INTRODUCTION LAW AND NATURE IN THE WORK OF MURRAY N. ROTHBARD ROTHBARD’S UNPUBLISHED WRITINGS

IN 1952, MURRAY ROTHBARD received a grant from the William Volker Fund to write a book on Austrian economics, based on the ideas of Ludwig von Mises, to be used as a textbook for university economics courses. That book became Man, Economy, and State, published some ten years later. It contained an in-depth investigation of Austrian economics and its policy implications, and it went far beyond the standard university textbook. In the same year of 1952, Rothbard, now aged 26, began to work for the Volker Fund as a senior analyst, and over a period of about ten years he reviewed books, journals, articles, and manuscripts in search of intellectual allies with libertarian leanings. Rothbard enjoyed this kind of work as it offered him the opportunity to read, extremely rapidly, countless books by many different authors. This was a period of hard work, but it was also a time of intellectual development and growth.

The Volker Fund was founded in 1932 by a Kansas City entrepreneur, William Volker. Later, Volker’s nephew, Harold Luhnow, was responsible for the fund’s consolidation and development in the 1940s and ‘50s. This foundation played a crucial role in supporting and disseminating the work of Hayek, who was writing The Constitution of Liberty, and the work of many other libertarian scholars both at the University of Chicago and elsewhere. It organized conferences and seminars at prestigious universities and was one of the most influential classical-liberal foundations in the United States.

Since the end of the 1940s, Rothbard had also been working part time as a consultant to the National Book Foundation (a subsidiary of the Volker Fund) and for the Foundation for Economic Education. The Foundation for Economic Education (FEE) was founded by Leonard E. Read in 1946, with headquarters in a mansion on the banks of the Hudson River in New York. Its aim was to disseminate libertarian ideas, especially in the area of economics. Rothbard first made contact with this foundation when he requested a copy of a pamphlet against rent control, Roofs or Ceilings? written by Milton Friedman and George Stigler. The young Rothbard had attended Stigler’s economics lectures at Columbia University.

The reviews and comments published in the following pages date from the years when Rothbard was working for the Volker Fund, and the two classical-liberal foundations, National Book Foundation, and FEE. Given their nature, they comprise a set of writings that are very heterogeneous, composed in a style that is sometimes informal and marked by the biting irony that was to become a typical feature of Rothbard’s prose. In them, one can find some of the major themes that characterize the thought of the author.

These writings are published here for the first time, in their original English, and the decision to publish them was made for various reasons. Some pieces clarify the author’s position in relation to intellectuals such as Leo Strauss and Karl Polanyi on subjects such as progress, technology, and on what today is termed “globalization.” Others, such as the two sets of comments on Hayek’s Constitution of Liberty, contain not only the criticisms—later found in Ethics of Liberty—of the Hayekian concept of “coercion,” but also some interesting criticisms of the rule of law as a guarantee of liberty and of the absence of references to natural law in Hayek’s work. Furthermore, these writings help shed light on the genesis of Rothbard’s thought. His criticisms of Hayek’s and Mises’s ideas date back to 1958 and 1960 respectively; and it is actually here that, for the first time, Rothbard thoroughly and extensively expresses his dissent from the ideas of the two great masters. The criticisms of Mises are the same as those contained in Ethics of Liberty, but the comments on the Symposium on Relativism of 1960 mark the first time that Rothbard distances himself from some Misesian positions. This is an interesting set of documents showing how the main lines of Rothbardian thought were already firmly in place between the late 1950s and the early 1960s as regards subjects such as the possibility of absolute ethical values based on natural law, the nonaggression axiom, and the criticism of the state.

But that is not all. As early as 1948, we find in the comments made by the twenty-two-year-old Rothbard on Cutten’s paper, “Rugged Individualism,” arguments that demolish the aberrant theories of social Darwinism, revealing that the young author’s individualism was already mature before he met Mises. Allusions to the immorality of the state’s initiatives for social welfare and criticisms of the state were a sign that the development of Rothbard’s thought already included the idea of the state as aggressor.

Alongside these writings, there are very positive comments on Lionel Robbins’s The Great Depression and on Caroline Robbins’s The Eighteenth-Century Commonwealthman. The volume by Lionel Robbins is presented as “one of the great economic works of our time.”¹ Robbins attributes responsibility for the Wall Street Crash of 1929 to the interventionist economic policies that caused the expansion of credit in the preceding years. After this, recovery was slow because of policies that interfered with the capacity of the market to correct the structure of production that had been damaged by the preceding expansion of credit, thereby increasing the length and the severity of the Depression.

Rothbard also greatly appreciates Caroline Robbins’s monumental work on the eighteenth-century republicans. He considers the principal merit of her work to be that it fills the gap between the Glorious Revolution of 1688 and the liberal and republican ideas that emerged at the end of the eighteenth century, thus rediscovering a whole series of liberal, radical, dissident, and republican thinkers. Personalities like Thomas Gordon and John Trenchard—the authors of the famous Cato’s Letters—Thomas Hollis, John Burgh, and Francis Hutcheson are restored to historiography, underlining their important role in preserving and developing the English liberal and libertarian tradition.

ROTHBARD AND LEO STRAUSS

ONE OF THE BASIC themes of the writings presented here is the possibility of a rational foundation for ethical values. Another is Rothbard’s constant reference to natural law and natural rights. Because of these themes, the writings on Strauss, although brief, are important. Rothbard is always critical of Leo Strauss but he agrees with him on the need for a rational basis for ethics and absolute values. These positions are seen both in the review of What is Political Philosophy? and in the comments on Strauss’s paper for the Symposium on Relativism (organized by the Volker Fund in 1960). According to Rothbard, the great virtue of Strauss’s work “is that he is on the forefront of the fight to restore and resurrect political philosophy from the interment given it by modern positivists and adherents of scientism—in short, that he wants to restore values and political ethics to the study of politics.” However, Rothbard thinks that Strauss’s work also contains an important flaw:

The great defect is that Strauss, while favoring what he considers to be the classical and Christian concepts of natural law, is bitterly opposed to the seventeenth- and eighteenth-century conceptions of Locke and the rationalists, particularly to their “abstract,” “deductive” championing of the natural rights of the individual: liberty, property, etc.

Strauss, in fact, has been the leading champion, along with Russell Kirk and the Catholic scholars in America, of a recent trend in Locke historiography... to sunder completely the “bad,” individualist, natural-rights type natural law of the seventeenth and eighteenth centuries, from the “good” classical-Christian type—good, presumably, because it was so vague and so “prudential” that it offered very little chance to defend individual liberty against the state. In this reading, Hobbes and Locke are the great villains in the alleged perversion of natural law.

