Tag: Hayek

The Disuse of Knowledge in the Administrative State

Regulation is not the right tool for intelligently dealing with complexity

Advocates for the administrative state typically promote it on the basis of its great usefulness in contemporary society. Without the expertise that administrators bring to their work, they say, we could not deal with the complexity of the world around us. Although, in the wake of the Supreme Court’s ruling in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, this is no longer part of the rationale for deference to administrative decision-makers in Canadian law, this view is still widely held by administrative theorists in North America. Indeed it is part of the pro-administrativist critique of Vavilov, for example in a post by Mary Liston over at Administrative Law Matters. But this view is fundamentally wrong, even backwards.

A passage from Matthew Lewans’ book Administrative Law and Judicial Deference captures this traditional view nicely. Compared to the past,

we must tackle a broader array of complex social issues―human rights, immigration, national security, climate change, economic policy, occupational health and safety, public access to health care and education, etc―about which there is deep disagreement. And we cannot hope to address these issues intelligently without harnessing the experience, expertise, and efficiency the modern administrative state provides. (187)

Other pro-administrativists, if they have not themselves written such things, would I think wholeheartedly agree with them. To the extent that I specifically criticize Professor Lewans’ argument, below, it is only in a representative capacity.

One thing to note about this passage, and its innumerable equivalents elsewhere, is that it is not supported by any detailed arguments or evidence. The hopelessness of intelligently dealing with the issues that consume contemporary politics without “harnessing the experience, expertise, and efficiency” of the bureaucracy is simply asserted by writers and taken on faith by readers. But I think we need to query these claims before accepting them, and not because I have watched too much Yes, Minister to have much faith in the experience and expertise, let alone the efficiency, of the administrative state.

More fundamentally, the state ― and especially the administrative state ― often is not merely lousy at addressing complexity intelligently, but actively opposed to doing so. The reason for this is that its laws and regulations, to say nothing of its discretionary rulings, serve to eradicate rather than harness the information needed for intelligent behaviour in a complex world. They give both the rulers who wield them and the citizens who clamour for them the illusion of purposive action and control, while actually preventing the operation of the mechanisms that serve to communicate information about the world much more effectively than laws and regulations ever can: prices and markets.

As F.A. Hayek famously pointed out in “The Use of Knowledge in Society“, there is an enormous amount of information that even the best experts armed with the boundless powers of the modern administrative state cannot acquire: information about the circumstances, needs, and desires of individuals and organizations. This information is unlike the scientific, technical knowledge that experts might be able to centralize in the hands of the bureaucracy. In particular, this local knowledge changes much too quickly to be communicated and assimilated by an authority. As Hayek explains, “the economic problem of society” ― that is, the question of how to use the resources available to us most effectively ― “is mainly one of rapid adaptation to changes in the particular circumstances of time and place”. From this,

it would seem to follow that the ultimate decisions must be left to the people who are familiar with these circumstances, who know directly of the relevant changes and of the resources immediately available to meet them. We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders. 

I would add also that, even if a “central board” could acquire information as fast as individuals and businesses, it could not make new rules to reflect this information fast enough, or consistently with the requirements of the Rule of Law, which include the relative stability of the legal framework.

But how do individuals acquire knowledge which, Hayek insists, even a sophisticated bureaucracy cannot gets its hands on? The answer is, through market prices, which reflect aggregate data about the relative scarcity of goods and services available in a given time and place: “Fundamentally, in a system in which the knowledge of the relevant facts is dispersed among many people” ― which is to say, in any society in which there many people, and especially in complex modern societies to which pro-administrativsts such as Professor Lewans refer, “prices can act to coördinate the separate actions of different people in the same way as subjective values help the individual to coördinate the parts of his plan”.

Hayek gives the example of how, if something people need to produce other things other people need becomes more scarce, such as its price goes up

without an order being issued, without more than perhaps a handful of people knowing the cause, tens of thousands of people whose identity could not be ascertained by months of investigation, are made to use the material or its products more sparingly; i.e., they move in the right direction. 

The right direction, that is, from society’s perspective ― the direction of the society’s overall resources being used more effectively where they are most needed. Hayek pointedly describes the functioning of the price mechanism, its ability to economically and quickly communicate information no bureaucracy could gather “by months of investigation” as a “marvel”. He is right.

But, to repeat, the state all too often prevents this marvel from happening. The state outlaws market transactions, and so prevents the communication of information through market prices, left, right, and centre, and interferes with those transactions it doesn’t outlaw. Ronald Reagan summed up the state’s ― and the statists’ ― thinking: “If it Moves, Tax it. If it Keeps Moving, Regulate it. And if it Stops Moving, Subsidize it.” This is not all the state does, of course. The state, if it functions well, also enables markets by keeping peace, protecting property rights, and enforcing contracts. They state may supplement markets by correcting genuine market failures, though these are rather fewer and further between than statists tend to assume. But there’s no denying that much of what the state does, and especially much of what pro-administrativists ― be they on the political left (as most of them have long tended to be) or on the right (as the followers of Adrian Vermeule and other common good will-to-power conservatives, about whom co-blogger Mark Mancini has written here) consists in overriding, displacing, and even criminalizing markets, and so destroying rather than harnessing information. The state not only is stupid; it makes us less intelligent too.

