Bringing Politics into Hayek and Schmitt’s Sublime Conception of Law

The last post finished with some sketches of positions in legal theory. The Hayek-Schmitt position in which Law is above Legislation (Laws emerging from social consensus about basic rules of justice is above the changeable often administrative concerns of a sovereign political body in its legislative acts) seems closest to a traditionalist natural law theory, usually traced back to Thomas Aquinas, and most associated amongst current writers on law with John Finnis. Hayek himself notes that his view of law might be taken for natural law theory, but complains that tradition is too rigid. There are two notable things about Hayek’s comments: 1. he does not completely distinguish himself from natural law tradition; 2. he emphasises the need for openness in legal institutions. So perhaps Hayek’s position is one of natural law modified to tae account of the evolution and Law, and by evolution of generally accepted principles of justice.

This can sound like Ronald Dworkin or even Jürgen Habermas. Dworkin (who died very recently) was a left liberal committed to centrally designed schemes of income redistribution, in the context of a large public sector and a highly regulated economy, so not in line with Hayek’s thinking. Habermas might seem even worse from a Hayekian point of view since he emerged from the Marxist Frankfurt School, but in reality his thought fits more with an egalitarian liberal way of thinking than with Marxism of any kind, except for ‘revisionist’ forms which in effect turn Marxist gaols into ideals pursued through political liberalism rather than class struggle, and which are general ethical goals rather than concrete proposals for social reinvention. Both Dworkin and Habermas think of law as formulated, revised and interpreted through an evolving political consensus, which they expect to have an increasingly egalitarian impetus.

The consensual-rationalist way this is framed leaves their theories ill equipped, or so I contend, to deal with individual and social action which does not fit in with their hopes for an egalitarian society based on rational reflection about how to increase individual autonomy through increasing equality. What they have  difficulty in dealing with individualistic action and resistance to state promotion of equality in a society integrated under state guidance. Anti-tax, deregulatory, state shrinking movements look like irrational populism to those of a Dworkin-Habermas frame of mind. The wish to preserve one’s property from increasing state demands to treat private  property as a bit of a public sum of welfare, which the state can dispose of if it so wishes, seems irrationally selfish within that framework, as does the wish of business to reduce regulatory burdens, or  any individual inclination to resist state led attempts to mould individual choices.

The Hayekian approach to social knowledge, on the model of economic action, as dispersed between all actors  and as something that never be aggregated as a guide to state action, does far better as a way of thinking about the ways that political attitudes may emerge from the constant reinvention of the economy and society. It suggests that irrationality comes more from state attempts to define maximum welfare for everyone than from individual resistance to such state activity. It is not that Habermas, Dworkin and the like are completely unaware of such issues, or the need to accommodate them, but that their way of thinking just does not allow for much weight for such considerations, which are always likely to be regard as secondary phenomena.

I outlined major legal theories in the last post. Though I mentioned Critical Legal Studies as the most left leaning stream, and as even disdained by those of other political leaning, at its best and least politically gestural, CLS provides a better fit for Hayek’s understanding of markets as decentralised, self-innovating and challenging to all attempts at top down control. It provides a better fit than Hayek’s own inclination to Law as an institution looming over the economy as the highest representative of mores and shared principles of justice. This elevation of Law to sublime and monumental status can be too easily taken up in the Carl Schmitt tendency to ultra-conservative sacramentalisation of the Order of orders in society, embedded in nationalist and traditional religious ways of thinking.

The CLS approach, like connected work in political and social theory, does draw on thinkers like Max Weber and Hannah Arendt who certainly do not belong on the Marxist or post-Marxist left. Michel Foucault is a frequent reference. I’ve discussed Foucault’s thought, including its political implications, in a large number of previous posts, so I will not go over that again. I will just note that Foucault is often brought together with Weber and Arendt as a theorist of political and social community in the modern world. Framing those three with regard to Hayek and market liberal thought could bring considerable benefits, and would frequently just very obviously be closer to their world view.

As far as CLS takes a position on the standard distinctions in legal theory it leans towards positivism-realism rather than natural law in its more evolutionary or more conservative forms. CLS does this because concern with politics leads it to consider law as expression of power. At its best CLS brings an appreciation of political conflict to positivism-realism correcting a tendency to a reductive view of the role of political power. From this point of view, CLS may bridge the gap between positivism-realism and the more evolutionary forms of natural law, with regard to a concrete detailed investigation of politics, and of political conflict.

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