To my mind, this “perversion” was a healthy sharpening and development of the concept. My quarrel with Strauss, Kirk, et al., therefore, is not only valuational—that they are anti-natural rights and liberty, and I am for them—but also factual and historical: for they think that the Lockeans had an entirely different concept of natural law, whereas I think that the difference—while clearly there—was a sharpening development, rather than a perversion or a diametric opposite.²

This is where Rothbard’s criticism of the Straussian concept of modern natural law first appears.³ Strauss argues that modern natural law is a degeneration of the classical natural law that is an expression of civic virtue. In Strauss’s view, the individualism of the Lockean tradition, with its theory of property, breaks with the classical and Scholastic tradition and represents a decline from the values of the past, placing the individual and his rights at the center of the universe with consequences such as “the solution of the political problem through economic means,” of which he disapproves.⁴ Strauss writes that

Locke’s teaching on property, and therewith his whole political philosophy, are revolutionary not only with regard to the biblical tradition but with regard to the philosophic tradition as well. Through the shift of emphasis from natural duties or obligations to natural rights, the individual, the ego, had become the center and origin of the moral world, since man—as distinguished from man’s end—had become that center or origin.⁵

Safeguarding the individual’s right to property becomes an aim of the kind of politics that had ceased to draw inspiration from a natural end, wisdom, and virtue.

Rothbard sees Strauss as an icon of conservatism, pressing an invitation to return to the ancients, and as a critic of a modernity heralding the historicism and relativism that led to the impossibility of making judgments of binding value for the whole community. Affirming that values are subjective and, above all, can change with the times would make it impossible to pronounce any judgment on political regimes. Indeed, it should be recalled that Strauss is trying to restart the search for the best regime and a just society at a moment in history when Europe was being torn apart by Nazism. He is thus trying to find an answer to the “Western moral and political crisis” and to relaunch political philosophy, that is, “the attempt truly to know both the nature of political things, and the right, or good, political order.”⁶ In this light, the essay On Tyranny seems to take a stand against tyranny—an absolute evil. With his analysis of Hiero by Xenophon and his condemnation of the lack of any distinction between the king and the tyrant in Machiavelli’s work, Strauss is trying to show a way of warding off the dangers of tyranny. In this case, therefore, Rothbard’s comments regarding On Tyranny seem overly severe. By claiming not only the possibility but also the right to pass value judgments, Strauss is railing against value-free modern political science. Strauss maintains that

the new political scientist as pure spectator is not committed to any value; in particular, he is neutral in the conflict between liberal democracy and its enemies. ...One is thus led to wonder whether the distinction between facts and values, or the assertion that no Ought can be derived from an Is, is well founded. ...We conclude that the “relativism” accepted by the new political science according to which values are nothing but objects of desire is based on an insufficient analysis of the Is... and furthermore that one’s opinion regarding the character of the Is settles one’s opinion regarding the character of the Ought. ...At any rate, if a man is of the opinion that as a matter of fact all desires are of equal dignity, since we know of no factual consideration which would entitle us to assign different dignities to different desires, he cannot but be of the opinion... that all desires ought to be treated as equal within the limit of the possible, and this opinion is what is meant by permissive egalitarianism.⁷

In both What is Political Philosophy? and Thoughts on Machiavelli, Strauss criticizes modern thinkers and defends classical political philosophy. For the ancients, virtue rather than liberty is the true end of political life, and political philosophy is driven by the search for the best political order. And so, for Strauss, Machiavelli becomes the evil genius of modernity, challenging the ancient Christian teachings and freeing political reality from morality.

Concerning the Straussian conception, Rothbard questions the thesis that identified the modern theory of natural rights as a break with the past. He places more emphasis on continuity with the past rather than on a sharp division. According to the continuity thesis, individual natural rights derive from natural law. Rothbard underlines the Scholastic, Thomist, and Christian roots of the Lockean doctrine of natural rights. In the individualism of modern natural rights theory, Rothbard finds not a corruption but an enrichment of the natural law tradition, and the beginning of a new way to understand human means and political ends. Thus, while Rothbard appreciates the Straussian idea of natural law as a battle against the prevailing relativism of values, he is unable to accept Strauss’s invitation to his readers to reclaim “the classic natural right doctrine in its original form” that, “if fully developed, is identical with the doctrine of the best regime.”⁸

Rothbard cites Alessandro Passerin d’Entrèves in support of the theory that there was a link between Thomism and the Grotian development in the doctrine of natural law and writes that according to Passerin d’Entrèves the:

definition of natural law has nothing revolutionary. When he maintains that natural law is that body of rules which man is able to discover by the use of his reason, he does nothing but restate the Scholastic notion of a rational foundation of ethics. Indeed, his aim is rather to restore that notion which had been shaken by the extreme Augustinianism of certain Protestant currents of thought. When he declares that these rules are valid in themselves, independently of the fact that God willed them, he repeats an assertion which had already been made by some of the Schoolmen....

Grotius’s aim, D’Entrèves adds, “was to construct a system of laws which would carry conviction in an age in which theological controversy was gradually losing the power to do so.” Grotius and his juristic successors—Pufendorf, Burlamaqui, and Vattel—proceeded to elaborate this independent body of natural law in a purely secular context, in accordance with their own particular interests, which were not, in contrast to the Schoolmen, primarily theological.⁹

In An Austrian Perspective on the History of Economic Thought Rothbard states,

we should realize that the scholastics may have dominated medieval and post-medieval traditions, but that despite this fact, they were pioneers and elaborators of the natural law and natural rights traditions. The pitting of “tradition” versus “modernity” is largely an artificial antithesis. ...Locke may have been and indeed was an ardent Protestant, but he was also a Protestant scholastic, heavily influenced by the founder of Protestant scholasticism, the Dutchman Hugo Grotius, who in turn was heavily influenced by the late Spanish Catholic scholastics. ...While Locke developed libertarian natural rights thought more fully than his predecessors, it was still squarely embedded in the scholastic natural law tradition.¹⁰