The administrative state, specifically, is especially guilty of this. To quote Professor Lewans once more ― and again, in a representative capacity ―

There are good reasons why legislatures invest administrative officials with decision-making authority. While a legislative assembly might be able to forge sufficient consensus on broadly worded objectives as a platform for  future action, it might reasonably conclude that interpretive disputes regarding those objectives outstrip the capacity of the legislative process. (199)

To be clear, “interpretive disputes” here are disputes about the specification of these “broad objectives”, as well as the means through which the objectives, so defined, are expected to be achieved. What Professor Lewans is saying is that delegation of power to the administration vastly increases the state’s overall ability to regulate ― that is to say, to override, displace, and criminalize markets. Legislatures might never achieve consensus on the detail of a regulation, and so wouldn’t enact any since they need at least a bare-bones consensus to enact law. But thanks to the dark wonders of delegation, the need for consensus is dispensed with, or at least reduced, and more regulation can be enacted. And of course the administrative state is simply bigger than a legislature, so it has more person-hours to expend on producing ever more regulation. The legislative process ― at least, proper legislative process, not what all too often passes for it ― is also time-consuming, while one of the supposed virtues of the administrative state is its flexibility. Faster regulatory change, while it cannot actually be effective enough to substitute or account for the information transmitted through the price system, is more disruptive to markets.

If we actually want to address the issues that confront complex contemporary societies intelligently, the administrative state is not our friend. More often than not, it serves to reinforce the state’s ability, to say nothing of its resolve, to prevent individuals and businesses from acting intelligently in the face of complexity by eliminating or falsifying the information they need to do so. At best, the administrative state then tries to provide a simulacrum of an intelligent response ― as, for example, we ask bureaucrats to puzzle out who may come to our countries to work based on what they, from their cubicles, deem to be market needs, instead of simply opening the borders and letting employers and potential workers make their own arrangements.

Why, then, are people ― and more and more people, too, as the emergence of right-wing pro-administrativsim shows ― so convinced that the administrative state is necessary? Some, alas, are not especially interested in social problems being solved effectively. They even make a virtue of inefficient institutions, slower economic growth, and more coercion. Such feelings may be especially widespread among the common good will-to-power crowd. But more people, I suspect, simply misunderstand the situation. As Hayek pointed out,

those who clamor for “conscious direction” … cannot believe that anything which has evolved without design (and even without our understanding it) should solve problems which we should not be able to solve consciously.

They think that central direction, which only the state, and specifically the administrative state, can provide is necessary. They are mistaken, and in a way that is the sadder because they unwittingly demand the exact opposite of what they actually hope for.

Mere Liberalism

A response to a common caricature of liberal beliefs

There is a rhetorical trope in contemporary critiques of liberalism and libertarianism, especially those coming from the political right, that holds it for fundamentally flawed because it conceives of individuals as “atomized”, isolated, a- or even anti-social creatures moved by no higher emotion than crass self-interest. We have even hosted one critic who made this argument as a guest on this blog.

A recent post on Law and Liberty, in which Luma Simms “reviews” Ilya Somin’s book Free to Move: Foot Voting, Migration, and Political Freedom, encapsulates this argument very neatly. I put “review” in scare quotes because, as Professor Somin points out, it misrepresents his book. But the exact same caricature is used to attack not only Professor Somin’s work, but liberalism and libertarianism more broadly; nor is it used by Mrs. Simms alone. So I think that a general response is warranted.

Mrs. Simms writes, summarizing the worldview that ― according to her ― underpins Professor Somin’s arguments in favour of greater freedom of movement and of personal choice more generally:

Man is a rational being; his actions are based on individual choice, guided only by reason; his judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture); if he acts with others it is by his choice alone; he must live by his own achievements, for his own happiness and self-interest; he has no moral duty to others. As such, man must have the political freedom to follow his self-interest to achieve his happiness. It is autonomous individualism through and through.

As a summary of the liberal worldview ― and, to repeat, many critics of liberalism use descriptions like this one in just this way ― every one of these statements is grossly exaggerated or outright false.

“Man is a rational being“

Liberalism ― and for that matter conservatism or socialism ― does presuppose a measure of rationality in human beings. There would be no point in advocating for, say, freedom of speech, the Rule of Law, or democracy if human beings weren’t rational in the sense of thinking, making and carrying out plans, responding to incentives, and seeking to act on their (physical and social) environment in ways calculated to produce consequences.

But liberalism doesn’t require or depend on complete rationality. Liberals and libertarians can acknowledge failures of rationality: Bryan Caplan is no less of a libertarian for having explored at length The Myth of the Rational Voter. Liberals and libertarians can recognize that human beings are emotional, too. Love of freedom is an emotion, and no less than love of God or love of hearth and home.

“His actions are based on individual choice, guided only by reason“

As I have just noted, liberals and libertarians know that human beings can emotional or irrational. Needless to say they also know that their choices are constrained and their actions are shaped by the circumstances ― familial, economic, cultural, environmental ― in which they find themselves. Perhaps Mrs. Simms means that liberals want, as a normative matter, to create a state of affairs where humans are free to act exactly as they choose; but they do not. On the contrary, liberals respect property rights and the autonomy of individuals, families, and voluntary associations (including businesses, churches, NGOs, etc.), which means that they will uphold private arrangements that may diminish individuals’ choices.

Now, there are difficult questions that liberals and libertarians can struggle with about private choices that radically deny individual autonomy: self-enslavement is perhaps a silly example best left to philosophy seminars, but, say, parents who refuse to provide a minimum of education or healthcare to their children are a grim reality. But of course liberals recognize that interference with the freedom of some to secure some core of autonomy to others is still interference.

