Hayek and Schmitt on Law and Politics

The law over legislation claim that I’ve been discussing in some recent posts refer to attitudes to politic. Very briefly recapitulating, Friedrich Hayek and Carl Schmitt both argued that legislation passed by representative assemblies largely and increasingly has the real nature of an edict, as opposed to law which may be turned into statute form by a representative assembly but refers back to consensual communal standards of justice and essentially follows from them, rather than innovating. This has an anti-political dimension, though it cannot be said that Schmitt and Hayek are always anti-political. Schmitt in particular is fascinated by politics as existential struggle in one of his most famous texts, The Concept of the Political, though that does leave open the question of which aspects of Schmitt’s thought should be given priority, since he often leans towards a more pre-political world of orders within society that have their own principles of organisation.

There is no equivalent in Hayek of the existential account in Schmitt of politics as a struggle between friend and enemy, but much of what he says can be seen as guided by the wish to reassert the primacy of political institutions over the activities and interests of the state administrative apparatus. Hayek sometimes lied to describe himself as a Whig, or Old Whig, a reference to the group in 17th,18th and early 19th century British politics most inclined to Parliamentary rule, commercial society, limits on the power of the monarchy and the state church, and a general belief that political institutions rest on a contract with the people rather than a duty of the obedience of the people to established institutions. Hayek never really gets into explicit definitions and discussions of Whiggism, but the last sentence summarises those aspects of Whiggism closest to Hayek’s own way of thinking.

Schmitt also shows some respect for liberal parliamentary bourgeois politics, particularly with regard to the separation mid 19th century liberalism made between the state and the economy. However, Schmitt is always suspicious of representative institutions as places of endless dialogue and debate, which can never be decisive, and which cannot be fully democratic in their basis. With regard to the last point, Schmitt argues that parliamentary debates never correspond closely to public opinion, and that elected assemblies lack the kind of direct identity with the people as a whole that more presidential, monarchical, dictatorial or plebiscatory forms of government. Schmitt’s assumptions that a Caesarist or Fascist leader could have more ‘democratic’ legitimacy than an elected assembly is at odds with the progress of representative democracy  since the end of World War Two, and even more since the 1989 collapse of communist states, but should not simply be ignored. To some degree, Max Weber showed how to take up those points in Schmitt within a liberal democratic framework, in his long 1919 essay on ‘The Profession and Vocation of Politics’, and that was before most of Schmitt’s own work.

Again the less liberal aspect of Schmitt’s thought, in this case, democratic identity, formation of a popular will through identification with an autocrat, is constrained by a concern with Law, and with the orders of social existence which are closely intertwined with the existence of Law, and which Schmitt thinks of itself as emerging with notions of property and division of property. This is sometimes expressed in a form of international relations realism which regards international law as the instrument of real state power, and the power relations between different states. This changes with changes of power and might seem difficult to reconcile with his notion of Law. There can be reconciliation around the historical changes in social order, and the orders of society, which Schmitt thinks Law encodes.

Hayek’s thought is much less tied to notions of power, and with regard to Law the focus is on Law as something free from the taint of power interests, or particularistic interests of any kind. As I’ve tried to suggest in some of these posts, there may be a problem for Hayek, or the interpretation of Hayek, with regard to whether the evolution of Law is largely at the national state level, or whether it is essentially dispersed between localised forms of Law. Hayek seems to lean towards the first, but seems open to being taken up by those who wish for a polyarchy of legal regimes. There is also ambiguity in deciding how to interpret Hayek between: Law as very self contained  principles of  justice; and Law as something that evolves in relation to economic and social change, finding the best way of structuring social relations according the generally held principles of justice at that moment.

In both Hayek and Sschmitt there is a lot of discussion of politics, but a great tension between: an apolitical view of a self-ordering society expressed in Law, and a more contingent view of Law as something that emerges from social processes including those of the political sphere. A post coming soon will reflect further on how we might get to a proper account of the place of political forms from discussion of Law, legislation and politics in Hayek.

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