a point. Not all law is based in morality ― as Lon Fuller explained, there is a very real element of fiat in law (he spoke of the common law, but the same goes for statute), in addition to reason or morality. But, to be sure, the basic norms of criminal law, and arguably contract, tort, and property law too, have moral foundations ― notably those universal and widely agreed-upon rights. Yet there is a fundamental difference between this sort of background law and legislation enacted for “the promotion of morality”, as Professor Vermeule puts it. The former, even if it has moral underpinnings, leaves individuals almost entirely free to choose the purposes to which they want to devote their lives and largely, although not fully, free to choose the means by which they pursue their purposes. The latter doesn’t ― its whole point is to shape and limit both the ends and the means available to individuals.

A related point is that neutrality as between conceptions of the good life is not a cover for the enforcement of a progressive moral orthodoxy as Mr. Falcone, in particular, claims, with his bizarre insistence that libertarians “will ruthlessly suppress” conservative ideas. (I would have thought that, if not my outspoken advocacy for freedom of expression and conscience ― including for the benefit of conservatives whom I personally find bigoted, like the Trinity Western University ― then at least the fact that Mr. Falcone is able to publish such a claim on the blog that I founded should be proof enough that this just isn’t so.) A neutral state knows and accepts that not all individuals, families, and communities will orient their lives towards self-actualization, let alone self-indulgence. Some will devote themselves to religion or to community; some may reject the value of autonomy and extol obedience. The neutral state faces some difficult questions at the margins ― notably about the limits, if any, to the capacity of such individuals, families, and communities to shape and control the lives of their children. But there is nothing paradoxical about, at least, a very strong presumption that adults get to shape their lives in ways they choose, regardless of official approval. Libertarianism is a philosophy of politics and government, not an ethical programme ― and it’s a philosophy of politics whose point is to reject the imposition of ethical programmes by the government.

Perhaps the belief that a libertarian or classically liberal neutral state will in fact impose its own values and ideology on dissenters is due to a confusion between liberalism and a progressivism that has sometimes borrowed its name but consistently rejected its ideals. This progressivism, which would impose its beliefs ― originally technocratic with an egalitarian or at least populist flavouring, more recently egalitarian with a technocratic or at least pseudoscientific streak ― is just another version of collectivism. Indeed, the right-wing collectivism promoted by Professor Vermeule and Mr. Falcone, with its deep distrust of free markets (whether in goods, services, labour, or capital) and, apparently, a rather Marxist belief in “the primacy of production over consumption”, to use Mr. Falcone’s words, is not so different from its left-wing cousin.

But the other apparent explanation is that ― once again similarly to left-wing collectivists, at least those of the Leninist persuasion ― right-wing collectivists have come to believe that “who, whom?” is the central question of politics. That is to say, they believe that politics is a race to seize power and use it to silence or eliminate opponents. If you don’t do it, then someone else will do it to you. (This strikes me, if I may say so despite not being Christian, as a rather odd view for people who supposedly believe in turning the other cheek to embrace, but what do I know?) Hence their insistence that limiting power is an absurd or pernicious idea, an insistence whose vehemence reminds me Bulgakov’s Pilate, hysterically yelling, in response to Yeshua’s statement that all power is violence and will one day vanish, that “[t]here never has been, is not, and never will be any power in this world greater or better for people than the power of the emperor Tiberius!” Hence also their rejection of or at least desire to severely curtail constitutional rights; hence their attacks even on civility in argument.

To my mind, this is a wrong and pernicious ― indeed, as Mr. Goldberg suggested, a borderline evil ― way of looking at politics. This is partly because no one is entitled to be the “who” in Lenin’s question, and partly on the prudential grounds summarized by Professor Barnett. But this is also because, as longtime readers will recall me insisting in a series of posts, power corrupts. Power is addictive, and character can only slow down, but not prevent the poisoning of a person’s heart by its exercise; power breeds fear and, as Yeshua said, violence; it also begets lies; it encourages people to cut moral corners, not asking themselves difficult questions; and it apparently damages the very brains of those unfortunate enough to exercise it. It may be that Yeshua was wrong and Pilate right, and that “the kingdom of truth and justice” where power is not needed “will never come”. But that should not stop us from acknowledging that power is an evil, if perhaps an unavoidable and even necessary one, and from recognizing that power is to be distrusted, not celebrated.

From this recognition there should proceed, as I repeatedly insisted in my posts on the corrupting effects of power, a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

This project of Enlightenment constiutionalism includes, as I have argued in my comment on Professor Waldron’s article, entrenched and judicially enforceable constitutions, with their rules on federal division of powers and on individual rights. More specifically, I would argue that it must include originalism, because originalism gives such constitutions real bite ― it creates at least the possibility, although not the certainty, that they will be enforced consistently, rather than according to the subjective and mutable views of the judges who happen to be entrusted with enforcement from time to time. The alternative, “living constitutionalist” approach, which authorizes judges to re-write the constitution does not so much limit power as transfer it to the judiciary. While this may produce results that align with a liberal theory of good outcomes, this is a failure of the power-limiting Enlightenment constitutionalism project. Thus, contrary to Professor Vermeule’s claim, originalism isn’t just a rhetorical device or a rallying banner for legal conservatives, but a legal technique which, as part of the broader toolkit of the Rule of Law, all those who rightly want power to be constrained, be they conservatives, liberals, or social-democrats, should embrace.


Right-wing collectivism ― even when it tries to make itself palatable by adopting the rhetoric of the “common good” ― is an ideology of almost unfathomable hubris. Its proponents imagine themselves to be possessed of great truths and entitled to impose these truths, at gunpoint, on those who do not agree with them. They imagine that the lessons of history ― about the bitter strife that any such attempts engender, about the misery that their quasi-socialist policies always produce ― are not applicable to them. They imagine, above all, that they are immune to the corrupting effects of power. They wrong, indeed delusional. In its embrace of unfettered power, above all, their view of the common good is a recipe for untold evil.

None of that tells us much about how we, individually and within our families and freely chosen associations and networks, should live our lives. To repeat, libertarianism or liberalism are political philosophies, not personal ethics. In a very real sense, political philosophy is of secondary importance; getting it right can do no more than leave us free to get on with the stuff that really matters. But, as Mr. Goldberg argues, it is very important not to confuse these two realms. The government cannot love us (unless, of course, it is the government of Oceania). It cannot provide us with Dworkinian “concern and respect”. Right-wing collectivists are dangerously wrong to pretend otherwise.

Can We Be Friends?: A Conservative Reply to Leonid Sirota’s “Refusionism”

This post is written by Thomas Falcone

I was surprised, if a little taken aback, by Leonid Sirota’s recent declaration on Double Aspect that he is opposed to co-operation with conservatives whom he deems insufficiently committed to a rigid Hayekian philosophy. The reason for my surprise lay not in Sirota’s ideology laid bare – he is commendably transparent about his public philosophy – but more to the creeping suspicion I had that I may have played a small part in inspiring his writing.

Sirota mentions “conversations” he engaged in at the recent Runnymede Society Law and Freedom Conference in Toronto as prompting his exposition of the reason why collaboration with conservatives is indefensible. Now, Sirota is a bit of a rock star at any Runnymede Society event – and rightfully so. His contributions to Canadian jurisprudential thought surely vault him into that vogue category of “thought leader.” I myself have plastered Double Aspect articles penned by him onto slides I’ve used in graduate seminars. Sirota’s leading ideas on originalism in a Canada are extremely impressive, and (as I have told him myself!) I am mostly in firm agreement with his opinions on the administrative state.

