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[CHAPTER 3] [ CHAPTER 3 ]

A Mirage? A Mirage?

FOR MOST OF HIS LIFE, FRIEDRICH HAYEK SEEMED CONTENT to be known as an economist, and in 1974 the Nobel Prize was awarded him for his originality in economics. At crucial points, however, the principles in whose light Hayek proceeded included extra-economic principles; for instance, principles of law and representation on the one side, and on the other, principles of morality, truth, and justice. Thus, although he is most widely known for his originality in rediscovering and creatively advancing the theory of the free economy, some of his most important work regards the constitution of liberty and matters of law and legislation.¹ Beyond that, having fought manfully in the war of ideas across most of the breadth of the human experience, in history, philosophy, religion, and social thought, Hayek was also a fierce warrior in the realm of cultural liberty.

Although born in a deeply Catholic culture and ever sympathetic to the religious impulse in human nature, Hayek reluctantly called himself an atheist. He wished he had an “ear” for God, he said, as most people do for music; but he didn’t. He felt it as a lack in himself.

In the heavily ideological post–World War II era, Hayek was keenly aware of the urgent need all around the world to bring together the two parties of liberty, secular and religious. No one party, he thought, could plausibly win the intellectual battle for liberty by itself. Liberty suffered not by too many supporters, but by too few. Hayek correctly foresaw the crucial role religion would play in the defeat of Communism many years later.

Hayek is famous for his sustained and animated criticism of most of the usages of “social justice” to be found in public speech during the middle of the twentieth century. He ripped to tatters the concept as it is usually deployed.² Indeed, he stressed its fundamental contradiction: Most authors claim to use the term to designate a virtue (a moral virtue, by their account). But, then, most of the descriptions they attach to it appertain to impersonal states of affairs: “High unemployment,” they say, for instance, or “inequality of incomes” or “lack of a living wage,” is a “social injustice.” They expect the economic system to attain every utopian goal, as though all such goals are easily within reach and mutually compatible. They imagine that all social systems are under the command of identifiable persons, or should be, and they intend to find those persons and hold them responsible for outcomes of which they do not approve. Their main concern is to indict an entire system and its central institutions.³ For decades many of them seemed to hold that socialism was a superior economic system, toward which history was moving. Their diagnosis, methods, and remedies belong to diverse intellectual traditions: socialist, social democratic, or Catholic.⁴ They seem not to analyze the failures of the systems they prefer.

Hayek’s critique laid out a multitude of objections to then-prevailing modes of thought. But his main thrust went to the heart of the matter: Social justice is either a virtue or it is not. Most of those who use the term do not ascribe it to individual virtue but to states of affairs, as when they assert that this or that state of affairs—unemployment, low wages, deplorable working conditions—is “socially unjust.” Social-justice advocates seldom attempt to change minds and hearts one by one. Instead, they use political muscle to change the laws and to coerce mass compliance. In this respect, they are using the term “social justice” as a regulative principle of order, not a virtue, and by their own lights this is an illegitimate use. They are not appealing to “virtue” but to coercion. Thus “social justice” is a term used to incite political action for the sake of gaining political power. In Hayek’s words:

What I hope to have made clear is that the phrase “social justice” is not, as most people probably feel, an innocent expression of good will towards the less fortunate, but it has become a dishonest insinuation that one ought to agree to a demand of some special interest which can give no real reason for it. If political discussion is to become honest it is necessary that people should recognize that the term is intellectually disreputable, the mark of demagogy or cheap journalism which responsible thinkers ought to be ashamed to use because, once the vacuity is recognized, its use is dishonest.⁵

Social justice! How many sufferings have been heaped on the world’s poor under that banner! How malevolently it rolled off the presses of Lenin, Stalin, Mussolini, and Hitler. It is no wonder Hayek loathed it so.

Hayek alludes to a second defect of twentieth-century theories of social justice. Whole books and treatises have been written about social justice without ever offering a definition thereof.⁶ The term is allowed to float in the air as if everyone will recognize an instance when he sees it. This vagueness seems both studied and indispensable. For the minute one begins to define social justice—as a virtue, for instance, related to the classical Aristotelian virtue of justice—one runs into embarrassing intellectual difficulties. For most of those who use the term do not intend to raise the worldwide quotient of virtue. They employ “social justice” as a term of art, whose operational meaning is “we need a law against that.” They employ it, that is, as an instrument of ideological intimidation, for the purpose of gaining the power of legal coercion.