Within this vision, the Rothbardian idea of a link between the laws of nature and natural rights becomes less distinct at the point where the author emphasizes the enrichment brought by the Levellers and Locke in terms of individualism. Rothbard says that while Aristotle’s vision of man led to the state being seen as the place of the good and virtuous action, “it was, in contrast, the Levellers and John Locke in seventeenth-century England who transformed classical natural law into a theory grounded on methodological and hence political individualism.”¹¹ The continuity thesis has recently been corroborated by the work of Brian Tierney who clearly questions the ideas of Strauss and Michel Villey on the contrast between an ancient Aristotelian doctrine of natural law and a modern theory of subjective individual rights.¹² While for Villey the modern theory of subjective rights has its roots in the nominalist philosophy of Ockham, Tierney identifies the concept of ius as a subjective right in the writings of the twelfth-century canonists. John Finnis and Germain Grisez also follow the continuity line, but they are really more Kantians than true Thomists.¹³ In point of fact, Finnis and Grisez integrate natural law with a deontological theory—with elements deriving from Kant.¹⁴

While not forgetting the many different positions taken by today’s supporters of the theory of natural rights, Rothbard can be counted among those who, like Henry Veatch, base natural rights on the Aristotelian/Thomist theory of natural law.¹⁵ However, Rothbard’s position is particularly original for two reasons: first, because from the concept of self-ownership, he deduces the axiom of nonaggression, the true cornerstone of the Rothbardian system, which he views as a clarification of the classic triad of the natural rights to life, liberty, and property;¹⁶ second, because of the extreme conclusions that Rothbard arrives at regarding natural law and the role of the state. In fact, Rothbard wants “to establish an objective ethics which affirms the overriding value of liberty, and morally condemns all forms of statism.”¹⁷

The theme of the rational foundation of ethics and absolute values becomes predominant in Rothbard’s comments on the Symposium on Relativism organized by the Volker Fund. The conference, held in 1960, witnessed a contrast between Mises and Leoni on one side, and Strauss on the other.¹⁸ Obviously, in this case, Rothbard sides with Strauss. From the time of his Prefatory Note, Rothbard makes it clear he is in favor of absolute values:

The absolutist believes that man’s mind, employing reason... is capable of discovering and knowing truth: including the truth about reality, and the truth about what is best for man and best for himself as an individual.

The relativist denies this, denies that man’s reason is capable of knowing truth, and does so by claiming that rather than being absolute, truth is relative to something else. ...Philosophically, I believe that libertarianism—and the wider creed of sound individualism of which libertarianism is a part—must rest on absolutism and deny relativism.¹⁹

This represents a clear—and apparently definitive—division within the Austrian School of economics, with Hayek and the Hayekians on one side and many of the American disciples of the School (among whom are libertarians à la Rothbard) on the other. The concept of natural law is in some ways extraneous to the Austrian School of economics, which favors an evolutionary conception of institutions and law following the approach of Menger and Hayek.

CRITICISM OF THE SUBJECTIVISM OF VALUES

THE CRITICISM OF MISES is paradigmatic. Rothbard distances himself from the praxeological and value-free defense of the free market that Mises proposes, and instead supports the need for political philosophy to find universally valid basic values for life in society. Mises bases his own liberalism on the subjectivity of values and ends, but for Rothbard this makes Mises an “ethical relativist;” and, in his opinion, ethical relativism is the “great defect in this paper.”

What I have been trying to say is that Mises’s utilitarian, relativist approach to ethics is not nearly enough to establish a full case for liberty. It must be supplemented by an absolutist ethic—an ethic of liberty, as well as of other values needed for the health and development of the individual—grounded on natural law, i.e., discovery of the laws of man’s nature. Failure to recognize this is the greatest flaw in Mises’s philosophical worldview.²⁰

The subjectivism of ends and values, and the defense of the free market from a praxeological point of view are correct procedures in the context of praxeology, but they do not satisfy the Rothbardian need for ethics to have a rational basis. Praxeology, the science of human action, tells us that the free-market economy is the best way of achieving the widest possible well-being and the whole variety of human ends—ends that are subjective, as are the values that underlie them. The subjectivity of values and ends is the nodal point of Misesian thought and the basis for an open society. Mises follows Hume’s assumption that it is impossible to derive values from facts. Since the economy is concerned with facts, it cannot have any direct implications for ethics. For Mises, value judgments merely express preferences of a subjective nature that could be considered neither true nor false. Rothbard disagrees with this view of ethics; one problem he sees with it is that it appeals only to subjective values to convince others that the best social system is the market economy. Mises thinks that the choice of the free market should be based on the consequences of such a preference. While not denying that value judgments are the expression of essentially subjective choices, Mises thinks that practically any informed person would choose the free market. In contrast, Rothbard holds that certain facts regarding human nature will produce objective judgments about what is best for man. Moreover, Rothbard does not consider Mises’s main arguments regarding capitalism fully satisfactory. Mises’s attempt to found capitalism on a subjective basis, albeit valid as far as it goes, requires a further supporting argument.

Rothbard is one of those authors who maintains that, in practice, few of our judgments are “pure” in the sense required by the facts-values dichotomy. Although it is not possible to derive prescriptive statements from facts, we can derive them from judgments on facts. This is Strauss and Philippa Foot’s position.²¹ Besides this, in Rothbard’s opinion, there are self-evident truths able to provide a basis for an objective ethics. The ownership of oneself, of one’s own body, is an example of such a truth. Mises rejects this position; and according to his way of thinking, criteria for objectively evaluating value judgments do not exist:

The ultimate end of action is always the satisfaction of some desires of the acting man. Since nobody is in a position to substitute his own value judgments for those of the acting individual, it is vain to pass judgment on other people’s aims and volitions. No man is qualified to declare what would make another man happier or less discontented.²²

Given his ethical subjectivism, Mises rejects the entire notion of natural law.

The teachings of utilitarian philosophy and classical economics have nothing at all to do with the doctrine of natural right. ...They recommend popular government, private property, tolerance, and freedom not because they are natural and just, but because they are beneficial.²³

Why does Rothbard resort to an argument of an ethical nature to support the free market? He must, after all, have been aware that the question of natural law is extremely controversial. Rothbard explains that Mises’s way of proceeding is correct in relation to praxeology, but it is nevertheless unable to tell us what is best for the human being. In brief, Mises’s reasoning does not satisfy the Rothbardian requirement of establishing an objective and rational basis for liberty. Mises shows that policies constraining the market economy would lead to undesired consequences for almost all people. Once this has been demonstrated, everyone should logically accept the market economy. Rothbard points out that the situation is not quite so simple, since some individuals could actually desire consequences such as shortages of goods, hunger, or poverty to occur. Alternatively, some could have a short-term interest in favoring heavily interventionist policies; others could be egalitarian even to the point of preferring equal poverty for all; still others could be nihilistic and desire a scarcity of goods or could complain about the excessive well-being of our society and its waste of resources. Some might have a short-term interest linked to interventionist policies and desire positions of power within the bureaucracy. These various possibilities contradict Mises’s conviction that all supporters of state intervention will become supporters of the free market once they have grasped the logical consequences of a reduction in market freedom.

