WEBVTT NOTE Hayek on Spontaneous Order and Constitutional Design 1 00:00:00.000 --> 00:00:09.000 I want to talk about a kind of little-noticed dimension of Friedrich Hayek's political thought, namely his constitutional theory. 2 00:00:09.000 --> 00:00:14.000 I have a paper coming out on this subject that's going to be published in the Independent Review this summer. 3 00:00:14.000 --> 00:00:21.000 It'll be the summer edition of the Independent Review, volume 15, that talks about some of the things I'm going to talk to you about today. 4 00:00:21.000 --> 00:00:28.000 I'm grateful to them for publishing my work, and I hope that you'll take a look at it and look at the other good articles that will appear in that edition. 5 00:00:28.000 --> 00:00:36.160 I'm going to go ahead and start with the punch line. Many of you are probably familiar to 6 00:00:36.160 --> 00:00:41.480 some extent or another with Hayek's economic and political writings. We all owe him a great 7 00:00:41.480 --> 00:00:46.520 intellectual debt, anybody who is interested in individual freedom. In volume three of 8 00:00:46.520 --> 00:00:50.800 Law, Legislation, and Liberty, his important three-volume work, he outlines, among other 9 00:00:50.800 --> 00:00:57.480 things, an ideal constitution. His ideal constitution is not intended to be a draft for a real-world 10 00:00:57.480 --> 00:01:27.480 Constitution. In this respect, it is supposed to be thought-provoking. It's supposed to tell us something. It's supposed to tell us something about ideas, much like his own intellectual forebearer, David Hume, wrote about in The Idea of a Perfect Commonwealth. It's supposed to tell us something about constitutionalism. It's not supposed to tell us what a real constitution necessarily ought to be like. And so that's my focus today. And as I say, I'm going to go ahead and tell you what the punchline is. The punchline is this. In Friedrich Hayek's political thought, and I'm absolutely 11 00:01:27.480 --> 00:01:32.480 I'm absolutely convinced that this is also the case, this is the truth, a political truth, 12 00:01:32.480 --> 00:01:37.480 that if you want to have a free society, it is really essential in the long run, 13 00:01:37.480 --> 00:01:42.480 a phrase as most of us know, Hayek believes to be an important perspective, right? 14 00:01:42.480 --> 00:01:47.480 That it really matters whether or not people in the society believe and want, 15 00:01:47.480 --> 00:01:52.480 believe in individual freedom as a value and want to live in a free society. 16 00:01:52.480 --> 00:01:56.480 If people don't really want that, they're not going to have it for long, 17 00:01:56.480 --> 00:01:59.840 even if it is bequeathed to them by their ancestors. 18 00:01:59.840 --> 00:02:01.400 So that's the punchline. 19 00:02:01.400 --> 00:02:04.440 Hayek, I think, manifests great political wisdom 20 00:02:04.440 --> 00:02:06.160 in his writings in saying this. 21 00:02:06.160 --> 00:02:09.220 And as I say, he outlines this in this ideal constitution. 22 00:02:09.220 --> 00:02:11.320 So I want to flesh that out for you 23 00:02:11.320 --> 00:02:13.040 and encourage everybody to read that book, too, 24 00:02:13.040 --> 00:02:15.400 if you haven't before, volume three 25 00:02:15.400 --> 00:02:17.600 of Law, Legislation, and Liberty. 26 00:02:17.600 --> 00:02:18.440 Okay. 27 00:02:19.840 --> 00:02:20.680 Opinion. 28 00:02:21.960 --> 00:02:24.260 Power ultimately rests on opinion. 29 00:02:24.260 --> 00:02:25.780 We learned this from David Hume. 30 00:02:25.780 --> 00:02:49.780 And we also hear this in Friedrich Hayek, constitutional design in Hayek's view is an appropriately designed constitution is a necessary, but not a sufficient condition to preserving a liberal or free society, spontaneous order in society is the linchpin of his economic and political thought. 31 00:02:49.780 --> 00:02:54.780 By spontaneous order, what we mean are self-organizing social phenomena. 32 00:02:56.780 --> 00:03:03.780 In the market, spontaneous order presents itself by means of market prices, 33 00:03:03.780 --> 00:03:08.780 which condense information that is widely dispersed among people in society 34 00:03:08.780 --> 00:03:11.780 about things that are available, about things that people want, 35 00:03:11.780 --> 00:03:18.780 and it gives us that information in an abstract form in terms of market prices. 36 00:03:18.780 --> 00:03:29.780 It congeals that information or condenses that information that really could not feasibly be gathered and put together in directions to people as to what they ought to do with their resources. 