BEFORE CONTINUING, I must note two ironies in what I am undertaking. First, Hayek’s demolition of false understandings of social justice was necessary before a better concept could come to light, a concept he himself lived out in practice before it could be thematized. (Hayek would have enjoyed this primacy of practice to theory.)

Second, Hayek’s love of theory qua theory more than once led him to make bold claims which seemed at the time wildly at variance with observable phenomena, and for which he was often mocked and made fun of. Let me mention but two: first, that socialism was epistemically blind and, therefore, could not possibly produce rational outcomes on a consistent basis and must eventually falter on its own ignorance.⁷ (For how could state bureaucrats, obliged each day to make up thousands of prices, possibly know how badly multitudes of individuals might want x or y, or how much sweat and effort they would be willing to expend to purchase it?) Again, Hayek argued that the power and permanence of the nation state in the twentieth century were greatly overestimated, and that (for instance) the state’s power to control money would eventually slip out of its grasp. Hayek predicted, when it seemed farfetched, that at some future time private entities in an open market, not governments, would become more reliable guardians of the value of currencies, and that the monopoly power of governments over money would in this way be broken. Today’s internet markets seem to be confirming his point, for through them today’s profligate governments are being disciplined by freely acting individual agents, who emigrate and move their investments elsewhere, learning from many forms of international media what is going on elsewhere and choosing accordingly. New regional institutions broke down isolated nation-state control of unlinked economies, too, such as the Euro and Eurozone, Mercosud, and other unifying creations. As information moved more and more freely, so did freedom of choice.

Hayek made many predictions based upon purely theoretical findings that were later vindicated. I believe, therefore, that he himself would have enjoyed the claim that under a theory of social justice clearer than any he had found in the literature, he himself might be said to have been a practitioner of social justice. That claim will stand, however, only if we first seize the root of Hayek’s objections to the most common construals of social justice that he found around him.

Social Justice Wrongly Understood

Hayek began by noting an anthropomorphic tendency in human thought, an itch to understand all processes, however different in kind, in terms of human agency.⁸ Consider the human animation and psychology given in all ages to animal life, from Aesop’s fables and Grimm’s fairy tales, to Mickey Mouse and Bugs Bunny, to the Three Little Pigs and the Big Bad Wolf. Consider, too, the tendency of humans to understand the general rules by which societies are run in light of individual psychology and individual ethics. Even today many project onto the politics and economics of modern complex societies the same expectations as their ancestors who lived in simple tribes; they personify all outcomes, as if some all-powerful individual chose them or could alter them at will. Initially, Hayek hypothesizes, the term “social justice” was invented to make sense of the complex networks of causation in modern societies.⁹

John Stuart Mill gave this anthropomorphic approach to social questions almost canonical status for modern thinkers in 1861 in Utilitarianism:

Society should treat all equally well who have deserved equally well of it, that is, who have deserved equally well absolutely. This is the highest abstract standard of social and distributive justice; towards which all institutions, and the efforts of all virtuous citizens, should be made in the utmost degree to converge.¹⁰

At the head of his chapter on social justice, Hayek sets quotations from Immanuel Kant and David Hume, who had been much shrewder on the relation between “desert” and reward than Mill. Both saw that “merit” cannot be defined by general rules. Hume’s is particularly sharp: “So great is the uncertainty of merit, both from its natural obscurity, and from the self-conceit of each individual, that no determinate rule of conduct could ever follow from it.”¹¹ In other words, what Mill construes as a heavy moral obligation (“should be made in the utmost degree to converge”), Hume construes as an irrational pretension. Mill makes “merit” and “desert” sound clear and easy; Hume sees them as highly individual, obscure, and subject to self-centered bias. Mill makes “reason” seem luminous, dispassionate, objective; Hume sees reason as distorted and darkened by passion, ignorance, and bias.

Religious thinkers will here be reminded of Reinhold Niebuhr’s sketch of significant differences between the ethics of individuals and the ethics of groups, as in Moral Man and Immoral Society.¹² Both Niebuhr and Hume thought certain conceits about reason could be fatal. And so, of course, did Hayek, whose last book was called The Fatal Conceit.¹³

Hayek argued that justice is the indispensable foundation and limitation of all law. (He had no difficulty speaking of legal discrimination, segregation, or apartheid and the like as “unjust,” and in that sense he might employ the term “an unjust society.”) But he argued, in the same vein, that the reigning conception of social justice—in part codified by Mill—is an abuse of the term justice, and is rooted in a naive anthropomorphic tendency. The abuse consists in taking the term justice out of the realm in which it properly applies to the acts and habits of individuals and using it, illicitly, to name an abstract standard of distribution which authorities ought to enforce—as when Mill speaks of “the highest abstract standards of social and distributive justice, towards which the efforts of all institutions, and the efforts of all virtuous citizens, should be made in the utmost degree to converge.”