Rothbard’s intention is to make his own argumentation in support of freedom more persuasive.²⁴ Anyone who understands all the benefits to be derived from the free market—well-being, peace, and cooperation—and is still against it, must address an argument of an ethical nature. According to Rothbard, this would be an objective and rational argument. He finds in natural law a guide to enable us to understand what are the best ends for man, i.e., what ends are in accordance with human nature. He writes, “The natural law... elucidates what is best for man—what ends man should pursue that are most harmonious with, and best tend to fulfill, his nature.”²⁵

The Aristotelian/Thomist formulation of the idea of a natural law plays a very important role in Rothbard’s theory, which takes up the idea of an order of natural laws that can be uncovered by reasoning:

In the Thomistic tradition, natural law is ethical as well as physical law; and the instrument by which man apprehends such law is his reason. ...Aquinas, then, realized that men always act purposively, but also went beyond this to argue that ends can also be apprehended by reason as either objectively good or bad for man.²⁶

Rothbard also reproaches Bruno Leoni regarding ethical relativism because Leoni was “scornful of the very idea that ethical values should be rationally demonstrated,” while “values should be demonstrated because reason is the only sure, solid ground of conviction about values.”²⁷ Again, when reviewing Freedom and the Law by Leoni, Rothbard criticizes Leoni’s theory because it lacks a standard on which to judge the content of laws that had evolved over time. It is not enough to affirm the existence of a spontaneous process from which customs and institutions developed; it is necessary to subject them to the strict test of reason in order to judge their conformity or otherwise with individual freedom on the basis of an objective ethical standard.²⁸

Rothbard, contra Mises, thinks it possible to deduce ethical principles from certain facts regarding human nature. He maintains that

Individual human beings are not born or fashioned with fully formed knowledge, values, goals, or personalities; they must each form their own values and goals, develop their personalities, and learn about themselves and the world around them. Every man must have freedom, must have the scope to form, test, and act upon his own choices, for any sort of development of his own personality to take place. He must, in short, be free in order that he may be fully human.²⁹

Rothbard’s formulation seems, at its heart, to be very close to the so-called Veatch School in that it is characterized by the rehabilitation of Aristotelian/Thomist metaphysics for the foundation of natural law and the consequent anchoring of natural rights.³⁰ Furthermore, even when Rothbard follows a deductive, axiomatic approach — beginning with the axiom of human action, which is considered a self-evident truth — this truth is founded on the nature of man, thus placing it in an Aristotelian/Thomist context, as opposed to the Kantian context in which the a priori truth of human action would be considered a consequence of the logical structure of the human mind.³¹ Instead, Rothbard derives the right of self-ownership from natural law, rather than considering it an axiom, since it is in harmony with what is supposed to be the natural end of the human being—the promotion of his own survival.

While the starting points for Rothbard and Veatch are very similar, the two authors differ profoundly as regards the concept of the common good and the role of the state. Veatch thinks that the state should be an instrument, the institutional framework by means of which all the rights of life, freedom, and ownership could be guaranteed, in order that each person can realize himself as a human being, i.e., realize the end that is in accordance with man’s nature. The concept of the common good is therefore strictly bound to this conception. The common good means that group of institutions allowing citizens within the polis to enjoy the necessary conditions for the good life or, rather, to live as human nature requires.³² For Rothbard, on the other hand, the concept of the justice of private property makes any kind of taxation—and therefore the state—unacceptable.

There are also profound differences with Passerin d’Entrèves, whom Rothbard quotes in support to the theory of the continuity between natural law and natural rights. He obviously does not agree with him regarding the conception of the state. The question of the relationship between Veatch and libertarianism merits further examination. In fact, as regards the idea of the common good not as an end in itself but rather as an instrument or an intermediate objective, Veatch declares his own intellectual debt to Douglas Den Uyl and Douglas Rasmussen. What is more, in Human Rights: Fact or Fancy? besides thanking the libertarians, he recognizes the stimulus and support he received from Den Uyl, Rasmussen, and Rothbard.³³

Although he says he is not a libertarian, Veatch clearly appreciates the support of the libertarians for individual rights and “their determination to find a proper philosophical justification for such rights.”³⁴ However, when Veatch goes on to consider the libertarian basis for individual rights, he seems to examine only one particular version of libertarian ethics, defined as ethical or rational egoism. According to rational egoism, the consequences of a lack of respect for agreed rights and obligations is so serious that everyone should consider it in his own personal interest to conform to the rules guaranteeing the respect of individual rights. Veatch writes, “rational individualism... is often associated with present-day libertarianism.”³⁵ While, on the one hand, it is possible to recognize the merits of rational egoism (in contrast to utilitarian ethics) in not sacrificing individual rights to the objective of the greatest happiness for the greatest number; on the other hand, Veatch thinks that “an ethics that is erected entirely upon considerations of rational self-interest is not really an ethics at all.” He further criticizes this type of libertarian ethics when he writes,

[W]ho can ever honestly believe that human beings can, by and large, be persuaded... to recognize that it is in their own interest to respect the rights of others to life, liberty, property, and all the rest; and that, seeing that such moral and law abiding behavior is in their own interest, they will then act accordingly? All of this seems, alas, highly unlikely.³⁶

In this way, Veatch reclaims and relaunchs the idea of anchoring natural rights in Aristotelian/Thomist metaphysics. What seems strange is that Veatch makes no reference whatsoever to Rothbard’s Ethics of Liberty, even though he recognizes that rational egoism is by no means the only form that libertarian ethics can assume. He also affirms that “libertarianism” is not a univocal term but one that encompasses various different strands of moral philosophy.³⁷ Rothbard follows a similar path to that of Veatch, founding natural law and natural rights on Aristotelian/Thomist metaphysics; and he demonstrates that he has taken up Veatch’s suggestions, to which he makes references on several occasions.³⁸ However, there seems to have been a more explicit and direct relationship between Henry Veatch and Den Uyl and Rasmussen, who were even closer philosophically to Veatch than Rothbard had been.