“His judgement must be independent, free of any compulsion (including obligations and constraints that come from family, country, or culture)“

I don’t think that any liberal or libertarian believes this. Yes, liberalism values independent judgment; yes, liberalism wants individuals to be free from legal compulsions of their judgment: hence its insistence on freedoms of conscience, thought, opinion, and so on. If this is what Mrs. Simms derides as liberalism’s rejection of “obligations and constraints that come from … country”, there’s something to the charge. If the critics of liberalism want “country” to introduce indoctrination and state ideology, let them say that clearly; better yet, let them spell out what they are going to indoctrinate us in (beyond platitudes about the common good), and give us a chance to decide whether we want to drink their particular kool-aid.

But as for other kinds of duties and compulsions, not only do liberals not reject them ― on the contrary, leading liberal thinkers have specifically insisted that the point of freedom is to have the ability to do one’s duty, as one sees it. Hence Lord Acton’s definition of “liberty”, in The History of Freedom, as “the assurance that every man will be protected in doing what he believes his duty against the influence of authority and majorities, custom and opinion” (3). Hence Hayek writing, in The Road to Serfdom, 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.

Liberals regard obligations to family and friends, to God if one so believes, and even to country and “culture”, whatever that might be, as matters of conscience. The claim they reject such obligations is preposterous calumny. What they reject is the claim of “authority and majorities, custom and opinion” to interfere with an individual’s conscience to impose obligations of this sort when they are not felt.

“If he acts with others it is by his choice alone“

Again, it’s a bit difficult to say whether this is supposed to represent what liberals believe is the case or what liberals believe ought to be the case. But neither representation is accurate. Liberals neither deny the existence of social ties, such as those of kin, in which individual autonomy is far from complete, nor wish to abolish them. Liberals also do not deny nor, except for anarchist libertarians, wish to rid themselves entirely of collective political action, which is also involuntary as to many individuals who are forced to go along with the decisions of the authorities.

Liberals do want to provide exit opportunities for people who may find themselves bound by social ties that are or become abusive. They also want to limit the ability of majorities to impose on dissidents through the political process. But they want to do these things precisely because they recognize that human beings belong to groups, associations, and communities which they have not freely chosen and because they have no wish to abolish such groups, associations, and communities.

“He must live by his own achievements, for his own happiness and self-interest“

I don’t know many, if any, flesh-and-blood liberals or even libertarians who believe this. It sounds like a paraphrase of Randian objectivism, but I must confess that I’ve never read Rand, so I don’t know if it’s an accurate representation of her views. What I think I can assert with a good deal of confidence is that these views, if indeed she held them, are not at all representative. There just isn’t anything in classical liberalism or (non-Randian?) libertarianism that says that people must be navel-gazers, hedonists, and egotists.

To be sure, liberals acknowledge the fact that human beings are generally pretty self-interested. They have their altruistic impulses too, but they are often selfish. Liberalism’s response is to try to channel self-interest through institutions that can turn it to the greater good. The market is one such institution, as Adam Smith explained by pointing out, famously, that “[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest”. And liberals try to use politics in this way too: hence Madison’s insistence that “ambition must be made to counteract ambition”.

But, to repeat, none of that precludes or condemns altruism. In trying to channel selfish behaviour for the benefit of society, liberalism certainly does not say that unselfish behaviour should somehow be disapproved of. What liberalism does insist on is that there are limits ― depending on one’s version of liberalism, perhaps very stringent limits ― on the degree to which people can be coerced into acting and living for the sake of others. But liberalism has a better opinion of human nature than those theories that apparently say that human beings will be navel-gazing hedonistic egotists (or, all manner of other unedifying things, as other critics of liberalism claim) unless forced to be virtuous by the government. (Liberalism asks: how is government going to be more virtuous than the governed?)

“He has no moral duty to others“

I won’t repeat what I’ve already said about Lord Acton’s and Hayek’s championing of freedom as the space in which individuals can understand and discharge their obligations ― not one where they have none. Let me, instead, remind you of the Lockean argument for the state. In a nutshell: individuals have inherent natural rights and a moral duty to respect the rights of others; unfortunately, left to their own devices, they are not very good at complying with this duty even when they earnestly try; an authority that can clarify the scope of individual rights and corresponding duties, and impartially adjudicate allegations of breach is necessary. A concern with moral duty is that at the foundation of liberal politics.

Again, what liberals deny, with greater or lesser vigour depending on their preferred flavour of liberalism or libertarianism, is the claim of the state to create moral duties incumbent on those subjects to their jurisdiction. If they subscribe to the doctrine of natural rights, they will say, with Jefferson, that governments are instituted in order to secure these rights, and that, therefore, the creation of duties not tending to secure natural rights is beyond their just powers. But it does not follow, and liberals do not believe, that moral duties to others cannot arise otherwise than through the state.

Let me make just two additional points. One, which follows directly from the foregoing is that critics of liberalism are often confused, or obfuscating, about its nature: it is a political, not a moral, philosophy; a theory of how political power should be organized, not of how to live a good life. Liberal political institutions (understood broadly, to include things like constitutions, laws, and courts) serve to preserve the space in which individuals ― either alone or in community with others ― seek to live a good life, as they understand it. Some liberal thinkers such as Adam Smith or even, to an extent, Lord Acton, had ideas about the good life. Being a liberal doesn’t mean taking no interest in moral questions. It only means renouncing the imposition of one’s own answers to such questions by force on others whose answers might be quite different.

