Dissent Magazine

WHEN HAYEK strays from discussing the evils of the planned economy he becomes markedly less convincing, and the political strength of for-profit medicine rather ironically suggests something that Hayek misses about spontaneous collectivist tendencies. This is the unfortunate but inevitable tension between institutional rent-seeking and civil society. Yes, it is true that unions and chambers of commerce and gun enthusiasts and environmentalists and industrial sectors and doctors and lawyers and Indian casinos will band together and attempt to capture the machinery of government to further their own particular interests, often—usually—at the expense of rivals who are locked out of participation (and of the social and economic choices of individual citizens). Hayek’s solution is to deny the legitimacy of any movement to impose restraint on competition. The paradox is that forming spontaneous associations for the collective good of insiders seems to be a universal human activity. When individuals are free to make choices, this is invariably what they choose to do. Hayek’s principle might be sound, if applied universally, which it could never be. The practice would devastate civil society, and with it democracy. And in the real world, most of Hayek’s admirers have been content to thunder against unions while indulging industrial lobbies. Perhaps the best that we can hope for is some reasonable restraints on outright collective gangsterism of the left or the right, monitored, assessed, and readjusted as necessary. Democracy is a ramshackle structure.

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So to Hayek, the common law is a spontaneous phenomenon, without obvious human direction. In a sense law is related to custom in this manner, but there is no guarantee that honoring this concept of the nomos leads to an enlightened condition of liberty. Isn’t the barbaric (I use the word with no relativistic embarrassment) practice of female genital mutilation derived from this sort of nomos? Hayek is susceptible to this mistake precisely because he is distrustful of all human attempts to define authority and so prefers a mystical, holistic origin for it. I did begin this essay by remarking that Hayek is a romantic.

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