CRITICISM OF HAYEK:
HISTORICAL RIGHTS AND NATURAL RIGHTS

ROTHBARD’S CRITICISM OF HAYEK’S formulation, both evolutionist and fallibilist, is closely connected to the discussion of natural law. The fact that Hayekian and Rothbardian premises are irreconcilable emerges in the two reviews of Constitution of Liberty. To explain the reasons for liberty, Hayek starts from evolutionary and fallibilist positions that are inevitably going to contrast with the doctrine of natural law and rationalism, the latter being the premises for Rothbard ’s anarcho-capitalist theory. In Rothbard’s opinion, one of the shortcomings of Hayek’s work is that he totally ignores the tradition of natural law, even when discussing theorists who were actually great supporters of the doctrine of natural law, as in the case of John Locke. Hayek seems to be unaware of this great tradition of thought, which played such an important role in the growth of liberal ideas, in safeguarding the intangible individual sphere, and in limiting the powers of the state—and which, we should not forget, contributed so much to the history of constitutionalism itself, given the links between natural rights, contractualism, and constitutionalism.³⁹

As it happens, this subject is more complex than first appears. We have to bear in mind that Hayek uses evolutionary premises as a starting point for his thinking about the rule of law and law in general. It represents one of the greatest expressions of the tradition of spontaneous order developed by Adam Smith and Adam Ferguson in the Scottish Enlightenment and which, continued by Edmund Burke, led to Friedrich Carl von Savigny, Henry Maine, and Carl Menger and the Austrian School of economics. In Hayek’s work, the fundamental concept, and one of his most original ideas, is that of cultural evolution, which has to do with the origin and development of institutions such as religion, law, the market, and, in general, self-generating and self-regulating systems that shape a complex society. In this sense, for Hayek, rights are certainly not natural; but, given that they have evolved spontaneously, they cannot be termed artificial either.

A starting point in Hayek’s thought is the false dichotomy between natural and artificial, the latter term identifying the product of an intended project. This dichotomy obstructs the correct understanding of the process of cultural evolution that produced our traditions and our civilization. There is, however, an intermediate category of phenomena resulting from human action but not from human planning. Following the reasoning of the late Scholastics, the Spanish Jesuits who used the term naturalis to indicate social phenomena that had evolved over time,⁴⁰ Hayekian teaching explains that “In this sense, our traditional, spontaneously evolved morals are perfectly natural rather than artificial, and it would seem fitting to call such traditional rules ‘natural laws’.”⁴¹

In other words, something is natural if it has evolved spontaneously over time. What is important is to go beyond the false dichotomy that, by considering anything driven by a conscious plan as artificial and anything with instinctive characteristics as natural, brings us inevitably to a rationalist constructivism. This is why Hayek deplores the fact that the early signs of an evolutionist model to explain society have been abandoned in favor of a different conception of natural law understood as rationalist law, a law according to reason.⁴²

These are the theoretical premises that led Hayek to question some entrenched views in the history of political institutions. First and foremost is the idea that a normative system has been intentionally created by someone or is the result of an explicit agreement. For Hayek, both the assumption that a right is the fruit of the famous Bodinian sovereignty—the power to make and break laws—and the contractualist assumption are only the result of a constructivist rationalism that stands in the way of a correct understanding of the evolution of political and social institutions. It is a short step to the criticism of legal positivism, which, in fact,

proves on examination to be entirely based on what we have called the constructivist fallacy. It is actually one of the main offshoots of that rationalist constructivism which, in taking literally the expression that man has “made” all his culture and institutions, has been driven to the fiction that all law is the product of somebody’s will.⁴³

In the field of law, Hayek wants to rehabilitate the evolutionist teachings of Edward Coke and Matthew Hale, in stark contrast with Thomas Hobbes or, in more recent times, with Hans Kelsen. This is how things like jus gentium, mercantile law, the customary laws practiced at fairs, and common law took the form of a cosmos, that is, of a spontaneous order that made use of the knowledge scattered among different individuals, and in which no single mind had a planning or coordinating role. Following Nicola Matteucci’s ideas, it is therefore possible to conceive a Hayekian position that is not in direct contrast with the concept of natural law, understood, obviously, in terms of cultural evolution. Matteucci underlines the fact that for Coke and the English jurists, there was no contrast between natural law and common law, because the latter was simply the implementation of the natural law principles from which it developed historically over the centuries and with the consensus of many generations.⁴⁴

It is precisely in this sense that Edward Coke was able to write that the common law expressed the “perfection of reason... because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience growne to a such perfection.”⁴⁵

In a customary constitution, reason is immanent, but not the abstract reason of the rationalists; it is rather historical reason in which, in the English legal and political tradition, there is less of a rigid contrast between nature and history. In Matteucci’s opinion, even John Locke’s great work on natural law essentially speaks of a tradition that became rationalized and universal. Once again, we find the idea that what is natural is that which has evolved.

However, the question of the relationship between Hayek and natural law is certainly not easy to define. For example, Charles Covell came to place Hayek among the “defenders” of natural law, although he makes it clear that he considers Hayek a defender of natural law by virtue of his opposition to legal positivism, rather than for any connection with the natural-law tradition, which is totally lacking in Hayek’s work.⁴⁶ Covell says that there is another perspective from which Hayek refers to a “natural” model, a perspective that is, in a certain sense, linked to Matteucci’s ideas. Covell writes, “Hayek constructed an essentially naturalistic model of law which looked back to the tradition in legal philosophy of Coke and Blackstone.”⁴⁷ In this way, Hayek rejects both legal positivism, for its constructivism, and also the idea of the rule of law based on a voluntarist model derived from Thomas Hobbes. William Blackstone makes a particular use of the concept of natural law when, in order to demonstrate the moral basis of the English legal system, he defines English law as being based on the principles of natural law, established by God, that the human mind is able to discover. As a result, “the common law had been developed—or rather discovered—by the English courts in accordance with procedures of adjudication in which legal rules and precedents were established through an application to individual cases of the principles of morality and reasonableness that ran through the whole structure of English law.”⁴⁸

Thus, we find a “reasonableness” not unlike Edward Coke’s reason, which is founded in the common law by virtue of the historical process through which it has developed. Hayek favors English common law, law discovered by the judges, creating a spontaneous order. On the contrary, he is against the idea that had taken root in absolutist states, that the act of making and breaking laws is the essence of sovereignty—a deliberate act of the sovereign’s will.

Hayek also takes issue with Cartesian-based rationalism. This school of thought ignores the distinction between taxis and cosmos, i.e., between systems and associations whose formal structure is characterized by a constructed order, and those systems that, on the contrary, developed and took root by means of an evolutionary process and which could therefore be defined as spontaneous orders. Constructivist rationalism concentrates its attention exclusively on the institutions of the first type, overlooking the fact that intentionally constructed forms of human association are often supported on the wider base of a spontaneous order. Hayek counts the common-law legal system among those that can be characterized as a cosmos and ascribes it to the evolutionary rationalism that led to the configuration of the natural process that Covell defines as “legal naturalism.”⁴⁹ Covell explains that, in this sense, for Hayek, “law and legal institutions should be examined in their relation to the processes which governed the evolution of the customary and tradition-based practices embedded in actual historical communities.”⁵⁰ Having said this, it should nevertheless be emphasized that Hayek is above all a great defender of the rule of law and that he prefers the concept of cultural evolution to that of human nature.