The second point I’ll make here is that while I have responded to a critique of liberalism coming from the right, this critique would need only minimal adjustments to its language to be embraced by the illiberal left. The view that liberalism is nothing more than a smokescreen for egoism and selfishness is a staple of socialist doctrines going back a century and a half. The criticism of liberalism as denying social ties, and the limitations that community and belonging impose on individuals might seem newer. Indeed, many right-wing critics of liberalism are convinced that it is no different from socialism in this regard. But real-life socialist regimes were actually quite nationalistic themselves. More importantly in 2021, the ascending left considers human beings to be largely shaped by their intersecting identities, and bound by the resulting sums of privilege and oppression. They use a different vocabulary from the one that appeals to the right-wingers, but their message, and their critique of liberalism, is much the same. And, of course, it is wrong for much the same reasons.

Left and right alike criticise liberalism for its commitment to respecting the autonomy of individuals in ordering their own moral universe, based on their understanding of their place in the world and their relationships with family, community, and perhaps God. They think they can do better: give people a purpose in life and a morality which, left alone, they sometimes fail to find. But there is, and can be, no agreement on an all-encompassing morality that is not imposed by force, and as difficult as it may be to find one’s purpose without coercion, it is more difficult still to accept a purpose imposed on us by others. The others, after all, are still our fellows, albeit that an accident of birth, or the privilege of education, or the fortune of an election, or the force of a coup has elevated them to a higher social ― not moral ― station.

Thus the illiberal right and left alike are doomed to failure in their quest for a better world. As Hayek wrote, they have “nothing to put in … place” of the individualist, liberal virtues ― “independence, self-reliance, and the willingness to bear risks, the readiness to back one’s own conviction against a majority, and the willingness to voluntary cooperation with one’s neighbors”. In their place, they can only make a “demand for obedience and the compulsion of the individual to do what is collectively decided to be good”. And because they know that they cannot persuade people to abandon liberalism with such demands, they try to caricature and defame it. Do not believe them.

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.

Upcoming Canadian Talks

Save the dates!

In a couple of weeks, I will be hopping on to a 13-hour transpacific flight and heading to Canada to give a series of talks. Here are the dates and topics. I don’t have all the details about the exact time and location yet, so if you are based at or near one of the host institutions, keep an eye out ― or get in touch with me or my hosts closer to the day.

  • September 26, University of Victoria, Faculty of Law (Runnymede Society): “The Road to Serfdom, 75 Years On”. I take it that this will be inaugural Runnymede event at UVic, and I am very honoured to be part of it.
  • September 30, Université de Sherbrooke, Faculty of Law: « Route de la Servitude: fermée pour travaux (de démolition)… depuis 75 ans ». This will be the French version of the UVic talk; I’m afraid I’m a bit puzzled by the title, but I didn’t to choose it.
  • October 2, University of Toronto, Faculty of Law (Runnymede Society): “An Election Is No Time to Discuss Serious Issues. Really?” This will be discussion of the regulation of civil society participation in election campaigns, which has been much in the news in recent weeks.
  • October 4, University of Waterloo (Freedom of Expression in Canada Workshop): “A Conscience- and Integrity-Based Approach to Compelled Speech”. The workshop is being organized by Emmett Macfarlane, who has just told it is full… but there is apparently a waitlist. My paper builds, of course, on what I have had to say about things like the citizenship oath, the Law Society of Ontario’s “statement of principles”, and Ontario’s anti-carbon-tax stickers.
  • October 9, Université du Québec à Montréal, Département des sciences juridiques: « Les élections sont-elles une occasion de se taire? ». This will be the French version of the Toronto talk, with a discussion of the Québec legislation thrown in.
  • October 11-12, Ottawa (Workshop on the Royal Prerogative): “The Royal Prerogative in New Zealand”. This is the first meeting of a group put together by Philippe Lagassé to carry out a SSHRC-funded research project on the prerogative in Canada, the UK, Australia, and New Zealand. Professor Lagassé also tells me the workshop is “pretty much full”. Are you seeing a theme here? Yep, I’ve managed to get myself invited to really cool workshops.
  • October 16, McGill University, Faculty of Law (Runnymede Society): a discussion with Paul Daly on administrative law. If the Supreme Court co-operates, we will, of course, discuss the Vavilov and Bell/NFL cases, in which the Court may, or may not, completely change the Canadian law of judicial review. If the decisions are not released, it will be a more general conversation. Either way, I am looking forward to
  • October 18, Université de Montréal (Symposium of the Journal of Commonwealth Law): “Unholy Trinity: The Failure of Administrative Constitutionalism in Canada”. I will be presenting a paper arguing that the Supreme Court’s disgraceful decision in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case illustrate the problems that plague “administrative constitutionalism” ― the view that administrative decision-makers’ decisions bearing on constitutional rights are entitled to judicial deference.

I am grateful to the people who have invited me and/or organized these events. (A special shout-out to my co-blogger and president of the Runnymede Society, Mark Mancini!) If you are able to make it to one (or more) of the talks, please say hello. It is always a pleasure to meet some of my readers in person. See you soon!

The Limits of Legal Expertise

What kind of experts are legal experts ― and is their authority in danger?

