Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law.

David Dyzenhaus and Thomas Poole, eds.

Cambridge University Press, 2015. 350 pp.

 

It is rare that a work of academic political theory is timely, especially one whose subjects have all been dead for several decades. Nonetheless, this collection of essays on Carl Schmitt, Friedrich Hayek, and Michael Oakeshott speaks to several issues that remain unresolved both in political philosophy and in political practice. The essays concern the character of the political community, the nature of the rule of law, and liberty under the rule of law. The three thinkers who are the subject of the collection wrote extensively about all three issues, though there are significant differences in emphasis among them. All three issues remain central to contemporary political life, with contentious disagreements about immigration and national identity, the character and authority of law, and the nature and limits of liberty defining the distinctions between the various partisan camps in European and North American politics.

Although the division is not formal, the essays are divided into three sections, with each section focusing on one of the three writers, though most of the essays compare the primary subject of the essay with one or both of the other subjects of the volume. There are also different approaches to these thinkers, as some, like Duncan Kelly and David Boucher, take a more historical approach, while most of the others deal with theoretical issues concerning each writer’s work. All of the contributors, except for the rather puzzling final essay, treat their subjects with an admirable degree of critical respect. These are not hagiographical essays, but the subjects of the collection were not chosen for demolition either.

The connection of Schmitt, Oakeshott, and Hayek is not, at first glance, an obvious one, especially since Schmitt’s political commitments were anathema to Oakeshott and Hayek. As David Boucher points out in his essay, however, all three were theorists responding to what they considered a serious civilizational crisis in the West, specifically “the affliction of liberal democracy and the erosion of sovereign legitimacy” (125). Schmitt’s theoretical work was a direct response to the disastrous outcome of World War I for Germany and the subsequent decadence, according to him, of the Weimar Republic. For Oakeshott and Hayek, the primary danger was the rise of totalitarian, teleocratic governments and the malign influence of teleocratic ideas on the individualistic traditions of the West.

Schmitt’s primary focus was on the nature of the modern state and the character of the political community which composed it. He also wrote extensive critiques of parliamentary liberalism and the rule of law, but these were aspects of his overriding concern with developing a conception of a unified political community. Schmitt claimed that modern liberalism was internally weak and theoretically incoherent. It rested upon a false notion of law that encouraged factionalism and the breakdown of political unity. He noted that the concept of the rule of law entailed the understanding of law as noninstrumental general rules of conduct which condition, but do not specify actions (Oakeshott and Hayek actually shared this understanding of the rule of law). Schmitt thought that the rule of law understood in that way was both politically unstable and theoretically unsound. First, he argued, correctly, that under this conception the law is underdetermined, in that it cannot either interpret or execute itself. The indeterminacy of law inevitably results in judicial usurpation of the legislative role, and it has most certainly been the case in both North America and Europe that courts have increasingly taken on the role of policy maker and legislator. Further, according to Schmitt, liberalism’s emphasis on individualism encourages the fragmentation of the political community and transforms parliamentary government from a legislative body concerned with the common good into a bazaar for the brokerage of favors for interest groups. Again, Schmitt’s prescience cannot be denied.

More importantly for Schmitt, however, was the fact that the rule of law was supposed to be authoritative, but it lacked any convincing justification for its authority. Schmitt’s target here was Hans Kelsen, who argued that the authority of the law rested on a basic norm, which meant, more or less, that laws authorize other laws. Thus, a law was an authorized law if it was adopted according to the correct procedure. Schmitt noted that the authority of such a basic norm or procedure had to come from somewhere, and he claimed that the only source of true authority was the sovereign. Schmitt defined the sovereign as whomever gets to declare the exception, meaning that the sovereign was the individual or group who had the power and authority to suspend the law itself. For Schmitt, the sovereign’s declaration of the exception offers the political community a chance to define itself. As Nehal Bhuta points out in his essay, Schmitt’s concept of state formation is inextricably tied to governmental use of emergency powers. Further, Lars Vinx observes that “the sovereign decision . . . is the only form in which popular sovereignty can be actualized, and popular sovereignty, Schmitt argues, is the only modern basis for the legitimacy of law” (107).