The truly irreconcilable points between the evolutionist theory of law and Rothbard’s adherence to the concept of natural law are rationalism and fallibilism. One of Rothbard ’s severest reprimands is, in fact, “Hayek’s continuous and all-pervasive attack on reason.”⁵¹ In reality, Hayek’s attack is against the abuse of reason, against that constructive rationalism that leads to an infinite faith in the capacity of human reason to shape social and political institutions as it pleases. In order to avoid any misunderstandings, it should be noted that Hayek is not an anti-rationalist, saying, “it is therefore better in this connection not to distinguish between ‘rationalism’ and ‘anti-rationalism’ but to distinguish between a constructivist and an evolutionary, or, in Karl Popper’s terms, a naïve and a critical rationalism.”⁵²

Given these premises, Rothbard is unable to share the Hayekian idea of true and false individualism, which contrasts a rationalist tradition that is mainly French (in the Cartesian mold and moving toward a constructivist presumption) with a British, evolutionist, empirical and truly liberal tradition connected by Hayek to the Whig tradition. Rothbard criticizes the fact that thinkers of the caliber of Thomas Jefferson, Richard Price, Joseph Priestley, and Thomas Paine were undervalued and seen as “terrible rationalists.” Rothbard makes a further comment, and one that seems justified, concerning Hayek’s having overlooked the French liberal thinkers of the nineteenth century—such as Frédéric Bastiat, Gustave de Molinari, and Charles Dunoyer.⁵³ (Molinari, of course, was Belgian but was closely associated with the French liberals.) Ralph Raico recently made a similar criticism of the Hayekian categories of true and false individualism, among other things highlighting the fact that there is a great liberal tradition in France, represented by Benjamin Constant, Alexis de Tocqueville, and Jean-Baptiste Say, besides the abovementioned Bastiat, Molinari, and Dunoyer.⁵⁴

Thus, faith in the rational capacities of man to discover and correctly interpret the laws of nature and absolute ethical values is not really compatible with the evolutionist and fallibilist position. The foundations of liberty are completely different for Hayek and Rothbard. Hayek bases the reasons for liberty on our ignorance. The necessary starting point for his theory of a liberal society is fallibility, partiality, and the scattering of knowledge among particular situations in time and place among millions and millions of people. Given this, liberty becomes a direct consequence of the sharing and spreading of knowledge, which is a necessary condition for the unique and limited knowledge of individuals to be used in the best way. A liberal society in which there is peaceful cooperation and the division of labor is one that “can make use of so much more knowledge than the mind of the wisest ruler could comprehend.”⁵⁵ The value of individual liberty

rests chiefly on the recognition of the inevitable ignorance of all of us concerning a great many of the factors on which the achievement of our ends and welfare depends. If there were omniscient men, if we could know not only all that affects the attainment of our present wishes but also our future wants and desires, there would be little case for liberty. ...Liberty is essential in order to leave room for the unforeseeable and unpredictable; we want it because we have learned to expect from it the opportunity of realizing many of our aims.⁵⁶

For Rothbard, on the other hand, human ignorance is too uncertain a basis for liberty.⁵⁷ According to the authentic rationalist theory, we should be able to know what is best for man and to found absolute values on human nature.⁵⁸ Rothbard dismisses the Hayekian premises as an “attack on man’s reason.”⁵⁹ It seems to me, however, that precisely on this point, Rothbard’s position is even more debatable. The proposed anchoring of absolute values on a hypothetical eternal and unchanging kind of human nature raises legitimate questions. Norberto Bobbio, a supporter of the historicity of rights, contests the possibility of effectively searching for an absolute foundation when he says,

For centuries this illusion was common among advocates of the natural law, who believed they had safeguarded certain rights from any possible confutation by deducing them from human nature (although the rights were not always the same). However, human nature has proved to be a very shaky foundation on which to build an absolute principle for incontrovertible rights. ...Human rights constitute a variable category as is adequately demonstrated by the history of the last few centuries. The list of human rights has been modified and continues to be modified in changing historical circumstances: the requirements and interests of the ruling classes, the available means for their enactment, technological developments, etc. ...Thus rights are not fundamental by their nature. That which appears to be fundamental in a given historical era or civilization, is not fundamental in other eras or civilizations.⁶⁰

Guido Fassò emphasizes the role played by the doctrine of natural law as a means of rationalizing the law and as a basis for constitutionalism, but he adds that in order to preserve its function as a bulwark of liberty, natural law “must stop trying to express a system of absolute values, given for all time, outside history.”⁶¹ This is an invitation to recover an awareness of the historical and evolutionary character of law. Fassò goes on to say that it would be ingenuous “to mistake the values held in one age, and valid for that age, for eternal and immutable values.”⁶²

Thus, the attempt to establish what is absolutely good for man by appealing to “human nature,” which would really seem to be a cultural idea, demonstrates the great distance between Rothbard and Hayek’s evolutionary argument. In this sense, Rothbard’s criticism of Hayek is paradigmatic of the split we find today within the Austrian School of economics between the libertarians who refer back to Locke’s version of the idea of right reason that enables an understanding of natural law, and the heirs of the theory, typical of the Austrian School, of a limited, fallible, and evolutionist kind of knowledge. This contrast, already evident in the writings under consideration here, is made explicit and theorized more fully by Rothbard in his 1992 The Present State of the Austrian School of Economics, from which the profound differences between the various paradigms within the Austrian School emerge. In this paper, Rothbard takes his distance from “Hayek’s entire work,” in that it is “devoted to a denigration of human reason.”⁶³

Rothbard rightly points out that not all that has evolved spontaneously is consistent with a system of liberty and an open society. It would therefore be a mistake to accept passively all conventions and customs for the simple reason that they have already been established. According to the idea of cultural evolution, over the passage of time, the customs and institutions that take root are those best suited to the survival and development of a social group. Thus, if the Rothbardian criticism of Hayek as a historian of political thought does not seem to grasp the essence of his reflections, Rothbard does, however, highlight one of the more problematic areas of Hayek’s work. It is not only questionable whether the best institutions are always the ones to succeed, but there is also the problem of the long period of time required for the necessary changes to take place in any unfair institutions or customs. As a matter of fact, Hayek does not rule out the possibility of deliberate legislative corrections:

