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 historical particular 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 church 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.