Mill here imagines that societies can be virtuous in the same way that individuals can be. Perhaps in highly personalized societies of the ancient type—under kings, tyrants, or tribal chiefs—such a usage might make sense; in such societies, one person made all crucial social decisions. Curiously, however, the demand for the term “social justice” did not arise in earlier societies, in which it might have seemed appropriate, but only in modern times, when more complex societies operate by impersonal rules applied with equal force to all under “the rule of law.”

In ancient societies, however, even kings often made appeal to “reasons of state” to justify behaviors that by the rules of individual ethics would be blameworthy. Still, to the king one could assign personal responsibility. In the sprawling bureaucratic states, however, decisions are beclouded in internal turf wars, intramural tests of will, and decisions made by political horse trading. This is the point Niebuhr had in mind contrasting the possibilities of “moral man” with “amoral society.”

How, then, shall we judge “impersonal mechanisms” and “market forces” that leave some individuals and groups in situations that evoke pity and a sense of moral outrage? We protest against the “injustices” of nature. Do not storms, plagues, wars, and natural calamities of all sorts sometimes punish the just and unjust equally, often unfairly and even unaccountably? From biblical times, such arguments have been advanced against God himself by Job, the Psalmist, and others who saw the just suffer and the unjust prosper. Does God himself lack respect for social justice? Such is our reaction to the ordinary course of nature. It seems only “natural” to extend these feelings to the disappointments and unfair fates we see in the social order. There is a great need in the human breast, Hayek notes, to hold someone accountable, even when in another part of ourselves we recognize that such a protest is absurd:

Yet we do cry out against injustice when a succession of calamities befalls one family while another steadily prospers, when a meritorious effort is frustrated by some unforeseeable accident, and particularly if of many people whose efforts seem equally great, some succeed brilliantly while others utterly fail. It is certainly tragic to see the failure of the most meritorious efforts of parents to bring up their children, of young men to build a career, or of an explorer or scientist pursuing a brilliant idea. And we will protest against such a fate although we do not know anyone who is to blame for it, or any way in which such disappointments can be prevented.¹⁴

The birth of the concept of social justice 150 years ago coincided with two other shifts in human consciousness: the “death” of God and the rise of the ideal of the command economy. “Man,” Aristotle wrote, “is political by nature.” When God “died,” men began to trust a conceit of reason and its inflated ambition to do what God had not deigned to do: construct a just social order. This divinization of reason met its mate in the ideal of the command economy; reason (that is, science) would command, and humankind would collectively follow. The death of God, the rise of science, and the command economy yielded “scientific socialism.” Where this sort of reason would rule, the intellectuals would rule (or so some thought). Actually, the lovers of power would rule.

From this line of reasoning it follows that “social justice” is given an adequate meaning only in a directed or so-called command economy (such as in an army) in which the individuals are ordered what to do, so that under “social justice” it will always be possible to identify those in charge and to hold them responsible.¹⁵ For the notion presupposes that someone is accountable and that people are guided by specific external directions, not by internalized personal rules of just conduct. The notion further implies that no individual should be held responsible for his relative position. To assert that he is responsible would be blaming the victim and denying the relevance of considerations of “social justice.” For it is precisely the function of “social justice” to blame somebody else, to blame the system, to blame those who (mythically) control it.

Some who think in terms of social justice seem unable to imagine a noncontrolled society, based on spontaneous behaviors, observing universal rules internalized by individuals and flowering in individual self-government. Society as they imagine it is always under command. If it is not under their command, they see it as under the command of powerful others, who by definition are foes of the party of social justice and, hence, oppressors. As Leszek Kołakowski writes in his magisterial history of Communism after many years of faithful service to that Party, the fundamental paradigm of Communist ideology is guaranteed to have wide appeal: You suffer; your suffering is caused by powerful others; these oppressors must be destroyed.¹⁶

We are not wrong in perceiving, Hayek concedes, that the effects of the individual choices and open processes of a free society on the fates of individuals are not distributed according to some recognizable principle of justice. The meritorious are sometimes tragically unlucky; the hardworking fail; good ideas don’t pan out, and sometimes those who backed them, however noble their vision and their willingness to take risks, lose their shirts; some evil persons prosper; some of the just languish far below their goals; some receive much greater rewards than others for equal or less effort. The free society isn’t beanbag. It may run on fairer rules and with more equal chances than any other regime known to the human race, but it does not and cannot guarantee equal outcomes.