Politics, in Schmitt’s conception of the term, is primarily concerned with the identification of friends and enemies, and it is during the time of the exception when the wheat can most easily be separated from the tares. After this separation, the constitution and the rule of law can be reinstated. For Schmitt, the constitution is best understood as an instantiation and reflection of the unified and normal morality and identity of the political community. As Hans Lindahl notes, however, “normality . . . is always . . . the outcome of a process of (constitutional) normalization” (61). The pluralism which characterizes a modern liberal state is the problem to be solved, and the weakness of such pluralism lies in its inherent incapacity to distinguish friends from enemies. Schmitt’s conception of sovereignty solves the problem by using its power to declare an exception, decide who are friends and who are enemies, and create a homogeneous political society. Though Schmitt’s prescriptions are not particularly attractive (his conception of sovereignty is incompatible with the rule of law, and his understanding of politics does little to distinguish politics from combat), his observations about the weaknesses of contemporary liberal states deserve serious attention. The judicial usurpation of legislative authority, the reduction of legislation to bargaining, and the inability of liberal states to control their own borders all continue unabated and serve as validation of Schmitt’s diagnosis, if not Schmitt’s cure.

Oakeshott and Hayek rejected Schmitt’s conception of the political community and embraced the pluralism of the modern state. For both thinkers, Schmitt’s conception of the state as a unified and homogeneous community sharing the same goals and purposes misconceived the nature of the modern state and represented a grave danger to the rule of law and liberty under the rule of law, the two values central to their vision of Western civilization. For both thinkers, questions about the modern state were ultimately questions about the appropriate function of its government and the character of its political community. Oakeshott and Hayek agreed, for the most part, about the correct answers to both questions.

Oakeshott called his conception of the modern state a civil association or a nomocracy, and he insisted that the community which composed it was associated by its acknowledgement of a common rule of law obligatory for each of them. He also suggested that such an association is possible only in a community whose members tolerate, if not necessarily approve of, moral/value pluralism. Oakeshott characterized the rule of law as a system of noninstrumental general, authoritative rules which condition but do not determine the choices of individuals, who are free to pursue their own choices under those conditions. Indeed, the rule of law is one of the conditions under which liberty flourishes. Unlike Schmitt, Oakeshott (and Hayek, as well) argued that the indeterminacy of law is a feature not a bug. Laws under this conception are not commands but general rules, and they are not instrumental but conditional. Thus, there is considerable latitude for human action under the law. In her contribution, Erika Kiss notes the parallels between the rule of law and the rules of grammar, and she suggests that, just as one achieves a Sprachgefühl, or a feeling for a language, one might also attain Rechtsgefühl, or a feeling for the rule of law. In both cases, the rules do not so much limit human action as supply the conditions of its comprehensibility.

David Dyzenhaus, in his contribution to the volume, observes that, for Oakeshott, authentic law has to be adequate both procedurally and formally. In other words, law has to be composed and passed in an authorized manner, and it has to conform to the inherent characteristics of the law (e.g., “rules not secret or retrospective, no obligations save those imposed by the law, all associates equally and without exception subject to the obligations imposed by the law, no outlawry, and so on”).[1] As several of the writers in the volume aver, this conception of the rule of law is being overwhelmed by administrative policy and judicial fiat. Oakeshott characterized both of these types of rule as associated with teleocracy, or the conception of the state as a single enterprise with the political community understood as a mass of comrades engaged in contributing to the common goal. For Oakeshott, this conception of the state necessarily entailed the destruction of the rule of law and the pluralism that went with it. Thomas Poole correctly notes that Oakeshott accepted that, in times of crisis, the state may have to act as a teleocracy, especially when its survival is at stake. However, he firmly rejected the notion that the state-at-war should be an acceptable model for normal state activity. The state, understood as a civil association, has no substantive purpose.