The fact that all law arising out of the necessity to articulate rules of conduct will of necessity possess some desirable properties not necessarily possessed by the commands of a legislator does not mean that in other respects such law may not develop in very undesirable directions, and that when this happens correction by deliberate legislation may not be the only practicable way out. For a variety of reasons the spontaneous process of growth may lead into an impasse from which it cannot extricate itself by its own forces or which it will at least not correct quickly enough. ...But such occasions when it is recognized that some hereto accepted rules are unjust in the light of more general principles of justice may well require the revision not only of single rules but whole sections of the established system of case law.⁶⁴

Therefore, even if reason does not have a planning and creative role in the field of the establishment of institutions, it is able and indeed has to play a corrective role. Covell underlines the fact that Hayek is not really barrenly anchored to tradition; rather he recognizes the fact that, “a system of predominantly judge-made law—such as English law—always stood in need of correction and amendment through an institutional procedure of statutory legislation.”⁶⁵

Moreover, it is perhaps worth noting that the concept of evolution is not completely foreign to Rothbardian ideas, even if it is not one of his characteristic lines of thought. In For a New Liberty, Rothbard makes reference to the development of the common law when he considers the possibility of a libertarian legal code. In doing so, Rothbard uses the same theoretical instruments as Bruno Leoni, who, as Raimondo Cubeddu notes, assimilates the rule of law to “the very same process of spontaneous social evolution that includes the market, religion, law and language.”⁶⁶

On this basis, Rothbard thinks that Hayek is a conservative, even if Hayek denies this in his concluding essay in The Constitution of Liberty, “Why I Am Not a Conservative.” Explaining the reasons he rejects conservatism, Hayek writes,

the main point about liberalism is that it wants to go elsewhere, not to stand still. ...It has never been a backward-looking doctrine. ...Liberalism is not averse to evolution and change; and where spontaneous change has been smothered by government control, it wants a great deal of change of policy. ...It would seem to the liberal, indeed, that what is most urgently needed in most parts of the world is a thorough sweeping away of the obstacles to free growth... the admiration of the conservatives for free growth generally applies only to the past... one of the fundamental traits of the conservative attitude is a fear of change, a timid distrust of the new as such. ...It is, indeed, part of the liberal attitude to assume that, especially in the economic field, the self-regulating forces of the market will somehow bring about the required adjustments to new conditions, although no one can foretell how they will do this in a particular instance.⁶⁷

Besides, Hayek’s attitude toward American institutions makes clear his position regarding tradition; he explains that “to the liberal they are valuable not mainly because they are long established or because they are American but because they correspond to the ideals which he cherishes.”⁶⁸ Thus, Hayek denies being a conservative, since he believes in free competition and in change. As observed by Sergio Ricossa in his introduction to the Italian edition of The Constitution of Liberty, “when you are for life, free growth, and spontaneous evolution, it is not possible to have greater esteem for a conservative party in the strict sense than a driver has for the brakes of his car, even if they are extremely useful.”⁶⁹

The authors of the introduction to the Italian edition of Law, Legislation, and Liberty find the demarcation line between conservatism and Hayekian thought in the fact that the great value of tradition lies, for Hayek, in its rational nature, because it has developed by means of an evolutionary and competitive process. In this way, the value of tradition does not consist in the “mere fact of there being traditions,” a characteristic feature of authentic conservative and reactionary thought.⁷⁰

CRITICISM OF THE CONCEPT OF COERCION IN HAYEK

THE CONCEPT OF COERCION is one of the issues that arouses Rothbard’s polemic force. He in part approves of Hayek’s initial definition of liberty as an “absence of interpersonal coercion,” but he considers that it marks the beginning of Hayek’s “descent into the abyss.”⁷¹ For Rothbard, the idea of coercion as a threat or intent to harm is excessively broad since it would allow, the possibility of identifying both a variety of coercive situations requiring protection by the government, but also a whole range of government activities that are not really coercive.

Here, it is first of all necessary to clear up a misunderstanding. As Hayek was keen to emphasize, the most significant thing in The Constitution of Liberty is not so much the definition of liberty as an absence of coercion, but rather as “that condition of men in which coercion of some by others is reduced as much as is possible in society.”⁷² Rothbard felt that coercion was the use of “physical violence or the threat thereof.”⁷³ According to Hayek, “By ‘coercion’ we mean such control of the environment or circumstances of a person by another that, in order to avoid greater evil, he is forced to act not according to a coherent plan of his own, but to serve the ends of another.” He goes on to say that, “Coercion occurs when one man’s actions are made to serve another man’s will, not for his own but for the other’s purpose.”⁷⁴

Hayek gave some examples to show clear cases of coercion; for example, the case of dismissal or threat of dismissal in periods of widespread unemployment, or in a mining town where the only possible work is as a miner. However, in Rothbard’s opinion, these cases do not demonstrate coercion, since the mine owner is only exercising his legitimate right of refusing “to make any further exchanges with one or more people.”⁷⁵ Another example of coercion given by Hayek was the case of the sole owner of a spring in an oasis who forces the local inhabitants to accept arbitrary conditions in order to obtain any water. Yet another possible case is that of the only doctor available who, in the face of a serious epidemic, refuses to treat any patients or requests exorbitant fees. In these cases, Rothbard thought that the subjects in question were simply exercising their own rights of private property or their rights to choose whether to engage in professional relations or not. Hayek nevertheless maintains that these are cases in which coercive government action would be justified in order to avoid a worse kind of coercion. He considers that some goods and services are essential for survival and therefore, “It is because these services are regarded as rights to be counted upon that a refusal to render them except on unusual terms is justly regarded as a harmful alteration of the environment and therefore as coercion.”⁷⁶

Hayek’s point is that in any case coercion

cannot be altogether avoided, because the only way to prevent it is by the threat of coercion. Free society has met this problem by conferring the monopoly of coercion on the state and by attempting to limit this power of the state to instances where it is required to prevent coercion by private persons. This is possible only by the state’s protecting known private spheres of the individuals against interference by others and delimiting these private spheres, not by specific assignation, but by creating conditions under which the individual can determine his own sphere by relying on rules which tell him what the government will do in different types of situations.⁷⁷

For Rothbard, however, the point is not to try to reduce coercion to a minimum by means of acts of coercion, but rather to eliminate it entirely, in that it is unjust and immoral. Rothbard’s position is usually of an integral kind, one that brooks no compromise. Obviously, he rejects the idea that a free society could grant the state a monopoly on coercion and that it could thus defend individuals from coercion, since, in his opinion, the state is itself the principal aggressor in society:

Therefore, since liberty requires the elimination of aggressive violence in society... the State is not, and can never be, justified as a defender of liberty. For the State lives by its very existence on the two-fold and pervasive employment of aggressive violence against the very liberty and property of individuals that it is supposed to be defending.⁷⁸

In Rothbard’s second comment on Constitution of Liberty, he gives a long list of state activities that Hayek considers justified and that he himself rejects categorically. These are functions ranging from public health to state provision of roads, state aid for the poor, government subsidies in the public interest, obligatory old-age pensions, and also include conscription in the event of foreign aggression, and many other typical government activities. Conscription, for example, is one of those issues about which libertarians are totally intransigent, considering it a form of downright slavery.

