Hayek was an an activist liberal rather than a conservative, writes Roger Kimball. And now that the struggle against socialist planning is over, the important question is where Hayek thought we should go from here. What was his vision for a liberal Utopia?
In his essay ‘The Intellectuals and Socialism’ Hayek argued that:
The main lesson which the true liberal must learn from the success of the socialists is that it was their courage to be Utopian which gained them the support of the intellectuals and therefore an influence on public opinion which is daily making possible what only recently seemed utterly remote (pdf).
Hayek’s Utopian visions usually involved schemes for thwarting democracy. In a 1973 lecture — ‘Economic Freedom and Representative Government’ — Hayek suggested a radical reworking of democratic institutions. The powers of the legislature and the executive should be clearly separated, he argued. Each would have its own house or assembly. The legislative assembly should have the power to make laws which apply equally to everyone, while the executive assembly should only be able to use coercion to enforce obedience to these laws.
The executive assembly would take care of the day to day business of governing. It would have control over government departments and its representatives would be answerable for departmental decisions. Like Britain’s House of Commons, its members would face regular elections and it would be dominated by political parties.
But the executive would not be able to do anything that hadn’t been authorised by the legislature. Its activities would always be limited by the general laws passed by the legislature. And the most radical part of Hayek’s vision was the way this powerful legislative assembly would be elected.
Hayek was looking for a way to appoint legislators who would be independent of sectional interests and political parties. He wanted a body which would be representative of prevailing moral opinion:
Such a legislative assembly could be achieved if, first its members were elected for long periods, second, they were not eligible for re-election at the end of the period, and third, to secure a continuous renewal of the body in accord with gradually changing opinions among the electorate, its members were not all elected at the same time but a constant fraction of their number replaced every year as their mandate expired; or in other words, if they were elected for instance, for 15 years and one-fifteenth of their number replaced every year. It would further seem to me expedient to provide that at each election the representatives should be chosen by and from only one age group so that every citizen would vote only once in his life, say in his forty-fifth year, for a representative chosen from his age group (p 116-117).
Whenever the executive overstepped the limits imposed on it by the legislature, the matter would go before a constitutional court. Judges would hold the people’s elected representatives in check.
Imagine that Australia had a system like this. At some time in the past, right thinking middle-aged conservatives might have voted people like Malcolm Fraser and Robert Manne onto the legislature. Then when the executive decided that it would be a good idea to lock up asylum seekers or join the Americans in Iraq, the legislature might accuse them of exceeding their legislated mandate and drag them in front the judiciary. Right thinking conservatives like Janet Albrechtsen would be furious.
Albrechtsen’s opposition to a bill of rights shows how different her views are from those of Hayek. She argues that elected governments should not be hemmed in by laws they can’t change or judges they can’t control:
It seems that the uneducated masses understand that in a democratic society we need to trust that the government is working to protect our interests. Whether you voted for the Howard Government or not, in a liberal democracy there needs to be an underlying level of loyalty to the very idea of a popularly elected government. If politicians get it wrong, we can boot them out of office. Judges, on the other hand, are there to stay.
Kimball argues that "There is an important sense in which genuine liberals are (in Russell Kirk’s phrase) conservative precisely because they are liberals: they understand that the best chance for preserving freedom is through preserving the institutions and traditional practices that have, so to speak, housed freedom." In some moods Hayek does seem to be a conservative liberal. But in others his anti-democratic liberalism seems far more radical.
Hayek’s supporters tend to avoid discussing his Utopian scheme for redesigning democracy. Perhaps they think he was mistaken about the effects his reforms would have. The only clear and widely accepted message from Hayek’s work is his message about what not to do — we should not attempt to override the market to give each individual or group the reward they morally deserve. Perhaps the reason writers like Kimball focus on the past is because Hayek’s supporters have no shared vision of the future.
Yes, Albrecht is no liberal. Nor a conservative. Radical democrat? I doubt it. Opportunist – I think so.
I agree, Hayek’s proposal is too utopian and unnecessary. We can achieve close to the same checks and balances on unrestrained majoritarianism by adopting a Bill of Rights like the US.
Will the bill of rights simply swap majoritarianism (as you put it) for authoritarianism by an unrepresentative legal system as Bob Carr recently opined? Will courts overrule government on legislation based on the bill of rights, and what mechanism can be used to maintain those rights if they turn out to be wrong?
So you’re taking Janet Albrechtsen’s side on this, David.
Bob Carr belongs to the socially conservative Labor Right, and his views on this are predictable.
In the US where there is a Bill of Rights, conservative politicians get as pissed off with judges as leftist politiicans. That’s good enough for me.