In an interesting article on “The Limits of Expertise” published on Quillette last month, Alex Smith attempts to explain the seemingly generalized loss of faith in expertise, and to offer some solutions. While Mr. Smith doesn’t discuss the law, I think that his analysis is applicable to legal systems. After all, lawyers and judges are ― or are supposed to be ― experts too, and they, like others, are arguably vulnerable to a loss of faith in their expertise. The New Zealand Parliament, indeed, is so concerned about this that it is considering imprisonment and forced abjurations as remedies to what it deems excessive criticism of the judiciary, something I and others are trying to push back against. Seeking to understand the causes of the loss of faith in legal experts seems more likely to be productive response to this issue than criminalization.

Mr. Smith observes ― like many others ― an unpleasant fact: “smart people keep getting it wrong and scepticism about their competence has grown as a result”. “It” might be the path of the economic cycle, the outcome of an election, or even, says Mr. Smith, the next “[a]pocalyptic deadline[] for climate change devastation”. There has been no shortage of misguided forecasting in the last few years. And yet, “[n]obody says, ‘I want someone unqualified to be my president, therefore I also want someone unqualified to be my surgeon.’ Nobody doubts the value of the expertise of an engineer or a pilot.” Skepticism of experts isn’t as pervasive as some might think. How to make sense of this?

Mr. Smith argues that the key to this puzzle is a distinction between “closed systems” and “open” ones. The former ― like “a car engine or a knee joint” ― “are self-contained and are relatively incubated from the chaos of the outside world”. They can be understood, and even controlled. Experts in such systems have no public trust problem. Open systems, by contrast, ― things like “the economy”, “politics”, and “climate” ― “have no walls and are therefore essentially chaotic, with far more variables than any person could ever hope to grasp”. They are impervious to (complete) human understanding, let alone control. And it’s the overconfident experts in open systems, who thought they understood them much better than they really did, and even imagined that they might be able to control them, and have been discomfited, who have spectacularly lost the confidence of the public.

Now, Mr. Smith is not calling for such experts to be put out of work. If anything, he wants there to be more of them ― or at least more viewpoints among them. Individually, such experts need to be humble and remember that there is no chance of their coming into the possession of the whole truth. Collectively, “over time,” they can “mitigate[] the chaos of the open system” by letting individual opinions confront one another and known mistakes to be weeded out, albeit only to be replaced by new ones. But the failure recognize the necessity of, and enable, such confrontation leads straight to “inevitable excesses of hubris, that attract us like moths to a flame” ― and to the inevitable discrediting of experts that results.

There are valuable insights here, the more so because they are not new. Mr. Smith’s distinction between open and closed systems does not exactly track F.A. Hayek’s line between “nomos” and “taxis” ― order spontaneously evolved and order designed ― but it is not entirely dissimilar. Mr. Smith’s message about the need for humility and the impossibility of controlling open systems is as Hayekian as it gets, extrapolating from Hayek’s admonition in The Fatal Conceit: The Errors of Socialism that “[t]he curious task of economics is to demonstrate to men how little they really know about what they imagine they can design”. To be sure, there can be some dispute about where the line between open and closed systems lies, and whether particular areas of knowledge might move from one category to the other as scientific knowledge expands. Mr. Smith suggests that “climate” is an open system ― but even if he is right that our current level of knowledge is such that we cannot fully understand, let alone control it, the same might have have been true of knee joints a couple of centuries ago. In any case, these questions, and some over-generalizations in Mr. Smith’s argument (notably, the claim that all “open” systems are “natural”) do not detract from its essential soundness. But how does the law fit into it?

There are those who think that the law is largely a closed system, which technical and perhaps observational skills allow one to master and so to provide right answers to the questions that arise within it. In a post some years ago I described Hayek and Ronald Dworkin  as “right answer romantics” who are mostly convinced that judges can do this.

More realistically, perhaps, it seems plausible to think of law as a “semi-open”, rather than a completely closed, system. Mr. Smith applies this term to medicine, though without explaining why, or quite what it means. With respect to law, it might refer to the view that, while the law often provides right answers that a sufficiently skilled person can discover, it does not always do so, and leaves some questions to the realm of what Lon Fuller, in “Reason and Fiat in Case Law”, referred to as “fiat” ― “order imposed” when reason and technical skill in interpreting the law provide no adequate guidance. (Fuller was describing judicial fiat, but we can also think of legislative and executive fiat in constitutional law, and perhaps even administrative fiat in statutory interpretation.)

But we might also think of law as an open system ― open, that is, to influences of the social sciences, of morality (not identified, as in Dworkin’s work, as the one true interpretation of the morality expressed in the pre-existing political decisions of the community, but understood as something more personal), perhaps even of more subjective factors. Richard Posner’s “pragmatism” is an unusually forthright expression of this view, but it is also associated with various “legal realist” and “critical legal studies” schools of thought.

Importantly, the Supreme Court of Canada seems increasingly to favour the view of the law as an open system. It insists that there are no judicially discoverable right answers to questions of statutory interpretation or even of constitutional justification of restrictions on rights and freedoms, and that in answering such questions administrators ― regardless of whether they are legally trained ― can be “experts” to whose judgment courts ought to defer. It believes that an undefined balance, rather than the interpretation of the constitutional text, ought to guide the resolution of constitutional disputes. It even claims that acquaintance with “social values” is as if not more important to its own legitimacy as is legal skill.