Further, no one individual (no politburo or congressional committee or political party) has any possibility of designing rules that would or could treat each person according to that person’s merit, desert, or even need. No one has sufficient knowledge of all relevant personal details. As Hume observed, such work is the work of Solomon, and no one is Solomon in his own case. It is work too obscure for humans. As Kant writes, no general rules have a grip fine enough to grab it.

Someone might object that criminal courts assess individual merit and desert all the time. But that objection strengthens Hayek’s point. Systems of criminal justice take for granted that the agent is free in his choices, and that there are clear rules that must not be violated. Criminal courts underline the fact of personal responsibility. If an individual deliberately does violate the law, that is his choice, and it is contrary to the explicit will of the community. “The system made me do it” doesn’t suffice as an excuse, since no one commands individuals or groups to violate the law (in fact, any system commands the opposite). Since the rule-abiding behavior of individuals is essential for its comity, a community can establish rules and pass judgment on violations of them. What it cannot do is imagine, mandate, or guarantee that all free choices of all free citizens, even when they obey all the rules and try hard, will issue in specific outcomes. No one knows all individual outcomes. Too many unforeseen contingencies and unique circumstances enter into each life.

If we wish to live within a system in which people are rewarded for how well they serve their fellow men, it follows that their fellows may not rank their services as high as we expect. Teachers, for example, may be “underpaid.” The choices made by one’s fellows are also free, and introduce a major contingency into the most strenuous efforts and best-laid plans. Sometimes people who work hard and play by the rules are not as well rewarded as others, and sometimes their best efforts fail. For the system as a whole, failures by individuals are important, embodying significant negative feedback from which others may learn. A system that values both trial-and-error and free choice is in no position to guarantee outcomes in advance. Not every acorn becomes an oak; laws of probability work in the social order as well as in nature. No one predetermines or controls who will fail, but every law of probability says that some will. It is not unjust if some acorns fail to become oaks, and it is not unjust if some free acts fail of their intended outcomes.

The attribute of justice may thus be predicated about the intended results of human action but not about circumstances which have not deliberately been brought about by men. Justice requires that in the ‘treatment’ of another person or persons, i.e. in the intentional actions affecting the well-being of other persons, certain uniform rules of conduct be observed. It clearly has no application to the manner in which the impersonal process of the market allocates command over goods and services to particular people: this can be neither just nor unjust, because the results are not intended nor foreseen, and depend on a multitude of circumstances not known in their totality to anybody. The conduct of individuals in that process may well be just or unjust; but since their wholly just actions will have consequences for others which were neither intended nor foreseen, these effects do not thereby become just or unjust.¹⁷

Moreover, it is indispensable to recognize that the term “market” refers to nothing other than the free choices of human beings in exchange: if I sell my house to you, our mutual choosing constitutes “a market.” How these choices will work out for each of us cannot be controlled by either of us.¹⁸

Hayek’s vision of the free society is nobler and higher than the vision of those who speak of “social justice.”¹⁹ They imagine something like a beehive or a herd or a flock, within which someone is responsible both for giving commands and for outcomes. Hayek thought that a free society has no other model in nature, but is wholly unique to the human species. Furthermore, it has been put into practice only during the past two centuries. Only in recent generations has the economic order been intellectually (and in practice) distinguished in its principles of operation from the political order, and both of them from a third, the moral and cultural order. The working of all three of them together is necessary, but the three orders each proceed according to different rules. Further, institutions and practices have arisen that allow individuals unprecedented scope for the actions proper to free persons, and in all three spheres.