But I am compelled to respond to his call for libertarians to reject “refusionism”, which is to say his belief that we cannot be friends, let alone political allies. Perhaps he is right.


It is unfortunate that in Sirota’s attempt to describe what he calls “right-wing collectivism” he doesn’t bother to engage with any of the thinkers he finds so frightening. To be fair, however, the very nature of conservatism makes it difficult to attribute unifying policies or ideas that form a singular coherence. Oakeshott’s old adage that conservatism “is to prefer the familiar to the unknown, to prefer the tried to the untried” is helpful only insofar as it helps to explain that what a conservatism will stand for, or against, or agree to over time and after collective consideration, will vary in different places and amongst different peoples. Roger Scuton’s refrain that the task of a conservative is to assure people that their prejudices (properly understood as a person’s gut feeling) are justified is thus perhaps more helpful than Oakeshott’s old formulation.

In a Canadian context, Ben Woodfinden’s recent long essay in C2C Journal on Red Toryism is surely the closest thing we have to a contemporary “manifesto” of the sort of reform conservatism loosely associated with the broader movement Sirota wants to pre-emptively divorce himself from. But Sirota is right that conservatives ought properly to understand the goal of politics as being attached to the promotion of the highest good. This isn’t nearly as scary as he makes it out to be.

Take the institution of private property, for instance. Conservatives rightly commit themselves to the steadfast protection of this institution. But why is private property so important? Surely it cannot be a sacrosanct institution in-and-of-itself, despite idolatrous libertarian suggestions that the primacy of private property will result in an almost supernatural “spontaneous” right ordering of society. We can find a hint of why conservatism is associated with this institution in Scruton’s invaluable The Meaning of Conservatism:

“Home is the place where private property accumulates, and so overreaches itself, becoming transformed into something shared. There is no contract of distribution: sharing is simply the essence of family life. Here everything important is ‘ours’. Private property is added to, and reinforces, the primary social relation. It is for some such reason that conservatives have seen the family and private property as institutions which stand or fall together.”

Sirota’s biblical pronouncements of Hayekian “warnings” to the contrary, I would submit rather confidently that the vast majority of Canadians – and surely universally conservatives! – would agree on a general scale that the family is an immutable social good, and ought to be defended as the primary organizing unit of our society. The rather modest suggestion that I would posit to conservatives is that when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family. Devin Drover has proposed publicly-funded therapy for families to combat the mental health crisis plaguing our society. US Senator Josh Hawley has proposed cash subsidies to families as emergency relief in response to the Chinese coronavirus pandemic.

Surely another commonly held value amongst Canadians is that it is better to work than to be idle. Having a job ties us to our community, provides us with income, and fills us with a sense of purpose. The notion that the state ought to be “neutral” as to whether people choose have jobs or sit around smoking cannabis would be nonsensical to the average person on the street. But that is precisely the Hayekian proposition Sirota suggests is “the philosophically and morally right position”, whereby individuals are the sole arbiters of their own ends. It is also a position completely alien to a conservative to whom work is fundamental good.

Recognition of the importance of work – and, indeed, the primacy of production over consumption (another value Sirota rallies against in his piece) – is central to Oren Cass’ The Once and Future Worker. And yet Cass’ proposed policy response to our society’s moral devaluation of work is, characteristic for a conservative, quite modest. He proposes a direct wage subsidy to not only make work more monetarily valuable but also signal the state’s – and thus our society’s – value of work. From an excerpt of Cass’ book in The American Interest:

“The subsidy would be calculated relative to a target wage of, say, $15 per hour and make up half the difference—so someone earning a market wage of $9 per hour would receive an additional $3 per hour. Such a subsidy would have two major effects: first, a substantial raise for low-wage workers, making each hour worked more valuable and yielding more take-home pay; second, encouragement for less-skilled workers to take that initial step into the workforce and for employers to offer such jobs.”

My point here is not to provide a laundry list of bold policy ideas that combat the scourges of family decline, widespread opioid misuse, loneliness and social isolation, and widespread disengagement of young men from the workforce. My point, rather, is to suggest that these are good and fundamentally conservative ideas. They are also not the stuff of totalitarian nightmares as Sirota will have us believe.


Finally, I feel compelled to address Sirota’s concluding appeal to the Book of Hayek. Here he suggests that power itself is an evil and thus there should be no power. This is untenable and flies in the face of our contemporary political reality. Harvard law professor Adrian Vermuele has best expounded on the internal contradictions at the core of Sirota’s philosophy by coining the phrase “the liturgy of liberalism.” How is it that liberalism, supposedly so profoundly committed to principles of freedom and liberty, can so quickly turn to repress any intellectual heterodoxy? Vermuele’s work is profound and complex, but the basic problem is that a political philosophy underpinned by nothing more than the idea of “freedom” will forever look for new oppressions to dismantle.

And herein lies the crux of my departure with Sirota: while he suggests conservatism is the flip-side to the woke-ism phenomenon, it is in fact libertarianism that is a not-so-distant cousin of SJWism. Both are committed to a religious devotion of individual preference maximization and will ruthlessly supress any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person. Power is real and always will be – and as US Attorney General Bill Barr has noted, it is currently being deployed by left-leaning liberals against conservatives. I doubt libertarians will be spared.

This all bodes poorly, perhaps, for the future of a long-term political partnership with Sirota. But it need not foreshadow the demise of any would-be friendship. To the contrary, I am confident that right-leaning politics would benefit mightily from a continued dialogue around these difficult issues – especially in these difficult times. He is also, as I mentioned, a brilliant legal thinker. The reality is also that I know libertarians in 2020 are unlikely to try to “cancel” or “deplatform” me and I would never utilize such tactics against a libertarian. The same cannot be said for progressives. This may be a thin basis for continued political co-operation but the stakes are too high to let our disagreements overwhelm us.

 

Thomas Falcone is an LLM candidate at the University of British Columbia Peter A. Allard School of Law. He holds a BA in philosophy and political science, an MA in political science, and an LLB from the University of London. He is co-president of the UBC Runnymede Society chapter. You can follow him on Twitter @thomas_falcone.

Refusionism

Conservatism is, once again, becoming a form of right-wing collectivism. Classical liberals and libertarians should stay away.

It’s not exactly a secret that classical liberals and libertarians are not very numerous. Indeed, in some quarters at least, it is our existence that has come as a surprise for some time now, and in the last few days it has been fashionable to claim that “There Are No Libertarians in an Epidemic“. In North America (and elsewhere) political parties that proclaim themselves libertarian tend to be minuscule and ineffective, even in comparison with the already small number of people who are at least broadly sympathetic with libertarian or classical liberal ideas. So it is unsurprising that, for decades now, the approach of many libertarians in the United States who have been interested in obtaining measurable political success has been to embrace “fusionism“: a convergence, if not quite literally a fusion, of ideology and political action with conservatives sympathetic to mostly free markets and to a considerable if insufficient measure of individual liberty and to the Rule of Law.

However, the nature of American ― and perhaps also Canadian ― conservatism has been changing in the last few years. If Donald Trump is the standard-bearer of an ideology, this ideology has little in common with that of William F. Buckley Jr., Barry Goldwater, or Ronald Reagan. Libertarians and classical liberals must ask themselves whether fusionism, assuming it was a defensible posture in the past, is still one now. Some conversations at the recent Runnymede Society Conference, in which I was fortunate to participate, and thereafter have prompted me to explain why I think that it is not.