Now, the view that the law is an open system, exposed to outside influences and impervious to purely technical understanding and control, is not inherently implausible ― no more so than the opposite view that the law is a fully closed system. (I agree with neither of these views ― but I don’t think they are crazy.) The trouble is that the Supreme Court and its (too) numerous fans in the Canadian legal profession and beyond want to have it both ways: they want to treat law as an open system in which the influence of extra-legal, non-technical considerations is inevitable and legitimate, while claiming for the Court the authority to which experts in closed, but not open, systems are entitled. Hence the decisions signed “by the Court” or by improbably large numbers of purported authors that present legally dubious holdings as oracular pronouncements; hence the attempts to delegitimize criticism of the Supreme Court as a danger to the Rule of Law. Such behaviour would be understandable, perhaps even defensible, if the law were entirely a matter of technical skill. But if the law is seen as the product of judgments based not on technical craft, but on policy considerations or morality, they can only proceed from what Mr. Smith rightly describes as hubris.

The position of legal academia is worth considering too. In the good old days, whenever those were, it may have been thought that law professors, like other lawyers, were closed-system experts. Some might still defend this view, but it is not a popular one these days. Rather, law professors like to present themselves not just as the systematizers of and commentators upon legal craft, but as teachers of, and writers on, “history, culture, economics, and political economy” ― as Lisa Kelly and Lisa Kerr wrote in an op-ed in the Globe and Mail earlier this year. While, as I noted in my comment on this op-ed (which is generally relevant to the issues discussed in this post) I am skeptical of the ability of most law professors to be true experts in such a variety of areas, I take the point that academic law, no less (actually, rather more) than adjudicative law, is at least a semi-open, if not a fully open system.

What follows from this? I think it would be wrong to wish to close down the legal system, as it were. I do not think that it is possible, or indeed desirable, to insulate the law entirely from external influences ― whether those of the (social) sciences or even, to some extent at least, those of ideology. (Of course, the permissible scope of outside considerations is a difficult question, as is that of the manner in which they must be integrated with the law’s more technical aspects.) However, whether we view the law as an entirely open system (and, as noted above, I think that this too is a mistake) or as a semi-open one, we cannot insist that legal experts are entitled to the unquestioning deference that experts in closed systems can expect and still receive. As Mr. Smith says, when experts deal with open ― or, I would add, to the extent that they deal with open elements of semi-open ― systems, they ought to be humble about what they can know and what they can achieve, and they ought to make sure that a diversity of views informs their opinions and decisions. Neither condition obtains to anything like a sufficient degree in Canadian law, and in the Canadian legal academy, right now. This, as Mr. Smith suggests, is likely to undermine confidence in expertise ― and for those who care about the Rule of Law, that outcome is not a desirable one at all.

Expecting Too Much?

I have recently responded here, in some detail, to Andrew Coyne’s article claiming, in essence, that some of the Supreme Court’s recent decisions were not mere wrong, but altogether unreasonable, and therefore “activist.” Over the Policy Options blog, I briefly take on Gordon’s Gibson’s attack on the Supreme Court’s alleged activism, which I think is quite gratuitous, and nowhere near as interesting as Mr. Coyne’s. Jamais deux sans trois, they say. So here’s a response to another example of this genre ― an op-ed by Brian Lee Crowley, originally published behind an impenetrable paywall by the Globe, but now conveniently available on the website of the Macdonald-Laurier Institute.

Mr. Crowley argues that the Supreme Court’s recent decisions ― he refers to those on “the right to strike, assisted suicide, national securities regulators, Senate reform or who is entitled to sit on the Court” ― are responsible for an “insidious corruption of purpose of the law, the legal profession and the courts.” Behind some (unnecessarily, in my view) combative rhetoric, his argument is quite interesting. It can, I think, be summarized as follows:

1. “One of the most basic purposes of the law” is to generate stable expectations about people’s entitlement and liabilities;
2. The courts’ application of (and, more broadly, the legal profession’s and academia’s thinking about) the Charter, however, has produced a jurisprudence that is unstable and disrupts instead of fostering expectations;
3. More, and worse, it has produced a mindset that does not care for stability, and on the contrary finds virtue in “turning the law into an instrument of social change” ― not just in constitutional cases but across the board, including, for example, in contract law.

The first point is a staple of the Rule of Law discourse, and few lawyers will disagree with it. The following two, however, are overstated, in my opinion. There is something to them but rather less than Mr. Crowley claims.

It is true, for instance, that the Supreme Court’s Charter jurisprudence is not a paragon of stability. The Court’s high-profile decisions on prostitution, labour rights, and assisted suicide were reversals of earlier precedents. That said, some context is in order. The previous decisions on prostitution and assisted suicide dated from the first decade of Charter jurisprudence. Neither the Court itself nor the litigants had yet had the time to work out the way to argue and decide such cases. The relevant legal principles were in their infancy; the factual records which proved crucial to the more recent decisions were not available. Criticizing reversals of such early decisions is not altogether fair. The labour law cases are a different matter, because they reversed much more recent decisions, and there was no evidentiary record to justify their reversal either.

The other cases which Mr. Crowley alludes to, by contrast, simply aren’t reversals of existing precedent. L’Affaire Nadon was a case of first impression. The Senate Reference, as I have argued, for example, here, fits in a consistent pattern of the Supreme Court’s rejection of unilateral constitutional reform, as does Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837. The latter case also builds, straightforwardly in my view, on a long line of cases interpreting the federal “trade and commerce” power narrowly. If anything, the way to criticize it is by saying that the Court was wrong to apply these precedents in a changed economy. (I don’t think it was, but that at least would be a strong critique.) Indeed, at first glance, it seems rather strange that Mr. Crowley has listed these decisions as examples of the Supreme Court’s destabilizing legal expectations ― though I think there is an explanation, to which I will shortly come.

