Hayek’s Error 2: The Missing Evolutionary Stages

As well as reasons previously given for objecting to Hayek’s definitions of a hypothetical distinction between rules of society and of government, there is an objection on grounds of history and ideal types. I refer to Hayek’s method of contrasting tribal society and modern society, which though also improbable as a hypothesis of spontaneous order, has more to commend it.

Hayek:  “The great change which produced an order of society which became increasingly incomprehensible to man, and for the preservation of which he had to submit to learnt rules which were often contrary to his innate instincts, was the transition from the face-to-face society, or at least of groups consisting of known and recognisable members, to the open abstract society that was no longer held together by common concrete ends but only by the obedience to the same abstract rules.”

In the conceptual opposition of tribal society with modern society I find some grounds for a rigorous hypothesis for the probable existence of a personal-impersonal super-rule that joins rather than separates society and government. These raw materials will be identified in bold type.

Hayek:  “The member of the little band to which he had had to stick in order to survive was anything but free. Freedom is an artefact of civilisation that released man from the trammels of the small group, the momentary moods of which even the leader had to obey. Freedom was made possible by the gradual evolution of the discipline of civilisation which is at the same time the discipline of freedom. It protects him by impersonal abstract rules against arbitrary violence of others.”

Here we have it — a more concrete definition for the rules of spontaneous social order is the rule of sufficient impersonality. Furthermore, it is in the context of this transition away from the face-to-face tribal society that Hayek wants us to comprehend the rule for avoiding a ‘common purpose’. 

Hayek:  “The transition from the small band to the settled community and finally to the open society and with it to civilisation was due to men learning to obey the same abstract rules instead of being guided by innate instincts to pursue common perceived goals.”

Hayek’s references to tribal society are all positioned as a critique of socialism and contemporary creeds of social justice. These, he claims, are the repositories of ‘common purpose’ in our time. The constant danger posed to universal rules of just conduct is the instinct of ‘common purpose’. 

Hayek:  “The great moral adventure on which modern man has embarked when he launched into the Open Society is threatened when he is required to apply to all his fellowmen rules which are appropriate only to the fellow members of a tribal group.”

What lingers, still, is Hayek's claim that “unknown” rules of society are the “not” (i.e. the contradiction or the opposite of the organisation and of socialism), which, as already noted, is conceptually insufficient as the basis for a Leibniz-standard hypothesis. The addition of impersonality as the “not” of face-to-face societal relations tightens-up the definition, but to a limited extent only.

Hayek:  “The revolt against the abstractness of the rules we are required to obey in the Great Society, and the predilection for the concrete which we feel to be human, are thus merely a sign that intellectually and morally we have not yet fully matured to the needs of the impersonal comprehensive order of mankind.”

Hayek:  “This conception of ‘social’ justice is thus a direct consequence of that anthropomorphism or personification by which naive thinking tries to account for all self-ordering processes. It is a sign of the immaturity of our minds that we have not yet outgrown these primitive concepts and still demand from an impersonal process which brings about a greater satisfaction of human desires than any deliberate human organization could achieve, that it conform to the moral precepts men have evolved for the guidance of their individual actions.”

In spite of the improved definitional potential offered by the concept of impersonality, the problem of the abstractness of Hayek’s depiction of “unknown” rules of spontaneous social order persists. Hayek’s distinction between the impersonal comprehensive social order and the face-to-face tribal society is not yet a building block for knowledge of the rules of modern society because the timeline is incomplete. It lacks intermediary evolutionary stages, and it lacks system complexity.

Methods of governance have gone through several major evolutions since the days when society was comprised only of differentiations between communities. The rise of the ‘state’ — a concept that Hayek doggedly avoids — was based on differentiations not of community but of peripheries of states, status hierarchies of states, and functions of state. Society is not now a community, but means of governance have changed greatly between then and the present. It is just not realistic to ground definitions of universal rules on a differentiation between community and modern society. 

Hayek:  “The abstract society rests on learnt rules and not on pursuing perceived desirable common objects: and wanting to do good to known people will not achieve the most for the community, but only the observation of its abstract and seemingly purposeless rules.”

Hayek:  “The group may have persisted only because its members have developed and transmitted ways of doing things which made the group as a whole more effective than others; but the reason why certain things are done in certain ways no member of the group needs to know.”

It is clear enough from his criticisms of actually-existing separations of powers — these begin in the first paragraph of ‘Law, Legislation and Liberty’ — that Hayek does not believe universal rules of just conduct which form the basis of the spontaneous order of society at large are to be found in such formal devices of governance. Government devices are never a part of his descriptions of society’s rules. 

The most basic problem of all is that Hayek has missed a few turns in the historical timeline, and apparently fails to detect successive points when the personalism of tribal society changed into different forms of personalism that acquired both concrete institutional forms and philosophical justifications in the middle ages and early modern periods. Partly for this reason his conceptual schema is blinded to the processes or procedures by which impersonality was transmogrified into ‘government’ as reactions against personalism went through their vital stages of evolution. 

None of these institutional developments appear in Hayek’s depictions of either the rules of society or the rules of organisation. If Hayek had recognised the turning points I doubt he would have been led into false or unprovable distinctions between government rules and society rules. It is only after all the intermediary developments that personalism lost force in government contexts. The reasons for this loss of force or legitimacy are of a very ‘knowable’ and concrete nature.

Instead of seeing ‘the great change’ as one in which impersonality acquires formal shapes as a rule uniting government with society, imbuing governance with a knowable and testable binary choices between personal and impersonal action, Hayek persisted with the abstract vs concrete distinction of knowable organisational rules on one hand and unknown societal rules on the other. 

This is strange if one considers that Hayek had at hand a single rule that could achieve all of the objectives he wished for. On a few rare occasions he let slip the possibility of impersonality taking formal shape, but did not pursue it as far as a demonstrable hypothesis of society’s rules.