37 00:03:29.780 --> 00:03:34.780 This is part of the great magic, if you will, of the market. 38 00:03:34.780 --> 00:03:45.780 Now, cultural evolution is another instance of a self-organizing social process or form of spontaneous social order that we find in Hayek's writings. 39 00:03:45.780 --> 00:03:57.780 It is not the same as the market, but it uses the same kind of self-organizing principle to organize itself. 40 00:03:57.780 --> 00:04:05.780 With cultural evolution, the end products, rather than being market prices that give people direction as to how they should use their resources, 41 00:04:05.780 --> 00:04:13.020 resources. Instead, with cultural evolution, the end results are cultural rules or traditions 42 00:04:13.020 --> 00:04:20.160 that are similar to market prices in a couple of ways. One is they condense or congeal information 43 00:04:20.160 --> 00:04:25.800 that could not feasibly be brought together and given people instructions on this is what 44 00:04:25.800 --> 00:04:30.920 will work, this is what won't work. It is similar to cultural evolution in a second 45 00:04:30.920 --> 00:04:39.920 in a different way in that it's the product of the actions of a great many people over it can be over time in the case of cultural evolution. 46 00:04:39.920 --> 00:04:44.920 It is also similar to the spontaneous order of the market and that involves competition. 47 00:04:44.920 --> 00:04:51.920 Whereas market, the spontaneous order of the market is produced by competition among individuals and firms, 48 00:04:51.920 --> 00:04:57.920 the spontaneous order represented in cultural evolution is produced by competition among groups. 49 00:04:57.920 --> 00:05:07.920 With Hayek's theory of cultural evolution, the evolution of evolved rules that give us guidances to what would be the most effective ways to behave, 50 00:05:07.920 --> 00:05:14.920 these are produced by competition among groups following different social rules. 51 00:05:14.920 --> 00:05:24.920 Those rules that prove most effective, and I'll use scare quotes to say effective, will tend to produce a larger number of people following them. 52 00:05:24.920 --> 00:05:47.920 This is like Darwinian evolution in that the rule, the behavior that most effectively fits an ecological niche, that is, it works the best in reproducing itself by having a larger number of people following it, is one that will eventually become the dominant one in society. 53 00:05:47.920 --> 00:05:57.920 Rules that are followed by a lesser number of people will tend to die out and become characterized of a smaller part of society. 54 00:05:57.920 --> 00:06:09.920 So the end result of intergroup competition among social rules is that those which tend to reproduce themselves most effectively are going to be the ones that are most widely followed. 55 00:06:09.920 --> 00:06:20.920 What this means is rules that tend to produce greater amounts of wealth and prosperity for the individuals and for the families and for the communities that are following them. 56 00:06:20.920 --> 00:06:36.920 Over centuries, if you look historically, Hayek points out, this kind of process produced the division of labor, the belief in contracts as being obligating, 57 00:06:36.920 --> 00:06:41.920 Not just by law and so forth, but we believe that we're supposed to keep our promises to other people 58 00:06:41.920 --> 00:06:44.920 when we've entered into them with others in business and the like. 59 00:06:44.920 --> 00:06:49.920 And also a belief in the importance of private property, that we should respect the property that other people have 60 00:06:49.920 --> 00:06:51.920 and that other people should respect our property as well. 61 00:06:51.920 --> 00:06:56.920 Belief in contract, belief in private property, belief in individual responsibility, 62 00:06:56.920 --> 00:07:00.920 that each individual or each family is responsible for the things that happen to them. 63 00:07:00.920 --> 00:07:12.420 and also a willingness to accept a kind of society in which the rewards that people receive are dependent upon the value of the goods and the services that they provide to other people. 64 00:07:12.420 --> 00:07:16.920 Now, all these things are values. They're things that you can believe in or you cannot believe in. 65 00:07:16.920 --> 00:07:27.420 But one of the things that Hayek is telling us is that over the centuries in Western civilization, the centuries of intergroup competition have left us with these values. 