Before doing so, let me address Mr. Crowley’s third claim, which is that the Charter has had a broader destabilizing influence. Indeed, it is worth noting that none of the cases I discuss in the previous paragraph was based on the Charter. To the extent that they did in fact generate instability, they would arguably be examples of that influence ― but I don’t think they are very convincing examples. Mr. Crowley’s main concern, though, seems to be with private law. He is, for instance, visibly annoyed by the Supreme Court’s decision in Bhasin v. Hrynew, 2014 SCC 71, which incorporated a general duty of good faith into the Canadian common law of contract.

The difficulty with Mr. Crowley’s argument here is that even the good old common law fields of tort and contract were never quite as immutable and predictable as he makes them out to be. I will give just one example here:

Faced with this abuse of power – by the strong against the weak – by the use of the small print of the conditions – the judges did what they could to put a curb upon it. They still had before them the idol, “freedom of contract.” They still knelt down and worshipped it, but they concealed under their cloaks a secret weapon. They used it to stab the idol in the back. This weapon was called “the true construction of the contract.” They used it with great skill and ingenuity. They used it so as to depart from the natural meaning of the words of the exemption clause and to put upon them a strained and unnatural construction. In case after case, they said that the words were not strong enough to give the big concern exemption from liability; or that in the circumstances the big concern was not entitled to rely on the exemption clause.

Lord Denning, to whose unmistakable pen these words belong (in George Mitchell (Chesterhall) Ltd. v. Finney Lock Seeds Ltd. [1983] Q.B. 284 (C.A.)), is the judge who, for many generations of law students throughout the Commonwealth, arguably was the incarnation of the common law itself. He also drove lawyers mad with his jurisprudential innovations, even prompting a distraught student to write an open letter to the Times asking him to please not change the law any more before her bar exam (an incident which he gleefully recounts here). And, needless to say, he plied his trade in a blissfully, or sadly, Charter-free legal system.

For all that, it is not impossible that the Charter has contributed to a professional mindset that questions the old adage that it is more important for matters to be settled than to be settled right. It may well have made the legal profession into a less conservative and more activist group. But I don’t think that Mr. Crowley has demonstrated this. Such a demonstration would require rigorous comparison and attempts to isolate the influences of a single constitutional document from those of broader, and independent, cultural trends. It would be a difficult task.

Even if it could be accomplished, would Mr. Crowley’s normative claim ― that the use of law to bring about social change, to settle matters “right” even at the risk of upsetting expectations, is a form of “corruption” ― be justified? The claim is reminiscent of F.A. Hayek’s views in Law, Legislation and Liberty, according to which “the only public good with which [a common law judge] can be concerned is the observance of those rules that the individuals can reasonably count on” (vol. 1, Rules and Order, p. 87). Yet Hayek acknowledged that “law arising out of the endeavour to articulate rules of conduct … may not develop in very undesirable  directions” (88). In such cases, he thought that the best remedy was a legislative intervention. Like Mr. Crowley, he was not keen on judicial overturning of precedents, arguing that “[t]he judge is not performing his function if he disappoints reasonable expectations created by earlier decisions,” (88) even if misguided ones.

The problem with this approach is that legislatures aren’t always ready to intervene to correct undesirable developments in the law. What I recently described here as “democratic process failures” ― “persistent inabilit[ies] of that process to produce laws that majorities would agree with and find desirable” ― are a real problem, and possibly an even more pressing one in the realm of private law, which just doesn’t attract the attention of legislators a great deal, than with salient constitutional issues. And so it is not obvious to me that judges should not sometimes intervene and change the law, even at the risk of upsetting established expectations. After all, legislative intervention disrupts expectations as much as judicial intervention does.

And then, there is another problem too, which neither Hayek nor Mr. Crowley really address: expectations are sometimes not as stable as they seem to believe. Quite apart from legal change, social change happens, and settled law can, instead of conforming to, and confirming, social expectations, come into conflict with them. This, I suspect, is what accounts for Mr. Crowley’s inclusion of l’Affaire Nadon, the Senate Reference, and the Securities one in his list of expectation-upsetting cases. They did not, I have argued, upset any reasonable legal expectations. But they may have upset the expectations actually held by a large number of people ― without reference to the law.

It is fine to say that the law must uphold expectations ― it usually must, and it is usually clear enough what must be done in order to achieve this. But not always. A good theory of law must account for the occasional difficulties of this task. It must account, in a realistic way, for the need to correct the mistakes made in this process. And it must account for the possibility of social expectations diverging, sometimes quite quickly, from legally settled ones (which is arguably what happened with assisted suicide). Mr. Crowley’s argument is interesting, but it probably expects too much from the law.

An Online Bill of Rights?

Just a quick note to let my readers here ― those, that is, who avoid my shameless self-promotion on social media ― know about my new post for the CBA National Magazine’s blog. Taking up Yves Faguy’s invitation (at Slaw) to discuss whether “we need a global digital bill of rights.” Drawing on a paper I wrote last year and presented (to mostly perplexed and sceptical audiences) at a couple of conferences, I make a Hayekian argument against this idea. In my view, an attempt to codify the rights that we ought to have online is unlikely to succeed for the foreseeable future. Both the technology and the social, contractual, and legal norms that define the online world change too quickly for any attempt to impose on them a rigid constitutional framework not to produce perverse, innovation-stifling consequences.