Let me begin by describing what I take to be, in broad outline, the sort of conservatism with which I want to have no truck. This is no easy task, despite the proliferation of manifestos in the United States. For one thing, I have to admit that I do not keep track of them all. For another, they do not necessarily agree with one another ― that’s the point of having multiple manifestos. Besides, their authors and adherents are getting no less adept than social justice warriors at deploying what Scott Alexander once described as “motte-and-bailey” rhetorical tactics: switching between expansive-but-scary and banal-but-unobjectionable versions of their claims as suits the circumstances. More fundamentally, as Jonah Goldberg observed in a recent episode of The Remnant podcast, it seems to some substantial large extent to be reverse-engineered to justify the policies if not also the behaviour of Mr. Trump, and may yet be discarded once his political career ends.

That said, I am willing to believe that more than a few of the manifesto-writers are sincere, or will come to believe their own hype. Moreover, there is ― as I have come to realize ― a Canadian version of this ideology, presumably less beholden to Mr. Trump, but also less vocal and so, if anything, even more difficult to pin down. Still, I think one can identify three main themes in this incarnation of conservatism, and they are the ones I shall focus on.

First, there is a belief ― held especially by the Catholic, but perhaps more broadly by the religious, supporters of this doctrine ― in using the state to advance and enforce a conception of the greater good, or indeed “the highest good”. On this view, the relative neutrality of the state as between competing conceptions of the good life, or the state’s tolerance of people who drift along without such a conception are grievously wrong. The state must identify, and identify with, a particular understanding of how individuals, families, and communities ought to live, and incentivize, perhaps force, them to live in this way. The Catholic supporters of this view would, of course, wish to see the state embrace the teachings of the Catholic Church as to what the good life is like (a view known as Catholic integralism), but I suppose there are other possibilities in this regard.

Second, to a greater or lesser extent, this doctrine rejects free markets. Some of its supporters identify as anti-market; others may adopt an attitude that’s more reminiscent of Elizabeth Warren’s: ostensibly pro-market, but in reality deeply suspicious of any economic decisions people might make on their own, without the state’s intervention. (The motte-and-bailey tactic is likely to be deployed here, further confusing matters.) International trade is a particular object of suspicion, but not the only one. At least some large companies, deemed too disruptive or ideologically hostile, are also suspect and potential targets for severe or even destructive regulation. And beyond specific policies, there is a general sense that the state can and should intervene in the economy to ensure acceptable outcomes for favoured groups (such as manufacturing workers) or for a country’s citizens.

And third, there is nationalism and hostility to people and institutions deemed “globalist” in outlook. The interests of a nation ― considered as an aggregate, rather than as a collection of individuals with their own peculiar tastes, preferences, and needs ― must prevail over those of all others. There is also, to a greater or lesser extent, suspicion of or even hostility to immigration, in the name of, as Stephanie Slade (Mr. Goldberg’s interviewee in the podcast linked to above) writes in a recent Reason article, “preserv[ing] … cultural homogeneity (such as it exists) from the diluting influence of foreigners” and embracing “an anti-cosmopolitanism that seeks to throw up barriers to free markets and free trade”.

Having described its main features, I am left with the question of what this doctrine should be called. I initially thought of referring to it as a “new conservatism”, but in reality it is very old ― albeit not in North America. It is, indeed, more or less the same ideology that F.A. Hayek decries in “Why I am Not a Conservative“. A conservative, Hayek writes,

does not object to coercion or arbitrary power so long as it is used for what he regards as the right purposes. … [H]is main hope must be that the wise and the good will rule – not merely by example, as we all must wish, but by authority given to them and enforced by them. Like the socialist, he is less concerned with the problem of how the powers of government should be limited than with that of who wields them; and, like the socialist, he regards himself as entitled to force the value he holds on other people. (4)

Perhaps it is the fusionist conservatism that at least purported to care about limiting government power that was an aberration, and the phenomenon I have been describing is simply conservatism tout court. But another label, which for reasons that I shall presently explain strikes me as appropriate is right-wing collectivism.


Whatever we call it, however, this doctrine is not remotely compatible with a classical liberal or libertarian worldview. The disagreement is not just limited, as it might have been, on some views anyway, between classical liberals and fusionism-era conservatives, to divergent interpretations of rights to which both groups were committed or ideals to which they subscribed. It is fundamental. Indeed, while they might not yet be promising us five-year plans, and will certainly never be singing “The Internationale”, the right-wing collectivists are just the sort of people whom F.A. Hayek had in mind when he dedicated The Road to Serfdom “to socialists of all parties” ― not just of the admittedly socialist ones.

Ms. Slade ― who writes specifically about nationalism but whose argument easily extends to the other aspects of this ideology ― explains that

[t]oday’s nationalists think the … government has an obligation to actively pursue what they call the “national interest”. Any agenda that assumes the existence of such a thing must begin by making a variety of determinations, from who should be allowed to join the polity to whether to privilege the producer’s bottom line over the consumer’s. And in anything short of a monolithic society, that means overriding some individuals’ preferences—and often their right to make choices for themselves.

As with the “national interest”, so with the “highest good” and with the “anti-market” approach to the economy. These beliefs are inherently incompatible with the primacy and autonomy of the individual ― in the individual’s right and ability to arrange his or her priorities and to live in accordance with them rather than with the diktats of authority. They are particular instantiations of collectivism, as Hayek understood it. As I explained here in the first part of my summary of The Road to Serfdom, for Hayek,

[c]ollectivism is the organization of society by the state according to a single blueprint, such that persons and groups, insofar as they are not obliterated in the process, are entirely subordinated to it and made to serve its purposes instead of pursuing their own.

This is what the moralizing, anti-market, nationalist conservatism proposes to do. Just like the old socialists, its proponents think that they not only know what is right, who should trade with whom and at what profit, and which group of people is most deserving, but that they have the authority to organize the world on the basis of this supposed knowledge, or at least that a bare electoral majority would give them such an authority.

The right-wing collectivists are determined to ignore Hayek’s warning that there can be no agreement on a general scale of values ― not even on the highest good, let alone on the second highest, the third highest, etc. ― in a free society, and that any attempt to impose and implement such a hierarchy can only be accomplished by manipulation and force. It must result, ultimately, in the destruction of personal morality itself, because collectivism “does not leave the individual conscience free to apply its own rules and does not even know any general rules which the individual is required or allowed to observe in all circumstances”, (50th Anniversary ed., 161) the state’s fiat being paramount. This might be an ironic result for the more religiously-minded of the new right-wing collectivists, but I’m not sure they will in fact notice the irony.

In “Why I Am Not a Conservative”, Hayek argued that an adherent to conservative ideology “has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions”. (4) This applies also to the right-wing collectivists. Like their forbears, they lack “an intellectual commitment to a type of order in which, even on issues which to one are fundamental, others are allowed to pursue different ends”. (4) And, like socialists, they will come ― at least if they come anywhere near real political power ― to disparage the liberal view that “neither moral nor religious ideals are proper objects of coercion”. (4)


The philosophically and morally right position, now as ever (and yes, the present pandemic notwithstanding, as I shall argue in another post), is liberalism based on individualism, understood, as Hayek explained in The Road to Serfdom, as the “recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions”. (66) This applies in the personal as well as the economic sphere ― the choices of one’s conception of a good life as well as to the choice of one’s trading partners.

