By Cass R. Sunstein
If American conservatives have an intellectual hero, it might well be Friedrich Hayek -- and rightly so. More clearly than anyone else, Hayek elaborated the case against government planning and collectivism, and mounted a vigorous argument for free markets. As it turns out, Hayek simultaneously identified a serious problem with the political creed of President-elect Donald Trump.
One of Hayek’s most important arguments in his great classic, "The Road to Serfdom," involves the Rule of Law, which he defined to mean “that government in all its actions is bound by rules fixed and announced beforehand.” Because of the Rule of Law, “the government is prevented from stultifying individual efforts by ad hoc action.”
In "The Road to Serfdom" and (at greater length) in "The Constitution of Liberty," Hayek distinguished between formal rules, which are indispensable, and mere “commands,” which create a world of trouble, because they are a recipe for arbitrariness. When formal rules are in place, “the coercive power of the state can be used only for cases defined in advance by law and in such a way that it can be foreseen how it will be used.”
Like the rules of the road, formal rules do not name names. They are useful to people who are not and cannot be known by the rule-makers -- and they apply in situations that public officials cannot foresee.
Commands are altogether different. They target particular people and tell them what to do. (Think Hitler’s Germany, Stalin’s Soviet Union, Mao’s China, Castro’s Cuba.) They require the exercise of discretion on the spot. As examples, Hayek pointed to official decisions about “how many buses are to be run, which coal mines are to operate, or at what prices shoes are to be sold.”
Hayek offered two arguments on behalf of the Rule of Law. The first is economic: If the government’s actions are predictable, then people are able to plan. In his famous formulation, “the more the state ‘plans,’ the more difficult planning becomes for the individual.” If officials are issuing commands, it will become much harder for people to have the kind of security that is a precondition for economic development and growth.
Hayek’s second argument, moral in character, involves a specific value: impartiality. When the Rule of Law is intact, public officials act behind a veil of ignorance. If the government does not know who will be helped or hurt by what it does, it cannot play favorites or take sides. For Hayek, the state should never specify “how well off particular people shall be and what different people are to be allowed to have and to do.”
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