If a court’s decision is ‘wrong’ all it means is that the government is temporarily stopped from doing something. This is reversible by it drafting a better law. Forcing the government back to the drawing board is not a great loss in my book.
If an unrestrained legislature is ‘wrong’, the law can stay on the books for years without correction.
That’s always been my argument for a Bill of Rights, too, Jason. As it is there’s is considerable blurring between the executive and legislature in Australia. At least a Bill of Rights would make the executive a tad more accountable.
That said, we probably do need a more transparent judicial appointments process. I’m not sure the US-style circus is the answer, but there is something to be said for making senior members of the judiciary a rather more ‘known’ quantity.
Jason – Hayek agreed that his model was Utopian. He didn’t think anyone was actually going to put it into practice. In defence of his idea he quoted David Hume:
In the Constitution of Liberty (p 181-186) he discusses two other ways of limiting government power — a constitution which sets out the powers of the legislature and federalism. He approved of both.
Sometimes Hayek seems to argue for a kind of social engineering — reforming social institutions using theory as a guide. But other times he seems to argue that this approach is a mistake.
Since you and skepticlawyer are arguing for a bill of rights, I’m curious about your views on how the US Bill of Rights has held up over time. What do you think about the way courts have interpreted it? Is there any way to predict what effect an Australian bill of rights would have?
Jason soon wrote:
Even a broken clock is right twice a day.
I’d argue differently – I’m concerned that a bill of rights would be more than just another piece of legislation – would we need referendums to change it? If so, it becomes a de-facto battleground for differing political points of view and interpretation. Normal legislation is then measured not against the spirit of the bill of rights, but the current biased interpretation of it.
This, in my book, is why the judicial appointment process in the US has become so politicised. I’m not 100% against the idea of a bill of rights, but I would prefer a system that avoided a supreme court that was “stacked” in anybodies favour. You might argue that already happens, in which case that needs fixing too.
“If a courts decision is wrong all it means is that the government is temporarily stopped from doing something. This is reversible by it drafting a better law. Forcing the government back to the drawing board is not a great loss in my book.”
But that’s not what happens in the US – judges with little competence or legitimacy end up making rules, with fixing the problems they create sometimes requiring either formal Constitutional change (very hard) or stacking the Supreme Court, which can take decades. It is what is intended to happen under the ACT and Victorian Charters of Rights however.
Hayek’s idea on this has never caught on here; indeed none of the constitutional constraints proposed by classical liberals and libertarians has ever found a constituency. The Bill of Rights push has come from left-liberals.
Now I know I’m having a bad day. I find something in common with Bob Carr, Albrechtson and Andrew Norton. It’s enough to make me start the 6th Internationale just to be a contrarian.
On balance, I’m in favour of a bill of rights. However, that isn’t to say that there aren’t powerful arguments against it. In Australia, many of them are made by James Allan. A useful summary of his arguments is available here. Click on the mugshot of yours truly and scroll through the PDF until you reach Professor Allan’s article. Some quotations:
and
and…
Hayek’s system seems designed to produce a government with a strong legislative branch and an executive branch that can’t do anything. Fits in with his econmic ideas.
A US style bill of rights does seem problematic. Its hard to not have a politicised judicial selection process in their system.
The most attractive proposal for a bill of rights I have heard is one which goes like this
* Bill of rights enacted by parliament.
* If someone feels a law is in contravention of the Bill of Rights they can have it taken to court and challenged.
* If the court decides the law does violate the Bill of Rights it refers the law back to parliament.
* Parliament then has two choices. Within six months it must either amend the offending legislation, or ammend the Bill of Rights.
I can’t remember who proposed this, but I think I heard it on a debate on Late Night Live between Bob Carr and and bill of rights for Australia advocate. I find this model can give the primary benefit of a Bill of Rights which is a universal standard that everyone knows and understands while avoiding the problems of politicing the judiciary and creating hard to change artefacts like the right to bear arms.
It lets an average citizen have some idea of what their rights are, some confidence their rights are real and protected in legislation and most importantly a big bright flag when those rights are being changed. Nothing wrong in principle with rights being changed, but I think it best that happens explicitly rather on the quiet and on the side like seems to have happened with recent anti-terrorism legislation.
I’m interested in how you would define ‘democracy’. The left have a very strange concept of democracy. Afterall, what is wrong with this?
That is actually the system of government we already have.
But for the age limit, it appears that Hayek’s system is very much like our Senate with term limits. I must say, since the Coaltion took control of the Senate, lefties appear to be less tolerant of that institution.