The right-wing collectivism being firmly opposed to individualism, so understood, there can be no fusion of liberal or libertarian ideas with it ― no merger, certainly, not a long-term alliance, not even a presumption of co-operation. No doubt there will remain particular issues on which the right-wingers will oppose their fellow collectivists of the left, and classical liberals or libertarians can work with them in these cases. But we should be under no illusions. The right-wing collectivists will not tolerate us if they take power, all the more so since, as Hayek pointed out in The Road to Serfdom, it is “the worst” ― the most ruthless, the most unprincipled ― who “get on top” in any collectivist regime. A tolerant nationalist, “highest-good” conservatism is as much a delusion as democratic socialism.

Hayek’s prescription for our politics remains compelling too. He wrote ― as I put it the second part of my summary of The Road to Serfdom

we need … to accept that ends do not justify all means; that collectivist and a fortiori dictatorial instruments cannot be put in the service of the right ideals, or entrusted to the right people, without either corrupting them or being seized by the more ruthless and corrupt; that “power itself” is “the archdevil”, (159) and that power concentrated in the hands of the state “is … infinitely heightened” (159) in comparison with that wielded by private actors.

If standing on these principles leaves us politically isolated, so be it. There are worse things than political failure. Supporting those who would cheerfully trample on everything one stands for is one of them.

The Road to Serfdom at 75: Part II

Hayek’s proposals for resisting collectivism

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In yesterday’s post and in this one, I reproduce my notes for these talks. Yesterday’s post covered the context in which The Road to Serfdom was written and presented Hayek’s criticism of collectivism. This one reviews some of his proposed solutions. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.


What, then, is the alternative to collectivism? It is, naturally, individualism. Individualism, Hayek insists, is not selfishness. It is, rather, the “recognition of the individual as the ultimate judge of his ends, the belief that as far as possible his own views ought to govern his actions”. (66) The sovereignty of individual belief over individual action is, indeed, a burden as much as a right. Hayek reminds us “[t]hat life and health, beauty and virtue, honor and peace of mind, can often be preserved only at considerable material cost”, and “that we all are sometimes not prepared to make the material sacrifices necessary to protect those higher values”. (107) Individualism insists on “the right of choice, [which] inevitably also carries the risk and the responsibility of that right”. (112) But the alternative to making choices, however unpleasant, for ourselves is that others will make them for us.

Note that, from the insistence on the primacy of the individual follows naturally what Hayek calls “[t]he fundamental principle that in the ordering of our affairs we should make as much use as possible of the spontaneous forces of society, and resort as little as possible to coercion”. (21) Hayek is especially well known for his insistence on the importance of this principle in the economic realm, but it applies much more broadly, as we shall see. Between collectivism and individualism as fundamental organizing principles of society, between “the order governed by the impersonal discipline of the market or that directed by the will of a few individuals”, (219) Hayek sees no middle ground, no possibility of compromise. The methods of collectivism are such that individual liberty cannot be preserved once they are being thoroughly applied, regardless of the purpose to which they are put. From that, it follows “[t]hat democratic socialism, the great utopia of the last few generations, is not only unachievable, but that to strive for it produces something so utterly different that few of those who now wish it would be prepared to accept the consequences”. (36) It is the ruthless, rather than the sincere democrats, who are able and willing to impose their values on the rest of society.

So what is to be done to secure this fundamental principle, and the supremacy of the individual on which it rests? I will focus on Hayek’s suggestions in three areas: the law, not only because this is my area of expertise, but also because Hayek’s first degree was, in fact, in law, and he deserves to be much better appreciated than he is as a legal philosopher; the economy, because after all Hayek is usually thought of as an economist (though he was much more than that), and a Nobel Memorial Prize winning one at that; and the relationship between the individual and society, because, I think that this, if anything, even more important both to Hayek himself, and especially to us as readers in an age where the preoccupations of collectivism are, ostensibly, not only or even primarily, economic.


Let me begin, then, with the law. Hayek sees its function as that of “creating conditions under which the knowledge and initiative of individuals are given the best scope so that they can plan most successfully”. (40; emphasis Hayek’s.) A sound legal framework is what enables competition and markets to serve “as a means of co-ordinating human efforts” (41) and so to provide for the needs and wants of individuals. Hayek is no anarchist; he is not, like Thoreau, saying that that government is best which governs not at all. (Indeed, he claims, in The Road to Serfdom, that “[i]n no system that could be rationally defended would the state just do nothing. An effective competitive system needs an intelligently designed and continuously adjusted legal framework as much as any other.” (45) (In Law, Legislation and Liberty, Hayek’s views on the design of legal frameworks change quite dramatically.)

But government, if it is to respect the ability of individuals to be masters of their own lives, must not only create and sustain a legal framework, but also bind itself by rules. In other words―in words that are of central importance to Hayek―we need the Rule of Law. As Hayek defines this phrase, it “means that government in all its actions is bound by rules fixed and announced beforehand―rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of that knowledge”. (80) In this way, “the government is prevented from stultifying individual efforts by ad hoc action”. (81)

This means that the law must consist of “formal rules which do not aim at the wants and needs of particular people”, (81; emphasis Hayek’s) and are not meant to produce substantive justice, whether defined in terms of equality or of some conception of merit. An attempt to produce rules―whether laws or administrative rulings―aiming at modifying the lot of particular people means that the law “ceases to be a mere instrument to be used by the people and becomes instead an instrument used by the lawgiver upon the people and for his ends”. (85) Laws that are qualified “by reference to what is ‘fair’ or ‘reasonable’”, (86) which can only be applied on a case-by-case basis, are antithetical to the Rule of Law; they result in “increasing arbitrariness and uncertainty of, and consequent disrespect for, the law and the judicature, which in these circumstances could not but become an instrument of policy”. (87)

Relatedly, “the discretion left to the executive organs wielding coercive power should be reduced as much as possible”, (81) which has the added benefit of enabling democratic control over the exercise of this coercive power. Such control, Hayek argues, is only possible when the executive works towards ends determined by a democratic process―that is, ends on which political consensus can exist, rather than being manufactured by the executive itself―and in accordance with standards compliance with which can actually be assessed. In the absence of such standards, there is no Rule of Law, even if the executive is ostensibly authorized to act by vague and broad delegations of power. (91)

It is important to note that Hayek’s rejection of the pursuit of substantive equality by means of laws targeting particular groups or authorizing discretionary administrative decision-making does not proceed from a lack of interest in rights, or indeed equality. On the contrary, he endorses a substantive conception of the Rule of Law, which incorporates “limitations of the powers of legislation [that] imply the recognition of the inalienable right of the individual”. (93) He also warns that state control of the economy will be used “to pursue a policy of ruthless discrimination against national minorities” (96) or against otherwise unpopular groups or persons.


This brings me to the realm of economics. The Road to Serfdom emphasizes the importance of competition between producers―including both firms and workers. Competition is preferable to allocation of resources according to some pre-defined plan, or to the views of government decision-maker, “not only because it is in most circumstances the most efficient method known but even more because it is the only method by which our activities can be adjusted to each other without coercive or arbitrary intervention of authority”. (41) The world is so complex that no planner, whether an individual or a government agency, can embrace the whole picture of the resources available to a society, the needs and desires of individuals, the ideas they are generating.