Like Oakeshott, Hayek understood the state as a nomocratic institution whose primary purpose was to preserve and enforce the rule of law, understood, as Oakeshott conceived it, as a set of noninstrumental rules which condition, not direct, the activities of citizens. This nomocratic regime offers the conditions under which individuals are free to pursue their own versions of the good life. Such a regime also allows for the dispersed knowledge of such individuals to work in the most efficient way. Hayek’s famous critique of central planning depends upon his epistemological claim about the impossibility of a single person, group, or institution having the knowledge to coordinate successfully any large-scale plan. Such planning, Hayek argued, would inevitably fail because it lacked both localized and specialized factual knowledge and, more importantly, because it lacked the kind of tacit knowledge that cannot easily be communicated by technical means. The takeover by a teleocratic state of decision-making authority would also severely limit the liberty of the citizens, and it would likely create a dependent client citizenry unwilling to make their own choices. As Jan-Werner Müller points out in his essay, Hayek offered not only a critique of teleocracy but also a model constitution, which he believed would serve to avoid the temptations of teleocracy. It is here that Hayek was at his most ideological in the sense that he appears to believe that his version of a liberal constitutional regime could be created institutionally without reference to the moral character of the individuals who compose it, and that institutions themselves would prevent teleocratic tendencies from dominating political life.

Hayek’s liberal universalism was tempered by his understanding of moral pluralism. For Hayek, there is no such thing as a common telos for humanity or a single hierarchical set of morals or values to which everyone would rationally consent. Indeed, it was his commitment to pluralism which informed his scathing criticism of the notion of social justice. Chandran Kukathas, in summarizing Hayek’s critique, notes that “social justice makes sense as a political ideal within a closed community of like-minded people but cannot coherently be pursued across an abstract order of people who interact with and relate to one another not because they share particular deep ethical commitments but in spite of the fact that they do not” (289). So-called social justice warriors, despite their declamations of their own tolerance, misconceive the nature of the modern state as a teleocracy, and, if they had their way, the result would not be tolerance of difference but a Procrustean politics in which we become “a closed community of like-minded people.”

In the main, the editors have put together an exceptional collection of essays which should be of interest both to those new to Schmitt, Oakeshott, and Hayek and to connoisseurs of the authors. The only truly anomalous essay in the volume is by Adrian Vermuele. Vermuele’s contribution is eccentric in that it has nothing to do with theories of law (as understood by Schmitt, Hayek, or Oakeshott), liberty, or the state but, instead, offers a defense of centralized administrative government. It is also the only essay that blithely dismisses the importance of its subject, in this case, Hayek. Vermuele doesn’t address Hayek’s conception of the rule of law or nomocratic government, and he neglects to consider the difference between the choices of individual citizens concerned with pursuing their own version of the good life and the choices of government regulators concerned with forcing their particular vision of the good life on everyone else. Indeed, his apology for the centralized bureaucratic state recalls Oakeshott’s critical remarks about Hayek’s plan to avoid planning. In Vermuele’s case, one might say that a centralized bureaucracy inclined to limit regulation is better than any other type, but it is still a centralized bureaucracy, and, thus, subject to Hayek’s criticism of centralized planning and Oakeshott’s critique of rationalism.

 

Dr. Kenneth B. McIntyre is an Associate Professor of Political Science at Sam Houston State University.  He is the author of The Limits of Political Theory:  Michael Oakeshott’s Philosophy of Civil Association and Herbert Butterfield:  History, Providence, and Skeptical Politics.  He is currently working on a book on moral pluralism and political liberty.

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[1] This is one version of Oakeshott’s list of the internal characteristics of the law. Dyzenhaus quotes this on page 244.