Thoughts on Hayekian liberty and democracy

Some scattered thoughts, while rereading The Constitution of Liberty:

I'm not very surprised by how close he is here to something like Pettit's republicanism. But I am surprised by the similarities between his view of law's generality and Rousseau's. (This is what comes of having a terrible memory, and even worse note-taking habits.)

Now, Hayek focuses on the formal (abstractness, generality) rather than procedural (mode of enactment) aspects of law ... mostly. But in his Chapter 10 discussion of law and coercion, he comes quite close to Rousseau's insistence on law's double generality. For Rousseau (Social Contract II.6), only norms that are willed by the people as a unified whole and applied to the people as a unified whole may be properly considered laws. Laws can have differentiated effects, and even establish separate groups of citizens, but only if the people wills it as a general, undifferentiated whole. This doesn't mean unanimity, but it does require an absence of faction.

So, too, with Hayek: "There may be rules that can apply only to women or to the blind," and this is inevitable, since "only a woman, for example, can be raped or got with child" (154). But what would keep laws touching on such matters from being arbitrary would be their status as "equally recognized as justified by those inside and those outside the group." As with Rousseau, this doesn't mean unanimity but rather a sort of anti-factionalism.

Hayek acknowledges this debt explicitly in a later section (194). But what I find interesting is that he doesn't do much with the procedural side of things; indeed, he's at pains to argue that liberalism has only a limited, instrumental connection to democracy (ch. 7). And in chapter 1, he insists that the "political freedom" of self-government is quite distinct from liberty proper, and represents the metaphorical extension of the latter concept to collectivities (a "free people," etc.).

But even the most expansive versions of political liberty (institutionalizing the equality of political power, let's say) are implicated in Hayek's anticoercion--this is what I take to be the moral of Rousseau's double generality. The negative argument is straightforward: if a new law is passed that only a minority recognizes as justified, each individual of the majority has reason to feel that it is thereby being made subject to another's arbitrary will, insofar as a 'minority rules' decision procedure implies some degree of differentiated status that falls afoul of the 'arbitrariness' criterion. Supermajoritarianism presents analogous, though less severe, difficulties. In the easiest case, the status quo bias implicit in supermajoritarian decision rules might be seen as benefitting a discrete set of persons and lasting only through their efforts, in which case it represents the enforcement of their arbitrary will. Even if this isn't true, however--even if opposition to the status quo takes the form of cross-cutting majoritarian coalitions--the individuals within those coalitions will have reason to feel that they are subject to the arbitrary will of the governing coalitions of the past.

Obviously no one can make a complaint on these grounds who simultaneously wishes to enact a law that would, by his own lights, count as furthering oppression. But as Jeremy Waldron insists, questions of authority go precisely to cases when we disagree about matters of justice and liberty; and the liberal who finds his anti-oppression law frustrated by supermajoritarian decision-rules has a legitimate complaint on procedure, not merely substance--a complaint his opponents should acknowledge as well-founded insofar as they too consider themselves liberals.

Best. Originalism. Article. Ever.

I'm sure you're all eager to hear my thoughts on Mitchell Berman's "Originalism Is Bunk" article. So here they are:

1. This is awesome. He gets everything right. Best. Originalism article. Ever.
2. Damn. Damn, damn, damn. So much for my writing the definitive refutation of conceptual originalism. Curse you, Mitchell Berman.

There's more to say, of course--Larry Solum has yet to concede defeat, so the fight must go on--but I really do think Berman has thoroughly refuted the extant "hard" originalist claims. To respond, originalists will need to articulate and defend an account of conceptual content sophisticated enough to deal with the fact the disagreement over the nature of constitutionalism and constitutional law extends all the way down when elaborated at any level of specificity. And this they have yet to do.

This, I think, has to be the next step. Perhaps pragmatic inferentialism will have a large part to play here; perhaps not. But, like Berman, I suspect "strong originalism" will lose its attractiveness as a interpretive theory.