Hayek held that free persons are self-governing, able to live by internalized rules (that is, good habits). For this reason, they need only a fair and open system of rules in order to act more creatively, intelligently, and productively than persons in any other form of society. While the free society will never be able to guarantee the outcomes desired by those who speak of “social justice,” it does, Hayek observed, bring more rewards to all, on all reward levels, than any known system. It cannot and will not produce equal rewards for all, only higher rewards for all. Hayek summarizes this position as follows:

We are of course not wrong in perceiving that the effects of the processes of a free society on the fates of the different individuals are not distributed according to some recognizable principle of justice. Where we go wrong is in concluding from this that they are unjust and that somebody is to blame for this. In a free society in which the position of the different individuals and groups is not the result of anybody’s design . . . the differences in reward simply cannot be meaningfully described as just or unjust.²⁰

Hayek observed that within any one trade or profession, the correspondence of reward to individual ability and effort is probably higher than is generally supposed. He surmised, however, that the relative position of those within one trade or profession to those in another is more often affected by circumstances beyond their control.²¹ In certain fields of endeavor, too, for reasons not related solely to hard work or even ability, rewards are higher, even fantastically higher, than in other fields. Television hosts, movie stars, and professional athletes seem to some abnormally overpaid. He concedes that “systematic” considerations of this sort lead to accusations against the existing order rather than against the luck of circumstances of time and place. Technological change, changes in tastes and needs, and changes in relative value are also unpredictable, and in that larger sense spring not from the realm of choice but from the realm of luck.²²

Throughout, Hayek makes a sharp distinction between those failures of justice that involve breaking agreed-upon rules of fairness and those that consist in results that no one designed, foresaw, or commanded.²³ The first earned his severe moral condemnation. No one should break the rules; freedom imposes high moral responsibilities. The second, insofar as they spring from no willful or deliberate act, seemed to him not a moral matter, but an inescapable feature of all societies and of nature itself. Insofar as labeling these results a “social injustice” leads to an attack upon the free society in order to move it toward a command society, he strenuously opposed the term for its enormous destructive potential. The historical records of the command economies of Nazism and Communism warranted his revulsion to that way of thinking.

Hayek recognized that at the end of the nineteenth century, when the term “social justice” came to prominence, it was first used as an appeal to the “ruling classes” (as they still were) to attend to the needs of the neglected new masses of uprooted peasants who had become urban workers. To this he had no objection. What he did object to was careless thinking and the coercion of free and creative societies by a remote conception of justice.²⁴ Careless thinkers forget that justice, in the nature of the case, is social. The addition of “social” to “justice” is like adding “social” to “language.”²⁵ This move becomes especially destructive when the term “social” no longer describes the actual outcome of the virtuous actions of many individuals, but rather a utopian goal. Toward such utopian goals, as Mill put it, all institutions and all individuals are to “the utmost degree made to converge.” In that case, the term “social” in “social justice” does not refer to something that emerges organically and spontaneously from the rule-abiding behavior of free individuals, but rather from an abstract ideal imposed from above.²⁶

Behind Hayek’s objections to the careless use of “social justice” lies his uniquely powerful insight into the nature of the free society. Hayek recognized that the nineteenth century’s addition of the free economy to the eighteenth century’s “new science of politics” had liberated women and men as never before. For instance, in lifting the proletariat into the middle class, as even the Marxist Antonio Gramsci had confessed in the 1930s, capitalism was far more successful than Marx and Lenin had predicted. Soon, he saw, there would be no more proletariat in Italy.²⁷ With great rapidity, in little more than a hundred years, Europe’s impoverished, uprooted peasants (Victor Hugo’s les misérables) had been lifted into the middle class and educated and were astonishing the world by their talent and creativity.

Hayek believed that the key to these successes of liberty was the rule of law and internalized, law-abiding, creative habits on the one hand, and on the other hand an economic system founded on rules that maximize free decisions, discovery procedures, and feedback mechanisms. Open to contingency, chance, and serendipity, such a system was already providing unparalleled universal opportunities. But it could not, and must not be expected to, guarantee outcomes. For any attempt to impose outcomes would force a new and foreign architectural principle upon the system; it would strangle the liberty from which invention and discovery bloomed. Recoiling from the dishonesty and destructiveness of the usual arguments for “social justice,” Hayek writes: “I have come to feel strongly that the greatest service I can still render to my fellow men would be that I could make the speakers and writers among them thoroughly ashamed ever again to employ the term ‘social justice.’”²⁸

“Social justice” would end up harming most of those whom it putatively intended to help. Its chief beneficiaries would be the political and administrative classes. Ironically, it would by its own standards produce unjust societies. The legislators and their experts would be more equal than others and live by different rules from those they prescribed for the rest of society.