Hayek Session, September 17, 2004 Core idea of the rule of law is, roughly, the following: government is to guide and limit the exercise of its coercive power—legislative, executive, and administrative—by reference to norms that are general, rather than focused on particular people; public, rather than secret decrees; announced in advance, rather than after the fact; and reasonably stable. Government ought consistently and impartially to enforce such norms. To achieve this, there needs to be a judiciary that operates independent of political branches and parties and that has an obligation to be faithful to the legal materials. The diverse arguments in favor of the rule of law suggest that this restriction on the use of collective power serves values of personal security, liberty, equality, the general welfare, and community. The requirement of generality is said to promote the value of personal security by limiting the discretionary exercise of power, thus protecting people from abuse. The conditions of generality and stability serve the value of liberty in part by requiring that individuals not be subordinate to (at the mercy of) the demands of other individuals; and the conditions of publicity and prior announcement serve liberty by requiring that people in effect be informed in advance about which forms of conduct are permissible. This makes the exercise of power more predictable, enabling people to plan, to regulate their own conduct, and coordinate their conduct with others, which promotes the general welfare. The restrictions serve the value of equality because the generality of rules and consistency in their enforcement ensures, in at least certain minimal ways, that equal cases will be treated equally, regardless of the particularpeople involved. And generality serves the value of community by establishing a common framework of norms for all in the society. Hayek provides a more ambitious argument for the rule of law. He thinks that the rule of law is a more or less sufficient condition for the protection of liberty, which he takes to be the basic political value. While it is possible for a system with rule of law to have severe restrictions on liberty, it is very unlikely. So Hayek is saying the following: 1. Necessity of Rule Law: IF you are aiming to protect personal liberty, then there are compelling reasons for doing so via rule of law: that the rule of law is more or less necessary for the protection of liberty. So it is consistent with this first thesis that there could be a legal order that is not protective of liberty: what it says is that there could not be a free society without the rule of law; but there could be an oppressive society with the rule of law. 2. Sufficiency of Rule of Law: But he is also saying, more strongly, that if you have the rule of law—if the exercise of coercion is confined to the enforcement of abstract and general rules—then the result is very likely to be a secure protection of liberty. He is arguing for a strong connection between, so to speak, form and content: the form of law as such is strongly liberty-protecting, meaning that the rule of law is (with some possible exceptional cases) is sufficient for the protection of liberty. 3. Priority of Liberty/Rule of Law: As a corollary of the first thesis: if there are values that are difficult to advance in a system with the rule of law—because it is hard to advance them through abstract, general rules, because they require discretion, contextual judgment—then advancing those values will be destructive of liberty.This is true, for example, of equality, except if that means equality before the law. These other values must therefore be sacrificed, inasmuch as liberty is basic. 4. So where Rawls advances an ideal of justice founded of the aim of reconciling liberty and equality, Hayek sees a deeper tension, embraces the ideal of a “free society” or “state of freedom” and see the rule of law as lying at the heart of this ideal: upholding the rule of law is both necessary and (under certain reasonable conditions) sufficient for the state of freedom. 1. What is liberty? a) State of liberty or freedom: reduces coercion as much as possible. So liberty is the absence of coercion, and state of liberty is situation in which coercion is reduced as low as we can. Conception of liberty: (i) Negative: Not ability to do things, but the absence of a specific kind of interference, viz. by other intentionally acting agents. Robinson Crusoe is fully free. (ii) Distinctive Value: The account of (personal) liberty is not making a point about the meaning of the word “liberty,” but about a distinctive evil, viz. coercion. Thus personal freedom is said to be a fundamentally different value from political freedom, inner freedom (not being enslaved by passions), and power; (iii) Arbitrary? Sometimes says liberty is absence of arbitrary interference by others. But not consistently affirmed, and apparently for good reason. What does arbitrary mean? Either no good reason or no prior rule (153). If no good reason, then murderers are free when they are jailed because there is a good reason for the interference. Ifpresence of prior rule suffices for non-arbitrariness, then argument that rule of law gives liberty is a matter of definition. b) Three Differences: Distinguishes liberty, as absence of coercion from: (i) political freedom, as consent to the political order and its rules. Hayek thinks this is the distinct idea of an absence of collective subordination. Case that political freedom is fundamentally different from personal freedom depends on alienability of political freedom: can consent to dependence on tyrant. But if you think that political freedom is a standing condition, not an initial state, then the distinction may not be so sharp, because will need to preserve the conditions required for giving consent; (ii) inner freedom, as mastery of passions and emotions, strength of will, which is distinct from presence or absence of interferences from others; and (iii) power, as ability to achieve aims: related to what Rawls calls the “worth of liberty,” that is, what a person is able to do with his/her liberty, understood as absence of coercion. Focusing on the third of these: essential point is that limited choices or inability to achieve aims is no restriction on freedom, unless it results from coercion. c) Unity of Liberty: Unlike Rawls, Hayek emphasizes the “unity of liberty.”