Chapter Four, Freedom, Reason, and Tradition; The Constitution of Liberty

ISBN 0-226-32084-7, University of Chicago Press | 1960 | Friedrich A. Hayek

[annalex]

applies only to animating the Legislative force.

Why do you say that? The Natural Law finds its implementation in the customary case law, not in the statutes.

[KC Burke]

I agree the common law is an entrypoint as well. My oversight due to thinking about the issues on this old thread The Case For and Against Natural Law (or Bork's Side-step)

In that thread, the point is made that Executives, sworn to a specific oath; and Judges, judging under a statute, all are best kept free of the tempation of resorting to their transitory opinion of Natural Law to over rule thier sworn obligation as office holders.

[annalex]

That is a thought-provoking thread, thanks for the link.

I have a counter-argument.

Consider that the statures are produced by politicians. Here's a breed that does nothing but resorting to the transitory opinion. Whose opinion? The majority's. So, are we better off under transitory opinion of Natural Law as held by students of law, or under transitory opinion of two wolves outvoting a sheep in preparation for dinner?

Is there a natural check to the judges' vanity under customary law? There are two. One is procedure: a judge who overturns a precedent better have all his procedural ducks in a row, or else his reputation would sink. The other, connected to the first, is something analogous to market mechanism operating in jurisprudence. At the root of justice is an agreement by the two parties to submit to a particular court. Well, under common law, there is a choice of venue, since no government is there to make rules pegging litigants to a venue. This creaters a mechanism that bypasses judges known for arbitrariness.

Are we going off topic?

[KC Burke]

Off topic is not a problem as long as no one is posting to this big montster.

Your judges then, are the Philosopher-King of Plato as opposed to corruptible representatives.

I'm afraid that mankind is too dedicated to Participatory modes of government to ever retreat to that playing field.

The real rule for that transitory opinion issue is to restore a widely understood sense of Deliberative Representation as opposed to pliebisitory representation. Burke's speach to the Electors at Bristol, etc. George Will has written some excellent discourse on that as well in Restoration

The more power collected in the Judiciary, the more that avarice and personal whim will alway overwhelm the pride and reputation checks in many holding the office.

As Hayek says above in a number of ways, the variety and complexity of the institutions and forms of law themselves aid in their ability to withstand corruption and personal will.

[annalex]

Speaking of kings, I regret not substituting "hundred sheep outvoting the shepherd" for the banal reference to two wolves above. Yes, after some wandering around in libertarian pastures, I came to the conclusion that feudalism safeguards freedom better than constitutional republic.

Does progress toward freedom necessarily require going back? Modern life allows for multiple overlapping vassal-suzerain relationships that are not based on territorial proximity. These are relationships we form for physical protection (less and less locally centered; the Pentagon presently insists that my physical protection is to be found in skies over Bagdad), protection from fraud (where is Visa? where is FBI?), or insurance (where is Prudential?), or even, were I sufficiently rich, jurisprudence (where is Shapiro?). I don't want to control these professionals through the voting booth and of course I cannot. What I want is to switch providers, -- not only of justice, but of all these functions the government seems to be in charge of, when I feel like it. That is new feudalism, that is also freedom.

[unspun]

"Ahrendt" ahrendt the right letters.
"Arendt" ahre.

[VadeRetro]

Those British philosophers have given us an interpretation of the growth of civilization that is still the indispensable foundation of the argument for liberty. They find the origin of institutions, not in contrivance or design, but in the survival of the successful. Their view is expressed in terms of “how nations stumble upon establishments which are indeed the result of human action but not the execution of human design.” It stresses that what we call political order is much less the product of our ordering intelligence than is commonly imagined. As their immediate successors saw it, what Adam Smith and his contemporaries did was “to resolve almost all that has been ascribed to positive institution into the spontaneous and irresistible development of certain obvious principles—and to show how little contrivance or political wisdom the most complicated and apparently artificial schemes of policy might have been erected.”

Natural selection.

[KC Burke]

You wouldn't believe it if I told you which site Monarchist you are beginning to sound like....

[KC Burke]

Let me know your thoughts this weekend, if you have time. Thanks.

I hope it is clear why I felt it pertained to comments on the other thread.

[annalex]

Try me, I may believe you.

I was recently told that one James Dale Davidson, formerly from the National Taxpayers Union, has similar ideas.

Monarchism received a huge boost from Hans Helmut Hoppe, who noted that monarchy neatly resolves the Tragedy of the Commons, because under a monarchy the king owns the commons.

This doesn't make me primarily a monarchist, although I won't reject the label. "Feudalist" would be a better one. I believe that the Western Civilization got off track with the invention of absolute monarchy and nation-state circa 1500. The revolutions of 17 and 18 centuries were an attempt to slow down the erosion of freedom inherent in nationalist absolute monarchy by introducing democratic management of the commons. Some slowdown did occur, but the attempt has proven unsuccessful over time. At this point a restoration of even an absolute monarchy might be an improvement.

[missileboy]

PING

[Free the USA]

fyi

[cornelis]

Hayek cautions against rationalism.

[Hank Kerchief]

Hayek cautions against rationalism.

Very dangerous!

Hank

[KC Burke]

I forgot to ping this to you last week.

[HumanaeVitae]

Hayek cautions against rationalism.

"A madman is not one who has lost his reason. A madman is one who has lost everything but his reason." -Chesterton

[Hank Kerchief]

"A madman is not one who has lost his reason. A madman is one who has lost everything but his reason." -Chesterton

I rather like Chesterton but occasionally he said something really asinine. This is a good example.

Hank

[missileboy]

To summarize my thoughts, I don't see any conflict between Hayek's thoughts and the libertarian model. The way I see it, the conservatives of today (often referred to as "neocons") have split off from the mindset that this piece describes (i.e. true "conservatism").

[KC Burke]

, I don't see any conflict between Hayek's thoughts and the libertarian model.

I am always glad to hear someone labeling themselves a libertarian say that. I'm glad because old fashioned conservatism is also not in conflict with what Hayek says here.

I know their are those of either label however that are in conflict. They have certain ideological "rationality" that puts them at odds with all of Chapter Four.

[KC Burke]

I know their are... = I know there are...