66 00:07:27.420 --> 00:07:41.420 And these are the values that support what he calls the extended order, which is a modern industrial society, the kind of society that we live in, the kind that you find in Western Europe and North America and so on. 67 00:07:41.420 --> 00:07:56.420 So Hayek is presenting a factual argument, which is, you know, you could dispute whether or not it's a scientific argument, but he's saying factually this is where the moral traditions that we have came from, 68 00:07:56.420 --> 00:07:58.420 This kind of process. 69 00:07:58.420 --> 00:08:02.420 And he's also saying that the free society that we live in, 70 00:08:02.420 --> 00:08:05.420 the free societies that characterize the United States and North America, 71 00:08:05.420 --> 00:08:08.420 are the products of this kind of cultural evolution. 72 00:08:08.420 --> 00:08:12.420 So cultural evolution in that sense is what supports the freedom 73 00:08:12.420 --> 00:08:18.420 that we individually and collectively enjoy in the modern West. 74 00:08:18.420 --> 00:08:23.420 Now, the rule of law. 75 00:08:23.420 --> 00:08:29.920 This is a second part of what we're going to talk about in terms of Hayek's constitutional thought. 76 00:08:29.920 --> 00:08:35.920 By the rule of law, I was talking before I got started about what the group is like, 77 00:08:35.920 --> 00:08:38.420 and there's really no way to anticipate what the group is like. 78 00:08:38.420 --> 00:08:43.420 Probably a lot of you are as well-versed as I am in Hayek, and probably some of you it's relatively new to. 79 00:08:43.420 --> 00:08:48.420 So I'm going to go ahead and talk for a few minutes about Hayek's conception of the rule of law. 80 00:08:48.420 --> 00:08:51.420 Hayek describes the rule of law as a meta-legal doctrine. 81 00:08:51.420 --> 00:08:56.420 The Theory of Money and Credit 82 00:09:21.420 --> 00:09:35.420 It's a general rule. It applies across the board. And then secondly, it is universally applied. It applies to everyone whenever their conduct, depending on the content of the rule, comes under the scope of that rule. 83 00:09:35.420 --> 00:09:40.420 Hayek's idea of the rule of law means that the same rules apply to everybody in the same way. 84 00:09:40.420 --> 00:09:49.420 This embodies a conception of justice, but it's still not a specific, substantive idea of justice. 85 00:09:49.420 --> 00:09:51.420 It's just an idea about what justice is. 86 00:09:51.420 --> 00:09:53.420 It's just an idea about what justice is. 87 00:09:53.420 --> 00:09:59.420 Hayek's idea of the rule of law means that the same rules apply to everybody in the same way. 88 00:09:59.420 --> 00:10:08.420 It's not a specific, substantive idea of justice, it's just an idea about what justice should be like, or what rules should be like. 89 00:10:08.420 --> 00:10:17.420 Now we're going to talk a little bit more about what Hayek means when he talks about a sense of justice, or when he talks about what I call a sense of justice in his work. 90 00:10:17.420 --> 00:10:28.420 But the rule of law is supposed to operate as a limit on power, limit on governmental power, because if this is a rule about what the law can be, 91 00:10:28.420 --> 00:10:44.420 A normative constraint on what the law can be. There are some things government can't do. Government can't issue commands to particular individuals or groups saying you shall do this because that doesn't satisfy this normative criterion of the rule of law. 92 00:10:44.420 --> 00:10:52.420 This is very different than what we think of as being constraints on government's power, say in the United States. 93 00:10:52.420 --> 00:10:58.420 We have a written constitution that spells out certain things that the government can do and it says some things that they can't do. 94 00:10:58.420 --> 00:11:02.420 This is very different. It's important to note that this is actually quite different. 