I won't respond point by point, but I just want to point out that Hayek's importance is in the fact that his views represent a restatement for the Twentieth Century of Eighteenth and Nineteenth Century classical liberalism. That restatement obviously has to do more than simply regurgitate Adam Smith, David Hume and John Locke, since so much has happened since those men first articulated their philosophy. So Hayek is restating, but also updating, the tenants of classical liberalism to take account of, among other things, the rise of socialism in all of its manifestations.
Furthermore, the ideas that Hayek articulates about law, about the market, and about freedom, are not some "objectivist" view invented by Ayn Rand. Rather, I suspect it's the other way around. Although I am not familiar with her views as a philosopher, having only read some of her fiction and finding it lacking, I suspect they are a popularization of the same basic set of ideas that Hayek is working off of, though his views are infinitely more sophisticated and nuanced.
One area where Hayek has a great deal to say, that flies right over the heads of the "objectivist" crowd (as well as most other people, I think), is his critique of legal positivism. Again, this critique comes from, and derives its power from, classical Eighteenth and Nineteenth Century liberalism.
As for Bork, you're right: he is a funny bird. However, I do not think he is an economic libertarian any more than he is a libertarian in other fields. His view seems to be that the legislature can do pretty much whatever it wants in the economic field as it can anywhere else. I doubt he would agree, but I do not think that Bork gives enough weight to personal freedom. I do not think the same criticism can be made of Hayek, although his views of what personal freedom is more closely resemble Eighteenth and Nineteenth Century classical liberalism than they do the political philosophy dominant in this century.
Offhand, I'd say those who want the structure of our government to more directly reflect Hayek or Friedman's idea of "Capitalism and Freedom", should work for a new Constitutional convention. I don't think piece by piece legislative reform will ever be enough, and appealing to the "original intent" of the founders would be pretty theological. The founders certainly weren't as democratic as they're made out to be, as the Constitutional indirect election of Senators and the President indicates. But they also weren't very specific about the "property rights" that are now held so central by economic theorists when they move to the political philosophy realm. The founders are also invoked by the "Christian Nation" crowd, which gets really theological. Also a little too original for my taste, my understanding is they were vaguely deist at best.
This passage contains more than you probably realize; there is certainly a lot more here than I can fairly comment on in one post.
First, I think Hayek would view (in fact, he says so) the founders of this nation as classical liberals or "old English Whigs" as he calls them. They tried to implement the form of government which would provide maximum protection to personal and economic freedom. Hayek's views about the nature of law and law making are probably closer to the views of the founders than are the views of the legal positivists (one of which is Bork) that have dominated legal scholarship in this century. So, in a sense, we could get closer to Hayek's ideal of what the proper role of government should be by returning to, or, more accurately, restating for this century, what the intent of the founders was, both with respect to the proper structure of government and with respect to the nature of law.
It does not follow from that, however, that a new constitutional convention would not be necessary. One of the central theses of "Law, Legislation and Liberty" is that the constitution of the United States, like the governmental systems of all the western democracies, contains a critical flaw: it does not limit to the resources given to the government by the people the power of the legislature to pass "measures" which regulate conduct in the furtherance of the plans of the government. It is due to this critical flaw that Hayek believes that increasing governmental efforts to plan and regulate the economy will eventually lead to totalitarianism in all of the Western democracies. So, he would probably favor modifying the constitution to correct that one, very critical flaw.
FWIIW, I would also hypothesize that the views of the people who enacted the Sherman Act about the nature of law, and about what it means for a court to engage in the articulation of legal principles, were probably closer to the views of the founders (and hence closer to the views of Hayek) than are the views of the exponents of legal positivism who, from the 1930's and on, recast antitrust law in its present form (that includes, BTW, Bork and the "Chicago School"). The 1890's, when the Sherman Act was passed, mark the end of the era when classical liberalism was dominant in this country; starting with the Progressive Era and continuing through the New Deal and the Great Society (!), modern socialistic concepts of planning and regulation came to dominate political thought, and their handmaiden, legal positivism, came to dominate legal thought.
The founders are also invoked by the "Christian Nation" crowd,
Hayek talks about the efforts by some groups to regulate the morals of others (a deep-seated human desire, it seems to me), and explains that this is not a proper subject of law because the purpose of such regulation is not to protect the personal realms of others. This is jargonistic, I know, but it goes back to the idea that law should only restrict liberty to the extent needed to protect the equal liberty of others. |