To Track or Not to Track?

There was an interesting article in the New York Times this weekend about the brewing fight around “do not track” features of internet browsers (such as Firefox or Internet Explorer) that are meant to tell websites visited by the user who has enabled the features not to collect information about the user’s activity for the purposes of online advertising. Here’s a concrete example that makes sense of the jargon. A friend recently asked me to look at a camera she was considering buying, so I checked it out on Amazon. Thereafter, for days on end, I was being served with ads for this and similar cameras on any number of websites I visited. Amazon had recorded my visit, concluded (wrongly, as it happens) that I was considering buying the camera in question, transmitted the information to advertisers, and their algorithms targeted me for camera ads. I found the experience a bit creepy, and I’m not the only one. Hence the appearance of the “do not track” functionalities: if I had been using a browser with a “do not track feature”, this would presumably not have happened.

Advertisers, of course, are not happy about “do not track.” Tracking our online activities allows them to target very specific ads at us, ads for stuff we have some likelihood of being actually interested in. As the Times explains,

[t]he advent of Do Not Track threatens the barter system wherein consumers allow sites and third-party ad networks to collect information about their online activities in exchange for open access to maps, e-mail, games, music, social networks and whatnot. Marketers have been fighting to preserve this arrangement, saying that collecting consumer data powers effective advertising tailored to a user’s tastes. In turn, according to this argument, those tailored ads enable smaller sites to thrive and provide rich content.

The Times reports that advertisers have been fighting the attempts of an NGO called the W3C (for “World Wide Web Consortium”) to develop standards for “do not track” features. They have also publicly attacked Microsoft for its plans to make “do not track” a default (albeit changeable) setting on the next version of Internet Explorer. And members of the U.S. Senate are getting into the fight as well. Some are questioning the involvement of an agency of the US government, the Federal Trade Commission, with W3C’s efforts, while others seem to side against the advertisers.

The reason I am writing about this is that this may be another example of the development of new rules happening before our eyes, and it gives us another opportunity to reflect on the various mechanisms by which social and legal rules emerge and interact, as well as on the way our normative systems assimilate technological development. (Some of my previous posts on these topics are here, here, and here.)

W3C wants to develop rules―not legally binding rules of course, but a sort of social norm which it hopes will be widely adopted―regulating the use of “do not track” features. But as with any would-be rule-makers, a number of questions arise. The two big ones are ‘what legitimacy does it have?’ and ‘is it competent?’ As the Times reports, some advertisers are, in fact raising the question of W3C’s competence, claiming the matter is “entirely outside their area of expertise.” This is self-serving of course.  W3C asserts that it “bring[s] diverse stake-holders together, under a clear and effective consensus-based process,” but that’s self-serving too, not to mention wishy-washy. And of course a claim can be both self-serving and true.

If not W3C, who should be making rules about “do not track”? Surely not advertisers’ trade groups? What about legislatures? In theory, legislatures possess democratic legitimacy, and also have the resources to find out a great deal about social problems and the best ways to solve them. But in practice, it is not clear that they are really able and, especially, willing to put these resources to good use. Especially on a somewhat technical problem like this, where the interests on one side (that of the advertisers) are concentrated while those on the other (the privacy of consumers) are diffused, legislatures are vulnerable to capture by interest groups. But even quite apart from that problem, technology moves faster than the legislative process, so legislation is likely to come too late, and not to be adapted to the (rapidly evolving) needs of the internet universe. And as for legitimacy, given the global impact of the rules at issue, what is, actually, the legitimacy of the U.S. Congress―or, say, the European Parliament―as a rule-maker?

If legislatures do not act, there are still other possibilities. One is that the courts will somehow get involved. I’m not sure what form lawsuits related to “do not track” might take―what cause of action anyone involved might have against anyone else. Perhaps “do not track” users might sue websites that refuse to comply with their preferences. Perhaps websites will make the use of tracking a condition of visiting them, and sue those who try to avoid it. I’m not sure how that might work, but I am pretty confident that lawyers more creative than I will think of something, and force the courts to step in. But, as Lon Fuller argued, courts aren’t good at managing complex policy problems which concern the interests of multiple parties, not all of them involved in litigation. And as I wrote before, courts might be especially bad at dealing with emerging technologies.

A final possibility is that nobody makes any rules at all, and we just wait until some rules evolve because behaviours converge on them. F.A. Hayek would probably say that this is the way to go, and sometimes it is. As I hope my discussion of the severe limitations of various rule-making fora shows, making rules is a fraught enterprise, which is likely to go badly wrong due to lack of knowledge if not capture by special interests. But sometimes it doesn’t make sense to wait for rules to grow―there are cases where having a rule is much more important than having a good rule (what side of the road to drive on is a classic example). The danger in the case of “do not track” might be an arms race between browser-makers striving to give users the ability to avoid targeted ads, or indeed any ads at all, and advertisers (and content providers) striving to throw them at users.  Pace the president of the Federal Trade Commission, whom the Times quotes as being rather optimistic about this prospect, it might actually be a bad thing, if the “barter system” that sustains the Internet as we know it is be caught in the crossfire.

Once again, I have no answers, only questions. Indeed my knowledge of the internet is too rudimentary for me to have answers. But I think what I know of legal philosophy allows me to ask some important questions.

I apologize, however, for doing it at such length.