Hayek:  “The rise of the ideal of impersonal justice based on formal rules has been achieved in a continuous struggle against those feelings of personal loyalty which provide the basis of the tribal society but which in the Great Society must not be allowed to influence the use of the coercive powers of government.”

Hayek also sometimes uses the phrase “equal treatment” to suggest commensurability if not interchangeability with the notion of formal impersonality which lies within government domains. 

Hayek:  “To break the principle of equal treatment under the law even for charity’s sake inevitably opened the floodgates to arbitrariness.”

Hayek:  “What most of the members of the New Left do not appear to see is that [the] equal treatment of all men which they also demand is possible only under a system in which individual actions are restricted merely by formal rules.”

Yet Hayek does not accept, on principle, that the enforcement of such duties of impersonal equality towards all citizens is a primary discoverable rule of government in free societies. He never says “government rules can be impersonal rules”. It seems, from this perspective, that general or universal rules of society naturally cannot at the same time be rules of government. 

Hayek was justified in his criticism of the socialistic pursuit of common ends. But there is nothing intrinsically wrong with common purposes if they are not illusory and will best serve the interests of all members of society. The common interest in shared ends of impersonal markets and impersonal governance is surely not beyond human comprehension. Why should not impersonality be a common purpose, and why should it not at the same time be a government purpose? According to Hayek’s usual analysis, socialism and other Left creeds have a natural monopoly over common purpose. Why, indeed, should government not be the source and guarantor of Hayekian freedom? 

In fact, within Hayek’s “not” descriptions of society’s abstract rules there are at least four hidden but findable-verifiable concrete rules: firstly: impersonal abstract rules against arbitrary violence of others”; secondly: “rules by which it is possible to ascertain from particular facts to whom particular things belong”; thirdly, “the task of a policy of freedom must be to minimise coercion”; and fourthly: “We use an impersonal process to determine the allocation of benefits precisely because through its operation we can bring about a structure of relative prices and remunerations that will determine a size and composition of the total output which assures that the real equivalent of each individual’s share that accident or skill assigns to him will be as large as we know to make it.”

If presented as rules of just conduct each would beg questions that may not lead to answers compatible with Hayek’s usual tenuous distinction between government rules and societal rules. For example, does not the historical record demonstrate with certainty that only government was ever enduringly capable of preventing arbitrary violence and protecting property rights? If there is a rule for freedom from coercion does that mean the rule is unenforceable? Has it not always been the case that only government can maintain the rules of the impersonal market mechanism? We like it or hate it, but enforcement is coercive by definition. There is not one without the other.

I have not claimed that Hayek never acknowledges the fact that government functions integrate or embody general rules of just conduct. He offers many examples of how such rules eventually are expressed in legislation. My criticism is of his errors in not defining essential unequivocal features of society’s rules, in not hypothesising the central contradiction, in not recognising the systemic process by which government inculcates societal rules and vice versa, and in not integrating in historical-theoretical-methodological form the (dimly perceived) personal-impersonal distinction.

I will finish by pointing out one potential entry point which Hayek did not exploit to full advantage. The following is one of Hayek’s most important observations. General — and presumably legal and coercive — regulation of relations between citizens, within governments, and between government and society necessarily has “smaller content” than potentially infinite voluntary, moral, and discretionary regulations that necessarily shape interactions within small groups.

Hayek:  “This application of the same rules of just conduct to the relations to all other men is rightly regarded as one of the great achievements of a liberal society. What is usually not understood is that this extension of the same rules to the relations to all other men (beyond the most intimate group such as the family and personal friends) requires an attenuation at least of some of the rules which are enforced in the relations to other members of the smaller group. If the legal duties towards strangers or foreigners are to be the same as those towards the neighbours or inhabitants of the same village or town, the latter duties will have to be reduced to such as can also be applied to the stranger. No doubt men will always wish to belong also to smaller groups and be willing voluntarily to assume greater obligations towards self-chosen friends or companions. But such moral obligations towards some can never become enforced duties in a system of freedom under the law, because in such a system the selection of those towards whom a man wishes to assume special moral obligations must be left to him and cannot be determined by law. A system of rules intended for an Open Society and, at least in principle, meant to be applicable to all others, must have a somewhat smaller content than one to be applied in a small group.”

This passage contains the usual vague description of rules of just conduct as things they are ‘not’ rather than things they ‘are’. My Capitalism book discusses at length the dilemma Hayek alludes to concerning an elemental transition to rules that apply equally to friends and strangers. Max Weber gave the initial (community) transition a name — the ‘double-ethic’. It is a basic well-known preparatory to impersonal governance, but a very early one. 

Hayek might have made progress had he pursued the insight about “attenuation”, i.e. the reduction in the amplitude of the rules which are most clearly universal or general. Yes, a system of rules for a Great Society must be applicable to all people. Yes, it must offer equal treatment of and for all people without discrimination between them. Hayek was right to suggest such rules have ‘small content’. But what comes more strongly to mind is the simplest binary contradiction that absorbs and assumes other decisions within itself; a binary that persisted through the subsequent evolutionary stages. A binary is ‘small content’ by definition.

To conclude, Hayek’s primary concept — “the universal rules of just conduct which form the basis of the spontaneous order of society” — lacks sufficient historical and theoretical concreteness. If there is a probable binary personal-impersonal rule that simultaneously governs both government and society, Hayek’s first hypothesis for the distinction between organisational and societal rules would be nullified. I have explained Hayek’s second improbable hypothesis as a distinction between tribal society and modern society, and scoured it for materials to use in constructing a historical binary personal-impersonal hypothesis that could correct Hayek’s first and second errors.

Michael G. Heller  ©2021

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