Being left to pursue their interests and opportunities within a general framework of rules, individuals and firms will create more, not only in terms of material wealth, but also of innovation and opportunity, than if they worked at the direction of government. A bureaucracy attempting to direct them simply could not anticipate what possibilities might arise, and what prospects its orders might foreclose. It is worth pointing out that Hayek sees a role for regulation, whether to protect the rights of workers or even the environment. At least in The Road to Serfdom―his views on this become more uncompromising later―Hayek claims that “preservation of competition [is not] incompatible with an extensive system of social services―so long as the organization of these services is not designed in such a way as to make competition ineffective over wide fields”, (43) and they are, instead “provided for all outside of and supplementary to the market system”. (133)

On the other side―as consumers―a competitive economy leaves us choices that regulation or government control would take away. Hayek explains that “[o]ur freedom of choice in a competitive society rests on the fact that, if one person refuses to satisfy our wishes, we can turn to another. But if we face a monopolist we are at his mercy. And an authority directing the whole economic system would be the most powerful monopolist conceivable.” (102) While the market does not always provide us with as many opportunities as we would like, it at least leave us the choice of how to direct our limited resources, instead of leaving us dependent on others’ views “of what we ought to like or dislike” (103) or how we ought to value the different aims that we would like to pursue. (99) The market does not distribute wealth and resources “according to some absolute and universal standard of right”―which in any case does not exist―, but nor does it make distribution subject to “the will of a few persons”. (112) In a market economy, “who is to get what … depends at least partly on the ability and enterprise of the people concerned and partly on unforeseeable circumstances”. (112-113) 


I turn, finally, to the question of the relationship of the free individual to a free polity. The commitment to individualism imposes significant burdens on both―or rather, on both the individual as a private agent and on the same individual as a citizen and member of a political community.

In politics, we must learn to recognize the reality of the constraints and limitations within which we make our choices: in particular, of economic constraints. We must accept that they are not the product of some sinister will, but of forces no less real for being impersonal. Hayek explains and warns that

[a] complex civilization like ours is necessarily based on the individual’s adjusting himself to changes whose cause and nature he cannot understand: why he should have more or less, why he should have to move to another occupation, why some things he wants should become more difficult to get than others, will always be connected with such a multitude of circumstances that no single mind will be able to grasp them; or, even worse, those affected will put all the blame on an obvious immediate and avoidable cause, while the more complex interrelationships which determine the change remain inevitably hidden from them. (223)

We must understand that while “[i]t may sound noble to say, ‘Damn economics, let us build up a decent world’”, this “is, in fact, merely irresponsible”. (230) The attempt to build up a decent world risks empowering the demagogues offering easy solutions that solve nothing, and destroy what we already have.

To resist them, we need also to accept that ends do not justify all means; that collectivist and a fortiori dictatorial instruments cannot be put in the service of the right ideals, or entrusted to the right people, without either corrupting them or being seized by the more ruthless and corrupt; that “power itself” is “the archdevil”, (159) and that power concentrated in the hands of the state “is … infinitely heightened” (159) in comparison with that wielded by private actors. Once again, the echoes of The Lord of Rings are unmistakable.

We need, moreover, to firmly reject “the presumption of any group of people to claim the right to determine what people ought to think or believe”. (180) Perhaps most controversially for our time, Hayek cautions against a loss of “belief in Western civilization” and “a readiness to break all cultural ties with the past and to stake everything on the success of a particular experiment”. (203) (It would perhaps not be superfluous to note that Hayek would later write an essay called “Why I Am Not a Conservative”; he always considered himself a liberal―in the European, not the American, sense of the word.)

Last but not least, we ought to remember that morality is not measured by the intensity of our “indignation about the inequities of the existing social order” (230) but “by standards [of] individual conduct, and on the seriousness with which we uphold moral principles against the expediencies and exigencies of social machinery”. (231) We are acting morally, in other words, not when we are engaged in virtue-signalling or being “unselfish at someone else’s expense”, or indeed “being unselfish if we have no choice”, (231) but when we choose to put our own self-interest on the line for our principles. On this point, it is worth emphasizing that voting, in particular, is no test of individual morality, since it requires no “sacrifice of those of [those] values [one] rates lower to those [one] puts higher”. (233)

It is in our private conduct that we ought to be unselfish, concerned with equality, and generally do what we think is right. We must recall, Hayek says, that “[r]esponsibility, not to a superior, but to one’s conscience, the awareness of a duty not exacted by compulsion, the necessity to decide which of the things one values are to be sacrificed to others, and to bear the consequences of one’s own decision, are the very essence of any morals which deserve the name”. (231-32) We ought also to practice actively those “individualist virtues” to which I already referred: willingness to stand up for our opinions also ability to respect for those who disagree with us; magnanimity not to punch down and courage not to kiss up; good humour and presumption of good faith. We need, in other―Abraham Lincoln’s―words, to act “with malice toward none, with charity for all, with firmness in the right as God gives us to see the right”. Importantly, Hayek reminds us that “these individualist virtues are at the same time eminently social virtues”, (163) in that they make a society where they are practiced a much more pleasant place to live than one where they are forgotten.

Firmness in the right as we are given to see the right is perhaps an especially important theme for Hayek, though unlike Lincoln, he writes of individual conscience as what gives us to see the right. He insists on the importance of “readiness to do what one thinks right … at the sacrifice of one’s own desires and perhaps in the face of hostile public opinion”, (232) “to back one’s own conviction against a majority”. (233) Related to this is the imperative to hold on to the “old meaning” of the word “truth” as “something to be found, with the individual conscience as the sole arbiter of whether in any particular instance the evidence (or the standing of those proclaiming it) warrants a belief”, (178-79) and not whatever the authorities want us to believe for the sake of maintaining social cohesion.

As an academic, I especially want to highlight the need to stand up to the tendency to put “the disciplines dealing directly with human affairs and therefore most immediately affecting political views, such as history, law, or economics”, in the service of “the vindication of the official views” rather than a search for truth. (176) We must not allow law schools, or history departments, to be made into “factories of the official myths which the rulers use to guide the minds and wills of their subjects”. (176) As Hayek wrote all these years ago, “contempt for intellectual liberty is not a thing which arises only once the totalitarian system is established but one which can be found everywhere among intellectuals who have embraced a collectivist faith”. (179) Runnymede is fighting the good fight in opposition to this contempt.


Let me conclude with a warning and an exhortation. The warning is that reading The Road to Serfdom will not fill you with joy. It is dispiriting to see just how much Hayek’s warnings about the dangers of collectivism are still applicable today, three quarters of a century after he wrote. It would be much easier to think of whatever problems we are facing in our time as temporary aberrations rather than as avatars of a long, perhaps a permanent, dark streak in human nature, which is what their persistence suggests they are.

But the exhortation is to pick up The Road to Serfdom regardless and, having read it, to do what you can to push back against the trends that it describes. As Hayek says, “[i]t is because nearly everybody wants it that we are moving in this direction. There are no objective facts which make it inevitable.” (7) As Gandalf points out in The Lord of the Rings, “all who live to see [evil] times” wish them away, “[b]ut that is not for them to decide. All we have to decide is what to do with the time that is given us.”

The Road to Serfdom at 75: Part I

An appreciation of a life-changing book

In the last 10 days, I gave two talks ― one to the Runnymede Society chapter at the University of Victoria and one at the Université de Sherbrooke ― on Friedrich Hakey’s The Road to Serfdom. In this post and one to follow tomorrow, I reproduce my notes for these talks. The page numbers refer to the 50th Anniversary Edition, which is the one I have in my possession.