95 00:11:02.420 --> 00:11:05.420 This is a very general abstract idea about what laws can be. 96 00:11:05.420 --> 00:11:08.420 It doesn't say anything really about the content of the law. 97 00:11:08.420 --> 00:11:11.420 It just says about, you know, this is what laws are going to be like. 98 00:11:11.420 --> 00:11:19.420 And if it doesn't take this form, does not take this form, a general rule that applies to everyone in the same way, then it can't be a law. 99 00:11:19.420 --> 00:11:30.740 Now the problem Hayek is really concerned about when he comes up with this ideal constitution 100 00:11:30.740 --> 00:11:37.220 in volume three of Law, Legislation and Liberty is interest group politics. Parties in the 101 00:11:37.220 --> 00:11:43.620 modern West he sees quite correctly as consisting of coalitions of interest groups. There's 102 00:11:43.620 --> 00:11:47.860 a political scientist, Robert Dahl, wrote a long time ago. It's an old, old book now 103 00:11:47.860 --> 00:11:57.860 Over 40-some years old, he says that in modern democratic governments, what we have is what he called Minority's Rule. 104 00:11:57.860 --> 00:12:06.860 Minority's Rule. There are coalitions of interest groups that get together and form temporary majorities and enact public policy. 105 00:12:06.860 --> 00:12:14.860 And everybody gets something that they want. Nobody might like all of it, but everybody gets something that they want. 106 00:12:14.860 --> 00:12:17.860 That's what makes it democratic. That's what makes government responsive. 107 00:12:17.860 --> 00:12:22.860 Now, Dahl is a group theorist. This was a long time ago. 108 00:12:22.860 --> 00:12:27.860 But this represents kind of the common thinking among political scientists anyway, 109 00:12:27.860 --> 00:12:30.860 about what government in modern democracy should be like. 110 00:12:30.860 --> 00:12:34.860 Everybody gets something. They might not want all of it, but everybody gets something, right? 111 00:12:34.860 --> 00:12:37.860 Now, somebody here is going to be able to tell me. 112 00:12:37.860 --> 00:12:42.860 What do we call a result that you might like something about it, 113 00:12:42.860 --> 00:12:45.260 Nobody would choose the entire result. 114 00:12:45.260 --> 00:12:47.160 What would we call that? 115 00:12:47.160 --> 00:12:49.060 It's a suboptimal result, right? 116 00:12:49.060 --> 00:12:51.460 It's something that nobody actually wants. 117 00:12:51.460 --> 00:12:54.960 So what they're describing is, well, I got something I wanted, 118 00:12:54.960 --> 00:12:59.380 but what I'm getting overall is actually what I don't want. 119 00:12:59.380 --> 00:13:01.940 So in this vision of democratic government, 120 00:13:01.940 --> 00:13:05.620 what you get is actually what you don't want. 121 00:13:05.620 --> 00:13:07.340 This is a problem that Hayek sees 122 00:13:07.340 --> 00:13:09.500 with modern democratic governments. 123 00:13:09.500 --> 00:13:17.300 and it's a problem that he seeks to address by telling us something about what constitutional government ought to be like. 124 00:13:17.300 --> 00:13:19.260 So let's take a look at his ideal constitution. 125 00:13:19.260 --> 00:13:28.100 Now again, as I said, his ideal constitution is not something that we would actually sit down and draw up and act as a group to govern ourselves. 126 00:13:28.100 --> 00:13:36.700 It's more to tell us about what constitutional and limited government should be like. 127 00:13:36.700 --> 00:13:39.700 His constitution, again, is a formal idea. 128 00:13:39.700 --> 00:13:44.700 It consists primarily not of what we think of in the United States as a constitution, 129 00:13:44.700 --> 00:13:49.700 which is, you know, you have an article that sets out the powers of Congress, one of the presidents, and so forth. 130 00:13:49.700 --> 00:13:52.700 He does have that, although he doesn't actually have it all written out. 131 00:13:52.700 --> 00:13:56.700 But the key point of it is what he calls a basic clause in the constitution. 132 00:13:56.700 --> 00:13:59.700 And this is what describes the rule of law, okay? 133 00:13:59.700 --> 00:14:02.700 It describes what I talked about before as being the rule of law. 134 00:14:02.700 --> 00:14:10.700 Laws have to be general, rules, abstract, and that they don't apply to just particular people, but that they apply to everybody. 135 00:14:10.700 --> 00:14:15.200 So they're general or abstract rules, and second, that they apply to everybody equally. 136 00:14:15.200 --> 00:14:17.200 That's the basic clause of his Constitution. 137 00:14:17.200 --> 00:14:25.200 If a law, a proposed law, doesn't satisfy that description of a law, it's not going to be a law. It can't be a law. 138 00:14:25.200 --> 00:14:28.200 In our parlance, it would be unconstitutional. 139 00:14:28.200 --> 00:14:54.200 Hayek has a bicameral legislature, a word about bicameral legislature and separation of powers in the United States. 140 00:14:54.200 --> 00:15:00.200 Hayek has kind of an interesting twist on the idea of a bicameral legislature in the separation of powers. 