David, Will the bill of rights simply swap majoritarianism
A republic is predicated on majority rule, but the minority accepting majority rule through absolute certainty that their rights are absolute and cannot be swamped by tyranny or the mob.
There is also the issue that a rational individual would not agree to be a part of a political system where their rights (individual and democratic) can be arbitrarily curtailed by executive or legislative tyranny or the mob. Much of the political ethnic violence of the 20thC would have been stopped if this simple principle was adhered to.
Convention already dominates much of Australian politics, for instance the legislature locked someone up in jail in the 50s IIRC. Which is not their domain. The executive is supposed to charge someone and the judicial determine their sentence. I think legislation was passed soon after to make sure it didn’t happen again, but our system is the perfect machine many assume it is. Parliamentary systems are old technology and pretty clunky.
The Hicks episode has shown that many so-called lefties’ share Hayek’s view of the importance of limiting executive power while some self declared libertarians just don’t seem to get it.
Cam,
While as I understand it Parliament still has the power to imprison. I wrote a private members bill for John Button when he was in Opposition in 1981 which was loosely based on a bill that Owen Dixon had written several decades before which required Parliament to refer anyone it wanted to imprison for concempt of Parliament to the judiciary.
Button supported it, but looked a bit unimpressed when his fellow parliamentarians looked askance and asked ‘now John why would you want to do that?’ It turned out John was not too sure of the answer and the bill died a quick death.
I think something was revived about a decade later and may now be on the books. I didn’t keep a close eye on it but my recollection is that it did not unambiguously prevent the parliament from repeating the dose it dished out to the two journos who ended up in Goulburn jail for a while in the 1950s for (IIRC) speculating on the motives of a parliamentarian whose motives migth well have been as they speculated.
What swio is suggesting (comment 12) is roughly the situation in Victoria and the ACT at the moment. While certainly a lot better than the US Bill of Rights, I am inclined to agree with Ben Jellis that it still gives too much power to the judiciary.
We have to be careful with how a Bill of Rights is drafted. But there are limits to the extent to which judges can actually make law in the sense of prescriptive legislation. Certainly it hasn’t happened in the US. I would not settle for any Bill of Rights but something close to the US one (but without the gun rights baggage which has no historical context in Australia). I don’t see why liberals/conservatives like Andrew should be concerned about ‘legistimacy’ given this highly restricted role of judges. We as liberals regard democracy as a necessary evil, the most peaceful means of changing government, not as some end in itself like in the notions of ‘participatory democracy’ that left-utopians prefer. I don’t see what’s so great about
in the article that Andrew links to. This process is called ‘rent seeking’ and usually leads to inefficient prescriptive legislation. Rather we err on the side of the State being able to do nothing (or at least being slowed down in its natural rapacious tendency to do more) than to do a half-arsed something.
I simply don’t get the liberals on this thread (classical liberals that is) arguing against bills of rights. If you said ‘in theory I’m in favour of them, but in practice the judiciary are too adventurist with them’ then I’d understand. I’m not sure of my own position, but that seems reasonable to me.
But isn’t a classical liberal ALWAYS concerned about the power of majoritarianism to degenerate into oppression of the minority? Isn’t that one of the building blocks of classical liberalism. It would be one reason why I’d be happy to call myself a classical liberal – amongst other things.
If you don’t want the judiciary protecting the rights of the minority, who did you have in mind? And how are they to protect rights if not according to some statement of them. Now the British common law has done a reasonable job of protecting rights (ie in the upshot and along with the British Parliament and the functioning of political conventions). But surely the rights that are embedded in common law come from judicial activism. And mightn’t expecting a judiciary to protect rights without some formal articulation of what they are be a recipe for more judicial activism rather than less?
The idea that the parliament can simply ignore basic rights if it is so minded by overruling some High Court judgement doesn’t sound too flash to me if the judgement is fundamental enough – for instance some finding of a right to due process or equality under the law.
Don’t you guys reckon I’ve got a right to due process, and to come before an independent magistrate if I’m to be detained? A right to my property. All of course balanced by others’ rights. Is parliament the only institution that should have a major say on those subjects?
Nick – A lack of trust in the judiciary is one reason I am not keen on a bill of right; the current Constitution and Australia’s governmental institutions have been fundamentally transformed by judicial interpretation (and often not for the better, in my view). I’m not keen on giving the courts another chance.
Nor would I just take at face value 19th century liberal concerns about the tyranny of the majority, which were part of a general opposition to/concern about democracy that prevailed at that time. Democracy in practice hasn’t been as bad as forecast.