Why is F.A. Hayek’s The Road to Serfdom still relevant—and not merely relevant, but compelling—75 years after its publication? It is not obvious that this should be so. It is a book written in a particular historical context, and in response to the intellectual climate of its day. It is a polemic; one is almost tempted to say, a pamphlet―and indeed Hayek himself, in a 1976 preface, refers to The Road to Serfdom in exactly this way, “a pamphlet for the time”. In this, it is unlike Hayek’s more general later works, The Constitution of Liberty and Law, Legislation and Liberty.

And yet, while I wouldn’t say the two later books, especially Constitution, are obscure, it is still The Road to Serfdom that is the iconic one. It has changed the trajectory of my own intellectual life when I read it, probably in third year of law school. (It is one of those things that I find it difficult to remember not knowing, so I don’t recall the exact time or the reasons that made me read it.) And it has had a similar effect on any number of people since its publication. Clearly, it is rather more than a pamphlet, or even just a polemic. It might have began as a pamphlet for the time, but it is, as Milton Friedman described it in a different preface, timeless.

I will venture an explanation for The Road to Serfdom ongoing appeal. I will argue that it targets an evil that is enduring, and that we must confront today, with (almost) as much urgency as Hayek had to when he was writing. The defeat of the particular shapes that this evil took then—a defeat that looks much more provisional and uncertain than it did when I first read the book a dozen years ago—was important in its time. But the evil itself was not put to rest, and perhaps cannot be. It revives, shifts shapes, and must be resisted and repelled again and again, in the time that is given us.

(The reader may have noticed me echoing, and in the last sentence directly quoting from The Lord of the Rings. This is not an accident. I think there are echoes of the Lord of the Rings in The Road to Serfdom, or perhaps I should say it the other way around, since the Road to Serfdom was published much before The Lord of the Rings finally was. I believe that this is not at all surprising, since they were being written at the same time, and their authors saw—and in their very different ways responded—to much the same events, not just those of the then-ongoing war but also those of the previous one, of which both were veterans.)


So let me begin, very briefly, with the immediate context in which Hayek was writing, before moving on to the more timeless elements in The Road to Serfdom. The book was published in 1944, while World War II was ongoing, although it looks forward to the aftermath of an Allied victory. It was written, therefore, while Nazism was at or just past the peak of its power, while Soviet communism was already immensely powerful, and growing more so by the day. But the Western response to the two totalitarian ideologies was strikingly different. Even before war broke out, socialism and communism were prestigious in the way Nazism never quite was in the West; after 1941, communism was the ideology of an ally in that war. And, of course, the Soviet regime had long presented itself as the most steadfast opponent of Nazism, while the Nazis themselves employed much anti-Communist rhetoric (recall that the alliance of Germany, Italy, and Japan was officially called the “Anti-Comintern Pact”). The fashionable view was that fascism was the ultimate, and perhaps inevitable, development of unbridled capitalism, and that embracing socialism or communism was the only way to forestall the advent of fascism.

Hayek saw things differently. For him, Nazism and Socialism were denominations in the same totalitarian church, whose adherents had a great deal in common even if they professed unfailing enmity. (The enmity was, in any case, less constant than advertised: recall Stalin’s pact with Hitler in 1939, leading to their joint invasion and partition of Poland, and much of Eastern Europe.) What Nazism and Socialism had in common was collectivism. Both held that society had to be organized around the supposed interests of particular groups of people, and devoted single-mindedly to the pursuit of some alleged common purpose. Both rejected liberalism and individualism. Nazism simply defined the group that was supposed to define the purposes of political action differently, along racial rather than class lines. Despite this, it had, as the title of one of the chapters of The Road to Serfdom had it, “socialist roots”. Hence Hayek’s dedication of the book “to socialists of all parties”, on the right as well as on the left.


This brings me back to the timeless evil which The Road to Serfdom responds to. On the surface, significant parts of the book rebut arguments that were prevalent in the years preceding its publication about the desirability and feasibility of Soviet-style central economic planning and government ownership of the means of production. And of course advocacy of such policies is now unusual, although I wonder whether the ground is shifting even on this, with the popularity of Bernie Sanders and, even more so, Elizabeth Warren, whose plans for telling companies exactly how to behave, what to sell, and for whose benefit, go nearer the central planning of yore than anything a serious candidate for office has proposed in decades.

But these are issues primarily of form. Look below the surface, and the impulse toward collectivism is no weaker now. What has changed is not its origin or orientation, but its direction. 21st-century collectivists are not only preoccupied with economic inequality, on which they forebears mostly (but not exclusively) focused in Hayek’s time, but (also) with the environment and, especially, with identity―whether it is the identity of groups purportedly defined by gender, race, sexuality, etc., or that of nations.   

What does Hayek mean by collectivism, and why is it, after all, such a bad thing? Collectivism is the organization of society by the state according to a single blueprint, such that persons and groups, insofar as they are not obliterated in the process, are entirely subordinated to it and made to serve its purposes instead of pursuing their own. The attraction of collectivism is that it seems to make possible the realization of purposes on which we might all agree―say, racial or gender equality, or putting an end to global warming, or perhaps something more diffuse, such as simply “the public welfare”―by directing all, or at least some very significant part, of society’s efforts to them.

What’s the problem with this? Collectivists tend to forget that purposes that all appear desirable in the abstract can be in conflict, and that sometimes “any one of them can be achieved only at the sacrifice of others”. (59) If the efforts of society are to be centrally directed by government, a hierarchy of aims will need to be established to determine which will yield to others. Yet where is this hierarchy to come from? Comprehensive agreement on a scale of values does not exist in a free society, where individuals have their own moral scales. The hierarchy of aims must, and can only be, generated by the government; and not by a democratic process, which is bound to reflect the disagreements that exist in society. Indeed, it is precisely the failure of democracy to generate all-encompassing agreement that “makes action for action’s sake the goal. It is then the man or the party who seems strong and resolute enough ‘to get things done’ who exercises the greatest appeal”, (150) and is set up in a position of unaccountable technocrat or dictator, which amounts to more or less the same thing.

As for individuals, if they cannot be expected to agree on a common hierarchy of aims, they must still be made to agree to it. An official dogma, extending not only to values but even to “views about the facts and possibilities on which the particular measures are based” (170), must be spread, by means of relentless propaganda, by twisting the meaning of words, especially of words describing moral and political values, and by resorting to censorship and ultimately force, since dissent compromises the mobilization of society toward the chosen aims. Instead of truth, “[t]he probable effect on the people’s loyalty to the system becomes the only criterion for deciding whether a particular piece of information is to be published or suppressed”. (175-76) And people, like ideas, “more than ever become a mere means, to be used by the authority in the service of such abstractions as the ‘social welfare’ or the ‘good of the community’”. (106) Moreover,

[i]f the ‘community’ or the state are prior to the individual, if they have ends of their own independent of and superior to those of the individuals, only those individuals who work for the same ends can be regarded as members of the community. It is a necessary consequence of this view that a person is respected only as a member of the group, that is, only if and in so far as he works for the recognized common ends, and that he derives his whole dignity only from this membership and not merely from being man. (156)