141 00:15:00.200 --> 00:15:04.200 In the United States, we have a separation of powers, right? 142 00:15:04.200 --> 00:15:09.200 We have a judiciary, executive, and legislative branches of government. 143 00:15:09.200 --> 00:15:10.200 That's our separation of powers. 144 00:15:10.200 --> 00:15:12.200 We have checks and balances. 145 00:15:12.200 --> 00:15:18.200 That is, in order for one of the branches to accomplish something, it has to obtain the cooperation of the other branches. 146 00:15:18.200 --> 00:15:22.200 You know, Congress can pass a law, but then the president has to sign it into a law. 147 00:15:22.200 --> 00:15:46.200 Our separation of powers in the United States is of interest in that it was intended by the Framers to reflect differing social interests between larger states and smaller states. 148 00:15:46.200 --> 00:15:48.200 That's why they're elected in a different way. 149 00:15:48.200 --> 00:16:17.900 Hayek's Upper Chamber, which he calls the Legislative Assembly, is the part of government that enacts 150 00:16:17.900 --> 00:16:21.740 Rules of Conduct for Individuals, Firms, and so forth. 151 00:16:21.740 --> 00:16:23.180 The law that we think of. 152 00:16:23.180 --> 00:16:26.540 This is what you shall or shall not do. 153 00:16:26.540 --> 00:16:33.540 The lower chamber of his legislature, which he calls the governmental assembly, can formulate 154 00:16:33.540 --> 00:16:39.980 public policy, try to resolve or address social problems, but it has to do it subject to the 155 00:16:39.980 --> 00:16:43.740 constraints, legal constraints, that are established by the upper chamber. 156 00:16:43.740 --> 00:16:45.980 Now this is completely different than what we have here, right? 157 00:16:45.980 --> 00:16:52.480 Look at what they're doing or trying to do with healthcare, so-called reform, in the United States Congress. 158 00:16:52.480 --> 00:17:00.980 There is some give and take between the two bodies of Congress, the two chambers of Congress, but it's not at all like this. 159 00:17:00.980 --> 00:17:10.980 Here in Hayek's ideal constitution, the upper chamber establishes the scope of government. 160 00:17:10.980 --> 00:17:14.980 It says, this is how far government can go, and it can't go any farther than this. 161 00:17:14.980 --> 00:17:26.980 And then the lower chamber can try and address issues like maybe regulating insurance or whatever it wants to do but it has to do its subject to those limits on the scope of government that are established by the upper chamber. 162 00:17:26.980 --> 00:17:41.980 This is entirely different. I want to mention too that in thinking about comparing this to the United States Constitution, everybody to some extent will be familiar with the writings of James Madison in Federalist Papers about the separation of powers and federalism. 163 00:17:41.980 --> 00:17:55.980 The framers were convinced, and with great justification, that having a very diverse society, what Hayek calls the extended order, would help government to limit its own power. 164 00:17:55.980 --> 00:18:01.980 Because we have a diverse society, it's more difficult for people to agree about anything. 165 00:18:01.980 --> 00:18:18.980 Going back to democratic theory from a long time ago, the framers of our constitution, when they thought of democracy, they thought of the ancient democracies, especially that of Athens in which people directly ruled, they did whatever they wanted to, provided they had a majority to agree to it. 166 00:18:18.980 --> 00:18:21.980 That's what they thought of. Small communities could govern themselves like this. 167 00:18:21.980 --> 00:18:26.980 They said, you know, you could have a temporary majority to do all kinds of terrible things in a society like that. 168 00:18:26.980 --> 00:18:49.980 In a large diverse society, with a complex scheme of government like we have here, the separation of powers and federalism, it's more difficult to form a temporary majority to do anything, because if you have a diverse society, it's less likely that people are going to agree on things. 169 00:18:49.980 --> 00:18:52.980 That tends to limit the scope of government's power. 170 00:18:52.980 --> 00:18:57.980 Now, what Hayek has in mind again here is in fact quite different than that. 171 00:18:57.980 --> 00:19:01.980 Hayek, rather than saying we're going to have a, he does recognize that that's the case. 172 00:19:01.980 --> 00:19:09.980 He agrees certainly with Madison about that, about diversity tending to impose some limits on the ability of majorities to form. 173 00:19:09.980 --> 00:19:19.980 But one thing he's saying is very different, is that there has to be a limited consensus among most people in society. 