Posted by: captainfalcon | January 29, 2010

Gotta Tamahana-it to Him

Helen directed me to a generally excellent article – “The Dark Side of the Relationship Between the Rule of Law and Liberalism” – which contains the following trenchant distinction:

In his 1944 classic, The Road to Serfdom, Friederich Hayek…defined the rule of law as the notion that “the 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 this knowledge.”


Hayek asserted that “any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law.” Attempts at achieving substantive equality and distributive justice are inconsistent with the rule of law, according to Hayek, because both require context specific adjustments in social distributions of opportunities and wealth, which cannot be accomplished through the application of general rules set forth in advance…[Ludwig von] Mises (Hayek’s colleague) also acknowledge that redistributions are prohibited…but he attributed this to the implications of liberal doctrines relating to the protection of property and the free market…not the rule of law as such.

[Hayek’s move] insinuates the rule of law within the complex of classical liberal ideals, thereby raising the stakes: an opponent of these doctrines is not just challenging classical liberalism, but, even worse, threatening the rule of law.

Tamahana goes on to notice that, when Hayek wrote The Road to Serfdom in 1944, “the social welfare state was a fait accompli, with classical liberalism apparently moribund, but the ideal of the rule of law had begun to enjoy increasing prestige as the key element that distinguished the free West from Nazi Germany and Communist Russia. Hence Hayek astutely, though by all indications with true conviction, hitched his [classical] liberalism to the rising star of the rule of law” (Tamahana, 23-24).

It is remarkable how the same kinds of policy prescriptions can be inferred from any number of different political values. I suspect it is because, in order to become a “political value” in the first place, a norm needs to generate a whole bunch of results that a lot of people regard as worthy. Because the results people, in the main, pretheoretically regard as worthy consist in a mixture of liberty and equality, it makes sense that most norms that can rise to the stature of “political values” will yield a little bit of both, and so that revisionism can tilt them to favor one or the other.


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