Note, too, that aims do not exist in the abstract; they are those of individuals, sometimes of groups (that is, of individuals who agree). A hierarchy of aims imposed―ultimately at gunpoint―by the government is also a hierarchy of people. A collectivist government will choose whose interests to favour, and whose to subordinate. It might say it aims at fairness, but it will apply a particular standard of fairness: its own, not one of society at large, since the latter does not actually exist. Indeed,

it is easier for people to agree on a negative program―on the hatred of an enemy, on the envy of those better off―than on any positive task. The contrast between the ‘we’ and the ‘they’, the common fight against those outside the group, seems to be an essential ingredient in any creed which will solidly knit together a group for common action. (153)

Collectivism, whatever its initial aims, tends toward factionalism and nationalism, and this tendency is only exacerbated by “that glorification of power … which profoundly affects the ethical views of all collectivists”. (158)

Ultimately, collectivism is destructive not only of freedom―both political and personal―but of morality itself. A collectivist system “does not leave the individual conscience free to apply its own rules and does not even know any general rules which the individual is required or allowed to observe in all circumstances”, (161) because the needs of the collective―as interpreted, of course, by the political leaders or technocrats purporting to speak on its behalf―are always regarded as more important than individual scruples. Collectivists

lack … the individualist virtues of tolerance and respect for other individuals and their opinions, of independence of mind and … uprightness of character and readiness to defend one’s own convictions against a superior … , of consideration for the weak and infirm, and of that healthy contempt and dislike of power which only an old tradition of personal liberty creates. Deficient they seem also in most of those little yet so important qualities which facilitate the intercourse between men in a free society: kindliness and a sense of humor, personal modesty, and respect for the privacy and belief in the good intentions of one’s neighbor. (163)

In The Road to Serfdom, this is a description of Germans, whom Hayek regards as epitomizing collectivism. But it applies, in our day, just as well to “social justice warriors” as to the supporters of Donald Trump. And it applies with double force to those in positions of political power in either movement, who more than all the others are required to  demonstrate “readiness [to] conform[] to an ever changing set of doctrines” laid down by the leader in the pursuit of his chosen goals (or, in a development Hayek did not anticipate, emerged more or less spontaneously in activist circles), whatever these doctrines may be, and to enforce such conformity on those over whom they rule.


Part II follows.

The Tragedy of Lord Sumption

Thoughts on Lord Sumption’s views on the relationship between law and politics

In my last post, I summarized at length Lord Sumption’s Reith Lectures, delivered earlier this year. As I noted there, Lord Sumption’s views on politics, law, and the relationship between the two are challenging ― especially, but by no means only, to those of us who support judicial review of legislation. Here, I would like to explain why I think there is much truth in what Lord Sumption says, but also to point out the weaknesses and even contradictions in his claims.

By way of reminder, Lord Sumption begins by arguing that the domain of law has been expanding for the last two hundred years, as people have (once again) turned to the state as the provider of physical and economic security and moral certainty. But this expansion has brought with it concerns that the state’s power reaches too far. Representative politics can help mitigate these concerns by generating compromise and accommodation between majorities and minorities. Yet as politics loses its lustre, people turn to law to control the outcomes politics produces. Law promises (and sometimes delivers) principled decision-making, but it does so at the cost of compromise and accommodation and thus, ultimately, legitimacy. The courts end up creating and defining new constraints on politics, and there is little to choose between such constraints being undemocratically imposed in the name of liberalism or of some other ideology. Moreover, in the long run, politics, with its capacity to legitimate limitations on state power provides better security for rights than the law. Yet politics is ailing. Constitutional reform, and especially constitutional entrenchment, will not save it. If democracy is hollowed out, Lord Sumption grimly concludes, we will not notice, “and the fault will be ours”. (V/7; NB: I will use roman numerals to designate the lecture, and arabic ones for the page in the transcript; links to individual transcripts are in the previous post.)


Significant parts of Lord Sumption’s argument run along the lines drawn by Jeremy Waldron, notably in “The Core of the Case against Judicial Review”. The emphasis on the importance of disagreement and the preference for settling disagreement about rights through the political process, in part because it is more egalitarian than adjudication, sound Waldronian. The skepticism about the capacity of judges, or indeed of anyone else, to find out the truth of the matter about moral issues, is Waldronian too. Lord Sumption does not mention Professor Waldron, or indeed any thinker more contemporary that A.V. Dicey, so it’s not quite clear whether how direct Professor Waldron’s influence on him is. However, original or not, these points are important and bear repetition.

Lord Sumption’s critique of the undemocratic character of “dynamic treaties” ― or, I would add, any constitutional documents interpreted as “living instruments” ― builds on these arguments. He focuses on the judicial creation of rights on the basis that “a modern democracy ought to have” (III/3) them ― or, in other words, of what I have been calling “constitutionalism from the cave” ― as qualitatively different from mere application of fixed texts to new facts. Readers will not be surprised to learn that this strikes me as compelling. Lord Sumption’s argument tracks public meaning originalist views, a point to which I will return, but since he does not disclose his influences, I don’t know whether he is at all interested in originalist theory. It is worth noting that, in a later lecture on “Judicial Review and Judicial Supremacy“, Professor Waldron too has focused on living constitutionalism, and specifically the claim that a constitutional court is entitled “to develop new views about (what the court thinks) the constitution ought to have forbidden (though it did not) and to act on these views” (40) as especially problematic.

One additional point on which Lord Sumption echoes that lecture of Professor Waldron is the rejection of comprehensive systems of values as suitable objects for judicial enforcement. Professor Waldron does not want judges to “begin to think of themselves and present themselves as pursuing a coherent program or policy rather just responding to” (27) individual violations of the constitution that happen from time to time. Lord Sumption’s forceful rejection of values systems ― which he equates with one another for this purpose, so that entrenchment and judicial enforcement of a liberal dogma is, in a sense, no different from that of “Islamic political theology or the dictatorship of the proletariat” (IV/4) ― seems to reflect this concern. If asked to take judicial review of legislation as a given, as Professor Waldron does in the “Judicial Supremacy” lecture, Lord Sumption would also urge a piecemeal rather than a systematic approach as the more modest one.


But Lord Sumption’s argument is not simply a reprise of Professor Waldron’s. What makes him interesting, and challenging not just for supporters of judicial review of legislation but also for critics, is that his vision of politics is a gloomy one. Those who have misgivings about judicial review, including Professor Waldron or, to take a couple of Canadian examples, Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench in a lecture on “The Charter and Canada’s New Political Culture” and Joanna Baron and Geoffrey Sigalet in a Policy Options post earlier this year, tend to be fairly optimistic about democratic politics. Professor Waldron, especially in “The Core of the Case”, thinks that democratic majorities will protect rights about as well as courts, although in later work he has recognized that some minorities (such as criminal suspects) might end up being routinely shortchanged by the democratic process. He has also forcefully criticized the views of those who equate the Rule of Law with the protection of property and contract rights and, on this basis, are skeptical of social legislation and the welfare state. Chief Justice Joyal, for his part, has extolled “bold” and

“purposeful” governance … expected to include and achieve … the realization of big and bold federal and provincial objectives [and] to assist in the accommodation and brokering of … diverse and conflicting interests underlying the various societal ills and problems. 

Accommodation and compromise are the best outcomes that Lord Sumption sees democratic politics produce. “Bold” and “purposeful” governance? He seems pretty skeptical. It is not just that he sees and laments the decline in the authority of political institutions ― Chief Justice Joyal saw and lamented that too. More interestingly, I take Lord Sumption to raise the possibility that, even when it functions well, democratic politics is dangerous.