174 00:19:19.980 --> 00:19:26.980 Hayek says, liberty to work well requires not merely the existence of strong moral convictions, but also the acceptance of particular moral convictions. 175 00:19:49.980 --> 00:20:02.980 I'm concerned rather with some more general conceptions which seem to me an essential condition of a free society and without which it cannot survive. 176 00:20:02.980 --> 00:20:18.980 The two crucial ones seem to me the belief in individual responsibility and the approval as just of an arrangement by which material rewards are made to correspond to the value which a person's particular services have to his fellows. 177 00:20:18.980 --> 00:20:32.980 Class warfare is out if we're going to have a free society, or class resentment is out if we're going to have a free society, and looking to somebody else to take care of our needs is out if we're going to have a free society. 178 00:20:32.980 --> 00:20:41.980 People have to believe that those are not appropriate social goals. People have to substantively actually believe that we don't want a government that does things like that. 179 00:20:41.980 --> 00:20:46.980 If we don't have a society in which most people believe those things, we're not going to have a free society for very long. 180 00:20:46.980 --> 00:20:57.980 This is the key message that I want to impart to you that Hayek is talking about in his ideal constitution. 181 00:20:57.980 --> 00:21:00.980 I'm going to run out of time, so I want to talk a little bit about the design of his constitution. 182 00:21:00.980 --> 00:21:04.980 In the upper chamber, there are some really interesting features of this. 183 00:21:04.980 --> 00:21:10.980 Nobody who's ever been a member of a political party can be a member of Hayek's upper chamber. 184 00:21:10.980 --> 00:21:13.980 There's no First Amendment, apparently, in Hayek's constitution. 185 00:21:13.980 --> 00:21:22.980 This is a speculative idea. No politicians is the idea. Nobody who's been a politician is going to be a member of his upper chamber. 186 00:21:22.980 --> 00:21:28.980 You're going to serve one term, the ultimate term limit. It's going to be a relatively long term. 187 00:21:28.980 --> 00:21:32.980 He suggests probably about 15 years, so they're not focused on re-election. 188 00:21:32.980 --> 00:21:36.980 He says they should be people who have reached a relatively mature age. 189 00:21:36.980 --> 00:21:43.980 People who vote for members of the upper chamber only do so once in their lives. 190 00:21:43.980 --> 00:21:50.980 So at one point in your life, when you two are at a relatively mature age, you're going to vote for one of your peers to represent you in the upper chamber. 191 00:21:50.980 --> 00:21:55.980 What does this tell us about this upper chamber? 192 00:21:55.980 --> 00:22:02.980 What Hayek has in mind is that members of the upper chamber are supposed to represent the dominant values in society. 193 00:22:02.980 --> 00:22:20.980 When I talked earlier about opinion, a sense of justice, what kinds of substantive values do we have about the scope of government, the appropriate power of government, how we ought to relate to each other individually and collectively in society. 194 00:22:20.980 --> 00:22:29.980 Broadly speaking, those traditional ideas or whatever, whether they're products of tradition or whatever, that's what Hayek wants to have represented in his upper chamber. 195 00:22:29.980 --> 00:22:35.980 This is the sense of justice that predominates in society. 196 00:22:35.980 --> 00:22:45.980 Now, I'm going to suggest to you that what Hayek has in mind is what political writers a long time ago used to think of as a natural aristocracy. 197 00:22:45.980 --> 00:22:51.980 You go back to the time of our founding and before when people talked about a mixed constitution. 198 00:22:51.980 --> 00:22:56.980 A mixed constitution meant a constitution that represented different social classes. 