Hayek, instead, thinks it is certainly a very severe form of coercion but one that could be justified “to ward off the danger of worse coercion by an external enemy.”⁷⁹ The question of public health and of various kinds of welfare for the poor is part of the particular Hayekian concept of solidarity. Hayek feels that it goes without saying that the state should take care of those unable to provide for themselves and that a minimum level of subsistence should be guaranteed for all so that no member of society would lack for food, shelter, and medical treatment. Apart from proven cases of need that should rightly be borne by society as a whole, in reality Hayek proposes solutions to social-security problems that are not based on a state monopoly for certain activities. He only opts for obligatory insurance in fields such as old-age pensions and health care, on the basis of the observation that if certain state activities enjoy a monopoly, “the result is usually not only that those advantages soon prove illusory but that the character of the services becomes entirely different from that which they would have had if provided by competing agencies.”⁸⁰ In this way, the benefits of competition are lost and certain services become the dominion of bureaucratic hierarchies. For Hayek, it is precisely in order to safeguard some individuals from suffering coercion that state activities cannot be limited to maintaining law and order. Obligatory insurance, which Rothbard sees as invading the sphere of an individual’s liberty, means that the other members of society are not obliged to provide for other members in need.

The Hayekian argument concerning solidarity is linked to a particular conception. In a society in which the protective institutions of traditional society are no longer able to provide a safety net, it is only right that the community should assume the burden of the most critical situations. The legitimate functions of the state cannot be limited to ensuring observance of the law and defending the country against external enemies.

There is, however, yet another class of common risks with regard to which the need for government has until recently not been generally admitted and where as the result of the dissolution of the ties of the local community, and of the development of a highly mobile open society, an increasing number of people are no longer closely associated with particular groups whose help and support they can count upon in the case of misfortune. The problem here is chiefly the fate of those who for various reasons cannot make their living in the market, such as the sick, the old, the physically or mentally defective, the widows and orphans—that is all people suffering from adverse conditions which may affect anyone and against which most individuals cannot alone make adequate provision but in which a society that has reached a certain level of wealth can afford to provide for all.

The assurance of a certain minimum income for everyone, or a sort of floor below which nobody need fall even when he is unable to provide for himself, appears not only to be wholly legitimate protection against a risk common to all, but a necessary part of the Great Society in which the individual no longer has specific claims on the members of the particular small group into which he was born.⁸¹

Hayek justifies the fact that the state raises funds through taxation in order to offer a whole range of services that, for various reasons, cannot be supplied by the market. Regarding, for example, the management of public leisure services, theaters, public parks, or goods of cultural value, he favors decentralized management, not control at the national level. Alternatively, management could be entrusted to private institutions that would act as intermediaries, albeit he has no objections in principle to the public management of these goods.⁸²

A particularly sensitive point on which Hayek manages to provoke Rothbard’s criticism is education. Hayek is obviously not in favor of a state monopoly on education, since he is well aware of the dangers inherent in uniformity. He is for the widest possible pluralism and for competition in the field of education. He writes, “Indeed, the very possibility that, with a system of government education, all elementary education may come to be dominated by the theories of a particular group... should be sufficient to warn us of the risks involved in subjecting the whole educational system to central direction.”⁸³ Nevertheless, not only is he in favor of compulsory school attendance, but he also approves of the school-voucher system proposed by Milton Friedman. So, while he rules out a state educational system, he accepts the idea of public funding for schools. He says that

this does not mean, however, that compulsory education or even government-financed general education today requires the educational institutions to be run by the government. ...As has been shown by Professor Milton Friedman, it would now be entirely practicable to defray the costs of general education out of the public purse without maintaining government schools, by giving the parents vouchers covering the costs of education for each child which they could hand over to schools of their choice. It may still be desirable that government directly provide schools in a few isolated communities where the number of children is too small. ...But with respect to the great majority of the population, it would undoubtedly be possible to leave the organization and management of education entirely to private efforts, with the government providing merely the basic finance and ensuring a minimum standard for all schools where the vouchers could be spent.⁸⁴

These ideas are included on Rothbard’s list of Hayek’s partisan biases at the end of Rothbard’s review, “Letter on The Constitution of Liberty by F.A. von Hayek.” For this anarcho-capitalist, these are positions he cannot share, since, in his opinion, any public funding—and indeed anything pertaining to the state—should simply cease to exist.

Thus, for Rothbard, Hayek has not reached the target of establishing and defending liberty. The principle of the rule of law is itself too vague a concept and in any case insufficient as a principle on which to base the defense of liberty. For Hayek, the rule of law is the principal instrument with which to defend individual liberty. He explains that, “the rule of law constitutes a limitation on the powers of all government, including the powers of the legislature.”⁸⁵ For the rule of law to prevail in a society, each law must meet certain basic requirements: it has to be general and abstract, known and certain and, lastly, it has to be the same for all. The function of the rule of law is to create the conditions within which individuals can act freely and follow their own goals on the basis of their own knowledge. Hayek feels that, “the task of the lawgiver is not to set up a particular order but merely to create conditions in which an orderly arrangement can establish and ever renew itself.”⁸⁶

Hayek’s response to Ronald Hamowy’s criticisms provides a useful explanation of the function of the rule of law:

It is the distinguishing mark of the Western political tradition that... coercion has been confined to instances where it is required by general abstract rules, known beforehand and equally applicable to all... combined with the requirement that such general rules authorizing coercion could be justified only by the general purpose of preventing worse coercion... this principle seems to be as effective a method of minimizing coercion as mankind has yet discovered. It seems to me the best protection yet devised against that administrative despotism which is the greatest danger to individual liberty today.⁸⁷

ROBERTA A. MODUGNO