I also want to avoid Roe v Wade type situations, which have helped create major faultlines in US political culture instead of the more sensible compromises reached in most other Western countries.
I can’t find it quickly, but Michael Walter wrote a good essay years ago lamenting that the US left had gone down the path of legal action instead of trying to build public support for their beliefs. There is a lesson there for all political movements.
I support freedom (obviously), but I prefer to achieve it through persuasion than judicial fiat.
Whoops, that was Michael Walzer, not Walter.
I would certainly agree with you that Roe v Wade is an unfortunate way to use the law and a bill of rights. But you seem to be throwing out a great deal of your classical liberal heritage if you’re relying on how things turn out in the political culture as not only your main, but it seems your only way to vouchsafe the rights of the minority.
Do you think there should be the kinds of rights that I specified that I wanted above – rights to due process, rights not to be detained without coming before an independent magistrate? If they’re not enshrined in our constitution, should they be?
In what way?
Roe v Wade is a devisive solution to the notion of abortion rights. A political solution (dare I say it, such as Australia’s) leads to far less militant oppositon to abrtion with much the same outcome. It also allows the political process to deal with nuanced aspects of abortion, for example people might be comfortable with early term abrtions but not late term abortions, or with partial birth abortions and the like. The US-style legal solution is very blunt.
Nick – I’d agree that process rights are the least open to unfortunate judicial use; on the other hand they are also the least breached in a long bill of rights free legal history and least in need of additional protection.
And as the now very boring David Hicks saga shows, even those countries with due process protections can find ways of getting around them.
Fair point, Sinclair, although I strongly suspect that the lack of silliness in Australia re abortion is in part due to different traditions, and a comparative lack of religiosity in politics.
SL.
I’m no expert on Roe v Wade, so correct me if I’m wrong but using some right to privacy – itself I presume unstated in the US bill of rights to overturn democratic laws which say that abortion is illegal seems like stretching things a tad to me. Personally I guess I’m mildly pro-choice though I’ve never had any close encounters with abortion so my views are untested. But I don’t want to poke my nose into people’s business if they want an abortion. But I fully respect the views of others that regard it as deeply wrong. So judicially overruling its criminalisation seems pretty wrong to me. Shouldn’t the same principles apply to drug taking – isn’t criminalising heroin an infraction on the right to privacy?
Andrew, I’m sorry that you find the story of David Hicks boring. I guess I’m just an old fashioned classical liberal, a hopelessly 10th September kind of guy, but personally I don’t like the idea that someone can be sold to the US military, placed in a hood for I don’t know how long, flown around on secret flights to be tortured at unknown and unacknowledged destinations (I don’t think this happened to Hicks, it happended to others – some of whom were completely innocent of any wrongdoing), locked in solitary confinement in a legal no-man’s land for 5 years.
Please don’t mistake me for someone who cares particularly about David Hicks. I don’t. Or even for someone who thinks that David Hicks should have been been treated more ‘fairly’. Of course he should have been, but nasty things can happen to you if you toddle off into war zones.
I care for the complete and cynical disregard for the basic building blocks of a free society.
And even in this worst case scenario all that happened is that State governments were prevented from doing something …
Given all the systemic pressures for government to bloat every day of every week, a Bill of Rights would on balance merely be a corrective.
Sinclair,
Australia’s liberalisation of abortion was judicially led. I’m not sure where we’d be but for the rulings which held that abortion was legal if it was necessary to preserve the health of the mother and that that included her mental health – then of course pretty liberally interpreted.
It’s certainly a sounder legal basis on which to get to a pro-choice position judicially than the right to privacy (of all things).
I take the point. It seems to me though that the ‘right’ to abortion in Australia isn’t derived from the Constitution, or a bill of rights. Rather it follows from the common law and the parliament is happy to let it lay and to tinker around the edges. The US system doesn’t allow tinkering and creates a great deal of legislative uncertainty.
I think we’d be better off electing the judiciary, ditto for president/GG – many say this makes the position political instead of apolitical – I disagree. You can narrowly define the criteria for the judiciary out of senior legal eagles and the GG’s powers are all ready codified – the only debate should be whether the GG powers can be used on the GGs own initiative. Other than that their background is about the only platform they can use. And they could not be a member of a political party.
It is different amongst political parties where it would be political as they debate policy.
My thoughts largely stem from what I deem unethical but legal ruling of the High Court that does not effectively uphold the spirit of the Constitution. I’d sack them if possible except for the obvious two.
All of this said, I’m a supporter of a bill of rights and federalism.