199 00:22:56.980 --> 00:23:01.980 Social classes, the aristocracy would be one, the people would be another, 200 00:23:01.980 --> 00:23:08.980 nobility would be another, different groups representing different amounts of wealth, 201 00:23:08.980 --> 00:23:11.980 whether they were wealthy, whether they were middle class, whether they were poor. 202 00:23:11.980 --> 00:23:13.980 This is an idea that goes way, way back. 203 00:23:13.980 --> 00:23:18.980 You find this in Aristotle, this idea of a mixed constitution in which different parts of the government 204 00:23:18.980 --> 00:23:25.980 represent different parts of the society in terms of status and prestige and so forth. 205 00:23:25.980 --> 00:23:30.060 Now, what Hayek has in mind here actually is kind of a natural aristocracy. 206 00:23:30.060 --> 00:23:33.460 Some of our forebears talked about a natural aristocracy, meaning people who had proven 207 00:23:33.460 --> 00:23:38.420 themselves successful in life or proven themselves to be virtuous as compared to their fellows. 208 00:23:38.420 --> 00:23:44.780 And this would be a natural aristocracy, not one that they had inherited by their family, 209 00:23:44.780 --> 00:23:49.180 you know, I'm the Duke of whatever, but because they had skills, they had intelligence, they 210 00:23:49.180 --> 00:23:56.180 This is what Hayek actually has in mind here. These are people, he says, who have proved, should be, people who have proved themselves in the ordinary business of life. 211 00:23:56.180 --> 00:24:07.180 These are people who are respected, who are admired by their peers. And so, presumably, these are going to be people who reflect their sense of what is fair, of what is right and wrong, and also their sense of what is right and wrong. 212 00:24:07.180 --> 00:24:23.180 These are people who are respected, who are admired by their peers, and so presumably these are going to be people who reflect their sense of what is fair, of what is right and wrong, and also their ideas about what the scope and the powers of government ought to be. 213 00:24:23.180 --> 00:24:35.180 Now remember, the upper chamber again is the chamber that limits the lower chamber. It limits the rest of the legislature. It really imposes limits on the entire government. 214 00:24:35.180 --> 00:24:39.180 Have you heard me say anything yet about an executive branch of government? 215 00:24:39.180 --> 00:24:41.180 No. Hayek doesn't talk about one. 216 00:24:41.180 --> 00:24:45.180 Now, he does have a constitutional court that has the power of judicial review. 217 00:24:45.180 --> 00:24:48.180 And guess who chooses the members of the court? 218 00:24:48.180 --> 00:24:52.180 They're appointed by retired members of the legislative assembly, the upper chamber. 219 00:24:52.180 --> 00:24:58.180 These are the people, again, who not only were they put there because they were respected by their peers 220 00:24:58.180 --> 00:25:01.180 and presumably reflected the dominant values of the society, 221 00:25:01.180 --> 00:25:05.660 of the Society, but now they have served the public in that capacity in their one 15-year 222 00:25:05.660 --> 00:25:10.820 term or so, they have retired, and now they're in a position to help select people who would 223 00:25:10.820 --> 00:25:15.620 sit on a court with the power of judicial review to review the acts of the legislative 224 00:25:15.620 --> 00:25:23.220 assembly and the lower assembly to see if they satisfy the basic clause of the Constitution, 225 00:25:23.220 --> 00:25:29.140 what the rule of law is, and whether the lower chamber has violated laws enacted by the upper 226 00:25:29.140 --> 00:25:31.140 to limit the scope of government. 227 00:25:31.140 --> 00:25:38.140 So what Hayek is trying to do is he's trying to put traditionally evolved opinion, 228 00:25:38.140 --> 00:25:47.140 a traditional sense of justice in really the ultimate governing seat in his ideal constitution. 229 00:25:47.140 --> 00:25:51.140 So it's not a president that governs, it's not a group of people, it's not a political party, 230 00:25:51.140 --> 00:25:53.140 and it's certainly not a coalition of interest groups. 231 00:25:53.140 --> 00:26:01.140 and interest groups. Rather, it is justice, the sense of justice that people have predominating in society that is to govern. 232 00:26:01.140 --> 00:26:08.140 Now, let me just, I'm going to, I don't know if we'll do questions after everybody has talked. 233 00:26:08.140 --> 00:26:11.140 I'm going to conclude and then if you have questions for me, I'll be happy to answer them later. 234 00:26:11.140 --> 00:26:14.140 Let me just point out, there's a couple of issues that I would like to point out. 235 00:26:14.140 --> 00:26:20.140 Now, I think the overall, the point Hayek makes here is one that's extremely important. 