Much of Lord Sumption’s first lecture is devoted to establishing this proposition. Pointing out “rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity” (I/4), as well the voters’ tendency to be “afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with”, (I/6) he seems to echo Lord Acton’s prescient warning, in the Lectures on Modern History, about seeing the “[g]overnment [as] the intellectual guide of the nation, the promoter of wealth, the teacher of knowledge, the guardian of morality, the mainspring of the ascending movement of man”, (289) though again he does not refer to Acton or to any other source. Lord Sumption’s concern at the far-reaching and unrealistic expectations that people have of government and government’s tendency to restrict liberty to try to meet these expectations points to an ineradicable flaw of democracy.

What is more, at times, Lord Sumption seems to accept that certain rights are could appropriately be entrenched beyond the reach of democratic politics. He mentions, repeatedly, rights not to have one’s life, liberty, or property interfered with arbitrarily or without the ability to challenge the interference in court, as well as democratic rights. At other times, admittedly, Lord Sumption seems to say that, in the United Kingdom anyway, an entrenched constitution ― even, it might seem, one limited to protecting these rights, would be inappropriate. This contradiction is never fully resolved, although perhaps what Lord Sumption means is that a narrowly drawn constitution protecting these rights is theoretically desirable, but does not offer sufficient benefits to be worth the dislocation that would occur if it were to be enacted in the UK. Be that as it may, Lord Sumption’s nods in the direction of a limited entrenched constitution and his support for a fairly robust version of the principle of legality ― including in cases like R (Unison) v Lord Chancellor [2017] UKSC 51, which others have criticized as impinging on Parliamentary sovereignty ― suggest concern at what democratic institutions, if left unchecked, might do to important rights and constitutional principles.

This is what prompts me to see Lord Sumption’s vision of law and politics as tragic. He doesn’t have much hope for law, and says we must trust in politics, but his “praise of politics”, to borrow the title of his second lecture, is damningly faint. If all goes as well as it might, he says, we’ll keep muddling through, and not oppress too many people while lurching between overbearing optimism and fretful censoriousness. And perhaps, all will not go so well, although we will not even notice.


Is this the best we can do? I do not want to give quite so easily, and so I would like to try to rescue law, and perhaps, in a way, even politics, from Lord Sumption’s critique. This is almost a matter of necessity: after all, Lord Sumption himself thinks that some measure of entrenchment may well be justified, or at least excusable, and between that and his admonition to avoid dislocating established and functioning constitutional orders, those of us living in polities with entrenched constitutions should probably try to make them work before thinking about abolishing them. Moreover, even if we agree with Lord Sumption that entrenching rights is a bad idea, we still need to think about structural features of constitutions, to which Lord Sumption pays almost no attention. (This is another element of his thinking that he shares with Professor Waldron.) And besides, I am as worried as Lord Sumption by the overbearing, illiberal tendencies of contemporary democracy, and less willing to resign myself to them.

One question that needs to be asked is whether attempts to impose legal constraints on government are necessarily bound to degenerate into living constitutionalist creation of unwarranted constraints by the courts. Lord Sumption seems to think so. He implicitly accepts the living constitutionalist view that constitutional terms such as “due process of law” have no fixed meanings, and that adjudication based on such terms is inevitably going to answer the question not “whether the right exists but whether it ought to exist”. (IV/5) And, to be sure, there is no shortage of living constitutionalists who agree with him, from the hosts of the Stereo Decisis podcast to Supreme Court judges giving constitutional benediction to rights they invent. As I have suggested here,

if constitutional disputes can only be decided by reference to what are political rather than legal considerations, then it is not obvious, as a normative matter, why they should be decided by the courts rather than by political institutions. 

But while Lord Sumption is right about this, I believe he errs in accepting that adjudication of rights issues must devolve into judicial benediction of rights or ― what is equally non-judicial ― dogmatic deference to legislative choices. In many ― I think in most ― cases, an originalist court that seeks to ascertain the public meaning of constitutional texts, and perhaps to engage in good-faith development of constitutional doctrine based on the texts’ original purposes can actually avoid adjudicating primarily on the basis of its normative priors. As William Baude has pointed out, this requires an effort at self-restraint on the court’s part: the court must accept that its first task is to ascertain the meaning of existing law, without rushing to conclude that this meaning is obscure so as to impose its own views on the parties. But I do not think that such an effort is impossible for courts to undertake. Indeed, even that ostensible champion of living constitutionalism, the Supreme Court Canada, already engages in originalist adjudication, admittedly of varying quality, in a non-negligible number of cases, as I have most recently discussed here.

Emphasizing the importance of constrained, originalist constitutional adjudication ― rather than throwing up our hands and conceding that the courts will do what they please with constitutional texts ― is all the more important because it can help resolve not only cases about fundamental rights but also those dealing with structural aspects of constitutions. Lord Sumption says almost nothing about federalism and separation of powers; to me, the way in which he breezes past them in his discussion of the United States is quite disappointing, a rare moment of incuriosity in an otherwise very thoughtful lecture series. Lord Sumption’s preferred understanding of democracy, as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” (III/7) seems to put structural issues front and centre. And given his sharp comments about the pernicious effects of bypassing the usual parliamentary mechanism in favour of a referendum on Brexit, I think he ought at least to give some thought to the question of whether, quite apart from entrenching rights, the decision-making processes of representative democracy may require robust constitutional safeguards against elected officials inclined to sacrifice them for momentary political advantage.

Ultimately, though, I think that Lord Sumption is too quick to reject the desirability of substantive limits on legislation, as well as to ignore the need for structural safeguards. He thinks that it is not a problem that, under the existing UK constitution, “the limits on what Parliament [or legislatures] can do depend on political conventions [that] derive their force from shared political sentiment which would make it politically costly to disregard them”. (V/2) (The situation is the same under the Canadian constitution except with respect to issues on which the Canadian Charter of Rights and Freedoms has something to say.) Yet Lord Sumption gives cogent reasons to think that democratic politics often do not make it costly for Parliament to overreach and overregulate; and, on the contrary, that voters will, in the long run, demand too much conformity and control. These concerns echo those already expressed F.A. Hayek’s, in The Road to Serfdom. They are not new. They should be addressed, if possible, with more than vague hopes of compromise.

Indeed, I also think that Lord Sumption oversells compromise. He is right that one cannot expect to always get what one wants in politics, and that unwillingness to give an inch to partisan opponents one believes to be unprincipled at best, if not outright evil, is a real problem. But surely compromise isn’t valuable on any terms. To say so is only to encourage extremist opening bids by people who will expect us to agree to slightly more moderate versions of their still unreasonable demands in the name of accommodation. (The Québec government’s defence of its anti-religious dress code as moderate is a good example of this.) Compromise is important, but it cannot always be justly expected. As Lord Sumption himself recognizes, there are laws that make civilized coexistence or full membership in a democratic community impossible.


Lord Sumption’s Reith lectures are well worth listening to or reading, and reflecting on. They challenge those of us who support judicial review of legislation with an accessible but powerful restatement of the Waldronian case against that constitutional device and affirmation of the importance of democracy. They challenge Waldronians and other supporters of democratic institutions with a frank and not at all optimistic assessment of these institutions’ output. They are not right about everything ― but, insofar as they are wrong, they are wrong in interesting ways. As I said in introducing my summary of the lectures, I think that incoming law students, in particular, would benefit from engaging with Lord Sumption’s ideas. But so would those with more experience of the law. I am sure I have.