There are problems with judicial appointments in Australia, although I don’t know that electing judges is the way to go. Inevitably in a system such as ours there will be tensions between judicial independence and judicial accountability, which – understandably – makes many people nervous about handing something so powerful as a Bill of Rights to a bunch of senior lawyers.
Much of the worst warping of Australia’s constitution has been in the area of Federalism – the High Court has been centralising power for a very long time.
The Constitutional Court of South Africa is a good place to start. A judicial council sends a list of nominees to the president. The president appoints one or sends the list back for further consideration. It’s transparent, it allows for public input, it avoids the excessive politicisation of the US system and the executive dominance of our system. Just quietly the South African Bill of Rights, with or without the economic rights, is a much better model to look at than the US.
The Constitutional Court has 9 members. They get a single 18 year term and the terms are arranged so that a judge is appointed roughly every 2 years. I think the critique of the US left is probably right, but it’s exacerbated by 2 features – life appointment and simple majority confirmation. Roberts was barely 50 when Bush appointed him CJ. He could easily remain CJ for another 30 or 40 years, long after the Bush ‘heritage’ is otherwise consigned to the dustbin of history.
The chance for very long term appointments without any consensus is an invitation to politicise the Court. It’s an open question whether Roe V Wade and similar cases drive politicisation, or it’s politicisation that drives Roe v Wade and similar cases. In any case, a more comprehensive bill of rights with more careful drafting than the US would avoid many problems ad leave ultiate power over rights with voters, not judges. The surprise discovery of rights that are not explicitly stated in the US constitution seems to drive much of their activist judge paranoia.
I don’t regard the David Hicks case as very concerning in the broader Australian context, because it arose out of a highly unusual set of circumstances that are unlikely to be repeated and have no implications for legal practice here.
The problem was that though Hicks – even on the version of events given by his supporters – had engaged in military cooperation with a totalitarian force he had not technically breached Australian law as it stood at the time. To have applied the law retrospectively would have breached another important legal principle.
Because the Australian government did not want retrospective legislation but did not want an enemy combatant to go free either, it went along with the US process, which has been absurdly prolonged and resulted in judicial mechanisms that did not have the confidence of many people.
The Hicks case has turned into a fiasco, but it has no consequences for due process here, or for that matter in the United States proper.
The Hicks case is a symptom of a bigger, and far more important, problem I think. The notion that states can act beyond the reach of their domestic courts is problematic. So I have no sympathy for Hicks (I have written elsewhere about what should have happened to him and don’t want to derail this thread), but the ‘Pacific Solution’ is a symptom of that same problem.
Alan said:
Rather than presidential appointment, I think I’d prefer transparent process that produces a shortlist, with a lottery to decide who the actual appointments are.
As for the Hicks case being boring – it’s not a surprising attitude from the political side Andrew comes from. They wish the whole thing would just disappear as it exposes a real contempt for both democracy and the rule of law.
Random selection of High Court judges from say a shortlist prepared by an independent judicial council is an exceedingly good idea. I’ll write it up at South Seas Republic in the next few days. Somehow I suspect Bob Carr will not be persuaded.
“It seems to me though that the right to abortion in Australia isnt derived from the Constitution, or a bill of rights. Rather it follows from the common law and the parliament is happy to let it lay and to tinker around the edges.”
Not exactly. What happened was there were a couple of cases in the early 70s in NSw and Victoria when the judges said that abortion was legal as long as the mother’s life was in danger (or something like that). After that, phew, the political debate was over and abortions were carried out with the right boxes ticked, according to this case law, even if it wasn’t true, and this approach was adopted around the country.
More recently we’ve had a couple of judges very inconveniently say that abortion is unlawful, apart from exceptional circumstances which didn’t apply to the cases on which they were passing judgment. This led to rushed legislation in a couple of jurisdictions (WA and ACT) which legalised that which had been going on de facto for decades.
The still in-complete legalisation of abortion in Australia has not been based common law, or a bill of rights, or laws passed by parliaments. It’s been based on a couple of special cases, and a lot of averting one’s gaze out of political expediency.
Yep. That’s the common law at work.
Isn’t the High Court supposed to be an independant judicial council? Who appoints the appointers? I wish Google language tools had an option for English to Dog Latin.
I’d guess that the appointers will be appointed by the Executive, so we’re probably not solving any problem at all, just inserting a new layer of cushy jobs for partisan hacks. My Magic Eight Ball also prophesied that the random selection means that if indeed the High Court is being stacked with Rabid Partisan Whores – a proposition no-one in this thread seems to actually be arguing – all we will be doing is randomly deciding what kind of Rabid Partisan Whore we get.