236 00:26:20.140 --> 00:26:50.140 And I'm a big fan of constitutional political economy, probably a lot of you are too, but I want to highlight that when we use economic man or egoistic behavior as the foundation, not only to describe what people do in self-interested activity in the marketplace, but also if we use that to say, here's how we can make a government work, you can come up with a good description like the framers of our constitution did and like James Buchanan and Gordon Dullock did. 237 00:26:50.140 --> 00:27:20.140 Hayek's overall point, which I'm convinced is correct, is that if you want, and again, as I said before, I think some other people will come in, in the long run, which is actually the important perspective, if you want liberal government to persist, it is essential that most people in society actually want that and believe in that. They actually accept those kind of values that I've talked about and that Hayek talks about. 238 00:27:20.140 --> 00:27:40.140 A couple of things I want to point out. One of them I already did, which is that this has implications for political theory, which is that if we're interested in constitutional political economy like I am, I think we also have to be interested in values, in normative political theory. 239 00:27:40.140 --> 00:27:44.140 I think that either one existing in a vacuum is probably missing something. 240 00:27:44.140 --> 00:27:50.140 Hayek recognized that, and that's why he comes up with an abstract constitution in his political writings. 241 00:27:50.140 --> 00:27:58.140 On the other side, people who are interested primarily in constitutional political economy and leave out values, 242 00:27:58.140 --> 00:28:06.140 defense of human freedom as being something that is morally valuable, not merely desirable in a utilitarian sense, 243 00:28:06.140 --> 00:28:22.140 Hayek recognizes that the values that support a free society can be fragile. 244 00:28:22.140 --> 00:28:27.140 Most of you have probably read Joseph Schumpeter's book, Capitalism, Socialism and Democracy. 245 00:28:27.140 --> 00:28:34.140 Hayek also recognizes that the growth of large firms, for example, where people work for big companies, big corporations and the like, 246 00:28:34.140 --> 00:28:37.540 can be something that can actually erode 247 00:28:37.540 --> 00:28:40.180 the kind of values that a free society depends on. 248 00:28:40.180 --> 00:28:41.580 People come to think of themselves 249 00:28:41.580 --> 00:28:44.980 as parts of a big machine, a big corporate machine. 250 00:28:44.980 --> 00:28:47.340 I'm owed what I get because this is my position 251 00:28:47.340 --> 00:28:49.380 in the organization and the like. 252 00:28:49.380 --> 00:28:51.780 And this actually can threaten the kind of values 253 00:28:51.780 --> 00:28:53.940 that people have, that people need 254 00:28:53.940 --> 00:28:57.220 in order to make a free society work. 255 00:28:57.220 --> 00:28:59.620 Throw this out as an example. 256 00:28:59.620 --> 00:29:01.820 If you work in a big corporate organization like that, 257 00:29:01.820 --> 00:29:04.860 That's who gives you your health insurance, right? 258 00:29:04.860 --> 00:29:07.060 Lots of people may not understand that it's a lot different 259 00:29:07.060 --> 00:29:08.700 to have the government do that 260 00:29:08.700 --> 00:29:10.740 than to have their employer do that. 261 00:29:10.740 --> 00:29:12.500 Lots of people may not understand that. 262 00:29:12.500 --> 00:29:15.820 If they worked for so-and-so Inc. for their whole lives, 263 00:29:15.820 --> 00:29:16.660 they may not get that. 264 00:29:16.660 --> 00:29:18.860 Hayek talks about this as a potential problem, 265 00:29:18.860 --> 00:29:22.640 but very large firms like that can arguably be the result 266 00:29:22.640 --> 00:29:23.740 of market competition, 267 00:29:23.740 --> 00:29:25.980 also of government regulation and the like. 268 00:29:25.980 --> 00:29:30.900 So he recognizes that there may be forces at work 269 00:29:30.900 --> 00:29:36.900 in a market that can threaten some of the moral underpinnings on which it depends. 270 00:29:36.900 --> 00:29:38.300 All right, but that's what I've got. 271 00:29:38.300 --> 00:29:39.800 Oh, one final thing, then I'm going to shut up. 272 00:29:39.800 --> 00:29:41.000 I'm afraid we're out of time. 273 00:29:41.000 --> 00:29:41.700 All right. 274 00:29:44.500 --> 00:29:45.600 I go for one point. 275 00:29:45.600 --> 00:29:46.700 Oh, I went for 30 minutes. 276 00:29:46.700 --> 00:29:47.500 My apologies.